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HomeMy WebLinkAboutMINUTES - 11031998 - C31-C33 TO:' BOARD OF SUPERVISORS FROM: Phil Batchelor, County Administrator Contra DATE: November 3, 1398 Uosta SUBJECT: Final Settlement of Claim Teresa Hernandez, on behalf of her miner son County Blake Hernandez vs. Contra Costa County SPECIFIC REQUIEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: Receive this report concerning subject final settlement and payment from the General Liability Trust Fund in the amount of$45,000. BACKGROUNDIREASONS FOR RECOMMENDATION: Joseph J. Tonda, Risk Manager for the County, has advised the County Administrator that within authorization an agreement has been reached settling the general liability claim of Teresa Hernandez, on behalf of her mirror son, Blake Hernandez vs. Contra Costa County. This Board's October 20, 1998 closed session vote was: Supervisors 'Gerber, ©eSaulnier, Uilkema and Rogers, yes, and Supervisor Canciamilla, no. This action is taken so that terms of this final settlement and the earlier October 20, 1998 closed session vote of this Board authorizing its negotiated settlement are known publicly. CONTINUED ON ATTACHMENT: YES SIGNATURE: 1 RECOMMENDATION OF COUNTY ADMINISTRATOR REG MMENI7ATION OARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON �, Q�,,l E'rt. APPROVED AS RECOMMENDED' E1 OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE BOARD UNANIMOUS (ABSENT ) OF SUPERVISORS ON THE DATE SHOWN. AYES: NOES: ABSENT. ABSTAIN. ATTESTED '"' PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR Contact: Ron Harvey—335.1443 cc: CAO Risk Management Auditor-Controller BY ,���,-, ,DEPUTY TO: BOARD OF SUPERVISORS C. FROM: Phil Batchelor, County Administrator 4 Contra DATE: November 3, 1398 Costa w SUBJECT: Final Settlement of Claim Helen Thomson vs. Centra Costa County County SPECIFIC REQUEST(S)OR RECOMMENDATION(S)$BACKGROUND AND JUSTIFICATIONrn�.rr..ru..r ..r.rs RECOMMENDATION: Receive this report concerning subject final settlement and payment from',the General Liability Trust Fund in the amount of$50,000. BACKGROUNDIREASONS FOR RECOMMENDATION: Joseph J. Tonda, Risk Manager for the County, has advised the County Administrator that within authorization an agreement has been reached settling the general liability claim of Helen Thomson vs. Contra Costa County. This Board's October 20, 1998 closed session vote was: Supervisors Gerber, DeSaulnier, Uilkema, Rogers, and Canciamilla, yes. This action is taken so that terms of this final settlement and the earlier October 20, 1998 closed session vote of this Board authorizing its negotiated settlement are known publicly. CONTINUED ON ATTACHMENT: YES SIGNATURE: L RECOMMENDATION OF COUNTY ADMINISTRATOR AEMMENDATION BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON 1 APPROVED AS RECOMMENDED � OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN ANIS ENTERED ON THE MINUTES OF THE BOARD UNANIMOUS (ABSENT } OF SUPERVISORS ON THE DATE SHOWN. AYES: NOES: ,rte ABSENT: ABSTAIN: r� t f l JP ATTESTED PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR Contact: Ran Harvey—335-1443 cc: CAO Risk Management Auditor-Controller BY � ,DEPUTY TO: BOARD OF SUPERVISORS FROM: Victor J. Westman, County Counsel by: Diana J. Silver, Deputy County Counsel DATE: October 28, 1995 SUBJECT: Suncrest Flames v. Contra Costa County, C.C.C. Sup. Ct. No. C98-01900 : Settlement Agreement SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: APPROVE and AUTHORIZE County Counsel to sign settlement agreement with Suncrest Homes (C.C.C.Superior Court #C98-01900) to dismiss litigation and to terminate offer of dedication of Chaney Road trail easement. BACKQ 0UND//RE;ASON FOR�RECOMMENDATION: In order to satisfy conditions of approval and file a final map for Subdivision 7154, Suncrest Homes was required to offer to dedicate a certain trail easement over Chaney Road. The offer of dedication was made by Suncrest Homes under protest (Gov. Code § 66020) at that time, November 4, 1997 . This litigation followed. The Board has previously authorized this office to negotiate terms of settlement which would result in the dismissal of the above-referenced litigation on terms that would not block pedestrian access over the subject area and with each party bearing its own costs and fees. The attached settlement agreement incorporates these terms . FISCAL IMPACT: None known as each party will bear their own costs and fees. CON EQ_UENCES OF NE A'L'IVE ACTION: If not settled, this case will proceed to trial on the merits. CONTINUED ON ATTACHMENT: YES SIGNATURE '. RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE HOARD OF SUPERVISORS ON THE BATE SHOWN. Orig: ATTESTED _ntV-4r�-4e cc: Community Development Dept. PHIL BATCHELOR, CLERIC OF Attn: Dennis Barry, Director THE BOARD OF SUPERVISORS Public Works Dept. AND COUNTY ADMINISTRATOR Attn: Mitch Avalon By. e' . Deputy H:\GROUPS\STAFF\SUNCRST.WPD SETTLEMENT AGREEMENT MUTUAL RELEASE AND COVENANT NOT TO SUE This Settlement Agreement,Mutual Release and Covenant Not to Sue ("Agreement") is entered into by and between Suncrest Homes Number Four, LLC, ("Suncrest") and the County of Contra Costa ("County"). Suncrest and the County are sometimes referred to in this Agreement as the"Parties." RECITALS A. There is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, a lawsuit entitled Suncrest Homes Number Four, LLC,v. County of Contra Costa, Civil Action No. C98-01900 (the "Action"). B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expense of further litigation. C. This Agreement relates to the Stonecastle Estates subdivision,which is Subdivision Map 7154 (the "Subdivision"), located in the unincorporated area:of Contra Costa County. This Agreement relates to that certain trail easement over Chaney Road conveyed by Suncrest to the County under protest on November 4, 1997, (Item C.23, Board of Supervisors Agenda,November 4, 1997),hereinafter referred to as the "trail easement." AGREEMENT 1. This Agreement shall be effective on the date last executed by Suncrest,or duly approved by the Board of Supervisors of the County,whichever is later. The Parties understand and agree that the Board will authorize the County Counsel's Office to sign this agreement on behalf of the County after approval by the Board, and that the County Counsel's signature shall be sufficient to bind the County. 2. The Parties agree that,within thirty (30) days of the effective date of this Agreement, and following the dismissal of the pending litigation, the County will record a Board Resolution terminating the offer of dedication of the Chaney Road trail easement to Suncrest and adopting a summary vacation of that easement pursuant to Streets& Highways Code § 8330 et seq. 3. The Parties agree that Suncrest will ensure by deed restriction for Lots 21 and 22 of the subdivision that no physical barrier will be erected or placed over the area of the trail 1 Settlement Agreement page 2 Suncrest Homes v. County of Contra Costa easement which would physically block or prevent pedestrian access over the area of the trail easement. 4. The Parties agree to dismiss immediately all claims and cross-claims in the Action,with prejudice,upon the effective date of this Agreement. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. Suncrest shall dismiss the pending litigation with prejudice and to bear all costs associated with these acts upon approval of the Board resolution terminating the offer of dedication referenced in paragraph two of this agreement. 5. Except for the ability to enforce this Agreement, each Party',releases and forever discharges the other of and from and waives any and all claims, demands, controversies, actions, causes of action, obligations, damages and liabilities of any nature whatsoever, whether at law or in equity that it ever had, now has, or that it may hereafter have against the other and that arise out of the subject matter of the Action 6. The waivers and releases in this Agreement include waiversand releases of any claims for costs, expenses and attorneys' fees, taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action against employees, agents, officers,directors and partners of each Party in their individual capacities,as well as claims against the Parties. 7. Each Party agrees that it will not commence, maintain, continue or voluntarily assist in any way in the prosecution by any other person or entity of any claim against the other, any related corporate entity, or any present or former employee of the other, relating to any matter waived or released in this Agreement. 8. Neither the transfer of any consideration,the doing of any of the acts referred to in this Agreement, nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for or merit of any claims asserted by any of the other Parties. The Parties deny all such claims. 9. The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist. 2 23 Settlement Agreement page 3 Suncrest Homes v. County of Contra Costa 10. This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior under standings relating to them, whether written or oral. There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this Agreement. 11. No amendment of, supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instances expressly stated. SUNCREST HOMES NUMBER FOUR VICTOR J. WESTMAN COUNTY COUNSEL By: By: Diana J. Silver, Deputy County Counsel Dated: Dated: DJS/jh 3 Settlement Agreement page 4 Suncrest Homes v. County of Contra Costa H:\GROUPS\JOANN\SUN- AGR.WPD 4 . OCT-28-98 WED 11 :08 AM COUNTY COUNSEL FAX NO. 610 6461078 P. 02/04 SETTLEMENT AGREEMENT MU'T'UAL RELEASE ANIS COVENANT NOT TO SUI; This Settlement Agreement,Mutual Release and Covenant Not to Sue ("Agreement"}is entered into by and between Suncrest Homes Number Four, LLC, ("Suncrest") and the County of Contra Costa("County„). Suncrest and the County are sometimes referred to in this Agreement as the”Parties:' RECITALS A. There',is now pending in the Superior Court of the State of California, in and for the County of Contra Costa, a lawsuit entitled Suncrest Homes Number Four,LLC,v. County of Contra Costa,Civil Action No. C98-01900(the"Action"'). B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expenso of further litigation. C. This Agreement relates to the Stonecastle Estates subdivision,which is Subdivision Map 7154 (the"Subdivision""), located in the unincorporated area of Contra Costa County. This Agreement relates to that certain trail easement over Chaney Road conveyed by Suncrest to the County under protest on November 4, 1997, (Item C.23,Board of Supervisors Agenda,November A, 1997),hereinafter referred to as the'Vail casement." AGREEMENT 1. This Agreement shall be effective on the date last executed by Suncrest, or duly approved by the Board of Supervisors of the County,whichever is later, The Parties understand and agree that the Board will authorize the County Counsel's Office to sign this agreement on behalf of the County after approval by the Board,and that the County Counsel's signature shall be sufficient to bind the County. 2. The Parties agree that,within thirty (30)days of the effective date of this Agrecment, and following the dismissal of the pending litigation,the County will record a Board Resolution geminating the offer of dedication of the Chaney Road trail easement to Suncrest and adopting a summary vacation of that easement pursuant to Streets&Highways Code§ 8330 et seq. 3. The Parties agree that Suncrest will ensure by decd restriction for Lots 21 and 22 that no physical barrier will be erected or placed over the area of the trail easement which t ............................................. OCT-28-98 WED 11:09 AM COUNTY COUNSEL FAX N0. 510 6461076 P. 03/04 fix .: Settlement Agreement page 2 Suncrest Homes v. County of Contra Costa would physically block or prevent pedestrian access over therhea of the trail casement. 4. The Parties agree to dismiss immediately all claims and cross-claims in the Action,with prejudice, upon the effective date of this Agreement. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. Suncrest shall dismiss the pending litigation with prejudice and to bear all costs associated with these acts upon approval of the Board resolution terminating the offer of dedication referenced in paragraph two of this agreement. S. Except for the ability to enforce this Agreement;each party releases and forever discharges the other of and from and waives any and all claims,demands, controversies, actions,causes of action,obligations,damages and liabilities of any nature whatsoever,whether at law or in equity tlyat it ever had,now has,or that it may hereafter have against the other and that arise out of the subject matter of the Action. 6. The waivers and releases in this Agreement include waivers and releases of any claims for costs,expenses and attorneys' flees,taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. The claims waived and released in this Agreement include claims that arise out of the subject matter of the Action against employees, agents,officers,directors and partners of each Party in their individual capacities,as well as claims against the Parties. 7, Each Party agrees that it will not commence,maintain,continue or voluntarily assist in any way in the prosecution by any other person or entity of any claim against the other, any related corporate entity,or any present or former employee of the other,relating to any matter waived or released in this Agreement. 8. Neither the transfer of any consideration, the doing of any of the acts referred to in this Agreement,nor anything else contained in this Agreement shall be construed to be an admission on the part of any of the Parties of any liability for or merit of any claims asserted by any of the other Parties. The Parties deny all such claims. 9. The Parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this.Agreement. Incases of uncertainty this Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist, 10. This Agreement sets forth the entire understanding of the Parties relating to 2 ..................................................... OCT-28-98 WED 11:09 AM COUNTY COUNSEL FAX NO, 510 6461078 P. 04/04 Settlement Agreement page 3 Sunerest Homes v. County of Contra Costa the transactions it contemplates, and supersedes all prior under standings relating to them, whether written or oral. Where arc no obligations, commitments,representations or warranties relating to them except those expressly set forth in this Agreement. 11 No amendment of,supplement to or waiver of any obligations under or provisions of this Agreement will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instances expressly stated. SUNCREST HOMES NUMBER FOUR VICTOR J.WESt'MAN COUNTY COUNSEL ByU By: Diana J. Silver,Dep County Counsel r� Dated: � Dated: �l DJS/jh WAGROUPSUOANb11$UNA10R.WPD 3