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Home My WebLink About7515 Monterey Street - URM BuildingSETfLEM NT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Release of all claims (the °Agreement° or "Settlement Agreement") is entered into by and between John Bartlett ("John"), Richard Bauden (" clwd'), Ain Baud= C Ann'l Cynthia Boxall ("Gjn Wa"), David Cunningham ("David'), and Francine Cunningham ("Francine "), collectively the "Defendant.', in their respective individual capacity, and The City of Gilroy, County of Santa Clara, State of California (-City-) in the disputed matter regarding: 1) the real property located a17515 Monterey Street, Gilroy, CA 95020, APN 799 -06 -053 {"Property"); 2) Santa Clara County Case FIS55977 ( "Criminal Case "); 3) Defendants alleged violations regarding the Property, including but not limited to Gilroy City Code §§ 5D.6, 5D.7, 6.50(axl), and 6.50(a)(2) ("Alleged Violationn; 4) Any and all City's lions, fines, fees, penalties, expenses, and costs against Defendants and Property ( "City Expense"); collectively the "Action". Hereafter, Defendants and the City in their respective individual and/or collective c apacity(tes) are referred to collectively as "Parties." WEEREAS, the Parties negotiated a settlement of all pending claims and alleged breaches in the Action on the term and conditions set forth below, without admission of fault or liability on the part of any party, but in the interest of eompromise and settlement and to foreclose further potential litigation in order to avoid lengthy and costly proceedings, attorneys' fees, and related costs. NOW, THEREFORE, in consideration of the following covenants and agreements, the Parties agree as follows with refereace to the following facts: A. On or about October 16, 2006, City adopted Ordinance No. 2006.19, which added a now Article VI entitled "Seismic Safety" to the Gilroy City Code effective on November IS, 2006. B. From approximately 2012 through 2015, City mailed to Defendants' agent AW CAL Services, Inc.. at 1141 Catalina Drive #307, Livermore, CA 94550 copies of UliM SETTLEMENTAGREE MENT AND MUTUAL RELEASE NOMMICNamm Page l 1 of 8 Noncompliance Invoices, Administrative Citations, Native of Property Liens, and other correspondence. C. On or about Jane 23, 2015, City filed in Santa Clara County the Criminal Complaint for the Alleged Violations against the Defendants. On that same day, City obtained warrants for the arrest of Defendants related to the Criminal Complaint. D. Subsequently, Defendants posted bond for the warrants, and the Criminal Complaint was set for arraignment. E. On November 10, 2015, at the arraignment, Defendants entered pleas of not guilty to all counts, and the court set the matter for the following: pretrial conference on December 7, 2015; jury trial readiness on December 11, 2015; and jury trial on December 14, 20I5. F. On December 7, 2015, Parties negotiated a settlement of all pending claims and alleged breaches in the Action on the terms and conditions set forth below. The Court ordered the Parties to return to court on February 5, 2015 for disposition of the Criminal Complaint and the Action. G. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows: AGREEMENT Ino2rp2ra6on_o Recitals. The recital paragraphs above are hereby incorporated herein by reference. 2. Scone of Settlement. Except as provided herein, the scope of this Settlement Agreement includes any and all issues, controversies, demands, disputes, c.Wnrs, causes of actim bdury or interests arising from, out of, or relating to the Action as between the parties. 3. Claims. All issues, controversies, demands, disputes, claims, causes of action, injury or interests, including without limitation rights to appeal of any Judgment or decision arising from or out of any matter or item identified in Scope of Settlement shall be individually SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 12 of 8 referred to as a "Claim" and collectively referred to herein as "Claims". The filing of the Criminal Complaint and all subsequent contact between representatives of the City of Gilroy and/or the Gilroy Police Department and the Defendants are included with the definition of "Claims." 4. Compromise and Settlemol. Subject to the conditions herein, the Parties to this Settlement Agreement desire to finally compromise, settle and discharge any and all Claims with regard to The Action which any Party to this Settlement Agreement now has, or may claim to have, against any other Party to this Settlement Agreement (including, but not limited to any Claims by her respective spouses, children, issue, relatives, siblings, heirs, descendents, legal beneficiaries, administrators, executors, affiliates, successors, agents, attorneys, officers, directors, general or limited partners, parents, subsidiaries, shareholders, employees and assigns) arising out of or in any way connected or related to the Claims in The Action. 5. Settlement . a. On February 5, 2016, City shall dismiss, release, and waive with prejudice any and all Claims from the Action, specifically but not limited to the Criminal Complaint if and only if the City is in receipt of thirty-three thousand dollars ($33,000) from the Defendants. Receipt shall mean that a check in the amount of $33,000 from the Client Trust Account of Paul Wilk ins Law made out to the City of Gilroy is in the physical possession of the Gilroy City Attorney, whose office is located at 10 Almaden Boulevard, l le` Floor, San Jose, CA 95113. b. if the Gilroy City Attorney is not in receipt of the $33,000 on or before the court hearing on February 5, 2016, City reserves the right to continue prosecution of the Action against Defendants. 6. Mutual Releases. Upon execution of this Agreement, and except as otherwise provided herein, each Party hereto, for and on behalf of herself, himself and itself, in his, her or its individual, repr+esenwtive or fidudary capacity and each of his, her or its respective spouses, children, issue, relatives, siblings, heirs, descendents, legal beneficiaries, administrators, SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 13 of S +a+s �teo executors, affiliates, successors, agents. attorneys, officers, directors, general or limited partners, parents, subsidiaries, shareholders, employees and assigns (collectively, a,"ReIeasoe% hereby irrevocably and unconditionally forever releases, waives and forever discharges each other Party hereto (including, but not limited to their respective spouses, chrildra% issue, relatives, siblings, heirs, descendents, legal beneficiaries, administrators, euecutm affiliates, successors, agents, attorneys, officers, directors, general or limited parmem parents, subsidiaries, shareholders, employees and assigns) (each, a "Released Party", and collectively, "Released Parties") from any and all Claims which such Releasor may now or in the furore hold based upon, arising from or out of, or relating to the Claims (i.e. The Action). In addition, Defendants hold harmless City its officers, representatives, attorneys, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission arising out of the Action. 7. Wan of Undisclosed and Un known Claims. Each Releasor (individually and in his, her or its representative or fiduciary capacities) acknowledges to the other Releasors that there is a risk that after execution of this Settlement Agreement, he, she or it win incur or discover losses, damages, or injuries which are in some way caused by the events which were the subject of the released Claims (re. The Action) but which are unknown and unanticipated at the time this Settlement Agreement becomes effective. Each Releasor (individually and in his, her or its tepresentative or fiduciary opacities) hereby assumes for himself; herself or itself the above - mentioned risks and understands that this Settlement Agreement shall apply to an unknown or unanticipated results of the events which were the subject of released Claims as well as those known and anticipated, and upon advice of counsel, hereby waives any and all rights and Claims under California Civil Code section 2542 which section has been explained and reads as follows: SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 14 of 8 NQb1166 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO FAST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY •Y AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR S. Indemnification. To the fidlest extent permitted by law, Defendants shall defend, through counsel approved by City (which approval shall not be unreasonably withheld), indemnify and hold harmless City its officers, representatives, attorneys. agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission arising out of the Action. This indemnification shall survive termination of this Agreement and of the Action. 9. General Provisions. a. . The Parties shall reasonably cooperate in promptly executing any additional documents that may be necessary to fully effectuate the terms of this Settlement Agreement and the Parties' performance of their obligations hereunder. b. The Parties to this Settlement Agreement have been represented by counsel whose advice they have solicited and with whom they have consulted C. Each Party acknowledges, understands, agrees and represents that such Party (0 leas carefully read the contents of this Settlement Agreement and that the terms of the Settlement Agreement and its cousequences are fully understood and voluntarily accepted by such party, (ii) is, through this Settlement Agreement, releasing the Released Parties from any and all Claims relating to the Action that such Party (or any related Releasors) may have against SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page l 5 of 8 "ONJOC'OM180 the Released Parties, (iii) knowingly and voluntarily intends to be legally bound by the terms of this settlement Agreement, (iv) expressly waives the benefit of any statute or rule of law (ittccluding, without limitation, under California Civil Code section 1542) that, if applied to this Settlement Agreement, would otherwise exclude any Claim not known by such Party (or any related Releasors) on the date of execution of this Setilernentt Agreement to exist from the binding effect of this Settlement Agreement, (v) was advised and is hereby advised in writing to consult with an attorney of such Party's choice prior to executing this Settlement Agreement concerning its meaning and application and (A) agrees that the provisions of" Settlement Agreement may not be amended, waived, changed or modified except by an instrument in writing signed by each of the Parties. d. This Settlement Agreement is intended to be specifically cahroeabie putsuaM to the provisions of Code of Civil Procedure Section 664.6, in the Santa Clara County Superior Court. This Settlement Agreement is not to be deemed as an admission of liability or of the merits of the released Claims but rather, is the result of a negotiated resolution of disputes between the Parties, while taking into account the time, expense, and uncertainties of litigation. This Settlement Agreement shall be construed pursuant to the laws of the State of California, and shall be binding upon the Parties hereto, their respective spouses. children, issue, relatives, siblings, heirs, descendents, legal beneficiaries, administrators, executors, affiliates, successors, agents, attorneys, officers, directors, general or limited partners, parents, subsidiaries, shareholders, employees and assigns. g. in the event of a breach of this Settlement Agreement, the prevailing Party SETMEMENT AGREEMENT AND MUTUAL RELEASE Page l 6 of 8 fiI180 shall be entitled to smh reasonable fees and costs as the Court may fix with ra Tact to the legal expenses Incurred in the enf moment of the Settlement Agreement. IL This Settlement Agreement may be cx=uW in comderpaft'including by facimlle or pdf format, each of which will be deemed a minterpart original. A signature hereto sent or delivered by facsimile or other electronic transmission shall be as legally binding and enforceable as a signed original fbr all purposes. This Setdeaent Agreetumit constitft the complete agreement and and ng, regard'mg the subject matter hereof and stWseft my prior mtderstanrlirgs, agrecramu or representations reau ding the subject matter hereot Le. Tine Action. Each Party shall bear its own attorneys' fees. WHEREFORE, the Parties bave executed this Settlement Agreement, effective upon the data of the last sIpattrc hereto. DEFENDANTS: Dated: Jahn BartW Dated: .Bauder Dated: Ana Baoden Dated: Boamll Dated: �-oZ3 -1� N a SETTLEMENT AGREEMENT AND AAt3FlJAt. RELEASE Page 17 of 8 aaaaat " p A/1 CITY OF GILROY DateB: 2 -2 -/& J. Tawas Iatasm City AdminkWor APPROVED AS TO FORM: Law Office of Paul WiUdw l� t By: Paul ViMns. Attorney %r Defendants City of Gilroy City Attorney SMUMENT AGREEMEMAND MUTUAL RELEASE Page 18 of 8 to J544 0= Nama o vum