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HomeMy WebLinkAbout25J - AGMT - SETTLEMENT BRISTOL ST WIDENINGREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 5, 2014 TITLE: PURCHASE AND SETTLEMENT AGREEMENTS WITH TUAN ANH PHAN AND HOANG NGO PHAN FOR THE BRISTOL STREET IMPROVEMENTS PROJECT (PROJECT NO. 116740 NO�NGENE'RAL/FUN``D) CITY MANAOiER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1a' Reading ❑ Ordinance on 21d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the following agreements with Tuan Anh Phan and Hoang Ngo Phan, husband and wife, as joint tenants of the property located at 1405 North Bristol Street (APN 405 - 272 -17), subject to nonsubstantive changes approved by the City Manager and City Attorney: 1) A purchase agreement in the amount of $550,000 for the full purchase price for said real property. 2) An all- inclusive settlement agreement in the amount of $200,000 as total compensation for relocation assistance, and any and all related expenses and claims for relocation benefits, moving, interest of any kind in real estate and leasehold, and loss of goodwill (if any). Bristol Street is a major north -south transportation facility, which is designated as a major arterial highway in the City's Circulation Element of the General Plan. The improvement of the 3.9 -mile Bristol Street segment from Warner Avenue to Memory Lane has been a long -term priority project that is being constructed in several phases. Improvements include the widening of the street from two to three lanes in each direction, raised landscape medians, and bike lanes. The Public Works Agency is acquiring property for development of Phase 1116, in the area bounded by Washington Avenue and Seventeenth Street, and expects to complete the acquisition process by December 2014. Construction is anticipated to begin during the middle of 2015. To accommodate the improvements for Phase IIIB, full acquisition of the mixed -use property located at 1405 North Bristol Street is required (Exhibit 1). An offer based on the appraised value prepared by an appraiser licensed by the State of California was made on June 16, 2014. The property owner accepted the City's offer of $550,000. In accordance with Title 25 of California 25J -1 Purchase Agreement with Phan for the Bristol Street Improvements Project August 5, 2014 Page 2 of 2 Relocation Guidelines, the owners are also entitled to relocation benefits and related expenses totaling $200,000. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). Approval of this item also supports the City's efforts to meet Goal #3 Economic Development, Objective #2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies), Strategy C (support business development and job growth along transit corridors through the completion of critical transit plans /projects). ENVIRONMENTAL IMPACT In 1990, City Council approved these proposed improvements as the Bristol Street Final Environmental Impact Statement/Environmental Impact Report (FEIS /EIR No. 89 -01). Since the adoption of the 1990 FEIS /EIR, due to several minor design modifications at Phase 1116 between Washington Avenue and Seventeenth Street, an Addendum to the FEIS /EIR was prepared and adopted according to the California Environmental Quality Act by City Council on July 1, 2014. FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund account (No. 05917661- 66220) and Measure M2 Street Construction Fund account (No. 03217662 - 66220). Edwin "William" Galvez, P.E. Interim Executive Director Public Works Agency EWG /KN APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Location Map 2. Purchase Agreement 3. All- Inclusive Settlement Agreement 25J -2 25J -3 4 (NTS) LEGEND: 495-252 -19 495- 252 -18 495- 252 -17 WASHINGTON AVENUE I p f I I 1 r4 8 t SUBJECT PROPERTY - ACOLII IRED PROPERTIES Exhibit 1 Location Map --• • • r - • 25J -4 495-272 -19 W Ill I m j 495- 272 -18 - 11-4' 'r"27 1,7,E 14651 N1 i ® 495- 272 -16 495- 272 -15 rr m 495- 272 -14 1319 N BRISTOL ST WASHINGTON AVENUE I p f I I 1 r4 8 t SUBJECT PROPERTY - ACOLII IRED PROPERTIES Exhibit 1 Location Map --• • • r - • 25J -4 PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA "), entered Into on .................. 2014, 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 "City" or "Buyer"), and Tuan Ann Phan and Hoang Ngo Phan, Husband and Wife as Joint Tenants (hereinafter "Seller "), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, that certain real property (hereinafter "Said Real Property ") legally described as follows: SEE EXHIBIT "A" — Legal Description ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1405 N. Bristol Street, Santa Ana, CA) (APN: 405- 272 -17) 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. Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non - monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non- monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. 3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of Five Hundred Fifty Thousand AND NO /100 Dollars ($550,000.00) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non - monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement. Exhibit 2 25J -5 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close no sooner than 15 days but within 30 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 8 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 uncollectibie if unpaid by reason of Section 5086 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of Five Hundred Fifty Thousand AND N01100 Dollars ($550,000.00). 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, (e) All tenants to have vacated the property 7. Possession. Seller agrees to deliver to City, on December 31, 2014, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. Page 2 of 9 25J -6 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 City and deliver same to City 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 City. Seller hereby agrees not to rent any units on the premises which are vacant as of the date that this agreement is executed by seller, or which may be vacated by present occupants prior to close of escrow. In return, the City agrees to reimburse seller lost rentals incurred by keeping units vacant through the 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 City 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 City 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 the 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 PSA, 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. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages. 11 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 92701, County of Orange, State of California. The mailing address of the Seller is: Tuan Anh Phan and Hoang Ngo Phan 1405 N. Bristol Santa Ana, CA 92706 14. Exceptions. City agrees to accept title to said real property subject to the following: NONE. 15, All Inclusive Settlement Agreement. Concurrently with this PSA, the parties have entered into an All Inclusive Settlement Agreement ( "Settlement Agreement "), for all other issues related to the acquisition of the Property, in the amount of $200,000. 16. Entire Agreement. Together with the Settlement Agreement it Is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this PSA 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. Without full execution of both this PSA and the Settlement Agreement, both the PSA and the Settlement Agreement are null and void and are not enforceable. 17. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, Page 3 of 9 25J -7 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 (1) 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. 51317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 at se q. (42 U.S.C. S6903) or (A) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. 89601 et sec, (42 U.S.C. S9601). 17, 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. 18. 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 (1) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the 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. 19. Contin enc . 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. Page 4 of 9 25J -8 20. Modification and Amendment, This PSA may not be modified or amended except in writing signed by the Seller and City. 21. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force. 22. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA. 23. Governina Law. This PSA 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 advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA 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. 25. No Third Party Seneficia . This PSA 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 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 PSA, without cost. 27. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA. 28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this PSA, 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. In the event the City does not sign this Purchase and Sale Agreement, this Purchase and Sale Agreement is null and void and is not enforceable. 29. incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth In the body of this PSA. Page S of 9 25J -9 IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above. SELLER: Tuan Anh Phan and Hoang Ngo Phan, Husband and Wife as Joint Tenants Date: U-1 r S , 2014 Tuan Anh Ph�a�n� Date: i t�- -ia 201-4 Hoang Ngo Phan City /Buyer City of Santa Ana David Cavazos City Manager Attest: Maria D. Huizar City Clerk Approved as to Form: e S dovai C i f Assistant City Attorney Date: Date: 2014 2014 Date: 03A k- k- i4 , 2014 Page 6 of 9 25J -10 17"41 ill"T LEGAL, DESRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follows: LOT 13 OF TRACT NO. 863, NOBLE PARK NO. 2, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 26 PAGE(S) 30 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APNa405- 272 -17 Page 7 of 9 25J -11 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. After close of City escrow of the property at 1405 N. Bristol, the $550,000 will be deposited in the sellers' personal account by a check or wire transfer as they have instructed the First American Title. 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 proration of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements andlor 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. Page 8 of 9 25J -12 When recorded, please mail this instrument and tax statements to: Cleric of the Council City of Santa Ana 20 Civic Center Plaza, M -30 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103, SPACE ABOVE THIS LM FOR RECORDER'S USE CANCEL 'TAXES X APPROVED AS TO FORM 13Y ATTY, APPROVED BY DIRECTOR DESCRIM[ON wMl "IiN BY DESCRI[MON CIIECKED,O.K. A. P. NUMBER 405- 272 -17 WWMAP NUMBER PROJECT NCMM11 1405 N. Bristol StrcNt, Smnn Ane, CA DEED NUMBER GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Tuan Anh Phan and Hoang Ngo Phan, Husband and Wife as Joint Tenants Do 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, for public roadway purposes, all that real prope+��jn the City of Santa Ana, County of Orange, State of California, located at 1405 N. Bristol Street, described as follows: gip,► SEE EXHIBITS "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART Ob, Dated By: Tuan Anh Phan Dated Hoang Ngo Phan Page 9 of 9 25J -13 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ( "Agreement ") is made by and between the City of Santa Ana, a charter city and municipal corporation duly organized and exiting wider the Constitution and laws of the State of California ( "City') and Twin Anh Phan and Hoang Ngo Phan, Husband and Wife as Joint Tenants ( "Owner "), The City and Owner are hereinafter sometimes referred to collectively as the "Parties." RECITALS A. Owner operates a business, commonly known as H &H Tax, and is the occupant of real property located at 1405 N, Bristol, Santa Ana, CA (the "Property'). Owner also occupies the Property as their principal residence. B. On October 4, 2013, the City made an offer to acquire the Property, and on June 12, 2014, the City made an updated offer to acquire the Property for the Bristol Stxeet Widening Project, C. The Parties desire to resolve all issues relating to the City'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 City shall pay to Owner the sum of $200,000.00 (Two hundred Thousand Dollars) (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 City will begin processing an initial payment ( "Initial Payment ") in the amount of $148,500.00. This Initial Payment will be deposited into escrow for Phans' replacement property within fifteen business days from approval of this Agreement by City Council. Owner agrees to cooperate with City and to allow City to request that an amendment be added to the escrow instructions for the replacement property. This amendment will require that the Initial Payment will be refunded to the City, should escrow for the replacement property fail to close within 110 days, for whatever reason. In this instance, and assinning escrow is opened on another replacement property, the Initial Payment will be applied toward such replacement property. The City will mare the final payment in the amount of $51,500.00, less ally deductions described in paragraphs I (c) & (d) of this Agreement, after Owner vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to Exhibit 3 25J -14 the City or to the City's agent, and provides written verification that all hazardous materials have been legally and properly moved. (b) Owner agrees, that the consideration received, pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the City to Owner, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, any potential loss of business goodwill, compensation for personal property (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Owner agrees to vacate the premises by no later than December 31, 2014 (Vacate Date). Should Owner remain in occupancy beyond the Vacate Date, a Two Hundred Fifty Dollars ($250) per day penalty will be deducted from the Owner 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 City or its Agents, (d) Owner hereby agrees that City 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 Owner. Any disposal costs associated with Owners' personal property, or clean up fees paid by the City, will be deducted from the Owner Settlement Payment. 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 Parries, 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 Owner, 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, dernaids, 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 City, (2) Owner's leasehold interest, if any, in 2 of 7 25J -15 the Property (or any portion thereof) or (3) any other right or interest Owner may have, assert, or claim by reason of City'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 City. (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 Imown 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 fiill 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 notwithstanduig 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 any 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) Owner 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 Owner of any of the 3 of7 25J -16 released claims, and that Owner will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Owner acknowledges that the City has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Owner will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from Owner's nondisclosure of any other interests in the Property or personal property referenced by this agreement. (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. Owner and City now wish to enter into this Agreement in lieu of and under threat 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 City and Owner 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. hrdemni 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. Purchase and Sale Agreement Concurrently with the execution of this All Inclusive Settlement Agreement, the parties have entered into a Purchase and Sale Agreement ( "PSA "), for the property in the amount of $550,000. 7. Entire Agreement Together with the PSA, this Agreement contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. Without full execution of both the PSA and the Agreement, both the PSA and this Agreement are null and void and not enforceable. 4 of 7 25J -17 8. 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. 9. 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. 10. 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. 11, 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, 12. 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, 13. 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. 14. Advice of Counsel The Parties, and each of the, aclmowledge 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; aid, 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 5of7 25J -18 limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542, 15. Authorit to o 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, If the City does not sign this Agreement, this Agreement is null and void and is not enforceable. 16. Construction Each party has cooperated in the drafting acid 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, 17. 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. 18, 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. 19. 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 City: Jason Gabriel Principle City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M -36 Santa Ana, California 92701 To Owner: Tuan Anti Phan and Hoang Ngo Phan 1405 N. Bristol Street Santa Ana, CA 92706 6 of 7 25J -19 20. 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 court, due to any diversity of citizenship between the Parties or due to the fact that either the City 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. OWNER: Tuan Anh Phan Title —� Tax Identification No. Date C c 2�t Y Hoang 6� Title Tax Identification No. Dat e CITY OF SANTA ANA BY: Dated David Cavazos City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Caivalho City Attorney � BY:1 n L 4 — Jo Sandoval Ch' f Assistant City Attorney 7of7 25J -20 Dated Dated _ VI — 14!