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HomeMy WebLinkAbout2007-02-06; City Council; 18878; Settlement of Las Brisas Pacificas Inc. ClaimsCITY OF CARLSBAD - AGENDA BILL AB# 18.878 MTG. 2/6/07 DEPT. CA REPORTING OUT THE TERMS AND rviA/n/T/nA/ti DP TUP fZizMEDAt OKI GA^IZ\j\jtvLJi i /uivo \Ji 1 nc oc'vcrirU. r\ci.crioc AND SETTLEMENT OF THE LAS BRISAS PAC1FICAS, INC. CLAIMS DEPT. HEAD CITYATTY. <£^ CITYMGR. <~T2T> RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: The Council met in dosed session on November 7,2006 and approved the General Release and Settlement Agreement. Las Brisas Pacificas, Inc. filed two claims against the City on March 23, 2004 and March 28, 2006 alleging that a City-owned water main break caused slope subsidence, earth movement, landslide, and property damage at and around the residences and common areas comprising Las Brisas Pacificas, 2010 West San Marcos boulevard, San Marcos, California. This item satisfies the Brown Act requirement to report the approval of the Agreements in a prior closed session. FISCAL IMPACT: The City will pay the sum of $90,306.50 in full and complete satisfaction of the claims. EXHIBITS: 1. General Release and Settlement Agreement DEPARTMENT CONTACT: Ron Ball 760-434-2891 rbalKS.ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED D DENIED O CONTINUED O WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D / *sRe: Claims of Las Brisas Pacificas, Inc. against City of Carlsbad GENERAL RELEASE AND SETTLEMENT AGREEMENT This general release and settlement agreement [hereinafter "Agreement"] is entered into by and on behalf of LAS BRISAS PACIFICAS, INC. and their agents, partners (limited or general), attorneys, servants, employees, representatives, and successors in interest [hereinafter "CLAIMANT"], and the CITY OF CARLSBAD, and its agents, officers, attorneys, servants, representatives, employees, predecessors, or successors in interest, [hereinafter collectively referred to as "CITY"] concerning the water main break/slope subsidence/earth movement/landslide/property damage at and around the residences and common areas comprising Las Brisas Pacificas around 2010 West San Marcos Boulevard, San Marcos, California, which occurred on various dates in March of 2004 and September 2005, and continues, and which is the subject of two claims filed with CITY, received by CITY on March 23, 2004 and March 28, 2006, respectively (both of which are hereinafter referred to as THE CLAIMS"). CLAIMANT and CITY are hereinafter collectively referred to as the "Parties," with respect to the litigation and claims described below. This Agreement is meant to resolve all issues which were raised in THE CLAIMS, and any damages and/or injuries to CLAIMANT arising from, flowing from or caused by or. connected to in any way from the events, conditions, and occurrences described in THE CLAIMS. The Parties Represent as Follows: (a) That each expressly has the authority to execute this Agreement, and that this Agreement as so executed will be binding upon the Parties; and (b) That the representations set forth above shall endure forever and shall survive the execution of this Agreement. 1. INTRODUCTION THE CLAIMS describe certain alleged CITY water main breaks, slope subsidence, earth movement, and various land, property and fixture damages, repairs, investigation and remediation costs, consultant costs, contractor costs, and other damages and injuries allegedly suffered by CLAIMANT associated with, and caused by, those events and conditions. CLAIMANT alleges that all injuries and damages described in THE CLAIMS were due in part to a break, or breaks, associated with a CITY-owned and maintained water main. The Parties desire to enter into this Agreement in order to achieve a full settlement and discharge of all claims of damages and any alleged taking between the Parties which have arisen, may arise and/or could arise, out of the occurrences described in THE CLAIMS, and arising out of future damages and/or injuries arising from, connected with, and/or caused in any way by the occurrences described in THE CLAIMS, upon the terms and conditions set forth herein. 2. CONSIDERATION CITY shall pay CLAIMANT the sum of $90,306.50 in full and complete satisfaction of THE CLAIMS. 3. CLAIMANT'S RELEASE In consideration of the consideration referred to above, CLAIMANT hereby fully and forever completely releases, acquits and discharges the CITY from any and all claims, demands, damages, takings, consultant fees, contractor costs, attorneys' fees, and rights which arise from, or are directly or indirectly related to, or are connected with, or caused in part or in whole by, any water damage, earth movement or subsidence in the past, continuing or occurring in the future, at and around the Las Brisas Pacificas residential community, based upon, but not necessarily limited to, theories of inverse condemnation, nuisance, trespass, and dangerous condition of public property. This release does not extend to future acts or omissions of CITY which result in damage to CLAIMANT unrelated to occurrences already described in THE CLAIMS. 4. WAIVER OF SECTION 1542 There is a risk that, after the execution of this Agreement, CLAIMANT'S property, as described in THE CLAIMS, and/or the structures, slopes, fixtures, appurtenances and common areas thereon, will manifest new and continuing damage resulting from the occurrences described in THE CLAIMS, the scope, location, duration, and character of which is not fully known and/or not fully stabilized at the time this Agreement is signed. There is a risk that the damage resulting from the occurrences described in THE CLAIMS of which CLAIMANT, its attorneys and their experts and consultants presently are aware may become more serious, or otherwise increase in magnitude (qualitatively and/or quantitatively). CLAIMANT shall, and does hereby, assume the above-mentioned risks. These releases are expressly intended to cover and include all future damages, defects and discoveries, including all rights and causes of action arising under any legal theory against the CITY therefrom. The CLAIMANT is aware, and has been advised by its attorneys and/or advisors, of the provisions of California Civil Code section 1542, which provides: 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. The CLAIMANT hereby expressly waives the provisions of said section 1542 as to all matters within the scope of the claims released hereby. 5. ASSUMPTION OF RISK The Parties fully understand and declare that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, each party assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. The Parties represent and covenant that they are fully informed regarding all facts related to this Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. 6. NO PRIOR ASSIGNMENT OR TRANSFER Each party to this Agreement represents and warrants there has been no assignment or other transfer or any claims, causes of action or ownership rights of any of the subject properties. 7. COMPROMISE AGREEMENT This settlement is entered into for purposes of compromise and is subject to Evidence Code section 1152. 8. MISCELLANEOUS PROVISIONS 8.1 Entire Agreement: This Agreement constitutes the full and entire Agreement between the Parties hereto and such Parties acknowledge that there is no other Agreement, oral and/or written, between the Parties hereto. 8.2 Authority to Enter Agreement: This Agreement is the result of arms-length negotiations. Each party to this Agreement represents and warrants to the others that the persons executing this Agreement on behalf of such party are duly and fully authorized to do so, that each party, where applicable, is acting pursuant to the power and authority granted by their respective Partnership agreements, Articles of Incorporation, statutes, ordinances or other incorporating documents, and that no further approvals are required to be obtained from any persons or entities. 8.3 Final Agreement: The Parties to this Agreement and each of them, acknowledge that (1) this Agreement and its reduction to final form is the result of extensive good faith negotiations between the Parties and/or through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by said Parties, or any of them; and (3) any statute or rule of construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. 5 8.4 Binding Agreement: This Agreement is and shall be binding upon, shall run with the land and shall inure to the predecessors, subsidiaries, successors, subsequent purchasers, assigns, parties, agents officers, employees, associates, legal representatives, heirs, executives and/or administrators of each of the Parties hereto. 8.5 Interpretative Law: This Agreement is made and entered into in the State of California and shall, in all respects be interpreted, enforced and governed by and under the laws of the State of California. 8.6 Modifications: This Agreement may be amended or modified only by a writing signed by all Parties to this Agreement. 8.7 Paragraph Headings: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. 8.8 No Inducement: Each of the Parties to this Agreement warrants that no promise or inducement has been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. The Parties further represent they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and they have been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 8.9 Attorney's Fees and Costs in this Action: All Parties to this Agreement agree to bear their own attorney's fees and costs incurred in connection with THE CLAIMS . CLAIMANT specifically releases the CITY from any attorney's fees and costs incurred in the investigation or presentation of THE CLAIMS on behalf of CLAIMANT, for its benefit or the benefit of others, including costs of past, continuing or future investigation. Should any action be necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney's, fees. 8.10 Counterparts: This Agreement may be executed in counter-parts with the same effect as if all original signatures were placed on one document, and all of which together shall be one and the same Agreement. 8.11 Effective Date: The Parties hereto deem this Agreement to be effective as of the date all signatures are obtained. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date affixed by their signature. DATED: /2 ~/2 DATED: APPROVED AS TO FORM AND CONTENT: DATED: DATED: CITY OF CARLSBAD/ EPSTEN, GRINNELL & HOWELL, APC BY: JOlrf/EPSTEN, ESQ. Attorneys for CLAIMANT LAS BRISAS PACIFICAS, INC. RONALD BALL, ESQ. . CITY ATTORNEY f*41 i/o 4 CITY OF CARLSBAD 7