HomeMy WebLinkAboutContracts & Agreements_49-1989_CCv0001.pdf BEST, BEST & KRIEGER
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September 7 , 1989
HAND DELIVERED
Valery Pilmer
Deputy Planning Officer
San Bernardino County Land
Management Department-EPWA
385 North Arrowhead Avenue
San Bernardino, CA 92415-4181
Re: County of San Bernardino Tract No. 12777
Dear Ms. Pilmer;
As you are aware, on. June 7 , 1989, the City of Redlands sent
a letter to the County stating that the County should not rely on
the City' s February 6, 1989 letter in making a determination on
whether City water or sewer service would be available to Tract
12777, or whether Redlands would have the capacity to serve the
tract. As noted in the June 7th letter, the owner/developer of
the tract had not submitted to the City any calculations on
whether the tract satisfied the "slope-density" requirements of
the City's voter-approved initiative Measure "N, " or its
implementing ordinances and resolutions . Since the date of that
letter, because of factors unique to this tract and the timing of
and manner in which the request for utility services was made, the
City entered into an agreement with the owner/developer which now
allows the City to advise the County as follows:
LAW OFFICES OF
BEST. BEST & KRIEGER
Valery Pilmer
September 7, 1989
Page Two
1 . The County may disregard the City' s February 6, 1989 and
June 7 , 1989 letters as to whether the City has capacity to serve
Tract No. 12777 or whether water or sewer service will be
available for the tract when needed.
2 . By this letter, the City is hereby informing the County
that it now has the capacity to serve water and sewer service to
Tract No. 12777.
3. The provision of service to Tract No. 12777 is expressly
conditioned upon the owner/developer' s compliance with the terms
and conditions of the agreement between the owner/developer and
the City dated August 31, 1989. -A copy of that agreement is
enclosed for your review.
4 . Provided the terms and conditions of the enclosed
agreement are complied with, the City of Redlands will not review
Tract 12777 to determine the tract' s compliance with the
"slope-density" requirements of Measure "N, " nor will it review
individual applications for water and sewer allocations for any of
the lots of Tract 12777 for compliance with the "slope-density"
requirements of Measure "N. "
The City emphasizes that it has not changed any of its rules
or regulations regarding the provision of utility services to
development projects located within the County, or the requirement
that such projects comply with the City's general plan and its
LAW OrrtCE5 Or
BEST. BEST & KRIEGER
Valery Pilmer
September 7, 1989
Page Three
voter-approved initiatives, Measure "N" and Proposition "R. "
Further, the County should not rely on this letter in making a
determination on whether City water or sewer service will be
available for any other development project proposed within the
County. Before conditioning a development project on receiving
water or sewer service from the City, the County, at the earliest
-, date possible, should require the developer to contact the City' s
planning and utility departments to ensure that the developer is
made aware of all conditions of the City for receiving such
service.
If you have any questions about this letter or the City's
position on the provision of utility services to development
projects located within the County, please feel free to telephone
the undersigned.
Very truly yours,
Daniel J. McHugh
for Best , Best & Krieger
City Attorneys for the
City of Redlands
DJM/ph
Enclosure
cc: John E. Holmes, City Manager
Gary Phelps, Utilities Engineer
COMPROMISE AGREEMENT
This Compromise Agreement (this "Agreement" ) is entered into
effective August 31, 1989 by and between S. R. Venture, a joint
venture ( "Developer" ) , and the City of Redlands, California (the
"City" ) with reference to the following facts:
RECITALS
A. Developer is the owner of Tentative Tract Number 12777
( "Tract 12777" ) , which is located in the County of San Bernardino
( "the County" ) adjacent to the City. For several years,
Developer has sought the approval of the County for the
developmentzof Tract 12777, and in particular has sought the
approval of the County for the recording of a final tract map.
B. Tract 12777 is located within the "sphere of influence"
of the City, and in 1988, the City requested that the County
approve Tract 12777 subject to said tract being served by water
and sewer from the City. In response, the County made such water
and sewer service a condition of the approval of the final tract
map for Tract 12777 .
C. Disputes have arisen between Developer and the City
regarding the provision of water and sewer services to Tract
12777 . In the disputes, (hereafter collectively called "the
Disputes" ) the parties contend, or may contend, as follows:
1 . Developer contends:
COMP.AGR/03
(a) that the ballot measure enacted on November 3,
1987, known as "Measure NII ( "Measure "N" " ) does not
apply to Tract 12777, and in particular, the provision
added as a new Section 11 to Proposition "R" , commonly
referred to as the I'slope\density requirement" , does
not apply to Tract 12777;
(b) that the provisions of City Resolution Number 4352
( "Resolution 4352" ) to the extent that they apply to
Tract 12777, do not apply the "slope\density
requirement" to Tract 12777;
(c) that Tract 12777 is in compliance with all
provisions of Resolution 4352;
(d) that by its conduct, including, but not limited
to, the issuance of 30 provisional allocations to Tract
12777, the issuance of a capacity letter dated February
6, 1989 and the issuance of a letter to the County
confirming that water and sewer bonding requirements
have been met, the City is estopped from now asserting
that Measure "N" applies to Tract 12777, and in
particular from asserting that the "slope/density"
provisions of Measure "N" apply to Tract 12777;
(e) that Developer reasonably relied upon the conduct
of the City, including the above described conduct, in
incurring substantial and irrevocable financial
expenses which, if Tract 12777 is compelled to comply
with the "slope/density" requirements of Measure "N" )
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will cause damages impossible to accurately calculate,
but which Developer estimates to be in the millions of
dollars;
(f) that the City acted improperly when it notified
the County on June 7, 1989 that the County could no
longer rely upon the capacity letter of February 6,
1989.
(g) that Tract 12777 has been approved by the County
and such approval does not require provision for
equestrian trails;
(h) that Tract 12777 does not create a drainage
problem to downstream properties for which Developer is
responsible; and
(i) that Developer has exhausted its administrative
remedies .
2. City contends:
(a) that Section 6 of Measure 'IN" requires that
any development outside the City's boundaries
and within its sphere of influence comply
with the City's general plan and plan for
development for the sphere of influence as a
condition of and prior to receiving any
extension of utility service from the City;
(b) that the City's ordinances and
resolutions implementing Measure 'IN" require
the owners/developer of Tract No. 12777 to
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submit a "slope-density" calculation as a
condition of obtaining water and sewer
service from the City;
(c) that through the reasonable exercise of
its police powers, the City has the authority
to refuse to extend utility service outside
its boundaries to carry out the purposes and
goals of its general plan;
(d) that the letter dated February 6, 1989,
to the County of San Bernardino expressly
states that the City makes no commitment to
provide water or sewer service to Tract No.
12777 ;
(e) that the letter dated June 7, 1989, to
the County reaffirmed the lack of commitment
by the City to provide water or sewer service
to Tract No. 12777 and that the letter
properly notified the County of the
owners/developer's failure to comply with the
City's conditions for obtaining water or
sewer service;
(f) that the owners/developer of Tract No.
12777 acted unreasonably and to its own
detriment by incurring financial expenses in
developing Tact No. 12777 with knowledge that
the tract might not receive water or sewer
COMP.AGR/03 4
service from the City;
(g) the owners/developer of Tract No. 12777
failed to exhaust its administrative remedies
by pursuing a revision to the conditions of
its map relating to water and sewer service;
(h) that the City's conduct has been
reasonable, in accordance with law, and that
it has done nothing to result in an estoppel;
(i) that approval of the County
notwithstanding, the owners/developer of
Tract No. 12777 is required to provide for
equestrian trails as Tract No. 12777 is in
the sphere of influence of the City and the
City' s general plan requires such trails; and
( j ) that the development of Tract No. 12777
poses a threat to the public health, safety
and welfare in that, if the final map for
Tract No. 12777 is allowed to record and its
lots thereafter are sold and approved, the
resulting surface drainage will exceed the
existing capacity of City's drainage system
and result in property damage and
environmental harm to downstream properties.
D. As a result of the June 7, 1989 letter from the City to
the County, the County has stopped processing the final map for
Tract 12777, and will not permit the final map to be recorded.
COMP.AGR/03 5
Developer has already expended approximately $750,000 in grading
Tract 12777, and has reservations for all of the proposed lots .
Developer further contends that if the final map is not recorded,
it will not be able to sell the lots, and will lose all profits
anticipated, plus will be damaged in the amount of the expenses,
including grading, already incurred.
E. As a result of these events and disputes, Developer has
notified the City that unless a compromise can be reached,
Developer will be compelled to instigate litigation against the
City for appropriate extraordinary relief and damages. The
parties desire to avoid litigation, and by this Agreement, intend
to forever resolve the disputes between them without any
admission of liability or responsibility.
NOW, THEREFORE, IT IS AGREED:
1. Incorporation of Recitals . The above Recitals are
incorporated by this reference as a part of this Agreement.
2 . Agreement to Compromise. Without any admission of
liability on their part, Developer and City hereby agree to
compromise the disputes between them in consideration for the
agreements set forth below.
3. Agreements of the Developer. In consideration for the
promises of the City as set forth in this Agreement:
(a) Developer hereby forever waives all claims for damages
against the City with respect to the Disputes, including,
but not limited to, delay damages, lost profits, lost
opportunity costs, consequential damages, exemplary damages,
COMP.AGR/03 6
and\or attorneys fees and costs;
(b) Developer hereby agrees to forever forbear from
instituting any action of any type against the City with
respect to the Disputes including, but not limited to, civil
damage actions, administrative mandamus proceedings,
declaratory relief actions and\or administrative proceedings
of any type;
(c) effective only upon execution of this Agreement by the
City and Developer, Developer admits, and will thereafter
continue at all times to admit, that all portions of Measure
"IN" except that portion adding Section 11 to Measure R apply
to Tract 12777 .
(d) Developer agrees to modify Tract 12777 to provide such
easements for equestrian trails as it deems necessary to
meet City and/or County criteria for such trails;
(e) Developer agrees to share with the City the
cost of constructing a portion of the City's drainage
system in accordance with the City's master plan for
storm drains from the termination of Valley View to the
commencement of the Ford Street storm drain which shall
be adequate to handle the surface drainage from Tract
12777 only, provided:
(1) the City shall alone bear the costs of a drainage
system which exceeds that required for Tract 12777;
(2) the City shall waive all other storm drain fees
applicable to Tract 12777 or its individual lots;
COMP.AGR/03 7
(3) Developer's share of such cost shall be
Three Hundred Twenty Thousand Six Hundred
Seventy Dollars ($320,670) ;
Developer shall pay its share of such cost within
twenty (20) days of the recordation of the final
map for Tract No. 12777 .
(f) Developer shall not oppose annexation of Tract 12777 to
the City.
4Agreements of thaLtIn consideration for the
-Y
promises of the Developer as set forth herein:
(a) The City shall not require compliance with that portion
of Measure "N" adding Section 11 to Proposition R as a
condition of any person or entity receiving a water and
sewer allocation for all or any portion of Tract No. 12777;
(b) the City agrees to assist Developer in the design of
equestrian trails and to process the application for
annexation of Tract 12777; and
(c) the City agrees to share equally with Developer the
cost of constructing a portion of the City's storm drains
in accordance with the City's master plan for storm drains
from the termination of Valley View to the commencement of
the Ford Street Storm drain which shall be adequate to
handle the surface drainage for Tract 12777 and further
agrees:
(1) to bear the costs of a drainage system which
exceeds that required for Tract 12777; and
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(2) to waive all other storm drain fees related to
Tract 12777 or its lots; and
(3) that Developers share of the cost is
Three Hundred Twenty Thousand Six Hundred
Seventy Dollars ($320,670) .
(d) the City shall forever refrain from instituting any
administrative or court action against Developer as a result
of the Disputes, and to waive any claim for damages and or
attorneys fees it may have against the Developer as a result
of the Disputes .
(e) to send a written communication to the County,
substantially in the form of the attached letter, said
letter to be sent to the County not later than September 1,
1989 .
(f) in the event a dispute arises between Developer and/or
the City and Western Heights Water Company with respect to
the provision of water to Tract 12777, and said dispute
cannot be reasonably resolved, in Developer's sole dis-
cretion, Developer shall be released, at no cost to it,
from the City's requirement that it provide water to Tract
12777 .
(g) City agrees it shall increase its pool of
,availability of sewer connections, for minor projects
under Resolution No. 4352 for the 1990 calendar year
from 25 to 87 . These 62 additional availability'
shall be reserved and made available to purchasers of
COMP.AGR/03 9
lots within County of San Bernardino Tract 12777 at the
times requested by such purchasers and upon the
purchasers, compliance with the City's rules and
regulations governing sewer service connections.
City shall thereafter continue to reserve and make
available to purchasers of lots in Tract 12777
,availability' in such numbers as will ensure that
sewer connections are available to the purchasers at
times requested by the purchasers .
5. Contingency of Map Recordation. In the event the County
fails to approve or refuses to allow recordation of the final map
for Tract 12777 for reasons relating solely to the issues of the
capacity of the City to provide water and sewer and/or the
application of Section 11 of Measure "N" to Tract 12777, this
Agreement shall become null and void. Developer and City shall
thereafter immediately be released from the terms and conditions
of this Agreement and shall be free to pursue any and all legal
remedies it may have or may have had, prior to execution of this
Agreement, against the City.
6 . Release of All Claims .- Each party hereto hereby
absolutely and forever releases and discharges all other parties
hereto and, each of them, from the following:
(a) Any and all claims, demands, damages, debts,
liabilities, accountings, obligations, costs, expenses, liens,
actions and causes of action, of every kind and nature
whatsoever, whether known or unknown, all of which are hereafter
COMP.AGR/03 10
referred to as "Released Matters" which all or any one of them
presently own, hold or ever owned or held against each other, or
any one of them, related to or by reason of any contract, lien,
liability, matter, cause, fact, thing, act or omission occurring
or existing at any time prior to and including the date hereof in
connection with or in any manner relating to the Disputes; and
(b) All Released Matters which each or any one of them could
ever own or hold against the other or any one of them, at any
time in the future related to or arising out of the matters,
causes, facts, things, acts or omissions alleged in the Disputes .
(c) Without in any way limiting the generality of this
release, each party hereto, and each of them, hereby releases and
absolutely and forever discharges all other parties hereto, and
each of them, and their agents, employees and officers, of and
from any and all Released Matters which are or might have been
the subject of the Disputes;
7 . Release of Unknown Claims. It is the intention of each
party hereto in executing this Agreement that this instrument
shall be effective as a full and final accord and satisfaction
and release 'of each and every Released Matters described herein.
In furtherance of this intention, each party hereto acknowledges
that they are familiar with Section 1542 of the Civil Code of the
State of California which provides 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
COMP.AGR/03 11
settlement with the debtor.
Each party hereto waives and relinquishes every right or benefit
which they might have or may have under Section 1542 of the Civil
Code of the State of California to the full extent they may
lawfully waive such right or benefit pertaining to the subject
matter of this Agreement. In connection with this waiver and
relinquishment, each party acknowledges that they are aware that
they may hereafter discover facts in addition to or different
from those which they now know or believe to be true with respect
to the subject matter of this Agreement, but that it is their
intention hereby fully, finally and forever to settle and release
each and ever Released Matters described herein. In furtherance
of such intention, the agreements given herein shall be and
remain in effect as full and complete general releases with
respect to the subject matter of this Agreement, notwithstanding
the discovery or existence of any such additional or different
facts .
8 . Binding on Successors . The agreement contained herein
shall release, in addition to each party hereto and each of them,
(a) their legal successors, assigns and licensees, (b) each of
their respective attorneys, officers, directors, shareholders,
agents, and employees; (c) each of their past present and future
parent, subsidiary or affiliated entities and their respective
attorneys, officers, directors, shareholders, agents and
employees; and (d) the heirs, executors, administrators, legal
successors and assigns of each of the foregoing set forth in (a)
COMP.AGR/G3 12
through (d) hereof.
9 . Authority to Execute. Each party hereto hereby warrants
and represents to the other, and each of them, that they have the
sole right and exclusive authority to execute this Agreement;
that no other person or entity has any right whatsoever in
connection with any Released Matters; and that they have not
heretofore assigned, transferred or purported to assign or
transfer to any person whosoever not a party hereto any Released
Matters which they have released in this Agreement. Each party
hereto will1indemnify and hold the others and each of them
harmless from and against any claim, demand, damage, debt,
liability, accounting, obligation, cost, expense, lien, action or
cause of action (including the payment of attorney's fees and
costs actually incurred whether or not litigation be commenced)
based on, in connection with or arising out of any breach of the
aforementioned representations and warranties or any claim of
right or assignment or transfer of any Released Matters which
they have released in this Agreement.
10. Representation by Counsel. Each party hereto
acknowledges and warrants that they have been represented by
independent counsel of their own choice throughout all
negotiations which preceded the execution of this Agreement.
Each party has read or had read to them all of this Agreement and
had it explained to them by their attorney. Each party fully
understands all of the terms used herein and understands their
significance.
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11. Entire Agreement. This Agreement constitutes the
entire agreement and understanding concerning the subject matter
hereto between the parties and supersedes and replaces all prior
negotiations, proposed agreements and agreements, whether oral or
written. Each of the parties hereto acknowledges that neither
any other party, any agent or attorney of any other party, nor
any other person whomsoever has made any promise, representation
or warranty whatever, express or implied, not contained herein
concerning the subject matter hereof to induce them to execute
this Agreement, and each of the parties hereto acknowledges and
warrants that they are not executing this Agreement in reliance
on any promise, representation, or warranty not set forth herein.
12. Governing Law. This Agreement shall in all respects be
interpreted, enforced and governed by the laws of the State of
California.
13. Execution in Counterparts . This Agreement may be
executed in counterparts, each of which shall be deemed to be a
part of the original. This Agreement shall not be effective for
any purpose until signed be all parties hereto.
14 . No Amendment or Modification Without Prior Approval.
This Agreement may not be amended and/or modified in any manner,
COMP.AGR/03 14
including, but not limited to, unilateral action, oral
understanding and/or legislative action without the express
written agreement of all parties to this Agreement.
SR VENTURES
By.
Henry Stickney
By: -' f
Phillip R. Broderick, as
President of Redlands
Financial Services, Inc. ,
a California corporation
CITY OF REDLANDS
Carole Beswick, Mayor
ATTEST:
x
Cityt rk
COMP AGRI03 15