HomeMy WebLinkAboutSANTANA GREEN DEVELOPMENT, LLCU�,�f 1 2 .i!22
INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
A-2021-247
DATb
r \ PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into
this )S day of 2021 ("Effective Date"), by and between Santana Green
Development LLC, a California limited liability company ("Bayer"), and the CITY OF SANTA
ANA, a charter city and municipal corporation organized and existing under the Constitution and
laws of the State of California ("Seller" or "City'l. As used herein, Buyer and Seller may be
referred to collectively as the "Parties," and each individually as a "Party."
RECITALS
A. City is the fee simple owner of that certain real property consisting of
approximately 17,415 square feet, located at 2235 S. Bristol Street (APN No. 015-194-40), and
1211 W. Warner Street (APN No. 015-194-37) Santa Ana, California, legally described in
Exhibit "A" attached to this Agreement and incorporated into this Agreement in its entirety by
this reference (the "Property").
B. On April 21, 2020, the Santa Ana City Council adopted Resolution No. 2020-032
declaring the Property as surplus land and directing the City Manager to comply with the
requirements of California Government Code Section 54220 et seq. ("Surplus Land Act") for the
disposition of the Property.
C. On April 27, 2020, the City released a Notice of Availability ("NOA') of surplus
property for the Property for a period of sixty days. This NOA was sent out to all " local public
entities," as defined in Health and Safety Code section 50079, within whose jurisdiction the
surplus land is located, and to "Housing Sponsors" that have notified the California Department
of Housing and Community Development ("HCD") of their interest in surplus land. The NOA
was also sent to local parks agencies and school districts.
D. The Property was among those for which either no responses were received by
entities receiving the notices of availability or for which responses were received and good faith
negotiations ended after a period of not less than 90 days without agreement to price and terms.
E. On December 10, 2020, the City issued Request for Proposal 21-159, by which it
sought Proposals for the development of various vacant properties in the City of Santa Ana,
including the Property that is the subject of this Agreement.
F. Evaluation and negotiations have concluded, and the City has otherwise complied
with all applicable requirements of the Surplus Land Act prior to the sale of the Property.
G. City now desires to sell the Property to Buyer, and Buyer desires to purchase the
Property from City, in accordance with the provisions of this Agreement.
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AGREEMENT
NOW THEREFORE, incorporating the foregoing Recitals and in consideration of the
mutual covenants and agreements herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
I. Incgr oration of Recitals. The recitals of fact set forth above are true and correct
and are incorporated into this Agreement in their entirety by this reference.
2. Purchase and Sale- Purchase Price.
2.1 Purchase and Sale. Seller shall sell the Properly to Buyer, and Buyer shall purchase
the Property from Seller, subject to the terms and conditions set forth in this Agreement.
2.2 Purchase Price. The purchase price of the Property shall be Nine Hundred Thousand
Dollars ($900,000.00).
Escrow.
3.1 Escrow Instructions. Within seven (7) days following the execution of this
Agreement by the Parties, Buyer will open an escrow ("Escrow") with Commonwealth Land Title
Company, 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, Attn: Grace Kim ("Escrow
Holder") for the purchase and sale of the Property. The "Opening of Escrow" shall mean the date on
which a fully executed copy of this Agreement has been delivered to Escrow I-Tolder. Escrow Holder shall
confirm the Opening of Escrow to the Parties in writing. This Agreement constitutes joint escrow
instructions to Escrow Holder. The Parties agree to execute such additional instructions consistent with
the provisions of this Agreement, which may be required by Escrow Holder. As between the Parties, Buyer
and Seller agree that, if there is any conflict between the terms of this Agreement and any Escrow
Instructions required by Escrow Holier, the terms of this Agreement shall control. Buyer and Seller shall
each furnish Escrow Holder with their respective Federal Tax Identification Numbers and such other
information as is reasonably required by Escrow Holder.
3.2 Payment of Purchase Price. The Purchase Price for the Property shall be payable at
Closing. If Seller has deposited into Escrow all documents and amounts required of Seller to close Escrow,
including without limitation, the "Grant Deed" (as defined in Section 3.10 below), and complied with all
of Seller's other obligations under this Agreement, then on or before the "Closing Date" (as defined
Section 3.3 below) so as not to delay the "Close of Escrow" (as defined Section 3.3 below), Buyer shall
deposit into Escrow the following in Acceptable Funds: (a) the Purchase Price and (b) the Escrow closing
costs pursuant to the preliminary Escrow Closing statement furnished by Escrow Holder as provided below.
3.3 Close of Escrow. Subject to Sections 3.3.1 and 31 Escrow for the sale of the
Property shall close on a date that is no later than thirty (30) days after the opening of Escrow ("Closing
Date"), subject to reasonable extension as necessary in order to satisfy the conditions precedent and other
requirements for the Close of Escrow. As used in this Agreement, "Close of Escrow" shall mean the date
on -which the "Grant Deed" conveying fee title to the Property to Buyer is recorded in the Orange County
Recorder's Office.
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3. 1 Conditions Precedent to Buyer Obligation to
Close. Buyer's obligation to close Escrow and purchase the Property is
expressly conditioned on the satisfaction of the conditions listed in this
Section 3.3.1. If any such condition is not satisfied or waived by Buyer at or
prior to the Close of Escrow, for any reason other than a default by Buyer, Buyer
may, in its sole discretion and without limiting any of Buyer's legal remedies or
remedies under this Agreement, terminate this Agreement by written notice to
Seller.
(1) Title Polio. Escrow Holder has issued or is irrevocably
committed to issue to Buyer the "'Title Policy" (as defined in Section 3.6 below) showing fee title
vested in Buyer subject only to "Permitted Exceptions" (as defined in Section 3.5 below).
(2) Representations and Warranties. Each of Seller's
representations and warranties in this Agreement are materially hue and accurate as of the Close
of Escrow.
(3) Seller Obligations. Seller is not in material default under this
Agreement and each material obligation of Seller to be performed prior to the Close of Escrow,
has been performed as required, including, without limitation the delivery of all documents
required of Seller under this Agreement.
(4) Possession. Seller is able, at the Close of Escrow to deliver
exclusive possession of the Property to Buyer in accordance with this Agreement and does so.
3.3.2 Conditions Precedent to _ Seller Obligation to
Close. Seller's obligation to close Escrow and sell the Property is expressly
conditioned upon the satisfaction of the conditions listed in this Section 3.3.2. If
any such condition is not satisfied or waived by Seller prior to the Close of
Escrow for any reason other than a default by Seller, Seller may, in its sole
discretion and without limiting any of Seller's legal remedies or remedies under
this Agreement, terminate this Agreement by written notice to Buyer.
(1) Representations and Warranties. Each of Buyer's
representations and warranties set forth in this Agreement are materially true and accurate as of
the Close of Escrow.
(2) Bins Obligations. Buyer is not in material default under
this Agreement, and each material obligation of Buyer to be performed prior to the Close of Escrow
hereunder has been performed as required.
3.4 Escrow Cancellation,
3.4.1 Charges.
(1) Seller's_ Default. If Escrow fails to close due to Seller's
default, Seller shall pay all Escrow cancellation charges. "Escrow cancellation charges" means
all fees, charges and expenses charged or passed on to the Parties by Escrow Holder, including all
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title expenses. Buyer shall be entitled to terminate this Agreement or bring an action against Seller
for specific performance as its sole and exclusive remedies,
(2) Buyer's Default. If Escrow fails to close due to Buyer's
default, Buyer shall pay all Escrow cancellation charges and Seller shall be entitled to terminate
this Agreement as its sole and exclusive remedy,
(3) No Default, If Escrow fails to close and this Agreement is
terminated for any reason other than a default by one of the Parties, Buyer and Seller shall evenly
split any Escrow cancellation charges,
3.5 Permitted Exceptions to Title, As soon reasonably possible after the Opening of
Escrow, Escrow Holder shall cause Commonwealth Land Title Company, in its capacity as title insurer
("Title Company"), to deliver to Buyer and Seller a current preliminary title report ("Title Report")
together with legible copies of all underlying documents referenced therein (together with the Title Report,
the "Title Documents"). The term "Permitted Exceptions" as used in this Agreement shall mean all of
the following: (a) the Grant Deed; (b) the Affordable Housing Covenant; (c) non -delinquent real property
taxes and assessments; (d) items and exceptions created by or with the written consent of Buyer, including
documents to be recorded pursuant to this Agreement, and (e) the title exceptions shown on the Title Report
but excluding any (i) "Disapproved Exceptions" as defined below that Seller, in its sole discretion, agrees
to remove prior to the Close of Escrow as provided below and (ii) all monetary liens and monetary
encumbrances on the Property, other than non -delinquent real property taxes and assessments which will
be removed (meaning removal from title and not the issuance of an endorsement in connection therewith
by the Title Company) fi-om title by Seller at its sole cost and expense prior to the Close of Escrow. If
Buyer objects to any title exceptions in its sole and absolute discretion ("Disapproved Exceptions"), Buyer
shall deliver written notice ("Objection Notice") of same to Seller within ten (10) business days of delivery
of the initial Title Report to Buyer. Seller shall act in good faith and reasonably to resolve any title
exception in the Objection Notice. If Buyer fails to deliver an Objection Notice but delivers a "Notice of
Approval", Buyer shall be deemed to have approved title to the Property subject to the Permitted
Exceptions. If Buyer delivers an Objection Notice regarding a title exception and Seller, by delivery of
written notice to Buyer within five (5) business days following receipt of the Objection Notice elects not
to remove a material Disapproved Exception (Seller's failure to respond to a Buyer Objection Notice shall
be deemed such an election), Buyer's sole remedies shall be with respect to the delivery of a Notice of
Approval or delivery or deemed delivery of a Notice of Termination.
3,6 Title Insurance, Seller shall cause the Title Company to commit to issue to Buyer
at the Close of Escrow a standard coverage ALTA Owner's policy of title insurance with mechanics lien
endorsement (Seller shall provide, any indemnity or other agreement required by the Title Company as a
condition to the issuance of the mechanics lien endorsement) ("Title Policy") insuring fee title to the
Property vested in Buyer subject only to the Permitted Exceptions, with coverage in an amount equal to
the Purchase Price, If Buyer requires an extended coverage ALTA Owners policy of title insurance, Buyer
shall pay the difference in cost between the standard and extended coverage and the cost of any
endorsements (other than a mechanics hen endorsement issued in connection with the standard coverage
Title Policy which shall be at the cost of Seiler) (`Buyer Title Costs"), Seller shall only be responsible
for that portion of the cost of the Title Policy equal to the cost of a standard coverage title policy ("Seller
Title Costs").
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3.10 Grant Deed. The transfer of ownership of the Property shall be documented through
a Grant Deed in the form attached hereto as Exhibit "B" and incorporated herein by reference, conveying
the Property to Buyer ("Grant Deed").
3.10.1 Affordable Housing CovenanC in t,.e BvsnC of
Residential Develo ment. In accordance with California Government Code
Section 54233, if 10 or more residential units are developed on the Property, not
less than 15 percent of the total number of residential units developed on the
Property shall be sold or rented at affordable housing cost, as defined in Section
50052.5 of the Health and Safety Code, or affordable rent, as defined in Section
50053 of the Health and Safety Code, to lower income households, as defined in
Section 50079.5 of the Health and Safety Code. Rental units shall remain
affordable to, and occupied by, lower income households for a period of at least
55 years for rental housing and 45 years for ownership housing. The initial
occupants of all ownership units shall be lower income households, and the units
shall be subject to an equity sharing agreement consistent with the provisions of
paragraph (2) of subdivision (c) of Section 65915 of the Government Code.
Buyer expressly agrees and consents that the requirements of this section shall
be contained in a covenant or restriction recorded against the Property prior to
land use entitlement of the project, and the covenant or restriction shall run with
the land and shall be enforceable, against any owner who violates a covenant or
restriction and each successor in interest who continues the violation, by any of
the entities described in subdivisions (a) to (f), inclusive, of Section 54222,5 of
the Government Code.
3.11 Recordation and Delivery of Documents. No later than the business day
immediately prior to the Closing Date, Buyer and Seller, as applicable, will deposit into Escrow the
following documents (with the documents that are to be recorded in the following order and delivered as
provided below);
3.11.1 gLajrt Deed, One (1) fully executed and
acknowledged copy of the Grant Deed conveying the Property to Buyer.
Conformed copies of the recorded Grant Deed shall be returned to Buyer and
Seller as soon as possible.
3.11.2 Withholding_Exemption Certificates. One
(1) completed and executed copy of the following; Non -foreign Transferor
Declaration; Preliminary Change in Ownership Report, Internal Revenue
Service Form 1099-5, and California Franchise Tax Board Form 593 and any
other applicable state tax withholding forms, as applicable.
3,11.3 Disbursement of Closing Documents. As soon as
reasonably possible following the Close of Escrow, Escrow Holder shall deliver
copies of all closing documents, including, without limitation, those listed above,
the Title Policy, any additional escrow instructions and the final Escrow closing
statement, to Seller's counsel and Buyer's counsel.
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3.12 Seller's Proceeds, At the Close of Escrow, subject to Section 3.13 below, Escrow
Holder is directed to wire funds representing Seller's cash proceeds through Escrow to Seller' s account as
directed in separate written instructions to be provided by Seller.
3.13 Cal-FIRPTA Withholding, Unless this transaction is exempt under California
Revenue and Taxation Code Sections 1$$O5 and 26131, Escrow Holder shall be the "withholding agent"
and withhold from proceeds due Seller any amounts required under the above code sections to be withheld
by Buyer and pay same to the California Franchise Tax Board or Internal Revenue Service in accordance
with applicable law.
3.14 Additional Documents. Seller and Buyer shall execute and deliver to Escrow any
other documents reasonably required by Escrow Holder including, without limitation, Seller' s affidavits
or statements regarding mechanics liens and /or tenants or parties in possession.
3.15 'Termination of Property Contracts. Seller shall terminate any service contracts or
similar agreement relating to the Property that the Buyer does not expressly elect in writing to assume
which termination shall be effective as of the Close of Escrow.
4. Real Estate Brokerage Commission. Buyer and Seller each represent and warrant
to each other that they have not employed, dealt with or incurred any obligation to any broker,
agent or finder in connection with the Property, and that they have not incurred any obligation to
pay any other real estate brokerage or other commission or fee in connection with the conveyance
of the Property to Buyer. Buyer and Seller agree to indemnify, defend and hold each other free
and harmless from and against all costs and liabilities, including without limitation reasonable
attorneys' fees and the costs and expenses of litigation, for causes of action or proceedings in any
way related to or resulting from a breach of the foregoing representation and warranty or arising
out of any action or proceedings which may be instituted by any broker, agent or finder, licensed
or otherwise, claiming through, under or by reason of the conduct of the indemnifying Party,
respectively, in connection with this transaction,
5. Inspections; AS -IS Conditiop o£Property
5.1 Waiver of Inspections. Buyer and Seller agree that Buyer unequivocally waives any
tight to conduct independent investigations concerning (i) Buyer's proposed use, sale, development or
suitability for development of the Property; (ii) the condition and all other attributes of the Property,
including, without limitation all improvements located thereon; (iii) applicable laws, statutes, rules,
regulations, ordinances, limitations, restrictions or requirements concerning the use, density, location or
suitability of the Property or any existing or proposed development or condition thereof, including but not
limited to zoning, subdivision and other regulations; (iv) the necessity or availability of any specific plan
or general amendments, rezoning, zone variances, conditional use permits, building permits, environmental
impact reports, subdivision maps, public reports issued by the California Bureau of Real Estate and all
other governmental permits, approvals or acts; (v) the necessity and existence of all dedications, fees,
charges, costs or assessments which may be imposed by any Governmental Authority in connection with
the proposed development of the Property; (vi) the value of the Property; (vii) the availability or adequacy
of access to the Property, or of water, sewage, gas, electrical or other utilities serving the Property and
(viii) the presence or adequacy of infrastructure or other improvements on, near or concerning the Property.
VA
5.2 No Representations or Warranties, Seller makes no representation or warranty,
express or implied, to the Buyer relating to the condition of the Property or suitability of the Property for
any intended use or development by the Buyer.
5.3 Acceptance of Property "AS -IS." Buyer shall accept all conditions of the Property,
without any liability of the Seller whatsoever, in the Property's AS -IS, WHERE -IS, SUBJECT TO ALL
FAUI,fS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER,
PERFORMANCE OR CONDITION, and with full knowledge of the physical condition of the Property,
the nature of the Seller's interest in and use of the Property, all laws applicable to the Property.and of any
and all conditions, restrictions, encumbrances and all matters of record relating to the Property. The
Property is being acquired by Buyer as a result of its own knowledge of the Property and not as a result of
any representation(s) made by the Seller or any employee, official, consultant or agent of the Seller relating
to the condition of the Property, unless such statement or representation is expressly and specifically set
forth in this Agreement. Seller hereby expressly and specifically disclaims any express or implied
warranties regarding the Property, unless expressly and specifically set forth in this Agreement.
6, Warranties.
6.1 Seller's Warranties. In consideration of Buyer entering into this Agreement and as
an inducement to Buyer to purchase the Property from Seller, Seller makes the following representations
and warranties which shall be tare and correct as of the Effective Date and the Close of Escrow and each
of which is material and being relied upon by Buyer, For all purposes of this Agreement, including Seller's
representations and warranties contained herein, the phrase "to the best of Seller's knowledge" shall mean
the current actual knowledge of Seller. If prior to the Close of Escrow, Buyer has actual Knowledge that
any representation or warranty of Seller is untrue, inaccurate or incomplete in any material respect (and
without waiving any of Buyer's rights or remedies hereunder at law or in equity with respect to any material
untruth, incompleteness or inaccuracy existing on the Effective Date, that was known of or should have
been known of by Seller), Buyer may give Seller written notice of same and Seller shalt have seven (7) days
from the date of receipt of Buyer's notice (and the Closing Date shall be extended to permit the running of
such seven (7) day period) ("Seller Cure Period") to correct any factor or circumstance that makes such
representation or warranty materially untrue or inaccurate to Buyer's reasonable satisfaction. If Seller fails
to make such correction within the Seller Cure Period, then Buyer by written notice to Seller within three
(3) days after the expiration of the Seller Cure Period (and the Closing Date shall be extended to permit the
running of such three (3) day period) shall be entitled (a) to terminate this Agreement, or (b) continue this
Agreement in full force and effect with no change in terms, but without waiving any legal, equitable or
other remedies it may have against Seller. The foregoing is not a waiver or release of any of Buyer's rights
or remedies for any material untruth, incompleteness or inaccuracy in a representation or warranty of Seller
of which Buyer obtains knowledge after the Close of Escrow.
6.1.1 Authorization. Seller has full power and authority
to enter into this Agreement and to perform all its obligations hereunder, and has
taken all action required by law, its governing instruments or otherwise to
authorize the execution, delivery and performance of this Agreement by Seller,
Each individual or entity who has executed this Agreement on behalf of Seller
has the right, power, legal capacity and authority to execute, deliver and perform
this Agreement on behalf of Seller,
In
6.1.2 Conflicting Agreements. Neither the execution or
delivery of this Agreement, nor the consummation of the transaction
contemplated herein, will conflict with, or result in a breach of, any contract,
license or undertaking to which Seller is a party or by which Seller or any of the
Property is bound, or constitute a default thereunder. In addition, with respect
to any agreements that affect the Properly, neither Seller nor any other party or
parties to such agreements are in default thereunder nor are there any facts that
currently exist which with the passage of time would result in any such default.
To the best of Seller's knowledge, the Property is not subject to any prescriptive
easements, claims of adverse possession, encroachments or similar rights or
claims. The Property is not subject to any leases, options or other similar rights
or claims in favor of any third parties. The Property is not subject to a
Williamson Act contract or any similar agricultural agreement.
6.1.3 Proceedings. To the best of Seller's knowledge,
no legal or administrative proceeding is pending or threatened against Seller or
the Property nor are there any other facts or circumstances which would
adversely affect (i) Seller's right to convey title to the Property to Buyer as
contemplated in this Agreement, or (ii) Buyer's ability to own, develop and/or
market the Property in the manner disclosed by Buyer to Seller. To the best of
Seller's knowledge, there are no condemnation or eminent domain proceedings
pending or threatened with respect to the Property.
6.1.4 Binding Agreement. This Agreement constitutes
a legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms, except to the extent that such enforcement may be
litnited by applicable bankruptcy, insolvency, moratorium and other principles
relating to or limiting the rights of contracting parties generally.
6.1.5 Violations of Law. On the Effective Date and
Close of Escrow neither this Agreement nor the Property shall be in violation of
any law, ordinance, rule regulation, or administrative or judicial order.
6.1.6 Hazardous Materials. Seller has not stored or
released, caused to be stored or released or approved the storage or release on
the Property, of any "hazardous materials" (as defined below). To the best of
Seller's knowledge, (a) no prior owner of the Property has stored or caused to
be stored any hazardous materials on the Property; (b) no hazardous materials
now exist in, on or under the Property in violation of any "environmental law"
(as defined below); (c) there are no underground tanks on the Property nor have
there ever been any underground storage tanks on the Property; (d) no use of or
operations on the Property have occurred which use or operation has violated
any applicable environmental law; and (e) the Property is not on any
"Superfund" list under any applicable environmental law. As used herein,
"environmcntal law" shall mean any and all present federal, state or local laws
(whether common law; statute, rule, regulation or otherwise), permits, orders and
any other requirements of Governmental Authorities relating to the environment
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to any "hazardous materials" (as defined below) (including without limitation
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the
applicable provisions of the California Health and Safety Code and California
Water Code). As used herein, "hazardous materials" shall mean any
(a) chemical, compound, material, mixture or substance that is now defined or
listed in, or otherwise classified pursuant to any environmental law as a
"hazardous substance," "hazardous material," "hazardous waste,"
"extremely hazardous waste," "infectious waste," "toxic waste," "toxic
pollutant" or any other formulation intended to define, list or classify substances
by reason of deleterious properties or effect and (b) petroleum, petroleum by-
products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas
usable for fuel (or mixtures of natural gas in such synthetic gas), ash, municipal
solid waste steam, drilling fluids, produced waters and other wastes associated
with the exploration, development and production of crude oil, natural gas or
geothermal resources.
6.1.7 No Assumed Obligations. There are no
obligations or responsibilities of Seller with respect to the Property or otherwise
of any kind that are assumed by Buyer,
6.1.8 Endangered Species. To the best of Seller's
knowledge, (a) there are no endangered or threatened species of animals, plants
or insects on the Property, and (b) there are no environmental or biological
characteristics of the Property or adjacent property, which under existing law
will adversely affect Buyer's ability to own, develop and/or market the Property
or the cost thereof,
6.1.9 t)wnersh of Property. Seller is the sole and only
party that owns or holds any interest in the Property.
6.1.10 Property Document. To the best of Seller's
knowledge, the Property Documents and all other documents and information
provided by Seller or its agents or consultants to Buyer are complete, true and
accurate and do not omit any material fact, and there are no other documents,
materials, studies, surveys or other information in the possession or control of
Seller that would have a material and adverse effect on Buyer's ability to own,
develop and/or market the Property.
6.1.11 Other Agreements. Except as set forth in the
Property Documents and this Agreement, Seller has not made any commitment
or representation to or entered into any agreement of any kind with any
government authority, or any adjoining or surrounding property owner, group or
other third party, which would in any way be binding on Buyer or all or any
portion of the Property or would interfere in any way with Buyer's ability to
own, develop, improve and/or market the Property, and will not make any such
representations or warranties or enter into any such agreements which would
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affect the Property or any portion thereof prior to the Close of Escrow, without
Buyer's written consent.
6.1.12 Access. There is full and unobstructed direct
access to the Property from public streets, highways or roads that are adjacent to
the Property.
6.1.13 Bank. No "Bankruptcy Event" (as
defined below) has occurred with respect to Seller nor any member or manager
of Seller. There is not pending or threatened any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution or re.
composition of Seller or any member or manager of Seller or seeking
appointment of a receiver, trustee, custodian or similar official for Seller or any
member or manager of Seller for all or any substantial part of its or their assets.
"Bankruptcy Event" means (a) the making by aperson of a general assignment
for the benefit of such person's creditors, (b) the admission in writing by a person
of its inability to pay its or their debts as they mature, (c) an attachment,
execution or other judicial seizure of any property interest which remains in
effect, or (d) the failure to have taken or submission to any action indicating a
general inability by a person to meet its financial obligations as they accrue.
6.1.14 Material Change. Seller shall promptly notify
Buyer if Seller obtains information that would make any of the representations
or warranties contained herein materially inaccurate or misleading.
6.2 Buyer's warranties. In consideration of Seller entering into this Agreement and as
an inducement to Seller to sell the Property to Buyer, Buyer makes the following representations and
warranties which shall be true and correct as of the Effective Date and the Close of Escrow and each of
which is material and being relied upon by Seller, For all purposes of this Agreement, including Buyer's
representations and warranties contained herein, the phrase "to the best of Buyer's knowledge" shall mean
the current actual knowledge of Buyer. If prior to the Close of Escrow Seller determines that any
representation or warranty of Buyer is untrue, inaccurate or incomplete in any material respect (and without
waiving any of Seller's rights or remedies hereunder at law or in equity with respect to any material untruth,
incompleteness or inaccuracy existing on the Effective Date, that was known of or should have been known
of by Buyer), Seller may give Buyer written notice of same and Buyer shall have seven (7) days from the
date of receipt of Seller's notice (and the Closing Date shall be extended to permit the running of such
seven (7) day period) ("Buyer Cure Period") to correct any fact or circumstance that makes such
representation or warranty materially untrue or inaccurate to Seller's reasonable satisfaction. If Buyer fails
to make such correction within the Buyer Cure Period, then Seller by written notice to Buyer within three
(3) days after the expiration of the Buyer Cure Period (and the Closing Date shall be extended to permit
the running of such three (3) day period) shall be entitled (a) to terminate this Agreement or (b) continue
this Agreement in full force and effect with no change in terms, but without waiving any legal, equitable
or other remedies it may have against Buyer, The foregoing is not a waiver or release of any of Seller's
rights or remedies for any material untruth, incompleteness or inaccuracy in a representation or warranty
of Buyer of which Seller obtains knowledge after the Close of Escrow.
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6.2.1 Authorization, Buyer is a limited liability
company duly formed in the State of California and validly existing under the
laws of the State of California and is qualified to transact business in the State
of California. Buyer has fall power and authority to enter into this Agreement
and to perform all of its obligations hereunder, and has taken all action required
by law, its governing instruments or otherwise to authorize the execution,
delivery and performance of this Agreement. Each individual who has executed
this Agreement on behalf of Buyer has the right, power, legal capacity and
authority to execute, deliver and perform this Agreement on behalf of Buyer.
6.2.2 Binding A eement. This Agreement constitutes
a legal, valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium and other principles
relating to or limiting the rights of contracting parties generally.
6.2.3 Co .Rlianee with Law. Buyer is required to carry
out the development of the Project in conformity with all applicable laws,
including all applicable building, planning and zoning laws, including any
historic property regulations and environmental laws.
6.2.4 Repurchase Right. Buyer hereby represents and
guarantees that, subject to Permitted Delay (as defined herein), Buyer shall open
for business to the public on the Property as a drive-thru restaurant or fuel station
with integrated electric vehicle charging station (the "Opening Covenant") on or
before the date that is thirty (30) months following Close of Escrow (the
"Opening Deadline"). If Buyer has not satisfied the Opening Covenant on or
before the Opening Deadline, Seller may, at its sole and exclusive remedy, elect
to repurchase the Property from Buyer (the "Repurchase Right") pursuant to the
terms and conditions below. Seller shall provide written notice to Buyer of its
exercise (the "Exercise Notice") within sixty (60) days following the Opening
Deadline ("the Exercise Window"). The Exercise Notice shall propose a date
for closing that is no less than forty-five (45) days, nor more than sixty (60) days,
following the date of the Exercise Notice, with such closing then occurring on a
date mutually convenient to both the Seller and Buyer (the "Repurchase Closing
Date"). If (a) Seller fails to deliver its Exercise Notice to Buyer within the
Exercise Window, or (b) Buyer satisfies the Opening Covenant after receipt of
the Exercise Notice but prior to the Repurchase Closing Date, 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 to Buyer by Seller for the Property shall be equal to eighty percent
(80%) of the Purchase Price paid by Buyer to Seller under this Agreement,
Seller's exercise of the Repurchase Right shall be Seller's sole and exclusive
remedy for Buyer's failure to satisfy the Opening Covenant prior to the Opening
Deadline. Notwithstanding anything to the contrary set forth herein, if Seller
-12-
elects to exercise its Repurchase Right, in no event may any consideration be
paid to Buyer be in a form other than cash. 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 open market; failure of transportation;
strikes (other than any strike resulting from acts of Buyer); lockouts; action of
labor unions; condemnation laws; requisition or order of government or civil or
military or naval authorities; or any other similar cause to those stated above, not
within a Buyer's reasonable control. Notwithstanding anything to the contrary
contained herein, in no event shall financial inability constitute Permitted Delay.
6.2.5 Approvals. 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 the Buyer's proposal for
the Property submitted in response to City's Request for Proposal No. 20-159 (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.
6.3 Natural Hazard Zone Disclosure. No later than seven (7) business days prior to the
Property Approval Date, the Seller will, at its sole cost and expense, provide Buyer with a Natural Hazard
Zone Disclosure required by applicable law.
6.4 Buyer and Seller Cooperation. Buyer shall submit plans for the Project to Seller,
and Seller, in its capacity as the City within which the Project is located, will make the determination as to
the required entitlements based upon Buyer's proposed plans. Buyer may then process and obtain the
Project Entitlements through Seller in its capacity as the City within which the Project Entitlements is
located. Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to
exercise of governmental discretion with regard to such items, nor a guarantee that such approvals or
permits will be granted at all or within any particular time or with or without any particular conditions.
7. Destruction/Condemnation of Property Other Notices. In the event that all or any
portion of the Property is damaged or destroyed by any casualty under the provisions of applicable
law after the Effective Date but prior to the date of Closing, Seller shall give Buyer immediate
written notice of the same.
-13-
8. Indemnification.
8.1 Obligations; Seller shall Indemnify Buyer and Buyer shall Indemnify Seller against
any wrongful intentional act or negligence of the Indemnitor, Buyer shall also Indemnify Seller against
any and all of the following: (a) any damage to the Property caused by the Investigations of the Property
by Buyer; and (b) any accident, injury or damage whatsoever caused to any person in or on the Property
by Buyer prior to the Closing. Notwithstanding anything to the contrary in this Agreement, no Indemnitor
shall be required to Indemnify any Indemnitee to the extent of the Indemnitee's wrongful intentional acts
or negligence.
8.2 Limitation on Liability of the Seller. Following the Close of Escrow, the Buyer is
and shall be responsible for operation of the Property and the Project, and the Seller shall not be liable for
any injury or damage to any property (of the Buyer or any other person) or to any person occurring on or
about the Property or the Project, except to the extent caused by the Seller's wrongful intentional act or
negligence.
8.3 Pict Liability. The indemnification obligations of an Indemmitor shall apply
regardless of whether liability without fault or strict liability is imposed or sought to be imposed on one or
more Indemnitees.
8.4 Independent of Insurance Obligations, •ions. Buyer's indemnification obligations under
this Agreement shall not be construed or interpreted as in any way restricting, Iimiting, or modifying
Buyer's insurance or other obligations under this Agreement and is independent of the Buyer's insurance
and other obligations under this Agreement. Buyer's compliance with its insurance obligations and other
obligations under this Agreement shall not in any way restrict, limit, or modify the Buyer's indemnification
obligations under this Agreement and are independent of the Buyer's indemnification and other obligations
under this Agreement,
8.5 Survival of Indemnification and Defense Obligations, The indemnity and defense
obligations under this Agreement shall survive the expiration or earlier termination of this Agreement, until
all claims against any of the Indemnitees involving any of the indemnified matters are fully, finally,
absolutely and completely barred by applicable statutes of limitations.
8.6 Independent Duty to Defend. The duty to defend under this Agreement is separate
and independent of the duty to Indemnify. The duty to defend includes claims for which an Indemnitee
may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a
claim, regardless of whether the issues of negligence, liability, fault, default or other obligation on the part
of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately,
regardless of whether the Indemnitee has paid any amounts or incurred any detriment arising out of or
relating (directly or indirectly) to any claims. It is the express intention of the Parties that an Indemnitee
be entitled to obtain summary adjudication or summary judgment regarding an Indemniton's duty to defend
the Indemnitee, at any stage of any claim or suit, within the scope of the Indemnitor's indemnity obligations
under this Agreement.
8.7 Indemnification Procedures. Wherever this Agreement requires any Indemnitor to
Indemnify any Indemnitee:
HE
8.7.1 Prompt Notice. The Indemnitee shall promptly
notify the Indemnitor of any claim, To the extent, and only to the extent, that
the Indemnitee fails to give prompt Notice of a Claim and such failure materially
prejudices the Indemnitor in providing indemnity for such claim, the Indemnitor
shall be relieved of its indemnity obligations for such claim.
8.7.2 Selection of Counsel. The Indenmitor shall select
counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor's
insurance carrier that is providing coverage for a claim shall be deemed
reasonably satisfactory, Even though the Indemnitor shall defend the action,
Indemnitee may, at its option and its own expense, engage separate counsel to
advise it regarding the claim and its defense. The Indemnitee's separate counsel
may attend all proceedings and meetings. The Indemnitor's counsel shall
actively consult with the Indemnitor's separate counsel, The Indemnitor and its
counsel shall, however, fully control the defense, except to the extent that the
Indemnitee waives its rights to indemnity and defense for such claim.
9. Miscellaneous.
9.1 Notices, Any notice, request, demand, instruction or other document required or
permitted to be given or served hereunder or under any document or instrument executed pursuant hereto
will be in writing and will be delivered personally or sent by United States registered or certified mail,
return receipt requested, postage prepaid or by overnight express courier, postage prepaid and addressed to
the parties at their perspective addresses set forth below, and the same will be effective upon the date of
confirmed dispatch, if by electronic communication receipt if delivered personally or via overnight express
courier or on the third Business Day after deposit if mailed. A party may change its address for receipt of
notices by service of a notice to such change in accordance herewith. Buyer and Seller hereby agree that
notices may be given hereunder by the parries' respective counsel and that, if any communication is to be
given hereunder by Buyer's or Seller's counsel, such counsel may communicate directly with all principals
as required to comply with the provisions of this Section.
If to Buyer: Santana Green Development LLC
714 S. Plymouth Blvd
Los Angeles, CA 90005
If to Seller: City of Santa Ana
20 Civic Center Plaza M-30
Santa Ana, CA 92702
Attn: Clerk of the Council
with a copy to: City of Santa Ana
20 Civic Center Plaza M-21
Santa Ana, CA 92702
Attn: Executive Director of Public Works
-15-
9.2 No Third Party Beneficiaries, Notwithstanding any provision contained in this
Agreement to the contrary, this Agreement is intended as and shall be deemed to be an agreement for the
sale of assets and none of the provisions hereof shall be deemed to create any obligation or liability of any
person that is not a Party, whether under a third -party beneficiary theory, laws relating to transferee
liabilities or otherwise, Buyer shall not assume and shall not be obligated to discharge or be liable for any
debts, liabilities or obligations of Seller including, but not limited to, any (a) liabilities or obligations of
Seller to its creditors, shareholders, members, partners, .managers, or owners, (b) liabilities or obligations
of Seller with respect to any acts, events or transactions occurring prior to, on or after the Close of Escrow,
(c) liabilities or obligations of Seller for any federal, state, county or local taxes, or (d) any contingent
liabilities or obligations of Seller, whether known or unknown by Seller or Buyer. Buyer shall have no
duty whatsoever to take any action or receive or make any payment or credit arising from or related to any
services provided or costs incurred in connection with the Property prior to the Close of Escrow, including,
but not limited to, any matters relating to cost reports, collections, audits, hearings, or legal action arising
therefrom.
93 Further Instruments. Each Party will, whenever and as often as it shall be reasonably
requested to do so by the other, cause to be executed, acknowledged or delivered any and all such further
instruments and documents as may be necessary or proper, in the reasonable opinion of the requesting
Party, in order to carry out the intent and purpose of this Agreement.
9.4 Calculation of Time Periods Business Day Time of Essence. Unless otherwise
specified, in computing any period of time described herein, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day of the period so computed is
to be included, unless such last day is not a Business Day, in which event the period shall run until the end
of the next day which is a Business Day. The last day of any period of time described herein shall be
deemed to end at 5:00 p.m. local time in the state in which the Real Property is located. As used herein,
the terns `Business Day" means any day excluding Saturdays, Sundays and State and National holidays
and any day the City is closed. Subject to the foregoing provisions, time is of the essence of this Agreement.
9.5 Entire Agreement, Amendments. This Agreement (including the documents
delivered pursuant to this Agreement), constitutes the entire agreement of the Parties pertaining to the
subject matter of this Agreement and supersedes all prior agreements or letters of intent of the Parties, This
Agreement may not be amended, modified, or supplemented except by a written instrument signed by an
authorized representative of each of the Parties.
9.6 Survival. All covenants, agreements, representations, warranties and indemnities
contained in this Agreement shall survive the execution and delivery of this Agreement and the Close of
Escrow and the delivery and recordation of all documents or instruments in connection therewith.
9.7 Md—i-nt Effect; Enforcement. The covenants, agreements, representations, and
warranties contained herein will be binding upon, be enforceable by and inure to the benefit of the
representatives, successors, and permitted assigns of the respective parties hereto.
9.8 Applicable Law. This Agreement will be construed and interpreted under, and
govemed and enforced according to, the laws of the State of California applicable to contracts made and
to be performed entirely therein.
16-
9.9 Venue. In the event of any legal action to enforce or interpret this Agreement, the
sole and exclusive venue shall be the Superior Court of Orange County and the Parties hereby agree to and
do hereby submit to the jurisdiction of such court.
9.10 Attorneys' Fees. If any Party to this Agreement shall bring any action or proceeding
for any relief against the other, declaratory or otherwise, in any way arising out of or in connection this
Agreement and/or the Property, the losing Party shall pay to the prevailing Party a reasonable sum for
attorneys' fees and costs (including without limitation expert witness fees) incurred in bringing or
defending such action or proceeding or enforcing any judgment granted therein, all of which shall be
deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether
or not such action or proceeding is prosecuted to final judgment. Any judgment or order entered in such
action or proceeding shall contain a specific provision providing for the recovery of attorneys' fees and
costs, separate from the judgment, incurred in enforcing such judgment. The prevailing Party shall be
determined by the trier of fact based upon an assessment of which Party's major arguments or positions
taken in the proceedings could fairly be said to have prevailed over the other Party's major arguments or
positions on major disputed issues. For the purposes of this Section, attorneys' fees shall include, without
limitation, fees incurredin the following: (1) post judgment motions; (2) contempt proceedings;
(3) garnishment, levy and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation.
9.11 Construction. The provisions of this Agreement shall not be construed in favor of
or against either Party, but shall be construed as if both Parties prepared this Agreement.
9.12 Interpretation. The paragraph and section headings in this Agreement are solely for
convenience and will not be deemed to limit or otherwise affect the meaning or construction of any part of
this Agreement. Any pronoun used in this Agreement will be deemed to cover all genders. The terms
"include," "including," and similar terms will be construed as if followed by the phrase "without being
limited to." The term "or" has, except where otherwise indicated, the inclusive meaning represented by
the phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and similar terms in this
Agreement refer to this Agreement as a whole and not to any particular provision or section of this
Agreement, Words in this Agreement importing the singular number will mean and include the plural
number, and vice versa.
9.13 No Waiver. No waiver by a Party of a breach of any of the terms, covenants, or
conditions of this Agreement by the other shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term, covenant or condition contained herein. No waiver of any
default by a Party shall be implied from any omission by the other Party to take any action on account of
such default if such default persists or is repeated and no express waiver shall affect a default other than as
specified in such waiver. The consent or approval by either Party to or of any act by the other requiring
the first Party's consent or approval shall not be deemed to waive or render unnecessary the consenting
Party's consent or approval to or of any subsequent similar acts by the other Party.
9.14 Severability of Provisions. Wherever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of
this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective
only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement.
-17-
9.15 Incornoration of Exhibits. Except as intentionally omitted, all exhibits attached
hereto and referred to herein are incorporated into the Agreement as though fully set forth herein.
9.16 Counterparts. This Agreement may be executed in any number of counterparts and
by different Parties to this Agreement in separate counterparts, each of which when so executed and
delivered will be deemed original, but all such counterparts, together, will constitute but one and the same
instrument. Signature pages may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same document. This Agreement will
become effective upon the execution and delivery of a counterpart hereof by each Party to this Agreement.
A signature of a Party to this Agreement sent by facsimile, electronic mail (including a scanned portable
document format copy sent by electronic mail), or other electronic transmission will have the same force
and effect as delivery of an original signature of such Party.
9.17 Amendments. This Agreement may not be modified, changed, supplemented,
superseded, canceled or terminated, except by written instrument signed by the Parties hereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of
the Effective Date.
ATTEST
� P
Daisy Gomez
City Clerk
APPROVED AS TO FORM
Sonia R. Carvalho
City Attorney
By:
�� %V. ��
John M.Funk
Sr. Assistant City Attorney
FOR APPROVAL
Nabil Saba
Executive Director
Public Works Agency
CITY OF SANTA ANA
shne Ridge
City Manager
SANTANA GREEN DEVELOPMENT LLC,
a California limited
%liability company
Name: ; r
Title: M•cc✓I2.�J�
5"
Exhibits:
Exhibit "A" — Legal Description of the Property
Exhibit "B" — Porn of Grant Deed
Exhibit "C" — intended Improvements
-19-
EXHIBIT "A"
LEGAL DESCRIPTION
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA
LOTS 183, 184,186 AND 185 OF TRACT MAP NO, 1192 AS PER THE MAP FILED IN
BOOK 38, 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 a r y 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
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EXHIBIT "B"
PLAT TO ACCOMPANY LEGAL DESCRIPTION
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PARCEL LIMITS --—
PUBLIC STREET R/W PER INST. NO. Z00 QQV L141 L31P,
CORVE TABLE
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PAGE 1 OF 1
GRANT DEE17 {Tb BE EXECUTED)
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INTENDEDIMPROVEMENTS
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Proposed Development — Drive-Thru Site Plan
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Proposed Development— Fuel & Electric Vehicle Charging Station Site Plan
Electric Vehicle Charging Stations:
Given the rapidly expanding Electric Vehicle market, the following Charging Stations are
designed for Implementation within Retail Developments with rapid charging needs.
ChargePoint and EVGo are market leaders in the Electric Vehicle Charging Station market.
ChargePoint Express 250 Station
EVGo Station — Fuel Station Charging Module