HomeMy WebLinkAbout33-City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Compromise and Settlement Agreement
City Attorney between the City of San Bernardino,the Inland Empire
66ers Baseball Club of San Bernardino, Inc., and
Dept: CITY ATTORNEY Diamond Concessions,Inc.for the settlement ofpending
litigation and related contractual disputes.
Date: February 19,2008
Synopsis of Previous Council Action:
On January 22,2008,the Mayor and Common Council approved the settlement of three pending litigation
matters, and a related contractual dispute, between the City of San Bernardino, the Inland Empire 66ers
Baseball Club of San Bernardino,Inc., and Diamond Concessions, Inc.
Recommended motion:
That the accompanying resolution, authorizing the execution of a Compromise and Settlement Agreement
between the City of San Bernardino, the Inland Empire 66ers Baseball Club of San Bernardino, Inc., and
Diamond Concessions,Inc.,be adopted. J�e 2
James F. Penman
t J
Contact person: James F. Penman Phone: 5255
Supporting data attached: Staff Report Ward: 3. 7
FUNDING REQUIREMENTS: Amount: N/A —payment to City
Source: N/A
Finance:
Council Notes:
LSD 4
Agenda Item No.
C2// q ��
66ers-settlement-req-council-action
STAFF REPORT
Council Meeting Date: February 19, 2008
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 15, 2008
AGENDA ITEM: Compromise and Settlement Agreement between the City of San
Bernardino, the Inland Empire 66ers Baseball Club of San
Bernardino, Inc., and Diamond Concessions, Inc. for the
settlement of pending litigation and related contractual disputes.
The City of San Bernardino is a party to the following pending litigation matters:
1. City of San Bernardino v. San Bernardino Stampede, et al. —San Bernardino
County Superior Court Case Number SCVSS137723. This matter arises from a lease
between the City and the Inland Empire Hers baseball team for the use of the City's
baseball stadium. The lease will expire in 2011, subject to an option by the Hers to renew
the lease for an additional five years. The parties disagree on the interpretation of lease
provisions dealing with the sharing of certain operating costs. Despite numerous efforts
over the past five years, the parties have been unable to resolve their disputes, and each
party claims it is owed money by the other party under the lease.
2. Diamond Concessions, Inc. v. City of San Bernardino, et al. — San
Bernardino Superior Court Case No. CIVSS700129. This matter arises from a contract
between the City and Diamond Concessions, Inc., an affiliate of the 66ers, under which
Diamond acted as food concessionaire at the City's soccer complex. Diamond contends
the City violated the contract by dealing directly with Diamond's subcontractors and other
competing vendors, and by removing Diamond as concessionaire, causing Diamond to
lose substantial commissions and profits. The City contends Diamond failed to perform
its obligations under the contract. Despite repeated efforts in 2005 and 2006 to settle the
dispute, the parties were unable to resolve their differences and the City formally
terminated the contract in September 2006.
3. City of San Bernardino v. Diamond Creations, et al. — San Bernardino
Superior Court Case No. CIVSS705139. This matter arises from another contract between
the City and Diamond Concessions, Inc., doing business as Diamond Creations, under
which Diamond acted as food concessionaire at the City's soccer complex. The City
contends Diamond improperly calculated subcontractor commissions owed to the City
under the contract.
66ers-settlement-staff-reporQ
After considering (1) the issues and amounts in controversy, (2) the chances of
prevailing, (3) the costs of continued litigation, and (4) the mutual willingness of the City
and the 66ers to attempt to renegotiate the lease to avoid future disputes if the current
litigation can be settled, the Mayor and Common Council on January 22, 2008 approved
a global settlement of the litigation matters and of a related dispute arising from the lease
that would result in an additional litigation matter if not settled. The Hers and/or Diamond
have agreed to pay the City $65,000.00 as consideration for the settlement. The City will
not be required to pay any amount to the Hers or Diamond. None of the parties is
required to admit any liability to any other party or to concede the correctness of any other
party's position. As part of the settlement, the City and the Hers have agreed to confer
for the purpose of attempting to agree on an amendment to the lease that will avoid future
disputes.
Attached hereto is a Compromise and Settlement Agreement providing for the
settlement of the above matters. It is requested by the City Attorney that the floor motion
be adopted so that the Mayor is authorized to execute the Compromise and Settlement
Agreement on behalf of the City of San Bernardino.
Recommended Motion: That the Mayor of the City of San Bernardino is hereby
authorized and directed to execute on behalf of the City of San Bernardino the
Compromise and Settlement Agreement.
66ers-settlement-staff-reporQ
1 RESOLUTION NO. o ®
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 I. 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
1 o 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 of the City Clerk within sixty(60) days following the effective date of this
16 Resolution.
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66ers-se ttlement-reso l ution
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
s I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a meeting thereof, held on the_
7 day of , 2008, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
lo BAXTER
11 BRINKER
12 DERRY
i
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17
Rachel Clark, City Clerk
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20 The foregoing Resolution is hereby approved this_day of , 2008.
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22
PATRICK J. MORRIS, Mayor
23 City of San Bernardino
24 Approved as to form:
25 JAMES F. PENMAN,
City Attorney
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66ers-settlement-re so I ution
Exhibit "A"
COMPROMISE AND SETTLEMENT AGREEMENT
1. Parties. The parties to this Compromise and Settlement Agreement
("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. Inland 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. PpMose. 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 of the subject matter of those disputes, whether known or
unknown.
3. Disputes and Lawsuits to be Resolved.
3.1. 1996 Real Property 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
30t' 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
No. SCVSS 137723, 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 of the 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 of the entire action with
DAD/cj(CompromiseSettlement.Agrmt)
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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
30" of 2004, 2005, or 2006, except the amount to be paid to City under Section 4.5 of this
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 of this 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 of this
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 (565,000.00) by check made
payable to "City of San Bernardino."
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('nMPR()MI4ZP AXTn Ql T=T CAAF;XIT A(_DV:TAAC\Tr
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
30" 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 of this 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
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CCIMPRCIMISF ANr)¢FTTI FMFNT enuFFn.rcrr-r
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 Liability. 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 of the Parties concerning the subject
matter of this Agreement.
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9. Amendment; Modification. This Agreement shall not be amended or modified
except in a writing executed by all of the 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' Representations 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 assignment 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 assignment 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
assignment 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
assignment 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.
E
11. Choice of Law; Construction This Agreement shall be interpreted
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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.
12. Notices. Any notice given to any of the Parties for any purpose under this
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. Attorney 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 tCompromi seSettlement.Agrmt)
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CnMPRnMISF ANr)SFTTI FMFNT A(:RFFAAPNTT
14. Effective Date. This Agreement shall be effective upon execution by all of
the Parties.
DATED: , 2008 CITY OF SAN BERNARDINO
By:
Mayor Patrick J.Morris
APPROVED AS TO FORM:
James F. Penman
City Attorney
DATED: , 2008 INLAND EMPIRE 66ers BASEBALL
CLUB OF SAN BERNARDINO, INC.
By:
DATED: 32008 DIAMOND CONCESSIONS, INC., for
itself and doing business as Diamond
Creations
2t
By:
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COMPROMISE AND SETTLEMENT AGREEMENT
t
COMPROMISE AND SETTLEMENT AGREEMENT
I. Parties. The parties to this Compromise and Settlement Agreement
("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. Inland 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 of the subject matter of those disputes, whether known or
unknown.
3. Disputes and Lawsuits to be Resolved.
3.1. 1996 Real Property 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
30`h 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
No. SCVSS137723, now pending in the Superior Court of California for the County of San
Bernardino ("Case No. 137723").
3.2. 200') 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 of the 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 of the entire action with
DAD/cj[CompromiseSettlement.Agrmtl
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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
30t' of 2004, 2005, or 2006, except the amount to be paid to City under Section 4.5 of this
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 juri sdiction 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.
4.4. 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 of this
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."
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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 of this 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
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rnMPRnMICF ANTI CFTTT FAAPNIT A(:DGF;hAEXTT
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 Liability. 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 of the Parties concerning the subject
matter of this Agreement.
DAD/cj[CompromiseSettlement.Agrmt)
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9. Amendment; Modification. This Agreement shall not be amended or modified
except in a writing executed by all of the 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' Representations 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 assignment 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 assignment 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
assignment 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
assignment 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.
11. Choice of Law; Construction. This Agreement shall be interpreted
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COMPROMISE AND SFTTI.FMFNT AGRFFMPNT
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.
12. Notices. Any notice given to any of the Parties for any purpose under this
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. Attorney 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[Compromi seSettlemen t.Agrmt]
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14. Effective Date. This Agreement shall be effective upon execution by all of
the Parties.
DATED: , 2008 CITY OF SAN BERNARDINO
By:
Mayor Patrick J.Morris
APPROVED AS TO FORM:
J s F. Penman
Cit Attorney
DATED: , 2008 INLAND EMPIRE 66ers BASEBALL
CLUB OF SAN BERNARDINO, INC.
By:
DATED: , 2008 DIAMOND CONCESSIONS, INC., for
itself and doing business as Diamond
Creations
By.
DAD/cj[CompromiseSettlement.Agrmt]
8