HomeMy WebLinkAbout25K - BRISTOL STREET CORRIDORREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 15, 2010
TITLE:
SETTLEMENT AGREEMENTS FOR
BRISTOL STREET CORRIDOR (PROJECT
NO. 081700)
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CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1s' 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:
• Winchell's Donut Houses Operating Company, L.P. for the purchase of 624 N. Bristol Street
in the amount of $915,000.
• Richard and Susan Riemer for the purchase of 602 N. Bristol Street in the amount of
$352,720.
• Santa Ana Florist (Charles and Vicki Kruger) for acquisition settlement for the business at
315 N. Bristol in the amount of $280,000.
• Richard R. Garibay for the purchase of 828 N. Bristol Street in the amount of $3,190,000.
• Garibay Tax Service for acquisition settlement for business at 828 N. Bristol in the amount of
$75,000.
• Clinica Medica San Miguel for acquisition settlement for business at 1302 W. Santa Ana
Blvd. in the amount of $300,000.
• Joaquin Torres for purchase of 622 N. Bristol in the amount of $275,000.
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,
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Settlement Agreements For
Bristol Street Corridor
November 15, 2010
Page 2
is under construction and is expected to be completed by December 2010. 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 Warner Avenue.
To accommodate the widening for the second phase, acquisition of the entire properties located at
602, 622, 624 & 828 N Bristol is required (Exhibit 1). In addition, settlement agreements have
been reached with the tenants of properties at 315 N. Bristol and 1302 W Santa Ana Blvd. The
compensation amounts are the appraised values 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:
Raul Gddinez II Francisco Gutierrez rg
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
RG /SA
Exhibit 1: Location map
Exhibit 2: Agreements
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PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF 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 "City "), and
WINCHELL'S DONUT HOUSES OPERATING COMPANY, L. P. (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 624 N. Bristol Street, Santa Ana, CA)
Seller and City acknowledge and agree that the sale of said real property from Seller to City is in
lieu of condemnation. 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. Intentionally O"tted.
3. Title Insurance. It shall be a condition to the obligation of City to purchase said real
property that Seller 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. Seller agrees to delivery to City a policy of title insurance to be issued by the above
mentioned title company, with City therein named as the insured, in the amount of NINE
Revised.9.13.2010wkj - I -
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HUNDRED FIFTEEN THOUSAND AND NO /100 Dollars ($915,000) insuring the title of 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, except as set forth in Paragraph 15 below and excepting such specific ones as
City may hereinafter expressly agree to take subject to.
4. Escrow. Seller and City agree to open an escrow for the purchase and sale of said real
property in accordance with the terms and conditions of this Agreement (the "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 signed
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 120 days of the City's execution of this
Agreement. Seller and City agree to execute such escrow instructions as the Escrow Agent shall
reasonably require in connection with the opening and administration of the Escrow, provided
that all such escrow instructions shall be consistent with the terms of this Agreement and any
modifications to this Agreement mutually agreed upon by Seller and City. Seller agrees to
execute and deliver to the Escrow Agent a Certificate of Non - Foreign Status sufficient to meet
the requirements of FIRPTA.
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
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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, as improved, goodwill (if
any), and severance damages, the total sum of NINE HUNDRED FIFTEEN THOUSAND AND
NO /100 Dollars ($915,000). City agrees to deposit said purchase price in the Escrow with the
Escrow Agent within THIRTY (30) days from and after the date on which the City has signed
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 Grant Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Grant Deed conveying said
real property to City is recorded, quiet and peaceful possession of said real property, subject to
the interests described in Paragraph 15, below.
8. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and
correct statement of all leases and agreements for occupancy of said real property (Seller
Estoppel) on a form furnished to Seller by City and deliver same to City within fifteen (15) days
after such form is provided with copies of any written leases or rental agreements attached. All
rents for any such leases or agreements for occupancy of said real property 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 City. 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 said real property collected by or
in the possession of Seiler prior to the close of Escrow shall be transferred to and become the
property of City at the close of 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). Seller also
warrants that there are no oral leases on all or any portion of said real property which grant the
right to occupy any portion of said real property for a term exceeding one month.
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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. Assigns, Successors in Interest. This Agreement, and all the terms, covenants and
conditions hereof, shall apply to and bind the successors and assigns of Seller and City.
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 during the 30 -day period
established pursuant to Paragraph 6, above, for the purpose of making necessary inspections,
subject to the rights of tenants in possession. City hereby expressly acknowledges and agrees that
it shall acquire the Property "AS IS" and "WHERE IS," and "WITH ALL FAULTS ". City shall
acquire the Property after such inspection, analysis, examination and investigation as it cares to
make and expressly without Seller's covenant, warranty or representation, whether express or
implied, statutory or otherwise, as to physical condition, title, leases, rents, income, expenses,
operation, environmental conditions, zoning or other regulation, compliance with law, suitability
for particular purposes, or any other matter whatsoever. City expressly acknowledges that it
shall have been afforded ample opportunity to inspect, analyze and investigate all aspects of the
Property and conditions relevant thereto and the business conducted thereon, and City shall rely
on City's own investigation and inspection, and all matters relating thereto and agrees that Seller
has and shall have no liability or obligation whatsoever. City hereby expressly acknowledges
that, notwithstanding anything to the contrary contained in this Agreement or elsewhere, Seller
has not made and shall not be deemed to have made any representations or warranties
whatsoever regarding the Property or otherwise, and there shall be no obligations of Seller that
shall survive the Closing. City hereby assumes all risks in connection with the Property and the
matters referred to in this Section.
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 Seller's
fixtures, 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, Santa Ana, CA 92702. The mailing address of the Seller is Winchell's Donut
Houses Operating Co., L.P., 5220 Pacific Concourse Drive, Suite 130, Los Angeles, CA
90045. Either party may change its notice address by delivery of a notice to the other, specifying
the new address. Notices hereunder shall be effective upon actual delivery (or refusal of
delivery) to the other party.
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15. Exceutions. City acknowledges receipt and terms of the Lease Agreement between
Seller and Yum Yum Donut Shops, Inc., dated as of October 20, 2004.
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 said real property used, generated, released, discharged,
stored, or disposed of any hazardous waste, toxic substances, or related materials ( "Hazardous
Materials ") on, under, in, or about said real property, or transported any Hazardous Materials to
or from said real property, other than materials used in connection with the operation of said real
property, in accordance with applicable laws. 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, said real property, other than
materials used in connection with the operation of said real property, in accordance with
applicable laws. 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. S 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. S6901 et M. (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. 59601 et seq. (42 U.S.C. 59601).
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18. Compliance With Environmental Laws. To the best of Seller's knowledge, said real
property complies in all material respects 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 relating to Hazardous Material of the City, 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, insofar as any of the same are applicable to said real property.
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, said real property in violation of applicable laws as a result of acts or
omissions of Seller while it was in possession of said real property, or (ii) the violation, or
alleged violation, by Seller, while it was in possession of said real property, 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, said real 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 the Escrow shall close. Seller shall not
be responsible for acts or omissions to act post close of the Escrow.
20. Contineency. 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 constitute 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.
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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.
30. Assignments. Neither Seller nor City shall have the right to assign its rights under this
Agreement without the express prior written consent of the other.
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31. Disputes. In the event of any dispute between Seller and City with respect to the
interpretation or enforcement of this Agreement, the prevailing party in such dispute shall be
entitled to recover from the other party, in addition to any other relief or remedy, its costs of suit
and reasonable attorneys' fees.
32. Incornoration 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:
WINCHELL'S DONUT HOUSES OPERATING COMPANY, L.P.
By: C— — Date: ��flT �� t lac <',
Print Name: Mz- - v
Title:
CITY /CITY:
CITY OF SANTA ANA
By:
David N. Ream
City Manager
ATTEST:
By:
Maria D. Huizar
Clerk of the Council
Dated:
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Jo Sandoval
anaging Senior Assist nt City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 AND 3 OF TRACT 662, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 24 PAGE 17,
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THE SOUTH 14 FEET OF SAID LOT 2
APN: 405 - 073 -14
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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, except to the extent such costs, damages, judgments, and expenses are
caused by your negligence or willful misconduct, 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.
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PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
(Residential)
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 TF Investments, LLC, a California limited liability company (hereinafter called "Seller "),
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 602 N. Bristol /1301 W. 6th, 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, through an escrow to be opened at First American Title Insurance Company, located at
2 First American Way, Santa Ana, California, subject to the provisions of paragraph 2. .
2. Cancellation of Escrow. Escrow shall be cancelled and this Agreement shall be null
and void if the City has not approved this Agreement and notified Seller of such approval by 5
pm on November 19, 2010.
3. Title Insurance. Seller makes no representations or warranties as to the state of title
and Buyer is to obtain during Escrow, at its expense, such title insurance as it deems necessary
or desirable. Seller shall have no responsibility to provide Buyer with any title documents,
reports or policies of title insurance.
4. Escrow. City agrees to open an escrow at the office 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 prior to December 31, 2010 — time being of the essence.
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
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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.
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 prorated as of the Close of Escrow. 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; and Other Consideration. City agrees to pay to Seller,
and Seller agrees to accept from City, as and for the full purchase price for said real property,
the total sum of THREE HUNDRED FIFTY -TWO THOUSAND SEVEN HUNDRED AND
TWENTY DOLLARS ($352,720). 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.
In addition:
(a) The City shall deliver to Seller the water heater which was recently installed in 1301 W.
6 1 Street or, should such water heater be unavailable, then the City shall pay to Seller $500 to
reimburse Seller for the costs associated with such water heater (see paragraph 17);
(b) The City shall, prior to the Close of Escrow, deliver to Seller a letter on the City's
letterhead acknowledging that this sale was consummated under the threat that the City would
acquire the subject property by eminent domain in a form reasonably acceptable to Seller.
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 subject to the
rights of the existing tenants.
8. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and
correct statement of rentals (Estoppel Certificate) 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 thereto. 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. 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 remain the property of Seller.
2
25K -16
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). Seller also
warrants that there are no oral or written leases on all or any portion of 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. (Intentionally omitted).
13. Tenants: Neither the City nor its agents shall negotiate with and /or contact the tenants
in the Property until Escrow closes.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, Attn:
Kent Jorgensen 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:
TF Investments, LLC
C/O Richard L. Riemer
P.O. Box 6467
Santa Ana, CA 92706
15. Title. City agrees to accept title to said real property in its current condition per the
preliminary title report dated October 7, 2010. In addition, all monetary liens being recorded
prior to the close of escrow shall be cleared.
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. Water Heater. Notwithstanding the closing of the Escrow as it relates to the real
property, Escrow shall continue to hold $500 of the City's money until the City makes the water
heater described in paragraph 6 above available to the Seller or until May 1, 2011 whichever
first occurs. If the City has not made such water heater available to Seller by May 1, 2011 for
whatever reason (eg. the tenant has not vacated the unit, the new water heater has
`disappeared' or whatever) then, and in that event, Escrow Agent shall pay the $500 to Seller.
18. "As -Is" Sale. The City acknowledges and agrees that the sale of the Property as
provided for in this Agreement is being made on an "AS IS, WHERE IS" condition and basis
"WITH ALL FAULTS ", with no right of setoff or reduction in the Purchase Price. In furtherance
thereof, the City hereby acknowledges and agrees as follows:
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25K -17
(a) That Seller has not made, does not make and specifically disclaims any
representations, warranties, promises, covenants, agreements or guaranties of any kind or
character whatsoever, whether express or implied, oral or written, past, present or future, of, as
to, concerning or with respect to (a) the nature, quality or condition of the Property, including,
without limitation, the water, soil and geology, (b) the income to be derived from the Property,
(c) the suitability of the Property for any and all activities and uses which Purchaser may
conduct thereon, (d) the compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body, including, without
limitation, environmental laws and the Americans with Disabilities Act and any rules and
regulations promulgated thereunder or in connection therewith, (e) the habitability,
merchantability or fitness for a particular purpose of the Property, or (f) any other matter with
respect to the Property.
(b) That the City has conducted such due diligence as it considered
necessary or appropriate.
(c) That the City, for itself and its successors and assigns, hereby releases
Seller and its members from, and waives, any and all problems, conditions, losses, costs,
damages, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever
(collectively, "Liabilities ") against Seller for or attributable to or in connection with the Property,
whether arising or accruing before, on or after the Closing and whether attributable to events or
circumstances which may occur before, on or after the Closing, including, without limitation, any
implied or statutory warranties or guaranties of fitness, merchantability or any other statutory or
implied warranty or guaranty of any kind or nature regarding or relating to any portion of the
Property. In addition to, and not by way of limitation of, the foregoing, the City, for itself and its
successors and assigns, hereby releases Seller from, and waives, any and all Liabilities against
Seller for or attributable to any affirmative obligation that Seller may have under the laws of the
State of California to make any disclosures to the City regarding the condition of the Property or
whether any portion of the Property lies within a natural hazard area. The City further
acknowledges and represents that it will make its own independent investigations, or shall have
the opportunity to do so, as it deems necessary or appropriate concerning the Property,
including without limitation investigations to determine whether any portion of the Property is
located in any natural hazard areas. In view of the foregoing, the City hereby knowingly,
voluntarily, and intentionally waives its right to disclosure of natural hazards found in the Natural
Hazard Disclosure Act, California Government Code §§ 8589.3, 8589.4, and 51183.5, and
California Public Resources Code §§ 2621.9, 2694, and 4136, and any similar or successor
statutes or laws. The City acknowledges that Seller is not required to make any of the
disclosures dealing with lead based paint or mandated by Civil Code § 1102 et seq.
(d) By closing and acceptance of the deed from Seller, the City agrees that it
shall be deemed to: (i) assume and take responsibility and liability for any and all Liabilities
attributable to the Property arising or accruing after the Close of Escrow and attributable to
events or circumstances which occurred after the Close of Escrow (collectively, the "Assumed
Liabilities "), and (ii) indemnify, defend and hold harmless Seller and its members from all
Assumed Liabilities (including reasonable attorneys' fees, expenses and disbursements).
(e) The City expressly understands and acknowledges that it is possible that
unknown Liabilities may exist with respect to the Property and that the City explicitly took that
possibility into account in determining and agreeing to the Purchase Price, and that a portion of
such consideration, having been bargained for between parties with the knowledge of the
possibility of such unknown Liabilities has been given in exchange for a full accord and
satisfaction and discharge of all such Liabilities.
4
(f) The provisions of this paragraph 18 shall survive Close of Escrow.
W 1215 a
19. Releases. WITH RESPECT TO ANY RELEASE SET FORTH IN THIS AGREEMENT
RELATING TO UNKNOWN AND UNSUSPECTED CLAIMS, THE CITY HEREBY
ACKNOWLEDGES THAT SUCH WAIVER AND RELEASE IS MADE WITH THE ADVICE OF
COUNSEL AND WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE
CONSEQUENCES AND EFFECTS OF SUCH RELEASE, AND THAT SUCH RELEASE IS
MADE WITH THE FULL KNOWLEDGE, UNDERSTANDING AND AGREEMENT THAT
CALIFORNIA CIVIL CODE §1542 PROVIDES AS FOLLOWS, AND THAT THE PROTECTION
AFFORDED BY SAID CODE SECTION IS HEREBY WAIVED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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.
4",
25K -19
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.
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.
The parties have executed this Agreement as of the date written below.
SELLER: BUYER:
TF INVESTMENTS, LLC CITY OF SANTA ANA
By: Date: 2010 By: Date: 2010
Richard L. Riemer David N. Ream
City Manager
ATTEST AS TO FORM:
Joseph W. Fletcher
City Attorney
ATTEST:
By: Date: 2010
Jose Sandoval
Managing Senior Assistant City Attorney
By: Date: 2010
Maria D. Huizar
Clerk of the Council
M
25K -20
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
Lot 11, Tract No. 1152, per map recorded in Book 38, Page 9 of Miscellaneous
Maps, in the office of the County Recorder, County of Orange, California.
25K -21
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 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 Buyer agrees 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.
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.
25K -22
When recorded, please mail this
instrument and tax statements to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M -36
Santa Ana, California 92701
Free recording requested by
THE CITY OF SANTA ANA PER
USE _
GOVERNMENT CODE SECTION 6103.
SPACE ABOVE THIS LINE FOR RECORDER'S
CANCEL
APPROVED AS TO
APPROVED BY
DESCRIPTION
DESCRIPTION
A,P.
R/W MAP
PROJECT
TAXES
FORM BY ATTY.
DIRECTOR
WRITTEN BY
CIIECKED -O.K.
NUMBER
NUMBER
NUMBER
X
405 - 073 -18
602 N. Bristol, Santa Ana
DEED NUMBER
(Address /Approximte Location)
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, TF Investments, LLC,
a California limited liability company does hereby Grant to THE CITY OF SANTA ANA, a charter city
and municipal corporation duly organized under the Constitution and laws of the State of California,
the real property in the City of Santa Ana, County of Orange, State of California, described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF;
Dated
STATE OF
CALIFORNIA )ss.
COUNTY OF 1
0, before me,
TF Investments, LLC, a California limited liability
company
By: Richard L. Riemer
personally appeared
, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public place notary seal above
MAIL TAX STATEMENTS AS DIRECTED ABOVE
25K -23
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
Lot 11, Tract No. 1152, per map recorded in Book 38, Page 9 of Miscellaneous
Maps, in the office of the County Recorder, County of Orange, California.
25K -24
Oct 25 10 10:00a p.2
10/22/2010 FRI 17:48 FAX 2132369724 Peterson Law Group PC 0002/012
ALL INCLUSIVE SETTLEMVff AGREEMENT
This Agreement ("Agreement'") is made by and between the City of Santa Ana, a charter
city and municipal corporation duly organized and exiting under the Constitution and laws of the
State of California ( "City') and Charles Krueger and Vicki Krueger dba Santa Ana Florist
( "Tenant"). The City and Tenant are hereinafter sometimes referred to collectively as the
"Parties."
RECITALS
A. Tenant operates a business, commonly known as Santa Ana Florist at 315 N. Bristol
Street, Santa Ana, CA (the "Property").
B. The Agency has acquired the Property for the Bristol Street Widening Project. Tenant
currently occupies the Property under a Iease which became effective Jane 1, 2001
and extends through May 31, 2011, and provides Tenant with one 5 year option, to
renew under the same terms (the "Lease").
C. The Parties desire to resolve all issues relating to the Agency'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
I. Consideration
(a) The Agency shall pay to Tenant the sum of S280,000.00 (Two Hundred Eighty
Thousand 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 foil execution of this Agreement, the
Agency will begin processing an initial payment, payable to the Peterson Law
Group Client Trust Account, in the amount of $180,000.00, and pay same within
thirty (30) days of execution of this Agreement. The Agency will make the final
Payment to the Peterson Law Group Client Trust Account in the amount of
$100,000:00, when Tenant vacates the Property, signs a Certificate of
Abandonment, provides all keys to the Property to the Agency or to the Ageaey'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 aU obligations of the Agency to Tenant,
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Oct 25 10 10:00a
IU /zz /LUIU PKA I7:40 rwa ziJzjuvYza rererson Lae croup m
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 invemoty),
furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or
damages of any nature.
(c) Tenant agrees to vacate the Property by no later than December 31, 2010 (Vacate
Date).
(d) Tenant hereby agrees that Agency 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 $122,347.
M Payment will be made for Leasehold Bonus Value and Loss of Business Goodwill
in the amount of $157,653.
(g) City has delivered to Owner an offer to purchase the Property under threat of
eminent domain pursuant to Government Code Section 72672. Tenant and City
now wish to enter into this Agreement in lieu of eminent domain proceedings.
All payments hereunder and this transaction generally are made under said threat
of eminent domain.
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 nrutual 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,
attoney'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 Agency, (2) Tenant's leasehold interest, if any,
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25K -26
p.3
1¢JUV.11 U1Z
Oct 25 10 10:01a P,q
in the Property (or any portion thereof] or (3) any other right or interest Tenant
may have, assert, or claim by reason of Agency'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 Agency. -
(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.
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 drat 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 shalt 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 nay
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
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25K -27
Oct 25 10 10:01a
p.5
released claims, ad that Tetsant" 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 Agency, 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.
(p) 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
3. Thifd 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. Indemnitv
Each party shalt 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.
4 of?
25K -28
Oct 25 10 10:01a
8. Waiver and/or Modification
p.6
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.
9. Headingi
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.
10. Governinp- 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.
11. 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.
12. 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.
13. Advice 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.
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25K -29
Oct 25 10 10:01a
14. Authq 1 t4lrxecntt This
„ �reement
p.7
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.
15. Consttucti on
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 teams and provisions, the
same shall not be construed against any party.
16. 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.
17. 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.
18. 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
ply:
To Agency: Soun Amirani
Deputy City Engineer
City of Santa Ana Public Works Agency
20 Civic Center Plaza, M -36
Santa Ana, California 92701
To Tenant: Charles and Vicki Krueger
Santa Ana. Florist
CIO Peterson Law Group
707 Wilshire Blvd. #5270
Los Angeles, CA 90017
6 of 7
25K -30 __
Oct 25 10 10:02a
19. Jurisdiction and Vepus
p.8
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 Agency 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.
IN WITNESS WHEREOF, the parties to this Agreement have executod this Agreement as of the
date first written above.
les Kruege. Title Tax Identification No. Date
UA4
37-3q 5 263 10 -c2YJ-O
Vicki Krueger Title Tax Identification No. Date
APPROVED AS TO FORM:
BY:
John Peterson, Tenant
CITY OF SANTA ANA
Counsel
Dated
BY: Dated
David N. Reath
City Manager
ATTEST:
Dated
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By: Dated
Jose Sandoval
Managing Senior Assistant City Attorney
7of7
25K -31
19. 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 Agency 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.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the
date first written above.
TENANT: Santa Ana Florist
Charles Krueger Title
Vicki Krueger
APPR ED,)
am
Title
Tax Identification No. Date
Tax Identification No. Date
Dated
CITY OF SANTA ANA
BY: Dated
David N. Ream
City Manager
ATTEST:
Dated
Maria D. Iluizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY:_ Dated
Jose Sandoval
Managing Senior Assistant City Attorney
7of7
25K -32
Oct 25 10 10:02a
t� W -9 Request for Taxpayer
0 Pa °C10bef 200s tdentiflcation Number and Certification
oaparaneM or e. 7'w.sury
mail Reww" aw ce
CV
C
y O
a0
`e
rn
shown on your Income tax
I d
Business name, It dfbrwd from
P.9
titre form to the
requeder. Do nat
sold io titre IRS.
Check app q-.Ms box: Iff inc9v **VSo* W*W w ❑ Corporation ❑ partneM*
❑ Limited Iieb*ty compery. Hater the tax clafaifieation 113-dereWrded wilily. C- mporation, p=partren:110) ► ....... ❑ ❑ odw ge htrctla f p�
City, state, and ap code
List accow.t
and apt w elite no.)
(optiof"
Requssw's name and address (OptlOfnsl)
Enter your TIN in the appropriate box. The TiN provided must match the name gNen on Line 1 to avoid
backup withholding. For Individuals, this is your social security number (SSN), However, for a resident
alien, sole proprietor, or disregarded etity, no the Part 1 Instructions an page 3. For other ettiftea, it Is
your employer identification number (Ettii. If you do not have a number, sea How so get a TW an page 3.
8oeh1 securbty number
or
Under penalties of perjury. I curtly that:
1. The number shown on this form is my correct taxpayer identification number (or 1 am waiting for a number to be Issued to me), and
2, 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or 041 have not been notified by the Internal
Revenue Service ORS) that i am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person (defined below).
Certification iestructlons. You must cross out Item 2 above if you have been notified by the MS that you are ormwily, subject to backup
For
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions. Item 2 does not apply.
gage interest paid, acquisition or abandonment of secured property, cancellation of debt, con ribytiona to an Individual retirerrie't
arrangement PRA). and generally, payments other than interest and dividends, you are riot required to sign the Certification. but you., t
Provide your correct TIN. See the instructior:kj on page 4. A
�n Signature of
Here U.& person ► —/ —Z� — _ Dale ► Je
General lnstruc ons v �
Definition of a U,S, person. For federal tax purposes, you are
Section references are to the Internal Revenue Code unless
considered a U.S. person it you are_
otherwise noted.
• An individual who is a U.S. citizen or U.S. resident alien.
PurpOse of Form
e A partnership, corporation, company, or association created or
A Person who Is required to file an information return with the
organized in the United States or under the laws of the United
Stagy.
IRS must obtain your correct taxpayer identification number (n"
to report, for example, income paid to you, real estate
a An estate (other than a foreign estate), or
transactions, mortgage irrtarest you paid, acquisftion or
abandorxnent of secured Property, cancellation of debt,
• A dome stic trust (aS deified in Regulations section
301 dourest
or
contributions you made to an IRA.
Special rules for partnerships. Partnerships that conduct a
Use Form W -9 only if you are a U.S. Person (including a
trade or business in the United States are generally required to
resident alien), to provide your correct TiN to the person
Pay a withholding tax on any foreign partners' share of income
requesting it (the requester) and, when applicable, to:
from such business. Further, in certain cases where a Form W-9
I. Certify that the TIN you are giving is correct (or you are
waiting for a number to be issued),
has not been received, a partnership is required to presume that
a partner is a foreign parson, and pay the wffhhofding tax,
Therefore; if you are a U.S. person that is a partner in a
2. Certify that you are not subject to backup withholding, or
partnership conducting a trade or business In the United States,
3. Claim exemption from backup withholdi ng It are a U.S.
exempt payee. if applicable, you are also certifying
hr9 that
provide Form W -9 to the partnership to establish your U.S.
tatus and avoid withholding on Your share of partnership
as a
U.S. person, your allocable share of an y partnership income from
income.
a U.S. trade or business is not subject to the withholding tax on
foreign partners' share of effectively connected income.
The pew Who gives Form W -9 to the partnership for
Purposes of establishing its U.S. status and avoiding withholding
Nobs, if a requester gives You a form other than Form W -9 to
request your TIN, you must use the requester's form If it is
on its allocable share of net income from the partnership
conducting a trade or business In the United States is in the
substantially sirnilar to this Form W -9.
following cases:
0 The U.S. owner of a disregarded entity and not the entity,
Gat. No.
10231x Form -9 (Acv. 1041007)
25K -33
Oct 25 10 10:02a
P.10
Form w -9 (Raw. io -xoon ieya 2
e The U.S. grantor or other owner of a grantor trust and not the
trust, and
e The U.S. trust (other than a gm tbor truss) and not the
beneficiaries of the trust.
Foreign person. If you are a foreign person. do not use Form
W -9. Instead, use the appropriate Form W-8 (see Publication
515, Withholding of Tax on Nonresident Alkens and Foreign
Entities).
Nonreslderit alien who becomes a resident alien. Generally,
only a nonresident alien Individual may use the terms of a tax
treaty to reduce or eliminate U.S, tax on certain types of income.
However, most tax treaties contain a provision known as a
"saving clause.' Exceptions specified in the saving clause may
permit an exemption from tax to continue for certain types of
Income even after the payee has otherwise become a U.S.
resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception
contained in the saving clause of a tax treaty to claim an
exemption from U.S. tax on certain types of income, you moat
attach a statement to Form W -9 that specifies the following five
items:
1. The treaty country. Generally, this must be the same treaty
under which you claimed exemption from lax as a nonresident
alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that
contains the saving clause and Its eowepdons.
4. The type and amount of income that qualifies for the
exemption from tax.
5. Sufficient facts to justify the exemption from taut under the
terms of the treaty article.
Example. Article 20 of the US: China income tax treaty slows
an exemption from tax for scholarshiQ Income received by a
Chinese student temporarily present in the United States. Under
U.S. law, this student will become a resident alien for tax
purposes if his or her stay in the United States exceeds 5
calendar years. However, paragraph 2 of the first Protocol to the
U.S. -China treaty (dated April 30, 1984) allows the provisions of
Article 20 to continue to apply even after the Chinese 'student
becomes a resident alien of the United States. A Chinese
student who qualifies for this exception (under paragraph 2 of
the first protocol) and is relying of this exception to claim an
exemption from tax on his or her scholarship or fellowship
income would attach to Form W -9 a statement that includes the
information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to
backup withholding, give the requester the appropriate
completed Form W -8.
What is backup withholding? Persons making certain payments
to you must under certain conditions withhold and pay to the
IRS 28% of such payments. This is called 'backup withholding,"
Payments that may be subject to backup withholding include
interest, tax - exempt interest, dividends, broker and barter
exchange transactions, rents, royalties, nonernployee pay, and
certain payments from fisting boat operators. Real estate
transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments
YOU receive if you give the requester your correct TIN, make the
Proper certifications, and report all your taxable interest and
dividends on your tax return.
Payments you receive will be- subject to backup
withholding if.
1. You do not furnish your TIN to the requester.
2. You do not certify your TIN when required (see the Part 11
instructions on page 3 for details),
3. The IRS tells the requester that you furnished an incorrect
TIN,
4 The IRS left you that you are subject to backup
withholding because you did not report all you interest and
dividends on your tax return (for reportable interest and
dividends only), or
8. You do not certify to the requester that you are not subject
to backup withholding under 4 above obr reportable interest and
dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup
withholding. See the WW I" below and the separate
Instructions for the Requester of Form W-9.
Also sea Special rules for parUmsfte on page 1.
Penalties
Failure to furnish TiN. It you fait to furnish your correct TiN to a
requester, you are subject to a penalty of $50 for each such
failure unless your Whine Is due to reasonable cause and not to
willful neglect.
Civil penalty for false information with respect to
withholding. if you make a false statement with no reasonable
basis that results in no backup withholding, you are subject to a
$500 penalty.
Criminal penally for falsifying information. Willfully falsifying
certifications or affimrelions may subject your to criminal
penalties Including fines andror imprisonment.
Misuse of TINS. If the requester discloses or uses TINS in
violation of federal law, the requester may be subject to dud and
criminal penalties.
Specific Instructions
Name
If you are an Individual, you must generally enter the name
shown on your income tax retum. However, if you have changed
your test name, for instance, due to marriage without informing
the Social Security Administration of the name change, enter
your first name, the last name shown on your amid security
card, and your new last name.
If the account is in joint names, list first, and then circle, the
name of the person or entity whose number you entered in Part 1
of the form.
Sole proprietor. Fetter your individual name as shown on your
income tax return on the "Name" brie. You may enter your
business, trade, or "doing business as (1313/)" name on the
'Business name" line.
Lknited liability company (LLC). Check the "Umlted liability
company" box only and otter the appropriate rode for the tax
classification ("D" for disregarded entity, "C" for corporation, "P"
for partnership) in the space provided.
For a single- member LLC (including a foreign LLC with a
domestic owner) that is disregarded as an entity separate from
its owner under Regulations section 301.7701 -3. enter the
owner's name on the "Name" line. Ester the LLC's name on the
"Business name" line.
For an LLC classified as a partnership or a corporation, enter
the LLC's name on the "Name" line and any business, trade, or
DBA name on the "Business name" line.
Other entities. Enter your business name as shown on required
federal tax documents on the "Name" line. This name should
match the name shown on the charter or other legal document
creating the entity. You may enter any business, trade, or DBA
name on the "Business name' line.
Note. You are requested to check the appropriate box for your
status (individual /sole proprietor, corporation, etc.).
Exempt Payee
If you are exempt from backup withholding, enter your name as
described above and check the appropriate box for your status,
then check the "Exempt payee" box in the line following the
business name, sign and date the form.
25K -34
Oct 25 10 10:02a
P. 11
Form W -0 ray.10 -20071 pop 3
Generally, individuals pnduding sole proprietors) are not exempt
from backup withholding. Corporations are exempt from backup
withholding for certain payments, such as interest and dividends.
Note. If you are exempt from backup withholding, you should
still complete tlhia form to avoid possible erroneous backup
withholding.
The following payees are exempt from backup wilthliotdiry
1. An organization exempt from tax under section 501(a), any
IRA, or a custodial account under section 408 ft?) if the account
satlefles the requirements of section 4010,
2. The United States or any of its agencies or
instrumentalities,
3. A state, the District of Columbia, a possession of the United
States, or any of their political subdivisions or Instrumentalities,
4. A foreign gw4emment or any of its political subdivisions,
agencies, or instrumentalities, or
S. An international organization or any of Its agencies or
instrumentalities.
Other payees that may be exempt from backup withholding
include:
6. A corporation.
7. A foreign central bank of issue,
S. A dealer in securliies or commodities required to register in
the United Stales, the District of Cokunbia, or a possession of
the United States.
9. A futures commission merchant registered with the
Commodity Futures Trading Commission,
10. A real estate investment trust,
11. An entity registered at all times during the tax year under
the Investment Company Act of 1940,
12. A common trust fund operated by a bank under section
584(a).
13. A financial institution,
14. A middleman known in the investment community as a
nominee or custodian, or
15. A trust exempt from tax under section 664 or described in
section 4947.
The chart below shows types of payments that may be
exempt from backup withholding. The chart applies to the
exempt payees Read above, 1 through 15.
IF the payment Is for ...
THEN the payment is exempt
for.
Interest and dividend payments
All exempt payees except
for 9
Broker transactions
Exempt payees 1 through 13.
Also, a person registered under
the Westmont Advisers Act of
1940 who regularly acts as a
broker
Barter exchange transactions
Exempt payees 1 through 5
and patronage dividends
Payments over $600 required
Generaiy, gempt payees
to be reported and direct
_
i through 7
sales over $5,000'
Sea Fprm 10994AISC. Mlaoelianeous Incorne, end Its instructions. --
However. the foNowirtg PeYmertts made to a corporation pncludng gross
proceeds paid to an attamey under section 6045M even 0 the attorney is a
corporation) and reportable on Form 1099 -MISC are not exempt from
backup withholding: medical and health care payments. aMOmeys' lass. and
Aayrnenta for services paid by a tederal axommv agency.
Part 1. Taxpayer IdentiRcadon
Number (TIN)
Enter your TIN in the appropriate boot. If you are a resident
alien and you do not have and are not eligible to ggeett an SSN,
your TIN Is your IRS Individual taxpayer Identification number
QTiM. Enter it In the social security number box. If you do not
have an ITIN, see How to yet a 771V below.
N you are a sole proprietor and you have an EIN, you may
enter either your WN or 9N. However. the M prefers that you
use your SSN.
N you are a single - member LLC that is disregarded as an
entity separate from its owner (see LknMed Uabilijr company
40 on pme 2L enter the owners SSN (or EIN if the owner
has one). Do not enter the disregarded entity s 9A. If the I LC is
classified as a corporation or partnership, ender the entity's EIN.
Nato See the chant on page 4 for father clarification of name
and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one
Immediately. To apply for an SSN, get Farm SS-6, Application
for a Sock Security Card, from your local Social Security
Administration office or get this form online at www.ssa.gov. You
may also get this torn by calling 1-800- 772 -1219. Use Form
W-7. Application for IRS Individual Taxpayer Identification
Number, to applyY for an I11N, or From SS-4, Application for
Employer tdentiftcation Number, to apply for an EIN. You can
apply for an EiN online by aoceasirtg the IRS webeite at
www.hs.govIbuslnesses and clicking on Employer Identification
Number (W under Starting a Business. You can get Forms W -7
and SS4 from the IRS by visiting www.ks.gov or by calling
14K*- TAX -FORM (1- 800 - 829 - 3676).
If you are asked to complete Form W9 but do not have a TIN,
write "Applied For" In the space for the TIN, sign and date the
form, and give it to the requester. For Interest and dividend
payments, and certain payments made with respect to readily
tradable instruments, generally you will have 60 days to get a
TIN and give it to the requester before you are subject to backup
withholding on payments. The 60 -day rule does not apply to
other types of payments. You will be subject to backup
withholding on all such payments until you provide your TIN to
the requester.
Note. Entering "Applied For" means that you have already
applied for a TIN or that you intend to apply for one soon.
Caudion: A disregarded domesbc enVty that has a foreign owner
must use the appropriate Form W-8.
Part 11. Certification
To establish to the withholding agent that you are a U.S. person,
or resident alien, sign Form W -9. You may be requested to sign
by the withholding agent even if ftems 1, 4, and 5 below Indicate
otherwise.
For a joint account, only the person whose TiN Is shown in
Part 1 should sign (when required). Exempt payees, we Exempt
Payee on page 2.
Signature requirements. Complete the certification as indicated
in 1 through 5 below.
1. interest, dividend, and barter exchange accounts
opened before 1984 and broker accounts considered active
during 1983. You must give your correct TIN, but you do not
have to sign the certification,
I Interes% dividend, broker, and barter excdhango
accotmts opened after 1683 and broker accounts considered
inactive during 1983. You must sign the certification or backup
withhokfmg will apply. if you are subject to backup withholding
and you are merely providing your correct TIN to the requester,
YOU must cross out item 2 in the certification before signing the
form.
25K -35
Oct 25 10 10:03a
p.12
paps 4
Form W -9 (Rev. 10-2M
3. Heal estate transactions. You must elfin the cer"Hc&tbn-
You may cross out item 2 of the certillcatton.
4. Otter payments. You must give You Cotreet '171N, but you
do not have to sign the certification unless you have boon
notified that you have previously given an incorrect TIN. 'Other
payments" include payments made In the course of the
requester's trade or business for rents, royalties. goods (other
then bills for merchandise), medical and 1OWth care services
(including payments to corporations), payments to a
nonernployee for services, payments to certain fishing boat crow
members and fishermen, and gross proceeds paid to attorneys
(including payments to corporations).
S. Mortgage Interest paid by you, acquisition or
abandonment of secured property, cancellation of debt,
qualMted tuition program payments (under section &ilk, IRA,
Coverdell ESA. Archer MSA or HSA contn'butione or
distributions, and pension distributlons. You must give your
cornett TIN, but you do not have to sign the oerlifica
What Name and Number To Ghre the Requester
For this type of account
Give reams and Sew ok
1. kx1viduat
The Individual
2. Two or more individuals Qoint
The ansld owner of the account or,
account)
It combined funft the 11nt
Individual on the 600ount'
3. Custodian soowxrt of a minor
The mina `
(Uniform Gift to Minors Act)
4, a. The usual revocable savings
The grarttor- truateo'
trust (grantor is also trustee)
b. So- called trust account that Is
The actual owner'
not a legal or vend trust order
state law
5. Sole proprietorship or disregarded
The owner'
entity owned by an individual
For this "a of account:
Give name and EIN oft
6. Disregarded entity not owned by an
The owner
individual
J. A vaad trust, estate, or pension trust
Legal entity '
e. Corporate or LLC electing
The corporation
corporate status on Form 8832
9. Association, club, mOgkw%
The organization
charitable, educational. or other
tax - exempt organization
10. Partnership or mutti- member LLC
The partnership
11. A broker or registered norrlknee
The broker or nominee
12. Account with the Department of
The public entity
Agriculture in the name of a public
entity tsuch as a state or local
government, school cistrict or
prison) that receives agricultural
program payments
'Ust ra :t and circle the name dew Pusan whops number you Urn4h N arty am pnaon
on a joint e6aear has an 35N. that pw%Ws numbs mutt to Itxnhhed.
`Circle one ~2 name and furnpsh the mshorb SM
YOU must dhow your lndWuv) name and you may also sneer your bLe new or 'DW
name on the second name moo. You mW we 9H)w your SSN or f9N ft you haw one).
but the M utcomilas you to use your SSN.
' ust first and drdo the name or the oasts estate. or pension tnts6 too not banish are TIN
or !M perowar reprsssnmxve or ttvcree urdess the regal enmity scow is rut daienaied N
the account rme i Also see Special ndes Awp V"Vslejoe on pays 1.
Note. If no name is circled when more than one name Is listed,
the number will be considered to be that of the thirst name listed.
Privacy Act Notice
Secure Your Tax Records from Identity Theft
Identity theft occurs when someone uses your personal
wonnatbrt such as your nw, social security number p=4. or
other identifying Information. without your permission. of �
fraud or other crimes. An idenft thief may to re�ur S a refund.
a job or may file a taut I0AI using Your SSN
To reduce your risk:
• Protect your SSN,
• Ensure your employer is protecting your SSN, and
• Be careful when choosing a tax Praparer.
Call the IRS at 148004829.1040 if you think your Identity has
been used inappropriately for tax Purposes.
Vld'Srts of identity theft who are experiencing economic harm
or a bystem problem, or we sealing help in r*G0Mn9 tax
problems that have not been rewkw through normal channels,
be You reycWt nt
can reach TAS byc�tghe TAS toll-free Cass Intake film
at 1- 877- 777 -4778 or T Y/iDD 1-800- 829 -4059.
Protect yourself from suspicious snails or phishing
schemes. Phishing is the creation and use of email and
websltes designed to mimic legitimate business emails and
websim. The mod common act is sending an email to a user
falsey claiming to be an established legitimate enterprise in an
attempt to scam the user into surrendering private information
that will be used for identity theft.
The IRS does rot initiate contacts with taxpayers via emails.
Also, the IRS dose not request personal detailed 'information
through email or ask taxpayers for the PIN ntunbers, passwords.
or similar secret access information for their credit card. bank, or
other financial atxotints.
if you rtaceive an unsolicited emmi claiming to be from the iRS,
forward this message to phWWjQaffs.gov. You may also report
misuse of the IRS name. logo, or other iRS personal property to
the Treasury Inspector General for Tax Administration at
1- 800366 -4484. You can forward suspicious emails to the
Federal Trade Commission at Vameuce.gov or contact them at
www.consunw.govrjd&aft or 1- 877- IDTHEFT(438- 4338).
Visit the IRS webelte at www.irsgov to learn more about
Identity theft and how to reduce your risk.
Section 6109 of the Internal Revenue Code requires you Igo provide your correct TIN to persona who must Gee Information returns ugh the IRS to report interest,
dividends, and certain other Income paid to you, mortgage kftr*M you paid, the acquisition or abandorunent of secured property, cancellation of debt, or
contributions you made to an IRA, or Archer MSA or HSA The IRS tries the numbers for identification purposes and to boo verify the accuracy of your tax return.
The IRS may also Provide this information to the Department of Justice for civil and criminal litigation, and to titles, states, the District of Columbia. and U.S.
possesslons to carry out their tax laws. We may also disclose arts sdormation to other cow tries under a tax treaty, to federal and state agencies to enforce federal
nontax criminal laws, or to federal law entaoemerd and intsrigence agencies b combat lerrodsnn.
You must provide your nN whether or not you are required to Rio a tax return. Payers must generaay wHhhold 28% of taxable interest dividend. and certain other
Payments to a payee who sloes not give a TIN to a payer. Certain penalties may also apply.
s
J_ 011161,
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 Ricardo R.
Garibay (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 828 N. Bristol Street, Santa Ana, CA)
APN: 004 - 123 -48
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 voluntary encumbrances (whether monetary or non - monetary, general or
specific, including any and all leasehold interests), and 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 voluntary encumbrance
(whether monetary or non - monetary, general or specific, and including any and all leasehold
interests), 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, at City's expense, 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 THREE
MILLION ONE HUNDRED NINETY THOUSAND AND NO /100 Dollars ($3,190,000.00) insuring
the title of the City to said real property is free and clear of any and all encumbrances (whether
monetary or non - monetary, general or specific, and including any and all leasehold interests),
liens, excepting such specific ones as city may hereinafter expressly agree to take subject to.
Acceptance by City of any such policy of insurance shall constitute a waiver by City of its right to
such insurance as is herein required of Seller.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance
25K -37
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 45 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), and severance damages, the total sum of THREE MILLION ONE
HUNDRED NINETY THOUSAND AND NO /100 Dollars ($3,190,000.00). 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 subject to the
2
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rights of the existing tenants.
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), 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, and under threat of, condemnation.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, Attn: Kent
Jorgensen 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:
Ricardo R. Garibay
828 N Bristol, 103
Santa Ana, CA 92703 -2190
W F "MTJ *�
15. Exceptions. 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 seq. (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. 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.
20. Modification and Amendment. This Agreement may not be modified or amended except in
writing signed by the Seller and City.
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21. 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.
22. 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.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
24. 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 parry based upon any attribution to such party as the source of the language in
question.
25. 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.
26. Duty To Cooperate Further. Each parry 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.
27. Applicability of Aareement 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.
28. 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.
0
25K -41
29. 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: Ricardo R. Garibay
Ricardo R. Garibay Dated
CITY /BUYER:
CITY OF SANTA ANA
BY:
David N. Ream
City Manager
ATTEST:
BY:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY:
Jose Sandoval
Managing Senior Assistant City Attorney
Re
Dated
25K -42
EXHIBIT "A"
LEGAL DESCRIPTION
Real property in the City of Santa Ana, County of Orange, State of California, described as follows:
That portion of the northeast quarter of the southeast quarter of Section 11, Township 5 south, Range 10
West, San Bernardino Meridian, described as follows:
Parcel I, in the City of Santa Ana, County of Orange, State of California as shown on a map
filed Book 150, pages 12 and 13 of parcel maps, in the office of the County Recorder of
Orange County, California.
APN: 004 - 123 -48
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25K -43
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.
E:3
25K -44
ALL INCLUSIVE SETTLEMENT AGREEMENT
This Agreement ( "Agreement ") is made by and between the City of Santa Ana Public
Works Agency, a public body, corporate and politic ( "Agency ") and Garibay Tax Service
( "Tenant "). The Agency and Tenant are hereinafter sometimes referred collectively as the
"Parties."
RECITALS
A. Tenant operates a business, commonly known as Garibay Tax Service, located at
828 N. Bristol St., 103 Santa Ana, CA (the "Property ").
B. The Agency has made an offer to purchase the Property for the Bristol Street
Widening Project. The property owner, Ricardo R. Garibay, and Agency have
negotiated a Purchase and Sale Agreement ( "PSA ") for Owner's Property ( "Acquired
Property "), which will result in the termination of Owner's and Tenant's rights, title
and /or interests in the Acquired Property.
C. The Parties desire to resolve all issues relating to the Agency'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 Agency shall pay to Tenant the sum of $75,000.00 (Seventy -Five
Thousand 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
Agency will begin processing a second payment, payable to the Garibay Tax
Service, in the amount of $50,000.00. The Agency will make the final payment to
Garibay Tax Service the in the amount of $25,000.00, less any deductions
described in paragraphs 1 (c) (d) and (e) of this Agreement, after Tenant vacates
the Property, signs a Certificate of Abandonment, provides all keys to the
Property to the Agency or to the Agency'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 Agency 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),
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25K -45
furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or
damages of any nature.
(c) Tenant agrees to vacate the premises by no later than May 31, 2010 (Vacate
Date). Should Tenant remain in occupancy beyond the Vacate Date, a Two
Hundred Fifty Dollars ($250) per day penalty will be deducted from Tenant's
Settlement Payment, for each day of occupancy beyond the Vacate Date unless
a written request for an extension has been submitted and consequently
approved by the Agency or its Agents.
(d) Tenant hereby agrees that Agency 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. Any disposal costs associated with
Tenants' personal property, or clean up fees paid by the Agency, will be
deducted from the Tenant Settlement Payment.
(e) Commencing January 1, 2011 and ending May 31, 2011, rent will be $1,000 per
month. Tenant is obligated, however, to adhere to all other terms of their existing
Lease.
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 Agency, (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 Agency'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 Agency.
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(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.
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 nay
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.
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25K -47
(f) Tenant will Hold Harmless
contractors or representatives
nondisclosure of any other
referenced by this agreement.
and defend Agency, its employees, agents,
from any claims that may arise from Tenant's
interests in the Property or personal property
(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. Agency has delivered to Owner an offer to
purchase the Property under threat of eminent domain pursuant to Government
Code Section 7267.2. Tenant and Agency 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.
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 lnvalidit
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.
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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.
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.
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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.
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 Agency: Souri Amirani
Deputy City Engineer
City of Santa Ana Public Works Agency
20 Civic Center Plaza, M -36
Santa Ana, California 92701
To Tenant: Garibay Tax Services
c/o Hector Garibay
828 N. Bristol, Suite 103
Santa Ana, CA 92703
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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 Agency 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.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the
date first written above.
TENANT: Garibay Tax Service
BY: Dated
Its:
CITY OF SANTA ANA
BY: Dated
David N. Ream
City Manager
ATTEST:
Dated
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY: Dated
Jose Sandoval
Chief Assistant City Attorney
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ALL INCLUSIVE SETTLEMENT AGREEMENT
This All Inclusive Settlement Agreement ( "ASA" or "Agreement ") is entered into
on , 2010 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 Clinica Medica San Miguel ( "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 Clinica Medica San
Miguel, and is the occupant of the real property and improvements located at 1302 W.
Santa Ana Blvd, also known as 316 N. Bristol Street ( "Property ").
B. On January 29, 2010, as part of the Bristol Street Widening Project, the City acquired
from In Saba, Inc the Property occupied by Tenant.
C. The Parties' rights and obligations with regard to the acquisition of the Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth.
D. Tenant will develop a replacement retail structure ( "Replacement Structure ") on the
lot immediately west and adjacent to the Property, identified as APN 007 - 183 -08.
Construction of Replacement Structure is expected to be completed on or about, June
30, 201 1.
E. Tenant qualifies as a displaced person under California Code of Regulations, Title 25,
Division 1, Chapter 6, and is therefore eligible for relocation benefits as described
therein. Tenant acknowledges that they have been informed of the City's relocation
program and that they have received written material describing the relocation
program, including a General Information Notice, an Informational Brochure and a
Notice of Eligibility. Tenant understands that they are under no obligation to enter
into this ASA and move into the Replacement Structure. Tenant understands and
acknowledges that they may choose to relocate from the Property to an alternate site.
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 has determined and Tenant has agreed to accept THREE HUNDRED
THOUSAND AND NO /100 DOLLARS ($300,000.00), as compensation for
relocation assistance and /or other relocation benefits to which Tenant may be
entitled, and any and all loss of business goodwill, leasehold interests, personal
property, improvements pertaining to realty, bonus value, severance damages, and
any and all other damages to which Tenants may be entitled as a result of City's
acquisition of the Acquired Property for the Project.
All Inclusive Settlement Agreement
Page 1 of 9
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b. As part of this ASA, City has agreed to sell to Tenant, the Surplus Property,
( "Surplus Property ") identified in the Exhibit "A" and `B" of this Agreement for
THREE HUNDRED THOUSAND FORTY NINE FOUR HUNDRED
EIGHTY TWO AND NO /100 DOLLARS ($349,482.00).
C. Tenant hereby expressly acknowledges and agrees that it shall acquire the Surplus
Property "AS IS" and "WHERE IS," and "WITH ALL FAULTS ". Tenant shall
acquire the Property after such inspection, analysis, examination and investigation
as it cares to make and expressly without City's covenant, warranty or
representation, whether express or implied, statutory or otherwise, as to physical
condition, environmental conditions, zoning or other regulation, compliance with
law, suitability for particular purposes, or any other matter whatsoever. Tenant
expressly acknowledges that it shall have been afforded ample opportunity to
inspect, analyze and investigate all aspects of the Surplus Property and conditions
relevant thereto and the business conducted thereon, and Tenant shall rely on
Tenant's own investigation and inspection, and all matters relating thereto and
agrees that City has and shall have no liability or obligation whatsoever. Tenant
acknowledges that city is not making any representations as to the future granting
of any city approvals, if any, required for the development of the Surplus
Property. Tenant hereby expressly acknowledges that, notwithstanding anything
to the contrary contained in this Agreement or elsewhere, City has not made and
shall not be deemed to have made any representations or warranties whatsoever
regarding the Surplus Property or otherwise, and there shall be no obligations of
City that shall survive the Closing. Tenant hereby assumes all risks in connection
with the Surplus Property and the matters referred to in this Section.
d. City agrees to convey said Surplus Property to Tenant, 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 ASA.
e. The Parties agree to open an escrow for the purchase and sale of said Surplus
Property in accordance with the terms and conditions of this Agreement (the
"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 signed this Agreement. This
Agreement constitutes the joint escrow instructions between the Parties' and a
duplicate original of this Agreement shall be delivered to the Escrow Agent upon
the opening of the escrow. Escrow to close within 30 days of the City's execution
of this Agreement. The Parties' agree to execute such escrow instructions as the
Escrow Agent shall reasonably require in connection with the opening and
administration of the Escrow, provided that all such escrow instructions shall be
consistent with the terms of this Agreement and any modifications to this
Agreement mutually agreed upon by Tenant and City.
The Parties agree to split escrow fees 50 percent each. City agrees to pay cost of
any transfer taxes, recording fees, cost of title insurance, document preparation
fees, incidental to the conveying of said real property to City.
All Inclusive Settlement Agreement
Pa e 2 of 9
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Such real property taxes, if any, on said real property for the fiscal year within
which said real property is conveyed to Tenant 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. City
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 Tenant is recorded which is allocable to that
portion of the fiscal year which begins on the date the deed conveying said real
property to Tenant 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
f. Payment of Purchase Price.
Tenant agrees to use the proceeds it would be entitled to under paragraph la
towards the purchase price of the Surplus Property. Tenant agrees to deposit the
remainder of the purchase price in the sum of FORTY NINE THOUSAND
FOUR HUNDRED EIGHTY TWO AND NO /100 DOLLARS ($49,482) in the
Escrow with the Escrow Agent within TEN (10) days from and after the date on
which the City has signed this Agreement, and the Escrow Agent is hereby
authorized to pay the same to City upon and after:
Conveyance of said Surplus Property by City to Tenant as hereinabove
provided;
Delivery to Tenant a policy of title insurance as hereinabove provided;
Recordation of the Grant Deed conveying said Surplus Property to Tenant.
g. Possession. City agrees to deliver to Tenant, quiet and peaceful possession of
said Surplus Property, conditional upon Bristol Drug Co. vacating the lower first
floor of the building, located on Property. Tenant 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 Bristol Drug Co.
occupancy as it relates to the Surplus Property.
h. Vacating Date. Tenant agrees to vacate Property on or before June 30, 2011.
Payment of the consideration referenced in section 1 of this ASA, shall constitute
full satisfaction of any and all of City's obligations to compensate Tenant.
j. As a matter of record, the compensation paid to Tenant in accordance with this
ASA shall be proportioned in the following amounts: Relocation benefits
shall equal $128,000. Payment for any loss of furniture, fixtures and equipment,
All Inclusive Settlement Agreement
Page 3 of 9
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bonus value, improvements to realty, business goodwill, and/or severance
damages shall equal $172,000.
2. Release
a. Tenant, on behalf of itself, its agents, assigns and related entities, agree 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, and claims for loss of business goodwill, bonus value (if any)
and /or severance damages (if any), including claims from vendors, independent
contractors, 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.
5. Entire Agreement
This ASA contains the entire Agreement of the Parties hereto pertaining to the subject
matter discussed herein, and supersedes any prior written or oral agreements between
them concerning the subject matter contained herein. This ASA may be modified only
by a writing executed by the Parties hereto.
All Inclusive Settlement Agreement
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6. Partial Invalidi
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.
7. 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. Necessa y Acts
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
ASA and with respect to the meaning of California Civil Code § 1542.
All Inclusive Settlement Agreement
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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: Raul Torres
Clinica Medica San Miguel
c/o Law Offices of Nick Mosich
2204 E. Fourth St., #100
Santa Ana, CA 92705
All Inclusive 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 All Inclusive Settlement Agreement as of the
date first written above.
TENANT:
Clinica Medica San Miguel
By:
Its:
CITY OF SANTA ANA:
By:
David N. Ream
City Manager
ATTEST:
M.
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
Jose Sandoval
Chief Assistant City Attorney
Date
MR(
Date:
2010
Date: 12010
All Inclusive Settlement Agreement
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
All that certain real property situated in the County of Orange, State of California,
described as follows:
All Inclusive Settlement Agreement
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EXHIBIT B
All Inclusive Settlement Agreement
Page 9 of 9
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w_ ►Q*
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
(Residential)
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 Joaquin Torres (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 622 N. Bristol, 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, , located at 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 (including any and all leases), 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 (including any and all leases), 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 insurance company, with the City therein named as the insured, in the amount
TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000) insuring the title of
W_ fte l
the City to said real property is free and clear of any and all conditions, restrictions,
reservations, exceptions, easements, assessments, profits, limitations, encumbrances
(including any and all leases), 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 title 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 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, the total sum of TWO
HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000). 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
25K -64
(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. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and
correct statement of rentals (Estoppel Certificate) 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 thereto. 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. 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 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,.
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:
622 N. Bristol
Santa Ana, CA 92703
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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 26220 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,
4
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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.
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.
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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.
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.
The parties have executed this Agreement as of the date written below.
SELLER: BUYER:
CITY OF SANTA ANA
By: Date: 2010 By:
Joaquin Torres David N. Ream
City Manager
ATTEST AS TO FORM: ATTEST:
Joseph W. Fletcher
City Attorney
By:
6
Date:
Jose Sandoval
Chief Assistant City Attorney
Date: 2010
2010 By: Date: 2010
Maria D. Huizar
Clerk of the Council
W mle ee�
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
Lot 1, and the south 14 feet of Lot 2, Tract No. 662, in the City of Santa Ana, County of
Orange, State of California, as shown by map recorded in Book 24, Page 17 of
Miscellaneous Maps, in the office of the County Recorder, County of Orange, California.
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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.
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When recorded, please mail this
instrument and tax statements to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M -36
Santa Ana, California 92701
Free recording requested by
THE CITY OF SANTA ANA PER
USE
GOVERNMENT CODE SECTION 6103.
SPACE ABOVE THIS LINE FOR RECORDER'S
CANCEL
APPROVED AS TO
APPROVED BY
DESCRIPTION
DESCRIPTION
A,P.
R/W MAP
PROJECT
TAXES
FORM BY ATTY,
DIRECTOR
WRITTEN BY
CHECKED -O.K.
NUMBER
NUMBER
NUMBER
X
405 - 073 -15
622 N. Bristol, Santa Ana
(Address /Approximate Location)
DEED NUMBER
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, JOAQUIN TORRES
Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California, fee simple title to the real property in the City of Santa Ana, County of
Orange, State of California, described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
Dated
STATE OF
CALIFORNIA )SS.
COUNTY OF I
2010, before me,
By: Joaquin Torress
personally appeared
, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument
and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies),
and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
SIGNATURE OF NOTARY PUBLIC PLACE NOTARY SEAL ABOVE
MAIL TAX STATEMENTS AS DIRECTED ABOVE
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF
SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
Lot 1, and the south 14 feet of Lot 2, Tract No. 662, in the City of Santa Ana, County of Orange, State
of California, as shown by map recorded in Book 24, Page 17 of Miscellaneous Maps, in the office of
the County Recorder, County of Orange, California.
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