HomeMy WebLinkAboutRUSSELL FISCHER PARTNERSHIP, LP, THEA-2020-180-01
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FIRST AMENDMENT TO SETTLEMENT AGREEMENT
001
THIS FIRST AMENDMENT TO SETTLEMENT AGREEMENT ("First Amendment"),
is made and entered into as of the ?3 day of july 2021, by and between the City of Santa
Ana, on the one hand, and The Russell Fischer Partnership, LP ("RF"), on the other hand,
(collectively "Parties," or individually "Party").
RECITALS
WHEREAS, the Parties entered into a Settlement Agreement, a copy of which is attached
hereto, (the "Original Settlement Agreement"); and
WHEREAS, pursuant to the Original Settlement Agreement, the City acknowledged that, in
the event the City rescinds the 2019 Proj ect Approvals, the rescission would include all conditions of
approval on the 2019 Approvals including RF's indemnity obligation with certain exceptions set
forth in the Original Settlement Agreement (Section 2); and
WHEREAS, by this First Amendment, the Parties desire to amend the Original Settlement
Agreement such that RF will continue to defend and indemnify the City as provided for in the 2019
Approvals, even if the City were to rescind such approvals.
NOW, THEREFORE, in consideration of the promises contained in the Original Settlement
Agreement, City and RF agree as follows:
1. Amendment to Section 1. The Parties agree to amend Section 1 of the Original
Settlement Agreement to read as follows (new language is underlined):
The City shall take all necessary actions to process and consider the rescission of the 2019
Approvals. The Parties acknowledge and agree that the City retains its discretion as to whether or
not to rescind the 2019 Approvals. The City acknowledges and agrees that the 2018 Approvals have
not expired and were not rescinded by the City, and therefore are valid and in full force and effect.
Notwithstanding, in the event the 2019 Project Approvals are rescinded. RF agrees to honor all
indemnity obligations set forth in the 2019 Project Approvals and Joint Nondisclosure Indemnity
and Litigation Defense Agreement ("JDA") between the Parties.
2. Sections 2, 3, and 4 Deleted. Sections 2, 3, and 4 of the Original Settlement
Agreement are hereby deleted in their entirety.
3. Amendment to Section 6. The Parties agree to amend Section 6 of the Original
Settlement Agreement to read as follows (new language is underlined and deleted language is
stricken):
The Parties shall take such steps and execute such other documents as may be reasonably
necessary to comply with the provisions of this Agreement. Notwithstanding the foregoing, by
executing this Agreement, the Parties acknowledge and agree that the Real Parties shall have no
obligation to further participate in the Litigation , ' ,
obligation te oppose Plaintiff-s'eMt4s to obtain ajudgment against the Defendants and Real Pa#1e&
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er Plainti€fs-`e€ferts-te-reeever attomey' s fees if-Nainti€fs are suseessful-irt thebitigatier}-cxcgptto
4. No other changes. Except as explicitly amended by this First Amendment, all of the
terms and conditions of the Original Settlement Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, City and RF have caused this First Amendment to be duly
executed as of the date first above written.
CITY:
CITY OF SANTA ANA
By:
Kristine Ridge
City Manager
ATTEST:
By:
City Cleric
APPROVED AS TO FORM:
By:
City Attorney
THE RUSSELL FISCHER
PARTNERSHIP, LP
By:
_ z -
ChasjR44
President
A-2020-180-01
ef,Mainti 'e eeess€a14*e-L4ig4ion-exceptto
the extent necessary to honor its indemnity obligations as set forth in the 2019 Pro'el ct Approvals and
JDA between the Parties.
4. No other• changes. Except as explicitly amended by this First Amendment, all ofthe
terms and conditions of the Original Settlement Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, City and RF have caused this First Amendment to be duly
executed as of the date first above written.
CITY:
CITY OF SANTA ANA
Bv���:�
Kristine Ridge 7
City Manager
ATTEST
By
CityClerk
APPROVED AS TO FORM:
City Attorney
1
THE RUSSELL FISCHER
PARTNERSHIP, LP
By:
Chase Russell
President
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A-2020-1$0
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into by the City of Santa Ana
("City"), on the one hand, and The Russell Fischer Partnership, LP ("RF"), on the other hand
(collectively "Patties," or individually "Party"),
RECITALS
A. The Parties are presently engaged in litigation, titled Santa Ana Needs Equity
vs, the City gl'Santa Ana., Orange County Superior Court, Case Nos, 30-2019-01104316-
CU-WM-CXC and 30-2019-01113224-CU-WM-CXC ("Litigation"), In the Litigation,
plaintiffs and petitioners Santa Ana Needs Equity, William Conklin, Karina Rangel Conlin
and Yoon I-Iee Choe (collectively, "Plaintiffs") have filed suit against Defendants and
Respondents City, its City Council and its Plarming Commission (collectively,
"Defendants") and against Real Party in Interest RF (erroneously named as Russell Fischer
LP), including erroneously named third parties Chase Russell, Richard Keith Finkel, Bundy -
Finkel Architects (collectively, "Real Parties").
B. In Plaintiffs' Verified First Amended and Supplemental Petition and
Complaint ("Complaint"), Plaintiffs allege three causes of action against the Defendants,
based upon the City's approval of RF's applications for an automated car wash, fuel station
and convenience store ("2019 Project"). Plaintiffs allege a fourth cause of action against the
Defendants, alleging that the City violated the California Public Records Act. Defendants
and Real Parties deny the allegations in the Complaint.
C. In 2018, the City issued approvals to authorize RF's development of a multi -
tenant commercial building with ancillary drive -through service, service station and
convenience store (collectively, "2018 Project"). The approvals issued by the City for the
2018 Project included a Mitigated Negative Declaration, General Plan Amendment, Zone
Change, Conditional Use Permit ("CUP") and Variance (collectively, "2018 Approvals").
D. In 2019, due to changes in the economy, RF submitted new development
applications to the City. The City issued approvals to authorize development of the 2019
Project. The approvals issued by the City for the 2019 Project included two CUPS, an
amended variance and a Class 32 CEQA Exemption (collectively, "2019 Approvals"),
E. Pursuant to the conditions of approval on the 2019 Approvals, RF is required
to indemnify, defend and hold harmless the City, its officers, employees, volunteers, and
agents from any and all liability demands, claims, actions or proceedings concerning the
2019 Project Approvals, and any alleged action or inaction by the City, any advisory
agency, appeal board or legislative body, including action approved by the voters of the
City. RF's indemnity obligation under this condition of approval includes indemnifying the
City for all attorneys' fees and costs associated with the Litigation. To that end, the City
and RF have entered into a Joint Nondisclosure, Indemnity and Litigation Defense
55394,00057\332,19071.3
Agreement to memorialize RF's obligation to indemnity the City in connection with the
Litigation.
F. The Parties acknowledge and agree that RF has proceeded with good faith
intent and has diligently taken all actions within its power to proceed with the development
of the 2018 and 2019 Projects, in reliance upon the City's issuance of the 2018 and 2019
Approvals.
G, The Parties now wish to fully, finally, and forever settle, compromise, and
resolve any and all claims arising out of, related to, or in connection with the Litigation as
between the City and Real Party, as provided for in this Agreement.
AGREEMENT
NOW, THEREFORE, considering the mutual covenants and agreements contained in
this Agreement, the recitals set forth above, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be legally
bound, the Patties agree as follows:
I. Rescission of the 2019 Approvals. The City shall take all necessary actions
to process and consider the rescission of the 2019 Approvals. The Parties acknowledge
and agree that the City retains its discretion as to whether or not to rescind the 2019
Approvals. The City acknowledges and agrees that the 2018 Approvals have not expired
and were not rescinded by the City, and therefore are valid and in full force and effect,
2. RF's Indemnification Obligation Under the 2019 Approvals. In the event
the City rescinds the 2019 Project Approvals, the City acknowledges that the rescission
would include rescission of all conditions of approval on the 2019 Approvals, including
RF's indemnity obligation except as set forth herein. If the City Council rescinds the 2019
Approvals, the City shall immediately send written notice to RF terminating that certain
Joint Nondisclosure, Indemnity, and Litigation Defense Agreement entered into on March
23, 2020 by and between the City and RF. RF's indemnity obligation shall end the date
that the City Council rescinds the 2019 Approvals. But, RF shall remain responsible for
payment of any attorneys' fees or costs incurred by the City up to the date of rescission but
which may not yet have been formally invoiced.
3. RF's Obligation Regarding Any Attorney's Fees Awarded Plaintiffs. At the
end of the Litigation, if the court awards attorney's fees or costs to Plaintiffs' counsel, RF
shall be responsible to indemnify the City for up to $50,000 of any court -awarded fees
and/or costs.
4. Indemnification, The City shall defend, indemnify and hold harmless RF
and all other Real Parties, their respective agents, officers and employees against and from
any and all liabilities, demands, claims, actions or proceedings and any judgments, costs,
and expenses incidental thereto (including costs of defense, costs associated with
55394.000S'A33249071.3
settlement, and reasonable attorneys' fees), which any or all of them may suffer, incur, be
responsible for or pay out as a result of or in connection with the Litigation and any
challenge to the legality, validity, or adequacy of this Agreement and the proceedings
undertaken in connection with the adoption or approval of the Agreement or its provisions.
5. Third Party Beneficiaries. Richard Keith Finkel, Bundy -Finkel Architects,
Russell Fischer LP, and Chase Russell are the sole third party beneficiaries of this
Agreement, and, as such, possess all of the rights of the Parties to enforce the terms and
conditions hereof.
6. Parties' Actions. The Parties shall take such steps and execute such other
documents as may be reasonably necessary to comply with the provisions of this
Agreement. Notwithstanding the foregoing, by executing this Agreement, the Parties
acknowledge and agree that the Real Parties shall have no obligation to further participate
in the Litigation whatsoever, including without limitation, any obligation to oppose
Plaintiffs' efforts to obtain a judgment against the Defendants and Real Parties, or
Plaintiffs' efforts to recover allorney's fees if Plaintiffs are successful in the Litigation.
7. Releases. Except for the rights and obligations created or reserved by this
Agreement, the Parties hereby release, acquit, and discharge each other and each other's
current, former, and future owners, officers, officials, members, assignees, affiliated
entities, employees, agents, directors, attorneys, and authorized volunteers from any and
all claims, demands, damages, sums of money, costs, expenses, actions, rights, causes of
action, appeals, agreements, promises, obligations, liabilities, and all other liability of any
kind or nature whatsoever whether direct or indirect, known or unknown, suspected or
claimed, fixed or contingent, liquidated or unliquidated, which the Parties have had, now
have, or may hereafter have against each other that was, or could have been, asserted in
and/or arising from the Litigation.
8. Waiver of Civil Code Section 1542. With respect to the foregoing releases,
the Parties hereby acknowledge and represent that they have been fully informed by their
respective counsel of the contents of, and hereby expressly waive any and all rights and
benefits conferred by, the provisions of California Civil Code section 1542, which states
as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN
IRS OR HER FAVOR AT THE TIME OF EXECUTING TI4E RELEASE, WHICH IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
9. Attorneys' Fees. In the event that any Party to this Agreement institutes or
defends against any action, or proceeding, including but not limited to, litigation or
arbitration, to preserve, protect, or enforce any claim or right arising under this
55394.00057133249071.3
A-2020-180
Agreement, the prevailing party in such action or proceeding shall be entitled, in addition
to any and all other relief granted therein, to an award of actual attorneys' fees reasonably
incurred by the prevailing party therein in the prosecution or defense of said action or
proceeding.
10. No Admission of Liability. The Parties acknowledge that this Agreement is
a settlement of disputed claims and shall not in any way constitute or be construed as an
admission of any liability by the Defendants or Real Parties.
11. Representation of Authority. Each Party and each individual signing on
behalf of a Party expressly represents and warrants that it has authority to enter into,
deliver, and perform this Agreement in accordance with its terms, including performance
of the Releases required by this Agreement, and that the individual signing on its behalf
represents that he or she has the authority to bind such Party.
12. Integration. This Agreement contains the entire agreement of the Parties
with respect to the subject matter herein contained. This Agreement may be amended
only by written instrument executed by all of the Parties.
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement on
the date(s) set forth hereinafter.
CITY: THE RUSSELL FISCHER
CITY OF SANTA,,ANA 7 PARTNERSHIP, LP
By:, c..c�..:(, , i�_Z' L C (.' By:
,Mayor Chase Russell
G' President
'}
�.City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER
By:
Sonia Rubio Carvalho, City Attorney
55394.000E M 3249071.3