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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. Page 1 of 7 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 Page 2 of 7 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 Page 3 of 7 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 Page 4 of 7 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. Page 5 of 7 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. Page 6 of 7 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: b ' 1Flk 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 Page 7 of 7 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 rot tt1 _L�ls ziwd /ii7 ;7ts:1:UO1; 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, Page 7 of 7