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HomeMy WebLinkAboutYUM YUM DONUT SHOPS, INC. 1-2012INSURANCE NOT REQUIRED A-2011-278 WORK MAY PROCEED CLERK OF CCUNC9L )ATE t- 3p- kZ ALL-INCLUSIVE SETTLEMENT AGREEMENT Z,/ This All-Inclusive Settlement Agreement ("ASA" or "Agreeme z' is entad p.n u Y 18, 2012 between the City of Santa Ana, a charter city andnicipd Corporation °Iduly organized and existing under the Constitution and laws of the Stf?-of California ("Cityy', and Yum Yurn Donut Shops, Inc., ("Tenant"). City and Tenant may 'c46ctively be referre,d'to in this ASA as the "Parties." - - RECITALS A. Tenant operates a business on the Property commonly known as Winchell's Donuts, and is the occupant of the real property and improvements located at 624 N. Bristol Street ("Property"). B. On or about September 29, 2010, as part of the Bristol Street Widening Project, the City acquired from WINR.EAL OPERATING COMPANY, L. P. the Property. The Property is presently occupied and leased by Tenant under a lease dated October 20, 2004 ("Lease"). C. Tenant qualifies as a displaced person under California Code of Regulations, Title 25, Division 1, Chapter 6, and is therefore eligible for relocation benefits as described therein. Tenant acknowledges that they have been informed of the City's relocation program and that they have received written material describing the relocation program, including a General Information Notice, an Informational Brochure and a Notice of Eligibility. D. 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. E. The parties acknowledge that the payment as set forth below in paragraph 1(a) and the other consideration given in connection 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. 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, and Tenant agrees to accept, THREE HUNDRED AND THIRTY ONE THOUSAND, TWO HUNDRED AND FIFTY AND 00/100 DOLLARS ($331,250.00), as compensation for relocation assistance and/or other relocation benefits to which Tenant may be entitled, and any and all loss of business goodwill, leasehold interests, personal property, improvements pertaining to realty, bonus value, and any and all other damages to which Tenants may be entitled as a result of City's acquisition of the Acquired Property for the Project. Payment of the $331,250 will be made within 45 days from the date that All Inclusive Settlement Agreement Page 1 of 5 v 15 the last party signs this ASA. b. Vacating Date. Tenant agrees to vacate Property on or before January 31, 2012. C. Payment of the consideration referenced in section 1 of this ASA, shall constitute full satisfaction of any and all of City's obligations to compensate Tenant. 2. Termination of Lease The Lease is hereby terminated as of January 31, 2012 and no party shall have any further rights or obligations with respect thereto. Release a. Tenant, on behalf of itself, its 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 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, and claims for loss of business goodwill, bonus value (if any) and/or severance damages (if any), including claims from vendors, independent contractors, subtenants now and forever. b. The City, on behalf of itself, its agents, assigns and related entities, does hereby release, remise, acknowledge and forever discharge Tenant, together with any affiliates, subsidiaries, parent companies, directors, shareholders, officers, agents, servants, attorneys and employees of Tenant, of and from any and all claims, known or unknown, counts, causes of action, debts, dues and damages arising directly or indirectly from the execution, performance or alleged failure of performance under the Lease. C. 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. 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. All Inclusive Settlement Agreement Page 2 of 5 g? Indemnity By Parties a. 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. City shall indemnify, defend and hold harmless Tenant from and against any and all claims, demands, liabilities, losses, judgments, expenses and attorney's fees resulting from the breach by City of any provision of this ASA, or the falsity of any representation or warranty made by City 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 may be modified only by a writing executed by the Parties hereto. 7. -Partial Invalidit57 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 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. 9. 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. 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 assigtunent 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, All Inclusive Settlement Agreement Page 3 of 5 successors-in-interest, personal representatives, executors, estate, heirs, legatees, Agents and related entities of each of the Parties hereto. 12. NecessM 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, 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, transferred or sublet to any third party any of the rights, claims, causes of action or items to be rei[eased or transferred which they are obligated to transfer or to release as part of this ASA. 15. Authori To Execute This A eent 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. 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; All Inclusive Settlement Agreement Page 4 o£5 ??y To City: City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Attention: Sour! Amirani To Tenant: Yum Yum Donut Shops, Inc. 18830 E. San Jose Avenue City of Industry, CA 91748 Attn: Real Estate Manager 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 All Inclusive Settlement Agreement as of the date first written above. TENANT: Yam Yum Donuts Shops, Inc. By: Tony Comolina Vice President of Operations Date ,Ja'7, 18 2012 CITY OF TA T).k,: By Date: Z 2012 Paul Walters Interim City Manager ATTEST: By: &VtA Date: / -Li , 2412 Maria D. Huizaz Clerk of the Council APPROVED AS TO FORM: Joseph Straka Irate ' ity ttorney By. o e Sandoval 'ef Assistant City Aitlorney All Inclusive Settlement Agreement Page 5 of 5