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HomeMy WebLinkAboutMINUTES - 06132006 - C.3 tie._r_ TO: BOARD OF SUPERVISORS .......� J�' Contra . �i FROM: MAURICE M. SHIU PUBLIC WORKS DIRECTOR } Costa 3 DATE: June 13, 2006 CO ., County SUBJECT: Relocation Settlement Agreement with Cingular Wireless LLC, State Route 4 East, Railroad Avenue to Loveridge Road, Pittsburg area. (District V) Project No.: 4660-6X4287, Task: RPC SPECIFIC REQUEST(S)OR RI CONIN1I-NDATION(S)&BACKGROUND AND JUSTIFICATION REMNIVIENDED ACTION: APPROVE and AUTHORIZE the Public Works Director, or designee, to execute, on behalf of Contra Costa County the Termination of Sublease and Relocation Settlement Agreement with Cingular Wireless LLC (Cingular) effective June 13, 2006 for displacement and relocation costs in connection with the State Route 4 East, Railroad Avenue to Loveridge Road project in Pittsbu►-g. APPROVE settlement payment of$75,000.00 and AUTHORIZE the Auditor-Controller to issue a check in said \) amount payable to Cingular Wireless LLC to be Forwarded to the Contra Costa County Public Works Department, Real Property Division for delivery. CONTINUED ON ATTACHMENT: E SIGNATUI RE(:ON,IiN-IENI)A"l"ION OF(.'OLINT)'AD:�IINISI-R:�I'OR RE NDA"1 :'OF BOARD COMMITTEE APPROVE OTHER r SIGNATURF.(S): j ACTION OF 130A l )N , Gy-v7 e/ /'0/ 44W6 APPROVED AS RECOMMENDED OTI-11=.R VOTE 01:St.II'ERV ISORS: I I-IEREI3Y CERTIFY THAT•I I IIS IS A TRUE AND CORRECT *110- �� COPY OF AN ACTION TAKEN AND I:\"TI_ItI D ON lel UNANIMOUS(.ABSENT /'"71) ) MINUTES OF 'I I II: BOARD OF SUPERVISORS ON l'I IE AYES: NOES: DA"rE SHOWN. ABSENT: ABSTAIN: Contact: K. Laws 3-21228—Real Property Division KI-:la(l: GAZeall'rop\I.isa D\3006\13oard Orders\CinLular Relocation A_-nit 6-I3-06.doc ATTESTED + / ` -ego4: JOHN CUI_I_EN,CI-I-RK OF'I I IF BOARD 01 SUPERVISORS cc: County Administrator Auditor-Controller(via R P) PW Acct. Weston, Bcnshoof", Rochefort, Rubalcava& MacCuish BY: DEPUI Y SUBJECT: Relocation Settlement Agreement with Cingular Wireless LLC,State Route 4 East,Railroad Avenue to Loveridge Road, Pittsburg area. (District V) Project No.: 4660-6X4287, Task: RPC DATE: June 13, 2006 PAGE: 2 of 2 FISCAL: IMPACT: The settlement costs will be funded by the Contra Costa Transportation Authority(OCTA). REASONS FOR RECOMMENDATIONS AND BACKGROUND: Cingular was required to relocate their facilities due to the State Route 4 East Widening,Railroad Avenue to Loveridge Road project. Under State and Federal law, United States Code Section 4601 et seq., displacees are entitled to compensation for relocation and loss of goodwill. The settlement was agreed upon through negotiations between Contra Costa County and Cingular. CONSEQUENCES OF NEGATIVE ACTION: The County will not be in compliance with State and Federal law. TERMINATION OF SUBLEASE AND RELOCATION SETTLEMENT AGREEMENT Cingular This Termination of Sublease and Relocation Settlement Agreement("Agreement")is made and entered into in Contra Costa County,California on 01-15 ,2006 by and between the County of Contra Costa, a political subdivision of the State of California ("Agency") and Cingular Wireless LLC ("Cingular"). Agency and Cingular are collectively referred to herein as"Parties." This Agreement is made with respect to the following: RECITALS A. On August 25, 2004, Agency acquired title to the property located at 105 Bliss Avenue, Pittsburg, CA ("the Subject Property") for construction of the State Route 4 East Project. B. Prior to Agency's acquisition of the Subiect Property, Cingular occupied a portion of the Subject Property pursuant to a sublease,and operated a business through a cellular tower on the Subject Property. C. Construction of the State Route 4 East Project on the Subject Property required the termination of Cingular's subtenancy and the displacement and relocation of Cingular in accordance with Federal and State law, as set forth in United States Code sections 4601 et seq. and California Government Code sections 7260 et seq., and applicable regulations. D. The Parties have previously settled all disputes arising out of Agency's acquisition of the Subject Property, except for claims for relocation and moving expenses arising from the displacement and relocation of Cingular from the Subject Property. E. The Parties now desire to settle all disputes concerning, relating to, or arising out of the displacement and relocation of Cingular from the Subject Property, on the terms and under the conditions set forth herein. F. This Agreement is made with respect to all of Cingular's claims arising from the displacement and relocation of Cingular from the Subject Property,including,but not limited to,claims for relocation assistance,relocation benefits,and relocation and moving expenses,under Federal or State law, as set forth in United States Code sections 4601 et seq. and California Government Code sections 7260 et seq., and applicable regulations. AGREEMENT NOW, THEREFORE, in consideration of the lbregoing Recitals, which are incorporated herein by reference, and the covenants, warranties, and promises contained herein, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: 1. Effective Date l The Parties understand that this Agreement is subject to the approval by the Agency's Board of Supervisors and shall be effective on the date approved by Agency's Board of Supervisors. 2. Termination of Sublease The sublease entered into between Cingular and Crown Castle GT Corhpany,LLC,pursuant to which Cingular occupied the Subject Property and operated a business on the Subject Property was terminated eMctive 11:59 p.m. on February 16, 2003 ("Termination Date"). On or before the Termination Date, Cingular vacated and surrendered possession of the Subject Property to Agency. 3. Compensation (a) Agency will pay to Cingular,as provided in subparagraph(c)below,the total sum of Seventy-Five Thousand Dollars And 00/100 ($75,000.00) ("Settlement Amount"), which amount is in settlement of all claims with the Agency arising from the dislocation and relocation of Cingular from the Subject Property, including, but not limited to, claims for relocation assistance,relocation benefits,and relocation and moving expenses,under Federal or State law, as set forth in United States Code sections 4601 et seq. and California Government Code sections 7260 et seq., and applicable regulations. (b) Cingular acknowledges and agrees that the Settlement Amount includes any and all benefits,expenses,relocation.assistance payments or compensation to which Cingularmaybe entitled to receive under Federal or State law(including that set forth in United States Code sections 4601 et seq. and California Government Code sections 7260 et seq.,and applicable regulations)arising out of or connected with the dislocation and relocation of Cingular from the Subject Property in connection with Agency s acquisition of the Property. (c) Agency will issue a warrant for the Settlement Amount, payable as instructed by Cingular, within thirty(30) days following execution and approval of this Agreement. 4. Hazardous Materials Representation To the best of its actual knowledge, without the duty of inquiry, Cingular represents that, during its occupancy of the Subject Property, there have been no disposals, releases or threatened releases of hazardous substances or hazardous wastes on, from or under the Subject Property, and that Cingular's improvements on the Subject Property that were acquired by Agency in connection with Agency's acquisition of the Subject Property do not contain any toxic or hazardous materials. 5. Waiver and Release (a) Cingular, on behalf of itself and each of its employees, agents, attorneys, officers, directors,shareholders,partners,subsidiaries,affiliates, successors and assigns hereby waives, and releases and discharges Agency and each of its employees, agents, attorneys, officers, divisions, related agencies and entities, affiliates, successors and assigns, from any and all rights, claims, demands, causes of action, obligations, damages and liabilities, including without limitation, attorneys' fees and costs,which Cingular now has or could assert now or 2 at any time in the future against Agency arising from the dislocation and relocation of Cingular from the Subject Property or arising from any other facts or circumstances described in this Agreement, including, but not limited to, business relocation assistance, business relocation benefits, and relocation and moving expenses, under Federal or State law, as set forth in United States Code sections 4601 et seq. and California Government Code sections 7260 et seq.,and applicable regulations. Cingular freely,knowingly and expressly waives all rights under Section 1542 of the Civil Code of the State of California arising from the dislocation and relocation of Cingular from the Subject Property or arising from any other facts or circumstances described in.this Agreement,which Cingular understands provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY .HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." (b) Cingular.acknowledges that it may, after execution of this Agreement, discover claims, damages, facts or law different from or in addition to those which are the subject of . this release of claims. Nonetheless, given Cingular's intention to hereby fully, finally and forever settle all released matters, Cingular agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional claims,damages, facts or law which may be discovered later. Cingular shall not be entitled to any relief in connection therewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. . (c) Cingular acknowledges that it is not relying upon any statement, representation or promise of Agency or any related entity in executing this Agreement. Cingular has made such investigation of the facts and law pertaining to this Agreement,and of all other matters pertaining thereto,as it deems necessary,and has consulted with legal counsel concerning all matters contained in this Agreement, including the provisions of Section 1542 of the Civil Code set forth above. 6. Voluntary Execution of Agreement The Parties hereto have freely and voluntarily executed this Agreement and are not acting . under coercion,duress,menace,economic compulsion,or because of any supposed disparity of bargaining power; rather, the Parties hereto are freely and voluntarily signing this Agreement for their own benefit. 7. . Entire Agreement This Agreement, including the Recitals,constitutes the entire agreement between the Parties with respect to the claims of Cingular arising as a result of the dislocation and relocation of Cingular from the Subject Property, and any prior written or oral agreements between the Parties concerning Cingular's.relocation claims are of no further force and effect. 3 8. Severability In the event that any term,covenant,condition or provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 9. Waiver and Amendment The provisions of this Agreement may be altered, amended or repealed, in whole or in part, only upon the prior written agreement signed by or on behalf of each Party. No waiver ofany provision of this Agreement shall be effective unless it is in writing and executed by the Party whose rights are waived. The unilateral waiver by one Party of the performance of any provision of this Agreement shall not invalidate this Agreement,nor shall it be considered as a waiver of any subsequent breach of the same or other provisions of this Agreement. 10. Construction The headings, subheadings and numbering of the different paragraphs of this Agreement are provided for convenience only,and shall not bear upon its interpretation or enforcement. 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. The Parties and their counsel agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. The Recitals are,and shall be enforceable as, a part of this Agreement. 11. Governing Law and Venue The rights and obligations of the Parties hereto shall be construed and enforced in accordance with the substantive laws of the State of California,without regard to choice oflaw principles. The venue of any litigation pertaining to this Agreement shall be Contra Costa County, California. 12. No Assi ng Ment Cingular shall not have the right to assign this Agreement or any of Cingular's rights hereunder without Agency's prior written consent. 13. Binding Agreement Subject to the foregoing restriction on assignment, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estate, heirs, legatees, agents and related entities of each of the Parties hereto. 14. Further Assurances Each of the Parties shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary to carry out 4 the provisions of this Agreement. 15. No Transfer of Right or Claims Cingular represents and warrants that it has not assigned, transferred or subleased to any third party any of the rights,claims,causes of action or items to be released or transferred as part of this Agreement. 16. Authority To Execute This Agreement Each entity executing this Agreement represents that it is authorized to execute this Agreement. Each person executing this Agreement on behalf of an entity, other than an individual executing this Agreement on his or her own behalf, represents that he or she is authorized to execute this Agreement on behalf of that entity. 17. Notices All notice; requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall be effective on the date served,if served by personal delivery(including express or courier service),or effective three(3)days after sent . by registered or certified U.S. Mail, with return receipt requested, postage prepared (with contemporaneous notice by facsimile transmission) and addressed as follows: To Contra Costa County(Agency): 255 Glacier Drive Martinez, CA 94553 Phone: (925) 313-2000 Fax:, (925) 313-2333 Attention: Karen Laws To Cingular: With copy to: Paul L. Weisbecker Weston Benshoof,,Rochefort,Rubalcava Chief Litigation Counsel, Northeast/Southeast & MacCuish Cingular Wireless LLC 333 S. Hope Street, 16`h Floor 5565 Glenridge Connector, Suite 1768 Los Angeles, CA 90071 Atlanta, Georgia 30342 Attn: Jennifer Paulsen (213) 576-1036 18. Counterparts This Agreement may be executed in counterparts,each of which shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 19. Time of Essence. Time shall be of the essence as to all dates and times of performance under this Agreement. 5 BY AFFIXING HIS/HER SIGNATURE BELOW, EACH OF THE PERSONS SIGNING THIS TERMINATION OF SUBLEASE AND RELOCATION SETTLEMENT AGREEMENT REPRESENTS THAT HE/SHE HAS READ AND UNDERSTANDS THIS TERMINATION OF SUBLEASE AND RELOCATION SETTLEMENT AGREEMENT, THAT HE/SHE IS AUTHORIZED TO SIGN THIS TERMINATION.OF SUBLEASE AND RELOCATION SETTLEMENT AGREEMENT,AND THAT THE)WARTY ON BEHALF OF WHOM HE/SHE SIGNS THIS TERMINATION OF SUBLEASE AND RELOCATION SETTLEMENT AGREEMENT AGREES TO BE BOUND BY ITS TERMS. IN WITNESS WHEREOF,the Parties to this Agreement have executed this Agreement as of the date first written above. COUNTY OF CONTRA CO in u Bless LLC By G By. 1 Ma c . Shiu Paul L. Weisbaecker Public Works Director Chief Litigation Counsel Approved as to form: Approved as to form: Silvano B. Marchesi, County Counsel Weston Bendhoof, Rochefort, Rubalcava& MacCuish By: 4 By Deputy County Counse J fifer Pau s n Attorneys for Agency Attorneys for Cing lar 1 6