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HomeMy WebLinkAbout1994-08-02; City Council; 12806; SettlementClw OF CARLSBAD - AGENM BILL APPROVAL OF SElTLEMENT AND RELEASE AGREEMENT BETWEEN THE CITY AND PAUL AND DIANE KRASNER AND TOM AND PENNY BREZA FOR PARTlALLY COLLAPSED WALL ALONG 5001 AND 5016 TIERRA DEL OR0 HTG. 8/2/94 CITY MG RECOMMENDED ACTION: 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 between Dr. and Mrs. Krasner, Mr. and Mrs. Breza and the City resulting from the partial collapse of the adobe wall on the easterly portion of the properties located at 5001 and 5016 Tierra Del Oro. Under the agreement, the Krasner's and Breza's agree to reconstruct the wall and replace damaged landscaping. The City agrees to pay the Krasners $2,799.94 for damages resulting from the collapse of the wall. The City agrees to pay the Krasners and the Brezas $42,944 as construction is completed for construction and related costs. The City Attorney and Community Development Director have reviewed and recommend approval of this agreement. FISCAL IMPACT The total cost of the settlement is $45,743.94. There are adequate funds available in the Liability Fund to cover the cost of this settlement. EXHIBITS 1. Agreement and Release AGREEMENT AND RELEASE This Agreement is entered into by and between CITY OF CARLSBAD (hereinafter "CITY") , and Paul Krasner and Diane Krasner and The Breza Trust Dated November 20, 1990, Thomas G. Breza, Trustee (hereinafter "RELEASORS") 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 partially collapsed adobe wall on the easterly portion of the County Assessois Parcel Numbers 210-020-21 and 210-020-23 located at 5001 and 5016 Tierra Del Oro, Carlsbad, California. In 1989 during the construction of Carlsbad Boulevard Improvements, Phase 11, property owners of said parcels requested that said adobe wall be extended to eight (8) feet. To accommodate this request, a change order was approved with a Permission For Right-Of- Entry Permit signed by the property owners. On November 14,1993, said wall partially collapsed resulting in property damage at 5001 Tierra Del Oro. RELEASORS contend that the CITY is responsible for said wall and property damage. In order to forever release any claims, demands, causes of action or otherwise, the parties agree as follows: RELEASORS do hereby agree to reconstruct said wall and replace damaged landscaping per the scope of work outlined in the Request for Proposal (Exhibit 1). RELEASORS shall begin or cause to begin the above-referenced construction within 90 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 two thousand seven hundred ninety nine dollars and ninety four cents ($2,799.94) to Paul Krasner and Diane Krasner within ten (10) working days of the date of the final execution of this Agreement and Release. 1 The City shall pay the sum of twenty seven thousand three hundred and twenty one dollars and sixty two cents ($27,321.62) to The Breza Trust Dated November 20, 1990, in the following installments: 1. Ten thousand nine hundred twenty eight dollars and sixty five cents ($10,928.65) within ten (10) working days of the date of the final execution of this Agreement and Release. ' 2. Eight thousand one hundred ninety six dollars and forty nine cents ($8,196.49) within ten (10) working days of the date the City verifies that the foundation is poured. 3. Eight thousand one hundred ninety six dollars and forty eight cents ($8,196.48) within ten (10) working days of 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 Thomas Breza or Penny Breza or designated contractor to verify completion of work under the above phases and, after said verification, will pay The Breza Trust Dated November 20, 1990 the appropriate installment within ten (10) business days thereafter. Said payments shall be made payable to The Breza Trust Dated November 20, 1990 and delivered to Thomas Breza and Penny Breza at 111 Twin Peaks Dr., Walnut Creek, CA 94595. The City shall pay the sum of fifteen thousand six hundred twenty two dollars and thirty eight cents ($15,622.38) to Paul Krasner and Diane Krasner in the following installments: 1. Six thousand two hundred forty eight dollars and ninety five cents ($6,248.95) within ten (10) working days of the date of the final execution of this Agreement and Release. 2. Four thousand six hundred eighty six dollars and seventy two cents ($4,686.72) within ten (10) working days of the date the City verifies that the foundation is poured. 3. Four thousand six hundred eighty six dollars and seventy one cents ($4,686.71) within ten (10) working days of the date the City makes its final inspection. 2 4 The City agrees to inspect the property within one (1) business day of receiving a request from Paul Krasner or Diane Krasner or designated contractor to verify completion of work under the above phases and, after said verification, will pay Paul Krasner and Diane Krasner the appropriate installment within ten (10) business days thereafter. Said payments shall be made payable to Paul Krasner and Diane Krasner and delivered to Paul Krasner and Diane Krasner at 16439 Harbour Lane, Huntington Beach, CA 92649. 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 fees, loss of earnings, loss of services, or special damages of any character, by reason of or growing out of this agreement, the collapse of said wall or construction. associated therewith. AS A FURTHER CONSIDERATION FOR THE MAKING OF THIS SETITEMENT AND PAYMENT, IT IS EXPRESSLY AGREED THAP 1. 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 therefore, as the result of the aforesaid accident, casualty or event, or the effects or consequences thereof. 3. The undersigned understand and agree 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 3 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." ' 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, re- construction of or existence of said wall 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, executors, administrators and assigns of the undersigned. FOR YOUR PROTECl'ION, 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. 4 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 ($lO,OOO), 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: Dated: 7 \VI\% PAUL KRASNER STATE OF CALIFORNIA ) ) ss. I \ /I nn e ~~,~~c. It mile //p,p, 1994, before me, On Tu/; p/7 , , personally appeared aul Kt-lSt74 P + _j),'c,n-~ - -Kpfi.;/Ie/- 3 to me on the basis of satisfactoj evidence) to be the persons owledged to me tha- executed the person to the W;% instrument capacity, and that on the instrument the person, WITNESS my hand and official seal. 5 THE BREZA TRUST DATED NOVEMBER 20, 1990 m THOMAS G. ~REZ&$R~REJEE STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. 1 On Tx t., &L / 5 / '?9V , 1994, before me, .K /*kf.- /A//& Y personally ap&ared/ X'tJ &e&n h A,~~~~Ae-c+ 9 -pe.wxd€phm-to.-m-me (or proved to me on the basis dsahsfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that@he executed the same in&?her authorized capacity, and that b@her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. .- WITNESS my hand and official seal. Notary Public CITY Dated: BY STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On 4, before me, /3LErm 1. ~CC T€n/X'/\'AJZ, personally appeared1 a. 9 personally known to me (orproved 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/!& executed 6 the same in his/ha 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. WITNESS my hand and official seal. 7 - ,- A REQUEST FOR PROPOSA - EXHIBIT 1 Please fill in all line items. Indicate N/C for NO CHARGE items. SITE ADDRESS: 5001 8 5016 TIERRA DEL OR0 , CARLSBAD, CALIFORNIA DEMOLITION: 1. 2. 3. 4. 5. 6. 7. Demo approximately 220 L.F. by 8 feet high (8x4~16) adobe wall Demo remainder of concrete footing at north end Demo 24W4"x 8' pilaster at north end Cut back Oleanders and Bougainvilleas for access Haul off debris to appropriate dump site Backfill and compact to 90% for new wall footing Do not demo large pilaster at south end PERMITS: 1. 2. 3. 4. 5. 6. 7. 8. Provide construction plan prepared by registered engineer Secure "NO FEE' building permit from City Secure right-of-way permit from City Secure traffic control plan from City Provide traffic control devices Provide all construction signage and barricades Provide proof of workman's comp and Contractors License Notify Dig Alert prior to construction CONSTRUCTION: 1. Build approximately 31 0 L.F. by 8 feet tall, 8x4~16 slump block, solid grout wall; a. Provide 2' slump cap b. Provide isolation joint from south pilaster c. Provide 24'k24" in-line pilasters at north end and at property corner d. Provide expansion joints at pilasters e. Price includes clean up LAN DSCAPl NG: 1. 2. b. Replace (9) 24" box Melaleuca Replace (IO) 5 gallon plants and shrubs Repair planter, benches, irrigation system, and/or plants as required at 5016 to return to pre-demolition condition 1 Owner's Initials TOTAL Dr. & Mrs. Krasner Mr. & Mrs. Breza