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Home My WebLink About2013 CON SA Beauchamp Family Trust - Addendum Settlement - Release of ClaimsADDENDUM TO SETTLEMENT AND MUTUAL RELEASE OF CLAIMS This is an Addendum ("Addendum") to the Settlement Agreement and Mutual Release of Claims dated December 22, 2005 ("Agreement") between The Community Development Commission of the City of National City ("CDC"), and the Beauchamp Family Trust ("Beauchamp"). The Agreement is hereby supplemented and modified as follows. Whenever there is any conflict between the Addendum and the Agreement, the provisions of the Addendum shall govern. Terms used in this Addendum and not otherwise defined shall have the same meanings given to them in the Agreement. On February 1, 2012, the CDC became the Successor Agency to the Community Development Commission as the National City Redevelopment Agency ("Agency"). The Parties have again come to a dispute about their relative rights and obligations under the Agreement, and having met and conferred and reached an agreement, now enter into this Addendum for the purpose of settling past claims for payment of environmental cleanup costs that the CDC/Agency had incurred at the Site and to restructure the process for the discharge of Beauchamp's responsibilities to reimburse the Agency for future investigation and remediation costs at the Site. 11. DEFINITIONS 5. "Past Environmental Costs" means Environmental Costs incurred by the CDC/Agency between August 15, 2005 and April 2, 2013 as a result of Contamination at the Site. 6. "Future Environmental Costs" means Environmental Costs incurred by the Agency after April 2, 2013 due to the Contamination of the ground water with the dry-cleaner solvent PCE at the Site. 7. "Parties" means the Agency and Beauchamp. IV. TERMS OF SETTLEMENT AND RELEASE 1. CONSIDERATION a. Settlement for Past Environmental Costs. Beauchamp agrees to reimburse the Agency $27,500 to settle and compromise all Claims for payment of Past Environmental Costs for the period between August 15, 2005 and April 2, 2013. In furtherance of this compromise and settlement, Beauchamp hereby agrees to pay the $27,500 to the Agency no later than March 1, 2014, which shall be paid on a monthly basis in the amount of $2,750.00 commencing June 1, 2013. In the event that Beauchamp does not submit timely payment to the Agency as provided herein, interest on the unpaid amount shall accrue at 12% per annum, Education Village Project Addendum to Beauchamp/City Settlement May 2013 1 b. Cooperation and Reimbursement for Future Environmental Costs. Beauchamp agrees upon execution of this Agreement to submit a payment of Five Thousand Dollars ($5,000) as its 50% contribution to Future Environmental Costs, currently estimated not to exceed the amount of Ten Thousand Dollars. It is hoped no further Future Environmental Costs will be incurred. In the event that the Agency is required to incur additional Future Environmental Costs above and beyond the $10,000 currently estimated, it agrees to consult with Beauchamp on all remaining environmental activities that DEH may require at the Site. Those activities required by DEH shall be contracted for by the Agency. Beauchamp shall reimburse the Agency for 50% of all Future Environmental Costs incurred by the Agency for the activities required to investigate and remediate the Contamination at the Site. The Agency will submit tenders to Beauchamp for reimbursement as the Future Environmental Costs are incurred. The tenders will include supporting invoices documenting the costs incurred. The Agency will submit the tenders to: Beauchamp Family Trust, 327 West 11thStreet, National City, California 91950. c. Disputes Reaardinq Environmental Costs. Upon receipt of the tender described in Paragraph IV.1.b., Beauchamp will notify the Agency of any disputes regarding any of the claimed Future Environmental Costs in writing to Richard Opper, Esq., Opper & Varco LLP, 225 Broadway, Suite 1900, San Diego CA 92101, facsimile # 619-231-5853, within fifteen (15) days of receipt of the tender. The Parties agree to first work together to try to informally resolve any disputes. If such informal negotiations fail, the Parties shall then engage in mediation of the dispute. If mediation does not resolve the dispute, the Parties shall enter into binding arbitration of the dispute. The mediator and arbitrator will be mutually selected by the Parties. Beauchamp will reimburse the Agency within thirty (30) days of successful mediation or receipt of the arbitration award. Checks shall be made payable to The City of National City. Checks will be sent c/o Mr. Bradley Raulston, Successor Agency to the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, CA 91950. Late payments will accrue interest at a rate of 6% per annum. The Parties further agree that the time within which Agency must make claims to seek the cost recovery contemplated by this Agreement (including enforcement) of this Agreement is tolled from the execution of this Agreement, and that time -barred defenses by Beauchamp are waived until all Environmental Costs have been paid by Beauchamp to the Agency. If the Parties proceed to binding arbitration, the Parties preserve all rights and defenses, with the exception of Beauchamp's agreement that its status will be tolled such that in future arbitration Beauchamp will retain its status as a "responsible party" as a "current owner". 5. GENERAL PROVISIONS m. Notices. With the exception of those notices identified in Paragraphs IV.1.b. and IV.1.c. above, all notices required or permitted under this Agreement shall be in Education Village Protect Addendum to Beauchamp/City Settlement May 2013 2 writing (either by mail or facsimile), and addressed to the Parties for whom it is intended at the address set forth herein or such other address designated from time to time in writing to all other Parties: To the Agency: c/o The City of National City Leslie Deese, City Manager 1243 National City Boulevard National City, CA 91950 With a copy to: c/o Opper & Varco LLP Richard Opper, Esq. 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 231-5858 Facsimile: (619) 231-5853 To Beauchamp: The Beauchamp Family Trust 327 West 11 `h St. National City, CA 91950 Telephone: (619) 477-7700 Facsimile: (619) 477-8773 With a copy to: Sandra J. Brower, Esq. Sullivan Hill Lewin Rez & Engel, APLC 550 West C Street, 15th Floor San Diego, CA 92101 Telephone: (619) 233-4100 Facsimile: (619) 231-4372 Any notice so delivered or served shall be deemed made upon receipt by the Parties served or to whom notice is so given. Notice may also be made by electronic mail transmission or by facsimile transmission and deemed made as of the date and time of that transmission, if said notice is followed up by duplicate written notice sent by certified United States mail, return receipt requested, postage prepaid, prior to the close of the next business day. Education Village Project Addendum to Beauchamp/City Settlement May 2013 3 IN WITNESS WHEREOF, the Parties enter into this Addendum which shall become effective and fully -enforceable in all respects as of the latest date that this Addendum is fully - executed by all the Parties. Dated: / 3 SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY By: Name: Ron Morrison Title: Chairman i Dated: •- 'S` t " % --3 1 THE BEAUCHAMP FAMILY TRUST By: Z -a.! /,- Name: Alton B. Beauchampstee on behalf of the Beauchamp Family Trust APPROVED AS TO FORM: RICHARD G. OPPE OPPER & VARCO LLP SPECIAL COUNSEL Education Village Project Addendum to Beauchamp/City Settlement May2013 4 SANDRA J. BROW SULLIVAN HILL. WIN REZ & ENGEL, APLC ATTORNEYS'FOR THE BEAUCHAMP FAMILY TRUST RESOLUTION NO. 2013 — 36 RESOLUTION OF THE BOARD OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY RATIFYING THE ADDENDUM TO THE SETTLEMENT AND MUTUAL RELEASE OF ALL CLAIMS DATED DECEMBER 22, 2005 BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE BEAUCHAMP FAMILY TRUST WHEREAS, the Community Development Commission of the City of National City and the Beauchamp Family Trust had previously entered into a Settlement Agreement and Mutual Release of Claims dated December 22, 2005; and WHEREAS, the Parties had come again to a dispute about their relative rights and obligations under the Agreement regarding the appropriate amounts due for environmental cleanup costs; and WHEREAS, this Addendum is a result of a meet and confer between the parties for the purpose of settling past claims for payment of environmental cleanup costs that the former Community Development Commission acting as the Redevelopment Agency (now the Successor Agency to the Community Development Commission as the National City Redevelopment Agency) had incurred and to restructure the process for the discharge of the Beauchamp Family Trust's responsibilities to reimburse the Successor Agency for future investigation and remediation costs. NOW, THEREFORE, BE IT RESOLVED that the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby ratifies the Addendum to Settlement and Mutual Release of Claims, fully -executed on May 29, 2013. PASSED and ADOPTED this 18th day of June, 2 on Morrison, Chairman ATTEST: Michael R. Della, City Clerk as Secretary to the Successor Agency A PROV S TO FORM: G. •itua Silva Success. Agency Counsel Passed and adopted by the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California, on June 18, 2013 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 of the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California City Clerk Sefving as Secretary to the Successor Agency By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2013-36 of the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California, passed and adopted on June 18, 2013. City Clerk Serving as Secretary to the Successor Agency By: Deputy SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AGENDA STATEMENT MEETING DATE: June 18, 2013 F" '\ \\ ti tc�-ko-1} AGENDA ITEM NO. 2 ITEM TITLE: Resolution of the Successor Agency to the CDC as the National City Redevelopment Agency ratifying the Addendum to the Settlement and Mutual Release of Claims dated December 22, 2005 between the CDC and the Beauchamp Family Trust PREPARED BY: Claudia Gacitua Silva DEPARTMENT: Ext. 4222 PHONE: EXPLANATION: This Resolution ratifies the Successor Agency entering into an Addendum to the S -'- r ent and Mutual Release of all Claims for the purpose of settling past claims for payment of environmental cleanup costs that the CDC/Successor Agency had incurred at the Education Village site (the "Site"), and to restructure the process for the discharge of the Beauchamp Family Trust's responsibilities to reimburse the Successor Agency for future investigation and remediation costs at the Site. APPROVED BY: ney Pursuant to the Addendum, the Beauchamp Family Trust agrees to reimburse the Successor Agency $27,500 to settle and compromise all claims for payment of past environmental costs for the period between August 15, 2005 and April 2, 2013, and the Beauchamp Family Trust shall pay $5,000 as its 50% contribution to future environmental costs. The Addendum also defines the process to resolve any future disputes regarding environmental costs. 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: • Addendum to Settlement and Mutual Release of Claims • Proposed resolution ADDENDUM TO SETTLEMENT AND MUTUAL RELEASE OF CLAIMS This Is an Addendum ("Addendum") to the Settlement Agreement and Mutual Release of Claims dated December 22, 2005 ("Agreement") between The Community Development Commission of the City of National City ("CDC"), and the Beauchamp Family Trust ("Beauchamp"). The Agreement Is hereby supplemented and modified as follows. Whenever there is any conflict between the Addendum and the Agreement, the provisions of the Addendum shall govern. Terms used In this Addendum and not otherwise defined shall have the same meanings given to them in the Agreement. On February 1, 2012, the CDC became the Successor Agency to the Community Development Commission as the National City Redevelopment Agency ("Agency"). The Parties have again come to a dispute about their relative rights and obligations under the Agreement, and having met and conferred and reached an agreement, now enter into this Addendum for the purpose of settling past claims for payment of environmental cleanup costs that the CDC/Agency had incurred at the Site and to restructure the process for the discharge of Beauchamp's responsibilities to reimburse the Agency for future Investigation and remediation costs at the Site. II. DEFINITIONS 5. "Past Environmental Costs" means Environmental Costs incurred by the CDC/Agency between August 15, 2005 and April 2, 2013 as a result of Contamination at the Site. 8. 'Future Environmental Costs" means Environmental Costs incurred by the Agency after April 2, 2013 due to the Contamination of the ground water with the dry-cleaner solvent PCE at the Site. 7. "Parties" means the Agency and Beauchamp. IV. TERMS OF SETTLEMENT AND RELEASE 1. CONSIDERATION a. Settlement for Past Environmental Costs. Beauchamp agrees to reimburse the Agency $27,500 to settle and compromise all Claims for payment of Past Environmental Costs for the period between August 15, 2005 and April 2, 2013. In, furtherance of this compromise and settlement, Beauchamp hereby agrees to pay the $27,500 to the Agency no later than March 1, 2014, which shall be paid on a monthly basis In the amount of $2,750,00 commencing June 1, 2013. In the event that Beauchamp does not submit timely payment to the Agency as provided herein, interest on the unpaid amount shall accrue at 12% per annum. Education Village Project Addendum to Beauchamp/City Settlement May 2013 1 b. Cooperation and Reimbursement for Future Environmental Costs. Beauchamp agreee upon execution of this Agreement to submit a payment of Five Thousand Dollars ($5,000) as its 50% contribution to Future Environmental Costs, currently estimated not to exceed the amount of Ten Thousand Dollars. It is hoped no further Future Environmental Coats will be incurred. In the event that the Agency is required to incur additional Future Environmental Costs above and beyond the $10,000 currently estimated, it agrees to consult with Beauchamp on all remaining environmental activities that DEH may require at the Site. Those activities required by DEH shall be contracted for by the Agency. Beauchamp shall reimburse the Agency for 50% of all Future anviron entral Costs Incurred by the Agency for the activities required to investigate and remediate the Contamination at the Site. The Agency will submit tenders to Beauchamp for reimbursement as the Future Environment!11 Cow are incurred. The tenders will Include supporting invoices documenting the costs incurred. The Agency will submit the tenders to; Beauchamp Family Trust, 327 West 1ithStreet, National City, California 91950. c. Disputes Renardina Envl(pnmentat Costs. Upon receipt of the tender described in Paragraph iV.1.b., Beauchamp will notify the Agency of any disputes regarding any of the claimed Future Environmental Costs in wilting to Richard Opper, Esq., Opper & Varco LLP, 225 Broadway, Suite 1900, San Diego CA 92101, facsimile f# 619-231-5853, within fifteen (15) days of receipt of the tender. The Parties agree to first work together to try to informally resolve any disputes. If such informal negotiations fail, the Parties shall then engage in mediation of the dispute, if mediation does not resolve the dispute, the Parties shall enter into binding arbitration of the dispute. The mediator and arbitrator will be mutually selected by the Parties, Beauchamp will reimburse the Agency within thirty (30) days of successful mediation or receipt of the arbitration award. Checks shall be made payable to The City of National City. Checks will be sent c/o Mr. Bradley Rauiston, Successor Agency to the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, CA 91950. Late payments will accrue interest at a rate of 6% per annum. The Parties further agree that the time within which Agency must make claims to seek the cost recovery contemplated by this Agreement (including enforcement) of this Agreement is toiled from the execution of this Agreement, and that time -barred defenses by Beauchamp are waived until all Environmental Costs have been paid by Beauchamp to the Agency. If the Parties proceed to binding arbitration, the Parties preserve all rights and defenses, with the exception of Beauchamp's agreement that its status will be tolled such that in future arbitration Beauchamp will retain its status as a °responsible party" as a "current owner". 5. GENERAL PROVISIONS m. Notices. With the exception of those notices identified in Paragraphs IV.1.b. and IV.1.c. above, all notices required or permitted under this Agreement shall be In Education Village Project Addendum to Beauchamp/City Settlement May 2013 2 writing (either by mail or facsimile), and addressed to the Parties for whom It is intended at the address set forth herein or such other address designated from time to time In writing to all other Parties: To the Agency: c/o The City of National City Leslie Deese, City Manager 1243 National City Boulevard National City, CA 91950 With a copy to: c/o Opper & Varco LLP Richard Opper, Esq. 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 231-5858 Facsimile: (619) 231-5853 To Beauchamp: The Beauchamp Family Trust 327 West 11th St. National City, CA 91950 Telephone: (619) 477-7700 Facsimile: (619) 477-8773 With a copy to: Sandra J. Brower, Esq. Sullivan Hill Lewin Rez & Engel, APLC 550 West C Street, 15th Floor San Diego, CA 92101 Telephone: (619) 233-4100 Facsimile: (619) 231-4372 Any notice so delivered or served shall be deemed made upon receipt by the Parties served or to whom notice is so given. Notice may also be made by electronic mail transmission or by facsimile transmission and deemed made as of the date and time of that transmission, if said notice is followed up by duplicate written notice sent by certlfied United States mall, return receipt requested, postage prepaid, prior to the close of the next business day. Education Village Project Addendum to Beauchamp/City settlement May 2013 3 IN WITNESS WHEREOF, the Parties enter into this Addendum which shall become effective and fully -enforceable in all respects as of the latest date that this Addendum is fully - executed by all the Parties. Dated: r" 2-.? — f I SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY By: Name: Ron Morrison Title: Chairman Dated: -J -,7-7- /3 THE BEAUCHAMP FAMILY TRUST By: G ; � o../..ee c2 Name: Alton B. Beauchamp stee on behalf of the Beauchamp Family Trust APPROVED AS TO FORM: RICHARD G. OPPE OPPER & VARCO LLP SPECIAL COUNSEL Education Village Project Addendum to Beauchamp/City Settlement May 2013 4 SANDRA J. BROW SULLIVAN HILL WIN REZ & ENGEL, APLC ATTORNEY OR THE BEAUCHAMP FAMILY TRUST RESOLUTION NO. 2013 — RESOLUTION OF THE BOARD OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY RATIFYING THE ADDENDUM TO THE SETTLEMENT AND MUTUAL RELEASE OF ALL CLAIMS DATED DECEMBER 22, 2005 BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE BEAUCHAMP FAMILY TRUST WHEREAS, the Community Development Commission of the City of National City and the Beauchamp Family Trust had previously entered into a Settlement Agreement and Mutual Release of Claims dated December 22, 2005; and WHEREAS, the Parties had come again to a dispute about their relative rights and obligations under the Agreement regarding the appropriate amounts due for environmental cleanup costs; and WHEREAS, this Addendum is a result of a meet and confer between the parties for the purpose of settling past claims for payment of environmental cleanup costs that the former Community Development Commission acting as the Redevelopment Agency (now the Successor Agency to the Community Development Commission as the National City Redevelopment Agency) had incurred and to restructure the process for the discharge of the Beauchamp Family Trust's responsibilities to reimburse the Successor Agency for future investigation and remediation costs. NOW, THEREFORE, BE IT RESOLVED that the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby ratifies the Addendum to Settlement and Mutual Release of Claims, fully -executed on May 29, 2013. PASSED and ADOPTED this 18th day of June, 2013 Ron Morrison, Chairman ATTEST: Michael R. Dalla, City Clerk as Secretary to the Successor Agency APPROVED AS TO FORM: Claudia Gacitua Silva Successor Agency Counsel OPPER VARCO LLP THE ENVIRONMENTAL LAW GROUP DATE: May 24, 2013 �yvur owpx Tur mats TRANSMITTAL MEMO TO: Ms. Denise Davis Executive Secretary National City Community Development Commission 1243 National City Blvd. National City, CA 91950 RE: Legal Services 225 Broadway, Suite 1900 San Diego, CA 92101 Phone: (619) 231-5858 Fax: (619) 231-5853 www.envirolawyer.com ENCLOSURES: Two signed originals of the following: 1. Addendum to Settlement and Mutual Release of Claims between the City of National City and the Beauchamp Family Trust. Very truly yours, ne Kallen Lt a1 Secretary to Richard G. Opper, Esq. RECEIVED MAY 2 8 2013 immunity Development Commissia CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk May 30, 2013 Richard G. Opper Opper & Varco LLP 225 Broadway, Suite 1900 San Diego, CA 92101 Dear Mr. Opper, We are enclosing for your records a fully executed original copy of the Addendum to Settlement and Mutual Release of Claims between the Community Development Commission of the City of National City and the Beauchamp Family Trust. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission