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United States of America v. 12.94 Acres of Land In the County of Solano; et al

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 25, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
12.94 ACRES OF LAND IN THE COUNTY OF SOLANO; ET AL.,
DEFENDANTS.

STIPULATION FOR FINAL JUDGMENT IN EMINENT DOMAIN; ORDER THEREON

Plaintiff the United States of America ("Plaintiff") and Defendants the Maher Trust, Ted Aksnes, and Solano Green Acres ("SGA"), collectively referred to as Defendants (collectively with plaintiff, "the parties"), submit the following stipulation to the Court for its approval and for entry of judgment:

1. This condemnation action concerns acquisition of 12.94 acres of land in the County of Solano. The subject property and the estate and interests taken by this action are both described in Schedule B of the Declaration of Taking filed October 12, 2007 (Court Docket ("CD") # 2). The United States filed a Complaint in Condemnation for the 12.94 acres and deposited estimated just compensation of $261,000 with the district court (CD #1). On December 11, 2007, the United States was granted immediate possession and title to the 12.94 acres (CD #15). Most Defendants disclaimed interest in the property. (CD #40, 48, 49, 50, 57, 58, 59, 85). The only remaining Defendants, the Maher Trust, Ted Aksnes and SGA answered, but did not assert any affirmative defenses or demand a jury. (CD #42, 63). On July 31, 2009, the parties exchanged expert disclosures in compliance with Court orders and Federal Rules. (CD #68-83). The United States disclosed engineer Kelly Birkes and appraiser Steve Roach, who determined just compensation was $295,000. (CD #68.2). On October 13, 2009, the United States moved for summary judgment (CD #86). On December 9, 2009, the District court granted the United States' motion and entered judgment for Defendants collectively for $295,000.00 (CD #104). The additional $34,000.00 was deposited with the Court on February 1, 2010. (See Docket and receipt # CAE 200023407). On January 25, 2010, Defendants filed a notice of appeal. (CD #107). This matter has been fully briefed in the Ninth Circuit and oral argument is scheduled for April 12, 2011.

2. The parties hereby agree to settle and compromise each and every claim of any kind, whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action under the terms and conditions set forth in this Stipulation.

3. The parties request that the Clerk of the Court issue a check for $295,000.00 made payable to "The Bill C. and Betty L. Maher Family Trust of 1988" and mailed to:

Dennis M. Viglione MONTAGUE & VIGLIONE 1500 River Park Drive, Suite 100 Sacramento, CA 95815 Defendants agree to accept the $295,000.00 as full, adequate and just compensation for the taking of the estate and interests condemned and shall be in full satisfaction of any and all claims of whatsoever nature against the United States of America by reason of the institution and prosecution of this action.

4. Defendants' undersigned attorney represents that he has explained, and Defendants warrant and represent that they intend, that this Stipulation shall release all existing and future claims arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action, including claims that are unknown and unforeseen, notwithstanding Section 1542 of the Civil Code of the State of California, which provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing [this] Release, which if known by him must have materially affected his settlement with the debtor.

5. The parties agree that they will each bear their own costs, fees, and expenses in the district court case and appeal.

6. Payment of the settlement amount will be from the monies already deposited into the court. Defendants' attorney agrees to distribute the settlement proceeds.

7. The parties and their undersigned attorneys agree to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement, including a notice of settlement with the Ninth Circuit.

8. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the person[s] on whose behalf he or she is signing to the terms of the Stipulation.

9. Each person signing this Stipulation warrants and represents that no promises, inducements, or other agreements not expressly contained herein have been made; that this Stipulation contains the entire agreement between the parties; and that the terms of this Stipulation are contractual and not mere recitals. This Stipulation may not be altered, amended, modified, or otherwise changed in any respect, except by a writing duly executed by the party to be charged. All prior oral understandings, agreements, and writings are superseded by this Stipulation and are of no force or effect.

10. Each person executing this Stipulation represents that he or she has read and understands its contents; that he or she executes this Stipulation voluntarily; that he or she has not been influenced by any person acting on behalf of any party.

11. Notwithstanding the entry of a judgment herein, the parties hereby stipulate that the Honorable Frank C. Damrell, Jr., District Judge, shall retain jurisdiction to enforce the terms of this compromise settlement.

DATED: March 24, 2011

DATED: March 24, 2011

DATED: March 23, 2011

DATED: March 23, 2011

DATED: March 24, 2011

Respectfully submitted, BENJAMIN B. WAGNER United States Attorney By: KELLI L. TAYLOR Assistant United States Attorney Attorneys for the United States of America MONTAGUE & VIGLIONE By: DENNIS M. VIGLIONE Attorneys for Defendants Bill C. Maher BILL C. MAHER, Individually and as Trustee of The Bill C. and Betty L. Maher Trust of 1988 Betty L. Maher BETTY L. MAHER, Individually and as Trustee of The Bill C. and Betty L. Maher Trust of 1988 Ted Aksnes TED AKSNES, Individually and on behalf of SOLANO GREEN ACRES, LLC

ORDER

IT IS SO ORDERED.

20110325

© 1992-2011 VersusLaw Inc.



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