SECOND AMENDMENT TO
CONTINGENT AGREEMENT TO PURCHASE AND SELL
REAL ESTATE AND ESCROW INSTRUCTIONS
(Washington & Telegraph)
THIS SECOND AMENDMENT TO CONTINGENT AGREEMENT TO PURCHASE AND SELL REAL ESTATE AND ESCROW INSTRUCTIONS (this "Second Amendment") is entered into as of _ 2023 by and between THE CITY OF COMMERCE, a public entity ("Seller" or "City"); WASH-TEL COMMERCE, LLC, a California limited liability company (Wash-Tel Buyer") and CITADEL HOLDINGS GROUP, LLC, a Delaware limited liability company (CRC Buyer"), successor-in-interest to Craig Realty Group Citadel, LLC. The Wash-Tel Buyer and the CRC Buyer are sometimes collectively referred to herein as the "Buyers".
RECITALS
A. The Successor Agency to the Commerce Community Development Commission ("Agency") and Buyers entered into that certain Contingent Agreement to Purchase and Sell Real Estate and Escrow Instructions dated May 2017 ("Original Purchase Agreement"), pursuant to which Agency agreed to sell and Buyers agreed to buy certain real property in the City of Commerce, California ("Land"'), together with other forms of property (collectively referred to as "Property"), as more particularly described in the Original Purchase Agreement.
On May 19, 2014, the Department of Finance ("DOF") approved the Agency's Long Range Property Management Plan ("LRPMP"), thereby approving the Agency's proposed use or disposition of all the properties listed on the LRPMP; and C. The Original Purchase Agreement was approved by the Oversight Board on March 28, 2018, and was not required to be approved by the Department of Finance as the transaction was consistent with the Long Range Property Management Plan.
D. On or about August 6, 2018, Agency and Buyers entered into the First Amendment to Contingent Agreement to Purchase and Sell Real Estate and Escrow Instructions ("First Amendment") which, among other things reserved approximately 1.8 acres of the Property to the Agency and adjusted the Purchase Price accordingly. The Original Purchase Agreement as amended by the First Amendment are hereinafter referred to as the "Amended Purchase Agreement".
E. Agency and Seller entered into that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated May 23, 2018 ("City Purchase Agreement"), pursuant to which Agency agreed to sell and Seller agreed to buy the Property. The transfer of the Property from Agency to City was approved by the Oversight Board on May 30, 2018, and the Department of Finance issued a no action letter (tacit approval) on July 18, 2018. The Agency conveyed the Property to Seller by Grant Deed recorded August 1, 2019 as Instrument Number 20190765076 of Los Angeles County Official Records. As a part of the City Purchase Agreement, the City of Commerce was to assume the obligations of the Agency as referenced in the Amended Purchase Agreement.
F. On or about October 16, 2018, Craig Realty Group Citadel, LLC assigned all of its right, title and interest in the Amended Purchase Agreement and the Property to Citadel Holdings Group, LLC.
On or about July 21, 2020, the Property was subdivided pursuant to that Parcel Map No. 82490 recorded as instrument 20200810465 in the county recorder's office of Los Angeles County, and amended by that certain Certificate of Correction recorded September 18, 2020 as instrument 20201138174 in the county recorder's office of Los Angeles County (as amended, "Original Parcel Map").
H. Seller and Buyers wish to amend the Amended Purchase Agreement pursuant to the terms and conditions of this Second Amendment. Capitalized terms not otherwise defined in this Second Amendment shall have the meanings ascribed to such terms in the Amended Purchase Agreement.
I. Buyers and Seller intend to subdivide Parcel 5 and Lot B of the Original Parcel Map in order to create an additional parcel containing an 80 foot by 174.03 foot strip of land containing approximately 0.325 acres designated as "Parcel 6" on Exhibit "A" attached hereto, which is initially contemplated by Wash-Tel Buyer to be development as "Restaurant Employee Secured Overflow Parking".
J. In addition, Buyers and Seller intend to further subdivide Lot B of the Original Parcel Map into three (3) separate lots designated as "Lot B", "Lot D", and "Lot E", all as depicted on the new Parcel Map No. 84047 attached hereto as Exhibit "A" (Parcel Map").
K. The amended Parcel 5 and Lot D of the Parcel Map are contemplated by Seller for development as a City Public Safety Facility ("City Public Safety Facility Land"). The City Public Safety Facility Land occupies the majority of the Citadel Use Land and a portion of the previously reserved 1.8 acres of the Property.
L. The Amended Purchase Agreement will continue to control all aspects of the agreement between Seller and Buyers except for those terms that this Second Amendment explicitly modifies.
NOW, THEREFORE, incorporating the foregoing recitals as a part of this Second Amendment, and in consideration of the mutual covenants and conditions contained in this Second Amendment, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyers and Seller agree as follows:
AGREEMENT
I. Section 1 of the First Amendment is deleted in its entirety and replaced with the following:
Property. Except as otherwise provided in Section IV of this Second Amendment, the terms "Land", "Property", "Wash-Tel Use Land", "Wash-Tel Use Property", "Citadel Use Land" and "Citadel Use Property" shall be modified to exclude the City Public Safety Facility Land. In addition, the "Citadel Use Land" is hereby reduced to exclude those portions of Lot B and D and Parcel 6 of the Parcel Map. The amended Citadel Use Land is currently part of City Public Safety Facility Land that Seller is reserving and therefore CRC Buyer's rights to purchase the Citadel Use Land and Citadel Use Property is limited to Section IV of this Second Amendment. Wash-Tel Buyer's initial acquisition shall include Parcels 1,2, 3, 4, and 6 and Lots B, C, and E of the Parcel Map ("Initial Wash-Tel Use Land") as well as Lot A, however, Lot A will ultimately be dedicated as a public street following the completion of certain road improvements. The amended Parcel 5 and Lot D depicted on Exhibit "A" shall be reserved in fee title to the City. Section 1 of the First Amendment and the remainder of the Amended Purchase Agreement is hereby amended so as to be consistent with the foregoing.
II. Section 2 of the First Amendment is deleted in its entirety and replaced with the following:
2. Purchase Price. Except as otherwise provided in Section IIl of this Second Amendment, the Purchase Price for the Initial Wash-Tel Use Land shall be approximately Five Million, One Hundred 2 Fifty Six Thousand, Nine Hundred Twenty Seven and 94/100 Dollars ($5,156,927.94), subject to an adjustment based on the actual acreage of the Initial Wash-Tel Use Land on the basis of $943,973.63 per acre. Section 2 of the First Amendment and the remainder of the Amended Purchase Agreement is hereby amended so as to be consistent with the foregoing.
III. Section 3 of the First Amendment is deleted in its entirety and replaced with the following:
Buyers Option to Acquire City Public Safety Facility Land. In the event, within fifty- two (52) months following the Closing of Escrow on the Initial Wash-Tel Use Land, Seller has not begun pouring building foundations or other vertical construction of a City Public Safety Facility occupying all of the City Public Safety Facility Land, then either of the Buyers (or both as the Buyers may elect) shall have the option and right to purchase all or any portion of the City Public Safety Facility Land upon which vertical construction has not commenced ("Option Land"') at $943,973.63 per acre ("Facility Option"), by delivering written notice thereof to Seller and the other Buyer ("Facility Option Notice"), provided such vertical construction has not commenced prior to Seller's receipt of such Facility Option Notice. The Facility Option shall expire sixty-four (64) months following the Closing of Escrow on the Initial Wash- Tel Use Land. Seller shall give written notice to Buyer(s) of the expiration of the Facility Option at least three (3) months prior to the expiration date. If Seller fails to give Buyer(s) written notice of the expiration date, then the Facility Option expiration date shall be extended for a period of six (6) months. Either Buyer may join the election to purchase its portion of the Option Land by delivering written notice thereof to Seller and the other Buyer within thirty (30) days after receipt of the initial Facility Option Notice from the other Seller. In the event both Buyers exercise the Facility Option and an alternative allocation is not agreed to in writing between the Buyers, then CRC Buyer shall have the right to purchase the Citadel Use Land and Wash-Tel Buyer shall have the right to purchase the remainder of Option Land. In the event that either Buyer exercises the Option, then Seller and Buyers (or the exercising Buyer as applicable) shall enter into either an amendment to the Purchase Agreement or a new purchase and sale agreement on substantially the same terms as the Original Purchase Agreement, updated appropriately for matters which have therefore occurred at such time ("City Public Safety Facility Land Purchase Agreement"). Seller and Buyers shall diligently cooperate to finalize, execute and have the City Public Safety Facility Land Purchase Agreement finalized and approved by all applicable parties as quickly as reasonably possible. The closing date for such purchase of the Option Land under such City Public Safety Facility Land Purchase Agreement shall be no more than (i) one hundred and twenty (120) days following the execution and delivery of the City Public Safety Facility Land Purchase Agreement by Buyer and Seller, or (ii) two hundred and forty (240) days following the delivery of the Facility Option Notice, whichever is earlier; provided however such closing date shall be subject to the same rights of extension as set forth in Section 3.3 of the Original Purchase Agreement.
IV. Section 4 of the First Amendment is deleted in its entirety.
V. Section 5 of the First Amendment is deleted in its entirety and replaced with the following:
5. Closing Date. Section 3.2 (Closing Date) of the Amended Purchase Agreement is hereby amended such that Escrow for the Initial Wash-Tel Use Land shall close on or before the date which is ninety (90) days following the later of the (i) execution of this Second Amendment by all parties, or (ii) the CDOF Acceptance Date ("Closing Date"), subject to any extension exercised by Wash-Tel Buyer pursuant to Section 3.3 of the Amended Purchase Agreement.
VI. Section 6 of the First Amendment is deleted in its entirety and replaced with the following:
6. Infrastructure Improvements and Maintenance.
3 Infrastructure Cost Sharing. Within twelve (12) months of the Closing of Escrow for the sale of the Initial Wash-Tel Use Land by Seller to Wash-Tel Buyer, Wash-Tel Buyer shall commence private and public improvements, including without limitation, dry and wet utilities, storm drain facilities, water treatment, and the like, installation of an interior road on Lot A of the Parcel Map, sidewalks, street lights, landscaping, water fountains, traffic signal (if required) and other public improvements to the extent imposed by the City for the development of the Property. The cost of those components of development of the overall Property, such as engineering and architectural costs and studies, infrastructure costs (dry and wet utilities, storm drain facilities, and the like), the cost of planning and installation of the roads and shared amenities and/or cost imposed on the developer for public roads and improvements (collectively, "Infrastructure Work"). Wash-Tel Buyer shall deliver to Seller an estimated budget for such Infrastructure Work for Seller's approval, which approval shall not be unreasonably withheld, conditioned or delayed. Wash-Tel Buyer shall be responsible for the portion of the cost of the Infrastructure Work based on the percentage of acreage of the Initial Wash-Tel Use Land in relation to total acreage in Parcel Map other than Lot A ("Wash-Tel Buyer's Share"); and Seller shall be responsible for the portion of the cost of the Infrastructure Work based on the percentage of acreage of the City Public Safety Facility Land and Lot D in relation to total acreage in Parcel Map, other than Lot A ("Seller's Share"). During the course of such construction, Wash-Tel Buyer shall make progress payments to the contractors, engineers and architects for the Infrastructure Work as invoiced by such parties performing the Infrastructure Work. Seller shall make progress payments to Wash-Tel Buyer based on Seller's Share of such Infrastructure Work within thirty (30) days after receipt of an invoice from Wash-Tel Buyer for reimbursement of the payments made for the Infrastructure Work. In no event shall the total of such progress payments exceed the budget approved by Seller without the prior written approval of Seller, which approval shall not be unreasonably withheld or delayed. As a condition to the Closing of Escrow, Wash-Tel Buyer and Seller shall enter into the agreement attached hereto as Exhibit "C" at Closing that more precisely addresses the foregoing and any future maintenance of such improvements ("Infrastructure and Maintenance Agreement").
6.2 Shared Maintenance Costs. The Infrastructure and Maintenance Agreement shall also provide necessary easements and maintenance and operating obligations of the Lots B, C, D and E including the reimbursement of such operating costs. Wash-Tel Buyer shall be responsible for maintenance and operation of Lots B, C, D and E. Wash-Tel Buyer shall be responsible for Wash-Tel Buyer's Share and Seller shall be responsible for Seller's Share of the annual operating costs of Lots B, C, D and E, including without limitation, landscaping, fountain maintenance, electricity, and sidewalk lighting, however, Seller shall not be responsible for any real estate taxes due on Lots B, C, and E. The obligations in the Infrastructure and Maintenance Agreement shall run with the land and bind any successors of either Party, and therefore, Seller's Share and Buyer's Share shall be adjusted proportionately for any future transfers, sales, purchases, conveyances or changes in ownership of the land assessed within Parcel Map such as in the event Buyers exercise of the Facility Option in Section 3 above. Prior to the Closing on the Initial Wash-Tel Use Land, Seller shall also remove and reconvey the Easement Note in the Original Parcel Map which grants an undivided interest in Lots B and C of the Original Parcel Map to the owners of the five (5) parcels. Seller shall not bear such cost allocation obligation to the extent Buyers exercise the Facility Option and purchase the City Public Safety Facility Land and Lot D. Wash-Tel Buyer is aware, acknowledges and understands the provisions of California Labor Code Section 1720, and specifically Section 1720(c) which may require the payment of prevailing wages on all or parts of a project which are paid for in whole or in part by public funds. Wash-Tel Buyer agrees to hold harmless, indemnify and defend the City for and from any claim, action, lawsuit or administrative proceeding arising from non-payment of prevailing wages for work performed on the Property. Except for Seller's share of the infrastructure improvements, Wash-Tel Buyer shall dedicate to the City, free of cost, all public improvements required by the City and thereafter, City shall maintain such public improvements subject to any required warranty periods.
VII. Section 5.3 of the Amended Purchase Agreement is deleted in its entirety and replaced with the following:
4 5.3 Prohibited Uses. Buyer covenants and agrees that the Property shall not be used for any of the following purposes:
(a) Tattoo Parlor
(b) Liquor Store
(c) Video Arcade
(d) Cannabis Related Business
(e) New or Used Automobile Dealership
(1) Nail Salon
(g) Tobacco Shop
VIII. Article 2 (Agreement Contingent on CEQA Compliance) of the Amended Purchase Agreement is deleted in its entirety.
IX. Sections 8.1(h) and 8.2(b) of the Amended Purchase Agreement are deleted in their entirety.
Grant Deed. The Grant Deed attached to the Original Purchase Agreement as Exhibit "E" is deleted in its entirety and replaced with the Grant Deed attached hereto as Exhibit "E". The Grant Deed shall contain the reservation to the City of fee title to Lot D. The Grant Deed shall also reserve to the City a temporary easement for ingress and egress by vehicles, pedestrians and other means as reasonably necessary across Parcel 1 and 6 and Lot B ("Temporary Easement Land") in favor of Parcel 5, which temporary easement will automatically expire upon the acceptance by the City of Lot A as a public street, provided that, (i) Seller shall remove any improvements made and any rocks and other materials added to the Temporary Easement Land in connection with such use within thirty (30) days after the termination of such easement; (ii) Seller assumes all risk for and of its use of the Temporary Easement Land; (iii) Seller shall not permit any mechanic's lien filed against the Temporary Easement Land and shall remove any such lien(s) within thirty (30) days after written notice to Seller; and (iv) Seller shall indemnify, defend and hold Buyers harmless from and against any and all liens, liabilities, damages, claims, demands, costs and expenses, including, without limitation, reasonable attorneys' fees, arising from Seller or its agents use of such easement.
XI. Assignment. Seller hereby represents and warrants to Buyer that Agency previously assigned to Seller all of Agency's rights, title, and interest in and obligations under the Amended Purchase Agreement and the Property, if any, and Seller hereby accepts such assignment and assumes all of Agency's rights, title, and interest in and obligations under the Amended Purchase Agreement and the Property and agrees to keep and perform all of the covenants, terms and conditions in the Amended Purchase Agreement that were to have been performed by the Agency. Further, Buyers hereby consents to this assignment and assumption of Agency's interest and obligations to Seller.
XII. Construction Penalty. In the event, within five (5) years following the Closing Date of the acquisition of the Initial Wash-Tel Use Land by Wash-Tel Buyer, a certificate of occupancy specific to Parcel 1, 2, 3, or 4 of the Parcel Map shall not have been obtained (subject to any delays caused by a Force Majeure event), then Seller shall have the right to deliver written notice to Wash-Tel Buyer of such failure and in the event Wash-Tel Buyer does not obtain the parcel specific certificate of occupancy within sixty (60) days following the receipt of such notice, then Seller may require that Buyer pay a fine ("Construction Penalty") to Seller in the amount of One Hundred Thousand Dollars ($100,000.00) per Parcel for each of Parcel 1, 2, 3, and 4 upon which a certificate of occupancy has not yet been obtained; provided however, once an initial certificate of occupancy shall have been obtained for three of the four parcels, the amount of the Construction Penalty shall be reduced to Twenty Thousand Dollars ($20,000.00) for the remaining parcel. In the event Wash-Tel Buyer has not received a certificate of occupancy for each such parcel within one (1) year after the due date of the prior Construction Penalty, and on each anniversary of the prior year's 5 due date thereafter, Seller shall again have the right to deliver written notice to Wash-Tel Buyer of such failure and in the event Wash-Tel Buyer fails to receive a parcel specific certificate of occupancy within sixty (60) days following the receipt of such notice, Seller may again require that Buyer pay the Construction Penalty to Seller. Notwithstanding anything in this Second Amendment to the contrary, the foregoing Construction Penalty shall not apply to a parcel once the initial certificate of occupancy for such parcel shall have been obtained; nor shall Wash-Tel Buyer be required to pay a Construction Penalty unless Seller has paid all the amounts currently due under Section VI of this Second Amendment.
XIII. Force Majeure. Notwithstanding anything in the Amended Purchase Agreement or this Second Amendment to the contrary, the delay in any construction or commencement thereof resulting from inclement weather, acts of God, natural disasters, war, civil commotion, riots, strikes, picketing or other labor disputes, imposition of a moratorium, court order, acts or omissions of any applicable governmental agency, unavailable of labor or materials or damage by reason of fire or other casualty or causes beyond the reasonable control of Buyer other than for financial reasons (collectively, "Force Majeure"), shall then extend any corresponding period of time for a period equal to the delay caused by such Force Majeure event.
XIV. The Amended Purchase Agreement is hereby amended and shall be construed so as to be consistent with the terms of this Second Amendment.
Full Force and Effect. Except as explicitly modified by this Second Amendment, the Amended Purchase Agreement, and each provision thereof, shall continue unmodified and in full force and effect. [SIGNATURES ON FOLLOWING PAGE]
6 IN WITNESS WHEREOF, Buyer and Seller have executed this Second Amendment to Contingent Agreement to Purchase and Sell Real Estate and Escrow Instructions as of the date first above written. "Seller"
THE CITY OF COMMERCE
By:
Name:
Title: Mayor
ATTEST:
By:__
Name: Lena Shumway
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Noel Tapia
Title: City Attorney
[Signatures continued on next page]
7 "Buyers"
WASH-TEL COMMERCE, LLC,
a California limited liability company
CITADEL HOLDINGS GROUP, LLC,
a Delaware limited liability company
By: Eureka Realty Partners, Inc.,
a California corporation,
Manager
Sau
By:_ * Lip
/Steven L. Craig
President
AGREED AND ACCEPTED AS OF
2023
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Its:
"Escrow Holder"
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EXHIBIT "B"
DATES AND TIMEFRAMES
This Exhibit "B" contains a summary of the dates and timeframes set forth in the Amended Agreement as amended by this Second Amendment To Contingent Agreement To Purchase And Sell Real Estate And Escrow Instructions (Washington & Telegraph). Exhibit "B" is intended to be a convenience tool for the use of Buyer(s) and Seller, and shall not in any way amend or modify the dates and timeframes set forth in the Amended Agreement as amended by this Second Amendment To Contingent Agreement To Purchase And Sell Real Estate And Escrow Instructions (Washington & Telegraph). (a) Closing Date for the purchase of the Initial Wash-Tel Use Land:
(The Closing Date shall occur within 90 days after execution of this Second Amendment, which is initially anticipated to occur on January 31, 2023. See also Section V of the Second Amendment.) (b) Infrastructure Improvements commenced by:
(The Infrastructure Improvements shall commence within 12 months of the Closing Date mentioned in Section (a) above)
(c) Facility Option Notice:
(Buyers have the option to purchase all of the portions of unused or unbuilt land within the City Public Safety Facility Land initially retained by Seller for the City Public Safety Facility, if construction has not commenced within 52 months from the initial Closing Date mentioned in Section (a) above. This option expires 64 months following the Closing of Escrow on the Initial Wash-Tel Use Land. Seller shall give written notice to Buyer(s) of the expiration of the Facility Option at least three (3) months prior to the expiration date. If Seller fails to give Buyers) written notice of the expiration date, then the Facility Option expiration date shall be extended for a period of six (6) months.) (d) Closing Date for the contemplated Option Land:
(within the earlier of (i) 120 days following the execution and delivery of the City Public Safety Facility Land Purchase Agreement by Buyer and Seller; or (ii) 240 days following the execution and delivery of the Facility Option Notice by optionee mentioned in Section (c) above) (e) First Construction Penalty Notice:
(If a Certificate of Occupancy has not been received for Parcels 1, 2, 3 or 4 at any time within five (5) years from the Closing Date mentioned in Section (a) above, Seller may deliver to Wash-Tel Buyer the first Construction Penalty Notice)
(f) First Construction Penalty Due Date:
(Payment of the first Construction Penalty is due to Seller on the 61" day after delivery of the first Construction Penalty Notice, if a Certificate of Occupancy for any of Parcels 1, 2, 3 and 4 has still not been received within sixty (60) days after delivery of the first Construction Penalty Notice to Wash-Tel Buyer. The amount of the first Construction Penalty is $100,000 per parcel for each parcel that has not previously received a Certificate of Occupancy, however, if only one of those parcels has never received a Certificate of Occupancy, then the Construction Penalty shall be reduced to $20,000.) 10 EXHIBIT "C"
INFRASTRUCTURE AND MAINTENANCE AGREEMENT
[TO BE ATTACHED]
11 WHEN RECORDED RETURN TO:
MAIL TAX STATEMENTS TO:
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
Exempt from recording fees per Government Code Sec. 27383
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR
INFRASTRUCTURE AND MAINTENANCE
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR INFRASTRUCTURE AND MAINTENANCE (this "Declaration") is entered into as of , 2023 by and between WASH-TEL COMMERCE, LLC, a California limited liability company ("Wash-Tel"); and THE CITY OF COMMERCE, a public entity ("City"). Wash-Tel and City are collectively referred to herein as the "Parties" or individually as a "Party".
RECITALS
Wash-Tel and City are the owners of approximately 10.62 acres of real property located in the City of Commerce, County of Los Angeles, State of California, more particularly described on Exhibit "A" attached hereto ("Property"), upon which the Parties intends to develop a retail, commercial, business, and professional project to partially implement the Telegraph Road Retail/Commercial/Entertainment concept envisioned by the former City of Commerce Community Development Commission (Project").
Wash-Tel is the owner of Parcels 1, 2, 3, 4, and 6 and Lots A, B, C, and E of Parcel Map No. 84047, as more particularly described on Exhibit "B" attached hereto (Wash-Tel Property"); and City is the owner of Parcel 5 and Lot D of Parcel Map No. 84047 as more particularly described on Exhibit "C" attached hereto ("City Property"). Parcels 1, 2, 3, 4, 5, and 6 of Parcel Map No. 84047 are collectively referred to herein as the "Parcels" or individually as a "Parcel", and the Lots A, B, C, D and E of Parcel Map No. 84047 are collectively referred to herein as the "Lots" or individually as a "Lot".
In order to develop the Project and provide access to each of the Parcels, the parties intend for Wash-Tel to construct and install certain private and public improvements for the benefit of all the Parcels, including without limitation, a road on Lot A of Parcel Map No. 84047, dry and wet utilities, storm drain and water treatment facilities, sidewalks, street lights, landscaping, a water fountain, a traffic signal if required by the governing municipalities, and other public improvements to the extent imposed by the governing municipalities for the development and general use of the Parcels, but excluding any private improvements that are solely for the benefit of one Parcel (collectively, "Improvements").
AGREEMENT
Initial Construction and Cost Sharing of Improvements. As of the date hereof, Wash-Tel has engaged engineers and architects for the creation of certain plans for the Improvements and has begun submission of such plans to the governing municipalities and utilities in preparation of pulling permits for certain Improvements. In addition, Wash-Tel and the City have agreed to the initial budget for such Improvements dated → ("Budget"). Wash-Tel shall continue such work in a commercially reasonable manner until the completion of the Improvements; provided the exact order or schedule of any specific Improvements shall be determined in Wash-Tel's sole discretion and Wash-Tel shall have the right to delay any specific private Improvement until the adjacent Parcel is developed in order to prevent from having to reconstruct any such Improvements. The Parties agree that Wash-Tel shall be responsible for percent ( _%) ("Wash-Tel's Share") and City shall be responsible for percent ( ("City's Share") of the cost to construct the Improvements, which shall include without limitation, engineering and architectural costs and studies, permit and plan review fees, and other entitlement fees, construction costs for dry and wet utilities, storm drain and water retention facilities, the cost of planning and installation of the road, driveways, sidewalks, street lighting, shared amenities such as a water fountain, signage, liability insurance, and other costs and fees associated therewith (collectively, "Improvement Work"). During the course of such construction, Wash-Tel shall make progress payments to the contractors, engineers and architects for the Improvement Work as invoiced by such parties performing the Improvement Work and City shall make progress payments to Wash-Tel based on the City's Share of such Improvement Work within thirty (30) days after receipt of an invoice from Wash-Tel for reimbursement of the payments made for the Improvement Work. In no event shall the total of such progress payments exceed the total contained in the approved Budget without the prior written approval of City and Wash-Tel, which approval shall not be unreasonably withheld or delayed. Any portion of City's Share of the Improvement Work not paid within thirty (30) days after such date shall be delinquent and shall bear interest at the rate of ten percent (10.0%) per annum.
Maintenance of Improvements. Upon completion and acceptance of the road, street lights, signals, and other public improvements, such public Improvements shall be dedicated to the City; and thereafter, the City shall maintain, at the City's sole cost, those City dedicated public improvements in a first class condition. Any Improvements which remain the responsibility of Wash-Tel to maintain shall be maintained, repaired, and replaced in a first class condition which shall include without limitation, (i) resurfacing, repairing, and painting private walkways, drives, curbs, and parking areas on Lots B, C, D and E, (ii) cleaning, sweeping, and waste removal on Lots B, C, D and E, (iii) watering, fertilizing, planting, weeding, mowing, trimming, and replacing any grass, plants, shrubs, trees, and other landscaping on Lots B, C, D and E, (iv) cleaning and treatment of the drainage and water treatment facilities; (v) repairing and replacing the water fountain and any enclosures, fences, retaining walls, signage, and lighting on Lots B, C, D and E; and (vi) maintenance of all private utility lines servicing such Improvements, and paying all utility costs to operate the lighting, water fountain, and other Improvements on Lots B, C, D and E, (vii) preparation of any plans, studies, permits, and the payment of all reasonable fees associated therewith to the extent required for the repair or replacement of any such Improvements; and (vili) maintaining a policy or policies of insurance for Lots B, C, D and E and their private Improvements in an amount at least equal to the full replacement cost of such Improvements without deduction for depreciation, together with other liability insurance covering Wash-Tel's maintenance and operation of such Improvements, and (ix) all other costs associated with the operation and maintenance of Lots B, C, D and E (collectively, "Maintenance Work").
3. Easements. Each Parcel owner is hereby granted an access easement for ingress and egress to its Parcel over the driveways and pathways installed on the Lots immediately adjacent to its Parcel. In addition, Wash-Tel is hereby granted an easement over Lot D to the extent necessary to perform the Improvement Work and Maintenance Work on Lot D. City also agrees to grant and convey any utility 2 easements on, over, and across Lot D to the extent necessary for the development of the Project and any Parcel located therein.
Assessments. Wash-Tel shall be responsible for Wash-Tel's Share of the Maintenance Work each year and City shall each be responsible for City's Share of the Maintenance Work each year.
The City's Share of the Maintenance Work each year shall be paid through an annual assessment fixed and assessed by Wash-Tel after the end of each calendar year, which shall be paid to Wash-Tel within thirty (30) days after the receipt of an invoice for such costs. To the extent the City's Share of any Improvement Work and any interest due thereon remains unpaid, Wash-Tel may add such amounts to the City's annual assessments. In addition, Wash-Tel shall have the right to levy a special assessment at any time during the calendar year for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of any Improvements or part thereof in connection with the Maintenance Work. The due date or dates of regular or special assessments shall be established by Wash-Tel, and any assessment not paid within thirty (30) days after such date shall be delinquent and shall bear interest at the rate of ten percent (10.0%) per annum. The amount of any delinquent assessment, together with interest, costs and reasonable attorney's fees shall be a charge on and a continuing lien upon the Parcel or Lot against which such assessment is made. Each such assessment, together with interest, costs and reasonable attorney's fees incurred in the collection thereof, shall also be the personal obligation of the fee owner of such Parcel or Lot at the time when the assessments were levied. The lien of the assessments provided for herein shall be prior to all other liens recorded subsequent to the recordation of such notice of delinquent assessment and shall be subordinate to any first mortgage made in good faith and for value. Wash-Tel may cause to be recorded with the County Recorder of Los Angeles County a notice of delinquent assessment which shall state the amount of any delinquent assessment, interest, costs and reasonable attorney's fees incurred in the collection thereof, a description of the Parcel or Lot and the name of the fee owner of such Parcel or Lot.
Upon payment or satisfaction of such delinquent assessment and charges, Wash-Tel shall cause to be recorded a further notice stating the satisfaction and the release of the lien thereof. Except to the extent prohibited by applicable law, Wash-Tel may bring an action at law against the fee owner personally obligated to pay the assessments or foreclose its lien against such fee owner's Parcel(s) and Lots). No owner may waive or otherwise escape liability for the assessments provided for herein by non-use or abandonment of its Parcel(s) and Lots). Except to the extent prohibited by applicable law, Wash-Tel shall have power to purchase the Parcel(s) or Lots) at foreclosure sale and to hold, lease, mortgage and convey the same. The sale or transfer of any Parcel or Lot pursuant to foreclosure or any proceeding in lieu thereof of such a mortgage (except a deed in lieu of foreclosure) shall extinguish the lien of assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Parcel or Lot from liability for any assessments thereafter becoming due or from the lien thereof.
Right of the City to Compel Performance. Provided City has paid all current and prior assessments on its Parcel(s) or Lots) as described herein, in the event Wash-Tel fails to fulfill its responsibilities in regard to the Maintenance Work after written notice to Wash-Tel and a reasonable period to cure such failure, City, so long as City remains to be the owner of Parcel 5, shall have the right to perform such Maintenance Work, if any, and enforce the provisions of this Declaration in regard to establishing and collecting the assessments described above.
6. Maintenance and Taxes for Parcels. After the development of each Parcel and except to the extent necessary in connection with reasonable construction, each fee owner shall keep its Parcel reasonably free from the accumulation of waste and debris and the unsightly storage of materials or equipment and shall maintain the exteriors of all buildings on its Parcel, including but not limited to walls, fences, roofs, landscaping, parking areas and exterior surfaces, in first-class condition and repair. In addition, each Owner is obligated to pay any taxes and assessments levied by any public taxing or assessing authority against its own Lot or Parcel and personal property.
3 no vime the land, shas oternie referent does or are is and pos container, shall Declaration shall run with the land,
inure to the benefit of the fee owners thereof and their respective legal representatives, heirs, successors and assigns and shall be enforceable by proceedings at law or in equity. City's Share and Wash-Tel's Share shall be adjusted proportionately in the event of any future transfers, sales, purchases, conveyances or changes in ownership of the land assessed within Parcel Map 84047. Provided each fee owner of any Parcel or Lot has paid all current and prior assessments on its Parcel(s) or Lots), then any fee owner shall have the right to enforce the provisions of this Declaration as it may have been amended from time to time without liability for failure to do so. To the extent permitted by applicable law, Wash-Tel, in its own name or in the name of a fee owner or any fee owner, may institute or prosecute any suit it may consider advisable, including, but not limited to a suit to prevent violation of the provisions of this Declaration or to compel and obtain a decree for specific performance of any obligation of any fee owner pursuant to this Declaration as amended or to recover damages for any violation of the provisions of this Declaration as amended.
Failure by any fee owner to enforce any covenant or restriction contained herein shall in no event be deemed a waiver of the right to do so thereafter. Any breach of any of the covenants or restrictions contained herein shall not defeat or render invalid the lien of any mortgage made in good faith and for value as to a Lot or Parcel or any part thereof. These covenants, conditions and restrictions shall be binding upon and effective against a fee owner of a Lot or Parcel or portion thereof whose title thereto is acquired by foreclosure, trustee's sale or otherwise.
Amendment. This Declaration may be amended or modified by Wash-Tel; provided, however, that any such amendment or modification which impacts Parcel 5 or Lot D shall require the prior written approval of the City of Commerce or its successor in interest. Any amendment shall be written, signed by an authorized officer or manager of Wash-Tel before a notary public and recorded in the office of the Los Angeles County Recorder together with any required written approval of the City or its successor in interest. No amendment of this Declaration shall affect the rights of any mortgagees who do not join in the execution thereof, provided that the Mortgage is recorded prior to recordation of such amendment.
Severability. Invalidation of any one or more of the provisions of this Declaration by judgment or court order shall in no way affect any of the other provisions which shall remain in full force and effect.
Term. The covenants, conditions and restrictions contained in this Declaration shall remain in effect for thirty (30) years from the date of this Declaration, and shall be automatically extended for successive periods of ten (10) years each unless after such time both the City and Wash-Tel, or their successors, shall join in the execution and recordation in the Official Records of the Office of Los Angeles County Recorder of a written instrument terminating such covenants, conditions and restrictions or any part thereof.
Constructive Notice. Every person who now owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition, and restriction contained herein, whether or not any reference to this Declaration is contained in the instrument by which such person acquired an interest in such portion of the Property. [SIGNATURE PAGE TO FOLLOW]
4 IN WITNESS WHEREOF, Wash-Tel and City have executed this Declaration of Covenants,.
Conditions, and Restrictions for Infrastructure and Maintenance as of the date first above written. "City"
THE CITY OF COMMERCE
By:
Name:_
Title: Mayor
ATTEST:
By: _
Name: Lena Shumway
Title: City Clerk
APPROVED AS TO FORM:
By: _
Name: Noel Tapia
Title: City Attorney
"Wash-Tel"
WASH-TEL COMMERCE, LLC,
a California limited liability company
By:
Steven L. Craig,
Manager
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California
County of
(here insert name and title of the
officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California
County of
_before me, (here insert name and title of the
officer, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized Chich the per and stacked ixecute the intumes) on the instrument the person(s), o the entiy upon behalf of I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
6 EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
The Land is that certain real property located in the City of Commerce, County of Los Angeles, State of California, more particularly described as follows:
7 EXHIBIT "E"
FORM GRANT DEED
RECORDING REQUESTED BY:
THE CITY OF COMMERCE
2535 Commerce Way
Commerce, California 90040
Attention:
WHEN RECORDED RETURN TO AND
MAIL TAX STATEMENTS TO:
Craig Realty Group Citadel, LLC
4100 MacArthur Boulevard, Suite 200
Newport Beach, CA 92660
Attn: Deborah Siegel
(Space Above For Recorder's Use)
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged THE CITY OF COMMERCE, a public body of the State of California (herein called "Grantor"), hereby grants to WASH-TEL COMMERCE, LLC, a California limited liability company (herein called "Grantee"), the real property described in the document attached hereto as Exhibit "A" (the "Property"), and incorporated herein by this reference.
1. Grantor excepts and reserves any existing street, proposed street, or portion of any street or proposed street lying outside the boundaries of the Property which might otherwise pass with a conveyance of the Property.
Said Property is conveyed in accordance with the Contingent Agreement to Purchase and Sell Real Estate and Escrow Instructions (the "Agreement") entered into by and between Grantor and Grantee on May _ 2017, as amended, which document is a public record on file in the offices of the City Clerk of the City of Commerce and the Secretary of Grantor.
Capitalized terms not defined in this Grant Deed shall have the meanings ascribed to such terms in the Agreement
3. Grantee covenants and agrees for itself, its successors, its assigns, and all person claiming under or through them that there shall be no discrimination against or segregation of any person or group of person on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use occupancy, tenure, or enjoyment of the 12 Property, nor shall Grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land All deeds, leases or contracts made relative to the Property, improvements thereon, or any part thereof, shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any distin ilation or segreg at through, it, enca lich serin, lova such pract, use practices of of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased."
(c) In contracts pertaining to the real property: "There shall be not discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under of through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the land."
5. Prohibited Uses. Buyer covenants and agrees that the Property shall not be used for any of the following purposes:
(a) Tattoo Parlor
(b) Liquor Store
13 Video Arcade
(d) Cannabis Related Business
(e) New or Used Automobile Dealership
(f) Nail Salon, or
(g) Tobacco Shop.
Grantor hereby reserves a temporary easement for ingress and egress by vehicles, pedestrians and other means as reasonably necessary for the development and construction of Parcel 5 of Parcel Map 84047 over and across Parcel 1, Parcel 6 and Lot B of Parcel Map 84047 ("Temporary Easement Land") for the benefit of Parcel 5 of Parcel Map 84047, which temporary easement shall automatically expire upon the dedication of Lot A of Parcel Map 84047 as a public street, provided that, (i) Grantor shall remove any improvements made and any rocks and other materials added to the Temporary Easement Land in connection with such use within thirty (30) days after the termination of such easement; (ii) Grantor assumes all risk for and of its use of the Temporary Easement Land; (iii) Grantor shall not permit any mechanic's liens to be filed against the Temporary Easement Land and shall remove any such lien(s) within thirty (30) days after written notice to Grantor; and (iv) Grantor shall indemnify, defend and hold Grantee harmless from and against any and all liens, liabilities, damages, claims, demands, costs and expenses, including, without limitation, reasonable attorneys' fees, arising from Grantor or its agents use of such Temporary Easement Land.
7. Grantee shall have the right and option to purchase all or a portion of Parcel 5 and Lot D of Parcel Map 84047 pursuant to the terms, covenants and conditions set forth in a separate agreement between Grantor and Grantee, in the event Grantor has not commenced vertical construction of Parcel 5 of Parcel Map 84047 within fifty-two (52) months after the recording of this Grant Deed, however, such option shall expire sixty-four (64) months following the recording of this Grant Deed. Seller shall give written notice to Buyers) of the expiration of the Facility Option at least three (3) months prior to the expiration date. If Seller fails to give Buyers) written notice of the expiration date, then the Facility Option expiration date shall be extended for a period of six (6) months.
All conditions, covenants and restrictions contained in this Grant Deed shall be assigns, and the City of Commerce and its successors and assigns, against Grantee, its successors and assigns, to or of the Property conveyed herein or any portion thereof or any interest therein, and any party in possession or occupancy of said Property or portion thereof.
9. The covenants against discrimination set forth in paragraphs 4 of this Grant Deed shall remain in perpetuity.
10. In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that Grantor shall be deemed a beneficiary of the agreements and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the 14 interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. Grantor shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any actions at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant.
11. The covenants contained in this Grant Deed shall be construed as covenants running with the land and not as conditions which might result in forfeiture of title. [SIGNATURE PAGE TO FOLLOWI
15 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized this day of Grantor:
THE CITY OF COMMERCE, a public entity
By:_
Name:
Title:
ATTEST:
Lena Shumway,
City Clerk
APPROVED AS TO FORM:
By:
Noel Tapia, City Attorney,
Legal Counsel
16 GRANTEE HEREBY ACCEPTS THE WRITTEN DEED, SUBJECT TO ALL OF THE MATTERS HEREINABOVE SET FORTH.
Grantee:
WASH-TEL COMMERCE, LLC,
a California limited liability company
By:_
Steven L. Craig, Manager
17 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California )
County of -
On before me, (here insert name and title of the
officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California
County of )
before me, (here insert name and title of the
officer, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the and that by his heriner signatedes o me instame he peons, or sace cily upon behalf of wied the persons. acted, executed the instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
18 EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
The Land is that certain real property located in the City of Commerce, County of Los Angeles, State of California, more particularly described as follows:
(the legal description will have to contain a reservation of the fee interest to the City of the portion of Lot D depicted on Exhibit A-1 and legally described as described on Exhibit A-2)