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HomeMy WebLinkAboutIN-N-OUT BURGERS (2) - 2017INSURANCE NOT ON FILE A-2017-310 WORK MAY Q PROCEED CLERK OF COUNCIL DATE, DEC O 7 2017 AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT of Purchase and Sale ("Agreement"), dated Noel. 21, , 2017, is entered into by and between the CITY OF SANTA ANA, a California charter city and municipal corporation ("Seller") and IN -N -OUT BURGERS, a California corporation ("Buyer") for the acquisition by Buyer of certain property described below. RECITALS A. Seller desires to sell and Buyer desires to purchase a fee interest in (i) such real property owned by Seller as more particularly described and depicted in Exhibit "A", attached hereto and made part hereof, together with (ii) all buildings and improvements now located thereon, if any, (iii) all easement rights and appurtenances thereto, including, without limitation, all easements and appurtenances, if any, in Seller's adjoining and adjacent land, roads, streets, and lanes, whether public or private, reasonably required for the installation, maintenance, operation, and/or service of sewers, water, gas, drainage, electricity and other utilities and for driveways and approaches to and from abutting roads, streets, and lanes, for the use and benefit of the above-described real property, (iv) any mineral rights and water rights owned by Seller, and (v) all of Seller's right, title and interest, if any, in any development rights (collectively, the "Property"). B. The subject Property was acquired by Seller in 2016 and 2017 as part of the Bristol Street Improvement Project. These parcels are vacant and are not needed for public use or improvements. C. The parties desire by this Agreement to provide the terms and conditions for the purchase and sale of the Property. AGREEMENT The parties therefore agree as follows: s s y Buyer agrees to buy, and Seller agrees to sell and convey, the Property for the purchase price and upon the terms and conditions hereinafter set forth. Upon execution of this Agreement by all parties, the parties shall open an escrow ("Escrow") with Commonwealth Land Title Company_("Escrow Holder"), whose address is 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, for the purpose of consummating the purchase and sale of the Property, as described herein. The date on which Escrow is opened with Escrow Holder, which shall be evidenced by Escrow Holder's acceptance of this Agreement, shall be referred to as the "Effective Date." By its execution and delivery of this Agreement, Escrow Holder agrees to be bound by the terms and conditions of this Agreement to the extent applicable to its duties, liabilities and obligations as "Escrow Holder." Escrow Holder shall hold and dispose of the Escrow Deposit (as defined below) in accordance with the terms of this Agreement. The Escrow Holder's General Provisions are attached hereto as Exhibit "B" and made a part hereof. 2.1 Purchase Price The total purchase price for the Property shall be the sum of Nine Hundred Five Thousand Dollars ($905,000.00) ("Purchase Price"). (a) Escrow Deposit. Within three (3) business days following the Effective Date, Buyer will remit into escrow a deposit of Twenty Thousand Dollars ($20,000.00) ("Escrow Deposit"). Such Escrow Deposit shall be fully refundable until the expiration of the Due Diligence Period and as otherwise set forth herein. Such Escrow Deposit shall be credited towards the Purchase Price paid to Seller as provided in this Agreement. (b) Closing Payment. The Purchase Price, as adjusted by the application of the Escrow Deposit and by the proration and credits specified herein, shall be paid by Buyer to Seller in cash at the Close of Escrow (the amount to be paid under this Section 2.1(b) being herein called the "Closing Payment"). (c) Independent Consideration. Escrow Holder shall pay a portion of the Escrow Deposit in the amount of One Hundred Dollars ($100.00) ("Independent Consideration") to Seller upon the earlier to occur of the Close of Escrow (as defined below) or the termination of this Agreement for any reason. The Independent Consideration constitutes bargained -for consideration for this Agreement and Buyer's rights under Section 2.6(d) and is expressly acknowledged to be adequate. The obligation of Buyer to pay the Independent Consideration to Escrow Holder, and the obligation of Escrow Holder to pay the same to Seller, are unconditional and shall survive any termination of this Agreement. 2.2 Close of Escrow If Buyer does not exercise its right to terminate this Agreement under Section 2.6 of this Agreement, then Escrow shall close ("Close of Escrow") on a date mutually agreeable to the parties within ten (10) days subsequent to Buyer's attainment of all of the Approvals (as defined below) including, without limitation, the building permit and all related municipal and other governmental approvals, as applicable, for the Intended Use (as defined below). 2 2.3 Condition of Title to Property Seller shall cause the conveyance of title to the Property to Buyer as evidenced by an ALTA Owner's Policy of Title Insurance covering the Property and any easements appurtenant thereto ("Title Policy") issued by Commonwealth Land Title Company ("Title Company") in an amount equal to the Purchase Price. During the Due Diligence Period, Buyer shall have the right to obtain and examine: (i) an ALTA title commitment (the "Title Commitment") binding the Title Company to issue the Title Policy to Buyer; and (ii) an ALTA/ACSM survey of the Property. The Title Policy shall show as exceptions with respect to the Property only matters approved in writing by Buyer, which approval shall be delivered in writing by Buyer to Seller prior to the expiration of the Due Diligence Period. Buyer shall in addition have approved in writing the legal description of the Property to be set forth in the Title Policy prior to the expiration of the Due Diligence Period. At the Close of Escrow, Seller shall cause all standard title exceptions typically appearing on an ALTA title insurance policy, including the gap exception, the exception relating to parties in possession, the survey exception, and all exceptions related to mechanics liens to be deleted from the Title Commitment. 2.4 Escrow and Closing Costs Seller shall pay all applicable documentary transfer taxes and recording fees payable in connection with the purchase and sale of the Property. Seller shall also pay for the cost of the premium for the Title Policy and any endorsements required to cure or eliminate any exceptions not approved by Buyer pursuant to Section 2.2 of this Agreement, and Buyer shall pay for the costs of additional endorsements requested by Buyer. Buyer and Seller shall each pay one-half (1/2) of all escrow fees in connection with the purchase and sale of the Property. Unless specified elsewhere in this Agreement, all other closing costs related to the transaction shall be paid by the Parties in the manner consistent with customary practice for Orange County, California. Escrow Holder shall notify Buyer and Seller in writing of their respective shares of such costs at least five (5) business days prior to the Close of Escrow. 2.5 Deposit of Funds and Documents (a) Prior to Close of Escrow, Buyer shall deposit into Escrow (i) the Escrow Deposit, (ii) all escrow and Buyer's share of closing costs as described above; (iii) the Closing Payment; and (iv) such other documentation as is necessary to close Escrow; provided, however, that Buyer shall not be required to deposit the Closing Payment until Buyer has been notified by Escrow Holder that (i) Seller has delivered to Escrow Holder each of the documents and instruments to be delivered by Seller in connection with the sale of the Property, (ii) Title Company is irrevocably and unconditionally committed to issue and deliver the Title Policy, and (iii) the only impediment to Close of Escrow is delivery of such amount by or on behalf of Buyer. (b) Prior to the Close of Escrow, Seller shall deposit into Escrow (i) the properly executed grant deed for conveyance of the Property to Buyer; (ii) a duly executed bill of sale, assignment and assumption agreement from Sellerwith respect to the KI tangible and intangible personal property included in the Property; and (iii) such other documents and sums, if any, as are necessary to close Escrow in conformance herewith. 2.6 Buyer's Conditions Precedent to Close of Escrow The obligation of Buyer to purchase the Property as contemplated by this Agreement and the Close of Escrow is subject to satisfaction of each of the following conditions: (a) All representations and warranties of Seller set forth in this Agreement shall be true and correct as of the date of the Close of Escrow. (b) Seller shall timely perform all obligations required by the terms of this Agreement to be performed by it. (c) The irrevocable and unconditional written agreement of Title Company to record the grant deed at the Close of Escrow and to issue to Buyer the Title Policy, effective as of the date and time the deed is recorded. (d) Buyer shall have sixty (60) calendar days, from the opening of escrow ("Due Diligence Period"), within which to perform and complete all of Buyer's due diligence examinations, reviews and inspections of all matters pertaining to the Property, including all leases and service contracts, all physical, environmental and compliance matters and conditions respecting the Property, including, but not limited to, an environmental and soils audit of the Property which may include at Buyer's option tests of soil and ground water and boring, percolation, and other soil and water tests and/or such other investigations or tests commonly performed as part of a Phase I or Phase II environmental study, and to otherwise satisfy its contingencies ("Due Diligence Investigations"). During the term of this Agreement, Seller shall provide Buyer with reasonable access to the Property, as further set forth below. Within ten (10) days following the Effective Date, Seller shall deliver to Buyer true and complete copies of any environmental reports, title documents and any other agreements, documents, or information pertaining to the Property to the extent in Seller's possession or reasonably obtainable by Seller. Seller will make every effort to provide all pertinent documents, but Seller's inability or failure to provide any document shall not be considered a violation subject to termination of the Agreement. At any time on or before the last day of the Due Diligence Period, Buyer may, in its absolute and sole discretion, for any reason or no reason, give written notice ("Termination Notice") to Seller electing to terminate this Agreement, whereupon a condition to Buyer's obligation to close shall not be satisfied, the Escrow Deposit (less the Independent Consideration) shall be immediately returned by the Escrow Holder to Buyer, and this Agreement, and the obligations of the parties hereunder, shall terminate (other than those obligations that expressly survive a termination of this Agreement). If Buyer fails to deliver the Termination Notice to Seller prior to the expiration of the Due Diligence Period, then Buyer shall have no further right to terminate this Agreement and have the Escrow Deposit (less the Independent Consideration) returned to Buyer except as otherwise set forth herein. a] (e) Buyer shall have obtained all final approvals, including, without limitation, the building permit and all governmental approvals, permits and other determinations (the "Approvals") necessary for developing the Property and constructing thereon, pursuant to a site plan which is acceptable to Buyer, a building or buildings, together with patio seating area, trash enclosure, drive-through facilities or other special window service facilities, parking, signage and related site improvements (the "Intended Improvements") and the operation of an In -N -Out Burgers Restaurant with a drive-through facilities or other special window service facilities and a patio seating area in accordance with Buyer's plans and specifications (as the same may be modified from time to time) (the "Intended Use"), such that immediately following the Close of Escrow, Buyer shall be entitled to commence construction of the Intended Improvements. (f) No material adverse physical change to the Property, including those caused by condemnation and/or casualty, shall have occurred subsequent to the Effective Date and on or prior to the Close of Escrow. (g) There shall not be pending any action or proceeding before any governmental authority involving the Property, including, but not limited to, any action or proceeding, the outcome of which could prohibit the construction of the Intended Improvements or the use of the Property or the Intended Improvements for the Intended Use. If any of the conditions precedent in favor of Buyer set forth above are neither satisfied nor waived by Buyer by the Close of Escrow and said failure continues for two (2) business days after notice thereof from Buyer to Seller, then, Buyer (at its option) may terminate this Agreement by giving a notice of termination to Seller on or before all of the applicable conditions have been satisfied. In such case, (i) the Escrow shall terminate, (ii) Buyer will have no further obligation to purchase the Property from Seller, (iii) Seller will have no further obligation to sell the Property to Buyer, and (iv) the parties will have no further obligation to one another, except as otherwise expressly provided herein. In the event of such a termination, the Escrow Deposit shall be returned to Buyer. 2.7 Seller Conditions Precedent to Close of Escrow For the benefit of Seller, the Close of Escrow shall be conditioned upon the timely performance by Buyer of all obligations required by the terms of this Agreement. 2.8 License to Enter Property During Due Diligence Period Seller licenses the Buyer and its contractors to enter the Property for the purpose of undertaking the Due Diligence Investigations as the Buyer deems necessary and appropriate. The license given in this Section 2.8 shall only be effective until the earlier of: (i) the Close of Escrow, (ii) the termination of this Agreement, or (iii) the date of any Termination Notice provided hereunder. The Buyer shall conduct all Due Diligence Investigations during the Due Diligence Period at its sole cost and expense. The Buyer shall abide by any reasonable condition(s) of entry onto the Property required by Seller, 5 whether or not set forth in this Agreement. Any Due Diligence Investigations by the Buyer shall not unreasonably disrupt any then -existing use or occupancy of the Property. (a) Limitations. The Buyer shall not conduct any intrusive or destructive testing of any portion of the Property, other than low volume soil samples and other than as expressly described herein, without Seller's prior written consent. Following the conduct of any Due Diligence Investigations on the Property, the Buyer shall restore the Property to substantially its condition prior to the conduct of such Due Diligence Investigations. (b) Indemnity. Buyer agrees to indemnify, defend and hold the Seller, and its officers and employees, harmless from and against all actual damages, judgments, costs, expenses and fees arising from or related to any act or omission of Buyer in performing its Due Diligence Investigations under this Agreement (excluding discovery of any pre-existing conditions at the Property), except to the extent arising out of the negligence or willful misconduct of Seller, its officers or employees. For the avoidance of doubt, Seller acknowledges that Buyer shall be under no obligation whatsoever with respect to any hazardous substances or other defects, including, but not limited to, contaminated soil and/or other materials, extracted or otherwise discovered by Buyer in the performance of its Due Diligence Investigations of the Property and Seller shall bear all liability and responsibility with respect thereto, and Buyer shall not be obligated to indemnify, defend or hold Seller harmless due to the discovery or existence of any hazardous substances or other defects on or about the Property nor shall Buyer be obligated to indemnify, defend or hold Seller harmless from any liens, claims, losses, liabilities or expenses arising out of or resulting directly or indirectly from the acts, omissions or negligence of Seller or any party acting by, through or under Seller. (c) Insurance. Prior to any entry upon the Property by or on behalf of Buyer, Buyer (at Buyer's sole cost and expense) shall provide Seller with a certificate of Buyer's liability insurance policy designating Seller as an additional insured. The foregoing certificate shall evidence that Buyer has obtained a policy or policies of comprehensive general liability and property damage insurance against loss, damage or liability for injuryto or death of any person, or loss or damage to property occurring in or about the Property. Such insurance shall include comprehensive general liability coverage for bodily injury and property damage in the amount of at least $1,000,000.00 combined single limit, and shall include automobile liability coverage for bodily injury and property damage in the amount of at least $1,000,000.00 combined single limit. Buyer shall see that insurance coverage as provided in this paragraph is maintained throughout the duration of Buyer's right of entry onto the Property. 3. REPRESENTATIONS AND WARRANTIES OF PARTIES 3.1 Representation and Warranties of Seller Seller makes the following representations and warranties with respect to the Property, each of which shall survive Close of Escrow: (a) Seller owns fee title to the Property; and (b) The execution and delivery of this Agreement by Seller, Seller's performance hereunder, and the consummation of the transaction contemplated hereby will not constitute a violation of any order or decree or result in the breach of any contract or agreement to which Seller is at present a party or by which Seller is bound; and (c) To Seller's actual knowledge, no litigation and no governmental, administrative or regulatory act or proceeding regarding the environmental, health and safety aspects of the Property is pending, proposed or threatened; and (d) Seller will not enter into any agreements or undertake any new obligations prior to Close of Escrow which will in any way burden, encumber or otherwise affect the Property without the prior written consent of the Buyer; and (e) There are no leases, options, licenses, options to purchase, rights of first refusal, contracts of sale, or operating or other agreements or contracts regarding the use, occupancy, management or operation of the Property that will survive the Close of Escrow; and (f) Seller has not alienated, encumbered, transferred, optioned, leased, assigned, or otherwise conveyed its interest or any portion of its interest in the Property or any portion thereof except as may be expressly set forth in the Title Commitment, nor has the Seller entered into any agreement (other than this Agreement) to do so; and (g) No person or entity holds any rights to purchase or otherwise acquire all or any portion of the Property (or interest therein), including pursuant to any purchase agreement, option, right of first offer, right of first refusal, gift or other agreement; and (h) Seller, as a government agency, has not been subject to real property tax assessment on the Property. Transfer of title to Buyer at the Close of Escrow will subject the Property to an assessment from the Orange County Office of the Assessor, which assessment shall be effective commencing on the date of Close of Escrow and not before, and shall be the obligation of the Buyer after the Close of Escrow, it being understood, however, that if the Property is subject to assessment for any period of time prior to the Close of Escrow, such assessment shall be the liability of the Seller, and Seller's obligations with respect thereto shall survive the Close of Escrow; and (i) Seller is aware of its obligation under California Health and Safety Code Section 25359.7 to disclose any knowledge which they may have regarding any release of Hazardous Substances (as defined by applicable federal, state and local statutes, rules and regulations) upon or under the Property. Seller warrants and represents to Buyer that Seller is not aware that any such Hazardous Substances have been generated, stored or disposed of upon or under the Property. 7 3.2 Representations and Warranties of Buyer Buyer makes the following representations and warranties with respect to the Property, each of which shall survive Close of Escrow. (a) Buyer hereby represents and guarantees that, subject to Permitted Delay (as defined herein), Buyer shall open for business to the public on the Property for one (1) day as an In -N -Out Burgers restaurant (the "Opening Covenant") on or before the date that is eighteen (1 S) months following Close of Escrow (the "Opening Deadline"). If Buyer has not satisfied the Opening Covenant on or before the Opening Deadline, Seller may, as its sole and exclusive remedy, elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to the terms and conditions below. Seller shall provide written notice to Buyer of its exercise (the "Exercise Notice") within sixty (60) days following the Opening Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for closing which is no less than forty-five (45) days, nor more than sixty (60) days, following the date of the Exercise Notice, with such closing then occurring on a date mutually convenient to both Seller and Buyer (the "Repurchase Closing Date"). If (a) Seller fails to deliver its Exercise Notice to Buyer within the Exercise Window, or (b) Buyer satisfies the Opening Covenant after receipt of the Exercise Notice but prior to the Repurchase Closing Date, then the Repurchase Right shall automatically terminate and be of no further force and effect, and Seller shall deliver to Buyer, upon Buyer's request, a written instrument in recordable form, to be prepared by Buyer and subject to Seller's reasonable approval, which would remove the Repurchase Right from title to the Property. The repurchase deed shall be identical in form to the deed by which title to the Property was conveyed by Seller to Buyer and shall be free and clear of any and all mortgage liens or other evidence of indebtedness. The purchase price to be paid to Buyer by Seller for the Property shall be equal to ninety percent (90%) of the Purchase Price paid by Buyer to Seller under this Agreement. Seller's exercise of the Repurchase Right shall be Seller's sole and exclusive remedy for Buyer's failure to satisfy the Opening Covenant prior to the Opening Deadline. Notwithstanding anything to the contrary set forth herein, if Seller elects to exercise its Repurchase Right, in no event may any consideration be paid to Buyer be in a form other than cash. As used herein, the term "Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake; flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence; sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the open market; failure of transportation; strikes (otherthan any strike resulting from acts of Buyer); lockouts; action of labor unions; condemnation laws; requisition or order of government or civil or military or naval authorities; or any other similar cause to those stated above, not within a Buyer's reasonable control. Notwithstanding anything to the contrary contained herein, in no event shall financial inability constitute Permitted Delay. (b) The execution and delivery of the Agreement by Buyer, Buyer's performance hereunder, and the consummation of the transaction contemplated hereby will not constitute a violation of any order or decree or result in the breach of any contract or agreement to which Buyer is at present a party or by which Buyer is bound; and E:3 (c) No other action by Buyer is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein. 4. ACKNOWLEDGEMENT OF FULL BENEFITS By execution of this Agreement, Seller 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 damages, interest, loss of goodwill, severance damages, or any other compensation or benefits other than as already expressly provided for in this Agreement, 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. 5. REMEDIES If Seller defaults under this Agreement, then Buyer may either: (i) terminate this Agreement by written notice to Seller, whereupon the Escrow Deposit (less the Independent Consideration) shall be immediately returned by the Escrow Holder to Buyer, and this Agreement and the obligations of the parties hereunder shall terminate (other than those obligations that expressly survive a termination of this Agreement); or (ii) bring an action for specific performance of this Agreement. IF BUYER FAILS TO COMPLETE THE PURCHASE PROVIDED FOR IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO BUYER. FURTHER, BY INITIALING BELOW BUYER AND SELLER AGREE AND UNDERSTAND THAT IN EVENT OF DEFAULT BY BUYER, (A) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (B) AN AMOUNT EQUAL TO THE ESCROW DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES IF THE CLOSING DOES NOT OCCUR BY REASON OF BUYER'S DEFAULT HEREUNDER AND SHALL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELLER; (C) THE PAYMENT OF THE LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE AND SOLE REMEDY OF SELLER AT LAW OR IN EQUITY; (D) SELLER MAY RETAIN THAT PAYMENT ON ACCOUNT OF THE PURCHASE PRICE FOR THE PROPERTY AS LIQUIDATED DAMAGES; AND (E) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671,1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. THE PARTIES -HAVE FREELY NEGOTIATED THE FOREGOING LIQUIDATED DAMAGES PROVISION IN GOOD FAITH. IF THIS AGREEMENT IS TERMINATED FOR ANY REASON OTHER THAN BUYER'S DEFAULT, THE ESCROW DEPOSIT SHALL BE RETURNED TO THE BUYER. (Initi fs of Seller) (Initials of Buyer) RIGHT OF POSSESSION Seller hereby grants Buyer and its representatives, agents, consultants and contractors, physical and legal possession of the Property effective as of the Close of Escrow, free and clear of all tenancies and parties in possession, subject only to matters approved in writing by Buyer pursuant to Section 2.3 hereof. 7. AS IS CONDITION Buyer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property with regard to any physical condition or state of the Property. Except as otherwise expressly provided in this Agreement, or in the documents to be delivered by Seller to Buyer at Close of Escrow, by completing the purchase of the Property following its Due Diligence Investigations, Buyer evidences its unconditional acceptance of the condition of the Property. Except as otherwise expressly provided in this Agreement, or in the documents to be delivered by Seller to Buyer at Close of Escrow, Buyer acknowledges and agrees that Buyer is purchasing the Property on an "AS -IS," "WHERE - IS" basis. Buyer is not offering to purchase the property based on any representation by Seller or Seller's agent except those expressly set forth in this Agreement. Buyer hereby acknowledges that the purchase of the Property is without warranties of any kind from Seller, expressed or implied, except as expressly set forth in this Agreement or in the documents to be delivered by Seller to Buyer at Close of Escrow, as to the condition of the Property or its improvements, if any, including, without implied limitation, soils, access to the Property or to utilities, appliances, structure utility systems, roof, foundation, landscaping or any other component of the Property. Except as otherwise expressly provided in this Agreement, or in the documents to be delivered by Seller to Buyer at Close of Escrow, Seller does not warrant that the Property conforms with any ordinances, including, without implied limitation, zoning or building ordinances. MISCELLANEOUS 8.1 Notice Any notice to be given or other document or documents to be delivered to either party by the other hereunder may be delivered (a) in person, (b) by overnight courier, (c) by facsimile (provided that such facsimile shall be followed within one (1) business day by delivery of such notice pursuant to clause (a), (b) or (d)), or (d) by United States Mail in the State of California, duly registered or certified, with postage prepaid, and addressed as follows: Seller: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: Executive Director, PWA Facsimile: (714) 10 Buyer: In -N -Out Burgers 13502 Hamburger Lane Baldwin Park, California 91706 Attention: Real Estate Department Facsimile: (626) 338-9173 Any notice or other document sent by personal delivery, overnight courier or registered or certified mail as aforesaid shall be considered to have been effectively served or delivered on the day of actual delivery (whether accepted or refused) as evidenced by printed confirmation if by facsimile, on the date of deposit with the United States Postal Service if by certified mail, and as confirmed by the courier service if by courier; provided, however, that if such actual delivery occurs after 5:00 p.m. (local time where received) or on a non -business day, then such notice or communication so made shall be deemed effective on the first business day after the day of actual delivery. 8.2 Time of Essence Time is of the essence with respect to each and every provision hereof. 8.3 Assignment Neither this Agreement, nor any interest herein, shall be assignable by any party without prior written consent of the other, non -assigning party hereto. For Seller, the Executive Director of Public Works Agency shall have the authority to review and approve or deny any request for assignment. 8.4 Governing Law All questions with respect to this Agreement, and rights and liabilities of the parties hereto, shall be governed by the laws of the State of California. Venue shall be in the County of Orange. 8.5 Inurement Subject to the restrictions against assignment as herein contained, this Agreement shall inure to the benefit of and shall be binding upon, the assigns, successors in interest, personal representatives, estates, heirs and legatees of each of the parties hereto. 8.6 Attorney's Fees In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorney fees and costs. 8.7 Entire Agreement 11 The Agreement contains the entire Agreement of the parties hereto, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties hereto, relating to the subject matter contained in this Agreement which are not fully expressed herein. 8.8 Additional Documents All parties hereto agree to execute any and all additional documents and instruments reasonably necessary to carry out the terms of this Agreement. 8.9 No Merger All warranties, representations, acknowledgements, releases, covenants and obligations contained in this Agreement shall survive delivery and recordation of the grant deed. 8.10 Authority to Execute Agreement Buyer and Seller warrant to each other that the persons executing this Agreement and the instruments referenced herein on behalf of Buyer and Seller have the right, power and authority to bind Buyer and Seller, respectively. 8.11 Counterparts This Agreement may be signed in counterpart or duplicate copies, and any signed counterpart or duplicate copy shall be equivalent to a signed original for all purposes. 8.12 Brokers Seller warrants to Buyer that no real estate agents or brokers have been involved in negotiating this transaction or the execution of this Agreement. If any claims arise for real estate commissions, fees, or compensation in connection with this transaction, then Seller shall indemnify, defend and hold Buyer harmless from any loss, cost, damage, or expense, including, without limitation, attorneys' fees and costs of litigation, that Buyer suffers because of any such claim. Buyer hereby indemnifies, defends, and agrees to hold Seller harmless from and against claims for any commission, fees, or compensation in connection with this transaction, which is alleged to be owing because of the agreement or alleged agreement of Buyer to pay any such commission, fee or compensation to any party. 8.13 Dates If, pursuant to this Agreement, any date indicated herein falls on an official United States holiday, or a Saturday or Sunday, the date so indicated shall mean the next business day following such date. 12 [SIGNATURES ON NEXT PAGE] 13 SIGNATURE PAGE TO AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SELLER: CITY OF SANTA ANA, a California charter city and municipal corporation By: Raul Godinez li 1r City Manager Fred Mousa ipo r, Executive Director Public Work Agency ATTEST: h , By. 7 iv Maria Huizar Clerk of the Council APPROVED AS TO FORM: By: 4 V1r.. JoV M. Funk Assistant City Attorney BUYER: IN -N -OUT BURGERS, a California co tion By: — ( Carl Aren ice President of Real Estate 14 ACCEPTANCE BY ESCROW HOLDER Commonwealth Land Title Company_hereby acknowledges that it has received a fully executed counterpart of the foregoing AGREEMENT FOR PURCHASE AND SALE ("Contract') and agrees to act as Escrow Holder or agent under the Contract and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. Dated:[d�lq-0 l Commonwealth Land Title Company �r By: Name:eCIG W+ Its: Z d IM1cJ U I! 15 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All right, title and interest of Seller in and to that certain real property located in the City of Santa Ana, Orange County, California, described as follows: 16 EXHIBIT 'A' LEGAL DESCRIPTION A.P. No's 405-262-21, 405-262-22, & 405-262-23 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING THOSE LANDS DESCRIBED IN THAT GRANT DEED RECORDED JUNE 7TH, 2016, AS INSTRUMENT No. 2016000256270, TOGETHER WITH THOSE LANDS DESCRIBED IN THAT GRANT DEED RECORDED NOVEMBER 30TH, 2016, AS INSTRUMENT No. 2016000605606, AND ALSO TOGETHER WITH THOSE LANDS DESCRIBED IN THAT INTER -SPOUSAL INDIVIDUAL GRANT DEED RECORDED NOVEMBER 29T11, 2016, AS INSTRUMENT No. 2016000601396, ALL OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; EXCEPTING FROM THE HEREIN ABOVE DESCRIBED LANDS, THOSE LANDS LYING WESTERLY FROM A LINE, SAID LINE BEING CONCENTRIC WITH AND 64.00 FEET EASTERLY FROM THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE CENTERLINE INTERSECTION OF 9TH STREET AND BRISTOL STREET, SAID BEING SHOWN ON THE MAP OF TRACT No. 1262, FILED IN BOOK 39, PAGE 6, OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY; THENCE NORTH 1°31'41" EAST, 390.07 FEET ALONG SAID CENTERLINE OF BRISTOL STREET TO A POINT OF CUSP WITH A CURVE, SAID CURVE BEING CONCAVE WESTERLY AND HAVING A RADIUS OF 2000.00 FEET, SAID POINT OF CUSP BEING THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY ALONG SAID CURVE 223.68 FEET THROUGH A CENTRAL ANGLE OF 6°24'29" TO A POINT OF REVERSE CURVATURE, SAID REVERSE CURVE BEING CONCAVE EASTERLY AND HAVING A RADIUS OF 2000.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE 223.63 FEET THROUGH A CENTRAL ANGLE OF 6°24'23'; THENCE, SOUTH 1°31'47" WEST, 360.94 FEET TO THE SOUTHERLY TERMINUS THEREOF; HEREINABOVE DESCRIBED PARCEL CONTAINING AN AREA OF 20,293 SQUARE FEET, MORE OR LESS; SUBJECT TO COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS, AND RIGHTS OF WAY OF RECORD, IF ANY; ALL SHOWN ON EXHIBIT `B', ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. THIS DESCRIPTION WAS PREPARED BY JOHNSON- FRANK & ASSOCIATES, INC., UNDER THE DIRECT v� SUPERVISION OF ANTHONY C. CUOMO, PLS 6042, ON AUGUST 16TH, 2017. Anthony CUOMO 42 �� OF CAOS 9A ORIGINAL N. BRISTOL ST., M.M. 39/6 B PROPOSED N. BRISTOL ST. C 9th. ST., M.M. 39/6. Noel I za � oN CL J � ll p-- 0 0� I J aW �, \�• ti11, �5 1 " = 40'J00 O __y V N84'12'25°Wo Q --(RAD.) \\ I ^" N893258"W 193.55' N824,2 0"W /I 24.21' + IT' j o RW N I� O op d. 0 u hl J 1 N V. v J9.02'— 64.01' 0 2016-601396, O.R. M I o p APN 405-262-23 "' o o Ln 133.48' soln"Mi i o0 2016-605606, O.R. N o APN 405-262-22 i J O Z d' —� 135.41' N893258"W 139.41' �W 2016-256270, O.R. 7 a , o II APN 405-262-21 "' h N8933'00"W 204.05' 2 AL2 140.04' L1 N0131'47"E 1.45' L2 N01'31'47"E 0.24' L3 N0131'47"E 360.94' soln"Mi EXHIBIT "B" ESCROW HOLDERS GENERAL PROVISIONS 1. All funds received in this escrow shall be deposited in a separate escrow fund account or accounts of Commonwealth Land Title Company (for the benefit of the parties hereto) with one or more state or national banks duly qualified to do business in the State of California, so that each such account shall be fully insured at all times by the Federal Deposit Insurance Corporation, to the maximum extent permitted by law. All disbursements shall be made by check of Commonwealth Land Title Company. 2. Escrow Holder is authorized to prepare, obtain, record and deliver the necessary instruments to carry out the terms and conditions of this escrow and to order to be issued at close of escrow the policy of title insurance as called for in these instructions. "Close of Escrow" shall mean the date instruments are recorded, unless otherwise specified by the parties. 3. All adjustments and prorations shall be made on the basis of a 365 -day year and the actual number of days in the month in which the close of escrow occurs. 4. If applicable, Escrow Holder is instructed to assign any fire and casualty insurance policy delivered to you and to secure any endorsements required in the performance of these instructions. Escrow Holder may assume that said policy is in full force and effect and that all premiums due have been paid. 5. Escrow Holder shall have no responsibility of notifying any of the parties to this escrow of any sale, resale, loan, exchange or other transaction involving any property herein described or of any profit realized by any person, firm or corporation in connection therewith, regardless of the fact that such transaction(s) may be handled by you in this escrow or in another escrow. 6. No notice, demand or change of instruction shall be of any effect in this escrow unless given in writing by all parties affected thereby and except as otherwise specifically provided in the Agreement to which these General Provisions are attached. 7. If the conditions of this escrow have not been complied with at the time herein provided, Escrow Holder is nevertheless to complete the same as soon as the conditions (except as to time) have been complied with, unless any party hereto has made written demand upon you for the return of money and instruments deposited by it. 8. Unless the Agreement otherwise provides or unless otherwise instructed by either Buyer or Seller, Escrow Holder is authorized to furnish copies of these instructions, any supplements or amendments thereto, notices of cancellation and closing statements to the attorneys, real estate broker(s) and lender(s), if any, named in this escrow. 17 9. Any funds abandoned or remaining unclaimed, after good faith efforts have been made by the Escrow Holder to return same to the party(ies) entitled thereto, shall be assessed a holding fee of $50.00 annually. 10. All documents, closing statements, and balances due the parties to this escrow are to be wire transferred to said parties pursuant to separate wire transfer instructions to be delivered to escrow, or if no such separate wire transfer instructions are given to escrow, by Priority U.S. Mail or FEDEX at the addresses set forth in the Agreement of the parties for notices, unless otherwise instructed. 11. Notwithstanding the foregoing, if Escrow Holder is also acting as Title Company under the Agreement, nothing set forth in these General Provisions shall limit any liability set forth in the Title Policy(les) provided in the Agreement. 12. For purposes of complying with Internal Revenue Code Section 6045(e), as amended effective January 1, 1991, escrow holder is hereby designated as the "person responsible for closing the transaction" and also as the "reporting person," for purposes of filing any information returns with the Internal Revenue Service concerning this transaction, as required by law. 1 13. Escrow Holder shall assist the parties in obtaining a waiver of withholding from the Franchise Tax Board with respect to the transactions contemplated by the Agreement in accordance with Section 18662 of the Revenue and Taxation Code of California. 14. Escrow Holder shall assist the parties in complying with the provisions of Internal Revenue Code Section 1445 (FIRPTA withholding). W;