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HomeMy WebLinkAboutOTERO, MIKE (DBA, BOTANICAL SOL) - 2016INSURANCE NOT REQUIRED WORK MAY PROCEED A-2016-376 CLERK OF COUNCIL DATE: 1-n -11 SELL ALL (NO SALVAGE) Project: Bristol Street Improvement Project— Phase 4 APN: 015-194-22 Tenant -Seller: Mike Otero dba Botanica Sol AGREEMENT FOR ACQUISITION OF TENANT -SELLER'S INTEREST IN REAL PROPERTY THIS AGREEMENT ("Agreement") is entered into as of this 20 day of beco. h e , 2016, 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 ("Buyer"), and MIKE OTERO DBA BOTANICA SOL ("Tenant -Seller") for the acquisition by Buyer of certain interests in real property described herein. IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. AGREEMENT. Tenant -Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase and acquire from Tenant -Seller, upon the terrns and for the consideration set forth in this Agreement, (a) all right, title and interest, in and to certain improvements, including fixtures and equipment (collectively "Improvements") located in, on, or affixed in any manner to the premises known and numbered as 2123 S. Bristol Street, Santa Ana, California ("Premises") which Premises are part of that real property described in Exhibit A attached hereto, located in the City of Santa Ana, Orange County, California ("Property"), and (b) any tenancy interest of Tenant -Seller ("Tenancy Interest") in and to the Premises and the Property. The Improvements to be conveyed by Tenant -Seller are a part of the Premises, and specifically include, without limitation, the items described in the list of Improvements Pertaining to the Realty attached hereto as Exhibit B. 2. PURCHASE PRICE. The total purchase price, payable in cash through this Agreement, shall be the sum of: THIRTY-ONE THOUSAND, THREE HUNDRED FIFTY- FIVE AND NO/100 DOLLARS ($31,355.00) ("Purchase Price") 3. CONVEYANCE OF INTEREST IN REAL PROPERTY. Tenant -Seller agrees to execute a Quitclaim Deed in the same form as that attached hereto as Exhibit C in favor of Buyer ("Quitclaim Deed"), relinquishing, releasing, and forever quitclaiming to Buyer all right title and interest in and to the Tenancy Interest. 4. Tenant -Seller has vacated the property as of August 30, 2016. 5. CONVEYANCE OF INTEREST IN IMPROVEMENTS. The Quitclaim Deed (Exhibit C) will also convey from Tenant -Seller to Buyer all of Tenant -Seller's interest in and to the Improvements, which conveyance shall be free and clear of all recorded and unrecorded encumbrances, liens, assessments, leases, and taxes. Unless otherwise provided, recording of the Quitclaim Deed and Closing (as defined below) of the transaction described herein shall be subject to Tenant -Seller's vacation of the Premises and proof of clear title to all said Improvements having been obtained and received by Buyer in accordance with Paragraphs 8 and 9 of this Agreement. 1 6. RECORDING. Recordation of any documents delivered through this Agreement is authorized if necessary or proper, upon acceptance by Buyer as described herein. 7. CERTIFICATION OF OWNERSHIP. Tenant -Seller hereby warrants and certifies under penalty of perjury that Tenant -Seller is the owner of the Improvements and that no document has been signed by or on behalf of Tenant -Seller for the purpose of creating any lien, encumbrance, or security interest in any of the Improvements, and that the Tenant -Seller does not know of any claim of lien, encumbrance, or other security interest therein, EXCEPT: (a) Trust Deeds on the Property, duly recorded; and (b) real and personal property taxes. 8. PERMISSION TO ENTER PREMISES. Tenant -Seller hereby grants Buyer or its authorized agent's permission to enter upon the Premises at all reasonable times prior to Closing of this transaction for the purpose of making necessary inspections. 9. BULK SALE. In order to establish proof of clear title to the Improvements, Buyer may publish a Notice to Creditors pursuant to the Bulk Sales Law of the State of California and obtain a title report and/or a report from the Secretary of State's Office as to filings of security interests covering the Improvements. 10. CONFLICTING INTERESTS. In the event any conflicting claim of title or any security interest or lien of any kind is discovered or asserted as to any of the Improvements, Buyer shall, upon receiving notice or knowledge thereof, withhold an amount otherwise payable to Tenant -Seller as is reasonably necessary, in the sole opinion of Buyer, to protect Buyer against such claim of interest or lien. The withholding of such funds shall not prevent Closing of this transaction if the total funds to be withheld from Tenant -Seller do not exceed the net amount to be paid to Tenant -Seller through this transaction. Buyer will not pay out the withheld funds or disburse any withheld funds to any claimant or other party (except upon court order or levy) without the written consent of Tenant -Seller. A general creditor's claire shall not be deemed to be a claim against any specific item of Improvements and Tenant -Seller hereby agrees to accept all responsibility therefore. Unless otherwise provided, it shall be presumed that Tenant -Seller is entitled to payment under this transaction for the Improvements. It shall be presumed that the Property owner is the owner of all improvements, fixtures and equipment associated with the Premises other than the Improvements. 11. DISMISSAL OF EMINENT DOMAIN ACTION. If Buyer has previously filed an action to condemn the Tenancy Interest and/or Tenant -Seller's interest in the Improvements, Tenant -Seller hereby consents to the dismissal of such action and waives any claims for compensation, costs, attorney's fees and deposits in said action, or any claim whatsoever which might arise out of the filing of such action, whether or not such claim is specifically identified herein. Tenant -Seller hereby authorizes Buyer to withdraw and make payable to Buyer any funds deposited with the Court in any such eminent domain action. 12. CLOSING; PURCHASE PRICE ADJUSTMENTS. Recording of the Quitclaim Deed by Buyer will constitute "Closing" of this transaction. At Closing, Buyer will pay the Purchase Price to Tenant -Seller, subject to the following adjustments: A. Pay and charge Tenant -Seller for any and all current and/or delinquent taxes and any penalties and interest thereon, and for any delinquent or non -delinquent assessments or bonds against the Improvements and the Tenancy Interest. B. Pay and charge Tenant -Seller for any amount necessary to place title in the condition necessary to satisfy Paragraphs 4 and 9 of this Agreement; C. Disburse funds when conditions of this Agreement have been satisfied by Buyer and Tenant -Seller. 13. FULL AND COMPLETE SETTLEMENT. Tenant -Seller hereby acknowledges that the compensation paid to Tenant -Seller through this Agreement constitutes the full and complete settlement of any and all claims against Buyer, resulting from or arising out of Buyer's acquisition of the Property and the Tenancy Interest and any dislocation of Tenant -Seller from the Premises, specifically including, but not limited to the value of the Improvements, leasehold improvements, any and all claims for rental or leasehold value and any and all claims in inverse condemnation and for precondemnation damages, and any and all other claims that Tenant -Seller may have, whether or not specifically mentioned here, relating directly or indirectly to the acquisition by Buyer of the Property, the Improvements and the Tenancy Interest (but excluding relocation benefits to which Tenant -Seller may be entitled and the loss of business goodwill, if any). Tenant -Seller and Buyer and each and all of their agents, representatives, attorneys, principals, predecessors, successors, assigns, administrators, executors, heirs, and beneficiaries (collectively "Releasees"), hereby release the other party, and its Releasees, and each of them from any and all obligations, liabilities, claims, costs, expenses, demands, debts, controversies, damages, causes of action, including without limitation those relating to just compensation or damages which any of them now have, or might hereafter have by reason of any matter or thing arising out of or in any way related to any condemnation action affecting the Property, the Improvements and the Tenancy Interest. Additionally, Tenant -Seller does hereby disclaim any right, title or interest in or to the Premises. The payment terms set forth herein, provide full payment for the acquisition any and all property interests Tenant -Seller may have in the Premises. Tenant -Seller hereby expressly and unconditionally waives any claims (known or unlmown) including severance damages, statutory interest, claims for inverse condemnation or unreasonable pre -condemnation conduct, or any other compensation, damages or benefits, arising from the acquisition of the Premises that Tenant -Seller may have against Buyer, its officials, representatives, and attorneys. 14. ACKNOWLEDGMENT CONCERNING CIVIL CODE SECTION 1542. Tenant -Seller acknowledges that it has been advised by its attorneys concerning, and is familiar with, the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if lmown by him or her must have materially affected his or her settlement with the debtor." Tenant -Seller acknowledges that it and any others acting on its behalf herein may have sustained damage, loss, cost, or expenses that are presently urtmown and unsuspected and 3 which may give rise to additional damages, loss, costs, or expenses in the future. Nevertheless, Tenant -Seller aclaiowledges that this Agreement has been negotiated and agreed upon in light of that situation and hereby expressly waives any and all rights which it or others acting on its behalf may have under California Civil Code §1542, or wider any statute or common law or equitable principle of similar effect. Tenant -Seller: 15, CONTINGENCY. Transaction is subject to and contingent upon receipt by Buyer of the duly executed Quitclaim Deed from Tenant -Seller with respect to the Tenancy Interest and the Improvements. This transaction is further subject to and contingent upon approval and acceptance by Buyer. 16. AGREEMENT TO EXECUTE. Tenant -Seller and Buyer agree to execute and file any additional agreements, consents or other documents reasonably necessary to effect the full and complete settlement and purchase of the Improvements and the Tenancy Interest. 17. AUTHORIZATION TO EXECUTE. Tenant -Seller and Buyer represent and warrant that the persons executing this Agreement are duly authorized to do so and to act on behalf of Tenant -Seller and Buyer respectively. 18. COMPROMISE IN SETTLEMENT. This Agreement is a compromise in settlement of pending or potential litigation between Tenant -Seller and Buyer and shall never be treated as an admission by Buyer for any purpose of liability or as to value of any property or claim. 19. SURVIVAL OF RIGHTS AND OBLIGATIONS. Notwithstanding the releases contained herein and agreement concerning this transaction, all the rights and obligations created under and pursuant to this Agreement shall survive the execution of the Agreement, the releases contained herein and the Closing of this transaction. 20. WARRANTIES. REPRESENTATIONS AND COVENANTS OF TENANT - SELLER. Tenant -Seller hereby warrants, represents, and/or covenants to Buyer that: A. To the best of Tenant -Seller's knowledge, there are no actions, suits, material claims, legal proceedings, or any other proceedings affecting the Improvements, the Tenancy Interest or any portion thereof, at law or in equity, before any court or governmental agency. B. Until the Closing, Tenant -Seller shall maintain the Improvements and the Premises in good condition and state of repair and maintenance, and shall perform all of its obligations under any service contracts or other contracts affecting the Improvements and the Premises. C. Until the Closing, Tenant -Seller shall not do anything which would impair Tenant -Seller's title to the Premises, the Improvements or the Tenancy Interest. il D. All utilities including gas, electricity, water, sewage, and telephone, are available to the Premises, and to the best of Tenant -Seller's knowledge, all such items are in good working order. E. To the best of Tenant -Seller's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or violate any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument to which Tenant -Seller, the Premises, the Improvements or the Tenancy Interest may be subject. F. Until the Closing, Tenant -Seller shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Paragraph 20 not to be true as of Closing, immediately give written notice of such fact or condition to Buyer. 21. HAZARDOUS WASTE. Neither Tenant -Seller nor, to the best of Tenant -Seller's knowledge, any previous owner, tenant, occupant or user of the Property or the Premises, has 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 the Premises, or transported any Hazardous Materials to or from the Property or the Premises. Tenant -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 Premises. The term "Hazardous Materials" 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 §25115, §25117 or §25122.7, or listed pursuant to §25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under §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 §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 §25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 0£ 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. 51317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 or seq. (42 U.S.C. 56903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42. U.S.C. 56901, et seq. (42 U.S.C. 56901). 22. COMPLIANCE WITH ENVIRONMENTAL LAWS. To the best of Tenant - Seller's knowledge, the Premises and its use 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 5 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. 23. INDEMNITY. Tenant -Seller agrees to indemnify, defend and hold Buyer 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 Premises, 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 Premises. 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, 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 acts or omissions of Tenant -Seller herein. 24. ATTORNEYS' FEES. If legal action is required in order to construe or enforce any provision of this Agreement, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as its attorneys' fees and costs. 25. COUNTERPARTS. This Agreement may be executed in counterparts and when so executed by both parties, each counterpart will constitute an original document. 26. BINDING EFFECT. The terms, conditions, covenants and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereto. 27. ENTIRE AGREEMENT. This Agreement contains the entire agreement between both parties; neither party relies upon any warranty or representation not contained in this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year set forth hereinabove. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS. Mailing Address of Tenant -Seller 7825 Benares Street Downey, California 90241 Mailing Address of Buyer 20 Civic Center Plaza, M-30 Santa Ana, California 92701 Tenant -Seller Mike Otero dba Botanica Sol By: Its: Date: Buyer THE CITY OF SANTA ANA By:'e' David Cavazos City Manager Date: Attest: By. 1,V&-") c) ' HVI Maria D. Huizar City Clerk Date: I /./ __ aol _] Approved as to Form: By I M✓ '� Ls J n M. Funic Assistant City Attorney Date: It- (C -(G Rece� >deed for roval Fred Mousavipour Executive Director - Public Works Agency Date:_ 1��2�7 2p l6 EXI3IBIT A LEGAL DESCRIPTION OF PROPERTY Real property in the City of SANTA ANA, County of Orange, State of California, described as follows: PARCEL 1 AS SHOWN ON EXHIBIT A ATTACHED TO LOT LINE ADJUSTMENT NO. 2002-09 RECORDED JANUARY 30, 2003 AS INSTRUMENT NO. 03-113806 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 015-194-20 and 015-194-21 and 015-194-22 EXHIBIT B BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty. Description I I Sign, 8' x 4', dual sided, printed graphic d6cor on fiberboard, "Botanica Sol / 714.376.9472" with logos, wood backing, 2 poles, 4" x 74" x 4 ", plastic, including 2 fluorescent floodlights, electrical 2 2 Security doors, 38" x 82", tubular metal frame, metal mesh, lock hardware 3 100 Linear feet of neon tubing/fighting, roof -mounted, electrical " 4 2 Signs, 4'x 12", graphic decor on plastic, "714-376-9472", wall -mounted 5 2 Parking lot security lights, fluorescent, metal and plastic fixture, roof -mounted, electrical 6 2 Pendant lights, 18" high, fluorescent, plastic decorative shade 7 3 Window shades, 9'x 9', metal dowel, fabric curtains - 8 3 Ceiling fans, 54" diameter, wood blades, illumination 9 22 Linear feet of window shades, 8' high, metal slide track, mesh fabric shades, decorative 10 1,847 Square feet of laminate tile flooring throughout, including 2.5" high wood baseboard 11 296 Square feet of decorative fabric wall covering, 6" high tassel decor and 4 full length curtains, fabric 12 1 Tanldess water heater, Rheem, Model No.: RTG-64X9, natural gas, 153 gallon/hour recovery, 150,000 BT'U/Hr., electric Fair Market Forced Value in Liquidation Place Value $1,650 $0 960 0 2,800 175 80 0 1,000 0 480 0 400 75 900 45 1,200 150 8,800 0 575 0 675 25 BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 2 Fair Market Forced Item Value in Liquidation No. Qty, Description Place Value 13 1 Lot of bathroom upgrades, including plumbing, 4,150 0 consisting of'. 1 Sink counter, 30" x 19", laminate, 2 lower doors, single faucet 1 Toilet, Mansfield, porcelain I Shower fixture, Tx 6.5'x 3', plastic box and walls, sliding glass door, nuzzled shower head, plumbing 1 Ceiling ventilator, Nutone, 14" x 12" 1 Medicine cabinet, 36" x 30", 3 glass doors I Lot of ceramic walf tiles, 6" x 6" 2 ADA handrails, cbrome 14 1 Lot of plumbing/venting and electrical for stack 130 0 washer/dryer combo 15 1 Lot of kitchen upgrades, consisting of 4,400 0 13 Linear feet of sink/base cabinetry, 25" deep, L-shaped, laminate on wood, 6 drawers, 6 doors, 1 drop-in sink, 30" x 7" x 20", dual, single mixing faucet, plumbing I I Linear feet of wall cabinetry, 41" high, laminate on wood, 9 doors, including exhaust hood, Ikea, stainless steel, 30" wide, through -wall ventilation, illumination I Lot of decorative wall tile, 4" wide x.5" and 1" high, glass and stone I Pantry cabinet, 25" x 8'x 25", laminate on wood, 2 doors 16 1 Water connection for refrigerator 130 0 17 24 Square feet of horizontal mini blinds, plastic slats 70 0 18 1 Lot of interior wall paint covering, textured 2,400 0 19 2 Emergency exit sign cabinets, 12" x 10", plastic case, 230 20 roof -mounted 20 I Through -wall vent for portable air conditioning unit, 70 0 8" diameter 2 BOTANICA SOL IMPROVEMENTS PERTAINING TO THE REALTY EFFECTIVE DATE OF VALUE - JULY 25, 2016 Item No. Qty. Description 21 4 Pantry/closet doors, wood, consisting of; 2 18"x60" 2 18"x32" TOTAL IMPROVEMENTS PERTAINING TO THE REALTY *Note: The following Icasehold improvement were reportedly installed and/6r repaired by the lessee. They are included in the related real estate appraisal report; therefore, they are not included herein in order to avoid duplication of compensation. • Exterior/interior doors, including locks • Windows • General plumbing • General electrical • Stucco on exterior of building • Lawn/landscaping 3 Fair Market Forced Value in Liquidation Place Value 255 0 $31 355 $490