SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is made and entered into by and between the CITY OF CHINO, a municipal corporation (hereafter called "CHINO"), and the APPROPRIATIVE POOL, created by the Judgment dated January 27, 1978 in the case entitled "Chino Basin Municipal Water District v. City of Chino, Case No. RCVRS 51010" in the Superior Court of the County of San Bernardino County (hereafter called the "AP").
This Agreement is made and entered into with reference to the following facts:
A. On June 26, 2024, the AP filed a motion in the San Bernardino Superior Court, Case No. RCVRS 51010 entitled "APPROPRIATIVE POOL NOTICE OF MOTION AND MOTION FOR AWARD OF EXPENSES, INCLUDING ATTORNEY FEES PER CONTRACT AND CIVIL CODE SECTION 1717; MEMORANDUM OF POINTS AND AUTHORITIES" (hereafter called the "AP Motion").
B. Through the AP Motion, the AP seeks an order compelling the City of Chino ("CHINO"), the Monte Vista Water District ("MVWD"), the Monte Vista Irrigation Company ("MVIC") and the City of Ontario ("ONTARIO") to pay the total amount of $262,761.21, which consists of AP general expenses and some legal expenses to defend the Appeal described below and includes the specific amount of $31,380.51 to be paid by CHINO ("First Amount") and other specific amounts to be paid by MVWD, MVIC and ONTARIO as set forth in the AP Motion.
C. The further amount of $196,687.01 sought by the AP Motion, which includes the specific amount of $36,321.02 to be paid by CHINO ("Second Amount") and other specified amounts to be paid by MVWD, MVIC and ONTARIO as set forth in the AP Motion, is the amount the AP asserts is due from CHINO, MVWD, MVIC and ONTARIO as their combined share of the legal expenses incurred by the AP to defend the appeal of Judge Reichert's Order dated April 22, 2022 in San Bernardino Superior Court, Case No. RCVRS 51010 brought by CHINO, MVWD, MVIC and ONTARIO in the appeal entitled "Chino Basin Municipal Water District v. City of Chino," Fourth Appellate District, Division Two, No. E079052 ("Appeal").
The legal expenses sought by the AP Motion were paid to or are due to John Schatz and Horvitz & Levy LLP, attorneys for the AP, and Ag Pool arising out of their services to defend the Appeal or related to the defense of the Appeal, as set forth in the declarations of said attorneys contained in Exhibit H attached to the Declaration of John Schatz in Support of the AP Motion.
E. CHINO is willing to pay the First Amount of $31,380.51 and the Second Amount of $36,321.02, as its portion of the AP general expenses and the AP legal expenses including Ag Pool incurred to defend the Appeal, notwithstanding the fact CHINO has paid its own attorneys' fees to prosecute the Appeal and its assertion that the defense of the Appeal by the AP and the cost to defend it is adverse to CHINO.
F. The Parties mutually desire to settle their dispute pertaining to the responsibility of CHINO to pay the AP legal expenses to defend the Appeal on the terms and conditions set forth in this Settlement and Release Agreement.
1 Now, therefore, for good and valuable consideration the adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
1. Settlement Payment. CHINO agrees to pay the First Amount of $31,380.51 and the Second Amount of $36,321.02 to the AP general account used for full payment of AP general expenses to date and as full payment of any and all obligations for the AP legal expenses incurred by the APto defend the Appeal.
2. No Admission By CHINO. The Parties also understand and hereby agree that this Agreement represents a compromise of a disputed claim and that entering into this Agreement shall not be deemed or construed as an admission of liability or responsibility by CHINO for the legal expenses incurred by AP to defend the Appeal or for future expenses, legal or otherwise, that the AP may incurfor AP matters particularly for AP matters adverse to CHINO.
3. No Waiver By AP. The Parties also understand and hereby agree that by entering into this Agreement compromising the current disputed claim, AP shall not be deemed to have waived any rights or arguments with respect to CHINO's liability or responsibility for future expenses, legal or otherwise, that the AP may incur for AP matters, whether or not adverse to CHINO. AP reserves all rights and arguments.
4. General Releases. The Parties fully and finally release each other from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions, and/or causes of action arising out of the Appropriative Pool June 26, 2024 Motion that they may have had against each other as of the date of this Settlement and Release Agreement.
5. California Civil Code Section 1542. Each of the Parties has read and has otherwise been informed of the meaning of Section 1542 of the California Civil Code, and has consulted with their respective counsel, to the extent that any was desired, and understands the provisions of Section 1542.
Each of the Parties hereby expressly waives the rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
The Parties, being aware of this section, hereby expressly waive and relinquish all rights and benefits they may have thereunder, as well as any other statutes or common law principles of similar effect.
6. Integrated Agreement. This Settlement and Release Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Settlement and Release Agreement, and expressly supersedes and replaces any and all other agreements, oral or written. 2 7. Execution. The Settlement and Release Agreement may be executed in one or more counterparts. The Parties further agree that facsimile or scanned signatures will constitute original signatures for the purposes of execution of this Settlement and Release Agreement.
8. Full Understanding. The Parties acknowledge that (i) they have read and understand the Settlement and Release Agreement and they are fully aware of its legal effect; (ii) that they have had sufficient time and opportunity to review or discuss it with their counsel; and (ill) they are entering into this Settlement and Release Agreement freely and voluntarily, and based on their own judgment and not on any representations or promises made by the other party, other than those contained in this Settlement and Release Agreement.
THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS SETTLEMENT AND
RELEASE AGREEMENT, HAVE CONSULTED COUNSEL CONCERNING IT, AND KNOW AND UNDERSTAND ITS CONTENTS AND MEANING.
This Settlement and Release Agreement is executed on the later of the dates entered below.
APPROPRIATIVE POOL
By: _ Chris Digga By: yohn y. Schatz
Chris Diggs John J. Schat
Its: Chair Person Its: General Counsel
Dated: 8/08/24
CITY OF CHINO
By: Linda Reich By:
Its: City Manager Jimmy L. Gutierrez
Jimmy L. Gutierrez, A Law Corporation
Its: Special Counsel
Dated:
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