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HomeMy WebLinkAboutENVISION PROPERTIES, LLC.INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL F"3 0 i 2019 ®`.CAoco) /1J'kNC. �.iFr=.h+�CS N-2019-425 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release (hereinafter "Agreement') is made and entered into by and between Plaintiff CITY OP SANTA ANA (- City), on the one side, and Property Owners. JAMES S. HONG, KOOK It. HONG and ENVISION PROPERTIES. LLC (herein referenced as "Settling Property Owners—), on the other side. City and Settling Property Owners are sometimes individually referred to herein as a `Party' and collectively referred to herein as the "Parties." This Agreement is made with reference to the following facts: RECITALS A. WIIEREAS, the City of Santa Ana is a city organized under the laws of the State of Califomia, with a duty and interest in protecting the public health, safety. and welfare within the cin•• B. W7IEREAS, the Scaling Property Owners arc the current owners of property located at 902-414 N. Harbor, Santa Ana, California 92704 (the "Property"). C. WHEREAS, on August 30, 2018, City sent Settling Property Owners a Cease and Desist Letter regarding the illegal use of the Property and the public nuisances on the property pursuant to the Red Light Abatement Act (Penal Code §11225 et seq.). City advised Settling PropeM, Owners that the Property was being used for the purposes of prostitution and as such, is a nuisance per se. D. N7IEREAS, the Parties desire to avoid the expense, inconvenience, and uncertainties of further litigation and, therefore, the Parties have agreed, with no admission of liability by any Party, to enter into a complete and final settlement of all disputes, Claims (as defined in paragraph 4 below), and differences between them; and NOW THEREFORE, IN CONSIDERATION of the above recitals, the covenants. conditions, and agreements made herein by the Parties. and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. the Parties agree as follows: Page I of 9 TERMS OF SETTLEMENT AGREEMENT L The terms and conditions of the Settlement are provided herein and attached hereto as Exhibits "A" and incorporated herein by reference. 2. Penalties Reasonable Attorney's Fees. Abatement Costs. In consideration for the final settlement of this matter. and in accordance with the terms of this Agreement. Settling Property Owners stipulate and agree to pay the City a total of Five Thousand U.S. Dollars ($5.000.00) in penalties. abatement costs, and reasonable attorney's fees incurred to bring the property into compliance ("Settlement Payment*'). The S5,000.00 Settlement Payment shall made payable to the City within thirty, (30) dans of the execution of this Settlement Agreement. The Settlement Payment shall be made to "City of Santa Ana' as follows: City of Santa Ana. Santa Ana City Attorneys Office. 20 Civic Center Plaza. M29. P.O. Box 1988. Santa Ana. California 92702. Settling Property Owners further agree that an additional S5,000.00 will be held in abeyance for one (1) year from the date of the execution of this Agreement and will not be imposed if: Settling Property Owners comply with the terms and conditions of this Settlement. Prior to the imposition of the S5,000.00 penalty held in abeyance, or prior to tiling an action for Breach of this Settlement Agreement, the City will meet and confer with counsel for Settling Property Owners. to provide Settling Property Owners the opportunity to explain or mitigate the circumstances necessitating the imposition of the additional 55,000.00 penalty. At the end of the one year term. (from the date of the execution of this Settlement Agreement), if Settling Property Owners have complied with the terms of this Settlement Agreement and the City has not filed an action against Settling Property Owners, or any of them. for Nuisance under the Red Light Abatement Act or any other Nuisance Statutes or Ordinances for Breach of this Settlement Agreement, then the Settling Property Owners will not be responsible to pay the additional 55,000.00 penalty and it will be considered waived. If the City files an action for Nuisance under the Red Light Abatement Act. Nuisance Statutes and Ordinances and/or Breach of this Settlement Agreement, Settling Property Owners hereby, agree and stipulate that the minimum due and payable to the City in that action will be $5,000.00. 3. Release. Except for the obligations and covenants provided herein. the Settling Property Owners, on behalf of themselves and their past, present, and future predecessors. successors, affiliates, heirs, assigns, officers. officials, directors, shareholders, members, managers. agents, employees, servants. trustees, fiduciaries. parent and subsidiary organizations. partners, attorneys, insurers, representatives. accountants, and all persons acting by. through, under, or in concert with them, or any of them, and each of them (collectively referred to herein as the "Releasing Parties'). hereby release. relinquish, acquit. remise, and discharge City. and its past. present, and future predecessors, successors. affiliates, heirs. assigns, officers, officials. directors. managers, agents. employees, servants, trustees, fiduciaries, subsidiary organizations. partners• attorneys, insurers, representatives. accountants. and all persons acting by, through, under, or in concert with them, or any of them. and each of them (collectively referred to herein as the "Released Parties"), from any and all past. or present rights, claims, demands, obligations, losses, debts, liabilities, offsets. promises. acts. omissions. agreements, costs and expenses, damages, injuries, suits. allegations, appeals. actions and causes of action for damages, equitable relief. and compensation of every kind and nature whatsoever. whether known or unknown, suspected or unsuspected, contingent or fixed, whether past or present whether based in contract. ton, statute. or other legal or equitable theory of recovery. which, as of the date of this Page 2 of 9 Agreement. the Releasing Parties have or had acquired by the Releasing Parties against any of the Released Parties, arising out of, concerning. pertaining to, or in any way connected to the Settling Property Owners ownership and use of property in Santa Ana as a nuisance within the meaning of Pend Code section 11225 er wit. or California Government Code or Santa Ana Municipal Code. These released claims are collectively referenced herein as the "Claims.' 4. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Settling Property Owners acknowledges that he has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WTTICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR ITS FAVOR AT TIIE TIME OF EXECUTING THE RELEASE. WIRCH IF KNOWN BY HIM OR HER MUST HAVE, MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITII THE DEBTOR." THE SETTLING PROPERTY OWNERS. BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS THEY MAY HAVE THEREUNDFR, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAN' PRINCIPLES OF SIMILAR EFFECT PERTATNING TO THE RELEASED CLAIMS. The Parties, and each of them, represent and warrant to the other that they execute this Agreement with full knowledge of any and all rights which they may have by reason of any of the matters described herein and they have received herein. Each Party hereby further assumes the risk of mistake of fact in connection with the true facts involved in connection witli the matters described herein, and with respect to am• facts which arc now unknown to them relating thereto, and agrees that this Agreement shall be in afl respects enforceable and not subject to termination or rescission by any such difference in facts. 5. Successors and Assigns. This Agreement and all terms, conditions, and obligations contained herein, including, but not limited to, the release of Claims set forth herein, are binding upon and inure to the benefit of any assigns and successors -in -interest of the Parties. Each of the Parties represents and warrants that none of the Claims or causes of action being released herein has been transferred, assigned, or otherwise conveyed to any other person or entity, and each of the Parties is the holder of the Claims being released. 6. Representations. Each Party further represents and warrants, as to itself, but not as to any other Party, as follows: (a) Each Party is the sole and lawful owner of all right, title, and interest in and to every Claim and other matter that each such Party releases herein, and that each such Party has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm. or entitv any Claims or other matters herein released. (b) Each Party has received or has had the opportunity to receive independent legal Vage3 of advice from attorneys of such Party's choice with respect to the advisability of executing this Agreement and the releases provided for herein. and prior to the execution of this Agreement by each Party. that Parry's attorney. if any, reviewed this Agreement and discussed the Agreement with such Party, and the Party has made all desired changes. (c) Except as expressly stated in this Agreement. each Party represents and warrants that it has not made any statement or representation to any other Party regarding any facts relied upon by said other Pam in entering into this Agreement, and each Party specifically does not rely upon any statement, representation, or promise of any other Party in executing this Agreement or in making the settlement provided for herein, except as expressly stated in this Agreement. (d) Each Party and its attomey(s). if any, has had a full and fair opportunity to investigate and evaluate the transactions, documents. facts, circumstances. and disputes out of which this Agreement arises prion to entering into this Agreement, and each Party hereto and their respective attorney(s), if any, have made such investigation of the facts pertaining to this Agreement, and all of the matters appertaining thereto, as they deem necessary. (e) The terms of this Agreement are contractual and not a mere recital. (t) By signing this Agreement, each Party represents and warrants that such Party has carefully read this Agreement. that the contents hereof are known and understood by such Party. and that this Agreement is signed freely by such Party. (g) Each Party executing this Agreement in a representative capacity represents and warrants that it is empowered to do so. 7. Enforcement of Settlement, The Parties agree this Agreement is entered into pursuant to California Code of Civil Procedure Section 664.6, and the Orange County Superior Court will have jurisdiction over the parties to enforce this Agreement and the terms of this Agreement until performance in full of the terms of the Agreement. 8. Altomev's Fees. Should any Party hereto institute any legal action or proceeding to enforce any provision of this Agreement or for damages by reason of any alleged breach of any provision of this Agreement, the prevailing Party shall be entitled to receive from the losing Party all of its costs and expenses. including, without limitation, reasonable attorney's fees, court costs, and disbursements actually and reasonably incurred in connection with said proceeding. Such fees shall be in addition to any penalties authorized by this Agreement. Page 4 of 9 9. No Admission. This Agreement is executed pursuant to a compromise and settlement entered into by each of the Parties hereto without any admission of liability to each other, but solely for the purpose of avoiding costly litigation on disputed claims and avoiding further uncertainty, controversy, and legal expense. Without limiting the foregoing, neither the settlement of the dispute nor any consideration provided by any Party, nor anything contained in this Agreement, shall be taken or construed to be an inference or admission by any of the Parties or as evidencing or indicating in any degree the truth or correctness of arty claims or defenses asserted in the Action. 10. Choice of LatvlVenue. This Agreement shall be governed by and construed under the laws of the State of California. If any provision of this Agreement is invalid or contravenes California law, such provision shall be deemed not to be a part of this Agreement and shall not affect the validity or enforceability of the remaining provisions. Nothing contained herein shall be construed so as to require the commission of any acts contrary to law, and wherever there is a conflict Mween any provisions of this Agreement and any present or future statute, law, ordinance, or regulation, the former shall be curtailed and limited only to the extent necessary to make it comply with such statute. law, ordinance, or regulation. Any action arising out of this Agreement. or the matters addressed herein. shall be brought within the Superior Court for the State of California, County of Orange. if. Integrated Aereemenl. This Agreement and the Exhibits attached hereto constitute a single integrated written contract expressing the entire agreement of the Parties. There are no other agreements, written or oral, express or implied, between the Parties, and/or their successors and assigns, with respect to the matters released herein, except the Agreement set forth herein. Each Party to this Agreement has substantial experience with the subject matter of this Agreement and each has fully participated in the negotiation and drafting of this Agreement and has been advised by counsel of its choice with respect to the subject matter hereof. Accordingly, this Agreement shall be construed without regard to the rule that ambiguities in a document are to be construed against the draftLr. 12. Section Headings. The section headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several sections hereof. 13. Gender and Number. Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. 14. Counterpart Execution. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. 15. Severabilitw. If any material portion of this Agreement is held to be unenforceable by a court of competent jurisdiction. the remainder of this Agreement shall remain in full force and effect. 16. Amendments. This Agreement may be amended only by written agreement Page 5 of 9 N-2019-025 signed by all of the Parties hereto. or their respective successors or assigns. 17. Exhibits. All exhibits attached hereto are hereby incorporated into this Agreement as though fully set forth herein. IN WITNESS WHEREOF. this .Agreement is executed on the dates set forth below. PARTIES: Dated: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California By,: [ �� Raul Godinez Il, City Manager ATTEST: CITY OF SANTA ANA. a charter law- city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California 'r IIy: �- Norma Mitre Acting Clerk of the Council SETTLING PROPERTY OWNERS (( Dated: j _ r6 - t `i �(i�1�14t- Envision Properties. LLC Its M_ a n er5V ri� \M em bf Y - Dated: i— James S. Hong Dated: Kook 11. 1long [CONTINUED ON NEXT PAGE] Page 6 of 9 APPROVED AS TO FORM: SONIA R. CARVALHO CITY ATTORNEY C' f Santa Ana Dated: TA RA BOGOSIAN Assistant City Attorney KYLE C. NELLESEN Assistant City Attorney Attorney for Plaintiff CITY OF SANTA AICA Dated: i—u— Z,(? LAW OFFICES OF JAY H. PARK JaYH. ParK Attorneys for Settling Property Owners Envision Properties, LLC James S. Hong Kook H. Hong Page 7 of 9 EXHIBIT A Settling Property Owners and their partners, assignees, successors, representatives, managers, agents, attorneys, employees, and all other persons acting under or in concert with Settling Property Owners agree to the follow ing additional terms of settlement to be instituted within sixty (60) days of the execution of this Settlement Agreement, unless stated otherwise, as it pertains to 702-714 N. Harbor, Santa Ana, California 92704, ("Property'): 1.1 Security and Surveillance (a) Maintain and ensure that at least one (1) licensed and trained security guard is present on the property and patrolling the property at ]cast three days a week as follows: Fridays 10:00 p.m. to 2:00 a.m. Saturdays 10:00 p.m. to 2:00 a.m. Sundays 10:00 p.m. to 2:00 a.m. The security guard will be required to open and close the gate that secures the rear parking lot at the Property between the hours of 10:00 p.m. and 6:00 a.m. Monday through Friday. (b) Install and maintain security cameras throughout the Property. with coverage of all common areas and parking lots with the ability of the Santa Ana Police Department to conduct "real time monitoring of[he video surveillance. In the event a security camera is broken or damaged, it must be repaired within 24 hours. Maintain the server in a centralized location. 2.1 Liehtine (a) Install and maintain LLD lighting in all parking lot and common areas of the Property: In the event any lighting is broken or damaged, it must be repaired within 24 hours. 3.1 Si na e (a) Post and maintain the following signs throughout the Property with lettering large enough to be clearly read as follows: • No Loitering; • Code of Conduct; • Towing: • Parking Prohibition Page 8 of 9 (b) Settling Property Owners will also provide a "No Trespass" letter to the Santa Ana Police Department pursuant to the Penal Code section 602(l). 4.1 Toeine Comnanv (a) I (ire towing company to tow violating vehicles. 5.1 Gate (a) Install and maintain secure gate for the rear parking lot area. The security guard will be required to open and close the gate that secures the rear parking lot at the Property between the hours of 10:00 p.m. and 6:00 a.m. Monday through Friday. Page 9 of 9