HomeMy WebLinkAboutPOMEROY, WILLIAM & GOCHICOA, AVELINO & STELLA 2 -2005
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DR. POMEROY, DDS AND A VELINO AND STELLA GOCHICOA
ACQUISITION SETTLEMENT AGREEMENT
This Agreement ("Agreement") is made on:Jiitll e ;;<{),~{)CI? by and between the City of
Santa Ana ("City"), Dr. Pomeroy ("Tenant") and Avelino and Stella Gochicoa
("Owner"). City, Tenant and Owner are hereinafter sometimes referred to collectively as
the "Parties".
RECITALS
A. Tenant operates a business commonly known as Dr. Pomeroy Dental Office, and
Owner operates a business commonly known as Dental Management Services. Both
businesses occupy the real property and improvements located at 117, 119, & 123 S.
Bristol, Santa Ana, CA, 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 and Owner a combined sum of
$279,270 (Two Hundred Seventy Nine Thousand Two Hundred Seventy
and 00/100 dollars).
(b) Said amount is to be paid to Tenant and Owner after both of the
Parties have executed this agreement and after Tenant and Owner have
completely vacated the Property and signed and delivered a Certificate of
Abandonment to the City.
(c) Tenant and Owner agree that receipt of full payment of the
consideration noted in section I (a) above will constitute full satisfaction
of any and all of City's obligations to Tenant and/or Owner,
without limitation, any obligations for loss of business goodwill, leasehold
interest, compensation for personal property.
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Settlement Agreement
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2. Vacation Date
Tenant and Owner shall vacate the Property on or before December 31, 2005,
unless a written extension is granted by the City.
3. Vacation of the Property
(a) As of the Vacation Date, Tenant and Owner shall have all its
removable personal property, trade fixtures, furniture and equipment
removed from the Property.
(b) Upon the Vacation Date, Tenant hereby transfers any right, title and
interest in the Property, the Lease and fixtures and equipment remaining
on the Property to City, and warrants all to be free and clear from any liens
or encumbrances, including any refrigerants or any other toxic or
hazardous materials, which shall have been removed and disposed of in
accordance with applicable regulations.
4. Conveyance ofInterest in Real Property and Improvements Pertaining to Realty
a) Tenant hereby warrants and certifies that Tenant is not 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 sigoed
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 oflmprovements 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
"
.
Settlement Agreement
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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 117, 119, &
123 S. Bristol, Santa Ana, CA. Recordation of any documents through
this transaction is authorized by Tenant, if necessary and proper.
5. Release
(a) Tenant and Owner, 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 of
their rights, claims, demands, actions or causes of action for payment for
loss of business goodwill, leasehold interests and compensation for
personal property, as related to the Property
(b) This release is intended as a full and complete release and discharge
of any and all such claims that Tenant and Owner 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 and Owner intend 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 and Owner expressly waive all
rights under Section 1542 of the Civil Code of the State of California,
which 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 and Owner acknowledge 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
and Owner agree 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
and Owner 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
Settlement Agreement
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(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. Attorney's Fees
In the event of litigation relating to this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs.
7. Indemnification
Tenant and Owner shall indemnity, defend and hold City harmless from and
against any claims, demands, liabilities, losses, judgments, expenses and
attorneys' fees resulting from the breach by Tenant or Owner on any provision of
this Agreement or the falsity of any representation or warranty made by Tenant or
Owner, 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.
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 ofthis Agreement.
Settlement Agreement
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II. 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 assigrnnent 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. Necessary 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.
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
Settlement Agreement
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17. Authoritv 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/Owner: L. Eugene Hallsted
Attorney at Law
10101 Slater Avenue, Suite 103
Fountain Valley, CA 92708
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.
Settlement Agreement
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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
as ofthe date first written above.
FOR: Dr. William Pomeroy, DDS
~ent ffices
~liampom
FOR: Dental Management Services
1Jlental Offices
'l
Stella Gochic
::y OF S^tt:;J;c2.
David N. Ream
City Manager
Patricia E. Healy
Clerk ofthe Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
Tax ill Number
Date
Tax ill Number
Date
Tax ill Number
Date
Dated
,
.
.
.
Settlement Agreement
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EXHIBIT" A"
PARCEL 1:
ntH PORTION OF LOT I OF TRACT NO. 90S, AS SHOWl' ON A MAP RECORDED G BOOK 32, PAGE 16
OF M!SCELLA1>'EOUS MAPS, RECORDS OF ORA.NGE COU/-,'TY, CALlFORN!A, DESCRIBED AS
FOLLOWS:
BEGf><'NLNG AT A POr.-.'T G THE WESTERLY LNE OF SAID LOT I, DlSTk'\'T THEREON 60 FEET
SOUTHERLY OF THE SOUTHWEST CORNER OF LOT 2 OF SAID TRACT NO. 905; THENCE EASTERLY
PARALLEL WITH THE SOUTHERLY L[\iE OF SAID LOT 2, 118.60 FEET; THENCE SOUTHERLY
PARALLEL WITH THE WEST LINE OF SAID LOT I, 75 FEET TO THE NORTHEAST COR.."'ER OF LAND
CONVEYED TO IDA A. PARKS BY DEED RECORDED SEPTEMBER 17, 1947LN BOOK 1555, PAGE 168 OF
OFFICIAL RECORDS; THENCE WESTERLY ALONG THE NORTH LINE OF SAID LAND C01>VEYED TO
PARKS, 118.60 FEET TO A pOr...T [\i THE WEST LNE OF SAID LOT I; THENCE NORTH ALONG THE
WESTERL Y LGE OF SAID LOT 1,75 FEET TO THE POl1>'T OF BEGINNGG.
EXCEPTING THE WEST 10 rEET OF SAID LA!-.1l AS DEEDED TO THE CITY OF SA1>TA ANA BY DEED
RECORDED DECEMBER 20. 1951 IN BOOK 2266, PAGE 243 OF OFFICIAL RECORDS.
ALSO EXCEPTING THE NORTH 10 FEET THEREOF.
PARCEL 2:
THAT PORTION OF LOT I OF TRACT NO. 90S, AS SHOWl' ON A MAP RECORDED IN BOOK 32. PAGE 16
or MISCELLANEOUS MAPS. RECORDS OF ORANGE COlfl','TY. CALIFORNIA, IlEING MORE
PARTICULARLY DESCRII3ED AS FOLLOWS:
IlEG[',,,ING AT THE SOUTHWESTERLY CORNER OF LOT 2 OF SAlD TRACT; THENCE SOUTHERLY
ALO<'iG THE WESTERLY LINE OF LOT I, A DISTANCE OF 135 FEET TO THE TRUE POI?'<'T OF
BEGr.-."ING; THE/'.'CE EASTERLY AND PARALLEL WITH THE SOUTHERLY LINE OF SAID LOT 2, A
DISTANCE OF 118.60 FEET; THE<'iCE SOUTHERLY AND PARALLEL WITH THE WESTERLY LINE OF
SAID LOT I, A DISTANCE OF 45 FEET TO A POr...T IN THE NORTHERLY LINE OF WALl-ovr STREET, AS
SHOW/'.' OC; THE MAP OF SAID TRACT; THENCE WESTERLY ALO<'iG THE NORTHERLY LINE OF
WALl-ovr STREET, A DISTANCE OF 118.60 FEET TO A POf><'T N THE WESTERLY Lf><'E OF SAID LOT I;
THEi'o'CE 1'.'0RTHERL Y. A DISTA"CE OF 45 FEET TO THE TRUE POr.-.TOF BEG[',,,Th'G.
EXCEPT THE \VESTERL Y 10 FEET COiWEYED TO THE Cln' OF SA?>.!A ANA BY DEED RECORDED
SEPTEMBER 20,1951 G BOOK 2231, PAGE 608 OF OFFICIAL RECORDS.
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Settlement Agreement
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EXHIBIT "B"
IMPROVEMENTS PERTAINING TO REAL TV
117,119 & 123 S. BRISTOL STREET, SANTA ANA, CA
(NOTINCULDED IN FEE APPRAISAL)
DATED NOVMENBER 17,2003
OUANITY
1
DESCRIPTION
Air Compressor, De Vilbiss Pro Air, 6.5 HP, 80 gallon
1
Lot 11." copper tubing to each chair
2
Vacuum pumps, water cooled, est. 1 HP with piping to chair
1
Lot compressed air & water piping to 6 chairs
1
Stand, wood, wall mount
1
Lot wall counter, 8' shelf, area for piping air, vacuum & water,
25 If plus 15 to 18 If in concrete floor