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Home My Public Portal AboutResolution - 05-10- 20050413 - Landi Settlement Agreemen i i RESOLUTION NO. 05-10 RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT AUTHORIZING APPROVAL OF THE GENERAL AND SPECIAL RELEASE AND SETTLEMENT AGREEMENT, AND AUTHORIZING THE PRESIDENT OR APPROPRIATE OFFICERS TO EXECUTE THE GENERAL AND SPECIAL RELEASE AND SETTLEMENT AGREEMENT, AND AUTHORIZING THE GENERAL MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY OR APPROPRIATE TO THE CLOSING OF THE TRANSACTION (BEAR CREEK REDWOODS OPEN SPACE PRESERVE— LANDI V. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT) The Board of Directors of the Midpeninsula Regional Open Space District does resolve as follows: Section One. The Board of Directors of the Midpeninsula Regional Open Space District does hereby approve the General and Special Release and Settlement Agreement between Curtis Louis Landi and the Midpeninsula Regional Open Space District, a copy of which is attached hereto and b this reference made a art hereof, and authorizes the President of the Board of y p Directors or appropriate officers to execute said documents on behalf of the District. Section Two. The General Manager is authorized to execute any and all other documents necessary or appropriate to the closing of the transaction and implementation of the General and Special Release and Settlement Agreement. Section Three. The General Manager and General Counsel are further authorized to approve any technical revisions to the attached Agreement and documents which do not involve any material change to any term of the Agreements or documents, which are necessary or appropriate to the closing or implementation of this settlement. i i I i RESOLUTION No. 05-10 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on April 13, 2005, at a Regular Meeting thereof, by the following vote: AYES: J. Cyr, M. Davey, L. Hassett, D. Little, K. Nitz, P. Siemens NOES: None ABSTAIN: None ABSENT: N. Hanko ATTEST: APPROVED: c5<A�r�x� Secretary Preside Board of Directors Bo of Directors I, the District Clerk of the Midpeninsula Regional Open Space District, hereby certify that the above is a true and correct copy of a resolution duly adopted by the Board of Directors of the Midpeninsula Regional Open Space District by the above vote at a meeting thereof duly held and called on the above day. Di erk GENERAL AND SPECIAL RELEASE AND SETTLEMENT AGREEMENT This General and Special Release and Settlement Agreement ("Agreement") is entered into by and between Curtis L. Landi ("Landi") and the Midpeninsula Regional Open Space District("District"), and is effective as of the earliest date by which both parties have fully executed it. Recitals A. Landi is the owner of two parcels of land in Los Gatos, California(the "Landi Property"), one of which is adjacent to a parcel of land owned by the District and commonly known as the Bear Creek Redwoods Open Space Preserve ("District Property"). B. The District contends that in or about October of 2001, Landi, or agents of Landi, or both, entered onto the District Property and made certain alterations, including, without limitation, grading, installing a culvert and headwall structure and backfilling a portion of the Aldercroft Creek drainage (the"Landi Modifications"). C. The District further contends that on or about October 14, 2001, it discovered the Landi Modifications and thereafter demanded that Landi either restore the District Property to its previous condition or reimburse the District for the costs of such restoration and that the District subsequently proceeded to restore its property to its prior condition (the "Restoration"). D. Landi contends, inter alia, that the Landi Modifications were necessary to ensure safe passage for Landi and members of his family when accessing the District Property. The District contends, inter alia, that the Landi Modifications were constructed without permission from the District and caused damage to the District Property. Landi and the District acknowledge the existence of such disagreement. E. The District has represented to Landi that the total District costs of the Restoration were $26,162.00, and, on October 5, 2004, filed suit against Landi alleging causes of action for trespass, injury to timber, tree and underwood, and nuisance. The suit is entitled Midpeninsula Regional Open Space District v. Landi and was filed as Case Number 1-04-CV028231 in the Superior Court of the State of California for the County of Santa Clara(hereinafter the"District Suit"). F. The Parties to this Agreement have agreed to settle and resolve the District Suit so as to avoid the cost and burden of further litigation. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. Consideration. Promptly upon execution of this Agreement by the District, Landi will pay the sum of$26,162.00 to the District. Said payment shall be made only by certified check, cashier's check, money order or wire transfer payable to the "Midpeninsula Regional Open Space District." Payment shall be tendered to the District no later than twenty(20) days after the execution of this Agreement. 2. Dismissal. Upon receipt of the consideration identified in Paragraph I above, the District shall cause the District Suit to be dismissed with prejudice. For purposes of this Paragraph, "receipt" shall mean the deposit, and irrevocable crediting of, said monies to a District account. 3. General and Special Release. Provided that Landi fulfills all of the terms identified in Paragraph I above, the District hereby permanently and fully releases Landi, his employees and agents, from any and all claims or liabilities that the District has,or ever had, now or hereafter, arising from or relating to the matters set forth above in Paragraphs B, C and D, and all of those matters set forth in Santa Clara County Case No. 1-04-CV02823 1. This is a full and final Release of any and all claims arising out of the subject matter set forth herein. The undersigned parties agree that, as a further consideration and inducement for this compromise, this Release extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, regarding the matters set forth herein, which are the subject of the District Suit or the subject matter of this Agreement, and all rights under Section 1542 of the California Civil Code are hereby expressly relinquished and waived by the undersigned. Said section reads as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, 4. No Admission of Liability. It is understood and agreed by the parties that this settlement is the compromise of a disputed claim, that the payment hereunder is not to be construed as an admission of liability and that any liability is expressly denied. 5. Without Prejudice. This Agreement only pertains to the resolution of the District Suit and is entered into specifically without prejudice to any other pre-existing rights, obligations and/or defenses that are claimed or may be claimed by either Landi or the District with respect to their respective properties, if any there be. 6. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the Parties hereto. 7. Amendment and Merger Clause. No amendment, modification, or waiver of this Agreement or any provision thereof shall be binding upon the Parties unless it is in writing and executed by each of the Parties. This Agreement constitutes the entire understanding of the Parties with respect to its subject matter and merges herein and supersedes any prior agreement, representation, or promise between the Parties or the Agents with respect to its subject matter. The terms of this Agreement are contractual 2 and not a mere recital, and may be modified only in a writing executed by all Parties. 8. Partial Invalidity. If any provision of this Agreement should be found to be invalid or unenforceable by a court or arbitration panel of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. 9. Choice of Law. The laws of the State of California shall govern this Agreement without reference to conflict of law provisions. 10. Authority to Execute Agreement. Each Party, and the individual executing on behalf of each Party, commits and represents to the other Party that it has full and final authority to execute this Agreement, and that no further action on the part of such Party is necessary to make this Agreement a valid and binding obligation of that Party. 11. Counterparts. This Agreement may be executed in counterparts by authorized representatives of each of the parties and by facsimile signature. It shall become binding and enforceable between and among each signatory as of the date of its full execution. 12. Attorneys' Fees. In the event of any litigation or arbitration to enforce any provision of this Agreement, the prevailing party shall be entitled to all costs and expenses, including without limitation, reasonable attorneys' fees. For purposes hereof, the reasonable fees for attorneys employed by District, either under contract or by statute, shall be based on the fees regularly charged by private attorneys with an equivalent number of years of experience in the subject matter area of the law actively practicing within the San Francisco Bay Area. IT IS SO AGREED: MIDPENINSULA REGIONAL OPEN SPACE DISTRICT Dated: l Lharrflr assett inpensula Regional Open Space District President Board of Directors Approved as to Form: Dated: 3-31 Susan M. Schectman, Esq. Midpeninsula Regional Open Space District General Counsel 3 Attest: Dated: Sal ielfoldt Cl rk, Midpeninsula Regional Open Space District STATE OF CALIFORNIA ){PRIVATE ) ) ss. COUNTY OF SANTA CLARA) On this day of r i'l , 2005,before me, the undersigned, a Notary Public in and for said County and State, personally appeared Larry Hassett, personally known to me or 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 capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. a �'Jsl /> SALLYA.THIELFOLDT Commission i 13412,30 Notary Public.California £ Notary&915lic Santa Clan County My Commission expires *Comm.ins Jan 25,2006 4 CURTIS LOUI Dated: 07 Curtis Louis Landi i Approved as to Form: Dated:4 1B t> Hugh Lemion, Esq. Counsel for Curtis Louis Landi STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) On this I � lday of -t L , 2005, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Curtis Louis Landi, personally known to me or 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 capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. I Notary Public My Commission expires , + 5