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HomeMy WebLinkAboutM & A GABAEE, LP 1 - 2003THE CITY OF SANTA ANA, CALIFORNIA A-2003-035 AGREEMENT FOR ACQUISITION OF REAL PROPERTY THIS AGREEMENT, entered into this 3l~day of March, 2003, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "Seller"), and M & A Gabaee, LP, a California Limited Partnership (hereinafter called "Buyer"), regardless of number or gender; WHEREAS, the Seller is the owner of certain real property generally located at Sycamore Street between First and Second Street, in the City of Santa Ana more particularly described below (hereinafter "said real property"); and WHEREAS, the Buyer has approached the Seller and seeks to purchase said real property to be included in the development of a Sav-On Drugstore; and WHEREAS, the Seller has been authorized, by action of the City Council of the City of Santa Ana following a duly noticed public heating, pursuant to section 2-709 of the Santa Ana Municipal Code, to directly negotiate with Buyer the terms and conditions of the purchase of said real property; and WHEREFORE, it is agreed by and between the parties, that the foregoing Recitals are a substantive part of this Agreement and that the following terms and conditions are approved and together with the Recitals and all exhibits and attachments hereto, shall constitute the entire Agreement between the Seller and Buyer: WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all that certain real property (hereinabove and hereinafter referred to as "said real property") described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF [Commonly known as a portion of Sycamore Street between First and Second Street in the City of Santa Ana, CA (referred to herein as "said real property")] Said sale and purchase of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey said real property to Buyer, by Grant Deed in substantially the form of Exhibit "B" hereto, which by this reference is made a part of this Agreement as though fully set forth, within thirty (30) days from and after the date on which all contingencies set forth in this Agreement are satisfied. Seller, as part of this conveyance, shall also undertake the following: 2. Title to be Conveyed. Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to Buyer, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title except those exceptions shown in Paragraph 11 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to Buyer shall be free and clear as above provided. Seller further agrees that acceptance by Buyer of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease, cloud or defect in title, shall not constitute a waiver by Buyer of its right to the full and clear title hereinabove agreed to be conveyed by Seller to Buyer, nor of any right which might accrue to Buyer because of the failure of Seller to convey title as hereinabove provided. 3. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to Buyer as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to Buyer is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to Buyer is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to Buyer. 4. Compensation. Buyer agrees to pay to Seller, and Seller agrees to accept from Buyer, as and for the full purchase price for said real property, the total sum of One Dollar And No/100 ($1.00) (the "full purchase price"). 5. Possession. Seller agrees to deliver to Buyer, on the date the Deed conveying said real property to Buyer is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 6. Waivers. The waiver by Buyer of any breach of any covenant or agreement herein contained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 7. Heirs, Assigns, Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 8. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 9. Permission to Enter on Premises. Seller hereby grants Buyer, and its authorized agents, permission to enter upon said real property at all reasonable times prior to recordation of the grant deed for the purpose of making necessary inspections. 10. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-22, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Buyer is: M & A Gabaee 9171 Wilshire Blvd. Penthouse Beverly Hills, CA 90210 11. Exceptions. Buyer agrees to accept title to said real property subject to the following exceptions noted in that certain Stewart Title of California Preliminary Title Report for said real property: None. 12. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by Buyer shall lay at rest, each, every and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by Buyer. 13. Hazardous Waste Disclosure. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of said real property generated, released, discharged or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about said real property, or transported any Hazardous Materials to or from said real property. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from said real property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of 3 the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601). 14. Compliance With Environmental Laws. Except as may be noted in the Environmental Disclosure Documents, to the best of Seller's knowledge said real property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resoume Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the Buyer within which the said real property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. Seller has provided Buyer with copies of any and all audits or reports performed on its behalf or which are in its possession relating to whether hazardous materials are present on or under said real property. 15. No Further Warranties As To Said Real Property. Except as otherwise provided herein, the physical condition and title said real is and shall be delivered from Seller to Buyer in an "as is" condition, with no warranty expressed or implied by Seller, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Property for the development purposes intended hereunder. 16. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and Buyer. 17. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 4 18. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 20. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 21. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 22. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 23. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 24. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Buyer fully, including reasonable costs and attorney's fees, for any injuries or damages to Buyer in the evcmt that such authority or power is not, in fact, held by the signatory or is withdrawn. 25. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 26. Release. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Notwithstanding the provisions of Civil Code section 1542, Seller and Buyer hereby irrevocably and unconditionally releases and forever discharges the other and each and all of its respective officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with the either from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which either party at any time heretofore had or claimed to have or which either party at any time hereafter may have or claim to have, including, without limitation, any and all claims related or in any manner incidental to this transaction; provided, however, that the representations, obligations, warranties and affirmative duties of this Agreement are not waived or released and shall survive the sale. 27. Real Estate Commission. Neither Buyer nor Seller shall be liable for any real estate commission, brokerage fees or finder's fees which may arise from this Agreement. The Buyer and Seller each represent and warrant that neither has engaged any broker, agent, or finder in connection with this transaction. The Buyer agrees to indemnify, defend and hold harmless the Seller from any claim that a real estate commission, brokerage fees or finder's fees is owed or payable arising from this Agreement. 6 The parties have executed this Agreement as of the date written above. ATTEST: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attomey SELLE/~City of Santa Ana David N. Rdam City Manager Lisa E. Storck Assistant City Attorney When recorded, please mail this instrument and tax statements to: M & A Gabaes 9171 Wilshire Blvd. Penthouse Beverly Hills, CA 90210 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103 ~,GENCY(IES) =UBLIC WORKS DIRECTOR I.L. L.M. EXHIBIT "B" COPY SPACE ABOVE THIS LINE FOR RECORDER'S USE ~,.p. RJ~V MAp PROJECT ~UMBER NUMBER NUMBER N-316 Aband 02-03 N/E corner of First Street and Sycamore Street (Address/Approximate Location) 8065 DEED NUMBER GRANT DEED FOR VALUABLE CONSIDERATION, receipt for which is hereby acknowledged, THE CITY OF SANTA SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, Does hereby grant to M & A Gabaee, LP, fee simple title to 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 THEREOF; Dated ~2 r.~_; ! ~_~, STATE OF CALIFORNIA COUNTY Of On ~ ~.t. before me, personally appeared ~..~,.~.~ ~ ~ ev;d~.,~} to be the person(,~'whose name(~ is/,~e, subscribed to the within instrument and acknowledged to me that he/ehe?-hey execut- ed the same in his,,~',..c~thc!: =uthodzed capacity(ies');-.and that by hic.~h--'r!thcksignature,(s~' on the instrument the person~')'or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature / _~J~/_.~ CITY OF SANTA ANA A charter city and municipal corporation duly organized under the Constitution and laws of the State of California David N. Rebm City Manager Comm. # 1267295 NOTARY PUBLIC-CALIFORNIA · ~ ~'~//M¥ Comm. BxRires June 12, 2004 (This area for official seal) MAJL TAX STATEMENTS AS DIRECTED ABOVE EXHIBIT A LEGAL DESCRIPTION ' IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA Being those portions of Lots 2, and 3 in Block 3 of the map of the Town of Santa Aha recorded in Book 2, Page 51, Miscellaneous Records of Los Angeles County described as follows: Beginning at a point on the north right-of-way line of First Street per deed recorded November 8, 1972 in Book 10408, Pages 829 and 830, Official Records of said Orange County, said point being the easterly terminus of a 25.00 feet radius tangent curve described in said deed, concave to the northeast and tangent at its northerly terminus with the west line of said Lot 3, said north line also being 70.00 feet north of the centerline of First Street; Thence westerly 6.00 feet along the westerly prolongation of said north line to the beginning of a second 25.00 feet radius tangent curve, also concave to the northeast; Thence westerly, and northwesterly along said curve, to said west line of said lots; thence northerly, non-tangent to said second curve, along said west line to said northerly terminus of the first-mentioned curve; thence southerly, southeasterly, and easterly along said curve to the Point of Beginning. As shown on Exhibit B attached hereto for reference only. Prepared under the supervision of: DATE// i 5.00' i x T~.--DETAIL "o* To SCALE, R 25,00' B 6.00' P.O. SECONO STREET 30') SEE DETAilL ~ '°t9 BLOCK 3 T OIw N SANT~, ANA I M.R,L 2-51 ABOVE I (125') ~ STREET FIRST ,'~ AREA OF CONVEYANCE = RECORD PER TOWN OF SANTA ANA MAP M.R.L.A.2-51 EXHIBIT B FOR REFERENCE ONLY )