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Singh, Jasbir; Kamaljit; and Shawndeep and Canyon Hills Market A2015-88 1�1 os—S? SETTLEMENT AGREEMENT AND MUTUAL RELEASE THIS SETTLEMENT AGREEMENT ("Agreement") is made and entered into as of this 2.3 day of March, 2015 (the "Effective Date") by and among JASBIR SINGH, KAMALJIT SINGH, (collectively referred to as the "Owners"), SHAWNDEEP SINGH, individually, and CANYON HILLS MARKET, INC., (all collectively referred to as the "Singh Parties"), on the one hand, and the CITY OF CHINO HILLS (the"CITY"), on the other. The above parties will be referred to collectively as the "Parties"or "Settling Parties." RECITALS A. Jasbir Singh and Kamaljit Singh, individually, are the owners of the property located at 1400 Carbon Canyon Road in the City of Chino Hills and which is legally described as Assessor's Parcel Number 1000-131-03, as shown in the latest records of the Office of the Tax Assessor of the County of San Bernardino (the "Property"). Canyon Hills Market, Inc., converted from Canyon Hills Market LLC, operates a convenience store on the Property. Shawndeep Singh, acting on behalf of all of the Singh Parties, applied for a Site Plan Review for the construction of a 5,069-square foot multi-tenant office/retail building and Conditional Use Permit to allow the sales of alcoholic beverages for off-site consumption within the convenience store on the Property. B. On or around December 18, 2007, the Planning Commission of the City of Chino Hills adopted a Mitigated Negative Declaration which included a traffic impact study ("MIND") and a Mitigation Monitoring Plan and approved Site Plan Review 06SPRO4 for the construction of a 5,069-square foot multi-tenant office/retail building and Conditional Use Permit 07CUP07 to allow the sales of alcoholic beverages for off- site consumption within the convenience store on the Property("2007 Approvals"). C. On April 20, 2010,the CITY approved an extension of time 09EXT02 for Site Plan Review 06SPRO4 and Conditional Use Permit 07CUP07. D. Conditions of Approval 8 to 09EXT02 and Condition of Approval 24 a,b, and c of the 2007 Approvals and the corresponding mitigation measures in the MND required the applicant to pay three fees for fair share contributions determined to be 20.3%of the cost of three contemplated traffic improvements in the amounts of$58,813, $58,813 and $50,750, respectively, ("Impact Fees") prior to issuance of building permit. Condition 8 for the extension of time 09EXT02 modified this requirement so that the Impact Fees were required to be paid prior to issuance of temporary certificate of occupancy rather than prior to issuance of the building permit. E. In or about October 2011, and as required by Condition 24 of the 2007 Approvals, as modified by Condition 8 in 2010, the Singh Parties, through Jasbir Singh, paid the CITY a total amount of$168,196.00. ($168,376.00 should have been collected at that time, but numbers were apparently transposed by mistake resulting in an actual payment for 24 c of$50,570.) F. The Singh Parties now contend that all three Impact Fees should be returned because the traffic improvements contemplated in the MND have not yet been constructed and may never be constructed, and that die Singh Parties are entitled to a full refund of the Impact Fees paid. G. CITY maintains that in particular the impact fee described in subparagraph c of Condition 24 for$50,570 for a traffic signal at the intersection of Carbon Canyon Road (SR-142) (NS) al Canyon Hills Road(EW) ("Traffic Signal") is and was lawful and proper and,that the Traffic Signal is likely to be constructed because it will likely be required as a condition of approval of nearby future development. Such future development,however, can only be required to pay for its "fair share"of development. The Traffic Signal impact fee paid by Jasbir Singh are intended to reimburse the entity that constructs the Traffic Signal. Further,the Singh Parties contend that sales at the retail stores located on the Property are negatively impacted by the lack of the Traffic Signal, and Singh Parties would like the Traffic Signal to be constructed. Accordingly, a dispute exists between the CITY and the Singh Parties concerning the imposition of the Impact Fees,the alleged negative impact of the Traffic Signal not being installed, and the right of the Singh Parties to a refund of all or a portion of the same(the "Dispute"). The Singh Parties and the CITY now wish to resolve the Dispute and settle all claims between them relating to the Impact Fees. K. The Singh Parties represent that they are the only owners of the Property and the Circle K convenience store on the Property; the lessors of the other businesses on the Property; and the only parties potentially entitled to claim a right to a refund of the money paid by JasbirSingh for the Impact Fees. NOW, THEREFORE, in consideration of the mutual covenants and agreements described below, and for good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Settling Parties hereby agree: 1. Oblieations of the CITY. a. CITY agrees to refund to Owners the $58,813 paid pursuant to subparagraph a of Condition 24 and to also refund the $58,813 paid pursuant to subparagraph b of Condition 24. The total dollar amount to be refunded by CITY to Owners pursuant to this Agreement is $117,626.00. The refund will be made available for Singh Parties to collect at CITY's office, at 14000 City Center Drive, Chino Hills, CA 91709, within 14 days of the Parties' executing this Agreement. The Singh Parties understand and agree that no interest shall be due and owing from CITY on the amount of the refund. b. CITY shall retain the cost ($50,570) for the Traffic Signal. CITY represents and warrants that these funds shall be used only for the purpose of constructing such Traffic Signal or a similar improvement at that intersection that would provide similar benefits to motorists, pedestrians, the Property and other nearby properties. CITY further represents that if at any time in the future, that CITY determines in its sole discretion that the Traffic Signal, or similar improvement, will not be developed at this intersection at Carbon Canyon Road(SR-142) (NS) at Canyon Hills Road(EW),that CITY will return the $50,570 to Owners or to Owners' heirs or beneficiaries. This representation, however, does not in any way limit the release by Singh Parties set forth in Section 2 below. 2. Release by Sineh Parties. a. CITY may retain the $50,570 paid by Jasbir Singh pursuant to subparagraph c of Condition 24 and Singh Parties hereby waive, on behalf of themselves, their successors, agents, lessees,heirs and beneficiaries, any and all claims for a return or refund of all or part of that amount and any damages allegedly caused by the Traffic Signal not being installed. b. Singh Parties and their agents,representatives, successors, lessees, heirs, and beneficiaries, forever release and discharge CITY, and its respective officers, elected or appointed officials, attorneys, agents, representatives, directors, members, shareholders, employees, successors, and assigns, and each of them (collectively the "City Parties"),who are each express third party beneficiaries of this Agreement, from any and all past,present or future claims, actions, losses, liabilities, causes of action, liens, demands, rights, damages, costs, attorney's fees, interest, expenses, reimbursement and compensation of any nature whatsoever relating to the Dispute (collectively, "Claims"), whether known or unknown, disclosed or undisclosed, and whether or not anticipated, in any way related to the Dispute. 3. Mutual Releases. a. This Agreement is in full accord, satisfaction and discharge of any and all Claims for compensation of any kind that Singh Parties may have against the CITY Parties. b. Each of the Settling Parties also waives any and all claims for the recovery of any damages, costs, expenses or fees, including attorney fees, associated with the matters and Claims released herein. c. In connection with the release by Singh Parties as set forth in 3.a. and 3.b. above and by CITY as set forth in 3.b. above, each Party to this Agreement, and anyone acting by or through them: (1) Acknowledge that they have been advised by legal counsel and are familiar with the provisions of California Civil Code Section 1542, which provides: "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[;]" and (2) Waive any and all rights that they may have under the provisions of California Civil Code §1542 as well as under any other statute or common law principle of similar effect. In the event that any waiver of the provisions of Section 1542 of the California Code provided for in this Agreement shall be judicially determined to be invalid, voidable or unenforceable, for any reason, such waiver to that extent shall be severable from the remaining provisions of this Agreement, and the invalidity, voidability or unenforceability of the waiver shall not affect the validity, effect, enforceability or interpretation of the remaining provisions of this Agreement. d. Each Party acknowledges and agrees that this Agreement is a compromise and settlement of their disputes and differences, and is not an admission of liability or wrongdoing by any party. e. Each Party understands that the facts in respect of which the releases made in this Agreement are given may hereafter turn out to be other than or different from the facts now believed by each Party to be true; and each Party hereto accepts and assumes the risk of the facts turning out to be different and agrees that this Agreement will be and remain in all respects effective and not subject to termination or rescission by virtue of any such difference in facts. f. Each Party acknowledges and agrees that nothing contained herein will release or discharge any of them from the rights, duties and obligations assumed under this Agreement. 4. Representations and Warranties. Each Party represents and warrants that he, she or it has not heretofore assigned or transferred, or purported to assign or transfer, any of the claims released pursuant to this Agreement to any other person not a party hereto, and that he, she or it is fully entitled to compromise and settle same. Each party indemnifies the other against all costs, expenses, and judgments, including all attorney's fees incurred, in the event any third party asserts any of the claims released pursuant to this Agreement based upon the assignment or transfer thereof to such third party. 5. No Admissions. Each Party, acknowledges that this Agreement affects the settlement of claims that are denied and contested by the other, and that nothing contained herein can be construed as an admission of liability by or on behalf of either Party, all of which liability is expressly denied. 6. Own Counsel. Each Party acknowledges that he, she or it has been represented by counsel of his, hers or its own choice throughout all of the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. 7. Gender. References to the masculine, feminine, or neuter genders in this Agreement will each be inclusive of the others; references to the singular will include the plural; and references to "person"will include corporation, firm,partnership, trust or other form of association; all as required by the context of this Agreement. 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original,but all of which together will constitute one and the same instrument. In addition, a facsimile or photocopy signed copy of the Agreement will be treated as an original. 9. Captions. The captions of paragraphs contained in this Agreement are for reference only and are not to be construed in any way as a part of this Agreement. 10. Own Costs. As between themselves, each party to this Agreement will bear his, her or its own costs, expenses, and attorney's fees that he, she or it has heretofore incurred in connection with or arising out of the matters set forth in the Recitals hereinabove. 11. Entire Aareement. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. Each of the Parties hereto covenants that he or she has not entered into this Agreement as a result of any representation, agreement, inducement or coercion, except to the extent of representations and/or agreements specifically set forth herein. Each Party hereto further covenants that the consideration recited herein is the only consideration for entering into this Agreement, and that no promises or representations of other or further consideration have been made by any person. Each Party hereto further represents and covenants that in executing this Agreement each Party does so with knowledge of any and all rights which he, she or it may have with respect to the provisions of this Agreement; that he, she or it has carefully read and considered this Agreement and fully understands its contents and the significance of its contents; that he, she or it is entering into this Agreement of his, hers or its own informed and free will and based upon his, hers or its own judgment and that he, she or it has obtained independent legal advice with respect to this Agreement. This Agreement may be amended only by an agreement in writing and duly executed by all the Parties hereto. 12. Binding Effect. This Agreement is binding upon and inure to the benefit of the Parties hereto and to their respective employees, agents, heirs, representatives, and related-party successors and related-party assigns. 13. Severability. In the event any covenant, condition, or other provision herein is held to be invalid, void,or illegal, the same is deemed severed from the remainder of this Agreement and will not affect, impair or invalidate any other covenant, condition, or other provision herein unless a court finds that the stricken provision(s) were integral to the Agreement and that it would be unfair to enforce the balance of the Agreement. If any covenant,condition, or other provision herein is held to be invalid due to its scope or breadth, such covenant, condition,or other provision will be deemed valid to the extent of the scope or breadth permitted by law. 14. Authority. Each Party warrants, represents, and agrees that this Agreement has been duly approved, executed, and delivered and constitutes the valid and binding obligation of such Party; and that the individual executing this Agreement on behalf of such Party has the authority to do so. 15. Arm's Length Negotiations. This Agreement has been negotiated at aim's length between persons knowledgeable in the matters dealt with herein. In addition, each of the Parties hereto has been represented by independent legal counsel of his,her or its own choice. Accordingly, any rules of law, including, without limitation, California Civil Code § 1654, or any other statute, legal decision, or common law principle of similar effect,that would require interpretation of any ambiguities in this Agreement against the party that drafted it, is of no application and is hereby expressly waived. The provisions of this Agreement will be interpreted in a reasonable manner to effect the intentions of the Parties hereto and of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the Effective Date. CITY OF CHINO HILLS 1, By:( NI ----- --- KONRADT BARTLAM, City Manager ATTEST: r r Illtee By: Was /^ CHERYL`tALZ;City Clerk Approved as to form: By: a • .��/�, — , Assn. a1-rtl�a'x' 1.2,. MARK D. HENSLEY, City Attorney JASBIR SINGH, as individual KAMALJ1T SINGH, as individual SHAWNDEEP SINGH, as individual CANYON HILLS MARKET, INC. By: a 4 , JASIIIIR SINGH, Chairman of the Board By SIAWNDEEP 4INGH, Chief Financial Officer Approve s to o n: By: Of , YAS 10E P'aINZ'i$' Attorney for r• S R SINGH, KAMALJIT SINGH S- • N PEEP SINGH, and CANYON HILLS '•`• RK ' , INC.