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HomeMy WebLinkAboutWatson, Renee R. & David M.; 2023-02-03;SETTLEMENT AGREEMENT, RELEASE AND COVENANT NOT TO SUE This Settlement Agreement, Release of Claims, and Covenant Not to Sue ("Agreement") is entered into on February 3., 2023 (the "Effective Date"), in Carlsbad, California, by and between the City of Carlsbad, a California charter city ("City"), and Renee R. Watson and David M. Watson ("Owners"). The City and Owners are referred to collectively in this Agreement as the "Settling Parties." RECITALS 1. WHEREAS, Renee R. Watson and David M. Watson reside at a single-family residence, located at 2715 York Road, Carlsbad, California 92010 ("Property"); and 2. WHEREAS, on April 22, 2022, the Property was flooded by raw sewage from a sewer line back-up; and 3. WHEREAS, the Owners submitted a Government Claim asserting the Property, and personal property inside the Property, were damaged as a result of the sewer line back- up; and 4. WHEREAS, the Owners further asserted they required and arranged alternative living accommodations for the Property to be cleaned; remediated, repaired and restored; and 5. WHEREAS, the Settling Parties wish to fully, finally, and completely resolve the dispute arising from all claimed damages related to the incident on April 22, 2022, and have reached an agreement resolving their differences; and 6. WHEREAS, the purpose of this Agreement is for the Settling Parties to obtain peace from litigation, provide for full and final settlement and compromise of all claims, disputes, damages, fees (including attorneys' fees), costs and expenses which could have been litigated and to discharge the City, as well as the City's officials (appointed and elected), officers, agents, employees, and insurers, from any and all liability for the claims, disputes, damages, fees (including attorneys' fees), costs, and expenses of the Owners concerning the claims desc ribed in this Agreement. AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement, the sufficiency of which each party acknowledges, the Settling Parties agree to settle their dispute regarding the above-referenced matters on the following terms: 1. RECITALS. All recitals are incorporated and made an integral part of this Agreement. 2. SETTLEMENT PAYMENT. Within fifteen business days of the Effective Date, the City shall pay to the Owners the total sum of Four Hundred Ninety Two Thousand Four Hundred Five Dollars and Forty Three Cents ($492,405.43), inclusive of any and all costs and attorneys' fees, in consideration for the release of all claims, further described below. Payment shal l be by way of check made out to "Renee R. Watson" and delivered to Renee R. Watson and David M. Watson at 1257 Magnolia Avenue, Page 1 of 5 Carlsbad, California 92008 via Federal Express with a delivery signature required. 3. RELEASE OF SPECIFIED CLAIMS. In consideration of payment of the total sum of Four Hundred Ninety Two Thousand Four Hundred Five Dollars and Forty Three Cents ($492,405.43), inclusive of any and all costs and attorneys' fees, Renee R. Watson and David M. Watson, their heirs, executors, administrators, successors and assigns, remise, release and forever discharge the City of Carlsbad as well as the City's officials (appointed and elected), officers, agents, employees, and insurers from all claims, damages, debts, demands, actions, causes of action, suits, dues, sums of money, accounts, reckonings, obligations, bills, bonds, specialties, covenants, contracts, controversies, agreements, promises, doings, omissions, variances, extents, executions, and liabilities, between Renee R. Watson and David M. Watson. The City especially is released from any claims of any nature which the Owners have or ever had because of the back-up of the sewer line into the Property, or for any other matter which the Owners now have or ever as of the Effective Date. To avoid all doubt, nothing in this or any other section of the Agreement is meant to affect Owners' rights to seek compensation from their insured, Liberty Mutual Insurance. 4. GENERAL RELEASE. In connection with the release set forth in Paragraphs 3 above, the Owners expressly waive all claims or rights pursuant to Section 1542 of the Civil Code of the State of California. The Owners have been advised of the existence of Section 1542 of the California Civil Code ("Section 1542"), which provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." Notwithstanding such provision, to the extent Section 1542 is applicable to this Agreement, the Owners knowingly and voluntarily waive the provisions of Section 1542 and acknowledge and agree that this waiver is an essential and material term of this Agreement and the settlement that led to it, and without such waiver the settlement would not have been entered. The Settling Parties represent that they have been advised by legal counsel, understand, and acknowledge the sign ificance and consequence of this specific Section 1542 waiver. 5. OBLIGATIONS. Upon execution of this Agreement, the Owners will become exclusively responsible for any repairs, improvements, or renovations to the Property, including any repair and replacement of personal property in the Property, and any related alternative living accommodations. Further, the Owners will be exclusively liable for Page 2 of 5 any outstanding, or not yet incurred, financial obligations to any third party who has worked, or will work, on the Property, or who has or who will repair or replace any personal property in the Property, or who has provided or will provide any related alternative living accommodations. If a third party other than Owner's insurance provider Liberty Mutual Insurance asserts a claim against the City for payment related to the Property, the personal property in the Property, or related alternative living accommodations, the Owners will indemnify, defend, and hold the City harmless from and against any and all costs and expenses arising from work completed on the Property, repair or replacement of personal property in the Property, or related alternative living accommodations. 6. COVENANT NOT TO SUE. Each Settling Party covenants and agrees that it will not sue or bring or assert any action, claim, or cause of action in any jurisdiction or forum against the other Settling Party asserting any claim re leased by this Agreement. 7. AFFIRMATIVE DEFENSE. Each Settling Party may plead this Agreement as a complete defense and total bar to any claim released by this Agreement, and, in such event, the Settling Party bringing such barred action, claim, or demand shall indemnify, defend, and hold the other party harmless from and against any and all costs and expenses arising from such action, including, but not limited to, attorneys' fees and expenses incurred in connection with the action. 8. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Settling Parties and their respective successors and permitted assigns provided, however, that no right, privilege, or obligation arising under this Agreement is assignable by any Settling Party without the prior written consent of the other Settling Party. 9. NOTICES. Other than the settlement check, any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed as shown below and will be effective upon receipt. City of Carlsbad Attn: City Attorney 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Renee R. Watson and David M. Watson 2715 York Road Carlsbad, CA 92010 10. VOLUNTARY AGREEMENT. The Settling Parties each represent and warrant to the other that they have read and understand this Agreement and that this Agreement is executed voluntarily and without duress or undue influence on the part of or on behalf of any other party. Page 3 of 5 11. LEGAL REPRESENTATION. Each Settling Party acknowledges that it has been represented by legal counsel in connection with this Agreement and the associated transactions. Any rule or law or any legal decision that would require the interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived by the Settling Parties. 12. AMENDMENT. This Agreement may be amended, modified, and supplemented only by a written instrument signed by each of the Settling Parties. 13. GOVERNING LAW AND VENUE. This Agreement and any dispute arising out of or relating to this Agreement shall be governed and construed in accordance with the laws of the State of California, including its statutes of limitation, without regard to otherwise applicable principles of conflicts of laws, whether of the State of California or any other jurisdiction. Any action at law or in equity brought by either of the Settling Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the Settling Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 14. SEVERABILITY AND WAIVER. The unenforceability, invalidity, or illegality of any provision{s) of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. Waiver by any Settling Party of any portion of this Agreement shall not constitute a waiver of any other portion of the Agreement. 15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and warranties made in this Agreement are deemed to survive the execution of this Agreement. 16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between and among the Parties pertaining to the subject matter and supersedes any and all prior or contemporaneous agreements, representations, promises, assurances, inducements, negotiations or understandings between the Settling Parties, if any, relative to settlement, release and/or the claims released. [Signatures on following page] Page 4 of 5 IN WITNESS WHEREOF, the Settling Parties have executed this Agreement as of the date first written above. Renee and David Watson By J j(J fi7WY7 DAVID M. WATSON Attest: APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney -s~r,utv City Attorney Page 5 of 5