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HomeMy WebLinkAboutORO CORPORATION DBA SILVA & SILVA ENTERPRISESA-2011-015 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 existing under the Constitution and laws of the State of California ("City") and Oro Corporation dba Silva and Silva Enterprises ("Tenant"). The City and Tenant are hereinafter sometimes referred collectively as the "Parties." RECITALS A. Tenant operates a business, commonly known as Silva & Silva Enterprises, located at 918 N. Bristol Street, Santa Ana, CA (the "Property"). t- ,-q B. The City has made an offer to purchase the Property for the Bristol Street Widening co Project. The property owners, Jonathan and Delia Silva and City have negotiated a Purchase and Sale Agreement ("PSA") for the Property ("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 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 Tenant the sum of $228,000.00 (Two Hundred Twenty Eight 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 City will begin processing an initial payment, payable to Silva & Silva Enterprises, in the amount of $128,000.00. The City will make the final payment to Tenant in the amount of $100,000.00 after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City'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 City 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), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Tenant agrees to vacate the Property on or before May 31, 2011 or sixty days after close of escrow for the Property, whichever occurs later ("Vacate Date"). (d) Tenant 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 Tenant. (e) Payment will be made for Relocation Expenses in the amount of $70,000. (f) Payment will be made for Loss of Business Goodwill in the amount of $158,000. (g) Tenant agrees to pay monthly rent to City in the amount of $1,000 after close of escrow for the Property. 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 City, (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 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 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. (f) Tenant will Hold Harmless and defend City, 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. (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. City has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and City 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 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. 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 inure to the benefit of, and shall b 11. Necessary Acts e rein, this Agreement shall ns, successors in interest, agents and related entities 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. 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 City: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Jonathan and Delia Silva Oro Corporation dba Silva & Silva Enterprises 918 N. Bristol Street Santa Ana, CA 92703 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 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: BY: Jox� i BY: Delia Silva Dated Dated /a / 9 c" / !b CITY OF SANTA ANA BY: trL�� `;;/ ✓ `��_.� _ Dated David N. Ream City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fle er City AttgM 1,f A (-w SanddvaI Sing Senior Assistant City Attorney Dated '_�b -) Dated 9-- I LI — i II rd1ng Requested By This Document H electronically recorded by DIPS Norwalk C RECORDING REQUESTED BY First American Title Company AND WHEN RECORDED MAIL DOCUMENT TO: City of Santa Ana 20 Civic Center Plaza M 30 Santa Ana, CA 92701 /--`10/f-0/5 A.P.N.: 004-122-38 Subject Property: 918 N. Bristol St., Santa Ana, CA Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE 2011000206125 03:48pm 04/22/11 65 404 G02 A04 4 0.00 0.00 0.00 0.00 9.00 0.00 0.00 0.00 Space Above This Line for Recorder's Use only GRANT DEED 'lr File No.: OSA-3195802 (RCB) The Undersigned Grantor(s) Declare(s): DOCUMENTARY TRANSFER TAX $; CITY TRANSFER TAX $; e XeM r+- ;� computed on the consideration or full value of property conveyed, OR computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale, unincorporated area; [ x I City of Santa Ana, and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, ]onthan Manuel Silva and Delia Silva, husband and wife as joint tenants hereby GRANTS to City of Santa Ana. a charter city and municipal corporation duly organized under the Constitution and laws of the State of California the following described property in the City of Santa Ana, County of Orange, State of California: LOT 26 OF TRACT NO. 1262, AS SHOWN ON A MAP RECORDED IN BOOK 39 PAGE 6 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. Mail Tax Statements To: SAME AS ABOVE Grant,Deed -'continued A.P.N.: 004-122-38 Dated: 03 /09 / 2011 Jon rvle_=_"' STATE OF CALIFORNIA _ )SS COUNTY OF ORANGE ) Delia Silva Date: 03/09/2011 File No.: OSA-3195802 (RCB) On MARCH 25, 2010 before me, PAOLA SILVA---------- , Notary Public, personally appeared JONATHAN M. SILVA JR. & DELIA SILVA---------•--- , who proved to me on the basis of satisfactory evidence to be the persons whose nam /are subscribed to the within instrument and acknowledged to me that lksve/they executed the same in Vsm-r/their authorized capacity, and that by Vs/hy(/their signature(�) on the instrument the persoro, or the entity upon behalf of which the persoro) 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. PAOLA SILVA COMM. # 1893994 o N NOTARY PUKIC•CALIrORNU Signature ORANGE COUNTY 0my COMA EXP. JUNE 21, 2O4 My Commission Expires: JUNE 27, 2014 Notary Name: PAOLA SILVA Notary Registration Number:_ #1893994 This area for offidal notarial seal Notary Phone: 714-333-6928 County of Principal Place of Business: Orange Page 2 of 2 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in the real property conveyed by the deed dated March 25, 2011, from Jonthan Manuel Silva and Delia Silva, husband and wife as joint tenants to the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS-2352 and Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1998, in compliance with California Government Code Section 27281 and the grantee consents to recordation thereof by its duly authorized officer. APR 20Z011 Dated For the City of Santa Ana: ge, �-' ca— City Manager CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of Orange SS City of Santa Ana On this 20th day of ADril' 2011, before me, Maria R. Huizar , Notary Public, personally appeared David N. Ream who proved to me on the basis of satisfactory evidence to be the rs /persons whose r a�/names tWare-subscribed to the within instrument and acknowledged to me that i V/s�/they executed the same in MherAheir authorized apace capacities and that by SI her/fheir gnatu�P Aignatures on the instrument the Tje s /p®r-serts, or the entity upon behalf oof wTi'Ich the e s /persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL 1pwn�I�Mae a `aura commy CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ® Corporate [] Officers Title(s) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian/Conservator ❑ Other: Witness my hand and official seal. Signature of Notary SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: GRANT DEED, SILVA AND SILVA TITLE OR TYPE OF DOCUMENT: GRANT DEED NLLI-3=1:Zo]MJ_[ei 6 9jA'j II N§10Ifl1IIVAI21kqII SIGNER (S) OTHER THAN NAMED ABOVE: