Loading...
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. -1- 639196.1 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. -2- 639196.1 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 -3- 639196.1 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. -a- 639196.1 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.] -5- 639196.1 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 Titl R11 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 �+c� flRrP 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 a 9 a E 101 0 W W cc O in IN (D \,,F- U LZ o � M �z z0 F- X z w Q N U