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HomeMy WebLinkAboutSetlement Agreement & Release ORIGINAL SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is made and entered into this/__~ay of October, 2005, by and among the City of Miami Beach (referred to herein as "City") and American Golf Corporation of California, Inc. (referred to herein as "AGC"). The City and AGC are collectively referred to herein as "the Parties". WHEREAS, The City filed an action against AGC in the United States District Court, Southern District of Florida, Miami Division, styled City of Miami Beach v. American Golf Corporation of California, Inc., Case Number: 04-22607-CIV-MARTINEZ-BANDSTRA (referred to herein as the "Action"), seeking cost recovery for alleged environmental contamination at the Bayshore and Normandy golf courses owned by the City of Miami Beach. WHEREAS, AGC denied the allegations contained in the City's Complaint and alleged certain defenses to the City's claims. WHEREAS, the Parties desire to resolve all disputes which may exist between them rather than continue with the Action. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties hereby agree as follows: 1. Settlement. The Parties hereby settle and compromise all claims (including any claims for attorneys' fees or costs) which they have or may have had against each other. 2. Payment. In consideration and exchange for the settlement and releases contained herein, AGC shall pay or cause to be paid to the City, a total of Three-Hundred Seventy- Five Thousand Dollars ($375,000.00) ("Settlement Sum"), by wire transfer made payable to the City of Miami Beach (Receiving Bank Name: Suntrust Bank; ABA number: 061000104; Swift Address: SNTRUS3A; Account Name: City of Miami Beach General Depository; Account Number: 0360002236568) within five (5) days of the City's execution and delivery of this Agreement to AGC. The City hereby acknowledges and agrees that such amount constitutes the entire payment and consideration to be received by the City from AGC regarding any and all matters between the Parties, and that no further consideration or payment is owed to the City, or on its behalf, by AGC. 3. Releases. A. In consideration of the undertakings described above, but expressly excepting the obligations created by, and the rights expressly reserved within, this Settlement Agreement and Release ("Agreement"), the City, and any and all of its administrators, personal representatives, trustees, attorneys, predecessors, successors, assigns, and present and former agents, and each and every one of 3687328v4 them, hereby releases and forever discharges AGC and any and all of its present and former agents, representatives, employees, employers, officers, insurers, directors, stockholders, attorneys, predecessors, successors, assigns, subsidiaries, parents, affiliates and related entities, from any and all claims, debts, liabilities, demands, obligations, costs, attorneys' fees, actions and causes of action of every nature and character and description which the City has held or now holds, whether known or unknown, including, but not limited to, any and all claims for past or future benefits whatsoever arising from or related to any of the claims the City has asserted in the Action, including, but not limited to, all claims for past and future remediation of contamination within the City of Miami Beach or emanating from the City of Miami Beach. The City understands and expressly agrees that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any past actions or omissions of AGC, its agents, representatives, employees, employers, officers, insurers, directors, stockholders, attorneys, predecessors, successors, assigns, subsidiaries, parents, affiliates and related entities, whether set forth in any pleading or charge referred to herein or not, and that any and all fights granted to the City under any state law or federal law or regulation limiting the general nature of this release are hereby expressly waived. B. In consideration of the undertakings described above, but expressly excepting the obligations created by, and the rights expressly reserved within, this Agreement, AGC, and any and all of its present and former agents, representatives, employees, employers, officers, insurers, directors, stockholders, attorneys, predecessors, successors, assigns, subsidiaries, parents and affiliates, including American Golf Corporation, a California corporation ("American"), releases and forever discharges the City and any and all of its administrators, personal representatives, trustees, attorneys, predecessors, successors, assigns, and present and former agents, from any and all claims, debts, liabilities, demands, obligations, costs, attorneys' fees, actions and causes of action of every nature and character and description which AGC and/or American has held or now holds, whether known or unknown; AGC and American understand and expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any past actions or omissions of the City, and any and all of its administrators, personal representatives, trustees, attorneys, predecessors, successors, assigns, and present and former agents, whether set forth in any pleading or charge referred to herein or not, and that any and all rights granted to AGC under any state law or federal law or regulation limiting the general nature of this release are hereby expressly waived. 4. Warranties. A. The Parties warrant that this Agreement covers claims and causes of action whether they be under theories of tort, contract, statute or otherwise. The Parties further acknowledge that this Agreement covers claims for any form of damages, whether compensatory, punitive, statutory, or otherwise, and includes -2- 3687328v4 claims and causes of action for all forms of costs, fees, or expenses as of the date of this Agreement. The Parties further acknowledge that they may discover facts and legal theories in addition to or different from those of which it is now aware. Claims, causes of action, and suits arising out of any or all matters released herein that are based upon facts or legal theories unknown as of the date of this Agreement are barred by this Agreement. The Parties further waive the right to rely upon any statute, rule, or common-law doctrine which precludes the release of claims, causes of action, or suits arising from facts which are not known or are different from those known when a release is executed. B. The City warrants that it is the sole owner of the rights asserted in the Action and that it has made no assignment of any of those rights. The Parties warrant that there has been no assignment, negotiation, hypothecation or other transfer or alienation of any cause of action, or of any other rights, obligations, liabilities, demands or claims existing between the Parties or which could be asserted by the Parties. 5. Stipulation of Dismissal. The City hereby represents and warrants that, within five (5) days of the receipt of the Settlement Sum by City Attorney, its counsel will execute and file a Stipulation of Voluntary Dismissal With Prejudice of the Action in the form attached hereto as Exhibit "A". The City and AGC agree that each party shall bear their own costs and attorneys' fees in connection with the Action, this Agreement and the matters and documents referred to herein and all related matters. 6. No Admissions. This Agreement is expressly agreed to be in compromise of disputed claims, and neither the payments nor the releases contained herein are to be construed as admissions of liability on the part of the City or AGC, which liability is expressly denied. 7. Integration. This Agreement contains the entire Agreement between the Parties, and the terms of this Agreement are contractual and not a mere recital. The Parties agree that all prior negotiations and understandings between the Parties have been merged herein and that this Agreement may not be modified or changed, except by a writing signed by a duly authorized representative of each Party. 8. Bindin~ Nature. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their legal representatives, successors and assigns. The Parties represent and acknowledge that each has been given the opportunity to -3- 3687328v4 independently review this Agreement with legal counsel, has agreed to the particular language of the provisions hereof and has fully participated in the drafting of this Agreement. In the event of any ambiguity in or dispute regarding the interpretation of any provision of this Agreement, such dispute shall not be resolved by any rule of construction providing for interpretation against the party who causes the ambiguity, or against the drafter. The Parties hereto expressly agree that in the event of ambiguity or dispute regarding the interpretation of this Agreement, the Agreement will be interpreted as if each Party hereto participated in the drafting hereof which, in fact, has been the case. The "WHEREAS" clauses set forth above are an integral part of this Agreement and are hereby incorporated and made a part hereof as though fully set forth herein. 9. Counterparts.. This Agreement may be executed in counterparts, both of which shall be deemed an original, and the counterparts shall together constitute one and the same agreement, notwithstanding that the Parties are not signatories to the original or the same counterpart. Facsimile signatures shall be deemed as effective as original signatures. 10. Dispute Resolution. Except as otherwise provided for in this Agreement, any dispute arising out of this Agreement or its terms shall be resolved exclusively through judicial proceedings brought in the United States District Court for the Southern District of Florida, Miami Division, and shall be governed by the laws of the State of Florida without regard to conflict of law principles. 11. Attorneys' Fees and Costs. In the event that any action is instituted to enforce any term of this Agreement, to seek a declaration as to, or to assert, by way of defense, any term of this Agreement, the prevailing party in such action shall recover from the losing party its reasonable attorneys' fees and costs incurred in such action. 12. Tax Consequences. Except as may be set forth in this Agreement, no statement or representation, written or oral, express or implied, has been made to the City, or any of its agents, representatives, employees, attorneys, or any other person, by AGC, or any of its respective agents, representatives, employees, attorneys, officers, directors, or any other person regarding any matter, including, but not limited to, the federal or state income tax consequences of the Agreement to any Party, including, but not limited to, the tax treatment of the monies to be received by the City pursuant to this Agreement. The City expressly acknowledges and agrees that it has relied -4- 3687328v4 solely upon the advice of its own attorneys and/or accountants as to the tax consequences of the Agreement. 13. Authority. to Execute. The Parties each represent and warrant to the other that they have the authority to enter into this Agreement, that any person executing this Agreement in a representative capacity is duly authorized to do so, and that each person executing this Agreement in a representative capacity represents, warrants and covenants that he/she is duly authorized to do so pursuant to appropriate bylaw or resolution or other authority. THE PARTIES HEREBY DECLARE THAT EACH HAS FULLY AND COMPLETELY READ THE TERMS OF THIS AGREEMENT AND THAT EACH PARTY FULLY UNDERSTANDS AND VOLUNTARILY ACCEPTS THESE TERMS FOR THE PURPOSE OF MAKING A FULL AND FINAL SETTLEMENT OF ITS CLAIMS AGAINST THE OTHER PARTY, AND FOR THE EXPRESS PURPOSE OF PRECLUDING FOREVER ANY CLAIMS AGAINST THE OTHER PARTY, WHETHER IN TORT, CONTRACT OR OTHERWISE, CONCERNING THE ISSUES RAISED IN THE ACTION NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION, UNDER THE CAPTION "CITY OF MIAMI BEACH V. AMERICAN GOLF CORPORATION OF CAI JlFORNIA, INC., CASE NUMBER: 04-22607- CIV-MARTINEZ-BANDSTRA." IN WITNESS WHEREOF, the Parties hereto have affixed, or caused to be affixed, their respective signatures, effective on the day and year first written above. Date: o~/g~5;7'0~'/~ ~ CITY OF MIAMI BEACH Attest: ~i! RGE GONZ~E~J~~~ By: ~'~/ Clerk Approved as to form and language for execution City Attorney -5- 3687328v4 STATE OF FLORIDA ) ) SS.: COUNTY OF ~//~I-,~APg ) On this 6~/'r~day of ~Fd/~c-/~ , 2005, before me personally appeared Jorge M. Gonzalez, who 4] al,4___ [Jr~ _._'t;'l ...... ,~,,, ,~lro ~n cmth and ,,,~..., ,,r~ is personally known to me [] has produced A//~ as identification to be the person described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. m~rt £. ~re~r Expir~ Apd107, 2008 Notary Public FSatto~HELG\LITIGATBAmGoltXSettlement Agreement (Final Version) (2).DOC -6- 3687328v4 Date: AMERICAN G~CORPORATION MAR~ FRiEdMAN ' ' General ~ msel STATE OF CALIFORNIA ) ) SS.: COUNTY OF LOS ANGELES ) 1. On this/'/~'/'}day of~~ , 2005, before me personally appeared Mark Friedman, General Counsel, on behalf of American Golf Corporation of California, Inc., who ~ did [;I did not take an oath and who ~is personally known to me [] has produced as identification to be the person described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. -7- 3687328v4