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HomeMy WebLinkAboutRussell, Richard D & Jeannie Settlement Agreement - Quitclai AP Order No. CONFORMED C 167-324-17 (a portion) Escrow No. 89®v_-J5T3 Not Compared with 0; Jai rtECORDEDIN OFFICIAL RECORDS Loan No. OF ORANGE COUNTY,CALIFORNIA 4:00 WHEN RECORDED MAIL TO: EXEMPT PM OCT 6 1989 CITY OF HUNTINUIUN BEACH 2000 Main St., P.O. Box 190 C16 Huntington Beach, California 92648 Ga. Q.S/&*.a Recorder SPACE ABOVE THIS LINE FOR RECORDER'S USE MAIL TAX STATEMENT TO: DOCUMENTARY TRANSFER TAX$ ... Computed on the consideration or value of property conveyed;OR ... Computed on the consideration or value less liens or encumbrances remaining at time of sale. `l THE UNDERSIGNED � J Signature of Declarant or Agent determining tax—Firm Name QUITCLAIM DEED Tax•Exempt_Coverr!:,.,..t FOR A VALUABLE CONSIDERATION,receipt of which is hereby acknowledged, CITY OF I-;12r,.FF:'••, • , Conc a c;c: .•.v , RICHARD DEAN RUSSELL AND JEANIE LYNN RUSSELL ,i1 Cterk '%677 does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to eputy City-Clerk CITY OF HUNTINGTON BEACH, a municipal coLpuration the real property in the City of HUNTINGTON BEACH ,State of California,described as County of ORANGE THAT PORTION OF TAT NO. 22 AND 24 IN TRACT NO. 298 IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON A MAP RECORDED IN .BOOK 14, PAGE 24 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORER OF SAID LOT NO. 22 THENCE WESTERLY ALONG THE NORTHLINE OF SAID LOT A DISTANCE OF 19 FEET TO A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 27.00 1EET; THENCE WESTERLY, SOUTHWESTERLY AND SOUTHERLY ALONG SAID CURVE TO A POINT OF TANGENCY WITH THE WEST LINE OF SAID LOT 22; THENCE NORTHERLY ALONG SAID WEST LINE 17 J EbT TO A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS' OF 30.00 FEET; THENCE NORTHERLY, NORTHEASTERLY AND EASTERLY TO THE POINT OF TANGENCY WITH A LINE PARALLEL WITH AND 20.00 FEET NORTH MEASURED AT RIGHT ANGLES FROM THE NORTH LINE OF SAID LOT_ 22; THENCE EASTERLY ALONG SAID PARALLEL LINE 16 FEET TO THE EAST LINE OF SAID LOT 24; THENCE SOUTHERLY ALONG SAID EAST LINE 20 FELT TO THE POINT OF BEGINNING. This document is solely for the official business of the City of Hunti:r;ton Beach, as contem- plated 4n.ier Government Code APPROVED AS TO FORM: Sec. 6103 and should be recorded I AIL HUT'TON tree of charge. CT^ .TT HEY By. Deputy City Attorney (— Dated AUGUST 21, 1989 - Q',> / /. . RICHARD DEAN RUSSELL STATE OF CALIFOIRNM Ise. COUNTY OF )ss,• q , On AUGUST 21, 1989 p�rLg LYNN RUSSELL �Y before me,the undersigned,a Notary Public in and for said State, personally appeared RICHARD DEAN RUSSELL AND JEANIE LYNN RUSSELL personally known tome(or proved to me on the basis of satisfactory u ��^OFFICIAL SEAL evidence)to be the person(s)whose name(s)is/are subscribed to CHRISTINE L. HOYT 1 y- � Notary Public-California the within instrument and acknowledged to me that he/she/they j •• a` ORANGE COUNTY executed the same. lam+ My Comm.Exp.July 10,1992 WIT SS m ata official seal. ' '' "'' Signat (This area for official notarial seal) CHRISTINE L. T RE UEP FOR CITY COUNC!A _ ION �- Date OCTOBER 2, 1989 Submitted to: HONORABLE MAYOR AND CITY COUNCIL C Submitted by: PAUL E. COOK, CITY ADMINISTRATOR f Prepared by: ROBERT J. FRANZ DEPUTY CITY ADMINISTRATO Subject: SETTLEMENT - PROPERTY ACQUISITION; WAR CR V SS e-i S APPROVED BY CIT COU �C ` f /0 - 19 Consistent with Council Policy? [X] Yes [ ] New Policy or Exception 9 c' ) LERK Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, ATfachments: • STATEMENT OF ISSUE: The City of Huntington Beach, in the process of widening Warner Avenue with Federal Aid Urban Funds, brought an eminent domain action to acquire an easement interest property leased by the Russells. This agreement states the terms of a settlement and releases back to the City the Deposit of Probable Compensation placed with the court. RECOMMEND Approve the settlement agreement and release and authorize the Mayor and City Clerk to execute same. ANALYSIS The City, in widening Warner Avenue needs a portion of the property on the southeast corner of Warner Avenue and Beach Boulevard as indicated on the attached map. The Russells operate the car wash located on this corner. The City brought eminent domain action for the acquisition of this property and the attached agreement was the result of subsequent negotiations. The settlement is just_ and equitable to both parties, providing $33,500 for the acquisition of the easement interest and payment for documentable business losses due to the project through 12 m^ +hs following completion of the construction. FUNDING 87% from Federal Aid Urban Funds and the balance from local highway funds. ALTERNATIVE ACTION Do not approve the agr'e^-,ent and release and pursue a court settlement. ATTACHMENTS Settlement Agreement and release. 1 `' .3MB/pl/rf 0033u pin G/AG � 10 . EXHIBIT "A" ..i .1 Alil. fi i ' SECT/ON L /NE - O WARNER AVENUE (\.' 1- . Z / , / \t. to i �y , . ': .1.:. . 1 I.:::) -....J 19 7 p 1 , . (:)::) , .. . • • I _ • hoe' I is I. J r'; y La)I61 1 . ' •V V r �S C A L ' / -- c'ooc.O 5991 ti SETTLEMENT AGREEMENT AND RELEASE BY AND BETWEEN THE CITY OF HUNTINGTON BEACH AND RICHARD D. RUSSELL AND JEANIE RUSSELL This agreement is made and entered into this .2. NO day afro awe of .)11' 6wlax , 1989 , at Huntington Beach, California, by and between the City of Huntington Beach, hereinafter referred to as "the CITY, " and Richard D. Russell and Jeanie Russell , hereinafter referred to as "the RUSSELLS. " Whereas, on or about March 24 , 1989 , the CITY brought a civil action in the Superior Court of California, County of Orange, case number 58-59-12, against certain defendants , namely Warner Beach Company, Inc . ; Union Oil Company of California; R. A. Mann, Inc. , dba Dollar-Rent-A-Car; M. Friis-Hansen and Company; Security Pacific National Bank; California Land Title; Bank of Westminster; Does 1 through 50 , inclusive; and all persons unknown claiming any right, title, interest or estate in the property; and Said civil action was brought pursuant to the powers of eminent domain pursuant to California Code of Civil Procedure §1250 . 310 ; and Said civil action was the result of differences between the CITY and the aforesaid defendants concerning the amount of compensation to be paid by the CITY for the taking pursuant to the powers of eminent domain of that certain easement interest described as follows : That portion of Lot No . 22 and 24 in Tract No . 298 in the City of Huntington Beach, County of Orange, State of California as shown on a map recorded in Book 14 , Page 24 of Miscellaneous Maps in the Office of the County Recorder of said county described as follows : -1- ti Beginning at the northeast corner of said Lot No. 22 thence westerly along the northline of said lot .a distance of 19 feet to a tangent curve concave southeasterly having a radius of 27.00 feet; thence westerly, southwesterly and southerly along said curve to a point of tangency with the west line of said Lot 22; thence northerly along said west line 17 feet to a curve concave southeasterly having a radius of 30 . 00 feet; thence northerly, northeasterly and easterly to the point of tangency with a line parallel with and 20 . 00 feet north measured at right angles from the north line of said Lot 22; thence easterly along said parallel line 16 feet to the east line of said lot 24; thence southerly along said east line 20 feet to the point of beginning; and On or about May 15, 1989, unnamed defendant Richard Russell filed an answer to the complaint, denying certain of the allegations and alleging certain affirmative defenses to the aforesaid civil action; and The RUSSELLS are the operators of System Auto Wash, a car wash business located on the larger parcel containing the portion to which the CITY seeks an easement interest; and The RUSSELLS are the lessees of said parcel, under that certain unrecorded lease dated January 30, 1985, between Donald W. Walsh and G. R. Sass, a General Partnership, as Lessors, and Richard Russell, Jeanie Russell, and Eddie R. Fischer, a General Partnership as Lessees; and Based on a desire to avoid further litigation and settle the aforesaid civil action, the RUSSELLS and the CITY desire to bargain and buy peace without admitting fault or liability, and set the amount of compensation to the RUSSELLS for the taking contemplated in the complaint, NOW, THEREFORE, in consideration of the mutual dependent -2- covenants, conditions, and releases herein contained, the parties hereto do hereby agree as follows : 1. GENERAL RELEASE; TERMS AND CONDITIONS OF SETTLEMENT Each party, without admitting fault, liability, or culpability of any kind, hereby releases each other party from all claims each has on the other for any cause of any nature whatsoever, whether or not growing out of the above-referenced dispute, on the following terms and conditions : (a) The RUSSELLS withdraw all objections to the taking of the aforesaid easement, and the CITY will prepare for execution by the RUSSELLS a quitclaim deed in a form satisfactory to the CITY. Said deed shall quitclaim to the CITY any interest or title in the property described above that the RUSSELLS may own or claim, of any nature whatsoever, including but not limited to, said unrecorded leasehold described above. (b) The CITY shall pay as and for full, final and complete compensation for said quitclaim deed the sum of Thirty-three Thousand Five Hundred and no/100 Dollars ($33 , 500 . 00) together with that further and additional compensation set forth in subparagraphs 1(c) and 1(d) below. The aforementioned sum comprises the agreed upon value of the improvements in the portion to be taken by the CITY ($23,500 . 00) and the value of severance damages ($10, 000 . 00) . (c) The CITY agrees to pay the RUSSELLS for such business losses, suffered during the construction of the CITY' S street widening project on the property described herein, if any. Said losses shall be determined by comparing the gross -3- profit (as defined below) adjusted for inflation as measured by the Consumer Price Index for the Orange County area (not to exceed five percent per annum) earned by the RUSSELLS' car wash during the construction of the project on the property described herein, against the average of gross profit earned by the car wash for the comparable dates of the previous three years . It shall be the responsibility of the RUSSELLS to produce the appropriate accounting documents and records necessary to make the above determination. The RUSSELLS agree to certify the accuracy of said documents and records . The payment for the loss of business during construction shall be made as soon as reasonably practicable following the completion of the CITY' S construction on the property described herein. (d) The CITY agrees to pay the RUSSELLS for such business losses, suffered after construction is completed on the property described herein, due to the construction or the new design and layout of the car wash, if any. Said losses shall be determined by comparing the gross profit (as defined below) adjusted for inflation as measured by the Consumer Price Index for the Orange County area (not to exceed five percent per annum) earned by the RUSSELLS' car wash in the twelve-month period following completion of the construction on the property described herein, against the average of gross profit earned by the car wash in the comparable twelve-month period of the preceeding three years . It shall be the responsibility of the RUSSELLS to provide the appropriate accounting documents and records necessary to make the above determination. The RUSSELLS agree to certify to the accuracy of said documents -4- 111 • and records . The payment for the loss of business after the completion of construction on the property described hereinshall be made as soon as reasonably practicable following the completion of the twelve-month examination period described herein. (e) Gross profits shall be defined as : Gross Sales, less the Cost of Goods and Sales Tax. (f) This Settlement Agreement and release shall be contingent on approval of the City of Huntington Beach City Council at its regularly scheduled meeting of September 5, 1989 . If this settlement agreement and release is not approved at said meeting, the offer to settle contained herein shall be deemed withdrawn. (g) Simultaneously with execution of this Settlement Agreement and Release by the CITY, the CITY shall instruct its attorneys to immediately prepare and have executed a dismissal of defendant Richard Russell from the aforesaid civil action, with prejudice. Said dismissal shall be filed upon receipt by the CITY of the quitclaim deed mentioned above. (h) Upon completion of construction, CITY agrees to reinstall in good working order all equipment, signs, landscaping, plumbing, electrical and other improvements removed by CITY during construction, at no expense to the RUSSELS. 2 . RETURN OF CITY'S DEPOSIT OF PROBABLE COMPENSATION The CITY has previously deposited with the court, on April 7, 1989, the amount of Forty-two Thousand Four Hundred Thirty-two Dollars ($42,432. 00) as probable compensation -5- pursuant to C.C.P. §1255 .010 . The RUSSELLS shall stipulate to the return of such money, plus interest, to the CITY upon dismissal of the RUSSELLS from the aforesaid civil action, and agree to cooperate with CITY in the execution of such court proceedings as necessary to return said deposit to CITY. 3 . ESCROW The parties shall, upon the execution of this agreement, open an escrow to accomplish the transferance of title, and payment prescribed in paragraph (b) above, as herein contemplated. Said escrow shall be thirty (30) days in duration. 4 . INDEMNITY AND HOLD HARMLESS Except as otherwise indicated, the parties hereto represent and warrant that they have not assigned or otherwise transferred any interest in any claim which they may have against the other based upon, arising out of, or relating to the subject matter of said dispute, or any other claim, and each party agrees to indemnify and hold each other harmless from any claims, demands, damages, debts, liabilities, obligations, costs, expenses, actions, causes of action, and attorney' s fees incurred as a result of any person or entity asserting any claim or cause of action based upon any such assignment or transfer of claims . 5 . NO ADMISSION OF LIABILITY It is understood and agreed that this agreement is a compromise from disputes and differences as to the rights, duties, and obligations of each of the above-mentioned parties arising from the subject matter of this dispute and that this -6- agreement is not to be construed as an admission of liability by either party hereto and that said release is to deny liability and is merely to avoid litigation and to buy peace. 6 . CALIFORNIA LAW APPLIES The validity of this agreement and any of its terms and conditions, as well as the rights and duties of theparties, shall be interpreted pursuant to the laws of California. 7. ORDINARY MEANING APPLIES The terms and conditions of this agreement shall be construed pursuant to their ordinary meaning and shall not be interpreted against the maker. 8 . PARTIAL INVALIDATION OF TERMS If any term, covenant, condition, or provision of this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 9 . RELIANCE UPON COUNSEL Each party hereto stipulates and agrees that each party hereto has been represented by and has relied upon independent counsel in the negotiation and preparation of this agreement, and that each party hereto has had the contents of the agreement fully explained to each party hereto by such counsel, and is fully aware of and understands all of the terms of the agreement and the legal consequences thereof. 10 . RELEASE OF FUTURE CLAIMS Each party hereto acknowledges that each party hereto has been advised by his, her or its own legal counsel and that -7- each party hereto is familiar with the provisions of §1542 of the California Civil Code which provides as follows : 1542 : Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Notwithstanding §1542 of the California Civil Code, said agreement shall act as a release of any and all present and future claims that may arise in the above-mentioned dispute whether such claims are currently known, unknown, foreseen, or unforeseen, except those arising from the breach thereof . The parties understand and acknowledge the significance and consequence of such waiver and hereby assume full responsibility for any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, and expenses whatsoever which the undersigned now have, or which may hereafter accrue on account of, or in any way grow out of, any and all known, unknown, foreseen, and unforeseen damages and the consequences thereof resulting, or to result, from disputes and differences as to the rights, duties, and obligations each party has arising from said action. 11. BINDING UPON EXECUTION This agreement shall not become binding unless and until all parties and their respective attorneys have executed this agreement. This agreement may be executed in duplicate originals . 12 . TIME OF THE ESSENCE Time shall be of the essence of this agreement. -8- • 13 . ATTORNEYS FEES AND LITIGATION EXPENSES Each party is to bear its own attorney' s fees, litigation costs, and expenses, except as provided in para- graph 13(b) below. (a) The RUSSELLS hereby acknowledge that they have been advised by their legal counsel and are familiar with the provisions of §1268 . 610 of the California Code of Civil Procedure, which provides in part that the court shall award the defendant his litigation expenses whenever the proceeding is wholly or partly dismissed for any reason. Notwithstanding §1268 . 610 of the California Code of Civil Procedure, the RUSSELLS agree to bear their own litigation costs and expenses, including attorney' s fees, incurred as a result of the lawsuit herein. The RUSSELLS understand and acknowledge, and hereby waive and release, any and all claims for litigation expenses, costs and attorney' s fees arising under said C.C.P. §1268 . 610 . (b) If a dispute shall arise concerning the terms, conditions as enforcement of this agreement, the prevailing party shall be entitled to reasonable attorney' s fees and costs of suit. 14 . ENTIRETY This agreement constitutes the entire agreement and understanding between the parties concerned as subject matter hereof, and supersedes all other agreements, written and oral, related thereto. Each of the undersigned parties acknowledge that no other parties nor any agent or attorney of any other party has made any promise, representation, or warranty whatsoever, express or implied, not contained herein concerning -9- the subject matter hereof to induce it to execute this agreement . IN WITNESS WHEREOF, the parties hereto have executed this agreement by and through their authorized representatives on the day, month and year first above written. RUSSELLS CITY OF HUNTINGTON BEACH a California municipal corpor tion Richard D. Russell Mayor Jeanie ussell APPROVED AS TO FORM AND CONTENT: APPROVED AS TO FORM: Banni/ r �fBarry .' oss, Attorney for .� City Attorney Richard D. Russell and fg g /61 Jeanie Russell ea—/t'-e ATTEST: REVIEWED AND APPROVED: diet40644ef, City Clerk City Administrator INI IATED AND ROVED: INITIATED AND APPROVED: /4 . Public W rks Director Real property Manager 4-' -10- AP #167-324-11(a portion) ` Order No. IIIIP . Escrow No. Loan No. WHEN RECORDED MAIL TO: CITY OF HUNTINC,IUN BEACH 2000 Main St., P.O. Box 190 Huntington Beach, California 92648 SPACE ABOVE THIS LINE FOR RECORDER'S USE MAIL TAX STATEMENT TO: DOCUMENTARY TRANSFER TAX$ ... Computed on the consideration or value of property conveyed;OR Computed on the consideration or value less liens or encumbrances remaining at time of sale. THE UNDERSIGNED I:51123 Signature of Declarant or Agent determining tax—Firm Name QUITCLAIM DEED Tax-Exempt-C,_,e -. - ',fir'r,^ FOR A VALUABLE CONSIDERATION,receipt of which is hereby acknowledged, CITY OF Ht.,-, ' ,. con::v t... RICHARD DEAN RUSSELL AND JEANIE LYNN RUSSELL pp-i; ��'��^^-�� does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to C Ly Clerk CITY OF HUNTINGION BEACH, a municipal corporation the real property in the City of HUNTINGTON BEACH ,State of California,described as County of ORANGE THAT PORTION OF LOT NO. 22 AND 24 IN TRACT NO. 298 IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS SHOWN ON A MAP RECORDED IN BOOK 14, PAGE 24 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT NO. 22 THENCE WESTERLY ALONG THE NORTHLINE OF SAID LOT A DISTANCE OF 19 FEET TO A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 27.00 FEET; THENCE WESTERLY, SOUTHWESTERLY AND SOUTHERLY ALONG SAID CURVE TO A POINT OF TANGENCY WITH THE WEST LINE OF SAID LOT 22; THENCE NORTHERLY ALONG SAID WEST LINE 17 JILT TO A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 30.00 FEET; THENCE NORTHERLY, NORTHEASTERLY AND EASTERLY TO THE POINT OF TANGENCY WITH A LINE PARAT,TFL WITH AND 20.00 Far NORTH MEASURED AT RIGHT ANGTFS FROM THE NORTH LINE OF SAID LOT 22; THENCE EASTERLY ALONG SAID PARALLEL LINE 16 FEET TO THE EAST LINE OF SAID LOT 24; THENCE SOUTHERLY ALONG SAID EAST LINE 20 BEET TO THE POINT OF BEGINNING. This document is solely for the 1 official business of the City of Huntinton Beach, as contem- plated unner Government Code APPROVED AS TO FORM: Sec. 6103 and should be recorded GAIL HUTTON free of charge. C TY ATT RNE B1. y. Deputy City Attorney • Dated AUGUST 21, 1989 / �2 Q�� / fig C,y�,�' I RICHARD DEAN RUSSELL STATE OF CALIFO JJA.GE ]ss. COUNTY OF )ss. On AUGUST 21, 1989 q�'�-"^�`� d '� f l AtrY , ,CT ANIE LYNN RUSSELL before me,the undersigned,a Notary Public in and for said State, (((/// personally appeared RICHARD DEAN RUSSELL AND JEANIE LYNN RUSSELL personally known to me(or proved to me on the basis of satisfactory OFFICIAL SEAL evidence)to be the person(s)whose names is/are subscribed to _. CHRISTINE L.HOYT '. ' p O O s ,, �L% Notary Public-California the within instrument and acknowledged to me that he/she/they I'Fi► t1' ORANGE COUNTY executed the same. 1 My Comm.Exp.July 10,1992 , WIT SS m arytl �r/�t_a of/ !? official seal. Signet C (This area for official notarial seal) CHRISTINE L. H T • CITY OF HUNTINGTON BEACH ta 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK October 4, 1989 Richard D. and Jeanie Russell System Auto Wash 17042 Beach Blvd. Huntington Beach, CA 92647 Deaf Mr. & Mrs. Russell : The City Council of the City of Huntington Beach at the regular meeting held October 2, 1989, approved a Settlement Agreement and Release by and between the City of Huntington Beach and Richard D. Russell and Jeanie Russell for property located on the southeast corner of Warner Avenue and Beach Boulevard. Enclosed is an executed copy of the agreement for your records. Sincerely, Connie Brockway, CMC CB:me Enclosure CC: Dan Brennan, Real Property Wayne Lee - Finance (Telephone:714-536-5227)