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HomeMy WebLinkAboutCADENCE CAPITAL INVESTMENTSN-2022-148 �J INSURANCE NOT REQUIRED WORK MAY PROCEED r' CLERK OF COUNCIL r DATE: SETTLEMENT AGREEMENT ' Gh C (Kerr AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") is made and entered into by and between CADENCE CAPITAL INVESTMENTS, LLC, a Delaware limited liability company ("Plaintiff'), and CITY OF SANTA ANA ("Defendant"). WHEREAS, Plaintiff filed an action against Defendant in the Superior Court of the State California, County of Orange, Central Justice Center District known as CADENCE CAPITAL INVESTMENTS. LLC v. CITY OF SANTA ANA et aL, Case No. 30-2021-01180277-CU-BC- CJC (the "Action"). WHEREAS, Plaintiff and Defendant (collectively, the "Parties"), desire to settle fully and finally all differences between them, arising out of or relating to the Action and the claims asserted therein. 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 litigation, it is hereby agreed by and between the Parties as follows: 1. This Agreement and compliance with this Agreement shall not be construed as an admission by Defendant of any liability whatsoever, or as an admission by Defendant of any violation of the rights of Plaintiff or any person, violation of any order, law, statute, duty, or contract whatsoever against Plaintiff or any person. Defendant specifically disclaims any liability to Plaintiff or any other person for any alleged violation of the rights of Plaintiff or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of any employees or agents of Defendant. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. 2. Each party will exchange a fully signed executed copy or original of this Agreement. Defendant cannot proceed with processing payment without a fully executed copy of the Agreement from Plaintiff. 3. Following receipt of, or in exchange for, an executed copy of a Request for Dismissal form from Plaintiff dismissing this Action with prejudice, Defendant will make available a check in the amount of Twenty Seven Thousand Two Hundred and Eighty -One Dollars and Twenty -Five cents ($27,281.25) made payable "CADENCE CAPITAL INVESTMENTS, LLC AND MICHAEL J. RADFORD, ESQ. ". Defendant will file the Request for Dismissal following confirmed receipt of the foregoing check by Plaintiffs counsel. This monetary amount represents a full and complete settlement of Plaintiffs claims for all damages alleged in the Action. 4. Plaintiff agrees that this Agreement constitutes full and complete settlement of all claims made against Defendant in this Action. Plaintiff will not seek any further compensation for any other claimed damages, costs, or attorney's fees in connection with the matters encompassed in this Agreement. Page t of 5. Plaintiff acknowledges and agrees that Defendant has made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that it and it alone is liable for all taxes, if any, which are owed by it- on any amount received hereunder including interest and penalties. Plaintiff will hold Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiff on amounts owed by it. G, Plaintiff represents that, with the exception of this Action and the government tort claim associated therewith and submitted to Defendant, it has not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of Defendant 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 Defendant on Plaintiff's behalf, Plaintiff will direct that agency or court to withdraw and dismiss the matter with prejudice, 7. The Parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code Section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 8. 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, employees, 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 "claim" 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, arising out of or relating to the Action or the claims asserted therein. 9. Each person signing below represents that he/she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and filly explained to them and that they understand every provision 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. Page 2 of 4 10. Plaintiff hereto represents and acknowledges that in executing this Agreement, it does not rely and has not relied upon any representation or statement made by Defendant or by any of the Defendant's 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. 11. 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. 12. 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. 13. 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. 14. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the Parties hereto. 15. This Agreement may be executed in counterparts, secured via e-mail, 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. PARTIES: Plainti Dated: Dave Runberg, CFO �— CADENCE CAPITAL INVESTMENTS, LLC Plaintiff Defendant 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 rr By: tar Kristine Ridge, City Manager Page 3 of 4 ATTEST: 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 Dated: 1 0<' 020 .P� ay: Daisy Gomez, Clerk of the Cow, " APPROVED AS TO FORM: LAW OFFICES OF MICHAEL J. RADFORD Dated: 5/23/2022 Michael Radford Attorneys for Plaintiff CADENCE CAPITAL INVESTMENTS, LLC SONIA R. CARVALHO CITY ATTORNEY 5/23/2022� Sandra M. Schwarzmann Senior Assistant City Attorney Attorneys for Defendant City of Santa Ana Page 4 of 4