HomeMy WebLinkAboutC-8762-1 - Settlement and Mutual ReleaseSETTLEMENT AND MUTUAL RELEASE
This Settlement and Mutual Release (this "Agreement") is made and entered into
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and HOAG MEMORIAL HOSPITAL PRESBYTERIAN, a California
nonprofit public benefit corporation ("Hoag"). City and Hoag may be referred to collectively
as "Parties" or individually as "Party."
RECITALS
A. From 2013 through 2020, Hoag facilities generated numerous false fire
alarms ("False Alarms"). The City Fire Marshal met with Hoag staff to address the issues
causing the False Alarms. Improvements were made to Hoag facilities to improve fire
alarm infrastructure and to train Hoag staff how to properly manage the fire alarm
infrastructure. The improvements were completed in September of 2020, resulting in a
significant decrease in the number of false fire alarms. As a result of the improvements,
the City Fire Marshal determined that the cause of false fire alarms have been adequately
corrected to the City's satisfaction.
B. Pursuant to Newport Beach Municipal Code ("NBMC") Chapter 5.49.070, a
false fire alarm penalty applies to each of the False Alarms. Although the issues causing
the False Alarms have been addressed, there remains an outstanding amount of fines
accumulated by Hoag for the False Alarms.
C. The Parties disagree on the amount of fines due for the False Alarms.
D. The Parties now desire to enter into this Agreement in order to fully and
finally resolve any and all disputes, rights, and claims between them in regards to the
False Alarms upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration the receipt and adequacy of which is hereby acknowledged, the
Parties hereby agree as follows:
AGREEMENT
1.0 Release and Discharge
1.1 In consideration of the payments set forth in Section 2, each Party hereby
completely releases and forever discharges the other Party from any and all past, present
or future claims, demands, obligations, actions, causes of action, rights, damages, costs,
losses of services, expenses and compensation of any nature whatsoever, whether
based on a tort, contract or other theory of recovery, which the Party now has, or which
may hereafter accrue or otherwise be acquired, in each instance, to the extent on account
of, arising out of, related to and/or in connection with, the False Alarms (the "Fire Alarm
Release and Discharge").
1.2 This Fire Alarm Release and Discharge shall also apply to the Parties past,
present, and future officers, directors, stockholders, attorneys, agents, servants,
representatives, employees, volunteers, subsidiaries, affiliates, insurers, re -insurers,
partners, predecessors and successors in interest, and assigns, and all other persons,
firms or corporations with whom any of the former have been, are now, or may hereafter
be affiliated.
1.3 This Fire Alarm Release and Discharge, on the part of each Party, shall be
a fully binding and complete settlement among the Parties and binding upon the Parties
respective heirs, assigns, and successors.
1.4 It is understood and agreed by the Parties that this Agreement is a
compromise of a disputed claim, and payments made in accordance with the same are
not to be construed as an admission of liability which is expressly denied.
1.5 With respect to the Fire Alarm Release and Discharge, each Party hereby
waives any and all rights based upon the provisions of California Civil Code Section 1542,
which reads as follows:
A general release does not extend to claims that the creditor
or releasing party does not know or suspect to exist in his or
her favor at the time of executing the release and that, if
known by him or her, would have materially affected his or her
settlement with the debtor or released party.
1.6 Each Party to this Agreement expressly agrees that neither they nor their
heirs, assigns, executors, administrators, agents, employees, affiliates, managers,
owners, or successors, will continue and/or institute any legal or administrative
proceedings against the other Party, or any person or entity released in this Agreement,
before any court, administrative agency, arbitrator, or any other tribunal whatsoever, by
reason of any claim, liability or cause of action, whether known or unknown, being
released by the Fire Alarm Release and Discharge set forth herein. Further, neither
Party shall aid, cause, or otherwise encourage others, to make, assert, or maintain any
action, demand, or lawsuit against the other Party, its partners, agents, affiliated entities,
successors, employees, heirs, insurers, attorneys, or representatives in connection with
the False Alarms.
2.0 Consideration
In consideration of the Fire Alarm Release and Discharge, Hoag agrees to pay to
City the sum of Ninety Thousand Dollars and 00/100 ($90,000.00). This amount shall be
payable to the City of Newport Beach in two (2) installments of Forty Five Thousand
Dollars and 00/100 ($45,000.00) each, the first payment due upon full execution of this
Agreement, and the second payment due by January 15, 2022.
3.0 Attorney's Fees and Costs
Each Party shall bear its own attorneys' fees and costs arising out of, in connection
with, or related to the False Alarms and all related matters thereto, including but not limited
to, the negotiation and approval of this Agreement. In the event of any dispute or legal
action arising under this Agreement, the prevailing party shall not be entitled to attorneys'
fees.
4.0 Representation of Comprehension of Document
By entering into this Agreement, each Party represents that: it has relied upon the
advice of its attorney concerning this Agreement; that the terms of this Agreement have
been completely read and explained to it; and that the terms of this Agreement are fully
understood and voluntarily accepted by it.
5.0 Governing Law and Venue
This Agreement shall be construed and interpreted in accordance with the laws of
the State of California, and all disputes regarding this Agreement shall be brought in the
Superior Court of the State of California, Orange County
6.0 Additional Documents
Each Party agrees to cooperate fully with the other Party and execute any and all
supplementary documents and to take all additional actions that may be necessary or
appropriate to give full force and effect to the basic terms and intent of this Agreement,
including without limitation, the False Alarm Release and Discharge contained herein.
7.0 Representations and Warranties
Each Party represents and warrants that it is the sole owner of and has not
assigned or transferred (voluntarily, involuntarily or by operation of law), or purported to
assign or transfer, to any person, entity or institution, any rights or claims encompassed
by, involved in, or referred to herein.
8.0 Entire Agreement, Amendments, Waiver
This Agreement contains the entire agreement between the Parties with regard to
the matters set forth herein. This Agreement may be modified or amended only by a
written document executed by each Party and approved as to form by the City Attorney.
A waiver by either Party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein, whether of the same or a different
character.
3
9.0 Severability
If any portion of this Agreement is found or held to be unenforceable, such portion
shall be deemed canceled. However, such cancellation shall not affect the enforceability
of any of the other terms, conditions or provisions of this Agreement.
10.0 Effectiveness
This Agreement shall become effective immediately following full execution by
each Party.
11.0 Incorporation of Recitals
The recitals set forth above are incorporated into this Agreement as if fully set forth
herein.
12.0 Representation by Counsel
Each Party acknowledges and agrees that it has been represented by counsel and
has had a reasonable opportunity to discuss this Agreement with its counsel. Each Party
further represents and warrants that it has the authority and capacity to execute this
Agreement, does so knowingly and voluntarily, and does so in the absence of any
mistake, duress or coercion. Each Party also acknowledges and agrees that the
provisions of this Agreement have been fully negotiated by the Parties and their counsel,
and no statute or rule of interpretation requiring construction against the drafter of the
contract shall apply to this Agreement.
13.0 Authority
Each of the individuals executing this Agreement represents and warrants that he
or she has the authority to enter into this Agreement on behalf of the Party they represent.
14.0 Execution in Counterparts
This Agreement may be executed as a single original or in any number of counterparts,
each of which shall be deemed to be an original and which, taken together, shall be
deemed to be one and the same instrument. Signatures by facsimile or photocopies of
signatures shall be effective as original signatures.
15.0 Enforceability
This Agreement is intended to be binding and enforceable in a court of law, and
shall be binding upon and inure to the benefit of the executors, administrators, personal
representatives, heirs, successors and assigns of each Party.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
CITY:
CITY OF NEWPORT BEACH, a
California municipal corporation and
charter city
Date: AUG 2 6 2021
By:
Gr .Leung
Ci Manager
Al--=C-r.
Dati
APPROVED AS TO FORM:
Date: $z%1/21
By: Id W (P.,
on C. Harp C'M&lk%jz►
C y Attorney
5
HOAG:
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, a California nonprofit
public benefit corporation
Date:
By: sjgf�A6 n Counterpart
Name:
Title:
and
Date:
Y
B : 0.CJounterpart
Name: S►QOe
Title:
APPROVED AS TO FORM.-
(Counsel
ORM:(Counsel for HOAG)
Date:
By: ' G
ou0erpa1�
Name: c� Ooe
tl
Firm:
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
CITY:
CITY OF NEWPORT BEACH, a
California municipal corporation and
charter city
Date:
By:
Grace K. Leung
City Manager
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Date:
By: Id (P.,
on C. Harp uMalk%lzi
CIfy Attorney
5
HOAG:
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, a California nonprofit
public benefit corporation
Date:'/ / 1
By:
Name:
Title:t,,.,x
and oo(z�iW
Date: 21
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APPROVED AS TO FORM:
(Counsel for HOAG)
Dati
By:
Nan
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