Loading...
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