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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. 11 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 5"N13 I 0 0 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