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HomeMy WebLinkAbout2012 CON PA ARE Holdings, Parking Company of America, PCAM - Settlement Agreement, Release and WaiverNOTE TO FILE 01-08-13 IN THE MATTER OF: Resolution of the Parking Authority of the City of National City authorizing execution of documents, and performance of actions in settlement of litigation (ARE Holdings, Parking Company of America & PCAM). Please note the following: THE FULLY EXECUTED ORIGINAL AGREEMENT HAS BEEN FILED WITH SUCCESSOR AGENCY RESOLUTION NO. 2012-27 UNDER THE SAME FILE NO. (C2012-62) • Only one fully executed original Agreement has been provided for both Resolution Nos. 2012-27 (Successor Agency) and 2012-2 (Parking Authority). NTF SETTLEMENT AGREEMENT, RELEASE AND WAIVER THIS SETTLEMENT AGREEMENT, RELEASE AND WAIVER ("Settlement Agreement") is made this 131 day of December 2012, by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency, a separate and distinct entity from the City of National City (the "Successor Agency"), Parking Authority of the City of National City (the "Parking Authority"), ARE Holdings, LLC ("ARE"), Parking Company of America Management, LLC d/b/a Parking Company of America ("Parking Company"), and PCAM, LLC ("PCAM"). The Successor Agency, Parking Authority, ARE, Parking Company and PCAM may be collectively referred to herein as the "Parties." RECITALS A. On July 19, 2005, Community Development Commission of the City of National City ("CDC"), Parking Authority, and ARE entered into a Disposition and Development Agreement ("Development Agreement") in furtherance of the redevelopment of certain real property located between 11th and 12th Street of National City, bordering National City Boulevard on the East and Roosevelt Ave on the West for a residential and retail mixed -use project. B. On October 15, 2010, ARE filed a lawsuit against CDC and Parking Authority in the Superior Court of the State of California, for the County of San Diego, identified as Case No. 37-2010-00102387-CU-BC-CTL, arising out of obligations and covenants under Development Agreement. On February 14, 2011, the CDC and Parking Authority filed a cross -complaint against ARE and named as additional cross -defendants related entities Parking Company and PCAM under the theory of "alter ego" arising out of obligations and covenants under the Development Agreement. On February 17, 2012, the Court sustained CDC and Parking Authority's demurrer to the first amended complaint of ARE without leave to amend. The above - referenced action herein is referred to as the "Litigation." C. Unrelated to the Litigation, pursuant to Assembly Bill Xl 26 (Chapter 5, Statutes 2011, First Extraordinary Session), as modified by the Supreme Court in California Redevelopment Assn. v. Matosantos (2011) 53 Ca1.4th 231, all redevelopment agencies were dissolved by February 1, 2012, and all assets, properties, contracts, leases, records, buildings and equipment of the former redevelopment agency were transferred to the control of the Successor Agency. On January 10, 2012, City Council of the City of National City adopted Resolution No. 2012-15, pursuant to Part 1.8 of the Health and Safety Code, electing for the City to serve as the Successor Agency to the Community Development Commission (the Redevelopment Agency) upon its dissolution under Assembly Bill X1 26. D. Without admitting any liability or fault, each of the Parties to this Settlement Agreement now desire to resolve all aspects of the Litigation among themselves and to terminate Page 1 of!! the Development Agreement but only upon the full and timely performance of the following terms and conditions in the manner prescribed herein. AGREEMENT NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration the parties hereby agree as follows: 1. Settlement. (a) ARE, Parking Company, and PCAM, hereby acknowledge and agree that this Settlement Agreement is subject to approval by the, Successor Agency, the Oversight Board of the City of National City ("Oversight Board"), and review and approval of the State of California Department of Finance ("Department of Finance"). In the event the Successor Agency, the Oversight Board, and/or of the Department of Finance, or any of them, do not approve this Settlement Agreement, then the Settlement Agreement shall become null and void. (b) ARE, Parking Company, and PCAM agree to and shall convey to the Successor Agency two parcels acquired by PCAM under the Development Agreement, free and clear of any monetary encumbrances and taxes, except those taxes not yet due and payable, located at: (1) 38 West 111 Street, National City, CA; and (2) a vacant lot identified as Parcel No. 555- 114-04-00. The parcels are more fully described on the attached Exhibit "A" (hereinafter "Subject Properties"). (i) Transfer of Subject Properties. PCAM will promptly, on or before December 21, 2012, execute and deliver to the Offices of Christensen & Spath at 550 West C Street, Suite 1660, San Diego, California 92101, properly executed Grant Deeds for subsequent delivery by Christensen & Spath LLP to Stewart Title of California ("Stewart Title"), in a form and content of which is substantially the same as those grant deeds attached hereto as Exhibit "B", subject to approval of the Successor Agency and as approved by Stewart Title sufficient to provide the Successor Agency a CLTA Owners Policy of Title Insurance to the Subject Properties, conveying title to the Subject Properties to the Successor Agency, free and clear of any and all encumbrances, except for taxes not yet due and payable. The cost of the policy of CLTA Owners Title Insurance shall be shared between the Parties with 1/2 of the cost paid for by the Successor Agency and 1/2 of the cost paid for by ARE, PCAM, and/or Parking Company. The Grant Deeds shall NOT be recorded unless and until the Settlement Agreement has been approved by the Successor Agency and the Oversight Board. If the Settlement is approved, then the Grant Deeds shall be recorded on or before December 31t, 2012. (ii) Recordation of Grant Deeds. Upon approval from the Successor Agency and the Oversight Board of the Settlement Agreement, and receipt of executed Grant Deeds from PCAM in form and content described in Section 1(b)(i) above, Successor Agency shall Page 2 of 11 direct Stewart Title to record the Grant Deeds conveying the Subject Properties to the Successor Agency. (iii) Condition of Properties. Successor Agency acknowledges that it is sophisticated and knowledgeable with regard to evaluating, buying, and selling real property in Southern California, and that it had sufficient opportunity to enter upon the Subject Properties and make any and all tests and inspections as Successor Agency deems necessary to satisfy itself as to the condition of the Subject Properties. PCAM shall convey the Subject Properties to Successor Agency "as is" in their present condition, without any representations or warranties of any nature or kind whatsoever from PCAM regarding the Properties or any improvements existing thereon. (iv) Later Government Approvals. If, after the transfer and recordation of the grant deeds contemplated in this Settlement Agreement, the Department of Finance does not approve this Settlement Agreement, the Parties agree that the Successor Agency shall within 30 days of final action of such disapproval convey the Subject Properties back to PCAM, and shall execute and record such documents as are necessary to cause Stewart Title to insure title in PCAM free and clear of encumbrances, except for taxes not yet due and payable. The parties shall share the cost of recording such documents and the costs of CLTA title insurance. In such instance, this Settlement Agreement shall become null and void per Paragraph 1.a, above. (c) PCAM shall retain title to a third parcel located at 1115 Roosevelt Ave, National City, CA acquired under the Development Agreement free and clear of any claims from the Successor Agency and Parking Authority in connection with Development Agreement. (d) Waiver of Fees and Costs. Effective only upon the acquisition of insured title to the Subject Properties vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, and upon the satisfaction of the terms and conditions herein, the Parties agree to waive any and all right to attorneys' fees and costs arising out of this Litigation. (e) Dismissal of the Litigation. Upon the acquisition of insured title to the Subject Properties vested in the Successor Agency, and upon the satisfaction of the terms and conditions herein, including approval by the Successor Agency, Oversight Board, and Department of Finance, the Parties shall file with the court a request that its Litigation be dismissed with prejudice, with a waiver of costs and fees by all parties. Further, upon execution of this settlement agreement by ARE, Parking Company and PCAM, the Successor Agency shall cause the Litigation to be placed upon the Settlement/Dismissal calendar. (f) Termination of Development Agreement. Effective only upon the acquisition of insured title to the Subject Properties vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, and upon the satisfaction of the terms and conditions herein, the Successor Agency, Parking Authority, and Page 3 of 11 ARE agree the Development Agreement shall be terminated and each party shall be released from all obligations under the Development Agreement. 2. Release of Claims. (a) Scope of Releases. The Parties and each of them, by and for itself hereby acknowledges and agrees that the scope of the mutual release and discharge of claims recited in Sections 2(b) and (c) below shall be interpreted to the broadest extent permissible under law. The Parties agree that this Section 2 shall be effective only if and when insured title to the Subject Properties is vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement. Effective upon insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, the Parties shall mutually release one another from all obligations and liabilities with respect to the matters referenced within the Litigation. (b) Mutual Release and Discharge of Claims. Effective only upon the acquisition of insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the settlement, and except for the obligations of the Parties under the terms of this Settlement Agreement, the Parties separately by and for itself, each freely and without coercion, fully and forever releases, acquits and discharges each other party hereto and their attorneys, sureties, agents, servants, representatives, employees, members, Council Members, officers, trustees, subsidiaries, affiliates, partners, predecessors, successors -in -interest, heirs, executors and assigns, and all persons acting by, through, under or in concert with them, of and from any and all past, present, or future claims, demands, obligations, actions, causes of action, damages, costs, attomey's fees, losses of service, expenses, liabilities, suits, and compensation of any kind or nature whatsoever, whether based on tort, contract, or other theory of recovery, claimed by any of them which arise from or relate to facts or events occurring on or before the date of this Settlement Agreement with respect to the Litigation only. The Parties expressly acknowledge and agree that this release shall extend to any and all claims, whether judicial, administrative or otherwise, including, without limitation, claims made with any court, commission, tribunal, board or administrative body with jurisdiction to consider such claims related to the Litigation. This release expressly extends to and bars any and all complaints, actions and/or proceedings, whether judicial or administrative, actually instituted by the Parties, or which could be instituted by any of the Parties, with respect to the Litigation. Nothing in this Settlement Agreement shall be construed to mean that any of the Parties is or are waiving any rights to enforce this Settlement Agreement. (c) Waiver of California Civil Code Section 1542. Page 4 of 11 (i) Effective only upon the acquisition of insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, the release and discharge specified in Section 2(b), above, shall be effective to bar all claims, damages, claims for disability benefits, personal injuries, claims for compensation, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of any character, nature and kind, whether known or unknown, suspected or unsuspected. In furtherance of this intention, the Parties and each of them expressly waives and relinquishes any and all rights and benefits conferred on them by the provisions of Section 1542 of the California Civil Code. as follows: (ii) The Parties understand that California Civil Code Section 1542 provides A general release does not extend to claims which a 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. (iii) It is expressly understood and agreed by the Parties that the possibility of unknown claims exists and has been explicitly taken into account in determining the consideration to be given for this Settlement Agreement and that a portion of the consideration, having been bargained for with full knowledge of the possibility of such unknown claims, was given in exchange for the release and discharge of the matters, claims and/or rights covered by this Settlement Agreement. (iv) The Parties agree that if either or any of them hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the settled claims released hereunder, then he/she/it shall pay to the other parties, in addition to any other damages caused to the other parties thereby, all attorneys' fees incurred by the other parties in defending or otherwise responding to said suit of settled claims. (v) This release shall not operate to release any claims the Parties may later have for the enforcement of the obligations created by this Settlement Agreement. 3. Representations and Warranties. (a) Representation of Comprehension. By entering into this Settlement Agreement, each party represents to the other that (i) each of them fully understands and accepts the terms of this Settlement Agreement; (ii) each of them has relied upon the legal advice of their attorneys or that they have freely and independently chosen not seek the advice of an attorney; (iii) each of them has had a full and ample opportunity to consult with any other professionals of their choice in connection with the rights and liabilities created by this Settlement Agreement; (iv) none of them has any questions with regard to the legal import of any term, word, phrase, or portion of Page 5 of!! this Settlement Agreement, or this Settlement Agreement in its entirety; and (v) each of them accepts the terms of this Settlement Agreement as written. (b) Representation of Approvals. (i) By the Successor Agency and Parking Authority. Except for the pending approval of Settlement Agreement by the Successor Agency, Oversight Board, and Department of Finance, by entering into this Settlement Agreement, the Successor Agency and Parking Authority and the persons signing below on behalf of the Successor Agency and Parking Authority, each represents to ARE, Parking Company, and PCAM that: (1) the persons signing below on behalf of the Successor Agency and Parking Authority are authorized to execute this Settlement Agreement on behalf of the Successor Agency and Parking Authority; and (2) this Settlement Agreement is binding on the Successor Agency and Parking Authority. (ii) By ARE, PCAM, and Parking Company. By entering into this Settlement Agreement, ARE, PCAM, and Parking Company, and the persons signing below on behalf of each entity, each represents to the Successor Agency and Parking authority that: (1) this Settlement Agreement has been duly approved by all necessary board or member actions and no further or additional approvals are needed; (2) the person(s) signing below on behalf of each entity is authorized to execute this Settlement Agreement on behalf of each entity; and (3) this Settlement Agreement is binding on each entity. 4. Compromise. This Settlement Agreement is the result of a compromise and shall never at any time or for any purpose be considered an admission of liability or responsibility on the part of any party hereto, nor shall the payment of any sum of money in consideration for the execution of this Settlement Agreement constitute or be construed as an admission of any liability whatsoever by any of the parties hereto. 5. General Provisions. (a) Attorneys' Fees. The Parties hereto acknowledge and agree that each of them shall bear their own costs, expenses and attorneys' fees arising out of this Settlement Agreement and the Litigation, including without limitation, the negotiation, drafting, and execution of this Settlement Agreement, and all matters connected therewith. In the event any action or proceeding is brought to enforce this Settlement Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs against the non -prevailing parties, in addition to all other relief to which that party or those parties may be entitled. The "prevailing party" shall be that party who obtains substantially the result sought, whether by settlement, dismissal, or judgment. (b) Construction of Settlement Agreement. This Settlement Agreement is the product of negotiation and preparation by and among each party hereto and their respective attorneys. Accordingly, all Parties hereto acknowledge and agree that this Settlement Agreement shall not be deemed prepared or drafted by one party or another, or the attorneys for one party or another, and this Settlement Agreement shall be construed accordingly. Page 6 of 11 (c) Binding Effect. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parents, subsidiaries, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, plaintiffs, defendants and/or persons or entities connected with each of them, including, without limitation, their insurers, sureties, attorneys, consultants and experts. (d) Severability. If any provision or any part of any provision of this Settlement Agreement shall for any reason be held to be invalid, unenforceable or contrary to public policy or any law, then the remainder of this Settlement Agreement shall not be affected thereby and shall remain in full force and effect. (e) Entire Agreement. This Settlement Agreement contains the entire understanding among the Parties to this Settlement Agreement with regard to the Lawsuit, Appeal and/or the Subject Property, and is intended to be and is a final integration thereof. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the parties hereto relating to the terms and conditions of this Settlement Agreement that are not fully expressed herein. (f) Incorporation of Recitals. The Recitals to this Settlement Agreement are hereby incorporated into this Settlement Agreement by this reference. (g) Facsimile Signatures. Facsimile or electronically transmitted copies of signatures shall be acceptable and treated as original signatures. (h) Counterparts. This Settlement Agreement may be executed in counterparts and each executed counterpart shall be as effective as the original. (i) 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. (j) Time of the Essence. Time is of the essence for the full execution of this Settlement Agreement and implementation of each and every provision hereof. (k) Signatories' Representations and Warranties. Each signatory to this Settlement Agreement on behalf of any party does hereby personally represent and warrant that he or she has the authority to execute this Settlement Agreement on behalf of, and fully bind, each party whom such individual represents or purports to represent. (1) Waiver of Right to Collaterally Attack or Set Aside Settlement Agreement. The Parties hereby waive all rights of appeal, motions for new trial, motions for judgments notwithstanding the verdict, motions to set aside a judgment of dismissal, if any, and any and all Page 7 of 11 other direct and/or collateral attacks on this Settlement Agreement. This Settlement Agreement is and shall be a full adjudication, settlement and resolution of all claims and defenses in the Litigation as of the date of this Settlement Agreement; and, except for the covenants expressly provided in this Settlement Agreement, this Settlement Agreement discharges and discharge all claims and defenses presented by the Litigation. This Agreement shall bind successors, heirs and assigns of all of the Parties. (m) Covenant Not to Sue. The Parties covenant and agree never to commence, aid, or in any way or in any manner prosecute against each other any legal action or proceeding based upon the matters released and settled in this Settlement Agreement and/or to commence any legal action or proceeding based upon any other claim, demand, cause of action, obligations, damage or liability arising out of or related to the matters settled, released and compromised in this Settlement Agreement. This covenant does not extend to any legal action or proceeding brought for the purpose of enforcing this Settlement Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to be executed as of the date first written above. [SIGNATURES CONTINUED ON THE FOLLOWING PAGE] Page 8 of!! SUCCESSOR AGENCY: Successor Agency to the Community Development Commission as the National City Redeveient Agency By: Print Name: %�,,J /i'f,,,." •fe.J Its y,¢. A.-est ,� J PARKING AUTHORITY: Parkingority of the City of National City By: PName: . ,J /77d tie" f d .J Its: 4 ARE: ARE Holds LLC, By: t Print Name: ;. c GAY J Its: fiu Parking Comp : y: Parking Com . of America Management, LLC d/b/a Parking Company of America By: Print Name: Its: AA/ PCAM: PCAM, LLC By: v Print Name: 2f `t— � ► ✓ � j Its: 0f1'-- Page9of11 [SIGNATURES CONTINUED ON THE FOLLOWING PAGE] Approved as to Form and Content Dated: December 33 2012 B Dated: December , 2012 By: Olivarez Madruga, P.C. Terence Gallagher, Esq. Attorneys for Plaintiff and Cross -Defendants, ARE Holdings, LLC, Parking Company of America Management, LLC d/b/a Parking Company of America, and PCAM, LLC CHRISTENSEN & SPATH LLP Charles B. Christensen, Esq. Jose A. Garcia, Esq. Attorneys for Defendant and Cross - Complainant, City of National City, as successor agency to Community Development Commission of the City of National City, and Parking Authority of the City of National City Page 10 of 11 EXHIBIT A EXHIBIT "A" VACANT LOT Lot 6, Block 12, National City, in the City of National City, County of San Diego, State of California, according to Map thereof No. 348, filed in the office of the County recorder of San Diego County October 2, 1882. APN: 555-114-04-00 38 WEST 11TH STREET, NATIONAL CITY, CALIFORNIA Lots 1 and 2 in Block 12 of National City, in the City of National City, County of san Diego, State of California, according to Map thereof No. 348, filed in the office of the recorder of San Diego County October 2, 1882. APN: 555-114-01-00 Page 11 of 11 EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: ASSESSOR'S PARCEL NO. 555-114-01-00 GRANT DEED The undersigned grantor declares: This conveyance is exempt from documentary transfer tax under Government Code Section 6103 FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, PCAM, LLC, a California limited liability company hereby GRANTS to Successor Agency to the Community Development Commission as the National City Redevelopment Agency, all of its right, title, and interest in the real property in the City of National City, County of San Diego, State of California described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"), subject to: 1. The lien of all general and special real property, county, or city taxes for the fiscal year 2012-2013, including (without limitation) bonds, special assessment, and personal property taxes, if any, assessed against any former owner, that are not yet due and payable; 2. The lien of supplemental taxes assessed pursuant to Chapter 3.5 of the California Revenue and Taxation Code; 3. All liens (excluding than monetary liens other than those described in items 1 and 2 above), encumbrances, easements, rights of way, leases, covenants, conditions, restrictions reservations, and rights of record; 4. Any oil, gas, and/or mineral lease of record; 5. Alt matters that would be disclosed by a survey of the Property; and 6. Zoning ordinances, regulations, and administrative determinations and any other laws, ordinances, regulations, or orders of any governmental agency having or claiming to have jurisdiction over the use, development, occupancy, or enjoyment of the Property and/or improvements on it. PCAM, LLC, a California limited liability company By Eric Chaves, Manager LEGAL DESCRIPTION The land referred to herein is situated in the State of California, County of San Diego, City of National City, and described as follows: Lots 1 and 2 in Block 12 of National City, in the City of National City, County of san Diego, State of California, according to Map thereof No. 348, filed in the office of the recorder of San Diego County October 2, 1882. APN: 555-114-01-00 (End of Legal Description) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: ASSESSOR'S PARCEL NO. 555-114-04-00 GRANT DEED The undersigned grantor declares: This conveyance is exempt from documentary transfer tax under Government Code Section 6103 FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, PCAM, LLC, a California limited liability company hereby GRANTS to Successor Agency to the Community Development Commission as the National City Redevelopment Agency, all of its right, title, and interest in the real property in the City of National City, County of San Diego, State of California described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"), subject to: 1. The lien of all general and special real property, county, or city taxes for the fiscal year 2012-2013, including (without limitation) bonds, special assessment, and personal property taxes, if any, assessed against any former owner, that are not yet due and payable; 2. The lien of supplemental taxes assessed pursuant to Chapter 3.5 of the California Revenue and Taxation Code; 3. All liens (excluding than monetary liens other than those described in items 1 and 2 above), encumbrances, easements, rights of way, leases, covenants, conditions, restrictions reservations, and rights of record; 4. Any oil, gas, and/or mineral lease of record; 5. All matters that would be disclosed by a survey of the Property; and 6. Zoning ordinances, regulations, and administrative determinations and any other laws, ordinances, regulations, or orders of any governmental agency having or claiming to have jurisdiction over the use, development, occupancy, or enjoyment of the Property and/or improvements on it. PCAM, LLC, a California limited liability company By Eric Chaves, Manager LEGAL DESCRIPTION The land referred to herein is situated in the State of California, County of San Diego, and described as follows: Lot 6, Block 12, National City, in the City of National City, County of San Diego, State of California, according to Map thereof No. 348, filed in the office of the County recorder of San Diego County October 2, 1882. APN: 555-114-04-00 (End of Legal Description) Rai CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by Grant Deed executed December 13, 2012, by ARE Holding, LLC, to the Parking Authority of the City of National City is hereby accepted by order of the Parking Authority per Resolution No. 2012-2, dated December 18, 2012, and the Grantee consents to the recordation thereof by its duly authorized officer. Dated: December 19, 2012. S7:Z „L, Leslie Deese, as Secretary to the Parking Authority ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA } COUNTY OF SAN DIEGO } On December 18, 2012 before me, MICHAEL R. DALLA, City Clerk personally appeared LESLIE DEESE, CITY MANAGER AND SECRETARY TO THE PARKING AUTHORITY who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to on the attached instrument, and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Michael R. Dalla — City CI RESOLUTION NO. 2012 — 2 RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING EXECUTION OF DOCUMENTS, AND PERFORMANCE OF ACTIONS IN SETTLEMENT OF LITIGATION WHEREAS, on July 19, 2005, the Community Development Commission of the City of National City ("CDC"), the Parking Authority, and ARE Holdings, LLC ("ARE"), entered into a Disposition and Development Agreement ("DDA") in furtherance of the redevelopment of certain real property located between 11th and 12th Street in National City, bordering National City Boulevard on the east and Roosevelt Avenue on the west for a residential and retail mixed - use project; and WHEREAS, on October 15, 2010, ARE filed a lawsuit against the CDC and the Parking Authority in the Superior Court of the State of California, identified as Case No. 37- 2010-00102387-CU-BC-CTL, arising out of obligations and covenants under the DDA; and WHEREAS, on February 14, 2011, the CDC and the Parking Authority filed a cross -complaint against ARE, and named as additional cross -defendants related entities Parking Company and PCAM, LLC, under the theory of "alter ego" arising out of obligations and covenants under the DDA; and WHEREAS, the CDC incurred costs in performance of the DDA and subsequent prosecution of the case; and WHEREAS, on February 17, 2012, the Court sustained the CDC's and Parking Authority's demurrer to the First Amended Complaint of ARE without leave to amend. The above -referenced action herein is referred to as the "Litigation." WHEREAS, without admitting any liability or fault, each of the parties to the proposed Settlement Agreement desire to resolve all aspects of the Litigation among themselves and to terminate the DDA; and NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the Settlement Agreement between the Parking Authority; Successor Agency to the Community Development Commission as the National City Redevelopment Agency; ARE Holding, LLC; Parking Company; and PCAM to resolve all aspects of the litigation matter identified as Case No. 37-2010-00102387-CU-BC-CTL, and to perform any additional actions in settlement of the litigation. PASSED and ADOPTED this 18th day of Dece2012. on Morrison, Chairman ATTEST: APPROVE' AA S TO FORM: i Leslie Deese, Secretary Cl. • is Gaci Legal Couns Silva Passed and adopted by the Parking Authority of the City of National City, California, on December 18, 2012 by the following vote, to -wit: Ayes: Boardmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Parking Authority LESLIE DEESE Secretary, Parking Authority By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2012-2 of the Parking Authority of the City of National City, California, passed and adopted on December 18, 2012. Secretary, Parking Authority By: Deputy City of National City, California PARKING AUTHORITY OF THE CITY OF NATIONAL CITY CC 1 d \CSC.--� MEETING DATE: December 18, 2012 AGENDA ITEM NO. 1 ITEM TITLE: Resolution of the Parking Authority of the City of National City authorizing execution of documents, and performance of actions in settlement of litigation PREPARED BY: Claudia Gacitua Silva PHONE: Ext. 4222 EXPLANATION: Please see attached staff report. DEPARTMENT: Cyty Attorney APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt proposed resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Staff report Settlement Agreement Proposed resolution RESOLUTION NO. 2012 — RESOLUTION OF THE PARKING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING EXECUTION OF DOCUMENTS, AND PERFORMANCE OF ACTIONS IN SETTLEMENT OF LITIGATION WHEREAS, on July 19, 2005, the Community Development Commission of the City of National City ("CDC"), the Parking Authority, and ARE Holdings, LLC ("ARE"), entered into a Disposition and Development Agreement ("DDA") in furtherance of the redevelopment of certain real property located between 11th and 12th Street in National City, bordering National City Boulevard on the east and Roosevelt Avenue on the west for a residential and retail mixed - use project; and WHEREAS, on October 15, 2010, ARE filed a lawsuit against the CDC and the Parking Authority in the Superior Court of the State of California, identified as Case No. 37- 2010-00102387-CU-BC-CTL, arising out of obligations and covenants under the DDA; and WHEREAS, on February 14, 2011, the CDC and the Parking Authority filed a cross -complaint against ARE, and named as additional cross -defendants related entities Parking Company and PCAM, LLC, under the theory of "alter ego" arising out of obligations and covenants under the DDA; and WHEREAS, the CDC incurred costs in performance of the DDA and subsequent prosecution of the case; and WHEREAS, on February 17, 2012, the Court sustained the CDC's and Parking Authority's demurrer to the First Amended Complaint of ARE without leave to amend. The above -referenced action herein is referred to as the "Litigation." WHEREAS, without admitting any liability or fault, each of the parties to the proposed Settlement Agreement desire to resolve all aspects of the Litigation among themselves and to terminate the DDA; and NOW, THEREFORE, BE IT RESOLVED that the Parking Authority of the City of National City hereby authorizes the Chairman to execute the Settlement Agreement between the Parking Authority; Successor Agency to the Community Development Commission as the National City Redevelopment Agency; ARE Holding, LLC; Parking Company; and PCAM to resolve all aspects of the litigation matter identified as Case No. 37-2010-00102387-CU-BC-CTL, and to perform any additional actions in settlement of the litigation. PASSED and ADOPTED this 18th day of December, 2012. Ron Morrison, Chairman ATTEST: APPROVED AS TO FORM: Leslie Deese, Secretary Claudia Gacitua Silva Legal Counsel Staff Report BACKGROUND On July 19, 2005, the former Community Development Commission of the City of National City ("CDC"), the Parking Authority, and ARE Holdings, LLC ("ARE"), entered into a Disposition and Development Agreement ("DDA") in furtherance of the redevelopment of certain real property located between 11th and 12th Street in National City, bordering National City Boulevard on the east and Roosevelt Avenue on the west for a residential and retail mixed -use project. The DDA included provisions in which ARE was to acquire certain properties for development and if they were unable to, then the CDC would acquire them. Accordingly, the CDC, pursuant to the DDA, sought acquisition of certain properties. ARE was financially obligated under the DDA to pay for the CDC's acquisition costs, which amounted to approximately $140,000. ARE failed to reimburse the CDC for its acquisition costs, and eventually, the CDC abandoned the acquisitions. ARE did not develop the project and did not complete its obligations under the DDA. ARE, however, did demand the CDC purchase certain properties it had acquired as part of the development project. The CDC did not purchase those properties. THE LAWSUIT On October 15, 2010, ARE filed a lawsuit against the CDC and the Parking Authority in the Superior Court of the State of California, identified as Case No. 37-2010-00102387-CU-BC-CTL, arising out of obligations and covenants under the DDA. ARE alleged the CDC and Parking Authority had breached the DDA by failing to purchase the three properties ARE had acquired for their development project. ARE alleged the CDC and Parking Authority were obligated to purchase any properties acquired by ARE, at ARE's purchase price, upon ARE's demand. On February 14, 2011, the CDC and the Parking Authority filed a cross - complaint against ARE, and named as additional cross -defendants related entities Parking Company and PCAM, LLC, under the theory of "alter ego" arising out of obligations and covenants under the DDA. The cross -complaint alleged ARE breached the DDA, owed the CDC money, and was obligated to pay for the attorneys' fees and costs incurred in prosecuting this action (approximately $100,000). While ARE alleges it purchased the properties under the DDA, ARE did not actually acquire the properties. Instead, PCAM purchased the properties. PCAM had no contractual relationship with the CDC or the Parking Authority. The CDC and Parking Authority maintained that ARE's lawsuit lacked merit. The Court agreed. On February 17, 2012, the Court sustained the CDC's and Parking Authority's demurrer to the First Amended Complaint of ARE without leave to amend. ARE no longer had a case against the CDC or the Parking Authority. The CDC's and Parking Authority's cross -complaint, however, remained. Trial is currently set to commence January 11, 2013. THE SETTLEMENT The Parties engaged in mediation in effort to resolve the outstanding issues. Of the three properties PCAM acquired for ARE, one has an outstanding mortgage balance (likely higher than the estimated value of the property) and the other two do not. In effort to resolve the cross -complaint, the CDC would accept the transfer of two properties without mortgages in satisfaction of the amount due by ARE to the CDC. One parcel is vacant land, and the other parcel has a structure on it which is boarded up. The two properties are roughly estimated to amount to a value of $122,500. Accordingly, the two properties would be deeded to the CDC which is the entity that paid for the acquisition costs. The descriptions of the two properties are specified in the attached settlement agreement. RECOMMENDATION Staff recommends authorizing the Chairman to execute the settlement agreement, accept the grant deeds, and perform actions necessary in settlement of this litigation. Under the terms of the Settlement Agreement, the Successor Agency will execute and accept title to each of the parcels being conveyed to the Successor Agency, and authorize the Chairman, or his designee, to perform such acts to and execute such other documents as are necessary to settle the litigation and to acquire title insurance concerning the parcels being acquired, in accordance with title company procedures and policies. These actions would require Oversight Board approval and DOF approval before they are final. The settlement agreement contains these contingencies. This item is on the Oversight Board agenda for December 19, 2012. SETTLEMENT AGREEMENT, RELEASE AND WAIVER THIS SETTLEMENT AGREEMENT, RELEASE AND WAIVER ("Settlement Agreement") is made this 13th day of December 2012, by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency, a separate and distinct entity from the City of National City (the "Successor Agency"), Parking Authority of the City of National City (the "Parking Authority"), ARE Holdings, LLC ("ARE"), Parking Company of America Management, LLC d/b/a Parking Company of America ("Parking Company"), and PCAM, LLC ("PCAM"). The Successor Agency, Parking Authority, ARE, Parking Company and PCAM may be collectively referred to herein as the "Parties." RECITALS A. On July 19, 2005, Community Development Commission of the City of National City ("CDC"), Parking Authority, and ARE entered into a Disposition and Development Agreement ("Development Agreement") in furtherance of the redevelopment of certain real property located between 11th and 12th Street of National City, bordering National City Boulevard on the East and Roosevelt Ave on the West for a residential and retail mixed -use project. B. On October 15, 2010, ARE filed a lawsuit against CDC and Parking Authority in the Superior Court of the State of California, for the County of San Diego, identified as Case No. 37-2010-00102387-CU-BC-CTL, arising out of obligations and covenants under Development Agreement. On February 14, 2011, the CDC and Parking Authority filed a cross -complaint against ARE and named as additional cross -defendants related entities Parking Company and PCAM under the theory of "alter ego" arising out of obligations and covenants under the Development Agreement. On February 17, 2012, the Court sustained CDC and Parking Authority's demurrer to the first amended complaint of ARE without leave to amend. The above - referenced action herein is referred to as the "Litigation." C. Unrelated to the Litigation, pursuant to Assembly Bill X1 26 (Chapter 5, Statutes 2011, First Extraordinary Session), as modified by the Supreme Court in California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, all redevelopment agencies were dissolved by February 1, 2012, and all assets, properties, contracts, leases, records, buildings and equipment of the former redevelopment agency were transferred to the control of the Successor Agency. On January 10, 2012, City Council of the City of National City adopted Resolution No. 2012-15, pursuant to Part 1.8 of the Health and Safety Code, electing for the City to serve as the Successor Agency to the Community Development Commission (the Redevelopment Agency) upon its dissolution under Assembly Bill X1 26. D. Without admitting any liability or fault, each of the Parties to this Settlement Agreement now desire to resolve all aspects of the Litigation among themselves and to terminate Page 1 of 11 the Development Agreement but only upon the full and timely performance of the following terms and conditions in the manner prescribed herein. AGREEMENT NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration the parties hereby agree as follows: 1. Settlement. (a) ARE, Parking Company, and PCAM, hereby acknowledge and agree that this Settlement Agreement is subject to approval by the, Successor Agency, the Oversight Board of the City of National City ("Oversight Board"), and review and approval of the State of California Department of Finance ("Department of Finance"). In the event the Successor Agency, the Oversight Board, and/or of the Department of Finance, or any of them, do not approve this Settlement Agreement, then the Settlement Agreement shall become null and void. (b) ARE, Parking Company, and PCAM agree to and shall convey to the Successor Agency two parcels acquired by PCAM under the Development Agreement, free and clear of any monetary encumbrances and taxes, except those taxes not yet due and payable, located at: (1) 38 West 11`h Street, National City, CA; and (2) a vacant lot identified as Parcel No. 555- 114-04-00. The parcels are more fully described on the attached Exhibit "A" (hereinafter "Subject Properties"). (i) Transfer of Subject Properties. PCAM will promptly, on or before December 21, 2012, execute and deliver to the Offices of Christensen & Spath at 550 West C Street, Suite 1660, San Diego, California 92101, properly executed Grant Deeds for subsequent delivery by Christensen & Spath LLP to Stewart Title of California ("Stewart Title"), in a form and content of which is substantially the same as those grant deeds attached hereto as Exhibit "B", subject to approval of the Successor Agency and as approved by Stewart Title sufficient to provide the Successor Agency a CLTA Owners Policy of Title Insurance to the Subject Properties, conveying title to the Subject Properties to the Successor Agency, free and clear of any and all encumbrances, except for taxes not yet due and payable. The cost of the policy of CLTA Owners Title Insurance shall be shared between the Parties with 1/2 of the cost paid for by the Successor Agency and 1/2 of the cost paid for by ARE, PCAM, and/or Parking Company. The Grant Deeds shall NOT be recorded unless and until the Settlement Agreement has been approved by the Successor Agency and the Oversight Board. If the Settlement is approved, then the Grant Deeds shall be recorded on or before December 31 g, 2012. (ii) Recordation of Grant Deeds. Upon approval from the Successor Agency and the Oversight Board of the Settlement Agreement, and receipt of executed Grant Deeds from PCAM in form and content described in Section 1(b)(i) above, Successor Agency shall Page 2of11 direct Stewart Title to record the Grant Deeds conveying the Subject Properties to the Successor Agency. (iii) Condition of Properties. Successor Agency acknowledges that it is sophisticated and knowledgeable with regard to evaluating, buying, and selling real property in Southern California, and that it had sufficient opportunity to enter upon the Subject Properties and make any and all tests and inspections as Successor Agency deems necessary to satisfy itself as to the condition of the Subject Properties. PCAM shall convey the Subject Properties to Successor Agency "as is" in their present condition, without any representations or warranties of any nature or kind whatsoever from PCAM regarding the Properties or any improvements existing thereon. (iv) Later Government Approvals. If, after the transfer and recordation of the grant deeds contemplated in this Settlement Agreement, the Department of Finance does not approve this Settlement Agreement, the Parties agree that the Successor Agency shall within 30 days of final action of such disapproval convey the Subject Properties back to PCAM, and shall execute and record such documents as are necessary to cause Stewart Title to insure title in PCAM free and clear of encumbrances, except for taxes not yet due and payable. The parties shall share the cost of recording such documents and the costs of CLTA title insurance. In such instance, this Settlement Agreement shall become null and void per Paragraph 1.a, above. (c) PCAM shall retain title to a third parcel located at 1115 Roosevelt Ave, National City, CA acquired under the Development Agreement free and clear of any claims from the Successor Agency and Parking Authority in connection with Development Agreement. (d) Waiver of Fees and Costs. Effective only upon the acquisition of insured title to the Subject Properties vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, and upon the satisfaction of the terms and conditions herein, the Parties agree to waive any and all right to attorneys' fees and costs arising out of this Litigation. (e) Dismissal of the Litigation. Upon the acquisition of insured title to the Subject Properties vested in the Successor Agency, and upon the satisfaction of the terms and conditions herein, including approval by the Successor Agency, Oversight Board, and Department of Finance, the Parties shall file with the court a request that its Litigation be dismissed with prejudice, with a waiver of costs and fees by all parties. Further, upon execution of this settlement agreement by ARE, Parking Company and PCAM, the Successor Agency shall cause the Litigation to be placed upon the Settlement/Dismissal calendar. (0 Termination of Development Agreement. Effective only upon the acquisition of insured title to the Subject Properties vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, and upon the satisfaction of the terms and conditions herein, the Successor Agency, Parking Authority, and Page 3of11 ARE agree the Development Agreement shall be terminated and each party shall be released from all obligations under the Development Agreement. 2. Release of Claims. (a) Scope of Releases. The Parties and each of them, by and for itself hereby acknowledges and agrees that the scope of the mutual release and discharge of claims recited in Sections 2(b) and (c) below shall be interpreted to the broadest extent permissible under law. The Parties agree that this Section 2 shall be effective only if and when insured title to the Subject Properties is vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement. Effective upon insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, the Parties shall mutually release one another from all obligations and liabilities with respect to the matters referenced within the Litigation. (b) Mutual Release and Discharge of Claims. Effective only upon the acquisition of insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the settlement, and except for the obligations of the Parties under the terms of this Settlement Agreement, the Parties separately by and for itself, each freely and without coercion, fully and forever releases, acquits and discharges each other party hereto and their attorneys, sureties, agents, servants, representatives, employees, members, Council Members, officers, trustees, subsidiaries, affiliates, partners, predecessors, successors -in -interest, heirs, executors and assigns, and all persons acting by, through, under or in concert with them, of and from any and all past, present, or future claims, demands, obligations, actions, causes of action, damages, costs, attorney's fees, losses of service, expenses, liabilities, suits, and compensation of any kind or nature whatsoever, whether based on tort, contract, or other theory of recovery, claimed by any of them which arise from or relate to facts or events occurring on or before the date of this Settlement Agreement with respect to the Litigation only. The Parties expressly acknowledge and agree that this release shall extend to any and all claims, whether judicial, administrative or otherwise, including, without limitation, claims made with any court, commission, tribunal, board or administrative body with jurisdiction to consider such claims related to the Litigation. This release expressly extends to and bars any and all complaints, actions and/or proceedings, whether judicial or administrative, actually instituted by the Parties, or which could be instituted by any of the Parties, with respect to the Litigation. Nothing in this Settlement Agreement shall be construed to mean that any of the Parties is or are waiving any rights to enforce this Settlement Agreement. (c) Waiver of California Civil Code Section 1542. Page 4 of 11 (i) Effective only upon the acquisition of insured title to the Subject Properties being vested in the Successor Agency and provided that the Department of Finance does not thereafter disapprove of the Settlement Agreement, the release and discharge specified in Section 2(b), above, shall be effective to bar all claims, damages, claims for disability benefits, personal injuries, claims for compensation, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorneys' fees and damages of any character, nature and kind, whether known or unknown, suspected or unsuspected. In furtherance of this intention, the Parties and each of them expressly waives and relinquishes any and all rights and benefits conferred on them by the provisions of Section 1542 of the California Civil Code. as follows: (ii) The Parties understand that California Civil Code Section 1542 provides A general release does not extend to claims which a 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. (iii) It is expressly understood and agreed by the Parties that the possibility of unknown claims exists and has been explicitly taken into account in determining the consideration to be given for this Settlement Agreement and that a portion of the consideration, having been bargained for with full knowledge of the possibility of such unknown claims, was given in exchange for the release and discharge of the matters, claims and/or rights covered by this Settlement Agreement. (iv) The Parties agree that if either or any of them hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the settled claims released hereunder, then he/she/it shall pay to the other parties, in addition to any other damages caused to the other parties thereby, all attorneys' fees incurred by the other parties in defending or otherwise responding to said suit of settled claims. (v) This release shall not operate to release any claims the Parties may later have for the enforcement of the obligations created by this Settlement Agreement. 3. Representations and Warranties. (a) Representation of Comprehension. By entering into this Settlement Agreement, each party represents to the other that (i) each of them fully understands and accepts the terms of this Settlement Agreement; (ii) each of them has relied upon the legal advice of their attorneys or that they have freely and independently chosen not seek the advice of an attorney; (iii) each of them has had a full and ample opportunity to consult with any other professionals of their choice in connection with the rights and liabilities created by this Settlement Agreement; (iv) none of them has any questions with regard to the legal import of any term, word, phrase, or portion of Page 5 of 11 this Settlement Agreement, or this Settlement Agreement in its entirety; and (v) each of them accepts the terms of this Settlement Agreement as written. (b) Representation of Approvals. (i) By the Successor Agency and Parking Authority. Except for the pending approval of Settlement Agreement by the Successor Agency, Oversight Board, and Department of Finance, by entering into this Settlement Agreement, the Successor Agency and Parking Authority and the persons signing below on behalf of the Successor Agency and Parking Authority, each represents to ARE, Parking Company, and PCAM that: (1) the persons signing below on behalf of the Successor Agency and Parking Authority are authorized to execute this Settlement Agreement on behalf of the Successor Agency and Parking Authority; and (2) this Settlement Agreement is binding on the Successor Agency and Parking Authority. (ii) By ARE, PCAM, and Parking Company. By entering into this Settlement Agreement, ARE, PCAM, and Parking Company, and the persons signing below on behalf of each entity, each represents to the Successor Agency and Parking authority that: (1) this Settlement Agreement has been duly approved by all necessary board or member actions and no further or additional approvals are needed; (2) the person(s) signing below on behalf of each entity is authorized to execute this Settlement Agreement on behalf of each entity; and (3) this Settlement Agreement is binding on each entity. 4. Compromise. This Settlement Agreement is the result of a compromise and shall never at any time or for any purpose be considered an admission of liability or responsibility on the part of any party hereto, nor shall the payment of any sum of money in consideration for the execution of this Settlement Agreement constitute or be construed as an admission of any liability whatsoever by any of the parties hereto. 5. General Provisions. (a) Attorneys' Fees. The Parties hereto acknowledge and agree that each of them shall bear their own costs, expenses and attorneys' fees arising out of this Settlement Agreement and the Litigation, including without limitation, the negotiation, drafting, and execution of this Settlement Agreement, and all matters connected therewith. In the event any action or proceeding is brought to enforce this Settlement Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs against the non -prevailing parties, in addition to all other relief to which that party or those parties may be entitled. The "prevailing party" shall be that party who obtains substantially the result sought, whether by settlement, dismissal, or judgment. (b) Construction of Settlement Agreement. This Settlement Agreement is the product of negotiation and preparation by and among each party hereto and their respective attorneys. Accordingly, all Parties hereto acknowledge and agree that this Settlement Agreement shall not be deemed prepared or drafted by one party or another, or the attorneys for one party or another, and this Settlement Agreement shall be construed accordingly. Page 6 of 11 (c) Binding Effect. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parents, subsidiaries, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, plaintiffs, defendants and/or persons or entities connected with each of them, including, without limitation, their insurers, sureties, attorneys, consultants and experts. (d) Severability. If any provision or any part of any provision of this Settlement Agreement shall for any reason be held to be invalid, unenforceable or contrary to public policy or any law, then the remainder of this Settlement Agreement shall not be affected thereby and shall remain in full force and effect. (e) Entire Agreement. This Settlement Agreement contains the entire understanding among the Parties to this Settlement Agreement with regard to the Lawsuit, Appeal and/or the Subject Property, and is intended to be and is a final integration thereof. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the parties hereto relating to the terms and conditions of this Settlement Agreement that are not fully expressed herein. (f) Incorporation of Recitals. The Recitals to this Settlement Agreement are hereby incorporated into this Settlement Agreement by this reference. (g) Facsimile Signatures. Facsimile or electronically transmitted copies of signatures shall be acceptable and treated as original signatures. (h) Counterparts. This Settlement Agreement may be executed in counterparts and each executed counterpart shall be as effective as the original. (i) 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. (j) Time of the Essence. Time is of the essence for the full execution of this Settlement Agreement and implementation of each and every provision hereof. (k) Signatories' Representations and Warranties. Each signatory to this Settlement Agreement on behalf of any party does hereby personally represent and warrant that he or she has the authority to execute this Settlement Agreement on behalf of, and fully bind, each party whom such individual represents or purports to represent. (1) Waiver of Right to Collaterally Attack or Set Aside Settlement Agreement. The Parties hereby waive all rights of appeal, motions for new trial, motions for judgments notwithstanding the verdict, motions to set aside a judgment of dismissal, if any, and any and all Page 7 all other direct and/or collateral attacks on this Settlement Agreement. This Settlement Agreement is and shall be a full adjudication, settlement and resolution of all claims and defenses in the Litigation as of the date of this Settlement Agreement; and, except for the covenants expressly provided in this Settlement Agreement, this Settlement Agreement discharges and discharge all claims and defenses presented by the Litigation. This Agreement shall bind successors, heirs and assigns of all of the Parties. (m) Covenant Not to Sue. The Parties covenant and agree never to commence, aid, or in any way or in any manner prosecute against each other any legal action or proceeding based upon the matters released and settled in this Settlement Agreement and/or to commence any legal action or proceeding based upon any other claim, demand, cause of action, obligations, damage or liability arising out of or related to the matters settled, released and compromised in this Settlement Agreement. This covenant does not extend to any legal action or proceeding brought for the purpose of enforcing this Settlement Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement to be executed as of the date first written above. [SIGNATURES CONTINUED ON THE FOLLOWING PAGE] Page 8of11 SUCCESSOR AGENCY: Successor Agency to the Community Development Commission as the National City Redevelopment Agency By: Print Name: Its: PARKING AUTHORITY: Parking Authority of the City of National City By: Print Name: Its: ARE: ARE Holdings, LLC, By: Print Name: Its: Parking Company: Parking Company of America Management, LLC d/b/a Parking Company of America By: Print Name: Its: PCAM: PCAM, LLC By: Print Name: Its: Page 9 of 11 [SIGNATURES CONTINUED ON THE FOLLOWING PAGE] Approved as to Form and Content Dated: December _, 2012 By: Olivarez Madruga, P.C. Terence Gallagher, Esq. Attorneys for Plaintiff and Cross -Defendants, ARE Holdings, LLC, Parking Company of America Management, LLC d/b/a Parking Company of America, and PCAM, LLC CHRISTENSEN & SPATH LLP Dated: December _, 2012 By: Charles B. Christensen, Esq. Jose A. Garcia, Esq. Attorneys for Defendant and Cross - Complainant, City of National City, as successor agency to Community Development Commission of the City of National City, and Parking Authority of the City of National City Page 10 of 11 EXHIBIT "A" VACANT LOT Lot 6, Block 12, National City, in the City of National City, County of San Diego, State of California, according to Map thereof No. 348, filed in the office of the County recorder of San Diego County October 2, 1882. APN: 555-114-04-00 38 WEST 11TH STREET, NATIONAL CITY, CALIFORNIA Lots I and 2 in Block 12 of National City, in the City of National City, County of san Diego, State of California, according to Map thereof No. 348, filed in the office of the recorder of San Diego County October 2, 1882. APN: 555-114-01-00 Page 11 of 11 OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax ARE HOLDINGS, PARKING COMPANY OF AMERICA, PCAM Settlement Agreement, Release and Waiver Litigation Ginny Miller (City Atty.) Forwarded Copy of Agreement to ARE Holdings, Parking Company of America and PCAM