PURCHASE AND SALE AGREEMENT
By and Between the
CITY OF ANAHEIM, a California charter city and municipal corporation,
And
Andrew J. Hopwood, an
individual
2 PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this “Agreement”), dated for purposes of identification only as _______________________ (the “Date of this Agreement”), is entered into by and between CITY OF ANAHEIM , a California charter city and municipal corporation, (the “City”) and Andrew J. Hopwood, an individual (“Buyer”). The City and Buyer are collectively referred to herein as the “Parties.”
RECITALS
The following recitals are a substantive part of this Agreement:
A. The City is the owner of certain land, as described on Exhibit “A” and depicted on Exhibit “B,” totaling approximately 4,878 square feet, located directly adjacent to Buyer’s Property and City-owned land commonly known as the Anaheim Hills Golf Course (the “Site”).
B.
Buyer is the owner of that real property generally known as 543 South Paseo Ganado Anaheim, CA 92807 located adjacent to the Site, more particularly described on Exhibit “C” (Buyer’s Property).
C.
Buyer acknowledges that there are existing Improvements and nonconforming uses (defined below) (due to current zoning on the Site ) and Buyer desires to purchase the Site in its existing condition.
D.
Buyer acknowledges the Site shall be subject to Deed Restrictions.
E. Buyer acknowledges that Buyer ’s Property and the Site shall be merged into a si ngle lot through a Lot Line Adjustment.
F. Buyer desires to acquire the Site for use as a rear yard and shall be kept free of permanent buildings or structures (other than any inexistence which have previously been permitted by the City and are considered conforming), and C ity desires to sell the Site for fair market value. This Agreement is subject to City Council’s declaration of the Site as exempt surplus land, following a regular meeting of the City Council and approval of the Agreement.
G. The City’s sale of the Site pursuant to the terms of this Agreement is in the best interest of the City of Anaheim, California and the health, safety, morals, and welfare of its residents, and is in accord with the public purposes and provisions of applicable state and local laws and requirements.
3 NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE CITY AND BUYER AGREE AS FOLLOWS:
100. DEFINITIONS.
“ Agreement” means this Purchase and Sale Agreement by and among the Parties and includes Exhibit “A”, “B”, “C”, and Attachment No. 1; to the extent of any inconsistency between the body of the Agreement and the Attachments, the Exhibit and the Attachments shall be conformed to the body of the Agreement prior to their execution.
“Deed Restrictions” means those property rights retained by the City and stipulated in the Grant Deed as Covenants.
“Environmental Laws” means (i) Sections 25115, 25117, 25122.7 or 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter - Presley-Tanner Hazardous Substance Account Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33 U.S.C. §1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901
et seq. (42 U.S.C. §6903) or (viii) Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §6901 et seq.
"Escrow" means the escrow for the conveyance of the Site from the City to Buyer.
"Escrow Agent" means Chicago Title Company located at 725 South Figueroa Street Los Angeles, California 90017.
“Governmental Requirements” means all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees, of the United States, the State of California, the County of Orange, the City of Anaheim and of any other political subdivision, agency or instrumentality exercising jurisdiction over City, the Buyer, or the Site.
“Grant Deed” means the grant deed for the conveyance of the Site from the City to the Buyer, substantially in the form attached hereto as Attachment No. 1 and incorporated herein by this reference.
“Hazardous Materials” means 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”, “acutely hazardous waste”, “extremely hazardous waste”, or “restricted hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of 4 the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “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 byphenyls, (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Code of Regulations, Chapter 20, (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., (xii) methyl -tert butyl ether, or (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment.
“Improvements” means those existing improvements including, but not limited to, a concrete pad, retaining walls, fence, and stairway, either unpermitted or permitted and not constructed by the City or at the request of the City.
“Legal Description” means that certai n legal description of the Site which is attached hereto as Exhibit “A” and incorporated herein by this reference.
“Lot Line Adjustment” means that certain document where the Site is added to the Buyer’s Property merging the Site and the Buyer’s Property resulting in the creation of a single lot (herein after referred to as Buyer’s Combined Property). The approved lot line adjustment shall be reflected in a deed, which shall be recorded with the Orange County Recorder’s Office.
“Notice” shall mean a notice in the form prescribed by Section 501 hereof.
“Parties” are collectivel y the City of Anaheim , a California charter city and municipal corporation, corporation, and Andrew J. Hopwood, an individual.
"Permitted Exceptions" is defined in Section 203.5 hereof.
“Purchase Price” is defined in Section 201 hereof.
“Resolution” means a resolution for approval by the Anaheim City Council that declares the Site as exempt surplus land and approves the Agreement.
5 "Relocation Laws" shall mean, collectively, the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the implementing regulations of Handbook 1378 of the Department of Housing and Urban Development, the California Relocation Assistance Law (Government Code Section 7260, et seq.), and the Relocation Assistance and Real Property Acquisition Guidelines adopted by the California Department of Housing and Community Development (Title 25, California Code of Regulations Section 6000, et seq.).
“Site” means that portion of City- owned land designated by Anaheim City Council as exempt surplus L and which is less than 5,000 square feet in area with no record access, is contiguous to Buyers Property, as delineated in Exhibit “B” Map, and more particularly described in Exhibit “A” and is subject to Permitted Exceptions and the C ovenants stipulated in the Grant Deed.
"Title Company" means Chicago Title Company.
200. BUYER’S ACQUISITION OF THE SITE
201. Purchase and Sale. Subject to all of the terms and conditions set forth in this Agreement, the City agrees to sell to the Buyer and the Buyer agrees to purchase from the City all of the City’s right, title , and interest in and to the Site , together with all rights, privileges, access rights, tenements, hereditaments, rights -of-way, easements and appurtenances thereto, if any, and (the “Conveyance”) for the purchase price of Nineteen Thousand Dollars and Zero Cents ($19,000.00) (the “Purchase Price”). The entirety of the Purchase Price shall be due from Buyer prior to the close of escrow as listed in section 203.9 herein.
The Site shall remain under its current zoning. The Buyer or subsequent property owner, at their expense, shall initiate a Reclassification and a General Plan Amendment, pursuant to the requirements and procedures set forth in Chapter 18.68 (General Plan Amendments) and Chapter
18.76 (Zoning Amendments) of the Anaheim Municipal Code, prior to the establishment of any alternate use or structure to provide for consistent Zoning and General Plan Land Use designations.
City acknowledges and agrees that the term “Purchase Price” as used herein and the full amount of such Purchase Price to be paid by Buyer to City is full consideration for, inclusive of, and all-inclusive compensation for: any and all of City’s interests in the Site and any rights or obligations which exist or may arise out of Buyer’s acquisition of the Site, including without limitation, City’s fee interest in the land and severance damages, if any, pre-condemnation damages, if any, loss of business goodwill, if any, costs, interest, attorneys’ fees, relocation assistance or benefits and moving expense due or compensable under the Relocation Laws, and any claim for compensation or other legal remedy of whatever kind or nature, tangible or intangible, direc t or consequential by City or any person or entity claiming by or through City which may arise out of or relate in any respect to the acquisition of the Site by the Buyer.
201.1 RESPONSIBILITIES OF BUYER. It shall be the sole responsibility of Buyer to undertake and effectuate the following:
6 (A) sign and return the executed Agreement and Grant Deed.
(B) pay the cost of escrow and recording fees, notary fees and any state, county or local documentary transfer fees applicable to this transaction.
(C) prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, if any such forms are provided for or required by law.
(D) provide escrow officer with all documents as required to close escrow in accordance with Section 203 herein.
(E) submit to the Public Works Development Services Division for review and approval a Lot Line Adjustment document. The document shall be approved by the City Surveyor and recorded, along with conforming deed, in the office of the Orange County Recorder . If, based on City Records and at the discretion of the City, the Site is not in conformance with the Subdivision Map Act, the Buyer will submit documentation demonstrating the subject parcel was created by a map. Otherwise, the Buyer shall submit an application for a Subdivision Map Act Certificate of Compliance to the Public Works, Development Services Division. A Certificate of Compliance shall be approved by the City Surveyor and recorded in the office of the Orange County Recorder . The Parties agree that Buyer shall submit a Lot Line Adjustment Document prior to the close of Escrow in order to satisfy this condition.
201.2 Title Insurance. Title Company shall issue and deliver to Buyer a CLTA owner’s policy of title insurance, together with the Approved Endorsements (the “Title Policy”), insuring that fee simple title to the Site is vested to the Buyer and the Condition of Title.
The Title Company shall provide City with a copy of the Title Policy. The Title Policy shall be in the amount of the Purchase Price; provided, however, that the Title Company shall, if requested, provide any endorsements other than the Approved Endorsements reasonably requested by City (collectively, the “Additional Endorsements”). City shall pay all title insurance premiums for the CLTA standard owner’s form policy, and Buyer shall pay for all charges associated with the title insurance premium for any additional cost of obtaining any additional coverage requested by the Buyer, including the difference between a CLTA standard owner’s policy and an ALTA extended owner’s policy.
202. Condition of the Site.
202.1
Disclosure. City hereby represents and warrants to the Buyer that City has not received any written notice or communication from any government agency having jurisdiction over the Site, notifying City or any third party of, and City has no actual 7 knowledge of, the presence of surface or subsurface zone Hazardous Materials in, on, or under the Site, or any portion thereof. Within ten (10) days of the Effective Date, City shall deliver to Buyer copies of all documents, reports, agreements, or other i tems in its possession or control relating to the Site that have not already been provided to the Buyer, including, without limitation, the following (collectively, the “Due Diligence Materials”):
(i) all licenses, leases, and permits affecting or relatin g to the ownership, subdivision, possession or development of the Site or the construction of improvements thereon, and all amendments and modifications thereto; (ii) applications and correspondence or other written communications to or from any governmental entity, department or agency other than Buyer regarding any permit, approval, consent or authorization with respect to the development of the Site or the construction of improvements thereon; (iii) the most recent survey, if any, pertaining to the Site or any portion thereof; and (iv) soils reports, engineering data, environmental reports, and other data or studies pertaining to the Site or any portion thereof that have not been previously delivered to Buyer or its consultants.
Notwithstanding the foregoing, Buyer acknowledges that there are improvements on and within the Site, including, but not limited to, a concrete pad, retaining walls, fence, and stairway, not constructed by the City or at the request of the City, and any Code Enforcement cases pertaining to improvements encroaching onto the Site shall be the responsibility of the Buyer to rectify. Buyer agrees to disclose the “as is” condition of the Site to potential parties acquiring Buyer’s Combined Property including the improvements encroaching on and within the Site. Buyer agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense cost, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with any and all improvements encroaching on or within the Site.
202.2 Buyer’s Investigation of the Site. Representatives of the Buyer have had the right to access the Site during regular business hours and upon reasonable Notice for the purpose of obtaining data and conducting surveys and tests necessary to reasonably assess the suitability of the Site. Buyer and its representatives, agents, engineers, consultants, contractors, and designees shall continue to have the right to enter onto the Site from and after the Effective Date through and including the date which is fifteen (15) days after the Effective Date (the “Due Diligence Period”), for purposes of examining, inspecting and investigating the Site including the City-owned Exempt Surplus Land, soil, subsurface soils, drainage, seismic and other geological and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes, if any, and, at Buyer’s sole and absolute discretion, determining whether the Site is accepta ble to Buyer. Buyer shall, in a timely manner, repair any and all damage to the Site caused by such inspections or investigations.
To the fullest extent permitted by law, Buyer agrees to indemnify, defend (at City's option), and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Buyer's (or Buyer's contractors' or subcontractors', if any) (i) acts, errors, or omissions, (ii) performance or failure to perform, or (iii) work performed by, or on behalf of, Buyer, 8 relative to Buyer’s investigation of the Site; except for those Claims which arise out of the sole negligence or willful misconduct of City.
(A) Soils and Engineering Assessment. Buyer has had the right, at its sole cost and expense, to engage its own consultants to conduct a physical assessment and make such investigations as Buyer deems necessary, including having prepared any “Soils Reports” and/or “Engineering Reports” of the Site, and Buyer shall promptly be provided a copy of any reports and test results provided by City’s consultants (the “City’s Soils and Engineering Reports”).
(B) Environmental Assessment. In addition to conducting a physical assessment of the Site, the Buyer has had the right, at its sole cost and expense, to engage its own environmental consultant (“Buyer’s Environmental Consultant”) to conduct an environmental assessment and make such investigations as Buyer deems necessary.
202.3 Approval or Disapproval of Condition of Site. The Buyer shall approve or disapprove of the physical condition of the Site. Buyer shall notify City and Escrow Agent in writing (“Buyer’s Due Diligence Notice”) on or before the expiration of the Due Diligence Period of Buyer’s approval or disapproval of the Due Diligence Materials, the condition of the Site and Buyer’s investigations with respect thereto. Buyer’s disapproval of any of said items shall constitute Buyer’s election to terminate this Agreement and cancel the Escrow. Buyer’s failure to deliver Buyer’s Due Diligence Notice on or before the expiration of the Due Diligence Period shall be conclusively deemed Buyer’s acceptance of the physical condition of the Site.
203. Escrow. Within five (5) days after the Effective Date, the Parties shall open Escrow for the Conveyance with the Escrow Agent. Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow Agent (the “Opening of Escrow”). Escrow Agent shall provide each of the Parties with written confirmation of the date of the Opening of Escrow.
203.1 Escrow Instructions. This Agreement constitutes the joint escrow instructions of City and Buyer for the purchase of the Site, and the Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. Any amendment of these escrow instructions shall be in writing and signed by both City and Buyer. At the time of any amendment, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. In the event of any conflict between the provisions of this Agreement and Escrow Agent’s standard instructions, this Agreement shall prevail. All communications from the Escrow Agent to City or Buyer shall be directed to the addresses and in the manner established in Section 501 of this Agreement for notices, demands, and communications between City and Buyer.
203.2 General Provisions Applicable to Escrow Agent. The following general provisions shall be applicable to the Escrow Agent.
9 (A) All funds received in the Escrow shall be deposited in a separate interest -earning escrow account with any bank doing business in the State of California and approved by Buyer. Funds shall be delivered from the Escrow Agent to the City in the form of a cashier’s check.
(B) The Buyer agrees to pay all costs, damages, judgments, and expenses, including reasonable attorneys’ fees, suffered or incurred by the Escrow Agent in connection with, or arising out of the Escrow, except for those arising from Escrow Agent’s gross negligence, willful misconduct or fraud in the performance of its obligations and duties with respect to the Escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by the Escrow Agent. In the event that the Escrow Agent files a suit in interpleader, the Escrow Agent shall be fully released and discharged from all obligations imposed upon the Escrow Agent in the Escrow.
(C) All proration's and/or adjustments called for in the Escrow shall be made on the basis of a thirty (30) day month unless the Escrow Agent is otherwise instructed in writing.
203.3 Authority of Escrow Agent. The Escrow Agent is authorized to, and shall:
(A) pay and charge Buyer for any Escrow Costs payable under Section 203.4 hereof and pay and, if applicable, charge Buyer for the cost of drawing the deed, recording fees, notary fees and any state, county or local documentary transfer fees;
(B) pay and charge the City for the premium of the Title Policy and any Additional Endorsements requested by the City as set forth in Section 201.2 hereof and, if applicable, pay and charge the Buyer for any upgrade of the Title Policy pursuant to Section 201.2 hereof;
(C) disburse funds and record and deliver to Buyer the Grant Deed when both City’s Conditions Precedent and the Buyer’s Conditions Precedent to the Closing are satisfied or waived in writing by the Party for whom the condition was established, provided, however, that funds deposited as part of the Purchase Price shall not be disbursed by the Escrow Agent unless and until the Escrow Agent has recorded the Resolution and Grant Deed and delivered the Title Policy to Buyer;
(D) insert appropriate amounts and the date of the Closing in documents deposited by the Parties in the Escrow;
(E) do such other actions as necessary to fulfill the Escrow Agent’s obligations under this Agreement, including, if applicable, obtaining the Title Policy and recording any instrument delivered through Escrow if necessary and proper in the issuance of the Ti tle Policy;
(F) within the discretion of the Escrow Agent, direct City and Buyer to execute and deliver any instrument, affidavit or statement, and to perform any act reasonably 10 necessary to comply with the provisions of FIRPTA and any similar state act or regulation promulgated thereunder. City agrees to execute a Certificate of Non-Foreign Status by individual transferor, a Certificate of Compliance with Real Estate Reporting R equirement of the 1986 Tax Reform Act and/or a California Franchise Tax Board Form 590 or similar form to assure Buyer that there exist no withholding requirements imposed by application of law as may be required by the Escrow Agent, on forms supplied by the Escrow Agent;
(G) prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms, including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms and/or withholding are provided for or required by law;
(H) prepare and deliver any relevant documents, as necessary described herein, to City and Buyer for their review and approval prior to the Closing a settlement statement; and
(I) record a Resolution declaring the Site as exempt surplus land and approving the sale of the Site immediately prior to the recordation of the Grant Deed.
203.4 Costs of Escrow. Buyer shall pay all of the Escrow Costs.
203.5 Review of Title.
(A) Review of Record Title. Within fifteen (15) days of the Effective Date, Buyer shall cause Title Company or another title company mutually acceptable to the Parties to deliver to Buyer a Preliminary Title Report together with copies of all written instruments creating the excep tions specified therein, and plat maps plotting all easements specified therein and a copy thereof to City. Title Company shall charge Buyer for the Preliminary Title Report.
Buyer shall review the title report, and Buyer shall have ten (1 0) days from the Buyer’s receipt of the Preliminary Title Report to give Notice to City and the Escrow Agent of Buyer’s approval or disapproval of the Preliminary Title Report, including without limitation any Exceptions. If Buyer notifies City of Buyer’s disapproval of any items, City shall have the right, but not the obligation, to remove any disapproved items after receiving Notice of Buyer’s disapproval or provide assurances reasonably satisfactory to Buyer that such items will be removed or remedied on or before the Closing. City shall exercise such right by Notice to Buyer within ten (10) days of receipt of Notice from Buyer of Buyer’s disapproval. If City cannot or does not elect to remove any disapproved items, then Buyer shall have ten (10) days after the expiration of City’s ten (10) day election period to either (i) give City Notice that Buyer intends to proceed with the purchase of the Site subject to the disapproved items or (ii) give City Notice that Buyer does not elect to accept the purchase of the Site and elects to terminate the Escrow and this Agreement, whereupon any sums deposited by Buyer into escrow and all interest earned thereon shall be returned to Buyer. The Exceptions to title approved by Buyer as provided herein shall hereinafter be referred to as the “Permitted Exceptions” and/or the “Condition of Title.” Buyer shall have the right to approve or disapprove in the manner provided in this Section any Exception reported by 11 the Title Company or otherwise discovered after Buyer has approved the Condition of Title (which are not created by Buyer).
203.6 Submittals into Escrow. The Parties shall submit documents and funds into Escrow as set forth in this Section.
(A) Submittals by City.
(i) At least two (2) days prior to Closing, City shall submit into Escrow one (1) certified original Resolution and one (1) Grant Deed, duly executed by City and acknowledged.
(ii) City hereby authorizes Escrow Agent to deliver to Buyer by courier a copy of the executed Grant Deed for acceptance by the Buyer with a copy provided to Counsel for Buyer via electronic mail
(iii) A non- foreign transferor affidavit in a form acceptable to Escrow Agent and California Franchise Tax Board Form 590-RE.
(iv) any and all documents required by Escrow Agent to carry out and close the Escrow pursuant to this Agreement.
(B) Submittals by Buyer. At least two (2) days prior to the Closing, Buyer shall submit into Escrow the following:
(i) One (1) original of a certificate of acceptance of the Grant Deed, duly executed by Buyer and acknowledged.
(ii) Funds equal to the remainder balance of the Purchase Price, as specified in Section 201 above.
(iii) any and all other sums and documents required by Escrow Agent to carry out and close the Escrow pursuant to this Agreement, including the Escrow fees and Buyer’s portion of prorations, if any.
203.7 Conditions of Closing. The Closing is conditioned upon satisfaction of the terms and conditions designated in this Section.
(A) City’s Conditions. City’s obligation to close Escrow is conditioned upon the satisfaction or written waiver by City of each and every one of the conditions precedent (i) through (vii) inclusive, described below (the “City’s Conditions Precedent”), which are solely for the benefit of City, and which shall be satisfied or waived by the time periods provided for herein:
12 (i) No Default. Buyer is not in default of any of its material obligations under the terms of this Agreement and all representations and warranties of Buyer contained herein shall be true and correct in all material respects.
(ii) Execution of Documents. Buyer shall have executed and delivered into Escrow all documents to which Buyer is a Party.
(iii) Deposit of Funds. Buyer shall have deposited all funds and shall have made all payments required to be deposited and made by Buyer for the Closing pursuant to this Agreement.
(iv) Physical Condition of Site. Buyer shall not have elected to cancel Escrow and terminate this Agreement due to the physical condition of the Site pursuant to Section 202.3 hereof.
(v) Environmental Condition of Site. Buyer shall not have elected to cancel Escrow and terminate this Agreement due to the environmental condition of the Site pursuant to Section 202.3 hereof.
(vi) No Litigation. No litigation shall be pending or threatened by any third party(ies) which seek/seeks to enjoin the transactions contemplated herein.
(vii) Certificate of Acceptance. Buyer shall have executed and returned one (1) original of a certificate of acceptance of the Grant Deed.
(B) Buyer’s Conditions. Buyer’s obligation to close Escrow is conditioned upon the satisfaction or written waiver by Buyer of each and every one of the conditions precedent (i) through (ix), inclusive, described below (the “Buyer’s Conditions Precedent”), which are solely for t he benefit of Buyer, and which shall be satisfied or waived by the time periods provided for herein:
(i) No Default. City is not in default of any of its obligations under the terms of this Agreement and all representations and warranties of contained herein shall be true and correct in all material respects.
(ii) Execution of Documents. City shall have executed and deposit into Escrow all documents to which it is a Party hereunder.
(iii) Physical Condition of Site. Buyer shall not have elected to cancel Escrow and terminate this Agreement due to the physical condition of the Site pursuant to Section 202.3 hereof.
(iv) Environmental Condition of the Site. Buyer shall not have elected to cancel Escrow and terminate this Agreement due to the environmental condition of the Site pursuant to Section 202.3 hereof.
13 (v) Review and Approval of Record Title. Buyer shall have reviewed and approved the condition of title, as provided in Section 203.5 (A) hereof.
(vi) Title Policy. The Title Company shall, upon payment of the Title Company’s regularly scheduled premium, be irrevocably committed to issue the Title Policy upon the Close of Escrow, in accordance with Section 201.2 hereof.
(vii) No Litigation. No litigation shall be pending or threatened by any third parties which seeks to enjoin the transactions contemplated herein
(viii) Site a Legal Parcel. The Site shall be a separate legal parcel free of any claims of ownership interest(s) or possession by third parties.
(C) Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by Buyer or City, each Party shall use its diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing conditions requires the approval of a Party, such approval shall be in such Party’s sole and absolute discretion.
(D) Waiver. Buyer may at any time or times, at his election, waive any of the conditions set forth in the Section above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by Buyer and delivered to City. City may at any time or times, at its election, waive any of the co nditions set forth in the Section above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by City and delivered to Buyer.
203.8 Termination of Escrow. Prior to the termination of Buyer’s Due Diligence Period and in the event that Buyer determines that the condition of the Site is unsatisfactory pursuant to Section 202.3, then Buyer may, at Buyer’s sole discretion, terminate Escrow and this Agreement and demand the return of the amount delivered by Buyer to the City pursuant to Section 201 above and any deposits made into Escrow upon Notice to City and the Escrow Agent.
In addition, in the event that City does not elect to remove Buyer-disapproved items in the Preliminary Title Report and Buyer determines not to proceed with the purchase of the Site pursuant to Section 203.5 (A), then Buyer may terminate Escrow and this Agreement and demand the return of the amount delivered by Buyer to the City pursuant to Section 201 above and any deposits made into Escrow upon Notice to City and the Escrow Agent.
Also, if the Escrow is not in a condition to close by the Closing Date, then either Party which has fully performed under this Agreement may, in writing, demand the return of money, documents or property and terminate the Escrow and this Agreement. If either Party makes a written demand for the return of its money, documents or property, this Agreement shall not terminate until ten (10) business days after the Escrow Agent shall have delivered copies of such demand to the other Party at the respective ad dresses set forth in Section 501 hereof. If any 14 objections are raised by written Notice within such ten (10) day period, the Escrow Agent is authorized to hold all money, documents or property until instructed by a court of competent jurisdiction or by mutual written instructions of the Parties. If no such objections are timely made, the Escrow Agent shall immediately return the demanded money and/or documents, and the escrow cancellation charges shall be paid by the undemanding Party. Termination of the Escrow shall be without prejudice as to whatever legal rights, if any, either Party may have against the other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the Closing as soon as possible consistent with the terms of this Agreement. Nothing in this Section shall be construed to impair or affect the rights of Buyer to specific performance.
203.9 Closing of Escrow. Escrow shall close no later than the date that is five (5) days after the later of (1) the expiration of the Due Diligence Period, and (2) the Parties’ satisfaction or written waiver of both City’s Conditions Precedent and the Buyer’s Conditions Precedent. The Closing shall mean the time and day that the Grant Deed is filed for record with the Orange County Recorder. The Closing Date shall mean the day on which the Closing occurs.
203.10 Closing Procedure. Escrow Agent shall:
(A) record the Grant Deed with instructions to the Orange County Recorder to deliver the Grant Deed to Buyer and a conforming copy thereof to City;
(B) deliver the Title Policy issued by the Title Company to the Buyer;
(C) file any informational reports required by Internal Revenue Code Section 6045(e), as amended, and any other applicable requirements;
(D) deliver the FIRPTA Certificate, if any, to Buyer; and
(E) forward to Buyer and City a separate accounting of all funds received and disbursed for each Party and copies of all executed, recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
300. REPRESENTATIONS AND WARRANTIES.
301. City’s Representations. The City represents and warrants to Buyer as of the Effective Date as follows:
a. Authority. City is a duly organized chartered municipal corporation formed within and in good standing under the laws of the State of California. City has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by City. The Cityhas been fully authorized by all requisite actions on the part of the City.
15 b. No Conflict. To the best of the City’s knowledge, the City’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which the City is a party or by which it is bound.
c. No City Bankruptcy. The City is not the subject of a bankruptcy proceeding.
d. Leases and Other Interests. To the best of the City’s knowledge, subject to the rights of any entity or person under any of the Permitted Exceptions, there are no tenants or other persons who have a lawful interest in the Site and no person, firm, partnership or corporation is in possession or has the right to possess the Site or any portion of it.
e. Title. The City holds a fee title interest or easement interests in and to the Site.
f. Governmental Compliance. To the best of the City’s knowledge, the City has not received any notice from any governmental agency or authority alleging that the Site is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by the City following the Date of this Agreement, the City shall, within ten (10) days of receipt of such notice, notify Buyer.
g. Until title to the Site is conveyed to Buyer, the City shall, upon learning (i) any fact or condition which would cause any of the warranties and representations in this Section not to be true or (ii) any material change in the condition of the Site, immediately give written notice of such fact or condition to Buyer, and Buyer shall have the right to approve or disapprove of such fact or condition, and upon disapproval to terminate this Agreement and receive a full refund of all amounts paid by Buyer pursuant to Section 201.
302. Buyer’s Representations. Buyer represents and warrants to City as of the Effective Date as follows:
a. Authority. Buyer is taking title to the Site as his sole and separate property.
Buyer has full right, power and lawful authority to enter into and perform its obligations under this Agreement and the execution, performance and delivery of this Agreement by Buyer has been fully authorized by all requisite actions on the part of Buyer.
b. No Conflict. To the best of Buyer's knowledge, Buyer's execution, delivery and performance of its obligations under this Agreement will not constitute 16 a default or a breach under any contract, agreement or order to which Buyer is a party or by which it is bound.
c. No Buyer Bankruptcy. Buyer is not the subject of a bankruptcy proceeding.
d. As is Purchase; Limited Release. Buyer acknowledges and agrees that City will deliver the Site to the Buyer at the Closing in an “as-is” condition, with no warranty, express or implied, by City except as otherwise set forth in Section 301 of this Agreement, 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 Site for the uses and purposes to which the Buyer intends to put the Site. Buyer represents to City that Buyer has conducted, or will conduct prior to the Closing, such investigations of the Site, including but not limited to, physical and environmental assessments as set forth in Section 202.2 of this Agreement, as Buyer deems necessary or desirable to satisfy itself as to the condition of the Site and the existence or nonexistence of hazardous or toxic substances on or discharged from the Site, and will rely solely on its own information and not on information provided by or on behalf of City. Except for City representations and warranties specifically provided in Section 301 of this Agreement, Buyer shall rely on Buyer’s own knowledge of the Site based on its own investigation of the Site in determining the Site’s physical condition.
Buyer and anyone claiming by, through or under Buyer hereby waive their right to recover from and fully and irrevocably release City and its employees, representatives, agents, servants, attorneys, affiliates, successors and assigns, and all persons, firms, corporations and organizations on their behalf (“Released Parties”) from any and all claims arising out of or in any way connected with City's use, maintenance or operation of the Site as such relates to the physical and environmental condition of the Site, including any Hazardous Materials on the Site, however they came to be placed there, but only if and to the extent such conditions are disclosed in Buyer’s Soils and Engineering Reports or Buyer’s Environmental Reports.
Buyer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Until the exchange of title, the Buyer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section not to be true or any material change in the condition of the Site, immediately give Notice o f such fact or condition to City, and the City shall have the right to approve or disapprove such fact or condition, and upon any such disapproval, terminate this Agreement.
17 400. DEFAULTS AND REMEDIES
401. Default. Subject to the extensions of time set forth in Section 602 of this Agreement, failure by either Party to perform any action or covenant required by this Agreement within the time periods provided herein following Notice and failure to cure as described hereafter, constitutes a “Default” under this Agreement. A Party claiming a Default shall give written Notice of Default to the other Party specifying the nature of such Default. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other Party, and the other Party shall not be in Default if such party within ten (10) business days from receipt of such Notice (or a lender during any lender cure period), with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with diligence.
402. Institution of Legal Actions. In addition to any other rights and remedies, and subject to the restrictions otherwise set forth in this Agreement, either Party may institute an action at law or in equity to seek the specific performance of the terms of this Agreement, to cure, correct or remedy and Default, to recover damages for any Default or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in Orange County, or in the United States District Court for District of California in which Orange County is located.
403. Termination by the Buyer Prior to the Closing. Prior to the Closing and provided that Buyer is not in Default of any of its obligations under this Agreement, in addition to any other remedies available to the Buyer, in the event that either:
(a) the City does not tender conveyance of title to the Site in the manner and condition and by the date required in this Agreement, and any such failure is not cured within fifteen (15) days after written demand by the Buyer; or
(b) City fails to perform a material obligation hereunder which constitutes a Default, including without limitation the failure to satisfy any of Buyer’s Conditions Precedent to the Closing which is to be performed by City as and at the times required under this Agreement;
then this Agreement may, at the option of the Buyer, be terminated by Notice thereof to City.
Nothing in this Section shall limit or prohibit the Buyer’s right to pursue any legal right or remedy against City for City’s failure to perform its obligations under this Agreement, provided that Buyer shall not be entitled, and Buyer hereby expressly waives its right, to seek consequential and/or punitive damages in the event of City’s default. [Lisa, advise if the client is ok with this waiver of certain remedies]
404. Termination by City Prior to the Closing. Prior to the exchange of title and provided that City is not in Default of any of its obligations under this Agreement, in addition to any other remedies available to City, in the event that Buyer fails to perform a material obligation 18 hereunder which constitutes a Default, including but not limited to the failure to satisfy any of City’s Conditions Precedent to the Closing which is to be performed by Buyer as and at the times required under this Agreement; then, as City’s sole and exclusive remedy under this Agreement, this Agreement may, at the option of City, be terminated by Notice thereof to Buyer.
405. Acceptance of Service of Process. In the event that any legal action is commenced by the City against Buyer, service of process on Buyer shall be made by personal service or in such other manner as may be provided by law. In the event that any legal action is commenced by Buyer against the City, service of process on the City shall be made in such manner as may be provided by law.
406. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.
407. Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
408. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
500. GENERAL PROVISIONS
501. Notices, Demands and Communications Between the Parties. Any notices, requests, demands, documents, approvals or disapprovals given or sent under this Agreement from one Party to another (collectively, “Notices”) may be personally delivered, transmitted by facsimile (FAX) transmission, email transmission, or deposited with the United States Postal Service for mailing, postage prepaid, to the address of the other Party as stated in this Section, and shall be deemed to have been given or sent at the t ime of personal delivery or FAX transmission /email transmission or, if mailed, on the third day following the date of deposit in the course of transmission with the United States Postal Service. Notices shall be sent as follows:
If to Buyer: Andrew J. Hopwood
543 S. Paseo Ganado
Anaheim, California 92807
c/o Salisbury Group, Inc., a California corporation
19800 MacArthur Boulevard, Suite 300
19 Irvine, California 92612
[email protected]
If to City: City Clerk, City of Anaheim
200 South Anaheim Boulevard
Anaheim, California 92805
FAX No. (714) 765-4105
With a copy to: Director of Public Works
City of Anaheim
200 South Anaheim Boulevard, Suite 276
Anaheim, California 92805
Reference: ABA2018-00375
FAX No. (714) 765-5225
502. Enforced Delay; Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to: war; insurrection; strikes; lockouts; riots; civil disturbances; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine; restrictions and other COVID -19 relat ed pandemic restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure or delays in securing necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; delays due to the existence or remediation of Hazardous Materials (other than as provided in this Agreement); acts or omissions of the other Party; acts or failures to act of the City, acting in its governmental capacity, or any other public or governmental Buyer or entity (other than the acts or failures to act of Buyer hereunder which shall not excuse performance by Buyer); or any other inability or cause beyond the control or without the fault of the Party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if Notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause.
If such Notice is delivered after such thirty (30) day period, the extension period shall commenc e to run from the date of such N otice. Times of performance under this Agreement may also be extended in writing by the mutual written agreement of Buyer and City. The Parties agree to consider requests for such extensions in good faith and with an intent to cooperate toward the implementation of the activities contemplated by this Agreement.
503. Relationship Between Buyer and City. It is hereby acknowledged by Buyer that the relationship between Buyer and the City is not that of a partnership or joint venture and that Buyer and the City shall not be deemed or construed for any purpose to be the agent of the other.
20 504. No Third Party Rights. The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
505. City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Mana ger or designee or Public Works Director or designee is authorized to act on behalf of City unless specifically provided otherwise or the context should require otherwise.
506. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement. This Agreement is executed in three (3) originals, each of which is deemed to be an original.
507. Integration. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Party is entering this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such party deems material. This Agree ment includes pages 1 through 23, EXHIBIT A-C, and Attachment No. 1, which constitute the entire understanding and agreement of the Parties , notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof.
508. Real Estate Brokerage Commission. Buyer and City each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with this transaction, and each agrees to defend and hold harmless the other from any claim to any such commission or fee resulting from any action on its part.
509. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
References to section numbers are to sections in this Agreement, unless expressly stated otherwise.
510. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement shall be interpreted as though prepared jointly by both Parties.
511. No Waiver. A waiver by either Party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement.
512. Modifications. Any alteration, change , or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party. The City and Buyer agree to mutually consider reasonable requests for amendments to this 21 Agreement that may be made by any of the Parties hereto, provided such requests are consistent with this Agreement and would not substantially alter the basic business terms included herein.
513. Severability. To the best knowledge and belief of the Parties to this Agreement, this Agreement contains no provision that is contrary to any federal, state or local law or to any regulatory requirement or other ruling or regulation of a federal, state or locality or that would be in breach of the obligations of either or both of the Parties under the terms and provisions of any legally binding agreement. However, if any provision of this Agreement or any part thereof, shall at any time be held to be invalid, in whole or in part, under any applicable federal, state or local law by a court of competent jurisdiction, or by arbitrators or an administrative agency of the federal, state or local government with proper jurisdiction, then such provision or a portion thereof, as appropriate, shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law; in such event, the validity and enforceability of the remaining provisions of this Agreement shall remain in eff ect and shall in no way be affected, impaired or invalidated, unless the invalidated provision(s) shall uniquely, materially and adversely affect the rights and obligations of a Party to this Agreement.
514. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
515. Legal Advice. Each Party represents and warrants to the other the following: it has carefully read this Agreement, and in signing this Agreement, it does so with full knowledge of any right which it may have; it has received independent legal advice from its respective legal counsel as to the matter set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, it has freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other Party, or its respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
516. Time of Essence. Time is expressly made of the essence with respect to the performance by Buyer and the City of each and every obligation and condition of this Agreement.
517. Cooperation. Each Party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements.
518. Non-Liability of Officials and Employees of City . No member, official or employee of the City shall be personally liable to the Buyer, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to the Buyer or its successors, or on any obligations under the terms of this Agreement. 22 519. Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms.
520. Costs of Conveyance. All costs not otherwise allocated herein related to City’s grant and conveyance of the Site to Buyer shall be borne equally by the Parties.
521. Binding on Heirs. This Agreement shall be binding upon the Parties hereto and their respective heirs, representatives, transferees, successors, and assigns.
522. Conflicts of Interest. No director, officer, official, representative, agent or employee of the City or Buyer shall have any financial interest, direct or indirect, in this Agreement.
523. Effective Date. This Agreement shall be effective on the date which is on the latest day of execution by the Parties. (“Effective Date”).
[remainder of page left blank; signatures appear on the next page] 23 IN WITNESS WHEREOF , the Parties have executed this Agreement on the respective dates set forth below.
“Buyer”
Andrew J. Hopwood, an individual
Dated: ________________, By: ______________________________________
"City"
City of Anaheim,
a California charter city and municipal corporation,
By: ____________________________________
Dated: ________________, MAYOR OF THE CITY OF ANAHEIM
ATTEST:
CITY CLERK
_________________________________
THERESA BASS
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Date: ___________________________
SALISBURY GROUP, INC., a California corporation
By: ______________________________
Lisa G. Salisbury, Esq.
Attorney for Buyer
143374
ATTACHMENT NO. 1
GRANT DEED
(To be attached)
Recording Requested by:
City Clerk of the City of Anaheim
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF ANAHEIM
P.O. Box 3222
Anaheim, California 92803
No. ABA20218-00375 ABA2018-00375
EXEMPT FROM RECORDING FEE -
GOVERNMENT AGENCY
(Government Code §§6103 & 27383)
By:
City Clerk, City of Anaheim
APN: portion of 085-571-24
DOCUMENTARY TRANSFER TAX: $ 20.90 City Deed #
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CITY OF ANAHEIM, a California charter city and municipal corporation (the “CITY”), does hereby grant to Andrew J. Hopwood , an individual (“GRANTEE”), in “as is” condition, all RIGHTS, TITLE, AND INTEREST in and to that certain real property, including all Improvements thereon, located in the City of Anaheim, County of Orange, State of California, as described in Exhibits “A” and “B” attached hereto and incorp orated by reference herein (“Site”), subject to all encumbrances , easements, covenants, rights, zoning, matters of record , exceptions, reservations, restrictions, and covenants contained herein.
The following covenants, conditions, rights, and restrictions (collectively, the “Covenants”) shall remain in full force and effect from the date of recordation of this Deed.
In order to comply with the General Plan and the CITY’s best interest , the Site is hereby restricted, in perpetuity, for rear yard purposes and shall be kept free of permanent buildings and structures other than any in existence which have previously been permitted by the City. All provisions of the Covenants and reservations shall be binding on and for the benefit of all of said Site and all persons acquiring any interest in said Site. GRANTEE hereby declares and agrees that the Covenants are to prevent any activity on or use of the Site that is inconsistent with the purpose of assuring the public benefit, enhancement and protection of the value, desirability and attractiveness of the Site and adjacent CITY-owned property.
SPACE ABOVE THIS LINE FOR RECORDER’S USE
1. Excavation, grading, and improvements but not repairs and maintenance on and to the Site shall require formal approval by the CITY, including applicable CITY fees and permits, in addition to the consent of easement holders of record.
2. The Site shall be maintained in compliance with State and Local agency public health and safety laws and guidelines. The Site shall be maintained and kept in good order and repair, including clearing, planting, and maintain ing landscaping in a manner compatible with the standards of landscaping, maintenance and repair as required by applicable provisions of the Anaheim Municipal Code.
Excepting therefrom and reserving unto the CITY:
1. Abutter’s right of access from the Site to adjacent CITY -owned property commonly known as Anaheim Hills Golf Course.
2. Right to drain surface or subsurface water from adjacent CITY -owned property onto the Site. Right to reasonably prohibit and restrict water draining onto surface or subsurface water from the Site onto adjacent CITY -owned property. Right to reasonably prohibit and restrict water draining onto Site from adjacent Grantee -owned property generally known as 543 S. Paseo Ganado and more particularly described as Lot 75 of Tract No. 8215 in Miscellaneous Maps 332, Pages 23-27, in the office of the County Recorder of Said County.
Subject to the following provisions, a ll covenants contained in this Grant Deed shall be covenants running with the land. All covenants contained in this Grant Deed without regard to technical classification or designation shall be binding for the benefit of Grantor, and such covenants shall run in favor of Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether Grantor is or remains an owner of any land or interest therein to which such covenants re late. Grantor, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breaches inure to the benefit of the Site. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Site is and shall be conclusively deemed to have consented and agre ed to every covenant, condition, rights and restriction contained in this Deed, whether or not any reference to this Deed is contained in the instrument by which such person acquired an interest in the Site. The Covenants shall be for the express benefit of the adjacent CITY-owned property (Anaheim Hills Golf Course), which shall be deemed the dominant tenement for purposes of the Covenants, and shall be enforceable by the CITY (so long as CITY owns any adjacent property).
In the event of any breach, violation or failure to comply with any of the Covenants which has not been cured within sixty (60) days after written notice from the CITY to do so (or if any such breach, violation or failure cannot be fully cured within such 60 -day period, then upon failure of Grantee to commence such cure within such period and thereafter to diligently complete such cure to the CITY’s reasonable satisfaction), the CITY in its sole and absolute discretion may bring an action to enforce any and all rights or remedies to which it may be entitled by law or equity.
Date of Execution:
___________________________
“CITY”
CITY OF ANAHEIM,
a California charter city and municipal corporation
By: ___________________________
Name: _________________________
Its: Mayor
APPROVED AS TO FORM
ROBERT FABELA, CITY ATTORNEY
By: ___________________________
Name: _________________________
Its:
ATTEST:
By: ___________________________
Name: _________________________
Its: City Clerk
GRANTEE’S CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated __________, 2023, from City of Anaheim, municipal corporation, to Andrew J. Hopwood, is hereby accepted by Andrew J. Hopwood and the Grantee consents to the recordation there of by himself , an individual.
Date of Execution:
___________________________
“Grantee”
By: ___________________________
Name: Andrew J. Hopwood