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HomeMy WebLinkAbout2008-064 . . 1 RESOLUTION NO. 2008-64 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A COMPROMISE AND 3 SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, THE INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC., AND 4 DIAMOND CONCESSIONS, INC. FOR THE SETTLEMENT OF PENDING LITIGATION AND RELATED CONTRACTUAL DISPUTES. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 8 to execute on behalf of said City a Compromise and Settlement Agreement between the City of San 9 Bernardino, the Inland Empire 66ers Baseball Club of San Bernardino, Inc., and Diamond 10 Concessions, Inc. for the settlement of pending litigation and related contractual disputes, a copy of 11 which Agreement is attached hereto marked Exhibit "A" and incorporated herein by reference as 12 fully as though set forth at length. 13 SECTION 2. The authorization granted by this Resolution shall expire and be void and 14 of no further effect if said Compromise and Settlement Agreement is not executed by all parties and 15 returned to the Office ofthe City Clerk within sixty (60) days following the effective date ofthis 16 Resolution. 17 1// 18 /1/ 19 1// 20 /1/ 21 1// 22 /1/ 23 /1/ 24 /1/ 25 /1/ 26 /1/ 27 1// 28 1// 66ers-settlement-resolution 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A COMPROMISE AND 2 SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, THE INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC., AND 3 DIAMOND CONCESSIONS, INC. FOR THE SETTLEMENT OF PENDING LITIGATION AND RELATED CONTRACTUAL DISPUTES. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and joint 6 Common Council of the City of San Bernardino at a re,zular meeting thereof, held on the19t 7 day of Februarv , 2008, by the following vote, to wit: 8 COUNCIL MEMBERS: 9 ESTRADA AYES NAYS ABSTAIN ABSENT --1L- 10 BAXTER --1L- 11 BRINKER --1L- 12 DERRY --X- 13 KELLEY --X- 14 JOHNSON 15 MC CAMMACK --X- --X- 16 17 ~A1.~ Ra I Clark, City Clerk 18 19 20 The foregoing Resolution is hereby approved thisoAJwaay of Februarv2008. 21 23 22 24 Approved as to form: 25 JAMES F. PENMAN, City Attorney 26 28 1.f~ 27 2 66ers-settlement-resolution 2008-64 EXHIBIT "A" COMPROMISE AND SETTLEMENT AGREEMENT The parties to this Compromise and Settlement Agreement 1. Parties. ("Agreement") are: 1.1. City of San Bernardino, California, a charter city ("City"); 1.2. Diamond Concessions, Inc., a California corporation, for itself and doing business as Diamond Creations ("Diamond"); and 1.3. Inlarld Empire 66ers Baseball Club of San Bernardino, Inc., a California corporation formerly known as San Bernardino Stampede, Inc. ("66ers"). City, Diamond and 66ers are sometimes collectively referred to in this Agreement as the "Parties. " 2. Purpose. The Parties' purpose in entering into this Agreement is to resolve finally and completely each of the disputes and lawsuits set forth in Section 3 of this Agreement, including any and all claims arising out ofthe subject matter ofthose disputes, whether known or unknown. 3. Disputes and Lawsuits to be Resolved. 3.1. 1996 Real Propertv Lease. City, as lessor, and 66ers as lessee, are parties to a real property lease entered into on or about June 18, 1996 and amended from time to time thereafter ("Lease"). Disputes have arisen between City and 66ers concerning their respective rights and obligations under the Lease for the 66ers' fiscal years ending September 30th of 2004, 2005, and 2006. The disputes concerning the 2004 and 2005 fiscal years are the subject of the lawsuit entitled City of San Bernardino v. San Bernardino Stampede, Inc., Case 2008-64 No. SCVSSI37723, now pending in the Superior Court of California for the County of San Bernardino ("Case No. 137723"). 3.2. 2003 Concessionaire Agreement. City and Diamond, doing business as Diamond Creations, entered into a Concessionaire Contractual Agreement on or about August 20, 2003, concerning the operation of food concessions by Diamond at the San Bernardino Soccer Complex ("2003 Concessionaire Agreement"). Disputes have arisen between City and Diamond concerning their respective rights and obligations under the 2003 Concessionaire Agreement. Those disputeS are the subject of the lawsuit entitled City of San Bernardino v. Diamond Creations, Case No. CIVSS705139, now pending in the Superior Court of California for the County of San Bernardino ("Case No. 705139"). 3.3 2004 Concessionaire Agreement. City and Diamond entered into a Concessionaire Contractual Agreement on or about December 22, 2004, concerning the operation of food concessions by Diamond at the San Bernardino Soccer Complex ("2004 Concessionaire Agreement"). Disputes have arisen between City and Diamond concerning their respective rights and obligations under the 2004 Concessionaire Agreement. Those disputes are the subject of the lawsuit entitled Diamond Concessions, Inc. v. City of San Bernardino, Case No. CIVSS700129, now pending in the Superior Court of California for the County of San Bernardino ("Case No. 700129"). 4. Mutual Promises and Agreements. In consideration of the mutual promises and agreements set forth in this Agreement, the Parties promise and agree as follows: 4.1. City promises and agrees that within ten (10) days ofthe effective date of this Agreement, City will cause to be filed with the court having jurisdiction of Case No. 137723 a Request for Dismissal of Case No. 137723 requesting dismissal ofthe entire action with DAD/cj(CompromiseSettlement.Agrmt] 2 COMPROMISE AND SETTLEMENT AGREEMENT 2008-64 prejudice, provided, however, that the Request for Dismissal shall state that the court is requested to retain jurisdiction over the parties to that action pursuant to California Code of Civil Procedure section 664.6 for the sole purpose of enforcing this Agreement, until performance in full of the terms of this Agreement. 4.2. City promises and agrees that it will not seek to recover any amounts claimed to be owed to City by 66ers under the Lease for the 66ers' fiscal years ending September 30th of2004, 2005, or 2006, except the amount to be paid to City under Section 4.5 ofthis Agreement. 4.3. City promises and agrees that within ten (10) days of the effective date of this Agreement, City will cause to be filed with the court having jurisdiction of Case No. 705139 a Request for Dismissal of Case No. 705139 requesting dismissal of the entire action with prejudice, provided, however, that the Request for Dismissal shall state that the court is requested to retain jurisdiction over the parties to that action pursuant to California Code of Civil Procedure section 664.6 for the sole purpose of enforcing this Agreement, until performance in full of the terms ofthis Agreement. 4.4. City promises and agrees that it will not seek to recover any amounts claimed to be owed to City by Diamond under the 2003 Concessionaire Agreement or the 2004 Concessionaire Agreement, except the amount to be paid to City under Section 4.5 ofthis Agreement. 4.5. Diamond and 66ers promise and agree that within ten (10) days of the effective date of this Agreement, they or either of them or their designee will cause to be delivered to City the sum of sixty-five thousand U.S. dollars ($65,000.00) by check made payable to "City of San Bernardino." DAD/cj[CompromiseSettlement.Agrmt] 3 COMPROMISE AND SETTLEMENT AGREEMENT 2008-64 4.6. 66ers promises and agrees that it will not seek to recover any amounts claimed to be owed to 66ers by City under the Lease for the 66ers' fiscal years ending September 30th of 2004, 2005, or 2006. 4.7. Diamond promises and agrees that within ten (10) days of the effective date of this Agreement, Diamond will cause to be filed with the court having jurisdiction of Case No. 700129 a Request for Dismissal of Case No. 700129 requesting dismissal of the entire action with prejudice, provided, however, that the Request for Dismissal shall state that the court is requested to retain jurisdiction over the parties to that action pursuant to California Code of Civil Procedure section 664.6 for the sole purpose of enforcing this Agreement, until performance in full of the terms ofthis Agreement. 4.8. Diamond promises and agrees that it will not seek to recover any amounts claimed to be owed to Diamond by City under the 2003 Concessionaire Agreement or the 2004 Concessionaire Agreement. 5. Mutual Releases: Renegotiation of Lease. The Parties mutually release one another and their owners, lessees, heirs, assigns, successors in interest, subsidiaries, elected officials, officers, directors, attorneys, agents, and employees from any and all claims, obligations, or other liability arising under the Lease for the 66ers' fiscal years ending September 30th of 2004, 2005 or 2006, under the 2003 Concessionaire Agreement, or under the 2004 Concessionaire Agreement. Neither City nor 66ers' shall be deemed to have waived or otherwise relinquished any other right under the Lease, including but not limited to the right to enforce any term of the Lease for the 66ers' fiscal years ending September 30, 2007 or thereafter. However, City and 66ers promise and agree that after the execution of this Agreement they will meet and confer for the purpose of renegotiating the Lease and will use their best efforts to amend the DAD/cj[CompromiseSettlement.Agrmt) 4 COMPROMISE AND SETTLEMENT AGREEMENT 2008-64 Lease as necessary to eliminate the disputes that have arisen between them concerning their respective rights and obligations under the Lease. 6. Waiver of California Civil Code Section 1542. The Parties expressly acknowledge that they are aware of the provisions of California Civil Code section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor." Being aware of that code section, the Parties expressly waive any rights they may have under that code section, as well as under any other statutes or common law principles of similar effect, except as otherwise expressly provided in this Agreement. 7. No Admission of Liabilitv. The Parties mutually agree that by agreeing to the terms set forth in the Agreement and by executing this Agreement: 7.1. City admits no liability to Diamond or 66ers. 7.2. City shall not be deemed to have agreed with any factual or legal contention asserted by, or any position taken by, Diamond or 66ers. 7.3. Diamond and 66ers admit no liability to City. 7.4. Diamond and 66ers shall not be deemed to have agreed with any factual or legal contention asserted by, or any position taken by, City. 8. Entire Agreement. This Agreement sets forth the entire agreement of the Parties concerning the subject matter of this Agreement. This Agreement supersedes any and all discussions, understandings, or representations of any ofthe Parties concerning the subject matter of this Agreement. DAD/cj[CompromiseSettlernent.Agrmt] 5 COMPROMISE AND SETTLEMENT AGREEMENT - 2008-64 9. Amendment: Modification. This Agreement shall not be amended or modified except in a writing executed by all ofthe Parties and stating the intent of the parties to amend or modify this Agreement. Any amendment or modification of this Agreement on behalf of City must be approved by the Common Council of City. 10. Parties' Reoresentations and Warranties; Hold Harmless. 10.1. Each of the Parties represents and warrants that the person(s) executing this Agreement on its behalf has the authority to do so. 10.2. City represents and warrants that there has been no assigrunent or other transfer of any interest in any claim of City against either Diamond or 66ers that is being released by City under this Agreement. City agrees to indemnify and hold Diamond and 66ers harmless from any liability, claims, demands, damages, costs, expenses, and attorney fees incurred by Diamond or 66ers as a result of any person asserting any such assigrunent or transfer. This indemnity shall not require payment as a condition precedent to recovery under this indemnity. 10.3. Diamond and 66ers represent and warrant that there has been no assigrunent or other transfer of any interest in any claim of either Diamond or 66ers against City that is being released by either Diamond or 66ers under this Agreement. Diamond and 66ers agree to indemnify and hold City harmless from any liability, claims, demands, damages, costs, expenses, and attorney fees incurred by City as a result of any person asserting any such assigrunent or transfer. The costs, salaries, and expenses of the City Attorney of City and members of his office shall be considered "attorney fees" for purposes of this section. This indemnity shall not require payment as a condition precedent to recovery under this indemnity. II. Choice of Law; Construction. This Agreement shall be interpreted DAD/cj(CompromiseSettlement.Agnnt] 6 COMPROMISE AND SETTLEMENT AGREEMENT " 2008-64 according to the laws of the State of California. This Agreement shall be construed to have been jointly prepared by the Parties, and any uncertainties or ambiguities in this Agreement shall not be construed against any particular party. Any notice given to any of the Parties for any purpose under this 12. Notices. Agreement shall be valid if given at the following addresses: To City City of San Bernardino Office of the City Manager 300 North "D" Street San Bernardino, California 92418 To 66ers Inland Empire 66ers Baseball Club of San Bernardino, Inc. c/o Fullerton, Lemann, Schaefer & Dominick, LLP 215 North D Street, First Floor San Bernardino, California 92401-1712 To Diamond Diamond Concessions, Inc. c/o Fullerton, Lemann, Schaefer & Dominick, LLP 215 North D Street, First Floor San Bernardino, California 92401-1712 13. Attornev Fees and Costs. If any.party to this Agreement sues to enforce this Agreement, the prevailing party in the suit shall be entitled to recover, in addition to any other relief, its costs and expenses incurred in the suit, including court costs and attorney fees. The costs, salaries, and expenses of the, City Attorney of City and members of his office shall be considered "attorney fees" for purposes of this Section. DAD/cj[CompromiseSettlement.Agrmt] 7 COMPROMISE AND SETTLEMENT AGREEMENT , III 14. Effective Date. the Parties. DATED: ~ 02../ ,2008 APPROVED AS TO FORM: ?~ sF. Penman Attorney ,2008 DATED: ,2008 DAD/cj[CompromiseSettlement.Agrmt] ~ 2008-64 This Agreement shall be effective upon execution by all of CITY OF SAN BERNARDINO ~'<v--~ M yor Patrick J. 's INLAND EMPIRE 66ers BASEBALL CLUB OF SAN BERNARDINO, INC. By ~(/AfJ j). ckllt DIAMOND CONCESSIONS, INC., for itself and doing business as Diamond Creations By: $fl;!Jt f~_ COMPROMISE AND SETTLEMENT AGREEMENT 8