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HomeMy WebLinkAboutNEIGHBORS SUPPORTING THE RECALL OF JUAN VILLEGASINSURANCE NOT REQUIRED WORK MAY PrrR(OCEED �'Tc C�ff Fi 1��IL O'.GAw) SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS N-2019-196 This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into by and between Neighbors Supporting the Recall of Juan Villegas, a California unincorporated association (hereinafter "Neighbors"), and City of Santa Ana ("City"), a Califomia municipal corporation (collectively referred to hereafter "the parties"). WITNESSETH: WHEREAS, Neighbors filed a complaint for Writ of Mandate in Orange County Superior Court, Case No. 30-2019-01083264-CU-WM-CJC ("Matter"). Neighbors named as Defendants Norma Mitre ("Mitre") in her official capacity as Acting Clerk of Council and Daisy Gomez ("Gomez"), in her official capacity as Clerk of Council. Mitre and Gomez are employees of the City of Santa Ana ("City") and since the complaint alleges facts regarding Mitre and Gomez acting in their official capacity, City will be responsible for the payment of any award of attorney's fees or costs in this Matter. WHEREAS, on August 21, 2019, Neighbors' Writ of Mandate was granted in part. On August 28, 2019, Judgment was entered. WHEREAS, Neighbors filed a Memorandum of Costs in the amount of $531.60 and a Motion for Attorney's Fees in the amount of$55,200, The Motion for Attorney's Fees was brought on the grounds that, the Writ of Mandate secured a public benefit pursuant to California Code of Civil Procedure Section 1021.5. City disputes that Neighbors acted for the public benefit. However, even if a Court determined that Neighbors acted for the public benefit, City disputes that Neighbors would be entitled to the full amount of attorney's fees requested in its Motion for Attorney's Fees. WHEREAS, City and Neighbors have agreed to compromise Neighbors' claims for attorney's fees and costs associated with this Matter. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, and to avoid unnecessary fiuther hearings and proceedings, it is hereby agreed by and between the parties as follows: FIRST: This Agreement and compliance with this Agreement shall not be construed as an admission by City of any liability whatsoever and City specifically disclaims any liability to Neighbors or any other person for attorney's fee or costs associated with this Matter. Page 1 of 5 SECOND: (a) The parties agree to waive their right to a hearing on Neighbors' Motion for Attorney's fees currently scheduled for December 2, 2019, at 2:00 p.m, in Orange County Superior Court, Central Justice Center, Department C15. (b) City agrees to pay to Neighbors' attorney of record, Mark S. Rosen, thirty-nine thousand dollars and zero cents ($39,000.00) made payable to the "Mark S. Rosen Client Trust Account" in full and complete satisfaction of Neighbors' claim for attorney's fees and costs in this Matter. In consideration of such promise and the other rights conferred by this Agreement, Neighbors agrees to release, remise, and forever discharge City, Mitre and Gomez, from any and all claims for attorney's fees or costs in this Matter, which may be due to Neighbors by reason of such claim/complaint. Neighbors agree to provide all necessary paperwork including a signed copy of this Settlement Agreement, a W-9, and any other paperwork necessary to process payment by Thursday, September 26, 2019 at 10:00 a.m., failure to do so will result in an extension of City's time to pay the settlement amount equal to the delay in submitting the paperwork. (c) The City agrees to pay in full the amount listed in subsection (b) above on or before Monday, September 30, 2019 by 11:59 p.m. to Neighbors' attorney Mark S. Rosen, subject to a potential extension if there is a delay on the part of Neighbors in submitting the necessary paperwork. (d) Neighbors agree to provide City's attorney with a signed Notice of Withdrawal of its Motion for Attorney's fees an September 30, 2019 by noon. City agrees not to file said Notice until payment has been made to Neighbors' attorney pursuant to subsection (b) of this Section of the Agreement. THIRD: Neighbors represent that it has not filed any complaints, claims, or actions against City as a result of the incident set forth in the complaint including any of its officers, agents, directors, supervisors, employees, or representatives of City with any state, federal, or local agency or court and that it will not do so at any time hereafter as it relates to this action and that if any agency or court assumes jurisdiction of any complaint, claim, or action against City, its employees, volunteers, officials, or agents on Neighbors' behalf, Neighbors will direct that agency or court to withdraw and dismiss with prejudice the matter. FO Wr : The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived, Civil Cocle Section 1542 provides as follows; "A general release does not extend to claims which the creditor does not Imo%s or suspect to exist in his or her favor at the tints of executing the release, which if known by hinr or her must have materially affected his or her settlement Page, 2of5 with the debtor," FIFTH: Notwithstanding the provisions of Civil Code section 1542, each party hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, Neighbors, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with each other party from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "elaim" or "claims") which each releasing party at any time heretofore had or claimed to have or which each releasing party at any time hereafter may have or claim to have, incidental to the incident(s) which form the basis of the complaint. SIXTH: Each person signing below represents that he/she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to them and that they understand all the provisions of this Agreement, that they understand that in agreeing to this document they are releasing each party hereby from any and all claims they may have against each party released, that they voluntarily agree to all the terms set forth in this Agreement, that they knowingly and willingly intend to be legally bound by the same, that they were given the opportunity to consider the terms of this Agreement and discussed them with legal counsel. Each party hereby warrants that they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. SEVENTH: The Parties hereto represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by any o fihe parties or by any of the parties' agents, attorneys, or representatives with regard to the subject Matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. EIGHTH: This Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, predecessors, successors, and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators, representatives, executors, predecessors, successors, and assigns. NINTH: Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of this Agreement. TENTH: This Agreement sets forth the entire agreement between the parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject Matter hereof. Page 3 of 5 N-2019-196 ELEVENTH: This Agreement shall be interpreted in accordance with the plain meaning of its tennis and not strictly for or against any of the parties hereto. TWELFTH: This Agreement may be executed in counterparts, secured via facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. Dated: l' 2 %' 2019 NEIGHBORS SUPPORTING THE RECALL OF JUAN VILLEGAS �' lJU4 01�4�rl Ra+�CF Llrrl C-n (Name) TR'Pa su1L-ere- (Title) Dated: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California By: Kristine ]ridge, City 1 ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution �� �I� and laws of the State of California Datcd: By: Daisy Go , Clerk of& Council [Signatures continue on the next page] Page 4 of 5 APPROVED AS TO FORM: Dated: Dated: 912- 1q SONIA R. CARVALHO CITY ATTORNEY A. R� Laura A. Rossini Senior Assistant City Attorney Attorneys for City of Santa Ana, Norma Mitre, and Daisy Gomez LAW OFFICES ROSEN osen, Esq. Atto ey for Neighbors Supporting the Recall of Juan Villegas Page 5 of 5