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Home My WebLink About39051; Dunn, James; 2004-0788494; Reimbursement Agreement/ReleaseI-I€-IC # 20044788494 RECORDMG REQUESTED BY WHEN RECORDED MAILTO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Please record this document at no fee as it is to the benetit of the '@ City of Carlsbad (Govt. Code 6 103). AUG 19,2004 9% AM OFFICIAL RECORDS SAN DIEGO CUUNTY RECORDER5 OFFICE GREGDRSJ SMITH, CUUNTY RECORDER PAGES FEES 0 00 8 SPACE ABOVE THIS LINE FOR RECORDER'S USE SETTLEMENT, RELEASE AND REIMBURSEMENT AGREEMENT FOR REMEDIAL GRADING AND ASSOCIATED COSTS AT LOCATED AT THE NORTHERLY TERMINUS OF HIGHLAND DRIVE IN THE CITY OF CARLSBAD ASSESSOR'S PARCEL NUMBER 156-051-24 Between CITY OF CARLSBAD, a Municipal Corporation AND MR. JAMES DUNN 1 SETTLEMENT, RELEASE AND REIMBURSEMENT AGREEMENT FOR REMEDIAL GRADING AND ASSOCIATED COSTS AT LOCATED AT THE NORTHERLY TERMINUS OF HIGHLAND DRIVE IN THE CITY OF CARLSBAD ASSESSOR’S PARCEL NUMBER 156-051-24 This Agreement for Settlement, Release and Reimbursement for Remedial Grading and associated costs for work at Assessor’s Parcel Number 156-051-24 in the City of Carlsbad (Grading) dated as of USt b ,2004 (“Agreement”), is made at the City of Carlsbad, San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation of the State of California (“City”) and MR. JAMES DUNN, a private citizen (“Developer”), collectively (“the Parties”), with reference to the following recitals: RECITALS A. B. C. D. E. F. G. H. I. J. Developer is in the process of developing that certain real property located in the City of Carlsbad, California generally shown on Exhibit “A”, attached hereto and made a part hereof, as a private single family residence at the north end of Highland Drive. Developer is the sole owner of property shown on Exhibit “A”, and represents there are no other owners or claimants. Developer filed separate applications for a Coastal Development Permit, and a Hillside Development Permit with respect to the proposed private residence Developer is building on Assessor’s Parcel Number 156-05 1-24. City is processing Coastal Development Permit (CDP 02-42), and Hillside Development Permit (02-10) for the Developer’s private residence. The City owns a compromised undersized storm drain, which runs through a portion of the Developer’s property, (“the Project Area”) as shown on Exhibit A. The Parties agree that the replacement of the City’s storm drain is of importance to both parties. The Developer is preparing grading plans for a proposed house and garage and the City has prepared plans to replace the existing storm drain that runs through a portion of the Developer’s property. The City is currently out to bid with Project No. 3905 1 to construct said storm drain. The proposed storm drain construction occupies a location different than the existing storm drain requiring a new storm drain easement to be dedicated to the City by the Developer and the City to quit claim the existing easement. The existing storm drain has failed creating damage to Developers property and requiring remedial grading within the easement owned by the City and the Developer’s property. The remedial grading is integral to project grading proposed by the Developer. Combined City remedial and Developer project grading is the most cost effective and 2 7 structurally sound basis of accomplishing the grading work. K. The parties wish to accomplish the grading work expeditiously and to resolve all outstanding claims associated with the failure of the storm drain. NOW, THEREFORE, the City and Developer agree as follows: Recitals. The Recitals are true and correct and incorporated herein by this reference. Reimbursable and Settlement Costs The “Grading”, which is the subject of this Agreement, is hereafter referred to as the “Reimbursable Work.“ The Reimbursable Work is shown on City Drawing Number 421-9A. The actual cost for the Reimbursable Work and cost associated with the settlement of any potential claims of damage shall be $197,000. Funds due under this agreement shall be disbursed in three (3) installments as follows: 0 $75,000 within 10 days after approval by the City Council of this Agreement and the signing of the new storm drain easement by the Developer referenced below. 0 $75,000 at completion of remedial grading as identified on the plans and accepted by the City Engineer. 0 $47,000 at Final acceptance of all project grading by the City Engineer. An existing 20-foot wide utility easement is held by the City for water systems, sewerage, drainage, power line, and excavation and embankment facilities across Developer’s property. City staff will recommend to the City Council that it quitclaim the existing easement in exchange for a new 20-foot wide easement and a 10-foot by 5-fOOt water meter easement from the Developer at the location set forth on Exhibit A, attached hereto. City will prepare the necessary documentation to effect the new proposed easements and quitclaiming of the existing easement, and all expenses for this easement preparation and quit claim work will be paid by the City. City and Developer have obtained or will obtain all required environmental and other necessary permits for the Reimbursable Work. Developer shall submit a grading plan to the City for the remediation of the ravine, which shall be included as part of Developer’s grading plans for his remaining property, prior to start of the work. City will pay the design engineer separately for the development of the grading plan for the remediation of the ravine. Developer shall submit a letter to the City prior to start of grading work that he concurs with the City’s decision on the need to perform grading work for remediation of the ravine as soon as practical. Developer will be allowed to excavate additional areas in the ravine to remove any unsafe areas and to adequately bench and provide keyways for placement of compacted fill. Developer shall be allowed to proceed with grading work for remediation of the ravine prior to obtaining a City approved grading plan, but shall not complete grading work prior to the issuance 3 of grading permit. Any grading work for construction of a house or garage on Developers' property shall not be initiated until a grading permit is issued by the City for this work. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to initially resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the Developer or the Director. A copy of such documented dispute shall be forwarded to the other party involved along with proposed methods of resolution that would be of benefit to both parties. The Director, or Developer upon receipt, shall reply to the letter, including a proposed method of resolution within fifteen (1 5) days. If the proposed resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager as soon as practicable. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the Parties for purposes of processing any Reimbursement Requests, provided however, nothing in this Agreement shall prohibit the parties from seeking remedies available to them at law or equity. The Developer represents that he is the only person entitled to reimbursement under the agreement and agrees to hold harmless and defend City against all conflicting claims, if any, occurring under or out of this agreement. Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due hereunder without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as specified herein. Notices required to be given to Developer shall be addressed as follows: MR. JAMES DU" Villa Real Apartments #9 2701 Avenida De Anita Carlsbad, CA 92008-830 1 Telephone: (760) 845-4503 MICHAEL L. KLEIN, ESQ. Greenman, Lacy, Klein, O'Harra & Heffron P.O. Box 299 Oceanside, CA 92057 Oceanside, CA 92049-0299 Telephone: (760) 722-1234 Notices to City shall be delivered to the following: CITY OF CARLSBAD Engineering Department Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would 4 require any notice delivered hereunder to be directed to another address. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California and venue shall be in San Diego County, California. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. Amendment. This Agreement may be amended only by a written instrument executed by City and Developer. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the earlier of (i) the date the City fully pays Developer its Reimbursement Expenses, or (ii) January 1,2006. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity that is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. Indemnification. Developer shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless City, its officers, agents, and employees, against any challenges to the award of contract(s) for the Reimbursable Work to contractor(s). Defense costs include the cost of separate counsel for the City, if the City reasonably requests separate counsel, as well as the payment of any fines or judgments. Release. Provided the City makes all payments required herein, this agreement shall act as a full and complete release against the City, its officers, and employees from any and all liabilities, costs, judgments or any kind of claim or demand of whatsoever kind or nature. This represents a full and fixed release and this release covers all claims and attorney’s fees of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claim under Civil Code Section 1542, which provides: “A general release does not extend to claims where the creditor does not know or suspect to exist in his favor at the time of creating the release, which if known by him must have materially affected his settlement with debtor.” This release shall bind and be binding upon the heirs, executors, administrators, and assigns of the parties. iff f/f 5 I. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. RLSBAD, a municipal ATTES~ W grginr4. Wood APPROVED AS TO FORM: 6 LOCATION MAP CITY OF CARLS8AD A?N 154-140-28 I I I i I I +------ JAMES DUM/ A?lY J56-051-24 \, EXISnNG 20' PUBLIC UTlLlTY *, EASEMENT PER FllE NO. 109622 REC. JUN€ 24, 1963 \ NOT TO SCALE I I I----- PROJECT NAME HlGHLAND DRlVE STORM DRAIN EXTENSION AW 8t SCOTT EVANS CARLSBAO ENMERIM MPT. 7/25/04 f2\CAPITM\pLUuIER~AMD SnWnr DRAlN\JOa51-ADW 7, --+-- I \ I II NUMBER -. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 24 State of California Countyof San Diego } ss. - On 7/29/04 , before me, Charlene Tavlor-Rlder. Nota, v , personally appeared James Dunn Date Name and Title of-Ofticer (e g., "Jane Doe, Nhary Public") * Name@) of Signer@) 0 personally known to me Ix1 proved to me on the basis of satisfactory evidence to be the person(@ whose name(@ iskite subscribed to the within instrument and acknowledged to me that heds;Mtkmyrexecuted the same in hishedhk authorized capacity-, and that by hishanWeiirc: signaturetsp on the instrument the person& or the entity upon behalf of which the person@ acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Settlement Release and Reimbursement Asreen; For Remedial Grading and Associated C8Ttzlat AgPJflp;P5gL-64 bW&FI1&6a6?:~-$95 DJ€i~t?Il!j Y Terminus of Numger of%!tes: Signer(s) Other Than Named Above: 't 4 None Capacity(ies) Claimed by Signer Signer's Name: James Dunn 8 Individual 0 Corporate Officer - Title(s): 0 Partner - 0 Limited C General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Self t S 0 1997 National Notary Association 9350 De Soto Ave PO Box 2402 * Chatsworth. CA 91313-2402 Prod No 5907 Reorder Call Toll-Free 1-800-876-6827 ~~ ~ ~ ~