3350, View preservation: Greenberg/, Miscellaneous, OtherSETTLEMENT AGREEMENT
MAR 01 2013
City of Rolling Hills
This Settlement Agreement (the "Agreement") confirms the agreement made
and entered into on March F , 2013 by and among Christine Greenberg
("Greenberg"), on the one hand, and the City of Rolling Hills (the "City") and Curtis
and Pamela Reis (the "Reises"), on the other hand.
This Agreement is entered into on the basis of the following facts:
A. The Reises brought a view complaint claiming that trees on the
property owned by Greenberg located at 32 Portuguese Bend Road
within the City (the "Greenberg Property") were blocking the view
from the Reises' property located at 1 Wagon Lane, Rolling Hills,
California (the "Reis Property").
B. Greenberg opposed the view complaint on grounds, among others, that
it improperly sought to have trees topped and removed from the
Greenberg Property in order to create a view from the Reis Property.
C. The Reises' view complaint ultimately resulted in the City adopting
Resolution No. 1127 on October 8, 2012 (the "Resolution"). A true and
correct copy of the Resolution is attached to this Agreement as Exhibit
A.
D. On November 6, 2012, Greenberg filed in the Los Angeles Superior
Court ("LASC") a Petition for Writ of Mandate which included multiple
causes of action and bore LASC Case No. DS140256 (the "Action"). In
the Action, among other things, Greenberg sought a Writ of Mandate
to set aside and vacate the Resolution.
E. The intent of the parties is that the Resolution is to be rescinded
and/or set aside and the terms and conditions stated in this Agreement
are to control relations between the owners of the Greenberg Property
and the Reis Property.
F. The parties intend by entering into this Agreement to remove the City
from any involvement in addressing tree and/or view issues as between
the Reises (and the Reis Property) and Greenberg (and the Greenberg
Property), except to the extent the City is authorized to enforce the
terms of this Agreement pursuant to paragraph 24 of this Agreement.
The parties desire to confirm the settlement of all disputes and outstanding
claims between them arising out of and/or related in any way to the Greenberg
Property and the Reis Property and intend by this Agreement to confirm the
settlement of all such disputes and to release one another from any and all claims
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with respect to this subject matter, or otherwise, which may have arisen, or relate
to any events which occurred, prior to the date of this Agreement.
THEREFORE, IN CONSIDERATION FOR THE PROMISES AND
OBLIGATIONS SET FORTH IN THIS AGREEMENT, EACH OF THE
UNDERSIGNED PARTIES AGREES AS FOLLOWS:
1. The Recitals referenced above are incorporated by this reference
as though set forth in full, and shall and do constitute an integral part of this
Agreement and a material portion of the consideration therefor.
2. The parties agree that the City Council shall conduct a public
hearing to determine whether the Resolution shall be rescinded within eighteen
(18) days of all parties' execution of this Agreement. In the event the City's City
Council does not issue a new and different resolution rescinding the Resolution in
its entirety, then this Agreement is null and void in its entirety and Greenberg
shall proceed forward with the Action.
3. Consistent with the terms and conditions of this Agreement,
Greenberg agrees to take the following actions on the trees identified in the
Resolution and on the diagram which accompanied the Resolution:
a. Tree Nos. 71, 72, 73, 90 through 101, and 108, remove,
including stump grinding to 4-6 inches below grade (the
"Tree Removal Work");
b. Tree Nos. 11, 13, 15, 18, 19, and 20, reduce crowns to a
height within the range of 35-40 feet from ground level,
clean out dead wood, cut back longer, heavier laterals and
shape trees as proportionately as possible. These trees
are to be clearly marked before any crown reduction or
other cutting at the height of 35 feet from ground level
and shall not be cut below that height.
c. Tree Nos. 82, 83, 84, 85, 86, 87, 88 and 89 shall be
thinned in an effort to create a view through the trees
with some trimming along the south side of Tree Nos. 88
and 89. All trimming and thinning of these trees will be
consistent with International Society of Arboriculture
("ISA") guidelines with special care and attention paid to
maintaining the health of the trees.
d. The tree work referenced in paragraphs 3. a., b. and c.
above shall be referred to as the "Initial Tree Work" and
shall be completed by April 8, 2013.
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e. No trees other than the numbered trees specifically
identified above shall be cut or in any way damaged in
connection with the Initial Tree Work.
f. To the extent that any trees not identified in the
Resolution grow into the view as shown in the
photographs taken pursuant to paragraph 4 below, then
such trees may be referenced in a request for
maintenance trimming as discussed in paragraph 7
below. However, any maintenance trimming on such
trees shall only involve trimming and thinning consistent
with ISA guidelines with special care and attention paid
to maintaining the health of the trees.
g•
Greenberg shall have no obligation to undertake any of
the Initial Tree Work unless and until the Reises have
paid to Greenberg the estimated cost of such work as
determined pursuant to paragraph 8 below. It is the
intention of the parties that the cost associated with the
Initial Tree Work (and any later tree maintenance work)
be borne by the Reises.
h. The Initial Tree Work shall be completed by April 8, 2013.
4. At the conclusion of the Initial Tree Work, the parties shall
mutually cause two photographs to be taken from the Designated View Area at the
Reis Property which show the extent of the Initial Tree Work, one taken in the
direction of Tree Nos. 11, 13, 15, 18, 19, and 20 (the "Wagon Lane Corner Trees")
and the other towards Tree Nos. 82, 83, 84, 85, 86, 87, 88 and 89 (the "Wagon Lane
Entrance Trees"). These photographs, which shall be taken without using any
telephoto technique(s) and in the presence of representatives of both Greenberg and
the Reises, shall show the maximum amount of any later maintenance trimming
pursuant to this Agreement.
5. Within thirty (30) days after the Initial Tree Work is completed,
the Reises shall pay to Greenberg $4,000 for the purpose of planting new trees
and/or for further stump removal in connection with trees to be removed pursuant
to this Agreement. Greenberg agrees that any trees planted pursuant to this
paragraph shall be located in the general location of the removed trees and shall be
of such species that are not expected to grow more than 20 feet in height. Following
completion of the work referenced in this paragraph, Greenberg shall provide copies
of receipts/invoices which total to at least $4,000 to the Reises.
6. With respect to the Wagon Lane Corner Trees and the Wagon
Lane Entrance Trees, in the event that any such trees die within one (1) year of any
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413
tree cutting called out for pursuant to this Agreement, the Reises shall cause to be
paid to Greenberg the amount necessary to cover tree removal and planting of a
replacement tree. Any replacement tree shall be of such species that are not
expected to grow more than 35 feet in height and shall be a 48 inch box tree.
7. The Reises shall have the right, subject to the provisions and
requirements of this Agreement, to request maintenance trimming on the Wagon
Lane Corner Trees and the Wagon Lane Entrance Trees no more than every two (2)
years) as provided for in this Agreement. The maintenance trimming on the Wagon
Lane Corner Trees and the Wagon Lane Entrance Trees (the "Maintenance
Trimming") shall -- after the first Maintenance Trimming which may occur during
the winter months after December 1, 2014 -- only occur after two years has passed
from the previous trimming under this Agreement and shall be subject to the
following additional requirements: (a) After December 1 on the year at issue, the
Reises must request in writing that Greenberg cause the Maintenance Trimming to
occur; (b) Greenberg shall obtain bids (and choose a bid) as set out in paragraph 8
below; and (c) the Reises shall pay to Greenberg a cash deposit in the amount of the
chosen bid. Within thirty (30) days after the required payment by the Reises to
Greenberg has been made, Greenberg shall cause the Maintenance Trimming to be
done. The Maintenance Trimming work shall only occur during winter months at a
time when the negative impacts on the trees being trimmed will be minimized.
8. The procedure for choosing a licensed and qualified tree cutting
contractor to perform the Initial Tree Work and any of the Maintenance Trimming
in the future shall be the following: First, Greenberg shall obtain at least three (3)
bids from licensed and qualified tree cutting contractors (as defined in paragraph
15. B. 2. of the Resolution) to perform the necessary services. Second, Greenberg
shall choose the lowest or middle bid. Third, upon notification of the chosen bid, the
Reises shall pay to Greenberg a cash deposit in the amount of the chosen bid.
Fourth, within thirty (30) days after the required payment by the Reises to
Greenberg has been made, Greenberg shall cause the tree work then at issue to be
done. Notwithstanding anything stated in this Agreement, the parties agree that
the cost of the Initial Tree Work will be capped at $11,500.
9. The parties agree that in the event either party believes the
cutting to be done (or cutting that has been done) is not in compliance with the
terms of this Agreement, that party may make a written statement raising the
concern(s). Thereafter, the parties shall promptly and mutually agree upon an
arborist who will determine whether (and to what extent) there has been
noncompliance with this Agreement and advise the tree cutting contractor doing the
work accordingly. In the event the parties cannot agree on an arborist, then
Greenberg shall provide the Reises with a list of three arborists from which to
choose and the Reises shall choose one of those three as the arborist appointed
pursuant to this paragraph. The chosen arborist shall make his or her
determination(s) consistent with,ISA guidelines with special attention paid to
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maintaining the health of the trees. Arborists employed by (or who have been
employed by) Travers Tree Service and/or Finley's Tree and Landcare, Inc. shall not
be eligible for this role. The cost associated with the work of the referenced
arborist(s) shall be split equally (50 - 50) between the Reises and Greenberg.
10. In the event the procedure referenced in paragraph 9 above does
not (or cannot) resolve the issue(s) in dispute, the parties agree that before bringing
any legal action they shall first participate in good faith in a mediation procedure in
an effort to resolve any matter(s) at issue. In this regard, following notice from the
complaining party, the parties shall mutually agree upon a mediator and
participate in a mediation in an effort to resolve the outstanding dispute(s) between
the parties. The cost of any mediation shall be split equally (50 - 50) between the
Reises and Greenberg.
11. Other than the Initial Tree Work on the trees identified in
paragraphs 3. a., b. and c. above (and possible work pursuant to paragraph 3. f.
above) and the Maintenance Trimming, there shall be no actions taken against
trees on the Greenberg Property on account of claims that there is any blockage of
any view(s) from the Reis Property. In this regard, the Reises expressly warrant,
represent and agree (on behalf of themselves and their successors and assigns) that
they shall not bring any further view complaint(s) against Greenberg and/or the
Greenberg Property (including, without limitation, view complaints before the City
and/or the Rolling Hills Community Association).
12. Within twenty (20) days after the City issues a new resolution
rescinding the Resolution, Greenberg shall cause her attorney to execute and cause
to be filed a Stipulation for Dismissal and, if necessary, a Request for Dismissal,
which will result in dismissal, with prejudice, of the Action. The Reises agree to
execute the Stipulation for Dismissal (and/or other document(s)) which shall
expressly represent that the Reises subject themselves to the jurisdiction of the
LASC in connection with the Action and for all purposes related thereto.
13. Unless otherwise stated in this Agreement, each party will bear
his/her/its own attorneys' fees and costs.
14. None of the parties to this Agreement will bring any litigation,
lawsuit, demand for arbitration, or any other claim of any type whatsoever against
any of the other parties to this Agreement for any disputes between them, present
or past. Each party agrees and represents that he/she/it has not filed any claim,
cause of action or litigation prior to the date of this Agreement other than the
Action.
15. It is understood by all parties to this Agreement that it is being
entered into in order to resolve all outstanding disputes between them and in
consideration for the promises and other valuable consideration set forth in this
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Agreement. All parties acknowledge that this Agreement effects the settlement of
claims which are denied and contested by all other parties and that nothing
contained herein shall be construed as an admission of liability or responsibility by
or on behalf of any such party, all of whom expressly deny liability to any of the
other parties hereto and/or responsibility for the matters at issue in this
Agreement.
16. In further consideration of the promises given in this Agreement
(and effective between all parties upon their execution of this Agreement),
Greenberg, on the one hand, and the City and the Reises, on the one hand, hereby
release, acquit and discharge each other from any and all complaints, claims,
demands, debts, damages, liabilities, actions, causes of action, suits, claims for
arbitration, arbitration demands, grievances, sums of money, accounts, covenants,
agreements, contracts, benefits and promises in law and equity which said parties
now have, or have ever had, or may have or obtain against the other(s), whether
subject to dispute and whether known or unknown, suspected or unsuspected, of
every character whatsoever, without limitation. It is understood that each party
makes such release and discharge of the other(s) on behalf of any and all persons,
entities, associations, agents, employees, servants, officers, directors, corporations,
subsidiaries, affiliates, successors and assigns, attorneys, representatives, and
partnerships connected with said party. It is further understood that the releases
granted in this Agreement include, but are not limited to, any claims, violations and
breaches of any agreements and any violations of law whatsoever and shall extend
to the parties and all heirs, executors, administrators, persons, entities,
associations, agents, employees, servants, officers, directors, corporations,
subsidiaries, affiliates, successors and assigns, attorneys, representatives, and
partnerships connected with or related to each of the released parties (the "Released
Persons").
17. The parties to this Agreement fully understand that if any fact
regarding the subject matter underlying this Agreement is subsequently found to be
other than, or different from, any fact now believed to be true, said parties expressly
accept and assume the risk of such possible difference(s) in fact and agree that this
Agreement shall be, and remain, effective, notwithstanding such difference(s) in
fact(s). All of the parties to this Agreement expressly waive any right or benefit
available under the provisions of Section 1542 of the Civil Code of the State of
California, which provides that:
"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."
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18. The parties to this Agreement warrant and represent as follows:
the individuals signing this Agreement are duly authorized to execute and deliver
this Agreement; they have the sole right to execute this Agreement and sole right to
receive the consideration mentioned in this Agreement; they have not sold,
assigned, transferred, conveyed or otherwise disposed of any claim, right, interest or
demand described in this Agreement; and, they know of no other person or entity
with any claim, right, interest or demand whatsoever as to any cause of action,
claim, liability, damage or loss of any nature except as set forth in this Agreement.
19. The parties to this Agreement, and their attorneys, acknowledge
that they have relied upon no warranties, representations or promises made by the
other party, or his/her/its attorney, except as expressly set forth in this Agreement,
in agreeing to execute this Agreement.
20. The parties represent that they have been fully advised by their
legal counsel (and/or have had a full and complete opportunity to be so advised)
regarding their rights and obligations under this Agreement. Each such party has
read this Agreement and had it fully explained to it by their respective attorneys
(and/or have had a full and complete opportunity to receive such explanation). Each
party fully understands all the terms and language used in this Agreement and
enters into it knowingly and voluntarily in consideration for the promises,
obligations and other rights set forth in this Agreement. The parties further agree
that any statute or rule of construction that ambiguities are to be construed against
the drafting party shall not be employed in the interpretation of this Agreement or
any exhibit to this Agreement.
21. All notices or correspondence pertaining to this Agreement shall
be sent by fax or personal delivery (and by e-mail if available) as follows:
To Greenberg:
With a Copy to:
To the Reises:
Christine Greenberg
32 Portuguese Bend Road
Rolling Hills, CA 90274
Fax: (310) 541-6271
Harold J. Light, Esq.
Law Offices of Harold J. Light
11355 W. Olympic Blvd.
Los Angeles, CA 90064
Fax: (310) 473-0077
E-mail: hallight@hillaw.com
Curtis Reis and Pamela Reis
1 Wagon Lane
Rolling Hills, California 90274
Fax: (310) 377-6760
E-Mails: pamelareis@alumni.upenn.edu &
curtisreis@gmail.com
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To the City:
With a Copy to:
Anton Dahlerbruch, City Manager
No. 2 Portuguese Bend Road
Rolling Hills, CA 90274
Fax: (310) 377-7288
E-mail: Adahlerbruch@citvofrh.net
John C. Cotti, Esq.
Jenkins & Hogin, LLP
1230 Rosecrans Ave., Suite 110
Manhattan Beach, CA 90266
Fax: (310) 643-8441
22. This Agreement shall be binding upon and shall inure to the
benefit of the parties to this Agreement and their respective heirs, successors,
representatives and assigns. Therefore, all covenants, releases and agreements in
favor of the parties to this Agreement are made for the express benefit of each such
person, all of whom shall have the right to enforce such provisions when otherwise
enforceable by law. Consistent with this provision and the intention of the parties
to this Agreement, the use of the terms "Reises" and "Greenberg" in this Agreement
shall include any heirs, successors, representatives and assigns (which shall
include, without limitation, any persons who are transferred ownership of the Reis
Property and the Greenberg Property).
23. The parties to this Agreement shall provide a copy of this
Agreement and a copy of the photographs showing the Wagon Lane Corner Trees
and the Wagon Lane Entrance Trees identified in paragraph 4 above to any person
to whom they cause the Properties to be transferred or sold.
24. Within ten (10) days of the .City Council issuing a new and
different resolution rescinding the Resolution, Greenberg shall cause to be recorded
against the titles of the Reises and Greenberg to, respectively, the Reis Property
and the Greenberg Property, a Memorandum of this Agreement (the "Memorandum
of Agreement"). The Memorandum of Agreement shall state a summary of the
general terms of the Agreement and confirm the fact that the Agreement shall run
with the land, thereby giving notice of this Agreement to all future owners of the
Properties. The Reises and Greenberg agree to sign the Memorandum of
Agreement allowing sufficient time for Greenberg to cause the Memorandum of
Agreement to be recorded as provided in this paragraph.
25. The parties to this Agreement shall make, execute and deliver
such other instruments or documents, and do or cause to be done such further
additional acts, as may be reasonably required to effectuate the purposes of this
Agreement and to implement the terms of this Agreement.
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0310412013 11:4G WW1
FAX) P,0101010
284 The parties agree that any dismissal of the Action shall be
pursuant to Code of Civil Procedure $664.6 ('Section 664.6') and the Court shall
retain jurisdiction pursuant to faction 864.6 to enforce the terms of this Agreement
upon motion of any party.
27. This Agreement sets forth the entire understanding of the
parties relating to the subject matter of this Agreement. No modification,
amendment, waiver. termination or discharge of this Agreement or any of the terms
or provisions of this Agreement shall be binding upon either party to this
Agreement unless confirmed by a written instrument signed by all parties.
28. This Agreement was drafted, executed and delivered within the
State of California and the rights and liabilities of the parties to this Agreement
shall in all respects be interpreted, enforced and governed by and under the laws of
the State of California.
29. This Agreement may be executed in counterparts and each
party's signature on at least one such counterpart shall make this Agreement
effective for the signing party. Also, a fax or scanned signature shall be treated the
same as as original signature for purposes of enforcing this Agreement.
30. If any portion of this Agreement shall be held contrary to public
policy or unenforceable, such findings shall not invalidate any other part of this
Agreement.
8L This nine -page document contains the full agreement between
the parties and can be modified or altered only by the written agreement of all
affected parties.
Dated:2013
Dated:
,201$
Dated: , 2018
:ram. D
Christine Greeioefg
Curtis Reis
Pamela Reis
City of Rolling hills
Dated: _ , 2013 •
Page 9 of 9
,Its
26. The parties agree that any dismissal of the Action shall be
pursuant to Code of Civil Procedure §664.6 ("Section 664.6") and the Court shall
retain jurisdiction pursuant to Section 664.6 to enforce the terms of this Agreement
upon motion of any party.
27. This Agreement sets forth the entire understanding of the
parties relating to the subject matter of this Agreement. No modification,
amendment, waiver, termination or discharge of this Agreement or any of the terms
or provisions of this Agreement shall be binding upon either party to this
Agreement unless confirmed by a written instrument signed by all parties.
28. This Agreement was drafted, executed and delivered within the
State of California and the rights and liabilities of the parties to this Agreement
shall in all respects be interpreted, enforced and governed by and under the laws of
the State of California.
29. This Agreement may be executed in counterparts and each
party's signature on at least one such counterpart shall make this Agreement
effective for the signing party. Also, a fax or scanned signature shall be treated the
same as an original signature for purposes of enforcing this Agreement.
30. If any portion of this Agreement shall be held contrary to public
policy or unenforceable, such findings shall not invalidate any other part of this
Agreement.
31. This nine -page document contains the full agreement between
the parties and can be modified or altered only by the written agreement of all
affected parties.
Dated: , 2013
Dated: lc,ACi1 1. , 2013
Dated: , i `o► \ . 2013 i
Pamela Reis
City of Rolling Hills
Dated: . 2013
Christine Greenberg
Page 9 of 9
, Its
Joi?
26. The parties agree that any dismissal of the Action shall be
pursuant to Code of Civil Procedure §664.6 ("Section 664.6") and the Court shall
retain jurisdiction pursuant to Section 664.6 to enforce the terms of this Agreement
upon motion of any party.
27. This Agreement sets forth the entire understanding of the
parties relating to the subject matter of this Agreement. No modification,
amendment, waiver, termination or discharge of this Agreement or any of the terms
or provisions of this Agreement shall be binding upon either party to this
Agreement unless confirmed by a written instrument signed by all parties.
28. This Agreement was drafted, executed and delivered within the
State of California and the rights and liabilities of the parties to this Agreement
shall in all respects be interpreted, enforced and governed by and under the laws of
the State of California.
29. This Agreement may be executed in counterparts and each
party's signature on at least one such counterpart shall make this Agreement
effective for the signing party. Also, a fax or scanned signature shall be treated the
same as an original signature for purposes of enforcing this Agreement.
30. If any portion of this Agreement shall be held contrary to public
policy or unenforceable, such findings shall not invalidate any other part of this
Agreement.
31. This nine -page document contains the full agreement between
the parties and can be modified or altered only by the written agreement of all
affected parties.
Dated: , 2013
Dated: . 2013
Dated: . 2013
Dated: 3f d / , 2013
Christine Greenberg
Curtis Reis
Pamela Reis
City of Rolling Hills
rank E. Hill , Its
Mayor Pro Tern
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