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HomeMy WebLinkAboutReso 1986-12496 RESOLUTION NO. 12496 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS IN REGARD TO DEFERRAL AGREEMENT ON PROPERTY AT 172 "D" STREET AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, Resolution No. 6554, adopted by the City, authorized the deferral of the installation of certain public improvements on the property owned by Daniel H and Linda C. Josephson, and · WHEREAS, a disagreement arose between the City and the Josephsons as to the cost of said public improvements. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain settlement agreement and release of claims between THE CITY OF CHULA VISTA, a municipal corporation, and DANIEL H. AND LINDA C. JOSEPHSON, dated the 12th day of__June , 1986, a copy of which is attache~ hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista be, and she is hereby authorized to record said agreement in the office of the San Diego County Recorder. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by o~n P. Lippitt,!~irector of P~;olic Works/City Engineer ~"~m {~ " rney 1555a ADOPTED AND APPROVED BI.J THE ClTlJ COUNCIL OF THE CIT~J OF CHULA VISTA, CALZFORNIA this 2~Tth day of May 19 86 b~ ~hc ~ollowin~ vote, to-wit: A~5: Councilmem~er Cox, Malcolm, Moore, Campbell, McCandliss NA~: Counc ~ Imember None ABSTAIN: Councilmember ABSENT: Count i ~ member None :" ue~uf~ STATE OF CALIFORNIA ) COUNT~ OF SAN DIEGO ) CIT~ O~ CH~A VISTA ) Z, ADELE A. SARMZENTO, DEPUT~J CITy CLEP~K of the Cit9 of Chula Vista, California, DO HEREBy CERTiFy that the above and fore$oln$ is a full, true and COrrect copy of RESOLUTION NO. 12496 , and that the same DATED criY OF CHULA VISTA 3OP. D?G REQUESTED BY -. 19 863G 73 ~ ~. Fula~n C[~ ~ SETTLEMENT AG~EMENT :;~:, ~.~.~*~d :', P. O. Box 10~7 hula V~t~ ~o~a 9~12 AND RELEASE OF CLAIMS This Settlement Agreement and Release of Claims g ement is made and entered into as of this 12th day of ~une , 1986~ by and between the CITY OF CHULA VISTA, (hereinafter "City"), and DANIEL and LINDA JOSEPHSON, (hereinafter "Josephson"), and collec- tively referred to herein as the "parties", with reference to the following facts: A. Certain disputes have arisen between the parties with regards to a certain resolution adopted by the City on or about August 8, 1972. This resolution, specifically referred to as Resolution No. 6554, indicated that the City had agreed and authorized a delay in the installation of certain improvements on the real property located at 172 D Street, Chula Vista, California, owned by Josephson. Josephson agreed to install or construct the ~mprovements within thirty (30) days of written notice from the Planning Commission to install same · A lien the amount of $1,900 was recorded against the real property. This dispute involves the cost of said improvements The City contended that Josephson was liable and responsible for the total costs to install said improvements. Josephson contended that the cost of said improvements were limited to the' sum of $1,900. JOSephson further contended that the City had neve~ acquired the easement rights to take Josephson's property for the purpose of making or installing said improvements. RELE; JOSEP1.1 -1- B. The parties believe it to be in their respective best interests to settle all disputes among themselves at this time, and therefore are willing to enter into this Agreement. c. In reliance on the foregoing and on the mutual covenants set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Consideration (a) Josephson will pay to the City the sum of $5,000, receipt which is hereby acknowledged. Josephson will also execute and deed over to the City and "Easement for Street Purposes", a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. (b) Pursuant to this Agreement, the City will construct and install, at its expense, all improvements designated in the Deferal Agreement dated August 8, 1972, a copy of which is attached hereto as Exhibit "B" and incorporated herein by reference. Further, the City will immediately remove the lien secured against the real property, subject of said Deferal Agreement. 2. Mutua~ Release (a) In consideration of the mutual agreements hereinabove stated, City does hereby forever release and discharge Josephson and any aad all of their agents, servants, employees, executors, administrators, sUccessors and assigns, jointly and severally, -2- "'" ' 0oo from any and all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorney,s fees and damages of whatsoever character, nature and kind, in law or in equity, past, present, known and unknown, suspected or unsuspected, from the beginning of time to the date hereof, including but not limited to any claims which were stated, claimed or alleged by the City in any of the pleadings, records or other papers on file in the pending matter, or which could have been raised in said pending matter, or which may be based upon or con- nected with any of the matters relating thereto, save and excepting only the obligations and liabilities created and pre- served by this Agreement. (b) In consideration of the mutual agreements hereinabove stated, Josephson does hereby forever release and discharge the City, and any and all of its agents, servants, and employees, jointly and Severally, from any and all claims, demands, contro- versies, actions, causes of action, obligations, liabilities, costs, expenses, scs, attorney,s fees and damages of whatsoever character, nature and kind, in law or in equity, past, present or future, known and unknown, suspected or unsuspected, from the beginning of time to the date hereof, including but not limited to any claims which were stated, claimed or alleged by Josephson in any of the pleadings, records or other papers on file in the pending matter, or which could have been raised in said pending matter, or which may be based upon or connected with any of the -3- matters relating thereto, Save ~nd excepting only the obligations and liabilities created and preserved by this Agreement. 3. Disclaimer All of the parties hereto agree that the tender of con- sideration hereunder and the execution of this Agreement are part of a compromise and settlement, and shall at no time or for any purpose constitute or be construed as an admission of any liabi- lity by any party to any other party. 4. Waiver of Civil Code ~1542 It is the intention of the parties hereto that the foregoing release shall be effective as a bar to all actions, fees, damages, losses, claims, liabilities and demands of what- soever character, nature and kind, known or unknown, suspected or unsuspected, hereinabove Specified to be so barred. In furtherance of this intention, the parties hereto expressly waive any and all rights and benefits conferred upon them by the provi- sions of ~1542 of the California Civil Code, which are as follows: "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 BE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.,, The parties acknowledge that the foregoing waiver of the provisions of §1542 of the California Civil Code was separately -4- bargained for. The parties expressly consent that this Release shall be given full force and effect in accordance with each and all of its express terms and provisions, including those terms and provisions relating to unknown and unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action hereinabove specified. 5. ~itigatio~n All parties to this Agreement agree to forever refrain and forebear from commencing, instituting, maintaining or prosecuting any lawsuit, action, or other proceeding against the other parties based on or arising out of or in connection with any claim released or discharged hereunder. In the event of any litigation involving the provisions of this Agreement, the prevailing parties shall be entitled to reasonable attorneys, fees and costs. 6. No Assi n~nt The parties to this Agreement hereby warrant and represent that the parties have not heretofore assigned or transferred, or purported to have assigned or transferred to any person whom- soever, any matter, including Claims, released or covered by this Agreement or any part or portion thereof. Further, the parties hereto agree to indemnify and hold harmless the parties hereto from any claims resulting from any person or entity asserting any such Claim pursuant to any such assignment or transfer by the indemnifying party. ' 7. Representatio~ by Counsel Each party hereto acknowledges and warrants that such party has been represented by counsel of its own choice through out all negotiations which preceded the execution of this Agreement. Each party has read or had read to such party all of this Agreement and has had it satisfactorily explained to such party by counsel representing such party. Accordingly, each party is satisfied with the settlement contained herein and has signed the Agreement voluntarily. 8. Entire Agreement This Agreement contains the entire agreement and understanding concerning the subject matter hereof between the parties, and Supercedes and replaces all prior negotiations, pro- posed agreements and agreements, whether written or oral, express or implied, of any type whatsoever. Each of the parties hereto acknowledges that neither any other party hereto nor any agent or attorney of any other party whomsoever has made any promise, representation or warranty whatever, express or implied, not con- tained herein concerning the subject matter hereof to induce it to execute this Agreement, and acknowledges and warrants that this Agreement is not being executed by such party in reliance on any promise, representation or warranty not contained herein. 9. ~aw This Agreement shall in all respects be interpreted, enforced and governed by the laws of the State of California. 10. Authority. Each of the undersigned parties executing this Agreement on behalf of legal entities other than themselves hereby personally warrants by signing this Agreement that he or she is authorized to bind such entity in executing this Agreement, and is acting within the course and scope of that authority. CITY OF ~HULA V/~TA DANIEL JOSEP~N / ' NERA[ AOKNO%V[£DGM£NT State of (~ g ~../...,..., ~.... ' ' I Onthisthe j~ dayof "' ¢'/~ .... 19 ~'~,, before me, ~/ ' A " ss. County of -/ ~- ¢~. ,', ,~.~4- ? ~'b ;'~ .//,.- /2_/~L the undersigned Notary Public, personally appeared % OFFICI~'~¢[-,-S~,.~'~ [] personally known to me .. z; /- .... ~%~ ~ EDNA t,A STEIN ~ proved to me on the basis of satisfactory evidence '~ ~,'~.~7~ INOTAR*Y PUBLIC- CALIFORtNIA ' SAN DIEGO O0~JHl~f to be the person(s) whose name(s) .. subscribed to the ,,. w,th,, i.st,ume.,, and ac .owled.e, ,.a, WITNESS my hand and official seal Notary's Signature .-tach notary acknowledgement