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HomeMy WebLinkAbout1993-07-06; City Council; 12293; Settlement\, d @ Cly OF CARLSBAD - AGEt-A BILL A/' '''a IIITG. 7/6/93 IEPT. CA TITLE: APPROVAL OF SETTLEMENT AND RELEASE AGREEMENT BETWEEN THE CITY AND CITY ATT OF SECOND STORY GUEST HOUSE LOCATED GEORGE AWAD AND ADA AWAD FOR REMOVAL ClTy MGR It is recommended that the Council approve the Agreement and Release and authorize the Mayor to execute it. ITEM EXPLANATION The proposed Agreement and Release settles all disputes betweenMr. and Mrs. Awad and the City resulting from the issuance of a building permit and construction of a two story guest house located at 5480 Carlsbad Boulevard. Under the agreement, the Awads agree to remove the second story of the guest house to a maximum height of 12'6I1. Construction will be commenced within 30 days after approval of the agreement and completed within 120 days thereafter. The City agrees to pay the Awads a total of $49,813 as construction is completed which represents the actual construction and related costs. The City Attorney and Community Development Director have reviewed and recommend approval of this agreement. FISCAL IMPACT The City agrees to pay a total of $49,813 under the agreement and avoids further expenditures of staff time and proceeding with nuisance abatement hearings or litigation. EXHIBIT Agreement and Release AGREEMENT AND RELEASE This Agreement is entered into by and between CITY OF CARLSBAD (hereinafter tlCITY1l) and GEORGE AWAD and AIDA AWAD (hereinafter llRELEASORS1f) with reference to the following facts: This agreement is made in order to settle all disputes, controversies and claims between the parties hereto with reference to the two story guest structure constructed and presently existing on the northeasterly portion of the County Assessor's Parcel Number 210-115-11 located at 5480 Carlsbad Boulevard, Carlsbad, California. RELEASORS have constructed a two story guest house on said real property which is the subject of controversy and disagreement resolved herein. The CITY contends that said guest house was constructed in violation of its laws and RELEASORS contend that they have received all necessary and proper permits. In order to resolve this dispute and to forever release any claims, demands, causes of action, or otherwise, the parties agree as follows: RELEASORS do hereby agree to remove the second story of said structure located on the northeasterly portion of the County Assessor's Parcel Number 210-115-11 located at 5480 Carlsbad Boulevard, Carlsbad, California. The remaining structure after said removal of the second story shall have a maximum height of 12'6" (twelve feet six inches). The maximum height shall be measured in accordance with the Carlsbad Municipal Code s21.04.065. RELEASORS shall begin or cause to begin the above-referenced l. removal and reconstruction within 30 days of the execution of this agreement and it shall be diligently pursued to completion within 120 days thereafter. The CITY shall pay the sum of Forty-Nine Thousand Eight Hundred and Thirteen Dollars ($49,813.00) to RELEASORS in the following installments: 1. Twenty-Two Thousand Dollars ($22,000.00) will be paid to RELEASORS on the date of the final execution of this Agreement and Release; 2. Eight Thousand Dollars ($8,000.00) will be paid to RELEASORS on the date the roof, carpeting, plumbing and drywall of the second story of said structure are completely removed; 3. Eight Thousand Dollars ($8,000.00) will be paid to RELEASORS on the date the second story walls of said structure are completely removed; 4. Five Thousand Dollars ($5,000.00) will be paid to RELEASORS on the date the new roof is completely installed on said structure; and 5. Six Thousand Eight Hundred and Thirteen Dollars ($6,813.00) will be paid to RELEASORS on the date the CITY makes its final inspection. The City agrees to inspect the property within one (1) business day of receiving a request from AWAD to verify that the above-described phases 2 through 6 have been completed and, after said verification, will pay AWAD the appropriate installment within ten (10) business days thereafter. Said payments shall be made 2 payable to GEORGE AWAD and delivered to him, care of R. THOMAS WOOD, 325 Carlsbad Village Drive, Suite E-2, Carlsbad, CA 92008- 2928. The CITY agrees that, provided such structure complies with . the above, a final inspection and building permit shall be issued to RELEASORS at no additional cost. RELEASORS do hereby acknowledge full satisfaction and payment of each and every claim or demand of whatever kind or nature that now exists or may hereafter accrue on behalf of them against the CITY, its agents and servants, or any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, charged with responsibility for or liable directly, indirectly or vicariously for damages and injuries to RELEASORS, alleged to have arisen or resulted from any incident, casualty or event which has occurred or may occur as a result of the issuance of building permit No. CB 91-1302, in the City of Carlsbad, County of San Diego, State of California, and for which any damages for which the undersigned claims that the CITY, its agents and servants, at any time are or were legally liable in damages, which legal liability and damages are disputed and denied. The RELEASORS do hereby release and discharge the CITY, its agents and servants, and any other person or persons, firm, corporation, association, partnership or other entity acting on their behalf, of and from each and every claim and/or demand of whatsoever kind or nature, arising or to arise in favor of RELEASORS, including all claims for damages to property, attorney’s 3 fees, loss of earnings, loss of services, or special damages of any character, by reason of or growing out of this agreement, the issuance of said building permit or construction associated therewith. AS A FURTHER CONSIDERATION FOR THE MAKING OF THIS SETTLEMENT AND PAYMENT, IT IS EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and final settlement shall never be treated as an admission of liability or responsibility at any time or in any manner whatsoever on the part of the parties herein released. 2. This agreement and release is expressly intended to cover and include all claims and attorney's fees, several or otherwise, past, present or future, which can or may ever be asserted by heirs, or otherwise, including all causes of action therefor, as the result of 'the aforesaid accident, casualty or event, or the effects or consequences thereof. 3. The undersigned understand and agrees that this is a full and final release and that this agreement and release covers and includes all claims and attorney's fees of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claims under Section 1542, Civil Code of California, are hereby expressly waived. The undersigned understand said Section 1542 provides: "A general release does not extend to claims which the creditor does not know or expect 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. It 4 4. The undersigned will indemnify and save' harmless said CITY of Carlsbad and persons above named, its agents, and servants, and any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and from any and. every claim and/or demand of every kind or character, including all causes of action therefor, which can or may ever be asserted by reason of injury to the undersigned as the result of the aforesaid construction, removal or existence or the said guest house or as a result of this settlement. 5. The undersigned shall be considered to have agreed to all the terms of this agreement and release and that the above- mentioned sum is the entire and only consideration for this agreement and release. 6. This agreement and release shall bind and be binding upon the heirs, &xecutors, administrators and assigns of the undersigned. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS FORM: Among other things, Insurance Code Section 556 provides: (a) It is unlawful to: 1. Knowingly present to or cause to be presented any false or fraudulent claim for the payment of a loss under a contract of insurance. 2. Knowingly file multiple claims for the same loss or injury with more than one insurer with an intent to defraud the insurer. 5 3. Knowingly prepare, make or subscribe any writing, with the intent to present or use the same or to allow it to be presented or used in support of any such claim. (b) Every person who violates any provision of this section is punishable by imprisonment in the State Prison, for two, three, or four years, or by fine not exceeding Ten Thousand Dollars ($10,000.00), or both. The undersigned do hereby authorize and direct that payment of said sum be made by check or draft payable to the undersigned. IN WITNESS WHEREOF, the undersigned do hereunto set their hand and seal this day of June, 1993. -lLd?Yp A.4 GEORGE AWAD / &fed AIDA AWAD STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On June 3 , 1993, before me, L. TRO~AS /'no~ - I personally known to me (or proved- to me on. the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. personally appeared Ggofl CL G, A wm + &rDn L. Rum I WITNESS my hand and official seal. a2-;aLJA Notary Public I represent RELEASORS in this matter and I have read the 6 foregoing "Agreement and Release" and have recommended that my clients execute it. STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. 1 0 I-%& , 1993, before me, Randee Harlib I personally appeared Claude A. Lewis I m&denc@ to be the person whose name is subscribed to the within instrument and acknowledged to me that he/* executed the same in his/hexx authorized capacity, and that by his- signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. personally known to me (~x~x~~~xxBaxxnraxx~x~~x~ - xxsrf I represent CITY OF CARLSBAD in this matter and I have read the foregoing "Agreement and Releasell and have recommended that my clients execute it. n Dated: 0 7,/793 J2.k. RONALD R. BALL, v CARLSBAD CITY ATTORNEY c:\realest\awadset.agr 7