Loading...
HomeMy WebLinkAboutC-2579 - Release Agreementsbu -b -24 -13878 C" -271 04/16/86 . RELEASE THIS AGREEMENT, among FOODMAKER REALTY Delaware corporations INVESTMENT, CO., a Ca] TRIANGLE ASSOCIATES, ( "Triangle ") in favor of follows: made this ,2.S /4day of April, 1986 by and CORPORATION and FOODMAKER, INC., both (collectively "Foodmaker "), HOSHIZAKI ifornia corporation ( "Hoshizaki ") and a California general partnership the CITY OF NEWPORT BEACH ( "City ") is as RECITALS A. Foodmaker is the successor lessee and Hoshizaki is the successor lessor to Triangle under that certain Lease Agreement (the "Lease ") dated February 25, 1985 demising certain real property located in the City of Newport Beach (the "Premises "). B. Foodmaker entered into the Lease for the purpose of constructing and operating a restaurant on the Premises. C. Subsequent to entering into the Lease, contamina- tion of soils and water by certain hazardous substances underlying the Premises was discovered, as set forth in a report dated May 15, 1985 by Irvine Soils Engineering, Inc. and a subsequent report dated November 5, 1985 by Gregg & Associates. D. Before issuing a building permit for the construction of the restaurant, City has required that all parties to the Lease or with an interest in the Premises acknowledge that current plans for decontamination of the soils and water underlying the Premises exist and that (i) such currently proposed plans of decontamination may be insufficient to decontaminate the soils and underlying waters of the Premises • 0 in accordance with the requirements and specifications of City and that other alternate and more costly methods of decontamina- tion (to include demolition of the restaurant) may be necessary to decontaminate the Premises and (ii) that the issuance of a building permit for the restaurant or the construction of the restaurant does not create a vested right in any party not to decontaminate the soils in accordance with the requirements and specifications of City. TERNS AND CONDITIONS NOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties to this Agreement hereby agree: 1. That the building permit issued by the City's Building Department for the construction of a Jack -in- the -Box restaurant at 4625 Nest Coast Highway prior to the decontamina- tion of the soils and water underlying the Premises is only to be construed as an accommodation by City to facilitate construction prior to decontamination. As such, the issuance of the building permit does not vest Foodmaker, Hoshizaki or Triangle, or any successor or predecessor in interest, with any right not to decontaminate the soils and water presently underlying the Premises in accordance with the City's specifications. 2. Foodmaker, Hoshizaki and Triangle acknowledge that if further or alternate decontamination procedures are necessary to decontaminate the soils and /or underlying water in accordance with the City's specifications, that such decontam- ination measures will be taken by Triangle at its sole cost and expense. Hoshizaki, Foodmaker, and Triangle, specifically -2- • ! acknowledge that such additional or alternative decontamination measures may necessitate the partial or total demolition of the restaurant constructed on the Premises, and that such demolition and reconstruction costs and expenses will be borne by Triangle and /or Foodmaker and /or Hoshizaki (as mutually agreed among the Parties) . 3. Foodmaker, Hoshizaki and Triangle agree to forever refrain and forbear from commencing, instituting or participating, either as a named or unnamed party, in any lawsuit, action or proceeding against City based on or arising out of the decontamination of the Premises or any additional or alternative decontamination methods which may be required by City to accomplish the decontamination of the Premises. 4. Foodmaker, Hoshizaki and Triangle acknowledge ,,// that no representations or promises not expressly contained i A P ' � wm�' this Agreement have been made to themA nd further acknowledge that this Agreement is not being entered into on the basis of any promise or representation, express or implied, n other than those contained in this Agreement. 5. Foodmaker, Hoshizaki and Triangle represent and warrant that they have not heretofore assigned or trans- ferred, nor will they in the future, in any manner, assign or transfer or purport to assign or transfer to any entity, person or corporation, any claim based on or arising out of the proposed decontamination of the Premises as it relates to the vesting of any rights pursuant to the restaurant building permit. 6. Foodmaker, Hoshizaki and Triangle agree that this Agreement shall be binding upon the successors and assigns of each party and shall inure to the benefit of the successors and assigns of City. -3- 7. No notice, request, demand, instruction or other document to be given hereunder to any Party shall be effec- tive for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery) or delivered by mail, sent by registered or certified mail, return receipt requested, as follows: If to Foodmaker, to: Foodmaker, Inc. 9330 Balboa Avenue San Diego, CA 92112 Attn: Leo J. Momsen, Corporate Counsel If to Hoshizaki, to: Hoshizaki Investment Co. e0l R?: e-5 p2 t St��et M04 �Y Y'GY Park, CA 9l7.ry Attention: If the Triangle, to: Triangle Associates c/o Luby Enterprises, Inc. 3151 Airway Avenue Costa Mesa, CA 92626 Attention: Ron Haller Chief Financial Officer If to City, to: City of Newport Beach P. 0. Box 1768 Newport Beach, CA 92658 -8915 Attention: Raimer W. Schuller Building Department Department Notices so mailed shall be deemed to have been given 3 days after the deposit of same in any United States Post Office mailbox, postage prepaid. The addresses and addressees, for the purpose of this Paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address and addressee stated by written -4- • 0 notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. 8. If legal action or arbitration be commenced to enforce or declare the fact of any provisions in this Agreement, the court as part of its judgment shall award reasonable attorneys' fees and costs to the prevailing party. 9. This Agreement may be executed in any number of counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute but one Agreement. IN WITNESS WHEREOF, the undersigned have executed this document as of the date first above written. TRIANGLE ASSOCIATES, a California general partnership By: Partner II, a California partnership General Partner By By: Luby Ente ris s, Inc a Calif nia rpora4rh By s APPROVED, ACCEPTED AND AGREED TO: CI By AS By BEACH W U'-� -5- HOSHIZAKI INVESTMENT CO., a California corporation By t jl Its FOODMAR gEALTY CORPORATION, a Delawa / c rgoation LA W-01051FWARROM =01 I, FOODMAKER, INC., a '1 Delaware corporation By ( u I ExEc V- By- Its SEC R.L TA R.Y