HomeMy WebLinkAbout00315C - LOUISES PANTRY SONTAG JETER LEASE SETTLEMENT Louise's Pantry, Inc.
. Settlement Agr
Sontag & Jeter
AGREEMENT #315C #3236
R887, 6-16-93
SETTLEMENT AGREEMENT This Agreement is made and entered into by and between
the COMMUNITY REDEVELOPMENT AGENCY of the CITY OF PALM SPRINGS, a
public body corporate and politic, the CITY OF PALM SPRINGS, a
general law municipal corporation (collectively the "City") , and
LOUISE'S PANTRY, INC. , a California corporation, SAMUEL SEAN
SONTAG, JR. , an individual, and DAVID DETER, an individual
(collectively the "Tenant") .
RECITALS
A. On or about October 1, 1986, Tenant assumed that
certain Business Property Lease, dated March 17, 1977, as amended
on or about March 31, 1986 (the "Lease" ) , under the terms of which
Tenant leases and hires those certain premises commonly referred to
as 124 South Palm Canyon Drive, Palm Springs, California 92262
(the "demised premises") .
B. Under the terms of the Lease, Tenant is entitled to
possession of the demised premises for a lease term ending on
August 31, 1995 .
C. Effective April 1, 1989, City, through its Community
Redevelopment Agency, acquired all right, title and interest in and
to the demised premises subject only to the terms of the Lease.
D. Pursuant to that certain Redevelopment Participation
Agreement by and between City and John Wessman, d/b/a Wessman
Development Company ( "Wessman" ) , construction was undertaken on
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that certain abutting and adjoining property commonly referred to
as the Plaza de las Flores . In connection with such construction,
Tenant alleges that City, by and through Wessman (or others) ,
caused certain damage to occur to the roof and related mechanical
equipment on the demised premises, which construction has resulted
in damage in and to the demised premises .
E. On November 8, 1992, Tenant filed suit against City,
in that certain action entitled Louise' s Pantry. Inc. v. City of
Palm Springs, Riverside County Superior Court Case No. INDIO 67908
(the "Litigation") . City has answered denying all of the material
allegations of the complaint . City has further filed a cross-
complaint against John Wessman, Wessman Development Company, and
certain unnamed persons or entities for contribution, indemnity and
declaratory relief in the Litigation.
F. In the Litigation, Tenant alleges that it has
suffered damages as a result of the wrongful acts of City, by and
through Wessman and\or its agents . City for itself, and for its
Redevelopment Agency, denies and disclaims any responsibility for
the damages as alleged in the Litigation.
G. The parties hereto wish to settle their differences
and to resolve all claims of any kind between them arising out of
and relating to the allegations raised in the Litigation. In doing
so, neither party accedes to the allegations or positions of the
other party, but rather the parties enter into this Agreement
solely to avoid the burden and expense of further litigation
between themselves .
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AGREEMENT
NOW THEREFORE, in consideration of the above recitals and
the mutual promises and covenants hereinafter set forth, the
parties agree as follows :
1. Roof Removal & Replacement.
City shall, at its sole cost and expense, remove the
existing roofing system on the demised premises and replace the
same with a new roofing system (of the City' s sole choosing) which
will assure the water-tight integrity of the same.
2 . Additional Repair Work.
City further agrees to perform the following repairs, as
and when needed, and in the manner as determined by City (in its
sole and unfettered discretion, but after consultation with an
experienced roofing professional) :
a. Remove, repair or replace, and reinstall
existing mechanical equipment;
b. Repair or replace damaged duct work to assure
air-tight integrity;
C. Remove, repair or replace, and reinstall air
conditioning units;
d. Install a new down-spout for water removal from
the roofing system;
e. Repair as necessary, interior walls, facades,
and fixtures which have experienced water damage; and
f. Repair interior water damage to the upper
kitchen ceiling.
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3 . Warranty.
City warrants all materials, labor, workmanship and
supplies utilized in the installation of the new roofing system
from defects in installation, materials, and workmanship for a
period of twelve (12) consecutive months following installation of
the same.
4 . Extended Warranties.
In the event of a defect in the work performed or
materials utilized by City in complying with paragraph Nos. 1 and
2 above, City agrees to utilize its best efforts to obtain repair
of the same through any extended warranty applicable to such;
provided, however, that nothing in this paragraph No. 4 shall be
deemed to extend or expand the warranty provided in paragraph No.
3 above.
5 . Time of Performance.
The foregoing repairs shall be undertaken no sooner than
June 28, 1993, and shall be completed not later than July 31, 1993 .
6 . Inspection & Preventative Maintenance.
From and after execution of this Agreement, through and
including June 28, 1993, City shall perform a bi-weekly inspection
of the existing roof, and City further agrees to perform such
preventative maintenance as it shall (in its sole and exclusive
discretion) deem necessary to protect the existing roofing system
from further water leakage, including, but not limited to,
providing visquine sealant and cold patching where necessary and
appropriate.
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7. Interim Repairs.
Should additional water damage should occur on or to the
demised premises, from and after the execution of this Agreement
through and including June 28, 1993 , City further agrees to perform
such repairs as shall be reasonably necessary to repair such
damage; provided, however, that City shall have no obligation or
responsibility to repair or replace water damage which may occur to
Tenant' s inventory or equipment.
8 . Payment by City to Tenant.
Upon the execution of this Agreement, City will issue and
cause to be delivered to Tenant its check in the amount of
$17, 000 . 00 .
9 . Release by Tenant.
Concurrently with the execution of this Agreement, Tenant
will execute and deliver to City that certain release in form
attached hereto as Exhibit "A. "
10 . Dismissal of Litigation.
Upon the execution of this Agreement, Exhibit "A"
thereto, and upon payment to Tenants of the sum set forth in
Paragraph No. 6, Tenant will execute and deliver to City a request
for dismissal of the Litigation, with prejudice, in the form
attached hereto as Exhibit "B. " City agrees to hold such request
until after completion of the work in Paragraph Nos. 1 and 2, at
which time City shall, without further authorization, cause the
same to be filed and entered.
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11 . Miscellaneous.
a. This Agreement and the attached Exhibits
constitute the entire agreement between the parties pertaining to
the subject matter hereof, and the final, complete and exclusive
expression of the terms and conditions of their agreement. Any and
all prior agreements, representations, negotiations and
understandings made by the parties, oral or written, express or
implied, are hereby superseded and merged herein.
b. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and
assigns . No party to this Agreement may assign its rights or
obligations hereunder without the prior written consent of the
other party.
C. In the event that legal proceedings are
commenced to enforce any of the provisions of this Agreement or any
rights existing hereunder, in addition to any damages which may be
claimed, the prevailing party shall be entitled to an award of the
costs and attorneys, fees incurred by it in connection with the
prosecution or defense of such action.
d. This Agreement shall be governed and construed
in accordance with the laws of the State of California.
e. This Agreement may be executed in counterparts,
which together shall constitute a single Agreement, and each of
which shall be an original for all purposes .
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Executed as of the dates and places indicated below.
LOUISE'S PANTRY, INC. COMMUNITY REDEVELOPMENT AGENCY
( "Tenant") OF THE C SPRINGS
BY .�ao�1 � ncs �1n � By
Title Title Executive Director
Date r-5 5 Date
At At Palm Springs, Ca.
CITY F PALM SPRI
SAMUEL SEAN SONTAG, JR N ( "Cit ")
BY ��,a a a`�`J �'t= ' By
r �_e� �
Date b � A !1 F° .? Title City Manager
At n�G,t_an� ?ac=C���, Date
a
At Palm Springs, Ca.
JYAVID JETER �/ V
By
Date
At
APPROVED AS TO FORM:
RUTAN & TUCKER
BY��/il/li�L �liln iiNmd �d 9 EsE3 ` .
William Wynder AGENCY ENV r1�S. CLO.
Attorneys for the �e
City of Palm Springs
GURALNI K & ASSOCIATE
By
Wayne G. .... n" ck
Attorneys f/
Louise' s Pantry, Inc.
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RELEASE
For a valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned do hereby release
and forever discharge the "Releasees" hereunder, consisting of the
COMMUNITY REDEVELOPMENT AGENCY of the CITY OF PALM SPRINGS, a
public body corporate and politic, and the CITY OF PALM SPRINGS, a
general law municipal corporation, and each and all of them and (as
the case may be) each of their associates, predecessors,
successors, heirs, assigns, agents, directors, officers, public
officials, employees, representatives, lawyers, and all persons
acting by, through, under or in concert with them, or any of them,
of and from any and all manner of action or actions, cause or
causes of action, in law or in equity, suits, debts, liens,
contracts, agreements, promises, liability, claims, demands,
damages, loss, cost- or expense, of any nature whatsoever, known or
unknown, fixed or contingent (hereunder called "Claims") , which the
undersigned now have or may hereafter have against the Releasees,
or any of them, by reason of any matter, cause, or thing whatsoever
from the beginning of time to the date hereof including, without
limiting the generality of the foregoing, any Claims arising out
of, based upon, or relating to that certain suit now pending in the
Superior Court in and for the County of Riverside, entitled
Louise' s Pantry, Inc vCity of Palm Springs, Riverside County
Superior Court Case No. INDIO 67908, as well as any matters,
causes," or things whatsoever that were, or have been, or could in
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any way have been, alleged in the respective pleadings filed in
said suit .
THE UNDERSIGNED ACKNOWLEDGES THAT THEY HAVE BEEN ADVISED
BY THEIR LEGAL COUNSEL, WAYNE GURALNICK, ESQ. , OF GURALNICK &
ASSOCIATES, AND ARE FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE § 1542, WHICH PROVIDES 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. "
THE UNDERSIGNED, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY
WAIVE ANY RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY
OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
The undersigned, and each of them, represent and warrant
that there has been no assignment or other transfer of any interest
in any Claim which they, or any of them, may have against the
Releasees, or any of them, and the undersigned, and each of them,
agree to indemnify and hold Releasees, and each of them, harmless
from any liability, Claims, demands, damages, costs, expenses and
attorneys, fees incurred by Releasees, or any of them, as a result
of any person asserting any such assignment or transfer. It is the
intention of the parties that this indemnity does not require
payment as a condition precedent to recovery by the Releasees
against the undersigned under this indemnity.
The undersigned, and each of them, agree that if they, or
any of them, hereafter commence, join in, or in any manner seek
relief through any suit arising out of, based upon, or relating to
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i •
any of the Claims released hereunder or in any manner assert
against Releasees, or any of them, any of the Claims released
hereunder, then the undersigned, and each of them, will pay to
Releasees, and each of them, in addition to any other damages
caused to Releasees thereby, all attorneys' fees incurred by
Releasees in defending or otherwise responding to said suit or
Claim.
The undersigned further understand and agree that neither
the payment of any sum of money nor the execution of this Release
shall constitute or be construed as an admission of any liability
whatsoever by the Releasees, or any of them, who have consistently
taken the position that they have no liability whatsoever to the
undersigned.
This Release may be executed in counterparts, which
together shall constitute the Release, and each of which shall be
an original for all purposes.
Executed as of the dates and places indicated below.
LOUISE'S PANTRY, INC.
SAMUEL SEAN SONTAG, JR).
Hy— c1�/ �✓! c-<=198�) r3� y By ,fa�,`� ^� .. ��
Title qT
o✓a�r�, :�� Date
Date ' /F:3 AtAt
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ISAVID DETER /
f
By
Date
At
APPROVED AS TO FORM:
GURALNICK & ASSOCIATES
By
Wayne Guralnick
Attorneys for
Louise' s Pantry, Inc.
PS2\268\0140840003\2032682.1 05/19/93 -4-
Name, Address and Telsphow.of Attorney(s) spe�elaw for Use of coun Clerk Only
WAYNE S. GURALNICK
GURALNICK & ASSOCIATES
74-399 HIGHWAY 111, SUITE M
PALM DESERT, CA. 92260
(619) 340-1515
Attorney(s)for..Pla int i ffs.........................
......Superior,,.....COURT OF CALIFORNIA, COUNTY OF. Riverside
(SUPERIOR,MUNICIPAL,or JUSTICE) "' "" "" ' ""
..........................................Indio..Branch............... . .. .. .
(Name of Municipal or Justice Court District or of branch court,it any)
Plaintiff(s): LOUISE'S PANTRY, INC. , a CASENUMBER I-67908
California corporation,
REQUEST FOR DISMISSAL
TYPE OF ACTION
Defendants(s): CITY OF PALM SPRINGS, a O Personal Injury,Property Damage and Wrongful Death:
public entity and DOES 1 through =1 motor Vehicle OOther
100, inclusive, = Domestic Relations Eminent Domain
(Abbreviated Title) ® Other: (specify).Negligence;..Breach.of..
Implied Covenant of Quiet Enjoyment
TO THE CLERK: Please dismiss this action as follows: (Check applicable boxes.)
1. ® With prejudice M Without prejudice
2. Entire action ® Complaint only Petition only Cross-complaint only
(] Other:(Specify)•
GURALNICK & ASSOCIATES
Dated:. June ,_,,.1993.....................
*If dismissal requested Is of specified parties ony, of specified Attorney(s)for Plaintiff
Causes of action only or of specified cross-complaints only. so
state and Identify the parties,causes of action or cross-complaints
to be dismissed. Wayne S. GuralniC)C
(Type or print attorney(s)name(s))
TO THE CLERK: Consent to the above dismissal is hereby given.31
Dated:..............4.............
**When a cross-complaint(or Response(Mamage)seeking affirms- Attorney(s)for Plaintiff
tive relief) is on file, the attomay(s) for the cross-complaint
(respondent) must sign this consent When required by CCP
51110).(2)or(5).
(Type or print attorney(s)name(s))
(To be completed by clerk)
I] Dismissal entered as requested on..........................................................................................
(] Dismissal entered on...............................as to only ..............................................................
(] Dismissal not entered as requested for the following reason(s), and attorney(s)notified on
Clerk
Dated......................................................... By .Deputy
3 Form Adopted by Rule 9e2 of CCP Set,etc.;
The Judicial Counal of California REQUEST FOR DISMISSAL Cal.Rules of Court,
Revised Effective Juy 1,1972
Rule 1233