Loading...
HomeMy WebLinkAbout25A - SETTLEMENT AGREEMENTS - BRISTOL STREET CORRIDOR REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MAY 17, 2010 TITLE: APPROVED SETTLEMENT AGREEMENTS FOR ? As Recommended BRISTOL STREET CORRIDOR (PROJECT ? As Amended NO. 08-1700 ? Ordinance on 151 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO i ~ li .1-- FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney: • Pieper Properties for the purchase of 1211 West Warner Avenue in the amount of $1,429,550. • Zapateria Guanajuato for acquisition settlement for the property at 303 North Bristol in the amount of $225,000. DISCUSSION On March 6, 2006, the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority (OCTA) to fund Bristol Street improvements from Warner Avenue to Seventeenth Street. The first phase of the project, between Pine Street and McFadden Avenue, is under construction and is expected to be completed by September 2010. Public Works is acquiring property for the second phase of the project, between Third Street and Civic Center Drive, as well as the intersection of Bristol Street and Warner Avenue. To accommodate the widening for the second phase, acquisition of the entire property located at 1211 Warner Avenue is required (Exhibit 1). In addition, a settlement agreement has been reached with the tenant of the property at 303 North Bristol for relocation benefits. This property was acquired in 2009. The compensation amounts are the appraised values prepared by an appraiser licensed by the State of California. 25A-1 Settlement Agreements For Bristol Street Corridor May 17, 2010 Page 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89-01 approved by City Council in 1990. FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661-66100). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Direct Executive Director Public Works Agency Finance & Management Services Agency RG/SA Exhibit 1: Location map Exhibit 2: Agreements 25A-2 LEGEND ~ ~ p SUBJECT PROPERTIES SANTA ANA BLVD ACQUIRED PROPERTIES - - m ~ ' N ~ i i m j m ~ ! I I I i I I j I ~----:-----L-- j I j 308 j j ~ L___ I 304 I 3RD ST KTs m m ' ~ ' N i N F- ~ ~ i i ~ ~ ' O r----,------ I I i m I ~ ' 204 I I ~ ! 2223_-_- ~ 2222 m ~ I I I N ~ N ~ I 2222 ~ I ~ 2227 j 2226 2ND ST _ i ~ j~_--_--__-__- ~ 2231 I 2230 2240 m I I j I 2235 I WARNER AVE i I i ~ 2302 2303 I ! I I ~ i ~ EXHIBIT 1 OJG pT ION ~,R SANTA ANA ~ Sa CITY COUNCIL TITLE SETTLEMENT AGREEMENTS FOR r ~~I P_ AGENDA DATE ~ ~ I ' u- BRISTOL STREET CORRIDOR P~gL[C YOflKS AGENCY MAY 17, 2010 (PROJECT 08-1700-C) 2 5A-4 EXHIBIT y 25A-5 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into #his,;~day of Aprll, 2010, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under fhe Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer"}, and Pieper Properties, a California general partnership (hereinafter called "Seiler"), regardless of number or gender; WtTNESSETH 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 #o sell to City, and City agrees to purchase from Seller, ail that certain real property (hereinafter referred to as "said real property") described as follows: All that certain real property located in fhe State of California, County of Orange, City of Santa Ana, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1211 W. Warner Avenue, Santa Ana, CA) Said purchase and sale of said real property shelf be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Convevance by Setter. 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 Phis Agreement. 2. Title to bs 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, assessmen#s, profits, itmitations, encumbrances (whether monetary or non-monetary, general or specific, including any and aH leasehold interests), liens, clouds or defects in title except (hose exceptions shown in Paragraph 15 below. Seiler hereby warrants that the title to said real property to be conveyed by Seiler to City shall be free and clear as provided above. Seller further agrees that accep#ance by City of any deed to said real property, with or without knowledge of any condi#ion, restriction, reservafion, exception, easement, assessment, profi#, limi#a#ion, 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 herelnabove agreed to be conveyed by Seller to City, nor of any right which might accrue to Clty because of the failure of Seiler to convey title as hereinabave provided. 3. Titf~ Insur~ce. Seiler agrees to deliver to City, concurrently with the conveyance of sold 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 ti ie company, with the City therein named as the insured, in the amount of ONE MILL{ON FOR HUNDRED TWENTY NINE THOUSAND FIVE HUNDRED FfFTY AND NOl100 Dollars ($1,429,550.00) insuring the title of the City to said real properly is free and clear of any and all conditions, restric#tons, reservations, exceptions, easements, assessmen#s, profits, timitaflons, encumbrances (whether monetary ornon-monetary, general or specific, and including any and all leasehold interests), liens, clouds ar defects in title, excep#ing such specific ones as city may 1 25A-6 hereinafter expressly agree to take subject to. Acceptance by C{ty 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 far damages or any other rights which may accrue to City by reason of the failure of Seiler to convey title or to provide #itfe insurance as required in fhis Agreement. 4. Es row. City agrees fo 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 Cify has approved this Agreement. This Agreement constitutes the joint escrow instructions of the Cify and the Seiler 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 fo ac# under this Agreement, and upon indicating its acceptance of this Section 4 and of the Genera( provisions described in Exhibit "S" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seiler 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 ether closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any exis#ing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.24t?. The liability to the Escrow Agent under this Agreement is limited #o performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "E" of the General Provisions of this Agreement. 5. proaerty Taxes. Such real property taxes, if any, on said rea! property for the fisca! year within which said real property is conveyed to Cify as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 49136 of the Revenue and Taxation Code of the State of California. Seller snail 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 Cfty is recorded which is allocable #o tha# portion of fhe fiscal year which begins on the date the deed conveying said real property #o 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 reai property to City. 6. Aavment 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 reai property, fixtures & equipment (improvemen#s pertaining to fhe realty), goodwill (if any), and severance damages, the tots! sum of ONE Mit.[_ION FOUR HUNDRED TWENTY NINE THOUSAND FIVE HUNDRED 1=1FTY AND N0/100 Dollars ($1,429,550.00}. City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said reai property by Seiler 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; 7. 25A-7 (d} Recordation of the Deed conveying said teat property to City. 7. Possession. Seiler agrees to deliver to City, on the date the Deed conveying said real prapetty to City is recorded, quiet and peaceful possession of said real properly, which shall be made free by Seiler of elf personal property. 8. Rental and Occunan .v R Setier. Seller agrees to execute a complete, current and correct statement of rentals (Seller Estoppel) on a form furnished to Seller by Buyer and deliver same to Buyer within fifteen (15) days hereof with copies of any wriften leases or rental agreements aftached. All rents will be prorated as of the close of escrow on the basis of a 30-day monthl360- day year consistent with that statement, subject to approval of Buyer. Seller hereby agrees not to rent any units on the premises which are now vacant, or which may be vacated by present occupants prior to close of escrow. Seller agrees that any and all Tenant Security Deposits pertaining to fhe subject property collected by or in fhe possession of Seller prior to the close of escrow shall be transferred to and become the property of Buyer during escrow. Seller hereby warrants that the rental statement referred to shall include the terms of a!I rental agreements, #enancies, and leases (written, unwritten, recorded, ar unrecorded) and Seller agrees to hold Buyer harmless from all liability from any such leases or agreements. Seller also warrants that there are no oral or written leases on all or any portion of the subject property exceeding a period of one month. 9. Wa"vets. The waiver by City of any breach of any covenant or agreement herein con#ained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waver of any breach of any other covenants or agreements contained herein. 10. Heirs._Assians. Successors in interest. This Agreement, and all the terms, covenants and cond~t~ons hereof, shaA apply to and bind the heirs, executors, administrators, successors and assigns of fhe respective parties hereto. 11. Fime is of the Essence. In all matters and things hereunder to be done and in ail 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 a# all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Comnensatian. 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. City had delivered to Setier an offer to purchase said real property under threat of eminent domain pursuant to Government Code § 7267.2. Seller now wishes to avoid eminent domain proceedings and self said real property to the City, and City wishes to buy said real property from Seller, pursuant to the terms and conditions of this Agreement in lieu of condemnation. 14. Notes` ices. 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: Pieper Properties 93122 W. t.atrrinda Way Santa Ana, CA 92705 3 25A-8 15. Exceptions. City agrees to accept title to said real property subject to the fallowing: NGNE. 16. Entire Agreement. It is mufualiy agreed that the parties hereto have herein set forth the whole of (heir Agreement. Performance of this Agreement by City shall lay at rest, each, every, and alt issues} that were raised or could have been raised in connection with fhe acquisition of said real property by City. 17. Hazardous Waste. Neither Setter nor, to the best of Seder's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic subs#ances, or related materials ("Hazardous Ma#eriats") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Seller shaft not cause or permit the presence, use, genera#ion, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, ar 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 fhe United States Government, including, but not limited to, any material or substance which is {i) defined as a "hazardous waste", "extremely hazardous waste", or "restric#ed hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Cade, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii} defined as "hazardous substance" under Section ?_5316 of the California Health and Safety Cade, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", ar "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 {Hazardous Ma#eriats Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Sec#ion 25281 of the California Health and Safety Cade, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v} petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, {viii) fisted under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of T(tle 22 of the California Administrative Code, Division 4, Chapter 20, (ix} designs#ed as a "hazardous substances" pursuant to Section 311 of the Clean Wafer Act, (33 U.S.C. S1317), (x) del+ned as a "hazardous waste" pursuant to Sec#ion 1004 of fhe Resource Conservation and Recovery Aci, 42 U.S.C. S6901 of sgq. {42 U.S.C. S6903) or (xi} defined as a "hazardous substances" pursuant to Seetfon 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 e# s_q. (42 U.S.C. S9601). 18. Compliance With Environmental Laws. To the best of Setter's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, alt applicable federal, state, and local laws pertaining to air and wafer quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited #o, 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 Ac#, and the rotes, regulations, and ordinances of the city within which the subject property is Coca#ed, the California Department of Health Services, fhe Regional Water Quality Contras Board, the State Water Resources Control Board, the Environmental Protec#ion Agency, and all applicable federal, s#ate, and local agencies and bureaus. 19. toe i Setter agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, toss, cost, damage, liability, deficiency, fine, penally, punitive damage, or expense (including, without limitation, attorneys' fees), resu!#ing from, arising auf of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (it) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or abou#, to or from, the 4 25A-9 Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, sui# or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment}. This indemnity extends only to liability tree#ed prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or omissions to act post close of this escrow. 2p. Contknaency. 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 Agen# constitutes said acceptance and approval. 27. Modification and Amendment. This Agreement may no# be modified or amended except in writing signed by the Seiler 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, legaliky, or enforcement of #his Agreement shall have no effec#, 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 fo be considered in construing this Agreement. 24. G_ overnina Law. This Agreement shaii be governed by and construed in accordance with the laws of the State of California. 2S. No Reliance By One Part,~Qn The Other Each party has received independent legs! advice from its attomeys with respect to fhe 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 parry based upon any attribu#ion to such party as the source of the language in question. 26. No Third Pafir Beneficiary. This Agreement is intended to benefit only the porkies hereto and no other person or entity has or shall acquire any r#ghts hereunder. 27. Du To Coo a ate Further. l=ath a execute and deliver such further documents,{ineforbm nd subsfancehaeasonably accepfabl~e to the party to be charged} and do such oilier acts and things as are reasonably necessary and appropria#e to effectuate the terms and conditions of this Agreement, without cost. 28. Aaplicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure io the benefit of the successors and assigns of the parties to this agreement. 29. Authority to Execut Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and rfght to bind their respective parties to each of the terms of this Agreement, and shalt indemnify City fully, including reasonable costs and attomeys 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. 5 25A-10 30. Incorooration of Exhibits. All Exhibits referenced herein and attached hereto shalt be incorporated as if fully sst €orth in the body of this Agreement. The parties have executed this Agreement as of the date written below. SELLER: Pieper Properties, a California general partnership Its: _ P~~~~ ~ Dated ~~n_rn~ CITY/BUYER: CITY QF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Cteric of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attomey BY. J s and val a aging Senior Assistant City Attorney 6 25A-11 EXHIBIT "A" LEGAL DESCRIPTION Real Property in the City of Santa Ana, County of Orange, State of California, ttescribed as follows: LEGAL bESCRxpTJ[ON Real property in the City of Santa Ana, County of Orange, State of California, described as follows: LOT 183 AND 184 OF TRACT NO. 1192, iN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 39, PAGES 16 AND 17, MISCEI.IANEQUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN:015-194-37 7 25A-12 EXHIBIT "B" GENERAL ESCROW PROVISIONS AI! 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 documen#s deposited in this escrow to the fender or lenders, the real estate broker or brokers andlor the attorney or attorneys involved in this transaction upon request of such fenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to Phis escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shaft have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shaft 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 reasonab}e 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 fie 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 Tess than $30.00 per month. Time fs declared to be the essence of these instructions. if you are unable to comply within the time specified herein and such additional time as !s 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 properly 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 al! of which taken together shall constitute one and the same instruction. 8 25A-13 25A-14 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made by and between the City of Santa Ana Public Works Agency, a public body, cozporate and politic ("Agency") and Raul Tones Morfin dba Zapateria Guanajuato ("Tenant"). The Agency and Tenant aze hereinafter sometimes referred collectively as the "Parties." RECITALS A. Tenant operates a business, commonly known as Zapateria Guanajuato, located at 303 N. Bristol St., Santa Ana, CA {the "Property"). B. The Agency acquired the Property on January 29, 2010 for the Bristol Street Widening Project. C. The Parties desire to resolve all issues relating to the Agency's acquisition of the Property in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in paragraph 1(a) and other consideration given in connection with this Agreement are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the parties herein released. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinaftez• set forth, it is hereby agreed by and among the Parties that: 1. Consideration {a) The Agency shall pay to Tenant the sum of $225,OOO.OQ (Two Hundred Twenty Five Thousand Dollars) (Tenant Settlement Payment) as total compensation for relocation assistance and any and all related expenses and claims as more fully described in paragraph 1(b) belouT. Upon full execution of this Agreement, the Agency will begin processing an initial payment, payable to Raul Tones Mozfin dba Zapateria Guanajuato and Nicholas Mosich, in the amount of $150,000.00. The Agency will make the final payment to Raul Torres Morfin dba Zapateria Guanajuato and Nicholas Mosich in the amount of $75,000.00, less any deductions described in paragzaphs i (c) and (d} of this Agreement, after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the Agency or to the Agency's relocation consultant, and provides written verification that all hazardous materials have been legally and properly moved. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the Agency to Tenant, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, Loss of business goodwill, compensation for personal property (lass of inventory), 1 of 7 25A-15 furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Tenant agrees to vacate the premises by no later than July 31, 2010 (Vacate Date). Should Tenant remain in occupancy beyond the Vacate Date, a Two Hundred Fifty Dollar ($250) per day penalty will be deducted from Tenant's Settlement Payment, for each day of occupancy beyond the Vacate Date unless a written z•equest for an extension has been submitted and consequently approved by the Agency or its Agents. (d) Tenant hereby agrees that Agency may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desiz•es, without any notice to Tenant. (e) Payment will be made for Relocation Expenses in the amount of $37,550. (f) Payment will be made for Loss of Business Goodwill and Leasehold Bonus Value in the amount of $187,450. 2. Release (a) Nothing contained herein shall constitute a release or discharge by either party for any of the undertakings of the other party to this Settlement Agreement. This Agreement shall serve as a full release and discharge by the Parties, on behalf of themselves, their agents, representatives, assigns, trustees, administrators, attozneys, heirs, relatives, spouses, ex-spouses, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the Tenant, the City of Santa Ana, the City of Santa Ana Public Works Agency, and those parties' accountants, other professionals, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries, and successors in interest (collectively the "Released Parties"), from all rights, claims oz• cross-claims, demands, actions, or causes of action, including those for damages, compensation, relocation assistance, relocation benefits, loss of goodwill, property interest, compensation for personal property (loss of inventory), furniture, textures and equipment, punitive damages, interest, casts, attorney's and appraisal fees, injunctive or declaratory relief, or• for relief by way of writ of mandate, or for demands, damages, z•efunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, at law or in equity, that the Parties have now or may have against any of the Released Parties arising from the facts and circumstances described in this Agreement including but not limited to (1) the acquisition of the Property by the Agency, {2) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of Agency's actions or failure to act, including, but not limited to, any claim to relocation assistance, relocation benefits or compensation for property or loss of goodwill from the Agency. 2 of 7 25A-16 (b) In making this release, the Parties intend to and do release, acquit and dischazge the Released Parties, and each of them, from any liability of any nature whatsoever far any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such ciairn might be based, is known or unknown to the party possessing the claim. Each party expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code, which the Parties understand provides as follows: A general release does not extend to claims which the creditor does not know or• suspect to exist in his/her favor at the time of ea:ecartang the release, which if known by hirn/her must Dave materiall,7~ affected has/hej• settlement with the debtor. Each party acknowledges the foregoing waivez• of the provisions of California Civil Code Section 1542 was separately bargained for and expressly consents that this Agreement shall be given full force and effect in accordance with each and all of its expzess terms and provisions, including those terms and provisions relating to unknown or unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action herein above specified. (c} Each party acknowledges that it may hereafter discover facts or law different fiom or in addition to those which it now believes to be true with respect to the release of claims. Each party agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. The Parties shall not be entitled to any relief in connection therewith, including, bu# not limited to, any damages or any right or• claim to set aside or rescind this Agreement. (d) None of the Parties or their respective agents nor any related entities have made any statement or presentation to the other regarding any fact relied upon in entering into this Agreement and the Parties, and each of them, expressly do not rely upon any statement, representation or promise of any other party or• nay party's agent or related entities in executing this Agreement, except as is expressly set forth herein. Each of the Parties has made such investigation of the facts and Iaw pertaining to the subject matter of this Agreement as it deems necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e} Tenant hereby represents and warrants as of the Effective Date of this Agreement that (1} to its actual knowledge, no other entity or person has any tight, title, or interest whatsoever in the released claims, and (2) that there has been no assignment, transfer, conveyance or other disposition by Tenant of any of the released claims, and that Tenant will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. • 3 of 7 25A-17 {f) Tenant will Hold Hazrnless and defend Agency, its employees, agents, contractors or representatives from any claims that may arise fiom Tenant's nondisclosure of any other interests in the Property or personal property referenced by this agreement. (g) This Agreement represents a settlement of doubtful and disputed claims between the Parties and does not constitute any admission of liability by either party to the other party to this Agreement. Agency has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and Agency now wish to enter into this Agreement in lieu of eminent domain proceedings. 3. Third Party Beneficiaries Except as explicitly set forth herein, nothing in this Agreement is intended to create any third party beneficiaries under this Agreement, and no person or entity other than Authority and Tenant shall be authorized to enforce the provisions of this Agreement. 4. Attorney's Fees In the event of litigation relating to or arising out of this Agreement, the prevailing party shall be entitled to be reimbursed by the non-prevailing party for all reasonable costs and expenses incurred thereby, including, but not limited to reasonable attorney's fees and costs for services rendered to such prevailing party. 5. Indemnitv Each party shall indemnify, defend and hold the other party and the Released Parties harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorney's fees and/or costs resulting from the breach by such indemnifying party of any provision of this Agreement, the falsity of any representation or warranty made by the indemnifying party contained in this Agreement. 6. Entire Agreement This Agreement together contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. 7. PartialInvalidity In the event that any term, covenant, condition or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shalt continue in full force and effect. 4 of 7 25A-18 8. Waiver and/or Modification The provisions of this Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon a written agreement signed by each of the Parties. The waiver by one party of the performance of any provisions of this Agreement shall not invalidate this Agreement, nor shall it be deemed a waiver of any other provision hereof. 9. Hea The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and for reference only and shall not be considered for any propose in construing this Agreement, 10. Govemin Law The rights and obligations of the Parties under this Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of California. I l . Successors In Interest Subject to any restz•ictions against assignment contained herein, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estates, heirs, legatees, agents and related entities of each of the Parties. 12. Necessarv Acts Each of the Parties agrees to perform such further acts, and execute and deliver such further documents, as may be reasonably necessary to carry out the provisions of this Agreement. 13. Advise of Counsel The Parties, and each of the, acknowledge that in connection with the negotiations and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel; or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of the party not so represented; and, prior to executing the Agreement, each party has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement including but not limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542. I 5 of'7 25A-19 14. Authority to Execute This Agreement Each person executing this Agreement on behalf of an entity represents that he or s}ie is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 15. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any consti•~iction to be made of taus Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 16. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 17. Voluntary A •eement The Parties, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 18• Notices A11 notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall either be delivered personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the party at its address set forth below, or at any other address that such party may designate by written notice to the other party: To Agency: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 24 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Raul Tones Morfin Zapateria Guanajuato C/O Law Office of Nicholas J. Mosich 2204 E. Fourth St., #100 Santa Ana, CA 92705 Gof7 25A-20 19. Jurisdiction and Venue Any action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California court in the County of Orange, California. Each party hereto irrevocably consents #o the personal jurisdiction of the court. The Parties each hereby expressly waive the benefit of any provision of law providing for a change of venue to any other court, including, without limitation, federal Agency court, due to any diversity of citizenship between the Parties or due to the fact that either the Authori#y is a party to such action or proceeding. Wi#hou# limiting the generality of the foa•egoing, the Parties specifically waive any rights provided #o it pursuant #o California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 1N WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: Zapateria Guanajuato z ~-tG"~ /p Raul Torres Morfin Title Tax Identification No. Date APPROVED AS TO FORM: BY: 1.-f~- '3". C'~~,~1., Dated `i - ~ t~ ° ~ i t~ Nicholas J. Mosich Tenant Legal Counsel CITY OF SANTA ANA BY. Dated David N. Ream City Manager ATTEST: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorne ~ , BY: . ~ Dated f Sandoval Ma ,aging Senior Assistan# City Attorney 7 of 7 25A-21 25A-22