Loading...
HomeMy WebLinkAbout25A - DYER/REDHILL INTERSECTION WIDENING REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended ACQUISITION OF RIGHT OF WAY FOR ? As Amended THE DYER/REDHILL INTERSECTION ? Ordinance on 1S' Reading WIDENING PROJECT ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Y MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached purchase and sale agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney, with the following parties: • Kinco Redhill, LLC, a California limited liability company for $491,335 and $122,065. • HPT CW Properties Trust, a Maryland real estate investment trust for $1,703,585. DISCUSSION The intersection of Dyer Road/Redhill Avenue includes portions of Santa Ana, Irvine and Tustin. The widening of this intersection was identified as a required mitigation measure in the 1992 Irvine Business Complex (IBC) Rezone Environmental Impact Report (EIR) prepared by the City of Irvine. Improvements include widening Dyer from six to eight lanes from the Burlington Northern Santa Fe (BNSF) Railroad to Redhill and Redhill from six to eight lanes between Deere Avenue and north of Dyer Road in Santa Ana. On November 24, 1992, the City Council approved a cooperative agreement between the City of Santa Ana and Irvine to widen the intersection. The agreement stipulates that Irvine is responsible for identifying right of way impacts and that Santa Ana is responsible for negotiating any acquisitions with the effected property owners. The costs for the acquisitions are part of the project and will be paid for by the City of Irvine. 25A-1 Acquisition of Right-of-Way for the Dyer/Redhill Intersection Widening Project January 4, 2010 Page 2 Partial acquisitions of the property at 2600 S. Redhill Avenue (a hotel facility operated by Candlewood Suites) and at 2850 S. Redhill Avenue (a professional office complex operated by PJMB Commercial) are required (Exhibit 1). Each acquisition impacts only a portion of the property, with no impacts to existing buildings. Included in the acquisition of both properties is the area needed for a temporary landscape easement. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared EIR approved by the City of Irvine in 1992. FISCAL IMPACT There is no fiscal impact associated with this action. The City of Irvine is responsible for the total cost of the project. APPROVED AS TO FUNDS AND ACCOUNTS: tnI`e~~~r~a ~ Raul odinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 25A-2 LEGEND SUBJECT PROPERTIES a f, • / ice/ C / • • ' . ~N ORgNG~ o c EXHIBff 1 ~ °Z o ~ SANTA ANA 4 ! 1 CffY COUNCIL ACQUISITION OF RIGHT OF WAY FOR THE P W A AC~NDA DATE= DYER/REDHILL INTERSECTION WIDENING JANUARY 4 2010 PROJECT PUBLIC WORKS AGENCY 25A-3 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this day of , 2009, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer"), and Kinco Redhill, LLC, a California limited liability company (hereinafter called "Seller"), regardless of number or gender; WiTNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as "said real property") described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE ATTACHMENT 1, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion 2850 Redhill Avenue, Santa Ana, CA) (APN 430-181-26) Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. Page 1 of 9 2 5A-4 3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of FOUR HUNDERED NINTY ONE THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100 Dollars ($491,335) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 90 days of the City's execution of this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Attachment 2 attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Attachment 2 of the General Provisions of this Agreement. 5. Proaerty Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. Page 2 of 9 25A-5 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of FOUR HUNDERED NINTY ONE THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100 Dollars ($491,335). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Left Blank 9. Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs, Assigns, Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: PJMB Commercial ATTN: Marc Barkdull 7060 Koll Center Pkwy, Suite 334 Pleasanton, CA 94566-3109 Page 3 0l') 25A-6 15. Exceptions. City agrees to accept title to said real property subject to the following: NONE. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue{s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Hazardous Waste. Seller has informed City (for which City was already aware) that the site is over an existing plume that is being cleaned up and monitored by others, and for which Seller is not responsible. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), {iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec.. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et sec . (42 U.S.C. S9601). 18. Compliance With Environmental Laws. Except for the known Hazardous Material plume in the ground water and related contamination noted in Section 17 above, to Seller's reasonable knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. Page 4 of 9 25A-7 19. Indemnity. Intentionally Omitted. 20. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 21. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 23. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 28. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 29. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. Page 5 of J 25A-8 30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date written below. SELLER: Kinco Redhill, LLC, A California limited liability company By Its: CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPR OVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 6 oP 9 25A-9 Attachment 1 Ya~;~ i or I Ll':GaL DF.,SC:'RII'`i'N)'V AI' NU. ~3~i1-IRI-26 RE_D IiII.i, ,~1.L;NU1?. (Ii1VCU RFa[iI1.L+ [,LCi Chat cc•.tain 1rrrccl of I;mcl siltratcxl in the ('its,' t!f ti.~,n(u r1n;i, f'.tYtrnt+,' at t.)r-rrs~ro, tirntP. car i'nlili,rnt r ?yi;ing, that l~prtintt +~Y 1'tacel 2 c,J Parcel ibltt,t Ntt. +~.w-] ti'' a; she+tv,t un a trtap tlterci~f' iilcd in',_3,~+~k ?(}(i Paget •-I? anti i?f Panel t~iaps in the (tltiee ~~I the [ {~untJ hi~c:':~rtlcr rtif sr:rid C)ran~c C'rn.nr~, ile'siri_,~J as li±lhza's; tiC:C:l~i~l\C: at the .:,n~therrsterl;, tem;inus ~~i' Ihat cer•t:;n tours:: in tl:a :r~t;titi~esterly line i+f' ;girl Par.:el ? sh~xvn as "N~~Hh a9" 20'~`s" til'cst. ,141,30 ti:~l' ; O;cncc alnn_? !:,riJ SL+Ul1LP'cstcl'lYe lirtc ~c~rrlt -ty"'(.~'~.'" 4~cst I:,.?~ t~c~t, t1:•ncc ltiorih Si=.40'11}" lSa,t ?K.O; lee+,. t~ rt line p•.trallrl scitJt and 11.?~ Ccet rtisrlhtivcsicrJ}' of the sc>atL'eastcrly line e:.t said Parcel thcni;e alisr;,1; sari parullc] lint \~ni7;t ~}r}°1G'~G" Last 50~i_?4 ioi'.1; thence \'urth :i9°;trt't'1" last ?3.?3 feet t~~ rltc. s[~uth~.vesicrJy fine ~f thaf eertaut parcel c>L~ lantt de ct'if~ed in a dreiJ tc> the Atthi~un, 'T'opeka and Santa i~c Kailtva}' t_:untpany rec~rileil June ]5, 19fi(i in Bc~uk ?9b?, I'agc fit itf' Official Rccrtrd in srtiti t:)i>`ici: irf tltr. C'umriv itccnrtier of Urau`c C'oirnt,Y; tlten4:e .dons stticJ si5uthweti•Rerly line 5uuth ~h)°ai'S3" iia~t f 18U feet trt the soatheasti:rly line cif saiii I':ta'r.el tJtcncc alc~rtt; the at+ulhe:tstcrly~ line of said p<trt;cl 5itirth-{fl'.3(a3G" t~,'cst i4~1.?8 i%ct anti Sotttlt 85'j?'S?„ 1~5'e;t t~ i7 feet to the POINT OF RECINtyING. COVT,~iNI\C:/,,,4f.;; Syuarc i:'cct. S(!IiJla'T'1'O alt ('c;vcncuits, 12iy;ht~, ftigJrts-r>1=~1'':;y ?r~d Liasi~rrrc.rts r,i~Rccnrrl. F\F1IB1'f +`li+• attaehcd and by this; rcfc.rratcc madea part l;crcr:~f. ~~a t.arao L KURT Fi. Kurt It. I7~.rxell; L.S. ?8~4 ll' is * 7854 m Z7FaC A~-~ o~t~~ Page 7 of 9 2 A-1 5 0 Attachment 1 `do-= --:tJl:1C.d'~_5 ?G~OFC L'~ATA :==3 r'.1/ `Jl':, 9a '.P.;. ~ S i - P.~~•. fr ; I . ~ y r.T.. icS.f. ESSL-. ;,.fl c y{~ ~ - _I i 'r'~~ A.T. do S.I ESNi . f~f~~FCI~~~ f'>'~~~'~ 14~i~i, ~~J'- ~7 - I~c.ls ,i~ ~ i - ~ ° _ j „ 1 if} cs:~ • ~ AP N0.430-181.26 - , of 1 ? . ;n ~ LiJ u7 `U i 2ra:~~'1 SCl)TH REi1 Hll.l. A'~J:. PlliE.') w - ~ I'--. ~ ~ i N'. I N S ~ti0~ ±~iF.i~C~i'~:t_! t.a RADIUS EE~~IGTH - -'~I . . _ ~ -r, 1 M49°2%]'S)"N ;3.23' c~ f 2 tJ3'~`39,•,9.•1 33.73' I _t ( 3 5`49'7q'`,ti.S"E 11.t3~' I I }I C,_' A `;35'37`52"'N 35.37` { (t~3'~°3'!'»5"E 3.5.37 } 30'1-i:1'I 60' .i: I 11.24. _ iZll~ ~JBS'43'..'~J"E ` ~ r r'CL . 2 _ r I - - - N43; r^();' S2,°'N 311 .30; c3`- ; ` I I r; _ _ _ ._._~M•4;} Jr] SS N'_..:.341_30...1 _ tJ44° 20 ~ `;2""~l L=~57.2.i' F (N4 J' ?0' S8" ~ 0.57.23') - l- ~ DEERE AVENUE ~ ~ 4~, _ P.O.B.. _ EXHIBIT "B" ~ ` ~ ,TO,u~co~iwrA ~ f lC-GN. DF.9CRIPf10N FON 9NEET 1 O~ 1 SHEET AP NO.430.191,28 ~ ,r RfD HILL AVENUE ¦ ¦ ~ • • ..::s.~,,.~ KINCO REDkILL, LLC{{ rax ~w~m. a.oa v,a CL:1N'3ULTIN~a w:"n iY.ti FAr. y>}n+_~y/}7.. CON7/UN1Na:8,4B23QUAREFEET esnrr,+.R•r t,.:;~a ..,u: tc-t:unat Page 8 of 9 25A-11 Attachment 2 GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30-day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Paoe I of 9 25A-12 ~ PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA"), entered into on 2 0 0 9 , between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and Kinco Redhill, LLC a California limited liability company (hereinafter "Seller"), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, a portion of that certain real property (hereinafter "Said Real Property") legally described and depicted as follows: SEE Attachment 1 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 2850 Redhill Avenue, Santa Ana, Ca) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit 1. Conveyance by Seller. Seller agrees to convey Said Real Property to City, by Quitclaim Deed, within thirty (30) days from and after the date on which the City has approved this PSA. 2. Title to be Conveyed. (a) The Seller's interest to the Real Property will be conveyed to City by Seller by Quitclaim Deed. (b) Seller also agrees to convey to City a Temporary Landscape Easement (hereinafter "TLE") as described in "Attachment 2", attached hereto and by this reference made a part hereof. (c) Seller also agrees to execute a License and Right of Entry Agreement (hereinafter "ROE") as described in "Attachment 3", attached hereto and by this reference made a part hereof. 3. Intentionally Omitted. 4 Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for Said Real Property, fixtures & equipment, improvements pertaining to the realty, goodwill (if any), severance damages (if any), and a TLE, the total sum of ONE HUNDRED TWENTY TWO THOUSAND SIXTY FIVE DOLLARS and No Cents ($122,065.00). 5. Deadline for Pavment of Purchase Price. City agrees to pay the purchase price of ONE HUNDRED TWENTY TWO THOUSAND SIXTY FIVE DOLLARS and No Cents ($122,065.00) to Seller within THIRTY (30) days from receipt of a fully executed Quitclaim Deed and TLE. 6. Recordation of Deed. Buyer shall hold the Quitclaim Deed and TLE as an escrow holder and Buyer shall not record until City has paid Seller the full purchase price for said Real Property and receive confirmation from Seller or Seller's counsel that the full purchase price has been received by Seller. For purposes of this agreement, the City shall be referred to as Escrow Agent. Page 1 of 16 25A-13 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Intentionally Omitted. 9, Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs. Assigns, Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: PJMB Commercial ATTN: Marc Barkdull 7060 Koll Center Pkwy, Suite 334 Pleasanton, CA 94566-3109 15. Exceptions. City agrees to accept title to subject to existing encumbrances. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Hazardous Waste. Seller has informed City (for which City was already aware) that the site is over an existing plume that is being cleaned up and monitored by others, and for which Seller is not responsible. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted Page 2 of 16 25A-14 hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec . (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seg. (42 U.S.C. S9601). 18. Compliance With Environmental Laws. Except for the known Hazardous Material plume in the ground water and related contamination noted in Section 17 above, to Seller's reasonable knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 19. Intentionally Omitted. 20. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 21. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 23. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance By One Party On The Other Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. li Page 3 of 16 25A-15 26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 28. Applicability of Aqreement To Assignees. This Agreement shalt be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 29. Authority to Execute Aqreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 30. Incorporation of Exhibits. All Attachments referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date written below. SELLER: Kinco Redhill, LLC, A California limited liability company By Its: CITYIBUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 4 of 16 25A-16 Attachment 1 LEGAL bESCRIPTION RED$ILL AVENUE BNSF R'+ILW'AY CITY OF SANTA ANA That certain parcel of land situated in the City of Santa Ana, County of Orange, State of California, being that portion of Parcel I and that portion of Parcel 2 of Parcel ivfap No. 98-187 as shown nn a map thereof filed in Bonk 306, Pages 47 and 48 of Parcel Maps in the Office of the County itec:orclcr of slfid Ulunl;c Cuuuty, dcsclibccl a; luilo~as: COIYIiVlENCING at the southeasterly terminus of that certain course in the southwesterly line of Parcel 2 shown as "North 49°20'58" West 341.30 feet" on said Parcel IVfap No. 98-187; thence along said southwesterly line North 49°20'52" West 13.23 feet; thence leaving said southwesterly line North 85°49'30" East 38.07 feet to a line parallel with and 11.24 feet northwesterly of the southeasterly line of said Parcel 2; thence along said parallel line North 40°36'36" East 509.24 feet; thence leaving said parallel line North 39°39'19" East 33.73 feet to a point in the southwesterly line of that certain parcel as described in that Grant of Easement to The Atchison, Topeka and Santa Fe Railway Company (AT&SF) recorded June 15, 1966 in Book 7962, Page 62 of Official Records in said Office of the County Recorder of Orange County, said point being the TRUE POINT OF BEGINNING; thence North 39°39'19" East 34.01 feet to a point in the northeasterly line of said AT&SF parcel distant thereon NoRh 49°20'53" West 12.36 feet from the southeasterly line of Parcel I of said parcel map; thence along said northeasterly line South 49°20'53" East 12,36 feet to said southeasterly line of Parcel 1; thence along said southeasterly line of Parcel 1 and Parcel 2 South 40°36'36" West 34.00 feet to the southwesterly line of said AT&SF parcel; thence alon said southwesterl li g ne North 49°20'53" West 11.80 feet to the TRUE POINT OF BEGINNING. y CONTAINING: 411 Square Feet, more or less. SUBJECT TO all Covenants, Rights, Rights-of-GVay and Easements of Record. EXHIBIT "B" attached and by this reference made a part hereof. ~~~~Q t.AND SU9G~~ KURT R. p ~ TROXEl1 ~ ~;~s Zoo ~ 7854 Kuri R. Troxell, L.S. 7854 Date r1'~9J~ "~~~~«0 F~F CAS-CFO H:!pd atat 10104041 ~Ad min~lega1s~404 I •LG L- I i.doc Page 5 of 16 25A-17 Attachment 1 Exhibit B F~~~C~ I ~ I I ~ >J~1RC='i Tai P 1~I0. ~8- l 87 ~ c L'( LIPlE FCL. 1 I ~ PROFOSEO Rj'N~ 1~I0 U ~~I~l X30--1~1-~; I ~ ~-i 6NSF RAIL'8AY (FOR~,IERLY AT&SF) ~ 5 30'130' 60' O.R, 7~/62~ ~I ~ 6 _ NE'LY LL~E O.R 7962/62 4 ~ _ _ 1----f=- S'N'LY IIPIE O.R. 7962/62 -J ~ t ~ ~ O.R. T,p.0.8, 3 7 8450/651 11,24' 4I f ~kr~~ ~ ~ I N o ' 1 R I PARrr L Ti1;~P N0. J~--1 ~ ~ a o r w l T. 1 r ~ ~ I r ~ _ CTS o R ~,M.~. 300/-,7~~r7 ~ ~ ~ ~ z ~ i ~ I APN ~,3~J-l 7~-_7S ~ I ; ~o > LLi m u~ ^ C1. -ci' I Z ~ m ~ J V N m ~ I ~ J ~ CQ OATH TABLE I ~ w = R. ~ Ca I J N C>, _ ULl. I U U ~ ~ N0. 6RNG/DELTA RADIUS LENGTH ~ Q ~ _ a ~ M ~f 1 N49 20'52"W 13.23' JN '~O~ ~ ~ 2 N85'44'30"E 38.07' -r' $ ~v°,I M 3 N39'39'19"E ~ `nor' ~o 33.73 ' vwi v' z ` 4 N39'39' 19"E 34.01' w iw 5 S49'20'S3"E 12.36' M~ M M ~ 6 540'36 36"W 34.00' ~ ~oia Y~ I 7 N49'20'S3"W 11.80' B S85'37'52"W 35.37' a) ~ o~ ~'~b. (N85'37'46"E 35.37') Z ~nz I `1 11,24' 120' 30' 30' 60' 2 SW LY LINE PCL. 2_~ 8 i I c7~ N49'20;52~W 341.30' o - I ~,~N49 ~ 20 58 W 341_,30 ~ _ N49'20'S2"W 657,23' ~(N49'20'S8"W 657.23') 1 P'OrC, ~ QEERE AVENUE 4 ' NOTE: ~+ro,~caua,wr~ ( )INDICATES RECORD DATA LEti3A1.0ESCR1PT10NfOR PER P.M. N0, 98-187, REDHILLAVENUE P.I.B. 306/47-48 SHEET 10F 1 SHEET 6NSFRAILWAY MANNING DCSiON ¦ CDNlTRUCTI[1N CRY OF SANTA ANA ¦ ¦ ¦ N7I5 ALT[N P.Ub(WA7 PYIE CAI_FniVA 72flY7027 CON7AINlNG: 411 SQUARE FEET f CONSULTING sao~7zasns • FA; sac~720.17J ..,~„/i$f~y„ dILY B, 2009 J.N. IO-104041 Page 6 of 16 25A-18 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCEL AGENCY(IES) APPROVED BY DESCRIPTION DESCRIPTION A.P. RNV MAP PROJECT TAXES PUBLIC WORKS DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER 430-181-26 Portion of 2850 Redhill Avenue, Santa Ana, California Attachment 2 TEMPORARY LANDSCAPE EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Kinco Redhill, LLC., a California limited liability company Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and Jaws of the State of California, easement for public right-of-way purposes for the right to plant, maintain, replace, or remove landscaping in, upon, over and across that certain real property in the City of Santa Ana, County of Orange, State of California, located at 2850 Redhill Avenue, Santa Ana„ legally described as follows: SEE ATTACHMENT 2, EXHBIT "A"and "B" -LEGAL, ATTACHED HERETO; AND BY THIS REFERENCE MADE A PART HEREOF: This permission is granted subject to the following conditions being fulfilled by City: (A) Improvements will be constructed in the areas as shown in Attachment 2, Exhibit B, attached hereto and made part hereof. Landscape improvements will be constructed by the City of Santa Ana, or their designee, in the areas as shown in Attachment 2, Exhibit C, Revision 4. (Revision 4 is the resulting landscape plan as agreed to by the City and Klnco Redhill, LLC.) (B) During construction of driveway approaches, access to the business will be maintained at all times. In some cases, construction of one-half of a driveway approach at a time may be required. In this case, the contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed. At no time shall the contractor block access to the business during construction. (C} City shall indemnify the undersigned against and hold the undersigned harmless of any loss of or damage to any property, or injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City of by any act or omission for which the City is liable in the exercise of the rights herein granted. It is understood that the period of use of said easement shall exist for a period of no more than 12 months and shall commence with the first entry of owner's property by City's contractor. Upon completion of street widening work, the Easement Area shall be maintained with landscaping in compliance with City ordinances as applicable to this site. This easement shall terminate upon completion of said construction and in any event shall cease and terminate not later than December 31, 2011. Kinco Redhill, LLC By: Date: , 2009 Its: STATE OF CALIFORNIA }ss. COUNTY OF } On ,2009, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature SIGNATURE OF NOTARY PUBLIC PLACE NOTARY SEAL ABOVE Page 7 of 16 25A-19 Attachment 2 Page J of 1 Lha;:U.. DESC'R[l'htON :i P It 0.43U-181-1ii I~OIt'I'F;IVII'OR:1Rti' L.riVpS('API: E:1SE.li!';iv'I' RF.D 11ILL:i~'E~iUE (T:I.\C,'U R.EDIIiJ,L, LI,C} 'hhat certain parcel of land situated in the City of Santa Ana, County of {;)rmgc, State of C:aliti~rni•_t, being that portion of 1'arccl ? of Parcel ~7ap ltio. 93 13? as i;hovrn on a m~ip thereof lilcd in Book 30G, Pages -1? and X18 of Parcel ~•laps in the Uffiec of the C'uunty Recorder of said Oranbc C'nunty, inchuled within a ;trip of land I'_.U(1 feet wide, theucEtheasterly line of which is dcs~ribccl as loilows: 131~=C>t?~I~IN(; ul a ]quint in the soutlt~~~cstcrly lint, oC s;rid Parcel 2 distant alom~ laic] line North 49°20'52" 1•Vest 13.23 feet from tho southeasterly terminus of that certain course in said southtvcstcrly lint shown as "1\orth X19°20'58" i4'cst 341.30 lcct"; thence North 85°49'3U" East 38.(]7 feet to a line parallel with and 1 L24 feet northwesterly of the southeasterly line of said Parcel 2; thence ulung said parallel line North 4U'36'3G" East 509.24 feel; thence `orth 39°39'19" t:ast 33.73 feet to the southwesterly lino of that certain lsarecl of ]and described in a deed to the Atchison, Topeka and S;tnta Pc Railway C'ornpany recorded June !5, !f)GG in Gook ?c)6?., Puac GZ of Ufticial ltecurds in said Office of the t'ounty Recorder of Urant;c County. Said strip shall be lengthened ur shurtctted so 7s to terminate nurthc~tsterly in said southwesterly line c>f said deed t4 the :ltchiscm; Topeka and Santa Fc Railway Company and sauthweslcrly in the southwesterly line of said Parcel 2. CO\7':il!\I:VG: li,9K4 Square Fcet, S1.~13.J1+.(°f TO ali Covenants, Rights, Rights-ut=1i'ay and @ascntcnts ot'Reu:~rd. >!;XIilI31T'`)<i" attaches! and by this rcf'erencc tnaelc a part hereof. SAND S~9GF~ KURT R. ~ _ ~l ! ZO aS --r TROXELL Kurt R. "l'ruxell, L.S. 7854 [)ate i4 7854 ~ CA~i~o Page 8 of 16 25A-20 Attachment 2 r,or~: IrdC[CA7ES RECORD CA G1 PER P.!d. N0. gQ-;87, a. ~ . a: s.r'. ~s~ar. ~ a~ ao' ~ .~Q I . °ER ~9.R. 7962/62 ~ .--f I I I f 3 I S'lf'I._'' LINE: - ~ ~I ~2' M f C'~IZ D , h . 7962/6?- - ? > i. ~ I 11.2!' ~ j i ?;~,RCr ~ M:~1F' h1O, 9~_.. I X37 r f w ~ v .n AP N0.430-181-2fi ~ N o I ~ ~n4.).c~ i,.i t1J I {2850 SOUTH RED FiILL Ab~ENUF..) ~ i' ~W ~ o ~ ~ + I DATA TABLE ~ 1 0 ~ . T~ I r7 ~ c~ NC~ BRNG/DELTA RAD1i1S LENGIH v~ I :t~ ~-----__o__-_..---------- z Q a, ~o ~ 1 N49 2,0'52"YI 13.23' 2 N85°49'30"E 38.07' ~ 3 N39°39'19"E 33.73' a LUl ~ i 2' ~ ~ 30' (30' I 60' 111 c I ti.24' ~~C, SVi'LY LINT PCL. 2 7. ~ r7 N49 20541.30 M-" I ~ ry~ (Nh9°20'58"W 341,,30,,,____, _ Nd9°2O'S2"W"W 657.23' {N~19'20'58"W 657.23') C~DEERE AVENUE P•~•~~. EXHIBIT ~B" , rou:ca~urvA AP N0.436.181-28 SHEET 10F 1 SHEET "1,/.h NINp ~ ptplpN (1 G0N l7p y~Ylp•1 FOR TEMPORARY LANDSCAPE EASEMENT RED lint AVENUE ~ ~ ~ a7ZS KTOp /cncwAY (~(~NCO REDHILL, LLC R.++E, currn-u ~aas•rn~ - ~ C O N S U LTI N C~ ow °nssOS . p°x yyar~sYq ..w.pty-,ca,,, CONTAINING: 8,984 SQUARE FEET PE$RL'ARY 1.. iC0f3 N. IQ-104Q41 Page 9 of 16 25A-21 Attachment 2 EXHIBIT C Revision 1 ;o~oo~~ ®Iobo NR i ' ~i ~ ~ ~ y~~~ CIA I DEERE AVENUE g ~ I ~ ~ z f _ 9. ~ ppI* n a~ 9 51 ~ ! H: 1 z I g R~ 'A~Ai~ m I la a~aF a F ~ 84° ..q ~IFI~ E~~!~~~ ~S I I ~ ~i~s~' ~ did~d d ~ i I 1 1 ~ l j 4 F. F :!i ~ I I ~ ~ ~ I I~~~' _L. I ~Idfdaad~d881 r m alil~g ~ F-f + ~ ~ ~({~a n I I ~ ~ 6."~.~. O @• 1 ~ ~ mS i i ~ ~ 1 d d d~d'd d did ~ ~ ~6~a ~o ~"1 Ao I S ° I ' : ~4 I ' 1 i I 4 m i _ ~ I' ~ r I r i s' i f~Tl I i y z j g c I ' ¦N ~ fTl N - Y \ i I I ~ a r' i~ i I I ~ ,d I ____i- ~ ~ _ - -ds ~ ~ ' ! Y:- I 3 OEI I i ~f 'oyl 1 ; ~ 8`= I ; tt _~I I ' {~ti i ~ Fo~~~ S% I- ~ I I I Z U$ r ' n 31 ~ I i ' - N @I ~ ~ 11 ~ r zz~t Rai ! k; ~ i I ~j i a I a ~ , 1- 1 ~ ; _ ~ C ly Y MATCHLINE SEE SHEET lP-O6 Page 10 of 16 ~I 25A-22 Attachment 2 EXHIBIT C Revision 2 i C .ERE l1V= NUE i .L ~ \r ~ ~ i i i ~ i A i ~ i Q A 1 1 ; 1 ~ 1 t; S t 1 ' . 1 ,y ~ 1 j 1 1 ~ ' ~1 ' ~ ~ m ~ s N ~ i` g; aQ Z f.. s < ~ ~ y~ n O C ! i/ ~ ~ ~ ~ ~ ~ Z o ~ i ~~i ~ _ i < i ~ ~ R 9~ r. ° su ~ ~ ~ l ! r ' ~ ~ 9 i a a I ~ A ~ #g~3 ~ ' ~ x , o ~ . t ~a~: _ _ Page 11 of 16 25A-23 Attachment 2 EXHIBIT C Revision 3 __._-~_..__._-h.__._.-y-._-._.._._____._.__.___..___F i ~=.FRE AV= NUF i i - i ~ i i a i v o Y A i i ~ ~ ~ ~ i i ~ i i F i i o~ o i ~ ~A ~ \ n i ~ o i R N T R-. x~ °v° zi ~ R~.,.,., FF ~5 o r m ~ _ = i i 36 ~p C7 n C. r ~ t Y .A. s~ Z i ~ Q ' y ~ ^A y o m i p c ! _ ~ ~ i i z~ ~ ~ ~ Z i ~ i i ~ ~S i $ ~ _Li.. i. ~'Y. R i V ~ i i h I ~ _ - ~ ~ ~F ~ ~ a ~ ~ ~ ~ ' ~ ~ ~ > i ~ - - i i Page 12 of 16 25A-24 Attachment 2 EXHIBIT C Revision 4 i io ~ i.,;., j_ ~ , LIE=KE AVENUE I - ~ i~ \ i _ ' ~ A 1 n^A•' 0 1 v ~ 4.. I _ I ~ 1 1 11 ' 7 1 1 i i q ~ _ i R ~ i ~ _ ~t .0 N i ~R ry• o H ~ y as 7n N 1 ~ ~8 C C1 ~ i.~..SS ~ F: ~ z ~ i A S R p~~ A O ~ ~ R ~~N m ro i ~ o ~ ~ c'~ ~ r ~ o m ~ ~ , ' ~ i Yo i f is ~ R :y w i !E ~ ; s 5 j ; ~ ~ a . ~ i F" ~ p p g~a~, e . i R~ ~i ~ lr ~ I ~ 1 Page 13 of 16 25A-25 Attachment 3 LICENSE AND RIGHT OF ENTRY Kinco Redhil, LLC, a California limited liability company (hereinafter referred to as "Licensor, does hereby grant to City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and/or laws of the State of California, its officers, agents, employees or representatives (collectively referred to as the "Licensee'), the right to enter and construct street, sidewalk and landscaping improvements necessary for the Dyer Road/Barranca Parkway/Redhill Avenue Street widening project as shown on the real property described as follows: SEE ATTACHMENT 1 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF This permission is granted subject to the follov~ing conditions being fulfilled by City: (A) City to deposit $491,335, plus closing costs into escrow with First American Title Insurance Company. (B) Permanent Street Improvements will be constructed in the area identified in the Attachment 1, Exhibit "A and "B" drawings. (C) During construction of driveway approaches, access to the business will be maintained at all times. In some cases, construction of one-hall of a driveway approach at a time may be required. In this case, the contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed. At no time ~ksall the contractor block access to the business during construction. (D) The Licensee agrees to indemnify and hold harmless, Licensor, from any liability arising out of the Licensee's exercise of this License and Right-of-Entry. The Licensee further agrees to repair any damage to said property caused by the exercise of this License and Right of Entry at its sole cost and expense and to restore said property, with the exception of the improvements left thereon, as nearly as practicable to the state in which it existed prior to the use of the property by the Licensee. (E) No right of entry to existing buildings is conveyed by this instrument. This License and Right of Entry shall expire upon completion of said construction work, and in any event, no later than December 31, 2011, unless extended by written agreement between the undersigned and the Licensee. LICENSEE: CITY OF SANTA ANA LICENSOR: Kinco Redhill, LLC a charter city and municipal corporaton duly A California limited liability company organized and existing under the Constitution and laws of the State of BY California Name: Title: BY: David N. Ream City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney BY: Date Jose Sandoval Chief Assistant City Attorney Page 14 of 16 25A-26 Attac~lrlent 3 EXFITkI'1' LBG:LL DF.SC.'C21T''f11>N Psge 1 of l RE:D I11LT..a1'lNU1•: T(tttt Cectuin parcel nF 1 m9 ~ititatt;rl in ttie. C.'ity taF Sc.nLt Ina, l'nunt}~ o€ (h;lT;i;c, ~tat,~ .p( t';ili(%,Ilil i l,.i~l ~hsl s,•ouf f z I r,j J tr 1. i l ui.(`I I'+1 ~ i'~i. ! ti t ~a l lilc,l in tier}; ~ r~ p a rill ;i fs,iJ~ Ilti~::iil' ~4-; I util 4~ i~f l'ar:1~ ~1 ihs m this (.ilGii. , I'thc (a,urd~ I+is.orfb~r ul ti,tiri C1ranC+c (r~f.ntu, tli.a,nbcd t, l.;llfi,;ti; liEGl:\:~1~C at tlu .e;;taheastcrl;; I,Itt;irus at~ Ihar cctt;tin cuurs-~ in Ilse soutll~,~r~tcrly €inu r~l~ .:aid Pruc:el 2 shown as "North a9',~,U'i,;" li•'cst ,ia I,?ii icet' ; lhcrce alnn_: r, line North 4!T"?r}'43" 4Vcs( I _ tid sUUli:u'caerl.:; ~,vith an<l l l.'q (ccl r;urlhacrtrrly r~f~ihlc~sCal1 .r„(c ly•line c5f sail 1'~rccll2;~tthcnCCta(oF~'su'? . parallel Iine ~~ottit dQ''iG,jS•. Lazt Sfi9,24 Jeet' thence \orth 39''±f' f ~ j satidttvcsccrl)~ line of fnat certain tncl nt ]anlf dcsct'ibcd in a decd tot the 1k:hi3i:~n3'I'ncr~a alt i P' Santa Fu kail~.va~~ Cutnpany rec4r 1,eil June li, 19r,6 nt Eiouk 71)62. > in said C)fficc of lttc County Rccnrdet' of Urange County; lltencd all, S shi~ltef ullhwc~,terlvllinc South a9°=(i'S" Past Il.BU ket !o the si,utheasterly Zinc of said Parcta thence along alts sc~uthuas(crly !inc oC said p;arcci South li)-;3fi':)r" 4Vcs; )4~L?8 foci anrE S~tuttt 3~'37'y?'• 1~\'e;l .15.17 fci•t t~s tha ['O1NT OF Ti?,CINiVL~JC. ' (-ONT:LININC;: fi,_(i~ Square Fcet.. tiCIB.1~C'1"T'U aft (;ovcnants, Ril;ttts, Rikltts-uf ti4'ay anti E;tsiani;ats i;f [:ccnn . l;:\HIBI'T °iIl";3ttach~aJ an+3 tay Q,is rcForenc4 nf,ade a port hcrritP, I ~~~Q I.ANp S6~G F ' KUR7 R. ~ 'urt It. l rux:ll, L.S. 7R~.{ L~ tc * 7854 ~ ~~9~ r?/3tlZ~~~\T ~~f CA1-~E~ Page 15 0(16 i i 25A-27 Attachment 3 'o,-- . ~ I Fir. 'J. F. '-ti: i .,.I ~ _l_ ~ -r . ~ , _ , ~ ~ I , i f I i l:ti . ~ ~ i u. i I I ~i~.. `J L!1 , lJ ,~a_.rI. ~:1~~'~I ICI ~:1, 1.! .~L,! ,.'J, . al-~ , Q ! 1 " - I a ~ cc it J F:5('..1: L, iii ~ ~u: J .~S AP N0.430-181-26 ~ ; ~ ~ v C: ij 1 i"L86r,~ Sr:IJTH F.ECi HT[.[. A''r;:ru;L? z Fem. I i : C3~ to ~ n.ara Ts.J~L ,...I ,c. s. u; ~kUJ' ;=1Fi•1C'CF_! f.i ?AODJ.i LF.`•1GTH ~ ~ 1 PI•f9'2J'S1"H 1.Tr 23• ~ ~ I 2 Pt'?"~y''9"t': 3.3.73' i~.i 4 (x,5:'3?'S2"W 35.37. } c~ c'-- ~ k.5`,'S1.»5..E 35.37'; 3C~1-3~'~ fD' I t i ._2'[_ _ ?l8 49' 3-J"E ~ ~ n • . .14~y' ifj' S' " .1 L' ` -t•1C9'20'52"P. 6:7.2.:' N49'7U"°8°n G.57.2.5' y...-- 1 ~DE~RE AVENUE P,0:8,..- EXHIBIT °B° 314TCtt TD ACCOMPANYA LL-/9~L. DE9CRIM70P1 FON AP N0.436.181.26 SHEET 1 OF 7 SHEET RED HILL AVENUE •~''T, y~MyY ~ ~KINCOREDHILL.lLC} coN9u~r~r"a u,:.o>rcn.FAxr..r,:mr.,",.,•!r'x..~ CONTAINING: 8,462 SQUARE FEET Yaec l6 of IC 25A-28 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this _ day of , 2010, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer"), and HPT CW Properties Trust. a Maryland real estate investment trust (hereinafter called "Seller"), regardless of number or gender; WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as "said real property" or the "Property') described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE ATTACHMENT 1, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 2600 Redhill, Santa Ana, CA) (APN 430-221-19) Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Convevance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, the date specified by City as herein provided. City shalt execute this Agreement within thirty (30) days after City Council approval and notify Seller promptly once this Agreement has been approved and executed as aforesaid. City shall specify the date on which the conveyance shall occur in a written notice delivered to Seller at least ten (10) business days prior to the actual conveyance date (which date shall occur within ninety (90) days from and after the date on which the City has approved the Agreement). I 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below; provided, however, Seller makes no covenants or warranties as to its title to said real property except as set forth in the Grant Deed delivered pursuant hereto. Page 1 of 24 25A-29 (b) Simultaneously with the conveyance of the real property, Seller shall also convey to City a temporary landscape easement as described in greater detail in Attachment 2, attached hereto and by this reference made a part hereof. 3. Title Insurance. Seller agrees to deliver to City, at City's sole cost and expense in accordance with Section 4 below, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of ONE MILLION SEVENHUNDRED THREE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100 DOLLARS ($1,703,585) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, other than any matters of record, as shown in the Attachment 4, attached hereto and incorporated herein by this reference made a part hereof. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 30 days of the City's execution of this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Attachment 3 attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Attachment 3 of the General Provisions of this Agreement. 5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation ~i Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. Page 2 of 24 25A-30 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of ONE MILLION SEVENHUNDRED THREE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100 DOLLARS ($1,703,585). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Recordation of the Deed conveying said real property to City, (b) The title company's irrevocable commitment to issue a title insurance policy to City in accordance with the provisions of Section 3 above. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Waiver of Potential Violations. City hereby acknowledges that Seller is entering into this Agreement and conveying the Property to City in lieu of requiring the City to pursue condemnation proceedings with respect to the Property and that, following the closing of the transactions contemplated hereby, Seller's remaining property, may not comply with all municipal legal requirements (including without limitation, zoning and parking requirements) applicable thereto. City hereby waives any such non-compliance resulting from the closing of the transactions contemplated hereby, which waiver shall survive at the closing. . 9. Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs. Assigns. Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. City agrees to exercise such access rights in a manner so as not to unreasonably disturb the operation of the real property. City hereby agrees to indemnify, defend and hold harmless Seller from and against any loss, claim or damage incurred or suffered by Seller in connection with the exercise of such inspection rights. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages. 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: Page 3 of 24 25A-31 REIT Management and Research Andrew Strain 400 Centre Street Newton, MA 02458 15. Exceptions. City agrees to accept title to said real property subject to the matters described in greater detail in Attachment 4, attached hereto and by this reference made a part hereof. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitute said acceptance and approval. 18. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 19. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 20. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 22. No Reliance By One Partv On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 23. No Third Partv Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 24. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 25. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 26. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, Page 4 of 24 25A-32 for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 27. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 28. Condition of Proaertv. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE DELIVERED BY SELLER TO CITY AT THE CLOSING, SELLER HAS NOT MADE, AND CITY HAS NOT RELIED ON: ANY INFORMATION, PROMISE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PROPERTY TO BE CONVEYED HEREUNDER (WHETHER MADE BY SELLER, ON SELLER'S BEHALF OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, THE PHYSICAL CONDITION OF THE PROPERTY, TITLE TO OR THE BOUNDARIES OF THE PROPERTY, PEST CONTROL MATTERS, SOIL CONDITIONS, THE PRESENCE, EXISTENCE OR ABSENCE OF HAZARDOUS MATERIALS, TOXIC SUBSTANCES OR OTHER ENVIRONMENTAL MATTERS, COMPLIANCE WITH BUILDING, HEALTH, SAFETY, LAND USE AND ZONING LAWS, REGULATIONS AND ORDERS, STRUCTURAL AND OTHER ENGINEERING CHARACTERISTICS, TRAFFIC PATTERNS, MARKET DATA, ECONOMIC CONDITIONS OR PROJECTIONS, THE ADEQUACY OF THE PROPERTY FOR CITY'S INTENDED USE, AND ANY OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE MARKET AND PHYSICAL ENVIRONMENTS IN WHICH IT IS LOCATED. THIS SECTION 28 SHALL SURVIVE THE CLOSING. 29. Disclosure Notice. City and Seller acknowledge that City hereby waives any requirement that Seller disclose if the Property lies within any natural hazard areas or zones. 30. Environmental Reliance. City hereby acknowledges and agrees that Seller previously conducted certain inquiries and investigations respecting the environmental condition of the Property and in connection therewith obtained a Phase I Environmental Site Assessment, dated as of May 22, 2003, prepared by ATC Associates Inc. (the "Environmental Report"). City agrees further that for purposes of California Health and Safety Code Section 25359.7, Seller has acted reasonably in relying solely upon the Environmental Report and the delivery of such report constitutes written notice to City under such code section. 31. Failure to Close. IF ESCROW FAILS TO CLOSE DUE TO A DEFAULT BY EITHER PARTY UNDER THIS AGREEMENT, THE PARTIES AGREE THAT THE NON-DEFAULTING PARTY'S SOLE AND EXCLUSIVE REMEDIES SHALL BE: (a) TO SEEK AN ACTION FOR SPECIFIC PERFORMANCE OF THE OTHER PARTY'S I'~ OBLIGATIONS HEREUNDER (WHICH ACTION FOR SPECIFIC PERFORMANCE MUST BE FILED AND SERVED UPON SUCH OTHER PARTY WITHIN THIRTY (30) DAYS AFTER THE FAILURE TO CLOSE), OR (b) TO TERMINATE THIS AGREEMENT (IN WHICH CASE, EXCEPT AS OTHERWISE SET FORTH HEREIN AS EXPRESSLY SURVIVING A TERMINATION OF THIS AGREEMENT AND THE PARTIES' DUTIES UNDER THIS SECTION, THE RESPECTIVE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL FORTHWITH TERMINATE WITHOUT FURTHER LIABILITY) AND RECOVER, AS LIQUIDATED DAMAGES THE AMOUNT OF $25,000. NEITHER PARTY SHALL HAVE NO RIGHT TO RECOVER ANY LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Page 5 of 24 25A-33 EXCEPT FOR THE RECOVERY BY A PREVAILING PARTY OF ITS ATTORNEYS' FEES AND COSTS, AS PERMITTED HEREIN, EACH PARTY HEREBY WAIVES AND RELINQUISHES ALL CLAIMS FOR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, CONSEQUENTIAL AND INCIDENTAL DAMAGES ARISING BY REASON OF THE OTHER PARTY'S DEFAULT HEREUNDER. SUCH LIQUIDATED DAMAGE AMOUNTS SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF THE NON-DEFAULTING PARTY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE AND SHALL CONSTITUTE SUCH PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR THE OTHER PARTY'S FAILURE TO CLOSE. BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE AND AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN OR UNKNOWN, IT WOULD BE EXTREMELY DIFFICULT, COSTLY AND IMPRACTICAL TO ESTABLISH DAMAGES FOR EITHER PARTY. ACCORDINGLY, BOTH CITY AND SELLER, BY THEIR RESPECTIVE INITIALS SET FORTH BELOW, DO HEREBY ACKNOWLEDGE AND AGREE THAT TERMS SET FORTH IN THIS SECTION 32 ARE NEGOTIATED AND REASONABLE AND INTENDED TO BE LIQUIDATED DAMAGES. CITY'S INITIALS SELLER'S INITIALS 32. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST OF SELLER, A COPY OF WHICH IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT CW PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER SUCH DECLARATION OF TRUST COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE SELLER. ALL PERSONS DEALING WITH SELLER, IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF SELLER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. Page 6 of 24 25A-34 The parties have executed this Agreement as of the date written below. SELLER: HPT CW Properties Trust, a Maryland real estate investment trust By Its: CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 7 of 24 25A-35 Attachment 1 Pape 1 of 2 I.,EGAI.~ DF.SC~RIP"TION AP NO.43f3-22I-1E3 [3YER ROAD AtiD RE:I) HII.,I:.; AVE1VLk' {E{I'"1' C"4'~' PROPIIRIIGS TRGS'i`) That certain parcel of land ;situated in the City of Santa Antr, County of 4rattfe, State of CaNliarna, facing that portiran rat' P»rcel 3 cat' [-at t..ine Acijustrncnt I.l. ~a7-(123, . rec°ordcd June l 1, 1991T as itts#ttitntcnt No. 199801348421 of Cfficial l~eccards its the t~f~cc: of the C".otntty Recorder of said C7range cownty, described as follows: C(?1b9A1ENC[lYG at the ittterscx:tiran of the centerline of t3ycr Road w-itlt the. ccatterlinc of Rrxl I111 .~14•ettuc; as shown on a map tiled in Book 4t, Pagr: 34 of Parcel ,h+laps in said C.lf'fice o#` thr; (:aunty Re~xyrrler t~f i7ran~;e County; thence along the centerline of Red Bill tlvenue as shown on said parcel Wrap North 40~3#a'36 Last 30.{1t1 feet to the southwesterly line of L.ot l OS of twine's Subdit°ision as shown on said parcel snap; thence continuing along said centerlirtc t7f Red Ili [l Avenue Norttt 40°3?'S3" Fast 45?.00 fr::et eta the southeasterly prolongation of the nrarthcastcrly tine raf said Part;el l raf I..ot line Adjtts#ment No. LL 9?-t)23; thence along said prolongation and said northeasterly line North 40'20'32'° West ?4.55 feet to the TRL9~ POINT OF` BEGINNING; thtrrtce ir:avitti; said at7rtlteastcrly lute 5auth 40°27'49" Fast IC.G(i feet tea a line parallel with and ?4.54 feet ncartltwcsterly o1` said centerline of Reri hill tlve:nue; thettet along said parallel line South 40°3T53" West 3b9.09 feet, thence South 85°38'40'" Wept 38.19 ft;ct to a }inC parallel with attd 13.33 ft:~t northeasterly o'f the centerline of l7yer Rraacl as sttrnvn an said parcel a~t~la; thence along said parallel lint; ~lorth 49"'LU'32" 6'Vest 274.30 feet to the northwesterly lino of said Parcel 1; thence along said northwesterly line South 4(1°39'28" West 19,33 feet to the norheasterly ripltt-of=w•ay of 13ycr Road as dest;~ribed in that certain dtaeumc:nt. recorded Junc 11, I098 as Instrurnryrtt Na. 1908t13fi#3023 of Official Records in said Ufficc: of'the Ccaunty Rer:<arrler of Ot-tttagc County; Chertc:t; along said northeasterly right-of=way and the taortltw•4sterly riF;ltt-of--way of lied hill Avenue as descriltcd in those certain. drtcurrtent_ti rcectrdc~tl June t 1998 as lnstrumcnt Nos. 199843b8424 and 19980368{125, boih raf C}t~ic.ial Records in said C)llrce caf the County Recorder of Uranf;e County, through the folbowing courses;: South 49°2.(1'32" East. 277.€3.2 feet; thence North 8S"39'f)3" East 35.34 fort; ehent:t» North40G3?'53"' East 245.4ti feet to the hcgia.ttinf; raf a tangent carve concave southeasterly and having a radio;; of l 12.25 ft:et; thence along said tatrve northwttsterly :13,43 fetrt through a central angle of 17°(1.3'42'" to a point of reverse corvaturs; with a curer; concatve northwesterly std braving ~ a radius of 02.25 fora, a radial line of said au?ve front said point bears NorLlt 32°! 8'25" West; thence aIr>ttg said curve nttriheastrrrly 27.47 fct;t through a central angle of 1?°{13'42"; Ehenee Page 8 of 24 25A-36 Attachment 1 A,t' No. 430-221-1~ PaKe 2 of 2 Ayer Road and Red Hill avenue {1IPT CW Fropertie~ Tr~~st) E!~hibil "A" tan}~ent fi~om said curve North 4U°3T53" L-a t '1%12.4 -feet tes the nc»~thea:~terly line cif ~aad Parcel 1; thence along said northeasterly line North 4~~°~t)"~2"~'4"~e~t IU,SS .feet #n tt~e TR1iE; Pi)INT t)iF BEGINNING. CONTt~II`31'~C: f?,075 Sciuare Feet. SllIiJCCT TO ail Ccwen~ants, Ri~,tw, I2iShts-o[ Way and >tiaseyr?ents of Ree~ord, >XIIIBi'I' "Ii" attachee# and by tlxis reference made a pt~rt hereKa#: ~~~a ~Aldi3 S~~LF c>``` Kl1ft1" R. Kurt it. 't'roxell, L.S. ?gS4 Date 7'854 ~ ~ ~z~~~~~1er ~~QF CA1.`~ Page 9 of 24 25A-37 Attachment 1 o~Ta T,a~LE ---__-..m - ~hfG/DEh i A RAC IUS -LEN6TN I1~ICATES RECORO DATA PER L . L . A , 97°U2:'i , -------____m....._-..------------------..._ INSTRtNT N0. 1998036802.1, O.R. 1 N49°20'32"W 74.55' 2 17`03'42" 92,25' 27.47' 3 17°03'42" 712.25' 33.43' s r. 4 N$5`39'03"E 35.34' tlY720° t$i. 5 S40° 39' 78"YV 79.33 ° .ICI' 30' I ~ 60 ` . fi P149'20°32"W 10.55' 6 ~ {N49°21'16"W 375:72'} i NE' LY LINE PCI 1 ~ y-- ~ ~ is N4(3` 27' 4~J"E~ ~ ~ a~ca 1s..1 16.66' `Y C~77 tY7 X C7 f T.PA.B. CV 9^- jj W t 74. J' oYr+'y J ~ JJ 70.5 ~ ~z) rJ . ~.~~;~L, ~ __N32"_18',25"w__w.. ~ ~ ~...~T' L1Nr At3JUSTMc~f"i' CIO. LL 9.l-~~~ >-1 = ce 3 r. ,n F- o ~ ~~4+1W M ~ ~ AP430-221-18 ~ ~ (26c1c7 ~~rH RE:D NIl_I_ av~r~) ~ ~ ~ }w U ~13J C,3 J Vx1 ~ 1 Z ~+i PF201:'OSED R/W 1.50' ~ ~ w 13 ' N~'A ~ Sfi5°38~d0"K rn ~ 38.19' 73 60' ~ ~ 43' 30' I exlsT ~/w f'I~R 1MiI. N49°20`32"W 274.30' 549`20 32"E 277.82' - q~~ CITY B1°t7RY. NE'LY RjW i'ER INST. NO. 79980368023, O.R. CITY TUSfiIN C~ DYER ROAD sw' LY LI1~ LoT 105 -CITY I~+i~1~Y. % r _..._._._..._.v._._IRV[4`3E'a 5~.~3. , M.M. 1/88 CITY OF° IRVINE N49°20'32"N' 1321.72. ~ ~ {N49`21' 16"W 1321.68' } N4I1°36':I6"E EXH(B!T ~B~ PO.Ci. I ( Oa 15"E} PER a~Erai roArca~iMnA ~ ~ P .M . F3. 48/34 } BEY 10F 1 SHEEP AP NO.430.221-19 ,N.,.w~. o~ a„ . c , - (DY~E~R~ROAD AND Rry®'1 H~IpLt AVENIiE ~ ~rs~µ:or, Puxwa. \iw . V7f f fWJ1'GRIIE~ /R~ M;A'F CKt"~OA7A 43dib-3047 G Q N SU LTI N Q 4wt7aawa . Ana COA7333A7 . +wnr.~cmn CONTAJNING:8,075SQUAIREFEEI` Fr~uxr 2ooe ~.w, io-ac+oat N: TA iG4p10t1 \CAS70 w~'4V4\£7(Ni~iS\1011-~Y- .DWG AiARR15 i ~ S' 7Il ~ Page 10 of 24 25A-38 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCE L AGENCY(IES) APPROVED BY DESCRIPTION DESCRIPTION A.P. R1W MAP PROJECT TAXES PUBLIC WORKS DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER 430-221-19 Portion of 2600 Redhill Avenue, Santa Ana, California Attachment 2 TEMPORARY LANDSCAPE EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, HPT CW Properties Trust, a Maryland real estate investment trust, Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, a temporary easement for public right-of-way purposes for the right to plant, maintain, replace, or remove landscaping in, upon, over and across that certain real property in the City of Santa Ana, County of Orange, State of California, located at 2600 Redhill Avenue, Santa Ana„ legally described as follows: SEE ATTACHMENT 2, EXHBIT "A" and "B" -LEGAL, ATTACHED HERETO; AND BY THIS REFERENCE MADE A PART HEREOF: This permission is granted subject to the following conditions being fulfilled by City: (A) Improvements will be constructed in the areas as shown in Attachment 2, Exhibit B, attached hereto and made part hereof. Landscape improvements and sign relocations will be constructed as shown in Attachment 2, Exhibit C. Drainage inlets will be installed in the areas as shown in Attachment 2, Exhibit D and HPT CW Properties Trust will be responsible for maintaining such inlets free of debris and other matter. (B) During construction of driveway approaches, full and complete access to the business will be maintained at all times. In some cases, construction of one-half of a driveway approach at a time may be required- to maintain such access. In this case, the City or the applicable contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed _and shall provide appropriate signage to direct customers and guests to the business. At no time, shall the City or the contractor block access to the business during construction. No fences shall be constructed on or around the property in connection with such construction. (C) City shall indemnify the undersigned against and hold the undersigned harmless against any loss of or damage to any property, or injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City or its contractors of by any act or omission for which the City or its contractors is liable in the exercise of the rights herein granted. (D) All work performed by the City or its contractors hereunder shall be performed in a good and workmanlike manner and so as not to otherwise unreasonably interfere with the business. The City shall not permit any liens to be imposed against the property in connection with any such work. Page 11 of 24 25A-39 (E) Except as shown in the Attachent 2, Exhibit B and C, the work to be performed by the City or its contractors hereunder, the City shall restore the property (as improved hereby) to substantially the same condition as it was in prior to the commencement of such work. Without limiting the foregoing, the City shall cause any existing palm trees which are removed in connection with the exercise of its rights under this easement to be replaced with palm trees of similar value, height and maturity. It is understood that the period of use of said easement shall exist for a period of no more than 12 months and shall commence with the first entry onto owner's property by City's contractor. Upon completion of street widening work, the Easement Area shall be maintained with landscaping in compliance with City ordinances as applicable to this site. This easement shall terminate upon completion of said construction and in any event shall cease and terminate not later than December 31, 2011. THE DECLARATION OF TRUST OF HPT CW PROPERTIES TRUST, A COPY OF WHICH IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT CW PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER SUCH DECLARATION OF TRUST COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT CW PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE HPT CW PROPERTIES TRUST. ALL PERSONS DEALING WITH HPT CW PROPERTIES TRUST, IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF HPT CW PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. HPT CW Properties Trust, a Maryland Real Estate Investment Trust BY~ Date: .2009 Its: STATE OF CALIFORNIA }ss. COUNTY OF } On 2009, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature Signature of Notary Public place notary seal above Page 12 of 24 25A-40 Attachment 2 E~~IIBIT "A" Page 1 of I LEGAL DESC"RIPTIUN AP NO.430-22:1-I4 FUR "I'EhIPU.RARY LANDSCAPE,. EASEI4IF.N"I' DYER RUAD AND REll IIII.I.~ AVENUE (III'T C~V PROPERTIES 'I'RL`ST) That certain. parcel crf land situated in the City of Santa Ana, County of Orange, State of C<+lifurnife, bung that poztlern cif Par~eT t of f..ot Line Adjustmont L,La 97-t)?3, rccrardcct June l 199Fi as Instrument No, 19980368021 of pfficial Rei;ords in the (7ffire irf the Cirunty Rciaordc;r ofsaid grange county, describe as follows: CO)<~i\IE~IC'ING at the intersce:tian of the centerline of Uycr Raaci with the; centerline of Reef Hill Avenue as shown an a reap filets in Hoak A8, Page 34 of Parcel 1~4aps in said Office of the County Rei:trrder of prarngir County; thence along the centerline of Iced hill Avenue as shown un said. pares;] m.ap North 4()°36'36 East 30.00 feet ter the suuthwesti;rly lino of lot I05 trf Irvine's Subdivisie7t7 as shown un saki parcel map; thence continuing along said centerline of Reel Hill Avenue Kurth 40°37`53" East 457.00 feet to the southeasterly prulongatitrn of the ttortheasteriy line irf said Parcel 1 of Lot Line Adjustment loo. LL 97-U?3; thence along said prolongation and said northeasterly line North 49°2U'32" West 74.55 feet. to the 7'ItIJ_~; PUIN'I' OE BE.GIIV~tING; thcnci; leaving said northcasti,~rly line: South 40°27'4}" p'.a5t lb.6b feet tit a line iraralle;l ~vitil and 74.50 feet northwesterly of said centerline of Ruf Hill r~vexnue; thene,e akrng said lrarallcl line Scruth 4t7°.37`53" West 369,9} feet; thong; South 85"38'40" 4w'est 35.19 fei:t tit a line parallLl with anil 73.33 fcret ncre~theasterly of thi; i;tnterti9tc of Dyer Road as shtrwn on said parcel neap, tliencc along said parallel line Kurth 49°211`32" We~~:t :?74.3tt fee~:t to the northwi~stcrly lint: irf said Parcel l; tlri;nee alirng said northwesterly line Nortlr 40°39'28" East 40.02 feet., thence leaving saki northwesterly litre Soafh 5Cl"t)~}'23" bust il.fil feet to a point on a non-tangent curve concave northeasterfy and having a radius of 40.00 feetx a radial line of` said curve frown said point bears South 7906'42" Cast, the southeasterly terminus of said curve being tangent tit a line parallel with at~d 93.33 feet northeaste;riy irI` the i;entt~rline of said Uycr Road; thence along said cun•e southerly 42.OS feet through a cc~~tral ankle of 60~ i 3"50" ter said paint of tangency; thence along said parallel line South 49~20'3~" East 237.47 feet; thence; I~torth40"37'53"' Fast 377.00 feet; thence South 49°32'1 l'" East 5.00 foot, thence ~torth 40°27'49" Ias# 16.66 feet to the northeasterly line of said Parcel l; thence along said nortlicasterly line South 49"]0'32" East. 15.00 feet to tl~c TRUE POINT OE BECINIVING. COiV I"AINII~IG: 13,$27 Square l'CCt. SUBJECT TU all Covenants, Rights, Rights-of=L~Fay and Easi-me>~nts crf 1 ~~d ~,ANp ~;J~HIBI'T cc8~ attached and by ths's reference made; a part hereof: g ~ y~ KURT R. `r'`U TROXEIl ~ ~ / Kurt R. `l"roxell, f:~.S. 7854 ~.~z_ ate ~ 7'854 rt~~aa€:E~.~~a~~taa~r~~aa~nissa~~tstin~oa~•[.t~t~-es~,~~c - f219i{'~' ~'~~t '9 ~~F GA1.~~~ Page 13 of 24 2 5A-41 Attachment 2 E3ATA TA6LE NO BRNG/DELTA RARIUS LE'~TH l 1 TNa9'2O'32n~______________74~.55' INC7IGATES RECORD I}ATA PER L..L.A. N0. I_L 97-023, 2 S4O°27'49"W 16.66' INSTRLfN7 NO. ;99803&8O2i, O.R. 8S'38'4O"~ 38.19' a N4O'33'28"E 4{7.02.' 5 55O't79'23"E 8.6i' i s eQ°i3'SO° 40.00' az.c7~,' T.PA•B. 7 sag°32 i1"~ 5,~` ~o 30' f sa'~ F3 '~I4O'2i 49"E 16.86' ~ 9 S~9°2J'32"E 15.00' _ ~ {Na9'2i`i6"w 316.72') 8 ~ v 7 ~ er ~ ~ i ~ 14 - f ~m ~ ~ ~ a- ~[.l~r; ~t~JU~7~F:NT NCB, t~,l_, 97--C1~3 ~ ~ ~~~Z ~W~~ ,a~. ~ _ AP 43t1~221-19 ~ ~ ~ ~ °w (2600 SOUTN RED HILL AVENUIe) r,,, ~ ~ ~ .,a~ 1 ..r~ a... ~ f _r ~ rn T. ~ ~ j ~ v? " S79°06'4?"F 2© F~ ~ (RAD} 94..5(7,... ~l / ~ r7 _ i.5O' i3 r~ f _ ~ .~._w._ f 4 ~ Sag°2O'32"E 237.97' ~ " 4~H~„3' X3(7` ---EXIST RAW PER INST. Nag'2O'32"W 27a.3O' ° N0. 19980388024, O.R. ~ ~ ~ CITr BNI~ir. n EXIST. RjW INST. ND. 19980:568023, O,R. CITY 0~ TU'STzFF_ I C~,[3YER ROA© sw'Lr LItvE L0T iO5 CITY f7Rr. IRVFNE'S SUB., ~.f~. ifF38 CITY OF IRVI(eE Nas°2O'32"w ~ 1321.72' (+ias`~o' is"w`~~`° j W _ EXHIBIT SBA Na0°38'36"E 30.00' ~rcH~orrrwra PA.C. I I {Nao`~s'3s"~) f'. ~I. F~. 4s034 a~~maa tore . a~ No~I~f~I~ o°~+F,~r ~ aF ~ sl~Er .1N1./"L,L 1~lV ~`4ANNeN® ¦ 6N • C(INPYry.}CTkOV FOR TEMPORARY L/WDSCME FJ49E~IEWT DYER ROAD AND RED HILL AVENUE • r r u7as µ raw r.•cwar (FIPT {:VII PROPERTIES TRUST) +~-acn C d N 3 U LTI N CQ o°¦.r3smw . ~rx oa,.neax+ • wnrnfi'.c°n CONTA~IING,13,82FSQUAREI`~'I' tt, z ~~-1~®~~ rr.~sAT~~ioawas~.c~t~W.~vr~c~E~awirs~,uN+-cx-+~.o+rc s~+uers 21~17bs 6: r7 y.n Page 14 of 24 25A-42 Attachment 2 EXHIBIT C _ wtcn srt sscr ~r-a3 '"f._. ~ d ~ d poi ~ ( _.:c a ? i , Rd ; s ~ ~ ~ ~ M ~~~~~~„~,~y i ~:t ~,~,s.la~ ~ 4 &1~ x ~ x ce: c rY ~ ~i x f '4'a' ~ ~ ~ f ~-Y f D i ! ~ t.+ r~ ~ s s:~ e~~~~~~r ( . N. ~t ~ ( e ~ ~ _ E ~ ~ ' t' ~ ~ ~ . ~ . ~ . ~ t s_~ ~ ~ ~ c a~ , c ~ s~~ ~ 1 ~~T s.~ ~ y 9+ , t r ~ ~ ~ s ~ i ~ ~ C7 F y~. N ~ ~ i 1 A ~ 'h bj F3 s~^ 33 Page 15 of 24 25A-43 Attachment 2 EXHIBIT C ~ ° p~~~~~~~ppAp A~~ ° ~ ~ j'~ ~ I ~~~~~,~~a~ ~ ~ t ~R~4,4" ~Z- ~ ~ ~~~R~ ~11d ~ r ~ ~ j~ i~ ~ ~ ~ r tl 0 ytf tTl ~ ~ i. s y, r„ r 1, ~ A 6 8 N X E ~ ~t. ~ ~ I' ti..;_.. ~ E ' i~ ,G~ ` Y - 91p. 1 I _ 5,9 P ~ ~ ~ 7 + r'~ II _ pF ~ T ~ $ I. ~ ~ V yY ~ i e ~ ~ ~ 7 ~ r ~ ~a~ ~ ~ ~ ~ ! o m~ 3 E ~ ~ ~ w m ~ ~ a t _ ~ Page 16 of 24 2 5A-44 Attachment 2 EXHIBIT D t ~ E' 4 33 ~ ~ 4r. " ~ ~ , ~ i i ? ~ . ~ (s ~ i, a f i~ [ i R3 ' . 1 s' ( F is R~~ F 'S~ ~-r7: ~ tS z,~ „ ~ m ~ ~ t: ~ ~ ~ - ~ i ~ _ - ;s Page 17 of 24 25A-45 Attachment 2 EXHIBIT D f~ , 3 E _ } 3"" d - - x f . ~ € ~I .f,. _ ! is -i' P' > _ t e. t A,~~ _ . _ o ~x ti p` i Page 18 of 24 25A-46 Attachment 3 GENERAL ESCROW PROVISIONS All disbursements shall be made by wire transfer of immediately available funds. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30-day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorne 's fees, suffered or incurred Y by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to ~ any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Page 19 of 24 25A-47 Attachment 4 CLTA PreihytttNery Rtpgtt t't!i'tN Order Number. OSA-3425620 {22) {Rev. 1if06) Page Number: 1 G~ '.i. r~'^=.. First American Title Company sza cWe~c stroec Say t3ernardino, t„A 92401 Order Number: OSA-3425620 {22) Title (~fcer: Matt Hoczks Phor~: (909)380-8738 Fax Na.: {866)566-3980 E-Matt; tnhooks~Jltirstam.com Esaraw OH9cer: Robert senavente Ptxxte: {714)250-4721 ' Fax No,: (714)913-6358 E-Mail: rbenavente~ofirstarttteun ' Buyer: City flf Santa Ana Owner: HPT CW Properties Trust. Property: 2500 South Red Htll Avenue Santa Ana, CA PRELIMINARY REPORT In respsnsr to the elrove. ~ appdntbrs for a PdicY ar t3Ue arsurante, ttMS tomyanY hereby re'PaY., ttsat d iS prpparcd m buee, ar cause W br; Ksued, as of ma lobe heroofr a PdiCD' or ibhcias MTdk 7rtAUranca +ar.~r&ar9 the ialW and the agate or urCerest tfiaein her®ndtes sat irxSh, IrmrMg against lass whkfi maybe ws/ained hY reaasn +N anY defeC, lien or encurnbranca not shown a rattvrad to as an Exception beknr ar rat excluded frtm coverage pursuarH tp tits Drinted Condniorrs aaxf Stipluialdons of ski Panty famrs. The pratted Evteptwns and ExcW4tm tram the gaga .>,rd timsatiau tx+ Covered Rk+s ~ said PdkY ar poACres ere sat fath w fa3riWt A aftadred. 7Ae pdky ~ be bored muy en A#rativn z%a~aa. KiSA'r drfr amount oflrxoarant>'rs kss Ahe+r the! art forth 7n ffiie arblbA~+n +t&usc; d9'Xb mXtsr5SAa76a tlrGXrah'd at Mc r#d~ r7fadlteer fhr COmW+nY ArlYie l»surod a5 A5r e.« reftiradYG?Mk hsutks. i.pn9ptlars on Covered Risks aptri~ris to dra C1tA and AL4A ttatreowner's POIIaCS or Tltk Insurance which estadl~ a C)educt>INa ArnwerN arM a Mavirnmr L3aMar iLreu of UabiwtY rot osttan coverages ere aka sM t in Exhtf3t A. Copies at the potty roams Shah be read. Tlry era avaY~sks ham ore attics whkh ksued thh eepart. leeae read the exoaytk+ns dawn Or refNred tb below and the exceptbns and exdwiars set }mtlr ht Exh~it A M tlf~ ropsrt preNily. Tha exceptlaars and attdusiona an meets Os flrevide y~ with natke ~ msttars whhdk are rat anekrthaterms Mt4Ma thM buwrance Pd~Y and fhadd be ptefuliY cortdfiarad li I it is hnportant to nMe that this pralhninary report is net r written represwrriUkn as to the mndit3on or dale and may not ~ alt hens, derails, and encumbrances aKecUnp title to the tend. TTas repel tarxt any syipkments or amardtrent9 trerato) ~ issued safety fa the ~rPOSa at facNtlt'atirtp the i~aanca of a policy or tkie inSVratiCa aMf na eabiAtY LS assumed liertby. !1 ft k desired tltat NabtAtY be assrxned prier to the ksuante Or a pdity Or tKle in5nranta. a hinder or Convnibnarri sfinuid ba rettuCSCad. RtstAmerrtan Title Page 20 of 24 25A-48 Attachment 4 Order Number: O5A-3925620 {22) Page number: 2 Dated as of November 25, 2009 at 7:30 A.M. The form of Policy of tltie insurance contemplated by this report is: ALTA Standard Owner's Policy 2006 {WRE 6.17-06) A specific request should be made if another form or additional coverage is desired. Tide to said estate or interest at the date hereof is vested in: NFf C4V PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST The estate or interest in the land hereinafter described or referred to covered by this Report ls: A fee as to Parcel{s) A, an easement as to Parcel{s} B. 1'he Land referred bo herein is described as follows: {see attad~ed Legal Destriptlon} At the date hereof exceptions to arverage in addition to the printed Exceptions and. Exdusians in said policy form would be as follows: 1, General and special taxes and assessments for the f>scal year 2009-2010. First Installment: $57,689.48, PAID Penalty: $0.00 Second Installment: $57,689.48, PAYABLE Penalty: $0.00 Tax Rate Area: 11-019 A. P. No.: 430-221-19 2. The lip of suppiernentai taxes, g any, assessed pursuant to Chapter 3.5 wmmencing with Section 75 of ~ Califania Revenue and Taxation Dade. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. An easement for road and inUdentai purposes in the document recorded December 27, 1938 in Book 976, Page 183 of Official Records. 5. An easement for pipe lines and inckiental purposes in the document recorded becember 11, 1958 in Book 4513, Page 75 of OffKtal Reccx'ds. FrrstAmeriran 71de Page 21 of 24 25A-49 Attachment 4 f}rder Number: OSA-3425620 (22} Page Number. 3 6, The right to install, maintain and u~, over, uixfer, across and along the easement last above. shown, roads and streets, with right to dedicate for pubik: road purposes and pole Tines, pipe Hues, and other fatalities far oil, gas, water, etectrlcity and other purposes not inconsistent with use of said easement by said Gas Company, as reserved by the Irvine Company in said easement last above shown. 7, An easement for Cortdults and inckdentai purposes In the document retarded in Book 6685, Page 921 of Official Records. 8. An easement for avigation and incidental purposes, recorded March 17, 1964 in Book 6965, Page 721 of Official Records. in Favor of: County of Orange Affects: As described therein 9. Crn+enan~, Corlditivns, restrictions and easements in the document reCOrt}ed May 2i, 19b5 in BooK 7529, Page 600 of Official Records, which provide that a violation thereof shall not defeat or render invalid the lien of any first mortgage or deed of frost made in good faith and for value, tart deleting any covenant, condltusn or restriction indicating a preference, limitation w discdmina#ion based on race, color, religion, sex, handicap, famtHal status, national origin, sexual orientation, marital status, ancestry, source of income yr disability, tv the extent sutfi wvenartts, condltlons or re~ricfions violate Title 42, Section 3604(c), of the United States Codes or applicable state law. Lawful restrictions under state arxt federal law on the age of occupants in senior housing or housing for older persons shall not be mnstrtred as restrictions based on familial stata.~. Document(s) declaring modifications thereof recorded May 30, 1989 as lnstrumerit No. 89- 285371; March 2, 1990 as Instrument Nrs. 90-112441; October 5, "1990 as Instrument Na. 90- 535152; January 10, 1992 as Instrument Nn. 91-14595; 3anuary 10, 1991 as Instrument No. 91- 14596 and September 26, 2002 as Instrument No. 02-8271$4, au of Official Records. Cvnserrt urx~r Declaration of Restrlctioru - irvrie Industrfal Complex; was. recorded March B, 2001 2R5 Instrument Na. 01-133730, Official Records. Reference is made to said document for full particulars.. 10. An easement for street and incidental purposes In the document recorder! May 9, 1966 in Book 7925, Page 979 of Official Records. 11. The right to construct, install, replace, ma~tain, operate and u~, pole !Ines, pipe lines and other faculties for the transmission of oil, water, gas, sewage, eieckriCity and tel~fione, as reserved fn the deed last mentioned above. 12. An ~semenk for street, highway and incdentai purposes in the doament recorded in Book 8276, Page B96 of Official Records. 13. 'The right tv construct, maintain and operate existing irrigation pipe lines, as reserved by Irvine industrial Complex, a Callfiomia corparation, in the deed last mentioned above, 14. An easement for road, public utilities and incidental purposes in the document recorded December 11, 1972 in Book 10464, Page 953 of Official Records. First Amevican TTiye Page 22 of 24 25A-50 Attachment 4 Order Number: OSA-3425620 {22} Page Number: 4 15. An easement for an underground storm drain ro be used far flood control and water conservation and Inddental purposes in the document recorded in Book 11335, Page 1259 of Official Records. 16. Covenants, conditions, restrictions and easements in Ute document recorded October 13, 3978 in Book 12861, Page 184 of official Records, which provide that a violatlon thereof shall rwt defeat or render invalid the lien of any first mortgage or deed of trust made in good faith and for value, but deleting any covenant, totKiition or restriction indicatlng a preference, limitation or discrimination tossed on race, color, religion, sex, handicap, familial status, national origin, sexual orlentagon, marital States, ancestry, source of intdme Ctt disability, DD the extent Such COYenant5, tvrxiitions or restrictions violate Title 42, section 3604{c), of the United stag Codes or applicable State law. lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictbn5 based on famiNal status. 17, The Terms, Provisions and Easement{s} ccxrtained in the document entitled Grant of Easement retcxded June 11, 1998 as instrument Na. 98-368022 of official Records. 18. An easement for street, highway, utility and incidental purposes, recorded June li, 1996 as instrument No. 38-368023 of Officio{ Records. Sn Favor of: The City of Santa Ana Affects: As described therein 19. An easement for public right of way and incidental purposes in the document recorded June 11, 1438 as 1n~rvment No. 98-368024 of OfficJal Records. 20. An easemenk for public right of way and incidental purposes in the document retarded June 1 i, 1998 as iristrurnent No. 98.368025 of Offldai Records. 21. An easement shown or dedigted on the map flied or recorded December 15, 1972 as Book 48, Page 34 of Parcel Maps For: sewer and incdental purposes. 22. An easement shown ~ dedicated an the map filed ar recorded December 15, 1972 as Book 48, Page 34 of Parcel Maps For: Proposed tempcxary storm drain construction and proposed storm drain arxf incidental purposes. 23. The effect of a map purporting to show the land and other property, filed in Book 189 Page 26 of Record of Surveys. 29, Rights of parties in possession. Prior to the issuance of any policy of title irtsuranoe, the Company will rrquire: 25. With respell to the trust referred to in the vesting: d. A cert3f'rcaUon pursuant to Section 18100.5 of the California Probate Code fn a form satisfactory to the Company. b. Copies of those excerpts from the original trust documents and amendments thereto wh~h FustArnerrcan T31fe Page 23 of 24 25A-51 Attachment 4 Order Numt~: o5A-3425620 t22) Page Number: 5 designate the trustee and Confer upa~ the Mastc;e the paver to act in the perking transaction. c. ocher requirements which the Company may impose fr~ianring its review of the material required herein and Cher inforinatian which the Company may require. Fr7s7Amerlran TIUe Page 24 of 24 25A-52 REQUEST FOR : COUNCIL ACTION ~ ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED AMENDMENT TO AGREEMENT WITH ASCOM ? As Recommended FOR ENGINEERING SERVICES FOR FIRST ? As Amended STREET BRIDGE WIDENING ( PROJECT ? Ordinance on 1 S` Reading ? Ordinance on 2"d Reading 061723 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO z~+..-c: `:c>"~ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the attached amendment to the agreement with AECOM, subject to non- substantive changes approved by the City Manager and City Attorney, to provide engineering services for widening of First Street Bridge over the Santa Ana River in the amount not to exceed $121,200 for a total contract amount of $1,160,000. DISCUSSION On November 20, 2006, the City Council awarded a contract to AECOM for design services related to the First Street Bridge Widening Project. The project entails replacing the existing four lane bridge over the Santa Ana River with a wider six lane bridge. The scope of work included preparation of the California Environmental Quality Act and National Environmental Policy Act (NEPA) determinations for the proposed project. In 2007, the Federal Highway Administration delegated oversight of NEPA review and approval to Caltrans for projects funded by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Caltrans in turn instituted more stringent NEPA requirements due to their new oversight. A Preliminary Environmental Study for this project was approved on December 7, 2009. This study dictates which technical studies will be required for NEPA approval by Caltrans. Based on these more stringent requirements not included in the original contract, additional environmental services are required in the amount of $121,200. 25A-53 Amendment to Agreement with AECOM January 4, 2010 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M Street Construction Fund (accounting unit 03217660-66220, project no. 061723) and the Select Street Construction Fund (accounting unit 05917660-66220, project no. 061723). APPROVED AS TO FUNDS AND ACCOUNTS: ~'~M~,~ra~~ Raul Godinez Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 25A-54 ~ FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on January 4, 2010, by ' and between AECOM/DMJM, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). j I RECITALS: A. The City and DMJM entered into that certain Agreement A-2006-304, dated November 20, III',, 2006, (hereinafter "said Agreement") by which Consultant has provided structural design and ~ project management services for the First Street Bridge Widening Project ("the Project). ~ B. DMJM was by AECOM by agreement (instrument...) dated.... C. Due to funding issues, the Project was interrupted and is now being re-instated by the Parties. The re-initiation of the Project will require additional environmental studies to comply with requirements imposed on Caltrans Local Assistance projects. D. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of services to include additional environmental studies and project management tasks, and to increase compensation to pay for the additional studies and management tasks. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to include reworking the following environmental studies proposed to be completed by subconsultant LSA, as set forth in Exhibit A-1, attached hereto and incorporated by this reference: • Traffic (update) • Air Quality (update) • Noise Study (update) o NSR (update) o NADR (New Study) • Cultural o ASR (Update) o HPSR (Update) o Native American (Update) • NES (MI)) (Update) • Haz. Mat. ISA (Update) • JD (Update) Additionally, Consultant will provide management and administrative services required to complete the Preliminary Environmental Study incorporating the updated studies, and provide additional technical studies as required by the Project. 2. Section 2, COMPENSATION, shall be amended to increase compensation by $121,200, to pay for the additional services and previously approved change notices, at the rates and 25A-55 charges set forth in Exhibit B-1. The total not to exceed contract amount shall be $1,160,000.00, which includes a five percent (5%) contingency. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. Vii, ~I ATTEST: CITY OF SANTA ANA ~ MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: it AECOM JOSEPH W.FLETCHER City Attorney 'I i By: Laura Sheedy (NAME) Assistant City Attorney (Title) 25A-56 EXHIBIT A-1 October 14, 2009 LSA Associates Inc. (LSA) has been preparing environmental documentation for the First Street Bridge Widening Project as a subcontractor to DMJM/AECOM since January 2007. The project was put on hold in February 2008 due to funding issues. The City of Santa Ana (City) has now requested that the AECOM team re-initiate work on the project. The 18 month delay has i resulted in additional and in some cases substantial new requirements for Local Assistance projects as a result of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), National Environmental Policy Act (NEPA) delegation to Caltrans. Additional work will be required for processing the technical studies for the First Street Bridge Widening Project to meet the new requirements of Section 6004 (d) (3) for Categorical Exclusions under SAFETEALU. Therefore, LSA is submitting this contract change order request. This change order request is based on several discussions with DMJM/AECOM over the past year and more recent discussions in the past 2 weeks with AECOM, the City, and Caltrans. The suite of technical studies that LSA is currently contracted to prepare include: traffic, water quality, air quality, noise, Historic Property Survey Report (HPSR), Archeological Survey Report (ASR), the Natural Environment Study Minimal Impacts (NESMI), Jurisdictional Delineation (JD), Section 4(f), and Initial Site Assessment (ISA). BACKGROUND LSA had an original budget of $144,430 for the completion of the scope of work: preparation of the Preliminary Environmental Study (PES) Form, technical studies (listed above), environmental document - a Categorical Exclusion (CE)/Mitigated Negative Declaration (MND), and Resource Agencies permitting and coordination. Additional budget of $7,500 was authorized in March 2009 for completion of an updated PES Form, for a total authorized budget of 151,930. ADDITIONAL WORK The following describes work that LSA will need to perform in order to revise and update technical studies due to the inactivity of the project, updated requirements of Caltrans, and additional studies that are currently required by Caltrans Local Assistance and that were not included in the original scope. As noted above, the factors that have changed the scope of work and budget are new Caltrans Local Assistance Requirements as a result of SAFTEA-LU, and Caltrans requirements for new technical reports such as Noise Abatement Decision Report (NADR) and Historic Resources Evaluation Report (HRER) that were recently identified in the PES form and that were not included in the original scope of work. 25A-57 Task 2.1 Traffic/Circulation Use of 2007 Traffic/Circulation Study The traffic report was completed in October 2007. The report was submitted for review to the City however, was not submitted to Caltrans. LSA proposes to submit the 2007 traffic report to Caltrans to see if it is accepted. If it is accepted by Caltrans, then the only traffic work required would be to process the traffic numbers for future 2035 conditions for the air quality and noise reports. Update or New Traffic Study (Optional Tasks) There are two approaches for a new traffic study, in the event Caltrans requires one. These I', include: 1. Extrapolating 2035 numbers from the existing 2007 report traffic data and updating the report with the new numbers and new traffic counts; or 2. Wholesale update including obtaining new OCTAM model numbers from the Orange County Transportation Authority (OCTA), taking new counts. Approach No. 1 can be accomplished without a tremendous amount of effort or impact on the schedule and has modest budget implications. Approach No. 2 has both major budget and schedule implications and would include basically a brand new traffic study, new counts, new model data, processing of the model data, new report preparation and review by both the City and possibly Caltrans. Task 2.2 C Air Quality (i7pdate) The draft air quality analysis was completed in October 2007. However, the air quality report was not submitted to Caltrans because the project went on hold in February 2008. To reflect most recent changes to Caltrans Standard Environmental Reference (SER) guidelines with respect to air quality and global climate change, new and additional analysis will be required. LSA will prepare an updated Air Quality Analysis for the First Street Bridge project in accordance with the Caltrans Transportation Project Level Carbon Monoxide (CO) Protocol, the EPA's fugitive dust conformity rule, and the South Coast Air Quality Management District (SCAQMD) CEQA Handbook air quality guidelines. LSA will conduct the screening analyses specified in the CO protocol and, if required, conduct CALINE4 modeling for CO hot spots for up to 20 receptor locations for the Existing, Future No Build, and the Build Alternatives. LSA will evaluate the proposed project's impacts to long-term particulate matter concentrations (PMz.s and PM~o) and mobile source air toxics (MSAT) using the Transportation Conformity Guidance for Qualitative Hot-spot Analysis in PMa.s and PMro Nonattainment and Maintenance Areas (EPA, March 2006) and the Interim Guidelines on Air Toxic Analysis in NEPA Documents (FHWA, February 2006). In addition, the proposed project's impact on global warming and climate change will be discussed. LSA will submit the particulate matter hot-spot analysis to the SCAG Transportation Conformity Working Group for review and approval. In addition to the revised air quality and particulate matter analyses, LSA will prepare the "Conformity Analysis Documentation for Project-Level Conformity Determinations in Metropolitan Nonattainment/Maintenance Areas" that is now required under NEPA delegation. 25A-58 Task 2.3 Noise Analysis (Update) The draft noise analysis was completed in November 2007 however was not submitted to Caltrans for review because the project was put on hold. The current noise report will require minor revision due to changes in the requirements for noise reports and updated traffic. However, if a new traffic report is required then the noise analysis will require wholesale revision using the new traffic numbers for new modeling. In addition, the noise analysis will be revised to reflect the latest requirements for the noise impacts assessment posted on the SER. LSA will revise the Noise Impact Analysis that assesses the project's potential effects on existing and future noise conditions based on the new alignment. LSA will review applicable noise and land use compatibility criteria for the project area. The noise study revisions include the following tasks: 1) the Noise Analysis (noise modeling) will be updated to reflect updated traffic data; 2) the report will need to follow the current Caltrans Protocol and the new report format provided on the SER website; and 3) the reasonable allowance per benefited residence has been reduced from $36,000 to $31,000 and the report will reflect this change. Update Noise Study to Reflect Revised Traffic Data (Optional task) If Caltrans requires new traffic information under either optional Approach No. 1 or No. 2 described above under the Traffic Study, then this will require additional revisions to the noise modeling that are not included in the above scope of services for the update of the noise analysis. New Task 2.3.1: Noise Abatement Decision Report (New study) A Noise Abatement Decision Report (NADR) will be required to be consistent with the most recent Caltrans Traffic Noise Analysis Protocol, which was not included in the original scope of work. LSA will work with DMJM/AECOM to obtain the engineer's cost estimate for the evaluated abatement, the engineer's evaluation of nonacoustical feasibility issues, and necessary technical reports to assess secondary effects of abatement. The project engineer (DMJM/AECOM) will need to sign the NADR. If feasible sound barriers are identified in the Noise Study Report (NSR), LSA will prepare a NADR. The report will summarize the preliminary reasonableness determination from the noise study report, present the engineer's cost estimate for the evaluated abatement, evaluation of non- acoustical factors related to feasibility, preliminary noise abatement decision, and secondary effects of abatement (impacts on cultural resources, scenic views, hazardous materials, and biology). LSA will prepare the NADR consistent with the Caltrans report guidelines with the best information available. Task 2.4 Cultural Studies (Updates) The draft Archeological Survey Report (ASR) and Historical Properties Survey Report (HPSR) were completed in September and October 2007, respectively. However, these reports were not submitted to Caltrans because the project was put on hold. The ASR and HPSR reports will require significant revisions due to the new ASR form requirements, and updates to the HPSR. The reports will require updated records search and literature search, minor updates to the APE map and additional Native American consultation. Furthermore, the Historical Resources Evaluation Report (HRER) was determined to be required by Caltrans in the PES form. The scope of work for the HRER is described below: 25A-59 New Task 2.4.1 HRER (Optional New Study) It is unlikely that a Historic Resources Evaluation Report (HRER) is necessary for the project because there does not appear to be the need to evaluate properties adjacent to the APE. However, it is included here in the event that Caltrans requires one. The HRER will document identification, recordation, and evaluation efforts for the built environment and historical archaeological resources. The preparers) of the HRER will meet the Architectural Historian Qualifications Standards in Attachment 1 of the 2004 Programmatic Agreement (PA). The HRER will follow the format in Exhibit 6.2 of Caltrans Environmental Handbook Volume 2. The HRER will contain documentation of the research and field methods, a historical overview, the description and significance of identified historic archaeological and built environment cultural resources (if applicable), and findings and conclusions. The HRER will also contain a bibliography, preparers' qualifications, maps, Department of Parks and Recreation (DPR) 523 forms for properties not exempted under Attachment 4 of the PA, and other appropriate documents such as maps, figures, previously prepared resource records, and historical archaeological site records. Determinations of Eligibility will be made for properties within the area of potential effect (APE). It is anticipated that the project will not have any effects on historical resources and that a Finding of Effect will not be required. Task 2.5 Natural Environment Study Minimal Impacts (NESMI) (update) The draft NESMI was completed in November 2007; however, it was not submitted to Caltrans for review because the project was placed on hold. The current NESMI will require update to the report, an additional follow-up site visit, including a daytime visit to inspect the bridge for the bat presence, and a new CNDDB and CNPS literature search to update the occurrence potential for special status species. Task 2.7 Initial Site Assessment (ISA) (update) The draft ISA was completed in September 2007 and was submitted to Caltrans for the first round of review. The comments to the report were received however they were not incorporated to the report, because the project went on hold. The ISA will be revised to provide answers to Caltrans comments, incorporate new records search results and Caltrans comments to provide Asbestos Containing Materials (ACM) survey results findings. These new records search results and ACM survey finding will be reported in the updated ISA. In addition, based on LSA's experience that these studies are typically required by Caltrans, we recommend that the ADL surveys for aerially deposited lead and lead-based paint be conducted by Kleinfelder under their existing contract with AECOM. The ISA report will be revised per findings of these survey results. Task 4.1 Jurisdictional Delineation (update) The jurisdictional delineation report will require revisions regarding changes to U.S Army Corps of Engineers (Corps) guidelines as a result of recent Rapanos Supreme Court decision. The report will be updated to reflect these Corps changes. The Santa Ana River is also subject to review by California Department of Fish and Game (CDFG) under Section 1602 of the Fish and Game Code. 25A-60 EXHIBIT B-I AECOM CONTRACT STATUS Original Requested Revised Budget Budget Change Orders w/ Requests Design $874,657 $0 $874,657 Construction Support $47,192 $0 $47,192 Optional Tasks Retaining Walls (South Quadrant) $10,589 $0 $10,589 Raised Medians & Landscaping $12,301 $0 $12,301 Environmental EA/FONSI/MND $19,080 $0 $0 ~ . Additional Potholes $0 $4,140 $4,140 • . Asbestos Survey $0 $5,400 $5,400 • PES Preparation (Modified Form) $0 $10,370 $10,370 • WQMP Preparation $0 $19,180 $19,180 • . Rework Technical Studies DMJM Manage. & Admin. $0 $11,916 $11,916 Meetings $0 $6,448 $6,448 PES Prep. $0 $1,407 $1,407 Technical Studies $0 $9,751 $9,751 LSA Traffic (Update) $0 $500 $500 Air Quality (Update) $0 $7,200 $7,200 Noise Study (Update) NSR (Update) $0 $10,490 $10,490 NADR (New Study) $0 $16,510 $16,510 Cultural ASR (Update) $0 $5,140 $5,140 HPSR (Update) $0 $5,300 $5,300 Native American (Update) $0 $2,700 $2,700 NES(MI) (Update) $0 $4,180 $4,180 Haz. Mat. ISA (Update) $0 $3,330 $3,330 JD (Update) $0 $3,620 $3,620 Optional Tasks HRER (Update) $0 $7,980 $0 25A-61 Traffic(Update-Approachl) $0 $10,190 $10,690 Traffic(Update-Approachl) $0 $7,550 $7,550 NSR (Update) $0 $14,660 $14,660 • i~~ 25A-62