HomeMy WebLinkAboutSTAR BAGEL INC. - 2008
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This Acquisition Settlement Agreement ("ASA") is entered into on (;)??.Al/UI-.h ~ ' 20ce
between the City of Santa Ana, a charter city and municipal corporation duly organize and existing
under the Constitution and laws ofthe State of California ("City" or "Buyer"), and Keng Tong Taing
and Sing Lor Taing, individuals, and Star Bagel, Inc., a California 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."
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A-2008-052
ACQUISITION SETTLEMENT AGREEMENT
RECIT ALS
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 I (c)&(d), below, the total sum of TWO HUNDRED FOURTY THOUSAND
AND NO/tOO 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
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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 NOll 00 DOLLARS ($100,000.00).
d. City will process a second and final payment to Tenants in the amount of ONE
HUNDRED FOURTY THOUSAND AND NOll 00 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 l(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
NOll 00 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/I00 DOLLARS ($41,640.00).
2. Failure to Vacate and/or Demolish the existing building and other improvements from the
Property
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a. Tenants agree to vacate the Property not later than .~ 30, 2008 ("Vacate Date"). If
Tenants continue to possess the Property after the Vacate Date, Tenants agree to pay to
City a rental fee of TWO HUNDRED AND NOll 00 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 NOll 00 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.
c. 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 of8
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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 led), 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.
5. 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 may be modified only by a writing executed by
the Parties hereto.
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7. Partial Invalidity
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. Necessary 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 b)' this ASA and with respect to the meaning of
California Civil Code ~ 1542.
Acquisition Settlement Agreement
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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. Authoritv 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
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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
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By.. I. '
Sing or Tain-g- .
Date: ! -.:2 ;:; , 200'b
Date: / - .2} , 20<Y6
OWNERS:
For: The Taing Fami1~, dated May 21, 2001
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By: Cae ,2007 By: . . Date (- -2/:;>
Keng Tong Taing, Co-Trustee Si or T . g, Trustee
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CITY 072.'If/
By: (, ,(24'"..----
David N. Ream
City Manager
Date:
,2007
ATTEST:
By0
Patricia E. Healy
Clerk of the Council
Date: 3 - Dt,
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, 20)Y1
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
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By: " ~~/ II ':/
Jose ,Sandoval ..
Senior Assistant City Attorney
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Date:
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Acquisition Settlement Agreement
Page 6 of8
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:
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 I 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 comer 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 beginning. .
Excepting therefrom the Westerly 10.00 feet thereof.
Also excepting therefrom the Southerly 10 feet thereof.
Further excepting therefrom the Westerly 20 feet.
Also excepting therefrom a spandrel shaped parcel of land over the
Southwesterly comer of said land.
All 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
Page 8 of 10
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EXHIBIT "B"
ACQUIRED PROPERTY
PARCEL A
THA T 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 EASTERL Y OF THE CENTERLINE OF BRISTOL STREET,
WITH A LINE PARALLEL WITH AND 55.00 NORTHERLY OF THE CENTERLINE
OF MCFADDEN A VENUE (FORMERLY FAIR VIEW A VENUE), AS SAID
STREETS ARE SHOWN ON SAID NININGER TRACT;
THENCE, SOUTHWESTERLY ALONG THE BISECTOR OF SAID CENTERLINES,
S45040'16"W, 20.00 FEET; ,
THENCE, SOUTHEASTERLY AND PERPENDICULAR TO SAID BISECTOR,
S44019'44"E, 1.20 FEET TO THE POINT OF INTERSECTION WITH A LINE
PARALLEL WITH AND 40.00 FEET NORTHERLY OF SAID CENTERLINE OF
MCFADDEN A VENUE, SAID POINT OF INTERSECTION BEING THE
TRUE POINT OF BEGINNING;
THENCE, NORTHWESTERL Y ALONG SAID PERPENDICULAR LINE,
N44019'44"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, NORTHERL Y ALONG SAID PARALLEL LINE NOoo38'26"E,
135.60 FEET TO THE NORTHERLY LINE OF SAID SOUTHERLY HALF OF
LOT 12, INSTRUMENT NO. 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 ~. ~ ~f
RA YMON~~ PLS 83:4
EXPIRES 12/31/07
Acquisition Settlement Agreement
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EXHIBIT B
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PARCEL "A"
3,988 SQ FT
A.P. NO. 010-272-26