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HomeMy WebLinkAboutItem 4.02 Slope Failure Crossridge . . . . CITY CLERK File # OI0J[Q][Q]-I3J[Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 17,1998 SUBJECT: Settlement of City's Claims Concerning Slope Failure Above Crossridge Road (Rafanelli & Nahas, et al) Report Prepared by: Elizabeth Silver, City Attorney ATTACHMENTS: rlProposed Settlement Agreement Staff recommends approval of the settlement agreement, with authorization for the Mayor to sign said agreement. RECOMMENDATION: FINANCIAL STATEMENT: The City is to receive $40,000 cash in exchange for the signing of the attached agreement. DESCRIPTION: In 1986, the real estate developer, Rafanelli & Nahas, constructed certain homes along Crossridge Road~ These homes were situated at the base of hills which form part of the City's Dougherty Hills Park. . During the heavy rains of 1995-96, a portion of the hillside slipped, causing property damage and the potential for further damage to some of the residences below on Crossridge Road. Because the City owned the area of affected hillside, the City was required to repair the slope. Since then, the City has been attempting to recover part of the cost of the slope repair from Rafanelli & Nahas. It has been the City's position that the grading methods this developer used when it built the houses contributed to the slope's instability. Staffhas been negotiating with representatives ofRafanelli & Nahas for several months. These negotiations have culminated in a proposed settlement agreement with that developer. Other parties to the agreement include the individuals Mark Rafanelli and Ronald Nahas, as well as the following firms: Ahmanson Developments, Inc.; Home Savings Bank; Kleinfelder, Inc.; and The Gregory Group. Under the terms of the proposed settlement, no party is required to admit responsibility for causing any of the conditions that produced the mudslides. The settlement calls for the developer and the other named parties to pay the City the sum of $40,000. COPIES TO: Rafanelli & Nahas 4.2 ITEM NO. g:\agenmisc\msettle.doc In exchange for this money, the City will agree to release the developers from any further claims . involving the hillside, and to protect the developer in the event that anyone else should make such claims. The protection would be in the form of a legal agreement (called an "indemnity agreement") that requires the City to defend any such future claim, without the developer's participation. It is Staffs view that the ~ity's part ofthe agreement is ,reasonable as the City owns the land within the Dougherty Hills Open Space and will be solely responsible for paying for any damage caused by future hillside failures. Hence, the City faces no additional costs by agreeing to "insure" the developers against future claims that concern a failure on the City's own property. Staff, therefore, recommends that the City Council approve the settlement agreement and authorize the Mayor to sign said agreement. . . Page 2 I -- . . . SETTLEMENT AGREEMENT AND RELEASE 1. RECITAL. This Settlement Agreerpent and Release is made and entered into by the parties hereto to fonnalize termination of any and all claims by the City of Dublin against parties involved in the design, development and construction of certain property in the City of Dublin. 2. THE PROPERTY. The "Property" is that Wlimproved and improved real estate in the City of Dublin, California, as more specifically described in Exhibit "A". 3. THE P ARTTES. The following are parties to this Agreement: (1) CITY OF DUBLIN (hereinafter referTed to as "CITY"); (2) RAF ANELLI & NAHAS, MARK RAF ANELLI, RONALD NAHAS (hereinafter collectively refeIred to as "RAF ANELLI"); (3) AHMANSON DEVELOP~1ENTS, INe., HOME SAVINGS BANK (hereinafter collectively referred to as "AHMANSON"); (4) KLEINFELDER, INe. (hereinafter referred to as "KLEINFELDER"); and (5) THE GREGORY GROUP (hereinafter referred to as "GREGORY"). 4. THE DISPUTE. The CITY has been involved in v~ous claims against RAF ANELLI, AHMANSON, GREGORY and/or KLEINFELDER, and wishes to resolve such claims and any claims that have arisen or could hereafter arise with respect to the Property, all of which claims, past and preserit,ar~ hereinafter referred to as "The Dispute", including, but not limited to: (a) any c1ai~ which has been made by the CITY or which could have been made by the CITY arising out of or connected with the Property; (h) any claim for costs incUlTed by the CITY for investigation of or repair of any probleITIs with soils, grading, swface drainage or subsurface drainage arising out of or connected with the Property; ( c) any claim arising out of or connected with RAF ANELLI, AHMANSON, GREGORY and/or KLEIN FELDER for any act or omission involving the Property; (d) any claim against any person or entity arising out of or connected . with the Property, including, but not limited to, the purchase, sale, planning, design, engineering, development, constluction; observation, inspection, testing, supervision, . recommendation, consultation, approval, perfonnance of services, repairs or maintenance performed, not perfonned or improperly perfOlmed, the design, specification, manufacture, distribution, sale or provision of any material component or system, alteration, modification, rehabilitation, renovation of the Property; (e) any claim arising out of or connected with errors, defects, statements, misrepresentations, breaches or duties, contracts or warranties, or other , actionable acts or omissions in connection with any of the above. 5. SETTLEMENT. The CITY des~e,s to resolve all aspects of the-Dispute and to release Releasees (as hereinafter defmed) from all liability known or unknown in connection with the Dispute. The CITY agrees that the settlement embodied in this -2- . . Agreement is made in good faith in that the Releasees that have made contributions have contributed a fair and appropriate amount to the settlement. 6. CONTRIBUTIONS. In consideration for the full and timely performance of the terms and conditions 9f this Agreement, and in full and [mal settlement of the Dispute, the parties have agreed to pay to the CITY FOliy- Thousand Dollars ($40,000.00), The parties' individual contributions are as follows: RAFANELLI $12,500.00 AH!'v1ANSON $12,500.00 KLEINFELDER $10,000.00 GREGORY $5,000.00 Settlement check(s) shall be made payable to "The City of Dublin". . 7. HANDLING OF FUNDS. The settlement check(s) shall be exchanged for a properly authorized and executed copy of this Settlement Agreement and Release from the CITY. 8. CITY'S RELEASE. In consideration for the full and timely performance of all tenns and conditions of this Agreement in the manner prescribed herein, CITY, on behalf of itself and on behalf of each of its respective administrators, beneficiaries, predecessors, successors, assigns, members, affiliated and related entities, agents, employees, servants, representatives, and all persons, fmns, associations and/or agencies connected with it, including without limitation its'~surers, sureties, attorneys and . ,. experts, (collectively, "Releasors") hereby release and forever discharge RAF ANELLI. . - 3 - AHMANSON. KLEINFELDER and GREGORY, and each of their respective heirs, . executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parents, subsidiaries, affiliated and related entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, finns, associations, and/or corporations connected with them, who are or may ever become liable to them, including without limitation, their insurers, sureties, attomeys, experts and all persons or entities involved with the planning, design, engineering, development, construction, inspection, testing or sale of the Property (collectively "Releasees"), of and from any and all claims, demands, causes of action, obligations, liabilities, damages, incidental, consequential, ensuing or resulting damages, liens, debts, losses, costs, attorneys' fees and expenses of evelY kind and nature \vhatsoever, kn:Jwn or unknown, fixed or contingent, including any third party claims and all rights to subrogation of any claim therefor, which any Releasor may now have or may hereafter have against any Releasee to this Agreement by reason of any matter, cause or thing arising out of and/or connected with this Dispute. 9. CONTRIBUTORS' J\1UTUAL RELEASE. In consideration for the full and timely perfonnance of all terms and conditions of this Agreement in the manner prescribed herein, RAF ANELLI, AHMANSON, KLEINFELDER and GREGORY, on behalf of themselves and on behalf of each of t~e~ respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, members, shareholders, partners, partnerships, parents, subsidiaries, affiliated and related -4- . . . entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, fums, associations and/or corporations connected with them, including without limitation their insurers, sureties, attorneys and experts, hereby release and forever discharge eac~ other, and each of their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parents, subsidiaries, affiliated and related entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations, and/or corporations connected with them, who are or may ever become liable to them, including without limitation, their insurers, sureties, attorneys, experts and all persons or entities involved with the planning, design, engineering, development, construction, inspection, . testing or sale of the Property, of and from any and all claims, demands, causes of action, obligations, liabilities, damages, incidental, consequential, ensuing or resulting damages, liens, debts, losses, costs, attorneys' fees and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, including any third party actions and all rights to subrogation therefor, as to any claim for which the CITY has provided an indemnity ill tl~is Agreement. This release does not release any other claim. 10. \V AIVER. CITY acknowledges that there is a risk that, subsequent to the executiorr of this Agreement, it may incur, suffer or sustain injUlY, loss, damage, costs, attorneys' fees, expenses, or any of these, whic~a,re in some way caused by and/or connected with the Dispute, the Releasees, or the subject of this Agreement, which are . Ullknown and unanticipated at the time this Agreement is signed, or which are not - 5 - presently capable of being ascertained. CITY further acknowledges that there is a risk . that such damages as are known may become more serious than she now expects or anticipates. Nevertheless, CITY acknowledges that this Agreement has been negotiated and agreed upon in light of those realizations and it hereby expressly waives all rights it may have in such unsuspected claims. In so doing, CITY has had the benefit of cOWlsel, has been advised of, understands and knowingly and specifically waives her rights under California Civil Code, ~ 1542, which provides 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 have materially affected his settlement with the debtor. 11. COVENANT NOT TO SUE. CITY covenants and agrees never to . commence and/or prosecute against Releasees any legal action and/or other proceeding based in whole or ill part upon the claims, demands, causes of action, obligations, damages and/or liabilities released in this Agreement. This Agreement mar be pled as a full and complete defense to any action or other proceeding, as a basis for abatement of, or injunction against such action. 12. INDEMNITY. CITY shall indemnify, hold hannless and defend RAF ANF;LLI, ~HMANSON, KLEINFELDER and GREGORY from and against all , claims, demands, cau~es of action, known or unknown, fixed or contingent, including any " and all rights to subrogation;, arising out of and/or connected with the following: (~,) the Dispute; . - 6- . (b) the status, capacity, standing, power and/or authority of the CITY to . make the claims, to enter into this Agreement, to compromise the Dispute which is the .. subject of this Agreement, and/or to release and indemnify Releasees. 13. WARRANTIES. CITY, on behalf of itself and 'all those defined herein as Releasors, make the following representations and warranties: (a) It has not sold, transferred, conveyed, assigned, hypothecated and/or subrogated any of the rights, claims or causes of action released herein; (b) It is authorized to enter into this Agreement; (c) It is unaware of any claims by any person or entity arising out of or connected with the claims released herein; . (d) It has had the opportunity to select and retain its own experts and consultants to inspect, analyze and advise it regarding the nature, extent and cause of the alleged problems which are the subject of the Dispute. In entering into tlus Agreement, CITY represents and warrants that it is not relying on any representations, opinions, conclusions, recommendations or estimates expressed by, provided by and/or inferred from any Releasee, any attorney for any Releasee or any of Releasees' experts or consultants. 14: CO:MPROl\1JSE. This Agreement is the result of a compromise between CITY, RAF ANELLI, AHMANSON, KLEINFELDER and GREGORY and shall never at . any time or for any purpose be considered as an admission of liability and/or . responsibility on the part of any party, nor shall the payment of any sum of money in - 7- consideration for the execution of this Agreement constitute or be construed as an admission of any liability whatsoever by any Releasee, each of whom continues to deny such liability and disclaim such responsibility. 15. . CONSTRUCTION OF AGREEl\1ENT. This Agreement is the product of negotiation and preparation by and among the parties. The parties acknowledge that they have had the opportunity to obtain legal advice regarding this Agreement. The parties herein expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by any par1icular person or entity, or its attomeys, and will be construed accordingly, 16. ENTIRE AGREEl\1ENT. This Agreement contains the entire Wlderstanding between the par1ies hereto with regard to the matters herein set forth. There are no representations, waITanties, agreements, an'angements, under1akings, oral or written, between the par1ies hereto relating to the subject matter of this Agreement which are not fully expressed herein. 17. GOVERNING LA'V. This Agreement shall be interpreted ill accordance with and govemed in all respects by the laws of the State of California. 18. ATTORNEYS' FEES. Each party shall bear its own attorneys' fees and costs. In the event any action is brought by any party to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that patty or those parties may be entitled. .' - 8 - . . . . 19. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of Releasors and Releasees and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, members, shareholders, paiiners, partnerships, parents, subsidiaries, affiliated and related entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, finns, associations and/or corporations connected with them, including without limitation their insurers, sureties, attomeys and experts. 20. SEVERABILITY. If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, the remainder of this Agreement shall not be . affected thereby and shall remain valid and fully enforceable. 21. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and immediately effective as of the date of the exchange of funds described in Section "Handling of Funds" herein. 22. COUNTERPARTS. This Agreement may be executed in counterparts and all so executed shall constitute one agreement which shall be binding upon all parties hereto notwithstanding that the signatures of all parties' designated representatives do not appear on the same page. . - 9 - 23. BENEFIT OF COUNSEL. The pa.Iiies acknowledge that they have each . had the opportunity to obtain legal advice regarding the Agreement prior to entering into this Agreement. CITY OF DUBLIN Dated: By Its Dated: By .' Its . - 10 - . . . 23. BENEFIT OF COUNSEL. The parties acknowledge that they have each . had the opportunity to obtain legal advice regarding the Agreement prior to entering into this Agreement. Dated: Dated: Dated: Dated: Dated: CITY OF DUBLIN By Its RAF ANELLI & NAHAS By Its /0/7/Cff I Iii 7// /1;/7 /'l~.Pl g MARK RAFANELLI RON NAHAS AH11A1'\JSON DEVELOPMENTS, me. By Its - 10 - c> '"\:.' C"; .' 23. BENEFIT OF COUNSEL. The parties acknowledge that they have each . had the opportunity to obtain legal advice regarding the Agreement prior to entering into this Agreement. CITY OF DUBLIN Dated: By Its RAFANELLI & NAHAS Dated: By . Its -- Dated: MARK RAFANELLI Dated: RON NAHAS AHMANSON DEVELOPMENTS, INC. '. Dated: / 0 - / 6 -1 R .f\ fI"". 9'-:" ~ By I~ , '~, " ./) t .. Its 1I~ 'f//~ . - 10 - . . . Dated: I D - /3 - q 8" Dated: Dated: C"",:, .....'. ,....\.\ ~.:.:' . \.... G.., .,', ',j) '[~HING'IDN MUTUAL BANK, FA By ~()~~/~~ Its VI C.f Pf(G SI O€rJ-r KLEINFELDER, INC. By Its THE GREGORY GROUP By Its - 11 - { " Dated: Dated: Dated: H01vIE SAVINGS BANK By Its . /P/;3/9'? / I By Its ~Xe c '-"'/Y"T' THE GREGORY GROUP By Its - 11 - \/c~ /:~srL/ . . . . . HO:ME SAVINGS BANK Dated: By Its KLEfNFELDER, fNe. Dated: By Its I'}~t fl Dated: ~ By Its - 11 - EXHIBIT "A" DESCRIPTION OF PROPERTY 1. Lot A of Tract 5511: recorded in Book 163, Page 48, Alameda County records. 2. Lot 153, Tract 4719: recorded in Book 142, Page 41, Alameda County records. 3. Those lands lying within the Landscape :Maintenance Easement (L.M.E,) across Lots 137 through 145 as shown on the map of Tract 5511, recorded in Book 163, Page 48, Alameda County records. . . - 12 - . . . .