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Home My WebLink About2008-01-15; City Council; 19285; Reporting Out the Terms & Conditions of the General Release and Settlement Pacific Bell V. City of Carlsbad, CMWD, La Costa de Marbella HOACITY OF CARLSBAD - AGENDA BILL 19,285AB# MTG. 1/15/08 DEPT. CA REPORTING OUT THE TERMS AND CONDITIONS OF THE GENERAL RELEASE AND SETTLEMENT REGARDING PACIFIC BELL V. CITY OF CARLSBAD, CMWD, LA COSTA DE MARBELLA HOA DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: The parties have now settled this claim under the authority given to the City Attorney by the City Council at its closed session meeting of October 16, 2007. This item satisfies the Brown Act requirement to report the fact of a settlement of a claim approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. The General Release and Settlement of Claims is attached. FISCAL IMPACT: The settlement amount is $99,000. EXHIBITS: 1. General Release and Settlement DEPARTMENT CONTACT: Ronald R. Ball, (760) 434-2891 rball@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED tf-8n Dn CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN COUNCIL DIRECTED THE CITY ATTORNEY AND STAFF ON THE MATTER D Dn JAN-03-2008 THU 12:01 PM CITY OF CARLSBAD Risk De DEC. 13, 2007 1:59PMWHWTXf> GRAND PROFESSIONAL FAX NO, 1760 602 8555 NO, 394 P. 01 P. 3 IJ.O At- EELEASfc OP CLAIMS P; idfio Sf& Tdqphone Company ("Pacific Boll) is a utillcy that ovwi* certain telephone eqidpmei it ID the vicinity of the La Costa de MarbeJh condominium o>veto.mnwiT Irwtwi at 3401A t£ roufth 2433DLaCo$taAvenxwin tha Chyofftm-towd /"™imv rf*** ni « «• «tflc Boll la aware of and ftdcuuwkdgea die following: A|. A landslide occurred in or about 2005 which damaged condominium units and common area within the La Costa, de Marbella development, and damaged public :;,' improvements located on the property of ta Costa de Marbella and within the \. right of i»*y for La Costa Avenue directly adjacent 10 the La Costa de Marbella i- development. B D. £. _t ir. contends that the landslide resulted in, among other thmga, ttama..^ to and destruction ofks telephone equipment bowed vvlthin and adjacent TO the La, Costa deMaltella development. Pacific B«U contends th&i it TO9 required to relocate, repair and/or replace portions ofiu telephone t^oipmcm an a result of the damage caused by the landslide. Pacific Bell ha« sued the City of Cartsbad C'city") »nd the Carlsbad Municipal Water Dlscrict ("CMWD") nsaertLig a uuiete of action based on the legal theory of inverse covideauuJton. In the sameUwsuit, Pacific Udl ba< also suud the U. Costa d« Martffilla HoroeoMvaerB1 AssociAtktn Thfi IAWSUIS « defiifixaw) »/toe{(9<?J?«*// Telephone Cvtnpany v. City of Carlsbad, tst al., San Diego Superior Court Cute No. 37-2GQ7-00051729-CU'PaNC (rcfemjd TO herein & the "Lawsuit"). In the Lawsuit against the City and CMWD, Pacific Sell alleges that the water tytitan ar t* Costa de Marbeia, <x\va*J by CMWD, was e substantial factor iu causing the landslide, reBuMng in damage 10 Pacific Bell's telephone equipment which constituted A taking of Pacific Bell's zelephona equJpmeat pursuant w Article J Sectioa 19 of ih« CaHfcniia Constitution. Pacific Bell alleges, among other tilings, that the pipwt couplbgs, o-rb§j, valv« wd other dements of the water sysrctn w^* tJcsiKned, constructed, maintained, inspected, repaired, owned and operated by the City and/or CMWD in such a manner as to cause one or more water lealrs at ta Cost* & M&rbell*. Pacific B«D tllogcp that th« wiicj- kato were a substantial factor in causing the landslide and resulting damage to the telephone equipment owned by Pacific Bell The City and CMWD deny the material allegations of the Lawsuit, Without fidmiiaoo of HafcUity, Pacific Bell and lb« City and CMWt? have agreec) to settle the Lawsuit. 20 Page 1 of 3 pin BEST ORIGINAL JAN-03-2008 THU 12:01 PM CITY OF CARLSBAD Risk De .DEC, 13,200? 1:5Wl GRAND PROFESSIONAL FAX NO. 1760 602 8555 NO. 394 P. 4 P. 02 Jr. (399,000; tedircdcnrkin for payment to Pacific Dell of the sum of Ninety-Nine Ttunwaiul Dollars t>0), BUS fiall compensation for (a) the alleged physical taking of and/or damage to Pacific Ball's tetojphone equipment; (bl the loss or impairment of Pacific Ball's telephone equipment; (c) Pacific Bill's financial loss; (d) Pacific Bell's cost* and attorney feesj and (e) all other toss, known and/or udbown, as Pacific Bell may hive sostaihfcd, .Pacific Bell, for Iwelf and on behalf of Its legal representatives and assigns, does hereby release and forever discharge the City and CMWD, mchicfinglkhdr employees, agents, council members, directors, «nd officers (the "Related Pirti«")Iof wA from any and all ckumo, action*, causes or action of nay kind or nature at law or in equity (including without limitation claims based on theories of inverse condemnation. . nuisance, dangerous condition of public property, bioetti ofmanditory duty, and all other !eg.j! Theories), demands, rights damages, losses, costs, anorneys* fees, Toss of profits, dimirdsheji value, expenses, and compensation whatsoever, which Pacific Bell now has or which may herepor accrue, on account of any and all known and imkoo%vn and foreseen and unforeiecn acts, omi:ioAs, conditions, occurrewea* imcidwns, acddentE and matters pertaining to the The landslide at La Costa, de Marhella that wan discovered Sn, or nboui February and/or March 2005; The water leak in B lateral pipe rurwing from the water main TO the fire hydrant at or near 2407C La Costa Avenue that was reponed TO the Cby/CMWD on or about March 1, 2005 and repaired by the City/CMWD on March 2, 200S; The water leak in the 6 inch water tnak near 2407 A La Costa Avenue reported to the Cfty/CMWD and repaired by ihc City/CMWD on or about March 1 1 , 2005, including wuhoui linirtBrion.all actions taken by ihe City/CMWD with reject to dischareing and recharging the water main on March 11, 2005: and All matters that are the subject of the Lawsuit in ca w number 37-2007-0005 1729- CIT-PO-NC, Clcil LIL tljc Sou Dlegu County Suporiur Cuiul, CcuUd Divblufi, us they relate to claims against tKe City and/or CMWD, T je aforfTnentioned p»ymi?nT shall b« wu»d?tn Panific ftall following the execution of this Vfldfr Rrtll Thi* R*ili3»Sr) nf naimi: *h»M h* «ff«rtivfc upnn PftoifiC BeH'x receipt ot the setilement tunds described above.f, C in«in-f,ntly -uvnli the er«vtion of iMt Rdeace, Pacific Bell shall txecuti uvd deliver TO couustl fi ir the Giy and CMWD a ftaqucsL for DisDisav! on the appropriate court form, } the L»\vsuit with prejudice as against the Cit>' and CM\VD as to aJl causes of action. C ilifomia Civil Cod« § 1542 provides as follow: A general release does not extend to claiois which the creditor does not know 10 nht in hi* or her favor »i the time gf executing the release, if known by him or her most have materially affected his or be/ tictp enc with the debtor, Page 2 of3 BEST ORIGINAL ee JAN-03-2008 THU 12:01 PM CITY OF CARLSBAD Risk De DEC. 13.2007 Dea la u/ 2;OOPM GRAND PROFESSIONAL FAX NO, 1760 602 8555 NO. 394 P, 03 P. 5, 1 adflc Bell hereby \vab« application of California Civil Code 5 1542 and acknowledges thai this means that if Pacific Bell should euffisr any Additional injuries, damages, or lossei aming out of H e landslide and wat w leaks referred to above tlw are the subject of the above referenced Lawsuit ;of which Pacific Bel! is DOT currently awsre and which if ICOOWD would materially affect Pacific I jell's decision to execute this release, Pacific Bell win not he able to nuke any claim for those inj jrics, damages ov losses against the Crty, CMWD, and/or their Related Panics, ( iftlifomia Code of Civil Procedure 5 1 016 which providac as follows: 1 1 any inverse condemnation proceeding, the court rendering judgment for the p bdroiff by ewudiiQi compensation, or ite attorney representing the pubfio entity v ho effects a settlement of ibct proceeding jshail determine and award or allow to tt & plaintiff! as & part, of that judgment or settlement, ft Hum llmt win, In the opinion o | the court, reimburse the plaintiffs reasonable costs, disbursements, and c: ipenses, including reasonable attorney, appraisal, and engineering fees, i'n curred because of chat proceeding In the trial court or in any appellate p; breeding hi wta'ch the piafotiffprcvails on uny issue in allowed t rcasooail cngineerit Uit Law* it. this Relea fees or oo (ft P; p'rficBeU acknowledge; that counsel for the City and CMWD Uve determined and ?ttc»fic Bell, as a pan of this settlement, a sum that vdU t«mxVur«« Pawfio Bdl'6 costs. ditbuisementE, and expeneee, inducing reasonable attoratey, appraisal, and cngineerit ig feea, actually incurred because of the inverse condemnation proceedings asserted in That man Is included In the sums to be paid by the Guy and CMWD as reflected in ie, and Pacific fid! shall have no right to recover any additional amount for attorney's incurred in oonnectiort with tlui muter, OUici U«m as recited above wttb respect to Code of C jvil Procedure § 1036, Pacific Bell shell bear its own attorney's fees and costs, ^signed tit plfc Bell hereDy represents and warrants (a) that Pacific Bell has not heretofore transferred any claims heron released; (b) that Pacific Bed has the requisite authority to enter Jn> this Release, (c) duit in execuriug ihb Release, Pacific »dl has had the opponimity to seek lei pi advice from die attorney ofTacific Bell's choice; (d) thai Pacific Bell fully underMMii fi the terms of ihis Release; one? (e) that Pacific Bell's execution of this Release a ,: jree and voluntary. Ex toned this Vffir dav ofT.tcfrh.Ap*. . 2QQ7 at rri i- iV ii /Ac£>kAp<. . 2007 at CMonih) (Place o/«pjing) ~^~~ PACIFIC BEIJJ-ELHPHQNE COMPANYrjf.,(/A Signature: Kame ntle: P«fie3<jf3 BEST ORIGINAL esssi