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HomeMy WebLinkAboutSAGE RESTAURANT GROUP LLC; SASSPAL - 2013A-2013-050 SETTLEMLNT AGREEMENT .AND GENERAL RELEASE I his Settlement Agreement and General Release ("Agreement") is entered into as ofthe dae of March, 2013. for reference purposes only, by and between Sage Restaurant Group, LLC and Sonny Sasspal, individually and as a principal of sage Restaurant Group, LLC (collectively the "Business Owm,rs") and the City of Santa Ana, a charter law city and municipal corporation ("City"). The Busim ss Owners and City are vinctuncs rcten'ed tojointly as the "Parties." RF.CLTALS WI IFREAS, CI"fY is undertaking a transportation improvement project generally identified as the Grand Avenue Widening Project (the "Project") which is intended to advance public safety and convenience by decreasing tniftic congestion through the widening of'Orand Avenue between First and I;ourth Streets in the City ot.Sania Ana: WHEREAS, CITY (tirc?1R.%Ld A.ssesx)r Parcel Nos. 398-45412 and ')98-454-13. which properly is improved by a comn'-ercial retail building and parking lot located at 1221 East First Street. City of Santa Ana. Cakfirrnia 92 7()l (the "Subject Property"): WHE.RFAS, the Business Owners arc currently in possession ofa portion of the Subject Properly commonly describec as 1221 Fast First Street. Strata Ana. California 93701 (the "Leased Premises'); WHEREAS, the Business Owners operate a Suhway restaurant on the Leased Premises identified as Subway # 3110' (the "Business")_ WHEREAS the consa.iction and use afthe Pr0je0 in the manner proposed may disrupt ingress and egress to and par-kii far the Leased Premises causing the Planes to conclude that the Business will not be viable during and alier the construction and use of Cl FY's Project. WH F,REAS the Partic i wish to avoid the cost oflltigation and, instead, resolve Nty and all disputes. issues and claims re?ultutg from or arising out of the activities of CITY stenurung from the Project, the termination o fthe lease to the I eased Premises. the timing of possession and the relocation of the Business a, more particularly described in the release section ol'this Agreement: W1 IFREAS, the Pari ies wish to resolve this matter in a manner that is mutually beneficial to loth Parties; NOW, I H7::REFORE 1 1 IS 111iRFBY AGREED AS FOLLOWS: The recitals !et forth above are true, correct and incorporated herein by this reference. 3612:25.2 2. This Agreement is subject to execution by the CITY and shall become binding and effective as of the date of said execution, 3. CITY will pay to the Business Owners one lump sum payment in the amount of Three Hundred Eighty-Two Thousand Dollars and no cents ($382,000.00) in full and final settlement of any and all claims of the Business Owners relating to CITY's acquisition of the Subject Property, relocation of the Business and the construction and use of the Project in the manner proposed. 4. The payment referenced in the preceding paragraph shall be made by check or other negotiable instrument payable to Sage Restaurant Group, LLC on or before April 30, 2013. 5. As consideration of the compensation to be paid under this Agreement, the Business Owners release CITY in the manner described in paragraph 8 below for all matters set forth therein. 6. As further consideration of the compensation to be paid under this Agreement, the Business Owners agree to vacate and surrender to CITY the Leased Premises on or before April 30, 2013. The Parties agree that CITY has the right to immediately remove all persons, obstacles, improvements, or structures of every kind or nature situated on the area of the Leased Premises beginning May 3, 2013. 7. The Parties further agree that (assuming all compensation referred to herein has been paid) in the event the Business Owners do not vacate the Leased Premises on or before April 30, 2013, CITY shall be entitled to appear in the Orange County Superior Court on an ex parte basis, without further notice to the Business Owners, to secure an immediate writ of possession of the Leased Premises under California Code of Civil Procedure section 712.010. The Business Owners do not object to the entry of an ex parte order granting CITY an immediate writ of possession of the Leased Premises under Code of Civil Procedure section 712.010 after May 3, 2013 (assuming CITY has fulfilled its obligation by paying the full settlement amount as set forth in paragraph 4, above). Release. The Business Owners, collectively and individually, for and in consideration of the covenants made by CITY and compensation received under this Agreement, do hereby for themselves, and each of their heirs, executors, administrators, successors, assigns and partners, release, acquit and forever discharge CITY and each of its administrators, successors, predecessors, assigns, partners, officers, directors, agents, servants, attorneys, employees, affiliates, sureties, and representatives (collectively "Releasees") from any and all rights, claims, warranties, demands, debts, obligations, liabilities, actions, damages, costs, expenses and other claims -2- 36122292 whatsoever which any of them might have asserted against Releasees, regardless of whether known or unknown, in law or in equity arising from, relating to, or resulting from CITY's acquisition of the Subject Property, relocation of the Business and the construction and use of the Project in the manner proposed (the "Released Claims"). The Released Claims shall include, without limitation, any and all claims, known and unknown, under the Eminent Domain Law as set forth in the California Code of Civil Procedure commencing with section 1230.010 (e.g., CITY's right to take the Subject Property, compensation for the fair market value of the property interests acquired by CITY, pre-condemnation damages and/or blight, damages to Business Owners' Business and/or remaining property interests by virtue of CITY's acquisition of the Subject Property and/or the construction and use of the Project in the manner proposed, leasehold bonus value, loss of or damage to the Business Owners' business goodwill, lost profits, losses of or damages to the furnishings, fixtures and equipment of the Business, losses of or damages to the improvements pertaining to the realty, losses arising from the removal and/or relocation of other tenants of the Subject Property, and any and all damages and losses of every kind and nature caused by or in connection with CITY's actions and acquisition activities connected with or arising from the Project. The Released Claims shall further include, without limitation, any and all claims, known and unknown, that either were or could have been asserted by the Business Owners, collectively and individually, based on inverse condemnation, pre-condemnation damages, attorney fees and costs, and claims for relocation advisory and/or assistance payments pursuant to the California Government Code and California and Federal Code of Regulations. The provisions of this paragraph shall hereinafter be referred to as the "Release." 9. Waiver of Section 1542. It is understood and agreed by the Business Owners, collectively and individually, that the facts with respect to which the Release provided in this Agreement is given may differ from the facts now known or believed to be true by the Business Owners, or either of them The Business Owners, collectively and individually, hereto expressly assume the risk that the facts might be different than they now appear, and agree that the foregoing Release shall be, in all respects, effective and not subject to termination or rescission by any such difference in facts. The Business Owners, collectively and individually, hereby expressly waive any and all rights the Business Owners have or may have under California Civil Code Section 1542, which provides as follows: 3612229.2 3- "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 OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." The Business Owners, collectively and individually, hereby waive and relinquish all rights and benefits conferred upon them by the provisions of Civil Code section 1542 to the full extent they may lawfully waive such rights and benefits pertaining to the released claims as set forth in the preceding paragraph. The Business Owners, collectively and individually, represent and warrant that they have been given an opportunity to discuss with their counsel the effect of a waiver of the protections afforded by California Civil Code section 1542. 10. The Business Owners, collectively and individually, hereby warrant and represent that they own, fimmiture, fixtures, equipment and inventory for which they are being compensation under this Agreement and for which they are granting the Release. The Business Owners, collectively and individually, fimrther warrant and represent that they have not assigned any rights in or to said interests/property and that no claims exist of equipment lessors or third parties with any type of security interest in said interests/property. 11. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and may not be modified except by an instrument in writing signed by the party against whom enforcement is sought. 12. The Business Owners, collectively and individually, may not assign all or any part of the Business Owners', or either oftheir, rights under this Agreement without the prior written consent of CITY which shall not be unreasonably withheld. 13. The Parties shall each bear their own respective attorney fees and costs in connection with the matters described in the Agreement. However, in the event any party to this Agreement files an action or proceeding to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its reasonable attorney fees and costs in connection therewith. 14. Each of the Parties agree to perform any fimrther actions, execute and deliver any fii Cher documents and obtain consents, as may be reasonably requested to fully effectuate the purposes, terms and conditions of this Agreement. -4- 3ei22292 15. The Parties acknowledge that they are voluntarily entering into this agreement for the consideration set forth above. The Parties acknowledge that they have been advised by or have had the opportunity to consult with legal counsel in connection with the granting of the releases contained in this agreement. 16. This Agreement shall be construed and enforced in accordance with the laws of the State of Cahfomia. 17. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one agreement. To facilitate execution of this Agreement, the Parties may execute and exchange facsimile and electronic (i.e., email) counterparts of the signature pages, and facsimile and electronic (i.e., email) counterparts shall serve as originals. 18. This Agreement shall be binding on the Business Owners, collectively and individually, together with their respective predecessors and successors in interest, heirs and assigns, and shall inure to the benefit of the Releasees and their respective successors, transferees, assigns, agents, representatives and legal representatives. 19. Each individual executing this Agreement on behalf of an entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity, and that all necessary approvals or actions have been taken to approve and authorize the execution of this Agreement by said individual. 20. This Agreement was jointly prepared by all of the Parties and shall not be construed against any particular party, nor shall any uncertainty or ambiguity be construed against any one party. This Agreement shall be construed as if it was jointly prepared by all of the Parties. 21. In the event any provision of this Agreement shall be held to be void, voidable or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. 22. Provided this Agreement is executed by the CITY, the Agreement may be enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by any other procedure permitted by law in the Superior Court of Orange County. 3612229.2 -5- IN WI fMiSS WI IER-1 OF. the Parties hereto have executed this Agreement as of the date first above written. Dated: 4 1 4: N Z % , 2013 SAW. Rl:STAIRAN I' GROUP. 11C Sonny Sasspal Its: NIhNAC?in1/i_424uG2 Dated: , ?013 CI 'I Y01- SANTA ANA. a charter law city and municipal corporation. duly organized and exisdne under the Constitution and laws of the State of California E3v: Kcvm C oiirke, Cit}' Manager ATTEST: Dated' N- 3 2013, APPROVED AS TO FORM: Matta D. IIuizat, Clerk the Council Dated: ?r Z? t 2013 Dated: f l/itltf?G? 2013 e 122 r).z NL[W'MEYFR & DILL.ION UP By: _ C'lla les S. Kroltkowski Lsq., Attorneys for Defendants. SONNY SASSPAL and SAGF RE:S'I ARRAN"1' GROI IP, L.LC SONIA CARVALIIO City Attorney Citv of Santa Ana 13v:_-. ._.- ose .'andoval, Issy., Chief Assistant y Attorney b-