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HomeMy WebLinkAbout25B - AGMT - BRISTOL ST CORRIDORREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 4, 2011 TITLE: SETTLEMENT AGREEMENTS FOR BRISTOL STREET CORRIDOR (PROJECT NOS. 081700 AND 116744) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER 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: Teresa Arellano dba Santa Ana Professional Services for acquisition settlement for the business located at 828 North Bristol Street, Suite 202 in the amount of $21,800. • Barney Svardloff, Trustee; Nathan Ogints, Trustee and; Steven Iker, Trustee for the purchase of a portion of the property located at 1715 North Bristol for the amount of $90,000. • Livescan N More for acquisition settlement for the business located at 1631 North Bristol Street, Suite 201 in the amount of $20,405. DISCUSSION On March 6, 2006, the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority to fund Bristol Street improvements from 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 April 2011. 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 Seventeenth Street. To accommodate the widening for the second phase, the entire property located at 828 North Bristol was acquired in November 2010 (Exhibit 1). This acquisition also necessitates the relocation of all tenants in the building. Santa Ana Professional Services is a tenant of the property and has agreed to the settlement agreement for the relocation of the business. 25B-1 Settlement Agreements For Bristol Street Corridor April 4, 2011 Page 2 In addition, the acquisition of a portion of the property at 1715 North Bristol and the entire property at 1631 North Bristol for is required for the intersection of Bristol and Seventeenth Street. Livescan N More is a tenant of the building at 1631 North Bristol and has agreed to a settlement of $20,405 for relocation benefits. This compensation amount is the appraised value prepared by an appraiser licensed by the State of California. 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 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: r Raul Godinez II Francisco Gutierrez FB Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/SA Exhibit 1: Location map Exhibit 2: Agreements 25B-2 LEGEND ® SUBJECT PROPERTIES I I ? I M 725 I I I I I I I N EXHIBIT 1 SANTA ANA CITY COUNCIL TITLE: SETTLEMENT AGREEMENTS FOR F % J AGENDA DATE BRISTOL STREET CORRIDOR PUBLIC VGRkS AGENCY APRIL 4, 2011 (PROJECT NOS. 081700 AND 116744) SANTA ANA SEVENTEENTH ST 25B-4 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City') and Teresa Arellano dba Santa Ana Professional Services ("Tenant"). The City and Tenant are hereinafter sometimes referred collectively as the "Parties." The Effective Date of this Agreement shall be , 2011, the date on which the Agreement has been fully executed by the City and Tenant. RECITALS A. Tenant operates a business, commonly known as Santa Ana Professional Services, located at 828 N. Bristol Street, Suite 202, Santa Ana, CA 92703 (the "Property"). B. The City has purchased the Property for the Bristol Street Widening Project. As a result of the City's acquisition, the Tenant will be displaced from the Property. C. The Parties desire to resolve all issues relating to the City'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 hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The City shall pay to Tenant the sum of $21,800.00 (Twenty-One Thousand Eight Hundred 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) below. Upon full execution of this Agreement, the City will begin processing payment, payable to Tenant, in the amount of $21,800.00 after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City'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 City 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 (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. Exhibit 2 25'6'--5 (c) Tenant agrees to vacate the Property on or before June 1, 2011 ("Vacate Date"). (d) Tenant hereby agrees that City may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desires, without any notice to Tenant. (e) Payment will be made for Relocation Expenses in the amount of $20,000. (f) Payment will be made for leasehold, loss of business goodwill and immovable furniture, fixtures and equipment in the amount of $1,800.00. 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, attorneys, 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 or 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, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, 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 City, (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 City'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 City. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim 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 executing the release, which if known by him/her must have materially affected his/her settlement with the debtor. 25t:6 Each party acknowledges the foregoing waiver 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 express 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 from 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, but 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 any 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 law 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 right, 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. (f) Tenant will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from 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. City has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and City 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. 2 5b'7 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. Indemnity 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. Partial Invalidit 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 shall continue in full force and effect. 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. 8. Headings 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 purpose in construing this Agreement. 9. Governing 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. 10. Successors In Interest Subject to any restrictions 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. 2 5b'8 11. Necessary 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. 12. 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. 13. Authority to Execute This Aqreement Each person executing this Agreement on behalf of an entity represents that he or she is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 14. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 15. 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. 16. Voluntary Agreement 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. 17. Notices All 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: 5of7 25B-9 To City: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Santa Ana Professional Services Attn: Teresa Arellano 801 N. Bush Street Santa Ana, CA 92701 18. 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 to 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 court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 25_10 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: BY: Dated n - iE? Teresa Are lano CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Managing Senior Assistant City Attorney Dated Dated Dated 7of7 25B-11 Claim for Fixed Payment in L ieu of Actual Moving and Related Expenses Business, Nonpro fit Organizations and Farm Operations FOR AGENCY USE ONLY INSTRUCTIONS: This claim is for the use of displaced businesses, nonprofit organizations, and from operations that wish to apply for a Fixed Payment in Lieu of Actual Moving Expenses rather than apply for Actual Moving Expenses. The Agency: City of Santa Ana minimum fixed payment is $ 1,000.00, the maximum fixed payment is $20,000.00. The Agency will explain the differences between the two payments. If you are eligible to choose either payment, the Agency representative will help you determine Project: Bristol Street Widening Project which is most advantageous, and will help you complete the form. If the full amount of you claim is not approved, the Agency will provide you with a written explanation of the reason. If you are not satisfied with the Agency's determination, you may Case STA-037-00828-202 appeal that determination. The Agency will explain how to make an appeal. This i h i f U if R l ocat on or the n orm information is being collected under the aut ty o e Assistance and Real Property Policies Act (URA) and/or California Relocation Program Rules: OPC Claim Serial Number: Assistance Act. [ ] Federal [X] State [ ] Other LGO1276 SECTION A: GENERAL 1. Name Under Which Claimant Conducts Operations: 2. Name, Title and Phone # of Person Filing Claim on Behalf of Claimant: Santa Ana Professional Services Teresa Arellano - E.A.-Owner - 7141245-0050 3a. Address From Which Claimant Moved: 3b. Date First Occupied: 3c. Date Move Started: 828 N. Bristol St., #202, Santa Ana, CA 111/2009 Pending 4a. Address to Which Claimant Moved: 4b. Date Move Completed: 5. Is This a Final Claim? Pending Pending [x] Yes [ ] No 6. Type of Operation (Check One): 7. Type of Ownership (Check One): [x] Business [ ] Farm Operation [ ] Nonprofit Operation [ X ] Sole Propriet. [ ] Corporation [ ] Partnership [ ] Nonprofit Org. 8. Computation of Payment ITEM AMOUNT CLAIMED • ' • (1) Amount from Line (3), (6), (9) or (12) of Section E on reverse. (if less than $1,000 enter $1,000, if more than $20,000 enter $20,000) $20,000.00 (2) Amount Previously Received for Expenses Claimed Here (if any) (3) Amount Requeted (Line (1) minus Line (2)) $20,000.00 9. Certification by Claimant(s) Warning: If you knowingly or deliberately make false statements on this form, you may be subject to civil or criminal penalties under Section 1001 of TRW is of the United states Code. 1 addition, you may not receive any of the amounts claimed on this form. I CERTIFY that this claim and supporting information are true and complete, that I have not submitted any other claim for the expenses listed, and that 1 have not been paid for the expenses by any other source. My choice of type of payment was trade on the basis of full explanation by the displacing Agency representative the difference between the two types of payment available and the eligibility requirements for each. Signature(s) of Claimant(s) or Claimant(s) Agent): Title (Type or Print): Date: 1 `? n '. FOR AGENCY USE ONLY Payment Action: Amount of Payment: Signature: Name (Type or Print): Date: 10. Recommended $20,000.00 Michele Folk/Principal 3/912011 11. Approved $20,000.00 Overjan 4 Pac#lc dt Curler, Inc Page 1 of 2 25B-12 -nr na -'mA• SECTION B: Name and Address or Other Establishments Operated By or Affiliated With Business or Nonprofit Organization (If None, type "None") Name: None Address: Type of Business or Activity: SECTION C: Gross Receipts Determination for Business or Farm Operations ITEM BASE PERIOD Year:2009 Year:2010 Average: Gross Receipts or Gross Sales, Less Returns and Allowances $103,972.00 $133,959.00 :118,965.50 SECTION D: General Tax Information (NOT to be completed by Nonprofit Organizations) Name(s) Used on Income Tax Return(s) Tax Returns Filed with Director of Internal Revenue In: Teresa Arellano YEAR CITY STATE Employer Identification Number(s) Shown on Tax Return(s) 20-4151168 2009 Santa Ana CA Principal Business Activity Type Reported on Tax Return(s) Tax preparation services 2010 Santa Ana CA SECTION E: Computation of Average Net Earnings or Net Revenues for Base Period ITEM (com lete a iat table) ro BASE PERIOD p pp pr e I Year: 2009 Year: 2010 Average: TABLE I: INDIVIDUAL OR SOLE PROPRIETOR (Relates to IRS Form 1040) (1) Net Profit (or Loss) Before Taxes from IRS Form 1040 $54,028.00 $66,774.00 (2) Compensation Paid to Owner, Owners Spouse and Dependents (List names and amounts in Remarks) (3) Net Earnings (Add lines (1) and (2) $54,026.00 $66,774.00 $60,401.00 TABLE II: CORPORATION (Relates to IRS Form 1120 or 1120-S) (4) Taxable Income (form 1120) or Ordinary Income (form 1120-S) (5) Compensation Paid to Principal Stockholders, Their Spouses and Dependents (List names and amounts in Remarks) (6) Net Earnings (Add lines (4) and (5)) $0.00 $0.00 $0.00 TABLE III: PARTNERSHIP (Relates to IRS Form (1065) (7) Ordinary Income (or Loss) Before Taxes from IRS Form 1065 (8) Compensation Paid to Principal Partners, Their Sopuses and Dependents (List names and amounts in Remarks) (9) Net Earnings (Add lines (7) and (6)) $0,00 $0.00 $0.00 TABLE IV: NONPROFIT ORGANIZATION (10) Annual Gross Revenues: (11) Administrative Expenses: (12) Net Revenues (Subtract line (11) from line (10) $0.00 $0.00 $0,00 REMARKS: Based on Santa Ana Professional Services annual net earnings they are eligible for the maximum $20,000 fixed payment in lieu of a payment for actual reasonable moving and related expenses. Overland Pacific & Culler. Inc. Page 2 or 2 25B-13 =BC-05 (4/04) SANTA ANA PROFESSIONAL SERVICES IMPROVEMENTS PERTAINING TO THE REALTY REPORTEDLY OWNED BY THE TENANT, TERESA ARELLANO EFFECTIVE DATE OF VALUE - MARCH 24, 2010 Fair Market Forced Item Value in Liquidation No. Qty. Description Place Value 2 1 Lot of network and data cabling for 6 computer stations $1,350 $Q I elephone system, Nortel, full feature, 3-line, including 50 500 9 hand sets 4 1 Lot of minor miscellaneous accessories, including, but 450 0 not limited to hooks, fasteners, wall bolts, television wall mount, and miscellaneous door signage 5 Note. The following leasehold improvement was installed by the lessee. It is included in the related real estate appraisal report; therefore, it is not included herein in order to avoid duplication of compensation. • Laminate strip flooring TOTAL IMPROVEMENTS PERTAINING TO THE REALTY - TENANT 2 $5,250 $500 25B-14 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT, entered into this _ day of , 2011, 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 Barney Svardloff Trustee of the Barney Svardloff Trust Dated March 21, 1981, as to an undivided 50 percent interest; Nathan Ogints Trustee of the Nathan Ogints Trust "A" Dated January 10, 1983, as to an undivided 16.67 percent interest and; Steven Iker Trustee of the Steven Iker and Sharon Iker Revocable Trust as their interest appear of record, as to un undivided 33.33 percent interest (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 EXHIBIT "A" & "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 1715 N. Bristol Street, Santa Ana, CA 92706) 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. 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 NINETY THOUSAND AND NO/100 Dollars ($90,000.00) 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. 25B-15 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 Exhibit "C" 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 Exhibit "C" 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 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. 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 NINETY THOUSAND AND NO/100 Dollars ($90,000.00). 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 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. Intentionally Omitted. 25B-16 9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained 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 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: Alan Kalman 137 S. Robertsons Blvd., # 122 Beverly Hills, CA 90211 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. A. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property, with the exception of paragraph 17.B., below. 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 seq. (42 U.S.C. 86903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the 25B-17 Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seg. (42 U.S.C. S9601). B. Seller hereby discloses, and Buyer was and is aware, that a gasoline station (owned by Chevron U.S.A. Inc.'s predecessor, Standard Oil Company of California) existed on a portion of Seller's property from 1955 to 1985. During the course of negotiation of a lease between Seller and the current tenant, Walgreen Co., soil samples revealed levels of contamination at the site of the former gasoline station warranting additional testing and eventually warranting the placement of monitoring wells, at the direction of the California Regional Water Quality Control Board, Santa Ana Region. An Environmental Agreement was entered into by and among Seller, Walgreen Co., and Chevron, requiring Chevron to install the necessary groundwater monitoring wells and perform all clean up and testing required by the California Regional Water Quality Control Board, Santa Ana Region, with the full knowledge, input, consent and oversight of the City of Santa Ana. Said Agreement provided for indemnity by Chevron of Seller and Walgreen Co. regarding the contamination, clean up and monitoring of contamination on the property. 18. Compliance With Environmental Laws. To the best of Seller's 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. Indemnity. A. With the exception of paragraph 19.13, below, Seller agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out 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 (ii) 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 about, to or from, the 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, suit 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 created 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. B. Said indemnity does not extend to the existence of contamination disclosed and described in Paragraph 17.13, above. 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. 25B-18 29. 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. Governinn 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. Authoritv 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. 30. Construction Contract and Curative Work. (a) It is understood and agreed by and between the parties hereto in addition to the compensation shown in Paragraph 2 hereinabove, the Buyer, its contractors or assigns, shall perform the following construction contract items at the time of the installation of the proposed project: i. remove 350 SF of concrete paving ii, remove 837 SF of irrigation system iii. remove 837 SF of landscaped area iv. Rework irrigation system (b) It is understood and agreed by and between the parties hereto that the compensation paid to Seller through this Agreement includes the value of the cost to remove, relocate, reconstruct and/or refurbish the following improvements located on the Property: i. None 25B-19 31. 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: Barney Svardloff Trustee of the Barney Svardloff Trust Dated March 21, 1981, as to an undivided 50 percent interest; Nathan Ogints Trustee of the Nathan Ogints Trust "A" Dated January 10, 1983, as to an undivided 16.67 percent interest and; Steven Iker Trustee of the Steven Iker and Sharon Iker Revocable Trust as their interest appear of record, as to un undivided 33.33 percent interest Alan Kalman, Successor Trustee of Barney Svardloff Trust Dated March 21, 1981 Nathan Ogints, Trustee Steven Iker, Trustee CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: Dated Dated Dated BY: Dated Maria D. Hulzar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney BY: Dated Jose Sandoval Managing Senior Assistant City Attorney 25B-20 LICENSE AND RIGHT OF ENTRY Barney Svardloff Trustee of the Barney Svardloff Trust Dated March 21, 1981, as to an undivided 50 percent interest; Nathan Ogints Trustee of the Nathan Ogints Trust "A" Dated January 10, 1983, as to an undivided 16.67 percent interest and; Steven Iker Trustee of the Steven Iker and Sharon Iker Revocable Trust as their interest appear of record, as to un undivided 33.33 percent interest, (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 improvements associated with the 17th & Bristol Street Intersection Widening Project. Improvements include the installation of a new public sidewalk and driveway, as shown on the real property described as follows: SEE EXHIBIT "A" and "B" 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 as shown in the Exhibit "C" drawings. (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) 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. The rights herein granted to the Licensee, are exclusive, and the Licensee agrees not to assign, transfer, lease, pledge, or otherwise dispose of its License and Right of Entry without the prior expressed written approval of the undersigned. No right of entry to existing buildings is conveyed by this instrument. Licensee represents that it is and will be at all times during this License, self insured up to One Million dollars and carries excess insurance coverage of up to One Hundred and Two Million dollars as more specifically described in the letter dated March 9, 2011 attached to this Right of Entry. This License and Right of Entry shall expire upon completion of said construction work, and in any event, no later than , 2014, unless extended by written agreement between the undersigned and the Licensee. Page 1 of 2 25B-21 SELLER: Barney Svardloff Trustee of the Barney Svardloff Trust Dated March 21, 1981, as to an undivided 50 percent interest; Nathan Ogints Trustee of the Nathan Ogints Trust "A" Dated January 10, 1983, as to an undivided 16.67 percent interest and; Steven Iker Trustee of the Steven Iker and Sharon Iker Revocable Trust as their interest appear of record, as to un undivided 33.33 percent interest By: CITY OF SANTA ANA a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California BY: David N. Ream, City Manager APPROVED AS TO FORM: Alan Kalman, Successor Trustee of JOSEPH STRAKA Barney Svardloff Trust Dated March 21, 1981 City Attorney By: Nathan Ogints, Trustee By: Steven Iker, Trustee BY: Date Page 2 of 2 Jose Sandoval Chief Assistant City Attorney 25B-22 EXHIBIT "A" & "B" 25B-23 EXHIBIT "A" LEGAL DESCRIPTION PARCEL "A" That portion of Parcel I of Parcel Map No, 88-100, in the City of Santa Ana, County of Orange, State of California, per map filed in Book 248, Pages 9 and 10 of Parcel Maps in the office of the County Recorder of said Orange County, lying westerly and southwesterly of the following described line; Commencing at the centerline intersection of Bristol Street with 170i Street as shown on said Parcel Map; thence northerly along said centerline of Bristol Street, North 00°42'50" East, 293.37 feet to the westerly prolongation of the northerly line of said Parcel 1; thence easterly along said westerly prolongation, North 89150'00" East, 60.01 feet to the northeasterly corner of the Easement for Street Purposes as described in Easement Deed recorded July I7, 2009 as Instrument No. 2009000383091, Official Records of said County Recorder; thence southerly along the easterly Right of Way line of Bristol Street per said Easement Deed, South 00°42'50" West, 63.75 feet to the True Point of Beginning and the beginning of a curve concave easterly, having a radius of 50.00 feet; thence southerly along said curve 10.67 feet, through a central angle of 12°13'35"; thence South 11 °30'45" East, 35.44 feet to the beginning of a curve concave westerly, having a radius of 60.00 feet; thence southerly along said curve 12.80 feet, through a central angle of 12°13'35" to a line which is parallel with and 70.00 feet easterly of said centerline of Bristol Street, said curve being tangent to said parallel line; thence southerly along said parallel line, South 00°42'50" West, 82.54 feet to the intersection with a line which is parallel with and 2.50 feet northeasterly of the southeasterly line of said Easement Deed; thence southeasterly along said parallel line, South 44°44'04" East, 35.03 feet to the intersection with a line which is parallel with and 64.00 feet northerly of the centerline of said 170i Street, said parallel line being the southerly line of said Parcel 1 and the northerly Right of Way line of 17`h Street per said Parcel Map. Except that portion of said Parcel 1 described in Easement Deed recorded July 17, 2009 as Instrument No. 20090003 8309 1, Official Records in the office of said County Recorder. Containing 1,187 square feet, more or less. 25B-24 All as shown on Exhibit "B", attached hereto and by this reference made a part hereof. Subject to all Covenants, Rights, Rights-of-Way and Easements of record, if any. Prepared by me, or under my direction on p " ? D?pl LAND Raymon J. 'vera, PLS 8324 RIVP SGT Expires 12/31/11 Iz- PLS 8324 EXP. 12-31-11 OF 25B-25 i ?h W M '??° ac o ry PLS 8324 * n, NWLY CORNER Q J, D?.12-31-11 PARCEL 1 TgjF OF CA?.% ( 40' P.M.B. 248/9-10 N89'50'00"E 275.00' (N. T. S. 60.01' 224.99' . 50' Li N00'42'50"E 63.75 10 00' L2 N11'30'45"W 35.44 60 L3 N00'42'50"E 82,54' L4 N44'44'04"W 35.03' T.P.O.I3. L5 N44'44'04"W 44.14' L6 N00'42'50"E 134.14' C4 h• M ???°?°?04 N PARCEL "A" b,? N c 1,187 SO FT e ?o ? J o C5 Cn ¢ co 10' E Cl ©=90'53'48" R=27.00' L=42.83' f? °o C2 A=19'09'25" R=108.35' L=36.23' 70' C3 d=19.12'44" R=108.35' , L=36.33' o C4 6=12'13'35" R=50.00' L=10.67' j 50' 1 Q' C5 A=12'13'35" R=60.00' L=12.80' o N o w 80 1715 °F 399--085-20 N M z''???a oQ• ?? S 108.63' C2 2.00' & 7N89'49'02"E 126.17' 3.51 C3 ( 14.03' 4 ca ca 0 P. 0. C. N89'49'02"E 17TH STREET EXHIBIT "B" SANTA ANA A.P. NO. 399-085-20 !7VMVA SKETCH TO 'ACCOMPANY n,:?? ,"'?!? LEGAL DESCRIPTION 25B-26 EXHIBIT "C" 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. 25B-27 EXHIBIT "C" SIQEMALK v y f 4- ' PROAPPRJRH I vE 11 PROP OSED ED ' SI EWALK it ;. ? PROPOSF?O pECORAT I YE ;.. j, . CONC E E PLAZA ) ?• :'q a ?• ? t S j. y r * r .Ili \,y `.,' I I= CONSTRUCTION COORDINATION I - NOTIFICATION 2 WEEKS PRIOR TO ENTIRE PROJECT START - NOTIFICATION 48 HOURS PRIOR TO WALGREENS SITE SPECIFIC CONSTRUCTION - DRIVEWAY ACCESS WILL REMAIN AT ALL TIMES - LARGE BUISNESS OPEN DURING CONSTRUCTION' SIGNS WILL BE POSTED - CONSTRUCTION OF ENTIRE PROJECT WILL BEGIN AROUND MAY 2011 - DETAILED SCHEDULE OF WORK FOR THE NE CORNER PROVIDED PRIOR TO CONSTRUCTION START CRA L i XIS O 8 ?? F MATC H B WALK _X (RIGHT OF ENTRY) ' ww a vi (rTREE • WALGREENS IS RESPONSIBLE FOp REWORKING IRRIGATION AS NECESSARY j kPPOSEO PALM TREE W EXISTING PALM TREE TO REMAIN s (JEW PROPOSED PALM TREE, !'• ?'' (RIGHT AL REEN a * ' i i i T AZA? OF ENTRY) I V EXIST NG [ATCH ' - BASIN 40 REMAIN r ,,-„ GP,t10NR QSA. I SANTA ANA / Pr? BRISTOL / 17TH WIDENING V WALGREENS COORDINATION 25B-28 t ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City") and Livescan N More ("Tenant"). The City and Tenant are hereinafter sometimes referred collectively as the "Parties." The Effective Date of this Agreement shall be , 2011, the date on which the Agreement has been fully executed by the City and Tenant. RECITALS A. Tenant operates a business, commonly known as Livescan N More, located at 1631 N. Bristol Street, Suite 201, Santa Ana, CA 92706 (the "Property"). B. The City has made an offer and intends to purchase the Property for the Bristol Street Widening Project. As a result of the City's pending acquisition, the Tenant will be displaced from the Property. C. The Parties desire to resolve all issues relating to the City'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 hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The City shall pay to Tenant the sum of $20,405.00 (Twenty Thousand Four Hundred and Five 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) below. Upon full execution of this Agreement, the City will begin processing a payment, payable to Tenant, in the amount of $20,405.00, which will be paid to Tenant after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City'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 City 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 (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. 1 of 7 25B-29 (c) Tenant agrees to vacate the Property on or before April 18, 2011 ("Vacate Date"). (d) Tenant hereby agrees that City may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desires, without any notice to Tenant. (e) Payment will be made for Relocation Expenses in the amount of $20,000. (f) Payment will be made for leasehold, loss of business goodwill and immovable furniture, fixtures and equipment in the amount of $405. 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, attorneys, 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 or 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, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, 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 City, (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 City'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 City. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim 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 executing the release, which if 2of7 25B-30 known by him/her must have materially affected his/her settlement with the debtor. Each party acknowledges the foregoing waiver 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 express 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 from 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, but 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 any 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 law 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 right, 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. (f) Tenant will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from 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. City has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and City now wish to enter into this Agreement in lieu of eminent domain proceedings. 3of7 25B-31 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. Indemnity 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. Partial Invalidity 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 shall continue in full force and effect. 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. 8. Headings 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 purpose in construing this Agreement. 4 of 7 25B-32 9. Governing 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. 10. Successors In Interest Subject to any restrictions 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. 11. Necessary 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. 12. 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. 13. Authority to Execute This Agreement Each person executing this Agreement on behalf of an entity represents that he or she is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 14. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 15. 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. 5of7 25B-33 16. Voluntary Agreement 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. 17. Notices All 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 City: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Livescan N More Attn: Michelle Smith 1631 N. Bristol, Suite 201 Santa Ana, CA 92706 18. 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 to 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 court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 6 of 7 25B-34 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: BY: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Managing Senior Assistant City Attorney Dated ?fl Dated Dated Dated Dated 7 of 7 25B-35 Claim for Fixed Payment in Lieu of Actual Moving and Related Expenses Business, Nonpro fit Organizations and Farm Operations I FOR AGENCY USE ONLY This claim is for the use of displaced fxuinesses, nonprofit organisations, and from operations that wish to apply for a Fixed Payment in Lieu of Actual Moving Expenses rather than apply for Actual Moving Expenses. The Agency: City of Santa Ana minimum fixed payment is $1,000.00; the maximum fixed payment is S20,000.00. The Agency will explain the differences between the two payments. If you are eligible to choose either payment, the Agency representative will help you determine Project: Bristol Street Widening Project which is most advantageous, and will help you complete the form. If the full amount of your claim is not approved.. the Agency will provide you with a written explanation of the reason. If you are not satisfied with the Agency's determination, you may Case #: STA-036-01631-201 appeal that determination. The Agency will explain how to make an appeal. This information is being collected under the authority of the Uniform Relocation Assistance and Real Property Policies Act (URA) and/or California Relocation Program Rules: OPC Claim Serial Number: Assistance Act. [ ] Federal [X] State [ ] Other LG01275 SECTION A: GENERAL 1. Name Under Which Claimant Conducts Operations: 2. Name, Title and Phone # of Person Filing Claim on Behalf of Claimant: Livescan N More Michelle Smith, Owner - 7141568-1516 3a. Address From Which Claimant Moved: 3b. Date First Occupied: 3c. Date Move Started: 1631 N. Bristol, Ste. 201, Santa Ana, CA 111/2008 Pending 4a. Address to Which Claimant Moved: 4b. Date Move Completed: 5. Is This a Final Claim? Pending Pending [x] Yes [ ] No 6. Type of Operation (Check One): 7. Type of Ownership (Check One): [x] Business [ ] Farm Operation [ ] Nonprofit Operation [ X ] Sole Propriet. [ ] Corporation [ ] Partnership [ ] Nonprofit Org. 8. Computation of Payment ITEM AMOUNT CLAIMED FOR AGENCY USE ONLY (1) Amount from Line (3), (6), (9) or (12) of Section E on reverse. (if less than $1,000 enter $1,000, if more than $20,000 enter $20,000) $20,000.00 (2) Amount Previously Received for Expenses Claimed Here (if any) (3) Amount Requeted (Line (1) minus Line (2)) $20,000.00 9. Certification by Claimant(s) Warning: 11 you knowingly or deliberately make false statements on this form, you may be subject to civil or criminal penalties under Section 1001 of Title 111 or the United States Code In . addition, you may not receive any of the amounts claimed on this form. I CERTIFY that this claim and supporting information are true and complete, that I have not submitted any other claim for the expenses listed, and that I have not been paid for the expenses by any other source. My choice of type of payment was made on the basis of full explanation by the displacing Agency representative the difference between the two types of payment available and the eligibility requirements for each. Signature(s) of Claimant(s) or Claimant(s) Agent): Title (Type or Print): Date: 1 FOR AGENCY USE ONLY Payment Action: Amount of Payment. Signature: Name (Type or Priny: Date: 10. Recommended $20,000.00 IRA" Michele Folk/Principal 31912011 11. Approved $20,000.00 Overland Pacy1c & Cutler, Inc. Page. 1 of') 25B-36 =sC-05 (4/04) SECTION B: Name and Address or Other Establishments Operated By or Affiliated With Business or Nonprofit Organization (if None, type "None") Name: None Address: Type of Business or Activity: SECTION C: Gross Receipts Determination for Business or Farm Operations ITEM BASE PERIOD Gross Receipts or Gross Sales Less Returns and Allowances Year:2009 Year:2010 Average: , $23,100.00 $149,604.00 $86,352.00 SECTION D: General Tax Information (NOT to be completed by Nonprofit Organizations) Name(s) Used on Income Tax Return(s) Tax Returns Filed with Director of Internal Revenue In: Michelle Smith YEAR CITY STATE Employer Identification Number(s) Shown on Tax Return(s) 570-08-9010 2009 Santa Ana CA Principal Business Activity Type Reported on Tax Retum(s) Livescan/Notary/Office services 2010 Santa Ana CA SECTION E: Computation of Average Net Earnings or Net Revenues for Base Period ITEM (complete appropriate table) BASE PERIOD I Year: 2009 Year. 2010 Average: TABLE l: INDIVIDUAL OR SOLE PROPRIETOR (Relates to IRS Form 1040) (1) Net Profit (or Loss) Before Taxes from IRS Form 1040 ($3,252.00) $48,142.00 (2) Compensation Paid to Owner, Owner's Spouse and Dependents (List names and amounts in Remarks) (3) Net Earnings (Add lines (1) and (2) ($3,252.00) $48,142.00 $24,071.00 TABLE II: CORPORATION (Relates to IRS Form 1120 or 1120-S) (4) Taxable Income (form 1120) or Ordinary Income (form 1120-S) (5) Compensation Paid to Principal Stockholders, Their Spouses and Dependents (List names and amounts In Remarks) (6) Net Earnings (Add lines (4) and (5)) $0.00 $0.00 $0.00 TABLE III: PARTNERSHIP (Relates to IRS Form (1065) (7) Ordinary Income (or Loss) Before Taxes from IRS Forth 1065 (8) Compensation Paid to Principal Partners, Their Spouses and Dependents (List names and amounts in Remarks) (9) Net Earnings (Add lines (7) and (8)) $0,00 $0.00 $0.00 TABLE IV: NONPROFIT ORGANIZATION (10) Annual Gross Revenues: (11) Administrative Expenses: (12) Net Revenues (Subtract fine (11) from line (10) $0.00 $0.00 $0.00 REMARKS: Based on Livescan N More's annual net earnings they are eligible for the maximum $20,000 fixed payment in lieu of a payment for actual reasonable moving and related expenses. Overland, Pacific & Custer, Inc. Page 2 or2 25B-37 =BC-05 (4/04) LIVESCAN FINGERPRINTS IMPROVEMENTS PERTAINING `f O THE REALTY EFFECTIVE DATE OF VALUE - APRIL. 14, 2010 Fair Market Forced Item Value in Liquidation No. Qty. Description Place Value I I Lot of data cabling and computer networking for $270 $0 2 computer stations 2 1 Lot of minor miscellaneous installations, including, but 135 0 not limited to, hooks, fasteners, brackets, wall bolts, and nails TOTAL IMPROVEMENTS PERTAINING TO THE REALTY $405 $0 25B-38