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HomeMy WebLinkAboutR-11206 authorizing staff to recover the costs for Higuera Street sidewalk repair in the amount of $209,481 (858 & 860 Higuera St.)R 11206 RESOLUTION NO. 11206 (2021 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, AUTHORIZING STAFF TO RECOVER THE COSTS FOR HIGUERA STREET SIDEWALK REPAIR IN THE AMOUNT OF $209,481 FOR INSTALLATION OF MISSION-STYLE SIDEWALK FROM THE PROPERTY OWNER OF 858 & 860 HIGUERA STREET, AND IN THE EVENT OF NON-PAYMENT FROM THE PROPERTY OWNER, IMPOSING AN ADMINISTRATIVE LIEN ON THE 858 & 860 HIGUERA STREET PROPERTY WHEREAS, Municipal Code Section 12.16.020, which incorporates the procedures set forth in the Streets and Highway Code Division 7, Part 3, Chapter 22, indicates that a property is responsible for the maintenance and replacement of sidewalk adjacent to their property; and WHEREAS, pursuant to Streets and Highway Code Division 7, Part 3, Chapter 22, and thus, Municipal Code Section 12.16.020, the City can compel property owners to repair or maintain sidewalk adjacent to their property if it is in such a condition to endanger persons or property or interfere with the public convenience in the use of such sidewalk; and WHEREAS, in March 2019, a small piece of sidewalk located at 858 & 860 Higuera broke off and fell into the basement below, revealing that the sidewalk was deteriorating, and replacement was urgently needed; and WHEREAS, on November 19, 2019, the City Council authorized staff to advertise for bids for repair of the sidewalk at 858 & 860 Higuera Street (the “Higuera Street Sidewalk Repair Project,” Specification No. 91320), and to formally issue a Notice of Correction to the property owner of 858 & 860 Higuera Street (the “Property Owner”) pursuant to California Streets and Highways Code Sections 5611–5614; and WHEREAS, on January 2, and January 9, 2020, the City issued Notice of Correction letters to the Property Owner, requiring the Property Owner to start construction on or before January 16, 2020 per California Streets and Highways Code Section 5614; and WHEREAS, on March 9, 2020, having received no response from the Property Owner to the Notice of Correction letters, the City authorized the awarded contractor to begin construction of the Higuera Street Sidewalk Repair project and the work was completed on April 28, 2020; and WHEREAS, the total construction cost of the Higuera Street Sidewalk Repair was $275,561; and WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing via webinar on January 12, 2021; and Resolution No. 11206 (2021 Series) Page 2 R 11206 WHEREAS, the City Council has considered all evidence, including the testimony of the property owner, interested parties, and the reports, evaluations, and recommendations by staff, presented to the City Council; and WHEREAS, notices of said public hearings were made at the time and in the manner required by law. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo that: SECTION 1. Findings. The City Council of San Luis Obispo finds: The above recitals are true and correct, and that staff complied with the procedures required by Municipal Code Chapter 12.16.020 and Streets and Highway Code Division 7, Part 3, Chapter 22 for the Higuera Street Sidewalk Repair Project. SECTION 2. Cost Recovery. All project costs shall be conveyed to the private property owner, less a credit to the private property owner in the amount of $66,080. This requires the private property owner to provide the City compensation in the amount of $209,481. The private property owner may pay the City $209,481 in one lump sum payment or staff is authorized to enter into a payment agreement at the election of the property owner and to the satisfaction of the City Attorney and Finance Director, which shall include a requirement that the private property owner waive further lien notifications in the event of default of the payment agreement. Resolution No. 11206 (2021 Series) Page 3 R 11206 SECTION 3. Collection and Lien Authorization. Staff is hereby authorized to recover the costs for Higuera Street Sidewalk Repair Project from the Property Owner in the amount of $209,481. If payment is not received or a payment agreement is not executed Property Owner by March 31, 2021, this resolution shall impose an administrative lien in the amount of $209,481 on the 858 & 860 Higuera Street property. Upon motion of Council Member Pease, seconded by Mayor Harmon, and on the following roll call vote: AYES: Council Member Christianson, Pease, Marx, and Mayor Harmon NOES: Vice Mayor Stewart ABSENT: None The foregoing resolution was adopted this 12th day of January 2021. ____________________________________ Mayor Heidi Harmon ATTEST: ____________________________________ Teresa Purrington City Clerk APPROVED AS TO FORM: _____________________________________ Markie Jorgensen Assistant City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, on _____________________________. ____________________________________ Teresa Purrington City Clerk This Mediated Mutual Release and Settlement Agreement (hereinafter "Mutual Release" or "Agreement") relates to a dispute between Madson Properties, LLC and the City of San Luis Obispo, over the cost of public works of improvement at 858, 860 and 864 Higuera St., San Luis Obispo (herein "the Properties") in San Luis Obispo County, California. The following Parties and Counsel participated in mediation that resulted in this Mutual Release and agree to be bound by its terms: PARTY COUNSEL REFERRED TO AS MADSON PROPERTIES, LLC JANE HEATH MADSON CITY OF SAN LUIS OBISPO J. CHRISTINE DIETRICK SLO N.We-Iffm WHEREAS, a Governmental Claim has been presented on or about June 1, 2021 by Madson to SLO regarding SLO's claim to recover the cost of repair of the city sidewalk located at, adjacent to or abutting the Properties, which SLO disputes said Claim; SLO through City Counsel resolution no. 11206 (2021 SERIES) authorized staff to recover the costs for Higuera Street sidewalk repair in the amount of $209,481 from Madson, which assessment is disputed by Madson (all of which is referred to herein as "the Dispute"); WHEREAS, the Parties now desire to resolve all claims which may exist between them arising out of and relating to the Dispute; NOW, THEREFORE, in consideration of the above premises and the following covenants, it is agreed as follows: 1. Settlement Terms: Madson shall, within 10 days, deliver to the SLO's City Attorney's office the total sum of $75,000.00 payable to "the City of San Luis Obispo." 2. Other than as stated, the Parties shall each bear their own costs, expenses and legal fees. N 3. In consideration of the above, Madson fully release and discharge SLO, SLO's insurers, agents, employees, representatives, attorneys, affiliates and all persons acting by or through or under or in concert with them, from and against any and all claims, causes of action, demands or charges of whatever nature which Madson may have and which, prior to the date hereof or at any time in the future, might arise out of or be related to the claims stated in the Dispute. This Mutual Release is not intended to release any future claims of any third parties which claims might be asserted against Madson or SLO. 4. In consideration of the above, SLO fully releases and discharges Madson, Madson's insurers, agents, employees, representatives, attorneys, affiliates and all persons acting by or through or under or in concert with them, from and against any and all claims, causes of action, demands or charges of whatever nature which SLO may have and which, prior to the date hereof or at any time in the future, might arise out of or be related to the claims stated in the Dispute. This Mutual Release is not intended to release any future claims of any third parties which claims might be asserted against Madson or SLO. 5. All the Parties are fully apprised of the provisions of California law relating to releases and, in particular, §1542 of the California Civil Code which states: "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." Notwithstanding this statutory provision, and to implement a full and complete release, the Parties acknowledge that this Mutual Release is intended to include in effect, without limitation, all claims which they do not presently know of or suspect to exist against the others arising out of or related to the Dispute. 6. This is a Mutual Release and as such shall never be treated as an admission of liability by any party for any purpose. 7. To further their interests, the Parties warrant that no assignment of any claim, cause of action, demand or charge against the other, arising out of or relating to the beforementioned claims, or any other right or claim now existing has been or will be made, and the Parties further agree to indemnify, to defend and hold each other harmless from and against any assignment of claim, cause of action, demand or charge released hereunder. 8. The Parties reserve to themselves the right to initiate and to pursue any legal action necessary to enforce the terms of this Mutual Release. In the event of legal action, the prevailing party shall be entitled to recover from the non -prevailing -2- party, their reasonable attorneys' fees and costs actually incurred. The legal action need not result in judgment by a court of law before the provisions of this paragraph shall come into effect. 9. The Parties agree that this Mutual Release is enforceable pursuant to California law. In the event of such legal action, the prevailing party shall be entitled to recover from the non -prevailing party, their reasonable attorneys' fees and costs actually incurred. The legal action need not result in judgment by a court of law before the provisions of this paragraph shall come into effect. For purposes of enforcement, the Parties waive the confidentiality provisions of California Evidence Code §1119 et seq. 10. The Parties agree that this Mutual Release is enforceable and binding and is admissible and subject to disclosure for purposes of enforcement under Evidence Code section 1123. Therefore, to the extent necessary to enforce this Mutual Release, the Parties waive the confidentiality of this settlement, if any. 11. This Mutual Release contains the entire understanding of the Parties with respect to the subject matter hereof, and no modification or waiver of any of the provisions hereof shall be valid unless it is put into writing and executed by all parties hereto. 12. This Mutual Release shall be governed and construed in accordance with the laws of the state of California. Venue for any action commenced regarding its terms or interpretation shall be in the State court of proper jurisdiction for the County of San Luis Obispo, California. 13. Should any provision of this Mutual Release be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms and provisions shall not be affected thereby and said illegal or invalid part, term or provision shall not be deemed to be part of this Mutual Release. This Mutual Release shall be interpreted according to its plain meaning and not for or against either party as a result of the presumption under Civil Code §1654. 14. This Mutual Release shall be binding on the Parties, their heirs, successors, and assigns. 15. Each of the Parties to this Mutual Release represents and warrants that they have full legal authority to agree to and execute this Mutual Release containing the provisions herein (including those concerning the release of claims) on behalf of any and all persons having a legal and/or beneficial interest whatsoever in the rights, claims, demands, causes of action, injuries, damages, loss, actions, costs, attorneys' fees, loss of services, expenses and compensation released thereby. -3- 16. Each party represents and warrants that in executing this Mutual Release, they have relied on the legal advice of their attorney of choice and the terms of this Mutual Release and its consequences have been completely read and explained to each party by that attorney, and each party fully understands the terms of this Mutual Release. Dated: October 21, 2021 MADSON PROPERTIES, LLC LANA M. JOHNS, Managing Member CITY OF SAN LUIS OBISPO eJ. C RISTINE DIETRICK, City Attorney as authorized by the City Council ATTORNEY APPROVALS AS TO FORM: By: iTH, epresenting: MADSON 1 y. C PISTINE DIETRICK, Representing: SLO C;0