HomeMy WebLinkAboutD-2817:.
When Recorded Mail To:
Howard B. Golds
Scott W. Ditfurth
Best, Best & Krieger LLP
3390 University Avenue, 5" Floor
P.O. Box 1028
Riverside, CA 92502
Title(s)
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COPY01 Document Recorded
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Notice of Agreement Running with Land Affecting Real Property
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HOWARD B. GOLDS, Bar No. 112626
howard.golds@bbklaw.com
bbklaw.com
SCOTT W. DITFURTH, Bar No. 238127
scott.ditfurth@bbklaw.com
BEST BEST & KRIEGER LLP
3390 University Avenue, 5th Floor
P.O. Box 1028
Riverside, California 92502
Telephone: (951) 686 -1450
Facsimile: (951) 686 -3083
Attorneys for Defendant
CITY OF ARCADIA
EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — GLENDALE COURTHOUSE
ERIC T. CHEN and SYLVIA C. CHEN,
Plaintiffs,
V.
CITY OF ARCADIA, et al., a California
corporation; and DOES 1 through 20,
inclusive,
Defendants.
Case No. BC504634
NOTICE OF AGREEMENT RUNNING WITH
LAND AFFECTING REAL PROPERTY
LOCATED AT 2205 CANYON ROAD,
ARCADIA, CALIFORNIA 91006 AND 2143
CANYON ROAD IN ARCADIA,
CALIFORNIA 91006
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I COMES NOW Defendant City of Arcadia, a public entity, and hereby provides formal
2 1 notice that the parties to the instant litigation have entered into an agreement and release
3 regarding the above - entitled matter.
4 NOTICE is hereby given that pursuant to the attached Settlement and Release Agreement
5 regarding the real property located at 2205 Canyon Road, Arcadia, California 91006 ( "Property "),
6 Plaintiffs Eric T. Chen and Sylvia C. Chen (collectively "Plaintiffs "), who are the owners of the
7 Property, have entered into a binding agreement under which Defendant City of Arcadia and
8 Plaintiffs, their associates, owners, predecessors, successors, heirs, executors, administrators,
9 council members, assigns, agents, directors, officers, partners, employees, representatives,
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0 10 lawyers, and all persons acting by, through, under, or in concert with any of them are released
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o- l l from any and all liability or legal responsibility, in equity or at law, for any damages or any
own 12 diminution in value of the Property that has occurred or will occur in the future, any suits, debts,
—aQXo 13 liens, liabilities, claims, demands, and damages of any nature whatsoever, known or unknown,
�:�tcs 14 fixed or contingent related in any way to the Property, except as expressly provided in the
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wz 15 Settlement and Release Agreement, The Property is more particularly described as follows:
to
0 � 16 Lot 54 of Tract No. 23145, in the City of Arcadia, County of Los
M 17 Angeles, State of California, as per map recorded in Book 631,
18 Pages 90 -92 inclusive of maps, in the office of the County
19 Recorder of said County ( "Affected Land ").
20 Under the Settlement and Release Agreement, the City of Arcadia or any successive
21 owner of the real property located at or about 2143 Canyon Road in Arcadia, California ("City
22 Property ") shall be under an ongoing duty to maintain and repair a supportive wall, in a
23 workmanlike manner, that protects the slope that ascends from the City Property to the Property,
-14 and reasonably maintain the slope ascending to the Property. Pursuant to California Civil Code
25 § 1468, the Settlement and Release Agreement runs with both the Property and the City Property.
26 The City Property is more particularly described as follows:
27 APN 5765 - 002 -900: 2143 Canyon Roast. Arcadia. CA 91006
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28 I hat portion of the North\�est one quarter of fractional Section 15.
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Township 1 North, Range 11 West, San Bernardino Base and
Meridian in the City of Arcadia, described as follows:
Beginning at the most westerly corner of Lot 53 of Tract No.23145
as per map recorded in Book 631, pages 90 to 92 inclusive of Maps
in the office of the County Recorder of Los Angeles County;
thence S 320 03' 18 'W 260.00 feet; thence S 400 51' 07 "W
217.29 feet; thence S 470 12' 06" E 315.00 feet to a point in the
northwesterly line of Lot 55 of said Tract 23145 distant N 390 52'
00" E, 56 feet from the most westerly corner of Lot 55; thence
along the northwesterly line of Tract 23145 N 390 52' 00" E 98.00
feet; thence N 90 28' 38" W 83.95 feet to the Point of Beginning.
FURTHER NOTICE is hereby given that the Plaintiffs and Defendant City of Arcadia
have agreed and thereupon did covenant with one another, to forever release and discharge any
and all liability or legal responsibility for any future damages to the Property except as set forth in
the Settlement and Release Agreement, which is attached hereto as Exhibit "A."
FURTHER NOTICE is hereby given that the Settlement and Release Agreement, which is
attached hereto as Exhibit "A" shall constitute a covenant against the Property and the City
Property and shall discharge any and all liability against Plaintiffs and the City of Arcadia for any
damages, claims, or repairs, present or future, related to the Property, except as set forth in the
Settlement and Release Agreement. The Releases set forth in the Settlement and Release
Agreement shall run with the Property and City Property in perpetuity.
Dated: May 12 .2014
BEST BEST & KRIEGER LLP
B*- ,.
ITOWAR013. COLDS
SCOTT W. D[TFURTFI
Attornevs for Defendant
CITY OF ARCADIA
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Dated: May 7, 2014
OBAGI & STODDER
Z2RTr.0 'AG 1, JR.
Aor
EHEN
S . CHEN .
III
State of California,
County of Los Angeles,
On May 7, 2014, before personaIly appeared Zein E. Obagi, Jr.,
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of
which the person, or the entity upon behalf or which the person 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.
Notary Seal
jj
sro r I BE TTENCOURT
Comm-won # 2003133
z Notary Public - Cahlornia z
;,✓ / Los Angeles County
M Comm. Expires Jan 30. 2017
Signature1
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA }
ss.
COUNTY OF RIVERSIDE )
On May 12, 2014 _ before me, Joy S. Ashwood Notary Public ,
DMa Name Arid T do Of Ofkw to p 'Jw Da. Ndary Pubkl)
personally appeared Scott W. Ditfurth
Who Name d S.pnerp l
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
I certify under penalty of perjury
pars ra h is true and correct
JOYS. A
SWAM
COWAMlore I =1171161
"my POW - CAa w
Riwnlde cow"
L19 ---- MY
Corns F, a Au il 2017
under the laws of the State of California that the foregoing
WITNESS my hand and officia
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ Individual
❑ Corporate Officer
TitWs)
0 Partner(s) 0 Limited
O General
• Attorney -In -Fact
• Trustee(s)
O Guardian /Conservator
❑ Other:
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number Of Pages
Date Of Document
Signer(s) Other Than Named Above
EXHIBIT "A"
SETTLEMENT AND RELEASE AGREEMENT
1. PARTIES AND DATE.
This Settlement and Release Agreement ( "Agreement ") is entered into by and between
Plaintiffs Eric T. Chen and Sylvia C. Chen (collectively "Chens ") on the one hand, and
Defendant City of Arcadia ( "City ") on the other hand. The Chens, together with the City, shall
be referred to herein as the "Parties."
2. RECITAM
2.1 Chens own real property located at 2205 Canyon Road in Arcadia, California
( "Property "). Immediately adjacent to the west and southwest of the Property, and below it is a
cut slope ( "Slope ") that is owned by City and terminates at certain City -owned real property
( "City Property'), at or about 2143 Canyon Road in Arcadia, California, on which water storage
tanks are located. Chens claim that the Slope has eroded and/or subsided in a manner that has
caused damage to the Property, continues to threaten augmented damage to the Property, and that
such erosion or subsidence was caused by the City's improper design, construction and
maintenance of the rP .gl Property on which the water otorago tutrks urc; located elkVot the Slope.
City disputes Chens claims regarding the Slope.
2.2 On April 2, 2013, Chens filed a lawsuit entitled Eric T. Chen and Sylvia C. Chen
v. City of Arcadia, et al., Los Angeles Superior Court, Case No. BC504634 (the "Action "),
asserting causes of action against City for Inverse Condemnation, Declaratory Relief,
Negligence, and Nuisance, all of which were premised upon purported damage caused to the
Property by reason of the alleged erosion or subsidence of the Slope (the "Claims ").
2.3 Thereafter, on May 23, 2013, City filed an Answer to the Action, denying any and
all claims asserted by Chens.
2.4 Chens, on the one hand, and City on the other hand, now desire to fully and
finally settle and resolve any and all rights, claims, disputes, causes of action and alleged claims
which currently exist in favor of the Parties, including, but not limited to, all claims arising out of
the Action, the Claims or the Property. The Parties expressly intend that this settlement shall
further pertain to any claims for interest, attorneys' fees, witness fees, and/or all other costs or
expenses associated with the Action.
3. TERaIMS.
3.1 Recitals. The Recitals are incorporated into and are a part of this Agreement.
3.2 Settlement. In consideration of this Agreement and the promises set forth herein,
the Parties agree that one appropriate and proper method to repair, stabilize and preserve the
integrity of the Slope is to construct a "shotcrete" wall (`'Wall ") along those portions of the dope
that the City deems appropriate, from time to tithe in its own discretion. The location of the
initial Wall City intends to construct, which the Chens approve, is depicted in Attachment "I ".
City will, at its sole expense, constrict the Wall and oversee its construction. The Parties farther
agree that an integral purpose ot, the 'Nall is to protect the Slope from water, water inv;tsiun and
heavy vegetation that could threaten the exterior bedrock foundation of the Property with
disintegration.
3.2.1 Construction. City will have exclusive control of the design, bidding,
construction and maintenance of the Wall, including any additions or modifications
thereto, except that City shall ensure that (1) the Wall is constructed in a workmanlike
manner for its intended purpose, and (2) the Wall's construction is completed by October
1, 2014. City shall notify Chens in writing upon full completion of the construction of
the Wall. Said notice shall be deemed complete upon its deposit in the U.S. Mail with
appropriate postage paid and addressed to 2205 Canyon Road, Arcadia, California,
91006,
3.2.2 Maintenance and Repair. City, or its successor with regard to the City
Property, shall be under a continuing and ongoing duty to maintain and repair all parts of
the Wall in a workmanlike manner, notwithstanding whether the Wall is located on the
Property or City Property, and a duty to reasonably maintain the Slope. The City agrees
to permit the Property's owner(s), the Property's owner(s)' designees or experts, access
to the City Property up to twice a year, upon 10 days written notice, to inspect the Wall,
at the Piul.retty's owner(s)' sole cost. Such access shall be at the option of the owner(s)
of the Property, and shall not ever be deemed waived if not exercised by the Chens or
their successors. Nothing set forth in this Agreement shall provide the Property
owner(s)' authorization to do any destructive testing, or any other testing, of the Wall,
other than a visual inspection of the Wall.
3.2.3 Construction. Maintenance and Repair Easement Chens shall grant the
City a temporary construction easement in order for the City, its agents, contractors,
consultants, and employees to perform any work required to construct the Wall, or in
order to perform any maintenance or repair of the Wall. City shall give Chens reasonable
written notice prior to any entry onto the Property necessitated by the temporary
construction easement for the construction of the Wall, repair of the Wall or maintenance
of the Wall, which such notice shall be no less than five business days prior to the access
sought.
3.2.1 Permanent Easement. If necessary, upon the City's written request, Chens
shall grant a permanent easement for construction and repair of not more than 1.5 feet for
any portion of the Wall that is required to be permanently placed on the Property, and the
Chens will execute any and all documents necessary to create and record said easement.
3.3 Dismissal. Within ten (10) days of execution of this Agreement, Chens shall lice
a request for dismissal, with prejudice, as to the entirety of the Action, indicating that the action
has been dismissed pursuant to Cal. Civ. Proc. Code § 664,6.
3.4 Release. Contingent upon hill completion of the Wall, as set forth in paragraph
3.2.1, and the City's continual discharge of its duty to maintain and repair the Wall with
reasonable care, aitd the City's continual discharge of its duty to reasonably maintain the Slope,
the Parties hereby mutually release and billy, finally and forever discharge one another and their
associates, omiers, t,redeck!ssors, successors, heirs, executors, ,administrators, council members,
assigns, agents, directors, officers, partners, employees, representatives, lawyers, and all persons
acting by, through, under, or in concert with the City (hereinafter collectively called "Additional
Rcleasees'� of and from any and all suits, debts, liens, claims, liability or legal responsibility, in
equity or at law, for any and all damages sustained by either party, whether known or unknown,
existing or contingent, including but not limited to any diminution in value of the Property, that
has occurred or will occur in the future and which are related to the Action, the Claims, the
Property, the Slope and/or the construction, maintenance or repair of the Wall, except as
otherwise set forth in this Agreement.
3.5 Waiver of Civil Code Section 1542. Contingent upon full completion of the Wall,
as set forth in paragraph 3.2.1, and the City's continual discharge of its duty to maintain and
repair the Wall with reasonable care, and the City's continual discharge of its duty to reasonably
maintain the Slope, it is the intention of the Parties that the release entered into as part of this
Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses,
attorney's fees, damages, losses, claims, liabilities and demands of any character, nature and
kind, known or unknown, suspected or unsuspected, to be so barred; in furtherance of which
intention the Parties expressly waive any and all right and benefit conferred upon them by the
provisions of Section 1542 of the California Civil Code, which reads 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.
The Parties hereby acknowledge that the foregoing waiver of the provisions of Section
1542 of the California Civil Code was bargained for separately. The Parties hereto expressly
agree that the release provisions herein contained shall be given full force and effect in
accordance with each and all of their express terms and provisions, including but not limited to
those terms and provisions relating to unknown or unsuspected claims, demands and causes of
action hereinabove specified. The Parties specifically agree to assume the risk of the subsequent
discovery or understanding of any matter, fact or law which if now known or understood would
in any respect have affected this Agreement.
3.6 Notice of Action. Chens hereby represent and warrant that they are the sole
owners and title - holders of the Property. It is acknowledged and agreed that this Agreement is
binding on Chens as well as their heirs, assigns, transferees, and successors in interest to the
Property. It is the affirmative duty of each of the Parties, their heirs, assigns, transferees and
successors in interest to inform and give notice to any and all subsequent buyers, lenders or
transferees who may seek to acquire title or an interest in the Property or the City Property that a
lawsuit for damages was filed by the Chens under case number BC504634, and to provide said
case number along with a copy of this Agreement to any person or entity who seeks or is in fact
acquiring title to or an interest in the Property so that said person or entity is made aware of and
placed on notice of the Claims, the Action and this Agreement.
3.7 Recordation. Upon execution of this Agreement, City shall record with the Los
Angeles Comity Recorder's Office a Notice of Release and Settlement concerning; this
:Agreement in the chain of title for the Property ind the City Property. Said recording shall
identify and be against the Property. A true and correct copy of the Notice of Recordation is
attached hereto as Exhibit "A."
3.8 Indemnification. The Chens agree to indemnify, defend and hold the City and the
Additional Releasees harmless from any and all claims made against the City and the Additional
Releasees if, and only if, those claims proximately result from the Chens' failure to disclose or
concealment of this Settlement Agreement to their immediate successor(s) in interest with regard
to the Property. In addition, each successor to the Chens shall indemnify, defend and hold the
City and the Additional Releasees harmless from any and all claims made against the City and
the Additional Releasees if, and only if, those claims proximately result from that person(s)
failure to disclose, or concealment, of the terms of this Settlement Agreement to that person's or
persons' immediate successor(s) in interest with regard the Property. Indemnification, defending
and holding harmless, here, means paying any and all litigation costs, including any damages
awarded or pain in settlement or by judgment.
The City, likewise, agrees to indemnify, defend and hold the Chens and their successors
(collectively, the Property Owners) in interest to the Property harmless from any and all claims
made against the Property Owners if, and only if, those claims proximately result from the City's
failure to diwlosc or concealment of ads Settlement Agreement to its immediate successor(s) in
interest with regard to the City Property. In addition, each successor to the City shall indemnify,
defend and hold the Property Owners harmless from any and all claims made against the
Property Owners if, and only if, those claims proximately result from that person(s) failure to
disclose, or concealment, of the terms of this Settlement Agreement to that person's or persons'
immediate successor(s) in interest with regard the City Property. Indemnification, defending and
holding harmless, here, means paying any and all litigation costs, including any damages
awarded or pain in settlement or by judgment.
3.9 Integrated AgLeemc tit. This Agreement is the final and entire agreement between
the Parties concerning the subject matter of this Agreement. All agreements of the Parties with
respect to the subject matter hereof are in writing and supersede all prior written and oral
agreements and understandings of the Parties, or their predecessors, as it relates to the Property,
including the settlement agreement entitled "Notice of Mutual Release and Settlement
Agreement Concerning Real Property Located at 2205 Canyon Road, Arcadia, California,
91006," recorded in the official records of Los Angeles County on December 5, 2007 as Doc.
No. 20072664598. 'rhis Agreement cannot be modified except by a written document signed by
all of the Parties. None of the Parties arc relying upon any other negotiations, discussions or
agreements in connection with the subject matter of this Agreement. rhis is a Vully integrated
agreement.
3.10 Representation and Warranty. The Parties hereby represent and warrant that they
are the sole and rightful owner of all rights, title, and interest in every claim and other matter
which is released herein and have not heretofore assigned or otherwise transferred any interest in
any claim that they may have against any uther party or any other party's respective aftiliatcs,
subsidiaries, predecessors and that is released and discharged pursuant to this Agreement.
3.11 Independent Representation by Counsel. fhe Panics represent and warrant that in
executing this Agreement they hirve relied ;ulely upc�iti their own judgment. belief and
knowledge, and the advice and recommendations of their own independently selected legal
counsel, concerning the nature, extent and duration of their rights and claims hereunder, and that,
except as provided herein, they have not been influenced to any extent whatsoever in executing
this Agreement, by any representations, statements or omission pertaining to any of the matters
herein contained by any party or by any persons representing any party.
3.12 Goycrging Law. This Agreement shall in all respects be interpreted, enforced and
governed by and under the laws of California.
3.13 Construction. This Agreement has been jointly negotiated and drafted. The
language of this Agreement shall be construed as a whole according to its fair meaning, and not
strictly for or against any of the Parties.
3.14 Executing in Counterparts. This Agreement may be executed in counterparts by
the Parties and shall become effective and binding upon the Parties at such time as all of the
signatories hereto have signed the original or a counterpart original of this Agreement. All
counterparts so executed shall constitute one Agreement, binding upon all of the Parties hereto,
notwithstanding that all of the Parties are not signatory to the original or the same counterpart.
Copies of this executed Agroomcia :►hull be dccuicd origi+uals, raid citfur►xable like the original
Agreement.
3.15 Attorneys' Fees. Each party shall bear his/her /its own attorneys' fees,
investigation expenses, expert or consultant fees, survey fees, and litigation costs incurred as a
result of the Action, and in connection with negotiating this Agreement except that the prevailing
party in an action to enforce the obligations hereunder shall be entitled to an award of attorneys'
fees and costs, including experts' fees, unless such party fails to submit to mediation within 34
days of service of a written demand by the other party to submit to mediation, which such
demand shall include a copy of this Agreement and be served by U.S. Certified Mail with return
receipt requested, or other such reliable form of service requiring the receiving party's signature
to confirm receipt.
3.16 Severability. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid, illegal, unconstitutional or unenforceable, such portion shall be deemed
severed from this Agreement and the remaining parts shall remain in full force and effect as if no
invalid or unenforceable }provisions had been part of this Agreement.
3.17 No Admission of Liability. It is understood and agreed by the Parties that this
Agreement is a compromise of a disputed claim or disputed causes of action. This Agreement,
with its terms and conditions, shall not be construed as an admission of liability by the City in
that the City expressly denies any liability related to the Action or the Property.
3.18 Survivability of Covenants. All representations and agreements set forth in this
:agreement shall be deemed continuing and shall survive the execution date of this Agreement,
and no act or omission by any Party hereto or any beneficiary to this Agreement shall be deemed
a waiver of any of the rights hereunder.
3.19 Covenant to 'fake Further Actions Necessary. The fatties hereby agree to
::xecute Such other Lloct►mcnts and to take ;uch other 7►ctionti ,►s may he e.►,on!►hly necessary to
tiulher the purposes of this Agreement, with the Parties to bear their own costs and attorneys'
tees for these additional actions.
3.20 Successors and Assigns. Each of the terms of this Agreement is binding upon
each of the Parties and their respective predecessors, assigns, executors, administrators,
representatives, principals, insurers, agents, and successors-iii-interest.
3.21 Covenants Running with the Land, Each of the covenants hereto shall run with
both the Property and City Property as covenants entered into pursuant to Cal. Civil Code §
1468.
3.22 Fffective Date. This Agreement shall be deemed effective as of the date it is
executed by all Parties.
3.23 Authority. The undersigned representative of the City represents and warrants that
he is duly authorized tinder the City's charter and by the Arcadia City Council to enter into this
Settlement Agreement.
>~AC'H OF THE 1_INDERSICTNFD HFRF.RY i1Fri.ARFS THAT 'fHF TERMS OF THIS
SETTLEMENT AGREEMENT AND GENERAL RELEASE HAVE BEEN COMPLETELY
READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF
VOLUNTARILY ACCEPTS THE TERMS WITH THE fNTEN'C TO BE LEGALLY BOUND
"THEREBY.
2014 By:
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Dated: P r(zi 7 . 201 4 CITY OF ARCADIA
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CITY MANAGF..R
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Dated.��L U
, 2014
Dated: O/ ,P44 9 , 2014
ATTEST:
D h
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Cl CLERK
APPROVED AS TO FORM:
STEPHEN P. DEITSCH
CITY ATTORNEY
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