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HomeMy WebLinkAboutContracts & Agreements_50-1991_CCv0001.pdf SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE ("Agreement") is made and entered into this 12th day of November, 1991, by and between LARRY CURTI , JANNETTE CURTI, and RUTH CURTI (collectively "Curti") , the LOCAL AGENCY FORMATION COMMISSION OF SAN BERNARDINO COUNTY ("LAFCO"} and the CITY OF REDLANDS ("City") , all parties to the civil action filed in the San Bernardino Superior Court, Central District, Case No. 256894 (the "Action") . This Settlement Agreement is entered into with reference to the following facts: A. On May 16, 1990, LAFCO adopted Resolution No. 2268A for LAFCO Proceeding No. 2572 , which approved a municipal reorganiza- tion that annexed to the City certain properties owned by Curti, including property on which Curti conducts composting operations and fertilizer and landscape supply sales under the business name "One Stop Landscape Supply Center" ("Curti Property" -- legally described on Exhibit "A") . B. On June 15, 1990, Curti filed a Petition for Alternative and Peremptory Writs of Mandate entitled Curti et al. v. Local Agency Formation commission of San Bernardino County, et al. , San Bernardino Superior Court, Central District, Case No. 256894 , pursuant to the California Environmental Quality Act to determine the validity of LAFCO and the City's annexation proceedings. This action is still pending. C. On August 9, 1990, the City, in it$ role as conducting authority, held a public hearing on LAFCO No. 2572 , and adopted Resolution No. 4688 , approving annexation of Curti 's property to the City. On that same day, LAFCO forwarded its Certificate of Completion for Annexation No. 2572 to the Secretary of State. D. On August 21, 1990, Curti filed a Complaint entitled Curti et al. . v. All Persons Interested in theMatterof LAFCO No. 2572 , et al. , San Bernardino Superior Court Case No. 258230. This action was consolidated by order of the court dated November 13, 1990, with San Bernardino Superior Court No. 256894 , with the direction that all further pleadings for the consolidated cases be filed only in Case No. 256894 . E. In March of 1987 , the County of San Bernardino approved a composting operation for the Curti Property covering 20 acres of an approximately 400-acre parcel located in the San Timeteo Canyon areas to convert steer manure, areas soil, digested sewage sludge, yard, forest and construction products waste into soil amendments. San Bernardino County Site Approval SA/86-0164-E273-129 (the "Site Approval") . Subsequently, in August of 1987 , the County issued a Notice of Violation ordering Curti to cease and desist operations of the Curti Property for failure to comply with the conditions of the Site Approval, for operating without necessary permits and for failure to provide required engineering reports. F. On November 2, 1989, the County of San Bernardino Planning commission adopted a negative declaration and approved a revision to the Site Approval (the "Revised Site Approval") for the Curti Property. The City filed an appeal of that decision on November 13, 1989, with the Board of Supervisors for the County -2- DJM79330 challenging, among other things, the Planning commission's finding that the Revised Site Approval was consistent with the County' s General Plan. That appeal is pending. G. The City and LAFCO have denied and continue to deny in every particular the allegations set forth in Curti's consolidated Action. H. Curti, the City and LAFCO have agreed fully and finally to compromise and settle the Action, and any and all claims between them arising out of or related to the Action. NOW, THEREFORE, in consideration of the execution and delivery of this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Curti, LAFCO, and the City agree as follows: 1. Within five (5) days of the latest execution of this Agreement, counsel for Curti shall fully execute and file with the San Bernardino Superior Court, a Request for Dismissal with Prejudice of the entire Action. 2 . Curti's composting operations and fertilizer and landscape supply sales conducted pursuant to the Revised Site Approval shall be conducted in accordance with that approval and the following additional conditions: A. Curti shall restrict all composting operations to the 20-acre site designated by the County of San Bernardino in the Revised Site Approval (the "Site") , unless an expansion beyond the 20-acre site is reviewed and approved by City. -3- DJM79330 B. Composting operations and fertilizer sales shall be conducted at the Site, only, between the hours of 5: 30 a.m. and 5: 30 p.m. , Monday through Saturday, except in the event of an emergency. C. No more than ten (10) truckloads of sludge materials, not to exceed 250 tons, shall be received at the site per day. D. Curti shall install and maintain the landscaping, acceptable to City, to screen all equipment and operations in accordance with the landscaping design plans submitted by Curti and attached hereto as Exhibit IIB. 11 E. Curti shall notify users of the site, by posting, or other reasonable means, that all trucks transporting materials to and from the Site are to be covered and are to travel only on truck routes approved for general commercial vehicles. F. City shall have access to Curti 's operations at the Site during regular business hours to monitor compliance with the terms of this Agreement, any mitigation measures imposed on the operations under the Revised Site Approval, and all other provisions of state and local law. Said monitoring shall be reasonable, consistent with monitoring of mitigation measures of other businesses within the City and consistent with other regulated businesses within the City. Said monitoring shall not interfere with the normal conduct of Curti 's business or customer relations. -4- DJM79330 G. Curti shall restrict its composting operations to sludge materials received from the Santa Ana Regional Water Control Board region sources and Curti shall not receive sludge materials from any other source prior to review and approval of the City. H. Curti shall diligently seek to obtain from the California Integrated Waste Management Board and the Local Enforcement Agency, a Solid Waste Facilities Permit (to the extent required by state law) and shall comply with the terms and conditions of that permit and all mitigation measures imposed for the Project as a result of environmental review for that permit. City shall cooperate as needed in the processing of that permit application. I. Curti agrees to dismiss the Action with prejudice in its entirety as against the City and LAFCO pursuant to paragraph 1, above. once dismissed, Curti agrees further not to undertake any affirmative action in support of any attempts by the City of Loma Linda (or any other city) to annex the Curti Property; Curti also agrees not to take any action to oppose or otherwise hinder any subsequent annexation proceedings by either LAFCO or the City to annex the Curti Property to the City. J. Any change or expansion proposed by Curti to the operations conducted under the Revised Site Approval shall be subject to review and approval by the City. City acknowledges that the operations conducted under the Revised Site Approval are in conformance with all current City regulations, ordinances and general or specific plans. It is acknowledged that the Revised -5- DJM79330 Site Approval requires the use of equipment for the handling, processing, reduction of and transportation of materials. K. Curti agrees to utilize his best efforts to ensure that any business operations on the Curti Property, now or in the future, comply with all local nuisance laws. Nothing in this agreement shall prevent the City from enforcing any applicable nuisance laws, if appropriate, in relation to the Curti Property. 3 . Curti hereby acknowledges and agrees that all of the conditions of the composting operations and landscape supply sales conducted pursuant to the Revised Site Approval set forth above in paragraph 2B-E shall remain in full force and effect pursuant to this Agreement regardless of any subsequent invalidation of LAFCO Proceeding No. 2572 and Redlands Annexation No. 72 unless the Revised Site Approval is amended by the governmental entity with jurisdiction over the Curti Property, at which time the City shall have a right to comment, oppose or be heard on any such proposed amendment. 4 . It is the intention of the City to recognize the existing site approval and current uses of the Curti Property, subject to the conditions outlined in this Agreement, as legal conforming uses in its General Plan and zoning ordinances, including the revised/amended General Plan and zoning code currently under development and consideration by City. In furtherance of that intent, the City agrees to initiate, within 120 days of the date of this agreement, the necessary General Plan and zoning code amendments to include the composting operations, fertilizer and -6- DJM79330 landscape supply sales as permitts , approved uses within the land use and zone designated for the Curti Property. 5. City and LAFCO and Curti, each on their own behalf and on behalf of their successors and assigns, do hereby release and for- ever discharge each other of and from any and all claims, demands, obligations, labilities, promises, acts, covenants, agreements, costs, expenses (including, without limitation, attorneys' fees) , damages, suits, causes of action, and judgments, whatever kind or nature, in law, equity or otherwise, whether known or unknown, suspected or unsuspected, concealed or hidden which the City or LAFCO or Curti may have had, or claim to have had, or now have or claim to have against each other related to the Action; provided, however, that this Release is not intended to be and shall not be construed as a release of any promises, rights or obligations set forth in this Agreement. Further, the parties acknowledge and agree that this release provision does not cover nor should it be construed as releasing (1) obligations, duties, responsibilities, or other conditions imposed by law with which the City, LAFCO or Curti would otherwise have to comply; (2) the parties' respective rights to be heard on matters affecting the Curti Property or other properties or matters of public interest except those matters waived in paragraph 21. E. City shall dismiss its appeal of the County Planning Commission's action on the Revised Site Approval within five (5) days of execution of this Agreement. _7_ DJM79330 7 . City acknowledges that it has inspected the existing building on the property covered by the Revised Site Approval and that said building complies with all City building and safety standards. City will isue4a ilding permit within five (5) days of the signing of this Agreement. 8 . Should any legal action be brought for the purpose of protecting or enforcing its rights under this Agreement, the prevailing party shall recover, in addition to all other relief, its attorneys' fees, costs, and reasonable expenses as set by the Court. 9 . The parties hereby acknowledge that each may hereafter discover facts different from or in addition to those which each now knows or believes to be true with respect to the claims related to the Action herein released, and each agrees that this Agreement shall be and remain in full force and effect in all respects, notwithstanding such different or additional facts. It is the intention hereby to fully, finally, and forever settle and release all such matters and any and all claims relating to the Action which do not now exist, may exist or heretofore have existed by and among the parties subject to the conditions set forth in paragraph 4, above. 10. The parties hereby acknowledge and agree that this Settlement Agreement is a compromise of liabilities which are expressly contested, disputed and denied, and that agreement to the terms and conditions set forth herein does not constitute an admission or concession of any liability whatsoever by any party DJM79330 hereto of any alleged facts or claims whatsoever. Each party further warrants, represents and agrees that it is not relying and has not relied on any representation or statement 'made by any either party hereto, or by them attorneys, with regard to the facts of the controversy herein compromised or with regard to their rights or asserted rights arising out of said facts. Each party hereby agrees to assume the risk of any mistaken fact in connection with the true facts involved in said controversy and with regard: to any of the facts which are now unknown to them relating thereto. 11. Each of the parties hereto has received independent legal advice from their respective attorneys with respect to the advis- ability of making the settlement provided herein, and with respect to the advisability of executing this Agreement, 12. The parties shall bear their own costs, expenses and attorneys' fees with respect to the Action or any proceedings taken prior to or in preparation of the Action. 1 , The parties represent and warrant that there has been no assignment or transfer of any interest in the claims which they may have against one another. 14. The parties agree that if any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement shall remain in full farce and effect and shall in no way be affected, unpaired, or invalidated. .. _ DJ 79331 15. The parties agree that this Agreement contains the entire agreement of the parties hereto as to the matters contained herein, and supersedes all other agreements and understandings, whether written or oral, covering the subject matter hereof. 16. Each of the parties hereto represents and warrants that the person executing this Agreement on its behalf has the full authority and power to execute for and bind each such party. Further, the parties to this Agreement hereby acknowledge and agree that this Agreement, and each term thereunder, shall be binding upon, and shall inure to the benefit of each parties' successors and assigns. 17 . The parties agree that any amendment to or modification of this Agreement shall be deemed to be null and void unless the amendment or modification is in writing and signed by authorized representatives of the parties. The parties hereto agree that California law shall govern the construction, interpretation and enforcement of this Agreement. -10- DJM79330 1 . This Agreement may be executed in counterparts and the collective counterparts shall be treated as a single original . IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement Dated: November 13 1991 "CITY" r' By. ay Ci ands, if 6 r r-.I Attest t Cy C; erg. City of Redl" n6 Dated. j� ' , 1991 "LAFCOlt By: a 'ran, Beard' of D" ectors Lcrca:l Agency oration Commission of San Bernardino County, Attest: Secretary, Local Agency Formation Commission of San Bernardino County Dated: , 1991 "CURTI" By. Larry Curti By. Jannette Curti By: Ruth Curti _11_ JM79330 E.' 18 . This Agreement may be executed in counterparts and the collective counterparts shall be treated as a single original. IN WITNESS WHEREOF, the parties hereto - have executed this Settlement Agreement. Dated: 1991 "CITY" By: Mayor, City of Redlands, California Attest: City Clerk City of Redlands Dated: 1991 "LAFCO" By: Chairman, Board of Directors Local Agency Formation commission of San Bernardino County Attest: Secretary, Local Agency Formation Commission of San Bernardino County Dated: 1991 "CURTI" By; Lar I ry Curti \ BY: rinette Curti BY! Ruth Curti Dim79330 I APPROVED AS TO FORM AND CONTENT: LAW OFFICES OF CYNTHIA LUDVTGSSN Dated: November 1991 . Cy"hia Ludvigsen BEST, BEST & KRIEGER Meredith A. Jury Dated: November 1991. Daniel J. McHugh Patrick H.W. Pearce Christoper Dodson ti -12- ,DJM79330