HomeMy WebLinkAboutBRISTOL CHINO II, LLC; GINSBORG BOYS, LLC; NMC SANTA ANA, LOLC 1-2010
OCT 2 2 201Q
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PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
(Commercial)
THIS AGREEMENT, entered into thiso,~day of C , 2010, 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 "City" or "Buyer"), and Bristol Chino II, LLC, a California limited liability company,
as to an undivided 42.51% interest; Ginsborg Boys, LLC, a California limited liability company, as to an
undivided 12.23% interest; and NMC Santa Ana, LLC, a California limited liability company, as to an undivided
45.26% interest (hereinafter called "Seller"), regardless of number or gender;
W I T N E S S E T H
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 City, and City agrees to purchase
from Seller, an easement over that certain real property (said easement is hereinafter referred to as "said real
property") described as follows:
The real property located in the State of California, County of Orange, City of Santa Ana, described as follows:
Parcel A described on EXHIBIT "A" and shown on "B" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as a portion 2311 S. Bristol Street, Santa Ana, CA)
Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms,
conditions, promises, covenants, agreements and provisions, to wit:
1. Conveyance by Seller. Seller agrees to convey said real property to City, by Easement Deed, at the
office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30)
days from and after the date on which the City has approved this Agreement.
2. Title to be Conveyed. The Seller's interest to the real property will be conveyed to City by Seller by
Easement Deed as set fort h in "Exhibit "C" to this Agreement.
3. Title Insurance. Concurrently with, and as a condition to, the conveyance of said real property to City,
within the time and at the place hereinabove specified for said conveyance of said real property, Escrow Agent
shall cause a policy of title insurance to be issued by the above mentioned title company, with the City therein
named as the insured, in the amount of TWENTY FOUR THOUSAND AND NO/100 Dollars ($24,000) insuring
the title of the City to said real property in the condition required by this Agreement, including as referenced or
described in paragraph 14 of this Agreement.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First
American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which
the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and
the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of
the escrow. Escrow to close within 120 days of the City's execution of this Agreement.
In addition to closing costs, $4,500 will be paid to Seller, through escrow, for reimbursement of appraisal fees.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this
Section 4 and of the General Provisions described in Exhibit "D" attached hereto and incorporated herein by
this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this
Agreement, shall carry out its duties as Escrow Agent hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes,
recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees, lender
transaction fees and any other closing costs incidental to the conveying of said real property to City. Penalties
for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived
pursuant to Civil Code Procedures Section 1265.240.
1
1176226.3 - S
The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it
under Section 4, Section 6, Section 11 and Exhibit "D" of the General Provisions of this Agreement.
5. Property Taxes. Real property taxes, if any, on said real property for the fiscal year within which said real
property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance
with the provisions of Section 4986 and 5081 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 City.
6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and
for the full purchase price for said Easement Deed, the total sum of TWENTY FOUR THOUSAND AND NO/100
Dollars ($24,000). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30)
days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby
authorized to pay the same to Seller upon and after:
(a) Conveyance of said real property by Seller to City as hereinabove provided;
(b) Acceptance by City of a Easement Deed conveying said real property to City; and
(c) Recordation of the Deed conveying said real property to City.
However, if the events described in Subsections (a) through (c) above have not occurred by November 30, 2010,
then either party shall have the right to cancel this Agreement by written notice thereof to the other party, so long
as the reason why same has not occurred is due to no fault of the cancelling party.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is
recorded, quiet and peaceful possession of said real property.
8. Waivers. The waiver by City 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.
9. Heirs. Assigns. Successors in Interest. 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.
10. 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.
11. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to
enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary
inspections.
12. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at
fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to
the realty), goodwill (if any), and severance damages. City had delivered to Seller an offer to purchase said real
property under threat of eminent domain pursuant to Government Code § 7267.2. Seller now wishes to avoid
eminent domain proceedings and sell said real property to the City, and City wishes to buy said real property from
Seller, pursuant to the terms and conditions of this Agreement in lieu of condemnation.
13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in
the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is:
NMC c/o Sanford D. Sigal
5850 Canoga Ave, suite 650
Woodland Hills, CA 91367
1176226.3 I
2 /I
14. Exceptions. City agrees to accept title to said real property subject to all matters listed or referenced in
the Preliminary Report from First American Title Company dated July 6, 2010, and any other matter of record or
which a survey would reveal.
15. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their
Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised
or could have been raised in connection with the acquisition of said real property by City.
16. Intentionally Left Blank.
17. Compliance With Environmental Laws. To the current actual knowledge of Seller, without duty of
inquiry or investigation, the Property complies with all applicable laws and governmental regulations including,
without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste,
waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal
Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive
Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the
rules, regulations, and ordinances of the city within which the subject property is located, the California
Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control
Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus.
However, Seller hereby notifies City that Chevron Oil Company previously occupied the real property as a service
station, and it is possible certain contamination may have occurred in connection with such use.
18. Intentionally Left Blank.
19. Continaency. It is understood and agreed between the parties hereto that the completion of this
transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City
herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance
and approval by City.
20. Modification and Amendment. This Agreement may not be modified or amended except in writing
signed by the Seller and City.
21. 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.
22. 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.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
24. No Reliance By One Party On The Other. Each party has received independent legal advice from its
attorneys with respect to its interest in 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.
25. 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.
26. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and
deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do
such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this
Agreement, as set forth in paragraph 4.
27. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties to this Agreement.
1176226.3 3
28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein
below has the power, authority and right to bind their respective parties to each of the terms of this Agreement.
29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if
fully set forth in the body of this Agreement.
30. Other Provisions. The terms of this Agreement are subject to approval of PNC Bank, Nation Association.
The parties have executed this Agreement as of the date written below.
SELLER: CITY/BUYER:
BRISTOL CHINO 11, LLC, CITY OF SANTA ANA
a California limited liability company,
as to an undivided 42.59% interest ,ffG'
BY: y
By: NEWMARK MERRILL COMPANIES, LLC, David N. Ream
a California limit liability company, its Manager City Manager
By: SIGAL INV STMENTS, LLC, Date:
a Californi limited I' bility company,
its Co-Ma agar. ATTEST:
By:
Sanf Si al, Manager BY: v/r ti • 1 ~/i
Maria D. Huizar
Date: Clerk of the Council
GINSBORG BOYS, LLC, Dated /al z a
a Californted liability company,
as to an un ided 92.23% interest
IAPPROVED AS TO FORM:
By: Allen M. Ginsborg, Manager Joseph W. Fletcher
City Attorney
Date:
BY:
Sandoval
NMC Santa Ana, LLC, aging Senior Assistant City Attorney
a California limited liability company,
as to an undivided 45.26% interest
By: NEWMARK MERRILL COMPANIES, LLC,
a California limited li ility company, its Manager
By: SIGAL INVEST ENTS, LLC,
a California lim ed lia ility company,
its Co-Manage
By:
Sanford igal, Manager
Date:
1176226-3 4
EXHIBIT A
LEGAL DESCRIPTIQN
PARCEL "A"
That portion of Section 25, Township 5 South, Range 10 West, San Bernardino Meridian,
in the City of Santa Ana, County of Orange, State of California, described in Corporation
Quitclaim Deed recorded January 2, 1979 in Book 12985, Pages 1663 FL 1664 of Official
Records in the Office of the County Recorder of said County, described as follows:
Commencing at the Northwest corner of said Section 25, said corner also being the
centerline intersection of Bristol Street with Warner Avenue (formerly Delhi Road), as
shown on Record of Survey map filed in Book 38, Page 12, Records of Survey in said
Office of the County Recorder; thence southerly along said centerline of Bristol Street,
South 00°53'33^ West, 276.20 feet; thence easterly and perpendicular to said centerline,
South 89°06'27" East, 50.00 feet to the easterly Right of Way line of said Bristol Street
and the True Point of Beginning; thence northerly along said Right of Way line,
North 00°53'33" East, 68.23 feet to the southwesterly corner of the Public Right of Way
as described in the Offer of Dedication, recorded February 13, 2009 as
Instrument No. 2009000065491, Official Records of said County Recorder; thence
easterly along the southerly line of the land described in said Offer of Dedication,
perpendicular to said centerline of Bristol Street, South 89°06'27" East, 12.00 feet to a
line which is parallel with and 62.00 easterly of said centerline of Bristol Street and the
beginning of a curve tangent to said parallel line, concave northwesterly, having a radius
of 110-00 feet; thence southerly along said curve 38.30 feet, through a central angle of
19-56'54", to a reverse curve, concave southeasterly, having a radius of 90.00 feet;
thence southerly along said curve 31_33 feet, through a central angle of 19°56'54", to the
True Point of Beginning.
Containing 423 square feet, more or less.
All as shown on Exhibit "B", attached hereto and by this reference rnadc a part hereof
Subject to all Covenants, Rights, Rights-of-Way and Ewassements of record, if any.
Prepared by me, or under my direction on
Raymond J. Rivera PLS 8324 ONA? LA O
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1176226.3 5
P. o. C. WARNER AVENUE (formerly Delhi Road)
NW CORNER N89'22'1 0°W
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EXHIBIT B
SANTA ANA A.P. NO. 410-431-02
<PWA SKETCH TO ACCOMPANY
P LEGAL DESCRIPTION
1176226.3
6
EXHIBIT "D"
GENERAL ESCROW PROVISIONS
All disbursements shall be made by Escrow's check. All funds received in this escrow shall be
deposited in one or more of your general escrow accounts with any bank doing business in the State of
California and may be transferred to any other general escrow account or accounts. The expression
"close of escrow" means the date on which instruments referred to herein are filed for record. All
adjustments are to be made on the basis of a 30-day month. Recordation of any instruments delivered
through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is
hereby authorized.
There shall be no prorations of any existing insurance policies in this escrow.
You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any
other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers
and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or
attorneys.
Should you before or after close of escrow receive or become aware of any conflicting demands or
claims with respect to this escrow or the rights of any of the parties hereto, or any money or property
deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your
part until such conflict is resolved to your satisfaction, and you shall have the further right to commence
or defend any action or proceedings for the determination of such conflict. The parties hereto jointly
and severally agree to pay all costs, damages, judgments and expenses, including reasonable
attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow (except if
caused by Escrow Agent's negligence, misconduct or breach of the escrow instructions), including, but
without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you
file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations
thereafter arising or imposed upon you in this escrow but not for any accruing prior thereto.
If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable
monthly charge as custodian thereof of not less than $10.00 per month.
Time is declared to be the essence of these instructions. If you are unable to comply within the time
specified herein and such additional time as is required to make an examination of the official records,
you will return all documents, money or property to the party entitled thereto upon satisfactory written
demand and authorization. Any amendment of and/or supplement to any instructions must be in
writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the
terms hereof.
These escrow instructions, and amendments hereto, may be executed in one or more counterparts,
each of which independently shall have the same effect as if it were the original, and all of which taken
together shall constitute one and the same instruction.
1176226.3 7