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1998-0928_JDK BUILDERS / KW CONCRETE_Settlement Agreement0 0 SETTLEMENT AGREEMENT ?HIS SETTL��XR EM T (herein "Agreement e is entered into as of the day of ,]�- � 1998, by and between JDK Builders and K.W. Concrete Pumping (herein "Tenants), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN JUAN CAPISTRANO, a public body, corporate and politic (herein) "Agency"). Recitals A. Agency acquired land for facilitating the development of the Los Rios Circulation Plan. B. The constructionof capital improvements by the City requires the vacation of the Premises by the Business, and Tenants have agreed to vacate the Premises and to accept the consideration specified in this Agreement as full compensation for all of their interests described in this Agreement. Agreements NOW, THEREFORE, in consideration of the promises of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Tenant, the Landlord and the Agency agree as follows: 1. DEFINITIONS a. "Relocation Assistance Law" means the legislative enactment set forth in California Government Code Section 7260 et seq. And all other statutes, case law, ordinances, regulations, and other laws of similar effect. b. "Goodwill" means the benefits that accrue to the Business as a result of its location, reputation for dependability, skill or quality, and any other circumstances resulting in the probable retention of old or acquisitionof new patronage, as defined in the California Code of Civil Procedure Section 1263.501(b). C. "Trade fixtures" means any machinery, apparatus, or equipment owned by Tenants, installed for their use on the Premises that cannot be removed without substantial economic loss or substantial damage to the Premises, regardless of the method of installation. d. "Personalty" means any tangible property, such as, but not limited to office furniture, filing cabinets, files, and other items owned by Tenants and which are either not affixed to any portion of the Premises or can be removed therefrom without substantial economic loss or without substantial damage to the Premises. e. "Tenant Occupation Area" means the Premises together with parking areas, common areas, and other areas which Tenants are permitted to occupy exclusively or in common with others under the terms of the Lease. 2. VACATION OF THE TENANT OCCUPATION AREA Tenants agrees that on or before 5 / 1998 (herein "Vacation Date"), Tenants and all of their employees, agents, contractors, permittees, and invitees (herein "Tenants' Parties") shall vacate the Tenant Occupation Area and leave the Tenant Occupation Area free of debris and obstructions caused by any of the Tenants' Parties and using their best efforts to not damage any Tenant Occupation Area or any other portion of the Project. The Lease shall automatically terminate on the Vacation Date. 3. COMPENSATION a. On t J� 1998, the Agency shall pay JDK Builders an amount equal to TWENTY THOUSAND DOLLARS ($20,000.00) AND K.W. Concrete Pumping an amount equal to ONE THOUSAND SEVEN HUNDRED SEVENTY-NINE DOLLARS ($1,779.00). b. Tenants agree that the payment received pursuant to subsection 3.a. above represents compensation for the full value of the Tenants' interest in the Premises and the Lease, and such payment constitutes full satisfaction on any and all obligations of the Landlord and/or the Agency to the Tenants, including, without limitation, any obligations for relocation assistance, relocation benefits, goodwill, compensation for trade fixtures and personalty, or damages of any nature. 4. TRADE FIXTURES AND PERSONALTY Landlord, Tenants and Agency acknowledge and agree that the trade fixtures and personalty of the Tenants are identified in Exhibit A, attached hereto and incorporated herein by this reference, and further agree as follows: a. Tenants shall be entitled to retain and remove such of the personalty as desired by Tenants, so long as such personalty is remove don or before the Vacation Date; b. All of the trade fixtures and such personalty as is not retained and removed by the Tenants shall be the property of the Agency on the Vacation Date, and the Agency shall have the right to remove and dispose of such trade fixtures and personalty; and C. Any of the trade fixtures and personalty not removed by the Agency within thirty (30) days of the Vacation Date shall be deemed to have been abandoned by the Agency and may be disposed of by the Landlord. 5. RELEASE Tenants hereby unconditionally and irrevocably release, forgive and absolutely forever discharge the Agency and the Landlord from any and all claims, complaints, demands, remedies, damages, obligations, liabilities, liens, judgments, awards, expenses, costs, accounts, reckonings, actions and causes of action of every kind and nature whatsoever, which arise out of or pertain, 2 9 0 directly or indirectly, to the Tenants' interests in the Premises and the Lease, whether now known or unknown, fixed or contingent, suspected or unsuspected, which Tenants now have, own or hold, or at any time heretofore had, owned or held so that Tenants shall have no claim of any nature whatsoever on or against the Agency or the Landlord, directly or indirectly, or any liability or supposed liability arising out of or pertaining to the Tenants' interests in the Premises and the Lease, except for the obligations arising under this Agreement. In giving the releases under this Section 5, Tenants hereby expressly waive and relinquish all rights and benefits afforded by California Civil Code Section 1542, as well as any similar law, statute, provision or policy in any other jurisdiction subsequently adopted in the State of California, and understand and acknowledge the significance of such specific waiver of California Civil Code Section 1542, which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." As used in this Section 5, the term "Landlord" shall be deemed to include Landlord and its shareholders, directors, managers, partners, direct and indirect interest holders, principals, direct and indirect parents, subsidiaries, and affiliates, and their respective successors, assigns, heirs, representatives, grantees, devisees, trusts, trustees, and beneficiaries of trusts, and each of their respect agents, contractors, employees, officers and attorneys and the term "Agency" shall mean each and every one of the Agency, the City of San Pablo, and their respective successors, assigns, representatives, agents, contractors, officers, employees and attorneys. 6. MISCELLANEOUS a. Successors and Assigns. Subject to any restrictions against assignment contained herein, this Agreement is binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. b. Professional Fees and Costs. In the event any action, arbitration or suit is brought by a party hereto against another party hereunder by reason of any breach of any of the covenants, agreements or provisions on the part of the other party or parties arising out of this Agreement, then in that event the prevailing party shall be entitled to have the recovery of and from the other party or parties of all costs and expenses of the action, arbitration or suit, actual attorney's fees, witnesses fees, and any other professional fees resulting therefrom. C. Entire Agreement. This Agreement (including all exhibits attached hereto) 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. 0 0 d. Time of Essence. The parties hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof. e. No Assignment by Tenants. Tenants may not assign all or any part of their rights under this Agreement without the prior written consent of the Agency. f Advice of Attorneys Independent Investigation. In executing this Agreement, the parties acknowledge that they have consulted with and had the advice and counsel of attorneys duly licensed to practice law in all the courts of the State of California and that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence. g. Further Acts. Each of the parties agrees to perform any further actions, execute and deliver any further documents and obtain consents, as may be reasonably requested to fully effectuate the purposes, terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. AV 1l �Ii 1 REDEVELOPMENT AGENCY OF THE OF SAN JUAN CAPISTRANO Scarborough, Executive Director 13 VL 0 COMMUNITY REDEVELOPMENT AGENCY AGENDA ITEM TO: George Scarborough, Executive Director FROM: Douglas D. Dumhart, Senior Management Analyst II March 3, 1998 SUBJECT: Consideration of Termination of Ground Leases with Paseo Adelanto Tenants RECOMMENDATION: By motion, approve the termination of ground leases and authorize the Executive Director to execute the necessary documents to effectuate the termination. SUMMARY: In 1987, the Redevelopment Agency purchased a parcel of land in the Los Rios Historic District known as the "Cappello property." The purchase was necessary to provide the land for the future Paseo Adelanto extension as envisioned in the circulation element of the Los Rios Precise Plan. During the interim period between acquisition and the actual development of Paseo Adelanto extension the Agency continued ground leases with two small businesses for storage purposes. The City is proceeding with the design and construction of the Paseo Adelanto extension. At this time it is necessary to initiate the removal of the Cappello property tenants to facilitate the goals and objectives of the Los Rios Precise Plan. Staff is recommending the Board of Directors approve the termination of the existing ground lease and serve the tenants with 90 -day notices to quit. BACKGROUND: In 1987, the Redevelopment Agency negotiated the purchase of Walter Cappello's property to provide the future right-of-way for the development of the Paseo Adelanto FCR CF. Y C®tSs'uCIL ACS: VAL 0 11 0 AGENDA ITEM -2- March 3, 1998 extension. Upon acquisition it was learned that the 1.9 acre lot had been sub -leased to seven small businesses for storage purposes by oral agreement with Mr. Cappello. The Agency continued to honor those arrangements in light of the fact that the acquisition of Mr. Trullis' property remain in order to construct the Paseo Adelanto extension. In 1992 the Agency required all seven tenants to execute 30 -day written ground leases. Only three chose to remain and executed the written leases. In July, 1996, one tenant was removed and only two remain today. They are Modern Tree and Kelly Ware Concrete Pumping. State guidelines require the Agency provide a relocation assistance advisory program for these businesses. The Agency employs Pacific Relocation Consultants (PRC) to oversee these matters. PRC has contacted the tenants to determine their needs, itemize personal property and tangible fixtures, plus advise them of their benefits. In accordance with Section 6040 of the State guideline, PRC is advising the Agency serve the tenants with 90 - day notices. At this time staff is seeking Board approval and authorization to do so. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: No review necessary. FINANCIAL CONSIDERATIONS: PRC is unable to identified compatible locations in the City of San Juan Capistrano to relocate these businesses. There is very little substance to be moved and miscellaneous compensables are a nominal amount which has been budgeted. A simple in -lieu payment will probably be the resulting assistance package. NOTIFICATION: Steve Oliver PACIFIC RELOCATION CONSULTANTS 100 West Broadway, Suite 300 Long Beach, CA 90802 Jim Klinger MODERN TREE 26431 Calle Lucana San Juan Capistrano, CA 92675 Kelly Ware JDK BUILDERS & K.W. CONCRETE PUMPING Post Office Box 416 Dana Point, CA 92629 • • ! AGENDA ITEM - 3 - March 3, 1998 ALTERNATE ACTIONS: By motion, approve the termination of ground leases and authorize the Executive Director to execute the necessary document to effectuate the termination. By motion, approve the termination of ground leases subject to modifications and authorize the Executive Director to execute the necessary document to effectuate the action. 3. By motion, continue item and refer to staff for additional information. RECOMMENDATION: By motion, approve the termination of ground leases and authorize the Executive Director to execute the necessary document to effectuate the termination. Respectfully submitted, 474 4O�G4w� Douglas D. Dumhart Senior Management Analyst II DDD:jr 0 C WGENDAS\1998\3-3TNANT. CRA 0 0 AYES Directors Swerdlin, Greiner, Jones, Campbell, and Chairman Hart NOES: ABSENT: None The Minutes of the Regular Meeting of February 3, 1998, re approved as submitted. Director Greiner abstained due to his absence from the February 3hioieeting. 2. RECEIVE AND FILE WARRANTS OF FEBRUARY 12. 1998 (300.30) The List of Demands dated February 12, 1998, in the total amount of $1 ordered received and filed. ^�,3TERMINATION OF GROUND LEASES WITH PASEO ADELANTO TENANTS (KELLY WARE CONCRETE PUMPING AND MODERN TREE SERVICES 600.40 As set forth in the Report dated March 3, 1998, from the Senior Management Analyst II, the following actions were approved, with Director Jones abstaining due to the proximity of his residence/business: (1) the ground leases with Modern Tree, and JDK Builders & K.W. Concrete Pumping were terminated, (2) the tenants will be sewed with 90 -day notices to quit; and, the Executive Director was authorized to execute the necessary documents to effectuate the termination. The Report advised that the "Cappello" property had been purchased to provide for the future northerly extension of Paseo Adelanto, as envisioned in the circulation element of the Los Rio Precise Plan. The property had been sub -leased to seven small businesses for storage purposes, at present only two businesses remain leasing the property for storage purposes. The Report advised that the businesses would be provided relocation assistance. Public Input (1) James Klinger, Modem Tree, 26431 Calle Lucana, expressed appreciation for use of the lot. He advised that he might not be able to vacate the property in 90 days if it continues to rain, because the lot he will be relocating to requires grading, which has not occurred due to ground conditions. He asked that an additional 30 -day leeway be granted if the rains continue. He expressed concern that cities have essentially eliminated small contractors in south Orange County through zoning that does not allow "small contractor lots." He noted the benefits provided by local small contractors and suggested consideration be given to the situation. (2) John Ware, JDK Builders, 33801 Malaga Orive, Dana Point, concurred with Mr. Klinger and also requested an additional 30 days. He described problems he has CRA Minutes -2- 3/3/98 MARCH 3, 1998 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS CLOSED SESSION (610.85) The Board met in a Closed Session at 5:30 p.m. for the following purposes, as authorized by statute: Pursuant to Government Code section 54956.8, the Board of Directors will meet with its property Negotiator (Executive Director) regarding the status of acquisition of possible easement rights at the location of 31731 Los Rios Street, San Juan Capistrano (Property Owner: Alan and Claudia Niccola) RECESS UNTIL 7:00 P.M. BUSINESS SESSION The Regular Meeting of the Board of Directors of the City of San Juan Capistrano Redevelopment Agency was called to order by Chairman Hart at 7:40 p.m. in the City Council Chamber. The City Attorney had previously indicated there were no actions to report from the Closed Session. ROLL: PRESENT: Wyatt Hart, Chairman David M. Swerdlin, Vice Chairman Collett Campbell, Director John Greiner, Director Gil Jones, Director ABSENT: None STAFF PRESENT: George Scarborough, Executive Director; John Shaw, Interim Agency Counsel; Cynthia L. Pendleton, Finance Officer; Cheryl Johnson, Agency Secretary; Jennifer Murray, Assistant City Manager; William Huber, Director of Engineering and Building Services; Amy Amirani, Public Works Director; Al King, Director of Community Services; Bill Ramsey, Senior Planner; Lt. Paul Sullivan, Orange County Sheriffs Department; Dawn Schanderl, Deputy City Clerk. CONSENT CALENDAR It was moved by Director Swerdlin, seconded by Director Campbell, that the staff recommendations be accepted for the following items listed on the Consent Calendar, noting that Director Greiner would be abstaining on the minutes and Director Jones would be abstaining on Item No. 3. The motion carried by the following vote: CRA Minutes 1- 3/3/98 encountered in trying to relocate and cited willingness to work with the Executive Director. Chairman Hart directed that the Executive Director meet with Mr. Klinger and Mr. Ware regarding their requests. - None There being no further business be e the Board, the meeting was adjourned at 7:52 p.m. to the next regular meeting date of Tuesday, Mar 7, 1998, at 5:30 p.m., in the City Council Chambers. submitted, CHERYL JOHNSON, AGE SECRETARY ATTEST: WYATT HART, CHAIRMAN CRA Minutes -3- 3/3/98