HomeMy WebLinkAboutCLINICA MEDICA SAN MIGUEL-2010A-2010-223
ALL INCLUSIVE SETTLEMENT AGREEMENT
This All Inclusive Settlement Agreement ("ASA" or "Agreement") is entered into
on 11 t ?; 2010 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 Clinica Medica San Miguel ("Tenant"). City and Tenant may
collectively be referred to in this ASA as the "Parties."
RECITALS
A. Tenant operates a business on the Property commonly known as Clinica Medica San
Miguel, and is the occupant of the real property and improvements located at 1302 W.
Santa Ana Blvd, also known as 316 N. Bristol Street ("Property").
B. On January 29, 2010, as part of the Bristol Street Widening Project, the City acquired
from In Saba, Inc the Property occupied by Tenant.
C. The Parties' rights and obligations with regard to the acquisition of the Acquired 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 Acquired Property by City upon the terms and conditions as hereinafter set forth.
D. Tenant will develop a replacement retail structure ("Replacement Structure") on the
lot immediately west and adjacent to the Property, identified as APN 007-183-08.
Construction of Replacement Structure is expected to be completed on or about, June
30, 201 1.
E. Tenant qualifies as a displaced person under California Code of Regulations, Title 25,
Division 1, Chapter 6, and is therefore eligible for relocation benefits as described
therein. Tenant acknowledges that they have been informed of the City's relocation
program and that they have received written material describing the relocation
program, including a General Information Notice, an Informational Brochure and a
Notice of Eligibility. Tenant understands that they are under no obligation to enter
into this ASA and move into the Replacement Structure. Tenant understands and
acknowledges that they may choose to relocate from the Property to an alternate site.
Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and
subject to the terms, conditions and provisions of this ASA, the Parties agree as follows:
Consideration
a. City has determined and Tenant has agreed to accept THREE HUNDRED
THOUSAND AND NO/100 DOLLARS ($300,000.00), as compensation for
relocation assistance and/or other relocation benefits to which Tenant may be
entitled, and any and all loss of business goodwill, leasehold interests, personal
property, improvements pertaining to realty, bonus value, severance damages, and
any and all other damages to which Tenants may be entitled as a result of City's
acquisition of the Acquired Property for the Project.
All Inclusive Settlement Agreement
Page I Of 9
b. As part of this ASA, City has agreed to sell to Tenant, the Surplus Property,
("Surplus Property") identified in the Exhibit "A" and "B" of this Agreement for
THREE HUNDRED THOUSAND FORTY NINE FOUR HUNDRED
EIGHTY TWO AND NOA00 DOLLARS ($349,482.00).
C. Tenant hereby expressly acknowledges and agrees that it shall acquire the Surplus
Property "AS IS" and "WHERE IS," and "WITH ALL FAULTS". Tenant shall
acquire the Property after such inspection, analysis, examination and investigation
as it cares to make and expressly without City's covenant, warranty or
representation, whether express or implied, statutory or otherwise, as to physical
condition, environmental conditions, zoning or other regulation, compliance with
law, suitability for particular purposes, or any other matter whatsoever. Tenant
expressly acknowledges that it shall have been afforded ample opportunity to
inspect, analyze and investigate all aspects of the Surplus Property and conditions
relevant thereto and the business conducted thereon, and Tenant shall rely on
Tenant's own investigation and inspection, and all matters relating thereto and
agrees that City has and shall have no liability or obligation whatsoever. Tenant
acknowledges that city is not making any representations as to the future granting
of any city approvals, if any, required for the development of the Surplus
Property. Tenant hereby expressly acknowledges that, notwithstanding anything
to the contrary contained in this Agreement or elsewhere, City has not made and
shall not be deemed to have made any representations or warranties whatsoever
regarding the Surplus Property or otherwise, and there shall be no obligations of
City that shall survive the Closing. Tenant hereby assumes all risks in connection
with (lie Surplus Property and the matters referred to in this Section.
cl. City agrees to convey said Surplus Property to Tenant, by Grant Deed, at the
office of First American Title Insurance Company, 2 First American Way, Santa
Ana, California, within thirty (30) clays from and after the date on which the City
has approved this ASA.
e. The Parties agree to open an escrow for the purchase and sale of said Surplus
Property in accordance with the terms and conditions of this Agreement (the
"Escrow") at the office of First American Title Insurance Company, 2 First
American Way, Santa Ana, California, (the "Escrow Agent") within five (5) days
from and after the date on which the City has signed this Agreement. This
Agreement constitutes the joint escrow instructions between the Parties' and a
duplicate original of this Agreement shall be delivered to the Escrow Agent upon
the opening of the escrow. Escrow to close within 30 days of the City's execution
of this Agreement. The Parties' agree to execute such escrow instructions as the
Escrow Agent shall reasonably require in connection with the opening and
administration of the Escrow, provided that all such escrow instructions shall be
consistent with the terms of this Agreement and any modifications to this
Agreement mutually agreed upon by Tenant and City.
The Parties agree to split escrow fees 50 percent each. City agrees to pay cost of
any transfer taxes, recording fees, cost of title insurance, document preparation
f=ees, incidental to the conveying of said real property to City.
All Inclusive Settlement Agreement
Page 2 of 9
Such real property taxes, if any, on said real property for the fiscal year within
which said real property is conveyed to Tenant as are unpaid at the time of said
conveyance shall be cleared and paid in accordance with the provisions of
Section 4986 of the Revenue and Taxation Code of the State of California. City
shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation
Code of the State of California for that portion of property taxes on said real
property for said fiscal year which have been paid prior to the date the deed
conveying said real property to Tenant is recorded which is allocable to that
portion of the fiscal year which begins on the date the deed conveying said real
property to Tenant is recorded and made uncollectible if unpaid by reason of
Section 4986 of the Revenue and Taxation Code of the State of California. All
unpaid taxes on said real property for any and all years prior to the fiscal
1'. Payment of Purchase Price.
Tenant agrees to use the proceeds it would be entitled to under paragraph la
towards the purchase price of the Surplus Property. Tenant agrees to deposit the
remainder of the purchase price in the stun of FORTY NINE THOUSAND
FOUR HUNDRED EIGHTY TWO AND NO1100 DOLLARS ($49,482) in the
Escrow with the Escrow Agent within TEN (10) days from and after the date on
which the City has signed this Agreement, and the Escrow Agent is hereby
authorized to pay the same to City upon and after:
Conveyance of said Surplus Property by City to Tenant as hereinabove
provided;
Delivery to Tenant a policy of title insurance as hereinabove provided;
Recordation of the Grant Deed conveying said Surplus Property to Tenant.
g Possession. City agrees to deliver to Tenant, quiet and peaceful possession of
said Surplus Property, conditional upon Bristol Drug Co. vacating the lower first
floor of the building, located on Property. Tenant agrees to indemnify, defend and
hold the City harmless from and against any claim, action, suit, proceeding, loss,
cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorneys' fees), resulting from Bristol Drug Co.
occupancy as it relates to the Surplus Property.
h. Vacating Date. Tenant agrees to vacate Property on or before June 30, 2011.
i. Payment of the consideration referenced in section 1 of this ASA, shall constitute
full satisfaction of any and all of City's obligations to compensate Tenant.
J As a matter of record, the compensation paid to Tenant in accordance with this
ASA shall be proportioned in the following amounts: Relocation benefits
shall equal $128,000. Payment for any loss of furniture, fixtures and equipment,
All Inclusive Settlement Agreement
Page 3 ol'9
P
bonus value, improvements to realty, business goodwill, and/or severance
damages shall equal $172,000.
?. Release
a. Tenant, on behalf of itself, its 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 Tenant now has or
may in the future have against City arising from the acquisition of the Acquired
Property, including, but not limited to, trade fixtures, furniture and equipment,
leasehold interests, and claims for loss of business goodwill, bonus value (if any)
and/or severance damages (if any), including claims from vendors, independent
contractors, subtenants now and forever.
b. No Party, nor any Agents, nor any related entities, to this ASA have made any
statement or representation to any other Party regarding any fact relied upon in
entering into this ASA, 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 ASA, except as is expressly stated in this ASA.
Each Party to this ASA has made such investigation of the facts and law
pertaining to this ASA, 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.
3. Attorney's Fees
fn the event of litigation relating to this ASA, the prevailing party shall be
entitled to reasonable attorneys' fees and costs.
4. Indemnity By Tenants
Tenant shall 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 Tenant of any provision of this ASA, or the falsity of any
representation or warranty made by Tenant contained in this ASA.
5. Entire Agreement
This ASA contains the entire Agreement of the Pal-ties hereto pertaining to the subject
matter discussed herein, and supersedes any prior written or oral agreements between
them concerning the subject matter contained herein. This ASA may be modified only
by a writing executed by the Parties hereto.
All Inclusive Settlement Agreement
Page 4 or 9
7
6. Partial frtvalidity
In the event that any term, covenant, condition or provision of this ASA 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.
7. Waiver
The provisions of this ASA may be waived, altered, amended or repealed, in whole or
in part, only upon the written consent of all Parties to this ASA. The waiver by one party
of the duty of performance by the other Party of any provision in this ASA shall not
invalidate this ASA, nor shall it be considered a waiver of any rights or remedies
available to the non-breaching Party of this ASA.
8. Headings
The headings, subheadings and numbering of the different sections of this ASA are inserted
for convenience only and shall not be considered for any purpose in construing this ASA.
9. Governing Law
The rights and obligations of the parties hereto shall he 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, and to any legal
limitations on the power of the signatories to bind non-signatories to this ASA, this
ASA 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.
I L Necessary Acts
Each Party to this ASA 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
ASA.
12. Advice Of Counsel
Each Party hereto, by its execution of this ASA, represents to every other Party that
it has reviewed each term of this ASA with its counsel and hereafter no Party shall
deny the validity of this ASA on the ground that the party did not have advice of
counsel. Each Party to this ASA has had the opportunity to receive independent
legal advice with respect to the advisability of entering into and being bound by this
ASA and with respect to the meaning of California Civil Code 5 1542.
All Inclusive Settlement Agreement
Page 5 oP9
V
13. Parties Have Not Transferred Right Or Claims
The PLu-ties 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 ASA.
14. Authority To Execute This Agreement
Each Party executing this ASA represents that it is authorized to execute this ASA. Each
Party executing this ASA on behalf of an entity, other than an individual executing this
ASA on his or her own behalf, represents that he or she is authorized to execute this ASA
on behalf of said entity.
15. Construction
Each Party has cooperated in the drafting and preparation of this ASA. In any construction
or interpretation to be made of this ASA, or of any of its terms, conditions and/or
provisions, the same shall not be construed against any party.
16. Notices
All notices, requests, demands and other communications required or permitted to be
given under this ASA 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
To Tenant: Raul Torres
Clinica Medica San Miguel
c/o Law Offices of Nick Mosich
2204 E. Fourth St., #100
Santa Ana, CA 92705
All Inclusive Settlement Agreement
Page 6 of' 9
17. Counterparts
This ASA 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 Pal-ties.
IN WITNESS WHEREOF, the Pau-ties have executed this All Inclusive Settlement Agreement as of the
date first written above.
TENANT:
Clinica Medica San Miguel
By: Date
Its:
CITY OF S 'N''A AN
By: Date: Z- l/ 241-0-- -
David N. Ream
City Manager
ATTEST:
By:
Maria D. Huizar
Clerk of the Council
Date:_ 4112671 ZOzI 20t-0---
APPROVED AS TO FORM:
Joseph W. Fketetdr 11
City At'fora`y
By: =41` _
Jost Sande3val
Chii f Assistant City Attorney
All Inclusive ScUlement Agreement
Page 7 of 9
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL "A"
That portion of Lot 1 of Block B, Goldsmith's Addition to the Town of Santa Ana, in the
City of Santa Ana, County of Orange, State of California, per map filed in Book 31,
Page 23 of Miscellaneous Records of Los Angeles County, California, described as
follows:
Commencing at the intersection of a line parallel with and 63.00 feet southerly of the
centerline of Santa Ana Boulevard (formerly Fourth Street) with a line parallel with and
90.00 feet westerly of the centerline of Bristol Street, as said streets are shown on said
Goldsmith's Addition; thence northeasterly along the bisector of a line perpendicular to
said centerline of Santa Ana Boulevard and a line perpendicular to said centerline of
Bristol Street, North 45°33'02" East, 21.00 feet; thence southeasterly and perpendicular
to said bisector, South 44°26'58" East, 0.24 feet to the intersection with a line which is
parallel with and 75.00 feet westerly of the centerline of said Bristol Street, said
intersection being the True Point of Beginning; thence southerly along said parallel line,
South 00°37'40" West, 116.67 feet to the southerly line of said Lot 1; thence westerly
along said southerly line, North 89°31'36" West, 7.00 feet to the southwesterly corner of
said Lot 1; thence northerly along the westerly line of said Lot 1, North 00°37'40" East,
123.67 feet to the intersection of said westerly line of Lot 1 with last said perpendicular
line; thence South 44°26'58" East, 9.89 feet to the True Point of Beginning.
Containing 841 square feet, more or less.
All as shown on Exhibit "B", attached hereto and by this reference made a part hereof.
Subject to all Covenants, Rights, Rights-of-Way and Easements of record, if any.
Prepared by me, or under my direction on
SNP` LAND
? s
Raym?Jverra., LS 8324 0??`'?J RIVE?9 GPI
Expires 12/31/11 o
* PLS 6324
EXP. 12-31-11
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EXHBIT "A"
I
LOT1'1,CBLOCK B PARCEL "A"
M.R. 31/23 841 SQ FT
-?-- N89'31'36"W
o SANTA ANA o L6 BOULEVARD
NE CORNER
(formerly Fourth Street) N89'31'36"W LOT 1, BLOCK B kt LAND
r 52.0' M.R. 31/23
L 4 RI VE,?
o 0 30 0 ? y
(D
?O rh --j- _ 7.0' T. P. 0. B. ° PLS 8324
CC) r') , 0 075' "_ is
N J EXP. 12-31-11 Q
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PARCEL p?? o N N I o N. T. S. )
Li w
C:) CD
DETAIL - NTS
C M Z
SW CORNER o i? co Z i?
LOT 1, BLOCK B
Qj?? M.R. 31/23 z o a SANTA ANA BL.
7.0' 45.0'
30-?1 NW CORNER
LOT 1
?? 7.0' N89'31'36"W _
14 T. P. 0. B.' c
52.0' 36 ORNER
I?\\? 007-1 3023 LOTE1 C, BLOCK B Li J L21 O
?Q M.R. 31/23 O O 13 w z
1? oU J CID
75.00'
75' o m 7.0'
90.00'
N NOTE P. 0. C.
WILY LINE OF STREET IMPROVEMENTS PER
IMPROVEMENT PLAN #1-024-D5, DATED 1955, DETAIL - NTS
FILED IN THE CITY OF SANTA ANA'S CENTRAL FILES.
SANTA ANA BL.
0 o NW CORNER o
L6 LOT 1 `r
- <i N00'37'40"E
-?- N89'31'36"W w 1.34'
THIRD STREET CD ?Q T. P. 0. B. Z
LINE DATA o N J ° o
L1= N44"26'58W, 1.9' L4= N44'26'58"W, z Z
L2=N44"26'58"W, 9.7' L5=N45'33'02"E, 21.00'
L3=N44'2G'58"W, 0.2' L6=N89'31'36"W, '1.3' 7 0'
EXHIBIT "B>,
SAWTA ANA
A.P. NO. 007-183-24
PP' W? 1 SKETCH TO ACCOMPANY
PA??'GE', LEGAL DESCRIPTION
EXHIBIT "B"
LEGAL DESCRIPTION
PARCEL "A"
Lot 17 of Block B, Goldsmith's Addition to the Town of Santa Ana, in the City of
Santa Ana, County of Orange, State of California, per map filed in Book 31, Page 23 of
Miscellaneous Records of Los Angeles County, California.
Containing 6,500 square feet, more or less.
PARCEL "B"
That portion of Lot 18 of Block B, Goldsmith's Addition to the Town of Santa Ana, in
the City of Santa Ana, County of Orange, State of California, per map filed in Book 31,
Page 23 of Miscellaneous Records of Los Angeles County, California, lying westerly of a
line parallel with and 75.00 feet westerly of the centerline of Bristol Street, as said street
is shown on said Goldsmith's Addition.
Containing 875 square feet, more or less.
All as shown on Exhibit "B", attached hereto and by this reference made a part hereof
Subject to all Covenants, Rights, Rights-of-Way and Easements of record, if any.
Prepared by me, or under my direction on
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RI V6,,, sG?,
Raymond J. ivera, PLS 8324 0 9 0
Expires 12/31/11
* PLS 8324
0P. 12-31-11
f OF
EXHIBIT "B"
NW CORNER
LOT 1, BLOCK B
M.R. 31/23
N89'31'36"W -
o SANTA ANA BOULEVARD
(formerly Fourth Street)
O
n
75'
NE CORNER
LOT 1, BLOCK B LAND
M.R. 31/23 , RIVE SG
CD
* PLS 8324
EXP. 12-31-11
° 1o\ 1 N o W ?fgTF OF CAS\F???\P 1O
) 1
coco rn I N ( N. T. S.
C\j CO T 30 F-
0 0 I Cn
NW CORNER o
LOT 18, BLOCK B o
o
?X? Z? M. R. 31/23 L2 10
0'
N89'31'36"W N89'31'36"W .
-
0 52.0' 52.0'
0\ ' '
PARCEL 3s. o 40
„B.' Y 7.0'
?? 0 10
0'
\
^?` PARCEL
N .
306
°
o Z o
O ,
N
00 00
75'
I
?'
0 007-183-23
??
? W
d ?0 o
SW CORNER -
o LOT 18, 304 Z n
o BLOCK B
0
°
z M.R. 31/23
0
7.0' o o
O
10.0' 40'
007-183-22 35.0'
0
N8931'36'"W
N89-31'36"W
52.0' 52.0' o
L
2
--- -
"'
?- N89 '31'36"W
T HIRD STREET
EXHIBIT "B" I
SANTA ANA A.P. NO. 007-183-22 & 23
SKETCH TO ACCOMPANY
?alc?"", LEGAL DESCRIPTION
NE CORNER
LOT 18, BLOCK B
M.R. 31/23
W O
C
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O m
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PARCEL "A"
6,500 SO FT
PARCEL "B"
875 SO FT
N1 NOTE:
WWLY R/W LINE PER 2988/221 O.R.
N2 NOTE
W'LY R/W LINE PER 2992/360 O.R.
SE CORNER
LOT 18, BLOCK B
M.R. 31/23
LINE DATA
L1=N00'37'40"E, 125.01'
L2= N89'31'36"E, 7.00'
,n