City Council Special Meeting December 6, 2022
CITY OF FAIRFIELD
FAIRFIELD CITY COUNCIL
SPECIAL MEETING
CLOSED SESSION
TUESDAY, DECEMBER 6, 2022; 5:00 PM
CITY MANAGER'S OFFICE, 1000 WEBSTER STREET, 4TH FLOOR,
FAIRFIELD, CA 94533
CLOSED SESSION AGENDA
MINUTES
CALL TO ORDER
Mayor Harry T. Price called the meeting to order at 5:00 p.m.
Present in person were Councilmembers Pam Bertani, Cat Moy, Doriss Panduro, Chuck Timm, and Scott Tonnesen; Vice Mayor Rick Vaccaro, and Mayor Price.
PUBLIC COMMENT: No members of the public wished to speak.
The City Council went into closed session on Item #1 with City Attorney David Lim, and Interim City Manager David Gassaway.
The City Council then went into closed session on Item #2 with City Attorney David Lim, Assistant City Attorney Chris Dykzeul, and Interim City Manager David Gassaway.
The City Council then went into closed session on Item #3 with attorney Richard Osman, attorney Adam Ambrozy, City Attorney David Lim, and Interim City Manager David Gassaway.
CLOSED SESSION
PRESENTATIONS
1. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: Interim City Manager David Gassaway
Contact: David Lim, (41S) 421-8484
2. CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION
Government Code 54956.9(d)(1)
In re: Hansaben Investments, LLC, a California Limited Liability Company, Case # 22-30258, U.S. Bankruptcy Courts, Northern District of California, San Francisco Division Contact: David Lim, (415) 421-8484
3. CONFERENCE WITH LEGAL COUNSEL— ANTICIPATED LITIGATION Government Code Section 54956.9(d)(2)-(4)
Re: Claim of defamation by Councilmember Cat Moy and City Council against Showcase LLC Contact: David Lim, (415) 421-8484
City Council Special Meeting December 6, 2022
The City came out of closed session. The City Attorney announced that regarding Item #1, the City Council directed City Attorney David Lim to negotiate a new permanent contract for Interim City Manager David Gassaway. The City Attorney announced that regarding Item #2, the City Council authorized approval of an additional $15,000 for attorney services in the matter of the bankruptcy of Hansaben Investments, LLC, case # 22-30258 in the U.S. Bankruptcy Courts, Northern District of California, San Francisco Division. There was no report out for Item #3.
The meeting was adjourned at 6:00 p.m.
wl-mao
Mayor
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") was entered into as a settlement on December 6, 2022 between and among the City of Fairfield ("City"), on its own behalf and on behalf of City Councilmember Catherine Moy ("Moy") (hereinafter collectively "Defendants"), and Claimant The Showcase, LLC ("Showcase" or "Claimant"). Pursuant to the settlement, the parties agree as follows:
RECITALS
A. WHEREAS, on May 4, 2021, at a City Council meeting and on May 12, 2021 at Mayor Hang Price's birthday celebration at City Hall, Fairfield Councilmember Catherine Moy made allegedly defamatory statements about Claimant, The Showcase, LLC. Claimant contends it suffered economic damages as a result of the statements and asserts claims against the City and Moy for slander, libel per se, and commercial disparagement. The aforementioned events that transpired shall henceforth be referred to as the "Incidents". On October 28, 2021, Claimant presented a government code tort claim ("Claim") to the City of Fairfield describing the Incidents and seeking economic damages. The City, Moy, and Showcase thereafter commenced settlement discussions and to facilitate same, entered into multiple tolling agreements, the most recent of which tolls any applicable statute of limitations thru January 1, 2023.
B. It is the desire of the parties to this Agreement to effect a full and complete compromise, settlement and resolution of the Claim and any and all potential causes of action that could be brought by Claimant against Defendants. The parties acknowledge that all claims and causes of action (whether past, present or future) of the Claimant are disputed, including with respect to existing facts, and this settlement is not intended to be and shall not be treated as an admission of facts, liability or responsibility in any manner whatsoever. The statements herein set forth are intended as efforts to compromise pursuant to Section 1152 of the California Evidence Code.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, the parties agree as follows:
I. Based on this settlement. Claimant agrees it will not file a lawsuit or bring any other claims of any sort against Defendants based on the Incidents or anything contained within Claimants Claim. Upon the City's receipt of this fully executed Settlement Agreement signed by Claimant and signed as approved to form by Plaintiff's counsel, the City shall furnish Claimant with a letter of regret signed by its Mayor, and in the form of the letter attached to this agreement as Exhibit A. As part of this settlement, the City also agrees that it will waive its right to collect attorney's fees from Claimant that were incurred in the matters of East of Eden North Bay LLC v.
City of Fairfield, et. al. (Solano County Superior Court docket FCS057389), and CCC Associates of Fairfield, Inc. v. City of Fairfield, et. al. (Solano County Superior Court docket FCS057154).
2. Claimant forgoes, waives, releases and relinquishes any and all claims or rights to pursue a claim or lawsuit or any other action against the Defendants before any City, County, State, Federal or other governmental agency or court concerning the matters described in Recitals A and
B, and any and all claims raised or which could have been raised in connection with the Incidents or the Claim under Federal or State law, including Constitutional, tort, contract or statutory claims. a. This Settlement Agreement, waiver and release shall redound to and is for the benefit of the Defendants, including the City of Fairfield's City Council and its elected and appointed officials (including but not limited to Councilmember Catherine Moy), boards, departments, officers, employees (past and present), agents, servants, officials, owners, successors and assigns, attorneys, insurers and all other persons affiliated with the City, including but not limited to, any other person or legal entity charged with responsibility, whether directly, or indirectly or vicariously, for the facts and circumstances mentioned in the above -mentioned Recitals A and B, inclusive, and any facts or circumstances raised by, arising from or referenced in the Incidents and/or the Claim. b. Claimant acknowledges the provisions of section 1542 of the Civil Code of the State of California, and hereby knowingly waives the benefit of such provisions on itss behalf, and understands that said section provides 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.
3. Each party to this Settlement Agreement, and each party on whose behalf it is entered shall bear the responsibility to pay its own attorneys' fees, experts or consultants' fees, and costs incurred, or that have arisen from the conduct described in the Claim and in pursuing or defending against claims or potential claims contained within the Claim.
4. Claimant hereby warrants that it has not assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Claimant hereby represents that it has absolutely no knowledge that any other person or entity has assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Claimant and its attorneys are the only persons or entities responsible for payment of any loans made to Claimant by any third party or person based on the Claim and Claimant will defend, indemnify and hold harmless the City and Defendants from any person or entity's claim(s), demand(s) or lawsuits based on said person(s) loaning money to Claimant because of Claimant and/or its attorneys' promise to repay said loan(s) based on financial gain obtained as consideration for this Settlement Agreement.
5. Claimant hereby warrants that, except for the Claim, it has not and does not intend to file or commence any other type of legal or administrative proceeding with any person, legal entity, City, County, State or Federal governmental or administrative agency or court concerning the facts and circumstances relating to the Incidents or the Claim under state and Federal laws and Constitutions.
6. This Settlement and Release Agreement is binding upon and shall redound to the benefit of the Defendants and their present and former agents, servants, employees, officers, owners, representatives, successors -in -interest, and assignees.
Claimant understands, acknowledges and agrees to the special conditions as follows:
a. Liability for all claims is disputed, and this final compromise and settlement agreement shall never be construed as an admission of liability or responsibility by the Defendants and any and all of the above -named City -related persons or entities at any time for any purpose.
b. Claimant understands, acknowledges and agrees that it is possible that other damages or claims arising from the Incidents and/or Claim not known now will develop or be discovered, or consequences or results of known injuries and damages or any other claims may develop, worsen or be discovered, and this final compromise and release is expressly intended to cover and include, and does cover and include, any past, present and future injuries and damages and any and all past, present, and future claims, future consequences or results of known or unknown injuries or damages or claims, including all rights, claims or causes of action based thereon that relate to the Incidents and/or the Claim now known or unknown to Claimant.
8. This Settlement Agreement and Release, and any rights or obligations pursuant to it, are not assignable by any party without written consent of the other parties.
The parties acknowledge that they each have been represented by counsel:
a. Claimant The Showcase, LLC has been represented by James Filippi of Filippi Law Firm, P.C.
b. Defendant City of Fairfield, including its City Councilmembers save and except for Councilmember Catherine Moy have been represented by Richard Osman of Bertrand, Fox, Elliot, Osman & Wenzel.
C. Defendant, Councilmember Catherine Moy has been represented by Adam Ambrozy of Lenahan, Slater, Pearse & Majernik.
Each party acknowledges that they have discussed this Agreement with their counsel, been advised of and understand its meaning, and have been advised of and understand its legal consequences. Each party freely and voluntarily enters into this Agreement and assumes the responsibility of its legal consequences.
10. This Settlement Agreement and Release may be executed in one or more digital counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Settlement Agreement and Release.
I l . This Agreement was entered into following negotiations between the attorneys for the Claimant and Defendants and the Settlement Agreement and Release shall be construed and interpreted in accordance with the laws of the State of California. 12, A faxed, copied and/or other electronic representation/impression of Claimant's and its attorney's, and the Defendants' original signatures on this original document or on a faxed, copied, and/or other electronic representation/impression of it shall have the same legal force and effect as any of the original signatures and the original document.
13. If any term of this Agreement is, in whole or in part, held to be illegal or unenforceable to any any exent under any enactment or rule of law, that term or part shall to that exent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.
IN WITNESS WHEREOF, the parties hereto enter into this Settlement Agreement and Release. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the person or entity on whose behalf the person is signing.
PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
DATED I S, I S 2022
The Showcase, LLC.
By:
It's: L L c ./hehloAr
[No further text on this pagel
ATTORNEY CERTIFICATION
1, James Filippi, do hereby certify that I am the attorney of record for the above -named settling Claimant and that my client, to the best of my knowledge, is capable of understanding the contents of this Agreement, each provision of which I have fully explained to it and I am satisfied that my client understood, agreed to and accepted these terms.
DATED: December 15 , 2022
' James Filippi
ON BEHALF OF DEFENDANTS
DATED Dom- '13V - 11 , 2022
David Gassaw
City Manager
DATED December 16 , 2022
DATED
.2022
DATED , 2022
Richard W. Osman
Attorneys for Defendants, save and
Except for Councilmember
Catherine Moy
Catherine Moy
Adam Ambrozy
Attorney for Defendant
Councilmember Catherine Moy
Exhibit A
December 12, 2022
The Showcase LLC
101 Grobric Court
Fairfield, CA 94534
RE: Showcase Presentation of Tort Claim And City of Fairfield Letter of Regret To The Showcase LLC:
The City of Fairfield regrets certain statements made by City of Fairfield Councilmember Catherine Moy about The Showcase LLC ("Showcase") and its ownership team, Victor Nguyen, Brian Wong, Daniel Sharp, and Ivan Campbell during public hearings and in conversations at City Hall.
Ms. Moy acted alone. Her statements about Showcase were based on incomplete information.
Following these statements, the City Council received both physical and oral evidence, and upon consideration of this supplementary information chose to grant Showcase a cannabis retail permit.
Showcase was one of four successful applicants out of fourteen highly qualified competitors.
This matter now is fully resolved and the City looks forward to having Showcase as a valued member of the Fairfield business community.
Sincerely,
Harry T. Price
Mayor, City of Fairfield
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") was entered into as a settlement on December 6, 2022 between and among the City of Fairfield ("City"), on its own behalf and on behalf of City Councilmember Catherine Moy ("Moy") (hereinafter collectively "Defendants"), and Claimant The Showcase, LLC ("Showcase" or "Claimant"). Pursuant to the settlement, the parties agree as follows:
RECITALS
A. WHEREAS, on May 4, 2021, at a City Council meeting and on May 12, 2021 at Mayor Harry Price's birthday celebration at City Hall, Fairfield Councilmember Catherine Moy made allegedly defamatory statements about Claimant, The Showcase, LLC. Claimant contends it suffered economic damages as a result of the statements and asserts claims against the City and Moy for slander, libel per se, and commercial disparagement. The aforementioned events that transpired shall henceforth be referred to as the "Incidents". On October 28, 2021, Claimant presented a government code tort claim ("Claim") to the City of Fairfield describing the Incidents and seeking economic damages. The City, Moy, and Showcase thereafter commenced settlement discussions and to facilitate same, entered into multiple tolling agreements, the most recent of which tolls any applicable statute of limitations thru January 1, 2023.
B. It is the desire of the parties to this Agreement to effect a full and complete compromise, settlement and resolution of the Claim and any and all potential causes of action that could be brought by Claimant against Defendants. The parties acknowledge that all claims and causes of action (whether past, present or future) of the Claimant are disputed, including with respect to existing facts, and this settlement is not intended to be and shall not be treated as an admission of facts, liability or responsibility in any manner whatsoever. The statements herein set forth are intended as efforts to compromise pursuant to Section 1152 of the California Evidence Code.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, the parties agree as follows:
1. Based on this settlement. Claimant agrees it will not file a lawsuit or bring any other claims of any sort against Defendants based on the Incidents or anything contained within Claimants Claim. Upon the City's receipt of this fully executed Settlement Agreement signed by Claimant and signed as approved to form by Plaintiffs counsel, the City shall furnish Claimant with a letter of regret signed by its Mayor, and in the form of the letter attached to this agreement as Exhibit A. As part of this settlement, the City also agrees that it will waive its right to collect attorney's fees from Claimant that were incurred in the matters of East of Eden North Bay LLC v.
City of Fairfield, et. al. (Solano County Superior Court docket FCS057389), and CCC Associates of Fairfield, Inc. v. City of Fairfield, et. al. (Solano County Superior Court docket FCS057154).
2. Claimant forgoes, waives, releases and relinquishes any and all claims or rights to pursue a claim or lawsuit or any other action against the Defendants before any City, County, State, Federal or other governmental agency or court concerning the matters described in Recitals A and
B, and any and all claims raised or which could have been raised in connection with the Incidents or the Claim under Federal or State law, including Constitutional, tort, contract or statutory claims. a. This Settlement Agreement, waiver and release shall redound to and is for the benefit of the Defendants, including the City of Fairfield's City Council and its elected and appointed officials (including but not limited to Councilmember Catherine Moy), boards, departments, officers, employees (past and present), agents, servants, officials, owners, successors and assigns, attorneys, insurers and all other persons affiliated with the City, including but not limited to, any other person or legal entity charged with responsibility, whether directly, or indirectly or vicariously, for the facts and circumstances mentioned in the above -mentioned Recitals A and B, inclusive, and any facts or circumstances raised by, arising from or referenced in the Incidents and/or the Claim. b. Claimant acknowledges the provisions of section 1542 of the Civil Code of the State of California, and hereby knowingly waives the benefit of such provisions on itss behalf, and understands that said section provides 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.
3. Each party to this Settlement Agreement, and each party on whose behalf it is entered shall bear the responsibility to pay its own attorneys' fees, experts or consultants' fees, and costs incurred, or that have arisen from the conduct described in the Claim and in pursuing or defending against claims or potential claims contained within the Claim.
4. Claimant hereby warrants that it has not assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Claimant hereby represents that it has absolutely no knowledge that any other person or entity has assigned, transferred, encumbered or hypothecated any claim of right or cause of action which is the subject matter of this Settlement Agreement. Claimant and its attorneys are the only persons or entities responsible for payment of any loans made to Claimant by any third party or person based on the Claim and Claimant will defend, indemnify and hold harmless the City and Defendants from any person or entity's claim(s), demand(s) or lawsuits based on said person(s) loaning money to Claimant because of Claimant and/or its attorneys' promise to repay said loan(s) based on financial gain obtained as consideration for this Settlement Agreement.
5. Claimant hereby warrants that, except for the Claim, it has not and does not intend to file or commence any other type of legal or administrative proceeding with any person, legal entity, City, County, State or Federal governmental or administrative agency or court concerning the facts and circumstances relating to the Incidents or the Claim under state and Federal laws and Constitutions.
6. This Settlement and Release Agreement is binding upon and shall redound to the benefit of the Defendants and their present and former agents, servants, employees, officers, owners, representatives, successors -in -interest, and assignees.
7. Claimant understands, acknowledges and agrees to the special conditions as follows:
a. Liability for all claims is disputed, and this final compromise and settlement agreement shall never be construed as an admission of liability or responsibility by the Defendants and any and all of the above -named City -related persons or entities at any time for any purpose.
b. Claimant understands, acknowledges and agrees that it is possible that other damages or claims arising from the Incidents and/or Claim not known now will develop or be discovered, or consequences or results of known injuries and damages or any other claims may develop, worsen or be discovered, and this final compromise and release is expressly intended to cover and include, and does cover and include, any past, present and future injuries and damages and any and all past, present, and future claims, future consequences or results of known or unknown injuries or damages or claims, including all rights, claims or causes of action based thereon that relate to the Incidents and/or the Claim now known or unknown to Claimant.
8. This Settlement Agreement and Release, and any rights or obligations pursuant to it, are not assignable by any party without written consent of the other parties.
9. The parties acknowledge that they each have been represented by counsel:
a. Claimant The Showcase, LLC has been represented by James Filippi of Filippi Law Firm, P.C.
b. Defendant City of Fairfield, including its City Councilmembers save and except for Councilmember Catherine Moy have been represented by Richard Osman of Bertrand, Fox, Elliot, Osman & Wenzel.
C. Defendant, Councilmember Catherine Moy has been represented by Adam Ambrozy of Lenahan, Slater, Pearse & Majernik.
Each party acknowledges that they have discussed this Agreement with their counsel, been advised of and understand its meaning, and have been advised of and understand its legal consequences. Each party freely and voluntarily enters into this Agreement and assumes the responsibility of its legal consequences.
10. This Settlement Agreement and Release may be executed in one or more digital counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Settlement Agreement and Release.
11. This Agreement was entered into following negotiations between the attorneys for the Claimant and Defendants and the Settlement Agreement and Release shall be construed and interpreted in accordance with the laws of the State of California.
12. A faxed, copied and/or other electronic representation/impression of Claimant's and its attorney's, and the Defendants' original signatures on this original document or on a faxed, copied, and/or other electronic representation/impression of it shall have the same legal force and effect as any of the original signatures and the original document.
13. If any term of this Agreement is, in whole or in part, held to be illegal or unenforceable to any any exent under any enactment or rule of law, that term or part shall to that exent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected.
IN WITNESS WHEREOF, the parties hereto enter into this Settlement Agreement and Release. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the person or entity on whose behalf the person is signing.
PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
DATED , 2022
The Showcase, LLC.
By:
It's:
[No further text on this page]
ATTORNEY CERTIFICATION
I, James Filippi, do hereby certify that I am the attorney of record for the above -named settling Claimant and that my client, to the best of my knowledge, is capable of understanding the contents of this Agreement, each provision of which I have fully explained to it and I am satisfied that my client understood, agreed to and accepted these terms.
DATED:
DATED
DATED
2022
James Filippi
ON BEHALF OF DEFENDANTS
2022
2022
DATED I I 2022
DATED December 19 2022
David Gassaway
City Manager
Richard W. Osman
Attorneys for Defendants, save and
Except for Councilmember
Catherine Moy
Catherine Moy
Councilmember Catherine Moy
Exhibit A
December 12, 2022
The Showcase LLC
101 Grobric Court
Fairfield, CA 94534
RE: Showcase Presentation of Tort Claim And City of Fairfield Letter of Regret To The Showcase LLC:
The City of Fairfield regrets certain statements made by City of Fairfield Councilmember Catherine Moy about The Showcase LLC ("Showcase") and its ownership team, Victor Nguyen, Brian Wong, Daniel Sharp, and Ivan Campbell during public hearings and in conversations at City Hall.
Ms. Moy acted alone. Her statements about Showcase were based on incomplete information.
Following these statements, the City Council received both physical and oral evidence, and upon consideration of this supplementary information chose to grant Showcase a cannabis retail permit.
Showcase was one of four successful applicants out of fourteen highly qualified competitors.
This matter now is fully resolved and the City looks forward to having Showcase as a valued member of the Fairfield business community.
Sincerely,
Harry T. Price
Mayor, City of Fairfield
CITY OF FAIRFIELD
Founded 1856 - Incorporated December 12, 1903
MAYOR'S OFFICE
December 13, 2022
The Showcase LLC
101 Grobric Court
Fairfield, CA 94534
RE: Showcase Presentation of Tort Claim and City of Fairfield Letter of Regret To The Showcase LLC:
The City of Fairfield regrets certain statements made by City of Fairfield Councilmember Catherine Moy about The Showcase LLC ("Showcase") and its ownership team, Victor Nguyen, Brian Wong, Daniel Sharp, and Ivan Campbell during public hearings and in conversations at City Hall.
Ms. Moy acted alone. Her statements about Showcase were based on incomplete information.
Following these statements, the City Council received both physical and oral evidence and, upon consideration of this supplementary information, chose to grant Showcase a cannabis retail permit. Showcase was one of four successful applicants out of fourteen highly qualified competitors.
This matter is now fully resolved, and the City looks forward to having Showcase as a valued member of the Fairfield business community.
Sincerely,
Harry T. Price
Mayor
HTP/kb