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HomeMy WebLinkAbout25Q - ACQUISITION SETTLEMENT 1007-1011 S BRISTOLREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JUNE a, coos TITLE: ACQIII3ITION SETTLEMENT AGREBMSNT3 FOR BII3INE33S3 AT 1007-1011.3. BRISTOL STREET (PROJBCT 06-1500) APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER CITY RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached acquisition settlement agreements, subject to non-substantive changes approved by the City Manager and City Attorney, with the following: • Martha's Market for $114,466 • Gilberto's Restaurant for $272,000 • Gamez Insurance and Income Tax for $96,696 • Infinity Cellular & Paging for $105,407 • Rocela`s Beauty Salon for $103,242 DI3CII3SION 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, a portion of the property at 1007-1011 S. Bristol Street was acquired on December 3, 2007 (Exhibit 1). Included in the acquisition is the building which houses the above businesses. Public Works has negotiated a plan with the property owner and tenants to build a new replacement retail facility on the remainder of the parcel. This settlement agreement will allow the businesses to relocate to their new facility, and the City's costs will be reduced by approximately 30 25Q-1 Acquisition Settlement Agreements For 1007-1011 S. Bristol June 2, 2008 Page 2 percent, due to savings in the cost of the acquisition and a minimal loss of business goodwill. The construction of the new retail building will not interfere with the street widening project and will start early 2009. gNVIRONMI3NTAL 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. FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (account no. 59-553-6611). L James G. Ross Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: /„~Francisco Gutierrez FB ~D Executive Director Finance & Mgmt. Services Agency 25Q-2 MATCHUNE SEE BOTTOM RIGt-ff LEGEND SUBJECT PROPERTIES ACQUIRED PROPERTIES i MCFADDEN AVENUE MATCHLINE SEE ABOVE LEFT EXHIBIT 1 SANTA ANA ~~TM ~~"- TITLE: PURCHASE AGREEMENT FOR P~1 AGENDA DATE 1007 AND 1011 S. BRISTOL STREET ~, JUNE z Zoos (PROJECT 06-1500) peat pass ~awcr 25Q-3 25Q-4 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 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"), and Martha's Market ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Martha's Market, and is the occupant of the real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. B. Aurora Angel ("Landlord") is the fee owner of 1007 to 1011 South Bristol Street, Santa Ana, California ("Property"). Owner 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 Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth. E. Landlord will develop a replacement retail structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04. Construction of Replacement Structure is expected to be completed on or about, December 31, 2008. Tenant has been offered the opportunity to lease a unit within the Replacement Structure and Tenant desires to accept this offer, pending final lease negotiations between Tenant and Landlord. F. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant understands that they are under no obligation to enter into this ASA and move into the Replacement Structure. Tenant understands and acknowledges that they may choose to relocate from the Property to an alternate site. Acquisition Settlement Agreement Page 1 of 8 25Q-5 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. City agrees to pay Tenant, in accordance with the disbursement schedule referenced in section 1(c)(d)(e)&(f), below, the total sum of ONE HUNDRED FOURTEEN THOUSAND, FOUR HUNDRED SIXTY SIX AND NO/100 DOLLARS ($114,466.00) as compensation for relocation assistance and/or other relocation benefits to which Tenant 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 Tenants may be entitled as a result of City's acquisition of the Acquired Property for the Project. b. Tenant hereby agrees to assign certain payments under this ASA to Landlord to be used exclusively for construction and installation of certain tenant improvements and trade fixtures within Tenant's individual unit within Replacement Structure. The total amount of this assignment is SEVENTY TWO THOUSAND, NINE HUNDRED FIFTY DOLLARS AND NO/100 ($72,950.00). In exchange for such assignment, Landlord will be obligated to provide the following improvements within Tenant's Replacement Structure space: HVAC, lights, T Bar ceiling, insulation at ceiling, standard number of electrical outlets, flooring, one bathroom that meets Americans with Disabilities Act standards, phone jacks in number sufficient to operate Tenant's current equipment, finish painted interior walls, concrete cutting and patching, plumbing for hand and floor sink, interior framing and drywall, interior doors, and soft costs such as contingency, builder overhead and profit, zoning and associated permit fees and architectural and engineering fees. Tenant is responsible for payment for the move of the personal property, disconnection, move, reconnection and reinstallation of all fixtures and equipment, including walk in cooler, reinstallation of racks and displays, installation of telephone system, any electrical requirements in addition to standard electrical service, flooring and base, roof support and repair work for walk in cooler and compressor, and any associated permit fees c. Upon execution of this ASA and an executed lease between Tenant and Landlord for Replacement Structure, City will process an initial payment to Tenant in the amount of TEN THOUSAND, THREE HUNDRED SEVENTY NINE DOLLARS AND 00/100 ($10,379.00) and to Landlord in the amount of EIGHTEEN THOUSAND TWO HUNDRED THIl2TY SEVEN DOLLARS AND 50/100 ($18,237.50). d. Upon notification and verification that architectural plans for the Replacement Structure have been approved by the City Building Department, City will process a second payment to Tenant in the amount of TEN THOUSAND, THREE HUNDRED SEVENTY NINE DOLLARS AND 00/100 ($10,379.00) and to Acquisition Settlement Agreement Page 2 of 8 25Q-6 Landlord in the amount of EIGHTEEN THOUSAND TWO HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($18,237.50). e. Upon completion of physical improvements to Tenant's unit within the Replacement Structure. City will process a third payment to Tenant in the amount of TEN THOUSAND, THREE HUNDRED SEVENTY NINE DOLLARS AND 00/100 ($10,379.00) and to Landlord in the amount of EIGHTEEN THOUSAND TWO HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($18,237.50). f. City to process a final payment to Tenant in the amount of TEN THOUSAND, THREE HUNDRED SEVENTY NINE DOLLARS AND 00/100 ($10,379.00) once Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to the Property to the City or to City's agents, or Landlord, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. Once Tenant has met all four requirements listed above, City will process a final payment to Landlord in the amount of EIGHTEEN THOUSAND TWO HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($18,237.50). g. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. h. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal $99,466. Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal $15,000. i. In the event that the lease between Tenant and Landlord for the Replacement Structure is terminated, or becomes null and void prior to the final payment in accordance with this ASA, any remaining unpaid payments that were assigned to Landlord will revert to Tenant and no further payments will be made to Landlord under this ASA. Tenant fully releases any and all claims against payments already made to Landlord, which will not be returned to Tenant. Additionally, all future scheduled payments to Tenant will cease until Tenant vacates the Property and meets vacancy criteria as stated in section (f), above, at which time City will make all remaining payments to Tenant. Tenant is required to vacate the Property within thirty (30) days from the date the Replacement Structure lease is terminated or voided, excepting that tenant must vacate the Property no later than December 3l, 2008. Acquisition Settlement Agreement Page 3 of 8 25Q-7 2. Release a. Tenant, on behalf of itself, its 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 Tenant now has or may in the future have against City arising from the acquisition of the Acquired Property, including, but not limited to, trade fixtures, furniture and equipment, leasehold interests, and claims for toss of business goodwill, bonus value (if any) and/or severance damages (if any), including claims from vendors, independent contractors, subtenants now and forever. 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. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity By Tenants Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. 5. 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. 6. 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. Acquisition Settlement Agreement Page 4 of 8 25Q-8 7. 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. 8. 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. 9. Governin 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. 10. Successors [n 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. 11. Necessarv 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. 12. 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 by this ASA and with respect to the meaning of California Civil Code § 1542. 13. 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. Acquisition Settlement Agreement Page 5 of 8 25Q-9 14. 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. 15. 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. 16. 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 Tenant: Martha's Market 1007 S. Bristol St. Unit A Santa Ana, CA 92703 Attn: Benjamin Zecua To Tenant: Martha's Market Post-move 1007 S. Bristol St. Unit A Santa Ana, CA 92703 Attn: Benjamin Zecua Acquisition Settlement Agreement Page 6 of 8 25Q-10 17. 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. TENANT: Martha's Market By: Date 2008 Benjamin Zecua OWNER: By: Date 2008 Aurora Angel CITY OF SANTA ANA: By: Date: 2008 David N. Ream City Manager ATTEST: By: Date: , 2008 Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Jose Sandoval Senior Assistant City Attorney Date: , 2008 Acquisition Settlement Agreement Page 7 of 8 25Q-11 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: Parcel 1: That portion 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. Beginning at a point on the West line of said Lot, 147.5 feet North of the Southwest corner thereof; thence continuing along said West line North 49.18 feet; thence Easterly to a point on the East line of said Lot 195.87 feet North of the Southeast corner thereof; thence South 48.775 feet along said East line; thence Westerly to the point of beginning Except the West 10 feet thereof. Parcel 2: The South 49.16 feet of the North 98.32 feet 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. Except therefrom the West 10 feet thereof, granted to the City of Santa Ana, by deed recorded in Book 2192, Page 384, Official Records. Assessor's Parcel Number: 010-272-24; 010-272-25 Acquisition Settlement Agreement Page 8 of 8 25Q-12 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 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"), and Aurora Angel, Gilbert Quintero and Emilia Quintero dba/Gilberto's Mexican Restaurant ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Gilberto's Mexican Restaurant, and is the occupant ofthe real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. B. Aurora Angel ("Owner") is the fee owner of 1007 to 1011 South Bristol Street, Santa Ana, California ("Property"). Owner 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 Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth. E. Owner will develop a replacement retail structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101- 272-04. Construction of Replacement Structure is expected to be completed on or about, December 31, 2008. Tenant has been offered the opportunity to lease a unit within the Replacement Structure and Tenant desires to accept this offer, pending final lease negotiations between Tenant and Owner. F. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant understands that they are under no obligation to enter into this ASA and move into the Replacement Structure. Tenant understands and acknowledges that they may choose to relocate from the Property to an alternate site. Acquisition Settlement Agreement Page 1 of 8 25Q-13 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: Consideration a. City agrees to pay Tenant, in accordance with the disbursement schedule referenced in section 1(b)&(c), below, the total sum of TWO HUNDRED SEVENTY TWO THOUSAND AND NO/100 DOLLARS ($272,000.00) as compensation for relocation assistance and/or other relocation benefits to which Tenant 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 Tenant may be entitled as a result of City's acquisition of the Acquired Property for the Project. b. Upon execution of this ASA, City will process an initial payment to Tenants in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00). Payment will be made directly to Tenant. c. City will process a second and final payment to Tenants in the amount of SEVENTY TWO THOUSAND AND NO/100 DOLLARS ($72,000.00) upon satisfactory evidence to City that the following conditions have been satisfied: Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to the City or to its agents, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. Each payment referenced in this paragraph shall be subject to offsets as described in section 2(a) below. Payment will be made directly to Aurora Angel. d. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. e. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal $200,000. Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal $72,000. 2. Failure to Vacate the existing building and other improvements from the PropertX a. Tenant agrees to vacate the Property not later than December 31, 2008 ("Vacate Date"). Tenant shall be jointly and severally liable for payment to City of a rental fee of TWO HUNDRED AND NO/100 DOLLARS ($200.00) for each and every day Tenants remain in possession of the Property after the Vacate Date, which rental fee shall be proportionally deducted as an offset from the final payment to Tenants as described in section 1(c) above. Acquisition Settlement Agreement Page 2 of 8 25Q-14 Release a. Tenant, on behalf of itself, its 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 Tenant now has or may in the future have against City arising from the acquisition of the Acquired 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), including claims from vendors, independent contractors, subtenants now and forever. 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 Tenants Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant 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. 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. Acquisition Settlement Agreement Page 3 of 8 25Q-15 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. 1 1. 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. Necessa , 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 by this ASA and with respect to the meaning of California Civil Code Section 1542. 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. Acquisition Settlement Agreement Page 4 of 8 25Q-16 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 Tenant: Gilberto's Mexican Restaurant 1007 S. Bristol St. Unit B Santa Ana, CA 92703 Attn: Aurora Angel, Gilbert Quintero, Emilia Quintero To Tenant: Gilberto's Mexican Restaurant Post-move 1007 S. Bristol St. Unit B Santa Ana, CA 92703 Attn: Aurora Angel, Gilbert Quintero, Emilia Quintero Acquisition Settlement Agreement Page 5 of 8 25Q-17 18. Countet~arts 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. TENANT: Gilberto's Mexican Restaurant By: Date 2008 Aurora Angel By: Date 2008 Gilbert Quintero By: Date 2008 Emilia Quintero OWNER: By: Date 2008 Aurora Angel CITY OF SANTA ANA: By: Date: 2008 David N. Ream City Manager ATTEST: By: Date: , 2008 Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Jose Sandoval Senior Assistant City Attorney Date: , 2008 Acquisition Settlement Agreement Page 6 of 8 25Q-18 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: Parcel 1: That portion 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. Beginning at a point on the West line of said Lot, 147.5 feet North of the Southwest corner thereof; thence continuing along said West line North 49.18 feet; thence Easterly to a point on the East line of said Lot 195.87 feet North of the Southeast corner thereof; thence South 48.775 feet along said East line; thence Westerly to the point of beginning Except the West 10 feet thereof. Parcel 2: The South 49.16 feet of the North 98.32 feet 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. Except therefrom the West 10 feet thereof, granted to the City of Santa Ana, by deed recorded in Book 2192, Page 384, Official Records. Assessor's Parcel Number: 010-272-24; 010-272-25 Acquisition Settlement Agreement Page 7 of 8 25Q-19 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 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"), and Gamez Insurance and Income Tax ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Gamez Insurance and Income Tax, and is the occupant of the real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. B. Aurora Angel ("Landlord") is the fee owner of 1007 to 1011 South Bristol Street, Santa Ana, California ("Property"). Owner 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 Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth. E. Landlord will develop a replacement retail structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04. Construction of Replacement Structure is expected to be completed on or about, December 31, 2008. Tenant has been offered the opportunity to lease a unit within the Replacement Structure and Tenant desires to accept this offer, pending final lease negotiations between Tenant and Landlord. F. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant understands that they are under no obligation to enter into this ASA and move into the Replacement Structure. Tenant understands and acknowledges that they may choose to relocate from the Property to an alternate site. Acquisition Settlement Agreement Page 1 of 8 25Q-20 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: Consideration a. City agrees to pay Tenant, in accordance with the disbursement schedule referenced in section 1(c}(d)(e)&(f), below, the total sum of NINETY SIX THOUSAND, SIX HUNDRED NINETY SIX AND NO/100 DOLLARS ($96,696.00) as compensation for relocation assistance and/or other relocation benefits to which Tenant 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 Tenants may be entitled as a result of City's acquisition of the Acquired Property for the Project. b. Tenant hereby agrees to assign certain payments under this ASA to Landlord to be used exclusively for construction and installation of certain tenant improvements and trade fixtures within Tenant's individual unit within Replacement Structure. The total amount of this assignment is SIXTY NINE THOUSAND, SEVEN HUNDRED FIFTY DOLLARS AND NO/100 ($69,750.00). In exchange for such assignment, Landlord will be obligated to provide the following improvements within Tenant's Replacement Structure space: HVAC, lights, T Bar ceiling, insulation at ceiling, standard number of electrical outlets, carpet and base, one bathroom that meets Americans with Disabilities Act standards, phone jacks in number sufficient to operate Tenant's current equipment, finish painted interior walls, interior framing and drywall, interior doors, and soft costs such as contingency, builder overhead and profit, zoning and associated permit fees and architectural and engineering fees. Tenant is responsible for payment for the move of the personal property, disconnection, move, reconnection and reinstallation of all fixtures and equipment, installation of telephone system, any electrical requirements in addition to standard electrical service, and any associated permit fees c. Upon execution of this ASA and an executed lease between Tenant and Landlord for Replacement Structure, City will process an initial payment to Tenant in the amount of SIX THOUSAND SEVEN HUNDRED THIRTY SIX DOLLARS AND 50/100 ($6,736.50) and to Landlord in the amount of SEVENTEEN THOUSAND FOUR HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($17,437.50). d. Upon notification and verification that architectural plans for the Replacement Structure have been approved by the City Building Department, City will process a second payment to Tenant in the amount of SIX THOUSAND SEVEN HUNDRED THIRTY SIX DOLLARS AND 50/100 ($6,736.50) and to Landlord in the amount of SEVENTEEN THOUSAND FOUR HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($17,437.50). Acquisition Settlement Agreement Page 2 of 8 25Q-21 Upon completion of physical improvements to Tenant's unit within the Replacement Structure. City will process a third payment to Tenant in the amount of SIX THOUSAND SEVEN HUNDRED THIRTY SIX DOLLARS AND 50/100 ($6,736.50) and to Landlord in the amount of SEVENTEEN THOUSAND FOUR HUNDRED THIItTY SEVEN DOLLARS AND 50/100 ($17,437.50). City to process a final payment to Tenant in the amount of SIX THOUSAND SEVEN HUNDRED THIRTY SIX DOLLARS AND 50/100 ($6,736.50) once Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to the Property to the City or to City's agents, or Landlord, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. Once Tenant has met all four requirements listed above, City will process a ftnal payment to Landlord in the amount of SEVENTEEN THOUSAND FOUR HUNDRED THIRTY SEVEN DOLLARS AND 50/100 ($17,437.50). g. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. h. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal $76,696. Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal $20,000. i. In the event that the lease between Tenant and Landlord for the Replacement Structure is terminated, or becomes null and void prior to the final payment in accordance with this ASA, any remaining unpaid payments that were assigned to Landlord will revert to Tenant and no further payments will be made to Landlord under this ASA. Tenant fully releases any and all claims against payments already made to Landlord, which will not be returned to Tenant. Additionally, all future scheduled payments to Tenant will cease until Tenant vacates the Property and meets vacancy criteria as stated in section (f), above, at which time City will make all remaining payments to Tenant. Tenant is required to vacate the Property within thirty (30) days from the date the Replacement Structure lease is terminated or voided, excepting that tenant must vacate the Property no later than December 31, 2008. 2. Release a. Tenant, on behalf of itself, its 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, Acquisition Settlement Agreement Page 3 of 8 25Q-22 claims, interests, demands, actions or causes of action which Tenant now has or may in the future have against City arising from the acquisition of the Acquired 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), including claims from vendors, independent contractors, subtenants now and forever. 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. Attorne 's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity Tenants Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. 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. 6. Partiallnvalidity 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. 7. 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 Acquisition Settlement Agreement Page 4 of 8 25Q-23 available to the non-breaching Party of this ASA. 8. 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. 9. Governin 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. 10. 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. 11. 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. 12. 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 by this ASA and with respect to the meaning of California Civil Code § 1542. 13. 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. 14. 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 Acquisition Settlement Agreement Page 5 of 8 25Q-24 on behalf of said entity. l5. 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. 16. 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 Tenant: Gamez Insurance and Income Tax 1011 S. Bristol St. Unit A Santa Ana, CA 92703 Attn: Rosalio Uriarte To Tenant: Gamez Insurance and Income Tax Post-move 1011 S. Bristol St. Unit A Santa Ana, CA 92703 Attn: Rosalio Uriarte Acquisition Settlement Agreement Page 6 of 8 25Q-25 17. Countemarts 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. TENANT: Gamez Insurance and Income Tax BY~ Date 2008 Rosalio Uriarte OWNER: BY~ Date 2008 Aurora Angel CITY OF SANTA ANA: BY~ Date: 2008 David N. Ream City Manager ATTEST: BY~ Date: , 2008 Patricia E. Healy Clerk ofthe Council APPROVED AS TO FORM: Jose Sandoval Senior Assistant City Attorney Date: _ , 2008 Acquisition Settlement Agreement Page 7 of 8 25Q-26 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: Parcel 1: That portion 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. Beginning at a point on the West line of said Lot, 147.5 feet North of the Southwest corner thereof; thence continuing along said West line North 49.18 feet; thence Easterly to a point on the East line of said Lot 195.87 feet North of the Southeast corner thereof; thence South 48.775 feet along said East line; thence Westerly to the point of beginning Except the West 10 feet thereof. Parcel 2: The South 49.16 feet of the North 98.32 feet 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. Except therefrom the West 10 feet thereof, granted to the City of Santa Ana, by deed recorded in Book 2192, Page 384, Official Records. Assessor's Parcel Number: 010-272-24; 010-272-25 Acquisition Settlement Agreement Page 8 of 8 25Q-27 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 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"), and Alex Ker dba Infinity Cellular & Paging ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Infinity Cellular & Paging, and is the occupant of the real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. B. Aurora Angel ("Landlord") is the fee owner of 1007 to 1011 South Bristol Street, Santa Ana, California ("Property"). Owner 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 Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth. E. Landlord will develop a replacement retail structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04. Construction of Replacement Structure is expected to be completed on or about, December 31, 2008. Tenant has been offered the opportunity to lease a unit within the Replacement Structure and Tenant desires to accept this offer, pending final lease negotiations between Tenant and Landlord. F. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant understands that they are under no obligation to enter into this ASA and move into the Replacement Structure. Tenant understands and acknowledges that they may choose to relocate from the Property to an alternate site. Acquisition Settlement Agreement Page 1 of 8 25Q-28 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: Consideration a. City agrees to pay Tenant, in accordance with the disbursement schedule referenced in section 1(c)(d)(e)&(f), below, the total sum of ONE HUNDRED FIVE THOUSAND, FOUR HUNDRED SEVEN AND NO/100 DOLLARS ($105,407.00) as compensation for relocation assistance and/or other relocation benefits to which Tenant 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 Tenants may be entitled as a result of City's acquisition of the Acquired Property for the Project. b. Tenant hereby agrees to assign certain payments under this ASA to Landlord to be used exclusively for construction and installation of certain tenant improvements and trade fixtures within Tenant's individual unit within Replacement Structure. The total amount of this assignment is SIXTY FOUR THOUSAND, TWO HUNDRED FIFTY DOLLARS AND NO/100 ($64,250.00). In exchange for such assignment, Landlord will be obligated to provide the following improvements within Tenant's Replacement Structure space: HVAC, lights, T Bar ceiling, insulation at ceiling, standard number of electrical outlets, flooring, one bathroom that meets Americans with Disabilities Act standards, phone jacks in number sufficient to operate Tenant's current equipment, finish painted interior walls, carpet and base, interior framing and drywall, interior doors, and soft costs such as contingency, builder overhead and profit, zoning and associated permit fees and architectural and engineering fees. Tenant is responsible for payment for the move of the personal property, disconnection, move and reconnection of all fixtures and equipment, reinstallation of racks and displays, installation of telephone system, associated permit fees, and any electrical requirements in addition to standard electrical service. c. Upon execution of this ASA and an executed lease between Tenant and Landlord for Replacement Structure, City will process an initial payment to Tenant in the amount of TEN THOUSAND, TWO HUNDRED EIGHTY NINE DOLLARS AND 25/100 ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND, SIXTY TWO DOLLARS AND 50/100 ($16,062.50). d. Upon notification and verification that architectural plans for the Replacement Structure have been approved by the City Building Department, City will process a second payment to Tenant in the amount of TEN THOUSAND, TWO HUNDRED EIGHTY NINE DOLLARS AND 25/100 ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND, SIXTY TWO DOLLARS AND 50/100 ($16,062.50). Acquisition Settlement Agreement Page 2 of 8 25Q-29 e. Upon completion of physical improvements to Tenant's unit within the Replacement Structure, City will process a third payment to Tenant in the amount of TEN THOUSAND, TWO HUNDRED EIGHTY NINE DOLLARS AND 25/100 ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND, SIXTY TWO DOLLARS AND 50/100 ($16,062.50). f. City to process a final payment to Tenant in the amount of TEN THOUSAND, TWO HUNDRED EIGHTY NINE DOLLARS AND 25/100 ($10,289.25) once Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to the Property to the City or to City's agents, or Landlord, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. Once Tenant has met all four requirements listed above, City will process a final payment to Landlord in the amount of SIXTEEN THOUSAND, SIXTY TWO DOLLARS AND 50/100 ($16,062.50). g. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. h. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal $90,407. Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal $15,000. In the event that the lease between Tenant and Landlord for the Replacement Structure is terminated, or becomes null and void prior to the final payment in accordance with this ASA, any remaining unpaid payments that were assigned to Landlord will revert to Tenant and no further payments will be made to Landlord under this ASA. Tenant fully releases any and all claims against payments already made to Landlord, which will not be returned to Tenant. Additionally, all future scheduled payments to Tenant will cease until Tenant vacates the Property and meets vacancy criteria as stated in section (fj, above, at which time City will make all remaining payments to Tenant. Tenant is required to vacate the Property within thirty (30) days from the date the Replacement Structure lease is terminated or voided, excepting that tenant must vacate the Property no later than December 31, 2008. 2. Release a. Tenant, on behalf of itself, its 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 Acquisition Settlement Agreement Page 3 of 8 25Q-30 City (collectively "Agents") and all entities related to City, from any and all rights, claims, interests, demands, actions or causes of action which Tenant now has or may in the future have against City arising from the acquisition of the Acquired 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), including claims from vendors, independent contractors, subtenants now and forever. 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. 3. Attorne 's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity By Tenants Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. 5. 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. 6. 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. 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 Acquisition Settlement Agreement Page 4 of 8 25Q-31 invalidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this ASA. Headines 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. 9. Governin 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. 10. 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. 11. 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. 12. 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 by this ASA and with respect to the meaning of California Civil Code § 1542. 13. 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. 14. 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 Acquisition Settlement Agreement Page 5 of S 25Q-32 ASA on his or her own behalf, represents that he or she is authorized to execute this ASA on behalf of said entity. 15. 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. l6. 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 Tenant: Infinity Cellular & Paging 1011 S. Bristol St. Unit B Santa Ana, CA 92703 Attn: Alex Ker To Tenant: Alex Ker Post-move 1011 S. Bristol St. Unit B Santa Ana, CA 92703 Attn: Alex Ker Acquisition Settlement Agreement Page 6 of 8 25Q-33 A'1°1'l:~'1': 17. 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. TENANT: Infinity Cellular & Paging By: Date 2008 Alex Ker OWNER: By: Date 2008 Aurora Angel CITY OF SANTA ANA: By: David N. Ream City Manager ATTEST: By: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: By: Jose Sancbval Senior Assistant City Attorney Date: Date: 2008 2008 Date: Acquisition Settlement Agreement Page 7 of 8 25Q-34 2008 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: Parcel 1: That portion 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. Beginning at a point on the West line of said Lot, 147.5 feet North of the Southwest corner thereof; thence continuing along said West line North 49.18 feet; thence Easterly to a point on the East line of said Lot 195.87 feet North of the Southeast corner thereof; thence South 48.775 feet along said East line; thence Westerly to the point of beginning Except the West 10 feet thereof. Parcel 2: The South 49.16 feet of the North 98.32 feet 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. Except therefrom the West 10 feet thereof, granted to the City of Santa Ana, by deed recorded in Book 2192, Page 384, Official Records. Assessor's Parcel Number: 010-272-24; 010-272-25 Acquisition Settlement Agreement Page 8 of 8 25Q-35 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 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"), and Rocela's Beauty Salon ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Rocela's Beauty Salon, and is the occupant of the real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. B. Aurora Angel ("Landlord") is the fee owner of 1007 to 1011 South Bristol Street, Santa Ana, California ("Property"). Owner 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 Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth. E. Landlord will develop a replacement retail structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04. Construction of Replacement Structure is expected to be completed on or about, December 31, 2008. Tenant has been offered the opportunity to lease a unit within the Replacement Structure and Tenant desires to accept this offer, pending final lease negotiations between Tenant and Landlord. F. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division I, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant understands that they are under no obligation to enter into this ASA and move into the Replacement Structure. Tenant understands and acknowledges that they may choose to relocate from the Property to an alternate site. Acquisition Settlement Agreement Page 1 of 8 25Q-36 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. City agrees to pay Tenant, in accordance with the disbursement schedule referenced in section 1(c)(d)(e)&(f), below, the total sum of ONE HUNDRED THREE THOUSAND, TWO HUNDRED FORTY TWO AND NO/100 DOLLARS ($103,242.00) as compensation for relocation assistance and/or other relocation benefits to which Tenant 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 Tenants may be entitled as a result of City's acquisition of the Acquired Property for the Project. b. Tenant hereby agrees to assign certain payments under this ASA to Landlord to be used exclusively for construction and installation of certain tenant improvements and trade fixtures within Tenant's individual unit within Replacement Structure. The total amount of this assignment is SEVENTY NINE THOUSAND, SEVEN HUNDRED TWENTY FIVE DOLLARS AND NO/100 ($79,725.00). In exchange for such assignment, Landlord will be obligated to provide the following improvements within Tenant's Replacement Structure space: HVAC, lights, T Bar ceiling, insulation at ceiling, standard number of electrical outlets, ceramic flooring tiling and the base, one bathroom that meets Americans with Disabilities Act standards, phone jacks in number sufficient to operate Tenant's current equipment, finish painted interior walls, concrete cutting and patching, plumbing, interior framing and drywall, interior doors, and soft costs such as contingency, builder overhead and profit, zoning and associated permit fees and architectural and engineering fees. Tenant is responsible for payment for the move of the personal property, disconnection, move, reconnection and reinstallation of all fixtures and equipment, installation of telephone system, any electrical requirements in addition to standard electrical service, and any associated permit fees Upon execution of this ASA and an executed lease between Tenant and Landlord for Replacement Structure, City will process an initial payment to Tenant in the amount of FIVE THOUSAND, EIGHT HUNDRED SEVENTY NINE DOLLARS AND 25/100 ($5,879.25) and to Landlord in the amount of NINETEEN THOUSAND NINE HUNDRED THIRTY ONE DOLLARS AND 25/100 ($19,931.25). d. Upon notification and verification that architectural plans for the Replacement Structure have been approved by the City Building Department, City will process a second payment to Tenant in the amount of FIVE THOUSAND, EIGHT HUNDRED SEVENTY NINE DOLLARS AND 25/100 ($5,879.25) and to Landlord in the amount of NINETEEN THOUSAND NINE HUNDRED Acquisition Settlement Agreement Page 2 of 8 25Q-37 THIRTY ONE DOLLARS AND 25/100 ($19,931.25). e. Upon completion of physical improvements to Tenant's unit within the Replacement Structure. City will process a third payment to Tenant in the amount of FIVE THOUSAND, EIGHT HUNDRED SEVENTY NINE DOLLARS AND 25/100 ($5,879.25) and to Landlord in the amount of NINETEEN THOUSAND NINE HUNDRED THIRTY ONE DOLLARS AND 25/100 ($19,931.25). f. City to process a final payment to Tenant in the amount of FIVE THOUSAND, EIGHT HUNDRED SEVENTY NINE DOLLARS AND 25/100 ($5,879.25) once Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to the Property to the City or to City's agents, or Landlord, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. Once Tenant has met all four requirements listed above, City will process a final payment to Landlord in the amount of NINETEEN THOUSAND NINE HUNDRED THIRTY ONE DOLLARS AND 25/100 ($19,931.25). g. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. h. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal $88,442. Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, and/or severance damages shall equal $15,000. In the event that the lease between Tenant and Landlord for the Replacement Structure is terminated, or becomes null and void prior to the final payment in accordance with this ASA, any remaining unpaid payments that were assigned to Landlord will revert to Tenant and no further payments will be made to Landlord under this ASA. Tenant fully releases any and all claims against payments already made to Landlord, which will not be returned to Tenant. Additionally, all future scheduled payments to Tenant will cease until Tenant vacates the Property and meets vacancy criteria as stated in section (f), above, at which time City will make all remaining payments to Tenant. Tenant is required to vacate the Property within thirty (30) days from the date the Replacement Structure lease is terminated or voided, excepting that tenant must vacate the Property no later than December 31, 2008. 2. Release a. Tenant, on behalf of itself, its agents, assigns and related entities, agree to indemnify, fully release, acquit and discharge City, and the officers, directors, Acquisition Settlement Agreement Page 3 of 8 25Q-38 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 Tenant now has or may in the future have against City arising from the acquisition of the Acquired 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), including claims from vendors, independent contractors, subtenants now and forever. 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. 3. Attornev's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity By Tenants Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. 5. 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. 6. Partiallnvalidity 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. 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 Acquisition Settlement Agreement Page 4 of 8 25Q-39 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. 8. 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. 9. 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. 10. 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. 11. Necessarv 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. 12. 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 by this ASA and with respect to the meaning of California Civil Code § 1542. 13. 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. 14. Authority To Execute This Agreement Each Party executing this ASA represents that it is authorized to execute this ASA. Each Acquisition Settlement Agreement Page 5 of 8 25Q-40 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. 15. 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. 16. 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 Tenant: Rocela's Beauty Salon 1011 S. Bristol St. Unit C Santa Ana, CA 92703 Attn: Rocela Moreno To Tenant: Rocela's Beauty Salon Post-move 1011 S. Bristol St. Unit C Santa Ana, CA 92703 Attn: Rocela Moreno Acquisition Settlement Agreement Page 6 of 8 25Q-41 17. 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. TENANT: Rocela's Beauty Salon By: Rocela Moreno OWNER: By: Aurora Angel CITY OF SANTA ANA: By: David N. Ream City Manager ATTEST: By: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Date 2008 Date 2008 Date: 2008 Date: Joee Sandoval Senior Assistant City Attorney Date: Acquisition Settlement Agreement Page 7 of 8 2008 2008 25Q-42 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: Parcel 1: That portion 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. Beginning at a point on the West line of said Lot, 147.5 feet North of the Southwest corner thereof; thence continuing along said West line North 49.18 feet; thence Easterly to a point on the East line of said Lot 195.87 feet North of the Southeast corner thereof; thence South 48.775 feet along said East line; thence Westerly to the point of beginning Except the West 10 feet thereof. Parcel 2: The South 49.16 feet of the North 98.32 feet 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. Except therefrom the West 10 feet thereof, granted to the City of Santa Ana, by deed recorded in Book 2192, Page 384, Official Records. Assessor's Parcel Number: 010-272-24; 010-272-25 Acquisition Settlement Agreement Page 8 of 8 25Q-43 25Q-44