HomeMy WebLinkAbout25I - AGMT PROPERTY PURCHASE WARNER PROJREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JANUARY 15, 2019
TITLE:
APPROVE PURCHASE AGREEMENTS
FOR REAL PROPERTY ACQUISITIONS
FOR WARNER AVENUE IMPROVEMENTS
PHASE 1 (PROJECT NO. 14-6802)
(NON -GENERAL FUND)
(STRATEGIC PLAN NOS. 6, 1G; 3,2C)
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RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15' Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute Purchase Agreements for the real
property full acquisition and goodwill (if any) with the property owners listed below, subject to
nonsubstantive changes approved by the City Manager and City Attorney:
No. Property Owner Property commonly Acquisition Amount
known as / location Type
1. Tesoro Refining 2245 S. Main St. Full $2,750,000
(APN 403-141-08)
2. Maria Josefa Pena 402 E. Warner Ave. Full $490,000
(APN 016-035-01)
3. Delia Castillo 2246 S. Orange Ave. Full $468,000
(APN 403-142-17)
Total $3,708,000
DISCUSSION
Warner Avenue is classified as an east -west major arterial in the City's General Plan Circulation
Element and the County of Orange Master Plan of Arterial Highways. Improving the one -mile
segment of Warner Avenue from Main Street to Wright Street has been a long-term priority project
that is being constructed in several phases. Improvements include widening from a four -lane
roadway to a six -lane arterial to address safety issues and provide adequate vehicular capacity;
and installing parkway, raised median landscape, storm drain, protected bike lanes, sound walls,
street lights, and traffic signals. The City is acquiring properties for the development of Phase 1,
bounded by Main Street and Oak Street. Construction is anticipated to begin in spring 2019.
The property acquisitions are necessary to accommodate the street improvements for Phase 1
(Exhibit 1 -Location Map). The purchase offers for 402 E. Warner and 2245 S. Main were
determined based on the appraised values prepared by a California State -licensed appraiser and
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Purchase Agreement for Real Property Acquisitions Warner Avenue Improvements Phase 1
January 15, 2019
Page 2
were accepted by the property owners. The compensation amounts listed above are incorporated
in the attached agreements (Exhibits 2 and 3).
A Purchase Agreement for 2246 S. Orange (APN 403-142-17) was previously approved by
Council on March 20, 2018, in the amount of $442,000. Unbeknownst to City at the time, the
property owner was upside down on their mortgage and owed $528,500, or $86,500 more than
the appraised value of property. Following negotiations with the bank to defray this difference, a
settlement of $468,000 is proposed as shown in the attached agreement (Exhibit 4), or $26,000
above the previous offer. If the proposed Purchase Agreement is not approved, the City could be
liable for the full difference owed on the property or would have to pursue eminent domain at an
additional cost of $75,000 to $100,000.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #6 — Community Facilities &
Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City
assets), Strategy G (develop and implement the City's Capital Improvement Program in
coordination with the Community Investment and Deferred Maintenance Plans).
Approval of this item also supports the City's efforts to meet Goal #3 — Economic Development,
Objective #2 (create new opportunities for business/job growth and encourage private
development through new General Plan and Zoning Ordinance policies), Strategy C (support
business development and job growth along transit corridors through the completion of critical
transit plans/projects).
ENVIRONMENTAL IMPACT
On September 1, 2015, City Council approved the Warner Avenue Final Environmental Impact
Statement (SCH No. 2012101004).
FISCAL IMPACT
Funds in the amount of $3,708,000 are available in the Warner Avenue Improvements Project
(No. 14-6802) for expenditure in FY 2018-19: $2,781,000 in the Measure M2 Competitive Street
Fund (Account No. 03217663-66100) and $927,000 in the Transportation System Improvement
Area B end (Account No. 99217950-66100), subject to nonsubstantive changes.
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Executive Pirector
Public Wo*s Agency
APPROVED AS TO FUNDS AND ACCOUNTS:
Kathryn Downs, CPA Ar �ry
Executive Director
Finance and Management Services Agency
Exhibits: 1. Location Map
2. Purchase Agreement — APN 403-141-08
3. Purchase Agreement — APN 016-035-01
4. Purchase Agreement — APN 403-142-17
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251-4
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL
ESCROW INSTRUCTIONS (hereinafter "PSA" or "Agreement"), dated January 9, 2019 for purposes of
reference only and entered into effective as of the date of the last signature below (the "Effective Date"), is 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 "City" or "Buyer"), and Tesoro Refining & Marketing_
.Company LLC,'a Delaware limited liability company (hereinafter "Seller"). Buyer and Seller are each a "Party"
to this PSA, and collectively are the "Parties" to this PSA.
THEREFORE, for and in consideration of the mutual promises, covenants and agreements set forth herein,
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 commonly known as -2245 South Main Street; Santa Ana,
California, having Assessor's Parcel Number 403 -141 -08; -and legally described as set forth in Exhibit "A"
attached hereto (hereinafter, the "Real Property").
Said purchase and sale of the 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 the Real Property to City by Grant Deed, in the form
attached hereto as Exhibit "B", at the office of Commonwealth Title Company at 4100 Newport Place Drive,
Suite 120, Newport Beach, California upon the close of escrow as defined in Section 4 below.
2. Title to be Conveyed. Seller agrees that, except as may be otherwise expressly provided in this PSA
(including in Section 15 below), the Real Property shall be conveyed by Seller to City free and clear of any and
all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations,
encumbrances (whether monetary or non -monetary, general or specific, including any and all leasehold
interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller further
agrees that acceptance by City of the Grant Deed to the 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, except as the same is disclosed in or allowed by this PSA, 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 the Real Property
to City, within the time and at the place hereinabove specified for said conveyance of the 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 Two Million Seven Hundred Fifty Thousand and no/100 Dollars ($2,750,000.00)
insuring the title of the City to the Real Property is, except as otherwise allowed by or provided for in this PSA,
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. Acceptance by City of any such policy of insurance,
whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver
by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of
action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title
or to provide title insurance as required in this Agreement.
4. Escrow. City agrees to open an escrow at the office of Commonwealth Title Company, 4100 Newport
Place Drive, Suite 120, Newport Beach, California, (the "Escrow Agent") within five (5) days from and after the
Effective Date of 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
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EXHIBIT 2
251-5
the escrow. Escrow shall close on March 15, 2019 or as soon thereafter as possible. If escrow is not in a
condition to close by such date, and failure to close is due to unforeseen conditions of title or interest of third
parties in the Real 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 pursuant to
this Agreement. Thereupon, all obligations and liabilities of the Parties under this Agreement shall cease and
terminate, except to the extent this Agreement provides that any obligations and/or liabilities shall survive any
termination of this Agreement or cancellation of escrow. 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 Escrow Provisions described in Exhibit "C" 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 to Escrow Agent, 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 costs of any and all
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 the 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 this Agreement.
5. Property Taxes. Real property taxes, if any, on the Real Property for the fiscal year within which the
Real Property is conveyed to City that 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 the Real Property for said fiscal year which have been paid prior
to the date the Grant Deed conveying the Real Property to City is recorded which is allocable to that portion of
the fiscal year after the date the Grant Deed conveying the 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 Real 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 the 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 the 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 the Real Property and all fixtures and improvements pertaining to the realty
(as so defined in Code of Civil Procedure Section 1263.205), and severance damages (but not for loss of goodwill),
the total sum of Two Million Seven Hundred Fifty Thousand and no/100 Dollars ($2,750,000.00). City
agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days after the
Effective Date, and the Escrow Agent is hereby authorized to pay the same to Seller upon the close of escrow.
7. Possession. Seller agrees to deliver to City, on the date the Grant Deed conveying the Real Property
to City is recorded, quiet and peaceful possession of said Real Property, subject to the following provisions of
this Section 7. Seller is hereby granted an exclusive license, at no fee, charge or expense, for sixty (60) days,
commencing upon the date of closing of escrow ("License Term"), to remove (or may otherwise cause the
removal of by third parties) from the Real Property all merchandise, inventory, equipment (including, without
limitation, all dispensers), personal property, trademarks, logos, removable trade fixtures, fixtures, structures,
buildings and improvements to the realty (as so defined in Code of Civil Procedure Section 1263.205) (including,
without limitation, all underground storage tanks and product lines) (all of the foregoing being collectively referred
to as `Items"), that Seller desires to remove (or be removed) from the Real Property. During the License Term,
Page 2 of 18
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(i) the City shall not damage, destroy or remove any Items from or at the Real Property, and (ii) Seller may
fence the Real Property, lock structures at the Real Property, and take any and all other actions reasonably
necessary to secure the Items against theft, vandalism or damage. Seller shall not have any obligation to
compensate the City for any Items removed by or at the direction of Seller (whether removed pursuant to this
Section 7 or removed prior to the close of escrow). There shall not be an reduction in or offset against the
$2,750,000 purchase price based upon or because of Seller's exercise of such right to remove the Items (even
for equipment [including dispensers], fixtures, structures, buildings and improvements to the realty [including
underground storage tanks and product lines] removed from the Real Property), it being understood and agreed
that, inter alia, the City benefits from such removal. Furthermore, the City shall not claim it has any interest,
right or title in or to any Items (whether removed pursuant to this Section 7 or removed prior to the close of
escrow), and shall execute a quitclaim deed evidencing the same if so requested by Seller. Seller shall
indemnify, defend, and hold City (and its officers, managers, representatives, agents, and employees) harmless
from and against any and all liabilities, claims, suits, judgments, actions, investigations, proceedings, costs,
and expenses (including attorneys' fees and costs) arising out of any death, bodily injury, or personal property
damage caused by any act and/or omission by Seller or its designated representatives at the Real Property in
connection with Seller's exercise of its rights under this Section 7.
If Seller does not vacate the Real Property by the end of the License Term, 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 Real Property in favor of the City, and in such event 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.
8. Rental and Occupancy By Seller. Seller warrants that, except for the Retail Facility Lease between
Seller and Awans Enterprises, Inc. as of the Effective Date, there are no oral or written leases on all or any
portion of the Real Property. Seller agrees not to extend the term of its Retail Facility Lease with Awans
Enterprises, Inc. beyond February 28, 2019, or enter into a new lease agreement with Awans Enterprises, Inc.
with respect to the Real Property. Seller hereby agrees not to rent any units on the Real Property which are
vacant as of the Effective Date, or which may be vacated by present occupants prior to close of escrow. In
return, the City agrees to reimburse Seller for lost rentals incurred by keeping such units vacant through the
close of escrow.
9. Waivers. The waiver by either the City or Seller of any breach of any covenant or agreement herein
contained on the part of the other Party shall not be deemed or held to be a waiver of any subsequent or other
breach of said covenant or agreement by the other Party nor a waiver of any breach of any other covenants or
agreements contained herein by the other Party.
10. 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.
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. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation
at fair market value for the Real Property and includes payment for fixtures and improvements pertaining to the
realty (as so defined in Code of Civil Procedure Section 1263.205), and severance damages.
13. Acknowledgment of Full Benefits and Release.
A. By execution of this Agreement, Seller, on behalf of itself, its heirs, executors, administrators,
successors and assigns, hereby acknowledges that this Agreement provides full payment for the
acquisition of the Real Property by Buyer, and, except to the extent based upon a breach of this
Agreement, Seller hereby expressly and unconditionally waives any claim for compensation for injury
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to the remainder ("severance damages'); precondemnation damages; claims for inverse condemnation;
damage to or loss of improvements pertaining to the realty (as so defined in Code of Civil Procedure
Section 1263.205); damage to or loss of machinery, fixtures, inventory, equipment and/or personal
property; any right to repurchase, leaseback from Seller, or receive any financial gain from, the sale of
any portion of the Real 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
Sellers pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and
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 by Seller (except for claims for loss of
goodwill, and except for any breach of this Agreement) relating to or in connection with the acquisition
of the Real Property by Buyer. This release shall survive the close of escrow.
This Agreement arose out of Buyer's efforts to acquire the Real Property through its municipal authority.
Seller, on behalf of itself, its 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 Seller, or may be sustained by Seller, as a result of Buyer's efforts
to acquire the Real Property or to construct the works of improvement thereon, or any preliminary steps
thereto (except to the extent based upon breach of this Agreement by the City). This Agreement does
not, and shall not be construed to, require Seller to indemnify Buyer for damages which may arise as a
result of Buyer's efforts to construct improvements on the Real Property. This acknowledgment and
release shall survive the close of escrow.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988,
in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Seller is 301
East Ocean, Suite 1600, Long Beach, CA 90802-4692.
15. Exceptions. City agrees to accept title to the Real Property subject to the following: (a) those matters
set forth in Section B of Schedule B of the July 7, 2017 Preliminary Title Report for the Real Property prepared
by Commonwealth Land Title Company (File #09204338), (b) any other matters of record as of the Effective
Date, and (c) the provisions in this PSA (including Exhibits hereto).
16. Entire A-greement. It is mutually agreed that the Parties hereto have herein set forth the whole of their
Agreement. Except for breach of this Agreement, and except for claims for loss of business (goodwill),
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 the Real Property by City.
17. Definition of Hazardous Material. 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. §1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation
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and Recovery Act, 42 U.S.C. §§ 6901 et seg. (42 U.S.C. §6903) 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. §9601 at sem. (42 U.S.C. §9601).
18. Disclosure of Hazardous Materials On. At, Under and Near Real Property. Pursuant to, inter alla,
California Health & Safety Code Section 25359.7, Seller hereby advises Buyer that (a) a release of Hazardous
Materials is located on or beneath the Real Property, (b) there is ongoing assessment, remediation and
monitoring of Hazardous Materials on, at, under and near the Real Property, and (c) additional information
regarding (a) and (b) may be found in Geotracker (File 5147).
19. Buyer's Covenant Regarding Soil Containing or Impacted with Soil. This Section 19 only applies
if escrow closes. If Buyer or its contractors or consultants encounter or discover any soil containing or impacted
with Hazardous Materials on, at, under or adjacent to the Real Property as part of any activities by Buyer or its
contractors or consultants on, at, under or adjacent to the Real Property, Buyer, at its sole cost and expense,
shall properly sample, excavate and dispose of the same in accordance with all applicable laws and regulations.
Seller shall not be identified as a generator on any manifests for any soil disposed of by the Buyer. Except for
what is expressly set forth in the preceding sentence, nothing in this Section 19 imposes upon Buyer any other
duties to assess, remediate and/or monitor any Hazardous Materials on, at, under or adjacent to the Real
Property.
20. Seller's Covenant to Remediate & Indemnity. Should escrow close, then Seller, subject to Buyer's
duties and obligations under Section 19, agrees to continue to assess, remediate and monitor any and all
Hazardous Substances that existed on, at or under the Real Property as of the Effective Date to levels mutually
agreed upon by and between Seller and any governmental agency with primary jurisdiction over the same, and
obtain a No Further Action letter, or its functional equivalent, from the governmental agency with primary
responsibility for issuing the same, to the extent a No Further Action letter has not been obtained by the close
of escrow. Furthermore, should escrow close, then Seller also agrees to indemnify, defend and hold the City
harmless from and against any claim, action, suit or proceeding by any governmental agency against the City,
and any resulting loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including,
without limitation, attorneys' fees) incurred by the City as a result of (and after the filing of) any such claim,
action, suit or proceeding, that is based upon Seller's failure, after the Effective Date, to comply with any order
or directive to Seller by a governmental agency concerning the assessment, remediation and/or monitoring of
any Hazardous Materials that existed on, at or under the Real Property as of the Effective Date, excepting only
Buyer's obligation, as set forth in Section 19 hereof, to sample, excavate and dispose of any soil containing or
impacted with Hazardous Materials on, at or under the Property. For the avoidance of doubt, it is agreed and
understood that all of Seller's duties and obligations under this Section 20 are subject and subordinate to
Buyer's duties and obligations under Section 19, and in the event of any conflict between Section 19 and
Section 20, then Section 19 shall control.
21. Access Agreement. Upon full execution of this PSA, both Parties shall execute the Access Agreement
in the form attached hereto as Exhibit "D" and deliver an executed original of the same to the Escrow Agent.
Closing of escrow shall not occur unless the Escrow Agent has a fully -executed copy of the Access Agreement
(in the form attached as Exhibit "D") in its possession. Upon closing occurring, the Escrow Agent shall provide
each Party with a fully -executed copy of the Access Agreement.
22. Modification and Amendment. This PSA may not be modified or amended except in writing signed
by the Seller and City that clearly evidences an intent to modify or amend this PSA.
23. Partial Invalidity. Any provision of this PSA that is adjudicated to be unenforceable or invalid shall
have no effect, but all the Any
provisions of this PSA shall remain in full force.
24. 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.
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25. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the
State of California.
26. 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.
27. 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, so long as doing so will not materially the Party's rights, benefits, duties or obligations
under this PSA.
29. 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.
30. Authority to Execute Agreement. Each undersigned represents and warrants that he or she has the
power, authority and right to bind the Party for whom they are signing this PSA to each of the terms of this PSA.
31. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if
fully set forth in the body of this PSA.
[Signature Page(s) Follows]
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IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the dates set forth below.
SELLER: Tesoro Refining & Marketing Company LLC, a Delaware limited liability company
By:
Its:
City/Buyer
City of Santa Ana
Raul Godinez II
City Manager
Attest:
Maria D. Huizar
Clerk of the Council
Approved as to Form:
� 7?L.. T.L
bfin M. Funk
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Fuad S. Sweiss, PE, PLS
Executive Director
Public Works Agency
Date:
Date:
Date:
2019
2019
2019
Date: January 9 2019
Date:
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251-11
2019
EXHIBIT "A"
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
LOTS 21, 22, 23, 24 AND THE SOUTHERLY 7 FEET OF LOT 20, IN BLOCK "B" OF TRACT NO.
638, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
THEREOF RECORDED IN BOOK 19, PAGE 17 OF MISCELLANEOUS MAPS, RECORDS OF SAID
ORANGE COUNTY.
Assessor's Parcel Number: 403-141-08
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When recorded, please mail this
instrument and tax statements to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
THE CITY OF SANTA ANA PER
GOVERNMENT CODE SECTION 6103.
Exhibit "B"
Form of Grant Deed
SPACE ABOVE THIS LINE FOR RECORDER'S USE
CANCEL APPROVED Al TO APPROVED BY DESCRBITON DESCRIPTION AP. NUMBER RM MAP PROTECT
TAXES FORM BY ATTY. DB TOR WUTTENBY CHECKED -0.K. 403.141-05 NUMBER NUMBER
X
2245 South Mein Street, Santa Ana, CA 92707 DEED NUMBER
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, TESORO REFINING &
MARKETING COMPANY LLC, a Delaware limited liability company ("Grantor"), does hereby grant to the CITY
OF SANTA ANA, a charter City and municipal corporation duly organized under the Constitution and laws of
the State of California ("Grantee"), for public roadway purposes, all that real property in the City of Santa Ana,
Orange County, State of California, commonly known as 2245 South Main Street, and more particularly
described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
This conveyance is made by Grantor and accepted by Grantee subject to all matters of record, including but
not limited to (a) the Environmental Restrictions set forth in that certain Grant Deed and Environmental
Restrictions recorded on May 31, 2013, in the Official Records of Orange County as Document
#2013000331571, as well as (b) the Additional Environmental Restrictions set forth in Exhibit "B" attached
hereto and by this reference made a part hereof.
Dated :
Dated :
Grantor: Tesoro Refining & Marketing Company LLC
By:
Its:
Grantee: City of Santa Ana
an
Its:
Page 9 of 18
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Exhibit "A" to Grant Deed
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
LOTS 21, 22, 23, 24 AND THE SOUTHERLY 7 FEET OF LOT 20, IN BLOCK "B" OF TRACT NO.
638, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
THEREOF RECORDED IN BOOK 19, PAGE 17 OF MISCELLANEOUS MAPS, RECORDS OF SAID
ORANGE COUNTY.
Assessor's Parcel Number: 403-141-08
Page 10 of 18
251-14
Exhibit "B" to Grant Deed
Additional Environmental Restrictions
1. These Additional Environmental Restrictions shall be binding on Grantee and all successive owners of any
fee interest in the real property described in Exhibit "A" to this Grant Deed (said real property being hereinafter
referred to as the "Real Property'). Every person who now or hereafter owns, occupies or acquires any right,
title or interest in or to the Real Property is and shall be conclusively deemed to have consented and agreed to
these Additional Environmental Restrictions, whether or not any reference to this Grant Deed or these
Additional Environmental Restrictions is contained in the instrument by which such person acquires an interest
in the Real Property.
2. So long as any of Grantor's environmental monitoring and/or remediation wells exist at, on or within 100 feet
of the Real Property, no such wells shall not be destroyed, damaged, covered, moved, removed, closed or
capped, except by Grantor or one of its corporate successors -in -interest (or a contractor undertaking the same
at the request of Grantor or one of its corporate successors -in -interest).
Page 11 of 18
251-15
EXHIBIT "C" (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.
Page 12 of 18
251-16
Exhibit "D"
Access Agreement
This Access Agreement ("Access Agreement") is made and effective as of the last date of signature
below ("Effective Date") and is by and between Tesoro Refining & Marketing Company LLC, a Delaware limited
liability company ("Licensee'), and the City of Santa Ana ("Licensor"), with respect to certain real property
commonly known as 2245 S. Main Street, Santa Ana, California as more particularly described on Exhibit "A"
attached to this Access Agreement and incorporated herein by reference ("Propert '). Licensor and Licensee
are hereafter sometimes singularly referred to as a "Part
Y and collectively referred to as the "Parties."
Recitals
A. Whereas, the Parties are parties to a Purchase and Sale Agreement for Acquisition of Real
Property and Bilateral Escrow Instructions ("Purchase and Sale Agreement") regarding the Property;
B. Whereas, one of the conditions to closing escrow under the Purchase and Sale Agreement is
the full execution of this Access Agreement.
Terms & Conditions
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee
hereby agree as follows:
1. Condition Precedent. This Access Agreement shall not take effect, nor have any force or effect,
unless and until escrow closes under the Purchase and Sale Agreement and the Licensor acquires Licensee's
fee interest in the Property as a result of the same.
2. Grant of License. Licensor, for itself and all successors -in -interest to its interest in the Property,
and on behalf of all present and future tenants and occupants of the Property, hereby grants to Licensee and
Licensee's parent, affiliated and subsidiary companies, and all of their employees, consultants, contractors,
representatives, and agents (collectively, "Designated Representatives"), as well as any of their assigns, an
irrevocable, non-exclusive license ("License") for the Term (as defined below), at no charge or rent, to access
and enter onto the Property and perform any and all Corrective Action(s) (as that term is defined below) on,
under, and at the Property that Licensee desires or is required to undertake or cause at the Property. Nothing
in this Access Agreement shall be construed as requiring or obligating Licensee to undertake or cause any
Corrective Action. The "Term" of this Access Agreement commences on the date Licensor first acquires fee
title to the Property from Licensee and continues until one (1) year after Licensee obtains a "No Further Action"
letter from the governmental agency with jurisdiction for issuing the same with respect to the Property.
3. Notice. Except in the event of an emergency, and except for any routine, "turnkey' activities,
Licensee (or Licensee's Designated Representatives) will provide Licensor a minimum of 48 hours' notice prior
to entering the Property via telephone, electronic mail, or facsimile transmission using the telephone number,
electronic mail address or facsimile number designated by Licensor below.
4. Performance of Corrective Actions. Licensee shall perform any Corrective Actions (defined
herein) it performs at the Property pursuant to this Access Agreement as follows:
(a) Licensee shall conduct all Corrective Action in a manner so as to minimize any
inconvenience or disruption to any business activities at the Property. Subject to the indemnity
granted below for death, bodily injury, and property damage, Licensee and its Designated
Representatives shall not be liable or responsible for any direct, special, consequential or
incidental economic damages or harm resulting from its exercise of the License granted
Page 13 of 18
251-17
hereunder, including, but not limited to, any lost profits, lost rents, lost income, lost sales,
construction delays, and any other costs, expenses, and economic damages; and Licensor
hereby waives, releases, acquits, and discharges the Licensee and its Designated
Representatives from the same.
(b) For all activities at the Property pursuant to the License granted herein, Licensee shall
acquire all applicable permits and other authorizations required by any Agency (defined herein)
for any Corrective Action under any applicable laws and regulations.
(c) Licensee shall not allow any lien to encumber the Property as a result of any of its
activities at the Property pursuant to this Access Agreement, and Licensee agrees to cause the
removal or release of any such lien within thirty (30) days after notice thereof.
(d) Licensee shall keep the Licensor informed of the progress of all Corrective Action
at the Property conducted pursuant to the License granted herein by providing Licensor with
copies of any and all reports and written communications to any Agency regarding such
Corrective Action.
(e) Licensee will properly maintain and repair any and all equipment and improvements
installed and/or used at the Property pursuant to the License granted herein, and will also keep
all portions of the Property where any such Corrective Action occurs in good, clean, and sanitary
condition. Licensee will also promptly repair, at Licensee's sole cost and expense, any damage
to the Property caused by its activities pursuant to the License granted herein. Upon completion
of its activities at the Property pursuant to the License granted herein, Licensee will restore the
Property to the condition in which the Property existed prior to Licensee's activities under the
License granted herein, including, but not limited to, removing any equipment and improvements
it installed and/or used at the Property (except that with respect to any monitoring wells installed
at the Property, Licensee may close or cap such wells in compliance with all applicable laws
and regulations).
5. Notice. Except for notice of access given in accordance with Section 3, all notices, demands,
and requests required or given by a Party pursuant to this Access Agreement shall be in writing, and shall be
deemed delivered on the earlier of (i) the posting of the notice, designated for delivery via United States Postal
Service, 'registered or certified mail, return receipt requested, or United States Priority Mail with delivery
confirmation, addressed to the addressee at its address set forth below or at such other address as such Party
may have previously specified by notice delivered in accordance with this section, or (ii) actual receipt by the
addressee:
If to Licensee: Tesoro Refining & Marketing Company LLC
301 Ocean, Suite 1600
Long Beach, California 90802
Attn: Real Estate Department
With a copy to:
Tesoro Refining & Marketing Company LLC
19100 Ridgewood Parkway
San Antonio, Texas 78259
Attn: Legal Department (Real Estate)
If to Licensor: City of Santa Ana.
20 Civic Center Plaza
Santa Ana, CA 92701
Attn: Executive Director, Public Works Agency
Page 14 of 18
251-18
With a copy to:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Attn: Clerk of the Council
6. Governing Law: Venue. This Access Agreement shall be governed by and construed in
accordance with the laws of the State of California.
7. Successors and Assigns. This Access Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the Parties, including, but not limited to, any successors -in -interest
to Licensor's interest in the Property. Licensor shall provide prompt notice to Licensee of any assignment of
this Access Agreement. Licensor represents, warrants, and covenants that it will not sell or transfer its interest
in the Property unless the buyer or transferee agrees to an assignment of this Access Agreement to such buyer
or transferee without modification, amendment, or alteration. In the event of any such assignment, Licensor
shall not be released from any obligations or duties hereunder that arise or accrue after any assignment.
Furthermore, Licensor shall not lease the Property after the Effective Date without disclosing this Access
Agreement to the tenant, obtaining a written acknowledgement from the tenant that it has read and understands
this Access Agreement, and securing written confirmation from the tenant that it also agrees to be bound by all
terms and provisions of this Access Agreement that are applicable to the Licensor (which shall not in any way
release Licensor from any of its duties and obligations under this Access Agreement).
8. Definitions.
(a) Agency. The term "A enc 'shall mean all local, state, and federal governmental
agencies with jurisdiction over the Property.
(b) Corrective Action(s). The term "Corrective Action' or "Corrective Actions" shall
mean any assessment, corrective, remedial, removal, and monitoring activities of any petroleum
products, toxic substances, hazardous wastes, hazardous materials, hazardous substances and the
like on, under, and/or at the Property, including, but not limited to (a) the placement, installation,
retention, operation, use, repair, replacement, maintenance, and removal of equipment, tools, and
related facilities; (b) the temporary storage of investigation or remediation -derived wastes; (c) sampling,
testing, monitoring, injecting, inspection, equipment operation, maintenance, and other investigative
and remedial work; (d) the installation, drilling, monitoring, maintenance, and abandonment of wells,
trenches, and other equipment used to facilitate any Corrective Action; (e) treatment, including
landfarming of soils; and (f) other related environmental activities as may be desired by Licensee.
9. Counterparts. This Access Agreement may be executed in counterparts, which counterparts
shall constitute a single, integrated agreement, and may be delivered by facsimile.
10. Modification: Waiver. This Access Agreement cannot be modified, amended or altered, or any
of the terms hereof waived, except by an instrument in writing (referring specifically to an intent to modify,
amend, or alter this Access Agreement) signed by the Party against whom enforcement of the modification,
amendment, alteration or waiver is sought.
11. Recordinq. This Access Agreement shall not be recorded. However, at the option of Licensee,
a memorandum of this Access Agreement may be recorded by Licensee in the office of the county recorder in
which the Property is located and/or at such other appropriate location or place as may be determined by
Licensee. Licensor agrees to promptly execute in recordable form any such memorandum requested by
Licensee, provided that the form and substance thereof is acceptable to Licensor in its reasonable discretion.
12. No Admission of Liability or Responsibility. By entering into this Access Agreement, Licensee
makes no admission of liability or responsibility regarding the environmental condition of the Property, and
Page 15 of 18
251-19
neither this Access Agreement nor any acts performed pursuant thereto may be introduced into evidence to
establish such liability or responsibility.
13. Severability. If one or more provisions of this Access Agreement are held to be unenforceable
under applicable law, such provision(s) shall be excluded from this Access Agreement, and the balance of the
Access Agreement shall be interpreted as if such provision(s) was/were so excluded, and shall be enforceable
in accordance with its remaining terms.
14. Entire Agreement: No Amendment to Purchase and Sale Agreement. There are no oral
representations, stipulations or warranties, express or implied, with respect to the subject matter of this Access
Agreement which are not fully set forth herein. Except for all of the terms and conditions of the Purchase and
Sale Agreement and any other agreements and documents executed pursuant thereto (none of which are
amended, modified, or deleted by this Access Agreement), all prior oral or written or contemporaneous
promises, representations, agreements or understandings, express or implied, regarding the subject matter of
this Access Agreement are expressly merged herein and superseded hereby.
15. Headings. The headings in this Access Agreement are intended solely for convenience of
reference and shall not in any manner amplify, limit, modify or otherwise affect the interpretation of any provision
of this Access Agreement; and the masculine, feminine or gender neutral, as well as the singular and plural,
shall be deemed to include the other gender and numbers whenever the context so indicates or requires.
16. Further Assurances. Licensor and Licensee agree to execute and deliver such other documents
and to take such other actions as may reasonably be required to effectuate the purpose and subject matter of
this Access Agreement.
17. Waiver. No purported waiver by either Party hereto of any term or provision of this Access
Agreement or of any breach thereof shall be deemed to be a waiver of such provision or breach unless such
waiver is in writing and signed by the Party making such waiver. No such waiver shall be deemed to be a
subsequent waiver of such provision or a waiver of any subsequent breach of the same or any other provision
hereof.
18. No Joint Venture. The Parties acknowledge and agree that this Access Agreement shall not be
construed to create a partnership, joint venture, employment or agency relationship between the Parties.
19. Indemnification. Licensee shall indemnify, defend, and hold Licensor (and its officers,
managers, representatives, agents, and employees) harmless from and against any and all liabilities, claims,
suits, judgments, actions, investigations, proceedings, costs, and expenses (including attorneys' fees and
costs) arising out of any death, bodily injury, or property damage caused by any act and/or omission by
Licensee or its Designated Representatives at the Property in connection with Licensee's exercise of its rights
under this Access Agreement.
IN WITNESS WHEREOF, the Parties have duly entered into this Access Agreement on the dates set
forth below.
Licensee: Tesoro Refining & Marketing Company LLC
Licensor: City of Santa Ana
Raul Godinez II
City Manager
Date: _ .2019
Date: .2019
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251-20
Attest:
Maria D. Huizar
Clerk of the Council
Approved as to Form:
John M. Funk
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Fuad S. Sweiss, PE, PLS
Executive Director
Public Works Agency
Date: 2019
Date: 2019
Date: 2019
Page 17 of 18
251-21
Exhibit "A" to Access Agreement
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
LOTS 21, 22, 23, 24 AND THE SOUTHERLY 7 FEET OF LOT 20, IN BLOCK "B" OF TRACT NO.
638, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP
THEREOF RECORDED IN BOOK 19, PAGE 17 OF MISCELLANEOUS MAPS, RECORDS OF SAID
ORANGE COUNTY.
Assessor's Parcel Number: 403-141-08
Page 18 of 18
251-22
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIR Af;IRFFMFNT (hereinafter "PSA"). entered into on 201,
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; Maria:Josefa Pena, a widow
(hereinafteri"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: i
SEE EXHIBIT "A" — Legal Description
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as 402 East Warner Avenue, Santa Ana, CA)
(APN 016-035-01)
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 Drive, 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 15 below. Seller
hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as
provided above. Seller further agrees that acceptance by City of any deed to said real property, with or
without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit,
limitation, encumbrance (whether monetary or non -monetary, .general or specific, and including any and all
leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and
clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City
because of the failure of Seller to convey title as hereinabove provided.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real
property to City, within the time and at the place hereinabove specified for said conveyance of said real
property, a policy of title insurance to be issued by the above mentioned title company, with the City therein
named as the insured, in the amount of Four Hundred Ninety Thousand and no/100 Dollars ($490,000.00).
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. 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.
Exhibit 3
251-23
4. Escrow. City agrees to open an escrow at the office of Commonwealth Title Company, 4100
Newport Place Drive, 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, cast 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, Section 8 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 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 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, fixtures & equipment (improvements pertaining to the
realty), goodwill (if any), and severance damages, the total sum of Four Hundred Ninety Thousand and
no/100 Dollars ($490,000.60). 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;
251-24
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. No later than fourteen days (14) days after close of escrow, 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.
b. If Seller 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 fourteen (14) days after close of escrow.
B. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct
statement of rentals (Seller Estoppel) on a form furnished to Seller by City and deliver same to City within
fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents 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
vacant as of the date that this agreement is executed by seller, or which may be vacated by present
occupants prior to close of escrow. In return, the City agrees to reimburse seller lost rentals incurred by
keeping units vacant through the close of escrow. Seller agrees that any and all Tenant Security Deposits
pertaining to the subject 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 during 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) and Seller agrees to hold City harmless
from all liability from any such leases or agreements. Seller also warrants that there are no oral or written
leases on all or any portion of the subject property exceeding a period of one month.
9. 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.
10. Heirs, Assinns, 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.
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. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation
at fair market value for said real property and includes payment for fixtures & equipment (improvements
pertaining to the realty), goodwill (if any), and severance damages.
251-25
13. 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 thel 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 of goodwill and/or lost profits; loss or impairment of
any "bonus value" attributable to any lease; damage to or loss of improvements pertaining to the
realty; damage to! or loss of machinery, fixtures, inventory, equipment and/or personal property; 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 Sellers
pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and 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. 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.
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 Seller, 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. This Agreement does not, and shall not be construed to, require Seller to
indemnify Buyer for damages which may arise as a result of Buyer's efforts to construct
improvements on the Property.
This acknowledgment and release shall survive the Close of Escrow
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box
1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the
Seller is 402 East Warner Avenue, Santa Ana, CA 92707.
15. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
16. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of
their Agreement. Performance of this 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.
17. 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
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
251-26
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division
20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii)
polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous"
pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated
as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined
as a "hazardous waste" pursuantl to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. S6901 et sec. (42 U.S.C. S6903) or (A) 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 sem. (42 U.S.C. S9601). i
18. 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.
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, 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 last 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.
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 PSA may not be modified or amended except in writing signed
by the Seller and City.
22. 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.
23. 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.
24. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the
State of California.
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25. No Reliance By One Party On The Other. Each party has the option to receive 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.
1 1
26. 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.
i
27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute
and deliver spch 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.
28. 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.
i
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 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.
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as
ff fully set forth in the body of this PSA.
251-28
IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written
above.
SELLER: Maria Josefa Pena, a widow
M ria Josefgena
I
City/Buyer
City of Santa Ana
Raul Godinez II
City Manager
Attest:
Maria D. Huizar
City Clerk
Approved as to Form:
UKA".11i
Jo M. Funk
As istant City Attorney
RECOMMENDED FOR APPROVAL:
Fuad S. Sweiss, PE, PLS
Executive Director
Public Works Agency
Date: �� / , 2018
Date:
201_
Date: 201_
Date: 11-2-6 , 201,
Date:
251-29
201
EXHIBIT "A"
LEGAL DESRIPTION
'THE LAND REFERRED TO HEREIN IS SITUATED IN COUNTY OF ORANGE, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:,
LOT 38 OF TRACT NO, 1575, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 56, PAGES 36 AND 37 OF MISCELLANEOUS
MAPS, RECORDS OF SAID COUNTY.
Assessor's Parcel Number: 016-035-01
251-30
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.
251-31
251-32
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT (hereinafter "PSA"), entered into on 2018,
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,rDelia-Castillo, a married
woman as her sole and separate property (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 "N'— Legal Description i
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as 2246 -South Orange'Avenue, Santa Ana, CA)
(APN 403=142=1.7)
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 Drive, 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 15 below. Seller
hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as
provided above. Seller further agrees that acceptance by City of any deed to said real property, with or
without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit,
limitation, encumbrance (whether monetary or non -monetary, general or specific, and including any and all
leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and
clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City
because of the failure of Seller to convey title as hereinabove provided.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real
property to City, within the time and at the place hereinabove specified for said conveyance of said real
property, a policy of title insurance to be issued by the above mentioned title company, with the City therein
named as the insured, in the amount of Four Hundred Sixty -Eight Thousand and no/100 Dollars
($468,000.00). 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.
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.
EXHIBIT 4
251-33
4. Escrow. City agrees to open an escrow at the office of Commonwealth Title Company, 4100
Newport Place Drive, 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, Section 8 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 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 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, fixtures & equipment (improvements pertaining to the
realty), goodwill (if any),- and severance damages, the total sum of Four Hundred Sixty -Eight Thousand and
no/100 Dollars($468;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,
251-34
c. Delivery to City of the policy of title insurance as hereinabove provided;
d. Recordation of the Deed conveying said real property to City.
1
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. No later than fourteen days (14) days after close of escrow, 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. ,
b. If Seller 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 fourteen (14) days after close of escrow.
S. Rental and .Occupancy By Seller. Seller agrees to execute a complete, current and correct
statement of rentals (Seller Estoppel) on a form furnished to Seller by City and deliver same to City within
fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents 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
vacant as of the date that this agreement is executed by seller, or which may be vacated by present
occupants prior to close of escrow. In return, the City agrees to reimburse seller lost rentals incurred by
keeping units vacant through the close of escrow. Seller agrees that any and all Tenant Security Deposits
pertaining to the subject 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 during 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) and Seller agrees to hold City harmless
from all liability from any such leases or agreements. Seller also warrants that there are no oral or written
leases on all or any portion of the subject property exceeding a period of one month.
S. 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.
10. 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.
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. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation
at fair market value for said real property and Includes payment for fixtures & equipment (improvements
pertaining to the realty), goodwill (if any), and severance damages.
251-35
13. 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 of goodwill and/or lost profits; loss or impairment of
any "bonus value" attributable to any lease; damage to or loss of Improvements pertaining to the
realty; damage to or loss of machinery, fixtures, inventory, equipment and/or personal property; any
right to repurchase, leaseback from Seller, or receive any financial gain from, the sale of any portion
of the Property , or challenge Buyers 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 Sellers
pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and 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. This release shall survive the Close of Escrow.
B. This Agreement arose out of Buyers efforts to acquire the Property through its municipal authority.
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 Seller, or may be sustained by Seller, as a result of
Buyers efforts to acquire the Property or to construct the works of improvement thereon, or any
preliminary steps thereto. This Agreement does not, and shall not be construed to, require Seller to
indemnify Buyer for damages which may arise as a result of Buyers efforts to construct
improvements on the Property.
This acknowledgment and release shall survive the Close of Escrow.
14. Notices The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box
1988, in the City of Santa Ana 92701, County of Orange, State of Califomia. The mailing address of the
Seller is 2246 South Orange Avenue, Santa Ana, CA 92707.
15. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
16. Entire Aareement. 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.
17. Hazardous Waste. Neither Seller nor, to the best of Sellers 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
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
251-36
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25261 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 Califomia Administrative Code, Division 4, Chapter 20, (ix) designated
as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. S6901 et seg. (42 U.S.C. S5903) 4 (A) defined as a "hazardous substances" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.&C.
S9601 et seg. (42 U.S.C. S9601). i
18. 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 Act, 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.
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, 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.
20. Continciency. 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 PSA may not be modified or amended except in writing signed
by the Seller and City.
22. 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.
23. 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.
24. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the
State of California.
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26. 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 sr ch party as the source of the language in question. 1
26. 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, i
27. _ Duty To C operate 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.
28. 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.
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 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.
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as
if fully set forth in the body of this PSA.
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IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written
above.
I
SELLER: Della Castillo, a married woman as her sole and,separate property
'2
Delia Castillo
CitylBuyer
City of Santa Ana
' Date: 2018
Raul Godinez II
City Manager
Attest:
Maria D. Huizar Date: .2018
City Clerk
Approved as to Form:
Date:
J M. Funk
Assistant City Attorney
FOR APPROVAL:
Fuad S. Sweiss, PE, PLS
Executive Director
Public Works Agency
Date:
2— 101 .2018
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2018
EXHIBIT "A"
LEGAL DESRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN COUNTY OF ORANGE, STATE OF CALIFORNIA,
AND IS DESCRIBED AS FOLLOWS: i
THE SOUTH HALF OF LOTS 26 AND 27 IN BLOCK D OF TRACT NO. 638, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN SON A MAP RECORDED IN BOOK 19,
PAGE 17 OF MISCELLANEOUS MAPS, RECORD OF ORANGE COUNTY, CALIFORNIA.
Assessar's Parcel Number: 403-142-17
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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 fled 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.
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