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HomeMy WebLinkAboutDEUTSHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-2INSURANCE NOT REQUIRED WORK MAY PROCEED A-2021-254 CLERK OF COUNCIL DAT5 SETTLEMENT AGREEMENT AND �6� ) /�M\ RELEASE OF ALL CLAIMS 0'. Goo eSe 1. J 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 D corporation (the "City" and/or "Petitioner"), and DEUTSCHE BANK NATIONAL TRUST Z COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-2, a national banking association; GOLDEN STATE FINANCE AUTHORITY, a California Joint co Powers Authority; CALIFORNIA MUNICIPAL FINANCE AUTHORITY, a Joint Powers �v ro Authority; ARVEST CENTRAL MORTGAGE COMPANY, a mortgage servicer (hereinafter collectively referred to as "Respondents"). Petitioner and Respondents are also collectively referred to as "the Parties" herein or individually as a "Party." WITNESSETH: WHEREAS, the City 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; and WHEREAS, the Respondent Deutsche Bank National Trust Company as Trustee for Harborview Mortgage Loan Trust 2007-2 ("Property Owner" and/or "Respondent Deutsche Bank") is the current owner of property located at 2901 W. Lingan Lane, Santa Ana, California, identified as Assessor's Number 109-693-12 (the "Property"); and WHEREAS, Petitioner filed an action against Respondents, in the Superior Court of the State California, County of Orange, Central Justice Center District known as CITY OF SANTA ANA V. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-2, et al., Case No. 30-2021-01233313-CU- PT-CJC (the "Action"). The City's Action in this petition includes a prayer for the Court to appoint a receiver to take possession and control of the Property pursuant to California Health &Safety section 17980.7(c) and bring the Property into compliance with the law, attorneys' fees and costs, and for other equitable relief against Respondents; and WHEREAS, Thien Phuong Pham, an individual ("Buyer"), intends to acquire the Property from the Property Owner, will assume all liabilities and claims associated with the Action and will bring the Property into compliance with State laws and City of Ana Municipal Codes; and WHEREAS, Buyer has agreed, by executing a Compliance Agreement (as defined in paragraph 2 below), to pay the City's staff time, reasonable attorney's fees, and abatement costs and make a charitable donation as a result of this Action; and WHEREAS, this Agreement is conditioned on the Buyer obtaining title to the Property and executing a Compliance Agreement (as defined below) with the City; 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 6 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. Within five (5) business days of the later to occur of the following events, the City will file a dismissal of this Action: (a) delivery by Buyer of an executed copy of the Compliance Agreement in accordance with paragraph 2, below; (b) delivery by Respondent Deutsche Bank of an executed copy of this Agreement to Assistant City Attorney Jose Montoya; and (c) payment of the amounts identified in paragraph 3, below. 2. Compliance Agreement. Concurrently with this Agreement, the City will execute a Compliance Agreement ("Compliance Agreement") with Buyer to ensure the proper compliance with the operational restrictions, maintenance, and upkeep of the Property, improvements, and permitted uses. A copy of the Compliance Agreement is attached hereto for reference purposes only as Exhibit "A". The execution of the Compliance Agreement by Buyer is a condition precedent to satisfy the mutual release of Petitioner and Respondents by the other of all Claims as provided by paragraphs 6 and 7, below. The Parties acknowledge and agree that following the full execution of the Compliance Agreement any issues related to the performance by Buyer under the terms of the Compliance Agreement shall not involve Respondents and Respondents shall have no responsibility or liability for said performance or for any other issues related to the Compliance Agreement. 3. Staff Time, Reasonable Attorney's Fees, Abatement Costs. In consideration for the final settlement of this Action, and in accordance with the terms of this Agreement and Compliance Agreement, Respondents stipulate and agree that the City of Santa Ana will be paid a total of Twelve Thousand U.S. Dollars ($12,000) in staff time, abatement costs, reasonable attorney's fees and other associated damages incurred in this Action. The Parties agree that the payment shall be made by the Buyer in accordance with the Compliance Agreement. This payment shall be made payable to the City within thirty (30) days of the execution of this 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. Respondents agree that a donation of Ten Thousand Dollars ($10,000) will be made to Hand To Hand Relief, a non-profit organization. This donation shall be made by Buyer. Buyer shall provide proof to the City within thirty (30) days of the making of such donation. 4. Withdraw of Lis Pendens. Upon the payment of monies outlined in paragraph 3, City agrees to withdraw the recorded Notice of Pendency of Action filed at the Orange County Clerk -Recorder's Office against the Property on December 1, 2021 so the Buyer can proceed with the purchase of the Property. 5. Transfer of Ownership. In the event that the Buyer cannot close escrow and Respondent Deutsche Bank retains ownership of the Property, this Agreement shall be null and void and the Action shall continue with Respondents being subject to the City's requested relief from the Court. Release. (a) Notwithstanding the provisions of Civil Code section 1542, Respondents hereto hereby irrevocably and unconditionally release and forever discharge Petitioner and each and all of Petitioner, its officers, agents, directors, supervisors, employees, agents, representatives, and Petitioner successors and assigns and all persons acting by, through, under, or in concert with Petitioner from any and all charges, complaints, claims, violations and liabilities of any kind or nature whatsoever, known or unknown suspected or unsuspected ( hereinafter referred to as a "Claim" or "Claims") which Respondents at any time heretofore had or claimed to have or which Respondents at any time now or hereafter may have or claim to have, which relates or pertains to the Property in any manner and/or to the allegations contained in the complaint filed in the Action. (b) Notwithstanding the provisions of Civil Code section 1542, Petitioner hereto hereby irrevocably and unconditionally release and forever discharge Respondents and each and all of Respondents' officers, agents, directors, supervisors, employees, agents, representatives, trustees, prior trustees, all persons acting by, through, under, or in concert with Respondents from any and all Claim or Claims which Petitioner at any time heretofore had or claimed to have or which Petitioner at any time now or hereafter may have or claim to have, which relates or pertains to the Property in any manner and/or to the allegations contained in the complaint filed in the Action. (c) The releases found in this paragraph 6 are not applicable against Buyer, on behalf of itself, its successors and assigns and any subsequent owner of the Property. 7. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Parties, and each of them, acknowledge that they have been advised by legal counsel and are familiar with theprovisions 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 PARTIES, 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. 8. Predecessors. 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 partthereof, and any assigns and successors -in -interest of the Parties. 9. 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 by that Party. 10. Representations. Each Party further represents and warrants, as to itself, but not as to any other Party, as follows: (a) 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. (b) 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. (e) 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. (d) The terms of this Agreement are contractual and not a mere recital. (e) 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. (f) Each Party executing this Agreement in a representative capacity represents and warrants that it is empowered to do so. 0 11. Enforcement of Settlement. The Parties agree that this Agreement may be enforced pursuant to California Code of Civil Procedure Section 664.6. 12. 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 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. Without limiting the generality of the immediately preceding sentence, the Parties acknowledge and agree that actions to enforce the performance of the Compliance Agreement shall not be considered an action to enforce this Agreement. 13. 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. 14. 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. 15. Integrated Agreement. This Agreement constitutes 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 tothe 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. 16. 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. 17. 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. 18. 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. Delivery of an executed counterpart of a signature page to this Agreement or any of its exhibits by facsimile or electronic mail will be effective as delivery of a manually executed counterpart of this Agreement or any of its exhibits. 19. 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. 20. 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] A-2021-254 IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. PARTIES: Dated: 4& 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, and for The People of the State of California Y. Kristine Midge, 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, and for The People of the DatedState of California�� Gomez, Clerk of the Council PROPERTY OWNERS Dated: bkg�L a. I _ C'eo' ' Gerald Brown Respondent Deutsche Bank National Trust Company as Trustee for Harborview Mortgage Loan Trust 2007-2 [Signatures Continued on the following page] APPROVED AS TO FORM: SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Dated: 12/2812021 U Jose Montoya Assistant City Attorney Attorney for Petitioner CITY OF SANTA ANA Dated: 1 /3/22 t3o le�y 7442, Brandon J. Mika Tiffany & Bosco PA Attorney for Respondent Deutsche Bank National Trust Company as Trustee for Harborview Mortgage Loan Trust 2007-2 EXHIBIT "A" [Compliance Agreement Intentionally Omitted] EXHIBIT B 1. Buyer shall agree, at its own costs, to submit all necessary plans and obtain any and all permits from the City for the rehabilitation of the Property within thirty (30) days from January 10, 2022 and will complete all work within forty five (45) days from February 10, 2022. The City Manager or their designee may grant additional one (1) month extensions if the Buyer can demonstrate that significant progress, as determined at the City's discretion, is being made towards rehabilitation of the Property. 2. Buyer shall be required to keep the Property secured at all times to prevent unauthorized entry. if Buyer fails to secure the Property, the City shall provide the Buyer with twenty-four (24) hours notice to immediately secure the Property. If Buyer fails to secure the Property within twenty-four (24) hours, the City shall secure the Property (e.g. security guard, board - up, etc.) at Buyer's sole cost and expense. Maintaining the Property secure includes, but is not limited to closing and locking of windows, doors (walk-through, sliding and garage), and any other opening that may allow access to the interior of the property and or structure(s). In the case of broken windows, securing means re -glazing or boarding the window. Buyer may remove boards, as necessary, when Buyer secures all permits and his contractor commences work to rehabilitate the Property. 3. Buyer shall provide the City with a cashier's check in the amount of Ten -Thousand Dollars ($10,000) ("Security") no later than January 10, 2022. If Buyer fails to secure the Property in accordance with paragraph 2 of this Exhibit A, City shall secure the Property by utilizing the funds in Buyer's Security. Any unutilized finds remaining in the Security shall be returned by City to Buyer when Buyer secures all permits and his contractor commences work to rehabilitate the Property. 4. Buyer shall install and maintain a minimum six-foot (6) high chain -link fence adjacent to the property boundaries until the Property is occupied. Buyer may remove fence when it secures all permits and contractor commences work to rehabilitate the Property. The Property shall be posted with the name and 24-hour contact phone number of the local property management company. The posting shall be no less than eighteen (18) inches x twenty-four (24) inches, shall be of a font that is legible from a distance of forty-five (45) feet, and shall contain the following verbiage: "THIS PROPERTY MANAGED BY " and "TO REPORT PROBLEMS OR CONCERNS CALL (name and phone number)." The posting shall be placed on chain -link fence. Once the chain -link fence may be removed, the posting shall be placed in the interior of a window facing the street to the front of the property so it is visible from the street, or secured to the exterior of the building/structure facing the street of the front of the property so it is visible from the street. If no such area exists, the posting shall be on a stake of sufficient size to support the posting, in a location that is visible from the street to the front of the property, and to the extent possible, not readily subject to potential vandalism. Exterior posting must be constructed of, and printed with weather resistant materials. This paragraph 5 shall be null and void once the Buyer occupies the Property. 10