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HomeMy WebLinkAboutWINCHELL'S DONUT HOUSES-2010A-2010-218 PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this C y of k01YM2k(-20l0, 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 "City"), and WINCHELL'S DONUT HOUSES OPERATING COMPANY, L. P. (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, Seller 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: 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 624 N. Bristol Street, Santa Ana, CA) Seller and City acknowledge and agree that the sale of said real property from Seller to City is in lieu of condemnation. 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: 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. Intentionally Omitted. 3. Title Insurance. It shall be a condition to the obligation of City to purchase said real property that Seller 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. Seller agrees to delivery to City a policy of title insurance to be issued by the above mentioned title company, with City therein named as the insured, in the amount of NINE Revised. 9.13.2010wkj -I- HUNDRED FIFTEEN THOUSAND AND NO/100 Dollars ($915,000) insuring the title of 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, except as set forth in Paragraph 15 below and excepting such specific ones as City may hereinafter expressly agree to take subject to. 4. Escrow. Seller and City agree to open an escrow for the purchase and sale of said real property in accordance with the terms and conditions of this Agreement (the "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 signed 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 120 days of the City's execution of this Agreement. Seller and City agree to execute such escrow instructions as the Escrow Agent shall reasonably require in connection with the opening and administration of the Escrow, provided that all such escrow instructions shall be consistent with the terms of this Agreement and any modifications to this Agreement mutually agreed upon by Seller and City. Seller agrees to execute and deliver to the Escrow Agent a Certificate of Non-Foreign Status sufficient to meet the requirements of FIRPTA. 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 Exhibit "B" 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 obligations imposed upon it under Section 4, General Provisions of this Agreement. Agreement is limited to performance of the Section 6, Section 11 and Exhibit "B" of the 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 -2- 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, as improved, goodwill (if any), and severance damages, the total sum of NINE HUNDRED FIFTEEN THOUSAND AND NO/ 100 Dollars ($915,000). City agrees to deposit said purchase price in the Escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has signed 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 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, subject to the interests described in Paragraph 15, below. 8. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct statement of all leases and agreements for occupancy of said real property (Seller Estoppel) on a form furnished to Seller by City and deliver same to City within fifteen (15) days after such form is provided with copies of any written leases or rental agreements attached. All rents for any such leases or agreements for occupancy of said real property will be prorated as of the close of Escrow on the basis of a 30-day month/360-day year consistent with that statement, subject to approval of City. Seller hereby agrees not to rent any units on the premises which are now vacant, or which may be vacated by present occupants prior to close of Escrow. Seller agrees that any and all Tenant Security Deposits pertaining to said real property collected by or in the possession of Seller prior to the close of Escrow shall be transferred to and become the property of City at the close of Escrow. Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded). Seller also warrants that there are no oral leases on all or any portion of said real property which grant the right to occupy any portion of said real property for a term exceeding one month. -3- 9. Waivers. The waiver by City 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. 10. Assigns, Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the successors and assigns of Seller and City. 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 during the 30-day period established pursuant to Paragraph 6, above, for the purpose of making necessary inspections, subject to the rights of tenants in possession. City hereby expressly acknowledges and agrees that it shall acquire the Property "AS IS" and "WHERE IS," and "WITH ALL FAULTS". City shall acquire the Property after such inspection, analysis, examination and investigation as it cares to make and expressly without Seller's covenant, warranty or representation, whether express or implied, statutory or otherwise, as to physical condition, title, leases, rents, income, expenses, operation, environmental conditions, zoning or other regulation, compliance with law, suitability for particular purposes, or any other matter whatsoever. City expressly acknowledges that it shall have been afforded ample opportunity to inspect, analyze and investigate all aspects of the Property and conditions relevant thereto and the business conducted thereon, and City shall rely on City's own investigation and inspection, and all matters relating thereto and agrees that Seller has and shall have no liability or obligation whatsoever. City hereby expressly acknowledges that, notwithstanding anything to the contrary contained in this Agreement or elsewhere, Seller has not made and shall not be deemed to have made any representations or warranties whatsoever regarding the Property or otherwise, and there shall be no obligations of Seller that shall survive the Closing. City hereby assumes all risks in connection with the Property and the matters referred to in this Section. 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 Seller's fixtures, 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, Santa Ana, CA 92702. The mailing address of the Seller is Winchell's Donut Houses Operating Co., L.P., 5220 Pacific Concourse Drive, Suite 130, Los Angeles, CA 90045. Either party may change its notice address by delivery of a notice to the other, specifying the new address. Notices hereunder shall be effective upon actual delivery (or refusal of delivery) to the other party. -4- 15. Exceptions. City acknowledges receipt and terms of the Lease Agreement between Seller and Yum Yum Donut Shops, Inc., dated as of October 20, 2004. 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. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of said real property used, generated, released, discharged, stored, 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, other than materials used in connection with the operation of said real property, in accordance with applicable laws. 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, other than materials used in connection with the operation of said real property, in accordance with applicable laws. 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 et s... (42 U.S.C. 56903) 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. 59601 et seq. (42 U.S.C. 59601). -5- 18. Compliance With Environmental Laws. To the best of Seller's knowledge, said real property complies in all material respects 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 relating to Hazardous Material of the City, 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, insofar as any of the same are applicable to said real property. 19. Indemnity. Seller agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, said real property in violation of applicable laws as a result of acts or omissions of Seller while it was in possession of said real property, or (ii) the violation, or alleged violation, by Seller, while it was in possession of said real property, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, said real property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date the Escrow shall close. Seller shall not be responsible for acts or omissions to act post close of the Escrow. 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 constitute 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. -6- 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 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. 29. Authority to Execute Agreement. 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. 30. Assignments. Neither Seller nor City shall have the right to assign its rights under this Agreement without the express prior written consent of the other. -7- 31. Disputes. In the event of any dispute between Seller and City with respect to the interpretation or enforcement of this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party, in addition to any other relief or remedy, its costs of suit and reasonable attorneys' fees. 32. 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: WINCHELL'S DONUT HOUSES OPERATING COMPANY, L.P. By: - Date: Se-P4, 1.`i 1Ec c Print Name: Title: (?PtS%AL?r, t CITY/CITY: CITY OF SANTA ANA n By: l David N. Ream City Manager ATTEST: By. Dated: /? ?a_G> J c= Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: Jo Sandoval anaging Senior Assisthnt City Attorney -8- 1 1 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: LOT 2 AND 3 OF TRACT 662, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 24 PAGE 17, MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THE SOUTH 14 FEET OF SAID LOT 2 APN: 405-073-14 -9- EXHIBIT "B" 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, except to the extent such costs, damages, judgments, and expenses are caused by your negligence or willful misconduct, 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. -10-