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CC SR 20160920 P - Settlement Agreement with RWGRANCHO PALOS VERDES CITY COUNCIL AGENDA REPORT AGENDA DESCRIPTION: MEETING DATE: 09/20/2016 AGENDA HEADING: Consent Calendar Consideration of approval of Mutual Release Agreement between the City of Rancho Palos Verdes and Richards, Watson and Gershon, a Professional Corporation. RECOMMENDED COUNCIL ACTION: (1) To approve the Mutual Release Agreement between the City of Rancho Palos Verdes and Richards, Watson and Gershon, A Professional Corporation. FISCAL IMPACT: Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Anthony Taylor, Litigation Counsel REVIEWED BY: David Aleshire, City Attorney APPROVED BY: Doug Willmore, City Manager's ATTACHED SUPPORTING DOCUMENTS: A. Mutual Release Agreement between the City of Rancho Palos Verdes and Richards, Watson and Gershon, A Professional Corporation BACKGROUND: The City of Rancho Palos Verdes and Richards, Watson and Gershon, A Professional Corporation ("RW&G"), have been discussing potential disputes arising out of RW&G's representation of the City as City Attorney through September 1, 2015. The City Attorney's office recommends the City Council approve the attached settlement with RW&G. DISCUSSION: The City Attorney's office and RW&G have negotiated a proposed mutual release agreement through which the City and RW&G will release all potential claims against each other. In exchange, RW&G will waive its claim for outstanding legal fees and costs claimed for invoice numbers 203510 through 203515 in the amount of $69,859.92. The City would thus save this amount in legal fees and costs. Additionally, through the Mutual Release Agreement, the City will agree to pay RW&G the sum of $1,273.18 for invoice numbers 208069, 208070, and 208071 for work requested by the City within 30 days after approval and execution of the mutual release agreement. 01203.0003/314604.1 1 A continued dispute between the parties would lead both parties to incur substantial legal fees and costs. Under the terms of the Mutual Release Agreement, RW&G would waive its claim for $69,859.92 in legal fees and costs claimed on invoices it submitted to the City, which is a financial benefit to the City. CONCLUSION: The City Attorney's office recommends approval of the Mutual Release Agreement. ALTERNATIVES: In addition to the Staff recommendations, the following alternatives are available for the City Council's consideration: 1. Reject the Mutual Release Agreement between the City of Rancho Palos Verdes and Richards, Watson & Gershon, A Professional Corporation 01203.0003/314604.1 2 MUTUAL RELEASE AGREEMENT This Mutual Release Agreement (the "Agreement") is entered into by and between the law firm of Richards, Watson & Gershon, A Professional Corporation ("RW&G") and the City of Rancho Palos Verdes, a municipal corporation (the "City") (collectively, referred to as the "Parties" and separately as the "Party") to terminate fully and finally any and all potential disputes as described hereinafter. RECITALS WHEREAS, RW&G represented the City as its city attorney from the City's incorporation in 1973 through September 1, 2015; and WHEREAS, RW&G and the City wish to resolve all potential disputes between them related to the parties' city attorney relationship; and WHEREAS, each Party disputes any potential claims by the other Party; and WHEREAS, neither Party desires to incur substantial legal fees and costs concerning the above -referenced matters, and the Parties hereto desire to fully resolve any and all matters between them in a mutually satisfactory manner as set forth below. AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, all Parties hereto agree as follows: 1. Recitals. The above Recitals are incorporated by reference as if set forth in full herein. 2. Mutual Release. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, RW&G and the City do hereby each mutually release and forever discharge the "Releasees" hereunder, consisting of RW&G and the City, the City's elected and/or appointed public officials, officers, employees, attorneys, and agents, and each of the Parties' respective shareholders, associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, insurers, lawyers, including, but not limited to each and all of them and (as the case may be) and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which the Parties now have or may hereafter have against each other and/or the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof for any and all Claims of any nature whatsoever. Specifically, RW&G (and their respective Releasees set forth above) agree to waive legal fees and costs claimed for invoice numbers 203510 to 203515 in the amount of $69,859.92. This release shall not apply to the payment by City to RW&G of the sum of $1,273.18 for -1- 19927600 A-1 invoice number(s) 208069, 208070, and 208071, which shall be paid by the City within 30 days after the execution of this Agreement, or to any future invoices for work that the City requests or has requested RW&G to perform on or after August 1, 2016. 3. Discovery of Different or Additional Facts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of this Agreement, and expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 4. Release of Unknown Claims. The Release set forth above in Paragraph 2 of this Agreement is a release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have against each other, except for any claims which may arise from the terms of this Agreement. 5. Waiver of Civil Code Section 1542. Further, the Parties expressly agree to waive and relinquish all rights and benefits that they may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: "§1542. 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 settlement with the debtor." 6. No Other Pending Actions. The respective Parties each represent that they have not made or filed any demand, lawsuit or other claim against the other Party and/or against the Releasees in Paragraph 2 with any local, state or federal agency or court; and that if any such arbitrator, court or agency assumes jurisdiction of any such demand, lawsuit or other Claim against the other Party or its Releasees the Party making or filing such demand, lawsuit or other claim agrees to request such arbitrator or court to withdraw from and/or to dismiss the matter forthwith. 7. No Assignment of Claims. The Parties warrant that they have made no assignment, and will make no assignment, of any claim, chose in action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations released herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. 8. Non -Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed potential claims. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by any Party hereto, any Releasees or any affiliated person(s) or entity/ies. -2- 19927600 A-2 9. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns and related entities. 10. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. 11. Assistance of Counsel. The Parties each specifically represent that they have had the opportunity to consult to their satisfaction with and receive independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 12. Counterparts. This Agreement may be executed in multiple counterparts, and by facsimile and electronic mail, each of which shall be considered an original but all of which shall constitute one agreement. 13. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 14. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 15. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 16. Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 17. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 18. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. -3- 19927600 A-3 19. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 20. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. 21. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. 22. Authority To Sign. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party and to bind that party, including its members, agents and assigns, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. IN WITNESS WHEREOF, the undersigned have executed this Agreement, consisting of a total of five (5) pages, on the dates set forth below. p Richards, Watso Gersh Professional Corporation Dated: �dt >� , 2016 Kayser O. Sume Its: Chairman, Board of Directors City of Rancho Palos Verdes Dated: , 2016 By: Ken Dyda Mayor 1992760.3 ATTESTED BY: APPROVED AS TO FORM: Dated: , 2016 Aleshire & Wynder, LLP -5- 1992760.3 David Aleshire City Attorney A-5