PURCHASE AND SALE AGREEMENT
By and Between the
CITY OF ANAHEIM
a public body corporate and politic
And
ENCORE ANAHEIM, LLC
a Delaware limited liability company
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 public body corporate and politic, (the “City”) an d Encore Anaheim , LLC, a Delaware limited liability company , its successors and assigns (“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 a fee or easement interest in and to a certain excess of portions of excess street right-of-way lying west of Anaheim Boulevard and directly south of Midway Drive, as described on Attachment No. 1, consisting of approximately 30,700 square feet (the “Site”).
B. Buyer is the owner of a fee interest in the parcel described on Attachment No. 2. (“Buy er Property”), commonly known as 200 West Midway Drive , adjacent to and contiguous with the Site. Buyer has requested that the City vacate /abandon the Site, which request City staff shall continue to process in accordance with California Streets and Highways Code. This Agreement is subject to City Council’s approval of Buyer’s request to vacate/abandon the Site at a Public Hearing.
C. Buyer acknowledges that there are public utilities within the excess portion of street right of way, and the City will reserve easements for utilities as per attached Quitclaim Deed described on Attachment No. 3.
D. City desires to sell its surplus, vacant, ex cess street right of way, herein referred to as the Site for its fair market value.
E. Buyer desires to purchase the Site at fair market value assembled with Buyer Property for Buyer to construct a 156 attached townhome development.
F. The City’s sale of the Site pursuant to the terms of this Agreement is in the best interest of the City of Anaheim and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements.
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 Attachment No. 1, Attachment No. 2, and Attachment No.3, to the extent of any 3 inconsistency between the body of the Agreement and the Attachments, the Attachments shall be conformed to the body of the Agreement prior to their execution.
“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 (Ca rpenter- 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 Fidelity National Title Company located at 4210 Riverwalk Parkway, Suite 100, Riverside, CA 92505 Attn: Andrew Margo.
“Governmental Requirements” means all la ws, 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, Buyer or the Site.
“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 materi al 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 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 “hazar dous 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 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 4 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.
“Legal Description” means that certain legal description of the Site which is attac hed hereto as Attachment No. 1 and incorporated herein by this reference.
“Notice” shall mean a notice in the form prescribed by Section 501 hereof.
“Parties” are collectively the City of Anaheim, and Encore Anaheim, LLC, a Delaware limited liability company , its successors and assigns.
"Permitted Exceptions" is defined in Section 203.5 hereof.
"Public Hearing" is defined as hearing for the Anaheim City Council to consider Buyer’s request for the City to vacate/abandon the Site pursuant to California Streets and Highways Code.
“Purchase Price” is defined in Section 201 hereof.
"Quitclaim Deed" means the grant deed for the Conveyance of the Site from the City to Buyer, substantially in the form attached hereto as Attachment No. 3 and incorporate d herein by this reference.
"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.).
“Resolution” means a resolution for approval by the City Council that vacates a public street located on the Site, which includes a portions of excess street right -of-way lying west of Anaheim Boulevard and directly south of Midway Drive.
“Site” means the excess street rights of way totaling approximately 30,700 square feet of real property generally located west of Anaheim Boulevard and directly south of Midway Drive and adjacent to 200 West Midway Drive in the City of Anaheim, as delineated and more particularly described in Attachment No.1, subject to reservation of easements pursuant to Attachment No. 3
"Title Company" means Fidelity National Title Company.
5 200. 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 Buyer and Buyer agrees to purchase from City all of 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, subject to reservation of easements as stipulated in the Quitclaim Deed, and (the “Conveyance”) for the purchase price of One Milli on Six Hundred Thousand Dollars and No Cents ($1, 600,000.00) (the “Purchase Price”). The entirety of the Purchase Price shall be due from Buyer into Escrow prior to the close of Escrow.
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 o ut 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, direct or consequential by City or any person or entity claiming by or th rough City which may arise out of or relate in any respect to the acquisition of the Site by Buyer.
201.1 RESPONSIBILITIES OF BUYER. It shall be the sole responsibility of Buyer to undertake and effectuate the following:
(A) Sign and return executed Agreement.
(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 Agent with all documents as required to close Escrow in accordance with Section 203 herein.
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 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 Buyer (collectively, the “Additional Endorsements”). City shall pay all title insurance premiums for the CLTA standard owner’s form policy, and Buyer shall pay for any Additional Endorsements and all charges associated with the title insurance premium for any additional cost of obtaining any additional 6 coverage requested by 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 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 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 items in its possession or control relating to the Si te 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 relating 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, eng ineering 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.
202.2 Buyer’s Investigation of the Site. Representatives of 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, en gineers, 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 thirty (30) days after the Effective Date (the “Due Diligence Period”), for purposes of examining, inspecting and investigating the Site including the site, 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 acceptable 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 r eferred 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, 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”). 7 (B) Environmental Assessment. In addition to conducting a physical assessment of the Site, Buyer has had the right, at its sole cost and expense, to engage its ow n 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. 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 t he 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 th e expiration of the Due Diligence Period shall be conclusively deemed Buyer’s acceptance of the physical condition of the Site.
203. Escrow. Within ten ( 10) business 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.
(A) All funds received in the Escrow shall be depo sited 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 Escrow Agent to the City in the form of a wire transfer..
(B) Buyer agrees to pay all cost s, 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 interplead er, the Escrow Agent shall be fully released and discharged from all obligations imposed upon the Escrow Agent in the Escrow.
8 (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 t he 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 Approved Endorsements as set forth in Section 201.2 hereof and, if applicable, pay and charge Buyer for any Additional Endorsements or upgrade of the Title Policy pursuant to Section 201.2 hereof;
(C) disburse funds and record and deliver to Buyer the Quitclaim Deed when both City’s Conditions Precedent and 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 Quitclaim 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 issuanc e of the Title 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 necessary to comply with the provisions of FIRPTA and any simil ar 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 Requirement of the 1986 Tax Reform Act and/or a California Franc hise 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; and
9 (H) prepare and deliver to City and Buyer for their review and approval prior to the Closing a settlement statement; and
(I) record the Quitclaim 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 writt en instruments creating the exceptions 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 (10) days from 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 C ity 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 acce pt 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 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) a copy the recorded Resolution vacating portions of excess street right of way lying west of Anaheim Boulevard and directly south of Midway Drive and one (1) original Quitclaim Deed, duly executed by City and acknowledged.
(ii) City hereby authorizes Escrow Agent to deliver to Buyer by courier a copy of the executed Quitclaim Deed for acceptance by Buyer. 10 (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 Quitclaim 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 condi tions 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:
(i) No Default. Buyer is not i n 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.
11 (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 parties which 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 Quitclaim Deed.
(B) Buyer’s Conditions . Buyer’s obligation to clo se Escrow is conditioned upon the satisfaction or written waiver by Buyer of each and every one of the conditions precedent (i) through (viii ), inclusive, described below (“Buyer’s Conditions Precedent”), which are solely for the benefit of Buyer, and whic h 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 deposited 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 Site. Buyer shall not have elected to cancel Escrow and terminate this Agreement due to the environmental condition o f the Site pursuant to Section 202.3 hereof.
(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.
(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.
12 (D) Waiver. Buyer may at any time or times, at its 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 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 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 Esc row 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 A greement 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 addresses set forth in Section 501 hereof. If any objections are raised by written Notice within such ten (10) day period, the Escr ow 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 de manded 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 the Due Diligence period, and (2) the Parties’ satisfaction or written waiver of both City’s Conditions Precedent and Buyer’s Conditions Precedent. The Closing shall mean the time and day that the Quitclaim Deed are 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 a Quitclaim Deed with instructions to the Orange County Recorder and deliver original Quitclaim Deed to Buyer and a conforming copy thereof to City; 13 (B) deliver the Title Policy issued by the Title Company to 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) Disburse funds to City and 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. 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 has been fully authorized by all requisite actions on the part of the City.
b. No Conflict. To the best of City’s knowledge, 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 City is a party or by which it is bound.
c. No City Bankruptcy. City is not the subject of a bankruptcy proceeding.
d. Leases and Other Interests. To the best of 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. City holds a fee title interest or easement interests in and to the Site.
f. Governmental Compliance. To the best of City’s knowledge, 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 applicabl e to its use and operation. If any such notice or notices are received by City following the Date of this Agreement, City shall, within ten (10) days of receipt of such notice, notify Buyer.
g. Until title to the Site is conveyed to Buyer, Seller shall , upon learning (i) any fact or condition which would cause any of the warranties and representations in this Section 14 not to be true or (ii) any material change in the condition of the Site, immediately give notice of such fact or condition to Buyer, and B uyer 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 represe nts and warrants to City as of the Effective Date as follows:
a. Authority. Buyer is taking title to the Site as 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 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 P urchase; Limited Release. Buyer acknowledges and agrees that City will deliver the Site to 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, includi ng, 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 Buyer intends to put the Site. Buyer r epresents 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 necessar y 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, firm s, 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 S ite, 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:
15 “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Until the exchange of title, Buyer shall, upon learning of any fact or condition which would cause any of the warranties and repres entations in this Section not to be true or any material change in the condition of the Site, immediately give Notice of such fact or condition to City, and City shall have the right to approve or disapprove such fact or condition, and upon any such disapproval, terminate this Agreement.
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 da mages 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 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 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 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 Buyer, be terminated by Notice thereof to City. Nothing in this Section shall limit or prohibit Buyer’s right to pursue any legal right or remedy against City 16 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.
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 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 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 City, service of process on 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 s hall 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, overnight courier, 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 time of personal delivery or FAX tran smission 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:
17 If to Buyer: Encore Anaheim, LLC
770 Tamalpais Drive, Suite 401B
Corte Madera, CA 94925
Glen Martin ([email protected])
Julian Nam ([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
FAX No. (714) 765-5225
502. Enforced Delay; Extension of Times of Performance . In a ddition 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; 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 commence to run from the date of such Notice. Times of performance under this Agreement may also be extended in writing by the mutual 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 City is not that of a partnership or joint venture and that Buyer and City shall not be deemed or construed for any purpose to be the agent of the other.
18 504. 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 Manager 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 wr itten, 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 part y deems material. This Agreem ent includes pages 1 through 21 and Attachment Nos. 1 through 3 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. City and Buyer agree to mutually consider reasonable requests for amendments to this 19 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 lo cal 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 t he 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 effect 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 m ade of the essence with respect to the performance by Buyer and 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 a ll 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 me mber, official or employee of City shall be personally liable to Buyer, or any successor in interest, in the event of any Default or breach by City or for any amount which may become due to Buyer or its successors, or on any obligations under the terms of this Agreement.
20 519. 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 ent ity 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, representativ e, agent or employee of 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 on which this Agreement is executed by City (“Effective Date”).
[SIGNATURES ON FOLLOWING PAGE]
21 IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
“Buyer”
Encore Anaheim LLC,
a Delaware limited liability company
Dated: ________________, By: _______________________________________ Name:
Its:
"City"
City of Anaheim
a public body corporate and politic
Dated: ________________, By: _______________________________________ Name:
Its:
ATTEST:
CITY CLERK
_________________________________
THERESA BASS
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Date: ___________________________
148412.2
ATTACHMENT NO. 1
MAP AND LEGAL DESCRIPTION
ATTACHMENT NO. 2
BUYERS PROPERTY
PRELIMINARY REPORT Chicago Title Company
YOUR REFERENCE: ORDER NO.: 00155556-996-SD1-RT4
CLTA Preliminary Report Form – Modified (11/17/06) Page 3 EXHIBIT “A”
LEGAL DESCRIPTION
THE LAND R EFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A (A PORTION OF APN 082-185-58):
LOTS 4, 5, AND 6 IN BLOC K 5 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COU NTY OF ORANGE, STATE OF CALIFO RNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANEOUS
MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE ALLEY
ADJOINING SAID LOTS TO T HE WEST, AS SAID ALLEY IS SHOWN ON SAID MAP, AS A BANDONED BY
THAT CERTAIN RESOL UTION OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, A CERTIFIED COPY OF WHICH WAS RECORDED MARCH 31, 1950 IN BOOK 1993, PAGE 14 OF OFFICIAL RECORDS OF SAID COUNTY, SAID PORTION BEING BOUNDED AS FOLLOWS:
ON THE NORTH BY THE WE STERLY PROLONGATION OF THE NOR TH LINE OF SAID LOT 4; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS PARCELS 200218 -1 AND 100367 -1 IN THAT CERTAIN FINAL ORDER OF CONDEMNATION, SUPERIOR COURT CASE NO. 757531 (LEAD CASE) (CONSOLIDATED WITH CASE NO. 759654), A CERTIFIED COPY OF WHICH WAS RECORDED SEPTEMBER 08, 1999 AS INSTRUMENT NO. 19990648269 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY.
ALSO EXCEPTING FROM SAID LOTS 5 AND 6 AND THAT PORTION OF SAID ALLEY LYING SOUTH OF THE WESTERLY PROLONGA TION OF THE NORTH LINE OF SAID LOT 5, ONE -HALF OF ALL OIL, GAS,
MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE GRANT DEED FROM ADAM M. FO LLMAN AND OTHERS, RECORDE D OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL B (A PORTION OF APN 082-185-58):
LOTS 1 THROUGH 6 INCLUSIVE AND LOTS 21 THROUGH 26 INCLUSIVE, IN BLOCK 4 OF TRACT NO. 419,
IN THE CITY OF ANAHEIM, COUNTY OF OR ANGE, STATE OF CALIFORNIA , AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 O F MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE ALLEY, 12.00 FEET IN WIDTH, IN SAID BLOCK 4,
AS SAID ALLEY IS SHOWN ON SAID MAP, AS ABAN DONED BY THAT CERTAIN RES OLUTION OF THE
BOARD OF SUPERVISORS OF ORANGE COU NTY, A CERTIFIED COPY OF WHICH WAS RECORDED MARCH 29, 1956 IN BOOK 3454, PAGE 473 OF OFFICIAL RECORDS OF SAID COUNTY, SAID PORTION BEING BOUNDED AS FOLLOWS:
ON THE NORTH BY THE EASTERLY PROLONGATION OF THE NORTH LINE OF SAID LOT 26; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
ALSO TOGETHER WITH THAT PORTION OF THE WEST HALF OF CLEMENTINE STREET, ABUTTING LOTS 1, 2 AND 3 OF SAID BLOCK 4 ON THE EAST, WHICH UPON VACATION WOULD RE VERT TO SAID LAND BY OPERATION OF LAW.
EXCEPTING FROM SAID LOTS 1 AND 2 A ND THAT PORTION OF THE EASTERL Y ONE -HALF OF SAID ALLEY ADJOINING SAID LOTS 1 AND 2, ALL MINERAL, OIL AND GAS RIGHTS, AS RESERVED IN THE DEED FROM EDWARD LEWIS ANDERSON AND OTHERS, RECORDED JANUARY 28, 1954 IN BOOK 2659, PAGE 153 OF OFFICIAL RECORDS.
PRELIMINARY REPORT Chicago Title Company
YOUR REFERENCE: ORDER NO.: 00155556-996-SD1-RT4
EXHIBIT A
(Continued)
CLTA Preliminary Report Form – Modified (11/17/06) Page 4
ALSO EXCEPTING FROM SAID LOTS 3, 4, 5, 6, 21, 22, 23, 24, AND 26, AND THAT PORTION OF SAID ALLEY LYING SOUTH OF THE WESTERLY PROLONGATION OF THE NORTH LINE OF SAID LOT 3, AND THAT PORTION OF THE WESTERLY ONE -HALF OF SAID ALLEY ADJOINING SAID LOT 26, ONE -HALF OF
ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE DEED FROM ADAM M. FOLLMAN AND OTHERS, RECORDED OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL C (APN 082 -185-28; APN 082 -185-29; APN 082 -185-30; APN 082 -185-31; A PORTION OF APN 082 - 185-58):
LOTS 1 THROUGH 6 INCLUSIVE AND LOTS 21, 22, 23, AND 26 IN BLOCK 3 OF TRACT NO. 419, IN THE
CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA , AS SHOWN ON A MAP RECOR DED IN BOOK 16, PAGE 2 OF MISCELLANEOUS MAPS, REC ORDS OF ORANGE COUNTY, CALIFOR NIA, TOGETHER WITH THAT PORTION OF THE ALLEY, 12.00 FEET IN WIDTH, LYING WITHIN SAID BLOCK 3,
AS SAID ALLEY IS SHOWN ON SAID MAP, AS ABANDONED BY THAT C ERTAIN RESOLUTION OF THE
BOARD OF SUPERVISORS OF ORANGE COUNTY, A CERTIFIE D COPY OF WHICH WAS RECORDED MARCH 29, 1956 IN BOOK 3454, PAGE 473 OF OFFICIAL RECORDS OF SAID COUNTY, AND IN THAT CERTAIN RESOLUTION NO. 70R -213 OF THE CITY COUNCIL OF THE CITY OF A NAHEIM, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 08, 1970 IN BOOK 9285, PAGE 548 OF OFFICIAL RECORDS, SAID PORTION BEING BOUNDED AS FOLLOWS:
ON THE NORTH BY THE EASTERLY PROLONGATION OF THE NORTH LINE OF SAID LOT 23; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
ALSO TOGETHER WITH THOSE PORTIONS OF THE EAST HALF OF CLEMENTINE STREET ABUTTING LOT 26 ON THE WEST, THE W EST HALF OF THE ALLEY IN SAID BLOCK 3 ABUTTING SAID LOT 2 6 ON THE EAST, THE EAST HALF OF SAID ALLEY ABUTTING LOTS 1, 2 AND 3 ON THE W EST AND THE WEST HALF OF LE MON AVENUE ABUTTING LOTS 1, 2, 3 AND 4 ON THE EAS T WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
EXCEPTING FROM SAID LOTS 5, 6, 21 AND 22, AND THAT PORTION OF SAID ALLEY LYING SOUTH OF THE WESTERLY PROLONGATIO N OF THE NORTH LINE OF SA ID LOT 5, ONE -HALF OF ALL OIL, GAS,
MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE GRANT DEED FROM ADAM M. FOLLMAN AND OTHERS, RECORDED OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL D (A PORTION OF APN 082-185-58):
LOTS 4, 5, 6, 21, AND 22 IN BLOCK 2 OF TRACT NO. 41 9, IN THE CITY OF ANAHEIM, COUNT Y OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE ALLEY, 12.00 FEET IN WIDTH, LYING WITHIN SAID BLO CK 2, AS SHOWN ON SAID MAP, AS ABANDONED BY THAT CERTAIN RESOLUTION NO. 63R -953 OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, A CERTIFIED COPY OF WHICH WAS RECORDED DECEMBER 13, 1963 I N BOOK 6844, PAGE 687 OF OFFICIAL RECORDS OF SAID COUNTY, AND IN THAT CERT AIN RESOLUTION NO. 70R -213 OF TH E CITY COUNCIL OF THE CITY OF ANAHEIM, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 08, 1970 IN BOOK 9285, PAGE 548 OF OFFICIAL RECORDS OF SAID ORANGE C OUNTY, SAID PORTION BEING BOUNDED AS FOLLOWS:
PRELIMINARY REPORT Chicago Title Company
YOUR REFERENCE: ORDER NO.: 00155556-996-SD1-RT4
EXHIBIT A
(Continued)
CLTA Preliminary Report Form – Modified (11/17/06) Page 5
ON THE NORTH BY THE WESTERLY PROLONGATION OF THE NORTHERLY LINE OF SAID LOT 5; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
ALSO TOGETHER WITH THOSE PORTIONS OF THE EAST HALF OF THE ALLEY IN SAID BLOCK 2 ABUTTING LOT 4 ON THE WEST AND THE WEST HALF OF ZEYN STREET ABUTTING LO TS 4, 5 AND 6 ON THE EAST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PARCEL E (A PORTION OF APN 082-185-58):
THAT PORTION OF LEMON STREET, 53.00 FEET WIDE, LYING BETWEEN BLOCKS 2 AN D 3 OF TRACT NO. 419, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANE OUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AS ABANDONED BY THAT CERTAIN RESOLUTION NO. 70R -213 OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, A CERT IFIED COPY OF WHICH WAS RECORDED MAY 08, 1970 IN BOOK 9285, PAGE 548 OF OFFICIAL RECORDS, BOUNDED AS FOLLOWS:
ON THE NORTH BY THE WESTERLY PROLONGATION OF THE NORTH LINE OF LOT 22 IN SAID BLOCK 2; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
EXCEPTING FROM THE WESTERLY ONE -HALF OF SAID STREET, ONE -HALF OF ALL OIL, GAS,
MINERALS AND OTHER HYDROCARBON SUB STANCES, AS RESERVED IN THE GRANT DEED FROM ADAM M. FOLLMAN AND OTHERS, RECORDED OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL F (A PORTION OF APN 082-185-58):
THAT PORTION OF CLEMENTINE STREET, 53.00 FEET WIDE, LYING BETWEEN BLOCKS 3 AND 4 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANEO US MAPS, RECORDS OF ORANG E COUNTY, CALIFORNIA, AS ABANDONED BY THAT CERTAI N RESOLUTION NO. 70R -213 OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 08, 1970 IN BOOK 9285, PAGE 548 OF OFFICIAL RECORDS, BOUNDED AS FOLLOWS:
ON THE NORTH BY THE WESTERLY PROLONGATION OF THE NORTH LINE OF LOT 23 OF SAID BLOCK 3; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
EXCEPTING FROM THE WESTERLY ONE -HALF OF SAID STREET AND THAT PORTION OF THE
EASTERLY ONE -HALF OF SAID STREET LYING SOUTH OF THE WESTERLY PR OLONGATION OF THE NORTH LINE OF LOT 22 IN BLOCK 3 OF SAID TRACT NO. 419, ONE -HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE GRANT DEED FROM ADAM M.
FOLLMAN AND OTHERS, RECORDED OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL G (A PORTION OF APN 082-185-58):
THAT PORTION OF DICK EL STREET, 53.00 FEET WIDE, LYING BETWEEN BLOCKS 4 AND 5 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16 , PAGE 2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, AS ABANDONE D BY THAT CERTAIN RESOLUTION NO. 70R -213 OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, A CERTIFIED COPY OF WHICH WAS RECORDED MAY 08, 1970 IN BOOK 9285, PAGE 548 OF OFFICIAL RECORDS, BOUNDED AS FOLLOWS:
PRELIMINARY REPORT Chicago Title Company
YOUR REFERENCE: ORDER NO.: 00155556-996-SD1-RT4
EXHIBIT A
(Continued)
CLTA Preliminary Report Form – Modified (11/17/06) Page 6
ON THE NORTH BY A LI NE PARALLEL WITH AND 28.00 FEET SOUTHERLY OF THE CENTERLINE OF MIDWAY DRIVE, AS SHOWN ON SAID MAP; AND ON THE SOUTH BY THE SOUTH LINE OF SAID TRACT.
EXCEPTING THEREFROM, THAT PORTIO N LYING WEST OF THE CENTE RLINE OF SAID DICKEL STREET, AND NORTH OF THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF LOT 4 IN SAID BLOCK 5.
EXCEPTING FROM THE EASTERLY ONE -HALF OF SAID STREET LYING SOUTH OF THE WESTERLY PROLONGATION OF THE NORTH LINE OF LOT 24 IN BLOCK 4 OF SAID TRACT NO. 419, AND NORTH OF THE WESTERLY PROLONG ATION OF THE SOUTH LINE OF LOT 2 6 IN BLOCK 4 OF SAID TRACT, AND
FROM THE WESTERLY ONE -HALF OF SAID STREET LYING SOUTH OF THE EASTERLY PROLONGATION OF THE NORTH LINE OF LOT 5 IN BLOCK 5 OF SAID TRACT, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, AS RESERVED IN THE GRANT DEED FROM ADAM M. FOLLMAN AND OTHERS, RECORDED OCTOBER 24, 1952 IN BOOK 2402, PAGE 334 OF OFFICIAL RECORDS.
PARCEL H (APN 082-185-26; APN 082-185-27):
LOTS 24 AND 25 I N BLOCK 3 OF TRACT NO. 419, IN THE CITY OF ANAHEI M, COUNTY OF ORANGE, STATE OF CA LIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
TOGETHER WITH THOSE PORTIONS OF THE EAST HALF OF CLEMENTI NE ABUTTING SAID LAND ON
THE WEST AND THE WEST HA LF OF THE ALLEY IN SAID BLOCK AB UTTING SAID LAND ON THE EAST, WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PARCEL I (APN 082-185-35):
LOT 23 IN BLOCK 2 OF TRA CT NO. 419, IN THE CITY O F ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN B OOK 16, PAGE 2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
TOGETHER WITH THOSE PORTIONS OF THE EAST HALF OF LEMON STREET ABUTTING SA ID LAND ON
THE WEST AND T HE WEST HALF OF THE ALLEY IN SAID BLOCK ABUTTING SAID LAND ON THE EAST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PARCEL J (APN 082-185-51):
LOT 2, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFO RNIA, OF LOT LINE ADJUSTMENT NO. 316 RECORDED MAY 17, 1994 AS INSTRUMENT N O. 94 -0339926 OF OFFICIAL RECORDS.
TOGETHER WITH THOSE PORTIONS OF THE EAST HALF OF LEMON STREET ABUTTING SAID LAND ON
THE WEST AND THE WEST HALF OF THE ALLEY IN SAID BLOCK ABUTTING SAID LAND ON THE EAST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PRELIMINARY REPORT Chicago Title Company
YOUR REFERENCE: ORDER NO.: 00155556-996-SD1-RT4
EXHIBIT A
(Continued)
CLTA Preliminary Report Form – Modified (11/17/06) Page 7
PARCEL K (APN 082-185-39):
LOT 1 IN BLOCK 2 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16 , PAGE 2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
TOGETHER WITH THOSE PORTIONS OF THE WEST HALF OF ZEYN STREET ABUTTING SAID LAND ON
THE EAST AND THE EAST HALF OF THE ALLEY IN SAID BLOCK ABUTTING SAID LAND ON THE WEST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PARCEL L (APN 082-185-40):
THE NORTH 5 FEET OF LOT 2 I N BLOCK 2 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
TOGETHER WITH THOSE PORTI ONS OF THE WEST HALF OF ZEYN STR EET ABUTTING SAID LAND ON
THE EAST AND THE EAST HALF OF THE ALLEY IN SAID BLOCK ABUTTING SAID LAND ON THE WEST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
PARCEL M (APN 082-185-41):
LOTS 2 AND 3 IN B LOCK 2 OF TRACT NO. 419, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 2 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TOGETHER WITH THOSE PORTIONS OF THE WEST HALF OF ZEYN STREET ABUTTING SAID LAND ON
THE EAST AND THE EAST HALF OF THE ALLEY IN SAID BLOCK ABUTTING SAID LAND ON THE WEST WHICH UPON VACATION WOULD REVERT TO SAID LAND BY OPERATION OF LAW.
EXCEPTING THE NORTHERLY 5 FEET OF SAID LOT 2.
ATTACHMENT NO. 3
QUITCLAIM DEED
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. R/W ABA2019-00390
EXEMPT FROM RECORDING FEE -
GOVERNMENT AGENCY
(Government Code §§6103 & 27383)
By:
City Clerk, City of Anaheim
Adjacent to APN: 082-185-26, 27, 28, 29, 30, 31, 35, 39, 40, 41, 51 and 58
DOCUMENTARY TRANSFER TAX: $0.00
Exempt pursuant to Revenue and Taxation Code Section 11922 City Deed #
QUITCLAIM DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF ANAHEIM, a municipal corporation (“Grantor”) does hereby REMISE, RELEASE, AND FOREVER QUITCLAIM unto ENCORE ANAHEIM, LLC, a Delaware limited liability company (“Grantee”) Grantor’s right, title, and interest in and to those portion of excess street right-of-way in the City of Anaheim, County of Orange, State of California as described in Exhibits “A-1”, “A-2”, “A-3”, “A-4”, and “A-5” and shown in Exhibit “B-1”, “B-2”, “B-3”, “B-4”, and “B-5”, attached hereto and incorporated by reference herein.
EXCEPTING AND RESERVING THEREFROM, unto the City of Anaheim, an easement for public utilities, on over, under, above, along and across the entirety of the above-described land, together with all
rights of ingress and egress for the installation, operations, inspection, maintenance, repair, replacement, relocation, reconfiguration, and removal of any public utilities, including any and all fixtures and appurtenances.
City of Anaheim,
a municipal corporation
By: _________________________
Name: _______________________
Its: __________________________
SPACE ABOVE THIS LINE FOR RECORDER’S USE
ACKNOWLEDGMENT
State of California
County of _____________________________)
On _____________________
____ before me, ______ ___________________________________ (insert name and title of the officer)
personally appeared ______________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________ (Seal)
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.