08-0115_BROSE, DANNY H._Settlement AgreementSETTLEMENT AGREEMENT
The City of San Juan Capistrano, a municipal corporation ("City"), and Danny H.
Bross, an individual ("Brose"), hereby agree as follows:
RECITALS
1. Brose is the owner of a parcel property located at 30738 Paseo
Elegancia, located in the City of San Juan Capistrano ("Property"). The Property is
burdened with a hiking and equestrian trail easement ("Easement") in favor of the City.
The Width of the Easement traversing the Property varies from approximately 16 feet to
approximately 20 feet.
2. In or about 2003, Brose installed grass turf onto the surface of a
portion of the Easement. Brose also installed approximately nine square granite
stepping stones and an approximately ten foot wide granite cobblestone cart path
across the Easement. Brose removed a portion of the post and rail fencing along the
borders of the Easement and installed landscaping along the inside edges of the
Easement.
3. On September 1, 2006, the City filed a complaint for abatement of a
public nuisance and interference with property rights against Brose. That lawsuit,
bearing case number 06CC09622, sought an order requiring that Brose remove the
grass turf, granite stepping stones and cobblestone cart path from inside the boundaries
of the Easement. The lawsuit further requested that Brose replace the post and rail
fence and remove the landscaping placed immediately inside the boundaries of the
Easement.
4. The parties disagree as to whether Brose's foregoing modification
of the Easement was proper and/or approved by the City.
5. Within the past nine months, Brose has removed the grass turf,
granite stepping stones and cobblestone cart path from inside the boundaries of the
Easement. Brose has also removed the bushes lining the north side of the paving
stones adjacent to his golf cart garage.
6. The parties disagree as to the location of the Easement at the
northwestern corner of Property: Brose contends that it runs no further than 20 feet
from the western border of the Property while the City believes that the Easement may
have been relocated to a more easterly location.
7. The parties to this Agreement desire to compromise and settle the
issues raised in the complaint without incurring additional costs or expenses.
AGREEMENT
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Within five (5) business days after
Bross, the City agrees to dismiss the complaint on file in
entirety without prejudice.
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execution of this Agreement by
case number 06CCO9622 in its
2. By execution of this Agreement, the City acknowledges that Bross
has removed all of the turf, stepping stones and cart path from boundaries of the
Easement. The City further acknowledges that Bross shall be allowed to place signs on
the Property designating the small area in front of the golf cart garage that is currently
covered by paving stones as the Broses' private property pursuant to Civil Code section
1008.
3. By entering into this Agreement, the City does not waive its rights to
access the Easement for maintenance purposes, nor shall anything in this Agreement
be deemed a waiver of the City's right to or abandonment of any portion of the
dedicated trail easement. Nothing in this Agreement shall be deemed a waiver of
Bross's rights to challenge any assertion that a prescriptive easement over that area
may now, or in the future, exist.
4. Bross shall not be required to remove the Easement fencing or
existing landscaping along the inside border of the Easement provided:
a. That the landscaping on either side of the Easement does not
extend more than three feet into the Easement area; and
That any irrigation system be designed to ensure that irrigation
water stays within the landscape area and does not fall or flow into
non -landscaped portions of the Easement.
5. Each party shall bear its own costs and attorneys fees in
connection with this matter.
6. Nothing in this Agreement shall be construed to limit the right or
authority of the City to commence future legal proceedings should any improvements
other than the items identified in Paragraphs 2-4 be installed within the boundaries of
the Easement without the written consent of the City. Photos depicting the current state
of the Easement are attached hereto as Exhibit "A."
7. This Agreement shall bind and inure to the benefit of all
successors, assigns and/or heirs of the parties of this Agreement.
8. This agreement shall not be altered, amended or modified, except
by a written amendment executed by the parties of this Agreement.
9. This agreement shall be construed and governed by laws of the
State of California.
10. This Agreement states the entire agreement between the parties
hereto and supersedes any prior agreements, negotiations or understandings by or
between the parties. Each of the parties to this Agreement acknowledges and agrees
that no other party to the Agreement, nor any agent or attorney thereof, has made any
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promise, representation or warranty, expressed or implied, not set forth in this
Agreement. Each party to this Agreement acknowledges that such party has not
executed this Agreement in reliance on any promise, representation, conduct or
warranty of any other party to this Agreement not set forth in this Agreement.
11. Each person executing this Agreement represents and
acknowledges that it has the authority to legally bind the party for whom it signs.
Executed this i ri day of
California. /
Fel1mm
APPROVED AS TO FORM
LAW OFFICES OF COREY E. TAYLOR
COR Y E. TAYLOR
ttorneys for Danny H. Brose
2008, in San Juan Capistrano,
(Signatures continued op the next page)
jh
Executed this 15 day of January, 2008 in San Juan Capistrano, California.
CITY OF SAN JUAN CAPISTRANO
9ll14 :F 0""11'-
BY: DAVID ADAMS
City Manager,
City of San Juan Capistrano
APPROVED AS TO FORM
WOODRUFF, SPRADLIN & SMART
Assistant City Attorney,
City of San Juan Capistrano