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HomeMy WebLinkAboutT & R KAWAKAMI, KENT OCHIAI, THOMAS K. KAWAKAMI AND RUTH K. KAWAKAMIn /J I JlA1 1 0 2016 (�© , MAO LOST RENTS AGREEMENT N-2016-078 This Lost Rents Agreement (hereinafter "Agreement") is entered into by and between the City of Santa Ana, a municipal corporation (hereinafter referred to as "City") and Kent Ochiai, an individual; Thomas K, Kawakami, Trustee of the T & R Kawakami Trust Established by Declaration of Trust Dated March 4, 1997, and Ruth K. Kawakami, Trustee of the T & R Kawakami Trust Established by Declaration of Trust Dated March 4, 1997 (collectively, "Oehini") as of the date of full execution by all parties. Ochiai and the City may be collectively referred to as "Parties" in this Agreement. RECITALS A. On or about December 24, 2014 ("Piling Date"), the City filed a Complaint in Eminent Domain ("Eminent Domain Action") in the Orange County Superior Court, Case No. 30-2014-00763309-CU-EI-CJC, seeking to acquire, inter alia, a fee interest in certain real property located at 1601 N. Bristol Street, in the City of Santa Ana, California, identified as Assessor Parcel No. 405-252-21 ("Property"), more particularly described in the Complaint in Eminent Domain. The Property is necessary for public right of way for Phase IIIB of the Bristol Street Widening Project in the City of Santa Ana, California ("Project"). B. The Property is located within the Bristol Street Corridor Specific Plan of the City of Santa Ana and is owned by Ochiai. C. Kent Ochiai, as a landlord, entered into a lease agreement with Trivalle Communications, LLC, a California limited liability company ("Trivalle") for occupancy of a portion of the Property. A copy of the Lease Agreement, marked as Exhibit A, is attached. D. On or about December 24, 2014, the City filed its Motion for an Order for Prejudgment Possession. The City subsequently requested that the Court remove the hearing on the City's Motion for Order for Prejudgment Possession from the Court's docket. The City, therefore, does not have legal possession of the Property. E. After receiving notice from the City of its eligibility for relocation assistance, Trivalle vacated the Property in anticipation of the City's Project on December 10 2015("Vacation Date"). The City and Ochiai now wish to enter into this Agreement to establish their respective rights and obligations with regard to the payment of rents lost as a result of Trivalle vacating the Property. AGREEMENT Based upon the foregoing, and based upon the mutual consideration set forth herein, the Parties agree as follows: Compensation for Lost Rents Up to the Possession Date: a. As payment for Ochiai's actual lost rents for the period of time from the Vacation Date until the City takes possession of the Property, the City shall pay to Ochiai $250.00 per month ("Lost Rents"). 55194.00016@7148407.1 - I - b. The City shall pay the amount sent forth in section 1(a) above in monthly installments, within thirty (30) days of this Agreement being fully executed. The initial payment shall be in the amount of $1,169.35 (One Thousand One Hundred Sixty Nine Dollars and Thirty Five Cents) representing actual lost rents from the Vacation Date until April 30, 2016. Equal payments of $250.00 shall be made thereafter for actual lost rents from May 1, 2016 until the City obtains legal possession of the Property. 2. Compensation for Post -Vacation Lost Rents. As a full settlement of any and all claims or potential claims for lost rents against the City after the Vacation Date of Trivalle, the City shall pay to Ochiai the lost rents caused by Trivalle's vacation of the Property, subject to the provisions set forth herein. Payment of Lost Rents to Ochiai for vacation of the Property by Trivalle shall not exceed twelve (12) months from the date of full execution of this Agreement. 3, Payment Information. Payment for the compensation set forth above is to be made by check, made payable to: Kent Ochiai c/o Chris D. Peterson, Esq. Peterson Law Group 19800 MacArthur Boulevard, Suite 290 Irvine, CA 92612 4. Security Deposit and Prepaid [tent. Ochiai will be solely responsible to return to Trivalle, because of the City's Project, any security deposit and/or any pro -rated or prepaid rent due to Trivalle. 5. Integration. This Agreement constitutes the entire agreement between the Parties hereto regarding lost rents and supersedes all prior and contemporaneous agreements and understandings of the parties regarding lost rents; there are no warranties, representations or other agreements between the parties regarding lost rents except as expressly set forth herein. No amendment hereto shall be binding unless set forth in a writing stating that it is intended to amend this agreement, executed by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any of the other provisions hereof, whether or not similar, nor shall such waiver constitute a continuing waiver. 6. Counterparts. This Agreement may be executed in counterparts and, as so executed, shall constitute one agreement binding on all parties. Executed copies sent by facsimile and/or email shall have the same force and effect as original signatures. 7. Severability. In the event that any provision of this Agreement is found by a Court of competent jurisdiction to be void or voidable, the remaining provisions of this Agreement shall remain in full force and effect. 8. Choice of Law and Enforcement. This Agreement and any dispute hereunder shall be governed by the laws of the State of California. In addition to any other means for 55394.00016\23148407.1 -2- 04/27/2016 12:24 7145427972 KEN1'_OCHIAI PAGE 04/07 enforcement provided in law or equity, this Agreement may be enforced pursuant to Code of Civil Procedure Section 664.6 before the Superior Court of California in Orange County, in which the .Eminent Domain Action is presently pending. 9. Each Party Authorized, By signing this Agreement, each party hereto attests that he or she is duly authorized by his or her respective corporation or entity, if applicable, to execute this Agreement. 10, went .Domain action. Ochiai enters into this Agreement without prejudice to claims for greater compensation for the City's acquisition of the real estate, the improvements pertaining to the realty, the non -moveable £nrniture, fixtures & equipment, for loss of business goodwill, and for relocation assistance. Dated: , CITY OF SANTA ANA, a munic'pal corporation By: Its Dated: L� Zai KENT T.00I-ITAI ` M By: .Dated: THOMAS K. KAWAKAML TRUSTEE OF THE T & R KAWAKAMI TRUST ESTABLISHED BY DECLARATION OF TRUST DATED MARCH 4, 1997 By:_' .. Dated: _ RUTH K. KAWAKAMI, TRUSTEE OF THE T & R KAWAKAMI TRUST ESTABLISHED BY DECLARATION O.F TRUST DATED MARCH 4, 1997 APPROVED AS TO FORM: Qk �Ljad/a -pagl_ ATT 5094,a)WWn148467.1 � eAh. HUI�AR - 3 - CLERK OF THE COUNCIL enforcement provided in law or equity, this Agreement may be enforced pursuant to Code of Civil Procedure Section 664.6 before the Superior Court of California in Orange County, in which the Eminent Domain Action is presently pending. 9. Each Party Authorized, By signing this Agreement, each party hereto attests that he or site is duly authorized by his or her respective corporation or entity, if applicable, to execute this Agreement. 10, Eminent Domain action. Ochiai enters into this Agreement without prejudice to claims for greater compensation for the City's acquisition of the real estate, the improvements pertaining to the realty, the non -moveable furniture, Fixtures & equipment, for loss of business goodwill, and for relocation assistance. Dated: CITY OF SANTA ANA, a municipal cotgovv*ion By: " ✓ / `. Its Dated: KENT T. OCHIAI WM Dated: TIIOMASkKAWAKAMI, TRUSTEE OFTIiE T & R KAWAKAMI TRUST ESTABLISHED BY DECLARATION OF TRUST DATED MARCH 4, 1997 r, r Dated: 4i 6 APPROVED AS TO FORM: �auam PT. :5794XM 16M J43407 I RUTH K. KAWAKAMI. TRUSTEE OF THE T & R KAWAKAMI TRUST ESTABLISHED BY DECLARATION OF TRUST DATED MARCH 4, 1997 ATTESM MARIA D. HUIZAR - 3- ` 0LERK OF THF.: COUNCIL Dated: Dated: 4/27/16 Public Works Agency BEST BESTA KRIEGER LLP By: -- ark A. Easter, Attorne CITY OF SANTA ANA PETERSON LAW GROUP PC Christopher D. Peterson, Attorney for KENT T. OCHIAI; THOMAS T. KAWAKAMI, TRUSTEE; RUTH K. / KAWAKAMI, TRUSTEE; KENT OCHIAI, DDS, INC. 55794.00016\27148407.1 -4- Public 4 - LEA5E AGREEMENT 1. Basic Provisions. This lease agreement is made by and between KENTT OCHIAI ("Landlord") and TRIVALLE COMMUNICATIONS, LLC (" Tenant") forSulte 6 at 1601 N. Bristol Street, Santa Ana, California (the "Premises',) 2. Term. r The tenancy commenced on,and continued on a month to month bans. Tenant will pay Landlord $250.00 (Two Hundred Fifty Dollars and Zero Cents) per month, each month an or by the first day of the month. 3 Premises and Use. Tenant will use the Premises for businesses purposes only as mutually agreed upon previously by Landlord and Tenant, Tenant may not sublet or assign this lease unless Landlord grants express. written Permission for Tenant :o do 50 Tenant will accept tce Prem se, 'as s.' and agrees not to create nuisance or waste, or use the Prerruses for any unlawfd; purpose. A Obligations. Tenant wid maintain the Premises in good order, condition and repair. Tenant will pay its pro rata share of all utilities. including but riot limited to gas, water, trash and ele or,cal. 5 Notice Tenant will provide a: least 30 days notice to Landlord prior to vacating the Premises. Landlord will provide at east 30 days notice to Tenant prior to canceling this lease for the Premises. KEN Al Bate TRIVALLE COMMUNICATIONS, LLC, by pate Sam Mitam