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HomeMy WebLinkAboutKIM, IN BOUN; YOON SEO HOWANG, Y.S. HOWANG, RIM YOUN SEO AND MO YOUN HYUN - 2008INSURANCE NOT REQUIRED A-2008-032 WORK MAY PROCEED `ELERK OF COUNCIL ACQUISITION SETTLEMENT AGREEMENT (;;rcly Gcm~z. , 2008 This Acquisition Settlement Agreement ("ASA") is entered into on Fe~i~uorv ~/ 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 In Boun Kim, Yoon Seo Howang, Y. S. Howang, Rim Youn Seo and Mo Youn Hyun ("Tenants"). City and Tenants may collectively be referred to in this ASA as the "Parties." RECITALS A. City is the fee owner of 1003 South Bristol Street, Santa Ana, California ("Property"). B. Tenants operate a business on the Property commonly known as Bank's Liquor, and are the occupants 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 Tenants are 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 agrees to pay Tenants, collectively, in accordance with the disbursement schedule referenced in section 1(b)&(c), below, the total sum of FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($400,000.00) as compensation for relocation assistance, relocation benefits, and/or other compensation or damages to which Tenants may now or in the future be entitled to as a result of City's acquisition of the Property for the Project, including, but not limited to, any and all loss ofbusiness goodwill, leasehold interests, security deposits, personal property, improvements pertaining to realty, bonus value, and severance damages. b. Upon execution of this ASA, City will process an initial payment to Tenants in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00). Tenants agree that any payment in accordance with this section Acquisition Settlement Agreement Page I of 7 Arc Ta T-o'v wL '. Z - `~ shall be made payable by the City to the "Driscoll and Fox Client Trust Account." c. City will process a second and final payment to Tenants in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) upon satisfactory evidence provided by Tenants to City that the following conditions have been satisfied: All Tenants have (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 the City or to City's agents, and (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. Each payment referenced in paragraphs 1(a) or 1(b), above, shall be subject to offsets as described in Section 2, below. Tenants agree that al] payments by City to Tenants shall. he made directly to the "Driscoll and Fox Client Trust Account." 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 Tenants relating to City's acquisition of the Property for the Project. e. As a matter of record, the compensation paid to Tenants in accordance with this ASA shall be allocated between and among them in accordance with their mutual agreement, in which City shall have no involvement. 2. Failure to vacate the existine buildine and other improvements from the Property Tenants each agree to vacate the Property not later than March 15, 2008 ("Vacate llate"). Tenants agree they shall be jointly and severally liable for payment to City of a rental fee ofTWO HUNDRED AND NO/100 DOLLARS {$200.00) for each and every day Tenants, individually and/or collectively, remain in possession of the Property after the Vacate Date, which rental fee shall 6e deducted as an offset from the final payment to Tenants as described in section 1(c) above. 3. Release a. Tenants, individually and collectively on behalf of themselves, their agents, assigns and related entities, agree 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 Tenants now have or may in the future have against City arising from the acquisition of the Property for the Project, including, but not limited to, trade fixtures, furniture and equipment, leasehold interests, and claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any). Acquisition Settlement Agreement Page 2 of 7 p C ~^ , 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, or has been provided an opportunity to consult, with legal counsel concerning the matters contained herein. 4. Attorney's Fees In the event of litigation relating to this ASA, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 5. Indemnity By Tenants Tenants shall individually and collectively 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 Tenants of any provision of this ASA, or the falsity of any representation or warranty made by Tenants contained in this ASA. 6. 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 maybe modified only by a writing executed by the Parties hereto. 7. 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. 8. Waiver The provisions of this ASA maybe 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 im~alidate this ASA, nor shall it be considered a waiver of any rights or remedies available to the non-breaching Party of this ASA. 9. Headin>s The headings, subheadings and numbering of the different sections of this ASA are inserted Acquisition Settlement Agreement Page 3 of 7 ~- Ct9 'svV Wl '. for convenience only and shall not be considered for any purpose in construing this ASA. 10. 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. 11. 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. 12. Necessary Acts Each Party to this ASA agrees to perform any further acts and execute and deliver any further documents that maybe reasonably necessary to carry out the provisions of this ASA. 13. 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. 14. Parties Have Not Transferred Right Or Claims The Parties hereto each represent and warrant to the other Party that they have not assigned, transfen-ed 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. 15. 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 Page 4 of 7 16. 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. 17. 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 Tenants: Bank's Liquor c/o Driscoll and Fox 714 W. Olympic Blvd., #614 Los Angeles, CA 90015 Attn: William Driscoll To Tenants: Driscoll and Fox Post-move 714 W. Olympic Blvd., #614 Los Angeles, CA 90015 Attn: William Driscoll Acquisition Settlement Agreement 1 18. 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. TENANTS: Banks Liquor By: '' f ~0~(~/~~'~ Date J,(~O,~G(A,jl`t'1~2008 In Boun Kim By: ^,~,.` ~ Date / ~ ~ 2008 Moon Seo Howang By: `_--~_~'°~~ Date Y. S. Howang _-- By: i.~.~~... ~` ? Date Rim Youn Seo By: ~ Date Mo oun Hyun _ 2008 -~ 2008 2008 CITY City of an a A By: tea: L ~ , zoo8 David N. eam ATTEST: By. Dated: ~, 2008 Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney Assistant City Attorney Dated: r / (~ , 2008 Acquisition SetClement Agreement Page 6 of 7 ~lO '-~L7yVV~'. ti EXHIBIT A LEGAL DESCRIPTION l"HE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: ThP Noii.h 49.1E feet of Lot 12 of the "Nininger Tract", as shown nn a map thereof rccordec in Bock 3, Page 33, Miscellaneous Maps, record, of said Orange County. Except therefrom the bVestorly 10 feet, as granted to tl,e City of Santa Ana by Deed recorded ]une 73, 1957. in Bciok 2200, Poye 311. of Offiriai R<~:cords, in Ux' Office of the County Recorder of said Orange County. Assessor= Farcel Nuinbcr: p10-272-23 Acquisition Settlement Agreement Paee '1 of 7 ~ l0 ~bv /V~ ~~