HomeMy WebLinkAboutResolution No. 22-8098 - Approving Purchase Acq of Temp Construction Easement for Property Located at 8806 Imperial HwyWHEREAS, the City of Downey ("City") has negotiated a purchase agreement with Irent
Cantoran, Trustee of the Irene Cantoran Revocable Living Trust dated May 5, 2020 ("Seller"),
pursuant to which the City would acquire a Temporary Construction Easement ("Easement")
located at 8806 Imperial Highway, Downey, CA for a purchase and acquisition price of Three
Thousand Five Hundred Fifty Dollars ($3,550.00) ("Agreement"); and
WHEREAS, the City Council has determined that approval of the Agreement and the sale
transaction contemplated thereby, are in the best interest of the City and the public health, safety
f welfare.
Agreement.SECTION 1. The City Council of the City of Downey hereby (i) approves the Agreement,
a copy of which attached hereto as Exhibit "All, and is on file with the City Clerk, (ii) if required,
authorizes and directs the City Manager to make final changes to the Agreement consistent with
the City Council's direction, and (iii) authorizes the Mayor to execute the final Agreement and any
other documents and agreements necessary to complete the sale transaction contemplated by
the
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Uty ot Downey at a Regular meeting held on the 231a day of August, 2022, by the following vote,
to wit:
ATES:
Council Members:
Frometa, La Plante, Trujillo, Alvarez, Mayor Pacheco
NOES:
• Members:
None.
ABSENT:
Council Members:
None.
ABSTAIN,
Council Members:
None.
I�:Ii=��1
F-ITC] 114A
THIS AGREEMENT is entered into this 21 day of A<4 2022, by and among
the CITY OF DOWNEY, A MUNICIPAL CORPORATION* CHARTER CITY (hereinafter
"City"), and Irene Cantoran, Trustee of The Irene Cantoran Revocable Living Trust dated May
5, 2020, (hereinafter "Seller").
1 . Seller owns real property at 8806 Imperial Highway, Downey, California, further
legally described in ATTACHMENT "A" is incorporated herein by this reference and hereafter
`• to as the "Property".
2. The City desires to acquire a temporary construction easement from the Seller
for the Lakewood Blvd. & Imperial Hwy. Intersection Improvement Project.
AGREEMENT
On the terms and conditions set forth herein, Seller agrees to grant the City a temporary
construction easement and City agrees to compensate the Seller for the temporary
construction easement. The total price • the compensation of the temporary construction
easement, payable in cash through escrow, shall be at a cost of THREE THOUSAND FIVE
HUNDRED FIFTY DOLLARS ($3,550.00). In exchange for receipt of this amount, Seller
releases City of any and all claims by Seller under the United States Constitution Amendments
5 and 14, and for any and all claims under state law, including but not limited to claims for the
value of the real estate and improvements thereon, severance damages, relocation benefits
and loss of goodwill. Notwithstanding anything to the contrary contained in this Section 1, the
City shall remain liable for any injury to persons or damage to property relating to or arising
from the acts of omissions of the City or its agents, employees, contractors and
representatives on the Property.
This sale shall •' consummated through approval by City's designee(s) and/or City
• In the event that Escrow is deemed necessary for the purpose of title and/or
easement transfer, the City agrees to open escrow with a Title Company (Commonwealth
Land Title Company). This Agreement, along with the Construction Easement and
ATTACHMENT "C" attached hereto, constitutes the joint escrow • • City and Seller
to the Escrow Holder, which may be supplemented by escrow holders form agreement.
Subject to the conditions described in Section 8, City shall deposit into escrow the sum set
forth in Section 1 above, payable to Seller. The closing date for the escrow shall • no later
than sixty (60) days after opening •' •' unless such date is extended • written
agreement of the parties. "Close of Escrow" shall be the date when the Construction
Easement to the City is recorded. City shall pay any and all escrow and closing • City
shall • pay the costs • the ALTA title insurance referenced in Section 8.1.
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• as would otherwise •' • in a • title report, to the current, actual
knowledge of Seller, Seller warrants to City that as of the date of this Agreement and/or as of
the date of close of escrow, Seller has not granted any unrecorded easements or licenses on
the Property and Seller does not have actual knowledge • grants of any unrecorded
easements or licenses on the Property by others.
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To the current, actual knowledge of Seller, Seller warrants that there is not now, and/or
as of close of escrow, there will not be, any violation of any law, ordinance, rule, or
administrative or judicial order affecting the Property, nor is there any judicial order affecting
the Property, nor is there any condemnation, zoning change, or • proceeding or action
(including legislative action) pending, threatened, or contemplated by any governmental body,
`:• City, authority, or agency that will in any way affect the size • use • • or
construction on, or access to the Property • City. This warranty does not apply to
•• action where notice has not been provided to Seller.
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To the current, actual knowledge of Seller, Seller warrants that as of the date of this
Agreement and/or as of close of escrow, Seller has not entered into any contracts, leases,
licenses, commitments, or undertakings respecting the Property, or for the performance of
services on the Property, or for the use of the Property or any part of it or any agreement or
contract of any kind pertaining to the Property by which City would become obligated or liabl(.-
to •
W. .
To the current, actual knowledge of Seller, Seller warrants and represents that as of the
date of this Agreement and/or as of close of escrow, Seller has no notice or knowledge of any
violation of any statute, ordinance, regulation or administrative or judicial order or holding,
whether or not appearing in public records, with respect to the Property or any improvements
on the Property.
7.1 Seller warrants and represents that, during the time in which Seller has owned
the Property, neither Seller nor, to the current, actual knowledge of Seller, any third party, has
used, generated, manufactured, produced, stored or disposed of, on, under, or about the
Property or transported to or from the Property any hazardous materials, including without
limitation, flammable materials, explosives, asbestos, radioactive materials, hazardous wastes,
toxic substances, or related injurious materials, whether injurious by themselves or in
combination with other materials in violation of applicable federal, state or local laws. To the
current, actual knowledge of Seller there is no proceeding or inquiry by any governmental
authority, including without limitation, the California or Federal Environmental Protection
Agency or the California State Department of Toxic Control, or state or regional water quality
board, with respect to the presence of such hazardous materials on the Property or their
migration from or to other property. For purposes of this Agreement, the term "hazardous
materials" shall include but not be limited to substances defined as "hazardous substance,"
"hazardous materials," or "toxic substances" in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (Title 42 United States Code Sections
9601-9675); the Hazardous Materials Transportation Act, as amended (Title 49 United States
Code Sections 1801-1819); the Resource Conservation and Recovery Act of 1976, as
amended (Title 42 United States Code Section 6901-6992k); and any substance defined as
"hazardous waste" in Health and Safety Code Section 25117 or as "hazardous substance" in
Health and Safety Code Section 25316, and in the regulations adopted and publications
promulgated under these laws.
7.2 Seller hereby agrees to indemnify, protect, hold harmless, and defend City, its
council members, officers, employees, agents, from and against any and all loss, expense,
Iamage and liability, including without limitation (1) all foreseeable and unforeseeable
consequential damages, directly or indirectly arising from the use, generation, storage, or
:fisposal of hazardous material on the Property by Seller and Seller does not have actual
knowledge of consequential damages, directly or indirectly arising from the use, generation,
storage, or disposal of hazardous material on the Property by others (2) the cost of any
required or necessary repair, cleanup, or detoxification and the preparation of any closure or
tther required plans, regardless of whether such action is required before or after the close of
;�scrow, but only to the extent that such liability is attributable, directly or indirectly, to the
presence or use, generation, storage, release, threatened release, or disposal of hazardous
materials by Seller that occurred while Seller owned the Property. Seller's indemnity shall
qurvive close of escrow.
7.3 From and after record of Construction Easement, City agrees to indemnify,
protect, hold harmless and defend Seller against any and all loss, expense, damage and
liability, including without limitation (1) all foreseeable and unforeseeable consequential
damages, directly or indirectly arising from the use, generation, storage, or disposal of
hazardous material on the Property by City; and (2) the cost of any required or necessary
repair, cleanup, or detoxification and the preparation of any closure or other required plans, but
only to the extent that such liability is attributable to the presence or use, generation, storage,
release, threatened release, or disposal of hazardous materials on the Property by City. City's
indemnity shall survive close of escrow.
MEMMYTOMMMMITITis GO
8.1 Title Company shall be able to issue in favor of City an ALTA standard owner's
policy of title insurance dated as of close of escrow with liability not less than the purchase
price, covering the Property, showing title vested in City, and showing as exceptions only
current general and special real property taxes, bonds and assessments not yet delinquent,
and the exceptions to title that City has approved.
in it ("Title Documents"). City shall notify Seller and Escrow Holder in writing within ten (10)
days after receipt of the title commitment and the Title Documents of City's disapproval of any
exception in those documents. If any supplemental title commitment or supplemental Title
Documents are submitted, then City shall notify Seller and Escrow Holder in writing within ten
(10) days after City's receipt of such items, but not later than the date mutually agreed upon by
the parties in writing for the Close of Escrow, of City's disapproval of any title exception set
forth therein.
Failure of City to notify Seller and Escrow Holder in writing of City's disapproval of any
title exceptions shall conclusively be considered as City's approval of same. If City disapproves
any title matter referred to in this paragraph, then, at City's option, this Agreement and the
escrow shall be canceled, and in such event all funds or other things deposited by City shall be
returned to City immediately on demand, and City shall pay all title company and escrow
charges.
8.3 City shall pay for a Property Condition Inspection by a competent inspector
selected by the City. City's obligation to close escrow is contingent upon City's approval of the
condition of the Property at its sole discretion.
8.4 If there is a breach of any representation or warranty given by Seller pursuant to
this Agreement that is discovered by City before close of escrow, then City may nevertheless
elect to proceed to close the escrow, in which event City shall be deemed to have elected to
waive such breach, or City may elect to terminate this Agreement and the escrow, in which
event this Agreement shall be canceled. If this Agreement and the escrow are terminated by
City's election under this paragraph, then all funds or other things deposited by City, if any,
shall be returned to City immediately on demand, and Seller shall pay all title company and
escrow charges.
To Seller's current, actual knowledge, as of the date of this Agreement and/or as of
Close of Escrow, no litigation is or will be pending against Seller regarding the use, operation,
development, condition or improvement of the Property, or regarding any right, title or interest
in the Property.
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Seller and City acknowledge that the purchase and sale of the Property has been
negotiated under the threat of condemnation of the Property by the City. In the event of Seller
default, City's ability to perform is prejudiced. Accordingly, in the event the escrow fails to
close by reason of a default by Seller, Seller agrees:
!E!
B. That the Seller waives any right to bring an action or claim against City in inverse
condemnation or to seek damages for alleged precondemnation conduct arising out of the
acquisition by City contemplated under this Agreement.
C. Seller acknowledges that in waiving these claims they have not relied on any
representations or statements made or said by City, its agents, attorneys or other
representatives.
Except as set forth below in this Section, each party bears its own costs and fees,
including any attorneys' fees, associated with the acquisition by the City contemplated under
this Agreement. If any party files an action or brings any proceeding against the other arising
from this Agreement, or is made a party to any action or proceeding brought by the Escrow
Holder, then as between City and Seller and City, the prevailing party shall be entitled to
recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees to
be fixed by the court. The "prevailing party" shall be the party who is entitled to recover its
costs of suit, whether or not suit, proceeds to final judgment. A party not entitled to recover its
costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in
calculating the amount of a judgment for purposes of deciding whether a party is entitled to its
costs or attorneys' fees.
All warranties, covenants, and other obligations stated in this Agreement shall survive
close of escrow. All warranties, covenants, and other obligations that the City discovers to be
breached before tender of the deed, and that City either expressly waives or does not object to
before such tender, shall not survive tender of the deed.
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Except as otherwise provided herein, this Agreement inures to the benefit of, and is
binding on, the parties, their respective heirs, personal representatives, successors, and
assigns.
This Agreement constitutes the entire agreement among the parties and supersedes all
prior discussion, negotiations, and agreements whether oral or written. Any amendment to this
Agreement, including an oral modification supported by new consideration, must be reduced to
writing and signed by all of the parties before it will be effective.
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No representation, warranty, or recommendation is made by Seller or City or their
respective agents, employees, or attorneys regarding the legal sufficiency, legal effect, or tax
consequences of this Agreement or the transaction, and each signatory is advised to submit
this Agreement to his or her respective attorney before signing
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This Agreement may be executed in counterparts, each of which so executed shall,
irrespective of the date of its execution and delivery, be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
Time is of the essence of this Agreement, and failure to comply with the time provisions
of this Agreement shall be a material breach of this Agreement.
I
IT: W-O fl VW I"M I we M M 170 a
Except as set forth in Section 7, in its entirety, Section 8.4 and Section 11, in no event
shall Seller have any • to the City for damages.
ITS FIRMS •R •
The City's contractor(s) shall not occupy any portion of the Seller's property, within the
Construction Easement area described and shown on EXHIBITS "A" and "B" of the attached
Temporary Construction Easement Deed, for a period in excess of six (6) months following the
• • written notice thereon to perform work. As a condition • exercising the Construction
Easement, the City • its contractors shall provide at least a seventy-two (72) hour prior written
notice to Seller before performing work on or about the Property. The six (6) month term of the
temporary construction easement will commence when written notice is provided to Seller by
the City or its contractor(s). Written notice will be provided no later than seventy-two (72) hours
from the temporary construction easement start date. All work by the City or its contractors
shall be performed in compliance with applicable laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
set forth ••:
;1A1rUU
By:
Name: v r- tj e 0 QN rckki
Title: k
By:
Name:
Title:
CITY OF DOWNEY:
-Orr, Date:
Bl6a Pacheco, Mayor
Date: lo zz
(Print)
by'n-
IBM
ATTACAMEAT "A!p
A. Ni7woWW"m ?"Mm7d"
ttktt OF CALIFORNIA, DESCRIBED AS FOLLOWS:
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When Recorded Mail to:
CITT CLER&
CITY HALL, CITY OF DOWNEY
P.O. BOX 7016
DOWNEY, CA 90241-7016
"This document is recorded for the benefit of
the City of Downey and is therefore exempt
from recording fees pursuant to Gov Code
Section 27383 and exempt from documentary
transfer tax pursuant to Rev. & Tax Code
Section 11922"
A: A-4793
ATTACHMENT "B"
Page 1 of 5
Space above this line is for Recorder's Use
19=11,11:14 I F
Irene Cantoran, Trustee of The Irene Cantoran Revocable Living Trust dated May 5, 2020, hereinafter called Grantor,
does hereby grant to the CITY OF DOWNEY, A MUNICIPAL CORPORATION OF THE STATE OF CALIFORAIA AAD
CHARTER CITY ("Grantee"), its employees, agents, representatives, contractors, successors and assigns, a temporary
easement for construction purposes in, on, over, and across all that real property in the City of Downey, County of Los
Angeles, State of California, described as
SEEATTACHMENT
EXHIBIT "A"� LEGAL DESCRIPTION
AND
EXHIBIT "B'�- FOR VISUAL REFERENCE ONLY
It is understood and agreed that the rights granted herein shall terminate six (6) months from notification to Grantor by Grantee
of the start of construction. The six (6) month term of the temporary construction easement will commence following a seventy-
two (72) hour written notice to the Grantor by the City or its subcontractors.
Dated: GRANTOR:
• a . i•
1:4 AvIelef-1:1 11:4 4 VA I � 1CJk 9;411.19 my -A I N1 1A J, r--V I
By:
Its:
Name:
By:
Its:
Name:
Page 2 of 5
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Mlit OF CALIFORNIA, DESCRIBED AS FOLLOWS:
Aerial View of Subject Property
ATTAUA-WEA-r'W
Page 3 of 5
Map of Purchase Interest Area
ATTA_G&4EAT_9r
Page 4 of 5
A —notary public -or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certcate is attached, and not the truthfulness, accuracy, or vaty of that
document.
State of California
County of
on —before -Not,,, D-1.1;_
(Insert narn e of the a_A_Ti —ce-C (insert title of the officer)
j
personally appeared
Name of Signer (1)
A Name of Signer (2)
wI o proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/me subscribed to the
hm instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized
im_w6t4AM�( and that b_,, tbc"Zaatur&A) on the instrument thr n 'y upon behalf of which axQn(,%j_aLdw_a92
the person(s) acted, executed the jqoLpM
rM IMAKFINJOV, MUTTIONA,
and correct. _W : i &Z I.I.W: ju'IL jr
WITNESS my hand and official seal.
ME
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Page 5 of 5
M W --- M - = W M
This is to certify that the temporary easement more particularly described in EXHIBIT "A" and
EXHIBIT "B" to the attached TEMPORARY CONSTRUCTION EASEMENT DEED to the
undersigned City of Downey ("CITY"), the provisions of which instrument are incorporated by this
reference as though fully set forth in this certificate, is hereby accepted by the undersigned officer/agent
on behalf of the CITY's Council Members, and the Grantee consents to recordation thereof by its duly
authorized officer.
�, �1�1 10
By:
Zarl#aA41i"cia D—auarte*KC6��
City Clerk
Dated:—
ATTACHMENT 99CIP
I : 04 7,773 r 7 Q
City and Seller agree to open escrow in accordance with Section 2 of this Agreement.
This Agreement constitutes the joint escrow instructions of City and Seller, and Escrow Agen1
to whom these escrow instructions are delivered is hereby empowered to act under this
Agreement. The parties hereto agree to do all acts necessary to close this escrow in the
• possible time.
As •• as possible after ••' • escrow, Seller will execute the respective Easement
Deed attached to this Agreement as the "Construction Easement" and deposit the executed
deed with Escrow '• • City's behalf. City agrees to •'•• the • • upon
demand of Escrow Agent. City agrees to deposit with Escrow Agent any additional
instruments as may • necessary to complete this transaction.
Insurance policies for fire or casualty are not to be transferred, and Seller will cancel
Seller's own policies after close of escrow.
All funds received in this escrow shall be deposited with other escrow funds in a •s.
escrow account(s) and may be "• to any other such escrow trust account in any State
sr National Bank doing business in the State of California. All disbursements shall be made by
check and/or wire transfer from such account.
2. Escrow Agent is Authorized and is Instructed to Comply with the Following
Tax Adjustment Procedure:
A. Pay and charge Seller for any unpaid delinquent taxes and/or penalties and
interest thereon, and for any delinquent or non -delinquent assessments or bonds
against the Property.
B. In the event this escrow closes six months subsequent to execution of this
agreement, and the current tax information is not available from title insurer,
Escrow Agent is instructed to withhold from Seller's proceeds an amount equal to
100% of the prorated amount due based upon the previous fiscal year's second
half tax bill. At such time that the tax information is available, Escrow Agent shall
make a check payable to the County Tax Collector for Seller's prorated portion of
taxes and forward same to the City and shall refund any difference to the Seller.
In the event the amount withheld is not sufficient to pay Seller's prorated portion
of taxes due, the Seller herein agrees ::• immediately pay the •
In the event said tax information is available, Seller's taxes shall be prorated in
accordance with paragraph "C" below.
CFrom the date that tax information is available, as per paragraph "Bup to and
including June 30th, Seller's current taxes, if unpaid, shall be prorated to date of
close of escrow on the basis of a 365 day year in accordance with Tax
Collector's proration requirements, together with penalties and interest, if said
current taxes are unpaid after December 10 and/or April 10. At close of escrow,
check payable to the County Tax Collector for Seller's pro-rata portion of taxes
shall be forwarded to City with closing statement.
DAny taxes which have been paid by Seller, prior to opening of this escrow, shall
not be prorated between City and Seller, but Seller shall have the sole right, after
close of escrow, to apply to the County Tax Collector of said county for refund.
This refund would apply to the period after City's acquisition, pursuant to
Revenue and Taxation Code Section 5096.7.
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B. Pay and charge City for 100% of escrow fees and closing costs payable under
this Agreement.
C. Disburse funds and deliver deed when conditions of this escrow have been
fulfilled by City and Seller.
The Term "close of escrow", if and where written in these instructions, shall mean the
date necessary instrument of conveyance is recorded in the office of the County Recorder.
Recordation of instrument delivered through this escrow is authorized if necessary or proper in
the issuance of said policy of title insurance.
All time limits within which any matter herein specified is to be performed may be
extended by mutual agreement of the parties hereto. Any amendment of, or supplement to,
any instructions must be in writing.
4. Time is of the Essence in these Instructions and Escrow is to Close as
Soon as Possible
If (except for deposit of money by City, which shall be made by City upon demand of
Escrow Agent before close of escrow) this escrow is not in condition to close within sixty (60)
days from:•.te of i party who then shall have fully complied with these
showninstructions may, in writing, demand the return of their money or property; but if none have
complied, no demand for return thereof shall be recognized until five (5) days after Escrow
finstructions,•: if any objections are raised within said •.
period, • Agent is authorized to hold all papers anf documents until instructedby i
of competent jurisdiction or mutual instructions. If no demands are made, proceed with closing
of this escrow as soonpossible.
Seller hereby grants to City, or its authorized agents, permission to enter upon the
Property at all reasonable times prior to close of escrow for the purpose of making necessary
or appropriate inspections.
Loss or damage to the real property or any improvements, thereon, by fire or other
casualty, occurring prior to the recordation of the Deed shall be at the risk of Seller. In the
event that loss or damage to the real property or any improvements thereon, by fire or other
casualty, occurs prior to the recordation of the Deed, City may elect to require that the Seller
pay to City the proceeds of any policy of insurance which may become payable to Seller by
reason thereof, or to permit such proceeds to be used for the restoration of the damage done,
or ` iuce the total price by • equal to the diminution in value of i Property by