1 SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE
OF ALL CLAIMS AND ACTIONS
This Settlement Agreement and Full and Final Release of All Claims and Actions (“Agreement”) is between the City of Santa Rosa (“City”) and Meadowgreen No. 2 Homeowners Association (“Meadowgreen”) (individually, a “Party” or collectively, the “Parties”). The Parties enter into this Agreement for the purpose of resolving potential litigation without further expense or dispute.
RECITALS
A. On October 10, 1972, the City Council approved the “Meadowgreen No. 2” condominium development in Oakmont Village and accepted all offers of dedication for public use contained within the approved subdivision map (attached hereto as Exhibit A and incorporated herein by this reference). Pages 2 and 3 of Exhibit A depict a portion of common area within the subdivision identified as ‘Parcel “A” Drainage Easement’ (“Parcel A”).
B. Pursuant to Section 2 of Article VII of Oakmont Village Declaration No. 15 of Protective Restrictions, as recorded in Book 2707, Pages 650 through 706 in the Office of the Recorder of the County of Sonoma, State of California, Meadowgreen is responsible for maintaining the common areas within the subdivision.
C. During the winters of 2017-18 and 2018-19, significant rainfall led to high flows that eroded portions of the creek bank on Parcel A such that Meadowgreen hired LACO Associates to design a creek bank stabilization project, the scope of which was expanded in 2022 (“Project”).
D. Meadowgreen alleges that the City is responsible for maintaining the creek and banks on Parcel A and asserts that its failure to do so makes the City liable to pay for the Project cost whereas the City disputes that allegation (the “Dispute”)
E. City staff inspected Parcel A and found a fallen tree with root ball lying in the creek downstream of the erosion area identified by Meadowgreen.
F. City contends the scope of its duty regarding maintenance of the drainage easement on Parcel A is limited to ensuring that the flow in the creek is not substantially impaired, but that City is not obligated to maintain the creek banks or the common area more generally.
City further contends that Meadowgreen failed to maintain healthy vegetation in the common area, including the creek banks within Parcel A, which led to erosion and fallen trees on Parcel A.
G. In light of the particular facts, recited above, the Parties now mutually seek to resolve the Dispute without the need for further legal proceedings, and believe this Agreement is fair, reasonable, and in the best interests of the Parties.
2 AGREEMENT
In consideration of the foregoing recitals, the mutual covenants and promises set forth in this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree to all of the following conditions and terms:
1. City hereby agrees to pay Meadowgreen the total sum of Two Hundred Sixty-Three Thousand Dollars ($263,000), payable as set forth in Paragraph 4 below.
2. This Agreement is contingent upon the Santa Rosa City Council adopting a resolution appropriating sufficient funds for the City to pay the settlement amount set forth in Paragraph 1 above. The matter shall be placed on the agenda for a City Council meeting to be held no later than 60 days following the date the last Party executes this Agreement (“Effective Date”). If within 90 days of the Effective Date, the City Council fails to appropriate the funds necessary to pay the City’s portion of the settlement amount of this Agreement, this Agreement shall be null and void and no Party shall have any further obligation hereunder.
3. City hereby agrees that it shall maintain the drainage easement on Parcel A by ensuring the flow in the section of Oakmont Creek running through Parcel A is not substantially impaired in accordance with the Maintenance Agreement attached hereto as Exhibit B and incorporated herein by this reference (“Maintenance Agreement”).
4. Meadowgreen hereby agrees that, except for the City’s maintenance responsibilities as described in the Maintenance Agreement, City is not responsible for maintaining Parcel A. Meadowgreen further agrees that it shall otherwise maintain Parcel A, including but not limited to the creek banks, the flat areas above the creek banks, and any vegetation located on Parcel A including but not limited to trees and bushes in accordance with the Maintenance Agreement.
As a prerequisite to Meadowgreen receiving payment of the amount specified in Paragraph 1, Meadowgreen hereby agrees to execute and deliver to City the Maintenance Agreement within fourteen days (14) days following Meadowgreen’s receipt of City Council’s resolution appropriating funds as set forth in Paragraph 2. City shall mail to Meadowgreen #2 Owners Association, 6572 Oakmont Drive, Suite A, Santa Rosa, CA 95409, the amount specified in Paragraph 1 within forty-five (45) days of City’s receipt of the Maintenance Agreement executed by Meadowgreen. Should Meadowgreen deliver the executed Maintenance Agreement to the City before a resolution appropriating funds as set forth in Paragraph 2 has been adopted and fully executed, the City’s time to mail the settlement funds shall commence following final execution of the resolution.
5. Meadowgreen and City understand that liability for the matters encompassed in Meadowgreen’s October 30, 2020 email is disputed by the Parties and that this
3 Agreement is a compromise and shall not be construed as any admission of fact, claim or allegation of liability or responsibility on the part of the Parties, or any of them.
6. Except for the rights and obligations expressly created by this Agreement, expressly including those set forth in the Maintenance Agreement, each Party, and all of its predecessors, successors, and assigns, fully, finally and forever releases each other Party, and all of its predecessors, successors, and assigns, from any and all known or unknown, direct or indirect, actual or potential, suspected or unsuspected claims, demands, causes of action, damages, claims for attorneys’ fees, interest, expenses, costs, contracts, orders, execution, and liabilities for claims relating to or arising out of the subject matter of the Dispute.
Each Party is aware that it may have claims against the other Party in connection with the subject matter hereof, of which such Party may have no present knowledge or suspicion.
Having taken into account such a possibility in entering into this Agreement, and subject to the obligations and limitations set forth in this Agreement, the Parties agree that any releases set forth in this Agreement shall be full and final releases applying to all unknown and unsuspected claims, as of the Effective Date of this Agreement, that each may have against the released Party in connection with the subject matter thereof. Each Party expressly waives any right or claim of right to assert hereafter that any such claim has, through oversight or error, been omitted from the terms of this Agreement. Each Party acknowledges that it has had the opportunity to receive independent legal advice from attorneys with respect to the advisability of executing this Agreement and expressly waives any rights or benefits that it otherwise might have under California Civil Code Section 1542 or any other similar state or federal statute, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
7. As material consideration for this Agreement and the payment referred to herein, it is clearly understood and expressly agreed by the undersigned, that neither Party is considered to be a prevailing party for purposes of seeking or awarding costs or attorney’s fees under any state or federal statute, court decision, or provision of law. It is also clearly understood and expressly agreed that each Party is to bear their own attorney's fees and costs.
8. This release is binding upon, and inure to the benefit of, the Parties hereto and their respective assigns, heirs, executors and administrators.
9. The Parties acknowledge and represent that, prior to signing of this document, they have consulted with their respective counsel concerning the advisability of entering into this Agreement, and the meaning and effect of the terms and conditions set forth herein.
4 10. In view of the fact that this Agreement is the product of joint drafting and negotiation among the parties hereto, it is agreed and understood that the general rule that ambiguities are to be construed against the drafter shall not apply to this Agreement. In the event that any language of this Agreement is found to be ambiguous, each Party shall have an opportunity to present evidence as to the actual intent of the parties with respect to any such ambiguous language.
11. If any provision of this Agreement is deemed to be illegal, invalid, or unenforceable, the legality, validity and enforceability of the remaining provisions, shall not be affected.
12. Each Party agrees to do any and all acts or things reasonably necessary in connection with the performance of his, her, or its obligations under this Agreement without undue delay or expense.
13. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument.
14. Each Party hereby represents that its signatory to this Agreement has full authority to enter into and legally bind each Party to this Agreement.
IN WITNESS WHEREOF, ________________________________, have executed this Settlement Agreement and Full and Final Release of All Claims and Actions, this ____day of ____________, 2024.
CITY OF SANTA ROSA
By:_________________________ DATED:__________________ Maraskeshia Smith
City Manager
APPROVED AS TO FORM:
By:_________________________
Teresa Stricker
City Attorney
MEADOWGREEN NO. 2 HOMEOWNERS ASSOCIATION
By:_________________________ DATED:__________________ Wendy Schwartz
President,
Meadowgreen No. 2 Homeowners Association
Wendy Schwartz (May 16, 2024 00:22 PDT)
May 16, 2024
Maraskeshia Smith (May 19, 2024 20:59 PDT)
May 19, 2024
the Parties
19th
May
EXHIBIT A
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
C
ity of Santa Rosa
Transportation & Public Works
Attn: Director
69 Stony Circle
Santa Rosa CA 95401
(THIS SPACE FOR RECORDER’S USE ONLY)
THIS MAINTENANCE AGREEMENT IS RECORDED AT THE REQUEST OF THE CITY OF SANTA ROSA,
A CALIFORNIA MUNICIPAL CORPORATION, AND IS EXEMPT FROM RECORDING FEE(S) PURSUANT TO GOVERNMENT CODE § 6103 AND § 27383.
EXHIBIT B
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
Th
is Agreement for Maintenance of Drainage Easement (“Maintenance Agreement”) is made and entered into by and between the City of Santa Rosa (“City”) and Meadowgreen No. 2 Homeowners Association (“ Meadowgreen”) (individually, a “Party” or collectively, the “Parties”).
R
ECITALS
A. On October 10, 1972, the City Council approved the “Meadowgreen No. 2” condominium development in Oakmont Village and accepted all offers of dedication for public use contained within the approved subdivision map (attached hereto as Exhibit A and incorporated herein by this reference). Pages 2 and 3 of Exhibit A depict a portion of common area within the subdivision identified as ‘Parcel “A” Drainage Easement’ (“Parcel A”).
B. C
ity has a responsibility to maintain the drainage easement on Parcel A by ensuring flow in the section of Oakmont Creek running through Parcel A is not substantially impaired.
C. P
ursuant to Section 2 of Article VII of Oakmont Village Declaration No. 15 of Protective Restrictions (“Declaration”), which Declaration is recorded in Book 2707, Pages 650 through 706 in the Office of the Recorder of the County of Sonoma, State of California, Meadowgreen is responsible for maintaining the common areas within the subdivision, which includes Parcel A.
D. T
he Parties wish to enter into this Maintenance Agreement to clarify their respective maintenance responsibilities with respect to Parcel A.
AGR
EEMENT
N
OW, THEREFORE, in consideration of the foregoing recitals, City and Meadowgreen hereby covenant, agree and declare as follows:
1. C
ity shall annually inspect the portion of Oakmont Creek that runs through Parcel A and remove obstructions that the City reasonably determines are blocking or substantially impeding the flow of water in this section of Oakmont Creek including but not limited to fallen trees, stumps and logs. City shall also respond within a reasonable time under the circumstances to any reports of observed blockages in this section of creek by inspecting the area and removing obstructions described in the preceding sentence. City shall not be responsible for maintaining any other portions of Parcel A, including but not limited to the creek banks and the areas above the creek banks.
2. C
ity shall keep and maintain, for at least five years, records of its inspections and maintenance of the drainage easement on Parcel A.
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
3. Except as set forth in Section 1, Meadowgreen shall be solely responsible for the maintenance of, and shall maintain, Parcel A, including but not limited to maintaining healthy vegetation or other forms of creek bank stabilization on the creek banks and the areas above the creek banks.
4. Meadowgreen shall keep and maintain, for at least five years, records of its maintenance of Parcel A.
5. Meadowgreen hereby grants to City, and its officers, employees, agents, contractors or sub-contractors, for so long as this Agreement remains in effect, the right to enter upon Parcel A and properties owned by Meadowgreen and adjacent to Parcel A as necessary to access Parcel A or carry out the City’s responsibilities under this Agreement, as reasonably determined by the City, at all times to inspect, assess, observe the status of, and maintain Parcel A in accordance with this Maintenance Agreement.
6. City shall indemnify, defend and hold harmless Meado wgreen and its officers, directors, employees, and agents, from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, interest, defense costs, and expert witness fees), to the extent caused by the inspection or maintenance of, or failure to inspect or maintain, the drainage easement on Parcel A by City, its officers, employees, agents, contractors or sub- contractors in accordance with Section 1 of this Agreement.
7. Meadowgreen shall indemnify, defend and hold harmless the City and its employees, officials, and agents, from and against any liability, (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, interest, defense costs, and expert witness fees), to the extent caused by maintenance of, or failure to maintain Parcel A including but not limited to the creek banks within Parcel A or the portions of Parcel A above the creek b anks by Meadowgreen, its officers, employees, agents, contractors or sub-contractors in accordance with Section 3 of this Agreement.
8. If any provisions of this Maintenance Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9. This Maintenance Agreement shall be governed according to the laws of the State of California. The Parties hereto agree that the forum for the adjudication of any dispute related to this Maintenance Agreement shall be brought exclusively and solely in Sonoma County, California.
10. This Maintenance Agreement contains the entire agreement between the P arties concerning maintenance of Parcel A.
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
11. No waiver or breach of any terms or provision of this Maintenance Agreement shall be deemed a waiver of any other term or provision, or be deemed a continuing waiver, and no waiver shall be valid unless in writing and executed by the waiving Party.
12. This Maintenance Agreement shall be recorded by City, and shall : a) constitute a “covenant running with the land;” and b) be binding upon, and inure to the benefit of, the Parties hereto and their respective successors, heirs, administrators, and assigns in perpetuity.
13. Any notice, submittal or communication required or permitted to be served on Meadowgreen or City may be served by personal delivery to the person or the office of the person identified below. Service may also be made by mail, by placing f irst-class postage, and addressed as indicated below, and depositing in the United States mail to:
City Representative:
Transportation & Public Works
Attn: Director
69 Stony Circle
Santa Rosa CA 95401
Meadowgreen Representative:
Wendy Schwartz, President
Meadowgreen No. 2 Homeowners
Association
6572 Oakmont Drive, Suite A
Santa Rosa, CA 95409
/ / /
/ / /
/ / /
AGREEMENT FOR MAINTENANCE OF DRAINAGE EASEMENT
14. Each Party hereby represents that its signatory below has full authority to enter into and legally bind each Party to this Maintenance Agreement.
Executed as of the day and year stated below.
CITY OF SANTA ROSA
By:_________________________ DATED:__________________ Maraskeshia Smith
City Manager
APPROVED AS TO FORM:
By:_________________________
Teresa Stricker
City Attorney
MEADOWGREEN NO. 2 HOMEOWNERS ASSOCIATION
By:_________________________ DATED:__________________ Wendy Schwartz
President,
Meadowgreen No. 2 Homeowners Association
ATTACHMENTS:
Exhibit A – Meadowgreen No. 2 Subdivision Map
Notary Acknowledgment
EXHIBIT A
ACKNOWLEDGMENT
State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________ (Seal)
ACKNOWLEDGMENT
State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Meadowgreen Settlement Agreement_Final
Final Audit Report 2024-05-20
Created: 2024-05-10
By: Kathryn Marko ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAC23AxJ4hTf-o7lZwWNy-rI31ZQA3hwk9 "Meadowgreen Settlement Agreement_Final" History
Document created by Kathryn Marko ([email protected])
2024-05-10 - 10:57:35 PM GMT
Document emailed to [email protected] for delegation
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Email viewed by [email protected]
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Document signing delegated to [email protected] by [email protected] 2024-05-11 - 7:01:35 AM GMT
Document emailed to [email protected] for signature
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Email viewed by [email protected]
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Email viewed by [email protected]
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Signer [email protected] entered name at signing as Wendy Schwartz 2024-05-16 - 7:22:06 AM GMT
Document e-signed by Wendy Schwartz ([email protected])
Signature Date: 2024-05-16 - 7:22:09 AM GMT - Time Source: server Document emailed to Teresa Stricker ([email protected]) for signature 2024-05-16 - 7:22:11 AM GMT
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