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HomeMy WebLinkAboutA6276 - WIND ENERGY PARTNERSHIP v NEXT ERA RESOURCESSETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE 1. Parties The parties to this Settlement Agreement and Mutual General Release (the "Release Agreement") are: a. Wind Energy Partnership, a California limited partnership, William W. Adams, an individual, Whitewater Energy Corporation, a California corporation, San Gorgonio Farms, Inc., a California corporation (collectively, "Wind Energy"), and b. NextEra Energy Resources, LLC, a Delaware limited liability company and Windpower Partners 1993, LLC (f/k/a Windpower Partners 1993, L.P.) (collectively, "NextEra"); and C. City of Palm Springs, City Council of the City of Palm Springs, and David H. Ready, in his official capacity as City Manager of the City of Palm Springs (collectively, "City of Palm Springs"). C. Wind Energy, NextEra, and City of Palm Springs are referred to herein collectively as the "Parties." 2. Recitals a. On October 14, 2011, Wind Energy filed a "Petition for Writ of Mandate and Complaint for Damages and Declaratory and Injunctive Relief" against NextEra and City of Palm Springs in the Superior Court for the State of California, County of Riverside, titled Wind Energy Partnership, et al. v. NextEra Energy Resources, LLC, et al., Case No. INC 1108424 (the "Action"). On November 28, 2011, Wind Energy filed a "First Amended Petition for Writ of Mandate and Complaint for Damages and Declaratory and Injunctive Relief' in the Action against NextEra and City of Palm Springs for (1) deprivation of due process; (2) writ of mandate under Code of Civil Procedure section 1085; (3) writ of mandate under Code of Civil Procedure section 1094.1, (4) public nuisance, (5) private nuisance, and (6) declaratory relief (collectively, the "Claims"). b. On December 27, 2011, NextEra removed the Action to the United States District Court, Central District of California, Case No. 5:11-cv-02050 R (OPx). On June 11, 2012, the Court entered Judgment in the Action against Wind Energy and in favor of NextEra and the City of Palm Springs on all of the Claims in the Action. LAW 1146570.3 C. Rather than further litigating the Action and for purposes of compromise only, the Parties intend by this Release Agreement to fully and forever resolve and settle all the Claims asserted in the Action, in accordance with the terms set forth herein. 3. Settlement Terms a. NextEra and the City of Palm Springs, and each of them, will not seek to recover or be reimbursed from Wind Energy for any attorney's fees, expert witness fees, and/or costs incurred, arising out of, and/or related to the Action. b. Wind Energy, and each of them, waives the right to appeal to any tribunal, including, without limitation, the Ninth Circuit, any and all orders, decisions, or judgments in the Action, including, without limitation, the Judgment in the Action, the summary judgment order against Wind Energy in the Action, and/or the order dismissing five of the six claims with prejudice in the Action. C. Except as otherwise expressly provided for herein, the Parties shall bear their own respective costs, including, without limitation, attorney's fees, expert witness fees, and judicial costs, with respect to the Action and this Release Agreement. d. In exchange for the foregoing promises, the Parties are entering into the releases of one another as set forth in paragraph 4 below. 4. Mutual Releases a. Subject to paragraph 4(i) below, Wind Energy, and each of them, hereby relieves, releases and forever discharges NextEra, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. b. Subject to paragraph 4(i) below, Wind Energy, and each of them, hereby relieves, releases and forever discharges City of Palm Springs, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. C. Subject to paragraph 4(i) below, NextEra, and each of them, hereby relieves, releases and forever discharges Wind Energy, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, LA01/ 1146570.3 2 directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. d. Subject to paragraph 4(i) below, NextEra, and each of them, hereby relieves, releases and forever discharges City of Palm Springs, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. e. Subject to paragraph 4(i) below, City of Palm Springs, and each of them, hereby relieves, releases and forever discharges Wind Energy, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. f. Subject to paragraph 4(i) below, City of Palm Springs, and each of them, hereby relieves, releases and forever discharges NextEra, and each of them, and all of its predecessors, successors, assigns, employees, former employees, officers, directors, parents, subsidiaries, affiliates, shareholders, partners, representatives, insurers, and attorneys, and each of them, from all the Claims asserted in the Action. g. It is understood by the Parties that there is a risk that any of them may incur or suffer loss, damage or injuries which arise from the releases contained in subparagraphs 4(a) through 4(f) of this Release Agreement, but which are unknown or unanticipated at the time of the execution of this Release Agreement. Further, there is a risk that loss or damage presently known may be or become greater than either party, and each of them, now expects or anticipates. Each of the Parties assume such risks that the releases contained herein shall apply to all such unknown and/or unanticipated losses, damages or injuries results arising from the releases contained in subparagraphs 4(a) through 4(f) of this Release Agreement, and, EACH PARTY WAIVES AGAINST THE OTHER ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY APPLICABLE SIMILAR PROVISION OF FEDERAL, STATE, OR FOREIGN LAW), WHICH PROVIDES AS FOLLOWS: "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 LAW 1146570.3 3 HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." h. The Parties agree and acknowledge that this waiver is an essential term of this Release Agreement. i. It is agreed and understood this paragraph 4 does not constitute a release of, or otherwise affect, any rights and obligations specifically created or reserved by this Release Agreement. The releases set forth herein are the result of a compromise and shall not for any purpose be considered an admission of the truth of the allegations, claims, or contentions of the Parties or an admission of any wrongdoing by any of the Parties. 5. Covenant Not To Sue The Parties will forever refrain and forbear from commencing, instituting, or prosecuting any lawsuit, action, motion, or other proceeding, in law, equity, or otherwise, against the other party hereto, or any of the other persons or entities released under the provisions of paragraph 4, based on the matters released in paragraph 4 above. 6. Reuresentations and Warranties a. The Parties each represent, warrant and agree that each has received, or had the opportunity to receive, independent legal advice with respect to the advisability of executing this Release Agreement. b. The Parties each represent, warrant and agree that, except for statements expressly set forth in this Release Agreement, no party has relied upon any statement, representation or promise of any other party, or of any employee, representative, or attorney for any other party in executing this Release Agreement or in making the agreements provided for herein. The Parties have included this clause to preclude the introduction of parol evidence to vary, interpret, supplement, or contradict the terms of this Release Agreement. C. The Parties each represent, warrant and agree that each has not assigned or otherwise transferred to any third party any claim that is being released pursuant to this Release Agreement. d. The Parties each represent, warrant and agree that the person executing this Release Agreement on its or his behalf has the full right and authority to enter into this Release Agreement and to fully commit and bind each of them to this Release Agreement. The Parties further agree that they will take all actions and execute and deliver all documents as are reasonably necessary to effectuate the terms of this Release Agreement. LA01/ 1146570.3 4 e. All representations and warranties contained in this Release Agreement shall survive its execution, approval, and delivery. f. The terms of this Release Agreement are contractual, not a mere recital, and are the result of negotiation among the Parties. All Parties have had a full and complete opportunity to provide input on the drafting and editing of the language of this Release Agreement, and therefore no presumption for or against any party based on the preparation of this Release Agreement will be applied in any action relating to, or arising out of, this Release Agreement. 7. Complete Agreement This Release Agreement is the final written expression and the complete and exclusive statement of all of the agreements, conditions, promises and covenants between Wind Energy, NextEra, and City of Palm Springs with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, negotiations, representations, understandings and discussions between the Parties and/or their respective counsel with respect to the subject matter covered hereby. Any amendment to this Release Agreement must be made in writing and must specifically refer to this Release Agreement and be signed by all of the Parties. 8. Successors and Assigns This Release Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Parties and each of them. 9. Subsequent Attornev's Fees and Costs In the event any action, motion, or other proceeding is brought for the interpretation or enforcement of this Release Agreement, or arising out of, or in any way related to, this Release Agreement, the successful or prevailing party shall be entitled to recover attorneys' fees, costs and expenses actually incurred in connection therewith, in addition to any other relief to which it or he may be entitled. 10. Headings and Severability The paragraph headings herein are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer. In the event that any of the terms of this Release Agreement are in conflict with any rule, law, or statutory provision, or otherwise are unenforceable under the laws or regulations of any government or subdivision thereof, or are otherwise deemed null and void, such terms shall be deemed stricken from this Release LA01/ 1146570.3 5 Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Release Agreement, and this Release Agreement shall continue in full force and effect. 11. Governing Law This Release Agreement shall be enforceable in the State of California, and shall be governed exclusively by and construed in accordance with the laws of the State of California. 12. Execution in Counterparts This Release Agreement may be executed by the Parties in counterparts, and when each party has signed and delivered one such counterpart to the other party hereto, each counterpart shall be deemed an original and taken together shall constitute one and the same agreement, which shall be binding and effective as to each of the Parties. A facsimile or electronically transmitted signature shall be deemed to be an original. Wind Energy Partnership Dated: July , 2012 By: Dated: July , 2012 Name: Its: William W. Adams Whitewater Energy Corporation Dated: July , 2012 By: Name: Its: LA01/ 1146570.3 San Gorgonio Farms, Inc. Dated: July , 2012 By: Name: Its: NextEra Energy Resources, LLC Dated: July , 2012 By: Name: Its: Windpower Partners 1993, LLC (f/k/a Windpower Partners 1993, L.P.) Dated: July , 2012 By: Name: Its: APPROVED BY CITY COUNCIL City of Palm Springs LA-0 0 Ovv pba1b Dated: y A 2012 B�- - Name: �-Am�5-H-o�u�so Its: Ate- j n1 &, C I" Nt "A&GR L < City Council of the City of Palm Springs Awr Dated:, 2012 B . Name: I �vr..tPS�0 Its: A e- NG CtT M �NAbt . Dated:Mi , 2012� LA01/ 1146570.3 P\ba1b Bette OCamb From: Nadine Lalich <NLalich@wss-law.com> Sent: Wednesday, November 14, 2012 2:30 PM To: Bette OCamb Cc: Douglas C. Holland; Douglas C. Holland Subject: AGREEMENT TO BE RE -SIGNED: Wind Energy Partnership, et al. v. NextEra - Final Settlement Agreement Attachments: Wind Energy_ Settlement Agreement (1146570_3).DOC Importance: High Bette, As we discussed, this will have to be signed by Doug (first), then City Clerk on behalf of CM and the Mayor. Then I need to send the signed agreement, or at least the signature pages, to the attorney who handled the matter for the City. After you give this to Doug, he may have another way to handle this matter... or not. Mucho thanks, Bette! Nadine Lalich Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, Ca 92626 Tel: (714) 415-1051 Fax: (714) 415-1151 From: Patrick M. Desmond Sent: Wednesday, November 14, 2012 11:04 AM To: Nadine Lalich; Christina M. Petteruto Subject: FW: Wind Energy Partnership, et al. v. NextEra Energy Resources, LLC, et al. - Final Settlement Agreement Importance: High Here is the agreement. City Council Minutes September 19, 2012 Page 2 City Attorney Holland reported the City Council authorized settlement for two items: Wind Energy Partnership v. NextEra Energy Resources, LLC et al. (Case No. INC 1108424, Riverside Superior Court, Indio Division) and Manuel Becerra-Perez Claim (City Claim No. 09-0214) and such settlements will be made public when fully executed and on file with the City Clerk, otherwise no reportable actions were taken. A6276. A6277. ACCEPTANCE OF THE AGENDA: Mayor Pougnet requested Item 2.D. be removed from the Consent Calendar for separate discussion. Councilmember Hutcheson requested Item 2.1. be removed from the Consent Calendar for separate discussion. Councilmember Mills requested Item 2.K. be removed from the Consent Calendar for separate vote. Councilmember Lewin requested Item 2.J. be removed from the Consent Calendar for separate discussion. ACTION: Accept the Agenda as amended. Motion Councilmember Mills, seconded by Councilmember Hutcheson and unanimously carried on a roll call vote. 1. PUBLIC HEARINGS: 1.A. APPROVE THE SALE OF THE CITY OWNED REAL PROPERTY, THE FORMER ANIMAL SHELTER SITE LOCATED AT 4810 CAMINO PAROCELA, (APN 690-101-032 AND 690-101-033) TO MICHAEL S. HOFFMAN IN THE AMOUNT OF $140,000: John Raymond, Director of Community and Economic Development, provided background information as outlined in the staff report dated September 19, 2012. Mayor Pougnet opened the public hearing, and the following speakers addressed the City Council. JOHN STILES, recommended the City Council approve the sale of the property and stated the purchase price is above the appraised value. No further speakers coming forward, the public hearing was closed. ACTION: 1) Approve an Agreement for the sale of certain City owned real property located at 4810 Camino Parocela (APN 690-101-032 and 690- 101-033) to Michael S. Hoffman, as trustee of the Michael S. Hoffman Living Trust, U/A dated August 4, 1994, in the amount of $140,000; and 4 6 z7 (� ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDNYYY) 9/15/2022 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(iss) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Beecher Carlson Insurance ServicnCEIVED Part Of Brown S, Brown Inc. 6 Concourse Parkway, Suite 2300 Atlanta, GA 30328 SEP 2 7 2022 CONTACT NAME: Ginny McCarthy PHONE 646-358-8537 FAX No: 770-870-3043 Ess: Ginn .McCarih BBrown.com INSURERS AFFORDING COVERAGE NAN:a RISURERA: Indemnity Insurance Cc of North America 43575 www.bbinsurance.com INSURED Otticeo a Uity Clerk Next Energy Resources Acquisitions, LLC NextEra Energy Resources, LLC INSURER e: WsuRERc: Ube Insurance Corporation azaoa INSURER D: 700 Universe boulevard Juno Beach, FL 33408 INSURER E: IXSUREft F COVERAGES CERTIFICATE NUMBER: 7n9RF 7n REVISION NIIMRFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL $UBR POUCYNUMBER POUCY EFF MID PODCY EXP M22 URM A COMMERCUIL GENERAL LIABILITY CGO G47345558 9/15/2022 11/16/2023 EACHOCCURRENCE $9000000 UANtAUE TO RENTED CLAIMS -MADE F-111OCWR PREMISES (Es OCParerReI $9DD0DW V MED EXP (Any one $1 O 000 Time Element Pollution PERSONAL & ADV INJURY $9 000 000 GENL AGGREGATE LIMIT APPLIES PER POUCY�JECr F-1LOC GENERAL AGGREGATE $10.000,000 PRODUCTS -COMPIOPAGG S90000DO $ OTHER: A AUTOMOMI LIMLrTY SCA H10751986 9/15/2022 11/15/2023 7daS'NdEED1SIN LE LIMIT $900000 ,0 BODILY INJURY(Pwixini0n) S ANYAUTO OIMNED AUTOS ONLY AUTTOSULED BODILY INJURY (Per eLTJderR ) S HIRED NCI -0W ED AUTOS ONLY AUTOS ONLY PROPERTYDAMAGE ecddeM S S UMeRELU LUIB OCCUR EACH OCCURRENCE S AGGREGATE $ EXCESS LUUS CLAIMS -MADE DEO RETENTIONS $ C WORNERSCOMPENSATION WA7-64D-443108.042(AOS) 9/15/2022 9/15i=3 PER C AND EMPLOYERS'LUIBILITY YIN OAFFGEOPRIE' EFPEXCLUDERDTECU'r H NIA WC7-641-443108-052 (WI) 9/1512022 9/15/2023 T ER E.L. EACH ACCIDENT $10000W E.L. DISEASE -CA EMPLOYEE $ (Mandatory In NH) U yes. describe under DESCRIPTION OF OPERATIONSM. E.L. DISEASE -POLICY LIMIT $1000000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, AddlUonal Remarks Schedule, may M ettedx+d U more space la r ulrad) City of Palm Springs Procurement and Contracting Department is included as additional insured (except workers' compensation) where required by written contract. The General Liability policy above contains a Severability, of interests clause. Waiver of subrogation is applicable where required by written Contract. This insurance is primary and non-contributory over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Palm Springs THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Procurement and Contracting Department ACCORDANCE WITH THE POLICY PROVISIONS. 3200 E. Tahquitz Can on Way Palm Springs CA g2262 t,� /J� AUTHORIZED REPRESENTATIVE �eC�P1G l.f(iC6DI Ot JOO Yrdf(Y(INCe SEY21lCPge)D /1n Insurance Services, LLC 01988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD 70255470 1 9.15.22 - 21.15.23 L3alJ3Jcy $20H 1 Gray Nacaz by 1 9/15/2022 3:24:04 PN (SPIT I Page a or .