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HomeMy WebLinkAboutCOSA V. PHOENIX GROUP INFORMATION SYSTEMSINSURANCE NOi' R€ QUIRED WORK MAY PROCEED CLERK Or COUNCIL nATG A-2018-110 MAY 0 2 7919 SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS (`}`, CAO Co) THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this "Agreement"), is made and entered into on April _, 2018 by and between THE CITY OF SANTA ANA, a Charter City and municipal corporation ("Plaintiff' or the "City") on the one hand, and PHOENIX GROUP INFORMATION SYSTEMS ("Defendant" or "Phoenix"), on the other hand. Plaintiff and Defendant are sometimes referred to herein as "the Parties"; and individually as a "Party". Except with regards to the obligations herein, this Agreement shall release Plaintiff and Defendant from any and all claims against each other for injunctive relief, damages of any nature and in any amount, attorneys' fees, litigation costs and all other forms of liability or relief in federal court, any state court, and/or in any administrative proceeding relating to the Lawsuit as defined below. This Agreement is made with reference to the following facts: RECITALS A. On or around June 26, 2017, Plaintiff filed a Complaint against Defendant for Breach of Contract, Account Stated, and Open Book Account. The Complaint is pending in the Superior Court of California, County of Orange as City of Santa Ana v. Phoenix Group Information Systems, Case No. 30-2017-00928452-CU-SC-CJC. On or around July 25, 2017, Defendant filed a Cross -Complaint against Plaintiff for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Promissory Estoppel, Account Stated, Open Book Account, and Unjust Enrichment. The Cross -Complaint is also pending in the Superior Court of California, County of Orange as City of Santa Ana v. Phoenix Group Information Systems, Case No. 30-2017-00928452-CU-BC-CJC , (Collectively, the foregoing Complaint and Cross - Complaint are referred to herein as the "Lawsuit"). Both Plaintiffs and Defendant's claims in the Lawsuit arise out of the Agreement for Automated Parking Citation Processing and Equipment (the "Parking Citation Processing Agreement") entered into between Plaintiff and Defendant whereby Plaintiff would pay Defendant to provide automated parking citation and processing services. B. The Parties and their attorneys of record have engaged in extensive good faith discussions and have had a sufficient opportunity to evaluate the merits of their respective claims and positions. C. As a result of those negotiations, and in order to avoid the time, expense and uncertainty of litigation of this matter, the Parties desire to end the Lawsuit and to settle and resolve and forever release, to resolve all of the outstanding claims and disputes between them, including but not limited to claims arising out of the Lawsuit on the terms and in the manner set forth in this Agreement. INTENT OF PARTIES 1. Each of the Parties hereto considers it to be in his, their and/or its best interest and to his, their, and/or its advantage forever to dismiss, settle, adjust and compromise all claims and defenses which had been or could have been asserted with regards to the Lawsuit. Therefore, the Parties make the following Agreement. 2. While this Agreement resolves all issues between the Parties in connection with the Lawsuit, it does not constitute an admission by any Party of any of the matters alleged by any other Party, or of any violation of Federal, State, or Local law, ordinance or regulation. Neither this Agreement nor anything in this Agreement shall be construed to be or be admissible in any proceeding as evidence of liability or wrongdoing by any of the Parties hereto. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and conditions set forth below, and for other good and valuable consideration, the Parties agree as follows: 3. Incorporation of Recitals: The foregoing recital of facts is incorporated herein and made a material part hereof by this reference. 4. Consideration: The Parties hereto have agreed to settle all claims of every kind between and among them relating to and/or arising out of the Lawsuit. Except for the obligations required in this Agreement, all claims asserted, or which could be asserted in the Lawsuit, known or unknown, are hereby expressly and forever compromised, discharged and terminated for all time. In consideration of the compromise and dismissal of claims and actions herein referred to, each of the Parties hereto agrees to perform each of the terms hereinafter set forth and abide by the terms of the Release as hereinafter given. 5. PgymenL1e1ms: Within thirty calendar (30) days of the execution of this Agreement, Phoenix shall pay a total sum of $249,300 (Two Hundred Forty Nine Thousand and Three Hundred Dollars) to the City (the "Settlement Sum") in connection with the City's lawsuit against Phoenix and Phoenix's claim and lawsuit against the City. The Settlement Sum shall be made payable to the City of Santa Ana by way of cashier's check and delivered to counsel for record for the Plaintiff, Tamara Bogosian, Santa Ana City Attorney's Office, 20 Civic Center Plaza, M-29, P.O. Box 1988, Santa Ana, California 92702, 6. Letter of Recoanition: Within five (5) days of the City's receipt of the Settlement Sum, the City shall transmit to Phoenix a letter of recognition, which shall acknowledge the City's appreciation for Phoenix's years of service provided to the City. 7. Dismissal of the Complaint and Cross -Complaint: Within ten (10) days of the City's receipt of the Settlement Sum, the City shall dismiss its Complaint, in its entirety, with prejudice, as to all parties and causes of action therein. On or before April 13, 2018, Phoenix shall provide counsel for the City with an executed request for dismissal with prejudice of its Cross -Complaint, in its entirety, with prejudice, as to all parties and causes of action therein no later than March 30, 2018 (the "Phoenix Dismissal'). Counsel for the City shall hold the Phoenix Dismissal in Trust and shall file it with the Court at the same time that the City files its request for dismissal with prejudice of the Complaint in this action. 8. Retained Jurisdiction. The Parties intend for the court to retain jurisdiction of the Lawsuit under Code of Civil Procedure section 664.6, and hereby stipulate and agree to the Court retaining jurisdiction to enforce the terms of the Agreement. 9. Binding on Successors and Assigns. This Agreement shall inure to the benefit of and shall bind the Parties hereto and their respective successors and assigns, who shall include their representatives, heirs, trustees, successor trustees, executors, administrators, successors, assigns, agents, managers, family, associates, partners, employers, employees, parents, companies, subsidiaries, affiliates, officers, directors, shareholders, members, accountants, insurers, reinsurers, attorneys, any trust established by them or of which they are the trustee or beneficiary, and any and all entities in which they are a shareholder, member, partner, beneficiary, principal, officer, agent or otherwise. 10. Mutu 1 General Release of All C a' itis: Except with respect to the obligations set forth in this Agreement, each of the Parties shall release the other Parties from any and all claims, demands, causes of action, rights, liens, losses, damages, obligations, and liabilities of any kind or character, whatsoever (whether known, unknown, or suspected or not suspected), at law or in equity, or otherwise, which either party may now have or claim to have or to have acquired, by reason of any matter, thing, event, condition, fact, circumstance or transaction arising out of or in any way related to the Lawsuit, and any of the facts and subject matter that form the basis for any of the claims asserted or that could have been asserted in a demand letter or in any subsequent litigation (the "Released Claims"). 11. Tax and Allocation Consequences. Plaintiff and its agents, assignees, nominees, insurers, and reinsurers, shall assume all risk and responsibility as to any tax consequences to them resulting from this Agreement and responsibility for any allocation of the proceeds of the Agreement as between them, their attorneys, or anyone else. 12. Waiver of California Civil Code Section 1542. Each of the Parties acknowledges and agrees that the Released Claims include all claims, whether known or unknown, suspected or unsuspected, Each of the Parties further acknowledges that he, she or it may hereafter discovery facts different from or in addition to, those which they now know, or believe to be true with respect to the Released Claims. Nevertheless, the parties agree that the foregoing release shall be and remain effective in all respects, notwithstanding such different or additional facts, or the discovery thereof, and further hereby expressly waive any and all rights provided in California Civil Code Section IS42 which 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 THE DEBTOR." THE PARTIES, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT PERTAINING TO THE RELEASED CLAIMS. 13. Entire A rr cnt/Modifiication/Waiver. This Agreement contains the entire agreement of the Parties hereto, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. There are no representations, agreements, arrangements or understandings, oral or written, between the Parties hereto, relating to the subject matter contained in this Agreement which are not fully expressed herein. This Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon the prior written consent of the Parties hereto. 14, Necessary Acts, Each of the Parties hereto shall, at the request of any other party, do all acts and execute all documents necessary to effectuate the terms and provisions of this Agreement. 1.5. independent; Evaluation. Each of the Parties hereto represents that it has had the opportunity to be represented or assisted throughout this matter by any attorney and/or advisor of their choosing and has made an independent evaluation of this Agreement, and enters into this Agreement based solely upon the advice of its selected advisors and/or their own independent evaluation and not as the result of any promise, representation or statement of any other party hereto that is not expressly set forth in this agreement. Each of the Parties hereto further represents that it has read this Agreement and understands the terms used herein and the consequences thereof. 16. No Admission of Liability: Neither the payment of any sum of money nor the execution or performance of this Agreement shall constitute or be construed as an admission of any liability whatsoever by any party hereto. 17. No Waiver by Implication: cation: 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 such waiver constitute a continuing waiver. No waiver shall be binding, unless executed in writing by the party malting the waiver. 18. Representative Cayrrt lir Ttv. Each person who signs this Agreement in a representative capacity expressly warrants his or her authority to do so. Each Party further represents and warrants, as to itself, but not as to any other Party, as follows: (a) Each Party is the sole and lawful owner of all right, title, and interest in and to every Claim and other matter that each such Party releases herein, and that each such Party has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm, or entity any Claims or other matters herein released. (b) Each Party has received or has had the opportunity to receive independent legal advice from attorneys of such Party's choice with respect to the advisability of executing this Agreement and the releases provided for herein, and prior to the execution of this Agreement by each Party, that Party's attorney, if any, reviewed this Agreement and discussed the Agreement with such Party, and the Party has made all desired changes, (c) Except as expressly stated in this Agreement, each Party represents and warrants that it has not made any statement or representation to any other Party regarding any facts relied upon by said other Party in entering into this Agreement, and each Party specifically does not rely upon any statement, representation, or promise of any other Party in executing this Agreement or in making the settlement provided for herein, except as expressly stated in this Agreement. (d) Each Party has had a full and fair opportunity to investigate and evaluate the transactions, documents, facts, circumstances, and disputes out of which this Agreement arises prior to entering into this Agreement, and each Party hereto have made such investigation of the facts pertaining to this Agreement, and all of the matters appertaining thereto, as they deem necessary. (e) The terms of this Agreement are contractual and not a mere recital. (f) Ey signing this Agreement, each Party represents and warrants that such Party has carefully read this Agreement, that the contents hereof are known and understood by such Party, and that this Agreement is signed freely by such Party. (g) Each Party executing this Agreement in a representative capacity represents and warrants that it is empowered to do so. 19. Construction. The language of each and all paragraphs, terms and/or provisions of this Agreement shall for all purposes be construed according to its fair meaning and not strictly for or against any party hereto and without regard to which party drafted or made changes to all or any portion of this Agreement. 20, No Assi mnent of Claims: Each party represents and warrants that he, it or she has not assigned, hypothecated, or otherwise transferred any interest in or to any claim he, it or she is releasing herein and agrees to indemnify, defend and hold harmless all parties from any liability, claims, demands, damages, costs, expenses, and attorneys' fees incurred by such parties as a result of the assertion of any claim released hereto by a person asserting to be an assignee or transferee of such claim. 21. Costs and Pees Relating to the Lawsuit, The Parties hereby acknowledge and agree that all attorneys' fees and costs incurred on account of, or in any way related to or arising from, the Lawsuit, shall be borne solely and completely by the Party on whose behalf such attorneys' fees and costs were incurred, and the Parties other than the Party whose behalf such attorneys' fees and costs were incurred shall not in any way be liable or responsible thereof. 22, C'omi[grusts. This Agreement may be executed in sepunte counterparts, An electronic or facsimile signature shall be regarded as an original signature for purposes ofthis Agreement and shall have the stone force and eff'ccl as an original signature upon reeeipt by the other party. 23. C'boicc: of"LnwlVetmc, This Agreement shall be governed by and constrnad under the laws of the State of California. If any provision of this Agreement is invalid or contravenes Calilbrnia law, such provision shall he deemed not to be a part of this Agreement and shall not affect the validity or onforoeability of the remaining provisions, Nothing contained herein shall be construed so as to require the commission of any acts contrary to law, and wherever there is a conflict belwcen any provisions of this Agreement and any present or future: statute, law, ordinance, or regulation, the former shall be curtailed and limited only to the extent necessary to make it comply with such statute, law, ordinance, or regulation. Any action arising out orchis Agreement, or the matters addressed herein, shall be brought within the Superior Court for the State of California, County of. Orange. 24. Seveteiliilit ;. If any material portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in Hill force and effect. 25, Armendmont1. This Agreement may lie amended only by written agreement signed by all of the Parties hereto, or their respective successors Or assigns. IN WITNESS WHEREOF, the parties hereto have exema:ed this Agreement as of the dale first written above, PARTIM Tl I' CITY OF SANTA ANA n �. Dated: ? By: print Namo: Raul G in 11 Ifs: Cityhtfai Eger ^ r� PHOENIX ORO ' IN,F( RfvIATION SYSTEMS Dated:—Y051[r_ 1;y: .kJ 1f . print Name: its: p1 APPROVED AS TO FORM: SONIA lt. CARVA1.1-10 CITY ATTORNEY City of Santa Ana Dated: PO TAMARA BOGOSIAN Assistant City Attorney Attorney for CITY OF SANTA ANA PALMIERI, TYLER„ WIENER, WILHELM & WALDRON LLP Dated: � (i3 0 `b CA Elise M. Kern Erin K. Oyama Attorneys for Phoenix Group Information Systems ATTEST: CITY OF SANTA ANA, a chrter law city and municipal corporation, duly organized and existing under the Constitution and laws of the Sta alifornia --����6 By: Dated: Naiia D. Huizar, Clerk th - cil