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HomeMy WebLinkAboutContracts & Agreements_126-2002SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ("Agreement") is executed and entered into on August 6,., , 2002 between REDLANDBRS FOR INFORMED DEVELOPMENT ("RID"), CITY OF REDLANDS (the "City") and CITY COUNCIL OF THE CITY OF REDLANDS (the "City Council"), and PETER A. MIKO ("Miko"), with reference to the following facts and circumstances. Recitals A. The Chiesman Irrevocable Family Trust (the "Trust"), for which Miko serves as a trustee, is the owner of a certain 28.72 acre parcel of real property situated in the R-A (Residential Estate) District and the A-1 (Agricultural) District located west of Terracina Boulevard and Smiley Heights Drive and northeast of San Timoteo Canyon Road in the City of Redlands (the "Subj ect Property"). B. Miko, on behalf of the Trust, made application to the City and, on July 17, 2001 the City Council approved, Tentative Tract No. 16042, Conditional Use Permit No. 714, and Variance No. 612 and an associated Mitigated Negative Declaration for seven (7) single family residential lots, three (3) lettered lots, and a remainder parcel on the Subject Property (collectively, the "Project Approvals"). C. RID is an unincorporated associated composed of persons -- including but not limited to William E Cunningham, Lester Mohr, and Walter Johnson -- residing and/or owning real property in the vicinity of the Subject Property and concerned with the Project Approvals. D. On August 17, 2001, RID, as Petitioner/Plaintiff, filed a Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief in the San Bernardino County Superior Court, bearing Case No. SCVSS 080668 (the "Action"), naming the City and the City 130/021319-0001 251121.08 PM02 Council as Respondents/Defendants, and naming Miko as Real Party in Interest. in the Action was Peter A. Miko ("Miko"). The Action petitions the court for the issuance for a writ of mandate and for declaratory and injunctive relief challenging the Project Approvals. E. The City, the City Council and Miko filed answers denying the material allegations and asserting several affirmative defenses. F. The parties now consider it in their best interest to resolve and settle the Action on the terns and conditions set forth herein in order to avoid the cost, inconvenience, uncertainty, and distraction of burdensome and protracted litigation. Agreement Now, therefore, in consideration of the promises, tennis, conditions, promises, covenants, and agreements contained herein, it is agreed by and between the parties as follows: 1. The foregoing recitals are incorporated herein and made a part of this Agreement by this reference. 2. Miko, on behalf of the Trust, agrees to submit to the City, and the City agrees to process and to submit to the City Council for consideration and action, the following revisions to the Project Approvals: a. Lot C, the private street providing access to the Subject Property from Smiley Heights Drive shall be relocated between Lots 6 and 7, with the boundaries of Lot 7 then relocated southerly toward the tract boundary, as generally depicted on Exhibit A attached hereto and incorporated herein by this reference. The parties recognize and acknowledge that these realignments shall result in the elimination of Condition 12 previously made part of the Project Approvals relating to the maintenance of a twenty (20) foot landscaped setback. 130/021319-0001 251121.08 PM02 -2- b. The terminus of Lot C shall be extended northerly toward the tract boundary, as generally depicted on Exhibit A attached hereto and incorporated herein by this reference. c. The existing irrigation line situated on the Subject Property serving the real property northerly of the Subject Property shall be reconstructed and relocated to flow at grade, as generally depicted on Exhibit A attached hereto and incorporated herein by this reference, subject to review and approval by the West Redlands Water Company, which is not a party to this Agreement. Additionally, it is understood that the irrigation line serves as a main line for West Redlands Water Company, and that the line also serves properties other than the Cunningham Property. The parties understand that West Redlands Water Company may require full unrestricted access to the line for maintenance and repair, and that a separate easement may need to be negotiated by Miko with West Redlands Water Company in connection with the development process for the Subject Property. d. Condition 10 previously made part of the Project Approvals relating to the maintenance and preservation of an arroyo area shall be clarified to ensure that its landscaping is maintained In this regard, the CC&Rs for the project shall designate Walter Johnson (and his successors and assigns), the'oowner of the adjoin r'g real property, as a beneficiary for purposes of the maintenance obligations and the enforcement thereof. In reciprocity, Mr. Johnson (and his successors and assigns) shall agree to maintain to the same standard the landscaping in the portion of the arroyo area situated on his property, and Miko (and his successors and assigns) shall be designated as a beneficiary for purposes of such maintenance obligation and the enforcement thereof. 130/021319-0001 251121.08 PM02 -3- 3. The City agrees to waives all filing and processing fees associated with the revisions to the Project Approvals described above in Section 2. 4. With respect to the extension of Lot C described above in Section 2.b, Miko agrees to convey to William E Cunningham and Beverley R. Cunningham (the "Cunninghams"), the owners of the real property northerly of the Subject Property (the "Cunningham Property"), or their successors and assigns, an easement for access purposes in the event that the Cunningham Property, or a portion thereof, hereafter is approved by the City for residential development not to exceed four (4) dwelling units taking access to or from Lot C. In such event, Miko agrees to cause the recordation of an appropriate easement deed, in a form satisfactory to the Cunninghams or their successors and assigns (see Exhibit B attached hereto), prior to or concurrent with the recordation of the final map for the approved subdivision. a. Prior to any City approval of such development, Lot C shall be a cul-de- sac terminating within the tract boundary, as generally depicted in Exhibit A attached hereto and incorporated by this reference, and the Cunninghams or their successors and assigns shall not have any right to use Lot C for regular access purposes. Miko agrees that the City shall be provided access across Lot C for emergency purposes involving the Cunningham Property. b. In the event the City approves such development, the cul-de-sac at the teiuiinus of Lot C shall, at the sole cost and expense of the Cunninghams or their successors and assigns, be removed, replaced with the alignment generally depicted in Exhibit A attached hereto and incorporated herein by this reference, and extended to the Cunningham Property. c. In the event the City approves such development, the Cunninghams or their successors and assigns shall pay to Miko a sum equal to the percentage of the total depreciated cost and expense of planning, designing, engineering, and constructing Lot C 130/021319-0001 251121.08 PM02 -4- represented by the number of residential lots on that portion of the Cunningham Property accessed by Lot C divided by the number of residential lots on both the Subject Property and those taking access to or from the Cunningham Property via Lot C. (For example, if seven (7) residential lots are created on the Subject Property and three (3) residential lots are created on the portion of the Cunningham Property that take access to or from Lot C, then the Cunninghams or their successors and assigns shall be responsible for thirty percent (30%) of the depreciated cost and expense.) Such sum shall be due and payable to Miko within twenty (20) business days following the recordation of a subdivision map for the Cunningham Property. d. In the event the City approves such development. and should Lot C as extended remain a private street, then the Cunninghams or their successors and assigns shall thereafter be responsible for a percentage of the subsequent costs and expenses associated with maintenance, repair, and/or reconstruction of the street and similar improvements situated within the Subject Property in accordance with the percentage set forth above in Section 4.c. 5. RID, on behalf of itself and its members (including but not limited to the signatories below), agrees not to oppose and to support the revisions to the Project Approvals described above in Section 2. 6. In the event that the City Council approves the revisions to, the Project Approvals described above in Section 2, RID, on behalf of itself and its members (including but not limited to the signatories below), agrees (a) not to file any legal action challenging such revisions, and (b) not to encourage, finance or otherwise participate in or support any such legal action. In any event, this Agreement shall be terminated and be of no further force and effect in the event of any legal action challenging any City -approved revisions to the Project Approvals, in which case Miko reserves the right to withdraw the application for the revisions. 130/021319-0001 251121.08 PM02 7. Concurrently with the execution of this Agreement, and subject to the approval of the Court, the parties agree to hold the Action in abeyance while Miko's application for a revised tract map is being processed. In the event that the City Council approves a revised tentative tract map in substantial conformance with the terms and conditions set forth in Section 2 of this Agreement, then RID, within five (5) business days of the City Council's approval, shall file a Request for Dismissal, dismissing the entire Action with prejudice.. In the event that the City Council fails to approve a revised tentative tract map in substantial conformance with the terms and conditions set forth in Section 2 of this Agreement, or in the event Miko determines to withdraw the application for a revised tentative tract map, then RID reserves the right to proceed with the Action. 8. This Agreement is and shall be binding upon and shall inure to the benefit of the predecessors, successors, parents, subsidiaries, affiliates, associates, representatives, assigns, directors, officers, agents, attorneys, and employees of each party. 9. In executing this Agreement, the parties acknowledge that they have consulted with and had the advice of attorneys of their own choice duly licensed to practice law in all California courts, and that they have executed this Agreement after independent investigation and without fraud, duress or undue influence. All parties acknowledge that they have waived certain rights in this Agreement and, in consultation with counsel of their own choice, have consciously and voluntarily have given an informed waiver those rights by entering into this Agreement. 10. Each of the parties agree that upon the City Council's approval of a revised tentative tract map in substantial conformance with the teitris and conditions set forth in Section 2 of this Agreement, and RTD's filing of a Request for Dismissal as provided in Section 7, the 130/021319-0001 251121.08 PM02 -6- other parties shall be released from any and all claims, demands, causes of action, rights, liens, losses, damages, obligations, and liabilities of any kind or character, whatsoever (whether known, unknown, or suspected or not suspected), at law or in equity or otherwise, which either party may now have or claim to have or to have acquired, against any released party, by reason of any matter, thing, event, condition, fact, circumstance or transaction relating to the Action. 11. In connection with such release, each of the parties expressly waives and relinquishes all the rights and benefits which it might otherwise have or claim to have under the provisions of 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 12. This Agreement may be executed in counterparts with each party executing a separate, but identical, copy. 13. Each of the parties hereto represents and warrants that it has not assigned or otherwise transferred (voluntarily, involuntarily or by operation of law) any right, title or interest in any claim which it has, may have, or may have had which is the subject of this Agreement except as described herein. Each of the parties hereto agrees to defend, indemnify, save and hold forever harmless the entities and persons released by such party under this Agreement from any claims, liabilities, demands, damages, costs and expenses, including attorneys' fees, incurred as a result of any person or entity asserting any such claim pursuant to such assignment or transfer. It is the intention of the parties hereto that this indemnity does not require payment as a condition precedent to recovery. 130/021319-0001 251121.08 PM02 -7- 14. Each of the parties hereto understands and acknowledges that this Agreement and the consideration transferred hereunder are being made solely for the purpose of avoiding the expense and the inconvenience of further litigation and it shall not be construed as an admission of any wrongful conduct or liability whatsoever. 15. No promise or inducement of any nature has been made other than those set forth in this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or modified except by a written instrument executed by all of the parties hereto. 16. Each of the parties hereto agrees to promptly prepare and execute all documents and pleadings necessary to consummate the settlement set forth in this Agreement. 17. Each of the parties hereto executing this Agreement represent and warrant that he/she is authorized and empowered to execute this Agreement individually or in any capacity set forth in this Agreement. 18. Each of the parties hereto shall bear all of their own costs, expenses and attorneys' fees incurred in connection with the Action, the claims settled by this Agreement, and the preparation of this Agreement. 19. This Agreement has been negotiated at arms' length between persons knowledgeable in the matter dealt with herein. In addition, each party has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law, including but not limited to, Section 1654 of the California Civil Code or any legal decision that would require interpretation of any ambiguities in this agreement against the parties that drafted it, is of no application and is hereby expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intentions of the parties and of this Agreement. 130/021319-0001 251121.08 PM02 -8- 20. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by the laws of the State of California. 21. If any provision of this Agreement is found, detennined and/or adjudicated to be illegal, invalid or unenforceable, then the same shall in no way affect the legality, validity, or enforceability of any other provision of this Agreement. NOW, THEREFORE, the parties hereto have signed this Agreement as of the date first hereinabove set forth. REDLANDERS FOR INFORMED DEVELOPMENT By By 'seer Mohr alter Johnson CITY OF REDLANDS and CITY COUNCIL OF THE CITY OF REDLANDS By: --71/1" 7 Attest: Mayor 130/021319-0001 251121.08 PM02 -9- 08/01/2002 10:22 FAX 909 788 5785 BUREE,WILLIAMS,SORENSEN ia002 PElER A. MIKO By: Peter A. Miko approved as to form: Burke, Williams & Sorensen Attorneys for Petitioner/P. laintiff Redlanders for informed Development Daniel J. McHugh City Attorney, City of Redlands .Attorney for Respondents/Defendants City of Redlands and City Council of the City of Redland Philip D. Kohn Rutan & Tucker, LLP Attorneys for Real Party in interest Peter A. Miko 1301021319-0001 251121.07 AlL102 -10- 08/01/2002 10:25 FAX 909 788 5785 uvul-uc luwal rm.-ruin' laAkR,LLF BURKE , I LI, _AMS , SORENSEN a 004 714-54E-3035 T- P.02/62 F-726 PETER. A. MIECO By: Peter A. I'vrOto aipproviali ass to zis;' srrst; Burkt:Wilian & Sorensen Astarneys for Pztitictr4=-Cilaintiff Redlaaders far Informed lacycicipricat Daztiel J. McHugh. City Attorney, CO of 144414n43 Attorney far TcespontlenrsineforKiantg Cit ofRe lands d City Council or the City- of RerThind PhiJjr Kant Rutan & Tucker, LIP Attorneys for Real Puny i.rt luterest Perk Mko I ZOiatil 44411 -10- Received !Lug -DI -CZ OS:04:01 Frete-5a5 9E5 0E65 Tu-RUTAN 4 TtCAIR.LLF Page gl RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: William E. and Beverley R. Cunningham 421 San Timoteo Canyon Road Redlands, CA 92373 (Space Above This Line for Recorder's Office Use Only) EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement") is entered into this day of , 2002, by and between THE CHII-SMAN IRREVOCABLE FAMILY TRUST ("Grantor"), and WILLIAM AND BEVERLY CUNNINGHAM., a married couple (collectively, "Grantee"). RECITALS A. The Trust, for which Grantor serves as a Trustee, owns fee title to a certain 28.72 acre parcel located in the City of Redlands, County of San Bernardino, State of California legally described as Tract No. 16042 pursuant to the map recorded in the official records of the County of San Bernardino, California, on in Book pages(s) (the "Trust Property"). B. Grantee owns in fee title that certain real property located adjacent to the Trust Property commonly known as 421 San Timoteo Canyon Road, City of Redlands, County of San Bernardino, State of California, the legal description for which is set forth in Exhibit "A" attached hereto_(the "Cunningham Property"). C. A private road identified as "Lot C" in the map attached hereto and incorporated herein by this reference as Exhibit `B" is located entirely on the Trust Property and provides access to a public right-of-way commonly known as Smiley Heights Drive. In consideration for the settlement of claims by and between Redlanders for Infoiuied Development, the City of Redlands, the City Council of Redlands, and Peter Miko and pursuant to the teams of the "Settlement Agreement and Mutual Release" dated , Grantor intends to grant to Grantee (their successors and assigns) a non-exclusive easement over and across Lot C for the purposes of ingress, egress, and access to the Cunningham Property in the event of an approved subdivision of the Cunningham Property, or a portion thereof, for four (4) or fewer residential units taking access to or from Lot C. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows: 1068/021319-0001 285935.06 PM02 1. Access Easement. Pursuant to the recordation of the final map for the duly - approved subdivision of the Cunningham Property into not more than four (4) residential units taking access to or from Lot C, Grantor agrees to convey to Grantee and their respective agents, employees, invitees, tenants, successors and assigns, an easement for the purposes of ingress, egress, and access over and across Lot C (the "Access Easement"). The Access Easement shall become effective upon the recordanon of the final map for said subdivision subject to the following conditions - (a) Extension of Lot C: Upon the approval of the City of Redlands of the subdivision of the Cunningham Property, or portion thereof, into not more than four (4) residential units taking access to or from Lot C, and the recordation of the final map therefor, the cul-de-sac at the terminus of Lot C may, at the sole cost and expense of the Grantee or their respective successors and assigns, be removed and replaced with the alignment generally depicted in Exhibit "C" attached hereto and incorporated herein by this reference, and extended to the Cunningham Property for those units talmng access to or form Lot C. (b) Payment for Depreciated Costs; Expenses: Upon the approval of the City of Redlands of the subdivision of the Cunningham Property, or portion thereof, into not more than four (4) residential units taking access to or from Lot C, the recordation of the final map therefor, and the election of Grantee or their respective successors and assigns to extend Lot C as described above, Grantee or their successors and assigns shall pay to Grantor (or it successors and assigns) a sum equal to the percentage of the total depreciated cost and expense of planning, designing, engineering, and constructing Lot C represented by the number of residential lots on that portion of the Cunningham Property accessed by Lot C divided by the number of residential lots on both the Trust Property and those taking access to or from the Cunningham Property via Lot C. (For example, if seven (7) residential lots are created on the Trust Property and three (3) residential lots are created on the Cunningham Property, then Grantee or their respective agents, employees, invitees and tenants, successors and assigns, shall be responsible for thirty percent (30%) of the depreciated cost and expense.) Such sum shall be due and payable to Grantor within twenty (20) business days following the recordation of an applicable subdivision map for the Cunningham Property. (c) )'nor to Final Map Recordation; No General Access Easement: Grantee and their respective successors and assigns shall not have any right to use Lot C for regular access purposes anytime prior to the approval and recordation of a final map for the subdivision of four (4) or fewer residential units upon the Cunningham Property as described above. (d) No Parking Easement: Nothing contained in this Agreement shall entitle the Grantee (or its successors, assigns employees, agents, licensees, or 1 ODV 2 t 319-0001 285935.06 aOt us!U2 -2- invitees) to park any vehicles on Lot C or any other portion of the Trust Property. (e) Further Subdivision. Upon the approval by the City of Redlands of a subdivision of the Cunningham Property, or a portion thereof, into not more than four (4) residential units taking access to or from Lot C, Grantee (or their successors and assigns) shall not thereafter further subdivide the Property in any manner that will result in the creation of more than a total of four (4) residential units upon the Cunningham Property taking access to or from Lot C. (f) Maintenance Costs: Upon the approval of the City of Redlands of the subdivision of the Cunningham Property, or a portion thereof, into not more than four (4) residential units taking access to or from Lot C, the recordation of the final map therefor, and the election of Grantee or their respective successors and assigns to extend Lot C as described above, Lot C as extended shall remain a private street, and Grantee (or its successors and assigns) shall thereafter be responsible for a percentage of the subsequent costs and expenses associated with maintenance, repair, and/or reconstruction of Lot C in accordance with the formula set forth above in paragraph (b). 2. Indemnity Grantee (and its successors and assigns) hereby agrees to indemnify, protect, save, defend and hold Grantor (and it successors and assigns) hatiiiless from any and all loss, damage, liability or expense, including court costs and reasonable attorneys' fees, which Grantor may sustain, incur or become liable for, including loss of or damage to property or injury to or death of persons and fines arising in any manner out of or in connection with (i) the use of the Access Easement by Grantee (or their successors, assigns, employees, officers, agents, licensees, or invitees); or (ii) the negligence or willful misconduct of Grantee (or their successors, assigns, employees, officers, agents, licensees, or invitees) in, on, or about the Access Easement. 3. Priority of Agreement. This Access Easement shall be subject to (i) all general and special real property taxes, assessments and bonds, not delinquent; and (ii) all covenants, conditions, restrictions, reservations, rights, rights of way, easements and other matters of record, existing as of the date this Agreement is recorded in the San Bernardino County Recorder's Office. 4. Breach Does Not Invalidate Mortgage. Breach of the Access Easement shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Trust Property, or any part thereof or interest therein, whether or not said mortgage or deed of trust is subordinated to this Agreement; but, unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Agreement shall be binding and effective against the holder of any such mortgage or deed of trust and any owner of the Trust Property or any part thereof whose title thereto is acquired by foreclosure, trustee's sale, or otherwise. 1068/021319-0001 285935.06 PM02 -3- 1068/021319-0001 285935.06 PM02 EXHIBIT "A" LEGAL DESCRIPTION OF CUNNINGHAM PROPERTY EXHIBIT "C" TO EASEMENT AGREEMENT EXHIBIT "C" DEPICTION OF PROPOSED EXTENSION OF LOT C UPON APPROVAL OF THE CUNNNGHAM PROPERTY SUBDIVISION 1068/021319-0001 285935.06 PMO2 -3-