HomeMy WebLinkAboutContracts & Agreements_165-2012_CCv0001.pdf SETTLEM ,NTA REEMEN
This Settlement Agreement and Release ("Agreement") is made and entered into this
16"' day of October, 2012, by and between the City of Redlands ("City"), and the Redlands
Seventh-Day Adventist Church and Southeastern California Conference of Seventh-day
Adventists(together"Church"). The City and the Church are sometimes individually referred
to herein as a"Party" and, together, as the "Parties."
RECITALS
This Agreement is made and entered into by the Parties with reference to the following facts:
A. The Redlands Seventh-Day Adventist Church is located at 520 Brookside
Avenue, Redlands, California(the "Facility").
B. On June 23, 2009, the Church received approval of a Conditional Use
Permit No. 946 ("CUP") to expand the Church's Facility.
C. On August 31, 2012, during construction of the Facility pursuant to the CUP,
the Church caused two City—owned coast redwood trees (the "Cut Trees")to be cut and
removed from City right-of-way.
D. On September 18, 2012, the City and the Church began negotiations to
resolve the dispute caused by the Church's removal of the Cut Trees.
E. By this Agreement, the City and the Church desire to settle their dispute with
respect to the Church's removal of the Cut Trees, and intend to reach a full and complete
settlement of the dispute on the terms and conditions set forth below.
AGREEMENT
In consideration of the mutual promises contained herein, and for such other good
and valuable consideration, the receipt and sufficiericy of which is hereby acknowledged,
the Parties agree as follows:
1. The Church agrees to pay for the items set forth on Exhibit"A."which is
attached hereto and made a part hereof. If any of the items set forth on Exhibit"A"are
unavailable, or because infeasible for the Parties to carry out. the Parties will negotiate in good
faith to achieve a result close to the goal set forth in Exhibit"A." The Church acknowledges
and agrees that the costs attributable to the items listed in Exhibit"A" are estimates only, and
do not represent the actual costs that the City may incur in connection with the purchasing,
transporting,planting and maintenance of the Replacement Trees. The Church agrees to pay
the City's actual costs for each of the items listed in Exhibit "A"within ten(10)calendar days
of the City's presentation to the Church of a written invoice evidencing the City's actual costs
for such items.
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2. The Church agrees to be solely responsible for the City's costs of purchasing,
transporting and planting two mature coast redwoods in City right-of-way adjacent to the
Facility (the "'Replacement Trees"). The vendor, transporter and planter of the Replacement
Trees shall be selected by the City and under the City's control. The Church agrees to be solely
responsible for the costs of an eighteen(18) month warranty for the Replacement Trees and the
corresponding maintenance plan from the vendor. The selection and planting of the
Replacement Trees shall be under the supervision of an arborist selected by the City,which
expense shall also be home by the Church.
3. Upon satisfaction of all of the Church's obligations created by or arising out of
this Agreement, the City agrees that (i) it will seek no compensation from the Church other than
what is contemplated by the Agreement in connection with the Church's removal of the Cut
Trees; (ii)that the Church shall have no liability if the Replacement Trees fail to thrive; and(iii)
that the City will not initiate an action to revoke the CUP based on the Church's removal of the
Cut Trees.
4. Within five (5) calendar days of the Effective Date of this Agreement,the City
agrees to dismiss the Non-Traffic Citation No.-AG-4097S-M the interest of justice.
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RELEASES
5. Upon satisfaction of all of the Church's obligations created by or arising out of
this Agreement,the City, on behalf of itself and each of its past, present and future agents,
representatives, successors and assigns, assignees, and/or each person or entity acting or
purporting to act for them, or on their behalf(collectively, the "Releasors") unconditionally and
irrevocably remise,release, and forever discharge the Church and each of its respective past,
present and future divisions, subdivisions, companies, subsidiaries, affiliates, departments,
managers, licensees, sub licensees, trustees, creditors, partners,joint venturers,principals,
officers,members, directors, employees, agents (except for Roseberry Tree Service),
representatives, attorneys,predecessors, successors, assigns, assignees, administrators and each
person or entity acting or purporting to act for the Church (collectively, the"Releasees") of and
from any and all claims, demands, damages, debts, liabilities, accounts, obligations,costs,
expenses, liens, actions and causes of action of every kind and nature whatever, -whether now
known or unknown, suspected or unsuspected. 'which the City now has, owns or holds, or at any
time previously,had owned or held, against any of the Releasees, based upon or related to the
Church's removal of the Cut Trees or the CUP which could have been raised concerning
revocation of the CUP (which are collectively referred to as the "Released Matters").
6. The City acknowledges that it is familiar with California Civil Code section 1542
which provides 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."
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The City waives and relinquishes any rights or benefits which it has or may have under
California Civil Code section 1542.
7. This Agreement is entered into by the Parties freely and voluntarily, and with and
upon the advice of counsel. The City warrants that it has been fully advised by its attorney
regarding the advisability of executing this Agreement and with respect to the meaning of
California Civil Code section 1542.
GENERAL PROVISIONS
8. The City understands that the Church's reasonable efforts will be applied to the
obligations created by this Agreement but that some temporary, inadvertent errors may occur. In
the event of any such errors,the City agrees to provide prompt written notice to the Church and
to allow the Church a reasonable opportunity to cure the error. In no event shall such errors
constitute a material breach under this Agreement.
9. It is the understanding of the Parties that the releases this Agreement contains
shall apply and extend to only the Parties and individuals and entities designated in this
Agreement. This Agreement is between the Church and the City only, and is not intended to be,
nor shall it be construed as being, for the benefit of any third party or parties, except as expressly
stated herein.
10. The failure of the City to demand from the Church performance of any act under
this Agreement shall not be construed as a waiver of the City's right to demand, at any
subsequent time,such performance.
II. The provisions of this Agreement are severable, such that if any provision of this
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such a
determination shall not invalidate or render unenforceable any other provision of this Agreement.
12. This Agreement may be executed in counterparts and by facsimile or PDF
signature, each of which shall be deemed an original and all such counterparts shall together
constitute one and the same instrument.
13. Each Party agrees to execute any documents and to cooperate in any reasonable
manner to effectuate the terms of this Agreement.
14. The Parties have participated in drafting this Agreement, and accordingly, any
ambiguity herein shall not be construed for or against any Party.
15. This Agreement may not be altered, amended, modified or otherwise changed in
any respect or particular except in writing duly executed by the Parties.
16. This Agreement shall be construed, enforced and administered in accordance with
the laws of the State of California, without giving effect to the conflicts of laws principles
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thereof.
17. By entering into this Agreement, no Party is admitting any liability, and this
Agreement should not be construed as an admission of liability by any Party. The Parties
understand, acknowledge and agree that the settlement reached, the making of this Agreement,
and anything contained in this Agreement, constitutes a compromise of disputed claims
involving legal and factual questions and issues and is not to be construed as an admission by
any Party of liability under or noncompliance with any federal, state, or local law or regulation.
This Agreement,and the settlement provided for herein, shall not be admissible in any lawsuit,
administrative action, or any judicial or administrative proceeding if offered to show,
demonstrate, evidence or support a contention of the City that the Church acted illegally,
improperly, or in breach of law, contract or proper conduct.
18. No Party has made any statement or representation to the other Party regarding
any fact relied upon by the other Party in entering into this Agreement, and each Party
specifically does not rely upon any statement, representation or promise of any other Party in
executing this Agreement, except as expressly stated in this Agreement.
19. This Agreement memorializes and constitutes the entire agreement and
understanding between the Parties with respect to the subject matter hereof, and supersedes and
replaces all prior negotiations, proposed agreements and agreements between Parties,whether
written or unwritten. The Parties acknowledge that no person or entity, nor any agent or attorney
of any person or entity, has made any promises,representations, or warranties whatsoever,
express or implied,which are not expressly contained in this Agreement, and the Parties further
acknowledge that they have not executed this Agreement in reliance upon any collateral promise.,
representation,warranty, or in reliance upon any belief as to any fact or matter not expressly
recited in this Agreement.
20. This Agreement is binding upon and shall inure to the benefit of the Parties, and
their respective agents, employees, shareholders, affiliates, parents, subsidiaries, directors,
officers, heirs, insurers, assigns, and successors-in-interest.
21. The Parties agree to bear their own costs and attorneys' fees incurred in the
investigation and preparation of this Agreement.
22. In the event any action is commenced to enforce or interpret any provision of this
Agreement the prevailing Party in such action, in addition to costs and any other relief, shall be
entitled to recover its reasonable attorneys' fees, including fees for use of in-house counsel by a
Party.
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CITY OF REDL-ANDS REDLANDS SEVENTH-DAY ADVENTIST
CHURCH
r
By: ? By:
Pete Aguilar, Mayor -'
SOUTHEASTERN CALIFORNIA
CONFERENCE OF SEVENTH-DAY
ADVENTISTS
By:
AT FEST:
Sam Irwin; y Jerk
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CITY OF REDLANDS REDLANDS SEVENTH-DAY ADVENTIST
CHURCH
By: By:
Pete Aguilar, Mayor
SOUTHEASTERN CALIFORNIA
CONFERENCE OF SEVENTH-DAY
ADVENTISTS
By:
ATTEST:
Sam Irwin, City Clerk
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EXHIBIT 44A"
Scope of Work:
o 2 Replacement Trees 40-45 x 20-21 $22,000 ea($44,000+tax $3,850)
o Planting $6,000 ea($12,000)
(this cost assumes a very easy installation where crane and equipment can get right next
to the plant site, and no wires,pipes, etc. in the way)
o Transportation— I tree per truck r $71.0 ea($1,440)
o Demolition of Infrastructure (see below)
- Curb
- Sidewalk
- Street Lighting
- Electrical
o Replace all infrastructure per City standards (demolition of infrastructure included in the
following prices):
Mobilization $1,200
Sidewalk $720
Curb and gutter $600
Asphalt repair $576 for 4x24 of street replacement
o Removal and Disposal of old tree balls (this is included in the replanting of the new trees)
o Contractor License (no charge)
o Insurance (included in price)
o City business license ($102)
o Street tree permits ($25)
o Prevailing Wage (should be included in labor cost)
o Arborist-evaluation of trees and oversee the planting ($1,690) and($1,155)
o Eighteen Month Warranty ($650 per month x 18 months total
$11,700)
TOTAL $79,058
(ALL PRICES ARE ESTIMATES ONLY AND DO NOT REFLECT THE CHURCH'S
PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.THE CHURCH'S
PAYMENT OBLIGATIONS ARE FOR THE ACTUAL COST INCURRED BY THE
CITY FOR THE ITEMS LISTED IN THIS EXHIBIT AS SET FORTH IN SECTION I
OF THIS AGREEMENT)
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