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HomeMy WebLinkAbout2015 CON Pacific Bay View Tower - Limited Indemnity and Release AgreementLIMITED INDEMNITY AND RELEASE AGREEMENT A. PARTIES This Limited Indemnity and Release Agreement (hereinafter "Agreement") is made and entered into this 18th day of September, 2014, by Pacific Bay View, LLC ("Pacifica") and the City of National City ("City") (collectively the "Parties") regarding the Notice issued by the City on September 11, 2014, and the construction work that is to be performed at the Bay View Tower, located at 801 National City, Blvd., National City, CA 91950 ("Subject Property"). No other persons and/or entities are Parties to this Agreement; nothing herein shall provide extend any rights, benefits, or releases in this Agreement, nor shall there be found to be any third party beneficiary status to the Bay View Tower Maintenance Association, Inc. ("Association") or any other party . B. RECITALS 1. Whereas on or around September 10, 2014, the Building Division of the City found conditions at the Subject Property to be unsafe and issued a Notice of Unsafe Building Conditions ("Notice") pertaining to the emergency stairs, guardrails, handrails, and fire separation/fire breaks (the "Red Tag Issues"); and 2, Whereas the City posted its Notice, which stated that the occupants of the Subject Property must vacate the Subject Property by September 21, 2014; 3. Whereas Pacifica contested whether the Red Tag Issues were immediate life and safety issues requiring the building to be red tagged and the occupants to vacate the Subject Property. 4. Whereas the Association despite assurances to the contrary to the City, failed for over eight (8) months to submit any repair plan for review and approval to the City to avoid the issuance of the City's Notice; and 5. Whereas Pacifica, as the owner of approximately 40% of the units at the Subject Property, has agreed, with the consent of the Association, to undertake permanent repairs to the conditions included in the Notice including the exterior stairs, handrails and guardrails, at its own cost and without any admission of liability or responsibility and without waiving any rights to assert any defenses or affirmative claims against third parties; and 6. Whereas the City has determined that issues it raised with regard to the planter boxes and/or exhaust ducts were not part of the Red Tag Issues but were issues to be corrected by the Association separate and distinct from the Red Tag Issues; as part of the repairs required by the City, Pacifica is required and will be performing a repair to include sealant of the exhaust vent sub -ducts at the fire separation wall as a temporary measure; and 7. Whereas the Parties now wish to resolve and settle any claims arising out of or relating to the Notice in accordance with the terms set forth below; LEGAL:05673-0034/4148146.1 LIMITED INDEMNITY AND RELEASE AGREEMENT NOW, WHEREFORE, subject to the terms and conditions hereafter set forth, and with the intent to be legally bound hereby, Pacifica and the City agree as follows: C. DEFINITIONS As used in this Agreement, the following terms have the following meanings. Unless otherwise indicated, where the context so requires, each defined term stated in the singular includes the plural, and each defined term stated in the plural includes the singular. 1. "Claims" means all past, present and future claims, suits, actions, cross - complaints, counterclaims, rights, demands, requests, arbitrations, mediations, causes of action, obligations, settlements or orders, whether at law, equity or otherwise, or whether sounding in tort, contract, equity, strict liability or any statutory or common law cause of action of any sort, against the City based on the Notice (red -tagging) and the repair work being performed by Pacifica at the Subject Property related to the Red Tagging Issues, as set forth above. 2. "City" means the City of National City, and all of its officials, officers and directors, predecessors, successors, subsidiaries, parents, affiliates, joint ventures, agents, servants, employees, attorneys, representatives, and assigns. 3. "Pacifica" means Pacific Bay View, LLC, and all of its officers and directors, predecessors, successors, subsidiaries, parents, affiliates, joint ventures, members, shareholders, agents, servants, employees, attorneys, representatives, and assigns. 4. "Parties" means the City and Pacifica, and "Party" shall refer to either of the Parties. 5. "Notice" means the Notice of Unsafe Building Conditions issued by the City on September 10, 2014. A true and correct copy of the Notice is attached hereto as Exhibit "A" and incorporated as if set forth fully herein. 6. "Red Tag Issues" includes the items listed on the Notice, including the emergency stairs, guardrails, handrails, and fire separation/fire breaks. D. LIMITED INDEMNITY Pacifica expressly agrees to indemnify and hold the City harmless from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the repairs performed by or on behalf of Pacifica, as set forth above, to address the Red Tag Issues identified in the Notice, but only up to and including the amount of $25,000.00, regardless of whether the City is responsible for, at fault for, negligent, whether solely or concurrently, strictly liable, or in breach of LEGAL:05673-0034/4148146.1 LIMITED INDEMNITY AND RELEASE AGREEMENT any contract, in whole or in part, from any damages arising therefrom. The indemnity provided for herein relates only to the work performed at the exterior stairs including the handrail and guardrail repairs and is limited to any and all claims arising out of or related to work undertaken by Pacifica in regard to the exterior stairs and for any claims that are made only during the time that the work is being performed. E. RELEASE 1. Pacifica hereby fully releases and discharges the City, including its officials, officers and directors, predecessors, successors, subsidiaries, parents, affiliates, joint ventures, members, shareholders, agents, servants, employees, attorneys, representatives, and assigns in regard to any complaints, cross -complaints, causes of action, intentional or negligent acts, intentional or negligent omissions, liability without fault, misrepresentations, material omissions, fraud, deceit, breaches of contract, breaches of warranties, economic damages, stigma damages, non -economic damages, compensation, property damage, loss of use, loss of services, attorneys' fees, experts' fees, repair costs, investigative costs, future professional fees, consultative expenses, relocations costs, diminution in value claims, and any other actionable omissions, conduct or damage of every kind or nature whatsoever, whether in tort, contract or extra -contractual, at law or contingent, foreseen or unforeseen, known or unknown, past, present, or future that arise out of or are related to the issuance of the Notice by the City at the Subject Property and for any actions taken by the Parties in regard to the Notice up to and including the execution of this Agreement. 2. Pacifica agrees to waive and relinquish any and all rights or benefits conferred upon it by the provisions of Section 1542 of the California Civil Code or any similar law of any state or territory of the United States or any foreign country. California Civil Code §1542 provides: 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 RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Pacifica understands and acknowledges that a risk exists that they incurred or suffered or may incur or suffer loss, damages, or injuries as a result of the matters, events, occurrences, transactions, causes and things which were unknown unsuspected or unanticipated at the time this Agreement is executed. Pacifica assumes this risk, and notwithstanding this risk intend by this Agreement to release and discharge the City from and against all claims. Pacifica voluntarily, and with full knowledge of its significance, waives and relinquishes any and all rights that they have under California Civil Code §1542 as well as under the provisions of all comparable, equivalent or similar statutes and principles of common law or other decisional law of any and all states of the United States and of the United States as to the claims covered herein and as described above. LEGAL:05673-0034/4148146.1 LIMITED INDEMNITY AND RELEASE AGREEMENT It is expressly understood and agreed that this waiver of California Civil Code §1542 and the release set forth herein are material terms of this Agreement and were separately negotiated between the Parties hereto. 3. None of the releases or benefits herein shall extend to the Association by virtue of this Agreement. F. FURTHER AGREEMENTS 1. If any term of this Agreement is determined to be illegal, ineffective or otherwise void, the term shall be severed from the remainder of the Agreement, and the other terms of the Agreement shall remain binding upon the Parties, having full force and effect. 2. The Parties recognize that this is a settlement of disputed claims. This Agreement and any proceedings taken pursuant hereto shall not in any event be construed as, interpreted as, or deemed to be evidence of an admission or concession by either Party for any purpose, or deemed to constitute a waiver of any legal position or any defenses or other rights which either of the Parties might otherwise assert in any context. Neither this Agreement nor any of its provisions nor any other documents related hereto nor any negotiations, statements or testimony taken in connection herewith may be offered or received in evidence, or used for any other purpose in connection with the Claims or any other suit, action, legal proceeding or other proceeding which either Party may now have or in the future has with any other Person, as an admission or concession of liability or wrongdoing or as any admission or concession on the part of either Party, except in connection with any action or legal proceeding to enforce this Agreement. This Agreement has been entered into without any concession of liability or non -liability whatsoever and has no precedential or evidentiary value whatsoever. This Agreement does not and is not intended to create any rights with respect to any third parties. No one other than the Parties shall have any legally enforceable rights or benefits under this Agreement nor shall any non-parties be deemed to be third -party beneficiaries. 3. Each Party agrees that it shall bear its own costs and attorneys' fees, if any, with respect to the matters released herein, and in the negotiation and drafting of this Agreement. 4. This Agreement is binding upon, and shall inure to the benefit of, all Parties, their respective sureties, officers and directors, predecessors, successors, subsidiaries, parents, affiliates, joint ventures, partners, shareholders, members, agents, servants, employees, attorneys, representatives, and assigns , unless otherwise stated herein. 5. This Agreement may be executed in counterparts and shall be binding upon all parties when each Party has signed at least one such counterpart. Further an electronic or facsimile signature shall be deemed a binding signature. LEGAL:05673-0034/4148146.1 LIMITED INDEMNITY AND RELEASE AGREEMENT 6. The language of this Agreement shall be construed as a whole, according to its fair meaning and intent and not strictly for or against any Party hereto, regardless of who drafted or was principally responsible for drafting this Agreement or any specific term or condition hereof. This Agreement shall be deemed to have been drafted by all Parties hereto, and no Party hereto shall urge otherwise. 7. No amendment, modification, addendum, or revision of this Agreement shall be valid unless it is in writing and signed by the Party or Parties to be bound, in which event there need be no legal consideration therefor. 8. Should an action be necessary to enforce the terms of this Agreement, the prevailing Party in that action shall be entitled to an award of attorneys' fees and costs from the non -prevailing party. 9. Each Party agrees that no promise or agreement not herein expressed has been made to it, that this Agreement contains the entire agreement between the Parties, that this Agreement supersedes any and all prior agreements or understandings between the Parties and that the terms of this Agreement are contractual and not a mere recital; that in executing this Agreement, no Party is relying on any statement or representation made by any other Party, or the other Party's agents, servants or attorneys or concerning the subject matter, basis or effect of this Agreement other than as set forth herein; and that each Party is relying solely on its own judgment and knowledge. 10. The aforementioned Recitals are material terms and conditions of this Agreement. Nothing in this Agreement will create any obligations to any other party nor provide any third party beneficiary status to any other party IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. City of National City Leslie Deese, City Manager Pacific Bay View, LLC; a California Limited Liability Company By: BY: Pac Bay View, Inc., a California or oration its General Partner De pk'Israni, ecretary Duly Authorized L E GAL:05673-0034/4148146.1 WSH&vi HENNIN G & BERMAN LLP April 29, 2015 Claudia G. Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950 izzqz7i 505 North Brand Boulevard, Suite 1100 Glendale, California 91203 tel 818 551-6000 fax 818 551-6050 Direct Dial: (818) 551-6064 Email: staylor@wshblaw.com Website: www.wshblaw.com Refer to: 05673-0034 Re: Bay View Tower Maintenance Ass'n v. Pacifica Bay View Our Client: Pacific Bay View, LLC; Pacifica Companies, LLC; Pac Bay View Inc. Case No.: JAMS - 1240021556 Dear Ms. Silva: Enclosed please find the executed copy of the Limited Indemnity and Release Agreement in connection with the Bay View Tower. Please let us know if you have any questions. Very truly yours, WOOD SMITH, HENNING & BERMAN LLP By: EtRENDA K. RADMACHER SONIA J. TAYLOR BKR/SJT:als Enclosure L E GAL:05673-0034/4439522.1 CALIFORNIA. NEVADA ♦ ARIZONA • COLORADO ♦ WASHINGTON • OREGON ♦ NEW JERSEY ♦ CONNECTICUT ♦ NEW YORK ♦ FLORIDA Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil TO: City Attorney Claudia Gacitua Silva Senior Assistant City Attorney Elisa Cusato Office of the City Attorney MEMORANDUM City Clerk DATE: May 5, 2015 FROM: Ginny Miller, Legal Assistant SUBJECT: Bay View Tower Limited Indemnity and Release Agreement Deputy City Attorney Jennifer Knight Attached for your files, please find an original, fully -executed Limited Indemnity and Release Agreement dated September 18, 2014 between the City of National City and Pacific Bay View, LLC, regarding the Notice issued by the City on September 11, 2014, and the construction work that performed at Bay View Tower. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 ... llllllb ,�UNIYIltAtED AD ‘. CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk PACIFIC BAY VIEW Limited Indemnity and Release Agreement Bay View Tower Ginny Miller (City Attorney) Forwarded Copy of Agreement to Pacific Bay View