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HomeMy WebLinkAboutAWANS ENTERPRISES, INC.44o`V A-2020-252 MNC REQUIRED WOF "PROCEED JOUNGIL 0:Crvoo)GioNrN SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This Settlement Agreement and Release of Claims ("Settlement Agreement") is made by and between the City of Santa Ana, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California ("City"), and Awans Enterprises, Inc. ("Awans"). The City and Awans shall collectively be referred to as the "Parties." The effective date of this Settlement Agreement is the date last executed. RECITALS WHEREAS, on May 24, 2019, Awans filed an inverse condemnation action entitled Awans Enterprises, Inc. e City of Santa Ana, Orange County Superior Court Case No. 30-2019- 01072509- CU-EI-CXC ("Action"). The City filed its Answer on July 29, 2019. WHEREAS, prior to the filing of the Action, the City was engaged in the Warner Avenue Street Widening Project in the City of Santa Ana, California in order to widen and improve a portion of Warner Avenue ("Project"). As part of the Project, the City acquired a fee interest in the real property at 2245 South Main Street on which Awans, as lessee of the prior owner, previously operated an ARCO-branded gas station, smog testing service, and a convenience store ("Property"). WHEREAS, by the Action, Awans alleges that the City's acquisition of the Property caused Awans's displacement from the Property, thereby resulting in a loss of business goodwill, among other claims. WHEREAS, the Parties desire to settle all present, past and future controversies, claims, causes of action or purported causes of action, defenses, and disputes, both real and potential, the Parties may have with respect to the Property, the Project, and the Action. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and mutual covenants set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 1. RECITALS The Recitals are incorporated into and are made a part of this Settlement Agreement. The purpose of this Settlement Agreement is to settle all claims, including without limitation increased compensation, fees, interest, costs, goodwill benefits, fixtures and equipment, pre - condemnation damages, claims for inverse condemnation, and relocation costs to which Awans may be entitled as against the City or any other entity or person named in the Action. 2. COMPENSATION. (a) City shall pay Awans the total sum of $1,800,000 (the "Settlement Amount") within 30 days of Plaintiffs execution of this Settlement Agreement. Payment shall be made by wire transfer payable to Palmieri, Hennessey & Leifer, LLP, wire instructions as follows: ACCOUNT NAME: PALMTERI, HENNESSEY & LEIFER, LLP SWIFT CODE: ROUTING No.: ACCOUNT No.: BANK: CHASE BANK ADDRESS: 17585-A HARVARD AVE, IRVINE, CA 92614 USA. (b) In exchange for the payment of the Settlement Amount, Awans shall dismiss the Action with prejudice, as against all Parties, within five days of receiving payment. 3. RELEASE. (a) For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby release, waive and discharge each other, and their affiliated entities, and each of their respective officers, officials, employees, agents, volunteers, contractors and attorneys from any and all alleged and actual claims, damages, fees, costs, remedies, causes of action, demands, and other liabilities (collectively, "Claims") which the Parties now have or may have, arising out of or in any way related to the Property, the Project or the Action, including any claim for loss of goodwill, any claim for relocation benefits, and all Claims asserted, or that may have been asserted, in the Action. The foregoing release mid waiver ('Release' ), applies to all Claims, whether retrospective, current, or prospective, known or unknown, foreseeable or unforeseeable related to the Property, the Project or the Action. The Release is made by the Parties for themselves, their agents, assigns and related entities. (b) It is the intention of the Parties that the Release shall be effective as a bar to all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, interest, and attorneys' fees, of every character and kind, known or unknown, existing or contingent, latent or patent; and in furtherance of such intention, the Parties expressly waive any and all rights conferred upon it by the provisions of California Civil Code Section 1542, which reads as follows: 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. (c) The Parties acknowledge that they may hereafter discover facts or law different from or in addition to those which they now believe to be true with respect to the Release. The Parties agree that the Release shall be and remain effective in all respects, notwithstanding such different or additional facts or law or any parties discovery thereof. The Parties shall not be entitled to any relief in connection therewith, including but not limited to any damages or any right or claim to set aside or rescind this Settlement Agreement. 4. NEcEssAuv ACTS. Each Party will perform any further acts and execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Settlement Agreement. 5. AuTnourry To SIGN. Each Party warrants that the individuals who have signed this Settlement Agreement on behalf of that Parry have the legal power, right, and authority to so sign and thereby bind that Party and its heirs, personal representatives, successors and assigns and any person or entity that may otherwise be entitled to grant the Release. 6. ENTIRE AGREEMENT; AMENDMENTS. This Agreement is the entire agreement between the Parties concerning the subject matter hereof, and supersedes any prior negotiations, discussions, oral or written communications, or agreements between the Parties. 'The terms of this Agreement may only be modified or amended by an instrument in writing executed by all Parties. 7. GOVERNING Law; VENUE. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action or proceeding concerning this Settlement Agreement shall be filed and prosecuted in the appropriate California state court in the County of Orange, California. 8. No INTERPRETATION AGAINST DRAFTER; ADVICE OF COUNSEL. This Settlement Agreement is to be construed fairly and not in favor of or against any Party regardless of which Party or Parties drafted or participated in the drafting of its terms. Each Party acknowledges it has had the opportunity to receive independent legal advice with respect to the advisability of making this Settlement Agreement and with respect to the meaning of California Civil Code Section 1542, and that they are freely and voluntarily entering in this Settlement Agreement and understand this Settlement Agreement in its entirety. 9. No WAIVER. The failure to insist on any one occasion upon strict compliance with any of the covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of any rights or powers hereunder at any other time or times. 10. No l umn PARTY BENEFICIARms. The Parties acknowledge that there are no express or implied third party beneficiaries to this Settlement Agreement. No person or entity not a signatory hereto shall have any rights or causes of action against any Party hereto as a result of that Parry's performance or nonperformance of any obligation hereunder. it. No PRIOR ASSIGNMENTS. Awans represents and warrants to the City that it has not and will not attempt to assign, transfer, pledge, hypothecate or convey any right or interest it may have in the benefits or any rights or items it is obligated to release as part of this Settlement Agreement. Awans further represents and warrants that it has not made any transfer, pledge, conveyance, assignment or hypothecation of any claim or cause of action that is the subject of this Settlement Agreement which it may have or claim to have against the City. 12. SEvERAmLrrv. If any term or provision of this Settlement Agreement shall be held invalid or unenforceable, the remainder of this Settlement Agreement shall remain in full force and effect. 13. CAPTIONS. Any captions to, or headings of, the paragraphs or subparagraphs of this Settlement Agreement are solely for the convenience of the Parties, are not a part of this Settlement Agreement, and shall not be used for the interpretation or determination of the validity of this Settlement Agreement or any provisions hereof. 14. ATTORNEYS' FEES. In the event that a motion for entry of judgment or enforcement of this Settlement Agreement is filed, or any action or proceeding is filed by any Party hereto against another Party hereto relating to this Settlement Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs. 15. EACH PARTY To BEAR OWN COSTS. Except as otherwise provided herein, each Party shall bear its own legal expenses and costs incurred related to the Properly, the Project, the Action, and in the preparation and review of this Settlement Agreement, including any costs or fees associated with Code of Civil Procedure section 1036. 16. SUCCESSORS AND ASSIGNS. This Settlement Agreement shall be binding upon and shall inure to the benefit of the successors, assigns, personal representatives, executors, estate, heirs, agents and related entities of the respective Parties. 17, COUNTERPART EXECUTION. This Settlement Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. This Settlement Agreement may be executed on counterpart signature pages and may be signed by fax or scanned email signature. IN WITNESS WBERF,OF, each Parry has executed this Settlement Agreement on the date which appears next to its/his signature below. Dated: 6 GA51Gkl 07 � � ANS ENTERPRISES, INC. By: - 4 Name: A-2020-252 Dated: 12, - 01' Zb APPROVED AS TO FORM: December 7, 2020 Dated: Title: CITY OF SANTA ANA By Kristine Ridge City Manager ATTEST: n LERK OF THE COUNCIL CITY OF SANTA ANA Daisy Gomez, MMC (�� Clerk of the Council By: �. Jdfin M.Funk Attorneys for Defendant City of Santa Ana December 7, 2020 Dated: PALMIERI, HENNESSEY & LEIFER, LLP B r Mi ae tf Att eys or amtiff Awans Enterprises, Inc. Page 5 of 5