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HomeMy WebLinkAboutCC RESO 15,120RESOLUTION NO. 15,120 RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE SETTLEMENT AGREEMENT AND REPAIR AGREEMENT BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute the following agreements: 1) Settlement Agreement and Full Release of All Claims 2) Agreement Between the Community Development Commission of the City of National City and Bay Cabinets, Inc. for the Repair and Repaving of a Parking Facility Copies of said Agreements are attached hereto as Exhibits "A" and "B", respectively, and are incorporated herein by reference. PASSED AND ADOPTED this llth day of November, 1.986. ATTEST: /I— 77) CITY CLERK APPROVED AS TO FORM: GEO•GE H. EISER, III City Attorney First Revised Agreement and Release SETTLEMENT AGREEMENT AND FULL RELEASE OF ALL CLAIMS This Settlement Agreement (the "AGREEMENT") is entered into as of the date it is fully executed by the parties (hereinafter "Settling Parties"). The AGREEMENT is between McMILLIN CONSTRUC- TION COMPANY, INC., a California Corporation, McMILLIN DEVELOP- MENT, INC., a California corporation, VONNIE L. McMILLIN and MACEY L. McMILLIN, as Trustees of the McMILLIN FAMILY TRUST (hereinafter "McMILLIN"), the CITY OF NATIONAL CITY (hereinafter "CITY") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (hereinafter "CDC"), BAY NATIONAL PROPERTIES (hereinafter "BAY NATIONAL"), S&A INVESTMENT, STANDMARK, INC., RICHARD ALLEN and ERNEST STANLEY (hereinafter "STANLEY"), R.E. HAZARD CONTRACTING COMPANY, INC., BERNIECE WINTER, THOMAS WONG, INA, and JAMES P. PELTIER and DONALD R. McCREDIE, and each of their principals, managing agents, subsidiaries, parent com- panies, affiliates, joint venturers, alter egos, or successors. RECITALS A. There is now pending in the San Diego Superior Court action number 475093 entitled Bay National Properties, a partner- ship, vs. McMillin Construction Company, Inc., and related cross - actions, including cross -actions between and among many of these Settling Parties (hereinafter "the BAY NATIONAL ACTION"). B. There is now pending in the San Diego Superior Court related cross -actions to action number 455025 entitled Richard D. Rathburn and Claudia M. Rathburn vs. McMillin Development Inc., a California Corporation; City of National City, et al., including EXHIBIT "A" First Revised Agreement and Release actions between and among many of these Settling Parties (herein- after "the RATHBURN ACTION"). C. There is now pending in the San Diego Superior Court actions numbered 529136 and 529137 entitled The Community Develop- ment Commission of the City of National City vs. McMillin Develop- ment Inc., a California Corporation, owner; et al., which action is a complaint in eminent domain seeking to condemn that property of McMillin, commonly referred to as the "La Morena LiquorStore Property" (hereinafter "the CONDEMNATION ACTION"). D. All Settling Parties desire to forever settle among them disputes involving various properties impacted by soil movement and subsidence located in the block east of National City Boulevard, west of B Street and between 30th Street and 31st Street in the City of National City. The above -described actions relate to al- leged said soil movement and subsidence and the Settling Parties desire to settle their differences as to those properties physical- ly impacted by the soil movement and subsidence at this location. The addresses of the specific properties which are the subject of this AGREEMENT are 40 E. 30th Street (La Morena), 102 E. 30th Street (Premium Auto Sales), 124 E. 30th Street (office building), 148 E. 30th Street (office building), 3010 B Street, 111 E. 31st Street (Bay Cabinet), and 121 E. 31st Street, all in National City, California. E. Pursuant to Code of Civil Procedure Section 877, et seq., the stipulation of all parties, and order of the Court, all Settling Parties have entered into this AGREEMENT in good faith. F. NOW, THEREFORE, in consideration of the foregoing reci- tals which are an integral part of this AGREEMENT, and the terms - 2 First Revised Agreement and Release and conditions hereinafter set forth, the Settling Parties agree as follows: AGREEMENT 1. CDC shall pay to McMILLIN the sum of $180,000 (in addi- tion to the sum of $62,020 which it has already paid) to acquire the McMILLIN property which is the subject of the CONDEMNATION ACTION as well as an adjacent McMILLIN property, referred to as the Premium Auto Sales Property, which is under the threat of condemna- tion. CITY shall pay to McMILLIN the sum of $200,000 as compensa- tion to McMILLIN for alleged damage to its properties, said damage alleged to have occurred prior to this sale of said properties. All parties hereto understand and acknowledge that in consid- eration of this agreement, the City will ;install a new storm drain- age system which will divert waters from the existing subterranean drainage system which runs through and adjacent to these subject properties. 2. McMILLIN DEVELOPMENT will stipulate to a judgment in favor of CDC in the CONDEMNATION ACTION. McMILLIN FAMILY TRUST will sell to CDC the Premium Auto Sales Property. McMILLIN FAMILY TRUST will sign all documents necessary to effectuate the stipu- lated judgment and the transfer of the Premium Auto Sales property, said transfer being accomplished under threat of condemnation. 3. The McMILLIN FAMILY TRUST is selling the Premium Auto Sales Property to CDC in "as is" condition for $180,000 under threat of condemnation. McMILLIN DEVELOPMENT is relinquishing the La Morena Property to CDC in "as is" condition for $62,020 under threat of condemnation. - 3 First Revised Agreement and Release 4. In addition to the total sum which CDC and the CITY are contributing to this settlement as set forth in paragraph 1 above, McMILLIN is receiving other sums from other parties as specifically set forth later. A pro rata portion of these additional funds com- bine to compensate McMILLIN DEVELOPMENT and McMILLIN FAMILY TRUST for damage to the Premium Auto Sales Property and to the La Morena Property. (The rest of the funds compensate McMILLIN for other damages, including McMILLIN's liability to repair the Bay National Cabinet Shop as set forth below.) This settlement contemplates that the total compensation from all sources for the Premium Auto Sales Property and the La Morena Property, both for the "as is" market value of the two properties and for damages to the two properties, is $512,020. 5. McMILLIN shall be responsible to repair or pay the cost of repair to the BAY NATIONAL Cabinet Shop building in accordance with the plans of James Libby, structural engineer. As part of said repairs, McMILLIN will restore the Cabinet Shop parking lot to adequate base and grade and repave it. In addition to repair- ing the Cabinet Shop, McMILLIN has already paid $60,000 to Bay National as and for Bay National's lost profits, costs of reloca- tion, attorneys fees and all other damages. It is agreed and un- derstood that as a material element of this AGREEMENT, the build- ing and surrounding parking lot must actually be restored to a safe and usable condition comparable to its pre -damaged condition and in conformance with all applicable codes and regulations. 6. CDC will maintain the BAY NATIONAL Cabinet Shop parking lot in a usable condition, pursuant to the terms of "An Agreement Between The Community Development Commission of the City of - 4 First Revised Agreement and Release National City and Bay Cabinets, Inc., for the Repair and Repairing of A Parking Facility." 7. STANLEY will pay to McMILLIN the total sum of $110,000. 8. INA shall pay to McMILLIN the total sum of $45,000, along with HARTFORD, who will pay to McMILLIN the total sum of $12,500, and WESTFIELD, who will pay to McMILLIN the total sum of $12,500. Said $70,000 is being paid by INA, HARTFORD and WEST - FIELD, as first party carriers for the BAY NATIONAL Cabinet Shop property. BAY NATIONAL, upon payment of said $70,000, shall release INA, HARTFORD and WESTFIELD accordingly. 9. JAMES P. PELTIER and DONALD K. McCREDIE have already paid the total sum of $22,500 to McMILLIN, R.E. HAZARD CONTRACT- ING COMPANY, INC. has already paid the total sum of $10,000 to McMILLIN, and BERNIECE WINTER has already paid the total sum of $250 to McMILLIN. No further consideration is required from these four parties. 10. THOMAS WONG will waive all costs and claims against all settling parties and all settling parties will dismiss all claims against Mr. WONG. 11. McMILLIN will defend and hold all Settling Parties harmless from any subrogation action which HARTFORD might initi- ate, as McMILLIN's first party carrier, arising from any indem- nity payments to be made in connection with the McMILLIN office building, 124 E. 30th Street, National City, California. 12. All Settling Parties will dismiss all actions and cross -actions with prejudice as against all other Settling Par- ties in the BAY NATIONAL ACTION and the RATHBURN ACTION. 13. This AGREEMENT is a full and fair settlement that is binding upon all the parties to the above described litigation. - 5 - First Revised Agreement and Release All Settling Parties intend this AGREEMENT to be, to the fullest extent permitted by law, a full and final adjudication of all claims that have been raised, are raised, or could have been raised in the above described actions regarding the subject mat- ter of this AGREEMENT and further that the settlement is in good faith and that such determination will act as a bar to any joint tortfeasor or alleged tortfeasor from any further claims against any Settling Party, or any of them, for contribution or indemnity based on comparative negligence or comparative fault. 14. FULL RELEASE OF ALL CLAIMS Each Settling Party, in consideration for the mutual promises set forth in this AGREEMENT, does hereby and for its respective successors, alter egos and assigns, release, acquit and forever discharge each other and the others' respective agents, servants, alter egos and successors, of and from any and all claims, actions, or causes of action, demands, rights, damages, costs, loss of service, interest and other expenses and any other compensation (including attorneys' fees and engineering or any expert or other professional fees) which may hereafter accrue on account of or any way growing out of any and all known and unknown property damage which has occurred, or which will occur in the future to those properties situated east of National City Boulevard and between 30th Street and 31st Street and which are the subject of this AGREEMENT. It is understood and agreed that this settlement is the compromise of doubtful and disputed claims as to these releasing Settling Parties, and that the payments and other acts performed hereunder are not to be construed as an admission of liability on - 6 First Revised Agreement and Release the part of any of the Settling Parties hereby released and that said Settling Parties deny liability therefor and intend merely to avoid any and all litigation and buy their peace. Further, the Settling Parties hereto intend as a material condition of this AGREEMENT to terminate all the litigation pending in these actions and to bar all future litigation between said Settling Parties arising out of damage to said properties. All Settling Parties further understand and agree that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory in the United States are hereby expressly waived. Said section reads as follows: "1542. Certain claims not affected by general release. 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." The undersigned Settling Parties further declare and represent that no promise, inducement or agreement not herein expressed has been made to them, and that this release consti- tutes the entire release agreement Among and between the Settling Parties hereto, and that the terms of this release are contrac- tual and not a recital. 15. The parties on whose behalf this AGREEMENT is executed have conducted independent investigations of the facts and have not relied upon representations of any other party in making this AGREEMENT. 16. This AGREEMENT shall be binding upon, and shall inure to the benefit of, the heirs, successors, and assigns of the parties hereto. First Revised Agreement and Release 17. This AGREEMENT is entered into in the County of San Diego, State of California, and the courts of said county are hereby granted continuing exclusive jurisdiction in respect to any disputes arising hereunder. 18. This AGREEMENT represents the entire understanding of the parties and may only be changed or modified by a document in writing, executed by all parties hereto. 19. It is further understood and agreed that a true, accur- ate and complete photocopy of this document is deemed a duplicate original, each of them to have the full force and legal effect as such and may be signed, if necessary, in counterpart. THE UNDERSIGNED SETTLING PARTIES HAVE READ THE FOREGOING SETTLEMENT AGREEMENT AND RELEASE AND FULLY UNDERSTAND IT. 1986. Signed, sealed and delivered this day of CAUTION: READ BEFORE SIGNING. MCMILLIN CONSTRUCTION COMPANY, INC. DATED: By: President APPROVED AND CONSENTED TO: By: Janet E. Sobel, Attorney for MCMILLIN CONSTRUCTION COMPANY, INC. ' DATED: MCMILLIN DEVELOPMENT, INC. By: President r_t APPROVED AND CONSENTED TO: By: Janet E. Sobel, Attorney for McMILLIN DEVELOPMENT, INC. DATED: APPROVED AND CONSENTED TO: First Revised Agreement and Release VONNIE L. McMILLIN As Trustee of the McMillin Family Trust By: Janet E. Sobel, Attorney for VONNIE L. McMILLIN DATED: APPROVED AND CONSENTED TO: By: MACEY L. McMILLIN As Trustee of the McMillin Family Trust Janet E. Sobel, Attorney for MACEY L. McMILLIN DATED: 00-7- 1 . Q (} APPROVED AND CONSENTED TO: By: CITY OF NATIONAL CITY George H. Eiser, III, Attorney fL`ITY OF NATIONAL CITY Anton C. Gerschlhr, Attorney for CITY OF NATIONAL CITY First Revised Agreement and Release COMMUNITY DEVELOPMENT COMMISSION OF THE CITY 9="l NATIONAL CITY DATED: %`-- /a _ APPROVED AND CONSENTED TO: B y : George H. Eiser, III, Attorney for CITY OF NATIONAL CITY DATED: APPROVED AND CONSENTED TO: By: J. Jackson Wills, Attorney for BAY NATIONAL PROPERTIES DATED: APPROVED AND CONSENTED TO: BAY NATIONAL PROPERTIES By: Jack B. Winters, Jr., Attorney for S&A INVESTMENT DATED: APPROVED AND CONSENTED TO: By: S&A INVESTMENT STANDMARK, INC. Jack B. Winters, Jr., Attorney for STANDMARK, INC. DATED: RICHARD ALLEN - 10 - APPROVED AND CONSENTED TO: By: Jack B. Winters, Jr., Attorney for RICHARD ALLEN DATED: APPROVED AND CONSENTED TO: First Revised Agreement and Release ERNEST STANLEY By: Jack B. Winters, Jr., Attorney for ERNEST STANLEY DATED: APPROVED AND CONSENTED TO: By: Edward F. Lanigar, Attorney for R.E. HAZARD CONTRACTING COMPANY, INC. DATED: APPROVED AND CONSENTED TO: By: R.E. HAZARD CONTRACTING COMPANY, INC. BERNIECE WINTER Edward E. Lindley, Attorney for BERNIECE WINTER DATED: DATED: THOMAS WONG, in pro per INA APPROVED AND CONSENTED TO: By: Timothy P. Irving, Attorney for INA DATED: APPROVED AND CONSENTED TO: First Revised Agreement and Release JAMES P. PELTIER By: James F. Chodzko, Attorney for JAMES P. PELTIER DATED: DONALD K. McCREDIE APPROVED AND CONSENTED TO: By: James F. Chodzko, Attorney for DONALD K. McCREDIE (DEA2:JSMCMI.SA) - 12 - r AGREEMENT BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BAY CABINETS, INC. FOR THE REPAIR AND REPAVING OF A PARKING FACILITY Bay Cabinets, Inc. is located at 111 East 31st Street, National City, CA. The site is shown on Exhibits "A" and "B" which are attached hereto, incorporated herein and made a part hereof. The site is owned by Bay National Properties and the business located at the site is operated by Bay Cabinets, Inc. Both entities are controlled by William Hancock. The industrial building depicted on Exhibit "B", hereof, will be repaired and reconstructed using pilings by McMillin Development, Inc. The remainder of the site (outside of the building) is herein called the parking facility. It consists of an area which will be regraded and repaved with asphatic concrete and in certain areas, and portland cement concrete in other areas by McMillin Development, Inc. The parking facility will be designed and constructed to properly drain and will otherwise be constructed flat, smooth and solid by McMillin Development, Inc. Trash and mud underlying a portion of the site and the parking facility will not be removed in connection with the fix of the building and the fix of the parking facility. It is known that the parking facility will therefore settle. The elevation at various points throughout the parking facility will be established and documented by the Community Development Commission after it is reconstructed. These elevations are herein called "as built". The Community Development Commission agrees that it will repair, at its sole cost and expense, the parking facility during the lifetime of the building after it is reconstructed by McMillin Development, Inc. Such repairs of the parking facility shall include the following: (1) potholes (2) undulations (3) generalized settlement Portholes and undulations shall be repaired by the Community Development Commission within seven days from receipt of written notice by Bay National Properties to the Community Development Commission so to do. "Generalized settlement" means a change of elevation within the parking facility, measured from the as built elevations, of 6 inches or more. The Community Development .Commission shall repair such generalized settlement within thirty days from receipt of written notice by Bay National Properties to the Community Development Commission so to do. Notices relating to this agreement shall be delivered to the parties as follows: (1) Community Development Commission of the City of National City 1243 National City Blvd. National City, CA 92050 Attn: Executive Director. EXBIT B (2) Bay National Properties and Bay Cabinets, Inc. 111 East 31st Street National City, CA 92050 Attention: Mr. William Hancock Should the Community Development Commission cease to exist, the City of National City shall assume its obligations under this Agreement. IN WITNESS WHEREOF the parties hereto have set their hands this day of , 1986. COMMUNITY DEVELOPMENT COMMISSION BAY NATIONAL PROPERTIES AND OF THE CITY OF NATIONAL CITY, CA BAY CABINETS, INC. By: By: Kile Morgan' Chairman William Hancock ATTEST: /, ,�C® `�,�,.,r.�o.. �� APPROVED: Arnord A. Peterson, Secretary J. Jackson Wills Attorney for Bay Cabinets, Inc. and by National Properties CITY OF NATIONAL CITY, CALIFORNIA By: Kile Morgan, Mayor ATTEST: Ione Campbell, City Clerk APPROVED: George H. Eiser, III, City and Community Development Commission Attorney