HomeMy WebLinkAboutDE ANDA, GEORGE -2016INSURANCE NOT REQUIRED
WORT( MAY PROCEED
CLERK OF COUNCIL
DATE: 1-11-17
A-2016-374
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT (hereinafter "PSA"), entered into on bei X20, 2016,
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, George De Anda
(hereinafter "Seller'), regardless of number or gender;
THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject
to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to
purchase from Seller, that certain real property (hereinafter "Said Real Property") legally described as
follows:
SEE EXHIBIT "A" — Legal Description
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as 1221 N. Bristol Street & 1240 W. Washington Avenue, Santa Ana CA)
(APN: 405-274-12 and 405-274-13)
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 Commonwealth Title Company at 4100 Newport Place Dr, Suite 120 Newport Beach, California,
within sixty (60) days from and after the date on which the City has approved this Agreement,
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 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 14 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.
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 Million Three Hundred Thousand Dollars ($1,300;000:00)
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. City shall pay
for the entire cost of title insurance. 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.
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4. Escrow. City agrees to open an escrow at the office of Commonwealth Title Company at 4100
Newport Place Dr. Suite 120 Newport Beach, 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 sixty (60) days of the City's execution
of this Agreement. If escrow is not in a condition to close by the Close of Escrow, and failure to close is due
to unforeseen conditions of title or interest of third parties in the Property that cannot be resolved in Escrow,
then buyer may, at its option, request cancellation of escrow and this Agreement and return of any funds It
has deposited into escrow. Thereupon, all obligations and liabilities of the Parties under this Agreement shall
cease and terminate. if no such request is made, Escrow shall be closed as soon as possible thereafter.
Buyer shall be entitled to possession of the Property immediately upon close of Escrow.
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, re -conveyance 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, and Exhibit "B" 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 properly 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 5086 of the Revenue and Taxation Code of the State
of California. To the extent that Seller has prepaid any taxes or assessments attributable to the Property;
Seller shall be solely responsible for obtaining any refund due thereon from the taxing authority. Upon
written request, Buyer shall assist Seller, at Seller's sole cost, in obtaining said refund, if any; however, in no
case shall Buyer credit or otherwise pay Seller for that refund, if any, through or outside of Escrow.
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, and severance damages, the total sum of One Million
Three Hundred Thousand Dollars ($1,300,000,00). 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;
4403760.1 -- N 1565.1
(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.
a. Buyer and Seller agree that Seller may remain at the real property, and may operate Seller's
business thereon, up until 9:00 a,m. on February 1, 2017, and Seller is not obligated to pay
Buyer any rental fee for the same.
b. By no later than 9:00 a.m. on February 1, 2017, Seller shall have removed all merchandise,
inventory, equipment, personal property, and/or removable trade fixtures from the Property.
Any merchandise, inventory, equipment, personal property, and/or removable trade fixtures at
the Property as of three days after close of escrow shall be deemed abandoned by Seller on
that date.
c. If Seiler does not vacate the Property by the above stated date, the Seller agrees to have the
Court immediately issue a Writ of Possession and/or Assistance, directing the Marshall or
Sheriff of Orange County to take physical possession of the Property In favor of the City.
Seller waives the right to have the City file an unlawful detainer action, as well as waive the
right to any hearing or any requirements for an application by City to obtain the Writ of
Possession and/or Assistance and waives any and all rights to object to the Issuance of said
Writ if Seller does not vacate the Property by three (3) days after close of escrow.
8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the
part of the 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, Assigns, Successors -in -Interest. This PSA, 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.
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.
11. 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 and severance damages as this
transaction was consummated under the threat of the exercise of eminent domain.
12. Acknowledgment of Full Benefits and Release
A. By execution of this Agreement, Seller, on behalf of himself, his heirs, executors, administrators,
successors and assigns, hereby acknowledges that this Agreement provides full payment for the
acquisition of the Property by Buyer, and Seller hereby expressly and unconditionally waives any
claim for compensation for injury to the remainder ("severance damages"); precondemnation
damages; claims for inverse condemnation; loss or impairment of any "bonus value" attributable to
any lease;; any right to repurchase, leaseback from Seller, or receive any financial gain from, the sale
of any portion of the Property , or challenge Buyer's adoption of a resolution of necessity, pursuant to
Code of Civil Procedure sections 1245.245; any right to receive any notices pursuant to Code of Civil
Procedure section 1245.245; any right to enforce any other obligation placed upon Seller pursuant to
Code of Civil Procedure sections 1245.245, 1263.025 and 1263,615; any other rights conferred upon
Selleres pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and
440760.1--NI565.1
attorney's fees and costs. It being understood that this is a complete and full settlement of all
acquisition claims, liabilities, or benefits of any type or nature whatsoever relating to or in connection
with the acquisition of the Property by Buyer, with the exception of the claims being compensated
separately through the Agreement for Acquisition of Tenant -Seller's Interest in Real Property between
Seller and Buyer. The release herein does not impact, effect or waive any claims or obligations set
forth in the Agreement for Acquisition of Tenant -Seller's Interest in Real Property .This release shall
survive the Close of Escrow.
B. This Agreement arose out of Buyer's efforts to acquire the Property through its municipal authority
and was under the threat of the exercise of eminent domain pursuant to Title 7 of the Code of Civil
Procedure. Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns,
hereby fully releases Buyer, its successors, agents, representatives (including attorneys), and
assigns, and all other persons and associations, known or unknown, from all claims and causes of
action by reason of any damage which has been sustained by Seiler, or may be sustained by Seller,
as a result of Buyer's efforts to acquire the Property or to construct the works of Improvement
thereon, or any preliminary steps thereto, subject to the terms and conditions of this Agreement. This
Agreement does not, and shall not be construed to, require Seiler to indemnify Buyer for damages
which may arise as a result of Buyer's efforts to construct improvements on the Property.
C. Seller hereby acknowledges that he either has consulted with legal counsel, or had an opportunity to
consult with legal counsel, regarding the provisions of the California Civil Code section 1542, which
provides as follows:
"A general release does not extend to claims which the creditor does not know
or suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Seller acknowledges that he may have sustained damage, loss, costs or expenses which are
presently unknown and unsuspected, and such damage, loss, costs or expenses which may have
been sustained, may give rise to additional damage, loss, costs or expenses in the future.
Nevertheless, Seller hereby acknowledges that this Agreement has been negotiated and agreed
upon in light of that situation, and hereby expressly waives any and all rights which Seller may have
under California Civil Code Section 1542, or under any statute or common law or equitable principal
of similar effect.
This acknowledgment and release shall survive the Close of Escrow.
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 92701, County of Orange, State of California. The mailing address of the
Seller is 924 S. Euclid Street, Anaheim, CA 92802.
14. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
15. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of
their Agreement. Performance of this PSA 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. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant,
occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any
hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the
Property, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit
4463760.1 -- NI565.1
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, (vili) 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 at sem. (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).
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 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. 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 (1) 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, the Property, or (ii) the violation, or alleged
violation, 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, the 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 this
escrow shall close. Seller shall not be responsible for acts or omissions to act post close of this escrow.
19. 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.
20. Modification and Amendment. This PSA may not be modified or amended except in writing signed
by the Seller and City.
4463760.1 --N1565.1
21. Partial Invalidity. Any provision of this PSA that is unenforceable or Invalid or the conclusion of
which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the
remaining provisions of this PSA shall remain in full force.
22. Captions, Captions and headings in this PSA, including the title of this PSA, are for convenience
only and are not to be considered in construing this PSA.
23. Governing Law, This PSA shall be governed by and construed in accordance with the laws of the
State of California.
24. No Reliance By One Party On The Other Each party has received independent legal advice from its
attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The
provisions of this PSA 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.
25, No Third Party Beneficiary, This PSA is intended to benefit only the Parties hereto and no other
person or entity has or shall acquire any rights hereunder.
26. 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 PSA, without cost.
27. Applicability of Agreement To Assignees, This PSA shall be binding upon and shall inure to the
benefit of the successors and assigns of the Parties to this PSA.
28. 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 PSA,
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.
29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as
if fully set forth in the body of this PSA.
IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written
above.
SELLER:
George De Anda
By: G Grp a !i Ci
CITY/BUYER
City of Santa Ana
4463760.1--NI565.1
Date: 1/—// 2016
Date: / -/t�d 2016
David Cavazos
City Manager
ATTEST:
Maria D. Huizar
---
City Clerk
APPROVED AS TO FORM:
/1 lop T
Jc6A M. Funk
Assistant City Attorney
RE�ENDE FOR PROVAL:
Fred Mousavipo4--
Executive Director
Public Works Agency
4463760.1 - N 1565.1
Date:
Date: 2016
Z�
Date: 2016 � �'�
EXHIBIT "A"
LEGAL DESRIPTION
Ail that certain real property situated In the County of 01'ance, State of California, described as follows:
Lot 32 of Tract Mo. 9 , in the City of Santa Aria, County of Drange, State of California, as per Map filed in
( ole + of MISCellaneouS ("laps, In the office of the County Recorder of said Cnunty,
Except the Southedy fc¢ty feet thereof.
Assessor's Parrel Nuit7b�r 405-274-12
All that certain real property situated 1n the County of Orange, State of California, defulbed as follows:
Lot 31 of Tlaa Nn. t>>, in the City of Santa Ana, county of CJrancle, State of california, as shnavn on a Map
thereof recorded In Rnok zCr Fart 14 of Mli'cellanenir; i=lap_:, Records of 581f1 (JI'i1nCJe County.
Assessor's Parcel Number: 405-274-13
4463760.1 -- N 1 565. 1
EXHIBIT "B" (Commonwealth Land Title Company)
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 proration 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.
4467760.1 -- NJ 565.1