HomeMy WebLinkAboutBRISTOL CENTER PROPERTIES, LLC (2) A-2024-167
INSURANCE NOT REQUIRED
WORK MAY PROCEED
CITY CLERK
DATE: NOV 1 8 2024
FIRST AMENDMENT
O:Pweq.2-)
1 c ) 619 to TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment") is made and entered into this 15th day of October 2024 ("Effective Date") by and
among BRISTOL CENTER PROPERTIES, LLC, a California limited liability company
("Owner") as successor in interest to SOUTHWEST GROUP PROPERTIES, LLC, a California
limited liability company("Buyer")and the CITY OF SANTA ANA,a charter city and municipal
corporation organized and existing under the Constitution and laws of the State of California
("Seller"or"City"). As used herein, Owner, Buyer and Seller may be referred to collectively as
the"Parties" and each individually as a"Party."
RECITALS
A. The Seller and Buyer entered into that certain Purchase and Sale Agreement dated
the 15th day of December 2021 ("Agreement")for the sale by the Seller to the Buyer of the City's
fee simple interest in that certain real property consisting of approximately 18,290 square feet
located at 1601 N.Bristol Street(APN 405-252-21)and 1 607 N.Bristol Street(APN 405-252-22),
Santa Ma, California, legally described in Exhibit"A" attached hereto and incorporated herein
by this reference (the"Property").
B. The close of escrow occurred on May 19, 2022 ("Close of Escrow") and a grant
deed was recorded transferring the fee simple interest from the Seller to the Buyer,a copy of which
is attached hereto as Exhibit`B" and incorporated herein by this reference("Grant Deed").
C. Concurrently with the Close of Escrow and subsequent to the recording of the Grant
Deed,the Buyer transferred its fee simple interest from Buyer to Bristol Center Properties, LLC,
a California limited liability company ("Owner") and successor in interest to Southwest Group
Properties, LLC, a copy of which is attached hereto as Exhibit "C" and incorporated herein by
this reference ("Bristol Centers Grant Deed").
D. The Parties now desire to amend the Agreement in connection with certain
conditions and covenants that survived the Close of Escrow.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,the Parties agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are true and correct and are
incorporated into this First Amendment in their entirety.
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8.1.24 CAB
2. Repurchase Right. Section 6.2.4 of the Agreement is hereby amended by deleting
the first sentence of Section 6.2.4 and substituting the following in lieu thereof:
"6.2.4 Repurchase Right. Buyer hereby represents and guaranties that, subject to
a Permitted Delay(as defined herein), Buyer's tenant shall open for business to the public on the
Property as a drive-thru restaurant or a drive-thru café(the"Opening Covenant")on or before the
date that is forty-eight (48)months following the Close of Escrow(the"Opening Deadline")."
3. Consistency. Notwithstanding anything contrary contained in this First
Amendment,to the extent the terms and provisions of this First Amendment are inconsistent with,
conflict with or are contrary to the terms and conditions of the Agreement,the terms and conditions
of this First Amendment shall govern and control.
4. Effect. Except as specifically amended herein,the terms,covenants and conditions
of the Agreement are and shall remain in full force and effect and are binding and enforceable
against Buyer and Seller.
IN WITNESS WHEREOF,the Parties hereto have duly executed this First Amendment as
of the date and year first written above.
ATTEST CITY OF SA TA ANA
xt• C
By: w"V- _ By: v
P ' Name:Jenn fer L. all Print Name:Alvaro Nunez
City Manager
APPROVED AS TO FO :
By:
rint Name:Jonathan . artinez
Title:Assistant City Attorney
RECOMMENDED FOR APPROVAL: BRISTOL CENTER PROPERTIES,
LLC,a California limited liability
Digitally signed by
Nabil Saba Nabil Saba company,as successor in interest
Date:2024.09.30
By: 16:38.20-07'00' to Southwest Properties Group, LLC
Print Name:Nabil Saba J►��,�z���iW
Title: Executive Director By:
Public Works Agency Print Name: N�,G b j f oO f t>3M
Title: 'J( y Gg�
2
8.1.24 CAB
EXHIBIT A
Purchase and Sale Agreement
EXHIBIT 1
INSURANCE NOT REQUIRED
WORK MAY PROCEED A-2021-248
CLERK OF COUNCIL
DATE!
ytiyt'l. PURCHASE AND SALE AGREEMENT
(1, THIS PURCHASE AND SALE AGREEMENT("Agreement") is made and entered into
this li day of r,2021 ("Effective Date"), by and between Southwest Group
Properties, LLC, a California limited liability company ("Buyer"), and the CITY OF SANTA
ANA, a charter city and municipal corporation organized and existing under the Constitution and
laws of the State of California ("Seller" or "City"). As used herein, Buyer and Seller may be
referred to collectively as the"Parties,"and each individually as a"Party."
RECITALS
A. City is the fee simple owner of that certain real property consisting of
approximately 18,290 square feet, located at 1601 N.Bristol Street (APN No.405-252-21), and
1067 N. Bristol Street (APN No. 405-252-22) Santa Ana, California, legally described in
Exhibit"A" attached to this Agreement and incorporated into this Agreement in its entirety by
this reference(the"Property").
B. On April 21,2020, the Santa Ana City Council adopted Resolution No.2020-032
declaring the Property as surplus land and directing the City Manager to comply with the
requirements of California Government Code Section 54220 et seq.("Surplus Land Act")for the
disposition of the Property.
C. On April 27,2020,the City released a Notice of Availability("NOA")of surplus
property for the Property for a period of sixty days. This NOA was sent out to all"local public
entities," as defined in Health and Safety Code section 50079, within whose jurisdiction the
surplus land is located, and to"Housing Sponsors"that have notified the California Department
of Housing and Community Development ("HCD") of their interest in surplus land_ The NOA
was also sent to local parks agencies and school districts.
D. The Property was among those for which either no responses were received by
entities receiving the notices of availability or for which responses were received and good faith •
negotiations ended after a period of not less than 90 days without agreement to price and terms.
E. On December 10, 2020, the City issued Request for Proposal 21-159,by which it
sought Proposals for the development of various vacant properties in the City of Santa Ana,
including the Property that is the subject of this Agreement.
F. Evaluation and negotiations have concluded,and the City has otherwise complied
with all applicable requirements of the Surplus Land Act prior to the sale of the Property.
G. City now desires to sell the Property to Buyer, and Buyer desires to purchase the
Property from City, in accordance with the provisions of this Agreement.
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AGREEMENT
NOW T1hERBFORB, incorporating the foregoing Recitals and in consideration of the
mutual covenants and agreements herein contained, and other good and valuable consideration,
the receipt and sufficiency OI'W1I1Ch are hereby acknowledged.the Parties hereby agree as follows:
1. gnieorporation of Recitals. The recitals of fact set forth above are true and correct
and are incorporated into this AgEcetnent in their entirety by this reference.
2. Purchase and Sake:Purchase Price. •
2,1 Purchase and Sale. Segeisliall sell the Propperty to.Buyer,and Buyer shell penguin
the Property from Seller,subject to the terns and conditions set forth in this Agreement.
2.2 PurcJrasa Wien. The purchase price of the Property shall be Nine Hundred Fifty
ThousandDollars(5950,000,00).
3. Bsomw.
3.1 $sorrow Instructions. Within seven (7)days following the execution of this
Agreement by the Parties, Buyer will open an escrow ("Escrow") With Commonwealth Land Title
Company,4100 Newport Place Drive,Suite 120,Newport Beach,CA 92660 Attn;Once Kim("Escrow
Bolder'")for the purchase and sale of the Property. The"Opening of Escrow"shall mean the date on
which a fully executed copy ofIbis Agreement has been delivered to Escrow Bolder. Escrow Bolder shall
conlrin the Opening of Escrow to the Parties in wilting. This Agreement constitute,Joint escrow
ins►netdons to Escrow Bokdat The Patties agree to orcecutp soh.add1 onak iristructiens consistent with
theprovislons ofthis Agreemen;whichnasy be required by Escrow Bolder. AsbelvreenOw Parties.Buyer
and Seller elate that, if there is any conflibt between the terms of this Agreement and any Escrow
Instructions required by EscrewSolder,the terms oftbis Agieeruent shall coirltol. Buyer and Seller shall
each banish Escrow Boider with their respective Federal Tax Identification Numbers and such other.
intonation as is reasonably required by Escrow folder:
3.2 Pavane*afPurchasePrice. The Purobase Pride fcrthe Property shall be payable at
Closing, if Seller has deposited bite Escrow all documents and amounts required of Seller to close Escrow.
including without limitation,the"saint Doer(as defunct in Section 3.10 below),and complied with all
of Seller's other obligations under this Agreement, then on or before the "Closing Date" (as defined
!section 3.3 below)so as not to delay the"Close Of Escrow"(as defined Section 3.3 below),Buyer shall
deposit into Escrow the following in Acceptable Funds: (a)the Purchase Price and(b)the Escrow Closing
costspursuentto the preliminary Escrow Closing statement furnished byEsarowHolderasprovidedbelow.
3) Close of Escrow. Subject to Sections 3.3.1 and 3.3.2, Escrow for the sale of the
Property shall close on a date that is no later than thirty(30)days after the opening of Escrow("Closing
Dale"),subject to reasonable extension as necessary in order to satisfy the conditions precedent and other
requirements flu the Close of Escrow. As used in this Agreement,"Close of Escrow"shall mean the date
on-which the"Grant Deed"conveying fee title to the Property to Buyer is recorded in the Orange County
Recorders Office,
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3.3.1 Conditions Precedent to Buyer Obligation to
Close. Buyer's obligation to close Escrow and purchase the Property is
expressly conditioned on the satisfaction of the conditions listed in this
Seaton 3.3.1. If any such condition is not satisfied or waived by Buyer at or
prior to the dose ofEscrow,for any reason other than a default by Buyer,Buyer
may,in its sole discretion end without limiting any of Buyer's legal remedies or
•
• edies under this Agreement,terminate this Agreement by written notice to
Seller.
(1) Title Polley. Escrow }folder has issued or fs inevooably
committed to issue to Buyer the"litle Polley"(as defined in section 3.6 below)showing fee title
vested in Buyer subject only to"Permitted Exceptions"(as defined in Section 3. .below).
(2) Jtepresentations and Warranties. Each of Seller's
representations and warranties in this Agreement are materially true and accurate as of the Close
ofEscrow.
(3) Seller Obligations. Seller is not in material delimit underthis
Agreement and each material obligation of Seller to be perforated prior to the Close of Escrow,
has been pertimmed as required, including, without limitation the delivery of all documents
required of Seller under this Agreement.
(4) Possession: Seller is able,at the Close of Escrow to deliver
exclusive possession ofthe Property to Buyer in accordance with this Agreement and dees.so.
3.3.2 Conditions Precedent to Seller Obligation to
Close. Seller's obligation to close Escrow and sell the Property.is expressly
conditioned upon the satisfaction of the conditions listed inthis ecti , If
any such condition is not satisfied or waived by Seller prior to a Close of
Escrow for any reason other than a default by Seller, Seller may, in its sole
discretion andwithout limiting any ofSeller"s legal remedies orremedies under
this Agreement,combats this Agreement bywritten notice to Buyer.
(1) itepresentgtions and Warranties. Bach of Buyer's
representations and warranties set forth in this Agreement are materially true and accurate as of
the Close of Escrow.
(2) )3uver"s Obligations. Buyer is not in material default under
this Agreement,and each material obligation ofBuyertc beperfonnedprior to the Close ofEscrow
hereunder has been performed as required.
3.4 Escrow Cancellation.
3.4.1 Charges.
(1) Seller's Default. If Escrow fails to close due to Setter's
defeplt,Seller shall pay all Escrow cancellation charges. "Escrow cancellation charges"means
all fees,charges and expenses charged or passed on to the Parties by EscrowHolder,including all
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title expenses. Buyer shall be entitled to terminate this Agreement miring an action against Seller •
for specific performance as its sole and exclusive remedies.
(2) B yer's Default. If Escrow fails to :dose due to Buyer's
delimit,Buyer shall pay all Escrow cancellation charges and Seller shall be entitled to terminate
ibis Agreement as its sole and exclusive remedy.
(3) No Default. If Escrow thus to close and this Agreement is
terminated for any reason other than a default by one of the Parties,Buyer and Seller shall evenly
split any Escrow cancellation charges.
3.5 Permitted Exceptions_to Title. As soon reasonably possible after the Opening of
Escrow,Escrow Bolder shall cause Commonwealth Land Title Company,in its capacity as title insurer
("Title Company"),to deliver to Buyer. and Seller a current preliminaty title report (`"Title Report')
together with Iegible copies of all underlying documents referenced therein(together with the Title Report,
the"Tide Doeumeuts') The term"Permitted Exceptions"as used in this Agreement shall mean all of
the following: (a)the Grant Deed;(b)the Affordable Housing Covenant(c)non-delinquent real property
taxes and assessments;(d)Items andinieeptions created by or with the written consent of Buyer,including
documents to be recorded pursuent to this Agreement,and(e)the titleexceptions shown on the Title Report
but exchtdingany(1)"Disapproved Exceptions"as defined below that Seller,in its sole discretion,agrees
to remove prior to the Close of Escrow as prmvtded below mid (ii)all monetary liens and monetary
encumbrances on the Property,other then nondelittquent real property taxes and assessments which will
• be removed(meaning removal from title and not the issuance of an endorsement in connection therewith
by the Title Company) from title by Seller at Its sole cost and expenseinrior to the Close of Escrow: If
Buyer objects to anytitleexceptions in its sole and absolute discretion("Disapproved Exceptions"),Buyer
shall deliver written notice("Objection Notice')ofsanleto Sellerwithin ten(10)business days of delivery
of the Initial Title Report to Buyer. Seller shall act in good Nth and reasonably to resolve any title
exception in the Objection Notice. If Buyer falls to deliver an Objection Notice but delivers a"Notice of
Approval", Buyer shall be deemed to have approved title to the Ptopetty subject to the Permitted
Exceptions. If Buyer delivers an Objection Notice regarding a.title exception and Seller,by delivery of
written notice.to Buyer within five(5)business days followingreceipt of the Objection Notice elects not
to remove a material Disapproved Btrception(Seller's failureto respond to a BuyerObjectionNotice shall
be deemed such an election),Buyer's sole remedies shall be with respect to the delivery of a)tofce of
Approval or delivery or deemed delivery ofallotice ofTartlet:tiou.
3.6 Tide Insurance. Seller shall cause the Title Company to commit to issue to Buyer
• at the Close orBscrow a standard of erage ALTA Owner's policy of title insurance with mechanics lien
endorsement(Seller shall provide,any indemnity or other agreement required by the Title Companyas a
condition to the issuance of the mechanics lien endorsement) ("Title Polley") insuring fee title to the
Property vested in Buyer subject only to the Permitted Exceptions,with coverage in en amount equal to
the Purchase Price. If Buyer requires an extended coverage ALTA Owners policy of title insurance,Buyer
shall pay the difference in cost between the standard and extended coverage and the cost of any
endorsements(other than a mechanics lien endorsement issued in connection with the standard coverage
Title Policy which shall be at the cost of Seller)("Buyer TEle Costs"). Seller shall only be responsible
for that portion of the Cost of the Title Policy equal to the cost of a standard coverage title policy("Seller
Title Costs").
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3.7 Possession. Seller shall deliver possession of the Property to Buyer at the Close of
Escrow subject only to the Permitted Exceptions and tree of any tenancies and/or third patty claims of use
or ownership.
3.8 Taxes,Assessments and Proration.
3.8.1 legs Only to the extent the Seller pays any
property takes or assessments on the Property,all currant general and special
taxes and assessments on the Property shall be prorated by Escrow holder based
upon the latest available information as shown in the tax statements provided to
Escrow Holder by Seller,using customary escrow procedures in Change County.
Seller shall provide Buyer with written evidence of the payment or sattsfaadon
of such taxes. Should the Propertybe part of a larger tax parcel("Assessment
Parcel") which as of the Close of Escrow remains unsegregated on the County
Tex Assessor's Roll for the castling fiscal year, Escrow Bolder shall charge
Buyer and credit Seller for taxes and assessments allocated to the Pit/party
(bused on unimproved value)based on the percentage of the total acreage ofthe
Assessment Steellocated on the Property,which.amage Mr allocation
purposes shall be fairly and equitably determined and supplied tp Escrow Holder
by Buyer and Seller. Buyer and Seller shall cooperate in good faith to cause the
Property to be separatelyassessed and segregated*Buyer's name on the curet
Mk roll. Any real property taxes or assessments levied•under'the Supplemental
Tax Roll as a result ofthe sale of thoProparty to Buyer,shall betheresponsibility
of Buyer. Any real property taxes or assessments levied under theSupplawental
Tax.Roll as a result of transtbrs,imprevemente or other occurrences before the
Close of Escrow shall be the responsibility of Seller.
18.2 General, All pm rations provided for herein shall
be on an"actual day"basis end a three hundred sixty-five(365)dayyear. The
pmdislona of this Section shell survive Close ofBscrow. If either Party fails to
pay its pro rata share of taxes or other expenses by the times herein.ptrtviited,
interest shall accrue on all unpaid entrants from when.owing until paid at the
maximum rate allowed by law. Any errors or omirolerut made in catoulsding
adjustments and proration shall be corrected promptly upon the discovery
thereof, If any estimations are made at the Close of ,Escrow regarding
adjustments or proration, the Parties shall make the appropriate collection
promptly when accurate information becomes available. My corrected
adjustment or proration shall be paid to the Patty entitled thereto within thirty
(30)days after written request therefor and if not so paid interest shall accrue
and be payable on same at the maximum rate allowed bylaw.
3.9 ClosiniCosts, Buyer shall pay the cost ofthe Title Policy,the Escrow Fees and any
applicable documentary transfer fees(considering Seller is a City)and recording fees,and all other costs
end expenses incurred related to the purchase of the Property by Boyer. If required by Buyer's lender,
Buyer shall also pay for the appraisal cost of the Property(collectively, "Closing Coats"), As soon as
.reasonably possible fbllowing the Close of Escrow,Escrow Holder shall deliver a copy of the final Escrow II
closing statement to Buyer and Seller.
.5,.
1
3.10 Grant Deed, The transfer of ownership of the Property shall be demounted through
a Grant Deed in the form attached hereto as Exhibit"B"and incorporated herein by reference,conveying
the Property to Buyer("Grant Deed"),
3.10.1 ,Affordable Homing Covenant in the Event of
Residential Development, In accordance with California Government Code
Section 54233,if 10 or more residential units are developed on the holies,not
less than 15 percent of the total number of residential units developed on the
Property shall be sold or rented at affordable housing cost,as defined in Section
50052.5 of the Health and Safety Code,or affordable rent,as defined in Section
50053 of the Health and Safety Code,to lower income households,as defined in
Section 50079.5 of the Health and Safety Code. Rentsl units shall remain
ailkbrdable to,and occupied by,lower income households for a period ofat least
55 years for rental housing and 45 years for ownership housing. The initial
occupants of all ownership units shall be lowerincome households,and the units
Shell be aubjeot to an equity sharing agreement consistent with the provisions of
paragraph (2) of subdivision (e) of Section 65915 of the Government Code.
Buyer expressly agrees and consents that the requirements of this section shall
be contained in a covenant or restriction recorded against the Property prior to
land use entitlement of the project,and the covenant or restriction shall tun with
the land and shall be enforceable,against any owner who violates a covenant or
restriction and each successor in interest who continual the Violation,by any of
the entities described in subdivisions(a)to(f),inclusive,of Section 54222.5 of
the government Code.
3.11 Recordation and Delivery of Documents. No later, than the business day
immediately prior to the Closing Date, Buyer and Seller, as applicable, will deposit into Escrow the
following documents(with the documents that are to be recorded In the following order and delivered as
provided Wow):
3.11.1 Grant Deed. One (1)filly executed and
aelrnowledged copy of the Grant Deed conveying the Property to Buyer.
Conformed Copies of the recorded Grant Deed shall be returned to Buyer and
Seller as soon as possible.
3.11.2 Withholding Exemption Certificates. One
(1)completed and executed copy of the following: Non-foreign Transferor
Declaration; Preliminary Change in Ownership Report, Internal Revenue
Service Form 1099-S, and California Franchise Tax Board Pon 593 end any
other applicable state tax withholdingforms,as applicable.
3.11.3 Disbursement of Closing Documents. As soon as
teasonably possible following the Close of Escrow,Escrow Holder shall deliver
copies ofall closing documents,including,without limitation,those listed above,
the Title Policy),any additional escrow instructions and the final Escrow closing
statement,to Seller's counsel and Buyer's counsel.
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3.12 Seller's Proceeds, At the Close of Escrow,subject to Section 3.13 below,Escrow
Holder is directed to wire fluids representing Seller's cash proceeds through Escrow to Seller'a account as
directed in separate written instructions to be provided by Seller.
3.13 Cal-PIEPTA Withholding, Unless this transaction is exempt wider Califs mia
Revenue and'Taxation Code Sections 18805 and 26131,Escrow Bolder shall be the"withholding agent"
and withhold from proceeds due Seller any amounts requited under the above code sections to he withheld
by Buyer and ply same to the California Franchise Tax Board or Internal Revenue Service in accordance
with applicable law.
3.14 Additional Document. Seller and Buyer shall execute and deliver to Escrow any
other documents reasonably required by Escrow Holder including,without limitation,Seller's affidavits.
or statements regarding mechanics liens and!or tenants aquatics in possession.
3.15 Termination of Properly Comtr ecte. Seller shall terminate any service contracts or
similar agreement relating to the Property that the Buyer does not expressly elect in writing to assume
which termination shall be effective as of the Close of Escrow.
4, Real Estate Brokerage Commission, Buyer and Seller each represent and warrant
to each other that they have not employed, dealt with or inopnre4 any obligation to any broker,
agent or finder in connection with the Property,and that they have not incurred any obligation to
pay any other real estate brokerage or other commission or fee in connection with the conveyance
of the Property to Buyer. Buyer and Seller agree to indemnify,defend and hold each other flee
and harmless from and against all costs and liabilities,including Without limitation reasonable
attorneys'fees and the costs and expenses of litigation,for causes of action or proceedings in any
way related to or resulting from a breach of the tbregoing representation and wananty or arising
out of any action or proceedings which may be instituted by any broker,agent or finder,licensed
or otherwise, claiming through, under or by reason of the conduct of the indemnifying Party,
respectively,in connection with this transaction.
5. Inspections:AS-IS Condition of Property
5.1 Waiver of Inspections. Buyer and Seller agree that Buyer unequivocally waives any
right to conduct independent investigations concerning (1)Buyer's proposed use, sale, development or
suitability for development of the Property; (if)the condition and all other attributes of the Property,
inoluding, without limitation all improvements located thereon; (iii)applicable laws, statutes, rules,
regulations, ordinances, limitations,restrictions or requirements concerning the use,density,location or
suitability of the Property or any existing or proposed development or condition thereof,braluding but not
limited to zoning,subdivision and Other regulations;(iv)the necessity or availability of any specific plan
or general amendments,rezoning,zone variances,conditional use permits,buildingpetmmits,environmental
impact reports, subdivision maps,public reports issued by the California Bureau of Real Estate and all
other governmental permits, approvals or acts; (v)the necessity and existence of all dedications, fees,
charges,costs or assessments which may be imposed by any Governmental Authority in connection with
the proposed development of the Property;(v1)the value of the Property;(vii)the availability or adequacy
of access to the Property, or of water,sewage, gas, electrical or other utilities serving the Property and
(viii)the presence or adequacyofiafrastracture or other improvements on,near or concerning theProperty.
5.2 No Representations or Warranties. Seller makes no representation or warranty,
express or implied,to the Buyer relating to the condition of the Property or suitability of the Property for
any intended use or development by the Buyer.
53 Acceptance of Property"AS-It" Buyer shall accept all conditions of the Property,
without any liability of the Seller whatsoever,in the Property's AS•IS,WRERz1S,summon()ALL
FAULTS CONDITION, WIThOUT WARRANTY AS TO QUALITY, CHARACTER,
PERFORMANCE OR CONDITION,and with!tall knowledge of the physical condition of the Property,
the secure of the Seller's interest in and use of the Property,all laws applicable to the Property and of any
and all conditions, restrictions, encumbrances and all matters of record relating to the Property. The
Property is being acquired by Buyer as a result of its own knowledge of the Property and not as a result of
any representation(s)made by the Seller or any employee,official,consultantor agent of the Seller relating
to the condition of the Property,unless such statement or representation is expressly and specifically set
kith in this Agreement, Seller hereby expressly and specifically disclaims any express or implied
wandlike regarding the Property,unless expressly and specifically set forth in this Agreement.
b. Warranties. •
61 Seller's Warranties. In consideration of Buyer entering into this Agreement end as
an inducement to Buyer to purchase the Property from Seller,Seller makes the following representations
and warranties which shall be true and correct as of the Effective Date and the Close of Escrow and each
of which is material and being relied upon by Buyer, For.all purposes Of thisAgreement,this Agteement,Including Seller's
representations andwarrenties contained herein,the phrase"to.the best of$vller's knowledge"shall Mean
the current actual knowledge of Seller. Ifprior to the Close of Esetow,Buyer hes actual Knowledge that
any representation or Warranty of Seller is name, inaccurate or incomplete in any material respect(and
without waiving any of Buyer's rights or remedies hereunder at law or inequity with respect to any material
untruth,incompleteness or inaccuracy existing on the Effective Date,that was known of or should have
been known- f by Seller),Buyernraygive Seller written notice ofsame and Seller shall have seven(7)days
from the date of receipt of Buyer's notice(end the Closing Date shall be extended to permit the running of
such seven(7)day period)("Seller Cure Period'?to correct any fatter or circumstance that makes such
representation or warranty matetially untrue or inaccurate to Buyer's reasonable satisfaction. If Sella fails
to make such correction within the Seller Cure Period,then Buyerby written notice to Seller within three
(3)days after the expiration of the Seller Care Period(ana the Closing Date shall be extended to permit the
tanning of snob three(3)day period)shall be entitled(a)to terminate this Agreement,or(b)continue this
Agreement In fell force and effect with no chaage in terms,but without waiving any legal,equitable or
other remedies it may have against Seller. The foregoing is not a waiver or release of any ofBuyer's rights
or remedies lot any material untruth,incompleteness or inaccuracy in arepresentation orwarranty of Seller
of which Buyer obtains knowledge after the Close of Escrow.
6.1.1 Authorization. Seller has full powetandauthority
to enter into this Agreement and to palms all its obligations hereunder,and has
taken all action required by law, its governing instruments or otherwise to
authorize the execution,delivery and performance of this Agreement by Seller.
Each individual or entity who has executed this Agreement on behalf of Seller •
has the right,power,legal capacity and authority to execute,deliver and perform
this Agreement on behalf of Seller,
is
•
6.1,2 Conflicting Agrartments, Neitherthe execution or
delivery of this Agreement, nor the consummation of the transaction
contemplated herein, will conflict with,or result in a breach of; any contract,
license or undertaking to which Seller la a party or by which Seller or any of the
• Property is bound,or constitute a default thereunder. In addition,with respect
to any agreements that affect the Property,neither Seller nor any other patty or
parties to such agreements are in default thereunder nor arc there any acts that
currently exist which with the passage of time wortldresult in any such default.
To the best of Seller's knowledge,the Property Isnot subject to anyprescriptve
easements, claims of adverse possession, encroachments or similar rights or
claims. The Property is not subject to any leases,options or other similar rights
or claims in favor of any third parties. The Property is not subject to a
Williamson Act contract or any similar agricultural agreement.
6.1.3 laggilingg. To the best of Seller's knowledge,
no legal or administrative proceeding is pending or threatened against Seller or
the Prop nor are there any other facts or oitomustenoes which would
adverse arty affect (i)Seller's right to convey title to the Properly to Buyer as
contemplated in this Agreement, or(ii)Buyer's ability to own,develop and/or
market the Pmpetty in the manner disblosed by Buyer to Seller. To the best of
Seller's knowledge,there are no condemnation or eminent domain proceedings
pending bt threatened with respect to the Property.
tr.1A Binding Agreement. This Agreement constitutes
a legal, valid and binding obligation of Seller enforceable against Seller In
accordance with.its terms,except to tie extent that such enforcement may be
limited by applicable hanluuptey,insolvency,moratorium and other principles
relating to or limiting the tights of contracting parties generally.
6,1.5 Violations of Lew. On the Effective Date and
Close of Escrow neither this Agreement nor the Property shill be in violation of
any law,ordinance,rule regulation,or administrative or Judicial order.
6,1.6 Eazardonis Materials. Seller has not stored or
released,caused to be stored or released or approved the storage or release on
the Property,of any"hazardous materials"(as defined below). To the best of
Seller's knowledge. (a)no prior owner of the Property has stored or caused to
be stored any'hazardous materials on the Property;(b)no hazardous materials
now exist In,.on or under the Property in violation of any"environmental law"
(as defined below);(o)there are no underground tanks on the Property nor have
there ever been anyunderground storage tanks on the Property;(d)no use of or
operations on the Property have occurred which use or operation has violated
• any applicable environmental law; and (e)the Property is not on any
"Superfand" list under any applicable environmental law. As used herein,
"environmental Jaw"shall mean any and all present federal,state or local laws
(whether common law,statute,rule,regulation or otherwise),permits,orders and
any other requirements of Governmental Authorities rebating to the environment
.g.
to any"hazardous materials"(as defined below)(including without limitation
the Comprehensive Environmental Response,Compensation and Liability Act
of 1980 (42 U.S.C. §§9601 et seq.) as amended limn time to time and the
applicable provisions of the Califbrnia Health and Saibty Code and California
Water Code). As used herein, "hazardous materials" shall mean any
(a)chemical, compound,material,Mixture or substance that is now defined or
listed in, or otherwise classified pursuant to any environments! law as a
"hazardous attbstanee," "hazardous material," "hazardous waste:'
, "extremely hazardous waste," Infectious waste," "toxic Waste," "texie
pollutant"or any other fbnrmiadonintended to define,list or classify substances
by reasoe of deleterious properties or effeot and(b)petroleum,petroleum by-
products, natural gas,natural gas liquids, liquefied natural pa, synthetic gas
usable for fuel(or mixtures of natural gas in such synthetic gas),ash,municipal
solid waste steam, drilling fluids,produced waters and other wastes associated
with the exploration, development and production of crude oil,natural gas or
geethermaI resetnees.
6.1.7 No Assumed Obligations, There are no
obligations or responsibilities of Seller with respect to the Property or otherwise
of any kind that are assumed by Buyer.
6.1,8 $ndangered Species. To the best of Seller's
knowledge,(a)there are no endangered or threatened species of animals,plants
or insects on the Property, and (b)there are no envirormoental or biological
characteristics of the Property or adjacent property,which under existing law
will adversely affect Buyer's ability to own,develop..and/or market the Property
or the cost thereof.
6.1,9 OwnershipofProperty. Seller is the sole and only
party that owns or bids any Interest in the Property,
6.1.10 1Prouerty Documents. To the best of Seller's
knowledge,the Property Documents and all edict documents and information
provided by Seller or its agents or consultants to Buyer are complete,true and
accurate and do not omit any material fact,and there are no other documents,
materials,studies,surveys or other information in the possession or control of
Seller that would have a material and adverse effect on Buyer's ability to own,
develop and/or market the Property.
641.11 Other Agreements. Wept as set forth in the
Property Documents and this Agreement,Seller has not made any commitment
or representation to or entered into any agreement of any kind with any
government authority,or any adjoining or surrounding property owner,group or
other third patty,which would in any way be binding on Buyer or all or any
portion of the Property or would interfere in any way with Buyer's ability to
own,develop,improve and/or market the Property,and will not make any such
representations or warranties or enter into any such agreements which would
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affect the Property or any portion Mateo/pilot to the Close of Escrow,without
Buyer's written consent.
6.1.12 ,Access. There is fill and unobstructed direct
access to the Property from public streets,highways or made that are adjacent to
the Property,
6.1.13 pankruntev. No "Bankruptcy Event" as
defined below)lies occurred with respect to Seller nor any Member.or manager
•of Seller.There is not pending or threatened any case,proceeding or other action
seeking reorganization,arrangement,adjustment,liquidation,dissolution or re.
eonipositon .of Seller or any member or manager of Seller or seeking
appointment of a receiver,trustee,custodian or similar official for Seller or any
member or manger of Seller for all or any substantial part of its or their assets.
"Bankruptcy Went"means(a)the making by a person of a generalassignment
farther benefit of such person's creditors,(b)the admission in writing by a person
of its inability to pay its or their debts as they mature, (c)an attachment,
execution ar other judicial seizure of any property interest which remains in
effect,or(d)the failure to have taken or submission to any action indicating a
general inability by a person to meet its financial obligations as they accrue.
6,1.14 Material Change. Seller shall promptly notify
Buyer if Seller obtains information that would make any of the representations
or warranties contained hernia materially inaccurate or.mialeading.
•
6.2 Buyer's Warranties. In consideration of Seller entering into this Agreement and as
an inducement to Seller to Bell the Property to Buyer, Buyer makes the Mowing representations and
warranties which shall be true'and entreat as of the Effective Date and the Close of Escrow and each of
which is material and being relied upon by Seller. For as pwposes of this Agreement,Including Buyer's
representations and warranties contained herein,the phrase"to the best of Buyer's knowledge"shall mean
the current actual knowledge of Buyer. If prior to the Close of Escrow Seller determines that any
reptesentatiouorwattaiuyofBuyeris untrue,inaccurate or incomplete in anymaterialrespeet(andwithout •
waiving anyof Seller's tights orre1edtek hereunder at law era equitywith respect to any mate4ai untruth, II
incompletenessorinaccuracyexistingonthe.EffectiveDate,thatwasknovtnofarahouldhavebeenkn wn
of by Buyer),Seller may give Buyorvvritten notice of same and Buyer shall have seven(7)days from the
date of receipt of Sellers notice(and the Closing Date shall be extended to permit the running of such
seven (7)day period) ("Buyer Cure Period') to correct any fact or circumstance that makes such
representation or warranty materially untrue or inaccurate to Seller's reasonable satisfaction. If Buyer fails
to make such correction within the Buyer Cure Period,then Seller by written notice to Buyer within three
(3)days after the expiration of the Buyer Cure Period(and the Closing Date shall be extended to permit
the running of such three(3)day period)shall be entitled(a)to terminate this Agreement or(b)continue
this Agreement in fill force and effect with no change in terms,but without waiving arty legal,equitable
or other remedies it may have against Buyer, The foregoing is not a waiver or release of any of Seller's
rights or remedies for any material untruth,incompleteness or inaccuracy in a representation or warranty
of Buytr of-which Seller obtains knowledge after the Close of Escrow.
-I1•
6.2.1 Authorization, Buyer is a limited liability
company duly formed in the State of California and validly existing under the
laws of the State of California and is qualified to transact business in the State
of California. Buyer has full power and authority to enter into this Agreement
and to perform all of its obligations hereunder,and has taken all action required
by law, Rs governing instruments or otherwise to authorize the execution,
delivery and performance of this Agreement. Each individual who has executed
this Agreement on behalf of Buyer has the right,power, legal capacity and
authority to execute,deliver and perform this Agreement on behalf of Buyer.
6.2.2 Binding Agreggemt This Agreement constitutes
a legal, valid and binding obligation of Buyer enforceable against Bityer in
accordance with ha terms,except to the*tent that such enforcement may be
limited by applicable bankruptcy,insolvency,moratorium and Other principles
relating to or limiting the rights of contracting parties generelly.
6,2.3 Comnliance with Law. Buyer is required to carry
out the development of the Project in conformity with all applicable laws,
including all applicable building, planning and zoning laws, including any
historic property regulations and environmental laws.
6.2.4 Repurchase Right, Buyer hereby represents and
guarantees that,subject to Permitted Delay(as definedboretu),Buyer shall open
ibr business to the public on the Property as a drive.thru restaurant or drivc-tbru
cafe(the"Opening Covenant)on or before the date that is thirty(30)months
following Close of Regrow(the"Opening Deadline,..If Buyer has not satisfied
the Opening Covenant on or before the Opening Deadline,Seiler may,elite sole
end exclusive remedy, elect to repurchase the Property from Buyer (the
"Repurchase Right")pursuant to-the terms and conditions below. Seller shall
provide written notice to Buyer of its exercise(the"Exercise Notice")withip
sixty(60)days following the Oppening Deadline("the Exercise Window"). The
Exercise Notice shall propose a date for closing that is no lea than forty-five
(45) days, nor more than sixty(60) days, following the date of the Exercise
Notice,with such closing then occurring,on a date mutually convenient to both
the Seller and Buyer (the "Repurchase Closing Date"). if(a)Seller fails to
deliver its Exercise Notice to Buyer within the Exercise Window,or(b)Buyer
satisfies the Opening Covenant after receipt of the Exercise Notice but prior to
the Repurchase Closing Date, then the Repurchase Right shall automatically
terminate and be of no tether force end efot. The repurchase deed shall be
identical in form to the deed by which title to the Property was conveyed by
Seller to Buyer and shall be free and clear of any and all mortgage liens or.other
evidence of indebtedness.The purchase price to be paid to Boyer by Seller for
the Property shall be equal to eighty percent(g0%)of the Purchase Price paid
by Buyer to Seller under this Agreement. Seller's exercise of the Repurchase
Right shall be Seller's sole and exclusive remedy for Buyer's failure to satisfy
the Opening Covenantp pier to the Opening Deadline. Notwithstanding anything
to the contrary set forth herein,if Seller elects to exercise its Repurchase Right,
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!
in no event may any consideration be paid to.Buyer be in a form otherthan cash.
As used herein,the term"Permitted Delay" shall refer to any delay resulting
torn acts of God;fire;earthquake;flood;explosion;action of the elements;war;
invasion; insurrection; riot; mob violence; sabotage; malicious mischief
inability(notwithstanding good faith and diligent efforts)to procure(or general
shortage of) labor, equipment, facilities, materials, or supplies in the open
market;failure of transportation;strikes(other than any strike resulting from acts
of Buyer); lockouts;action of labor unions; condemnation laws;requisition or
order of government or civil or military or naval authorities;or any other similar
cause to those stated above, not within a Buyer's reasonable control.
Notwithstanding anything to the contrary contained herein, in no event shall
financial inability constitute Permitted Delay.
6.2.5 Approvals.Buyer shall obtain all final approvals,
including, without limitation, rite building permit and all related municipal
approvals(the"AppmvalsInecessary.for developing the Prcpettyin substantial
conformance with the site plan that was included with the Buyer's proposal for
the Property submitted in reeponse to City's Request for Proposal No.20-159(a
copy of which is attached as Exhibit "C", the "Intended Improvements'y
appropriate for the operation of a restaurant (the'intended Use"),such that
immediately following the acquisition of the Approvals,Buyer shall be entitled
to dontmence construction of the Intended Improvements. Nothing in this
agreement shall constitute Approvals by Seller,and Buyer acknowledges that it
must comply with all of Seller's development standards, guidelines and
procedures that are applicable to the Intended Improvements and the Intended
Use.
6.3 Natural Hazard Zone Disclosure. No later than seven(7)business days prior to the
PropeityApproval Date,the Seller will,at its sole cost and expense;provide Buyet with a Natural Hazard
Zone Disclosure required by applicable law.
6.4 Buyer and Seller Cooperation, Buyer shall submit plans for the Project to Seller,
and Seller,in its capacity as the City within whit%the Project is located,will make the determination as to
the required entitlements based upon Buyer's proposed plans. Buyer may then process and obtain the
Project Entitlements through Seller in its capacity as the City within which the Project Entitlements is
located. Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to
exefvise of governmental discretion with regard to such items, nor a guarantee that such approvals or
permits will be granted at all or within any particular time or with or without any particular conditions.
7. Pestnicton/Condemnation otPropertte Utter Notices, In the event that all or any
portion of the Property is damaged or destroyed by any casualty under the provisions of applicable
law after the Effective Date but prior to the date of Closing, Seller shall give Buyer immediate
written notice of the same.
•
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8. Indemnification.
8.1 Obligations. Seller shall Indemnify Buyer and Buyer shall Indemnify Seller against
any wrongutd intentional act or negligence of the lndemnitor. Buyer shall also Indemnity Seller against
any and all of the following: (a)any damage to the Property caused by the Investigations of the Property
by Buyer;and(b)any accident,injury or damage Whatsoever caused to any person in or on the Property
by Buyer prior to the Closing. Notwithstanding anything to the contrary in this Agreement,no Indemnitor
shall be required to Indemnify any Indemnitee to the extent retire Indemnitee's wrought intentional acts
ornegligehee.
8.2 Limitation on Liability of the Seller. Following the Close of Escrow,the Buyer is
and shall be responsible for operation of the Property and the Project,and the Seller shall not be liable for
any injury or damage to any property(of the Buyer or any other person)or to any person occurring on or
about the Property or the Project, except to the extent caused by the Seller's wrongM intentional actor
negligence.
8.3 Strict Liability. The indemnification obligations of an Indemnitor shall apply
regardless ofwhether liability without fault or strict liability is imposed or sought to be imposed on one or
more lndemnitees.
8.4 Independent of Insurance Obligatlon^<, Buyer's indemnification obligations udder
this Agreement shall not be construed or interpreted as in any way restricting, limiting, or modifying
Buyer's insurance or other obligations under this Agreement and is independent of the Buyer's insurance
and other obligations larder this Agreement. Buyer's compliance With its insurance obligations and other
obligations under this Agreement Minot in any Wayrestrct,limit,or modify the Buyer's indemnification
obligations under this Agreement and are independent of the Buyer's indemnification and other obligations
underthis Agreement.
8.5 ffiurvival of indemnification and Defense Obligations. The indemnity and defense
obligations under this Agreement than survive the expiration or earlier termination ofthis Agreement,until
all claims against any of the Indemnitees involving any of the indemnified matters are folly, finally,
absolutely and completely barred by applicable statutes of limitations.
8.6 Independent Duty to Defend, The duty to defend under this Agreement is separate
and independent of the duty to Indemnify. The duty to defend Includes claims for which an Indemnitee
may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a
claim,regardless of whether the issues of negligence,liability,fault,default or other obligation on the part
of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately,
regardless of whether the Indemnitee has paid any amounts or incurred any detriment arising out of or
relating(directly or indirectly)to any claims. It is the express intention of the Parties that an Indemnitee
be entitled to obtain sumtnary adjudication or summary judgment regarding an Indemnitor's duty to defend
the Indemnitee,at any stage of any claim or suit,within the scope ofthe Indemnitor's indemnity obligations
under this Agreement.
8.7 Indemnification Procedures. Wherever this Agreement requires any Indemmitor to
Indemnify any indemnitee:
•14-
t
8,7,1 Prompt Notice, The Indemnitee shall promptly
notify the hide/miter of any claim. To the extent,and only to the extent,that
therndomuitee fails to give prompt Notice of a Claim and such Mute materially
prejudices the Indemnitor in providing indemnity for such claim,the Indemnitor
shall be relievedof its indemnity obligations for such claim. '
8.7.2 Selection ofCounsel. The Inderanitor shall select
counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor's
insurance carrier that is providing coverage for a claim shall be deemed
reasonably satisfactory. )3ven though the Indemnitor shall defend the action,
Indemnitee may,at its option and its own expense, engage separate counsel to
advise it regarding the claim end its defense. The Indemnitee's separate counsel
may attend all proceedings and meetings, The Indaronitor's counsel shall
actively consult with the Indemnitee's separate counsel. The Indemnimr and its
counsel shall,,however,fully control the defense,except to the present that the
Indemnitee waives its rights to indemnity and defense for snob claim.
9. $iscelhanoous,
9.1 Notices, Any notice,request, demand, instruction or other document requited or
permitted to be given or served hereunder or under any document or instrument executed pursuant hereto
will be in writing and will he delivered personally or sent by United States registered of certified mail,
return receipt requested,postage prepaid or by overnight express courier,postage prepaid and addressed to
the parties at their perspentive addressed set forth below,and the aarne will be effective upon the date of
confirmed dispatch,if by electronic com nunioadon receipt if delivered personally or via overnight express
courier or on the third.Business Day afterdeposit;fmailed. A patty may change its address fir receipt of
notices by service of a notice to such change in accordance herewith. Bayer and Seller hereby agree that
notices may be given hereunder by the patties'respective counsel and that,if any communication is to be
given hereunder by Buyer's or Seller's counsel,Such counsel may communicate direotlywith all principals
as required to comply with the provisions of this'Seetion.
Ins Buyer, Southwest Group Properties,I.I.0
714 S.Plymouth Blvd
Los Angeles,CA 90005
Attn:Amir Elouriani
If to Seller: City of Santa Ana
20 Civic Center Plaza M-30
Santa Ana,CA 92702
Attn:Clerk of the Council
with a copy to: City of Santa Ana
20 Civic Center Plaza M-21
Santa Ana,CA 92702
Attn:&ecutive Director of Public Works
-I5- '
1
92 No Third Party 13eneiiciariep. Notwithstanding any provision contained in this
Agreement to the contrary,this Agreement is intended as and shall be deemed to be an agreement for the
sale of assets and none of the provisions hereof shall be deemed to create any obligation or.liability of any
person that is not a Party, whether under a third-party beneficiary theory, laws relating to transferee
liabilities or otherwise. Buyer shall not assume and shall not be obligated to discharge or be liable for any
debts,liabilities or obligations of Seller includingF but not limited to,any(a)liabilities or obligations of
Seller to its creditors,shareholders,members,partners,•managers,or owners,(b)liabilities or obligations
of Scher with respect to any acts,events or transactions occurring prior to,otter after the CloseofBscrow,
(o)liabilities or obligations of Seller for any federal, state,county or local taxes, or(4)any contingent
liabilities or obligations of Seller,whether known or unknown by Seller or Buyer. Buyer shall have no
duty whatsoever to take any notion or receive of make any payment or credit arising from or related to any
services provided or costs incurred in connection with the Property prior to the Close of Escrow,including,
bat not limited to,any matters relating to cost reports,collections,audits,hearings,or legal action arising
therefrom. •
9.3 Anther Instruments. Each Party will,whenever and as often as it shall be reasonably
requested to do so by the other,cause to be executed,acknowledged or delivered any and all spelt further
instnunents and documents as may be necessary or proper, in the reasonable opinion of the requesting
Party,in order to carry out the intent and purpose ofthis Agreement.
9.4 Calculation at Time Periods:Business Dav: Tine of Essence. Unless otherwise
specified,in computing any period of time described herein,the day of the act or event after which the
designated period of(line begins to run is not to be included and the last day of the period so computed is
to be included,unless such last day is not a Business Day,in which event the period shall it until the end
of the next day which is a Business Day: The last day of any period of time described herein shall be
deemed to end at 5:00 p.m.local*mein the state in*hie theReal Property:bloated As used herein,
the term"Business Day"means any day occluding Saturdays,Sundays and State and National holidays
and any day the City is closed. Subject to the forego ngprovislon ,thueis of theesseuceofthls Agreement.
9.5 Barre Agreement; Atnondments. This Agreement (including the documents
delivered pursuant to this Agreement), constitutes the entire agreement of the Patties pertaining to due
subjeetmatterofthisAgreementandsupersedesaliprioragreementsorlettersofintentoftheParties. This
Agreement may not be amended,modified,or supplemented except by a Witten instrument sigaedby an
authorized representative of each of the Parties.
9.6 ,Survival. All covenants,agreements, representations,warranties and indemnities
contained in this Agreement shall survive the enaction and delivery of this Agreement and the Close of
Escrow and the delivery and recordation of all documents or instruments in connection therewith.
9.7 Binding Effect Bnforcerinent. The covenants, agreements, representations, and
warranties contained herein will be binding upon, be enforceable by and inure tc the benefit of the
representatives,successors,and permitted assigns of the respective parties hereto.
9.8 Applicable Law. This Agreement will be construed and interpreted under, and I
governed and enforced according to,the laws of the State of California applicable to contracts made and
to be performed entirely therein,
-16-
i
9.9 Venue, In the event of any legal action to enforce or interpret this Agreement,the
sole and exclusive venue shall be the Superior Court of Orange County and the Parties hereby agree to and
do hereby submit to the jurisdiction ofsuoh court.
9.10 Attorneys'Fees, If any Party to this Agreement shall bring any action or proceeding
for any relief against the other,declaratory or otherwise,in any way arising out of or in connection this
Agreement and/or the Property,the losing Party shall pay to the prevailing Party a reasonable sum fbr
attorneys" tbes and costa (including without limitation expert witness fees) incurred in bringing or
defending such action or proceeding or caning any judgment granted therein, all of which shall be
deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether
or not such action or proceeding is prosecuted to final judgment. Any judgment or order entered in such
action or proceeding AC contain a specific provision providing for the recovery of attorneys'fees and
costs,separate ilum the judgment, incurred in enforcing such judgment. The prevailing Patty shall be
determined by the trier of fact based upon an assessment of which Party's major arguments or positions
taken In the proceedings could fairly be laid to have prevailed over the other Patty's major arguments or
positions on major disputed issues, For the purposes of this Section,attorneys'fees shall Inolude,Without
limitation, fees incurned in the following: (I)post-judgment motions; (2)contempt proceedings;
(3)garnishment,teyyanrtdthtor and third party eaminations;(4)diseovery;and(5)bankruptcy litigation.
9.11 Construction. The provisions of this Agreement shall not be construed in favor of
or against.either Party;but shell be construed as if both Parties prepared this Agreement.
9.12 lnteroretation. The paragraph and section headings in this Agreement ate solely for
convenience and will not be deemed to limit Or otherwise afibot the meaning orconaouction of any part of
this Agreement, Any pronoun used in this Agreement will be deemed to cover all genders. 'The terms
"include,""including,"and similar terms will be construed as if tbllowed by the phrase"without being
limited to." The term"or"has,except where otherwise indicated,the inclusive meaning represented by
the phrase"and/or." The words"hereof," "herein," "hereby,""hereunder,"and similartemss in this
Agreement rtfar to this Agreement as a whole and not to any particular provision or section of this
Agreement. Words in this Agreement importing the singular number will mean and indlude the plural
number,and vice versa.
9.13 No Waiver. No waiver by a Party of a breach of any of the terms,covenants, or
conditions of this Agreement by the other shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term,covenant or condition contained herein.Ngwaiver ofany
default by a Patty shall be.implied hobs any omission by the other Patty to take any action on account of
such default if such default persists or is repeated and no express waiver shall affect a default other than as
specified in such waiver. The consent or approval by either Party to or of any act by the other requiring
the that Party's consent or approval shall not be deemed to waive or render unnecessary the Consenting
Party's consent or approval to or of any subsequent similar acts by the other Party.
9.14 Severabllity of.Provisions, Wherever possible,each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable law,but if any provision of
this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffeotive
only to the extent of such prohibition or Invalidity,without invalidating the remainder of such provision or
the remaining provisions of this Agreement.
-17-
9.15 Incorporation of Exhibits. Except as intentionally omitted, all exhibits attached
hereto and referred to herein are incorporated into the Agreement as though fully set forth herein.
9.16 Counterparts. This Agreement may be executed in any number of counterparts and
by different Parties to this Agreement in separate counterparts, each of which when so executed and
delivered will be deemed original,but all such counterparts,together,will constitute but one and the same
instrument. Signature pages may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same document. This Agreement will
become effective upon the execution and delivery of a counterpart hereof by each Party to this Agreement.
A signature of a Party to this Agreement sent by facsimile, electronic mail (including a scanned portable
document format copy sent by electronic mail),or other electronic transmission will have the same force
and effect as delivery of an original signature of such Party.
9.17 Amendments. This Agreement may not be modified, changed, supplemented,
superseded,canceled or terminated,except by written instrument signed by the Parties hereto.
IN WITNESS WHEREOF,the Parties have executed this Agreement to be effective as of
the Effective Date.
ATTEST CITY OF SANTA ANA
=.0 3 07- / -41.
Daisy Gomez j KriSiine Ridge "'L-
efty Clerk City Manager
APPROVED AS TO FORM
Sonia R.Carvalho
City Attorney
i
By: ' �""' '�
John M.Funk
Sr.Assistant City Attorney
RECOMMENDED FOR APPROVAL SOUTHWEST GROUP PROPERTIES,LLC,
a California limited liability company �.
!/\1 R �r�` By:
Nabil Saba Naine:AM,," yw,Aiec/2)"
Executive Director Title: Mc<4-oe(
Public Works Agency
-18-
Exhibits:
Exhibit"A"—Legal Description,of the Property
•
Exhibit"B"—Form of Grant Deed
Exhibit"C"—Intended Improvements
• i
1
-19-
gXHIBIT"A"
LEGAL DESCRIPTION OF THE PROPERTY
All right, title and interest of Seller In and to that certain real property located In the City
of Santa Ana,Orange County, California, described in the following exhibit A&B:
[attached behind this page]
•
•
Exhibit A
MIN)Clry.of4snte NIP,County p drange,statepf Nitrate,bal nLollsR,B,RAd spfa
Surveyors Map,par map flied in books pane 12,,of Record of$urueys,in the Office efthe
todntytuhcordef afraid County,
POW* tcial row*amid
County.
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Sub*bctto all t'ovenents,.Can1litions,Resatva4tgps,.t(Mtdtxions,l31nhtstof Wayipdtammetts
Of'i`ice*d,if any.
the•bearins used ttir sr(stol Street It iierth sp Ai"East,perkecoril of unit 2t133,y1WB1
'Filed in book 253,pages i7 through Zk of tpporda of$Wynyalfl.N►q PMce ap ld `.aunty
Racdrder Oforangerounty.
Slips sAp i pn.t l t t;,ettaoihed herero;undllythis ratefan$$node epartbetekt.
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SKETCH TO ACCOMPANY LEGAL DESC RIP1ION
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EXHIBIT"B"
t3RAWF DEED(TO BE EXECUTED)
[attached behind this page]
1
EXHIBIT B •
Grant Deed
Recorded in Official Records,Orange County
RECORDING REQUESTED BY Hugh Nguyen,Clerk Recorder
Commonwealth Land Title Company IIIIII IIIIII OIIfIIIIIII IIIIIIlIIIINIIIIiIIIIIIIIIIIIIIII NO FEE
When worded,please moll tbie * $ R 0 0 1 3 7 4 3 1 0 5 $ *
legit Ant to: 2022000187340 2:42 pm 05119122
Clairol the Gannett 320 CR•SC05 G02 411
Gayer Santa Ana 522.50 522.50 0.00 0.00 9.00 0.00 0.000.000.00 0.00
20 CPAs Center Plane,1340
Sarni Ana,CalIfomto 92701
Free recording requested by
The tDyof Slits Ana par
Government Code Seofhn 0103,27359. eAGEMONTH'S URI FORRecors&rS
use
TAXIS *rrRareD AS TO Ansowasr D2Se*WItON D388110 Al. RMbM MOIL
r9Rl4BYAm. tAACTMR MUM BY CORCXDDOX. MINIM NUMBER NMafER
405452-21&22 Cl
- -
DAAWMAIRItrt
1b01&1607 N.BRISTOL STREET
8735
Title/Escrow e09195204
THE UNDERSIGNED GRANTORS GRANT DEED
DWI ARE:
Documentary UMW Tax is:$1,045.00
❑Unincorporated Area
St.Santa Ana__
FOR VALUABLE CONSIDERATION,receipt of which is hereby acknowledged,
The CITY OF SANTA ANA,a Charter City and Municipal Corporation duly organized under the
Constitution and jaws of the State of California hereby GRANT(s)to:
Southwest Group Properties,LW,the real property in the City Pt Santa Ana,County of Orange.State of
California,described as follows:
See Exhibit"A'attached hereto and by this reference made a part hereof,
. . and as shown on Exhibit"B"attached hereto reference only.
Dated: /N(&022_ By:Kristk(`t�l 6 e dge
• City Manager,City of Santa Ana
Attested by: ilr`-<)..
Dated: ,'q-(N IJ By: \ 1 I
Dafey�Gomez I
City Clerk,City o ante Ana
1 •
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the Identity of the individual •
who signed the document,to which this certificate
is attached,and not the truthfulness,accuracy,or
validity of that document.
State of California
County of Creme
On January 14, 2022 before me Yesenia Cruz, Notary Public
(Insert name and title of the officer)
personally appeared ist e d who proved to me on the basis of satisfactory evidence to be
the persona')whose name)is/ subscribed to the within instrument and acknowledged to me
that W/she/tjd i /ty executed the same In pr/authorized capacity(i ,and that by jis/fter/tfjet
signatures)on the instrument the persor)(s),or the entity upon behalf o which the person/ejected,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
vEsatuuwz
,/r�:.A Notary Puht��nl�ania
Oraa&a
2 �. � CommkatanB22A2S42
:� ^� *comm.ExpIreomy 21,2022
Signatur (Seal)
EXHIBIT"A"
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
LOTS 5 AND 7 ON LICENSED SURVEYOR'S MAP, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, FILED IN BOOK 3, PAGE 12, OF
RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM A STRIP OF LAND, 30 FEET WIDE, OFF THE WEST SIDE OF
SAID LAND, NOW INCLUDED IN BRISTOL STREET.
ALSO EXCEPTING THAT PORTION AS MORE FULLY DESCRIBED AND GRANTED TO
THE CITY OF SANTA ANA BY GRANT DEED RECORDED NOVEMBER 12, 2019, AS
INSTRUMENT NO. 2019000448315, OFFICIAL RECORDS.
PARCEL 2:
LOT 3 ON LICENSED SURVEYOR'S MAP, IN THE CITY OF SANTA ANA, COUNTY OF
ORANGE, STATE OF CALIFORNIA, FILED IN BOOK 3, PAGE 12, OF RECORD OF
SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM A STRIP OF LAND, 30 FEET WIDE, OFF THE WEST SIDE OF
SAID LAND, NOW INCLUDED IN BRISTOL STREET.
ALSO EXCEPTING THAT PORTION AS MORE FULLY DESCRIBED AND GRANTED TO
THE CITY OF SANTA ANA BY GRANT DEED RECORDED NOVEMBER 12, 2019, AS
INSTRUMENT NO. 2019000448315, OFFICIAL RECORDS.
legal rev.(010690)
EXHIBIT •
SKETCH TO A G'- P+4NY LEGAL DEB 4U'i1ON • .
STRAW1 I i
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s
writing
ithi
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1 )°m 9k'R.aipnkg�iPgyD tle I0w1rPft : 14780a 0D5 'L L :1Z233;PR
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STREET R/W PER !NST.. ND 20j90f7p1100 ,1( *OF • • ,,`
1
•
EXHIBIT C
Bristol Centers Grant Deed
Recorded in Official Records,Orange County
Hugh Nguyen,Clerk-Recorder
111111111111111111011111111111111111111111 13.00
RECORDING REQUESTED BY * $ R 0 0 1 3 7 4 3 1 0 6 $ *
Commonwealth Land Title Company20220001873412:42 pm 05119122
RECORDING REQUESTED BY 320 CR-SC05 e02 3
AND WHEN RECORDED MAIL TO: 0.00 0.00 0.00 0.00 0.00 0.00 0.000.000.00 0.00
BRISTOL CENTERS PROPERTIES,LLC
714 S.Plymouth Blvd.
Los Angeles, CA 90005
Attn.:Mr.Mehrdad Houriani
Title/Escrow H09185204 (Above Space For Recorder's Use Only)
THE UNDERSIGNED GRANTORS
DECLARE: The transfer is between individuals and a legal entity or
Documentary TranslerTax is:$0.00 partnership,or between legal entities and does not change
DUnincorporated Area the proportional interests held.Section 11925.
Jr_Santa Ana_
Assessor's Parcel Numbers:405-252-21 AND 405-252.22
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
SOUTHWEST GROUP PROPERTIES, LLC, a California limited liability company
("Grantor"), hereby grants to BRISTOL CENTER PROPERTIES, LLC, a California limited
liability company, that certain real property, located in the City of Santa Ana, County of
Orange, State of California, which is more particularly described on Exhibit"A" attached
hereto and incorporated herein by this reference.
Dated: 5/6/ ,2022 SOUTHWEST GROUP PROPERTIES,LLC,a
California limited liability company
Mehrdad Houriani,Manager
Exempt from fee per GC 27388.1 (a)(2);
recorded concurrently"in connection with"a
transfer subject to the imposition of
documentary transfer tax(DTI).
-1-
4.tB.22 CAB
•
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT .
i --
a NotaryPublic or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
•
•
. •
State of California 1 •
• County of Los An •
geles
On• t 40t y 17 .20 2 2- ,before me, Thoma Han Jung , Notary Public
>„�
personally appeared. ' e k r ei w. 4. • ass TTo N r i ek rt i
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(a) is/are
subscribed to the within instrument and acknowledged to mm that Rohe/they executed the same
in[Eyhs er/their authorized capacity(ies), and that by 0/her/their signature(s) on the instrument
the person(s),or the entity upon behalf of which the person(s)-acted,executed the instrument.
• • I certify under PENALTY OP PERJURY under the laws of State of California that the foregoing
paragraph is true and correct .
.i THOMAS HAN JUNG G
N ' "aigB1555" WITNESS my hand and official soal.`41 Lemma coom CO
My cow.EXP,eta 3,2022 sa
SIGNATURE_
PLACENOTARY SBAL ABOVE . .761417 .
.. Thoughthe information below is reutedbyl itmy.._.ovevaluab..e..t...._.._r...__..ey._.._o_._..ed_.___.___...._.._._„_...
not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document. •
Description of attached document^
Title or type of document: 6j 111 + Dad
Document Date: t) S/ b 6 Number of Pages: ti"
Signer(s)Other than Named Above.
'h .
EXHIBIT"A"
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE,STATE OF CALIFORNIA,DESCRIBED AS FOLLOWS:
PARCEL 1:
LOTS 5 AND 7 ON LICENSED SURVEYOR'S MAP, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, FILED IN BOOK 3, PAGE 12, OF
RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM A STRIP OF LAND, 30 FEET WIDE, OFF THE WEST SIDE OF
SAID LAND,NOW INCLUDED IN BRISTOL STREET.
ALSO EXCEPTING THAT PORTION AS MORE FULLY DESCRIBED AND GRANTED
TO THE CITY OF SANTA ANA BY GRANT DEED RECORDED NOVEMBER 12,2019,
AS INSTRUMENT NO.2019000448315,OFFICIAL RECORDS.
PARCEL 2:
LOT 3 ON LICENSED SURVEYOR'S MAP, IN THE CITY OF SANTA ANA, COUNTY
OF ORANGE, STATE OF CALIFORNIA,FILED IN BOOK 3, PAGE 12, OF RECORD OF
SURVEYS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM A STRIP OF LAND, 30 FEET WIDE, OFF THE WEST SIDE OF
SAID LAND,NOW INCLUDED IN BRISTOL STREET.
ALSO EXCEPTING THAT PORTION AS MORE FULLY DESCRIBED AND GRANTED
TO THE CITY OF SANTA ANA BY GRANT DEED RECORDED NOVEMBER 12,2019,
AS INSTRUMENT NO.2019000448315,OFFICIAL RECORDS.
Assessor's Parcel Numbers:405-252-21 AND 405-252-22
•
-3-
4.18.22 CAB