SETTLEMENT AGREEMENT AND RELEASE AGREEMENT

Transcription

1 AND RELEASE This Settlement Agreement and Release is entered into by and between OLD LOS ANGELES, a general partnership (hereinafter "Old LA" or "Plaintiff') and Defendant CITY OF LOS ANGELES, a municipal corporation, (hereinafter "the City" or "Defendant"). Plaintiff and Defendant are the "Parties" referenced in this Settlement Agreement and Release (hereinafter also "Settlement Agreement" and "Agreement"). RECITALS A. In July, 2004, Plaintiff commenced a civil action in the Superior Court of the State of California for the County of Los Angeles captioned Old LA, a general partnership v. City of Los Angeles and Does 1-20 inclusive, Case No. BC by filing a Complaint for breach of a written agreement entered into with the City in 1996 (the Termination Agreement). The case was dismissed without prejudice by Plaintiff in 2005 pursuant to a litigation tolling agreement entered into by the Parties dated April 11, 2005 (Tolling Agreement) for purposes of continued settlement discussions. B. The Parties desire to enter into this Settlement Agreement and Release which provides for the City to pay Four Hundred and Ninety Five Thousand Dollars ($495,000.00) to Plaintiff and in exchange, Plaintiff will waive any and all rights Plaintiff may have under the Termination Agreement, the Tolling Agreement and any and all claims Plaintiff asserted or could have asserted in Case No. BC , and in addition, not re-flle Case No. BC , in full settlement and release of any and all Plaintiff's claims against Defendant. NOW THEREFORE, the Parties desire to resolve all claims and disputes between them and in consideration of the covenants, agreements and representations set forth herein, agree as follows: I. RELEASE AGREEMENT For valuable consideration received as set forth in this Agreement, Plaintiff hereby releases and forever discharges the City, all of its past, present and future officers, directors, attorneys, agents, servants, representatives, and employees, including but not limited to: its past, present and future boards, cornrriissions, departments, subsidiaries, affiliates, partners, predecessors, successors-ininterest and assigns, and all other persons, firms, or corporations, of and from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, expenses, and compensation of any nature whatsoever, whether for compensatory, punitive or any other form of damages which they now have or which may hereafter accrue or otherwise be acquired, on account of, or in any way growing out of or related to, any matters, acts or omissions arising out of, or related to, one or more written agreements or leases involving the Pico Garnier Block at El Pueblo Historic Monument, including without limitation the 1996 Termination Agreement and the 2005 Tolling Agreement, and including without limitation, any and all claims Plaintiff asserted or could have asserted in Case No. BC and any and all known or unknown claims for any damages to Plaintiff, and the consequences thereof, which have resulted or may result from the alleged acts or omissions in the Complaint described in Paragraph A above, the 1996 Termination Agreement and/or the 2005 Tolling Agreement. This release and discharge shall be a fully binding and complete settlement between the Parties to this Settlement Agreement and all parties represented by or claiming through such Parties.

2 Page 2 of5 The Parties acknowledge that there is risk that, subsequent to the execution of this Agreement, one or more of the Parties will discover, incur or suffer loss, damage or injury which is in some manner caused by the matters referenced above, but which is unknown and unasserted at the time this Agreement is executed, and the Parties hereby expressly assume the above-mentioned risks. Notwithstanding the foregoing, the Parties agree that this release SHALL APPLY TO ALL KNOWN OR UNKNOWN OR UNANTICIPATED EVENTS RESULTING FROM THE TRANSACTIONS AND OCCURRENCES DESCRIBED ABOVE, and the Parties expressly waive all rights under California 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." Plaintiff further understands and agrees that the waiver in consideration of this Settlement Agreement is intended to and does release and discharge any and all claims alleged in the Complaints and other documents as set forth in paragraph A, including but not limited to damages and other relief. Plaintiff represents that before signing this Settlement Agreement, they have consulted with an attorney of their own choosing regarding the release of such claims. This Agreement shall become effective as to Plaintiff on the day it is signed by Plaintiff. 2. PAYMENT AND OTHER CONSIDERATION In consideration of this release set forth in Paragraph (1) above and the further conditions set forth in this Paragraph (2) and Plaintiff's promises and representations herein, the City hereby agrees to pay Plaintiff the sum of Four Hundred and Ninety Five Thousand Dollars ($495,000.00). Said sum shall be in the form of a check or warrant made payable to "Old Los Angeles, a general partnership.'' Said payment shall be reflected in a 1091} issued to Old Los Angeles, a general partnership, 2510 Main Street, Suite 210, Santa Monica, CA 1}0405, Tax Identification Number # }3. The waiver represents a compromise of all of Plaintiffs claims against Defendant, which claims Defendant disputes and does not admit, and all payments shall be paid to discharge all claims made by Plaintiff, and specifically in payment for all claims made and/or alleged for any damages relating to any Pico Garnier Block agreements. The City makes no warranty as to any tax consequences of such payments and a determination of the tax consequences of such payments are the sole responsibility of Plaintiff. 3. STATUTE OF LIMITATIONS As the cause of action has previously been dismissed pursuant to the 2005 Tolling Agreement, there is no need for a Request for Dismissal with Prejudice. Instead, Plaintiff hereby acknowledges that the Tolling Agreement has been terminated as if its termination provisions had been fully complied with and Plaintiff further acknowledges that the statute of limitations on all causes of action has expired and that Plaintiff shall have forfeited the right to re-file the case described in Paragraph A

3 Page 3 of5 above. However, the court shall retain jurisdiction pursuant to Code of Civil Procedure in order to enforce this Settlement Agreement and Release, should there be a breach by Plaintiff or the City of the terms of this Agreement. 4. COSTS, FEES AND OTHER EXPENSES Each of the Parties shall bear their own costs, attorney's fees, statutory or otherwise, and other expenses with respect to the civil action described in Paragraph A above and/or any administrative or other related proceeding. It is understood and agreed that this paragraph applies to all costs, fees and expenses in connection with this matter which remain outstanding as of the date of this Agreement. 5. DISCLAIMER OF LIABILITY Plaintiff agrees and acknowledges that execution of the waiver specified in this Settlement Agreement and other consideration set forth in paragraph 2 is in a full and complete compromise of matters involving disputed issues, that neither execution of the waiver by the City nor the negotiations for this settlement (including all statements, admissions or communications) by the defendants, City, or their attorneys or representatives, shall be considered admissions by them, and that no past or present wrongdoing on the part of Defendant City and/or any employees or any other person or entity, shall be implied by such execution or negotiations. 6. ENTIRE AGREEMENT This Agreement contains the entire agreement between Plaintiff and Defendant City with regard to the matters set forth in it and shall be binding upon and inure to the benefit, jointly and severally, of Plaintiff and Defendant and the executors, administrators, personal representatives, heirs, successors and assigns of each. Any prior agreements, promises, negotiations or representations, whether written or oral, relating to the subject matter of this Settlement Agreement and Release which are not expressly set forth in this Settlement Agreement are of no force or effect. Any amendment or modification of this Settlement Agreement and Release must be in writing, and signed by Plaintiff and the City. 7. CONTROLLING LAW This Settlement Agreement is entered into in the State of California and shall be construed and interpreted in accordance with the laws of that State. 8. REPRESENTATIONS In entering into this Settlement Agreement, both Parties represent that they have relied upon the advice of their attorneys, and that the terms of this Settlement Agreement have been completely read and explained to the Parties by their attorneys, and that those terms are fully understood and voluntarily accepted by the Parties.

4 Page 4 ofs 9. ADDITIONAL DOCUMENTS The Parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement and Release. 10. CONSTRUCTION This Settlement Agreement and Release was mutually drafted by the Parties and their counsel, and it is the result of arms length negotiations. In the event of any ambiguity in or dispute regarding the interpretations of this Settlement Agreement and Release, any such ambiguity or dispute shall not be resolved by any rule oi: interpretation providing for interpretation against the party who caused the uncertainty to exist, or against the draftsman, and the provisions of Civil Code I 654 shall not apply. Civil Code 1654 provides the following: In cases of uncertainty not removed by the preceding rules, the language of a contract shall be interpreted most strongly against the party who caused the uncertainty to exist. 11. IDENTIFICATION OF INDIVIDUAL PARTIES Plaintiff and counsel for Plaintiff agree not to disclose the name of any individual party in connection with any publication of the terms and conditions of this Settlement Agreement and Release. 12. FULL AND FINAL SETTLEMENT This Agreement is intended to and does constitute a full and final settlement of any and all claims, disputes, actions and potential claims, disputes and actions of whatever sort or nature in any way relating to the action, including without limitation, any of City's actions in connection with its actions involving the Pico Gamier Block. Payment of the above-referenced sums shall constitute, inter alia, payment in full for any and all of claims of Plaintiff against City, including without limitation, claims for real property, severance damages, business losses or damage, personal losses or damage, interest of any type or nature, litigation expenses of any type or nature, and costs. 13. ORIGINALS AND NUMBER OF PAGES This Agreement may be executed in counter parts in at least (5) duplicate originals, each of which is deemed to be an original. A photocopy or facsimile of a signature shall be good as an original. This Release and Settlement Agreement, including signatures, consists of five (5) pages.

5 Page 5 of5 WHEREFORE, by signing this Agreement, each signatory attests that he or she is duly authorized by his or her respective Party, corporation or entity, if applicable, to execute this Agreement. The signature of the City Attorney below confirms the approval of the City Council of the City of Los Angeles. The Parties have caused this instrument to be executed. DATED: PLAINTIFF: OLD LOS AN DATED: lt/t~e/wn-- ~ f By: ALBERT T. EHRINGER DATED: 1 +',b_,_,l G"-l/,,-zo~"-rl---=-- COUNSEL FOR PLAINTIFF: VAN ETTEN SUZUMOTO & BECKETT LLP DATED: By: ~==~~----- LESLIE M. WERLIN, Esq. COUNSEL FOR DEFENDANT DEFENDANT: CITY OF LOS ANGELES. CARMEN A. TRUTANICH, ~ty Attorney By: ~===~-~L-J~-;;;:!s.\==:: DOV S. LESEL, Assistant City Attorney OFFICE OF THE CITY ATTORNEY H:\EP OLD LA SETTLEMENT AGREEMENT AND RELEASE Nov IS, 2012.doc

6 Page5 of5 WHEREFORE, by signing this Agreement, each signatory attests that he or she is dujy authorized by his or her respective Party, corporation or entity, if applicable, to execute this Agreement. The signature of the City Attorney below confirms the approval of the City Council of the City of Los Angeles. The Parties have caused this instrument to be executed. PLAINTIFF: By: ~---- ANDY CAMACHO By: ---c::----=-=--c=,---- ALBERT T. EHRlNGER By:_~~~~~~~~---- GRAND AMERICAN, Inc. BRUCE D. PHILLIPS, President COUNSEL FOR PLAINTIFF: DEFENDANT: CITY OF LOS ANGELES. CARMEN A. TRUTANICH, City Attorney By:~~~~~~~-~~-- DOV S. LESEL, Assistant City Attorney OFFICE OF THE CITY ATTORNEY H:IEP OLD LA SETILEMENT AGREEMENT AND RELEASE Nov!5, 20l2.doc