RES-2024-053RESOLUTION NO.2024- 0 5 3
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM
APPROVING A REAL ESTATE SALE AGREEMENT WITH HHC HA
TRS, INC.; AUTHORIZING THE EXECUTIVE DIRECTOR OF
CONVENTION, SPORTS AND ENTERTAINMENT TO EXECUTE AND
FINALIZE SUCH REAL ESTATE SALE AGREEMENT; AUTHORIZING
THE EXECUTIVE DIRECTOR OF CONVENTION, SPORTS AND
ENTERTAINMENT TO IMPLEMENT SUCH REAL ESTATE SALE
AGREEMENT; DETERMINING THAT THE PURCHASE AND SALE OF
THE PROPERTY IS EXEMPT FROM CEQA PURSUANT TO CEQA
GUIDELINES SECTION 15061(b)(3); AND MAKING CERTAIN OTHER
FINDINGS IN CONNECTION THEREWITH
WHEREAS, the City of Anaheim (the "City") is a California municipal corporation and
charter city; and
WHEREAS, the City Council ("City Council") for the City is authorized and empowered
under its Charter to enter into agreements for the disposition of real property, and to make and
execute contracts and other instruments necessary or convenient to exercise its powers; and
WHEREAS, the City holds title to certain real property consisting of an interest in the air-
space parcel (Parcel 3 in Parcel Map No. 88-251) and improvements (the "Property") comprising
of the existing five -story enclosed parking garage (the "Parking Facility") located at 777
Convention Center Way in the City of Anaheim; and
WHEREAS, HHC HA Investments II, Inc. owns the certain adjacent airspace parcel of
real estate, described as Parcel 2 in Parcel Map No. 88-251 ("Parcel 2"), and together, Parcel 2 and
Parcel 3 are improved with the Parking Facility.
WHEREAS, Parcel 2 and Parcel 3 are subject to a certain Declaration Establishing
Easements, Rights, Covenants, Conditions, and Restrictions Regarding Access to and Parking at
the Anaheim Convention Center and Hotel Enclosed Parking Facility, dated June 22, 1989,
("Parking Facility Declaration") which, among other things, sets forth the respective interest of the
Parties based the percentage of the airspace parcels that the Parties each own separately that
comprise the whole Parking Facility. The City has a fifty-one and seven hundredths percent
(51.07%) interest and HHC HA Investments II, Inc. has a forty-eight and ninety-three hundredths
percent (48.93%) interest. The Buyer's affiliate also is the owner of the Hilton Anaheim Hotel
located immediately adjacent to and connected with the Parking Facility.
WHEREAS, In November 2023, HHC HA Investments II, Inc. contacted the City to
express its interest in purchasing the Property.
WHEREAS, the City is considering entering into a Real Estate Sale Agreement to sell the
Property to HHC HA TRS, Inc. ("HHC HA TRS"), an entity controlled by the same owner of
HHC HA Investments II, Inc.
WHEREAS, on January 10, 2024, the City entered into a Letter of Intent with HHC HA
Investments II, Inc. and has negotiated the terms of a Real Estate Sale Agreement substantially in
the form submitted herewith (the "Agreement") with HHC HA TRS, whose affiliated entity
currently owns the remainder of the interest in the air -space parcel and improvements comprising
the parking facility not owned by the City, as well as the owner of the Hilton Anaheim Hotel
located immediately adjacent to the Property, pursuant to which the City will convey the Property
to HHC HA TRS for a purchase price of $24,542,314.00 (the "Purchase Price") and HHC HA TRS
will continue operations of the Property as a parking facility; and
WHEREAS, the approval of the Agreement will not result in any physical change to the
Property and does not obligate the City to subsequently approve any new use or physical change
to the Property for purposes of this Agreement; and
WHEREAS, nothing contained in the Agreement commits the City to approving any
project or any component thereof, and the City retains its full discretion and land use authority to
consider, modify, condition, approve, or reject any proposed project at the Property; and
WHEREAS, prior to considering any project proposed by HHC HA TRS, the City will
conduct an appropriate environmental review consistent with the California Environmental
Quality Act ("CEQA") and the CEQA Guidelines;
WHEREAS, the City prepared a report summarizing the details of the Agreement and the
economic benefit it is expected to generate (the "Report"), and made the Report available for public
inspection in accordance with California Government Code Section 52201; and
WHEREAS, the City Council conducted a duly noticed public hearing on June 11, 2024,
in which the City Council received and fully considered all oral and written testimony from
members of the public and City staff regarding the Report.
WHEREAS, the City Council has duly considered all terms and conditions of the proposed
Agreement, including all attachments thereto, and believes that the Project is in the best interests
of the City of Anaheim and the health, safety, and welfare of its residents, and in accord with the
public purposes and provisions of applicable state and local laws and requirements; and
WHEREAS, the City Council determines that the evidence in the record constitutes
substantial evidence to support the actions taken and the findings made in this Resolution, that the
facts stated in this Resolution are supported by substantial evidence in the record, including
testimony received at the public meeting, the staff presentations, the staff report, and all materials
in the Property's files. There is no substantial evidence, nor are there other facts, that detract from
the findings made in this Resolution. The City Council expressly declares that it considered all
evidence presented and reached these findings after due consideration of all evidence presented to
it.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ANAHEIM:
Section 1. The City Council hereby finds and determines that the foregoing recitals are
true and correct and are a substantive part of this Resolution.
Section 2. The City Council hereby finds and determines, based on all documentation,
testimony, and other evidence in the record before it, that the consideration being paid to the City
for the Property is not less than the fair market value at its highest and best use, as determined by
an independent appraiser.
Section 3. Pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as
"CEQA"), the State of California Guidelines for the Implementation of the California
Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code
of Regulations; herein referred to as the "CEQA Guidelines"), the City Council finds that the
project involves the sale of an interest in an air -space parcel (Parcel 3) that is already fully
developed with the operating Parking Facility, and the approval of the Agreement will not result
in any physical change to the Property and does not obligate the City to subsequently approve any
new use or physical change to the Property. Thus, the City's sale of the Property is exempt from
CEQA pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty
that there is no possibility that the activity in question may have a significant effect on the
environment.
Section 4. The sale of the Property as provided in the Agreement will assist in the
creation of economic opportunity as described in California Government Code Sections 52201 and
52200.2, as further described in the Report prepared pursuant to Section 52001 and provided with
this Resolution.
Section 5. The City Council, based upon the foregoing and all oral and written testimony
from members of the public and City staff, hereby approves the Agreement, with such changes as
may be mutually agreed upon by the Buyer, the City Attorney, and the Executive Director of
Convention, Sports & Entertainment ("Director") (or his duly authorized representative),
respectively, as are minor and in substantial conformance with the form of the Agreement
submitted herewith. The Director and the City Clerk are hereby authorized to execute and attest
the Agreement, including any related attachments, on behalf of City. In such regard, the Director
(or his duly authorized representative) is authorized to sign the final version of the Agreement after
completion of any such revisions. Copies of the final form of the Agreement, when duly executed
and attested, shall be placed on file in the office of the City Clerk. Further, the Director (or his
duly authorized representative) is authorized to implement the 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 Agreement, including all exhibits thereto. The Director (or
his duly authorized representative) is hereby authorized to the extent necessary during the
implementation of the Agreement to make technical or minor changes and interpretations of the
Agreement after execution, as necessary to properly implement and carry out the Agreement,
including all exhibits thereto, provided any and all such changes shall not in any manner materially
affect the rights and obligations of the City under the Agreement.
Section 6. In addition to the authorization of Section 5 above, the Director is hereby
authorized, on behalf of the City, to sign all other documents necessary or appropriate to carry out
and implement the Agreement, including all exhibits thereto and including causing the issuance of
warrants in implementation thereto, and to administer the City's obligations, responsibilities, and
duties to be performed under the Agreement, including all exhibits thereto.
Section 7. The City Clerk shall certify to the adoption of this Resolution.
[SIGNATURES ON NEXT PAGE]
THE FOREGOING RESOLUTION is passed, approved, and adopted by the City Council
of the City of Anaheim this 11 th day of June , 2024, by the following roll call vote:
AYES: Mayor Aitken and Council Members Kurtz, Diaz,
Leon, Rubalcava, Faessel and Meeks
NOES: None
ABSTAIN: None
ABSENT: None
CITY OF ANAHEIM
Ur JUNPU ,uvi
ATTEST:
CI4CRKbF THE CITY OF ANAHEIM
Execution
ANAHEIM HILTON GARAGE PARCEL
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the
day of June, 2024 (the "Effective Date"), by and between CITY OF ANAHEIM, a California
municipal corporation and charter city ("City" or "Seller"), and HHC HA TRS, Inc., a Delaware
corporation ("Purchaser'). Seller and Purchaser are sometimes individually referred to as "Party"
and collectively as the "Parties".
RECITALS
A. Seller is the owner of a certain airspace parcel of real estate, described as Parcel 3
in Parcel Map No. 88-251 (the "Real Property"), in the City of Anaheim, County of Orange, State
of California, as more particularly described in attached Exhibit A.
B. Purchaser is a wholly -owned subsidiary of HHC HA Investments II, Inc. ("Hotel
Owner"), a Delaware corporation, which is the owner of the certain adjacent airspace parcel of
real estate, described as Parcel 2 in Parcel Map No. 88-251 ("Parcel 2").
C. The Real Property, together with Parcel 2 are improved with a five -story enclosed
parking garage (the "Parking Facility"). Hotel Owner also is the owner of the Hilton Anaheim
("Hotel") located immediately adjacent to and connected with the Parking Facility. HHC HA
Investments, Inc. has leased the entirety of the Hotel and Parcel 2 to the Purchaser.
D. The Real Property and Parcel 2 are subject to that certain Declaration Establishing
Easements, Rights, Covenants, Conditions, and Restrictions Regarding Access to and Parking at
the Anaheim Convention Center and Hotel Enclosed Parking Facility, dated June 22, 1989, as
amended and as further described below ("Parking Facility Declaration") which, among other
things, sets forth the respective interest of the Parties based the percentage of the airspace parcels
that the Parties each own separately that comprise the whole Parking Facility. The City has a fifty-
one and seven hundredths percent (51.07%) interest and the Purchaser has a forty-eight and ninety-
three hundredths percent (48.93%) interest in the revenues and expenses under the Parking Facility
Declaration, as more particularly described therein.
E. In November 2023, Purchaser contacted the City to express its interest in
purchasing the Property.
F. Purchaser desires to purchase from Seller, and Seller desires to sell to Purchaser the
Property (as hereinafter defined), in accordance with and subject to the terms and conditions set
forth in this Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and Seller
agree as follows:
1. PURCHASE AND SALE. Subject to and in accordance with the terms and
conditions set forth in this Agreement, Purchaser shall purchase from Seller and Seller shall sell
to Purchaser the Real Property, together with: (i) all buildings and improvements owned by Seller
and located on the Real Property (collectively, the "Improvements") and any and all of Seller's
rights, easements, licenses and privileges presently thereon or appertaining thereto; (ii) Seller's
right, title and interest in and to the leases, licenses or other occupancy rights (the "Leases")
affecting the Property or any part thereof, (iii) all fixtures, equipment, tools and other tangible
property (collectively, the "Personal Property") owned by Seller, located on the Real Property and
used solely in connection therewith, if any; (iv) except as otherwise provided herein, all right, title
and interest of Seller under any and all of the management, maintenance, service, advertising and
other like contracts and agreements with respect to the ownership and operation of the Property,
including without limitation that certain Parking Garage Management Agreement, dated October
17, 2017, by and between Seller and SP Plus Corporation (the "Existing Garage Mana eg ment
Agreement") (collectively, the "Service Contracts"); all to the extent assignable to Purchaser and
applicable to the period from and after the Closing (as hereinafter defined); and (v) Seller's right,
title and interest in and to all intangible personal property relating to the Real Property and the
Improvements (including, to the extent available, any and all governmental permits, licenses and
approvals, warranties and guarantees, surveys, architectural drawings, plans and specifications, as -
built drawings for the Property, other intellectual property owned by Seller and used exclusively
in connection with the operation of the Property and any development rights), if and to the extent
transferable without third party consent or cost or liability to Seller (collectively, the "Intangible
Pro a ") (items (i) through (v) above, together with the Real Property, are collectively referred
to in this Agreement as the "Pro e "). All of the foregoing expressly excludes all property owned
by SP Plus Corporation, a Delaware corporation, the parking operator of the Property.
2. PURCHASE PRICE. The total consideration to be paid by Purchaser to Seller for
the Property is Twenty -Four Million Five Hundred Forty -Two Thousand Three Hundred Fourteen
and 00/100 Dollars ($24,542,314.00) (the "Purchase Price"). The Purchase Price shall be paid as
follows:
2.1 Capital Repair Credit. At Closing, Purchaser shall receive a credit against
the Purchase Price in the amount of One Million Five Hundred Forty -Two Thousand Three
Hundred Fourteen and 00/100 Dollars ($1,542,314.00) (the `.Capital Repair Credit"), which
represents Seller's 51.07% share of the capital repair costs for certain capital expenditures which
may include, but are not limited to, the concrete pavement overlay owed by City pursuant to the
Property Condition Assessment, dated January 2023, prepared by Michael Kreuzer, IDDS (the
"PCA").
2.2 Restricted Reserve Credit. At Closing, Purchaser shall receive a credit
against the Purchase Price in the amount of Eighteen Million Five Hundred Nineteen Thousand
Two Hundred Sixty -Three and 501100 Dollars ($18,519,263.50) (the "Restricted Reserve Credit"),
which represents Purchaser's 48.93% share of the restricted reserve for future operational costs
and capital improvement costs at the Parking Facility held by City as of April 30, 2024 (the
"Restricted Reserve Cut -Off Date") for the joint benefit of the parties pursuant to Section 8(b) of
the Parking Facility Declaration (the "Restricted Reserve"). As soon as reasonably possible
following the Closing, but not more than sixty (60) days thereafter, Seller shall pay to Purchaser
an amount equal to Purchaser's 48.93% share of funds deposited into the Restricted Reserve with
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respect to the period between the Restricted Reserve Cut -Off Date and the Closing Date. This
Section 2.2 shall survive the Closing.
2.3 Cash at Closing. At Closing, Purchaser shall pay to Seller, with current,
federal funds wire transferred to an account designated by Seller in writing, an amount equal to
the Purchase Price, minus the Capital Repair Credit and the Restricted Reserve Credit, and plus or
minus, as the case may require, the closing prorations and adjustments to be made pursuant to
Section 4.4 below.
2.4 Allocation of Purchase Price Among Real Property. Seller and Purchaser
agree that the Personal Property involved in the transactions contemplated is de minimis, and no
portion of the Purchase Price has been allocated to the Personal Property.
3. DUE DILIGENCE MATTERS.
3.1 Title Policy. Prior to the date hereof, Purchaser negotiated a pro forma
owner's title insurance policy for the Property in the form of Exhibit C attached hereto (the "Pro
Forma Title Policy"). It shall be a condition to Purchaser's obligation to consummate the Closing
hereunder that First American Title Insurance Company ("Title Insurer") be irrevocably
committed to issue, as of the Closing, an ALTA Owner's Policy of Title Insurance (the "Title
Policy") for the Property, in the amount of the Purchase Price and showing title to the Property
vested in Purchaser, in the form of the Proforma Title Policy.
3.2 Assumed Service Contracts. Purchaser shall have the right (but not the
obligation) to assume the Existing Garage Management Agreement (also referred to herein as the
"Assumed Service Contract" solely to the extent Purchaser elects to assume the same), effective
as of Closing, and in such case shall notify Seller prior to Closing and shall execute any documents
as necessary to effectuate the assignment of the Existing Garage Management Agreement to
Purchaser. If Purchaser does not elect to assume the Existing Garage Management Agreement,
Purchaser shall give written notice of same to the City, the City shall terminate the Existing Garage
Management Agreement, and the Closing date shall be delayed by the number of days necessary
(if any) to accommodate the 30-day termination notice required under Existing Garage
Management Agreement.
3.3 Other than the Existing Garage Management Agreement, there are no other
Service Contracts associated with Seller's ownership of the Property.
4. CLOSING.
4.1 Closing. The "Closing" of the transaction contemplated by this
Agreement (that is, the payment of the Purchase Price, the transfer of title to the Property, and the
satisfaction of all other terms and conditions of this Agreement) shall occur through escrow on the
Effective Date, which the parties anticipate will be June 25, 2024 (which is fourteen (14) days after
the date the City Council of the City approves this Agreement at a public hearing), or at such other
time and place as Seller and Purchaser shall mutually agree in writing at the Santa Ana office of
First American Title Insurance Company ("Escrow Agent'), pursuant to escrow instructions
consistent with the terms of this Agreement and otherwise reasonably satisfactory to Seller and
Purchaser. The "Closing Date" shall be the date of Closing.
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4.2 Seller's Closing Deliveries. On or prior to the scheduled Closing Date,
Seller shall execute (and notarize, as applicable) and deliver to Escrow Agent:
4.2.1 a counterpart original of a grant deed in the form attached hereto
as Exhibit E (the "Deed");
4.2.2 a counterpart original of a bill of sale in the form attached hereto
as Exhibit F;
4.2.3 a counterpart original of an assignment of the Assumed Service
Contract in the form attached hereto as Exhibit G (the "Assignment of Contract");
4.2.4
4.2.5 a counterpart original of a termination and release of that certain
Declaration Establishing Easements, Rights, Covenants, Conditions and Restrictions
Regarding Access to and Parking at the Anaheim Convention Center and Hotel Enclosed
Parking Facility, dated as of June 22, 1989 and recorded in the official records of Orange
County on June 27, 1989 as Document No. 89-340401 (as amended from time to time, the
"Parking Facility Declaration"), in the form attached hereto as Exhibit H (the
"Termination of Parkin Facility acility Declaration");
4.2.6 an affidavit stating, under penalty of perjury, Seller's U.S.
taxpayer identification number and that Seller is not a foreign person within the meaning
of Section 1445 of the Internal Revenue Code, together with the California Real Estate
Withholding Exemption Certificate (Form 593);
4.2.7 such evidence of Seller's power and authority and such other
matters as Title Insurer may reasonably require;
4.2.8 a closing statement (the "Closing Statement"), as required by
Section 4.4 below, setting forth the prorations and adjustments to the Purchase Price; and
4.2.9 any documentation required to be executed by Seller with respect
to any state, county or local transfer taxes or documentary taxes applicable to the
conveyance of the Real Property pursuant to this Agreement;
4.2.10 an Owner's Affidavit in the form attached hereto as Exhibit I;
4.2.11 The following items, to the extent in Seller's or its parking
operator's reasonable possession or control will be delivered to Purchaser at the Property
as of Closing:
(a) originals of the written Assumed Service Contract
relating to the Property that is to be assumed by Purchaser at Closing; provided, however,
that to the extent originals are unavailable, Seller shall deliver to Purchaser photocopies
thereof,
Cl.
(b) any pertinent records concerning the occupancy of the
Real Property, including, without limitation, any property files and records in connection
with the continued ownership, operation, management, maintenance and/or repair of the
Real Property, and any receipts, invoices and evidence of payments with respect to capital
improvements not already in Purchaser's possession, previously provided to Purchaser, or
that equally available to Purchaser; and
(c) copies of any permits, licenses, approvals, plans,
specifications, guaranties, warranties relating to the Property;
4.2.12 a notice letter to the vendor under the Assumed Service Contract
advising them of the change in ownership of the Property as of Closing;
4.2.13 such other instruments or documents which by the terms of this
Agreement are to be delivered by Seller at Closing; and
4.2.14 such other documents as Purchaser, the Title Company and
Escrow Agent, in their reasonable discretion, deems necessary or appropriate to
consummate the conveyance, transfer and assignment of the Property to Purchaser.
4.3 Purchaser's Closing Deliveries. On or prior to the scheduled Closing Date,
Purchaser shall execute (and notarize, as applicable) and deliver to Escrow Agent the following:
4.3.1 the funds required pursuant to Section 2.3 above;
4.3.2 a counterpart original of the Assignment of Contract;
4.3.3
4.3.4 a counterpart original of the Termination of Parking Facility
Declaration, executed by Purchaser or its affiliate, as applicable;
4.3.5 a counterpart original of the Closing Statement;
4.3.6 such evidence of Purchaser's power and authority and such other
matters as Title Insurer may reasonably require;
4.3.7 the California Preliminary Change of Ownership Report;
4.3.8 such other instruments or documents which by the terms of this
Agreement are to be delivered by Purchaser at Closing, including, without limitation,
counterparts of any transfer tax declarations.
4.4 Closing Prorations and Adjustments. The Escrow Agent shall prepare the
draft Closing Statement of the prorations and adjustments required by this Agreement for Seller's
review and approval and shall thereafter submit it to Purchaser for review and comment at least
five (5) business days prior to the Closing Date.
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4.4.1 Except as otherwise provided in this Section 4.4, the following
items are to be prorated, adjusted or credited (as appropriate) as of 11:59 p.m. local time
on the day before the Closing Date, it being understood that for purposes of prorations and
adjustments, (A) Seller shall be deemed to be the owner of the Property on the day
preceding the Closing Date, (B) Purchaser shall be deemed to be the owner of the Property
on and after the Closing Date and (C) this Section 4.4 shall not be deemed to modify any
cost or revenue sharing provisions of the Parking Facility Declaration, it being the intent
of the parties that costs and revenues attributable to periods prior to the Closing Date be
apportioned between the parties to the Parking Facility Declaration in accordance with its
terms, as applicable:
(a) real estate and personal property taxes and assessments
(on the basis of the most recent available tax bill if the current bill is not then available),
Purchaser being solely responsible for payment of all real estate taxes attributable to
periods after Closing, including any supplemental real estate taxes assessed against the
Property after Closing to the extent arising out of any change in ownership of the Property
or new construction occurring on or after Closing;
(b) revenues from operation of the Parking Facility;
provided, for the avoidance of doubt, in no event shall Purchaser be obligated to credit
Seller at Closing for any uncollected revenues, and Purchaser shall remit to Seller any
revenues attributable to periods prior to the Closing Date promptly following receipt
thereof,
(c) water, electric, telephone and all other utility charges;
provided, however, that any deposits with utility companies shall remain the property of
the Seller and shall not be prorated or credited (to the extent possible, utility prorations will
be handled by meter readings on the day immediately preceding the Closing Date);
Service Contracts;
(d) amounts due and payable by Seller under the Assumed
(e) assignable license and permit fees, if applicable; and
(f) other similar items of income and expenses of operation.
4.4.2 Except with respect to general real estate and personal property
taxes (which shall be reprorated upon the issuance of the actual bills, if necessary), any
proration which must be estimated at Closing shall be reprorated and finally adjusted as
soon as practicable after the Closing Date but in all events on or prior to the 180tb day after
the Closing Date; otherwise, all prorations shall be final. The obligations of Purchaser and
Seller under Section 4.4 of this Agreement shall survive the Closing.
4.5 Transaction Costs. Seller shall pay (i) one-half of the Escrow Agent's
escrow fee, (ii) the premium for the CLTA portion of the Title Policy, (iii) recording fees in
connection with any reconveyance requested hereby, (iv) all state, county and local transfer taxes
and sales taxes and (v) any additional costs and charges customarily charged to sellers in
accordance with common escrow practices in the county in which the Property is located, other
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than those costs and charges specifically required to be paid by Purchaser hereunder. Purchaser
shall pay (i) one-half of the Escrow Agent's escrow fee, (ii) the premium for the ALTA portion of
the Title Policy and the costs of any endorsements Purchaser may require, (iii) the recording fees
required in connection with the recordation of the Deed, (iv) the costs of any new survey that
Purchaser may obtain, and (v) any additional costs and charges customarily charged to buyers in
accordance with common escrow practices in the county in which the Property is located, other
than those costs and charges specifically required to be paid by Seller hereunder. In addition to
the foregoing, each party shall bear its own legal expenses in connection this Agreement and the
transactions contemplated herein. This Section 4.5 shall survive any termination of this
Agreement.
4.6 Possession. Upon Closing, Seller shall deliver to Purchaser possession of
the Property, subject to such matters as are permitted by or pursuant to this Agreement. On the
Closing Date or as soon thereafter as practicable, Seller shall send notices to all third parties under
the Assumed Service Contract informing them that Seller sold the Property to Purchaser on the
Closing Date.
RESERVED.
6. BROKERAGE. Each of Seller and Purchaser hereby warrants and represents to
the other party that it is not represented in this transaction by any person or entity (real estate
broker, finder or otherwise) that can claim the payment of a commission or fee with regard to the
transactions contemplated by this Agreement. Seller shall indemnify, defend and hold Purchaser
and its affiliates harmless from and against any and all claims of all brokers and finders in any way
related to the subject transaction regarding the Property, pursuant to this Agreement, including,
without limitation, all costs and fees (including reasonable attorneys' fees) incurred by Purchaser
and its affiliates in connection with any such claims. Purchaser shall indemnify, defend and hold
Seller and its affiliates, including but not limited to officers, officials, and employees of Seller,
harmless from and against any and all claims of all brokers and finders in any way related to the
subject transaction regarding the Property, pursuant to this Agreement, including, without
limitation, all costs and fees (including reasonable attorneys' fees and costs) incurred by Seller and
its affiliates in connection with any such claims. The obligations set forth in this Section 6 shall
survive Closing.
7. RESERVED.
8. CONDITIONS PRECEDENT.
8.1 Condition Precedent — Purchaser. It shall be a condition precedent to
Purchaser's obligation to consummate the Closing hereunder that:
8.1.1 Title Company shall be irrevocably committed to issue, as of the
Closing, the Title Policy for the Property, in the amount of the Purchase Price, in the form
of the proforma title policy (including endorsements) attached hereto as Exhibit C.
8.1.2 Seller shall have previously provided or made available to
Purchaser electronic copies of the following documents relating to the Property in Seller's
possession or control: Existing Garage Management Agreement.
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8.1.3 Each of Seller's representations and warranties set forth in this
Agreement shall be true, correct and complete.
8.1.4 Seller shall have complied with all covenants and agreements of
Seller contained in this Agreement.
8.1.5 At Closing, Seller shall have caused all Service Contracts (other
than Assumed Service Contracts) relating to the Property to be terminated.
8.2 Condition Precedent - Seller. It shall be a condition precedent to Seller's
obligation to consummate the Closing hereunder that:
8.2.1 This Agreement and the transactions contemplated hereby shall
have been approved by the Anaheim City Council. Seller's execution of this Agreement
shall be deemed evidence of such approval.
8.2.2 Each of Purchaser's representations and warranties set forth in
this Agreement shall be true, correct and complete.
8.2.3 Purchaser shall have complied with all covenants and agreements
of Purchaser contained in this Agreement.
9. RESERVED.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Seller's Representations and Warranties. Seller represents and warrants to
Purchaser as of the Effective Date as follows:
10.1.1 Seller is an existing public entity under the laws of the State of
California.
10.1.2 Seller has full power, right and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and performance of
this Agreement by Seller have been duly and properly authorized in accordance with
applicable law. The execution, delivery and performance of this Agreement by Seller and
the consummation by Seller of the transactions contemplated hereby will not violate any
applicable law or court order.
10.1.3 Exhibit D-1 attached hereto is a complete list of the Service
Contracts entered into by Seller that affect the Property, including all amendments,
modifications and supplements thereto. Seller has provided to Purchaser a true, correct and
complete copy of each Service Contract. Seller has not received any written notice of an
uncured default of Seller under the Assumed Service Contract and to Seller's knowledge,
(i) no service provider is in default under any Assumed Service Contract, and (ii) no event
has occurred which, with notice, would result in a default by Seller or the service provider
under any Assumed Service Contract.
10.1.4 Other than the Parking Facility Declaration, there are no leases,
licenses or other agreements granting a right of occupancy, use or possession with respect
to the Property (including any parking space located therein).
10.1.5 Seller has not received written notice from any governmental
authority having the power of eminent domain of any condemnation of the Property or any
part thereof.
10.1.6 Seller is not aware of any litigation, arbitration, mediation, or
other legal action or proceeding pending against Seller or its parking operator with respect
to the Property, and Seller does not have any knowledge of any such threatened litigation,
arbitration, mediation, or legal action or proceeding against Seller or its parking operator
with respect to the Property.
10.1.7 To Seller's knowledge, neither the Property nor the current use,
occupation or condition thereof violates any applicable laws and ordinances (including
Environmental Laws, as hereafter defined) or applicable deed restrictions or other
covenants, restrictions or agreements. Seller has not received notice regarding any alleged
violation of any applicable laws, ordinances, applicable deed restrictions or other
covenants, restrictions or agreements with respect to the Property.
10.1.8 Seller has no knowledge, except as otherwise disclosed to
Purchaser in writing prior to the date hereof in a written notice that complies with the
requirements of Section 14.6, of the existence or prior existence on the Property of any
Hazardous Materials, nor of the existence of any above or below ground storage tank.
Purchaser acknowledges that any customary vehicle byproducts, including but not limited
to oil and motor vehicle fuel, are expressly excluded from the definition of Hazardous
Materials for purposes of the immediately preceding sentence, as referred to herein and
defined below. Seller has not received notice from any regulatory agency regarding any
alleged violation of Environmental Laws related to the release of any Hazardous Materials
at the Property.
10.1.9 Other than the rights of Purchaser under this Agreement, no
person or entity has any conditional or unconditional right or option to purchase or ground
lease all or any portion of the Property.
10.1.10 Seller has no employees who work at the Property. Seller is not
subject to any collective bargaining agreement or other labor union contract with respect
to the Property.
10.1.11 Seller is not aware of any permits, licenses and other approvals
required to operate the Parking Facility.
10.1.12 There are no ongoing capital improvements projects at the
Property, and there are no outstanding amounts due in connection with any prior capital
improvement project or other work at the Property.
R]
10.1.13 Seller has delivered to Purchaser true and correct copies of the
Statement of Revenue and Expenses relating to the Parking Facility for the calendar years
ending December 31, 2022 and December 31, 2023 and for the period from January 1,
2024 through March 2024. All tax filings relating to operation of the Parking Facility that
are required to have been submitted by or on behalf of Seller have been timely submitted
and paid in full.
10.1.14 Seller is not (a) identified on the Government List (as hereinafter
defined) or (b) a person with whom a citizen of the United States is prohibited to engage
in transactions by any trade embargo, economic sanction, or other prohibition of United
States law, rule, regulation or Executive Order of the President of the United States.
10.1.15 Seller has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or suffered the filing of an involuntary
petition by Seller's creditors, suffered the appointment of a receiver to take possession of
substantially all of Seller's assets, suffered the attachment or other judicial seizure of
substantially all of Seller's assets, admitted Seller's inability to pay Seller's debts as they
come due, or made an offer of settlement, extension or composition to Seller's creditors
generally.
10.1.16 Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
10.1.17 Seller is not a parry in interest under Section 3(14) of the
Employee Retirement Income Security Act of 1974 (" ERISA"), or a disqualified person
under Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended (the "Code"),
except with respect to plans maintained for the benefit of employees of Seller or its
subsidiaries. Seller's sale of the Property will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code by any person related
to Seller.
10.2 Knowledge. When used in this Agreement, the term "to Seller's
knowledge" shall mean and be limited to the actual (and not imputed, implied or constructive)
current knowledge of Tom Morton at the City of Anaheim Convention, Sports and Entertainment
Department, following the questioning of Seller's property manager. When used in this
Agreement, the term "to Purchaser's knowledge" or words of similar import shall mean and be
limited to the actual (and not imputed, implied or constructive) knowledge, following reasonable
inquiry, of Majed Mubarak A1Mansouri, board member of Purchaser. Notwithstanding anything
to the contrary set forth in this Agreement, the foregoing individuals shall have no personal liability
or liability whatsoever with respect to any matters set forth in this Agreement or any of Seller's or
Purchaser's representations and/or warranties herein being or becoming untrue, inaccurate or
incomplete. If Purchaser acquires the Property with actual knowledge of an untrue or incorrect
representation or warranty, then upon the Closing, Purchaser shall be deemed to have fully and
unconditionally waived and released any and all Claims whatsoever with respect to such untrue or
incorrect representation or warranty.
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10.3 Survival of Seller's Representations and Warranties. The representations
and warranties of Seller set forth in Section 10.1 shall survive the Closing and the delivery of the
Deed for a period of twelve (12) months following the Closing Date (the "Survival Period").
Notice of any claim as to a breach of any representation or warranty must be made to Seller prior
to the expiration of such twelve (12) month period or it shall be deemed a waiver of Purchaser's
right to assert such claim.
10.4 Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller as of the Effective Date as follows:
10.4.1 Purchaser is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Delaware.
10.4.2 Purchaser has full power, right and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and performance of
this Agreement by Purchaser have been duly and properly authorized by proper company
action in accordance with applicable law and with the operating agreement of Purchaser.
The execution, delivery and performance of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby will not violate the
organizational documents, or other agreements made by or binding upon, Purchaser, any
applicable law or court order.
10.4.3 Purchaser is in compliance with the requirements of Executive
Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the "Order") and other similar
requirements contained in the rules and regulations of the U.S. Office of Foreign Assets
Control, Department of the Treasury ("OFAC") and in any enabling legislation or other
executive orders or regulations in respect thereof (the Order and such other rules,
regulations, legislation, or orders are collectively called the "Orders"). Purchaser is not (a)
identified on the OFAC List (as hereinafter defined) and/or on any other list of terrorists or
terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or
pursuant to any other applicable Orders (such lists are collectively referred to as the "Lists")
or (b) a person with whom a citizen of the United States is prohibited to engage in
transactions by the Orders, including but not limited to any trade embargo, economic
sanction, or other prohibition of United States law, rule, regulation or Executive Order of
the President of the United States. The term "OFAC List" shall mean the list of specially
designated nationals and blocked persons subject to financial sanctions that is maintained
by OFAC and any other similar list maintained by OFAC pursuant to any law, rule,
regulation or Executive Order of the President of the United States, including, without
limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive
Order of the President of the United States.
10.4.4 Purchaser is not a party in interest under Section 3(14) of ERISA,
or a disqualified person under Section 4975(e)(2) of the Code.
10.4.5 Purchaser's acquisition of the Property will not constitute or
result in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
11
10.4.6 Purchaser is not an entity whose assets are deemed to be "plan
assets" under ERISA, and the funds being used by Purchaser to acquire the Property do not
constitute in full or in part "plan assets" subject to ERISA (as defined in 29 C.F.R.
§ 2510.3-101).
10.5 Survival of Purchaser's Re resentations and Warranties. The
representations and warranties of Purchaser set forth in Section 10.4 shall survive the Closing and
delivery of the Deed for the Survival Period. Notice of any claim as to a breach of any
representation or warranty must be made to Purchaser prior to the expiration of such twelve (12)
month period or it shall be deemed a waiver of Seller's right to assert such claim.
11. AS -IS.
11.1 AS -IS CONDITION. SUBJECT TO SELLER'S
REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY SET FORTH
IN THIS AGREEMENT AND IN ANY DOCUMENTS DELIVERED PURSUANT TO THE
TERMS HEREOF BY SELLER TO PURCHASER AT CLOSING AND SELLER'S
OBLIGATIONS HEREUNDER AND IN ANY DOCUMENTS DELIVERED PURSUANT
TO THE TERMS HEREOF BY SELLER TO PURCHASER AT CLOSING WHICH
EXPRESSLY SURVIVE CLOSING (THE "EXPRESS SELLER REPRESENTATIONS
AND COVENANTS"), AND ACKNOWLEDGING PURCHASER'S OPPORTUNITY TO
INSPECT THE PROPERTY, PURCHASER AGREES TO PURCHASE THE PROPERTY
"AS IS", "WHERE IS", WITH ALL FAULTS AND CONDITIONS THEREON. ANY
WRITTEN OR ORAL INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR
RECORDS CONCERNING THE PROPERTY ("DISCLOSURES") PROVIDED OR
MADE AVAILABLE TO PURCHASER, ITS AGENTS OR CONSTITUENTS BY
SELLER, SELLER'S AGENTS, EMPLOYEES OR THIRD PARTIES REPRESENTING
OR PURPORTING TO REPRESENT SELLER, SHALL NOT BE REPRESENTATIONS
OR WARRANTIES, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. IN
PURCHASING THE PROPERTY OR TAKING OTHER ACTION HEREUNDER,
PURCHASER HAS NOT AND SHALL NOT RELY ON ANY SUCH DISCLOSURES, BUT
RATHER, PURCHASER SHALL RELY ONLY ON PURCHASER'S OWN INSPECTION
OF THE PROPERTY AND THE EXPRESS SELLER REPRESENTATIONS AND
COVENANTS. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD
"AS IS". PURCHASER ACKNOWLEDGES AND AGREES THAT THE FOREGOING
PROVISION SHALL SURVIVE THE CLOSING AND SHALL NOT BE MERGED WITHIN
THE DOCUMENTS TO BE DELIVERED BY SELLER TO PURCHASER UNDER THIS
AGREEMENT AT CLOSING.
11.2 NO ADDITIONAL REPRESENTATIONS. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS SELLER
REPRESENTATIONS AND COVENANTS, SELLER HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
12
RESPECT TO THE PROPERTY INCLUDING, WITHOUT LIMITATION, (A) THE
NATURE, QUALITY OR PHYSICAL CONDITION OF THE PROPERTY, (B) THE
CONSTRUCTION OF THE IMPROVEMENTS AND WHETHER THERE EXISTS ANY
CONSTRUCTION DEFECTS THEREIN, (C) THE WATER, SOIL AND GEOLOGY OF
THE PROPERTY, (D) THE INCOME TO BE DERIVED FROM THE PROPERTY, (E)
THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY CONDUCT THEREON, (F) THE COMPLIANCE OF OR
BY THE PROPERTY OR THE OPERATION THEREOF WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL AUTHORITY OR
BODY HAVING JURISDICTION THEREOVER, (G) THE HABITABILITY OR
FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE, (H) THE
MARKETABILITY OF THE PROPERTY OR THE ABILITY TO LEASE OR SELL
UNITS THEREIN, (I) THE STATUS OR CONDITION OF ENTITLEMENTS
PERTAINING TO THE PROPERTY, AND (J) ANY MATTER REGARDING TERMITES
OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS MATERIALS, AS
HEREINAFTER DEFINED. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT SELLER, UNLESS OTHERWISE REQUIRED BY LAW, IS UNDER NO
DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES REGARDING ANY MATTER
WHICH MAY BE KNOWN TO SELLER. PURCHASER ACKNOWLEDGES AND
AGREES THAT THE FOREGOING PROVISION SHALL SURVIVE THE CLOSING AND
SHALL NOT BE MERGED WITHIN THE DOCUMENTS TO BE DELIVERED BY SELLER
TO PURCHASER UNDER THIS AGREEMENT AT CLOSING.
11.3 RELEASE. PURCHASER REPRESENTS TO SELLER THAT
PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY OR
DESIRABLE TO SATISFY ITSELF AS TO ANY MATTER RELATING TO THE
PROPERTY AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER, SELLER'S AGENTS,
EMPLOYEES OR THIRD PARTIES REPRESENTING OR PURPORTING TO
REPRESENT SELLER, WITH RESPECT THERETO (OTHER THAN THE EXPRESS
SELLER REPRESENTATIONS AND COVENANTS). UPON CLOSING, PURCHASER
SHALL ASSUME THE RISK THAT ADVERSE MATTERS REGARDING THE
PROPERTY MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED, ON
BEHALF OF ITSELF AND ON BEHALF OF ITS TRANSFEREES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, TO WAIVE, RELINQUISH, RELEASE
AND FOREVER DISCHARGE SELLER AND SELLER'S OFFICERS, OFFICIALS AND
EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES
OF ACTION, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, BY REASON OF OR ARISING OUT OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, BY REASON OF OR ARISING OUT OF ANY
LATENT OR PATENT CONSTRUCTION DEFECT OR OTHER PHYSICAL
CONDITION (INCLUDING, WITHOUT LIMITATION, FUNGI, MOLD OR MILDEW)
WHETHER PURSUANT TO STATUTES IN EFFECT IN THE STATE OF CALIFORIVIA
13
INCLUDING, WITHOUT LIMITATION, CALIFORNIA CIVIL CODE SECTION 895
ET. SEQ OR ANY OTHER FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR
HEALTH AND SAFETY LAW OR REGULATION, THE EXISTENCE OF ANY
HAZARDOUS MATERIAL WHATSOEVER, ON, AT, TO, IN, ABOVE, ABOUT, UNDER,
FROM OR IN THE VICINITY OF THE PROPERTY AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS WHATSOEVER
REGARDING THE PROPERTY. THIS RELEASE INCLUDES CLAIMS OF WHICH
PURCHASER IS PRESENTLY UNAWARE AND OF WHICH PURCHASER DOES NOT
PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY PURCHASER, WOULD
MATERIALLY AFFECT PURCHASER'S RELEASE OF SELLER.
PURCHASER EXPRESSLY WAIVES ALL RIGHTS UNDER CALIFORNIA CIVIL
CODE SECTION 1542, AS AMENDED OR MODIFIED, WHICH PROVIDES THAT.
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
IN THIS REGARD AND TO THE EXTENT PERMITTED BY LAW, PURCHASER
HEREBY AGREES THAT PURCHASER REALIZES AND ACKNOWLEDGES THAT
FACTUAL MATTERS NOW UNKNOWN TO PURCHASER MAY HAVE GIVEN OR
MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS,
DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH
ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND
PURCHASER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE
WAIVERS AND RELEASES CONTAINED HEREIN HAVE BEEN NEGOTIATED AND
AGREED UPON BY PURCHASER IN LIGHT OF THAT REALIZATION AND THAT
PURCHASER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND
ACQUIT SELLER AND SELLER'S OFFICERS AND EMPLOYEES FROM ANY SUCH
UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES,
DAMAGES, COSTS, LOSSES AND EXPENSES.
PURCHASER'S RELEASE OF SELLER AS SET FORTH IN THIS SECTION 11.3
SHALL NOT PERTAIN TO ANY CLAIM OR CAUSE OF ACTION BY PURCHASER
AGAINST SELLER FOR (I) A BREACH BY SELLER OF A REPRESENTATION,
WARRANTY OR COVENANT EXPRESSLY SET FORTH IN THIS AGREEMENT OR
IN ANY DOCUMENTS DELIVERED PURSUANT TO THE TERMS HEREOF BY
SELLER TO PURCHASER AT CLOSING OR ANY SUCH OTHER OBLIGATIONS OF
SELLER, ALL TO THE EXTENT ANY OF THE FOREGOING EXPRESSLY SURVIVE
CLOSING, (II) SELLER'S FRAUD, GROSS NEGLIGENCE OR INTENTIONAL
WRONGDOING, (III) THE RIGHT OF PURCHASER TO NAME SELLER AS A
DEFENDANT IN ANY THIRD PARTY CLAIM FILED AGAINST PURCHASER OR ITS
AGENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, TO THE EXTENT SUCH CLAIM
AROSE AS A RESULT AN EVENT OR CIRCUMSTANCE THAT OCCURRED DURING
14
SELLER'S PERIOD OF OWNERSHIP OF THE PROPERTY AND WAS NOT CAUSED
BY THE ACTS OR OMISSIONS OF PURCHASER OR SUCH AGENTS, AFFILIATES,
SUCCESSORS OR ASSIGNS, (IV) CLAIMS ARISING UNDER THE PARKING
FACILITY DECLARATION OR ANY OTHER AGREEMENT BETWEEN SELLER AND
PURCHASER OR ITS AFFILIATES, AND/OR (V) CLAIMS RELATING TO OR
ARISING FROM PROPERTIES OF SELLER OTHER THAN THE PROPERTY AND/OR
CLAIMS AGAINST SELLER IN ITS REGULATORY CAPACITY (AS OPPOSED TO ITS
PROPRIETARY CAPACITY).
Purchaser's Initials Seller's Initials
As used in this Agreement, "Hazardous Materials" or "Hazardous Substances" shall mean
(i) hazardous wastes, hazardous materials, hazardous substances, hazardous constituents, toxic
substances or related materials, whether solids, liquids or gases, including, but not limited to,
substances defined as "hazardous wastes," "hazardous materials," "hazardous substances," "toxic
substances," "pollutants," "contaminants," "radioactive materials", "toxic pollutants", or other
similar designations in, or otherwise subject to regulation under, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42
U.S.C. § 9601 et seq.; the Toxic Substance Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq.; the Resource Conservation and
Recovery Act ("RCRA" ), 42 U.S.C. § 6901, et seq.; the Clean Water Act ("CWA"), 33 U.S.C. §
1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Clean Air Act ("CAA"),
42 U.S.C. § 7401 et seq.; the California Water Resources Control Board; any Regional Water
Quality Control Board; the California Air Resources Board; Cal/Osha Standards Board Division
of Occupational Safety and Health; the California Department of Food and Agriculture; the
California Department of Health Services; and in any permits, licenses, approvals, plans, rules,
regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the
preceding laws or other similar federal, state or local laws, regulations, rules or ordinance now or
hereafter in effect relating to environmental matters (collectively, "Environmental Laws"); and (ii)
any other substances, constituents or wastes subject to any applicable federal, state or local law,
regulation or ordinance, including any environmental law, now or hereafter in effect, including but
not limited to (A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste aviation or
motor vehicle fuel and their byproducts, (E) asbestos, (F) lead in water, paint or elsewhere, (G)
radon, (H) Polychlorinated Biphenyls (PCB's), (I) ureaformaldehyde, (J) volatile organic
compounds (VOC), (K) total petroleum hydrocarbons (TPH), (L) benzine derivative (BTEX), and
(M) petroleum byproducts.
11.4 Survival. The provisions of this Section 11 shall survive the Closing.
Purchaser and Seller acknowledge and agree that the disclaimers and other agreements set forth
herein are an integral part of this Agreement and that Seller would not have agreed to sell the
Property to Purchaser for the Purchase Price and Purchaser would not have agreed to enter into the
transaction contemplated by this Agreement without such disclaimers and other agreements set
forth above.
12. LIMITATION OF LIABILITY.
15
12.1 Limitation of Liability. Notwithstanding anything to the contrary contained
herein, if the Closing shall have occurred (and Purchaser shall not have waived, relinquished or
released any applicable rights in further limitation), the aggregate liability of Seller arising
pursuant to or in connection with a breach of the representations and warranties of Seller under
this Agreement shall not exceed $750,000.00 (the "Cap"). Seller shall not be liable to Purchaser
in respect of a breach of the representations and warranties of Seller under this Agreement unless
and until the sum of such obligations exceeds Fifty Thousand and No/100ths Dollars ($50,000.00)
in the aggregate, in which event Seller shall be liable for the aggregate amount of all losses
regardless of the threshold, but subject to the Cap. The provisions of this Section 12.1 shall survive
the closing or any termination of this Agreement.
12.2 Intentionally Omitted.
12.3 No Personal Liability.
12.3.1 No Personal Liability of Seller's Officers and Employees. No
officer, official, director, employee or agent of Seller shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any agreement made
or entered into under or pursuant to the provisions of this Agreement, or any amendment
or amendments to any of the foregoing made at any time or times, heretofore or hereafter.
12.3.2 No Personal Liability of Purchaser's Officers and Employees.
No member or constituent partner in or agent of Purchaser, nor any member, partner,
trustee, director, officer, employee, beneficiary, shareholder, participant, representative or
agent of Purchaser shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under or pursuant
to the provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Seller and its successors
and assigns and, without limitation, all other persons and entities, shall look solely to
Purchaser's assets for the payment of any claim or for any performance.
12.3.3 The provisions of this Section 12.3 shall survive the Closing or
any termination of this Agreement.
13. PURCHASER'S POST -CLOSING OBLIGATIONS.
13.1 Within thirty (30) months following the Closing, Purchaser shall expend an
amount equal to the Capital Repair Credit to perform certain capital expenditures included in the
PCA, which may include, but are not limited to, the concrete pavement overlay (the "Capital
Repair Project"). Purchaser shall provide to Seller written evidence of the funds expended for the
Capital Repair Project, which may include lien waivers, paid invoices or other evidence deemed
satisfactory to Purchaser, acting reasonably. This Section 13 shall survive the Closing.
13.2 Following the Closing, Hotel Owner shall continue discussions with the
City, each acting in good faith, for a reasonable period of time regarding (i) the quitclaim by Hotel
Owner of certain obsolete sewer and utility easements encumbering the Anaheim Convention
Center North Hall, which easements are depicted on Exhibit K attached hereto, and (ii) the granting
of pedestrian access and emergency vehicle access rights by the City to Hotel Owner, at no cost to
16
Purchaser or Hotel Owner, across specified portions of the Convention Center Plaza, within the
areas depicted on Exhibit K attached hereto.
14. MISCELLANEOUS.
14.1 Entire Agreement; Exhibits. All understandings and agreements heretofore
had between Seller and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. All exhibits referenced herein
and attached hereto are incorporated in this Agreement by this reference.
14.2 Assignment. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser; provided, notwithstanding the foregoing, Purchaser shall
have the right to assign this Agreement to an entity, the majority of the ownership interests in
which, are owned by Purchaser and such entity is under the control of Purchaser, with Seller's
prior written consent, which shall not be unreasonably withheld. To be effective, such assignment
shall (i) be fully executed by assignor and assignee and delivered to Seller at least five (5) days
prior to Closing, and (ii) contain a provision whereby the assignee assumes all of the obligations
of Purchaser under this Agreement. Upon an assignment of this Agreement: (1) Purchaser shall
be relieved of any liability under this Agreement, and (2) as used in this Agreement, the
"Purchaser" shall be deemed to refer to such assignee. Subject to the foregoing, this Agreement
shall inure to the benefit of and shall be binding upon Seller and Purchaser and their respective
successors and assigns.
14.3 No Modification. This Agreement shall not be modified or amended
except in a written document signed by Seller and Purchaser.
14.4 Time of the Essence. Time is of the essence of this Agreement.
14.5 Governinsi Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of California.
14.6 Notice. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered (i) personally, (ii) by certified
United States Mail, return receipt requested, postage prepaid, (iii) by overnight courier (such as
Federal Express), or (iv) by email with a confirmation copy sent by another method permitted in
this Section, addressed as follows:
If to Seller:
Convention, Sports and Entertainment Department
City of Anaheim
200 S. Anaheim Blvd. Anaheim, CA 92805
Attention: Tom Morton, Executive Director
Email: tmorton@anaheim.net
With copies to:
17
City Attorney
City of Anaheim
200 S. Anaheim Blvd. 3rd Floor Anaheim, CA 92805
Attention: Rob Fabela
Email: cityattorneysoffice@anaheim.net
If to Purchaser:
HHC HA TRS, Inc.
c/o Morgan Lewis & Bockius LLP
1111 Pennsylvania Avenue, NY
Washington, D.C. 20004
With copies to:
Gibson Dunn & Crutcher LLP
1 Embarcadero Center Suite 2600
San Francisco, California 94111-3715
Attention: Allison Kidd
Email: AKidd@gibsondunn.com
All notices given in accordance with the terms hereof shall be deemed received (a) when
delivered personally or otherwise received or refused, (b) on the third (3rd) business day following
deposit with the United States Mail as a certified matter with postage prepaid, (c) on the next
business day if sent by overnight courier, and (d) on the same day if sent by email before 5:00 p.m.
(pacific time) on a business day, and otherwise on the next business day. Any notice given by
counsel to a party shall have the same effect as if given by such party. Either party hereto may
change the address for receiving notices, requests, demands or other communication by notice sent
in accordance with the terms of this Section 14.6.
14.7 Venue. Subject to Section 14.8, venue for any dispute arising out of this
Agreement shall be in the Superior Court of California, County of Orange or the United Stated
District Court, Central District of California.
14.8 Dispute Resolution.
14.8.1 Any and all disputes which the Parties have been unable to
resolve by informal methods after undertaking a good faith effort to do so, must first be
submitted to non -binding mediation under the procedures described in this Section 14.8
prior to the commencement of any litigation.
14.8.2 Either Party may initiate mediation by providing a written request
for mediation to the other Party in accordance with Section 14.6 which notice shall include
a description of the dispute and the relief requested. The Parties will cooperate with one
another in selecting the mediator ("Mediator") from the panel of neutrals from the Judicial
18
Arbitration and Mediation Services, Inc. ("JAMS"), its successor, or any other mutually
acceptable non -JAMS Mediator, and in scheduling the time and place of the mediation.
Such selection and scheduling will be completed within forty-five (45) days after the
request for mediation. Unless otherwise agreed to by the Parties, the mediation will not be
scheduled for a date that is greater than ninety (90) days from the date of the request for
mediation. Such mediation shall be completed within forty-five (45) days of the initial
mediation date unless otherwise agreed to by the Parties. The Parties shall share equally
in the costs of such mediation (other than each Parry's individual attorneys' fees and costs
related to the Party's participation in the mediation which fees and costs will be borne by
such Party). The mediation and all offers, promises, conduct, and statements, whether oral
or written, made in connection with or during the mediation by either of the Parties, their
agents, representatives, employees, experts, and attorneys (and in the case of Seller, elected
and appointed officials), and by the Mediator or any of the Mediator's agents,
representatives, and employees, will not be subject to discovery and will be confidential,
privileged, and inadmissible for any purpose, including impeachment in any arbitration or
other proceeding between or involving the Parties, or either of them; provided, evidence
that is otherwise admissible or discoverable will not be rendered inadmissible or non -
discoverable as a result of its use in the mediation.
14.8.3 The Parties acknowledge and agree that irreparable damage
would occur if certain provisions of this Agreement are not performed in accordance with
the terms of this Agreement, that money damages would not be a sufficient remedy for any
such breach of these provisions of this Agreement, and that the Parties shall be entitled,
without the requirement of posting a bond or other security, to seek a preliminary
injunction, temporary restraining order, or other provisional relief as a remedy for a breach
of Section 14.9 of this Agreement. Such a request for provisional relief does not waive a
Party's right to seek other remedies for the breach of the provisions specified above in
accordance with Section 14.8.1, notwithstanding any prohibition against claim -splitting or
other similar doctrine. The other remedies that maybe sought include specific performance
and injunctive or other equitable relief, plus any other remedy specified in this Agreement
for the breach of the provision, or if the Agreement does not specify a remedy for the
breach, all other remedies available at law or equity to the Parties for the breach.
14.9 Confidentiality. Seller shall not issue any press release or other media
publicity of any kind whatsoever with respect to this Agreement or the transactions contemplated
hereby. Purchaser acknowledges that this Agreement, and all closing documents delivered to or
by Seller pursuant to the terms of this Agreement, may be subject to disclosure as required by the
California Public Records Act (California Government Code Section 6250, et seq. hereinafter
referred to as "CPRA") or the Brown Act and may become public records. Seller shall promptly
notify Purchaser of any public records requests under the CPRA, the Brown Act, or any other
applicable law that involves documents, communications or information provided by or on behalf
of Purchaser (a "Disclosure Request"). If Seller does not intend to contest such Disclosure Request
but Purchaser (in its sole discretion) desires to contest the Disclosure Request, Purchaser shall
assume all responsibility for any challenges it wishes to make to the Disclosure Request within all
applicable deadlines, including, but not limited to, the timely filing of any motions or other court
actions with the Orange County Superior Court, or such court where any action has been filed, to
protect such records, in accordance with the CPRA and/or other applicable laws. If Purchaser
19
notifies Seller that it elects to so contest the Disclosure Request, Seller shall not make any
production of the applicable disclosure prior to the deadline applicable to such Disclosure Request
under applicable law, and if court filings with respect to the Disclosure Request have been filed
by Purchaser, Seller will thereafter comply with court orders regarding such Disclosure Request;
provided, in no event shall Seller be required to act in violation of the applicable requirements of
the CPRA and/or other applicable laws. If Seller is joined in any such proceeding that is
unilaterally pursued by Purchaser, then Purchaser shall indemnify, defend and hold harmless Seller
from and against reasonable, out-of-pocket legal fees that may be incurred by Seller in such
proceeding and/or any court -ordered damages awarded against Seller in favor of the party
requesting the information, except to the extent resulting from acts or omissions taken by Seller in
such proceeding and/or Seller's gross negligence or willful misconduct. The provisions of this
Section 14.9 shall survive the Closing or the earlier termination of this Agreement.
14.10 No Finance Contingency. Purchaser acknowledges and agrees that
Purchaser's obligations under this Agreement are not in any manner contingent or conditioned
upon Purchaser obtaining financing in order to purchase the Property.
14.11 Counterpart Signatures. This Agreement may be signed in any number of
counterparts each of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
14.12 Designation of Escrow Agent as Reporting` Person. Seller and Purchaser
hereby authorize Escrow Agent to act as and perform the duties and obligations of the "reporting
person" with respect to the transaction contemplated by this Agreement for purposes of 26 C.F.R.
Section 1.6045-4(e)(5) relating to the requirements for information reporting on real estate
transaction closed on or after January 1, 1991.
14.13 Weekends and Legal Holidays. "Business day" shall mean any day of the
week other a Saturday, Sunday, or US federal or California or City holiday. Whenever the time
for performance of a covenant or condition required to be performed pursuant to the terms of this
Agreement falls upon a day other than a "business day", such time for performance shall be
extended to the next business day.
14.14 Signatures. Handwritten signatures to this Agreement shall be the only
valid and effective method to bind the party so signing. Each party agrees to promptly deliver to
the other party an executed original of this Agreement with its actual signature upon request, but
a failure to do so shall not affect the enforceability of this Agreement.
14.15 Legal Representation. Each party hereto has been represented by legal
counsel in connection with the negotiation of the transactions herein contemplated and the drafting
and negotiation of this Agreement. Each party hereto and its counsel has had an opportunity to
review and suggest revisions to the language of this Agreement. Accordingly, no provision of this
Agreement shall be construed for or against or interpreted to the benefit or disadvantage of any
party by reason of any party having or being deemed to have structured or drafted such provision.
14.16 Prevailing Party Attorney Fees. If a party to this Agreement shall bring any
action, suit, counterclaim or appeal against the other party declaratory or otherwise, to enforce the
20
terms hereof or to declare rights hereunder (an "Action"), the non -prevailing party in such Action
shall pay to the prevailing party in such Action a reasonable sum for the prevailing party's
attorney's fees and expenses incurred in prosecuting or defending such Action and/or enforcing
any judgment, order, ruling or award (a "Decision"), granted therein, all of which shall be deemed
to have accrued from commencement of such Action. Any Decision entered into in such Action
shall contain a specific provision providing for the recovery of attorneys' fees and expenses
incurred in obtaining and enforcing such Decision. The court may fix the amount of reasonable
attorney's fees and expenses upon the request of any party. For purposes of this Section 14.16,
attorneys' fees shall include, without limitation, fees incurred in connection with (i) post judgment
motions and collection actions, (ii) contempt proceedings, (iii) garnishment, levy and debtor and
third party examination, (iv) discovery, and (v) bankruptcy litigation. The terms of this Section
14.16 shall survive Closing or any earlier termination of this Agreement.
14.17 Natural Hazards. As used herein, the term "Natural Hazard Area" shall
mean those areas identified as natural hazards in the Natural Hazard Disclosure Act, California
Government Code Sections 8589.3, 8589.4, and 51183.5, and California Public Resources Code
Sections 2621.9, 2694, and 4136, and any successor statutes or laws (the "Act"). Prior to Closing,
Seller shall provide Purchaser with a Natural Hazard Disclosure Statement ("Disclosure
Statement") for the Real Property. Purchaser acknowledges that Seller has or will cause Title
Insurer to retain the services of an expert (the "Natural Hazard Expert") to examine the maps and
other information made available to the public by government agencies for the purpose of enabling
Seller to fulfill their disclosure obligations with respect to the Act and to prepare a written report
of the result of its examination (the "Report'). Purchaser acknowledges that the Report fully and
completely discharges Seller from its disclosure obligations under the Act, and, for the purpose of
this Agreement, the provisions of California Civil Code Section 1103.4 regarding the non -liability
of Seller for errors or omission not within its personal knowledge shall be deemed to apply and
the Natural Hazard Expert shall be deemed to be an expert dealing within the scope of its expertise
with respect to the examination and Report. Purchaser acknowledges and agrees that nothing
contained in the Disclosure Statement shall release Purchaser from its obligation to fully
investigate the condition of the Property, including, without limitation, whether the Property is
located in any Natural Hazard Area. Purchaser further acknowledges and agrees that the matters
set forth in the Disclosure Statement or Report may change on or prior to the Closing Date and
that Seller has no obligation to update, modify, or supplement the Disclosure Statement or Report.
Purchaser shall be solely responsible for preparing and delivering its own Natural Hazard
Disclosure Statement to subsequent prospective buyers of the Property. Purchaser shall sign and
acknowledge receipt of the Disclosure Statement and/or Report if requested by Seller. The
provisions of this Section 14.17 shall survive the Closing.
14.18 Environmental Inquiry. Purchaser acknowledges and agrees that Seller has
indicated that the sole inquiry and investigation that Seller has conducted in connection with the
environmental condition of the Property is to review any environmental reports in its possession,
and that, for all purposes, including California Health and Safety Code Section 25359.7, Seller has
acted reasonably in solely relying upon said inquiry and investigation.
14.19 Descriptive Headings: Word Meaning. The descriptive headings of the
paragraphs of this Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any provisions of this Agreement. Words such as "herein",
21
"hereinafter", "hereof' and "hereunder" when used in reference to this Agreement, refer to this
Agreement as a whole and not merely to a subdivision in which such words appear, unless the
context otherwise requires. The singular shall include the plural and the masculine gender shall
include the feminine and neuter, and vice versa, unless the context otherwise requires. The word
"including" shall not be restrictive and shall be interpreted as if followed by the words "without
limitation".
14.20 Further Instruments. Each party, promptly upon the request of the other,
shall execute and have acknowledged and delivered to the other or to Escrow Agent, as may be
appropriate, any and all further instruments reasonably requested or appropriate to evidence or
give effect to the provisions of this Agreement and which are consistent with the provisions of this
Agreement.
14.21 Authority. The City Manager shall have the authority to take ministerial
actions to implement and enforce this Agreement on behalf of the City; provided, however, that
(i) in no event shall the City Manager (or designee) have the authority, without City Council
approval or express delegation of authority, to approve modifications or amendments to this
Agreement that materially change this Agreement or impair or jeopardize the City's rights
hereunder; (ii) the City Manager (or designee) shall have the right, even if he or she has the
authority to act hereunder without seeking City Council approval, to seek such approval, and in
such event the City shall not be deemed to be in default hereunder; and (iii) any document
evidencing the City Manager's (or designee's) exercise of the authority hereunder shall be subject
to review and approval as to form by the City Attorney.
14.22 Third Parties. No third party shall be entitled to enforce or otherwise shall
acquire any right, remedy or benefit by reason of any provision of this Agreement. This provision
shall survive the termination of this Agreement and the Closing.
[SIGNATURE PAGE FOLLOWS]
22
Execution
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
Attest:
Theresa Bass, City Clerk
Approved as to form:
Ryan O. Hodge, Deputy City Attorney
Russell E. Morse, Meyers Nave
Outside Real Estate Counsel
Date of Execution: June _, 2024
SELLER:
CITY OF ANAHEIM,
a municipal corporation and charter city
By:
Name:
Title:
PURCHASER:
HHC HA TRS, Inc.,
a Delaware corporation
By: _
Name:
Title:
23
Execution
The undersigned joins in the execution of this Agreement solely for the purpose of its
agreement to perform the role of "Escrow Agent" in accordance with the terms hereof.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Title:
EXHIBITS
A — Legal Description
B — Intentionally Omitted
C — Proforma Title Policy
D-1 List of Service Contracts
D-2 — List of Assumed Service Contracts
E — Form of Grant Deed
F — Form of Bill of Sale
G — Form of Assignment of Contracts
H — Form of Termination of Parking Facility Declaration
I — Form of Owner's Affidavit
K — Map of Sewer Easement Area
25
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Anaheim, County of Orange, State of California, described as follows:
PARCEL A:
PARCEL 3 OF PARCEL MAP NO. 88-251, IN THE CITY OF ANAHEIM, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 233, PAGES 41
THROUGH 46 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPTING ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW A
DEPTH OF 500 FEET MEASURED VERTICALLY BELOW THE SURFACE OF SAID LAND
WITHOUT THE RIGHT OF SURFACE ENTRY AT ANY TIME UPON THE SURFACE OF
SAID LAND OR WITHIN THE TOP 500 FEET THEREOF FOR THE PURPOSE OF
DRILLING FOR AND PRODUCING SAID SUBSTANCES, AS EXCEPTED BY CLARENCE
W. MAUERHAN, ET AL, IN A DEED RECORDED MARCH 8, 1965 IN BOOK 7436, PAGE
487 OF OFFICIAL RECORDS.
PARCEL B:
NON-EXCLUSIVE EASEMENTS AS GRANTED AND DESCRIBED IN THAT CERTAIN
"DECLARATION ESTABLISHING EASEMENTS, RIGHTS, COVENANTS, CONDITIONS
AND RESTRICTIONS REGARDING ACCESS TO AND PARKING AT THE ANAHEIM
CONVENTION CENTER AND HOTEL ENCLOSED PARKING FACILITY" RECORDED
JUNE 27, 1989 AS INSTRUMENT NO. 89-340401 OF OFFICIAL RECORDS, AND AS
MODIFIED BY DOCUMENTS RECORDED SEPTEMBER 30, 1994 AS INSTRUMENT NO.
94-0589094 AND MAY 18, 1999 AS INSTRUMENT NO. 19990365964, BOTH OF OFFICIAL
RECORDS.
PARCEL C:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS AS GRANTED AND
DESCRIBED IN THAT CERTAIN "GRANT OF EASEMENTS: RECORDED JUNE 27, 1989
AS INSTRUMENT NO. 89-340399 OF OFFICIAL RECORDS.
A-1
EXHIBIT B
Intentionally Omitted
EXHIBIT C
PRO FORMA TITLE POLICY
[To be attached prior to the close of escrow]
C-1
EXHIBIT D-1
LIST OF SERVICE CONTRACTS
Parking Garage Management Agreement, dated October 17, 2017, by and between Seller
and SP Plus Corporation
D-1-1
EXHIBIT D-2
LIST OF ASSUMED SERVICE CONTRACTS
1, Parking Garage Management Agreement, dated October 17, 2017, by and between Seller
and SP Plus Corporation.
D-2-1
EXHIBIT F
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
AND MAIL TAX STATEMENTS TO:
APN:
DOCUMENTARY TRANSFER TAX $
_ Computed on the consideration or value of property conveyed;
OR
_ Computed on the consideration or value less liens or encumbrances
remaining at time of sale.
The tax has been determined by the undersigned grantor
RANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY
OF ANAHEIM, a municipal corporation and charter city ("Grantor"), does hereby GRANT to
HHC HA TRS, Inc., a Delaware corporation ("Grantee"), all of that certain real property in the
City of Anaheim, County of Orange, State of California, as more particularly described in Exhibit
"A" attached hereto and made a part hereof, subject to (i) all non -delinquent real estate taxes and
general and special assessments, (ii) all matters and such state of facts as would be reflected or
disclosed on or by an accurate survey or shown by a physical inspection of the Property as of the
date hereof, and (iii) all covenants, conditions, restrictions, reservations, rights, rights -of -way,
dedications, offers of dedication, easements and other matters, in each case, of record for the
Property as of the date hereof.
E-1
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed on this
day of )2024.
Attest:
Theresa Bass, City Clerk
Approved as to form:
Ryan O. Hodge, Deputy City Attorney
[" .71� I IC0.i�
CITY OF ANAHEIM
a municipal corporation and charter city
By:
Name:
Title:
E-2
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
County of
On before me,
a 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 that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
E-1
EXHIBIT F
FORM OF BILL OF SALE
THIS BILL OF SALE is made by the undersigned, CITY OF ANAHEIM, a municipal
corporation and chartered city ("Seller"), in favor of and to HHC HA TRS, Inc., a Delaware
Corporation ("Purchaser').
WHEREAS, Seller, as seller, and Purchaser, as purchaser, entered into that certain Real
Estate Sale Agreement dated as of June , 2024 (the "Agreement"), pursuant to which Seller
agreed to sell to Purchaser, and Purchaser agreed to acquire from Seller, among other things,
Seller's ownership interest in the real property legally described on Exhibit A attached hereto
and all of Seller's right, title and interest in the building located at such parcel (the
"Pro e "), including Seller's interest in certain real and personal property related thereto, in
each case, subject to the terms and conditions in the Agreement;
WHEREAS, as part of the acquisition transaction contemplated by the Agreement,
Seller is to sell, convey, and transfer to Purchaser, by bill of sale, the Personal Property (as
defined in the Agreement) and the Intangible Property (as defined in the Agreement).
NOW, THEREFORE, pursuant to the Agreement, and in consideration of good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller
by these presents does GIVE, GRANT, CONVEY, ASSIGN, TRANSFER, BARGAIN,
SELL, REMISE, RELEASE, ALIENATE, SET OVER, and CONFIRM, unto Purchaser, its
successors and assigns, forever, as an entirety, all of Seller's right, title, and interest, if any, in
and to (a) the Personal Property; and (b) the Intangible Property.
Except as otherwise expressly provided in the Agreement, the sale of the Property is
made on an "AS IS", "WHERE IS", and "WITH ALL FAULTS" BASIS, and Purchaser
expressly acknowledges that in consideration of the agreements of Seller, except as otherwise
expressly provided in the Agreement, Seller makes no representations or warranties
whatsoever, regarding said Personal Property or the Intangible Property, including, without
limitation, any representations or warranties related to title, condition, habitability, quality,
merchantability or fitness for a particular purpose. If either Assignee or Assignor, or their
respective successors or assigns, file suit to enforce the obligations of the other party under this
Assignment, the terms and conditions of Section 14.16 of the Agreement shall apply. Purchaser
acknowledges and agrees that the foregoing sentences in this paragraph shall survive the Closing
and shall not be merged with the documents to be delivered by Seller to Purchaser under this
Agreement at Closing.
In the event of any conflict or inconsistency between the terms hereof and the terms of
the Agreement, the terms of the Agreement shall govern and control. Without limitation of
the foregoing, all limitations on liability expressly set forth in the Agreement shall apply to
this Bill of Sale and the liabilities of Seller hereunder.
F-1
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the day and year first above
written.
Attest:
Theresa Bass, City Clerk
Approved as to form:
Ryan O. Hodge, Deputy City Attorney
SELLER:
CITY OF ANAHEIM
a municipal corporation and charter city
By:
Name:
Title:
F-2
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION
OF SERVICE CONTRACT
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT (this "Assignment")
is made and entered into as of June , 2024, by and between_CITY OF ANAHEIM,
a municipal corporation and charter city ("Assignor"), and HHC HA TRS, a Delaware
corporation ("Assignee').
Recitals
A. Assignor, as seller, and Assignee, as purchaser, entered into that certain Real
Estate Sale Agreement dated as of June , 2024 (the "Agreement"), pursuant to which
Assignor agreed to sell to Assignee, and Assignee agreed to acquire from Assignor, among
other things, Assignor's ownership interest in the certain airspace parcel of real estate
legally described on Exhibit A attached hereto and all of Assignor's right, title and interest
in the building and improvements located at such parcel (the "Pro e "), including
Seller's interest in certain real and personal property related thereto, in each case, subject to
the terms and conditions in the Agreement;
B. As part of the acquisition transaction contemplated by the Agreement,
Assignor has agreed to assign to Assignee, and Assignee has agreed to assume, Assignor's
interest in and under the management, maintenance and service contracts described on
Exhibit B attached hereto (the "Assumed Service Contract").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, and effective as of the date
hereof, Assignor hereby grants, transfers and assigns to Assignee the entire right, title and
interest of Assignor in and to the Assumed Service Contract, effective as of the date hereof.
2. Assumption. Effective as of the date hereof, Assignee hereby assumes the
covenants, agreements and obligations of Assignor under the Assumed Service Contract
which are applicable to the period and required to be performed from and after the date of
this Assignment, but not otherwise.
3. Attorneys' Fees. If either Assignee or Assignor, or their respective
successors or assigns, file suit to enforce the obligations of the other party under this
Assignment, the terms and conditions of 14.19 of the Agreement shall apply.
G-1
4. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of Assignor and Assignee and their respective successors and assigns.
5. Relationship to Agreement. In the event of any conflict or inconsistency
between the terms hereof and the terms of the Agreement, the terms of the Agreement
shall govern and control. Without limitation of the foregoing, all limitations on liability
expressly set forth in the Agreement shall apply to this Assignment and the liabilities
of Seller hereunder.
6. Counterparts. This Assignment may be signed in any number of
counterparts each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
[Signature Page Follows]
G-2
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
Attest:
Theresa Bass, City Clerk
Approved as to form:
Ryan O. Hodge, Deputy City Attorney
ASSIGNOR:
CITY OF ANAHEIM
a municipal corporation and charter city
By:
Name:
Title:
ASSIGNEE:
HHC HA TRS, INC.
a Delaware corporation
By:
Name:
Title:
G-3
F.XHTRIT H
FORM OF TERMINATION OF PARKING FACILITY DECLARATION!
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San Francisco, California 94111
Attention: Allison Kidd, Esq.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
TERMINATION OF DECLARATION
THIS TERMINATION OF DECLARATION (this "Termination") is dated as of June , 2024,
and is made by and between the City of Anaheim, a California municipal corporation (the "Off ),
HHC HA INVESTMENTS II, INC., a Delaware corporation (as successor in interest to Anaheim
Garage Corporation, a Texas Corporation, Anaheim Realty Corporation, a Texas corporation and
Anaheim Hotel Partnership, a Texas general partnership, "Hotel Owner").
WHEREAS, City and Hotel Owner's predecessor -in -interest are parties to that certain Declaration
Establishing Easements, Rights, Covenants, Conditions and Restrictions Regarding Access to and
Parking at the Anaheim Convention Center and Hotel Enclosed Parking Facility dated as of June
22, 1989 and recorded on June 27, 1989 in the Official Records of Orange County, State of
California, as Document No. 89-340401 (the "Declaration") pursuant to which the City and Hotel
Owner granted certain easements, rights, conditions, covenants and restrictions between the
properties which encumber Parcel 3 of Parcel Map No. 88-251, as per map filed in Book 233,
Pages 41 through 46, inclusive, of Parcel Maps in the Office of the County Recorder of Orange
County and Parcel 2 of the Parcel Map No. 88-251, as per map filed in Book 233, Pages 41 through
46, inclusive, of Parcel Maps in the Office of the County Recorder of Orange County (collectively
the "Properties"); and
WHEREAS, Hotel Owner and the City now desire to terminate the Declaration such that the
Declaration, and the easements, rights, conditions, covenants and restrictions set forth therein, shall
be of no further force and effect and shall no longer encumber the Parking Area.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the City and Hotel Owner hereby agree as follows:
'Under review by title company.
1. The Declaration is hereby terminated, relinquished and released effective as of the date of
recordation of this Termination.
2. The terms of this Termination shall bind and inure to the benefit of the heirs, executors,
administrators, nominees, designees, successors and assigns of the parties hereto.
3. To facilitate execution, this document may be executed in counterparts.
4. This Termination shall, in all respects, be governed, construed, applied and enforced in
accordance with the laws of the State of California.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Termination as of the date and year first
above written.
The City:
CITY OF ANAHEIM,
a municipal corporation and charter city
By: _
Name:
Title:
Attest:
Theresa Bass, City Clerk
Approved as to form:
Ryan O. Hodge, Deputy City Attorney
Signature Page - Termination of Parking Easement Agreement
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
On 2024, before me, , a 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
(Seal)
Signature Page - Termination of Parking Easement Agreement
HHC HA INVESTMENTS II, INC.,
a Delaware corporation
By:
Name:
Title:
By:_
Name:
Title:
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 )
On 2024, before me, , a 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 (Seal)
1:31
EXHIBIT I
OWNER'S AFFIDAVIT
[To be attached prior to the close of escrow]
EXHIBIT K
Map of Easement Area
[To be attached prior to the close of escrow]
CLERK'S CERTIFICATE
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, THERESA BASS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the
original Resolution No. 2024-053 adopted at a regular meeting provided by law, of the Anaheim
City Council held on the 111 day of June, 2024 by the following vote of the members thereof:
AYES: Mayor Aitken and Council Members Kurtz, Diaz, Leon, Rubalcava, Faessel and
Meeks
NOES: None
ABSTAIN: None
ABSENT: None
IN WITNESS WHEREOF, I have hereunto set my hand this 12t' day of June 2024.
CITY CLERk OF THE CITY OF ANAHEIM
(SEAL)