HomeMy WebLinkAboutNoyan Frazier Capital - P/S Property - 877 Fulton, APN 468-282-21T - 2021 4/g/ ?-oL,
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REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THE CITY OF FRESNO in its capacity as Housing Successor to the Redevelopment
Agency of the City of Fresno, a public body, corporate and politic ("Seller" or "Housing
Successor"), and Noyan Frazier Capital, L.P., a California limited partnership ("Buyer"),
enter into this Real Property Purchase and Sale Agreement and Joint Escrow Instructions
(Agreement), effective as of the date of Council approval, notwithstanding the date of
execution (Effective Date).
RECITALS
A. The Seller owns certain real property commonly known as the Berkeley Building
located at 877 Fulton Street (APN 468-282-21T), Fresno, California, and more
particularly described in Exhibit A, attached, (Property).
B. The City of Fresno is the housing successor in interest to the Redevelopment
Agency of the City of Fresno pursuant to Resolution No. 2012-12, and as such
assumes all housing rights and obligations of the former Redevelopment Agency.
C. Buyer was granted an exclusive negotiating right for the Property as part of the
Disposition and Development Agreement for the South Fulton Street Mixed Use
Residential Rental Project dated March 15, 2016. The exclusive negotiating right
was originally granted through December 31, 2017, administratively extended by
letter from the City Manager dated December 13, 2017, through June 29, 2018,
extended further by the First Amendment to DDA dated June 28, 2018, through
April 11, 2020, and extended most recently by the First Amendment to Exclusive
Negotiation Agreement dated April 9, 2020, through April 11, 2021 (ENA).
D. Buyer paid an exclusive negotiating fee of $5,000 pursuant to the ENA, to offset
the costs of maintaining the Property for the past five years and the cost of
obtaining an updated appraisal. This fee is not applied to the Purchase Price.
E. The parties initially anticipated a Disposition and Development Agreement for the
Property, but have determined a Purchase and Sale Agreement is appropriate in
light of the proposed market rate project. Proceeds from the sale of this property
will go into the Low and Moderate Income Housing Fund and be used to purchase
affordable housing.
F. Since the Property is subject to an ENA, it is not subject to the newly adopted
provisions of the Surplus Land Act (Government Code 54220, et seq.), provided
disposition of the Property is completed no later than December 31, 2022.
G. The Buyer has agreed to purchase the Property as-is.
H. The Buyer desires to purchase the Property on the terms and conditions set forth
in this Agreement.
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NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Purchase and Sale. Seller will sell the Property to Buyer, and Buyer will purchase
the Property from Seller on the terms and conditions set forth in this Agreement.
2. Conditions Precedent. Closing shall be conditioned upon performance of all of
obligations in this Agreement and satisfaction of the conditions listed below, provided that
Seller may, in Seller's sole discretion, elect to waive any such condition of Closing.
2.1 Compliance with CEQA. The applicable lead agency shall have complied
with the California Environmental Quality Act with respect to this Agreement, as
applicable.
2.2 Environmental Assessment. The Property is being sold in an "As is"
condition. The Buyer may perform a Phase 1 Environmental Site Assessment at Buyer's
cost. Seller shall provide Buyer with any copies of environmental reports pertaining to the
Property in Seller's possession without any warranty as to their accuracy.
2.3 Building Plans. Developer has submitted to City 100-percent complete
plans and specifications for the Project, suitable for plan check and building permits.
2.4 Proof of Financing. Proof of available financing has been submitted and
approved by the Seller.
3. Purchase Price. The purchase price for the Property is $800,000 ("Purchase
Price"). The Purchase Price, subject to adjustments provided in this Agreement (if any),
will be paid by Buyer in cash or by wire transfer of immediately available funds at the
Closing.
4. Sale "AS IS" - No Warranties. Subject to the terms and conditions contained
herein, City will convey the Property "AS IS" with all faults, including, without limitation,
the conditions disclosed in any toxics reports delivered to Buyer, and any environmental
or other physical conditions on or under the Property, buried debris or structures, and soil
compaction, presence of Hazardous Materials or the condition of the soil, its geology, the
presence of known or unknown seismic faults, and the suitability of the Property for the
development purposes intended.
5. Opening Escrow/Escrow Deposit. Within ten business days after the Effective
Date, the parties will open an escrow ("Escrow") with R- e lit m ("Title
Company"), Attention:(3��,,,tdet-re- lrtl�� ,, and Buyer shall de fiver to the Title Company a
nonrefundable deposit of$25,000 (Initial Earnest Money Deposit), which shall be credited
toward the Purchase Price.
5.1 Agreement as Joint Escrow Instructions. This Agreement, when signed
by Buyer and Seller and deposited into escrow with the Title Company, will be the parties'
joint escrow instructions. Buyer and Seller will sign and deliver any other form instructions
the Title Company may require that are consistent with this Agreement.
056577-000001 7477760.1 2
property that-Buyer deems advisable. Seller grants Buyer, and/or Buyer's agents, the
right, upon 24 hours' notice, to enter onto the Property to conduct tests and investigations,
if all the following occur: (a) Buyer conducts tests and investigations at its sole cost and
expense; (b) the tests and investigations do not unreasonably interfere with Seller's
possession.
10. Parking. Seller agrees to negotiate in good faith with Buyer to provide parking at
market rate within the Fulton Corridor.
11. Miscellaneous Provisions.
11.1 Further Assurances. Each party will sign and deliver further documents,
or take any further actions required to complete the purchase and sale described herein.
11.2 Notices. All notices and other communications required or permitted under
this Agreement shall be in writing and shall be deemed delivered: (a) on the date of
service if served personally on the person to receive the notice, (b) on the date deposited
in the U.S. mail, if delivered by depositing the notice or communication in the U. S. mail,
postage prepaid, and addressed to the relevant party at the address set forth below, (c)
on the date of transmission if delivered by facsimile, to the number provided below, that
provides a transmission confirmation showing the date and time transmitted, or(d) on the
date of transmission if delivered electronically via email and showing the date and time
transmitted.
To Seller:
City of Fresno in its capacity as Housing Successor
Attention: Executive Director
848 M Street, 3rd Floor
Fresno, CA 93721
Phone No.: 559.621-7600
Fax No.: 559.498.1870
To Buyer:
Noyan Frazier Capital, L.P.
685 W Alluvial, #101
Fresno, CA 93711
Phone No.:
Fax No.:
11.3 Entire Agreement. Each Exhibit referred to in this Agreement is by that
reference incorporated into and made a part of this Agreement. This Agreement is the
entire agreement between the parties regarding the purchase and sale of the Property,
and supersedes all prior discussions, negotiations, commitments or understanding,
written or oral.
11.4 Amendment or Cancellation. Buyer and Seller may amend or cancel this
Agreement only by mutual written consent of the parties, unless otherwise expressly
provided herein.
11.5 Successors and Assigns. This Agreement is binding upon and shall inure
to the benefit of each party, and each party's heirs, successors, assigns, transferees,
056577-000001 7477760.1 4
5.2 Deposits into Escrow. Buyer and Seller will deposit all instruments,
documents, money, and other items into escrow with the Title Company that (i) this
Agreement identifies or (ii) the Title Company may require that are consistent with the
terms and purposes of this Agreement, and necessary to Closing. Prior to Closing, Buyer
will deposit the balance of the Purchase Price and Seller will deposit, or will conditionally
deliver to Buyer, a recordable grant deed duly executed and acknowledged before a
notary public, and accompanied by documentation reasonably necessary to establish the
authority of any signatory executing such deed on behalf of Seller.
5.3 Title. Seller will convey title of the Property to Buyer AS IS, without regard
to all title defects, liens, encumbrances, conditions, covenants, restrictions, leases or
agreements, and other adverse interests of record or known to Seller.
5.4 Title and Closing Costs. Buyer will pay any costs of clearing and
conveying title. Buyer will pay the cost of a CLTA or ALTA owner's title policy insuring
Buyer's title in the condition described in Section 5.3. Escrow fees, costs to record the
grant deed, etc., shall be split equally between Buyer and Seller.
5.5 Closing. The escrow will be considered closed ("Closing" or "Close" or the
"Closing Date") on the date that the Title Company records the grant deed. The escrow
will be in condition to Close when all conditions to Close are satisfied or waived, the Title
Company is prepared to issue the title policy and the Title Company is otherwise able to
record the grant deed. The escrow and this Agreement shall terminate if Closing does
not occur by October 8, 2021. If this Agreement is terminated prior to closing, the Initial
Earnest Money Deposit is nonrefundable, and this Agreement will be of no further effect
except as herein provided. No further extension of the Closing date shall be granted.
5.6 Recordation. At Closing, Title Company shall date the grant deed, and all
other undated documents in escrow, with the date of Closing, and the Title Company shall
record the grant deed and all other documents necessary to the Closing.
5.7 Disbursements. At Closing, Title Company shall disburse the Purchase
Price, less any Deposits previously disbursed and credited toward the Purchase Price, if
any, to Seller, when Title Company is committed to issue a standard CLTA or ALTA
owner's title insurance policy to Buyer, for the Purchase Price or such lesser amount as
Buyer may designate.
5.8 Risk of loss. Any loss or damage, to the Property or any improvements on
it, before Closing is at Seller's risk.
6. Emergency Repairs. In the event the Property becomes a health and safety risk,
the Seller may, at the Seller's sole option, remediate the health and safety risk including,
without limitation, demolition of the building, and the reasonable cost thereof shall be
added to the Purchase Price and paid to Seller at the Closing.
7. Broker. Neither party engaged a broker for this transaction.
8. Delivery of Possession. Seller shall deliver exclusive possession of the Property
at Closing.
9. Buyer's Right to Enter and Inspect the Property. During the escrow period,
Buyer shall have the right to enter, inspect, and conduct any due diligence tests on the
056577-000001 7477760.1 3
agents, employees or representatives. Buyer may not assign this Agreement without the
express written consent of Seller.
Buyer may not assign this Agreement without the consent of Seller which shall not
be unreasonably withheld. Notwithstanding the foregoing, Buyer shall have the right to
transfer Buyer's rights and obligations under this Agreement without Seller's consent to a
limited liability company, corporation, joint venture or partnership which satisfies all of the
following requirements (a "Permitted Transferee"): (i) Buyer, or a corporation or other
entity controlling, controlled by or under common control with Buyer (a "Buyer Affiliate"),
owns at least a fifty percent (50%) in the Permitted Transferee, (ii) Buyer or a Buyer
Affiliate is responsible for the day-to-day management of the Permitted Transferee, (iii)
the Permitted Transferee assumes all obligations of Buyer under this Agreement, and (iv)
Buyer promptly notifies Seller in writing of such transfer and assumption of obligations
and, upon Seller's request, provides Seller with copies of the operative documents that
evidence compliance with the foregoing requirements. No assignment shall relieve Buyer
of its obligations hereunder.
11.6 Time of the Essence. Time is of the essence of each term in this
Agreement.
11.7 Attorneys' Fees. If any party to this Agreement or the Title Company
begins any action, proceeding, or arbitration arising out of this Agreement, then as
between Buyer and Seller, the prevailing party shall be entitled to receive from the other
party, besides any other relief that may be granted, its reasonable attorneys' fees, costs,
and expenses incurred in the action, proceeding, or arbitration.
11.8 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed according to California law. Venue for the
filing of any action to enforce or interpret this Agreement or any rights and duties
hereunder shall be in Fresno, California.
11.9 Headings. The section headings in this Agreement are for convenience
only. The headings are not part of this Agreement and shall not be used to construe it.
11.10 Waiver. If Buyer or Seller waives a breach of any provision herein, the
waiver will not be a continuing waiver. The waiver will not constitute a waiver of any
subsequent breach, or a waiver of a breach of any other provision hereof.
11.11 Severability. The provisions of this Agreement are severable. The invalidity
or unenforceability of any provision in this Agreement will not affect the other provisions.
11.12 Interpretation. This Agreement is the result of the combined efforts of the
parties. If any provision of this Agreement is found ambiguous, the ambiguity will not be
resolved by construing this Agreement in favor or against any party, but by construing the
terms according to their generally accepted meaning.
11.13 Precedence of documents. If any conflict exists between the body of this
Agreement and any Exhibit or Attachment to it, the provisions of the body of this
Agreement will control and take precedence over the Exhibit or Attachment.
11.14 Counterparts. This Agreement may be executed in counterparts, each of
which when executed and delivered will be deemed an original, and all of which together
056577-000001 7477760.1 5
will constitute one instrument. Facsimile or electronic copy signatures shall be deemed
as valid and binding as original signatures.
11.15 Survival. All representations and warranties, indemnifications, and other
provisions which, by their nature are intended to continue, shall survive Closing and
delivery of the grant deed.
11.16 Seller's Default and Buyer's Remedies. If the sale of the Property is not
consummated due to Seller's material default hereunder that is not cured within five
business days of Notice from Buyer of Default, then Buyer shall have the right, to elect,
as its sole and exclusive remedy, to either (a) terminate this Agreement by written notice
to Seller, promptly after which the Deposits shall be returned to Buyer, (b) waive the
default and proceed to close the transaction contemplated herein. Notwithstanding
anything to the contrary contained herein, Seller shall not be deemed in default unless
and until Buyer provides Seller with written notice of such default and Seller fails to cure
such default within five business days of its receipt of such written notice.
11.17 Buyer's Default and Seller's Remedies. If the sale of the Property is not
consummated due to Buyer's material default, then Seller shall have the right, to elect, as
its sole and exclusive remedy, to terminate this Agreement by written notice to Buyer,
after which the Deposits shall be forfeited.
12. Seller's Right to Buy Back Property. If Buyer has not obtained certificate of
Occupancy within 24 months following issuance of building permits, Seller shall have the
right to buy back the Property at current fair market value or the Purchase Price,
whichever is less.
12.1 Within 180 days of the date that is 24 months from the issuance of building
permits, Seller may exercise its right to purchase by notifying Buyer in writing of its intent
to purchase. Within ten days of notice, Buyer shall execute a purchase agreement in a
form provided by Seller.
12.2 This Section shall survive the Closing.
12.3 Nothing in this Section is intended to limit any other the rights of the City or
Housing Successor, including, without limitation the rights of Code Enforcement to abate
dangerous conditions.
13. Condemnation. If, before the Closing Date, either Buyer or Seller receive notice
of any condemnation or eminent domain proceeding, or any proceeding in lieu of
condemnation being initiated against the Property, the party receiving the notice shall
promptly notify the other party of that fact. Buyer may elect within thirty (30) days after
the date the notice is received to either: (a) proceed with the purchase of the affected
portion of the Property as contemplated by this Agreement, and if so, all condemnation
proceeds shall be paid to Buyer(or assigned if not yet collected); (b) reduce the Purchase
Price by the amount of the condemnation proceeds, and if so, all condemnation proceeds
shall be paid to Seller; or (c) terminate the Agreement with respect to such portion.
056577-000001 7477760.1 6
IN WITNESS WHEREOF the Seller and Buyer have signed this Agreement on the dates
set forth below.
SELLER: BUYER:
CITY OF FRESNO, in its capacity as NOYAN FRAZIER CAPITAL, L.P.
Housing Successor to the
Redevelopment Agency of the City of
Fresno
By: C By:
Marlene Murphey, E uW Director Mehmet Noyan
Dated:_ Q_ l( , 20 --!I Dated: h-�t �' , 20 2
APPROVED AS TO FORM: By:
DOUGLAS T. SLOAN Terance/r4dier
City Att rney
Dated: 3 2094
By:
Laurie A isian-Fa ' Date
Assistant City Attorney
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By: vV Y n I VCit7 6fp
Deputy IVlrr co
7,0
056577-000001 7477760.1
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS
FOLLOWS:
APN: 468-282-21 T
056577-0000017477760.1
Tile 146--06=271083�w --
WOW Na,CAFNMIO-0910-0001-0000271953
LEGAL DESCRIF 10H
EXHIBIT"A"
THE LAND REFERRED TO HEREIN BELOW IS SnUATED IN THE CITY OF FRESNO,COUNTY OF FRESNO,
STATE OF CALIFORNIA AND E5 DESCRIBED AS FOLLOWS:
f
Lots 1, 2 and 3 In Block 74 of the TOWN (now City) of Fresno, according to the map thereof recorded
December ID,1888 in Book 4, Page 2 of Plats,records Of said Ceunty,
EXCEPTING THEREFROM the Southeasterly 4.32 inches of Lot 3 in Block 74.
APN., 468-282-21
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