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Home My WebLink AboutINFINITY CELLULAR & PAGING 1-2008AUG 1 2 2008 , A-2008-163 O ` ~~^'~~ (L \) ACQUISITION SETTLEMENT AGREEMENT C~~nC~y Ci0r7~EZ This Acquisition Settlement Agreement ("ASA") is entered into on ,~ , 2008 between the City of Santa Ana, a charter city and municipal corporati duly organized and existing under the Constitution and laws of the State of California ("City"), and Alex Ker dba Infinity Cellular & Paging ("Tenant" or "Displacee"), and Aurora Angel ("Owner" or "Landlord"). City, Tenant and Owner may collectively be referred to in this ASA as the "Parties." RECITALS A. 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 Owner's Property ("Acquired Property"), which will result in the termination of Owner's and Tenant's rights, title and/or interests in the Acquired Property. The Acquired Property is described and depicted in Exhibit "A", attached hereto. B. 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. C. The Property and the Acquired Property are located within the Bristol Street Widening Project ("Project") from Pine Street to McFadden Avenue. D. The Parties' rights, obligations and monetary entitlements with regard to the acquisition of the Acquired Property by City are in dispute. The Parties desire to define their respective rights, obligations and monetary entitlements and to resolve any and all disputes pertaining to the acquisition of the Acquired Property by City upon the terms and conditions as contained in this ASA. E. Landlord plans to construct a replacement structure ("Replacement Structure") on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04, as more fully described and depicted in Exhibit "B" attached hereto. Construction of the 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. F. Tenant has been informed that it 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 has been informed of the City's relocation program and has received written material describing City's relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. Tenant acknowledges and agrees that it is under no legal obligation to enter into this ASA, nor to move into the Replacement Structure. Tenant acknowledges and agrees that it has the choice to relocate from the Property to an alternate site rather than to the Replacement Structure as herein proposed. Acquisition Settlement Agreement Page I of 8 I . ;` ~... Tenant's Initials Landlord's Initials ~ ~ 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 FIVE THOUSAND FOUR HUNDRED SEVEN AND NO/100 DOLLARS ($105,407.00) as full compensation for any and all relocation assistance and other relocation and/or displacement benefits to which Tenant is or may be entitled, including, but not limited to, compensation for any and all loss of business goodwill (if any), leasehold interests, personal property, improvements pertaining to realty, bonus value (if any), severance damages (if any), and any and all other damages to which Tenant is or may be entitled to as a result of City's acquisition of the Acquired Property for the Project. b. Tenant agrees to assign a portion of the compensation described in Section 1(a), above, to Landlord, which Landlord agrees shall be used exclusively for the purchase, construction and installation of Tenant improvements and trade fixtures to Tenant's unit within Replacement Structure. The total amount of compensation being assigned by Tenant to Landlord under this ASA is SIXTY FOUR THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS ($64,250.00). As consideration for said assignment of compensation, Landlord agrees to provide the following Tenant improvements to Tenant's unit in the Replacement Structure: 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 agrees it bears sole financial responsibility for the following: (1) to move its personal property from the Property to the Replacement Structure, (2) for the disconnection, move and reconnection of all fixtures and equipment from the Property to the Replacement Structure, including the reinstallation of racks and displays installation of telephone system, and (3) any electrical requirements in the Replacement Structure that are in addition to standard electrical service. c. Upon execution of (1) this ASA and (2) a valid and enforceable lease between Tenant and Landlord for Tenant's occupancy of the Replacement Structure, City agrees to process an initial payment to Tenant in the amount of TEN THOUSAND TWO HUNDRED EIGHTY NINE AND 25/100 DOLLARS ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND SIXTY TWO AND 50/100 DOLLARS ($16,062.50). Tenant and Landlord shall first provide to City a copy of the documents referenced in this Section before City is obligated to process payment(s) hereunder. d. Upon verification by City that architectural plans for the Replacement Structure have been approved by City's Planning and Building Agency, City will process a second payment to Acquisition Settlement Agreement Pale 2 of 8 Tenant's Initials Landlord's Initials c ~~ . Tenant in the amount of TEN THOUSAND TWO HUNDRED EIGHTY NINE AND 25/100 DOLLARS ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND SIXTY TWO AND 50/100 DOLLARS ($16,062.50). e. Upon completion by Landlord of the physical improvements to Tenant's unit within the Replacement Structure, City agrees to process a third payment to Tenant in the amount of TEN THOUSAND TWO HUNDRED EIGHTY NINE AND 25/100 DOLLARS ($10,289.25) and to Landlord in the amount of SIXTEEN THOUSAND SIXTY TWO AND 50/100 DOLLARS ($16,062.50). f. City agrees to process a final payment to Tenant in the amount of TEN THOUSAND TWO HUNDRED EIGHTY NINE AND 25/100 DOLLARS ($10,289.25) once City verifies that Tenant has satisfied the following conditions : (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over to the City, City's agents, or to Landlord all sets of keys to the Property, 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 satisfied all four conditions listed above, City agrees to process a final payment to Landlord in the amount of SIXTEEN THOUSAND SIXTY TWO AND 50/100 DOLLARS ($16,062.50). g. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be apportioned in the following amounts: Relocation benefits shall equal NINETY THOUSAND FOUR HUNDRED SEVEN AND NO/100 DOLLARS ($90,407.00). Payment for any and all loss of business goodwill (if any), leasehold interests, personal property, improvements pertaining to realty, bonus value (if any), severance damages (if any), and any and all other damages to which Tenant is or may be entitled to as a result of City's acquisition of the Acquired Property for the Project shall equal FIFETEEN THOUSAND AND NO/100 DOLLARS ($15,000.00). h. Landlord and Tenant agree that in the event a valid and enforceable lease between Landlord and Tenant for the Replacement Structure is voided, is mutually or unilaterally rescinded, or becomes unenforceable prior to City issuing the final payment in accordance with this ASA, the Assignment referenced herein shall terminate and any remaining unpaid payments that were assigned by Tenant to Landlord shall become the exclusive property of Tenant and no further payments will be made by City to Landlord under this ASA. Tenant and Landlord fully release any and all claims against City for any payments made hereunder. Additionally, any remaining payments due Tenant will not be processed by City until Tenant vacates the Property and meets the conditions set forth in Section 1(f), above, at which time City will make all remaining payments to Tenant. Tenant agrees and is required, without further Notice, to vacate the Property within thirty (30) days from the date the Lease between Landlord and Tenant for the Replacement Structure is voided, rescinded or becomes unenforceable, except that Tenant agrees that in any event it must vacate the Property not later than December 31, 2008. Landlord and Tenant agree that any disputes relating to payments made hereunder shall be controlled and resolved pursuant to the terms of a separate agreement between the Tenant and Landlord. Acquisition Settlement Agreement Page 3 of 8 Tenant's Initials Landlord's Initials 2. Owner's Duties Owner agrees to develop a Replacement Structure on the lot immediately east and adjacent to the Property. This lot is identified as APN 101-272-04. Construction of the Replacement Structure is expected to be completed on or about, December 31, 2008. 3. Release and Indemni Tenant and Landlord, unconditionally agree to release, indemnify, defend and hold harmless City, its officers, directors, Agencies, employees, and authorized agents (collectively "Agents"), from any and all claims, liabilities, costs, damages or causes of action which Tenant and/or Landlord now have or in the future may have against City arising from the acquisition of the Property for the Project, including, but not limited to, any and all relocation assistance and other relocation and/or displacement benefits, and including compensation for any and all loss of business goodwill (if any), leasehold interests, personal property, improvements pertaining to realty, bonus value (if any), severance damages (if any), and any and all other damages to which Tenant and/or Landlord may be entitled to as a result of City's acquisition of the Acquired Property for the Project. 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. 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 the Parties 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. 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. Acquisition Settlement Agreement Page 4 of 8 Tenant's Initials Landlord's Initials 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. 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. 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 on behalf of said entity. Tenant's Initials Acquisition Settlement Agreement Page 5 of 8 Landlord's Initials 15 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. Nnti~Pc 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: Post-move Tenant's Initials Acquisition Settlement Agreement Page 6 of 8 Landlord's Initials 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: A ex Ker OWNER/LANDLORD: Date: Z , 2008 Aurora Angel By: ~L,...~=-.. -/, ~-, Date: ~ ~ ~ , 2008 Auro Angel CITY OF A TA ANA: r By: , ~ ~ e=~-~-~ Date: ~ /r David .Ream City Manager ATTEST: By~ .~/ Patricia E. He ly Clerk of the Council APPROVED AS TO FORM: _~ r-? ose Sandoval ~' 2008 Date: 0 ~ ~ , 2008 Date: ~'~ , 2008 i% Managing Senior Assistant City Attorney Tenant's Initials Acquisition Settlement Agreement Page 7 of 8 Landlord's Initials EXHIBIT A LEGAL DESCRIPTION ~ ~ i THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: THAT roRTION OF LOT 110-THE NDANOERTMCi, DITHF CRY OF - WITA ANA. COUNTY OF ORANG4 7TATE OFCALiFORMA. FtA MAt FII,EO IN SOOEL FADE U OF LUSCELLANEOUS MAR, EI THE OFFICI OFTNE COtR(IY RECORDER Of SA10 COUNTY. DESCRIEED AL FARCK t M A OMNT PLED RECORDEOON OCTOEER 11. IM1 AS MfTItUMFIR Na n•mul, arFxuL IIECOROS of Mro COIDlTY RECOROgI Lra/c YYELTERtY ar tHE rouowElc aFx11oED LINE: COMMEMCD/O ATTHE FOINTOF DRERS[CTENI OFAL0/E tAFALL[L Wm A~LRt~ ucTttI VRN AND /100 FE[T EEOVSSRELY OE ~~~ ION SSREET. A7 aao ill{{LIS w~c arw+w w aww t. tFLFEMDiCULAR TOlAro CLTRELLDR bF CUESON IF.M)FLTTO THE tEYL FONtTO-EECINNEIG: THe r Nan.muL.o.a ODHTAEIOR IJF1 LQUARE FEET. MORE OR LE21 ALL Al SXOWNgIlroIOIY'w•ATTACHlD HERETO AND EY 7111L ' ~• REIERENID; MADLAFARTIRREOf. - SI7E/ECTTO A4 COVENAN71. R16Nt; RIOHTSOi-WAYAND GSFNEMS oFREeoaD,vANr. FRftARED RY ME.OR UNDER MYINRECRON ON MYM J. RIV[RA, tIJ W/ EXtIRY IJA N7f ~wmFta - a/R • •. ,4 rARarc TIUT tORTION or tAT a Or TNENptINOERTMCT. LATHE CITYOr lANTA ANA,t:OUNTYWORIWOE, LTATL OFCALUORNU, ttRMM FILED . w EOOE 1. FADE 71 O- WECELEANLOUf MAR.pT116OIFICE WTHE COIRRY RECORDER O/IAro CQIRRY, O[fCRItEO AL fARCLL7NA ORANTDEW R[OOROtOON Of:TOEERlI.I>tI ALE'pTRIMNi - NOfW111/f,OFtMTAL REC9ROf OF SAU)COUMTY RECWtDt1~jY0Y0 ~ - WOSIILLYOFTNiFOLLOWM6OSICRIRLDLD7t:• .. YOFTNE LNOMI DN LAID WITNAIEIE THENCE, SOUTHERLY ALONG SAIDMMLLEL LINE S0071'M•W, F1.1)fEET ~ TO 1T1 E LOUTHgtLY L W E 0-SA1 D tARCEt 1, D4TRUNENT N0. tIdR1U,0i ~ CONTAMMG I.Mf fQUAE6 FEiT. MORE OR LESL ACL AE SHOWN ON EXNISIT'E•L~TTACNED HERETO AND RY TNIi REF ERFNCE MADE A FART XEREO-. tUS1ECTT0 ALL tbVENANTi, RIGHTS. RIONTEAF-WAY AND EASEMENTS OF SEL'OR0. IF ANY. . tLEMRED 0Y NE; OR UNDER MY DIRECTION ON /dam MYM~O7W )), RIVERA, tLt t77/ wurl EXNItES IY7IN) G aAwur •. Tenant's Initials •i CUBBON ST. "'10f~?y a ii wa.•a't P.O.& R u. IA7 r.71 •tLr COWt1 7 $5 r~ r 1 ~~ 1 I ~ ~ ~1 •' ~ J . .l.r OETAIL-NTS 0 Ilr ~ I ,y~ ~~ ~+ CUBEON ST, w ~r.o.e ~-- 1 .«w ~ ' ~~I iE l ~ 1 N I E ~ x ~ . L I Vim ~ ~ ~ N I ~ K S ~ 1! ^ ~ P.O.C. --n w - I J 1 _ ~ ~ N~M '1~"~1' I PARCEL '8- . ~ I 1,939 SO FT _G ~- ~ 1 'S m t I ~Q- ~l ~ I it I I ~ Y I ~`'~•A' 4 ~ I I I 8 I I ~a `~` ~• Y .. 1y I ' I N.L~ CPMtA ' -i ~ = ~ ur ri •.r 471 •I F~~~ - IMCFADDEN x~ AVE. . EX!lifll,Ley Acquisition Settlement Agreement Page 8 of 8 ~ 1 Landlord's Initials { EXHIBIT "B" REPLACEMENT STRUCTURE THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: The West Half of the North Half of Lot 11 of "Nininger Tract", as per map thereof recorded in Book 8, Page 33 of Miscellaneous Maps, records of said Orange County, California. Acquisition Settlement Agreement Page 9 of 8 Tenant's Initials '( Landlord's Initial CONSENT CALENDAR MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero, Pulido (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 25.K. AGMT NO. 2008-154 -CONSULTING AND TRAINING SERVICES -With davidhartl.com, formerly known as General Learning Climates, in an amount not to exceed $60,000 -Police Department 25.L. AGMT NO. 2008-155 -PREVENTIVE MAINTENANCE AND REPAIRS OF MECHANICAL AND HVAC SYSTEMS -Execute an amendment with ACCO Engineered Systems in an annual amount not to exceed $165,000 - Police Department 25.M. AGMT NO. 2008-156 -TRAFFIC SIGNAL AND STREET LIGHTING MAINTENANCE SERVICES -With Econolite Traffic Engineering and Maintenance, Inc. (Econolite) in the amount of $130,000 for a maximum contract amount not to exceed $780,000 for the fiscal year 2007-2008 and approve a one year extension in an amount not to exceed $650,000 - Public Works Agency 25.N. AGMT NO. 2008-157 -PURCHASE AGREEMENT FOR 605 S. BRISTOL STREET (PROJECT 06-1500) -With Fredi Marrero in the amount of $131,400 -Public Works Agency 25.0. AGMT NO. 2008-158 - DESIGN ENGINEERING SERVICES FOR ENERGY CONSERVATION IMPROVEMENTS -With Siemens Building Technologies in an amount of $50,000 -Public Works Agency 25.P. AGMT NO. 2008-159 -PURCHASE AGREEMENT FOR A PORTION OF SANTA ANA CALIFORNIA, LLC PROPERTY AT 2909 S. BRISTOL (PROJECT 06-3510) -With Santa Ana California Lodge, LLC, in the amount of $18,000 -Public Works Agency 25.Q. AGMTS - ACQUISITION SETTLEMENT AGREEMENT FOR BUSINESSES AT 1007-1011 S. BRISTOL STREET (PROJECT 06-1500) - PUBLIC WORKS AGENCY CITY COUNCIL MINUTES 156 JUNE 2, 2008 CONSENT CALENDAR ^ AGMT NO. 2008-160 -With Martha's Market for $114,466 ^ AGMT NO. 2008-161 -With Gilberto's Restaurant for $272,000 ^ AGMT NO. 2008-162 -With Gamez Insurance and Income Tax for $96,696 ^ AGMT NO. 2008-163 -With Infinity Cellular & Paging for $105,407 ^ AGMT NO. 2008-164 -With Rocela's Beauty Salon for $103,242 25.R. AGMT NO. 2008-165 -MANAGEMENT AND OPERATION OF THE CABRILLO TENNIS CENTER -With Match Point Tennis Academy LLC. - Parks, Recreation & Community Services Agency 25.S. AGMT NO. 2008-166 -COOPERATIVE AGREEMENT FOR OFFICE MODIFICATIONS AT THE SANTA ANA REGIONAL TRANSPORTATION CENTER -With Community Redevelopment Agency of the City of Santa Ana for an amount not to exceed $69,100 -Community Development Agency 25.T. AGMT NO. 2008-167 -ACQUISITION SETTLEMENT AGREEMENT FOR BRISTOL STREET LIQUOR AT 323 S. BRISTOL STREET (PROJECT 06-1500) -With Parks Family Liquor Inc., dba Bristol Liquor & Market in the amount of $565,000 -Public Works Agency MISCELLEANOUS ADMINISTRATION 29.A. INSURANCE RENEWALS Motion: 1. Approve the City's continued membership in the Big Independent Cities Excess Pool from July 1, 2008 to July 1, 2009, at an estimated premium cost not to exceed $1,750,000. 2. Approve the City's continued participation in the Public Entity Property Insurance Program from July 1, 2008 to July 1, 2009, at an estimated premium cost not to exceed $400,000. 3. Approve the City's continued participation in the California State Association of Counties -Excess Insurance Authority's Crime Bond Program from July 1, 2008 to July 1, 2011, for three years at an estimated premium not to exceed $40,000. LAND USE MATTERS CITY COUNCIL MINUTES 157 JUNE 2, 2008