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HomeMy WebLinkAboutAMBRIZ, VIRGINIAINSURANCE NOT REQUIRED WORK MAY PROCEED CITY CLERK DATE: JUN 0 3 2024 N-2024-177 Project: Warner Avenue Improvement Project (Oak St. to Grand Ave.) - Phase 2 APN: 016-214-12 Business Owner: Virginia Ambriz Mommy Vicky's Daycare SETTLEMENT AND LOSS OF BUSINESS GOODWILL AGREEMENT AND GENERAL RELEASE (Mommy Vicky's Daycare, 2246 S. Cedar Street, Santa Ana, CA 92707) THIS SETTLEMENT, AND LOSS OF BUSINESS GOODWILL AGREEMENT AND GENERAL RELEASE (Mommy Vicky's Daycare, 2246 S. Cedar Street, Santa Ana, CA 92707) ("Agreement") is made and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California ("City"), and Virgina Ambriz ("Business Owner") doing business as Mommy Vicky's Daycare ("Business") for the settlement of any and all claims of Business relating to the impacts of the Warner Avenue Improvement Project (Oak St. to Grand Ave.) - Phase 2 on the business goodwill or leasehold interest of Business. City, Business and Business Owner may be referred to below collectively as the "Parties". This Agreement is effective on the date it is fully executed by the Parties ("Effective Date"). RECITALS A. City is acquiring the real property located at 2246 S. Cedar Street, Santa Ana, CA 92707, and identified as Orange County Tax Assessor's Parcel Number(s) 016-214-12 ("Property") in connection with the Warner Avenue Improvement Project (Oak St. to Grand Ave.) -Phase 2 ("Project"). The Property is owned by Virginia G. Ambriz, an unmarried woman. The Property is more particularly described on EXHIBIT "A" attached hereto and incorporated herein by this reference. B. Specifically, the City is acquiring the full fee interest (collectively "Fee Interest") on the Property. City has negotiated and fully executed purchase of the Property from Virginia G. Ambriz, Agreement A-2022-237, which was approved on December 13, 2022. The instant Agreement relates only to the Business and does not in any way modify the prior Agreement for purchase of the Property Fee Interest. C. Business utilizes approximately 50% of the interior and exterior of the Property and operates a home based childcare on the premises. D. The City and Business wish to enter into this Agreement to set forth the terms of settlement of any and all claims of Business in connection with the impact to Business's leasehold interest in the Property and any loss of business goodwill that Business claims or may claim pursuant to Code of Civil Procedure Section 1263.510 in connection with the City's acquisition of the Fee Interest and the construction of the Project. NOW, THEREFORE, in consideration of the above Recitals and mutual promises, covenants and other conditions set forth herein and to minimize the litigation expenses, costs, and attorneys' fees of the Parties in connection with the City's acquisition of the Fee Interest on the Property and the impact of the acquisition and Project on the Business and the leasehold interest of Business, City and Business agree as follows: 1. TOTAL JUST COMPENSATION. The "Total Just Compensation" that the City will pay to Business, payable in cash through this Agreement, as the total consideration for the impact of the City's acquisition of the Fee Interest on the Property and construction of the Project on the leasehold interest of Buyer in the Property and the loss of business goodwill of Business shall be the sum of: FIFTY THOUSAND DOLLARS AND NO CENTS ($50,000.00) Nothing herein shall be construed as a sale by Business to the City of Business or its assets 2. RECORDING. Recordation of any documents delivered through this Agreement is authorized, if necessary or proper. 3. CERTIFICATION OF OWNERSHIP. Business Owner hereby warrants and certifies under penalty of perjury that Business Owner is the owner of the Business operated on 2246 S. Cedar Street, Santa Ana, CA 92707. 4. DISMISSAL OF EMINENT DOMAIN PROCEEDING. Business Owner hereby consents to the full or partial dismissal of any eminent domain proceeding that the City has or may file for the condemnation of any portion of the Fee Interest in the Property and waives any claims for just compensation, costs, attorneys' fees, damages and deposits in said proceeding, or any claim of Business that Business may claim in such proceeding in connection with the acquisition of any portions of the Fee Interest on the Property, the interests of Business in and to any portion of the Fee Interest, leasehold interest of Business, and loss of business goodwill whatsoever that might arise out of the filing of such proceeding, whether or not such claim is specifically identified herein. 5. CLOSING; PURCHASE PRICE ADJUSTMENTS. "Closing" means the closing by the satisfaction of the conditions and payment as required by this Agreement. Subject to the satisfaction of the conditions precedent below, Closing is to occur Ninty (90) days after the Effective Date of this Agreement. The Closing of this transaction will take place when the City issues payment to Business of the Total Just Compensation set forth in Section 1 above. The City will coordinate with Business the transmittal of the payment to Business at least three (3) business days before the Closing. 6. FULL AND COMPLETE SETTLEMENT AND RELEASE. Business hereby acknowledges that the compensation paid to Business through this Agreement constitutes the frill and complete settlement of any and all claims of Business against the City, by reason of Buyer's acquisition of the Fee Interest on the Property in connection with the Project, and the impacts of said acquisition or construction of the Project on the leasehold interest of Business, any and all claims of Business in connection with the leasehold value and loss of business goodwill under Code of Civil Procedure Section 1263.510, and all claims in inverse condemnation, precondemnation damages, lost profits, loss of rent, and any and all other claims that Business may have, whether or not specifically mentioned here, relating directly or indirectly to the acquisition by the City of the Fee Interest on the Property and..the impact of said acquisition and construction of the Project on the leasehold interest of Business and loss of business goodwill of Business. The Parties agree, however, that the payment by the City for the benefit of Business of the Total Just Compensation pursuant to this Agreement excludes any relocation benefits and assistance to which Business may be entitled. Business, on behalf of Business, its successors and assigns, hereby fully releases the City, its officers, board of trustees, representatives, and employees, from any and all claims and causes of action by reason of any damage which has been sustained, or may be sustained, as a result of (i) City's purchase of the Fee Interest on the Property, or any preliminary steps thereto or (ii) impact of the acquisition of any portions of the Fee Interest on the interest of Business in and to any portions of the Property (iii) the construction and/or operation of the Project, including, without limitation, its construction, reconstruction, development, redevelopment, operation, maintenance, repair, existence and use. 7. ACKNOWLEDGMENT CONCERNING CIVIL CODE SECTION 1542. Business hereby acknowledges that Business has consulted or had an opportunity to consult with legal counsel regarding, and represents and warrants that it is familiar with, California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." Business acknowledges that, with respect to the acquisition by the City of the Fee Interest on the Property and the construction and/or operation of the Project, Business may have sustained damages, losses, costs and/or expenses which are presently unknown and unsuspected, and such damages, losses, costs and/or expenses which may have been sustained may give rise to additional damages, losses, costs and/or expenses in the future. Nevertheless, Business hereby represents, warrants, acknowledges and agrees that this Agreement has been negotiated and agreed upon in light of that situation, and hereby waives, to the maximum legal extent, any rights accruing to it under said Section 1542 or any other statute or judicial decision of similar effect with respect to the releases set forth in Section 7. Initials of Business Owner: _ y2t. Initials of Business: 8. WARRANTIES, REPRESENTATIONS, AND COVENANTS OF BUSINESS. Business hereby warrants, represents, and/or covenants to the City that Business is not aware of any other party that claims any interest in Business, its leasehold interest in connection with the Property, or the business goodwill of Business. 3 a. To the best of Business' knowledge, there are no actions, suits, material claims, legal proceedings, or any other proceedings affecting the Business at law, or in equity before any court or governmental agency, domestic or foreign. b. To the best of Business' knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument to which Business may be bound. C. Until the Closing, Business shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 8 to not to be true as of the Closing, immediately give written notice of such fact or condition to the City. MISCELLANEOUS. a. Required Actions of City and Business. City and Business agree to execute such additional instruments and documents necessary and to diligently undertake such actions as may be required in order to consummate the transaction contemplated herein and shall use commercially reasonable efforts to accomplish the Closing in accordance with the provisions of this Agreement. b. Authorization. City and Business, on behalf of themselves and each and all of their individual and collective agents, representatives, attorneys, principals, predecessors, successors, assigns, administrators, executors, heirs, and beneficiaries, hereby represent and warrant that they are duly authorized to sign this Agreement on behalf of the respective Party. C. Counterparts • Copies. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Except as required for recordation, the Parties shall accept copies of signatures, including, without limitation, electronically transmitted (for example, by e-mail, facsimile, PDF or otherwise) signatures. d. Captions. Any captions to, or headings of, the articles, sections, subsections, paragraphs, or subparagraphs or other provisions of this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision of this Agreement. e. No Obligations to Third Parties. Except as otherwise expressly provided in this Agreement, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the Parties to, any person or entity other than the Parties. f. Exhibits. The Exhibits attached to this Agreement are hereby incorporated into this Agreement by this reference. g. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision of this Agreement. -h. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of California. Any and all legal actions brought to enforce or interpret the terms and provisions of this Agreement shall be commenced exclusively in a court of competent jurisdiction in the County of Orange. L Compromise. This Agreement is a compromise in settlement of pending or possible litigation between the Parties to the Agreement and shall never be treated as an admission by the City for any purpose of liability or as to value of any property interest or claim. j. Successors andAssigns. This Agreement and any right or obligation herein and therein, shall inure to the benefit of the successors and assigns of the Parties. k. Ratification. This Agreement is subject to the approval and ratification by the City's governing body or its delegated representative. 1. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected. in. Construction. This Agreement will be liberally construed to effectuate the intention of the Parties with respect to the transaction(s) described herein. In determining the meaning of, or resolving any ambiguity with respect to, any word, phrase or provision of this Agreement, neither this Agreement nor any uncertainty or ambiguity herein will be construed or resolved against either Party (including the Party primarily responsible for drafting and preparation of this Agreement), under any rule of construction or otherwise, it being expressly understood and agreed that the Parties have participated equally or have had equal opportunity to participate in the drafting thereof. n. Survival of Covenants. Notwithstanding the releases contained herein and agreement concerning this transaction, all the covenants, rights and obligations created under and pursuant to this Agreement shall survive the execution of the Agreement, the releases contained herein, and the close of this transaction. o. Entire Agreement. This Agreement contains the entire agreement between both Parties, neither Party relies upon any warranty or representation not contained in this Agreement. E IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date(s) set forth below next to their respective signatures. [Signatures on the following pages] SIGNATURE PAGE TO SETTLEMENT AND LOSS OF BUSINESS GOODWILL AGREEMENT AND GENERAL RELEASE Date: MV09 CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California ((�� By: Ti�� / Alvaro Nunez Acting City Manager ATTEST: APPROVED AS TO FORM: Date: May 9, 2024 By: Kyk C. Nellesen Assistant City Attorney Date: G-i)a) 20241 RECOMMENDED FOR APPROVAL: By: tiA a.� 4 �L --Iabil Saba "Executive Director Public Works Agency SIGNATURE PAGE TO SETTLEMENT AND LOSS OF BUSINESS GOODWILL AGREEMENT AND GENERAL RELEASE Date: -5— F-.2(j.2, y BUSINESS: Ambriz Child Day Care C Name: Title: 0Ee) nifr 2 EXHIBIT A Legal Description of Property [APN: 016-214-12] THE LAND REFERRED TO HEREIN IS SITUATED IN COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 20 IN BLOCK "C" OF TRACT NO. 1541, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP THEREOF RECORDED IN BOOK 45, PAGE(S) 48 AND 49 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Assessor's Parcel Number: 016-214-12