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HomeMy WebLinkAbout25F - COOP. AGMT WITH OCTA AND ACQUISITION OF RIGHT OF WAY REQUEST FOR COUNCIL ACTION ~ F CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 6, 2010 TITLE: APPROVED ? As Recommended SECOND AMENDMENT TO ? As Amended COOPERATIVE AGREEMENT WITH OCTA, ? Ordinanceon 1~dReading ? Ordinance on 2 Readin AND ACQUISITION OF RIGHT- OF- WAY ? Implementing Resolution FOR THE AT-GRADE RAIL SAFETY ? Set Public Hearing For ENHANCEMENT PROJECT (PROJECT 09-1745) CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager and Clerk of the Council to execute the attached Amendment No. 2 to Cooperative Agreement (C-8-0862), subject to nonsubstantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute the attached purchase agreement, subject to nonsubstantive changes approved by the City Manager and City Attorney, with Mark and Cindy Evans, for the purchase of the property located at 1101 E. Chestnut Avenue in the amount of $1,405,550. DISCUSSION On October 20, 2008, the City Council approved a cooperative agreement with Orange County Transportation Authority (OCTA) for the At-Grade Crossing Enhancement Program at ten crossings in the city. Amendment No.1 extended the term of the agreement through August 31, 2012. Amendment No. 2 increases the City's cost share by $400,205 due to an increase in the total project costs. The City provides the 12 percent match and is responsible for acquiring the right-of-way on OCTA's behalf. The purpose of this program is to enhance pedestrian, bicycle and driver safety for at-grade railroad crossings in the City. Improvements include medians, roadway signing and striping, pedestrian gates and other vehicular gate enhancements. Additionally, the City intends to implement a quiet zone for the crossings at Seventeenth Street, Santa Clara Avenue and Fairhaven Avenue, after the project is implemented. One of the railroad crossings to be enhanced is on Chestnut Avenue, west of Grand Avenue. To complete this work, OCTA determined that acquisition of the entire parcel at 1101 E. Chestnut Avenue will be required as shown in the exhibit 1. The compensation amount is the appraised value prepared by an appraiser licensed in the State of California. Once the property is acquired by the City, it will be conveyed to OCTA; they are responsible for the entire cost of this acquisition. 25F-1 OCTA At-Grade Railroad Cooperative Agreement Addendum 2 and Right-of-Way Acquisition at Chestnut Avenue July 6, 2010 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 This action increases the City's match by $400,205. Funds for the City's share of the costs are available in Select Street Construction, Measure M Street Construction program (accounting unit 03217660-66220). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II ~ Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/MS Exhibit 1: Project Location 2: Amendment No. 2 3: Purchase Agreement 25F-2 1 ~ ~ 1 1 ~ 1 ~ 1 1 1----------------- 1 1 1 1 1 1 1 o ` a 1 o ~ a o 1 ~ ~ Q 1 a ~ 1 ~ Z ; 1 o ~ 1 w ~ 1 's' ~ ~ c~ ~ ~ 1 O O 1 CHESTNUT AVE ~ CV ~ o I z ~ ~ Q \ (A EXHIBIT 1 ® ACQUISITION PROPERTIES SANTA ANA City Council Title SECOND AMENDMENT TO COOPERATIVE P W ~ Agenda Date OFRRIGHENTOFITW O FOR THED AT~GRADE JULY 6, 2010 RAIL SAFETY ENHANCEMENT PROJECT "'e"` "~"5 (PROJECT 09-1745) 25F-3 i AMENDMENT NO. 2 TO 2 AGREEMENT N0. C-8-0862 3 BETWEEN a ORANGE COUNTY TRANSPORTATION AUTHORITY ~ AND ~ CITY OF SANTA ANA' ~ FOR s RAIL-HIGHWAY GRADE CROSSING SAFETY ENHANCEMENTS 9 AND io ~ SAFETY MEASURES RELATED TO QUIET ZON E IMPLEMENTATION FOR CITIES tj THIS AMENDMENT NO. 2 is effective this day of 20'!0, b and y iz I between the Orange County Transportation Authority ("AUTHORITY"), and the City of Santa Ana 13 (.CITY"). la WITNESSETH: WHEREAS, by Agreement No. C-8-0862 dated October 20, 2008, as last changed by i6 , Amendment No. 1 dated February 16, 2010, AUTHORITY and CITY entered into a cooperative i agreement for rail highway grade crossing safety enhancements and safety measures related to quiet zone implementations; and 19 WHEREAS, AUTHORITY and CITY agree to increase the 12% cost share to include the Zo construction cost increase associated with signal material and railroad signal installation labor and =1 construction and project management cost; and n WHEREAS, the AUTHORITY's Board of Directors approved this Amendment on z3 -a NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY that zs Agreement No. C-8-0862 is hereby amended in the following particulars only: 2G ~ ER:CF L:ICAMMtCLERICAL1wORDPROCIAGREEb4MENDW M28~882. DOC Page 1 of 3 ~ Exhibit 2 25F-4 AMENDMENT NO. 2 TO AGREEMENT NO. C-&0862 ~ Amend ARTICLE 4. RESPONSIBILITIES OF CITY paragraph F, Page 6 of 14, to delete 2 in its entirety and in lieu thereof insert: "F. CITY is responsible for Right-of-Way acquisition, including Temporary Construction ~ Easements, any and all environmental clearances, and securing any and all necessary environmental s or other approvals far the PROJECT. For the Chestnut property only, CITY shah be responsible for ~ Right-of-Way acquisition and once ac wired the ro e q ~ P P rty will be conveyed to AUTHORITY. ~ Amend ARTICLE 4. RESPONSIBILITIES OF CITY , paragraph K and N, Page 7 of 14, to s delete in its entirety and in lieu thereof insert: y "K. CITY wiif pay to AUTHORITY, within 30 days of submittal of invoice (s) from AUTHORITY io and subject to the C1TY's normal accounting procedures, the requested portion of the C1TY's 12 ii percent local matching funds for the PROJECT, with the exception of the local matching funds for the i2 cost of the Santa Clara and Fairhaven crossings, which are fully funded under the Santa Ana Second 1~ Main Track Project is "N. The estimated expenditure schedule for CITY's local matching funds is as follows: 14 FISCAL YEAR CITY'S SHARE (12 percent} OF ESTIMATED i~ PROJECT COST 2008/2009 1 330 098 t7 2009/2010 570 042 zs iv 201012011 400 205 Zo 2011 /2012 ,I TOTALS 2 300 345 " Amend Exhibit "A". OCTA GRADE CROSSING SAFETY ENHANCEMENT PROGRAM Y3 SCOPE OF WORK, Fairhaven Avenue subsection, delete the phrase "Temporary Closed" and replace with the phrase "Permanent Closures Add OCTA GRADE CROSSING SAFETY ENHANCEMENT PROGRAM COST ESTIMATE CITY OF SANTA ANA, Exhibit B, Amendment No. 2, attached hereto and made part hereof. cR:CF CaDOCUMENl'S AND SETTINGSIDNEVILS\DESKTOPISANTA ANA OCX_COOPERATtVEAGREEMENT AM2808G2•RE'JISEDDRAFT.DOC Page 2 of 3 Exhibit 2 25F-5 AMENDMENT NO. 2 TO AGREEMENT NO. C-8-0862 t ( The balance of said Agreement remains unchanged. 3 ~ ( IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Agreement No. C 8 0862 to be executed on the effective date above written. ~ CITY OF SANTA ANA ORANGE COUNTY TRANSPORTATION AUTHORITY 5 4 By. By ~ David N. Ream Will Kempton City Manager Chief Executive Officer s s ATTEST: APPROVED AS TO FORM: ~o ey: By ~ , Maria D. Huizar Kennard R. Smart, Jr Clerk of the Council General Counsel I2 APPROVED AS TO FORM: APPROVAL RECOMMENDED: t3 By: By. seph W. Fletcher Darrel! Johnson is City Attorney Deputy, Chief Executive Officer t~ APPROVAL RECOMMENDED: i ]7 By: James G. Ross Executive Director, Public Works (9 20 i 21 22 23 I ?4 i~ ~I 25 ~6 ER:Cf ~ ~ L'.\CAMM\CLERICALIWORDPROCWGREEIAMcNOWAA28o882.DpC I Page 3 of 3 5 Exhibit 2 25F-6 AMENDMENT NO. 2 TO AGREEMENT NO. C-8-0862 EXHIBfT "B" OCTA GRADE CROSSING SAFETY ENHANCEMENT PROGRAM REVISED COST ESTIMATE CITY OF SANTA ANA Original Revised Cost hems Origina! Estimate at Revised City City Share Coop Cost Coop City Com letlon Share 12% Share (12%) p ~ } Difference (EAC) SCRRA Agency Costs Design: Survey, PM, CM, $4,816,151 $577,938 $4,G87,157 $490,459 -$8,,479 Flagging, Permitting. Civi{ Safety Enhancements $4,355;373 S522,645 $2,171,595 $260,591 -$282.053 RR Signal Improvements $4,147,800 $497,736 $7,731,607 $927;793 $430.057 Utility Costs $33,000 $3,960 $3,278 $393 -$3,567 ROW Costs $1,122,400 $134,688 $3,246,077 $389,529 $254,841 Project Contingency & lnftation 51,359,775 $163,173 $1,929,826 8231,579 S68,406 Grand Totai $15,834,499 $1,900,140 $19,169,540 $2,300,345 $400,205 Notes Ali costs associated with the Fairhaven and Santa Clara Ave crossings are not included in the new EAC, dae to these costs oeing paid under the Santa Ana Second Main Track Project. RON! ccsts assecated with the full-property acquisition at 1101 E Chestnut Ave are not included in the EAC. since vCTA will take ina~ possession of this property, last Revision OS/20J10 Exhibit 2 25F-7 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this _ day of 2010, 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 Mark and Cindy S. Evans (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" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1101 E. Chestnut Avenue, Santa Ana, CA) 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 ONE MILLION FOUR HUNDRED FIVE THOUSAND FIVE HUNDRED FIFTY AND NO/100 Dollars ($1,405,550.00) 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 1 Exhibit 3 25F-8 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. 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 "B" 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 "B" 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 ONE MILLION FOUR HUNDRED FIVE THOUSAND FIVE HUNDRED FIFTY AND NO/100 Dollars ($1,405,550.00). 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; 2 Exhibit 3 25F-9 (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. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct statement of rentals (Seller Estoppel) on a form furnished to Seller by Buyer and deliver same to Buyer within fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30-day month/360- day year consistent with that statement, subject to approval of Buyer. Seller hereby agrees not to rent any units on the premises which are now vacant, or which may be vacated by present occupants prior to close of escrow. Seller agrees that any and all Tenant Security Deposits pertaining to the subject property collected by or in the possession of Seller prior to the close of escrow shall be transferred to and become the property of Buyer during escrow. Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold Buyer harmless from all liability from any such leases or agreements. Seller also warrants that there are no oral or written leases on all or any portion of the subject property exceeding a period of one month. 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. City had delivered to Seller an offer to purchase said real property under threat of eminent domain pursuant to Government Code § 7267.2. Seller now wishes to avoid eminent domain proceedings and sell said real property to the City, and City wishes to buy said real property from Seller, pursuant to the terms and conditions of this Agreement in lieu of condemnation. 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: Mark and Cindy S. Evans 435 Hilledge Dr Laguna Beach, CA 9265 3 Exhibit 3 25F-10 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. 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. 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 seg. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seg. (42 U.S.C. S9601). 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. 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 4 Exhibit 3 25F-11 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. 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. 21. 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. Governing 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. Authority 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. 5 Exhibit 3 25F-12 30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 31. Other Terms. This Agreement is subject to the Orange County Transportation Authority (OCTA) providing the City one-hundred percent of the funds to close this transaction. The parties have executed this Agreement as of the date written below. SELLER: Mark and Cindy S. Evans Mark Evans Dated Cindy S. Evans Dated CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Managing Senior Assistant City Attorney 6 Exhibit 3 25F-13 EXHIBIT "A" LEGAL DESCRIPTION THAT PORTION OF THE LAND ALLOTTED TO STAFFORD AND TUSTIN IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED IN BOOK "B" OF JUDGMENTS OF THE 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF CHESTNUT AVENUE WITH THE WESTERLY LINE OF THE RIGHT OF WAY TO ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY; THENCE WEST 123.90 FEET TO THE EAST LINE OF SANTA FE STREET; THENCE NORTH 462.40 FEET TO THE SOUTHWESTERLY LINE OF SAID RIGHT OF WAY; THENCE SOUTHEASTERLY ALONG SAID RIGHT OF WAY TO THE POINT OF BEGINNING. APN:O11-140-11 7 Exhibit 3 25F-14 EXHIBIT "B" 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. 8 Exhibit 3 25F-15