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Home My WebLink About25J - AGMT - BRISTOL TENANT PHASE 4REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2017 TITLE: APPROVE TENANT - INTEREST SETTLEMENT AGREEMENT FOR BRISTOL STREET IMPROVEMENTS PRASE 4 (PROJECT NO. 116741) (NON- GENERAL FUND) (STRATEGIC PLAN NOS. 6, 1G; 3,2C) - V/4 VA • NEW RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" 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 a Settlement Agreement of Tenant Interest in the property listed below and goodwill (if any) with the following tenant, subject to nonsubstantive changes approved by the City Manager and City Attorney: No. Tenant Property commonly Acquisition Amount known as / location Type 1 Outfront Media, LLC 2115 -2123 South Bristol Street Billboard $500,000 (APN 015- 194 -20, 21, 22) DISCUSSION Bristol Street is a north -south transportation corridor designated as a major arterial highway in the City's Circulation Element of the General Plan. Improving the 3.9 -mile Bristol Street segment from Warner Avenue to Memory Lane has been a long -term priority project that is being constructed in several phases. Improvements include widening the street from two to three lanes in each direction, raised landscape medians, and adding bike lanes. The City is acquiring properties for the development of Phase 4, bounded by Warner Avenue and Saint Andrew Place. Property acquisitions for this phase are expected to be completed by summer 2017, and construction is anticipated to begin in fall 2017. The settlement agreement for tenant interest is necessary to accommodate the improvements and widening for Phase 4 (Exhibit 1). The settlement amount, based on the appraised value prepared by a California State licensed appraiser, was accepted by the tenant. The settlement amount is listed above and shown in the attached agreement (Exhibit 2). 25J -1 Settlement Agreement for Real Property Acquisition Bristol Street Improvements Phase 4 April 18, 2017 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 — Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). Approval of this item also supports the City's efforts to meet Goal #3 — Economic Development, Objective #2 (create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies), Strategy C (support business development and job growth along transit corridors through the completion of critical transit plans /projects). ENVIRONMENTAL IMPACT In 1990, City Council approved the Bristol Street Final Environmental Impact Statement /Environmental Impact Report (FEIS /EIR No. 89 -01). Due to several minor design modifications in Phase 4, which lies between Warner Avenue and Saint Andrew Place, an Addendum to the FEIS /EIR was prepared and adopted pursuant to the California Environmental Quality Act by City Council on April 7, 2015. FISCAL IMPACT Funds are available in the Bristol Street Improvements Project (No. 116741) for expenditure in FY 2016 -2017 in the Select Street Construction Fund (Account No. 05917661 - 66100), subject to nonsubstantive changes. F d Mousavipour Executive Director Public Works Agency FM /EWG /JG /ML APPROVED AS TO FUNDS & ACCOUNTS: C Rs� A %�x A i I ,tea Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: 1. Location Map 2. Agreement for 015 - 194 -20, 21, 22 25J -2 MATCHLINE SEE BELOW RIGHT I I i I 140 &37877 ST GERTRUDE PL 1408471.011 i 40847Y-17 408« 71 -M W co vJ —i 0 m T.--j._ I I I �i1.- 1..1...1.. WARNER AVENUE LEGEND= -SUO EOT PHrH ry -A LOUIRE PPGPEPi'IE9 E 4 �I 1 I I I I I I ST ANDREW PL 4 i i i i m I I A CARLTON PL " r I I i GLENWOOD PL I i i ✓�� - 1- - - -t-- -fir �� CAMDEN PL Air i �3T ANNE PL '� EXHIBIT 1 I I �..T 1 I I y I J I I 1 m gl i i -r- r' �ol I I I v i i i I i i r--r-- r --r -- I I ryl I I I I _ MATCHLINE SEE TOP LEFT SANTA ANA SETTLEMENT AGREEMENT FOR P 1 CITY COUNCIL BRISTOL STREET IMPROVEMENTS AGENDA DATE: PHASE 4 (PROJECT NO. 116741 APRIL 18, 2017 NONGENERAL FUND) PUBLIC WORKS 0ENCY (Strategic Plan No. 6, 1, GI and 3, 2, CI 25J -3 PAGE 1 OF 1 25J -4 imD s_'_ ' plan planowl Wmanw-010u." - This Settlement Agreement and General Release ( "Agreement ") is entered into by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the state of California ( "City ") and Outfront Media, LLC, formerly known as and successor in interest to CBS Outdoor LLC ("Outfront'), as of the date of frill execution by all parties. Together, City and Outfront will be referred to as the "Parties." RECITALS A. Outfront leases several parcels of real property within the City on which it has constructed and maintains outdoor advertising structures, otherwise known as billboards. Outfront displays advertisements on these billboards for its clients. B. City has acquired the real property at 211.5 -2123 S. Bristol Street, Santa Ana ( "Property ") in which Outfront has a leasehold interest through February 28, 2030, under CBS Outdoor Lease No. 20034 ( "Lease "), and maintains a single billboard identified as Outfront Media Display No. 65001/6843 (`Billboard "). City has acquired the Property for the Bristol Street Widening Project ( "Project "). C. In exchange for the promises and consideration described below, Outfront has agreed to remove the Billboard to accommodate City's construction schedule for the Project and surrender any and all rights it has or may have under the Lease, D. IC is the intent of the Parties for this Agreement to establ'is'h the terms of a full and complete resolution of all differences, contentions, claims, or potential claims. AGREEMENT Incorporating the Recitals above in this Agreement, the Parties hereby agree as follows: t. Compensation to be Paid. Upon full execution of this Agreement, City agrees to pay Outfront $500,000 ( "Settlement Amount "). The Settlement Amount shall be made payable to " Outfront Media LLC" and shall be delivered to Outfront's counsel at Miller Starr Regalia, Attn: Brian Shaffer, 1331 N. California Blvd., Fifth Floor, Walnut Creek, California 94596. The Settlement Amormt shall be paid by City within sixty (60) days of the Effective Date (as defined below). 2, Removal of Billboard. At its sole expense and responsibility, Outfront agrees to remove the faces or panels of the Billboard upon which the advertisements are placed ( "Panels "). The Panels shall be removed by Outfront within seven (7) days following receipt of the Settlement Amount by Outfront ( "Removal Date"), Demolition of the remainder of the Billboard structure shall be conducted by City at City's sole expense and liability, Once the Panels are removed by Outfront, the continued presence of the remainder of the Billboard Structure, including but not limited to any below -grade portions of the Billboard, shall not constitute continued occupancy of the Property by Outfront. 0TAD \53329\1019225.4 25J -5 3. Continuation and Termination of Lease, Outfront shall comply with all the terms and conditions of the Lease, including the payment of rent to City in the amounts set forth in the Lease, until and through the Removal Date, at which time the Lease, and all rights Outfrout has thereunder, shall terminate and be fully extinguished without any further action by the Parties. 4. Failure to Remove Billboard. Poster Panel. If the Panels are not removed by the Removal Date, Outficnt grants City the right to remove the Panels at Outfront's expense, and City and /or its agents shall be entitled to remove the Panels and dispose of them without any liability to Outfont. Any items of personal property, fixtures, or equipment related to the Billboard that remain after the Removal Date shall be deemed abandoned and shall become the sole and exclusive property of City. City may dispose of such items in any manner it deems appropriate in its sole and absolute discretion without any liability to Outfront, however, any sums received by City through the sale of any such items shall be deducted from any removal costs incurred by the City under this Section. 5. Effective Date: As used herein, the "Effective Date" of this Agreement shall mean and refer to the last date upon which both City and Outfront have executed this Agreement, and the same has been delivered to each Party. 6. Full Settlement. The payment of the Settlement Amount by City constitutes a full settlement of all claims Outfront has, may have, or could have against City for the removal of the Billboard and /or 'the termination of the Lease on account of the Project. Outfront waives the ability to claim any additional payment from City on account of the removal of the.Billboard and /or the termination of the Lease, or for any cause of action that could have been brought against City due to City's acquisition of the Property, including without limitation any claim related to the Billboard or the Lease. 7. Mutual Release. By executing this Agreement, each Party hereto, on its behalf and on behalf of its owners, officers, employees, partners, parent companies, affiliates, representatives, attorneys, insurers, agents, subsidiaries, successors, and assigns, hereby expressly and unconditionally waives and releases each other Party hereto, as well as each other Party's owners, officers, partners, parent companies, affiliates, representatives, attorneys, insurers, agents, subsidiaries, successors, and assigns, known or unknown, from any claims or damages relating to the Lease and the Billboard, including, butnot lanited to stay claims for severance, goodwill, relocation, furniture fixtures or equipment, or clahns for inverse condemnation or pre - condemnation conduct that could have been raised in connection with the removal of the Billboard, the termination of the Lease, or acquisition of the Property, or any other compensation, damages or benefits that could have been raised in connection with the Property. Nothing contained in this paragraph or elsewhere in this Agreement shall be deemed to release or relieve any Party of its obligations otherwise assumed under the terms of this Agreement. 8. General Release. With respect to the claims released in Section 7 of this Agreement, the Parties further acknowledge and are aware of the provisions of California Civil Code section 1542, which 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 OTAM5332W 019225.4 25J -6 of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Parties acknowledge that they may have sustained damage, loss, costs or expenses that are presently unknown and unsuspected, and such damage, loss, costs or expenses which may have been sustained may give rise to additional damage, loss, costs or expenses in the future, The Parties hereby acknowledge that this Agreement has been negotiated and agreed upon, and hereby expressly waive any and all rights which it may have under California Civil Code section 154.2, or under any statute or common law or equitable principle of similar effect. 9. Representations and Warranties. Each of the Parties hereto represent and warrant that it/he /she is not aware of any other party having any interest in any claim or claims which are the subject of this Agreement; nor has it/he /she assigned, hypothecated or otherwise transferred any interest in any claim or claims which are the subject of this Agreement. 10, No Admission of Liability. This Agreement is a compromise of any disputed claims between the Parties hereto and is not be construed as an admission of liability by any Party for any purpose, 11, Integration. tion. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the Parties; there are no warranties, representations or other agreements between the Parties except as expressly set forth herein. No amendment hereto is binding unless set forth in a writing stating that it is intended to amend this agreement, executed by the party to be bound thereby. No waiver of any of the provisions of this Agreement will constitute a waiver of any of the other provisions hereof, whether or not similar, nor will such waiver constitute a continuing waiver, 12. Counterparts• This Agreement may be executed in counterparts and, as so executed, will constitute one agreement binding on all Parties. Executed copies sent by facsimile or email will have the same force and effect as original signatures, 13. Severability. In the event that any provision of this Agreement is found by a court of competent jurisdiction to be void or voidable, the remaining provisions of this Agreement will remain in full force and effect, 14. Each Party to Bear Own Costs and Fees. Except as may be otherwise provided herein, each party shall bear its own costs and attorney's 'fees associated with the actions being settled hereby. If any action is brought by any Party to enforce the terms of this Agreement, each Party shall bear its own costs and attorney's fees, 15. Cooperation. The Parties agree to do all things necessary and to execute all Wrther docuinents necessary and appropriate to carry out and effectuate the terms and purposes of this Agreement. 16, Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties to the Agreement. OTAO\53329 \1019225A 3 25J -7 17. Governing Law and Venue. This Agreement shall be deemed to have been executed and delivered within the State of California. The rights and obligations of the Parties hereunder shall be governed, construed, and enforced in accordance with the laws of the State of California. The venue for any dispute arising from or related to this Agreement, its performance, and its interpretation shall be Orange County Superior Court. 18. Notices. Any notice, request, or communication to be given to either Party under this Agreement shall be given in writing and shall be personally delivered or mailed by prepaid registered or certified mail to the addresses below. Notices so mailed are deemed received within three (3) business days of mailing. City of Santa Ana Gerardo Monet, Acting City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 With Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, M29 Santa Ana, CA 92701 Outfront Media, LLC Collin Smith Director of heal Estate —West 1731 Workman Street Los Angeles, CA 90031 With Copy to: Brian Shaffer, Esq. Miller Starr Regalia 1331 N. California Blvd., Fifth Floor Walnut Creel, CA 94596 19. Each Party Authorized. By signing this Agreement, each party attests that he or she is duly authorized by his or her respective corporation or entity, if applicable, to execute this Agreement. Dated: C , 2017 _ �' C. OUTTRONT MEDIA, LLC Dated: 2017 OTAD \53329 \1 019225.4 Gerardo Mouet Acting City Manager, City of Santa Ana 25J -8 ATTT51• Dated: , 2017 APPROVED AS TO T41IM: SONIA CARVALHO City Attorney City of Santa Ana w & 'I N M. FUNK, Assistant City Attorney OTAD \53329\ 19225.4 MARIA D. HUIZAR Clerk of the Council, City of Santa Ana 25J -9 SETTLEMENT AGREEMENT AND GENERAL RE ASE This Settlement Agreement and General Release ( "Agreement") is entered into by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the state of California ( "City ") and Outfront Media, LLC, formerly known as and successor in interest to CBS Outdoor LLC ( "Outfront "), as of the date of full execution by all patties. Together, City and Outfrom will be referred to as the "Parties." RECITALS A. Outfront leases several parcels of real property within the City on which it has constructed and maintains outdoor advertising structures, otherwise known as billboards. Outfront displays advertisements on these billboards for its clients. B. City has acquired the real property at 2115 -2123 S. Bristol Street, Santa Ana ( "Property ") in which Outfront has a leasehold interest through February 28, 2030, under CBS Outdoor Lease No. 20034 ( "Lease "), and maintains a single billboard identified as Outfront Media Display No. 65001,/6843 ( "Billboard "). City has acquired the Property for the Bristol Street Widening Project ( "Project "). C. In exchange for the promises and consideration described below, Outfront has agreed to remove the Billboard to accommodate City's construction schedule for the Project and surrender any and all rights it has or may have under the Lease. D. It is the intent of the Parties for this Agreement to establish the terms of a full and complete resolution of all differences, contentions, claims, or potential claims. AGREEMENT Incorporating the Recitals above in this Agreement, the Parties hereby agree as follows: 1. Compensation to be Paid. Upon full execution of this Agreement, City agrees to pay Outfront $500,000 ( "Settlement Amount "). The Settlement Amount shall be made payable to " Outfront Media LLC" and shall be delivered to Outfitont's counsel at Miller Starr Regalia, Attn: Brian Shaffer, 1331 N. California Blvd., Fifth Floor, Walnut Creek, California 94596. The Settlement Amount shall be paid by City within sixty (60) days of the Effective Date (as defined below). 2. Removal of Billboard. At its sole expense and responsibility, Outfront agrees to remove the faces or panels of the Billboard upon which the advertisements are placed ( "Panels "). The Panels shall be removed by Outfront within seven (7) days following receipt of the Settlement Amount by Outfront ( "Removal Date "). Demolition of the remainder of the Billboard structure shall be conducted by City at City's sole expense and liability. Once the Panels are removed by Outfront, the continued presence of the remainder of the Billboard Structure, including but not limited to any below -grade portions of the Billboard, shall not constitute continued occupancy of the Property by Outfront. OTAD \53329 \1019225.4 25J -10 3. Continuation and Termination of Lease. Outfront shall comply with all the terms and conditions of the Lease, including the payment of rent to City in the amounts sett forth in the Lease, until and through the Removal Date, at which time the Lease, and all rights Outfront has thereunder, shall terminate and be fully extinguished without any further action by the Parties. 4. Failure to Remove Billboard Poster Panel. If the Panels are not removed by the Removal Date, Outfront grants City the right to remove the Panels at Outfront's expense, and City and /or its agents shall be entitled to remove the Panels and dispose of them without any liability to Outfront. Any items of personal property, fixtures, or equipment related to the Billboard that remain after the Removal Date shall be deemed abandoned and shall become the sole and exclusive property of City. City may dispose of such items in any manner it deems appropriate in its sole and absolute discretion without any liability to Outfrom, however, any sums received by City through the sale of any such items shall be deducted from any removal costs incurred by the City under this Section. 5. Effective Date: As used herein, the "Effective Date" of this Agreement shall mean and refer to the last date upon which both City and Outfront have executed this Agreement, and the same has been delivered to each Party, 6. Full Settlement. The payment of the Settlement Amount by City constitutes a full settlement of all claims Outfrom has, may have, or could have against City for the removal of the Billboard and /or the termination of the Lease on account of the Project. Outfront waives the ability to claim any additional payment from City on account of the removal of the Billboard and /or the termination of the Lease, or for any cause of action that could have been brought against City due to City's acquisition of the Property, including without limitation any claim related to the Billboard or the Lease. 7. Mutual Release. By executing this Agreement, each Party hereto, on its behalf and on behalf of its owners, officers, employees, partners, parent companies, affiliates, representatives, attorneys, insurers, agents, subsidiaries, successors, and assigns, hereby expressly and unconditionally waives and releases each other Party hereto, as well as each other Party's owners, officers, partners, parent companies, affiliates, representatives, attorneys, insurers, agents, subsidiaries, successors, and assigns, known or unknown, from any clainns or damages relating to the Lease and the Billboard, including, butnot limited to any claims for severance, goodwill, relocation, furniture fixtures or equipment, or claims for inverse condemnation or pre - condemnation conduct that could have been raised in connection with the removal of the Billboard, the termination of the Lease, or acquisition of the Property, or any other compensation, damages or benefits that could have been raised in connection with the Property. Nothing contained in this paragraph or elsewhere in this Agreement shall be deemed to release or relieve any Party of its obligations otherwise assumed under the terms of this Agreement. 8. General Release. With respect to the claims released in Section 7 of this Agreement, the Parties further acknowledge and are aware of the provisions of California Civil Code section 1542, which 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 OTAD \53329 \1019225.4 25J -11 of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Parties acknowledge that they may have sustained damage, loss, costs or expenses that are presently unknown and unsuspected, and such damage, loss, costs or expenses which may have been sustained may give rise to additional damage, loss, costs or expenses in the future. The Parties hereby acknowledge that this Agreement has been negotiated and agreed upon, and hereby expressly waive any and all rights which it may have under California Civil Code section 1542, or under any statute or common law or equitable principle of similar effect. 9. Representations and Warranties. Each of the Parties hereto represent and warrant that it /he /she is not aware of any other party having any interest in any claim or claims which are the subject of this Agreement; nor has it/he /she assigned, hypothecated or otherwise transferred any interest in any claim or claims which are the subject of this Agreement. 10, No Admission of Liability. This Agreement is a compromise of any disputed claims between the Parties hereto and is not be construed as an admission of liability by any Party for any purpose. 11. Integration. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the Parties; there are no warranties, representations or other agreements between the Parties except as expressly set forth herein. No amendment hereto is binding unless set forth in a writing stating that it is intended to amend this agreement, executed by the party to be bound thereby, No waiver of any of the provisions of this Agreement will constitute a waiver of any of the other .provisions hereof, whether or not similar, nor will such waiver constitute a continuing waiver. 12. Counterparts. This Agreement may be executed in counterparts and, as so executed, will constitute one agreement binding on all 'Parties. Executed copies sent by facsimile or email will have the same force and effect as original signatures. 13. Severability. In the event that any provision of this Agreement is found by a court of eompetentjrnisdiction to be void or voidable, the remaining provisions of this Agreement will remain in full farce and effect. 14. Each Party to Bear Own. Costs and Fees. Except as may be otherwise provided herein, each party shall bear its own costs and attorney's fees associated with the actions being settled hereby. If any action is brought by any Party to enforce the terms of this Agreement, each Party shall bear its own costs and attorney's fees. 15. Cooperation. The Parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and effectuate the terms and purposes of this Agreement. 16, Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties to the Agreement. OTAD \53329\1019225.4 3 25J -12 17, Governine Law and Venue. This Agreement shall be deemed to have been executed and delivered within the State of California. The rights and obligations of the Parties hereunder shall be governed, construed, and enforced in accordance with the laws of the State of California. The venue for any dispute arising from or related to this Agreement, its performance, and its interpretation shall be Orange County Superior Court. 18. Notices. Any notice, request, or communication to be given to either Party under this Agreement shall be given in writing and shall be personally delivered or mailed by prepaid registered or certified mail to the addresses below. Notices so mailed are deemed received within three (3) business days of mailing. City of Santa Ana Gerardo Mouet, Acting City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 With Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, M29 Santa Ana, CA 92701 Outfront Media, LLC Collin Smith Director of Real Estate —West 1731 Workman Street Los Angeles, CA 90031 With Copy to: Brian Shaffer, Esq. Miller Starr Regalia 1331 N. California Blvd„ Fifth Floor Walnut Creek, CA 94596 19, Each Party Authorized. By signing this Agreement, she is duly authorized by his or her respective corporation or entity, Agreement . rl/ t" 4 jr I - OUfFRONT MEDIA, LLC PARTIES: Dated: F�r >, ( , 2017 Dated: 2017 OTADA63329A1019225.4 each party attests that he or if applicable, to execute this Gerardo Mouct Acting City Manager, City of Santa Ana 25J -13 A,I,TEST: Dated: 2017 APPROVED AS TO FORM: SONIA CARVALIIO City Attorney City of Santa Ana �1' XON M. FUNK, Assistant City Attorney OTAM5332011010225A MARIA D. I-IUIZAR Clerk of the Council, City of Santa Ana 25J -14