HomeMy WebLinkAbout329061 SETTLEMENT AGREEMENT AND RELEASE
2 This settlement agreement and release is dated September 25, 2018, and is between
3 the COUNTY OF FRESNO, a political subdivision of the State of California ("County"), and
4 WILLIAMS & FICKETT, a California general partnership ("Plaintiff').
5 Recitals
6 On February 13, 2013, the Plaintiff filed an action against the County for refund of
7 personal property taxes, titled Williams & Fickett v. County of Fresno, et al., Fresno County
8 Superior Court Case No. 13CECG00461 ("Action").
9 The Plaintiff, in essence, alleges in the Action that the County, for tax years 1994
10 through 2001, assessed certain personal property to the Plaintiff for purposes of property taxes.
11 The Plaintiff further alleges that it did not own that personal property on the relevant lien dates
12 for those years, and thus disputes the assessment of that property to Plaintiff as unlawful. The
13 Plaintiff seeks a refund of property taxes that it paid based on the disputed assessments.
14 The County has denied, and continues to deny, that Plaintiff is entitled to a refund of
15 property taxes.
16 The parties wish to avoid the disruption, inconvenience, uncertainty, and expense
17 associated with further litigation in this matter. To that end, the parties wish to compromise,
18 settle, and resolve the matter on the terms provided in this agreement.
19 The parties therefore agree as follows:
20 1.Recitals. The recitals above are true and correct.
21 2.Effective Date. This agreement is effective on September 25, 2018.
22 3.Payment by County. No later than October 11, 2018, the County shall pay to the
23 Plaintiff, in immediately available funds, the total sum of $297,000.00. Payment shall
24 be made to Dowling Aaron Incorporated Client Trust Account.
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Agreement No. 18-569
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4.Request by Plaintiff for Dismissal. Within ten (10) days after receipt of payment,
the Plaintiff shall cause to be executed and filed a request for dismissal of the Action
with prejudice.
5.Attorney's Fees. Each party shall bear its own attorney's fees and costs arising
from the Action and related matters.
6.Release and Discharge of County. In consideration for the covenants in this
agreement, the Plaintiff, for itself, its officers, employees, agents, administrators,
successors, and assigns, hereby releases and forever discharges the County, its
elected and appointed officials, officers, employees, agents, attorneys,
administrators, successors, and assigns, from any and all claims, demands, and
causes of action of whatever kind or nature arising out of or in any way connected
with the matters, transactions, or events which are the subject of the above
referenced Action.
7.Release and Discharge of Plaintiff. In consideration for the covenants in this
agreement, the County, for itself, its elected and appointed officials, officers, employees,
agents, administrators, successors, and assigns, hereby releases and forever
discharges the Plaintiff, for itself and its officers, employees, agents, attorneys,
administrators, successors, and assigns, from any and all claims, demands, and causes
of action of whatever kind or nature arising out of or in any way connected with the
matters, transactions, or events which are the subject of the above-referenced Action.
8.Waiver of Section 1542. The parties acknowledge and affirm that they are
familiar with Section 1542 of the California Civil Code, which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
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1 HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
2 WITH THE DEBTOR.
3 The parties hereby knowingly and voluntarily agree that the releases provided for herein
4 are intended to cover claims, known or unknown, whether mature or contingent, arising out of o
5 in any way related to the Action and acknowledge and agree that this waiver is an essential and
6 material term of the settlement that led to this agreement.
7 9.No Admission. The parties agree that this agreement compromises and settles the
8 Action and that nothing in this agreement is an admission of liability by either party.
9 10.Voluntary Settlement. The parties negotiated the terms of this agreement in good
10 faith, and those terms reflect a settlement that the parties reached voluntarily after
11 consultation with competent legal counsel. Each party specifically represents that,
12 before signing this agreement, it has had a reasonable time to consider whether to
13 accept this agreement. Each party further represents that it has carefully read and
14 fully understands all terms of this agreement, and that it is voluntarily, knowingly, and
15 without coercion, entering into this agreement based upon its own judgment.
16 11.Severability. If anything in this agreement is found by a court of competent
17 jurisdiction to be unlawful or otherwise unenforceable, the balance of this agreement
18 remains in effect, and the parties shall negotiate in good faith to modify this
19 agreement to effectuate the original intent of the parties so that the transaction
20 contemplated by the parties is fulfilled to the greatest extent possible.
21 12.Warranty of Capacity. The Plaintiff represents and warrants that: (a) no other
22 person or entity has, or has had, any interest in the claims, demands, obligations, or
23 causes of action referred to in this agreement; and (b) it has not sold, assigned,
24 transferred, conveyed, or otherwise disposed of any of the claims, demands,
25 obligations, or causes of action referred to in this agreement.
26 13.Authorization. The Plaintiff represents and warrants to the County that:
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(a)The Plaintiff is duly authorized and empowered to sign and perform its
obligations under this agreement.
(b)The individual signing this agreement on behalf of the Plaintiff is duly authorized
to do so and his or her signature on this agreement will legally bind the Plaintiff to the
terms of this agreement.
14. Entire Agreement. This agreement is the entire agreement between the Plaintiff an
the County with respect to the subject matter of this agreement, and it supersedes all
previous negotiations, proposals, commitments, writings, advertisements,
publications, and understandings of any nature unless those things are expressly
included in this agreement.
15.Enforceability of Agreement. The parties agree that the terms of this agreement
are admissible in any proceeding to enforce or interpret its terms and that the terms
of this agreement are specifically enforceable pursuant to the provisions of California
Code of Civil Procedure Section 664.6 and other relevant authorities.
16.Modification. This agreement may not be modified, and no waiver is effective,
except by another written agreement that is signed by both parties.
17.Future Attorney's Fees. If any additional or future legal proceedings are necessary
by either of the parties to enforce this agreement or a declaration of any rights under
the terms of this agreement, the prevailing party in that proceeding shall be entitled
to receive from the other party who opposes such action all costs incurred including,
but not limited to, reasonable attorney's fees.
18.Additional Documents. Both parties will cooperate fully, execute all supplementary
documents, and take all additional actions that are necessary or appropriate to give
full force and effect to the terms and intent of this agreement.
19.Headings. The headings of this agreement are for convenience only and may not be
used to construe, interpret, or determine the validity of this agreement.
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20. Counterparts. This agreement may be signed in counterparts, each of which is
deemed an original, and all of which together constitute this agreement.
The parties have executed this settlement agreement and release as of the date first
4 written above.
5 PLAINTIFF
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10 ~kilia.L(JA11:. CA
11 Mailing Ad~ '
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14 For accounting use only:
15 Fund 1150
16 Subclass 19240
17 Account 1450
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COUNTY OF FRESNO
Sal
Sup
ATTEST:
hairperson of the Board of
the County of Fresno
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
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