Attachment No. 1
RESOLUTION NO. 2023-55
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POMONA,
CALIFORNIA, APPROVING THE EXECUTION OF A PURCHASE AND SALE
AGREEMENT WITH PATTI MAHAFFEY TRUST FOR THE SALE OF
CERTAIN REAL PROPERTY CONSISTING OF A CITY OWNED PUBLIC PARKING LOT KNOWN AS VEHICLE PARKING DISTRICT LOT 2
(ASSESSOR'S PARCEL NUMBER 8336-021-901) AND FINDING SAID ACTION
CATEGORICALLY EXEMPT FROM CALIFORNIA ENVIRONMENTAL
QUALITY ACT REVIEW
WHEREAS, the City of Pomona ("City") currently owns in fee that certain real property consisting of a Vehicle Parking District (VPD) parking lot, VPD Lot 2 (Assessor's Parcel Number 8336-021-901) ("Property"); and
WHEREAS, the City has no use for the Property and intends to sell the Property by executing a Purchase and Sale Agreement in a form substantially similar to Exhibit "A" attached to this Resolution and incorporated by reference herein ("PSA") with Patti Mahaffey Trust ("Purchaser"); and WHEREAS, on March 7, 2022, the City Council passed and approved Resolution No. 2022- 28, declaring the Property as surplus land; and
WHEREAS, Government Code section 54220 et seq. (the "Surplus Land Act") requires that, prior to the disposal of any surplus land, unless an exemption applies, a local agency must provide notice to, among others, affordable housing developers, and thereafter negotiate in good faith for ninety (90) days with any parties who submit a notice of interest; and WHEREAS, the City issued a Notice of Availability for the Property in accordance with Government Code section 54220 and as directed by the City Council in Resolution No. 2022-28; and WHEREAS, the Planning Commission must prepare a report finding that the location, purpose, and extent of the disposition conforms to the General Plan. Staff shall direct the Planning Commission to prepare such a report in conformity with the requirements of Government Code Section 65402; and
WHEREAS, the City's sale of the Property, in accordance with the terms of the PSA, is in the best interest of the City and of the health, safety and welfare of the residents of the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Pomona as follows:
SECTION 1. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Resolution No. 2023-55
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SECTION 2. The City Council finds that the sale of the Property pursuant to the PSA will further the goals and purposes of the City, and is in the best interest of the City and of the health, safety and welfare of the residents of the City.
SECTION 3. The City Council hereby approves the PSA in substantially the form presented, subject to any non-substantive revisions which do not increase the City's liability and are approved by the City Attorney, and authorizes the City Manager to sign and enter into the Agreement and perform the obligations of the City under the PSA.
SECTION 4. The City Council hereby finds that approval of the PSA is not a project under CEQA pursuant to State CEQA Guidelines section 15004(2)(A), which authorizes agencies to enter into land acquisition agreements prior to the completion of environmental review so long as the future use of the site is conditioned on future CEQA compliance. Specifically, approving the PSA is not a project under CEQA because: (1) it does not authorize any actions which may directly or indirectly impact the environment; (2) the PSA would not commit the City to the approval of any future development; and (3) the City has and will make any future development subject to appropriate review under CEQA, as required by this Resolution.
Furthermore, the City Council finds that approving the PSA is exempt from further environmental review pursuant to State CEQA Guidelines, sections 15060(c)(2) and 15061(b)(3), because it can be seen with certainty that approving the PSA will merely result in transferring ownership of the Property, and there is no possibility that there will be a significant effect on the environment. None of the exceptions to this categorical exemption applies, and consequently, this action is exempt from further CEQA review.
SECTION 5. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.
SECTION 6. This Resolution shall become effective immediately upon its adoption.
PASSED, APPROVED AND ADOPTED this 3rd day of April, 2023.
ATTEST: CITY OF POMONA:
Rosalia A. Butler, MMC Tim Sandoval
City Clerk, MMC Mayor
APPROVED AS TO FORM:
Sonia Carvalho
City Attorney
Resolution No. 2023-55
April 3, 2023
65318.10300141094293.2
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES)
CITY OF POMONA )
1, HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council of the City of Pomona at a regular meeting thereof held on April 3, 2023 by the following vote of the Council:
AYES:
NOES:
ABSTAIN:
ABSENT:
Rosalia A. Butler, MMC
City Clerk
Exhibit A - Purchase and Sale Agreement
Resolution No. 2023-55
April 3, 2023
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Exhibit A to Resolution 2023-55
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
This REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is dated as of 2023 ("Effective Date*), and is entered into by and between the CITY OF POMONA, a California municipal corporation ("Seller"), and PATTI MAHAFFEY TRUST DATED FEBRUARY 28, 1996 ("Buyer"). Seller and Buyer enter into this Agreement with reference to the following recitals of fact (each, a "Recital"):
RECITALS
A. Seller owns certain real property commonly known as Vehicle Parking District, Parking Lot 2, Assessor Parcel Number ("APN"): 8336-021-901, as further described in Exhibit "A" attached to this Agreement and incorporated herein by reference ("Premises"); and B. On March 7, 2022, the City Council adopted Resolution No. 2022-28, declaring the subject Premises surplus under the provisions of the Surplus Land Act contained at Government Code Section 54220 et seq. ("Surplus Land Act") and approving a form of Notice of Availability ("NOA"), as required by applicable law; and C. After adherence to the applicable procedures contained in the Surplus Land Act and the Department of Housing and Community Development ("HCD") Guidelines regarding the same, on July 8, 2022, HCD notified the City of its determination that the City had met all of the requirements of the Surplus Land Act and could proceed with sale or lease of the Premises; and
D. Buyer has made an offer to purchase the Premises from Seller for fair market value, and Seller desires to sell the Premises to Buyer pursuant to the terms and conditions of this Agreement and subject to any requirements contained in State law, including, but not limited to, Government Code Section 54233.
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND
COVENANTS OF SELLER AND BUYER SET FORTH IN THIS AGREEMENT AND
OTHER GOOD AND VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
DEFINITIONS
Definitions. The following words, terms and phrases are used in this Agreement with the following meanings, unless the particular context or usage of a word, term or phrase requires another interpretation:
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1.1.1 Agreement. This Real Property Purchase and Sale Agreement and Joint Escrow Instructions by and between Seller and Buyer, including all of the attached exhibits.
1.1.2 Approval. Any license, permit, approval, consent, certificate, ruling, variance, authorization, conditional use permit or amendment to any of the foregoing, as shall be necessary or appropriate under any Law to commence, perform or complete any construction on or development of the Premises.
1.1.3 Broker. There is no broker for this purchase and sale transaction.
1.1.4 Business Day. Monday through Friday, exclusive of Federal, State or City holidays.
1.1.5 Buyer. Defined in the initial paragraph of this Agreement.
1.1.6 Buyer Title Policy. A standard CLTA owners' policy of title insurance issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the Premises vested in Buyer, subject only to Permitted Exceptions.
1.1.7 CEQA. The California Environmental Quality Act, Public Resources Code Section 21000, et seq.
1.1.8 CEQA Documents. Any exemption determination, any Negative Declaration (mitigated or otherwise) or any Environmental Impact Report (including any addendum or amendment to, or subsequent or supplemental Environmental Impact Report) required or permitted by any Government, pursuant to CEQA, for Seller to approve or perform this Agreement or issue any Approval.
1.1.9 City. The City of Pomona, a California municipal corporation.
1.1.10 Claim. Any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees and expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any judgment.
1.1.11 Close of Escrow. The first date on which the Escrow Agent files the Grant Deed with the County for recording in the official records of the County.
1.1.12 County. The County of Los Angeles, California.
1.1.13 Commission Price. There is no Commission or Commission Price associated with this purchase and sale transaction.
1.1.14 Default. An Escrow Default, a Monetary Default or a Non-Monetary Default.
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1.1.15 Effective Date. Defined in the initial paragraph of this Agreement.
1.1.16 Escrow. An escrow, as defined in Civil Code Section 1057 and Financial Code Section 17003(a), that is conducted by the Escrow Agent with respect to the sale of the Premises from Seller to Buyer pursuant to this Agreement.
1.1.17 Escrow Agent. First American Title Company, or such other Person mutually agreed upon in writing by both Seller and Buyer.
1.1.18 Escrow Closing Date. The earlier of: (a) on or before the forty-fifth (45th) day after Escrow Opening Date or (b) another date mutually agreed upon in writing between the Parties for the Close of Escrow, in the Parties respective sole and absolute discretion.
1.1.19 Escrow Closing Statement. A statement prepared by the Escrow Agent indicating, among other things, the Escrow Agent's estimate of all funds to be deposited or received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buyer, respectively, through the Escrow.
1.1.20 Escrow Default. The unexcused failure of a Party to submit any document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to the terms and conditions of this Agreement.
Agreement signed by both Seller and Buyer is deposited with the Escrow Agent, as provided in 1.1.21 Escrow Opening Date. The first date on which a copy of this Section 2.1.
1.1.22 Event of Default. The occurrence of any one or more of the following:
Monetary Default. A Monetary Default that continues for seven (7) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount of money not paid or the bond or surety not provided;
(b) Escrow Default. An Escrow Default that continues for seven (7) calendar days after Notice to the Party in Default, specifying in reasonable detail the document or funds not submitted to the Escrow Agent;
(c) Non-Monetary Default. Any Non-Monetary Default that is not cured within thirty (30) days after Notice to the Party in Default describing the Non-Monetary Default in reasonable detail. In the case of such a Non-Monetary Default that cannot with reasonable diligence be cured within thirty (30) days after the effective date of Notice of such Default, an Event of Default shall occur, if the Party in Default does not do all of the following:
(a) within thirty (30) days after Notice of such Non-Monetary Default, advise the other Party of the intention of the Party in Default to take all reasonable steps to cure such Non-Monetary Default; (b) duly commence such cure within such thirty (30) day period; and (c) diligently prosecute such cure to completion within a reasonable time under the circumstances.
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1.1.23 Federal. The federal government of the United States of America.
1.1.24 FIRPTA Affidavit. A certification that Seller is not a "foreign person" within the meaning of such term under Section 1445 of the United States Internal Revenue Code.
1.1.25 Form 593. A California Franchise Tax Board Form 593-C.
1.1.26 Government. Any and all courts, boards, agencies, commissions, offices or authorities of any nature whatsoever of any governmental unit (Federal, State, County, district, municipal or otherwise) whether now or later in existence.
1.1.27 Grant Deed. A deed conveying Seller's interest in the Premises from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit "B" attached to this Agreement.
1.1.28 Hazardous Substance. Any flammable substance, explosive, radioactive material, asbestos, asbestos-containing material, polychlorinated biphenyl, chemical known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste, medical wastes, toxic substance or related material, explosive, petroleum, petroleum product or any "hazardous" or "toxic" material, substance or waste that is defined by those or similar terms or is regulated as such under any Law, including any material, substance or waste that is: (a) defined as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. § 1317), as amended; (b) designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (c) defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., as amended; (d) defined as a "hazardous substance" or "hazardous waste" under Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act of 1986, 42 U.S.C. § 9601, et seq., or any so-called "superfund" or "superlien" law; (e) defined as a "pollutant" or "contaminant" under 42 U.S.C. § 9601(33); (f) defined as "hazardous waste" under 40 C.F.R. Part 260; (g) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; (h) any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (i) any matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.]; (j) any matter, waste or substance regulated under the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; (k) those substances listed in the United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (1) any matter, waste or substances designated by the EPA, or any successor authority, as a hazardous substance [40 C.F.R. Part 302]; (m) defined as "hazardous waste" in Section 25117 of the California Health and Safety Code; (n) defined as a "hazardous substance" in Section 25316 of the California Health and Safety Code; (o) that is subject to any other Law regulating, relating to or imposing obligations, liability or standards of conduct concerning protection of human health, plant life, animal life, natural resources, property or the enjoyment of life or property free from the presence in the environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p) that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations adopted pursuant to Law.
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1.1.29 Hazardous Substance Discharge. Any deposit, discharge, generation, release or spill of a Hazardous Substance that occurs at, on, under, into or from the Premises or during transportation of any Hazardous Substance to or from the Premises, or that arises at any time from any construction, installation, use or operation or other activities conducted at, on, under or from the Premises, whether or not caused by a Party.
1.1.30 Indemnify. Where this Agreement states that any Indemnitor shall "indemnify" any Indemnitee from, against or for a particular Claim, that the Indemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.31 Indemnitee(ies). Any Person entitled to be Indemnified under the terms of this Agreement.
1.1.32 Indemnitor. A Party that agrees to Indemnify any other Person under the terms of this Agreement.
1.1.33 Initial Deposit. Two Percent (2%) of the Purchase Price, Sixteen Thousand Seven Hundred Dollars ($16,700), which shall be deposited with the Escrow Agent by Buyer within two (2) business days of the Escrow Opening Date.
1.1.34 Joint Escrow Instructions. The joint escrow instructions of the Parties to the Escrow Agent for conducting the Escrow as set forth in the provisions of Section 3.
1.1.35 Law. Every law, ordinance, requirement, order, proclamation, directive, rule or regulation of any Government applicable to the Premises, in any way, including relating to any development, construction, use, maintenance, taxation, operation, occupancy of or environmental conditions affecting the Premises, or relating to any taxes, or otherwise relating to this Agreement or any Party's rights, obligations or remedies under this Agreement, or any transfer of any of the foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or imposed at some later time, subject in all cases, however, to any applicable waiver, variance or exemption.
1.1.36 Legal Costs. In reference to any Person, all reasonable costs and expenses such Person incurs in any legal proceeding or other matter for which such Person is entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court costs and expenses and consultant and expert witness fees and expenses.
1.1.37 Monetary Default. Any failure by either Party to pay or deposit, when and as this Agreement requires, any amount of money, bond or surety required to be provided under this Agreement, whether to or with a Party or a Third Person.
1.1.38 Non-Monetary Default. The occurrence of any of the following, except to the extent constituting a Monetary Default or an Escrow Default: (a) any failure of a Party to perform any of such Party's obligations under this Agreement; (b) any failure of a Party to comply with any material restriction or prohibition in this Agreement; or (c) any other event or
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circumstance that, with passage of time or giving of Notice, or both, or neither, would constitute a breach of this Agreement by a Party.
1.1.39 Notice. Any consent, demand, designation, election, notice or request relating to this Agreement, including any Notice of Default. All Notices must be in writing.
1.1.40 Parties. Collectively, Seller and Buyer.
1.1.41 Party. Individually, either Seller or Buyer, as applicable.
1.1.42 Permitted Exceptions. All of the following: (a) all items shown in the Preliminary Report as exceptions to coverage under the proposed Buyer Title Policy, except for:
(i) Exception 8 concerning general and special taxes and assessments for the fiscal year 2018- 2019; and, (ii) Exception 13 concerning the lien for unsecured property taxes, evidenced by a certificate recorded by the tax collector of Los Angeles County, recorded September 09, 2021, as Instrument No. 20211376495 of Official Records; (b) any lien for non-delinquent property taxes or assessments; (c) any Laws applicable to the Premises; (d) this Agreement; (e) any existing improvements on the Premises, if any; (f) any other document or encumbrance expressly required or allowed to be recorded against the Premises pursuant to the terms of this Agreement.
1.1.43 Person(s). Any association, corporation, governmental entity or agency, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind.
1.1.44 Preliminary Report. The preliminary title report and commitment for title insurance covering Buyer issued by First American Title Insurance Company National Commercial Services with a commitment date January 31, 2023, provided by Seller to Buyer, which is incorporated herein by reference as though fully set forth herein.
1.1.45 Premises. That certain real property specifically described in Exhibit "A" attached to this Agreement, as indicated in the Recitals.
1.1.46 Purchase Price. Eight Hundred Thirty-Five Thousand Dollars ($835,000.00).
1.1.47 Real Estate Taxes. All general and special real estate taxes (including taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental taxes, possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments, municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fines, penalties and other governmental charges and any interest or costs with respect thereto, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature whatsoever regarding the Premises that may be assessed, levied, imposed upon, or become due and payable out of or in respect of, or charged with respect to or become a lien on, the Premises.
1.1.48 Seller. The City of Pomona, a California municipal corporation.
1.1.49 State. The State of California.
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1.1.50 Third Person(s). Any Person that is not a Party, an Affiliate of a Party or an officer, director, manager, shareholder, member, principal, partner, employee or agent of a
1.1.51 Title Objections. Written objections to those matters shown in: (i) an updated Preliminary Report; (ii) any search included in the updated Preliminary Report; and/or (ili) a survey of the Premises ordered in Buyer's sole and absolute discretion and at its sole cost and expense.
1.1.52 Title Company. First American Title Company, or such other Person mutually agreed upon in writing by both Seller and Buyer.
1.1.53 Unavoidable Delay. A delay in either Party performing any obligation under this Agreement arising from or on account of any cause whatsoever beyond the Party's reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts of terrorism, riots, litigation, governmental action or inaction, regional natural disasters or inability to obtain required materials. Unavoidable Delay shall not include delay caused by a Party's financial condition or insolvency.
PURCHASE AND SALE OF PREMISES
2.1 Escrow. Seller shall sell the Premises to Buyer and Buyer shall purchase the Premises from Seller, subject to the Permitted Exceptions, on the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the sale of the Premises from Seller to Buyer and the purchase of the Premises by Buyer from Seller, pursuant to the terms and conditions of this Agreement, Seller and Buyer agree to open the Escrow with the Escrow Agent. Buyer shall cause the Escrow to be opened within two (2) Business Days following the Effective Date. Escrow Agent shall promptly confirm the Escrow Opening Date in writing to each Party and shall open the Escrow consistent with the Joint Escrow Instructions.
2.2 Payment of Purchase Price. Buyer shall purchase the Premises from Seller for the Purchase Price, subject to the terms and conditions of this Agreement. Buyer shall pay the Purchase Price to Seller at the Close of Escrow in immediately available funds.
2.3 Initial Deposit. Buyer shall deliver the Initial Deposit to Escrow Agent within two (2) business days of the Escrow Opening Date.
2.4 Seller Provided Buyer with Preliminary Report.
2.4.1 Seller has provided, and Buyer acknowledges receipt of, the Preliminary Report prior to the Effective Date and Buyer has had a chance to review that Preliminary Report.
2.4.2 Buyer may order an updated Preliminary Report at its sole cost and expense. Buyer shall have until fifteen (15) days following Buyer's receipt of any updated Preliminary Report to provide Seller with Title Objections, but only to the extent any item identified in the updated Preliminary Report was not included in the Preliminary Report.
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2.4.3 If Buyer provides Seller with Title Objections in a timely manner, Seller shall have the right within ten (10) days following the receipt of notice of Buyer's Title Objections to elect to cure such Title Objections prior to the Escrow Closing Date and shall give written notice of that election to Buyer ("Seller's Election"). If Seller elects not to cure a Title Objection, Buyer shall have the right, within five (5) days after the time for Seller's Election has expired to either accept title to the Premises subject to such Title Objection, or to terminate this Agreement. Buyer's failure to notify Seller in writing of Buyer's election to accept title to the Property subject to the Title Objections shall constitute a waiver of the Title Objections and any right or remedy in this Agreement related thereto.
2.4.4 If the time periods for the satisfaction for Seller's and Buyer's elections would expire on a date after the Escrow Closing Date, the Escrow Closing Date shall be deemed extended for three (3) business days following the expiration of the applicable election periods), provided that either Party has complied with the requirements for the respective election in this Agreement.
2.5 "AS-IS" Acquisition. Except for the representations and warranties set forth herein that expressly survive the Close of Escrow, the Close of Escrow shall evidence Buyer's unconditional and irrevocable acceptance of the Premises in the Premises' AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT WARRANTY as to character, quality, performance, condition, title, physical condition, zoning, land use restrictions, the availability or location of utilities or services, the location of any public infrastructure on or off of the Premises (active, inactive or abandoned), the suitability of the Premises for Buyer's intended use or any other use or the existence or absence of Hazardous Substances affecting the Premises and with full knowledge of the physical condition of the Premises, the nature of Seller's interest in and use of the Premises, all laws applicable to the Premises and any and all conditions, covenants, restrictions, encumbrances and all matters of record relating to the Premises. The Close of Escrow shall further constitute Buyer's representation and warranty to Seller that: (a) Buyer has had ample opportunity to inspect and evaluate the Premises and the feasibility of the uses and activities Buyer is entitled to conduct on the Premises; (b) Buyer is experienced in real estate acquisition and development; (c) Buyer is relying entirely on Buyer's experience, expertise and Buyer's own inspection of the Premises in the Premises' current state in proceeding with acquisition of the Premises; (d) Buyer accepts the Premises in the Premises' condition as of the Close of Escrow; (e) to the extent that Buyer's own expertise with respect to any matter regarding the Premises is insufficient to enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the services of Persons qualified to advise Buyer with respect to such matters: (f) Buyer has received assurances acceptable to Buyer by means independent of Seller or Seller's agents of the truth of all facts material to Buyer's acquisition of the Premises; and (g) the Premises is being acquired by Buyer as a result of Buyer's own knowledge, inspection and investigation of the Premises and not as a result of any representation made by Seller or Seller's agents relating to the condition of the Premises, unless such statement or representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and specifically disclaims any express or implied warranties regarding the Premises other than those expressly set forth herein.
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No Commitment to Development. The Parties agree that nothing in this Agreement is intended to commit the Buyer to completing a particular project or to commit the City to granting any Approval. The City's approval of this Agreement does not constitute approval by the City of any development of the Premises or of other activity on the Premises that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA. (See 14 C.C.R. §8 15060(c); 15378(b).) Moreover, Buyer's future use or development of the Premises is expressly conditioned on CEQA compliance. City shall conduct environmental review in accordance with CEQA prior to taking any discretionary action with regard to any proposed development of the Premises. Nothing in this Agreement shall be construed to limit the City's discretion to consider and adopt any mitigation measure or project alternative, including the alternative of rejecting any proposed development of the Premises, as provided in Public Resources Code section 21002. Following completion of the City's environmental review of any proposed development of the Premises, the City shall file a notice of such approval as provided in Public Resources Code section 21152.
2.7 Representations and Warranties of Seller.
2.7.1 Seller's warranties and representations shall survive the Close of Escrow and delivery of the deed. Seller's warranties and representations are true, material and relied upon by Buyer in all respects. Seller hereby makes the following warranties and representations to Buyer:
(a) Authority of Seller. Seller is the owner of the Property and/or has the full right, power and authority to sell, convey and transfer the Property to Buyer as provided herein, and to perform Seller's obligations hereunder.
(b) Maintenance During Escrow. Seller shall maintain the Premises until the Close of Escrow in its present condition, ordinary wear and tear excepted. (c) Surplus Land Act and Department of Housing and Community Guidelines. Seller represents and warrants that it has complied with all requirements and procedures expressly set forth in the Surplus Land Act and HCD Guidelines regarding the same.
Agreement Affecting the Premises. There are not any agreements affecting the Premises. Further, Seller shall not create any new lease or other agreement affecting the Premises, without Buyer's written approval, which approval will not be unreasonably withheld.
(e) Possessory Rights. Seller affirms that no one will, at the Close of Escrow, have any right to possession of the Premises, except as disclosed by this Agreement or otherwise in writing to Buyer.
(f) Liens. There are no unsatisfied liens concerning the Premises or Seller has made arrangements to address those liens in this Agreement or by separate agreement with Buyer.
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(g) Actions, Suits or Proceedings. Seller has no knowledge of any actions, suits or proceedings pending or threatened before any commission, board, bureau, agency, arbitrator, court or tribunal that would affect the Premises or the right to occupy or utilize same.
2.7.2 Notice of Changes. Seller will promptly notify Buyer in writing of any change affecting the Premises that becomes known to Seller prior to the Close of Escrow.
2.8 The provisions of this paragraph shall survive the Close of Escrow.
3. JOINT ESCROW INSTRUCTIONS
3.1 Escrow Instructions. This Section 3 constitutes the Joint Escrow Instructions of the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Premises consistent with the terms of this Agreement. Buyer and Seller shall sign such further escrow instructions consistent with the provisions of this Agreement as may be reasonably requested by Escrow Agent. In the event of any conflict between the provisions of this Agreement and any further escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.
3.2 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:
3.2.1 Charges. Pay and charge Seller and Buyer for their respective shares of the applicable fees, taxes, charges and costs payable by either Seller or Buyer regarding the Escrow;
3.2.2 Settlement/Closing Statements. Release each Party's Escrow Closing Statement to the other Party;
3.2.3 Document Recording. File any documents delivered for recording through the Escrow with the office of the Recorder of the County for recordation in the official records of the County, pursuant to the joint instructions of the Parties; and
3.2.4 Counterpart Documents. Utilize documents signed by Seller or Buyer in counterparts, including attaching separate signature pages to one original of the same document.
3.3 Buyer's Conditions Precedent to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer's obligation to purchase the Premises from Seller on the Escrow Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the following conditions:
3.3.1 Title Policy. Title Company is committed to issue the Buyer Title Policy to Buyer upon payment of Title Company's premium for such policy. Escrow Agent shall cause the Title Company to deliver a Pro Forma Title Policy, as well as legible copies of all documents referred to in Buyer's Title Policy, and a scaled and dimensioned plot showing the
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location of any easements to be delivered to Buyer not less than ten (10) days prior to the first Escrow Closing Date.
3.3.2 Seller Escrow Deposits. Seller deposits all of the items into Escrow required by Section 3.6;
3.3.3 Settlement/Closing Statement. Buyer reasonably approves Buyer's Escrow Closing Statement; and
3.3.4 Seller Pre-Closing Obligations. Seller performs all of the material obligations required to be performed by Seller pursuant to this Agreement prior to the Close of Escrow.
Seller's Conditions Precedent to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's obligation to sell the Premises to Buyer on the Escrow Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the following conditions precedent to such sale on or before the Escrow Closing Date:
3.4.1 Buyer Escrow Deposits. Buyer deposits all of the items into Escrow required by Section 3.5;
3.4.2 Settlement/Closing Statement. Seller reasonably approves Seller's Escrow Closing Statement; and
Buyer Pre-Closing Obligations. Buyer performs all of the material obligations required to be performed by Buyer pursuant to this Agreement prior to Close of Escrow.
3.5 Buyer's Escrow Deposits. Buyer shall deposit the following items into Escrow and, concurrently, provide a copy of each document submitted into Escrow to Seller, at least one (1) Business Day prior to the Escrow Closing Date:
3.5.1 Closing Funds. All monetary amounts required to be deposited into Escrow by Buyer under the terms of this Agreement to close the Escrow, all in immediately available funds;
3.5.2 Escrow Closing Statement. Buyer's Escrow Closing Statement signed by the authorized representative(s) of Buyer; and
3.5.3 Other Reasonable Items. Any other money or documents required to be delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that have not previously been delivered by Buyer.
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3.6 Seller's Escrow Deposits. Seller shall deposit the following items into Escrow and, concurrently, provide a copy of each document (excluding the Grant Deed) deposited into Escrow to Buyer, at least one (1) Business Day prior to the Escrow Closing Date:
3.6.1 Grant Deed. The Grant Deed signed by the authorized representatives) of Seller in recordable form;
3.6.2 Escrow Closing Statement. Seller's Escrow Closing Statement signed by the authorized representatives) of Seller;
3.6.3 FIRPTA Affidavit. A FIRPTA affidavit signed by the authorized representatives) of Seller, in the form used by the Escrow Agent;
3.6.4 Form 593. A Form 593 signed by the authorized representative(s) of Seller; and
3.6.5 Other Reasonable Items. Any other money or documents required to be delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that have not been previously delivered by Seller.
3.7 Closing Procedure. Upon Escrow Agent's receipt of written confirmation from both Buyer and Seller that each of their respective conditions precedent to the Close of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by doing all of the following:
3.7.1 Recording and Distribution of Documents. Escrow Agent shall cause the following documents to be filed with the Recorder of the County for recording in the official records of the County regarding the Premises in the following order of priority at Close of Escrow: (a) the Grant Deed; and (b) any other documents to be recorded regarding the Premises through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent shall deliver conformed copies of all documents filed with the Recorder of the County for recording in the official records of the County through the Escrow to the Parties and any other Person designated in the Joint Escrow Instructions to receive an original or conformed copy of each such document. Each conformed copy of a document filed for recording shall show all recording information. The Parties intend and agree that this Section 3.7.1 shall establish the relative priorities of the documents to be recorded in the official records of the County through the Escrow, by providing for recordation of senior interests prior to junior interests, in the order provided in this Section 3.7.1;
3.7.2 Funds. Distribute all funds held by the Escrow Agent pursuant to the Escrow Closing Statements approved in writing by Seller and Buyer, respectively;
3.7.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service;
3.7.4 Form 593. File the Form 593 with the California Franchise Tax Board; and
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3.7.5 Title Policy. Obtain from the Title Company and deliver to Buyer the Buyer Title Policy issued by the Title Company.
3.8 Close of Escrow. The Close of Escrow shall occur on or before the Escrow Closing Date. If for any reason the Close of Escrow has not occurred on or before the Escrow Closing Date, then any Party not then in Default under this Agreement may cancel the Escrow and terminate this Agreement, without liability to the other Party or any other Person for such cancellation and termination, by delivering Notice of termination to both the other Party and Escrow Agent. Following any such Notice of termination of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall proceed pursuant to Section 3.12. Without limiting the right of either Party to cancel the Escrow and terminate this Agreement, pursuant to this Section 3.8, if the Escrow does not close on or before the Escrow Closing Date and neither Party has exercised its contractual right to cancel the Escrow and terminate this Agreement under this Section 3.8 before the first date on which Escrow Agent notifies both Parties that Escrow is in a position to close in accordance with the terms and conditions of this Agreement, then the Escrow shall close as soon as reasonably possible following the first date on which Escrow Agent notifies both Parties that Escrow is in a position to close in accordance with the terms and conditions of this Agreement.
3.9 Escrow Costs. Escrow Agent shall provide Notice to Buyer and Seller of the costs to be borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both Seller and Buyer at least four (4) Business Days prior to the Escrow Closing Date. Each party shall pay its own costs and expenses arising in connection with the Closing (including, without limitation, its own attorneys' and advisors' fees, charges, and disbursements), except the following costs (the "Closing Costs"), which shall be allocated between the parties as follows:
(a) Escrow fees and costs shall be paid one-half by Seller and one-half by Buyer;
(b) The cost of the Title Policy attributable to the standard coverage portion shall be paid by Seller;
(c) The cost of the Title Policy attributable to the extended coverage portion shall be paid by Buyer; and
(d) Seller shall pay the cost of any documentary transfer taxes in connection with the recording of the Grant Deed;
(e) All other closing fees and costs shall be charged to and paid by Seller and Buyer in accordance with customary practices in the County.
3.10 Allocation of Taxes. Real Estate Taxes relating to the Premises, if any, shall be prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.
3.11 Escrow Cancellation Charges. If the Escrow fails to close due to Seller's Default or Buyer's Default under this Agreement, then the Party in default shall pay all ordinary and
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reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company, respectively, if any. If the Escrow fails to close for any reason other than the Default of either Buyer or Seller, Buyer and Seller shall each pay one-half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company, respectively, if any.
3.12 Escrow Cancellation. If this Agreement is terminated pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement (other than due to an Event of Default by the other Party, the Parties shall do all of the following:
3.12.1 Cancellation Instructions. The Parties shall, within seven (7) Business Days following Escrow Agent's written request, sign any reasonable Escrow cancellation instructions requested by Escrow Agent;
3.12.2 Return of Funds and Documents. Within seven (7) Business Days following receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Agent (if any) or within seven (7) Business days following Notice of termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by Buyer to Seller or Escrow Agent, respectively, regarding the Escrow; (c) Escrow Agent shall, unless otherwise provided in this Agreement, return to Buyer all funds deposited in Escrow by Buyer, less Buyer's share of customary and reasonable Escrow and title order cancellation charges (if any) in accordance with Section 3.11; and (d) Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds deposited in Escrow by Seller, less Seller's share of customary and reasonable Escrow and title order cancellation charges (if any) in accordance with Section 3.11.
3.13 Eminent Domain. If any portion of the Premises or any interest in any portion of the Premises becomes the subject of any eminent domain proceeding prior to Close of Escrow, including the filing of any notice of intended eminent domain action or proceedings in the nature of eminent domain, Seller shall give Buyer Notice of such occurrence and Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice from Seller, to either: (a) cancel the Escrow and terminate this Agreement, in which case the Parties and the acquired by Buyer pursuant to this Agreement.
4. REMEDIES
4.1 BUYER'S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES.
4.1.1 ELECTION OF REMEDIES. DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT THAT CAUSES
CLOSE OF ESCROW NOT TO OCCUR, BUYER SHALL BE LIMITED TO EITHER OF
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THE FOLLOWING REMEDIES: (1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO RECOVER THE INITIAL DEPOSIT. UNDER NO
CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER UNDER THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE AMOUNT SET FORTH IN THIS SECTION 4.1.1,
ANY SPECULATIVE, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE OR
INDIRECT DAMAGES OR FOR ANY LOSS OF PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY BUYER.
4.1.2 WAIVER OF RIGHTS. SELLER AND BUYER EACH
ACKNOWLEDGE AND AGREE THAT SELLER WOULD NOT HAVE ENTERED INTO
THIS AGREEMENT IF SELLER WERE TO BE LIABLE TO BUYER FOR ANY
MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT
BY SELLER THAT CAUSES CLOSE OF ESCROW NOT TO OCCUR, OTHER THAN
SPECIFIC PERFORMANCE OF THIS AGREEMENT OR TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE AMOUNT SPECIFIED IN CLAUSE "(2)" OF SECTION 4.1.1. ACCORDINGLY, SELLER AND BUYER AGREE THAT THE REMEDIES SPECIFICALLY PROVIDED FOR IN SECTION 4.1.1 ARE REASONABLE AND SHALL
BE BUYER'S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES DURING THE CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SELLER.
BUYER WAIVES ANY RIGHT TO PURSUE ANY REMEDY OR DAMAGES AGAINST
SELLER, AND ITS OVERSIGHT BOARD, ARISING FROM OR RELATING TO THIS AGREEMENT OTHER THAN THOSE SPECIFICALLY PROVIDED IN SECTION 4.1.1.
4.1.3 STATE CIVIL CODE SECTION 1542 WAIVER. BUYER
ACKNOWLEDGES THE PROTECTIONS OF STATE CIVIL CODE SECTION 1542 REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 4.1, WHICH CIVIL CODE SECTION READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT 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.
4.1.4 ACKNOWLEDGMENT. BY INITIALING BELOW, BUYER
KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF STATE CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT SOLELY REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 4.1.
Initials of Authorized
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Buyer Representative(s)
4.1.5 STATEMENT OF INTENT. STATE CIVIL CODE SECTION 1542
NOTWITHSTANDING, IT IS THE INTENTION OF BUYER TO BE BOUND BY THE LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 4.1, AND
BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER, AND ITS
OVERSIGHT BOARD, FOR MONETARY DAMAGES, MONETARY RECOVERY OR
OTHER LEGAL OR EQUITABLE RELIEF RELATED TO ANY EVENT OF DEFAULT
UNDER THIS AGREEMENT BY SELLER THAT CAUSES CLOSE OF ESCROW NOT TO OCCUR, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4.1, WHETHER OR
NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS OF THE EFFECTIVE DATE.
4.1.6 DAMAGES CAP. NOTWITHSTANDING THE FOREGOING, AND
EXCEPT AS IT RELATES TO SELLER'S INDEMNIFICATION RIGHTS UNDER SECTION
4.3, BUYERS DAMAGES FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT, SHALL BE CAPPED AT THE AMOUNT OF THE PURCHASE PRICE.
4.2 SELLERS'S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES.
4.2.1 ELECTION OF REMEDIES. DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT BY BUYER UNDER THIS AGREEMENT PRIOR TO THE
CLOSING, SELLER SHALL BE LIMITED TO THE FOLLOWING REMEDIES, EITHER COLLECTIVELY OR SEPARATELY: (1) AN ACTION AGAINST BUYER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND LIQUIDATED DAMAGES AS DEFINED BY SECTION 4.2.2 OF THIS AGREEMENT.
4.2.2 RETENTION OF INITIAL DEPOSIT (LIQUIDATED
DAMAGES). IF THE CLOSE OF ESCROW DOES NOT OCCUR ON OR BEFORE THE
ESCROW CLOSING DATE AND SUCH FAILURE IS NOT SOLELY CAUSED BY ANY
ACT OR OMISSION BY SELLER, THEN SELLER SHALL RETAIN THE INITIAL DEPOSIT, AS LIQUIDATED DAMAGES. THE AMOUNT OF THE INITIAL DEPOSIT IS
THE REASONABLE ESTIMATE BY THE PARTIES OF THE DAMAGES SELLER WOULD
SUFFER FROM THE FAILURE OF THE PARTIES TO CLOSE, IT BEING AGREED THAT
IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO FIX
THE EXACT AMOUNT OF DAMAGE THAT WOULD BE INCURRED BY SELLER AS A RESULT OF SUCH FAILURE TO CLOSE. UPON SUCH AN OCCURRENCE, ESCROW SHALL BE CANCELED. IF ALL OR ANY PORTION OF THE INITIAL DEPOSIT HAS
BEEN DEPOSITED INTO ESCROW BY BUYER, ESCROW AGENT IS HEREBY
IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE THE INITIAL DEPOSIT TO SELLER AS LIQUIDATED DAMAGES. THESE LIQUIDATED DAMAGES
DO NOT WAIVE SELLER'S ABILITY TO RECOVER ANY OTHER DAMAGES, OR TO
TAKE ANY OTHER ACTION, AVAILABLE UNDER THIS AGREEMENT OR APPLICABLE LAW.
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4.3 Indemnification
4.3.1 Buyer Indemnification of the Seller. The Buyer agrees to indemnify, defend (upon written request by the Seller and with counsel reasonably acceptable to the Seller) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney's fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, through any act, omission, fault or negligence, whether active or passive, of the Buyer or the Buyer's officers, agents, employees, independent contractors or subcontractors of any tier, relating in any manner to this Agreement, any work to be performed by the Buyer related to this Agreement, the Premises, or any authority or obligation exercised or undertaken by the Buyer under this Agreement. Without limiting the generality of the foregoing, the Buyer's obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers' compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Premises on behalf of the Buyer by any person or entity.
4.3.2 Seller Indemnification of the Buyer. Subject to the limitations set forth in Section 4.1, the Seller agrees to indemnify, defend (upon written request by the Buyer and with counsel reasonably acceptable to the Buyer) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney's fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature ("Claims"), but if and only if such Claims arise from or are caused by Seller's breach of Seller's representations specifically identified in Section 2.7.
4.3.3 Legal Actions. Either Party may institute legal action, at law or in equity, to enforce or interpret the rights or obligations of the Parties under this Agreement or recover damages, subject to the provisions of Section 4.1 or Section 4.2, as applicable.
4.3.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the same or different times, of any other rights or remedies for the same Default or the same rights or remedies for any other Default by the other Party.
5. GENERAL PROVISIONS
5.1 Notices, Demands and Communications Between the Parties. Any and all Notices submitted by one Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger for immediate personal delivery, nationally recognized overnight (one Business Day) delivery service (i.e., United Parcel Service, Federal
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Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated below in this Section 5.1. Notices may be sent in the same manner to such other addresses as either Party may from time to time designate by Notice in accordance with this Section 5.1. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is received by the sender or the date • When ay set forth on such return receipt, on the day that the Notice is sent by messenger for immediate personal delivery, one Business Day after delivery to a nationally recognized overnight delivery service or three (3) calendar days after the Notice is placed in the United States mail in accordance with this Section 5.1. Any attorney representing a Party may give any Notice on behalf of such Party. The Notice addresses for the Parties, as of the Effective Date, are as follows:
To Buyer: Patti Mahaffey Trust dated February 28,
1996
29605 Grandpoint Lane
Rancho Palos Verdes, CA 90275
Attn: Patricia M. Mahaffey, trustee
To Seller: City of Pomona
505 S. Garey Avenue
Pomona, CA 91706
Attn: Joaquin Wong
With a copy to: Best Best & Krieger LLP
18101 Von Karman Ave.
Irvine, CA 92612
Attn: Sonia Carvalho
With a copy to: Gibbs Giden Locher Turner Senet &
Wittbrodt LLP
12100 Wilshire Boulevard Suite 300
Los Angeles, California 90025
Attn: Ashley M. Tullius, Esq.
5.2 Relationship of Parties. The Parties each intend and agree that Seller and Buyer are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture or similar business arrangement, relationship or association between them.
5.3 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. Any reference to Business Days in this Agreement shall mean consecutive Business Days.
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5.4 Governing Law. The procedural and substantive laws of the State shall govern the interpretation and enforcement of this Agreement, without application of conflicts of laws principles or statutes. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the County. All legal actions arising from this Agreement shall be filed in the Superior Court of the State in and for the County or in the United States District Court with jurisdiction in the County.
5.5 Unavoidable Delay; Extension of Time of Performance. Performance by either Party under this Agreement shall not be deemed or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall provide Notice to the other Party: (a) within twenty (20) days after such Party knows, or reasonably should know, of any such Unavoidable Delay; and (b) within twenty (20) days after such Unavoidable Delay ceases to exist. The extension of time for performance under this Agreement resulting from the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the condition causing the Unavoidable Delay and shall in no event be longer than ninety (90) days after written notice is received by a Party from the other Party of the occurrence of such an Unavoidable Delay; provided, however, that failure to perform by a Party due to the occurrence of an Unavoidable Delay shall not constitute a breach or Default of this Agreement. Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise commercially reasonable efforts to cure the condition causing the Unavoidable Delay, within a reasonable time.
5.6 Real Estate Commissions. Seller shall not be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement, if any. Buyer shall pay any fees or commissions or other expenses related to Buyer's retention or employment of real estate brokers, agents or other professionals, if any.
5.7 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 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 or give any Third Person any right of subrogation or action over or against any Party.
5.8 Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
5.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence.
5.10 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Premises.
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5.11 Waivers and Amendments. All waivers of the provisions of this Agreement must be in writing and signed by the authorized representatives) of the Party making the waiver.
Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. All amendments to this Agreement must be in writing and signed by the authorized representatives) of both Seller and Buyer.
12 Survival of Agreement. All of the provisions of this Agreement shall b pplicable to any dispute between the Parties arising from this Agreement. whether prior to o following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non-appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies shall survive any expiration or termination of this Agreement.
5.13 Counterparts. This Agreement may be signed in multiple counterpart originals each of which is deemed to be an original and all of which shall constitute one agreement.
5.14 Facsimile or Electronic Signatures. Signatures delivered by facsimile or electronically shall be binding as originals upon the Party so signing and delivering; provided, however, that original signature(s) of each Party shall be required for each document to be recorded.
[Signatures on following page]
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SIGNATURE PAGE
TO
REAL PROPERTY PURCHASE ANSTRUCTAN EMENT AND JOINT ESCROW IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and through the signatures of their respective authorized representative(s) as follow:
SELLER: BUYER:
CITY OF POMONA, a California PATTI MAHAFFEY TRUST DATED municipal corporation FEBRUARY 28, 1996
By:_
James Makshanoff By:
City Manager Patricia M. Mahaffey
Trustee of the Patti Mahaffey Trust
Dated February 28, 1996
Date:
Date:
Attest:
By:
Secretary to City Council
Approved as to form:
Best Best & Krieger LLP
By:_
City Counsel
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EXHIBIT A
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
Premises Legal Description
As al poperty in the City of Los Angeles, County of Los Angeles, State of California, described LOTS 17 THROUGH 21 IN BLOCK "A" OF HOTEL PALMOARES SYNDICATE SUBDIVISION OF BLOCK 154 OF THE CITY OF POMONA, IN THE CITY OF POMONA,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 25 PAGE 79 OF MISCELLANEOUS RECORDS, IN THE COUNTY RECORDERS OFFICE OF SAID COUNTY, TOGETHER WITH THE NORTHERLY 5 FEET OF CENTER STREET ADJOINING SAID LOTS 17 THROUGH 21 OF SAID BLOCK A, ON THE SOUTH, AS VACATED BY RESOLUTION NO. 151 OF THE CITY OF POMONA.
APN: 8336-021-901
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EXHIBIT B
TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
Grant Deed
[See attached]
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EXHIBIT B
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
APN: 8336-021-901 SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from Recording Fees - Government Code section 27383
GRANT DEED
The undersigned declares:
Documentary Transfer Tax is:
County of Los Angeles; City of Pomona
Assessor's Parcel Nos.: 8336-021-901
• computed on full value of interest or property conveyed, or • computed on full value of liens or encumbrances remaining at time of sale.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The City of Pomona, a California municipal corporation ("Grantor"), hereby grants to
Patti Mahaffey Trust dated February 28, 1996 ("Grantee"), that certain real property legally described in Exhibit "1" attached to and by this reference incorporated into this Grant Deed, subject to:
Real property taxes and assessments, not delinquent.
2. Covenants, conditions, restrictions, easements, exceptions, reservations, rights, rights-of-way and other matters of record.
Dated: The City of Pomona, a California municipal
corporation
By:
James Makshanoff
City Manager
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EXHIBIT "1"
TO
GRANT DEED
Legal Description
As al ruperty in the City of Los Angeles, County of Los Angeles, State of California, described LOTS 17 THROUGH 21 IN BLOCK "A" OF HOTEL PALMOARES SYNDICATE SUBDIVISION OF BLOCK 154 OF THE CITY OF POMONA, IN THE CITY OF POMONA,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 25 PAGE 79 OF MISCELLANEOUS RECORDS, IN THE COUNTY RECORDERS OFFICE OF SAID COUNTY, TOGETHER WITH THE NORTHERLY 5 FEET OF CENTER STREET ADJOINING SAID LOTS 17 THROUGH 21 OF SAID BLOCK A, ON THE SOUTH, AS VACATED BY RESOLUTION NO. 151 OF THE CITY OF POMONA.
APN: 8336-021-901
2880077.1