PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") entered into as of this _ day of September 2023, between Gento 2 LLC, a California Limited Liability Company (hereinafter referred to as "Seller") and the CITY OF BURBANK, a municipal corporation (hereinafter refe rred to as "Buyer"), constitutes both an agreement to purchase and sell real property and escrow instructions directed to Fidelity National Title, located at 4400 MacArthur Blvd. Suite 200, Newport Beach, CA 92660, Attn. Brenna Ryan, ("Escrow Agent") in its capacity as escrow holder, and hereby establishes an escrow ("Escrow") to accommodate the transaction contemplated hereby. The Seller and Buyer are from time to time hereinafter referred to individually as a “party” and collectively as the “parties”.
RECITALS
A. S
eller is the owner in fee simple of that certain real property commonly known as 904 - 906 N. Lake Street, Burbank, California, 91502 (“Property”), which is more particularly described by legal description in Exhibit “A” and by Plat Map shown in Exhibit “B” attached hereto.
B. T
he Buyer desires to purchase the Property, and all rights, benefits, easements, and appurtenances thereto.
AGREEMENT
N
OW, THEREFORE, THE SELLER AND BUYER HEREBY AGREE AS
FOLLOWS:
1. Agreem
ent to Sell and Purchase. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Property, upon the terms and for the consideration set forth in this Agreement. Such purchase and sale of the Property includes:
(a
) all rights, benefits, easements, and appurtenances thereto; (b) any improvements and fixtures located on the Property, including, without limitation, buildings and structures located on the Property, all apparatus, installed equipment and appliances owned by Seller and located on or in and used exclusively in connection with the operation or occupancy of the Property, and all on-site parking; (c) to the extent assignable, any intangible personal property used in the ownership, use, operation or maintenance of the Property, including without limitation: permits, licenses, governmental approvals and other entitlements relating to the Property, plans, specifications and drawings, and other documents related to any right to occupy any of the Property.
ATTACHMENT 1-1
2. Acquisition Price. The total purchase price for the Property shall be the amount of Eight Million Two Hundred Thousand Dollars and No Cents ($8,200,000.00) ("Acquisition Price"), payable to Seller subject to the terms and conditions of this Agreement. The Acquisition Price shall be deemed to include and represent the agreed upon fair market value of the Property under this transaction, and any and all other or further compensation for the Property and all interests therein, including, without limitation, bonus value of any leases or possessory rights in the Property, and severance damages, if any, lost rental income, leasehold interests, attorneys’ fees, goodwill, interest, relocation benefits or assistance, as, and if legally eligible and other claims which Seller, or any person or entity claiming under or through Seller, could or might obtain, claim or recover in any legal proceedings, including, without limitation, a condemnation action.
3. C
ommencement Date. This Agreement shall commence upon approval of the Agreement by the Burbank City Council, and final execution by both parties on the signature lines below (“Commencement Date”). 4 . Deposit. Within three (3) business days after the Commencement Date, Buyer will deposit funds in an amount equal to Four Hundred Thousand Dollars and No Cents ($400,000.00) (“Deposit”) with Escrow Agent. The Deposit and any interest earned thereon shall be applied against the Acquisition Price.
Escrow Agent shall disburse the Deposit with interest to Buyer or Seller, as applicable, in accordance with the terms of this Agreement. If this Agreement is terminated due to either party’s material default and failure to cure, the non- defaulting party shall be entitled to the Deposit and any interest earned thereon without demand, deduction or offset.
5 . Escrow. Within three (3) business days after the Commencement Date, Seller and Buyer will open Escrow with Escrow Agent. This Agreement constitutes the joint escrow instructions of Buyer and Seller, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. Buyer and Seller may furnish to the Escrow Agent any additional escrow instructions in writing which are in conformity with the Agreement and which are mutually satisfactory to Seller and Buyer. The Buyer, through its City Manager, and Seller agree to promptly execute any such escrow instructions consistent with the terms of this Agreement which the Escrow Agent may reasonably request. The Escrow Agent is hereby empowered to act under this Agreement and shall carry out i ts duties as Escrow Agent hereunder. The City Manager has administrative authority on behalf of the Buyer to make amendments to this Agreement, other than increasing the Acquisition Price or changing the Property (including changes to the purchase and sale description in Section 1, above).
6 . Close of Escrow. The Escrow shall close upon the occurrence of the following actions:
(a
) Deposit of a fully executed and acknowledged grant deed by the Seller conveying the Property, and all rights, benefits, easements ATTACHMENT 1-2
and appurtenances thereto (“Grant Deed”) in the form attached hereto as Exhibit “C”;
(b
) Deposit of the Acquisition Price by Buyer, after deducting both the Deposit plus any interest accrued thereon, all credits under this Agreement, and as adjusted by the costs, expenses and
prorations set forth in this Agreement;
(c
) Issuance of the policy of title insurance described in Section 14, below;
(
d) Possession of the property shall be transferred to Buyer within three (3) days of the Close of Escrow and Seller shall provide keys, passwords, codes and/or means to operate all locks, mailboxes, security systems, alarms, automation systems, and intranet and Internet-connected devices included in the Acquisition Price.
N
otwithstanding the foregoing, Escrow shall close (the “Closing”) on or prior to October 27, 2023, (“Closing Date”), unless extended by mutual agreement of the Seller and Buyer. The City Manager or his designee, may approve reasonable extensions on behalf of the Buyer. Buyer shall deposit the Acquisition Price into Escrow at least one business day prior to the scheduled Closing Date and the Closing shall be conducted in a mutually acceptable manner in accordance with the customs of Los Angeles County in light of Seller’s existing mortgage loan secured by the Property.
7 . Expenses of Escrow. Except as otherwise provided herein, Buyer and Seller shall split (50%/50%) all Escrow Agent fees, charges and costs connected with the Escrow, including, but not limited to, the Escrow fees, recording fees and notary fees. Seller is responsible for the payment of any documentary transfer taxes or fees. Any costs of o btaining reconveyances under encumbrances or removing clouds on the title, and recording fees in connection therewith, shall be borne by Seller. If escrow fails to close, and there is no event of default by either Buyer or Seller, then Buyer and Seller are responsible for their own costs and expenses incurred in connection with Escrow and this transaction. 8 . Condition of Title, Property Inspection, other Conditions to Close Escrow. It shall be a condition to the Close of Escrow for Buyer's benefit and a covenant of Seller that the Property be conveyed to Buyer by Seller by Grant Deed in accordance with this Section.
O
n or before opening of Escrow, Escrow Agent will procur e and provide a preliminary title report and all legible copies of the documents of record creating exceptions disclosed in the Preliminary Title Report (collectively, “Title Report”) issued by Fidelity National Title located at 4400 MacArthur Blvd. Suite 200, Newport Beach, CA 92660 (“Title Company”) to Buyer, disclosing the condition of the title to the Property. The Title Report shall be prepared in connection with a CLTA Owner’s Title Insurance Policy, which cost shall be at the Seller’s expense. Buyer shall pay the difference incurred for the purchase of an ALTA Owner's Title Insurance Policy if so ATTACHMENT 1-3
desired by Buyer, which Escrow Agent shall cause to be prepared and delivered. Any specific endorsements required by Buyer shall be paid for by Buyer.
Buyer will complete its review of the Title Report and, in its sole discretion disapprove by notice delivered to Seller and Escrow Agent, any exceptions to title, on or before October 3, 2023. If Buyer does not disapprove of any such exceptions shown on the Title Report on or before October 3, 2023, Buyer shall be deemed to have approved the Title Report. The exceptions approved by Buyer are referred to herein as the “Permitted Title Exceptions.” Seller, at its option, shall have five (5) business days from receipt of Buyer’s written disapproval notice to remove any exceptions to title to which Buyer objects. If the objectionable exceptions are not removed, within the stated time, on or before October 14, 2023, (“Due Diligence Date”) Buyer may elect to waive such objections, or, upon agreement with Seller, extend Seller’s removal period for objectionable exceptions (including but not limited to, allowing any monetary exceptions to be removed upon the Closing by payment through Escrow).
Alternatively, Buyer in its sole discretion may elect to terminate this Agreement and all its obligations hereunder shall cease.
If any monetary lien that can be removed by the payment of a liquidated sum of money appear on title after Buyer receives the Title Report and before Close of Escrow, Seller shall cause such lien to be paid, discharged, or removed of record or provide a release of the lien as a condition of Closing. If Seller is unable to do so, Seller shall be entitled to reasonable extensions of the Closing one or more times for a period not to exceed thirty (30) days in the aggregate.
9. Inspection of Property
. Property inspections shall be completed on or
before the Due Diligence Date. During the term of this Agreement, Seller shall allow the Buyer and its representatives and designees access to the Property as necessary for inspection thereof; and to conduct all due diligence activities listed below. In addition, at any time prior to the Due Diligence Date, Buyer and its representatives and designees shall have the right of access to the Property during normal business hours upon no less than three (3) business days’ advance notice to Seller to make such investigations, studies and tests including surveys and engineering studies as Buyer deems necessary or advisable (in Buyer’s sole and absolute discretion), provided; however, that Buyer shall not be permitted to conduct invasive testing without Seller’s prior written consent, which consent may be withheld or delayed. The cost of any such inspections, tests and studies shall be borne by Buyer. Buyer shall repair any damage to the Property caused by Buyer’s inspections and tests, but under no circumstances shall Buyer be responsible for any preexisting conditions on or relating to the Property, or any negligence or willful misconduct of Seller or any of its respective representatives, agents, employees, contractors or tenants. If Buyer disapproves the conditions of the Property, or the results of any investigations, studies and/or tests conducted by Buyer (which Buyer may approve or disapprove in its sole and absolute discretion, for any reason or for no reason), Buyer may terminate this Agreement on or before the Due Diligence Date by written notice to Seller, in which event the Deposit (less its portion of escrow costs) shall be immediately returned to Buyer without the need for any further instruction and notwithstanding any contrary instruction from Seller, and all obligations of Buyer and Seller shall be null and void except for those matters expressly set forth herein to survive termination. The failure of Buyer to ATTACHMENT 1-4
terminate this Agreement on or before the Due Diligence Date shall be deemed an election by Buyer not to terminate this Agreement pursuant to this Section, in which case the Deposit shall become nonrefundable to Buyer except as expressly set forth in this Agreement.
Buyer has the right to conduct the following due diligence activities:
(a) Hazard Materials, Asbestos and Physical Assessments Report(s) at the Buyer’s expense
(b) Valuation and appraisal at the Buyer’s expense
(c) Visual Inspection conducted by the City Building Inspector and/or his designee.
(d) Visual Inspection conducted by the City Fire Inspector and/or his designee.
9.1 To the extent that the information is in
Seller's possession,
Seller agrees to provide Buyer with the following documents within five (5) days after the Commencement Date, which shall comprise Seller's “Due Diligence Materials”: copies of all existing environmental and physical condition reports and notices readily available to Seller and any other non-privileged and non-proprietary documents in Seller’s possession, which are material to the condition of the Property.
Seller makes no representations or warranties as to the completeness and accuracy of the Due Diligence Materials; and Buyer agrees that any reliance on the Due Diligence Materials is in conjunction with Buyer’s own tests, studies, and investigations in determining whether or not to purchase the Property.
9.2 As of the Close of Escrow, there shall have been (I) no material adverse change in the condition of the Property from that which was known to Buyer as of the Due Diligence Date, and (II) no material adverse change in any applicable law or other governmental requirement, relating to the development of any portion of the Property which was effective as of the Due Diligence Date, and (III) no material adverse change or modification in, and no appeal or repeal or breach of, any governmental approval, consent, agreement or contractual obligation relating to the Property or any portion thereof from that which was known to Buyer as of the Due Diligence Date.
9.3 If each of the conditions set forth in Sections 6, 8, and 9 are timely satisfied, then Buyer shall be obligated to proceed with the Close of Escrow subject to the terms and conditions of this Agreement. If any of the foregoing conditions set forth in Sections 6, 8, and 9 are not timely satisfied or waived in writing by Buyer in Buyer’s sole and absolute discretion then, upon written notice delivered by Buyer (in Buyer’s sole and absolute discretion), but without limiting Section 17, this Agreement shall terminate and the Deposit and any interest earned thereon shall be immediately
returned to Buyer, notwithstanding any contrary instruction by Seller, and (i) each party shall execute such documents as Escrow Agent may reasonably require to evidence such termination, (ii) Escrow Agent shall return all documents to the party who deposited them, (iii) Escrow Agent shall charge its fees and expenses to Buyer (provided that if the Close of Escrow does not occur as a result of the default of either Buyer or Seller, the defaulting party shall pay all of the charges and costs in connection ATTACHMENT 1-5
with the Escrow, including without limitation the amount of any cancellation charges), (iv) unless this Agreement is terminated for a Seller default or breach of representation, warranty or covenant, Buyer shall return to Seller all documents delivered to it by Seller relating to the Property, and (v) subject to Section 17, all obligations of either party relating to this Agreement and the Property shall terminate except for those obligations that expressly survive a termination of this Agreement.
10. Seller Representations and Warranties
. Seller hereby represents
and warrants for the benefit of Buyer that the following facts are true, in each case to the best of Seller’s knowledge and belief as of the date of this Agreement, and that Seller will take no voluntary action to cause such facts to become untrue in any material respect from the date of this Agreement to the date of the Close of Escrow:
(a) Seller now has and will have at the Close of Escrow good and indefeasible title in fee simple to the Property and no party, except as herein set forth, has or will have any right in or to acquire, the Property;
(b) Seller has the legal power, right and authority to enter into this Agreement and all of the other agreements and documents specified herein, and to consummate the transactions contemplated hereby;
(c) At the Closing, the Property will be free and clear of all encumbrances except any encumbrances permitted by Buyer; Seller covenants and agrees, at Seller’s sole cost and expense, to obtain releases, at or prior to the Closing, for any and all liens affecting the Property as of the date of Closing;
(d) There are, and at the Close of Escrow there will be, no pending actions, suits, arbitrations, claims or proceedings, at law, in equity or otherwise, affecting, or which may affect, all or any portion of the Property of which Seller is aware (or should be) or in which Seller is or will be a party by reason of Seller’s ownership of the Property, including, but not limited to, judicial, municipal or administrative proceedings in collection actions, federal, state or local authority actions regarding environmental matters, or personal injury; Seller to
certify that there is no pending retrofit work, no unpermitted construction, no outstanding permits and that all building permits have been finalized, other than those disclosed under the Property information sheet previously provided to Buyer which addresses non permitted work within the premises, Interior Steel Columns and Beams.
(e) Seller has not received any notices from any insurance company of any defects or inadequacies in the Property or any part thereof, which would materially and adversely affect the insurability of the Property or the premiums for the insurance thereof, and no notice has been given by any insurance company, which has issued a policy with respect to any portion of the Property or by any board of fire ATTACHMENT 1-6
underwriters (or other body exercising similar functions) requesting the performance of any repairs, alterations, or other work which has not been complied with;
(f) If the Property is used as security for a deed of trust or other mortgage, any such deed of trust or mortgage shall be reconveyed on or prior to the Close of Escrow.
(g
) Before the Closing, Seller shall maintain the Property (“Maintenance Duties”) in a manner consistent with reasonable area maintenance Best Practices.
(h
) Seller is not in material default under the terms of any lease agreement, loan agreement or deed of trust, or a ny other agreement pertaining to the Property, nor has any event occurred that will constitute a default under such documents or instruments following the passage of time;
(i
) No uncured breach or default, whether declared or not, including, without limitation, nonpayment of any sum or nonperformance of any obligation, exists under, or with regard to, any obligation of Seller that is secured by a lien on the Property;
(j
) Seller has not received any notice that the location, construction, occupancy, operation, and/or use of the Property violates, in any material respect, any applicable law, statute, ordinance, rule, regulation, order, or determination of any governmental authority or any board of fire underwriters (or other body exercising similar functions), or any restrictive covenant or deed restriction (recorded or otherwise) affecting the Property, including, without limitation, all applicable zoning ordinances and building codes, flood disaster laws, and health and environmental laws and regulations.
(k
) Seller further represents
(1) the Property has never been used by Seller, or, to the best of Seller’s knowledge, Seller’s tenants, to generate, manufacture, refine, transport, treat, store, handle or dispose of any Hazardous Substances (as hereinafter
defined) in violation of any Environmental Laws, and Seller has not received any written notice that any Hazardous
Substances currently exist in, on, or under the Property in violation of any Environmental Laws and Seller has not
received any written notice that any prior owner of the Property generated, manufactured, refined, transported, treated, stored, handled or disposed of any Hazardous
Substances (as hereinafter defined) in violation of any Environmental Laws. All previous uses have been identified in the Phase 1 and Phase 2 Environmental Site
ATTACHMENT 1-7
Assessments provided by Seller to Buyer which represents all knowledge by Seller concerning environmental matters.
(2) The term “Hazardous Substances” as used in this
Agreement shall mean any hazardous or toxic material,
substance, or waste, pollutant or contaminant which is
regulated under any statute, law, regulation, rule or
ordinance of any local, state, regional, or federal authority having jurisdiction over the Property, or its use, including, but not limited to, any material, substance or waste which is (i) defined as a hazardous substance under any Environmental Laws; (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products; (iii)
polychlorinated biphenyls; (iv) lead; (v) urea formaldehyde; (vi) asbestos; (vii) flammable explosives; (viii) infectious materials; (ix) radioactive materials; or (x) defined or regulated as a hazardous substance under rules or
regulations promulgated under any of the foregoing
Environmental Laws.
(3) The term “Environmental Laws” as used in this
Agreement shall mean any federal, state, or local statute, law, regulation, order, consent, decree, judgment, permit, license, code, covenant, deed restriction, common law,
treaty, convention, ordinance, or other requirement relating to public health, safety or the environment, including, without limitation, those relating to releases, discharges or emissions to air, water, land or groundwater, to the
withdrawal or use of groundwater, to the use and handling of polychlorinated biphenyls or asbestos, to the disposal, treatment, storage or management of hazardous or solid
waste, or Hazardous Substances or crude oil, or any
fraction thereof, or to exposure to toxic or hazardous
materials, to the handling, transportation, discharge or release of gaseous or liquid Hazardous Substances and
any regulation, order, notice or demand issued pursuant to such law, statute or ordinance, in each case applicable to the Property, including, without limitation, the following: the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund
Amendments and Re-Authorization Act of 1986; the Solid
Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984; the Hazardous
Materials Transportation Act, as amended; the Federal
Water Pollution Control Act, as amended by the Clean
Water Act of 1976; the Safe Drinking Water Act; the Clean Air Act, as amended; the Toxic Substances Control Act of 1976; the Occupational Safety and Health Act of 1977, as ATTACHMENT 1-8
amended; the Emergency Planning and Community Right-
to-Know Act of 1986; the National Environmental Policy Act of 1975; the Oil Pollution Act of 1990, and any similar or implementing state law, and any state statute and any
further amendments to these laws providing for financial responsibility for clean-up or other actions with respect to the release or threatened release of Hazardous Substances or crude oil, or any fraction thereof and all rules and regulations promulgated thereunder.
(4) Seller has not obtained, and is not required to obtain, and Seller has no knowledge of any reason Buyer or Seller will be required to obtain, any permits, licenses, or similar authorizations to construct, occupy, operate, or use any buildings, improvements, fixtures, and equipment forming a part of the Property by reason of any Environmental Laws.
(5) No notice of violation, lien, complaint, suit order or other notice with respect to the environmental condition of the Property is outstanding, nor has any such notice been
issued which has not been fully satisfied and complied with in a timely fashion so as to bring the Property into full compliance with all Environmental Laws.
(l) Except as specifically provided herein, during the term of this Agreement, Seller will not, without the prior written consent of Buyer, enter into any new maintenance or service contract affecting the Property, which cannot be terminated on notice of thirty (30) days or less, or subject the Property to any new mortgage, deed of trust, lien, encumbrance, claim, charge, equity, covenant, condition, restriction, easement, right-of-way or other similar matter affecting the Property;
(m)Seller affirms that there are no existing leases, including any warranties and estoppel certificates, currently in Seller’s possession, and will provide a complete inventory of all personal property of Seller within ten (10) days after approval of this Agreement;
(n) Seller will not, without the prior written consent of Buyer, enter into any new lease agreements affecting the Property;
(o) The Improvements on the Property contain no latent (excluding visible obvious visible defects) physical or structural defects actually known by Seller which have not been disclosed. The term “Improvements” includes without limitation, all walkways, curbs, landscaping, and other related improvements .
The representations and warranties of Seller set forth in this Section survive the Close of Escrow and shall be deemed to be remade and restated by Seller on and as ATTACHMENT 1-9
of the Close of Escrow. The representations and warranties made in this section shall last for one year or for as long as a valid claim can be made relating to these representations and warranties, whichever is longer.
1 1. Buyer Representations and Warranties. Buyer represents and warrants that this Agreement and all other documents delivered by Buyer prior to or on the Close of Escrow, (i) have been or will be authorized, executed, and delivered by Buyer; (ii) are binding obligations of Buyer; and (iii) do not violate the provisions of any agreement to which Buyer is a party. Buyer further represents that Buyer is a duly organized municipal corporation existing under the laws of the State of California, with its principal place of business in the City of Burbank, State of California. 1 2. Indemnification.
(a
) As a matter to which Escrow Agent need not be concerned, Seller as a result of failing to disclose matters to which Seller had actual knowledge of, hereby agrees to indemnify and hold Buyer harmless from and against any and all claims, demands, liabilities, liens, costs, expenses, penalties, damages and losses, including and without limitation reasonable attorney's fees and costs offered by the Buyer as a direct or indirect result of:
(i
) Any misrepresentation, breach of warranty or breach of covenant made by Seller in this Agreement and actually known by Seller or any document, certificate, disclosure or exhibit given or delivered to Buyer pursuant to or in connection with this Agreement (collectively, “Seller’s Representations”). (b
) Seller hereby agrees to assume the burden and expense of defending all suits, administrative proceedings and disputes of any description with all persons, entities, political subdivisions or government agencies arising out of the matters to be indemnified by Seller under this Agreement. Seller shall pay, promptly upon entry, any nonappealable order, judgment or other final resolution of any claim or dispute arising out of the matters to be indemnified under this Agreement and shall pay promptly when due any fines, penalties or agreed settlements arising out of the matters to be indemnified under this Agreement.
1 3. Notices from Buyer. Buyer shall promptly, after obtaining knowledge thereof, advise Seller in writing of Buyer’s receipt of any written: (a) notice of any governmental or regulatory actions instituted or threatened in writing under any Environmental Laws affecting the Property or any indemnification hereunder including, without limitation, any notice of inspection, abatement or noncompliance arising out of any activity prior to the Close of Escrow; (b) all claims made or threatened in writing by any third party against Seller or the Property relating to any Hazardous Substances or a violation of Environmental Laws arising out of any activity prior to the Close of Escrow, and (c) Buyer’s discovery of any occurrence or condition on the Property which could subject Buyer or the Property to a claim under any Environmental Law or to any restrictions on ownership, occupancy, transferability or use of the Property under any Environmental Law arising out of any activity prior to the Close of Escrow.
ATTACHMENT 1-10
14 . Title Insurance. At the Close of Escrow, the Escrow Agent shall be irrevocably committed to issue at Seller's cost a CLTA Owner's Title Insurance Policy in the full amount of the Acquisition Price, insuring fee simple title to the Property as being vested solely and exclusively in the Buyer upon the Close of Escrow, subject only to (i) the Permitted Title Exceptions, and (ii) Escrow Agent's Standard pre-printed CLTA Exceptions in the policy jacket issued with all of Escrow Agent’s CLTA policies (“Title Policy”). Buyer may request an ALTA Owner's Title Insurance Policy or Extended Coverages, with Seller paying that amount which would have been required for a CLTA Owner's Title Insurance Policy, and Buyer paying the difference.
15. Apportioned Cost. The following are to be apportioned as of the Closing Date and the applicable adjustment(s) shall be made to the Acquisition Price delivered to Seller:
(a) Utility Charges. To the extent Seller is responsible for utility charges, the parties shall arrange for utility services to be billed to Seller up to the Close of Escrow and to Buyer from and after the Closing.
16. Real Estate Taxes and Special Assessments. Escrow Agent will prorate between the Parties, at the Close of Escrow, any general and special real estate taxes and assessments as of the Closing Date. General and special real estate taxes and assessments payable for all tax years (or portions thereof) prior to the Closing Date, and any supplemental tax assessments relating to the period prior to the Closing, will be paid by Seller. As necessary, general and special real estate taxes and assessments payable for all tax years (or portions thereof) after the Closing Date, and any supplemental tax assessments relating to the period after the Closing, will be paid by Buyer as applicable.
17. Right of Termination by Buyer Prior to Conveyance. In the event that the Seller does not tender conveyance of title to the Property in the manner, condition and time provided in this Agreement, Seller shall use its best efforts to do so as promptly as possible, and if any such failure is not cured within ten (10) days after written demand by the Buyer, then Buyer, in its sole and absolute discretion, shall have the right to terminate this Agreement by written notice to the Seller, in which case the Deposit (and any interest thereon) shall be immediately returned to Buyer without the need for further instruction and notwithstanding any contrary instruction by Seller. This remedy shall be in addition to any and all rights or remedies Buyer may have under this Agreement, at law or in equity upon Seller’s breach of its obligations hereunder, including but not limited to specific performance.
18. Right of Termination by Seller Prior to Conveyance. In the event that Buyer does not complete the conditions to close escrow and take title to the Property under tender or conveyance by Seller within the time provided in this Agreement, and any such failure is not cured within ten (10) days after written demand by the Seller, then this Agreement may, at the option of Seller, be terminated by written notice thereof to Buyer. In such event, the deposit shall be returned to Buyer (unless otherwise provided in this ATTACHMENT 1-11
Agreement) and the parties shall have no further recourse against each other under this A greement.
In the event that all of the conditions to Buyer’s obligations to acquire the Property have been satisfied or waived by Buyer in writing in its sole and absolute discretion, and the Buyer does not pay the Acquisition Price and take title to the Property under tender or conveyance by the Seller within the time provided in this Agreement, and any such failure is not cured within ten (10) days after written demand by the Seller, or, in the event such case cannot reasonably be cured within such ten (10) day period, commence such cure within ten (10) days after such written demand, then this Agreement may, at the option of the Seller, be terminated by written notice thereof to the Buyer. In the event of any other failure of Buyer to perform its obligations under this Agreement, Buyer shall not be deemed in default hereunder until five (5) days after Buyer’s receipt of a written notice from Seller.
IN THE EVENT THE CLOSE OF ESCROW AND THE CONSUMMATION OF THE
TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN
PROVIDED BY ANY REASON OF A MATERIAL DEFAULT OF BUYER UNDER THIS AGREEMENT BEYOND TEN (10) DAYS AFTER WRITTEN DEMAND BY SELLER,
BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER DO HEREBY AGREE THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER
WOULD SUFFER IN THE EVENT THAT BUYER SO MATERIALLY DEFAULTS AND
FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS SELLER’S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN
EQUITY), AN AMOUNT EQUAL TO THE DEPOSIT (AND WITHOUT LIMITATION, IN
NO EVENT SHALL BUYER HAVE ANY LIABILITY FOR SPECULATIVE, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES, AND THE PROVISIONS OF THIS
PARENTHETICAL SHALL SURVIVE THE CLOSE OF ESCROW AND THE EXECUTION AND DELIVERY OF THE GRANT DEED). SAID AMOUNT SHALL BE
THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE DEFAULT OF THIS
AGREEMENT BY BUYER BEYOND NOTICE AND CURE, ALL OTHER CLAIMS TO
DAMAGES OR OTHER REMEDIES BEING HEREIN EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON A MATERIAL
DEFAULT OF BUYER UNDER THIS AGREEMENT BEYOND ANY APPLICABLE
NOTICE AND CURE PERIOD AND TERMINATION OF THIS AGREEMENT AS A
RESULT THEREOF, THE DEPOSIT SHALL BE IMMEDIATELY RELEASED TO
SELLER WITHOUT THE NEED FOR ANY FURTHER INSTRUCTION AND
NOTWITHSTANDING ANY CONTRARY INSTRUCTION BY BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, ATTACHMENT 1-12
EACH TO THE OTHER, EXCEPT FOR ANY SUCH RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW AGENT.
___________________ __________________
Buyer's Initials Seller's Initials
19. Notices and Communications Between the Parties. Formal notices, demands and communications between the Seller and the Buyer must be in writing and shall be deemed to have been properly given (i) if by email, on the day of transmission so long as confirmation of such transmission is received before 5:00 p.m., Los Angeles, CA time on a day that is not a Saturday, Sunday, State or Federal legal holiday (and if transmitted after 5:00 p.m., Los Angeles, CA time, on the following business day) and a copy is also mailed, (ii) if by personal service, on the date of delivery, or (iii) if by delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, on the first business day after delivered to such delivery service, in each case addressed to the address of the party as set forth below, or at any other address as that party may later designate by Notice:
Seller: Gento 2 LLC
11915 Wicks Street
Sun Valley, CA 91352-1908
Buyer: City of Burbank
275 East Olive Avenue
Burbank, California 91502
Attention: Simone McFarland, Assistant Com munity
Development Director
[email protected]
With copies to Escrow: Fidelity National Title
4400 MacArthur Blvd.
Suite 200,
Newport Beach, CA 92660
Attn. Brenna Ryan Escrow Officer
Written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time-to-time designate.
20. Conflic ts of Interest. Seller hereby represents that no member, official or employee of Buyer shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee of Buyer participate in ATTACHMENT 1-13
any decision relating to this Agreement which affects his or her personal interest or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
21. Assignment . Seller shall not assign, transfer, or convey their rights and/or obligations under this Agreement and/or with respect to the Property without the prior written consent of Buyer, which consent Buyer may withhold in its sole and absolute discretion. Any permitted assignments shall not relieve the assigning party from its liability under this Agreement.
Buyer shall not assign, transfer, or convey their rights and/or obligations under this Agreement and/or with respect to the Property without the prior written consent of Seller, which consent Seller may withhold in its sole and absolute discretion.
However, Buyer is permitted to assign the Agreement to an entity controlled by the Buyer.
22. Bindi ng on Successors. Subject to the provisions of this Agreement, the terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto.
23. Brokers' Comm ission. Seller and Buyer warrants to each other they have not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. In the event that Seller or Buyer utilized a broker or real estate agent, or other similar agent, that party which hired the broker (“Broker Party”) has the sole obligation to pay the broker or real estate agent whatever fee is due and owed. If any claims for broker’s or finder’s fees for the consummation of this Agreement arises, the Broker Party shall indemnify, save harmless and defend t he other party from and against such claims.
24. N on-Foreign Certification. Seller shall execute a certification under penalty of perjury in the form of and upon the terms set forth in Exhibit “D”, attached hereto and incorporated herein by reference, setting forth the party's address and certifying that each is not a "foreign person" in accordance with and/or for the purpose of the provisions of Section 1445 (as may be amended) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder, and a State of California Form 597.
25. D istribution of Funds and Documents by Escrow Agent.
(a) All d isbursements by Escrow Agent shall be made by wire- transfer to accounts designated by Seller in same-day funds or by check hand delivered to Seller by same day messenger.
(b) At the Close of Escrow, Escrow Agent will pay (from funds to which Seller shall be entitled and from funds, if any, deposited by Seller with Escrow Agent), to the obligees thereof, to remove all liens and encumbrances on the Property required to be removed pursuant to this Agreement .
ATTACHMENT 1-14
(c) Escr ow Agent will cause the County Recorder of Los Angeles County to mail the Grant Deed (and each and every o ther document which is herein expressed to be, or by general usage is, recorded) after recordation, to the grantee, beneficiary or person (a) acquiring rights under the said document, or (b) for whose benefit the said document was acquired.
(d)
Escrow Agent will, at the Close of Escrow, de liver by United States mail (or will hold for personal pickup, if requested) each non-recorded document received hereunder by Escrow Agent, to the payee or persons (1) acquiring rights under the said document, or (2) for those whose benefit the said document was acquired.
26. Exte nt of Escrow Agent's Responsibilities.
(a)
Escrow Agent shall have no obligation to inform any party of any other transaction or of facts within Escrow Agent's knowledge, unless the same concerns the Property, or any such m atters prevent Escrow Agent's compliance with this Agreement.
(b)
Escrow Agent shall not be responsible for (i) the sufficiency or correctness as to the form or the validity of any document deposited with Escrow Agent, (ii) the manner of execution of any such deposited document, unless such execution occurs in Escrow Agent's premises and under its supervision, or (iii) the identity, authority or rights of any person executing any document deposited with Escrow Agent.
(
c)
Recordation of any instruments delivered through the Escrow, if necessary or proper in the issuance of the Title Policy, is authorized. No examination or insurance as to the amount or payment of personal property taxes is required.
27. General Provisions.
(a
) The title and headings of the sections in this Agreement are intended solely for reference and do not modify, explain, or construe any provision of this Agreement. All references to sections, recitals, and the preamble shall, unless otherwise stated, refer to the sections, recitals, and preamble of this Agreement. In construing this Agreement, the singular form shall include the plural and vice versa.
This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared the agreement.
(b
) This Agreement, all attached exhibits, and all related documents referred to in this Agreement, constitute the entire agreement between the parties. There are no oral agreements, which are not expressly set forth in this Agreement and the related documents being executed in connection with this Agreement. This Agreement may not be modified, amended, or otherwise changed except by a writing executed by each ATTACHMENT 1-15
of the parties hereto. The City Manager is provided with authority to make modifications (except as outlined in Section 5), subject to the approval of the City Attorney, including but not limited to time extensions.
(c
) Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties and their respective successors and assigns, any rights or remedies.
(d
) If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall not be affected.
28. Time of Essence . Time is of the essence in the performance of this Agreement and each and every term, condition, obligation, and provision thereof.
29. Exhibits. The Exhibi ts attached hereto are hereby incorporated herein by this reference for all purposes.
30. Waiver . The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof.
31. G overning Law. The terms of this Agreement shall be interpreted according to the laws of the State of California. The Parties agree and consent to the jurisdiction of the state and federal courts of competent jurisdiction in the County of Los Angeles, California or in the United States District Court for the Central District of California if jurisdiction may be established in federal court.
3 2. Survival. The provisions of Section 12 (Indemnification) shall survive the termination or expiration of this Agreement.
3 3 . Counterpart Signatures. This Agreement may be executed by each party in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one binding document.
ATTACHMENT 1-16
IN WITNESS WHEREOF, Seller and Buyer have executed this Purchase and Sale Agreement and Escrow Instructions as of the dates set forth below. “SEL
LER”
G
ento 2 LLC
DATED: B
y: _________________________________
Name: Norman Celik
Title:
“B
UYER”
C
ITY OF BURBANK, a municipal corporation
DATED: By: _________________________________
Justin Hess
C
ity Manager
Att
est:
___
_______________________________
Kimberly Clark, City Clerk
App
roved as to Form
Office of the City Attorney
By:
Lisa Kurihara, Senior Assistant City Attorney
ATTACHMENT 1-17
LIST OF EXHIBITS
E
xhibit A - Legal Description
Exhibit B - Map
Exhibit C - Form of Grant Deed
E
xhibit D - Non-Foreign Certification
ATTACHMENT 1-18
LEGAL\49620871\2
EXHIBIT A
LEGA
L DESCRIPTION
ATTACHMENT 1-19
EXHIBIT B
P
LAT MAP OF PROPERTY
APN
2449-031-018
ATTACHMENT 1-20
EXHIBIT C
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Burbank
P. O. Box 6459
Burbank, California 91510
______________________________________________________________________ Space Above This Line for Recorder's Use
The undersigned declares that this document is recorded at the request of and for the benefit of the City of Burbank and therefore is exempt from the payment of the recording fee pursuant to Government Code § 6103 and § 27383 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code § 11922.
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S)
DOCUMENTARY TRANSFER TAX is $ 0.00
( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens of encumbrances remaining at time of sale. ( ) Unincorporated area (X) City of Burbank
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged GENTO 2 LLC hereby GRANTS to the CITY OF BURBANK, a municipal corporation, the following described real property in the City of Burbank, County of Los Angeles, State of California:
Please see the Legal Description as Exhibit A and the Plat Map as Exhibit B, attached and made a part hereof.
ALSO KNOWN AS: 904-
906 N. Lake Street, Burbank, California, 91502
Assessor's Identification Number: 2449-031-018
ATTACHMENT 1-21
“GRANTOR”
Gento 2 LLC , by __________________
DATED: By: _________________________________
Name:
Title:
DATED: By: _________________________________
Name:
Title:
ATTACHMENT 1-22
LEGAL\49620871\2
GRANT DEED
A
pproved as to description ___________________________ , 2023 ______________________________________
C
ity Engineer, City of Burbank
A
pproved as to form _________________________________ , 2023 ______________________________________
C
ity Attorney, City of Burbank
I
certify that this document covers City Business within the meaning of Section 6103 of the Government Code.
______________________________________
C
ity Clerk, City of Burbank
ATTACHMENT 1-23
LEGAL\49620871\2
EXHIBIT D
Non-foreign Certification
ATTACHMENT 1-24