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HomeMy WebLinkAboutEVANS ROOFING COMPANY, INC.-2012A-2012-091 {,?,,?rr'of? ACQUISITION SETTLEMENT AGREEMENT ?.r 4 2012 This Acquisition Settlement Agreement ("ASA") is entered into on? `yam' 2012 between the City of Santa Ana, a charter city and municipal corporation du organized and existing under the Constitution and laws of the State of California ("City"), and Evans Roofing Company, Inc. ("Tenant"). City and Tenant may collectively be referred to in this ASA as the "Parties." RECITALS A. Tenant operates a business on the Property commonly known as Evans Roofing, and was the occupant of the real property and improvements located at 1101 E. Chestnut, Santa Ana, California ("Property") until August 27, 2010. B. Mark and Cindy Evans ("Landlord") were the fee owners of the Property. Landlord and City negotiated a Purchase and Sale Agreement ("PSA") for the Property, which resulted in the termination of Landlord's and Tenant's rights, title and/or interest in the Property. C. The Property is located within the Orange County Transportation Authority's Rail Safety Enhancement Project Area and City acquired the Property for a public use. D. 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 and to resolve any and all existing disputes with regard to the acquisition of the Property by City upon the terms and conditions as hereinafter set forth. E. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for loss of business goodwill and relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and has received written material describing these rights. 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: 1. Consideration a. City agrees to pay to Tenant the total sum TWO HUNDRED EIGHTY FIVE THOUSAND AND N01100 DOLLARS ($285,000.00), as compensation for loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty, bonus value, 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. City will make payment to Tenant in the amount of TWO HUNDRED EIGHTY FIVE THOUSAND AND NO/100 DOLLARS ($285,000.00) immediately upon City Council approval. Acquisition Settlement Agreement Pagel of 5 C. Payment of the consideration referenced in section 1 of this ASA shall constitute full satisfaction of City's obligation to compensate Tenant for any and all loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty and bonus value. d. As a matter of record, the compensation paid to Tenant in accordance with this ASA does not include relocation benefits. 2. 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 Acquired Property, including, but not limited to, trade fixtures, furniture and equipment, leasehold interests, claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any), including claims from vendors, independent contractors and subtenants now and forever. 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. 3. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4. Indemnity By Tenants 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. 5. Entire Agreement This ASA contains the entire Agreement of the Parties hereto pertaining to the subject matter discussed herein, and supersedes the ASA dated September 7, 2010 in the amount of ONE HUNDRED THIRTY TWO THOUSAND DOLLARS AND NO/100 Acquisition Settlement Agreement Page 2 of 5 ($132,000.00), which is null and void. This revised ASA may be modified only by a writing executed by the Parties hereto. 6. Partial hivalidit 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. 7. 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. 8. Headings 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. 9. 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. 10. 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. 11. Necessary 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. 12. 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 Acquisition Settlement Agreement Page 3 of 5 ASA and with respect to the meaning of California Civil Code § 1542. 13. 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. 14. 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. 15. 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. 16. 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: Mark Evans Evans Roofing Company, Inc. 2020 S. Yale St. Santa Ana, CA 92704 Acquisition Settlement Agreement Page 4 of 5 17. Counterparts This ASA 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. IN WITNESS WHEREOF, the Parties have executed this Acquisition Settlement Agreement as of the date first written above. TENANT: Evans Roofing Company, Inc. r? 1 By: Date r? /7 2012 Mark E a , C.E.O. CITY OF SANTA ANA: Y:- - Date: C 2012 Paul M. Walters Interim City Manager ATTEST: By: -1 I ? z; jr Maria D. Huizar , Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By. Jo andoval aging Senior Assis ant City Attorney Date: 2012 Acquisition Settlement Agreement Page 5 of 5