HomeMy WebLinkAbout25G - AGMT - RAIL SAFETY ENHANCEMENT PROJECTREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
MAY 7, 2012
CLERK OF COUNCIL USE ONLY:
TITLE: APPROVED
SETTLEMENT AGREEMENT WITH ? As Recommended
EVANS ROOFING COMPANY, INC. FOR El Amended
El Or dinance on 15t Reading
RIGHT-OF-WAY FOR THE AT- GRADE ? Ordinance on 2nd Reading
RAIL SAFETY ENHANCEMENT PROJECT ? Implementing Resolution
(PROJECT 091745) NO FISCAL IMPACT ? Set Public Hearing For_
CONTINUED TO
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IE G f/ FILE NUMBER
CITY MANAGER
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 $285,000 for right-of-way for the
At-Grade Rail Safety Enhancement Project, 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 at that location (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 St. in Santa Ana.
Council approved an initial acquisition settlement agreement on September 7, 2010 in the amount
of $132,000. At that time, this agreed-upon compensation for loss of business goodwill was based
on the estimate of the goodwill loss, as determined by an appraiser, licensed by the State of
California. Upon completion of the relocation of the tenant to 2020 S. Yale, it was determined that
the tenant was eligible for loss of business goodwill in the amount of $285,000. OCTA has
reviewed and approved this revised amount.
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Settlement Agreement With Evans Roofing Company, Inc.
Project 091745
May 7, 2012
Page 2
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.
FISCAL IMPACT
There is no fiscal impact to the City; all of the costs of this settlement are fully funded by OCTA,
per Cooperative Agreement number C-9-0823.
?e
Raul Godinez II
Executive Director'
Public Works Agency
RG/SA
Exhibit 1: Location map
Exhibit 2: Agreement
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EXHIBIT 1
ACQUIRED PROPERTIES
SANTA ANA
City Council
Title:
SETTLEMENT AGREEMENT FOR RIGHT OF
i
- ` Agenda Date WAY FOR THE AT- GRADE RAIL SAFETY
MAY 7, 2012
PUBLIC WORKS AGENCr ENHANCEMENT PROJECT (PROJECT
091745)
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EXHIBIT 2
ACQUISITION SETTLEMENT AGREEMENT
This Acquisition Settlement Agreement ("ASA") is entered into on , 2012
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 Evans Roofing
Company, Inc. ("Tenant"). City and Tenant may collectively be referred to in this ASA as the
"Parties."
RECITALS
A. Tenant operates a business on the Property commonly known as Evans Roofing, and
was the occupant of the real property and improvements located at 1101 E. Chestnut, Santa
Ana, California ("Property") until August 27, 2010.
B. Mark and Cindy Evans ("Landlord") were the fee owners of the Property. Landlord
and City negotiated a Purchase and Sale Agreement ("PSA") for the Property, which
resulted in the termination of Landlord's and Tenant's rights, title and/or interest in
the Property.
C. The Property is located within the Orange County Transportation Authority's Rail
Safety Enhancement Project Area and City acquired 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 relocation program and has 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 to Tenant the total sum TWO HUNDRED EIGHTY FIVE
THOUSAND AND NO/100 DOLLARS ($285,000.00), 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 Tenant may be entitled as a result of City's acquisition of the Property
for the Project.
b. City will make payment to Tenant in the amount of TWO HUNDRED EIGHTY
FIVE THOUSAND AND NO/100 DOLLARS ($285,000.00) immediately upon
City Council approval.
Acquisition Settlement Agreement
Page l of 5
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C. Payment of the consideration referenced in section 1 of this ASA shall constitute
full satisfaction of City's obligation to compensate Tenant for any and all loss of
business goodwill, leasehold interests, personal property, improvements
pertaining to realty and bonus value.
d. As a matter of record, the compensation paid to Tenant in accordance with this
ASA does not include relocation benefits.
2. Release
a. Tenant, on behalf of itself, its agents, assigns and related entities, agrees 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 Acquired
Property, including, but not limited to, trade fixtures, furniture and equipment,
leasehold interests, claims for loss of business goodwill, bonus value (if any)
and/or severance damages (if any), including claims from vendors, independent
contractors and 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.
Entire Agreement
This ASA contains the entire Agreement of the Parties hereto pertaining to the subject
matter discussed herein, and supersedes the ASA dated September 7, 2010 in the amount
of ONE HUNDRED THIRTY TWO THOUSAND DOLLARS AND NO/100
Acquisition Settlement Agreement
Page 2 of 5
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($132,000.00), which is null and void. This revised ASA may be modified only by a
writing executed by the Parties hereto.
6. Partial lnvalidity
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.
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
Each Party to this ASA agrees to perform any further acts and execute and deliver any
further documents that may be reasonably necessary to carry out the provisions of this
ASA.
12. Advice Of Counsel
Each Party hereto, by its execution of this ASA, represents to every other Party that
it has reviewed each term of this ASA with its counsel and hereafter no Party shall
deny the validity of this ASA on the ground that the party did not have advice of
counsel. Each Party to this ASA has had the opportunity to receive independent
legal advice with respect to the advisability of entering into and being bound by this
Acquisition Settlement Agreement
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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 same 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: Mark Evans
Evans Roofing Company, Inc.
2020 S. Yale St.
Santa Ana, CA 92704
Acquisition Settlement Agreement
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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 2012
Mark Evans, C.E.O.
CITY OF SANTA ANA:
By: Date: 2012
Paul M. Walters
Interim City Manager
ATTEST:
By:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joe Straka, Interim City Attorney
By:
Jose Sandoval
Managing Senior Assistant City Attorney
Date: .2012
Acquisition Settlement Agreement
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