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HomeMy WebLinkAbout2006 CON Randy Myrseth - Settlement AgreementMUTUAL SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS MUTUAL SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS [Agreement] is made as of September __, 2006, by and between RANDOLPH A. MYRSETH [Petitioned, MICHAEL DALLA, City Clerk of the City Of National City [City j, and ANNE CAMPBELL, ROBERT "DUKIE" VALDERRAMA, ADOLFO GONZALES, ROBERT V. MEDINA, ROSALIE "ROSIE" [Real Parties -In -Interest], [Petitioner, City and Real Parties-In- lnterest collectively referred to as "The Parties"), who agree as follows: RECITALS A. All of The Parties now wish to settle and dismiss all disputes and claims between them. The undersigned understand, acknowledge, and agree that the execution of this Agreement is not to be construed as an admission of liability on the part of any party to this Agreement. B. On or about April 5, 2006, Petitioner filed a petition and complaint in the Superior Court of the State of California for the County of San Diego, Case No. GIC 863898, entitled RANDOLPH A. MYRSETH v. MICHAEL DALLA, City Clerk, City Of National City; MIKEL HAAS, Registrar of Voters, San Diego County, Respondents and Defendants; ANNE CAMPBELL, an individual, ; ROBERT "DUKIE" VALDERRAMA, an individual; ADOLFO GONZALES; an individual; ROBERT V. MEDINA, an individual; ROSALIE "ROSIE" ALVARADO, an individual, Real Parties -In -Interest. The petition and complaint sought peremptory and temporary writs of mandate, a temporary restraining order, a preliminary and permanent injunction, and declaratory relief 'Complaint]. The City Clerk was named solely in his official capacity, pursuant to Elections Code section 9295. D. The Complaint alleged that on or about March 23, 2006, Real Parties -In -Interest submitted a ballot argument in favor of Proposition D to the City. Petitioner alleged that the ballot argument exceeded the allowable number of words and was misleading. Petitioner sought to have the ballot argument deleted. E. Real Parties -In -Interest disputed the ballot argument was misleading. The City did not dispute the ballot argument exceeded the word limit. F. The trial court decided that the words in excess of the word limit should be stricken, but that the ballot argument language was not misleading and would not be stricken in its entirety. The trial court issued a writ of mandate directing Respondent Registrar of Voters, County of San Diego, to delete words at the end of the ballot argument to bring the word count of the ballot argument to under the limit. G. Petitioner was awarded his costs in the amount of $819.20 to be equally allocated between City and Real Parties -In -Interest. Petitioner, thereafter, filed a motion for his attorney's fees, which is now pending before the trial court, seeking $17,725.00. II. The Parties now seek to resolve all outstanding issues between them, including the pending motion for attorney's fees. DEFINITIONS As used in this Agreement, the following words and phrases have the meanings stated: Associated Entities and Persons. "Associates Entities and Persons" includes, but is not limited to, spouses, heirs, executors, administrators, representatives, successors -in -interest, assigns, subrogees, agents, employees, attorneys, former employees, or similarly related entities or persons. Claims. "Claims" shall include all claims, rights, liens, demands, liabilities, indebtedness, agreements, promises, and causes of action (asserted, unasserted, known, unknown, or contingent) which arise out of the allegations set forth in the Complaint described in paragraph C, above, and which have accrued as of the date of this Agreement. Costs. "Costs" shall include all costs, losses, liabilities, damages, judgments, expenses, fees, attorneys' fees, and obligations related to the subject of the complaint referenced herein, except specifically excluding the costs of the one-half of the City's half of the $819.20 already awarded by the court as explained in Paragraph 1.1, below. AGREEMENT NOW, TIIEREFORE, the Parties agree as follows: 1. SETTLEMENT: 1.1. Payment: The City promises and agrees to pay to Petitioner the sum of $11,200.00. The settlement warrant check shall be made payable to Edward M. Teyssier, Trust Account and Randolph A. Myrseth. The $819.20 in costs already awarded by the trial court on July 31, 2006, and to he equally allocated between City and Real Parties -In -Interest, are not included in this sum, and remain due and owing. 1.2 Dismissal of Action With Prejudice: Immediately upon receipt of payment pursuant to Section 1.1 above, Petitioner promises and agrees that a Request for Dismissal With Prejudice of the entire action filed by Petitioner shall be filed with the Court in which the action is pending. The Request for Dismissal With Prejudice shall dismiss all parties named in the Complaint. 1.3 Attorneys' Fees Incurred in Litigation: The amount to be paid as set forth in paragraph 1.1 shall he deemed to include all attorneys fees and costs arising from this matter, specifically including the motion for attorney's fees pending before the trial court. 1.4 Negotiation of Settlement Warrant Check: The settlement warrant check from the City shall be delivered to the Petitioner and they shall be authorized to negotiate the settlement warrant check only when the following has occurred: -2- a. A Request for Dismissal With Prejudice of San Diego Superior Court Case Number GIC 863898 has been delivered to the attorneys for the City; and b. The executed original of this Agreement has been delivered to the attorneys for the City. 2. RELEASE OF CLAIMS. 2.1 Release by Petitioner . For and in consideration of the payment of the above -described sum and for other good and valuable consideration, Petitioner on behalf of himself, his heirs, executors, administrators, and assigns hereby fully releases and discharges all named Real Parties -In -Interest, and City and its agents, sureties, officials, officers, directors, representatives, insurers, attorneys, employees, predecessors and assigns, jointly and severally, from any and all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of whatsoever character, nature and kind, known or unknown, in law or in equity, arising from or related to the Complaint, or the underlying facts thereof. 2.2 Waiver of Civil Code section 1542. It is the intention of the Parties hereto that the foregoing release shall he effective as a bar to all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, hereinabove specified to be so barred; and in furtherance of this intention each of the Parties expressly waives any and all rights and benefits conferred upon that party by the provision of Section 1542 of the California Civil Code, which are as follows: "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." It is understood and agreed that the release provision of this subsection is a full and final release of all liability, claims, demands, actions, causes of action, and rights of very nature and kind and that it extinguishes claims that are known, unknown, foreseen, or unforeseen. Each of the Parties understands and acknowledges the significance and consequence of this specific waiver of Section 1542 and assumes full responsibility for any injuries, damages, losses, or liability that he may incur. 3. MISCELLANEOUS. 3.1 Covenant not to sue. Each of the Parties under this Agreement agrees that such party shall not make, assert or maintain any action, demand or lawsuit against any other party, or the other parry's Associated Entities and Persons, for claims released pursuant to this Agreement. 3.2 Further Assurance. Each party shall execute all documents and do all acts reasonably necessary to carry out the intent of this Agreement. - 3 - 3.3 Successors. The provisions of this Agreement shall be deemed to obligate, extend to, and inure to the benefit of, the successors, assignees, transferees, grantees, and indemnities of each of the parties to this Agreement. 3.4 Representations Regarding Authority. The parties represent and warrant that they are legally authorized and competent to execute this Agreement, which is intended to be a legally binding contract dealing with the release and/or conveyance of certain valuable, important rights. Each party represents and warrants that it has not assigned, transferred, or purported to assign or transfer to any person or entity any claim released and each party agrees to defend, indemnify, and hold harmless the other party from any claims that arise as a result of anyone asserting such a claim. 3.5 Independent Counsel. Each of the parties to this Agreement acknowledges and represents that it has been represented by independent counsel of its own choice through all negotiations which preceded the execution of this Agreement, and that it is freely and voluntarily executed this Agreement with the consent, and upon the advice, of independent counsel. Each of the parties to this Agreement further acknowledges that they have read this Agreement and have had its terms and consequences explained by independent counsel. 3.6 California Law. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced, and governed by and under the laws of the State of California. 3.7 Attorneys' Fees. If any dispute arises pertaining to this Agreement, each party shall bear its own cost and attorneys' fees. 3.8 Interpretation. Wherever the context so requires, the singular number shall include the plural; the plural shall include the singular; and the masculine gender shall include the feminine and neuter genders. No provision of this Agreement shall he interpreted against a party to this Agreement because that party or his or its legal representative drafted that provision. 3.9 Captions. The captions by which the sections and subsections of this Agreement are identified are for convenience only and shall have no effect upon its interpretation. 3.10 Integration. This Agreement (after full execution) memorializes and constitutes the entire agreement and understanding between the parties, and supersedes and replaces all prior negotiations, proposed agreements, and agreements, whether written or unwritten. This Agreement may be amended or modified only by a writing signed by all parties to this Agreement which specifically states it is an amendment to this Agreement. 3.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 3.12 Release Not Admission Of Liability. It is expressly acknowledged and agreed that no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, or the sufficiency of any claims, allegations, assertions, or positions -4- of any party; no party has made any such admissions; and this Agreement is entered into solely by way of compromise and settlement only. 3.13 Forum Selection. If any action is brought by any party arising out of or in any way related to any of the terms, covenants and conditions of this Agreement, each party agrees that the forum for such action or actions shall be a court of competent jurisdiction within the County of San Diego, State of California. 3.14 Assignments. The parties hereby represent that they have not previously assigned, transferred, or purported to have assigned or transferred in any manner, the claim held by it, him or her against the other party. Each party agrees to indemnify and hold harmless the other and pay the other's attorneys' fees in the event that any individual or entity asserts a purported written assignment of a claim from the party to that individual or entity. 3.15 Survival Of Representations and Warranties. The representations, warranties, and releases set forth in this agreement shall remain in full force and effect and shall survive the consummation of this Agreement. Dated: Dated: Dated: Dated: /0/3/U4, 015/0b Dated: /O-o 3--0 % Dated: /O/Y/O (o 1)ated: ♦ 6 RANDOLPH A. MYRSETH CITY OF NATIONAL, CITY By: Clifis Za City Manager ROBERT "DUKIE" VALDERRAMA ADOLF'O GONZALES ROBERT V. MEDINA ALIE "ROSI ' ALVARADO -5- APPROVED AS TO FORM AND CONTENT: Dated: By: Dated: Edward Teyssier, Esq. Attorneys for Petitioner RANDOLPH A. MYRSETH GEORGE H. EISE r. III City ► ney IA,S�� Ab ,i'.%' IFdia Gaci . Silva Senior Assist ity Attorney Attorneys for Resp• • ►ent MICIIAEL DALLA, City Clerk of the City Of National City By: MCDOUGAL LOVE ECKIS SMITH BOEHMER & FOLEY Dated: By: James P. Lough, Esq. Attorneys for Real Parties -In -Interest -6- 09'28'06 17:32 FAX 619 336 4327 CITY OF NATIONAL CITY Z 007/008 of any party; no party has made any such admissions; and this Agreement is entered into solely by way of compromise and settlement only. 3.13 Forum Sele t' n. If any action is brought by any party arising out of or in any way related to any of the terms, covenants and conditions of this Agreement, each party agrees that the forum for such action or actions shall be a court of competent jurisdiction within the County of San Diego, State of California. 3.14 AssiEnnnents. The parties hereby represent that they have not previously assigned, transferred, or purported to have assigned or transferred in any manner, the claim held by it, him or her againvt the other party. Each party agrees to indemnify and hold harmless the other and pay the other's attorneys' fees in the event that any individual or entity asserts a purported written assignment of a claim from the party to that individual or entity. 3.15 Survival Of Represerljtions and Warranties. The representations, warranties, and releases set forth in this agreement shall remain in full force and effect and shall survive the consummation of this Agreement. Dated: 1 LG * Ol0 CITY OF NATIONAL CITY Dated: By: Chris Zapata City Manager Dated: Dated: Dated: Dated: Dated: ANNE CAMPBELL ROBERT "DUKIE" VALDERRAMA ADOLFO GONZALES ROBERT V. MEDINA ROSALIE "ROSIE" ALVARADO -5- 09/28/06 17:33 FAX 619 336 4327 CITY OF NATIONAL CITY I1 008/008 APPROVED AS TO FORM AND CONTENT: Dated: 2 Oc.r OG Dated: By: Edward Tcyssicr, Attorneys for Petition RANDOLPH A. MYRSETH GEORGE H. EISER, III City Attorney By: Claudia Gacitua Silva Senior Assistant City Attorney Attorneys for Respondent MICHAEL DALLA, City Clerk of the City Of National City MCDOUGAL LOVE ECKIS SMITH BOEHMER & FOLEY Dated: By: James P. Lough, Esq. Attorneys for Real Parties -In -Interest -6- • 10/23/2006 14:16 FAX 619 440 4907 09/.8✓06 17:38 FAX 619 136 4327 McDougal Love Eck.ls CITY OF N,TIONAL CITY 1002 008/008 APPROVED AS TO FORM AND CONTENT: Dated: Dated: Dated: By: Edward Teyssicr, Esq. Attorneys for Petitioner RANDOLPH A. MYRSETH GEORGE H. EISER, III City Attorney By: Claudia Gacltua Silva Senior Assistant City Attorney Attorneys for Respondent MICHAEL DALLA, City Clerk of the City Of National City MCDOUGAL LOVE ECKIS SMITH & FOLEY -6- ugh, sq. for Real Parties -In -Interest 09/28/2006 THU 17:26 fTX/RX NO 71191 fa008