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AHA-2019-003 AHA RESOLUTION NO. 2019- 0 0 3 A RESOLUTION OF THE ANAHEIM HOUSING AUTHORITY APPROVING THE DELAYED EXCHANGE OF CERTAIN REAL PROPERTY WITH THE CITY OF ANAHEIM; AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE AND ADMINISTER ANY NECESSARY DOCUMENTS TO IMPLEMENT THE EXCHANGE; AND MAKING CERTAIN OTHER FINDINGS IN CONNECTION THEREWITH WHEREAS, the Anaheim Housing Authority ("Authority") is a public body, corporate and politic and is duly organized and validly existing under the Housing Authorities Act,California Health & Safety Code Section 34240, et seq., and all successor statutes and implementing regulations thereto; WHEREAS, the Authority has entered into an agreement with B&AIVN 1, LLC and B&AIVN 2, LLC to acquire certain real property located in the City of Anaheim, California, commonly known as 1213 S. Claudina Street and 1227 S. Claudina Street(the "Property"). The Property is legally described in Exhibit"A"to the Delayed Exchange of Real Property Agreement (the"Exchange Agreement")entered into between the City of Anaheim("City")and the Authority, which agreement is attached hereto in substantially similar form for reference; WHEREAS, the Authority wishes to exchange the Property for property owned by the City, which will be identified later, of equal value and suitable for low and moderate income housing purposes, if and when identified,according to the terms of the Exchange Agreement; WHEREAS, the City desires to exchange property owned by the City, to be identified later, of equal value and suitable for low and moderate income housing purposes, if and when identified, for the Property,according to the terms of the Exchange Agreement; WHEREAS,by this Resolution,the Authority desires to approve the Exchange Agreement and the exchange of the Property as provided for under the Exchange Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE ANAHEIM HOUSING AUTHORITY AS FOLLOWS: Section 1. The Authority Board hereby finds and determines that the foregoing recitals are true and correct and are a substantive part of this Resolution. Section 2. The Authority Board approves the Exchange Agreement. The Authority Executive Director and the Authority Secretary are hereby authorized to execute and attest the Exchange Agreement, including any related attachments, on behalf of the Authority. In such regard, the Authority Executive Director, or his duly authorized representative, is authorized to sign the final version of the Exchange Agreement after completion of any such non-substantive, minor revisions. Copies of the final form of the Exchange Agreement, when duly executed and attested, shall be placed on file in the office of the City Clerk. Further, the Authority Executive Director, or his duly authorized representative, is authorized to implement the Exchange Agreement and take all further actions and execute all documents referenced therein and/or necessary and appropriate to carry out the transaction contemplated by the Exchange Agreement, including all exhibits thereto. The Authority Executive Director, or his duly authorized representative, is hereby authorized to the extent necessary during the implementation of the Exchange Agreement to make technical or minor changes and interpretations of the Exchange Agreement after execution, as necessary to properly implement and carry out the Exchange Agreement, including all exhibits thereto, provided any and all such changes shall not in any manner materially affect the rights and obligations of the Authority under the Exchange Agreement. The Authority authorizes and directs the Authority Executive Director, or his duly authorized representative, to execute the grant deed under which the Authority will convey the Property to the City and the City will acquire the Property, and a deed acceptance as to the grant deed under which the City will convey certain property to be identified at a later date to the Authority and the Authority will acquire that certain property, and such other instruments as may be necessary or convenient to effect the transfer of the Property to the City as described herein. Section 3. In addition to the authorization of Section 2 above,the Authority Executive Director is hereby authorized,on behalf of the Authority,to sign all other documents necessary or appropriate to carry out and implement the Exchange Agreement, including all exhibits thereto and including causing the issuance of warrants in implementation thereto, and to administer the Authority's obligations, responsibilities and duties to be performed under the Exchange Agreement, including all exhibits thereto. Section 4. The Authority Secretary shall certify to the adoption of this Resolution. TI-IE FOREGOING RESOLUTION is approved and adopted by the Anaheim Housing Authority this loth day of J„t y , 2019, by the following roll call vote: AYES: Chairman Sidhu and Authority Members Kring, Barnes, Brandman, Moreno, Faessel, and O'Neil NOES: None ABSENT: None ABSTAIN: None ANAHEIM HOUSING AUTHORITY By: LALI ! Chair ATTEST: t y Authority Secretary AGREEMENT AND ESCROW INSTRUCTIONS FOR DELAYED EXCHANGE OF REAL PROPERTY This AGREEMENT AND ESCROW INSTRUCTIONS FOR DELAYED EXCHANGE OF REAL PROPERTY("Agreement") is entered into as of July 30, 2019 by and between the City of Anaheim, a California municipal corporation and Charter City (the "City") and the Anaheim Housing Authority,a public body,corporate and politic(the"Authority"). RECITALS A. The Authority, on the one hand, B&AIVN 1, LLC, and B&AIVN 2, LLC, each a California limited liability company have entered into that certain Purchase and Sale Agreement with and Joint Escrow Instructions dated June 18,2019, on the other hand ("Purchase Agreement"), pursuant to which B&AIVN 1, LLC and B&AIVN 2, LLC have agreed to sell and the Authority has agreed to purchase certain parcels of real property,located in the City of Anaheim,State of California and being more particularly described in Exhibit"A" attached hereto and incorporated herein ("Claudina Property"). B. The Claudina Property consists of 1213 South Claudina and 1227 South Claudina. 1213 South Claudina Street is currently occupied by NX Utilities, LLC, a Delaware limited liability company pursuant to a lease dated December 18,2017(the"1213 Lease"). 1227 South Claudina Street is improved and currently occupied by Green Clean Water and Waste Services, Inc., a California corporation pursuant to a lease dated as of June 27,2014, and amended as of July 7,2017(the"1227 Lease"). C. The Authority wishes to exchange the Claudina Property for property owned by the City(to be identified later)of equal value and suitable for low and moderate income housing purposes (if and when identified), the "Low and Moderate Income Housing Site") located within the property designated"City Site" shown on the Map attached hereto as Exhibit"B"and incorporated herein by reference. D. All capitalized terms not defined herein shall have the same meaning as set forth in the Purchase Agreement. NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged,the parties agree as follows: 1. Identification of Low and Moderate Income Housing Site. The parties anticipate that the City Site will be developed. If and to the extent such development includes a low and moderate income housing element,the parties will designate the property so included in such element as the Low and Moderate Income Housing Site. If the parties determine that the value of the Low and Moderate Income Housing Site is more or less than the value of the Claudina Properties,then,in such event,cash will be paid by the party receiving the greater value in property in the exchange,to the other party in an amount equal to the agreed upon difference in value. 2. Exchange of Property. Subject to the prior satisfaction of the"Conditions Precedent" set forth in Section 3 hereof,the Authority shall convey to the City the Claudina Property, subject to the Leases (the "Claudina Conveyance") and, following identification of the Low and Moderate 4819-1336-7704v5/022620-0069 Income Housing Site,the City shall convey to the Authority the Low and Moderate Income Housing Site(the"Low and Moderate Income Housing Site Conveyance"). 2.1 Hazardous Materials. Neither the City nor the Authority, or any of their respective employees, servants, agents, or contractors shall bring, place, treat, or dispose of any Hazardous Material in,under or about the Claudina Property or the Low and Moderate Income Housing Site or any portion thereof. For purposes of this Agreement, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, without limitation,(i)any material or substance which is defined or listed as a"hazardous waste,""extremely hazardous waste,""restricted hazardous waste,""hazardous substance"or"hazardous material"under any federal, state or local law, statute, ordinance or any governmental rule, regulation or order governing or in any way relating to the release,use,generation,handling,leakage,dumping,discharge or disposal of any of the above, (ii)petroleum or any petroleum derivative, (iii)any flammable explosive or radioactive material, (iv)any polychlorinated biphenyl, and(v)asbestos or any asbestos containing material or derivative. Notwithstanding the foregoing, a party shall have the right to use Hazardous Materials in legal amounts which are customarily used in connection with the grading, construction, operation and maintenance of a water well, or any other use contemplated by this Agreement. 2.2 Liens. Each party shall keep the property of the other party free and clear of all mechanic's,materialmen's and other liens arising out of said party's activities on the other party's property,and neither party shall allow any such liens to be enforced against the other party's property. Each party shall cause all claims to be paid before an action is brought against the other party's property to enforce any lien arising out of said party's activities on the other party's property. If either party desires to contest the validity of any lien or claim, such party may,at its expense,post an appropriate bond for the benefit of the other party and the other party's property,in an amount sufficient to protect the other party from any loss resulting from such lien or claim. 2.3 Damage. Any damage to either party's property or improvements situated thereon caused by the activities of the other party or its employees,contractors,consultants,or agents, shall be repaired by such damaging party at its sole cost and expense and to the reasonable satisfaction of the damaged party,within ten(10)days following any such damage. 2.4 Defaults. If a party acts in contravention or violation of this Agreement, the other party may deliver written Notice of such failure of performance and provide the non-performing party a forty-five(45)day period to cure or,if the failure of performance is such that more than forty- five(45)days are required for its performance, such party shall not be in default hereunder so long as a cure is commenced within such forty-five (45) day period and the cure is diligently pursued to completion. 3. Closings. The Claudina Property Conveyance and the Low and Moderate Income Site Conveyance shall occur (each referred to herein "Closing", respectively, the "Claudina Property Conveyance" and/or the "Low and Moderate Income Housing Site Conveyance") within three (3) business days after each and every condition precedent set forth in Section 4 (each, a "Condition Precedent")has been satisfied,or waived by the benefited party; provided that the Low and Moderate Income Site Conveyance may be delayed by the Authority, in its sole and absolute discretion, for as long as necessary to determine the configuration of the Low and Moderate Income Housing Site as 2 4819-1336-7704v5/022620-0069 described in Section 1 hereof. The Closing shall occur at the office of the Escrow Agent(as hereinafter defined)within Orange County at a time and place reasonably agreed to by the parties. 4. Conditions to Closing. 4.1 The Authority's Conditions Precedent. The Conditions Precedent to the Low and Moderate Income Site Conveyance for the benefit of the Authority are as follows: (a) Identification of the Low and Moderate Income Housing Site pursuant to Section 1 hereof; (b) Delivery into Escrow of a duly executed and acknowledged Low and Moderate Income Housing Site Grant Deed in the form attached hereto as Exhibit"D"; (c) Conveyance to the City of good and marketable title to the Claudina Property free of any and all interests, encumbrances, liens, easements, rights of possession or other clouds of title,other than liens, encumbrances,clouds or conditions as may be approved in writing by the Authority; (d) The Authority's written approval of the Preliminary Report for the Low and Moderate Income Housing Site; (e) The City's execution of an affidavit of exemption from the Foreign Investment in Real Property Tax Act("FIRPTA"); (f) All of the City's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date;and (g) As to the Low and Moderate Income Housing Site Conveyance,there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever,pending or threatened,which after Closing would materially and adversely affect the value of the Low and Moderate Income Housing Site, the Authority's use and enjoyment of the Low and Moderate Income Housing Site,or the zoning classification of the Low and Moderate Income Housing Site. The Conditions Precedent contained in Subparagraphs 4.1(a) through (g) are intended solely for the benefit of the Authority. If any of the Conditions Precedent are not satisfied, the Authority's sole and only remedies shall be to(a)waive in writing the Condition Precedent(and all liability of the City for same unless such failure of a condition is due to a default of the City hereunder)and proceed with the Low and Moderate Income Site Conveyance,or(b)terminate this Agreement. 4.2 The City's Conditions Precedent. The Conditions Precedent to the Closing for the benefit of the City are as follows: (a) Delivery into Escrow of a duly executed and acknowledged Claudina Property Grant Deed in the form attached as Exhibit"C"; (b) The City's written approval of the Preliminary Report for the Claudina Property; 3 4819-1336-7704v51022620-0069 I (c) The Authority's execution of an affidavit of exemption from the Foreign Investment in Real Property Tax Act("FIRPTA"); (d) All of the Authority's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date; and (e) As of the Claudina Property Conveyance,there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which after Closing would materially and adversely affect the value of the Claudina Property, the City's use and enjoyment of the Claudina Property, or the zoning classification of the Claudina Property. The Conditions Precedent contained in Subparagraphs 4.2(a) through (e) are intended solely for the benefit of the City. If any of the Conditions Precedent are not satisfied,the City's sole and only remedies shall be to(a)waive in writing the Condition Precedent(and all liability of the Authority for same unless such failure of a condition is due to a default of the Authority hereunder)and proceed with the Claudina Property Conveyance,or(b)terminate this Agreement. 4.3 Deposits into Escrow. City and Authority shall deliver the documents described in Sections 4.1 and 4.2,respectively, into Escrow no later than 12:00 o'clock noon,one(1) business day before the anticipated Closing. 5. Representations and Warranties. 5.1 The City's Representations and Warranties. The City represents and warrants to the Authority as follows: (a) The City has full right, power and lawful authority to grant, sell and convey the Low and Moderate Income Housing Site as provided herein; and (b) To the best of the City's knowledge, as of the Low and Moderate Income Housing Site Conveyance,there will be no tenants or other persons who have a lawful interest in the Low and Moderate Income Housing Site;and (c) To the best of the City's knowledge,there are no pending or threatened actions, suits, material claims, legal proceedings, or any other proceedings affecting the Low and Moderate Income Housing Site or any portion thereof, at law, or in equity before any court or governmental agency,domestic or foreign;and (d) Until the Low and Moderate Income Housing Site Conveyance, the City shall not do anything which would impair the City's title to any of the Low and Moderate Income Housing Site;and (e) To the best of the City's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument which affects the Low and Moderate Income Housing Site; and 4 4819-1336-7704v5/022620-0069 (f) The City agrees to convey by grant deed to the Authority marketable fee simple title to the Low and Moderate Income Housing Site free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases, and taxes EXCEPT quasi-public utility, public alley, public street easements, and rights of way of record, and such other liens or encumbrances approved in writing by the Authority;and (g) The City is not a "foreign person" within The parameters of FIRPTA, or is exempt from the provisions of FIRPTA, or the City has complied and will comply with all the requirements under FIRPTA; (h) The City represents, with respect to the Low and Moderate Income Housing Site,that to the best of the City's knowledge,no material that is(1)defined in any statute or governmental order,rule,or regulation as"hazardous"or(2)subject to governmental regulation of the use, storage, transportation, or generation of such material (collectively,"Hazardous Materials"),has been used, generated, stored, released, discharged or disposed of on, under, in, or about the Low and Moderate Income Housing Site,or transported to or from the Low and Moderate Income Housing Site since the date of execution of the Purchase Agreement. The City represents with respect to the Low and Moderate Income Housing Site,that neither the City or any other person or entity under the control of, or with the knowledge of the City will cause or permit the use, generation, storage, release, discharge, or disposal of any Hazardous Materials on, under, in, or about the Low and Moderate Income Housing Site. The City shall be responsible for the removal of all Hazardous Materials,if any, before the City relinquishes actual possession of the Low and Moderate Income Housing Site;and (i) Until the Closing,the City shall,upon learning of any fact or condition which would cause any of the warranties and representations in this Section 5.1 not to be true as of Closing,immediately give written notice of such fact or condition to the Authority. 5.2 The Authority's Representations and Warranties. The Authority represents and warrants to the City as follows: (a) The Authority has full right, power and lawful authority to grant, sell and convey the Claudina Property as provided herein;and (b) The Authority,at the time of the execution of this Agreement,is seized of the Claudina Property in fee simple and is the lawful owner of and has good indefeasible title to the Claudina Property;and (c) To the best of the Authority's knowledge, there are no pending or threatened actions, suits, material claims, legal proceedings, or any other proceedings affecting the Claudina Property or any portion thereof,at law,or in equity before any court or governmental agency, domestic or foreign;and (d) To the best of the Authority's knowledge,there are no service contracts or other contracts affecting the Claudina Property;and (e) Until the Closing, the Authority shall not do anything which would impair the Authority's title to any portion of the Claudina Property; and 5 4819-1336-7704v5/022620-0069 (f) To the best of the Authority's knowledge,neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument which affects the Claudina Property; and (g) The Authority agrees to convey by grant deed to the City marketable fee simple title to the Claudina Property free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases (except the Leases), and taxes EXCEPT quasi-public utility, public alley, public street easements, and rights of way of record, and such other liens or encumbrances approved in writing by the City; and (h) The Authority is not a "foreign person" within the parameters of FIRPTA,or is exempt from the provisions of FIRPTA,or the Authority has complied and will comply with all the requirements under FIRPTA;and (i) Until the Closing, the Authority shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 5.2 not to be true as of Closing,immediately give written notice of such fact or condition to the City. 5.3 Survival of Representations and Warranties. The representations and warranties set forth in this Section 5 shall survive the Closing. 6. Indemnity and Release. City agrees to indemnify, defend and hold Authority harmless from and against any claim,action,suit,proceeding, loss,cost,damage, liability,deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i)the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on,under,in or about,or the transportation of any such Hazardous Materials to or from, the Claudina Property and/or Low and Moderate Income Housing Site prior to the Claudina Property Conveyance,or(ii)the violation,or alleged violation,of any statute,ordinance, order, rule, regulation, permit,judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Claudina Property and/or Low and Moderate Income Housing Site prior to the Low and Moderate Income Housing Site Conveyance. This indemnity shall include, without limitation, any damage, liability, fine,penalty,punitive damage,cost or expense arising from or out of any claim,action, suit or proceeding for personal injury(including sickness,disease or death),tangible or intangible property damage,compensation for lost wages,business income,profits or other economic loss,damage to the natural resource or the environment,nuisance,contamination,leak,spill,release or other adverse effect on the environment. This indemnity extends only to liability created prior to the Closing Date. Neither party shall be responsible for acts or omissions to act on or after the Closing Date. 7. Escrow. Within ten (10) days after the execution of this Agreement by both parties, the parties shall open escrow ("Escrow") with First American Title Company or such other escrow company agreed to by all parties (the "Escrow Agent"). The Parties shall each pay one-half of the Escrow fees,charges and costs set forth below(the"Escrow Fees")except as otherwise specified: (a) The Escrow Agent's fee. 6 4819-1336-7704v5/022620-0069 (b) Fees,if any, for recording and filing all documents required by this Agreement in connection with the transfer of the Claudina Property and the Low and Moderate Income Housing Site. (c) The costs of a CLTA or ALTA owner's extended insurance coverage,including any land survey costs, for each of the exchange properties. 8. Preliminary Reports. Promptly upon request by the Authority,the City,at the City's expense,shall furnish the Authority with a preliminary report("Preliminary Report")for the Low and Moderate Income Housing Site issued by First American Title Company (the "Title Company") and the Authority, at the Authority's expense, shall furnish the City with a Preliminary Report for the Claudina Property issued by the Title Company. Each Preliminary Report shall be accompanied by legible copies of all underlying documents for all exceptions("Exceptions")set forth in the Preliminary Report. Each party shall have ten (10) days from receipt of its respective Preliminary Report within which to give written notice to the other party of the reviewing party's approval or disapproval of any of such Exceptions(failure to give written notice of approval of the Preliminary Report shall be deemed disapproval). No deeds of trust, mortgages or other liens, except for the lien of property taxes and assessments not yet due, shall be approved Exceptions. Within thirty (30) days of receiving written notice of disapproval of any Exceptions in the Preliminary Report,the other party shall have the right, but not the obligation,to remove any disapproved Exceptions or provide assurances satisfactory to the reviewing party that such Exception(s) will be removed on or before the Closing. If the party that provided the Preliminary Report cannot or does not elect to remove any of the disapproved Exceptions within that period,the reviewing party shall have ten(10)days after the expiration of such thirty(30) day period to either give the providing party written notice that the reviewing party elects to proceed with the Reconfiguration subject to the disapproved Exceptions or to give the providing party written notice that the reviewing party elects to terminate this Agreement. Each party shall have the right to approve or disapprove,within ten(10)days of receiving a copy of an updated Preliminary Report,any new title exceptions reported by the Title Company after said party has approved the condition of title for the applicable property. Neither party shall voluntarily create any new exceptions to title following the date of this Agreement without the written consent of the other party. 9. Escrow Instructions. This Agreement constitutes the joint Escrow instructions of the City and the Authority, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts necessary to close this Escrow in the shortest possible time. (a) By 12:00 o'clock noon of the last business day before Closing,the City and the Authority, as applicable, will deposit the documents as required by Section 4.3 hereof with Escrow Agent. The City and the Authority agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction. (b) If in the opinion of the City and/or Authority it is necessary or convenient in order to accomplish the Closing of this transaction, the City and/or Authority may require the other Party sign supplemental Escrow instructions as may be required by the Escrow Agent;provided that if there is any inconsistency between this Agreement and the supplemental Escrow instructions,then the provisions of this Agreement shall control. The Parties agree to execute such other and further documents as may be necessary,helpful or appropriate to effectuate the provisions of this Agreement. 7 4819-1336-7704v5/022620-0069 (c) Escrow Agent is instructed to release City's Escrow closing statement and Authority's Escrow closing statement to the parties at their addresses listed in Section 12.4 10. Authority of Escrow Agent. Escrow Agent is authorized to,and shall: (a) Pay and charge the City for any amount necessary to place title to the Low and Moderate Income Housing Site in the condition necessary to satisfy Section 4.1(d)of this Agreement; and (b) Pay and charge the Authority for any amount necessary to place title to the Claudina Property in the condition necessary to satisfy Section 4.2(b)of this Agreement;and (c) Pay and charge each party for Escrow Fees in accordance with Section 7 of this Agreement;and (d) Deliver and record the Claudina Property Grant Deed in connection with the Claudina Property Conveyance and the Low and Moderate Income Housing Site Grant Deed in connection with the Low and Moderate Income Housing Site Conveyance when all Conditions Precedent of this Escrow have been fulfilled by the City and the Authority;and (e) Do such other actions as necessary, including obtaining policies of title insurance,to fulfill its obligations under this Agreement;and (f) Comply with all applicable provisions of FIRPTA;and (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 are provided for or required by law. 11. Termination. If either Escrow is not in condition to close in accordance with this Agreement,then either party which has fully performed under this Agreement may,in writing,demand the return of money or property and terminate this Agreement. If neither party has fully complied with the provisions of Escrow,no demand for return of documents shall be recognized and this Agreement shall not terminate until five(5)days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of this Agreement shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. If no demand is made, the Escrow Agent shall proceed with the Closing as soon as Escrow is in condition to close. 12. Failure of the Low and Moderate Income Housing Site Conveyance. If the Low and Moderate Income Site Conveyance does not occur, for any reason, other than an uncured default by the Housing Authority then,in such each,City to shall pay to Housing Authority an all cash amount equal to the Purchase Price identified in the Purchase Agreement. 13. General Provisions. 13.1 Brokers. Each party represents and warrants to the other that it has not used any finder, broker or real estate agent in connection with this transaction, and agrees that it shall 8 4819-1336-7704v5/022620-0069 indemnify and hold the other harmless from and against all brokerage commissions or finder's fees and claims therefor, payable in connection with the disposition of the Claudina Property and/or the Low and Moderate Income Housing Site and resulting from the acts or omissions of such indemnifying party. 13.2 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Authority and their respective heirs, personal representatives, successors,and assigns. 13.3 Attorneys'Fees. In any action between the parties to interpret,enforce,award, modify or rescind any of the terms or provisions of this Agreement, or any action otherwise commenced or taken in connection with this Agreement, the prevailing party in the action shall be entitled,in addition to damages,to injunctive relief,or any other relief to which it might be entitled to, reasonable costs and expenses including,without limitation, litigation costs and reasonable attorneys' fees. 13.4 Approvals and Notices. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire or be required to give to the other party under this Agreement must be in writing at the address of the party as set forth below,or at any other address as that party may later designate in writing. Any Notice given under this paragraph,whether personally or by mail,shall be deemed received only upon actual receipt by the intended party. To City: City Clerk City of Anaheim 200 S.Anaheim Boulevard,2nd Floor Anaheim,California 92805 FAX No. (714)765-4105 With copies to: John E. Woodhead IV Director of Community and Economic Development 201 S. Anaheim Boulevard, 10th Floor Anaheim,California 92805 FAX No. (714)765-4630 City Attorney 200 S.Anaheim Boulevard,3rd Floor Anaheim,California 92805 FAX No. (714)765-5123 Thomas P. Clark,Jr. Stradling Yocca Carlson&Rauth 660 Newport Center Drive, Suite 1600 Newport Beach,California 92660 To Authority: Anaheim Housing Authority 201 S.Anaheim Boulevard Anaheim,California 92805 Attention: Executive Director Email: jwoodhead@anaheim.net 9 4819-1336-7704v5/022620-0069 A 13.5 Jurisdiction and Venue. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the signing of this Agreement. 13.6 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. Reference to section numbers are to sections in this Agreement,unless expressly stated otherwise. 13.7 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. 13.8 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. 13.9 Modifications. Any alteration, change, amendment, 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. 13.10 Severability. If any term,provision,condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, and the application of the 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,and shall be valid and enforceable to the fullest extent permitted by law; provided the intent of the parties and the purpose of this Agreement are not frustrated as a result. 13.11 Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement,and in signing this Agreement,they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement;and,they have freely signed this Agreement without any reliance upon any agreement, promise,statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement,and without duress or coercion,whether economic or otherwise. 13.12 Time of Essence. Time is expressly made of the essence with respect to the performance by City and Authority of each and every obligation and condition of this Agreement including,without limitation,the Closing. 13.13 Cooperation. Each party agrees to cooperate with the other in the Closing of this transaction and,in that regard,to sign any and all documents which may be reasonably necessary, helpful,or appropriate to carry out the purposes and intent of this Agreement including,but not limited to,releases or additional agreements. 10 4819-1336-7704v5/022620-0069 13.14 Agreement in Total. (a) Entire Agreement. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, and the terms of this Agreement hereby replace and supersede any terms of the Purchase Agreement which are inconsistent with this Agreement. Except as modified hereby,the terms and provisions of the Purchase Agreement remain unmodified and in full force and effect. If there is a conflict between the provisions of the Purchase Agreement and the provisions of this Agreement, the provisions of this Agreement shall control. Authority is entering this Agreement based solely upon the representations set forth herein and upon Authority's own independent investigation of any and all facts Authority deems material. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party shall be of any effect unless it is in writing and executed by the party to be bound thereby. (b) Counterparts. This Agreement may be signed in multiple counterparts which,when signed by all panics, shall constitute a binding agreement. (c) Exhibits Incorporated by Reference. All exhibits and attachments attached to this Agreement are incorporated in this Agreement by this reference. This Agreement includes seventeen(18)pages(including signatures)and Exhibits"A"through"D." [Signatures appear on following page.] 11 111 4819-1336-7704v5/022620-0069 IN WITNESS WHEREOF, City and Authority have signed this Agreement as of the date first set forth above. "CITY" CITY OF ANAHEIM a California municipal corporation and charter city By: John E. Woodhead IV, Director of Community and Economic Development ATTEST: THERESA BASS,AUTHORITY SECRETARY Theresa Bass APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: STRADLING YOCCA CARLSON &RAUTH "AUTHORITY" ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E.Woodhead IV, Executive Director or Authorized Designee 12 4819-1336-7704v5/022620-0069 EXHIBIT"A" LEGAL DESCRIPTION All that certain real property situated in the City of Anaheim, County of Orange, State of California,described as follows: 1213 S. Claudina St., Anaheim, CA 92805 Lot 7, except the southerly 75 feet thereof, and the southerly 58.536 feet of Lot 8 of Tract No. 3351, in the City of Anaheim, County of Orange, State of California, as shown on a map recorded in Book 110,Pages 5,6 and 7 of Miscellaneous Maps,Records of Orange County,California. 1227 S. Claudina St., Anaheim,CA 92805 The Southerly 75 feet of Lot 7 and the northerly 80 feet of Lot 6 of Tract No. 3351, in the City of Anaheim,County of Orange, State of California,as per map recorded in Book 110 Pages 5, 6 and 7 of Miscellaneous Maps,in the office of the County Recorded of said county. Assessor's Parcel Numbers: 082-461-29;082-461-38 A-1 4819-1336-7704v5/022620-0069 r EXHIBIT "B" MAP 4'11* r I IN • • :a. '•,. , ....J • 4 , '''- = t , • . I k di 4: ?t' •Al• . k •••-•0 •., • • . 4 BALL RD .. - - 1.—4; ,' , 4, 7 ,..,.,,,,t.k. A.) -..".221„. 7.-• ' ., _.: . , ...._. 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B-1 4819-1336-7704v5/022620-0069 EXHIBIT"C" CLAUDINA PROPERTY GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City DOCUMENTARY TRANSFER TAX$NONE This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ("Grantor"), hereby GRANTS to the CITY OF ANAHEIM, a California municipal corporation and Charter City ("Grantee"), the real property in the County of Orange, State of California, described in the legal description attached hereto as Attachment No. 1 and incorporated herein. "GRANTOR": ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E.Woodhead IV, Executive Director or Authorized Designee ACCEPTED BY: "GRANTEE": CITY OF ANAHEIM a California municipal corporation and charter city By: John E.Woodhead IV Director of Community and Economic Development C-1 4819-1336-7704v5/022620-0069 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,before me, ,Notary Public. (Print Name of 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 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 of Notary Public OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title Or Type Of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) ❑ Guardian/Conservator Number Of Pages ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above 4819-1336-7704v5/022620-0069 EXHIBIT "D" THE LOW AND MODERATE INCOME HOUSING SITE GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Authority DOCUMENTARY TRANSFER TAX$NONE This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF ANAHEIM, a California municipal corporation and Charter City ("Grantor"), hereby GRANTS to the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ("Grantee"), the real property in the County of Orange, State of California, described in the legal description attached hereto as Attachment No. 1 and incorporated herein "GRANTOR": CITY OF ANAHEIM a municipal corporation and charter city By: John E.Woodhead IV, Director of Community and Economic Development "GRANTEE": ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E. Woodhead IV, Executive Director or Authorized Designee D-1 4819-1336-7704v5/022620-0069 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,before me, ,Notary Public, (Print Name of 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 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 of Notary Public OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title Or Type Of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) ❑ Guardian/Conservator Number Of Pages ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above 4819-1336-7704v5/022620-0069 AGREEMENT AND ESCROW INSTRUCTIONS FOR DELAYED EXCHANGE OF REAL PROPERTY This AGREEMENT AND ESCROW INSTRUCTIONS FOR DELAYED EXCHANGE OF REAL PROPERTY ("Agreement") is entered into as of July 30, 2019 by and between the City of Anaheim, a California municipal corporation and Charter City (the "City") and the Anaheim Housing Authority,a public body,corporate and politic(the"Authority"). RECITALS A. The Authority, on the one hand, B&AIVN 1, LLC, and B&AIVN 2, LLC, each a California limited liability company have entered into that certain Purchase and Sale Agreement with and Joint Escrow Instructions dated June 18,2019, on the other hand ("Purchase Agreement"), pursuant to which B&AIVN 1, LLC and B&AIVN 2, LLC have agreed to sell and the Authority has agreed to purchase certain parcels of real property,located in the City of Anaheim,State of California and being more particularly described in Exhibit"A" attached hereto and incorporated herein ("Claudina Property"). B. The Claudina Property consists of 1213 South Claudina and 1227 South Claudina. 1213 South Claudina Street is currently occupied by NX Utilities, LLC, a Delaware limited liability company pursuant to a lease dated December 18,2017(the"1213 Lease"). 1227 South Claudina Street is improved and currently occupied by Green Clean Water and Waste Services, Inc., a California corporation pursuant to a lease dated as of June 27, 2014, and amended as of July 7, 2017 (the"1227 Lease"). C. The Authority wishes to exchange the Claudina Property for property owned by the City(to be identified later)of equal value and suitable for low and moderate income housing purposes (if and when identified), the "Low and Moderate Income Housing Site") located within the property designated"City Site" shown on the Map attached hereto as Exhibit"B" and incorporated herein by reference. D. All capitalized terms not defined herein shall have the same meaning as set forth in the Purchase Agreement. NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged,the parties agree as follows: 1. Identification of Low and Moderate Income Housing Site. The parties anticipate that the City Site will be developed. If and to the extent such development includes a low and moderate income housing element,the parties will designate the property so included in such element as the Low and Moderate Income Housing Site. If the parties determine that the value of the Low and Moderate Income Housing Site is more or less than the value of the Claudina Properties,then,in such event,cash will be paid by the party receiving the greater value in property in the exchange,to the other party in an amount equal to the agreed upon difference in value. 2. Exchange of Property. Subject to the prior satisfaction of the"Conditions Precedent" set forth in Section 3 hereof, the Authority shall convey to the City the Claudina Property, subject to the Leases (the "Claudina Conveyance") and, following identification of the Low and Moderate 4819-1336-7704v5/022620-0069 Income Housing Site,the City shall convey to the Authority the Low and Moderate Income Housing Site(the"Low and Moderate Income Housing Site Conveyance"). 2.1 Hazardous Materials. Neither the City nor the Authority, or any of their respective employees, servants, agents, or contractors shall bring, place, treat, or dispose of any Hazardous Material in,under or about the Claudina Property or the Low and Moderate Income Housing Site or any portion thereof. For purposes of this Agreement, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government, including, without limitation, (i)any material or substance which is defined or listed as a"hazardous waste,""extremely hazardous waste,""restricted hazardous waste,""hazardous substance"or"hazardous material"under any federal, state or local law, statute, ordinance or any governmental rule, regulation or order governing or in any way relating to the release,use,generation,handling,leakage,dumping,discharge or disposal of any of the above, (ii)petroleum or any petroleum derivative, (iii)any flammable explosive or radioactive material, (iv)any polychlorinated biphenyl, and (v)asbestos or any asbestos containing material or derivative. Notwithstanding the foregoing, a party shall have the right to use Hazardous Materials in legal amounts which are customarily used in connection with the grading, construction, operation and maintenance of a water well, or any other use contemplated by this Agreement. 2.2 Liens. Each party shall keep the property of the other party free and clear of all mechanic's, materialmen's and other liens arising out of said party's activities on the other party's property,and neither party shall allow any such liens to be enforced against the other party's property. Each party shall cause all claims to be paid before an action is brought against the other party's property to enforce any lien arising out of said party's activities on the other party's property. If either party desires to contest the validity of any lien or claim, such party may,at its expense,post an appropriate bond for the benefit of the other party and the other party's property,in an amount sufficient to protect the other party from any loss resulting from such lien or claim. 2.3 Damage. Any damage to either party's property or improvements situated thereon caused by the activities of the other party or its employees,contractors,consultants,or agents, shall be repaired by such damaging party at its sole cost and expense and to the reasonable satisfaction of the damaged party, within ten(10)days following any such damage. 2.4 Defaults. If a party acts in contravention or violation of this Agreement, the other party may deliver written Notice of such failure of performance and provide the non-performing party a forty-five(45)day period to cure or,if the failure of performance is such that more than forty- five(45) days are required for its performance, such party shall not be in default hereunder so long as a cure is commenced within such forty-five (45) day period and the cure is diligently pursued to completion. 3. Closings. The Claudina Property Conveyance and the Low and Moderate Income Site Conveyance shall occur (each referred to herein "Closing", respectively, the "Claudina Property Conveyance" and/or the "Low and Moderate Income Housing Site Conveyance") within three (3) business days after each and every condition precedent set forth in Section 4 (each, a "Condition Precedent")has been satisfied,or waived by the benefited party;provided that the Low and Moderate Income Site Conveyance may be delayed by the Authority, in its sole and absolute discretion, for as long as necessary to determine the configuration of the Low and Moderate Income Housing Site as 2 4819-1336-7704v5/022620-0069 described in Section 1 hereof. The Closing shall occur at the office of the Escrow Agent(as hereinafter defined)within Orange County at a time and place reasonably agreed to by the parties. 4. Conditions to Closing. 4.1 The Authority's Conditions Precedent. The Conditions Precedent to the Low and Moderate Income Site Conveyance for the benefit of the Authority are as follows: (a) Identification of the Low and Moderate Income Housing Site pursuant to Section 1 hereof; (b) Delivery into Escrow of a duly executed and acknowledged Low and Moderate Income Housing Site Grant Deed in the form attached hereto as Exhibit"D"; (c) Conveyance to the City of good and marketable title to the Claudina Property free of any and all interests, encumbrances, liens, easements, rights of possession or other clouds of title, other than liens, encumbrances, clouds or conditions as may be approved in writing by the Authority; (d) The Authority's written approval of the Preliminary Report for the Low and Moderate Income Housing Site; (e) The City's execution of an affidavit of exemption from the Foreign Investment in Real Property Tax Act("FIRPTA"); (f) All of the City's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date;and (g) As to the Low and Moderate Income Housing Site Conveyance, there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever,pending or threatened,which after Closing would materially and adversely affect the value of the Low and Moderate Income Housing Site, the Authority's use and enjoyment of the Low and Moderate Income Housing Site,or the zoning classification of the Low and Moderate Income Housing Site. The Conditions Precedent contained in Subparagraphs 4.1(a) through (g) are intended solely for the benefit of the Authority. If any of the Conditions Precedent are not satisfied, the Authority's sole and only remedies shall be to(a)waive in writing the Condition Precedent(and all liability of the City for same unless such failure of a condition is due to a default of the City hereunder)and proceed with the Low and Moderate Income Site Conveyance,or(b)terminate this Agreement. 4.2 The City's Conditions Precedent. The Conditions Precedent to the Closing for the benefit of the City are as follows: (a) Delivery into Escrow of a duly executed and acknowledged Claudina Property Grant Deed in the form attached as Exhibit"C"; (b) The City's written approval of the Preliminary Report for the Claudina Property; 3 4819-1336-7704v5/022620-0069 (c) The Authority's execution of an affidavit of exemption from the Foreign Investment in Real Property Tax Act("FIRPTA"); (d) All of the Authority's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Closing Date; and (e) As of the Claudina Property Conveyance,there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened, which after Closing would materially and adversely affect the value of the Claudina Property, the City's use and enjoyment of the Claudina Property, or the zoning classification of the Claudina Property. The Conditions Precedent contained in Subparagraphs 4.2(a) through (e) are intended solely for the benefit of the City. If any of the Conditions Precedent are not satisfied,the City's sole and only remedies shall be to(a)waive in writing the Condition Precedent(and all liability of the Authority for same unless such failure of a condition is due to a default of the Authority hereunder)and proceed with the Claudina Property Conveyance,or(b)terminate this Agreement. 4.3 Deposits into Escrow. City and Authority shall deliver the documents described in Sections 4.1 and 4.2,respectively, into Escrow no later than 12:00 o'clock noon,one(1) business day before the anticipated Closing. 5. Representations and Warranties. 5.1 The City's Representations and Warranties. The City represents and warrants to the Authority as follows: (a) The City has full right, power and lawful authority to grant, sell and convey the Low and Moderate Income Housing Site as provided herein;and (b) To the best of the City's knowledge, as of the Low and Moderate Income Housing Site Conveyance,there will be no tenants or other persons who have a lawful interest in the Low and Moderate Income Housing Site;and (c) To the best of the City's knowledge,there are no pending or threatened actions, suits, material claims, legal proceedings, or any other proceedings affecting the Low and Moderate Income Housing Site or any portion thereof, at law, or in equity before any court or governmental agency,domestic or foreign; and (d) Until the Low and Moderate Income Housing Site Conveyance, the City shall not do anything which would impair the City's title to any of the Low and Moderate Income Housing Site;and (e) To the best of the City's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument which affects the Low and Moderate Income Housing Site; and 4 4819-1336-7704v5/022620-0069 (f) The City agrees to convey by grant deed to the Authority marketable fee simple title to the Low and Moderate Income Housing Site free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases, and taxes EXCEPT quasi-public utility, public alley, public street easements, and rights of way of record, and such other liens or encumbrances approved in writing by the Authority; and (g) The City is not a"foreign person" within the parameters of FIRPTA, or is exempt from the provisions of FIRPTA, or the City has complied and will comply with all the requirements under FIRPTA; (h) The City represents, with respect to the Low and Moderate Income Housing Site, that to the best of the City's knowledge,no material that is(1)defined in any statute or governmental order,rule,or regulation as"hazardous"or(2)subject to governmental regulation of the use, storage, transportation, or generation of such material (collectively, "Hazardous Materials"), has been used, generated, stored, released, discharged or disposed of on, under, in, or about the Low and Moderate Income Housing Site,or transported to or from the Low and Moderate Income Housing Site since the date of execution of the Purchase Agreement. The City represents with respect to the Low and Moderate Income Housing Site,that neither the City or any other person or entity under the control of, or with the knowledge of the City will cause or permit the use, generation, storage, release, discharge, or disposal of any Hazardous Materials on, under, in, or about the Low and Moderate Income Housing Site. The City shall be responsible for the removal of all Hazardous Materials,if any, before the City relinquishes actual possession of the Low and Moderate Income Housing Site;and (i) Until the Closing,the City shall,upon learning of any fact or condition which would cause any of the warranties and representations in this Section 5.1 not to be true as of Closing,immediately give written notice of such fact or condition to the Authority. 5.2 The Authority's Representations and Warranties. The Authority represents and warrants to the City as follows: (a) The Authority has full right, power and lawful authority to grant, sell and convey the Claudina Property as provided herein; and (b) The Authority,at the time of the execution of this Agreement,is seized of the Claudina Property in fee simple and is the lawful owner of and has good indefeasible title to the Claudina Property;and (c) To the best of the Authority's knowledge, there are no pending or threatened actions, suits, material claims, legal proceedings, or any other proceedings affecting the Claudina Property or any portion thereof,at law,or in equity before any court or governmental agency, domestic or foreign;and (d) To the best of the Authority's knowledge,there are no service contracts or other contracts affecting the Claudina Property;and (e) Until the Closing, the Authority shall not do anything which would impair the Authority's title to any portion of the Claudina Property; and 5 4819-1336-7704v5/022620-0069 (f) To the best of the Authority's knowledge,neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument which affects the Claudina Property;and (g) The Authority agrees to convey by grant deed to the City marketable fee simple title to the Claudina Property free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases (except the Leases), and taxes EXCEPT quasi-public utility, public alley, public street easements, and rights of way of record, and such other liens or encumbrances approved in writing by the City;and (h) The Authority is not a "foreign person" within the parameters of FIRPTA,or is exempt from the provisions of FIRPTA,or the Authority has complied and will comply with all the requirements under FIRPTA;and (i) Until the Closing, the Authority shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 5.2 not to be true as of Closing, immediately give written notice of such fact or condition to the City. 5.3 Survival of Representations and Warranties. The representations and warranties set forth in this Section 5 shall survive the Closing. 6. Indemnity and Release. City agrees to indemnify, defend and hold Authority harmless from and against any claim,action, suit,proceeding, loss,cost,damage,liability,deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i)the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on,under,in or about,or the transportation of any such Hazardous Materials to or from, the Claudina Property and/or Low and Moderate Income Housing Site prior to the Claudina Property Conveyance,or(ii)the violation,or alleged violation,of any statute,ordinance, order, rule, regulation, permit,judgment or license relating to the use,generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Claudina Property and/or Low and Moderate Income Housing Site prior to the Low and Moderate Income Housing Site Conveyance. This indemnity shall include, without limitation, any damage, liability, fine,penalty, punitive damage,cost or expense arising from or out of any claim, action, suit or proceeding for personal injury(including sickness,disease or death),tangible or intangible property damage,compensation for lost wages,business income,profits or other economic loss,damage to the natural resource or the environment,nuisance,contamination,leak,spill,release or other adverse effect on the environment. This indemnity extends only to liability created prior to the Closing Date. Neither party shall be responsible for acts or omissions to act on or after the Closing Date. 7. Escrow. Within ten (10) days after the execution of this Agreement by both parties, the parties shall open escrow ("Escrow") with First American Title Company or such other escrow company agreed to by all parties (the "Escrow Agent"). The Parties shall each pay one-half of the Escrow fees,charges and costs set forth below(the"Escrow Fees")except as otherwise specified: (a) The Escrow Agent's fee. 6 4819-1336-7704v5/022620-0069 (b) Fees,if any, for recording and filing all documents required by this Agreement in connection with the transfer of the Claudina Property and the Low and Moderate Income Housing Site. (c) The costs of a CLTA or ALTA owner's extended insurance coverage,including any land survey costs,for each of the exchange properties. 8. Preliminary Reports. Promptly upon request by the Authority,the City,at the City's expense,shall furnish the Authority with a preliminary report("Preliminary Report")for the Low and Moderate Income Housing Site issued by First American Title Company (the "Title Company") and the Authority, at the Authority's expense, shall furnish the City with a Preliminary Report for the Claudina Property issued by the Title Company. Each Preliminary Report shall be accompanied by legible copies of all underlying documents for all exceptions("Exceptions")set forth in the Preliminary Report. Each party shall have ten (10) days from receipt of its respective Preliminary Report within which to give written notice to the other party of the reviewing party's approval or disapproval of any of such Exceptions(failure to give written notice of approval of the Preliminary Report shall be deemed disapproval). No deeds of trust, mortgages or other liens, except for the lien of property taxes and assessments not yet due, shall be approved Exceptions. Within thirty (30) days of receiving written notice of disapproval of any Exceptions in the Preliminary Report,the other party shall have the right, but not the obligation,to remove any disapproved Exceptions or provide assurances satisfactory to the reviewing party that such Exception(s) will be removed on or before the Closing. If the party that provided the Preliminary Report cannot or does not elect to remove any of the disapproved Exceptions within that period,the reviewing party shall have ten(10)days after the expiration of such thirty(30) day period to either give the providing party written notice that the reviewing party elects to proceed with the Reconfiguration subject to the disapproved Exceptions or to give the providing party written notice that the reviewing party elects to terminate this Agreement. Each party shall have the right to approve or disapprove,within ten(10)days of receiving a copy of an updated Preliminary Report,any new title exceptions reported by the Title Company after said party has approved the condition of title for the applicable property. Neither party shall voluntarily create any new exceptions to title following the date of this Agreement without the written consent of the other party. 9. Escrow Instructions. This Agreement constitutes the joint Escrow instructions of the City and the Authority, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts necessary to close this Escrow in the shortest possible time. (a) By 12:00 o'clock noon of the last business day before Closing,the City and the Authority, as applicable, will deposit the documents as required by Section 4.3 hereof with Escrow Agent. The City and the Authority agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction. (b) If in the opinion of the City and/or Authority it is necessary or convenient in order to accomplish the Closing of this transaction, the City and/or Authority may require the other Party sign supplemental Escrow instructions as may be required by the Escrow Agent;provided that if there is any inconsistency between this Agreement and the supplemental Escrow instructions,then the provisions of this Agreement shall control. The Parties agree to execute such other and further documents as may be necessary,helpful or appropriate to effectuate the provisions of this Agreement. 7 4819-1336-7704v5/022620-0069 (c) Escrow Agent is instructed to release City's Escrow closing statement and Authority's Escrow closing statement to the parties at their addresses listed in Section 12.4 10. Authority of Escrow Agent. Escrow Agent is authorized to,and shall: (a) Pay and charge the City for any amount necessary to place title to the Low and Moderate Income Housing Site in the condition necessary to satisfy Section 4.1(d)of this Agreement; and (b) Pay and charge the Authority for any amount necessary to place title to the Claudina Property in the condition necessary to satisfy Section 4.2(b)of this Agreement;and (c) Pay and charge each party for Escrow Fees in accordance with Section 7 of this Agreement;and (d) Deliver and record the Claudina Property Grant Deed in connection with the Claudina Property Conveyance and the Low and Moderate Income Housing Site Grant Deed in connection with the Low and Moderate Income Housing Site Conveyance when all Conditions Precedent of this Escrow have been fulfilled by the City and the Authority;and (e) Do such other actions as necessary, including obtaining policies of title insurance, to fulfill its obligations under this Agreement;and (f) Comply with all applicable provisions of FIRPTA; and (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 are provided for or required by law. 11. Termination. If either Escrow is not in condition to close in accordance with this Agreement,then either party which has fully performed under this Agreement may,in writing,demand the return of money or property and terminate this Agreement. If neither party has fully complied with the provisions of Escrow,no demand for return of documents shall be recognized and this Agreement shall not terminate until five(5)days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said five (5) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of this Agreement shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. If no demand is made, the Escrow Agent shall proceed with the Closing as soon as Escrow is in condition to close. 12. Failure of the Low and Moderate Income Housing Site Conveyance. If the Low and Moderate Income Site Conveyance does not occur, for any reason, other than an uncured default by the Housing Authority then,in such each,City to shall pay to Housing Authority an all cash amount equal to the Purchase Price identified in the Purchase Agreement. 13. General Provisions. 13.1 Brokers. Each party represents and warrants to the other that it has not used any finder, broker or real estate agent in connection with this transaction, and agrees that it shall 8 4819-1336-7704v5/022620-0069 indemnify and hold the other harmless from and against all brokerage commissions or finder's fees and claims therefor, payable in connection with the disposition of the Claudina Property and/or the Low and Moderate Income Housing Site and resulting from the acts or omissions of such indemnifying party. 13.2 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Authority and their respective heirs, personal representatives, successors,and assigns. 13.3 Attorneys'Fees. In any action between the parties to interpret,enforce,award, modify or rescind any of the terms or provisions of this Agreement, or any action otherwise commenced or taken in connection with this Agreement, the prevailing party in the action shall be entitled,in addition to damages,to injunctive relief,or any other relief to which it might be entitled to, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 13.4 Approvals and Notices. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire or be required to give to the other party under this Agreement must be in writing at the address of the party as set forth below,or at any other address as that party may later designate in writing. Any Notice given under this paragraph,whether personally or by mail,shall be deemed received only upon actual receipt by the intended party. To City: City Clerk City of Anaheim 200 S.Anaheim Boulevard,2nd Floor Anaheim,California 92805 FAX No. (714)765-4105 With copies to: John E. Woodhead IV Director of Community and Economic Development 201 S. Anaheim Boulevard, 10th Floor Anaheim,California 92805 FAX No. (714)765-4630 City Attorney 200 S.Anaheim Boulevard, 3rd Floor Anaheim,California 92805 FAX No. (714)765-5123 Thomas P. Clark,Jr. Stradling Yocca Carlson&Rauth 660 Newport Center Drive, Suite 1600 Newport Beach,California 92660 To Authority: Anaheim Housing Authority 201 S.Anaheim Boulevard Anaheim,California 92805 Attention: Executive Director Email: jwoodhead@anaheim.net 9 4819-1336-7704v5/022620-0069 13.5 Jurisdiction and Venue. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the signing of this Agreement. 13.6 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. Reference to section numbers are to sections in this Agreement,unless expressly stated otherwise. 13.7 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. 13.8 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. 13.9 Modifications. Any alteration, change, amendment, 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. 13.10 Severability. If any term,provision,condition or covenant of this Agreement or its application to any party or circumstances shall be held,to any extent, invalid or unenforceable, the remainder of this Agreement, and the application of the 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, and shall be valid and enforceable to the fullest extent permitted by law;provided the intent of the parties and the purpose of this Agreement are not frustrated as a result. 13.11 Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement,and in signing this Agreement,they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement;and,they have freely signed this Agreement without any reliance upon any agreement,promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement,and without duress or coercion,whether economic or otherwise. 13.12 Time of Essence. Time is expressly made of the essence with respect to the performance by City and Authority of each and every obligation and condition of this Agreement including,without limitation,the Closing. 13.13 Cooperation. Each party agrees to cooperate with the other in the Closing of this transaction and,in that regard,to sign any and all documents which may be reasonably necessary, helpful,or appropriate to carry out the purposes and intent of this Agreement including,but not limited to,releases or additional agreements. 10 4819-1336-7704v5/022620-0069 13.14 Agreement in Total. (a) Entire Agreement. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, and the terms of this Agreement hereby replace and supersede any terms of the Purchase Agreement which are inconsistent with this Agreement. Except as modified hereby,the terms and provisions of the Purchase Agreement remain unmodified and in full force and effect. If there is a conflict between the provisions of the Purchase Agreement and the provisions of this Agreement, the provisions of this Agreement shall control. Authority is entering this Agreement based solely upon the representations set forth herein and upon Authority's own independent investigation of any and all facts Authority deems material. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party shall be of any effect unless it is in writing and executed by the party to be bound thereby. (b) Counterparts. This Agreement may be signed in multiple counterparts which,when signed by all parties,shall constitute a binding agreement. (c) Exhibits Incorporated by Reference. All exhibits and attachments attached to this Agreement are incorporated in this Agreement by this reference. This Agreement includes seventeen(18)pages(including signatures)and Exhibits"A"through"D." [Signatures appear on following page. 11 4819-1336-7704v5/022620-0069 IN WITNESS WHEREOF, City and Authority have signed this Agreement as of the date first set forth above. "CITY" CITY OF ANAHEIM a California municipal corporation and charter city By: John E.Woodhead IV, Director of Community and Economic Development ATTEST: THERESA BASS,AUTHORITY SECRETARY Theresa Bass APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: STRADLING YOCCA CARLSON&RAUTH "AUTHORITY" ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E. Woodhead IV, Executive Director or Authorized Designee 12 4819-1336-7704v5/022620-0069 EXHIBIT"A" LEGAL DESCRIPTION All that certain real property situated in the City of Anaheim, County of Orange, State of California,described as follows: 1213 S. Claudina St., Anaheim, CA 92805 Lot 7, except the southerly 75 feet thereof, and the southerly 58.536 feet of Lot 8 of Tract No. 3351, in the City of Anaheim, County of Orange, State of California, as shown on a map recorded in Book 110,Pages 5,6 and 7 of Miscellaneous Maps,Records of Orange County,California. 1227 S.Claudina St., Anaheim,CA 92805 The Southerly 75 feet of Lot 7 and the northerly 80 feet of Lot 6 of Tract No. 3351, in the City of Anaheim,County of Orange,State of California,as per map recorded in Book 110 Pages 5,6 and 7 of Miscellaneous Maps, in the office of the County Recorded of said county. Assessor's Parcel Numbers: 082-461-29; 082-461-38 A-1 4819-1336-7704v51022620-0069 I EXHIBIT"B" MAP BALL RD -rte m, -!' '1 '144•,. i $i ` . City Site . - - ¢ ,1 Toil . diliPri t,...' 0 1 ' . • .00 " !."' t 1< IT it 1 X a, fi: �. 14 t B-1 4819-1336-7704v5/022620-0069 EXHIBIT"C" CLAUDINA PROPERTY GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City DOCUMENTARY TRANSFER TAX$NONE This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ("Grantor"), hereby GRANTS to the CITY OF ANAHEIM, a California municipal corporation and Charter City ("Grantee"), the real property in the County of Orange, State of California, described in the legal description attached hereto as Attachment No. 1 and incorporated herein. "GRANTOR": ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E.Woodhead IV, Executive Director or Authorized Designee ACCEPTED BY: "GRANTEE": CITY OF ANAHEIM a California municipal corporation and charter city By: John E. Woodhead IV Director of Community and Economic Development C-1 4819-1336-7704v5/022620-0069 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,before me, ,Notary Public, (Print Name of 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 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 of Notary Public OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title Or Type Of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) ❑ Guardian/Conservator Number Of Pages ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above 4819-1336-7704v5/022620-0069 EXHIBIT"D" THE LOW AND MODERATE INCOME HOUSING SITE GRANT DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Authority DOCUMENTARY TRANSFER TAX$NONE This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF ANAHEIM, a California municipal corporation and Charter City ("Grantor"), hereby GRANTS to the ANAHEIM HOUSING AUTHORITY, a public body, corporate and politic ("Grantee"), the real property in the County of Orange, State of California, described in the legal description attached hereto as Attachment No. 1 and incorporated herein "GRANTOR": CITY OF ANAHEIM a municipal corporation and charter city By: John E.Woodhead IV, Director of Community and Economic Development "GRANTEE": ANAHEIM HOUSING AUTHORITY a public body,corporate and politic By: John E.Woodhead IV, Executive Director or Authorized Designee D-1 4819-1336-7704v5/022620-0069 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,before me, ,Notary Public, (Print Name of 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 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 of Notary Public OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title Or Type Of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) ❑ Guardian/Conservator Number Of Pages ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above 4819-1336-7704v5/022620-0069 SECRETARY'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM I, THERESA BASS, Secretary of the Anaheim Housing Authority, do hereby certify that the foregoing is the original Resolution No. AHA 2019-003 adopted at a regular meeting provided by law, of the Anaheim Housing Authority held on the 30th day of July, 2019, by the following vote of the members thereof: AYES: Chairman Sidhu and Authority Members Kring, Barnes, Brandman, Moreno, Faessel, and O'Neil NOES: None ABSTAIN: None ABSENT: None IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of July, 2019. SECRETARY F THE ANAHEIM HOUSING AUTHORITY (SEAL)