Resolution No. 80961
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RESOLUTION NO. 8096
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT OF PURCHASE AND,SALE BY AND BETWEEN
THE CITY OF VERNON AND UNITED STATES POSTAL SERVICE
FOR ATLANTIC/BANDINI PROPERTY
WHEREAS, the City of Vernon is in the process of improving
the I-710 Atlantic/Bandini Interchange and, as part of the Project, an
extension of 26th Street over Atlantic and down to Bandini to provide a
bypass road is needed (the "Project"); and
WHEREAS, the United States Postal Service (the "LISPS") is
the owner of certain real property located at the northeasterly corner
of Bandini Avenue and Atlantic Boulevard in the City of Vernon (the
"Property"); and
WHEREAS, the City of Vernon desires to acquire the property
for the Project; and
WHEREAS, the USPS has agreed to sell the Property to the
City on negotiated terms, which the City has determined to be fair and
reasonable; and
WHEREAS, by letter dated October 17, 2002, Bruce V.
Malkenhorst, the City Administrator/City Clerk, recommended that an
Agreement of Purchase and Sale with the USPS be executed.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
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approves the Agreement of Purchase and Sale with the USPS, a copy of
which is attached hereto as Exhibit "A" and made a part hereof.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Agreement for,
and on behalf of, the City of Vernon and to execute and carry into
effect all other documents as shall be required to complete the
acquisition of the Property and to accomplish the close of escrow
consistent with the terms of said Agreement approved herein.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send two fully executed
Agreements to:
United States Postal Service
Attn. David W. Eales, Contracting Officer
4301 Wilson Blvd., #300
Arlington, VA 22203-1861
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 23rd day of October, 2002.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
LEONIS C. MAL URG, M yor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8096, was duly adopted by the City Council of the City of -Vernon at an
adjourned regular meeting of the City Council duly held on Wednesday,
October 23, 2002, and thereafter was duly signed by the Mayor of the
City of Vernon.
(SEAL)
v
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
VA,
AGREEMENT OF PURCHASE AND SALE
(Long form for transactions over $3,000,000)
"SELLER"
UNITED STATES POSTAL SERVICE
CITY OF VERNON
"PROPERTY"
A portion of Lot 92, APN 6332-002-908, located at the northeasterly corner of
Bandini Avenue and Atlantic Boulevard in the City of Vernon, County of Los
Angeles, State of California
Rev. 5/24/01
TABLE OF CONTENTS
ARTICLE I
AGREEMENT TO SELL AND PURCHASE
ARTICLE R
PURCHASE PRICE
2.1
Purchase Price
2.2
Terms of Payment
ARTICLE III
ESCROW AND TITLE
3.1
Escrow
3.2
Agent's Duties
3.3
Condition of Title
3.4
Title Report
3.5
Objections to Title
3.6
Title Insurance Policy
ARTICLE IV
CONDITION OF REAL PROPERTY
4.1
Investigation by Buyer
4.2
Studies and Reports
4.3
Seller's Representations and Warranties
4.4
AS -IS WHERE -IS Purchase
4.5
Damage or Destruction
ARTICLE V
INDEMNIFICATION
5.1
Buyer's Indemnity
5.2
Buyer's Waiver of Claims
5.3
Seller's Indemnity
ARTICLE VI
CLOSING
6.1
Brokers
6.2
Closing
6.3
Closing Agent
6.4
Conditions Precedent
6.5
Non -foreign Person Certificates
6.6
Seller's Obligations
6.7
Buyer's Obligations
6.8
Closing Documents
6.9
Further Documents
6.10
Proration
6.11
Costs
6.12
Other Covenants
6.13
Possession
ARTICLE VII
GENERAL PROVISIONS
7.1
Amendments
7.2
Entire Agreement
7.3
Authority to Execute
7.4
Notices
7.5
Assignment
7.6
Survival of Agreement
7.7
No Recordation
7.8
Governing Law
7.9
Construction
7.10
Damages
7.11
Disputes and Attorneys' Fees
2
r
7.12
Counterparts
7.13
Waiver
7.14
No Third Party Beneficiary Rights
7.15
Time of Essence
3
2UNITED S TA TES
POSTAL SERVICE.
AGREEMENT OF PURCHASE AND SALE
(Long form for transactions over $3,000,000)
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is entered into by the United States
Postal Service ("Seller") and the City of Vernon, a municipal corporation ("Buyer").
ARTICLE I
AGREEMENT TO SELL AND PURCHASE
Seller is the owner of certain real property located at the northeasterly corner of Bandini Avenue and Atlantic
Boulevard, City of Vernon, California ("Property"), as more particularly described in Exhibit A attached hereto
and made a part hereof. Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from
Seller, on the terms and conditions contained in this Agreement. This Agreement becomes effective on the date
executed by Seller ("Effective Date"). Buyer has the right to terminate this Agreement prior to November 14, 2002
(the "Contingency Removal Date") in accordance with 14.1.2 and have the Initial Deposit, as defined in ¶2.2.1,
returned to Buyer. The purchase and sale transaction contemplated by this Agreement shall close (the "Closing")
on or before December 5, 2002, (the "Closing Date") unless extended by the mutual written agreement of the
parties. If the Closing extends beyond the Closing Date, this Agreement shall terminate and any deposits(s) paid
on account, pursuant to ¶2.2.1, returned to the Buyer.
ARTICLE H
PURCHASE PRICE
2.1 Amount of Purchase Price. The total purchase price ("Purchase Price") for the Property shall be
Six Million Three Hundred Ninety -One Thousand Dollars ($6,3 9 1,000.00), payable by Buyer to Seller as follows:
All Cash to Seller.
2.2 Terms of Payment. Buyer shall pay Seller the Purchase Price as follows:
2.2.1 Deposit. Upon Buyer's execution and delivery of this Agreement, Buyer shall pay
Seller the sum of $31,955.00 or 0.005%of the Purchase Price ("Initial Deposit"). Payment shall be made by
cashier's or certified check made payable to the Seller and deposited with the Agent defined in ¶6.3. If Buyer has
not terminated this Agreement pursuant to ¶4.1.2, Buyer shall pay to Seller on or before the Contingency Removal
Date an additional deposit of $95,865.00 or 0.015% of the Purchase Price. This additional amount shall be
deposited with the Agent. The Initial Deposit shall thus have been increased to $127,820.00 or 0.02% of the
Purchase Price (the "Total Deposit"). Agent will hold all deposits in escrow by promptly placing deposits in an
interest -bearing bank account; Agent will provide the parties with all specific information concerning this account,
including bank name, account number, et cetera. Agent will return all deposits, with the interest that has accrued,
to Buyer if either party elects to terminate this Agreement pursuant to ¶3.5, or if Buyer elects to terminate the
Agreement pursuant to ¶¶4.1.2 or 4.5. Agent will forward the Initial Deposit or Total Deposit, without the accrued
interest, to Seller upon any default by Buyer pursuant to ¶17.5 and 7.10. The interest accrued thereon will be
returned to Buyer.
2.2.2 Balance of Purchase Price. Buyer shall deposit the unpaid balance of the Purchase
Price payable to Seller, with the Agent, on or before the Closing Date in accordance with Article VI.
ARTICLE III
ESCROW AND TITLE
3.1 Escrow. Seller agrees to open an escrow in accordance with this Agreement at Fidelity National
Title Company located at 601 S. Figueroa Street, Suite 2130, Los Angeles, California 90017, Attention: Tina
DeBow, Phone (213) 689-9301, Fax (213) 689-9330 ("Agent"). This Agreement constitutes the joint escrow
instructions of Buyer and Seller, and Agency to whom these instructions are delivered is hereby empowered to act
under this Agreement.
3.2 Agent's Duties. Agent is authorized to:
(a) Pay and charge the Seller:
(i) for any delinquent taxes;
(ii) for any penalties and interest thereon;
(iii) for any delinquent or non -delinquent assessments for bonds against the
Property for periods prior to the Closing Date and for any amount necessary to
place title in the condition necessary to satisfy 113.4, 3.5 and 3.6 of this
Agreement;
(iv) for 50% of escrow fees, as well as charges and costs as set forth in this
Agreement; and
(v) brokerage fee to CB Richard Ellis pursuant to a separate agreement.
(b) Pay and charge the Buyer for any transfer taxes, recording fees and 50% of escrow fees,
as well as charges and costs as set forth in this Agreement.
(c) Disburse funds and deliver the deed when conditions of this escrow have been fulfilled
by the Buyer and Seller.
3.3 Condition of Title. At Closing, Seller shall convey the Property to Buyer by Grant Deed
("Deed"), subject only to the following:
(a) Any and all restrictions, covenants, easements, encumbrances, liens of any kind, leases,
and interests of others, including rights -of -way for roads, pipelines, railroads, and public utilities, whether or not
matters of public record;
(b) Applicable zoning and use regulations of any locality, county or state; and
(c) Any other exception that may appear on title information Buyer obtains to which Buyer
does not object under ¶3.5.
3.4 Title Report. Within ten (10) business days after the date escrow is opened, Seller shall obtain or
be furnished by Agency, at Buyer's sole cost and expense, a preliminary title report ("PTR") issued by Fidelity
National Title Company of Newport Beach, California (the "Title Company).
3.5 Objections to Title. Buyer shall notify Seller promptly of any exception regarding Seller's title,
whether reflected on a survey or title report obtained by Buyer or otherwise. Until the Contingency Removal Date,
Buyer or Seller may elect to terminate the Agreement, or they may reach a written agreement as to steps to take to
satisfy Buyer's objections. After the Contingency Removal Date, Buyer understands it shall have no right to object
to the condition of title, unless Seller has failed to take actions as agreed upon, in which case Buyer may terminate
the Agreement. If either party elects to terminate this Agreement pursuant hereto, Agent shall return all deposits
to Buyer, and neither party shall have any further obligations to or rights against the other except the Seller's rights
to indemnification under Article V and its rights to documents under 114.2, 4.3.1, and in any attachments hereto, if
applicable.
If no written notice of disapproval or approval subject to certain exceptions (Buyer's Objections)
is delivered by Buyer to Seller within the aforesaid period, such items may appear as exceptions in the owner's
policy of title insurance.
Seller shall notify Buyer within ten (10) business days after receipt of written notice of Buyer's
Objections whether Seller agrees to cure such Buyer's Objections. If Seller notified Buyer in writing within the
time specified herein that Seller agrees to cure Buyer's Objections, Seller shall correct such objections on or before
the Closing Date to the reasonable satisfaction of Buyer. If Seller does not notify Buyer within such time of
Seller's agreement to cure Buyer's Objections, Seller is deemed to have elected not to cure such Objections. Buyer
may then (1) waive its Objections without any abatement in the Purchase Price, or (2) terminate the Agreement by
giving Seller written notice thereof (with a copy to the Agent), in which case any deposits with the accrued interest,
shall be returned to the Buyer within two (2) business days and the parties shall be released from all further
obligations hereunder except those which expressly survive a termination of this Agreement.
3.6. Title Insurance Policy. Agent shall, following recording of the Deed, provide Buyer with an
ALTA Owner's Policy of Title Insurance in the full amount of the Purchase Price, issued by the Title Company
showing title to the Property vested in the Buyer, subject only to the exceptions set forth in ¶3.3 of this Agreement
and the printed exceptions and stipulations in said policy. Buyer agrees to pay the premium charged therefor, as
well as the charges for such endorsements and binders as Buyer may specify.
ARTICLE IV
CONDITION OF REAL PROPERTY
4.1 Investigation by Buyer.
4.1.1 Buyer's Feasibility Study. Beginning on the Effective Date and ending at 5:00 p.m.
PST on the Contingency Removal Date ("Contingency Period"), the Seller will grant permission to Buyer and its
agents to enter upon the Property, subject to notice to and approval by Seller, to conduct a feasibility study to
investigate every aspect of the condition and status of the Property, including, without limitation, consistency with
zoning and use limitations, construction of the improvements, the existence and availability of utility connections,
soil and groundwater conditions, the presence of underground storage tanks and hazardous wastes or substances,
and compliance or consistency with permits, approvals, and applications of or to governmental agencies in
connection with the Property. After conducting any such feasibility study, Buyer, at its sole expense, shall restore
the Property to the condition that it was in prior to the study, unless Seller expressly permits otherwise.
4.1.2 Buyer's Right to Terminate. Buyer may terminate this Agreement for any reason
whatsoever by written notice received by Seller prior to 5:00 p.m. PST on the Contingency Removal Date (at which
time Agent will return the Initial Deposit to Buyer), and neither party shall have any further obligations to or rights
against the other except Seller's rights to indemnification under Article V and its rights to documents under ¶¶4.2,
4.3.1, and in any attachments hereto, if applicable.
4.1.3 Failure to Terminate. If Buyer fails to terminate this Agreement pursuantto14.1.2,
then (a) Buyer shall pay to Seller the additional deposit as required by ¶2.2.1, (b) the Initial and Total Deposit shall
be non-refundable, except as provided in ¶13.5, 4.5 and (c) Buyer shall be deemed to represent to Seller that (i)
Buyer has concluded whatever feasibility studies it desires in accordance with 14.1.1 or otherwise; and (ii) Buyer is
satisfied with the condition of title except as otherwise provided for in 13.5.
4.2 Studies and Reports. All non-public reports, studies, and analyses, including environmental
audits, ("Reports") obtained or prepared by Buyer relating to the Property shall be conspicuously labeled as a draft,
and copies shall promptly be delivered to Seller. Prior to Closing, Buyer shall not disclose any Report to any party
except pursuant to judicial mandate or the written consent of Seller, except that Buyer may furnish a copy of the
Reports, subject to this nondisclosure agreement, to Buyer's potential mortgagors or investors, or to any consultants
who prepare or review a Report. If the sale under this Agreement does not close for any reason, Seller may
reimburse Buyer for the costs associated with obtaining or preparing the Reports. If Seller chooses to reimburse
Buyer for the Reports, then Buyer shall promptly deliver all copies of the Reports to Seller, which shall become the
exclusive property of Seller. If Seller does not choose to reimburse Buyer for the Reports, then the Reports shall
remain the exclusive property of Buyer to use in whatever manner it so chooses.
4.3 Seller's Representations and Warranties.
4.3.1 Representations and Information provided to Bum Seller represents and warrants to
Buyer the following:
(a) Seller has good, marketable and indefeasible fee simple title to the Property,
free and clear of all liens, exceptions or reservations, except those specifically approved by Buyer pursuant to this
Agreement.
(b) To the best of Seller's actual knowledge, there are no adverse or other parties in
possession of the Property, or of any part thereof, except Seller. To the best of Seller's actual knowledge, no party
has been granted any license, lease or other right relating to the use or possession of the Property or any part
thereof.
(c) To the best of Seller's actual knowledge, no facts, or conditions exist which
would result in the termination of the current access from the Property to any currently existing highways and
roads adjoining or situated on the Property, or to any existing sewer or other utility facilities servicing, adjoining or
situated on the Property.
(d) To the best of Seller's actual knowledge, there is no pending litigation or
governmental action which would adversely effect the value of the Property to the Buyer or the right of the Buyer
to acquire the Property.
(e) From and after the date of this Agreement, Seller shall keep the Property free
and clear of all easements, liens or encumbrances not disclosed in the PTR. Seller shall keep current all existing
loans affecting the Property.
M Seller has disclosed to Buyer the site use history prepared for the Property, and
has no actual knowledge that the information contained in such site use history is incomplete or incorrect in any
material respect. Seller has disclosed to Buyer (or will disclose to Buyer prior to the Closing) the existence of such
underground tanks located on the Property of which Seller has actual knowledge.
Seller's Representative(s) is/are William I Loewenthal and David W. Eales ("Representatives").
Seller's responsibilities under this Agreement extend only to information or documents that Seller's
Representative(s), without investigation or inquiry of any kind, are personally aware of or have in their direct
possession, and not information or documents Seller may have in its possession generally. Seller has not given any
person or entity an option, right of first refusal, or other right to purchase the Property. To Seller's knowledge,
there is no material litigation concerning the Property. Excepting appraisals, internal memoranda, valuation
documents and similar documents, Seller shall promptly make available to Buyer for inspection and copying copies
of all surveys, title insurance policies, plans, specifications, and licenses related to the construction, occupancy, or
use of the Property, and copies of all contracts relating to operation of the Property, such as service and/or
maintenance contracts and management agreements ("Contracts"). After the Contingency Removal Date, Seller
shall not, without Buyer's prior written consent, extend or modify any Contract or enter into any new Contracts
unless cancelable on not more than thirty (30) days' notice. All information and documents provided by Seller that
are not subject to the Freedom of Information Act ("FOIA") or California Public Records Act ("PRA"), which are
without warranty of any kind whatsoever, are subject to the nondisclosure requirements of ¶4.2, and all copies shall
promptly be returned to Seller if the transaction under this Agreement fails to close for any reason.
4.3.2 No Warranties. Any representation, warranty, agreement, or promise made by any
person acting on behalf of Seller which is not contained in this Agreement shall not be binding on Seller. Buyer
agrees that Seller is not responsible for the acts and/or omissions of predecessors in title or management of the
Property before Seller's acquisition of the Property. Notwithstanding Seller's duty to disclose any facts within
Seller's knowledge that might materially affect the value or desirability of the Property, Buyer understands that the
sale provided for herein is made without any warranty by Seller, express or implied, as to the Property's
development potential or zoning, the quality of the labor and/or materials included in any of the improvements, the
nature, size, or quality of the Property or fitness for any particular purpose, the accuracy of any provided plats or
plans, the Property's compliance with applicable laws, regulations, or codes, or the presence or suspected presence
of underground storage tanks, piping, or hazardous wastes or substances on or about the Property or groundwater,
including asbestos -containing material or lead -based paint, except for those warranties and representations
expressly set forth in this Agreement.
4.4 AS -IS WHERE -IS Purchase. Buyer acknowledges that Buyer has the right to inspect the
Property and any improvements thereon during the Contingency Period, and that Buyer agrees to purchase the
Property after the Contingency Removal Date in its AS -IS, WHERE -IS condition WITH ALL FAULTS, whether
or not specifically raised herein or by attachment, without recourse, liability, or indemnification of any type from
Seller. For the purposes of this Agreement, "AS -IS, WHERE -IS condition WITH ALL FAULTS" pertains only to
the aboveground condition of the Property and is not intended to apply to the subsurface soil and groundwater
conditions of the Property. Furthermore, this provision is not intended to relieve the Seller from any liability that
might arise under any federal or state legislation pertaining to environmental contamination and clean up, that is
known or unknown. In no event shall the Purchase Price be reduced or the sale rescinded if the Property fails to
correspond to the standard expected, or if Buyer's costs associated with its study and/or use of the Property exceed
projections.
4.5 Damage or Destruction. In the event that destruction or damage exceeding normal wear and tear
occurs to the Property prior to Closing, Seller may, at its sole option and at no cost to Buyer, elect to restore the
Property to its condition prior to said damage or destruction, or to such lesser condition as may be acceptable to
Buyer. If Seller does not so restore the Property, Buyer may elect to terminate this Agreement, in which case the
Agent shall return to Buyer the Initial Deposit or Total Deposit, as well as any documents or items deposited into
escrow by Buyer, and neither party shall have any rights against or obligations to the other party except Seller's
rights to indemnification under Article V and its rights to documents under ¶¶4.2, 4.3.1, and in any attachments
hereto. If Seller restores the Property, or if Buyer elects not to terminate despite Seller's non -restoration, the
Agreement shall continue in full force and effect, with no change in Purchase Price, except that Closing shall be
extended to allow for any restoration by Seller upon mutual written agreement of the parties. If the Seller elects
not to restore the Property and Buyer elects to proceed with purchasing the Property, Buyer shall be entitled to, and
Seller shall assign to Buyer, all insurance proceeds covering such damage or destruction and, in addition, Seller
shall pay Buyer the amount of any deductible (which can be paid by Seller by means of a credit against the
Purchase Price).
ARTICLE V
INDEMNIFICATION
5.1 Buyer's Indemnity. Buyer shall indemnify Seller from and against any claims, liens, costs
(including attorneys' fees or allocated costs of in-house counsel), liabilities, damages, losses, or causes of action of
whatever kind or nature (collectively "Claims") arising out of or in any way connected, directly or indirectly, with
Buyer's, its employees', agents', or contractors' use, study, improvement, sale or lease of the Property or entry
thereon. Buyer agrees to comply with all laws, regulations, and orders of government agencies pertaining to the
presence or suspected presence of hazardous wastes or substances on or about the Property or groundwater.
5.2 Buver's Waiver of Claims. Buyer agrees that Seller shall not be liable to Buyer or its successors
or assigns on account of any errors, omissions, or construction defects ("Errors") for work performed by contractors
and consultants in connection with the Property. Seller hereby assigns to Buyer, effective upon Closing, any and
all claims, under contract, tort, or otherwise, it may have for any such Errors, and Buyer agrees to look solely and
directly to Seller's contractors or consultants for any relief for such Errors.
5.3 Seller's Indemnity. The Seller hereby agrees to save harmless and indemnify the Buyer from all
claims, loss, damage, actions, causes of action, expense, and/or liability resulting from the sale of said property by
the Seller whenever such claim, loss, damage, actions, cause of action, expense and/or liability arises from the
negligent or wrongful act or omission by a postal employee while acting within the scope of his or her employment,
under circumstances where the Seller, if a private person, would be liable in accordance with the law of the place
where the negligent or wrongful act or omission occurred. Notwithstanding the above, the Seller shall be under no
obligation to save harmless and indemnify the Buyer where any negligent or wrongful act or omission by the
Buyer, its employees or agents, in any way causes or contributes to the claim, loss, damage, actions, causes of
action, expense and/or liability.
ARTICLE VI
CLOSING
6.1 Brokers. Seller has used the services of a real estate broker with respect to the transactions
contemplated by this Agreement. Broker shall be paid a fee, pursuant to separate agreement, to be paid by Seller at
the Closing Date. Each party hereto will indemnify and save harmless the other from any other claim or claims
made by any brokers or finders for any commissions or compensation alleged to be due by reason of the
indemnifying party involving such brokers or finders.
6.2 Closinu. As of the Closing Date in Article I, Buyer shall secure its own insurance, have all
utilities transferred to its name, and assume all other responsibilities of ownership, including, without limitation,
responsibility for utility payments, taxes and assessments, and for personal injury, property damage, or any loss or
damage of any type which relate to the Property.
6.3 Closing Agent. The parties name Fidelity National Title Company to serve as Escrow Holder or
Closing Agent ("Agent"). Agent's address is 601 S. Figueroa Street, Suite 2130, Los Angeles, California 90017.
On the Closing Date, the Agent shall record the Deed in accordance with local law, and shall provide Seller, by
certified or cashier's check, the balance of the purchase price, less any charges as provided under this Agreement
and perform the duties specified in 13.2 and other sections of this Agreement.
6.4 Conditions Precedent.
(a) The obligation of Buyer under this Agreement is subject to the fiilfillment, or waiver by
Buyer, of the following:
(i) Delivery to Agent of the Deed.
(ii) Delivery to Agent, with a concurrent copy to Buyer, of such document that
evidences Seller's authority to transact the sale of the Property.
(iii) Delivery to Agent, of an affidavit that Seller is not a "foreign person" as
described in ¶6.5 of this Agreement.
(iv) Buyer shall not have disapproved the status of title to the Property in
accordance with ¶¶3.4, 3.5 and 3.6 of this Agreement and Title Company shall
be in a position to issue the ALTA Owner's Policy of Title Insurance as
referenced in ¶3.6 of this Agreement.
(v) Buyer shall not have disapproved of the condition of the Property pursuant to
¶4.1 of this Agreement.
(b) The obligation of the Seller under this Agreement is subject to the fulfillment, or wavier
by Seller, of the following:
(i) The performance by Buyer of the obligations of Buyer pursuant to this
Agreement, including delivery into escrow by Buyer of the Purchase Price and
its share of closing costs.
6.5 Non -foreign Person certificates.
(a) Seller's certification. Seller certifies and affirms that Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1954, as amended. Seller will execute at or
prior to the Closing Date such appropriate affidavit or affidavits as may be necessary to evidence the same.
(b) Buyer's certification. Buyer certifies and affirms that Buyer is not a "foreign person"
within the meaning of the federal International Investment Survey Act of 1976, as amended, 22 U.S.C. § 3101, et
M. Buyer will execute at or prior to the Closing Date such appropriate affidavit or affidavits as may be necessary
to evidence the same.
6.6 Seller's Obligations. At the Closing, Seller shall:
(a) Deliver to Buyer a duly executed and acknowledged Grant Deed conveying the Property
to Buyer;
(b) Deliver to Buyer possession of the Property;
(c) Deliver to Buyer evidence of Seller's capacity and authority for closing the transaction;
(d) Deliver documents reasonably requested by the Title Company as administrative
requirements for closing this transaction; and
(e) Deliver to Buyer a policy of title insurance in the amount of the Purchase Price, dated as
of the Closing Date as provided in ¶3.6 of this Agreement.
6.7 Buyer's Obli ag tions. At the Closing, Buyer shall:
(a) Make payment of the balance of the Purchase Price to Seller in accordance with Article
II of this Agreement;
(b) Deliver to Seller evidence of Buyer's capacity and authority for closing the transaction;
(c) Deliver documents reasonably requested by the Title Company as administrative
requirements for closing this transaction; and
(d) Pay the costs for the title insurance in the amount of the Purchase Price, dated as of the
Closing Date as provided in 13.6 of this Agreement.
6.8 Closing Documents. On or before the Closing Date, the parties will deliver the following
documents and payments to the Agent:
(a) Seller shall deliver a Deed conveying the Property in accordance with the Agreement.
(b) Seller shall deliver an executed assignment of the Leases, if any.
(c) Seller shall deliver an executed assignment of all Contracts which Buyer has elected to
assume, if any.
(d) Buyer shall provide the balance of the Purchase Price, and execute all documents
executed by Seller that assign Leases and Contracts to Buyer.
6.9 Further Documents. Seller and Buyer hereby instruct the Agent to use the Agreement as
(Closing or escrow) instructions. Each party shall perform such other actions or deliver such other documents,
including additional Closing instructions, as may be reasonable and necessary to complete the sale under the
Agreement. Any additional (Closing or escrow) instructions given to the Agent must be agreed upon by both
parties. Terms of the Agreement shall prevail over any inconsistent additional instruction, unless Buyer and Seller
waive the inconsistency in writing.
6.10 Proration. Tax adjustment procedure. Agent is authorized and instructed to comply with the
following tax adjustment procedure:
(a) Pay and charge Seller for any unpaid delinquent taxes and/or any penalties and interest
thereon, and for any delinquent or non -delinquent assessments or bonds against the Property which are payable in
respect of periods prior to the Closing Date.
(b) Seller's current taxes shall be pro -rated as of the Closing Date on the basis of a 365-day
year in accordance with Tax Collector's pro ration requirements, together with penalties and interest if said current
taxes are unpaid after December 10 and/or April 10. At the Closing, a check payable to the County Tax Collector
for Seller's pro-rata portion of taxes shall be issued for delivery to the County Tax Collector. Buyer shall be
responsible for all taxes and assessments for periods from and after the Closing Date.
10
All items of income and expense, including taxes and assessments, if any, shall be prorated as of the
Closing Date. Expense items that may not be able to be determined as of the Closing Date, including, but not
limited to, assessments and water and sewer charges, shall be prorated based on the prior months or year's amount
or on other available information. The parties shall make adjustments after Closing when the actual expenses
become known.
6.11 Costs. Except to the extent specifically allocated in this Agreement, each party shall pay its share
of the costs associated with the Closing which are normally assessed against the Buyer and Seller in a transaction
of this character in the County which the Property is located. Buyer and Seller shall share the Agent's fees equally.
Buyer agrees that Seller is not responsible for any other costs related to this transaction, including, without
limitation, title evidence and costs, property surveys, insurance of any kind, taxes, recording fees and stamps, or
environmental assessments, which costs shall not be credited towards the Purchase Price. Each party shall be
responsible for its own legal, accountant, or other professional fees, if any.
6.12 Other Covenants. Covenants for preserving the Property's historic features, or with regard to
wetland or floodplain requirements, if applicable, are described by attachment, and shall be made part of the Deed.
6.13 Possession. Possession of the Property shall be delivered to Buyer at Closing.
ARTICLE VII
GENERAL PROVISIONS
7.1 Amendments. This Agreement may only be amended by a written document that expressly refers
to this Agreement and that is signed by both parties.
7.2 Entire Agreement. This Agreement: (i) integrates all terms and conditions mentioned herein, (ii)
supersedes all oral negotiations and prior writings with respect to the subject matter hereof, and (iii) is intended by
the parties to be the complete and exclusive statement of the terms agreed to by the parties.
7.3 Authority to Execute. Buyer and Seller represent, and each shall attach to this Agreement
documentary evidence thereto, that the person executing this Agreement on their behalf is fully authorized to do so
and to bind the respective party to the terms herein. As part of the attachment, Buyer shall indicate how it
operates; e.g. as an individual, partnership, or corporation.
7.4 Notices. Any notices required by this Agreement shall be effective if made in writing and either
delivered directly by messenger; sent by certified or registered mail, return receipt requested; or sent by USPS
Express Mail; or by facsimile transmitted during normal business hours to the following:
Buyer: City of Vernon
Attention: Bruce V. Malkenhorst, City Administrator
Address: 4305 Santa Fe Avenue, Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
Seller: United States Postal Service
Attention: William J. Loewenthal
Address: 4301 Wilson Blvd., #300, Arlington, VA 22203-1861
Telephone: (703) 526-2855
Facsimile: (703) 526-2701
Agent: Fidelity National Title Company
Attention: Tina DeBow
Address: 601 S. Figueroa Street, Suite 2130, Los Angeles, CA 90017
Telephone: (213) 689-9301
Facsimile: (213) 689-9330
11
All notices shall be deemed received on the date of the return receipt or acknowledgment of delivery. The Buyer's
normal business hours are Monday through Thursday from 7:00 a.m. to 5:30 p.m.
7.5 Assignment. Any assignment by Buyer prior to Closing without the prior written consent of
Seller, which Seller may grant or withhold in its sole and absolute discretion, shall be null and void. At Seller's
election, any such purported assignment shall constitute a default by Buyer, for which Seller may terminate this
Agreement, and, notwithstanding ¶¶3.5 and 4.5, retain the Initial Deposit or Total Deposit, as the case may be, as
liquidated damages in accordance with ¶7.10.
7.6 Survival of Agreement. Only the terms, conditions, indemnifications, representations, and
warranties contained in this Agreement which are specified in this paragraph shall survive the Closing, and shall
be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties. These
surviving provisions are: 3.3, 3.6, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 6.10, 6.11, 6.12 and Article VII.
7.7 No Recordation. No document relating to the subject matter hereof, other than the Deed, shall be
recorded without the prior written approval by Seller.
7.8 Governing Law. This Agreement shall be governed and interpreted in accordance with federal
law. Venue for any action or proceeding relating to or arising out of this Agreement shall be filed in the United
States District Court for the Central District Court of California.
7.9 Construction. Seller and Buyer acknowledge that each party has reviewed this Agreement and
that the normal rule of construction that provides for ambiguities to be resolved against the drafting party shall not
apply to the interpretation of this Agreement. It shall be construed neither for nor against Seller or Buyer, but shall
be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties.
7.10 Damages. In the event the sale of the Property does not close as provided herein because of a
default of Buyer, including the Buyer delaying Closing for any reason unless the delay is agreed to in writing in
advance by the Postal Service, Seller may terminate all rights of Buyer to purchase the Property, and Agent shall
forward the Total Deposit to Seller, and Seller shall receive and retain the Total Deposit as liquidated and agreed
upon damages as Seller's sole remedy for such default. Buyer and Seller understand the impracticality and
difficulty of fixing Seller's actual damages in the event of such default, and that the parties therefore agree that the
Total Deposit represents a reasonable estimate of the actual damages which Seller would incur. In the event of a
default by Seller, the Total Deposit shall be returned to Buyer. Buyer shall also be entitled to recovery of money
damages it can demonstrate Buyer has suffered as a result of such default by Seller. Under no circumstances shall
Buyer be entitled to special or consequential damages, including, but not limited to, anticipated profits. This
provision does not limit any obligations or indemnities of the parties contained elsewhere in this Agreement.
7.11 Disputes and Attorneys' Fees. Seller and Buyer agree to mediate all disputed issues, and to make
a good faith effort to resolve same, prior to filing a legal or administrative action. The parties shall mutually agree
on the mediator, and shall share equally all costs of the mediation. Any resolution of their disputes resulting from
the mediation shall be memorialized in a writing and signed by the parties, their attorneys, and the mediator. Such
a written resolution of the dispute shall be final and binding on the parties. In the event the dispute cannot be
resolved by mediation and litigation ensues, the prevailing party in such litigation shall be entitled to recover its
reasonable attorneys' fees, as determined by the court, incurred in the prosecution or defense of that litigation.
7.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
considered an original and all of which taken together shall constitute one and the same instrument.
7.13 Waiver. No waiver by any part at any time of any breach of any provision of this Agreement
shall be deemed a waiver or a breach of any other provision herein or a consent to any subsequent breach of the
same or another provision. If any actions by any party shall require the consent or approval of another party, such
consent or approval of such action on any one occasion shall not be deemed consent to or approval of such action
on any subsequent occasion or a consent to or approval of any other action.
12
7.14 No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of Buyer
and Seller. No other parties are intended to be direct or incidental beneficiaries of this Agreement and no third
party shall have any rights, under or to this Agreement.
7.15 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement.
BUYER:
Date:
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
EDUARDO OLIVO, City Attorney
SELLER: United States Postal Service
Date:
By:
David W. Eales, Contracting Officer
By:
CITY OF VERNON
LEONIS C. MALBURG, Mayor
13
EXHIBIT
FM
a I r • e
' I I s .I � .� 1 • ' t
EXHIBIT "A"
LOT 92 IN THE RANCHO LAGUNA, AS SHOWN ON MAP FILED AS
EXHIBIT "A" IN CASE NO. B-25296 OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA, LOS ANGELES COUNTY, STATE OF
CALIFORNIA.
EXCEPT THE NORTHEASTERLY 200.00 FEET.
ALSO EXCEPT THAT PORTION THEREOF LYING NORTHWESTERLY OF THE
SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, PER DEED RECORDED
IN BOOK 864 PAGE 317, OFFICIAL RECORDS, IN THE OFFICE OF
THE LOS ANGELES RECORDER.
ALSO EXCEPT THAT PORTION OF SAID LOT 92, LYING
SOUTHWESTERLY OF THE NORTHEASTERLY LINE OF BANDINI
BOULEVARD, DESCRIBED AS PARCEL 9-4 IN THE DEED RECORDED
OCTOBER 30, 1974 AS INSTRUMENT NO. 2807, IN THE OFFICE OF
THE COUNTY RECORDER.
ALSO EXCEPT THAT PORTION THEREOF LYING SOUTHEASTERLY OF THE
FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF BANDINI
AVENUE, 100 FEET IN WIDTH, DISTANT THEREON NORTH 690 12'
10" WEST 159.85 FEET FROM THE EASTERLY LINE OF SAID LOT 92;
THENCE LEAVING SAID NORTHEASTERLY LINE NORTH 240 12' 10"
WEST 94.80 FEET; THENCE NORTH 220 11' 31" EAST 649.27 FEET
TO THE SOUTHWESTERLY LINE OF SAID NORTHEASTERLY 200.00
FEET.
EXHIBIT "A"
SUPPORTING
DOCUMENTS
AGREEMENT OF PURCHASE AND SALE
(Long form for transactions ovcr $3,000,000)
"SELLER"
UNITED STATES POSTAL SERVICE
"BUYER"
CITY OF VERNON
"PROPERTY"
A portion of Lot 92, APN 6332-002-908, located at the northeasterly corner of
Bandini Avenue and Atlantic Boulevard in the City of Vernon, County of Los
Angeles, State of California
Rev. 5/24/01
TABLE OF CONTENTS
ARTICLE I
AGREEMENT TO SELL AND PURCHASE
ARTICLE Il
PURCHASE PRICE
2.1
Purchase Price
2.2
Terms of Payment
ARTICLE III
ESCROW AND TITLE
3.1
Escrow
3.2
Agent's Duties
3.3
Condition of Title
3.4
Title Report
3.5
Objections to Title
3.6
Title Insurance Policy
ARTICLE IV
CONDITION OF REAL PROPERTY
4.1
Investigation by Buyer
4.2
Studies and Reports
4.3
Seller's Representations and Warranties
4.4
AS -IS WHERE -IS Purchase
4.5
Damage or Destruction
ARTICLE V
INDEMNIFICATION
5.1
Buyer's Indemnity
5.2
Buyer's Waiver of Claims
5.3
Seller's Indemnity
ARTICLE VI
CLOSING
6.1
Brokers
6.2
Closing
6.3
Closing Agent .
6.4
Conditions Precedent
6.5
Non foreign Person Certificates
6.6
Seller's Obligation
6.7
Buyer's Obligations
6.8
Closing Documents
6.9
Further Documents
6.10
Proration
6.11
Costs
6.12
Other Covenants
6.13
Possession
ARTICLE VII
GENERAL PROVISIONS
7.1
Amendments
7.2
Entire Agreement
7.3
Authority to Execute
7.4
Notices
7.5
Assignment
7.6
Survival of Agreement
7.7
No Recordation
7.8
Governing Law
7.9
Construction
7.10
Damages
7.11
Disputes and Attorneys' Fees
2
7.12 Counterparts
7.13 Waiver
7.14 No Third Party Beneficiary Rights
7.15 Time of Essence
3
2UNITED S TA TES
POSTAL SERVICE.
AGREEMENT OF PURCHASE AND SALE
(bong form for transactions over $3,000,000)
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is entered into by the United States
Postal Service ("Seller") and the City of Vernon, a municipal corporation ("Buyer").
ARTICLE I
AGREEMENT TO SELL AND PURCHASE
Seller is the owner of certain real property located at the northeasterly corner of Bandini Avenue and Atlantic
Boulevard, City of Vernon, California ("Property"), as more particularly described in Exhibit A attached hereto
and made a part hereof. Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from
Seller, on the terms and conditions contained in this Agreement. This Agreement becomes effective on the date
executed by Seller ("Effective Date"). Buyer has the right to terminate this Agreement prior to November 14, 2002
(the "Contingency Removal Date") in accordance with 14.1.2 and have the Initial Deposit, as defined in 12.2.1,
returned to Buyer. The purchase and sale transaction contemplated by this Agreement shall close (the "Closing")
on or before December 5, 2002, (the "Closing Date") unless extended by the mutual written agreement of the
parties. If the Closing extends beyond the Closing Date, this Agreement shall terminate and any deposits(s) paid
on account, pursuant to 12.2.1, returned to the Buyer.
ARTICLE H
PURCHASE PRICE
2.1 Amount of Purchase Price. The total purchase price ("Purchase Price") for the Property shall be
Six Million Three Hundred Ninety -One Thousand Dollars ($6,391,000.00), payable by Buyer to Seller as follows:
All Cash to Seller.
2.2 Terms of Payment. Buyer shall pay Seller the Purchase Price as follows:
2.2.1 Deposit. Upon Buyer's execution and delivery of this Agreement, Buyer shall pay
Seller the sum of $31,955.00 or 0.005% of the Purchase Price ("Initial Deposit"). Payment shall be made by
cashier's or certified check made payable to the Seller and deposited with the Agent defined in 16.3. If Buyer has
not terminated this Agreement pursuant to 14.1.2, Buyer shall pay to Seller on or before the Contingency Removal
Date an additional deposit of $95,865.00 or 0.015% of the Purchase Price. This additional amount shall be
deposited with the Agent. The Initial Deposit shall thus have been increased to $127,820.00 or 0.02% of the
Purchase Price (the "Total Deposit"). Agent will hold all deposits in escrow by promptly placing deposits in an
interest -bearing bank account; Agent will provide the parties with all specific information concerning this account,
including bank name, account number, et cetera Agent will return all deposits, with the interest that has accrued,
to Buyer if either party elects to terminate this Agreement pursuant to 13.5, or if Buyer elects to terminate the
Agreement pursuant to 114.1.2 or 4.5. Agent will forward the Initial Deposit or Total Deposit, without the accrued
interest, to Seller upon any default by Buyer pursuant to JN7.5 and 7.10. The interest accrued thereon will be
returned to Buyer.
2.2.2 Balance of Purchase Price. Buyer shall deposit the unpaid balance of the Purchase
Price payable to Seller, with the Agent, on or before the Closing Date in accordance with Article VI.
ARTICLE III
ESCROW AND TITLE
3.1 Escrow. Seller agrees to open an escrow in accordance with this Agreement at Fidelity National
Title Company located at 601 S. Figueroa Street, Suite 2130, Los Angeles, California 90017, Attention: Tina
DeBow, Phone (213) 689-9301, Fax (213) 689-9330 ("Agent"). This Agreement constitutes the joint escrow
instructions of Buyer and Seller, and Agency to whom these instructions are delivered is hereby empowered to act
under this Agreement.
3.2 Agent's Duties. Agent is authorized to:
(a) Pay and charge the Seller:
(i) for any delinquent taxes;
(ii) for any penalties and interest thereon;
(1u) for any delinquent or non -delinquent assessments for bonds against the
Property for periods prior to the Closing Date and for any amount necessary to
place title in the condition necessary to satisfy 113.4, 3.5 and 3.6 of this
Agreement,
(iv) for 50% of escrow fees, as well as charges and costs as set forth in this
Agreement; and
(v) brokerage fee to CB Richard Ellis pursuant to a separate agreement.
(b) Pay and charge the Buyer for any transfer taxes, recording fees and 50016 of escrow fees,
as well as charges and costs as set forth in this Agreement.
(c) Disburse funds and deliver the deed when conditions of this escrow have been filled
by the Buyer and Seller.
3.3 Condition of Title. At Closing, Seller shall convey the Property to Buyer by Grant Deed
("Deed"), subject only to the following:
(a) Any and all restrictions, covenants, easements, encumbrances, liens of any kind, leases,
and interests of others, including rights -of -way for roads, pipelines, railroads, and public utilities, whether or not
matters of public record,
(b) Applicable zoning and use regulations of any locality, county or state; and
(c) Any other exception that may appear on title information Buyer obtains to which Buyer
does not object under 13.5.
3.4 Title Report. Within ten (10) business days after the date escrow is opened, Seller shall obtain or
be furnished by Agency, at Buyer's sole cost and expense, a preliminary title report ("PTR") issued by Fidelity
National Title Company of Newport Beach, California (the "Title Company).
3.5 Objections to Title. Buyer shall notify Seiler promptly of any exception regarding Seller's title,
whether reflected on a survey or title report obtained by Buyer or otherwise. Until the Contingency Removal Date,
Buyer or Seller may elect to terminate the Agreement, or they may reach a written agreement as to steps to take to
satisfy Buyer's objections. After the Contingency Removal Date, Buyer understands it shall have no right to object
to the condition of title, unless Seller has failed to take actions as agreed upon, in which case Buyer may terminate
the Agreement. If either party elects to terminate this Agreement pursuant hereto, Agent shall return all deposits
to Buyer, and neither party shall have any further obligations to or rights against the other except the Seller's rights
to indemnification under Article v and its rights to documents under IM4.2, 4.3.1, and in any attachments hereto, if
applicable.
If no written notice of disapproval or approval subject to certain exceptions (Buyer's Objections)
is delivered by Buyer to Seller within the aforesaid period, such items may appear as exceptions in the owner's
policy of title insurance.
Seller shall notify Buyer within ten (10) business days after receipt of written notice of Buyer's
Objections whether Seller agrees to cure such Buyer's Objections. If Seller notified Buyer in writing within the
time specified herein that Seller agrees to cure Buyer's Objections, Seller shall correct such objections on or before
the Closing Date to the reasonable satisfaction of Buyer. If Seller does not notify Buyer within such time of
Seller's agreement to cure Buyer's Objections, Seller is deemed to have elected not to cure such Objections. Buyer
may then (1) waive its Objections without any abatement in the Purchase Price, or (2) terminate the Agreement by
giving Seller written notice thereof (with a copy to the Agent), in which case any deposits with the accrued interest,
shall be returned to the Buyer within two (2) business days and the parties shall be released from all further
obligations hereunder except those which expressly survive a termination of this Agreement.
3.6. Title insurance Poliov. Agent shall, following recording of the Deed, provide Buyer with an
ALTA Owner's Policy of Title Insurance in the full amount of the Purchase Price, issued by the Title Company
showing title to the Property vested in the Buyer, subject only to the exceptions set forth in 13.3 of this Agreement
and the printed exceptions and stipulations in said policy. Buyer agrees to pay the premium charged therefor, as
well as the charges for such endorsements and binders as Buyer may specify.
ARTICLE IV
CONDITION OF REAL PROPERTY
4.1 Investigation by Buyer.
4.1. l Buyer's Feasibility Study. Beginning on the Effective Date and ending at 5:00 p.m.
PST on the Contingency Removal Date ("Contingency Period"), the Seller will grant permission to Buyer and its
agents to enter upon the Property, subject to notice to and approval by Seller, to conduct a feasibility study to
investigate every aspect of the condition and status of the Property, including, without limitation, consistency with
zoning and use limitations, construction of the improvements, the existence and availability of utility connections,
soil and groundwater conditions, the presence of underground storage tanks and hazardous wastes or substances,
and compliance or consistency with permits, approvals, and applications of or to governmental agencies in
connection with the Property. After conducting any such feasibility study, Buyer, at its sole expense, shall restore
the Property to the condition that it was in prior to the study, unless Seller expressly permits otherwise.
4.1.2 Buyer's Right to Terminate. Buyer may terminate this Agreement for any reason
whatsoever by written notice received by Seller prior to 5:00 p.m. PST on the Contingency Removal Date (at which
time Agent will return the Initial Deposit to Buyer), and neither party shall have any further obligations to or rights
against the other except Seller's rights to indemnification under Article V and its rights to documents under ¶¶4.2,
4.3.1, and in any attachments hereto, if applicable.
4.1.3 Failure to Terminate. If Buyer fails to terminate this Agreement pursuant to 14.1.2,
then (a) Buyer shall pay to Seller the additional deposit as required by 12.2.1, (b) the Initial and Total Deposit shall
be non-refundable, except as provided in 113.5, 4.5 and (c) Buyer shall be deemed to represent to Seller that (i)
Buyer has concluded whatever feasibility studies it desires in accordance with 14.1.1 or otherwise; and (ii) Buyer is
satisfied with the condition of title except as otherwise provided for in 13.5.
4.2 Studies and Reports. All non-public reports, studies, and analyses, including environmental
audits, ("Reports") obtained or prepared by Buyer relating to the Property shall be conspicuously labeled as a draft,.
and copies shall promptly be delivered to Seller. Prior to Closing, Buyer shall not disclose any Report to any party
except pursuant to judicial mandate or the written consent of Seller, except that Buyer may furnish a copy of the
Reports, subject to this nondisclosure agreement, to Buyer's potential mortgagors or investors, or to. any consultants
who prepare or review a Report. If the sale under this Agreement does not close for any reason, Seller may
reimburse Buyer for the costs associated with obtaining or preparing the Reports. If Seller chooses to reimburse
Buyer for the Reports, then Buyer shall promptly deliver all copies of the Reports to Seller, which shall become the
exclusive property of Seller. If Seller does not choose to reimburse Buyer for the Reports, then the Reports shall
remain the exclusive property of Buyer to use in whatever manner it so chooses.
4.3 Seller's Representations and Warranties.
4.3.1 Representations and Information provided to Buyer. Seller represents and warrants to
Buyer the following:
(a) Seller has good, marketable and indefeasible fee simple title to the Property,
free and clear of all liens, exceptions or reservations, except those specifically approved by Buyer pursuant to this
Agreement.
(b) To the best of Seller's actual knowledge, there are no adverse or other parties in
possession of the Property, or of any part thereof, except Seller. To the best of Seller's actual knowledge, no party
has been granted any license, lease or other right relating to the use or possession of the Property or any part
thereof.
(c) To the best of Seller's actual knowledge, no facts, or conditions exist which
would result in the termination of the current access from the Property to any currently existing highways and
roads adjoining or situated on the Property, or to any existing sewer or other utility facilities servicing, adjoining or
situated on the Property.
(d) To the best of Seller's actual knowledge, there is no pending litigation or
governmental action which would adversely effect the value of the Property to the Buyer or the right of the Buyer
to acquire the Property.
(e) From and after the date of this Agreement, Seller shall keep the Property free
and clear of all easements, liens or encumbrances not disclosed in the PTR Seller shall keep current all existing
loans affecting the Property.
(f) Seller has disclosed to Buyer the site use history prepared for the Property, and
has no actual knowledge that the information contained in such site use history is incomplete or incorrect in any
material respect. Seller has disclosed to Buyer (or will disclose to Buyer prior to the Closing) the existence of such
underground tanks located on the Property of which Seller has actual knowledge.
Seller's Representative(s) istare William J. Loewenthal and David W. Eales ("Representatives").
Seller's responsibilities under this Agreement extend only to information or documents that Seller's
Representative(s), without investigation or inquiry of any -kind, are personally aware of or have in their direct
possession, and not information or documents Seller may have in its possession generally. Seller has not given any
person or entity an option, right of first refusal, or other right to purchase the Property. To Seller's knowledge,
there is no material litigation concerning the Property. Excepting appraisals, internal memoranda, valuation
documents and similar documents, Seller shall promptly make available to Buyer for inspection and copying copies
of all surveys, title insurance policies, plans, specifications, and licenses related to the construction, occupancy, or
use of the Property, and copies of all contracts relating to operation of the Property, such as service and/or
maintenance contracts and management agreements ("Contracts"). After the Contingency Removal Date, Seller
shall not, without Buyer's prior written consent, extend or modify any Contract or enter into any new Contracts
unless cancelable on not more than thirty (30) days' notice. All information and documents provided by Seller that
are not subject to the Freedom of Information Act ("FOIA") or California Public Records Act ("PIA'), which are
without warranty of any kind whatsoever, are subject to the nondisclosure requirements of 14.2, and all copies shall
promptly be returned to Seller if the transaction under this Agreement fails to close for any reason.
4.3.2 No Warranties. Any representation, warranty, agreement, or promise made by any
person acting on behalf of Seller which is not contained in this Agreement shall not be binding on Seller. Buyer
agrees that Seller is not responsible for the acts and/or omissions of predecessors in title or management of the
Property before Seller's acquisition of the Property. Notwithstanding Seller's duty to disclose any facts within
Seller's knowledge that might materially affect the value or desirability of the Property, Buyer understands that the
sale provided for herein is made without any warranty by Seller, express or implied, as to the Property's
development potential or zoning, the quality of the labor and/or materials included in any of the improvements, the
nature, size, or quality of the Property or fitness for any particular purpose, the accuracy of any provided plats or
plans, the Property's compliance with applicable laws, regulations, or codes, or the presence or suspected presence
of underground storage tanks, piping, or hazardous wastes or substances on or about the Property or groundwater,
including asbestos -containing material or lead -based paint, except for those warranties and representations
expressly set forth in this Agreement.
4.4 AS -IS WHERE -IS Purchase. Buyer acknowledges that Buyer has the right to inspect the
Property and any improvements thereon during the Contingency period, and that Buyer agrees to purchase the
Property after the Contingency Removal Date in its AS -IS, WHERE -IS condition WITH ALL FAULTS, whether
or not specifically raised herein or by attachment, without recourse, liability, or indemnification of any type from
Seller. For the purposes of this Agreement, ,AS -IS, WHERE -IS condition WITH ALL FAULTS" pertains only to
the aboveground condition of the Property and is not intended to apply to the subsurface soil and groundwater
conditions of the Property. Furthermore, this provision is not intended to relieve the Seller from any liability that
might arise under any federal or state legislation pertaining to environmental contamination and clean up, that is
known or unknown. In no event shall the Purchase Price be reduced or the sale rescinded if the Property fails to
correspond to the standard expected, or if Buyer's costs associated with its study and/or use of the Property exceed
projections.
4.5 Damage or L►estruction in the event that destruction or damage exceeding normal wear and tear
occurs to the Property prior to Closing, Seller may, at its sole option and at no cost to Buyer, elect to restore the
Property to its condition prior to said damage or destruction, or to such lesser condition as may be acceptable to
Buyer. If Seller does not so restore the Property, Buyer may elect to terminate this Agreement, in which case the
Agent shall return to Buyer the Initial Deposit or Total Deposit, as well as any documents or items deposited into
escrow by Buyer, and neither party shall have any rights against or obligations to the other party except Seller's
rights to indemnification under Article V and its rights to documents under IN4.2, 4.3.1, and in any attachments
hereto. H Seller restores the Property, or if Buyer elects not to terminate despite Seller's non -restoration, the
Agreement shall continue in full force and effect, with no change in Purchase Price, except that Closing shall be
extended to allow for any restoration by Seller upon mutual written agreement of the parties. If the Seller elects
not to restore the Property and Buyer elects to proceed with purchasing the Property, Buyer shall be entitled to, and
Seller shall assign to Buyer, all insurance proceeds covering such damage or destruction and, in addition, Seller
shall pay Buyer the amount of any deductible (which can be paid by Seller by means of a credit against the
Purchase Price).
ARTICLE V
INDEMNIFICATION
5.1 Buyer's Indemnity. Buyer shall indemnify Seller from and against any claims, liens, costs
(including attorneys' fees or allocated costs of in-house counsel), liabilities, damages, losses, or causes of action of
whatever kind or nature (collectively "Claims") arising out of or in any way connected, directly or indirectly, with
Buyer's, its employees', agents', or contractors' use, study, improvement, sale or lease of the Property or entry
thereon. Buyer agrees to comply with all laws, regulations, and orders of government agencies pertaining to the
presence or suspected presence of hazardous wastes or substances on or about the Property or groundwater.
5.2 Buyer's Waiver of Claims. Buyer agrees that Seller shall not be liable to Buyer or its successors
or assigns on account of any errors, omissions, or construction defects ("Errors") for work performed by contractors
and consultants in connection with the Property. Seller hereby assigns to Buyer, effective upon Closing, any and
all claims, under contract, tort, or otherwise, it may have for any such Errors, and Buyer agrees to look solely and
directly to Seller's contractors or consultants for any relief for such Errors.
5.3 Seller's Indemnity. The Seller hereby agrees to save harmless and indemnify the Buyer from all
claims, loss, damage, actions, causes of action, expense, and/or liability resulting from the sale of said property by
the Seller whenever such claim, loss, damage, actions, cause of action, expense and/or liability arises from the
negligent or wrongful act or omission by a postal employee while acting within the scope of his or her employment,
under circumstances where the Seller, if a private person, would be liable in accordance with the law of the place
where the negligent or wrongful act or omission occurred. Notwithstanding the above, the Seller shall be under no
obligation to save harmless and indemnify the Buyer where any negligent or wrongful act or omission by the
Buyer, its employees or agents, in any way causes or contributes to the claim, loss, damage, actions, causes of
action, expense and/or liability.
ARTICLE VI
CLOSING
6.1 Brokers. Seller has used the services of a real estate broker with respect to the transactions
contemplated by this Agreement. Broker shall be paid a fee, pursuant to separate agreement, to be paid by Seller at
the Closing Date. Each party hereto will indemnify and save harmless the other from any other claim or claims
made by any brokers or finders for any commissions or compensation alleged to be due by reason of the
indemnifying party involving such brokers or finders.
6.2 Closing. As of the Closing Date in Article I, Buyer shall secure its own insurance, have all
utilities transferred to its name, and assume all other responsibilities of ownership, including, without limitation,
responsibility for utility payments, taxes and assessments, and for personal injury, property damage, or any loss or
damage of any type which relate to the Property.
6.3 Closing Agent. The parties name Fidelity National Title Company to serve as Escrow Holder or
Closing Agent ("Agent"). Agent's address is 601 S. Figueroa Street, Suite 2130, Los Angeles, California 90017.
On the Closing Date, the Agent shall record the Deed in accordance with local law, and shall provide Seller, by
certified or cashier's check, the balance of the purchase price, less any charges as provided under this Agreement
and perform the duties specified in 13.2 and other sections of this Agreement.
6.4 Conditions Precedent.
(a) . The obligation of Buyer under this Agreement is subject to the fulfillment, or waiver by
Buyer, of the following:
(i) Delivery to Agent of the Deed.
(ii) Delivery to Agent, with a concurrent copy to Buyer, of such document that
evidences Seller's authority to transact the sale of the Properly.
(iii) Delivery to Agent, of an affidavit that Seller is not a "foreign person" as
described in 16.5 of this Agreement.
(iv) Buyer shall not have disapproved the status of title to the Property in
accordance with IM3.4, 3.5 and 3.6 of this Agreement and Title Company shall
be in a position to issue the ALTA Owner's Policy of Title Insurance as
referenced in 13.6 of this Agreement.
(v) Buyer shall not have disapproved of the condition of the Property pursuant to
14.1 of this Agreement.
(b) The obligation of the Seller under this Agreement is subject to the fulfillment, or wavier
by Seller, of the following:
(i) The performance by Buyer of the obligations of Buyer pursuant to this
Agreement, including delivery into escrow by Buyer of the Purchase Price and
its share of closing costs.
6.5 Non foreign Person certificates.
(a) Seller's certification. Seller certifies and affirms that Seller is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1954, as amended. Seller will execute at or
prior to the Closing Date such appropriate affidavit or affidavits as may be necessary to evidence the same.
9
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(b) Buyer's certification. Buyer certifies and affirms that Buyer is not a "foreign person"
within the meaning of the federal International Investment Survey Act of 1976, as amended, 22 U.S.C. § 3101, et
M. Buyer will execute at or prior to the Closing Date such appropriate affidavit or affidavits as may be necessary
to evidence the same.
6.6 Seller's Obligations. At the Closing, Seller shall:
(a) Deliver to Buyer a duly executed and acknowledged Grant Deed conveying the Property
to Buyer,
(b) Deliver to Buyer possession of the Property;
(c) Deliver to Buyer evidence of Seller's capacity and authority for closing the transaction;
(d) Deliver documents reasonably requested by the Title Company as administrative
requirements for closing this transaction; and
(e) Deliver to Buyer a policy of title insurance in the amount of the Purchase Price, dated as
of the Closing Date as provided in 13.6 of this Agreement.
6.7 Buyer's Obligations. At the Closing, Buyer shall:
(a) Make payment of the balance of the Purchase Price to Seller in accordance with Article
II of this Agreement;
(b) Deliver to Seller evidence of Buyer's capacity and authority for closing the transaction,
(c) Deliver documents reasonably requested by the Title Company as administrative
requirements for closing this transaction; and
(d) Pay the costs for the titleinsurancein the amount of the Purchase Price, dated as of the
Closing Date as provided in 13.6 of this Agreement.
6.9 Closing Documents. On or before the Closing Date, the parties will deliver the following
documents and payments to the Agent:
(a) Seller shall deliver a Deed conveying the Property in accordance with the Agreement.
(b) Seller shall deliver an executed assignment of the Leases, if any.
(c) Seller shall deliver an executed assignment of all Contracts which Buyer has elected to
assume, if any.
(d) Buyer shall provide the balance of the Purchase Price, and execute all documents
executed by Seller that assign Leases and Contracts to Buyer.
6.9 Further Documents. Seller and Buyer hereby instruct the Agent to use the Agreement as
(Closing or escrow) instructions. Each party shall perform such other actions or deliver such other documents,
including additional Closing instructions, as may be reasonable and necessary to complete the sale under the
Agreement. Any additional (Closing or escrow) instructions given to the Agent must be agreed upon by both
parties. Terms of the Agreement shall prevail over any inconsistent additional instruction, unless Buyer and Seller
waive the inconsistency in writing.
6.10 Proration. Tax adjustment procedure. Agent is authorized and instructed to comply with the
following tax adjustment procedure:
(a) Pay and charge Seller for any unpaid delinquent taxes and/or any penalties and interest
thereon, and for any delinquent or non -delinquent assessments or bonds against the Property which are payable in
respect of periods prior to the Closing Date.
(b) Seller's current taxes shall be pro -rated as of the Closing Date on the basis of a 365-day
year in accordance with Tax Collector's pro ration requirements, together with penalties and interest if said current
taxes are unpaid after December 10 and/or April 10. At the Closing, a check payable to the County Tax Collector
for Seller's pro-rata portion of taxes shall be issued for delivery to the County Tax Collector. Buyer shall be
responsible for all taxes and assessments for periods from and after the Closing Date.
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All items of income and expense, including taxes and assessments, if any, shall be prorated as of the
Closing Date. Expense items that may not be able to be determined as of the Closing Date, including, but not
limited to, assessments and water and sewer charges, shall be prorated based on the prior month's or year's amount
or on other available information. The parties shall make adjustments after Closing when the actual expenses
become known.
6.11 Costs. Except to the extent specifically allocated in this Agreement, each party shall pay its share
of the costs associated with the Closing which are normally assessed against the Buyer and Seller in a transaction
of this character in the County which the Property is located Buyer and Seller shall share the Agent's fees equally.
Buyer agrees that Seller is not responsible for any other costs related to this transaction, including, without
limitation, title evidence and costs, property surveys, insurance of any kind, taxes, recording fees and stamps, or
environmental assessments, which costs shall not be credited towards the Purchase Price. Each party shall be
responsible for its own legal, accountant, or other professional fees, if any.
6.12 Other Covenants. Covenants for preserving the Property's historic features, or with regard to
wetland or tloodpiain requirements, if applicable, are described by attachment, and shall be made part of the Deed.
6.13 Possession. Possession of the Property shall be delivered to Buyer at Closing.
ARTICLE VH
GENERAL PROVISIONS
7.1 Amendments. This Agreement may only be amended by a written document that expressly refers
to this Agreement and that is signed by both parties.
7.2 Entire merit. This Agreement: (i) integrates all terms and conditions mentioned herein, (H)
supersedes all oral negotiations and prior writings with respect to the subject matter hereof, and (m) is intended by
the parties to be the complete and exclusive statement of the terms agreed to by the parties.
7.3 Authority to Execute. Buyer and Seller represent, and each shall attach to this Agreement
documentary evidence thereto, that the person executing this Agreement on their behalf is fully authorized to do so
and to bind the respective party to the terms herein. As part of the attachment, Buyer shall indicate how it
operates; e.g. as an individual, partnership, or corporation.
7.4 Notices. Any notices required by this Agreement shall be effective if made in writing and either
delivered directly by messenger, sent by certified or registered mail, return receipt requested; or sent by USPS
Express Mail; or by facsimile transmitted during normal business hours to the following:
Buyer: City of Vernon
Attention: Bruce V. Malkenhorst, City Administrator
Address: 4305 Santa Fe Avenue, Vernon, CA 90058
Telephone: (323) 583-8811
Facsimile: (323) 826-1438
Seller: United States Postal Service
Attention: William J. Loewenthal
Address: 4301 Wilson Blvd., #300, Arlington, VA 22203-1861
Telephone: (703) 526-2855
Facsimile: (703) 526-2701
Agent: Fidelity National Title Company
Attention: Tina DeBow
Address: 601 S. Figueroa Street, Suite 2130, Los Angeles, CA 90017
Telephone: (213) 689-9301
Facsimile: (213) 689-9330
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All notices shall be deemed received on the date of the return receipt or acknowledgment of delivery. The Buyer's
normal business hours are Monday through Thursday from 7:00 a.m. to 5:30 p.m.
7.5 Assi ent. Any assignment by Buyer prior to Closing without the prior written consent of
Seller, which Seller may grant or withhold in its sole and absolute discretion, shall be null and void. At Seller's
election, any such purported assignment shall constitute a default by Buyer, for which Seller may terminate this
Agreement, and, notwithstanding IM3.5 and 4.5, retain the Initial Deposit or Total Deposit, as the case may be, as
liquidated damages in accordance with 17.10.
7.6 Survival of Agreement. Only the terms, conditions, indemnifications, representations, and
warranties contained in this Agreement which are specified in this paragraph shall survive the Closing, and shall
be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties. These
surviving provisions are: 3.3, 3.6, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 6.10, 6.11, 6.12 and Article VH.
7.7 No Recordation. No document relating to the subject matter hereof, other than the Deed, shall be
recorded without the prior written approval by Seller.
7.8 Governing Law. This Agreement shall be governed and interpreted in accordance with federal
law. Venue for any action or proceeding relating to or arising out of this Agreement shall be filed in the United
States District Court for the Central District Court of California.
7.9 Construction Seller and Buyer acknowledge that each party has reviewed this Agreement and
that the normal rule of construction that provides for ambiguities to be resolved against the drafting party shall not
apply to the interpretation of this Agreement. It shall be construed neither for nor against Seller or Buyer, but shall
be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties.
7.10 Damages. In the event the sale of the Property does not close as provided herein because of a
default of Buyer, including the Buyer delaying Closing for any reason unless the delay is agreed to in writing in
advance by the Postal Service, Seller may termmate all rights of Buyer to purchase the Property, and Agent shall
forward the Total Deposit to Seller, and Seller shall receive and retain the Total Deposit as liquidated and agreed
upon damages as Seller's sole remedy for such default. Buyer and Seller understand the impracticality and
difficulty of fixing Seller's actual damages in the event of such default, and that the parties therefore agree that the
Total Deposit represents a reasonable estimate of the actual damages which Seller would incur. In the event of a
default by Seller, the Total Deposit shall be returned to Buyer. Buyer shall also be entitled to recovery of money
damages it can demonstrate Buyer has suffered as a result of such default by Seller. Under no circumstances shall
Buyer be entitled to special or consequential damages, including, but not limited to, anticipated profits. This
Provision does not limit any obligations or indemnities of the parties contained elsewhere in this Agreement:
7.11 Disputes and Attorneys' Fees. Seller and Buyer agree to mediate all disputed issues, and to make
a good faith effort to resolve same, prior to filing a legal or administrative action. The parties shall mutually agree
on the mediator, and shall share equally all costs of the mediation. Any resolution,of their disputes resulting from
the mediation shall be memorialized in a writing and signed by the parties, their attorneys, and the mediator. Such
a written resolution of the dispute shall be final and binding on the parties. In the event the dispute cannot be
resolved by mediation and litigation ensues, the prevailing party in such litigation shall be entitled to recover its
reasonable attorneys' fees, as determined by the court, incurred in the prosecution or defense of that litigation.
7.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
considered an original and all of which taken together shall constitute one and the same instrument.
7.13 Waiver. No waiver by any part at any time of any breach of any provision of this Agreement
shall be deemed a waiver or a breach of any other provision herein or a consent to any subsequent breach of the
same or another provision. if any actions by any party shall require the consent or approval of another party, such
consent or approval of such action on any one occasion shall not be deemed consent to or approval of such action
on any subsequent occasion or a consent to or approval of any other action.
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7.14 No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of Buyer
and Seller. No other parties are intended to be direct or incidental beneficiaries of this Agreement and no third
party shall have any rights, under or to this Agreement.
7.15 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.
IN WITNESS W14EREOF, the parties hereby execute this Agreement.
BUYER:
Date:
BRUCE V. MALKENHORST, City Clerk
/AlP'ED AS TO FORM' � �
DO OLIVO, City orney
SELLER: United States Postal Service
Date:
By:
David W. Eazi, Contracting cer
CITY OF VERNON
By:
EONIS C. MALBUR Mayor
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EXHIBIT
0
EXHIBIT "A"
LOT 92 IN THE RANCHO LAGUNA, AS SHOWN ON MAP FILED AS
EXHIBIT "A" IN CASE NO. B-25296 OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA, LOS ANGELES COUNTY, STATE OF
CALIFORNIA
EXCEPT THE NORTHEASTERLY 200.00 FEET.
ALSO EXCEPT THAT PORTION THEREOF LYING NORTHWESTERLY OF THE
SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, PER DEED RECORDED
IN BOOK 864 PAGE 317, OFFICIAL RECORDS, IN THE OFFICE OF
THE LOS ANGELES RECORDER.
ALSO EXCEPT THAT PORTION OF SAID LOT 92, LYING
SOUTHWESTERLY OF THE NORTHEASTERLY LINE OF BANDINI
BOULEVARD, DESCRIBED AS PARCEL 9-4 IN THE DEED RECORDED
OCTOBER 30, 1974 AS INSTRUMENT NO. 2807, IN THE OFFICE OF
THE COUNTY RECORDER.
ALSO EXCEPT THAT PORTION THEREOF LYING SOUTHEASTERLY OF THE
FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE NORTHEASTERLY LINE OF BANDINI
AVENUE, 100 FEET IN WIDTH, DISTANT THEREON NORTH 69° 12'
10" WEST 159.85 FEET FROM THE EASTERLY LINE OF SAID LOT 92;
THENCE LEAVING SAID NORTHEASTERLY LINE NORTH 240 12' 10"
WEST 94.80 FEET; THENCE NORTH 220 11' 31" EAST 649.27 FEET
TO THE SOUTHWESTERLY LINE OF SAID NORTHEASTERLY 200.00
FEET.
EXHIBIT "A"