HomeMy WebLinkAbout25B - AGMT - SETTLEMENT BRISTOL CORRIDORREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
MAY 2, 2011
TITLE:
SETTLEMENT AGREEMENTS FOR
BRISTOL STREET CORRIDOR
(PROJECT NO. 116744)
r
Wr-CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 15t Reading
? Ordinance on 2"d Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached agreements subject
to nonsubstantive changes approved by the City Manager and City Attorney
• Raymond G. Mori, tenant of the property located at 1631 North Bristol Street, Suite 302, in
the amount of $20,830.
• Diet Clinic NN Medical located at 1631 North Bristol Street, Suite 308, in the amount of
$14,000.
DISCUSSION
On March 6, 2006, the City Council approved the cooperative agreement between the City and the
Orange County Transportation Authority to fund Bristol Street improvements from Warner Avenue
to Seventeenth Street. The first phase of the project (between Pine Street and McFadden Avenue)
was completed in April 2011. The Public Works Agency is acquiring property for the second
phase of the project (between Third Street and Civic Center Drive) and for the intersection at
Bristol Street and Seventeenth Street.
To accommodate the widening of the intersection, acquisition of the entire property at 1631 North
Bristol for is required (Exhibit 1). This acquisition also necessitates the relocation of all the tenants
in the building. Raymond G. Mori, the tenant in Suite 302, and Diet Clinic NN Medical, the tenant in
Suite 308, operate their business in this building. They have agreed to the settlement amounts for
the relocation of their businesses (Exhibit 2).
25B-1
Settlement Agreements For
Bristol Street Corridor
May 2, 2011
Page 2
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the proposed project has been
determined to be adequately evaluated in the previously prepared Environmental Impact
Report/Environmental Impact Assessment No. 89-01 approved by City Council in 1990.
FISCAL IMPACT
Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661-66100).
APPROVED AS TO FUNDS AND ACCOUNTS:
Rau odinez II Francisco Gutierrez rp
Executive Director Executive Director
Public Works Age y Finance & Management Services Agency
RG/SA
Exhibit 1: Location map
Exhibit 2: Agreements
25B-2
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SANTA ANA
CITY COUNCIL SETTLEMENT AGREEMENT FOR
AGENDA DATE
P? BRISTOL STREET CORRIDOR
P? WORKS ?EN MAY 2, 20r (PROJECT NO. 116744)
SANTA ANA
25B-4
EXHIBIT 2
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 Raymond G. Mori ("Tenant"). The City and Tenant are
hereinafter sometimes referred collectively as the "Parties." The Effective Date of this
Agreement shall be , 201.1, the date on which the Agreement has been fully
executed by the City and Tenant.
RECITALS
A. Tenant operates a business, commonly known as Raymond G. Mori, Attorney at
Law, located at 1631 N. Bristol Street, Suite 302, Santa Ana, CA 92706 (the
"Property").
B. The City is in the process of purchasing the Property for the Bristol Street Widening
Project. As a result of the City's acquisition, the Tenant will be displaced from the
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 $20,830.00 (Twenty Thousand Eight
Hundred Thirty 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 Tenant, in the amount of
$10,000.00. The City will make the final payment to Tenant in the amount of
$10,830.00 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.
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25B-5
(c) Tenant agrees to vacate the Property on or before June 1, 2011 ("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 $20,000.00.
(f) Payment will be made for leasehold, loss of business goodwill and immovable
furniture, fixtures and equipment in the amount of $830.00.
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.
25B -6
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 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) 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.
I 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.
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25B-7
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 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.
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25B-8
11. 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.
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:
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25B-9
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: Raymond G. Mori, Attorney at Law
1631 N. Bristol #302
Santa Ana, CA 92706
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.
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25B-10
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the
date first written above.
TENANT:
BY: !
Ray and G. Mori
Dated q/S11 I
CITY OF SANTA ANA
BY:
David N. Ream
City Manager
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
Dated
Dated
BY: Dated
Jose Sandoval
Managing Senior Assistant City Attorney
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25B-11
F Claim for Fixed Payment in Lieu of Actual Moving and Related Expenses
Nonpro
Business, Organizations Operations
fit
INSTRUCTIONS: This claim is for the use ordisplaceJ businesses, nonprofit
un,Uamans.:md from npe,atmns that sash to apply for a Fi-I Payment in Lieu or
Actual Moving Expenses raU:cf than apply for .Actual Moving Bitenses. The Agency: City of Santa Ana
minimum fixed payment is S 1,000 00, the nummtun fired payment is 5:0,000.00.
The Agency trill captain the difference: between the nco paymerts. lryou are
eligible to 6imw zither payment, the .Agency representative will kelp you determine Protect: Bristol Street Widening Project
U hich is most advNUacasus. and will help you complete the form. 11 the full amount
of your claun is not approved, the Agency q ill provide you with am riuen explanation
of the reason If you are net satisfied w ah the Agency's determination, you may Cage #' STA-036-01631-302
appeal Utat dttermmanon. The ASency will explain how to make an appeal. This
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Assistance and Real Prapaty policies Act (URA) and'er California Relocation Program Rules: OPC Claim Serial Number:
Assistance acs.
[ ] Federal [X] State [ )Other LG1302
SECTION A: GENERAL
1. Name Under Which Claimant Conducts Operations- 2. Name, Title and Phone # of Person Filing Claim on Behalf of Claimant:
Raymond G. Mori - Law Office Raymond G. Mori -Attorney - 714/542-3966
3a. Address From Which Claimant Moved: 3b. Date First Occupied: 3c. Date Move Started:
1631 N. Bristol, Ste. 302, Santa Ana 92706 1/111996 Pending
4a. Address to Which Claimant Moved: 4b. Date Move Completed: 5. Is This a Final Claim?
Pending Pending [x] Yes [ ] No
6. Type of Operation (Check One): 7. Type of Ownership (Check One):
[xJ Business [ ] Farm Operation [ J Nonprofit Operation [x] Sole Propriet. [ ] Corporation ( ) Partnership [ ] Nonprofit Org.
8. Computation of Payment
ITEM AMOUNT CLAIMED 1n):?I;1?1 ?E(u?Yd?) ; ?)tti ,',
(1) Amount from Line (3), (6), (9) or (12) of Section E on reverse.
(if less than $1,000 enter $1,000, if more than $20,000 enter $20,000) $20,000.00
(2) Amount Previously Received for Expenses Claimed Here (if any)
(3) Amount Requeted (Line (1) minus Line (2)) $20,000.00
9. Certification by Claimant(s)
Warrning: If you knowingly or deliberately make false statements on this form, you may be subject to civil or criminal penalties under Section 1001 of Title 18 of the United States Coda. In
addition, you may not receive any of the amounts claimed on this forth. I CERTIFY that this claim and supporting information are true and complete, that 1 have not submitted any other
claim for the expenses listed, and that I have not boon paid for the expenses by any other source. My choice of type of payment was made on the basis of full explanation by the displacing
Agency ropresentative the difference between the two typos of payment available and the eligibility requirements foreach.
Signature(s) of Claima
t(s) or Claimant(s) Agent): Title (Type or Print): Dale:
n
1, fV1---? Rc, rti..t}? C Rov_i 4f /-S
FOR AGENCY USE ONLY
Payment Action: Amount of Payment: Signature: Name (Type or Print). Dale:
10. Recommended $20,000.00 t ? Michele Folk 4/412011
PrincipalNice President
11. Approved $20,000.00
overland, Pacific A Cutter, Inc. Page t of2
25B-1 2 =BC-05 (4/O4)
SECTION B: Name and Address or Other Establishments Operated By or Affiliated With Business or Nonprofit Organization (if None, type "None")
Name:
None Address: Type of Business or Activity:
SECTION C: Gross Receipts Determination for Business or Farm Operations
ITEM BASE PERIOD
r Gr
R
i
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R
d All
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s
G
t
S
L
t Year:2008 Year:2009 Average:
ross
p
s o
urns an
owa
e
ece
oss
a
es,
ess
e $225,784.00 $169,767.00 $197,775.50
SECTION D: General Tax Information (NOT to be completed by Nonprofit Organizations)
Name(s) Used on Income Tax Return(s) Tax Returns Filed with Director of Internal Revenue In:
Raymond G. Mori YEAR CITY STATE
Employer Identification Number(s) Shown on Tax Return(s)
68-0078287
2008
Santa Ana
CA
Principal Business Activity Type Reported on Tax Retum(s)
Law Office
2009
Santa Ana
CA
SECTION E: Computation of Average Net Earnings or Net Revenues for Base Period
ITEM (com
lete a
riate table)
ro BASE PERIOD
p
pp
p I Year: 2008 Year: 2009 Average:
TABLE 1: INDIVIDUAL OR SOLE PROPRIETOR (Relates to IRS Form 1040)
(1) Net Profit (or Loss) Before Taxes from IRS Form 1040 $194,079.00 $139,867.00
(2) Compensation Paid to Owner, Owners Spouse and Dependents
(List names and amounts in Remarks)
(3) Net Earnings (Add lines (1) and (2) $194,079.00 $139,867.00 $166,973.00
TABLE II: CORPORATION (Relates to IRS Form 1120 or 11205)
(4) Taxable Income (form 1120) or Ordinary Income (form 1120-S)
(5) Compensation Paid to Principal Stockholders, Their Spouses and Dependents
(List names and amounts in Remarks)
(6) Net Earnings (Add lines (4) and (5)) ;0.00 $0,00 $0.00
TABLE III: PARTNERSHIP (Relates to IRS Form (1065)
(7) Ordinary Income (or Loss) Before Taxes from IRS Form 1065
(8) Compensation Paid to Principal Partners, Their Sopuses and Dependents
(List names and amounts in Remarks)
(9) Net Earnings (Add lines (7) and (8)) $0.00 $0.00 $0.00
TABLE IV: NONPROFIT ORGANIZATION
(10) Annual Gross Revenues:
(11) AdminisirativeExpenses
.
(12) Net Revenues (Subtract line (11) from line (10) $0.00 $0.00 $0.00
REMARKS:
Based on Mr. Mori's average annual net earnings, he is eligible for the maximum $20,000 fixed payment in lieu of a payment for
actual reasonable moving and related expenses. Per tenant request, OPC staff reviewed and returned copies of his 2008 & 2009 tax
returns, verifying their contents for this claim on March 30th.
Overland, Pacific & Culler, Inc. Page 2 of 2
25B-13 =BC-05(4104)
RAYMOND MOR[, ATTORNEY AT LAW
IMPROVEMENTS PERTAINING TO THE REALTY
EFFECTIVE DATE OF VALUE - APRIL 14; 2010
Fair Market Forced
Item Value in Liquidation
No. Qty. Description Place Value
1 I Lot of minor miscellaneous installations, including, but $50 $0
not limited to, hooks, bolts, and wall fasteners
2 1 Lot of data cabling and computer networking 420 0
3 1 Interior surveillance camera, manufacturer and model no. 360 25
not available, including wall bracket, video cabling, and
electrical
TOTAL IMPROVEMENTS PERTAINING
TO THE REALTY $830 $25
25B-14
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 Diet Clinic NN Medical ("Tenant"). The City and Tenant are
hereinafter sometimes referred collectively as the "Parties." The Effective Date of this
Agreement shall be , 2011, the date on which the Agreement has been fully
executed by the City and Tenant.
RECITALS
A. Tenant operates a business, commonly known as Diet Clinic NN Medical, located at
1631 N. Bristol Street, Suite 308, Santa Ana, CA 92706 (the "Property").
B. The City is in the process of purchasing the Property for the Bristol Street Widening
Project. As a result of the City's acquisition, the Tenant will be displaced from the
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 $14,000.00 (Fourteen 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 Tenant, in the amount of
$7,000.00. The City will make the final payment to Tenant in the amount of
$7,000.00 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.
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25B-15
(c) Tenant agrees to vacate the Property on or before May 15, 2011 ("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 $13,595.00.
(f) Payment will be made for leasehold, loss of business goodwill and immovable
furniture, fixtures and equipment in the amount of $405.00.
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.
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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 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) 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.
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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. Indemnitv
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 Invalidit
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 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.
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11. 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.
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:
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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: Diet Clinic NN Medical
c/o Dr. Tu Nquyen
702-A W. 17 Street
Santa Ana, CA 92706
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.
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the
date first written above.
TENANT:
fu -Nguyen
1
Dated i it
CITY OF SANTA ANA
BY: Dated
David N. Ream
City Manager
ATTEST:
Dated
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY: Dated
Jose Sandoval
Managing Senior Assistant City Attorney
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