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Home My WebLink AboutMCFADDEN SHOPPING CENTERDocuSign Envelope ID: 1FF13304-6EDF4069-A4D4-44F9732C6FE8 N-2023-232 INSURANCE NOT REQUIRED WORK MAY PROCEED CITY CLERK DATE: SETTLEMENT AND MUTUAL RELEASE AGREEMENT 0• Mo -0- �J 1`40 14YA This Settlement and Mutual Release Agreement (hereinafter "Agreement") is made and entered N into by and between City of Santa Ana ("City"), on the one side, and Property Owner, McFadden cw Shopping Center, a California limited partnership (herein referenced as "Property Owner"), on the a"} other side. City and Property Owner are sometimes individually referred to herein as a "Party" and collectively referred to herein as the "Parties." a w N This Agreement is made with reference to the following facts: RECITALS A. WHEREAS, the City of 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; B. WHEREAS, Property Owner is the current owner of property located at 1210 E. McFadden Avenue Unit B Santa Ana, CA 92705 (the "Property"); C. WHEREAS, on December 23, 2020, the Santa Ana Police Department executed a search at the Property to thwart an alleged illegal gaming establishment. The City also discovered that the Property had allegedly been modified without building permits, inspections, or approvals and red tagged the Property. Based on alleged illegal gambling in a MI Zone and lack of business license and required certificate of occupancy, the City declared the property to be a public nuisance and issued a Notice and Order against the property, pursuant to the SAMC and other adopted codes; D. WHEREAS, in or around October 2021, the City imposed a special nuisance abatement assessment in the amount of $10,931.09 relating to the foregoing ("Assessment"), and the Orange County Tax Collector sent Property Owner a 2021-22 Property Tax Bill including that Assessment; E. WHEREAS, on or about October 18, 2021, Property Owner paid the Property Tax Bill, including the Assessment; F. WHEREAS, the City thereafter received from the County payment in the amount of the Assessment; G. WHEREAS, Property Owner thereafter objected to the Assessment and submits he is entitled to a refund of the same pursuant to Revenue & Taxation Code section 5140 and other applicable law; and G. 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 settlement agreement to resolve all disputes, Claims (as Page 1 of 6 DocuSign Envelope ID: 1FF13304-6EDF-4069-A4D4-44F9732C6FE8 defined in paragraph 4 below), and differences between them related to the costs incurred by the City in lawfully abating the alleged illegal gaming establishment at the Property. NOW THEREFORE, IN CONSIDERATION of the above recitals, the covenants, conditions, and agreements made herein by the Parties, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: TERMS OF SETTLEMENT AGREEMENT 1. The terms and conditions of the Settlement are provided herein. 2. Partial Refund of Assessment. In consideration for the final settlement of this matter, and in accordance with the terms of this Agreement, the City stipulates and agrees to pay Property Owner a total of Four Thousand Four Hundred and Thirty One Dollars and Nine Cents ($4,431.09) ("Settlement Payment") in partial reimbursement of the Assessment. The Settlement Payment shall be made payable to Property Owner within thirty (30) days of the execution of this Settlement Agreement. The Settlement Payment shall be made to "McFadden Shopping Center" and addressed as follows: Jason Moberly Caruso, Newmeyer Dillion LLP, 895 Dove Street, Second Floor, Newport Beach, CA 92660. 3. California Civil Code Section 1542 Waiver. With respect to the released Claims set forth herein, the Property Owner acknowledges that he has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR ITS 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." THE PROPERTY OWNER AND CITY, 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. Page 2 of 6 DocuSign Envelope ID: 1FF13304-6EDF-4069-A4D4-44F9732C6FE8 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 a mere recital. (I) 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. (g) Each Party executing this Agreement in a representative capacity represents and warrants that it is empowered to do so. 7. 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. 8. 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, except for the payment provisions in paragraph 2, 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. 9. 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 a document are to be construed against the drafter. 10. 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. Page 4 of 6 N-2023-232 DocuSign Envelope ID: 1FF13304-6EDF-4069-A4D4-44F9732C6FE6 11. 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. 12. 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. 13. Amendments. This Agreement may be amended only by written agreement signed by all of the Parties hereto, or their respective successors or assigns. 14. Exhibits. All exhibits attached hereto are hereby incorporated into this Agreement as though fully set forth herein. IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. PARTIES: Dated: !'ki.3 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: /% 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. Jenncity r .Hall ( I CityC��',:%' [Signatures continued on the following page] Page 5 of 6 DocuSign Envelope ID: 1FF13304-6EDF-4069-A4D4-44F9732C6FE8 PROPERTY OWNER MCFADDEN SHOPPING CENTER, a California limited partnership E366- ocuSigned by: Dated:9/5/2023 ft,�u0W �-i Fee. --.I -... John Pedicim General Partner APPROVED AS TO FORM: SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Dated: 9/4/2023 V JOSE MONTOYA Assistant City Attorney Attorney for CITY OF SANTA ANA Dated: September 5, 2023 Lam" SON MOBERLY CARUSO ewmeyer Dillion LLP Attorney for MCFADDEN SHOPPING CENTER Page 6 of 6