HomeMy WebLinkAboutKINCO REDHILL - 2010~n~4~~,' ,`'~' '~:=,~?1'IRFC, A-2010-001
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Ci.ERK GF ~~ASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY
~ATi= (-2~-1b AND BILATERAL ESCROW INSTRUCTIONS
~.T (Commercial)
THIS AGREEMENT, entered into this 4th day of January, 2010, 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 "City" or "Buyer"), and Kinco Redhill,
LLC, a California limited liability company (hereinafter called "Seller"), regardless of number or
gender;
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, Seiler agrees to sell to City,
~ ~ and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as
"said real property") described as follows:
O'
- ~ All that certain real property located in the State of California, County of Orange, City of Santa
U Ana, described as follows:
SEE ATTACHMENT 1, ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as a portion 2850 Redhill Avenue, Santa Ana, CA)
(APN 430-181-26)
Said purchase and sale of said real property shall be in accordance with and subject to ail of the
following terms, conditions, promises, covenants, agreements and provisions, to wit:
1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed,
at the office of First American Title Insurance Company, 2 First American Way, Santa Ana,
California, 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 15 below. 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 leasehold 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.
Page 1 of 9
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 FOUR HUNDERED NINTY ONE
THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100 Dollars ($491,335) insuring the title
of the City to said real property is free and clear of any and all conditions, restrictions,
reservations, exceptions, easements, assessments, profits, limitations, 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 Agreement.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance
Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days
from and after the date on which the City has approved this Agreement. This Agreement
constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this
Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to
close within 90 days of the City's execution of this Agreement.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its
acceptance of this Section 4 and of the General Provisions described in Attachment 2 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 Agreement, 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 Attachment 2 of the General
Provisions of this Agreement.
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.
Page 2 of 9
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), goodwill (if any), and severance damages, the total sum of
FOUR HUNDERED NINTY ONE THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100
Dollars ($491,335). City agrees to deposit said purchase price in escrow with the Escrow Agent
within THIRTY (30) days from and after the date on which the City has approved this Agreement,
and the Escrow Agent is hereby authorized to pay the same to Seller upon and after:
(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 Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the 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 personal property.
8. Left Blank
9. Waivers. The waiver by either party of any breach of any covenant or agreement herein
contained on the part of the other party 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.
10. Heirs, Assigns, Successors in Interest. 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.
11. 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.
12. 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.
13. 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), goodwill (if any), and severance damages
14. 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:
PJMB Commercial
ATTN: Marc Barkdull
7060 Koll Center Pkwy, Suite 334
Pleasanton, CA 94566-3109
Page 3 of J
15. Exceptions. City agrees to accept title to said real property subject to the following:
NONE.
16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the
whole of their Agreement. 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.
17. Hazardous Waste. Seller has informed City (for which City was already aware) that the
site is over an existing plume that is being cleaned up and monitored by others, and for which
Seller is not responsible. 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. S1317), (x) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sew. (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).
18. Compliance With Environmental Laws. Except for the known Hazardous Material plume
in the ground water and related contamination noted in Section 17 above, to Seller's reasonable
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 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 ail applicable federal, state, and local agencies and
bureaus.
Paae 4 of 9
19. Indemnity. Intentionally Omitted
20. Contingency. It is understood and agreed between the parties hereto that the completion
of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and
approval of the City herein. The execution of these documents and the delivery of same to
Escrow Agent constitutes said acceptance and approval.
21. Modification and Amendment. This Agreement may not be modified or amended except
in writing signed by the Seller and City.
22. 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.
23. 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.
24. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
25. 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.
26. 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.
27. 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.
28. Applicability of Aqreement 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.
29. Authority to Execute Aqreement. 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.
Page 5 of 9
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fully set forth in the body of this Agreement.
The parties have executed this Agreement as of the date written below.
SELLER: Kinco Redhill, LLC,
A #ornia limited liability company
By
Its: GPI G~~
CITY/BUYER:
CITY OF SANTA ANA
~.
BY: z ;/~~ E~-- --
David N. Ream
City Manager
ATTEST:
BY: ~~ Q"^~' .d , ~~ Dated ! ir~-~v~ a
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attor,~ey
_--,
/ t /~
BY: ~-
J se Sandoval
Chief Assistant City A . ey
Pale 6 oP 9
Attachment 1
Page 1 [-f t
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Pabe 7 of 9
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RED HILL AVENUE
(KINCO REOHILL, lLG)
CONTAINING: 6,462 SQUARE FEET
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Page 8 of 9
Attachment 2
GENERAL ESCROW PROVISIONS
All disbursements shall be made by Escrow's check. 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 date on which instruments referred to herein are
filed for record. All adjustments are to be made on the basis of 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.
You are 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 you 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 affected hereby, you shall have the right to discontinue
any or all further acts on your part until such conflict is resolved to your satisfaction, and you
shall have the further right 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 you in connection with, or arising out of this escrow, including, but without limiting the
generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in
interpleader, you shall ipso facto be fully released and discharged from all obligations imposed
upon you 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 less 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.
Pale 9 of 9
LICENSE AND RIGHT OF ENTRY
Kinco Redhil, LLC, a California limited liability company (hereinafter referred to as "Licensor"), does hereby
grant to City of Santa Ana, a charter city and municipal corporation duly organized and existing under the
Constitution and/or laws of the State of California, its officers, agents, employees or representatives
(collectively referred to as the "Licensee"), the right to enter and construct street, sidewalk and landscaping
improvements necessary for the Dyer Road/Barranca Parkway/Redhil) Avenue Street widening project as
shown on the real property described as follows:
SEE EXHIBIT "A"AND "B" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
This permission is granted subject to the following conditions being fulfilled by City:
(A) City to deposit $491,335, plus closing costs into escrow with First American Title Insurance Company,
for the City's acquisition of 6,462 square feet, as noted in the January 4, 2010 "Purchase and Sale
Agreement ForAcquisition of Real Property and Bilateral Escrow Instructions."
(B) Permanent Street Improvements will be constructed in the area identified in the Exhibit "A and "B"
drawings.
(C) During construction of driveway approaches, access to the business will be maintained at all times. In
some cases, construction of one-half of a driveway approach at a time may be required. In this case,
the contractor shall provide a temporary asphalt driveway to the business until a permanent concrete
driveway is constructed. At no time shall the contractor block access to the business during
construction.
(D) The Licensee agrees to indemnify and hold harmless, Licensor, from any liability arising out of the
Licensee's exercise of this License and Right-of-Entry. The Licensee further agrees to repair any
damage to said property caused by the exercise of this License and Right of Entry at its sole cost and
expense and to restore said property, with the exception of the improvements left thereon, as nearly
as practicable to the state in w hich it existed prior to the use o f the property by the Licensee.
(E) No right of entry to existing buildings is conveyed by this instrument.
This License and Right of Entry shall expire upon completion of said construction work, and in any event,
no later than December 31, 2011, unless extended by written agreement between the undersigned and the
Licensee.
LICENSOR: Kinco Redhil), LLC
A I~ fnia limited liability company
BY~
Name: r ~-
Title: ~~~~
LICENSEE: 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.
David N. Ream
City Manager
APPROVED AS TO FORM:
JOSEPH .FLET~HER
City Attor y
BY: .-~"
Josh Sandoval
C,~ef Assistant City rney.
Attachment 1
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