EXCLUSIVE NEGOTIATION AGREEMENT
(514-522 E. Vermont Avenue, Anaheim, California )
EXCLUSIVE NEGOTIATION AGREEMENT (514-522 E. Vermont Avenue ) ("Agreement"), dated for purposes of identification only as December XX, 2024 (the "Date of Agreement"), is entered into by and between the CITY OF ANAHEIM, a municipal corporation and charter city (the "City"), and ANAHEIM EAST VERMONT, LLC, a California limited liability company (the "Seller").
RECITALS
A. The Seller currently owns that certain real property consisting of approximately 6.082 acres (Assessor Parcel No. 234-151-25) (the "Seller Property") and generally located directly south of Vermont Avenue and east of Melrose Street as shown on the Map attached hereto as Exhibit A and incorporated herein by reference. The Seller Property is generally improved with four (4) industrial buildings totaling 87,531 square feet.
B. The Seller Property is adjacent to City -owned property currently used for Public Works operational purposes (the " City Property"). The City Property and the Seller Property are generally depicted on the Map.
C. The Seller and the City desire to execute a Purchase and Sale Agreement ("PSA") which shall provide for the City’s acquisition of the Seller’s Property.
D. The primary purpose of this Agreement is to establish a period during which the Parties shall negotiate the terms of a PSA and to provide access to the City for site investigation.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Section 1. Negotiating Period. The Parties agree to negotiate diligently and in good faith with one another for a period commencing upon the Effective Date of this Agreement (as hereinafter defined in Section 14 and terminating on January 31, 2025 (the "Negotiating Period"), in order to agree upon a mutually acceptable and fully executed PSA .
Accordingly, this Agreement shall automatically terminate upon the earlier to occur of (i) execution of a PSA by the parties, on (ii) January 31, 2025, or (iii) upon termination pursuant to Section 5.2 hereof.
Section 2. Certain Parameters for Negotiations. Subject to final consideration of a PSA and the exercise of sole and absolute discretion, the following nonexclusive list of items related to the PSA shall be the subject of negotiations during the Negotiation Period:
(A) Seller shall provide City a copy of all environmental site assessment records and reports obtained by or prepared for Seller or its agents which pertains to the environmental condition of the Seller Property and its general vicinity including the air. The written reports must describe the scope of work performed in the assessment, the information learned, all recommendations for remediation and further investigation, all government records relating to the pr operty, and all reports from any governmental age ncy setting forth the remediation required.
(B) Determine a fair market value based on an independent MAI appraisal for the Seller Property.
(C) Seller shall also provide to City a copy of any title reports, leases and owner’s disclosure form.
Section 3. "As Is" Condition Seller Property. The Seller Property shall be conveyed to the City "AS IS", meaning that City will be accepting the Seller Property in its present condition, including, but not limited to, the physical condition of the Seller Property and all laws, rules and regulations, whether federal state or local, having or potentially having any impact on ownership, use, subdivision, improvement or other aspects of the Seller Property. The City will assume the full and complete responsibil ity to make all investigations of surface and subsurface conditions as may be necessary or appropriate and to evaluate the suitability of the Seller Pro perty and that based upon the same, City will be relying strictly and solely upon such inspections, examinations, and investigations and the advice and counsel of its own agents, att orneys and consultants. The Seller makes no representations or warranties concerning the Seller Property, its suitability for the use intended by the City, or the surface or subsurface conditions of the Seller Property.
Section 4. Right of Entry.
The Seller hereby grants to City and its employees, agents and contractors (herein referred to collectively as the "City's Designees") the nonexclusive right to enter upon the Seller Property at any time during the Negotiating Period to perform certain work, consisting of, a Phase I Environmental Assessment prepared in compliance with the most recent published American Society for Testing and Materials Phase I Environmental Site Assess ment Standard, a Phase II Environmental Investigation and Report, if required, and other due diligence related activities which City determines are necessary (collectively, the " City' s Work").
Prior to each entry onto the Seller Property, the City (i) shall provide twenty- four (24) hours' notice to the Seller (or his authorized representative), (ii) shall arrange for access, and, (iii) if requested by the Seller, will allow oversight of all on- site activities.
Prior to any entry onto the Seller Property for the taking of environmental samples or testing, the City shall provide the Seller (or his authorized representative) with a work plan for onsite activity, including but not limited to a copy of its sampling and testing procedures and a list of constituents to be analyzed.
Such work plan shall be provided not less than forty- eight (48) hours in advance of any activity contemplated under this Agreement.
The City shall provide to the Seller a copy of all results generated by the sampling and testing performed pursuant to this Agreement. The Seller agrees for itself and on the behalf of the Seller's Designees as follows:
(A) That City will not permit any dangerous condition to be created on the Seller’s Property by City or City's Designees; and
(B) That all acts and things done by the City on the Seller Property will be done in a careful and reasonable manner, in accordance with all federal, state and local laws; and
(C) That City will enter the Seller Property entirely at its own cost, risk and expense; and
(D) That City shall not have any interest in the Seller Property or be entitled to any reimbursement or repayment for any City 's Work performed upon the Seller Property pursuant to this Agreement; and
(E) The City shall take all necessary precautions to prevent the import and/or release into the environment of any hazardous materials which are imported to, in, on or under the Seller Property during the performance of the City 's Work. If hazardous materials are imported onto the Seller Property as a result of the performance of the City's Work, the City shall be solely responsible for removing such imported hazardous materials in conformance with all governmental requirements. The City shall report to the Seller, as soon as possible after each incident, any unusual or potentially important incidents with respect to the environmental condition of the Seller Property; and
(F) Work conducted under this Agreement and shall comply with all statutes, ordinances, rules, regulations, orders and requirements now in effect or that become effective during the term of this Agreement applicable to its sampling and other activities pursuant to the access granted by this Agreement.
City hereby agrees to defend, indemnify and hold the Seller and their respective officers, officials, members, employees, agents and representatives harmless from and against any and all obligations, losses, damages, injuries, liabilities, claims, demands, penalties, investigation costs, or causes of action (including, without limitation, reasonable attorneys' fees, expert witness fees, court costs, and expenses incurred in connection with any of the foregoing) arising from or attributable to the activities of City or any of City's Designees, or in any way connected with the City's or City's Designees' entry or sampling activity upon the Seller Property pursuant to this Agreement. All use of and entry upon the Seller Property shall be at the sole cost, risk and expense of the City . Notwithstanding the foregoing, the City shall not be liable for and this indemnity obligation shall not apply to the mere discovery of an adverse condition on the Seller Property or to property damage or bodily injury occasioned by the sole negligence or willful misconduct of the Seller and their respective officers, employees, or agents. This indemnity shall survive the termination or expiration of this Agreement.
City shall have the right to terminate this Agreement if it is not satisfied with the findings and the recommendations made during City's Work.
Section 5. Effect of this Agreement; Termination.
5.1 Nature of Agreement. This Agreement is not intended to constitute a binding agreement by the Seller or the City to acquire and/or develop all or any portion of the Seller Property, nor is it intended to constitute a binding agreement to enter into a PSA or any other contract. Except as set forth in the PSA, no Party shall be legally bound to consummate the acquisition of all or any portion of the Seller Property until a PSA or other contract has been executed and delivered by the Parties. The Parties recognize that one or more of the conditions to the City's proposal set forth herein may fail to be met as a result of studies, reviews and proceedings involving the exercise of discretion by the City or or department or Council thereof.
Notwithstanding any other provision hereof, neither the Seller nor the City shall be under any obligation to approve or execute any PSA during or upon conclusion of the Negotiating Period.
Any Party may refuse to approve and execute any PSA at its sole and absolute discretion, with or without cause. In the event that a PSA is approved and executed by the Parties, this Agreement shall be superseded, without further action by either Party by such PSA .
Execution of this Agreement by the City is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by the City Council of the City of Anaheim as to any PSA and all proceedings and decisions in connection therewith.
5.2 Termination of this Agreement. City reserves the right to terminate this Agreement, with or without cause, upon ten (10) days prior written notice to the other Party, thereby withdrawing from such negotiations without any liability to the other Party, except that each Party shall be obligat ed to promptly return to the other Party all information and materials which such Party has received from the other Party pursuant to this Agreement. The Parties, by their respective execution hereof, knowingly agree, the only remedy for failure of condition, breach, or default by either party is termination of this Agreement and that neither party shall have any right to damages o r specific performance of this Agreement, nor any other equitable or damage remedies under the law. Each Party makes such release with full knowledge of Civil Code Section 1542 and hereby waive any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
City's Initials______________ __________
Section 6. Notices. Any notices, requests or approvals given under this Agreement from one Party to another shall be personally delivered, transmitted by facsimile (FAX) transmission, or deposited with the United States Postal Service for mailing, postage prepaid, to the address of the other Party as stated in this paragraph, and shall be deemed to have been given at the time of personal delivery or FAX transmission or, if mailed, on the third day following the date of deposit in the course of transmission with the United States Postal Service. Notices shall be sent as follows:
If to City:
With copies to:
If to Seller:
With copies to:
City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765- 4105
Director of Public Works
City of Anaheim
200. S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-5225
City Manager
City of Anaheim
200 S. Anaheim Boulevard, 7th Floor
Anaheim, California 92805
FAX No. (714) 765-5164
City Attorney
200 S. Anaheim Boulevard, 3rd Floor
Anaheim, California 92805
FAX No. (714) 765- 5123
Anaheim East Vermont, LLC
Insert Seller Address
Section 7.
California.
Governing Law. This Agreement shall be governed by the laws of the State of
Section 8. Attorneys' Fees. If any legal action is brought to enforce, construe, interpret or invalidate the terms of this Agreement, the prevailing party shall be entitled to all costs and expenses incurred in any such action, including court costs and reasonable attorneys' fees, in addition to any other relief to which such party may be entitled.
Section 9. Interpretation. This Agreement shall be interpreted as a whole and in accordance with its fair meaning and as if each Party participated equally in its drafting. Captions are for reference
only and are not to be used in construing meaning. The recitals are deemed incorporated into this Agreement.
Section 10 . Real Estate Commissions. Jones Lang LaSalle Brokerage, Inc. (“JLL”) exclusively represents Seller as Seller’s Agent, and Buyer has elected to represent itself. Buyer reserves the right to retain 3rd-party representation at any time and will notify Seller and JLL in the event it elects to do so.
Section 11. Amendment of Agreement. No modification, rescission waiver, release or amendment of any provision of this Agreement shall be made except by a written agreement executed by each of the Parties.
Section 12. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties concerning this subject. This Agreement integrates all of the terms and conditions mentioned herein or incidental thereto, and supersedes all prior negotiations, discussions and previous agreements between the Parties concerning all or any part of the subject matter of this Agreement.
Section 13. Implementation of Agreement. The City shall maintain authority to implement this Agreement through the City Manager or any of City's Designees. The Director shall have the authority, subject to approval by the City Attorney, to issue interpretations, approve submittals hereunder, extend time limits, waive provisions, and/or enter into certain amendments of this Agreement on behalf of the City so long as such actions do not materially or substantially change the uses or development contemplated hereunder, or add to the costs incurred or to be incurred by the City as specified herein, and such interpretations, waivers and/or amendments may include extensions of time to perform. All other material and/or substantive interpretations, waivers or amendments shall require the consideration, action and written consent of the City Council of the City of Anaheim.
Section 14. Effective Date of this Agreement. This Agreement shall take effect immediately upon the approval and execution of this Agreement by the City (the "Effective Date").
[Signatures on next page]
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT ON THE RESPECTIVE DATES SET FORTH BELOW.
"CITY"
CITY OF ANAHEIM,
a municipal corporation and charter city
Dated: _2,024 By: _
Rudy Emami, Public Works Director
ATTEST:
THERESA BASS, CITY CLERK
By: _
APPROVED AS TO FORM:
OFFICE OF CITY ATTORNEY
By: __________________________
153945
"SELLER"
ANAHEIM EAST VERMONT, LLC
a California limited liability company
By: _____________________________
EXHIBIT A
MAP
EXHIBIT A - MAP
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Seller Property
514-522 E.
Vermont Ave
APN: 234-151-25
EXHIBIT A - MAP
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