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HomeMy WebLinkAboutMAMO REAL ESTATE, INCINSURANCE NOT REQUIRED WORK NIAY PROCEED CLERK OF COUNCIL N-2019-146 VTc ® AUG 1 4 2019 O G `0\ SETTLEMENT AND MUTUAL RELEASE AGREEMENT Ys�ttkt T-\-- This Settlement and Mutual Release Agreement (hereinafter "Agreement") is made and entered into by and between CITY OF SANTA ANA ("City"), on the one side, and Property Owner, MAMO REAL ESTATE, INC., a California Corporation (herein referenced as "Property Owner"), on the other side. City and Property Owner 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. WHEREAS, the City of Santa Ana is a city organized under the laws of the State of California, with a duty and interest in protecting the public health, safety, and welfare within the city; B. WHEREAS, Property Owner is the current owner of property located at 1139 W. 17th Street, Santa Ana, California (the "Property"); C. WHEREAS, the City has taken extensive action against the Property due to numerous longstanding violations of the Santa Ana Municipal Code (SAMC) and other adopted codes. Specifically, the Property has been extensively modified without building permits, inspections, or approvals, and has been used as an illegal marijuana dispensary facility. Based on these violations, the City has declared the property to be a public nuisance. In addition, the City has issued a Notice and Order against the property, pursuant to the SAMC and other adopted codes D. WHEREAS, 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 7 TERMS OF SETTLEMENT AGREEMENT The terms and conditions of the Settlement are provided herein. 2. Fines. Fees, and Abatement Costs. In consideration for the final settlement of this matter, and in accordance with the terms of this Agreement, Property Owner stipulates and agrees to pay the City a total of Forty -Eight Thousand, Five Hundred U.S. Dollars ($48,500.00) in fines, fees, and abatement costs ("Settlement Payment"). The $48,500.00 settlement payment shall made payable to the City within forty-five (45) days 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 Attorney's Office, 20 Civic Center Plaza, M29, P.O. Box 1988, Santa Ana, California 92702. 3. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Property Owner 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 WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR ITS 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." THE PROPERTY OWNER AND CITY, 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 PERTAINING 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 with the matters described herein, and with respect to any facts which are now unknown to them relating thereto, and agrees that this Agreement shall be in all respects enforceable and not subject to termination or rescission by any such difference in facts. 4. Notwithstanding the provisions of Civil Code section 1542, each Party hereby irrevocably and unconditionally releases and forever discharges each other Party and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with each other parry from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which each releasing party at any time heretofore had or claimed to have or which each releasing party at Page 2 of 7 any time hereafter may have or claim to have, incidental to the incident(s) which form the basis of this Agreement. 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 entity any Claims or other matters herein released. (b) Each Party has received or has had the opportunity to receive independent legal 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 Party'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 Party 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 attorney(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 prior 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. (f) 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. Enforcement of Settlement. The Parties agree this Agreement is entered into Page 3 of 7 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. Attorney'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. 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 any claims or defenses asserted in the Action, 10. Choice of LawNenue. 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 between 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. 11. Integrated Agreement, 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 drafter. 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. Page 4 of 7 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. Severability. 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 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. Page 5 of 7 IN WITNESS WHEREOF. this Aureement is executed on the dates set forth below. PARTIES: Dated: 9L&,W 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: hristme idge, 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 Californiay Dated: /1/ o2G/ By: Daisy Gomez, Clerk of the Counct PROPERTY OWNER MAMOO�REAL ESTATE, INC. Dated: 6 71Z 1 /0 `C G By: Name: L%ct,—, Ckvs. Title: A [CONTINUED ON NEXT PAGE] Page 6 of 7 APPROVED AS TO FORM: Dated: Ail - Dated: -,S ? l SOMA R. CARVALHO CITY ATTORNEY City of Santa Ana KYWC. NELLESEN As Mstant City Attorney Attorney for Plaintiff CITY OF SANTA ANA CTWS GLEW Attorney for Property Owner, MAMO REAL ESTATE, INC. Page 7 of 7