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HomeMy WebLinkAboutAGMT - DCOR LLC (Settlement Agreement and General Release)Final 10/15/2019 SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (hereinafter "Agreement") is made by and among DCOR, LLC (hereinafter "DCOR") and the City of Seal Beach, (hereinafter the "City") (DCOR and the City may be referred to herein individually as a "Party" or collectively as "Parties") subject to the following terms: RECITALS A. DCOR and the City are parties to those certain Pier and Parking License --� Agreements dated July 1, 2006 as amended July 25, 2011, and October 1, 2018 ("Pier Agreements") under which DCOR has been granted certain non-exclusive rights to use the Seal Beach Pier for boat landing and other activities. B. Among other items, the Pier Agreement gives DCOR the right to use the boat landing on the Seal Beach Pier during specified times, and requires that the City keep and repair all the boat landing equipment from damage that is not the fault of DCOR. C. There was a fire on the Seal Beach Pier on or about May 20, 2016 that, among other items, damaged the electrical supply to the Pier and to the boat landing ("Fire"). Electrical power is necessary to operate the boat landing. The fire damage was not the result of DCOR's operations or negligence. To continue with its operations, DCOR supplied temporary electrical power from a generator at its own expense while the City repaired the pier. D. On or about April 18, 2019 DCOR filed a claim with the City to recover its ongoing expenses incurred in providing temporary electrical power to the boat landing ("Claim"). On or about May 1, 2019, the City restored electrical power to the pier and to the boat landing. E. DCOR and the City, without admission of liability or fault in any way by City, desire to enter into this Agreement in order to fully compensate DCOR for its damages arising in any way out of the Fire, and to provide for the discharge of the Claim by DCOR against the City upon the terms and conditions set forth below. It is expressly understood, therefore, that the release given by DCOR in this Agreement are to the fullest extent permitted by law. F. The term "Released Claim" as referenced in this Agreement shall mean all existing and potential actions, claims, demands, obligations, causes of action, rights, damages, costs, loss of services, expenses and compensation relating to the Fire and its aftermath, which was the subject of the Claim, or that were or could have been brought by the Claim, including claims that are known or unknown, matured or un -matured, whether at law or in equity, whether before a local, state or federal court, tribunal, administrative agency or commission, and whether now liquidated or unliquidated, whether or not concealed or hidden, asserted or that might have been asserted, including under any federal, state or local consumer protection statute or administrative rules or regulation, or under any other state or federal statutes, or regulations, by DCOR (together with their predecessors, successors, representatives, parents, spouses, siblings, subsidiaries and affiliates, and the heirs, executors, administrators, successors and assignees), arising out of, based upon, or in any way related to the Fire and its aftermath. 57296-0001 \2346808v l .doc -1 Final 10/15/2019 WHEREFORE, in consideration of the promises and mutual covenants herein, the Parties understand and agree as follows: 1.0 Release and Discharge 1.1 In consideration of the payment set forth in Section 2, and for the waiver with prejudice referenced in Section 3, DCOR hereby releases and discharges any pending claim arising out of the Fire against the CITY, including the Claim, and agrees not to file any future litigation against the City related to the Claim or the Fire. DCOR hereby completely releases and forever discharges the CITY, and the CITY's affiliated entities and persons, from any and all past, present or future Released Claims, whether based on a tort, contract or other theory of recovery, which DCOR now has or which may hereafter accrue or otherwise be acquired, including, without limitation, any and all known or unknown claims for monetary damages relating to the Parties, or any future claims of the Parties, their representatives, successors, assigns or heirs, which resulted or may result from the alleged acts or omissions of the City which are the subject of the Claim or related to the Fire. 1.2 This release and discharge shall apply to DCOR, and its related entities, including their past, present and future owners, officers, directors, stockholders, insurers, attorneys, agents, servants, representatives, employees, partners, predecessors and successors in interest, assigns, subsidiaries, affiliates and parents, as well as the City's officials, council members, employees and attorneys, and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 1.3 This Agreement shall be a fully binding and a complete settlement between the Parties, and their heirs, assigns and successors. The obligations under this Agreement shall be in full and final disposition of the Claim with prejudice and of any and all Released Claims as against the City. On the effective date of this Agreement, DCOR shall be deemed to have fully, finally and forever released, relinquished, and discharged the City with respect to each and every Released Claim, including unknown claims, and shall forever be enioined from prosecuting each and every Released Claim or unknown claim relating to the Fire against the City and/or the City's insurer. This Agreement shall not be offered or be admissible in evidence by or against the Parties, except (1) in any action or proceeding brought to enforce or otherwise implement the terms of this Agreement, (2) in any action involving the Parties to support a defense of res judicata, collateral estoppel, release, or other theory of claim preclusion, issue preclusion or similar defense, or (3) in any "good faith" settlement proceeding. 1.4 The Parties agree that by the execution of this Agreement and the release of the Released Claims as set forth herein, none of the Parties admit responsibility or liability as to any matter whatsoever, nor shall this release, or the Agreement and release it effectuates, be admissible in evidence in any proceeding of any nature whatsoever except as described above. The Parties also agree that this release, and the monetary and other terms of the Agreement and release it effectuates, are reasonable in light of the alleged claims and injuries and are entered into in "good faith" within the meaning of, inter alia, California Code of Civil Procedure section 877.6 and other applicable law. 1.5 The Parties acknowledge and agree that the release and discharge set forth above is a general release. DCOR expressly waives and assumes the risk of any and all claims for damages -2- S7296-0001 \2346808v 1.doc Final 10/15/2019 which exist as of this date between DCOR and the City, but of which the Parties do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which if known, would materially affect the Parties' decision to enter into this Agreement. DCOR further agrees that DCOR has accepted payment of the sum specified herein as a complete compromise of matters involving disputed issues of law and fact. The Parties assume the risk that the facts or law may be other than the Parties believe. It is understood and agreed to by the Parties that this Agreement is a compromise of a disputed claim, and the payments are not to be construed as an admission of liability on the part of the City by whom liability is expressly denied. 1.6 DCOR hereby expressly waives any and all rights under Section 1542 of the California Civil Code, and under any and all similar applicable laws. DCOR is aware that said Section 1542 of the Civil Code 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 debtor. 2.0 Pam In consideration of the release set forth above, the City agrees to pay DCOR a one time, lump sum amount of forty five thousand dollars and no cents ($45,000.00). The payment shall be made payable to DCOR LLC, and shall be delivered to DCOR's counsel not later than thirty (30) calendar days following the execution of this Agreement by DCOR. 3.0 Conditions It is expressly understood by the Parties that this Agreement is conditioned upon DCOR releasing the Claim with prejudice and releasing the Released Claims as specified herein. 4.0 Attorneys' Fees and Costs Each party hereto shall bear its own attorneys' fees and costs, if any, arising from the actions of their own counsel in connection with the prosecution and defense of the Claim. 5.0 Representation of Comprehension of Document In entering into this Agreement, the Parties represent that they have had an opportunity to consult attorneys; that the Parties have had the opportunity to completely read the terms of this Agreement; and that the terms of this Agreement are fully understood and voluntarily accepted by the Parties. 6.0 Warranty of Capacity to Execute Agreement The Parties represent and warrant that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Agreement; that the Parties have the sole right and exclusive authority to execute this Agreement and the Parties shall receive the consideration specified in it, and that the Parties have not sold, assigned, transferred, -3- S7296-0001 \2346808v l .doc Final 10/15/2019 conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Agreement. 7.0 Survival of Representations The representations and warranties set forth herein endure forever and shall survive any investigation made by or on behalf of DOOR, regardless of any actual or constructive knowledge on the part of DCOR or the City with respect to the truth or accuracy of any such representation or warranty. 8.0 Liens, Costs or Expenses In consideration for the payment set forth in Section 2, DCOR shall be solely and exclusively responsible for any and all liens, bills, costs or expenses arising from or in any fashion related to the Claim, including but not limited to any claims by any lien holder for payment of any liens arising out of any services or equipment used or obtained by DCOR as a result of the Fire. DCOR agrees to hold the City harmless and to indemnify the City in the event that any lienholder or other third party asserts any claims against the City arising from DCOR's damages, costs or expenses related to the Fire. 9.0 Governing Law The Agreement shall be construed and interpreted in accordance with the laws of the State of California. 10.0 Additional Documents The Parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 11.0 Entire Agreement and Successors in Interest This Agreement contains the entire agreement between the Parties with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, spouses, family members, personal representatives, heirs, successors and assigns of each. 12.0 Enforcement of Agreement The Parties agree that the Orange County Superior Court will have jurisdiction over this matter in the event that a dispute arises. The prevailing party in any litigation brought to enforce the terms of this Agreement shall be entitled to recover its costs of suit incurred including, without limitation, reasonable attorneys' fees. 13.0 Effectiveness This Agreement shall become effective immediately following execution by both of the Parties. This Agreement may be executed in counterparts. -4- S7296-0001 \2346808v l .doc Z/� Final 10/15/2019 14.0 Enforceability The Parties agree that should any provision of this Agreement be deemed by a court of competent jurisdiction to be unenforceable under applicable law, the remaining provisions of this Agreement shall in no way be affected and shall remain in full force. The Parties also agree that any such provision deemed unenforceable shall be replaced automatically with an enforceable provision as close as possible in meaning and effect to that deemed unenforceable. 15.0 Cooperation in Preparation of the Agreement The Parties agree that this release is a product of joint drafting by the Parties and shall not be construed against either under the doctrine of contra preferentum. [SIGNATURES FOLLOW] DATED: OCTOBER 16, 2019 DCOR, LLC NAME: ALAN TITLE: MANAGER TON Al I t JILL R. INGRAM, CITY MANAGER ATTEST- APPROV �fS T� //,/ GLORIA ER, MC C IG LF CITY CLERK CIT ATTORNEY -5- S7296-0001\2346808v1.doc "A'T