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HomeMy WebLinkAbout1991-01-08; City Council; 10972; Settlement8 11: / CI'- OF CARLSBAD - AGENt- BILL AB#.-- MTG. 1/8/91 DEPT. CA DEPT. HD. - WINDSOR PROJECTS V. CITY OF CARLSBAD N41427 CITY MG TITLE: SETTLEMENT OF LAWSUIT ENTITLED RECOMMENDED ACTION: It is recommended that the City Council authorize settlement of this case by adopting Resolution No. 71-6 . ITEM EXPLANATION The City Attorney's office recommends approval of the attached settlement agreement and mutual release in the above referenced case. It concerns a development construction dispute involving practices which are no longer applicable in the City. The agreement, which speaks for itself, does not require the City to appropriate any City funds. A developer deposit will be returned and the City agrees not to pursue a contingent claim against the developer and his predecessors in interest for a questionable obligation to pay certain retroactively applied fees. In return, the developerls suit against the City will be dismissed with each party to bear its own costs. FISCAL IMPACT The City will not be appropriating any funds to settle this lawsuit. EXHIBITS Resolution No. - c3/-6 Settlement Agreement and Mutual Release SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release is made and entered effective October 8, 1990, by and between Windsor Projects, Inc., a California corporation (hereinafter referred to as IfWindsor"), and The City of Carlsbad, a Municipal corporation (hereinafter referred to as sCitylv). RECITALS A. On or about October 1, 1986, Windsor purchased from McKellar Development of La Jolla certain real property located in the City of Carlsbad, County of San Diego, State of California (the ltpropertyV1) more particularly described as follows: PARCEL 1: Lots 104 through 110, 112 through 119 and 124 through 129, of Carlsbad Tract 77-2 Unit No. 4, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10054, filed in the Office of the County Recorder of San Diego County, April 6, 1981. PARCEL 2: Lots 130 through 143, of Carlsbad Tract 77-2 Unit No. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 10088, filed in the Office of the County Recorder of San Diego County, May 12, 1981. B. On or about October 30, 1986, Windsor entered into an agreement with the City entitled "Agreement to Pay Fees or Facilities and Improvements as Required by Growth Management System1' which Agreement was recorded on November 20, 1986 as Document No. 86-537017 in the official records of San Diego County, California as a lien against the property. C. On or about January 5, 1987, City sent an invoice to Windsor for Public Facility Fees in the amount of $35,261.11. Thereafter, a dispute arose regarding the payment of said fees and the parties agreed that pending resolution of said dispute, the sum of $35,261.11 would be held in escrow no. 961131T at First American Title Insurance Company, 411 Ivy Street, San Diego, California. 1 D. On or about October 22, 1987, Windsor and City entered into a Letter Agreement (the "Letter Agreement") wherein Windsor agreed to construct certain improvements on or adjacent to the real property and deposited with City the sum of $25,000.00 cash as security for the performance of said work. A copy of said Letter Agreement and addendum thereto is attached hereto as Exhibit rlAfl and incorporated herein by reference. E. On September 7, 1988, Windsor, as plaintiff, filed a complaint in the Superior Court of the State of California, County of San Diego, North County Judicial District, as Case No. N41427, naming as defendants City and Does 1 through 50, inclusive. The Complaint sets forth five causes of action for Damages For Failure To Discharge Mandatory Duty [Govt. Code 9815.61; Breach Of Contract; Rescission; Conversion; and Declaratory Relief. The above-mentioned parties dispute their respective rights and liabilities arising out of and relating to all claims and other matters set forth in the aforementioned agreements and complaint, and desire to compromise and settle same; NOW, THEREFORE, in consideration of the terms set forth below and the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. Settlement. (a) City shall execute and record in the official records of San Diego County, California, a waiver and release of all claim and right of lien against the Windsor real property for the payment of public facilities fees, including, but not limited to, specific releases for the agreements entitled I'Agreement Between Owner, Developer and City of Carlsbad For The Payment of a Public Facilities Fee Executed by and Between McKellar Development of La Jolla, Genstar Development, Inc. (Broadmoor Homes Division) and the City of Carlsbad" recorded October 28, 1983 as file no. 83-391118 of the official records of San Diego County, California and the agreement entitled "Agreement to Pay Fees for Facilities and Improvements as Required by Growth Management Systemwt dated October 30, 1986, executed by and between Windsor Projects, Inc. and the City of Carlsbad, recorded November 20, 1986 as file no. 86-537017 of the official records of San Diego County, California. (b) City shall execute escrow instructions to First American Title Insurance Company, 411 Ivy Street, San Diego, California regarding escrow no. 961131T instructing said escrow company that the above-referenced agreements regarding the payment of public facilities fees have been released and authorizing First American Title Insurance Company and/or such other institution, where said funds have been deposited, to release the sum of $35,261.11 together with accrued interest to Windsor. 2 c (c) The City, immediately upon execution of this agreement, shall release to Windsor the $25,000.00 cash deposit together with accrued interest which was posted for security for the performance of work described in the Letter Agreement. (d) City shall waive Windsor's obligation to comply with the addendum to the Letter Agreement regarding sewer cleanouts. (e) City agrees to cooperate with Windsor in its effort to seek reimbursement from McKellar for improvements it was required to make at Los Arboles which Windsor contends were the obligation of McKellar. Said cooperation of the City is limited to making its files and personnel reasonably available to provide Windsor with relevant information relating to the dispute. Windsor acknowledges that the City takes no position relating to the merits of its claim against McKellar. (f) Except as expressly stated in this Agreement, each party hereto is to bear their respective attorney fees and costs. 2. Dismissal of Causes of Action. Upon execution and delivery of this Agreement, the parties hereto will forthwith cause their attorneys of record to execute and file in the Superior Court a twRequest for Dismissalww with prejudice of all actions referenced above as to all parties to this Agreement. 3. General Release of Known and Unknown Claims. (a) Notwithstanding the provisions of Section 1542 of the California Civil Code, excepting the covenants, agreements, stipulations and provisions contained in this Settlement Agreement and Mutual Release, the parties hereto mutually release any and all claims, causes of action, rights, obligations, debts, liabilities, accounts,, liens, damages (whether general, special consequential, punitive or otherwise), losses and expenses of any kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, patent or latent, suspected or unsuspected, contingent or unliquidated, which any party previously had, currently has or may have, arising from, relating to or in any manner connected with, directly or indirectly, the facts and matters set forth in the aforementioned recitals and civil complaint. (b) The parties hereto acknowledge that they each have been informed of the provisions of Section 1542 of the Civil Code of the State of California and do hereby expressly waive and relinquish all rights and benefits that they have or may have had under said Section, which read as follows: 3 "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. I' (c) The parties hereto understand and acknowledge the significance and consequences of said specific waiver of Section 1542, and hereby assume full responsibility for any injuries, damages or losses that they may incur as a result of the execution of this Settlement Agreement and Mutual Release. 4. Subsequent Discovery and Different or Additional Facts, Mistake of Fact of Law (a) The parties hereto acknowledge that they are aware that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims, causes of action, rights, obligations, debts, liabilities, accounts, liens, damages, losses and expenses herein released, and each agrees that the within release shall be and remain in effect in all respects as a complete and general release as to all matters released herein, notwithstanding any such different or additional facts. (b) In entering and making this Agreement, the parties hereto assume the risk of any mistake of fact or of law in that if any party should subsequently discover that any fact relied upon by such party in entering into this Agreement is not true, or that such party's understanding of the facts or law was incorrect, such party shall not be entitled to set aside this Agreement, or any portion thereof, by reason thereof. This Agreement is intended to be final and binding upon all parties hereto regardless of any mistake of law or of fact or any other circumstance whatsoever. 5. Covenant Not to Sue. The parties hereto each agree that each will not make, assert or maintain against any other party released in this Agreement any claim, demand, action, suit or proceeding arising out of or in connection with the matters respectively released herein. This Agreement may be pleaded as a full and complete defense to, and may be used as a basis for an injunction against any action, suit or other proceeding which may be prosecuted, instituted or attempted by or on behalf of any party hereto in breach of this Agreement. The parties hereto each agree to defend, indemnify and hold one another harmless against any claim, demand, right, damage, debt, liability, account, action, cause of action, cost or expense, including attorneys' fees actually paid or incurred, arising out of any such claim, demand, action, suit or proceeding asserted in connection with this Agreement or the matters respectively released herein. 4 '. -. 6. Warranties. (a) Each party hereto represents and warrants to the other that they have not heretofore assigned, hypothecated or transferred or purported to assign, hypothecate or transfer, in whole or in part, to any person, firm entity, or corporation any claim, demand, right, damage, liability, debt, account, action cause of action, or any other matter herein released or discharged, and that they respectively have the full right and authority to enter into this Agreement. The parties hereto agree to indemnify and hold one another harmless against any claim, demand, right, damage, debt, liability, account, action, cause of action, cost or expense, including attorneys' fees actually paid or incurred, arising out of or in connection with any such transfer or assignment or any such purported or claimed transfer or assignment in violation of this representation and warranty. (b) Each party hereto represents and warrants to the other that they have the power, authority and ability to carry out the obligations assumed and promised hereunder, and is not presently aware of any pending event which would, or could, hamper, hinder, delay, or prevent the timely performance of said obligations. 7. Denial of Liability. The giving of the consideration specified herein affects the settlement of the matters released herein. Neitherthe giving of said consideration nor anything contained herein shall be construed as an admission by any party to this Settlement Agreement and Mutual Release or their heirs, assigns, successors, representatives, agents, officers, directors or shareholders, of the validity of the claims of any other party to this Settlement Agreement and Mutual Release. The parties hereto specifically disclaim any liability or responsibility to each other. 8. Bindincr Effect. This Agreement, and all covenants and releases set forth herein, shall be binding upon and shall inure to the benefit of the respective parties hereto, their legal successors, heirs, assigns, partners, representatives, executors, administrators, agents, attorneys, officers, directors and shareholders. 9. Choice of Law and Venue. This Agreement is executed and intended to be performed in the State of California and the laws of the State of California shall govern its interpretation and effect. The parties agree that all legal proceedings regarding this Agreement shall only be instituted in the U.S. District Court, Southern District of 5 '. California or the courts of the State of California for San Diego County, San Diego Judicial District. 10. Leqal Expenses. In the event any party to this Agreement commences any legal proceeding concerning any aspect of this Agreement, including but not limited to, the interpretation or enforcement of any of its provisions or based on an alleged dispute, breach, default, or misrepresentation in connection with any aspect or provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and all other cost and expenses incurred in connection with the action or proceeding, including without limitation, expert witness fees, court reporter fees and collection expenses, whether or not such action proceeds to judgment. The "prevailing party" means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment is rendered. If the court fails or refuses to make a determination of the prevailing party, the party who is awarded costs of suit shall also be deemed to be the prevailing party for purposes of awarding attorneys' fees. 11. Severability. Should any portion or clause of this Settlement Agreement and Mutual Release be found to be invalid, illegal, void, voidable or unenforceable for any reason whatsoever, this Settlement Agreement and Mutual Release shall be read as if it did not contain said portion or clause. The parties hereto intend for any such invalid portion or clause to be severable from the remainder. Any such clause or portion and its severance shall not affect the validity or effect of the remaining provisions of this Agreement. 12. CounterDarts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement. 13. Gender and Number. In this document, where the context so requires, the masculine, feminine or neuter gender shall be deemed to include each other, and the singular to include the plural. 14. Section Headinqs. The captions, subject, section and paragraph headings in this Agreement are included for convenience and reference only. 6 They do not form a part hereof, and do not in any way modify, interpret, or reflect the intent of the parties. Said headings shall not be used to construe or interpret any provision of this Agreement. 15. Riqht to Consult with Attorney, Terms UnUerstooU. The parties hereto acknowledge that each has read this Settlement Agreement and Mutual Release: that each fully understands his rights, privileges and duties under said Agreement; and that each enters into said Agreement freely and voluntarily. Each party further acknowledges that each has had the opportunity to consult with an attorney of his choice to explain the terms of this Agreement and the consequences of signing it. 16. Reliance on Own Judwent, No Representations. The parties hereby declare and represent that the full compensation for the damage sustained in connection with the aforementioned losses and claims is uncertain and indefinite, and that in making this release agreement it is understood and agreed that the parties rely wholly upon their own judgment, belief, knowledge as to the nature, extent and duration of said damages. The parties have not been influenced to any extent whatsoever in making this release by any representation or statement regarding said damages, or regarding any other matter, made by the person, persons or entities hereby released, or by any person or persons representing them. 17. Entire Acrreement. The undersigned each acknowledge and represent that no promise, representation, or inducement not contained in this Agreement, or any exhibit hereto, has been made to them and that this Agreement, together with any exhibits hereto, contains the entire understanding between the parties and contains all terms and conditions pertaining to the within compromise and settlement of the disputes referenced herein. No express or implied warranties, covenants or representations have been made concerning the subject matter of this Agreement unless expressly stated herein. Any prior written or oral negotiations not contained in this Agreement are of no force or effect whatsoever. In executing this Agreement, the parties have not and do not rely on any statements, inducements, promises, or representations made by the other party or their agents, representatives, or attorneys with regard to the subject matter, basis, or effect of this Agreement, except those specifically set forth in this Agreement. The undersigned further acknowledge that the terms of this Agreement are contractual and not a mere recital. 7 .. '. -. 18. Modifications. No change in, addition to, or erasure of a printed portion of this Agreement (except the filling in of specific blank spaces and lines) shall be valid or binding upon any party hereto and no verbal agreement of any nature relating to the subject matter of this Agreement or to any relationship between the parties will be considered valid or enforceable. This Agreement may not be superseded, modified or amended orally and no modification, waiver or amendment shall be valid unless in writing and signed by the party against whom the same is sought to be enforced. 19. No PresumPtion acrainst Draftinq Party. This Agreement and the provisions contained herein shall not be construed or interpreted for or against any party hereto because said party drafted or caused the party's legal representative to draft any of these provisions. This Agreement shall be construed without reference to the identity of the party or parties preparing the same, it being expressly understood and agreed that the parties hereto participated equally or had equal opportunity to participate in the drafting thereof. 20. Parties in Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or arising by reason of this Agreement on any persons other than the parties to it and their respective successors and permitted assignees. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third person to any party to this Agreement, nor shall any provision give any third person any right of subrogation or action over or against any party to this Agreement. 21. Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of any such provision, nor prevent such party thereafter from enforcing such provision or any other provision of this Agreement. The rights and remedies granted all parties herein are cumulative and the election of one right or remedy shall not constitute a waiver of such party's right to assert all other legal remedies available under this Agreement or otherwise provided by law. 22. Execution of Further Documents. Each party agrees, upon the demand of the other, to execute or deliver any instrument, furnish any information, or perform any other act reasonably necessary to carry out the 8 i; 4' provisions of this Agreement without undue delay or expense. In the event either party fails or refuses to comply with this paragraph, such party shall reimburse the other party for any expenses, including attorneys' fees and court costs, that as a result of this failure become reasonably necessary to carry out this Agreement, even if formal legal action is not commenced. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first indicated above. WINDSOR PROJECTS, INC. APPROVED AS TO FORM: SPARBER, FERGUSON, NAUMA", PONDER & RYAN John,&. 02rP4 Ponder, Attorneys or W 'dsor Projects, Inc. F DALEY & HEFT l qLCd2 s , e. a- Neal s. Meyers, At The City of Carlsba 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 91-6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED WINDSOR PROJECTS V. CITY OF CARLSBAD CASE NO. N41427 WHEREAS, on recommendation of the City Attorney the City Council of the City of Carlsbad, California has determined that a settlement in the case entitled Windsor Projects v. City of Carlsbad is in the public interest; and WHEREAS, no City funds will be appropriating to settle this lawsuit, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 3. That the City Council approves the settlement. 3. That the City Attorney is authorized to sign the Settlement Agreement and Mutual Release which is hereby approved. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 8th day of January , 1991, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Larson, Stanton and Nygaarc ATTEST : T. /A_- ASETHA L. RAUTENKRANZ, City Clgrk _- RELEASE OF AGREEMENT TO PAY PUBLIC FACILITIES FEES RECORDING REQUESTED BY AND RETURN TO: City Clerk City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 RECEIVED DEC 17’ 1990 NOTICE IS HEREBY GIVEN that the Agreement Between Owner, Developer and the City of Carlsbad For The Payment Of Public Facilities Fee entered into September 12, 1983 by and between the city of Carlsbad and McKellar Development of La Jolla and Genstar Development, Inc. (Broadmoor Homes Division) recorded October 28, 1983 as file no. 83-391118 of the official records of San Diego County, California and the Agreement To Pay Fees For Facilities And Improvements As Required By Growth Management System entered into on October 30, 1986 by and between the City of Carlsbad and Windsor Projects, Inc., recorded November 20, 1986 as file no. 86-537017 of the official records of San Diego County, California, is hereby released as the obligations under said agreements have been satisfied as they pertain to that certain real property located in the City of Carlsbad, County of San Diego, State of California, described as follows: PARCEL 1: Lots 104 through 110, 112 through 119 and 124 through 129, of Carlsbad Tract 77-2 Unit No. 4, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 10054, filed in the Office of the County Recorder of San Diego County, April 6, 1981. PARCEL 2: Lots 130 through 143, of Carlsbad Tract 77-2 Unit No. 5, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 10088, filed in the Office of the County Recorder of San Diego County, May 12, 1981. ATTEST: Approved as to Form: V C B