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HomeMy WebLinkAbout05059 - ROBERT MILES TRC TEXTRON FINANCIAL CORP SETTLEMENT AGREEMENT AIRPORT HANGAR RENT Robert Miles/TFC Textron Financial Corp — Settlement Agr AGREEMENT#5059 t Council Approved, 2-16-05 SETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (the "Agreement") is entered into by and between the City of Palm Springs (the "City"), Robert Miles ("Miles") and TFC Textron Financial Corporation ("Textron") (collectively referred to as the "Parties")to terminate fully and finally all disputes arising out of, or related to, the City's claims concerning the Airplane defined hereinafter. RECITALS WHEREAS, on February 23, 2004, the City obtained a judgment in the unlawful detainer matter of City of Palm Springs v. Sam Haynes, Superior Court of California, County of Riverside, Case Number INC 040047 for the possession of T-Hangar Number 8 (the "Hangar"), located in Palm Springs International Airport and for an award of costs; WHEREAS, the City thereafter obtained possession of a 1952, Cessna 195 airplane, serial number 7882, registration number N195SH (the "Airplane"), that was abandoned by Mr. Sam Haynes in the Hangar; WHEREAS, the City has asserted a possessory lien and other claims to an interest in said Airplane for payment of its storage costs and for the costs to enforce the City's rights under applicable law, including, but not limited to, California Code of Civil Procedure §§ 1208.61 et seq. and Civil Code §§ 1983 et seq. (the "Claims"); and WHEREAS, Miles represents that he has obtained legal title and the right to exclusive possession to the Airplane through a recent sale by Textron, and all Parties wish to resolve the City's Claims concerning the Airplane at this time. AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terns, conditions, covenants, and agreements contained herein, all Parties hereto agree as follows: 1. Settlement Payment. Textron and Miles agree to collectively pay the City the sum of twelve thousand dollars ($12,000.00) in fall satisfaction of any and all claims for payment by the City concerning the Airplane (the "Settlement Sum"). The form of payment of the Settlement Sum must be an official cashiers or bank check made payable to the City of Palm Springs. Miles shall be provided access to the Airplane at the time of deposit of the Settlement Sum by the City, which shall occur within two (2) business days of receipt of the Settlement Sum. Thereafter, Miles shall remove said Airplane from the Hangar within fifteen (15) calendar days after the date on which the City first provides Miles with access to the Airplane. Initials`�y Each Party -1- E// A&W#33431 v I 2. Release of the Airplane "AS IS". The Airplane shall be released by the City in its present condition, AS IS, after payment of the Settlement Sum as set forth in Paragraph 1. Under this Agreement, the City shall have no obligations to make any repairs or modifications to said Airplane, including, but not limited to, any repairs or modifications that are necessary for the removal and transportation of said Airplane from the Hangar. The City disclaims all warranties, whether express or implied, concerning the Airplane, including, but not limited to, its condition, airworthiness, value, or its fitness for any particular purpose. The City accepts no liability for the Airplane upon release of the same. 3. Title And Right of Possession. Miles and Textron each warrant and represent that Miles has legal title to the Airplane with the Federal Aviation Administration and the exclusive right of possession to said Airplane, and that Miles has purchased title insurance for said Airplane. By executing this Agreement, Miles and Textron each agree to provide the City with documentation reasonably necessary for the City to verify that Miles has the exclusive right of possession and title to said Airplane. However, the Parties agree that the City is under no duty under this Agreement to independently verify the title and right of possession of Miles to said Airplane above and beyond Miles' and Textron's representations in this Agreement. 4. Indemnification. Miles and Textron each agree to assume full responsibility for and risk of bodily injury, death, property damage, claims of interest or ownership in the Airplane and agree to indemnify, defend, protect and to hold harmless the City, including, but not limited to, each of its assignees, agents, directors, officers, employees, representatives, elected or appointed public officials, attorneys, and all persons acting, or any of them (collectively the "Releasees"), from any and all actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature whatsoever, kriown or unknown, fixed or contingent, including all costs and attorneys' fees (hereinafter called "Claims"), which any third parry may make against the Releasees, or any of them, by reason of any matter, cause, or thing relating to the Airplane after the date of execution of this Agreement. The Parties further expressly agree that this indemnification provision is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. 5. Mutual Release. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby mutually release and forever discharge each others respective "Releasees" hereunder, consisting of, where applicable, their elected or appointed public officials, officers, employees, and agents, including, but not limited to each and all of them and (as the case may be) each of their associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, lawyers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature Initial Bach Party -2- A&W N33431 v. 1 whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which the Parties now have or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof for any and all Claims constituting, arising out of, or based upon the Airplane. Provided, however, that nothing in this paragraph shall be interpreted to prevent the Parties from enforcing their respective rights rider this Agreement. 6. Discovery of Different or Additional Pacts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 5 of this Agreement, and expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 7. Release of Unknown Claims. The Release set forth above in Paragraph 5 of this Agreement is a mutual release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have as a result of the Airplane, except for any claims which may arise from the terms of this Agreement. 8. Waiver of Civil Code Section 1542. Further, the Parties expressly agree to waive and relinquish all rights and benefits that it may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: " § 1542. [General release; extent] 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." 9. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each careftilly read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties ftirther specifically represent that prior to signing this Agreement they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 10. Assistance of Counsel. The Parties each specifically represent that they have Ir' iiti4"s 13y Each Party -3- A&W 433431 v. 1 consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 11. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 12. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 13. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity any rights, remedies, obligations or liabilities under or by reason of this Agreement. 14. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 15. Headings. Headings at the beginning of each section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 16. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 17. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. Initials' By 1 ach Party -4- A&W 933431 v. I , 19. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. 20. Authority To Sign. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party and to bind that party, including its members, agents and assigns, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. [SIGNATURE PAGE FOLLOWS] Initiaach Party -5- A&W 933431 v 1 IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release of Claims, on the dates set forth below. Dated: °{ \,%pV �a , 2005 THE CITY OF PALM SPRINGS City Manager �- ATTEST City Clerk Dated: 2005 ROBERT MILES By:� Dated: 2005 TFC TEXTRON FINANCIAL. IF By: \ 7� Kristi Jensen APPROVED AS TO FORM: Dated: 2005 RONALD B. RICH & ASSOCIATES By: RONALD RICH,ESQ. Attorney for Robert Miles and TFC Textron Financial Dated: A0 C \ 91 2005 ALESHIRE & WYNDER, LLP By: �ANTHONY AAAYLde ESQ. Attorneys for the City of Palm Springs -6- SETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (the "Agreement") is entered into by and between the City of Palm Springs (the "City"), Robert Miles ("Miles") and TFC Textron Financial Corporation ("Textron") (collectively referred to as the "Parties")to terminate fully and finally all disputes arising out of, or related to, the City's claims concerning the Airplane defined hereinafter. RECITALS WHEREAS, on February 23, 2004, the City obtained a judgment in the unlawful detainer matter of City of Palm Springs v. Sam Haynes, Superior Court of California, County of Riverside, Case Number INC 040047 for the possession of T-Hangar Number 8 (the "Hangar"), located in Palm Springs International Airport and for an award of costs; WHEREAS, the City thereafter obtained possession of a 1952, Cessna 195 airplane, serial number 7882, registration number N195SH (the "Airplane"), that was abandoned by Mr. Sam Haynes in the Hangar; WHEREAS, the City has asserted a possessory lien and other claims to an interest in said Airplane for payment of its storage costs and for the costs to enforce the City's rights under applicable law, including, but not limited to, California Code of Civil Procedure §§ 1208.61 et seq. and Civil Code §§ 1983 etseq. (the "Claims"); and WHEREAS, Miles represents that he has obtained legal title and the right to exclusive possession to the Airplane through a recent sale by Textron, and all Parties wish to resolve the City's Claims concerning the Airplane at this time. AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, all Parties hereto agree as follows: 1. Settlement Payment. Textron and Miles agree to collectively pay the City the sum of twelve thousand dollars ($12,000.00) in Rill satisfaction of any and all claims for payment by the City concerning the Airplane (the "Settlement Sum"). The form of payment of the Settlement Sum must be an official cashiers or bank check made payable to the City of Palm Springs. Miles shall be provided access to the Airplane at the time of deposit of the Settlement Sum by the City, which shall occur within two (2) business days of receipt of the Settlement Sum. Thereafter, Miles shall remove said Airplane from the Hangar within fifteen (15) calendar days after the date on which the City first provides Miles with access to the Airplane. Initialoy Each Parry -1- A&W#3343I v I 2. Release of the Airplane "AS IS". The Airplane shall be released by the City in its present condition, AS IS, after payment of the Settlement Sum as set forth in Paragraph 1. Under this Agreement, the City shall have no obligations to make any repairs or modifications to said Airplane, including, but not limited to, any repairs or modifications that are necessary for the removal and transportation of said Airplane from the Hangar. The City disclaims all warranties, whether express or implied, concerning the Airplane, including, but not limited to, its condition, airworthiness, value, or its fitness for any particular purpose. The City accepts no liability for the Airplane upon release of the same. 3. Title And Right of Possession. Miles and Textron each warrant and represent that Miles has legal title to the Airplane with the Federal Aviation Administration and the exclusive :right of possession to said Airplane, and that Miles has purchased title insurance for said Airplane. By executing this Agreement, Miles and Textron each agree to provide the City with documentation reasonably necessary for the City to verify that Miles has the exclusive right of possession and title to said Airplane. However, the Parties agree that the City is tinder no duty under this Agreement to independently verify the title and right of possession of Miles to said Airplane above and beyond Miles' and Textron's representations in this Agreement. 4. Indemnification. Miles and Textron each agree to assume full responsibility for and risk of bodily injury, death, property damage, claims of interest or ownership in the Airplane and agree to indemnify, defend, protect and to hold harmless the City, including, but not limited to, each of its assignees, agents, directors, officers, employees, representatives, elected or appointed public officials, attorneys, and all persons acting, or any of them (collectively the "Releasees"), from any and all actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature whatsoever, known or unknown, fixed or contingent, including all costs and attorneys' fees (hereinafter called "Claims"), which any third party may make against the Releasees, or any of them, by reason of any matter, cause, or thing relating to the Airplane after the date of execution of this Agreement. The Parties further expressly agree that this indemnification provision is intended to be as broad and inclusive as is pennitted by the law of the State of California and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. 5. Mutual Release. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby mutually release and forever discharge each others respective "Releasees" hereunder, consisting of, where applicable, their elected or appointed public officials, officers, employees, and agents, including, but not limited to each and all of them and (as the case may be) each of their associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, lawyers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature Ih11 By ach Party -2- A&W 933431 v. ] whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which the Parties now have or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the begimiing of time to the date hereof for any and all Claims constituting, arising out of, or based upon the Airplane. Provided, however, that nothing in this paragraph shall be interpreted to prevent the Parties from enforcing their respective rights under this Agreement. 6. Discovery of Different or Additional Facts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 5 of this Agreement, and expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 7. Release of Unknown Claims. The Release set forth above in Paragraph 5 of this Agreement is a mutual release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have as a result of the Airplane, except for any claims which may arise from the terms of this Agreement. 8. Waiver of Civil Code Section 1542. Further, the Parties expressly agree to waive and relinquish all rights and benefits that it may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: " § 1542. [General release; extent] 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." 9. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement., and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties further specifically represent that prior to signing this Agreement they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 10. Assistance of Counsel. The Parties each specifically represent that they have Hut a1s y Each Party -3- A&W#33431 v 1 consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 11, Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 12. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 13. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity any rights, remedies, obligations or liabilities under or by reason of this Agreement. 14. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 15. Headings. Headings at the beginning of each section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 16. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any wicertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 17. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. yy 11 Initi�ks y Each Party -4- A&W 933431 v 1 19. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. 20. Authority To Sign. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party and to bind that party, including its members, agents and assigns, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said party is bound. [SIGNATURE PAGE FOLLOWS] Initia y Each Party -5- A&W#33431 v 1 IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release of Claims, on the dates set forth below. Dated: �dpl�y�@�i� 2� , 2005 THE CITY OF PALM SPRINGS By: - City Manager ATTEST 140 or � a City Cierk Dated: 12005 ROB/ERT MILES Dated: /U(t,LY) 2005 TFC TEXTRON FINANCIAL By: Kristi LLSS as APPROVED AS TO FORM: Dated: 2005 RONALD B.-RICH �&ASSOCIATES -- By. RONALD RICH,ESQ. Attorney for Robert Miles and TFC Textron ® Financial Dated: 'Pe�fl ` , 2005 ALESHIRE& WYNDER, LLP By: � � ANTHO TAYLOW ESQ. Attorneys for the City of Palm Springs -6- Memorandum To: James Thompson, City Clerk From: Douglas Holland, City At rney Date: March 30, 2005 Re: Settlement Agreement with Robert Miles and TFC At the City Council's closed session on Februaryl6, 2005, the City Council authorized the City Attorney's Office to settle the City `s outstanding claim against Sam Haynes, the owner of an aircraft stored at the Palm Springs Airport, for past due Trent, and his successors in interest. The City Council authorized the City Attorney's office to negotiate for a settlement of the City's claims for the amount of $12,000.00 and authorized us to enter into a settlement agreement if the agreement was consistent with these parameters. I have reviewed the attached Settlement Agreement and Release of All Claims, and executed by David Ready on March 30, 2005, and find that this document is consistent with the direction of the City Council and the authority the City Council provided this Office. This document should be filed with your office. If you have any questions, please do not hesitate to give me a call.