HomeMy WebLinkAboutC-5034 - Abatement Agreement, 6000 West Coast Highway, #A1 [Owner-David Jalali]^'I 1
ABATEMENT AGREEMENT
This Abatement Agreement (the "AGREEMENT ") is entered into by and among
Brian Rene Ventura, in his personal capacity and as Chief Executive Officer ( "CEO ") of
Network Patient Center, and Joshua Sheng, in his personal capacity and as Chief
Financial Officer ( "CFO ") of Network Patient Center and Network Patient Center, a
Califomia corporation (collectively, "OPERATOR ") and the City of Newport Beach, a
charter city and California municipal corporation (hereinafter the "CITY "). This
AGREEMENT is made effective as of December 5, 2011(the "EFFECTIVE DATE ").
OPERATOR, OWNER and CITY are hereinafter collectively referred to as "PARTIES."
This AGREEMENT is entered into in reference to the following Recitals that the
PARTIES agree are accurate to the best of their knowledge and belief.
For the purposes of this AGREEMENT only, the following capitalized terms shall
have the following meanings:
A. "CITY" shall mean the City of Newport Beach, a charter city and California
municipal Corporation, and its City Council, boards and commissions, officers and
employees.
B. "OPERATOR" shall mean collectively Network Patient Center, a California
Corporation, Brian Rene Ventura, in his personal capacity and as CEO of Network
Patient Center, and Joshua Sheng, in his personal capacity and as CFO of Network
Patient Center.
C. "PROPERTY" shall mean the property located at 6000 West Coast
Highway, # Al, Newport Beach, California.
D. "OWNER" shall mean the owner of the PROPERTY, David Jalali, as
Trustee of the David Jalali Living Trust 2004 dated December 3, 2004.
E. "ACTION" shall mean any issue related or referring to OWNER and/or
OPERATOR's use of the PROPERTY, or any other property within the CITY, for
purposes of selling and /or distributing marijuana in violation of the Newport Beach
Municipal Code ( "NBMC ") or administrative citations, civil or criminal actions
contemplated by the City to obtain compliance with any of the provisions of the NBMC.
F. "CLAIMS" shall mean all claims, charges, liabilities, damages, obligations,
costs, expenses (including without limitation attorneys' fees), rights of action and causes
of action of any kind, legal or equitable, whether known or unknown, anticipated or
unanticipated, past, present or future, contingent or fixed, existing, claimed to exist or
which may hereafter exist under the United States Constitution, the California
Constitution, applicable common law, contract, tort or other federal, state, local, or
6000 West Coast Highway Abatement
municipal law or regulation, relating in any way to facts and circumstances that give rise
to any ACTION.
G. "NBMC" shall mean the Newport Beach Municipal Code.
H. "EFFECTIVE DATE" shall mean the date of the last signature necessary
to execute this AGREEMENT. .
I. "ABATEMENT PERIOD" shall mean that period of time extending from the
EFFECTIVE DATE of this AGREEMENT to no later than December 30, 2011.
RECITALS
A. The most recent authorized use of the PROPERTY is for "Commercial
Visitor - Serving" ( "CV ") use. NBMC section 20.20.010 (Commercial Zoning Districts)
establishes the purposes of the CV district. The CV district is intended to provide for
areas appropriate for accommodations, goods, and services intended to serve primarily
visitors to the City. NBMC section 20.20.020 lists land uses that are allowed by right,
allowed when a specific permit is obtained, and prohibited uses. Additionally, land uses
that are not listed in the applicable table contained in NBMC section 20.20.020, or are
not shown in a particular zoning district are not allowed, except as otherwise provided
by NBMC section 20.12.020(E).
B. The use of the PROPERTY to sell and /or distribute marijuana is not
contained among the list of land uses in NBMC section 20.20.020 that are allowed by
right or allowed when a specific permit is obtained and is therefore a prohibited use.
The use of the PROPERTY to sell and/or distribute marijuana is a violation of NBMC
sections 20.12.020(E), 20.16.030, 20.20.020 and 20.52.100.
C. Prior to commencing operations and selling and /or distributing marijuana,
OPERATOR was informed on at least two occasions by CITY Code Enforcement
Officers that the use of the PROPERTY to sell and /or distribute marijuana is prohibited
under the NBMC.
D. During investigations conducted by CITY Code Enforcement Officers and
Police Officers it was determined that OPERATOR was selling and distributing
marijuana from the PROPERTY in violation of NBMC section 20.16.030, 20.20.020 and
20.52.100.
E. The violations of the NBMC contained in Recital D are a nuisance per se
pursuant to NBMC sections 1.04.020 and 10.50.020(1) and City of Riverside v. Inland
Empire Patient's Health and Wellness Center, Inc (2011) 2011 WL 5386590 (Cal.App. 4
Dist.), 11 Cal. Daily Op. Serv. 13,799, 2011 Daily Journal D.A.R. 16, 413.
F. On November 1, 2011, the CITY's Community Development Director,
Kimberly Brandt, issued a Notice of Violation ( "NOV") to OPERATOR and OWNER. A
true and correct copy of the NOV is attached hereto as Exhibit A and incorporated
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herein by reference. The NOV ordered that OPERATOR and OWNER immediately
cease any use of the PROPERTY not allowed by right under the NBMC. The NOV
further advised that the failure to immediately comply and correct the violations will
cause the City to take enforcement action.
G. Following the receipt of the NOV, OPERATOR contacted CITY's Code
Enforcement Supervisor, Matt Cosylion, to request a meeting with the CITY to discuss
the NOV. A meeting was then held on November 22, 2011 between CITY and
OPERATOR. During this meeting, OPERATOR acknowledged that OPERATOR was,
and currently is, using the PROPERTY to sell and /or distribute marijuana in violation of
the NBMC.
H. On November 22, 2011, OWNER sent OPERATOR a letter informing
OPERATOR that the lease contract dated April 15, 2011 requires OPERATOR to
comply with all local laws and obtain all proper permits and OWNER requested that
OPERATOR comply with CITY's laws and requirements.
I. OPERATOR has agreed to cease the use of the PROPERTY to sell
and /or distribute marijuana, or any other use that is in violation of the NBMC, on or
before December 30, 2011.
J. OPERATOR has agreed not to use any other property or land within the
CITY in violation of the NBMC.
NOW, THEREFORE, to obtain compliance with the NBMC on the part of
OPERATOR and in consideration of the CITY refraining from pursuing any ACTION
against OPERATOR during the ABATEMENT PERIOD, such civil and /or criminal
remedies, and /or imposing such administrative fines as permitted by state and local law
for OPERATOR's violations of the NBMC, the PARTIES agree as follows:
SETTLEMENT
A. REPRESENTATIONS AND WARRANTIES.
The PARTIES hereby represent and warrant that:
(a.) The foregoing Recitals are true and correct.
(b.) That should OPERATOR fail to comply with any of the terms
of this AGREEMENT that CITY may immediately commence an ACTION to seek
OPERATOR's compliance with the NBMC. OPERATOR hereby expressly, knowingly,
and voluntarily waive any and all rights to oppose a motion by the CITY that a court
issue an injunction requiring OPERATOR to comply with the terms of this AGREEMENT
and cease use of the PROPERTY to sell and /or distribute marijuana, or any other use
that is in violation of the NBMC.
6000 West Coast Hiphwav Abatement
(c.) The CLAIMS disposed of by this AGREEMENT have not
been assigned, transferred, released or granted, or purported to assign, transfer,
release or grant, any CLAIMS disposed of by this AGREEMENT.
(d.) None of the CLAIMS released hereunder will in the future be
assigned, conveyed, or transferred in any fashion to any other person and /or entity.
2. The PARTIES hereby represent and warrant that they have the
power and authority to enter this AGREEMENT.
3. OPERATOR agrees they shall indemnify and defend and hold the
CITY harmless from any and all liability, loss, expense, damage, or claims which may
arise directly or indirectly from or in connection with any allegation that the warranties
and representations made by OPERATOR in this section are false and /or for the breach
of any of the terms and conditions of this section.
4. Nothing herein shall be deemed as a waiver or release of the
warranties, representations, rights and obligations as set forth in this section.
B. TERMS OF SETTLEMENT.
1. OPERATOR shall complete all actions necessary to cease any use
of the PROPERTY for the sell and /or distribution of marijuana as well as any other use
that is not allowed by right under the NBMC on or before December 30, 2011.
2. On or before January 3, 2012, OPERATOR shall schedule an
inspection of the interior and exterior of the PROPERTY with CITY's Code Enforcement
Division to confirm that the PROPERTY is not being used to sell and /or distribute
marijuana and is not being used for any purpose that is not allowed by right under the
NBMC.
3. After December 30, 2011, PROPERTY shall be utilized for those
uses allowed by right under the NBMC unless and until all necessary permits and
approvals are obtained from the CITY in compliance with the NBMC.
5. The PARTIES will use their best efforts and cooperate as
necessary in performing and implementing this AGREEMENT in good faith.
6. OPERATOR acknowledges and agrees that their failure to comply
with the terms of this AGREEMENT may result in the CITY bringing an ACTION against
OPERATOR to obtain compliance with this AGREEMENT.
D. GENERAL RELEASE.
1. General Release and Discharge of Claims by OPERATOR. Upon
the EFFECTIVE DATE of this AGREEMENT, OPERATOR, for itself and all of its
predecessors, successors, assigns, representatives, attorneys, employees, officers, and
agents, do hereby fully and forever release and discharge the CITY, and all of its
6000 West Coast
Abatement
predecessors, successors, assigns, representatives, attorneys, agents, elective and
appointive council members, council boards, commissions, commissioners, officers,
employees, of and from any and all actions, CLAIMS, demands, rights, damages, costs,
litigation expenses, attorneys fees, expert fees, consultant fees, other fees, interest, lost
profits and earnings, diminution in the value of the business, loss of past, current, future
and subsequent business and patronage, the value of the leasehold interest, the loss of
goodwill, any inverse condemnation claims, any claims for the taking of property,
diversion of resources, any other damages, costs or expenses arising from any and all
actions of the CITY and compensation of any nature whatsoever, which they have or
may hereafter accrue, including without limitation, any and all known and unknown,
foreseen and unforeseen claim, damage and injury.
2. Waiver of Claims. It is understood and agreed that OPERATOR's
release set forth herein extends to all CLAIMS of every kind, nature and description
whatsoever, known or unknown, suspected or unsuspected and any and all rights under
the provisions of Section 1542 of the Civil Code of California or under any comparable
statute of any other jurisdiction. OPERATOR expressly acknowledges that they are
familiar with and expressly waive and relinquish every right or benefit they have or may
have under the provisions of Section 1542 of the Civil Code of California that reads 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.°
3. Representations and Warranties. OPERATOR represents and
warrants to the other that, except as otherwise expressly provided in this AGREEMENT,
they are not relying on any representation whatsoever, whether express or implied,
including without limitation, representations of fact or opinion made by or on behalf of
the PARTIES herein.
E. MISCELLANEOUS PROVISIONS.
1. Local California Law to Aoply. This AGREEMENT shall be
governed and interpreted in accordance with the laws of the State of California. Each
party hereto agrees that the laws of the State of California shall apply and that any
action brought hereunder shall be subject to the laws and statutes of the State of
California. The venue of any legal challenge to this AGREEMENT shall be the Superior
Court of the State California in and for the County of Orange.
2. Integrated Agreement. This AGREEMENT, and the exhibits hereto,
contains the entire understanding and agreement between the PARTIES and the terms
and conditions contained herein shall inure to the benefit of, and be binding upon, the
heirs, representatives, successors and assigns of each of the PARTIES. No other
representations, covenants, undertakings, or other prior or contemporaneous
6000 West Coast Highway Abatement
agreements, oral or written, respecting such matters, which are not specifically
incorporated herein, shall be deemed in any way to exist or bind any of the PARTIES
hereto. The PARTIES acknowledge that this AGREEMENT has been executed without
reliance upon any such promise, representation, or warranty not contained herein.
3. Modification. No supplement, modification or amendment of this
AGREEMENT shall be binding useless executed in writing by the effected PARTIES.
No waiver of any of the provisions of this AGREEMENT shall be deemed to constitute a
waiver of any other provision whether or not similar, nor shall waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
PARTIES making the waiver.
4. Binding on Successors. This AGREEMENT and the covenants and
conditions contained herein shall obligate, bind, extend to and inure to the benefit of the
PARTIES and each of their respective successors in interest, including, but not limited
to, their administrators, executors, owners, partners, officers, directors, trustees,
shareholders, legal representatives, assignees, attorneys, successors, and agents or
employees. Prior to assigning any rights or obligations OPERATOR has with respect to
this AGREEMENT, OPERATOR shall obtain written confirmation and deliver to CITY
that such assignee shall be bound by the terms of this AGREEMENT and that such
Assignee shall also be entitled to receive the benefits of this AGREEMENT.
5. Representation. The PARTIES affirmatively represent they have
been represented by counsel of their own choosing or have been allowed the
opportunity to consult with counsel of their choosing and have elected not to. They
have read this AGREEMENT and have had the terms used herein and the
consequences thereof explained by their attorneys of choice.
6. Construction. This AGREEMENT shall not be construed against
any Party, but shall be construed as if all PARTIES jointly prepared this AGREEMENT.
Any uncertainty and ambiguity shall not be interpreted against any one Party.
Language in all parts of the AGREEMENT shall be in all cases construed as a whole
according to its very meaning.
7. Attorneys' Fees and Costs. The PARTIES to this AGREEMENT
will bear their own costs and attorneys' fees incurred until the EFFECTIVE DATE of this
AGREEMENT. Should an ACTION be brought by CITY to enforce or interpret any part
of this AGREEMENT, the prevailing party is entitled to recover attorneys' fees and
related costs.
8. Gender Neutral. Whenever in this AGREEMENT the context may
so require, the masculine, feminine and neutral gender shall be each deemed to include
the other and the singular and the plural shall refer to one another.
9. Counterparts. This AGREEMENT may be executed in duplicate
counterparts, each of which shall be deemed an original and all of which shall constitute
an agreement to be effective as of the date of signing. Further, signatures transmitted
6000 West Coast Highway Abatement Agreement
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electronically or by facsimile shall be deemed to have the same weight and effect as an
original signature. The PARTIES may agree that an original signature will be
substituted at some later time for any electronic or facsimile signature.
10. Headings. The headings included in this AGREEMENT are for
convenience only and do not limit, alter, or affect the matters contained in this
AGREEMENT or the paragraphs they encaption.
11. Invalid Clause May Be Severed. If any provision, clause, or part of
the AGREEMENT is adjudged illegal, invalid or unenforceable, the balance of this
AGREEMENT shall remain in full force and effect.
12. Survival of Warranties and Representatives. The warranties and
representations made in this AGREEMENT are deemed to survive the execution of this
AGREEMENT are deemed to survive the execution of this AGREEMENT.
13. BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT
THEY HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR LEGAL
COUNSEL, OR HAVE FREELY, VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY
ELECTED NOT TO SEEK LEGAL COUNSEL, ABOUT ITS EFFECT, AND THAT THEY
FULLY UNDERSTAND IT.
[SIGNATURES TO FOLLOW ON NEXT PAGES]
6000 West Coast Highway Abatement Agreement
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IN WITNESS WHEREOF, the PARTIES have caused this AGREEMENT to be
executed as of the dates indicated below and their attorneys, if applicable, have
indicated their approval as to form by their respective signatures in the appropriate
spaces below.
OPERATOR:
Network Patient Center, a California corporation
'�� k' I
Bddh Rene Ventura, as an individual and Date
as the CEO of Network Patient Center
i4.1slll
Sheng, as an-hidiv ' u I and as Date
of Network Patient ;,e ter
CITY OF NEWPORT BEACH
A charter City and California municipal corporation
Dave iff, City Manager
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: 9 ! I
9�
Aar . H rp, City Attorney
Date
ATTEST:
Date: �jr -! p
[END OF SIGNATURES]
6000 West Coast Highway Abatement Agreement
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7AGE
LEFT L"OLP. NK
IN"FLAMIALLY
6000 West Coast Highway Abatement
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
On 4j . a011 before me, 0L ") t dVptary Public,
personally appeared = l who proved to me on the basis
of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he /sh6h*y�executed the same in his{herd eir
authorized capacity(os` , and that by his�tWir signature on the instrument the -
person, or the entity upon behalf of which the person(a) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
� h {OUL HAMEEO KHAHAPII
Signature N Comm 9 0 , y
�Cl `L C't •_ My Con, EEm On. 17. 2011
.J` (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
On be Y,�z4 before mejjAi)>j V.Notary Public,
personally appeared� 5i�6-A1(, who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowled ed to me that he a /t executed the same in his/ it
authorized capacity(ie, and that by his/ it signature on the instrument the
person, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. ODUL HAMEEO HHANANI
1918940
xoTARP exr vueu 0WITVORNU
Signature WCo E .o ".11 4
(Seal)
6000 West Coast Highway Abatement Agreement
10
CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On December 15, 2011 before me, M Locey, Notary Public, personally appeared David
A. Kiff who proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
M.LOCEY
Commission k 1864431
WITNESS my hand and official seal. Notary Public • Calltornla
Orange County
MY Comm. Expires Oct 7, 2013 +
(SEAL)
Notary Public in and for a e
OPTIONAL INFORMATION
Title or Type of Document:
Abatement Agreement — 6000 West Coast Highway
Date of Document:
December 5, 2011
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