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1 RESOLUTION NO. 86 'i?'l
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A MUTUAL RELEASE BETWEEN WESTERN EMPIRE SAVINGS
3 AND LOAN ASSOCIATION AND THE CITY OF SAN BERNARDINO.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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6 SECTION 1. The Mayor of the City of San Bernardino is
7 hereby authorized and directed to execute on behalf of said
8 City a Mutual Release with We.stern Empire Savings and Loan
9 Association releasing the parties from all rights, claims,
10 demands, obligations, debts, duties, liabilities, guarantees
11 or other causes of action relating to the lawsuit entitled
12 Western Empire Savings and Loan Association v. Dunn Delaware
13 Corporation, et. al. A copy of the Mutual Release is attached
14 hereto, marked Exhibit "A" and incorporated herein by
15 reference as fully as though set forth at length.
16 I HEREBY CERTIFY that the foregoing resolution was duly
17 adopted by the Mayor and Common Council of the City of San
18 Bernardino at all ",J:j()l1rnpn rpQ:"1"r
meeting thereof, held on
19 the ??nn day of
20 to wit:
np.("'~mhp.r
, 1986, by the following vote,
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AYES:
Council Members R~illy M~rkq Fr~7;pr
~t-ri("'klp.r
NAYS:
l\Tf"'\nA
ABSENT:
rr"'lllnf"'i 1
Mpmhp.r~ F.aTr~n~ He.rn~nnA7
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-City CI€1:k
12/19/86
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The foregoing resolution is hereby approved this .-<:'f/60 day
of December , 1986.
Approved as to form:
;:~~ jjll~~
cIty At orn'ey
12/19/86
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MUTUAL RELEASE
THIS AGREEMENT (hereinafter the "Agreement") is made
this 19~~ day of December, 1986, between Western Empire Savings
and Loan Association ("Western Empire") and the City of San
Bernardino ("City").
Recitals
1. Western Empire has filed a lawsuit against the City,
and certain other Defendants, in the Orange County Superior Court,
Case No. 47 86 92 (herein sometimes referred to as the
"Lawsuit").
2. Western Empire, Plaintiff in the Lawsuit, has in
good faith asserted certain claims and contentions therein, which
the City disputes and denies.
3. Western Empire has entered into a settlement of the
Lawsuit with all of the other Defendants, which settlement
includes dismissals with prejudice of the Lawsuit as to said
Defendants.
4. Based upon Western Empire's settlement with the
other parties to the Lawsuit, and upon assurances by the City's
Attorney's office that this Release would be recommended to the
City for approval, Western Empire has also caused to be filed a
Request for Dismissal of the Lawsuit as to the City.
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5. Pursuant to negotiations between Western Empire and
the City, and to eliminate the possibility of further litigation
between them concerning the sUbject matter of the Lawsuit, with
all of its attendant costs and expenses, Western Empire and the
City now desire to release one another from all claims in
connection with the Lawsuit, and the sUbject matter thereof, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING FACTS,
Western Empire's dismissal of the Lawsuit, and the mutual promises
set forth herein, and contingent upon the full and faithful
performance thereof, Western Empire and the City hereby agree as
follows:
Aqreements
1. Incorporation of Recitals. The recitals set forth
above are incorporated herein by this reference.
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which against them Western Empire or the City may now have, claim
to have, hereafter have, or hereafter claim to have, arising out
of, based upon, or which directly or indirectly relate to, the
subject of the Lawsuit, the Lawsuit itself, or the filing or
prosecution thereof.
3. Admissions. The releases set forth herein are the
result of a compromise of disputed claims and neither the
releases, nor any provision of this Agreement, shall be deemed to
be an admission of the truth of the allegations, claims, or
contentions of any party relating directly or indirectly to the
Lawsuit.
4. Section 1542 Waiver. It is understood and agreed
that the foregoing release includes all claims of every nature and
kind whatsoever, known or unknown, suspected or unsuspected,
asserted in the Lawsuit or arising in connection with the subject
of said Lawsuit. All rights under Section 1542 of the Civil Code
of California with respect to the matters released by this
agreement are hereby expressly waived. Section 1542 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 ex~cuting a
release, which, if known by him, must have
materially affected his settlement with the
debtor."
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5. Change in Facts. Western Empire and the City each
acknowledges and agrees it may hereafter discover facts different
from or in addition to those it now knows or believes to be true
with respect to the above Lawsuit, and agrees that this Agreement
and the releases contained herein shall be and remain effective in
all respects, notwithstanding such different or additional facts
or the discovery thereof.
6. Survival of Riqhts Hereunder. Notwithstanding the
releases contained herein, all rights and obligations created
under and pursuant to this Agreement shall survive the execution
of this Agreement and the releases contained herein.
7. Representations and Warranties. Western Empire and
the City each represents and warrants that:
(a) It has received independent legal advice from
attorneys of its own choice regarding this Agreement, or waived
the right to receive such advice:
(b) It has made such investigation of the facts
pertaining to this Agreement as it deems necessary:
(c) It has read this Agreement and signed it of
its own free will: and
(d) It has taken all corporate action necessary for
approval of this Agreement.
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8. Representations and Warranties Re Assignment.
Western Empire and the City each represents and warrants that it
has not heretofore assigned, or transferred, or purported to
assign or transfer, to any person, firm or entity whatsoever, any
of the matters released hereunder.
9. Attorneys' Fees. If any action is commenced between
Western Empire and the City in connection with the enforcement of
any provisions of this Agreement, the prevailing party shall be
entitled to reasonable costs and expenses, including attorneys'
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fees.
10. Further Instruments. Western Empire and the City
shall, from time to time, execute and deliver such further
instruments as may reasonably be required to effectuate the intent
of this Agreement.
11. Successors and Assigns. All of the terms of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by each of the parties released and their respective
employees, agents, officers, directors, shareholders, transferees,
predecessors, successors, subsidiaries, parents, affiliates,
attorneys, and/or aSSigns, and all persons claiming by or through
them.
12. Notices. Any notice required or desired to be given
under this Agreement shall be personally served or shall be sent
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by certified mail to the appropriate address shown below, until
notice of a different address is given. Any notice given by
depositing it with the United States Postal Department as
certified mail, postage prepaid, return receipt requested, shall
be deemed given 24 hours after deposit.
Western Empire:
WESTERN EMPIFE SAVINGS AND LOAN ASSOCIATION
17951 Cowan Street
Irvine, California 92714
With a copy to:
Frandzel & Share
A Law Corporation
18300 Von Karman Avenue, Suite 320
Irvine, California 92715
Attention: Michael R. Pfeifer, Esq.
City:
THE CITY OF SAN BERNARDINO
City Clerk's Office
300 N. "0" Street, 2nd Floor
San Bernardino, California 92418
With a copy to:
Deputy City Attorney
City of San Bernardino
300 N. "0" Street, Room 6678
San Bernardino, California 92418
Attention: Cynthia Grace, Esq.
13. Entire Agreement. This Agreement contains the
entire understanding of the parties. Each party agrees that this
Agreement is being executed without reliance upon any other
statements or representations, whether written, oral or otherwise,
by the persons, parties or entities released, or their agents,
attorneys or representatives, or any other person whomsoever.
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14. Modifications. No modification of, deletion from,
or addition to this Agreement shall be effective unless in writing
and executed by both the City and Western Empire.
15. Severability. In the event any clause, sentence,
term or provision of this Agreement shall be held by the court of
any competent jurisdiction to be illegal, invalid or unenforceable
for any reason, the remaining portions of this Agreement shall
remain in full force and effect.
16. California Law. This Agreement and its application
shall be governed by the laws of the State of California.
17. Captions. The captions of the paragraphs of this
Agreement are solely for the convenience of the undersigned, are
not part of this Agreement, and shall not be used for the
interpretation of any provision of this Agreement.
18. Authority to Execute. Each individual executing
this Agreement on behalf of any of the undersigned hereby
represents and warrants that he or she has been fully empowered to
execute this Agreement, and that all necessary action and
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obtained.
approvals for the execution of this Agreement have been taken and
Dated: December~, 1986
Dated: December c:l~ , 1986
BY:
BY:
APPROVED AS TO FORM AND CONTENT:
Dated:
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Dated: D-eGe...lscr
67600-029
0202P
II.(
, 1981
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BY:
By:
WESTERN EMPIRE SAVINGS AND
LOAN A SOCIATION
A Ca ornia corporation
Its
CITY OF SAN BERNARDINO
A California municipality
Its
FRANDZEL & SHARE
A Law Corporation
MICHAEL GERARD FLETCHER
MICHAEL R. PFEIFER
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Attorneys for Plaintiff Western
Empire Savings and Loan
Association
CITY ATTORNEYS OFFICE
City of San Bernardino
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CYNTHIA GRACE
Deputy City Attorney
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FRANDZEL & SHARE
A Law Corporation
18300 Von Karmen Avenue
Suite 320
Irvine, California 92715
(714) 476-3020
cC
Attorneys for Plaintiff
WESTERN EMPIRE SAVINGS AND LOAN ASSOCIATION
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
WESTERN EMPIRE SAVINGS AND )
LOAN ASSOCIATION, a California)
corporation, )
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Plaintiff,
vs.
DUNN DELAWARE CORPORATION,
a Delaware corporation;
B & D VII, LTD., a California
partnership; STAGHORN
CORPORATION, a Nevada
corporation; DUNOCO
DEVELOPMENT CORPORATION,
a California corporation;
DUNOCO DEVELOPMENT
CORPORATION, a Texas
corporation; DUNCAL
CORPORATION, a California
corporation; LONNIE M. DUNN,
JR., aka LONNIE M. DUNN, aka
LONNIE M. DUNN, II, an
individual; PACIFIC NATIONAL
BANK, a banking association;
THE CITY OF SAN BERNARDINO,
a California municipality;
and DOES 1 through 300,
inclusive,
Defendants.
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II
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Case No. 47 86 92
STIPULATION FOR ORDER
VACATING PRELIMINARY
INJUNCTION, CANCELLING
BOND, AND EXONERATING
SURETY
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TO: THIS HONORABLE COURT:
The parties herein, by and through their respective
counsel of record, hereby stipulate as follows:
1. On June 30, 1986, this Court, by the Honorable Harmon
G. Scoville, Judge, issued a preliminary injunction against
Defendants The City of San Bernardino, Dunn Delaware Corporation,
B & D VII, Ltd., their agents, servants, employees,
representatives, and all persons acting in concert or
participation with them, from doing certain acts. A Bond was
fixed in the amount of $10,000, and an Undertaking in that amount
issued by Insurance Company of North America ("Surety") was posted
by Western Empire.
2. The parties are in the process of consummating
settlement agreements for final resolution of this case, and
agreements have already been reached between some of the parties
such that the need for the preliminary injunction has been
eliminated. The parties therefore request that the Court enter
its order vacating the above-referenced preliminary injunction
forthwith without prejudice, cancel the above-referenced Bond, and
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1 fully exonerate the Surety.
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Dated:
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Dated:
Dated:
Dated:
;~76097'029
01871> .
December ~, 1986
December ~, 1986
December ~, 1986
December ~ , 1986
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((
FRANDZEL & SHARE
A Law Corporation
MICHAEL GERARD FLETCHER
MICHAEL R. PFEIFER
BY:~
Attorneys for Plaintiff
Western Empire Savings and
Loan Association
BUCHALTER, NEMER, FIELDS,
CHRYSTIE & YOUNGER
BY:
NE GUERIN
torneys for Pacific
ational Bank
FRIEDEMANN, STONE, LA SCALA,
KETO & FUGAL
BY, Kldfl1-JL
OHN I
Attorneys for Dunn Delaware
Corporation, B & D VII,
Ltd., Staghorn Corporation,
Dunoco Development
Corporation (California),
Dunoco Development
Corporation (Texas), Dunca1
Corporation, and Lonnie M.
Dunn, Jr.
~ dk~ 5v~
CYNTHIA GRACF.
Deputy City Attorney
AttoTneys for The City of
San Bernardino