HomeMy WebLinkAbout08-20-2020 Maino Final Settlement Agreement Sueldo-Granada
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SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
THIS SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS ("Agreement") is
made, by and among Thomas Michael Maino and Gena Estelle Maino, Trustees of the Maino
Family Revocable Trust u/d/t March 16, 2016, Joanna Maino Whitcher, who acquired title as
Joanna C. Maino, a Married Woman as to her Sole and Separate Property, Michaeline C. Maino,
Trustee of the M.M. Maino Family Trust/Exemption Trust, u/d/t dated October 1, 1990, and,
Michaeline C. Maino, Trustee of the M.M. Maino Family Trust/Marital Trust, u/d/t dated October
1, 1990 (Collectively the “Mainos") and the City of San Luis Obispo (the “City”) The foregoing
parties are sometimes collectively referred to as the “Parties” or individually as a “Party”.
RECITALS
I. WHEREAS, a subdivision tract map was recorded for Tract No. 703, Book 10,
Page 50 Maps, on October 31, 1980, by which the owners of Tract No. 703 offered to dedicate
right of way, an extension of Sueldo Street, along the westerly boundary of Lot 40 (the “Right of
Way”) to the City;
II. WHEREAS, the San Luis Obispo City Council approved the final map for Tract
No. 703 by Resolution No. 4306 (1980 Series);
III. WHEREAS, the Mainos’ predecessors in interest, the Maino Family Revocable
Trust (the “Trust”) purchased Lot 40 of Tract No. 703 (“Lot 40”) in 2001;
IV. WHEREAS, conditions of approval in the Trust’s application to develop office
buildings on Lot 40 of Tract No. 703, commonly known and reflected on the Trust’s application
as 3595 Sueldo Street, adjacent to the Right of Way (ARC 116-03) in 2004 required the Trust to
construct street improvements to the Right of Way;
V. WHEREAS, the Trust completed all improvements to the Right of Way identified
in its conditions of approval (ARC 116-03) and per the approved Miscellaneous Public
Improvement Plans per City file number M04-008 in 2006, with the exception of the requirement
to construct an intersection on the Right of Way (the “Intersection Improvement”).
VI. WHEREAS, there is a present need to complete the Intersection Improvements, as
the adjacent tract is undergoing installation of public improvements and such development is
conditioned upon the construction of a connection to the Right of Way across Lot 40 to provide
for through traffic;
VII. WHEREAS, there now exists a dispute as to legal ownership of the Right of Way
between the Parties and a dispute as to the rights and obligations of the parties for constructing the
Intersection Improvements to the Right of Way (the “Disputes”);
VIII. WHEREAS, the Parties desire to resolve the Disputes and all ancillary and
potential claims between and among the Parties and their predecessors in interest, respective
present and former parent companies, indirect and direct subsidiaries and affiliates, divisions,
officers, directors, partners, members, managers, shareholders, employees, agents, successors,
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assigns, and any of their respective legal representatives and insurers, to provide for this release of
all claims relating to the Right of Way, pursuant to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, intending to be legally bound, and in consideration of the mutual
promises, consideration and covenants set forth herein, the Parties hereby consent and agree as
follows:
1. The above listed Recitals are true and correct and incorporated herein by reference and the
Parties represent that they have the authority to execute this agreement and to bind and
release the interests referenced in this agreement, including any interests that may have
been held by predecessors in interest.
2. Conditioned upon both Parties’ compliance with the terms of this Agreement, the Mainos
shall:
a. Obtain an encroachment permit from the City to construct the Intersection
Improvements, as revised and shown in the revised approved plans, incorporated
by reference and attached hereto as Exhibit A (the “Approved Plans”), within
fourteen (14) days of final execution of this Agreement;
b. Submit a Traffic Control Plan which maintains the roadway closure of Sueldo
Street’s southern terminus for the duration of construction as well as incorporates
and necessary traffic control for the Intersection Improvements to the City for
review and approval within fourteen (14) days of final execution of this Agreement;
c. Submit a critical path construction schedule for completion of the Intersection
Improvements to the City within fourteen (14) days of final execution of this
Agreement;
d. Construct the Intersection Improvements in substantial conformity with the final
Approved Plans and the City’s Standard Specifications and Engineering Standards,
within sixty (60) working days following the City’s issuance of encroachment
permits and the City’s written acceptance of the Traffic Control Plan and Schedule,
based upon the final Approved Plans;
e. Provide the City insurance coverage for the Intersection Improvements in
compliance with City Standard Specification 7-1.06 prior to construction of
Intersection Improvements, and maintain insurance coverage throughout the
duration of construction;
f. Coordinate with, and notify, adjacent private property owners regarding the
Intersection Improvements, both prior to and during construction;
g. Communicate to tenants and surrounding property owners of any design changes
to the Right of Way by the Intersection Improvements as well as any construction
delays.
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h. Agree that the City’s recordation of acceptance of the Right of Way as offered in
the subdivision tract map for Tract No. 703 reflects: the Parties’ agreement as to
the City’s ownership and control of the Right of Way; full and final resolution of
any dispute regarding ownership of the Right of Way; the uncontested record of the
City’s ownership and control of the Right of Way, notwithstanding any prior
agreement, instrument or record between the Parties or any third parties regarding
the Right of Way; waiver of any present or future right to contest such ownership.
3. The City. Conditioned upon both Parties’ compliance with the terms of this Agreement,
the City shall:
a. Record an acceptance of the Right of Way as offered in the subdivision tract map
for Tract No. 703 within five (5) days following the final execution of this
Agreement;
b. Issue an encroachment permit to the Mainos, with all related permit and inspection
fees waived, to construct the Intersection Improvements;
c. Pay the Mainos the total sum of $228,643.05, (the "Settlement Amount") within
five (5) days following the recording of the acceptance of the Right of Way.
d. The Settlement Amount shall be paid by check made payable to Maino
Construction Company, Inc.
4. The Mainos’ Release of Claims. Except for the obligations set forth in this
Agreement, and effective upon the City’s timely delivery of the Settlement Payment, the Mainos,
for themselves, and for their heirs, beneficiaries, attorneys, administrators, executors, officers,
directors, shareholders, joint venturers, partners, spouses, children, insurers, employees,
predecessors, successors and assigns, subsidiaries, affiliates or other related person or entity does
hereby expressly release, acquit and forever discharge the City and their present and former parents,
indirect and direct subsidiaries and affiliates, divisions, partners, officers, directors, members,
managers, shareholders, employees, agents, successors, assigns, future owners of any and all
property that is or was involved in the Disputes or referenced in the claims, and any of their
respective legal representatives, of and from all and any manner of claims, actions, causes of action,
liability, judgments, lawsuits, debts, dues, accounts, agreements, claims for monetary damages and
demands whatsoever, whether in law or in equity, whether known or unknown, whether asserted
directly or indirectly, derivatively or otherwise, for, upon, or by reason of any matter, cause or thing
whatsoever arising from or related to (1) the Disputes, including the claims made or that could have
been made in the Disputes; and (2) any acts or omissions occurring prior to the date of this
Agreement relating to the subject matter of the Disputes.
5. The City’s Release of Claims. Except for the obligations set forth in this
Agreement, and effective upon the Mainos’ timely completion of the Intersection Improvements in
substantial conformity with the Approved Plans and the terms of this Agreement, The City, for
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itself, and for its, attorneys, administrators, executors, officers, insurers, employees, predecessors,
successors and assigns, does hereby expressly release, acquit and forever discharge the Mainos and
their affiliates, beneficiaries, partners, officers, directors, members, managers, shareholders,
employees, agents, successors, assigns, and any of their respective legal representatives, of and
from all and any manner of claims, actions, causes of action, liability, judgments, lawsuits, debts,
dues, accounts, agreements, claims for monetary damages and demands whatsoever, whether in law
or in equity, whether known or unknown, whether asserted directly or indirectly, derivatively or
otherwise, for, upon, or by reason of any matter, cause or thing whatsoever arising from or related
to (1) the Disputes, including the claims made or that could have been made in the Disputes; and
(2) any acts or omissions occurring prior to the date of this Agreement relating to the subject matter
of the Disputes.
6. Compromise of Disputed Matter. By entering into this Agreement, the Parties
agree and understand that this is a compromise and settlement of disputed claims, and that there is
no implication or admission of liability or wrongdoing whatsoever by the Parties with respect to
the issues involved in the Disputes. The Parties further agree and understand that by entering into
this Agreement, the existence and execution of this Agreement shall not be considered, nor be
offered or received into evidence or otherwise filed or lodged in any proceeding, except as may be
necessary to prove the terms of this Agreement, or to enforce this Agreement, nor may it be
considered or deemed admissible as an admission by the Parties of any liability, wrongdoing, error,
or violation of law.
7. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the officers, directors, managers, employees, agents, attorneys, insurers, consultants,
parties, affiliates, related entities, representatives, beneficiaries, successors and assigns of the
Parties.
8. No Other Representations. Each Party to this Agreement acknowledges that no
other Party or agent or attorney of any other Party, or any other person has made any promise,
representation, or warranty whatsoever, expressed, implied, or statutory, not contained herein,
concerning the subject matter hereof, to induce the execution of this Agreement, and each Party
hereby acknowledges that it has not executed this Agreement in reliance on any promise,
representation, or warranty not contained herein.
9. Civil Code Section 1542. It is understood and agreed as between the Parties hereto
that all rights under Section 1542 of the California Civil Code are hereby expressly waived as to
the claims released in this Agreement. Said section reads as follows:
A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor
at the time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the debtor
or released party.
10. Indemnity. City shall indemnify Mainos, and the future fee owners of Lot 40
(collectively “indemnitees”) and hold them harmless as to any and all claims arising from, third
party loss or injury (collectively “claims”) caused or claimed to be caused by the City’s actions, or
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the City’s ownership and control of the right of way, except that the City shall have no responsibility
to the Mainos for claims arising from Mainos’ negligence, gross negligence or intentional
misconduct (including that of their agents, heirs, beneficiaries, attorneys, administrators, executors,
officers, directors, shareholders, joint venturers, partners, spouses, children, insurers, employees,
predecessors, successors and assigns, subsidiaries, affiliates or other related person or entity). This
indemnity shall include attorneys’ fees and court costs, if any, incurred by indemnitees in defending
themselves against any and all such claims, provided that such defense is provided by legal counsel
reasonably acceptable to the City.
11. Not Construed Against Any Party. This Agreement shall be construed without
regard to the Party or the Parties responsible for its preparation. Any ambiguity or uncertainty
existing herein shall not be interpreted or construed against any party based upon the Party having
drafted the provision at issue.so
12. Entire Agreement. This Agreement constitutes the entire Agreement of the Parties
and may not be amended, modified, or extended without a writing signed by all Parties and
specifically amending this Agreement, and supersedes all prior or contemporaneous agreements,
discussions, or representations, oral or written, with respect to the subject matter of this Agreement.
Each of the Parties hereto states that it has read each of the paragraphs of this Agreement and that
it understands the same and understands the legal obligations created thereby and has authority to
execute this Agreement on behalf of the Party indicated.
13. Headings. The headings in this Agreement are intended for the convenience of the
Parties and shall not affect the interpretation of any portion of this Agreement.
14. Counterpart Originals. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original, and all of
which counterparts taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties hereto.
MAINOS
_________________________________
Thomas Michael Maino Trustee of the Maino
Family Revocable Trust u/d/t March 16, 2016
Date:_____________________________
_________________________________
Gena Estelle Maino, Trustee of the Maino
Family Revocable Trust u/d/t March 16, 2016
Date: ____________________________
_________________________________
Joanna Maino Whitcher, who acquired title as
Joanna C. Maino, a Married Woman as to her
Sole and Separate Property
Date: ____________________________
_________________________________
Michaeline C. Maino, Trustee of the M.M.
Maino Family Trust/Exemption Trust, u/d/t
dated October 1, 1990
Date: ____________________________
THE CITY OF SAN LUIS OBISPO
____________________________
Shelly Stanwyck
Assistant City Manager
Community Services
Date: _____________________________
APPROVED AS TO FORM:
________________________________
J. Christine Dietrick, City Attorney
_____________________________
Paul F. Ready
__________________________________
Michaeline C. Maino, Trustee of the M.M.
Maino Family Trust/Marital Trust, u/d/t
dated October 1, 1990
Date: ____________________________
general notes:SUELDO AND GRANADAINTERSECTION IMPROVEMENTSAPPROVED BYSPECIFICATION NO.DATESHEETMatthew A. Horn, City Engineer R.C.E. C63611 Approved DateJULY 2020FILE NO./LOCATIONJULY, 20201. ALL WORK SHALL BE PERFORMED IN CONFORMANCE WITH THESE PLANS, SPECIALPROVISIONS PREPARED FOR THIS PROJECT AND THE 2018 CITY OF SAN LUIS OBISPOSTANDARD SPECIFICATIONS AND ENGINEERING STANDARDS, IN CONJUNCTION WITHTHE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION STANDARDSPECIFICATIONS AND STANDARD PLANS, 2015 EDITION (UNREVISED).2. IT SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR OR PERMITTEE TO CONTACT"UNDERGROUND SERVICE ALERT OF NORTHERN/CENTRAL CALIFORNIA" BY PHONE AT8-1-1 FORTY-EIGHT (48) HOURS PRIOR TO START OF CONSTRUCTION FOR LOCATIONOF POWER, TELEPHONE, OIL AND NATURAL GAS UNDERGROUND FACILITIES.CONTRACTOR OR PERMITTEE SHALL ALSO CONTACT THE APPROPRIATE AGENCYFOR THE LOCATION OF CABLE T.V., WATER, SEWER, DRAINAGE OR UNDERGROUNDFACILITIES.3. THE CONTRACTOR SHALL POSSESS A CLASS "A" OR "C12" LICENSE AT THE TIME THEBIDS OPEN AND DURING THE ENTIRE LENGTH OF THE CONTRACT.4. THESE PLANS DO NOT INDICATE ALL EXISTING FACILITIES IN THE VICINITY OF THEPROPOSED WORK SUCH AS EXISTING IRRIGATION HEADS AND LINES, SHRUBBERYAND VEGETATION, ETC. THE CONTRACTOR MUST USE CARE TO AVOID DAMAGE TOANY EXISTING IMPROVEMENTS OR VEGETATION IN THE VICINITY OF THE WORK, ANDMUST REPAIR ANY FACILITIES DAMAGE DURING CONSTRUCTION TO THESATISFACTION OF THE ENGINEER.5. WHERE TRIMMING OF EXISTING VEGETATION IS REQUIRED DURING CONSTRUCTIONIT MUST BE DONE IN A MANNER TO REMOVE THE MINIMUM POSSIBLE AMOUNT OFVEGETATION AND LEAVE THE REMAINING IN AN ATTRACTIVE CONDITION.CONTRACTOR TO HIRE CERTIFIED ARBORIST FOR TREE TRIMMING TO ALLOWNECESSARY EQUIPMENT CLEARANCE. NOTIFY THE ENGINEER IN ADVANCE OF THEWORK.6. THESE PLANS DO NOT INDICATE ALL OVERHEAD LINES. CONTRACTOR SHALL TAKECARE DURING CONSTRUCTION TO AVOID CONTACT WITH OR DAMAGE TO EXISTINGOVERHEAD LINES.7. ANY EXISTING UTILITIES AND IMPROVEMENTS THAT BECOME DAMAGED DURINGCONSTRUCTION SHALL BE COMPLETELY RESTORED TO THE SATISFACTION OF THEENGINEER AT THE CONTRACTOR'S SOLE EXPENSE.8. CONTRACTOR SHALL CONTACT ALL UTILITY COMPANIES AND AGENCIES WITHSERVICES IN THE AREA PRIOR TO COMMENCING CONSTRUCTION ACTIVITIES ANDCOORDINATE WITH THE UTILITY COMPANIES AFFECTED BY CONSTRUCTION.9. PRIOR TO THE START OF CONSTRUCTION, THE CONTRACTOR'S LICENSED LANDSURVEYOR SHALL FILE A CORNER RECORD IN THE OFFICE OF THE SAN LUIS OBISPOCOUNTY SURVEYOR FOR EACH EXISTING MONUMENT WITHIN THE PROJECT AREATHAT HAS THE POTENTIAL TO BE DISTURBED.10. PROTECT SURVEY MONUMENTS IN PLACE DURING CONSTRUCTION. THECONTRACTOR SHALL BE RESPONSIBLE FOR ALL COSTS ASSOCIATED WITH THEREPLACEMENT OF DAMAGED OR DISPLACED SURVEY MONUMENTS AND SHALLNOTIFY THE CITY FIVE (5) WORKING DAYS PRIOR TO RESTORING MONUMENTS.MONUMENTS SHALL BE RESET BY A CALIFORNIA LICENSED LAND SURVEYOR ANDSHALL INCLUDE PREPARING AND FILING A CORNER RECORD WITH SAN LUIS OBISPOCOUNTY.11. ALL STRIPING AND MARKINGS SHALL BE THERMOPLASTIC PER CALTRANS STANDARDPLANS A20A, A20B, A20C, A20D, A24A, A24B, A24C, A24D, AND A24E. ANY STRIPING NOTMARKED FOR REMOVAL SHALL BE PROTECTED IN PLACE.12. ALL CURB, GUTTER, AND SIDEWALK IMPROVEMENTS SHALL BE COMPLETED PRIOR TOTHE START OF PAVING WORK.13. CONCRETE SIDEWALKS SHALL CONFORM TO ENGINEERING STANDARD 4110.14. REMOVAL AND REPLACEMENT OF EXISTING CONCRETE SHALL CONFORM TOENGINEERING STANDARD 4910.15. RUBBER FLEX CURB MUST BE TRAFFIC LOGIX SUPERFLEX CURBING OR APPROVEDEQUAL. BLACK COLOR WITH REFLECTIVE MARKINGS.16. ROOT TRIMMING PER CITY STANDARD SPECIFICATIONS SECTION 77-1.03A(2)(g).17. MODIFICATION TO THE EXISTING IRRIGATION SYSTEMS MUST BE APPROVED BY THEENGINEER PRIOR TO WORK. REFER TO SECTION 20-1 OF THE CITY STANDARDSPECIFICATIONS AND CITY ENGINEERING STANDARD 8660 FOR ADDITIONAL LAYOUTREQUIREMENTS.san luis obispo county, californiaindex to planssheet no. description12COVER SHEETPLANSReference Documents:City Standard Specifications - May 2018 EditionCity Engineering Standards - May 2018 EditionCaltrans Standard Plans and Specifications - 2015 Edition21ofCOORDINATES FOR THIS PROJECT ARE CALIFORNIA COORDINATESYSTEM NAD83, CALIFORNIA ZONE 5, US SURVEY FEET, ASDETERMINED BY GPS OBSERVATIONS ON POINTS 8102, AND 8201"MONTEREY" AS SHOWN ON THE CITY OF SAN LUIS OBISPO"HORIZONTAL CONTROL NETWORK" (JULY 2020).THE ELEVATIONS SHOWN HEREON ARE NAVD88 AS DETERMINED BYMEASUREMENTS ON BM #377 AS SHOWN ON THE CITY OF SAN LUISOBISPO "2019 BENCHMARK SYSTEM" HAVING PUBLISHED ELEVATIONOF 132.13'.(6)6,22513$/'((15 *(7,16,(*((55 &/,,967$,$17(522),)/&$$:(++27 75 $1 01R&Exhibit A to Settlement Agreement
12" LIMIT LINEREMOVE (E)DRIVEWAY APRON(128.29 TC)(127.71 FL)CITY SPECIFICATION NO.DATE:PROJECT TITLE:SHEET TITLE:ofSHEET NO.DESIGNED BY:DRAWN BY:CHECKED BY:APPROVED BY:SCALE:PLAN FILE NO. / LOCATIONHN1" = 8'OPTION 2 (CROSS GUTTER)SUELDO AND GRANADA INTERSECTION IMPROVEMENTSHNBNMHJULY 2020220SCALE IN FEET816SEE ABOVE FOR CONTINUATIONSEE BELOW FOR CONTINUATIONCIVILNo. C 84733HAI-LONG Q. NGUYE N
Exhibit A to Settlement Agreement
CERTIFICATE OF ACCEPTANCE
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THIS IS TO CERTIFY that the interest in real property dedicated by the attached Subdivision Tract
Map, Tract No. 703 (64' Street Easement), Book 10, Page 50 Maps, dated October 31,1980, from
Hibshman and Cook, a California Corporation is hereby accepted by the undersigned officer on
behalf of the City Council pursuant to authority conferred by Resolution No. 5370 (1984 Series),
recorded June 15, 1984, in Volume 2604, Official Records, Page 878, San Luis Obispo County,
California, and the Grantee and/or Grantee's Successor consent to recordation thereof by its duly
authorized officer or his agent.
016 2,0 12zc
Date
CITY OF SAN LUIS OBISPO
Mayof Heidi Ham#
ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document.
State of California }
County of San Luis Obispo }
On Lzo ,before me,
Date Name and Title of the dfB
personally appeared, \�CQ ,I
%(' yv.C) v11--
Name of Signer(s)
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal, KEVIM It, CHIUST{�N
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Sin L�+. /Y�ti/�tCDunt/
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My C/mm. EAO'?m Auj 22. 2013
Signature
fignatlire o Ndtary Pu 1C Place Notary Seal Above