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HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) (12)A-2021-134 ORANGE COUNTY TRANSPORTATION AUTHORITY CONFIDENTIAL This document contains personal RIGHT OF WAY CONTRACT information, and pursuant to Civil Code Return ORIGINAL section 1798.21, it shall be kept confidential ((� executed copy to COTC, in order to protect against unauthorized Q PWIfi2) l 4Yln� M-30 disclosure. Vacant land, East side of Ritchey Street adjacent 103739-1 to SR-55, North of Warner Avenue, Santa Ana, 103739-2 CA 92705 103739-3 Property Address Parcel Nos. 403-072-02 09205630-920-CM M-CM8 Federal Project No. Escrow No. Title Order No. RIGHT-OF-WAY CONTRACT The City of Santa Ana, a Municipal Corporation (hereinafter, "Grantor"), owns the real property located on the east side of Ritchey Street, adjacent to SR-55, north of Warner Avenue, Santa Ana, CA in the County of Orange, Assessor Parcel Number 403-072-02 (the "Property"). Portions of the Property are needed for construction of the SR-55 Improvement Project, a public project designed to accommodate the widening of the SR-55, increase freeway capacity, improve traffic and interchange operations and enhance road safety (the "Project'). Document No. 103739-1 in the form of a Grant Deed (Exhibit " 1"), Document No. 103739-2 in the form of a Highway Easement Deed (Exhibit "2") and Document No. 103739-3 in the form of a Temporary Construction Easement Deed (Exhibit "Y) to the Orange County Transportation Authority ("OCTA"), covering the property interests as described in Exhibit "A" attached to Exhibit 1, Exhibit "B" attached to Exhibit 2 and Exhibits "Cl" and "C2" attached to Exhibit "3" (collectively, the "Property Interests") have been executed and delivered to Dan Akins, Right -of -Way Agent for Paragon Partners, Ltd., agent for OCTA. In consideration of which, and the other considerations hereinafter set forth, it is mutually agreed as follows: (A) The parties have herein set forth the whole of their agreement ("Agreement"). The performance of this Agreement constitutes the entire consideration and shall relieve OCTA of all further obligations or claims on this account, or on account of the location, grade or construction of the proposed public improvement. (B) OCTA requires said Property Interests described in Document Nos. 103739-1, 103739-2 and 103739-3 for the Project, a public use for which OCTA has the authority to exercise the power of eminent domain. Grantor is compelled to sell, and OCTA is compelled to acquire the Property Interests. (C) Both Grantor and OCTA recognize the expense, time, effort, and risk to both parties in determining the compensation for the Property Interests by eminent domain litigation. The compensation set forth herein for the Property Interests is in compromise and settlement, in lieu of such litigation. (D) It is agreed that OCTA shall open an escrow in accordance with this Agreement at an escrow company of OCTA's choice ("Escrow Agent"). This Agreement constitutes the joint escrow instructions of OCTA and Grantor, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to perform all acts reasonably necessary to close this escrow within sixty (60) days following the opening of escrow. 1477543.1 ORANGE COUNTY TRANSPORTATION AUTHORITY CONFIDENTIAL RIGHT OF WAY CONTRACT This document contains personal information, and pursuant to Civil Code section 1798.21, it shall be kept confidential in order to protect against unauthorized disclosure. 2. (A) OCTA shall pay the undersigned Grantor the sum of Zero Dollars and Zero Cents ($0.00) for the Property Interests conveyed by Document Nos. 103739-1, 103739-2 and 103739-3 in accordance with the "Cooperative Agreement No. C-0-2201 between Orange County Transportation Authority and City of Santa Ana for State Route 55 Improvement Project" in lieu for the project costs to acquire property rights in favor of Grantor, when title to said Property Interests vests in OCTA free and clear of all liens, deeds of trusts, encumbrances, assessments, easements and leases (recorded and/or unrecorded). (B) OCTA will pay all usual escrow and recording fees incurred in this transaction, and if title insurance is desired by OCTA, the premium charged therefore. Due to OCTA's status as a public agency, no recording fees will be payable (pursuant to Government Code Section 27383) and no documentary transfer tax will be payable (pursuant to Revenue & Taxation Code Section 11922). This transaction may be handled through an external escrow with Commonwealth Land Title Company or another selected escrow company to be determined. 3. FULL AND COMPLETE SETTLEMENT. Grantor hereby acknowledges that it is the sole and lawful owner of the Property and the compensation paid to Grantor through this Agreement constitutes the full and complete settlement of any and all claims against OCTA and the State of California, Department of Transportation (hereinafter, individually and collectively, "Releasee") by reason of the Project and/or acquisition of the Property Interests, including, but not limited to, any and all rights or claims that Grantor had, currently has or may in the future have under Article 1, Section 19 of the California Constitution, the Eminent Domain Law, or any other law or regulation, except as provided herein. Grantor, on behalf of itself and its successors and assigns, further knowingly and voluntarily waives and expressly releases and discharges Releasee and any and all of Releasee's employees, agents, officers, servants, representatives, contractors, attorneys, partner agencies and assigns, from liability in regard to any claims for the following: pre -condemnation damages, inverse condemnation, lost business goodwill, lost profits, lost rents, severance damages, mitigation damages, compensation for the construction and use of the Project in the manner proposed, damage to or loss of improvements pertaining to the realty, machinery, fixtures, inventory, equipment and/or personal property, interest, any right to repurchase, leaseback, or receive any financial gain from, the sale of any portion of the Property, any right to challenge the adoption of a resolution of necessity, any right to receive any notices pursuant to Code of Civil Procedure section 1245.235, any right to enforce any obligation pursuant to the Eminent Domain Law, any other rights conferred upon Grantor pursuant to the Eminent Domain Law, and claims for litigation expenses, attorney's fees, statutory interest and/or costs. Grantor further consents to the dismissal of any Eminent Domain proceeding that is filed pertaining to the Property Interests and further waives all attorney's fees, costs, claims to money on deposit, disbursements and expenses in connection with the dismissal of said proceeding. The parties intend that this Agreement will result in a full, complete and final resolution and settlement of any and all claims, causes of action or disputes which exist, or may exist, between them as to the acquisition, possession and/or use of the Property Interests, except as expressly provided herein. It is therefore understood that the waiver, under this Agreement, of any rights, damages, compensation or benefits to which Grantor is, or may be, entitled is intended to be full and complete. Accordingly, except as provided herein: 1477543.1 ORANGE COUNTY TRANSPORTATION AUTHORITY CONMENr1AL This document contains personal RIGHT OF WAY CONTRACT information, and pursuant to Civil Code section 1798.21, it shall be kept confidential in order to protect against unauthorized disclosure. (A) Pursuant to the releases set forth in this Agreement, Grantor specifically waives the provision of section 1542 of the Civil Code of the State of California which provides: "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." (B) Grantor represents and warrants that it understands the effect of this waiver of section 1542 and has had the opportunity to discuss the effect of this waiver with counsel of its choice. 5. Any monies payable under this Agreement up to and including the total amount of unpaid principal and interest on note(s) secured by mortgage(s) or deed(s) of trust, if any, and all other amounts due and payable in accordance with the terms and conditions of said deed(s) of trust or mortgage(s), shall upon demand(s) be made payable to the mortgagee(s) or beneficiary(ies) entitled thereunder; said mortgagee(s) or beneficiary(ies) are to furnish Grantor with good and sufficient receipt showing said monies credited against the indebtedness secured by said mortgage(s) or deed(s) of trust. Grantor represents and warrants that it is the fee simple owner of the Property and that it has the right to convey the Property Interests. Grantor will defend and indemnify OCTA, its successors and/or assigns against any and all claims, demands, causes of action filed against OCTA, its successors and/or assigns by someone claiming a legal interest in or right to the Property, or any portion thereof. Grantor represents and warrants that it will defend and indemnify OCTA, its successors and/or assigns in the amount of any due and unpaid liens and any penalties and delinquencies on the Property. Grantor represents and warrants that it has made no assignment of any interest in the Property. Grantor represents and warrants that there are no oral or written leases on all or any portion of the Property exceeding a period of one month. Grantor agrees to defend and indemnify and hold OCTA harmless and reimburse OCTA for any and all of its losses and expenses occasioned by reason of any lease of said Property held by any tenant of Grantor for a period exceeding one month. Grantor acknowledges that a general release or quitclaim deed will be required from any lessee that has a lease term exceeding one month. Said general release or quitclaim deeds are to be provided to Commonwealth Land Title Company, other selected escrow company, or OCTA by Grantor, prior to the close of escrow. The provisions of this paragraph shall apply to current leases on Grantor's Property as well as future leases, if any, that are entered into after the execution of this Agreement. 8. It is understood and agreed by and between the parties hereto that included in the amount payable under Clause 2(A) above is payment in full to compensate Grantor for the purchase of the following improvements: None. Grantor agrees that it is not entitled to compensation for any other improvements located within the areas of the Property Interests being purchased pursuant to this Agreement. Improvements located on the Property will be addressed by a separate agreement. 9. It is understood and agreed by and between the parties hereto that the following improvements within the areas of the Property Interests will be protected in place: None. It is further understood and agreed to by and between the parties hereto that the following improvements within the areas 1477543.1 , ORANGE COUNTY TRANSPORTATION AUTHORITY CONFIDENTIAL RIGHT OF WAY CONTRACT This document contains personal hrformation, and pursuant to Civil Code section 1798.21, it shall be kept confidential in order to protect against unauthorized disclosure. of the Property Interests will be relocated: the pressure reducing station, pursuant to separate agreement. 10. OCTA shall not take actual/physical possession of the Property Interests until thirty (30) day advance notice by OCTA or OCTA's contractor is given to Grantor of OCTA's taking actual/physical possession of the Property Interests. Prior to OCTA's actual/physical possession of the Property Interests, Grantor agrees to hold harmless, defend and indemnify OCTA its officers, directors, employees and agents against any and all claims including property damage or injuries resulting from the use of the areas within the Property Interests by Grantor and/or Grantor's guests, invitees, or any other person. OCTA shall not be deemed to have control of the areas within the Property Interests nor duty to maintain the areas within the Property Interests in a safe condition prior to the time OCTA or OCTA's contractor take actual/physical possession of the areas within the Property Interests. Grantor agrees to name OCTA as an additional insured under its current insurance policy. Grantor further agrees to notify OCTA in writing within thirty (30) days of any potential claim relating to the areas within the Property Interests prior to OCTA taking actual/physical possession of the areas within the Property Interests. 11. It is understood and agreed by and between the parties hereto that payment as provided in Clause 2(A) includes, but is not limited to, payment for any and all past, present, and/or future damages, which have accrued or may accrue to Grantor's remaining property by reason of its severance from the Property Interests conveyed herein and/or the construction and use of the proposed Project, including, but not limited to, any expense which Grantor may incur in restoring the utility of the remaining property. This release is not intended to extend to unanticipated physical damage caused by construction. 12. The Temporary Construction Easement ("TCE") shall be for a period of sixty (60) months ("TCE Term"). The TCE Term shall commence upon the date the amount of funds as specified in Clause 2(A) herein are deposited into the escrow controlling this transaction. Grantor shall be provided at least thirty (30) days written notice prior to commencement of work within the Temporary Construction Easement area. Grantor agrees to keep the Temporary Construction Easement area free and clear of all materials, shrubbery, crops, improvements and debris during the TCE Term. Grantor further agrees that cost of removal of any materials, shrubbery, crops, improvements or debris that are installed during the TCE Term shall be the sole responsibility of Grantor. 13. It is agreed and confirmed by the parties hereto that notwithstanding other provisions in this contract, the right of possession and use of the Property Interests by OCTA, including the right to remove and dispose of improvements within the Property Interests, shall commence on the date the amount of funds as specified in Clause 2(A) herein are deposited into the escrow controlling this transaction. The amount shown in Clause 2(A) herein includes, but is not limited to, full payment for such possession and use, including damages, if any, from said date. 14. Any notice either party may or is required to give the other shall be in writing and shall be either personally delivered or sent by registered or certified mail, return receipt requested. If by mail, service shall be deemed to have been received by such party at the time the notice is delivered to the following addresses: To Grantor: The City of Santa Ana 1477543.1 ORANGE COUNTY TRANSPORTATION AUTHORITY RIGHT OF WAY CONTRACT 20 Civic Center Plaza Santa Ana, CA 92701 Attn: Kenny Nguyen To OCTA: 550 South Main Street Orange, CA 92863-1584 Attn: Joe Gallardo CONFIDENTIAL This document contains personal infonnation, and pursuant to Civil Code section 1798.21, it shall be kept confidential in order to protect against unauthorized disclosure. 15. It is understood and agreed by and between the parties hereto that this Agreement inures to the benefit of, and is binding on, the parties, their respective heirs, personal representatives, subsequent purchasers, successors, and/or assignees. OCTA may freely assign any or all of its interests or rights under this Agreement. 16. Grantor represents and warrants that, other than organochlorine pesticides (OCPs) and arsenical herbicides, during the period of Grantor's ownership of the Property, there have been no disposals, releases or threatened releases of hazardous substances or hazardous wastes on, from, or under the Property. Grantor further represents and warrants that, other than organochlorine pesticides (OCPs) and arsenical herbicides, Grantor has no knowledge of any disposal, release, or threatened release of hazardous substances or hazardous wastes on, from, or under the Property which may have occurred prior to Grantor taking title to the Property. The acquisition price of the Property Interests being acquired in this transaction reflects the full and complete settlement of the Property Interests without the presence of contamination. If the Property Interests being acquired are found to be contaminated by the presence of hazardous waste which requires mitigation under Federal or State law, OCTA may elect to recover its clean-up costs from those who caused or contributed to the contamination including, but not limited to, Grantor. 17. It is understood and agreed that the fully executed Grant Deed, Highway Easement Deed and Temporary Construction Easement Deed may be recorded in the Recorder's Office for the County of Orange. 18. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter of this Agreement and may not be modified except by an instrument in writing signed by the party to be bound thereby. 19. If any term or provision of this Agreement shall be held to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect. 20. Each individual executing this Agreement on behalf of an entity represents and warrants that he or she has been authorized to do so by the entity on whose behalf he or she executes this Agreement and that said entity will thereby be obligated to perform the terms of this Agreement. 21. This Agreement may be executed in counterparts, including by facsimile and/or electronic mail, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 1477543.1 ORANGE COUNTY TRANSPORTATION AUTHORITY CONFIDENTIAL This document contains personal RIGHT OF WAY CONTRACT informtoation, and pursuant to Civil Code section 1798.21, it shall be kept confidential in order to protect against unauthorized disclosure. 22. OCTA reserves the right to cancel escrow and terminate this Agreement if at any time OCTA determines that the Property Interests are no longer needed for the Project. 23. This Agreement may be subject to approval by OCTA's governing Board of Directors. In Witness Whereof, the parties have executed this Agreement on the day and year set forth below. GRANTOR THE CITY OF SANTA ANA, A MUNICIPAL CORPORATION Attest: By Its: By Its: kri---- - >► Director, Capital Programs APPROVED AS TO FORM: By: lb e. T--r *W 06/28/21 James Donich DATE General Counsel Orange County Transportation Authority EICOMMENDED FOR APPROVAL: M�J- -"�G�N120z1 Nabil Saba, PE. DATE Executive Director Public Works Agency Daisy Gomez DATE City Clerk 1477543.1