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HomeMy WebLinkAboutMARY C. AXELSON TRUSTMr -OURED 1� W. 'ROCEF ) N-2021-110 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 0: CPr0uI(tDg1V,n ,n„�PF} ``►►""^' This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into by and between CITY OF SANTA ANA, a charter City and municipal corporation, and THE PEOPLE OF THE STATE OF CALIFORNIA, by the City Attorney for the City of Santa Ana (hereinafter "Plaintiffs"), and MARY C. AXELSON TRUST, under Declaration of Trust dated February 11, 1970, as restated in its entirety in the Twenty -Sixth Amendment to Declaration of Trust dated February 18th, 1993, LOIS HORNESS, as trustee (hereinafter "Defendants"). Plaintiffs and Defendants are also collectively referred to as "the Parties" herein. WITNESSETH: WHEREAS, 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; WHEREAS, the Settling Defendants are the current owner of property within Santa Ana located at 2710 W Edinger Ave. Santa Ana, CA 92704 (the "Property"); WHEREAS, Plaintiffs filed an action against Defendants, in the Superior Court of the State California, County of Orange, Central Justice Center District known as City of Santa Ana, et al. v. MARY C. AXELSON TRUST et al., Case No. 30-2020-01160662-CU-MC-CJC (the "Action"). The City's complaint in the Action includes a prayer for injunctive relief, civil penalties, attorneys' fees and costs, and other equitable relief against Settling Defendants; and 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 3 below), and differences between them with respect to the Action; and NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, and to avoid unnecessary litigation, it is hereby agreed by and between the Parties as follows: TERMS OF SETTLEMENT AGREEMENT 1. Stipulation for Dismissal of Action and Request for Court to Retain Jurisdiction to Enforce Settlement Agreement. The Parties will enter into a Stipulation for dismissal of action and request the court to retain jurisdiction to enforce this Agreement for a period of five (5) years pursuant to Code of Civil Procedure section 664.6. The terms and conditions of this Agreement are provided herein and attached hereto as Exhibits "A" incorporated herein by this reference. Upon dismissal and recordation of the Property Maintenance Agreement as required below, the City shall record a withdrawal of the Notice of Pendency of Action in the Orange County Clerk -Recorder's Office. 1 2. Property Maintenance Agreement. Concurrently with this Agreement, the Parties will execute a Property Maintenance Agreement to ensure the proper compliance with the conditions of this Agreement, operational restrictions, maintenance, and upkeep of the Property, improvements, and permitted uses. A copy of the Property Maintenance Agreement is attached hereto as Exhibit `B" and is incorporated herein by this reference. The Property Maintenance Agreement shall be recorded in the Orange County Clerk -Recorder's Office in accordance with the terms and conditions set therein. 3. Penalties, Reasonable Attorney's Fees, Abatement Costs. In consideration for the final settlement of this Action, and in accordance with the terms of this Agreement, Settling Defendants stipulate and agree to pay the City of Santa Ana a total of Twenty Four Thousand Eight Hundred and Four U.S. Dollars ($24,804) in penalties, abatement costs, and reasonable attorney's fees incurred in this action made payable to Santa Ana. This payment shall made payable to the City within thirty (30) 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. Settling Defendants agree to donate Ten Thousand Dollars ($10,000) to Teen Challenge OC-Santa Ana Facility a non-profit organization whose mission is to offer a variety of outreach programs for gang prevention, and drug prevention for men and women over the age of 18, as well as adolescent boys ages 12 —17. Settling Defendants will provide proof to the City within sixty (60) days of the making of such donation. 4. Compliance and Filing of Further Actions. If City alleges that Defendants have violated the terms and conditions of this Agreement, City shall provide written notice detailing the basis for the alleged breach of the Settlement Agreement and provide thirty (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 of said correction(s) to the department or officer within the City issuing the written notice under this paragraph. In the event the City is required to bring an additional legal action based on nuisance conditions on the Property and/or breach the terms of this Agreement within five (5) years of its execution, the Parties stipulate the imposition of a Fifteen Thousand ($15,000) "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 with an express finding of fact that Defendants, or any of them, or their assignees, are liable and responsible for such nuisance conditions. 5. Release. Except for the obligations and covenants provided herein, the Settling Defendants, 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 the 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 2 as the "Released Parties"), from any and all past, present, or future 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, present, or future, whether based in contract, tort, statute, or other legal or equitable theory of recovery, which, as of the date of this Agreement, the Releasing Parties have, or had, or which may later accrue to or be 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 Defendants' ownership and use of property in the City of Santa Ana. These released claims are collectively referenced herein as the "Claims." 6. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Settling Defendants acknowledge that they have 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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." THE SETTLING DEFENDANTS, 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 all persons having or acquiring any right or title in the Property, including any leasehold interest, or any part thereof, and any assigns and successors -in -interest of the Parties. 8. Warranty. 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. 9. 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 malting 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. 10. Enforcement of Settlement. The Parties agree that this Agreement is entered into pursuant to California Code of Civil Procedure Section 664.6, and that the Court in which the Action is now pending may retain jurisdiction over the parties to enforce this Agreement for a period of five (5) years, including entry and enforcement of the Judgment and any appropriate orders upon motion of any Party pursuant to the terms of the Agreement and California Code of Civil Procedure Section 664.6. 11. Attorney's Fees. Should any Parry 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 recover from the non -prevailing Party all costs and expenses, including, without limitation, reasonable attorney's fees, court costs, and disbursements actually and reasonably incurred in connection with said proceeding. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. Amendments. This Agreement may be amended only by written agreement signed by all of the Parties hereto, or their respective successors or assigns. [Signatures on the following page] N-2021-110 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: Kristine Ridge, 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: S � � F„� 1 •i y Daisy Gomez, Clerk of the Council PROPERTY OWNER Dated:5/11/2021 La . z. Lois A. lAornegs, Trustee of the Mary C. Axeison Trust as ANwadded APPROVED AS TO FORM: Dated: SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana +t` Jose Montoya Deputy City Attorney Attorney for Plaintiff CITY OF SANTA ANA 6 Dated: 5/12/2021 xr�P-. Leslie A. Bower, Esq. Bower & Associates Attorney for Lois A. Horness, Trustee of the Mary C. Axelson Trust as Amended 7 EXHIBIT A Defendants and their partners, assignees, successors, representatives, managers, agents, attorneys, employees, and all other persons acting under or in concert with Settling Defendants agree to the following additional terms of settlement to be instituted within ninety (90) days of the execution of this Settlement Agreement, unless stated otherwise, as it pertains to 2710 W Edinger Ave. Santa Ana, CA 92704 ("Property"): 1.1 Security (a) Maintain and ensure that at least one (1) licensed and trained security guards are present and patrolling the Property from 8:00 a.m. — 2:00 a.m., 7 days a week. Guard will consistently and continuously monitor all interior and exterior portions of the Property. Security logs showing compliance with this provision shall be maintained by Defendants and provided to City within 48 hours of written request. In the event of increased crime on the Property or community complaints regarding same, the parties shall meet and confer regarding additional security during peak hours. 2.1 Lighting (a) Lighting throughout the Property shall be maintained to provide ample illumination to all common areas and parking lots. Any broken or damaged lights shall be repaired or replaced within 48 hours. 3.1 Day Porter (a) Defendants will maintain an on -site day porter five times per week (Monday -Friday), 2 hours per day to manage the maintenance of the Property. 4.1 Install Trash Enclosure (a) Defendants agree to submit all necessary plans to the City for the installation of a trash enclosure within sixty (60) days of the execution of the Settlement Agreement and will complete the work within thirty (30) days of the issuance of permits. 5.1 Annual Meetings (a) The parties agree to conduct annual meetings in order to: (1) ensure that Defendants are complying with the terms and conditions of the Settlement and Property Maintenance Agreements; (2) evaluate the conditions at the Property; and (3) obtain any necessary input from the adjacent businesses, and City staff re the conditions at the Property. The bi-annual meetings will be conducted on a mutually agreeable date, time, and location. Defendants agree to send representatives to such meetings on their behalf so long as the representative have authority to institute and/or establish new protocols/policies/procedures at the Property to ensure compliance with the Settlement and Property Maintenance Agreements.