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HomeMy WebLinkAboutC-4120 - Settlement Agreement and Release for Newport Nursing and Rehabilitation Center (OHI Asset)U 0 0 0-4120 '0 SETTLEMENT AGREEMENT AND RELEASE (Tenant Interest) This SETTLEMENT AGRE T AND RELEASE (this "Agreement ") is entered into effective the day of 2008, by and between GHC of Newport Beach, LLC ( "Tenant "), HOAG MEMORIAL HOSPITAL PRESBYTERIAN ( "Hong "), and the CITY OF NEWPORT BEACH ( "City ") upon the terms and subject to the conditions set forth herein. Each of Tenant, Hoag, and City are sometimes hereinafter referred to as a "Party" and collectively as the "Parties ". RECITALS: A. Tenant operates a business commonly known as Newport Nursing and Rehabilitation Center, and is the occupant of real property and improvements owned by OI-II Asset (CA), LLC, A Delaware Limited Liability Company ( "OHI ") and located at 1555 Superior Avenue, Newport Beach, CA ( "Property "), more specifically described and shown on that Traffic Signal Maintenance Easement attached as "Exhibit I ", and that Temporary Construction Fasement attached as "Exhibit 2." Tenant is the owner of certain personal property (yard improvements and operating efficiencies) currently located on the Property. B. The City is purchasing, or has purchased portions of the Property upon'which Tenant's operation is situated for the widening and improvement of Superior Avenue (Project), including the installation of a traffic signal near the southeast corner of the Property. C. The Project will require the reconfiguration and re- striping of the southeasterly most parking area as per the Project plan provided to Tenant. D, Tenant has been notified by the City that Tenant may be eligible for certain tenants' rights including an apportionment of the just compensation due OHI, relocation assistance benefits, payments for impacted and owned furniture, fixtures and equipment, and loss of business goodwill, if eligible. E. Tenant, Hoag, and City all desire to settle any and all claims to which Tenant may be entitled to in regards to the acquisition of the Traffic Signal Maintenance Easement and 'Temporary Construction Easement for the Project. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing and of the promises and representations set forth herein, it is hereby agreed to by and between the Parties that: Selllernenl Agrcemew and Release (Conroiercial Tenant) Page 1 OF 501004499.2 0 0 Agreement and Right of Entry (a) Tenant hereby disclaims and releases any interest and/or right to any proposed compensation offered and to be paid to OHl for the Traffic Signal Maintenance Easement and the Temporary Construction Easement. (b) Tenant hereby grants to the City a right of entry over those portions of the Tenant's remaining leasehold premises, reasonably necessary to facilitate the construction of the Project in the manner proposed, and to facilitate the construction of the improvements set forth in Section 2 (b) below. 2. Consideration. (a) Provided that Tenant has not breached the representations and warranties in Section 3 of this Agreement, Hoag agrees to enter into a five (5) year lease agreement as of the effective date of this Agreement with Tenant (or modify the lease agreement which currently exists) providing for 25 parking spaces in Hoag's parking structure located at 500 -540 Superior Avenue for $850 per month, representing the same monthly rental price as is now being paid by Tenant for the 10 spaces in the parking structure. The rental rate will be reviewed and subject to adjustment at the end of five years and will be applicable to include all 25 spaces. The lease (or amendment) will provide that Tenant may use 20 spaces on the roof for employee parking and Tenant's visitors can park in the marked visitor parking spaces on the ground floor. Visitors parking on the ground floor will be bound by the time limit posted for visitor parking (likely 2 hour limit). (b) Provided that Tenant has not breached the representations and warranties in Section 3 of this Agreement, City agrees to restripe Tenant's southeasterly parking lot to include four vehicular spaces including one space specifically designated for ambulance parking. Considerations were made for access to existing electrical panels and for the installation of parking bumpers. A schematic plan of the restriped lot was provided to Tenant and will be made a part of City's construction specifications. (c) Tenant understands and agrees that the consideration set forth in this Section 2 constitutes full satisfaction for and is in lieu of any and all obligations of Hoag and City to Tenant for the acquisition of the Traffic Signal Maintenance Easement and Temporary Construction Easement including, without limitation, just compensation for real or personal property interests, improvements affixed to the land, fixtures or equipment, severance damages, relocation benefits and assistance payments, loss of business goodwill, lost profits, loss of income, pre - condemnation damages, inverse condemnation, interest, attorneys' fees, appraisal or other expert fees, costs and /or damages caused by the acquisition of the Traffic Signal Maintenance Easement and Construction Easement. Tenant's Representations and Warranties. Settlement Agreement and Release (Cornmaciar Tenant} Page 2 of 7 501004499.2 0 0 (a) Tenant represents and warrants that it is the lawful occupant of the Property. (b) Tenant represents and warrants that (i) to its actual knowledge, no other entity or person has any right, title or interest in the claims released in Section 4 hereof, and (ii) Tenant has not assigned, transferred, conveyed or otherwise disposed of any of the claims released in Section 4 hereof, and Tenant will not make any such assignment, transfer, conveyance or other disposition of such claims subsequent to the date of this Agreement. (c) Tenant represents and warrants that Tenant has received no notice from any governmental entity of any violation or alleged violation by Tenant of any environmental or other law, ordinance, regulation or judicial order affecting the Property, and Tenant has not released any hazardous substances on or under the Property. (d) Tenant acknowledges that Hoag and City have relied and are relying upon the above representations and warranties in entering into this Agreement. 4. Release. (a) Tenant, in consideration of the Consideration set forth in Section 2 hereof and the mutual promises made in this Agreement, releases and discharges Hoag, members of its Board of Trustees, and the employees, agents, representatives, assigns, insurers, attorneys, and successors in interest of Hoag, the City, the members of the Newport Beach City Council, and the employees, agents, representatives, assigns, insurers, attorneys, and successors in interest of the City, OHI and 0141's members, owners and representatives (collectively the "Released Parties ") from any and all claims that Tenant has ever had, now has, or may in the future have against any of the Released Parties arising from or relating to the acquisition of the Traffic Signal Maintenance Easement and Construction Easement, including, without limitation, just compensation for real or personal property interests, improvements, furniture, fixtures or equipment, severance damages, relocation assistance payments, loss of business goodwill, lost profits, loss of income, pre - condemnation damages, inverse condemnation, interest, attorneys' fees, appraisal or other expert fees, and claims for injunctive or declaratory relief or for relief by way of writ of mandate. (b) In making this release, Tenant waives any and all rights Tenant may have under Section 1542 of the California Civil Code, 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." (c) Tenant acknowledges that it may hereafter discover damages, facts or law different from or in addition to those which it now believes to be true with respect to the release settlement Agreement and Release (Commercial Tenaiu) Page 3 of 1 501004499.2 0 0 of claims and which, if known, would materially affect its decision to enter into this Agreement. Tenant agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or law or its discovery thereof. Tenant shall not be entitled to any relief in connection therewith, including, without limitation, any damages or any right or claim to set aside or rescind this Agreement. ff& Tenants' Initials (d) None of the Released Parties has made any statement or representation to the other regarding any fact relied upon in entering into this Agreement, and no Patty relies upon any representation or promise of any Released Party or any other person in executing this Agreement. Tenant shall be responsible for obtaining its own tax advice with respect to any income and/or property tax consequences of this Agreement. (e) This Agreement does not constitute any admission of liability by either Party to the other Party. Attorneys' Pees. If any Patty hereto brings any action or files any proceeding to declare the rights granted herein or to enforce any of the terms of this Agreement or as a consequence of any breach by another Party of its obligations hereunder, then the prevailing Party in such action or proceeding shall be entitled to have its reasonable attorneys' fees and litigation expenses paid by the losing Party, including the attorneys' fees, and out -of- pocket expenses of prosecuting or defending an appeal or enforcing or collecting the judgment. 6. Indemnity by Tenant. Tenant shall indemnify, defend and hold the Released Parties, and each of them, harmless from and against any and all claims, third party claims, damages, demands, liabilities, losses, judgments, expenses and attorneys' fees and/or costs arising from or relating to 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. 7. Entire Agreement. This Agreement contains the final and entire agreement of the Parties and supersedes any prior written or oral agreements between them, if any, concerning the subject matter of this Agreement. 8. Partial Invalidity. If any provision of this Agreement, or the application thereof, is held to be illegal, invalid or otherwise unenforceable, then the validity of the remaining provisions, and the application SOaleme'd Agreement end Release (Commercial Tenant) Page 4 of 7 501004499.2 thereof, shall be deemed severable and shall remain enforceable and valid to the fullest extent permitted by law. 9. No Waiver. The waiver by the non - breaching Party of the breach of any provision of this Agreement by the breaching Party shall not be deemed a waiver of any subsequent breach whether of the same or another provision of this Agreement. Any term, covenant, condition or provision herein can be waived only by a written waiver signed by the Party against whom such waiver is to be asserted. 10. 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. It. Successors In interest. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their successors and assigns. 12. 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 effectuate the intent of the Parties and carry out the terms of this Agreement. 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. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and, when taken together with the other signed counterparts, shall constitute but one Agreement, which shall be binding upon and effective as to all of the Parties. 15. 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. 16. Time. Selllcmcm Agrooma and Release (Coinmemial Tenant) Page 5 of 7 501004499,2 0 Time is of the essence in this Agreement. 17. Third -Party Beneficiaries The Released Parties are the only third -party beneficiaries of this Agreement, and each of the Released Parties shall have the right and power to enforce this Agreement as if it were a party hereto. 18. Amendments in Writing. The provisions of this Agreement may not be amended or altered except by a written instrument fully executed by each of the Parties hereto. 19. Context and Construction. When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural, and the masculine shalt include the feminine and neuter and vice versa. Whenever a reference is made herein to a particular Section of this Agreement, it shall mean and include all subsections and subparts thereof unless otherwise specified. The headings of the different sections of this Agreement are inserted for convenience and for reference only and shall not be considered for any purpose in construing this Agreement. 20. Notices. All notices hereunder shall be in writing and shall be delivered personally, sent by facsimile or sent by registered or certified United States mail or a nationally recognized, overnight courier service, postage prepaid, and addressed as shown next to the names on the signature block of this Agreement. Notices may be given by telephone facsimile transmission, provided that the facsimile machine provides a record of the transmission. Notices delivered personally or by facsimile shall be deemed received on the date of personal delivery or facsimile transmission; notices sent by United States mail or overnight courier shall be deemed delivered on the following business day. Addresses may be changed by notice given in writing to the other Party. (Signatures on following page) SCalemenl Agreement and Rcicau (Commercial Tenant) Page 6 of 7 501004499.2 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. TENANT: Mailing address of Tenant r GHC of Newport Beach, LLC /% c/o Newport Nursing and Rehabilitation /" Center; Attn: Ryan Case By: / _ 1555 Superior Ave Newport Beach, CA 92663 With Copy to: Marissa Binkerd, Esq. 20371 Irvine Avenue, Suite 210 Santa Ana Heights, CA 92707 Mailing Address of Hoag One Hoag Drive, Building 44, Suite 330 Newport Beach, CA 92658-6100 Mailing Address of City 3300 Newport Boulevard Newport Beach, CA 92663 Attn: City Attorney Settlement Agreement and Release (Commercial Tenant) Page 7 of 7 501004499.2 I40AG: Hoag Memorial Hospital Presbyterian By: J n r. zner S or Vice President & Chief Financial Officer By: CITY: City By: r1dr "'10410 zarl ma., ez /1'