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HomeMy WebLinkAboutResolution No. 22-8114 - Approving Purchase and Acq of Temp Construction Easement for Property located at 9050 Imperial Hwy• Itil I Lei• RESOLUTION OF • OF OF DOWNEY APPROVING THE PURCHASE AND ACQUISITION OF A TEMPORARY CONSTRUCTION EASEMENT BETWEEN - D• CALIFORNIA LIMITED LIABILITY COMPANY, AND THE CITY OF DOWNEY FOR PROPERTY LOCATED AT 9050 IMPERIAL HIGHWAY PURSUANT TO THE ADOPTED MITIGATr NEGATIVE DECLARATION• - THE IMPROVEMENTLAKEWOOD BOULEVARD AT IMPERIAL HIGHWAY INTERSECTION • WHEREAS, the City of Downey ("City") has negotiated a purchase agreement with Regency inn — Downey, LLC, a California Limited Liability Company ("Seller"), pursuant to which the City would acquire a Temporary• •Easement . • .-• at 9051 Imperial Downey,• purchase . • acquisition price of ` Hundred Thirty Dollars 1 10) ("Agreement"); an• pursuantWHEREAS, on September 14, 2021, the City Council, • the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (CEQA), and the State CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.) determined that an Mitigated Negative Declaration (MND) be prepared pursuant to CEQA in order to analyze all potential adverse environmental impacts of the Lakewood Boulevard at Imperial Highway Intersection Improvements project ("Project"); and WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has been certified, the lead agency is required to review any changed circumstances to determine whether any of the circumstances under Public Resources Code section 21166 and State CEQA Guidelines Section 15162 require additional environmental - and '- • •• -I Lei 1•• . • .i-. •- - - • • •' WHEREAS, based on that evaluation, staff concluded that the MND fully analyzed and mitigated all potentially significant environmental impacts, if any, that would result from the Aurchase and acquisition of a Temporary Construction Easement, and therefore, no subsequent EIR or mitigated negative declaration is required; 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 and welfare. • - NJ; • •�•'' B• •• • SECTION . Having considered the administrative record, the MND and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the purchase and acquisition of the Temporary Construction Easement have been addressed within the MND. The City Council finds that no new or additional mitigation measures are required. The Council further finds that there is no substantial evidence in the administrative record supporting a fair argument that the purchase and acquisition WACJ of the Temporary Construction Easement may result in any significant environmental impacts beyond those analyzed in the MND. I I 112al -0 "'I ayor tu UARTYU Me other jocuments and agreemer�ts' necessary to complete the sale transactio contemplated by the Agreement. g��IJJJC�pil 11�li; 111IIII!!!l 1111��!! 11!!Iliir��lr pillir I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at an Adjourned Regular meeting held on the 1 oth day of November, 2022 by the following vote, to wit: AYES: Council Members: Frometa, La Plante, Trujillo NOES: Council Members: None. ABSENT: Council Members: Alvarez, Mayor Pacheco ABSTAIN, Council Membem. None. A �IAALI�CIAD�U�R M`C�� City Clerk r3c-1 0:44 j, I TH 18 AGREEMENT Js entered -into this V� day of NMqU6h1t_. 422, by and among the CITY OF DOWNEY, A MUNICIPAL ■i■ AND CHARTER CITY (hereinafter "City"), and Regency Inn — Downey, LLC, a California limited liability company, (hereinafter "Seller"). 1 . Seller owns real property at 9050 Imperial Highway, Downey, California, further legally described in ATTACHMENT "A" is incorporated herein by this reference and hereafter referred to as the "Property". 2. The City desires to acquire a temporary construction easement from the Seller for the Lakewood • & •• Hwy. Intersection Improvement Project. 3. The City desires to acquire a temporary construction easement from Seller. The six (6) month term of the temporary construction easement will commence when written notice is provided to Seller • the City •, its contractor(s). The six (6) • term • the temporary construction easement will commence following a seventy-two (72) hour written notice to the Grantor by the City or its subcontractors. The temporary construction easement is described and • in EXHIBITS "A" and "B" of the attached Temporary Construction Easement ,__• ("Construction Easement") and incorporated herein of this Agreement as ATTACHMENT "B". NOW, THEREFORE, in view of the above -recitals and mutual promises and covenants contained herein, the parties agree as follows: 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 for the compensation of the temporary construction easement, payable in cash through escrow, shall be at a cost of FIVE HUNDRED THIRTY DOLLARS ($530.00). 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 '• the • contained in this Section 1, the City shall remain liable for any injury to persons or damage to property relating to or ariising from the acts of omissions of the City or its agents, employees, contractors and representatives on the Property. FOT. I =J, This sale shall be consummated through approval by City's designee(s) and/or City Council. 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 instructions of 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 I above, payable to Seller. The closing date for the escrow shall be no later than sixty (60) days after opening of escrow, unless such date is extended by 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 costs. City shall also pay the costs of the ALTA title insurance referenced in Section 8. 1. R. I•I I - � 11 6 Except as would otherwise be shown in a preliminary 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 of grants of any unrecorded easements or licenses on the Property by others. 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 other proceeding or action (including legislative action) pending, threatened, or contemplated by any governmental body, except City, authority, or agency that will in any way affect the size or use of, improvements or construction on, or access to the Property by City. This warranty does not apply to governmental action where notice has not been provided to Seller. li�ill�illilliliiii III11IlIIlI!Il,�1 11 1111111111 ,,,1 I llli�llli! 1!lll 1111111 Ill 1 1111111111111 • IL 11 illIll ii• 0 0 4 1- 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 liable to anyone. M-mrmmnygr=ML��� 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. E-1-741111M.M4 I III 12-11111141 L=- 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 materialsor "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, 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 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 other required plans, regardless of whether such action is required before or after the close of escrow, 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 survive 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 :iamages, 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 tnly 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. City's obligation to perform this Agreement is subject to City's approval of the condition of title, described in Sections 8.1 and 8.2, City's approval of the condition of the Property described in Section 8.3, and no breach of representations, as described in Section 8.4. 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, 2nd the exceptions to title that City has approved. IN 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 (110) 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. MiNceplooffis OR curiciuMveiJ Ve CO[ISJUereU d5 ApproTai of saine. A City 015apff 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. • OWN I I 3I OMEMM3= elect to proceed to close the escrow, in which event City shall be deemed to have elected to waive such breach, • 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 •' '• to City immediately •'. demand, and Seller shall pay all title company and escrow charges. 8.5 Seller agrees that upon the completion of the Intersection Improvement Project, the Property will be left in an equal or better condition than it was before the Buyer's acquisition of the Temporary Construction Easement. 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. • UM I t7- WT • M-7 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 o e ler 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: WMERUMEM, 1TMr1Z4—MFMRMM�= B. That the Seller waives any • to bring an action •:: 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 • any representations or statements made or said by City, its agents, attorneys or other • • L= Except as set forth below in this Section, each party bears its own costs and fees, including any attorneys' fees, associated with the acquisition • the City contemplated under this Agreement. If any party files an action or brings any proceeding against the other arising from this Agreement, • is made a party to any action or proceeding brought • 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. 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 -9ssigns. 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. illo 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 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. Except as set forth in Section 7, in its entirety, Section 8.4 and Section 11, in no event shall Seller have any liability to the City for damages. i I•I• I - I . 6 a - a A 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 date of written notice thereon to perform work. As a condition of exercising the Construction Easement, the City or 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 1eritabove. By: Name: w"; Date: 441z- (Print) Date: —� ( t0 2- Z-- rin CITY OF DOWr: Date: ....... ... ..... .. ....... (Pra-'u--dia Frometa, Council Member (Print) GEM I M-M, 0 =*-. ATTACHMENT "App EXj4i9iT,,App ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DOWNEY, COUNTY OF LOB ANGELES. STATE OF CALIFORNtA DESCRI13ED AS FOLLOWS: When Recorded it to: CITT CLERK CITY HALL, CITY OF DOWNEY P.O. BOX 7016 i • 1 ', 'This document is recorded for the benefit of the City of Downey and is therefore exempt from recording fees pursuant to Govt Code Section 27383 and exempt from documentary transfer tax pursuant to Rev. & Tax Code Section 11922" i Space above this line is for Recorder's Regency Inn — Downey, LLC, a California limited liability company, hereinafter called Grantor, Countyof Los Angeles,_ of • described as SEEATTACHMENT DESCRIPTION AND •' + following a seventy-two (72) hour written notice to the Grantor by the City or its subcontractors. Dated- GRANTOR; • ATTACHMENT ®' 11 ' ! ' 1 � T -' i' 1 i'� • i i' n 1 :a i. 1 Page 3 of 5 Aerial View of Subject Property lImpadal Highway I M32:= A notary public or other officer completing this cercate veres 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 Califoniia County of— LO5Ay)qdAZ5 personally appeared W \)a K6 Notuv Public Juju "11 (insert title of the officer) Narne of Signer (2) who proved to me on the basis of satisfactory evidence to be the pers*s) whose name(s) is/are subscribed to the within instrument and aelmowledged to me that helshelthey executed the same in Jus/her/their authorized capacityW. and that by his1her/their Bignature(s) on the instrument the person(s), or the entity upon behalf of which the person(&) acted. executed the kSWWA I cert* under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. X= ATTACHMENT "B" Page 5 of 5 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 ("CITYthe 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. APN: 6256-012-007 By: 47 446AVIicia Alicia 4 City Clerk kjr.& ATTACHMENT "Cop 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 Agent 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 shortest possible time. As soon as possible after open of escrow, Seller will execute the respective Easement Deed attached to this Agreement as the "Construction Easement" and deposit the executed deed with Escrow Agent on City's behalf. City agrees to deposit the purchase price upon demand of Escrow Agent. City agrees to deposit with Escrow Agent any additional instruments as may be 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 general or 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 Followin,-c 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 to immediately pay the difference. In the event said tax information is available, Seller's taxes shall be prorated in accordance with paragraph "C" below. C. •: the • that tax information is • as per paragraph "B," • to and including June 30th, Seller's current taxes, if unpaid, shall • prorated to • of close • •'w.. • the basis of a 365 • 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 • forwarded to City with closing statement. D. Any 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. T-1 VA(61f] FIRMH F-MI IM*j lit 114 Is] in L�j ILIFAI 11 VV,;kjIj B. Pay and charge City for 100% of escrow fees and closing costs payable under this •• C. • funds and deliver deed when conditions • this escrow have been fulfilled • City and Seller. The Term "close of escrow", if and where written in these instructions, shall mean thi., 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 • said policy • title insurance. All time limits within which any matter herein specified is to be performed may b(I extended by mutual agreement of the parties hereto. Any amendment of, or supplement to, any • must be in writing. 4. Time is of the Essence in these Instructions and Escrow is to Close as Soon 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 date of these instructions, any party who then shall have fully complied with these instructions 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 Agent shall have mailed copies of such demand to all other parties at the respective addresses shown in these escrow instructions, and if any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or mutual instructions. If no demands are made, proceed with closing of this escrow• •' as possible. Seller hereby grants to City, or its authorized agents, permission to enter upon the Property • • prior t•: close of :. • for purpose of •: necessary or appropriate inspections. is .. i l l: • • i Loss• : damage •.the realproperty or • othereon, byfireor 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 is any policy of become payable ta: Seller by reason thereof, or to permit such proceeds to be used for the restoration of the damage done, or • reduce• . price by ..: amount equal t• the diminution• : said Property •1 : by reason of such loss or damage or the amount of insurance payable to Seller, whichever is greater. Seller shall not be liable for any loss or damage to Property caused by City upon the effective date of the Construction Seller instructs Escrow Agent to release a copy of Seller's statement to City.