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AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS
This AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (the “Agreement”) is made and entered into this _______ day of_________, 2024 (hereinafter the “Effective Date”) by and between the CITY OF GLENDALE, a municipal corporation, hereinafter (“Seller”), and the Western Diocese of the Armenian Church of North America, Inc., a religious nonprofit California corporation hereinafter (“Buyer”), for purchase and sale of that certain real property hereinafter described.
WHEREAS, Buyer desires to purchase all of Seller’s right, interest, and title in and to Seller’s real property, commonly described as irregularly-shaped parcel located between the Buyer’s property located at 1015 N. Central Avenue, Glendale, California, and the right-of-way for Glenoaks Boulevard, Glendale, California, with Assessor’s Parcel Number 5636-007-903.
WHEREAS, Seller desires to sell to Buyer said property described in Section 1.1 herein below.
NOW, THEREFORE, with reference to the foregoing Recitals which are incorporated herein by this reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Seller agrees to sell, and Buyer agrees to purchase all Property described below under the terms and conditions of this Agreement.
1. Agreement of Sale
1.1 Description of the Property. The property to be sold and purchased under this Agreement consists of all of the following (collectively, the “Property”):
1.2.1 Land. As described in Exhibit “A” (the “Land”).
1.2.2 Appurtenances. All privileges, rights, easements appurtenant to the Land, vested in Seller including without limitation all minerals, oil, gas, and other hydrocarbon substances on and under the Land; all development rights, air rights, water, water rights, and water stock vested in Seller and relating to the Land; excluding all right, title and interest of Seller in and to any streets, alleys passages, water and sewer taps, sanitary or storm drain capacity or reservations and right under utility easements, and other easements and other rights-of-way including in, adjacent to or used in connection with the beneficial use and enjoyment of the Land (collectively “Appurtenances”).
1.2.3 Improvements. The landscaped area used in connection with the operation or occupancy of the Land.
2. Purchase Price
2.1 Amount. The total purchase price (the “Purchase Price”) for the Property is TWENTY-TWO THOUSAND THREE HUNDRED DOLLARS ($22,300.)
payable by Buyer through escrow to Seller. The Purchase Price shall be paid by Buyer to Seller in cash at Closing (defined herein below). The Purchase Price constitutes the total consideration Seller is paying Buyer and includes the - 2 -
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satisfaction of any and all claims that Seller may be entitled to assert by reason of any investigation, planning, precondemnation activity, as well as the value of any real property rights, severance damages, value of improvements pertaining to realty, if any, compensation for good will, if any, relocation expenses, if any, costs for precondemnation damages, interest, costs, disbursements and expenses incurred in connection with the acquisition of the Property and improvements pertaining to realty, if any and subsequent removal of any items retained by Seller.
3. Buyer’s Contingencies
3.1 Seller’s Delivery of Documents. Buyer’s obligation to purchase the Property is expressly contingent upon Seller delivering to Buyer all documents listed below in Seller’s possession (collectively “Preliminary Documents”). Seller’s failure to deliver the Preliminary Documents within five (5) days after the Effective Date will extend the Contingency Date as defined in section 3.2 by one (1) day for each day delivery of the Preliminary Document is delayed.
3.1.1 Preliminary Report. A preliminary title report (the “Preliminary Report”) dated no earlier than thirty (30) days before the Effective Date covering the Property and issued by Fidelity Title National Insurance Company (the “Title Company”), together with a legible copy of all exceptions to title shown in the Preliminary Report, including each document, map, and survey referred to in the Preliminary Report.
3.1.2 Surveys. A CLTA survey of the Property on the opening of escrow meeting the requirements of the most current edition of the Minimum Standard Detail Requirements for CLTA Surveys and copies of all other existing surveys of the Property in Seller’s possession (the “Survey”).
3.1.3 Excluded Documents. The Preliminary Documents shall not include any books, records, documents, or information on the corporate, financial, and accounting records of the operations of Seller as an entity (as opposed to records concerning the Property), regarding offers or inquiries made by third parties concerning the purchase of some or all of the Property or appraisals of the value of the Property that are attorney-client communications of Seller, that is Seller’s attorney’s work product, or that is not in the possession of Seller or persons under Seller’s control.
3.1.4 Contracts and Leases. Copies of any and all management, service, supply, equipment rental and other contracts or leases related to the operation of the Property which would survive the Closing Date, if any.
3.1.5 INTENTIONALLY DELETED
3.1.6 Materials Related to Condition of the Property. Environmental assessments of the Property if any.
3.1.7 Litigation Materials. All materials in Seller’s possession related to litigation that was pending or threatened during the last five (5) year period of Seller’s ownership of the Property, involving the Property or Seller on account of its ownership of the Property, including correspondence, complaints, court orders, settlements, and - 3 -
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judgments; provided Seller does not have to provide correspondence, complaints, court orders, settlements, or judgments related to or leading up to the Consent Judgment.
3.2 Buyer’s Approval of Preliminary Documents. Buyer’s obligation to purchase the Property is expressly contingent upon its approval, in Buyer’s sole discretion, of the matters disclosed in the Preliminary Documents. Buyer shall have thirty-five (35) days from the Effective Date (the “Contingency Date”) to review the Preliminary Documents and to decide whether to approve the matters disclosed in the Preliminary Documents. On or before the Contingency Date, Buyer shall deliver written notice to Seller either accepting the matters disclosed in the Preliminary Documents or terminating this Agreement. If Buyer fails to give such notice on or before the Contingency Date, Buyer shall be deemed to have elected to terminate this Agreement.
3.3 Approval of Title. Buyer’s obligation to purchase the Property is expressly contingent upon Buyer’s approval of the condition of title of the Property no later than five (5) days before the Contingency Date in accordance with the following procedure:
3.3.1 Permitted Exceptions. The following exceptions shown on the Preliminary Report (hereinafter referred to as “Permitted Exceptions”) are approved by Buyer: (a) exceptions for a lien for local real estate taxes and assessments not yet due or payable, including without limitation, special taxes under Government Code §§53311-53368.2 or installment assessments under Streets & Highways Code §§8500-8887; (b) the standard preprinted exceptions and exclusions of the Title Company, (c) any other exception for monetary liens, which Buyer does not object to by written notice to Seller (the “Buyer’s Lien Objection Notice”), or as otherwise provided in this Section. All exceptions of the Preliminary Title Report other than the Permitted Exceptions will be “Title Objections.” If Buyer fails to deliver Buyer’s Lien Objection Notice at least five (5) days before the Contingency Date, Buyer shall be deemed to have objected to each title exception shown in the Preliminary Report that is not otherwise a Permitted Exception.
3.3.2 Title Objections. With respect to any Title Objection arising or resulting from any act or omission of Seller, Seller shall have five (5) days after delivery of Buyer’s Lien Objection Notice, to give notice to Buyer in writing (the “Seller’s Lien Response Notice”), stating either (a) the manner in which Seller will remove or cure such Title Objection, or (b) that Seller shall not remove or cure such Title Objection. If Seller fails to deliver Seller’s Lien Response Notice within the time specified in this Section 3.3, Seller shall be deemed to have elected not to cure such Title Objection.
Notwithstanding any provision in this Agreement to the contrary, Seller agrees to remove all liens securing the payment of money that encumber the Property.
3.3.3 Seller Elects Not to Cure. If Seller elects not to cure or remove a Title Objection (or is deemed to have so elected), then Buyer shall have five (5) - 4 -
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days after delivery of Seller’s Lien Response Notice to deliver a written notice to Seller (the “Buyer’s Election Notice”) of Buyer’s election either to (a) proceed with the purchase of the Property, waive such Title Objection, and accept the exception shown in the Preliminary Title Report as a Permitted Exception, or (b) terminate this Agreement. If Buyer fails to deliver Buyer’s Election Notice within the time specified in this Section, Buyer shall be deemed to have elected to terminate this Agreement.
3.3.4 Nonmonetary Cure. If Seller elects to cure or remove a Title Objection, but the method specified for removing or curing the Title Objection is other than the payment of a specified sum of money, then Buyer shall have five (5) days after delivery of the Seller’s Lien Response Notice to deliver Buyer’s Election Notice specifying whether it elects to (a) proceed with the purchase of the Property, subject to Seller’s removal of the Title Objection as stated in Seller’s Lien Response Notice, or (b) terminate this Agreement.
If Buyer fails to deliver Buyer’s Election Notice within the time specified in this Section 3.3, Buyer shall be deemed to have elected to terminate this Agreement.
3.3.5 Additional Encumbrances. If any encumbrance or other exception to title arises or is discovered after the delivery of the Preliminary Report (an “Additional Encumbrance”), the party discovering such Additional Encumbrance shall promptly give written notice to the other. No later than five (5) days after delivery of the notice of such Additional Encumbrance, Buyer shall deliver a new Buyer’s Lien Notice to Seller specifying whether the Additional Encumbrance is a Title Objection or a Permitted Exception.
If Buyer objects to the Additional Encumbrance, the parties shall proceed in the same manner as set forth above for Title Objections arising from the Preliminary Report. If Buyer fails to deliver Buyer’s Election Notice within the Time specified in this Section, Buyer shall be deemed to have elected to terminate this Agreement.
3.3.6 Seller’s Failure to Remove Title Objection. If Seller is obligated or elects to cure or remove a Title Objection and fails to do so on or before the Closing Date or fails to show that it will be able to do so on Closing, then Seller shall be in default under this Agreement, and Buyer shall have all its rights and remedies provided by this Agreement. Seller shall not be in default if Seller has diligently attempted to cure/remove said Objection and Buyer agrees to extend the Closing by a reasonable amount of time to allow Seller to cure or remove the Objections. Notwithstanding anything contained herein to the contrary, Seller shall have no obligation to take any steps, bring any action or proceeding or incur any effort or expense whatsoever to cure any Title Objection. Notwithstanding any provision in this Agreement to the contrary, Seller shall cause to be removed as exceptions to Title any exceptions to Title created by Seller on or after the Effective Date of this Agreement and any judgments, mortgages and mechanic’s or materialmen’s liens filed against the Property due to work performed at the Property by Seller at Seller’s direction, provided (i) Seller shall have the right to adjourn the Closing Date for up to four (4) days in - 5 -
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order to effectuate same and (ii) such removal from Title may be effectuated, at Seller’s election, by having any such judgments, mortgages or liens bonded over or satisfied out of the Purchase Price at Closing, or by the delivery by Seller to the Title Company at Closing of an indemnity covering such judgments, mortgages or liens in a form reasonably acceptable to Buyer. Seller shall not take any action which creates an exception to Title or survey or causes any judgment, mortgage or other lien to be filed against the Property without the prior written consent of Buyer.
3.4 Review of Preliminary Documents and Physical Condition.
3.4.1 Due Diligence. Buyer’s obligation to purchase the Property is expressly conditioned on its approval, in its sole discretion, of the condition of the Property and all other matters concerning the Property, including without limitation economic, financial, and accounting matters relating to or affecting the Property or its value, and the physical and environmental condition of the Property. Buyer shall have until the Contingency Date to conduct or complete, to the extent not already conducted or completed by Buyer, such investigations as Buyer may choose (the “Due Diligence”) to determine, in its sole discretion, whether this contingency is met. On or before the Contingency Date, Buyer shall deliver written notice to Seller accepting the condition of the Property or terminating this Agreement. If Buyer fails to give such notice on or before the Contingency Date, Buyer shall be deemed to have elected to terminate this Agreement.
3.4.2 Access to Property. As part of its Due Diligence, Buyer may investigate matters relating to or affecting the Property or its value, and conduct inspections, tests, and studies with respect to the physical and environmental condition of the Property. Buyer and Buyer’s consultants, agents, engineers, inspectors, contractors, and employees (hereinafter referred to as “Buyer’s Representatives”) shall, to the extent they do not already have access, be given reasonable access to the Property during regular business hours for the purpose of performing such Due Diligence.
Buyer shall undertake the Due Diligence at its sole cost and expense, except as provided in herein. After the Contingency Date, Buyer shall be given reasonable access to the Property during regular business hours for the purpose of a final inspection of the Property prior to the Closing Date. Buyer shall indemnify, defend with counsel reasonably acceptable to Seller, and hold Seller harmless from all claims (including claims of lien for work or labor performed or materials or supplies furnished), demands, liabilities, losses, damages, costs, fees, and expenses, including Seller’s reasonable attorney fees, costs, and expenses, arising from the acts or activities of Buyer or Buyer’s Representatives in, on, or about the Property during or arising in connection with Buyer’s inspections of the Property.
4. Seller’s Preclosing Covenants
4.1 No Amendment or Agreements. On or after the Effective Date, Seller shall not (a) amend or waive any right under any Preliminary Document or - 6 -
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(b) enter into any lease or other agreement of any type affecting the Property, in each case that would survive the Closing Date, without Buyer’s prior written consent. Before the Contingency Date, Buyer may not unreasonably withhold its consent under this Section; after the Contingency Date, however, Buyer shall have sole discretion in all such matters.
4.2 Insurance. Through the Closing Date, Seller shall maintain its policies of self-insurance in full force and effect on the Property in an amount equal to the full replacement cost of the improvements, in any.
4.3 Maintenance and Operation. Seller, at its sole cost and expense, must operate the Property in substantially the same manner as it has operated the Property before the effective date and must maintain and keep the Property such on that on the Closing Date the Property is in at least as good condition and repair as on the Effective Date reasonable wear and tear accepted. Seller may not make any material alterations to the Property without Buyer’s prior written consent.
4.4 No Marketing. Seller agrees not to market, show or list the Property to any other prospective buyer during the term of this Agreement.
4.5 Access to Property. Buyer and Buyer’s Representatives, agents, and designees shall have the right at all reasonable times until Closing to enter the Property as provided herein.
4.6 Notification. Seller shall promptly notify Buyer of any material change in any condition with respect to the Property or of any material event or circumstance that makes any representation or warranty of Seller under this Agreement untrue or misleading.
5. Representations and Warranties
5.1 Seller’s Representations and Warranties. Seller hereby represents and warrants that each of the following is true as of the Effective Date and the Closing Date.
5.1.1 Legal Compliance. Seller has not received any written notices of any material violations of any building code or other law with respect to the Property which have not been corrected to the satisfaction of the issuer of the notice.
5.1.2 Compliance with Laws. Neither the Property nor its operation violate in any way any applicable law, ordinances, rules, regulations, judgments, order, or covenants, conditions and restrictions, whether federal, state, local, foreign or private.
5.1.3 Documents. All Preliminary Documents delivered to Buyer under Section 3, and all other documents delivered to Buyer by or on behalf of Seller, do not contain any untrue statement of material fact.
To Seller’s actual knowledge, the Preliminary Documents delivered - 7 -
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by Seller to Buyer are all the material documents concerning the Property in Seller’s possession or under its control.
5.1.4 Litigation. There is no pending or threatened litigation by any governmental authority or person against Seller relating to the Property that might, if it and all other pending and threatened litigation were adversely determined, result in a material adverse change in the Property or its operation or that challenges the validity of or otherwise materially adversely affects the transaction contemplated by this Agreement.
5.1.5 Other Proceedings. No attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending against Seller or Seller’s interest in the Property, nor are any such proceedings contemplated by Seller.
5.1.6 Due Authorization. This Agreement and the performance of Seller’s obligations under it and all documents executed by Seller that are to be delivered to Buyer at the Closing are, or on the Closing Date shall be, duly authorized, executed, and delivered by Seller and are, or at the Closing Date shall be binding obligations of Seller, and do not, and on the Closing Date shall not, violate any provision of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. No consent of any partner, shareholder, creditor, investor, judicial or administrative body, government agency, or other party is required for Seller to enter into or to perform Seller’s obligations under this Agreement, except as has already been obtained.
5.1.7 Title to the Property. Seller has good and marketable title to the Property subject to exceptions of record as may be disclosed by an inspection of the Property. Seller has no actual knowledge of any recorded or undisclosed legal or equitable interest in the Property owned or claimed by anyone other than Seller. Seller has no knowledge that anyone will, at the Closing, have any right to possession of the Property, except as disclosed by this Agreement or otherwise in writing to Buyer. There are no unsatisfied mechanics’ or materialmen's lien rights on the Property. No assessment lien or bond encumbers the Property, and no government authority has undertaken any action that could give rise to an assessment lien affecting the Property.
5.1.8 Personal Property. Seller has no knowledge that anyone will, at Closing, have any right to possession of any Personal Property including in the Purchase Price nor knowledge of any liens or encumbrances affecting such Personal Property, except as disclosed by this Agreement or otherwise in writing to Buyer.
5.1.9 Environmental Site Condition. To Seller’s actual knowledge - 8 -
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Seller has not received any written notice from any governmental authority that the Property or the use of the Property violates any Environmental Laws. The term “Environmental Laws” includes without limitation the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and
Liability Act, and all other federal, state and local laws governing the environment.
5.1.8 Foreign Person. Seller is not a foreign person and is a “United States Person” as such term is defined in §7701(a)(30) of the Internal Revenue Code of 1986, as amended.
5.1.9 No Leases. There are no leases or other agreements regarding use or occupancy of space in the Property that will be binding on the Property or Buyer following the Closing, Seller has not granted any party any right or option to acquire, possess or occupy the Property or any portion thereof or any right of first refusal, right of first offer or similar right, and Seller has not entered into any service or other agreements, equipment leasing contracts or other contracts relating to the Property which will be in force after the Closing, and Seller has no knowledge of any parties in possession or with claims to occupancy, use, or possession of the Property or any portion thereof.
5.1.10 No Contracts. There are no brokerage, leasing, listing, asset management, property management, service, utility, janitorial or maintenance contracts or agreements, or agreements for the provision of supplies or other goods, to which the Property is subject, and Seller is a party, which will be binding upon Buyer or the Property after the Closing.
5.1.11 Seller’s Knowledge. As used in this Agreement, the phrase, “Seller’s knowledge” will be limited to the actual knowledge of Bradley Calvert, Director of Community Development, without duty of inquiry or investigation into the matter so qualified. “Seller’s knowledge” will not be construed to refer to the knowledge of any other agent or employee or principal of Seller. The employee(s) of Seller with the primary responsibility for the matters that are the subject of these representations and warranties will have no personal liability to Buyer for any breach of any representation or warranty in this Agreement.
5.2 Buyer’s Representations and Warranties. Despite anything to the contrary in this Agreement, Buyer hereby warrants and represents that, as of the Effective Date, this Agreement and the performance of Buyer’s obligations under it and all the documents executed by Buyer that are to be delivered to Seller at the Closing are, or on the Closing Date shall be, duly authorized, executed, and delivered by Buyer and are, or at the Closing Date shall be, legal, valid, and binding obligations of Buyer, and do not, and on the Closing Date shall not, violate any provisions of any agreement or judicial order to which Buyer is a party or to which Buyer or the Property is subject.
Except for approval of Buyer’s Diocesan Council, no consent of any - 9 -
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partner, shareholder, creditor, investor, judicial or administrative body, government agency, or other party is required for Buyer to enter into or to perform Buyer’s obligations under this Agreement, except as has already been obtained. Buyer is a religious nonprofit California corporation, and is in good standing in the State of California.
5.3 Effect of Representations and Warranties. Each representation and warranty in this Agreement (a) is material and being relied upon by the party to which the representation and warranty is made; (b) is true in all respects as of the Effective Date; (c) shall be true in all respects on the Closing Date; and (d) shall survive the Closing, except as otherwise provided in this Agreement.
5.4 Survival of Seller’s Representations and Warranties and Limitation on Liability. The parties agree that (a) Seller’s warranties and representations in this Agreement and in any document executed by Seller under this Agreement with respect to the Property shall survive until the Closing Date, and (b) if Buyer fails to provide written notice to Seller of any breach of such warranties or representations by the Closing Date, Buyer shall be deemed to have waived all claims for breach of any representations and warranties with respect to the Property. Buyer’s sole remedies shall be termination of this Agreement and waiver of any further claims against Seller. In no event will Seller’s liability for damages to Buyer after the Closing exceed the $5,000.
5.5 “As is” Purchase. Subject to the approval or waiver of the Contingencies, Sellers pre-Closing obligations under Section 4, the Closing Conditions in Section 6, and as a material inducement to Seller’s execution and delivery of this Agreement and performance of its duties under this Agreement:
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, BUYER HAS AGREED TO ACCEPT POSSESSION OF
THE PROPERTY ON THE CLOSING DATE ON AN “AS IS” BASIS.
SELLER AND BUYER AGREE THAT THE PROPERTY SHALL BE
SOLD “AS IS, WHERE IS, WITH ALL FAULTS” AND ANY AND ALL
LATENT AND PATENT DEFECTS, WITH NO RIGHT OF SET OFF OR
REDUCTION IN PURCHASE PRICE, AND EXCEPT AS SET FORTH
IN SECTION 5 OF THIS AGREEMENT, SUCH SALE SHALL BE
WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION,
WARRANTY AS TO (A) FITNESS FOR ANY PARTICULAR
PURPOSE, (B) MERCHANTABILITY, (C) CONDITION,
(E) OPERATION OR INCOME, AND SELLER DISCLAIMS AND
RENOUNCES ANY SUCH REPRESENTATION OR WARRANTY.
5.6 Mutual Release. Except as provided in Section 5.4, effective from and after the Closing, Buyer hereby waives, releases, acquits, and forever discharges Seller and, and [its] their respective agents, affiliates, subsidiaries, successors and assigns (collectively, the “Releasees”) from any and all claims, actions, causes of action, demands, rights, liabilities, damages, losses, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, that it now has or that - 10 -
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may arise in the future because of or in any way growing out of or connected with this Agreement and the Property including without limitation the condition of the Property, except matters arising from Seller’s fraud or intentional misrepresentation. Except as provided in Section 5.4, Buyer expressly waives its rights granted under the provisions of any law that provides that a general release does not extend to claims that Buyer does not know or suspect to exist in its favor at the time of executing the release, which if known by it must have materially affected its agreement to release seller including, without limitation, California Civil Code section 1542 regarding the matters covered by a general release, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Buyer acknowledges that the foregoing acknowledgments, releases and waivers, including without limitation the waiver of the provisions of California Civil Code section 1542, were expressly bargained for.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
EFFECTIVE FROM AND AFTER THE CLOSING, SELLER HEREBY
WAIVES, RELEASES, ACQUITS AND FOREVER DISCHARGES
BUYER, ITS AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OF AND FROM
ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION,
DEMANDS, RIGHTS, LIABILITIES, DAMAGES, LOSSES, COSTS,
EXPENSES, OR COMPENSATION WHATSOEVER, DIRECT OR
INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN,
THAT IT NOW HAS OR THAT MAY ARISE IN THE FUTURE
BECAUSE OF OR IN ANY WAY GROWING OUT OF OR
CONNECTED WITH THIS AGREEMENT.
SELLER EXPRESSLY WAIVES IT RIGHTS GRANTED UNDER
CALIFORNIA CIVIL CODE §1542 AND ANY OTHER PROVISION OF
LAW THAT PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Buyer and Seller have each initialed this Section 5.6 to further indicate their awareness and acceptance of each and every provision of this Agreement. - 11 -
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The provisions of this Section 5.6 shall survive the Closing.
Seller’s Initials:_____________________________
Buyer’s Initials: _______________
6. Closing Conditions.
6.1 Buyer’s Closing Conditions. All obligations of Buyer under this Agreement are subject to the performance and satisfaction, before or at the Closing, of each of the following conditions (the “Buyer’s Closing Conditions”). Buyer’s Closing Conditions are solely for Buyer’s benefit and any or all of the Buyer’s Closing Conditions may be waived in writing by Buyer in whole or in part without prior notice.
6.1.1 Title. It is a Buyer’s Closing Condition that, on the Closing Date, Seller convey to Buyer insurable, fee simple title to the Property by execution and delivery of a grant deed (hereinafter referred to as the “Deed”), and cause to be delivered to Buyer from the Title Company an CLTA Policy of Title Insurance with liability in the full amount of the Purchase Price, insuring the title to Property in Buyer, subject only to the Permitted Exceptions, together with such endorsements described below or as may be reasonably requested by Buyer (“Title Policy”). Seller must deliver to the Title Company such instruments, documents, releases, and agreements and must perform such other acts as Title Company may reasonably require in order to issue the Title Policy. Indemnification of the Title Company to induce it to insure any otherwise unpermitted exception to title will not be allowed except with Buyer’s prior written consent after full disclosure to Buyer of the nature and substance of such exception and indemnity, which consent will not be reasonably withheld by Buyer for exceptions not material to marketable title to the Property.
6.1.2 Liens. Buyer must have received a certified report, with copies of all documents, satisfactory to Buyer and Buyer’s counsel, from the Title Company or a reputable lien search company indicating that there are not personal property liens of record on file with the Secretary of State of California, other than those that will be discharged at the Closing, as of a date no more than five (5) business days before the Closing Date, and a confirmation dated no more than three (3) business days before the Closing Date that no further liens have been filed since the date of the certified report. Also, Buyer must have received a verified report, satisfactory to the Buyer and Buyer’s counsel, from the Title Company or a reputable lien search company, indicating that there are not federal or state tax liens of record against the Property and on file with the respective agencies as of a date no more than ten (10) business days before the closing date.
6.1.3. Seller’s Representations, Warranties, and Covenants. The representations and warranties of Seller in this Agreement must be true in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date. - 12 -
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Seller must have performed and complied with all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it before or on the Closing Date. Buyer must have been furnished with a certificate of Seller dated as of the Closing Date, certifying to the fulfillment of the foregoing conditions. Such certificate shall have the effect of a representation and warranty of Seller made on and as of the Closing Date.
6.1.4 Closing Documents. Seller must have delivered to Escrow the documents and funds it is required to deliver through Escrow at Closing.
6.1.5 Adverse Actions. Other than those matters already disclosed by Seller to Buyer, there shall exist no other actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings, pending or threatened, against the Seller or regarding the Property that would materially and adversely affect the Seller’s ability to perform its obligations under this Agreement or Buyer’s title to the Property and there shall exist no pending or threatened action, suit or proceeding regarding Seller before or by any court or administrative agency that seeks to restrain or prohibit this Agreement or the consummation of the transactions contemplated by this Agreement.
6.1.6 Hazardous Material. No Hazardous Materials shall have been discovered on the Property after the Contingency Date that were not previously disclosed to Buyer or discovered by Buyer before the Contingency Date.
6.1.7 No Material Changes. No event shall have occurred, nor shall any condition have arisen after the Contingency Date that as of the Closing Date materially and adversely affects all or any part of the Property or its current operation, use, value, income, expenses, or occupancy.
6.1.8 Consents. All necessary agreements and consents of all parties to consummate the transaction contemplated by this Agreement shall have been obtained and furnished by Seller to Buyer.
6.2 Seller’s Closing Conditions. Seller’s obligation to sell the Property is expressly conditioned on the performance and satisfaction of each condition precedent at or before the Closing (the “Seller’s Closing Conditions”). Seller’s Closing Conditions are solely for Sellers’ benefit and any of Seller’s Closing Conditions may be waived in writing by Seller in whole or in part without prior notice.
6.2.1 Approval of Contingencies. It is a Seller’s Closing Condition that Buyer must have acknowledged its approval or waiver of all Contingencies as required under Article 3.
6.2.2. Purchase Price. Buyer must have delivered the Purchase Price to Escrow for payment to Seller via wire instructions to be delivered by Seller to Escrow prior to Closing.
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6.2.3. Delivery of Closing Documents and Funds. Buyer must have delivered to Escrow the documents, the Purchase Price and any funds required to close the escrow hereunder.
6.2.4. Buyer’s Representations, Warranties, and Covenants. The representations and warranties of Buyer in this Agreement must be true in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date.
Buyer must have performed and complied with all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it before or on the Closing Date. Seller must have been furnished with a certificate of Buyer dated as of the Closing Date, certifying to the fulfillment of the foregoing conditions. Such certificate shall have the effect of a representation and warranty of Buyer made on and as of the Closing Date.
6.2.5 Consents. All necessary agreements and consents of all parties to consummate the transaction contemplated by this Agreement shall have been obtained and furnished by Buyer to Seller.
6.3. Termination for Failure of a Condition. If Buyer’s Closing Conditions or Seller’s Closing Conditions, as the case may be, have not been previously approved or waived, then, the party in whose favor the Closing Condition runs may, in its sole discretion and as its sole remedy, terminate this Agreement by five (5) days written notice to the other, or elect to close, notwithstanding the non-satisfaction of such Closing Condition, thereby waiving satisfaction of such Closing Condition. If this Agreement is so terminated, the parties shall have no further obligation or liability under this Agreement. Any cancellation fee or other costs of the Escrow Holder and Title Company shall be borne equally by Seller and Buyer and each party shall pay its own expenses.
7. Closing
7.1 Escrow. The Escrow shall be opened with the Escrow Holder on the execution of this Agreement. Buyer and Seller shall promptly on the Escrow Holder’s request execute such additional escrow instructions as are reasonably required to consummate the transaction contemplated by this Agreement and are not inconsistent with this Agreement.
7.2. Closing Definitions.
7.2.1. Closing. The “Closing” means the exchange of money and documents as described in this Section 7, and shall be deemed to have occurred when Seller’s Deed to Buyer has been recorded, the Escrow Holder holds and can record and deliver the remaining documents described in this Section, the Title Company is irrevocably and unconditionally committed to issue the Title Policy, and Buyer has delivered the Purchase Price in immediately available funds to Escrow Holder.
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7.2.2. Closing Date. Seller and Buyer agree that the Closing shall occur on the “Closing Date”. The Closing Date shall be a date mutually agreeable to Buyer and Seller that is no later than sixty (60) days after the Contingency Date. If the Closing has not occurred within sixty (60) days after the Contingency Date, then subject to Section 6.3 either party may elect to terminate this Agreement and neither party will have any obligations to the other except on account of any breach of this Agreement. The Closing shall be at the offices of Escrow Holder or such other place as the parties may agree.
7.3. Seller’s Deposit of Documents and Funds. Seller must deposit into Escrow the following documents duly executed by Seller in form and substance reasonably satisfactory to Buyer:
7.3.1. Deed. The Grant Deed duly executed and acknowledged by Seller conveying the Property to Buyer, subject only to the Permitted Exceptions;
7.3.2. Non-foreign Certification. Certificates required by §1445 of the Internal Revenue Code of 1986, and the California Revenue and Taxation Code §18815, executed by Seller and in a form satisfactory to Buyer (the “Non-foreign Certification”), to relieve Buyer of any potential transferee’s withholding liability under such statutes;
7.3.3. Seller’s Proof of Power and Authority. Such proof of Seller’s authority and authorization to enter into and perform under this Agreement, and such proof of power and authority of the individuals executing or delivering any instruments, documents, or certificates on behalf of Seller to act for and bind Seller as may reasonably be required by Buyer or the Escrow Holder; and
7.3.4. Additional Documents. Such additional documents, including written Escrow instructions consistent with this Agreement, as may be necessary or desirable to convey the Property in accordance with this Agreement.
7.4. Buyer’s Deposit of Documents. Buyer must deposit into Escrow the following documents duly executed by Buyer in form and substance reasonably satisfactory to Seller:
7.4.1. Buyer’s Proof of Power and Authority. Such proof of Buyer’s authority and authorization to enter into and perform under this Agreement, and such proof of power and authority of the individuals executing or delivering any instruments, documents, or certificates on behalf of Buyer to act for and bind Buyer as may reasonably be required by Seller and the Escrow Holder; and
7.4.2. Conveyance Documents. Such documents, including written Escrow instructions consistent with this Agreement, as may be necessary or - 15 -
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desirable for conveyance of the Property in accordance with this Agreement.
7.4.3 Purchase Price. The Purchase Price plus or minus applicable prorations as provided in this Agreement, in immediate, same-day U.S. federal funds wired for credit into Escrow Holder’s escrow account.
7.5. Closing. When the Escrow Holder receives all documents and funds identified in Sections 7.3 and 7.4, and the Title Company is ready, willing, and able to issue the Title Policy, then, and only then, the Escrow Holder shall close Escrow by:
7.5.1. Recording the Deed;
7.5.2. Issuing the Title Policy to Buyer;
7.5.3. Delivering to Buyer the Non-foreign Certification, copies of all recorded documents related to the transfer or encumbering of the Property, and a copy of Seller’s Escrow instructions;
7.5.4. Paying the Purchase Price through escrow, plus or minus prorations, if any; and
7.5.5. Thereafter, Escrow Holder shall deliver signed closing statements showing all receipts and disbursements to Buyer and Seller and shall file with the Internal Revenue Service (with copies to Buyer and Seller) the reporting statement required under Internal Revenue Code §6045(e).
7.6 Closing Costs.
7.6.1. Escrow costs shall be shared equally by Seller and Buyer;
7.6.2. Buyer shall pay the cost of the Title Policy and Survey;
7.6.3. Buyer shall pay the cost of recording the Deed;
7.6.4. Buyer shall pay any sales tax;
7.6.5. The documentary transfer tax and any municipal transfer tax shall be paid by Seller.
7.7 Risk of Loss. The Closing shall be effective as of 12:01 a.m. Pacific Time on the Closing Date. Notwithstanding the foregoing, the risk of loss of all or any portion of the Property shall be borne by Seller up to and including the actual time of the Closing and completion of the wire transfer of the Purchase Price to Seller, and thereafter by Buyer, subject, however, to the terms and conditions of Section 7.7.1 below.
7.7.1 Seller shall promptly give Buyer written notice of any damage to the Land or the Improvements of which Seller is aware, describing such damage, and the Seller’s estimate of time to repair such damage. If such damage is not - 16 -
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material, as defined below, then this Agreement shall remain in full force and effect and at Closing Buyer shall receive an assignment of the insurance proceeds relating to such damage and a credit for any deductible applicable to such insurance coverage and repair of such damage. If such damage is material, Buyer may elect by notice to Seller given within 10 days after Buyer is notified of such damage (and the Closing shall be extended, if necessary, to give Buyer such 10-day period to respond to such notice) to proceed in the same manner as in the case of damage that is not material or to terminate this Agreement. Damage as to any one or multiple occurrences is “material” if in the reasonably exercised judgment of Seller, it will take more than six (6) months after Closing to repair.
8. Remedies for Default
8.1. Default. Buyer or Seller shall be deemed to be in default under this Agreement if either such party fails, for any reason other than the other party’s default under this Agreement or the failure of a condition precedent to such party’s obligation to perform under this Agreement, to meet, comply with, or perform any covenant, agreement, or obligation required on its part within the time limits and in the manner required in this Agreement, or a material breach shall have occurred of any representation or warranty (made by such party) by reason of such party’s actual fraud or intentional misrepresentation; provided, however, that no such default shall be deemed to have occurred unless and until the other party has given the defaulting party written notice of the default, describing the nature of the default, and the defaulting party has failed to cure such default within five (5) days after the receipt of such notice (but in any event before the Closing Date). IN NO
EVENT SHALL SELLER, AND ITS RESPECTIVE AGENTS,
AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS BE
LIABLE TO BUYER FOR ANY ACTUAL, PUNITIVE, SPECULATIVE,
CONSEQUENTIAL OR OTHER DAMAGES FOR A DEFAULT UNDER
THIS AGREEMENT.
8.2 Default by Seller. To the extent Buyer is entitled under the terms of this Agreement to seek damages due to the breach by Seller thereof, Seller’s liability for breach of any such covenant, indemnity, representation or warranty with respect to the Property shall be limited to claims in excess of an aggregate of FIVE THOUSAND DOLLARS ($5,000.), and Seller shall be liable only to the extent that such aggregate exceeds such figure. Seller’s aggregate liability for claims arising out of such covenants, indemnities, representations and warranties with respect to the Property shall not exceed Five Thousand Dollars ($5,000) (the “Damage Limit”). Buyer shall provide written notice to Seller prior to the date which is six (6) months after the Closing Date (the “Limitation Period”) of any alleged breach of such covenants, indemnities, warranties or representations and shall allow Seller thirty (30) days within which to cure such breach, or, if such breach cannot reasonably be cured within thirty (30) days, an additional reasonable time period, so long as such cure has been commenced within such thirty (30) days and is being diligently pursued. If Seller fails to cure such breach after written notice and within such cure period, Buyer’s sole remedy shall be an - 17 -
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action at law for actual damages as a consequence thereof, and any permitted remedies hereunder must be commenced, if at all, within the Limitation Period. The Limitation Period referred to herein shall apply to known, as well as unknown, breaches of such covenants, indemnities, warranties or representations. Buyer specifically acknowledges that such termination of liability represents a material element of the consideration to Seller.
9. General.
9.1. Notices. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally by a generally recognized overnight courier service, received by the other party when sent via United States mail certified or registered, return receipt requested, with postage prepaid, or send via email with confirmation of receipt by recipient, and addressed as follows:
If to Seller:
City of Glendale
613 E. Broadway, Suite ____
Glendale, CA 91206-4387
Attn: __________________
Phone: (818) ___________
with a copy to:
Gillian van Muyden,
Chief Assistant City Attorney
City Attorney’s Office
City of Glendale
613 E. Broadway, Suite 220
Glendale, CA 91040
[email protected]
Phone: (818) 548-2080
If to Buyer:
with a copy to:
with a copy to:
Escrow Holder: ____________________
Title Company: ____________________
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9.2 Entire Agreement. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included therein and may not be contradicted by evidence of any prior or contemporaneous agreement. This Agreement specifically supersedes any prior written or oral agreements between the parties. The language in all parts of this Agreement shall be construed as a whole in accordance with its fair meaning and without regard to California Civil Code §1654 or similar statues. Neither party has been induced to enter into this Agreement by, and neither party is relying on, any representation or warranty outside of those expressly set forth in this Agreement.
9.3 Amendments and Waivers. No addition to or modification of this Agreement shall be effective unless it is made in writing and signed by the party against whom the addition or modification is sought to be enforced. The party benefitted by any condition or obligation may waive the same, but such waiver shall not be enforceable by another party unless it is made in writing and signed by the waiving party.
9.4 Invalidity of Provision. If any provision of this Agreement as applied to either party or to any circumstance is adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, this fact shall in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
9.5 No Merger. This Agreement, each provision of it, and all warranties and representations in this Agreement shall survive the Closing and shall not merge in any instrument conveying title to Buyer. All representation, warranties, agreements, and obligations of the parties shall, despite any investigation made by any party to this Agreement, survive Closing for the Limitation Period, and the same shall inure to the benefit of and be binding on the parties’ respective assessors and assigns.
9.6 References. Unless otherwise indicated, (a) all article and section references are to the articles and sections of this Agreement, and (b) except where otherwise stated, all references to days are to calendar days. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls on a Saturday, Sunday, or California state holiday, such time for performance shall be extended to the next business day. “Business Days” means days other than Saturday, Sunday, and California state holidays. The headings used in the Agreement are provided for convenience only and this Agreement shall be interpreted without reference to any headings. The date of the Agreement is for reference purposes only and is not necessarily the date on which it was entered into.
9.7 Governing Law. This Agreement shall be governed by the laws of the State of California applicable to contracts made by residents of the State of California and to be performed in California.
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respective obligations under this Agreement.
9.9 Attorney Fees. In the event of any action or proceeding to enforce a term or condition of this Agreement, any alleged disputes, breaches, defaults, or misrepresentations in connection with any provision of this Agreement or any action or proceeding in any way arising from this Agreement, the prevailing party in such action shall be entitled to recover its reasonable costs and expense, including without limitation reasonable attorney fees and costs of defense paid or incurred in good faith. The “prevailing party” for purposes of this Agreement, shall be deemed to be that party who obtains substantially the result sought, whether by settlement, dismissal, or judgment.
9.10. Assignment. This Agreement will inure to the benefit of and be binding on the parties to this Agreement and their respective successors and assigns. Buyer will have the right to assign all or any portion of its interest in this Agreement, provided that Buyer gives written notice of such assignment to Seller before the Closing Date.
9.11. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any party to this Agreement or give any third person any right of subrogation or action over or against any party to this Agreement.
9.12. Remedies Cumulative. The remedies set forth in this Agreement are cumulative and not exclusive to any other legal or equitable remedy available to a party, except where limited herein.
9.14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
9.15 Confidentiality. Buyer and Seller agree to hold all communications concerning the transaction which is the subject of this Agreement as confidential. No documents, materials or any information concerning this transaction shall be disseminated by either party except for those persons specifically authorized in writing by the Buyer or Seller to do so in support of this transaction. [SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Seller: City of Glendale, a Municipal Corporation
By: __________________________
Roubik Golanian,
City Manager
Approved as to Form:
MICHAEL J. GARCIA, CITY ATTORNEY
By: ____________________________
Gillian van Muyden
Chief Assistant City Attorney
Buyer: Western Diocese of the Armenian Church of North America, a ____________ By: __________________________________
Approved as to Form:
By: ___________________________
Name:
Title:
CONSENT OF ESCROW HOLDER
__________________Title Company (the Escrow Holder) accepts the foregoing Agreement for Purchase and Sale of Real Property and Joint Escrow Instructions as escrow instructions, agrees to act as escrow holder and agrees to be bound by its provisions applicable to it as Escrow Holder.
Date: _____________________________
By: _______________________________
Name: ____________________________
Title: ____________________________
EXHIBIT “A”
LEGAL DESCRIPTION
[_____]