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HomeMy WebLinkAboutResolution No. 22-8115 - Approving Purchase and Acq of Temp Construction Easement for Property located at 10232-10250 Lakewood Blvd.4 --ms] I[ I I I Lei 14 1 kq 15631IRM-1 I P A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING THE PURCHASE AND ACQUISITION OF A TEMPORARY CONSTRUCTION EASEMENT BETWEEN CALIFORNIA ASSET PORTFOLIO, INC., A CALIFORNIA CORPORATION, AND THE CITY OF DOWNEY FOR PROPERTY LOCATED AT 10232-10250 LAKEWOOD BOULEVARD PURSUANT TO THE ADOPTED MITIGATED NEGATIVE DECLARATION FOR THE FLORENCE AVENUE AT LAKEWOOD BOULEVARD INTERSECTION IMPROVEMENT PROJECT IRT111 11 =iT1=A=e P=11u, I r iu., a udillul ilia kU1PV1dL1Ur1 k oullrd[ ),Pat 2cquire a Temporary Construction Easement ("Easement") located at 10232-10250 Lakewood Boulevard, Downey, CA for a purchase and acquisition price of Six Hundred Dollars ($600.00) ("Agreement"); and WHEREAS, on November 10, 2021, the City Council, pursuant to 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 Florence Avenue at Lakewood Boulevard 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 review; and WHEREAS, staff evaluated the purchase and acquisition of a Temporary Construction Easement in light of the standards for subsequent environmental review outlined in Public Resources Code section 21166, and State CEQA Guidelines section 15162; and 11AEREAS, 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 purchase 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. 11 i I 1 0 1 w ff V WROMN 206WAVA WIXOM] WRILORT164"I SECTION 1. The City Council of the City of Downey hereby (i) approves the Agreement, a copy of which attached hereto as Exhibit "Aand 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 Agreement. Wee17C1W1'F1-FW'-WZ--6yinJ PAGE 2 I W_-TW- be W-- Will Wo"W-16 The Council further finds that there is no substantial evidence in the administrative record supporting a fair argument that the purchase and acquisition of the Temporary Construction Easement may result in any significant environmental impacts beyond those analyzed in the MND. I � ; 11 � I'mw 1n; APPROVED AND ADOPTED this 1 oth day of November, 2022. CLAUDrA FROME1W Council Member 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: Fro meta, La Plante, Trujillo NOES: Council Members: None. ABSENT: Council Members: Alvarez, Mayor Pacheco ABSTAIN: Council Members: one. "--&�IALICIADUAT ��C��� City Clerk {�711=3�r1 TEiLPORARY ALIFORNIA x ! ?W2, by and among legally 2. The City desires to acquire .. temporary constructioneasement i the Seller for • • • Blvd. & FlorenceAve.in Improvement Project. 3. The City desires t• acquire - pi • .ry construction easement from noticeeighteen (18) month term of the temporary construction easement will commence when wrift provided • Seller by or rf ir(s). Written noticebe provided is later than twelve (12) months from close of escrow of this Agreement. The tempora construction easement is described and shown in EXHIBITS "A" and "B" of tach the at Temporary • :• Eas ement Deed("Construction - and .iincorporatedi here of this Agreement as ATTACHMENT "B". The City shall notify the Seller thirty (30) days prior ., • • I '. i • •near,•: around Property. 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 i • easement and City agreesto purchase the Property from i to compensate the Seller for the temporary construction easement. The total price for the purchase of a portion of the property and compensation for the temporary construction payable in cash throughescrow,be at a cost•1 SIX HUNDRED DOLLARS 1 1 1 1 1 1 1 1 exchange for receipt of i Cityof • all claims by -ller under the United States ConstitutionAmendments 5 and 14, and• i under2-11 claims • i but ;• -• to claims for. of - real estateE improvements - thereon, severance damages, .•- - i: • I benefits and loss of goodwill. Notwithstanding • to the contrary contained in this Sectionremain liablei I any injury to persons or damage • property r- • to or • fromof omissions of the City or its agents, employees, contractors and representatives on the Property. The City shall keep the Property clean and clear of any debris that might injure any person or cause a liability to the Seller. 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 (to be determined by the City). This Agreement, along with the Road Deed, Construction Easement and ATTACHMENT "D" 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 1 above, payable to Seller. The closing date for the escrow shall be no later than forty-five (45) days after opening •t escrow, unless such date is extended •; written agreement of the parties. "Close of Escrow" shall be the date when the Road Deed to the City is recorded. City shall • any and all escrow and closing • City shall also •. the costs •r the ALTA title insurance referenced in Section 8.1. 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 • • • • there will not •,` any violation • any law, ordinance, rule, • administrative or judicial order affecting the Property, nor is there any judicial order affecting the Property, nor is there any condemnation, zoning change, • other proceeding • action (including legislative • pending, threatened, • contemplated • any •• ♦•• except City, authority, • agency that will in any way affect the size • use of, improvements • 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. I . . I i • 111� 1111��11111 11�1111111 • I - I a * 0 0 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 • anyone. 7.3 From and after record of Road Deed, 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 �Ere�siaration of anrA closure or other 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. Z III 1111111111 11 1117411:11111111711 11 0 0 1 1111111111111111 �illill� ��• :i III - 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, 8.2 Promptly, upon opening of escrow, Escrow Holder shall furnish City with a title commitment for an ALTA title policy and legible copies of all documents reported as exceptions 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. !J 01 LOI• 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 gelected 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 • shall be canceled. If this Agreement and the escrow are terminated • 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 •`:.. • Seller's current, actual knowledge, as • the • of this •: and/or as •( Close of Escrow, no litigation is or will be pending against Seller regarding the use, operation, fevelopment, condition or improvement of the Property, or regarding any right, title or interest .n the Property - 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 �efault, 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: A. That the public interest and necessity requires the acquisition of the Property. B. That the Seller waives any right to bring an action • claim against City in invers;1 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 • Except as set forth below in this Section, each party bears its own costs and fees, including any ':• fees, associated with the acquison • the City contemplated under this • If any • files an action • brings any proceeding against the • 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 •. shall •` `• 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 • • suit, whether •: not suit, proceeds to final judgment. A • 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. • -Ve'e, %—I fell re f it -tI R pt, 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 •. 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 • all • the •. before it will •` effective. No representation, warranty, or recommendation is made by Seller or City or their respective agents, employees, • attorneys regarding the -•. sufficiency, legal effect, • 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 it. 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. 9MMMXWM3= The City shall defend, indemnify and hold Seller and the tenant of the Property harmless from and against any and all claims, demands, causes of action, judgments, liabilities, damages, costs and expenses (including reasonable attorney's fees and consultant and expert fees) relating to or arising from the City's activities on the Property. 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. 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 eighteen (18) 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 30 days prior written notice to Seller before performing work on or about the Property. The eighteen (18) 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 twelve (12) months from close of escrow of this Agreement. All work by the City or its contractors shall be performed in compliance with applicable laws. Further all work done by the City shall not interfere with the business operations of all the tenants at the Property. The City shall ensure that the construction easement is kept clean at all times. F�1.1�yl!llr�ili�l�r+11;11�im - . . 6 0 Driveway is to remain one-half of the way accessible at all times during construction. Tenant's business'will not be disrupted by construction. The City will provide signs for the tenants stating "Open for Business" and directional signs for the entrance. I"T'TITAESS WHEREOF, the parties hereto have executed this Agreement the day and year zet forth herinabove. MAXqq.�l CALIFORNIA ASSET PORTFOLIO, INC., A CA By: Name: --Robert Bral Title: General Manaaer Date: Z Date: 0 - 2-2- (Priut) Bruce Gridle'yl, Le a1 1; unsel M AWAN54OW001:1-1,11141 • 1 WAR", M IM, ili'Dwa No OAW, I 6=0 N* i # loll MAIII-AMIRL" WMIA0103',151,42-4 MAIRIMAUNWAMMI , , - EKT-'Er Page I of 5 P.O. BOX 016 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't Code Section 27363 and exempt from documentary transfer tax pursuant to Rev. & Tax Code Section 11922" APN'6285-002-008 Space above this line is for Agreement No.`� L t6f*1 E*J CA' Or -] IVA I'D 4 AL-KIRULS12 0101,ffil U-TAK41111IVjL41z 00111MI all m In rmLf L:�RM"l 1 *1--111 ei I fflovizi RL- I lo 1r**jp1�-jsjv1 I RIO SEE ATTACHMENT EXHIBIT "A'�- LEGAL DESCRIPTION AND It is understood and agreed that the rights granted herein shall terminate eighteen (18) months from notification to Grantor by Grantee of the start of construction. The eighteen (18) month term of the temporary construction easement will commence when written notice is provided to Seller by the City or its subcontractors. Written notice will be provided no later than twelve (12) months from dW.seof escrow of Agreement No. 4776. \/Datcd: GRANTOR: CALIFORN [A ASSET PORTFOLIO, INC., A CALIFORNIA CORP 1ON I V General Manager Nam,::: By: Its: Name: ATTACHMENT "B" Page 2 of 5 EXHIBIT "A"- Legal Description W" u1mm NA1 Portion of APN 6295-002-008 Real property situate in the City of Downev, County of Los Angeles, to of California, described as follows.-, Being a portion of the lands of California Asset Portfolio, Inc. as described in that certain Grant Deed recorded September 29, 1998 as Instrument No- 98-1763591, more particularly described as follows-, COMMENCING at the centerline intersection of Lakewood Blvd- and FloTence Ave,; Thence along the center of said Lakewood Blvd. South 23'43'48" West, 426,99 feet', Thence perpendicular to the last described course South 66'1612" East, 60V0 feet to a point on the sort hersterlye line of said Lakewood Blvd, being also . th- �, northwesterly corner of the said lands of California Asset Portfolio, Inc, (hest_ No- 98-176358 1), said point being also the TRUE POINT OF BEGINNING, Thence along the northerly line of said lands South 58'02.'48" East� 4-98 feet Thence leaving said northerly line South 2341'13" West, 1 &03 feet-, Thence North 58'2 13 1 " West, 4,99 f"t to the southeasterly line of Lakewood Blvd., Thence along said southeasterly line. North 23*43'48" East, 18,05 fed to the POINT OF BEGINNING, Containing an area of 99 square fect, more or less - As shown on plat attached hereto and tky this reference made part hereof as Exhibit & For: LFBIKFIEto, inetwi .. Davis ThresW`P_EK­No`.TWi 411 MEMEL= 11/17/2020 Dated A-rYA-U?VF:fEn-ryff" Page 3 of 5 EXHIBIT "B"- For Visual Reference Only, Not for Descriptive Purposes RMfS QEAEARIN", FLOMWM AVE NORTH 23-43'48- EAST, BEING THE CENTERUNE OF LAKEWOOD BOULEVARD SHOWN AS N,23'4S35"E, ON THAT CERTAIN PARCEL MAP NO. 10943 AS SERIES NO. 79-823161 FILED ON JULY 26. 1979 IN BOOK 114 OF PARCEL MAPS AT PAGE 86 LE411END POO - PONT OF COMMENCEMENT TCE = TEMPORARY CONSTRUCTION EASEMENT TP08 TRUE POINT OF BEGINNING CENTERUNE DESCRIM AREA LOT UNE - - - - - - - - - RECORD LOT LINE 12 —Z TCE 09 SO. FT,* . . . . . . . . . . . . . . . . . . . . . . . . sr APN 6285---002--022 Page 4 of 5 N notary public or other officer completing this certificate verTles only the identity of the individual who signed the docinnent to which this cerfificate -is attached, and not the truthfulness, accuracy, or validity of that tocument. State of Caliform'a County of, Ay\eilto,4A IWA~ NachL� On 1.311 Q 2- 7— before me- Notq Pubric N2mff Public jnwrt nativ, Wtl,v �)LLI(Vj �'Wtolf',hf officer) personally appeared Name of Signer (2) M, owl W the person(s) acted, executed the I cert-L4- under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct - WHO M,4C9IAAPtP�Aj9 Own ,107 Page 5 of 5 [slog t 3XI 11 i W-1 USE* x a, ZT, VM , -low 0 1 Q MuLl", 'dolifludifEW 4 MOIJIM131g P: 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 refereici aj tjoug� ,11% g1l '. j on behalf of the CITT's Council illembers, and the Urantee consents to r ordation thereof by its duly authorized officer. APN: 6285-002-008 By: ATTACHMENT "C" usnog#r=. 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 Deeds attached to this Agreement as the "Road Deed" 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 agree's 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 escrow account(s) and may be transferred to any other such escrow trust account in any State 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 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 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, From the date that tax information is available, as per paragraph "B," up to and including June 30th, Seller's current taxes, if unpaid, shall • prorated to date • 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. D. Any taxes which have been paid • Seller, prior to opening • 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. 'kIIIIIIIIIIIIIIII A. Pay and charge City for 100% of escrow fees and closing costs and any amouWl necessary to place title in the condition necessary to satisfy this Agreement. Pay and charge City for 100% of escrow fees and closing costs payable under this Agreement. C. • funds and • deeds when conditions of this escrow have • fulfilled • City and Seller. The Term "close • escrowif and where written in these instructions, shall mean the �ate necessary instruments of conveyance are recorded in the office of the County Recorder. Recordation of instruments delivered through this escrow is authorized if necessary or proper in the issuance • said •,• of title insurance. All time limits within which any matter herein specified is to •- performed may be extended by mutual agreement of the parties hereto. Any amendment of, or supplement to, any • must • in writing. 4. Time is • the Essence in these Instructions and • is to • as •• as Possible If •s • deposit • money by City, which shall be made • City upon demand • Escrow Agent before close of escrow) this escrow is not in condition to close within forty-five (45) 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 • and if any objections are raised wn 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 • this escrow as soon as possible. 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. ". 11,11-12-1711 11:11ir 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, • to reduce the total price • an amount -• to the diminution in value • said Property • reason of such loss •,: damage • the • • 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 Road Deed. 7. Closing Statement I-M 157304TUMM