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HomeMy WebLinkAboutContracts & Agreements_49-2005_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is entered into by and between Michael Wynne and Amy Wynne ("Claimants") and the City of Redlands ("City") in connection with the settlement of that certain Claim for property damage filed by Claimants with the City on April 8, 2004 and a Small Claim suit captioned Michael Wynne v. City of Redlands Case No. SIZE 32588 which was filed with the Superior Court San Bernardino County on October 19, 2004, and to resolve and release City from future claims as they relate to water runoff from Crescent Avenue to Claimants' property located at 49 E. Crescent Avenue. City and Claimants are sometimes referred to herein as the "Parties." RECITALS A. It is alleged by Claimants that on or about April 1, 2004, a rainstorm occurred which resulted in water from Crescent Avenue flowing onto Claimants' property located at 49 E. Crescent Avenue, Redlands (the "Property"), causing property damage. As a result, Claimants filed a claim for damages to their property in a Small Claims suit in San Bernardino Superior Court Case Number SIZE 32588. It is contended that water damage will continue to occur if certain improvements are not made to the Property. B. It is the intention of the Parties to resolve and settle their dispute and to discharge all claims, demands, causes of action, obligations, damages and liabilities the Z_� Z__ zn Parties may have against the other, for now and in the future, that arise from, or are related to the incident which is the subject of the current claim and potential future claims related to water run-off from Crescent Avenue to the Property. C. This Agreement is a compromise of the Claim asserted by the Claimants and a release of City from future related claims, and shall not be treated as an admission of liability by any Party. AGREEMENT I The Parties agree that the Recitals are true and correct, and incorporate the Recitals into this Agreement. 2. City shall pay to Claimants the sum of Five Thousand dollars ($5,000.00) to settle all claims and Claimants hereby grant City a Deed of Easement to construct an adequate size storm water drain and pipe underground across Claimants' Property to drain water from Crescent Avenue across Claimants' Property. Such sum shall be due and payable within thirty (30) days of the recording of the Deed of Easement in favor of City and upon the filing of a Dismissal with Prejudice of Claimants' Small Claims Case Number SIZE 32588 which was filed against City. The Easement Deed is attached hereto to this Agreement as Exhibit "A." Claimants further agree that because City is paving for said storm drain improvements to Claimants" Property, Claimants hereby forever discharge, release and waive their rights to make a claim against City hereinafter for water damage for water runoff that may flow onto Claimants' Property from Crescent Avenue by City providing an adequate size drain. 3. City agrees that upon the placement of the drainage structure in the Easement granted by Claimants to City, City will return Claimants' Property to its pre- construction condition. 4. The Parties shall bear their own attorneys' fees and costs incurred in connection with the Claim. 5. Claimants, on behalf of themselves, their respective agents, attorneys, employees, representatives, assigns and successors-in-interest hereby release and forever discharge City and its elected officials, officers, employees, assigns and successors-in- interest from any and all claims, causes of action, damages, losses, liabilities of every kind and character, known or unknown, existing or contingent, latent or patent. regarding In any matter arising from or related to the incident which is the subject of this Claim and any future claims as specified in this Agreement. 6. Claimants represent and warrant that they have the legal authority to settle any and all causes of action and claims they may have against City with regard to any and all claims and/or causes of action which relate to this Claim. By executino, this Agreement, Claimants hereby release and waive all claims or causes of action which in any way relate to this Claim and this Agreement. To the extent any person or entity should file, subsequent to the execution of this Agreement, any claims and/or causes of action against City arising out of or which are related to the facts and issues released herein, Claimants shall indemnify, defend and hold City harmless from any and all damages, including any attorneys' fees and costs, that result therefrom. 7. Claimants expressly waive the rights afforded them 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. 8. Claimants represent and warrant that they received the advice of legal counsel with respect to the advisability of making the release provided for herein, and the meaning of California Civil Code section 1542. Claimants are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of Claimants to fully, finally, and forever settle and release all such matters, and all claims related to those matters which are the subject of this Agreement. 9. Claimants represent and warrant that they have not assigned or transferred or purported to assign or transfer, and shall not hereafter assign or transfer. any obligations, liabilities, demand, claims, costs. expenses, debts, controversies, damages, actions and causes of action released pursuant to this Agreement. Claimants shall indemnify, defend and hold City harmless against any obligation, liability, demand, claim, cost.. expense (including, but not limited to. attorneys' fees incurred), debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such transfer or assignment or purported transfer or assignment. 10. The Parties, acknowledge that they have read this Agreement; that they have had the Agreement explained to them by counsel of their choice; that they are aware of the content and legal effect of this Agreement; that they are acting on the advice of counsel of their choice, and that they are not relying on any representations made by any other party or any of the employees, agents, representatives, or attorneys of any other party, or any of them. 11. The Parties agree to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. I'). This Agreement constitutes the entire agreement between the Parties as to z:� the matters contained herein. No modification of this Agreement shall be valid unless made in writing and signed by the Parties. The Parties shall not be bound by any C� representation, warranty, promise, statement or information unless it is specifically set forth in this Agreement. 13. Failure of any Party to insist upon strict observance of, or compliance with all of the terms of this Agreement in one or more instances, shall not be deemed to be a waiver of a Party's right to insist upon such observance or compliance with the other terms of this Agreement. 14. This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 15, This Agreement has been Jointly negotiated and drafted. The language of Z:� this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. 16. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 17. Should an action be brought to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs incurred in prosecuting the action. Dated: 91 - CLAIMANTS r a 1gynne 6i-k" !Z_ Amy Wy e Dated: March 15, 2005 CITY OF REDLANDS Sus Peppler,"Mayor ATTEST: f L�.orfiel?oyzer, i Jerk Exhibit"A" Easement Deed RECORDING REQUESTED BY: PUBLIC WORKS DEPARTMENT CITY OF REDLANDS WHEN RECORDED, RETURN TO: CITY CLERK'S OFFICE CITY OF REDLANDS P.O. BOX 3005 REDLANDS CA 92373 (MIS SPACE FOR RECORDER'S USE ONLY) GRANT OF STORM DRAIN AND DRAINAGE EASEMENT This Grant of Storm Drain and Drainage Easement is entered into by and between Michael Allen Wynne and Amy Dawn ftnne Full Name of Grantor and the City of Redlands,a Municipal Corporation(herein"City")duly organized in accordance with the laws of the State of California. For valuable consideration, receipt of which is hereby acknowledged Michael Allen Wynne and Amy Dawn Wynne Full Name of Grantor hereby grants to City an irrevocable storm drain and drainage easement over that certain real property ("Easement Area"), described on Exhibit "A" and shown on Exhibit "B" attached hereto, for the following purposes: A. Right-of-way at any time, or from time to time, to construct, maintain, operate replace, and renew the storm drainage system described on Exhibit"A"and shown on Exhibit "B", and appurtenant structures in, upon and across said Easement Area or any part thereof; and B. Ingress and egress over the Easement Area for any storm water and drainage flows. Executed on 3 - 10 2005 is a len Wynne �Jww Amy Da4i4'Wynne NOTARY ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ss. COUNTY OF 50-n Bernar&(V) n ) On this I D'k day of M 0X'ch. , 2005, before me, the undersigned, a Notary Public in and for said State, personally appeared M i r-6 o`e 1 At :t r, U011vt ne '14- A M urn WV njte-> proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for Said State ► escxv Mwon r 149066p kn LQ- - - I - - - Im—m-s Z MVO mm.Dow A 6. EXHIBIT "A" DESCRIPTION OF PROPERTY Real property located in the City of Redlands, County of San Bernardino, State of California, described as follows: That portion of Lot 34, Block 1, Crescent Avenue Subdivision, in the City of Redlands, County of San Bernardino, State of California, as per map recorded in Book 5, Page 78 of Maps, in the office of the County Recorder of said County, more particularly described as follows: Beginning at the southwesterly corner of said Lot 34, said corner being on the northerly right- of-way line of Crescent Avenue, 70 feet wide; thence northerly along the westerly lot line of said Lot 34, 52 feet, more or less,to the existing Storm Water Ditch;thence easterly along the southerly line of said Storm Water Ditch to a line parallel to and 5.6 feet easterly of the westerly lot line of said Lot 34; thence southerly along the easterly lot line of said Lot 34 to said northerly right-of-way line of Crescent Avenue;thence westerly along said northerly right- of-way line 5.6 feet, to the Point of Beginning. ,OFESS/ � t C U flk— Ronald C. Mutter, P. E., RCE 28129 28129 Expires March 31, 2006 Exp. 3-31-06 Signed: January 25, 2005 ENO I OF C EXHIBIT B ALLEY I CRESCENT AVECUE SUBDE 10N I B. 5� PG. 7 32 36 1j 4 tN cJ.E7 QR IMAGE EA EMENT CRESCENT AVENUE SCALE; 1 " = 30' 01/07/05 TTF