HomeMy WebLinkAbout20E - AA - BRISTOL ST IMPROVEMENTSREQUEST FOR�=Y
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 19, 2019
TITLE:
APPROVE APPROPRIATION
ADJUSTMENT AND PURCHASE AND
SALE AGREEMENTS PER RFP 19-026
GENERATING $8,104,200 IN REVENUE
FOR BRISTOL STREET IMPROVEMENTS
(PROJECT NO. 11-6741)
(NON -GENERAL FUND)
(STRATEGIC PLAN NOS. 6, 1 G; 3, 2C)
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
/s/ Kristine Ridge FILE NUMBER
CITY MANAGER
RECOMMENDED ACTIONS
1. Authorize the City Manager to execute a purchase and sale agreement with Southwest Group
Properties LLC, for the sale of City -owned property located at APN's 405-252-21 and 405-252-
22 in the amount of $1,100,000, subject to non -substantive changes approved by the City
Manager and City Attorney.
2. Authorize the City Manager to execute a purchase and sale agreement with Merchant Star
International General Trading, for the sale of City -owned property located at APN's 405-272-
11, 450-272-12, 405-272-13, 405-272-14, 405-272-15, 405-272-16, 405-272-17, 405-272-18,
and 405-272-21 in the amount of $2,605,000, subject to non -substantive changes approved by
the City Manager and City Attorney.
3. Authorize the City Manager to execute a purchase and sale agreement with Merchant Star
International General Trading , for the sale of City -owned property located at APN's 004-123-
48 and 004-123-52 in the amount of $1,025,000, subject to non -substantive changes approved
by the City Manager and City Attorney.
4. Authorize the City Manager to execute a purchase and sale agreement with Merchant Star
International General Trading, for the sale of City -owned property located at APN's 015-194-37
and 015-194-40 in the amount of $1,050,000, subject to non -substantive changes approved by
the City Manager and City Attorney.
5. Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN 399-085-11 in the amount of $127,700,
subject to non -substantive changes approved by the City Manager and City Attorney.
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 2
6. Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN 004-122-39 in the amount of $257,700,
subject to non -substantive changes approved by the City Manager and City Attorney.
7. Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN's 405-073-14 and 405-073-15 in the amount
of $188,700, subject to non -substantive changes approved by the City Manager and City
Attorney.
8. Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN's 405-073-16, 405-073-17, and 405-073-18
in the amount of $287,700, subject to non -substantive changes approved by the City Manager
and City Attorney.
9. Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN's 008-231-24, 008-231-26, and 008-231-27
in the amount of $237,700, subject to non -substantive changes approved by the City Manager
and City Attorney.
10.Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN's 008-231-23 and 008-231-29 in the amount
of $237,700, subject to non -substantive changes approved by the City Manager and City
Attorney.
11.Authorize the City Manager and Clerk of the Council to execute a purchase and sale agreement
with Dustin Do, for the sale of City -owned property located at APN's 008-232-31 and 008-232-
34 in the amount of $192,800, subject to non -substantive changes approved by the City
Manager and City Attorney.
12.Authorize the City Manager to execute a purchase and sale agreement with Dustin Do, for the
sale of City -owned property located at APN 010-022-09 in the amount of $184,800, subject to
non -substantive changes approved by the City Manager and City Attorney.
13.Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APNs 010-183-01, 010-183-42, 010-183-43, and
010-183-44 in the amount of $357,700, subject to non -substantive changes approved by the
City Manager and City Attorney.
14.Authorize the City Manager to execute a purchase and sale agreement with IAS Management,
for the sale of City -owned property located at APN's 010-183-40, 010-183-41, and 010-183-42
in the amount of $251,700, subject to non -substantive changes approved by the City Manager
and City Attorney.
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 3
15. Approve an appropriation adjustment recognizing revenue in the amount of $5,498,000 in Select
Street Construction Fund revenue account for Fiscal Year 2019-20 from the sale of City -owned
property located at various locations and appropriating the same to the OCTA Bristol Street
Corridor Improvements expenditure account. Receipt of Measure M Street Construction
proceeds in the amount of $2,606,200 will be disbursed to the Orange County Transportation
Authority (OCTA).
DISCUSSION
The City is the owner of substantial real property assets and interests that were specifically
acquired for various street widening projects. Approval of recommended actions will allow the City
to sell such City -owned vacant property acquired with Orange County Transportation Authority
(OCTA) Right -of -Way restricted grant funds, and return proceeds of sale to Bristol Street
Improvement Project, and funding agency, proportionally based on match requirements, consistent
with Comprehensive Transportation Funding Program (CTFP) Cooperative Agreement C-6-0069
between respective agencies.
On April 2, 2019, the City issued Request for Proposals (RFP) 19-026 that solicited the sale and
development of eighty-eight (88) individual properties that were grouped into twenty-two (22)
combined properties with discreet parcel identification numbers (Parcel IDs) and detailed in Exhibit
1 and the table below. These parcels were combined into larger residential (10 parcels),
commercial (9 parcels), and professional office (3 parcels) lots to provide the greatest public benefit
and to ensure that the lots met the minimum development standards based on zoning.
The properties that are the subject of the RFP are leftover parcels from full parcel acquisitions that
were originally made for street -widening projects now completed. The full parcel acquisitions were
made following the City's environmental analysis that the project impacts could not be adequately
mitigated if only partial acquisitions were made. When full acquisitions are made under these
circumstances, some leftover land ordinarily results. These parcels have remained vacant since
project completion, and have always been held for the purpose of exchange only.
To provide an opportunity for all interested parties to submit proposals, RFP was solicited
electronically via the City's web -based electronic procurement system, PlanetBids. Through the
PlanetBids online portal, vendors may register to receive notifications on all current and future City
projects, as well as download RFP documents, receive project updates, and submit proposals
electronically. A total of 147 vendors were notified of the project via PlanetBids, and 51 prospective
bidders downloaded the RFP document. On May 29, 2019, 47 proposals were received,
accompanied by $260,459 in deposit checks (approximately 1 % of proposed bid amounts) from 11
vendors. Out of the RFP's 22 parcel IDs, six (6) combined properties did not receive proposals.
During the Evaluation process, one proposal was deemed non -responsive based on zoning
requirements delineated in the RFP.
The proposals were evaluated and ranked by a review committee comprised of representatives
from Public Works Agency, Community Development Agency, Planning and Building, and Finance
Management Services. Ranking criteria included Project Team, Experience, Proposed
Development Concept, and Financial Capacity; Bid Amount and Deposit Verification; Fiscal and
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 4
Economic Benefit Analysis; and Community Benefit for both Commercial / Professional and
Residential zoned proposals. The ranking of the firms is as follows:
Parcel ID
Entity
Proposed Development
Purchase
Price
1
C-1
Southwest Group
Properties
Retail Drive-thru (Starbucks)
$1,100,000
2
C-2
Merchant Star
International General
Trading
Multi -Tenant Restaurant
$2,605,000
3
C-3
Merchant Star
International General
Trading
Restaurant
$1,025,000
4
C-6
Merchant Star
International General
Trading
Multi -Tenant Restaurant
$1,050,000
6
R-1
IAS Management
Single Family Residence
$127,700
7
R-2
IAS Management
Single Family Residence + ADU
$257,700
8
R-3
IAS Management
Single Family Residence
$188,700
9
R-4
IAS Management
Duplex
$287,700
10
R-5
IAS Management
Single Family Residence + ADU
$237,700
11
R-6
IAS Management
Single Family Residence + ADU
$237,700
12
R-7
DVD Construction
Single Family Residence
$192,800
13
R-8
DVD Construction
Single Family Residence
$184,800
14
R-9
IAS Management
Triplex
$357,700
15
R-10
IAS Management
Single Family Residence + ADU
$251,700
Total
$8,104,200
Distribution of Funds
Estimated Proceeds for Bristol Improvements
$5,498,000
Estimated Proceeds to be Returned to Funding Agency (OCTA)
$2,606,200
The top -scoring proposals demonstrated necessary capacity and presented a diverse mix of
development concepts consistent with current zoning as required by RFP. The bid offers received
were reasonable and within industry standard and the above -recommended proposals were found
to provide the best value for the City of Santa Ana, both in the short-term and long-term benefits.
Approval of Recommended Actions No. 1-15 will enhance community satisfaction with reduction in
neighborhood blight, revitalize neighborhoods, and reduce liability to the City and community in
general. The estimated economic development benefits that will occur as a result of activation of
these vacant lots will promote revenue generating developments, create new local jobs, and
generate new sales tax revenues. Disposing of these properties will generate sustainable City
general fund revenues with increased property tax rolls and additional utility user taxes collected
on an annual basis in perpetuity. The following table summarizes key statistics:
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 5
KEY PROJECTED STATS
Estimated Construction Cost
$10,338,787
Estimated Jobs Created (Construction)
72
Estimated Property Value for Tax
Purposes
$21,410,844
Estimated Taxable Sales Revenue
(annual)
$14,087,499
Estimated Taxable Revenue
Annual Property Tax Value (1.1%)
$228,092
x 10 years
$2,141,084
Annual Sales Tax Value (9.25%)
$1,303,094
x 10 years
$13,030,937
Total Estimated 10-Year Taxable
Revenue
$15,172,021
*A portion of the taxable revenue amount will be allocated to the City of Santa Ana based on
property and sales tax formulas
If approved, the escrow period will commence Wednesday, November 20, 2019 and projected to
close on or before end December 20, 2019. Conditions will be imposed in the Sale Agreements for
each property requiring each successful bidder to complete the proposed improvements within 36
months from close of escrow for commercial developments and 18 months for residential.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #6 — Community Facilities &
Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City
assets), Strategy G (develop and implement the City's Capital Improvement Program in
coordination with the Community Investment and Deferred Maintenance Plans).
Approval of this item also supports the City's efforts to meet Goal #3 — Economic Development,
Objective #2 (create new opportunities for business/job growth and encourage private development
through new General Plan and Zoning Ordinance policies), Strategy C (support business
development and job growth along transit corridors through the completion of critical transit
plans/projects).
ENVIRONMENTAL IMPACT
In 1990, City Council approved the Bristol Street Final Environmental Impact
Statement/Environmental Impact Report (FEIS/EIR No. 89-01). On June 3, 2014, the City Council
approved an Addendum to the FEIS/EIR pursuant to the California Environmental Quality Act to
account for several minor design modifications in Phase IIIB.
FISCAL IMPACT
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 6
The revenue generated will be used to reimburse project expenditures and replenish grants used
on acquisition costs, as well as fund additional public improvements along Bristol Street. The sale
of these properties would lead to other significant economic activity spurred from the development
of various projects on each parcel ID, such as creating local jobs, sales tax boosts, and increased
property tax that will be realized by the City in perpetuity. In addition, the City will be relived from
the continued maintenance, clean up, and liability from owning these vacant parcels.
Approval of the recommended Appropriation Adjustment (Recommended Action No. 15) will
recognize receipt of $5,498,000 into the Select Street Construction Fund revenue account (No.
05917002-57071) and appropriate the same into the OCTA Bristol Street Corridor Improvements
Fund expenditure account (No. 05917661-66220).
These funds will be available for expenditure on the Bristol Street Improvement Project. The
remaining proceeds of $2,606,000 will be received in the Measure M Street Construction Fund
(Account No. 03201001-20215) for disbursement to OCTA, consistent with Cooperative Agreement
C-6-0069.
The table below summarizes the sales price, Bristol revenue and payments to OCTA.
Parcel
ID
Sale Price
Bristol Improvement Fund
(Account#
05917661-66220)
Reimburse Funding
Agency
(Account#
03201001-20215)
C-1
$1,100,000
$352,000
$748,000
C-2
$2,605,000
$833,600
$1,771,400
C-3
$1,025,000
$1,025,000
C-6
$1,050,000
$1,050,000
R-1
$127,700
$40,864
$86,836
R-2
$257,700
$257,700
R-3
$188,700
$188,700
R-4
$287,700
$287,700
R-5
$237,700
$237,700
R-6
$237,700
$237,700
R-7
$192,800
$192,800
R-8
$184,800
$184,800
R-9
$357,700
$357,700
R-10
$251,700
$251,700
$8,104,200 $5,498,000 $2,606,200
Real Property Purchase Agreements per RFP 19-026
November 19, 2019
Page 7
APPROVED AS TO FUNDS AND ACCOUNTS:
Fuad S. Sweiss, PE, PLS
Kathryn Downs, CPA
Executive Director
Executive Director
Public Works Agency
Finance and Management Services Agency
FSS/EWG/JG/ST/HG
Exhibits: 1.
RFP 19-026 — Sale of City Owned
Vacant Properties
2.
Purchase and Sale Agreement —
APN 405-252-21 and 405-252-22
3.
Purchase and Sale Agreement —
APN 402-272-11 to 402-272-18; and 402-272-21
4.
Purchase and Sale Agreement —
APN 004-123-48 and 004-123-52
5.
Purchase and Sale Agreement —
APN 015-194-37 and 015-194-40
6.
Purchase and Sale Agreement —
APN 399-085-11
7.
Purchase and Sale Agreement —
APN 004-122-39
8.
Purchase and Sale Agreement —
APN 405-073-14 and 405-073-15
9.
Purchase and Sale Agreement —
APN 405-073-16 to 405-073-18
10.
Purchase and Sale Agreement —
APN 008-231-24 to 008-231-26
11.
Purchase and Sale Agreement —
APN 008-231-23 and 008-231-29
12.
Purchase and Sale Agreement —
APN 008-232-31 and 008-232-34
13.
Purchase and Sale Agreement —
APN 010-022-09
14.
Purchase and Sale Agreement —
APN 010-183-42 to 010-183-44; and 010-193-01
15.
Purchase and Sale Agreement —
APN 010-183-40 to 010-183-42
REQUEST FOR PROPOSALS (RFP)
FOR
SALE OF CITY OWNED VACANT PROPERTIES
RFP NO.: 19-026
CITY OF SANTA ANA
Santa Ana Public Works Agency
20 Civic Center Plaza
Santa Ana, CA 92701
Jason Gabriel
Project Manager
VA
for Release:
Sweiss, PE, PLS
,ecutive Director
c Works Agency
KEY RFP DATES (Subiect to change at discretion of Ci
Issue Date: Tuesday, April 2, 2019
Pre -Proposal Meeting: April 16, 2019 at 1:30 PM (Location to be posted on PlanetBids)
Deadline for Submitting Questions: April 24, 2019
Proposal Due Date: May 29, 2019; at 4:00 PM
Projected Award Date: Varies
EXHIBIT 1
NOTICE INVITING PROPOSALS
NOTICE IS HEREBY GIVEN that the City of Santa Ana will receive Proposals from qualified
individuals or entities (Proposers) for the development of various vacant properties in the City of
Santa Ana.
Responses to this Request for Proposals (RFP) must be submitted electronically to the
PlanetBids system no later than May 29, 2019 at 4:00 PM. Proposals received after this
date/time will not be considered. It is the responsibility of the Proposer to ensure that any Proposals
submitted have sufficient time to be received by the City of Santa Ana prior to this Proposal due
date and time.
Respondents are invited and encouraged to attend an optional pre -submittal meeting. The date
and time of the meeting is April 15, 2019 at 1:30 PM.
Additionally, it is a requirement that hard copy Proposals shall also be sent by courier service or
hand delivered in an enclosed sealed envelope and marked clearly with the following information
formatted exactly as shown below on or before the deadline:
"SEALED PROPOSAL FOR
SALE OF CITY OWNED VACANT PROPERTIES
RFP NO. 19-026
IN THE CITY OF SANTA ANA
DO NOT OPEN WITH REGULAR MAIL."
CITY OF SANTA ANA
ATTN.: SEAN THOMAS
PUBLIC WORKS AGENCY; M-36
20 CIVIC CENTER PLAZA
SANTA ANA, CA 92701
For further instructions regarding hard copy submission Proposals and Deposits, refer to
PlanetBids.
All notifications, requests for information, updates and addenda will be posted online on
PlanetBids at https://www.planetbids.com/portal/vortal.cfm?CompanvID-20137. Proposers shall
be responsible for monitoring the site to obtain information regarding this solicitation. Failure to
respond to required updates may result in a determination of a nonresponsive qualification.
City of Santa Ana RFP 19-026
Page ii
TABLE OF CONTENTS
I. INTRODUCTION / PROJECT DESCRIPTION
II. INSTRUCTIONS TO PROPOSERS
A. CITY RESPONSIBILITIES
B. PROPOSER RESPONSIBILITIES
C. REQUEST FOR INFORMATION OR CLARIFICATION
D. ADDENDA
E. PRE -PROPOSAL MEETING
r'. CITY RIGHT TO REJECT
G. BID PROTESTS
III. SUBMITTAL REQUIREMENTS AND CONDITIONS
A. GENERAL
B. PROPOSAL CONTENTS
C. CONDITIONS
1
2
3
IV. PROPOSAL REVIEW 9
A. EVALUATION AND RATING
B. SELECTION
V. PURCHASE AND SALE AGREEMENT
A. EXECUTION OF AGREEMENT
B. REQUEST FOR COUNCIL ACTION
VI. PUBLIC RECORDS
VII. CITY INFORMATION
VIII. APPENDIX
ATTACHMENT 1: PROJECT LOCATION EXHIBITS
ATTACHMENT 2: PROPERTY BID FORM
ATTACHMENT 3: SAMPLE RIGHT OF ENTRY AGREEMENT
ATTACHMENT 4: SAMPLE PURCHASE AND SALE AGREEMENT
9
10
10
City of Santa Ana RFP 19-026
Page iii
L INTRODUCTION / PROJECT DESCRIPTION
A. NATURE OF WORK
The City of Santa Ana is seeking qualified individuals or entities (Proposers) for the
purchase and development of 22 vacant properties (Attachment 1) in the City of Santa
Ana.
B. BACKGROUND
The City's remnant parcels (Attachment 1) for disposition associated with this RFP were
all acquired for various public transportation improvement projects using Federal and
State grants. These properties are considered exempt per the California Surplus Lands Act
(SLA) as explained herein. For purposes of the SLA, surplus land means "land owned by
any local agency, that is determined to be no longer necessary for the agency's use, except
property being held by the agency for the purpose of exchange." All of the properties
listed under this RFP are remnant parcels from right-of-way transactions that have never
been put to any municipal or other use, and were being held solely for purposes of
exchange. The proceeds from the sale of these properties are considered as restricted funds
and must be used to reimburse the granting agencies, and/or to fund further improvements
within the same or similar project.
There are eighty-eight (88) individual parcels that have been combined into twenty-two
(22) combined parcels. These parcels were combined into these larger residential (10
parcels), commercial (9 parcels), and professional office (3 parcels) lots to provide the
greatest public benefit and to ensure that the lots met the minimum development standards
based on zoning.
Proposals for developing each parcel listed in this RFP will be accepted provided that they
are generally consistent with the existing zoning for each site. Proposal's content should
be complete and reflect the specific ownership, financing, and land use features of each
proposed project. Property zoning and size (sq. ft.) for each site is shown on the Property
Location Exhibits in Attachment 1.
C. PROPOSER RESPONSIBILITY
Each Proposer must be capable of providing experienced, knowledgeable and professional
team to deliver a complete project. The Proposer shall be responsive and fulfill all
requirements of the RFP. The Proposer shall provide adequate staffing levels for each
project at all times and adhere to established schedules. The Proposer shall be
knowledgeable of and comply with federal, state and local laws, including the Santa Ana
Municipal Code, as it applies to their Proposal.
D. NUMBER OF PROPOSALS AND SIGNATURE
A complete Proposal package shall be submitted on PlanetBids on or before the deadline
listed on the cover of this REP.
Additionally, five (5) hard copies of the electronic submission on PlanetBids shall be
delivered to the City of Santa Ana to the location noted on the Notice Inviting Proposals.
Hard copy Proposals and Deposits shall be submitted per instructions on PlanetBids.
City of Santa Ana RFP 19-026
Page 1
One of the hard copies shall be marked as "ORIGINAL" and shall be wet signed by a
company official with the power to bind the company and submitted to the City of Santa
Ana. Please be explicit in identifying the appropriate contractual person with legal
authority to bind the company for contract execution purposes.
The Proposal shall be limited to a maximum of (10) double -sided pages (excluding front
and back covers, section dividers and attachments such as resumes, forms, and exhibits).
Font size shall be minimum 11-point Arial. Proposal exhibits shall be maximum 11" x
17".
Proposers may submit Proposals for a single or multiple properties. However, a
separate Proposal is required for each parcel.
E. PROPOSAL EVALUATION AND RATING
The criteria for evaluating the Proposals submitted will take into consideration the
following:
Scoring Criteria
Commercial /
Professional
Residential
Project Team, Experience, Proposed
Development Concept, & Financial Capacity
30%
30%
Bid Amount and Deposit Verification
40%
60%
Fiscal and Economic Benefit Analysis
20%
N/A%
Community Benefit
10%
10%
TOTAL: 100% 100%
Staff shall review all Proposals to determine if the RFP Process requirements, as outlined
in this document, are met. All Proposals that meet the requirements will be deemed
responsive and will be evaluated by a Review Panel. The Review Panel will include
representatives from various City Departments, such as the Public Works Agency,
Planning and Building Agency, Community Development Agency, and Finance and
Management Services Agency. The Review Panel will evaluate Proposals based on the
responsiveness to the RFP, which includes adherence to outlined directions, format, and
the City evaluation criteria set forth above and in Section III of this REP.
II. INSTRUCTIONS TO PROPOSERS
A. CITY RESPONSIBILITIES
The City will provide information in its possession relevant to preparation of required
information in RFP. The City will provide only the staff assistance and documentation
specifically referred to herein.
City of Santa Ana RFP 19-026
Page 2
B. PROPOSER RESPONSIBILITIES
Point of Contact: The selected Proposer will assume responsibilities for all services in its
Proposal. The selected Proposer shall identify a sole point of contact with the greatest
knowledge in regard to the required service operations and contractual matters, including
payment of any and all charges resulting from the Agreement.
C. REQUEST FOR INFORMATION OR CLARIFICATION
All questions or requested clarifications shall be made only in writing to the Q&A
section located in PlanetBids no later than date listed on the cover of the REP. No verbal
requests or responses will be accepted. Significant interpretations or clarifications will
be addressed via addenda to this REP.
D. ADDENDA
Any changes in RFP from the date of release to the date of submittal of
inquiries/questions will be summarized in an addendum or amendment to the REP.
Notification of such addendum or amendment shall be posted on PlanetBids at
httys://www.planetbids.com/portal/portal.cfm?CompanvID-20137 as set forth in the
Notice Inviting Proposals. Addenda shall become part of the agreement documents.
E. PRE -PROPOSAL MEETING
There will be a non -mandatory pre -Proposal meeting. The meeting date and time are
listed on the cover page of this RFP and the location will be posted on PlanetBids. The
meeting will include discussion of the project scope and a question- and -answer
session. It is highly recommended that the Proposer's key team members attend this
meeting. Attending the meeting is not mandatory. Any significant interpretations or
clarifications will be addressed via addenda to this RFP, as described above in "Section
D: Addenda."
F. CITY RIGHT TO REJECT
The City reserves the right to reject any or all Proposals submitted and no representation
is made hereby that any Purchase and Sale Agreement will be entered into pursuant to
this RFP or otherwise.
G.BID PROTESTS
City staff will endeavor to expedite the review and evaluation of Proposals. Proposals
will be evaluated and ranked according to the criteria described in this REP. Each
Proposer will receive a notification in PlanetBids from the City whether their Proposal
was accepted or rejected. Proposers with concerns or rebuttal of any staff determination
of non -responsiveness may submit, in writing within five (5) business days, to the
Project Manager, any concerns regarding the RFP processor staff determination. Such
writing shall be considered by the City Manager or his designated representative, and
may be acted upon within five (5) business days. If no action is taken within such time,
there shall be no change to the staff determination. All successful Proposals will be
presented to the City Council along with staff recommendations for final approval.
City of Santa Ana RFP 19-026
Page 3
III. SUBMITTAL REQUIREMENTS AND CONDITIONS
A. GENERAL
L The number of Proposal Copies is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION.
IL Deadline:
Proposals are due to the City of Santa Ana at the date, time, and location specified
in the Notice Inviting Proposals.
B. PROPOSAL CONTENTS
The Proposal format and page limitation, if any, is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION.
The information being requested by this RFP is necessary for the City to adequately
evaluate the Proposals. Failure to supply the requested information may result in
rejection of the Proposal.
➢ Project Narrative & Preliminary Site Plan for Proposed Development
1. A cover page that includes the following information:
a. Proposer's name and mailing address
b. Proposer's current legal status: corporation, partnership, sole proprietor,
non-profit, etc.
c. Contact person's name, title, phone number and e-mail address
d. Signature of authorized corporate officer for each entity proposing as a
partnership or team shall be signed by a company official with the power to
bind the company
2. A Letter of Introduction — Include a summary of the respondent's basic
qualifications, experience, past projects of similar nature and size, and reasons
for interests in this opportunity. The letter must be signed by an individual
authorized to make legally binding commitments for the entity.
3. Identify the entities that will be involved, including the following information:
a. An organizational structure that describes roles each entity will play (e.g.,
developer, architect, building owner, property manager, tenant, professional
consultant).
b. A summary of the developmentteam's past experience in working together
to develop similar projects, including location, type of development,
Proposer's role(s), cost of project, funding sources, status of project, and
information about any continued financial or operating interest in each.
c. Include specific previous relevant experience with public entities,
especially within Orange County, including reference contact information.
The City may ask for supporting documentation substantiating claims of
previous experience.
City of Santa Ana RFP 19-026
Page 4
d. The purchase and sale agreement shall be in the Proposers name submitted
in the bid Proposal. During the agreement period, the Proposer/buyer may
not assign its rights or obligations under an agreement without the prior
written consent of the City, which consent may be withheld in the sole
discretion of City. The Proposer may assign its rights and obligations to 1)
a partnership of which the Proposer or an affiliate entity is the general
partner, 2) to a limited liability company of which the Proposer or an
affiliate entity is the managing member and which the Proposer or an
affiliate entity directly or indirectly holds an ownership interest, or 3) any
other entity in which Proposer directly or indirectly has an ownership
interest and is responsible for managing the day to day activities of such
entity.
4. A detailed and concise project description of the proposed development
including narrative, preliminary site plan and renderings if available (e.g., size
of building and square footage of specific components, nature of improvements,
number of parking spaces, development plan, anticipated materials and design
style, circulation patterns, loading/service provisions) to be built on the site.
Information should be included about the anticipated type of tenants expected.
For all projects, the narrative must also address the development concept for the
site, current zoning, and anticipated development costs.
5. A letter of intent from tenants or other information documenting the demand for
the proposed space, if available.
6. A proposed timeframe for the development, including identification of any
conditions that must be met before the Proposal can become a reality. The
schedule should include the time needed to obtain financing, complete design
and secure permits and entitlement approvals, prepare the site, start and complete
construction, and start and complete occupancy and/or lease -up.
7. Provide evidence of sufficient financial strength to undertake and successfully
complete a project of this scale. The preferred evidence is recent financial
statements for respondent with an accompanying letter from a certified public
accountant verifying that the financial statements were prepared in accordance
with Generally Accepted Accounting Principles. The City, at its sole discretion,
may consider alternative evidence of sufficient capacity to undertake a
development of the proposed scope:
(NOTE: alternative evidence must be approved by the City prior to respondent's
submission of a response to this REP.
8. A description of proposed project financing structure and anticipated return (e.g.
anticipated sources and proportions of debt/equity and financial return threshold
required by respondent).
9. Please indicate whether fundraising to finance all or a portion of development
costs is proposed, and if so, in what amount.
City of Santa Ana RFP 19-026
Page 5
10. Identification of any projects/financings upon which the respondent team or its
members has collectivity or individually defaulted.
For any Proposal that is selected for recommendation to City Council, additional
information including complete financial statements for the last three years for
all team members who will retain an ownership interest in the project may be
required.
11. Any other information that would help City staff understand and evaluate the
concepts proposed.
➢ Bid Amount and Deposit Verification
A completed Property Bid Form (Attachment 2). Proposals that do not include
an executed Property Bid Form, including initials acknowledging each page,
shall be considered incomplete which will be grounds for rejection of the entire
Proposal.
It is not required that the bid amount match or exceed the "Appraised Amount"
listed on the Property Bid Form.
2. Each bid must be accompanied by a deposit in the form of a cashier's check,
treasurer's check or bank draft of any state or national bank, payable to the City of
Santa Ana, in the amount of One Percent (1%) of the total bid amount for each
parcel. If bidding on multiple properties, multiple deposit checks will be required.
These deposits shall be submitted at the same time as the hard copy Proposals.
➢ Fiscal and Economic Benefit Analysis (Commercial and Professional Office
Proposals Only)
3. A development budget showing the detailed sources and uses of all funds
(including debt, equity and other funding sources) to acquire and develop the site.
Ensure that the capital pro forma breaks out project costs to indicate all developer
and professional fees. Information as to the status of securing those funds should
be included, and inclusion of a conditional financing commitment is strongly
encouraged. If the project includes multiple uses, the development budget should
be broken down by the component uses (commercial, office, etc.). An electronic
and editable copy of the development budget and pro forma including all
underlying assumptions and equations in .xls format shall be provided if requested
by the City.
4. An estimate of the taxable value upon completion and annual real estate taxes. Also
include a description of the additional benefits that will result from the
development, such as the jobs created or retained (including the estimated number,
type and wage levels of both full time and part time positions within the first five
years of development).
City of Santa Ana RFP 19-026
Page 6
➢ Community Benefit
5. Describe how the proposed development will serve the local community.
Community benefits may be achieved through developing or increasing access to
the following:
• Affordable housing, with a focus on community -controlled,
permanently affordable housing, for example a community land
trust;
• Affordable, healthy food retail;
• Community gardens / pocket parks, children's playground, etc;
• Community health clinics;
• School facilities;
• Renewable energy infrastructure;
• Public transportation;
• Green space, parks and recreation centers;
• Affordable childcare;
• Youth and senior facilities and services;
• Community agriculture;
• Development of land by a community land trust;
• Hiring Local workforce for construction and ongoing operations;
6. Identify any other business or property holdings in the greater Santa Ana Region
and participation in any local business, business partnerships, or community based
partnerships in this area
C. CONDITIONS
All information contained in this RFP are believed to be accurate; however, no
representation or warranty is made with respect thereto.
1. Additional Deposit:
The development team whose Proposal is ultimately selected by the City
Council must make the required down payment of Ten Percent (10%)to the
selected escrow company within Ten (10) days of City Council Approval.
After the deposit of Ten Percent (10%) is made, the initial One Percent (1%)
deposit will be returned. Additionally, the City will return the One Percent
(1%) deposit submitted from all Proposers who are not selected by City
Council for award.
2. Escrow:
Following City Council approval of the sale of the property, escrow shall
commence. The remainder of the bid amount shall be due prior to close of
escrow. Closing on the property sale must be completed within thirty to forty-
five (30 - 45) days of escrow opening or the Ten Percent deposit (10%) may be
forfeited. Upon opening of escrow, the buyer will agree in writing to forfeit and
release the deposit money to the City in the event of buyer default. The
purchaser shall pay all escrow related fees, including the seller's portion as
well as documentary fees, surtaxes, and all recording fees, etc.
City of Santa Ana RFP 19-026
Page 7
3. Due Diligence Period:
Potential bidders may arrange for contractors, consultants, architects and
others they deem necessary to inspect the properties they would like to submit
bids for. Bidders are inspecting the properties at their own risk, and they are
fully responsible and liable for their personnel, investors, inspectors, guests
and invitees of all types while at the properties. Bidders agree to accept this
liability at all times during any property inspection. Inspections are
recommended but not mandatory. Potential bidders shall conduct their own
due diligence at their own cost prior to submitting a bid.
In order to conduct a site investigation, a no -fee Right of Entry Permit shall be
required (Attachment 3). If desired, submit form to PWAPrope , Sale ,santa-
ana.or.
4. Warranties of Bum
Buyer will warranty a commitment of milestones for the entitlement process,
as well as construction of proposed development to be specified in the actual
purchase and sale agreement. Refer to Sample Agreement (Attachment 4) for
specific provisions.
5. Withdrawal of Bids:
Proposers may withdraw their Proposals at any time prior to the deadline for
Proposal submittal. After the deadline, the Proposal will constitute an
irrevocable offer for a period of 180 days. Once opened, Proposals become a
record of the City and will not be returned to the Proposer. Any Proposers that
withdraw bids after the deadline but prior to council award shall forfeit their
initial One Percent (1%) deposit.
6. Bid Postponement / Cancellation:
The City may, at its sole and absolute discretion, reject any bids that are not
submitted in accordance with the terms in this Bid Solicitation. The City may
re -advertise this Bid; postpone or cancel, at any time during this Bid process;
or waive any irregularities in this Bid or in the Proposals received as a result
of this Bid.
7. Costs Incurred by Proposers:
All expenses involved with the preparation and submission of bids to the City,
or any work performed in connection therewith, including participating in any
presentations or negotiations related to this REP, shall be borne by the
Proposer(s). No rights of ownership will be conferred until title of the
property is transferred to the successful bidder. All fees for copying and
reproduction services for items listed herein are nonrefundable.
8. Business Entity Registration:
It is the responsibility of the Proposer to update information concerning any
changes, such as new address, telephone number, etc.
9. Oral Presentations:
The City does not anticipate that oral presentations will be required of
Proposers. The committee reserves the right to interview any Proposer, begin
City of Santa Ana RFP 19-026
Page 8
negotiations and enter into an agreement without interview or further
discussions.
10. Pronerty Records:
The properties were acquired as part of various City improvement projects and
are being sold "AS IS". The City of Santa Ana does not provide an abstract of
title or survey of the property. Interested parties are able to review all available
property records, by appointment.
11. Broker Fees:
The City intends on negotiating directly with Proposers on the sale of these
properties. Proposers may employ and compensate brokers at their own
expense.
IV. PROPOSAL REVIEW
A. EVALUATION AND RATING
The criteria for evaluating the Proposals are specified in: RFP SECTION I -
INTRODUCTION / PROJECT DESCRIPTION.
B. SELECTION
The committee may interview the top ranking Proposers. Staff will recommend
authorization of a purchase and sale agreement to the Proposer who best meets the
scoring criteria.
V. PURCHASE AND SALE AGREEMENT
A. EXECUTION OF AGREEMENT
The submitted Proposal will be the basis for any negotiation of final terms which
will lead to a completed agreement ready for execution based on the sample
Agreement attached herein as Attachment 4 in the Appendix.
B. REQUEST FOR COUNCIL ACTION
Following evaluation and rating by the Proposal review committee, the Project
Manager will bring forth the recommended Proposals to City Council for
authorization.
VI. PUBLIC RECORDS
All data, documents and other products used, developed, or produced during
response preparation of the RFP will become property of the City. All responses to
the RFP shall become property of the City. Proposer information identified as
proprietary information shall be maintained confidential, to the extent allowed
under the California Public Records Act.
City of Santa Ana RFP 19-026
Page 9
VIL CITY INFORMATION
BRISTOL STREET IMPROVEMENTS
The majority of the parcels are located on Bristol Street. Within the City of Santa Ana, Bristol
Street is classified as a north -south Major Arterial per the City's General Plan Circulation
Element (GPCE) and the County of Orange's Master Plan of Arterial Highway (MPAH). Due
to growth experienced during the late 1980's resulting in traffic congestion and safety concern
with lack of bike lane, the City of Santa Ana proposed to improve Bristol Street providing
adequate vehicular capacity and adding bike lanes from Warner Ave. to Memory Lane.
The proposed improvements have been designed utilizing Complete Streets principals to
provide safe, comfortable, and convenient travel for all users — pedestrians, bicyclists, transit
riders, and motorists.
Safety: The narrow travel lanes and raised median will deter speeding through the project
segment; Landscape parkways will provide a safe buffer between pedestrians and motorists;
Bicyclists will travel in a designated bike lane instead of mixing flow with vehicles and
pedestrians; longer raided median and cul-de-sac streets are potentially reduced controlled left
turn movements and improved traffic flow.
Accessibility: Installation of wider sidewalks, ADA compliant curb ramps, and bike lanes will
greatly improve accessibility for pedestrians and bicyclists.
Traffic Flow: Improving the remaining phases of Bristol Street will complete the ultimate
roadway cross section with six lanes between Warner Ave to 17th St. Ultimately, the proposed
Bristol Street improvements will provide safe mobility for all users while improving traffic
flow.
Development along the Bristol Street Corridor must adhere the Bristol Street Specific Plan. The
document can be accessed via the following link: httns://www.santa-ana.org/yb/nlanning-
division/zoning-documents
TRANSIT ZONING CODE
Some of the parcels are within the boundaries of the Transit Zoning Code, it is adjacent to the
boundaries where the code impacts future development of the Downtown. In 2010, the City
adopted Specific Development 84 (Transit Zoning Code), a comprehensive land use plan
that incorporates approximately 450 acres extending from Grand Avenue to the City's
downtown core. The Transit Zoning Code (TZC) is designed to provide the zoning necessary
to supportthe long-term development of a successful transit program. The completed document
can be viewed in its entirety at:
httn://www.ci.santa-ana.ca.us/nba/nlanning/Transit Zoning Code.asn
The Transit Zoning Code encourages transit -oriented development containing a mix of
residential, commercial, and professional uses to achieve the City's and the region's goals
of establishing housing adjacent to transit. The Transit Zoning Code area is primed for
increased growth given its proximity to major transit systems and its adjacency to existing
residential communities, creating amenity -enriched connections between the government center
and rail station, and improving area -wide walkability.
City of Santa Ana RFP 19-026
Page 10
OCSTREETCAR
The cities of Santa Ana and Garden Grove in cooperation with the Orange County
Transportation Authority (OCTA) are constructing a fixed guideway/streetcar transportation
system between the Santa Ana Regional Transportation Center (SARTC) and Garden Grove.
The system will provide transit services for commuters travelling from the train station to
employment and activity centers in the heart of Orange County and for residents and visitors
alike travelling to destinations throughout the area.
The OC Streetcar will increase transportation options and provide greater access along its 4.15-
mile route (in each direction) along Santa Ana Boulevard, 4th Street, and the Pacific Electric
right-of-way to Harbor Boulevard in Garden Grove.
The OC Streetcar will provide the some of the sites with easy access to both the Civic
Center and downtown. More information regarding the OC Streetcar can be viewed at
http://www. octa. net/Proi ects-and-Programs/All-Projects/Rail-Prof ects/OC-Streetcar/
City of Santa Ana RFP 19-026
Page 11
Appendix
ATTACHMENT
PROJECT LOCATION EXHIBITS
0 i Y i
Miles
City of Santa Ana RFP 19-026
Attachment
i F(-,FNn P
_ EXISTING ARCEL C1
PROPERTY LINE
COMBINED ZONING APPROX. AREA
PARCEL
COMMERCIAL 18,290 SF
H
W
W
J
0
Ir
EXISTING
PROPERTY LINE
COMBINED
PARCEL
WASHINGTON AVENUE ;
PARCEL C2
ZONING APPROX. AREA
COMMERCIAL 48,597 SF
1.1 AC
9TH STREET
CIVIC CENTER DRIVE
i F(-,FNn P
_ EXISTING ARCEL C3
PROPERTY LINE
COMBINED ZONING APPROX. AREA
PARCEL
r - POTENTIAL EDISON COMMERCIAL 24,176 SF
L _ I EASEMENT
WILLITS STREET
EXISTING
PROPERTY LINE
COMBINED
PARCEL
CAMLE STREET
PARCEL C4
ZONING APPROX. AREA
COMMERCIAL 48,287 SF
1.1 AC
720 ST.
109 HIGHLAND STREET
_..8._.. Sr
i) am aw
34
8= S
S.
I F(;FNF)
EXISTING
PROPERTY LINE
COMBINED
PARCEL
`yam.,. •� �IRT_
r
PARCEL C5
ZONING APPROX. AREA
COMMERCIAL 49,403 SF
1.13 AC
BROOK STREET
N
Z
_ EXISTING
PROPERTY LINE
COMBINED
PARCEL
PARCEL C6
ZONING I APPROX. AREA
COMMERCIAL 1 17,415 SF
EXISTING
PROPERTY LINE
PARCEL C7
EDCOMBINED ZONING
PARCEL
COMMERCIAL
APPROX.AREA
12,734 SF
I F(;FNI):
_ EXISTING
PROPERTY LINE
COMBINED
PARCEL
\
3RD STREET
-kimL-- I -TT
PARCEL C8
ZONING APPROX. AREA
COMMERCIAL 21,313 SF
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724 RISTOL ST.
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EXISTING
PROPERTY LINE
COMBINED
PARCEL
r iPOTENTIAL EDISOI
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PARCEL P1
ZONING APPROX. AREA
PROFESSIONAL 17,164 SF
Aw
who
PINE STREET
F(;FNF)PARCEL P2
EXISTING
PROPERTY LINE
COMBINED ZONING APPROX. AREA
PARCEL 36,504 SF
PROFESSIONAL
0.84 AC
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EXISTING
PROPERTY LINE
ElCOMBINED
PARCEL
10TH STREET
fmmobt AA..a6d"ift AM AWOL
Y
PARCEL P3
ZONING I APPROX. AREA
PROFESSIONAL 1 11,868 SF
EXISTING
PROPERTY LINE
COMBINED
PARCEL
18TH STREET
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J
co Lo
00
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PARCEL R1
ZONING I APPROX. AREA
RESIDENTIAL 1 4,365 SF
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9TH STREET
F(;FNF)PARCEL R2
_ EXISTING
PROPERTY LINE
COMBINED ZONING APPROX. AREA
PARCEL
RESIDENTIAL 7,755 SF
.J
0
Fr
00
7TH Sl
EXISTING
PROPERTY LINE
COMBINED
PARCEL
PARCEL R3
ZONING I APPROX. AREA
RESIDENTIAL 1 5,949 SF
EXISTING
PROPERTY LINE
PARCEL R4
EDCOMBINED ZONING
PARCEL
RESIDENTIAL
APPROX.AREA
9,355 SF
EXISTING
PROPERTY LINE
COMBINED
PARCEL
PARCEL R5
ZONING I APPROX. AREA
RESIDENTIAL 1 6,513 SF
I F(;FNF)
_ EXISTING
PROPERTY LINE
COMBINED
PARCEL
_iw
CHESTNUT AVENUE
PARCEL R6
ZONING APPROX. AREA
RESIDENTIAL 6,469 SF
I F(;FNF)
EXISTING
PROPERTY LINE
COMBINED
PARCEL
_>`
CHESTNUT AVENUE
PARCEL R7
ZONING I APPROX. AREA
RESIDENTIAL 1 4,701 SF
I
RAYMAR STREET
I F(;FNF)
EXISTING
PROPERTY LINE
COMBINED
PARCEL
PARCEL R8
ZONING APPROX. AREA
RESIDENTIAL 4,595 SF
F(;FNF)P
_ EXISTING ARCEL R9
PROPERTY LINE
COMBINED ZONING APPROX. AREA
PARCEL
RESIDENTIAL 12,071 SF
m
I F(;FNI):
EXISTING
PROPERTY LINE
COMBINED
PARCEL
1)
711 S. ISTOL
010-183 2
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STREET
PARCEL R10
ZONING APPROX. AREA
RESIDENTIAL 8,492 SF
Appendix
ATTACHMENT
PROPERTY BID FORM
Each row must be completed with either a bid amount or a ✓ indicating no bid is placed
for that property. Print and Sign name below. For each property in which a bid amount
is extended, all submittal requirements apply.
PARCEL
ZONING
LOT SIZE
APPRAISED
BID
NO BID
ID
(SQ. FT)
AMOUNT (USD $)*
AMOUNT (USD $)
Cl
Commercial
18,290
$1,095,000
$
C2
Commercial
48,597
$2,915,000
$
C3
Commercial
24,176
$1,450,000
$
C4
Commercial
48,287
$2,800,000
$
C5
Commercial
49,403
$2,865,000
$
C6
Commercial
17,415
$1,180,000
$
C7
Commercial
12,734
$635,000
$
C8
Commercial
21,313
$1,385,000
$
C9
Commercial
25,139
$1,355,000
$
P1
Professional
17,164
$995,000
$
P2
Professional
36,504
$1,970,000
$
P3
Professional
11,868
$590,000
$
Rl
Residential
4,365
$150,000
$
City of Santa Ana RFP 19-026
Attachment 2
PROPOSER INITIAL
PARCEL
ZONING
LOT SIZE
APPRAISED
BID
NO BID
ID
(SQ. FT)
AMOUNT (USD $)*
AMOUNT (USD $)
(�
R2
Residential
7,755
$300,000
$
R3
Residential
5,949
$235,000
$
R4
Residential
9,355
$325,000
$
R5
Residential
6,513
$260,000
$
R6
Residential
6,469
$255,000
$
R7
Residential
4,701
$160,000
$
R8
Residential
4,595
$160,000
$
R9
Residential
12,071
$410,000
$
R10
Residential
8,492
$305,000
$
*The "Appraised Amount' is an estimate of the market value per an appraisal report prepared by a
California licensed appraiser. It is not required that the bid amount match or exceed the "Appraised
Amount' listed hereon.
Name of Firm
Name of BIDDER
Signature of BIDDER
Title
(If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-
partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary,
Treasurer and Manager, thereof)
City of Santa Ana RFP 19-026
Attachment 2
PROPOSER INITIAL
Appendix
ATTACHMENT
SAMPLE RIGHT OF ENTRY AGREEMENT
RIGHT OF ENTRY
[Property Address]
The City of Santa Ana, a charter city and municipal corporation duly organized and existing under
the Constitution and laws of the State of California, does hereby grant to NAME OF GRANTEE
("Grantee"), the right to enter the parcel described as PARCEL X adjacent to ADDRESS, Santa
Ana, County of Orange, as more particularly shown in Exhibit A, attached hereto and incorporated
herein by reference ("Property"), for the following purposes:
The right to enter and use the Property for the purpose of conducting site investigations
Grantee agrees to indemnify, defend, and hold harmless City, its officers, agents, representatives,
employees, and volunteers from and against any and all actions, suits, claims, demands, judgments,
losses, expenses, or liabilities, injuries and damages to persons and property, including death,
arising out of or related to Grantee's use of the Property or the entry by any Grantee party on the
Property, including without limitation, Grantee's guests and invitees. Grantee further agrees to
repair any damage to the Property caused by the exercise of this Right of Entry at its sole cost and
expense and to restore said property to the state in which it existed prior to its use.
Grantee shall maintain commercial general liability insurance which shall include, but not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom and damage to property, resulting from any act or occurrence arising out of its
use of the Property, including, without limitation, acts involving vehicles. The amounts of
insurance shall be not less than the following: single limit coverage applying to bodily and personal
injury, including death resulting therefrom, and property damage, in the total amount of
$1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the
City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be
primary and not contributory with respect to insurance or self-insurance programs maintained by
the City; and (c) contain standard separation of insureds provisions.
The rights herein granted to Grantee are exclusive, and Grantee agrees not to assign, transfer, lease,
pledge, or otherwise dispose of this Right of Entry without the prior express written approval of
the City. This instrument conveys no right of entry to existing buildings, if any.
This Right of Entry shall expire on DATE, unless otherwise terminated earlier or extended by
written agreement between the parties.
THE CITY OF SANTA ANA
A charter city and municipal corporation duly
organized and existing under the Constitution
and laws of the State of California.
City of Santa Ana RFP 19-026
Attachment 3
Steven Mendoza
Acting City Manager
Date:
NAME OF GRANTEE
APPROVED AS TO FORM:
John M.Funk
Assistant City Attorney
City of Santa Ana RFP 19-026
Attachment
Appendix
ATTACHMENT
SAMPLE PURCHASE AND SALE AGREEMENT
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S):
THIS
California
AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
charter city and municipal corporation ("Seller") and
('Buyer") for the acquisition by Buyer of certain real
property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APNs) I located at
in the City of Santa Ana, County of Orange, State of
California. Buyer desires to purchase a fee interest in such real property owned by Seller
as more particularly described and depicted in Exhibit "A", attached hereto and made part
hereof ("Property"), and Seller desires to sell the Property.
B. A copy of the Grant Deed for APNs , filed with the
County of Orange as Document No. [INSERT DOCUMENT NUMBER], is attached hereto
as Exhibit "B" and is incorporated herein by this reference.
C. The subject Property was acquired by Seller in IYear(s)l as part of the
IProiect Name(s)l . These parcels are vacant and are not needed for public use or
improvements.
D. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
FACIN=I =ILril4L,kl
The parties therefore agree as follows:
f�1�1:ZN:/GF9q
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose
address is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the
City of Santa Ana RFP 19-026
Attachment 4
purpose of consummating the purchase and sale of the Property, as described herein.
The date on which Escrow is opened with Escrow Holder shall be referred to as the
"Effective Date." The parties shall execute and deliver to Escrow Holder such escrow
instructions prepared by Escrow Holder, as may be required to consummate the
transaction contemplated by this Agreement. If there is any inconsistency between
such instructions and this Agreement, this Agreement shall control unless the parties
expressively agree in writing otherwise. The Escrow instructions shall include the
following terms and conditions of sale:
2.1 Purchase Price
The total purchase price for the Property shall be the sum of
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyerwill remit into escrow a deposit of ten percent (10%) of the purchase
price, or ("Escrow Deposit"). Such Escrow Deposit shall be
credited towards the Purchase Price paid to Seller as provided in this Agreement.
(b) Closing Payment. The Purchase Price, as adjusted by the
application of the Escrow Deposit and by the proration and credits specified herein, shall
be paid by Buyer to Seller in cash at the Close of Escrow (the amount to be paid under
this Section 2.1(b) being herein called the "Closing Payment").
(c) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Percent (1 %) of the purchase price,
or ("Independent Consideration") to Seller upon the earlier to
occur of the Close of Escrow (as defined below) or the termination of this Agreement for
any reason. The Independent Consideration constitutes bargained -for consideration for
this Agreement and Buyer's rights under Section 2.6(d) and is expressly acknowledged
to be adequate. The obligation of Buyer to pay the Independent Consideration to Escrow
Holder, and the obligation of Escrow Holder to pay the same to Seller, are unconditional
and shall survive any termination of this Agreement.
2.2 Close of Escrow
Escrow shall close ("Close of Escrow") (Duration) business days
subsequent to the Effective Date of this Agreement or as soon as possible thereafter.
City of Santa Ana RFP 19-026
Attachment 4
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment") binding the Title Company to issue the Title
Policy to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall
show as exceptions with respect to the Property only matters approved in writing by
Buyer, which approval shall be delivered in writing by Buyer to Seller prior to the
expiration of the Due Diligence Period. Buyer shall in addition have approved in writing
the legal description of the Property to be set forth in the Title Policy prior to the
expiration of the Due Diligence Period. At the Close of Escrow, Seller shall cause all
standard title exceptions typically appearing on an ALTA title insurance policy, including
the gap exception, the exception relating to parties in possession, the survey exception,
and all exceptions related to mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller
related to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
City of Santa Ana RFP 19-026
Attachment 4
conditions:
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have fifteen (15) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete any additional
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
not performed during the proposal period ("Due Diligence Investigations"). During the
term of this Agreement, Seller shall provide Buyerwith reasonable access to the Property,
as further set forth below. Within ten (10) days following the Effective Date, Seller shall
deliver to Buyer true and complete copies of any environmental reports, title documents
and any other agreements, documents, or information pertaining to the Property to the
extent in Seller's possession or reasonably obtainable by Seller. Seller will make every
effort to provide all pertinent documents, but Seller's inability or failure to provide any
document shall not be considered a violation subject to termination of the Agreement. At
any time on or before the last day of the Due Diligence Period, Buyer may, in its absolute
and sole discretion, for any reason or no reason, give written notice ("Termination
Notice") to Seller electing to terminate this Agreement, whereupon a condition to Buyer's
obligation to close shall not be satisfied, the Escrow Deposit (less the Independent
Consideration) shall be immediately returned by the Escrow Holder to Buyer, and this
Agreement, and the obligations of the parties hereunder, shall terminate (other than those
obligations that expressly survive a termination of this Agreement). If Buyer fails to deliver
the Termination Notice to Seller prior to the expiration of the Due Diligence Period, then
Buyer shall have no further right to terminate this Agreement and have the Escrow
Deposit (less the Independent Consideration) returned to Buyer except as otherwise set
forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon
the timely performance by Buyer of all obligations required by the terms of this
Agreement.
2.8 License to Enter Property During Due Diligence Period
City of Santa Ana RFP 19-026
Attachment 4
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date
of any Termination Notice provided hereunder. The Buyer shall conduct all Due
Diligence Investigations during the Due Diligence Period at its sole cost and expense.
The Buyer shall abide by any reasonable condition(s) of entry onto the Property
required by Seller, whether or not set forth in this Agreement. Any Due Diligence
Investigations by the Buyer shall not unreasonably disrupt any then -existing use or
occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
City of Santa Ana RFP 19-026
Attachment 4
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Seller is at present a party or by which Seller is bound;
and
(b) To Seller's actual knowledge, no litigation and no
governmental, administrative or regulatory act or proceeding regarding the
environmental, health and safety aspects of the Property is pending, proposed or
threatened; and
(c) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(d) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(e) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Buyer hereby represents and guarantees that it will complete
construction and development of the Property for the Proposed Use defined in this section
within [Duration (months)l following the Close of Escrow. The proposed operation of
an [Proposed Use(s)l by Buyer on the Property is critical to the Seller's decision to sell
the Property to Buyer. The [Duration (months)l timeframe shall be tolled by any delays
directly attributable to the actions or inactions of the Seller or Tenant, by any natural
causes outside the control of either party ("Force Majeure"), or by mutual agreement of
the parties. If Buyer does not comply with this guarantee within the timeframe provided,
the Seller may opt to nullify the sale of the Property, at which time the Property shall be
returned to the Seller, including any and all improvements to the Property completed by
Buyer, in exchange for payment by the Seller to Buyer of eighty percent (80%) of the
Purchase Price.
(b) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
City of Santa Ana RFP 19-026
Attachment 4
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(c) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. ACKNOWLEDGEMENT OF FULL BENEFITS
By execution of this Agreement, Seller hereby acknowledges that this Agreement
provides full payment for the acquisition of the Property by Buyer, and Seller hereby
expressly and unconditionally waives any claim for damages, interest, loss of goodwill,
severance damages, or any other compensation or benefits other than as already
expressly provided for in this Agreement, it being understood that this is a complete and
full settlement of all acquisition claims, liabilities, or benefits of any type or nature
whatsoever relating to or in connection with the acquisition of the Property.
C7AdiIAQ1:11
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall
terminate (other than those obligations that expressly survive a termination of this
Agreement) and the Escrow Deposit shall be delivered to Seller as full compensation
and liquidated damages under and in connection with this Agreement, and in such
event, Buyer shall not be liable to Seller for monetary damages except for full payment
of the amount of the Escrow Deposit due at the time of termination and forfeiture of said
Escrow Deposit to the Seller.
6. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
ln�GF96YK67►1QIIEel ►1
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
City of Santa Ana RFP 19-026
Attachment 4
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on
any representation by Seller or Seller's agent except those expressly set forth in
Section 3.1. Buyer hereby acknowledges that the purchase of the Property is without
warranties of any kind from Seller, expressed or implied, except as expressly set forth in
Section 3.1, as to the condition of the Property or its improvements, if any, including,
without implied limitation, soils, access to the Property or to utilities, appliances,
structure utility systems, roof, foundation, landscaping or any other component of the
Property. Seller does not warrant that the Property conforms with any ordinances,
including, without implied limitation, zoning or building ordinances.
8. MISCELLANEOUS
8.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that
such facsimile or email attachment shall be followed within one (1) business day by
delivery of such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in
the State of California, duly registered or certified, with postage prepaid, and addressed
as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Executive Director, PWA
Facsimile:
E-mail:
Buyer:
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
City of Santa Ana RFP 19-026
Attachment 4
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
8.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
8.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the Executive Director of Public Works Agency shall have the authority to review and
approve or deny any request for assignment.
8.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of
the parties hereto, shall be governed by the laws of the State of California. Venue shall
be in the County of Orange.
8.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns,
successors in interest, personal representatives, estates, heirs and legatees of each of
the parties hereto.
8.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties
hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing
party shall be entitled to recover from the other party reasonable expenses, attorney
fees and costs.
8.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject
matter contained in this Agreement which are not fully expressed herein.
8.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
City of Santa Ana RFP 19-026
Attachment 4
instruments necessary to carry out the terms of this Agreement.
8.9 No Merger
All warranties, representations, acknowledgements, releases, covenants
and obligations contained in this Agreement shall survive delivery and recordation of the
grant deed.
8.10 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
8.11 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
City of Santa Ana RFP 19-026
Attachment
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S):
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
21
Steven A. Mendoza
Acting City Manager
ATTEST:
0
Norma Mitre
Acting Clerk of the Council
APPROVED AS TO FORM:
in
John M. Funk
Assistant City Attorney
BUYER:
21
City of Santa Ana RFP 19-026
Attachment
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described as follows:
City of Santa Ana RFP 19-026
Attachment
EXHIBIT "B"
ORANGE COUNTY RECORDER DOCUMENT NO. [INSERT DOCUMENT NO.I
[attached behind this page]
City of Santa Ana RFP 19-026
Attachment
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 406-252-21, 406-252-22
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and Southwest Group
Properties, LLC("Buyer") for the acquisition by Buyer of certain real property described
below.
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 405-252-21, 405-252-22 located at 1601 - 1607 N Bristol St.
in the City of Santa Ana, County of Orange, State of California. Buyer desires to purchase
a fee interest in such real property owned by Seller as more particularly described and
depicted in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller
desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
AGREEMENT
The parties therefore agree as follows:
1. PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
EXHIBIT 2
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $1,100,000
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have fifteen (15) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 36 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
2
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Retail Drive-thru (the
"Intended Use"), such that immediately following the acquisition of the Approvals, Buyer
shall be entitled to commence construction of the Intended Improvements. Nothing in
this agreement shall constitute Approvals by Seller, and Buyer acknowledges that it must
comply with all of Seller's development standards, guidelines and procedures that are
applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
Southwest Group Properties, LLC
714 S. Plymouth Blvd
Los Angeles, CA 90005
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
9
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-252-21, 405-252-22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
M
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
-"; Clerk of the Council
APPROVED AS TO FORM:
By: � 7g, -f.L
(John M. Funk
Assistant City Attorney
BUYER:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
Exhibit A
In the City of Santa Ana, County of Orange, State of California, being Lots 3, 5, and 7, of a
Surveyors Map, per map filed in book 3 page 12, of Record of Surveys, in the Office of the
County Recorder of said County,
Except that Land described in a Deed as Instrument 20 H 0 ooq IU S, official records of said
County.
Containing 18290 square feet, more or less.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
The bearing used for Bristol Street is North 10 32' 07" East; per Record of Survey 2011-1081
filed in book 253, pages 1.7 through 20, of Records of Survey, in the Office of said County
Recorder of Orange County.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by me, or under my direction on jo ( /
John M. Gonzales, PLS 9065
Id"
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
SEVENTEENTH I STREET
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EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
APPROVED AS TO
APPROVED BY
DESCRIPTION
DISCRIPTION
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405-252-21 & 22
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DEED NIiALBER
1601 & 1607 N. BRISTOL STREET
8735
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
Southwest Group Properties, LLC, the real property in the City of Santa Ana, County of Orange, State of
California. described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
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AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-272-11, 450-272-12, 405-272-13, 405-272-14,
405-272-15, 405-272-16, 405-272-17, 405-272-18, 405-272-21
THIS AGREEMENT of Purchase and Sale ("Agreement"), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and Merchant Star
International General Trading ("Buyer") for the acquisition by Buyer of certain real
property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 405-272-11, 450-272-12, 405-272-13, 405-272-14, 405-272-
15, 405-272-16, 405-272-17, 405-272-18, 405-272-21 located at 1303 to 1411 N Bristol
St. in the City of Santa Ana, County of Orange, State of California. Buyer desires to
purchase a fee interest in such real property owned by Seller as more particularly
described and depicted in Exhibit "A", attached hereto and made part hereof ("Property"),
and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
AGREEMENT
The parties therefore agree as follows:
1. PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
EXHIBIT 3
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
Purchase Price
The total purchase price for the Property shall be the sum of $2,605,000
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment").
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
4
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment") binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closinq Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
5I
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Seller will not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 36 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
A
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Multi -Tenant Restaurant
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
Buyer:
Merchant Star International General Trading
701 Park Center Drive
Santa Ana, CA 92705
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governina Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
9
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-272-11, 450-272-12, 405-272-13, 405-272-14,
405-272-15, 405-272-16, 405-272-17, 405-272-18, 405-272-21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST.
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: lit'-
ohn M. Funk
Assistant City Attorney
BUYER:
Merchant S International General Trading
By: 1 ✓`-�
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
Exhibit A
In the City of Santa Ana, County of Orange, State of California, being .L,ots 12 through 20, of
Tract Map 863, per map recorded in Book. E, page 30 of Miscellaneous Maps, in the Office of
the County .Recorde.r of said County,
Except that land described in a Deed as Instrument number ZQ aaa'official records of
said County
Together with that land described in a Deed as Instrument number 2017000525166 official
records of said County.
Described.as a 'whole.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
Containing 49,079,0 square feet, more or less.
All as shown on Exhibit 8, attached hereto and by this reference made a part hereof,
Prepared by me, or under my direction on (
ohn M. Gonzales, PI.S 9065
OHN M.
GONZALES
*� No..9065
OF -A1:
Page 1 of 2
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' EASEMENT TO THE SANTA ANA PER INST. 82-202192
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PAGE 3 OF 3
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
APPROVED AS TO
APPROVED BY
DESCRIPTION
DISCRIPTION
A.P.
R/W MAP
PARCEL
FORM BY ATTY.
DIRCTOR
WRITTEN BY
CHECKED O.K.
NUMBER
NUMBER
NUMBER
405-272-11, 12, 13,14,
15 16 17 18 & 21
C2
DEED NUMBER
1303 - 1411 N. BRISTOL STREET
8736
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
Merchant Star International General Trading, the real property in the City of Santa Ana, County of
Orange, State of California, described as follows:
See Exhibit "A" attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated:
Dated:
By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C"
INTENDEDIMPROVEMENTS
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Page 60
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 004-123-52, 004-123-48
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and Merchant Star
International General Trading ("Buyer") for the acquisition by Buyer of certain real
property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 004-123-52, 004-123-48 located at 828 N Bristol St. in the
City of Santa Ana, County of Orange, State of California. Buyer desires to purchase a
fee interest in such real property owned by Seller as more particularly described and
depicted in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller
desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
/eLMV44Jtl4J1111
The parties therefore agree as follows:
1. PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 4
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $1,025,000
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit'). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit'). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
('Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment") binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Dilioence Period
12
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 36 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
'Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
n.
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Restaurant (the "Intended
Use"), such that immediately following the acquisition of the Approvals, Buyer shall be
entitled to commence construction of the Intended Improvements. Nothing in this
agreement shall constitute Approvals by Seller, and Buyer acknowledges that it must
comply with all of Seller's development standards, guidelines and procedures that are
applicable to the Intended Improvements and the Intended Use.
(c) Buyer acknowledges that the Seller is coordinating the
undergrounding of utilities along Bristol Street and a future twenty-five (25) foot by twenty-
five (25) foot easement for Southern California Edison shall be required at the northeast
corner of the site as detailed in the Seller Request for Proposal No. 19-026 and Buyer's
proposed site plan (Exhibit C). The limits of the easement shall be determined concurrent
with the Approvals. Buyer shall ensure that the Intended Improvements shall not be in
conflict with the proposed easement. No compensation shall be provided for the
easement.
(d) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(e) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
7
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Buyer:
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
Merchant Star International General Trading
701 Park Center Drive
Santa Ana, CA 92705
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
9
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 004-123-52, 004-123-48
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By 7VV, -.',
Jbfin M. Funk
Assistant City Attorney
BUYER:
Merchant Star International General Trading
By.
�n' ez5 _
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
Exhibit A
In the City of Santa Ana, County of Orange, State of California, being those portions of Parcel 1
and 2 of Parcel Map 79-905, per Parcel Map Book 150, pages 12 and 13, filed in the Office of
the County Recorders of said County,
Except that land described Ina Deed per Instrument Number 7_01!Wpn4ynj , official records
of said county,
Containing 25 000.0 square feet, more or less.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit &, attached hereto and by this "reference made a part hereof.
Prepared by me, or under my direction on
John M. Gonzales, PLS 9065 f`
JOHN M.
GONZALES
_ � V* \ No.. 9065 / *
Page 1 of 1
EXHIBIT 'B'
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
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RADIAL BEARINGS
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64 = N 81.37'42" E
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L = 24.68' L = 62.81' L = 12.3V L = 23.76'
W
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( I PER PM 79-905. PMB 15012-13. (( )) = PER DEED BK. 591. PC, 109,
O = STREET R. W. PER INSTRUMENT NO. ?,QLRQQO jy 3 /'�-
PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383. SPACE ABOVE THIS LINE FOR RECORDER'S
USE
TAXES APPROVED AS TO .APPROVED BY DESCRIPTION DI,(RIPTION A.P. R/NMAP PARCEL
FORMBY \TTY_ DIRCTOR WRITTENBY CHECKED O.K. NUMBER LUMBER NLMBER
004-123-48 & 52
C3
DEED NUMBER
828 N. BRISTOL STREET
8737
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
Merchant Star International General Trading, the real property in the City of Santa Ana, County of
Orange, State of California, described as follows:
See Exhibit "A° attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C"
INTENDEDIMPROVEMENTS
[attached behind this page]
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MERCHANT STAR INTERNATIONAL
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Page 60
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 015-194-37, 015-194-40
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller') and Merchant Star
International General Trading ("Buyer") for the acquisition by Buyer of certain real
property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 015-194-37, 015-194-40 located at 2235 S Bristol St. and
1211 W Warner Ave. in the City of Santa Ana, County of Orange, State of California.
Buyer desires to purchase a fee interest in such real property owned by Seller as more
particularly described and depicted in Exhibit "A", attached hereto and made part hereof
("Property"), and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
AGREEMENT
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder'), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 5
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $1,050,000
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment").
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 36 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Multi -Tenant Restauraunt
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
Merchant Star International General Trading
17702 Mitchell North
Irvine, CA 92614
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 015-194-37, 015-194-40
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
Assistant City Attorney
BUYER:
Merchant Star International General Trading
By: C \ ✓"
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11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "A"
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
LOTS 183, 184, 185 AND 186 OF TRACT MAP NO. 1192 AS PER THE MAP FILED IN
BOOK 39, PAGE 17 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF SAID
COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOTS 184, 185 AND 186
GRANTED IN FEE FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT
NUMBER 2 o 19 000 H N f3'�) 18 OFFICIAL RECORDS OF SAID
COUNTY.
CONTAINING A TOTAL AREA OF 17,564 SQUARE FEET.
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B° ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
PAGE 1 OF 1
EXHIBIT //B"
PLAT TO ACCOMPANY LEGAL DESCRIPTION
................................................
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PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
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APPROVLDBY
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NUMBER
NUMBER
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015-194-37 & 40
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DEED?TMEER
2235 S. BRISTOL STREET & 1211 W. WARNER AVENUE
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
Merchant Star International General Trading, the real property in the City of Santa Ana, County of
Orange, State of California, described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
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PARCEL C6
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 399-085-11
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 399-085-11 located at 1725 N Bristol St. in the City of Santa
Ana, County of Orange, State of California. Buyer desires to purchase a fee interest in
such real property owned by Seller as more particularly described and depicted in
Exhibit "A", attached hereto and made part hereof ("Property"), and Seller desires to sell
the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
*3:113rr11
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $127,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 399-085-11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
0
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By:
Afin M. Funk
Assistant City Attorney
BUYER:
IAS Management
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "A"
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THAT PORTION OF LOT 25 TRACT MAP NO. 1572 AS PER THE MAP FILED IN BOOK
48, PAGE 16 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF SAID COUNTY,
EXCEPTING THEREFROM THAT PORTION OF LOT 25 GRANTED IN FEE FOR
PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT NUMBER
IW Ova � 1l 9163 , OFFICIAL RECORDS OF SAID COUNTY.
CONTAINING AN APPROXIMATE AREA OF 4,521 SQUARE FEET.
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT 'B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
PAGE 1 OF 1
EXIBIT B
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
i EIGHTEENTH STREET
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14
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RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500.
0
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PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
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NUMBER
NUMBER
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399-08511
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1725 N. BRISTOL STREET
8739
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
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PARCEL R1
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 004-122-39
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 004-122-39 located at 908 N Bristol St. in the City of Santa
Ana, County of Orange, State of California. Buyer desires to purchase a fee interest in
such real property owned by Seller as more particularly described and depicted in
Exhibit "A", attached hereto and made part hereof ("Property"), and Seller desires to sell
the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
*000114111011
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $257,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence +
ADU (the "Intended Use"), such that immediately following the acquisition of the
Approvals, Buyer shall be entitled to commence construction of the Intended
Improvements. Nothing in this agreement shall constitute Approvals by Seller, and Buyer
acknowledges that it must comply with all of Seller's development standards, guidelines
and procedures that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 004-122-39
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO
FORM:
By. !ry.
AM M. Funk
Assistant City Attorney
BUYER:
IAS Management
By:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
Exhibit A
In the City of Santa Ana, County of Orange, State of California, being that portion of the South 8
feet of the East 120 feet of Lot 1, of Tract 933 per Map filed in book 33, page 1of Miscellaneous
Maps, in the Office of the County Recorders of said County, Together with those portions of the
South half of Lot 3, and all of Lots 4 and 5 of Tract 671 filed in book 24, page 32 of
Miscellaneous Maps records of said County,
Except that land described in a Deed as instrument Number )-ollooap N8 36-2- 1 official records
of said County.
Containing 7608.0 square feet, more or less.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by me, or under my direction on
John M. Gon ales, PLS 9065
Page 1 of I
EXHISIT 'B'
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
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-------71-20' (30' )
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-----------------------••--__..- �: -----
--- --- N 89031 ' 30 W
9 TH STREET
24.21' I
BC! I
PARCEL LIMITS
PURL I C S TREE T R/W PER INS T. No. 2-c l9 voo t9 V B U z.
C1
A = 7°01'55"
R = 95.00'
L = 11.66'
C2
A = 88043'57"
R = 43,00'
L = 66.59'
( ) = PER TRACT 671, MM 24/32.
C3
R - 5.04'
L = 12.38'
BASIS OF BEARING = BRISTOL STREET WIDENING PHASE 3 PROJECT 13-•6792. PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXLS
%PPROALEAS 10
APPROVLDBY
DLS(RIP I ION
DISCRIPIION
AP.
RAVM
PARCLL
I'ORM BY AI IY.
DIRCIOR
V:RIIILNBY
CHLCRLD
NUMBER
NUMBER
NGMBLR
004-122-39
R2
DEED?TMEER
908 N. BRISTOL STREET
8740
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
PARCEL R2
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-073-14, 405-073-15
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 405-073-14, 405-073-15 located at 622 - 624 N Bristol St. in
the City of Santa Ana, County of Orange, State of California. Buyer desires to purchase
a fee interest in such real property owned by Seller as more particularly described and
depicted in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller
desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 8
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $188,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-073-14, 405-073-15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
0
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: K 7g, -f.-L
J n M. Funk
Assistant City Attorney
BUYER:
.mop� /0M WA
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
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In the City of Santa Ana, County of Orange, State of California, being those portions of Lots 1
through 3 of Tract 662, per map filed in Book 24, page 17 of Miscellaneous Maps, in the Office
of the County Recorders of said County,
Except that land described in Deed as Instrument Number 20 igogo Y83 Y official records of
said County.
Containing 5,955.0 square feet, more or less.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by or under my direction on e \�//201
John M. Gonzales, PLS 9065
PIS 9065
DEED INS
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EXIHEBIT B
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EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
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DEED?TMEER
908 N. BRISTOL STREET
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GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
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PARCEL R3
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-073-16, 405-073-17, 405-073-18
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 405-073-16, 405-073-17, 405-073-18 located at 602 - 610
N Bristol St. in the City of Santa Ana, County of Orange, State of California. Buyer desires
to purchase a fee interest in such real property owned by Seller as more particularly
described and depicted in Exhibit "A", attached hereto and made part hereof ("Property"),
and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 9
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $287,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Duplex (the "Intended
Use"), such that immediately following the acquisition of the Approvals, Buyer shall be
entitled to commence construction of the Intended Improvements. Nothing in this
agreement shall constitute Approvals by Seller, and Buyer acknowledges that it must
comply with all of Seller's development standards, guidelines and procedures that are
applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 405-073-16, 405-073-17, 405-073-18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: !w.
hn M. Funk
Assistant City Attorney
BUYER:
IAS Managem nt
By:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT A
In the City of Santa Ana, County of Orange, State of California, being those portions of Lots 9
through 11 of Tract 1152, per map filed in Book 38, page 9 of Miscellaneous Maps in the office
of the County Recorder in said County,
Except that land described in a Deed as Instrument Number' op Y% )&5, official records
of said County.
Containing 9132.0 square feet, more or less,
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by me, or under my direction on
- dQ.
CI
John M. Gonzales, PLS 9065
EXIHIBIT B
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
M
7TH STREET
(30')
. .......... ........ .... :
( ( 40' ) I
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100.00,
PARALLEL:
4c), I
59, 801
------------------------- Ci -----------
6TH STREET
PARCEL LIMITS
PUBLIC STREET R/W PER INST. NO. 2oM000 H V 0 36 5-
TRACT 662 M.M. 24/17.
TRACT 1152 M.M. 38/9.
BASIS OF BEARING PER
BRISTOL STREET PROJECT 08-1700
joHN M.
GONZALES
nt -9�
No. 9065
OF
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXLS
%PPROALDAS 10
APPROVLDBY
DI SCRIPI ION
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405-073-16, 17 & 18
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DEED?TMEER
602 - 610 N. BRISTOL STREET
8742
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
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0
PARCEL R4
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-231-24, 008-231-27, 008-231-26
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 008-231-24, 008-231-27, 008-231-26 located at 303 - 309
S Bristol St. in the City of Santa Ana, County of Orange, State of California. Buyer desires
to purchase a fee interest in such real property owned by Seller as more particularly
described and depicted in Exhibit "A", attached hereto and made part hereof ("Property"),
and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 10
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $237,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence +
ADU (the "Intended Use"), such that immediately following the acquisition of the
Approvals, Buyer shall be entitled to commence construction of the Intended
Improvements. Nothing in this agreement shall constitute Approvals by Seller, and Buyer
acknowledges that it must comply with all of Seller's development standards, guidelines
and procedures that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-231-24, 008-231-27, 008-231-26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By:
Jdhn M. Funk
Assistant City Attorney
BUYER:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "A"
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THAT PORTION OF LOTS 12,13 AND 14, BLOCK 0, OF TRACT 610 AS PER THE MAP
FILED IN BOOK 19, PAGE 12 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF
SAID COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOTS 12,13 AND 14
GRANTED IN FEE FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT
NUMBER '7 c 1 QOO 114 0 `i OFFICIAL RECORDS OF SAID
COUNTY.
CONTAINING AN APPROXIMATE AREA OF 6,350 SQUARE FEET.
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
CHRYSOSTOMO, L.S. 9216 DN
PAGE 1 OF 1
PINE STREET
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CURVE Q
,L = 71 * 00' 31
R = 45.00'
L = 55.77'
F:O
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
PINE STREET
East)
0
32. 11
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PERPENDICULAR
(30'
PORTION OF
LOT 12
51.60'
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0
51.60'
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51.60'
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PARALLEL
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INSTRUMENT # zz
2009000042037
PARCEL LIMITS SQUARE FEET = 6,350 + / -
PUBLIC STREET R/W PER INST. NO. 2-007 000 111R 1-1 / A
I I = TRACT 1363, M.M 42/32.
RADIA- LINE 1 = S 44'28'11" W
RADIAL LINE 2 = S 26'32'20" E
10' EASEMENT GRANTS TO THE CITY OF SANTA ANA
DEED I = BK 2216, PG 312 OC RECORDS.
DEED 2 = BK 2221, PG 33 OC RECORDS.
DEED 3 = BK 2200, PG 326 OC RECORDS.
DEED 4 = BK 2101, PG 620 OC RECORDS
RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500.
K
PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXLS
%PPROALDAS 10
APPROVLDBY
DLSCRIPI ION
DISCRIPI ION
YI,
R/W MAP
PARCLL
I'ORNI BY AI IY.
DIRCIOR
V:RII ILNBY
CHL(RLDO.R
NCMBLR
NUMBER
NGMBLR
008-231-24, 26 & 27
RS
DEED?TMEER
303 - 309 S. BRISTOL STREET
8743
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
b
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AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-231-23, 008-231-29
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 008-231-23, 008-231-29 located at 313 - 323 S Bristol St. in
the City of Santa Ana, County of Orange, State of California. Buyer desires to purchase
a fee interest in such real property owned by Seller as more particularly described and
depicted in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller
desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 11
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $237,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence +
ADU (the "Intended Use"), such that immediately following the acquisition of the
Approvals, Buyer shall be entitled to commence construction of the Intended
Improvements. Nothing in this agreement shall constitute Approvals by Seller, and Buyer
acknowledges that it must comply with all of Seller's development standards, guidelines
and procedures that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-231-23, 008-231-29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: t4
i6fin M. Funk
Assistant City Attorney
BUYER:
IAS Manageme
By:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "A77
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THAT PORTION OF LOTS 15,16 AND 17, BLOCK C, OF TRACT 610 AS PER THE MAP
FILED IN BOOK 19, PAGE 12 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF
SAID COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOTS 15,16 AND 17
GRANTED IN FEE FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT
NUMBER 20 I anp Ll 19 W I OFFICIAL RECORDS OF SAID
COUNTY.
CONTAINING AN APPROXIMATE AREA OF 9,124 SQUARE FEET.
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
CHRYSOSTOMO, L.S. 9216 DA
PAGE 1 OF 1
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( ) = TRACT 610, M.M. 19/12.
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RADIAL LINE 1 = N 38°37' 42" W
RADIAL LINE 2 = N 31°28' 34" E
10' EASEMENT GRANTS TO THE CITY OF SANTA ANA
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PG 341 CC RECORDS.
PG 522 OC RECORDS.
PG 620 OC RECORDS.
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RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500.
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PAGE IOF1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instnmient to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
APPROVED AS TO
APPROVED BY
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GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
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PARCEL R6
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-232-31, 008-232-34
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and Dustin Do("Buyer") for the
acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 008-232-31, 008-232-34 located at 401 - 407 S Bristol St. in
the City of Santa Ana, County of Orange, State of California. Buyer desires to purchase
a fee interest in such real property owned by Seller as more particularly described and
depicted in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller
desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
EXHIBIT 12
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $192,800
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
Dustin Do
6500 E. Carnegie Ave
Anaheim, CA 92807
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 008-232-31, 008-232-34
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: 7�r. TV�L
hn M. Funk
Assistant City Attorney
BUYER:
Dustin Do 1
By: ` >
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "Ayl
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THAT PORTION OF LOTS 12,13 AND 14, BLOCK D, OF TRACT 610 AS PER THE MAP
FILED IN BOOK 19, PAGE 12 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF
SAID COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOTS 12, 13 AND 14
GRANTED IN FEE FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT
NUMBER W I `l ®any W 8 11.0 OFFICIAL RECORDS OF SAID
COUNT`!.
CONTAINING AN APPROXIMATE AREA OF 4285.0 SQUARE FEET MORE OR LESS
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD,
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION;
PAGE 1 OF 1
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CHESTNUT AVENUE
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PARCEL LIMITS
PUBLIC STREET R/W PER INST. NO.2201` 000 �l y�,�7-0
CURVE AQ
A = 7Q°06' 16"
R = 45.00'
L = 55.06'
SO.FT.= 4285.0
( > = TRACT 610. M.M. 19/12.
(( )) = TRACT 1363, M.M. 42/32.
RADIAL LINE 1 = S 38°16'40" W
10' EASEMENT GRANTS TO THE CITY OF SANTA ANA
DEED 1 = BK 2231, PG 591 OC RECORDS.
DEED 2 = BK 2246, PG 338 OC RECORDS.
ZQ Z
RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500. PAGE OF
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instnnnent to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
APPROVED AS TO
APPROVED BY
DESCRIPTION
DISCRIPTION
AP
R/WMAP
PARCEL
FORM BY ATTY.
DIRCTI
WRTTTENBY
CHECKEDK
NDMBER
NDMBER
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008-232-31 & 34
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DEED NIiALBER
401 - 407 S. BRISTOL STREET
8745
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
DVD Construction, the real property in the City of Santa Ana, County of Orange, State of
California. described as follows:
See Exhibit "A" attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
ORIGINAL COPY
3b. Development Team's Past Experience
The same group of companies in the organizational chart above just
completed a 2-story 1,600 sf new construction residential house together in
Long Beach. The property is currently in escrow and is estimated to close
on May 31st, 2019. The development teams' expertise in residential
construction eased the process with experience and hard work. I was the
owner/investor of the project and self -funded with cash savings from
working for another contractor, that is how I funded the project. The cash
from this sale will be used to pay for the expenses incurred on this project.
3c. No previous experience with public entities within Orange County.
3d. Dustin Do will be the one to purchase the land, develop, and pay for
all expenses as a personal investment. The only reason DVD Construction
was included in the proposal was because I am registered in Planet Bids
under my company name "DVD Construction". The buyer in the contract
will be Dustin Do, not DVD Construction.
4. Project Description
New construction of a 2-story single family residence that matches the style
and texture of the existing neighborhood using the City of Santa Ana
residential guidelines. The idea is to avoid a box -link structure and to have
architectural details to beautify the neighborhood and provide cost effective
housing for local residents. Around 2,000 sf of living space with 4
bedrooms and 4 baths will provide a comfortable living situation for a
growing family. 2-car garage with 2 cars available to park on the driveway
and 1 on the street if needed. Energy efficient materials and sustainable
design components will be utilized for long term sustainability on the
project. Current zoning of R-1 provides the necessary tools to build a
single-family residence that will increase the value of land in Santa Ana.
Development cost of $215,000 will cover everything from start to finish.
5. No letter of intent from tenants, however there are tons of people who
would like to own their own house in Santa Ana and they deserve a chance
to be a homeowner too.
PARCEL 7
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-022-09
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and Dustin Do("Buyer") for the
acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 010-022-09 located at 1306 W Raymar St. in the City of
Santa Ana, County of Orange, State of California. Buyer desires to purchase a fee
interest in such real property owned by Seller as more particularly described and depicted
in Exhibit "A", attached hereto and made part hereof ("Property"), and Seller desires to
sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
Five] C7=I =Ikyil=Izr11
The parties therefore agree as follows:
1. PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
Imo:/:113r�rc3
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $184,800
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
2
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence
(the "Intended Use"), such that immediately following the acquisition of the Approvals,
Buyer shall be entitled to commence construction of the Intended Improvements.
Nothing in this agreement shall constitute Approvals by Seller, and Buyer acknowledges
that it must comply with all of Seller's development standards, guidelines and procedures
that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
Dustin Do
6500 E. Carnegie Ave
Anaheim, CA 92807
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
9
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-022-09
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
0
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: 6 )(-
J n M. Funk
Assistant City Attorney
BUYER:
Dustin Do
By: 1
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "A"
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THAT PORTION OF LOT 29 OF TRACT MAP NO. 1457 AS PER THE MAP FILED IN
BOOK 53, PAGE 2 OF MISCELLANEOUS MAPS; OFFICIAL RECORDS OF SAID
COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOT 29 GRANTED IN FEE
FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT NUMBER
2z-") pv yq 9 "1 Z 1 , OFFICIAL RECORDS OF SAID COUNTY.
CONTAINING AN APPROXIMATE AREA OF 4600 SQUARE FEET MORE OR LESS
SUBJECT TO EASEMENTS; RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION;
JOHN M.
GONZALES
No. 9065 % *
OF
PAGE 1 OF 1
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
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RADIAL LINE 1 = S 290 30' 56" E
RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500.
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PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
APPROVED AS TO
APPROVED BY
DESCRIPTION
DISCRIPTION
AP
R/WMAP
PARCEL
FORM BY ATTY.
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010-022-09
R8
DEED NIiALBER
1306 W. RAYMAR STREET
8746
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
DVD Construction, the real property in the City of Santa Ana, County of Orange, State of
California. described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
ORIGINAL COPY
3b. Development Team's Past Experience
The same group of companies in the organizational chart above just
completed a 2-story 1,600 sf new construction residential house together in
Long Beach. The property is currently in escrow and is estimated to close
on May 3111, 2019. The development teams' expertise in residential
construction eased the process with experience and hard work. I was the
owner/investor of the project and self -funded with cash savings from
working for another contractor, that is how I funded the project. The cash
from this sale will be used to pay for the expenses incurred on this project.
3c. No previous experience with public entities within Orange County.
3d. Dustin Do will be the one to purchase the land, develop, and pay for
all expenses as a personal investment. The only reason DVD Construction
was included in the proposal was because I am registered in Planet Bids
under my company name "DVD Construction". The buyer in the contract
will be Dustin Do, not DVD Construction.
4. Project Description
New construction of a 2-story single family residence that matches the style
and texture of the existing neighborhood using the City of Santa Ana
residential guidelines. The idea is to avoid a box -link structure and to have
architectural details to beautify the neighborhood and provide cost effective
housing for local residents. Around 2,000 sf of living space with 4
bedrooms and 4 baths will provide a comfortable living situation for a
growing family. 2-car garage with 2 cars available to park on the driveway
and 1 on the street if needed. Energy efficient materials and sustainable
design components will be utilized for long term sustainability on the
project. Current zoning of R-1 provides the necessary tools to build a
single-family residence that will increase the value of land in Santa Ana.
Development cost of $215,000 will cover everything from start to finish.
5. No letter of intent from tenants, however there are tons of people who
would like to own their own house in Santa Ana and they deserve a chance
to be a homeowner too.
PARCEL R8
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-183-01, 010-183-42, 010-183-43, 010-183-44
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 010-183-01, 010-183-42, 010-183-43, 010-183-44 located
at 701 - 711 S Bristol St. in the City of Santa Ana, County of Orange, State of California.
Buyer desires to purchase a fee interest in such real property owned by Seller as more
particularly described and depicted in Exhibit "A", attached hereto and made part hereof
("Property"), and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJil4.rI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $357,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Triplex (the "Intended
Use"), such that immediately following the acquisition of the Approvals, Buyer shall be
entitled to commence construction of the Intended Improvements. Nothing in this
agreement shall constitute Approvals by Seller, and Buyer acknowledges that it must
comply with all of Seller's development standards, guidelines and procedures that are
applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-183-01, 010-183-42, 010-183-43, 010-183-44
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: 14 Ig" T
JUhn M. Funk
Assistant City Attorney
BUYER:
[AS Managem nt
By:
11
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT "All
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THE NORTH HALF OF LOT 3, AND ALL OF LOTS 1 AND LOT 2 OF TRACT MAP NO,
228 AS PER THE MAP FILED IN BOOK 13, PAGE 19 OF MISCELLANEOUS MAPS,
OFFICIAL RECORDS OF SAID COUNTY, EXCEPTING THEREFROM THAT PORTION
OF LOTS 1, 2 AND 3 GRANTED IN FEE FOR PUBLIC STREET PURPOSES
RECORDED AS INSTRUMENT NUMBER 26 19 oo.0 41 `1 P H 22
OFFICIAL RECORDS OF SAID COUNTY.
CONTAINING AN APPROXIMATE AREA OF 11,880 SQUARE FEET,
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
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LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
THE NORTH HALF OF LOT 3, AND ALL OF LOTS 1 AND LOT 2 OF TRACT MAP NO,
228 AS PER THE MAP FILED IN BOOK 13, PAGE 19 OF MISCELLANEOUS MAPS,
OFFICIAL RECORDS OF SAID COUNTY, EXCEPTING THEREFROM THAT PORTION
OF LOTS 1, 2 AND 3 GRANTED IN FEE FOR PUBLIC STREET PURPOSES
RECORDED AS INSTRUMENT NUMBER 26 19 oo.0 41 `1 P H 22
OFFICIAL RECORDS OF SAID COUNTY.
CONTAINING AN APPROXIMATE AREA OF 11,880 SQUARE FEET,
SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER
RIGHTS OF RECORD.
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
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THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION:
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When recorded, please mail this
Instnmient to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXES
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GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
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PARCEL R9 �
AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-183-40, 010-183-41, 010-183-42
THIS AGREEMENT of Purchase and Sale ("Agreement'), dated
, 2019, is entered into by and between the CITY OF SANTA ANA, a
California charter city and municipal corporation ("Seller") and IAS Management(" Buyer")
for the acquisition by Buyer of certain real property described below.
RECITALS
A. Seller owns certain real property commonly known as Orange County
Assessor Parcel Nos. (APN) 010-183-40, 010-183-41, 010-183-42 located at 711 - 717
S Bristol St. in the City of Santa Ana, County of Orange, State of California. Buyer desires
to purchase a fee interest in such real property owned by Seller as more particularly
described and depicted in Exhibit "A", attached hereto and made part hereof ("Property"),
and Seller desires to sell the Property.
B. A copy of the Grant Deed for the Property in executable format, by which
Seller shall convey the Property to Buyer upon the Close of Escrow (as defined below) is
attached as Exhibit "B" and incorporated by this reference.
C. The parties desire by this Agreement to provide the terms and conditions
for the purchase and sale of the Property.
File] N=I =IJi14.kI
The parties therefore agree as follows:
PURCHASE
Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the
purchase price and upon the terms and conditions hereinafter set forth.
2. ESCROW
Upon execution of this Agreement by all parties, the parties shall open an escrow
("Escrow") with Commonwealth Land Title Company ("Escrow Holder"), whose address
is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of
consummating the purchase and sale of the Property, as described herein. The date on
which Escrow is opened with Escrow Holder shall be referred to as the "Effective Date."
The parties shall execute and deliver to Escrow Holder such escrow instructions prepared
by Escrow Holder, as may be required to consummate the transaction contemplated by
this Agreement. If there is any inconsistency between such instructions and this
Agreement, this Agreement shall control unless the parties expressively agree in writing
otherwise. The Escrow instructions shall include the following terms and conditions of
sale:
1
acu 3rSW
2.1 Purchase Price
The total purchase price for the Property shall be the sum of $251,700
("Purchase Price").
(a) Escrow Deposit. Within three (3) business days following the
Effective Date, Buyer will remit into escrow a deposit equal to nine percent (9%) of the
Purchase Price ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until
the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow
Deposit shall be credited towards the Purchase Price paid to Seller as provided in this
Agreement.
(b) Proposal Deposit. As part of the proposal submitted for this
site, Buyer paid to Seller a proposal deposit equal to one percent (1 %) of the Purchase
Price ("Proposal Deposit"). The Proposal Deposit shall be retained by the Seller and
credited to the Buyer towards the Purchase Price.
(c) Closing Payment. The Purchase Price, as adjusted by the
application of the Proposal Deposit, Escrow Deposit and by any proration and credits
specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the
amount to be paid under this Section 2.1(c) being herein called the "Closing Payment').
(d) Independent Consideration. Escrow Holder shall pay a
portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00)
("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow
(as defined below) or the termination of this Agreement for any reason. The Independent
Consideration constitutes bargained -for consideration for this Agreement and Buyer's
rights under Section 2.6(d) and is expressly acknowledged to be adequate. The
obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the
obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive
any termination of this Agreement.
2.2 Close of Escrow
If Buyer does not exercise its right to terminate this Agreement under
Section 2.6(d) prior to the expiration of the Due Diligence Period (as defined below), then
Escrow shall close ("Close of Escrow") on or before December 20, 2019. If Escrow is
not in a condition to close by such date, Escrow shall be closed as soon as possible
thereafter.
2
2.3 Condition of Title to Property
Seller shall cause the conveyance of title to the Property to Buyer as
evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any
easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title
Company ("Title Company") in an amount equal to the Purchase Price. During the Due
Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title
commitment (the "Title Commitment') binding the Title Company to issue the Title Policy
to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as
exceptions with respect to the Property only matters approved in writing by Buyer, which
approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due
Diligence Period. Buyer shall in addition have approved in writing the legal description of
the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence
Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically
appearing on an ALTA title insurance policy, including the gap exception, the exception
relating to parties in possession, the survey exception, and all exceptions related to
mechanics liens to be deleted from the Title Commitment.
2.4 Escrow and Closing Costs
Buyer shall pay the cost of the Title Policy, the Escrow Fees and all
documentary transfer fees and recording fees, as may be applicable, and all other costs
and expenses incurred related to the purchase of the Property by Buyer (collectively,
"Closing Costs"). Seller shall pay all other costs and expenses incurred by Seller related
to the sale of the Property.
2.5 Deposit of Funds and Documents
(a) Prior to Close of Escrow, Buyer shall deposit into Escrow
(i) the Escrow Deposit, (ii) all escrow and Closing Costs as described above; (iii) the
Closing Payment; and (iv) such other documentation as is necessary to close Escrow;
provided, however, that Buyer shall not be required to deposit the Closing Payment until
Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder
each of the documents and instruments to be delivered by Seller in connection with the
sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to
issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is
delivery of such amount by or on behalf of Buyer.
(b) Prior to the Close of Escrow, Seller shall deposit into Escrow
(i) the properly executed grant deed for conveyance of the Property to Buyer and (ii) such
other documents and sums, if any, as are necessary to close Escrow in conformance
herewith.
2.6 Buyer's Conditions Precedent to Close of Escrow
The obligation of Buyer to purchase the Property as contemplated by this
Agreement and the Close of Escrow is subject to satisfaction of each of the following
conditions:
3
(a) All representations and warranties of Seller set forth in this
Agreement shall be true and correct as of the date of the Close of Escrow.
(b) Seller shall timely perform all obligations required by the terms
of this Agreement to be performed by it.
(c) The irrevocable and unconditional written agreement of Title
Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title
Policy, effective as of the date and time the deed is recorded.
(d) Buyer shall have seven (7) calendar days, from the opening
of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's
due diligence examinations, reviews and inspections of all matters pertaining to the
Property, including all leases and service contracts, all physical, environmental and
compliance matters and conditions respecting the Property, and satisfy its contingencies
("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide
Buyer with reasonable access to the Property, as further set forth below. Within three (3)
days following the Effective Date, Seller shall deliver to Buyer true and complete copies
of any environmental reports, title documents and any other agreements, documents, or
information pertaining to the Property to the extent in Seller's possession or reasonably
obtainable by Seller. Seller will make every effort to provide all pertinent documents, but
Seller's inability or failure to provide any document shall not be considered a violation
subject to termination of the Agreement. At any time on or before the last day of the Due
Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no
reason, give written notice ("Termination Notice") to Seller electing to terminate this
Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied,
the Escrow Deposit (less the Independent Consideration) shall be immediately returned
by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties
hereunder, shall terminate (other than those obligations that expressly survive a
termination of this Agreement). In the event of termination by Buyer pursuant to this
section, the Proposal Deposit shall be nonrefundable and shall be retained by Seller. If
Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due
Diligence Period, then Buyer shall have no further right to terminate this Agreement and
have the Escrow Deposit (less the Independent Consideration) returned to Buyer except
as otherwise set forth herein.
(e) No material adverse physical change to the Property,
including those caused by condemnation and/or casualty, shall have occurred
subsequent to the Effective Date and on or prior to the Close of Escrow.
2.7 Seller Conditions Precedent to Close of Escrow
For the benefit of Seller, the Close of Escrow shall be conditioned upon the
timely performance by Buyer of all obligations required by the terms of this Agreement.
2.8 License to Enter Property During Due Diligence Period
0
Seller licenses the Buyer and its contractors to enter the Property for the
purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary
and appropriate. The license given in this Section 2.8 shall only be effective until the
earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of
any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence
Investigations during the Due Diligence Period at its sole cost and expense. The Buyer
shall abide by any reasonable condition(s) of entry onto the Property required by Seller,
whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer
shall not unreasonably disrupt any then -existing use or occupancy of the Property.
(a) Limitations. The Buyer shall not conduct any intrusive or
destructive testing of any portion of the Property, other than low volume soil samples,
without Seller's prior written consent. Following the conduct of any Due Diligence
Investigations on the Property, the Buyer shall restore the Property to substantially its
condition prior to the conduct of such Due Diligence Investigations.
(b) Indemnity. Buyer agrees to indemnify, defend and hold the
Seller, and its officers, employees and agents, harmless from and against all actual
damages, judgments, costs, expenses and fees arising from or related to any act or
omission of Buyer in performing its Due Diligence Investigations under this Agreement
(excluding discovery of any pre-existing conditions at the Property), except to the extent
arising out of the negligence or willful misconduct of Seller, its officers, employees or
agents.
(c) Insurance. Prior to any entry upon the Property by or on
behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a
certificate of Buyer's liability insurance policy designating Seller as an additional insured.
The foregoing certificate shall evidence that Buyer has obtained a policy or policies of
comprehensive general liability and property damage insurance against loss, damage or
liability for injury to or death of any person, or loss or damage to property occurring in or
about the Property. Such insurance shall include comprehensive general liability
coverage for bodily injury and property damage in the amount of at least $1,000,000.00
combined single limit, and shall include automobile liability coverage for bodily injury and
property damage in the amount of at least $1,000,000.00 combined single limit. The
foregoing policy or policies shall contain a provision that such policy or policies will not be
cancelled, reduced in coverage, renewed or otherwise amended in any manner until at
least thirty (30) days prior written notice has been given to Seller. Buyer shall see that
insurance coverage as provided in this paragraph is maintained throughout the duration
of Buyer's right of entry onto the Property.
3. REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 Representation and Warranties of Seller
Seller makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow:
5
(a) The execution and delivery of this Agreement by Seller,
Seller's performance hereunder, and the consummation of the transaction contemplated
hereby will not result in the breach of any contract or agreement to which Seller is at
present a party or by which Seller is bound; and
(b) Sellerwill not enter into any agreements or undertake any new
obligations prior to Close of Escrow which will in any way burden, encumber or otherwise
affect the Property without the prior written consent of the Buyer; and
(c) Seller, as a government agency, has not been subject to real
property tax assessment on the property. Transfer of title to Buyer at the Close of Escrow
will subject the Property to an assessment from the Orange County Office of the Assessor
and shall be the obligation of the Buyer henceforth; and
(d) Seller is aware of its obligation under California Health and
Safety Code Section 25359.7 to disclose any knowledge which they may have regarding
any release of Hazardous Substances (as defined by applicable federal, state and local
statutes, rules and regulations) upon or under the Property. Seller warrants and
represents to Buyer that Seller is not aware that any such Hazardous Substances have
been generated, stored or disposed of upon or under the Property.
3.2 Representations and Warranties of Buyer
Buyer makes the following representations and warranties with respect to
the Property, each of which shall survive Close of Escrow.
(a) Subject to Permitted Delay (as defined herein), Buyer hereby
represents and guarantees that it will complete construction and development of the
Property for the Intended Use (defined below) within 18 months following the Close of
Escrow ("Project Deadline"). If Buyer does not comply with the Project Deadline, Seller
may elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to
the terms and conditions in this section. Seller shall provide written notice to Buyer of
its exercise (the "Exercise Notice") within one hundred eighty (180) days following the
Project Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for
closing that is no less than thirty (30) days following the date of the Exercise Notice, with
such closing then occurring on a date mutually convenient to both Seller and Buyer (the
"Repurchase Closing Date"). If Seller fails to deliver its Exercise Notice to Buyer within
the Exercise Window, then the Repurchase Right shall automatically terminate and be of
no further force and effect. The repurchase deed shall be identical in form to the deed by
which title to the Property was conveyed by Seller to Buyer and shall be free and clear of
any and all mortgage liens or other evidence of indebtedness. The purchase price to be
paid by Seller to Buyer for the Property shall be equal to eighty percent (80%) of the
Purchase Price paid by Buyer to Seller under this Agreement. As used herein, the term
"Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake;
flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence;
sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to
procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the
0
open market; failure of transportation; strikes (other than any strike resulting from acts of
Buyer); lockouts; action of labor unions; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not within
Buyer's reasonable control. Notwithstanding anything to the contrary contained herein,
in no event shall financial inability of Buyer constitute Permitted Delay.
(b) Buyer shall obtain all final approvals, including, without
limitation, the building permit and all related municipal approvals (the "Approvals")
necessary for developing the Property in substantial conformance with the site plan that
was included with Buyer's proposal for the Property submitted in response to City's
Request for Proposal No. 19-026 (a copy of which is attached as Exhibit "C", (the
"Intended Improvements") appropriate for the operation of a Single Family Residence +
ADU (the "Intended Use"), such that immediately following the acquisition of the
Approvals, Buyer shall be entitled to commence construction of the Intended
Improvements. Nothing in this agreement shall constitute Approvals by Seller, and Buyer
acknowledges that it must comply with all of Seller's development standards, guidelines
and procedures that are applicable to the Intended Improvements and the Intended Use.
(c) The execution and delivery of the Agreement by Buyer,
Buyer's performance hereunder, and the consummation of the transaction contemplated
hereby will not constitute a violation of any order or decree or result in the breach of any
contract or agreement to which Buyer is at present a party or by which Buyer is bound;
and
(d) No other action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement, except as otherwise expressly
set forth herein.
4. REMEDIES
If Seller defaults under this Agreement, then Buyer may either: (i) terminate this
Agreement by written notice to Seller, whereupon the Escrow Deposit (less the
Independent Consideration) shall be immediately returned by the Escrow Holder to
Buyer, and this Agreement and the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement); or
(ii) bring an action for specific performance of this Agreement. If Buyer defaults under
this Agreement, and such default is not cured within thirty (30) days following the date of
Seller's written notice of default to Buyer, then Seller may, as Seller's sole and exclusive
remedy under this Agreement by reason of such default, terminate this Agreement by
written notice to Buyer, whereupon the obligations of the parties hereunder shall terminate
(other than those obligations that expressly survive a termination of this Agreement) and
the Escrow Deposit shall be delivered to Seller as full compensation and liquidated
damages under and in connection with this Agreement, and in such event, Buyer shall
not be liable to Seller for monetary damages except for full payment of the amount of the
Escrow Deposit due at the time of termination and forfeiture of said Escrow Deposit to the
Seller. Under no circumstances shall Buyer be entitled to a refund of the Proposal
Deposit, which shall be retained by Seller.
7
5. RIGHT OF POSSESSION
Seller hereby grants Buyer and its representatives, agents, consultants and
contractors, physical and legal possession of the Property effective as of the Close of
Escrow.
6. AS IS CONDITION
Buyer shall rely solely and exclusively upon the results of its Due Diligence
Investigations of the Property with regard to any physical condition or state of the
Property. By completing the purchase of the Property following its Due Diligence
Investigations, Buyer evidences its unconditional acceptance of the condition of the
Property. Buyer acknowledges and agrees that Buyer is purchasing the Property on an
"AS -IS," "WHERE -IS" basis. Buyer is not offering to purchase the property based on any
representation by Seller or Seller's agent except those expressly set forth in Section 3.1.
Buyer hereby acknowledges that the purchase of the Property is without warranties of
any kind from Seller, expressed or implied, except as expressly set forth in Section 3.1,
as to the condition of the Property or its improvements, if any, including, without implied
limitation, soils, access to the Property or to utilities, appliances, structure utility systems,
roof, foundation, landscaping or any other component of the Property. Seller does not
warrant that the Property conforms with any ordinances, including, without implied
limitation, zoning or building ordinances.
7. MISCELLANEOUS
7.1 Notice
Any notice to be given or other document or documents to be delivered to
either party by the other hereunder may be delivered (a) in person, (b) by overnight
courier, (c) by facsimile or as a PDF or similar attachment to an email (provided that such
facsimile or email attachment shall be followed within one (1) business day by delivery of
such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of
California, duly registered or certified, with postage prepaid, and addressed as follows:
Seller: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: Clerk of the Council
Copy to: Executive Director of Public Works Agency
(at same address)
0
Buyer:
IAS Management
25 Brookline
Aliso Viejo, CA 92656
Any notice or other document sent by personal delivery, overnight courier
or registered or certified mail as aforesaid shall be considered to have been effectively
served or delivered on the day of actual delivery (whether accepted or refused) as
evidenced by printed confirmation if by facsimile or email (provided that if any notice or
other communication to be delivered by facsimile or email attachment as provided above
cannot be transmitted because of a problem affecting the receiving party's facsimile
machine or computer, the deadline for receiving such notice or other communication shall
be extended through the next business day), as shown by the addressee's return receipt
if by certified mail, and as confirmed by the courier service if by courier; provided,
however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or
on a non -business day, then such notice or communication so made shall be deemed
effective on the first business day after the day of actual delivery.
7.2 Time of Essence
Time is of the essence with respect to each and every provision hereof.
7.3 Assignment
Neither this Agreement, nor any interest herein, shall be assignable by any
party without prior written consent of the other, non -assigning party hereto. For Seller,
the City Manager or designee shall have the authority to review and approve or deny any
request for assignment.
7.4 Governing Law
All questions with respect to this Agreement, and rights and liabilities of the
parties hereto, shall be governed by the laws of the State of California. Venue shall be in
the County of Orange.
7.5 Inurement
Subject to the restrictions against assignment as herein contained, this
Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors
in interest, personal representatives, estates, heirs and legatees of each of the parties
hereto.
7.6 Attorney's Fees
In the event of any controversy, claim or dispute between the parties hereto,
arising out of or relating to this Agreement or the breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, attorney fees and costs.
0
7.7 Entire Agreement
The Agreement contains the entire Agreement of the parties hereto, and
supersedes any prior written or oral agreements between them concerning the subject
matter contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties hereto, relating to the subject matter
contained in this Agreement which are not fully expressed herein.
7.8 Additional Documents
All parties hereto agree to execute any and all additional documents and
instruments necessary to carry out the terms of this Agreement.
7.9 Authority to Execute Agreement
The persons executing this Agreement and the instruments referenced
herein on behalf of Buyer and Seller hereby represent and warrant that such persons
have the right, power and authority to bind Buyer and Seller, respectively.
7.10 Counterparts
This Agreement may be signed in counterpart or duplicate copies, and any
signed counterpart or duplicate copy shall be equivalent to a signed original for all
purposes.
[SIGNATURES ON NEXT PAGE]
10
SIGNATURE PAGE TO AGREEMENT
OF PURCHASE AND SALE
ASSESSOR PARCEL NUMBER(S): 010-18340, 010-183-41, 010-183-42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER:
CITY OF SANTA ANA, a California charter city and
municipal corporation
By:
Kristine Ridge
City Manager
ATTEST:
By:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
By: 14 7g,
hn M. Funk
Assistant City Attorney
BUYER:
IAS Management
By:
11
Type text here
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller in and to that certain real property located in the City
of Santa Ana, Orange County, California, described in the following exhibit A & B:
[attached behind this page]
EXHIBIT A
In the City of Santa Ana, County of Orange, State of California, being those portions of the
South half of Lot 3, Lot 4, and Lot 5, of Tract Map 228, per map recorded in Book 13, page 19 of
Miscellaneous Maps, in the Office of the County Recorder of said County,
Except that land described in a Deed as Instrument Number � 0)9000 q jgg Z3 official records
of said County,
Also Except the Easterly 20.00 feet of said Lots,
Containing 8,121.0 square feet, more or less.
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by me, or under my direction on 1 j ,
l
John M. Gonzales, PLS 9065_
JOHN M.
GONZALES
No.9065 %*
,F
EXIBIT B
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
PUBLIC RIGHT OF
WAY
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-------------------------------------------
HIGHLAND STREET
PUBLIC STREET R/W PER INST. N0. 2ol� occg'1 B y2 3
( ) = TRACT MAP 228, M.M. 13/29.
........... = LOT LINES PER TRACT 228.
® = 10' EASEMENTS TO THE CITY OF SANTA ANA
4
= DEED BOOK
2198, PAGE
229
D.R.
5
= DEED BOOK
2243, PAGE
376
O.R.
6
= DEED BOOK
2158, PAGE
634
D.R.
CURVE DATA
=
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L =
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L =
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31 = N 56058' 12" W
RIGHT OF WAY IS BASED ON CITY OF SANTA ANA
BRISTOL STREET IMPROVEMENT PLANS 06-1500. PAGE 1 OF 1
EXHIBIT "B"
GRANT DEED (TO BE EXECUTED)
[attached behind this page]
When recorded, please mail this
Instrument to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
The City of Santa Ana per
Government Code Section 6103, 27383.
USE
SPACE ABOVE THIS LINE FOR RECORDER'S
TAXLS
%PPROALEAS 10
APPROVLDBY
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PARCLL
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IL MBLR
NUMBER
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010-183-40, 41 & 42
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DEED?TMEER
711 — 717 S. BRISTOL STREET
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
The CITY OF SANTA ANA, a Charter City and Municipal Corporation duly organized under the
Constitution and laws of the State of California hereby GRANT(s) to:
IAS Management, the real property in the City of Santa Ana, County of Orange, State of California,
described as follows:
See Exhibit "A' attached hereto and by this reference made a part hereof,
and as shown on Exhibit "B" attached hereto reference only.
Dated: By:
Kristine Ridge
City Manager, City of Santa Ana
Attested by:
Dated: By:
Daisy Gomez
City Clerk, City of Santa Ana
EXHIBIT "C
INTENDEDIMPROVEMENTS
[attached behind this page]
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