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HomeMy WebLinkAboutContracts & Agreements_53-2015_CCv0001.pdf SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release("Agreement")is dated as of the date set forth below,by and among Wam Gold,LLC dba AAA Gold Exchange("Warn Gold"and/or "Defendant")on the one hand,and the City of Redlands(the"City"and/or"Plaintiff')on the other hand. Defendant and Plaintiff may be referred to collectively herein as the"Parties." RECITALS A. On December 24,2013,Plaintiff filed a complaint(the"Complaint")in the San Bernardino Superior Court(Case No. CIVDS 1315422)against Wam Gold(the"Action"). The Complaint consisted of a single claim for eminent domain,which sought the acquisition of a roadway easement and temporary construction easement(the"Easements")to portions of the real property located at 1601 and 1615 West Redlands Boulevard,Redlands,California 92373 and identified by the San Bernardino County Assessor as Parcel Nos. 0292-157-05,0292-157- 06,and 0292-157-31 (the"Property"). Plaintiff ailed suit against Wam Gold given Wam Gold's status as a tenant.at the Property. B. Wam Gold filed an Answer to the Complaint alleging,among other things,loss of business goodwill and pre-condemnation damages deriving from activities placing a cloud of condemnation over the Property and the business conducted on the Property. C. In an effort to avoid the uncertainty and expense of continued litigation,Plaintiff agreed to tender to Wam Gold the sum set forth below in addition to a complete release from Plaintiff of any and all claims,demands, and existing and potential causes of action arising out of, connected with, or incidental to Plaintiff s acquisition of the Easements, including, but not limited to, all causes of action,purported causes of action, claims, and demands set forth in the Action(the"Claims'). AGREEMENT NOW, THEREFORE,in consideration for the promises set forth in this Agreement,and having agreed to settle the Action, along with any disputes,known or unknown, between them, the Parties agree as follows: 1. Recitals. The above-stated Recitals are hereby incorporated herein by this reference and expressly trade a part of this Agreement. 2. Settlement Payment. In full settlement of any and all claims by Plaintiff against Wam Gold and any of their respective representatives, agents,officers, directors,attorneys, shareholders, successors,and/or assigns,Plaintiff shall tender to Wam Gold the sum of $2,500.00 (the"Settlement Sum"). The Settlement Sum must be tendered within thirty(30) calendar days of the execution of this Agreement by all Parties. The Settlement Sum must be made payable to the: "Kushner Carlson&--Client Trust Acct"and delivered to Michael B. Kushner of Kushner Carlson,PC,located at 15 Enterprise,Suite 110,Aliso Viejo,California 92656. The Parties agree that the Settlement Sum represents the total amount of Page 1 of 5 17442.00I01W580843.1 compensation to be paid to Wain Gold by Plaintiff for the claims,related to the Action,and full satisfaction of any and all of Plaintiff's obligations to Wam Gold,including without limitation, any compensation for loss of business goodwill,relocation costs,or damages of any other nature. 3. Dismissal with Preiudice. Upon the execution of the Agreement by all Parties,Plaintiff shall execute and file a dismissal with prejudice of the Action as against Wam Gold only within fourteen(14) calendar days. Plaintiffs counsel shall deliver a conformed copy of the dismissal to Wam Gold's counsel within thirty(30)days from the date of filing of the dismissal. Service upon Wam Gold's counsel may be completed via email,facsimile, or regular mail. 4. General Release, The Parties hereby release and discharge each other and their respective successors,assigns,trustee(s),-heirs,executors,administrators,predecessors, parents, subsidiaries,beneficiaries,representatives,agents,principals,partners, officers, directors, stockholders,attorneys, sureties,and any combination of the above,or anyone acting on their behalves,from any and all claims,causes of action,demands for reimbursement,request for payment and/or claims for relief,of any sort or description whatsoever, known or unknown,contingent or liquidated,past,present,or future, arising from and/or related in any way to the Action and/or the Claims, including loss of goodwill, severance damages,relocation assistance benefits, statutory interest,litigation expenses (including but not limited to those defined in California Code of Civil Procedure section 1235.140),claims for inverse condemnation or unreasonable pre-condemnation conduct, or any other compensation,including fixtures and equipment,damages or benefits,arising from the acquisition of the Easements. The Parties acknowledge,represent,and agree that this Agreement constitutes a release not only of claims regarding damages and losses which are now known and any damages which may develop'in the future from those damages or losses now existing as of the date of this Agreement;but also of any additional claims,damages or losses which may arise directly or indirectly in regard to the Claims and/or the Action. 5. Release of Known and Unknown Claims. By executing this Agreement,the Parties expressly waive the benefits and protection of California Civil Code §1542 by declaring that it is their express intention to release all present and future claims related to either or both the Claims and Action,or for that matter, any prior relationship between the Parties. This release is made by each of the Parties freely and with the full opportunity to seek the benefit of independent legal advice. The Parties further acknowledge and agree that they are fully aware of the provisions of Civil Code§1542,which provides: 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 further acknowledge and agree that each is aware that facts may hereafter be discovered which are different from or in addition to those which they now know or believe to be true with respect to this Agreement or to the matters stated herein,including but not Page 2 of 5 17942.00 10 B9580843.1 limited to any facts arising from or relating to the Claims and/or the Action. Nevertheless, the Parties agree that this Agreement shall be and remain in full force and effect in all respects notwithstanding any such different or additional facts. The foregoing Agreement and Release is and shall be without limit as to time. 6. Representation Re Counsel. The Parties each have separate counsel of their own choosing and acknowledge that they did,or had the opportunity to,seek their counsel's advice prior to executing this Agreement. The Parties acknowledge that they speak, understand,read, and write English well enough to fully comprehend the terms of this Agreement. Consequently,the Parties acknowledge and agree that in executing this Agreement,they are doing so voluntarily and with full knowledge of its legal significance. The Parties further acknowledge that they have read this Agreement,have had it fully explained by their counsel,and are aware of the content and legal effect of this Agreement. Finally,the Parties acknowledge that neither has made'any statements or representations regarding any fact relied upon in.e.ntering into this Agreement, and that neither does rely upon any such statement or representation,except as expressly stated in this Agreement. 7. Waiver of Attorney's Fees and Costs_the Action. The Parties agree that each shall bear its/their own costs and fees incurred in prosecuting or defending the Action,and in negotiating the terms of this Agreement. 8. Non-Admission. It is expressly understood,acknowledged and agreed to that by reason of entering into this Agreement,none of the Parties admit,expressly or impliedly,any fact or liability of any type or nature with respect to any matter,except as expressly stated herein, and none of the Parties have made any such admission,and this Agreement is entered into solely by way of compromise and settlement. 9. Authori . The Parties collectively represent,warrant and covenant that they are the sole and absolute owners of each and every claim covered by this Agreement. Plaintiff further acknowledges that it has the full and lawful authority to release and forever discharge the Action and its Claims. The Parties finther represent and warrant that they have not assigned, transferred,hypothecated,encumbered,liened,or given a security interest in any claim, cause of action, or right nor have they purported to assign or transfer to any person or entity, either voluntarily or involuntarily,any claim,cause of action or right,or any portion thereof, based upon,arising out of or in connection with any matter, fact or thing described or set forth in this Agreement. 10. Enforcenbili . The Parties intend'that the Court shall retain jurisdiction sufficient to permit its enforcement of the terms of this Agreement pursuant to Code of Civil Procedure Section 664.6. 11. No Waivers/Modifications. This Agreement may only be amended in a writing executed by the Parties. No breach of any provisions hereof can be waived unless done so in writing and signed by the Parties to be charged. Waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision hereof. Page 3 of 5 17942.0010119580843.1 12. Entire Agreement. This Agreement represents the entire agreement and understanding between the Parties concerning the Action and the Claims, and supersedes and replaces any and all prior negotiations, agreements,and understandings,either oral or written, involving the Parties. 13.Binding Upon Successors, The Parties acknowledge and agree that this Agreement shall be binding upon their mutual successors and assigns. 14. ARplicable Law. This Agreement shall be construed in accordance with, and governed by,the laws of the State of California,with venue in San Bernardino County. 15. Severabili . In the event that any provision or any portion of any provision set forth in this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable,or void,this Agreement shall continue in full force and effect without that provision or portion of provision,unless the absence of that provision or portion materially alters the rights and obligations of the Parties,in which case a court of competent jurisdiction shall determine the rights and obligations of the Parties pursuant to the intent of this Agreement. 16.Headings. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. 17. Counterparts, This Agreement may be executed in one or more identical counterparts, each of which shall be deemed to be an original hereof. This Agreement may also be executed and delivered via facsimile,which shall be deemed an original signature. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 4 of 5 17942.0010119580843.1 IN WITNESS WHEREOF, having discussed the terms of this Agreement with counsel of their own choosing,the Parties have executed this Agreement on the dates set forth below. CITY OF REDLANDS Dated:_ 7_1 S By: ATTEST: aul W. Foster Its: Mayor Sam Irwi City Clerk WAM GOLD, LLC dba AAA GOLD EXCHANGE -V Dated: 301�— By: Its: (�i/- -va,nrIq CIO( Page 5 of 5 17942.00101\9580843.1