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County of Merced v. United States of America

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 18, 2013

COUNTY OF MERCED, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

STIPULATION QUIETING TITLE; ORDER COURT LANAGUAGE ADDED TO ORDER

It is hereby stipulated by and between defendant United States, acting on behalf of its agency the United States Department of Agriculture, ("United States") and plaintiff County of Merced ("County"), by and through their undersigned attorneys, as follows:

WHEREAS on July 6, 2012, the County filed its First Amended Complaint to Quiet Title pursuant to 28 U.S.C. § 2410. The amended complaint sought a judgment that the United States has no interest in property which had been leased by County to Castle Challenger Learning Center Foundation ("Challenger") claimed by United States pursuant to a Real Estate Deed of Trust for California with Assignment of Rents, a copy of which is attached hereto as Exhibit A. The United States filed an answer opposing such relief and asserting a leasehold mortgage. After the filing of the amended complaint, Challenger ceased operating and filed chapter 7 bankruptcy. 03/19/13 Page 2 of 5

WHEREAS, the parties have agreed 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-referenced Action under the terms and conditions set forth in this Stipulation. Accordingly, in reliance on the representations contained herein and in light of the mutual promises, covenants, obligations, and consideration contained herein, and intending to be legally bound hereby, the parties agree to settle this matter as set forth below.

IT IS HEREBY AGREED THAT:

1. The United States agrees to waive any interest it may have in real or personal property interest in the property formerly known as Castle Air Force Base based on the said Real Estate Deed of Trust for California with Assignment of Rents to Challenger, or any variation thereof and to provide to County a Substitution of Trustee and Full Reconveyance for said Real Estate Deed of Trust for California with Assignment of Rents in the form of the document at Exhibit B, hereto, which will then be recorded.

2. The County agrees to accept the reconveyance in full resolution of the quiet title action.

3. This stipulation is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States or the County of Merced, their agents, attorneys, servants, or employees, and it is specifically denied that they are liable to each other. This settlement is entered into by all parties for the purpose of compromising disputed claims and avoiding the expenses and risks of further litigation.

4. The parties agree to provide such other forms or documents, or take such other action necessary and proper to effect this settlement and its intents.

5. The parties agree that they will each bear their own costs, fees, and expenses.

6. The parties fully understand, accept and assume the risk that the facts on which this stipulation is executed may later be found to be different from facts now believed to be true, and the parties agree that this Stipulation shall remain effective, notwithstanding any such differences.

7. Each party declares and represents that no promises, inducements, or other agreements not expressly contained herein have been make; this Stipulation contains the entire agreement between the parties and the terms of this Stipulation are contractual and not mere recitals.

8. The parties represent that they have thoroughly read, know and understand the contents herein; they have executed this Stipulation voluntarily; they have not been influenced by any person or attorney action on behalf of any party.

9. The parties stipulate, and request the court to retain jurisdiction over this action until the parties file a stipulated request for dismissal without prejudice. The parties will file a stipulated request for dismissal without prejudice after the recordation of the said Substitution of Trustee and Full Reconveyance for said Real Estate Deed of Trust for California with Assignment of Rents.

10. This stipulation shall inure to the benefit, and be binding upon, each party, its predecessors, successors, subsidiaries, affiliates, representatives, assigns, agents, officers, directors, employees.

11. The parties agree that this stipulation, including all the terms and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety, and the parties expressly consent to such release and disclosure pursuant to 5 U.S.C. § 552a(b).

12. The United States makes no warranties, representations, promises and/or assurances of any type concerning the federal or state tax consequences, effects and/or implications concerning any of the matters referenced in this Stipulation, including, without limitation, the matters set forth in paragraph 1 above.

13. It is expressly understood and agreed that 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, and further that all prior oral understandings, agreements and writings are expressly superseded and are of no further force or effect.

14. This stipulation may be duly executed by any party on any number of counter parts, all of which taken together shall be construed as one document.

The parties request the Court endorse this stipulation by way of formal order.

Dated: March 15, 2013 BENJAMIN B. WAGNER United States Attorney By: /s/Jeffrey J. Lodge JEFFREY J. LODGE Assistant United States Attorney Attorneys for the United States Dated: March 15, 2013 JAMES N. FINCHER Merced County Counsel By: /s/Roger S. Matzkind ROGER S. MATZKIND Chief Civil Litigator Attorneys for Plaintiff

ORDER

The stipulation is approved. The United States has no real or personal property interest in the property formerly known as Castle Air Force Base based on the said Real Estate Deed of Trust for California with Assignment of Rents to Castle Challenger Learning Center Foundation, or any variation thereof. The United States will provide to County a Substitution of Trustee and Full Reconveyance for said Real Estate Deed of Trust for California with Assignment of Rents in the form of the document at Exhibit B, to the stipulation hereby approved; said document will then be recorded. The parties will provide such other forms or documents, or take such other action necessary and proper to effect this settlement and its intents. Each party will bear their own attorney fees, expenses and the court will retain jurisdiction over this action until the parties file a request for dismissal without prejudice.

This Court FURTHER ORDERS the parties, no later than May 14, 2013 and every 60 days thereafter to file joint status reports to address completion of settlement and progress to dismiss this action.

IT IS SO ORDERED.

20130318

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