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Home My WebLink About25G - AGMT - SETTLEMENT GRAND AVE WIDENINGREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 3, 2013 TITLE: SETTLEMENT AGREEMENT WITH LA ESTRELLITA FOR GRAND AVENUE WIDENING (PROJECT NO. 1732 NONGENERAL FUND CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1S` Reading ? Ordinance on 2Id 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 with La Estrellita Novelties, tenant of the property located at 208 North Grand Avenue, Unit A (APN 398- 453-06), in the amount of $12,962 for the value of the loss of business goodwill, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Grand Avenue is a north-south transportation facility which is designated as a major arterial highway, and carries in excess of 35,000 vehicles per day. The widening of Grand Avenue between First and Seventeenth Streets has been a long-term priority project that will be constructed in several phases. Improvements include the widening of the roadway from two to three lanes in each direction; construction of raised landscape medians; new curb, gutter, and sidewalk; and inclusion of bike lanes. The Public Works Agency is acquiring property for development of Phase I, bounded by First and Fourth Streets, and expects to complete the acquisition process by September 2013. Construction is anticipated to begin by early 2014. The Uniform Relocation Act obligates the City to relocate tenants of the properties acquired for the widening of Grand Avenue, and sets standards for benefit amounts. As part of the relocation process, La Estrellita, the tenant at 208 North Grand, Unit #A (Exhibit 1), must be paid for the loss of goodwill, due to the relocation of the business to its replacement site at 1322 North Grand Avenue, Santa Ana, CA. Compensation in the amount of $12,962 is the value for the loss of business goodwill as reviewed by an appraiser licensed by the State of California. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Final Environmental Impact Report (SCH No. 1998051068) approved by the City Council in 2002. In accordance with the 25G-1 Settlement Agreement with La Estrellita for Grand Avenue Widening Project June 3, 2013 Page 2 of 2 National Environmental Policy Act, an Environmental Assessment document with a Finding of No Significant Impact was prepared for the proposed project and approved by the California Department of Transportation and Federal Highway Administration in 2011. FISCAL IMPACT Funds to cover the recommended settlement agreement payouts are appropriated in the Regional Surface Transportation Program (Account 05917660-66220) and Transportation System Improvement Area Fund (Account 99117950-66220). APPROVED AS TO FUNDS AND ACCOUNTS: Rau Godinez II Francisco Gutierrez Executive Directo Executive Director Public Works Agency Finance & Management Services Agency rtwt._ RG/KN Exhibits: 1. Location Map 2. Agreement 25G-2 N ---i I (N T S) --? 398- 383-04 I 398-383-08 ? m I ? CD T co I 398-383-13 m ? ! 1 CD m i m 1 ! 'o ! i m tQi I C6 i m co r°i 1 m ! m i m ?' l m i m m i CUD' 'o 0 m I j 1 R m R j A m i i jmim mlmimi?o! 200 M CRUM d) m ! I e , Ln c6 Q 398454-1 m ! .,off, m,J e e ! P 1 m ! m mD LEGEND ® -SUBJECT PROPERTY W D Z Q Z 0 r 1 < u? i m I CD t m Im?m?m mlm miml ! i i 1 rmi ! rmi j ? n ? 1 ? rmi n im co CD im a, P ?a, a, m2!4-1-41 ._„_„_„_ ! ? 1 ? 1 ? I m i m m ! m I m I m? m i ° r? i r? i n 1? ro t ?i ! m imlmlmlmi m_ IF (r _THIRD STREET _ _,„_,_,_„_ m I N! n 1 e i v? !m in 0 to a i v 1 v i e a 'j i P ! C6 I P 1 P C6 C6 Lo I P !? al i M !?lr? ?i?,1 a i _ !mim ! m ! u? Lo 1 v i e I v a i a 1 1 m !i m Imimiml „_rrrriL,_„J SECOND STREET Im!mlm mim!m!m m! i m l WT m! m I m 1 1u ! m 1 m ! ! a! P o i 1 P i' 1 P 1 a 1.0 i i i 1 !!p i i 1 i P! T i 0m' ! P I(r I C ! r I 1 P ? i ff``ll r? 1 ro? ro N? j^ i? i n w ! e ° 1 ° 1 e i i m i i m l m FIRST STREET SANTA ANA TITLE- 3ETR.ENENT AGFEEMENT FOR LZ W A ? ?: CRAI?D AVENUE WVI X3M MWT NO: oerM NON-CX3?ERAL FUND) 25G-3 FOURTH STREET 25G-4 Exhibit 2 LOSS OF BUSINESS GOODWILL SETTLEMENT AGREEMENT This Agreement ("Agreement") is made by and between the City of Santa Ana, a public body, corporate and politic ("Agency") and ANTONIA GONZALEZ DBA LA ESTRELLITA ("Tenant"). The Agency and Tenant are hereinafter sometimes referred collectively as the "Parties." RECITALS A. Tenant operates a business, commonly known as La Estrellita, and was the occupant of real property located at 208B N. Grand Avenue, Santa Ana, CA (the "Property"). B. The Property is being acquired by the Agency for the Grand Avenue Widening Project. Tenant occupied the Property at the initiation of negotiations to acquire the fee interest of the Property. C. The Parties desire to resolve all issues relating to the Agency's acquisition of the Property 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 negotiated agreement between the parties. 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 Tenant the sum of $12,962.00 (Twelve Thousand Nine Hundred and Sixty-two Dollars) (Tenant Settlement Payment) as total compensation for goodwill loss. Upon full execution of this Agreement, the Agency will begin processing a payment, payable to "La Estrellita" in the amount of $12,962.00. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the Agency to Tenant for loss of business goodwill. (c) Tenant vacated the premises on March 22, 2013. 2. Release (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, I of 6 25G-5 of the Tenant, 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 related to any loss of business goodwill 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) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of Agency's actions or failure to act. (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 party 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 terms and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each party 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 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 any 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 2 of 6 25G-6 necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e) Tenant hereby represents and warrants 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 Tenant of any of the released claims, and that Tenant will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Agency has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Tenant will Hold Harmless and defend Agency, its employees, agents, contractors or representatives from any claims that may arise from Tenant's nondisclosure of any other interests in the Property or personal property referenced by 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 Tenant shall be authorized to enforce the provisions of this Agreement. 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 Invalidi 3 of 6 25G-7 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. 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 them, 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. 4of6 25G-8 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 Each party has cooperated in the drafting and preparation of this Agreement. 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. 17. Voluntary Agreement 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 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: Jason Gabriel Principal Engineer - Design Engineering City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Antonia Gonzalez 1322 N. Grand Avenue Santa Ana, CA 92701 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 5 of 6 25G-9 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 court, due to any diversity of citizenship between the Parties or due to the fact that either party 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. IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: Name Title Tax Identification No. Date CITY OF SANTA ANA BY: Kevin O'Rourke Acting City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City Attorney Dated Dated BY: Dated Jose Sandoval Chief Assistant City Attorney 6 of 6 25G-10