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HomeMy WebLinkAbout25K - 1019 S BRISTOLREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2008 TITLE: PURCHASE AND RELOCATION AGREEMENTS FOR 1019 S. BRISTOL STREET (PROJECT 06-1500) e ' ~ ~/ CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15f Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached purchase agreement with the Taing Family Trust in the amount of $816,795 and execute an acquisition settlement agreement with Star Bagel Inc. for $240,000 subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On March 6, 2006 the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority to fund Bristol Street improvements from McFadden Avenue and Pine Street. Improvements include widening of the street from four lanes to six, construction of landscaping in the parkways and the median islands, traffic improvements, drainage structures, sound walls, and other amenities as outlined in the Specific Plan. To accommodate the widening, it is necessary to acquire a portion of the Taing property, located at 1019 S. Bristol Street, including the building occupied by Star Wok Express (Exhibit 1). Public Works has been negotiating with the property owner and tenant for the past six months, including a plan to rebuild a new replacement restaurant at their adjacent location. As a result of the proposed acquisition, relocate to their new facility, and the approximately 30 percent, due to savings and loss of business goodwill. the restaurant City's costs in the cost of will be able to are reduced by the acquisition 25K-1 Agreement with Taing Family Trust March 3, 2008 Page 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89-01 approved by City Council in 1990. Purchase Agreements FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (account no. 59-553-6611) . APPROVED AS TO FUNDS AND ACCOUNTS: ~a Ja s G. ss Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Mgmt. Services Agency 25K-2 MATCHLINE SEE BOTTOM RIGHT RAYMAR LEGEND SUBJECT PROPERTIES ® ACQUIRED PROPERTIES WALNUT ST. ~ AVENUE TOLLNER I MCFADDEN~A-VE-N~U (E~ I II WILLITS MATCHLINE SEE ABOVE LEFT FXHIRIT 1 SANTA ANA cmr couNG~ TITLE PURCHASE AND RELOCATION Pte, Ac~NDA DATE AGREEMENT FOR 1019 S. BRISTOL MARCH 3, Zoos STREET (PROJECT 06-1500) RBI[ ~OflKS R~NCT i ^~ G ~~1 25K-3 PURCHASE AND SALE AGREEMENT AND BILATERAL ESCROW INSTRUCTIONS FOR ACQUISITION OF REAL PROPERTY (Commercial) THIS AGREEMENT (hereinafter "PSA"), is entered into on 2007, between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and Keng Tong Taing and Sing Lor Taing, Trustees of the Taing Family Trust, dated May 21, 2001 (hereinafter "Sellers"), regardless of number or gender; Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Sellers agrees to sell to City, and City agrees to purchase from Sellers, all, or a portion thereof, of that certain real property (hereinafter referred to as "Said Real Property") located in the State of California, County of Orange, City of Santa Ana described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1019 South Bristol Street, Santa Ana; California) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance 6v Sellers. Sellers agree to convey- Said Real Property, to City,_ by Grant Deed, at the office of LandAmerica Commercial Services, located at 1920 Main Street, 12tH Floor, Irvine, California, within one hundred twenty (120) days from and after the date.on which the City has approved this PSA. 2. Title to be Conveyed. Sellers agree that, except as may hereinafter be otherwise expressly provided, Said Real Property shall be conveyed by Sellers to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title, except those exceptions shown in Paragraph 15 below. Sellers hereby warrant that the title to Said Real Property to be conveyed by Sellers to City shall be free and clear as provided above. Sellers further agree that acceptance by City of any deed to Said Real Property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full, clear, and marketable title hereinabove agreed to be conveyed by Sellers to City, nor of any right which might accrue to City because of the failure of Sellers to convey title as hereinabove provided. 3. Title Insurance. Sellers agree to deliver to City, concurrently with the conveyance of Page 1 of 10 25K-4 Sellers's Initials. Said Real Property to City, within the time and at the place hereinabove specified for the conveyance of Said Real Property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount EIGHT HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED NINETY FIVE AND No/100 DOLLARS ($816,795.00) insuring that title to Said Real Property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Sellers, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Sellers to convey title or to provide title insurance as required in this PSA. 4. Escrow. City agrees to open an escrow at the office of LandAmerica Commercial Services, located at 1920 Main Street, 12`h Floor, Irvine, California, ("Escrow Agent") within five (5) days from and after the date on which the City has approved this PSA. This PSA constitutes the joint escrow instructions of the City and the Sellers and a duplicate original of this PSA shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow is to close within 120 days of the City's execution of this PSA, but in any event, not later than January.30, 2008. The Escrow Agent hereby is empowered to act in accordance with the terms, conditions and provisions of this PSA, and shall carry out its duties as Escrow Agent hereunder upon indicating its written acceptance of this Section 4, and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, delivered to the City and to the Sellers within five (5) days after delivery of this PSA. City agrees to bear, and Escrow Agent is hereby authorized to charge to the City, the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of Said Real Property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to the California Code of Civil Procedure § 1265.240. The liability to the Escrow Agent under this PSA is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General Provisions of this PSA. 5. Property Taxes. Real property taxes, if any, on Said Real Property for the fiscal year in which Said Real Property is conveyed to City, as are unpaid at the time of said conveyance, shall be cleared and/or paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Sellers shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on Said Real Property for said fiscal year which have been paid prior to the date the deed conveying Said Real Property to City is recorded which is allocable to that portion of the fiscal Page 2 of 10 25K-5 Sellers's Initials year which begins on the date the deed conveying Said Real Property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on Said Real Property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Sellers before conveyance of Said Real Property to City. 6. Payment of Purchase Price. City agrees to pay to Sellers, and Sellers agree to accept from City, as and for the full purchase price for Said Real Property, including severance damages (if any) to which Sellers may be entitled, the total sum of EIGHT HUNDRED SIXTEEN THOUSAND SEVEN HUNDRED NINETY FIVE AND NO/100 DOLLARS ($816,795.00). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this PSA, and the Escrow Agent is hereby authorized to pay the same to Sellers upon and after: (a) Conveyance of Said Real Property by Sellers to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying Said Real Property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying Said Real Property to City. Sellers acknowledge and hereby agree that execution of this PSA shall constitute an assignment to Keng Tong Taing and Sing Lor Taing, individuals, and Star Bagel, Inc., a California corporation, dba Star Wok Express ("Tenants") of any and all right, title. and/or interest they may now have, or in the future be entitled to, individually or collectively, as compensation for furniture, fixtures and equipment, bonus value (if any), improvements pertaining to the realty, and/or bonus value or business goodwill (if any) pertaining to the purchase of Said Real Property by City. 7. Possession. Sellers agree to deliver to City, on the date the Deed conveying Said Real Property to City is recorded, quiet and peaceful possession of Said Real Property, in accordance with the terms and conditions of the ASA executed by the Parties, attached hereto as Exhibit «C» 8. Rental and Occunancy by Sellers. Sellers agree to execute a complete, current and correct statement of rentals (Sellers Estoppel) on a form furnished to Sellers by Buyer and to deliver same to Buyer within fifteen (15) days thereof with copies of any written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30-day month / 360-day year consistent with that statement, subject to approval of Buyer. Sellers hereby agree not to rent any units on the premises which are now vacant, or which may be vacated by the present occupants prior to close of escrow. Sellers agree that any and all tenant security deposits pertaining to the subject property collected by or that are in the possession of Sellers prior to the close of escrow shall be transferred to and become the property of Buyer during escrow. Page 3 of 10 Sellers's Initials 25K-6 Sellers hereby warrant that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (oral or written, recorded, or unrecorded) and Sellers agree to hold Buyer harmless from all liability from any such leases or agreements. Sellers also warrant that there are no oral or written leases on all or any portion of Said Real Property exceeding a period of one month. 9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of Sellers shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. _Heirs, Assigns, and Successors-in-Interest. This PSA, and all the terms, covenants and conditions contained herein, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Sellers hereby grant City, and its authorized agents, permission to enter upon Said Real Property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Compensation. Sellers acknowledge and agree that said purchase price is just compensation at fair market value for that portion of Said Real Property being purchased, including severance damages (if any) to which Sellers may be entitled. Sellers acknowledge and hereby agree that execution of this PSA shall constitute an assignment to Keng Tong Taing and Sing Lor Taing, individuals, and Star Bagel, Inc., a California corporation, dba Star Wok Express ("Tenants") of any and all right, title and/or interest they may now have, or in the future be entitled to, individually or collectively, as compensation for furniture, fixtures and equipment, bonus value (if any), improvements pertaining to the realty, and/or business goodwill (if any) pertaining to the purchase of Said Real Property by City. 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Sellers is: Keng Tong Taing 1019 South Bristol Street Santa Ana, California 92703 15. Exceptions. City agrees to accept title to Said Real Property subject to the following: NONE. 16. Entire Agreement. It is mutually agreed that the Parties hereto have set forth herein the Page 4 of 10 Sellers's Initials 25K-7 whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of Said Real Property by City. It is the intent of the Parties hereto that the Acquisition Settlement Agreement ("ASA"), attached hereto as Exhibit "C", shall constitute a separate agreement between the Parties. 17. Hazardous Waste. Neither Sellers nor, to the best of Sellers's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Sellers shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to. Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33.U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec . (42 U.S.C. 56903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et sue. (42 U.S.C. 59601). 18. Compliance with Environmental Laws. To the best of Sellers's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. Page 5 of 10 25K-8 Sellers's Initials 19. Indemnity. Sellers agree to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to Sellers's liability created prior to or up to the date this escrow shall close. Sellers shall not be responsible for acts or omissions to act after the close of this escrow. 20. Contingency. It is understood and agreed between the Parties hereto that the opening of escrow and the completion of this transaction is contingent upon the specific acceptance and approval of this PSA by City. The execution by City of this PSA, and the delivery of same to Escrow Agent, shall constitute said acceptance and approval. 21. Modification and Amendment. This PSA may not be modified or amended except in a writing signed by the Sellers and City. 22. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect, the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force. 23. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 24. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance by One Party on The Other. Each party has received independent legal advice from its attorney(s) with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 26. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost. Page 6 of 10 25K-9 Sellers's Initials 27. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective Parties to each of the terms of this PSA, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA. The Parties have executed this PSA as of the date written below. SELLERS: Date: ,2007 Keng Tong Taing, Trustee of the Taing Family Trust, dated May 21, 2001 Date: ~ , 2007 Sing Lor Taing, Trustee of the Taing Family Trust, dated May 21, 2001 APPROVED AS TO FORM: Joseph W. Fletcher City Attorney Date: D~ ~ "' , 2007 Assistant City Attorney CITY /BUYER: CITY OF SANTA ANA David N. Ream City Manager ATTEST: Patricia E. Healy Clerk of the Council Date: , 2007 Date: , 2007 Page 7 of l0 25K-1 0 Sellers's Initials EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED N THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: PARCEL A THAT PORTION OF THE SOUTH HALF OF LOT 12 OF THE NININGER TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP FILED IN BOOK 8, PAGE 33 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS SAID SOUTH HALF IS DESCRIBED IN A GRANT DEED RECORDED ON NOVEMBER 13, 2002 AS INSTRUMENT NO. 2002001009572, OFFICIAL RECORDS OF SAID COUNTY RECORDER, LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE POINT OF INTERSECTION OF A LINE PARALLEL WITH AND 95.00 FEET EASTERLY OF THE CENTERLINE OF BRISTOL STREET, WITH A LINE PARALLEL WITH AND 55.00 NORTHERLY OF THE CENTERLINE OF MCFADDEN AVENUE (FORMERLY FAIRVIEW AVENUE), AS SAID STREETS ARE SHOWN ON SAID NININGER TRACT; THENCE, SOUTHWESTERLY ALONG THE BISECTOR OF SAID CENTERLINES, S45°40'16"W, 20.00 FEET; THENCE, SOUTHEASTERLY AND PERPENDICULAR TO SAID BISECTOR, S44°19'44"E, 1.20 FEET TO THE POINT OF INTERSECTION WITH A LINE . PARALLEL WITH AND 40.00 FEET NORTHERLY OF SAID CENTERLINE OF MCFADDEN AVENUE, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE, NORTHWESTERLY ALONG SAID PERPENDICULAR LINE, N44°19'44"W,.2.41 FEET TO THE POINT OF INTERSECTION WITH A LINE PARALLEL WITH AND 80.00 FEET EASTERLY OF SAID CENTERLINE OF BRISTOL STREET; THENCE, NORTHERLY ALONG SAID PARALLEL LINE N00°38'26"E, 135.60 FEET TO THE NORTHERLY LINE OF SAID SOUTHERLY HALF OF LOT 12, INSTRUMENT N0.2002001009572, O.R. CONTAINING 3,988 SQUARE FEET; MORE OR LESS. ALL AS SHOWN ON EXHIBIT "B", ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. . SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY AND EASEMENTS OF RECORD, IF ANY. PREPARED BY ME, OR UNDER MY DIRECTION ON __ I~,~~~ RAYMOND . RIVERA, PLS 8324 EXPIRES 12/31/07 Page 8 of 10 25K-11 Sellers's Initials !-_ _ C_UB_BON STo NW'LY CORNER _ „~ LOT 12, M.M. 8/33 I '~' NE'LY CORNER i 10' N ~ LOT 12, 80' 0 ti M.M. 8/33 ~ O ° - ~ I I ~ 30 N i ' ~ N (~ p ~ v W O N P ~' o I N ~~ ~b 'Z lo' ~ o~ I ~ ` N ~~ ~ ° N89°04'19"W ° I I 30.00' - ° - ____~ ~ 20' ~ $~ DETAIL-NTS ~~ F----I N ~ . 95.00' P . ~ . C . i 30 ~ gyp. ~2 I ~- i ~ ~ I w ~'~•~pp~ ~ I ~ r--- ~ L1= Q~ I CD ~o~ppOg~ `i .J I 1 L2 ~' I N45'40'16"E i "' PARCEL p O~ cv O o „A„i ~ O N ~-~-~ \~ o l 0 20.00' M O W ~ ~--~ I ~ O I l!7 ~ ~ •~ _ z° ~ ~ ~ P.O.B. ° ~ L2, „ ~ ~ .~ ZO~ N ° I m ~- _ N 44'19 44 W W ~ ~ 2.41' o ~ I Ec g I MCFADDEN AVE. N Z N44'19'44"W } 0 ~ 3 o A 2.41' ~ = 89'56'20" I ~ ~' 6C P.O.B. sE'LY CORNER R = 25.00' N89°17' 54 "W - b LOT 12, M.M. 8/33 L = 39.24 ~ - 6.73' _ f T = 24.97' ~ b » » MCFADDEN ~ ~ AVE. ~, PARCEL A ° 3, 988 SQ FT (FORMERLY FAIRVIEW AVENUE) EXHIBIT B ;~~ SANTA ANA P~A1 A° P. N0. l~1(~-272-26 ~~ ~~ 25K-12 EXHIBIT "B" GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of Escrow Agent's general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which the transferring instrument(s) referred to herein are filed for recordation with the Office of the Orange County Recorder. All prorations shall be made on the basis of a 30-day month / 360-day year. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance, is hereby authorized by the Parties to this transaction. There shall be no prorations of any existing insurance policies in this escrow. Escrow Agent is to furnish a copy of these instructions, including any amendments thereto, closing statements, and/or any other documents deposited in this escrow, to the lender or lenders, the real estate broker or brokers, and/or the attorney or attorneys involved in this transaction upon request of such~lenders, brokers or attorneys. Should Escrow Agent, before or after close of escrow, receive or become aware of any conflicting demands or claims with respect to this escrow; or to the rights of any of the parties hereto; or about any money or property deposited herein, then Escrow Agent shall have the right to discontinue any or all further acts on its part until such conflict is resolved to its satisfaction, and Escrow Agent shall have the right to commence or defend any action or proceeding for the resolution of such conflict. The Parties to this escrow jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by Escrow Agent in connection with, or arising out of, this escrow including, but without limiting the generality of the foregoing, a suit in interpleader initiated by Escrow Agent. In the event Escrow Agent should file a suit in interpleader, Escrow Agent shall be fully released and discharged from all obligations imposed upon it by this escrow. If for any reason funds are retained or remain in escrow, Escrow Agent shall be entitled to deduct therefrom a reasonable monthly charge of not less than $10.00 per month as an administrative fee. Time is of the essence with regard to the execution of these general escrow instructions. If Escrow Agent is unable to comply with these instructions within the time specified herein, and if additional time as is required to make an examination of the official records, Escrow Agent shall return all documents, money, or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment or supplement to these instructions must be in writing, signed by all Parties to this transaction. These escrow instructions, and any amendments thereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Page 9 of ] 0 Sellers's Initials 25K-13 EXHIBIT "C" ACQUISITION SETTLEMENT AGREEMENT Page 10 of 10 25K-14 Sellers's Initials ACQUISITION SETTLEMENT AGREEMENT ? ~i~ Acquisition Settlement Agreement ("ASA") is entered into on , 2007 between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City" or "Buyer"), and Keng Tong Taing and Sing Lor Taing, individuals, and Star Bagel, Inc., a Califomia corporation, dba Star Wok Express ("Tenants"), and Keng Tong Taing and Sing Lor Taing, Trustees of the Taing Family Trust, dated May 21, 2001 ("Owners"). City, Tenants and Owners may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenants operate a business commonly known as the Star Bagel Inc., dba Star Wok Express, and are the occupants of the real property and improvements located at 1019 South Bristol Street, Santa Ana, California, more specifically described and depicted in Exhibit "A", Legal Description, attached hereto ("Property"). B. Keng Tong Taing and Sing Lor Taing, Trustees of the Taing Family Trust, dated May 21, 2001, are the fee Owners of the Property. Owners and City have negotiated a Purchase and Sale Agreement ("PSA") for a portion of the Property, as legally described and depicted in Exhibit "B" attached hereto ("Acquired Property"), which will result in the termination of Owner's and Tenant's rights, title and/or interests in the Acquired Property. C. The Property is located within the Area of the Bristol Street Widening Project from Pine Street to McFadden Avenue and City intends to acquire a portion of the Property for a public use. D: The Parties' rights and obligations with regard to the acquisition of the Property by City are in dispute. The Parties desire to establish their respective rights and obligations and to resolve any and all existing disputes with regard to the acquisition of the Property by City upon the terms and conditions as hereinafter set forth. `,Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions of this ASA, the Parties agree as follows: 1. Consideration a. Owners hereby agree to assign to Tenants, and Tenants agree to accept said assignment from Owners, any and all right, title and/or interest to the consideration referenced in this ASA to which Owners are or may be entitled. b. City agrees to pay Tenants, in accordance with the disbursement schedule referenced in section 1(c)&(d), below, the total sum of TWO HUNDRED FOURTY THOUSAND AND NO/100 DOLLARS ($240,000.00) as compensation for relocation assistance and/or other relocation benefits to which Tenants may be entitled, and any and all loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty, bonus value, severance damages, and any and all other damages to which Acquisition Settlement Agreement Page 1 of 8 25K-15 Tenants and/or Owners may be entitled as a result of City's purchase of the Acquired Property from Owners. c. Upon execution of this ASA, City will process an initial payment to Tenants in the amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00). d. City will process a second and final payment to Tenants in the amount of ONE HUNDRED FOURTY THOUSAND AND NO/100 DOLLARS ($140,000.00) upon confirmation that Tenants have demolished the building and improvements located on the Property. e. Tenant's receipt of full payment of the consideration referenced in section 1(b)(c)&(d), above, shall constitute full satisfaction of any and all of City's obligations to Owners and Tenants relating to City's acquisition from Owners of the Acquired Property. f. As a matter of record, the compensation paid in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal ONE HUNDRED NINETY EIGHT THOUDSAND THREE HUNDRED SIXTY AND NO/100 DOLLARS ($198,360.00); Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal FOURTY ONE THOUSAND SIX HUNDRED FOURTY AND NO/100 DOLLARS ($41,640.00). 2. Failure to Vacate and/or Demolish the existin~_buildin~ and other improvements from the ProPertX ~- ? ! <~ a. Tenants agree to vacate the Property not later than J~e3$;-2608 ("Vacate Date"). If Tenants continue to possess the Property after the Vacate Date, Tenants agree to pay t© City a rental fee of TWO HUNDRED AND NO/100 DOLLARS ($200.00) per day, which said rental fee shall be deducted as an offset from the final payment of ONE , HUNDRED FORTY THOUSAND AND NO/100 DOLLARS ($140,000.00) as described in 1(d), above. , b. If Tenants have not removed all of their moveable personal property, trade fixtures, furniture and equipment from the existing building(s) and other improvements to the Property by the Vacate Date, Tenants authorize City to remove said items at Tenant's sole cost and expense, which expense shall be deducted as an offset from the final payment as described in section 1(d), above. The Parties agree that any and all demolition costs paid for by City shall be deducted as an offset from the final payment as described in section 1(d) of this Agreement. d. Upon the Vacate Date, if Tenants have not demolished or removed the existing building(s) and other improvements from the Property, Tenants hereby authorize City, in City's sole and absolute discretion, and at Tenant's sole cost and expense, to remove said building(s) and Improvements. The Parties agree that any and all costs associated Acquisition Settlement Agreement Page 2 of 8 25K-16 with the demolition of the buildings and all other Improvements on the Property shall be paid by the Tenants as an offset from the final payment described in section 1(d), above. 3. Release a. Owners and Tenants, individually and collectively on behalf of themselves, their agents, assigns and related entities, agree to indemnify, fully release, acquit and discharge City, and the officers, directors, employees, attorneys, accountants, other professionals, insurers and agents of City (collectively "Agents") and all entities related to City, from any and all rights, claims, interests, demands, actions or causes of action which Owners and/or Tenants now have or may in the future have against City arising from the acquisition of the Property, including, but not limited to, trade fixtures, furniture and equipment, leasehold interests, and claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any). b. No Party, nor any Agents, nor any related entities, to this ASA have made any statement or representation to any other Party regarding any fact relied upon in entering into this ASA, and each party expressly states it does not rely upon any statement, representation or promise of any other Party or any Party's Agent or related entities in executing this ASA, except as is expressly stated in this ASA. Each Party to this ASA has made_ such investigation of the facts and law pertaining to this ASA, and of all other matters pertaining hereto, as it deems reasonable, necessary and/or appropriate, and has consulted with legal counsel concerning the matters contained herein. 4. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs.. Indemnity By Owners and Tenants Owners and Tenants shall individually and collectively indemnify, defend and hold harmless City from and against any and all claims, demands, liabilities, losses, judgments, expenses and attorney's fees resulting from the breach by Owners and/or Tenants of any provision of this ASA, or the falsity of any representation or warranty made by Owners and/or Tenants contained in this ASA. 6. Entire Agreement This ASA contains the entire Agreement of the Parties hereto pertaining to the subject matter discussed herein, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. This ASA maybe modified only by a writing executed by the Parties hereto. Acquisition Settlement Agreement Page 3 of 8 25K-17 7. PartialInvalidity In the event that any term, covenant, condition or provision of this ASA shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 8. Waiver The provisions of this ASA may be waived, altered, amended or repealed, in whole or in part, only upon the written consent of all Parties to this ASA. The waiver by one party of the duty of performance by the other Party of any provision in this ASA shall not invalidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this ASA. 9. Headings The headings, subheadings and numbering of the different sections of this ASA are inserted for convenience only and shall not be considered for any purpose in construing this ASA. 10. Governing Law The rights and obligations of the parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 11. Successors In Interest Subject to any restrictions against assignment contained herein, and to any legal limitations on the power of the signatories to bind non-signatories to this ASA, this ASA shall inure to the benefit of, and shall be binding upon, the assigns, successors-in-interest, personal representatives, executors, estate, heirs, legatees, Agents and related entities of each of the Parties hereto. 12. Necessar Acts Each Party to this ASA agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this ASA. 13. Advice Of Counsel Each Party hereto, by its execution of this ASA, represents to every other Party that it has reviewed each term of this ASA with its counsel and hereafter no Party shall deny the validity of this ASA on the ground that the party did not have advice of counsel. Each Party to this ASA has had the opportunity to receive independent legal advice with respect to the ,,`~,,,, advisability of entering into and being bound bx this ASA and with respect to the meaning of California Civil Code § 1542. Acquisition Settlement Agreement Page 4 of 8 25K-18 14. Parties Have Not Transferred Right Or Claims The Parties hereto each represent and warrant to the other Party that they have not assigned, transferred or sublet to any third party any of the rights, claims, causes of action or items to be released or transferred which they are obligated to transfer or to release as part of this ASA. 15. Authority To Execute This Agreement Each Party executing this ASA represents that it is authorized to execute this ASA. Each Party executing this ASA on behalf of an entity, other than an individual executing this ASA on his or her own behalf, represents that he or she is authorized to execute this ASA on behalf of said entity. 16. Construction Each Party has cooperated in the drafting and preparation of this ASA. In any construction or interpretation to be made of this ASA, or of any of its terms, conditions and/or provisions, the same shall not be construed against any party. 17. Notices All notices, requests, demands and other communications required or permitted to be given under this ASA shall be in writing and shall either be delivered in writing personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the Party at its address as set forth below, or at any other address that such Party may designate by written notice to the other Party: To City: City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Attention: Souri Amirani To Tenants: Star Bagel, Inc. dba Star Wok Express 1019 South Bristol Street Santa Ana, California 92703 To Owners: Taing Family Trust, dated May 21, 2001 Keng Tong Taing and Sing Lor Taing, Trustees 1019 South Bristol Street Santa Ana, California 92703 Acquisition Settlement Agreement Page 5 of 8 25K-19 20. Counterparts This ASA may be executed in counterparts, each of which shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. IN WITNESS WHEREOF, the Parties have executed this Acquisition Settlement Agreement as of the date first written above. TENANTS: Star Bagel, Inc. dba Star Wok Express By: Keng Tong Taing By: Sing Lor Taing CITY OF SANTA ANA: By: David N. Ream City Manager ATTEST: By: ` Patricia E. Healy Clerk of the council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney OWNERS: For: The Taing Family Trust, dated May 21, 2001 By: Date , 2007 By: Date , 2007 Keng Tong Taing, Co-Trustee Sing Lor Taing, Co-Trustee By: '~ Jose doval "- Se o Assistant City Attorney Date: ~' ~, ~~ , 2007 Acquisition Settlement Agreement Page 6 of 8 Date: , 2007 Date: , 2007 Date: , 2007 Date: , 2007 25K-20 EXHIBIT A LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: ASSESSOR'S PARCEL NUMBER: Acquisition Settlement Agreement Page 7 of 8 25K-21 EXHIBIT "B" ACQUIRED PROPERTY Acquisition Settlement Agreement Page 8 of 8 25K-22 EXHIBIT A LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORi~1IA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: All that certain real property situated in the County of Orange, State of California, described as follows: The South half of Lot 12 of the Nininger Tract, in the City of Santa Ana, County of Orange, State of California, as per map recorded in Book 8, Page 33 of Miscellaneous Maps, in the Office of the County Recorder of said County, more particularly described as follows: -- Beginning at the Southwesterly corner of said Lot 12; Running thence North, along the Westerly line of said Lot 147.5 feet to a point; thence in an Easterly direction to a point in the Easterly boundary of said Lot, said point being 147..095 feet North of the Southeast corner of said Lot; thence South along the Easterly line of said Lot, 147.095 feet to the Southeasterly comer of said Lot and thence in a Westerly direction 102.5 feet to the point of beglnning.~ Excepting therefrom the Westerly 10.00 feet thereof. Also excepting therefrom the Southerly 10 feet thereof. Further excepting therefrom the Wester{y 20 feet. Aiso excepting therefrom a spandrel shaped parcel of land over the Southwesterly corner of said land. Ali as more particularly described in a deed to the City of Santa Ana, recorded in Book 2100, Page 644 of Official Records. Assessor's Parcel Number: 010-272-26 Acquisition Settlement Agreement ~7~ ~L J EXHIBIT "B" ACQUIRED PROPERTY PARCEL A THAT PORTION OF THE SOUTH HALF OF LOT 12 OF THE NININGER TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP FILED IN BOOK 8, PAGE 33 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS SAID SOUTH HALF IS DESCRIBED IN A GRANT DEED RECORDED ON NOVEMBER 13, 2002 AS INSTRUMENT N0.2002001009572, OFFICIAL RECORDS OF SAID COUNTY RECORDER, LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE POINT OF INTERSECTION OF A LINE PARALLEL WITH AND 95.00 FEET EASTERLY OF THE CENTERLINE OF BRISTOL STREET, WITH A LINE PARALLEL WITH AND 55.00 NORTHERLY OF THE CENTERLINE OF MCFADDEN AVENUE (FORMERLY FAIRVIEW AVENUE), AS SAID STREETS ARE SHOWN ON SAID NININGER TRACT; THENCE, SOUTHWESTERLY ALONG THE BISECTOR OF SAID CENTERLINES, S45°40'16"W, 20.00 FEET; - THENCE, SOUTHEASTERLY AND PERPENDICULAR TO SAID BISECTOR, S44°19'44"E, 1.20 FEET TO THE POINT OF INTERSECTION WITH A LINE PARALLEL WITH AND 40.00 FEET NORTHERLY OF SAID CENTERLINE OF MCFADDEN AVENUE, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE, NORTHWESTERLY ALONG SAID PERPENDICULAR LINE, N44°19'44"W, 2.41 FEET TO THE POINT OF INTERSECTION WITH A LINE PARALLEL WITH AND 80.00 FEET EASTERLY OF SAID CENTERLINE OF BRISTOL STREET; THENCE, NORTHERLY ALONG SAID PARALLEL LINE NOb°38'26"E, 135.60 FEET TO THE NORTHERLY LINE OF SAID SOUTHERLY HALF OF LOT 12, INSTRUMENT N0.2002001009572, O.R. '. CONTt~INING 3,988 SQUARE FEET, MORE OR LESS. ALL AS SHOWN ON EXHIBIT "B", ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-WAY AND EASEMENTS OF RECORD, IF ANY. PREPARED BY ME, OR UNDER MY DIRECTION ON ~. RAYMOND J. RIVERA, PLS 8324 EXPIRES I2/31/07 ~. Acquisition Settlement Agreement Page 8 of 8 25K-24 '~ _ C_U B_B O_N_ NW'LY CORNER LOT 12, M.M. 8/33 STo - - -~- '~' NE'LY CORNER i 10' ~ N LOT 12, 80~ p r- M.M. 8/33 O N ~ ~ O - I ' I I - ---1- - O ---I I ~' (N. T. S. ) ~ ~ ti W °N P o, iN I I o I ~~ W - - ----L~- - - -I l,Q~ 1~ 0 o I I I in ° ~`V ~Z 10' ` N ~\ ~p ~ N ` ~ ~ p c.n ~ - ~ ~ N89°04'19"W ~ I ~-\Y I 30.00' - o - --~ ~ 20' ~- 80' C1~ ~ . ~, N ~ _ M ~ 30' ~ •- ~Ogh'l`I' I ~Y-~ I W ~~~ ~\CG N I w I "' PARCEL p~~~ ~~O> cv „A „/ 0 2 ON I. DETAIL-NTS 95.00' P.Q.C. s ~"'^ ~ J ~ L2 ~~ I N 45'40' 16"E • ~ ~ \ I o 20.00' ~ \ Z N 0 `m' ~ f .O.CJ. ~ r n w o --{ 20' I ~_ _ N 44'19 44 W M ~ ~ 2.41' o ~ I' ~ S I MCFADDEN AVE. c.~ N EC Z N44'19'44"W I J O i ~ o A 2.41' BC P.Q.B. 5E'LY CORNER ~ = 89'56'20' N -' R = 25.00' I N89°17'56"73, '- _ b LOT 12, M.M. 8/33 L = 39.24' i - _ _ T = 24.97' ( ~ o PARCEL "A" o ~ o MCFADDEN ~, AUE. ~ 3,988 SQ FT (FORMERLY FAIRVIEW AVENUE) EXHIBIT B SANTA ANA ., ~ ~ ~ ~ ~1 A° P° N0. (~1 J-272-26 '~~~__~-~ ^~, ~.~ 25K-25 25K-26