Resolution No. 8524r
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 8524
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT TO PURCHASE AND SELL REAL ESTATE AND
ESCROW INSTRUCTIONS BY AND BETWEEN THE CITY OF
VERNON AND MASTERFOODS USA FOR PROPERTY LOCATED
SOUTHEAST OF PACKERS AVENUE AND ALCOA AVENUE
WHEREAS, the City of Vernon (the "City") is a municipal
corporation and a chartered city of the State of California organized
and existing under its Charter and the Constitution of the State of
lCalifornia; and
WHEREAS, the City is the owner of a vacant triangular parcel
of real property located at the southeast corner of Packers Avenue and
Alcoa Avenue in the City of Vernon (the "Property"), which is surplus
to the City's present needs; and
WHEREAS, Section 37351 of the Government Code of the State of
California provides that the legislative body of a city may dispose of
real property for the benefit of the City; and
WHEREAS, Masterfoods USA, a Mars Incorporated Company,
("Masterfoods") desires to purchase the Property for future
development; and
WHEREAS, the City has agreed to sell the Property to
Masterfoods on negotiated terms, which the City has determined to be
fair and reasonable; and
WHEREAS, on July 14, 2004, the Finance Committee considered
the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
July 8, 2004, that an escrow account be opened, a purchase and sale
agreement be prepared, and the Property be quitclaimed to
1 Masterfoods; and
2 WHEREAS, by letter dated August 26, 2004, Bruce V.
3 Malkenhorst, City Administrator/City Clerk, recommended that an
4 Agreement to Purchase and Sell Real Estate and Escrow Instructions
5 with Masterfoods be approved and executed.
6 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
7 CITY OF VERNON AS FOLLOWS:
8 SECTION 1: The City Council of the City of Vernon hereby
9 finds and determines that the recitals contained hereinabove are true
10 and correct.
11 SECTION 2: The City Council of the City of Vernon hereby
12 Approves the Agreement to Purchase and Sell Real Estate and Escrow
13 Instructions with Masterfoods, in substantially the same form as the
14 copy which is attached hereto as Exhibit A and incorporated by
15 reference.
16 SECTION 3: The City Council of the City of Vernon hereby
17 authorizes the Mayor and the City Clerk to execute said Agreement for,
18 and on behalf of, the City of Vernon.
19 SECTION 4: The City Council of the City of Vernon hereby
20 authorizes the City Administrator to execute any and all documents as
21 shall be required to complete the sale of the Property and to
22 accomplish the close of escrow consistent with the terms of said
23 Agreement approved herein.
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 1st day of September, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
b.
THOMAS YBARRA, ayor Pro Tem
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
8524, was duly adopted by the City Council of the City of Vernon at a
(regular meeting of the City Council duly held on Wednesday,
September 1, 2004, and thereafter was duly signed by the Mayor Pro Tem
of the City of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
— 4 —
EXHIBIT
AM"
DRAFT
on
VA
3
4
5
6
rI
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AGREEMENT TO PURCHASE AND SELL REAL ESTATE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE (this
"Agreement") is made, entered into and executed in duplicate originals,
either copy of which may be considered and used as the original hereof
for all purposes, as of this lst day of September, 2004 (the "Effective
Date"),
BY AND BETWEEN
Im
1. PROPERTY.
THE CITY OF VERNON, a municipal
corporation (hereinafter referred to as
"Seller")
4305 Santa Fe Avenue
Vernon, CA 90058-0805
MASTERFOODS USA, a Mars Incorporated
Company, a Delaware Corporation
(hereinafter referred to as "Buyer")
3250 East 44th Street
Vernon, CA 90058
Seller agrees to sell, transfer, and convey to Buyer, and
Buyer agrees to purchase from Seller, upon the terms, provisions and
conditions hereinafter set forth, that certain tract, lot or parcel of
real property situated in the City of Vernon, Los Angeles County,
California, more particularly described in Exhibit A attached hereto
and incorporated by reference, consisting of approximately 18,883
square feet of land, more or less, and all improvements, appurtenant
easements, rights, privileges, hereditaments, appurtenances, fixtures
and articles of personal property attached and appurtenant thereto
owned by or in favor of Seller as of the Closing Date (defined below)
(collectively, the "Property").
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. PURCHASE PRICE.
The purchase price that Seller agrees to accept for the
Property and that Buyer agrees to pay therefor is the sum of Three
Hundred Seventy -Seven Thousand and Six HundredandSixty Dollars and No
Cents ($377,660.00) (the "Purchase Price"). The Purchase Price shall
be payable as follows:
(a) Earnest Money. In consideration of this Agreement
and to bind this sale and secure the performance of Buyer hereunder,
Buyer shall deposit with Escrow Agent upon execution of this Agreement,
the sum of Thirty -Eight Thousand Dollars and No Cents ($38,000.00) (the
"Earnest Money"). The Earnest Money shall be deposited by Escrow Agent
in an interest -bearing account selected by Buyer and approved by
Seller. Interest on the Earnest Money shall accrue for the benefit of,
and shall be paid, together with the balance of the Earnest Money to,
the party entitled thereto in accordance with this Agreement.
(b) Closing. At the Closing (defined below), on the
Closing Date, the Earnest Money (and interest thereon) shall be applied
against and in payment of the Purchase Price. The balance of the
Purchase Price shall be paid by Buyer in cash through Escrow.
3. CONVEYANCE OF TITLE.
Seller agrees to convey its interest in the Property to Buyer
1by Quitclaim Deed.
4. ESCROW.
Buyer and Seller shall 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: Julia
Davis, (213) 689-6301 ("Escrow Agent"). This Agreement constitutes the
joint escrow instructions of Buyer and Seller, and Escrow Agent to whom
- 2 -
J
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
these instructions are delivered is hereby empowered to act under this
Agreement.
S. ESCROW AGENT.
Escrow 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;
(iv) for documentary transfer taxes applicable to
the sale; and
(v) for fifty percent (50%) of escrow fees, as
well as charges and costs, including applicable brokerage fees.
(b) Pay and charge the Buyer for fifty percent (50%) of
escrow fees, as well as charges, and costs, except taxes.
(c) Disburse funds and deliver the Quitclaim Deed when
conditions of this escrow have been fulfilled by the Buyer and Seller.
6. TITLE REPORT.
Within ten (10) business days after the date escrow is
opened, or the full execution of this Agreement, whichever is later,
Buyer may obtain or be furnished by Escrow Agent, at Buyer's sole cost
and expense, a Preliminary Title Report ("PTR").
7. TITLE INSURANCE POLICY.
Upon Buyer's request, Escrow Agent shall, following recording
of a deed to Buyer, provide Buyer with a CLTA Standard Coverage Policy
of Title Insurance in the full amount of the Purchase Price, issued by
the Title Company showing title to the Property vested in Buyer. Buyer
agrees to pay the premium charged therefor. At Buyer's request, Escrow
- 3 -
DRAFT
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
jAgent shall instead furnish Buyer with an ALTA Owner's Policy of Title
lInsurance, with such endorsements and binders as Buyer may specify.
Buyer agrees to pay the amount charged in excess thereof.
8. ENVIRONMENTAL CONDITIONS.
(a) Hazardous Materials. For purposes of this
Agreement, the term "Hazardous Materials" means: (a) Substances that
are toxic, corrosive, flammable or ignitable; (b) petroleum products,
crude oil (or any fraction thereof) and their derivatives; (c)
explosives, asbestos, radioactive materials, hazardous wastes, toxic
substances or related hazardous materials; (d) noxious fumes, vapors,
soot or smoke; and (e) substances which now or in the future are
defined or regulated by any Environmental Laws as "hazardous,"
"hazardous substances," "hazardous materials," "hazardous wastes,"
"reproductive toxins," "toxins," "toxic," "toxic substances,"
P � � � �
"contaminants," "contamination," "pollutants," "pollution," or
otherwise, or are listed, regulated or addressed under any
Environmental Laws.
(b) Environmental Laws. For purposes of this
Agreement, the term "Environmental Laws" means: all laws pertaining to
Hazardous Materials, including, without limitation to the following
laws: 15 U.S. Code Section 2601, et seq. (the Toxic Substances Control
Act); 33 U.S. Code Section 1251, et seq. (the Clean Water Act); 42 U.S.
Code Section 6901, et seq. (the Resource Conservation and Recovery
Act); 42 U.S. Code Section 7401, et seq. (the Clean Air Act); 42 U.S.
Code Section 9601, et seq. (the Comprehensive Environmental Response,
Compensation and Liability Act); 49 U.S. Code Section 1801, et seq.
(the Hazardous Materials Transportation Act); 33 U.S.C. Section 2701,
et seq. (the Oil Pollution Act); California Health & Safety Code ("H&S
- 4 -
DRAFT
1 Code") Section 25100, et seq. (Hazardous Waste Control); H&S Code
2 Section 25300, et seq. (the Hazardous Substance Account Act); H&S Code
3 Section 25404, et seq. (Unified Hazardous Waste and Hazardous Materials
4 Management Regulatory Program); H&S Code Section 25531, et seq.
5 (Hazardous Materials Management); H&S Code Section 25249.5, et seq.(the
6 California Safe Drinking Water and Toxic Enforcement Act); H&S Code
7 Section 25280, et seq. (Underground Storage of Hazardous Substances);
8 H&S Code Section 25170.1, et seq. (the California Hazardous Waste
9 Management Act); H&S Code Section 25501, et seq. (Hazardous Materials
10 Response Plans and Inventory); H&S Code Section 18901, et seq.
11 (California Building Standards); California Water Code Section 13000,
12 et seq. (the Porter -Cologne Water Quality Control Act); California Fish
13 and Game Code Sections 5650-5656; local fire codes; the regulations
14 adopted and promulgated pursuant to such statutes, and any and all
15 regulations adopted pursuant to such statutes after the Effective Date
16 of this Agreement, as well as any and all subsequently enacted Federal
17 or California statute relating to the use, or disposal of Hazardous
18 Materials, or to the Clean Up of air, surface waters, groundwater, soil
19 or other media contaminated with such substances, together with the
20 rules and regulations promulgated thereunder, and any and all formal or
21 informal orders, decrees or requests from any public agency with
22 regulatory authority over,the Property.
23 (c) Disclosure of Environmental Conditions. Seller
24 discloses to Buyer and Buyer acknowledges that there is on -going
25 remediation of the Property relating to the presence of Hazardous
26 Materials being undertaken by SCS Engineers (on behalf of Vernon
27 Sanitation Supply, known as tetrachloroethylene also known as
28 Perchloroethylene (PCE) at, on or under the Property, and that the
0
1
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Property has been subject to regulatory agency directives, directions,
orders and requests. Seller has provided Buyer access to all non -
privileged reports in Seller's possession containing the results of
environmental investigation and remediation at the Property through the
Effective Date. Buyer has had an opportunity to review and copy all
such documents. Additional documents pertaining to the Hazardous
Materials that exist at, on, or under the Property may be available
from applicable regulatory agencies.
(d) Buyer's Assessment. Seller has provided Buyer and
its agents with a reasonable and adequate opportunity to enter upon the
Property to visually inspect all aspects of the Property, including,
without limitation, consistency with zoning and use limitations, the
existence and availability of utility connections, surface and
environmental conditions, and compliance or consistency with permits,
approvals, and applications of or to governmental agencies in
connection with the Property. After conducting any assessment at or of
the Property, Buyer, at its sole expense, shall restore the Property to
the condition that it was in prior to such assessment, unless expressly
permitted by Seller in writing. Buyer shall be solely responsible for
all costs, fees, and liabilities associated with its investigation and
review of the Property, and shall indemnify and hold harmless Seller
from and against any such costs, fees, and liabilities related
therewith. All activities conducted by or on behalf of Buyer as part
of Buyer's assessment shall be conducted in accordance with all
applicable laws. Prior to any entry by Buyer or any Buyer
Representatives onto the Property for the purposes of such inspections,
Buyer shall provide to Seller evidence satisfactory to Seller that
Buyer has in force adequate liability and worker's compensation
- 6 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
insurance to protect Seller against any and all claims which may occur
as a result of any activity of Buyer or Buyer's agent or representative
on the Property. The foregoing shall not limit or release Buyer's
indemnification obligations as set forth in this Agreement.
Seller acknowledges and agrees that in the course of Buyer's
investigation, Buyer and/or its agents may contact other parties,
including without limitation, other governmental agencies, to obtain
information about the Property.
9. REGULATORY STATUS.
(a) Seller has advised and Buyer is aware that there is
an on -going remediation of the Property and that further action is
required with respect to the presence or possible presence of toxic
Hazardous Materials at the Property. Buyer acknowledges and agrees
that Seller shall have no obligation whatsoever to take any remedial
action with respect to any conditions at the Property to obtain final
approval for reuse of the Property as of the Closing Date.
(b) Role of City Health Department. It is understood
that nothing in this agreement affects or limits the City Health
Department's responsibilities in the administration of local, state and
federal law with respect to remediation of the Property. Buyer agrees
that neither Seller's relationship to the City Health Department nor
anything required of Seller by the City Health Department in carrying
out its responsibilities under the law, shall excuse Buyer's
obligations under this Agreement. It is further understood that
Seller's approval of any contingency relative to the condition of the
Property, that may arise, only includes approval by the City of Vernon
in connection with its obligations under this Agreement, and does not
necessarily constitute approval by the City Health Department.
- 7 -
DRAFT
2
3
M
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10. REPRESENTATIONS AND WARRANTIES.
10.1 AS -IS Sale; Disclaimer of Seller Representations
and Warranties. Except as specifically stated in this Agreement,
neither Seller nor any advisor, officer, director, trustee, member,
employee, agent, attorney or contractor thereof or therefor
(individually and collectively, the "Seller Parties") is making or
shall be deemed to have made, nor does any Seller Party have the
authority to make, any express or implied representation or warranty of
any kind or nature as to the Property or the transaction contemplated
in this Agreement, including, without limitation, (i) the financial
status of the Property, including without limitation, income or
expenses generated, paid or incurred in connection with the Property,
(ii) the nature, physical or environmental condition, safety or any
other aspect of the Property or the Property's compliance with
applicable laws, ordinances, rules and regulations, including, without
limitation, zoning ordinances, building codes (including, without
limitation, the Americans With Disabilities Act) and environmental,
hazardous material and endangered species statutes, (iii) the accuracy
or completeness of any information or data provided or to be provided
by Seller Parties, including, without limitation, copies of any reports
or documents prepared in connection with the Property whether by third
parties or otherwise that may be included with such information, or
(iv) any other matter relating to the Property or Seller. Without
limiting the foregoing, Buyer hereby acknowledges that, except as
expressly provided in this Agreement or any of the documents to be
executed and delivered by Seller to Buyer at Closing, the Property will
be sold to Buyer "AS IS," "WHERE IS" and "WITH ALL FAULTS." There are
no representations and/or warranties, express or implied, made by
- 8 -
r
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(Seller Parties in connection with the transaction contemplated in this
Agreement, except as expressly set forth in this Agreement. Buyer
acknowledges and agrees that, except as otherwise stated in this
subparagraph, (i) Buyer shall rely upon Buyer's own due diligence in
determining whether the Property is suitable for purchase by Buyer;
(ii) Buyer has been given a reasonable opportunity to inspect and
investigate the Property, and all aspects relating thereto, either
independently or through agents and experts of Buyer's choosing; (iii)
Buyer is acquiring the Property based exclusively upon Buyer's own
investigations and inspections thereof and the express representations
and warranties of Seller contained in this Agreement and in the
documents to be ,executed and delivered by Seller to Buyer at Closing;
(iv) except as may be expressly otherwise provided in this Agreement,
Seller has no obligation to repair or correct any facts, circumstances,
conditions or defects or compensate Buyer therefor; and (v) except as
may be expressly otherwise provided in this Agreement, by reason of all
of the foregoing, Buyer shall assume the full risk of any loss or
damage occasioned by any fact, circumstance, condition or defect
pertaining to the Property.
10.2 Subject to the foregoing, Buyer further agrees a
acknowledges that:
(i) Buyer has, or by the expiration of 15 days
from the Effective Date of this Agreement, will have, with the
assistance of such experts as Buyer has deemed appropriate, made such
independent investigations and studies with respect to the Property as
it deems appropriate (including, without limitation, in connection with
physical and environmental matters), the transactions and all aspects
thereof, including without limitation hazardous materials and
- 9 -
r
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
endangered species, and it will be relying entirely thereon and on the
advice of its counsel, advisers and consultants concerning the
transactions. Buyer is not relying and shall not rely on any
investigation, study, projection or other information, economic,
physical, environmental or otherwise, prepared by Seller or any person
Jor entity affiliated with Seller.
(ii) Buyer has, or by the expiration of 15 days
from the Effective Date of this Agreement, will have, with the
assistance of such experts as Buyer has deemed appropriate, reviewed
all instruments, records and documents concerning the Property which
Buyer deems appropriate or advisable to review in connection with the
transactions.
(iii) Buyer has, or by the expiration of the 15
days from the Effective Date of this Agreement, will have, with the
assistance of such experts as Buyer has deemed appropriate, made such
examinations and investigations as it deems appropriate with respect to
the status of all circumstances concerning the zoning, land use
controls, required permits, building code compliance, environmental,
hazardous material and endangered species regulations and condition and
other matters with respect to the Property. Seller makes no
representation or warranty regarding the permitted use of the Property.
In particular, Seller makes no representation or warranty that the
Property may continue to be used for its present uses, that the
Property or any part thereof complies with any ordinances, codes or
regulations or were or are properly permitted, the condition of or
rights to ingress, egress or access to and from the Property, or the
condition of or any rights with respect to the water courses traversing
the Property.
- 10 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
IWA
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(iv) Seller has made or, within five (5) days
from the Effective Date, will make available for Buyer's inspection,
copies of certain studies, reports and other information in Seller's
possession applicable to the Property. By furnishing these materials
neither Seller nor any Seller Party shall be deemed to have made any
representation or warranty of any kind or nature whatsoever with
respect to any matter set forth, contained or addressed in such
materials, including but not limited to the accuracy, adequacy or
completeness thereof. The Seller Parties, and the preparer of any such
study, report, or information, shall incur no liability to Buyer by
reason of furnishing any such information. Consequently, Buyer, for
itself and its successors in interest, hereby releases the Seller
Parties from, and waives all Claims against the Seller Parties for any
and all statements or opinions now or hereafter made, or information
now or hereafter furnished, by the Seller Parties to Buyer or its
agents or representatives.
10.3 Release. Upon Closing, Buyer shall assume the
risk that adverse matters, including but not limited to, construction
defects, adverse physical, environmental, hazardous materials,
endangered species, zoning, access or water course issues or
conditions, may not have been revealed by Buyer's investigations.
Buyer releases all Seller Parties from, and waives any and all Claims
of any kind or nature, character, known or unknown, for or attributable
to, any latent or patent issue, defect or condition at the Property,
including without limitation, all Claims relating to the presence,
discovery or removal of any Hazardous Materials in, at, about or under
the Property, or for, connected with or arising out of any and all
Claims based thereon. Buyer realizes and acknowledges that factual
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
matters now unknown to it may have given or may hereafter give rise to
Claims that are presently unknown, unanticipated and unsuspected, and
Buyer further agrees that the waivers and releases herein have been
negotiated and agreed upon in light of that realization and that Buyer
nevertheless hereby intends to release, discharge and acquit Seller
from any such unknown Claims. In furtherance of this intention, the
Buyer hereby expressly waives any and all rights and benefits conferred
upon it by the provisions of California Civil Code Section 1542, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Buyer acknowledges that the foregoing
acknowledgments, releases and waivers including, without limitation,
the waiver of the provisions of California Civil Code Section 1542 were
expressly bargained for. The provisions of this Paragraph 10(b) shall
survive the Closing. For purposes of this Agreement, the term Claims
shall mean: any action, cause of action, claim, compensation, cost,
damage, demand, directive, enforcement, expense, fee (including
reasonable consultants' and attorneys' fees), fine, lawsuit, loss,
order, penalty, proceeding, right, or any other form of cost or
compensation whatsoever, including any government Claim.
10.4 Indemnity. Buyer agrees to indemnify and hold
Seller harmless from any and all Claims arising out of or in connection
with the Property that arise during or after the Closing. As between
Buyer and Seller, following the Closing, Buyer shall be solely
responsible for, and shall indemnify, protect, defend (with counsel
- 12 -
I
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reasonably acceptable to Seller) and hold harmless Seller from and
against, any and all Claims, direct or indirect, on account of or in
any way arising out of or in connection with the presence or alleged
presence of Hazardous Materials at, on, under, or emanating from the
Property. The provisions of this Paragraph 10(c) shall survive the
Closing.
11. 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 Escrow Agent of the properly
executed Quitclaim Deed; and
(ii) Delivery to the Escrow Agent of an affidavit
that Seller is not a "foreign person" as described in Section 18 below.
(b) The obligation of the Seller under this Agreement
is subject to the fulfillment, or waiver by Seller, of the following:
(i) Delivery into escrow by Buyer of the Purchase
Price and its share of Closing costs. Said amount will be deposited in
escrow by Buyer upon request of the Escrow Agent; and
(ii) Delivery to the Escrow Agent of an affidavit
that Buyer is not a "foreign person" as described in Section 18 below.
12. WAIVER OF BREACH.
The waiver by either party of any condition or breach by
the other party of any term, covenant, or condition herein contained
shall not be deemed to be a waiver of any other condition of any
subsequent breach of the same or any other term, covenant, or condition
herein contained.
13. CLOSING.
(a) Date and Location. The purchase and sale
- 13 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
transaction contemplated by this Agreement shall close (the "Closing")
not later than forty-five (45) days from the Effective Date of this
Agreement, or on such other date as the parties may otherwise mutually
agree (the "Closing Date"). Closing shall be held at the offices of
Escrow Agent, or at a location in Vernon, California which is mutually
agreeable to both parties.
(b) Seller's Obligations. At the Closing, Seller
shall:
(i) Deliver to Buyer or Buyer's assignee a duly
executed and acknowledged Quitclaim Deed conveying Seller's interest in
,the Property to Buyer or Buyer's assignee; and
(ii) Deliver to Buyer or Buyer's assignee
;possession of the Property.
(c) Buyer's Obligations. At the Closing, Buyer shall:
(i) Make payment of the Purchase Price to Seller
in accordance with Section 2 hereinabove. Buyer shall pay for the cost
of Title Insurance coverage(s)as provided for in Section 7 of this
;Agreement; and
(ii) Deliver to Seller reasonable evidence of the
,authority of Buyer's representatives to execute this Agreement for and
on behalf of Buyer.
(d) Costs. Except to the extent specifically allocated
�in this Agreement, each party shall pay its share of the costs
associated with the Closing that are normally assessed against a Seller'
and Buyer in a transaction of this character in the county where the
;Property is located. Each party shall be responsible for its or his
own legal, accountant or other professional fees, if any.
- 14 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14. RISK OF LOSS.
Prior to the Closing Date and the transfer of its interest in
the Property to Buyer, Seller shall assume the risk of loss,
destruction or damage to the Property by fire, Act of God, other
casualty. Buyer assumes, as of the Closing Date and transfer of
!Seller's interest in the Property, all hazards of damage to or
destruction of the Property and of the taking of the Property or any.
part thereof for public use, and agrees that no such damage,
destruction or taking shall constitute a failure of consideration.
15. BROKER.
Seller and Buyer each represent and warrant to the other that
Ino real estate brokers or finders are or were involved with respect to
,any of the transactions contemplated by this Agreement. Each party
;hereto will indemnify and hold harmless the other from any other claim
jor 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.
16. NOTICES.
All notices, demands and requests and other
communications required or permitted hereunder shall be in writing and
,shall be deemed to be delivered, when received, if delivered
1personally, by private messenger, courier service (e.g., Federal
Express, a commercial messenger service or any similar means of
delivery), or facsimile transmission, or by United States Mail,
registered or certified, return receipt requested, postage prepaid,
,addressed to the parties at the addresses hereinabove set forth or such
lother address as either party may furnish in writing.
i
i
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17. NON -FOREIGN PERSON.
(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
wi11 execute at or prior to the Closing Date such appropriate affidavit
for affidavits as may be necessary to evidence same in accordance with
Treasury Department Regulation 1.1445-2T(b)(2)(iii).
(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.
Section 3101, et seq. Buyer will execute at or prior to the Closing
Date such appropriate affidavit or affidavits as may be necessary to
evidence the same.
18. ATTORNEY'S FEES.
In the event that either Buyer or Seller shall institute suit
Ito enforce any rights hereunder, the successful party shall be entitled
Ito court costs and reasonable attorney's fees.
19. HEADINGS.
The headings contained in this Agreement are for reference
only and shall not be deemed to be a purposes y part of this Agreement or
to affect the meaning or interpretation of this Agreement.
20. MERGER.
All prior understandings and agreements between the parties,
oral or written, are merged into this Agreement, which in itself alone
fully and completely expresses the understanding of the parties herein.
21. MODIFICATION.
This Agreement shall not be modified or amended except by a
(written instrument duly executed by the parties hereto.
- 16 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22. BINDING EFFECT AND ASSIGNABILITY.
This Agreement shall be binding upon and shall inure to the
>enefit of the parties hereto, and their approved (in accordance with
:he terms of this Agreement) successors and assigns. Neither party
;hall assign this Agreement without the prior written consent of the
>ther.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth in the Agreement
shall be continuing and shall survive the Closing.
i
24. GOVERNING LAW.
This Agreement shall be construed and governed in accordance
with the laws of the State of California.
25. Forum Selection.
Any action brought relating to this Agreement shall be
brought and held exclusively in a State Court in the County of Los
Angeles, California.
26. PROHIBITION AGAINST RECORDING.
Neither Buyer nor Seller shall cause this Agreement, or any
part or memorandum thereof, to be placed or filed of record.
27. MODIFIED TIME OF THE ESSENCE.
If full performance of this Agreement is not completed by the
Closing Date, either party shall have the right thereafter to declare
'time to be of the essence of this Agreement by giving written notice
thereof to the other party. Such notice shall contain a declaration
that time is of the essence and shall fix the time, place and date of
final settlement, which date may not be sooner than thirty (30) days
ifollowing the Effective Date of such notice.
- 17 -
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
j 29. RIGHT TO UNWIND; ADDITIONAL ESCROW INSTRUCTIONS.
Notwithstanding anything in this Agreement to the contrary,
Buyer and Seller hereby acknowledge and agree that:
(a) Buyer's desire to acquire the Property is motivated'
by Buyer's desire to obtain title to all of the real property adjacent
Ito Packers Avenue so that Buyer can pursue the vacation of Packers
Avenue;
(b) Accordingly, on or before the Closing Date, Buyer
shall deposit into Escrow, in addition to the balance of the Purchase
(Price, a Quitclaim Deed in favor of Seller ("Buyer's Quitclaim Deed");
(c) On the Closing Date, Escrow Agent shall record the
Quitclaim Deed from Seller to Buyer, but shall retain in escrow the
Purchase Price and Buyer's Quitclaim Deed; and
(d) If Escrow Agent shall receive written notice
executed by both Buyer and Seller within one hundred eight (180) days
I
(,after the Closing Date advising Escrow Agent that the Vernon City
(Council has voted to vacate Packers Avenue, then on the first business
day following Escrow Agent's receipt of such written notice, Escrow
j
,Agent shall release Buyer's Quitclaim Deed to Buyer and shall release
the Purchase Price, plus all accrued interest thereon, to Seller;
(e) If Escrow Agent has not received written notice of
ithe vacation of Packers Avenue executed by both Buyer and Seller within
one hundred eighty (180) days after the Closing Date, then on the first
business day following the end of such 180-day period, Escrow Agent
IDRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shall record Buyer's Quitclaim Deed and shall release the Purchase
;Price, plus all accrued interest thereon, to Seller. Upon the
consummation of such releases, this Agreement shall terminate, other
than any provisions expressly stated to survive the Closing or the
termination of this Agreement, and no party hereto shall have any
,further obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement in duplicate as of the day and year first above written.
SELLER: BUYER:
THE CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
ATTEST:
IBy:
MASTERFOODS USA
By:
Title:
By:
BRUCE V. MALKENHORST, City Clerk Title:
!APPROVED AS TO FORM:
By:
ERIC T. FRESCH, City Attorney
- 19 -
_ r r
DRAFT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT "A"
Legal Description of the Property located in the City of Vernon, County of Los Angeles, State of California
consisting of approximately 18,883 square feet.
Those portions of lots 26, 27, 28, 29, 30, 31 and 32 of Tract No. 6056, in the City of
Vernon, County of Los Angeles, State of California, as recorded in map book 74 at page
33 of maps in the office of the County Recorder of said county more particularly described
as follows:
Beginning at the southeast corner of said lot 26; thence North 00' 01' 30" West a distance
of 95.00 feet along the easterly line of said lot 26 to a point 5.00 feet South of the
northerly line of said lot 26; thence 0.30 feet North 89' 57' 30" West along a line parallel
and southerly 5.00 feet from the northerly line of said lot 26 to the beginning of a tangent
curve concave southerly and having a radius of 307.00 feet; thence southwesterly along
said curve through a central angle of 17' 00'52" a distance of 91.17 feet to a tangent line;
thence along said tangent line South 73' 0V 38" West a distance of 241.63 feet; thence
South 44 56' 42" West a distance of 15.24 feet to the southwest corner of said lot 32;
thence South 890 57' 30" East a distance of 332.04 feet along the southerly lines of lots 32,
31, 30, 29, 28, 27 and 26 to the point of beginning. See Exhibit "A" consisting of one
sheet attached hereto and made a part hereof.
m
r7
-_�-_---_'__'_----� ``_-__'__-_--__-__'-_'_--_--__'__--_'__'_-'_
00-001-00" (FORMERLY
--------------------- ---------------------- --��-- � - f�ft��»~
(A` -- - -' —''-''--''^
---'-----'--'--/���� w oo'-oo-oo~ -
El
UI
.
AGREEMENT TO PURCHASE AND SELL REAL ESTATE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE (this
"Agreement") is made, entered into and executed in duplicate originals,
either copy of which may be considered and used as the original hereof
for all purposes, as of this W day of September, 2004 (the
"Effective Date"),
BY AND BETWEEN THE CITY OF VERNON, a municipal
corporation (hereinafter referred to as
"Seller")
4305 Santa Fe Avenue
Vernon, California 90058-0805
AND
1. PROPERTY.
MASTERFOODS USA, a Mars Incorporated
Company, a Delaware Corporation
(hereinafter referred to as "Buyer")
3250 East 44th Street
Vernon, CA 90058
Seller agrees to sell, transfer, and convey to Buyer, and Buyer agrees
to purchase from Seller, upon the terms, provisions and conditions
hereinafter set forth, that certain tract, lot or parcel of real
property situated in the City of Vernon, Los Angeles County,
California, more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference, consisting of approximately
18,883 square feet of land, more or less, and all improvements,
appurtenant easements, rights, privileges, hereditaments,
appurtenances, fixtures and articles of personal property attached and
appurtenant thereto owned by or in favor of Seller as of the Closing
Date (defined below) (collectively, the "Property").
2. PURCHASE PRICE.
The purchase price that Seller agrees to accept for the
Property, and that Buyer agrees to pay, is the sum of Three Hundred
Seventy Seven Thousand and Six Hundred and Sixty Dollars and No Cents
($377,660.00)(the "Purchase Price"). The Purchase Price shall be
payable as follows:
(a) Earnest Money. In consideration of this Agreement
and to bind this sale and secure the performance of Buyer hereunder,
Buyer shall deposit with Escrow Agent upon execution of this Agreement
by Buyer, the sum of Thirty -Eight Thousand Dollars and No Cents
($38,000.00)(the `Earnest Money"). The Earnest Money shall be
deposited by Escrow Agent in an interest -bearing account selected by
Buyer and approved by Seller. Interest on the Earnest Money shall
accrue for the benefit of, and shall be paid, together with the balance
of the Earnest Money to, the party entitled thereto in accordance with
this Agreement.
(b) Closing. At the Closing (defined below), on the
Closing Date, the Earnest Money (and interest thereon) shall be applied
against and in payment of the Purchase Price. The balance of the
Purchase Price shall be paid by Buyer in cash through Escrow.
3. CONVEYANCE OF TITLE.
Seller agrees to convey its interest in the Property to Buyer
by Quitclaim Deed.
4. ESCROW.
Buyer and Seller shall open an escrow in accordance with this
Agreement at Fidelity National Title Company located at 601 S. Figueroa
- 2 -
LA\1297612.4
Street, Suite 2130, Los Angeles California 90017, Attention: Julia
Davis, ph. 213-689-6301 ("Escrow Agent"). This Agreement constitutes
the joint escrow instructions of Buyer and Seller, and Escrow Agent to
whom these instructions are delivered is hereby empowered to act under
this Agreement.
5. ESCROW AGENT.
Escrow 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;
(iv) for documentary transfer taxes applicable to
the sale; and
(v) for fifty percent (500) of escrow fees, as
well as charges and costs, including applicable brokerage fees.
(b) Pay and charge the Buyer for fifty percent (500) of
escrow fees, as well as charges, and costs, except taxes.
(c) Disburse funds and deliver the Quitclaim Deed when
conditions of this escrow have been fulfilled by the Buyer and Seller.
6. TITLE REPORT.
Within ten (10) business days after the date escrow is
opened, or the full execution of this Agreement, whichever is later,
Buyer may obtain or be furnished by Escrow Agent, at Buyer's sole cost
and expense, a preliminary title report ("PTR").
- 3 -
LA\1291612.4
7. TITLE INSURANCE POLICY.
Upon Buyer's request, Escrow Agent shall, following recording
of a deed to Buyer, provide Buyer with a CLTA Standard Coverage Policy
of Title Insurance in the full amount of the Purchase Price, issued by
the Title Company showing title to the Property vested in Buyer. Buyer
agrees to pay the premium charged therefor. At Buyer's request, Escrow
Agent shall instead furnish Buyer with an ALTA Owner's Policy of Title
Insurance, with such endorsements and binders as Buyer may specify.
Buyer agrees to pay the amount charged in excess thereof.
8. ENVIRONMENTAL CONDITIONS.
(a) Hazardous Materials. For purposes of this
Agreement, the term "Hazardous Materials" means: (a) Substances that
are toxic, corrosive, flammable or ignitable; (b) petroleum products,
crude oil (or any fraction thereof) and their derivatives; (c)
explosives, asbestos, radioactive materials, hazardous wastes, toxic
substances or related hazardous materials; (d) noxious fumes, vapors,
soot or smoke; and (e) substances which now or in the future are
defined or regulated by any Environmental Laws as "hazardous",
"hazardous substances," "hazardous materials," "hazardous wastes,"
"reproductive toxins", "toxins", "toxic", "toxic substances",
NNcontaminants", "contamination", "pollutants", "pollution," or
otherwise, or are listed, regulated or addressed under any
Environmental Laws.
(b) Environmental Laws. For purposes of this
Agreement, the term "Environmental Laws" means: all laws pertaining to
Hazardous Materials, including, without limitation the following laws:
15 U.S. Code Section 2601, et seq. (the Toxic Substances Control Act);
- 4 -
LA\1297612.4
33 U.S. Code Section 1251, et seq. (the Clean Water Act); 42 U.S. Code
Section 6901, et seq. (the Resource Conservation and Recovery Act); 42
U.S. Code Section 7401, et seq. (the Clean Air Act); 42 U.S. Code
Section 9601, et seq. (the Comprehensive Environmental Response,
Compensation and Liability Act); 49 U.S. Code Section 1801, et seq.
(the Hazardous Materials Transportation Act); 33 U.S.C. Section 2701,
et seq. (the Oil Pollution Act); California Health & Safety Code ("H&S
Code") Section 25100, et seq. (Hazardous Waste Control); H&S Code
Section 25300, et seq. (the Hazardous Substance Account Act); H&S Code
Section 25404 et seq. (Unified Hazardous Waste and Hazardous Materials
Management Regulatory Program); H&S Code Section 25531, et seq.
(Hazardous Materials Management); H&S Code Section 25249.5, et seq.(the
California Safe Drinking Water and Toxic Enforcement Act); H&S Code
Section 25280, et seq. (Underground Storage of Hazardous Substances);
H&S Code Section 25170.1, et seq. (the California Hazardous Waste
Management Act); H&S Code Section 25501, et seq. (Hazardous Materials
Response Plans and Inventory); H&S Code Section 18901, et seq.
(California Building Standards); California Water Code Section 13000,
et seq. (the Porter -Cologne Water Quality Control Act); California Fish
and Game Code Sections 5650-5656; local fire codes; the regulations
adopted and promulgated pursuant to such statutes, and any regulations
adopted pursuant to such statutes after the Effective Date of this
Agreement, as well as any subsequently enacted Federal or California
statute relating to the use, or disposal of Hazardous Materials, or to
the Clean Up of air, surface waters, groundwater, soil or other media
contaminated with such substances, together with the rules and
regulations promulgated thereunder, and any and all formal or informal
- 5 -
LA\1297612.4
orders, decrees or requests from any public agency with regulatory
authority over the Property.
(c) Disclosure of Environmental Conditions. Seller
discloses to Buyer and Buyer acknowledges that there is on -going
remediation of the Property relating to the presence of Hazardous
Materials being undertaken by SCS Engineers (on behalf of Vernon
Sanitation Supply), known as tetrachloroethylene, also known as
Perchloroethylene (PCE), at, on or under the Property, and that the
Property has been subject to regulatory agency directives, directions,
orders and requests. Seller has provided Buyer access to all non -
privileged reports in Seller's possession containing the results of
environmental investigation and remediation at the Property through the
Effective Date. Buyer has had an opportunity to review and copy all
such documents. Additional documents pertaining to the Hazardous
Materials that exist at, on, or under the Property may be available
from applicable regulatory agencies.
(d) Buyer's Assessment. Seller has provided Buyer and
its agents with a reasonable and adequate opportunity to enter upon the
Property to visually inspect all aspects of the Property, including,
without limitation, consistency with zoning and use limitations, the
existence and availability of utility connections, surface and
environmental conditions, and compliance or consistency with permits,
approvals, and applications of or to governmental agencies in
connection with the Property. After conducting any assessment at or of
the Property, Buyer, at its sole expense, shall restore the Property to
the condition that it was in prior to such assessment, unless expressly
permitted by Seller in writing. Buyer shall be solely responsible for
- 6 -
LA\1297612.4
all costs, fees, and liabilities associated with its investigation and
review of the Property, and shall indemnify and hold harmless Seller
from and against such costs, fees, and liabilities. All activities
conducted by or on behalf of Buyer as part of Buyer's assessment shall
be conducted in accordance with all applicable laws. Prior to any
entry by Buyer or any Buyer Representatives onto the Property for the
purposes of such inspections, Buyer shall provide to Seller evidence
satisfactory to Seller that Buyer has in force adequate liability and
worker's compensation insurance to protect Seller against any and all
claims which may occur as a result of any activity of Buyer or Buyer's
agent or representative on the Property. The foregoing shall not limit
or release Buyer's indemnification obligations as set forth in this
Agreement.
Seller acknowledges and agrees that in the course of Buyer's
investigation, Buyer and/or its agents may contact other parties,
including without limitation, other governmental agencies, to obtain
information about the Property.
9. REGULATORY STATUS.
(a) Seller has advised and Buyer is aware that there is
an on -going remediation of the Property and that further action is
required with respect to the presence or possible presence of toxic
Hazardous Materials at the Property. Buyer acknowledges and agrees
that Seller shall have no obligation whatsoever to take any action with
respect to any conditions at the Property to obtain final approval for
reuse of the Property as of the Closing Date.
(b) Role of City Health Department. It is understood
that nothing in this agreement affects or limits the City Health
- 7 -
LA\1297612.4
Department's responsibilities in the administration of local, state and
federal law with respect to remediation of the Property. Buyer agrees
that neither Seller's relationship to the City Health Department nor
anything required of Seller by the City Health Department in carrying
out its responsibilities under the law, shall excuse Buyer's
obligations under this Agreement. It is further understood that
Seller's approval of any contingency relative to the condition of the
Property, that may arise, only includes approval by the City of Vernon
in connection with its obligations under this Agreement, and does not
necessarily constitute approval by the City Health Department.
10. REPRESENTATIONS AND WARRANTIES.(a)AS-IS Sale; Disclaimer
of Seller Representations and Warranties.
(1) Except as specifically stated in this Agreement, neither
Seller nor any advisor, officer, director, trustee, member, employee,
agent, attorney or contractor thereof or therefor (individually and
collectively, the "Seller Parties") is making or shall be deemed to
have made, nor does any Seller Party have the authority to make, any
express or implied representation or warranty of any kind or nature as
to the Property or the transaction contemplated in this Agreement,
including, without limitation, (i) the financial status of the
Property, including without limitation, income or expenses generated,
paid or incurred in connection with the Property, (ii) the nature,
physical or environmental condition, safety or any other aspect of the
Property or the Property's compliance with applicable laws, ordinances,
rules and regulations, including, without limitation, zoning
ordinances, building codes (including, without limitation, the
Americans With Disabilities Act) and environmental, hazardous material
- 8 -
LA\1297612.4
and endangered species statutes, (iii) the accuracy or completeness of
any information or data provided or to be provided by Seller Parties,
including, without limitation, copies of any reports or documents
prepared in connection with the Property whether by third parties or
otherwise that may be included with such information, or (iv) any other
matter relating to the Property or Seller.
(2) Without limiting the foregoing, Buyer hereby acknowledges
that, except as expressly provided in this Agreement or any of the
documents to be executed and delivered by Seller to Buyer at Closing,
the Property will be sold to Buyer "AS IS", "WHERE IS" and "WITH ALL
FAULTS". There are no representations and/or warranties, express or
implied, made by Seller Parties in connection with the transaction
contemplated in this Agreement, except as expressly set forth in this
Agreement. Buyer acknowledges and agrees that, except as otherwise
stated in this subparagraph (a), (i) Buyer shall rely upon Buyer's own
due diligence in determining whether the Property is suitable for
purchase by Buyer; (ii) Buyer has been given a reasonable opportunity
to inspect and investigate the Property, and all aspects relating
thereto, either independently or through agents and experts of Buyer's
choosing; (iii) Buyer is acquiring the Property based exclusively upon
Buyer's own investigations and inspections thereof and the express
representations and warranties of Seller contained in this Agreement
and in the documents to be executed and delivered by Seller to Buyer at
Closing; (iv) except as may be expressly otherwise provided in this
Agreement, Seller has no obligation to repair or correct any facts,
circumstances, conditions or defects or compensate Buyer therefor; and
(v) except as may be expressly otherwise provided in this Agreement, by
- 9 -
LA\1297612.4
reason of all of the foregoing, Buyer shall assume the full risk of any
loss or damage occasioned by any fact, circumstance, condition or
defect pertaining to the Property.
(3) Subject to the foregoing, Buyer further agrees and
acknowledges that:
(i) Buyer has, or by the expiration 15 days from
the Effective Date of this Agreement, will have, with the assistance of
such experts as Buyer has deemed appropriate, made such independent
investigations and studies with respect to the Property as it deems
appropriate (including, without limitation, in connection with physical
and environmental matters), the transactions and all aspects thereof,
including without limitation hazardous materials and endangered
species, and it will be relying entirely thereon and on the advice of
its counsel, advisers and consultants concerning the transactions.
Buyer is not relying and shall not rely on any investigation, study,
projection or other information, economic, physical, environmental or
otherwise, prepared by Seller Parties or any person or entity
affiliated with Seller.
(ii) Buyer has, or by the expiration of 15 days
from the Effective Date of this Agreement, will have, with the
assistance of such experts as Buyer has deemed appropriate, reviewed
all instruments, records and documents concerning the Property which
Buyer deems appropriate or advisable to review in connection with the
transactions.
(iii) Buyer has, or by the expiration of the 15
days from the Effective Date of this Agreement, will have, with the
assistance of such experts as Buyer has deemed appropriate, made such
- 10 -
LA\1297612.4
examinations and investigations as it deems appropriate with respect to
the status of all circumstances concerning the zoning, land use
controls, required permits, building code compliance, environmental,
hazardous material and endangered species regulations and condition and
other matters with respect to the Property. Seller makes no
representation or warranty regarding the permitted use of the Property.
In particular, Seller makes no representation or warranty that the
Property may continue to be used for its present uses, that the
Property or any part thereof complies with any ordinances, codes or
regulations or were or are properly permitted, the condition of or
rights to ingress, egress or access to and from the Property, or the
condition of or any rights with respect to the water courses traversing
the Property.
(iv) Seller has made or, within five (5) days from
the Effective Date, will make available for Buyer's inspection copies
of certain studies, reports and other information in Seller's
possession applicable to the Property. By furnishing these materials
neither Seller nor any Seller Party shall be deemed to have made any
representation or warranty of any kind or nature whatsoever with
respect to any matter set forth, contained or addressed in such
materials, including but not limited to the accuracy, adequacy or
completeness thereof. The Seller Parties, and the preparer of any such
study, report, or information, shall incur no liability to Buyer by
reason of furnishing any such information. Consequently, Buyer, for
itself and its successors in interest, hereby releases the Seller
Parties from, and waives all Claims against the Seller Parties for any
and all statements or opinions now or hereafter made, or information
LA\1297612.4
now or hereafter furnished, by the Seller Parties to Buyer or its
agents or representatives.
(b) Release. Upon Closing, Buyer shall assume the risk
that adverse matters, including but not limited to, construction
defects, adverse physical, environmental, hazardous materials,
endangered species, zoning, access or water course issues or
conditions, may not have been revealed by Buyer's investigations.
Buyer releases all Seller Parties from, and waives any and all Claims
of any and every kind or character, known or unknown, for or
attributable to, any latent or patent issue or condition at the
Property, including without limitation, all Claims relating to the
presence, discovery or removal of any Hazardous Materials in, at, about
or under the Property, or for, connected with or arising out of any and
all Claims based thereon. Buyer realizes and acknowledges that factual
matters now unknown to it may have given or may hereafter give rise to
Claims that are presently unknown, unanticipated and unsuspected, and
Buyer further agrees that the waivers and releases herein have been
negotiated and agreed upon in light of that realization and that Buyer
nevertheless hereby intends to release, discharge and acquit Seller
from any such unknown Claims. In furtherance of this intention, the
Buyer hereby expressly waives any and all rights and benefits conferred
upon it by the provisions of California Civil Code Section 1542, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
- 12 -
LA\1297612.4
The Buyer acknowledges that the foregoing
acknowledgments, releases and waivers including, without limitation,
the waiver of the provisions of California Civil Code Section 1542 were
expressly bargained for. The provisions of this Paragraph 10(b) shall
survive the Closing. For purposes of this Agreement, the term Claims
shall mean: any action, cause of action, claim, compensation, cost,
damage, demand, directive, enforcement, expense, fee (including
reasonable consultants' and attorneys' fees), fine, lawsuit, loss,
order, penalty, proceeding, right, or any other form of cost or
compensation whatsoever, including any government Claim.
(c) Indemnity. Buyer agrees to indemnify and hold
Seller harmless from any and all Claims arising out of or in connection
with the Property that arise on or after the Closing. As between Buyer
and Seller, following the Closing, Buyer shall be solely responsible
for, and shall indemnify, protect, defend (with counsel reasonably
acceptable to Seller) and hold harmless Seller from and against, any
and all Claims, direct or indirect, on account of or in any way arising
out of or in connection with the presence or alleged presence of
Hazardous Materials at, on, under, or emanating from the Property. The
provisions of this Paragraph 10(c) shall survive the Closing.
11. 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 Escrow Agent of the properly
executed Quitclaim Deed; and
(ii) Delivery to the Escrow Agent of an affidavit
that Seller is not a "foreign person" as described in Section 17 below.
- 13 -
LA\1297612.4
(b) The obligation of the Seller under this Agreement
is subject to the fulfillment, or waiver by Seller, of the following:
(i) Delivery into escrow by Buyer of the Purchase
Price and its share of Closing costs. Said amount will be deposited in
escrow by Buyer upon request of the Escrow Agent; and
(ii) Delivery to the Escrow Agent of an affidavit
that Buyer is not a "foreign person" as described in Section 17 below.
12. WAIVER OF BREACH.
The waiver by either party of any condition or breach by the
other party of any term, covenant, or condition herein contained shall
not be deemed to be a waiver of any other condition of any subsequent
breach of the same or any other term, covenant, or condition herein
contained.
13. CLOSING.
(a) Date and Location. The purchase and sale
transaction contemplated by this Agreement shall close (the "Closing")
not later than forty-five (45) days from the Effective Date of this
Agreement, or on such other date as the parties may otherwise mutually
agree (the "Closing Date"). Closing shall be held at the offices of
Escrow Agent, or at a location in Vernon, California which is mutually
agreeable to both parties.
(b) Seller's Obligations. At the Closing, Seller
shall:
(i) Deliver to Buyer or Buyer's assignee a duly
executed and acknowledged Quitclaim Deed conveying Seller's interest in
the Property to Buyer or Buyer's assignee; and
- 14 -
LA\1297612.4
(ii) Deliver to Buyer or Buyer's assignee
possession of the Property.
(c) Buyer's Obligations. At the Closing, Buyer shall:
(i) Make payment of the Purchase Price to Seller
in accordance with Section 2 hereinabove. Buyer shall pay for the cost
of Title Insurance coverage(s)as provided for in Section 7 of this
Agreement; and
(ii) Deliver to Seller reasonable evidence of the
authority of Buyer's representatives to execute this Agreement for and
on behalf of Buyer.
(d) Costs. Except to the extent specifically allocated
in this Agreement, each party shall pay its share of the costs
associated with the Closing that are normally assessed against a Seller
and Buyer in a transaction of this character in the county where the
Property is located. Each party shall be responsible for its or his
own legal, accountant or other professional fees, if any.
14. RISK OF LOSS.
Seller shall assume the risk of loss, destruction or damage
to the Property by fire, Act of God, other casualty prior to the
Closing Date and the transfer of its interest in the Property to Buyer.
Buyer assumes, as of the Closing Date and transfer of Seller's interest
in the Property, all hazards of damage to or destruction of the
Property and of the taking of the Property or any part thereof for
public use, and agrees that no such damage, destruction or taking shall
constitute a failure of consideration.
- 15 -
LA\1297612.4
15. BROKER.
Seller and Buyer each represent and warrant to the other that
no real estate brokers or finders are or were involved with respect to
any of the transactions contemplated by this Agreement. 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.
16. NOTICES.
All notices, demands and requests and other communications
required or permitted hereunder shall be in writing and shall be deemed
to be delivered when received, if delivered personally, by private
messenger, courier service (e.g., Federal Express, a commercial
messenger service or any similar means of delivery), or facsimile
transmission, or by United States Mail, registered or certified, return
receipt requested, postage prepaid, addressed to the parties at the
addresses hereinabove set forth or such other address as either party
may furnish in writing.
17. NON -FOREIGN PERSON.
(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 same in accordance with
Treasury Department Regulation 1.1445-2T(b)(2)(iii).
(b) Buyer's Certification. Buyer certifies and affirms
that Buyer is not a "foreign person" within the meaning of the federal
- 16 -
LA\1297612.4
International Investment Survey Act of 1976, as amended, 22 U.S.C.
Section 3101, et seq. Buyer will execute at or prior to the Closing
Date such appropriate affidavit or affidavits as may be necessary to
evidence the same.
18. ATTORNEY'S FEES.
In the event that either Buyer or Seller shall institute suit
to enforce any rights hereunder, the successful party shall be entitled
to court costs and reasonable attorney's fees.
19. HEADINGS.
The headings contained in this Agreement are for reference
purposes only and shall not be deemed to be a part of this Agreement or
to affect the meaning or interpretation of this Agreement.
20. MERGER.
All prior understandings and agreements between the parties,
oral or written, are merged into this Agreement, which alone fully and
completely expresses their understanding.
21. MODIFICATION.
This Agreement shall not be modified or amended except by a
written instrument duly executed by the parties hereto.
22. BINDING EFFECT AND ASSIGNABILITY.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their approved (in accordance with
the terms of this Agreement) successors and assigns. Neither party
shall assign this Agreement without the prior written consent of the
other.
- 17 -
LA\1297612.4
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth in the Agreement
shall be continuing and shall survive the Closing.
24. GOVERNING LAW.
This Agreement shall be construed and governed in accordance
with the laws of the State of California.
25. FORUM SELECTION.
Any action brought relating to this Agreement shall be
brought and held exclusively in a State Court in the County of Los
Angeles, California.
26. PROHIBITION AGAINST RECORDING.
Neither Buyer nor Seller shall cause this Agreement, or any
part or memorandum thereof, to be placed or filed of record.
27. MODIFIED TIME OF THE ESSENCE.
If full performance of this Agreement is not completed by the
Closing Date, either party shall have the right thereafter to declare
time to be of the essence of this Agreement by giving written notice
thereof to the other party. Such notice shall contain a declaration
that time is of the essence and shall fix the time, place and date of
final settlement, which date may not be sooner than thirty (30) days
following the Effective Date of such notice.
28. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
- 18 -
LA\1297612.4
29. RIGHT TO UNWIND; ADDITIONAL ESCROW INSTRUCTIONS.
Notwithstanding anything in this Agreement to the contrary,
Buyer and Seller hereby acknowledge and agree that:
(a) Buyer's desire to acquire the Property is
motivated by Buyer's desire to obtain title to all of the real property
adjacent to Packers Avenue so that Buyer can pursue the vacation of
Packers Avenue and if such vacation cannot be promptly achieved, the
parties wish to unwind the conveyance contemplated by this Agreement;
(b) Accordingly, on or before the Closing Date, Buyer
shall deposit into Escrow, in addition to the balance of the Purchase
Price, a quitclaim deed in favor of Seller ("Buyer's Quitclaim Deed");
(c) On the Closing Date, Escrow Agent shall record
the Quitclaim Deed from Seller to Buyer, but shall retain in escrow the
Purchase Price (holding the Purchase Price in the same interest -bearing
account into which the Earnest Money had been deposited pursuant to
Section 2(a) above) and Buyer's Quitclaim Deed;
(d) If Escrow Agent receives written notice executed
by both Buyer and Seller within one hundred eighty (180) days after the
Closing Date advising Escrow Agent that the Vernon City Council has
voted to vacate Packers Avenue (the "Vacation Confirmation Notice"),
then on the first business day following Escrow Agent's receipt of the
Vacation Confirmation Notice, Escrow Agent shall release Buyer's
Quitclaim Deed to Buyer and shall release the Purchase Price, plus all
accrued interest thereon, to Seller;
(e) If Escrow Agent has not received the Vacation
Confirmation Notice within one hundred eighty (180) days after the
Closing Date, then on the first business day following the end of such
- 19 -
LA\1297612.9
180-day period, Escrow Agent shall record Buyer's Quitclaim Deed and
shall release the Purchase Price, plus all accrued interest thereon, to
Buyer.
(f) Upon the consummation of the releases (and
recording, as applicable) described in paragraph (d) or (e) above, as
the case may be, this Agreement shall terminate, other than any
provisions expressly stated to survive the Closing or the termination
of this Agreement, and no party hereto shall have any further
obligations hereunder.
- 20 -
LA\1297612.4
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement in duplicate as of the day and year first above written.
SELLER: BUYER:
THE CITY OF VERNON
EONIS C. MA BURG, yor
ATTEST:
By ' It
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
By:
ERffFRESCHj City Attorney
- 21 -
MASTERFOODS USA
By:
JO CURTISS
ral Manager
171
r-Liicmut-,
LA\1297612.4
EXHIBIT "A"
LEGAL DESCRIPTION
OF THE PROPERTY
(To Be Provided By Seller)
A - 1
LA\1297612.4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT "A"
Legal Description of the Property located in the City of Vernon, County of Los Angeles, State of California
consisting of approximately 18,883 square feet.
Those portions of lots 26, 27, 28, 29, 30, 31 and 32 of Tract No. 6056, in the City of
Vernon, County of Los Angeles, State of California, as recorded in map book 74 at page
33 of maps in the office of the County Recorder of said county more particularly described
as follows:
Beginning at the southeast corner of said lot 26; thence North 00' 01' 30" West a distance
of 95.00 feet along the easterly line of said lot 26 to a point 5.00 feet South of the
northerly line of said lot 26; thence 0.30 feet North 89° 57' 30" West along a line parallel
and southerly 5.00 feet from the northerly line of said lot 26 to the beginning of a tangent
curve concave southerly and having a radius of 307.00 feet; thence southwesterly along
said curve through a central angle of 17' 00'52" a distance of 91.17 feet to a tangent line;
thence along said tangent line South 73' OF 38" West a distance of 241.63 feet; thence
South 44' 56' 42" West a distance of 15.24 feet to the southwest corner of said lot 32;
thence South 89' 57' 30" East a distance of 332.04 feet along the southerly lines of lots 32,
31, 30, 29, 28, 27 and 26 to the point of beginning. See Exhibit "A" consisting of one
sheet attached hereto and made a part hereof.
A - 1
4 �
r
rri
(FORMERLY_._ - - - _ -- _- tC-OA --AVE-.--VAGN ttAY
r:r t r
m
o
aaP
,`4y1
AFFIDAVIT OF POSTING NOTICE OF CONTINUANCE
OF PUBLIC HEARING
State of California )
County of Los Angeles )
City of Vernon )
AFFIDAVIT OF POSTING NOTICE OF
CONTINUANCE OF PUBLIC HEARING ON
THE VACATION OF A PORTION OF
PACKERS AVENUE FROM ALCOA AVENUE
TO DOWNEY ROAD
I, Gloria Molleda, declare as follows:
That I am the Deputy City Clerk of the City of
Vernon; that at a regular meeting of the City Council of
the City of Vernon held November 3, 2004, said public
hearing was opened and continued to the time and place
specified in the NOTICE OF CONTINUANCE attached hereto; and
that on November 9, 2004, a copy of said notice was posted
at a conspicuous place near the door at which said meeting
was held.
I declare under penalty of perjury that the
foregoing is true and correct.
Executed on November 9, 2004, at Vernon,
California.
GUA
G oria Molleda
Deputy City Clerk
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro—Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
Chief Executive Officer of
Light & Power
FAX: (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
ERIC T. FRESCH
City Attorney
FAX: (323) 826-1439
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
SOL BENUDIZ
Police Chief
FAX: (323) 826-1481
LEWIS J. POZZEBON
Director of Environmental Health
FAX: (323) 588-4320
NOTICE OF CONTINUANCE OF PUBLIC HEARING
It is hereby noted that on November 3, 2004, the City of Vernon City
Council Continued the Public Hearing regarding the proposed Vacation of Portion of
Packers Avenue.
The City of Vernon will continue the Public Hearing, which you may
attend.
Place: Vernon City Hall
4305 Santa Fe Avenue
Vernon, CA 90058
Date & Wednesday, November 17, 2004 at 5:00 p.m.
Time: (or as soon thereafter as the matter can be heard)
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
Chief Executive Officer of
Light & Power
FAX: (323) 826-1438
ERIC T. FRESCH
City Attorney
FAX: (323) 826-1439
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
SOL BENUDIZ
Police Chief
FAX: (323) 826-1481
CITY HALL LEWIS J. POZZEBON
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Director of Environmental Health
TELEPHONE (323) 583-8811 FAX: (323) 588-4320
November 9, 2004
Ms. Julia Davis, Escrow Officer
Major Accounts Division
Fidelity National Title
601 S. Figueroa St., Ste. 2130
Los Angeles, CA 90017
Re: Escrow No. 101193-JD
Seller: City of Vernon
Buyer: Masterfoods USA
Property: Vacant Land, Packers Avenue, Vernon
Dear Ms. Davis:
Enclosed please find for recording a Quitclaim Deed signed by the City
with respect to the above -referenced escrow.
If you have any questions respecting this matter, please do not hesitate
to contact me.
V ry truly yours,
Willard G. Y m g chi
Deputy City A orney
jl
Enclosure
RECORDING REQUESTED BY
CITY OF VERNON
AND WHEN RECORDED MAIL TO
NAME
City Clerk City of Vernon
ADDRESS
4305 Santa Fe Avenue
CITY
Vernon
STATE & ZIP
CA 90058
MAIL TAX STPTEMENTS TO
NAME
Masterfoods USA
ADDRESS
3250 E. 44th Street
CITY
Vernon, CA 90058
STATE & ZIP
Attn. Mark Sterba
Title Order No. Escrow No. 101193-JD
SPACE ABOVE THIS LINE FOR RECORDER'S USE
QUITCLAIM DEED
The undersigned grantor(s) declares(s) that the documentary transfer tax is and is
❑Computed on the full value of the interest or property conveyed, or is
❑Computed on the full value less the value of liens or encumbrances remaining at time of sale.
El Unincorporated area of: ❑ City of: and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged.
CITY OF VERNON, a municipal corporation
hereby REMISE(S), RELEASE(S) AND FOREVER QUITCLAIM(S) to
MASTERFOODS USA, a Mars Incorporated company
the following described real property in the City of Vernon
County of: Los Angeles
, State of: California
SEE LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT A AND MADE A PART HEREOF
Dated: November 8, 2004
STATE OF: CALIFORNIA
}SS
COUNTY OF: LOS ANGELES
On November 8, 2004 before me, the
undersigned, a Notary Public in and for State,
personally appeared
Bruce V. Malkenhorst
CITY OF VERNON
By:
Bruce V. Malkenhorst, City Administrator
personally known to me or proved to me on the basis of satisfactory evidence to be the person(t) whose
name(s) is/am subscribed to the within instrument and acknowledged to me that he/skaAkey executed the
same in hisfttaidthak authorized capacity(ies), and that by his/J=vMvWr signature(* on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, exe utvcLtthhe instrument.
WITNES y hand and official seal WbANUELAGi1ZoN 'C
Commission # 1328374
Notary Public - California
Los Angeles County [
n My Comm. tvin� Nov 4, 20M ■
Signature (This area for official notary seal)
MAIL TAX STATEMENTS AS DIRECTED ABOVE
EXHIBIT A
Those portions of lots 26, 27, 28, 29, 30, 31 and 32 of Tract No. 6056, in the City of
t Vernon, County of Los Angeles, State of California, as recorded in map book 74 at page 33 of maps
in the office of the County Recorder of said county more particularly described as follows:
Beginning at the southeast corner of said lot 26; thence North 00' 01' 30" West a distance
of 95.00 feet along the easterly line of said lot 26 to a point 5.00 feet South of the northerly line of
said lot 26; thence 0.30 feet North 89' 57' 30" West along a line parallel and southerly 5.00 feet
from the northerly line of said lot 26 to the beginning of a tangent curve concave southerly and
having a radius of 307.00 feet; thence southwesterly along said curve through a central angle of 17°
00'52" a distance of 91.17 feet to a tangent line; thence along said tangent line South 73' 01' 38"
West a distance of 241.63 feet; thence South 44' 56' 42" West a distance of 15.24 feet to the
southwest corner of said lot 32; thence South 89° 57' 30" East a distance of 332.04 feet along the
southerly lines of lots 32, 31, 30, 29, 28, 27 and 26 to the point of beginning. See Exhibit "1"
consisting of one sheet attached hereto and made a part hereof.
The area being quitclaimed contains approximately 18,883 square feet.
25'
46fh STREET
---------------�
I
I
I
C '
L------------------------
30,
c PACKERS AVE.
N
N Ofl-37'-30' W
A=fr o0'-52•
R=307'
L-91.17' / 0.3' N Off-57'-30' W
will
W�W40- 0410A
Pp,o/,o,r
w®rp
'Jor
j
VA
41
o
R'i'm
pa
--�,
ourol
u
.0
w
IENGICITY OF VERNON NEERING DEPARTMENT I SNEM oa
EXHIBIT ft1
Recording requested by and mail to:
City Clerk
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
SPACE ABOVE THIS LINE FOR RECORDER'S USE
QUITCLAIMDEED
The City of Vernon, a municipal corporation, hereby remises, releases and quitclaims to
Masterfoods USA, a Mars Incorporated company, the following described property in the City of
Vernon, County of Los Angeles, State of California:
Those portions of lots 26, 27, 28, 29, 30, 31 and 32 of Tract No. 6056, in the City of
Vernon, County of Los Angeles, State of California, as recorded in map book 74 at page 33 of maps
in the office of the County Recorder of said county more particularly described as follows:
Beginning at the southeast corner of said lot 26; thence North 00' 01' 30" West a distance
of 95.00 feet along the easterly line of said lot 26 to a point 5.00 feet South of the northerly line of
said lot 26; thence 0.30 feet North 89' 57' 30" West along a line parallel and southerly 5.00 feet
from the northerly line of said lot 26 to the beginning of a tangent curve concave southerly and
having a radius of 307.00 feet; thence southwesterly along said curve through a central angle of 17'
00'52" a distance of 91.17 feet to a tangent line; thence along said tangent line South 73' 01' 38"
West a distance of 241.63 feet; thence South 440 56' 42" West a distance of 15.24 feet to the
southwest corner of said lot 32; thence South 89' 57' 30" East a distance of 332.04 feet along the
southerly lines of lots 32, 31, 30, 29, 28, 27 and 26 to the point of beginning. See Exhibit "A"
consisting of one sheet attached hereto and made a part hereof.
The area being quitclaimed contains approximately 18,883 square feet.
CITY OF VERNON
LOW
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
By:
Eric T. Fresch, City Attorney
Leonis C. Malburg, Mayor
EXHIBIT "A"
J
i
NO SCALE
O<
W
j
jL
0
-------------------------------
o
PACKERS AVE.
!
i
N 89-57'-30" W
i
52' 3
30' 50' 50' 50'
25' i 30' o
'
o n
�30
5
— --- — — --- — ---
o S 32
31 30 2 63.
46th STREET
Z Z
----------------------� !
!
332.04' S 84-57'-30" E —
j
15.24' S 4,(- 56'-42" W
0
0!
o !
i
' o!
I i
I
p=1 Y-00'-52"
R=307'
L=91.17 0.3' N 89-57'-30" W
i------------
.O.B.
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
Chief Executive Officer of
Light & Power
FAX: (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
Latham & Watkins, LLP
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071-2007
Attn: Kim N.A. Boras
ERIC T. FRESCH
City Attorney
FAX: (323) 826-1439
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
September 20, 2004
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
SOL BENUDIZ
Police Chief
FAX: (323) 826-1481
LEWIS J. POZZEBON
Director of Environmental Health
FAX: (323) 588-4320
Re: Agreement to Purchase and Sell Real Estate and Escrow Instructions
Dear Mr. Boras:
Transmitted herewith is an original of the above referenced agreement
approved by the Vernon City Council on September 1, 2004.
If you have any questions regarding this matter, please call Mr. Eric
Fresch at (323) 583-8811 ext. 175.
Very truly yours,
bUl�
Gloria Molleda
Deputy City Clerk
CC: Eric Fresch
Kevin Wilson
Resolution No. 8524
Agreement No. 04-084
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
Chief Executive Officer of
Light & Power
FAX: (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583--8811
Latham & Watkins, LLP
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071-2007
Attn: Kim N.A. Boras
ERIC T. FRESCH
City Attorney
FAX: (323) 826-1439
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
September 22, 2004
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
SOL BENUDIZ
Police Chief
FAX: (323) 826-1481
LEWIS J. POZZEBON
Director of Environmental Health
FAX: (323) 588-4320
Re: Agreement to Purchase and Sell Real Estate and Escrow Instructions
Dear Mr. Boras:
On September 20, 2004, an original of the above referenced agreement
was mailed out to your attention. I was informed yesterday that two
original agreements should have been mailed instead of one.
Transmitted herewith is a second original agreement approved by the
Vernon City Council on September 1, 2004.
If you have any questions regarding this matter, please call Mr. Eric
Fresch at (323) 583-8811 ext. 175.
Very truly yours,
Gloria Molleda
Deputy City Clerk
CC: Eric Fresch
Kevin Wilson
Resolution No. 8524
Agreement No. 04-084
LATHAM&WATKINSLLP
September 15, 2004
VIA MESSENGER
Willard Yamaguchi, Esq.
City Attorney's Office
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058-0805
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
Tel: (213) 485-1234 Fax: (213) 891-8763
www.lw.com
FIRM / AFFILIATE OFFICES
Boston
New Jersey
Brussels
New York
Chicago
Northern Virginia
Frankfurt
Orange County
Hamburg
Paris
Hong Kong
San Diego
London
San Francisco
Los Angeles
Silicon Valley
Milan
Singapore
Moscow
Tokyo
Washington, D.C.
File No. 035006-0008
Re: Purchase and Sale Agreement Between The City of Vernon and Masterfoods
USA
Dear Willard:
In light of the City Council hearing scheduled this evening to put forward the vacation of
Packers Avenue, I wanted to get into your hands the three counterparts of the above -described
agreement as executed by Masterfoods. I am delivering these to you to obtain the City's
signature and then hold the counterparts in escrow pending your delivery to me of the legal
description of the property and my confirmation that the legal description matches the property
that Masterfoods intends to acquire. I will contact you to deliver such confirmation, at which
time the legal description can be attached as Exhibit A to each of the counterparts. Please then
send a fully executed counterpart to me and one to the escrow agent, and retain one fully
executed counterpart for the City's records.
Very truly yours,
Kim N. A. ora
of LATHAM & WATKINS LLP
Enclosures
cc (w/o encl, via email):
Mr. Mark Sterba
Donald P. Baker, Esq.
LA\1317579.1
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: January 4, 2005
TO: Nelly Giron, Deputy City Clerk
FROM: Willard G. Yamaguchi, Deputy City Attorney
RE: Escrow No. 101193-JD - Masterfoods Purchase of Property
Located Southeast of Packers Avenue and Alcoa Avenue
Dear Nelly:
Attached for your retention is an original letter amendment dated
December 16, 2004, respecting the above -referenced escrow.
The sale of the property was approved by Resolution No. 8524 on
September 1, 2004.
jl
Attachment
"„IIII Fidelity National Title Company
DECEMBER 30r 28, 2004
THE CITY OF VERNON
4305 SANTA FE AVENUE
VERNON, CA 90058
ATTN: WILLARD G. YAMAGUCHI
MASTERFOODS USA
3250 EAST 44TH STREET
VERNON, CA 90058
ATTN: MARK STERBA
LATHAM & WATKINS, LLP
633 WEST FIFTH STREET #40004
LOS ANGELES, CA 90071
ATTN: KIM N.A. BORAS, ESQ.
RE: ESCROW NO: 101 193-JD - VACANT LAND, PACKERS AVENUE, CITY OF VERNON
DEAR CLIENTS:
PLEASE FIND ENCLOSED:
ORIGINAL MASTER FOODS LETTER DATED DECEMBER 16, 2004, WHICH THE ALTA POLICY HA
BEEN CHANGED TO CLTA AND SIGNED BY ESCROW HOLDER.
IF YOU HAVE ANY QUESTIONS, OR IF WE CAN BE OF ANY ASSISTANCE, PLEASE CONTACT THE
UNDERSIGNED.
VERY TRULY YOURS,
JULIA DAVIS
VP / SR. ESCROW OFFICER
JD/MS
ENCL.
601 S. Figueroa Street, Suite 2130 • Los Angeles, CA 90017 • (213) 689-9301 • FAX (213) 689-9330
MasterfoodsuSX.
A Division of Mars, Incorporated
3250 East 441" Street Vernon, CA 90058
December 16, 2004
Fidelity National Title Company
601 S. Figueroa Street, Suite 2130
Los Angeles, California 90017
Attention: Julia Davis, VP and Senior Escrow Officer
The City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058-0805
Attention: Leonis Malburg, Mayor
Re: Fidelity National Title Company Escrow No. 101193-JD
Ladies and Gentlemen:
As you know, Masterfoods is in contract to acquire the "Triangle" property from The City of
Vernon (the "City") pursuant to that certain Agreement of Purchase and Sale and Joint Escrow
Instructions (hereinafter referred to as the "Agreement"; capitalized terms used but not defined herein
shall have the meaning ascribed thereto in the Agreement), dated September 16, 2004 between
Masterfoods and the City. The City has also authorized the vacation of Packers Street in the City
(excluding the easternmost 120 feet between Alcoa Avenue and Downey Road in the City; such portion
being vacated, the "Street"), pursuant to its Resolution No. 8570 (the "Resolution"), and is quitclaiming
the Street to Masterfoods in consideration of Masterfoods' payment to the City of $1,283,760 (the "Street
Purchase Price").
Subject to your agreement, this letter amends certain of the terms of the Agreement and the
escrow created thereunder (as amplified by the Conditions of Acceptance for Escrow No. 101193-JD
dated September 29, 2004) as follows:
(1) The Closing Date shall be December 23, 2004.
(2) Not later than one (1) business day prior the Closing Date, the City shall deliver to
Escrow Agent for recording (a) a duly executed and acknowledged Quitclaim Deed conveying the City's
interest in the Triangle property to Masterfoods (the "Triangle Quitclaim Deed"), (b) a duly executed and
acknowledged Quitclaim Deed conveying the City's interest in the Street to Masterfoods (the "Street
Quitclaim Deed"), and (c) an original certified Resolution.
(3) Not later than one (1) business day prior to the Closing Date, Masterfoods shall deposit
with Escrow Agent (a) the balance of the Purchase Price for the Triangle property, which, together with
the Earnest Money currently held by Escrow Agent, shall be released to the City immediately following
the recording of the Triangle Quitclaim Deed, (b) the Street Purchase Price, which shall be released to the
City immediately following the recording of the Street Quitclaim Deed and the Resolution, and (c) the
premium for an dLTA Owner's Policy of Title Insurance insuring the entirety of the Triangle property
and the Street in the policy amount of $1,661,420 (the "Owner Policy").
(4) Provided that Escrow Agent has timely received the Purchase Price and the Street
Purchase Price from Masterfoods and that Fidelity National Title Company is committed to issuing the
Owner Policy in a form reasonably acceptable to Masterfoods dated the Closing Date, Escrow Agent shall
record the Triangle Quitclaim Deed, the Resolution and the Street Quitclaim Deed, in that order, on the
Closing Date.
(5) Section 29 of the Agreement [Right to Unwind; Additional Escrow Instructions] is
deleted hereby from the Agreement and is of no further force or effect.
If you are in agreement with the foregoing amendments, please indicate such agreement by
countersigning this letter where indicated below and returning a copy of this letter, as so signed by you, to
Masterfoods via e-mail (mark.sterba@effem.com) or fax (323-586-8335).
Sincerely,
MASTERFOODS USA,
A MARS INCORPORATED COMPANY
By:
�jjjgLoe.
Jo Curtiss
s Manager
ACCEPTED, ACKNOWLEDGED AND AGREED:
THE CITY OF VERNON
By: �—
Bruce V. Malkenhorst
City Administrator
FIDELITY NATIONAL TITLE COMPANY
By:
N e: L, ey
Title:!
LA\ t 353492.3 �D