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HomeMy WebLinkAboutContracts & Agreements_146-2011_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"), on the one hand, and Pharaoh's Water & Theme Park, Inc. ("Pharaoh's"), Shahvand Aryana ("Aryana") and Aryana Management Group ("Aryana Management"), on the other hand. Redlands, Pharaoh's, Aryana, and Aryana Management shall collectively 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"). B. On April 27, 2009, Redlands filed a complaint in the San Bernardino Superior Court, Case No. CIVDS 906028 (the "Complaint"), against Aryana, Aryana Management, and Pharaoh's, 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"). Aryana,Aryana Management, and Pharaoh's filed an answer to the Complaint on May 22,2009,denying the allegations therein. Thereafter, May 22,2009,Aryana, Aryana Management, and Pharaoh's filed a cross-complaint against Redlands (the "Cross- Complaint"). Redlands filed an answer to the Cross-Complaint on November 12, 2010. The Complaint, Cross-Complaint and all related judicial proceedings shall be collectively referred to herein as the"Action." C. On September 21, 2009, the Court granted a preliminary injunction in the Action which restrained Pharaohs, Aryana and Aryana Management, among others, from using the Park for certain purposes. D. Redlands, Aryana, Aryana Management, and Pharaoh's 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: 1. Recitals. The Recitals are incorporated into and are a part of this Agreement. 17942-OMM"63505-2 1 2. Settlement. In consideration of this Agreement and the promises set forth herein, Aryana, Aryana Management and Pharaoh's agree to execute the "Stipulation for Permanent Injunction"in the form attached hereto as Exhibit"A"(the"Stipulation"). 3. Dismissal. Within ten (10) days of Redlands receiving the order from the Court on the Stipulation entering a permanent injunction in this matter, Redlands will dismiss the Action as to Motive Media, Inc. and Jeff Ryan Dillard, with prejudice and Aryana, Aryana Management and Pharaoh's shall dismiss their Cross-Complaint with prejudice. 4. Each Partv to Bear Own Costs and Fees. Each party shall bear its own attorneys' fees and other costs (including without limitation costs of expert witnesses or other consultants) incurred in relation to the Action, the negotiation and drafting of this Agreement and the Stipulation and the issuance of the permanent injunction. 5. Mutual Release. Except for the affirmative obligations set forth in this Agreement and Stipulation, each of the undersigned Parties to this Agreement, for themselves, their predecessors,heirs, successors-in-interest,assigns,affiliates member companies and current and former employees,agents,officers,directors, City Council members,spouse,heirs,attorneys and assigns 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, spouse, heirs, 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 for the affirmative obligations set forth in this Agreement and the Stipulation, 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. 7. 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 17942,00090%W505 2 2 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. 8. Indemnity. As stated in paragraph 3 above, Redlands has agreed to dismiss Motive Media, Inc. and Jeff Ryan Dillard,with prejudice, from the Action. To the extent either, or both Motive Media, Inc. or Jeff Ryan Dillard initiate any claim or action against Redlands relating to the Action,the Property or the Park,including any attempt to seek costs including but not limited to reasonable attorneys' fees, Aryana, Aryana Management, and Pharaoh's hereby expressly agree to defend and indemnify Redlands from and against any and all such claims, actions,causes of action, demands,costs,and liabilities. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 17942. 3505.2 I 14. 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. 15. 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. 16. 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. 17. 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 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. 18. 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. 19. 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. 20- Covenant to Take Further Actions Necessary. The Parties hereby agree to execute such other documents and to take such (,ther 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. 21. No Third - Pg!y 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. 22. 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. 1?94-2,OGOWk6W505 2 4 23. Effective Date. This Agreement shalt be effective as of the date of its complete execution by the last signing party. DATED: 2011 PHARAOH'S NATER&THE ARK, INC. By: Nitl DATED: Ast 2011 ARYANA MANAGEMENT GROUP By: Name: T' DATED: 2011 SHAH A SNA DATED: st }2 11 THE CITY OF REDLANDS t By: Name: ete Title: Mayer ATTEST: EST: Sam rwin, C•ty Clerk 7942.fIO 6863545.2 APPROVED AS TO FORM AND CONTENT: cxv 6tX 4 DATED: 2011 CITY OF REDLANDS CITY ATTORNEY A By: DANIEL J.MtGH Attorneys for Plaintiff THE CITY OF REDLANDS and THE PEOPLE OF THE STATE OF CALIFORNIA DATED:* 4,2011 GIRARDI SE B A R KTE Attorneys for Defendants/Cross- Complainants PHARAOH'S WATER&THEME PARK,INC., SHAHVAND ARYANA, and ARYANA MANAGEMENT GROUP 177942. 089,69635031 6