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HomeMy WebLinkAboutLEE, YONG JAE AND HEA JUNG LEESETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS This Settlement Agreement and Mutual Release of Claims (hereinafter referred to as the "AGREEMENT") is entered into by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ( "CITY ") and YONG JAE LEE AND HEA JUNG LEE ( "LEES "). The CITY and LEES are hereinafter sometimes referred to individually as "PARTY" and collectively as the "PARTIES." The Effective Date of this AGREEMENT shall be the date on which the AGREEMENT has been fully executed by the CITY and LEES. In order to avoid the costs, expense, and uncertainty of protracted litigation, the PARTIES hereby enter into this AGREEMENT as set forth below. RECITALS This AGREEMENT is based on the following facts: A. LEES operated an Acupuncture Business, commonly known as Santa Ana Acupuncture located at 1411 North Bristol Street, Santa Ana, CA 92706 ( "PROPERTY "). LEES also owned the PROPERTY, which is unencumbered. B. The PARTIES desire to resolve the CITY's acquisition of the PROPERTY in accordance with the terms and conditions set forth herein. C. The PARTIES acknowledge that the payment as set forth in paragraph I and other consideration given inconncotion with this AGREEMENT are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the PARTIES herein released, Page 1 of 8 43766913 -N]476,1 D. The PARTIES agree that this AGREEMENT satisfies all claims regarding the acquisition of the subject PROPERTY such as residential relocation, furniture, fixtures and equipment, business relocation, loss of business goodwill and the purchase of the real property in a global settlement amount of $840,000.00. The PARTIES acknowledge that they are waiving significant legal rights and/or claims by entering into this AGREEMENT. Each PARTY has consulted with legal coLmsel, has a full and complete understanding of the terms and legal effect of the AGREEMENT, and intends to be bound thereby. TERMS OF AGREEMENT 1. Payment: The CITY shall pay to LEES the sum of $840,000.00 (Eight Hundred and Forty Thousand Dollars) as the final total compensation for the acquisition of the subject PROPERTY. The CITY as soon as practical after full execution of this Agreement and Deed attached hereto as Exhibit 1, but in no event later than twenty (20) days thereafter, shall pay $840,000.00 via wire transfer as follows: AlvaradoSmith Client Trust Account, Acct # 844164988, Routing Number 322271627, Swift # Chasus33. The LEES agree, that the consideration received pursuant to this paragraph constitutes full satisfaction of any and all obligations of the CITY to the LEES. 2. Condemnation, CITY and LEES acknowledge that this transaction is a negotiated settlement in lieu of CITY exercising its power of eminent domain. CITY and LEES further acknowledge that CITY is acquiring the Subject Property set forth herein under the threat of the power of eminent domain._ 3. CITY and LEES agree that LEES may remain in the PROPERTY for thirty days from the date that the $840,000 payment described in Paragraph I above is tendered or June 30, 2016, whichever date is later. The LEES will provide any keys to the CITY immediately upon the vacation Page 2 of 8 4376691.1 - N1476J of the PROPERTY, and will provide written notice of the specific vacation date from the PROPERTY at least five days prior to the same. 4. Releases: Except for the obligations expressly set forth in this AGREEMENT, the CITY agrees to release and forever discharge the LEES and the LEES agree to release and forever discharge the CITY, and each of their respective parent companies, officers, directors, shareholders, partners, members, agents, insurers, employees, attorneys, successors and assigns, parents, affiliates, subsidiaries, related entities and all of their officers, directors, shareholders, partners, members, agents, insurers, employees, attorneys, successors and assigns and each of them, from any and all claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions or causes of action, of every kind and nature whatsoever, including those for damages, the condition of the PROPERTY and its improvements, compensation, relocation assistance, relocation benefits, loss of goodwill, compensation for personal property (loss of inventory), furniture, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees existing as of the date of this AGREEMENT, whether known or unknown, anticipated or not, suspected or not, arising directly and /or indirectly from or directly and/or indirectly connected to the PROPERTY and LEES business on the PROPERTY. 5, Waiver of Civil Code section 1542: The PARTIES acknowledges that he, she or it, as applicable, is familiar with and has been advised by his, her or its, as applicable, attorney with respect to the provisions of California Civil Code Section 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER 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. Page 3 of 8 4376691.1 --N1476,1 The PARTIES acknowledge that he, she or it, as applicable, may have sustained damages, losses, fees, costs or expenses that are presently unknown and unsuspected, and that such damages, losses, fees, costs or expenses might give rise to claims in the future. Nevertheless, the PARTIES acknowledge that this AGREEMENT has been negotiated and agreed upon in light of such possible damages, losses, fees, costs or expenses and acknowledges and waives such claims. . 6. Release Effective Upon Subsequent Discovery of Existing Facts: The PARTIES acknowledge and agree that even if they later discover facts in addition to, or different from, those which either they now know or believe to be true with respect to the subject matter of this AGREEMENT, that it is their intention to fully settle and release and forever discharge all of the claims that are released and discharged by this AGREEMENT. The releases herein shall be, and shall remain in effect, as full and completed releases, notwithstanding the discovery or existence of additional or different facts. The PARTIES accept and assume the risk that such facts may be in addition to or different from the facts now known or believed to be true and agrees that the releases herein shall remain in all respects effective and shall not be subject to termination or rescission by reason of any such additional or difference in fact. 7. Severability: If any term of this AGREEMENT is determined by any court to be unenforceable, the other terms of this AGREEMENT shall nonetheless remain in full force and effect. 8. Non-Assignment: Each PARTY hereby represents and warrants that they or it, as applicable, has not heretofore assigned or transferred, or purported to assign or transfer, to any person or entity any of the claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions or causes of action released by this AGREEMENT. Page 4 of 8 4376691.1 - N1476.1 9. Authoritv: Each PARTY hereby represents and warrants that the party executing this AGREEMENT is a duly authorized signatory. 10. Independent Advice: Each PARTY acknowledges and agrees that he, she or it, as applicable, has been represented throughout the negotiation and documentation of this AGREEMENT by counsel of the PARTY'S choice and has been advised by such counsel with respect to this AGREEMENT and the effect of the releases given in this AGREEMENT. Each PARTY further acknowledges and agrees that he, she or it, as applicable, has read this AGREEMENT, knows its contents and effect and, in executing this AGREEMENT, has relied solely on their or its, as applicable, own judgment, belief and knowledge and the advice and recommendations of such PARTY'S counsel. Neither PARTY has been induced to enter into this AGREEMENT by any representation or statement of any other party not expressly contained in this AGREEMENT. 11. Successors and Assigns: This AGREEMENT shall be binding upon the successors and assigns of the PARTIES to this AGREEMENT. 12. Integration; Conditions Precedent: This AGREEMENT shall be of no force or effect, and will be neither binding nor enforceable, unless and until the AGREEMENT has been fully executed by the PARTIES. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any PARTY to any other PARTY with respect to the subject matter of this AGREEMENT. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are of no force or effect. 13. No Admission of Liability: Each PARTY acknowledges and agrees that this AGREEMENT accomplishes the compromise of disputed claims and is not intended to constitute Page 5 of 8 4376691.1 -- NI476.1 an admission of liability, wrongdoing or error on the part of PARTY. Any liability, wrongdoing or error is expressly denied by each PARTY to this AGREEMENT. 14. Additional Documents: Each of the PARTIES agree to perform such further acts, and execute and deliver such further documents, as may be reasonably necessary to carry out the provisions of this Agreement. 15. Titles and Captions: Titles and captions contained in this AGREEMENT are inserted as a matter of convenience and for reference, and are not intended and shall not be construed to define, limit, extend or otherwise describe the scope of this AGREEMENT or any provision of this AGREEMENT. 16. Modification and Amendment: No modification or amendment of any of the terms or provisions of this AGREEMENT shall be binding upon any PARTY unless made in writing and signed by such PARTY or by a duly authorized representative or agent of such PARTY. 17, Governing Law: This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly performed within said state. 18. No Construction: No PARTY or PARTY'S counsel shall be deemed to be the drafter of this AGREEMENT for purposes of interpreting or construing any of the provisions of this AGREEMENT. This AGREEMENT shall be interpreted in accordance with the fair meaning of its language and not strictly for or against any of the PARTIES to this AGREEMENT. 19. Execution in Counterparts: This AGREEMENT may be executed on separate counterparts and will become effective upon signature by all PARTIES upon one or more of such counterparts. Page 6 of 8 4376691.1 -- N1476.1 04/14/2010 11:47 FAX [a 009 IN WITNESS THFRBOF, the following have signed this AGREEMENT on the dates indicated below. LEES: Ii A JUNG ' ATTEST: MARIA D, HUIZAR Clerk of the Council APPROVED AS TO FORM: SANTA R. CARVALHO City Atto c By: ANDOVA hie Assistant City A �1 APPROVED AS TO FORM: ALVAItADOSMITH „,.�^~'""° Vll�i A. DAX Attorney for the LEES 4392402.2 -- N1476.1 Date: e(-- i5 Date: r �� C F SANTA NA DAVID CAVAZOS City Manager Page 7 of 8