HomeMy WebLinkAboutC-4942 - Settlement Agreement and General ReleaseSETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement") is entered into between
Andrew Meyer ( "Meyer "), Paul Centrone ( "Centrone "), and Barry Saywitz Properties One, L.P.
( "Saywitz ") (Meyer, Centrone, and Saywitz may be collectively referred to as "Appellants "), on
the one hand, and the City of Newport Beach, its past or present officers, directors, governing
body, employees, agents, predecessors, attorneys, divisions, affiliates, representatives, successors
in interest and assigns and all persons acting by, through, under or in concert with any of them
( "City "), on the other, with respect to the following facts. Meyer, Centrone, Saywitz and the City
may be referred to individually as a "Party" or collectively as the "Parties" in light of the
following:
RECITALS
A. Saywitz is the lawful owner of the residential property located at 215 % W. 33`d
Street, Newport Beach, California (the "Property ").
B. Meyer and Centrone rent the Property from Saywitz as their primary residence on
a long term lease.
C. On July 4, 2011, at approximately 7:50 P.M., Meyer was issued a Notice of
Violation (# NOV01203A / DR # 11 -5717) for a violation of Newport Beach Municipal Code
( "NBMC ") section 10.66.020(A) based upon the fact that there were more than eight persons
present at the Property who engaged in Loud or Unruly Conduct and Property was posted with
the notice required by NBMC section 10.66.030 (the "Violation ").
D. Meyer filed a timely request with the City for an administrative hearing
concerning the Notice of Violation and made a deposit of the $1,500.00 civil fine amount.
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2011.
E. At Meyer's request, the administrative hearing was continued until October 3,
F. On August 2, 2011, the City sent Saywitz a notice for the Violation as required by
the NBMC and on August 12, 2011, City sent Saywitz an invoice (NBID # 363595 / Acct #
1321533RD) for the Violation indicating Saywitz, as the Property owner, was also liable for a
$1,500.00 civil fine.
G. Following receipt of the notice and invoice, Saywitz contacted the City and
indicated his desire to file a request for an administrative hearing.
H. Appellants deny all allegations of liability but wish to settle and resolve all
grievances, disputes, controversies, claims and actions between Appellants and the City in
connection with the Violation, including, but not limited to any and all administrative appeals
Appellants may have filed or intend to file, and any and all other causes of action, Writs, claims
or demands, in order to make their peace and avoid the uncertainties of litigation, investigation
or review, and the expenses and costs incident thereto.
NOW, THEREFORE, the Parties covenant and agree as follows:
1. Appellants do hereby and forever release and discharge the City and any past
and/or present parent, subsidiary and /or affiliated entities, as well as all direct or indirect
successors, officers, officials, directors, heirs, predecessors, assigns, agents, insurers, employees,
attorneys and representatives of the City, and each of them, past and present from any and all
causes of action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities, and
demands of whatsoever kind or character, known or unknown, suspected to exist or not
suspected to exist, anticipated or not anticipated, whether or not heretofore brought before any
administrative hearing officer, state or federal court or before any state or federal agency or other
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governmental entity and from all claims arising from or related or attributable in whole or in
part, to the Violation as well as any and all claims for discrimination, harassment, defamation,
violation of any statutory or constitutional rights, and all claims for attorneys' fees and costs
relating thereto and all claims which Appellants have brought or could bring under any statute or
legal theory, including the California Civil Code, the California Fair Employment and Housing
Act, Title VII of the U.S. Civil Rights Act, and any other state, federal or constitutional statute.
2. Appellants understand that this Agreement extends to all grievances, disputes or
claims of every nature and kind, known or unknown, suspected or unsuspected, past, present or
future, arising from or attributable to the above - referred matters and disputes. Appellants
understand and expressly agree that this Agreement also extends to any other matter, event or
claim occurring prior to the date of execution of this Agreement. Appellants further
acknowledge that any and all rights granted to them under Section 1542 of the California Civil
Code, or any other analogous federal or state law or regulation, are hereby expressly waived.
Said Section 1542 of the California Civil Code reads as follows:
SECTION 1542. CERTAIN CLAIMS AFFECTED BY
GENERAL RELEASE. 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.
3. Appellants understand and expressly agree that this Agreement shall bind and
benefit their spouses, children, heirs, agents, attorneys, representatives and assigns.
4. Appellants acknowledge that they have carefully read and reviewed this
Agreement and have been advised fully by legal counsel or other legally authorized
representative of the legal and binding effect of its terns. Appellants acknowledge that the only
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promises made to induce them to sign this Agreement are those stated herein. Having been fully
advised and informed, Appellants voluntarily enter into this Agreement, including the waiver of
rights covered by this Agreement.
5. Appellants hereby covenant not to sue or initiate against any City Released
Parties, any action or proceeding or to participate in same, individually, or as a member of a
class, under any policy, contract, law or regulation, federal, state or local, pertaining in any
manner whatsoever to the Violation with the City, pursuant to any rights Appellants may have
under any policy, or local, state or federal statute, law, or regulation.
6. The Parties hereto agree that this Agreement, including the covenant not to sue
contained herein, does not extend to acts, events or conditions which may initially arise in the
future, i.e., subsequent to the last date this Agreement is executed.
7. In consideration for the releases contained herein, Appellants and the City agree
to the following:
a) After Appellants send a fully executed copy of this Agreement to City's
counsel, City's counsel will within fifteen (15) days after receipt of the fully executed
Agreement return to Appellants a fully executed copy of the Agreement.
b) Appellants agree that the City shall keep the $1,500.00 civil fine deposited
by Meyer with City for the Violation.
C) The City will cancel the invoice and civil fine of $1,500.00 assessed
against Saywitz for the Violation.
d) Upon this Agreement being fully executed by all Parties, City will allow
Appellants to remove the posted notice of the Violation from the Property; however, should
Meyer be responsible for any further violations of NBMC section 10.66.020(A) before the
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expiration of the 90 period as required under NBMC Chapter 10.66, Meyer will be subject to an
increased fine level as set forth in NBMC section 10.66.060.
S. Each Party understands, acknowledges and agrees that this Agreement is made as
a compromise settlement to resolve actual and /or disputed claims and neither its execution nor
the furnishing of consideration in compliance with this Agreement shall constitute or be
construed for any purposes as an admission by any Party of liability, the merits of any claim or
defense, or any violation of any federal or state law, statute, rule, regulation or principle of
common law. Any such liability, admission or violation is expressly denied by each of the
Parties.
9. Appellants represent that they have not assigned or transferred, or purported to
assign or transfer, to any person or entity, any claim or any portion thereof or interest therein
against the City Released Parties.
10. The Parties agree to bear their own costs and attorneys' fees incurred in
connection with all matters resolved by this Agreement, whether or not incurred as of the date of
this Agreement.
11. This Agreement constitutes a single, integrated contract expressing the entire
agreement of the Parties hereto. There are no other agreements, written or oral, express or
implied, between the Parties hereto, concerning the subject matter hereof, except the agreements
set forth herein. The recitals, which the Parties agree are true and correct, shall be deemed an
integral part of this Agreement. This Agreement shall supersede any and all prior agreements,
either written or oral, express or implied, between the Parties concerning the subject matter
hereof.
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12. Each Party and representative for each Party to this Agreement has reviewed this
Agreement, and accordingly, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting parties will not be employed in any interpretation of this
Agreement.
13. This Agreement may be executed as one or more counterparts, and each such
counterpart shall be deemed an original as to the Party to be charged.
14. No waiver of any Party of any breach of any term or provision of this Agreement
shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of
the same, or any other term or provision hereof No waiver shall be binding unless in writing
and signed by the Party to be charged or held bound.
15. Should any provision of this Agreement be declared or determined by any court to
be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected
thereby and said illegal or invalid part, term or provisions shall be deemed not to be a part of this
Agreement.
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16. All Parties acknowledge that they are competent to sign this Agreement, and they
do so voluntarily. All Parties to this Agreement further acknowledge that they have had an
opportunity to review this Agreement prior to executing it and have had an opportunity to, and
did, consult legal counsel of their own choosing prior to executing this Agreement regarding the
terms of this Agreement and whether or not to execute this Agreement
DATED: C361
DATED:
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DATED: 81 II
DATED:
APPROVED AS TO FORM:
DATED:
ATTEST:
DATED:
ANDREW R MEYER
PAULCENTRONE
BARRY SAYWITZ PROPERTIES, L.P.
By
Barry Saywit
Managing P ttner
CITY OF NEWPORT BEACH
By
Dave Kiff
City Manager
OFFICE OF THE CITY ATTORNEY
By
Kyle E. Rowen, Acting Assistant City Attorney
OFFICE OF THE CITY CLERK
M
Leilani I. Brown, City Clerk
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16. All Parties acknowledge that they are competent to sign this Agreement, and they
do so voluntarily. All Parties to this Agreement further acknowledge that they have had an
opportunity to review this Agreement prior to executing it and have had an opportunity to, and
did, consult legal counsel of their own choosing prior to executing this Agreement regarding the
terms of this Agreement and whether or not to execute this Agreement.
DATED:
DATED:
ANDREW R. MEYER
PAUL CENTRONE
BARRY SAYWTTZ PROPERTIES, L.P.
DATED: By
Barry Saywitz
Managing Partner
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DATED: 9III-bull By � C \("2N
Davieleff
City Manager
APPROVED AS TO FORM: OFFICE OF TUA CITY ATTORNEY
DATED: /�`� �� By
Kyje g Rowen, Acting Assistant City Attorney
ATTEST:
DATED
OFFICE OF THE CITY CLERK
I. Brown,
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