Loading...
HomeMy WebLinkAbout2015-159 1 RESOLUTION NO. 2015-159 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A RELEASE AND 4 SETTLEMENT AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR 5 PROPERTY TAX ADMINISTRATION AND WASTE DISPOSAL FEES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The City Manager is hereby authorized to execute a Release and 9 10 Settlement Agreement with the County of San Bernardino for Property Tax and Waste Disposal 11 Fees, attached hereto as Exhibit"A" and incorporated herein. 12 SECTION 2. The authorization granted above shall be null and void if the agreement is 13 not executed by all parties and returned to the Office of the City Clerk within ninety (90) days. 14 /// 15 /// 16 17 18 /// 19 20 21 22 23 /// 24 25 26 27 28 /// 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A RELEASE AND 2 SETTLEMENT AGREEMENT WITH THE COUNTY OF SAN BERNARDINO FOR 3 PROPERTY TAX ADMINISTRATION AND WASTE DISPOSAL FEES. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 6 3rd day of August, 2015, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 9 MARQUEZ X 10 BARRIOS X 11 VALDIVIA x- 12 SHORETT x- 13 14 NICKEL X 15 JOHNSON X 16 MULVIHILL X 17 18 Georg ZH�anna, Cv" 7�C=erk 19 The foregoing Resolution is hereby approved this day of August, 20 2 0 21 �`�v 22 R. Carey Da 's, Mayor City of San Bernardino 23 Approved as to form: Gary D. Saenz, City Attorney 24 25 By: \ 26 27 28 2 2015-159 PROPERTY TAX ADMINISTRATION FEE AND SOLID WASTE DISPOSAL FEES RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made by and between the County of San Bernardino ("County") and the City of San Bernardino ("City"). This Agreement shall be effective at the time that the last party to this Agreement executes same and provides proof of that signing to the parties to this Agreement (the "Effective Date"). I. RECITALS A. A dispute arose between the County and the City regarding the amount of property tax administration fees ("PTAF") charged to cities by the County and County officers, beginning in fiscal year 2006-07, pursuant to various provisions of the Revenue and Taxation Code. The City contended that the County charged more for PTAF than its statutory mandate allows, whereas the County contended that it charged PTAF within its statutory authority. B. The same dispute arose between the County and other cities located in the County, and between other California counties and many cities located within those counties' territory. C. On November 19, 2012, the California Supreme Court issued a decision in City of Alhambra v. County of Los Angeles (2012) 55 CalAth 707. In the decision, the court held that the method used by counties to calculate PTAF is improper. The County has implemented the City of Alhambra decision for the 2012-13 and future fiscal years. RELEASE AND SETTLEMENT AGREEMENT — Page 1 of 7 2015-159 D. There is currently pending in the Kings County Superior Court a PTAF case that contains a Statute of Limitations issue and other issues. The parties acknowledge that resolution of these remaining PTAF issues through the court system could take many years. Any and all liability and damages resulting from these remaining PTAF issues, and any and all amounts owed by County to City pursuant to the City of Alhambra case for fiscal years 2006-07 through 2011-12, are referred to herein as "County PTAF Liability". E. The parties desire to avoid the additional expense, delay and uncertainty that would result from continuance of the PTAF dispute and have agreed to settle amicably said dispute and any underlying claims and litigation between them including the County PTAF Liability, rather than engage in protracted litigation. F. The City and County are currently in a separate dispute relating to solid waste disposal fees incurred and owed by the City to the County prior to the City's filing of a petition in the bankruptcy court (the "Solid Waste Disposal Fees"). The parties desire to avoid the additional expense, delay and uncertainty that would result from continuance of the Solid Waste Disposal Fee dispute and have agreed to settle amicably said dispute rather than engage in protacted litigation. The City currently owes the County $962,743.44 in Solid Waste Disposal Fees and is desirous of paying said amount to the County ("City Settlement Amount"). II.SETTLEMENT TERMS A. SETTLEMENT PAYMENT. The County, in partial consideration of the performance of this Agreement by City, shall pay to City the total sum of $2,602,716.74 (the "County Settlement Amount"). The City shall pay the City Settlement Amount to County within five days of the Effective Date of this Agreement. The County shall pay the RELEASE AND SETTLEMENT AGREEMENT — Page 2 of 7 2015-159 County Settlement Amount within five days of receipt of the City Settlement Amount. The County Settlement Amount and City Settlement Amount shall each be made by warrant or funds transfer, or in such other form as the parties may agree upon. The parties shall provide to each other such information as may be necessary to effectuate this payment. B. DISMISSAL OF CLAIM AND LAWSUIT, IF ANY. Within 15 calendar days of the Effective Date of this Agreement, if City has filed any claim pertaining to the PTAF dispute or the County PTAF Liability, City shall take all necessary steps to dismiss and withdraw its claim, including providing written notice to County that City is withdrawing the claim. Within 15 calendar days of the Effective Date of this Agreement, if City has filed any lawsuit pertaining to the PTAF dispute or the County PTAF Liability, City shall take all necessary steps to dismiss the lawsuit with prejudice, and shall provide written notice to County that City has filed such dismissal. Within 30 calendar days of the receipt of the City Settlement Amount, if County has filed any claim pertaining to the Solid Waste Disposal Fees dispute, County shall take all necessary steps to dismiss and withdraw its claim, including providing written notice to City that County is withdrawing the claim. Within 30 calendar days of the receipt of the City Settlement Amount, if County has filed any lawsuit pertaining to the Solid Waste Disposal Fees dispute, County shall take all necessary steps to dismiss the lawsuit with prejudice, and shall provide written notice to City that County has filed such dismissal. C. MUTUAL RELEASES. Each and every party to this Agreement, on behalf of that party, and its representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected official, directors and attorneys ("Releasors") release every other party to RELEASE AND SETTLEMENT AGREEMENT — Page 3 of 7 2015-159 this Agreement and every other parties' representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected officials, directors and attorneys ("Releasees") from any and all disputes, damages, actions, causes of action, suits, rights, demands, controversies, entitlement to equitable relief, liabilities, fees, costs, interest and any other claims, of any nature whatsoever, known or unknown, suspected or unsuspected, whether in tort or in contract or statutory or under any other theory, arising out of, in connection with or relating in any way to the PTAF dispute and/or the County PTAF Liability and/or the Solid Waste Disposal Fees dispute. D. RELEASE OF UNKNOWN CLAIMS /WAIVER OF CIVIL CODE SECTION 1542. Each party to this Agreement expressly, voluntarily and knowingly waives and relinquishes all rights arising out of, in connection with or relating in any way to the PTAF dispute or the County PTAF Liability or the Solid Waste Disposal Fees dispute to which it or its Releasors would be entitled now or at any time hereafter under section 1542 of the Civil Code, as against the other parties to this Agreement and their Releasees, and does so understanding and acknowledging the significance of such specific waiver. Section 1542 of the Civil Code provides: "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." E. ATTORNEYS' FEES AND COSTS. The parties to this Agreement will each bear their own attorneys' fees and other costs and expenses arising in any way from the PTAF dispute and/or the County PTAF Liability and/or the Solid Waste Disposal Fees RELEASE AND SETTLEMENT AGREEMENT — Page 4 of 7 2015-159 dispute. To the extent that any party seeks to enforce this Agreement and a court finds that the position taken by the opposing party was "without substantial justification," then attorneys' fees for enforcement of the Agreement shall be allowable. F. COMPROMISE. This Agreement is the result of a compromise and settlement of disputed claims, and nothing set forth in it shall be deemed or construed as an admission of any liability by any of the parties to any of the other parties or the Releasees. G. MUTUAL DRAFTING. The parties, having mutually drafted this Agreement, agree that no party to the Agreement will be deemed to have been the primary author of this Agreement or any portion of it. The parties therefore agree that section 1654 of the Civil Code, and other legal principles or laws that call for the construction of ambiguous or uncertain terms against the drafting party shall not apply or be invoked for any purpose whatsoever. H. NO ASSIGNMENT. The parties have not assigned any of the claims, demands, or causes of action that are released and discharged under this Agreement. I. COUNTERPARTS. This Agreement may be executed in several counterparts and by fax copies and, as so executed, will constitute one agreement, binding on the parties to this Agreement, notwithstanding that such parties are not signatories to the original or the same counterparts. J. WARRANTIES OF COMPREHENSION, CONSENT AND AUTHORITY. Each person executing this Agreement warrants that he or she comprehends the terms of this Agreement, and further warrants that he or she is executing this Agreement freely on RELEASE AND SETTLEMENT AGREEMENT— Page 5 of 7 2015-159 the advice of the undersigned counsel and that, if signing on behalf of an entity, he or she has the right and authority to execute the Agreement on that entity's behalf. K. INTEGRATED AGREEMENT. This Agreement is the final expression of the parties' agreement with respect to the settlement of the PTAF dispute and the County PTAF Liability and the Solid Waste Disposal Fees dispute and supersedes all prior written or oral communications between the parties. The parties cannot amend, alter, modify, or otherwise change this Agreement, except by a writing executed by all parties hereto and expressly stating that it is an amendment to this Agreement. The parties will make no claim, and waive any right they now have or may have, based upon any alleged oral alteration, oral amendment, or oral modification, except as set forth expressly in a written amendment executed as provided in this paragraph. L. SEVERABILITY. If any provision of the Agreement is held invalid, the remainder of the Agreement shall nevertheless remain in full force and effect in all other circumstances, so long as the essential purpose of the Agreement can still be achieved by both sides to the settlement embodied in this Agreement. M. BREACH. The Parties agree that this Agreement shall be deemed breached and a cause of action accrued thereon immediately upon the commencement by any party of any action or proceeding contrary to the terms of this Agreement. In any such action or proceeding this Agreement may be pleaded as a defense, or may be asserted by way of counter-claim or cross-complaint. N. MISTAKE. The Parties fully understand and declare that if the facts under which this Agreement is executed are found hereafter to be different from the facts now believed by them to be true they assume the risk of such possible differences in facts and RELEASE AND SETTLEMENT AGREEMENT — Page 6 of 7 2015-159 hereby agree that this Agreement shall be, and will remain, effective, notwithstanding such differences in facts. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates shown below. DATED: CITY OF SAN BERNARDINO By: (signature) Allen J. Parker (type or print name) Its: City Manager (type or print title) DATED: COUNTY OF SAN BERNARDINO By: Gregory C. Devereaux Chief Executive Officer APPROVED AS TO FORM: ity Attorney County Counsel RELEASE AND SETTLEMENT AGREEMENT— Page 7 of 7 2015-159 PROPERTY TAX ADMINISTRATION FEE AND SOLID WASTE DISPOSAL FEES RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made by and between • the County of San Bernardino ("County") and the City of San Bernardino ("City"). This Agreement shall be effective at the time that the last party to this Agreement executes same and provides proof of that signing to the parties to this Agreement (the "Effective Date"). I. RECITALS A. A dispute arose between the County and the City regarding the amount of property tax administration fees ("PTAF") charged to cities by the County and County officers, beginning in fiscal year 2006-07, pursuant to various provisions of the Revenue and Taxation Code. The City contended that the County charged more for PTAF than its statutory mandate allows, whereas the County contended that it charged PTAF within its statutory authority. B. The same dispute arose between the County and other cities located in the County, and between other California counties and many cities located within those counties' territory. C. On November 19, 2012, the California Supreme Court issued a decision in City of Alhambra v. County of Los Angeles (2012) 55 CalAth 707. In the decision, the court held that the method used by counties to calculate PTAF is improper. The County has implemented the City of Alhambra decision for the 2012-13 and future fiscal years. RELEASE AND SETTLEMENT AGREEMENT — Page 1 of 7 2015-159 D. There is currently pending in the Kings County Superior Court a PTAF case that contains a Statute of Limitations issue and other issues. The parties acknowledge that resolution of these remaining PTAF issues through the court system could take many years. Any and all liability and damages resulting from these remaining PTAF issues, and any and all amounts owed by County to City pursuant to the City of Alhambra case for fiscal years 2006-07 through 2011-12, are referred to herein as "County PTAF Liability". E. The parties desire to avoid the additional expense, delay and uncertainty that would result from continuance of the PTAF dispute and have agreed to settle amicably said dispute and any underlying claims and litigation between them including the County PTAF Liability, rather than engage in protracted litigation. F. The City and County are currently in a separate dispute relating to solid waste disposal fees incurred and owed by the City to the County prior to the City's filing of a petition in the bankruptcy court (the "Solid Waste Disposal Fees"). The parties desire to avoid the additional expense, delay and uncertainty that would result from continuance of the Solid Waste Disposal Fee dispute and have agreed to settle amicably said dispute rather than engage in protacted litigation. The City currently owes the County $962,743.44 in Solid Waste Disposal Fees and is desirous of paying said amount to the County ("City Settlement Amount"). II.SETTLEMENT TERMS A. SETTLEMENT PAYMENT. The County, in partial consideration of the performance of this Agreement by City, shall pay to City the total sum of$2,602,716.74 (the "County Settlement Amount"). The City shall pay the City Settlement Amount to County within five days of the Effective Date of this Agreement. The County shall pay the RELEASE AND SETTLEMENT AGREEMENT— Page 2 of 7 2015-159 County Settlement Amount within five days of receipt of the City Settlement Amount. The County Settlement Amount and City Settlement Amount shall each be made by warrant or funds transfer, or in such other form as the parties may agree upon. The parties shall provide to each other such information as may be necessary to effectuate this payment. B. DISMISSAL OF CLAIM AND LAWSUIT, IF ANY. Within 15 calendar days of the Effective Date of this Agreement, if City has filed any claim pertaining to the PTAF dispute or the County PTAF Liability, City shall take all necessary steps to dismiss and withdraw its claim, including providing written notice to County that City is withdrawing the claim. Within 15 calendar days of the Effective Date of this Agreement, if City has filed any lawsuit pertaining to the PTAF dispute or the County PTAF Liability, City shall take all necessary steps to dismiss the lawsuit with prejudice, and shall provide written notice to County that City has filed such dismissal. Within 30 calendar days of the receipt of the City Settlement Amount, if County has filed any claim pertaining to the Solid Waste Disposal Fees dispute, County shall take all necessary steps to dismiss and withdraw its claim, including providing written notice to City that County is withdrawing the claim. Within 30 calendar days of the receipt of the City Settlement Amount, if County has filed any lawsuit pertaining to the Solid Waste Disposal Fees dispute, County shall take all necessary steps to dismiss the lawsuit with prejudice, and shall provide written notice to City that County has filed such dismissal. C. MUTUAL RELEASES. Each and every party to this Agreement, on behalf of that party, and its representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected official, directors and attorneys ("Releasors") release every other party to RELEASE AND SETTLEMENT AGREEMENT — Page 3 of 7 2015-159 this Agreement and every other parties' representatives, trustees, predecessors, successors, assigns, affiliates, subrogors, subrogees, assignees, assignors, subsidiaries, agents, employees, servants, officers, elected officials, directors and attorneys ("Releasees") from any and all disputes, damages, actions, causes of action, suits, rights, demands, controversies, entitlement to equitable relief, liabilities, fees, costs, interest and any other claims, of any nature whatsoever, known or unknown, suspected or unsuspected, whether in tort or in contract or statutory or under any other theory, arising out of, in connection with or relating in any way to the PTAF dispute and/or the County PTAF Liability and/or the Solid Waste Disposal Fees dispute. D. RELEASE OF UNKNOWN CLAIMS /WAIVER OF CIVIL CODE SECTION 1542. Each party to this Agreement expressly, voluntarily and knowingly waives and relinquishes all rights arising out of, in connection with or relating in any way to the PTAF dispute or the County PTAF Liability or the Solid Waste Disposal Fees dispute to which it or its Releasors would be entitled now or at any time hereafter under section 1542 of the Civil Code, as against the other parties to this Agreement and their Releasees, and does so understanding and acknowledging the significance of such specific waiver. Section 1542 of the Civil Code provides: "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." E. ATTORNEYS' FEES AND COSTS. The parties to this Agreement will each bear their own attorneys' fees and other costs and expenses arising in any way from the PTAF dispute and/or the County PTAF Liability and/or the Solid Waste Disposal Fees RELEASE AND SETTLEMENT AGREEMENT — Page 4 of 7 2015-159 dispute. To the extent that any party seeks to enforce this Agreement and a court finds that the position taken by the opposing party was "without substantial justification," then attorneys' fees for enforcement of the Agreement shall be allowable. F. COMPROMISE. This Agreement is the result of a compromise and settlement of disputed claims, and nothing set forth in it shall be deemed or construed as an admission of any liability by any of the parties to any of the other parties or the Releasees. G. MUTUAL DRAFTING. The parties, having mutually drafted this Agreement, agree that no party to the Agreement will be deemed to have been the primary author of this Agreement or any portion of it. The parties therefore agree that section 1654 of the Civil Code, and other legal principles or laws that call for the construction of ambiguous or uncertain terms against the drafting party shall not apply or be invoked for any purpose whatsoever. H. NO ASSIGNMENT. The parties have not assigned any of the claims, demands, or causes of action that are released and discharged under this Agreement. I. COUNTERPARTS. This Agreement may be executed in several counterparts and by fax copies and, as so executed, will constitute one agreement, binding on the parties to this Agreement, notwithstanding that such parties are not signatories to the original or the same counterparts. J. WARRANTIES OF COMPREHENSION, CONSENT AND AUTHORITY. Each person executing this Agreement warrants that he or she comprehends the terms of this Agreement, and further warrants that he or she is executing this Agreement freely on RELEASE AND SETTLEMENT AGREEMENT — Page 5 of 7 2015-159 the advice of the undersigned counsel and that, if signing on behalf of an entity, he or she has the right and authority to execute the Agreement on that entity's behalf. K. INTEGRATED AGREEMENT. This Agreement is the final expression of the parties' agreement with respect to the settlement of the PTAF dispute and the County PTAF Liability and the Solid Waste Disposal Fees dispute and supersedes all prior written or oral communications between the parties. The parties cannot amend, alter, modify, or otherwise change this Agreement, except by a writing executed by all parties hereto and expressly stating that it is an amendment to this Agreement. The parties will make no claim, and waive any right they now have or may have, based upon any alleged oral alteration, oral amendment, or oral modification, except as set forth expressly in a written amendment executed as provided in this paragraph. L. SEVERABILITY. If any provision of the Agreement is held invalid, the remainder of the Agreement shall nevertheless remain in full force and effect in all other circumstances, so long as the essential purpose of the Agreement can still be achieved by both sides to the settlement embodied in this Agreement. M. BREACH. The Parties agree that this Agreement shall be deemed breached and a cause of action accrued thereon immediately upon the commencement by any party of any action or proceeding contrary to the terms of this Agreement. In any such action or proceeding this Agreement may be pleaded as a defense, or may be asserted by way of counter-claim or cross-complaint. N. MISTAKE. The Parties fully understand and declare that if the facts under which this Agreement is executed are found hereafter to be different from the facts now believed by them to be true they assume the risk of such possible differences in facts and RELEASE AND SETTLEMENT AGREEMENT— Page 6 of 7 2015-159 hereby agree that this Agreement shall be, and will remain, effective, notwithstanding such differences in facts. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates shown below. DATED CITY OF SAN BERNARDINO By: �--- (sgnature) Allen J. Parker (type or print name) Its: City Manager (type or print title) DATED: COUNTY OF SAN BERNARDINO By ry C. Devereaux Chief Executive Officer APPROVED AS TO FORM: C� ity Attorney Co uns RELEASE AND SETTLEMENT AGREEMENT — Page 7 of 7