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HomeMy WebLinkAboutResolution No. 6456 (Mountain View Homeowners Agmt)RESOLUTION NO. 6456 A RESOLUTION AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT (Storm Drain System Improvements, Mountain View Avenue) THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The 14AYOR and CITY CLERIC are authorized to execute, on behalf of the City of San Rafael, a contract, lease or agreement with Mr. Stepanicich, Mrs. Stepanicich, Mr, Ernest Beckstrom, Mrs. Beckstrom, Mr. John Guenza, Pairs. Guenza, Mr. Al Boro, Mrs. Boro Mr. John Miller, Mrs. Miller, Mr. George Silvestri, Mr. Terry Gilbert, Mrs. Gilbert, Mr. Michael Burke, and Mrs. Burke a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly intro- duced and adopted at a special meeting of the City Council of said City held on Monday the twenty-second—day of November 1982 , by the following vote, to wit: AYES: COUNCILMEPIBERS:Breiner, Frugoli, Jensen, Miskimen & Mayor Mulryan NOES: COUNCILMEMBERS:None ABSENT: COUNCILMEMBERS:None (.jtANNE M. LEONCINI, City Clerk `I , A "110 November 19, 1982 AGREEMENT RE CLEARING AND REPAIR OF DRAINAGE PIPE CITY OF SAN RAFAEL, a municipal corporation (herein- after "CITY"), and the undersigned Mt. View area homeowners, each acting in his or her individual capacity (hereinafter "Homeowners"), hereby agree as follows: 1. CITY and Homeowners have become aware that a water drainage pipe and ditch, located under and upon the pri- vately owned real property of Homeowners situated on the east side of Mt. View Avenue, in the City of San Rafael, County of Marin, are clogged to some extent with mud and debris and are rusted, corroded and in need of certain repairs. 2. Homeowners have retained Robert Walling to inspect said pipe and ditch. His opinions as to needed cleaning and repairs are set forth in his report dated October 28, 1982. 3. Homeowners desire to have the aforementioned pipe and ditch cleared and repaired, as in their opinion they present, in their current state, a potential danger to each of the homes and property in the event water overflows from or undermines the said pipe and ditch as a result of said clogging, leakage and/or collapse; 4. CITY contends all maintenance and repair of said v,^0pY pipe and ditch is the sole responsibility of Homeowners (upon whose property the pipe and ditch are located) and further contends that said pipe and ditch were not installed by CITY, have never before been repaired, maintained or cleared by CITY, that CITY has never exercised, either formally or informally, dominion and control of said pipe and ditch and that CITY never has considered the pipe and ditch to be a public improvement or a part of its storm drainage system; 5. CITY is reluctant to assist in any manner in the clearinq and repairing of said pipe and ditch in part because of the legal implications and ramifications such action would have in pending and future claims and liti- gation asserted against CITY for flood damage, water damage, mud slide damage and similar -damage allegedly arising out of the ownership of surrounding CITY lands and the operation and maintenance of adjacent public improvements. Addition- ally, CITY's legal defense to any such claims could be compromised by CITY's participation (whether solely finan- cial or otherwise) in the clearing and repairing of said pipe and ditch; and 6. The parties hereto, CITY and Homeowners, wish to enter into an agreement whereby CITY shall undertake the clearing and repair of the said pipe and ditch in exchange for Homeowners' agreement that: (a) Homeowners shallnot, in any future claims and/or litigation, assert or imply that CITY's act of clearing and/or repairing of the pipe and ditch pursuant to this agreement constitutes dominion, control or responsi- bility to otherwise maintain or repair the said pipe and ditch; (b) Homeowners shall not, in the future, use this act of clearing and/or repair of the pipe and ditch as the basis for any future claims or demands to clear, repair and/or maintain the said pipe and ditch. NOW THEREFORE: CITY and Homeowners hereby agree that: 7. CITY shall, by December 31, 1982 cause the said pipe and ditch running from 296 thru 246 Mountain Avenue, San Rafael, California, described in Robert Walling's October 28, 1982 report to be cleared of all silt and debris and shall also no later than July 31, 1983, cause the said pipe upon 296 through 246 Mountain View Avenue, San Rafael, California to be repaired; B. As consideration for said work to be performed, and/or caused to be performed, b�r CITY, the undersigned Homeowners, each acting in his or her own individual capacity, hereby agree that: (a) Homeowners shall never assert or contend, in any pending or future claims or litigation, whether based upon inverse condemnation, negligence, nuisance or any other theory of legal recovery, that said work described in paragraph 7 above constitutes or is evidence of CIT'Y's dominion, control, repairs, maintenance, improvement or use 3 of the said pipe and ditch and/or drainage ..ystem; (b) Each homeowner shall never at any time contend, claim or demand that the assistance which is the subject of this agreement somehow constitutes or establishes a precedent whereby future assistance, maintenance, repairs or clearing of the said pipe and ditch is expected, demanded or required by CITY; and (c) That this agreement and its contents shall not constitute or be offered for any purpose as evidence to establish the origin, source, nature or duration of the mud and debris clogging said pipe and ditch or the cause of any needed repairs. 9. By entering into this agreement, each of the undersigned Homeowners further agrees: (a) That each of the said Homeowners is acting in his/her individual capacity, on behalf of themselves, their executors, administrators, heirs, assigns, tenants and successors in interest; (b) That each of the said Homeowners individually understands, accepts and agrees that CITY makes no warran- ties, guarantees or representations whatever as to the effectiveness, fitness, suitability, permanence or duration of the clearing and repair to the said pipe; and (c) The parties acknowledge that the said pipe is rusted, corroded and in need of replacement, and that .any repairs now made to them are only temporary and are not intended to be permanent repairs or a substitute for re- placement of the said pipe. C OPY 10. This written contract contains the entire agree- ment between the parties hereto upon the subject of CITY's assistance in clearing and repairing the previously de- scribed drainage pipe and ditch. 11. The effective date of this agreement is November 1982. THIS AGREEMENT IS EXECUTED in the City of San Rafael, County of Marin, State of California. HOMEOWNERS: Dated: Mr. Stepani4UXch ' Mrs. StepaniGich 296 Mt. View Avenue, San Rafael, CA f V /2,E Mr. Ernesf Bec Strom Mrs'. Backstrom 286 Mt. View Avenue San Rafael, CA Mr. John Guenza Mrs. Guenza 280 Mt. View Avenue, San Rafael, CA Dated: r r. 1 BOKX z -2. — ,- ? . Mrs. Miljeir 264 Mt.GView Avenue, San Rafael, CA Mr. Georg ;jSilvestri;ron behalf rof the Eft to of Silvestri ..�s %�''�/ ;• r?Z'"cle, 260%Mt./View Avenue, San Rafael, CA c— L.Z Mr." Terry`Gilbert Mrs. Gilbert 254 Mt. View Avenue, San Rafael, CA Mr. Michael purke Mrs. Burke 246 Mt. View Avenue, San Rafael, CA Approved: DAVID T. GIANNINI A PROFESSIONAL CORPORATION ;��t�, BY Da i -d T. Giannini Attorney for Homeowners 6 WA� �.:K' Mrs. Boro ' 274 Mt. View Avenue, San Rafael, CA Mr. John Miller i r Mrs. Miljeir 264 Mt.GView Avenue, San Rafael, CA Mr. Georg ;jSilvestri;ron behalf rof the Eft to of Silvestri ..�s %�''�/ ;• r?Z'"cle, 260%Mt./View Avenue, San Rafael, CA c— L.Z Mr." Terry`Gilbert Mrs. Gilbert 254 Mt. View Avenue, San Rafael, CA Mr. Michael purke Mrs. Burke 246 Mt. View Avenue, San Rafael, CA Approved: DAVID T. GIANNINI A PROFESSIONAL CORPORATION ;��t�, BY Da i -d T. Giannini Attorney for Homeowners 6 WA� �.:K' CITY OF SAN RAFAEL Dated: �- ray�or of the City of San Rafael ATTEST: low", _ APPROVED AS TO FORM: Contract Attorn U - wo � � AN M"