HomeMy WebLinkAboutContract 1557 OR / b* I NAL
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is entered into
as of March t \ , 2013 (the "Effective Date"), by and among the County of Riverside, a political
subdivision of the State of California (referred to herein as "County"), and City of Cathedral City
(referred to herein as "City"). County and City are sometimes referred to individually as "Party"
and collectively as "Parties."
RECITALS
A. On December 26, 2012, City presented a governmental claim ("Claim"),
requesting compensation for Property Tax Administrative Fees (PTAF) withheld by County, a
copy of which is attached hereto as "Exhibit A."
B. In December 2012, the Riverside County Auditor-Controller made allocations
consistent with the California Supreme Court's decision in the City of Alhambra v. County of Los
Angeles case.
C. County disputes the amount that City claims that it is owed by the County with
respect to the PTAF allocations.
D. County and City now desire to fully and finally settle and resolve any and all
rights, claims, counterclaims, disputes, causes of action, demands for just compensation, and
alleged claims which currently exist, or may exist in the future, with respect to the PTAF
allocations.
E. In consideration of the settlement of this matter and a mutual release of all claims,
County and City have agreed upon terms and conditions for settlement as more fully set forth
herein.
-1-
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated into
this Agreement, and of the mutual promises set forth herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, County and City
hereby agree as follows:
1. Payment. The County shall cause the sum of $174,331.00 to be paid to City in
three (3) equal annual installments, for PTAF allocations from Fiscal Year 2009-2010, Fiscal
Year 2010-2011, and Fiscal Year 2011-2012, commencing April 8, 2013.
2. No Admission of Liability. The parties understand, acknowledge and agree that
this Agreement represents a compromise of disputed claims, facts and allegations and shall not
be treated by any party thereto, as an admission of liability or fault of any other party hereto for
any purpose whatsoever or as an admission as to claims for any purpose whatsoever or as an
admission as to claims of interest in any manner whatsoever.
3. Each Party to Bear Own Attorneys' Fees and Costs. The parties expressly
understand, acknowledge and agree to bear their own costs and expenses to date, including
attorneys' fees, incurred in prosecuting and/or defending this matter, in resolving their disputes
herein and in preparing and negotiating this Agreement.
4. Parties Jointly Drafted the Agreement. The parties understand, acknowledge and
agree that each of the parties hereto has contributed to the drafting of this Agreement, and no
provision hereof shall be construed against any party causing this Agreement to be drafted.
5. Mutual Release. The Parties hereby release, and fully and finally and forever
discharge each other, and each of their respective predecessors, successors, heirs, executors,
administrators, assigns, agents, directors, officers, partners, employees, contractors,
-2-
representatives, lawyers, and all persons acting by, through, under, or in concert with them or
any of them of and from any and all manner of actions or causes of action, suits, debts, liens,
liabilities, claims, demands, and damages of any nature whatsoever, known or unknown, fixed or
contingent, existing or as the law may change, including, without limitation, to claims which any
Party now has against the other Party as alleged in or arising out of, or which could have been
raised in, based upon, or related to the Claim, whether provided by law at the time of the
execution of this Agreement or which may in the future be provided by law and retroactively
applied to this matter.
6. Waiver of Civil Code Section 1542. The Parties hereby acknowledge that they
have been advised by their attorneys concerning, and are familiar with, the provisions of
California Civil Code section 1542, which provides 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 the intention of the Parties that the releases entered into as part of this Agreement
shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorney's
fees, damages, losses, claims, liabilities, and demands of any character, nature and kind, known
or unknown, suspected or unsuspected, to be so barred; in furtherance of which intention the
Parties expressly waive any and all right and benefit conferred upon them by the provisions of
Section 1542 of the California Civil Code, except this waiver shall not act to waive any
representations, warranties, indemnities, actions, causes of action, obligations, costs, expenses,
attorney's fees, damages, losses, claims, liabilities, and demands of any character as a result of a
breach of this Agreement. The Parties hereby acknowledge that the foregoing waiver of the
provisions of Section 1542 of the California Civil Code was bargained for separately. The
-3-
Parties expressly agree that the release provisions herein contained shall be given full force and
effect in accordance with each and all of their express terms and provisions, including but not
limited to those terms and provisions relating to unknown or unsuspected claims, demands, and
causes of action herein above specified. The Parties assume the risk of the foregoing and of the
subsequent discovery or understanding of any matter, fact, or law which if now known or
understood would in any respect have affected this Agreement.
Each Party acknowledges that it may have sustained damage, loss, costs or expenses
which are presently unknown and unsuspected, and such damages, loss, costs or expenses which
may have been sustained may give rise to additional damages, loss, costs or expenses in the
future. Each Party also acknowledges that changes in law may occur in the future which may
apply retroactively and may allow such Party to be entitled to further claims for damages, loss,
costs or expenses which are presently unknown and unsuspected. Nevertheless, each Party
hereby acknowledge that this Agreement has been negotiated and agreed upon in light of that
situation, and hereby expressly waive any and all rights which it may have under California Civil
Code Section 1542, or under any statute or common law or equitable principle of similar effect.
7. Attorneys' Fees. In any action to enforce the terms of this Agreement, the
Prevailing Party shall be entitled to recover from the nonprevailing Party all reasonable
attorneys' fees, expert fees, and court costs.
8. Entire Agreement. This Agreement and the documents referenced herein
contain the entire agreement between the Parties. This Agreement shall not be modified in any
manner except by an instrument in writing executed by the Parties.
9. Severability. If any term or provision of this Agreement shall, to any extent, be
held invalid or unenforceable, the remainder of this Agreement shall not be affected.
-4-
10. Waivers. A waiver of a breach or covenant or other provision in this Agreement
shall not be deemed a waiver of any other breach or covenant or provision in this Agreement;
and no waiver shall be valid unless in writing and executed by the waiving party. An extension
of time for performance of any obligation or act shall not be deemed an extension of the time for
performance of any other obligation or act.
11. Construction. The Section headings and captions of this Agreement are, and the
arrangement of this instrument is, for the sole convenience of the Parties. The Section headings,
captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify
the terms and provisions of this Agreement. The singular form shall include plural, and vice
versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but
rather as if all Parties have prepared it. Unless otherwise indicated, all references to Sections are
to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated
in it by this reference.
12. Merger. All of the terms, provisions, representations, warranties, covenants, and
indemnity obligations of the Parties under this Agreement shall survive the execution and
delivery of this Agreement.
13. Counterparts. This Agreement may be executed in one or more counterparts.
Each counterpart shall be deemed an original and all, taken together, shall constitute one and the
same instrument.
14. No Obligations to Third Parties. This Agreement is not intended to create any
third-party beneficiaries, and the execution and delivery of this Agreement shall not be deemed
to confer any rights upon, nor obligate any of the Parties, to any person or entity other than the
Parties. Additionally, no third party may enforce the terms of this Agreement.
-5-
15. Successors. This Agreement shall inure to the benefit of and shall be binding
upon the Parties and their respective heirs, successors, and assigns.
16. Governing Law and Venue. This Agreement and any dispute arising hereunder
shall be governed by California law. Each Party consents to the exclusive jurisdiction of the
state and federal courts sitting in the County of Riverside, State of California, in any action on a
claim arising out of, under, or in connection with this Agreement or the transactions
contemplated by this Agreement. EACH PARTY HEREBY ACKNOWLEDGES THAT THE
FOREGOING VENUE PROVISIONS HAVE BEEN CHOSEN AS THE APPROPRIATE AND
CONVENIENT FORUM FOR ANY SUCH ACTION AND WAIVES ANY RIGHT TO
OBJECT TO JURISDICTION ON THE BASIS OF LACK OF PERSONAL JURISDICTION
OR FORUM NON CONVENIENS.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURES FOLLOW]
-6-
IN WITNESS WHEREOF, the County and City have executed this Agreement to be effective on
and as of the Effective Date set forth in the preamble of this Agreement.
COUNTY OF RIVERSIDE
Date: 3/7-C 5 By: __CA11,. (4--
County of Riverside
CITY OF CATHEDRAL CITY,
a municipal corporation
Date: 3 '
By:
City Mana_ r
ttest:
P.t Hammers
City Clerk
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURES FOLLOW]
-7-
APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL
Date: = _ ) I i._') By: AC:1( \
L. ALEXANDRA ?� G
Deputy County Cou l
Attorneys for County of Riverside
APPROVED AS TO FORM: GREEN, DE BORTNOWSKY & QUINTANILLA, LLP
City Attorney
Date: 3-1 H 1 3
i
By:
Charles R. Green
LAF ay
G\Property\PWALLS\PTAF\AGMTS\PTAF_SetlAgmt-CathedralCity doc
-8-
EXHIBIT A
CLAIM
[TO BE ATTACHED]
Exhibit A
-l-
COUNTY OF RIVERSIDE CLAIM FOR DAMAGES TO PERSON OR PROPERTY
(-4 C A7 INSTRUCTIONS: RECFEI EED ONLY
r-°`Ns) , 1. Read claim thoroughly.
# 601 to 2 Fill out claim as indicated;attach additional information if necessary. rr .A r
' t¢yi)s 3 This office needs the original completed claim form and clear readable copies
T . of attachments(if any)if originals are not available. DEC 2 6 2012
o 4 This claim form must be signed.
0.89X OFTHB 80ARD OF< •MLAMS
DELIVER OR U.S.MAIL TO: CLERK OF THE BOARD OF SUPERVISORS OOIJN1Y0P RtYtiRStDE,S7 ,•"CALIFORNIA
ATTN: CLAIMS DIVISION
P.O. BOX 1828, 4080 LEMON ST. 1ST FL.
RIVERSIDE, CA. 92502-1828 (951) 955-1080
TIME STAMP HERE
1 FULL NAME OF CLAIMANT 8 WHY DO YOU CLAIM THE COUNTY IS RESPONSIBLE?
CITY OF CATHEDRAL CITY CA SUPREME COURT RULING IN CITY OF ALHAMBRA ET AL V.COUNTY Of LOS ANGELES,
CA SUPREME COURT CASE NO.5185467 STATES THAT COLLECTION OF DISPUTED
PROPERTY TAX ADMINISTRATION FEE IS NOT AUTHORIZED
2.MAILING ADDRESS (STREET/P 0 BOX)
68.700 AVENIDA LALO GUERRERO
CITY STATE ZIP CODE
CATHEDRAL CITY CALIFORNIA 82234
TELEPHONE OF CITY MANAGER 9 NAMES OF ANY COUNTY EMPLOYEES(AND THEIR DEPARTMENTS)INVOLVED IN
(780 )770-0372 INJURY OR DAMAGE(IF APPLICABLE)
3. WHEN DID DAMAGE OR INJURY OCCUR(PLEASE Be EXACT) NAME DEPARTMENT
FISCAL YEAR 2008/07,2007/08,2008/09,2009/10,2010/11 AND 2011/12
4 WHERE DID DAMAGE OR INJURY l?CCUR? NAME DEPARTMENT
RIVERSIDE COUNTY
STREET CITY STATE ZIP CODE 10 WITNESSESS TO DAMAGE OR INJURY LIST ALL PERSONS AND ADDRESSES OF
4080 LEMON STREET RIVERSIDE CALIFORNIA 92601 PERSONS KNOWN TO HAVE INFORMATION'
5 DESCRIBE IN DETAIL HOW DAMAGE OR INJURY OCCURRED NAME PHONE
ON NOVEMBER 19,2012 CALIFORNIA SUPREME COURT RULING IN CITY OF ALHAMBRA.ET ADDRESS
AL V.COUNTY OF LOS ANGELES.ET Ay..REGARDING THE COUNTY'S CALCULATION OF
THE FEE FOR ADMINISTERING PROPERTY TAXES,STATES THAT THE COLLECTION OF
DISPUTED PROPERTY TAX ADMINISTRATION FEE IS NOT AUTHORIZED BY REVENUE 8
TAXATION CODE SECTION 97.75. ERAF MONIES DIVERTED BY THE TRIPLE FLIP AND VLF tca>
SWAP REMAIN EXEMPT FROM THE FEE CALCULATION. RIVERSIDE COUNTY UTILIZES THE r.7
SAME METHOD OF CALCULATING PROPERTYTAX ADMINISTRATION FEES AS LOS ANGELES
COUNTY,WHICH THE CALIFORNIA SUPREME COURT RULED VIOLATES THE STATUTORY �T
SCHEME. THE CITY OF CATHEDRAL CITY WAS OVERCHARGED. r„5
NAME PHONE N
ADDRESS '17
NAME PHONE t'•7 ^,
ADDRESS LJ1
1 t LIST DAMAGES INCURRED TO DATE(attach(Dotes of receipts OF repair estimates)
THE AMOUNT OF THE CLAIM IS PRESENTLY UNKNOWN TO THE CITY,BUT IS BELIEVED TO
EXCEED$360,000 FOR FISCAL YEAR 2006-08,2008-07,2007-08,2008-09,2009-10,2010-11
AND 2011-2012
6 WERE POLICE OR PARAMEDICS CALLED? 0 YES XX NO IN ADDITION TO THE PRINCIPAL AMOUNT OF THE CLAIM,THE CITY CLAIMS INTEREST IN THE
APPROXIMATE AMOUNT OF$93,847.31 AT THE RATE OF 7%FROM THE DATE EACH AMOUNT
WAS WITHHELD (See Attachment No.I hereto)
7.IF PHYSICIAN/HOSPITAL WAS VISITED DUE TO INJURY,INCLUDE DATE OF FIRST VISIT
AND HOSPITAL'S NAME,ADDRESS AND PHONE NUMBER:
DATE OF FIRST VISIT PHYSICIAN'S/HOSPITAL'S NAME
PHYSICIAN'S/HOSPITAL'S ADDRESS PHONE
TOTAL DAMAGES TO DATE TOTAL DUE
APPROXIMATELY$348,348.00 + $93,847.31 INTEREST $442,194.90
THIS CLAIM MUST BE SIGNED TO BE VALID. NOTE: PRESENTA HUN UP-A FALSE CLAIM IS A FELONY(PENAL CODE SECTION 72.)
WARNING:
CLAMS FOR DEATH,INJURY TO PERSON OR TO PERSONAL PROPERTY MUST BE FILED NOT LATER THAN SIX(B)MONTHS AFTER THE OCCURRENCE (GOVERNMENT CODE SECTION II 121
ALL OTHER CLAIMS FOR DAMAGES MUST BE FILED NOT LATER THAN ONE(I)YEAR AFTER THE OCCURRENCE (GOVERNMENT CODE SECTION
911 29
SUBJECT TO CERTAIN EXCEPTIONS YOU HAVE ONLY SIX II)MONTHS FROM TIE DATE OF THE WRITTEN NOTICE OF REJECTION OF YOUR CLAIM TO FILE A COURT ACTION (GOVERNMENT CODE SECTION 945 S)
IF WRITTEN NOTICE OF REJECTION OF YOUR CLAIM IS NO7 GIVEN.YOU NAVE TWO(2)YEARS FROM ACCRUAL OF THE CAUSE OF ACTION TO FILE A COURT ACTION(GOVERNMENT CODE BECTON 945 Op
12 CLAIMANT OR PERSON FILING HI HER BEHALF 13 PRINT OR TYPE NAME DATE •
CHARLES R. GREEN 12/21/2012
SIGNATURE RELATIONSHIP TO CLAIMANT/
ATTACHMENT NO. 1 TO CITY OF CATHEDRAL CITY CLAIM FOR REFUND OF PTAF Hci 1 1
Riverside County
SB 2557 Administrative Reimbursement Allocation
Overpayment Amounts Per Supreme Court Ruling 12/21/2012
Corrected
Amounts Overpaid by City of Cathedral City(Fund No.02-2225)
Overpayment Amounts& Interest(1)
2006-07 2007-08 2008-09 2009-10 2010-11 2011-12 Aggregate
Fiscal Year
49,635.07 49,635.07
2006-07 53,109.52 56,653.62 109,763.14
2007-08 56,827.19 60,619.37 67,727.79 185,174.36
2008-09 60,805.10 64,862.73 72,468.74 57,586.66 255,723.22
2009-10 65,061.45 69,403.12 77,541.55 61,617.73 53,489.90 327,113.75
2010-11 69,615.75 74,261.34 82,969.46 65,930.97 57,234.19 63,254.55 413,266.26
2011-12 74,488.86 79,459.63 88,777.32 70,546.13 61,240.59 67,682.37 442,194.90
2012-13
49,635.07 56,653.62 67,727.79 57,586.66 53,489.90 63,254.55 348,347.59
Overpayment 24,853.79 22,806.01 21,049.53 12,959.47 7,750.69 4,427.82 93,847.31
Interest 74,488.86 79,459.63 88,777.32 70,546.13 61,240.59 67,682.37 442,194.90
Total
(1) 582557 charges are deducted from City revenues in January of each fiscal year.
Interest has been calculated for each overcharged amount at 7%per year and compounded
annually from the January overpayment through the following January. Total