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HomeMy WebLinkAbout2004 CON Ron Baker Chevrolet - Settlement Agreement��now-t4 City of National City Office of the City Attorney 1243 National City Boulevard, National City, CA 91950-4301 George H. Eiser, 11I • City Attorney (619) 336-4220 Fax (619) 336-4327 TDD (619) 336-1615 TO: Marti Alvarez, Administrative Secretary DATE: May 10, 2004 FROM: Ginny Orcutt, Executive Assistant to the City Attorney SUBJECT: Settlement Agreement with Ron Baker Chevrolet Please find attached an original of the Agreement of Settlement and Release of All Claims between the City and Ron Baker Chevrolet for your records. Executive Assistant Office of the City Attorney Attachment cc: Senior Assistant City Attorney ® Recycled Paper ORIGINAL FINAL AGREEMENT OF SETTLEMENT AND RELEASE OF ALL CLAIMS THIS FINAL AGREEMENT OF SETTLEMENT AND RELEASE OF ALL CLAIMS ("SETTLEMENT AND RELEASE AGREEMENT"), confirms the stipulated settlement entered into by and among THE CITY OF NATIONAL CITY (hereafter "CITY"), and RON BAKER CHEVROLET-ISUZU (hereafter "RELEASEE"). I. INTRODUCTION The settlement pertains to a claim by CITY against RELEASEE for a sales tax revenue deficiency for the third and fourth quarters of the calendar year 2001, comprised of an audit fee, penalty and interest (hereinafter the "CLAIM"). RELEASEE denies the allegations of the CLAIM and denies that it has any liability to CITY, and this settlement is not to be construed as an admission of liability by or on behalf of RELEASEE, by whom liability is expressly denied. II. DEFINITIONS As used in this SETTLEMENT AND RELEASE AGREEMENT, the following phrases and words have the following meanings: 2.1 "CLAIM" or "CLAIMS" shall mean and refer to any and all CLAIMS, demands, liabilities, losses, damages, errors, latent defects, patent defects, complaints, causes of action, intentional or negligent acts, intentional or negligent omissions, liability without fault, misrepresentations, material omissions, fraud, deceit, breaches of contract, breaches of warranties, economic damages, non -economic damages, compensation, property damage, loss of use, loss of services, personal injury, bodily injury, emotional distress, annoyance, inconvenience, attorney's fees, experts fees, repair costs, investigative costs, future professional fees, consultative expenses, relocation costs, diminution in value claims, additional insured endorsement issues, and any other actionable omissions, conduct or damage of any kind in nature whatsoever, whether in tort, contract or extra -contractual, actual or contingent, foreseen, known or unknown, past, present, or future claims, insofar as they arise from the DISPUTE. 2.2 The "DISPUTE" shall mean and refer to any and all CLAIMS which were raised, or which could have been raised, by CITY, in connection with its claim for the sales tax revenue deficiency for the third and fourth quarters of the calendar year 2001, including specifically the audit fee, penalty and interest. 2.3 "RELATED PERSONS AND ENTITIES" shall mean and refer to any and all past, present and future parent companies, divisions, subsidiaries, affiliates, related corporations and entities, members, stockholders, directors, officers, employees, attorneys, insurers, lenders, mortgage holders, predecessors, successors, partners, Settlement and Release Agreement Page 1 of 7 4827-5373-0048.1 joint venturers, legal representatives, agents, heirs, administrators, trusts, trustees, beneficiaries, creditors, and assigns. III. NO ADMISSIONS In making this SETTLEMENT AND RELEASE AGREEMENT, no party hereto is admitting the sufficiency of any CLAIMS, allegations, assertions, contentions, or positions of any other party, nor the sufficiency of any defense to any such CLAIMS, allegations, assertions, contentions or positions. The parties hereto desire to, resolve the CLAIMS in an amicable fashion and, pursuant to California Code of Civil Procedure section 877, et seq., the parties have entered into this SETTLEMENT AND RELEASE AGREEMENT in good faith and with the desire to forever settle between them the CLAIM and to execute a Release as set forth herein below. IV PAYMENT The consideration for and the total sum to be paid under this SETTLEMENT AND RELEASE AGREEMENT (hereinafter "THE SETTLEMENT SUM"), is the sum of Forty -Nine Thousand Dollars and 00/100s ($49,000.00), to be paid by or on behalf of RELEASEE to CITY. V. RELEASE NOW, THEREFORE, for the consideration, as set forth hereinafter, in full and complete settlement of all CLAIMS, the parties hereto agree as follows: 5.1 CITY for itself, its agents, employees, heirs, executors, administrators, successors, assigns, and all others who may take any interest in the matter herein released, do hereby release, acquit, and forever discharge RELEASEE, and all of its respective affiliated and/or subsidiary companies, together with any and all past and present employees, agents, officers, directors, shareholders, insurance carriers, attorneys, successors, assigns, and all person and entities acting by, through, under, or with any ofthem, from any and all CLAIMS, actions, causes of action, demands, rights, debts, agreements, promises, liabilities, losses, liens, including liens for medical, hospital or other healthcare treatment expenses, costs or obligations, damages, costs and expenses, whether known or unknown, of any nature or amount whatsoever, without limitation or exception, whether based on theories of contract, breach of contract, breach of mutual covenant of good faith and fair dealing, tort, violation of statute or any other theory of liability or declaration of rights whatsoever, which either may now have accrued or which may hereafter accrue, arising directly or indirectly from or based on any cause, event, transaction, act, omission, occurrence, condition or matter, of any nature whatsoever, which has occurred or may hereafter occur and which is in any manner or to any event related to any of the matters described in, covered by or relating to the CITY'S claim for sales tax revenue deficiency for the Settlement and Release Agreement Page 2 of 7 4827-5373-0048.1 third and fourth quarters of the calendar year 2001, including audit fee, penalties and interest. 5.2 The parties understand and agree that their releases extend to and include any and all damages, injuries and claims which they did not anticipate or know about or suspect to exist, and any and all damages, injuries and claims which may exist, and to any and all damages, injuries and claims which may develop in the future, by any cause whatsoever, and each party hereby expressly waives and relinquishes any and all such rights under any law or statute to the contrary. 5.3 All parties hereto expressly waive all rights under Section 1542 of the California Civil Code and any similar rights in any other state in the United States. Said Section 1542 of the California Civil Code provides as follows: "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." Each party hereto understands and acknowledges the significance and consequences of the specific waiver of Section 1542 of the California Civil Code and hereby assumes full responsibility for and releases all actions, causes of action, claims, demands, damages, compensation, costs, loss of service, expenses and attorneys fees, which may hereafter occur or which later become known to such party. VI. ASSUMPTION OF THE RISK The parties fully understand and declare that if the facts with respect to which this SETTLEMENT AND RELEASE AGREEMENT is executed are found to be different from the facts now believed to be true, each party assumes the risk of such possible difference in facts and hereby agrees that this SETTLEMENT AND RELEASE AGREEMENT shall be and remain in full force and effect notwithstanding such difference in facts. The parties represent and covenant that they are fully informed regarding all facts related to this SETTLEMENT AND RELEASE AGREEMENT, and will not seek to void, rescind, set aside or alter this SETTLEMENT AND RELEASE AGREEMENT based up on an assertion of mistake of fact or law. VII. FURTHER REPRESENTATIONS RELEASEE and CITY each make the following material representations with the understanding that each of these representations are true and accurate and that, without these Settlement and Release Agreement Page 3 of 7 4827-5373-0048.1 representations, none of them would enter into this SETTLEMENT AND RELEASE AGREEMENT: 7.1 CITY and RELEASEE have not sold, transferred, conveyed, assigned, hypothecated and/or subrogated any of their rights, CLAIMS or causes of action released herein. 7.2 The parties hereto each acknowledge, declare and represent that they are accepting and agreeing to this SETTLEMENT AND RELEASE AGREEMENT following and as a result of having received full legal advice from their respective attorneys regarding their rights and liabilities and the terms and provisions of this SETTLEMENT AND RELEASE AGREEMENT, and understand and knowingly and wilfully accept all of said terms and provisions. VIII. NO FURTHER CLAIMS 8.1 The parties to this SETTLEMENT AND RELEASE AGREEMENT acknowledge and agree that the consideration set forth herein is accepted in full payment and satisfaction of any and all losses, expenses, benefits paid, damages, costs of litigation, interest, liens, attorney's fees or other entitlements to compensation arising out of CLAIMS with respect to the injuries and/or damages alleged to have been suffered. In the event that any such further loss, expense, damage, cost of litigation, or other entitlement to compensation shall occur related to said CLAIMS as a result of any alleged acts or omissions of RELEASEE and/or the CITY, it shall be deemed to have been fully compensated by the payment of the settlement sum and other consideration referred to in this SETTLEMENT AND RELEASE AGREEMENT. 8.2 This SETTLEMENT AND RELEASE AGREEMENT shall operate to bar any claims for subrogation by any insurance carrier having paid claims to or on behalf of CITY. IX. GENERAL PROVISIONS 9.1 The parties hereto each acknowledge and agree that each ofthem shall bear their own costs, expenses and attorneys' fees arising out of, and/or connected with CLAIM and/or the negotiation, drafting and execution of this SETTLEMENT AND RELEASE AGREEMENT, and all matters arising out of or connected therewith, except that, in the event any action is brought by any party arising out of, related to or to enforce this SETTLEMENT AND RELEASE AGREEMENT, the prevailing party in such action shall be entitled to reasonable attorneys' fees, expert fees, costs and expenses, in addition to all other legal and equitable relief to which that party or those parties may be entitled. Settlement and Release Agreement Page 4 of 7 4827-5373-0048.1 9.2 This SETTLEMENT AND RELEASE AGREEMENT is the product of negotiation and preparation by and among the parties hereto and their respective attorneys. Accordingly, the parties each acknowledge and agree that neither this SETTLEMENT AND RELEASE AGREEMENT nor any provision thereof, shall be deemed to have been prepared or drafted by one party or another, or its attorneys, and shall not be construed more strongly against any party. 9.3 This SETTLEMENT AND RELEASE AGREEMENT shall be and is hereby binding upon and shall inure to the benefit of the parties hereto and their respective RELATED PERSONS AND ENTITIES. 9.4 This SETTLEMENT AND RELEASE AGREEMENT contains the entire agreement and understanding among the parties hereto, with respect to the matters set forth herein, and is intended to be, and is, a final integration thereof. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the parties hereto relating to the terms and conditions of this SETTLEMENT AND RELEASE AGREEMENT which are not fully expressed herein. This agreement shall be interpreted according to its own terms, and as a whole, according to its fair meaning and intent, and, unless a word is expressly defined, it has been used in its ordinary sense. 9.5 The parties represent and warrant, for the benefit of each of the other parties, that they are the owner of all CLAIMS released herein and that such CLAIMS have not been assigned, transferred, or hypothecated, whether voluntarily or involuntarily, by subrogation, operation of law or otherwise, to any person or entity. Such representation and warranty shall survive full execution and performance of this SETTLEMENT AND RELEASE AGREEMENT. 9.6 This SETTLEMENT AND RELEASE AGREEMENT shall be governed by, construed and enforced in accordance with the laws of the State of California in effect at the time of its execution. 9.7 In the event that any condition or covenant herein is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this agreement and shall in no way affect any other covenant or condition contained herein. If such condition, covenant, or other provision shall be deemed invalid due to scope or breadth, such provision shall be valid to the extent of the scope or breadth permitted by law. 9.8 No breach of any provision hereof can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. Settlement and Release Agreement Page 5 of 7 4827-5373-0048.1 9.9 This SETTLEMENT AND RELEASE AGREEMENT may be amended or modified only by a written agreement executed by the parties in interest at the time of the amendment or modification. 9.10 This SETTLEMENT AND RELEASE AGREEMENT may be executed in counterpart and, when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with the other signed counterparts shall constitute one agreement which shall be binding upon and effective as to all parties. A copy of the fully executed agreement shall be deemed to have the same force and effect as the original. Counsel for RELEASEE shall maintain the original thereof. 9.11 The undersigned further declare and represent that no promise, inducement or agreement not herein expressed has been made to the undersigned and the SETTLEMENT AND RELEASE AGREEMENT contains the entire agreement between the parties hereto, and that the terms of this SETTLEMENT AND RELEASE AGREEMENT are contractual and not a mere recital. This SETTLEMENT AND RELEASE AGREEMENT is freely and voluntarily entered into. We hereby certify that we have read all of the SETTLEMENT AND RELEASE AGREEMENT and fully understand the same. IN WITNESS WHEREOF, we have executed this SETTLEMENT AND RELEASE AGREEMENT as follows: Dated: April 30, 2004 Dated: Settlement and Release Agreement Page 6 of 7 CITY OF NATIONAL CITY By: Its: C=J6-wa � M,Er RON BAKER. CHEVROLET-ISUZU By: Its: 4827-5373-0048.1 APPROVED AS TO FORM AND CONTENT: Dated: Dated: Settlement and Release Agreement Page 7 of 7 By: Attorney for CITY OF NATIO LEWIS-BRISBOIS BISGAARD & SMITH LLP By: Charles S. Haughey, Jr. Attorney for RON BAKER CHEVROLET- ISUZU 4827-5373-0048.1 9.9 This SETTLEMENT AND RELEASE AGREEMENT may be amended or modified only by a written agreement executed by the parties in interest at the time of the amendment or modification. 9.10 This SETTLEMENT AND RELEASE AGREEMENT may be executed in counterpart and, when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with the other signed counterparts shall constitute one agreement which shall be binding upon and effective as to all parties. A copy of the fully executed agreement shall be deemed to have the same force and effect as the original. Counsel for RELEASEE shall maintain the original thereof. 9.11 The . undersigned further declare and represent that no promise, inducement or agreement not herein expressed has been made to the undersigned and the SETTLEMENT AND RELEASE AGREEMENT contains the entire agreement between the parties hereto, and that the terms of this SETTLEMENT AND RELEASE AGREEMENT are contractual and not a mere recital. This S ETTLEMENT AND RELEASE AGREEMENT is freely and voluntarily entered into. We hereby certify that we have read all of the SETTLEMENT AND RELEASE AGREEMENT and fully understand the same. IN WITNESS WHEREOF, we have executed this SETTLEMENT AND RELEASE AGREEMENT as follows: Dated: Dated: April 30, 2004 Settlement and Release Agreement Page6of7 CITY OF NATIONAL CITY By: Its: RON BAKER CHEVROLET-ISUZU Bill Cumming By: Its: Vice President/ ,-.-ref Mgr_ 4827-5373-0048.1 APPROVED AS TO FORM AND CONTENT: Dated: May 10, 2004 Dated: S 6 d `' Settlement and Release Agreement Page 7 of 7 golf Hrckt, Esq. ttomey for CITY OF NATIONACITY SBOIS BISG RD & SMITHLLP Charles S. • ey, , Attorney fc ' 4N B • KER CHEVROLET- ISUZU 4827-5373-0048.1