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Home My WebLink About7 DAY TIRES CENTER BUSINESS OWNER - 2014�j V cl SETTLEMENT AMMNT AGV1i MUTUAL RELEASE As of this day of May, 2014, 7 pays Tire Center (hereinafter "7 DAYS TIRE "), and the City of Santa Alna, a art city and municipal cgzpgration duly organized under the Constitution and laws of the State of California (the "CITY ") hereby agree to enter into this Settlement and Mutual Release (hereinafter "Agreement ") on the terms and conditions set forth below, As used in this Agreement, the CITY and 7 DAYS TIRE are sometimes collectively referred to as the "Parties," or individually as the "Party." UCITALS A. 7 DAYS TIRE leased properties located at 1221 East P Street, Santa Ana, California (the "Property ") and 1222 East 4 e Street, Santa Ana, California, on which it operated a tire shop and auto repair business, B. On or about March 29, 2013, the CITY filed an eminent domain action entitled: CITY OF SANTA ANA v, MARIE G FIINOJOSA, et al. Orange County Superior Court Case No. 30- 2013. 00640495, to acquire the Property, including 7 DAYS TIRE's interest in the Property (the "Condemnation Action" ). C, On or about October 2, 2013, the CITY deposited a total amount of $17,620.00 ( "Deposit ") as compensation for the improvements pertaining to the realty with the State Condemnation Fund. On or about October 31, 2013, 7 DAYS TIRE submitted a verified application with the court to withdraw these funds. 7 DAYS TIRE withdrew the Deposit on or about December 23, 2013. D. 7 DAYS TIRE waives the CITY's Notice of Entry of Judgment and Final Order of Condemnation in the Condemnation Action. VVMREAS, the Parties now desire to amicably resolve all of their disputes concerning, inter alia, just compensation from the CITY relating to the loss of business goodwill sustained by 7 DAYS TIRE, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: ACRELMENT 1. Payment: The Parties agree to settle the Condemnation Action for a grand total of $312,620.00, plus ordinary court costs. The sum of $321,620.00, plus ordinary court costs shall consist of the following: '(a) $295,000 for a total loss of busimoss goodwill; (b) $17,620 for the, value of improvements; and (c) $460 for ordinary costs. 7 DAYS TIRE withdrew the Deposit amount of $17,620. The CITY, as soon as is practicable after full execution of this Agreement, -bt naelatar thtian`twePt 20 da s thereatter shalt a 7 DAYS °fiI12E $295.460:00 via electronic transfor or written warrant ( "Settlement Payment', made payable to Murphy & Evortz LLP Client Trust Account, John C. Murphy, Esq., 650 Town Center Drive, Suite 550, Costa Mesa, California 92626. J00062774.2 )Page I of 4 A -2014 -091 2. Dismissal of Lawsuits: As soon as is practicable after having made the Settlement Payment, but not later than five (5) days thereafter, the CITY shall file a Dismissal of the Condemnation Action of 7 DAYS TIRE with prejudice (the "Dismissal "). 3. [Intentionally Left Blank] 4. Release of the CITY by 7 DAYS TIRE: Upon the satisfaction of the terms . described in paragraphs 1 and 2 above, 7 DAYS TIRE, on behalf of itself and all of its respective parent companies, subsidiaries, divisions, affiliates, merged companies, general and limited partners, sureties, insurers and reinsurers, successors, predecessors, assigns, directors, officers, shareholders, principals, servants, agents, attorneys, contractors, and employees, past and/or present, shall be deemed to have released the CITY and its board members, council members, directors, officers, employees, agents, servants, heirs, administrators, governing bodies, insurers, attorneys, successors and assigns, from any and all actions, causes of action, claims, demands, damages, costs, liens, expenses, liabilities, attorneys' fees and debts whatsoever, in law or in equity, arising out of or related to the Grand Avenue Widening Project, the taking of the Property, and the Condemnation Action. It is understood if all of the terms of this Agreement are not fully complied with the foregoing release shall have no force or effect and parties shall, retain their respective legal rights as If this Agreement was never entered into, 5. Release of 7 DAYS TIRE by the CITY: Upon the satisfaction of the terms described in paragraphs 1 and 2 above, the CITY, on behalf of itself, and its board members, council members, directors, officers, employees, agents, servants, heirs, administrators, governing bodies, insurers, attorneys, successors and assigns, shall be deemed to have roleased 7 DAYS TIRE and all of its respective patent companies, subsidiaries, divisions, affiliates, merged companies, general and limited partners, sureties, insurers and reinsurers, successors, predecessors, assigns, directors, officers, shareholders, principals, servants, agents, attorneys, contractors, and employees, past and/or present, from any and all actions, causes of action, claims, demands, damages, costs, liens, expenses, liabilities, attorneys' fees and debts whatsoever, in law or in equity, arising out of or related to the Grand Avenue Widening Project, the taking of the Property, and the Condemnation Action. It is understood if all of the terns of this Agreement are not fully complied with the foregoing release shall have no force or effect and parties shall retain their respective legal rights as if'this Agreement was never entered into. 6. It is understood and agreed that the Parties' general release as intended by this Agreement and described in part in paragraphs 4 and 5 above, extends to all claims, including, but not limited to, bonus value of the lease, and loss of business goodwill, whether known or unknown, suspected or unsuspected, contingent or liquidated, asserted or unasserted, which may have existed at the time of executing this Agreement. The Parties acknowledge and agree that by reason of this release, they are expressly waiving any and all rights under California Civil Code EXTENT? TO CLAIMS Wan pxpy. a ..as ,follows A QENERAL ,RE,LEA$g_ , DpES NOT t n 1542 wiuoh —Section THE CREDITOR DOB§ IVOT KNOW OR SUSPECT Tn 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, 0062774.2 )page 2 of 4 7. Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement, and that it is the only Party or entity entitled to receive the consideration specified in this Agreement, 8, Each Party shall be responsible for the payment of its own attorneys' fees and, except as specifically set forth above, all other expenses arising out of the subject matter of this Agreement and the Condemnation Action. Should any action be brought by either Patty on any claim released or discharged hereby, or to enforce the terms of this Agreement, each Party shall bear its own attorney's fees. 9. This Agreement and its terms shall inure to the benefit of the Parties and their respective successors, assigns, heirs, executors and administrators. 10, No breach of the provisions of this Agreement can be waived except expressly and in writing, An express waiver of any one breach of this Agreement shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 11. If any clause or provision of this Agreement is declared illegal, invalid or unenforceable under present or future laws effective during the term hereof, the remainder of the Agreement shall not be affected thereby and shall remain in force and effect. 12. Time is of the essence of this Agreement and with respect to each Party's performance of the obligations set forth in paragraphs 1 and 2 above, 13. The Parties represent that this Agreement is a ftdly integrated agreement. This Agreement may be modified only by a writing executed by both parties to this Agreement, This Agreement sets forth the entire understanding between the Parties with respect to the matters stated in this Agreement and supersedes any and all prior agreements or understanding. between the Parties, whether oral or written. 14. The Parties represent and declare that, in executing this Agreement, they relied solely upon their own judgmont, belief and knowledge, and that they have obtained the advice and recommendations of their own independently selected counsel concerning the nature, extent or duration of their rights and claims; and that they have not been influenced to any extent whatsoever in executing this Agreement by any representations or statements not expressly contained or referred to in this Agreement, The Parties affirm that this Agreement was jointly drafted by both the CITY and 7 DAYS TIRE, and as such that any ambiguities contained herein shall not be presumptively construed against either as the drafting party, 15. It is the intention of the Parties that laws of the State of California shall govern the validity of this Agreement and construction of the terms and the interpretation of the rights and duties of the artics °hereto: 16. This Agreement may be executed in counterparts, each of which shall be deemed an original and shall be deemed duly executed upon the signing of this Agreement. (aoo6a774.2 )Page 3 of 4 Dated: May 4, 2014 Dated: Mays, 2014 Approved as to Form: MURPHY & EVERTZ, L.LP 1E IFER W. IE HART, Esq. A ney for 7 S TIRE r Dated: May_,, 2014 CITY OF SANTA ANA, a okiarter law city and municipal corporation, duly organiz and existing under the Coongtitu laws of the a of California BY: 1 1, DAVID CAVAZOS City Manager Dated: May_tj 2014 Dated: May g 2014 ATTEST« By: MARIA D. HUIZAR City Clerk Ap roved An Form SESANDOVAL Chief Assistant City Attorney CITY OF SANTA ANA (e0062774.2 tPage 4 of 4 E XHIBIT "1" MURPHY& EVERTZ A t t o r n e y s a t L a w 650 Town Center Drive, Suite 550 Costa Mesa, CA 92626 714.277.1700 714.277,1777 fax www.murphyeveriz. com March 31, 2014 )E IFER RIEL NICCLURE, PAIITNER DIRECT Di. NUMBER 714.277.1704 EMAIL ADDRESS iMcClure@murphyevertz.com OUR FILE NO. 40073 -00001 VIA E -MAIL AND U.S. MAIL Jose Sandoval, Chief Assistant City Attorney City of Santa Ana, Office of the City Attorney 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, CA 92702 Re: City of Santa Ana v, Hinojosa, et al. Orange County Superior Court Case No. 30- 2013 - 00640495 Dear Jose: This confirms our discussion this afternoon and the settlement reached for the Hernandez Family interests in the above referenced matter. The Hernandez Family and the City have agreed to settlement based on the City's appraised amount of $1,115,000. In addition, we also agreed that the Hernandez Family will be responsible for delivering the Property free of all remaining liens and encumbrances remaining in the action. Finally, as discussed, the settlement is subj ect to City Council approval and you will be putting the settlement on the agenda for approval at the April 15, 2014 City Council meeting. Please let us know if you need any additional information prior to City Council meeting. Very truly yours, 4 Je rifer Riel McClure of MURPHY & EVERTZ LLP JRDNjv {00060205.I EXHIBIT 662" MURPHY& EVERTZ A t I o r. n e y s a t l a w 650 Town Center Drive, Suite 550 Costa Mesa, CA 92626 714.277.1700 714.277.1777 fax www.murphyeyertz.com April 7, 2014 VIA E -MAIL AND U.S. MAIL Jose Sandoval, Chief Assistant City Attorney City of Santa Ana, Office of the City Attorney 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 jsandoval @ santa - ana.org Re: 7 Days Tire Center adv. City of Santa Ana (OCS'C Case No. 30 -2013- 00640495) JENNIFER w. DuFarLART, PARTNER. DIRECT DIAL NuNMER 714.277.1703 EMAIL .ADDRESS idienhar(gmurphyevem,com OCR FILE NO 40074.00001 Dear Mr. Sandoval: Following our meeting on March 26. 2014, 7 Days Tire considered the offer of the City of Santa Ana for 7 Days' lost business goodwill. After speaking with our clients, we must decline the City's offer. Although we cannot accept the City's offer, 7 Days would like to propose a counter - offer. 7 Days will agree to settle its claims in the above - referenced matter for a total of $312,620, plus ordinary court costs. The amount of $312,620 represents $295,000 for 7 Days' lost business goodwill claim and $17,620 for improvements pertaining to realty. As you know, the City deposited the amount of $17,620 for 7 Days' improvements pertaining to realty, and that amount has been withdrawn by 7 Days. We look forward to hearing from you. Very truly yours, feiinifer W. A �I art of . MURPHY & EVERTZ LIT JWD /,jv {00060567.1