Loading...
HomeMy WebLinkAboutCHOUMAS, CHRIS & CANDANCE A-2005-042A ":'j, ii'i J ,..\ IIJ '. ,-, --:l LJ-05' ',ICC' ",,---r Page I of9 O:Pw~ (f. lli1JiltS) APOLLO MUFFLER & RADIATOR SERVICES, INC. ACQUISITION SETTLEMENT AGREEMENT This Agreement ("Agreement") is made on L,~ -tJ.5" by and between the City of Santa Ana ("City"), and Chris and Candace Chou mas ("Tenant"). City and Tenant are hereinafter sometimes referred to collectively as the "Parties". RECITALS A. Tenant operates a business commonly known as Apollo Muffler & Radiator Services, Inc. and is the occupant of real property and improvements located at 1249 W. First Street, Santa Ana, CA 92701, more specifically described in Exhibit "A", Legal Description, attached hereto and made a part hereof, which shall be referred to herein as the "Property". Tenant is not the owner of the real property. B. The Property is located within the Project Area for the Bristol Street Widening from Pine Street to Third Street and the City intends to acquire the Property for a public use. C. The Parties' rights and obligations with regard to the acquisition of the Property by City are in dispute. The Parties desire to establish their respective rights and obligations with regard to the acquisition of the Property by City upon the terms and conditions set forth below. NOW, THEREFORE, Parties hereto agree as follows: I. Consideration (a) City agrees to pay to Tenant the sum of $63,270 (Sixty-Three Thousand Two Hundred Seventy Dollars). (b) Said amount is to be paid to Tenant after both of thc Parties have executed this agreement and after Tenant has completely vacated the Property and has signed and delivered a Certificate of Abandonment to the City. ( c) Tenant agrees that receipt of full payment ofthe consideration noted in section I (a) above will constitute full satisfaction of any and all of City's obligations to Tenant, including, without limitation, any obligations for loss of business goodwill, leasehold interest, compensation for personal property, Improvements Pertaining to Realty as described in Exhibit "B", and/or damages of any nature. Choumas Settlement Agreement Page 2 of9 2. Vacation Date Tenant shall vacate the Property on or before December 31,2005. 3. Vacation of the Property (a) As of the Vacation Date, Tenant shall have removed all its removable personal property, trade fixtures, furniture and equipment from the Property except for those items described in Exhibit "B", attached hereto and made a part hereof. (b) Upon the Vacation Date, Tenant hereby transfers any right, title and interest in the Property, the Lease and the fixtures and equipment described in Exhibit "B" to City, and warrants all to be free and clear from any liens or encumbrances, including any refiigerants or any other toxic or hazardous materials, which shall have been removed and disposed of in accordance with applicable regulations. 4. Convevance ofInterest in Real Property and Improvements Pertaining to Realty a) Tenant hereby warrants and certifies that Tenant is the owner of certain Improvements Pertaining to Realty, attached to this agreement as Exhibit "B", and made a part hereof. b) Tenant hereby warrants and certifies that no document has been signed by or on behalf of the Tenant for the purpose of creating any lien, encumbrance or security interest in any of the items of Improvements Pertaining to Realty included in this Agreement, and that the Tenant does not know of any claim of lien or encumbrance therein, EXCEPT: for instance, a) trust deeds secured by said items, duly recorded; b) personal property taxes. c) Tenant shall execute and hand City a Bill of Sale, conveying all of Tenant's interest in and to those certain items of Improvements Pertaining to Realty shown in Exhibit "B", free and clear of all recorded and unrecorded encumbrances, liens, assessments, leases and taxes, on or before the Vacation Date. d) Tenant agrees to execute a Quitclaim Deed, within 30 days after both of the Parties have executed this agreement, in favor of City, relinquishing, releasing and forever quitclaiming all right, title and interest in and to the Choumas Settlement Agreement Page 3 of9 real property described in Exhibit "A", attached hereto and made a part hereof, as well as quitclaiming all interest in any Improvements Pertaining to said Realty in and on the property commonly referred to as 1249 W. First Street, Santa Ana, CA 92701. Recordation of any documents through this transaction is authorized by Tenant, if necessary and proper. 5. Release (a) Tenant for itself, its agents, assigns and related entities, fully releases, acquits and discharges City, and the officers, directors, employees, attorneys, accountants, other professionals, insurers and agents of City (collectively "Agents") and all entities related to City, from all rights, claims, demands, actions or causes of action which Tenant now has or may have against City arising from the acquisition of the Property, the Lease, or otherwise, including, but not limited to business goodwill from the City. (b) This release is intended as a full and complete release and discharge of any and all such claims that Tenant mayor might have against City and its agents or related entities arising from the facts and circumstances described above in this Agreement. In making this release, Tenant intends to release City, its related entities and Agents from any liability of any nature whatsoever for any claim or injury or for 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. Tenant expressly waives all rights under Section 1542 of the Civil Code of the State of California, which Tenant understands provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. (c) Tenant acknowledges that it may hereafter discover facts or law different from or in additional to those which it now believes to be true with respect to the release of claims. Tenant 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. Tenant shall not be entitled to any relief in connection herewith, including, but not limited to any damages or any right or claim to set aside or rescind this Agreement Choumas Settlement Agreement Page 4 of9 (d) No party nor any Agents nor any related entities have made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and each party expressly states it does not rely upon any statement, representation or promise of any other party or any party's Agent or related entities in executing this Agreement, except as is expressly stated in this Agreement. Each party to this Agreement has made such investigation of the facts and law pertaining to this Agreement, and of all other matters pertaining thereto, as it deems necessary, and has consulted with legal counsel concerning these matters. 6. Attomey's Fees In the event of litigation relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 7. Indemnity By Tenant Tenant shall indemnify, defend and hold City harmless from and against any claims, demands, liabilities, losses, judgments, expenses and attorneys' fees resulting from the breach by Tenant of any provision of this Agreement or the falsity of any representation or warranty made by Tenant contained in this Agreement. 8. Entire Agreement This Agreement contains the entire agreement of the parties hereto, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. 9. Partial Invaliditv In the event that any term, covenant, condition or provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. Choumas Settlement Agreement Page 5 of9 10. Waiver The provisions of this Agreement may be waived, altered amended or repealed, in whole or in part, only upon the written consent of all parties to this Agreement. The waiver by one party of the performance of provision of this Agreement shall not invalidate this Agreement, nor shall it be considered as a waiver of any subsequent breach of the same or other provisions of this Agreement. 11. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience only and shall not be considered for any purpose in construing this Agreement. 12. Governing Law The rights and obligations of the parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 13. Successors In Interest Subject to any restrictions against assignment contained herein, and to any legal limitations on the power of the signatories to bind non-signatories to this Agreement, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estate, heirs, legatees, Agents and related entities of each of the parties hereto. 14. Necessarv Acts Each party to this Agreement agrees to perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 15. Advice Of Counsel Each party hereto, by its execution of this Agreement, represents to every other party that it has reviewed each term of this Agreement with its counsel and hereafter no party shall deny the validity of this Agreement on the ground that the party did not have advice of counsel. Each party has had the opportunity to receive independent legal advice with respect to the advisability of making this Agreement and with respect to the meaning of California Civil Code Section 1542. Choumas Settlement Agreement Page 6 of9 16. Parties Have Not Transferred Right Or Claims The Parties hereto each represent and warrant to the other party that they have not assigned, transferred or subleased to any third party any of the rights, claims, causes of action or items to be released or transferred which they are obligated to transfer or to release as part of this Agreement. 17. Authority To Execute This Agreement Each entity executing this Agreement represents that it is authorized to execute this Agreement. Each person executing this Agreement on behalf of an entity, other than an individual executing this Agreement on his or her own behalf, represents that he or she is authorized to execute this Agreement on behalf of said entity. 18. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 19. Notices All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall either be delivered in writing personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the party at its address 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 Souri Amirani 20 Civic Center Plaza M-36 Santa Ana, CA 92702 With copy to: To Tenant: Apollo Muffler & Radiator Services, Inc. Chris Chou mas 1249 W. First Street Santa Ana, CA 92701 Choumas Settlement Agreement Page 7 of9 20. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TE(J!~(%~ Coos Choumas d!-.3 -cJj--- Date CITY OFi:1A ANA, / - /" BY: ~<rLc/Jl2, David N. Ream City Manager ATTEST: &C!~~ Patricia E. Healy Clerk of the Council Dated J- ~,3--CJ APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Choumas Settlement Agreement Page 8 of9 EXHIBIT "A" THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOT 211N BLOCK A OF THE BESSONETT TRACT AS SHOWN ON A MAP RECORDED IN BOOK 24, PAGE 73 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE SOUTH 40.00 FEET THEREOF. PARCEL 2: LOT 23 AND 25 IN BLOCK A OF THE BESSONETT TRACT AS SHOWN ON A MAP RECORDED IN BOOK 24, PAGE 73 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. EXCEPTING FROM SAID LOT 25 THE WESTERELY 10.00 FEET THEREOF, AS CONYEYED TO THE CITY OF SANTA ANA IN DEED RECORDED AUGUST 27, 1951 IN BOOK 2221, PAGE 272 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING FROM SAID LOTS 23 AND 25, THOSE PORTIONS DESCRIBED IN PARCELS 1, 2 AND 3 OF THE DEED TO THE CITY OF SANTA ANA RECORDED FEBRUARY 6, 1968 IN BOOK 8510, PAGE 907 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. Choumas Settlement Agreement Page 9 of9 EXHIBIT "B" IMPROVEMENTS PERTAINING TO REAL TV 1249 S. BRISTOL STREET, SANTA ANA, CA No. DESCRIPTION BUILDING EXTERIOR AND PAKING AREA MARKET VALUE 1 Painted Exterior, "Mufflers" approximately 34' long' x 4' high 1 Painted metal sign, ~'Mufflers" approximately 12' long x 3' high x 6' deep 1 Painted exterior "Radiator" approximately 12' high xl' wide 1 Painted exterior, "Catalytic Converters Catalizadores" approximately 20' long x 3' high 1 Painted exterior, "Catalytic Converters", approximately 10' high x 6' wide I Painted exterior, "Call 835-1777" approximately 18' long x 3' high 1 Painted exterior, "Servicio De Radiadores", approx. 15' long xl' high 1 Painted exterior, "Radiator" approximately 12' long x 3' high 1 Painted exterior, "Mufflers-Radiators", approximately 36' long x 3' high $ 240 $ 520 $ 20 $ 110 $ 10 $ 90 $ 30 $ 60 $ 190 $1,270 I Total Fixtnres and Immovable Eqnipment