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HomeMy WebLinkAboutWALNUT STREET S.A., U.S.A., LLC (100 SOUTH MAIN STREET, LLC)-2007 IBJRANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: 1;-/9-07 o:coA (~ndj Go*\ieD"'\ "'4 Bet'\~Qll~1\1 (1.) A-2004-021 THE CITY OF SANTA ANA, CALIFORNIA AGREEMENT FOR SALE AND ACQUISITION OF REAL PROPERTY THIS AGREEMENT, entered into this 1st day of November, 2007, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "Seller"), and 100 SOUTH MAIN STREET, LLC, a California limited liability company (hereinafter called "Buyer"), regardless of number or gender; WHEREAS, the Seller is the owner of certain real property generally located at 110 West First Street in the City of Santa Ana more particularly described below (hereinafter "said real property"); and WHEREAS, the Buyer, or its predecessor in interest, has approached the Seller and seeks to purchase said real property for use as a patio for its previously constructed restaurant; and WHEREAS, the Buyer has constructed certain improvements, including a patio on said real property under a right of entry and license with the Seller, and as of the date of this agreement has been operating part of its restaurant business on said real property for several years; and WHEREAS, the Seller has been authorized, by action of the City Council of the City of Santa Ana at its regular meeting of February 2, 2004, pursuant to section 2-706.1 of the Santa Ana Municipal Code, to directly negotiate with Buyer's predecessor in interest the terms and the conditions of the sale and purchase of said real property as set forth herein; and WHEREAS, the Seller has warranted that it has removed two billboards from the rooftop of the restaurant at a cost the Buyer represents to be more than fair market value of said real property; and WHEREAS, the Buyer has agreed and warranted that it has caused said real property to be developed consistent with the City of Santa Ana land use approvals as specified in paragraph l.a., below; and WHEREFORE, it is agreed by and between the parties, that the foregoing Recitals are a substantive part of this Agreement and that the following terms and conditions are approved and together with the Recitals and all exhibits and attachments hereto, shall constitute the entire Agreement between the Seller and Buyer: WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all that certain real property (hereinabove and hereinafter referred to as "said real property") described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as APN 398-278-03 and 110 West First Street in the City of Santa Ana, California (referred to herein as "said real property.") Said sale and purchase of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey said real property to Buyer, by Grant Deed in substantially the form of Exhibit "B" hereto, within ten (10) working days of the date of this Agreement. Seller, as part of this conveyance, to comply with the following land use approvals of the City of Santa Ana, as they may be amended from time to time, including but not limited to: a. Amendment Application No. 2003-09, b. General Plan Amendment No. 2003-05, c. Conditional Use Permit No. 2003-31, and d. Variance No. 2003-08. 2. Title to be Conveyed. Seller agrees that, except as set forth in Exhibit "C" hereto, which is incorporated herein by this reference as though fully set forth, said real property shall be conveyed by Seller to Buyer, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title except a lien for non-delinquent real property taxes and assessments. Seller hereby warrants that the title to said real property to be conveyed by Seller to Buyer shall be free and clear except as above provided. Seller further agrees that acceptance by Buyer of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease, cloud or defect in title, shall not constitute a waiver by Buyer of its right to the full and clear title hereinabove agreed to be conveyed by Seller to Buyer, nor of any right which might accrue to Buyer because of the failure of Seller to convey title as hereinabove provided. Either party may, at its sole cost, obtain title insurance for said property naming it as insured. 3. Property Taxes. Excepting possessory interest tax, if any, such real property taxes on said real property for the fiscal year within which said real property is conveyed to Buyer as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to Buyer is recorded which is 2 allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to Buyer is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to Buyer. 4. Purchase Price. Buyer agrees to pay to Seller, and Seller acknowledges receipt from Buyer, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), the total sum of One Dollar and No/l 00 ($1.00) (the "full purchase price"). 5. Possession. Seller agrees to deliver to Buyer, on the date the Deed conveying said real property to Buyer is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. As of the date that Seller takes possession from Buyer, the parties agree and acknowledge the fact that the certain Amendment to Right of Entry and License Agreement between Buyer and Seller dated on or about November 13, 2006 (City Agreement No. N-2003-127-001), shall be deemed rescinded and terminated, and shall be null and void for all purposes. 6. Waivers. The waiver by Buyer of any breach of any covenant or agreement herein contained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 7. Heirs, Assigns, Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 8. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 9. Permission to Enter on Premises. Seller hereby grants Buyer, and its authorized agents, permission to enter upon said real property at all reasonable times prior to recordation of the deed for the purpose of making necessary inspections. 10. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-22, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California, 92702. The mailing address ofthe Buyer is: 100 South Main Street, LLC 1200 North Main Street, Suite 900 Santa Ana, California 92701 attn: Michael Harrah 3 11. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by Buyer shall lay at rest, each, every and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by Buyer. 12. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of said real property generated, released, discharged or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about said real property, or transported any Hazardous Materials to or from said real property. The extent of Seller's knowledge related to the presence of Hazardous Materials on, under, in, or about said real property is solely contained in the Phase I Environmental Site Assessment Report prepared by Converse Consultants dated May 12, 2003, a true and correct copy of which Buyer acknowledges having received. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from said real property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115,25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 US.c. S 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 US.C. S 6901 et seq. (42 US.C. S 6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. US.c. S 9601 et seq. (42 US.C. S 9601). 13. Compliance With Environmental Laws. To the best of Seller's knowledge, as specified and limited by paragraph 12 above, said real property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the Buyer within which the subject property is located, the California Department of Health Services, the Regional Water Quality 4 Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. Seller represents to Buyer that Seller has provided Buyer with copies of any and all audits or reports performed on its behalf or which are in its possession relating to whether hazardous materials are present on or under said real property. 14. No Further Warranties As To Said Real Property. Except as otherwise provided herein, the physical condition and title said real is and shall be delivered from Seller to Buyer in an "as is" condition, with no warranty expressed or implied by Seller, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Property for the development purposes intended hereunder. 15. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and Buyer. 16. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 17. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 18. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 19. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 20. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 21. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 22. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit ofthe successors and assigns ofthe parties to this Agreement. 5 23. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Buyer fully, including reasonable costs and attorney's fees, for any injuries or damages to Buyer in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 24. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as iffully set forth in the body ofthis Agreement. 25. Real Estate Commission. Neither Buyer nor Seller shall be liable for any real estate commission, brokerage fees or finder's fees which may arise from this Agreement. The Buyer and Seller each represent and warrant that neither has engaged any broker, agent, or finder in connection with this transaction. Each party agrees to indemnify, defend and hold harmless the other from any claim that a real estate commission, brokerage fees or tinder's fees is owed or payable arising from this Agreement, based on the acts or omissions of the indemnifying party. The parties have executed this Agreement as of the date written above. 100 SOUTH MAIN STREE~ LLC BY: Its: CITY OF SANTAM BY: 1l~---- David N. Ream City Manager (signatures continued on next page) 6 (signatures continued from prior page) ATTEST: ~:~v PatncIa . Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney /' ,'! !/ {j 7 EXHIBIT "A" Legal Description IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA Lot 3 in Block I of Palmer's Addition to Town of Santa Ana, as shown on a Map recorded in Book 34, Page 87 of Miscellaneous Maps, Records of Los Angeles County, California. 8 EXHIBIT "B" Recorded At The Request Of: City of Santa Ana FREE RECORDING REQUESTED GOVERNMENT CODE 99 6103 & 27383 When recorded, please mail this instrument and tax statements to: 100 South Main Street, LLC 1200 North Main Street, Suite 900 Santa Ana, California 92701 SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCEL APPROVED AS TO APPROVED BY DESCRIPTION DESCRIPTION A,P. R/W MAP PROJECT TAXES FORM BY ATTY. DIRECTOR WRITTEN BY CHECKED-OK NUMBER NUMBER NUMBER 398-278-03 GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, does Hereby Grant to 100 SOUTH MAIN STREET, LLC, a California Limited Liability Company, fee simple title to the real property in the City of Santa Ana, County of Orange, State of California, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; IN WITNESS WHEREOF, the undersigned has executed this Grant Deed to be effective as of date of recording. CITY OF SANTA ANA ~.Jo ~d to '51t{h q Y?Ynt ~J r'l0lV- v.J'WY -.[ @ ~<2 tick' t j~~ 1Jil- .{\ V" t3 \ nlLe Nfvvf--- BY: David N. Ream City Manager STATE OF CALIFORNIA } } 5S. COUNTY OF ORANGE } On ,2007, before me, , personally appeared David N. Ream, City Manager of the City of Santa Ana, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the entity upon behalf of which the person acted, executed the instrument WITNESS my hand and official seal. Signature (This area for official notary seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE 9 EXHIBIT "A" LEGAL DESCRIPTION IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA Lot 3 in Block I of Palmer's Addition to Town of Santa Ana, as shown on a Map recorded in Book 34, Page 87 of Miscellaneous Maps, Records of Los Angeles County, California 10 EXHIBIT "C" RESTRICTIONS TO TITLE WARRANTY 1. General and special taxes and assessments for the fiscal year 2006-2007. 2. The terms and provisions contained in the document entitled Agreement executed by and between WM. Henry English, Susie M. English-Johnson, Ida M. English-Sova, Fred J. English, John T. English and Geo E. Peters and Hattie W. Peters, his wife, recorded December 21, 1921 as Instrument No. 68812 in Book 406, Page 465 of Deeds. 3. The fact that the land lies within the boundaries of the Santa Ana South Main Street Redevelopment Project Area, as disclosed by the document recorded July 8, 1982 as Instrument No. 82-235811 of Official Records. 4. A deed of trust and financing statement to secure an original indebtedness of $7,000,000.00 recorded October 6, 2005 as Instrument No. 05-793833 of Official Records. Dated: Trustor: September 26, 2005 100 South Main Street, LLC, a California Limited Liability Company Trustee: T.D. Service Company, a California Corporation Beneficiary: Great Lakes Credit Union, an Illinois State Chartered Credit Union The land and other property. Affects: Said Deed of Trust was not executed by the owners of record. The terms and provisions contained in the document entitled Assignment of Leases and Rents (California) recorded October 6, 2005 as Instrument No. 05-793834 of Official Records. 5. A financing statement recorded October 6, 2005 as Instrument No. 05-793835 of Official Records. Debtor: 100 South Main Street, LLC Secured party: Great Lakes Credit Union, or its successors, assigns and beneficiaries 6. Any facts, rights, interests or claims which would be disclosed by a correct ALTAI ACSM survey. 7. Rights of parties in possession. 11