Settlement Agreement 02 o t dQ YO
SETTLEMENT AGREEMENT
Mercedes--'.Benz Financial Services, USA, :LLC, on behalf of its Corporate Officers
and in, their Corporate capacities, and the City of Miami Beach., - for themselves and all
persons or - entities claiming :by or through them, and , their directors, officers, principles,
agents, successors in interest, and located at 1700 Convention Center Drive,
Floor, Miami Beach, Florida : 33139 (.collectively "Miami :Beach ")., Whereby enter into this
Settlement Agreement, (the "Settlement Agreement "), dated . jcBc�I- 22, % /
2011, to settle as follows:
RECITALS
WHEREAS, Miami :Beach and Mercedes -Benz Financial Services, USA, .LLC
referencing the loan account of Cenor Clauvens, Account -No. 1024596629, desire to
resolve and settle . pending disputes, claims and counterclaims between them,
including without limitation, -all claims and counterclaims that were_ or could have been
-asserted in this forfeiture proceeding, or any other civil case, past, ; present, or future,
without any party admitting liability, as set herein; and
WHEREAS, -the Parties believe it would be in - their best 'interests., and the
interests .of the citizens - and residents of :Miami Beach to agree to - the provisions of this
Settlement: Agreement; -and
WHEREAS, 'in consideration of the - mutual agreements, undertakings and
representation .contained in this Settlement Agreement, ..and other :good 'and valuable
consideration, the receipt Nand sufficiency. of which are ::hereby ..acknowledged by the
, parties, Mercedes-Benz Financial Services, USA, LLC .and Miami` Beach are in
agreement:
NOW, THEREFORE, in .consideration of 'the mutual agreements, :undertakings
- and - representations contained in this Settlement Agreement, and other : good and
valuable consideration,'thereceipt and sufficiency of which are -herebYacknowledged by -
the -Parties, .M'ercedes =Benz *Financial Services, USA, LLC .and Miami Beach agree .as
-follows:
A. The foregoing recitals _are true, accurate and correct and are incorporated herein by
'this reference.
1. 'The °property .that 'is :the subject .of this Agreement is - a'2008 - Mercedes CL550, .
VlN # WDDEJ71X38A0'15577,7X Tag 'No'D18VD (the "Vehicle ").
2. - Mercedes- Benz.Financial Services, .USA, LLC; for.purposes of the 'Stipulation .
of Settlement -and :Agreement, certifies that it has an equitable, possessory
'and proprietary interest in the 2008 Mercedes -CL550, VIN #
WDD:EJ71X38A015577, 7X "Tag No D18VD, loan -account holder Cenor
Clauvens, with .Account : -No. 1024596629, , and - has standing to :challenge this
forfeiture as Lien holder of .the Vehicle.
'Page 'l of 6 : :
Settlement Agreement
Mercedes -.Benz Financial Services,,USA, LLC and City of Miami Beach
MBPD Case No.: 2011- 91260
3. Mercedes -Benz Financial Services, : USA; LLC certifies that 'it is freely and
voluntarily entering into this Agreement with the benefit of its - counsel John S. .
Schoene, Esquire of John S. Schoene, P.A.
4; - Mercedes=Benz Financial Services, USA, .LLC_agrees to release any and all
equitable, possessory and proprietary :interest in -the Vehicle to .the _City of
Miami Beach, :and shall not assert any defense(s) the forfeiture proceeding
that may be initiated by the City of. Miami - Beach. The Vehicle shall be
disposed of in accordance with the Florida Contraband Forfeiture Act, and as.
authorized by the - city-of Miami Beach Commission;
5. This Agreement shall. be binding and 'inure -to 'the benefit of the '.parties and
their respective legal representatives, successors and assigns.
6. - By entering into this Agreement, .Mercedes -Benz 'Financial Services, - USA,
:LLC in no way admits any alleged conduct, statements, facts, or
interpretations or such conduct, .statements or facts associated with - the
investigation and /or arrest of Mr..Clauvens. Cenor, .Jr seizure of the Vehicle,
or .any :allegations by the .MIAMI ;BEACH POLICE 'DEPARTMENT's agents
upon; which the MIAMI BEACH POLICE DEPARTMENT bases its .seizure .
and right - to forfeiture of the Vehicle.
7. Each party - agrees to this settlement and waives the Court's -approval.
pursuant to Section 932.704(7), .Florida :Statutes, and the parties are to bear
their own :attorney's fees and costs.
B: Upon. the full execution of this Settlement Agreement, Mercedes -Benz "Financial
Services, USA, ,LLC, shall .receive.the sum of Forty -One Thousand and 00/100 :Dollars
($41,000.00) and other good and valuable consideration which is hereby acknowledged,
-do agree to a full .and final settlement .of all :claims, as may be alleged in the Notice of
Seizure, nor that which could have been alleged in the forfeiture proceedings 'initiated
pursuant to.-the Florida Contraband Forfeiture Act.
C. The ;Parties shall agree to Dismissal with Prejudice regarding all claims for damages
based on - the _allegations set forth in -the Notice ,of Seizure if any and all claims that
were or could have been brought pursuant -to the Florida Contraband Forfeiture:Act, and
the :City of, Miami . Beach shall receive .a release as to all claims that were or, could have
been on .behalf of 'Mercedes- Benz Financial Services, USA, .LLC orthe,City of
Miami Beach or any of their officers, -.directors, principals or agents in their corporate or
in their individual capacities relative to the .seized referenced :2008 Mercedes CL550,
VIN No. WDOEJ71X38A015577, TX Tag No D18VD (the "Vehicle ") under Miami'Beach
;Police Case -Number .2011- 00091260.
D.' The Parties shall bear their own attorney's fees -and costs. surrounding the forfeiture
-and seizure, except as to those attorney's - fees and costs already awarded therein, if
any, , and this Settlement Agreement may authorize.
Page.2 of 6
4
Settlement Agreement
Mercedes- Benz-Financial Services, USA, LLC and City of Miami Beach
MBPD Case No. 2011 -91260
E. This Settlement Agreement shall be construed, enforced and :interpreted in
accordance with the `laws of the State of Florida. In. the event that an ambiguity or
question of intent or. interpretation arises, this Settlement Agreement shall be construed
as if crafted jointly -by each of the Parties hereto and no presumptions or burdens of
proof shall arise favoring any party by virtue of the authorship of any of the provisions of
the Settlement: Agreement. The Parties jointly conclude that should this Settlement
Agreement be challenged by any of the Parties, that venue bringing such challenges
shall _take place in the County of Miami- Dade, Florida.
F. Actions taken by any of the Parties hereto .pursuant 'to or �in furtherance of the
provisions hereof shall not be admissible in any legal proceeding in event the
transactions contemplated hereunder are not performed or consummated, except as
necessary to enforce the terms of this Settlement Agreement.
G. The . Parties agree they will take any and all actions consistent with the, intent and
purpose of this Settlement Agreement and requirements of applicable law, and execute,
acknowledge, subscribe and deliver any and all further documents and instruments as
may be reasonably necessary to effectuate the purposes of this Settlement Agreement.
H: 'The Parties understand and agree'that no party admits liability of any sort by reason
of the above incidents, acts., casualties, -events, representations, omissions, conduct, or
interpretation. The Parties also understand and agree`that this Settlement Agreement
constitutes the good faith compromise of the forfeiture, and is made in good faith 'to
terminate any controversy respecting all claims Ior damages, causes of action, or
.-potential liability which could have been ascertained - by reasonable diligence which
either Party to this Settlement Agreement may have - asserted now, - or may assert in the
future "because of any damages, incidents, acts, casualties, or events, .described -.or
alluded to in this Settlement Agreement.
1. The Parties acknowledge that this Settlement Agreement constitutes :the entire
_agreement. They further acknowledge that they have read it and understand it; °that the
terms .and conditions of this Settlement Agreement 1were arrived at in -arm's- length
negotiations between the Parties with :all Parties provided the opportunity to seek the
advice of ,legal counsel; that each .Party's legal counsel did or could have. reviewed this
Settlement Agreement; and that each Party has given due and full consideration to the
legal position of the other in regard the provisions contained-herein.
J. This :Settlement Agreement shall -be deemed drafted by all- Parties and there =shall be
no .presumption against any.-party - relating to the drafting ..of the Settlement Agreement
and - the:language used herein.
.'K. Any notices required or permitted to be given under this Agreement,shall .
be in. writing and shall be deemed to have =been .given if delivered 'by hand, sent - by ,
recognized overnight - courier . (such as Federal Express) or mailed *by certified or
registered mail, return receipt requested, in ,a postage prepaid envelope, and addressed
as follows:
Page 3 of 6
Settlement Agreement
Mercedes- BenzfFinancial Services, USA, LLC and City of Miami Beach
MBPD Case'No.: 2011 -91260
If to City at:. City of Miami Beach
170O.Convention Center Drive
Miami Beach ; , Florida 3313 9
Attn: City Manager.
With a. copy to. City of Miami Beach .
1 Convention Center.Drive
Miami Beach, Florida 331.39
Attn: City Attorney
If to Mercedes -Benz John S. Schoene, :Esquire
Financial Services, USA, John S. Schoene,,,P.A.
LLC, .at: 100 .East Sybelia Avenue
Suite 205
Maitland; Florida 32751
Notices personally.delivered or ;sent 'by overnight courier shall be deemed given on the
date of :delivery, and' ,mailed. in -accordance with the foregoing shall : be deemed
given upon - recei,ptby the:Parties.
L. The -Parties signing - this - Settlement Agreement represent and warrant that they have
full and complete pgal and binding :authority to enter into this Settlement Agreement.
The -P warrant and represent that they' have not sold, assigned,. transferred,
conveyed, or _otherwise disposed of.any, of .the claims, demands, obligations, or .causes
of action referred to in this 'Settlement Agreement.
M. This :Settlement Agreement is binding on the Parties hereto -and the Parties agree,to
execute any and all documents necessary and consistent with applicable law, to ratify,
confirm,.-and perform,the terms and provisions of this Settlement Agreement: The terms
of - this Settlement Agreement be.bind and inure to the benefit of`the Parties;
- their legal representatives, members, constituents, successors, assigns. - subsidiaries
and affiliates, and shall supersede all prior discussions, - negotiations and agreements
among the Parties, - concerning settlement. No modification, waiver, amendment,
discharge, or change of this 'Settlement Agreement shall be- valid unless. the :same is in
writing ,and signed :by' the Party against which -the enforcement of such modification,
waiver, :amendment, discharge, or change is sought.
N. This Settlement Agreement - may, - be signed in counterparts, - and the signature
counterparts of - the Parties or their .authorized representative shall be treated' the same
as if this Settlement -Agreement 'had been signed by all' Parties or their authorized
representatives. A 'facsimile signature shall be deemed the equivalent of an original
signature of a Party or its authorized representative.
O. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, - acts of
God, inability to obtain labor -or -materials or reasonable substitutes therefore, riot, civil
commotion, or other casualty; and other causes beyond;the reasonable control of the.
'Party obligated to perform, excluding the financial inability of such Party. to. perform, shall
excuse - the performance 'by such 'Party for a period of .time equal to any °such - period of
Page 4 of 6
Settlement Agreement
Mercedes -Benz Financial Services, USA, LLC and City.of Miami Beach
M B PD Case 2011 -91260
,prevention, delay or stoppage. Any Party seeking to invoke this paragraph shall provide
written notice to the other Party as soon - as reasonably practicable under the „
- circumstances:
P. In the event any provision, term :or condition of this Settlement Agreement, 'on behalf
of either. Party, thereto. shall _be inapplicable, invalid; illegal or unenforceable in any
respect, the remainder of this Settlement Agreement and *application of such provisions,
terms or conditions shall not be affected thereby, and shall be enforced to the fullest
extent permitted law.
�. It -is .hereby acknowledged by the Parties that nothing contained in this Settlement.
Agreement was intended to serve as a waiver -of sovereign immunity, as set forth and
codified in Section 768.28 of the Florida Statutes, by the City of Miami :Beach to which
sovereign immunity :is applicable in the. recovery of damages in tort.for money damages
against -the state or its agencies or subdivision or injury or loss of property, personal
injury, or death caused by the negligent - or wrongful act or omission of any employee of
the agency or subdivision while acting within the. scope of the employee's, office. or
employment.
R, The Parties expressly acknowledge that it is not their intent to 'create'or confer any
rights or obligations in or upon .any .third -person or entity under this Settlement
Agreement. None of the Parties intend to - directly or substantially :benefit a third party by
.this Settlement Agreement. The ,Parties ,agree`that there .are 'no third party beneficiaries
- to this Settlement. Agreement and that no third party shall be entitled to assert a claim
against any of the Parties based upon this Settlement Agreement. Nothing herein shall
..be construed .:as consent by an agency or political subdivision of the State of Florida to:
be sued by.third "Parties in any manner arising out of this Settlement Agreement, or other
obligations, : whether - known or unknown to the-Parties.
WHEREFORE, the Parties approve the above .terms and enter into -this
settlement of this Dispute between. them as provided above as of the date first entered
above.
Dated: 00v6ef 24, 2.011
Y6T NESSES: Mercedes -Benz Financial Services, USA,. LLC
°Kim Nguyen, Loss, ecovery Team Specialist'for
'.Mercedes -Benz Financial'Services, USA, LLC
STATE OF T-� A )
)SS:
COUNTY- OF 1.�Z�1'0 )
1 -HEREBY CERTIFY that on this date, before me, an officer duly _authorized in
this State and County to take acknowledgments, ;.personally appeared
'Page -5 of 6
Settlement Agreement
Mercedes -Benz Financial Services, USA, LLC and City of Miami Beach
-. M B P.D Case No.: 20.11- 91260
uQe authorized Person for Mercedes -Benz Financial
Services USA, LLC, personally known to me or have produced identification, named, in
the foregoing Settlement Agreement,. and -that she acknowledges executing the same
freely and voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned
this day of C'�%�%1!- ,_2011:
M Commission Ex Tres:
. Y
dA Notary-Public, State of. T2Q'
��P -..... UAL . Rita ' Barger .
'my commission Expires
12/13/2011
CITY OF MIAMI BEACH,
A a Florida municipal corporation
aA
By:
Robert Parcher, City Clerk Jorge M. Gonzalez, City Manager
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI -DADS
HEREBY CERTIFY - that on - this date, before me, an officer duly authorized in
his State .and County to take acknowledgments, personally appeared
, s City Manager, City of Miami Beach --1,
��^'''r,LL✓'c�e�- - , personally known to me, na med in the
foregoing Settlement. Agreement, and `that he acknowledged executing the same .-freely
and voluntarily on behalf:of the City.
WITNESS my hand and official seal in the County and State last aforementioned
this .,D-Po of ..� rv� {' 2011.
My Commission Expires:
Notary P blic, .State of Florida
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r Page of 6
GENERAL RELEASE AND WAIVER
KNOW ALL' MEN :BY THESE PRESENTS::
That for value received and other good and valuable, consideration, the receipt
and sufficiency of which are hereby acknowledged, Mercedes -Benz Financial
Services, USA, "LLC, on behalf of the.Corporation'.and - its Corporate Officers, do hereby
for - - ' themselves, and their respective heirs, executors, administrators, personal
representatives, insurers, reinsurers, agents, .successors and. :and any person,
or entity claiming by, through, or for, or succeeding to the right of any of the foregoing
(hereinafter referred to collectively as "Releasors"), release, 'remise, acquit, satisfy,
waive and forever discharge the City of Miami Beach, its heirs, . 'executors,
administrators, personal representatives; insurers, reinsurers, agents, successors 'and
assigns, and any person or entity acting for, by :or through any of the foregoing
(hereinafter. referred to.collectively as "Releasees ") of and from any and all. manner of
actions, causes of action, suits, debts, costs, attorney's fees, sums of money, accounts,
reckonings, - bonds, .bills, specialties, covenants, controversies, loss of services,
obligations, liabilities, ' agreements,- promises; ::variances, disputes, trespasses, damages,
repairs, injuries, losses, liens, judgments, executions, complaints, claims, counterclaims.,
cross- claims and all .demands whatsoever, in law. or in equity, whether known or
unknown; direct or indirect, which Releasors ever had, now have or which may _hereafter
accrue for, upon or by reason of .any -matter, cause or .thing whatsoever .from the
A .
`beginning -of the :world to the day of the :date of this .General Release and Waiver,
including but not limited to all .claims, demands, damages, liens, counterclaims, cross
claims, actions and causes, of action on account of, in connection with or in anyway
arising out of; or relating to, or which were or could have been asserted regarding - the
dispute as set forth in the recitals of the Settlement Agreement,
Releasors agree that they will forever refrain and forbear from :any action or other
.proceeding of -any kind whatsoever, by way of action, defense, set -off, cross complaint,
counterclaim, third party action or otherwise, against Releasees,�:or any of them, based
°on, relating to, .arising out - of, or in connection -with any of - the , - Claims. released and
discharged hereunder.
Releasors hereby waive, to -the fullest extent permitted- bylaw, the benefits -of any
statute, law, rule, regulation or common law which may limit the'scope 'of , the covenants
and releases contained herein.
Page 1 of 4
Releasors intend by this General Release and Waiver to forever release, remise,
acquit, waive, satisfy and forever discharge Releasees of and from any - and all :
and rights described above, `it. understood that all of the Claims or which the
Releasors, or any persons who claim by, or under the Re[easors, .or
may have against the Releasees shall - be forever released, . remised, acquitted, waived,
satisfied and= forever discharged, and Releasors shall be forever barred from bringing or
asserting the same in their own 'name or =names, jointly, or with, or through any other
person, natural, corporate or otherwise.
Releasors acknowledge that it is their intention that,. upon `execution'hereof, this
General Release - and Waiver shall be effective as a full accord and satisfaction - and
settlement of, and a bar .to, each and-every one of the Claims released hereunder,
whether known or unknown:
Releasors represent and warrant that . no claim which they have or might have
had against Releasees has been assigned or transferred to any other person. or entity,
and agrees to indemnify. 'Releasees :and hold Releasees harmless :from any. and all
liability or expense ,resulting from the assignment or transfer of any such claims.
Releasors :acknowledge and agree thatthis General Release.and Waiver is given
for the. compromise of doubtful and disputed claims, and shall - not be construed as an
admission against interest or admission of .liability on the ,part of - the 'Releasors as to any
claim, counterclaim, demand, controversy, dispute, defense, - action, cause of action, or
thing mentioned herein and compromised -and settled hereby surrounding - the . dispute,
and .that Releasors deny liability. therefor and intend merely to' the .costs of
litigation.
Releasors - confirm that - they are competent and .acknowledge that the terms .of,
this General Release and Waiver are.:contractual - and not a :mere recital. Furthermore,
the Releasorsacknowledge °that Releasors not.been influenced in.:any manner
i making .this General Release and Waiver by any. or staternents. made
�by or on behalf - of the Releasees, that .the - have received the .advice of counsel
in connection with 'the effect of the execution -and delivery -of this General Release, and
Waiver, that the Releasors have carefully read .and fully understand the - contents of , this .
General Release and Waiver, and that the -Releasors have duly authorized the execution
of this General Release and Waiver freely and voluntarily, intending and agreeing to
- fully bound bytheterms hereof.
Page..2 of 4
This General Release and Waiver shall remain in full force and effect and survive
any future .dealings among the Releasers and Releasees, unless .this General Release
and Waiver shall hereafter be modified by an instrument in writing and signed by the
Releasors and by duly authorized. representative(s) of.the Releasees.
IN WITNESS WHEREOF, the Releasors and the Releasees have caused this
General Release and Waiver., to be executed .in their. names and its seal to be: affixed, by
its proper.and duly :authorized representative; this , (,q day of OG�vb 2011.
RELEASORS:
SSES:
Mercedes -Benz Financial Services, USA, LLC
Kim Nguyen, Loss Recovery Team Specialist for
Mercedes -Benz Financial Serv., USA, LLC
STATE OF FLORIDA )
COUNTY OF MIAMI DADE )
HEREBY CERTIFY that on this .date, before me, an officer - duly.:authorized in
this State and County to take acknowledgments, :personally appeared Kim 'Nguyen, Loss
Recovery Team Specialist -for Mercedes -Benz Financial Services, USA, LLC,
1 n OG'U n personally known to me or has produced : identification,
named :in the foregoing - General Release and Waiver, and that she acknowledges
executing the same freely and voluntarily.
'WITNESS my hand and official seal in the County and State last aforementioned `
this, .day of 2011::
My Commission 'Expires:'
o '�•{r F.ita Barger
My Commission Expires Notary Publ State o lorida
.12/13/2011
Page 3 of.4
RELEASEES:
CITY OF MIAMI BEACH,:
a Florida municipal. corporation
.ATTEST:
I
b
Jor*M. Gonzalez, City Manage
t
Robert:Parcher, City Clerk
Dated: - pee e rM Q EiL lo
STATE OF FLORIDA )
COUNTY�OF MIAMI -DADE:
.l HEREBY CERTIFY - that on this date, before me, an officer duly authorized in
his Sta a and County - to take acknowledgments, personally appeared
r ^'°', as City Manager, City of Miami - Beach, personal ly'knownto :me, named in the..
foregoing General Release and Waiver, and :.that he acknowledged executing the same
freely and voluntarily on'behalf of the City.
WITNESS my hand and official :seal 'in the County and State last:aforementioned`
this 4 �day of .P a I r ,,2011
MER14
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My Commission E�\S
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z Notary�u�b ic, Stat of Florida
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APPROVED AS TO F�5'�` !i *
:LANGUAGE AND FOR'EXECUTION:
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