HomeMy WebLinkAboutResolution No. 07-R470
RESOLUTION NO. 07-R47
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A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY
OF AZUSA APPROVING A PURCHASE AND SALE AGREEMENT WITH
THE METRO GOLD LINE CONSTRUCTION AUTHORITY FOR THE
PURCHASE OF THE NORTHERLY FORTY FEET OF APN: 8608-024-900
AND APN: 8608-028-907 IN ITS ENTIRETY WITHIN THE MERGED
CENTRAL BUSINESS DISTRICT AND WEST END REDEVELOPMENT
PROJECT
WHEREAS, the Redevelopment Agency of the City of Azusa ("Agency") is engaged in
activities necessary to execute and implement the Redevelopment Plan of the City of Azusa
("Redevelopment Plan") as it pertains to the Merged Central Business District and West End
Redevelopment Projects ("Project Area"); and
WHEREAS, the Metro Gold Line Construction Authority, a California joint powers
authority, ("Owner") is the owner of certain real property located within the Project Area, generally
described as the northerly forty feet of APN: 8608-024-900 and APN: 8608-028-907 in its entirety
("Property"), and more particularly described in Exhibit A of the purchase and sale agreement
attached hereto and incorporated herein by reference; and
WHEREAS, the Owner desires to sell the Property to the Agency and the Agency desires to
purchase the Property from the Owner in accordance with the terms and conditions set forth in the
purchase and sale agreement attached hereto as Exhibit B and incorporated herein by reference
("Agreement" ); and
WHEREAS, the Agency is authorized to acquire the Property for purposes of
redevelopment pursuant to Section 33391 of the Community Redevelopment law (Health & Safety
Code § 33000, et seq); and
WHEREAS, the acquisition of the Property will assist the Agency's goal to revitalize and
improve the retail and residential opportunities in the Project Areas and further assist the City's
efforts in transforming the downtown into a transit village that is more prosperous, walkable,
healthy and economically viable; and
WHEREAS, this Agreement pertains to and affects the ability of the Agency to finance its
activities and carry out its statutory obligations and the goals of the Redevelopment Plan. It is
intended to be a contract within the meaning of Government Code §53511; and
WHEREAS, in taking this action, the Agency has determined that the acquisition of the
property is not a "project" under the provisions of the California Environmental Quality Act, the
California Environmental Quality Act Guidelines (Title 14 C.C.R. §15004) and the City of Azusa's
environmental procedures.
NOW, THEREFORE, BE IT RESOLVED by the Governing Board of the Redevelopment
Agency of the City of Azusa as follows:
SECTION 1. All of the Recitals set forth above are true and correct.
SECTION 2. Based on all of the foregoing, the Agency hereby approves the Agreement
for the purchase of certain real property generally located at APN: 8608-024-900 and APN: 8608-
028-907 in its entirety more particularly described in Exhibit A and attached hereto and
incorporated herein by reference. The Agency further authorizes the Chairperson to execute said
Agreement.
SECTION 3. A copy of the Agreement shall be kept on file at City Hall. Staff is directed
to do all that is necessary to effectuate the intent of the Agreement and consummate the purchase of
the Property.
SECTION 4. The Agency Secretary shall certify the adoption of this Resolution.
PASSED AND APPROVED this 17`s day of December, 2007.
10"Xej 49 1'1
Josepfi R. Rocha, Chairman
I HEREBY CERTIFY that the foregoing Resolution No. 07-R47, was duly passed,
approved, and adopted by the Board of Directors of the Redevelopment Agency of the City of
Azusa, at a regular meeting of said Board held on the 17`s day of December, 2007, by the
following vote of the Board:
AYES: BOARDMEMBERS: GONZALES, CARRILLO, MACIAS, ROCHA
NOES: BOARDMEMBERS: NONE
ABSTAIN: BOARDMEMBERS: HANKS
ABSENT: BOARDMEMBERS: NONE
Mendoza'Vera
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made as of December 2007 ("Effective Date"), and
is entered into by and between the METRO GOLD LINE CONSTRUCTION AUTHORITY, a
public body organized under the laws of the State of California ("Seller"), and the
REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and
politic ("Buyer").
RECITALS:
A. Seller is the owner of fee title to parcels identified as Assessor Parcel Number
8608-024-900 ("Target Site") and Assessor Parcel Number 8608-028-907 ("Watt Dalton Site")
as more particularly described in Exhibit "A" attached hereto and incorporated herein by
reference. (collectively, the "Property"). The term "Property".as used herein includes, without
limitation, all of Seller's right, title and interest in and to any and all improvements, fixtures,
adjacent streets, alleys, appurtenant easements and rights of way, sewer rights, utility rights,
entitlements, claims, or other benefits in any way connected with the Property.
B. The total site to be acquired is approximately 17,420 square feet with the Target
Site parcel measuring 12,800 square feet ($35.00 per sq. ft.) and the Watt Dalton Site parcel
measuring 4,620 square feet ($35.00 per sq. ft). The Target Site is situated within the Central
Business District Redevelopment Area and the Watt Dalton Site is situated within the proposed
added area to the Central Business District Redevelopment Area ("Project Areas").
C. Redevelopment of the Property for a mixed use project will assist the Agency in
its goals to revitalize and improve the retail opportunities and the housing supply in the Project
Areas and assist the City in revitalizing the downtown to be a transit village that is prosperous,
walkable, healthy and economically viable.
D. Seller is pursuing construction of the Metro Gold Line Foothill Extension light
rail line, Segment 1 of which will run from Pasadena to Azusa ("Segment 1").
E. The parties acknowledge that a station for Segment 1 is contemplated at Alameda
Avenue in the City of Azusa (the "Alameda Station"), and that the Final Environmental Impact
Report for Segment I contemplates 200 parking spaces to be provided at the Alameda Station by
the commencement of revenue operations of Segment 1, and an additional 200 parking spaces by
the year 2025.
F. It is the intent of the parties that, should Buyer provide or cause to be provided to
Seller 400 parking spaces within the Retail Project, Seller shall purchase those spaces for the
amount of the Purchase Price (as defined herein).
G. Agency desires to purchase and acquire from Seller and Seller desires to sell and
convey to the Agency fee title to the Property pursuant to the terms and conditions contained in
this Agreement.
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AGREEMENT:
NOW THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein, the mutual covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
agree as follows:
1. Purchase and Sale.
Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the
Property from Seller, upon the terms and subject to the conditions contained herein.
2. Purchase Price.
2.1 The purchase price for the Property shall be Six Hundred and Nine
Thousand Seven Hundred Dollars ($609,700.00) (the "Purchase Price"), which includes,
without limitation, full payment of just compensation, relocation benefits, leasehold
interests, lease bonus value, goodwill, furniture, fixtures and equipment, attorneys' fees,
costs, interest, and damages in complete settlement of all claims (known and unknown),
causes of action and demands of Seller against the Buyer because of Buyer's purchase of
the Property, and for any and all claims (known and unknown) arising from or relating to
the purchase and sale which is the subject of this Agreement.
2.2 Although the Purchase Price provides for complete satisfaction of any
relocation benefits to which the Seller may be entitled, Buyer and Seller acknowledge
that, independent of any Seller's relocation benefits, that Seller's tenant(s), who occupied
the Property at the time negotiations for the purchase of this Property was initiated, may
be entitled to the payment of statutory relocation benefits. Seller hereby agrees to satisfy
any and all obligations with respect to providing relocation benefits to such tenant(s) to
the extent that he or she is entitled under the law as a result of Buyer's purchase of this
Property. In furtherance of that obligation to satisfy all relocation claims, Seller does
hereby agree to defend and indemnify Buyer against any and all claims for relocation
benefits arising out of or in any way related Buyer's acquisition of the Property.
2.3 At Close of Escrow (defined below), Buyer shall pay Seller through
escrow the Purchase Price, payable in cash, by cashier's check or certified check.
3. Escrow; Certain Defined Terms.
3.1 Promptly after the mutual execution of this Agreement, the parties shall
open an escrow (the "Escrow") at Southland Title Company ("Escrow Holder"),
, Burbank, California Attn: ,
Escrow Officer, Phone: (818) Fax: (818) and shall
deliver a copy of this executed Agreement with Escrow Holder. This Agreement shall
then constitute the initial instructions of the parties as to the terms and conditions of the
Escrow.
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3.2 As used herein: (i) the "Opening of Escrow" means the date Escrow
Holder agrees to act as "Escrow Holder" in accordance with this Agreement; (ii) the
"Close of Escrow" means the recording of the "Deed" (as defined below) in the Official
Records of Los Angeles County, California; and (iii) the "Closing Date" means the date
that is thirty (30) days after the last day of the Due Diligence Period (as defined in
Section 5.1 below). As used herein, the term "Deed" shall mean a "Grant Deed" in the
form attached hereto as Exhibit `B" (which must be executed by both Buyer and Seller
and acknowledged prior to the Close of Escrow).
3.3 Within five (5) days after the Effective Date hereof, Buyer shall deliver to
Escrow Holder an earnest money deposit in the amount of Fifty Thousand
Dollars ($50,000.00) (the "Deposit") in the form of a cashier's check, by a federal wire
transfer, or other form acceptable to the Escrow Holder. The Deposit shall be placed in
an interest-bearing bank account (the "Escrow Account") and all interest accruing
thereon shall increase and become a part of the Deposit. On the Close of Escrow, the
Deposit shall be applied toward the Purchase Price. The remaining balance of the
Purchase Price shall be payable by Buyer in the form of a cashier's check, federal wire
transfer, or other form acceptable to the Escrow Holder and placed in the Escrow
Account on or before the Close of Escrow. Except as set forth in Section 8 hereof, the
Deposit shall be non-refundable and shall be applied toward the Purchase Price at the
Close of Escrow.
4. Closing Costs. Seller shall pay for a CLTA title insurance policy for the Property.
If Buyer desires extended coverage and/or an ALTA policy, or any endorsements, Buyer shall
pay the additional cost thereof, provided that issuance of an ALTA policy and/or any
endorsements shall not be a condition to the Close of Escrow. In any event, Buyer is solely
responsible for obtaining and paying for any survey necessary therefor. The escrow fees shall be
paid half by Seller and half by Buyer. Seller shall pay all documentary transfer taxes in
connection with recording the Deed.
5. Due Diligence; Title; Contingency. Buyer's obligation to purchase the Property is
subject to Buyer's approval, waiver or deemed approval, during the "Due Diligence Period" (as
defined below), of the contingencies set forth in Sections 5_2 and 5_3, which approval or waiver
shall be given or withheld in Buyer's sole discretion. Buyer shall promptly commence, and
diligently pursue, its due diligence review of the Property. Buyer's disapproval, or deemed
disapproval, of any such contingencies prior to the expiration of the Due Diligence Period, shall
automatically terminate this Agreement without liability of either party therefor (except for those
provisions that expressly survive any such termination).
5.1 Due Diligence Period. Buyer shall have until 5:00 p.m. on the date that is
sixty (60) days after the Effective Date (the "Due Diligence Period"). to make such
investigations, tests and studies of the Property as Buyer deems appropriate. Buyer's due
diligence of the Property, including physical inspections, shall be at Buyer's sole cost and
expense.
5.2 Property Inspections. Buyer and its agents and/or employees may enter
the Property during the Due Diligence Period to make tests or other studies; provided,
however, that Buyer does all of the following: (i) not unreasonably interfere with the use
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of the Property by Seller, (ii) not conduct any invasive testing (including the groundwater
beneath the Property) without the prior consent of Seller, not to be unreasonably withheld
or delayed, (iii) pay for all tests and studies, (iv) promptly following any termination of
this Agreement, deliver to Seller a copy of any test, study, report, survey' or other
document obtained by Buyer with respect to the Property, (v) keep the Property free and
clear of any liens arising out of such entry or such tests and studies, (vi) promptly repair
all damage caused by such entry or such tests and studies, and (vii) release, defend,
indemnify and hold Seller harmless from and against any and all liabilities, claims, liens,
demands, damages and costs of any kind whatsoever (including attorney, expert and
consultant fees and other costs of litigation) arising from or in connection with such
entry, inspections, tests and studies. The foregoing shall be continuing obligations of
Buyer surviving the Close of Escrow and any termination of this Agreement.
5.2.1 Notice. Buyer shall have until the expiration of the Due Diligence
Period to deliver to Seller a written notice disapproving the Property and
terminating this Agreement.
5.2.2 Confidential. Except as required by applicable law, Buyer shall
keep the results of all tests and studies of the Property confidential and shall not
disclose the results thereof to any outside parties (beyond its employees,
members, attorneys, consultants, agents or representatives).
5.2.3 Ems. Buyer shall give Seller not less than one (1) business day
prior notice of any entry onto the Property. Such notice shall specify the day and
time of each such entry. Seller may accompany Buyer during any such entry,
which shall occur during normal business hours.
5.3 Title Condition and Transfer Instruments
5.3.1 Title Documents. Within five (5) days after the Effective Date,
Escrow Holder shall deliver to Seller and Buyer a preliminary report for the
Property from Southland Title Company ("Title Company"), together with copies
of all instruments noted as exceptions therein (the "Preliminary Title Report").
Buyer shall have until the expiration of the Due Diligence Period to deliver to
Seller a notice of any objection to the condition of title to the Property as
described in the Report; provided, however, that Buyer shall not have the right to
object to: (i) matters affecting title suffered or created by, or with the consent of,
Buyer; (ii) any matter in the Deed. Buyer's failure to object to any condition of
title to the Property as described in the Report prior to the expiration of the Due
Diligence Period shall be conclusively deemed Buyer's approval/waiver of the
contingency set forth in this Section 5.3.
5.3.2 Title Policv. At the Close of Escrow, Seller shall convey the
Property to Buyer by the Deed. Buyer's title shall be evidenced by the
willingness of Title Company to issue its standard CLTA Owner's Form Policy of
Title Insurance (the "Title Policy") in the amount of the Purchase Price, showing
title to the Property vested in Buyer subject to the exceptions described in
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Section 5.3.1 and any other
Buyer (collectively, the "Pen
6. Seller's Acknowledgement
the following:
6.1 SELLER ACKN(
APPLICABLE PROVISIONS OF CALIF
THE PAYMENT OF RELOCATION EXI
JUST COMPENSATION, INVERS
CONDEMNATION CONDUCT, AND
OTHER THAN THOSE EXPRESSL
(COLLECTIVELY, "BENEFITS") IN C(
THE PROPERTY. SELLER, ON BEHA
ADMINISTRATORS, SUCCESSORS Al`
PERFORMANCE UNDER THIS AGRE
SATISFACTION OF BUYER'S OBLIG)
SELLER.
6.2 SELLER HEREBY V6
ANY AND ALL CLAIMS, REMEDIES
LIABILITIES, LOSSES OR INJURIES F
PROPERTY, WHETHER KNOWN
UNFORESEEABLE. THE PARTIES HE
SETTLEMENT OF CLAIMS IN ORDER
ANY MANNER BE CONSTRUED AS A
OF THE PROPERTY, OR OF ANY LIRE
SELLER ON BEHALF OF HIMSELF AN]
SUCCESSORS AND ASSIGNS, HEREBI
AGENTS, REPRESENTATIVES AND
ASSOCIATIONS, KNOWN AND UNK.`
ACTION BY REASON OF ANY DAMAC
SUSTAINED, AS A RESULT OF BUY]
PRELIMINARY STEPS THERETO.
6.3 Seller hereby acknowl
had an opportunity to consult with legal c
familiar with, the provisions of California
"A GENERAL RELEASE
WHICH THE CREDITOR
TO EXIST IN HIS OR
EXECUTING THE RELE,
OR HER MUST HAVE D
HER SETTLEMENT WITS
0
ions in the Report not timely disapproved by
Exceptions").
Full Release. Seller acknowledges and agrees to
"LEDGES THAT, IN ACCORDANCE WITH
ZNIA LAW, SELLER MAY BE ENTITLED TO
JSES, PAYMENTS FOR LOSS OF GOODWILL,
CONDEMNATION, UNLAWFUL PRE-
rHER BENEFITS AND REIMBURSEMENTS
PROVIDED FOR IN THE AGREEMENT
NECTION WITH BUYER'S ACQUISITION OF
OF ITSELF AND ITS HEIRS, EXECUTORS,
ASSIGNS, ACKNOWLEDGES THAT BUYER'S
[ENT CONSTITUTES FULL AND COMPLETE
[ONS TO PROVIDE THE BENEFITS TO THE
DIVES, TO THE MAXIMUM LEGAL EXTENT,
AND CAUSES OF ACTION FOR DAMAGES,
SLATED TO BUYER'S ACQUISITION OF THE
OR UNKNOWN, FORESEEABLE OR
ETO AGREE THAT THIS AGREEMENT IS A
CO AVOID LITIGATION AND SHALL NOT, IN
[ ADMISSION OF THE FAIR MARKET VALUE
LITY BY ANY PARTY TO THIS AGREEMENT.
HIS HEIRS, EXECUTORS, ADMINISTRATORS,
FULLY RELEASES BUYER, ITS SUCCESSORS,
.SSIGNS, AND ALL OTHER PERSONS AND
AWN, FROM ALL CLAIMS AND CAUSES OF
i WHICH HAS BEEN SUSTAINED, OR MAY BE
3'S PURCHASE OF THE PROPERTY OR ANY
that it has either consulted with legal counsel or
1 regarding, and represents and warrants that it is
Code Section 1542, which provides:
DOES NOT EXTEND TO CLAIMS
DOES NOT KNOW OR, SUSPECT
IER FAVOR AT THE TIME OF
SE, WHICH IF KNOWN BY HIM
ATERIALLY AFFECTED HIS OR
THE DEBTOR."
RVPUB\PKNOX\742223.4 1 5
Seller acknowledges that with respect to the sale of the Property to Buyer, Seller 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, Seller hereby acknowledges,
represents and warrants that this Agreement has been negotiated and agreed upon in light of that
situation, and hereby waives, to the maximum legal extent, any rights accruing to him under
Section 1542 or other statute or judicial decision of similar effect.
Seller's Initials:
This acknowledgment and release shall survive the Close of Escrow.
7. Condition of Property. Buyer acknowledges and agrees to the following:
7.1 (I) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN
"AS IS, WHERE IS" BASIS; AND (II) EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE OF, AS TO, CONCERNING OR WITH RESPECT TO THE
PROPERTY OR ANY OTHER MATTER WHATSOEVER.
7.2 BUYER IS SOPHISTICATED AND FAMILIAR WITH REAL ESTATE
PROJECTS SIMILAR TO THE PROPERTY AND THAT BUYER HAS, OR WILL
HAVE, ADEQUATE OPPORTUNITY TO COMPLETE ALL PHYSICAL,
ENVIRONMENTAL AND FINANCIAL EXAMINATIONS RELATING TO ITS
ACQUISITION OF THE PROPERTY THAT IT DEEMS NECESSARY, AND
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, WILL ACQUIRE
THE PROPERTY SOLELY ON THE BASIS OF, AND IN RELIANCE UPON, SUCH
EXAMINATIONS AND THE PROTECTION AFFORDED BY THE TITLE POLICY,
AND NOT ON ANY INFORMATION PROVIDED BY, OR RECEIVED FROM,
SELLER.
7.3 BUYER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION RECEIVED BY BUYER FROM SELLER (OR ANY AGENT,
REPRESENTATIVE, DIRECTOR, OFFICER, EMPLOYEE OR OTHER PERSON OR
ENTITY ACTING ON SELLER'S BEHALF) WITH RESPECT TO THE PROPERTY
WAS PROVIDED SOLELY FOR BUYER'S CONVENIENCE AND WAS OBTAINED
FROM A VARIETY OF SOURCES AND SELLER DID NOT MAKE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO (AND EXPRESSLY DISCLAIMS ALL) REPRESENTATIONS OR
WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SELLER SHALL
NOT BE LIABLE FOR ANY FAILURE TO INVESTIGATE THE PROPERTY OR
FOR ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS,
APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS OR OTHER
RVPUBTKNOM742223.4 6
INFORMATION FURNISHED TO BUYER BY SELLER (OR ANY AGENT,
REPRESENTATIVE, DIRECTOR, OFFICER, EMPLOYEE OR OTHER PERSON OR
ENTITY ACTING ON SELLER'S BEHALF).
7.4 Buyer, hereby fully and entirely releases and discharges Seller from any
and all claims, liabilities, losses, damages and expenses, of whatever nature, anticipated
or unanticipated, known or unknown, on account of the release or presence of any
Hazardous Substances (as hereinafter defined) in, on, under, or about the Property,
including but not limited to the cost of cleaning up the Property and removing Hazardous
Substances. In connection with such release, Buyer hereby waives all benefits of
provisions of California Civil Code Section 1542, which states as follows:
"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 BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
Buyer's Initials:
Notwithstanding anything to the contrary set forth in this Agreement, the waivers
and foregoing release are not intended to and do not cover any claims arising from a
breach by Seller of any of its representations, warranties, covenants or other obligations
as set forth in this Agreement.
As used herein, the term "Hazardous Substances" means any and all hazardous
substances, including, without limitation, lead-based paint, asbestos and all of the
following:
(a) Those substances included within the definitions of hazardous
substance, hazardous waste, hazardous material, toxic substance, solid waste, or
pollutant or contaminant in CERCLA, RCRA, TSCA, HMTA, or under any other
Environmental Law;
(b) Those substances listed in the United States Department of
Transportation (DOT) Table [49 CFR 172.101], or by the Environmental
Protection Agency (EPA), or any successor agency, as hazardous substances (40
CFR Part 3021;
(c) Other substances, materials, and wastes that are or become
regulated or classified as hazardous or toxic under federal, state, or local laws or
regulations; and
(d) Any material, waste, or substance that is:
(i) a petroleum or refined petroleum product,
(ii) asbestos,
RVPUB\PKNOX\742223.4 7
(iii) polychlorinated biphenyl,
(iv) designated as a -hazardous substance pursuant to 33
USCS § 1321 or listed pursuant to 33 USCS § 1317,
(v) a flammable explosive, or
(vi) a radioactive material.
As used herein, the term "Environmental Laws" means all federal, state, local, or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of
any government authority regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance (as later defined), or pertaining to occupational health or
industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws,
ordinances, or regulations relate to Hazardous Substances on, under, or about the Property),
occupational or environmental conditions on, under, or about the Property, as now or may at any
later. time be in effect, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA) [42 USCS §§ 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS §§ 6901 et seq.]; the
Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USCS
§§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS §§ 2601 et seq.]; the
Hazardous Materials Transportation Act (HMTA) [49 USCS §§ 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USCS §§ 136 et seq.]; the Superfund Amendments and
Reauthorization Act [42 USCS §§ 6901 et seq.]; the Clean Air Act [42 USCS §§ 7401 et seq.];
the Safe Drinking Water Act [42 USCS §§ 300f et seq.]; the Solid Waste Disposal Act [42 USCS
§§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS §§ 1201 et seq.];
the Emergency Planning and Community Right to Know Act [42 USCS §§ 11001 et seq.]; the
Occupational Safety and Health Act [29 USCS §§ 655 and 657]; the California Underground
Storage of Hazardous Substances Act [H & S C §§ 25280 et seq.]; the California Hazardous
Substances Account Act [H & S C §§ 25300 et seq.]; the California Hazardous Waste Control
Act [H & S C §§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act
[H & S C §§ 24249.5 et seq.]; the Porter -Cologne Water Quality Act [Wat C §§ 13000 et seq.]
together with any amendments of or regulations promulgated under the statutes cited above and
any other federal, state, or local law, statute, ordinance, or regulation now in effect or later
enacted that pertains to occupational health or industrial hygiene, and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations relate.to Hazardous
Substances on, under, or about the Property, or the regulation or protection of the environment,
including ambient air, soil, soil vapor, groundwater, surface water, or land use.
7.5 From or after the Close of Escrow, Buyer shall indemnify, protect, defend
and hold harmless Seller and its officials, officers, attorneys, employees, consultants, agents and
representatives, from and against any and all claims, liabilities, suits, losses, costs, expenses and
damages, including but not limited to attorneys' fees and costs, arising directly or indirectly out
of any claim for loss or damage to any property, including the Property, injuries to or. death of
persons, or for the cost of cleaning up the Property and removing Hazardous Substances
(including, without limitation, asbestos and lead-based paint), by reason of the release of any
Hazardous Substances that occurs during Buyer's period of ownership of the Property.
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7.6 Sections 7.1 through 7_5 and this Section 7.6 shall survive the Close of
Escrow, and shall not be deemed to have merged into any of the documents, including the Deed,
executed or delivered at the Close of Escrow.
8. Taxes and Prorations. Escrow Holder shall prorate all current and non -delinquent
installments of real property taxes and assessments on the Property as of the Closing Date. If
any items to be prorated cannot be accurately calculated on the Closing Date, they shall be
prorated on an estimated basis and re -prorated as soon thereafter as feasible, or, at Seller's
election, prorated after the Close of Escrow. This Section 8 shall survive the Close of Escrow,
and shall not be deemed to have merged into any of the documents, including the Deed, executed
or delivered at the Close of Escrow.
9. Buyer's Contingencies. Buyer's obligation to consummate the purchase of the
Property is hereby conditioned upon the occurrence of all of the following (or Buyer's written
waiver thereof) on or before the Close of Escrow:
(a) Title Company's commitment to Buyer to issue the Title Policy in favor of
Buyer with a liability amount equal to the Purchase Price showing Buyer's fee interest in the
Property subject only to the Permitted Title Exceptions.
(b) Seller's delivery of all documents required to be delivered by Seller
pursuant to Section 11 hereof.
(c) The absence of a material adverse change in the condition of the Property
after Buyer's approval of the condition that has changed.
(d) Seller not being in default under this Agreement.
If any of the foregoing conditions precedent have not been either met to Buyer's sole
satisfaction or expressly waived in writing by Buyer on or before the Closing Date, then this
Agreement shall terminate at the option of Buyer, Buyer shall be entitled to the immediate refund
of the Deposit and, except as expressly set forth in this Agreement, neither party shall have any
further rights, duties and obligations hereunder.
10. Seller's Contingencies. Seller's obligation to consummate the sale of the Property
is hereby conditioned upon the occurrence of all of the following (or Seller's written waiver
thereof) on or before the Close of Escrow:
(a) Deposit by Buyer of the Purchase Price (less the amount of the Deposit),
and all other sums to be deposited by Buyer in Escrow in accordance with the requirements
hereof.
(b) Buyer's delivery of all documents required to be delivered by Buyer
pursuant to Section I 1 hereof.
(c) Buyer not being in default under this Agreement.
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If all the foregoing conditions precedent have not been either met to Seller's sole
satisfaction or expressly waived in writing by Seller on or before the Closing Date, then this
Agreement shall terminate at the option of Seller, and, except as expressly set forth in this
Agreement, neither party shall have any further rights, duties and obligations hereunder.
11. Closings Deliveries by Seller and Buyer.
11.1 On or before the Closing Date, Seller shall deliver to Escrow Holder the
following:
11.1.1 The Deed (or counterpart thereof) executed by Seller and
acknowledged;
11.1.2 An affidavit executed by Seller certifying that Seller is not a
"foreign person" within the meaning of Internal Revenue. Code Section
1445(f)(3), as amended;
11.1.3 A California Form 593-C executed by Seller; and
11. 1.4 Any other documents, instruments or agreements necessary for the
Close of Escrow.
11.2 On or before the Closing Date, Buyer shall deliver to Escrow Holder the
following:
11.2.1 The Purchase Price;
11.2.2 The Deed (or counterpart thereof) executed by Buyer and
acknowledged; and
11.2.3 Any other documents, instruments or agreements necessary for the
Close of Escrow.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow,
Escrow Holder shall:
12.1 Cause the Deed to be recorded in the Official Records of Los Angeles
County, California;
12.2 Cause the Title Company to deliver the Title Policy to Buyer;
12.3 Deliver to Seller and Buyer conformed copies of all documents recorded
in the Official Records of Los Angeles County, California in connection with the Close
of Escrow;
12.4 Deliver to Seller the original executed Note; and
12.5 Deliver, to the appropriate parties, any other documents, instruments or
agreements to be delivered through the Escrow pursuant to the terms of this Agreement.
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13. Condemnation; Destruction. All risk of loss with respect to the Property shall
remain with Seller until after the Close of Escrow and delivery of possession of the Property to
Buyer. If at any time prior to the Close of Escrow, the Property, or any portion thereof, is
damaged by fire or other casualty or taken or appropriated through eminent domain or similar
proceedings, or is condemned for any public or quasi -public use, Buyer may terminate this
Agreement. If Buyer terminates this Agreement, the Deposit shall be returned to Buyer and
Seller shall be entitled to receive all insurance proceeds payable to Seller and all condemnation
proceeds actually paid for that portion of the property taken. If Buyer elects to maintain this
Agreement in full force and effect, Buyer shall be entitled to receive all insurance proceeds
payable to Seller or all condemnation proceeds actually paid for that portion of the Property
taken or, if such proceeds have been paid to Seller, Buyer shall receive a credit against the
Purchase Price equal to the amount of proceeds actually paid to Seller.
14. Brokerage Commissions. Buyer and Seller each represent that there are no
broker's commissions or finder's fees due in connection with this transaction. Buyer and Seller
shall each hold harmless and indemnify the other from any claims of brokers, agents or finders,
licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying
party with respect to the transaction contemplated hereunder.
15. Liquidated Damages. SELLER AND BUYER AGREE THAT THE AMOUNT
OF DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT BUYER FAILS TO
ACQUIRE THE PROPERTY BY REASON OF A DEFAULT BY BUYER HEREUNDER
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND
THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' REASONABLE
ESTIMATE OF THE AMOUNT OF SUCH DAMAGES CONSIDERING ALL OF THE
CIRCUMSTANCES EXISTING ON THE DATE HEREOF, INCLUDING THE
RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF HARM TO SELLER THAT
REASONABLY COULD BE ANTICIPATED, AND THE ANTICIPATION THAT PROOF OF
ACTUAL DAMAGES WOULD BE COSTLY, IMPRACTICAL OR INCONVENIENT.
ACCORDINGLY, IN THE EVENT THAT BUYER FAILS TO ACQUIRE THE PROPERTY
BY REASON OF A DEFAULT BY BUYER HEREUNDER, SELLER SHALL BE ENTITLED
TO RECEIVE AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. SUCH
LIQUIDATED DAMAGES AMOUNT SHALL BE IN ADDITION TO, AND SHALL NOT BE
DEEMED TO INCLUDE, ANY ATTORNEYS' FEES THAT MAY BECOME DUE TO
SELLER PURSUANT HERETO. BY INITIALING BELOW, SELLER AND BUYER EACH
SPECIFICALLY CONFIRMS THE ACCURACY OF THE FOREGOING STATEMENTS,
AND AFFIRMS ITS RESPECTIVE OBLIGATIONS UNDER THIS SECTION 14.
Seller's Initials: Buyer's Initials:
16. Limitation of Liability. Notwithstanding anything herein to the contrary, no
agent, advisor, trustee, director, board member, officer, or employee of Seller, shall have any
personal liability, directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this Agreement, or any
amendment or amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Buyer and its successors and assigns and, without limitation, all other.persons and
entities, shall look solely to Seller for the payment of any claim or for any performance, and
RVPUBTKNOK�742223.4 I I
Buyer, on behalf of itself and its successors and assigns, hereby waives any and all such personal
liability. The foregoing shall be in addition to, and not in limitation of, any further limitation of
liability that might otherwise apply (whether by reason of Buyer's waiver, relinquishment or
release of any applicable rights or otherwise).
17. Notices. Any notice, request, direction, demand, consent, waiver, approval or
other communication required or permitted to be given hereunder shall not be effective unless it
is given in writing and shall be delivered (i) in person, (ii) by certified mail, postage prepaid,
return receipt requested, (iii) by facsimile, or (iv) by a commercial overnight courier that
guarantees next day delivery and provides a receipt, and addressed to the parties at the addresses
stated below, or at such other address as either party may hereafter notify the other in writing as
aforementioned:
Seller: Metro Gold Line Foothill Extension Construction Authority
406 E. Huntington Drive, Suite 202
Monrovia, California 91016
Attn: Mr. Habib Balian, Chief Executive Officer
Tel: (626) 471-9050
Fax: (626) 471-9049
With a copy to: Richards, Watson & Gershon
355 S. Grand Avenue, 40'3' Floor
Los Angeles, CA 90071
Attn: Michael Estrada
Facsimile: (213) 626-0078
Buyer: Azusa Redevelopment Agency
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Francis M. Delach, Executive Director
Tel: (626) 812-5238
Fax: (626)
With a copy to:
Service of any such notice or other communications so made shall be deemed effective
on the day of actual delivery (whether accepted or refused) as evidenced by confirmed
answerback if by facsimile (provided that if any notice or other communication to be delivered
by facsimile is unable to be transmitted because of a problem affecting the receiving party's
facsimile machine, the deadline for receiving such notice or other communication shall be
extended through the next business day), as shown by the addressee's return receipt if by
RVPUB\PKNOX\742223.4 12
certified mail, and as confirmed by the courier service if by courier; provided, however, that if
such actual delivery occurs after 5:00 p.m. (local time where received) or on a non -business day,
then such notice or demand so made shall be deemed effective on the first business day
immediately following the day of actual delivery. No communications via electronic mail shall
be effective to give any notice, request, direction, demand, consent, waiver, approval or other
communications hereunder.
18. Transit Parking Spaces. Should Buyer cause to be provided to Seller 400 parking
spaces (the "Transit Parking Spaces") within the Retail Project (defined in Recital B), prior to the
commencement of revenue operations for Segment 1 (defined in Recital C), Seller shall pay to
Buyer (or Buyer's designee) the amount of Purchase Price. The obligation of Seller to pay for
the Transit Parking Spaces is contingent upon all of the following:
(a) The Transit Parking Spaces are available to riders of Segment 1 on
or before the commencement of revenue operations of Segment 1;
(b) The Transit Parking Spaces are located at a location within the
Retail Project acceptable to Seller, easily accessible to/from the Alameda Gold
Line Station, and in compliance with all requirements applicable to such parking;
(c) Seller is provided with title to the Transit Parking Spaces via an
easement in perpetuity, or other mutually acceptable interest in property, in form
and upon terms acceptable to Seller; and
(d) The total cost to Seller for rights to the Transit Parking Spaces
does not exceed the amount of the Purchase Price.
This Section 18 shall survive the Close of Escrow, and shall not be deemed to have
merged into any of the documents, including the Deed, executed or delivered at the Close
of Escrow.
19. Assignment. Neither party may assign or transfer their respective rights or
obligations under this Agreement without the prior written consent of the other party.
20. Interpretation. This Agreement has been negotiated at arm's length and between
persons sophisticated and knowledgeable in the matters dealt with in this Agreement. In
addition, each party has been or has had the opportunity to be represented by experienced and
knowledgeable counsel. Accordingly, any rule of law (including California Civil Code
Section 1654) or legal decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it is not applicable and is waived.
21. Attorneys' Fees. Should any party hereto institute any action or proceeding to
enforce any provision hereof by reason of the alleged breach of this Agreement, the prevailing
party shall be entitled to receive from the losing party such amount as the court may adjudge to
be reasonable attorneys' fees, expert fees, and consultant fees for services rendered to the
prevailing party, and other costs of litigation.
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22. Severability. In the event any provision of this Agreementis declared by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed
from this Agreement and the remaining provisions hereof shall remain in full force and effect as
fully as though such invalid, illegal or unenforceable provision had never been part of this
Agreement, provided that the remaining provisions of this Agreement can be reasonably and
equitably enforced.
23. Successors and Assigns. This Agreement shall be binding upon, and inure to the
benefit of, the successors and assigns of the respective parties hereto. Except for the foregoing,
the provisions of this Agreement are for the sole benefit of the parties hereto, and are not for the
benefit, directly or indirectly, of any other person or entity.
24. Required Actions of Buyer and Seller. Buyer and Seller agree to execute all such
instruments and documents, and to take all actions, as may be required in order to consummate
the transaction contemplated hereby, and shall use their good faith efforts to accomplish the
Close of Escrow in accordance with the provisions hereof.
25. Governing Law and Venue. The validity of this Agreement and any of its
provisions, as well as the rights and obligations of the parties hereunder, shall be interpreted and
construed pursuant to, and in accordance with, the laws of the State of California. The parties
select Los Angeles County, California, as the proper and sole venue for any action filed to
enforce, construe or interpret this Agreement.
26. Entire Agreement; Amendments. This Agreement constitutes the final, complete
and exclusive statement of terms of the agreement between the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous understandings or agreements of the
parties. No party has been induced to enter into this Agreement by, nor is any party relying on,
any representation or warranty outside those expressly set forth in this Agreement. No
amendment or modification of any provision of this Agreement shall be effective unless set forth
in writing, signed by Seller and Buyer.
27. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
28. Confidentiality; Return of information. Buyer shall treat all written information
of whatever nature provided to it by Seller or Seller's agents or representatives (collectively, the
"information") as confidential. Buyer shall not disclose any such information to third parties
without the prior written approval of Seller (except for disclosure to Buyer's employees,
members, attorneys, consultants, agents or representatives), unless Buyer is legally required to
provide such information to a governmental agency or pursuant to legal process. In the event the
Close of Escrow fails to occur for any reason whatsoever (other than a default by Seller), Buyer
shall, within three (3) days thereafter: (i) return, or cause to be returned, to Seller the
information, and (ii) deliver to Seller, at Buyer's sole cost and expense, all reports and analyses
of the Property prepared by, or at the request of, Buyer. Buyer's obligation to deliver the
information and other materials to Seller is independent of, and in addition to, and the making of
such delivery shall not satisfy, any other obligations and liabilities of Buyer hereunder. Further,
Buyer agrees not to use the information (or allow any other party to whom Buy& has delivered
RVPUB\PKNOX%742223.4 14
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the information to use the information) for any purpose other than to determine whether to
proceed with the acquisition, or if acquired, in connection with the ownership, development
and/or operation of the Property after the Closing Date. This Section 26 shall survive the
termination of this Agreement or the Closing Date.
29. Time of Essence. Time is of the essence of each and every provision of this
Agreement.
30. U.S. Treasury Regulation. ation. The Escrow Holder is the "real estate reporting
person" within the meaning of the U.S. Treasury Regulation 1.6045-4 and shall make any reports
to the federal government required by such Regulation.
31. Seller Representations. Seller represents and warrants to Buyer the following:
(a) Adverse Claims. To the best of Seller's knowledge, there are no pending,
threatened or contemplated actions, suits, arbitrations, claims or proceedings, at law or in equity,
affecting the Property or in which Seller is, or will be, a party by reason of Seller's ownership of
the Property.
(b) Governmental Regulations. To the best of Seller's knowledge, there are
no violations of any governmental regulations or laws relating to the Property.
(c) Accuracy of Materials. All instruments, documents, lists, schedules and
items delivered to Buyer by Seller pursuant to this Agreement will fairly present the information
set forth in a manner that is not misleading and will be true, complete and correct in all respects
on'the date of delivery and upon the Close of Escrow, as they may be updated, modified or
supplemented in accordance with this Agreement.
(d) Contracts. There are no contracts or occupancy agreements that affect or
will affect or which are or will be obligations of Buyer or the Property, other than as expressly
disclosed to Buyer in writing.
32. Seller Covenants.
(a) No Modifications. Seller hereby agrees that Seller will not hereafter
modify, extend or otherwise change any of the terms, covenants or conditions of any obligations
or agreements affecting the Property without the prior written consent of Buyer.
(b) Changes in Circumstances. Seller shall promptly notify Buyer of any
change in any condition with respect to the Property or of any event or circumstance which
makes any representation or warranty of Seller under this Agreement untrue or misleading in any
material respect.
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IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement
and Joint Escrow Instructions as of the day and year first written above.
SELLER:
APPROVED AS TO FORM:
Richards, Watson & Gershon
m
Michael Estrada, General Counsel
METRO GOLD LINE CONSTRUCTION
AUTHORITY
Chief Executive Officer
REDEVELOPMENT AGENCY OF THE
CITY OF AZUSA, a public body, corporate and
Politic
By:
Print Name:
Title:
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EXHIBIT "A"
DESCRIPTION OF LAND
0
All that certain real property situated in the County of Los Angeles, State of California,
described as follows:
A-1
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