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HomeMy WebLinkAbout1992-462 1 RESOLUTION NO.- 5927~,,2 2 3 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 4 SAN BERNARDINO, APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE BY AND BETWEEN SCOTT SPECIALTY GASES, INC. AND THE CITY OF SAN 5 BERNARDINO. 6 WHEREAS, Scott Specialty Gases, Inc. (Scott), formerly known 7 as Scott Research Laboratories, Inc., is the owner of a certain 8 real property located on Cajon Blvd. in San Bernardino, California; 9 and 10 WHEREAS, the city of San Bernardino (city) desires to obtain 11 a portion of the property for use by the Water Department and Scott 12 has contested the need and amount of land needed by the city; and 13 WHEREAS, on or about May 19, 1992, the City filed an action 14 in the San Bernardino County Superior Court, Case No. 271377 for 15 eminent domain against Scott; and 16 Whereas, the parties hereto mutually desire to settle all of 17 the present and possible future differences, disputes and clauses 18 relating to and arising out of the above-referenced action; and 19 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL 20 OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 21 SECTION ONE: The Mayor of the City of San Bernardino is 22 hereby authorized and directed to execute the Settlement Agreement 23 and Mutual Release by and between Scott Specialty Gases, Inc. and 24 the city of San Bernardino, as set forth in Exhibit "1" attached 25 hereto and incorporated herein by reference as though fully set 26 forth at length herein. 27 BE IT FURTHER RESOLVED that a copy of this Resolution be 28 attached to said Grant Deed, and that the same be recorded in the - 1 - 11/24/92 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE BY AND BETWEEN SCOTT SPECIALTY GASES; INC." AND THE CITY OF SAN BERNARDINO. 1 Office of the County Recorder of San Bernardino County. 2 I HEREBY CERTIFY that the foregoing resolution was duly 3 adopted by the Mayor and Common Council of the City of San 4 Bernardino at a regular meeting thereof, held 5 on the 7th December , 1992, by the day of 6 following vote to wit: 7 Council Members: 8 ESTRADA 9 REILLY 10 HERNANDEZ 11 MAUDSLEY 12 MINOR 13 POPE-LUDLAM 14 MILLER 15 16 17 ABSENT ABSTAIN NAYS AYES x x x y y y y iJ?M^LZ (~-(~~- Rach~l Clark, CITY CLERK 18 ~he foregoing resolution is hereby approved this '\\-~') day of ~~<.::.~"",'Lw,,,,- , 1992. 19 20 21 22 23 APPROVED AS TO FORM 24 AND LEGAL CONTENT: 25 JAMES F. PENMAN City Attorney 26 27 - 2 - e/n"'Yn.4~ 28 Res 92-46l- SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Nutual Release ("Agreement") is entered into by and between Scott Speciality Gases, Inc. formerly known as Scott Research Laboratories, Inc. ("SCOTT") and city of San Bernardino ("CITY"). said parties shall be collectively referred to as "the parties." It is intended by the parties hereto to settle and extinguish the obligations, disputes and differences hereinafter described. 1. Recitals. 1.1 SCOTT is the owner of certain real property located on Cajon Blvd. in San Bernardino, California. The legal description to said property is attached hereto as Exhibit "A". 1.2 CITY desires to obtain the portion of said property described in Exhibit "C" for use by the Water Department. SCOTT has contested the need and amount of land needed by CITY. 1.3 On or about May 19, 1992, CITY filed an action in the San Bernardino County Superior Court, Case No. 271377 for eminent domain against SCOTT. Said action shall be hereafter referred to as "the action." 1.4 The parties hereto mutually desire to settle all of their present and possible future differences, disputes and claims relating to and arising out of the above-referenced action and, therefore, the parties agree as follows: 2. Incorporation of the "Recitals". The "Recitals" of this Agreement constitute a material part of this Agreement and "EXHIBIT 1" _..,"\Sod 1 are incorporated herein by this reference as though fully set forth hereat. 3. Dismissal with preiudice of Complaint. CITY will dismiss with prejudice the Complaint filed in the action. CITY withdraws all allegations made in said Complaint. SCOTT withdraws all affirmative defenses alleged in their answers to said Complaint. Each party shall bear its own costs and attorneys' fees. 4. Release bv SCOTT. In consideration for the provisions of this Agreement and the payment of six Hundred Twenty-One Thousand Four Hundred Forty Seven and 40/100 Dollars ($621,447.40) by CITY, the conveyance of the property set forth on Exhibit "B" from CITY to SCOTT, the granting of a right of way from CITY to SCOTT as described in Exhibit "C" and the installation of 2-8 inch tees on either Medical Center Drive or Cajon Blvd, SCOTT releases, acquits and forever discharges CITY and their respective predecessors, successors, partners, heirs, assigns, brokers, employees, , shareholders, attorneys, officers, directors, agents, associates, notaries, firms, insurance carriers, subsidiaries, divisions or affiliated corporations, whether previously or hereinafter affiliated in any manner, from any and all claims, demands, causes of actions, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, whether known or unknown, suspected or claimed, which SCOTT ever had, now has, or may claim to have as of the date of this Agreement against CITY by reason of any act or omission concerning any matter, cause or thing, alleged in the action or 2 F~-:- which could have been alleged in the action. CITY shall pay all escrow costs and fees and all transfer taxes assessed in connection with this transaction. 5. Release bY CITY. In consideration for the provisions of this Agreement and the conveyance by SCOTT to CITY of the property described on Exhibit "C", CITY hereby acquits and forever discharges SCOTT and each of its respective predecessors, successors, partners, heirs, assigns, brokers, employees, shareholders, attorneys, officers, directors, agents, associates, notaries, firms, insurance carriers, subsidiaries, divisions or affiliated corporations, whether previously or hereinafter affiliated in any manner, from any and all claims, demands, causes of actions, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, whether known or unknown, suspected or claimed, which CITY ever had, now has or may claim to have as of the date of this Agreement against SCOTT by reason of any act or omission concerning any matter, cause or thing, alleged in the action or which could have been alleged in the action or in any way relating to the conveyance of the property described in Exhibit "c" or to the property or its condition or contents. 6. Complete Release: California civil Code. Section 1542. The releases set forth in paragraphs 4 and 5 of this Agreement are general mutual releases of the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the releases and are intended to encompass all known and unknown, foreseen and unforeseen claims 3 ------._---...............................-_.._-~--.'_...............-.. -,.'""V which SCOTT, on the one hand, and CITY, on the other hand, may have against each other, with respect to the above-referenced litigation action. The parties hereto each acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages and liabilities of any nature whatsoever that are the subject of the releases set forth herein, and the parties each expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. Further, the parties agree that they each waive and relinquish all rights and benefits they may have under section 1542 of the civil Code of the State of California. That Section reads 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 exe- cuting the release, which if known by him must have materially affected his settlement with the debtor." 7. Settlement of Claims. The parties hereto acknowledge that this Agreement is a settlement of disputed claims and is not an admission of liability by any of the parties hereto. 8. No Assianment. The parties hereto each warrant that they have made no assignment, and will make no assignment of any claim, chose in action, .right of action or any right of any kind whatsoever embodied in any of the claims and allegations made in the action and that no other person or entity of any kind had or 4 " has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims asserted in said action. 9. Aqreement to Refrain from Institutinq Future Pro- ceedinqs. The parties hereto each covenant and agree never to commence, aid in any way, prosecute or cause to be commenced or prosecuted, any action or other proceeding based upon any claims, demands, causes of action, obligations, damages or liabilities which are intended to be settled by or released under this Agreement or which arise out of the conveyance of the property described on Exhibit "c" or the condition or contents of the - property. Each party agrees to indemnify and hold harmless the other party hereto from any and all claims, including court costs and attorneys' fees, from or in connection with any action or proceeding brought by the indemnifying party or their agents or employees which are contrary to the provisions of this Agreement. 10. Heirs. Successors and Assiqns. This Agreement and all terms and provisions hereof shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. 11. Escrow. The parties agree to enter into an escrow at First American Title Insurance company, Escrow No. 71008 A in order to effectuate the transfer of the real property and payment of money contemplated by this Agreement. The costs of escrow shall be borne by CITY. Each party shall fully cooperate with the expeditious closing of said escrow. The escrow instructions 5 ---;;- are attached hereto as Exhibit "0" and form a material part of this Agreement. 12. Counterparts. This Agreement may not be executed in multiple counterparts. 13. Gender and Number. Whenever required by the context, as used in this Agreement, the singular number shall include the plural, and the masculine gender shall include the feminine and neuter. 14. Advice of Counsel. This Agreement in all respects has been voluntarily and knowingly executed by the parties hereto on advice and with approval of their respective legal counsel. 15. Severabilitv. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, and the validity of which shall remain unaffected. 16. Entire Aqreement. This Agreement constitutes the entire agreement between the parties who have executed it with respect to the subject matter hereof and supersedes any and all other agreements, understandings, negotiations or discussions, either oral or in writing, express or implied, between the parties hereto. The parties to this Agreement each acknowledge that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty 6 and that no representation, inducement, promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the parties to this Agreement. 17. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any time or more times be deemed a waiver or relinquish of any right or power at any other time or times. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date set forth hereinafter. DATED: , 1992 "SCOTT" Scott Specialty Gases, Inc. formerly known as Scott Research Laboratories, Inc., a corporation organized under the laws of the Commonwealth of Pennsylvania DATED: , 1992 By: Its /1 "CITY" / 1/ //;/7 -1 ! '1 ~ ~~//.c,' city of san Be~nardino By: .:;z~. ~ Its ..!".:::'PRi~\![=J i;.S .;"() ~-;J~':) i.\C :..~:~~. ,,_ :>Y.:r::.;';";". :,.:L (1 ?7 -- f-t~ 7 --,; Exhibit "A" The North twenty-four (24) acres of Lot 2, Block 83, of Rancho San Bernardino, per plat recorded in Book 7, page 2, of Maps, Official Records of San Bernardino County; EXCEPT (a) that portion thereof lying within and North of the railroad right of way, and (b) that portion thereof conveyed to the State of California by deed dated June 17, 1937, recorded November 4, 1937, in Book 1242, page 57, Official Records of said County; " '-T~ ~' ,'., ';"'- . "'J-' " , LEGAL DESCRIPTION SAN BERNARDINO MUNICIPAL WATER DEPARTMENT 1249 RESERVOIR SITE QUITCLAIM TO SCOTT'RESEARCH LABORATORIES, INC, March 20, 1992 Assessor's Parcel Number: 148-022-04 Ptn. , That rortion of the Muscupiabe Rancho, si tuated in S;,ction 29, Township 1 Nortn, Range 4 West, San B~rnardino Meridian, if said lines were extended across said Rancho, as per plat' recorded in Book 7 of Maps, Page 23, records of the County of San Bernardino, state of California, being more particularly described as follows: BEGINNING at a point along the South line of said Muscupiabe Rancho bearing South 890 52' 55" East a distance of 772.90 feet from the East line of Medical Center Drive (formerly Muscott Street) being 82.50 feet in width, said point also being the intersection of said South line with the centerline of that certain drainage easement in favor of San Bernardino County Flood Control District described in deed recorded July 9, 1954, in B90k 3418, Page 383, Official Records of said County, hereinafter referred to as Easement A; Thence continuing along said south line South 890 52' 55" East a distance of 89.14 feet to an intersection of said South line with the Southwesterly line of Cajon Boulevard being 60 feet in width; Thence along said Southwesterly line North 380 32' 32" West a distance of 73.68 feet to an intersection with the Northeasterly prolongation of a line parallel with and 10 feet Northwesterly of. measured at right angles from said centerline of Easement A; Thence along said prolongation South 440 57' 30" West a distance of 81.14 feet to said South line of the Muscupiabe Rancho; Thence along said South line South 890 52' 55" East a distance of 14.10 feet to the TRUE POINT OF BEGINNING. CONTAINING: 0.068 NET ACRES The Basis of Bearing for the hereinabove description is the centerline of Medical Center Drive (formerly Muscott Street) taken as North 000 01' 30" East as per Map on file in Book 67 of Records of Survey, Page 84. records of said County. END DESCRIPTION nHlBIT B - o. - or " \., / SAN BERNARDINO MUNlCfPAL WATER bI=~ 1249 RESERVOIR SITE QUITCLAIM TO SCOTT RESEARCH LABORATORIES, INC, MARCH 20, 1992 ..::.... \...... \ \';: ENGINaRlNG DESIGN CENTr:R AND CONSUL nNG PROFESSIONALS INC, 350 ~ST FIFTH STRFIT - SUITE: 102 SAN BERNARDINO {'-WrORNIA 9240/ (7H) 381-99'6 (7/4) 38/-9515 FAX PREPARED UNDER THE SUPERVISION OF: . / / ~ 8z-J~ '/z,l<M- , .tw. APPLEGEr R.C.Eo 2748/ / ~ ,REGISTRAnON EXPIRES: SEPT. 30, 1993 ,~ . il SCALE: I" ~ 200' / / I [fmA1~rr i '" t:: C ~ ~ (;.~7TH STREET>- /(FLOCATW 15 ~ ~ "'"I ~~ c>'" gjg ~IP uc C ~~ /'Y e ~ ::t , , . ....1 I. ~ ,~:".- S 44'57'30" W MUSCUPIABE 8U4' RANCHO APN 148-022-04 PTN, CONTAINS: 0,068 NET ACRE RANCHO SAN BERNARDINO /. --0.. g ~ S.B.C,F.C,D, STORMDRAlN r EASEMENT PER 3418/383 O,R, ~ 'Y ~ SOUTH UNE OF THE NORTH 24 ACRES OF LOT 2. BLOCK 83. R's,B, PER RS 80/82 AND RS 18/82 /" '\ ~ ~ -.: ~ ~ ~ -1*' .... 24TH STREET ~ .... ... , .~, EXHIBIT "A" LEGAL DESCRIPTION SAN BERNARDINO HUNICIPAL WATER DEPARTHENT 1249 RESERVOIR SITE PROPERTY ACQUISITION September 2. 1992 A~sessorls Parcel Number: 148-122-01 Ptn. That portion of the North twenty-four (24) acres of Lot 2. Block 83. of Rancho San Bernardino, as per plat recorded in Book 7, P~qe 2 of Maps. Official Records of the County of San Bernardino. Zt.lte of California, being more particularly described as follows: COHHENCING at the point of intersection of the South line of said North twenty-four (24) acres of Lot 2, Block 83 of Rancho San Bernardino with the East line of Medical Center Drive (formerly Huscott Street) being 82.50 feet in width, said point being shown on map on file in Book 67 of Records of Survey, Page 84, records of said County; Thence along said East I ine North 000 01' 30" East a distance of 10.91 feet to the TRUE POINT OF BEGINNING, said point being hereinafter referred to as Point "A"; Thence continuing along said East 1ine North 000 01' 3011 East a distance of 613.66 feet to the beginning of a non-tangent curve concave Southeasterly having a radius of 470 feet and a radial line from said curve bearing South 740 22" 3711 East said curve also being described in deed in favor of the State of California recorded in Book 7941, Page.774, Official Records of said County; Thence Northeasterly along. said curve through a central angle of 150 24' 31" a distance of 126.40 feet to the beginning of a compound curve concave Southeasterly having a radius of 870.00 feet; Thence IInrtheasterla- along said last mentioned curve through a central ar.c;;le of 04 00' 29" a distance of 60.86 feet to a point along the North line of said Rancho San Bernardino; Thence c..~onq said North line South 89Q 52' 55" East a distance of 075.80 feet to a line parallel with and 10 feet Northwesterly of measured at right angles from the centerline of that certain drainage easement in favor of San Bernardino County Flood Control District as described in deed recorded July 9, 1954, in Book 3418. Page 383, Official Records of said County said line hereinafter being referred to as Line "A"; Thence aloog said line South 440 57' 30'" West a distance of 994.45 feet to the beginning of a tangent curve southeasterly having a radius of 335 feet; thence southwesterly along said curve through a central angl e of 160 09' 10" a distance of 94.44 feet to said Zast line of Medical Center Drive and the TRUE POINT OF BEGINNING. See++- ~'S~VI"'''~ -to llo\,.\J. "'Go Pr"ph+..." : The Basis of Bearing for the hereinabove descJiption is the centerline of Hedical Center Drive (formerly Huscott Street) taken as North 000 01'.30" East as per Map on file in Book 67 of Records of Survey, Page 84, records of said County. CONTAINING: 6.507 NET ACRES RESERVING an easement for ingress and egress and public utility purposes upon, over, under and across that portion of the hereinabove described parcel lying South of the following described line: Conunencing at hereinabove described Point "Au; thence along said East line of Medical Center Drive North 000 aI' 30" East a distance of 40 feet to the TRUE POINT OF BEGINNING; Thence I eaving said East I ine North 890 58' 30" East a distance of ~'j.85 feet to a point of termination at hereinabove described I.ine "A". '. END DESCRIPTION nmr:m c .~" '1' .. '.,. -, .-;:> ~:"'~ -':~; f. - .. ---- SAN BERNARDINO MUNICIPAL WATER bEl--"""'HENT 1249 RESERVOm SITE PROPERTY ACQUISITION MARCH 20, 1992 REVISED <::J/Z/<::JZ CNClNIT'RINC OESlCN CCN TF:R AND CONSUL nNC PROFESSIONALS INe. JSO .cST FIFTH STRUT - Sill/[ '02 SAN BCRNARDINO ~AJ.JFORN!." 92401 (7~4) J8,-gr!$ (7'4) J8'-95/5 FAX PREP AR[V UNO[/? THf SUP[/? VISION OF. *- " / \ B4)~ ,It,/~ , J. w. PLfCCT .C.f. 2748/ / "'\ ,RfCfSTRAnON CXP/RfS: SO'T. JO. '99J ':\ "'\' , ':\ ~' . SCl.Lf: ,. - 200' " / c f&..~~ ~~ MUSCUP/~8E RANCHO lb. ' ,-.P.&>, 26.15' S 89'52'SS. f ;'i. . 675.80' RNlCHO ~ OfLTA _ 04'00'29. SAN 80/NAROINO ~/ ' R-870' L-60.86' T-JO, 44 , r onTA - 7S74':17. .>> R-470' L-'26.4O' T-US8' r "'?...,. '// ~ J>o- "/ o. c~ ~ #'N 748-'22-07 PTN. r CONTAJNINC: 6.JJ:1 NCT ACRfS ~ 4: S.B.C.F.C.O. STORuORAJN ~/ o.SEJ.lOlT PfR :1478/:18J O.R. ." ~1717/ ~.,\)~ ;/ l'l1J. r slf r ~ I ~' Q "1'.o,C, SOUTH UNf OF THf NORTH 24 ACRfS OF LOT 2, BLOCK B:1, R.S.B, PO/ RS 80/82 "NO RS 18/82 29.94' I ... ~ '" l:: 8 !g ~ f ~TT/{ STREIT>- RtLOCl. 7flll ~ ~ ;~ : 51>: iii b ~~~ .. .. ~ 1.....~'!........,~1iIp.JT' ~L~I~~::f:.,C>> .A.e1'.I...,.....'t::'n-4~~b' ~Ii& 1t..1Go-".~lkGolZ~ ",.......0 Pu~fC. LlT"'1UT""f P\JA:FL..- .lEa .