HomeMy WebLinkAboutTESORO REFINING AND MARKETING COMPANY LLC (2)| �N[J'Q�0UIIED A-2019°010
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A0) PURCHASE ANDSALE AGREEMENT FOR ACQUISITION 0FREAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL
ESCROW INSTRUCTIONS (hereinafter "PSA" Or "/\oneonoenC'). dated January 0. 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 ufthe State 0fCalifornia (hereinafter "Cib/^0r"BU /').mOdTnunruRefining&Moyk8tinQ
Company LLC, a Delaware limited liability company (hereinafter "Seller'). Buyer and Seller are each 8^Partv"
t0this PSA, and collectively are the "Padiea'tnthis 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,
Ca|ifnrnia.havingAnS000ur'aP8r0e|NUmber4O3`141-O8.ond|ega||ydasoribodausetforthiUEnhlb\t''A"
attached hereto (horeinafter,the "Real Propedy').
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 t0convey the Real Property tnCity byGrant Deed, i0the form
attached hereto as Exhibit "B", at the office of Commonwealth Title Company at 4100 Newport Place Drive,
Suite 128,Newport Beach, California upon the close ofescrow 88defined |nSection 4below.
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 C0ndiUnDo, restrictions, r88eyvatioDu, exceptions, easements, 800000montn. profits, limitations,
ennUn1broAOoa (whether monetary or n0n'nnonotary, general or sp8dfiC, including any and all |aoaoho|d
iAtere$1e}.liens, clouds ordefects iotitle except those exceptions shown iDParagraph 15below. 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 tnCity because ofthe failure ufSeller toconvey title aShereinabove 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 Oftitle insurance toboissued bythe above mentioned title company, with the City therein named oothe
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
|eao8huN intarea[y), iiens, clouds nrdefects in title. Acceptance bvCity nfany such policy 0finsurance,
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 U1|e 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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the escrow. Escrow shall close on March 19, 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,
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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 March 15, 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.
B. 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 Agreement. 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 sem. (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 et seg. (42 U.S.C. §9601).
18. Disclosure of Hazardous Materials On, At, Under and Near Real Property. Pursuant to, inter alia,
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 & Indemnify. 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 remaining 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.
28. 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" i - rketing Com
a oM I +
By: John Zer
Its: _U ��/ -
'
City/Buyer
City of Santa Ana
cel--
Raul Godinez II
City Manager
Norma Mitre
Acting Clerk of the Council
I as to Form:
1)(11. -f-�4
City Attorney
0
1ENDED FOR APPROVAL:
Sweiss, PE, PLS
e Director
'orks Agency
pany LLC, a Delaware limited liability company
Date: iA , 2019
Date: 1,1-4 • 2019
Date: f Cdr'— 2019
Date: January 22 2019
Date: V , 2019
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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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