HomeMy WebLinkAboutResolution No. 23-8139 - Apprv Purchase & Acq of Temp Constr Easement w-Cottage Dev. Inc-10226 LakewoodRESOLUTION OF i OF OF DOWNEY
CONSTRUCTIONAPPROVING THE PURCHASE AND ACQUISITION OF A TEMPORARY
•DEVELOPMENT,
AND THE CITY OF DOWNEY FOR• •10226
DECLARATIONLAKEWOOD BOULEVARD PURSUANT TO THE ADOPTED MITIGATED
NEGATIVE FOR THE FLORENCE AVENUE AT LAKEWOOD
BOULEVARD INTERSECTION IMPROVEMENT PROJECT
WHEREAS, the City of Downey ("City") has negotiated a purchase agreement with
Cottage Development, Inc. ("Seller"), pursuant to which the City would acquire a Temporary
Construction Easement ("Easement") located at 10226 Lakewood Boulevard, Downey, CA for a
purchase and acquisition price of Five Thousand Dollars ($5,000.00) ("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 a 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 Improvement
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
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
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.
SECTION 1. The City Council of the City of Downey hereby (i) approves the Agreement,
a copy of which attached hereto as Exhibit "A", and is on file with the City Clerk, (ii) if required,
authorizes and directs the City Manager to make final changes to the 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.
SECTION 2 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.
RESOLUTION NO. 23-8139
PAGE 2
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.
iiiiiv; � ; 111111!!!J 111 11111111!1111111
APPROVED AND ADOPTED this 14 th day of February, 2023.
CLAUDIA M. FROWAETA, 'Mayor
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the
City of Downey at a Special meeting held on the 14 th day of February, 2023 by the following vote,
• wit:
AYES:
Council Members-
Horn, Sosa, Trujillo, FromeP.
•
• -:•-
None.
ABSENT:
Council Members:
Alvarez
I
ABSTAIN:
• Members:
None.
4_Tffl�,
TEMPORARY EASEMENT PURCHASE AGREEMENJ
PqVVNEY CALIFORNIA
THIS AGREEMENT is entered into thisj�6ay of", 2023, by and amonaf
the CITY OF DOWNEY, A MUNICIPAL CORPORATION ER CITY (hereinafter
"City"), and COTTAGE DEVELOPMENT INC., (hereinafter "Seller")-
1 . Seller owns real property at 10226 Lakewood Blvd., Downey, CA 90241, 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 Blvd. & Florence Ave. Intersection Improvement Project.
3. The City desires to acquire a temporary construction easement from Seller. The
Ot MIS Agreement as AT4XUA1ffERT76-1-ffe--UiV-� �anoffl�y the beller thirty p1l) aays prior to
any construction done on, near, or around the Property.
NOW, THEREFORE, in view of the above -recitals and mutual promises and covenants
contained herein, the parties agree as follows:
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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
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 I above, payable to Seller. The closing date for the escrow shall be no later
than forty-five (45) 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 Road Deed 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.
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.
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To the current, actual knowledge of Seller, Seller warrants that there is not now, and/oF
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.
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.
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,
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 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 orr-
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 an 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,
and the exceptions to title that City has approved.
8.2 Promptly, upon opening of escrow, Escrow Holder shall furnish City with a title
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 wrng 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 •. 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.
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:
A. That the public interest and necessity requires the acquisition of the Property.
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
Wefore such tender, shall not survive tender of the deed.
Except as otherwise provided here -in, this Agreement inures to the benefit of, and is
Winding on, the parties, their respective heirs, personal representatives, successors, and
issIgns.
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writing and signed by all of the parties before� ii will be ;ffective.
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 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.
0303r '�
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.
M.E=
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.
At the sole cost of the City, prior to the start of construction, the Seller shall cooperate
with the City's Third Party Inspection subcontractor to inspect the "MR[" machine, its
maintenance logs and manuals and shall be permitted to consult with the Seller's "MRI"
machine certification consultant. At the sole cost of the City, a "vibration analysis" will be
conducted prior to the start of construction to determine the vibration levels at pre -construction
conditions. Seller shall cooperate with the City's subcontractor to complete the "vibration
analysis" prior to the start of construction to determine the base line level of vibration
generated on a daily basis. If the base line vibration level is exceeded during construction, the
contractor will be notified to construct with a different means and method that does not
generate vibration exceeding the base line level. In a reasonable amount of time to determine
if any damage may arise from the construction of the Project to the "MRI machine" at Seller's
property due to the vibration base level being exceeded, the City may procure a Third Party
Inspector to inspect and evaluate the "MRI machine" for any damages. If the Inspector's
findings concluded that the Project construction did not cause damage to the "MRI machine",
or if the base line level of vibration is not exceeded during construction, it shall be determined
that construction of the Project did not impact and/or damage the "MRI machine", and the City
will have no liability and Seller surrenders claims of any damages to the "MRI machine" that
may arise during construction.
The Project duration is 18 months. Within this 18 months, the City has the right to
sequence the work at the Property. Within the term of the Project, the construction will be
performed at the Property for a period of fourteen (14) days following the City's written Notice
of Intent to Commence Occupancy of the Temporary Construction Easement ("Notice of
Intent)." In the event that there is use by the City of the Temporary Construction Easement
after fourteen (14) days from the Notice of Intent, for the next fifteen (15) calendar days, the
City will pay $2,500 per day for each additional day of use and thereafter, the City will pay
$5,000 for each day of additional use.
IN WITNESS • the parties --• have executed this Agreement the day and year
set forth herinabove.
Name: A"w LAv¢'���
Title:
By:
Name:
Title:
Date:
(Print)
CITY OF DOWNEY-
Datw 00(
Claudia F rometa
Mayor (Print)
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ATTACHMENT f1Pageq "
1 of 5
CITY A
• DOINVEY
• -CITY CLERK
4 i
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the City of Downey and is therefore exempt
from recording rt•
transfer tax pursuant to Rev, & Tax Code
Section 11922"
APN: 6265-002-D22 Space above this line is for Recarder's Use
Agreement o.:
SEEATTACHMENT
EXHIBIT 'W�- LEGAL DESCRIPTION
r
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(12) months from close of escrow of Agreement No. 4776,
Duted: GRANT®
COTTAGE DEVELOPMENT INC.
By:
Its:
Name:
By: w . .. ..
Its: _
Name:
ATTACHMENT "Bill
Page 2 of 5
1414 m 11-11 dw-INORT.-M I
EXHIBIT ALEGAL DLSk'R1?I'l0N
Poilip.on ol'Al"N 6285-W2 02Z
Reel Propuly Bmwatv in the C113. of Do"'ticy, County ol'Up4 AngJc,i, Stoic ul't'nlifumm, p1,:z*O-ibcd rlg
I'swilows,
Being a porlittit ofthe kinds ol'Cutlejr; Duvolopmank Inc, ne dmcritx-,d in thatcmain Gram Dovdroeor&d
0mlo,-r 20, 2011 as Insu-umeni, No. 20 11 142771 9, MON PGTdCUInfly &SCribed WQ roll DW'W
COMMENCING at ih,: cmvdinc iniciamion ot'Ukc)vcwd k3h kil 111d Florence M,c„
llscmc alipfig the ;QnivrWL; id'said I nL-co,(xai 11hed St-411h 21'41'4R" Wczpi, 14157 (p;k-t,
Mmee pcTpondicular to the [list described cuum South TAG1612" East, OUM real to a likkial on the
suotticamMy hw ot'said [Akewoud DI vd, be' also the noill-imioskerit; Qormcr of dry sold likkn(lb ol'top:
Cottage Dindopment Inc. (IftaL tikk. 2()1 1 14,1371 ii), Bald point being Lock the TRUE R)IN I OF
GINNING;
I'limce along said loorltorly huo South kl,'ata, 1 01 fact,
flwnm alang a finciparaflel aikid 1 00 fpAlt SOU1hCaqtC111' OflhC %A1WhCQ9lCdY 111W Of "kLOVIUld Ulk'd
South 23'43'4t;" WLsi, N7,e6 fL--I;
Ibmuc Swoh 52'11147'' bwl, 4,07 fuck,
Thence South 231)Y24" West, 26.2? feet,
Thence Ninth 45`46'15" Wem, 4 28 feet:
"once Wong a line parallel nod 1 00 foot line ofakewond Blvd
Smith 21'43'48" Wvm, 9,7ip rcei io the vottherly line ofptiod llind,:
Twenci: q4mg slid gomhorly line Numb 17156'45" Weal, bill feet to live. RmOcinpierly line ofl-ikkowocid
Blvd.
111enucalonk; said Soullike"al(Tyly line North 11AY48' Ensk, 123 31 FuQl lip lhv POINT OF KEGINNING
coulapirmus no area uf221 &quuiv fc0' mute or losa
As shown on plat lifilached hereto and by Oklik, reference Fn&ade part hereof " Exhibil B,
For: BKV LO,napm:�
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Page 3 of 5
FLORENCE AVE.
TPOG
40 M
TICE S
227 $0. rr-1
LiNg TAK!
INA305 OF BEARINGS
NORTH 23-4FOY EAST, OEING THE cEwrERLINC OF
LAKEWOOD BOULEVARD SHOWN AS Y 23'43'35'E, ON
THAT CERTAIN PARCEL MAP NO. 10943 AS SERIES
pqQ- 79-IRZ3iDj TILED ON IfJLY 20, 1979 IN 3001<
14 OF PARCEL MAPS AT PACE 86
LEGEND
POO ® POINT OF COMMENCEWINT
TCE z TEMPORARY CONSTRUCTION EASEMENT
MOS TRUE P094T OF SECINNINC 20
CENTERUNE
DESCRIBED AREA
LOT LJN1
RECoRn ,.07 kJNF
SUITE 400
is NEWPORT PLALH, CA 92060 jo
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940-U"450
am". BL*Nfm I'view 940-520-8402 (FAX)
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A notary public or other officer completing this certificate verifies only the identity of the individual who
f si
gned the document if not the truthfulness, or 1 of that
document.
State of California
County of
a Dam / i before in e, t of Public
�
Wt7NESS Any hand and official seal,
AFrivWXURIVE itI'N"
1jaw. -gig, N wo MN MUM OJAM.WaKIKS)k Zia
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on behalf of the CITY's Council Members, and the Grantee consents to recordation thereof by its duly
authorized officer.
APN: 6285-002-022
By: