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HomeMy WebLinkAbout2014 CON CV Ventures - Duck Pond Monitoring Wells - Settlement Release of All ClaimsSETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS [Agreement] is made as of May 50, 2014, by and between CV VENTURES, LLC, a limited liability corporation, [CV Ventures], and CITY OF NATIONAL CITY [City], [CV Ventures and City referred to as "The Parties"], who agree as follows: RECITALS A. The Parties now wish to settle and dismiss all disputes and claims between them relating to the gas monitoring of certain wells within the City's monitoring responsibilities. 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 June 30, 2011, December 21, 2011 and March 28, 2012, CV Ventures wrote the City seeking reimbursement of CV Ventures' costs related to monitoring certain wells that were within the City's monitoring responsibilities. These monitoring wells are part of and related to the former Duck Pond Landfill which is a closed disposal site ("Duck Pond") with oversight by the County of San Diego Solid Waste Local Enforcement Agency. C. Both Parties have monitoring wells related to the Duck Pond. CV Ventures sought approximately $76,498 in reimbursement for monitoring costs from December 2001 through June 30, 2012 for the monitoring and reporting of the wells within the City's property. The City disputed it owed CV Ventures any reimbursement. D. The Parties have entered into a Memorandum of Understanding dated May 3, 2013, regarding the monitoring of the City's wells related to the Duck Pond. That Memorandum of Understanding addresses costs and reimbursement commencing May 3, 2013. E. The Parties have a dispute as to whether City owes CV Ventures compensation for monitoring of the City's wells which occurred prior to May 3, 2013, related to the Duck Pond Landfill. F. The Parties now seek to resolve all outstanding issues between them. 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, Settlement Agreement between CV Ventures LLC and National City 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. AGREEMENT NOW, THEREFORE, the Parties agree as follows: 1. SETTLEMENT: 1.1. Compensation: City shall pay CV Ventures the amount of nine -thousand four -hundred thirty-nine dollars and ninety-three cents ($9,439.93) as complete and total compensation for the amount CV Ventures claims it is owed by the City for monitoring costs incurred prior to May 3, 2013. 1.2. Future Compensation: CV Ventures and City entered into a separate Memorandum of Understanding, as described in Recital D, regarding ongoing monitoring and reporting. CV Ventures reserves the right to receive compensation from the City from May 3, 2013 forward for the monitoring, reporting and maintenance pursuant to the aforementioned Memorandum of Understanding. 2. RELEASE OF CLAIMS. 2.1 Release. For and in consideration of the terms described above, CV Ventures on behalf of itself, its heirs, executors, administrators, and assigns hereby fully releases and discharges City and each of 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 prior monitoring costs which are the subject of dispute, or the underlying facts thereof. 2.2 Waiver of Civil Code section 1542. It is the intention of CV Ventures that the foregoing release shall be 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 CV Ventures expressly waives any and all rights and benefits conferred upon it 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 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." -2- Settlement Agreement between CV Ventures LLC and National City 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. CV Ventures 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 it may incur. 3. MISCELLANEOUS. 3.l 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 party'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 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 be interpreted -3- Settlement Agreement between CV Ventures LLC and National City 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, except for the Memorandum of Understanding referenced in Recital D. 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 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. [REMAINDER OF PAGE PURPOSELY BLANK] -4- Settlement Agreement between CV Ventures LLC and National City 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. CV Ventures, LLC a Nevada limited liability company By: Rhode Island Acquisition No. 1 LLC Its Sole Member By: SD Commercial, LLC Its Managing By: David Wick Its President Dated: (4, /Q//q APPROVED AS TO FORM: Dated: it)I1M CITY OF NATIONAL CITY Leslie Deese, City Manager Cl -5- va, City Attorney Settlement Agreement between CV Ventures LLC and National City CV VENTURES, LLC, May 30, 2014 Claudia G. Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950 Via U.S. Priority Mail Re: SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Ms. Silva: Per your e-mail on Thursday, May 29, 2014, please find enclosed three (3) duplicate originals of the above referenced agreement executed by CV Ventures, LLC. Please execute all three originals and return one fully executed original to my attention at the address listed below. If you have any questions, please contact me directly at (858) 623-9000 extension 700 or via e-mail at dwick(i natent.com. Best regards, CV VENTURES, LLC SD Commercial, LLC Management Company David Wick President Enclosures 5440 Morehouse Drive, Suite 4000, San Diego, CA 92121 (858) 623-9000 Fax (858) 623-9009 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 June 10, 2014 Mr. David Wick CV Ventures, LLC 5440 Morehouse Drive, Suite 4000 San Diego, CA 92121 Dear Mr. Wick, On May 30th, 2014, a Settlement Agreement and Release of All Claims was entered between the City of National City and CV Ventures, LLC. We are enclosing for your records a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosure