HomeMy WebLinkAboutC-1751 / ' 6,0 Gi
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is made and entered
into as of this t Wday of February, 2001, between the following ("Parties"):City of
Arcadia and the Arcadia Redevelopment Agency ( the "City"), on the one hand, and
Kamine, Steiner & Ungerer, and Bernard Kamine (collectively, the "Kamine Firm"),
on the other hand.
1. Background Facts. This Agreeement is entered into with reference to the
following facts:
(a) The City alleges that it incurred damages arising out of certain
legal services provided to the City by the Kamine Firm's representation of the City in
an underlying action entitled Sully-Miller v. City of Arcadia, Los Angeles Superior
Court Case No. BC 139308 (the "Underlying Action".) No complaint has been filed by
the City against the Kamine Firm; the dispute between the City and the Kamine Firm
will hereinafter be referred to as the "Civil Dispute."
(b) The Kamine Firm has denied and continues to deny each and every
material allegation by the City in the Civil Dispute.
(c) The Kamine Firm claims that the City is indebted to it for certain
legal services and costs, including interest, provided by the Kamine Firm to and on
behalf of the City.
Page 1 of 14
,
(d) The Parties desire, and hereby agree, to settle the disputes referred
to in subparagraph (a) and (c) hereof, in accordance with the terms, covenants and
conditions hereafter set forth.
2. Payment of Settlement Sum.
(a) The Kamine-Firm shall deliver to the City's counsel of record a check
payable to "The City of Arcadia", tax identification number 95-6000667, in the amount
of$385,000 within thirty (30) days after the execution of this Agreement by all Parties.
Said sum of$385,000 is paid in full settlement of all claims by the City.
(b) Within ten days of receipt of payment by the City of the $385,000
settlement check, the City shall deliver to the Kamine firm's counsel of record a check
payable to "Kamine, Steiner & Ungerer," in the amount of$125,000. Said sum of
$125,000 is paid in settlement of all claims by the Kamine Firm.
3. Mutual Release.. Except for the executory provisions of this Agreement,
the Parties hereby release all claims against one another as follows:
(a) Release By The City. The City, on behalf of itself, and all of its
past and present heirs, assigns, agents, servants, attorneys, insurers, devisees,
executors, trustees, administrators, officers, directors, employees, partners,
shareholders, subsidiary, parent and affiliated corporations and entities, representatives,
predecessors and successors, forever releases and discharges the Kamine Firm, and
each of the individuals herein collectively described as the "Kamine Firm," and their
Page 2 of 14
heirs, assigns, devisees, executors, trustees, administrators, successors, employees,
partners, shareholders, predecessors, agents,.representatives, insurers, and attorneys,
from any and all claims, actions, or causes of action, known or unknown, anticipated
or unanticipated, suspected or unsuspected, of any kind, of any nature and at any time,
which the City has or may hold in the future, including, but not limited to, that which :
(i) were asserted in, could have been asserted in, or are related in any way to, or arise
from the Civil Dispute; or (ii) arise from or are related to any legal services ever
provided by the Kamine Firm to the City for any purposes whatsoever.
(b) Release By The Kamine Firm. The Kamine Finn, and each of the
individuals herein collectively described as the "Kamine Firm," on behalf of themselves
and all of their past and present heirs, assigns, agents, servants, attorneys, insurers,
devisees, executors, trustees, administrators, employees, partners, shareholders,
representatives, predecessors and successors, forever release and discharge the City,
Arcadia Redevelopment Agency, and their successors, heirs, devisees, executors,
trustees, administrators, predecessors, employees, partners, representatives, insurers,
assigns and attorneys, from any and all claims, actions, or causes of action, known or
unknown, anticipated or unanticipated, suspected or unsuspected, of any kind, of any
nature and at any time, which such individuals or the Kamine Firm has or may hold in
the future; including, but not limited to, that which : (i) were asserted in, could have
been asserted in, or are related in any way to, or arise from the Civil Dispute; or (ii)
Page 3 of 14
•
•
arise from or are related to any legal services ever provided by the Kamine Firm to the
City for any purposes whatsoever.
(c) The Parties understand and expressly agree that the foregoing
releases extend to claims of every nature and kind, known or unknown, suspected or
unsuspected, past or present, and that any and all rights granted to the Parties under
Section 1542 of the California Civil Code or any analogous or similar state or federal
law or regulation, are hereby expressly waived. Section 1542 of the California Civil
Code reads 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.
4. Legal Advice.
The Parties have received independent legal advice with respect to the
advisability of entering into this Agreement, including the waiver of Section 1542 and
related law.described above. The Parties have made such investigation of the facts
pertaining to this Agreement and of all other matters pertaining hereto as they deem
necessary.
Page 4 of 14
5. No Assignment. -
The Parties, and each of them, represent and warrant that they have not
heretofore assigned or transferred, or purported to assign or transfer, voluntarily or by
operation of law, to any other person or entity any claim or other matter herein
released. The Parties agree to completely indemnify any other Party or Parties for the
consequences of any breach of the provisions of this paragraph, whether or not
litigation is commenced, including but not limited to attorneys' fees, the costs of
defense, costs of litigation, any settlement, any judgment or other award which may be
awarded, and any and all appeals until final disposition of the matter.
6. Settlement Not An Admission.
It is understood by the Parties that this Agreement is a compromise and a
settlement of disputed claims that each has against the other and is entered into based
on economic considerations relating to the cost of continued litigation of this matter or
other matters released herein, and in no way constitutes an admission by the Parties of
any fault whatsoever or any liability whatsoever in connection with any matter or thing,
which fault and liability the Parties specifically deny.
7. Representations And Warranties.
The Parties to this Agreement represent and warrant to each and every other
Party as follows:
Page 5 of 14
(a) That they have not sold, conveyed, assigned, encumbered or in any
way transferred or purported to sell, convey, assign, encumber, subrogate or transfer,
either voluntarily or by operation of law, any claims or matters released by this
Agreement;
• (b) The signatories to this Agreement have full power, right and
authority to execute this Agreement on behalf of the Parties hereto and to provide the
releases and waivers set forth in paragraph 3, above;
(c) That no promise, inducement or agreement not contained in this
Agreement has been made to any of the Parties, and that each of the Parties has entered
into this Agreement without reliance upon any statement or representation of any other
Party hereto or any agent for said Party or Parties to this Agreement;
(d) The Parties expressly accept and assume the risk that the facts with
respect to which this Agreement is executed may be found hereafter to be different
from the facts now believed to be true, and acknowledge and agree that this Agreement
shall be and remain effective not withstanding such difference in facts, if any;
(e) The Parties have read and understood this Agreement, have sought
independent legal advice regarding the same, and have entered into this Agreement
voluntarily and free of duress, undue influence or coercion;
Page 6 of 14 •
(f) There are no representations, promises or warranties other than
those set forth in this Agreement, and any prior representations, promises or warranties
are deemed null, void and non-actionable.
8. Confidentiality. The Parties specifically understand and agree that part of
the bargained for consideration and an integral term of this Agreement is that the terms
of the settlement entered into between the City, on the one hand, and the Kamine Firm,
on the other hand, are confidential to the extent permitted by law as to all third persons
and entities.
(a) The parties acknowledge that Government Code Section 6250
requires the City to allow inspection and review of documents kept in the course of
ordinary business. However, notwithstanding Government Code Section 6250, the City
agrees that its staff and council members will use reasonable care to insure its staff,
council members, attorneys and agents will not issue any press releases, of any kind,
concerning the settlement of the Civil Dispute. The City, its staff, council members,
and attorneys further.agree that no staff or City Council members of the City will'
initiate any contact with the press, media or any other third party, or otherwise initiate
statements to the public concerning this Agreement. The City will refer any and all
questions concerning the Civil Dispute and this Agreement to the documents on file
with the City.
Page 7 of 14
(b) Except as set forth in paragraph "8(a)" above, the Parties, in
furtherance of the understanding set forth above, specifically represent and warrant to
each and every other party to this Agreement that they will not, individually or
collectively, disclose or cause to be disclosed to any third person or entity the terms
and content of this Agreement, or any of the information disclosed to them by the
opposing side in the negotiations leading to this Agreement, without first notifying each
and every other party to this Agreement. In the event that any third person attempts to
compel the disclosure of terms of this Agreement, either informally or formally through
the process of the Superior Courts, or any other court of competent jurisdiction, the
party from whom disclosure is sought agrees to give notice within 72 hours.
(c) Except as set forth in paragraph "8(a)" above, the Parties further
agree that they will not cause any press releases whatsoever to be made announcing the
settlement contained herein or any of the terms set forth in the Agreement, or cause the
terms of the Agreement or the fact that a settlement has been entered into, to be
delivered to, or published in, any newspaper, magazine, periodical, or other type of
.publication, or to be disseminated to any source of news media, including but not
limited to television and radio stations.
(d) Notwithstanding the provisions and requirements of the
immediately preceding sub-paragraphs (a) through (c), any or all of the information
made confidential by sub-paragraphs (a) through (c) may be disclosed by any party
Page 8 of 14
•
(including any of their counsel): (i) to any insurer for purposes of obtaining insurance;
(ii) in any legal action to approve, interpret or enforce this Agreement; (iii) by order of
a court of competent jurisdiction; (iv) to any lenders for purposes of obtaining
financing; (v) to any accountants or taxing authorities for the purpose of tax planning
and preparation; and (vi) to any party making a public record request demand for
release of documents pursuant to Government Code section 6250.
9. Notices.
Written notice required under this Agreement shall be addressed as follows:
As to the Kamine Firm:
•
Bernard Kamine, Esq.
Kamine, Steiner & Ungerer
350 S. Figueroa Street, Suite 250
Los Angeles, CA 9071
As to the City:
Stephen P. Deitsch
City Attorney
City of Arcadia
240 W. Huntington Drive
P.O. Box 60021
Arcadia, CA 91066-0060
10. Indemnification.
The Parties hereby agree to defend, indemnify, protect, save and hold harmless
each other from all claims, causes of action, debts, obligations, losses, damages,
•
Page 9 of 14
liabilities, costs, demands or judgments arising out of a breach or alleged breach by a
party of any of its covenants under this Agreement.
11. Attorneys' Fees.
Should any action be brought by either party on any claim released and
discharged hereby or in any action to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover, in addition to any other relief, reasonable
attorneys' fees, costs and expenses of litigation.
12. Entire Agreement; Modification; Waiver.
This.Agreement constitutes an integration of the entire understanding and
agreement of the Parties with respect to the matters referred to in this Agreement. Any
representation, promise or condition, whether written or oral, between the Parties, with
respect to the matters referred to in this Agreement, which is not specifically
incorporated in this agreement, shall not be binding upon any of the Parties hereto and
the Parties acknowledge that they have not relied, in entering into this Agreement, upon
any representations, promises or conditions not specifically set forth in this Agreement.
No prior oral or written understanding, covenant,,representation or agreement between
the Parties, with respect to the matters referred to in this Agreement, shall survive the
execution of this Agreement. Each party hereto assumes the risk of any
misrepresentation, concealment or mistake and if any party should subsequently
discover that any fact relied upon in entering into this Agreement was untrue, or that a
Page 10 of 14
fact was concealed from it, or that its understanding of the facts or law was incorrect, it
shall not be entitled to set aside this agreement by reason thereof. No supplement,
modification, or amendment to this Agreement, shall be binding unless executed in
writing by all of the Parties. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the Parties making the waiver.
13. Construction.
This Agreement shall be construed according to its fair meaning and as if
prepared by all Parties hereto, such that no provision shall be construed against any
Party as a result of its participation in drafting this Agreement. The headings used in
this Agreement are for convenience only and are not to be used to interpret the meaning
of any of the provisions of this Agreement.
14. Further Acts.
The Parties agree to execute or cause their counsel to execute any additional
documents and take any further action which may be reasonably required in order to
consummate this Agreement or otherwise fulfill the obligations of the Parties
thereunder.
15. Expenses.
Page 11 of 14
Each Party will bear its own expenses (including attorneys' fees) incurred in
connection with the Civil Action, the drafting of this Agreement, and any other items
arising out of or related to this matter.
16. Choice of Law.
This Agreement shall be construed and enforced in accordance with the laws of
the State of California.
17. Forum.
In the event of litigation between the Parties arising from, relating to, or
involving in any way any aspect of this Agreement, such action will be prosecuted in a
state court of competent jurisdiction located in Los Angeles County, California.
18: Burden and Benefit.
The Parties understand and agree that this Agreement shall bind and benefit their
heirs, employees, owners, partners, officers, subsidiaries, affiliates, successors,
predecessors, agents, witnesses, attorneys, representatives, and assigns.
19. Counterparts.
This Agreement may be executed in counterparts, and when each party has
signed and delivered at least one such counterpart, each counterpart shall be deemed an
original and all counterparts taken together shall constitute one and the same
agreement, which shall be binding and effective as to all Parties.
Page 12 of 14
20. Certification And Agreement.
The Parties certify that they have read the foregoing Agreement in its entirety,
including Civil Code Section 1542, referred to above, and that they fully
understand the same, and that they agree to be bound by all of the terms and conditions
set forth herein:
By: Ga ,s ovaci•(
Mayor of City of.Arcadia and Chairman of
Arcadia Redevelopment Agency
E, STEIN r Bail U► ERER
Arf fr
) if J./ X- .‘ I
ALI(iM ...0,14
. By: S a -. K. ►,'ne (j
Its: r/.1 LlikiA.
rAirlff ,
"•'/Afffif-Ir I
, ig. , _ g., mit. •
f,, - rsr.r. amine
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 13 of 14.
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
APPROVED AS TO FORM:
GARRETT & TULLY
A Professional Corporation
•
By:
Chau T. Do
Kevin S. Lacey
Attorne . e a ∎ine, Steiner & Ungerer
POLL-t/ VID : & FISHER
•
By:
' ar� .'is.
ttorney: 'or City of Arcadia
BEST BEST & KRIEGER LLP
By:
Stephen P. Deitsch
City Attorney for City of Arcadia
Page 14 of 14