HomeMy WebLinkAboutMINUTES - 12052006 - C.27 TO: Board of Supervisors
FROM: Silvano B. Marchesi, County Counsel
Attn: David F. Schmidt, Deputy County Counsel
DATE: December 5, 2006
SUBJECT: Final settlement of Contra Costa County Flood Control & Water Conservation District, et al.
v. BSFS/CASA, et al.
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S)
RECEIVE report concerning the final settlement of Contra Costa County Flood Control & Water
Conservation District, et al. v. BSFS/CASA, et al. and CONFIRM authorization for County Counsel,
or designee, to execute Settlement and Release Agreement to finalize settlement.
FINANCIAL IMPACT
No impact to the General Fund. Settlement will result in reimbursement to Flood Control District for
creek bank repair project.
BACKGROUND/REASONS FOR RECOMMENDATIONS
In April 2005, the Flood Control District and the County filed suit against the developer of Minor
Subdivision 105-88 (BSFS/CASA), some related individuals and entities, and the developer's
contractor (Antioch Paving Co., Inc.). The subdivision, which consists of four lots, is located at the
end of Casa Vallecita in the Alamo area. The suit seeks to recover repair costs for damage to flood
control facilities in San Ramon Creek that was caused by drainage from the subdivision.
On April 13, 2006, a mediation was held before Steven Harper, and a settlement was reached.
Under the settlement, the Flood Control would receive $375,000 in exchange for dismissal of the
suit. The settlement amount is within the range previously approved the Board.
A written Settlement Agreement (copy attached) has been prepared to finalize the settlement. The
County Counsel's Office and the Public Works Department recommend that the Board receive this
report and confirm authorization for the County Counsel, or his designee, to sign the Settlement and
Release Agreement.
CONSEQUENCES OF NEGATIVE ACTION
Pending litigation would continue. Ultimate recovery by Flood Control District may be less than the
$375,000 settlement.
CONTINUED ON ATTACHMENT: L-Yr SIGNATURE ^ fA
ECOMMENDATION OF COUNTY ADMINISTRATOR �RECOMMENDATION IDF BOARD COMMITTEE ///111JJJ 1
y PROVE - _ OTHER
SIGNATURE(S)
ACTION OF BOA40 �4-1491
VOTE F SUPERVISORS e I HEREBY CERTIFY THAT THIS IS A TRUE
-� _ AND CORRECT COPY OF AN ACTION TAKEN
V. UNANIMOUS 1 Va.oa,.n - 9i6r,.,e.T A/ ) AND ENTERED ON THE MINUTES OF THE BOARD
AYES:_ - -- - -- - NOES: OF SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN: OG �,��.a�p`a'-Z,-6e6
ATTESTED:JOHN CULLEN,CLERK OF fHE BOARD OF
MEDIA CONTACT: David F.Schmidt,(335-1816) SUPERVISORS AND COUNTY ADMINISTRATOR,
Originating Dept.: County Counsel
CC: Public Works Dept.(Greg Connaughton,Flood Control)
County Administratorl yyJ�
BY��/ ,DEPUTY
SETTLEMENT AND RELEASE AGREEMENT
The following Agreement is entered into this .* day ofP4Aw"'26-zr'2006,
by and between the Contra Costa County Flood Control and Water Conservation
District, a California special district ("DISTRICT'); the County of Contra Costa, a political
subdivision of the State of California ("COUNTY"); BSFS/CASA, a California limited
partnership (`BSFS/CASA"); John P. Campagna, individually and doing business as
Campagna Realty Services, and Jane Doe Campagna (collectively "CAMPAGNA");
James W. Bones, individually and doing business as Lone Star Development, Inc. and
Lone Star Construction, and Jane Doe Bones (collectively 'BONES"); Comprehensive
Market Timing, Inc., a California corporation ("COMPREHENSIVE"); Lone Star
Development, Inc., a California corporation ("LONE STAR"); and Antioch Paving Co.,
Inc., a California corporation ("ANTIOCH PAVING').
A. WHEREAS, in 1990, COUNTY approved MS 105-88 ("Subdivision"), a four-
lot minor subdivision on the east side of San Ramon Creek at the end of Casa Vallecita
in the Alamo area; and
B. WHEREAS, the Subdivision is located adjacent to a drop structure, concrete
channel lining, and related flood control facilities that DISTRICT owns and operates in
San Ramon Creek ("Flood Control Facilities"); and
C. WHEREAS, the Subdivision conditions of approval required the installation of
a bridge, private road, and drainage improvements to provide access to the Subdivision
and to collect and convey drainage from the Subdivision; and
D. WHEREAS, in 1995, BSFS/CASA acquired the Subdivision from the original
developer and proceeded to have the private road and drainage improvements installed
by ANTIOCH PAVING; and
E. WHEREAS, starting in 1999 and continuing until 2003, drainage originating
from the Subdivision caused erosion and other damage to the Flood Control Facilities
("Damage"); and
F. WHEREAS, DISTRICT demanded that BSFS/CASA, CAMPAGNA, BONES,
COMPREHENSIVE, LONE STAR, and ANTIOCH PAVING repair the Damage and
correct the drainage improvements installed for the Subdivision; and
G. WHEREAS, in 2003, DISTRICT let a construction contract to repair the
Damage and to correct the Subdivision drainage improvements ("Project'), incurring
more than $683,800 in expenses; and
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H. WHEREAS, in 2005, to recover the expenses incurred for repairing the
Damage and correcting the Subdivision drainage improvements, DISTRICT and
COUNTY filed a lawsuit against BSFS/CASA, CAMPAGNA, BONES,
COMPREHENSIVE, LONE STAR, and ANTIOCH PAVING entitled Contra Costa
County Flood Control& Water Conservation District, et al. v. BSFS/CASA, et al., Contra
Costa County Superior Court Case No. C05-00653 ("Litigation"); and
I. The parties have reached a settlement and desire to resolve all of the claims
and expenses in connection with the above-described Damage and Litigation.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein the undersigned represent and agree as follows:
1. ANTIOCH PAVING and BSFS/CASA shall pay $350,000.00 to DISTRICT in
full settlement of the above-described Damage and Litigation. The payment shall be
made within ten days after the execution of this Agreement.
2. CAMPAGNA and BONES shall pay $25,000.00 to DISTRICT in full settlement
of the above-described Damage and Litigation. The payment shall be made within ten
days after the execution of this Agreement.
3. DISTRICT, COUNTY, BSFS/CASA, CAMPAGNA, BONES,
COMPREHENSIVE, LONE STAR, and ANTIOCH PAVING hereby fully and forever
release and discharge each other, their governing bodies, boards, officers, agents,
employees, attorneys, and insurers from any and all claims, liens, demands, causes of
action, obligations, damages, and liabilities of every kind, nature, and character
whatsoever that relate to or are in any manner connected with the Damage and
Litigation described above. The release and discharge shall not apply to the property
owners within the Subdivision or to other third parties not involved in the Litigation.
4. The undersigned expressly understand and acknowledge that it is possible
that unknown losses or claims exist or that present losses may have been
underestimated in amount or severity, and the undersigned explicitly took that into
account in entering into this release, and a portion of the consideration was given in
exchange for a full accord, satisfaction, and discharge of all such claims.
5. Accordingly, with respect to the matters released herein, DISTRICT,
COUNTY, BSFS/CASA, CAMPAGNA, BONES, COMPREHENSIVE, LONE STAR, and
ANTIOCH PAVING expressly waive all rights under California Civil Code Section 1542,
which provides:
"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."
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6. Within five days after DISTRICT receives the payments described in Sections
1 and 2 above, the parties shall dismiss the entire Litigation with prejudice.
7. The court shall retain jurisdiction to enforce this Agreement pursuant to Code
of Civil Procedure Section 664.6. In the event of any default under this Agreement, the
court may enter judgment pursuant to the terms of this Agreement. In addition, should
any party fail to carry out the dismissal provided for in Section 5, the court shall retain
jurisdiction, as necessary, to order the party to carry out the dismissal or to appoint
another person to act in the party's place.
8. The parties to this Agreement acknowledge that the consideration given in
connection with this Agreement is a compromise of disputed claims and litigation and
does not constitute, and shall not be construed as, an admission of liability on the part
of any party for any purpose whatsoever.
9. This Agreement shall be binding upon and for the benefit of the parties hereto
and their respective heirs, successors, agents, designees, and assigns.
10. Each of the undersigned warrants that no promise, inducement, or
agreement not expressed here has been made to it in connection with this Agreement
and that this Agreement constitutes the entire agreement between the parties herein
named with respect to the matters recited herein. It is expressly understood and agreed
that this Agreement may not be altered, amended, modified, or otherwise changed in
any respect whatsoever, except by a writing duly executed by both parties. Each of the
undersigned hereby agrees that it will make no claims that this Agreement has been
orally altered or modified or otherwise changed by oral communication of any kind or
character. Any such representation shall constitute a material breach hereof.
11. This Agreement is entered into freely and voluntarily and with and upon the
advice of counsel. Each of the undersigned warrants that the person signing below is
authorized to sign this Agreement on its behalf and to bind it to the terms of this
Agreement.
12. This Agreement shall not be construed against the party preparing it, but
shall be construed as if all of the parties jointly prepared it, and any uncertainty or
ambiguity shall not on that ground be construed against any one party.
13. Should any provision of this Agreement be held invalid or illegal, such
invalidity or illegality shall not invalidate the whole of this Agreement, but rather, this
Agreement shall be construed as if it did not contain the invalid or illegal part, and the
rights and obligations of the undersigned shall be construed and enforced accordingly.
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14. Copies of this document may be used in lieu of the original. In the absence
of substantial evidence that the copy has been altered or substantial evidence that the
copy is not a true and accurate duplicate of the original, such copies shall be equally
admissible in evidence as the original.
15. This Agreement shall be construed and enforced pursuant to the laws of the
State of California.
16. Each party shall bear its own costs, attorneys' fees, mediation fees, and
other expenses incurred in connection with the Damage and Litigation described above.
However, if either party brings an action or motion against the other by reason of any
breach of the provisions of this Agreement, including without limitation the provisions of
Section 6, the prevailing party shall be entitled to recover from the other party all costs
and expenses of litigation or arbitration, including reasonable attorneys' fees. The
attorneys' fees shall be recoverable as costs under Code of Civil Procedure Section
1021.
17. The execution, delivery, and performance by each of the undersigned of this
Agreement, and each and every document referred to herein, are with the relevant
signatories' powers, having been duly authorized by corporate authorization as
applicable, require no government or creditor approval, except approval by DISTRICT's
and COUNTY's governing body, and do not contravene any laws or regulations, or any
contractual restrictions applicable to, or binding upon the undersigned or their
signatories.
18. The undersigned agree to execute any other documents or forms necessary
or helpful to carry out this Agreement or to facilitate the payments specified in Sections
1 and 2 above.
Dated:November , 2006
CONTRA COSTA COUNTY FLOOD COUNTY OF CONTRA COSTA
CONTROL AND WATER ("COUNTY")
CONSERVATION DISTRICT
("DISTRICT")
By:
David F. Schmidt
By: Deputy County Counsel
David F. Schmidt
Deputy County Counsel
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BSFS/CASA
John P. Campagna
By: Jane Doe Campagna
Managing Partner
("CAMPAGNA")
COMPREHENSIVE MARKET TIMING,
James W. Bones INC. ("COMPREHENSIVE")
Jane Doe Bones
By:
('BONES") (Signature)
Name:
Title:
LONE STAR DEVELOPMENT, INC. ANTIOCH PAVING CO., INC.
("LONE STAR") ("ANTIOCH PAVING')
By: By:
(Signature) (Signature)
Name: Name:
Title: Title:
APPROVED AS TO FORM: APPROVED AS TO FORM:
SILVANO B. MARCHESI DALE, BRADEN & HINCHCLIFFE
COUNTY COUNSEL
By:
By: R. Jeremie Ginelli
David F. Schmidt
Deputy County Counsel Attorneys for BSFS/CASA
Attorneys for DISTRICT and COUNTY
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APPROVED AS TO FORM: APPROVED AS TO FORM:
THE LAW OFFICES OF JIM G. PRICE CURTIS LAW CORPORATION
By: By:
Jim G. Price Richard B. Curtis
Attorney for CAMPAGNA and Attorney for BONES and LONE STAR
COMPREHENSIVE
APPROVED AS TO FORM:
DIEPENBROCK & COTTER, LLP
By:
Paul R. Cotter
Attorneys for ANTIOCH PAVING
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CERTIFICATE OF ACKNOWLEDGMENT
State of California )
) ss.
County of )
On the date written below, before me, the undersigned Notary Public, personally
appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Dated:September , 2006
Notary Public
[Notary's Seal]
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