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HomeMy WebLinkAboutRR SANTA ANA, LP1'+;viiii?rr, -. DUIRED N-2020-220 ji1�1 Wr, FCCEFO �PR . l0UN(,.L 0: Cfro L0(K.4►{ rtlltSM)ETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release (hereinafter "Agreement") is made and entered into by and between CITY OF SANTA ANA ("City" or "Plaintiff'), on the one side, and Property Owners, RR SANTA ANA, LP, MOUNTAIN HIGH/ HOLIDAY HILL CORPORATION, TERRY TOGNAZZINI, PATRICIA TOGNAZZINI, and DANIEL TOGNAZZINI (herein collectively referenced as "Property Owners" or "Defendants"), on the other side. City and 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. 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 Owners are the current owners of Property located at 2600 N. Main Street, Santa Ana, California (the "Property") and operators of the Red Roof Inn Santa Ana motel ("Red Roof') on the Property; C. WHEREAS, on October 7, 2020, the City filed a Complaint for Injunction to Abate a Public Nuisance in the Superior Court for the State of California, County of Orange, entitled City of Santa Ana v. RR Santa Ana LP, et. al, Case No. 30-2020-01164089-CU-MC-CJC (referenced herein as the "Action"). City's Complaint in the Action includes a prayer for injunctive relief, civil penalties, attorneys' fees and costs, and other equitable remedies against Property Owners; D. WHEREAS, in response to the Action, Property Owners have taken numerous affirmative actions to abate the nuisance conditions on the Property and ensure that such conditions do not return; E. 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 6 below), and differences between them with respect to the Action; 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 1 of 9 TERMS OF SETTLEMENT AGREEMENT 1. Stipulation for Dismissal of Action and Request for Court to Retain Jurisdiction to Enforcement Settlement Agreement. The Parties will enter into a Stipulation for dismissal of the action and request the Court to retain jurisdiction to enforce the Settlement Agreement for a period of three (3) years pursuant to Code of Civil Procedure section 664.6. The terms and conditions of the Settlement are provided herein. 2. Penalties Reasonable Attorneys' Fees. and Staff Costs. In consideration for the final settlement of this matter, and in accordance with the terms of this Agreement, Property Owners stipulate and agree to pay the City a total of Thirty -One Thousand U.S. Dollars ($31,000.00) in fines, fees, and staff costs ("Settlement Payment"). The Settlement Payment shall made payable to the City pursuant to the payment schedule outlined in section 2(a), below. 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. In consideration and promotion of community benefit to the residents and youth of the City, Property Owners shall make a further payment of Twenty Thousand U.S. Dollars ($20,000.00) to the Santa Ana Police Athletic and Activity League ("SAPAAL"). Said payment _shall be made pursuant to the payment schedule outlined in section 2(b), below. Payments shall be made payable to "Santa Ana Police Athletic and Activity League" as follows: Santa Ana Police Athletic and Activity League, Attn: Commander Michael Claborn, Santa Ana Police Department, 60 Civic Center Plaza, P.O. Box 1981, Santa Ana, CA 92701. Property Owners shall provide proof to City within thirty (30) days of payment. a. Payment schedule to the City as follows: o Within 9 months of settlement: $7,750 o Within 15 months: $7,750 o Within 21 months: $7,750 o Within 27 months: $7,750 b. Payment to SAPAAL as follows: o Within 9 months of settlement: $5,000 o Within 15 months: $5,000 o Within 21 months: $5,000 o Within 27 months: $5,000 3. Compliance and Filing of Further Actions. Following the execution of the Settlement Agreement, Defendants shall ensure (1) compliance with all terms and conditions of the Agreement; (2) the Property is not used as a drug den, as defined in Health and Safety Code § 11570. If City alleges that Defendants have violated either of these terms, City shall provide written notice detailing the basis for the alleged breach of the Settlement Agreement and provide 30 days for Defendants to either (1) contest the alleged violation or (2) to take affirmative action to correct the conditions and provide proof to City. Page 2 of 9 In the event the City is required to bring an additional legal action based on nuisance conditions on the Property and/or breach of the terms of the Settlement Agreement within 3 years of the execution of the Agreement, the Parties stipulate to the imposition of a $25,000 "liquidated damages" provision awarded to City, in addition to actual fees and costs authorized by statute. Such damages shall only be awarded following a judgment finding Defendants, or any of them, or their assignees, liable and responsible for such nuisance conditions. 4. Specific Terms and Conditions of Compliance a. Security Guards: Red Roof will maintain at least one licensed security guard on the Property at all times, 24 hours a day, 7 days a week, to consistently and continuously monitor all interior and exterior portions of the Property. Security logs showing compliance with this provision shall be maintained by Red Roof and provided to City within 48 hours of written request. In the event of increased crime on the Property, calls for service to SAPD, or community complaints regarding same, City shall provide written notice of any alleged violations pursuant to Paragraph 3, above, and the parties shall meet and confer regarding additional security during peak hours as needed. b. Security Cameras: Red Roof will maintain security cameras throughout the Property with coverage of all common areas and parking lots and allow warrantless access to all stored footage upon request by SAPD. All footage shall be stored for a minimum of 30 days. Any broken or damaged security cameras shall be repaired or replaced within 48 hours. c. Lighting: Red Roof shall be maintain lighting throughout the Property to provide ample illumination to all common areas and parking lots. Any broken or damaged lights shall be repaired or replaced within 48 hours. d. Access Control: Red Roof shall maintain access control measures currently in place to prevent after-hours vehicle and pedestrian traffic. Specifically, Red Roof shall utilize permanent and temporary barriers during nighttime hours to limit vehicular traffic to a single entrance and exit on North Main Street adjacent to the front lobby area. Construction of permanent vehicular or pedestrian access through gates or similar barriers shall be subject to approval by the City's Planning or Public Works divisions. Vending machines, ice machines, or similar services shall be located in common areas which are accessible only to registered guests. In the event these services become a draw for non -guests, such services shall be relocated or removed from the Property. e. Guest Registration: Red Roof shall add language to all guest registration cards stating that the Property is monitored by security cameras and such footage is regularly provided to the Santa Ana Police Department. Signs noting this policy will be posted in the front lobby. Red Roof shall require all guests to provide photo ID at time of registration and shall retain copies of all guest IDs and registration cards for at least 90 days. Red Roof shall provide immediate access to guest IDs and registration cards upon request of SAPD. f No Trespassing: ssing: Red Roof shall maintain no trespassing signs compliant with California Penal Code section 602 throughout the Property and maintain an active "no trespass" letter with SAPD pursuant to PC section 602(1). g. Vehicle Registration: Red Roof shall require all guests to register any vehicles that will be parked on the Property (including information on make, model, year, color, and license plate number) and provide placards or stickers to be placed on parked vehicles that Page 3 of 9 clearly list the dates of stay on the Property. Red Roof shall allow SAPD immediate access to all vehicle registration information and promptly tow any vehicles parked on the Property without the proper registration. h. "Do Not Rent" List and Removal: Santa Ana Police Department will provide a list of persons who have been convicted of criminal offenses on the Property. Upon receipt of that list, Red Roof Inn agrees that they will not rent a room to persons on the list, nor will they allow such individuals to remain on the Property as a guest of a registered guest. If necessary, Red Roof Inn will immediately take legal action as required to remove individuals from the Property. Delay caused by the initiation of required legal process shall not be deemed a violation of this Agreement. i. Code Enforcement Compliance: Red Roof shall make all corrections noted and required on the "Notice and Order" issued on July 14, 2020, within nine (9) months of the execution of this Agreement. Upon completion of all remediation, Property Owners shall notify the Code Enforcement Division and allow inspection to confirm compliance. Red Roof will permit inspections of all areas of the Property to Santa Ana Code Enforcement upon 48 hours' written notice, unless such inspection is needed to address an emergency condition at the Property. Immediate access shall be granted in cases of emergency. j. Further Cooperation: The Parties agree to conduct bi-annual meetings in order to: (1) ensure that Defendants are complying with the terms and conditions of the Settlement Agreement; (2) evaluate the conditions at the Property; (3) obtain any necessary input from - -- - - -- -- community members; hotel staff,, and -City -staff -to -ensure the safety- of- residents and guests. The - -- bi-annual meetings will be conducted on a mutually agreeable date, time, and location. Property Owners agree to send representatives to such meetings on their behalf so long as the representatives have authority to institute and/or establish new protocols/policies/procedures at the Subject Property to ensure compliance with the Agreement. 5. Release. Notwithstanding the provisions of Civil Code section 1542, each party hereto hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, agents, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with each other party 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 any time hereafter may have or claim to have, incidental to the incident(s) which forms the basis of the Action. 6. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Property Owners acknowledge that they has been advised by legal counsel and are 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 Page 4 of 9 EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." THE PROPERTY OWNERS, 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. 7. 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. 8. 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 Page 5 of 9 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. 9. 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. 10. 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. 11. 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. 12. Choice of Law/Venue. 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. 13. 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 Page 6 of 9 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. Amendments. This Agreement may be amended only by written agreement signed by all of the Parties hereto, or their respective successors or assigns. Page 7 of 9 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: Signed in counterpart. Kristine Ridge, 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 Dated: Signed in counterpart. Daisy Gomez, Cleric of the Council_ PROPERTY OWNERS Dated: Dated: Dated: [CONTINUED ON NEXT PAGE] Signed in counterpart. Name: Title: RR SANTA ANA L.P, Signed in counterpart - Name: Title: MOUNTAIN HIGH/ HOLIDAY HILL CORP. Signed in counterpart. Terry Tognazzini Page 8 of 9 N-2020-220 IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. PARTIES: Dated: 01 [ 2-1 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:/.� l/ Kristine dge,CityM ager 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 Dated: /� 9 :r y By: Daisy Gomez, Cl k of the Cou c 1_ PROPERTY OWNERS Dated: * 3 2I Name: wrj tejnaza+ Title: Ptirkrtor RR SANTA ANA L.P. Dated: Nam . Tarl-Y gAa z i,14 Title: P<<si. e^ MOUNTAIN HIGH/ HOLIDAY HILL CORP. r q Dated: 3 L3 Z Tcny zzini [CONTINUED ON NEXT PAGE] Page 8 of 9 Dated: Dated: APPROVED AS TO FORM: Dated: March 23, 2021 Dated: Signed in counterpart. Patricia Tognazzini Signed in counterpart. Daniel Tognazzini SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana . �Az KC. NELLESEN - - - - - A rstant City Attorney_- _.._ - - -- Attorney for Plaintiff CITY OF SANTA ANA Signed in counterpart. JOHN H. HORWITZ Chen, Horwitz & Franklin Attorney for Property Owners Page 9 of 9 Dated:Lµ:._h!"" r Patricia fognazzim U Dated: 3 1,5 1 APPROVED AS TO FORM: Dated: Dated: March 23, 2021 -^? `Danielo SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Signed in counterpart. KYLE C. NELLESEN Assistant City Attorney Attorney for Plaintiff CITY OF SANTA ANA JOHN H. HORWITZ Chen, Horwitz & Franklin Attorney for Property Owners Page 9 of 9