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HomeMy WebLinkAbout25F - BRISTOL ST CORRIDOR REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: OCTOBER 6, 2008 TITLE: PURCHASE AGREEMENT FOR BRISTOL STREET CORRIDOR {PROJECT 06-1500-C} APPROVED D As Recommended D As Amended D Ordinance on 151 Reading D Ordinance on 2nd Reading D Implementing Resolution D Set Public Hearing For ~c2 CI MANAGER CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached purchase agreement for the property located at 1020 S. Bristol Street, subj ect to non-substantive changes approved by the City Manager and City Attorney, with Bank of America, National Association, in its capacity as Trustee of the 7-Eleven Employees' Trust for $155,000.00. DISCUSSION On March 6, 2006 the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority to fund Bristol Street improvements from McFadden Avenue and pine Street. Improvements include widening of the street from four lanes to six, construction of landscaping in the parkways and the median islands, traffic improvements, drainage structures, sound walls, and other amenities as outlined in the Specific Plan. To accommodate the widening, the acquisition of a portion of the 7-E1even property located at the north-west corner of Bristol and McFadden is required (Exhibit 1). The proposed partial acquisition will not impact the building. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89-01 approved by City Council in 1990. 25F-1 Purchase Agreement for Bristol Street Corridor October 6, 2008 Page 2 FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (account no. 59-553-6611) . APPROVED AS TO FUNDS AND ACCOUNTS: ~~~ J es G. Ross xecutive Director Public Works Agency ~\\.~;~\. ~ 1 .,,\\ ~ ~ f(~ Francisco GutTerrez Executive Director Finance & Mgmt. Services AgenCy~~ 25F-2 R1CHLA SANTA ANA t PW A t , , I'lIl.IC mIlS AGEJl:Y MATCHLlNE SEE BOTTOM RIGHT LEGEND _ SUBJECT PROPERTIES ACOUIRED PROPERTIES ~ r-\ ~ r .(f)' ~ Rt: )J J ~ - - WALNUT ST. ~ I ~ y \ '/ /': ~NDt: / I -.:::::::-t m - =-- AVENUE -- \ I j ~ 'l3JV, - TOLLIVER - - ?Y'/ - '/' A,/ -1/ i1' l&-II A t.lI"\ II ~ - /~ - ::4l - - - /; G- - MYRTL E -----, - - - - ~ ~ J CUB80N ST. I - -^J'CN' ~I IT - ~II - '/~ - ~ -v ~ -I;( MCFADDEN AVENUE WLUTS II I ') I1T RA YMA PINE ST. CHESTNUT STREET CAMLE MA TCHLlNE SEE ABOVE LEFT EXHIBIT 1 CITY COUNCIL AGENDA DATE OCTOBER 6, 2008 TITLE: PURCHASE AGREEMENT FOR BRISTOL STREET CORRIDOR (PROJECT 06-1500-C) 25F-3 ~ NoTB SANTA ANA PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND HILA TERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT (hereinafter "PSA"), entered into on ~ . 2008. 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 "City" or "Buyer"), and BANK OF AMERICA, National Association. in its capacity as Trustee of the 7-Eleven Employee's Trust, formerly known as The Southland Employees Trust, and not in it's individual capacity (hereinafter the "Trust" or "Seller"), regardless of number or gender; THEREFORE, 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 City, and City agrees to purchase from Seller, all that certain real property located in the State of California, County of Orange, City of Santa Ana (hereinafter "Said Real Property"), described as follows: SEE EXHIBIT "A" and "B" ATTACHED HERETO AND BY TIllS REFERENCE MADE A PART HEREOF (Commonly known as [a portion of] 1020 South Bristol Street, Santa Ana, CA) Said purchase and sale 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: ]. Conveyance bv Seller. Seller agrees to convey Said Real Property to City, by Grant Deed, at the office of First American Title Insurance Company, located at 550 South Hope Street, Los Angeles, California 90071 (attn: Bobby Purdy (213 )271-1700 ext. 1742, facsimile number (213 )402-28] 1), within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, Said Real Property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens. clouds or defects in title, except those exceptions shown in Paragraph ]4 bc]ow. Seller hereby warrants that the title to Said Real Property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to Said Real Property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non-monetary, general or specific, and including any and all ]easehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. (b) Seller agrees to convey to City a temporary landscape easement as described and depicted in greater detail in Exhibit "C" attached hcrcto and by this refercnce made a part hereof. 3. Title Insurance. Seller agrees to deliver to City. concurrently with the conveyance of Said Real Property to City, within the time and at the place hereinabove specified for said conveyance of Said Real Property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of ONE HUNDRED FIFTY FIVE THOUSAND AND NOnOO Dollars ($155,000.00) insuring City's title to Said Real Property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, Page 1 of 12 Seller's Initials ""j2..~ J?1 25F-4 encumbrances (whether monetary or non-monetary, general or specific, and Including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this PSA. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, located at 550 South Hope Street, Los Angeles, California 90071, (hereinafter "Escrow Agent") within five (5) days from and after the date on which the City has approved this PSA. This PSA constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this PSA shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow is to close within 120 days after Owner's execution of this PSA, but in any event, not later than , 2008. The Effective Date of this PSA shall be established by Escrow Agent and shall be the date upon which the fully executed PSA is received by Escrow Agent. The Escrow Agent hereby is empowered to act under this PSA, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "D" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this PSA, shall carry out its duties as Escrow Agent hereunder. City agrees to bear, and Escrow Agent is hereby authorized to charge to the City, the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of Said Real Property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "D" of this PSA. 5. Property Taxes. Such real property taxes, if any, on Said Real Property for the fiscal year within which Said Real Property is conveyed to City 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 City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying Said Real Property to City 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 City. 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for Said Real Property, fixtures & equipment, improvements pertaining to the realty, severance damages, bonus value (if applicable), for the easements herein described, and for any and all other damages which Seller might now or in the future be entitled to, the total cash sum of ONE HUNDRED FIFTY-FIVE THOUSAND AND NO/IOO DOLLARS ($155,000.00); City agrees to deposit said purchase price in escrow with the Escrow Agent within Sixty (60) days from and after the Page 2 of 12 Seller's Initials_EC",,- 25F-5 date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay said purchase pnce to Seller only after or concurrent with the satisfaction of the following conditions precedent: (a) Conveyance of Said Real Property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying Said Real Property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Grant Deed conveying Said Real Property to City. 7. Possession. Seller agrees to deliver to City, on the date the Grant Deed conveying Said Real Property to City is recorded, quiet and peaceful possession of Said Real Property which shall be made free by Seller of all property. 8. Waivers. The waiver by Cily 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. 9. Heirs. Assi2ns, Successors-in-Interest. This Agreement, and all the terms, covenants and conditions herein, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 10. 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. II. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon Said Real Property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 12. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for Said Real Property and includes payment for fixtures & equipment, improvements pertaining to the realty, severance damages, bonus value (if applicable), for the easements herein described, and for any and all other damages which Seller might now or in the future be entitled to. 13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the city of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: Richard C. Murray Senior Vice President U.S. Trust, Bank of America Private Wealth Management 515 South Flower Street Suite 2700 Los Angeles, CA 90071 Phone: (213) 861-5065 Fax: (800) 976-1298 Email: richard.murray@ustrust.com 14. Exceptions. City agrees to accept title to Said Real Property subject to the following: NONE Page 3 of 12 Seller's lnitials j2.c. 'J11 25F-6 15. Al!reement. Performance of this Agreement by City 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 City. 16. Hazardous Waste. a. Two monitoring wells, MW -5 and MW -6, are located in the portion of the property that will be acquired by the City of Santa Ana. No soil samples were collected during well installation. Based on soil vapor screening conducted with an Organic Yapor Analyzer (OY A) at the time the wells were installed, there appears to be impacted soil at a depth of approximately 10 feet below ground surface in the vicinity of these wells. Benzene concentrations above the California Maximum Contaminant Levels (MCLs) are present in groundwater in well MW-5. The impacted groundwater plume does not appear to extend beyond the intersection of Bristol and McFadden, and appears to decrease to less than the MCLs by approximately the middle of the intersection. This estimate is based on the absence of benzene concentrations in groundwater at the most down gradient well, MW-9. Seller will provide Buyer, at Buyer's request, maps illustrating benzene concentrations in groundwater, groundwater gradient maps, and summary tables of the groundwater analytical results to date. Since samples were not collected during well installation, there is no definitive (i.e. laboratory analyzed sample) soil concentration data for these two wells. b. 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, the 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 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. S 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.c. S6901 ~ ~. (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 ~~. (42 U.S.C. S9601). 17. Compliance With Environmental Laws. To the best of Seller's knowledge the 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, Resource Conservation Recovery and Page 4 of 12 Seller's Initials T2- <:.111 25F-7 Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject 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. 18. Continl!encv. It is understood and agreed between the parties hereto that the enforceability of this PSA, and the escrow created hereby, is contingent upon the express acceptance and approval of this PSA by City. The execution of this PSA by City, and the delivery of same to Escrow Agent, shall constitute said acceptance and approval. 19. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 20. Partial Invaliditv. 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. 21. 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. 22. Governinl! Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 23. No Reliance Bv 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. 24. No Third Party Beneficiarv. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 25. Dutv 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. 26. Applicabilitv of Al!reement To Assil!nees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 27. Authoritv to Execute Al!reement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 28. Miscellaneous. Page 5 of 12 Seller's Initials[Z..'--'11 25F-8 i"": \l-7 c. "l- /,!/' 7" D. / / / / / / / / / / / / / / / / / / / / / / / / / A. City acknowledges that Said Real Property shall be a legal nonconfonning use upon the consummation of this real property transaction. In the event that the subject improvements are partially or fully involuntary destroyed, the existing property shall be subject to Santa Ana Municipal Code Section 4 I -682 or similar code then in effect, if any. Section 4 I -682 currently states as follows: B. "A nonconforming building or a building occupied by a nonconforming use which is damaged or partially destroyed by fire, flood. wind, earthquake. explosion or similar occurrence, may be restored and the nonconforming use continued, provided that the cost of repair or restoration does not exceed the building's fair market value prior to the date of the damage. In the repair or restoration of such building. there shall be no enlargement of such building nor any increase in the area of a nonconforming use within such building. .. ~ E(( ~ agrees to bear the additional cost of relocating signage and light standards and will work directly with representatives of7-Eleven, Inc. to detennine mutually acceptable locations for such signage and light standards. Ou.ye~ ~ agrees to restore the affected onsite areas and existing offsite work to at least the extent they existed prior to the partial acquisition with new replacements and with reasonably replacement landscaping. Page 6 of 12 Seller's Initials R c: '"'h'\. 25F-9 29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated herein as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date first written above. SELLER: BANK OF AMERICA, National Association, in its capacity as Trustee of the 7-Eleven Employee's Trust BY;~L.~ Richard C. Murray tI Senior Vice President Date: ,lqu6a5'1 7 ,2008 CITY/BUYER: CITY OF SANTA ANA By: David N. Ream City Manager Date: ,2008 ATTEST: By: Patricia E. Healy Clerk of the Council ,2008 Date: APPROVED AS TO FORM: Joseph W. Fletcher City Attorney Date: -:) \..\"J~ .1 ~ ,2008 Page 7 of 12 Seller's Initials 7Zc"Y'V\ 25F-10 EXHIBIT "A" LEGAL DESCRIPTION (APN 109-064-33) THOSE PORTIONS OF LOTS 20, 21, AND 22 OF TRACT 2325 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 68, PAGES 40 THROUGH 43 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF THE SOUTH 30.00 FEET OF SAID LOT 22 WITH A LINE 50.00 WEST OF TIlE CENTERLINE OF BRISTOL STREET AS SAID CENTERLINE IS SHOWN ON SAID MAP, SAID INTERSECTION BEING THE NORTHWEST CORNER OF PARCEL I AS DESCRIBED IN A DEED RECORDED IN BOOK 11585, PAGE 1328 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 890 21' 34" WEST 10.00 FEET ALONG SAID NORTH LINE TO A POINT ON A LINE 60.00 FEET WEST OF SAID CENTERLINE; TIlENCE SOUTH 00 38' 26" WEST 114.30 FEET, PARALLEL WITH SAID CENTERLINE; THENCE SOUTH 480 08' IS" WEST 34.05 FEET TO THE SOUTH LINE OF SAID LOT 20; THENCE SOUTH 890 06' 54" EAST 10.00 FEET ALONG SAID SOUTH LINE TO THE BEGINNING OF A CURVE, CONCA VB NORTHWESTERL Y, HAVING A RADIUS OF 25.00 FEET, SAID BEGINNING OF CURVE BEING A POINT OF CUSP ON THE WESTERLY LINE OF SAID PARCEL I; THENCE ALONG SAID CURVE AND SAID WESTERLY LINE THROUGH A CENTRAL ANGLE OF 900 14' 40", AN ARC LENGTH OF 39.38 FEET; THENCE CONTINUING ALONG SAID WESTERLY LINE NORTH 00 38' 26" EAST 112.35 FEET, PARALLEL WITII SAID CENTERLINE, TO TIlE POINT OF BEGINNING. THE ABOVE DESCRIBED PORTION OF LAND CONTAINS 1530 SQUARE FEET, MORE OR LESS. ALL AS SHOWN ON EXHIBIT "B", ATTACHED HERETO AND MADE A PART HEREOF. THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME OR UNDER MY DIRECTION. 9 /z4-~7 / I Date Page 8 of 12 Seller's Initials "'"/2-c?11 25F-11 . . . .. : :.';. '. .' <.::......~.... ~ :./:..~ . .. . '. . . ...... ~ - ~r NB9"21'34 "W- o 7 ;:".'.:::::: _-L-_______ >- W -1 -1 <r ...:..> i\~:'.j ..... .... .'. . ....... ..... '. :...... - ,..., U'l 60' I----- 50 ' P.D.B. - v U'l AREA = 1530 SF MCFADDEN AVE. ( ) RECORD PER TRACT 2325 MM 68/40-43 ,AN1 A ANA , PW A · , , lW.X lOllS dtCI ,,~ \,~\ . ~ \)~ ~~">~. A = 90.14'40" ~ R = 25.00' J L L = 39.38: T = 25.11 10.00' N v L N89.06'54"W EXHIBIT B AP# 109-064-33 1020 SOUTH BRISTOL STREET SANTA ANA. CA 92703 Page 9 of 12 ~ \D N - CI;) ,..., . o z f- (f) -.J o f- (f) I--l 0::: OJ ~ (SCALE: 1 "=40' l Seller's Initials 72c..~n_______ 25F-12 EXHIBIT "C" TEMPORARY LANDSCAPE EASEMENT (Bristol Street Widenin2 from Pine Street to McFadden Avenue) For valuable consideration, the undersigned owner hereby grants permission to the City of Santa Ana, its officers, employees, agents, invitees, and employed contractors, hereinafter collectively referred to as City, to enter upon, to pass and repass over and along that portion of land shown on Attachment 1 attached hereto and by reference made a part hereof, for the purpose of removing improvements and replacing those improvements with landscaping in connection with City's widening of Bristol Street; to enter upon, to pass and repass over and along said land and to deposit tools, implements, vehicles, construction equipment and other materials thereon by said City and by persons under contract with it and their employees, whenever and wherever necessary for the purposes herein set forth. This permission is granted subject to the following conditions being fulfilled by City: (A) Upon completion of street widening work, the Easement Area shall be improved with landscaping in compliance with City ordinances as applicable to this site. (B) City shall indemnify the undersigned against and hold the undersigned harmless from any loss of or damage to any property, or injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City or by any act or omission for which the City is liable in the exercise of the rights herein granted. It is understood that the period of use of said easement shall exist for a period of no more than 6 months and shall commence with the first entry on owner's property by City's contractor. This easement shall become null and void and shall terminate upon completion of said construction and in any event shall cease and terminate not later than December 31, 2011. Dated: JCJUbld'i 7/ Z "0 Y SELLER: Bank of America, National Association, Trustee of the 7-Eleven, Inc. Employee's Trust By~~.~ Date: Au6HrT 7 ,2008 Richard C. Murray fI Senior Vice President APPROVED AS TO FORM: Joseph W. Fletcher City Atto ey 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 BY: / BY: Page 10 of ] 2 Seller's Initials ?L m 25F-13 Attachment 1 to Exhibit "C" Temporary Landscape Easement Page II of 12 Seller's Initials 72c.:?'i1 25F-14 EXHIBIT "D" GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check or wire transfer. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the perfection of title as of the date on which the transferring instruments referred to herein are recorded in the Office of the Orange County Recorder. All prorations made during escrow are to be made on the basis of a 360-day year and a 30-day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. Escrow Agent is to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should Escrow Agent, before or after close of escrow, receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein and affected hereby, Escrow Agent shall have the right to discontinue any or all further acts on its part until such conflict is resolved to its satisfaction, and Escrow Agent shall have the further right to interplead the escrow to any Superior Court of competent jurisdiction, and to commence or defend any action or proceedings for the determination of such conflict. The Parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by Escrow Agent in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by Escrow Agent. In the event Escrow Agent files a suit in interpleader, it shall ipso facto be fully released and discharged from all obligations imposed upon it in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not Jess than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Page 12 of 12 Seller's Initials .~?1/J 25F-15 25F-16