Loading...
HomeMy WebLinkAbout2015 CON (Settlement Agreement) Randy Myrseth and Herman Baca - Writ of Mandate ElectionSETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (this "Agreement") is entered into as of March 4, 2015 by and between Petitioners Randy Myrseth and Herman Baca (jointly referred to as Petitioners), on the one hand, and Respondent Mike Dalla, in his official capacity as City Clerk of the City of National City, Real Party in Interest City of National City, Real Party in Interest City Council of National City and Real Party in interest Claudia G. Silva, in her official capacity as City Attorney for the City of National City (jointly referred to as the "City"), on the other hand (collectively, Petitioners and City will be referred to as "Parties"), with regard to the following: RECITALS A. All of the Parties wish to settle all disputes and claims between them. The undersigned understand, acknowledge and agree that the execution of this Agreement is not to be construed as an admission of liability on the part of any Party to this Agreement. B. Petitioners filed a Complaint and Peremptory Writ of Mandate ("Complaint") to Compel Amendment or Deletion of Election Materials against the City in the Superior Court of California, County of San Diego, entitled Myrseth, et al. v. Dalla, et al., Case No. 37-2014- 00028380-CU-MC-CTL, on August 22, 2014 before the Honorable John S. Meyer, challenging the ballot language associated with Proposition D (the "Action"). Respondent Mike Dalla, the City Clerk, and Real Party in interest, Claudia G. Silva, City Attorney, were named solely in their official capacities, pursuant to Elections Code section 9295. C. After briefing by the Parties, and Petitioner's Ex Parte Application heard on August 26, 2014, the Action was decided at a hearing on the merits, before the Honorable John S. Meyer, on September 5, 2014. On September 9, 2014, the Court entered Judgment in the Action in favor of Petitioners, and Petitioners filed the Notice of Entry of Judgment on November 10, 2014. D. On September 23, 2014, Petitioners filed an Amended Memorandum of Costs. E. On October 14, 2014, the City filed a Motion to Strike/Tax Costs. F. On November 11, 2014, Petitioners filed a Motion for Attorneys' Fees pursuant to California Code of Civil Procedure section 1021.5. G. On January 29, 2015, the Parties entered into a Stipulation to continue the hearing on Petitioner's Motion for Attorneys' Fees until May 8, 2015. The Parties also agreed that the City's Motion to Strike/Tax Costs would be heard on May 8, 2015. in accordance with that Stipulation and agreement Petitioners and the City filed Amended Notices of each respective Motion with the Court. H. The Parties now seek to resolve all outstanding issues between Petitioner and the City, including the pending Memorandum of Costs, Motion to Strike/Tax Costs, and Motion for Attorneys' Fees based on California Code of Civil Procedure section 1021.5. The Parties engaged Page 1 of 6 Settlement Agreement in settlement negotiations with respect to the Attorneys' Fees and Costs sought by Petitioners and reached an agreement on March 4, 2015. The Parties now desire to memorialize their settlement, as set forth herein. DEFINITIONS As used in this Agreement, the following words and phrases have the meanings stated: Claims. "Claims" shall include all claims, rights, liens, demands, liabilities, controversies, actions, indebtedness, agreements, promises, and causes of action (asserted, unasserted, known, unknown, or contingent), damages, of whatsoever character, nature and kind, in law or in equity, which arise out of Petitioners' allegations in the Action, including Petitioners' claims for attorneys' fees and costs. Costs. "Costs" shall include all costs, losses, liabilities, damages, judgments, expenses, fees, attorneys' fees, and obligations related to the subject of the Action. AGREEMENT NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. The Settlement Payment. Within ten (10) business days of the date of execution of this Agreement, the City of National City shall pay to Petitioners the total sum of $47,548.77 in full satisfaction of Petitioners' Claims and Costs, including attorneys' fees and costs in the Action ("Settlement Payment"). The Settlement Payment shall be paid by check made payable to "Randy Myrseth, Herman Baca, and their attorney Edward M. Teyssier." 2. Withdrawal of Motions and Memorandum of Costs. The Judgment entered in this Action shall not be modified to include the Costs paid by and through the Settlement Payment, as set forth in Section 1. Petitioners shall authorize their counsel of record to prepare and execute a formal Withdrawal of the Motion for Attorneys' Fees and Memorandum of Costs, with prejudice. The City shall authorize its counsel of record to prepare and execute a formal Withdrawal of the Motion to Tax Costs, with prejudice. Such Withdrawals shall be filed with the Court within two (2) business days of written confirmation by Petitioners' counsel of record of receipt of the Settlement Payment. 3. Releases. 3.1 Release and Discharge by Petitioners. For and in consideration of the Settlement Payment set forth in Section 1 and for other good and valuable consideration, Petitioners hereby release, acquit and forever discharge the City, and its attorneys, agents, officials, officers, directors, representatives, employees, heirs, successors and assigns, jointly and severally, of and from any and all past, present or future claims, demands, obligations, controversies, actions, causes of action, 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 Claims, or the underlying facts thereof. Page 2 of 6 Settlement Agreement 3.2 Waiver of § 1542. It is the intention of the Parties hereto 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 each of the Parties expressly waives any and all rights and benefits conferred upon that party by the provision of Section 1542 of the California Civil Code, which are as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS 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. 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 arising from or related to the Claims, or the underlying facts thereof. Each of the Parties understands and acknowledges the significance and consequence of this specific waiver of Section 1542 and assumes full responsibility for any injuries, damages, losses or liability that he may incur. Notwithstanding the foregoing, neither Party intends to release the other Party from any Claim arising from facts or circumstances which the other Party has failed to disclose. 4. No Admission. It is understood and expressly agreed by the Parties that this is a compromise and settlement. Therefore, any payments made or actions taken in performance of this Agreement shall not be construed as an admission of guilt or liability by the City and such guilt or liability is expressly denied. 5. Attorneys' Fees and Costs. If any dispute arises pertaining to this Agreement, each Party shall bear his or its own attorneys' fees and costs. 6. No Presumption Against Drafting Party. This Agreement and the provisions contained herein shall not be construed or interpreted against any Party on the grounds that such Party or such Party's attorney drafted this Agreement or any of its provisions. 7. Agreement Freely Entered Into. In entering into this Agreement, the Parties each acknowledge and agree that they have had arnple time to consult with legal counsel of their choice or to seek such other advice as they deem desirable and therefore have entered into this Agreement of their own free will. Neither Party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. Each Party represents and agrees that this Agreement, and the releases contained in this Agreement, have been given voluntarily and free from duress or undue influence on the part of any person released by this Agreement, or by any third party. Page 3 of 6 Settlement Agreement 8. No Prior Transfer. Each Party represents and warrants to the other that no third person or entity has any interest in the Claims, other than as set forth in this Agreement, and that none of the Claims, nor any interest therein, has been sold, assigned, conveyed or otherwise transferred. 9. General Provisions. 9.1 Complete Agreement; Modifications. This Agreement and written agreements, if any, entered into concurrently herewith (i) constitute the parties' entire agreement, including all terms, conditions, definitions, warranties, representations, and covenants, with respect to the subject matter hereof, (ii) merge all prior discussions and negotiations between or among any or all of them as to the subject matter hereof, and (iii) supersede and replace all terms, conditions, definitions, warranties, representations, covenants, agreements, promises and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement may not be amended, altered or modified except by a writing signed by the party to be bound. With regard to such amendments, alterations, or modifications, telecopied signatures shall be effective as original signatures. Any amendment, alteration, or modification requiring the signature of more than one party may be signed in counterparts. 9.2 Further Actions and Communication. Each Party agrees to perform any further acts and execute and deliver any further documents reasonably necessary to carry out the transactions contemplated by this Agreement. 9.3 Severability. If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (as such intent is manifested by all provisions of the Agreement, including such invalid, void, or otherwise unenforceable portion). 9.4 Headings. The headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, or extend or interpret the scope of this Agreement or of any particular provision hereof. 9.5 Gender, Number, and Tense. Throughout this Agreement, unless the context otherwise requires: (i) the masculine, feminine, and neuter genders each includes the other; (ii) the singular includes the plural, and the plural includes the singular; and (iii) the past tense includes the present, and the present tense includes the past. 9.6 Binding Effect Upon Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties, their respective predecessors, successors and assigns, heirs, employees, parent or related entities, subsidiaries, partners, members, affiliates, agents, attorneys, and representatives. 9.7 Assignment. No Party may assign its rights under this Agreement without the prior written consent of the other Parties hereto. Page 4 of 6 Settlement Agreement 9.8 Extension Not a Waiver. No delay or omission in the exercise of any power, remedy, or right herein provided or otherwise available to any party shall impair or affect the right of such party thereafter to exercise the same. Any extension of time or other indulgence granted to a party hereunder shall not otherwise alter or affect any power, remedy or right of any other party, or the obligations of the party to whom such extension or indulgence is granted except as specifically waived. 9.9 Time of Essence. Time is of the essence of each and every term, condition, obligation and provision hereof. 9.10 No Third Party Beneficiaries. This Agreement and each and every provision hereof is for the exclusive benefit of the Parties hereto and not for the benefit of any third party. 9.1 1 References. A reference to a particular Section of this Agreement shall be deemed to include references to all subordinate Sections, if any. 9.12 Counterparts. This Agreement may be signed in multiple counterparts with the same force and effect as if all original signatures appeared on one copy; and in the event this Agreement is signed in counterparts, each counterpart shall be deemed an original and all of the counterparts shall be deemed to be one agreement. Photocopies, facsimile and/or scanned copies of original signature pages shall be deemed to have the same force and effect as an original. 9.13 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. 9.14 Choice of Law and Forum. 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. 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. 9.15 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. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates indicated. Signatures to follow on Page 6. Page 5 of 6 Settlement Agreement Dated: March _, 2015 Dated: March , 2015 Randy Myrseth Herman Baca Dated: March ,2015 City of National City Approved as to form: Dated: March Its: Mayor LOUNSBERY FERGUSON—FAL [O iA & PEAK, L'[.,P , 2015 By: Darn"sP ough l 7—Attorneys for Respondent Mike Dalla, as City Clerk of — the City of National City and Real Parties -In -Interest City of National City, City Council of the City of National City and Claudia G. Silva, as City Attorney for the City of National City LAW OFFICES OF EDWARD M. TEYSSIER. Dated: March ,2015 By: Edward Teyssier Attorneys for Petitioners Randy Myrseth and Herman Baca Page 6 of 6 Settlement Agreement Dated: March / 7/, 2015 Dated: March 450 , 2015 Randy Myseth Herman Baca Dated: March , 2015 City of National City Approved as to form: a37Tir- By: Ron Morrison Its: Mayor LOUNSBERY FERGUSON ALTONA & PEAK, LLP Dated: March , 2015 By: Dated: March 23 , 2015 James P. Lough Attorneys for Respondent Mike Dalla, as City Clerk of the City of National City and Real Parties -In -Interest City of National City, City Council of the City of National City and Claudia G. Silva, as City Attorney for the City of National City LAW OFFICES OF EDWARD M. TEYSSIER. B Edward Teyssier Attorneys for Petitioners Randy Myrseth and Herman Baca Page 6 of 6 Settlement Agreement Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil N Office of the City Attorney MEMORANDUM TO: City Clerk FROM: Ginny Miller, Legal Assis SUBJECT: Settlement Agreement and utual Release of All Claims City Attorney Claudia Gacitua Silva Senior Assistant City Attorney Elisa Cusato Deputy City Attorney Jennifer Knight DATE: March 26, 2015 Attached please find an original, fully -executed Settlement Agreement and Mutual Release of All Claims between the City of National City, Randy Myrseth, and Herman Baca in the matter of Myrseth v. Dalla. An original fully -executed copy has been provided to attorney Edward Teyssier. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327