HomeMy WebLinkAbout01. First Amend to PSA - 11022 Downey Ave - Adopt ResoItem
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APPROVED
TO: CHAIR AND MEMBERS OF THE COMMUNITY DEVELOPMENT CITY
MANAGER
COMMISSION — HOUSING SUCCESSOR AGENCY
DIRECTORFROM: OFFICE OF THE EXECUTIVE
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r• E. SCHINDLER,DIRECTOR OF • DEVELOPMENT
DATE: 2019
SUBJECT: FIRST AMENDMENT • PURCHASE r 1
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Staff recommends that the Downey Community Development Commission of the City of
Downey under its capacity as the Housing Successor Agency, authorize its Executive Director
to execute a First Amendment to the Purchase and Sale Agreement with the Avenue Theater,
LLC for the Downey Community Development Commission — Housing Successor Agency
owned property located at 11022 Downey Avenue, and adopt the following Resolution:
SUCCESSORA RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION HOUSINl
AGENCY OF OF DOWNEY APPROVING
AMENDMENT • THE PURCHASE AND SALE AGREEMENT FOR PROPERTY
LOCATED 1 DOWNEY AVENUE, DOWNEY CA, TO THE AVENUE
THEATER, LLC.
r •
The Downtown Downey Specific Plan ("DDSP") was initiated by the City to guide growth and
development in Downtown, encourage economic revitalization, and create a lively center of
activity for the City. Downtown Downey is envisioned as a vibrant urban center providing a wide
array of dining, working, living, shopping, entertainment, and cultural opportunities all within a
short walking distance. The DDSP also recommends the City of Downey should be an early
investor in its own revitalization effort by providing financial and regulatory assistance for key
projects or sites that are likely to facilitate the redevelopment of Downtown.
At their November 7, 2016 City Council meeting, the City Council acting under its capacity as
the Downey Community Development Commission — Housing Successor Agency ("Housing
Successor Agency") approved staff's recommendation to enter into a Purchase and Sale
Agreement for this subject property at 11022 Downey Avenue, which is known as the "former
Avenue Theater"; the sale amount is $750,000. The Avenue Theater last functioned as a movie
theater in 2003, and has been vacant and unused since.
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT —
11022 DOWNEY AVENUE
MARCH 26, 2019
PAGE 2
Since 2016, escrow was opened to facilitate the real estate transaction, the Avenue Theater,
LLC ("Buyer") has completed the entitlement process, received Planning Commission approval
on January 3, 2018, conducted a forensic analysis of the building structure, and started the
process of drafting the construction drawings for submission to the City's development
permitting divisions of: Building and Safety, Planning, Public Works, and the Fire Department.
The Buyer has requested additional time to submit their completed building plans, due to the
complex nature of the old, deteriorated, and obsolete use and design of the former single
screen theater building. The Buyer is requesting to extend the terms of the existing Purchase
and Sale Agreement until June 28, 2019.
If approved, as consideration to the Housing Successor Agency for entering into this
Amendment, the Buyer agrees to pay the Housing Successor Agency $20,000. The Buyer will
deposit this sum into the escrow account and the $20,000 will become non-refundable if Buyer
fails to close the sale and secure building permits for construction on the property by June 28,
2019.
The Buyer has created ventures such as the Gaucho Grill Restaurant located at The
Promenade at Downey, as well as in three of Southern California's other sought after locations,
Brentwood, Burbank and Downtown Long Beach. In addition, their other restaurants, Agaves
and Alegria located in Downtown Long Beach, have been at the heart of the creative Downtown
Long Beach movement for over 15 years.
The Buyer plans an adaptive reuse within the same footprint of the former Avenue Theatre
building. As such, it is their intent to adaptively reuse the site into two restaurants and a lounge.
The concept is the confluence of living and working in the cuisine, libation, entertainment and
restaurant industries. This multi -functional complex will host a balanced mix of restaurants and
identities, sure to deliver the highest levels of gastronomic and entertainment experiences to its
patrons.
The brick facade around the perimeter of the building and the theatre marquee are of special
and unique interest to the community and Buyer. The restoration and preservation of the
masonry and theatre marquee is very important for their project. Two new storefronts will bring
the building back to life. The existing marquee will be preserved and fully restored. Downey
Avenue will provide the entryway to one restaurant, while a second restaurant will face directly
onto 3rd Street. The brick facade of the northerly -facing wall will open from the ground up. The
majority of the masonry around the perimeter of the building will be adaptively preserved and
repurposed.
The site will be sold "As -Is". The Purchase and Sale Agreement provides various safeguards to
assure the project is completed within the general concept presented by the Buyer. A Schedule
of Performance was included in the Purchase and Sale Agreement to keep the project on track
for completion. This schedule will be revised to reflect the time extension request. A Right of
First Refusal and Repurchase Clause was included to allow the Housing Successor Agency the
ability to repurchase the property if necessary. It is also important to the Housing Successor
Agency that the Buyer be the entity that completes the project. Therefore, the Housing
Successor Agency was also provided the ability to review any transfer of ownership prior to the
issuance of a Certificate of Occupancy.
FIRST ArTIERDRIERT TO PfRGMASE ARD SALE AGREEInE1!T---
11022 DOWNEY AVENUE
MARCH 26, 2019
PAGE 3
40MIN =-
KOO] Ks) I I I L'SATJ I a] r� 1 a IWA
FISCAL IMPACT
Attachment A: Site Photos
Attachment B: Aerial View
Attachment C: Resolution, with 1 st Amendment to Purchase and Sale Agreement
Attachment D: Purchase and Sale Agreement
URFMITIT-TRIMM
• i •
RESOLUTIONOF i DEVELOPMENT COMMISSION HOUSING
SUCCESSOR OF OF DOWNEY APPROVING
AMENDMENT • THE PURCHASE AND SALE AGREEMENT FOR`i`
LOCATEr AT 11022 DOWN EY AVE N U E, DOWN EY CA, TO
THEATER, LLC.
WHEREAS, the Community Development Commission of the City of Downey, in its
capacity to function as a housing authority and as the "Housing Successor Agency" for the
assets and functions of the former redevelopment operations of the Community Development
Commission of the City of Downey pursuant to Health and Safety Code section 34172(x) and
34176 (the "Downey Community Development Commission — Housing Successor Agency"), is
authorized to dispose of the property located at 11022 Downey Avenue (the "Subject Property");
and
WHEREAS, the Housing Successor Agency has negotiated a Purchase and Sale
agreement with Avenue Theater, LLC ("Buyer"), pursuant to which the Housing Successor
Agency would sell the Property, located at 11022 Downey Avenue Downey, CA for a sales price
of $750,000; and
WHEREAS, the Housing Successor Agency 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.
WHEREAS, the Buyer has requested additional time to submit their completed building
plans, due to the complex nature of the old, deteriorated, and obsolete use and design of the
Subject Property. The Buyer is requesting to extend the terms of the existing Purchase and
Sale Agreement until June 28, 2019.
WHEREAS, as consideration to the Housing Successor Agency for entering into this
First Amendment, the Buyer agrees to pay the Housing Successor Agency $20,000. The Buyer
will deposit this sum into the escrow account and the $20,000 will become non-refundable if
Buyer fails to close the sale and secure building permits for construction on the property by
June 28, 2019.
SECTION 1. The Housing Successor Agency of the City of Downey hereby (i)
approves the First Amendment to the Purchase and Sale Agreement, copy of which attached
hereto as Exhibit "A", and is on file with the City Clerk, (ii) if required, authorizes and directs
the Executive Director to make final changes to the First Amendment to the Purchase and Sale
Agreement consistent with the Housing Successor Agency's direction, and (iii) authorizes and
directs the Executive Director 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 Housing Successor Agency hereby determines that the sale of the
property at 11022 Downey Avenue qualifies for a Class 12 (15312 - Surplus Government
Property Sales) CEQA Exemption. It is not located in an area of statewide, regional, or area
wide significance, is not a significant value for wildlife, and the use of the property and adjacent
properties has not changed since the Housing Successor Agency purchased it.
Attachment "C"
SECTION 3. The adaptive reuse of the property will result in the elimination of blight
and the market value proceeds of the sale of the Subject Property shall be deposited into the
Low and Moderate Income Housing Asset Fund administered by the Community Development
Commission — Housing Successor Agency pursuant to Health and Safety Code sections 34176
and 34176.1, and any other applicable law.
SECTION 4. The City Clerk shall certify to the adoption of this resolution.
APPROVED AND ADOPTED this 26`h day of March, 2019.
RICK RODRIGUEZ
Chair
ATTEST:
MARIA ALICIA DUARTE, CMC
City Clerk
I HEREBY CERTIFY that the foregoing Resolution was adopted by the CDC — Housing
Successor Agency of the City of Downey at a regular meeting held on the 26'h day of March,
2019, by the following vote, to wit:
AYES:
Commission Members:
NOES:
Commission Members:
ABSTAIN:
Commission Members:
ABSENT:
Commission Members:
MARIA ALICIA DUARTE, CMC
City Clerk
AVAK010199 IN T FA
This First Amendment to the Purchase and Sale Agreement and Joint Escrow Instructions
(the "Agreement"), is entered into between the Downey Community Development Commission
Housing Successor Agency (the "Seller") on the one hand, and Avenue Theatre, LLC., a Limited
Liability Company, and Successor -In -Interest to Downey Restaurant Group, Inc., a California
corporation ("Buyer") on the other.
WHEREAS Buyer and Seller entered into that certain Purchase and Sale Agreement and
Joint Escrow Instructions (the "Original Agreement") for the purchase and sale of that certain real
-#rj?
10,393 square feet of land located at 11022 Downey Avenue in the City of Downey, County of Los
Angeles, State of California, commonly referred to as Assessor's Parcel Number 6254-019-904 (the
"Property"), all as more fully described in the Original Agreement; and
WHEREAS Section 4(b) of the Original Agreement provided for a Feasibility Period durinv
which Seller granted Buyer reasonable access to the Property upon notice for purposes of conductinp
such ph,�r—si�i vections and investiUations of the Proipertri as Bu -- jir 4 yw -5
iier d=m& xkwsT%oe, 4i�, mm
DATE; and
WHEREAS the Buyer and Seller desire to extend the term of the Feasibility Period as
otherwise described in the Original Agreement until June 28, 2019, without changing any of the
other terms of the Original Agreement,
Section 1. Exteiision ofFeasibility Period. Section 4(b) of the Original Agre-ement is hereby
amended to read in its entirety as follows:
(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 June 28, 2019. 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 Section 4(b)
then before the ex Diration of the eriod or an,, ex
11 Feasibilill P i
01NIF " - NEM- MMUMMIFUTE
65012,00202',31901461,3
Notice to Terminate"). If Buyer desires to proceed with the purchase of the Property
r - Ag_ • • •_ •
expiration of r 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 Section 4(b) and proceed with the Closing
subject i the remaining conditions set forthAgreement. If Buyer failsto
electeddeliver either Buyer's Notice to Terminate or Buyer's Notice to Proceed to Seller
prior to the expiration of the Feasibility Period, then Buyer shall be deemed to have
to proceed with this Agreement . • the Closing.
Section 2. Consideration. As consideration to Seller for entering into this Agreement, Buyer
agrees to pay Seller the sum of Twenty Thousand Dollars and No Cents iii
"Consideration"). Buyer shall deposit into Escrow the Consideration in cash or other immediately
available funds within three (3) business days of execution of this Agreement, The Consideration is
non-refundable if Buyer fails to close the sale and secure building permits for construction on the
Property by June 28, 2019.
Section 3. Deposit o f'Ag reement Into I "scrow. Upon mutual execution of this Agreement, the
•. • i ` •• . `• • • of Agreement with Escrow• l' and this
Agreement •shall rfurtherinstructions• Escrow •consummation of purchase
contemplated by Original
Section 4. No Other Amendments. All of the remaining terms of the Original Agreement
remain in full forceand effect and no other amendmentsintended by Agreement.
Section • ` rr Agreement may be signed in multiple counterparts
when signed by all parties, shall constitute a binding agreement.
IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day of
March 2019.
sum=i fmu.
65012.00202\31901461.3 - 2 -
Downey Community Development
By:
Gilbert A. Livas
Executive Director
ATTEST -
By:
Maria Alicia Duarte, CMC
City Clerk
APPROVED AS TO FORM:
By:OMOL-I-
Ruben Duran, Esq.
Partner, Best Best & Krieger, LLP
Special Counsel to the Seller
Avenue Theatre, LLC., A Limited Liability
Company, and Successor -In -Interest to
Downeki Restaurant Groujo lnc., a California
corporation
WI
65012.00202\31901461.3 - 3 -
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Downey Community Development
Commission — Housing Successor Agency, a
public body, corporate and politic
1'3%:
Gilbert A. Livas
Executive Director
ATTEST:
By:
Maria Alicia Duarte, C
City Clerk
APPROVED AS TO FORM.
By:
Ruben Duran, Esq.
Partner, Best Best & Krieger, LLP
Special Counsel to the Seller
Avenue Theatre, LLC., A Limited Liability
Company, and Successor -In -Interest to
Downey Restaurant Group, Inc., a California
corporation
Ailan Ai
Orcsident
65012.00202\31901461 3 - 3 -
by and between the
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PURCHASE AND SALE A"DEEM ENTANI) JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into as of November A, 2016 (the
"Effective Date," which is the date upon which this Agreement was executed by both parties),
by and between the Downey Community Development Commission -Housing Successor
Agency, a public body, corporate and politic ("Seller"), and Downey Restaurant Group,
California corporation
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller and
Buyer hereby agree as follows:
1. PLIN11USC ilild StlC Of 1'rOlMly. 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 in this Agreement, the following (collectively, the "Property"): That certain real
Ir •r improved with an approximately 9,240 square foot former theatre situated on
approximately 10,393 square feet of land located at 11022 Downey Avenue in the City of
Downey, County of Los Angeles, State of California, commonly referred to as Assessor's Parcel
Number 6254-019-904 all as more fully described in Exhibit A (the "Land"), together with all
rights, privileges, easements or appurtenances to or affecting the Land (collectively, the
"Appurtenances").
(a) The purchase price for the Property ("Purchase Price") shall be Seven
Hundred Fifty Thousand Dollars ($750,000).
(b) The Purchase Price shall be paid as follows:
W Within three (3) days following the Effective Date, Seller arm
Buyer shall open an escrow in connection herewith ("Escrow") at Security Land Escrom
Company 10805 Paramount Blvd., #A Downey, CA 90241 ("Escrow Holder"), and Buyer sh
deposit into Escrow the amount of Twenty Thousand Dollars ($20,000) ("Deposit") in cash
other immediately available funds. I
(ii) The Deposit shall be held by Escrow Holder in an interest-bearing
account for the benefit of Buyer in accordance with this Agreement.
Feasibility Consideration. Unless Buyer has elected to termin
this Agreement by delivering Buyer's Notice to Terminate to Seller as described in Section 4(
a]
(I
below, on the sixty-first (61st) day after the Effective Date the entire Deposit ("Retaint
Amount") shall be released to Seller and shall be non-refundable to Buyer for any reason oth,
than a default under this Agreement by the Seller. The Retained Amount is consideration
Seller for holding the Property off the market during the "Feasibility Period" (as defined belo
and granting Buyer the right to acquire the Property in accordance with this Agreement, if Buy
approves the Property during the Feasibility Period. Notwithstanding anything to the contrary
6518&00000\29329050.7
T11 I 7-X-g=T M -
not include the Retained Amount, except in the event of a default by Seller.
(iv) At least one business day 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 Ilie lllrol2��gy. 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 B and incorporated herein by this reference (the "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
extended 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 coverage
contain such special endorsements as Buyer
may reasonably require, including, without limitation, any endorsements required as a condition
to Buyer's approval of any title exceptions (the "Endorsements"). Within five (5) business days
following the opening of Escrow, Seller shall order the issuance of a preliminary title report with
respect to the Property, together with copies of all underlying documents referenced therein
(collectively, the "Preliminary Report"), to be prepared by Pacific Coast Title Company, and
delivered to Buyer. No later than thirty (30) business days after receipt of the Preliminary
which Buyer disapproves ("Buyer's Disapproval Notice"). Failure of Buyer to notify Seller of
Buyer's disapproval of all or any item on the Preliminary Report shall be deemed to be an
approval by Buyer of such item(s). In any event, Seller covenants to remove as exceptions to
title prior to the Closing, any mortgages, deeds of trust, or similar monetary indebtedness
(collectively, "Disapproved Liens") shown on the Preliminary Report except for real property
taxes not delinquent. Seller shall notify Buyer no later than five (5) business days after receipt of
Btiver's DisanQroval Notice whether it elects to remove such other items disapproved by Buyer,
lt by the expiration of Ine VeasIDnTTtTTMU-,TM- =EEM7TIr-UXMUpn - - 017r, am
modified to the satisfaction of Buyer and/or removed prior to the Closing Date, then Buyer may
elect to do either of the following by the expiration of the Feasibility Period: (i) accept such
exceptions and proceed to take title to the Real Property subject to such exception(s); or (ii) this
Agreement may be terminated in accordance with Section 4(Li). In the event Buyer elects to
terminate this Agreement pursuant to this Section 3, neither party shall have any further
state that they survive termination).
4. l-'easibility.-
(a) From and after the Effective Date until the Closing or earlier termination
of this Agreement, Seller shall afford authorized representatives of Buyer access to the Property,
upon reasonable prior notice to Seller, and so long as such access does not unreasonably interfere
2
65186.00000129329050.7
with the conduct of business on or use of the Property, for purposes of conducting such physical
inspections and investigations of the Property as Buyer deems necessary (the "Inspections").
The Inspections and investigations may include, without limitation, (i) a review of existing
zoning, entitlement, planning or similar issues applicable to the Property; (ii) a review of the
physical condition of the Property and the systems serving the Property; (iii) a review of the
environmental condition of the Property, including a Phase I environmental site assessment and
any proposal regarding a Phase 11 environmental site assessment. Buyer agrees not to conduct or
cause to be conducted a Phase 11 environmental site assessment without the prior written consent
of Seller. Buyer's Inspections and investigations shall be governed by Section 14. Further,
concurrent herewith, Seller and Buyer will enter into an Access Agreement in substantially the
form set forth on Exhibit C with respect to Buyer's Inspections.
(11) As used herein. [tie terill ("Feasibility Period") shall refer to it period c
time to expire at 5:00 Imn., California Orne, on the one-liundrecl-eiglitieth (180calendar da
following the Fflective 1)ate, provided, however, that if the l8d" clay is a Saturday, Sunday•
holiday on which banking institutions are closed in the State of California, then the Feasibilit
Period shall expire on the following business day. Buyer may elect, by written notice to Seller,
any time prior to the expiration of the Feasibility Period, to terminate this Agreement, whic
election shall be in Buyer's sole and absolute discretion. Buyer may elect to extend ff
Feasibility Period for no more than two (2) additional periods of ninety (90) days each; suc
election must be presented to Seller in writing no less than ten (10) days prior to the expiration (
the then -in -effect period. If Buyer desires to terminate this Agreement pursuant to th
Section 4(N then before the expiration of the Feasibility Period (or any extension thereof), Buy(
shall deliver written notice to Seller of Buyer's election to terminate (the "Buyer's Notice I
Terminate"). If Buyer desires to proceed with the purchase of the Property subject to d.
remaining conditions set forth in this Agreement, then on or before the expiration of tt
Feasibility Period, Buyer shall deliver written notice to Seller of such election to proceed (tf
"Buyer's Notice to Proceed"), electing to waive Buyer's right of termination pursuant to th
Section 4(b) and proceed with the Closing subject to the remaining conditions set forth in th
Agreement. If Buyer fails to deliver either Buyer's Notice to Terminate or Buyer's Notice I
Proceed to Seller prior to the expiration of the Feasibility Period, then Buyer shall be deemed i
have elected to proceed with this Agreement and the Closing.
(c) In the event Buyer elects to terminate this Agreement pursuant
Section 4(1j,) elle
or if Closing does not occur for any reason, Buyer shall return all Selle
Deliveries to Seller, as well as Buyer's Reports, as defined hereafter. Buyer further agrees th
prior to Closing, Buyer shall provide Seller with copies of all studies, reports, appraisals a
Iis
other materials commissioned by or prepared for Buyer relating to or regarding the Proper
("Buyer's Reportsif any, at no cost to Seller.
6. Conditions to Seller's Oblif-"ations. Seller's obligations hereunder, including, b
not limited to, its obligation to consummate the purchase transaction provided for herein,
subject to the satisfaction, in Seller's sole and absolute discretion, of each of the followi
is for the sole benefit of Seller and may be waived by Seller in writin]
3
65186,00000\29329050.7
(b) 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
Close of Escrow.
7. Conditions Pi-ecedent to Closi
U. The following are conditions precedent to
Buyer's obliga�ionto purchase the Property (the "Conditions Precedent"). The Conditions
Precedent are intended solely for the benefit of Buyer and may be waived only by Buyer in
writing. In the event any Condition Precedent is not satisfied, Buyer may, in its sole and
absolute discretion, terminate this Agreement, subject to the provisions of Section 8.
(a) Buyer's inspection, review and approval, within the Feasibility Period, of
all of the following:
(i) The physical characteristics and condition of the Property
(including without limitation the condition of the soils);
(b) On or before 5:00 p.m., California time, on the date that is sixty (60)
calendar days following the Effective Date, Buyer shall have undertaken a forensic structural
inspection of the improvements located on the Property as necessary to facilitate Buyer's initial
design of alterations to be made to such improvements following the Closing and shall have
approved the results of such forensic structural inspection ("Forensic Structural Inspection
Condition"). Buyer's failure to timely deliver notice to Seller of Buyer's disapproval of the
Forensic Structural Inspection Condition shall be deemed Buyer's waiver of the same.
(c) On or before the Closing, Buyer shall have obtained any and all approvals
necessary to acquire the Property and develop the Property following the Closing as
contemplated by Buyer including, without limitation, (i) approval from one or more
equity/financing partners to provide the necessary funds to acquire and develop the Property; (ii)
approval by the City of Downey to the issuance of the CUP (as defined below); (iii) approval by
the City of a building permit that is ready to be issued other than the payment of ordinary permit
fees; and (iv) approval by the California Department of Alcohol Beverage Control ("ABC") of
the issuance to Buyer of at least one (1) Type 47 license (collectively the "Development
Condition").
(d) Buyer acknowledges that Seller cannot and is not pre -committing the
approval of the CUP by approving this Agreement. Issuance of the CUP is a discretionary
apjv.r�ovabp the Planning
concerning the issuance or the scope of the CUP. Notwithstanding, Seller will use its best efforts
to ensure timely and fair consideration of Buyer's application for the CUP.
(e) As used herein, the term "CUP" shall mean a conditional use permit that
authorizes the following uses of the Property, subject to discretionary approval by the Downey
Planning Commission: (1) live entertainment; (2) dancing; (3) performance dancers used with
live music and entertainment, including those used in the dancing styles of flamenco, merengue,
4
65186 00000129329050,7
center,salsa, rumba, samba, tango and others; (4) amplified music; (5) private rental for s ffia'ev"nm
i `f 1 valet parking;rooftop entertainment, a hou
of operation through 2:00 a.m.; (9) patio dining on the sidewalk along 3rd Street and Down
Avenue; (10) removal of two city trees on 3rd Street; and (11) four Type 47 or Type 48 licens
from the ABC to be utilized at the Property. Each and every use on the Property shall comply
all times with the Downey t. •ti" and at no time shall the live entertainment,danci
or performance dancers consist of or include any activity defined in Section 9402.04 of t ,
114, t under the Section 98161
the Downey Municipal Code.
(f) Buyer further acknowledges that, if approved, the CUP will not be fin
and binding until the expiration of the fifteen (15) day appeal period under Downey Municip
Code ' • 9806.04.
(g) Escrow Holder shall be unconditionally committed to issue the Tit
Policy to Buyer upon the Closing in the form and with such exceptions and endorsements
have been approved, or are deemed approved, by Buyer as provided in Section 3 above.
(h) Seller shall have complied of duties and obligatio
contained in this Agreement and all of Seller's representations and warranties contained in
made pursuant to this Agreement shall have been true and correct when made and shall be tr
and correct as of the Closing Date.
r
r r; i •, . � ; r .� r .
r ff � ; r r' r • i r• r r' • r
5
65186.00000\29329050.7
PURSUANT TO THIS SECTION 8.
INITIALS: Seller Buyer
9. Escrow, Closinp-, Prorations.
(a) Upon mutual execution of this Agreement, the parties hereto shall deposit
shall serve as
instructions to Escrow Holder for consummation of 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 of 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 of any conflict between the provisions of this Agreement and any
supplementary Escrow instructions signed by Buyer and Seller, the terms of this Agreement shall
control.
(b) The Closing shall take place (the "Closing Date") on or before the date
that is five (5) days following the expiration of the Feasibility Period or any extension thereof.
(c) At or before the Closing, Seller shall deliver to Escrow Holder or Buyer
W the duly executed and acknowledged Grant Deed for the Property
and Bill of Sale, if applicable;
(ii) 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 2613 1;
(iii) 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;
(iv) a closing statement in form and content satisfactory to Buyer and
Seller (the "Closing Statement") duly executed by Seller; and
(v) 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
6
65186.00000\29329050,7
evidence reasonably acceptable to Seller that the documents
delivered to Seller 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. Additionally,
concurrently with the delivery of an executed copy of this Agreement to Escrow Holder, Buyer
and Seller shall deliver to Escrow Holder a fully executed and acknowledged copy of a
Memorandum of Purchase and Sale Agreement substantially in the form attached hereto and
incorporated herein as Exhibit E ("Memorandum"). On the business day following the date on
which Buyer makes the Deposit, Escrow Holder shall record against the Property the
Memorandum.
(f) The following are to be paid by Buyer or Seller or apportioned as of the
Closing Date, as follows:
W General real property taxes for the year in which Closing occurs
together with assessments, property operating expenses, utilities and other recurring costs
zri
day month.
(ii) Costs and expenses of Escrow incurred in this transaction shall be
(1) Seller shall pay all sales, use and documentary transfer
taxes (except as provided in Sqhpara1zrapl A
jLijil )below);
(2) Seller shall pay the premium for a standard CLTA 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;
(4) Seller and Buyer shall each pay one-half (1/2) of any city
15) all other costs of escrow shall be paid equally by Buyer ayrf
10. Representations, Warranties and Covenants of Seller. As of the date hereof
again as of Closing, Seller represent and warrants to Buyer as follows:
(a) Seller. Seller is duly organized, validly existing and in good standi
11
under the laws of the State of California. This Agreement and all documents executed by Sel
7
65186.00000\29329050.7
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, approvals and consents to the execution
and delivery of this Agreement and the consummation of the transactions contemplated hereby.
(b) No Ac(ion. No attachments, execution proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending
against Seller, nor are any such proceedings contemplated by Seller;
(c) N� �Re yesentations as to _RMnerty. There are no representations,
7greements, 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
Seller has not made and does not make any representation or warr anty 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
ilf 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
sf 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
*f 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,
ater or mineral conditions- the condition of title to the
Property; the existence of governmental laws, statutes, rules, regulations, ordinances, limitations,
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. Seller will not be
liable for any loss, damage, injury or claim to any person or property arising from or caused by
the development of the Property by Buyer.
Except with respect to a default by Seller hereunder (including a breach of Seller's
warranties and representations), Buyer at the Close of Escrow expressly waives its rights granted
under California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT Wl'1-L14fiE DEBTOR."
Buyer's Initials: Seller's Initials:
1�epre,entations�- �Irrantiqs and Covenants o1LBu_ycr, Buyer hereby represents
and warrants to Seller as follows:
(a) Buyer is a corporation, duly organized, validly existing and in good
standing under the laws of the State of California. This Agreement and all documents executed
duly authorized, executed and delivered by Buyer, are and at the time of Closing will be legal,
valid and binding obligations of Buyer enforceable against Buyer in accordance with their
respective terms, and do not and at the time of Closing will not violate any provision of any
agreement or judicial order to which Buyer 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, 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 MaLters/Release. As used in this Agreement, "HazardoM
Materials" includes petroleum, asbestos, radioactive materials or substances defined
"'hazardous substances," "hazardous materials" or "toxic substances" (or words of simil
III
import) in the Comprehensive Environmental Response, Compensation and Liability Act
Section 9601 eQ
_cLs Q. the Hazardous Materials Transportation
(49 U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act
Section 6901, et seq.), and under the applicable laws of California. Buyer must rely on it's o
investigation and not on any representation by Seller regarding Hazardous Materials. Buy
shall rely solely upon its own investigation and inspection of the Property and the improvemen
thereon and upon the aid and advice of Buyer's independent expert(s) in purchasing the Propert.
and shall take title to the Property without any warranty, express or implied, by Seller or a
employee or agent of Seller. Seller makes no representations regarding Hazardous Materials ii
9
65186.00000\29329050 7
on or under the Property. Seller's knowledge and disclosures regarding Hazardous Materials ar4
limited to the contents of Seller's Deliveries.
Accordingly, Buyer hereby expressly waives and relinquishes any and all rights
and remedies Buyer may now or hereafter have against Seller, whether known or unknown,
with respect to any past present, or future presence of Hazardous Materials on, under or about
the Property or with respect to any past, present or future violations of any rules, regulations or
Hazardous Materials, including, without limitation (i) any and all remedies Buyer may now or
hereafter have under the Comprehensive Environmental Response Compensation and Liability
Act of 1980 ("CERCLA"), as amended, and any similar law, rule or regulation, (ii) any and all
rights Buyer may now or hereafter have against Seller under the Carpenter -Presley -Tanner
ffiliz ous kubstance Account Act '�California Health and SafetN Code Section 25300 et seq.4
as amended and any similar law, rule or regulation, and (iii) any and all claims, whether known
or unknown, now or hereafter existing, with respect to the Property under Section 107 of
CERCLA (42 U.S, C.A. § 9607).
BUYER HEREBY ACKNOWLEDGES THAT rF HAS READ A�11) IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("SECTION 1542"), WHICH IS SET FORTH BELOW
V141 I a I 1Q1 M11 5 1 " a 03 111 LIN
BY INITIALING BELOW, BUYER HEREBY WAIVES THE
PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH
THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING
WAIVERS AND RELEASES,
(Phiye�s Initials)
13. Continuation and Survival. All representations, warranties and covenants by the
respective parties contained herein or made in writing pursuant to this Agreement are intended to
and 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.
Buyer agrees to indemnify Seller and the Property against, and to hold and save
Seller and the Property harmless from, all claims, demands, suits, actions, damages, obligations,
liabilities, losses, costs and expenses, including but not limited to attorneys' fees and court costs,
10
65186.00000129329050.7
as a result of the Inspections; provided, however, that Buyer will not be obligated to indemnify
Seller with respect to its own negligence, The foregoing indemnity 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 P 0 t I
(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 within
ten (10) business days after Buyer first learns of such commencement. In the event of any such
termination, the Deposit, together with all interest, shall be returned to Buyer. 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 Section I.Kij, 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 See.tion 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. Scllcr'S1_k._j) qjon with Buyer. At no cost to Seller, Seller shall coo erate and
9 p
do all acts as may be reasonabhyZ,�,uired or x0tuested bo BW&L, at no additionai-V msmolQ"
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 Precedent.
18. Real I �Isujtc Brokerage Coininission.. Buyer and Seller each represent and warrant
to each other that they have not employed, dealt with or incurred any obligation to any broker,
iirrf- 5inj ilij
agent or finder in connection with the Pro i ert ; and that thev have not inc d 1
upirPMRIM9,14 114ilwymm oil,
11
65186.00000\29329050.7
• free and harmless from and •. all costs and liabilities, inclt4ing without limitation
reasonable •' fees and the costs and expenses of litigation, for causes • action •
proceedings in any way related to or resulting from a breach of the foregoing representation and
warranty or arising out of any action or proceedings which may be instituted by any broker,
agent or finder licensed or otherwise, claiming throu der or b -p reason of the conduct of the
indemnifying Party, respectively, in connection with this transaction.
19. Professional Fees. In the event legal action is commenced to enforce or interpret
any of the terms or provisions • this Agreement, the prevailing party in such action shall be
entitled to an award of reasonable attorney's fees and • incurred in connection with the
prosecution or defense of said action. In addition, the prevailing party shall be entitled to recover
any actual accounting, engineering or other professional fees reasonably incurred in said action
•::. r. •..
20. PUI ' IliCiLV and Cotifidentiality. Buyer and Seller each agree that prior to the
Closing, the ter s of ihe'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
got
FA I LTIM&M, I Ira W&T;11 H61 awl lot I I
00
Willi WOW lai 0 WIN
1—M911 -M •
M
Property; all studies, tests, contracts, plans and specifications (including architectural design
drawings and plans) relating to the Property; all rights under recorded covenants, conditions a
restriction and all proceeds of, additions and accretions to, substitutions and replacements fo
and changes in any of the foregoing
(b) lersomil MA))crty. All right, title and interest of Seller, if any, in and to
tangible personal property owned by Seller now existing and placed or installed on or about t
Property and used in connection with the ownership, operation, management, maintenan
i
and/or repair of the Property.
(c) Colitract lZigbts. To the extent assignable, all right, title and interest
Seller, if any, in and to any and all warranties, guarantees and indemnities (including, witho
-M _M"MERTioafurdDycrkmansbip materials and %erformance , whether or not written, related
any way to the Property, including, without limitation, construction warranties, guaranties a
indemnities from, by or against any contractors, subcontractors, laborers or supplier of lab
materials or other services relating to the Property pursuant to agreements respecting t
Property ("Contracts"). The foregoing shall not include any obligations of Seller under a
Contracts nor shall it constitute an assumption by Buyer of any obligations of Seller under a
Contract, including, without limitation, the obligation to pay any fees, costs or charges of a
kind there under.
(d) Officr Related Matters, All right, title and interest of Seller, if any, in a
to all patents, licenses, trademarks, service marks and names used in connection with t
operation of the Property, and all symbols, emblems with the operation of the Property, and
�gxiiaobw-dyblems and logos used in connection with the ownershi%.gr ti,
_q,Reration of the Propert
and irrespective of size, and all of Seller's right, title and interest in and to all goodw
associated therewith. i
(e) General. The foregoing assignment is without representation or warran
except as provided in this Agreement or any exhibit to this Agreement and all Property Rig
consisting of materials prepared by Seller or third parties at the request of Seller shall
delivered to Buyer lien free and freely usable by Buyer at its discretion without the payment
any fee, I
cost or charge. Seller shall execute all additional documentation necessary to evide
the foregoing assignments as reasonably required by Buyer and/or any Governmental Autho
or applicable third party.
22. Ri2h.t. of First Refusal.
(a) Rji Lit of First Refusal. Buyer, on behalf of itself and all its successors im
interest, including any assignee permitted under this Agreement (referred to herein collectivel,4*
,?s "Buyer"), hereby irrevocably grants to Seller a right of first refusal ("ROFR" or "Right M
Mrst Refusal") for the Property (or any portion thereof) from Buyer pursuant to the terms ad?
y
conditions set forth below in this Section 22. Until issuance of Certificate of Occupancy, Bu I
shall not enter into a sale of the Property or any portion thereof without first complying wi
Seller's ROFR. In the event Buyer desires to enter into any Sale, Buyer shall notify Seller
writing ("ROFR Notice"). Seller shall have a period of sixty (60) days from Seller's receipt
the r Notice within which to advise Buyer, in writing, of Seller's desire to exercise t
13
65186.00000\29329050.7
ROFR at the price specified in the ROFR Notice. If Seller elects not to exercise the ROFR or
fails to exercise the ROFR in writing on or before the sixtieth (60th) day after Buyer's delivery
of the ROFR Notice, then Seller shall be deemed to have waived the ROFR and Buyer shall be
entitled to proceed with a Sale at a price not less than ninety-five percent (95%) of the price
specified in the ROFR Notice. As used in this Section 22, the term "Sale" shall mean any sale,
transfer, or long term ground lease of legal title in all or any portion of the Property. The
provisions of this Section shall survive the Close of Escrow.
(b) Termination, The ROFR shall automatically terminate when Buyer has
secured Certificates of Occupancy on the Property.
(c) AS -IS Sale; Bqyer Released From lliabiliLy. If Seller exercises its ROF
B
uNer shall sell and convel
to Seller and Seller shall accept the Property "AS IS, WHERE IS, WITH ALL FAULTexce
to the extent expressly provided otherwise in this Agreement. Except as to the extent express
ex
c
e
'xpress
uyer h
arantea
-reof)
r , g
provided otherwise in this Agreement, Seller has not relied and will not rely on, and B ']
uyer h
not made and is not liable for or bound by, any express or implied warranties, guarantee
statements, representations or information pertaining to the Property (or portion(s) thereof)
relating thereto made or furnished by Buyer, or any property manager, real estate broker, i age
to whomever made or given e
11mmi 12- ;W -
or indirectly, orally or in writing. Seller represents that it is a knowledgeable, experienced a
sophisticated Seller of real estate and that, except as expressly set forth in this Agreement, it
i�f I eMff-', cp in purchasing the Pro9Wv anl
ents and informaticM
provided by Buyer. Seller will conduct such inspections and investigations of the Property
Seller deems necessary, including, but not limited to, the physical and environmental conditio
thereof, and shall solely rely upon same when acquiring the Property. If Seller fails to termina
this Agreement prior to the expiration of the Feasibility Period,Seller acknowledges that Buy
has afforded Seller a full opportunity to conduct such investigations of the Property as Sell
deemed necessary to satisfy itself as to the condition of the Property, and the existence or no
existence or curative action to be taken with respect to any hazardous materials on or discharg
r
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in
B
r
S
ory
n
u
e
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I
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from the Property, and will rely solely upon same. Upon the Seller Escrow Closing, Seller sh
expressly assume the risk that adverse matters, including, but not limited to, adverse physical
construction defects or adverse environmental, health or safety conditions, may not have be
revealed by Seller's inspections and investigations. Seller hereby represents and warrants•
B, ' er that Seller is reyresented bN e al counscl in connection with the transaction contern lat
by this Agreement. Seller waives any and all rights or remedies it may have or be entitled t
deriving from disparity in size or from any significant disparate bargaining position in relation
Buyer. On the Seller Escrow Closing, Seller hereby forever releases and discharges Buyer fro
all responsibility and liability relating to the physical, environmental or legal compliance stat,11!
of the Property, whether arising before or after the Seller Escrow Closing Date, regarding t I -
condition, valuation, salability or utility of the Property, or its suitability for any purpoi
whatsoever (including, but not limited to, with respect to the presence in the soil, air, structuJ
and surface and subsurface waters, of hazardous materials or other materials or substances th
have been or may in the future be determined to be toxic, hazardous, undesirable or subject
regulation and that may need to be specially treated, handled and/or removed from the Proper,
under current or future federal, state and local laws, regulations or guidelines, and any structurl.
14
65196.00000\29329050.7
and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and
hazardous materials on, under, adjacent to or otherwise affecting the Property or its use and
operation. Seller further hereby waives (and by closing this transaction will be deemed to have
waived) any and all objections, complaints and actions (including, but not limited to, federal,
state and • statutory and common law based • and any • right • action under
any federal, state or local laws, regulations or guidelines to which the Property is or may be
subject. Seller further hereby expressly assumes the risk and changes in applicable laws and
regulations relating to past, present and future environmental conditions on the Property, and the
risk that adverse physical characteristics and conditions, including, without limitation, the
presence • hazardous materials • • contaminants, may not have I)een revealed by its
investigation.
INITIALS: Seller ■
(d) No Deeined Release. Notwithstandi anything to the • in the
foregoing, in no even� �sali Seller be deemed to have re-icased or relieved Buyer from any
liability for claims arising from (1) Buyer's breach of any express covenants of Buyer set forth in
this Section 22, (2) the negligence or willful misconduct of Buyer during its ownership of the
Property, • (3) personal injuries occurring • the Property during Buyer's ownership • the
Property which are not caused by Seller, its contractors, agents or employees.
(e) Subordination. Seller's rights under this Section 22 shall automatically be
subject and subordinate to any deed of trust, mortgage or other instrument securing any
acquisition and/or development loan obtained by Buyer and the rights of any equity investor in
IWyer. Seller will, within ten (10) days after Buyer's request therefor, execute, acknowledge aid
deliver to Buyer or, at Buyer's request, Buyer's lender, a commercially reasonable subordination
agreement in a form acceptable to Buyer's lender to evidence the subordination of Seller's rights
under this Section 22.
(f) Survival. The provisions • this Section 22 shall survive the Close of
23. Developinont or Proj)erty. Buyer acknowledges that a material inducement for
tkree including bars
and/or entertainment uses (the "Reuse"), as allowed under the Downtown Specific Plan and/or
the Downey Municipal Code. Further, Seller would not be selling the Property but for Buyer's
stated intentions with respect to the Reuse of the Property, and the identity of Buyer and its
�)rinciples is of significant importance to Seller. Accordingly, Buyer agrees to the following
additional terms and conditions, which shall survive the Close • Escrow until the issuance • all
Certificates of Occupancy for the Reuse.
(a) Governn-mital Apj1ygy,1Js. Buyer will secure, at its own costs and expense,
the CUP, planning and building permits, business licenses and any other such permits, approvals
and entitlements (the "Governmental Approvals") as may be required under the Downtown
Specific Plan and/or the Downey Municipal Code for the development and operation of the
Reuse.
15
65186,00000\29329050.7
(b) Schedule of Performance. Buyer will diligently pursue the Governmental
Approvals and the Reuse in accordance with the Schedule of Performance attached hereto as
Exhibit F.
(c) Restrictions on Trans - fe - t -s. Buyer acknowledges that the qualifications and
identity of Buyer are of particular importance to Seller. Buyer further recognizes and
acknowledges that Seller has relied and is relying on the specific qualifications and identity of
Buyer in entering into this Agreement and, as a consequence, Transfers (as defined below) are
permitted only as expressly provided in this Agreement. Buyer shall promptly notify Seller in
writing of any and all changes whatsoever in the identity of the business entities or individuals
either comprising or in control of Buyer, as well as any and all changes in the interest or the
degree of control of Buyer by any such person, of which information Buyer or any of its
partners, members or officers are notified or may otherwise have knowledge or information.
W Transfer Defined. "Transfer" means any of the following: (1)
Any total or partial sale, assignment, conveyance, trust, power, or transfer in any other mode or
form, by Buyer of more than a 49% interest in Buyer's interest in this Agreement, the Property,
or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of
more than a 49% interest in Buyer's interest in this Agreement, the Property or the Reuse; or
(2) Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or
to a-cv ixterest in Buver or a series of such sales, assienments and the like that, in the
merger, consoliciation, sale, or tease oi an Or SUDS LUIMMY77=0 USSULS 01 D I . . . . . .
such sales, assignments and the like that, in the aggregate, result in a disposition of more than a
49% interest of all or substantially all of the assets of Buyer.
(ii) Permitted Transfer Defined. "Permitted Transfer" means and
refers to any of the foregoing Transfers by Buyer, where the person or entity to which such
Transfer -is made expressly assumes the obligations of Buyer under this Agreement in a written
instrument satisfactory to Seller and where Seller, in its sole discretion, approves the Transfer.
Notwithstanding the foregoing, Buyer shall have the right, without Seller's consent, to transfer
Buyer's rights and interests under this Agreement to a joint venture, partnership or other entity,
so long as Buyer (oi Kirk (, , ju zian and Addan, Anios,,I) retains 100% ownership interest in such
a
joint venture, partnership or other entity, and such transfer shall constitute a Permitted Transfer
hereunder.
(d) Litiver's Rel)rcsentation on Transfers. Except as expressly permitted in
create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either
voluntarily, involuntarily or by operation of law, until after the issuance of a Certificate of
Occupancy for the Reuse subject to the Transfer; provided, however, that Seller may approve in
its reasonable discretion, Transfers other than Permitted Transfers prior to the issuance of a
Certificate of Occupancy. In deciding whether to approve or disapprove any proposed Transfer,
Seller may consider the proposed transferee's financial strength and the experience of the
proposed transferee and its senior management in undertaking and successfully completing
projects of a similar type and size as the Reuse. Any Transfer made in contravention of this
Section 23 shall be voidable at the election of Seller and this Agreement may be terminated by
M
Seller or Seller may exercise any other remedy available to Seller under the terms of this
Agreement, provided, however, that (i) Seller shall first notify Buyer in writing of its intention to
terminate this Agreement or to exercise any other remedy, and (ii) Buyer shall have twenty (20)
calendar days following its receipt of such written notice to commence and, thereafter, diligently
and continuously proceed to cure the default of Buyer and submit evidence of the initiation and
satisfactory completion of such cure to Seller, in a form and substance reasonably satisfactory to
Seller.
(e) Notice to Seller. Buyer shall provide Seller no less than sixty (60) days'
itf which 31�, - �'- bminter into crior to
the issuance of a Certificate of Occupancy for the Reuse subject to the Transfer, other than a
Permitted Transfer for which no notice shall be required. Buyer shall have the burden of
demonstrating to Seller's reasonable satisfaction that the proposed Permitted Transfer meets the
conditions and requirements of this Agreement with respect to Permitted Transfers.
(f) R61111)LU-SC111011 10 SCIICT. In connection with Seller's review of any
Yvt-p" for appr -BmXer agrees to reimburse
Seller for those third party costs and expenses incurred by Seller in connection with its review of
Buyer's request for approval, including, without implied limitation, the reasonable fees and costs
of those outside consultants and legal counsel retained by Seller to assist it in its review of the
Buyer's request, including the City Attorney.
(g) Termination of Transfer Restrictions. Anything in this Agreement to the
contrary notwithstanding, the restrictions and prohibitions on Transfers contained in this Section
23 shall terminate upon issuance of a Certificate of Occupancy for the Reuse.
24. L,61ht to 1�cpurchase. Seller shall have the right, at its option, to repurchase,
reenter and take possession of the Property with all improvements thereon, if at any time after
conveyance • title to Buyer, the Buyer shall fail to comply with Buyer's obligations set forth in
Section 23 of this Agreement (the "Repurchase Option"), subject to the notice and cure
provisions as set forth herein. Prior to exercising this Repurchase Option, Seller shall provide
written notice to Buyer • Buyer's failure to comply with its obligations as set forth in this
Agreement, and directing Seller to cure such default under this Agreement. If Buyer fails to cure
such default within ninety (90) days of receipt of such written notice, Seller shall provide a
second written notice to Buyer, declaring that if Buyer fails to cure such default, the Seller shall
exercise its Repurchase Option as granted herein. In the event that Buyer has failed to cure the
default within ninety (90) days of receipt of this second notice, or if the default cannot
reasonably be cured within one hundred eight (180) days, Buyer has failed to commence to cure
s , r4Cfjdi7-arrd t1h
is completed, to the reasonable satisfaction of Seller, then Seller may exercise the Repurchase
Option as granted herein.
(a) ' Nt - )t - i ' cc froni Seller. If the parties axe unable to reach resolution, Seller
may provide Buyer with a notice of exercise of its option to repurchase and, within ten (10) days
after conclusion of the appraisal process described below, shall pay to Buyer the Fair Market
XT
JWe,viined below. and Buyer shall thereu,,00n execute and deliver to Seller a grant deed
transferring to Seller all •' Buyer's interest in the Property. In the event Seller exercises its
17
65186,00000\29329050.7
remedy on account of any default of Buyer which gives rise to Seller's repurchase option
hereunder, except that the foregoing limitation on remedies shall not affect either party's
indemnity obligations under this Agreement. Seller may withdraw its notice to exercise option at
any time prior to the transfer of the Property to Seller.
(b) Appi-ttisals. Within thirty (30) days after delivery of Seller's notice
repurchase, Seller and Buyer shall each appoint • independent commercial real est
appraiser, or designate an appraiser and appraisal completed in the past year, to appraise t
then -existing value of the Property. If either Seller or Buyer fails to
,rf• • designate i
appraiser within the prescribed time period, the single appraiser appointed shall determine t
Fair Market Value of the Property. If both parties fail to appoint or designate appraisers with
the prescribed time periods, then the first appraiser thereafter selected by a party shall determi
the Fair Market Value of the Property. Each party shall bear the cost of its own appraiser and It
parties shall share equally the cost of the single appraiser, if applicable. The appraisers shall
real estate appraisers licensed in the State ♦ California and have at least ten (10) consecuti
years of experience in the appraisal of real property in Los Angeles County. If each par
appoints or designates an appraiser, such appraisers shall, within ninety (90) days after t
appointment of the last appraiser, complete or provide, if already completed, their determinatio
of Fair Market Value and furnish the same to Seller and Buyer. If the low valuation varies fro
the higher valuation by 5% of the low valuation or less, the Fair Market Value shall be t
average of the two valuations. If the low valuation varies from the high valuation by more th
5%, the two appraisers shall, within thirty (30) days after submission • the last apprais
appoint a third appraiser who shall meet the qualifications set forth in this paragraph. If the t
Seller or Buyer may request such appointment by the presiding judge of the Superior Court
Los Angeles County. The third appraiser, however selected, shall be a person who has n
previously acted in any capacity for or against either party. Such third appraiser shall, withi
ninety (90) days after appointment, make a determination of Fair Market Value and said thi
appraiser shall select the opinion of Fair Market Value as determined by the one apprais
determination, completed by the two .•r which most • matches the third appraiser
opinion of Fair Market Value. The Fair Market Value of the Property shall be the Fair Mark
Value selected by said third appraiser. All fees and costs of the third appraiser in connecti
with the determination of Fair Market Value shall be paid one-half by Seller and one-half
Buyer.
(c) Subordination. Seller's rights under this Section 24 shall automatically be
subject and subordinate to any deed of trust, mortgage or other instrument securing any
acquisition and/or development loan for the Property obtained by Buyer and the rights of any
cquity investor in Buyer. Seller will, within ten (10) days after Buyer's request therefor, execute,
acknowledge and deliver to Buyer or, at Buyer's request, Buyer's lender, a commercially
reasonable subordination agreement in a form acceptable to Buyer's lender to evidence the
subordination • Seller's rights under this Section 24..
(d) Survival. Seller's rights
• this Section 24 shall survive the ClosinIN.
and shall terminate upon the issuance of a Certificate of Occupancy for the Reuse.
18
65186.00000129329050.7
25. Art in Public Places Requirement. As part of the Reuse, Buyer will restore and
reutilize the faqade of the marquee presently on the Property, as well as plan and execute an
adaptively reuse of the entire building, all in compliance with all Governmental Approvals.
Seller acknowledges and agrees that such restoration and adaptive reuse will satisfy the
requirements of Article VIII, Chapter 10 of the Downey Municipal Code.
00 1115 0 =_ I
(a) Noticos. 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 or
electronic 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
may from time to
time specify in writing to the other in accordance herewith):
If to Seller: Downey Community Development Commission -Housing
Successor Agency
Attn: Executive Director
11111 Brookshire Avenue
Downey, CA 90241
Phone: (562) 904-7168
Fax: (562) 622-4816
E -Mail: glivas@downeyca.org
With a copy to: Best Best & Krieger LLP
Attn: Ruben Duran, Esq.
300 S. Grand Ave., 25th Floor
Los Angeles, CA 90071
Phone: (213) 787-2569
Fax: (213) 617-7480
E -Mail: Ruben.Duran@bbklaw.com
If to Buyer: Downey Restaurant Group, In
Attn: Adrian Amosa
10840 Paramount Blvd.
Downey, CA 90241
Phone: (562) 704-0744
Fax:
E -Mail: adrian@gauchogrillusa.com
19
65186.00000129329050.7
With a copy to: Palmieri, Tyler, Wiener, Wilhelm & Waldron LLP
Attn: Stephen A. Scheck, Esq.
1900 Main Street, Suite 700
Irvine, CA 92614
Phone: (949) 851-7221
Fax: (949) 825-5417
E -Mail: sscheck@ptwww,com
To Escrow Holder: Security Land Escrow Company
10805 Paramount Blvd., #A
Downey, CA 90241
(b) Anicii(finetits. This Agreement may be amended or modified only by a
written instrument
• by Seller and ■
(c) Goven)iiig Law. This Agreement shall be governed by and construed in
7ccordance with the laws • the State of California.
(d) Construction, Headings at the beginning • 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
• subparagraphs are to this Agreement. All exhibits referred to in this Agreement are attached
• incorporated by this reference.
(e)
• Joint Venture. This Agreement shall not create a partnership • •::.
venture relationship between Buyer and Seller.
(f) Mor�,,ei, of' Ilrior Agrj���. This Agreement and the exhibits attached
understandings between the parties relating to the subject matter hereof, • without
♦ any letters of intent previously executed • submitted by either • both • the parties
• which shall be • no further force • effect upon execution • this Agreement.
(g) Tisi)c of the Esgence. Time is
• the essence of this Agreement. As used
in this
• a "business • shall mean a day which is not a Saturday, •. •
recognized federal • state holiday. If the last date for performance by either •. 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.
(h) Scverabilitv. If any provision • this Agreement, or the application
• to any person, place, • circumstance, shall be held • a court of competent jurisdiction
to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as
applied to • persons, places and circumstances shall remain in full force and effect.
G) Further Assurances. Each
• the parties shall execute and deliver any and
all additional papers, documents and other assurances and shall do any and all acts and things
20
65186.00000\29329050.7
reasonably necessary in connection with the performance of their obligations hereunder and
carry out the intent of the parties.
0) COLInterparts. This Agreement may be executed in any number
I
counter -parts, each of which shall be deemed to be an original, but any number of which, tak
together, shall be deemed to constitute one and the same instrument. If any party uses facsimil
transmitted signed documents, or documents that have been signed, electronically scanned a
?n Escr,,ow Holder and the other ie�artp are authorized to
such documents as if they bore original signatures; provided, however, that facsimile transmitte
signed documents will not be accepted for recordation by the Los Angeles County Recorder.
(k) Exhibits. All exhibits attached hereto and referred to herein at
incorporated herein as though set forth at length,
(1) �I-tpions. The captions appearing at the commencement of the sectior
and paragraphs hereof are descriptive only and for convenience in reference. Should there t
any conflict between any such caption and the section at the head of which it appears, the sectic
and paragraph and not such caption shall control and govern in the construction of th
Agreement.
(m) No Obli�,,ation To Third Pa.rties. Execution and delivery of th.
Agreement shall not be deemed to confer any rights upon, directly, indirectly or by way (
subrogation, nor obligate either of the parties hereto to, any person or entity other than eac
other.
(n) Waiver. The waiver by any party to this Agreement of the breach of an
provision of this Agreement shall not be deemed a continuing waiver or a waiver of ain
subsequent breach, whether of the same or another provision of this Agreement.
(o) Intes,I)retation. This Agreement has been negotiated at arm's length ar
between persons (or their representatives) sophisticated and knowledgeable in the matters dea
with in this Agreement. Accordingly, any rule of law (including California Civil Code § 165
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 ar
this Agreement.
M
65186.00000\29329050.7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
writte,rbefow.
THE DOWNEY COMMUNITY
DEVELOPMENT COMMISSION -HOUSING
SUCCESSOR AGENCY, a public body,
corporate and politic
By-
i�36L�n A. Lavas, Executive Director
By:
Ad ii M . Jimenez, CfIC, CDC Secretary
BaNtIGAM �11�6 �
Best Best & Krieger, LLP
Special counsel to Downey Community
Development Commission -Housing Successor
Agency
65186.00000\29329050.7
NN
DOWNEY RESTAURANT GROUP, INC., a
California corporation
By:.
Adrian/i it, Pi-esikent
s.
That portion of Lots 1 and 2, of the subdivision of block 15 of the tract of Downey Land
Association, in the City of Downey, County of Los Angeles, State of California, as per map
recorded in book 60"a e.- 40 of miscellaneous records in the office of the countrA Recorder of
said county, described as follows:
Commencing at the northeasterly corner of said lot 1; thence south 32'5340" west along the
easterly line of said lots 1 and 2, a distance of 147 feet to a point, distant north 32'53'40" east 3
feet from the southeasterly corner of said lot 2; thence north 57'06'30" west parallel to the
southerly line of said lot 2, and distant 3 feet therefrom a distance of 145 feet, more or less, to a
point on the westerly line of said lot 2; thence north 325340" east along the last mentioned line
a distance of 20 feet; thence south 57'06'30" east parallel to the southerly line of said lot 2, a
distance of 85 feet, more or less, to a line parallel with and distant 60 feet northwesterly,
measured at right angles from the southeast line of said lot 2; thence north 32'53'40" east along
said parallel line, a distance of 127 feet to a point on the northerly line of said lot I; thence south
57'06'30" east along said last mentioned line, a distance of 60 feet to the point of beginning.
Except therefrom that portion included within the lines of the land described in the deed to the
city of Downey, recorded September 24, 1969 as instrument no. 74, in the office of the county
recorder of said county.
W
1 *.14 IR I I
026THMARISM1101
Will"0110- IN NMI Nolawm-
livir.11 In WIN11110y.1111111 I zluv
02���
A.P.N.: .6 -)1(7-
� d5' ( � - ( -- -
The Undersigned Grantor(s) Declare(s):
DOCUMENTARY TRANSFER TAX $ CITY TRANSFER TAX $
1A e ficr 12.ec1irder's Use Only)
computed on the consideration or full value of property conveyed, OR
computed an the consideration or full value less value of Wns and/or encumbrances remaining at time of sale,
unincorporated area; City of
GRANT DEED FOR VALUE RECEIVED,
("Grantorgrants to
6r-,,,,,; '1-4'Grantee all that certain real property situated in the
County ol'Los Angeles, State ol'California, described on Schedule I attached hereto and by this
reference incorporated herein (the "Property"), subject to the Right of Reverter set forth in
Section 24 of that certain Purchase and Sale Aoreeniew and Joint Escrow Instructions entereLi,
into between Grantor and Grantee on which is
incorporated herein by reference.
IN W1TN[-.SS WHEREOF, Grantor has executed this Grant Deed as of
I
/Z
By:
Name:
Its: —9X
9z V91
RN
A notary public or other officer completing this certificate vorifres only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of iha( document.
COUNTY OF q t"""
On K OVI YO W 1, M �, before nie, a Notary
r-'ublic, personally appeared L-) I 0A 5
who proved to me on the basis of satisfactory evidence to be the person(,p,) whose name('0 is/ar4--
subscribed to the within instrument and acknowledged to me that he/Aw4biq executed the same
in his/hefAheir authorized capacity(jao-, and that by his/ho4d4Wr signature(.0 on the instrument
the person(,,,Y, or the entity upon behalf of which the personVacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
VMMMMI��
Signature.
IM
..............
............
EXHIBIT C
ACCESS AGREEMENT
Mf -
between the COMMUNITY DEVELOPMENT COMMISSION OFTHE Cf 1"I"W"084irklE,
a public body, corporate and politic ("CDC"), and DOWNEY RESTAURANT GROUP, INC.,
California corporation ("BUYER"). CDC and BUYER are sometimes referred to hereinaft(
individually as a "Party" and collectively as the "PARTIES".
WHEREAS, CDC owns certain real property located at 11022 Downey Avenue, in th
City of Downey, County of Los Angeles, State of California (the "Property"), legally describe
as set forth in Exhibit "A", which is attached hereto and incorporated herein by this reference;
WHEREAS, the Property is improved with one (1) building (the "Building") totalin
approximately 10,410 square feet;
WHEREAS, BUYER wishes to enter the Property to perform certain due diligenc
activities prior to submittal of a development proposal for the Building on the Property; and
WHEREAS, CDC desires to grant access to the Property to BUYER and to perm
BUYER to perform certain due diligence activities, all in accordance with the terms an
conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which aj
incorporated herein by this reference, and for other valuable consideration, the sufficiency
which is hereby acknowledged, the PARTIES hereto do agree as follows:
I , Access Granted. CDC grants permission to BUYER and its representative
including BUYER's employees, agents, consultants, contractors and subcontractors, to enter tt
Property at all reasonable times during regular business hours (e.g., Monday -Friday, 8:00 a.m, 1
5:00 p.m.) for the sole purposes of inspecting the Property and Building, including the structur
�&�. �V.RiW&.-_gq�wLperforming testin . including geotechnical, soils and environmentz?l
tests, on the Property (collectively, the "Permitted Work"). BUYER shall perform the Permittl
Work at its sole cost and expense and shall not be entitled to reimbursement or any form
payment by CDC for the cost of the Permitted Work regardless of whether or not the Property
subsequently transferred to BUYER pursuant to a conveyance agreement between BUYER a
CDC. This grant of access does not extend to any other real property owned by CDC or the Cil
of Downey.
2. Term. This Agreement shall take effect on, "I'le, k19 a-4016 and shall termna
on December 31, 2017 unless otherwise terminated or extended or modified in accordance wil
W
Indemn.ification and Hold Harmless.
BUYER shall defend (with counsel selected by CDC), protect, defend, indemnify
and hold the CDC and City and CDC/City Representatives, and each of them, jointly ante
severally, against and from any and all claims, demands, causes of action, damages, costs,
expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever related to
M
MLUYER's exercise of its rights hereunder, including attorneys' fees and expert witness fees, bfrt
excluding any claims or liability arising solely out of CDC's own negligent acts, errors
omissions or willful misconduct, but including, without limitation, injury to or death of a
�reatened. brought or institut]
to or destruction of ang, �s �ns
(collectively, "Claims"), arising out of or in any manner directly or indirectly connected with ff
entry upon the Property by any of the BUYER and BUYER Representatives and the performanc
of the Permitted Work, including without limitation:
(a) any damage to the Property and any liability to any third party incurred b
reason of any acts or omission of, or any commission of any negligent or tortious acts, by any
the BUYER and BUYER Representatives;
(b) any mechanics' or materialmen's liens, claims, demands, actions or sui
arising (directly or indirectly) from (i) any work performed or materials supplied to or f(
BUYER, or (ii) any activities of any of BUYER and BUYER Representatives on or relating I
the Property (including, without limitation, any claims by any of the BUYER and BUYE
(c) any costs of removing any of the BUYER and BUYER Representativt
from the Property after the expiration of the term hereof unless BUYER is otherwise entitled I
possession of the Property at such time; and
(d) any and all legal expenses and costs incurred by any of the CDC and Cil
and CDC/City Representatives in enforcing any of the terms of this Agreement, includin�
without limitation, the indemnity herein provided.
7.
(a) Time for Compliance. None of the BUYER and BUYER Representativ
shall commence the Permitted Work under this Agreement until BUYER has provided eviden
satisfactory to CDC that each of BUYER and the entity to be performing the Permitted Work
different from BUYER) has secured all insurance required under this section,
(b) Miginium Requirements. BUYER shall, at its expense, procure
maintain for the duration of this Agreement insurance against claims for injuries to persons
damages to property which may arise from or in connection with the performance of t
Permitted Work by any of the BUYER and BUYER Representatives Such insurance shall me-
at least the following minimum levels of coverage:
(i) MilliII111111 SC-ope 01'1111AIJIMCC. Coverage shall be at least as bro
as the latest version of the following: (1) General Liability: Insurance Services Offi
Commercial General Liability coverage (occurrence form CG 0001); and (2) Worker
Compensation and -Employer's Liability: Workers' Compensation insurance as required by t
State of California and Employer's Liability Insurance.
(ii) Minimum Umit,s of Insurance. BUYER shall maintain limits
less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury a
property damage. If Commercial General Liability Insurance or other form with gener
MR
M
BUYER shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expenses.
(g) Accje)tahihtv of histirers. Insurance is to be placed with insurers with ;?
current A.M. Best's rating no less than A, licensed to do business in California, and satisfactory
to CDC.
(h) Verification of' Coverage. BUYER shall furnish CDC with original
certificates of insurance and endorsements effecting coverage required by this Agreement on
forms satisfactory to CDC. The certificates and endorsements for each insurance policy shall be
signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by CDC if requested. All certificates and endorsements must be received an4-
approved by CDC before work commences. CDC reserves the right to require complete,
certified copies of all required insurance policies, at any time.
8. All notices permitted or required under this Agreement shall be given to the
respective parties at the following address, or at such other address as the respective parties may
provide in writing for this purpose:
1 1111111"
of the City of Downey
I 1111 Brookshire Avenue
Downey, CA 90241
Phone: (562) 904-7168
Fax: (56 2) 622-4816
Attn: Executive Director
10840 Paramount Blvd.
Downey, CA 90241
Attn: Adrian Amosa
Such notice shall be deemed made when personally delivered, when delivered by a
reputable overnight courier service that provides a receipt with the time and date of delivery, or
when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice
on the date actual notice occurred, regardless of the method of service.
9. Reprcsentatives. CDC hereby appoints the Director of Community Services d1l
his/her designee, and BUYER hereby appoints Mr. Adrian Amosa or his/her designee, each
whom shall be authorized agents with whom the other Party may confer regarding the terms
this Agreement. I
AN
10. Termination. This Agreement may be terminated by either Party for breach of
this Agreement during the term hereof by giving the other Party not less than 30 days prior
written
•
11. AppjLwLtble Law and Venue. This Agreement shall be governed by the laws of the
State of California and the venue of any action brought hereunder shall be exclusively in the
• •` Los Angeles.
12. Entiw Mreenient. This Agreement is the entire agreement between the Parties
hereto with respect to the subject matter hereof and supersedes all prior agreements between the
Parties with respect to the matter contained in this Agreement. Any waiver, modification,
consent or acquiescence with respect to any provision of this Agreement shall be set forth in
writing and duly executed by both Parties. No waiver by any Party or any breach hereunder shall
be deemed a waiver of any other subsequent breach.
13. Successors and Assij-ms. This Agreement shall • binding upon the assignees,
transferees and successors in interest of each of the Parties hereto.
14. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
15. Assiennient or Transfci:. Neither Party shall assign, hypothecate, • transfer,
either directly or by operation of law, this Agreement or any interest herein without the prior
written
• • the • Party. Any attempt to •• so shall be null and void, and any
assignees, hypothecates or transferees shall acquire no right or interest by reason of such
attempted assignment, hypothecation • transfer. Notwithstanding the foregoing, Buyer shall
have the right,
• Seller's consent, to transfer Buyer's rights and interests under this
16. Invaliditv: Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall
• in full force and effect.
17. ' ALJ11101-it�' to linlej- ALM,ewpont. BUYER has all requisite r• and authority to
conduct its business and to execute, deliver, and perform this Agreement. Each Party warrants
that the individuals who have signed this Agreement have the legal power, right, and authority to
make this Agreement and bind each respective Party.
IN WITNESS WHEREOF, this Agreement has been duly authorized and executed by the
Parties hereto on the day and year first herein above written.
W.
090m
CtJ-C Secretary
Best Best & Krieger, LLP
Housing Successor Agency
11 C"
COMMUNITY DEVELOPMENT COMMISSION
OFT CITY OF DOWNEY, a public body,
corporate and otitic
By:
Gilbert A. Divas, Executive Director
"BUYER"
DOWNEY RESTAURANT GROUP, INC., a
California corporation
Its: Pmsidem
1
EXHIBIT A
"', -
THE LAND REFERRED TO HEREIN BELOW IS SITUATED 12'� THE COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
That portion of Lots 1 and 2, of the subdivision of block 15 of the tract of Downey Land
Association, in the City of Downey, County of Los Angeles, State of California, as per map
recorded in book 60, page(s) 40 of miscellaneous records, in the office of the county Recorder of
said county, described as follows:
Commencing at the northeasterly comer of said lot 1; thence south 32'53'40" west along the
easterly line of said lots 1 and 2, a distance of 147 feet to a point, distant north 32'53'40" east 3
feet from the southeasterly corner of said lot 2; thence north 57'06'30" west parallel to the
southerly line of said lot 2, and distant 3 feet therefrom a distance of 145 feet, more or less, to a
ryoint on the westerly line of said lot 2; thence north 32'53'40" east along the last mentioned line
a distance of 20 feet; thence south 57'06'30" east parallel to the southerly line of said lot 2, a
distance of 85 feet, more or less, to a line parallel with and distant 60 feet northwesterly,
measured at right angles from the southeast line of said lot 2; thence north 32'53'40" east along
said parallel line, a distance of 127 feet to a point on the northerly line of said lotl; thence south
57'06'30" east along said last mentioned line, a distance of 60 feet to the point of beginning.
Except therefrom that portion included within the lines of the land described in the deed to the
city of Downey, recorded September 24, 1969 as instrument no. 74, in the office of the county
recorder of said county.
M
T1ZANSF1-'IZ01VS CERTIFICATION OF NON-FOW-I'IGN STATIJS
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 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
1. The YransJewi- 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).
A -
The Transferor's U.S. employer or tax identification number isY,5 (W936.
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 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.
1. L�, 20_�6 TRANSFEROR:
CDC -
By:
V
Name., IV
Its: aa2wrl V&� maTIz-
w
rlorcie• ' i ien
kecorded, • - to:
ANs; _"'
Exempt • Recording Fees Pursuant
To Government 1••- Section 27383
lgjlplll►rj
c-
►rj:.�•' y �DW.Tw I DIDIV i DIa l
THIS MEMORANDUM PURCHASE AND SALE AGREE
("Memorandum") is made and entered into as of November J__ en tj
DOWNEY COMMUNITY DEVELOPMENT • t HOUSING
AGENCY,public bi i i 1 • . - and r • - and
CaliforniaGROUP, a • • • • `ruyer"). This is a Memorandumof
leasedale A reement (the "ALyreement"). entered into between Seller and Buver. dated Novem1b
1. Seller has to Buyer,•:. Buyer has hired from Seller,
propertyowned by i in the City of Downey,• of • Angeles,
California, more particularly described in Exhibit A, attached hereto and incorporated
reference herein (the "Property"). Property is 11 f at 11022 DowneyAvenue
of Downey, •
2. Buyer shall develop of the Property adaptive reuse of • •
three restaurants and attendant uses, including bars and/or entertainment uses as allowed und
the Downtown Specific Plan and/or the Downey Municipal Code and in accordance with t
. .,
3. This Memorandum is made upon all the terms and conditions contained in the
Agreement between Seller and Buyer, and all of said terms and conditions are incorporated by
reference herein. This is a Memorandum, prepared for recording purposes only, and nothing
herein shall be deemed or construed to modify or amend any of the terms of the Agreement.
IN WITNESS WHEREOF, as of the day and year first hereinabove written, the
cespective parties hereto have executed this Memorandum of Purchase and Sale Agreement, by
their respective officers or agents thereunto duly authorized.
11OLUMM
x L
('Filberl A. Livas
Executive Director
R V -gaff., T*W*"#M VIA
By:
Name: Ruben Duran, Esq.
Title: Partner, Best Best & Krieger, LLP
�d IS
Downey Restaurant Group, Inc., a California
corporation
By:
(Name)
(Title)
M
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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. I
State of California
County of LOS AN&gi_05
�Dvevnbf,r5 ul paca /+hfl Cj(,W e-a-ry IJD PAA &C,
On before me,
Date Here Insert Name and Title of the Officer
personally appeared Aotrim Amosa
Name N of SignerX
RIM414-IMM WFINIM19MIN
or the entity upon behalf of which the personjjA acted, executed the instrument.
is true an•correct.
_4 REBECCA ANN GUERRERO WITNESS my ha nd official seal.
Cornrinission # 2112736
z
Notary Public - California z
Los Angeles County Signature
CpmmEx �.res Jun 19, 201.9 P Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
J-1111MMIT =7
Title or Txtne of Document"
I IT#= •:•.' a a IM 0
Number of Pages: Signer(s) Other Than Named Above-,
Capacity(les) Claimed by Signer(s)
Signer's Name:
El Corporate Officer — Title(s):
D Partner — El Limited El General
11 Individual F1 Attorney in Fact
1:1 Trustee L.1 Guardian o"
11 Other:
Signer Is Representhli.q.
corporate Officer — Title(s):
E] Partner — [_1 Limited El General
E-1 Individual 1-1 Attorney in Fact
El Trustee [I Guardian or Conservator
El Other:
Signer Is Representing:
@2014 National Notary Association - www.NationaiNotary.org - 1 -800 -US NOTARY (11 -800-876-6827) Item #5907
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 Los Angeles
On November 14, 2016 before me, Adria M. Jimenez, Notary Public
(insert name and title of the officer)
personally appeared Gilbert A. Livas
who proved to me on the basis of satisfactory evidence to be the person($�whose name(�&) isAwe
WIN
1W w
1#1Q& -i01 11umcol fizz;j all IVA114161 am §T;Q ArtikKOISTIVANI [01 BRINIZA om IN u;je NJ 11,71 II&JIM 1—IM
ITTrMi-91"PinVA-M-97 F -PL -15A -JFK -T RU-6T9UTiMMVMMnRa ne TOregoing
paragraph is true and correct.
I o� ; 214'18419
aft" �'t" Como=
WITNESS my hand and official seal, f*'e �F,'�'
Notary Public - C
allfornia
L!E4Lola \NW AngelMes County
Cj)m
M M
M ra, Ex i &Mar 5,
Signature (Seal)
EXHIBIT A
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF LO
ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
That portion of Lots 1 and 2, of the subdivision of block 15 of the tract of Downey Lan
Association, in the City of Downey, County of Los Angeles, State of California, as per ma
recorded in book 60, page(s) 40 of miscellaneous records, in the office of the county Recorder•
said county, described as follows:
Commencing at the northeasterly comer of said lot 1; thence south 32053'40" west along tl
easterly line of said lots 1 and 2, a distance of 147 feet to a point, distant north 32'53'40" east
feet from the southeasterly corner of said lot 2; thence north 57'06'30" west parallel to tl
southerly line of said lot 2, and distant 3 feet therefrom a distance of 145 feet, more or less, to
point on the westerly line of said lot 2; thence north 32'53'40" east along the last mentioned lirl
a distance of 20 feet; thence south 57'06'30" east parallel to the southerly line of said lot 2,
distance of 85 feet, more or less, to a line parallel with and distant 60 feet northwesterl,
measured at right angles from the southeast line of said lot 2; thence north 32'53'40" east alon
said parallel line, a distance of 127 feet to a point on the northerly line of said lot I; thence sout
57'06'30" east along said last mentioned line, a distance of 60 feet to the point of beginning.
Except therefrom that portion included within the lines of the land described in the deed to tf,
city of Downey, recorded September 24, 1969 as instrument no. 74, in the office of the count
recorder of said county.
A 0—exal a M M 4114 12 1 COW
M1
F0.4mys
This Schedule of Performance requires the submission of plans or other documents at specific
times, Some of the submissions are not described in the text of the Agreement. Such plans or
•? r• as submitted, must be complete and adequate for review by the City or other
applicable governmental entity when submitted.
MM
1. Forensic Structural hispectiop. Buyer Within sixty (60) days after the full execution ani
• complete the Forensic Structural delivery • this Agreement.
Inspection.
2. Preliminary [�Ians LIL_� Lit) I I C —MVill
4)plication. Buyer shall submit
preliminary Plans and Specifications and
an application for the CUP/Site •
• and any • necessary
Entitlement
• the City.
3. Firial Plans and Specificalions. The
Buyer shall submit site improvement
plans and construction drawings for Ci
.r• I
Within three (3) months after Buyer's approval of
the Forensic Structural Inspection.
WA_six (6) months —after the—City's approval of -I
the Entitlements.
conlillelicement of Colistruction. Buyer Within
• (45) days after the construction
shall commence construction. drawings are approved by the City.
5. Qqukhl I wation. l'or Certificate of No later than twenty-four (24) months after
Completion. The Project shall • commencement • construction.
for a Certificate • Completion.
M