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
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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
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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.
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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
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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'-�
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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