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HomeMy WebLinkAboutContracts & Agreements_131-2011_CCv0001.pdf SETTLEMENT AND GENERAL RELEASE AGREEMENT This Settlement and General Release Agreement ("Agreement") is entered into by and between the City of Redlands for itself and as representative of the People of the State of California (collectively referred to as "Redlands") and Aladdin Entertainment Group LLC ("Aladdin"). Redlands and Aladdin shall together be referred to herein as the "Parties." RECITALS This Agreement is made with reference to the following facts: A. In 1994, Redlands approved a conditional use permit authorizing the construction and operation of a family themed amusement park at 1101 N. California Street, Redlands, California (the "Property"), which became known as "Pharaoh's Lost Kingdom" (the "Park"). Aladdin is the ground lessee of the Property. B. On April 27, 2009, Redlands filed a Complaint, San Bernardino Superior Court, Case No. CIVDS 906028, against Aladdin, amongst others, seeking to abate alleged violations of the Conditional Use Permit for the Property, as well as the Drug Abatement Act, Health & Safety Code section 11570 et seq. and nuisance (the "Action"). Aladdin filed an answer to the Action on June 5, 2009,denying the allegations of the Action. C. Redlands and Aladdin now desire to fully and finally settle and resolve any and all rights, claims, disputes and causes of action which currently exist, or may exist in the future, relating to the Property, the Park, and the Action. SETTLEMENT AGREEMENT The Parties, and each of them, agree as follows: I. Recitals. The Recitals are incorporated into and are a part of this Agreement. 2. Settlement. In consideration of this Agreement and the promises set forth herein, Aladdin shall pay to Redlands the total sum of twenty three thousand five hundred dollars and 00/100 ($23,500.00) ("Settlement Amount"). Aladdin shall pay the Settlement Amount within five days (5) days of Redlands' execution of this Agreement. 3. Dismissal. Within ten (10) days of Redlands' receipt of the Settlement Amount, Redlands will dismiss the Action in its entirety as to Aladdin, with prejudice. Redlands will forward a conformed copy of the request for dismissal to Aladdin upon it being made available by the Court. 17942.00080\6863375.2 1 4. Each Party to Bear Own Costs and Pees. The Parties shall each bear their own attorneys' fees and other costs (including without limitation costs of expert witnesses or other consultants) incurred in relation to the Action, and the negotiation and drafting of this Agreement. 5. Mutual Release. Each of the undersigned Parties to this Agreement, for itself, its predecessors, heirs, successors-in-interest, assigns, affiliates, member companies and all past and present officers, agents, employees, directors, City Council members and attorneys and all others who may claim by or through it or who may take any interest in the matters herein released, fully and forever release, acquit and discharge each other, together with any and all past and present employees, agents, whether ostensible or actual, officials, officers, directors, City Council members, shareholders, attorneys, assigns and servants from any and all claims, demands, rights, causes of action, damages, losses, attorneys' fees and expenses, and costs of every kind and nature whatsoever, known or unknown, fixed or contingent, which any of the Parties to this Agreement may now have or may hereinafter have, which arise from and/or relate to the prosecution and defense of the Action, including any claim asserted by any of the Parties therein related to the Property or the Park. 6. Waiver of Civil Code Section 1542. Except as specifically noted in this Agreement, it is the intention of the Parties that the release entered into as part of this Agreement shall be effective as a bar to any and all past, present or future actions, causes of action, liens, rights, bid preparation costs, obligations, costs, interest, expenses, attorney's fees, damages, losses, claims, liabilities, demands and compensation of any character, nature and kind, known or unknown, disclosed or undisclosed, whether or not anticipated, or in any way related to the Action, to be so barred; in furtherance of which intention the Parties expressly waive any and all right and benefit conferred upon the Parties by the provisions of Section 1542 of the California Civil Code, 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. The Parties hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code was bargained for separately. The Parties hereto expressly agree that the release provisions herein contained shall be given full force and effect in accordance with each and all of their express terms and provisions, including but not limited to those terms and provisions relating to unknown or unsuspected claims, demands and causes of action hereinabove specified. The Parties specifically agree to assume the risk of the subsequent discovery or understanding of any matter, fact or law which if now known or understood would in any respect have affected this Agreement. 7. Denial of Liability. The Parties agree and mutually acknowledge that this Agreement is for settlement purposes only. The Parties have denied, and continue to deny, any liability in connection with the Action. Neither this Agreement nor any action taken pursuant to this Agreement shall constitute any admission of any wrongdoing, fault, violation of law, or liability of any kind on the part of the Parties. 17942.00080\6863375.2 2 8. No Assignment of Claim. The Parties hereby represent, warrant and agree that they will not and have not committed or permitted or agreed to any sale, encumbrance, hypothecation or transfer, whether by operation of law or otherwise, of any type, of the claims, rights or causes of action to be released or discharged or which otherwise would have been affected pursuant to the provisions of this Agreement. 9. Integrated Agreement. This Agreement is the final and entire agreement between the Parties concerning the subject matter of this Agreement. All agreements of the Parties with respect to the subject matter hereof are in writing and supersede all prior written and oral agreements and understandings of the Parties. This Agreement cannot be modified except by a written document signed by all of the Parties. None of the Parties are relying upon any other negotiations, discussions or agreements in connection with the subject matter of this Agreement. This is a fully integrated agreement. 10. Representation and Warranty. Each party hereby represents and warrants that it is the sole and rightful owner of all rights, title, and interest in every claim and other matter which it releases herein and has not heretofore assigned or otherwise transferred any interest in any claim which it may have against any other party or any party's respective parents, affiliates, subsidiaries, predecessors, and each other person or entity released and discharged pursuant to this Agreement. 11. Independent Representation by Counsel. The Parties represent and declare that in executing this Agreement they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently-selected counsel, concerning the nature, extent and duration of their rights and claims hereunder, and that, except as provided herein, they have not been influenced to any extent whatsoever in executing this Agreement, by any representations, statements or omission pertaining to any of the matters herein contained by any party or by any persons representing any party. 12. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California applicable to instruments, persons and transactions having legal contacts and relations solely within the State of California. 13, Construction, This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. 14. Execution in Counterparts. This Agreement may be executed in counterparts by the Parties and shall become effective and binding upon the Parties at such time as all of the signatories hereto have signed the original or a counterpart original of this Agreement. All counterparts so executed shall constitute one Agreement, binding upon all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the original or the same counterpart. 15. Attorneys' Fees. Should any Party hereto retain counsel for the purpose of enforcing or preventing the breach of any provision of this Agreement as set forth in the Agreement, including but not limited to, instituting or defending any action or proceeding to enforce any provision of this Agreement, including for damages by reason of any alleged breach 17942.00080\6863375.2 3 or for a declaration of such Party's rights or obligations hereunder or for any other judicial remedy, then the prevailing Party shall be entitled to be reimbursed by the losing Party for all costs and expenses incurred thereby, including, but not limited to, actual attorneys', paralegals', experts' and accountants" fees. 16. Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, unconstitutional or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full force and effect as if no invalid or unenforceable provisions had been part of this Agreement. 17. Survivability of Covenants. All representations and agreements set forth in this Agreement shall be deemed continuing and shall survive the execution date of this Agreement. 18. Covenant to Take Further Actions Necessary. The Parties hereby agree to execute such other documents and to take such other actions as may be reasonably necessary to further the purposes of this Agreement, with the Parties to bear their own costs and attorneys' fees for these additional actions. 19. No Third - Party Beneficiaries. Except for the rights of beneficiaries pursuant to the releases provided, there are no third-party beneficiaries to this Agreement and nothing herein shall confer any enforceable rights on non-signatory persons or entities. 20. Successors and Assigns. Each of the terms of this Agreement is binding upon each of the Parties and their respective predecessors, assigns, executors, administrators, representatives, principals, insurers, agents, and successors-in-interest. 21. Effective Date. This Agreement shall be effective as of the date of its complete execution by the last signing Party. DATED: Auguste, 2011 ALADDIN ENTERTAINMENT GROUP LLC By. ame: James W. Braswell / Title: Manager 17442.00080!6863375.2 4 DATED: August , 2011 THE CITY OF REDLANDS By: Name: Title: APPROVED AS TO FORM AND CONTENT: DATED: August 31 , 2011 CITY OF REDLANDS CITY ATTORNEY By: N�)� DA IEL J CHUGH Attorney for Plaintiff THE CITY OF REDLANDS DATED: August 31 , 2011 VARNER & BRANDT LLP By: jf-�� BRUCE VA NER Attorneys for Defendant ALADDIN ENTERTAINMENT GROUP, LLC 17942.00080',.6863375.2 5 Settlement Disclosure - City Attorney McHugh informed the City Council of the public disclosure, in accordance with the Redlands Municipal Code, of details of a settlement agreement between the City of Redlands and Aladdin Entertainment, LP. The agreement is the result of Case No_ CIVDS 946028, a Complaint filed by the City of Redlands in San Bernardino Superior Court against Aladdin, amongst others, seeking to abate alleged violations of a Conditional Use Permit for Pharoah's Lost Kingdom theme park, as well as the Drug Abatement Act. Under terms of the settlement, Aladdin will pay to the City of Redlands the total sum of $23,540 and Redlands will dismiss the Complaint with prejudice. The parties shall each bear their own attorneys' fees and other costs incurred in relation to the Case. Councilmember Bean recused himself from discussion on this item due to his source of income relationship with the Aladdin. As a public comment, Steve Rogers expressed confusion at the settlement. Committee Appointments - On motion of Councilmember Gardner, seconded by Mayor Aguilar, the City Council unanimously approved the appointment of Weldon Foster Clegg and Linda Richards to fill unexpired terms, and the reappointment of Jim Rock and Paul Woltze to serve additional terms. All four terms will end February 16, 2415. COUNCILMEMBER ACTIVITIES. Coffee with the Council - Mayor Aguilar mentioned his and Councilmember Bean's very successful meeting with Redlands residents in August. The next coffee meeting is scheduled at Stell Coffee & Tea Company on September 17, 2011. Atta Boys - Councilmember Gardner noted a significant number of complimentary e-mails received lately from residents appreciative of good service provided by City of Redlands staff. He congratulated everyone and encouraged them to keep up the good work. SCAG - Councilmember Harrison discussed three documents the Southern. California Association of Governments (SCAG) is currently addressing: the Regional Transportation Plan, the Sustainable Communities Strategy and the Housing Allocation. There will be public hearings to address all three. These documents will affect the City of Redlands and residents are encouraged to review them at www,scaa_ca.gov, go to the public hearings and provide comment on them. SANBAG - Mayor Aguilar highlighted a concept of toll "hot lanes" being proposed at San Bernardino Associated Governments (SANBAG) meetings for Interstate 10 in the Redlands area. He said, as the City's representative to SANBAG, he would be soliciting inputs from his fellow Councilmembers as to a position for or against such proposals. September 6,2011 Page 10 • +t 's _ r Office of the Daniel J. McHugh City Attorney City Attorney Michael[leiter City of Redlands Assistant City Attomcy MEMORANDUM. 'TO: CITY CLERK FROM: SHERI A. SEBASTIAN LEGAL SECRETARY DATE: SEPTEMBER 7, 2011 r RE: SETTLEMENT AGREEMENT--ALADDIN ENTERTAINMENT, LLC. fit. CITY OF REDLANDS V. THE CALIFORNIA GATEWAY, ET AL. Sam: Attached please find an original executed Settlement Agreement with Aladdin Entertainment LLC regarding the above-referenced case for your tiles. Should you have any questions regarding this matter, please feel free to contact rne. SHERI A. SEBASTIAN Attachment P.O. Box 3005 • Redlands, CA 92373 • (909) 798-7595 - FAX (909) 798-7503 I:c,a'nanr'CivilThauaoh"s(Case No.CIVUS y(Ib(7?&11Cnm la'.mrrnu.city'clerk Sctalraz ent Agni Aladdin doc