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HomeMy WebLinkAbout2011 CON Estate of William Hinton / Fire Prevention Services - 844 and 846 Palm AveSETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS [Agreement] is made as of July 19, 2011, by and between the Estate of William E. Hinton [Hinton], CITY OF NATIONAL CITY [City], and Fire Prevention Services, Inc. [FPS], [collectively, Hinton, City, and FPS referred to as "The Parties"], who agree as follows: A. The Parties now wish to settle and dismiss all disputes and claims between them. The undersigned understand, acknowledge, and agree that the execution of this Agreement is not to be construed as an admission of liability on the part of any party to this Agreement. B. Hinton owns the property located at 844 and 846 Palm Avenue in National City, California, Assessor's Parcel Number 557-180-32-00 [the "Property"]. C. On or about October 12, 2010, an initial inspection of the Property was made in response to a citizen complaint. The Property was found to be in violation of being a public nuisance, as set forth in National City Municipal Code Chapter 9.12. On October 13, 2010, a courtesy notice to the Property owner of record was sent notifying the owner of the violations on the Property and providing instructions to the owner as to what was required to abate the public nuisance. The instructions stated: "Please clear the entire property of all weeds, dead vegetation, trash, debris and arundo. All piles of dead vegetation and debris must be removed from the property. (Please maintain any and all grasses below 3 inches year round) Please remove any tree branches and/or vegetation existing upon or touching rooftop. Please remove all tree branches that exist within 6 feet from the ground. (Pepper trees) Please remove any and all dead trees/bushes." D. On November 15, 2010 a re -inspection of the property occurred and the violations originally noted on October 12, 2010 remained on the Property. The Property was posted with a "Notice to Abate Public Nuisance" on November 15, 2010. On November 16, 2010, a 10-day Final Notice was mailed to the owner of the Property. On November 29, 2010 a final inspection was made and the Property was found to be in violation. The ownership of the Property was verified on November 30, 2010. E. On January 11, 2011, Fire Prevention Services, Inc., a contractor for the City of National City, abated the public nuisance on the Property. F. On January 14, 2011, the owner of the Property was mailed a bill for the abatement and a Notice of Abatement was recorded against the Property. A final bill in the amount of $15,696.68 was sent to the Property owner on February 4, 2011. This bill included the cost of debris remediation in the amount of $13,453.14, which was based on a cost of $38.00 per cubic yard and the measured volume of debris totaling 354.03 cubic yards on site at the Property ($38 x 354.03 = $13,435.14). G. On June 21, 2011 and July 5, 2011, Public Hearings were held in compliance with National City Municipal Code Chapter 1.36, which provided Hinton the opportunity to provide testimony and evidence regarding the matter of the public nuisance. Hinton did provide testimony and evidence at the Public Hearings. The City Council continued the Public Hearing for further hearing to July 19, 2011. H. Hinton disputes the $13,453.14 cost of and 354.03 cubic yards volume of debris remediation contained in the final bill sent by Fire Prevention Services, Inc. [FPS]. Hinton has threatened litigation in regard to the abatement action and associated final bill, as described in these recitals [collectively, the "Threatened Action"]. The Parties now seek to resolve their dispute and differences over the abatement action and final billing amount. DEFINITIONS As used in this Agreement, the following words and phrases have the meanings stated: Associated Entities and Persons. "Associates Entities and Persons" includes, but is not limited to, spouses, heirs, executors, administrators, representatives, successors -in -interest, assigns, subrogees, agents, employees, attorneys, former employees, or similarly related entities or persons. Claims. "Claims" shall include all claims, actions, debts, rights, liens, demands, liabilities, losses, damages, indebtedness, agreements, promises, and causes of action, whether asserted or unasserted, known or unknown of any nature or amount, without limitation or exception, whether based on tort, violation of statute, negligence, trespass, nuisance, inverse condemnation, or any other theory of liability or declaration of rights whatsoever, which have accrued or may accrue. Costs. "Costs" shall include all costs, losses, liabilities, damages, judgments, expenses, fees, attorneys' fees, and obligations related to the subject of the complaint referenced herein. AGREEMENT NOW, THEREFORE, the Parties agree as follows: 1. SETTLEMENT: 1.1. Terms: Hinton, FPS, and City agree to adjust the cost of the debris remediation by reducing the debris remediation volume in half, resulting in a debris remediation cost of half of the original amount, to wit: from $13,453.14 to a final adjusted amount of $6,726.57. Hinton does not dispute the other costs contained in the final bill dated January 14, 2011 and February 4, 2011. Accordingly, Hinton shall pay the sum of eight -thousand nine - hundred seventy dollars and eleven cents ($8,970.11); the payment shall be made payable to FPS. The payment shall be made from escrow, which is currently pending and expected to close on July 22, 2011. In the event escrow does not close on Friday, July 22, 2011, then the amount due maybe placed on the assessor's tax role, at the sole discretion of the City. 1.2 Release of Notice of Abatement: A Notice of Abatement has been recorded with the San Diego County Recorder's Office. The Notice of Abatement Document Number is 2011-0027862. Upon satisfaction of the amount due, the Notice will be released and/or removed, as may be needed to close escrow. 1.3 Attorney's Fees and Costs Incurred: Each party shall bear its own respective attorney's fees and costs arising from or related to the referenced abatement action and final bill, and in connection with preparation of this Agreement. Alternatively, the amount to Page 2 of 5 Settlement Agreement: Hinton Estate 844 Palm Avenue Abatement be paid as set forth in Section 1.1 shall be deemed to include all attorneys fees and costs arising from this matter. RELEASE OF CLAIMS. 2.1 Release. For and in consideration of the terms described above, Hinton on behalf of itself, its employees, heirs, executors, administrators, and assigns hereby fully release, acquit and discharge the City and FPS together with any and all past or present employees, agents, officials, officers, predecessors and assigns, from any and all Claims and Costs arising from or related to the abatement action or final bill, or the underlying facts thereof. 2.2 1542 Waiver. The release given in this Agreement includes claims and costs that are unknown and/or not suspected to exist. Hinton hereby expressly waives any and all rights and benefits conferred upon that party by the provision of Section 1542 of the California Civil Code, which are as follows: 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. Hinton hereby acknowledges that the foregoing waiver of the provision of Section 1542 of the California Civil Code was separately bargained for; and expressly consents that this release shall be given full force and effect in accordance with each and all of its express terms and provisions related to unknown and unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands, and causes of action herein specified. 3. MISCELLANEOUS. 3.1 Covenant not to sue. Each of the Parties under this Agreement agrees that such party shall not make, assert or maintain any action, demand or lawsuit against any other party, or the other party's Associated Entities and Persons, for claims released pursuant to this Agreement. 3.2 Further Assurance. Each party shall execute all documents and do all acts reasonably necessary to carry out the intent of this Agreement. 3.3 Successors. The provisions of this Agreement shall be deemed to obligate, extend to, and inure to the benefit of, the successors, assignees, transferees, grantees, and indemnities of each of the parties to this Agreement. 3.4 Representations Regarding Authority. The parties represent and warrant that they are legally authorized and competent to execute this Agreement, which is intended to be a legally binding contract dealing with the release and/or conveyance of certain valuable, important rights. Page 3 of 5 Settlement Agreement: Hinton Estate 844 Palm Avenue Abatement 3.5 Independent Counsel. Each of the parties to this Agreement acknowledges and represents that it has been represented by independent counsel of its own choice through all negotiations which preceded the execution of this Agreement, and that it is freely and voluntarily executed this Agreement with the consent, and upon the advice, of independent counsel. Each of the parties to this Agreement further acknowledges that they have read this Agreement and have had its terms and consequences explained by independent counsel. 3.6 California 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. 3.7 Attorneys' Fees. If any dispute arises pertaining to this Agreement, each party shall bear its own cost and attorneys' fees. 3.8 Interpretation. Wherever the context so requires, the singular number shall include the plural; the plural shall include the singular; and the masculine gender shall include the feminine and neuter genders. No provision of this Agreement shall be interpreted against a party to this Agreement because that party or his or its legal representative drafted that provision. 3.9 Captions. The captions by which the sections and subsections of this Agreement are identified are for convenience only and shall have no effect upon its interpretation. 3.10 Integration. This Agreement (after full execution) memorializes and constitutes the entire agreement and understanding between the parties, and supersedes and replaces all prior negotiations, proposed agreements, and agreements, whether written or unwritten. This Agreement may be amended or modified only by a writing signed by all parties to this Agreement which specifically states it is an amendment to this Agreement. 3.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 3.12 Release Not Admission Of Liability. It is expressly acknowledged and agreed that no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, 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 only. 3.13 Forum Selection. If any action is brought by any party arising out of or in any way related to any of the terms, covenants and conditions of this Agreement, each party agrees that the forum for such action or actions shall be a court of competent jurisdiction within the County of San Diego, State of California. 3.14 Assignments. The Parties hereby represent and warrant that they have not previously assigned, transferred, or purported to have assigned or transferred in any manner, the claim held by it, him or her against the other party. Each party agrees to indemnify and hold Page 4 of 5 Settlement Agreement: Hinton Estate 844 Palm Avenue Abatement harmless the other and pay the other's attorneys' fees in the event that any individual or entity asserts a purported written assignment of a claim from the party to that individual or entity. 3.15 Survival Of Representations and Warranties. The representations, warranties, and releases set forth in this agreement shall remain in full force and effect and shall survive the consummation of this Agreement. Dated: 7 t t✓/, t/ Dated: Estate of William E. Hinton 14,44vmt A61/11,-e? By: William Merrill Title: Administrator of Estate City of Nationaal City By: Chris'Lr apata, Manager Fire Prevention Services, Inc. Dated: By: Ken Osborne, President APPROVED AS TO FORM: Dated: 7/76/// By: Dated: Dated: Les N. Palinka, Esq. Attorney for Estate of William E. Hinton, and for William Merrill, Administrator By: Attorn:1 for Fire Prevention Services, Inc. By: 1 . is . Si a, City Attorney Attorney for 1 ity o National City Page 5 of 5 Settlement Agreement: Hinton Estate 844 Palm Avenue Abatement 10/03/2011 HON 11:41 FAX 0006/006 harmless the other and pay the other's attorneys' fees in the event that any individual or entity asserts a purported written assignment of a claim from the party to that individual or entity. 3.15 Survival Of Representations and Warranties. The representations, warranties, and releases set forth in this agreement shall remain in full force and effect and shall survive the consummation of this Agreement. Dated: Dated: Estate of William E. Linton 1/ By: William en -ill Title: Administrator of Estate City of National 0, By: / Chris Znata, City l nagcr Fire Prevention Services, Inc. Dated: / By: APPROVED AS TO FORM: Dated: 7/16/// Ken Osborne, President By: Les N. Palinka, Esq. Attorney for Estate of William E. Minton, and for William Merrill, Administrator Dated: By: Attorney for Fire Prevention Services, Inc. Dated: By: Claudia G. Silva, City Attorney Attorney for City of National City Page 5 of 5 Settlement Agreement: Ninlnn Estate 844 Palm Avenue Abatement CITY OF NATIONAL CITY OFFICE OF THE CITY ATTORNEY 1243 National City Boulevard, National City, CA 91950-4301 Claudia G. Silva • City Attorney Phone: (619) 336-4220 Fax: (619) 336-4327 TDD: (619) 336-1615 E-mail: Attorney@nationalcityca.gov TO: FROM: Ginny Miller, Legal Assistant SUBJECT: Settlement Agreement and Release of All Claims; Estate of William E. Hinton; 844 and 846 Palm Avenue, National City Esther Clemente, Deputy City Clerk DATE: October 5, 2011 Attached please find two original copies of the above -referenced Settlement Agreement. Please note that there are two signature pages for each agreement (signed in counterparts). Also, Fire Prevention Services was not represented by an attorney, therefore, that signature block remains blank. Per the City Attorney the distribution of this Agreement is as follows: ORIGINALS City Clerk Attorney for Mr. Hinton's estate: COPIES Fire Department Fire Prevention Services, Inc.: Les N. Palinka, Esq., Attorney at Law 7840 Mission Center Court Suite 104 San Diego, CA 92108-1320 Ken Osborne President Fire Prevention Services, Inc. P.O. Box 1720 El Cajon, CA 92022 Please call me at ext. 4223, if you have any questions. OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax October 10, 2011 Mr. Les Palinka, Esq. Attorney at Law 7840 Mission Center Court, Suite 104 San Diego, CA 92108-1320 Dear Mr. Palinka, On July 19th, 2011, a Settlement Agreement and Release of all Claims was made between the Estate of William E. Hinton, City of National City, and Fire Prevention Services, Inc. We are enclosing for your records a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Frank Parra, Fire Dept. Ken Osborne, Fire Prevention Services, Inc.