1 AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
(Property formerly designated as 12843 Norwalk Boulevard, Norwalk, CA 90650)
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (“Agreement”), is dated as of _____________, 2023, is made by and between the City of Norwalk, a municipal corporation (“Seller” or “City ”), and Wilshire Group Funding, Inc , a California Corporation (“Buyer”). Buyer and Seller are referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Seller is the fee owner of approximately 19,098 square feet of real property formerly referred to as 12843 Norwalk Boulevard in the City of Norwalk, Los Angeles County, California, and designated at the time of this Agreement, as Assessor’s Parcel Number 8047-005- 903 and more particularly described in the Legal Description attached as Exhibit “A,” and as shown on Exhibit “B” attached hereto and incorporated herein, including a ll improvements located thereon, and all rights, privileges, easements and appurtenances thereto, if any, and all rights, title and interest in and to all minerals, oil, gas and other hydrocarbon substances, development rights and water stock relating thereto (the “Property”).
B. The Parties were previously involved in litigation concerning the Property as alleged in the Verified Petition for Writ Mandate, Los Angeles Superior Court Action No. 19STCP00288 filed by Buyer against Seller on January 29, 2019 , alleging among other things, that Seller is required to offer a right of first refusal to purchase the Property pursuant to California Code of Civil Procedures Section 1245.245 (the “Action”).
C. During the course of the Action, the Parties entered into that certain Settlement and Tolling Agreement dated July 24, 2020 containing the agreed upon terms to resolve the issues set forth in the Action and to avoid the need for further expenditure of resources in the Action (the “Settlement Agreement”), whereby the Seller agrees to sell the Property to the Buyer in accordance with California Code of Civil Procedure Section 1245.245.
D. Pursuant to the terms of the Settlement Agreement, the Parties conducted independent appraisals of the Property and reached an a greed upon sales price as set forth in this Agreement below.
E. Seller desires to sell the Property to Buyer and Buyer desires to purchase the Property under the terms and conditions contained in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Sale of Property; Purchase Price.
1.1 Sale of Property. Seller shall sell to Buyer and Buyer shall purchase from Seller the Property at the price and upon the terms and conditions set forth in this Agreement.
Attachment No. 2
2 1.2 No Sale of Personal Property . Buyer acknowledge s that no personal property is being conveyed to Buyer pursuant to this Agreement.
1.3 Purchase Price. Buyer shall pay to Seller the total purchase price for the Property of Seven Hundred and Fifty Thousand and 00/100 Dollars ($ 750,000.00) (the "Purchase Price"), which constitutes the fair market value of the Property as of April 15, 2018 free and clear of all liens and encumbrances except those identified in Section 2.3.1 (a)-(c), infra. The Purchase Price shall be paid as follows:
(a) Within ten (10) days of the Opening of Escrow, Buyer shall deposit the sum of Fifty Thousand Dollars ($50,000) into Escrow (as defined in Section 2 below) as a good faith deposit (“Earnest Money Deposit”).
(b) The balance of the Purchase Price and such other sums as may be increased or decreased in account of any additional deposits, prorations, credits, or other adjustments as may be required by this Agreement shall be deposited before the Close of Escrow.
1.4 Liquidated Damages.
If through default Buyer fails or refuses to complete the transfer of title to the Property, to which Seller is prepared to deliver insurable title free and clear of all encumbrances in accordance with the terms and conditions of this Agreement, if such default is not cured within thirty (30) days of Buyer’s receipt of Seller’s written notice thereof, this Agreement may be terminated at the sole option of Seller, and the parties agree that (1) Seller shall draw down on Buyer’s Earnest Money Deposit as liquidated damages in an amount of Five Hundred Dollars ($500). It is understood and agreed that such liquidated damages amount represents Seller's reasonable estimate of actual damages and does not constitute a penalty. Recovery of liquidated damages shall be the sole and exclusive remedy of Seller against Buyer for failing to consummate this Agreement as a result of Buyer's breach hereof, and shall be applicable regardless of the actual amount of damages sustained and all other remedies are deemed waived by Seller.
2. Escrow; Closing Conditions.
2.1 Opening of Escrow; Escrow Instructions.
2.1.1 Opening of Escrow. Within ten (10) business day after the execution of this Agreement by the parties, Buyer and Seller shall open an escrow (the "Escrow") with Wilshire Escrow – Leslie Lim located at 4270 Wilshire Blvd., Los Angeles, California 90010 (“Escrow Holder”). The actual date of the deposit of a fully executed original of this Agreement with Escrow Holder shall constitute the opening of Escrow (the "Opening of Escrow").
2.1.2 Escrow Instructions. This Agreement constitutes the joint basic escrow instructions of Buyer and Seller for conveyance of the Property. Buyer and Seller shall execute, deliver, and be bound by any reasonable or customary supplemental or additional escrow instructions (“Additional Instructions”) of the Title Company or other instruments as may be
3 reasonably required by the Title Company in order to consummate the transaction contemplated by this Agreement, provided they do not conflict with, amend, or supe rsede any portions of this Agreement, unless consented or agreed to in writing by Seller and Buyer. In the event of any conflict o r any inconsistency between this Agreement and such Additional Instructions, this Agreement shall govern unless otherwise specifically agreed to in writing by the Parties.
2.2 Closing of Escrow. For purposes of this Agreement, “Close of Escrow” or “Closing” means the recordation in the Official Records of the County of Los Angeles, California of the grant deed (the “Grant Deed ”) in the form attached hereto as Exhibit “C” and the disbursement of the funds and distribution or recording of any other documents by Title Company, all as described herein. Subject to the satisfaction of the conditions to closing set forth in Sections
2.9 and 2.10 below, Close of Escrow shall occur upon the following: (i) thirty (30) days following the approval of Buyer’s Entitlements (as defined in Section 2.9.3) by the City of Norwalk and the California Department of Transportation (“Caltrans”) (if applicable) and all applicable appeal periods have expired, and (ii) the expiration of the Due Diligence period set forth in Section 2.3.2.
Buyer may elect to close escrow sooner and will provide at least a ten (10) day written notice to Seller. If the Close of Escrow does not occur, this Agreement shall terminate and the Earnest Money Deposit shall be returned to Buyer, and each Party shall pay one-half (1/2) of any Escrow cancellation charges.
2.3 Condition of Title; Title Policy; Due Diligence.
2.3.1 Condition of Title; Permitted Exceptions. Seller shall convey title to the Property to Buyer by a grant deed in the form attached hereto as Exhibit “B”. At the Close of Escrow, First American Title Company – Summer Hale located at 18500 Von Karman Ave., Irvine, California 92612 (the "Title Company") shall issue through Escrow an Owner's Policy of Title Insurance (the "Title Policy") with CLTA coverage, unless Buyer elects ALTA coverage and pays the additional cost of suc h coverage pursuant to Paragraph 2.4.2 below, in which event the Title Company shall issue the Title Policy with ALTA coverage, with liability in the amount of the Purchase Price, insuring fee title to the Property vested in Buyer, subject only to the following exceptions (the "Permitted Exceptions"):
(a) The standard printed exceptions set forth in the Title Policy.
(b) A lien to secure payment of general and special real property taxes and assessments that accrue from and after the Close of Escrow.
(c) A lien of s upplemental taxes assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code accruing on or after the Close of Escrow.
(d) Matters affecting the condition of title created by or with the consent of the Buyer.
(e) Other exceptions to title disclosed by the Title Report that have been approved in writing by Buyer prior to the Close of Escrow.
4 2.3.2 Buyer shall have a period of sixty (60) days from the Opening of Escrow to approve title to the Property and the cond ition of the Property and all things in any way related to the Property in its sole and absolute discretion (“Due Diligence Period”). The Closing shall be contingent upon Buyer’s inspection and written approval (or objection) of the condition of the Property and title to the Property. If Buyer fails to give such written notice of approval or objection within the Due Diligence Period, Buyer shall be deemed to have approved title to the Property and the condition of the Property and all things in any way related to the Property.
2.3.3 Buyer shall bear the cost of a Preliminary Environmental Assessment to be ordered by the Buyer during the Due Diligence period. At the close of escrow, Buyer shall be credited for any remediation costs and expenses that arise from any environmental issues or contamination related to the premises.
2.4 Costs.
2.4.1 Escrow Holder's fees with respect to the Escrow shall be paid by Buyer and Seller equally.
2.4.2 Seller shall pay the premium for a CLTA Standard Policy of Title Insurance. The additional cost for an ALTA Owner's Policy, if selected by Buyer, and any endorsements to the Title Policy requested by Buyer shall be paid for by Buyer. Buyer shall pay all costs and expenses, if any, incurred in connection with obtaining a survey of the Property.
2.4.3 All expenses and charges incurred in connection with the discharge of delinquent taxes, if any, or monetary liens or monetary encumbrances on the Property, other than (a) those created by or mad e through Buyer, (b) bonds, taxes and assessments payable over time, except to the extent payable by Seller under Subparagraph 2.4.4 below, (c) interests granting royalties to third parties, (d) liens arising out of any legal proceedings encumbering the Pr operty, notwithstanding the fact that such liens could be discharged by the payment of money, and (e) any exception to title that cannot expressly, by its terms, be discharged by payment of money, shall be paid by Seller.
2.4.4 All installments of bonds, special taxes or assessments which are a lien on the Property and due and payable in full prior to the time of Closing shall be prorated in the manner set forth in Paragraph 2.8 below; provided, however, that in determining any amount payable by Seller, such assessments shall be amortized over the longest period of time permitted by the taxing authority to make such payment, even if the assessment is assessed as a lump sum.
2.4.5 Each party shall be responsible for payment of the fees and expenses of its counsel relating to this Agreement and the transactions contemplated hereby.
2.4.6 Any city or county documentary or transfer taxes and recording fees shall be paid by Seller.
5 2.4.7 Any other closing costs or charges shall be paid by Buyer and Seller equally.
2.5 Deposit of Documents by Seller. Seller shall deposit with Escrow Holder the following items no later than one (1) business days prior to the Closing Date, duly executed and acknowledged where required:
2.5.1 The Grant Deed, executed by Seller and acknowledged.
2.5.2 A certification, duly executed by Seller under penalty of perjury in the form of, and upon the terms set forth in, the Transferor’s Certification of Non -Foreign Status (“FIRPTA Certificate).
2.5.3 An owner’s affidavit, in a form and substance acceptable to the Title Company.
2.5.4 To the extent not previously delivered to Buyer, originals of any leases, any contracts relating to the Property, certificates of occupancy, governmental approvals, and any other d ocuments, instruments or agreements reasonably necessary to effectuate the transaction contemplated by this Agreement to the extent any such documents are in Seller's possession.
2.5.5 All other documents as may reasonably be required by Escrow Holder or the Title Company to close the Escrow in accordance with this Agreement.
2.6 Deposit of Documents and Funds by Buyer . Buyer shall deposit with Escrow Holder the following items no later than one (1) business days prior to the Closing Date, duly executed and acknowledged where required:
2.6.1 The Purchase Price plus such additional funds required to pay Buyer's costs and prorations as provided in Paragraph 2.4 above and Paragraph 2.8 below, less any credits Buyer is entitled to hereunder, including, but not limited to, the reimbursement of 50% of the ALTA survey fees, in the amount of $2,275.00.
2.6.2 All other documents as may be reasonably required by Escrow Holder or the Title Company to close the Escrow in accordance with this Agreement.
2.7 Delivery of Documents and Funds at Closing . Upon Closing, Title Company and Escrow Holder, as applicable, are authorized and instructed to:
2.7.1 Deliver to Seller on the Closing Date immediately available funds in the sum of the Balance, and such other funds, if any, due Seller by reason of prorations, less Seller's closing costs and prorations, if any, as provided in Paragraph 2.4 above and Paragraph 2.8 below, and any credits Buyer is entitled to hereunder.
2.7.2 Pay, and charge Buyer and Seller, respectively, for any fees, charges, and costs payable under this Agreement. Before such payments are made, Escrow Holder
6 shall notify Buyer and Seller of the fees, charges, and costs necessary to clear title and close Escrow, all of which shall be reflected on the closing statement at Closing.
2.7.3 Record the Grant Deed in the Office of the County Recorder of Los Angeles County and any other instruments as appropriate, delivered through Escrow.
2.7.4 Obtain and deliver the original Title Policy to Buyer and a copy to Seller.
2.7.5 Disburse such other funds and deliver such other documents to the Parties is entitled thereto.
2.7.6 Cause the Title Policy to be issued.
2.8 Prorations.
2.8.1 Taxes. Escrow Holder shall prorate on a 365 -day basis the ad valorem taxes on the Property for the current fiscal year and all installments of bonds, special taxes, and assessments payable over time as of the Close of Escrow based upon the most current real estate tax information available. Buyer shall assum e and shall pay all taxes and assessments (including all roll -back taxes and assessments) levied or assessed against any portion of the Property as the result of a change in the use or ownership of the Property occurring from and after the Closing Date
2.8.2 Utilities. Escrow Holder shall prorate through Escrow, on a 365 - day basis, all water, gas, electric and other utility services, if any, on the Property.
2.9 Buyer's Conditions to Closing. Buyer shall not be obligated to proceed to the Close of Esc row and the Closing shall not occur unless and until, in addition to all other conditions contained in this Agreement, the following conditions have been satisfied or waived in writing by Buyer:
2.9.1 Title Report. Promptly following the execution of thi s Agreement by Buyer and Seller, the Title Company shall have delivered to Buyer a preliminary title report issued by the Title Company (the "Preliminary Report") for the Property (as well as copies of all title documents referred to therein). Closing shall be contingent upon Buyer’s approval of the Title Report and the title of the Property during the Due Diligence Period. For any exceptions to title noted in the Preliminary Report not referenced in Section 2.3.1 (a) -(c), supra, Seller will use its best efforts to remove any clouds on title prior to the Closing.
2.9.2 Issuance of Title Policy. The Title Company shall have issued the Title Policy as of the Close of Escrow.
2.9.3 All entitlements applied for by Buyer for the development of the Property as listed in Exhibit “D,” attached hereto and incorporated herein (collectively “Buyer’s Entitlements”), have been approved by the City of Norwalk Planning Commission and/or City
7 Council and Caltrans under the California Outdoor Advertising Act (if applicable) and all applicable appeal periods have expired.
2.9.4 The City of Norwalk City Council shall have, at a duly noticed public meeting, adopted a resolution declaring the Property “Exempt Surplus Land” in accordance with the requirements of the California Surplus Land Act and transmitted the resolution to the California Department of Housing and Community Development at least 30 days prior to the Closing.
2.10 Seller's Conditions to Closing . Seller shall not be obligated to proceed to the Close of Escrow and the Closing shall not occur unless and until, in add ition to all other conditions contained in this Agreement, the following conditions have been satisfied or waived in writing by Seller:
2.10.1 Performance of Obligations. At or prior to the Closing Date, Buyer shall have performed all of Buyer's obligations herein that are to be performed prior to the Closing as required under this Agreement.
2.10.2 Buyer has paid to City all applicable and constitutional development impact fees, processing and permit fees, and costs as established under the City’s maste r fee schedule in effect as of the date of this Agreement as indicated on the first page of this Agreement in connection with Buyer’s Entitlements.
2.10.3 The City of Norwalk City Council shall have, at a duly noticed public meeting, adopted a resolution declaring the Property “Exempt Surplus Land” in accordance with the requirements of the California Surplus Land Act and transmitted the resolution to the California Department of Housing and Community Development at least 30 days prior to the Closing.
2.10.4 The representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects as of the Close of Escrow.
2.11 Waiver. It is hereby understood that the conditions set forth in Paragraph s
2.9 and 2.10 above are for the benefit of Buyer and Seller, respectively and may be waived by either party in writing delivered to the other party and Escrow Holder. In satisfying the conditions in Paragraphs 2.9 and 2.10, Seller and Buyer shall each exercise good faith, reasonableness, and diligence. However, decisions authorized to be made in the sole discretion of either Buyer or Seller shall be final and not subject to review or challenge on any basis.
2.12 Termination. Upon any termination of this Agreement and the Escrow (if applicable) for any reason, other than either party's default hereunder, (i) each party shall execute such documents as Escrow Holder may reasonably require to evidence such termination, (ii) Escrow Holder shall charge its fees and expenses to both parties equally, (iii) subject to the provisions of Subparagraph (ii) above, Escrow Holder shall return all documents and funds to the party who deposited them, (iv) , and (vii) all obligations of either party relating to this Agreement and the Property shall terminate.
8 3. Seller's Representations and Warranties . Subject to the limitations set forth under Section 5 of this Agreement, S eller hereby represents and warrants to Buyer that, unless otherwise provided, at the date of execution hereof and at and as of the Closing Date:
3.1 Seller is a California municipal corporation and has the legal capacity to understand and authority, under the laws of the State of California, California Constitution, and the Norwalk Municipal Code, to execute this Agreement and all documents in connection therewith.
3.2 Seller is not a "foreign person" within the meaning of Internal Revenue Code §1445.
3.3 If Buyer believes or asserts that any representation or warranty set forth in this Paragraph 3 is not true or complete, it must commence an action or proceeding with respect to the truth, accuracy, or completeness of any representation or warranty of Seller, if at all, within six (6) months after the Close of Escrow.
3.4 Seller has not knowingly released or has knowledge of any release of any hazardous substance on the Property during the period of Seller's ownership of the Property. The term “hazardous substances”, as used in this agreement, shall mean pollutants, contaminates, toxic or hazardous waste, medical or infectious waste, reactive substances, that could explode, or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any “environmental law,” which term shall mean any federal, state or local law or ordinance relating to pollution or protection of the environment. As Buyer has already performed a Phase 1 assessment and a Phase 2 assessment is recommended thereby, Seller shall pay for such an assessment to be performed during the due diligence period.
3.5 Seller is unaware of any pending or threatened litigation with regard to Property, or any injuries that have occurred on the Property during the period of its ownership that might result in any premises liability.
4. Buyer's Repr esentations and Warranties . Buyer represents and warrants to Seller as follows:
4.1 Buyer has full power and authority to execute and enter into this Agreement and to consummate the transaction contemplated hereunder. This Agreement constitutes the valid and binding agreement of Buyer, enforceable in accordance with its terms subject to bankruptcy, insolvency of other creditors’ rights laws of general application. Neither the execution nor delivery of this Agreement, nor the consummation of the transactions covered hereby, nor compliance with the terms and provisions hereof, shall conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement or instrument to which Buyer is a party.
4.2 Buyer has inspected the Property and is familiar with all aspects of the Property and its condition, and accepts such condition.
9 5. Buyer's Acknowledgment and General Release.
5.1 “AS-IS” Sale. Except as provided in Paragraph 3 of this Agreement, Buyer acknowledges and agrees that Seller makes no representation or warranty respecting the Property, or any portion thereof, or otherwise in connection with the transaction contemplated hereby.
Without limiting the generality of the foregoing, Buyer her eby acknowledges and agrees that Buyer purchases the Property " AS IS " with all faults, without representation, warranty or guarantee of any kind, either express or implied, including, without limitation, any warranty of condition, merchantability, habitabi lity or fitness for a particular use or purpose or the value, accuracy of information, marketability, prospects for future development, use or occupancy, except as provided in Paragraph 3 above.
5.2 Waivers and Releases . Upon Close of Escrow, and except as to any breaches of warranties, duties or obligations of Seller set forth in this Agreement and/or liability for contribution for any release of any hazardous substance by Seller on the Property, Buyer hereby waives, to the maximum legal exten t, any and all claims, remedies and causes of action for damages, liabilities, losses, or injuries related to Buyer’s acquisition of the Property , whether known or unknown, foreseeable, or unforeseeable. Buyer, on behalf of itself and its successors and assigns, hereby fully releases Seller, its successors, agents, representatives, and assigns from all claims and causes of action by reason of any damage which has been sustained, or may be sustained, as a result of Buyer’s purchase of the Property.
5.3 California Civil Code Section 1542. Buyer hereby acknowledges that it has either consulted with legal counsel, or had an opportunity to consult with legal counsel regarding this Release, and represents and warrants that it is familiar with the provisions of California Civil Code Section 1542, which provides:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known to him or her must have material ly affected his or her settlement with the debtor.”
Buyer acknowledges that with respect to the sale of the Property to Buyer, Buyer may have sustained damage, loss, costs, or expenses which are presently unknown and unsuspected, and such damage, loss, costs, or expenses which may have been sustained, may give rise to additional damage, loss, costs, or expenses in the future. Nevertheless, Buyer hereby acknowledges, represents and warrants that this Agreement has been negotiated and agreed upon in light o f that situation, and hereby waives, to the maximum legal extent, any rights accruing to it under Section 1542 or other statute or judicial decision of similar effect. Notwithstanding the foregoing, nothing in this section relieves Seller of any liability for any breaches of warranties, duties or obligations of Seller set forth in this Agreement and /or liability for contribution for any release of any hazardous substance by Seller on the Property.
____________ ____________
Buyer’s Initials
10 6. Reservation of City’s Discretion. The Parties agree and acknowledge that nothing in this Agreement in any respect shall be construed to affect or prejudge the exercise of the City’s discretion concerning the submittal by Buyer of Buyer’s Entitlements. Furth er, nothing in this Agreement in any respect shall be construed to affect or prejudge the City’s discretion to consider, negotiate, or undertake any action with respect to Buyer’s Entitlements.
By its execution of this Agreement, the City is not committ ing itself to or agreeing to undertake any other acts or activities requiring the subsequent independent exercise of discretion by the City or any City commission, board, or department thereof. Except as specifically provided in this Agreement, the City s hall not be responsible for any costs or expenses incurred by Buyer in connection with this Agreement or Buyer’s Entitlements, nor shall the City be responsible for any potential lost profits of the Buyer.
Buyer is aware, understands, and acknowledges t hat City is by law required to exercise its sole unfettered discretion in considering Buyer’s Entitlements . Neither this Agreement nor any other agreement between Buyer and Seller obligates the City to approve, disapprove, or consider Buyer’s Entitlements in a particular manner.
7. Delivery of Possession. Subject to the rights of all tenants on the Property, if any, Seller shall deliver possession of the Property to Buyer at the Close of Escrow.
8. Commissions. Buyer and Seller represent and warrant to one another that no broker, salesman or finder has been engaged by them in connection with the transactions contemplated by this Agreement.
9. Notices. Whenever Escrow Holder or any party hereto shall desire to deliver to the other any notice, demand, request or other communication, each such notice, demand, request or other communication shall be in writing, shall be given by personal delivery, by registered or certified United States mail, return receipt reques ted, or by overnight courier, postage prepaid, addressed as follows:
If to Seller: City of Norwalk
12700 Norwalk Boulevard
Norwalk, CA 90660
Attn: City Manager
Tel: (562) 929-5700
Fax: (562) 929-5780
Email: [email protected]
With a copy to: Alvarez-Glasman & Colvin
13181 Crossroads Parkway North, Suite 400 West
City of Industry, CA 91746
Attn: Arnold M. Alvarez-Glasman, City Attorney
Tel: (562) 699-5500
Fax: (562 692-2244
Email: [email protected]
11 If to Buyer: Wilshire Group Funding
714 S. Plymouth Blvd,
Los Angeles, CA 90005
Attn: Amir Houriani
Tel: 310-903-2606
Fax:________________
Email:[email protected]
With a copy to: Sullivan, Workman & Dee, LLP
600 N. Rosemead Blvd., Suite 209
Pasadena, CA 91107
Attn: Karyn A. M. Jakubowski
Tel: (626) 656-8700 x 207
Email: [email protected]
Any such notice, demand, request or other communication shall be deemed effective on the day of actual delivery or refusal to accept as shown by the addressee's return receipt. If the date on which any notice required to be delivered hereunder falls on a weekend or legal holiday, then such notice may be delivered on the next business day immediately following such weekend or holiday. If the date of Closing, or any other d ate fall s on a weekend or legal holiday, then such date shall automatically be extended to the next business day immediately following such weekend or holiday. The foregoing addresses may be changed by notice given in accordance with this Paragraph.
10. Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless the Buyer and its officers, agents, employees and representatives harmless from any and all losses, liabilities, claims, lawsuits, causes of action, judgments, settlements, court costs, attorneys’ fees, and other legal expenses, costs of evidence of title, costs of evidence of value, and other damages of whatsoever nature arising out of or in connection with, or relating in any manner to any act or omission of Seller or its agents, employees, contractors and subcontractors of any tier and employees thereof in connection with or arising from Seller’s ownership or operation of the Property, except for any such loss, liability, claim, lawsuit or other damage arising from the gross negligence or willful misconduct of the City or its officers, agents, employees or representatives.
11. Amendment; Entire Agreement. All amendments and supplements to this Agreement must be in writing and executed by Buyer and Seller. All understanding s and agreements between the parties (including any printed offer of sale provided by Seller to Buyer) regarding the Property are merged in this Agreement, which alone fully and completely expresses the agreement of the parties regarding the Property. This Agreement has been entered into after full investigation of the facts by both Parties and neither Party has relied on any statement or representation not embodied in this document. This Agreement has been drafted through a joint effort of the parties and their counsel and therefore shall not be construed against either of the parties as the draftsperson.
12 12. Governing Law. This Agreement shall be governed under the laws of the State of California.
13. Counterparts, Headings and Defined Terms. This Agreement may be executed in several counterparts each of which shall be an original, but all such counterparts shall constitute one such Agreement. The headings used herein are for convenience only and are not to be construed to be part of this Agreement. For the purposes of this Agreement, (a) the term "including" means "including without limitation," and (b) when a time period is specified in this Agreement for the performance of an act or the occurrence of an event, "days" shall mean "calendar days," unless otherwise specified herein.
14. No Offer. Submission of this Agreement for examination or signature by Buyer is not effective as an agreement to sell the Property or otherwise until execution by and delivery to both Buyer and Seller of an original of this Agreement.
15. Time of the Essence. Time is of the essence in the performance of this Agreement.
16. Waiver. The waiver by one party of performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be consid ered to be a waiver by it of any other covenant, condition or promise. The waiver by either or both parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law.
17. Third Parties . Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
18. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agree ment shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case, either party may terminate this Agreement and the Escrow on written notice to the other party given no later than ten (10) business days after the party giving such notice becomes aware of such invalidity, illegality or unenforceability, and the provisions of Paragraph
2.11 above shall apply.
19. Additional Documents. Each party hereto agrees to perform any further acts and to execute and deliver any further documents which may be reasonably necessary to carry out the provisions of this Agreement.
20. Assignment; Binding Effect. This Agreement shall not be assignable by Buyer to any other party, except a wholly owned subsidiary of Buyer, without the prior written consent of Seller, which consent Seller may withhold in its sole discretion. For purposes of this Paragraph,
13 any agreement entered into between Buyer and a third party , except a wholly owned subsidiary, prior to the Close of Escrow to sell or otherwise transfer any intere st in the Property, including, without limitation, the execution of escrow instructions contemplating such a sale or transfer shall be deemed an assignment. Any such assignment without Seller's consent as provided herein, shall be deemed a material breach of this Agreement, and Seller, may, in Seller's sole discretion, elect to terminate this Agreement, in which case this Agreement shall be null and void, Buyer shall have no further rights hereunder, and Seller shall be entitled to damages. Subject to the f oregoing, this Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of Seller and Buyer.
21. Independent Counsel. Each party acknowledges that it has consulted with and had the opportunity to consult with independ ent counsel of its own choosing in connection with the negotiation and execution of this Agreement.
22. De Minimis Remnants. The parties acknowledge that the legal description attached hereto as Exhibit A was prepared based upon existing Right of Way Map s in the possession of the State of California acting by and through the Department of Transportation (“CALTRANS”) as of the date of this Agreement . The parties further acknowledge that CALTRANS constructed improvements that appear to utilize a smaller ar ea than currently indicated on the Right of Way maps. Subsequent to the Close of Escrow, should Seller be deeded from CALTRANS any further portion of the property formerly known as 12843 Norwalk Boulevard in the City of Norwalk, Los Angeles County that it otherwise would have been required to sell to Buyer pursuant to California Code of Civil Procedure Section 1245.245 , said portions shall thereafter be quitclaimed from Seller to Buyer at no additional cost to Buyer. This provision will survive the close of escrow and the termination of this agreement.
[Signature(s) on the following page(s)]
14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
BUYER:
Wilshire Group Funding, ____
By: ____________________________________
Its: _____________________________________
Date: ___________________________________
SELLER:
City of Norwalk, a municipal corporation
By: ____________________________________
Jesus Gomez, City Manager
Date: ___________________________________
ATTEST:
By: ____________________________
Theresa Devoy, CMC, City Clerk
APPROVED AS TO FORM:
By: ____________________________
Arnold M. Alvarez-Glasman
City Attorney
EXHIBIT A & B
Legal Description with Map
EXHIBIT C
Grant Deed
Recording requested by and when
recorded mail to:
Wilshire Group Funding
WGF Contact Information
With a copy to:
City of Norwalk
12700 Norwalk Boulevard
Norwalk, CA 90660
Attn: City Clerk
APN: ________
GRANT DEED
THE UNDERSIGNED GRANTOR declares: (a) DOCUMENTARY TRANSFER TAX is $ ______; and (b) CITY TAX is $0.
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the City of Norwalk, a municipal corporation (“Grantor”), hereby grants to Wilshire Group Funding, a California corporation (“Grantee”), all of its respective rights, title, and interest in the real property located in the City of Norwalk, County of Los Angeles , State of California, as more particularly described in Attachment 1 attached hereto and incorporated herein by this reference (the “Property”).
IN WITNESS WHEREOF , Grantor has executed this Grant Deed as of _______________________.
CITY OF NORWALK, a municipal corporation
“Grantee”
By: _______________________
Jesus Gomez, City Manager
[Signature to be notarized]
ATTACHMENT 1
To Grant Deed
Legal Description
EXHIBIT D
List of Entitlements
1. Precise Development Plan (PDP) No. 2039
2. Director’s Approval Request (DAR) No. 05
3. Variance (VAR) No. 2022-01