HomeMy WebLinkAboutC-8522-1 - Agreement for Purchase and Sale of Real Property and Escrow Instructions for 2807 Newport BlvdAGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS
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Escrow No. g2�°1?-O�i2lC
��? lab Date of Opening of Escrow: ,!j__, 201
To: Chicago Title Company ("Escrow Holder")
4041 MacArthur Boulevard
Suite 400
Newport Beach, California 92660
Attention: Karen L. Price, National Senior Escrow Officer
Telephone: 949-724-3113
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS ("Agreement") is made this day of 9� 4;)esember?``n"4y
201? ("Effective Date"), by and between MNG Newport Beach, LLC ("Seller") and City
of Newport Beach, a California municipal corporation and charter city ("City"). City and
Seller are sometimes hereinafter individually referred to as a "Party" and collectively as
the "Parties" to this Agreement.
RECITALS:
The following Recitals are a substantive part of this Agreement and are
incorporated herein:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of City.
B. Seller is the owner of that certain real property commonly known as 2807
Newport Boulevard [A.P.N. 047-110-36], located in the City of Newport Beach, County
of Orange, State of California, as more particularly described on Exhibit "A" and
depicted on Exhibit "B" attached hereto and by this reference incorporated herein,
together with all improvements now or hereafter constructed thereon, all easements,
licenses and interests appurtenant thereto and all intangible property owned or held by
Seller in connection with the such real property, including without limitation,
development rights, governmental approvals and land entitlements (collectively referred
to herein as the "Property").
C. City has the authority to acquire property for public uses utilizing City's
power of eminent domain. In lieu of City's exercise of said power and under the threat
thereof, Seller is willing to sell the Property to City and City is willing to purchase the
Property from Seller, upon the terms and conditions set forth in this Agreement.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 1
NOW, THEREFORE, in consideration for the benefits set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the Parties agree as follows:
TERMS AND CONDITIONS
1. PURCHASE AND SALE OF PROPERTY. City hereby agrees to purchase
from Seller, and Seller agrees to sell to City the Property, upon the terms and conditions
hereinafter set forth.
2. PURCHASE PRICE. The total purchase price for the Property, which
includes the value of the land and improvements is FOUR MILLION DOLLARS and
00/100 ($4,000,000.00) ("Purchase Price").
2.1 Payment of Purchase Price.
(a) Not later than five (5) business days following the Opening of
Escrow, as defined herein, City shall deposit in Escrow in good funds, the sum of
SEVENTY-FIVE THOUSAND DOLLARS and 00/100 ($75,000.00) ("Initial
Deposit"), which Initial Deposit shall be applicable to the Purchase Price upon
Closing. City shall have the unqualified and unrestricted right to terminate its
obligations under this Agreement on or before the expiration of the Due Diligence
Period, hereinafter defined. In the event this Agreement is terminated by City on
or before the expiration of the Due Diligence Period, the Initial Deposit shall be
promptly returned to City. If the City disapproves of any of the due diligence
items pursuant to the terms of Section 5, below, the Initial Deposit and Extension
Deposit (hereinafter defined), if any, shall remain refundable until all items are
approved by City, or this Agreement is terminated by City as specified herein.
(b) On or before the Closing Date, hereinafter defined, City shall
deposit the balance of the Purchase Price, subject to any other credits or debits
hereunder, with Escrow Holder in "good funds." "Good funds" shall mean a wire
transfer of funds, cashier's or certified check drawn on or issued by the offices of
a financial institution located in the State of California, or cash.
2.2 Interest Bearing Account. Escrow Holder shall deposit the funds specified
in Section 2.1 above in an interest bearing account. All interest earned on said funds
shall be credited to City.
3. ESCROW. This Agreement constitutes the joint escrow instructions of the
City and Seller. Escrow Holder, to whom these instructions are delivered, is hereby
empowered to act under this Agreement.
3.1 Opening Of Escrow. Within five (5) business days after the execution of
this Agreement, the Parties shall open an escrow ("Escrow") with the Escrow Holder by
causing an executed copy of this Agreement to be deposited with Escrow Holder.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 2
Escrow shall be deemed open on the date that City delivers this executed Agreement to
Escrow Holder. The Parties agree to perform all acts reasonably necessary to close
Escrow if and when required hereby.
3.2 Escrow Holder Is Authorized To And Shall:
(a) Pay and deduct from the Purchase Price any amount necessary to
satisfy any delinquent taxes together with penalties and interest thereon, and/or
delinquent or non -delinquent assessments or bonds except those which title is to
be taken subject to in accordance with the terms of this Agreement;
(b) Pay and deduct from the Purchase Price, up to and including the
total amount of unpaid principal and interest on note(s) secured by mortgage(s)
or deed(s) of trust, if any, and all other amounts due and payable in accordance
with terms and conditions of said trust deed(s) or mortgage(s) including late
charges, if any, except penalty for payment in full in advance of maturity shall,
upon demand(s), be made payable to the mortgagee(s) or beneficiary(ies)
entitled there under;
(c) Pay and charge Seller for all recording fees incurred in this
transaction including payment of reconveyance fees and forwarding fees for
partial or full reconveyances of deeds of trust or release or mortgage by Seller;
(d) Pay and charge Seller for any escrow fees, charges, and costs
payable under Section 7, below;
(e) Prorate, as between City and Seller, real estate taxes through the
close of escrow, with City to be charged with and have the benefit of the day of
the close of escrow.
(f) Disburse funds in accordance with this Agreement, and record the
Grant Deed in the Official Records of the County Recorder of Orange County,
California.
4. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM CITY AND
SELLER.
4.1 City. City agrees that on or before 1:00 p.m. on the business day
preceding the Closing Date, City will deposit with Escrow Holder all additional funds
and/or documents (executed and acknowledged, if appropriate) which are necessary to
comply with the terms of this Agreement, including without limitation, the following:
(a) The Purchase Price;
(b) A Preliminary Change of Ownership Statement completed in the
manner required in Orange County;
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 3
(c) Such funds and other items and instruments as may be necessary
in order for Escrow Holder to comply with this Agreement.
4.2 Seller. Seller agrees that on or before 1:00 p.m. on the business day
preceding the Closing Date, Seller will deposit with Escrow Holder such funds and other
items and instruments (executed and acknowledged, if appropriate) as may be
necessary in order for the Escrow Holder to comply with this Agreement, including
without limitation, the following:
(a) A grant deed conveying the Property to City in a form substantially
similar to the form as Exhibit "C" attached hereto and incorporated herein by this
reference ("Grant Deed").
(b) A Non -Foreign Affidavit on Escrow Holder's Standard form or a
form substantially similar thereto ("Non -Foreign Affidavit"); and
(c) Such funds and other items and instruments as may be necessary
in order for Escrow Holder to comply with this Agreement.
Escrow Holder will cause the Grant Deed to be recorded when (but in no event after the
date specified in Section 6.1 below) it can issue the Title Policy in the form described in
Section 7 below, and will hold for the account of Seller the items described above to be
delivered to Seller through Escrow, less costs, expenses and disbursements chargeable
to Seller pursuant to the terms hereof.
4.3 Assignment of Contracts. On or before five (5) business days following the
opening of Escrow, Seller shall deliver to City copies of all contracts affecting the
Property, including any lease affecting the Property ("Existing Lease"). City shall notify
Seller on or before the Due Diligence Date of City's approval or disapproval of each
contract. Seller shall terminate any contract disapproved by City. City's failure to notify
Seller within the time specified shall be considered disapproval. As to those contracts
City elects to assume, Seller shall assign same in a form agreed upon by the Parties.
As to those contracts City does not elect to assume, Seller shall terminate and
otherwise remain responsible for same after close of Escrow.
4.4 Miscellaneous Documents. On or before five (5) business days following
the opening of Escrow, Seller shall deliver to City all documents relating to the Property
which Seller may have in its possession including but not limited to copies of all Phase I
and Phase II Environmental Reports, together with engineering reports, surveys, soils
studies, environmental audits and reports, environmental impact report, and all other
third -party documents relating to the Real Property (other than appraisals and market
studies) for City's review and approval. City shall notify Seller on or before the Due
Diligence Date of City's approval or disapproval of each item. City's failure to notify
Seller within the time specified shall be considered disapproval. If City does not acquire
the Property, all said documents shall be promptly returned to Seller. In addition, Seller
shall deliver to City (or cause Escrow Holder to deliver to City), natural hazard
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 4
disclosure reports covering the Property in such form as required by law, which shall be
countersigned and returned to Seller and Escrow Holder.
4.5 Estoppel Certificate. In the event the Property is subject to an Existing
Lease as of the Closing (i.e., in the event the existing tenant holds over), at least ten
(10) calendar days prior to the Closing Date, Seller shall have delivered to Escrow
Holder an original Estoppel Certificate, and to City, copies thereof, dated within forty-five
(45) calendar days of the Closing Date, from the tenant under an Existing Lease. Such
Estoppel Certificate shall be in a form to be provided by City within two (2) business
days following delivery of notice by Seller to City that the tenant under the Existing
Lease is holding over and shall be reasonably approved by Seller. Seller shall use its
best efforts to obtain such Estoppel Certificate from the tenant under an Existing Lease
and Seller shall provide a Seller's estoppel in the event Seller is unable to obtain such
Estoppel Certificate from the tenant under an Existing Lease, provided, however, that
City shall not be required to complete its purchase unless Seller obtains an Estoppel
Certificate. The failure of Seller to obtain the Estoppel Certificates as set forth in this
Section 4.5 shall not constitute a breach of this Agreement by Seller if such certificate is
not procured despite Seller's best efforts, but shall entitle City to terminate this
Agreement.
5. DUE DILIGENCE PERIOD.
5.1 Inspection Rights. At City's own cost and expense, it may make an
independent investigation of the Property and all other aspects of this transaction, and
may rely thereon and on the advice of its consultants in entering into and terminating
this Agreement.
5.2 City Inspection. Commencing upon the Opening of Escrow and continuing
thereafter for thirty (30) calendar days ("Due Diligence Period"), City, its agents, and
employees shall:
(a) examine and inspect the Property and will know and be satisfied
with the physical condition, quality, quantity and state of repair of the Property in
all respects;
(b) review all instruments, records and documents which City deems
appropriate or advisable to review in connection with this transaction, including,
but not by way of limitation, any and all plans, specifications, surveys,
environmental assessments, existing leases and/or easement documents
reports, and title reports; and
(c) review all applicable laws, ordinances, rules and governmental
regulations (including those relating to building, zoning and land use) affecting
the development, use, occupancy or enjoyment of the Property;
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 5
5.3 Approval of Property After Inspection. On or before the expiration of the
Due Diligence Period, City may notify Escrow, in writing, of its approval of all
inspections conducted pursuant to Section 5.2. Should City fail to provide written notice
of its election to approve each inspection conducted pursuant to Section 5.2, City shall
be conclusively determined to have disapproved the condition of the Property, thereby
terminating this Agreement and neither City nor Seller shall have any further obligations
to the other, except for those obligations, which as outlined in this Agreement, expressly
survive termination.
5.4 Entry for Investigation. Subject to the conditions hereafter stated and the
rights of tenants in possession, Seller grants to City, its agents, employees, and
consultants a limited license to enter upon any portion of the Property for the purpose of
conducting engineering surveys, soil tests, investigations or other studies reasonably
necessary to evaluate the condition of the Property, which studies, surveys,
investigations and tests shall be done at City's sole cost and expense. City shall (a)
notify Seller prior to each entry of the date and purpose of intended entry and provide to
Seller the names and affiliations of the persons entering the Property; (b) conduct all
studies in a diligent, expeditious and safe manner and not allow any dangerous or
hazardous conditions to occur on the Property during or after such investigation; (c)
comply with all applicable laws and governmental regulations; (d) keep the Property free
and clear of all materialmen's liens, lis pendens and other liens arising out of the entry
and work performed under this paragraph; (e) maintain or assure maintenance of
workers' compensation insurance (or state approved self-insurance) on all persons
entering the property in the amounts required by the State of California; (f) provide to
Seller prior to initial entry a certificate of insurance evidencing that City has procured
and paid premiums for an all-risk public liability insurance policy written on a per
occurrence and not claims made basis in a combined single limit of not less than TWO
MILLION DOLLARS ($2,000,000.00) which insurance names Seller as additional
insured entitled to not less than thirty (30) days cancellation notice and is primary and
non-contributing with insurance carried by Seller, covering the actions of City, its
employees, agents, and independent contractors; and (g) return the Property to its
original condition following City's entry. City agrees to indemnify, defend, protect and
hold Seller and the Property free and harmless from any and all loss, liability, claims,
damages and expenses (including but not limited to attorneys' fees and costs) arising
directly or indirectly from the exercise of said license, or from City's failure to comply
with the conditions to City's entry onto the Property provided herein. Such undertaking
of indemnity shall survive Close of Escrow or the termination of this Agreement for any
reason. The limited license herein granted shall be co -extensive with the term of this
Agreement or any extension thereof.
6. CLOSING DATE.
6.1 Initial Closinq Date. Escrow shall close on or before fifteen (15) calendar
days from the expiration of the Due Diligence Period ("Closing Date"). The terms "the
Close of Escrow", and/or the "Closing" are used herein to mean the time Seller's Grant
Deed is filed for record by the Escrow Holder in the Office of the County Recorder of
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 6
Orange County, California. City and Seller each specifically agrees to strictly comply
and perform its obligations herein in the time and manner specified and waives any and
all rights to claim such compliance by mere substantial compliance with the terms of this
Agreement.
6.2 City shall have the right to extend the Closing Date by thirty (30) calendar
days ("Extension"), provided City has approved in writing its due diligence investigation
pursuant to Section 5.3 above and delivers to Escrow Holder the sum of FIFTY
THOUSAND AND 00/100 DOLLARS ($50,000.00) ("Extension Deposit"), which amount
shall be applicable to the Purchase Price and shall be deemed consideration for such
extension. The Extension Deposit shall be promptly returned to City, if Seller fails to
satisfy any of the conditions specified in Section 8.1, below, and those conditions are
not waived by City in writing prior to Closing.
6.3 Distribution of Documents. Following Close of Escrow, Escrow Holder
shall distribute the documents as follows:
(a) To City:
(i) One certified conformed copy of the Grant Deed, the original
to be mailed to City following recordation thereof;
(ii) One duplicate original each of the Bill of Sale, the
Assignment of Lease (if any), the Assignment of Contracts and the Non -
Foreign Affidavit; and
(iii) One certified copy, conformed if recorded, of any other
document delivered to Escrow Holder by City or Seller pursuant to the
terms hereof.
(b) To Seller:
(i) One duplicate original each of the Bill of Sale, the
Assignment of Lease (if any), the Assignment of Contracts and the Non -
Foreign Affidavit; and
(ii) One certified copy, conformed if recorded, of any other
document delivered to Escrow Holder by City or Seller pursuant to the
terms hereof.
7. TITLE POLICY.
7.1 Approval of Title. Following execution of this Agreement but in no event
later than five (5) calendar days following opening of Escrow, Seller shall deliver to City
a preliminary title report issued through Chicago Title Company ("Title Company"),
describing the state of title of the Property, ("Preliminary Title Report") together with
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 7
copies of all exceptions specified therein. City shall notify Seller in writing of any
objections City may have to title exceptions or other matters ("Disapproved Exceptions")
contained in the Preliminary Title Report within fifteen (15) calendar days after City's
receipt of the Preliminary Title Report ("City's Objection Notice"). If City fails to deliver
City's Objection Notice within said fifteen (15) calendar day period, City shall be
conclusively deemed to have approved the Preliminary Title Report and all matters
shown thereon. In the event City delivers City's Objection Notice within said period,
Seller shall have a period of ten (10) calendar days after receipt of City's Objection
Notice in which to notify City of Seller's election to either (i) agree to remove the
Disapproved Exceptions prior to the Close of Escrow; or (ii) decline to remove any such
Disapproved Exceptions ("Seller's Notice"). Seller shall only elect to decline to remove
Disapproved Exceptions which Seller in good faith believes Seller's reasonable efforts
would not result in removal or as to which removal would result in cost or expense to
Seller other than nominal administrative expense incurred in the process of removal.
Seller's failure to deliver Seller's Notice within said ten (10) calendar day period shall be
deemed Seller's election to decline to remove the Disapproved Exceptions. If Seller
notifies City of its election to decline to remove the Disapproved Exceptions, if Seller is
deemed to have elected to decline to remove the Disapproved Exceptions or if Seller is
unable to remove the Disapproved Exceptions, City may elect either to terminate this
Agreement and the Escrow or to accept title to the Property subject to the Disapproved
Exception(s). City shall exercise such election by delivery of written notice to Seller and
Escrow Holder within fifteen (15) calendar days following the earlier of (i) the date of
written advise from Seller that such Disapproved Exception(s) cannot be removed; or (ii)
the date Seller declines or is deemed to have declined to remove such Disapproved
Exception(s). If City fails to deliver said written notice of termination of this Agreement
and the Escrow within said fifteen (15) calendar day period, City's disapproval of the
Disapproved Exception(s) shall be deemed waived and City shall deemed to have
agreed to accept title to the Property subject to the Disapproved Exception(s).
Upon the issuance of any amendment or supplement to the Preliminary Title
Report which adds additional exceptions, the foregoing right of review and approval
shall also apply to said amendment or supplement, provided, however, that City's initial
period of review and approval or disapproval of any such additional exceptions shall be
limited to ten (10) calendar days following receipt of notice of such additional
exceptions.
7.2 Title Policy to be Issued to City. When Escrow Holder holds for City the
Grant Deed in favor of City executed and acknowledged by Seller covering the
Property, Escrow Holder shall cause to be issued and delivered to City and Seller as of
the Closing a CLTA standard coverage policy of title insurance ("Title Policy"), or, upon
City's request therefor, an ALTA standard coverage policy of title insurance, issued by
Title Company, with liability in the amount of the Purchase Price, covering the Property
and showing title vested in City free of encumbrances, except:
(a) All nondelinquent general and special real property taxes and
assessments for the current fiscal year;
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 8
(b) Easements, encumbrances, covenants, conditions, restrictions,
reservations, rights-of-way and other matters of record, as approved or deemed
approved by City pursuant to Section 7.1 above;
(c) The standard printed exceptions and exclusions contained in the
CLTA or ALTA form policy; and
(d) Any exceptions created or consented to by City, including without
limitation, any exceptions arising by reason of City's possession of or entry on the
Property.
8. CONDITIONS PRECEDENT TO CLOSE OF ESCROW.
(a) 8.1 Conditions to City's Obligations. The obligations of City under
this Agreement shall be subject to the satisfaction or written waiver, in whole or in
part, by City of each of the following conditions precedent: Seller has delivered all
documents required to be delivered under Section 4.2 above.
(b) All representations and warranties specified in Section 10.1 are true
and correct in all material respects.
(c) City's written approval of any other conditions specified in this
Agreement.
(d) Title Company has issued the Title Policy as required by Section 7
of this Agreement insuring title to the Property vested in City or other vestee
designated by City for vesting purposes only.
8.2 Conditions to Seller's Obligations. The obligations of Seller under this
Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by
Seller of each of the following conditions precedent:
(a) Escrow Holder holds and will deliver to Seller the instruments and
funds, if any, accruing to Seller pursuant to this Agreement.
8.3 Return of Initial Deposit. In the event Seller fails to satisfy any of the
conditions specified in Section 8.1, above, such conditions remain unsatisfied after two
(2) business days' notice, and those conditions are not waived by City in writing prior to
Closing, the Initial Deposit and Extension Deposit, if any, shall be promptly returned to
City and this Agreement shall be terminated pursuant to the terms of Section 9.5 below.
9. ESCROW PROVISIONS.
9.1 Escrow Instructions. This Agreement, when signed by City and Seller,
shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder,
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 9
City and Seller agree to execute Escrow Holder's standard escrow instructions,
provided that the same are consistent with and do not conflict with the provisions of this
Agreement. In the event of any such conflict, the provisions of this Agreement shall
prevail.
9.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to
the City and instruct the Orange County Recorder to mail the Grant Deed to City at the
address set forth in Section 28 after recordation. All funds received in this Escrow shall
be deposited in one or more general escrow accounts of the Escrow Holder with any
bank doing business in Orange County, California, and may be disbursed to any other
general escrow account or accounts. All disbursements shall be made by Escrow
Holder's check. This Agreement and any modifications, amendments, or supplements
thereto may be executed in counterparts and shall be valid and binding as if all of the
Parties' signatures were on one (1) document.
9.3 Proration of Real Property Taxes. All nondelinquent general and special
real property taxes shall be prorated to the Close of Escrow on the basis of a thirty (30)
day month and a three hundred sixty day (360) year. In the event that property taxes
are assessed on a parcel of real property which includes land other than the Property,
such proration shall include only taxes attributable to the Property, calculated in terms of
total gross square feet of land assessed pursuant to the tax statement versus total
gross square footage of the Property. Any supplemental tax bills received after Close of
Escrow shall be paid by Seller to the extent they relate to a period prior to Close of
Escrow, and by City, to the extent they relate to a period after Close of Escrow. If a
supplemental tax bill covers a period commencing before and continuing after Close of
Escrow, the party named in the bill will pay the tax and the other party shall reimburse
the first party its pro rata share within thirty (30) calendar days after receipt of a copy of
the tax bill and evidence of the second party's payment of same. The provisions of this
Section 9.3 shall survive Close of Escrow. If either party fails to pay its pro rata share of
taxes by the times herein provided, interest shall accrue on all unpaid amounts from
when owing until paid at five percent (5%) over the Federal Discount Rate quoted by the
Federal Reserve Bank of San Francisco on the 25th day of the month preceding the
date interest commences to accrue. Rents of the tenants under an Existing Lease, if
any, shall be prorated to the Closing Date based on rents actually collected. Any such
rents collected after the Closing Date by City which are attributable to the period prior to
the Closing Date shall be paid to Seller upon collection. Rents collected after the
Closing Date from tenants whose rental was delinquent at Closing and/or constituting
reimbursements for operating expenses paid by Seller shall be deemed to first apply to
costs of collecting such rents, second to rents which accrued after the Closing and third
to rentals accruing prior to the Closing Date. City shall have no obligation to commence
litigation or to collect rents or to terminate the tenant's right to occupancy based upon
tenant's failure to pay rentals which were delinquent at Closing and/or such
reimbursements; however, City shall use reasonable efforts to collect such delinquent
rents and shall reasonably and in good faith cooperate with Seller's attempts to collect
such rents at no cost or expense to City.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 10
9.4 Payment of Costs. Seller shall pay one-half (1/2) of the Escrow fee, title
insurance premiums for that portion of the Title Policy premium which would be incurred
for a CLTA form policy, and the charge for drawing the Grant Deed. City shall pay the
one-half (1/2) of the Escrow fee, charges for recording the Grant Deed, and that portion
of the Title Policy premium which is attributable to the additional cost of obtaining any
additional coverage requested by City, including the difference between CLTA and
ALTA coverage. All other costs of Escrow not otherwise specifically allocated by this
Agreement shall be apportioned between the parties in a manner consistent with the
custom and usage of Escrow Holder. This transaction is exempt from payment of
documentary transfer taxes.
9.5 Termination and Cancellation of Escrow. Time is of the essence of this
Agreement. If Escrow fails to close as provided above, Escrow shall terminate
automatically without further action by Escrow Holder or any Party, and Escrow Holder
is instructed to return all funds and documents then in Escrow to the respective
depositor of the same with Escrow Holder. Cancellation of Escrow, as provided herein,
shall be without prejudice to whatever legal rights City or Seller may have against each
other arising from the Escrow or this Agreement.
9.6 Information Report. The "Reporting Person" within the meaning of
Treasury Regulation Section 1.6045-4(e)(5) with respect to the transactions
contemplated by this Agreement shall be Escrow Holder. It is agreed that Escrow
Holder is an eligible person under Section 1.6045-4(e)(5)(ii) of said Regulations. Escrow
Holder hereby agrees to be responsible for complying with the reporting and other
requirements of Internal Revenue Code Section 6045(e) and the income tax regulations
promulgated thereunder. Pursuant to said regulations, the address for the transferor
and transferee are as set forth for Seller and City below, and the identifying information
regarding the real estate transferred is the legal description for the Property set forth
herein. Escrow Holder agrees to file the form required by said regulations between the
end of the calendar year in which the Close of Escrow occurs and February 28 of the
following calendar year. City and Seller agree (i) to cooperate with Escrow Holder and
with each other in completing any report and/or other information required to be
delivered to the Internal Revenue Service pursuant to Internal Revenue Code Section
6045(e) regarding the real estate sales transaction contemplated by this Agreement,
including without limitation, Internal Revenue Service Form 1099-S as such may be
hereinafter modified or amended by the Internal Revenue Service, or as may be
required pursuant to any regulation now or hereinafter promulgated by the Treasury
Department with respect thereto; (ii) that City and Seller, their respective employees
and attorneys, and Escrow Holder and its employees may disclose to the Internal
Revenue Service, any information regarding the Option Agreement, this Agreement or
the transaction contemplated herein as such party reasonably deems to be required to
be disclosed to the Internal Revenue Service by such party pursuant to Internal
Revenue Code Section 6045(e); (iii) that neither City nor Seller shall seek to hold any
such party liable for the disclosure to the Internal Revenue Service of any such
information; and (iv) to retain this Agreement for at least four (4) years following the
close of the calendar year in which the Close of Escrow occurs.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 11
9.7 Maintenance Obligations Prior to Close of Escrow. Seller agrees to
maintain the Property in the same or substantially similar condition as it exists as of the
Effective Date of this Agreement. Seller further agrees to keep the Property free from
unauthorized occupation, graffiti, and accumulation of debris or waste material.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Representations and Warranties. Seller hereby makes the following
representations and warranties to City, each of which (i) is material and relied upon by
City in making its determination to enter into this Agreement; (ii) is true in all respects as
of the date hereof and shall be true in all respects on the date of Close of Escrow on the
Property; and (iii) shall survive the Close of Escrow of the purchase and sale of the
Property' as well as any future transfer of the Property to City or any transferee,
successor or assignee of City:
(a) Seller has received no notice or has no actual knowledge that any
governmental authority or any employee or agent thereof considers any
construction of the proposed improvements on the Property or the proposed
operation, use or ownership of the Property to violate or have violated any
ordinance, rule, law, regulation or order of any government or agency, body or
subdivision thereof, or that any investigation has been commenced or is
contemplated respecting such possible violations.
(b) There are no pending or threatened litigation, allegations, lawsuits
or claims, whether for personal injury, property damage, landlord -tenant disputes,
property taxes, contractual disputes or otherwise, which do or may affect the
Property or the operation or value thereof, and there are no actions or
proceedings pending or, to the best of Seller's knowledge, threatened against
Seller before any court or administrative agency in any way connected with the
Property and neither the entering into of this Agreement nor the
consummation of the transactions contemplated hereby will constitute or result in
a violation or breach by Seller of any judgment, order, writ, injunction or decree
issued against or imposed upon it. There is no action, suit, proceeding or
investigation pending or threatened against Seller which would become a cloud
on City's title to and have a material adverse impact upon the Property or any
portion thereof or which questions the validity or enforceability of the transaction
contemplated by this Agreement or any action taken pursuant hereto in any court
or before or by any federal, district, county, or municipal department,
commission, board, bureau, agency or other governmental instrumentality.
(c) There are no contracts, leases, claims or rights affecting the
Property and no agreements entered into by or under Seller shall survive the
Close of Escrow that would adversely affect City's rights with respect to the
Property except as heretofore disclosed in writing by Seller to City or disclosed in
the Preliminary Title Report; for avoidance of doubt, Seller has disclosed its
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 12
predecessor in interest's Excess Sale Contract with McDonald's USA LLC dated
December 14, 2015, and executed January 12, 2016, which Excess Sale
Contract reflects an executory obligation to demolish the Property's building.
(d) Seller has the unimpeded power and authority to execute, deliver
and perform Seller's obligations under this Agreement and the documents
executed and delivered by Seller pursuant hereto.
(e) Seller is not a "foreign person" within the meaning of Section 1445
of the Internal Revenue Code of 1986, as amended.
All representations and warranties made hereunder are in addition to any
representations and warranties implied by law and in no event shall this Section 10.1 be
construed to limit, diminish or reduce any obligation of disclosure implied upon Seller by
law. The representations and warranties of Seller set forth in Section 10.1 hereof shall
survive Closing for a period of six months. Seller shall have no liability to City for a
breach of any representation or warranty unless written notice (the "Breach Notice")
containing a description of the specific nature of such breach shall have been given by
City to Seller prior to the expiration of said six month period and an action shall have
been commenced by City against Seller within thirty (30) calendar days following the
expiration of such six month period ("Outside Date").
10.2 Disclaimer of Representations and Warranties. City acknowledges that as
of expiration of the Due Diligence Period it will have had an adequate opportunity to
inspect the Property and to investigate its physical characteristics and conditions. Upon
the Close of Escrow, City shall be deemed to have waived any and all objections to the
physical characteristics and conditions of the Property which would be disclosed by a
reasonable and diligent inspection. City acknowledges that, except as specifically
provided herein, neither Seller nor any of its employees, agents, or representatives has
made any representations, warranties or agreements to or with City on behalf of Seller
as to any matters concerning the Property, the present use thereof, or the suitability of
City's intended use of the Property.
The foregoing disclaimer includes, without limitation, topography, climate, air,
water rights, utilities, present and future zoning, soil, subsoil, the acreage of the
Property or square footage of buildings located thereon, the purpose to which the
Property is suited, drainage, and access to public roads. City further acknowledges and
agrees that the Property is to be purchased, conveyed, and accepted by City in its
present condition, "AS -IS," and that no patent or latent physical condition of the
Property, whether or not known or discovered, shall affect the rights of either party
hereto. City has investigated and has knowledge of operative or imposed governmental
laws and regulations (including, but not limited to, zoning, environmental, including
specifically the regulations of the Environmental Protection Agency, and land use laws
and regulations) to which the Property may be subject, and is acquiring the Property on
the basis of its review and determination of the application and effect of such laws and
regulations. City has neither received nor relied upon any representations concerning
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 13
such laws and regulations made by Seller, Seller's employees, agents, or any other
person acting on behalf of Seller. Any agreements, warranties or representations not
expressly contained in this Agreement shall in no way bind Seller.
CITY AND SELLER ACKNOWLEDGE AND AGREE THAT THE FOREGOING
PROVISIONS OF THIS SECTION 10 HAVE BEEN FREELY BARGAINED FOR BY
THE PARTIES AND CONSTITUTES A MATERIAL CONSIDERATION TO SELLER
FOR THE SALE OF THE PROPERTY AND BUT FOR THIS PROVISION SELLER
WOULD NOT SELL THE PROPERTY TO CITY.
SlFftE'SNITIALS bTN4S INITIALS
10.3 Changed Circumstances. If Seller becomes aware of any fact or
circumstance which would change or render incorrect, in whole or in part, any
representation or warranty made by Seller under this Agreement, whether as of the date
given or any time thereafter until the Close of Escrow and whether or not such
representation or warranty was based upon Seller's knowledge and/or belief as of a
certain date, Seller will give immediate written notice of such changed fact or
circumstance to City, but such notice shall not release Seller of its liabilities or
obligations with respect thereto. Seller shall issue a certificate as of the Close of Escrow
stating that all the representations and warranties contained in Section 10.1 are true
and correct as of said date, or setting forth in detail which of such matters are not true
and correct.
11. INDEMNITY BY SELLER.
11.1 Seller shall hold harmless, indemnify and defend City, and the Property
from and against (i) any and all obligations, liabilities, claims, liens or encumbrances to
the extent the same are within the scope of coverage under any title policy issued for
the Property, whether direct, contingent or consequential, no matter how arising and in
any way related to the Property and arising or accruing on or before the date first above
written; (ii) any and all obligations, liabilities, claims, liens or encumbrances (including
those, if any, reflected by the Preliminary Title Report unless otherwise waived or
approved by City pursuant to Section 7, above), whether or not covered under any title
policy and whether the same are direct, contingent or consequential and no matter how
arising and in any way related to the Property and arising or accruing from or after
Seller's acquisition of the Property until the date first above written, or in any way
related to or arising from any act, conduct, omission, contract or commitment of Seller,
including, without limitation, any contract disclosed pursuant to Section 10.1, above,
which occurred or was entered into at any time or times on or before the date of the
Close of Escrow, which in any way relates to the Property, including without limitation,
any commitment or obligation of Seller, contractual or otherwise, to any third party, any
damage to the Property, or injury to or death of any person, employees or agents of
Seller, except for obligations, liabilities, claims, liens and encumbrances disclosed
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 14
herein or which City specifically agrees by the terms of this Agreement to assume or
take subject to; (iii) any loss or damage to City resulting from any material inaccuracy or
material breach of any representation or warranty of Seller or resulting from any breach
or default by Seller under this Agreement, or any other agreements relating to this
transaction; and (iv) all costs and expenses, including attorneys' fees, relating to any
actions, suits or judgments incident to any of the foregoing. Seller's indemnification
obligations identified in Sections 11.1(1), (ii), (iii), and (iv), above, are hereafter
collectively referred to as the "Indemnification Claims." As a condition to the Seller's
obligation to provide indemnification hereunder, (a) City will give written notice to Seller
of any Indemnification Claim actually brought stating in reasonable detail the basis for
which indemnification is being sought hereunder as soon as reasonably possible after
City's knowledge thereof ("Indemnification Notice"); provided, however, City's failure to
provide such Indemnification Notice to Seller will not relieve Seller of or from any of its
obligations hereunder unless and only to the extent that Seller suffers prejudice as a
result of such failure; provided, further, however, and notwithstanding anything in this
Agreement to contrary, Seller's indemnification obligationsshall expire only upon the
expiration of any applicable statute of limitations of any claim brought or able to be
brought under this Section 11. Should Seller fail to discharge or undertake to defend
City against an Indemnification Claim where City provides Indemnification Notice
pursuant to this Section 11, then City may settle such Indemnification Claim and Seller's
liability to City shall be conclusively established by such settlement, the amount of such
liability to include both the settlement consideration and the reasonable expenses,
including attorney's fees, incurred by City in effecting such settlement. Seller shall
otherwise have the right to control and direct the investigation, preparation, defense,
trial and settlement of each such Indemnification Claim and City shall reasonably
cooperate in the defense of such claim and shall furnish such records, information and
testimony and attend to such proceedings as may be reasonably requested in
connection therewith provided Seller has received City's prior written consent, which
consent shall not be unreasonably withheld or delayed. Seller shall make no admission
or settlement of any such Indemnification Claim which would give rise to liability on the
part of City without its prior written consent, which consent shall not be unreasonably
withheld or delayed.
12. SETTLEMENT OF CLAIMS.
12.1 Release of Claims by Seller. In exchange for the promises contained in
this Agreement, and except as to the obligations provided for in this Agreement, Seller
hereby waives, releases and forever discharges, and agrees to the extent permitted by
law that he will not in any manner institute, prosecute or pursue, any and all complaints,
charges, claims for relief, demands, damages, suits, actions or causes of action, of any
kind, whether in law or in equity, which he asserts or could assert, at common law or
under any statute, rule, regulation, order or law, whether federal, state or local, or on
any grounds whatsoever, against the City and/or any of its current or former officers,
councilmen, agents, representatives, employees, successors and assigns with respect
to any event, matter, claim, damage or injury, of any kind related to the Property as of
the date of this Agreement and/or the Closing.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 15
12.2 Release of Claims by City. In exchange for the promises contained in this
Agreement, and except as to the representations and warranties expressly made by
Seller contained in this Agreement that survive the Closing, effective upon the Closing,
City hereby waives, releases and forever discharges, and agrees to the extent permitted
by law that it will not in any manner institute, prosecute or pursue, any and all
complaints, charges, claims for relief, demands, damages, suits, actions or causes of
action, of any kind, whether in law or in equity, which it asserts or could assert, at
common law or under any statute, rule, regulation, order or law, whether federal, state
or local, or on any grounds whatsoever, against the other Parties and/or any of its or
their current or former owners, trusts, trustees, officers, directors, shareholders,
affiliates, agents, representatives, employees, attorneys, successors, predecessors,
insurers, and assigns with respect to any event, matter, claim, damage or injury of any
kind related to the Property, including without limitation the condition of the Property.
12.3 Waiver of Unknown Claims. With respect to the subject matter of this
Agreement, including, but not limited to the Property, it is agreed and understood that
the releases being provided by each of the Parties above apply to all injuries and
damages, whether now known or unknown, and whether now existing or which may
result in the future due to the actions or omissions of the Parties on or before the
Effective Date. With respect to the subject matter of this Agreement, the Parties
acknowledge that they have each been fully advised of and understand the provisions
of Section 1542 of the California Civil Code which reads:
"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 this release, which if
known by him or her must have materially affected his or her settlement with the
debtor. "
In further consideration of the promises and payments pursuant to this
Agreement, each Party agrees to, and does hereby, waive and relinquish all rights
afforded to him, her or it under California Civil Code Section 1542, or any similar law of
any State or territory of the United States or other jurisdiction with respect to the matters
of this Agreement. Notwithstanding the above, nothing in this Agreement shall be
deemed to waive or release any Party as to any of its obligations or rights under this
Agreement.
The foregoing provisions shall survive the Closing hereunder and the recordation
of the deed.
4��
SELLER'SNI IALS
CITY'S INITIALS
13. DAMAGE, DESTRUCTION AND CONDEMNATION.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 16
13.1 Risk of Physical Loss. Risk of physical loss to the Property shall be borne
by Seller prior to the Close of Escrow and by City thereafter. In the event the Property
shall be damaged by fire, flood, earthquake or other casualty, City shall complete the
acquisition of the Property and Seller shall assign to City the interest of Seller in all
insurance proceeds relating to such damage. Seller shall maintain property insurance
against all risks of loss (excluding flood and earthquake)."
13.2 Condemnation. In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain or similar type
proceedings to take any portion of the Property, City shall have the option either to (i)
elect not to acquire the Property, or (ii) complete the acquisition of the Property, in
which case City shall be entitled to all the proceeds of such taking.
14. THREAT OF CONDEMNATION. City's purchase of the Property is in
contemplation of the use of the Property for public purposes. This negotiated acquisition
arose during City's investigations of the acquisition of the Property through eminent
domain. City has the authority to acquire property by eminent domain for public
purposes. Seller has agreed to enter into this Agreement with City under the threat of
City's exercise of its power of eminent domain. In the event this negotiated sale did not
occur, subject to and pending its completion of the necessary statutory procedures set
forth in Government Code Section 7267 et seq., and Code of Civil Procedure Section
1230.010 et seq., City's staff was prepared to have taken the steps thereunder to seek
authorization from the City Council, and staff was prepared to recommend to the City
Council initiation of the steps, to acquire the Property for public purposes pursuant to
Government Code Section 7267 et seq., and Code of Civil Procedure Section 1230.010
et seq., including providing notice to Seller of its opportunity to be heard and to
agendize, consider, and take action on a resolution of necessity under Code of Civil
Procedure Section 1245.230 et seq. Nothing herein is intended to be, or serve as, any
tax advice from City to Seller, and Seller is not in any way construing or relying on any
communications or advice by City, or City's representations herein, in any way as any
type of tax advice or opinion. Upon request, City shall provide Seller with a letter,
separate and apart from this Agreement, restating the foregoing.
15. POSSESSION. Possession of the Property shall be delivered to City as of
Close of Escrow. In the event any personal property remains on the Property following
the Close of Escrow, it shall automatically become the property of City.
16. ENVIRONMENTAL CONDITION. To Seller's actual knowledge, but
without duty of investigation, Seller, as of the Effective Date, is not required by any
applicable laws and governmental regulations to take any action to remediate any
environmental condition affecting the Property.
17. ASSIGNMENT. City shall not have the right to assign this Agreement or
any interest or right hereunder or under the Escrow or to nominate another party to take
title to the Property without the prior written consent of Seller, which Seller may withhold
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 17
in Seller's sole discretion. In no event shall City be released of liability in the event of an
assignment or nomination.
18. AFFIXATION OF REVENUE STAMPS. Escrow Holder is hereby
specifically instructed to attach documentary transfer and/or revenue stamps to the
Grant Deed only after recordation of the Grant Deed.
19. COOPERATION. City and Seller agree to cooperate with one another, at
no cost or expense to the cooperating party, in satisfying the conditions to Close of
Escrow. City shall be responsible for proceeding with diligence and in good faith to
satisfy the conditions, if any, to City's performance set forth in Section 8.1 and Seller
shall be responsible for proceeding with diligence and in good faith to satisfy the
conditions, if any, to Seller's performance set forth in Section 8.2.
20. QUALIFICATION; AUTHORITY. Each Party represents and warrants that
it is duly formed, is authorized to do business in the state in which the Property is
located and that it has been duly authorized to enter into and perform this Agreement.
21. NO ATTORNEYS' FEES. In any action between the Parties hereto
seeking enforcement of any of the terms and provisions of this Agreement or the
Escrow, or in connection with the Property, the prevailing Party in such action shall not
be entitled to have and to recover from the other Party its reasonable attorneys' fees
and other expenses and costs in connection with such action or proceeding.
22. INTERPRETATION; GOVERNING LAW. This Agreement shall be
construed according to its fair meaning and as if prepared by both Parties hereto. This
Agreement shall be construed in accordance with the laws of the State of California in
effect at the time of the execution of this Agreement. Titles and captions are for
convenience only and shall not constitute a portion of this Agreement. As used in this
Agreement, masculine, feminine or neuter gender and the singular or plural number
shall each be deemed to include the others wherever and whenever the context so
dictates.
23. NO WAIVER. No delay or omission by either Party hereto in exercising
any right or power accruing upon the compliance or failure of performance by the other
Party hereto under the provisions of this Agreement shall impair any such right or power
or be construed to be a waiver thereof. A waiver by either Party hereto of a breach of
any of the covenants, conditions or agreements hereof 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 hereof.
24. MODIFICATIONS. Any alteration, change or modification of or to this
Agreement, or any time limits contained herein, in order to become effective, shall be
made by written instrument or endorsement thereon and in each such instance
executed on behalf of each Party hereto.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 18
25. SEVERABILITY. If any term, provision, condition or covenant of this
Agreement or the application thereof to any Party or circumstances shall, to any extent,
be held invalid or unenforceable, the remainder of this instrument, or the application of
such term, provision, condition or covenant to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
26. COVENANTS TO SURVIVE ESCROW. The covenants and agreements
contained herein shall survive the Close of Escrow and, subject to the limitations on
assignment contained in Section 17 above, shall be binding upon and inure to the
benefit of the Parties hereto and their representatives, heirs, successors and assigns.
27. NO WITHHOLDING BECAUSE NON -FOREIGN SELLER Seller
represents and warrants to City that Seller is not, and as of the Close of Escrow will not
be, a foreign person within the meaning of Internal Revenue Code Section 1445 and
that it will deliver to City on or before the Close of Escrow the Non -Foreign Affidavit as
described hereinabove, pursuant to Internal Revenue Code Section 1445(b)(2) and the
Regulations promulgated thereunder.
28. TIME IS OF THE ESSENCE. Time is hereby expressly made of the
essence of this Agreement.
29. EXECUTION IN COUNTERPART. This Agreement may be executed in
several counterparts, and all so executed shall constitute one (1) agreement binding on
all Parties hereto, notwithstanding that all Parties are not signatories to the original or
the same counterpart.
30. NOTICES. Any notice which either Party may desire to give to the other
Party or to the Escrow Holder must be in writing and shall be effective upon delivery if
sent via overnight mail with tracking; upon delivery, if delivered by confirmed facsimile
or email (with a backup sent by first class mail); when personally delivered, if sent
postage prepaid by registered or certified mail, return receipt requested; three (3)
business days after deposit in the United States mail, registered, certified, postage fully
prepaid and addressed to the respective Parties as set forth below or to such other
address and to such other persons as the Parties may hereafter designate by written
notice to the other Parties hereto:
To Seller: MNG Newport Beach, LLC
Attn: Daron Young
9171 Towne Centre Drive
Suite 335
San Diego, CA 92122
To City: City of Newport Beach
Attn: City Manager
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 19
100 Civic Center Drive
Newport Beach, CA 92660
With Copies to: City of Newport Beach
Attn: City Attorney
100 Civic Center Drive
Newport Beach, CA 92660
City of Newport Beach
Attn: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
31. NO BROKERS. City and Seller each represents to the other that no
brokers have been involved in this transaction. City and Seller agree to indemnify one
another against any claim, suits, damages and costs incurred or resulting from the
claims of any person for any fee or remuneration due in connection with this transaction
pursuant to a written agreement made with said claimant.
32. CONTINGENCY. It is understood and agreed between the Parties hereto
that the completion of this transaction, and the Escrow created hereby, is contingent
upon the specific acceptance and approval of the City. The execution of these
documents and the delivery of same to Escrow Holder constitute said acceptance and
approval.
33. CEQA. By its execution of this Agreement, the City is not committing itself
or agreeing to undertake any activity requiring the subsequent exercise of discretion by
the City or any department thereof, including, but not limited to, the approval of any
CEQA documents, the approval of any development project or land use regulation
governing the Property, or any other act or approval. The City reserves the right to
exercise in good faith its discretion as to all matters which it is, by law, entitled or
required to exercise its discretion, including, but not limited to, the consideration of
CEQA documents, the consideration of any and all plans, permits, licenses, or
regulatory approvals, or any other acts or activities requiring the subsequent
independent exercise of discretion by the City or any agency or department thereof.
The City may in good faith, in its sole and absolute discretion, certify or not certify a
CEQA document and approve, approve with modifications, or not approve, or consider
other alternatives, including those presented in the CEQA documents.
34. ENTIRE AGREEMENT, WAIVER AND MODIFICATION. This Agreement
is the entire Agreement between the Parties with respect to the subject matter of this
Agreement. It supersedes all prior agreements and understanding, whether oral or
written, between the Parties with respect to the matters contained in this Agreement.
Any waiver, modification, consent or acquiescence with respect to any provision of this
Agreement shall be set forth in writing and duly executed by or on behalf of the Party to
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 20
be bound thereby. No waiver by any Party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
35. CITY AUTHORIZATION. The City Manager of the City of Newport Beach
is hereby authorized, on behalf of the City, to sign all documents necessary and
appropriate to carry out and implement this Agreement and to administer the City's
obligations, responsibilities and duties to be performed under this Agreement.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement for
Purchase and Sale of Real Property and Escrow Instructions as of the date set forth
above.
r'�crRORr��
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Atwo' n C. H a N
City Attorney
SELLER: MNG Newport Beach, LLC, a California
limited liability company
CITY
By: MNG Management, LLC, a California
limited liability company
Its: Manger
Date
CITY OF NEWPORT BEACH, a
California municipal corporation and
charter city
Date
Dav
City Manager
Leil i L B OWO MMC. City Clerk
Dates
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 21
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.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO)
On NCk V-1- 6e et- "�',36 before me, Giovanna Delia, Notary Public,
personally appeared Daron Young, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument, the person, or the entity upon behalf
of which the person 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.
r
-----------
Ci1OVANNADEL1A
Notary Vublie n Caliiomi l
z San Diego County
Commission # 219014 Notary Public in and for
My Comm. Expires Apr 14, Mi said County and State
[END OF SIGNATURES]
ATTACHMENTS: Exhibit A — Property Legal Description
Exhibit B — Property Depiction
Exhibit C — Grant Deed
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page 22
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
The land referred to in is situated in the State of California, County of Orange, City of
Newport Beach, described as follows:
Parcel 1 as shown on Exhibit "B" attached to Newport Beach Lot Line Adjustment No.
94-12 recorded January 1, 1995 as Instrument No. 95-00037688 of Official Records of
Orange County, California.
Excepting from that portion included within Parcel H, as shown on Record of Survey
filed in Book 76, page 46 of Records of Surveys in the office of the County Recorded of
said Orange County, all mineral rights including oil, gas and other hydrocarbons without
the right of surface entry, as reserved by the City of Newport Beach by deed recorded
July 29, 1964 in Book 7153, page 988 of Official Records.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page A-1
EXHIBIT "B"
PROPERTY DEPICTION
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page B-1
047,110 25
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1
Newport
Beach
GIS 0
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U7 46 297 29
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-4
Disclaimer: Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
Imagery: 2009-2013 photos provided by Eagle
Imaging www.eagleaerial.com
9/1/20171
EXHIBIT "C"
GRANT DEED
RECORDING REQUESTED BY:
CITY OF NEWPORT BEACH
AND WHEN RECORDED MAIL TO:
Attn: City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
ORDER:
ESCROW NO.:
Exempt from recording fee per Government Code §§ 6103 and 27383
Parcel No: 047-110-36 (Space Above This Line For Recorder's Use Only)
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(s):
❑ City of Newport Beach Documentary Transfer Tax is $
❑ unincorporated area City Transfer Tax is $0.00
❑computed on full value of interest or
property conveyed, or
❑ full value less value of liens or
encumbrances remaining at the time of sale
FOR A VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, MNG Newport Beach, LLC, a California limited liability company,
hereby GRANTS in fee simple interest to the City of Newport Beach, a municipal
corporation and charter city, the following real property in the City of Newport
Beach, County of Orange, State of California described in EXHIBIT "A" and depicted
on EXHIBIT "B," which exhibits are attached hereto and incorporated herein by
reference and are made a part of this Grant Deed, with all improvements and
fixtures, together with equipment and personal property, if any, located on or under
the land (collectively the "Property").
THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO THE FOLLOWING:
A. The Property is sold to and accepted by Grantee "As -Is" and "Where -Is", with
all faults, if any, and without any warranty whatsoever, express or implied.
B. Pursuant to the terms of all documents of record, including the Grant Deed
dated June 9, 2016 and recorded on June 14, 2016 as Instrument No.
2016000267576 of the Official Records of the County of Orange.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-1
[END OF DOCUMENT. SIGNATURES ON NEXT PAGE.]
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of
October , 2017.
MNG NEWPORT BEACH, LLC, a California
limited liability company
By: MNG Management, LLC, a California
limited liability company
Its: Manager
Daron Young
Manager
ACKNOWLEDGMENT
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.
State of California
County of }ss.
On , 20 before me, ,
Notary Public, 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 signatures(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)
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-2
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
The land referred to in is situated in the State of California, County of Orange, City of
Newport Beach, described as follows:
Parcel 1 as shown on Exhibit "B" attached to Newport Beach Lot Line Adjustment No.
94-12 recorded January 1, 1995 as Instrument No. 95-00037688 of Official Records of
Orange County, California.
Excepting from that portion included within Parcel H, as shown on Record of Survey
filed in Book 76, page 46 of Records of Surveys in the office of the County Recorded of
said Orange County, all mineral rights including oil, gas and other hydrocarbons without
the right of surface entry, as reserved by the City of Newport Beach by deed recorded
July 29, 1964 in Book 7153, page 988 of Official Records.
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-3
EXHIBIT "B"
PROPERTY DEPICTION
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-4
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Newport
Beach Disclaimer: Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
GIS Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
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9/1/2017
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property set
forth in that certain Grant Deed by and between the City of Newport Beach, a California
municipal corporation and charter city, as Grantee, and MNG Newport Beach, LLC, a
California limited liability company, as Grantor, for property located at 2807 Newport
Boulevard [APN: 047-110-361, located in the City of Newport Beach is hereby accepted
on , 2017, by the undersigned officer on behalf of the City of Newport
Beach pursuant to authority conferred by Resolution No. 1992-82 of the City Council
adopted on July 27, 1992. The City of Newport Beach consents to the recordation of
said document in the Office of the Recorder of Orange County, State of California.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
in
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Dave Kiff
City Manager
RECOMMENDED FOR ACCEPTANCE:
COMMUNITY DEVELOPMENT
DEPARTMENT
Date:
By:
Seimone Jurjis
Community Development Director
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-5
ACKNOWLEDGEMENT
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.
State of California )
County of ORANGE )
On before me, , Notary Public,
personally appeared DAVE KIFF, who proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity(ies), and that by his signature on the instrument
the person, 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)
Agreement for Purchase and Sale of Real Property and Escrow Instructions Page C-6