8806 IMPERIAL HWY. TCE PURCHASE AND ACQUISITION AGREEMENT —ADOPT RESOLUTION AUGUST 23, 2022
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FITRWRI• L
A property appraisal has been completed for the acquisition of the temporary construction easement at 8806 Imperial Highway. Based on the appraisal, a just compensation amount of $3,550 has been determined for said temporary construction easement. An offer in the amount of $3,550 was submitted to the property owner along with the purchase agreement. The owner has accepted the offer and has signed the agreement.
The adoption of the attached resolution (Attachment B) will be necessary in order to execute the purchase agreement (Exhibit "A") and to move the acquisition process forward. Staff recommends adoption of the resolution and approval of the agreement. Following execution of the agreement, the acquisition will go through escrow with the City taking possession of the portion of the property approximately 30 days thereafter.
Construction of the Lakewood Boulevard at Imperial Highway Intersection Improvements is expected to commence in March 2023 and be completed by October 2023. A Mitigated Negative Declaration (MND) was completed for this project in July 2021 and adopted by the City Council on September 14, 2021. Per the adopted MND, the acquisition of the aforementioned temporary construction easement will have no significant impact.
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FISCAL IMPACT
The $3,550 cost of temporary construction easement acquisition is budgeted in the Fiscal Year 2022-23 Capital Improvement Program in account no. 26-1-6747. The funding source is 1-605 Congestion Hot Spots Measure R grant.
ATTACHMENTS
Attachment A - Location Map
Attachment B - Resolution
Exhibit "A" - Purchase Agreemenl
1 8806 Imperial
Highway
(APN 6263-001-007)
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CouncilWHEREAS, the City determined i • • v of •: and
the sale transaction contemplated thereby, are in the best interest of the City and the public health, safety and
Agreement,SECTION, 1. The City Council of the City of Downey hereby (i) approves the • • of ' •' hereto as Exhibit' and is on
Clerk, (ii) if required, authorizes and directs the City Manager to make final changes to the Agreement consistent• direction,and (iii) authorizes the Mayorto execute the final Agreement and any other documents and agreements necessary to complete the sale transaction contemplated by the Agreement.
XLANCA PACHECO, Mayor
u • a ALICIA DUARTE,
City Clerk I
IFIX41on I &
RESOLUTION-RO. 22-
PAGE 2
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a regular meeting held on the 231d day of August, 2022, by the following vote, to wit:
mARIA ALICIA DUARTE, CIVIC
City Clerk
AGWEEIZ
DOWNEY, CALIFORNIA
THIS AGREEMENT is entered into this — day • 2022, • and among the CITY OF DOWNEY, A MUNICIPAL CORPORATION AND CHARTER CITY (hereinafter "City"), and Irene Cantoran, Trustee of The Irene Cantoran Revocable Living Trust dated May 5, 2020, (hereinafter "Seller").
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1 . Seller owns real property at 8806 Imperial Highway, Downey, California, further legally described in ATTACHMENT "A" is incorporated herein by this reference and hereafter referred to as the "Property".
2. The City desires to acquire a temporary construction easement from the Seller for the Lakewood Blvd. & Imperial Hwy. Intersection Improvement Project.
3. The City desires to acquire a temporary construction easement from Seller. The six (6) •: term • the temporary construction easement will commence when written notice is provided to Seller by the City or its contractor(s). The six (6) month term of the temporary construction easement will commence following a seventy-two (72) hour written • to the Grantor • the City • its subcontractors. The temporary construction easement is described and shown in EXHIBITS "A" and "B" of the attached Temporary Construction Easement Deed ("Construction Easement") and incorporated herein of this Agreement as ATTACHMENT "B".
NOW, THEREFORE, in view of the above -recitals and mutual promises and covenants contained herein, the parties .• as follows:
AGREEMENT
On the terms and conditions set forth herein, Seller agrees to grant the City a temporary construction easement and City agrees to compensate the Seller for the temporary construction easement. The total price for the compensation of the temporary construction easement, payable in cash through escrow, shall be at a cost of THREE THOUSAND FIVE HUNDRED FIFTY DOLLARS ($3,550.00). In exchange • receipt of this amount, Seller releases City of any and all claims by Seller under the United States Constitution Amendments 5 and 14, and for any and all claims under state law, including but not limited to claims for the value of the real estate and improvements thereon, severance damages, relocation benefits and • • i••• Notwithstanding • to the • contained in this Section 1, the City shall remain liable for any injury to persons or damage to property relating to or arising from the acts of omissions of the City or its agents, employees, contractors and representatives on the ••
Council,This sale shall be consummated through approval by City's designee(s) and/or City - deemed necessary forthe purposeof and/or
agreeseasement transfer, the City • open escrow • i. (Commonwealth Land Title Company).Agreement, • is with the Constructionand ATTACHMENT "C" attached hereto, constitutes the joint escrow instructions of City and Seller to the Escrow Holder, which may be supplemented by escrow holders form agreement.
Subject to the conditions described in Section 8, City shall deposit into escrow the sum set forth in Section I above, payable to Seller. The closing date for the escrow shall be no later than sixty (60) days after opening of escrow, unless such date is extended by written agreement of the parties. "Close of Escrow" shall be the date when the Construction Easement to the City is recorded. City shall pay any and all escrow and closing costs. City shall • i.y the ci of ALTA title insurance referenced in Sectioni 7"TWINUMM"M Ili -to
Except • • otherwise be shown in a preliminary' r i to
the current, actual
knowledge of Seller, Seller warrants to City that as of the date of this Agreement and/or as of the date ofcloseofescrow,not granted any unrecordedeasementsor on the Property and Seller does not have actual knowledge of grants of any unrecorded easements or on Property by others.
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exceptTo the current, actual knowledge of Seller, Seller warrants that there is not now, and/or as of close of escrow, there will not be, any violation of any law, ordinance, rule, or administrative or judicial order affecting the Property, nor is there any judicial order affecting the Property, nor is there any condemnation, zoning change, or other proceeding or action (including legislative action) pending, threatened, or contemplated by any governmental body, i or •' or iimprovementsor
construction on, or access to the Property by City. This warranty does not apply to governmental action where notice has not been provided to Seller.
To the current, actual knowledge of Seller, Seller warrants that as of the date of this Agreement • •■closeofescrow,not ` !intoany contracts,
licenses, commitments, or undertakings respecting the Property, or for the performance of services on the Property, or for the use of the Property or any part of it or any agreement or contract of any kind pertaining to the Property by which City would become obligated or liable to anyone.
7.3 From and after record of Construction Easement, City agrees to indemnify, protect, ♦ •harmless and defendSeller againstandall loss,•` damageand liability, including without limitation (1) all foreseeable and unforeseeable consequential damages, directly or indirectly arising from the use, generation, storage, or disposal of hazardous material on the Property by City; and (2) the cost of any required or necessary repair, cleanup, or detoxification and the preparation of any closure or other required plans, but prily to the extent that such liability is attributable to the presence or use, generation, storage, release, threatened release, or disposal of hazardous materials on the Property by City. City's indemnity shall survive close of escrow.
City's obligation to perform this Agreement is subject to City's approval of the condition of title, described in Sections 8.1 and 8.2, City's approval of the condition of the Property described in Section 8.3, and no breach of representations, as described in Section 8.4. iTitleCompany be able iissue in favorofCity anALTA standard owner's policyoftitle insurancedatedas of closeofescrowliability# purchase forthprice, covering the Property, showing title vested in City, and showing as exceptions only current general and special real property taxes, bonds and assessments not yet delinquent, and the exceptions to title that City has approved.
8.2 Promptly, upon opening of escrow, Escrow Holder shall furnish City with a title commitment for an ALTA title policy and legible copies of all documents reported as exceptions in it ("Title Documents"). City shall notify Seller and Escrow Holder in writing within ten (10) days after receipt of the title commitment and the Title Documents of City's disapproval of any exception in those documents. If any supplemental title commitment or supplemental Title Documents are submitted, then City shall notify Seller and Escrow Holder in writing within ten (10) days after City's receipt of such items, but not later than the date mutually agreed upon by the parties in writing for the Close of Escrow, of City's disapproval of any title exception set therein.
Failure of City to notify Seller and Escrow Holder in writing of City's disapproval of any title exceptions shall conclusively be considered as City's approval of same. If City disapproves any title matter - • •in thisparagraph, option, Agreement is -.. rids or other things de�s&osited b-LTA C' shall be
returned to City immediately on demand, and City shall pay all title company and escrow charges.
Agreement8.3 City shall pay for a Property Condition Inspection by a competent inspector selected by the City. City's obligation to close escrow is contingent upon City's approval of the condition of the Property at its sole discretion.
8.4 If there is a breach of any representation or warranty given by Seller pursuant to this discovered by Citybefore close ofescrow,
elect to proceed to close the escrow, in which event City shall •- deemed to have elected • waive such breach, or City may elect to terminate this Agreement and the escrow, in which event this Agreement shall be canceled. If this Agreement and the escrow are terminated by City's election under this paragraph, then all funds or other things deposited by City, if any, shall be returned to City immediately on demand, and Seller shall pay all title company and escrow charges.
To Seller's current, actual knowledge, as • the date • this '• and/or as oi Close of Escrow, no litigation is or will be pending against Seller regarding the use, operation, fevelopment, condition or improvement of the Property, or regarding any right, title or interes! in the Property.
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Seller and City acknowledge that the • and sale • the Property has been negotiated under the threat • condemnation •': the Property • the City. In the event of Seller default, City's ability to perform is prejudiced. Accordingly, in the event the escrow fails to close by reason of a default by Seller, Seller agrees:
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B. That the Seller waives any right to bring an action or claim against City in inverse condemnation or to seek damages for alleged precondemnation conduct arising out of the acquisition by City contemplated under this Agreement.
C. Seller acknowledges that in waiving these claims they have not relied • any representations or statements made or said by City, its agents, attorneys or other representatives.
Except as set forth below in this Section, each party bears its own costs and fees, including any attorneys' fees, associated with the acquisition by the City contemplated under this Agreement. If any party files an action • brings any proceeding against the other arising from this Agreement, or is made a party to any action or proceeding brought • the Escrow Holder, then as between City and Seller and City, the prevailing party shall •' entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees to •- fixed • the court. The "prevailing party" shall •- the party who is entitled to recover its costs • suit, whether • not suit, proceeds to final judgment. A •_ not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is entitled to its costs or • fees.
All covenants,and other obligations stat' i in this Agreement close of escrow. All warranties, covenants, and other obligations that the City discovers to be -ja ;iW-r-Yw,4Acressly waives or does not We& to
before such tender, shall not survive tender of the deed. !
Except otherwise provided herein, this Agreement inures, to the benefit of, and is binding on, the parties, their respective heirs, personal representatives, successors, and This Agreement constitutes the entire agreement among the parties and supersedes all prior discussion, i agreementsoral or written. Y amendment ti. this
Agreement, including an oral modification supported by new consideration, must be reduced to writing and signed by all of the parties before it will be effective. r s • i - . . I$ ! - ! . ! 11 i
No representation, warranty, or recommendation is made by Seller or City or their respective agents, employees, or attorneys regarding the legal sufficiency, legal effect, or tax consequences
_i _ of this Agreementor _ transaction,and each •ry is advised to submit
this Agreementtohisor her respectivebeforesigning
This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts . i • one •
the same instrument.
Time is of the essence• Agreement, `- ifailure to complywith the time provisions of this Agreement shall be a material breach of this Agreement.
The City shall defend, indemnify and hold Seller and the tenant of the Property harmless from • against any and all claims, demands,ofaction,rr liabilities, damages, • and expenses+i •reasonable• andconsultant i expertrelating to or a fromon ' Property.
Except as set forth in Section 7, in its entirety, Section 8.4 and • 11, in no even'j shall Seller have any liability to the City for damages. 7-T-TUMAROINFIT =.. . 0 6 -
The City's contractor(s) shall not occupy any portion of the Seller's property, within the Construction Easement area described • shown on EXHIBITS "A" and "B" • the •' Temporary Construction Easement Deed, • a period in excess • six (6) months following the date of written notice thereon to perform work. As a condition of exercising the Construction Easement, the City or its contractors shall provide at least a seventy-two (72) hour prior written notice to Seller before performing • on • about the Property. The six (6) • term of the temporary construction easement will commence when written notice is provided to Seller by the City or its contractor(s). Written notice will be provided no later than seventy-two (72) hours from the temporary construction easement start date. All work by the City or its contractors shall be performed in compliance with applicable laws.
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IN WITNESS WHEREOF, the parties hereto have executedAgreement the day and year set fo_ _♦♦
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CALIFORNIA,ALL THAT CERTAfil REAL PROPER I L VT
STATE OF DESCRIBED AS FOLLOWS:
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BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT "N" SAID PORTION BEING THE MOST EASTERLY CORNER OF MONTGOMERY TRACT, AS PER Derzo RECORDED IN BOOK 16. PAOE14 OF r - f * ■wXX WENA tOUTHaSOUTHEASTE
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does herebygrant to the CITY OF i CORPORATION OF OF CALIFORNIA AND CHARTER CITY ("Grantee"), its employees, agents, representatives, contractors, successors and assigns, a temporary easement for construction purposes in, on, over, and across all that real property in the City of Downey, County of Los Angeles, State of California, described as
SEEATTACHMENT
EXHIBIT "A'�- LEGAL DESCRIPTION
AND
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• (72) hour written noticeto the Grantor by the City or .ia Dated: GRANTOR:
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Name:
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STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
Aerial View • Subject Property
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Map of Purchase Interest Area
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A notuy public or other officer completing this certificate venfies only the idenhty of the individual who signed the document to which this certificate is mtachpiL and not the trudifiAness, accuracy, or validity of that tocument.
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On —before wntnry Public
(Insert name of the a&!:U (insert title of the officer) personally appeared
Name of Signer (1)
Name of Signer (2)
who proved to me on the basis of satisfactory evidence to be the person(B) whose name(s) Ware subscribed to the me in his/herAheir authorized
within instruntem and aelmowledged to me that helshe/they executed the sa capacityW, and ihat by hWher/thcir signatuto on the instrument the person(s). or the entity upon behalf of which the person(s) acted. executed the iggopML
ILIM—IT 0A-P_qtqtP_.,rf r* MAW ip _6 It '. 1Tf -the_fOMff2iMT mqhk-ar WffNESS my hand ando c seal.
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Signature of Notary Public
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This is to certify that the temporary easement more particularly described in EXHIRIT 'W', and EXHIBIT "B" to the attached TEMPORARY CONSTRUCT10N EASEMENT DEED to the undersignW-C—ity of Downey ("CITY"), the provisions of which instrument are incorporated by this rvf,-i;,ri the undersi�paed officer/agent
on behalf of the CITY's Council Members, and the Grantee consents to recordation thereof by its duly authorized officer.
A-PN: 6263-001-007
By:
MariaAlicia Duarte CMC
City Clerk
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City and Seller agree to open escrow in accordance with Section 2 of this Agreement.
This Agreement constitutes the joint escrow instructions of City and Seller, and Escrow Agent to whom these escrow instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts necessary to close this escrow in the shortest possible time.
As soon as possible after open of escrow, Seller will execute the respective Easement Deed attached to this Agreement as the "Construction Easement" and deposit the executed deed with Escrow Agent on City's behalf. City agrees to deposit the purchase price upon demand of Escrow Agent. City agrees to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction.
Insurance policies for fire or casualty are not to be transferred, and Seller will cancel Seller's own policies after close of escrow.
All funds received in this escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check and/or wire transfer from such account.
2. Escrow Agent is Authorized and is Instructed to Comply with the Follow! Tax Ajustment Proceure: I
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A. Pay and charge Seller for any unpaid delinquent taxes and/or penalties and interest thereon, and for any delinquent or non -delinquent assessments or bonds against the Property.
B. In the event this escrow closes six months subsequent to execution of this agreement, and the current tax information is not available from title insurer, Escrow Agent is instructed to withhold from Seller's proceeds an amount equal to 100% of the prorated amount due based upon the previous fiscal year's second half tax bill. At such time that the tax information is available, Escrow Agent shall make a check payable to the County Tax Collector for Seller's prorated portion of taxes and forward same to the City and shall refund any difference to the Seller.
In the event the amount withheld is not sufficient to pay Seller's prorated portion of taxes due, the Seller herein agrees to immediately pay the difference.
In the event said tax information is available, Seller's taxes shall be prorated in ?ccordance with paragraph "C" below.
C. From the date that tax information is available, as per paragraph "B," up to and including June 30th, Seller's current taxes, if unpaid, shall be prorated to date of close of escrow on the basis of a 365 day year in accordance with Tax Collector's proration requirements, together with penalties and interest, if said current taxes are unpaid after December 10 and/or April 10. At close of escrow, check payable to the County Tax Collector for Seller's pro-rata portion of taxes shall be forwarded • City with closing statement.
D. Any taxes which have been paid by Seller, prior to opening of this escrow, shall not be prorated between City and Seller, but Seller shall have the sole right, after close of escrow, to apply to the County Tax Collector of said county for refund.
This refund would apply to the period after City's acquisition, pursuant to Revenue and Taxation Code Section 5096.7.
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A. Pay and charge City for 100% of escrow fees and closing costs and any amount necessary to place title in the condition necessary to satisfy this Agreement.
B. Pay and charge City for 100% of escrow fees and closing costs payable und-" this Agreement. I
C. Disburse funds and deliver deed when conditions of this escrow have been fulfilled by City and Seller.
The Term "close of escrow", if and where written in these instructions, shall mean th'; date necessary instrument of conveyance is recorded in the office of the County Recorder.
Recordation of instrument delivered through this escrow is authorized if necessary or proper in the issuance of • policy •` title insurance.
All time limits within which any matter herein specified is to be performed may be extended by mutual agreement of the parties hereto. Any amendment of, or supplement to, ?.ny instructions must be in •i
4. Time is of the Essence in these Instructions and Escrow is to Close as Soon as Possible
If (except for deposit of money by City, which shall be made by City upon demand of Escrow Agent before close of escrow) this escrow is not in condition to close within sixty (60) days • " date of _ instructions,any party who then shall have fully complied with these instructions may, in writing, demand the return of their money or property; but if none have complied, no demand for return thereof shall be recognized until five (5) days after Escrow Agent shall have mailed copies of such demand to all other parties at the respective addresses shown in these escrow instructions, and if any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court if competent jurisdiction or mutual instructions. If no demands are made, proceed with closing #if this escrowi • possible.
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tr appropriate inspections.
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Loss or damage • the real property or • tr _thereon, by ,. - or other :.
occurring prior to the recordationof the D--i shall be at the risk of 'r _ In the event that loss or damage to the real property or any improvements thereon, by fire or other casualty, occurs prior to the recordation of the Deed, City may elect to require that the Seller pay • City the proceeds of policy of become ` payable :.• Seller by reason thereof, or to permit such proceeds to be used for the restoration of the damage done, or to reduce the total price by an amount equal to the diminution in value of said Property by reason of such loss or damage or the amount of insurance payable to Seller, whichever is greater. Seller shall not be liable for any loss or damage to Property caused by City upon the effective date of - Construction
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