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HomeMy WebLinkAboutPRESTON, GREGORYA-2016-383 SETTLEMENT AGREEMENT ANIS RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made _, and entered into by and between GREGORY PRESTON, as Trustee of the Letitia Preston Uj rE Lk) ` Testamentary Trust, dated November 17, 1983, and as Trustee of the Richard E. Preston and C?, Donarae Preston Family Trust, dated May 10, 1985 (hereinafter "Plaintiff'), and CITY OF � �' SANTA ANA hereafter "Defendant" or "City"). LU WITNESSETH: WHEREAS, Plaintiff filed an action against the CITY OF SANTA ANA in the Superior ' ? ` Court of the State of California, County of Orange, Central Justice Center District known as r GREGORY PRESTON v. CITY OF SANTA ANA Case No. 30-2016-00868204-CU-OR-CJC (the "Action"). WHERAS, the Action pertains to a Strip of Land on which Plaintiff's building sits. The building is located at 302 East First Street, Santa Ana, California. The building protrudes over the property line approximately 1.20'-1.28' onto the right of way owned by the City (hereafter "Strip of Land"). WHEREAS, the Parties desire to settle fully and finally all differences between them, including, but in no way limited to, those differences described above. 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: First: This Agreement and compliance with this Agreement shall not be construed as an admission by Defendant and of any liability whatsoever, or as an admission by Defendant of any violation of the rights of Plaintiff or any person, violation of any order, law, statute, duty, or contract whatsoever against Plaintiff or any person. Defendant specifically disclaims any liability to Plaintiff or any other person for any alleged violation of the rights of Plaintiff or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of any employees, agents of Defendant. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. Second: (a) The City will grant the Strip of Land at issue in the Action to the Plaintiff; (b) Plaintiff shall have a survey conducted in order to prepare a legal description for the Strip of Land to be granted by Grant Deed from the City to the Plaintiff. The form of the Grant Deed is attached hereto as Exhibit A; Page 1 of 4 (c) The City will bear its own costs in the review and delivery of the Grant Deed and the filing of the Request for Dismissal. Plaintiff will bear its own costs for the survey and the recordation of the Grant Deed. Each party shall bear his/her/its own attorney fees and costs in this Action and the settlement thereof. (d) The City will obtain authorization from the City Council pennitting and instructing the City Manager to execute this Agreement and the Grant Deed; (e) Each party will exchange a fully signed executed copy or original of this Agreement, including the Grant Deed; and (0 In exchange for the original, recordable Grant Deed, Plaintiff's attorney will deliver a signed Request for Dismissal with Prejudice dismissing the Action, Case No. 30-2016-00868204-CU-OR-CJC. The City will file the Request for Dismissal and return a conformed copy to the Plaintiff, Third: (a) Plaintiff and Defendant agree that this Agreement constitutes a full and complete settlement of all claims alleged in the Action. Plaintiff specifically and unequivocally agrees that he/she/it is waiving any and all rights to compensation of any sort as a result of the Action for any alleged damages, costs, or attorney's fees. Defendant is likewise waiving any and all rights, to the extent any exists, for costs or attorneys' fees arising or related to the claims alleged in the Action. (b) Plaintiff acknowledges and agrees that Defendant has made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that he and he alone is liable for all taxes, if any, which arc owed by him on the Strip of Land received hereunder including interest and penalties. Plaintiff will hold Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiff on amounts owed by him. (c) The City represents and warrants that it is the sole owner in fee simple title of the Strip of Land and that there are no encumbrances or liens of any kind on the Strip of Land. The City fiirther represents and warrants that it has all the necessary power and authority to transfer the Strip of Land to Plaintiff pursuant to this Agreement. Neither the execution and delivery of this Agreement by the City, nor the consummation of the transactions contemplated hereby or thereby, will conflict with or result in a breach of any of the terms, conditions or provisions of the City's charter or of any statute, ordinance or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or any Governmental Authority or of any arbitration award. Fourth: Plaintiff represents that, with the exception of Case No. 30-2016-00868204- CU-OR-CJC and the government tort claim associated therewith and submitted to the City of Santa Ana (if any), he has not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of Defendant with any state, federal, or local agency or court and that they will not do so at any time hereafter as it relates to this action and that if any agency or court assumes jurisdiction of any complaint, claim, or action against Defendant on Plaintiff's behalf, Plaintiff will direct that agency or court to withdraw and dismiss with prejudice the matter. Page 2 of 4 Fifth: The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code Section 1542 provides as follows: "A general release floes not extend to claims which the creditor does not know or sraspect 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." Sixth: Notwithstanding the provisions of Civil Code section 1542, each party hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, 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 has or claims to have had, or heretofore had or claimed to have had, which forms the basis of this Action, except the executory provisions of this Agreement. Seventh: Each party signing below represents that he/she/it has investigated the facts and legal issues in this case, has obtained the advice of counsel, and reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to them and that they understand all the provisions of this Agreement, that they understand that in agreeing to this document they are releasing each party hereby from any and all claims which form the basis of this Action and which they may have against each party released, that they voluntarily agree to all the terms set forth in this Agreement, that they knowingly and willingly intend to be legally bound by the same, that they are satisfied they have sufficient knowledge to enter into this Agreement, that they were given the opportunity to consider the terms of this Agreement and discussed them with legal counsel. Each party hereby warrants that they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. Eighth: The Parties hereto represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by any of the parties or by any of the parties' agents, attorneys, or representatives with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. Ninth: This Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, predecessors, successors, and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators, representatives, executors, predecessors, successors, and assigns. Tenth: Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of this Agreement. Eleventh: This Agreement sets forth the entire agreement between the parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter hereof. Page 3 o14 Twelfth: This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the parties hereto. Thirteenth: Each of the parties shall promptly execute and deliver all documents and perform all further acts that may be reasonably necessary or helpful to effectuate the provisions of this agreement. Fourteenth: This Agreement may be executed in counterparts, each of which shall be deemed to be an original. Photocopies or scanned copies (e.g., .pdf copies) of any executed counterpart shall have the same force and effect as an original. This agreement shall not be enforceable against any party until and unless all parties have signed it. Dated: Dated: ATTEST: Datcd: 2�d APPROVED AS TO FORM: Dated: Dated: GREGORY PRESTON, as Trustee of the Letitia Preston Testamentary Trust, dated November 17, 1983, and as Trustee of the Richard E. Preston and Donarae Preston Family Trust, dated May 10, 1985 GERARDO MOUET, Acting City Manager 'I MARIA D. HUIZAR, Cleric o& e Council BAKER LAW GROUP John H. Baker, Esq. Attorney for Plaintiff, Gregory Preston SONIA R. CARVALHO CITY ATTORNEY Lisa Storck Assistant City Attorney Attorneys for Defendant, City of Santa Ana Page 4 of 4 RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO John H. Balser, Esq. Balser Law Group 7700 Irvine Center Dr., Suite 800 Irvine, CA 92618 APN 398-517-01 SPACE ABOVE THIS LINE FOR R£COR4ER'S USE ONLY THE UNDERSIGNED GRANTOR(S) DECLARE(S) UNDER PENALTY OF PERJURY THAT THE FOLLOWING IS TRUE AND CORRECT DOCUMENTARY TRANSFER TAX $ THIS 15 A TRUST TRANSFER UNDER R&T C § 62 ❑ COMPUTED ON FULL VALUE OF PROPERTY CONVEYED, OR ❑ TRANSFER 15 TO A REVOCABLE TRUST ❑ COMPUTED ON FULL VALUE LESS LIENS AND ❑ TRANSFER 1S TO A TRUST WHERE THE TRUSTOR OR THE ENCUMBRANCES REMAINING AT TIME OF SALE TRUSTORS SPOUSE 15 THE SOLE BENEFICIARY THERE IS NO DOCUMENTARY TRANSFER TAX ❑ CHANGE OF TRUSTEE HOLDING TITLE REASON: NO PAYMENT BY GRANTEE TO CITY ❑ OTHER GRANT DEED GRANTOR(S): CITY OF SANTA ANA, a municipal corporation, hereby vacates and grant(s) to: GRANTEE(S): GREGORY PRESTON, as Trustee of the Letitia Preston Testamentary Trust, dated November 17, 1983, and as Trustee of the Richard E. Preston and Donarae Preston Family Trust, dated May 10, 1985 all of the right, title and interest of Grantor(s) in and to the following real property, located in the City of Santa Ana, County of Orange, State of California, described in Exhibit A attached hereto CITY OF SANTA ANA Dated: , 2017 By GERARDO MOUET, Acting City Manager ATTEST: Dated: , 2017 MARIA D. RUIZAR, Cleric of the Council 7Exhhibit A Mail Tax Statements to Person Named in Upper Left Box B AW PW F]\DOCS�PR ESANG R. DEC) 032217#1 ' -n Exhibit f6A" Legal Description for Vacation of a Portion of First Street That portion of land on First Street, condemned to the City of Santa Ana for street purposes per the Final Judgment recorded on June 24, 1930, in Book 393, Page 327, of Official Records, and shown on Blee's Subdivision, in the City of Santa Ana, County of Orange, State of California, as per map recorded in Book I Page 67 of Miscellaneous Maps, in the office of the county recorder of said county, described as follows: Beginning at the Northeast Corner of Lot I of said Blee's Subdivision; thence South 00 Degrees 00'00" East 3.72 feet to a line which is parallel with and 3.72 feet south of the northerly line of said Lot I, said point being the True Point of Beginning of this Description; thence westerly along said parallel line, north 90 degrees 00' 00" west 80.35 feet; thence south 00 degrees 00' 00" west 1.28 feet to a line which is parallel with and 5.00 feet south of said northerly line of Lot 1; thence easterly along said parallel line, north 90 degrees 00'00" east 80.35 feet to the intersection of said parallel line which is 5.00 feet south of said northerly line of Lot l with the easterly line of said Lot 1; thence along said easterly line of Lot 1, north 00 degrees 00' 00" east 1.28 feet to the true point of beginning. Said easement contains 102.85 square feet, more or less. Said strip of land is shown on Exhibit "13 attached hereto for reference only. As of the date of recording, the building located at 302 East First Street sits on top of said strip of land. Metes and bounds description determined by survey. RER' A Dated; 'March 14 , 2017 �' FACS 6966 RftFRT G. MART{ Registered Professional Surveyor Stamp fl. :1'Al�AIC}\�OO$�P4ESANGR. CI p Exhibit A, Page 2 02141M i 4. 0 �N O i N R R (�j r OR ... 0 (� �] 4 . Q� Q O W ®ad OdL Z 'u�iv V1ir i�o w OAS vi rn u W � Is19,3'�I S (y WLai ~ ~ q Gly � w LL.j Lai tz ;co w w W uj .-. Lc? 10O w 00 (L (��yy M W W —i •" '"" � O gnNgAV 90NVWOExhibit A, Page co CERTIFICATE OF ACKNOWLEDGMENT "A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document." State of California County of Orange On , 2017, before me, , allotary Public, personally appeared GERARDO MOUET, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) RIGHT THUMBPRINT—OPTIONAL RIGHT THUM SPRINT --OPTIONAL CAPACITY CF SIGNATOR ❑ INDIVIDUAL D LIMITED PARTNER GENERAL PARTNER El OYHER d TRUSTEE �D ATTORNEY-IN-FACT IJ CORPORATE OFFICER Exhibit A, Page 4 Mail Tax Statements to Person Named in Upper Left Box B:\WPW 61dOCr �PR ESANGR. DrD 032217#1 .' —h