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HomeMy WebLinkAbout2017 CON (Settlement Agreement) Chris Shilling and San Diegans for Open GovernmentSETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is made by and among the following: Chris Shilling and San Diegans for Open Government ("Plaintiffs"), on the one hand, and the City of National City, a municipal corporation ("City"), on the other hand (collectively, "the Parties"). RECITALS 1. The Parties are litigants to a certain civil action known as Chris Shilling et al. v. City ofNational City, San Diego County Superior Court case no. 37-2017-00016618-CU- WM- CTL ("Civil Action"), where allegations regarding the Ralph M. Brown Act and the California Public Records Act are more particularly described. 2. The Parties have already informally resolved their substantive dispute and desire to settle the remaining issue of determining the amount of attorneys' fees and costs to which Plaintiffs would be entitled in order to avoid the expense and delay of litigation and without admission of liability. FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is now acknowledged, the Parties agree as follows: A. City shall cause payment in the amount of $22,500.00 to be made to "Briggs Law Corporation Trust Account" and delivered to Briggs Law Corporation not more than 20 days after this Agreement has been executed by the Parties. B. Plaintiffs shall accept this amount in full satisfaction of any and all attorney fees and costs to which they would be entitled in the Civil Action, thereby releasing City, and its officers, officials, agents, employees, and volunteers from any further claim for attorneys' fees or costs and also from all claims, demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way arising out of the Civil Action. C. Not more than 10 days after receipt of the payment described in Paragraph "A", Plaintiffs shall cause the Civil Action to be dismissed with prejudice and, upon receipt of a file - stamped copy from the court, provide a copy to City through its attorney. D. Any tax obligation arising from the payments made to Plaintiffs under the Agreement will be the sole responsibility of the Plaintiffs. Plaintiffs agree to, and will, indemnify, defend and hold the City harmless from any federal, state and local tax liability, including taxes, interest, penalties or the like, and required withholdings, which may be, or is, asserted against or imposed upon the City by any taxing authority based upon any failure to withhold any amount from the payment for tax purposes and shall pay to the City upon demand all reasonable attorney's fees and costs incurred by the City related thereto. E. It is expressly understood, acknowledged, and agreed to by the Parties that, by executing this Agreement, no party admits, expressly or impliedly, any fact or liability of any type or nature alleged in the Civil Action, whether or not referred to herein, or the sufficiency of any claims, allegations, assertions, or positions of any of the Parties arising out of the Civil Action. By entering into this Agreement, no party admits that the claims of the other are valid or more meritorious and all Parties agree that the terms of this Agreement shall never be used, referred to, or considered as an admission of liability of such claims. This Agreement is entered into solely by way of compromise and settlement only. F. This Agreement may be executed in counterparts and transmitted to the other Parties by facsimile or other electronic means. Each executed counterpart shall have the force and effect of a signed original, regardless of the manner of transmission to the other Parties. Photographic duplications of executed counterparts may be used, in the absence of any genuine issue as to their authenticity, in lieu of originals for any purpose. G. This Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, legatees, devisees, beneficiaries, administrators, executors, successors, assigns, officers, directors, shareholders, employees, agents, servants, insurers, and legal representatives. H. Plaintiffs acknowledge that: (1) this Agreement is the result of extensive good faith negotiations between the Parties through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by Plaintiffs; and (3) any statute or rule of construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. I. If any party breaches any obligation under this Agreement, the non -breaching party shall be entitled to its reasonable expenses, attorneys' fees and costs incurred in any action taken, with or without litigation, to enforce the terms of this Agreement, or to remedy or compensate for such breach. J. In the event that any one or more of the provisions of this Agreement shall be declared invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby. K. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless it is in writing and signed by the Party against which the enforcement of such modification, waiver, amendment, discharge, or change is or may be sought. Settlement & Release Agreement Page 2 of 3 Schilling v. National City L. Each of the Parties represents that in executing this Agreement each relies solely upon their own judgment, belief, and knowledge, and upon the advice and recommendations of their rights and claims. Each of the Parties further represents that they have entered into this Agreement voluntarily and without duress or coercion. Each of the Parties further represents that they have carefully read this Agreement and each know the contents thereof, and that they sign the same based on such information. M. This Agreement shall take effect immediately upon its having been signed by the Parties. N. This Agreement shall be construed in accordance with the laws of the State of California. We have read and accept this Agreement in its entirety. Date: September 15, 2017 Date: Sept. 19, 2017 Date: Sept. 18, 2017 Date: Sept. 18, 2017 &tUt3i4,/ Chris Shilling Richard Lawrence, Director San Diegans for Open Government Leslie Deese, City Manager City of National City APPROVED AS TO FORM: Morris - es City Attorney Settlement & Release Agreement Page 3 of 3 Schilling v. National City Mayor Ron Morrison Council Members Albert Mendivil Alejandra Sotelo-Solis Mona Rios Jerry Cano 1 7/// CALIFORNI/l"> NATIONAL c y INCORP ArW Office of the City Attorney MEMORANDUM TO: City Clerk FROM: Ginny Miller, Legal Assi City Attorney Angil P. Morris -Jones Senior Assistant City Attorney Nicole Pedone Deputy City Attorney Roberto M. Contreras DATE: September 26, 2017 SUBJECT: Settlement and Release ::reement Chris Shilling and San Diegans for Open Government v. City of National City SDSC Case No. 37-2017-00016618-CU-WM-CTL Attached for your files, is a fully -executed original of the Settlement and Release Agreement in the matter of Shilling, et al. v. City of National City. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4397 Tel.: (619) 336-4220 Fax: (619) 336-4327 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk CHRIS SHILLING AND SAN DIEGANS FOR OPEN GOVERNEMENT Settlement and Release Agreement Brown Act Ginny Miller (City Attorney) forwarded a Fully Executed Original Copy of Agreement to Chris Shilling and San Diegans for Open Government.