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HomeMy WebLinkAbout25E - AGMT - BIG O TIRES REQUEST FOR COUNCIL ACTION A CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: AUGUST 1, 2011 TITLE: APPROVED ? As Recommended ALL-INCLUSIVE SETTLEMENT ? As Amended Reading 1 s' AGREEMENT FOR 1211 WEST ? Ordinance on El Ordinance on 2 n n° Reading WARNER AVENUE (PROJECT NO. ? Implementing Resolution 091752) ? Set Public Hearing For ~ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached all-inclusive settlement agreement with Big O Tires, LLC in the amount of $250,000 subject to nonsubstantive 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 Warner Avenue to Seventeenth Street. As part of the street widening, the City is improving the intersection of Bristol Street and Warner Avenue. Measure M funding has been approved for the intersection widening for the amount of $3.182 million. To accommodate the widening of this intersection, the entire property located at 1211 West Warner Avenue was acquired in May 2010 (Exhibit 1). This acquisition also necessitates the relocation of the tenant in the building. The tenant, Big O Tires, has agreed to a settlement agreement for relocation benefits. The compensation amounts are the appraised values prepared by an appraiser licensed by the State of California. ENVIRONMENTAL 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. 25E-1 All Inclusive Settlement Agreement for 1211 West Warner Avenue (Project No. 091752) August 1, 2011 Page 2 FISCAL IMPACT Funds are appropriated in the Measure M Select Street Construction Fund (accounting unit 03217660-66220) and Select Street Construction Fund (accounting unit 05917661-66100). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/J G Exhibits: 1. Location map 2. Agreement 25E-2 LEGEND ® SUBJECT PROPERTIES I 1 ~ -----------------------r F,i I II KTS J ff O C m ~ i It ~ WARNER AVE EXHIBIT 1 J~PTioiv SAN-A ANA CITY COUNCIL TITLE: ALL INCLUSIVE SETTLEMENT P1 AUGUST AGENDA 01, DATE 2011 A AGREEMENT FOR 1211 W. WARNER `J VENUE (PROJECT NO. 091752) PUBI fC YCAYS aGENCI 25E-4 EXHIBIT 2 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made by and between the City of Santa Ana, a charter city and municipal corporation duly organized and exiting under the Constitution and laws of the State of California ("City") and Big 0 Tires, LLC ("Tenant"). The City and Tenant are hereinafter sometimes referred to collectively as the "Parties." RECITALS A. Tenant operates a business, commonly known as Big 0 Tire, and is the occupant of real property located at 1211 W. Warner, Santa Ana, CA (the "Property"). B. The Property has been acquired by the City for the Bristol Street/Warner Avenue Intersection Project. Tenant currently occupies the Property tinder a lease dated June 1, 2001, which was assigned to and assumed by Big 0 Tires, LLC, and which expires on May 31, 2016 (the "Lease"). C. The Parties desire to resolve all issues relating to the City's acquisition of the Property in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in paragraph 1(a) and other consideration given in cormection with this Agreement are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the parties herein released. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The City shall pay to Tenant the sum of $250,000.00 (Two Hundred Fifty Thousand Dollars) (Tenant Settlement Payment) as total compensation for relocation assistance and any and all related expenses and claims as more fully described in paragraph 1(b) below. Upon full execution of this A- eemertt, the City will begin processing an initial payment to Tenant in the amount of $150,000.00. The City will make the final payment to Tenant in the amount of $100,000.00, less any deductions described in paragraphs 1 (c) & (d) of this Agreement, after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City's relocation consultant, and provides written verification that all hazardous materials have been legally and properly moved. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the City to Tenant, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, loss of business goodwill, compensation for personal property (loss of inventory), l of 7 25E-5 furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Tenant agrees to vacate the premises by no later than January 31, 2011 (Vacate Date). Should Tenant remain in occupancy beyond the Vacate Date, a Two Hundred Fifty Dollars ($250) per day penalty will be deducted from the Tenant Settlement Payment, for each day of occupancy beyond the Vacate Date unless a written request for an extension has been submitted and consequently approved by the City or its Agents. (d) Tenant hereby agrees that City may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desires, without any notice to Tenant. Any disposal costs associated with Tenants' personal property, or clean up fees paid by the City, will be deducted from the Tenant Settlement Payment. 2. Release (a) Nothing contained herein shall constitute a release or discharge by either party for any of the undertakings of the other party to this Settlement Agreement. This Agreement shall serve as a full release and discharge by the Parties, on behalf of themselves, their agents, representatives, assigns, trustees, administrators, attorneys, heirs, relatives, spouses, ex-spouses, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the Tenant, the City of Santa Ana, the City of Santa Ana Public Works Agency, and those parties' accountants, other professionals, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries, and successors in interest (collectively the "Released Parties"), from all rights, claims or cross-claims, demands, actions, or causes of action, including those for damages, compensation, relocation assistance, relocation benefits, loss of goodwill, property interest, compensation for personal property (loss of inventory), furniture, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refiunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, at law or in equity, that the Parties have now or may have against any of the Released Parties arising from the facts and circumstances described in this Agreement including but not limited to (1) the acquisition of the Property by the City, (2) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of City's actions or failure to act, 'including, but not limited to, any claim to relocation assistance, relocation benefits or compensation for property or loss of goodwill from the City. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of 2 of 7 25E-6 any kind, whether the claim, or any facts on wlvch such claim might be based, is known or unknown to the party possessing the claim. Each party expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code, which the Parties understand provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his/her. favor at the time of executing the release, which i~ known by him/her must have materially affected his/her settlement with the debtor. Each party acknowledges the foregoing waiver of the provisions of California Civil Code Section 1542 was separately bargained for and expressly consents that this Agreement shall be given full force and effect in accordance with each and all of its express terms and provisions, including those terms and provisions relating to unknown or unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each party acknowledges that it may hereafter discover facts or law different from or in addition to those which it now believes to be true with respect to the release of claims. Each party 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. The Parties shall not be entitled to any relief in connection therewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. (d) None of the Parties or their respective agents nor any related entities have made any statement or presentation to the other regarding any fact relied upon in entering into this Agreement and the Parties, and each of them, expressly do not rely upon any statement, representation or promise of any other party or nay party's agent or related entities in executing this Agreement, except as is expressly set forth herein. Each of the Parties has made such investigation of the facts and law pertaining to the subject matter of this Agreement as it deems necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e) Tenant hereby represents and warrants as of the Effective Date of this Agreement that (1) to its actual knowledge, no other entity or person has any right, title, or interest whatsoever in the released claims, and (2) that there has been no assignment, transfer, conveyance or other disposition by Tenant of any of the released claims, and that Tenant will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Tenant will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from Tenant's nondisclosure of of 7 25E-7 any other interests in the Property or personal property referenced by this agreement. (g) This Agreement represents a settlement of doubtful and disputed claims between the Parties and does not constitute any admission of liability by either party to the other party to this Agreement. Tenant and City now wish to enter into this Agreement in lieu of and under threat of eminent domain proceedings. 3. Third Party Beneficiaries Except as explicitly set forth herein, nothing in this Agreement is intended to create any third party beneficiaries under this Agreement, and no person or entity other than Authority and Tenant shall be authorized to enforce the provisions of this Agreement. 4. Attorney's Fees In the event of litigation relating to or arising out of this Agreement, the prevailing party shall be entitled to be reimbursed by the non-prevailing party for all reasonable costs and expenses incurred thereby, including, but not limited to reasonable attorney's fees and costs for services rendered to such prevailing party. 5. Indemnity Each party shall indemnify, defend and hold the other party and the Released Parties harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorney's fees and/or costs resulting from the breach by such indemnifying party of any provision of this Agreement, the falsity of any representation or warranty made by the indemnifying party contained in this Agreement. 6. Entire Aareennent This Agreement together contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. 7. Partial lnvaliditv In the event that any terns, covenant, condition or provision of this Agreement shall be detennined by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 8. Waiver and/or Modification The provisions of this Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon a written agreement signed by each of the Parties. The waiver by one party of the performance of any provisions of this Agreement shall not invalidate this Agreement, nor shall it be deemed a waiver of any other provision hereof. 4of7 25E-8 9. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and for reference only and shall not be considered for any purpose in construing this Agreement. 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. 11. Successors In Interest Subject to any restrictions against assignment contained herein, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estates, heirs, legatees, agents and related entities of each of the Parties. 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 carry out the provisions of this Agreement. 13. Advice of Counsel The Parties, and each of the, acknowledge that in connection with the negotiations and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel; or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of the party not so represented; and, prior to executing the Agreement, each party has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement including but not limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542. 14. Authoritv 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. 5 of 7 25E-9 15. Construction Each party has cooperated in the drafting and preparation of this Agreement. hi 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. 16. Countemarts 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. 17. Voluntarv 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. 18. 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 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: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To 1'enant: Charles Zacharias Big O Tires, LLC 823 Donald Ross Rd. Juno Beach, FL 33408 6of7 25E-10 19. Jurisdiction and Venue Any action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California court in the County of Orange, California. Each party hereto irrevocably consents to the personal jurisdiction of the court. The Parties each hereby expressly waive the benefit of any provision of law providing for a change of venue to any other court, including, without limitation, federal court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. IT WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. Tres, LLC (95" a3~~1 Z'~ l i iarl Zacharias Title Tax Identification No. Date APPROVED AS TO FORM: BY: Dated , Bc Tenant Legal Counsel CITY OF SANTA ANA BY: Dated Joseph Straka Interim City Attorney ATTEST: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney BY: Dated Jose Sandoval Managing Senior Assistant City Attorney 7 of 7 25E-11 i 25E-12