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CONTRACT 4386 Settlement Agreement4, SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ( "Agreement ") is made and entered into as of this 31 day of January, 2013 (the "Effective Date ") by and between the CITY OF EL SEGUNDO, a municipal corporation ( "City "), and SOCAL MOBILE FOOD VENDORS ASSOCIATION, a California Mutual Benefit Corporation ( "Association "). The above parties will be collectively referred to as the "Settling Parties." RECITALS A. On or about August 29, 2012, Association filed a Complaint for Declaratory Relief in the Superior Court for the State of California for the County of Los Angeles (Case No. YC067710) ( "Complaint" or "Action "). The Complaint alleged that El Segundo Municipal Code Section 8- 5 -13A, which limited vending from any parked vehicle to 10- minutes only when the vendor conducts business with a bona fide purchaser ( "the 10- Minute Rule "), is preempted by state law. B. A dispute exists between the City and Association concerning the validity of the Section 8 -5 -13A ( "dispute "). C. Following discussions with the Association's counsel and without admitting to any allegations in the Complaint, the City repealed the 10- Minute Rule on November 20, 2012, pursuant to Ordinance No. 1473 11/20/12. . D. The Settling Parties now wish to resolve the Dispute, the Action and all attendant and potential litigation arising therefrom. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, promises and undertaking set forth herein and other consideration, the receipt and adequacy of which are hereby acknowledged, Association and the City agree as follows: I . City's Obligation. Within 5 business days of execution of this Agreement, City shall remit a check to the Association in the amount of $1,500.00 payable to Dermer Behrendt Trust Account. City's payment is made as a means of compromise to settle the Action against the City and shall not be used now or in future proceeding as evidence that City has any legal obligation to pay any attorney's fees. 2. Association's Obligation. Within 2 business days of receipt of the payment described in Paragraph 1, Association shall prepare and file with the Superior Court for the State of California for the County of Los Angeles a request for dismissal with prejudice of the Action. 3. Release. a. Association, and its respective past and present officers, directors and shareholders, employees, agents, members, subcontractors and representatives hereby fully and 4 ; (1) It has not heretofore assigned or transferred, or purported to assign or transfer, to any party not named herein any released matter or Claim, or any part or portion thereof. (2) To the best of its knowledge, Association is not aware of any existing Claims nor of any facts that might give rise to any Claims of any type or nature against any of the City Parties pertaining to the Dispute, whether asserted or not, that has not been fully released and discharged by the release set forth in this Agreement. (3) Association has received all corporate and other approvals necessary to enter into this Agreement on its behalf and that the person signing this Agreement on its behalf is fully authorized to commit and bind Association to each and all of the commitments, terms and conditions hereof, and to release the Claims described herein, and that all documents and instruments relating thereto are, or, upon execution and delivery will be, valid and binding obligations, enforceable against them in accordance with their respective terms. (4) Association has freely entered into this Agreement and is not entering into this Agreement because of any duress, fear, or undue influence and this Agreement is being entered into in good faith. (5) Association has made such investigation of the facts pertaining to this Agreement as it deems necessary. (6) Association has, prior to the execution of this Agreement, obtained the advice of independent legal counsel of its own selection regarding the substance of this Agreement, and the Claims released herein. b. In executing this Agreement, Association acknowledges, represents, and warrants to the City Parties that it has not relied upon any statement or representation of any City Party nor of any officer, agent, employee, representative, or attorney for any City Party regarding any facts not expressly set forth within this Agreement. In entering into this Agreement, Association assumes the risk of any misrepresentations, concealment or mistake, whether or not it should subsequently discover or assert for any reason that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect or incomplete. C. The representations and warranties of each of the Settling Parties set forth in this Section 4 and elsewhere in this Agreement will survive the execution and delivery of this Agreement and are a material part of the consideration to the City in entering into this Agreement. . 1yLeWretmmati n. a. All Settling Parties have cooperated in the drafting and preparation of this Agreement and in any construction or interpretation to be made of this Agreement, the same shall not be construed against any such Settling Party. This Agreement is the product of bargained for and arms length negotiations between the Settling Parties and their counsel. This Agreement is the joint product of the Settling Parties. T A� b b. This Agreement is an integrated contract and sets forth the entire agreement between the parties hereto with respect to the subject matter contained herein. All agreements, covenants, representations and warranties, express or implied, oral or written, of the parties hereto with regard to such subject matter are contained in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made or relied on by any party hereto. C. This Agreement may not be changed, modified or amended except by written instrument specifying that it amends such agreement and signed by both parties. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any waiver be deemed a continuing waiver; and no waiver shall be implied from binding unless executed in writing by the party making the waiver. d. All of the covenants, releases and other provisions herein contained in favor of the persons and entities released are made for the express benefit of each and all of the said persons and entities, each of which has the right to enforce such provisions. e. This Agreement shall be binding upon and inure to the benefit of each of the Settling Parties, and their respective representatives, officers, employees, agents, heirs, devisees, successors and assigns. 6. Further Cooperation. Each party shall perform any further acts and to execute and deliver any further documents that may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement. 7. Attorney's Fees. In the event of any litigation or arbitration claim concerning any controversy, claim or dispute between the parties arising out of or relating to this Agreement or the interpretation or enforcement thereof, the prevailing party shall be entitled to recover from the other party its expenses and costs, including reasonable attorneys fees, incurred in conjunction therewith or in the enforcement or collection of any judgment or award rendered therein. The "prevailing party" means the party determined by the court to have prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment or award is rendered. Each party to this Agreement shall bear its own costs, attorneys' fees and other expenses incurred in association with negotiation and execution of this Agreement. 8. Governing Law; Venue. This agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any otherwise applicable principles of conflicts of laws. 9. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but such counterparts together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. CITY OF EL SEGUNDO SoCal Mobile Food Vendors Assoc. Greg City ATTEST: Tracy Wea r, City Clerk APPROVED AS TO FORM: im Mark D. Hensley, City Attorney 5 CITY OF EL SEGUNDO SoCtadl Mobile Food Vendors Assoc. Greg Carpenter, City Manager ATTEST: Tracy Weaver, City Clerk APPROVED AS TO FORM: Mark D. Hensley, City Attorney 5 CITY 0.1,'EL SEGUNDO 4386 SoCal Mobile Food Vendors Assoc. Greg 11,10,111A anager Cr AS ATTEST: Tratcy Wcval� r, City Clerk APPROVED AS TO FORM: 6-1 Mark D. Hensley, City Attorney N