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HomeMy WebLinkAboutYOH, CHRIS, LUV-N-DONUTS- 2012A-2012-110 Cy { WA(2- J0,30n ?c1bY 1 e. I ALL INCLUSIVE SETTLEMENT AGREEMENT av? This Agreement ("Agreement") is made by and between the City of Santa Ana, a public body, corporate and politic ("Agency") and Chris Yoh and Sharon Yoh ("Tenants"). The Agency and Tenants are hereinafter sometimes referred collectively as the "Parties." RECITALS A. Tenants operate a business, commonly known as Luv N Donuts, and are the occupants of real property located at 410 N Bristol St. Unit A., Santa Ana, CA (the "Property"). B. A portion of the Property has been acquired by the Agency for the Bristol Street Widening Project. Tenants currently occupy the Property under a lease dated May 6, 1985, which commenced on May 6, 1985 and will terminate on August 1, 2012, by means of a hand delivered written 90 Day Notice to Vacate (collectively, the "Lease"). C. The Parties desire to resolve all issues relating to the Tenants' loss of business goodwill in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in Section 1(a) and 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 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 Agency shall pay to Tenants the sum of $26,000.00 (Twenty-Six Thousand Dollars) (Tenants Settlement Payment) as total compensation for goodwill loss and any and all related expenses and claims as more fully described in paragraph 1(b) below. Upon full execution of this Agreement, the Agency will begin processing a payment, payable to Chris Yoh and Sharon Yoh, in the amount of $26,000.00. Payment is to be made after Tenants relocate to 410 N. Bristol Street, unit E, Santa Ana, CA 92703. (b) Tenants agree that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the Agency to Tenants, including, without limitation, any obligations for interest of any kind in the real estate and leasehold, loss of business goodwill, interest, attorney's fees, or damages of any nature. (c) Tenants will vacate the premises on or before August 1, 2012 2. Release 1 of 7 (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 Tenants, 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, loss of goodwill, property interest, punitive damages, interest, costs, and attorney's , injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, 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 Agency, (2) Tenants' leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenants may have, assert, or claim by reason of Agency's actions or failure to act, including, but not limited to, any claim to loss of goodwill from the Agency. (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 any kind, whether the claim, or any facts on which 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 if known by him/her must have materially affected his/her settlement with the debtor. Each parry 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 terns and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each parry 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 2of7 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) Tenants hereby represent and warrant 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 Tenants of any of the released claims, and that Tenants will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenants acknowledge that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. (f)Tenants will Hold Harmless and defend Agency, its employees, agents, contractors or representatives from any claims that may arise from Tenants' nondisclosure of 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. 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 Tenants shall be authorized to enforce the provisions of this Agreement. 3 of 7 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 Agreement 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 Invalidity In the event that any term, covenant, condition or provision of this Agreement shall be determined 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. 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. 4of7 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. Authority 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. 15. Construction In 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. Counterparts 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. 5 of 7 17. Voluntary Ag-reement 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 Agency: Souri Amirani Interim City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenants: Chris Yoh and Sharon Yoh Lov N Donuts 410 N. Bristol Street, Unit A Santa Ana, CA 92703 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 Agency 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. 6 of 7 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANTS: Luv N Donuts V" /V Mr. Chris Yoh Title Tax Identification No. Date Mrs. Sharon Yoh Title Tax Identification No. Date CITY OF SANTA ANA BY Dated Paul M. Walters City Manager ATTEST: Dated G???.er??1c?iZ Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: JOSEPH STR..AKA Interim City Attorney BY: Dated JWAPJL 1a-12.0 Jo Sand C ' f Assistant City Attorney 7of7