12-0821_WATKINS, MARK M._General Release and SettlementGENERAL RELEASE AND SETTLEMENT
This general release and settlement agreement (hereinafter "Agreement") is
entered into between MARK M. WATKINS (hereinafter "Watkins") and the City of San
Juan Capistrano (the "City"). Watkins and the City are sometimes collectively referred
to herein as the "Parties."
1. RECITALS
(a) On December 4, 2010, Watkins granted the City a non-exclusive
easement and right-of-way over real property located in"the City at 33301 Alipaz Street,
Assessor's Parcel Number 668-211-20, for public utilities purposes, which easement is
recorded in the office of the County Recorder as Instrument No. 2011000585456.
(b) The City has installed a water line within the easement and has extended
water service and installed a meter box at the above -referenced property.
(c) . Watkins has asserted and claimed that the City has not performed various
promises related to Watkins' consideration for the grant of easement, which the City
denies.
(d) The parties wish to resolve their dispute regarding the Watkins' claimed
unfulfilled promises.
2. CONSIDERATION
In exchange for the release and dismissal provided for herein, the City shall
permit Watkins to connect to the City's potable water supply and waive capacity fees
that would otherwise be due by Watkins. No payment is otherwise due by City to
Watkins and no other fee or charge is being waived by the City. It is estimated that
Watkins will pay a meter installation and service establishment fee in the amount of
$636.11 to establish water service for the subject property, which is subject to the
rates for water service.
3. RELEASE AND INDEMNITY
a) In return for the consideration referred to herein, Watkins hereby fully and
forever completely releases, acquits and discharges the City and its officers,
employees, agents and representatives from any and all claims, .costs, demands,
damages, attorneys' fees, and rights which arise from, or are directly or indirectly
related to, or are connected with the claims that were or that could have been asserted
by Watkins in connection with the grant of above -referenced easement and installation
of the City's water line within said easement.
b) Watkins specifically agrees to hold the City harmless, and to indemnify
the City and its officers, employees, agents and representatives from and against any
lien made by any lienholder or its agents, officers, directors, shareholders, attorneys,
867491.1
servants, representatives, employees, subsidiaries, partners, predecessors, successors
in interest, assignees, firms, or corporations which arise from, or are directly or indirectly
related to, or are connected with the claims that were or that could have been asserted
in connection with the grant of above -referenced easement and installation of the City's
water line within said easement.
c) Watkins agrees to hold the City and its officers, employees, agents and
representatives harmless and to indemnify the City and its officers, employees, agents
and representatives from and against any claim made by Watkins and/or his agents,
attorneys, servants, employees, representatives, and successors in interest against the
City and its officers, employees, agents and/or representatives relating to the claims
that were or could have been asserted in connection with the grant of above -referenced
easement and installation of the City's water line within said easement.
4. WAIVER OF SECTION 1542
There is a risk that, after the execution of this Agreement, Watkins will manifest
new damage, the scope, location, and character of which is unknown and/or not
discovered at the time this Agreement is signed. There is a risk that the damage of
which Watkins and their attorney presently are aware may become more serious or
otherwise increase in magnitude (qualitatively and/or quantitatively). Watkins shall, and
hereby do, assume the above-mentioned risks. This release is expressly intended to
cover and include all future damages, defects and discoveries, including all rights and
causes of action arising against the City therefrom. Watkins is aware of the provisions
of California Civil Code section 1542, which provide:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
Watkins hereby expressly waives the provisions of said Section 1542 as to all
matters within the scope of the claims released hereby. Watkins hereby warrants and
guarantees that he has full and complete authority to release all such claims on behalf
of himself and his respective heirs, assigns, and successors in interest.
5. NO ADMISSION OF LIABILITY
It is expressly understood, acknowledged and agreed to by the Parties, that by
reason of entering into this Agreement, no party admits, expressly or impliedly, any fact
or liability of any type or nature with respect to any matter, whether or not referred to
herein, or the sufficiency of any claims, allegations, assertions, or positions of any party;
no party has made any such admissions; and this Agreement is entered into solely by
way of compromise and settlement.
867491.1
6. NO PRIOR ASSIGNMENT OR TRANSFER
Each party to this Agreement represents and warrants there has been no
assignment or other transfer of any claims or causes of action which they are releasing
or assigning pursuant to the terms of this Agreement.
7. MISCELLANEOUS PROVISIONS
7.1 Entire Agreement: This Agreement constitutes the full and entire
Agreement between the Parties hereto and such Parties acknowledge that there is no
other Agreement, oral and/or written, between the Parties hereto.
7.2 Authoritv to Enter Agreement: This Agreement is the result of arms length
negotiations.
7.3 Final Agreement: Watkins acknowledges that (1) this Agreement and its
reduction to final form is the result of extensive good faith negotiations between the
Parties through their respective counsel; (2) any statute or rule of construction that
ambiguities are to be resolved against the drafting party should not be employed in the
interpretation of this Agreement.
7.4 Binding Agreement: This Agreement is and shall be binding upon and
shall inure to the benefit of the predecessors, subsidiaries, successors, assigns,
parties, agents, officers, employees, associates, legal representatives, heirs, executors
and/or administrators of each of the Parties hereto.
7.5 Interpretative Law: This Agreement is made and entered into in the State
of California and shall, in all respects, be interpreted, enforced and governed by and
under the laws of the State of California.
7.6 Modifications: This Agreement may be amended or modified only by a
writing signed by all Parties to this Agreement.
7.7 Paragraph Headings: Paragraph headings are for reference only and
shall not affect the interpretation of any paragraph hereto.
7.8 No Inducement: Watkins warrants that no promise or inducement has
been made or offered by any of the Parties, except as set forth herein, and that this
Agreement is not executed in reliance upon any statement or representation of any of
the Parties or their representatives, concerning the nature and extent of the injuries,
damages or legal liability thereof. 'Watkins further represents that he has been
represented by legal counsel during the course of the negotiations leading to the
signing of this Agreement, and that he has been advised by legal counsel with respect
to the meaning of this Agreement and its legal effect.
7.9 Attorneys Fees and Costs in this Action: Except as otherwise provided
herein, each Party shall bear its own attorney's fees and costs incurred in connection
867491.1
with this Agreement and the subject matter hereof. Should any action be necessary to
enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees.
7.10 Counterparts: This Agreement may be executed in counter -parts with the
same effect as if all original signatures were placed on one document and all of which
together shall be one and the same Agreement.
7.11 Effective Date: This Agreement to be effective as of the date all
signatures are obtained.
IN WITNESS WHEREOF, the undersigned have executed this General Release
and Settlement Agreement on the date affixed by their signature.
WATKINS
Dated: August 17 2012
Approved as to form:
Dated: August?/, , 2012
CITY
Dated: August L, 2012
Approved as to form:
Dated: August 2L, 2012
867491.1
Mark M. Watkins
HART, KING & COLDREN
C, Je"7'44-'
C. William Dahlin, Esq.
City Afforn