Loading...
HomeMy WebLinkAbout25K - RAIL SAFETY ENHANCEMENT PROJECTREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 7, 2010 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED SETTLEMENT AGREEMENT WITH ? As Recommended EVANS ROOFING COMPANY, INC. FOR El Amended El Or dinance on 151 Reading RIGHT-OF-WAY FOR THE AT- GRADE ? Ordinance on 2nd Reading RAIL SAFETY ENHANCEMENT PROJECT ? Implementing Resolution (PROJECT 091745) ? Set Public Hearing For CONTINUED TO CITY ANAGER FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached acquisition settlement agreement with Evans Roofing Company, Inc. in the amount of $132,000 subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On October 20, 2008, City Council approved a cooperative agreement with the Orange County Transportation Authority (OCTA) for the Grade Crossing Enhancement Program at ten crossings in the City. Improvements include medians, roadway signing and striping, pedestrian gates and other vehicular gate enhancements. OCTA is the lead agency for this project and will be paying 100 percent of the costs associated with the acquisition of the property at 1101 E. Chestnut. To accommodate the project, OCTA has also agreed to pay the cost associated with relocating Evans Roofing Company, Inc., the tenant currently occupying the property at 1101 E. Chestnut, (Exhibit 1). As part of relocation process, the tenant must be paid for loss of business goodwill, due to the relocation of the business to their replacement site at 2020 S. Yale, Santa Ana, CA. The agreed upon compensation for loss of business goodwill is the appraised value, as determined by an appraiser, licensed by the State of California. ENVIRONMENTAL IMPACT A Notice of Exemption and Categorical Exemption - Class 1 (f): Safety Protection Devices (ER # 2008-159) has been prepared for the project and is consistent with both of these agreements. 25K-1 Settlement Agreement With Evans Roofing Company, Inc. (Project 091745) September 7, 2010 Page 2 FISCAL IMPACT There is no fiscal impact to the City as all the costs of this settlement are fully funded by OCTA, per Cooperative Agreement number C-9-0823. Raul-God'ibez Executive Din Public Works RG/SA Exhibit 1: Location map Exhibit 2: Agreement 25K-2 U \ a- O i z i Ln \ N ? O i r-- 1 1 1 1 1 1 1 1 oQ 1 1 1 1 1 11 CHESTNUT AVE c N I Q 1 1 o I z \ \ CA EXHIBIT 1 ACQUISITION PROPERTIES SANTA ANA -- City Council Title: SETTLEMENT AGREEMENT FOR RIGHT OF P- 0 Agenda Date WAY FOR THE AT- GRADE RAIL SAFETY SEPTEMBER 6, 2010 ENHANCEMENT PROJECT (PROJECT `U"C VMS AGENCY 09-1745) 1 1 1 1 1 25K-3 cy, 25K-4 ACQUISITION SETTLEMENT AGREEMENT LOA This Acquisition Settlement Agreement ("ASA") is entered into on. AWE, 2010 between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), Evans ng Company, Inc. ("Tenant"). City and Tenant may collectively be referred to indthis ASA assfthee "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Evans Roofing Company, Inc., and is the occupant of the real property and improvements located at 1 101 E. Chestnut, Sana Ana, (hereinafter called "Property"). B. Mark and Cindy Evans ("Landlord") are the fee owners of 1101 E. Chestnut, Santa Ana, California ("Property"). Owner and City have negotiated a Purchase and Sale Agreement ("PSA") for the Property, which will result in the termination of Owner's and Tenant's rights, title and/or interests in the acquired Property. C. The Property is located within the OCTA Rail Safety Enhancement Project Area and City intends to acquire the Property for a public use. D. The Parties' rights and obligations with regard to the acquisition of the Property by City are in dispute. The Parties desire to establish their respective rights and obligations and to resolve any and all existing disputes with regard to the acquisition of the Property by City upon the terms and conditions as hereinafter set forth. E. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for loss of business goodwill and relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's acquisition and relocation program and that they have received written material describing these rights. Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions of this ASA, the Parties agree as follows: Consideration a. City agrees to pay Tenant, in accordance with the total sum of ONE HUNDRED THIRTY-TWO THOUSAND, AND NO/100 DOLLARS ($132,000.00) as compensation for loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty, bonus value, and any and all other damages to which Tenants may be entitled as a result of City's acquisition of the Property for the Project. City to will payment Tenant the amount of ONE HUNDRED THIRTY-TWO THOUSAND AND NO/100 DOLLARS ($132,000.00) once Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Acquisition Settlement Agreement Page 1 ()1,8 25K-5 Abandonment of the Property, (3) turned over all sets of keys to the Property to the City or to City's agents, and (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations. C. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty, bonus value of City's obligations to compensate Tenant. d. As a matter of record, the compensation paid to Tenant in accordance with this ASA is does not include relocation benefits. 2. Release a. Tenant, on behalf of itself, its agents, assigns and related entities, agree to indemnify, fully release, acquit and discharge City, and the officers, directors, employees, attorneys, accountants, other professionals, insurers and agents of City (collectively "Agents") and all entities related to City, from any and all rights, claims, interests, demands, actions or causes of action which Tenant now has or may in the future have against City arising from the acquisition of the Property, including, but not limited to, trade fixtures, furniture and equipment, leasehold interests, and claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any), including claims from vendors, independent contractors, subtenants now and forever. b. No Party, nor any Agents, nor any related entities, to this ASA have made any statement or representation to any other Party regarding any fact relied upon in entering into this ASA, and each party expressly states it does not rely upon any statement, representation or promise of any other Party or any Party's Agent or related entities in executing this ASA, except as is expressly stated in this ASA. Each Party to this ASA has made such investigation of the facts and law pertaining to this ASA, and of all other matters pertaining hereto, as it deems reasonable, necessary and/or appropriate, and has consulted with legal counsel concerning the matters contained herein. 3. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity By Tenants - Tenant shall indemnify, defend and hold harmless City from and against any and all claims, demands, liabilities, losses, judgments, expenses and attorney's fees resulting from the breach by Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. Acquisition Settlement Agreement Pale 2 of '8 25K-6 5. Entire Agreement This ASA contains the entire Agreement of the Parties hereto pertaining to the subject matter discussed herein, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. This ASA may be modified only by a writing executed by the Parties hereto. 6. Partial Invalidily In the event that any term, covenant, condition or provision of this ASA shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 7. Waiver The provisions of this ASA may be waived, altered, amended or repealed, in whole or in part, only upon the written consent of all Parties to this ASA. The waiver by one party of the duty of performance by the other Party of any provision in this ASA shall not invalidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this ASA. 8. Headings The headings, subheadings and numbering of the different sections of this ASA are inserted for convenience only and shall not be considered for any purpose in construing this ASA. 9. Governing Law The rights and obligations of the parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 10. Successors In Interest Subject to any restrictions against assignment contained herein, and to any legal limitations on the power of the signatories to bind non-signatories to this ASA, this ASA shall inure to the benefit of, and shall be binding upon, the assigns, successors-in-interest, personal representatives, executors, estate, heirs, legatees, Agents and related entities of each of the Parties hereto. 11. Necessary Acts Each Party to this ASA agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this ASA. Acquisition Settlement Agreement Pay=e 3 of 8 25K-7 12. Advice Of Counsel Each Party hereto, by its execution of this ASA, represents to every other Party that it has reviewed each term of this ASA with its counsel and hereafter no Party shall deny the validity of this ASA on the ground that the party did not have advice of counsel. Each Party to this ASA has had the opportunity to receive independent legal advice with respect to the advisability of entering into and being bound by this ASA and with respect to the meaning of California Civil Code § 1542. 13. Parties Have Not Transferred Right Or Claims The Parties hereto each represent and warrant to the other Party that they have not assigned, transferred or sublet to any third party any of the rights, claims, causes of action or items to be released or transferred which they are obligated to transfer or to release as part of this ASA. 14. Authority To Execute This Agreement Each Party executing this ASA represents that it is authorized to execute this ASA. Each Party executing this ASA on behalf of an entity, other than an individual executing this ASA on his or her own behalf, represents that he or she is authorized to execute this ASA on behalf of said entity. 15. -Construction Each Party has cooperated in the drafting and preparation of this ASA. In any construction or interpretation to be made of this ASA, or of any of its terms, conditions and/or provisions, the sarne shall not be construed against any party. 16. Notices All notices, requests, demands and other communications required or permitted to be given under this ASA shall be in writing and shall either be delivered in writing personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the Party at its address as set forth below, or at any other address that such Party may designate by written notice to the other Party: To City: City of Santa Ana,Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Attention: Souri Amirani To Tenant: Evans Roofing Company, Inc. 2020 South Yale Street Santa Ana, CA Acquisition Settlement Agrecment Pagc 4 of '8 25K-8 17. Counterparts This ASA may be executed in counterparts, each of which shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. IN WITNESS WHEREOF, the Parties have executed this Acquisition Settlement Agreement as of the date first written above. TENANT: Evans Roofing Company, Inc. By: ? Date- & i - ?4 2010 ar vans, E.O. CITY OF SANTA ANA: By: David N. Ream City Manager Date: 2010 ATTEST: By: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Date: , 2010 By Jose Sandoval Managing Senior Assistant City Attorney Date: Acquisition Settlement Agreement Page 5 of '8 , 2010 25K-9 25K-10