HomeMy WebLinkAboutGrigoras, Ludvik and Veronica; 2018-07-16;SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement"), effective as of the date
executed herein, by and between Plaintiff CITY OF CARLSBAD (hereinafter referred to as "CITY")
and Defendants LUDVIK GRIGORAS and VERONICA GRIGORAS (hereinafter referred to as
"PROPERTY OWNERS") and sometimes collectively herein referred to as "PARTIES," is made with
reference to the following facts:
RECITALS
1. PROPERTY OWNERS are the legal owner of the Carlsbad Mineral Water Spa, located
at 2802 Carlsbad Boulevard, Carlsbad, in the County of San Diego, California (Assessor Parcel
Numbers 203-173-01-11 and 203-172-28-00) (herein after referred to as "PROPERTY").
2. This Agreement arises out of PROPERTY OWNERS' maintenance of four unpermitted
12,000 gallon water tanks and unpermitted eight-foot fence surrounding a portion of the
PROPERTY, which constituted a violation of Carlsbad Municipal Code section 18.04.015.
3. Additionally, the water tanks and eight-foot fence are subject to Carlsbad Municipal
Code section 21.35.080(b)(l) (Administrative Review Permit) and Carlsbad Municipal Code
section 21.201.080(C)(l) (Minor Coastal Development Permit), and PROPERTY OWNERS were
required to apply for and receive these permits before a building permit could be issued.
4. On May 2, 2016, the eight-foot fence was lowered to six feet or below, such that a
minor variance and building permit for the fence was no longer required pursuant to Carlsbad
Municipal Code section 21,050.040(A)(l)(c).
5. Between July 21, 2014 and July 9, 2015, CITY issued several administrative citations
including civil penalties for the above stated violations of Carlsbad Municipal Code section
18.04.015 pursuant to Carlsbad Municipal Code section 1.10.070((), in the aggregate amount of
$19,500.00. CITY also issued late civil penalty fees pursuant to Carlsbad Municipal Code section
1.10.110 in the aggregate amount of $19,500.00, bringing to $39,000.00 the total amount of civil
penalties and late civil penalty fees assessed against PROPERTY OWNERS during the
aforementioned time period.
6. On January 29, 2016, CITY filed a civil action in the Superior Court for the State of
California, in and for the County of San Diego, case number 37-2016-00003099-CU-MC-NC
(hereafter referred to as "Action") seeking an injunction and payment of the administrative
citation fines and penalties outlined in paragraph 5.
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7. On May 10, 2016, CITY and Property Owners filed a Notice of Conditional
Settlement and Stipulated Judgment (Cal. Code Civ. Proc. § 664.6) ("Stipulated Judgment")
setting forth deadlines for PROPERTY OWNERS to apply for and obtain required permits and to
request a final inspection. The Notice of Conditional Settlement and Stipulated Judgment, as
well as three Stipulations to Continue Dismissal (dated November 14, 2016, June 12, 2017 and
November 9, 2017) are incorporated herein by reference, and are on file with the Court.
8. On December 6, 2017, PROPERTY OWNERS had not yet requested a final
inspection of the Property in accordance with the timeline mandated by City in the third
Stipulation to Continue Dismissal. CITY deemed the failure of Property Owners to request a final
inspection of the Property by December 6, 2017 a violation of the Stipulated Judgment,
whereas Property Owners contend they did not violate the Stipulated Judgment.
9. On February 27, 2018, CITY filed a motion to enforce the terms of the Stipulated
Judgment. This motion was scheduled to be heard on May 18, 2018 but was continued to
August 3, 2018 by mutual consent of the PARTIES. This motion and the Stipulated Judgment
constitute the "Entire Case."
10. Meanwhile, between December 6, 2017 and April 19, 2018, CITY issued
additional citations to PROPERTY OWNERS in the amount of $28,000.00. No late civil penalty
fees were assessed during this period.
11. The PARTIES now desire to finally and fully resolve their dispute by entering into
this Agreement. By entering into this Agreement, PROPERTY OWNERS and CITY desire to
resolve any and all past, present, and future claims, demands, losses, damages, costs,
attorney's fees, actions, causes of action, and liabilities of whatever kind and nature, whether
known or unknown, suspected or claimed, investigated or not investigated, which arise from, or
are directly or indirectly related to the claims and defenses as alleged in the Action, and in
order to preclude any potential future litigation between and among the PARTIES relating to
the claims and defenses in and regarding the Action. All terms of this Agreement are to be
construed so that their meaning will effectuate this intent.
12. This Agreement is being entered into after arms-length negotiations between
the PARTIES, in absolute good faith and in a spirit of settlement and compromise, and approved
by CITY through its City Council on June 12, 2018. It is based upon the information and facts
learned in the course of enforcement efforts, investigation, uncertainty of litigation, costs of
litigation and the desire of the PARTIES to reasonably settle this Action, as between themselves,
on the terms and conditions set forth in this Agreement. All of the negotiations and
correspondence between the Parties related to the negotiation of this Agreement shall be
deemed to be settlement negotiations and subject to Evidence Code section 1152.
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SETTLEMENT TERMS
13. Consideration-Partial Payment of Fines. As consideration for the execution of
this Agreement, CITY shall receive partial payment of outstanding fines in the amount of
$20,000.00 from PROPERTY OWNERS, to be tendered in four monthly installments of
$5,000.00 per month. The first payment shall be due on or before July 18, 2018. The
second payment shall be due on or before August 31, 2018. The third payment shall be due
on or before September 28, 2018. The fourth and final payment shall be due on or before
October 31, 2018. Each payment must be received by CITY on or before each of these
dates, no later than 5:00PM. It is the responsibility of PROPERTY OWNERS to either hand-
deliver such payments or mail them in advance to allow for prompt receipt of payment.
Payments sent by mail shall be addressed as follows:
City of Carlsbad
Office of the City Attorney
Reference: Case Number 37-2016-00003099-CU-MC-NC
Attn: Deputy City Attorney Marissa Kawecki
1200 Carlsbad Village Drive
Carlsbad, CA 92008
14. Consideration-Compliance. Also as consideration for execution of this Agreement,
PROPERTY OWNERS agree to remain, to the best of their good faith knowledge and ability,
in compliance with all applicable city code, state code, land use permits and regulations
pertaining to the PROPERTY for as long as said PROPERTY is owned by PROPERTY OWNERS.
15. Consideration-Waiver of Rights. As further consideration for execution of this
Agreement, PROPERTY OWNERS understand that they have the right to be served with a
notice of violation or stop work order for any further violation of the Carlsbad Municipal
Code related to the PROPERTY, and that they are knowingly and intelligently waiving those
rights by executing this voluntary Agreement. PROPERTY OWNERS hereby agree that CITY
shall have the ability to immediately issue administrative citations without first issuing a
notice of violation, and may, where good faith investigation reveals a violation of the
Carlsbad Municipal Code, pursue any and all remedies, if appropriate and necessary, to
ensure future code compliance and correct any code violations without further written
notice to PROPERTY OWNERS in matters pertaining to compliance of the PROPERTY.
16. Attorneys' Fees. The PARTIES agree to bear their own attorneys' fees and costs
associated with the Action.
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17. Dismissal of Court Action. CITY shall file with the Court a Request for Dismissal of the
Entire Case, with prejudice of the Action no later than ten (10) days after full execution of
this Agreement and receipt of PROPERTY OWNERS' first installment ($5,000.00) of the
settlement amount.
18. Closure of Code Compliance Case. Upon receipt of the final installment payment, CITY
will close city enforcement case number CE-14-0638 and waive and release any and all
claims, damages, and fines against PROPERTY OWNERS for case number CE-14-0638.
19. Remedies for Non-Compliance. At the discretion of the City Manager, City Attorney or
designee, one or more of the following remedies may be pursued by CITY if PROPERTY
OWNER fails to timely make any of the four payments of fines set forth in Paragraph 1 of
the Settlement Terms. The consequences to PROPERTY OWNERS for non-compliance
include those remedies set forth in section 1.10.030 of the Carlsbad Municipal Code,
including filing a civil action for any claims not addressed by the Action and withholding of
future municipal permits (including discretionary permits, building permits, etc.). PROPERTY
OWNER acknowledges that CITY may seek to charge any unpaid penalty, fee or cost as a lien
against PROPERTY where the underlying code violations occurred, and that the unpaid
amount may be a joint and several personal obligation for all persons responsible for the
violation. Alternatively, CITY may seek to impose a special assessment against PROPERTY or
file a claim against PROPERTY OWNERS' income tax return through the California State
Franchise Tax Board.
20. Hold Harmless. PROPERTY OWNERS will indemnify and hold harmless (without limit as
to amount) CITY and its elected officials, officers, employees and agents in their official
capacity (hereinafter collectively referred to as "lndemnitees"), and any of them, from and
against all third party claims of loss, risk of loss and damage (including reasonable
attorneys' fees and costs) sustained or incurred by City because of or by reason of any and
all claims, demands, suits, actions, judgments and executions for damages caused by,
arising out of or relating to PROPERTY OWNERS' breach of the terms of its obligations
under this Agreement, and shall protect and defend lndemnitees, and any of them with
respect thereto. This provision shall survive the term of this Agreement.
21. Duration of Agreement. This Agreement shall remain in effect from the date of
execution and terminate upon the final payment of the fines as set forth in Paragraph 1.
RELEASE PROVISIONS
22. Mutual Release of all Parties: The PARTIES, on behalf of themselves, their
representatives, assigns, successors, agents, heirs, insurance carriers, officers, employees,
directors, trustees, board members, affiliates, executors and administrators hereby release
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and discharge all PARTIES to this Agreement and their representatives, assigns, successors,
agents, heirs, insurance carriers, officers, employees, directors, trustees, board members,
affiliates, executors and administrators from any and all actions, causes of compensation,
costs, expenses, liens, and attorneys' fees, whether or not contingent, unliquidated, or
unmatured, known or unknown, arising out of, concerning, resulting from or relating to any
claims which were the subject of the Action, as referenced above, or any facts or incidents
relating to or arising from the Complaint on file herein.
23. Waiver of Unknown Claims: All rights under Section 1542 of the Civil Code of the State
of California are hereby waived with respect to the releases set forth above. Civil Code
section 1542 states:
"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."
The PARTIES understand and acknowledge the significance and consequences of this
specific waiver of Section 1542 and hereby assume full responsibility for and release any and all
actions, causes of actions, claims, demands, damages, compensation, costs, expenses and
attorneys' fees, which may currently exist, which may hereafter occur or which may later
become known to the Parties.
24. Representations of Parties. The PARTIES each represent and warrant that they have
freely considered, reviewed, and negotiated the terms of this Agreement, have had the
opportunity to discuss it with her/their legal advisors or have been given the opportunity to
retain an attorney and discuss the terms of this Agreement with said attorney, and that all
have signed it voluntarily. By voluntarily signing this Agreement, the PARTIES represent and
warrant that they have relied on their own judgment and any independent legal advice they
may have sought and not upon any recommendations or representations of the other or
from any opposing attorneys or third parties. By voluntarily signing this Agreement, the
PARTIES each confirm that they understand and accept the terms of this Agreement as
resolving all claims known and unknown they have or might have had against the other. The
PARTIES represent and warrant that they have the full right, capacity, and authority to enter
into and perform this Agreement. Such representations and warranties shall survive full
execution and performance under this Agreement.
25. Representations and Warranties Re: Claims. Each of the PARTIES hereto represent and
warrant, for the benefit of each of the other PARTIES, that they are the owners of the claims
which are the subject of this Agreement and that such claims have not been assigned,
transferred or hypothecated, whether voluntarily or involuntarily, by subrogation,
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operation of law or otherwise, to any other person or entity. Such representations and
warranties shall survive full execution of and performance under this Agreement.
26. No Admission of Liability. The PARTIES acknowledge that by entering into this
Agreement, the PARTIES are not admitting the sufficiency of any claims, fines, allegations,
assertions, contentions or position, or the sufficiency of the defense to any such claims,
fines, allegations, assertions, contentions or position. PROPERTY OWNERS specifically deny
they violated any terms of the Stipulated Judgment, or were otherwise in violation of the
Carlsbad Municipal Code on or after December 6, 2017, because they contend construction
was delayed by forces outside of their control, and CITY was obligated by Paragraph 6B of
the Stipulated Judgment to extend the period in which PROPERTY OWNERS were required
to request a final inspection because PROPERTY OWNERS were diligently and in good faith
endeavoring to comply with all pertinent timelines imposed by the Stipulated Judgment.
CITY, on the other hand, contends that it provided sufficient time for PROPERTY OWNERS to
complete all required construction and request a final inspection on or before December 6,
2017, and that CITY properly issued administrative citations after December 6, 2017.
Notwithstanding the foregoing, this Agreement constitutes a compromise of this dispute
that is executed by the PARTIES for the sole purpose of compromising and settling the
claims in this Action, as well as all past, present, or potential future claims relating to the
subject matter of this Action. It is expressly understood and agreed, as a condition hereof,
that this Agreement or its terms or any payment made hereunder, whether this instrument
becomes effective or not, shall not constitute or be construed as an admission to the truth
of any of the allegations made in this Action.
27. Entire Agreement. This Agreement contains the entire agreement and understanding
between the PARTIES with respect to any and all disputes or claims the PARTIES have, or could
have had, against each other as of the date this Agreement is executed, and supersedes all
other agreements with regard to such disputes or claims. This Agreement shall not be changed
unless in writing and signed by both PARTIES.
28. Severability. The invalidity or unenforceability of any provision of this Agreement shall
not affect or impair any other provisions, which shall remain in full force and effect.
29. Execution by the Parties. This Agreement may be executed by the PARTIES in one or
more counterparts, and may be executed on copies, each of which shall be deemed an
original, and all of which together constitute one and the same instrument.
30. Electronic Record. The PARTIES may convert this Agreement into an electronic record.
The PARTIES consent to and recognize the validity, enforceability and admissibility of such
record, which shall have the same force and effect as the original Agreement.
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IN WITNESS WHEREOF, the PARTIES have executed this Agreement as of the dates set
forth below.
Dated: 7 0 h ff 6 • 2018
Dated:
Dated: -----=-7-+-/ _J ~0 __ _,. 2018 I
APPROVED AS TO FORM:
Dated: j}l~ / lo • 2018
Dated: ~ tv / /o • 2018
CITY OF CARLSBAD, Plaintiff
By: Debbie Fountain
Director of Community & Economi
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VERONICA GRIGORAS, Defendu
Marissa A. Kawecki,
Deputy City Attorney for City of Carlsbad
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Jeremy Jungreis, Esq., Attorney, Rutan & Tucker LLP
for Ludvik Grigoras and Veronica Grigoras
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