14-H TO: ATTENTION: FROM: SUBJECT: Honorable Mayor and Members of the City Council Jeffrey L. Stewart, City Manager Len Gorecki, Assistant City Manager/Director of Public Works Consideration and possible action to authorize the City Manager to execute Agreement File No. 723.1 with Leonard and Silvana Braka (dba Ricci's Italian Deli and Restaurant) and Agreement File No. 763.1 with Cynthia Garcia (dba Super Bionicos La Fiesta), in a form approved by special legal counsel, for the compensation of the potential loss of goodwill following their relocation, as it relates to the Bellflower Boulevard Widening Project, between Artesia Boulevard and SR-91. DATE: November 27, 2017 EXECUTIVE SUMMARY Approval of Agreement File No. 723.1 (AFN) with Leonard and Silvana Braka (dba Ricci s Italian Deli and Restaurant) and Agreement File No. 763.1 with Cynthia Garcia (dba Super Bionicos La Fiesta) will authorize payment for the loss of goodwill to each respective party, as it relates to their displacement caused by the Bellflower Boulevard Widening Project. RECOMMENDATION TO CITY COUNCIL 1) Authorize the City Manager to execute AFN 723.1 and AFN 763.1, in a form approved by special legal counsel; or 2) Alternatively, discuss and take other action related to this item. FISCAL IMPACT The total goodwill compensation payable to the Brakas per AFN 723.1 is $92,000. The total goodwill compensation payable to Ms. Garcia per AFN 763.1 is $17,000. Sufficient funds for each agreement are budgeted using Measure R Highway Programs Grant funds in the Bellflower Boulevard Widening Project Account No. 030-47654-9000. Page 1 of 2
Staff Report AFN 723.1 with Leonard and Silvana Braka (Ricci s) and AFN 763.1 with Cynthia Garcia (Super Bionicos La Fiesta) November 27, 2017 Page 2 of 2 DISCUSSION On September 22, 2017, the City purchased a 14-foot wide segment of property situated along the eastern length of 17305 and 17311-17317 Bellflower Boulevard. The segment is necessary to build the Bellflower Boulevard Widening Project and is improved with a commercial building on site. The City has assumed the existing leases in the building for Ricci s owners Leonard and Sylvana Braka and Super Bionicos owner Cynthia Garcia and has been working with both tenants to relocate their businesses to replacement sites. Part of the City s relocation efforts require payment for the loss of goodwill, which can be defined as the benefits that accrue to a business due to its location; reputation for dependability, skill, or quality; and any other circumstances resulting in the retention of existing clients or acquisition of new ones. To this end, the City hired an appraisal firm, Desmond, Marcello & Amster to conduct a formal goodwill appraisal for Ricci s on February 2016 and Super Bionicos on May 2017. The appraised values for Ricci s and Super Bionicos were $92,000 and $17,000, respectively, and Staff recommends paying these values by executing AFN 723.1 with the Brakas of Ricci s and AFN 763.1 with Ms. Garcia of Super Bionicos. ATTACHMENTS AFN 723.1 with Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant)... 3 AFN 763.1 with Cynthia Garcia (Super Bionicos La Fiesta)... 20
AGREEMENT FILE NO. 723.1 GOODWILL SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF BELLFLOWER AND LEONARD AND SILVANA BRAKA This Settlement Agreement and Release ("Agreement") is made by and between the CITY OF BELLFLOWER, a general law city and municipal corporation ("CITY") and LEONARD AND SILVANA BRAKA, ("DISPLACEE"), on behalf of itself and its parent, sister and/or related corporation(s) or company(ies), affiliates, divisions, subsidiaries, predecessors and successors, as applicable. Hereinafter, DISPLACEE and CITY shall be referred to as Party or collectively as the "Parties.'' RECITALS This Agreement is made with respect to the following facts that are acknowledged as true and correct by the Parties: WHEREAS, DISPLACEE previously had a lease ("Lease") in regard to certain real property interests located at 17317 Bellflower Boulevard, Bellflower, California (the "Property"), at which location DISPLACEE operates Ricci s Italian Restaurant and Deli ( Business ); and WHEREAS, in order to carry out the functions and requirements of the State of California Relocation Assistance and Real Property Acquisition Guideline and Government Code section 7267.2(a), and to implement its plan for the construction of the Bellflower Boulevard Widening Project ("Project"), CITY has entered into an agreement to acquire fee title to the Property pursuant to a Purchase and Sale agreement, which is subject to the Lease; and WHEREAS, CITY has determined it necessary to terminate DISPLACEE's Lease to facilitate construction of the Project; and WHEREAS, DISPLACEE has found a relocation site for the Business; and will be required to close its existing Business located at the Property before the Relocation site will be available for occupancy. WHEREAS, CITY has caused an evaluation of the potential Goodwill Loss to be prepared by a Goodwill appraisal firm, Desmond, Marcello & Amster, with a date of value of February 2016, and is the basis for this Settlement Agreement. WHEREAS, DISPLACEE contends that, as a result of the foregoing, it is entitled to the following: (a) Compensation under Article 6 of Chapter 9 of Title 7, Part 3 of the Code of Civil Procedure (commencing at Section 1263.510) for loss of business goodwill ("Goodwill Claims"); (b) Compensation for damages to the value of DISPLACEE's Lease in regard to the Property, if any ("Bonus Value Claims"); NOW, THEREFORE, to fully and completely settle DISPLACEE's claims against CITY in regard to CITY's acquisition of DISPLACEE's interests in, and DISPLACEE's relocation from, the Property, and in consideration of the promises, covenants and representations contained herein, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by and between the Parties, the Parties agree as follows: 4584823.1 -- N1612.1 Page 1 of 6
City of Bellflower Agreement File No. 723.1 Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant) Page 2 of 6 1. NO ADMISSION OF LIABILITY This Agreement is a compromise and is not intended to be, nor shall it be construed as, an admission of liability by any party to any other party. 2. VACATION OF PROPERTY: REMEDIES The Parties agree that, on or before January 31, 2018, DISPLACEE will surrender possession of the Property to CITY free of any and all occupants and claims to occupancy, which surrender shall include turning over all sets of keys to either the CITY or the CITY's relocation agent, and signing a Certificate of Abandonment. The actual date on which DISPLACEE has, to CITY's satisfaction, completed the obligations set forth in this Section shall be referred to in this Agreement as the "Vacation Date." Should DISPLACEE fail to timely vacate the Property as set forth herein, then CITY shall thereafter be entitled, without limitation to other legal remedies or objection by DISPLACEE, to file and immediately thereafter obtain an order and judgment in an unlawful detainer action judgment granting CITY possession of the Property by having the appropriate authority execute a Writ of Possession (Code of Civil Procedure section 712.010, et seq.) and remove DISPLACEE from the Property. DISPLACEE will be responsible for any and all attorneys' fees and costs incurred by CITY in its reasonable and successful attempts to remove DISPLACEE and any other occupants from the Property after January 31, 2018. CITY will not be responsible for any fixtures, machinery, equipment, inventory or items of personal property that remain following DISPLACEE's voluntary or involuntary surrender of its possession of the Property. Any fixtures, machinery, equipment, inventory or items of personal property remaining on the Property following DISPLACEE's surrender of its possession of the Property or after DISPLACEE's removal from the Property by CITY or by the levying officer will be deemed abandoned, and may be removed and/or disposed of in any manner that CITY, or its agent, sees fit. 3. HOLDOVER RENT Starting February 1, 2018, and every day thereafter in which DISPLACEE remains in occupancy of the Property, DISPLACEE will be liable to CITY at the rate of $7,500 per month, or $250 per day, for any partial month, until the date the Property is vacated pursuant to Section 2 of this Agreement. Displacee Initials 4584823.1 -- N1612.1 4. PAYMENT The Parties have entered into a separate self-move agreement to address the relocation benefits DISPLACEE may be entitled to. CITY shall pay DISPLACEE the total sum of NINETY-TWO THOUSAND DOLLARS AND NO/100 ($92,000.00) (hereinafter, the "Goodwill Payment"). The Payment shall be made out to "Leonard & Silvana Braka". CITY will make a first payment of the Goodwill Payment to DISPLACEE in the amount of SIXTY THOUSAND DOLLARS ($60,000) within fifteen business days of City s acceptance and execution of this agreement by sending the payment to Pierce Law Firm, 1440 N. Harbor Blvd., Suite 900, Fullerton CA 92835. Upon the Vacation Date, the CITY will process the final payment in the amount of
City of Bellflower Agreement File No. 723.1 Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant) Page 3 of 6 THIRTY-TWO THOUSAND DOLLARS ($32,000), less any Holdover Rent as set forth in Paragraph 3 above. DISPLACEE acknowledges that the Payment is inclusive of, and amounts to full and complete satisfaction of compensation for Goodwill Claims, F&E Claim and Bonus Value Claims (collectively, the Claims ), and each of them, to which DISPLACEE may be entitled. 5. DISCLAIMER, WAIVER AND RELEASE The Payment represents full payment and just compensation for DISPLACEE's Goodwill Claims and Bonus Value Claims, for DISPLACEE's vacation of the Property, and for all damages of every kind and nature suffered, or claimed to be suffered, by reason of the CITY's acquisition of DISPLACEE's interests in the Property related to DISPLACEE s Goodwill Claims and Bonus Value Claims. In exchange for the Payment, DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, knowingly and voluntarily waives, releases and discharges CITY from liability or responsibility for or related to any right DISPLACEE has, has had, or may in the future have to any claim for additional compensation or damages or liability of any kind, whether known or unknown, foreseen or unforeseen, relating in any way to or arising out of: [i] CITY's acquisition of the Property, and/or related to DISPLACEE s Goodwill Claims and Bonus Value Claims. In that regard, DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, knowingly and voluntarily and specifically waives and releases CITY, and any and all of CITY's employees, agents, officers, servants, representatives, contractors, attorneys and assigns, from liability as to the following: claims for loss of business goodwill, the Goodwill Claims and/or lost profits, lost rents, the Bonus Value Calims, and attorney's fees, expert fees or any litigation expenses and/or costs related to said claims. 6. WAIVER OF CODE OF CIVIL PROCEDURE 1542 With respect to each of the releases set forth in this Agreement the Parties acknowledge that they are familiar with the provisions of California Civil Code Section 1542, which is expressly understood by each party hereto to provide as follows: "CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE - 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." 4584823.1 -- N1612.1
City of Bellflower Agreement File No. 723.1 Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant) Page 4 of 6 The Parties, on their own behalf and their predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, being aware of Section 1542 hereby expressly waives any and all rights each may have thereunder, as well as under any other statute or common law principles of similar effect. I HAVE READ AND UNDERSTOOD THE FOREGOING WAIVER OF RIGHTS UNDER CIVIL CODE SECTION 1542. Displacee Initials City Initials 4584823.1 -- N1612.1 7. RIGHT OF ENTRY DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, hereby grants permission to CITY and/or its employees, contractors, agents and assigns, to enter upon the Property for the purpose of determining the presence of hazardous materials and for any other pre-demolition coordination activities that may be necessary thereto, provided that such entry into the Property shall be preceded by twenty four (24) hours written Notice of Intent to Enter delivered to DISPLACEE, and CITY shall not commence demolition or removal of Improvements prior to the Vacation Date. The right of entry permission granted herein shall continue in effect until the Vacation Date. CITY shall indemnify, defend and hold DISPLACEE harmless from and against any damages, liabilities, judgments, claims, expenses, and penalties resulting from CITY's use of this right of entry by CITY and its agents, contractors, and employees. 8. NO OTHER OCCUPANTS DISPLACEE warrants that it is the only occupant of the Property, in their perspective physical address, suite or unit number, and there are no claims to occupancy or possession of the Property by any other lessee, occupant or other third party other than DISPLACEE. Likewise, DISPLACEE agrees not to assign, transfer or sell to any third party any right, title or interest in the Property. In the event that after the Vacation Date, CITY is required to take action, legal or otherwise, to remove any lessee, occupant or third party from the Property, DISPLACEE will indemnify and hold CITY harmless as to any and all amounts incurred or expended by CITY including, but not limited to, relocation costs, claims of just compensation and/or damages (including loss of goodwill) claimed by any lessee, third party or occupant, as well as attorneys' fees and costs expended by CITY related thereto, unless that that third party took possession after the Vacation Date. 9. ENTIRE AGREEMENT This Agreement contains the entire agreement and understanding with independent legal counsel and each Party has secured independent advice concerning every aspect of this Agreement and the rights and liabilities each is hereby relinquishing. 10. CONSULTATION WITH LEGAL COUNSEL All Parties to this Agreement represent that each has consulted with independent legal counsel and/or each has secured independent advice concerning every aspect of this Agreement and the rights and liabilities each is hereby relinquishing.
City of Bellflower Agreement File No. 723.1 Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant) Page 5 of 6 11. REMEDIES CITY and DISPLACEE may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of this Agreement including, but not limited to, an action for specific performance. In the event of a breach, any forbearance on the part of any party to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach. 12. ATTORNEYS' FEES AND COSTS Except as otherwise set forth in this Agreement, each party hereto shall bear its own legal fees, expert fees and litigation costs arising out of any and all claims which have been settled by the terms of this Agreement. In the event an action or proceeding is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees for that action. 13. AMENDMENTS No amendment, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby. 14. CONSTRUCTION OF AGREEMENT The Parties agree that this Agreement was jointly prepared through negotiations of the Parties and the provisions of the Agreement are not to be strictly or liberally construed for or against any of the Parties. 15. AUTHORITY The Parties represent and warrant that they have not assigned to any other entity all of the matters, rights and claims as set forth in this Agreement. Each of the undersigned represents and warrants that it has, on behalf of the entity for whom the undersigned is signing, the express authority to enter into, bind, release and waive, all of the matters rights and claims as set forth in this Agreement with respect to itself. 16. COUNTERPARTS AND FACSIMILE SIGNATURES The Parties agree that this Agreement may be executed in counterparts and that each fully executed copy of the Agreement shall have the same binding force and effect as an original. The Parties further agree that facsimile or electronic copies of signatures shall have the same force and effect as original signatures. 17. NOTICES All notice or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, facsimile machine or overnight courier and shall be deemed received upon the earlier of (i) if personally delivered or emailed, the date of delivery to the address of the person to receive such notice, (ii) if mailed, three (3) business days after the date of posting by the United States Post Office, (iii) if sent by overnight courier, when delivered to the specified address, or (iv) if given by fax or email, when sent. 4584823.1 -- N1612.1
City of Bellflower Agreement File No. 723.1 Leonard and Silvana Braka (Ricci s Italian Deli and Restaurant) Page 6 of 6 To City: To Displacee: City of Bellflower 16600 Civic Center Drive Bellflower, CA 90706 Attn: Len Gorecki E-mail: Lgorecki@bellflower.org Leonard and Silvana Braka 9453 Walnut Street Bellflower, CA 90706 E-mail: Lbraka@verizon.net 18. JURISDICTION Each of the undersigned, as well as the Parties on whose behalf the undersigned are signing, consents to personal jurisdiction over each of them by the courts of the State of California. 19. GOVERNING LAW AND VENUE This Agreement will be construed in accordance with, and governed by, the laws of the State of California as applied to contracts that are executed and performed entirely in California. The parties agree that any action arising out of this Agreement may be venued in Los Angeles County, California. IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed on the day and year mentioned hereunder. CITY OF BELLFLOWER RICCI S ITALIAN RESTAURANT AND DELI Jeffrey L. Stewart, City Manager Leonard Braka, Owner ATTEST: Silvana Braka, Owner Mayra Ochiqui, City Clerk APPROVED AS TO FORM: Andrew M. Jones, Special Legal Counsel AlvaradoSmith Exhibit: Support Documentation: DM&A Goodwill Report 4584823.1 -- N1612.1
AGREEMENT FILE NO. 763.1 GOODWILL SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF BELLFLOWER AND CYNTHIA GARCIA This Settlement Agreement and Release ("Agreement") is made by and between the CITY OF BELLFLOWER, a general law city and municipal corporation ("CITY") and CYNTHIA GARCIA, ("DISPLACEE"), on behalf of itself and its parent, sister and/or related corporation(s) or company(ies), affiliates, divisions, subsidiaries, predecessors and successors, as applicable. Hereinafter, DISPLACEE and CITY shall collectively be referred to as the "Parties.'' RECITALS This Agreement is made with respect to the following facts that are acknowledged as true and correct by the Parties: WHEREAS, DISPLACEE previously had a lease ("Lease") in regard to certain real property interests located at 17311 Bellflower Boulevard, Bellflower, California (the "Property"), at which location DISPLACEE operates SUPER BIONICOS LA FIESTA ( Business ); and WHEREAS, in order to carry out the functions and requirements of the State of California Relocation Assistance and Real Property Acquisition Guideline and Government Code, Paragraph 7267.2(a), and to implement its plan for the construction of the Bellflower Boulevard Widening Project ("Project"), CITY has entered into an agreement to acquire fee title to the Property pursuant to a Purchase and Sale agreement, which is subject to the Lease; and WHEREAS, CITY has determined it necessary to terminate DISPLACEE's Lease to facilitate the Project; and WHEREAS, DISPLACEE has found a relocation site for the Business; and will be required to close its existing Business located at the Property before the Relocation site will be available for occupancy. WHEREAS, CITY has caused an evaluation of the potential Goodwill Loss to be prepared by a Goodwill appraisal firm, Desmond, Marcello & Amster, with a date of value of May 2017, and is the basis for this Settlement Agreement. WHEREAS, DISPLACEE contends that, as a result of the foregoing, it is entitled to the following: (a) Compensation under Article 6 of Chapter 9 of Title 7, Part 3 of the Code of Civil Procedure (commencing at Section 1263.510) for loss of business goodwill ("Goodwill Claims"); (b) Compensation for damages to the value of DISPLACEE's Lease in regard to the Property, if any ("Bonus Value Claims"); NOW, THEREFORE, to fully and completely settle DISPLACEE's claims against CITY in regard to CITY's acquisition of DISPLACEE's interests in, and DISPLACEE's relocation from, the Property, and in consideration of the promises, covenants and representations contained herein, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by and between the Parties, the Parties agree as follows: 1. NO ADMISSION OF LIABILITY This Agreement is a compromise and is not intended to be, nor shall it be construed as, an admission of liability by any party to any other party. 4584829.1 -- N1612.1 Page 1 of 6
City of Bellflower Agreement File No. 763.1 Cynthia Garcia (Super Bionicos La Fiesta) Page 2 of 6 2. VACATION OF PROPERTY: REMEDIES The Parties agree that, on or before January 31, 2018, DISPLACEE will surrender possession of the Property to CITY free of any and all occupants and claims to occupancy, which surrender shall include turning over all sets of keys to either the CITY or the CITY's relocation agent, and signing a Certificate of Abandonment. The actual date on which DISPLACEE has, to CITY's satisfaction, completed the obligations set forth in this Section shall be referred to in this Agreement as the "Vacation Date." Should DISPLACEE fail to timely vacate the Property as set forth herein, then CITY shall thereafter be entitled, without limitation to other legal remedies or objection by DISPLACEE, to file and immediately thereafter obtain an order and judgment in an unlawful detainer action judgment granting CITY possession of the Property by having the appropriate authority execute a Writ of Possession (Code of Civil Procedure section 712.010, et seq.) and remove DISPLACEE from the Property. DISPLACEE will be responsible for any and all attorneys' fees and costs incurred by CITY in its reasonable and successful attempts to remove DISPLACEE and any other occupants from the Property after January 31, 2018. CITY will not be responsible for any fixtures, machinery, equipment, inventory or items of personal property that remain following DISPLACEE's voluntary or involuntary surrender of its possession of the Property. Any fixtures, machinery, equipment, inventory or items of personal property remaining on the Property following DISPLACEE's surrender of its possession of the Property or after DISPLACEE's removal from the Property by CITY or by the levying officer will be deemed abandoned, and may be removed and/or disposed of in any manner that CITY, or its agent, sees fit. 3. HOLDOVER RENT Starting February 1, 2018 and every day thereafter in which DISPLACEE remains in occupancy of the Property, DISPLACEE will be liable to CITY at the rate of $7,500 per month, or $250 per day, for any partial month, until the date the Property is vacated pursuant to Section 2 of this Agreement. Displacee Initials 4. PAYMENT CITY shall pay DISPLACEE the total sum of SEVENTEEN THOUSAND DOLLARS AND NO/100 ($17,000.00) (hereinafter, the "Payment"). The Payment shall be made out to "CYNTHIA GARCIA. CITY will make payment within 30 days of the agreement and approval by the CITY Council, whichever is later. DISPLACEE acknowledges that the Payment is inclusive of, and amounts to full and complete satisfaction of compensation for Goodwill Claims and Bonus Value Claims (collectively, the Claims ), and each of them, to which DISPLACEE may be entitled. 4584829.1 -- N1612.1
City of Bellflower Agreement File No. 763.1 Cynthia Garcia (Super Bionicos La Fiesta) Page 3 of 6 5. DISCLAIMER, WAIVER AND RELEASE The Payment represents full payment and just compensation for the taking of DISPLACEE's interests in the Property, for DISPLACEE's vacation of the Property, and for all damages of every kind and nature suffered, or claimed to be suffered, by reason of the CITY's acquisition of DISPLACEE's interests in the Property, and construction and use of the Project for which the interests in the Property and the Improvements are being acquired, including the Claims. In exchange for the Payment, DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, knowingly and voluntarily waives, releases and discharges CITY from liability or responsibility for or related to any right DISPLACEE has, has had, or may in the future have to any claim for additional compensation or damages or liability of any kind, whether known or unknown, foreseen or unforeseen, relating in any way to or arising out of: [i] CITY's acquisition of the Property, and/or [ii] any damage to the remainder incurred as a result of CITY's acquisition of DISPLACEE's interests in the Property, DISPLACEE's vacation of the Property and/or CITY's construction and use of the Project for which the interests in the Property and the F&E are being acquired. In that regard, DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, knowingly and voluntarily and specifically waives and releases CITY, and any and all of CITY's employees, agents, officers, servants, representatives, contractors, attorneys and assigns, from liability as to the following: pre-condemnation damages; severance damages; the Bonus Value Claims; the Goodwill Claims and/or lost profits; lost rents; compensation for machinery, fixtures, inventory, equipment and/or personal property; any rights arising under Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; interest; and attorney's fees, expert fees or any litigation expenses and/or costs. 6. WAIVER OF CODE OF CIVIL PROCEDURE 1542 With respect to each of the releases set forth in this Agreement DISPLACEE acknowledges that it is familiar with the provisions of California Civil Code Section 1542, which is expressly understood by each party hereto to provide as follows: "CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE - 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." DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, being aware of Section 1542 hereby expressly waives any and all rights it may have thereunder, as well as under any other statute or common law principles of similar effect. I HAVE READ AND UNDERSTOOD THE FOREGOING WAIVER OF RIGHTS UNDER CIVIL CODE SECTION 1542. Displacee Initials 7. RIGHT OF ENTRY 4584829.1 -- N1612.1
City of Bellflower Agreement File No. 763.1 Cynthia Garcia (Super Bionicos La Fiesta) Page 4 of 6 DISPLACEE, on behalf of itself and its predecessors, affiliates, parent, sister and related companies, successors and assigns, and each of them, hereby grants permission to CITY and/or its employees, contractors, agents and assigns, to enter upon the Property for the purpose of determining the presence of hazardous materials and for any other pre-demolition coordination activities that may be necessary thereto, provided that such entry into the Property shall be preceded by twenty four (24) hours written Notice of Intent to Enter delivered to DISPLACEE, and CITY shall not commence demolition or removal of Improvements prior to the Vacation Date. The right of entry permission granted herein shall continue in effect until the Vacation Date. CITY shall indemnify, defend and hold DISPLACEE harmless from and against any damages, liabilities, judgments, claims, expenses, and penalties resulting from CITY's use of this right of entry by CITY and its agents, contractors, and employees. 8. NO OTHER OCCUPANTS DISPLACEE warrants that it is the only occupant of the Property, in their perspective physical address, suite or unit number, and there are no claims to occupancy or possession of the Property by any other lessee, occupant or other third party other than DISPLACEE. Likewise, DISPLACEE agrees not to assign, transfer or sell to any third party any right, title or interest either has in the Property. In the event that after the Vacation Date, CITY is required to take action, legal or otherwise, to remove any lessee, occupant or third party from the Property, DISPLACEE will indemnify and hold CITY harmless as to any and all amounts incurred or expended by CITY including, but not limited to, relocation costs, claims of just compensation and/or damages (including loss of goodwill) claimed by any lessee, third party or occupant, as well as attorneys' fees and costs expended by CITY related thereto. 9. ENTIRE AGREEMENT This Agreement contains the entire agreement and understanding with independent legal counsel and each has secured independent advice concerning every aspect of this Agreement and the rights and liabilities each is hereby relinquishing. 10. CONSULTATION WITH LEGAL COUNSEL All Parties to this Agreement represent that each has consulted or has had the opportunity to consult with independent legal counsel and/or each has secured independent advice concerning every aspect of this Agreement and the rights and liabilities each is hereby relinquishing. 11. REMEDIES CITY and DISPLACEE may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of this Agreement including, but not limited to, an action for specific performance. In the event of a breach, any forbearance on the part of any party to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach. 12. ATTORNEYS' FEES AND COSTS Except as otherwise set forth in this Agreement, each party hereto shall bear its own legal fees, expert fees and litigation costs arising out of any and all claims which have been settled by the terms of this Agreement. In the event an action or proceeding is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees for that action. 4584829.1 -- N1612.1
City of Bellflower Agreement File No. 763.1 Cynthia Garcia (Super Bionicos La Fiesta) Page 5 of 6 13. AMENDMENTS No amendment, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby. 14. CONSTRUCTION OF AGREEMENT The Parties agree that this Agreement was jointly prepared through negotiations of the Parties and the provisions of the Agreement are not to be strictly or liberally construed for or against any of the Parties. 15. AUTHORITY The Parties represent and warrant that they have not assigned to any other entity all of the matters, rights and claims as set forth in this Agreement. Each of the undersigned represents and warrants that it has, on behalf of the entity for whom the undersigned is signing, the express authority to enter into, bind, release and waive, all of the matters rights and claims as set forth in this Agreement with respect to itself. 16. COUNTERPARTS AND FACSIMILE SIGNATURES The Parties agree that this Agreement may be executed in counterparts and that each fully executed copy of the Agreement shall have the same binding force and effect as an original. The Parties further agree that facsimile or electronic copies of signatures shall have the same force and effect as original signatures. 17. NOTICES All notice or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, facsimile machine or overnight courier and shall be deemed received upon the earlier of (i) if personally delivered or emailed, the date of delivery to the address of the person to receive such notice, (ii) if mailed, three (3) business days after the date of posting by the United States Post Office, (iii) if sent by overnight courier, when delivered to the specified address, or (iv) if given by fax or email, when sent. To City: To Displacee: City of Bellflower 16600 Civic Center Drive Bellflower, CA 90706 Attn: Jim DellaLonga Cynthia Garcia Super Bionicos La Fiesta 17311 Bellflower Boulevard Bellflower, CA 90706 18. JURISDICTION Each of the undersigned, as well as the Parties on whose behalf the undersigned are signing, consents to personal jurisdiction over each of them by the courts of the State of California. 4584829.1 -- N1612.1
City of Bellflower Agreement File No. 763.1 Cynthia Garcia (Super Bionicos La Fiesta) Page 6 of 6 19. GOVERNING LAW AND VENUE This Agreement will be construed in accordance with, and governed by, the laws of the State of California as applied to contracts that are executed and performed entirely in California. The parties agree that any action arising out of this Agreement may be venued in Los Angeles County, California. IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed on the day and year mentioned hereunder. CITY OF BELLFLOWER SUPER BIONICOS LA FIESTA Jeffrey L. Stewart, City Manager Cynthia Garcia, Owner ATTEST: Mayra Ochiqui, City Clerk APPROVED AS TO FORM: Andrew M. Jones, Special Legal Counsel AlvaradoSmith Exhibit: DM&A Goodwill Report for Super Bionicos La Fiesta 4584829.1 -- N1612.1