HomeMy WebLinkAboutC-5106(C) - Settlement Agreement for Sign Replacement/Relocation and Joint Escrow Instructions (Jamboree Road Improvements - Bristol Street North to Fairchild RoadORIGINAL
PROJECT: Jamboree Road Improvements — Bristol Street North to Fairchild Road
SETTLEMENT AGREEMENT FOR SIGN REPLACEMENT/RELOCATION
AND JOINT ESCROW INSTRUCTIONS
This SETTLEMENT AGREEMENT FOR SIGN REPLACEMENT/REATIONAND JOINT
ESCRQW INSTRUCTIONS ("Agreement") is entered into this ffivday of
(n , 2012 by and between the City of Newport Beach, a Municipal
Corporation (hereinafter called "Buyer"), and CENTERPOINTE OWNERS ASSOCIATION, a
California corporation (hereinafter called "Seller") for the replacement and relocation of two (2) signs
owned by Seller as hereinafter set forth.
RECITALS:
WHEREAS, Buyer desires to replace and relocate two (2) signs (the "Signs") owned by
Seller in connection with Buyer's construction of the Jamboree Road Improvements — Bristol Street
North to Fairchild Road Project ("Project"). One of the Signs to be relocated (the "MacArthur Corner
Sign") is currently located at the corner of Jamboree Road and MacArthur Boulevard, and the other
one of the Signs to be relocated (the "North Entrance Sign") is currently located at the northerly
entrance to the "Centerpointe" complex from Jamboree Road, in approximately the current locations
shown on Exhibit 1 attached hereto. The proposed new locations of the MacArthur Corner Sign and
the North Entrance Sign are also shown on Exhibit 1 attached hereto; and
WHEREAS, Buyer has established an amount believed to be fair and just compensation for
such sign replacement and relocation, and has advised Seller of the basis for its determination of
fair and just compensation; and
WHEREAS, Seller has accepted Buyer's offer as fair and just compensation for the
replacement and relocation of the Signs and acknowledges such compensation is no less than fair
market value; and
WHEREAS, Seller acknowledges and agrees that Buyer only intends to proceed with this
Agreement and the Project if Buyer is able to simultaneously acquire those portions of Assessor
Parcel Numbers 445-132-09, 445-132-11 and 445-132-18 necessary to complete the Project.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT
AND LEGAL SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE FOREGOING
RECITALS ARE HEREBY INCORPORATED IN THIS AGREEMENT BY REFERENCE AND IT IS
MUTUALLY FURTHER AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1. AGREEMENT TO REPLACE AND RELOCATE SIGNS. Seller and Buyer agree to replace
and relocate the Signs, upon the terms and for the consideration set forth in this Agreement
(hereinafter called "Agreement").
2. PRICE. Buyer will pay to Seller the sum of Thirty Eight Thousand Five Hundred Dollars
($38,500.00) (the "Price") in connection with the work required to remove and
replace/relocate the Signs, pursuant to all of the terms and conditions of this Agreement.
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3. ESCROW. Buyer and Seller agree to open an escrow in accordance with this Agreement
with Orange Coast Title Company (the "Escrow Agent "). Buyer and Seller acknowledge and
agree that Buyer will also be entering into separate escrows pursuant to the separate
agreements between (a) Buyer and Bates, Johnson Building, Ltd., a California Limited
Partnership, (b) Buyer and First California Bank, a California banking corporation, and (c)
Buyer and CIP Centerpointe 1236 LLC, a Delaware limited liability company, for the
acquisition of all of the other property necessary to complete the Project, and these separate
escrows will also be entered into with Escrow Agent. This Agreement constitutes the joint
escrow instructions of Buyer and Seller to Escrow Agent, and Escrow Agent is hereby
authorized and instructed to act under this Agreement. The parties acknowledge and agree
that the escrow under this Agreement shall close concurrently with the escrows under each
of the other agreements mentioned above, so that the Buyer is able to acquire all the
property set forth in this Agreement and in the other agreements mentioned above that is
necessary to complete the Project. The parties acknowledge and agree that the escrow
under thisAgreement shall not close if Buyer is unable to acquire those portions of Assessor
Parcel Numbers 445 - 132 -09, 445 - 132 -11 and 445 - 132 -18 necessary to complete the
Project. If for any reason whatsoever the escrow under this Agreement is unable to close
due to the foregoing, then neither Seller nor Buyer shall be in default hereunder.
The parties hereto agree to perform all acts reasonably necessary to close this escrow in the
shortest possible time; provided, however, that the escrow shall close not later than May 31,
2012, unless the parties mutually agree otherwise in writing. .
Buyer agrees to deposit the Price upon demand of Escrow Agent on or before the close of
escrow hereunder, together with all other funds required from Buyer hereunder. Buyer and
Seller agree to deposit with Escrow Agent any additional instruments as maybe reasonably
necessary to complete this transaction.
All funds received in this escrow shall be deposited with other escrow funds in a general
escrow account(s) and may be transferred to any other such escrow trust account in any
State or National Bank doing business in the State of California. All disbursements shall be
made by check from such account or by wire transfer pursuant to Seller's written
instructions.
4. ESCROW AGENT IS AUTHORIZED TO, AND SHALL:
Upon the close of escrow hereunder:
a. Pay and charge Buyer for any escrow fees, charges, and costs payable under
Section 5 of this Agreement;
b. Disburse the funds comprising the Price to Seller by wire transfer pursuant to Seller's
written instructions. In no event will the funds comprising the Price to be disbursed
to Seller at the close of escrow be reduced except upon Seller's prior written
approval of an estimated closing statement showing each specific item to be paid
from Seller's funds with Seller's prior written approval.
The term "close of escrow ", if and where written in these instructions, shall mean the date
the funds comprising the Price have been disbursed to Seller by wire transfer pursuant to
Seller's written instructions.
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All time limits within which any matter herein specified is to be performed may be extended
by mutual agreement of the parties hereto. Any amendment of, or supplement to, any
instructions must be in writing.
TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS TO CLOSEAS
SOON AS POSSIBLE; provided, however, that the escrow shall close not laterthan May 31,
2012, unless Buyer and Seller mutually agree otherwise in writing.
5. ESCROW FEES, CHARGES AND COSTS. Unless otherwise specified in this Agreement,
Buyer agrees to pay all of Buyer's and Seller's and Escrow Agent's reasonable fees,
charges, and costs which arise in this escrow.
6. FULLAND COMPLETE SETTLEMENT. Seller hereby acknowledges that the compensation
paid to Seller through this Agreement constitutes the full and complete settlement of any and
all claims against Buyer, by reason of the replacement and relocation of the Signs and the
Project, specifically including, but not limited to, any and all damage to Seller's property by
reason of the installation of the improvement Project in the manner proposed, the value of
improvements pertaining to the realty, leasehold improvements, any and all claims of rental
or leasehold value and loss of business goodwill, any claim of Seller for relocation benefits
or assistance, and any and all other claims that Seller may have, whether or not specifically
mentioned here, relating directly or indirectly to the improvement Project. Seller and Buyer,
and each and all of their individual collective agents representatives, attorneys, principals,
predecessors, successors, assigns, administrators, executors, heirs, and beneficiaries,
hereby release the other party, and each of them, from any and all obligations, liabilities,
claims, costs, expenses, demands, debts, controversies, damages, causes of action,
including without limitations those relating to just compensation, damages, which any of
them now have, or might hereafter have by reason of any matter or thing arising out or in any
way relating to Buyer's acquisition of the Property interests described herein.
7. CONSTRUCTION CONTRACT AND CURATIVE WORK AND OTHER CONSIDERATION.
a. It is understood and agreed by and between the parties hereto in addition to the
compensation shown in Section 2 hereinabove, the Buyer, its contractors or assigns,
shall perform the following construction contract items at the time of the installation
of the proposed Project:
Construct both retaining and planter walls at the intersection of MacArthur
Blvd. and Jamboree Rd. in accordance with City's construction drawing
number R- 5998 -S.
b. It is understood and agreed by and between the parties hereto that the
compensation paid to Sellerthrough thisAgreement includes all coststo be incurred
by the Seller in connection with the replacement and relocation of the Signs,
including, but not limited to, all permits and soft costs associated with the
replacement of the Signs. The parties agree that the duties of the Buyer and the
Seller in connection with the replacement and relocation of the Signs are as follows:
Buyer shall tear down and demolish the MacArthur Corner Sign from its
current location as shown on Exhibit 1 attached hereto, and Buyer shall re-
install the foundation of the MacArthur Corner Sign at its proposed new
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location as shown on Exhibit 1 attached hereto. Seller shall then re -clad and
add lettering to the new MacArthur Corner Sign.
ii. Buyer shall tear down and demolish the North Entrance Sign from its current
location as shown on Exhibit 1 attached hereto. Seller shall then re- install
the North Entrance Sign at its proposed new location as shown on Exhibit 1
attached hereto, and Seller shall also re -clad and add lettering to the new
North Entrance Sign.
iii. After both the MacArthur Corner Sign and the North Entrance Sign have
been re- installed, re -clad and lettered as provided above, Seller shall repair
and replace the landscaping in connection with such replacement and
relocation of the Signs.
c. [Intentionally omitted.]
d. All work done under this Agreement by Buyer shall conform to all applicable building,
fire and sanitary laws, ordinances, and regulations relating to such work, and shall
be done in a good and workmanlike manner, fully paid for and lien -free, at Buyer's
sole cost and expense. All structures, improvements or other facilities, when
removed, and relocated, or reconstructed by the Buyer, shall be left in as good
condition as found.
e. Buyer agrees to indemnify and hold harmless Seller from any liability arising out of
Buyer's operations under this Agreement. Buyer further agrees to assume
responsibility for any damages proximately caused by reason of Buyer's operations
under this Agreement and Buyer will, at its option, either repair or pay for such
damage.
8. WARRANTIES, REPRESENTATIONS, AND COVENANTS OF SELLER. Seiler hereby
warrants, represents, and /or covenants to Buyer that:
a. Neither the execution of this Agreement nor the performance of the obligations
herein will conflict with, or breach any of the provisions of any bond, note, evidence
of indebtedness, contract, lease, or other agreement or instrument to which the
Seller may be bound.
b. Until the closing, Seller shall, upon learning of any fact or condition which would
cause any of the warranties and representations in this Section 8 not to be true as of
closing, immediately give written notice of such fact or condition to Buyer.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of which so
executed shall, irrespective of the date of its execution and delivery, be deemed an original,
and all such counterparts together shall constitute one and the same instrument.
10. 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 Buyer herein. The execution of these documents and the
delivery of same to Escrow Agent constitute such acceptance and approval.
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11. NO BROKERS. Buyer and Seller each represents to the other that no brokers have been
involved in this transaction. Buyer and Seller agree to indemnify one another against any
claim, suits, damages and costs incurred or resulting from the claims of any person for any
fee or remuneration due in connection with this transaction pursuant to a written agreement
made with said claimant.
12. JURISDICTION AND VENUE. This Agreement shall be governed by and constructed in
accordance with the laws of the State of California. The parties consent to the jurisdiction of
the California Courts with venue in Orange County.
13. ASSIGNMENT. The terms and conditions, covenants, and agreements set forth herein shall
apply to and bind the heirs, executors, administrators, assigns and successors of the parties
hereto. Buyer may freely assign any or all if its interests or rights under this Agreement or
under the Escrow without the consent of Seller; provided, however, that such assignment
shall not release Buyer from its obligations hereunder.
14. COOPERATION. Each party agrees to cooperate with the other in the closing of this
transaction and, in that regard, to sign any and all documents which may be reasonably
necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
15. ENTIRE AGREEMENT, WAIVER AND MODIFICATION. This Agreement is the entire
Agreement between the parties with respect to the subject matter of this Agreement. It
supersedes all prior agreements and understandings, whether oral or written, between the
parties with respect to the matters contained in this Agreement. Any waiver, modification,
consent or acquiescence with respect to any provision of thisAgreement shall be set forth in
writing and duly executed by or on behalf of the party to be bound thereby. No waiver by any
party of any breach hereunder shall be deemed a waiver of any other or subsequent breach.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year set
forth hereinabove.
Mailing address of Seller:
19712 MacArthur Blvd., Suite 300
Irvine, CA 92612-2446
Mailing Address of Buyer:
PO Box 1768
Newport Beach, CA 92658-8915
APPROVED AS TO FORM:
Office of the City ttorney
By:
Aar . Harp,
City Attorney
Mailing Address of Escrow Agent:
634196.1
SELLER:
Centerpointe Owners Association, a
Ca
By:
Na
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The City of Newport Beach, a Municipal
Corporation ---�
By:
Nancy Gardne, Ma or
ATTEST TO:
eilaffii I. Brown, City Clerk
CONSENT OF ESCROW AGENT: s
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By its signature hereto, the undersigne
Escrow Agent agrees with each of Buyer and
Seller to act in accordance with all of the terms
and conditions of the foregoing Agreement
that are applicable to the Escrow Agent.
ESCROW AGENT:
ORANGE COAST TITLE COMPANY
By:
Name: jrzfn,e ' e�
Title: VVI
EXHIBIT 1
MAP SHOWING CURRENT AND PROPOSED LOCATIONS OF
MACARTHUR CORNER SIGN AND NORTH ENTRANCE SIGN
634196.1
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