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HomeMy WebLinkAboutContracts & Agreements_176-2011_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is made and entered into this 61' day of December,2011 ("Effective Date"), by and between the City of Redlands("City")and the Redlands Country Club("RCC"), City and RCC are sometimes individually referred to herein as a"Party"and,together, as the"Parties." RECITALS This Agreement is made with reference to the following facts: A. In 2004, City staff and City's Municipal Utilities and Public Works Commission (the"Commission")became aware that a then-pending implementation of a MCL for perchlorate could result in the possible loss of 8 and of the City's potable water supply. B. Also during 2004, in an effort to mitigate impacts to City's potable water supply, City staff and the Commission began exploring the possible refurbishment of the Redlands Heights Well to provide non-potable water to RCC. The costs to City for such refurbishment were approximately Six Hundred Thousand Dollars($600,000)for infrastructure improvements. C. The transition from a potable water system to a non-potable water system by RCC required RCC to expend approximately Four Hundred Sixty Thousand Dollars ($460,000) for infrastructure improvements. To encourage RCC to make the necessary improvements to convert its water system to receive non-potable water, City staff suggested to RCC that City could supply non-potable water to RCC at a cost that would be no more than fifty percent of the City's potable water rate. D. On December 7, 2004, RCC informed the City that RCC was diligently planning and designing the infrastructure and reservoir that would be necessary to store the non-potable water that was contemplated for delivery to RCC. RCC further informed City that it had filed an application for the necessary Conditional Use Permit for the reservoir and planned to be operational by June/July 2005. E. In January, 2005; the Redlands City Council approved an agreement with Boyle Engineering for the provision of design engineering services for improvements to the Redlands Heights Well to facilitate the delivery of non-potable water to RCC. F. In April, 2005, the Redlands City Council awarded a contract to E. J. Meyer Company for the construction of the Redlands Country Club Non-Potable Water System Project. G. In January, 2009, the Redlands City Council established a non-potable water rate of Ninety-Nine Cents ($0.99) per unit, applicable to all users of non-potable water from the City's water system. H. On July 29, 2009, City received a letter from RCC disputing the applicability of the Ninety-Nine Cents($0.99)non-potable water charge to RCC, and claiming that RCC should 1AcA\djmUgreeffwn&Jtcd1an&CxAmtry ClubSettlernent and Cieneral Release(Draft),829A I DOC 1 be charged only Fifty-Seven Cents ($0.57) per unit for non-potable -water (the "Water Rate Dispute"). City and RCC now desire to fully and finally settle and resolve any and all rights, claims, disputes and causes of action which currently exist, or may exist in the future, relating to the Water to Dispute. In consideration of the mutual promises contained herein, the City of Redlands and the Redlands County Club agree as follows: AGREEMENT I. Recitals. The above recitals are incorporated into and are a part of this Agreement. 2. Settlement. In consideration of this Agreement and the mutual promises set forth herein, City will provide non-potable water to RCC at a rate that is thirty Five Cents($0.35) per hundred cubic feet less than City's non-potable water rate, commencing on the Effective Date of this Agreement through the calendar year 2020. 3. Each Party to Bear Ow-n Costs and Fees. The Parties shall each bear their own , attorneys' fees and other costs if any, incurred in relation to the Dispute, and the negotiation and drafting of this Agreement. 4. Mutual Release. Each of the Parties to this Agreement, for itself, its successors- in-interest, assigns, and all others who may claim by or through them or who may take any interest in the matters herein released, fully and forever release, and discharge each other from any and all claims, demands, rights, causes of action, damages, losses, attorneys' fees and expenses, and costs of every kind and nature whatsoever, known or unknown,which either of the Parties to this Agreement may now have or may hereinafter have, which arise from and/or relate to the Dispute. 5. Waiver of Civil Code Section 1542. Except as specifically no in this Agreement, it is the intention of the Parties that the release entered into as part of this Agreement shall be effective as a bar to any and all past, present or future actions, causes of action, rights, obligations, costs, interest, expenses, attorney's fees, damages, losses, claims, liabilities, demands and compensation of any character, nature and kind, known or unknown, disclosed or undisclosed,whether or not anticipated, or in any way related to the Dispute, to be so barred; in furtherance of which intention the Parties expresslyw-aive any and all right and benefit conferred upon the Parties by the provisions of Section 1542 of the California Civil Code, which reads as follows- A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release,, which if known by him or her must have materially affected his or her settlement with the debtor. 1Aca1,djnf%AzCoun"y Club Settlement and General Release(Draft 8,29.11 DOC 2 The Parties hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code was bargained for separately. The Parties expressly agree that the release provisions herein contained shall be given full force and effect in accordance with each and all of their express terms and provisions, including but not limited to those terms and provisions relating to unknown or unsuspected claims, demands and causes of action hereinabove specified. The Parties specifically agree to assume the risk of the subsequent discovery or understanding of any matter, fact or law which if now known or understood would in any respect have affected this Agreement. 6. Denial of Liability. The Parties agree and mutually acknowledge that this Agreement is for settlement purposes only. The Parties have denied, and continue to deny, any liability in connection with the Dispute. Neither this Agreement nor any action taken pursuant to this Agreement shall constitute any admission of any wrongdoing, fault, violation of law, or liability of any kind on the part of the Parties. 7. Integrated Agreement. This Agreement is the final and entire agreement between the Parties concerning the subject matter of this Agreement. All agreements of the Parties with respect to the subject matter hereof are in writing and supersede all prior written and oral agreements and understandings of the Parties. This Agreement cannot be modified except by a written document signed by the Parties. 8. Inde and declare that in independent Representation by Counsel. The Parties represent executing this Agreement they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently-selected counsel, concerning the nature,extent and duration of their rights and claims hereunder. 9. Governing Law. This Agreement shall in all respects be interpreted,enforced and governed by and under the laws of the State of California. 10. Construction. This Agreement shall be deemed to have 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. 11. Atte rnex' Fees. Should any Party hereto retain counsel for the purpose of A enforcing or preventing the breach of any provision of this Agreement including, but not limited to, instituting or defending any action or proceeding to enforce any provision of this Agreement, including for damages by reason of any alleged breach or for a declaration of such Party's rights or obligations hereunder or for any other judicial remedy, then the prevailing Party shall be entitled to be reimbursed by the losing Party for all costs and expenses incurred thereby, including,but not limited to,actual attorneys%paralegals',experts' and accountants' fees. 12. Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, unconstitutional or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full force and effect as if no invalid or unenforceable provisions had been part of this Agreement. Fxza`AjuPAg=n=ts1Raands Country Club.Settlement and Genetal Release(Draft}.9.2.1 l DOC 3 13_ Covenant to Take, Further Actions Necessary. The Parties hereby agree to execute such other documents and to take such other actions as may be reasonably necessary to further the purposes of this Agreement. 14. No Third - Pgjy Beneficiaries. There are no third-party beneficiaries to this Agreement and nothing herein shall confer any enforceable rights on non-signatory persons or entities. 15. Successors and Assigns. Each of the terms of this Agreement is binding upon each of the Parties and their respective assigns and successors-in-interest. REDLANDS COUNTRY CLUB THE CITY OF REDLANDS By: By. c0 ding R dPete Aguilar, Mayor ng Pre ident,RCC and of Directors Attest: Sam Irwin,Citytled lAa,4:jrWAgrmnvn&aed1ands Country Club.Sentment and General Release{Draft),8_29.1 IDOC 4