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HomeMy WebLinkAboutContracts & Agreements_17-92_CCv0001.pdf 611.0/92 DAN, BEST, BEST & KRIEGER CAN YOU PLEASE SUPPLY ME WITH A COPY A POF THE AGREEMENT THAT IS TO BE FILED ARTNERSi-IIP IPIGI UDING PROFESSIONAL CORPORATIONS LAWYERS WITH THIS MAP. THANKS, BEA ARTHUR L.LITTLEWORTH' DOUGLAS S.PHILLIPS' MATT H.MORRIS ELAINE E.HILL 444 MISSION SQUARE GLEN E.STEPHENS' ANTONIA GRAPHOS JEFFREY V.DUNN KEVIN K.RANDOLPH 3754 UNIVERSITY AVENUE WILLIAM R.D.WOLFE' GREGORY K.WILKINSON STEVEN C,D.BAUN JAMES 8,GILPIN POST OFFICE BOX 1428 BARTON C.GAUT' WYNNE S.FURTH BRANT H.DVEIRIN MARSHALL S.RUDOLPH PAUL T,SELZER' DAVID L.BARON ERIC L.GARNER KIM A.BYRENS RIVERSIDE,CALIFORNIA 92542 DALLAS HOLMES' EUGENE TANAKA DENNIS M.COTA CYNTHIA M.GERMANO TELEPHONE(714)6$6-1454 CHRISTOPHER L,CARPENTER' BASIL T.CHAPMAN JULIE HAYWARD BIGGS MARY E,GILSYRAP RICHARD T.ANDERSON' TIMOTHY M.CONNOR RACHELLE J.NICOLLE NGUYEN D.PHAN TELECOPIERS JOHN D.WAHLIN' VICTOR L.WOLF ROBERT W,HARGREAVES DANIEL C.PARKER,JR. (714}686-30836$2-4612 MICHAEL D.HARRIS' DANIEL E.OLIVIER JANICE L.WEIS GINEVRA C.MARUM W.CURT EALY' DANIEL J.McHUGH CHRISTIAN E.HEARN PAUL G,GIBSON THOMAS S.SLOVAK' HOWARD B.GOLDS SHARYL WALKER CHARLES E.KOLLER JOHN E.BROWN' STEPHEN P.DEITSCH PATRICK W.PEARCE GLENN P.SABINE OF COUNSEL MICHAEL T.RIDDELL* MARC E.EMPEY KIRK W.SMITH CHRISTINE L.RICHARDSON JAMES B.CORISON MEREDITH A,JURY' JOHN R.ROTTSCHAEFER JASON D.DABAREINER JOANE GARCIA-COLSON MICHAEL GRANT' MARTIN A.MUELLER KYLE A.SNOW PHILIP J.KOEHLER RICHARD A.OSHI NS' FRANCIS J.BAUM' J.MICHAEL SUMMEROUR MARK A,EASTER DIANE C.WIESE RONALD T.VERA ANNE T,THOMAS' VICTORIA N.KING DIANE L.FINLEY STEVEN S.KAUFHOLD -ADWFTED IN NEW YORK,NEVADA, O.MARTIN NETH ERY' JEFFERY J.CRANDALL MICHELLE OUELLETTE REBECCA MARES GURNEY wrAstiINOTON,D.C.COURT OF C-- GEORGE M.REYES SCOTT C.SMITH PETER M.BARMACK ALLISON C.HARGRAVE WILLIAM W.FLOYD,JR, JACK B.CLARKS,JR. DAVID P.PHIPPEN,SR. DOROTHY L ANDERSON MICHAEL A.CRISTE' JEANNETTE A.PETERSON KENNETH R.WEISS G.HENRY WELLES GREGORY L.HARDKE BRIAN M.LEWIS J.CRAIG JOHNSON DANIEL L.PEARSON OFFICES IN KENDALL H.M..VEY BRADLEY E.NEUFELD SUSAN C.NAUSS PALM SPRINGS{619}325-7264 CLARK H,ALSOP' KANDY LEE ALLEN CHRISTOPHER DODSON RAYMOND BEST(1868-1957) DAVID J,ERWIN* ELISE K-TRAYNUM MARK R.HOWE JAMES EL KRIEGER(1913-1975) RANCHO MIRAGE(619)565-2611 MICHAEL J.ANDELSON' WILLIAM D.DAHLING,JR, BERNIE L.WILLIAMSON EUGENE BEST(1893-1981) ONTARIO(714)989-8584 'A PROFESSIONAL CORPORATION May 22 , 1992 p�Y t5� James D. Wheaton ( . 11,14G� City Manager City of Redlands 30 Cajon Street— Redlands, California 92373 Re: City of Redlands adv. Western Heights Water Company Dear Jim: Back on April 7, 1992 , Dan McHugh sent you the original signed settlement agreement executed by the Western Heights Water Company, Mr. Danielson and the City. A map incorporated into the agreement which depicts the Western Heights service was not furnished in final form along with the agreement. We finally received the map a few days ago and it is now enclosed for your records. For your information, we are informed that Mr. Danielson has now paid his $10, 000 to Western Heights and has also assigned over the required stock. Therefore, this matter should be dismissed shortly. Very truly yours, Howard B. Golds of BEST, BEST & KRIEGER HBG/tag Enclosure DJM112476 SETTLEMENT OF WESTERN HEIGHTS WATER COMPANY V. CITY OF REDLANDS ("CITY") , SAN BERNARDINO SUPERIOR COURT CASE NO. 260976 (THE "ACTION") AND MUTUAL GENERAL RELEASE OF RELATED CLAIMS ("THIS AGREEMENT") . This Agreement is made among the parties this _2nd day f April ___._1992. RECITALS A. Disputes and a lawsuit have arisen between Company, City, and Walter G. Danielson Trust, owner of Tract 12382 ( "Owner" ) , with respect to which entity should serve water to Tracts 12777, 12382 and certain other areas within Company' s service area. Among other things, Company alleges City has encroached onto Tracts 12777 and 12382 which are included in Company's service area, and that, under the theory of inverse condemnation, Company is entitled to compensation from City for Company's resulting damages and losses, including attorneys fees. City has agreed to provide domestic water service to Tracts 12777 and 12382 and City denies that it is precluded from providing such water service and further denies that Company is entitled to any recovery against City with respect to the alleged encroachments within Tracts 12777 and 12382 Of Company' s service area. Owner denies that it is obligated, in any way, to obtain water service from Company. B. The parties hereto, through their respective counsel, and in order to avoid further litigation have negotiated a settlement of disputed claims, as follows: -1- AGREEMENT 1. For and in consideration of the Commitments made and the consideration given, as set forth herein, the parties hereto do hereby completely release and forever discharge each other and each other' s officers, agents, attorneys, employees, successors, and assigns from all claims, rights, demands, actions, obligations, liabilities, and causes of action of any and every kind, nature and character whatsoever, known or unknown, whether based on a tort including but not limited to negligent or intentional tort, contract (implied, oral or written) or any other theory of recovery, including, but not limited to inverse condemnation, and whether for compensatory, special or exemplary damages, which they may have, or either of them now has, have ever had, or may in the future have, arising from, or in any way connected with Tracts 12777 and 12382. This release is limited to the claims arising out of, or. rej1Aajtjing_ to Cit ' s Present or - anti cipat94--Al leged encroachment into Tracts 1,2777 and 12382. 2. City shall not serve water to any area within Company' s service area (as delineated in Exhibit "A" attached hereto) where Company is presently providing water service. 3. City intends and has agreed to and shall provide domestic water and sewer services to Tracts 12777 and 12382. Company agrees that City may provide domestic water and sewer services to Tracts 12777 and 12382, the same as if said Tracts were not within Company's service area. 4. Except as to Tracts 12777, 12382 or as otherwise noted hereinbelow, City agrees not to interfere, in any way, with -2- water service by Company in its said service area, whether or not Company is presently serving water in all of the areas within Company's service area. S. City also shall not serve water to any area within Company's service area where Company is not presently providing water service, unless a Court of competent jurisdiction first adjudges that the area to be served by the City is not within Company's service area, or the Company voluntarily modifies the boundaries of its service area. 6. City shall not condition any project approval upon the owner/developer or anyone else challenging Company's rights to serve water to the project and City shall not state to anyone, in substance, that such person should challenge the validity or enforceability of any of the Company' s annexation agreements and/or Company's service area. Further, Company reserves its right to bring an action for inducing breach of contract should the factual requisites for such cause of action occur. 7. Within ten ( 10) days of the execution of this Agreement, Owner will pay to Company the sum of Ten Thousand Dollars ($10,000-00 ) and Owner will also deliver/transfer to the Company forty-seven ( 47 ) of Owner' s seventy-seven (77) shares of Company' s stock. 8. Should City provide sewer service in an area where Company provides water service, Company, at the request of City, will bill the users within such service area both for water and sewer service ( "water/sewer service" ) , and, in the event any user fails to pay the water/sewer service bill, Company will, upon -3- City' s specific demand therefor and/or the Company's rules, discontinue water service to such user until such time as the user' s water/sewer service account is paid in full and brought current. 9. In return therefor, City agrees to reimburse Company, in full, for all costs reasonably incurred by Company in billing for sewer service. 10. In the event any user referred to in paragraph 8 above should initiate litigation against the Company or any of its officers, agents, attorneys, employees, successors and assigns as a result of the discontinuance of water service, for nonpayment of sewer service or for any other reason relating to sewer service, City shall retain counsel and defend such litigation on behalf of Company, and City agrees to indemnify Company fully for all costs and expenses incurred in such litigation, as follows: a. City agrees to indemnify Company from any and all liability, losses, or damages Company may suffer as a result of actions, claims, demands, costs, or judgments against Company arising out of the discontinuance of water service for nonpayment of sewer service obligations, as aforesaid. The -indemnity herein provided will extend through the period wherein the City and Company implement and perform the provisions described in paragraph 8 above. b. Should it become necessary for purposes of resisting, adjusting, or compromising any claims or demands arising out of the subject matter with respect to which indemnification is provided by this Agreement, or for purposes of enforcing this -4- indemnity Agreement, for Company to incur any expenses of any kind, or become obligated to pay any attorneys ' fees or court costs, City agrees to reimburse Company for such expenses, attorneys' fees or costs within a reasonable time, in no event to exceed 30 days after receiving written notice from Company of the incurring of such expenses, attorneys ' fees, and/or costs. C. Should Company be required to enforce this indemnity Agreement against City through litigation, City shall pay Company interest at an annual rate of twelve percent ( 12%) , compounded quarterly, on all expenses or costs reasonably incurred by Company and of any sums Company may pay as a result of claims, demands, costs, or judgments with respect to the subject matter of this indemnity Agreement, from the date such sums are actually paid by Company. 11. With respect to Tracts 12777 and 12382, City, Company, and Owner, and each of them, hereby waive any claim or action, of any and every kind, nature, or character whatsoever, known or unknown, which they may now have, have ever had, or may in the future have, with respect to any matter pertaining to, or arising from the parties conduct and agreements with respect to Tracts 12777 and 12382. In addition, each party hereto hereby waives any and all rights or benefits which it may have under the terms of Section 1542 of the California Civil Code which provides as follows: 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 -5- him must have materially affected his settlement with the debtor. 12. The parties agree that each party shall be responsible for the payment of its own court costs, including attorneys , fees, and all other expenses in connection with the matters referred to in this Agreement. 13. It is understood and agreed that this is a full and final release covering all unknown and unanticipated injuries, debts, claims, or damages to City, Company or Owner which may have arisen or may arise, in connection with Tracts 12777 or 12382, as well as those injuries, debts, claims, or damages now known or disclosed which may have arisen, or may arise, from anything arising out of their respective dealings with respect to Tracts 12777 and 12382. 14. All of the parties represent that they have read this Agreement, and that they are, and each of them is, fully aware of its contents and of its legal effect. 15. It is understood and agreed that this is a compromise settlement of disputed claims, or potential disputed claims, and that the furnishing of the consideration for this Agreement shall not be deemed or construed as an admission of liability or responsibility at any time for any purpose. It is further agreed and understood that this Agreement is being entered into solely for the Purpose of avoiding further expense and inconvenience from defending against any and all claims, rights, -demands, actions, obligations, liabilities, and causes of action referred to hereinabove. The liability for any and all claims -6- referred to herein is expressly denied. 16. This Agreement incorporates the entire understanding among the parties, and recites the sole consideration for the promises exchanged herein. In reaching this agreement, no party has relied upon any representation or promise except those expressly set forth herein. 17. Each party hereto has participated in the drafting of this Agreement, and accordingly, none of its provisions are to be interpreted against any party hereto. 18. Company shall cause to be recorded in the Official Records of San Bernardino County a copy of this Agreement and all exhibits thereto, for the purpose of placing future purchasers of property within Company's service area on notice of the agreements made, and the rights created herein, so far as they relate to property subsequently acquired in Company' s service area. 19. In the event any party signing this Agreement or any amendment or addendum to this Agreement, or any successor of such party, fails to perform, or breaches any provision or provisions thereof, any signing party injured thereby may bring an appropriate action or proceeding, and the prevailing party or parties shall be entitled to recover from the non-prevailing party or parties their -7- full costs of suit, including attorney' s fees. CITY.-OF-:5;REDLANDS M— 17 �,_By:-'CharleD,-,'� �--' 3.rjyn Mayor, Cif Redlands WESTERN/,HEIGHTS � WATER COMPANY &.04 l)-Fi�� -1 Dr. Robert J," /ZAApia, President Colv WALTER G. DANIELSON TRUST By: Walter G. Danielson �J, By: Beyl M. Danielson Owner of Tract 12382 APPROVED AS TO FORM AND RECOMMENDED FOR SIGNING BEST, BEST & KRIEGER Howard Golds, Esq. Attorneys for Defendant, TY OF REDLANDS BR NIC AL R L RS Y Donald R. A a z, Esq. Attorneys for Plaintiff WESTERN HEIGHTS WATER MPANY RUTAN U KEJO Phil Kuhn i Eq-* .Attorney tor WALTER G. DANIELSON TRUST STATE OF CALIFORNIA cc ss. COUNTY OF / Q S L4 ��'� On this -7 day of `J in the year 19 before me, the undersigned, a Notary Public in and for said State, personally appeared fay ms i. T�2 G- - �Y�K�Y'��, �T✓ t!4 N� personally known to me [07 '4=L (or proved to me on the basis of satisfactory evidence) to be the person.Swhose names LOS ANGELES 0-10 W Comm.Exp.May 13.194d subscribed to the within instrument,and acknowledged to me that i.he executed it. WITNESS my hand and official seal. Notary Public in and for said State. ACKNOWLEDGMENT—Generai—WoI=M Form 233CA—Rev.5-82 ( 71982 WOLCOTTS INC (orae class E-2) r SETTLEMENT OF WESTERN HEIGHTS WATER COMPANY V. CITY OF REDLANDS, SAN BERNARDINO SUPPERIOR COURT CASE NO. 260976 AND MUTUAL GENERAL RELEASE OF RELATED CLAIMS CITY OF REDLANDS By: Charles/ D x--D-�r ,-- ayor City of ked ands, Ca L. ornia fjr STATE OF CALIFORNIA } } SS COUNTY OF SAN BERNARDINO } On this lath day of August in the year X992 , before me, the undersigned Notary Public, personally appeared Charles G. DeMirjyn, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Mayor of the City of Redlands and acknowledged to me that the City of Redlands executed the within instument. seal. IN WITNESS WHEREOF, I have hereunto set my hand and official fl RIE�S Nataryublic i d for said PO EAL ` NoWy� +rhe County nd Stat ' p My commission expires 6/3/93 -9- q City Cl k 15 \jV BEST, BEST & KRIEGER V00 co A PARTNER91410 INCLUCNNG PFIEFrSS4o­L CoRpopATKW$ LAWYERS C " ARTHUR L,UrTLEWORTH- DOUGLAS S.PHILLIPS' MATT H.MORRIS KEVIN K.RANDOLPH 400 MISSION SQUARE GLEN E.STEPHENS- ANTONIA GRAPHOS JEFFREY V.OUNN JAMES B.GILPIN WILLIAM R,D*WOLFE' GREGORY K.WILKINSON STEVEN C.O.BAUN 3750 UNIVERSITY AVENUE BARTON G.GAUT'. MARSHALL S.RUDOLPH WYNNE S.FURTH BRANT H.DVEIRW KIM A.BYRENS POST OFFICE BOX 1028 PAUL T.SELZER' DAVID L.BARON ERIC L.GARNER CYNTHIA M,GERMANO RIVERSIOE,CALIFORNIA 92502 DALLAS HOLMES' EUGENE TANAKA DENNIS M.COTA MARY E.GILSTRAP CHRISTOPHER L.CARPENTER' BASIL T-CHAPMAN JULIE HAYWARD BIGGS TELEPHONE(714)686-1450 RICHARD T.ANDERSON' NGUYEN O.PHAN JOHN J. DANIEL O.WAHLIN- VICTOR L.WOLF ROBERT W.HARGREAVES GINEVRA C.MARUM TELECOPIERS MICHAEL D.HARRIS' DANIEL E.OLIVIER JANICE L. WEIS CHARLES E.KOLLER (714)686-3083 - 682-4612 W. CURT EALY* DANIEL J.McHUGH CHRISTIANR E.HERRN GLENN P.SABINE THOMAS S.SLOVAK' HOWARD S.GOLDS SHARYL WALKER CHRISTINE L.RICHARDSON JOHN E.BROWN' STEPHEN P.DEITSCH PATRICK W.PEARCE JOANE GARCIA-COLSON MICHAEL T.RIDDELL' MARC E.EMPEY KIRK W.SMITH PHILIP COUNSEL MEREDITH A.JURY' PHILIP J�KOEHLER JOHN R�ROTTSCHAEFER JASON D.DA8AREINER DIANE C.WIESE JAMES B.CORISON MICHAEL GRANT- MARTIN A.MUELLER KYLE A.SNOW STEVEN S.KAUFHOLD RICHARD A,OSHINS* FRANCIS J. BAUM- J.MICHAEL SUMMEROUR MARK A,EASTER REBECCA MARES OURNEY ANNE T.THOMAS' VICTORIA N. KING DIANE L.FINLEY ALLISON C.HARGRAVE RONALD T.VERA G MARTIN NETHERY' JEFFERY J.CRANDALL MICHELLE OUELLETTE DOROTHY L ANDERSON -ADM—ED I NEW 1%)RK,NEVADA, GEORGE M. REYES SCOTT C.SMITH PETER M.BARMACK G.HENRY WELLES COURT OF c— WILLIAM w,FLOYD.JR. JACK B.CLARKE,JR. DAVID P.PHIPPEN.SR. DANIEL L.PEARSON MICHAEL A.CRISTE- JEANNETTE A.PETERSON KENNETH R.WEISS JAMES R.HARPER GREGORY L.HAROKE BRIAN M.LEWIS J.CRAIG JOHNSON DINA HARRIS KENDALL H.M*CVEY BRADLEY E.NEUFELD SUSAN C.NAUSS OFFICES IN CLARK H.ALSOP- KANDY LEE ALLEN CHRISTOPHER DODSON RAYMOND BEST(1868-1957) PALM SPRINGS(619)325-7264 DAVID J.ERwIN. ELISE K.TRAYNUM BERNIE L.WILLIAMSON JAMES H.KRIEGER(1913-1975) RANCHO MIRAGE(619)568-2611 MICHAEL J.ANDELSON* WILLIAM O.DARLING,JR. ELAINE E.HILL EUGENE BEST(1893-1981) ONTARIO(714)989-8584 A PROFESSIONAL C0RP0AATK)t4 August 21, 1992 Leland P. McElhaney, Esq. Brunick, Alvarez & Battersby 1839 Commercenter West P. O. Box 6425 San Bernardino, CA 92412 Re: Western Heiahts Water Company v. City of Redlands San Bernardino Superior Court Case No. 260976 Dear Lee: In accordance with your request, we have obtained the Mayor of Redlands ' signature on the enclosed agreement and have had it notarized by the City Clerk. The trustees of the Walter G. Danielson Trust have also signed off on the agreement and their signatures have likewise been notarized. Our understanding 4s �. .. L4-1,a�- . 4- you are now going to record the agreement in the County Recorder's Office. Would you please send a copy of the first page of the agreement to us once it has been recorded? Thanks for your help. Very truly yours, Daniel J. McHugh of Best, Best & Krieger City Attorneys for the DJM/des City of Redlands Encl. DJM127039