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16-1004_CEFALI, MICHAEL_Settlement AgreementSETTLEMENT AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND MICHAEL CEFALI This Settlement Agreement ("Agreement") is made as of October 4, 2016, for reference purposes only, between the City of San Juan Capistrano, a California municipal corporation and general law city (the "City") and Michael Cefali, an individual ("Cefali") (collectively, the "Parties"), with respect to the following facts: A. Section 4-6.311, subdivision (a) of the City's Municipal Code states, "It shall be unlawful for any person to park a vehicle upon any roadway for the principal purpose of. (a) Displaying such vehicle or property thereon for sale, hire, or rental...." (the "Ordinance"). B. On or about May 3, 2016, Cefali was issued a parking citation (the "Citation") for allegedly violating the Ordinance by placing a 8.5 x 1 I" sign on his vehicle, advertising the vehicle for sale, on a City street. Cefali paid a fifty dollar ($50.00) fine for such Citation. C. On September 15, 2016, Cefali filed an action in the United States federal court, entitled Michael Cefali v. City of San Juan Capistrano, U.S. District Court Case No. 8:16-cv-1698 (DFMx) alleging that the City's Ordinance is unconstitutional, both facially and as applied to Cefali (the "Action"). D. The City and Cefali wish to resolve the Action, as set forth more fully below. IN LIGHT OF THE FOREGOING RECITALS, IT IS MUTUALLY AGREED THAT: 1. Cessation of Enforcement of Ordinance. The City shall immediately cease enforcement of the Ordinance. 2. Repeal of Ordinance. The City Council shall, within thirty (30) days following the date that this Agreement is fully executed (the "Effective Date"), conduct a second reading and thereby adopt an ordinance repealing the Ordinance. A draft of the ordinance repealing the Ordinance is attached hereto as Exhibit "A", and incorporated by reference herein. 3. Reimbursement of Citation Fine. The City shall, within fifteen (15) days following the Effective Date, pay to Cefali the amount of fifty dollars and 00/100 ($50.00), as reimbursement of the fine paid by Cefali for the Citation. 6114 7.60009,292 7685 2.2 4. Payment of Cefali's Attorneys' Fees. The City shall, within fifteen (15) days following the Effective Date, pay Cefali's attorneys' fees and costs, in the amount of Nine Thousand Dollars and 00/100($9,000.00), to Pacific Legal Foundation. 5. Section 1542 Waivers. Civil Code section 1542 states: "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 have materially affected his or her settlement with the debtor." This Agreement constitutes a compromise of disputed claims, and nothing contained herein constitutes an admission of fault or liability by any party with respect to the facts or legal claims and defenses that each could have raised in the Action. 6. Cefali Release. Except as set forth in this Agreement, Cefali, on behalf of himself, his heirs, agents, executors and assigns, hereby releases the City, its council members, commissioners and employees, and their agents and attorneys from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions, and/or causes of action arising out of, or connected to, the Action, whether known, unknown or suspected and Cefali hereby waives the provisions of Civil Code section 1542. Within thirty five (35) days following the last of the items in Sections 2 through 4 above to occur, Cefali shall file, or cause to be filed, a dismissal of the Action, with prejudice. 7. City Release. Except as set forth in this Agreement, the City releases Cefali and his heirs, agents, executors and assigns from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions, and/or causes of action arising out of, or connected to, the Action, whether known, unknown or suspected and the City hereby waives the provisions of Civil Code section 1542. 8. Successors, Third Parties. This Agreement is entered into solely for the benefit of the parties hereto and their successors, transferees and assigns. Other than the parties hereto and their successors, transferees and assigns, no third party shall be entitled to directly, or indirectly, base any claim, or to have any right arising from, or related to, this Agreement. 9. Further Assurances. The parties shall act in good faith and shall take all further actions reasonably necessary to effectuate the letter and the spirit of this Agreement. 10. Choice of Law. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. 11. Venue Selection. Any litigation arising out of this Agreement shall be conducted only in the Orange County Superior Court. 2 61147.60009\29276852.2 12. Agreement Fees Clause. The prevailing party in any litigation brought to enforce or interpret this Agreement shall be entitled to recover its attorneys' fees and all costs of litigation including, but not limited to, expert witness fees, in addition to any other relief to which it may be entitled. 13. Integration. This Agreement contains the entire agreement and understanding concerning the Action and supersedes and replaces all prior negotiations or proposed agreements, written or oral. Each of the parties hereto acknowledges that no other party, nor the agents nor the attorneys for any party, has made any promise, representation or warranty whatsoever, express or implied, not contained herein, to induce the execution of this Agreement and acknowledge that this Agreement has not been executed in reliance upon any promise, representation or warranty not contained herein. 14. Amendments. This Agreement may not be amended except in a writing signed by all the parties hereto. 15. Investig_ation/Risks. The parties to this Agreement hereby acknowledge that they have undertaken an independent investigation of the facts concerning the Action. The parties expressly assume the risk that the true facts concerning the foregoing may differ from those currently understood by them. 16. Advice/Consent of Counsel. The parties to this Agreement hereby acknowledge that they have executed this Agreement with the consent, and upon the advice, of their own attorney. 17. Authority. Each individual signing this Agreement represents and warrants that he or she has been authorized to do so by proper action of the party on whose behalf he or she has signed. 18. Counterparts. This Agreement may be signed in one or more counterparts and, when all parties have signed the original or a counterpart, such counterparts together shall constitute one original document. [signatures on following page] 3 61147.60009\29276852.2 SIGNATURE PAGE TO SETTLEMENT AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND MICHAEL CEFALI MICHAEL CEFALI By: Michael Cefali October 7- , 2016 APPROVED AS TO FORM: By: - Lawrence G. Salzman, Legal Counsel 611.17.6000929276852 2 CITY OF SAN JUAN CAPISTRANO By: �Ll 13 en Si el ity anager l October /0 , 2016 APPROVED AS TO FORM: AT am Jeffrey S. Ballinger, City Attorney EXHIBIT "A" TO SETTLEMENT AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND MICHAEL CEFALI Draft Ordinance 61147.60009\29276852.2 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA AMENDING SECTION 4- 6.311 OF THE SAN JUAN CAPISTRANO MUNICIPAL CODE REGARDING PARKING OF VEHICLES FOR CERTAIN PURPOSES THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Section 4-6.311 of the San Juan Capistrano Municipal Code is hereby amended to read as follows: 4-6.311. Parking for maintaining or repairing vehicles. It shall be unlawful for any person to park a vehicle upon any roadway for the principal purpose of: (a) Painting, greasing, or repairing such vehicle or property thereon, except repairs necessitated by an emergency; or (b) Washing or polishing such vehicle, or any part thereof, when a charge is made for such service." SECTION 2. CEQA The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections 15060(c)(3) because this activity is not a project as defined by Section 15378 of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, and pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that it will not have a significant effect or physical change to the environment. SECTION 3. Severability If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. ATTACHMENT 1 SECTION 4. Effective Date This Ordinance shall take effect thirty (30) days after its final passage and adoption. A summary of this Ordinance shall be published and a certified copy of the full text of this proposed Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the City Council meeting at which this proposed Ordinance is to be adopted. Within fifteen (15) days after adoption of this Ordinance, the City Clerk is instructed to publish a summary of this Ordinance with the names of those City Council members voting for and against this Ordinance and the City Clerk shall post in the office of the City Clerk a certified copy of the full text of the adopted Ordinance along with the names of those City Council members voting for and against this Ordinance or amendment at least until the day of such publication. PASSED, APPROVED AND ADOPTED this day of .2016. ATTEST: MARIA MORRIS, CITY CLERK PAM PATTERSON, Esq., MAYOR 2