HomeMy WebLinkAbout2023-02-14 - AGENDA REPORTS - PROPTY ACQUISTION YMCA BLDGO
Agenda Item: 4
1. CITY OF SANTA CLARITA
AGENDA REPORT
NEW BUSINESS
CITY MANAGER APPROVAL: �1 A11�44-1)
DATE: February 14, 2023
SUBJECT: PROPERTY ACQUISITION AND LEASE AGREEMENT FOR YMCA
BUILDING
DEPARTMENT: Neighborhood Services
PRESENTER: Susan Nelson
RECOMMENDED ACTION
City Council:
Approve a Donation Agreement with the YMCA for the transfer of ownership of the building
located at 26147 McBean Parkway, at no cost to the City.
2. Amend the Lease Agreement between the YMCA and the Summit Homeowners Association,
removing the YMCA as the tenant and naming the City of Santa Clarita the tenant for the
duration of the lease.
3. Authorize the City Manager or designee to execute all documents, subject to final language
approval by the City Manager and City Attorney.
BACKGROUND
Since 1988, the Young Men's Christian Association of Metropolitan Los Angeles (YMCA) has
operated in their building (Building) located on property leased by the Valencia Summit
Homeowners Association (HOA). In 2016, the YMCA announced plans to close the Building
and focus their efforts on construction of a new facility adjacent to the new Senior Center, Bella
Vida, located off of Golden Valley Road. In March of 2020, the Building closed due to the
pandemic and reopened briefly before closing to the public permanently.
Last year, representatives of the YMCA approached the City of Santa Clarita (City) to inquire
about the City's interest in purchasing the Building. The 12,000 square foot facility has space for
offices, childcare, and group exercise. In the center of the Building is a 41/z foot deep indoor pool,
which was designed to accommodate learn -to -swim and water exercise programs.
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The YMCA has a zero -dollar, renewable 50-year lease with the HOA for use of the property
where the Building is located, which began on March 24, 1986. The building was subsequently
constructed in 1988. The lease stipulates that the premises are to be used for supervised
recreation, and activities and programs for the public, such as swimming lessons, exercise
classes, child care, educational seminars, arts and crafts classes, and community meetings.
Further, the property is zoned Open Space.
Anal
Since being approached by the YMCA, City staff has visited the Building on several occasions to
determine the feasibility of implementing recreational programs at the site and to assess the
condition of the Building, the pool, and associated equipment. Staff has determined that while
improvements to the Building are needed, it is a location that could support the expansion of the
City's Primetime Preschool program and serve as the central hub for Contract Classes. Based on
staffs evaluation of the building, initial repairs upwards of $1,000,000 would be brought to
Council for consideration as part of the Capital Budget process for Fiscal Year 2023-24.
The YMCA initially asked the City to purchase the Building; however, the amount and cost of
needed repairs and the restrictions in the lease constrain the site, and ultimately, the value of the
facility. The City and representatives of the YMCA have negotiated terms where the City accepts
ownership of the Building at no cost, and assumes the role of "Tenant" in the lease with the
HOA.
Because the Building is being donated to the City by the YMCA, the City did not pay for a
formal property appraisal. The YMCA has reviewed the property details and determined the
value of the lease and facility to be approximately $2,017,000.
Potential Prope . Use
There is currently no City -owned recreational building of this size on the west side of the City.
The nearest reservable community room is located at Old Orchard Park, which is only 627
square feet.
City staff envisions the primary activities at the Building will be Primetime Preschool, Contract
Classes, Aquatics Programs, and Camp Clarita. Each of these programs currently waitlisted and
in high demand have the ability to generate revenue, offsetting some of the ongoing costs
associated with operating the Building.
Due Diligence
Staff has met with the Board of the HOA to determine if they would be supportive of the City
assuming ownership of the Building and replacing the YMCA as the tenant on the lease. Overall,
the Board supported the idea of the City becoming the owner of the Building, especially given
that the City currently maintains Valencia Summit Park. The HOA Board has approved the draft
lease amendment, which is attached. City staff has also received verbal agreement from the
YMCA on the draft donation agreement, attached as reading file, which would transfer
ownership of the Building to the City at no cost.
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Environmental Review
The proposed acquisition has been reviewed pursuant to the California Environmental Quality
Act (CEQA) and the acquisition is exempt under CEQA Section 15301 Class 1, Section 15316
Class 16, and Section 15323 Class 23. A Notice of Exemption has been prepared and any
subsequent or proposed changes in the use or condition of the property will be subject to CEQA
guidelines.
ALTERNATIVE ACTION
Other action as determined by the City Council.
FISCAL IMPACT
There is no fiscal impact as a result of this action. Staff will return to the City Council with
detailed estimates associated with the one-time cost of renovations, the ongoing cost to operate
and maintain the building, and the ongoing revenue to be generated by activities at the location.
ATTACHMENTS
Site Plan
Third Amendment to Lease
YMCA Donation Agreement Document Including Exhibit (available in the City Clerk's Reading
File)
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Santa Clarita
23920 Valencia Boulevard, Suite 120
Santa Clarita, California 91355
Attention: City Clerk
FEE EXEMPT GOVT. CODE 6103 & 27383
[Space Above this Line for Recorder's Use]
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This Third Amendment to Lease (the "Amendment") is made as of
, 20_, by and between THE VALENCIA SUMMIT
HOMEOWNERS ASSOCIATION, a California nonprofit corporation ("Landlord") and
the CITY OF SANTA CLARITA, a municipal corporation ("Tenant"), who agree as
follows:
1. Recitals. This Amendment is made with reference to the following facts and
circumstances:
(a) Landlord and YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES, a California nonprofit corporation, formerly known as
Young Men's Christian Association ("YMCA"), were parties to that certain Lease dated
as of March 24, 1986, and recorded September 23, 1987 in the Official Records of Los
Angeles County, California (the "Official Records"), as Instrument No. 1987-1521895
(as the same was amended by that certain document(s) recorded September 23, 1987,
in the Official Records as Instrument No. 1987-1521896 (the "First Amendment"), as
further amended by that certain document(s) recorded December 4, 1987, in the Official
Records as Instrument No. 1987-1916363 (the "Second Amendment", and together
with the First Amendment, collectively, the "Lease"), regarding that certain premises
located at 26147 McBean Pkwy, Santa Clarita, California, legally described on the
attached Exhibit A (the "Premises").
(b) Pursuant to an Assignment and Assumption Agreement made and
effective as of , 20_ (the "Assignment"), YMCA has assigned to
Tenant all of YMCA's right, title and interest in, to and under the Lease, and Landlord
has consented to such assignment.
(c) Landlord and Tenant now desire to make certain amendments to the
Lease, all as more particularly provided in this Amendment.
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2. Amendments to Lease. Landlord and Tenant agree as follows:
(a) The "Facility" as defined in Section 2 of the Lease has been constructed
and completed in accordance with the terms of the Lease, and until the Premises are
surrendered to Landlord at the expiration or earlier termination of the Lease, title to and
ownership of the Facility and all other buildings and improvements, and any additions or
replacement thereto, now or hereafter located on the Premises are vested in Tenant.
Tenant shall have the right to construct additional buildings and improvements on the
Premises, subject to the provisions of Section 5 of this Lease.
(b) All references in Section 2 of the Lease to "YMCA" are changed to be
references to "Tenant", and the reference in Section 2 to "YMCA's Board of Managers"
is changed to be a reference to "Tenant's governing body."
(c) The following is hereby added to the end of paragraphs A and B located
on page 11 of Section 11 of the Lease: "and its and their successors and assigns."
(d) Tenant's notice address as set forth in Section 13 of the Lease is
amended to read as follows:
"City of Santa Clarita
23920 Valencia Boulevard, Suite 120
Santa Clarita, California 91355
Attention: City Clerk"
(e) The first sentence of Section 18 is revised to read as follows":
"If either party hereto shall be delayed or prevented from the performance
of any act required hereunder by reason of any cause not the fault of the
obligated party and beyond the reasonable control of the obligated party
(financial inability excepted), including, without limitation, by reason of acts
of God, restrictive governmental laws or regulations, labor or material
shortages, strikes, lockouts, fires, epidemics or pandemics, then
performance of such act shall be excused for the period of the delay; and
the period for performance of such act shall be extended for a period
equivalent to the period of such delay."
(f) Section 24A of the Lease is amended to read as follows"
"Tenant shall be deemed to be in default under the terms of this Lease if
Tenant shall fail to promptly perform or observe any covenant, condition or
agreement to be performed by Tenant under this Lease, and such failure
shall continue for a period of ninety (90) days after Tenant's receipt of
written notice from Landlord to Tenant specifying the nature of such
failure; provided, however, that if the nature of such failure is such that
more than ninety (90) days are reasonably necessary for its cure, then
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Tenant will not be in default under this Lease so long as Tenant
commences to cure such failure within such ninety (90) day period and
thereafter prosecutes such cure to completion with reasonable diligence."
(g) A new Section 28 is added to read as follows:
"28. QUIET ENJOYMENT. Landlord covenants with Tenant that,
subject to the terms and provisions of this Lease, Tenant will be entitled to
peaceably and quietly enjoy the Premises and all rights and
appurtenances thereto during the term of this Lease, without molestation
or hindrance of any person whomsoever."
(h) A new Section 29 is added to read as follows"
"29. Right of First Refusal. The Landlord agrees that it will not at
any time sell the Premises unless Landlord first has given written notice to
Tenant of its intention to do so (the "Notice of Intended Sale") and shall
otherwise have complied with the terms and provisions of this Section 29.
The Notice of Intended Sale must set forth (i) a detailed statement of the
terms, including price and method of payment, relating to the proposed
sale, and (iii) the name and address of the purchaser(s) to which the sale
is to be made. Upon receipt by Tenant of the Notice of Intended Sale,
Tenant will have the right to purchase the Premises at the price and on the
terms set forth in the Notice of Intended Sale. Tenant's right shall be
exercisable by written notice of exercise (the "Exercise Notice") given to
Landlord within thirty (30) days following Tenant's receipt of the Notice of
Intended Sale. If Tenant does not give the Exercise Notice within that
thirty (30) day period, Landlord may sell of the Premises to the proposed
purchaser(s) identified in the Notice of Intended Sale on the terms set
forth therein, provided that such sale is bona fide and consummated within
ninety (90) days of the date of the Notice of Intended Sale. If the sale is
not consummated within that ninety (90) day period, all of the restrictions
provided for in this Section 29 will again become effective with respect to
the Premises. The closing with respect to the Premises as to which
Tenant has given an Exercise Notice is to take place within ninety (90)
days following the giving of the Exercise Notice, or at such earlier or later
time as Tenant and Landlord may agree upon. Any sale of the Premises
by Landlord in violation of this Section 29 will be null and void and of no
effect."
3. Miscellaneous. Except as amended hereby, the Lease remains unmodified and
in full force and effect.
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The parties have caused this Amendment to be duly executed by their respective
duly authorized officers or representatives as of the date first set forth above.
THE VALENCIAL SUMMIT CITY OF SANTA CLARITA
HOMEOWNERS ASSOCIATION
la
(Print Name & Title)
(Print Name & Title)
[SIGNATURES MUST BE NOTARIZED]
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
(Seal)
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
) ss
County of Los Angeles )
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
(Seal)
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DONATION AGREEMENT
THIS DONATION AGREEMENT (this "Agreement") is made and entered into as of
, 2023 (the "Effective Date") by and between YOUNG MEN'S CHRISTIAN
ASSOCIATION OF METROPOLITAN LOS ANGELES, a California nonprofit corporation,
formerly known as Young Men's Christian Association ("Donor"), and the CITY OF SANTA
CLARITA, a body corporate and politic ("City"). Each of City and Donor are occasionally referred
to herein as a "Party" and collectively as the "Parties."
RECITALS
A. Donor is party to that certain Lease dated as of March 24, 1986, and recorded
September 23, 1987 in the Official Records of Los Angeles County, California (the "Official
Records"), as Instrument No. 1987-1521895 (as the same was amended by that certain
document(s) recorded September 23, 1987, in the Official Records as Instrument No. 1987-
1521896, as further amended by that certain document(s) recorded December 4, 1987, in the
Official Records as Instrument No. 1987-1916363, as the same may have been further amended
and assigned, the "Lease"), pursuant to which Donor leases that certain premises located at
26147 McBean Pkwy, Santa Clarita, California, legally described on Exhibit A attached hereto
(the "Land"), together with buildings and improvements located thereon (the "Improvements"),
all in accordance with the terms of the Lease.
B. Donor desires to donate to City, and City desires to accept from Donor, all of
Donor's right, title and interest in and to the Lease and the Improvements, all on the terms and
conditions stated herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter
set forth, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by City and Donor, each intending to be legally bound, do hereby
covenant and agree as follows:
1. Donation and Acceptance of the Property. Donor agrees to sell and convey to
City, and City agrees to purchase and accept from Donor, upon the terms, provisions and
conditions set forth in this Agreement, all of Donor's right, title and interest in and to the following
items (collectively, the "Property"):
(a) all of Donor's right, title and interest in and to the Lease and the leasehold
created thereby;
(b) any and all improvements and fixtures located on the Land and constructed
by or on behalf of Donor, including but not limited to, the building constructed by Donor on the
Land (collectively, the "Improvements");
(c) all rights, privileges, easements, appurtenances, and other estates
pertaining or appurtenant to the Land (as defined in the Lease) (collectively, the "Appurtenances"
and together with the Improvements, the "Real Property");
(d) all machinery, equipment, and fixtures affixed to and used for the operation
of the Real Property (the "Personal Property");
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(e) to the extent assignable, any intangible property used and/or necessary in
connection with the Real Property under the Lease, including, without limitation, any warranties,
guaranties, licenses, permits, entitlements, governmental approvals and certificates of occupancy
which benefit the Real Property, all surveys, reports, plans, specifications, drawings, appraisals,
reports and studies (collectively, the "Intangible Property").
The transactions contemplated by this Agreement are collectively referred to herein as
the "Donation Transaction."
2. No Consideration. The Parties agree that since the Property is being donated to
the City by the Donor, no monetary consideration is being paid by the City to the Donor in
connection therewith.
3. Condition of Property. City acknowledges and agrees that, as of the Closing,
City will have performed and completed a full investigation of the Property, and all components
thereof, and will have satisfied itself with respect to the condition of the Property.
4. Prorations and Apportionments.
(a) Taxes and Property Charges. Except as otherwise set forth below, the
following shall be prorated and apportioned between Donor and City as of 11:59 p.m. (Pacific
Time) on the day preceding the Closing Date, and all prorations shall be done on the basis of a
three hundred sixty-five (365) day year and the actual number of days elapsed to the Closing
Date or the actual number of days in the month in which the Closing occurs and the actual number
of days elapsed in such month to the Closing Date, as applicable.
(i) All real estate taxes and assessments on the Property payable in
respect to the current fiscal year of the applicable taxing authority in which the Closing Date occurs
(the "Current Tax Year"). Such real estate taxes and assessments shall be prorated on a per
diem basis based upon the number of days in the Current Tax Year prior to the Closing Date
(which shall be allocated to Donor) and the number of days in the Current Tax Year on and after
the Closing Date (which shall be allocated to City ). Donor shall be responsible for all real estate
taxes and assessments on the Property payable in respect to periods prior to the Current Tax
Year. Any taxes which have been prepaid by Donor shall not be prorated, but Donor shall have
the sole right after Closing to apply to the Los Angeles County Treasurer for refund of the taxes
attributable to the period after acquisition, pursuant to Revenue and Taxation Code Section
5096.7. Upon the Closing Date and subject to the adjustment provided for above, City shall be
responsible for all unpaid real estate taxes and assessments on the Property payable in respect
to the Current Tax Year, including any escape assessments occasioned by the Donation
Transaction contemplated by this Agreement, and all periods after the Current Tax Year.
(ii) Gas, water, electricity, heat, fuel, sewer and other utilities and the
operating expenses relating to the Real Property (expressly excluding, however, any amounts
paid as deposits to any utility provider, all of which shall be returned to Donor). Donor shall use
reasonable efforts to cause any applicable utility meters to be read on the day prior to the Closing
Date and will be responsible for the cost of any applicable utilities used prior to the Closing Date.
If the meters are not read as herein set forth, all such expenses shall be prorated.
(iii) Such other items as are customarily apportioned between donors
and donees of real property and improvements located in Los Angeles County, California.
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(b) Escrow and Title Charges. The following costs and expenses shall be
paid as follows:
(i) Donor shall pay (i) one-half (1/2) of the fees and charges of Escrow
Holder, (ii) the cost of the premium for the CLTA Standard Coverage portion of the Title Policy
and the cost of any endorsements to the Title Policy requested in writing by Donor in order to
remove Disapproved Exceptions, and (iii) all sales, documentary, or other local transfer taxes, if
any, on the transfer of the Property. If the Escrow shall fail to close for any reason other than
City's default, Donor shall pay one-half (1/2) of any applicable Escrow cancellation charges.
(ii) City shall pay (i) one-half (1/2) of the fees and charges of Escrow
Holder, (ii) the cost of the premium for the Title Policy in excess of the premium for a CLTA
Standard Coverage policy, if any, (iii) the cost of all endorsements to the Title Policy requested
by City and not payable by Donor under Section 4(b)(i) above, and (iv) all costs and charges for
the recordation of the Lease Assignment and the Deed. If the Escrow shall fail to close for any
reason other than Donor's default, City shall pay one-half (1/2) of any applicable Escrow
cancellation charges.
5. Closing Deliveries; Opening and Closing of Escrow.
(a) Closing Date. For purposes of this Agreement, the "Close of Escrow" or
"Closing" shall be the date that the Lease Assignment (defined below) is recorded in the Official
Records of the Los Angeles County Recorder's Office and all the Parties' conditions to Closing
have been waived in writing or satisfied. The Close of Escrow shall occur on or before (i) the date
that is ten (10) Business Days following the Disapproval Notice Deadline, if City does not deliver
notice of any Disapproved Matters, or (ii) the date that is ten (10) Business Days following Donor's
receipt of a City Notice to Proceed, if City does deliver notice of Disapproved Matters and Donor
elects (or is deemed to have elected) not to cure any of such Disapproved Matters, or (iii) the date
that is ten (10) Business Days following the cure of the Disapproved Matters selected for cure by
Donor, if Donor does elect to cure such Disapproved matters, or at such other date as is mutually
agreed upon in writing by the Parties (the "Closing Date"). Notwithstanding the foregoing or
anything else to the contrary contained in this Agreement, in the event the Closing Date has not
occurred on or before the date that is sixty (60) days following the expiration of the Feasibility
Period, this Agreement shall automatically terminate as of such date, in which case both City
and Donor will be relieved of all further obligation and liability to each other under this
Agreement, except for such as have accrued prior to the date of termination, and all the
funds and documents deposited with Escrow Holder shall be promptly refunded or
returned, as the case may be, by Escrow Holder to the depositing party.
(b) Donor's Closing Deliveries. At least two (2) Business Days prior to the
Closing Date, Donor shall execute, acknowledge and/or deliver, as applicable, the following items
to Escrow Holder, as defined below (collectively, the "Donor's Deliveries"):
(i) Two (2) originals of an assignment and assumption of the Lease in
the form of Exhibit B attached hereto (the "Lease Assignment"), duly completed, notarized and
executed by Donor;
(ii) Two (2) originals of a quitclaim deed in the form of Exhibit C
attached hereto (the "Deed"), duly completed, notarized and executed by Donor;
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(iii) An Estoppel Certificate in the form of Exhibit D hereto (the
"Estoppel Certificate");
(iv) A bill of sale in the form of Exhibit E attached hereto (the "Bill of
Sale"), duly completed and executed by Donor;
(v) An assignment and assumption in the form of Exhibit F attached
hereto ("General Assignment"), duly completed and executed by Donor;
(vi) A Certificate of Non -Foreign Status in the form of Exhibit G attached
hereto ("FIRPTA"), duly completed and executed by Donor; and
(vii) A California FTB Form 593 ("Form 593"), duly completed and
executed by Donor.
(viii) Donor's share of any prorations and expenses as provided in
Section 4.
(c) City's Closing Deliveries. At least two (2) Business Days prior to the
Closing Date, City shall execute, acknowledge and/or deliver, as applicable, the following items
to Escrow Holder (collectively, the "City's Deliveries"):
(i) City's share of any prorations and expenses as provided in Section
0
(ii) Two (2) originals of the Lease Assignment, duly completed,
notarized and executed by City;
(iii) One (1) original of the Third Amendment (as defined in Section 8(f)),
duly completed, notarized and executed by the City and the Landlord (as defined in Section 8(f));
and
(iv) The General Assignment, duly completed and executed by City.
(d) Opening of Escrow. Promptly after the Effective Date, an escrow (the
"Escrow") shall be opened with First American Title Insurance Company (the "Escrow Holder"),
777 South Figueroa Street, Suite 400, Los Angeles, CA, Attn: Maurice Neri, Tel: (213) 271-1737,
Email: mneri@firstam.com (the "Opening of Escrow"). Escrow Holder is to inform each of the
Parties of the date of the Opening of Escrow. Upon the Opening of Escrow, the Parties shall
deposit a fully executed copy of this Agreement with Escrow Holder and this Agreement shall
serve as the instructions to Escrow Holder for consummation of the Donor Transactions
contemplated by this Agreement. Donor and City agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable Escrow Holder to comply
with the terms of this Agreement; provided, however, that in the event of any conflict between the
terms and provisions of this Agreement and the terms and provisions of any supplementary
escrow instructions, the terms and provisions of this Agreement shall control.
(e) Closing of Escrow.
(i) Escrow Holder is hereby authorized to record the documents and
disburse the funds, if any, and distribute the documents called for hereunder as provided in
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Sections 5(b) and 5(c) upon the Close of Escrow, provided each of the following conditions has
then been fulfilled:
(A) First American Title Insurance Company, 777 South
Figueroa Street, Suite 400, Los Angeles, CA, Attn: Sean Cruz, Tel: (213) 271-1689, Email:
secruz@firstam.com (the "Title Company") is irrevocably committed to issue in favor of the City
CLTA (or at City's election, an ALTA, provided that extended coverage shall not be a condition to
Closing) Leasehold Policy of Title Insurance (the "Title Policy"), with a liability coverage in the
amount of $2,206,083 ("Coverage Amount") in a form reasonably approved by City.
(B) Escrow Holder shall have received City's authorization to
close;
(C) Escrow Holder shall have received Donor's authorization to
close; and
(D) Donor and City shall have deposited in Escrow the
documents and funds, if any, required pursuant to Sections 5(b) and 5(c).
(ii) In the event the Closing occurs, on the Closing Date Escrow Holder
is to Close Escrow as follows:
(A) Record the Lease Assignment (marked for return to City)
with the Los Angeles County Recorder (which will be deemed to be delivery to City), with a
conformed copy to be delivered to Donor and City when available;
(B) Record the Deed (marked for return to City) with the Los
Angeles County Recorder (which will be deemed to be delivery to City), with a conformed copy to
be delivered to Donor and City when available;
(C) Record the Third Amendment (marked for return to the City)
with the Los Angeles County Recorded, with a conformed copy to be delivered to the City when
available.
(D) Deliver the Bill of Sale, Estoppel Certificate, General
Assignment, FIRPTA, and Form 593 to City, with a copy of all such documents to be provided to
Donor;
(E) Cause the Title Policy to be issued;
(F) Prorate and apportion costs and expenses as provided in Section 4;
(G) Charge Donor and City, respectively, for those costs and
expenses to be paid by them pursuant to Section 4(b) of this Agreement and disburse any net
funds remaining after the preceding disbursements to the Party having deposited the same;
(H) Prepare and deliver to both Donor and City one signed copy
of Escrow Holder's closing statement showing all receipts and disbursements of the Escrow.
If Escrow Holder is unable to simultaneously perform all of the
instructions set forth above, Escrow Holder is to notify Donor and City and retain all funds and
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documents pending receipt of further instructions jointly issued by Donor and City, and if no such
instructions are delivered within five (5) Business Days of such notification, Escrow Holder is to
return all documents and funds to the party that deposited same.
(f) Business Day. As use in this Agreement, "Business Day" means any
calendar day, other than a Saturday, Sunday, or day observed by the federal government or the
State of California as a legal holiday.
6. Title and Inspections.
(a) Donor shall cause First American Title Company, 777 South Figueroa Street, Suite
400, Los Angeles, CA 90017 (the "Title Company"), Attn.: Sean Cruz, 213-271-1689 to issue
and deliver to City (with a copy to Donor) a preliminary report (the "Preliminary Report") for a
CLTA Leasehold Policy of Title Insurance for the Lease, with hyperlink access to all documents
relating to title exceptions referred to in the Preliminary Report. City shall approve or disapprove
each exception shown in the Preliminary Report (each an "Exception") within twenty (20) days
following the receipt of the Preliminary Report, all documents relating to title exceptions referred
to in the Preliminary Report and any amendments or updates of the Preliminary Report; except
that City will not have the right to object and will accept title subject to the lien of property taxes
not yet due (the "Deemed Approved Exceptions"). City's failure to given written notice of
objection within the twenty (20) day period shall be deemed to be an approval of the Exceptions.
If any Exception is timely disapproved in writing (each a "Disapproved Exception"), Donor shall,
within five (5) Business Days following receipt of such disapproval, notify City in writing as to
whether or not Donor will, at Donor's sole cost and expense, cause each Disapproved Exception
to be discharged, satisfied, released, or terminated. Any failure by Donor to deliver such
notification within such five (5) business day period shall be deemed an election by Donor not to
cure such Disapproved Exception(s). If Donor elects (or is deemed to have elected) to not cure
any Disapproved Exception(s), then, by notice delivered to Donor within five (5) Business Days
after such election (or deemed election), City shall elect to do either of the following:
(i) Waive the Disapproved Exception and proceed with Closing, accepting the
Lease and Property subject to the Disapproved Exception, in which case such Disapproved
Exceptions will be deemed to be deemed to be Deemed Approved Exceptions, or
(ii) Terminate this Agreement, in which case both Donor and City will be
relieved of all further obligation and liability to each other under this Agreement, except for such
as have accrued prior to the date of termination, and all the funds and documents deposited with
Escrow Holder shall be promptly refunded or returned, as the case may be, by Escrow Holder to
the depositing party.
Any failure by City to deliver such written election within such five (5) business day period shall
be deemed an election by City to proceed in accordance with clause (ii) above.
(b) During the period commencing with the Effective Date and terminating thirty (30)
days thereafter (the "Feasibility Period"), City may undertake at City's expense all due diligence
inspections, investigations and reviews of the Property, including, but not limited to, the physical
condition of the Property, an appraisal of the value of the Property, an inspection and examination
of soils, environmental factors, geotechnical factors, and Hazardous Substances, if any, relating
to the Property; provided however, notwithstanding the foregoing, City and City's representatives
shall (i) not unreasonably disturb or interfere with the operation, management or use of the
Property by Donor, (ii) not drill or bore on or through the surface of the Land or Improvements, or
OMM US:80436206.9 6
conduct any other invasive investigation, including, without limitation, conducting a "Phase II"
environmental assessment, without Donor's prior written consent, which consent may be given or
withheld in Donor's sole and absolute discretion, and (iii) comply with all applicable laws, rules
and regulations. Any environmental analysis of the Property involving any sampling of materials
collected from or at the Property shall be subject to prior approval by Donor, which approval may
be granted or withheld in Donor's sole discretion. If, during the Feasibility Period, Donor refuses
to permit City to conduct an inspection requested by City and which inspection requires Donor's
consent under this Agreement, then City may elect, at City's sole discretion, by written notice
delivered to Donor prior to the expiration of the Feasibility Period, to terminate this Agreement, in
which case both City and Donor will be relieved of all further obligation and liability to each other
under this Agreement, except for such as have accrued prior to the date of termination, and all
the funds and documents deposited with Escrow Holder shall be promptly refunded or returned,
as the case may be, by Escrow Holder to the depositing party. If City fails to deliver such notice
prior to the expiration of the Feasibility Period, then City shall be deemed to have waived its right
to terminate this Agreement as a result of Donor's refusal to permit the applicable inspection.
Furthermore, if City disapproves of any of the results of its inspection, investigation and review,
City shall, on or before the date that is three (3) Business Days following the end of the Feasibility
Period (such date, the "Disapproval Notice Deadline"), give Donor written notice specifying in
reasonable detail those matters which are disapproved by City ("Disapproved Matters"). Donor
shall have three (3) Business Days following the receipt of City's written notice in which to give
City written notice that Donor will either (1) cure or remedy, prior to the Closing Date, some or all
of the Disapproved Matters specified in City's notice or (2) that Donor will not cure or remedy any
of the Disapproved Matters specified in City's notice. Donor's failure to give such written notice
within said three (3) Business Day time period will be deemed to be Donor's election not to cure
or remedy any of the Disapproved Matters. Within ten (10) days following City's receipt of Donor's
written notice or within ten (10) days following Donor's failure to give such notice, City may elect
in writing, at the City's sole discretion, to either (i) accept the Property subject to those
Disapproved Matters which Donor will not cure or remedy (such notification, a "City Notice to
Proceed") or (ii) terminate this Agreement, in which case both City and Donor will be relieved of
all further obligation and liability to each other under this Agreement, except for such as have
accrued prior to the date of termination, and all the funds and documents deposited with Escrow
Holder shall be promptly refunded or returned, as the case may be, by Escrow Holder to the
depositing party.
(c) Access to the Property during the Feasibility Period shall be given to City and its
authorized representatives upon one (1) Business Day's prior notice to Donor. City agrees to
indemnify and defend Donor against and hold Donor harmless from all losses, costs, damages,
liabilities, and expenses, including reasonable attorney fees, arising in connection with City's or
its authorized representatives' access, inspection, investigation or review of the Property. City
agrees to restore the Property to its original condition should it damage or otherwise alter the
physical condition of the Property. The terms of this Section 6(c) shall survive and termination of
this Agreement.
7. Representations, Warranties, Covenants and Acknowledgments.
(a) Donor Representations and Warranties. Donor represents and warrants
to City, as follows:
(i) Donor is a duly formed and validly existing nonprofit corporation
organized in the State of California and in good standing under the laws of the State of California,
and is qualified to do business in the State of California. The individual(s) signing this Agreement,
OMM US:80436206.9 7
and all of the instruments referenced herein, on behalf of Donor is, or are, authorized to execute
this Agreement, and such instruments, and to bind Donor to the terms and conditions contained
herein and therein.
(ii) Donor has the full power and authority to enter into and comply with
the terms of this Agreement and has, or at Closing will have, obtained all necessary consents and
approvals required for Donor to enter into and consummate the Donation Transaction.
(iii) This Agreement, the Lease Assignment, the Deed and all
instruments referenced herein to be executed by Donor in connection with the Donation
Transaction, are, or at the time of Closing will be, duly authorized, executed and delivered by
Donor, and are, or at Closing will be, legal, valid and binding obligations of Donor, enforceable
against Donor in accordance with their respective terms (except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium and similar laws of general application
affecting the rights of creditors and by equitable principles), and do not, and at the time of Closing
will not, violate any provisions of any agreement or judicial order to which Donor is a party or to
which Donor is subject.
(iv) The execution and delivery of this Agreement, and consummation
of the Donation Transaction, will not, to Donor's actual knowledge, constitute a default under any
contract or agreement to which Donor is a party.
(v) The acts of Donor's directors, members, managers, officers,
employees, agents, attorneys, affiliates, lenders, consultants and contractors who sign this
Agreement, and all instruments referenced herein to be executed by Donor in connection with the
Donation Transaction, or perform any obligation of Donor hereunder or thereunder, and the
transactions contemplated hereby and thereby, have been duly authorized by all requisite action
on the part of Donor.
(vi) To Donor's actual knowledge, Donor is in compliance with the
requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the "Order")
and other similar requirements contained in the rules and regulations of the office of Foreign
Assets Control, Department of the Treasury ("OFAC") and in any enabling legislation or other
Executive Orders or regulations in respect thereof (the Order and such other rules, regulations,
legislation, or orders are collectively called the "Orders").
(vii) Neither Donor, nor to Donor's actual knowledge, any beneficial
owner of Donor (a) is listed on the Specially Designated Nationals and Blocked Persons List
maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist
organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any
other applicable Orders (such lists are collectively referred to as the "Lists") or (b) is a person who
has been determined by competent authority to be subject to the prohibitions contained in the
Orders; or (c) is owned or controlled by, or acts for or on behalf of, any person on the Lists or any
other person who has been determined by competent authority to be subject to the prohibitions
contained in the Orders.
(viii) Donor is the owner of the Improvements, Personal Property and
Intangible Property, and the Improvements, Personal Property and Intangible Property will be
transferred to City free from all liens, claims and encumbrances, except for the Lease and the
Deemed Approved Exceptions.
OMM US:80436206.9 8
As used herein, the term "Donor's actual knowledge" means the current, actual and personal
knowledge of (and only of) Mark Dengler, Chief Operating Officer and Executive Vice President
of Donor, and does not include knowledge imputed to Donor from any other person or entity. The
named individual is acting for and on behalf of Donor and in a capacity as an officer or employee
of Donor or one or more of Donor's affiliates and is in no manner expressly or impliedly making
any representations or warranties in an individual capacity. City waives any right to sue or to seek
any personal judgment or claim against the named individual.
(b) City Representations and Warranties. City warrants and represents to
Donor, as follows:
(i) City is a body politic and corporate.
(ii) City has the full power and authority to enter into and comply with
the terms of this Agreement and has, or at Closing will have, obtained all necessary consents and
approvals required for City to enter into and consummate the Donation Transaction.
(iii) This Agreement, the Lease Assignment and all instruments
referenced herein to be executed by City in connection with the Donation Transaction, are, or at
the time of Closing will be, duly authorized, executed and delivered by City, and are, or at Closing
will be, legal, valid and binding obligations of City, enforceable against City in accordance with
their respective terms (except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application affecting the rights of creditors
and by equitable principles), and do not, and at the time of Closing will not, violate any provisions
of any agreement or judicial order to which City is a party or to which City is subject.
(iv) The execution and delivery of this Agreement, and consummation
of the Donation Transaction, will not, to City's actual knowledge, constitute a default under any
contract or agreement to which City is a party.
(v) The acts of City's directors, members, managers, officers,
employees, agents, attorneys, affiliates, lenders, consultants and contractors who sign this
Agreement, and all instruments referenced herein to be executed by City in connection with the
Donation Transaction, or perform any obligation of City hereunder or thereunder, and the
transactions contemplated hereby and thereby, have been duly authorized by all requisite action
on the part of City.
(vi) The City is exempt from documentary transfer tax pursuant to
California Revenue & Tax Code Section 11922.
As used herein, the term "City's actual knowledge" means the current, actual and personal
knowledge of (and only of) the current City Manager of the City, and does not include knowledge
imputed to City from any other person or entity. The named individual is acting for and on behalf
of City and in a capacity as an employee of City and is in no manner expressly or impliedly making
any representations or warranties in an individual capacity. Donor waives any right to sue or to
seek any personal judgment or claim against the named individual.
8. City's Conditions. For the benefit of the City, the Close of Escrow and City's
obligation to consummate the Donation Transaction shall be contingent upon and subject to
written notice to Escrow Holder by City of the occurrence of all of the following conditions
OMM US:80436206.9 9
precedent (or City's written waiver thereof, it being agreed that City can waive any or all such
contingencies) on or before the Close of Escrow:
(a) City's obtaining a satisfactory commitment issued by the Title Company to
issue the Title Policy in favor of City with a liability amount equal to the Coverage Amount insuring
City's leasehold interest in the Lease subject only to the Deemed Approved Exceptions, and being
otherwise in accordance with the provisions of this Agreement, and expressly insuring against the
claims of any persons in possession of all or any part of the Property and the claims of any
mechanics or materialmen.
(b) City's verifying that there are no liens or security interests affecting the
Property, and that all taxes, sewer, water, and utility bills have been paid.
(c) That as of the Close of Escrow the representations and warranties of Donor
contained in this Agreement are either all true and correct in all material respects or, to the extent
that is not the case, have been waived by City.
(d) Donor's delivery of all sums to be deposited by Donor in Escrow in
accordance with the requirements hereof, and Donor's delivery of all documents required to be
delivered by Donor pursuant to Section 5 hereof and performance of all other material covenants
and agreements to be performed by Donor under this Agreement.
(e) City's approval, prior to the expiration of the Feasibility Period, of the
physical condition of the Improvements, including without limitation, any and all inspections, tests,
and other studies to be conducted by City, in City's sole discretion.
(f) City and The Valencia Summit Homeowners Association (the "Landlord")
having executed and acknowledged a Third Amendment to Lease amending certain provisions of
the Lease (the "Third Amendment").
(g) Donor's delivery to City of the Estoppel Certificate duly executed by the
Landlord under the Lease, and dated not more than five (5) Business Days prior to the Closing
Date. Notwithstanding anything to the contrary contained in this Agreement, any failure by Donor
to deliver the executed Estoppel Certificate shall not be a default hereunder.
For circumstances other than a default by Donor (which is governed by Section 12(b)
below), if a City's condition precedent has not been satisfied or waived prior to the Closing Date,
for any reason other than City's default, City may, as its sole right and remedy, terminate this
Agreement, in which case this Agreement shall be of no further force or effect and the Escrow
Holder shall, and is hereby instructed to, cancel Escrow.
9. Donor's Conditions. For the benefit of Donor, the Close of Escrow and Donor's
obligation to consummate the Donation Transaction, shall be contingent upon and subject to
written notice to the Escrow Holder by Donor of the occurrence of all of the following conditions
precedent (or Donor's written waiver thereof, it being agreed that Donor can waive any or all such
contingencies) on or before the Close of Escrow:
(a) Deposit by City of the sums to be deposited by City in Escrow in
accordance with the requirements hereof.
OMM US:80436206.9 10
(b) City's delivery of all documents required to be delivered by City pursuant
to Section 5 hereof and performance of all other material covenants and agreements to be
performed by City under this Agreement.
(c) That as of the Close of Escrow the representations and warranties of City
contained in this Agreement are all either true and correct in all material respects or, to the extent
that is not the case, have been waived by Donor.
For circumstances other than a default by City (which is governed by Section 12(a) below),
if a Donor's condition precedent has not been satisfied or waived prior to the Closing Date, for
any reason other than Donor's default, Donor may, as its sole right and remedy, terminate this
Agreement, in which case this Agreement shall be of no further force or effect and the Escrow
Holder shall, and is hereby instructed to, cancel Escrow.
10. Hazardous Materials. In addition to, and without limiting Donor's other
representations and warranties in this Agreement, Donor represents and warrants to City, as
follows:
(a) To Donor's actual knowledge, Donor has received no written warning,
notice of violation, administrative complaint, judicial complaint, or other formal or informal written
notice alleging that conditions on the Land or Improvements are or have been in violation of any
Environmental Law (as defined in below), or informing Donor that the Land or Improvements are
subject to investigation or inquiry regarding Hazardous Substances (as defined below) or the
potential violation of any Environmental Law.
(b) To Donor's actual knowledge, there is no monitoring program required by
the Environmental Protection Agency or any similar state agency concerning the Land or the
Improvements.
(c) To Donor's actual knowledge, no toxic or hazardous chemicals, waste, or
substances of any kind have ever been spilled, disposed of, or stored on, under, or at the
Improvements by Donor or anyone under Donor's control, whether by accident, burying, drainage,
or storage in containers, tanks, or holding areas, or by any other means.
(d) To Donor's actual knowledge, Donor has received no written request,
directive, administrative order or judicial order to impose any type of land use restriction or
institutional control relating to Hazardous Substances on the Land or the Improvements.
As used in this Agreement, "Environmental Laws" means all federal, state, or local laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government
authority, regulating, relating to, or imposing liability or standards of conduct concerning any
Hazardous Substances. As used in this Agreement, "Hazardous Materials" includes, without
limitation, any hazardous or toxic materials, substances or wastes, such as, but not limited to, (1)
those materials identified in Sections 66680 through 66685 and Sections 66693 through 66740
of Title 22 of the California administrative Code, Division 4, Chapter 30, as amended from time to
time, (2) those materials defined in Section 25501(j) of the California Health and Safety Code, (3)
any materials, substances or wastes which are toxic, ignitable, corrosive or reactive and which
are regulated by any local governmental authority, any agency of the State of California or any
agency of the United States Government, (4) asbestos, (5) petroleum and petroleum based
products, (6) urea formaldehyde foam insulation, (7) polychlorinated biphenyls (PCBs) and (8)
OMM US:80436206.9 11
freon and other chlorofluorocarbons.
11. Limitations on Representations and Warranties.
(a) Survival. Any action, suit or proceeding with respect to the truth, accuracy
or completeness of the representations and warranties set forth in Sections 7 and 10 shall be
commenced and served, if at all, on or before the date which is three (3) months after the date of
the Closing (the period between the Closing and such date being referred to herein as the
"Survival Period") and, if not commenced and served on or before the expiration of the Survival
Period, thereafter shall be void and of no force or effect.
(b) Cap and Threshold. City will not have any right to assert a claim that the
condition set forth in Section 11(a) hereof has not been satisfied as of the Closing Date or to bring
any action against Donor as a result of any untruth, inaccuracy or breach of any representations
and warranties under this Agreement, unless and until the aggregate amount of all liability and
losses arising out of all such untruths, inaccuracies, breaches and failures exceeds, in the
aggregate, Twenty Thousand and 00/100 Dollars ($20,000) (the "Post -Closing Threshold"), in
which case City shall be entitled to recover all amounts below such threshold. In addition, in no
event will Donor's liability for all such untruths, inaccuracies, breaches, and/or failures under this
Agreement or under any documents delivered at the Closing exceed, in the aggregate, Fifty
Thousand and 00/100 Dollars ($50,000) (the "Post -Closing Cap"). In no event will Donor have
any liability whatsoever for any such untruths, inaccuracies, breaches and/or failures under this
Agreement or under any documents delivered at the Closing, unless City has notified Donor in
writing of the existence of such claim prior to the end of the Survival Period as set forth in this
Agreement.
(c) Knowledge. Donor shall have no liability with respect to any of Donor's
representations, warranties and covenants herein if, prior to the Closing, City has actual
knowledge of any breach of a representation, warranty or covenant of Donor herein, and City
nevertheless consummates the transaction contemplated by this Agreement.
12. Rights and Remedies Upon Default.
(a) Donor's Remedies Upon Default of City. If, as of the Closing Date, (a)
each of the City's conditions precedent as set forth in this Agreement have been satisfied or
waived, and (b) City fails or refuses to timely consummate the Closing in accordance with the
terms and conditions of this Agreement, except on account of a breach or default hereunder by
Donor, Donor may elect, as Seller's sole remedy, five (5) business days following City's receipt
of written notice from Donor with an opportunity to cure such failure, terminate this Agreement by
written notice to Donor and receive reimbursement for its out of pocket expenses incurred in
connection with the transaction, in an amount not to exceed Twenty Five Thousand and 00/100
Dollars ($25,000). The foregoing provision shall not limit Donor's remedies with respect to City's
obligations and covenants contained in Section 6(c).
(b) City's Remedies Upon Default of Donor. If, as of the Closing Date, (a)
each of the Donor's conditions precedent as set forth in this Agreement have been satisfied or
waived by Donor, and (b) Donor fails or refuses to timely convey the Property to City in
accordance with the terms and conditions of this Agreement, except on account of a breach or
default hereunder by City, City may elect, five (5) business days following Donor's receipt of
written notice from City with an opportunity to cure such failure, one of the following remedies
(and City hereby waives any and all other rights and remedies against Donor): (i) terminate this
OMM US:80436206.9 12
Agreement by written notice to Donor and receive reimbursement for its out of pocket expenses
incurred in connection with the transaction, in an amount not to exceed Twenty Five Thousand
and 00/100 Dollars ($25,000); or (ii) bring an action for specific performance of this Agreement,
which action shall be brought, if at all, no later than sixty (60) days after the scheduled Closing
Date. City hereby waives its right to bring any action for damages (including without limitation
actual, consequential, special and punitive damages) arising out of or relating to this Agreement
or Donor's default hereunder. City's election to proceed with the Closing with actual knowledge
of a breach or default by Donor hereunder as of or prior to the Closing (including without limitation
a breach of any representation or warranty of Donor herein) shall conclusively constitute City's
waiver of any and all claims against Donor on account thereof.
(c) Survival. The provisions of this Section 12 shall survive any termination
of this Agreement.
13. "AS -IS" SALE; RELEASE. EXCEPT TO THE EXTENT ANY COVENANT,
REPRESENTATION OR WARRANTY IS EXPRESSLY SET FORTH HEREIN, CITY SHALL
ACQUIRE THE PROPERTY AT CLOSING IN AN "AS -IS, WHERE -IS" CONDITION, SOLELY IN
RELIANCE ON CITY'S OWN INVESTIGATION, ANALYSIS AND INSPECTION OF THE
PROPERTY, WITHOUT ANY COVENANTS, REPRESENTATIONS OR WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND WHATSOEVER, BY DONOR, ITS
AGENTS, BROKERS, CONSULTANTS, COUNSEL, EMPLOYEES, OFFICERS, DIRECTORS,
MEMBERS, MANAGERS, OR TRUSTEES OR ANY OTHER DONOR PARTY. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AND EXCEPT TO THE EXTENT OF ANY
COVENANT, REPRESENTATION OR WARRANTY EXPRESSLY FORTH HEREIN, CITY
ACKNOWLEDGES THAT DONOR EXPRESSLY DISCLAIMS AND NEGATES ANY IMPLIED
OR EXPRESS WARRANTY WITH RESPECT TO THE CONDITION OF THE PROPERTY, ITS
SUITABILITY FOR CITY'S INTENDED USE, ITS COMPLIANCE WITH ANY ZONING OR
OTHER RULES, REGULATIONS, LAWS OR STATUTES APPLICABLE TO THE PROPERTY,
OR ANY OTHER MATTER OR THING RELATING TO THE PROPERTY. CITY HEREBY
FURTHER ACKNOWLEDGES AND AGREES THAT WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM THE TRANSACTION
CONTEMPLATED HEREBY, AS ARE ANY WARRANTIES ARISING FROM A COURSE OF
DEALING OR USAGE OF TRADE. EXCEPT FOR THE LIMITED REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, CITY ACKNOWLEDGES
AND AGREES THAT NO PERSON ACTING ON BEHALF OF DONOR IS AUTHORIZED TO
MAKE, AND BY INITIALING CITY HEREBY ACKNOWLEDGES THAT NO PERSON HAS MADE,
ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR
PROMISE REGARDING THE PROPERTY, OR THE TRANSACTION CONTEMPLATED
HEREIN, OR REGARDING THE ZONING, CONSTRUCTION, PHYSICAL CONDITION OR
OTHER STATUS OF THE PROPERTY, AND NO REPRESENTATION, WARRANTY,
AGREEMENT, STATEMENT, GUARANTY OR PROMISE, IF ANY, MADE BY ANY PERSON
ACTING ON BEHALF OF DONOR WHICH IS NOT EXPRESSLY CONTAINED HEREIN SHALL
BE VALID OR BINDING UPON DONOR. THE PROVISIONS OF THIS SECTION 13 SHALL
SURVIVE CLOSING.
Initials:
CITY
CITY HEREBY RELEASES AND WAIVES ANY AND ALL CLAIMS WHICH CITY HAS OR MAY
HAVE AGAINST DONOR WITH RESPECT TO THE CONDITION OF THE PROPERTY, ITS
SUITABILITY FOR CITY'S INTENDED USE, ITS COMPLIANCE WITH ANY ZONING OR
OMM US:80436206.9 13
OTHER RULES, REGULATIONS, LAWS OR STATUTES APPLICABLE TO THE PROPERTY,
OR ANY OTHER MATTER OR THING RELATING TO THE PROPERTY, EXCEPT TO THE
EXTENT OF ANY COVENANT, REPRESENTATION OR WARRANTY EXPRESSLY SET
FORTH IN THIS AGREEMENT, AND EXCEPT FOR DONOR'S INDEMNITY OBLIGATIONS
UNDER THIS AGREEMENT, CITY ACKNOWLEDGES TO DONOR THAT CITY HAS BEEN
GIVEN THE OPPORTUNITY TO INSPECT AND INVESTIGATE THE PROPERTY AND CITY
ASSUMES THE RESPONSIBILITY AND RISKS OF ALL DEFECTS AND CONDITIONS,
INCLUDING SUCH DEFECTS AND CONDITIONS, IF ANY, THAT CANNOT BE OBSERVED BY
CASUAL INSPECTION. IN CONNECTION WITH SUCH WAIVER AND RELINQUISHMENT,
CITY ACKNOWLEDGES THAT IT IS AWARE THAT IT OR ITS ATTORNEYS, ACCOUNTANTS
OR OTHER CONSULTANTS MAY HEREAFTER DISCOVER FACTS IN ADDITION TO OR
DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO EXIST WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, BUT THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS CITY'S INTENTION HEREBY TO
SETTLE AND RELEASE ALL OF THE CLAIMS, DISPUTES, AND DIFFERENCES, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, WHICH NOW EXIST OR MAY EXIST
HEREAFTER BETWEEN CITY AND DONOR WITH REGARD TO THE PROPERTY. THIS
AGREEMENT SHALL BE AND REMAIN IN EFFECT AS A FULL AND COMPLETE RELEASE
NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF ANY SUCH ADDITIONAL OR
DIFFERENT FACTS. [IN CONNECTION WITH THE RELEASE SET FORTH IN THIS SECTION
13, CITY EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA
CIVIL CODE WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE
AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY
Initials:
CITY
The foregoing release shall survive the Closing.
14. Binding Effect. This Agreement shall be binding upon, shall inure to the benefit
of, and shall be enforceable by, the Parties and their respective successors and permitted
assigns.
15. Governing Law. This Agreement shall be governed by and construed under and
in accordance with the laws of the State of California. Any litigation with respect to this Agreement
shall be conducted in the County of Los Angeles, California.
16. Counterparts. This Agreement may be executed in one or more counterparts
each of which shall be deemed an original but all of which shall constitute one and the same
Agreement. The Parties contemplate that they may be executing counterparts of this Agreement
transmitted by facsimile or email in PDF format and agree and intend that a signature by email in
PDF format shall bind the Party so signing with the same effect as though the signature were an
original signature.
OMM US:80436206.9 14
17. Waiver. Except as otherwise provided herein, the failure of Donor or City to insist
upon or enforce any of their respective rights hereunder shall not constitute a waiver thereof.
18. Construction. Each Party acknowledges that the Parties have participated
equally in the drafting of this Agreement and that accordingly, no court construing this Agreement
shall construe it more stringently against one party than the other.
19. Headings. The captions used herein have been included for convenience of
reference only and shall not be deemed to vary the content of this Agreement or limit the
provisions or scope of any section or paragraph hereof.
20. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but in the event that
any provision of this Agreement shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
21. Brokers. The parties represent and warrant to each other that no broker or finder
was instrumental in arranging or bringing about this Donation Transaction and that there are no
claims or rights for brokerage commissions or finder's fees in connection with the transactions
contemplated by this Agreement. If any person brings a claim for a commission or finder's fee
based upon any contact, dealings or communication with City or Donor, then the party through
whom such person makes his claim shall defend the other party (the "Indemnified Party") from
such claim, and shall indemnify the Indemnified Party and hold the Indemnified Party harmless
from any and all costs, damages, claims, liabilities or expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by the Indemnified Party in defending
against the claim. The provisions of this Section 15 shall survive the Closing and the recording
of the Lease Assignment and the Deed.
22. Merger. All prior statements, understandings, letters of intent, representations and
agreements between the Parties, oral or written, are superseded by and merged in this
Agreement, which alone fully and completely expresses the agreement between Donor and City
in connection with this Donation Transaction and which is entered into after full investigation,
neither party relying upon any statement, understanding, representation or agreement made by
the other not embodied in this Agreement.
23. Meanings of Words Not Specifically Defined/General Rules of Interpretation.
Words and phrases contained herein shall be construed according to the context and the
approved usage of the English language, but technical words and phrases, and such others as
have acquired a peculiar and appropriate meaning by law, or are defined in this Agreement, are
to be construed according to such technical, peculiar, and appropriate meaning or definition.
Whenever the context requires, all words used in the singular will be construed to have been used
in the plural, and vice versa, and each gender will include any other gender. As used in this
Agreement, the word "includes or "including" means including without limitation, the word "or' is
not exclusive and the words "herein," "hereof," "hereto" and hereunder refer to this Agreement as
a whole unless the context otherwise requires, and references herein: (a) to articles, paragraphs,
sections and exhibits mean the articles, paragraphs, sections and exhibits which are part of this
Agreement as amended, supplemented or modified from time to time to the extent permitted by
the provisions thereof and by this Agreement, (b) to an agreement, instrument or other document
means such agreement, instrument or other document as amended, supplemented or modified
from time to time to the extent permitted by the provisions thereof and by this Agreement, and (c)
OMM US:80436206.9 15
to a statute means such statute as amended, supplemented or replaced from time to time. The
exhibits, schedules, addenda, and attachments which are attached to this Agreement are made
a part of this Agreement.
24. Third Parties. This Agreement shall not be deemed to confer in favor of any third
parties any rights whatsoever as third -party beneficiaries, the Parties intending by the provisions
hereof to confer no such benefits or status.
25. Notices. All notices, elections, consents, approvals, demands, objections,
requests or other communications which Donor or City may be required or desire to give pursuant
to, under or by virtue of this Agreement (collectively, "Notices") must be in writing and sent by (a)
personal delivery, (b) registered or certified mail, return receipt requested, with postage prepaid,
(c) nationally recognized overnight courier service that provides receipted delivery service,
delivery charges prepaid, or (d) email, in each case of clause (a) through (d), addressed to the
respective party at the address for each set forth below. Notices shall be deemed received, and
the time period for which a response to any such notice must be given or any action taken with
respect thereto (including cure of any prospective Event of Default) shall commence to run upon
the earlier of (a) if personally delivered or sent by email or overnight courier, on the date of delivery
if delivered before 5:00 p.m. on a Business Day, and otherwise on the next Business Day, or (b)
if mailed, on the date of delivery as shown on the sender's registered mail or certified mail receipt.
Rejection or other refusal to accept or the inability to deliver because of changed address of which
no notice was given shall be deemed to constitute receipt of the Notice. Donor or City may
designate another addressee or change its address for notices and other communications
hereunder by a notice given to the other in the manner provided in this Section 25.
To City:
City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, California 91355
Attn.: City Manager
Email: kstriplin@santa-clarita.com
With a copy to:
Burke, Williams & Sorensen, LLP
444 South Flower Street, 24th Floor
Los Angeles, California 90071
Attn.: Joseph M. Montes, Esq.
Email: jmontes@bwslaw.com
To Donor:
YMCA of Metropolitan Los Angeles.
4301 W. 3rd Street
Los Angeles, CA 90020
Attn: Mark Dengler
Email: markdengler@ymcala.org
With a copy to:
O'Melveny & Myers LLP
400 S. Hope Street, 18th Floor
Los Angeles, California 90071
Attn: Brian Kenyon, Esq.
Email: bkenyon@omm.com
26. No Modification. This Agreement constitute the entire agreement between the
Parties with respect to the transactions contemplated hereby and supersedes all prior
OMM US:80436206.9 16
understandings or agreements between the Parties as to the subject matter hereof. No term or
provision of this Agreement may be changed or waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
27. No Offer or Binding Contract. The Parties agree that the submission of an
unexecuted copy or counterpart of this Agreement by one party to another is not intended by
either party to be, or be deemed to be, a legally binding contract or an offer to enter into a legally
binding contract. The Parties shall be legally bound pursuant to the terms of this Agreement only
if and when the Parties have been able to negotiate all of the terms and provisions of this
Agreement in a manner acceptable to each of the Parties in their respective sole discretion, and
both Donor and City have fully executed and delivered this Agreement.
[Signatures on following page(s)]
OMM US:80436206.9 17
IN WITNESS WHEREOF, Donor and City have caused this Agreement to be executed
and delivered, as of the Effective Date.
ATTEST:
City Clerk
"Donor"
YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES, a California
nonprofit corporation
By:
Name:
Title:
"City"
CITY OF SANTA CLARITA,
a body corporate and politic
By:
Name:
Title:
OMM US:80436206.9 18
Exhibit A
Legal Description
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 1 OF TRACT NO. 31744, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1084, PAGES 93 TO 97 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 2861-051-005 (Affects a portion of said land)
2861-051-014 (Affects a portion of said land)
2861-051-011 (Affects a portion of said land)
OMM US:80436206.9 Exhibit A
Exhibit B
FORM OF LEASE ASSIGNMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Boulevard
Santa Clarita, California 91355
Attention: City Clerk
FEE EXEMPT GOVT. CODE 6103 & 27383
APNs: [ (Space Above For Recorder's Use)
THE UNDERSIGNED ASSIGNOR DECLARES THAT THE CITY OF SANTA CLARITA IS
ACQUIRING TITLE AND IS EXEMPT FROM DOCUMENTARY TRANSFER TAX PURSUANT
TOR&T11922
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
This ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this "Assignment")
is made as of this _ day of , 2023 ("Assignment Date"), by and between YOUNG
MEN'S CHRISTIAN ASSOCIATION OF METROPOLITAN LOS ANGELES, a California
nonprofit corporation ("Assignor"), and CITY OF SANTA CLARITA, a body corporate and
politic ("Assignee").
A. The Valencia Summit Homeowners Association ("Lessor"), as lessor, and
Assignor, as lessee, are the current parties to that certain Lease dated as of March 24, 1986,
and recorded September 23, 1987 in the Official Records of Los Angeles County, California (the
"Official Records"), as Instrument No. 1987-1521895 (as the same was amended by that
certain document(s) recorded September 23, 1987, in the Official Records as Instrument No.
1987-1521896, as further amended by that certain document(s) recorded December 4, 1987, in
the Official Records as Instrument No. 1987-1916363, as the same may have been further
amended and assigned, the "Lease"), regarding that certain premises located at 26147 McBean
Pkwy, Santa Clarita, California, legally described on the attached Exhibit A (the "Property").
B. Pursuant to, and on the terms and subject to the conditions of, that Donation
Agreement, dated as of , 2023, by and between Assignor and Assignee (the
"Donation Agreement"), Assignor desires to assign all of its right, title and interest in the Lease
to Assignee, and Assignee desires to, among other things, assume all rights and obligations of
Assignor under the Lease which relate to or arise on or after the Assignment Date, pursuant to
the provisions of this Assignment.
C. This Assignment is made pursuant to Section 23 of the Lease and with the
consent of Lessor.
D. Unless otherwise defined herein, capitalized terms as used herein shall have the
same meanings as given thereto in the Lease.
E. NOW, THEREFORE, in consideration of the sum of $1.00 and other good and
OMM US:80436206.9 Exhibit B - 1
valuable consideration, the receipt and sufficiency of which Assignor and Assignee hereby
acknowledge, Assignor and Assignee hereby agree as follows:
AGREEMENT
Recitals. The foregoing Recitals are incorporated herein by reference.
2. Assignment of Lease. Subject to the terms and conditions herein, Assignor
hereby transfers, assigns and conveys to Assignee, and Assignee's successors and assigns, all
of Assignor's right, title and interest in, to and under the Lease (collectively, the "Assigned
Interests").
3. Assumption of Lease. Subject to the terms and conditions herein, Assignee
hereby accepts the assignment of the Assigned Interests and agrees to perform, observe, keep
and comply with all the terms, covenants, conditions, provisions and agreements contained in
the Lease on the part of the lessee therein to be performed, observed, kept and complied with
to the extent relating to the time period, or first arising, on or after the Assignment Date
4. Lessor Consent. Lessor hereby consents to this Assignment and the assignment
and assumption of the Assigned Interests described herein. Lessor acknowledges and agrees
that this Assignment, among other things, transfers to Assignee ownership of and title to the
Facility (as defined in the Lease) during the term of the Lease, including extension of the term of
the Lease.
5. Miscellaneous. This Assignment shall be binding on and inure to the benefit of
Assignor, Assignee and their respective successors and assigns. This Assignment may be
executed in counterparts which, when taken together, shall constitute one and the same
instrument. For purposes of the execution of this Assignment, facsimile or electronic signatures
shall be deemed originals. In the event a dispute arises concerning this Assignment, the
prevailing party in such dispute shall be entitled to receive from the other party any and all costs
and expenses incurred by the prevailing party in enforcing or establishing its rights hereunder,
including, without limitation, court costs and reasonable attorneys' fees. This Assignment shall
be governed by, and construed under, the laws of the state where the property that is the
subject of the Lease is located. Each party represents that the person signing this Assignment
on behalf of such party has full right and authority to execute this Assignment and that execution
and delivery of this Assignment has been authorized by any required vote, consent or approval.
[Signature page follows]
OMM US:80436206.9 Exhibit B - 2
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the date first written above.
ASSIGNOR
YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES, a California nonprofit corporation
By:
Name:
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
OMM US:80436206.9 Exhibit B - 3
(Seal)
ASSIGNEE
CITY OF SANTA CLARITA,
a body corporate and politic
By:
Name:
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
OMM US:80436206.9 Exhibit B - 4
(Seal)
ACKNOWLEDGED AND CONSENTED TO BY LESSOR:
THE VALENCIA SUMMIT HOMEOWNERS ASSOCIATION
By:
Name:
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
OMM US:80436206.9 Exhibit B - 5
(Seal)
Exhibit A
Exhibit A (to Exhibit B)
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 1 OF TRACT NO. 31744, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1084, PAGES 93 TO 97 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 2861-051-005 (Affects a portion of said land)
2861-051-014 (Affects a portion of said land)
2861-051-011 (Affects a portion of said land)
OMM US:80436206.9 Exhibit B - 6
Exhibit C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Santa Clarita
23920 Valencia Boulevard
Santa Clarita, California 91355
Attention: City Clerk
FEE EXEMPT GOVT. CODE 6103 & 27383
APNs: [�
(Space Above For Recorder's Use)
THE UNDERSIGNED GRANTOR DECLARES THAT THE CITY OF SANTA CLARITA IS
ACQUIRING TITLE AND IS EXEMPT FROM DOCUMENTARY TRANSFER TAX PURSUANT
TOR&T11922
QUITCLAIM DEED
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, YOUNG MEN'S CHRISTIAN ASSOCIATION OF METROPOLITAN LOS
ANGELES, a California nonprofit corporation ("GRANTOR"), hereby remises, transfers, releases
and quitclaims to CITY OF SANTA CLARITA, a body corporate and politic, all of Grantor's right,
title and interest in, to and under that certain real property located in the County of Los Angeles,
State of California, described in Exhibit A attached hereto and incorporated herein by this
reference.
Dated: 12023
YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES, a California
nonprofit corporation
By:
Name:
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy,
or validity of that document.
State of California
County of
OMM US:80436206.9 Exhibit C - 1
On , before me,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
OMM US:80436206.9 Exhibit C - 2
(Seal)
Exhibit A (to Exhibit C)
Legal Description of the Real Property
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 1 OF TRACT NO. 31744, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1084, PAGES 93 TO 97 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN 2861-051-005 (Affects a portion of said land)
2861-051-014 (Affects a portion of said land)
2861-051-011 (Affects a portion of said land)
OMM US:80436206.9 Exhibit C - 3
Exhibit D
FORM OF ESTOPPEL CERTIFICATE
TO: City of Santa Clarita (the "City")
RE: Premises Located at 26147 McBean Pkwy, Santa Clarita, California (the "Premises")
DATED: , 2023
The undersigned is the Landlord (the "Landlord") under the Lease dated as of March 24,
1986, and recorded September 23, 1987 in the Official Records of Los Angeles County, California
(the "Official Records"), as Instrument No. 1987-1521895 (as the same was amended by that
certain document(s) recorded September 23, 1987, in the Official Records as Instrument No.
1987-1521896, as further amended by that certain document(s) recorded December 4, 1987, in
the Official Records as Instrument No. 1987-1916363 (collectively, the "Lease"), pursuant to
which Donor leases the Premises to Young Men's Christian Association of Metropolitan Los
Angeles, a California nonprofit corporation, formerly known as Young Men's Christian Association
(the "Tenant"). The undersigned Landlord acknowledges that the City will be receiving an
assignment of the Lease from the Tenant and, in connection therewith, certifies to the City the
following:
1. A true, correct and complete copy of the Lease is attached hereto as Exhibit 1, and the
attached Lease is in full force and effect and has not been further amended or modified, except
by that certain Third Amendment to Lease by and between Landlord and City, dated as of
2023, a true, correct and complete copy of which is attached hereto as Exhibit
2.
2. The term of the Lease commenced on March 24, 1986, and will terminate on March
23, 2036, unless renewed as provided in the Lease. Tenant has the option to renew the Lease
for one (1) successive term of forty-nine (49) years.
4. Tenant is not in default under the Lease, nor is there any event which, with the giving
of notice or the passage of time, or both, would constitute a default by the Tenant under the Lease.
5. The rental under the Lease for the full term, including any renewal of the term, is One
Hundred Dollars ($100.00), and such rental has been paid in full and no further rental is owing by
the Tenant under the Lease.
6. The "Facility" (as defined in the Lease) has been constructed and completed by the
Tenant in accordance with the terms of the Lease, and the Tenant is the owner of the Facility and
all improvements located on the Premises (as defined in the Lease) during the term of the Lease,
including any renewal of the term of the Lease.
[SIGNATURE IS ON THE NEXT PAGE]
Exhibit D - 1
THE VALENCIA SUMMIT
HOMEOWNERS ASSOCIATION
Name:
Title:
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On , before me,
(insert name of notary)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
Exhibit D - 2
Exhibit 1 to Estoppel Certificate
[To Be Attached]
Exhibit D - 3
Exhibit 2 to Estoppel Certificate
[To Be Attached]
Exhibit D - 4
Exhibit E
FORM OF BILL OF SALE
Bill of Sale
THIS BILL OF SALE (this "Bill of Sale") is made as of , by and between
Young Men's Christian Association of Metropolitan Los Angeles, a California nonprofit
corporation ("Donor"), and City of Santa Clarita, a body politic and corporate ("City").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged, Donor does hereby transfers and delivers to City, pursuant to that
certain Donation Agreement dated as of , between Donor and City (the
"Agreement"), all of Donor's right, title and interest in and to all (collectively, the "Personal
Property") machinery, equipment, and fixtures (if any) located on and used in connection with
the ownership and operation of, or otherwise relating to, the real property located in the City of
Santa Clarita, County of Los Angeles, State of California, as more particularly described on
Exhibit A attached hereto (the "Real Property"). The Personal Property is conveyed to City in
its "AS IS" condition, with no warranties or representations of any kind whatsoever, except as
expressly set forth in the Agreement.
above.
Dated:
IN WITNESS WHEREOF, Donor has executed this Bill of Sale as of the date first set forth
YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES,
a California nonprofit corporation
By:
Name:
Title:
Exhibit E - 1
Exhibit A (to Exhibit E)
Legal Description of the Real Property
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 1 OF TRACT NO. 31744, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1084, PAGES 93 TO 97 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 2861-051-005 (Affects a portion of said land)
2861-051-014 (Affects a portion of said land)
2861-051-011 (Affects a portion of said land)
Exhibit E - 2
EXHIBIT F
FORM OF GENERAL ASSIGNMENT
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of this
day of 12023 (the "Effective Date"), by and between YOUNG MEN'S
CHRISTIAN ASSOCIATION OF METROPOLITAN LOS ANGELES, a California nonprofit
corporation ("Assignor") and CITY OF SANTA CLARITA, a body politic and corporate
("Assignee").
RECITALS
A. Assignor and Assignee have entered into that certain Donation Agreement dated
(the "Donation Agreement"), for the donation to Assignee of Assignor's right, title
and interest in and to certain real property more particularly described on Schedule 1 hereto
(the "Real Property"); and
B. This Assignment is being made pursuant to the terms of the Donation
Agreement for the purpose of assigning to Assignee all of Assignor's rights, title and interest in
and to the Intangible Property (defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby grants, conveys, transfers, and assigns to Assignee effective as
of the Effective Date, without representation or warranty of any kind except as expressly set
forth in the Donation Agreement, all of Assignor's right, title, and interest in and to the Intangible
Property (defined below), to the extent assignable. Assignee hereby accepts such grant,
conveyance, transfer and assignment, and agrees to fully perform and assume all the
obligations of Assignor under the Intangible Property arising from and after the Effective Date.
(a) "Intangible Property" is defined herein as, to the extent assignable, all of
Assignor's right, title, and interest in and to any and all intangible property used and/or
necessary in connection with the Real Property, including, without limitation, surveys, reports,
plans and specifications, contract rights, warranties, guaranties, licenses, permits, entitlements,
governmental approvals and certificates of occupancy that benefit the Real Property.
2. This Assignment shall be binding on and inure to the benefit of the parties herein,
their successors -in -interest and assigns.
3. This Assignment shall be governed by and construed in accordance with the
laws of the State of California without reference to choice of law principles which might indicate
that the law of some other jurisdiction should apply.
4. Nothing contained herein shall be deemed or construed as relieving the Assignor
or Assignee of their respective duties and obligations under the Donation Agreement. In
addition, it is expressly understood and agreed by and between the parties hereto that any
liability of Assignor hereunder shall be limited as set forth in the Donation Agreement.
Exhibit F - 1
5. This Assignment may be executed in any number of counterparts, each of which
shall be deemed an original for all purposes, and all of which shall constitute one and the same
instrument as if all parties had signed the same signature page.
IN WITNESS WHEREOF, this Assignment is made as of the day and year first above
written.
ATTEST:
City Clerk
"Assignor"
YOUNG MEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN LOS ANGELES, a California
nonprofit corporation
By:
Name:
Title:
"Assignee"
CITY OF SANTA CLARITA,
a public body corporate and politic
By:
Name:
Title:
Exhibit F - 2
Exhibit A (to Exhibit F)
Legal Description of the Real Property
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 1 OF TRACT NO. 31744, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 1084, PAGES 93 TO 97 INCLUSIVE OF MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 2861-051-005 (Affects a portion of said land)
2861-051-014 (Affects a portion of said land)
2861-051-011 (Affects a portion of said land)
Exhibit F - 3
EXHIBIT G
CERTIFICATE OF NON -FOREIGN STATUS
Section 1445 of the United States Internal Revenue Code (the "Code") provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
For U.S. tax purposes (including Section 1445), the owner of a disregarded entity that has legal
title to a U.S. real property interest under local law, and not the disregarded entity itself, is
treated as the transferor of the property. ("Donor") is conveying certain U.S.
real property rights to the City of Santa Clarita, a body politic and corporate ("Transferee").
Donor is owned one hundred percent (100%), either directly or indirectly, by
("Transferor"). To inform Transferee that withholding of tax will not be
required upon the transfer of a U.S. real property interest to Transferee by Donor, Transferor
hereby certifies to Transferee the following:
1. Donor is a disregarded entity and Transferor is not a disregarded entity (each as
such term is defined in Section 1.1445-2(b)(2)(iii) of the Income Tax Regulations promulgated
thereunder).
2. Transferor is not a foreign person, foreign corporation, foreign partnership,
foreign trust, or foreign estate (as these terms are defined in the Code and the Income Tax
Regulations promulgated thereunder).
3. Transferor's United States employer identification number is:
4. Transferor's office address is:
Under penalty of perjury, I declare that I have examined this certification and to the best
of my knowledge and belief, it is true, correct and complete.
Dated as of: , 2023
TRANSFEROR:
By:
Name:
Title:
Exhibit G