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HomeMy WebLinkAboutPOPULAR MEDICAL CLINIC & GASTON & RUTH CILLIANI LIVING TRUST 1 - 2007 . ;;l) t)'.~~ (j- .10VGf'~ G"D~ ","-'- ;~~~ t'- :::::;O::J <:;) 0-0::0 '0 ~CL,U~ cr>u..O ;-.-40 o:E ...... Z:::.:::~ tJ.J cr: LL..l ex: UQ-.Jo.. ~ 3- c.J c:::c cr: => V} z: L.U l- e-,: <.:> A-2007-077 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("Agreement'") is made and entered into on Apv-. I '7- ,2007 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 (hereinafter "City'" or "Buyer'"), and Popular Medical Clinic Inc., a California corporation (hereinafter "Clinic'"), and The Gaston and Rnth Cilliani Living Trnst, dated Febrnary 31, 1991, of which Gaston and Ruth Cilliani are the named Co- Trustees (hereinafter "Owner'"). City, Clinic and Owner are hereinafter sometimes collectively referred to as the "Parties'". RECITALS A. Clinic operates a business commonly known as the Popular Medical Clinic and is the occupant of the real property and improvements located at 420 S. Bristol Street, Santa Ana, California, more specifically described in Exhibit "A", Legal Description, attached hereto (hereinafter the "Property'"). The Gaston and Ruth Cilliani Living Trust, dated February 31, 1991 is the fee owner of the Property. B. The Property is located within the Area of the Bristol Street Widening Project from Pine Street to McFadden Avenue and City intends to acquire a portion of the Property for a public use. C. The Parties' rights and obligations with regard to the acquisition of the 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 Property by City upon the terms and conditions as hereinafter set forth. NOW THEREFORE, in addition to the compensation outlined in the Purchase and Sale Agreement For Acquisition of Real Property and Bilateral Escrow Instructions (hereinafter "PSA'"), the Parties agree as follows: I. Consideration A. City agrees to pay to Clinic the sum of Seventy Five Thousand and No/I00 Dollars ($75,000) as compensation for any and all loss of business goodwill, leasehold interests, personal property, severance damages, and any and all other damages associated with the purchase of the Property by City from Owner. B. Said amount is to be paid after the Parties have executed this Agreement and after Clinic has completely vacated the Property, and after all Tenants have signed and delivered a Certificate of Abandonment to the City. Said amount, as identified in paragraph A will be paid within 14 days of the City's receipt and acceptance of the Certificates of Abandonment Acquisition Settlement Agreement Page 1 of7 referenced above, with interest accruing at 10% per annum for each day thereafter. C. Receipt of full payment of the consideration referenced in section lea) above, will constitute full satisfaction of any and all of City's obligations to Clinic and Owner, including, without limitation, any obligations for loss of business goodwill, leasehold interests, compensation for personal property, improvements and/or any other damages of any nature. 3. Failure to Vacate and/or Demolish the existing building and other improvements from the Propertv (A) As of the Vacation Date, if Clinic has not removed all its moveable personal property, trade fixtures, furniture and equipment from the existing building and other improvements to the Property, Clinic and Owner authorize the City to remove said items at Clinic and Owner's expense. All Parties to this Agreement agree that any and all demolition costs paid for by the City shall be deducted from the Consideration as identified in paragraph lea) of this Agreement. (B) Upon the Vacation Date, if Owner has not demolished or removed the existing building and other Improvements from the Property, Owner authorizes the City, in its sole and absolute discretion, to remove said building and Improvements at Owners expense. All Parties to this Agreement agree that any and all costs associated with the demolition of the existing building and all other Improvements on the Property shall be paid by the Owner, and subtracted from said amount identified in paragraph lea) of this Agreement. 5. Release (A) Clinic and Owner, individually and collectively on behalf of themselves, their 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 Clinic and/or Owner now have or may in the future have against City arising from the acquisition of the Property, including, but not limited to, trade fixtures, furniture and equipment, Leasehold interests, and including, but not limited to, claims for loss of business goodwill and/or severance damages. This release is intended as a full and complete release and discharge of any and all such claims that Clinic and/or Owner mayor might have against City and/or its agents or related entities arising from the facts and circumstances described in this Agreement. In making this release, Clinic and Owner intend to release City, its related entities and Agents from any liability of any nature whatsoever for any claim or injury or for damages and remedies in law or equity, including Acquisition Settlement Agreement Page 2 of7 declaratory or injunctive relief of any kind, whether the claim, or any facts on which such claim might be based, is known or unknown to the real party in interest of said claim(s). Clinic and Owner expressly waive all rights under Section 1542 of the Civil Code of the State of California, which Clinic and Owner understand provides as follows: 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. (B) Clinic and Owner acknowledge that they may hereafter discover facts or law different from or in additional to those facts and laws which it now believes to be true with respect to their release of claims. Clinic and Owner agree 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. Clinic and Owner shall not be entitled to any relief or remedies in law or equity in connection herewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. (C) No Party nor any Agents nor any related entities to this Agreement have made any statement or representation to any other Party regarding any fact relied upon in entering into this Agreement, 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 Agreement, except as is expressly stated in this Agreement. Each Party to this Agreement has made such investigation of the facts and law pertaining to this Agreement, 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. 6. Attornev's Fees In the event of litigation relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 7. Indemnitv Bv Clinic and Owner Clinic and Owner shall individually and collectively 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 Clinic and/or Owner of any provision of this Agreement or the falsity of any representation or warranty made by Clinic or Owner contained in this Agreement. Acquisition Settlement Agreement Page 3 of7 8. Entire Agreement This Agreement 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. 9. Partial Invalidity In the event that any term, covenant, condition or provision of this Agreement 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. 10. Waiver The provisions of this Agreement may be waived, altered amended or repealed, in whole or in part, only upon the written consent of all Parties to this Agreement. The waiver by one party of the duty of performance by the other Party of any provision in this Agreement shall not invalidate this Agreement, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this Agreement. II. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience only and shall not be considered for any purpose in construing this Agreement. 12. 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. 13. 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 Agreement, this Agreement 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. 14. Necessary Acts Each Party to this Agreement 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 Agreement. Acquisition Settlement Agreement Page 4 of7 . . 15. Advice Of Counsel Each Party hereto, by its execution of this Agreement, represents to every other Party that it has reviewed each term of this Agreement with its counsel and hereafter no Party shall deny the validity of this Agreement on the ground that the party did not have advice of counsel. Each Party to this Agreement has had the opportunity to receive independent legal advice with respect to the advisability of entering into and being bound by this Agreement and with respect to the meaning of California Civil Code Section 1542. 16. 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 Agreement. 17. Authoritv To Execute This Agreement Each Party executing this Agreement represents that it is authorized to execute this Agreement. Each Party executing this Agreement on behalf of an entity, other than an individual executing this Agreement on his or her own behalf, represents that he or she is authorized to execute this Agreement on behalf of said entity. 18. Construction Each Party has cooperated in the drafting and preparation of this Agreement. In any construction or interpretation to be made of this Agreement, or of any of its terms, conditions and/or provisions, the same shall not be construed against any party. 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 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 Acquisition Settlement Agreement Page 5 of7 . . . With copy to: To Clinic: and Owner Gaston and Ruth Cilliani 2544 S. Wilson Tustin, CA 92701-1268 20. 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. IN WITNESS WHEREOF, the Parties to this Agreement have executed this Agreement as of the date first written above, CLINIC: Popular Medical Clinic, Inc. By: /-t:~ (~-d4'-rl'(,PI;\ _/<,--,/~ ./ /,,'J, >LT Print Name and Title Date 34;/1-''7 / / OWNER: For: The Gaston and Ruth Cilliani Living Trust, dated February 31,1991 By' ;c';~;J' . Date ~h/~ate tJ3-06 ~O-::;- aston Cilliani, Co- Trustee ~~ham,s;.o;rrustee ~A. BY: ,.~ ~ David N. Ream City Manager Patricia E, Healy Clerk of the Council APPROVAL TO FORM: Joseph W. Fletcher, City Attorney oval ssistant City Attorney BY: Jose Seni Acquisition Settlement Agreement Page 6 of7 . . . . 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: The easterly 35 foot-wide strip of land Lot 1 of the Sepulveda Tract, as shown on a map recorded in Book 31, Page 197 of Deeds, in the Office of the County Recorder of Los Angeles County, California, described as follows: Beginning at the Southeast corner of said Lot 1, said point being on the East line of Section 14, Township 5 South, Range 10 West, in the Rancho Santiago De Santa Ana; thence North 0 17' East, 146.70 feet along the East line of said Section; thence Westerly 176.03 feet to a point which is North 143.50 feet from the South line of said Lot 1; thence Southerly 143.50 feet to a point on the South line of said Lot 1, said pOint being West 176.00 feet from the Southeast corner of said Lot 1; thence East 1760.00 feet to the point of beginning. PORTION OF APN: 007-302-22