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HomeMy WebLinkAbout25T - ACQUISITION SETTLEMENT 323 S BRISTOL STREETREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUN$ 2, 2008 TITLE: ACQIIISITION 3ETTL~NT AC3R$EMBNT FOR BRISTOL 3TRS$T LIQUOR AT 323 3. BRISTOL STRBET (PROJBCT 06-1500) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1g` Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Parks Family Liquor Inc., dba Bristol Liquor & Market in the amount of $565,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On March 6, 2006 the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority to fund Bristol Street improvements from McFadden Avenue to Pine Street. The improvements include widening of the street from four lanes to six, construction of landscaping in the parkways and the median islands, traffic improvements, drainage structures, sound walls, and other amenities as outlined in the Specific Plan. To accommodate the widening, the entire property at 323 S. Bristol was acquired on September 19, 2006 (Exhibit 1). The City's acquisition resulted in the displacement of Bristol Liquor & Market. The California Relocation Assistance Law requires the City to pay reasonable costs associated with the relocation of the displaced business. The settlement agreement with the business owners will authorize the purchase of the tenant's immovable fixtures and equipment, loss of business goodwill and relocation benefits, totaling $565,000. 25T-1 Acquisition Settlement Agreement For Bristol Street Liquor June 2, 2008 Page 2 BNVIROND~N'PAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89-01 approved by City Council in 1990. FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (account no. 59-553-6611). ames G. Ross Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: D J F ancisco Gutierrez Executive Director Finance & Mgmt. Services Agency 25T-2 MATCHLINE SEE BOTTOM RIGHT MCFADDEN AVENUE LEGEND WALNUT ST. SUBJECT PROPERTIES ACQUIRED PROPERTIES I MATCHLINE SEE ABOVE LEFT EXHIBIT 1 SANTA ANA ~ crn ~ TITLE PURCHASE AGREEMENT FOR P~ W A ^ AOENDA DATE 323 S. BRISTOL STREET ~vE z Zoos (PROJECT 06-1500) ~~~ i 25T-3 ACQUISITION SETTLEMENT AGREEMENT This Acquisition Settlement Agreement ("ASA") is entered into on 2008 between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and Parks Family Liquor Inc., dba Bristol Liquor & Market ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. City is the fee owner of 323 South Bristol Street, Santa Ana, California ("Property"). B. Tenant operates a business on the Property commonly known as Bristol Liquor & Market, and is the occupant of the real property and improvements located on the Property, more specifically described in Exhibit "A", Legal Description, attached hereto. C. The Property is located within the Area of the Bristol Street Widening Project from Pine Street to McFadden Avenue and City previously acquired the Property for a public use ("Project"). D. The Parties' rights and obligations with regard to Tenant's entitlement to relocation and other displacement benefits are in dispute. The Parties desire to establish their respective rights and obligations upon the terms and conditions as hereinafter set forth, and to resolve any and all disputes with regard to any and all of the compensation and/or other benefits to which Tenant is now, or may in the future, be entitled as a result of the acquisition of the Property by City. Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions of this ASA, the Parties agree as follows: Consideration a. City shall pay Tenant in accordance with the disbursement schedule referenced in section 1(b)&(c), below, the total sum of FIVE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($590,000.00) as total compensation for relocation assistance and any and all related expenses and claims to which Tenant may be entitled, including all loss of business goodwill, leasehold interests, security deposit (if any), personal property, improvements pertaining to realty, bonus value, severance damages, inventory and any and all other damages to which Tenant may be entitled as a result of City's acquisition of the Property for the Project. b. Upon execution of this ASA, City will process an initial payment to Tenant in the amount of FOUR HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($490,000.00) and a payment to Benjamin Kim in the amount of Acquisition Settlement Agreement 1 of 14 25T-4 TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) for expenses incurred in closing the business as more fully described in section 2(a)&(b) of this ASA. City will process a second payment to Tenant in the amount of SEVENTY FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) upon satisfactory evidence to City that the following conditions have been satisfied: Tenant has (1) vacated the Property, (2) executed and delivered to City a Certificate of Abandonment of the Property, (3) turned over all sets of keys to City or to its agents, (4) confirmed in writing to City that any and all hazardous materials have been removed from the Property in accordance with all applicable federal and state laws, ordinances and/or regulations and (5) the conditions identified in Section 2 of this ASA have been met. Each payment referenced in this paragraph shall be subject to offsets as described in section 4(a)(b)&(c), below. d. Tenant's receipt of full payment of the consideration referenced in section 1 (a)(b)&(c), above, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant relating to City's acquisition of the Property for the Project. e. As a matter of record, the compensation paid to Tenant in accordance with this ASA shall be proportioned in the following amounts: Relocation benefits shall equal TWENTY THOUSAND AND NO/100 ($20,000); Payment for any loss of furniture, fixtures and equipment, bonus value, improvements to realty, business goodwill, inventory and/or severance damages shall equal FIVE HUNDRED SEVENTY THOUSAND AND NO/100 ($570,000.00). 2. Inventorv a. Any and all inventory leftover after any reductions will be the responsibility of Benjamin Kim, who will ensure that the Property is left in a clean condition and that all remaining inventory is disposed or removed from the Property, which shall be accomplished no later than October 31, 2008. The City and its agents will provide full cooperation as necessary with the inventory liquidation process. Benjamin Kim will be responsible for obtaining a release of any and all financial interest in Tenants' settlement payment from Harbor Distributing, LLC, Southern Wine and Spirits of Southern California, Young's Market Company, Straub Distributing Company, Gallo Wine Company, Coca-Cola Bottling Company, The Pepsi Bottling Group, Frito-Lay, California State Lottery, and any other vendors, distributors or creditors with whom Tenant may have an account ("Creditors"). Any credit due to the Creditors shall be paid by Tenant from the initial settlement payment prior to release of the final settlement payment. b. Expenses incurred in connection with closing the business and inventory Acquisition Settlement Agreement 2of14 25T-5 handling, such as packing labor and materials, professional inventory company fees, security, storage and transportation, will be reimbursed by Tenant to Benjamin Kim upon receipt of the initial settlement payment described in Section l (b). 3. Liauor License Tenant agrees to transfer or assign liquor license 21-390015 to Benjamin Kim. 4. Failure to Vacate the existing building and other improvements from the Property a. Tenant shall vacate the Property not later than October 31, 2008 ("Vacate Date"). Tenant shall be liable for payment to City of a rental fee of TWO HUNDRED AND NO/100 DOLLARS ($200.00) for each and every day Tenant remains in possession of the Property beyond the Vacate Date, unless a written request for an extension, not to exceed sixty (60) days, has been submitted and subsequently approved by the City prior to the Vacate Date. Such request will not be unreasonably withheld for circumstances beyond control of Tenant which prevent occupancy of a relocation site. Any rental fees charged shall be proportionally deducted as an offset from the final payment to Tenant as described in section 1(c) above. Tenant may unilaterally choose to move prior to Vacate Date. b. As of the Vacate Date, if Tenant has not removed all of its inventory, moveable personal property from the existing building(s) and other improvements to the Property, Tenant authorizes City to remove said items at Tenant's sole cost and expense, which expense shall be deducted as an offset from the final payment as described in section 1(c), above. c. City owns the Property and Tenant will be obligated to pay monthly rent in the amount of ONE THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($1,200.00) beginning August 1, 2007 through May 31, 2008 (Vacate Date). Tenant shall adhere to the terms of the Non-Exclusive License Agreement (Attachment A). Any delinquent rent will be deducted from the final payment described in section 1(c) above. Tenant will not be obligated to pay monthly rent beyond May 31, 2008. Release a. Tenant, on behalf of itself, its agents, assigns and related entities, agrees to indemnify, fully release, acquit and discharge City, and the officers, directors, employees, attorneys, accountants, other professionals, insurers and agents of City (collectively "Agents") and all entities related to City, from any and all rights, claims, interests, demands, actions or causes of action which Tenant now has or may in the future have against City arising from the acquisition of the Property, including, but not limited to, trade fixtures, furniture and equipment, leasehold Acquisition Settlement Agreement 3of14 25T-6 interests, and claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any). b. No Party, nor any Agents, nor any related entities, to this ASA have made any statement or representation to any other Party regarding any fact relied upon in entering into this ASA, 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 ASA, except as is expressly stated in this ASA. Each Party to this ASA has made such investigation of the facts and law pertaining to this ASA, and of all other matters pertaining hereto, as it deems reasonable, necessary and/or appropriate, and has consulted with legal counsel concerning the matters contained herein. 6. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 7. Indemnity By Tenant Tenant shall indemnify, defend and hold harmless City from and against any and all claims, demands, liabilities, losses, judgments, expenses and attorney's fees resulting from the breach by Tenant of any provision of this ASA, or the falsity of any representation or warranty made by Tenant contained in this ASA. Entire Agreement This ASA contains the entire Agreement of the Parties hereto pertaining to the subject matter discussed herein, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. This ASA may be modified only by a writing executed by the Parties hereto. 9. PartialInvalidity In the event that any term, covenant, condition or provision of this ASA 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 ASA may be waived, altered, amended or repealed, in whole or in part, only upon the written consent of all Parties to this ASA. The waiver by one party of the duty of performance by the other Party of any provision in this ASA shall not invalidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this ASA. Acquisition Settlement Agreement 4of14 25T-7 11. Headinss The headings, subheadings and numbering of the different sections of this ASA are inserted for convenience only and shall not be considered for any purpose in construing this ASA. 12. Governin 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 ASA, this ASA 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. Necessar~Acts Each Party to this ASA 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 ASA. 15. Advice Of Counsel Each Party hereto, by its execution of this ASA, represents to every other Party that it has reviewed each term of this ASA with its counsel and hereafter no Party shall deny the validity of this ASA on the ground that the party did not have advice of counsel. Each Party to this ASA has had the opportunity to receive independent legal advice with respect to the advisability of entering into and being bound by this ASA and with respect to the meaning of California Civil Code § 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 sublet 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 ASA. 17. Authority To Execute This Agreement Each Party executing this ASA represents that it is authorized to execute this ASA. Each Party executing this ASA on behalf of an entity, other than an individual executing this ASA on his or her own behalf, represents that he or she is authorized to execute this ASA on behalf of said entity. Acquisition Settlement Agreement Sof14 25T-8 18. Construction Each Party has cooperated in the drafting and preparation of this ASA. In any construction or interpretation to be made of this ASA, or of any of its terms, conditions and/or 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 ASA 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 as 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 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Attention: Souri Amirani To Tenant: Jongyuk Park Bristol Liquor & Market To Tenant: Post-move 323 S. Bristol St. Santa Ana, California 92703 Acquisition Settlement Agreement 6of14 25T-9 IN WITNESS WHEREOF, the Parties have executed this Acquisition Settlement Agreement as of the date first written above. TENANT: Parks Family Liquor Inc., dba Bristol Liquor & Market By: Jongyuk Park By: Benjamin Kim CITY OF SANTA ANA: By: David N. Ream City Manager ATTEST: By: Date: , 2008 Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: By: Jose Sandoval Senior Assistant City Attorney Date 2008 Date 2008 Date: , 2008 Date , 2008 Acquisition Settlement Agreement 7of14 25T-10 EXHIBIT A LEGAL DESCRIPTION Lot 16 and 17 in Block "C" of Tract No. 610 in the City of Santa Ana, County of Orange, State of California, as per map recorded in Book l9, Page 12 of Miscellaneous Maps, in the Office of the County Recorder of said County. Except the West 10 feet thereof as conveyed to the City of Santa Ana, a Municipal Corporation, by deeds recorded September 12, 1951, in Book 2228, Page 522, of Official Records; and June 13, 1951, in Book 2200, Page 341, of Official Records. ASSESSOR'S PARCEL NUMBER: 008-231-29 Acquisition Settlement Agreement 8of14 25T-11 ATTACHMENT A NON-EXCLUSIVE LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into this day of 2008, by and between the City of Santa Ana, a public body, corporate and politic, herein referred to as "Licensor", Parks Family Liquor Inc. dba/Bristol Liquor & Market "Licensee". 1. ACKNOWLEDGEMENTS A. Upon Licensor owning the property and existing building located at 323 S. Bristol Street, Santa Ana, California (APN: 008-231-029) ["the License Area"]. Licensor desires to license use of said Area to Licensee. B. Licensee represents that it desires a License in order to use said License Area as a liquor store. 2. GRANT OF LICENSE a. Licensor grants to Licensee a personal, non-exclusive, revocable license ("License") to use the License Area as hereinabove described and shown in general in Exhibit "A," attached. hereto and incorporated herein by reference, for its use as a medical clinic and pharmacy. b. Licensee may not use the License Area for any other purpose or business, other than using it as Bristol Liquor & Market, without obtaining Licensor's prior written consent. c. Licensor will not be held responsible for loss of, or damage to, any personal property left on the License Area, or improvements made by Licensee in the License Area. d. This License is made subject and subordinate to the prior and continuing right of Licensor to use the property or the use of the public right-of--way. 3. DUTIES OF LICENSEE a. In exercising these rights, Licensee must use reasonable care and may not Un-reasonably increase the burden on the License Area. Licensee agrees that any use it makes of the License Area as specified herein shall be affected with all reasonable diligence and precaution to avoid damage to the land, property or personnel. b. Licensee agrees to conform to any reasonable requirements set forth by the Licensor related to the use of the License Area as Bristol Market and Liquor, as set forth by the Licensor during the course of this License. Acquisition Settlement Agreement 9of14 25T-12 c. Licensee will maintain the License Area in a neat, clean, sanitary and safe condition, to the satisfaction of Licensor, at the sole cost and expense of the Licensee. It should be maintained in a manner consistent with community standards which will uphold the value of the Property, in accordance with this Agreement, the Santa Ana Municipal Code and all other applicable local, state and federal rules, regulations and standards. d. Licensee shall be responsible for the payment of all charges in connection with utility services provided to the License Area, "utility services" shall include natural gas, electricity and sewer. e. Licensee shall not record, hypothecate, assign or attempt to record, hypothecate or assign this personal License. Any attempt by Licensee to record, hypothecate or assign this License shall automatically terminate this License Agreement and render this License void and invalid for all purposes. 4. REVOCATION Licensor may revoke this License, at will, upon thirty (30) days notice in writing to the Licensee. 5. NOTICES Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, to the addresses below: TO LICENSOR: City of Santa Ana Public Works Agency 20 Civic Center Plaza P.O. Box 1988 (M-36) Santa Ana, CA 92702 Attn: Souri Amirani TO LICENSEE: Jongyuk Park Bristol Liquor & Market 323 S. Bristol Santa Ana, California 92703 Acquisition Settlement Agreement 10 of 14 25T-13 6. TERMINATION OF OCCUPANCY a. Notwithstanding paragraph 5, this agreement will automatically terminate on April 30, 2008. b. Licensee accepts the License Area, in an "as is" condition. c. In the event Licensee fails, neglects or refuses to remove said personal property and their improvements and restore the License Area, such removal and restorations may be performed by Licensor, at the expense of Licensee, which expense Licensee agrees to pay to Licensor upon demand. d. Occupancy may be terminated by either party with 30 days written notice to the other party. 7. INSURANCE a. Licensee shall maintain commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence covering the License Area. Such insurance shall: (1) name the City of Santa Ana, its officers, agents, employees and volunteers as additional insureds; (2) be primary with respect to insurance or self-insurance programs maintained by the Licensor, and (3) contain standard separation of insureds provisions. b. Licensee shall, prior to and as a condition of exercising any rights under this License Agreement, (i) furnish properly executed certificates of insurance to the Licensor prior to exercising its rights under this License, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed or terminated except with 30 days prior written notice to the Licensor (ii) attach a completed and signed copy of the Licensor's "Additional Insured Endorsement" form, a copy of which is attached hereto as Exhibit "A," to the certificates of insurance noted above; (iii) maintain such insurance from the time the project first commences until completion of the project under this License; and (iv) replace such certificates for policies expiring prior to the termination of this License. 8. INDEMNITY Licensee shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person or damage to property, including property and employees, volunteers, officers or agents of Licensor or Licensee, and shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from all claims, demands, suits, actions or proceedings of any kind, and all costs and expenses, including but not limited to reasonable attorneys' fees, settlements or judgment, arising out of the construction, reconstruction, maintenance, presence, operation, use, removal or state of repair, of the License Area. Acquisition Settlement Agreement 11 of 14 25T-14 9. GOVERNING LAW This License shall be governed by and construed in accordance with the laws of the State of California. 10. ENTIRE AGREEMENT This License, together with all attachments hereto, constitutes the entire understanding and agreement of the parties. It supersedes any and all other agreements either oral or in writing between the parties hereto with respect to the terms set forth in this License and contains all the covenants and agreements between the parties with respect thereto. Each party to this License acknowledges that no representation, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, with respect to such services, which are not embodied herein, and that no amendment hereto shall be effective unless set forth in writing, approved by the Licensor and Licensee. 11. INDEPENDENT CONTRACTOR It is understood and agreed that Licensee, in the performance of this License, will be acting in a wholly independent capacity and not as agents, employees, partners, or joint venturers of the Licensor. This License does not create a tenancy of any nature whatsoever between the Licensor and Licensee. 12. ASSIGNMENT BY LICENSEE PROHIBITED In no event shall Licensee assign or transfer any of the rights conferred herein without the prior express written consent of the Licensor. 13. ATTORNEY FEES AND COSTS In the event that any action is instituted to enforce payment or performance under this Agreement, or otherwise in connection with this Agreement, the parties agree that the prevailing party shall be reimbursed by the other party for all costs and attorneys' fees incurred by the prevailing party in such action. 14. CONFLICT OF INTEREST No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. Acquisition Settlement Agreement 12 of 14 25T-15 The parties have executed this personal, non-exclusive, revocable License Agreement as of the date and year first written above. TENANT: Parks Family Liquor Inc. dba/Bristol Liquor & Market Jongyuk Park Title Tax Identification No. Date CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Senior Assistant City Attorney LICENSOR: PUBLIC WORKS AGENCY OF THE CITY OF SANTA ANA By: James Ross Executive Director APPROVED AS TO FORM: Joseph W. Fletcher City Counsel Jose Sandoval, Assistant City Attorney Dated LICENSEE: PARKS FAMILY LIQUOR INC. DBA: BRISTOL LIQUOR & MARKET By: Title: Acquisition Settlement Agreement 13 of 14 25T-16 EXHIBIT A ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702;, their officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza (M-36), Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to Countersigned by this endorsement form as a part of Named Insured Authorized Representative Acquisition Settlement Agreement 14 of 14 25T-17 25T-18