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HomeMy WebLinkAboutContracts & Agreements_156-2003_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement (hereinafter"AGREEMENT') is entered into by and between Petitioner the CITY OF REDLANDS,Respondents DR. JOHN EUGENE JR. AND KARYL EUGENE ("RESPONDENTS"), and ROBERT TRUMMETER ("BUYER") in connection with the settlement of San Bernardino Superior Court Case No. SCVSS 095981 ("Case No. SCVSS 095981"). The previously noted parties are sometimes refer-red to herein as the "PARTIES." RECITALS A. On or about August 9, 2002, the CITY OF REDLANDS recorded a Notice of 4n Pendency ofAdministrative Proceeding with the San Bernardino County Recorder regarding certain real property located at 522 Lugonia Avenue, Redlands, California 92374 (the "SUBJECT PROPERTY") as a result of its administrative action arising out of numerous violations of the Redlands Municipal Code existing on the SUBJECT PROPERTY. B. Subsequently, on or about December 18, 2002,the CITY OF REDLANDS filed a First Amended Petition for Appointment of a Receiver and For Other Relief Pursuant to Health and Safety Code Section 17980.7,Case No.SCVSS 095981,regarding the SUBJECT PROPERTY and recorded a Notice of Pendency of Action for Case No. SCVSS 095981 with the San Bernardino County Recorder. SACRA; ENTOTOA5779 Page 1 of 10 3. RESPONDENTS request that the CITY OFREDLANDS dismiss Case No.SCVSS 095981 without prejudice and in its entirety as it relates to RESPONDENTS so that RESPONDENTS may sell the SUBJECT PROPERTY to BUYER free and clear of all liens and encumbrances. D. The BUYER requests that the CITY OF REDLANDS release the Notice of Pendency of Administrative Proceeding and the Notice of Pendency of Action from title to the SUBJECT PROPERTY, so that BUYER can close escrow and purchase the SUBJECT PROPERTY from the RESPONDENTS free and clear of all liens and encumbrances. E. It is the intention of the PARTIES to resolve and settle their disputes and to discharge all claims, demands, causes of action, obligations, damages, and liabilities both parties may have zn against the other that arise from or are related to Case No. SCVSS 095981. F. This AGREEMENT is a compromise of the claims and liabilities asserted by the PARTIES and shall not be treated as an admission of liability by any party. SACRAMENTOTM5779 Page 2 of 10 AGREEMENT OF PARTIES NOW,THEREFORE, in consideration of the mutual covenants and conditions contained herein, the PARTIES agree as follows: 1. The PARTIES acknowledge that the recitals are true and correct and incorporate by reference those recitals into this AGREEMENT. 2. BUYER and RESPONDENTS shall pay CITY OF REDLANDS the aggregate sum of$5,000.00. Such sum shall be due and payable at the close of escrow. The payment of such sum shall be complete upon the presentation of a valid check made payable to CITY OF REDLANDS in the amount of$5,000.00. 3. BUYER and RESPONDENTS shall pay the Receiver,Steven M.Speier,appointed by the Court in Case No.SCVSS 095981 the aggregate sum of$500.00. Such sum shall be due and payable at the close of escrow. The payment of such sum shall be complete upon the presentation of a valid check made payable to Steven M. Speler in the amount of$500.00. 4. BUYER agrees to repair,or cause to be repaired,each of the items listed on the City's Notice and Order to Repair, dated August 8, 2002, ("REPAIR ORDER")no later than sixty(60) days from the date of this AGREEMENT. The REPAIR ORDER is attached hereto as Exhibit "A" and incorporated herein by reference. SAC RANMENTOTOA5-179 Page 3 of 10 Z:� 5. RESPONDENTS agree to repair,or cause to be repaired,each of the items listed on the REPAIR ORDER in the event the BUYER fails to comply with Paragraph 2, above. 6. BUYER and RESPONDENTS further agree to comply with any and all actions, recommendations and/or decisions of the CITY OF REDLANDS with regard to the common areas for the SUBJECT PROPERTY, as defined in Final Tract Map Nos. 10141 and 10142, and the conditions of approval required by the CITY OF REDLANDS for such maps. BUYER and RESPONDENTS are aware and understand that the actions,recommendations and/or decisions of the CITY OF REDLANDS with regard to the common areas are unknown and yet to be determined, but may include the creation of a Home Owner's Association ("HOA") to maintain the common areas. 7. Upon the execution of this AGREEMENT, the CITY OF REDLANDS agrees to execute and file a Request for Dismissal, dismissing Case No. SCVSS 095981 in its entirety and without prejudice RESPONDENTS. CITY OF REDLANDS reserves the right to re-file this action against RESPONDENTS in the event the terms and conditions of this AGREEMENT are breached. S. REMOVAL OF THE NOTICES: Upon the execution ofthis AGREEMENT,the CITY OF REDLANDS agrees to record a Release of the Notice of Pendency of Administrative Proceeding and a Release of the Notice of Pendency of Action with regard to the SUBJECT SACRAMENTOTOP5779 Page 4 of 10 PROPERTY. 9. The PARTIES shall bear their own attorneys' fees and costs incurred in connection with Case No. SCVSS 095981 and drafting and execution of this AGREEMENT. 10. RESPONDENTS on behalf of itself, its agents, representatives, attorneys, employees, servants, affiliates, stockholders, predecessors, successors and assigns, both past and present,and any person or entity acting by,through,under or in concert with each of them,do hereby release, and forever discharge the CITY OF REDLANDS and each of its, agents,representatives, partners, attorneys, employees, elected and non-elected officials, successors and assigns,both past and present, and any person or entity acting by, through, under or in concert with each of them,or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or equity; suits, debts, liens, contracts, agreements, promises, liabilities, claims, demands, obligations, rights, breaches of contract, breaches of duty of any relationship, acts, omissions, misfeasance, malfeasance, sums of money, compensation, accounts, contracts, controversies, promises,losses,damages,costs, attorneys' fees,expenses of any type,kind,nature,description,or character whatsoever,whether known or unknown,claimed or suspected,existing or contingent,and irrespective of how,why or by reason of what facts,or which the RESPONDENTS now have,ever had, ever claimed to have had, or that hereafter could, might or may be claimed against CITY OF REDLANDS arising out of Case No. SCVSS 095981, 11. LIQUIDATED DAMAGES: The PARTIES agree that in the event of a breach by SACRANIENTOTOA51,79 Page 5 of 10 BUYER and RESPONDENTS, damages incurred by the CITY OF REDLANDS, as a result of such breach,would be difficult to calculate. Therefore, the PARTIES hereby agree that BUYER and RESPONDENTS shall be jointly and severally liable to the CITY OF REDLANDS in the amount of$10,000.00,in the event BUYER and/or RESPONDENTS breach this AGREEMENT. This provision is in addition to the CITY OF REDLANDS' ability to specifically enforce this AGREEMENT. 12. WAIVER OF APPEAL: The PARTIES acknowledge that,by agreeing to the terms and conditions of this AGREEMENT, any and all rights they may have to challenge or appeal any proceeding or order of the CITY OF REDLANDS with regard to the items listed in the REPAIR ORDER or with regard to the common areas of the development which the SUBJECT PROPERTY is located, is forever waived. This waiver expressly includes any right by BUYER or RESPONDENTS to appeal or contest the formation of a HOA. 13. The PARTIES expressly waive the rights afforded under Civil Code section 1542 which provides that: 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. SACRAMEN'TO"WAS779 Page 6 of 10 The PARTIES represent and warrant that they have received the advice of their attorneywith respect to the advisability of making the release provided for herein, and the meaning of California Civil Code section 1542. 14. DISCOVERY OF ADDITIONAL FACTS:The PARTIES to this AGREEMENT, and each of them acknowledge that they may hereinafter discover facts different from,or in addition to,those which they now know to be true with respect to the subj ect matter of this AGREEMENT, and agree that this AGREEMENT shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof 15. REPRESENTATION AND WARRANTIES: The PARTIES to this AGREEMENT, and each of them, warrant and represent to each other that they have not transferred, assigned or hypothecated, or purported to transfer, assign or hypothecate, any of the claims being released hereunder. 16. NO RELIANCE ON OTHERS: The PARTIES to this AGREEMENT, and each of them, acknowledge that in entering into this AGREEMENT they have not relied upon any statement of any other party or any PARTIES' attorneys, and should any party be mistaken in the PARTIES' belief with regard to some issue of fact or law regarding the matters herein, this AGREEMENT shall nonetheless remain in full force and effect and be binding as to each and all of the parties. S1CRAMENTOTOP-6779 Page 7 of 10 17. CONSTRUCTION OF AGREEMENT: The language in all parts of this AGREEMENT shall be in all cases construed as a whole according to its fair meaning and not strictly for or against any party hereto. 18. SUCCESSORS: This AGREEMENT shall be binding upon and inure to the benefit of each party and PARTIES'respective successors,heirs and assigns. The CITY OF REDLANDS reserves the right to record this AGREEMENT with the County Recorder's office once BUYER closes escrow on the SUBJECT PROPERTY. 19. COUNTERPARTS: This Release may be executed in one or more counterparts, (including via original or electronic facsimile or telecopier transmission,which shall be conclusively deemed an original signature or signatures) each of which shall be deemed an original but all of which shall constitute one and the same instrument. 20. ACTION FOR ENFORCEMENT OF AGREEMENT: Ifany party hereto brings an action or other proceeding to interpret or enforce any of the terms of this AGREEMENT, or arising out of a breach of this AGREEMENT,then the prevailing party shall be entitled to recover costs and expenses,including reasonable attorneys' fees, in such amounts as maybe determined by the Court, having jurisdiction thereof, in addition to any other relief awarded. 21. ENTIRE AGREEMENT:This AGREEMENT constitutes the entire agreement and understanding among the PARTIES concerning the subject matter of the AGREEMENT, and SACR1MEN1 YTOP5779 Page 8 of 10 supercedes all prior and contemporaneous agreements,statements,understandings,terms,conditions, negotiations,representations and warranties, whether oral or written, made by any of the parties or their attorneys concerning the matters covered by this AGREEMENT. 22. ADVICE OF COUNSEL: Each of the PARTIES to this AGREEMENT has had the opportunity to obtain the advice of legal counsel of their choice with respect to this AGREEMENT. 23. GOVERNING LAW: This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. 24. AUTHORITY TO SIGN: All individuals signing below on behalf of any entity signing hereby warrant and represent that they have full authority to execute this AGREEMENT on behalf of the entities for which they have signed. SAC RAM ENro�L-'Oj',6 779 Page 9 of 10 IN WITNESS WHEREFORE, the PARTIES hereto have executed or caused this AGREEMENT to be executed by their duly authorized representatives. CITY OF REDLANDS DATED:- August 5 2003 By: Karl N. Haws, Mayor ATTEST: By: I orrie Pol ity Clerk DATED: 2003 RESPONDENT, Dr. John Eugene, Jr. By: His: DATED: 2003 RESPONDENT, Karyl Eugene By: Her: DATED: 2003 BUYER, Robert Trummeter By: His: SACRANIENTOTOY15779 Page 10 of 10 IW VVMyrSS w-B)M=QalT zt o PA'dt'9[US 4s=. bava ==t=ad or c3wed G7CE�Y w be=rev td bpZ$eir d0y na6oxi tit d VOMWWat,' c ry OF iwjw A)M5 2003 r Itwi N zftws. ^TiM: ter: zJocre Oxy=tar,G'�C6�c DASSR—.;j., stiO3 ISC�t• ►SE+t7t, �► Ir. i 2003Z'K}NXXN,�,X4034kxtg�aa J ff 2003 YIU7t '.S60imtTyuhuseescr � 3�o,' to