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HomeMy WebLinkAbout2015 CON Titan Marine - Settlement Agreement Release and WaiverSETTLEMENT AGREEMENT, RELEASE AND WAIVER THIS SETTLEMENT AGREEMENT, RELEASE AND WAIVER ("Settlement Agreement") is made this l8t lay of August 2015, by the City of National City, a municipal corporation (the "City"), Titan Marine, a California Corporation, also known as Titan Marine (collectively referred to as "Titan"). City and Titan may be collectively referred to herein as the "Parties." RECITALS A. On July 18, 2014, the City filed a complaint for damages against Titan Marine, San Diego Superior Court Case No. 37-2014-00024050-CU-PO-CTL, alleging damage to the City's property. Titan Marine, a California Corporation cross -complained against the City alleging inverse condemnation and nuisance. This complaint and cross -complaint are referred to as the Litigation. B. 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 upon the terms and conditions set forth below. AGREEMENT NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration the parties hereby agree as follows: 1. Settlement. (a) Titan shall pay City $6,000 by August 20, 2015. The check shall be payable to City of National City, and delivered to the City of National City, 1243 National City Boulevard, National City, CA 91950, attn.: City Attorney. (b) Waiver of Fees and Costs. The Parties shall bear their own attorneys' fees incurred in connection with this Litigation and waive any and all right to attorneys' fees and costs arising out of this Litigation. (c) Dismissal of the Litigation. Upon the satisfaction of the terms and conditions herein, 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. Upon execution of this settlement agreement by Titan, the City shall cause the Litigation to be placed upon the Settlement/Dismissal calendar. 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 upon delivery of the settlement check to the City. Page 1 of 6 (b) Mutual Release and Discharge of Claims. 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. 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, however. (c) Waiver of California Civil Code Section 1542. (i) 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. (ii) The Parties understand that California Civil Code Section 1542 provides as follows: 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 Page 2 of 6 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 represent to the other that (i) each of them fully understands and accepts the terms of this Settlement Agreement; (ii) that 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) that 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) that none of them has any questions with regard to the legal import of any term, word, phrase, or portion 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 City. By entering into this Settlement Agreement, the City and the persons signing below on behalf of the City, each represents to Titan that: (1) this Settlement Agreement has been duly approved by all necessary member actions and no further or additional approvals are needed; (2) the persons signing below on behalf of the City are authorized to execute this Settlement Agreement on behalf of the City; and (3) this Settlement Agreement is binding on the City. (ii) By Titan. By entering into this Settlement Agreement, Titan, and the persons signing below on behalf of each entity, each represents to the City 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 Page 3 of 6 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. (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. Page 4 of 6 (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. (I) 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 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. CITY OF NATIONAL CITY: City of National City, a Municipal Corporation By: �",e)`c.-("1t---) Leslie Deese, City Manager TITAN MARINE, a California Corporation, also known as Titan Marine: Titan Marine, a California Corporation By: 1 - )1ct:J,e.' Print Name: \AI ;Ili Ain fh M J-4-'9 , Its: Cli1&irrvieh ott C Eo I [SIGNATURES CONTINUED ON NEXT PAGE] Page 5 of 6 Approved as to Form Dated: August(, 2015 Dated: August, 2015 THE HELLENKAMP LAW FIRM By: Terry J. Hellenk p, Esq. Timothy V. Mahar, Esq. Attorneys for Defendant and Cross -Complainant Titan Marine, a California Corporation also known as Titan Marine CLAUDIA G . , VA, C TY ATTORNEY By: Cl. T is G. Silva, Ci y Attorney Jennifer Knight, De .uty City Attorney Attorneys for Plain iff and Cross -Defendant, City of National City Page 6 of 6 Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil TO: City Cler FROM: Ginny Mild; Lbgal Assistant SUBJECT: City of National City v. Titan Marine Settlement Agreement, Release and Waiver CALIFORNIA NATIONAL Crry �e e� �z Office of the City Attorney MEMORANDUM City Attorney Claudia Gacitua Silva Deputy City Attorney Jennifer Knight DATE: September 8, 2015 Attached for your files, please find an original, fully -executed Settlement Agreement, Release and Waiver dated August 18, 2015 between the City of National City and Titan Marine in the above -referenced matter. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 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 TITAN MARINE Settlement Agreement, Release and Waiver Ginny Miller (City Attorney) Forwarded Copy of Agreement to Titan Marine