HomeMy WebLinkAboutSTEADFAST 1 -2005
A-2005-309
LAND EXCHANGE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
This Land Exchange Agreement and Joint Escrow Instructions ("Agreement") is made as of this
6th day of September, 2005, by and between the City of Santa Ana, a charter city duly organized
under the Constitution and laws ofthe State of California ("City"), and Steadfast Courtyards,
L.P., a California limited partnership ("Steadfast").
RECITALS
A. City is the owner of that certain real property located in the City of Santa Ana,
County of Orange, State of California, bearing Assessors Parcel Numbers 002-162-05, 002-162-
06,002-162-07,002-162-30,002-162-31, 002-162-32, 002-162-33 and 002-162-34, as more
particularly described on Exhibit A attached hereto (together with (i) all rights, easements,
privileges, tenements, hereditaments, appurtenances, reversions, remainders, licenses and
benefits appurtenant, belonging to or running with said land, and (ii) all right, title and interest of
Seller in and to the areas lying beneath any street, road or highway abutting or adjoining said
land, herein, collectively, the "City Land").
B. Steadfast is the owner of that certain real property located in the City of Santa
Ana, County of Orange, State of California, bearing Assessors Parcel Numbers 399-102-5, 399-
102-06 and 399-102-07, as more particularly described on Exhibit B attached hereto (together
with (i) all rights, easements, privileges, tenements, hereditaments, appurtenances, reversions,
remainders, licenses and benefits appurtenant, belonging to or running with said land, and (ii) all
right, title and interest of Seller in and to the areas lying beneath any street, road or highway
abutting or adjoining said land, herein, collectively, the "Steadfast Land").
C. City desires to acquire the Steadfast Property (as defined in Schedule 1 to this
Agreement) and Steadfast desires to acquire the City Property (as defined in Schedule 1 to this
Agreement).
D. The purpose of this Agreement is to provide and establish the terms and
conditions pursuant to which Steadfast will convey the Steadfast Property to City and City will
convey the City Property to Steadfast.
E. The City has been authorized by action of the City Council ofthe City of Santa
Ana pursuant to 2-710 of the Santa Ana Municipal Code, to directly negotiate with Steadfast on
the terms and conditions of the exchange of the City Property for the Steadfast Property.
F. Unless otherwise indicated, defined terms shall have the definitions provided in
Schedule 1 to this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, Steadfast and
City agree as follows:
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AGREEMENT
1. Exchange Agreement. If and when the Conditions Precedent are satisfied,
(i) City shall convey to Steadfast the City Property, and Steadfast shall accept such conveyance
and (ii) Steadfast shall convey to City the Steadfast Property and City shall accept such
conveyance.
2. Consideration. Consideration for Steadfast's conveyance of the Steadfast
Property to City shall be the conveyance of the City Property to Steadfast. Consideration for
City's conveyance of the City Property to Steadfast shall be (i) the conveyance of the Steadfast
Property to City, (ii) the demolition of the improvements and site structures located Steadfast
Land, and (iii) the payment of the sum of$750,000.00 ("Parking Lot Payment"), which shall
be paid in accordance with the terms hereof and shall be used exclusively for payment of the
costs incurred by City in constructing the Parking Lot.
(a) Parking Lot Payment. Not later than three (3) Business Days after
the Opening of Escrow, Steadfast shall pay a portion of the Parking Lot Payment equal to
$500,000.00 directly to the City. Steadfast shall pay the balance ofthe Parking Lot Payment in
accordance with the provisions of Section 3( d)(ii)(F) hereof.
(b) Bowers License. Concurrently with the execution of this
Agreement, Steadfast and The Bowers Museum shall enter into a license agreement ("Bowers
License Agreement") pursuant to which Steadfast shall provide Bowers with a license to use
portions of 21 00 N. Main as a staging area and for such other purposes described therein. The
Bowers License Agreement shall be substantially in the same form as the license agreement
attached hereto as Exhibit G, and shall permit the activities set forth therein.
3. Escrow.
(a) Escrow Holder. This Agreement shall also constitute joint escrow
instructions to Escrow Holder. Within five (5) Business Days after the Execution Date, the
Parties shall open Escrow for the purpose of exchanging the Steadfast Property and the City
Property (collectively, "Properties") on the terms and conditions set forth in the Agreement.
The Parties agree to execute such additional escrow instructions as Escrow Holder shall
reasonably request; provided that in the event of conflict between such instructions and this
Agreement, this Agreement shall in all events control.
(b) Citv Escrow. Title and Other Expenses. City shall pay one halfof
the Escrow fees charged by Escrow Holder in connection with this transaction, title insurance
premiums for the City Title Policy, City's share of prorations with respect to the City Property
and the Steadfast Property, as provided in Article 11 below, all state and county transfer taxes
pertaining to the City Property, and any document recording charges and notary fees incurred in
conjunction with the conveyance of the City Property to Steadfast, including without limitation,
any recording fees and notary charges with respect to the City Deed.
(c) Steadfast Escrow. Title and Other Expenses. Steadfast shall pay
one half of the Escrow fees charged by Escrow Holder in connection with this transaction, all
title insurance premiums for the Steadfast Title Policy, Steadfast's share of prorations with
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respect to the Steadfast Property and the City Property, as provided in Article 11 below, all state
and county transfer taxes pertaining to the Steadfast Property, and any document recording
charges and notary fees incurred in conjunction with the conveyance of the Steadfast Property to
City, including without limitation, any recording fees and notary charges with respect to the
Steadfast Deed.
(d) Deposits into Escrow. The Parties shall make or cause to be made
the following deposits into Escrow by delivering the following items to Escrow Holder:
(i) Deposits bv Citv. At least two (2) Business Days prior to
the Closing Date, City shall deliver or cause to be delivered the following items with Escrow
Holder:
notary public;
(A) The City Deed, executed by City and notarized by a
(B) City's Transferor's Certificate, fully executed;
(C) Funds sufficient to cover City's share of prorations,
closing costs and expenses pursuant to this Agreement;
(D) Four (4) original counterparts of the Steadfast
General Assignment (as defined below), duly executed by City; and
(E) Four original versions of a lease agreement ("City
Lease Agreement") duly executed on behalf of the City, pursuant to which Steadfast shall
provide City with the right to use portions of the City Land for such purposes described therein.
The City Lease Agreement shall be substantially in the same form as the lease agreement
attached hereto as Exhibit I, and shall permit the activities set forth therein.
(ii) Deposits bv Steadfast. At least two (2) Business Days prior
to the Closing Date, Steadfast shall deliver or cause to be delivered the following items with
Escrow Holder:
notarized by a notary public;
(A) The Steadfast Deed, executed by Steadfast and
(B) Steadfast's Transferor's Certificate, fully executed;
(C) Four (4) original counterparts ofa general
assignment substantially in the form attached hereto as Exhibit E ("Steadfast General
Assignment"), duly executed by Steadfast, assigning to City all Intangible Property (as
described therein) with respect to the Steadfast Land;
(D) Funds sufficient to cover Steadfast's share of
prorations, closing costs and expenses pursuant to this Agreement;
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(E) Four original versions of the City Lease Agreement,
duly executed on behalf of the Steadfast dated on its first page as being made as ofthe date of
Closing; and
(F) Funds sufficient to pay the balance of the Parking
Lot Payment to the City.
(iii) Deposits bv Both Parties. Any other information,
documents or instruments which Escrow Holder and Title Company reasonably request from the
Parties in order to complete the close of Escrow.
4. Conditions Precedent. The close of Escrow shall be conditioned upon the
following conditions precedent ("Conditions Precedent"):
(a) Steadfast Conditions Precedent. Steadfast shall have no obligation
to convey the Steadfast Property to City until the following conditions have been satisfied or
waived by Steadfast. Once such conditions have been satisfied or waived by Steadfast, Steadfast
shall deliver to Escrow Holder written confirmation that all Conditions Precedent in Steadfast's
favor pursuant to this Section 4(a) have been satisfied or waived.
(i) Final Approval shall have occurred and the Entitlements
shall have been received.
been satisfied or waived.
(ii) The contingencies set forth in Article 7 below shall have
(iii) City shall have timely delivered all of the items described
in Section 3( d)(i) above.
(iv) Escrow Holder shall be in a position to issue at the close of
Escrow to Steadfast a policy of title insurance in the form of the ALTA (Form 1970 B) owner's
policy showing Steadfast as the owner of the City Land having title insurance coverage in the
amount of $2,500,000 subject only to liens for real property taxes and assessments not yet due
and payable and to the City Permitted Exceptions.
(v) City shall have formally accepted the Steadfast Property in
accordance with all applicable procedures, ordinances, laws, and regulations that have been
adopted by or imposed on the City, including but not limited to the passage of any resolution or
the adoption of any ordinance that may be necessary to evidence such acceptance.
(b) Citv Conditions Precedent. City shall have no obligation to
convey the City Property to Steadfast until the conditions listed below have been satisfied or
waived by City. Once such conditions have been satisfied or waived, City shall deliver to
Escrow Holder written confirmation that all Conditions Precedent in City's favor pursuant to this
Section 4(b) have been satisfied or waived.
(i) Steadfast shall have timely delivered all of the items
described in Section 3( d)(ii) hereof.
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or waived.
(ii) The contingencies set forth in Article 6 have been satisfied
(iii) Escrow Holder shall be in a position to issue at the close of
Escrow to City an ALTA (Form 1970 B) owner's policy oftitle insurance showing City as the
owner of the Steadfast Land having coverage in the amount of $2,500,000.00, subject only to
liens for real property taxes and assessments not yet due and payable and the Steadfast Permitted
Exceptions.
5. Closing.
(a) In General. When (i) Steadfast has provided Escrow Holder with
written confirmation that all Conditions Precedent in Steadfast's favor, as set forth in
Section 4( a) hereof, have been satisfied or waived, (ii) City has provided Escrow Holder with
written confirmation that all Conditions Precedent in City's favor, as set forth in Section 4(b)
hereof have been satisfied or waived, (iii) each Party has deposited in Escrow all of the funds and
documents required to be deposited in Escrow by it pursuant to Section 3(d), (iv) each of the
Parties has approved or waived each of the contingencies in its favor set forth in Article 6 and
Article 7 below, and (v) Escrow Holder is otherwise in a position to close Escrow, Escrow
Holder shall close Escrow by dating all undated documents as ofthe Closing Date and shall do
the following in the following order:
(i) Record the City Deed in the Official Records and cause the
original thereof to be returned to Steadfast following recordation.
(ii) Record the Steadfast Deed in the Official Records and
cause the original thereofto be returned to City following recordation.
pursuant to this Agreement.
(iii) Pay all closing costs required to be paid by the Parties
(iv) Deliver an appropriate escrow closing statement to each
Party together with funds, in the amount ofthe net credit, if any, due to each such Party by virtue
of the final prorations provided for in this Agreement.
(v) Deliver to Steadfast a conformed copy of the City Deed,
the original City Transferor's Certificate, two (2) originals ofthe title insurance policies for the
City Land as described in Section 4(a)(iv), two (2) original counterparts of the Steadfast General
Assigrunent and copies of any other documents delivered into Escrow by City.
(vi) Deliver to City a conformed copy of the Steadfast Deed,
the original Steadfast Transferor's Certificate, two (2) originals ofthe title insurance policies for
the Steadfast Land as described in Section 4(b )(iii) above, and copies of any other documents
delivered into Escrow by Steadfast.
(b) Deliverv of Possession of City Property. Upon the expiration or
earlier termination of the City Lease Agreement, City shall deliver possession of the City
Property to Steadfast. Concurrently therewith, City shall deliver to Steadfast copies or originals
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of all licenses, permits, entitlements, environmental documentation, reports, surveys, plans,
specifications, warranties and other intangible property owned by City and relating to the City
Property. This Section 5(b) shall survive the Close of Escrow.
(c) Deliverv of Possession of Steadfast Propertv. Simultaneously with
the Closing, Steadfast shall deliver possession of the Steadfast Property to City, subject to the
agreements with The Bowers Museum referenced in Article 10 hereof. Concurrently therewith,
Steadfast shall deliver to City copies or originals of all licenses, permits, entitlements,
environmental documentation, reports, surveys, plans, specifications, warranties and other
intangible property owned by Steadfast and relating to the Steadfast Property.
6. Citv Due Diligence. City shall have, at its own expense, the opportunity
to complete the following due diligence review of the Steadfast Property:
(a) Title Review. Steadfast, at its expense and within ten (10)
Business Days after the date hereof shall cause to be delivered to City a current preliminary title
report covering the Steadfast Land issued by Title Company, together with legible copies of all
documents reflected as exceptions to title to the Steadfast Land (collectively, the "Steadfast
Preliminary Report"). Steadfast, at its expense and within five (5) Business Days after the date
of issuance of any supplemental title report showing additional exceptions to title shall cause to
be delivered to City a copy thereof, together with legible copies of all documents reflected
therein as new exceptions to title to the Steadfast Land (collectively, the "Steadfast
Supplemental Report"). Not later than ten (10) Business Days after the later to occur of the
Execution Date or the date of the delivery to City of the Steadfast Preliminary Report (or any
Steadfast Supplemental Report, as applicable), City shall notify Steadfast in writing of any
objections which City has to the exceptions to title reflected in the Steadfast Preliminary Report
(or such Steadfast Supplemental Report, as applicable), and Steadfast shall have the right, but not
the obligation, to elect to clear such disapproved exceptions prior to the Closing. In the event
that City fails to provide such notice in a timely manner, City shall be deemed to have approved
all exceptions in the Steadfast Preliminary Report except those pertaining to installments of real
property taxes and assessments not delinquent as of the Closing. Steadfast shall make such
election by delivering written notice of such election to City within five (5) Business Days after
receipt of any such obj ection. Steadfast will be deemed not to have elected to clear a
disapproved exception unless Steadfast provides a timely notice in accordance with the
immediately preceding sentence. If Steadfast's written notice indicates that it elects to clear less
than all of the such disapproved exceptions prior to the Closing, then City shall have the right to
terminate this Agreement by providing written notice of such termination to Escrow Holder and
Steadfast no later than five (5) Business days after City's receipt of Steadfast's written notice.
Upon such notice of termination, this Agreement shall be terminated, Escrow shall be
terminated, City and Steadfast shall each pay one-half (Yz) of any Escrow or Title Company
termination fees, and neither Party shall have any further liability or obligation hereunder except
for the Parties' indemnification obligations set forth herein, which shall survive the termination
ofthis Agreement. If City fails to deliver to such notice of termination in a timely manner, then
City shall be deemed to have approved all disapproved exceptions that Steadfast has elected not
to clear. Except for (i) liens which Steadfast is obligated to remove pursuant to the last sentence
ofthis paragraph, and (ii) those exceptions, if any, to which City has timely objected and
Steadfast timely elected to clear, all exceptions to title shown in the Steadfast Preliminary Report
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(and any Steadfast Supplemental Report) shall be referred to as "Steadfast Permitted
Exceptions." Steadfast shall in any event be required to discharge and remove any and all liens
affecting the Steadfast Land which secure an obligation to pay money (other than installments of
real property taxes and assessments not delinquent as of the Closing).
(b) Reports and Appraisals. Steadfast shall provide City with any and
all appraisals, reports, and results of any investigations that are in Steadfast's possession and
control, including, but not limited to, any and all environmental audits in Steadfast's possession
and control, as of the date on which this Agreement is executed. Such appraisals, reports and
results shall be provided to City within ten (10) days after the Execution Date. In the event that
Steadfast acquires additional appraisals, reports or results after the date on which this Agreement
is executed, Steadfast shall provide such items to City such within fifteen (15) days after
Steadfast has received them.
( c) Inspection bv Citv . City and its designees and consultants shall
have the right to enter and inspect the Steadfast Property. City shall provide Steadfast at least
one Business Day's prior notice to access the Steadfast Property. Such inspections may include,
without limitation, an environmental investigation (including, without limitation, subsurface
borings and samplings) and any and all other investigations, inspections and other due diligence
activities that City deems appropriate, in its sole and absolute discretion. At least one (I)
Business Day prior to initial entry on the Steadfast Property by City, its designees, agents,
employees, consultants, contractors or subcontractors, as applicable, City shall deliver to
Steadfast certificates or other written confirmation satisfactory to Steadfast showing that (i) City
has in effect a comprehensive general public liability insurance policy including, but not limited
to, owned and non-owned vehicle liability, personal injury, blanket contractual, broad form
property damage liability coverage covering any and all liability of City with respect to or arising
out of any work to be performed by City under this Agreement with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property
damage liability, and (ii) Steadfast has been named as an additional insured on such insurance
policies (except with respect to the workers' compensation policy). City agrees that any and all
Inspections of the Steadfast Property shall be made at City's sole risk and without unreasonable
interference with Steadfast's operations. City agrees to keep the Steadfast Property free and clear
of any liens resulting from any such Inspections. City covenants and agrees that the foregoing
insurance requirements shall also apply to and cover any and all entry and activities that may be
conducted on the Steadfast Property by the City, its designees, agents, employees, consultants,
contractors and subcontractors in conjunction with the Parking Lot construction prior to the
Closing Date.
(d) Citv's Indemnification. City shall hold harmless, defend and
indemnify Steadfast from all liability, costs (including, without limitation, reasonable attorneys'
fees), damages and claims arising from entry and/or activities on the Steadfast Property by City,
its designees, agents, employees, consultants, contractors and subcontractors, including, but not
limited to any and all entry and activities that may be conducted on the Steadfast Property by the
City, its designees, agents, employees, consultants, contractors and subcontractors in conjunction
with the Parking Lot construction prior to the Closing Date. Excluded from this indemnification
and hold harmless are any liability, costs, damage or claims (including, without limitation,
claims that the Steadfast Property has declined in value) which are related to (A) pre-existing
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adverse conditions affecting the Steadfast Property, (B) the negligence or willful misconduct of
Steadfast, its agents, employees and contractors, or (C) City's discovery of any information
potentially having a negative impact on the Steadfast Property (including, without limitation, any
claims arising out of, resulting from, or incurred in connection with the discovery of any
Hazardous Materials on or about the Steadfast Property, unless such Hazardous Materials arose
from the entry and/or activities by City, its agents, employees and contractors). This provision
shall app I y to
7. Steadfast Due Diligence. Steadfast shall have, at its own expense, the
opportunity to complete the following due diligence review of the City Property:
(a) Title Review. City, at its expense and within ten (10) Business
Days after the date hereof shall cause to be delivered to Steadfast a current preliminary title
report covering the City Land issued by Title Company, together with legible copies of all
documents reflected as exceptions to title to the City Land (collectively, the "City Preliminary
Report"). City, at its expense and within five (5) Business Days after the date of issuance of any
supplemental title report showing additional exceptions to title shall cause to be delivered to
Steadfast a copy thereof, together with legible copies of all documents reflected therein as new
exceptions to title to the City Land (collectively, the "City Supplemental Report"). Not later
than ten (10) Business Days after the later to occur of the Execution Date or the date of the
delivery to delivery to Steadfast of the City Preliminary Report (or any City Supplemental
Report, as applicable), Steadfast shall notify City in writing of any objections which Steadfast
has to the exceptions to title reflected in the City Preliminary Report (or such City Supplemental
Report, as applicable), and City shall have the right, but not the obligation, to elect to clear such
disapproved exceptions prior to the Closing. In the event that Steadfast fails to provide such
notice in a timely manner, Steadfast shall be deemed to have approved all exceptions in the City
Preliminary Report except those pertaining to installments of real property taxes and assessments
not delinquent as of the Closing. City shall make such election by delivering written notice of
such election to Steadfast within five (5) Business Days after receipt of any such objection. City
will be deemed not to have elected to clear a disapproved exception unless City provides a timely
notice in accordance with the immediately preceding sentence. If City's written notice indicates
that it elects to clear less than all ofthe such disapproved exceptions prior to the Closing, then
Steadfast shall have the right to terminate this Agreement by providing written notice of such
termination to Escrow Holder and City no later than five (5) Business days after Steadfast's
receipt of City's written notice. Upon such notice of termination, this Agreement shall be
terminated, Escrow shall be terminated, City and Steadfast shall each pay one-half (\I,) of any
Escrow or Title Company termination fees, and neither Party shall have any further liability or
obligation hereunder except for the Parties' indemnification obligations set forth herein, which
shall survive the termination of this Agreement. If Steadfast fails to deliver to such notice of
termination in a timely manner, then Steadfast shall be deemed to have approved all disapproved
exceptions that City has elected not to clear. Except for (i) liens which City is obligated to
remove pursuant to the last sentence of this paragraph, and (ii) those exceptions, if any, to which
Steadfast has timely objected and City timely elected to clear, all exceptions to title shown in the
City Preliminary Report (and any City Supplemental Report) shall be referred to as "City
Permitted Exceptions." City shall in any event be required to discharge and remove any and all
liens affecting the City Land which secure an obligation to pay money (other than installments of
real property taxes and assessments not delinquent as of the Closing).
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(b) Reports and Appraisals. City shall provide Steadfast with any and
all appraisals, reports, and results of any investigations that are in City's possession and control,
including, but not limited to, any and all enviromnental audits in City's possession and control,
as of the date on which this Agreement is executed. Such appraisals, reports and results shall be
provided to Steadfast within ten (10) days after the Execution Date. In the event that City
acquires additional appraisals, reports or results after the date on which this Agreement is
executed, City shall provide such items to Steadfast such within fifteen (15) days after City has
received them.
(c) Inspection bv Steadfast. Steadfast and its designees and consultants
shall have the right to enter and inspect the City Property. Steadfast shall provide City at least
one Business Day's prior notice to access the City Property. Such inspections may include,
without limitation, an enviromnental investigation (including, without limitation, subsurface
borings and samplings) and any and all other investigations, inspections and other due diligence
activities that Steadfast deems appropriate, in its sole and absolute discretion. At least one (1)
Business Day prior to initial entry on the City Property by Steadfast, its designees, agents,
employees, consultants, contractors or subcontractors, as applicable, Steadfast shall deliver to
City certificates or other written confirmation satisfactory to City showing that (i) Steadfast has
in effect a comprehensive general public liability insurance policy including, but not limited to,
owned and non-owned vehicle liability, personal injury, blanket contractual, broad form property
damage liability coverage covering any and all liability of Steadfast with respect to or arising out
of any work to be performed by Steadfast under this Agreement with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property
damage liability, and (ii) City has been named as an additional insured on such insurance policies
(except with respect to the workers' compensation policy). Steadfast agrees that any and all
Inspections of the City Property shall be made at Steadfast's sole risk and without umeasonable
interference with City's operations. Steadfast agrees to keep the City Property free and clear of
any liens resulting from any such Inspections.
(d) Steadfast's Indemnification. Steadfast shall hold harmless, defend
and indemnify City from all liability, costs (including, without limitation, reasonable attorneys'
fees), damages and claims arising from entry and/or activities on the City Property by Steadfast,
its designees, agents, employees, consultants, contractors and subcontractors. Excluded from
this indemnification and hold harmless are any liability, costs, damage or claims (including,
without limitation, claims that the City Property has declined in value) which are related to
(A) pre-existing adverse conditions affecting the City Property, (B) the negligence or willful
misconduct of City, its agents, employees and contractors, or (C) Steadfast's discovery of any
information potentially having a negative impact on the City Property (including, without
limitation, any claims arising out of, resulting from or incurred in connection with the discovery
of any Hazardous Materials on or about the City Property, unless such Hazardous Materials
arose from the entry and/or activities by Steadfast, its agents, employees and contractors).
8. Representations and Warranties.
(a) Steadfast's Representations and Warranties. Steadfast makes the
following representations and warranties to City, upon which warranties and representation City
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has relied and will continue to rely, all of which are true as ofthe date of this Agreement and will
be true and correct as of and shall survive the Closing:
(i) Organization. Steadfast is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of California. The
execution and delivery of this Agreement and the other documents contemplated by this
Agreement by Steadfast, and the performance by Steadfast of the obligations under this
Agreement: (i) are within the power of Steadfast; and (ii) will not violate any provision of law,
any order of any court or agency of government, the laws and ordinances governing Steadfast, or
any indenture, agreement or any other instrument to which Steadfast is a party. This Agreement,
and each of the documents described in this Agreement, when executed and delivered to City,
will constitute legal, valid and binding obligations enforceable against Steadfast in accordance
with the terms of such documents.
(ii) Non-Foreign. Person. Steadfast is not a "foreign person" as
that term is defined in Section 1445(f) of the Internal Revenue Code and the applicable
provisions of the applicable state, if any, and the regulations issued thereunder, as amended, or
any successor thereto.
(iii) No Prior Transfers of Steadfast Property. Steadfast has not
transferred, by sale, assignment or otherwise, to any person, partnership, corporation or other
entity, all or any portion of any right, title or interest which it may have in and to the Steadfast
Property.
(iv) Agreements. Except as may be expressly disclosed by
Steadfast in writing, other than this Agreement and any matter shown on the Steadfast
Preliminary Report, there are no contracts for deed, land contracts or any oral or written
agreements or other executory agreements whatsoever for the assignment or transfer of any
portion of the Steadfast Property in effect or in existence with respect to the Steadfast Property.
Except as may be expressly disclosed by Steadfast in writing or as disclosed in the title
documents described in the Steadfast Preliminary Report, to Steadfast's actual knowledge, there
are no oral or written agreements or executory agreements whatsoever for the use and occupancy
of the Steadfast Property and there are no tenants or occupants of the Steadfast Property. Except
as may be expressly disclosed by Steadfast in writing or as disclosed in the title documents
described in the Steadfast Preliminary Report, there are no management, service, maintenance,
advance booking, employment or brokerage agreements, obligations, commitments or
arrangements, written or oral, with respect to the sale ofthe Steadfast Property.
(v) No Litigation. To Steadfast's actual knowledge, there is no
actual or threatened suit, action or legal, administrative, arbitration or other proceeding or
governmental investigation involving or affecting the Steadfast Property.
(vi) Compliance with Agreements. The execution and delivery
of, and performance under this Agreement has not and will not constitute a breach or default
under any other agreement, law or court order under which Steadfast is a party and which affects
the Steadfast Property or the use, occupancy or operation of the Steadfast Property. Steadfast is
not in default under any agreement or commitment to which it is a party, the effect of which
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default could adversely affect the performance by Steadfast of its obligations under this
Agreement. To Steadfast's actual knowledge, no default exists under any covenant, restriction or
agreement related to or affecting the Steadfast Property.
(vii) Hazardous Materials. To Steadfast's actual knowledge,
Steadfast has not received notice of any order, directive, complaint or other communication,
written or oral, by any governmental or quasi-governmental agency nor has Steadfast received a
notice from any other third party, nor does Steadfast know (i) of the existence of Hazardous
Materials in, on or under the Steadfast Property, (ii) of any present Release or threatened Release
of any Hazardous Materials in, on or under the Steadfast Property, (iii) of the existence of any
underground or above ground storage tanks, or (iv) of any violation of Environmental Laws.
(viii) Insolvencv. There are no attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or
other proceedings pending or threatened against Steadfast, nor are any such proceedings
contemplated by Steadfast.
(ix) Condemnation Proceedings. Steadfast has received no
notice of any condemnation or eminent domain proceeding pending or threatened against the
Steadfast Property or any part thereof.
(x) Steadfast's Actual Knowledge. As used herein, the phrase
"Steadfast's actual knowledge" means the actual present knowledge of Kristin Proctor, without
duty of inquiry.
(b) Citv's Representations and Warranties. City makes the following
representations and warranties to Steadfast, upon which warranties and representation Steadfast
has relied and will continue to rely, all of which are true as of the date ofthis Agreement and will
be true and correct as of and shall survive the Closing:
(i) Organization. City is a charter city duly organized under
the Constitution and laws of the State of California. The execution and delivery of this
Agreement and the other documents contemplated by this Agreement by City, and the
performance by City of the obligations under this Agreement: (i) are within the power of City;
(ii) have been duly authorized by all requisite action; and (iii) will not violate any provision of
law, any order of any court or agency of government, the Charter of City, or any indenture,
agreement or any other instrument to which City is a party. This Agreement, and each of the
documents described in this Agreement, when executed and delivered to Steadfast, will
constitute legal, valid and binding obligations enforceable against City in accordance with the
terms of such documents.
(ii) Non-foreign Person. City is not a "foreign person" as that
term is defined in Section 1445(f) of the Internal Revenue Code and the applicable provisions of
the applicable state, if any, and the regulations issued thereunder, as amended, or any successor
thereto.
(iii) No Prior Transfers of Citv Propertv. City has not
transferred, by sale, assignment or otherwise, to any person, partnership, corporation or other
40836735. 16
11
entity, all or any portion of any right, title or interest which it may have in and to the City
Property.
(iv) Agreements. Except as may be expressly disclosed by City
in writing, other than this Agreement and any matter shown on the City Preliminary Report,
there are no contracts for deed, land contracts or any oral or written agreements or other
executory agreements whatsoever for the assigrunent or transfer of any portion(s) of the City
Property in effect or in existence with respect to the City Property. Except as may be expressly
disclosed by City in writing or as disclosed in the title documents described in the City
Preliminary Report, to City's actual knowledge, there are no oral or written agreements or
executory agreements whatsoever for the use and occupancy of the City Property and there are
no tenants or occupants of the City Property. Except as may be expressly disclosed by City in
writing or as disclosed in the title documents described in the City Preliminary Report, there are
no management, service, maintenance, advance booking, employment or brokerage agreements,
obligations, commitments or arrangements, written or oral, with respect to the City Property.
(v) No Litigation. To City's actual knowledge, there is no
actual or threatened suit, action or legal, administrative, arbitration or other proceeding or
governmental investigation involving or affecting the City Property.
(vi) Compliance with Agreements. The execution and delivery
of, and performance under this Agreement has not and will not constitute a breach or default
under any other agreement, law or court order under which City is a party and which affects the
City Property or the use, occupancy or operation ofthe City Property. City is not in default
under any agreement or commitment to which it is a party, the effect of which default could
adversely affect the performance by City of its obligations under this Agreement. To City's
actual knowledge, no default exists under any covenant, restriction or agreement related to or
affecting the City Property.
(vii) Hazardous Materials. To City's actual knowledge, City has
not received notice of any order, directive, complaint or other communication, written or oral, by
any governmental or quasi-governmental agency nor has City received a notice from any other
third party nor does City know (i) ofthe existence of Hazardous Materials in, on or under the
City Property, (ii) of any present Release or threatened Release of any Hazardous Materials in,
on or under the City Property, (iii) of the existence of any underground or above ground storage
tanks, or (iv) of any violation of Environmental Laws.
(viii) Insolvencv. There are no attachments, execution
proceedings, assigrunents for the benefit of creditors, insolvency, bankruptcy, reorganization or
other proceedings pending or threatened against City, nor are any such proceedings contemplated
by City.
(ix) Condemnation Proceedings. City has received no notice of
any condemnation or eminent domain proceeding pending or threatened against the City
Property or any part thereof.
40836735. 16
12
(x) Citv's Actual Knowledge. As used herein, the phrase
"City's actual knowledge" means the actual present knowledge of Patricia C. Whitaker,
Executive Director, Community Development Agency of the City of Santa Ana, without duty of
inquiry.
9. As-Is Provisions.
(a) Citv Propertv. STEADFAST SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT CITY IS TRANSFERRING AND STEADFAST IS
ACQUIRING THE CITY PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND
THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STEADFAST IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM CITY AS TO ANY MATTERS
CONCERNING THE CITY PROPERTY. THIS AS-IS PROVISION SHALL SURVIVE THE
CLOSING.
STEADFAST EXPRESSLY WAIVES ANY OF ITS RIGHTS GRANTED UNDER
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MA TERIALL Y AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT EXTEND OR
OTHERWISE APPLY TO ANY CLAIM ARISING FROM CITY'S FRAUD OR WILLFUL
MISCONDUCT.
u
fast's Initials
(b) Steadfast Propertv. CITY SPECIFICALLY ACKNOWLEDGES
AND AGREES THAT STEADFAST IS TRANSFERRING AND CITY IS ACQUIRING THE
STEADFAST PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND THAT,
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CITY IS NOT RELYING
ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, FROM STEADFAST AS TO ANY MATTERS CONCERNING THE
STEADFAST PROPERTY. THIS AS-IS PROVISION SHALL SURVNE THE CLOSING.
CITY WANES ANY OF ITS RIGHTS GRANTED UNDER CALIFORNIA CNIL CODE
SECTION 1542, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
40836735. 16
13
NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT EXTEND OR
OTHERWISE APPLY TO ANY CLAIM ARISING FROM STEADFAST'S FRAUD OR
WILLFUL MISCONDUCT.
fH<
City's Initials
10. Additional Pre- and Post-Closing Obligations.
(a) Steadfast's Obligations. Steadfast hereby covenants to City, upon
which covenants City has relied and will continue to rely, that for the period from the date of this
Agreement through and including the Closing Date or the earlier termination of this Agreement:
(i) Further Liens and Encumbrances. Steadfast will not
subject the Steadfast Property to any additional liens, encumbrances, covenants, conditions,
easements, rights of way or similar matters after the date of this Agreement other than the
agreements with The Bowers Museum. Steadfast will not hereafter modify, extend, renew,
replace or otherwise change any of the terms, covenants or conditions of any of such documents,
or enter into any new agreements affecting the Steadfast Property without the prior written
consent of City, which consent shall not be unreasonably withheld.
(ii) Other Contracts. Unless required with respect to the
demolition described in Section I O( a)(ix) below, Steadfast will not hereafter enter into any leases
or contracts that will survive the Closing and affect the Steadfast Property.
(iii) Materials. Labor and Supplies. Steadfast will execute any
affidavits, waivers, sworn statements or indemnities that may reasonably be required by the Title
Company in order to allow the Title Company to issue the City Title Policy without any
exceptions relating to mechanics' or materialmen's liens.
(iv) Compliance with Laws. Steadfast shall materially comply
with all Governmental Regulations pertaining to the Steadfast Property.
(v) Cooperation with Representatives. Steadfast shall
cooperate with City and its accountants, counsel and/or other representatives in providing
information and materials pertaining to the Steadfast Property. Without limiting the generality of
the foregoing, promptly following the Opening of Escrow, Steadfast shall (a) allow a
representative or representatives of City access to the Steadfast Property for the purpose of
performing such investigations and analyses of the Steadfast Property as City may reasonably
require, and (b) deliver (or make available to City at Steadfast's business offices during normal
business hours) copies of all documents relating to Steadfast's ownership and/or operation of the
Steadfast Property, including, without limitation, copies of any licenses, permits, records, plans,
agreements, leases, service contracts, equipment leases, tax bills and title documents.
(vi) Insurance. Steadfast shall maintain in full force and effect
policies of liability insurance for the Steadfast Property for the period through and including the
Closing Date.
40836735. 16
14
(vii) Representations and Warranties. All representations and
warranties made by Steadfast pursuant to Section 8(a) shall be true and correct as of the Closing
Date.
(viii) Entitlements. Steadfast shall use its commercially
reasonable efforts to promptly and efficiently process the Entitlements.
(ix) Demolition of Improvements on Steadfast Land. On or
prior to the Closing Date, Steadfast shall commence and diligently process until completion (a)
the demolition of the building and all site structures (e.g. walls, retaining walls, etc.), including
the foundation and footings thereof, located on the Steadfast Land, (b) the removal of the
resulting debris from such demolition, ( c) the capping or closing off of the existing site utilities
located at Steadfast Land, (d) the removal ofthe existing asphalt and concrete paving, and (e) the
grading of the site to a flat but non-compacted and non-certified state.
(b) Citv's Obligations. City hereby covenants to Steadfast, upon
which covenants Steadfast has relied and will continue to rely, that for the period from the date
of this Agreement through and including the Closing Date:
(i) Further Liens and Encumbrances. With the exception of the
City Lease Agreement, City shall not subject the City Property to any additional liens,
encumbrances, covenants, conditions, easements, rights of way or similar matters after the date
ofthis Agreement that will in any way affect Steadfast's rights to possess, use or enjoy the City
Property following the Closing Date. With the exception of the City Lease Agreement, City will
not hereafter modify, extend, renew, replace or otherwise change any ofthe terms, covenants or
conditions of any of such documents, or enter into any new agreements affecting the City
Property without the prior written consent of Steadfast, which consent shall not be unreasonably
withheld.
(ii) Other Contracts. With the exception of the City Lease
Agreement, City will not hereafter enter into any leases or contracts that will survive Closing and
will affect the City Property.
(iii) Materials, Labor and Supplies. City will execute any
affidavits, waivers, sworn statements or indemnities that may reasonably be required by the Title
Company in order to allow the Title Company to issue the Title Policy without any exceptions
relating to mechanics or materialmen's liens.
(iv) Cooperation with Representatives. City shall cooperate
with Steadfast and its accountants, counsel and/or other representatives in providing information
and materials pertaining to the City Property. Without limiting the generality of the foregoing,
promptly following the Opening of Escrow, City shall (a) allow a representative or
representatives of Steadfast access to the City Property for the purpose of performing such
investigations and analyses of the City Property as Steadfast may reasonably require, and
(b) deliver (or make available to Steadfast at City's business offices during normal business
hours) copies of all documents relating to City's ownership and/or operation ofthe City
40836735. 16
15
Property, including, without limitation, copies of any licenses, permits, records, plans,
agreements, leases, service contracts, equipment leases, tax bills and title documents.
(v) Insurance. City shall maintain in full force and effect
policies of liability insurance or a program of self-insurance for the City Property for the period
through and including the Closing Date.
(vi) Representations and Warranties. All representations and
warranties made by City pursuant to Section 8(b) shall be true and correct as of the Closing Date.
(vii) Entitlements and Building Plans. City acknowledges and
agrees that the transactions described in this Agreement are subject to and conditioned upon the
occurrence of Final Approval. City shall cooperate in good faith with Steadfast in Steadfast's
efforts to (i) process the Entitlements and obtain Final Approval, (ii) obtain a foundation permit
for the building(s) to be constructed on the City Land in accordance with Steadfast's
development thereof and (iii) obtain approval of its building plans for the building(s) to be
constructed on the City Land in accordance with Steadfast's development thereof, which
cooperation shall include, but not be limited to designating an individual to serve as the plan-
checker for such building plans.
(viii) Acceptance. City shall employ its best efforts and shall
take any and all action necessary to formally accept the Steadfast Property in accordance with all
applicable procedures, ordinances, laws, and regulations that have been adopted by or imposed
on the City, including but not limited to the passage of any resolution and the adoption of any
ordinance that may be necessary to evidence such acceptance. To evidence such acceptance,
City shall execute the Steadfast Deed in a manner that clearly indicates that the City accepts the
Steadfast Deed.
(ix) Sign. On or after the date on which Steadfast obtains a
preliminary public report from the California Department of Real Estate for the Steadfast Project,
City shall allow Steadfast to place a sign on the City Land that advertises and markets such
project in a form acceptable to the City's Executive Director of Planning and Building Safety.
11. Prorations And Adjustments. There shall be no prorations between the
Parties, except as expressly provided herein.
(a) Utilities. Prior to the Closing Date, the Parties shall notify all
utility companies servicing the Steadfast Property and the City Property of the anticipated
change in ownership of the City Property and the Steadfast Property and request that all billings
after the Closing be made to City with respect to the Steadfast Property and to the Steadfast with
respect to the City Property. Utility meters will be read, to the extent that the utility company
will do so, during the daylight hours on the Closing Date, with charges to that time paid by the
conveying Party and charges thereafter paid by acquiring Party. Charges for utilities which are
unmetered, or charges for the meters which have not been read on the Closing Date, will be
prorated between Steadfast and City as of the Closing based upon utility billings for any such
charges to the other Party, and such Party shall pay its pro rata share of such charges to the Party
requesting payment within seven (7) days from the date of any such request.
40836735. 16
16
(b) Taxes. City shall be responsible for all taxes and assessments that
become a lien against the Steadfast Land after the Closing to the extent they relate to the post-
Closing period, and any such taxes for the period in which the Closing Date falls shall be
prorated as of the Closing Date. Steadfast shall be responsible for all taxes and assessments that
become a lien against the City Property after the Closing to the extent they relate to the post-
Closing period, and any such taxes for the period in which the Closing Date falls shall be
prorated as ofthe Closing Date. Steadfast shall have no responsibility for taxes or special
assessments for the Steadfast Land to the extent they accrue or relate to the post-Closing period.
City shall have no responsibility for taxes or special assessments for the City Property to the
extent they accrue or relate to the post-Closing period.
(c) Method of Proration. All prorations will be made as ofthe Closing
Date based on a 365-day year.
(d) Adjustments. All prorations and credits shall be prepared using the
latest bills or estimates made by the Parties from information available. If any supplemental
billing is issued or new information learned with respect to any of the foregoing prorations or
credits, the same shall be adjusted and prorated between Steadfast and City as soon as reasonably
possible after the Closing. In any event, to the fullest extent possible Steadfast and City shall
jointly prepare a final schedule of adjustments within thirty (30) days after Closing and either
Party owing the other a sum of money shall pay such sum within ten (10) days after such final
schedule is prepared. The provisions of this Article 11 shall survive the Closing.
12. Right of Termination. Intentionally omitted.
13. Condemnation and Destruction.
(a) Eminent Domain or Taking of the Properties. Ifproceedings under
a power of eminent domain relating to either the City Land, the Steadfast Land or any part
thereof are commenced prior to the Closing Date, the Affected Owner shall promptly inform the
Acquiring Party in writing.
(i) If such proceedings involve the taking oftitle to all or any
interest in the City Land Steadfast may elect to terminate this Agreement by notice in writing
sent within thirty (30) days after receipt of notice of such taking, in which case this Agreement
shall thereafter be null and void and of no further force or effect and neither Party shall have any
further obligation to or rights against the other except any rights or obligations of either Party
which are expressly stated to survive termination ofthis Agreement.
(ii) If the proceedings do not involve the taking of title to all or
any interest in the Steadfast Land or the City Land or ifthe Acquiring Party does not elect to
terminate this Agreement, this transaction will be consummated as described in this Agreement
and any award or settlement payable with respect to such proceeding will be paid or assigned to
the Acquiring Party upon the Closing.
(iii) The Acquiring Party shall have the right to participate in all
negotiations with the condemning Governmental Authority and approve any settlement affecting
the property it is acquiring.
40836735. 16
17
(iv) City acknowledges and agrees that it shall not exercise or
encourage any other entity to exercise the power of eminent domain with respect to the Steadfast
Land or any portion thereof.
(b) Damage or Destruction to the Propertv. Except as provided in
subsection (c) below, prior to the Close of Escrow the entire risk ofloss or damage to the
Steadfast Land or the City Land, as applicable, by earthquake, flood, hurricane, landslide, fire or
other casualty is borne and assumed by the Affected Owner and shall not waive or excuse any of
the obligations ofthe Parties or the Conditions Precedent.
(c) Provisions Applicable to the Citv Propertv. If, prior to the Closing
Date, any part of the City Property is damaged or destroyed by earthquake, flood, landslide, fire
or other casualty, City shall remove debris and demolish and clear all above-ground
improvements that remain on the City Property and are in an unsafe or damaged condition
following the damage and destruction.
14. Remedies.
(a) BreachbvEitherPartv. STEADFAST AND CITY EXPRESSLY
ACKNOWLEDGE AND AGREE THAT IT IS THE INTENT OF BOTH PARTIES THAT IN
THE EVENT THAT ONE PARTY (THE "NON-PERFORMING PARTY") FAILS TO
PERFORM ANY OBLIGATION CREATED BY THIS AGREEMENT, THEN THE OTHER
PARTY'S SOLE REMEDY, AND THE NON-PERFORMING PARTY'S SOLE LIABILITY
SHALL BE TO TERMINATE THIS AGREEMENT BY DELIVERING WRITTEN NOTICE
OF SUCH TERMINATION TO THE NON-PERFORMING PARTY. IN THE EVENT OF
SUCH A TERMINATION, THIS AGREEMENT SHALL TERMINATE EFFECTIVE AS OF
THE DATE ON WHICH THE NOTICE OF TERMINATION IS RECEIVED BY THE NON-
PERFORMING PARTY AND THE PARTIES SHALL THEREAFTER HAVE NO FURTHER
RIGHTS, OBLIGATIONS, OR LIABILITIES HEREUNDER. EACH PARTY EXPRESSLY
ACKNOWLEDGES AND AGREES THAT NO EXTRINSIC EVIDENCE MAYBE
OFFERED IN ANY PROCEEDING REGARDING INTERPRETATION OF THIS SECTION.
NEITHER PARTY SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY
INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE
WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, WHETHER SUCH
DAMAGES BE PREDICATED UPON AN ALLEGED BREACH OF THIS AGREEMENT,
NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER BASIS WHATSOEVER.
(b) Indemnification Obligations Intact. NOTHING CONTAINED IN
THIS ARTICLE 14 SHALL WAIVE OR OTHERWISE LIMIT BUYER'S REMEDIES OR
DAMAGES FOR CLAIMS OF THE PARTIES AGAINST EACH OTHER ARISING OUT OF
SELLER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
40836735. 16
18
(c) Acknowledgement. CITY AND STEADFAST ACKNOWLEDGE
THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF 'iARTICLE
14 AND BY THEIR INITIALS BELOW AGREE TO BE BOUND BY ITS TE r \
City's Initials M... Steadfast's Initials W
15. Miscellaneous Provisions.
(a) Waiver of Performance. Either Party may waive the satisfaction or
performance of any conditions or agreements in this Agreement, which have been inserted for its
own benefit, so long as the waiver is signed and specifies the waived condition or agreement and
is delivered to the other Party hereto and the Escrow Holder.
(b) Section and Article Headings. The section and article headings of
this Agreement are for the purposes of reference only and shall not be used for limiting or
interpreting the meaning of any section or article.
(c) Notices. All notices, requests, demands or documents which are
required or permitted to be given or served hereunder shall be in writing and (a) delivered
personally, (b) delivered by a national overnight courier (i.e., FedEx), or (c) transmitted by
facsimile, addressed as follows:
If to Steadfast:
Steadfast Courtyards, L.P.
c/o Steadfast Companies
4343 Von Karman Avenue, Suite 300
Newport Beach, CA 92660
Attn: Kristin Proctor
Telephone: 949-852-0700
Facsimile: 949-852-0143
With copy to:
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
Attn: Timi Anyon Hallem, Esq.
Telephone: 310-312-4217
Facsimile: 310-312-4224
If to City:
City of Santa Ana
20 Civic Center Plaza M-31
P.O. Box 1988
Santa Ana, CA 92702
Attn: City Manager
Telephone:
Facsimile: 714-647-6954
With a copy to:
City of Santa Ana
20 Civic Center Plaza M-31
P.O. Box 1988
Santa Ana, CA 92702
Attn: City Attorney
Telephone:
Facsimile: 714-647-6515
40836735. 16
19
If to Escrow Holder:
First American Title Insurance Company
I First American Way
Santa Ana, CA 92707
Telephone: (714) 800-3470
Facsimile: (714) 800-3138
Notice shall be deemed to have been delivered only upon actual delivery to the intended
addressee in the case of either personal, courier, or facsimile delivery. The addresses for
purposes of this paragraph may be changed by giving written notice of such change in the
manner provided herein for giving notices. Unless and until such written notice is delivered, the
latest information stated by written notice, or provided herein if no written notice of change has
been delivered, shall be deemed to continue in effect for all purposes hereunder.
(d) Time of Essence. Time and each of the terms, covenants,
conditions and contingencies ofthis Agreement are hereby expressly made of the essence.
(e) Counterparts. This Agreement maybe executed in several
counterparts and all such executed counterparts shall constitute one agreement, binding on the
Parties hereto, notwithstanding that the Parties hereto are not signatories to the original or to the
same counterpart. This Agreement shall not be binding unless and until all Parties hereto have
executed the Agreement.
(f) Governing Law. The validity, construction and operational effect
of this Agreement shall be governed by the laws of the State.
(g) Intentionally Omitted.
(h) Prior Agreements. This Agreement supersedes any and all oral or
written agreements between the Parties hereto regarding the Steadfast Property and the City
Property which are prior in time to this Agreement. Neither City nor Steadfast shall be bound by
any prior understanding, agreement, promise, representation or stipulation, express or implied,
not specified herein.
(i) Further Assurances. City and Steadfast agree to execute all
documents and instruments reasonably required in order to consummate the exchange herein
contemplated and to carry out the intent and purpose of this Agreement.
(j) Severability. If any portion of this Agreement is held to be
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain
in full force and effect.
(k) Performance Due on Non-Business Dav. If the time period for the
performance of any act called for under this Agreement expires on a Saturday, Sunday, or any
other day on which banking institutions in the State are authorized or obligated by law or
40836735. 16
20
executive order to close, the act in question may be performed on the next succeeding Business
Day.
(I) Amendments. This Agreement may not be amended or modified
except in writing executed by both of the Parties hereto.
(m) Survival. The recitals set forth at the beginning of this Agreement
are deemed incorporated herein, and the Parties to this Agreement warrant and represent that
they do not omit to state any material fact necessary to make the statements or Exhibits, as the
case may be, materially misleading. The representations, warranties, covenants,
acknowledgments, agreements and indemnities contained in this Agreement and the Exhibits, or
in any of the documents or agreements executed and/or delivered and/or exchanged pursuant to
the terms ofthis Agreement, shall survive the Closing Date for a period of twelve (12) months
and any action for a breach of any representation or warranty must be filed and served within
thirteen (13) months from the date ofrecordation of the applicable Deed.
(n) Advice of Counsel. The Parties acknowledge that (a) they have
not made any representation as to the Federal or State tax implications relating to the transactions
contemplated herein, (b) they have thoroughly read and reviewed the terms and provisions of this
Agreement and the Exhibits attached hereto and are familiar with the terms of this Agreement,
(c) they clearly understand the terms and provisions contained in this Agreement and fully and
unconditionally consent to it, (d) they have had full benefit and advice of counsel of their own
selection, in regard to understanding the terms, meaning and effect of this Agreement, (e) they
have executed the Agreements freely, voluntarily, with full knowledge, and without duress, (f) in
executing these Agreements, they are relying on no other representations, either written or oral,
express or implied, made to them by any other party to these Agreements, and the consideration
received by them under these Agreements has been actual and adequate.
(0) Assignment. Neither Party may voluntarily or involuntarily,
directly or indirectly, sell, assign, hypothecate, pledge or otherwise transfer or dispose of all or
any portion of its interest in this Agreement to any third party without the prior written consent
of the other. Notwithstanding the foregoing, Steadfast shall have the right without the prior
consent of City to (i) restructure the ownership interests or grant additional ownership interests in
Steadfast and/or (ii) convey, transfer and/or assign this Agreement and the Steadfast Property to
a new entity, provided that Steadfast or Steadfast Residential Properties has a majority ownership
interest in the resulting entity. Nor shall the rights of Steadfast hereunder be subject to
assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act,
and any such assignment or transfer shall be wholly void and of no further force or effect unless
prior written consent thereto be obtained from the City Council of the City.
(p) Full Integration. City and Steadfast each acknowledge that there
are no other agreements or representations, either oral or written, express or implied, that are not
embodied in this Agreement and the Exhibits. This Agreement and the Exhibits attached to this
Agreement represent a complete integration of all prior and contemporaneous agreements and
understandings and documents.
40836735. 16
21
(q) Definitions. Capitalized terms used herein, unless otherwise
defined herein, shall have the respective meanings specified in the Glossary of Defined Terms
attached hereto as Schedule 1.
(r) Recordation. Within forty (40) days of the execution of this
Agreement, the Parties shall record a memorandum of this Agreement against title to the City
Land and title to the Steadfast Land in the Official Records, which document shall be in the form
attached as Exhibit F attached hereto, provided, however, that the cost of such recordation shall
be borne entirely by the Party electing to record and provided further that, upon the Closing or a
termination of this Agreement for any reason, each Party shall, upon the request of the other
Party, execute and deliver to the requesting Party a quitclaim deed releasing the rights of such
Party to the property of the requesting Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
40836735. 16
22
IN WITNESS WHEREOF, Steadfast and City have executed this Agreement as of the date first
above written.
City:
City of Santa Ana, a charter city duly organized
under the Constitution and laws of the State of
California
By:
Name:
Title:
a-pea
David N I Ream
City Manager
Steadfast:
Steadfast Courtyards, L.P.,
a California limited partnership
By: SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner ~.
~,;.,~~~"~
Title: Y,t''i',,1:!f'(\'r \
An original fully executed copy of this Agreement has been received by the Escrow
Holder this day of , 2006, and by the execution hereof the Escrow
Holder hereby covenants and agrees to be bound by the terms of this Agreement.
ESCROW HOLDER:
By:
Name:
Title:
40836735. 16
23
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Exhibit I:
Schedule I:
Schedule 2:
40836735.] 6
EXHIBIT AND SCHEDULE LIST
Legal Description of City Land
Legal Description of Steadfast Land
Form of Steadfast Deed
Form of City Deed
Form of General Assignment
Form of Memorandum of Agreement
Form of Bowers License Agreement
Description of the Steadfast Project
Form of City Lease Agreement
Definitions
List of Additional Entitlements
-24-
EXHIBIT A TO LAND EXCHANGE AGREEMENT
LEGAL DESCRIPTION OF CITY LAND
That certain real property located in the City of Santa Ana, County of Orange, State of
California, bearing Assessors Parcel Numbers 002-162-05, 002-162-06, 002-162-07, 002-162-
30,002-162-31,002-162-32,002-162-33 and 002-162-34.
40836735.16
Exhibit A
EXHIBIT B TO LAND EXCHANGE AGREEMENT
LEGAL DESCRIPTION OF STEADFAST LAND
That certain real property located in the City of Santa Ana, County of Orange, State of
California, bearing Assessors Parcel Numbers 399-102-5, 399-102-06 and 399-102-07.
40836735.16
Exhibit B
EXHIBIT C TO LAND EXCHANGE AGREEMENT
FORM OF STEADFAST DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Space above this line for Recorder's Use
MAIL TAX STATEMENTS TO:
DOCUMENTARY TRANSFER TAX $N/A
Computed on the consideration or value of property
conveyed; OR
Computed on the consideration or value less liens or
encumbrances remaining at time of sale.
TRANSFER TAX EXEMPTION:
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Steadfast
Courtyards, L.P., a California limited partnership ("Grantor"), hereby grants to City of Santa
Ana, a charter city duly organized under the Constitution and laws of the State of California
("Grantee"), subject to all easements, covenants, conditions, restrictions and matters ofrecord
that may affect the Land (as defined below) that certain real property located in the City of Santa
Ana, County of Orange, State of California, which real property is more particularly described in
Schedule "I" attached hereto ("Land"), together with all right, title and interest of Grantor in
and to all buildings and improvements now located on the Land.
Grantor hereby further grants to Grantee all easements, privileges and rights appurtenant
to the Land and pertaining or held and enjoyed in connection therewith and all of Grantor's right,
title and interest in and to any land lying in the bed of any street, alley, road or avenue to the
centerline thereof in front of, or adjoining the Land.
40836735.16
Exhibit C
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
,2006.
GRANTOR:
City of Santa Ana, a charter city duly organized
under the Constitution and laws ofthe State of
California
By:
Name:
Title:
40836735.16
Exhibit D
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 2006, before me, personally
appeared personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
40836735.16
Exhibit D
SCHEDULE "1" TO GRANT DEED
LEGAL DESCRIPTION
[TO BE ATTACHED PRIOR TO EXECUTION]
40836735.16
Exhibit D
EXHIBIT D TO LAND EXCHANGE AGREEMENT
FORM OF CITY DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Space above this line for Recorder's Use
MAIL TAX STATEMENTS TO:
DOCUMENTARY TRANSFER TAX $N/A
Computed on the consideration or value of property
conveyed; OR
Computed on the consideration or value less liens or
encumbrances remaining at time of sale.
TRANSFER TAX EXEMPTION:
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, City of Santa
Ana, a charter city duly organized under the Constitution and laws of the State of California
("Grantor"), hereby grants to Steadfast Courtyards, L.P., a California limited partnership
("Grantee"), subject to all easements, covenants, conditions, restrictions and matters of record
that may affect the Land (as defined below) that certain real property located in the City of Santa
Ana, County of Orange, State of California, which real property is more particularly described in
Schedule "I" attached hereto ("Land"), together with all right, title and interest of Grantor in
and to all buildings and improvements now located on the Land.
Grantor hereby further grants to Grantee all easements, privileges and rights appurtenant to the
Land and pertaining or held and enjoyed in connection therewith and all of Grantor's right, title
and interest in and to any land lying in the bed of any street, alley, road or avenue to the
centerline thereof in front of, or adjoining the Land, excepting therefrom Grantor's interests, or
Grantor's interests on behalf of the public, in, over, under, and through any existing street,
sidewalk, highway or "public services easement", as these terms are used in California Streets &
Highways Code sections 1800, 5360, 23, and 8306, respectively.
The Grantee covenants by and for itself and any successors in interest that, upon
the Grantee's acquisition of the Land and during the period of Grantee's ownership thereof there
shall be no discrimination against or segregation of any person or group of persons on account of
40836735.16
Exhibit D
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment ofthe Land, nor shall the Grantee itself
or any person claiming under or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the Land. The covenants set forth above
shall run with the land.
All deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enj oyment ofthe
land herein conveyed, nor shall the grantee or any person claiming under or through him
or her, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants
shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or through
him or her, and this lease is made and accepted upon and subject to the following
conditions: "That there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, marital status, national
origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any
person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the
premises herein leased."
(c) In contracts: "There shall be no discrimination against or segregation of, any
person, or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
40836735.16
Exhibit D
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
,2006.
GRANTOR:
Steadfast Courtyards, L.P.,
a California limited partnership
By: SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner
By:
Name:
Title:
40836735.16
Exhibit D
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 2006, before me, personally
appeared personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
(SEAL)
40836735.16
Exhibit D
SCHEDULE "I" TO GRANT DEED
LEGAL DESCRIPTION
[TO BE ATTACHED PRIOR TO EXECUTION]
40836735.16
Exhibit D
EXHIBIT E TO LAND EXCHANGE AGREEMENT
FORM OF GENERAL ASSIGNMENT
This General Assignment (this "Assignment") is executed this day of
, 2006 by ("Assignor") in favor of
and ("Assignee"), with reference to the following facts:
A. Pursuant to that certain Land Exchange Agreement and Joint Escrow
Instructions ("Agreement") dated of even date herewith, Assignor has agreed to convey that
certain real property (and all rights, easements, privileges, tenements, hereditaments,
appurtenances, reversions, remainders, licenses and benefits appurtenant, belonging to or running
with said land, collectively, the "Land") to Assignee subject to and in accordance with the terms
and conditions set forth therein.
B. Pursuant to the Agreement, Assignor has agreed to assign to Assignee all
of Assignor's right, title and interest in (i) all plans and specifications, warranties, guaranties,
licenses, permits, entitlements, governmental approvals and certificates of occupancy that
specifically relate to the Land and exist under applicable law as of the date hereof (including, but
not limited to, those relative to the environmental or physical condition of the Land), (ii) all other
intangible property that specifically relates to such land (collectively, the "Intangible
Property"), subject to any rights of consent as provided therein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignment ofIntangible Propertv. Assignor hereby assigns, transfers and conveys to
Assignee all of Assignor's right, title and interest in and to all of the Intangible Property.
2. Acceptance and Assumption of Liabilities. Assignee hereby accepts the foregoing
assignment of the Intangible Property and hereby assumes all obligations with respect thereto
which arise from and after the Effective Date
3. Effective Date. The "Effective Date" of this Assignment shall be the date that Assignee
acquires title in and to the real property described on Exhibit A attached hereto as evidenced by
a deed recorded in the Official Records of Orange County, California.
4. Consistency with Agreement. Nothing in this Assignment shall be construed to modifY
or limit any provisions in the Agreement and in the event of any inconsistency between this
Assignment and the Agreement, the latter shall govern and control.
5. "As-Is". Except as otherwise expressly provided in the Agreement to the contrary, the
Intangible Property are transferred hereunder "as-is" without warranty or representation of any kind
whatsoever, either express or implied.
Exhibit E
40836735.16
6. Inurement. This Assignment shall inure to the benefit of and be binding upon Assignor
and Assignee, and their respective assigns and successors in interest.
7. Governing Law. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
8. Counterparts. This Assignment may be signed by the parties in different counterparts and
the signature pages combined to create a document binding on all parties.
9. Indemnification. Each party hereto shall indemnify and hold the other party harmless
from and against any third-party claim, or other similar expense or loss (including reasonable
attorney's fees) suffered by such other Party caused by or arising from that party's breach of the
terms, conditions or covenants contained herein.
[SIGNATURES ON FOLLOWING PAGE]
Exhibit E
40836735.16
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first above
written.
City of Santa Ana, a charter city duly
organized under the Constitution and
laws of the State of California
Steadfast Courtyards, L.P.,
a California limited partnership
By:
SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner
By:
Name:
Title:
By:
Name:
Title:
Exhibit E
40836735.16
EXHIBIT A TO GENERAL ASSIGNMENT
[TO BE ATTACHED PRIOR TO EXECUTION]
Exhibit E
40836735.16
EXHIBIT F TO LAND EXCHANGE AGREEMENT
FORM OF MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn:
MEMORANDUM OF LAND EXCHANGE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
This MEMORANDUM OF LAND EXCHANGE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS (this "Memorandum") is made as of this _ day of
, 200 ,by and between the City of Santa Ana, a charter city duly organized
under the Constitution and laws of the State of California ("City"), and Steadfast Courtyards,
L.P., a California limited partnership ("Steadfast") with reference to the following facts:
I. City is the owner of that certain real property located in the City of Santa
Ana, County of Orange, State of California, bearing Assessors Parcel Numbers 002-162-05, 002-
162-06,002-162-07,002-162-30,002-162-31, 002-162-32, 002-162-33 and 002-162-34, as more
particularly described on Exhibit A attached hereto ("City Land").
2. Steadfast is the owner of that certain real property located in the City of
Santa Ana, County of Orange, State of California, bearing Assessors Parcel Numbers
and as more particularly described on Exhibit B
attached hereto ("Steadfast Land").
3. Pursuant to that certain Land Exchange Agreement and Joint Escrow
Instructions ("Agreement") dated of even date herewith, Steadfast has agreed to convey the
Steadfast Property (which includes the Steadfast Land and is defined in the Agreement) to City
and City has agreed to convey the City Property (which includes the City Land and is defined in
the Agreement) to Steadfast subject to and in accordance with the terms and conditions set forth
therein.
Exhibit F
40836735.16
4. All of the terms, provisions and covenants ofthe Agreement are
incorporated in this Memorandum by reference as though written out at length herein, and the
Agreement and this Memorandum shall be deemed to constitute a single instrument or document.
5. This Memorandum is prepared for recordation purposes only, and it in no
way modifies the terms, conditions, provisions and covenants of the Agreement. In the event of
any inconsistency between the terms, conditions, provisions and covenants of this Memorandum
and the Agreement, the terms, conditions and covenants of the Agreement shall prevail.
The parties hereto have executed this Memorandum on the dates specified immediately
below their respective signatures.
Steadfast:
Steadfast Courtyards, L.P.,
a California limited partnership
By: SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner
By:
Name:
Title:
City:
City of Santa Ana, a charter city duly organized
under the Constitution and laws of the State of
California
By:
Name:
Title:
[INSERT REQUISITE ACKNOWLEDGEMENTS PRIOR TO EXECUTION]
Exhibit F
40836735.16
EXHIBIT A
TO
MEMORANDUM OF LAND EXCHANGE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
Legal Description of City Land
[TO BE ATTACHED PRIOR TO EXECUTION]
40836735.16
Exhibit F
EXHffiIT B
TO
MEMORANDUM OF LAND EXCHANGE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS
Legal Description of Steadfast Land
[TO BE ATTACHED PRIOR TO EXECUTION]
40836735.16
Exhibit F
EXHIBIT G
BOWERS LICENSE AGREEMENT
THIS BOWERS LICENSE AGREEMENT (this "Agreement") is made as of
, 2006 by and between The Charles W. Bowers Museum
Corporation, a California non-profit, public benefit corporation, dba The Bowers Museum of
Cultural Art ("Licensee") and Steadfast Courtyards, L.P., a California limited partnership
("Licensor"), with reference to the following facts:
A. Licensor is the owner of that certain real property located in the City of
Santa Ana, County of Orange, State of California, having addresses of 2100 N. Main Street and
2110 N. Main Street, bearing Assessors Parcel Numbers 399-102-05, 399-102-06 and 399-102-
07, and more particularly described on Exhibit A attached hereto and made a part hereof (the
"Licensor Land").
B. Pursuant to that certain Land Exchange Agreement and Joint Escrow
Instructions ("LEA") dated as of September 6, 2005 by and between Licensor and the City of
Santa Ana, a charter city duly organized under the Constitution and laws of the State of
California ("City"), Licensor has agreed to convey the Licensor Land to City and City has
agreed to convey to Licensor certain real property owned by the City and presently used by
Licensee ("City Land"), all in accordance with the terms and provision of the LEA.
C. Pursuant to the LEA, Licensor has also agreed to provide Licensee with
the right to use portions of the Licensor Property for the purposes and subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants contained in this
Agreement and other good and valuable consideration, receipt of which is acknowledged, the
parties hereto hereby agree as follows:
I. Grant of License. Licensor hereby grants to Licensee a non-exclusive license
(the "License") over all of the Licensor Land except for the buildings located thereon (the
"License Area"). Licensor and Licensee each acknowledge and agree that the License does not
include the right to use any portion of the buildings located on the Licensor Land. The License
Area may be used solely for (i) pedestrian and vehicular ingress, egress and access, and (ii)
staging and temporary storage related to Licensee's construction on and redevelopment of the
real property located adjacent to and immediately to the south of the Licensor Land. Licensor
reserves the right to use the License Area for any and all purposes which do not prevent
Licensee's use of the License Area for the foregoing purposes.
2. Term. The License granted herein shall commence on the date of this
Agreement and shall terminate and thereafter be of no further force or effect on the later of (i)
thirty (30) days from the date that Licensee gives written notice of its intent to vacate to
Licensor, or (ii) November I, 2006 (such period is referred to herein as the "Term"). In
40836735.16
Exhibit G
addition, this License shall automatically terminate and expire and thereafter be of no further
force or effect if (i) the LEA terminates, or (ii) the City Council of Santa Ana does not vote to
approve Steadfast's condominium project, as described on Exhibit B hereto, on or before
December 15, 2005. Upon the expiration of the Term or earlier termination of the License,
Licensee shall fully and completely vacate the License Area.
3. Maintenance and Repair. Licensee shall be responsible, at its sole cost and
expense, for (i) installing a standard City chain link construction fence along the property line of
the Licensor Land that abuts N. Main Street, and (ii) maintaining the License Area during the
Term, as such actions may be required from time to time to keep the License Area in good order,
condition and repair. Licensor shall be responsible, at its sole cost and expense, for securing the
buildings located on Licensor's Land, including, but not limited to, boarding up the windows and
locking the doors of such buildings.
4. Insurance. As a condition to the commencement of the Term of the License
and before Licensee may use the License and the License Area in any manner, Licensee shall
deliver to Licensor certificates or other written confirmation satisfactory to Licensor showing
that Licensee has in effect a comprehensive general public liability insurance policy including,
but not limited to, owned and non-owned vehicle liability, personal injury, blanket contractual,
broad form property damage liability coverage covering any and all liability of Licensee with
respect to or arising out of any work that may be performed by Licensee under this Agreement
with limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury,
personal injury and property damage liability, and (ii) Licensor has been named as an additional
insured on such insurance policies (except with respect to the workers' compensation policy).
Licensee agrees that Licensee's use of the License and the License Area shall occur at Licensee's
sole risk and without unreasonable interference with Licensor's operations on the remainder of
the Licensor Land. Licensee agrees to keep the Licensor Land free and clear of any liens
resulting from Licensee's use ofthe License and the License Area.
5. Indemnification. Licensee agrees to and does hereby indemnify and hold
harmless Licensor, and Licensor's partners, officers, directors, agents, representatives and
employees, from every claim or demand made, and every liability, loss, damage, or expense of
any nature whatsoever arising out of or encountered in connection with this Agreement, the
License and Licensee's use of the License Area. The coverage of the foregoing indemnification
shall include, without limitation, attorneys' fees and court costs incurred by Licensor with regard
thereto.
6. Attornevs' Fees. In any judicial or arbitration proceeding involving
performance under this Agreement, or default or breach thereof, the prevailing party shall be
entitled to receive from the other party reasonable attorney's fees and reasonable costs and
expenses.
of California.
7. Governing Law. This Agreement shall be governed by the laws of the State
8. Entire Agreement. This Agreement and its exhibits constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof, and the final,
Exhibit G
40836735.16
complete and exclusive expression of the terms and conditions thereof. Prior agreements,
representations, negotiations, and understandings of the parties hereto, oral or written, express or
implied, are hereby superseded and merged herein.
9. Modification. This Agreement may not be modified in any respect or
rescinded, in whole or in part, except by an instrument in writing, duly executed by both parties,
their successors or assigns.
10. Severabilitv. If any term, covenant, condition or provision ofthis Agreement,
or the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions ofthis Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
11. Construction. The rule of strict construction does not apply to this
Agreement. The language of this grant shall be construed simply, according to its fair meaning,
so that the intention of the parties is carried out.
12. Waiver and Default. The waiver by one party ofthe performance of any
provision ofthis Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by it of any other provision under this Agreement or of any subsequent breach by the
other party of the same provision.
13. Counterparts. This Agreement may be executed in one or more counterparts,
and bear the signature of each party on a separate counterpart, each of which when so executed
and delivered shall be deemed an original but all of which taken together shall constitute but one
and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Exhibit G
40836735.16
IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement as of
the date first written above.
Licensor:
Steadfast Courtyards, L.P.,
a California limited partnership
By: SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner
By:
Name:
Title:
Licensee:
The Charles W. Bowers Museum Corporation, a
California non-profit, public benefit corporation,
dba The Bowers Museum of Cultural Art
By
Name: Peter C. Keller, Ph.D
Title: President
Exhibit G
40836735.16
EXHIBIT A
TO
BOWERS LICENSE AGREEMENT
Legal Description of Licensor Land
That certain real property located in the City of Santa Ana, California having addresses of 21 00
N. Main Street and 2110 N. Main Street and bearing Assessors Parcel Numbers 399-102-05,
399-102-06 and 399-102-07.
Exhibit G
40836735.] 6
EXHIBIT B
TO
BOWERS LICENSE AGREEMENT
Steadfast Project
Development of the property located at 1900 North Main Street as set forth in Specific
Development Zone No. 79, Tentative Tract Map No. 2005-08, Mitigated Negative Declaration
No. ER 2005-18, and Site Plan Review No. 2005-12.
40836735.16
Exhibit G
EXHIBIT H
DESCRIPTION OF THE STEADFAST PROJECT
Development ofthe property located at 1900 North Main Street as set forth in Specific
Development Zone No. 79, Tentative Tract Map No. 2005-08, Mitigated Negative Declaration
No. ER 2005-18, and Site Plan Review No. 2005-12.
Exhibit H
40836735.16
EXHIBIT I
CITY LEASE AGREEMENT
THIS CITY LEASE AGREEMENT (this "Lease") is made as of _,
2006 by and between the City of Santa Ana, a charter city duly organized under the Constitution
and laws of the State of California ("Lessee") and Steadfast Courtyards, L.P., a California
limited partnership ("Lessor"), with reference to the following facts:
A. Lessor is the owner of that certain real property located in the City of
Santa Ana, County of Orange, State of California, bearing Assessors Parcel Numbers 002-162-
05,002-162-06,002-162-07,002-162-30, 002-162-31, 002-162-32, 002-162-33 and 002-162-34
(the "Premises").
B. Lessor acquired the Premises from Lessee in accordance with the terms
and provisions of that certain Land Exchange Agreement and Joint Escrow Instructions ("LEA")
dated as of September 6, 2005 by and between Lessor and Lessee.
C. Pursuant to the LEA, Lessor has agreed to lease the Lessor Property to
Lessee for the purposes and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants contained in this Lease
and other good and valuable consideration, receipt of which is acknowledged, the parties hereto
hereby agree as follows:
I. Lease. Lessor hereby leases to Lessee and Lessee hereby Leases from Lessor
all of the Premises. Lessor and Lessee each acknowledge and agree that this Lease does not
include the right to use any portion of the buildings located on the Premises. Lessee shall only
use the Premises for (i) pedestrian and vehicular ingress, egress and access, and (ii) parking for
the benefit of guests, employees, invitees and patrons of the Bowers Museum. Lessor reserves
the right to use the Premises for any and all purposes which do not prevent Lessee's use of the
Premises for the foregoing purposes.
2. Term. The term of this Lease shall commence on the date of this Lease and
shall terminate and thereafter be of no further force or effect on the date that is ninety (90) days
after the date of this Lease (such period is referred to herein as the "Term"). Upon the
expiration ofthe Term, Lessee shall fully and completely vacate the Premises.
3. Rent. Lessee shall pay to Lessor the sum of $1.00 as rent for the Term.
Lessor acknowledges and agrees that Lessee has paid such rent in full prior to the date hereof.
4. Maintenance and Repair. Lessee shall be responsible, at its sole cost and
expense, for maintaining the Premises dnring the Term, as such actions may be required from
time to time to keep the Premises in good order, condition and repair.
Exhibit!
40836735.16
5. Insurance. As a condition to the commencement of the Term, and before
Lessee may use the Premises in any manner, Lessee shall deliver to Lessor certificates or other
written confirmation satisfactory to Lessor showing that Lessee has in effect a comprehensive
general public liability insurance policy including, but not limited to, owned and non-owned
vehicle liability, personal injury, blanket contractual, broad form property damage liability
coverage covering any and all liability of Lessee with respect to or arising out of any Lessee's
use of the Premises under this Lease with limits of not less than One Million Dollars
($1,000,000) per occurrence for bodily injury, personal injury and property damage liability, and
(ii) Lessor has been named as an additional insured on such insurance policies (except with
respect to the workers' compensation policy). Lessee agrees that Lessee's use of the Premises
shall occur at Lessee's sole risk and without unreasonable interference with Lessor's operations
on the remainder of the Premises. Lessee agrees to keep the Premises free and clear of any liens
resulting from Lessee's use of the Premises.
6. Indemnification. Lessee agrees to and does hereby indemnify and hold
harmless Lessor, and Lessor's partners, officers, directors, agents, representatives and
employees, from every claim or demand made, and every liability, loss, damage, or expense of
any nature whatsoever arising out of or encountered in connection with this Lease and Lessee
use of the Premises. The coverage of the foregoing indemnification shall include, without
limitation, attorneys' fees and court costs incurred by Lessor with regard thereto.
California.
7. Governing Law. This Lease shall be governed by the laws of the State of
8. Entire Agreement. This Lease and its exhibits constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof, and the final, complete and
exclusive expression of the terms and conditions thereof. Prior agreements, representations,
negotiations, and understandings of the parties hereto, oral or written, express or implied, are
hereby superseded and merged herein.
9. Modification. This Lease may not be modified in any respect or rescinded, in
whole or in part, except by an instrument in writing, duly executed by both parties, their
successors or assigns.
10. Severabilitv. If any term, covenant, condition or provision of this Lease, or
the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this Lease, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
11. Construction. The rule of strict construction does not apply to this Lease. The
language of this Lease shall be construed simply, according to its fair meaning, so that the
intention of the parties is carried out.
Schedule 1
40836735.16
12. Waiver and Default. The waiver by one party of the performance of any
provision of this Lease shall not invalidate this Lease nor shall it be considered a waiver by it of
any other provision under this Lease or of any subsequent breach by the other party of the same
proVISIOn.
13. Holdover. If Lessee holds over after the expiration of the Term hereof, with
or without the consent of Lessor, Lessor shall have the option, to be exercised in its sole and
absolute discretion, to treat any such holdover period as a month-to-month tenancy, and not a
renewal hereof or an extension for any further term, and in such case (a) monthly rent shall be
payable in an amount equal to Sixty Thousand Dollars ($60,000.00) per month, and (b) such
month-to-month tenancy shall be subject to every other term, covenant, condition and agreement
contained herein. Due to the length of the Term, Lessor and Lessee cannot accurately determine
what a suitable holdover rent will be upon expiration, but have agreed that the aforementioned
amount is appropriate to (i) incentivize Lessee to timely surrender the Lessor Property upon
expiration of the Term, and (ii) compensate Lessor for loss of use ofthe Lessor Property
occasioned by such holdover and the potential delay that Lessor would likely experience with
respect to Lessor's planned development of the Lessor Property. Nothing contained in this
Section shall be construed as (i) a consent by Lessor to any holding over by Lessee, (ii) a
requirement that Lessor accept a holdover tenancy, (iii) a waiver by Lessor of its rights to pursue
all available contractual, legal and equitable remedies against Lessor (including without
limitation, recovery of possession), all of which rights and remedies are expressly reserved, or
(iv) relieving Lessee from liability for any general, special or consequential damages that such
holding over may cause Lessor.
Lessee's Initials
Lessor's Initials
14. Counterparts. This Lease may be executed in one or more counterparts, and
bear the signature of each party on a separate counterpart, each of which when so executed and
delivered shall be deemed an original but all of which taken together shall constitute but one and
the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Schedule 1
40836735.16
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the date
first written above.
Lessor:
Steadfast Courtyards, L.P.,
a California limited partnership
By: SRP Urban Developments, Inc.,
a California corporation, its sole General
Partner
By:
Name:
Title:
Lessee:
City of Santa Ana, a charter city duly organized under the
Constitution and laws ofthe State of California
By:
Name:
Title:
Exhibit!
40836735.16
SCHEDULE 1 TO LAND EXCHANGE AGREEMENT
GLOSSARY OF DEFINED TERMS
Capitalized terms not otherwise defined in the Agreement shall have the meaning set forth in this
Schedule 1.
"AcQuirine: Partv" shall mean the Party who intends to acquire the Steadfast Land or the
City Land, as applicable, affected by condemnation, damage or destruction as described in
Article 13.
"Affected Owner" shall mean the Party who owns the Steadfast Land or the City Land,
as applicable, affected by condemnation, damage or destruction as described in Article 13.
"Ae:reement" shall mean the Land Exchange Agreement and Joint Escrow Instruction
between City and the Steadfast to which this Schedule is attached.
"Bowers License" shall have the meaning set forth in Section 2(b ).
"Bowers Museum" shall mean The Bowers Museum, having an address at 2002 N. Main
St., Santa Ana, CA 92706.
"Business Day" means any day, excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State, City or federal government.
"City" shall mean the City of Santa Ana, a charter city duly organized under the
Constitution and laws of the State ofCalifomia.
"City Deed" shall mean the grant deed to be duly executed, acknowledged and delivered
in recordable form by City in accordance with Section 3(d)(i)(A) conveying to Steadfast good
and marketable fee simple title to the City Land. The City Deed shall be in substantially the
same form as the form attached hereto as Exhibit D.
"City Land" shall have the meaning set forth in Recital A.
"City Lease Ae:reement" shall have the meaning set forth in Section 3( d)(i)(E).
"City Permitted Exceptions" shall have the meaning set forth in Section 7( a).
"City Preliminary Report" shall have the meaning set forth in Section 7(a).
"City Property" shall mean and include the City Land together with any and all fixtures,
landscaping and other improvements located thereon as of the Closing Date.
"City Supplemental Report" shall have the meaning set forth in Section 7(a).
Schedule 1
40836735.16
"City Title Policy" shall mean the standard form of ALTA (Form 1970 B) owner's title
policy to be issued by the Title Company for the Steadfast Land as provided in Section 4(b )(iii).
"City's Transferor's Certificate" shall mean the certificate, to be duly executed by City
under penalty ofpeIjury and delivered by City in accordance with Section 3(d)(i)(B) of the
Agreement, certifying that City is not a "foreign person" in accordance with the provisions of
Section 1445 of the Internal Revenue Code and any similar provisions of applicable state law.
"Closinl!" shall mean the consummation of the conveyances of the Steadfast Property
and the City Property, and the other transactions contemplated under the Agreement, all of which
shall occur on or before the Closing Date.
"Closinl! Date" shall mean the date the earlier to occur of (i) the date that is ten (I 0)
Business Days after the date on which Steadfast receives Final Approval. Notwithstanding the
foregoing, in the event that the Final Approval is not obtained on or prior to June 14,2006, then
Steadfast shall have the right, in its sole and absolute discretion, to terminate this Agreement by
providing written notice to City, and this Agreement shall be deemed null and void and of no
further force or effect upon the date on which the City receive such notice.
"Conditions Precedent" shall have the meaning set forth in Article 4.
"Entitlements" shall mean, collectively, (i) a fully approved tentative tract map for the
City Land required to permit the subdivision of the City Land into a sufficient number of lots for
the Use, (ii) a final zoning change (including any required general plan amendment) such that the
City Land may be used for the Use, and (iii) all additional entitlements described on Schedule 2
attached hereto and made a part hereof.
"Environmental Laws" shall mean all federal, state and local laws, ordinances, orders.
rules and regulations now or hereafter in force, as amended from time to time, in any way
relating to or regulating human health or safety, or industrial hygiene or environmental
conditions, or protection of the environment, or pollution or contamination of the air, soil,
surface water or groundwater, or govern or regulate the use, management, storage, disposal,
clean up or remediation of Hazardous Substances and includes, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U. S. c. 9
9601, et seq. ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.c. 9 6901, et
seq., the Clean Water Act, 33 U.S.C. 9 1251, et seq., the Hazardous Substance Account Act,
California Health and Safety Code 9 25300, et seq., the Hazardous Waste Control Law,
California Health and Safety Code 9 25100, et seq., the Medical Waste Management Act,
California Health and Safety Code 9 25015, et seq., the Porter-Cologne Water Quality Control
Act, California Water Code 9 13000, et seq., California Education Code 9 17210 et seq., and
California Code of Regulations, Title 5 9 14010 et seq.
"Escrow" shall mean the escrow established with Escrow Holder for the consummation
of the exchange of the Steadfast Property and the City Property in accordance with this
Agreement.
Schedule I
40836735.16
"Escrow Holder" shall mean First American Title Insurance Company, 1 First American
Way, Santa Ana, CA 92707 (Phone: (714) 800-3470, Facsimile: (714) 800-3138).
"Execution Date" shall mean the date on which both Steadfast and the City have
executed this Agreement.
"Final Approval" shall mean the date upon which both (i) the Santa Ana City Council
and any and all other governmental authorities having jurisdiction over the City Property have
approved the Entitlements and (ii) the time period during which actions must be filed to
challenge such approval has expired without a challenge having been filed, provided, however,
that in the event a challenge has been filed within the relevant appeal period, the term "Final
Approval" shall mean the date which is thirty (30) days following the final resolution (including
final resolution of any legal challenge to a Final Approval that may be filed in a court of
competent jurisdiction) of such challenge.
"Hazardous Materials" shall mean any substance or material that is described as a toxic
or hazardous substance, explosive material, radioactive substance, waste or material or a
pollutant or contaminant or infectious waste, or words of similar import, in any of the
Environmental Laws, or by any governmental agency having jurisdiction and includes, but is not
limited to, asbestos, petroleum or petroleum products (including, without limitation, crude oil or
any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable
for fuel, or any mixture thereof), polychlorinated byphenyls, urea formaldehyde, radon gas,
radioactive matter, medical waste, and chemicals which may cause cancer or reproductive
toxicity.
"Official Records" shall mean the Official Records of Orange County, California.
"Openin!!: of Escrow" shall mean the date the Parties open Escrow for the purpose of
exchanging the Steadfast Property and the City Property.
"Parkin!!: Lot" shall mean the surface parking lot to be constructed by the City on the
Steadfast Property.
"Party" shall mean either City or Steadfast
"Parties" shall mean City and Steadfast, collectively.
"Properties" shall have the meaning set forth in Section 3( a).
"Release" shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the environment, including,
without limitation, continuing migration, of Hazardous Materials into or through soil, air, surface
water or groundwater.
"State" shall mean the State of California.
Schedule I
40836735.16
"Steadfast" shall mean have the meaning set forth in the preamble of the Agreement.
"Steadfast Deed" shall mean the grant deed to be duly executed, acknowledged and
delivered in recordable form by Steadfast in accordance with Section 3( d)(ii)(B) conveying to
City good and marketable fee simple title to the Steadfast Land. The Steadfast Deed shall be in
substantially the same form as the form attached hereto as Exhibit C.
"Steadfast General Assil!nment" shall have the meaning set forth in Section 3(d)(ii)(D).
"Steadfast Land" shall have the meaning set forth in Recital B.
"Steadfast Permitted Exceptions" shall have the meaning set forth in Section 6( a).
"Steadfast Preliminary Report" shall have the meaning set forth in Section 6( a).
"Steadfast Proiect" shall mean the condominium project described on Exhibit H hereto.
"Steadfast Propertv" shall mean and include the Steadfast Land together with any and
all fixtures, landscaping and other improvements located thereon as of the Closing Date.
"Steadfast Supplemental Report" shall have the meaning set forth in Section 6(a).
"Steadfast's Transferor's Certificate" shall mean the certificate, to be duly executed by
Steadfast under penalty of perjury and delivered by Steadfast in accordance with
Section 3(d)(ii)(C) ofthe Agreement, certifying that Steadfast is not a "foreign person" in
accordance with the provisions of Section 1445 of the Internal Revenue Code and any similar
provisions of applicable state law.
"Steadfast Title Policv" shall mean the standard form of ALTA (Form 1970 B) owner's
title policy issued by the Title Company for the City Property as provided in Section 4( a)(iv).
"Title Companv" shall mean First American Title Insurance Company, 1 First American
Way, Santa Ana, CA 92707 Phone: (714) 800-3470, Facsimile: (714) 800-3138).
"Use" shall mean residential condominium, retail and flex space (including live/work)
condominiums.
Schedule I
40836735.16
SCHEDULE 2 TO LAND EXCHANGE AGREEMENT
LIST OF ADDITIONAL ENTITLEMENTS
NONE.
40836735.16
Schedule 2