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HomeMy WebLinkAboutFLAG TRUCKING, INC JACK MCCLUREWT t wonitVAV NP 4TE , OLEW of t;tr_wtr, i01 O p-: G�tCJ C �usu-toniaya)�o)T.� N-2021-235 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 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 corporation, and THE PEOPLE OF THE STATE OF CALIFORNIA, by the City Attorney for the City of Santa Ana (hereinafter "Plaintiffs"), and FLAG TRUCKING, INC, JACK MCCLURE, an individual, and DOLORES L. MCCLURE, an individual (hereinafter "Defendants"). Plaintiffs and Defendants are also collectively referred to as "the Parties" herein. WITNESSETH: WHEREAS, Santa Ana 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 Defendants are the current owners of the property located at 938 E. 2"1 Street, Santa Ana, California, identified as Assessor's Parcel Number 398-473-10 (the "Property"); and WHEREAS, Plaintiffs filed an action against Defendants, in the Superior Court of the State California, County of Orange, Central Justice Center District known as CITY OF SANTA ANA, et al. v. FLAG TRUCKING, INC., et al., Case No. 30-2020-01166481-CU-MC-NJC (the "Action"). The City's complaint in the Action includes a prayer for injunctive relief, civil penalties, attorneys' fees and costs, and other equitable relief against Defendants; and WHEREAS, SAMIR SHOSHANI, managing member, for 99 SOUTH MLK LLC, a Nevada limited liability company ("Buyer") intends to acquire the Property from Defendants, 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, this Agreement is conditioned on the Buyer retaining full title to the Property and executing a Property Compliance Agreement 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 3 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. Sti ulation for Dismissal of Action. Within five (5) business days of the later to occur of Clio following events, the City will file a dismissal of the Action: (a) Buyer delivers an executed copy of the Compliance Agreement in accordance with paragraph 2, below; (b) Defendants deliver• an executed copy of this Agreement to the City; and (c) payment of the amounts identified in paragraph 3, below, 2. Pro er G Comuliflnco Agrectan , Concurrently with this Agreement, the City will execute a Property 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 Property Compliance Agreement is attached hereto as Exhibit "A" and is incorporated herein by this reference. The Property Compliance Agreement is a condition precedent to satisfy the release of Defendants of all Claims as provided by paragraphs 6 and 7. 3• StaffTimne Reasonable Attorney's Fees, Abatement Costs, hi consideration for the final settlement of this Action, and in accordance with the terms of this Agreement, Defendants stipulate and agree to pay the City of Santa Ana a total of Forty Thousand U.S. Dollars ($40,000) in staff time, abatement costs, reasonable attorney's fees and other associated damages incurred in this action made payable to City of Santa Ana. This payment shall 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. Defendants agrees that a donation of five Thousand Dollars ($5,000) will be made to the Santa Ana Police Athletic and Activity League (" SAPAAL"), a community resource program focused on reducing gang violence amongst at risk students. Payments shall be made payable to "Santa Ana Police Athletic and Activity League" as follows: Santa Ana Police Athletic and Activity League, Attn: Commander Michael Claborn, Santa Ana Police Department, 60 Civic Center Plaza, P. O. Box 1981, Santa Ana, CA 92701, Defendants will provide proof to the City within sixty (60) 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 February 2, 2021, 5. Transfer of Ownershin. Iu the event that the Buyer cannot close escrow and the Defendants retain ownership of the Property, this Agreement shall be null and void and the Action shall continue with Defendants being subject to injunctive relief, civil penalties, attorneys' fees and costs, and other equitable relief at the Court deems necessary. 6. Release, Notwithstanding the provisions of Civil Code section 1542, each party hereto hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, agents, 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 heretofore had or claimed to have or which each releasing party at any time hereafter may have or claim to have, Incidental to the incident(s) which forms the basis of Clio Action. 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 Defendants acknowledge that they have been advised by legal counsel and are familiar with the provisions 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 I4IM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." THE SETTLING DEFENDANTS, 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 describe(] 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. Successors and Assignns. 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 leaseliold interest, or any part thereof, 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, 10. Representations. Each Party further represents and warrants, as to itself, but not as to any other Party, as follows: (a) Each Party is the sole and lawful owner of all right, title, and interest in and to every Claim and other matter that each such Party releases herein, and that each such Party has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm, or entity any Claims or other matters herein released. (b) 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, (c) 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 malting the settlement provided for herein, except as expressly stated in this Agreement, (d) Each Party and its attorttcy(s), if any, has had a bill and fair opportunity to investigate and evaluate the transactions, documents, facts, circumstances, and disputes out of which tills 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. (e) The terms of this Agreement are contractual and not it mere recital. (fj 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 (iris Agreement is signed freely by such Party. (g) Each Party executing this Agreement in it representative capacity represents and warrants that it is empowered to do so, 11, Enforcement of Settlennent. The Parties agree that this Agreement is entered into pursuant to California Code of Civil Procedure Section 664.6, and that the Court in which the Action is now pending may retain jurisdiction over the parties to enforce this Agreement for a period of three (3) years, including entry and enforcement of the Judgment and any appropriate orders upon motion of any Party pursuant to the terms of the Agreement and California Code of Civil Procedure Section 664,6, 12, Attorney's Pees. Should any Patty 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. 13. No Admission, This Agreement is executed pursuant to a compromise and settlement entered into by each of the Patties 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 and the Exhibits attached hereto constitute 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 to the 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 it document are to be construed against the drafter. 16. Seotian 13eadiugs, 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 wands in the singular number shall be hold 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. 19, Severabilit . 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] -LIMIMM91 IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. PARTIES: Dated: 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 By:�/r �� Kris m idge, ity 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 Dated: B - Daisy Gomez, Clerk of the 4 PROPERTY OWNERS Dated: Jack McClure, Chief Financial Officer and Director of Flag Trucking Inc. Dated: Dolores L. McClure, Chief Executive Officer and Secretary of Flag Trucking Inc. [Signatures Continued on the, following page] IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. PARTIES: Dated: CITY OF SANT'A ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California By: Kristine Ridge, 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 Dated: By: _ — Daisy Gomez, Clerk of the Council PROPERTY OWNERS ,G Dated; 0:fi`�and Jac McCI re Chief ainanc�al 0 orrector Flag Trueking Inc. Dated: Ial _ olores L, McClure, Chief Executive Officer and Secretary of Flag Trucking Inc. [Signatures Continued on the following page] APPROVED AS TO FORM: Dated: Dated: 11/16/21 SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Jose Montoya Deputy City Attorney Attorney for Plaintiff CITY OF SANTA ANA Noam Damian Rutan & Tacker, LLP Attorney for Defendants, FLAG TRUCKING, INC., JACK MCCLURE, and DOLORES L. MCCLURE EXHIBIT "A" COMPLIANCE AGREEMENT This Compliance Agreement (hereinafter "Agreement") is made and entered into on this ___ day of November 2021 (`Effective Date") by and between CITY OF SANTA ANA, a charter City and municipal corporation, and THE PEOPLE OF THE STATE OF CALIFORNIA, by the City Attorney for the City of Santa Ana (hereinafter "City"), and 99 SOUTH MLK LLC, a Nevada limited liability company (hereinafter "Buyer"), City and Buyer are also collectively referred to as "the Parties" herein RECITALS WHEREAS, the City of Santa Ana has determined the property located at 938 E. 2""Street, Santa Ana, California, identified as Assessor's Parcel Number 398-473-10 (the "Property") to be a public nuisance and is being maintained in violation of the Santa Ana Municipal Code ("SAMC"), requiring immediate rehabilitation and/or repairs; and WHEREAS, on October 20, 2020, the City filed an action against the property owner, Flag Trucking, Inc., and its executive officers, Jack McClure and Dolores McClure (collectively ("Defendants") in the Superior Court of the State California, County of Orange, Central Justice Center District known as CITY OF SANTA ANA, et at, v, FLAG TRUCKING, INC., ct al., Case No. 30-2020-01166481-CU-MC-NJC (the "Action"), The City's complaint in the Action includes a prayer for injunctive relief, civil penalties, attorneys' fees and costs, and other equitable relief against Settling Defendants; and WHERE AS, Defendants intend to sell the Property to Buyer. Buyer understands and agrees that it will assume all liabilities and claims associated with the Action; and WHEREAS, Buyer acknowledges that the Property contains multiple Santa Ana Municipal Code ("SAMC") violations and understands and acknowledges that these violations constitute a nuisance and must be abated in order for the Property to be in compliance with the SAMC; and WHERE AS, the Parties seek to enter into this Agreement to ensure that Buyer will bring the Property into compliance with State laws and SAMC; and WHEREAS, concurrently with this Agreement, Defendants have entered into an agreement with City to settle the Action as set forth in Exhibit "A" and incorporated herein by this reference ("Settlement Agreement"); and WHEREAS, this Agreement is a condition precedent to settle all disputes with Defendants with respect to the Action; and WHEREAS, City acknowledges that there are no liens or other encumbrances against the Property which have been established, generated, or created by City or for the benefit of City, other than the Notice of Pendency of Action filed at the Orange County Clerk Recorder's Office against the Property on February 2, 2021, NOW, THERI,I+ORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows; SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into the body of this Agreement by this reference. SECTION 2. COMPLIANCE WITH IMPOSED SETTLEMENT CONDITIONS, This Agreement flilfills the execution of a Compliance Agreement requirement set forth in paragraph 2 of the Settlement Agreement. SECTION 3. TERMS AND CONDITIONS. The terms and conditions of this Agreement are provided herein and attached hereto as Exhibits "B" incorporated herein by this reference, SECTION 4. PROPERTY MAINTENANCE ENFORCEMENT BY TI-M CITY OF SANTA ANA. A. Onaoina Ooerational/Maintenance Ca, ditt ions, Buyer, on behalf of itself, its successors and assigns and any subsequent owner of the Property, hereby agrees to maintain and repair the following elements of the Property; The Property shall be maintained in conformance with the standards generally applicable to comparable commercial businesses located within the City, The Property shall comply with operational conditions of the Santa Ana Municipal Code (SAMC) applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing, etc.). 2. Ongoing maintenance, repair and upkeep of the Property and all improvements located thereupon shall be provided by the Buyer, including but not limited to controls on the proliferation of trash and debris about the Property; the proper and timely removal of graffiti; landscaping and related landscape improvements and the like, as applicable, 3. The Buyer shall ensure that the Property remains free from abandoned, wrecked, dismantled or inoperative vehicles or parts, visible oil stains on ground surfaces, senor vehicle storage trailers, and trailer tries. 4. The materials, products or equipment stored outdoors of the Property shall not be piled higher than the height of the current fence and must not be visible from anywhere in the public right-of=way. Public right-of-way means that area of the street, roadway, parkway, or sidewalk, that is owned, maintained, or controlled by the city. B. Notice of Maintenance Deficiencies. Upon any failure by Buyer to perform any of the maintenance and repair obligations referenced in Section 4.A. (such failure hereinafter referred to as a "Maintenance Deficiency"), the City shall issue written notice of such Maintenance Deficiency to Buyer, as provided in Section 16 of this Agreement. C. Maintenance Deficiencies, Buyer shall comply with any issuance of a Notice of Maintenance Deficiency within the timeframe specified by the Code Enforcement Division to cure the'Maintenauce Deficiency identified in such Notice, Within the timeframe specified by the Code Enforcement Division in the notice of a Maintenance Deficiency, .Buyer may submit a written request to the City seeking additional time to cure the Maintenance Deficiency, Each such written request for additional time shall describe and specify in detail (i) which tasks require additional time to complete the cure of the Maintenance Deficiency and the reason why such additional time is needed under the circumstances; (ii) what steps Buyer have already taken to commence the cure of the Maintenance Deficiency. The City, in its reasonable discretion, may grant, conditionally grant or deny any written request for additional time as determined by the Code Enforcement Manager, The City shall be under no obligation to consider untimely submitted time extension requests or requests which fail to provide any of the information required above, D, Removal of Graffiti, Buyer, on behalf of itself, its successor and assigns hereby further covenants and agrees in favor of the City to keep the exterior surfaces of all structures, fixtures or other improvements located on the Property free and clear of graffiti, Graffiti shall be removed within twenty-four (24) hours following the time of its application. A failure by Buyer to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property shall be deemed to be a Maintenance Deficiency for which no further notice under Section 43, needs to be given by the City, E. City May Cure Maintenance Deficiency. In the event Buyer fails to onto x Maintenance Deficiency within the time allowed, the City may initiate it hearing pursuant to Chapter 3 of the Santa Ana Municipal Code. At such a hearing the hearing officer shall consider such evidence and testimony of interested persons as may be relevant to the matter. If upon the conclusion of a hearing, the hearing officer makes a written finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the maintenance and repair obligations referenced in Section 4.A. of this Agreement, the City shall have the right to record the notice described in Section 4.G. of this Agreement and thereafter the City may enter upon or otherwise access the Property for the purpose of curing the Maintenance Deficiency with at least twenty-four (24) hours notice to Buyer, 2. The foregoing notwithstanding, the City, without notice to Buyer, shall have the right to enter the Property and remove graffiti, solid waste, trash, or other debris under the following two circumstances: (i) a failure by Buyer to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property that is visible from an adjacent or contiguous public right-of-way; or (if) a failure by Buyer to remove the accumulation of solid waste, wash, or other debris that is visible for a duration of twenty-four (24) hours from all adjacent or contiguous public right-of-way or from a designated fire lane on the Property. Any sum expended by the City for the removal of graffiti, solid waste, trash, or other debris pursuant to this Section 4.132. of the Agreement shall become a lion on the Property in accordance with Section 4.17, and the City shall have the right to enforce such lien in the manner provided in Section 4.G, F. City's Lien Authority. Any sums expended by the City in enforcing, maintaining, repairing or replacing, curing any element of the Property as authorized in Section 4 for which a Maintenance Deficiency has been declared by the City to exist under Section 4R, shall become a lien on the Property. The powers conferred upon City pursuant to this Section 4.F. are in addition to all other remedies which the City may have to enforce this Agreement, or any building or development project permit under other law including public nuisance abatement proceedings or any other action at law or equity. G. Enforcement of Liens by the Citv. The rights conferred upon the City by Buyer 'under Section 4 of this Agreement expressly include the power to establish and enforce a lien or other encumbrances against the Property or any portion thereof, subject to all then existing other liens and encumbrances on the Property, in an amount reasonably necessary to reimburse the City for its reasonable costs of the necessary and reasonable costs incurred by the City under Section 4.C, to restore the Property to the maintenance standard required under this Section 4, including reasonable attorney's fees and costs of the prevailing party associated with the correction of the Maintenance Deficiency in connection with such action, If the amount of any such lien as relates to a Maintenance Deficiency is not paid within thirty (30) calendar days after written notice by the City to Buyer, demanding such payment, the City shall have the right to enforce its lien in accordance with the statutory authority referenced under this Soction 4.0.1. The prevailing party in a collection or other lien enforcement action authorized by this Section 4.G. shall also have the right to collect its reasonable attorney's fees, costs and expenses associated with any action or proceeding to enforce or defend its rights hereunder. 2. In the event that the City makes a written finding that it Maintenance Deficiency exists on the Property as provided in Section 4.13., then in addition its lien powers under Section 4.0, L, the City may record a notice of correction of Maintenance Deficiency be recorded against the Property. Stich a notice of Maintenance Deficiency shall refer to Section 4.8, of the Agreement, be signed by the Executive Director of the Planning and Building Agency and shall have it duration following the date of its recordation until such date the Maintenance Deficiency is corrected. H. No approval by Buyer shall be necessary for the City to establish and foreclose a lien for non-payment of amounts expended by the City to cure a Maintenance Deficiency under Section 4 of this Agreement, No failure by the City to enforce any default pertaining to the maintenance, repair or replacement of any element of the Property under Section 4 shall be deemed to be a waiver of the right or power of the City to enforce any subsequent default thereof by Buyer. 1. riorit of City Ordinances and Other Laws. Notwithstanding any provision in this Agreement to the contrary, the approval and acceptance of this Agreement by tine City shall not be deemed a waiver or release of any applicable provision of any building permit or development project permit issued by the City for the improvement of the Property, or of any other applicable ordinance or law or the general police power of the City. In the event of any conflict or inconsistency between any provision hereof and any ordinance, law, or the general police power of the City, the latter shall prevail. SECTION 5. WITHDRAW OF LIS PENDENS. Upon the payment of monies outlined in Paragraph 3 of the Settlement Agreement set forth as Exhibit A hereto, and upon execution of this Agreement by the Parties, City shall withdraw the recorded Notice of Pendency of Action filed at the Orange County Cleric -Recorder's Office against the Property on February 2, 2021. SECTION 6. LIQUIDATED DAMAGES. In the event the City is required to bring legal action based on nuisance conditions on the Property and/or breach the terms of this Agreement within three (3) years of its execution, the Parties stipulate the imposition of a Twenty -Five Thousand ($25,000) `liquidated damages" provision awarded to City, in addition to actual fees and costs authorized by statute. Such damages shall only be awarded following a judgment with an express finding of fact that Defendants, or any of them, or their assignees, are liable and responsible for such nuisance conditions. - SECTION 7. TERMINATION of AGREEMENT. This Agreement shall commence on the Effective Date for a five (5) year term. This Agreement shall terminate and be of no further force or effect upon the mutual written termination of this Agreement by Buyer and City. City agrees that if Buyer (or Buyer's successors or assigns) performs all of its obligations under this Agreement with no violations that remain uncured following written notice and expiration of any applicable cure period, this Agreement shall terminate. SECTION 8. LEGAL ADVICE. Each Party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement; they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or having knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and they have freely signed this Agreement without any reliance upon any agreement, promise, statement, or representation by or on behalf of the other Party, or in their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. SECTION 9. REPRESENTATION AND WARRANTIES OF BUYER. Buyer represents and warrants for the benefit and reliance for the City as follows: A. Buyer validly exists under the laws of the State of California and is authorized to conduct business in California and is authorized to carry on its business being conducted as contemplated in this Agreement; B. Buyer has the power and authority to enter into this Agreement; C. This Agreement shall be a legal, valid and binding obligation of Buyer, enforceable against Buyer and its successors and assigns in interest in the Property, and each portion thereof, in accordance with its terms, subject to bankruptcy and other equitable principles. SECTION 10. ASSIGNMENT. This Agreement shall further provide that any Party responsible for complying with its terms shall not assign its ownership interest in the Property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under this Agreement. SECTION 11. TIME OF THE ESSENCE Time is expressly made of the essence with respect to the performance by City and Buyer of each and every obligation and condition of this Agreement, SECTION 12, A`1'TORNEY'S FEES. In addition to any other remedies provided herein or available under applicable laws, if either Party to this Agreement commences an action against the other Party arising out of, or in connection with this Agreement, the prevailing Party shall be entitled to recover from the non -prevailing Party its costs of suit, including, but not limited to, its reasonable attorney's fees, expert witness fees, and costs of investigation, SECTION 13, INTEGRATION. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement, except as otherwise provided. All prior contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Party is entering into this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deenns material. This Agreement constituted the entire understanding and agreement of the Parties, notwithstanding any previous negotiations or agreements between the Patties or their predecessors in interest with respect to all or any part of the subject matter hereof, SECTION 14, SEVERABILITY, If tiny portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. SECTION 15, AMENDMENT. No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to City approval, The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid. SECTION 16. NOTICES. All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose: BUYER: 99 South MLIC LLC Samir Shoshani, Managing Member 4027 E. Rolling Green Ln, Orange, CA 92867 CITY: City of Santa Ana. City Attorney's Office, M-29 PO Box 1988 Santa Ana, CA 92702 Attn: Jose Montoya SECTION 17, COUNTERPARTS. 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, IN WITNESS WHEREOC', this Agreement is executed on the dates set forth below. CITY: Dated: CITY OF SANfA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California By: Kristine Ridge, 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 Dated: By: _ Daisy Gomez, Clerk of the Council [Signatures continued on following Page] BUYER: 99 SOUTH MLK LLC, a Nevada limited liability company Dated: Samir Shoshani, Managing Member APPROVED AS TO FORM: Dated: SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Jose Montoya Deputy City Attorney Attorney for Plaintiff CITY OF SANTA ANA Dated: Michael S. DeBenon Attorney for 99 South MLK LLC., EXHIBIT A [Bitentionally Omitted]