The URL can be used to link to this page

Home My WebLink About2003 CON City of San Diego - Settlement Agreement Route 252City of National City Office of the City Attorney 1243 National City Boulevard, National City, CA 91950-4301 George H. Eiser, III • City Attorney (619) 336-4220 Fax (619) 336-4327 TDD (619) 336-1615 TO: City Clerk DATE: January 14, 2003 FROM: City Attorney SUBJECT: Transmittal of Settlement Agreement and Mutual Release; Route 252 Project Attached is the executed original of a Settlement Agreement and Mutual Release entered into by the City of National City and the Redevelopment Agency of the City of San Diego. This document pertains to the recent resolution of a dispute over the payment of State Highway Route 252 mitigation payments to National City by San Diego. Please retain this document in your permanent files. Thank you. /4/3 Z;f° GEORGE H. EISER, III City Attorney GHE/gmo Attachment cc: City Manager Finance Director ® Recycled Paper Clo 3t1 LESLIE E. DEVANEY ANITA M. NOONE LESLIE J. GIRARD SUSAN M. HEATH GAEL B. STRACK ASSISTANT CITY ATTORNEYS DOUGLAS K. HUMPHREYS DEPUTY CITY ATTORNEY OFFICE OF THE CITY ATTORNEY CITY OF SAN DIEGO Casey Gwinn CITY ATTORNEY George H. Eiser, III Attorney for the City of National City 1234 National City Blvd. National City, CA 91950-4301 Dear Mr. Eiser: November 21, 2002 Settlement and Mutual Release Agreement CIVIL DIVISION 2D0 THIRD AVENUE, SUITE 1100 SAN DIEGO, CALIFORNIA 92101-4100 i .I. TELEPHONE (619) 533-5800 FAX (619) 533-5856 Enclosed for your signature please find the Settlement and Mutual Release Agreement [Agreement] which you prepared. The Agreement has been executed by Todd Hooks, Deputy Executive Director of the Redevelopment Agency, and approved as to form and legality by myself. I would appreciate it if you would forward a duplicate original to me for filing once it has been executed by your mayor and yourself. If you have any questions, please do not hesitate to contact me. Sincerely yours, CASEY GWINN, City Attorney DKH:ai Enclosure L:Ilumplveys\LTRS\national city settlement.wpd By jDouglas K.Iumphreys (� ' Deputy City Attorney ORIGINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release is made by and between the City of National City, a municipal corporation, hereinafter referred to as "CITY", and the Redevelopment Agency of the City of San Diego, a redevelopment agency, hereinafter referred to as "AGENCY". RECITALS A. CITY and AGENCY entered into a Memorandum of Understanding ("MOU") on or about March 10, 1987, which was the compromise of a dispute between CITY, AGENCY, and the State of California surrounding the rescission of the State Highway Route 252 Project. B. The MOU provided for payment by AGENCY to CITY of $3.7 Million in mitigation funds to be used for capacity enhancement/street projects in CITY, as follows: 1. $2,500,000.00 to be provided in the first ten (10) years after execution of the Director's deed, due upon demand but in no total amount greater at any date than an amount equal to $250,000.00 times the number of whole years from date of execution. 2. $1,200,000.00 to be provided in the eleventh through fifteenth years after execution of the Director's deed, due upon demand but in no total amount greater at any date than an amount equal to $240,000.00 times the number of whole years from the beginning of the eleventh year. C. Pursuant to the MOU, the CITY has invoiced the AGENCY in February/March of each year for the appropriate payments due under the MOU ($250,000 annually from 1988 through 1997; $240,000 annually from 1998 through present). Accordingly, for year 2001 CITY invoiced AGENCY for $240,000 on March 1, 2001, and for year 2002 CITY invoiced AGENCY for $240,000 on March 1, 2002. To date, AGENCY has not paid these amounts. D. On or about February 25, 2002, CITY filed a Government Code claim with AGENCY for the unpaid amount due for year 2001, which claim has been rejected by operation of law. E. CITY and AGENCY desire to settle their dispute on the terms and conditions set forth herein: WHEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Incorporation of Recitals. The above -referenced recitals are expressly incorporated into the corpus of this Settlement Agreement and Mutual Release as though fully set forth herein. 2. Settlement. CITY and AGENCY expressly agree as follows: a. By November 20, 2002, AGENCY shall pay to CITY the $240,000 owing from March 1, 2001, with 6% interest compounded annually. It is understood that if this initial payment can be processed in a shorter period of time, the payment will be made sooner. b. AGENCY shall pay the remaining $240,000 balance in quarterly installments beginning July 1, 2003, all due by June 30, 2004, with 6% interest commencing March 1, 2002, compounded quarterly, and with a late charge of 10% for any late payment. 3. Mutual Release and Discharge of Claims. In consideration of the payments called for herein, the parties fully and forever releases, acquits, and discharge each party hereto, their attorneys, officials, agents, servants, representatives and employees, of and from any and all past, present, or future claims, demands obligations, actions, causes of action, damages, costs, expenses, liability, suits, and compensation of any nature whatsoever, whether based on tort, contract, or other theory of recovery, arising out of AGENCY'S failure to pay the sums referred to hereinabove, or out of any act of CITY related to AGENCY'S failure to pay. 4. Waiver of California Civil Code Section 1542. As a further condition and inducement of this Settlement Agreement and Mutual Release, CITY and AGENCY expressly and specifically waive any and all rights and benefits they may have under Section 1542 of the California Civil Code. CITY and AGENCY understand that California Civil Code Section 1542 provides as follows: A general release does not extend to claims which a creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor. Notwithstanding the provisions of Section 1542 of the California Civil Code, the parties hereby irrevocably and unconditionally releases and forever discharge each party hereto, and any and all of their subsidiaries, affiliates, and divisions, and each and all of their attorneys, officials, agents, servants, representatives and employees from any and all claims, demands, obligations actions, causes of action, damages, expenses, liability, suits and compensation of any nature whatsoever, whether known or unknown, suspected or unsuspected, which each party now has or claims to have, or which each party, or their assigns, at any time hereafter may have or claim to have, against AGENCY arising out of AGENCY'S failure to pay the sums referred to hereinabove, or against CITY for any act of CITY related to AGENCY'S failure to pay. 5. Attorneys' Fees. In the event any party hereto shall bring suit, commence any arbitration, or hire an attorney to compel performance of or to recover for breach of any covenant, agreement or condition contained in this Settlement Agreement and Mutual Release, the prevailing party shall be entitled to recover from the other party its costs and reasonable attorney's fees. 6. No Waiver. The failure of any party to this Settlement Agreement and Mutual Release to insist upon the performance of any of the terms and conditions of this Settlement Agreement and Mutual Release, or additional obligation assumed by any party in connection with this Settlement Agreement and Mutual Release, shall be binding only to the extent said modification is memorialized in writing and signed by each party or an authorized representative of each party. 2 7. Paragraph Headings. The titles to the paragraphs of this Settlement Agreement and Mutual Release are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Settlement Agreement and Mutual Release. Place of Suit. Any action at law, suit in equity, or other judicial proceeding for the enforcement of this Settlement Agreement and Mutual Release or any provisions thereof, may only be instituted in the Superior Court of California for the County of San Diego. 9. Binding Effect. The covenants and conditions contained in this Settlement Agreement and Mutual Release shall apply to and bind the parties, their heirs, personal representatives, assigns and successors -in -interest. 10. Contract As Including Entire Agreement. There are no promises, terms, conditions or obligations other than those contained herein. This Settlement Agreement and Mutual Release shall supersede all previous communications, representations or agreements, either verbal or written, between the parties. 11. Warranty of Capacity. Each party hereto represents and warrants that no other person or entity has nor has had any interest in the claims, demands, obligations, causes of action, or rights of appeal referred to in this Settlement Agreement and Mutual Release except as otherwise set forth herein, and that they have the sole right and exclusive authority to execute this Settlement Agreement and Mutual Release and/or receive or pay the sums specified in it; and that they have not sold, assigned, transferred, conveyed, or otherwise disposed or any of the claims, demands, obligations causes of action or right of appeal referred to in this Settlement Agreement and Mutual Release. 12. Representation of Comprehension of Documents. In entering into this Settlement Agreement and Mutual Release, the parties represent that they have relied upon the legal advice or their attorneys, who are the attorneys of their own choice, and that these terms are fully understood and voluntarily accepted by them. The parties further represent that they have no question with regard to the legal import of any term, word, phrase, or portion of this Settlement Agreement and Mutual Release, or the Settlement Agreement and Mutual Release in its entirety, and accept the terms of this Settlement Agreement and Mutual Release as written. 13. Further Assurances. All parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement and Mutual Release. 14. Use of Pronouns. Feminine or neuter pronouns shall be substituted for those of masculine form or vice versa, and the plural shall be substituted for the singular or vice versa, in any place or places in which the context may require such substitution. 15. Law Governing. All parties hereto expressly agree that this Settlement Agreement and Mutual Release and the performance hereunder, and all suits and special proceedings hereunder, shall be construed in accordance with the laws of the state of California. 3 16. No Party To Be Deemed Draftsman. If an ambiguity shall appear in this Settlement Agreement and Mutual Release, such ambiguity shall not be resolved by interpreting this Settlement Agreement and Mutual Release against any party as the draftsman. The language of this Settlement Agreement and Mutual Release shall be interpreted simply according to its fair meaning. 17. Counterparts. This Settlement Agreement and Mutual Release may be signed in counterparts, which when read together shall constitute the entire Agreement of the parties hereto. IN WITNESS WHEREOF, the undersigned has executed this Settlement Agreement and Mutual Release in the County of San Diego, State of California. THE REDEVELOPMENT AGENCY OF THE CITY OF SAN DIEGO CITY OF NATIONAL CITY By' — By: Deputy Executive Direct r George . Waters, Mayor % Dated: / Y /26 7 , 2002 Dated: November 25 2002 APPROVED AS TO FORM AND LEGALITY ON THIS 1, DAY OF dUolre4-4,-,Q,e , 2002 CASEY G Agen By: Douglas ' ump reys APPROVED: KANE, BALLMER & BERKMAN Agency S;'al Counse y APPROVED AS TO FORM: By: George H. Eiser, III, City Attorney Attorney for the City of National City Dated: November 25 , 2002 4