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HomeMy WebLinkAboutContracts & Agreements_5A-1991_CCv0001.pdf ON a 71 When Recorded Mail To: Howard B. Golds Best, Best & Krieger P.O. Box 1028 3750 University Avenue Riverside, California 92502 SETTLEMENT AGREEMENTAND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement" is entered into this 14#h day of February, 1991, by and between the City of Redlands (the "City'") and Anton Merle, Sr. , Elisabeth Merle, Anton Merle, Jr. , Theresa Merle, ,john Merle and Elizabeth Merle (collectively, "the Merles") . RECD A. on or about April 2, 1971, the City and Zeiner- Higdon Corporation ("Zeiner-Higdon") entered into a written agreement by which the City agreed to defer the requirement that Zeiner-Higdon construct certain street, curb and gutter, sidewalk, drainage, streetlight and other improvements pursuant to the City"s approval of Conditional Use Permit No. 172 (the "1972 Agreement") . The 1971 Agreement was recorded in the official records of San Bernardino County on April 19, 1971 at book 7£49, page 652. A true and correct copy of the 1971 Agreement is attached hereto, marked as Exhibit "A"" and incorporated by this reference. B. On or about December 19, 1972, the City and Zeiner- Higdon entered into a second written agreement by which the City agreed to defer the requirement that Zeiner-Higdon construct -w t certain street, curb and gutter, sidewalk, drainage, streetlight and other improvements pursuant to the City's approval of Conditional Use Permit No. 188 {the 111972 Agreement" ) . The 1972 Agreement was recorded in the official records of San Bernardino County on December 26, 1972 at book 8088, page 291. A true and correct copy of the 1972 Agreement is attached hereto, marked as Exhibit 'B" and incorporated by this reference. C. The City contends that both the 1971 Agreement and the 1972 Agreement were intended to impose a lien upon certain real property located in the City of Redlands, California (the "Property") . A true and correct legal description of the Property is attached hereto as Exhibit "C". The Property is otherwise known as the "Lugonia Fountains Mobilehome Park". D. On or about June 1, 1978, the Merles acquired the Property and are as of the date of this Agreement the sole owners in fee simple. E. On or about January 29, 1985, the City demanded that the Merles commence construction of the street, curb and gutter, sidewalk, drainage, streetlight and other improvements deferred by the 1971 Agreement and the 1972 Agreement. When the Merles refused to construct these improvements, the City commenced on June 19, 1987, that certain legal action entitled City of 2 Anton Merles , San Bernardino Superior Court Case No. 238308 (the "Action") . F. The parties desire to resolve and settle, once and for all times, all present and past controversies, claims, causes of action or purported causes of action, differences or disputes, NSG20697 -2" i f both real and potential, arising between the parties as a result of the 1971 Agreement, the 1972 Agreement and the Action. G. This Agreement is a compromise of the claims and liabilities alleged by the parties in the Action and shall never be treated as an admission of liability by any of the parties for any purpose. AGREEMENT 1. Upon execution of this Agreement by all parties, it shall be recorded in the official records of San Bernardino County, California. It is the intent of the parties that this Agreement shall be enforceable against the Merles and any and all assignees, heirs, mortgagees and successors in interest. The Merles agree that the 1971 Agreement and 1972 Agreement shall also remain in full force and effect and shall also be binding upon any and all assignees, heirs, mortgagees and successors in interest. 2. The Merles hereby agree to construct all of the street, curb and gutter, sidewalk, drainage, streetlight and other improvements that were included in the conditions of approval for Conditional. Use Permit Nos. 172 and 188 and which were deferred by the 1971 Agreement and the 1972 Agreement. The Merles agree that the construction of all such improvements shall be done solely at their expense. The exact location, specification and design of all improvements required by this Agreement shall be subject to the approval of the City of Redlands and shall be in compliance with all City rules, regulations and standards for the construction of n such improvements. The permission or approval of the City needed for the construction of any of these improvements shall not be x unreasonably withheld. 3 . Notwithstanding the provisions of Paragraph 2 above, the .Merles shall commence construction of all of the improvements p ents required under the 1971 Agreement (consisting of a portion of Pennsylvania Avenue) and a portion of the improvements required under the 1972 Agreement (consisting of the remainder of Pennsylvania Avenue and the intersection of Pennsylvania Avenue and Grove Street) not later than June 1, 1991. All improvements required by this paragraph shall be completed on or before October 30, 1991. 4. Notwithstanding the provisions of Paragraph 2 above, the Merles need not construct the remaining improvements described by the 1972 Agreement (generally consisting of the remainder of Grove Street) prior to December 4, 1992 . If, after December 4 1992, the City determines that the improvements not constructed pursuant to Paragraph 3 above are "necessary" as defined by Paragraph 5 below, the City shall serve a written demand on the Merles as described by Paragraph 23 and the Merles shall immediately begin construction of all such improvements and shall complete construction in a reasonable time, not to exceed two (2) months from the date of the City's demand. 5. The term "necessary" for purposes of this Agreement shall mean: (a) If the Merles cause any permanent structure to be constructed upon that certain vacant real property owned by the Merles which is presently bounded by HBG20697 "4" i a (f Lugonia Avenue on the South, Grove Street on the East, Pennsylvania Avenue on the North and the Easterly Boundary of the Park on the West. (b) If Grove Street is constructed so that it intersects with San Bernardino Road in the City of Redlands. For purposes of this paragraph, any extension of Grove Street, whether or not built to full street width and whether or not including sidewalks, curb and gutter or streetlight improvements, which intersects with San Bernardino Road, shall fulfill this requirement. (c) If certain real property generally loca- ted East of Grove Street, North of Pennsylvania Avenue, West of Judson Street and South of San Bernardino Road is developed by the construction of any permanent residential or commercial structure. (d) If the City hires the traffic engineering firm of Greer & Company (or any other firm acceptable to the Merles, such acceptance not to be unreasonably withheld) who then finds that the total Southbound traffic on Grove Street at a Point just north of Lugonia Avenue exceeds 1040 cars per day on average. 6. Notwithstanding Paragraphs 4 and 5 above, the improvements required under the 1972 Agreement that were not constructed pursuant to Paragraph 3 of this Agreement shall be immediately constructed by the Merles at any time after December 4, 1995, upon issuance by the City of a written demand to the Merles. The City shall have sole and complete discretion to issue a written demand after December 4, 1995. The issuance of this written demand shall in no way be dependent upon any finding that the improvements are "necessary" as defined by this Agreement or otherwise and HSG20697 -5- regardless of the cost of construction or the burden such construction may place upon the Merles. 7. If the Merles do not begin construction of the improvements required by Paragraph 2 of this Agreement on or February 15, before 1991, then on or before February 22, 1991, they must Post with the City, in a form and in a manner acceptable to the City, certificates of deposit in the amount of $155, 000 to secure their performance under this Agreement. The certificates of deposit so posted shall be retained by the City until such time as all improvements required by the 1971 Agreement and the 1972 Agreement have been fully constructed and accepted for maintenance the City. Certificates of deposit equal to w* e r � $77, 500��aa�._breturned to the Merles by the City after completion of those improvements required by Paragraph 3 above. 8. If the Merles fail to post the certificates of deposit required by Paragraph 7 above on or before February 22 1991, or if they fail to keep the certificates of deposit in full force and effect until such time as all the improvements required by Paragraph 1 above have been completed, then all of the improvements required by the 1971 Agreement and the 1972 Agreement shall be immediately constructed by the Merles upon demand by the City. 9. If the Merles fail complete any of the improvements required by paragraph 2 of this Agreement to the reasonable satisfaction of the City, or if they fail to complete any of the improvements within the time requirements of Paragraph 3 of this Agreement, or if they fail to fully comply in any manner with any HBG20697 -6- written demand by the City to build improvements as provided in paragraphs 4, 5 and 5 of this Agreement, including but not limited to their failure to complete any improvements in a reasonable time not to exceed two2 ( ) months from the date of any demand, the City in its sole and complete discretion may make demand on the certificates of deposit required by Paragraph 7 of this Agreement for payment of the actual cost to the City of constructingor f completing all improvements not completed by the Merles. 10. On or before October 30, 2991, the Merles shall pay the City the sum of $17,500 which represents partial payment for the attorneys , fees incurred by the City in the Action. 11. All improvements constructed by the Merles pursuant to the 1971 Agreement, the 1972 Agreement and this Agreement shall be subject to .inspection and approval by the City. Approval, of the improvements .is not to be unreasonably withheld by the Cit Merles hereb Y The y acknowledge and agree that if during the course of inspection of the improvements, the City determines that the improvements, or any portion thereof, are defective or have been inadequately constructed, the Merles will repair or reconstruct n inadequate or d the defective portions of the improvements at their sole expense. 12 . The terms of this Agreement shall in no way restrict or interfere with the ability of the City to require the Merles or their successors in interest to immediately construct any street or other public improvement, whether or not construction is already required by this Agreement as a condition of approval pproval of any subdivision map, development agreement, conditional use permit or 118620697 -7- other discretionary approval for the development of any real Property owned by the Merles or their successors in interest. This paragraph specifically applies to any approval sought by the Merles or any successor in interest regarding the development that certain vacant real property described in Paragraph 5(a) above. 13 • Upon the Merles completion of all improvements required by Paragraphs 2 and 3 of this Agreement (or in lieu of the improvements required by Paragraph 3, the posting of the certificates of deposit required by Paragraph 7) and the Merles payment of attorneys ' fees required by Paragraph 10, the City and the Merles shall jointly file a dismissal, with prejudice, of the City's complaint and the Merles ' cross-complaint filed in the Action. 14. Except as provided in Paragraph 10 above, the parties agree to bear their own costs and attorneys' fees involved in the prosecution or defense of the Action. 15. Except as provided above, the Merles and each of them, on their own behalf and on behalf of their agents, attorneys, heirs, representatives, executors, successors and assigns, hereby release and forever discharge the City, its eouncilmembers, employees, attorneys, agents and representatives of and from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes and controversies of every character and kind, known or unknown, suspected or unsuspected, existing or contingent, latent or patent, asserted or not yet asserted:, which the Merles or any of them may now own or hold or at any time owned HSG20697 -8- i r or held, or shall or may hereafter own or hold arising out of or in any way connected with any fact, matter or thing whatsoever occurring that is in any way related to the subject matter of this Action with the exception that the Merles do not release and discharge the City from any and all claims arising from or related to the enactment and enforcement of Ordinance 1857 of the Redlands Municipal Code respecting the stabilization of mobilehome park rent increases, whether or not related to the subject matter of this action. 16. Except as provided above, the City on its own behalf and on behalf of its councilmembers, employees, attorneys, agents and representatives hereby release and forever discharge the Merles, their agents, attorneys, representatives, spouses, heirs, executors and administrators then from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes and controversies, of every character and kind, known and unknown, suspected or unsuspected, existing or contingent, latent or patent, asserted or not yet asserted, which the City may now own or hold or at any time owned or held, or shall or may hereafter own or hold arising out of or in any way connected with any fact, matter or thing whatsoever occurring that is in any way related to the subject matter of the Action. 17. The Merles represent and warrant that they have sought the advice and counsel of their attorneys and they are relying solely on such advice. 3 HOG20697 -9- Y . This Agreement cannot be modified except by written document signed by all of the parties. 19 . Each person executing this Agreement does hereby personally represent and warrant to the other signatories that he/she has the authority necessary to execute this Agreement and that no other consent or approvals of anyone are required or necessary for this Agreement to be so binding. 20. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 21. This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the parties. 22 . The Merles hereby represent and warrant that they are the current owners of the Property and that they have not entered into any contract or agreement by which any interest in the Property has been or will be transferred to any other person or entity. The Merles further agree that they will not transfer to any person or entity any interest in the Property prior to the date of the recordation of this Agreement and that they will provide actual notice of this Agreement to any transferee prior to any transfer. 23 . This Agreement may be executed, in counterparts by the parties hereto and shall become effective and binding upon the parties at such time as all the parties have signed a counterpart Of this Agreement. H8G20697 -10- I 24 . Should any party hereto reasonably retain counsel for the purpose of enforcing or preventing the breach of any pro- vision hereof, including but not limited to instituting or defending any action or proceeding to enforce any provision hereof, the prevailing party shall be entitled to be reimbursed by the loosing party for all costs and expenses incurred thereby, including but not limited to reasonable attorneys , fees. 25. The parties hereto agree to execute such other docu- ments and to take such other action as may be reasonably necessary to finalize and perform this Agreement. 26• All notices or demands required, permitted or convenient in connection with this Agreement shall be in writing, mailed by first-class mail, postage and fees prepaid, or hand delivered and addressed to the other parties and to their respective counsel as follows: HBG20697 "� 1- 4 If to the City and its Counsel: (a) City of Redlands c/o City Engineer P, 0. Box 3005 Redlands, California 92373 (b) Howard B. Golds Best, Best & Krieger P.O. Box 1028 400 Mission Square 3750 University Avenue Riverside, California 92502 If to the Merles and their Counsel: (a) John Merle 11434 Tortuga Street Cypress, CA. 90603 (b) Anton Merle, Jr. 11705 Pine Valley Place Northridge, CA. (c) Robert S. Coldren Hart, King & Coldren 200 East Sandpointe, Ste. 400 Santa Ana, California 92707 MOG20697 "12 y IN WITNESS WHEREOF the parties have set their hands as Of the date set forth Opposite their names. CITY OF REDLANDS Dated: B ~� Its. ----MAYOR y Dated: ANTON MERLE, SR. Dated: �_�Zj_ 4 / ,�-.--•�-- JOHN 'MERLE Dated: THERESA MERLE Dated: � -,'�} ,f`-�U� ANTON MERLE, JR. � Dated• ELIZABETH MERLE APPROVED AS TO FORM: BEST, BEST & KRIEGER By: Howard B. Golds Attorneys for Plaintiff City of Redlands HART, KING & COLDREN Gregory G -antham Attorneys for Defendants Anton Merle, et al. HBG20697 -13-