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HomeMy WebLinkAbout07206 - GREGORY HUMPHREY AND JOHN ASHFIELD VACATION RENTAL SETTLEMENT AGR FOR 747 S CALIFORNIA AVE _ SETTLEMENT AGREEMENT This.Settlement Agreement ("Agreement") is entered into and effective this Q9 day of, August 2018, by and between CITY OF PALM SPRINGS, a California charter city and municipal corporation, its past and present council members, directors, .governing body,. employees, agents, predecessors, attorneys, divisions, departments, representatives,. insurers, successors in interest and assigns, and all persons acting by, through' under or in concert with any of them (collectively, the"CITY"), and GREGORY B HUMPHREY AND JOHN WILLIAM ASHFIELD (collectively, "MESSERS HUMPHREY AND ASHFIELD"). CITY and MESSERS HUMPHREY AND ASHFIELD are .collectively referred to -as the "Parties" or individually as.a "Party"with reference to the following. RECITALS A. On June 14, 2018 the City issued Citation ABO154 to 747 S California Ave, Palm Springs;California citing a violation of 5.25.040(a), Operating a Vacation Rental Without a Registration Certificate and 5.25.090 (c) Violations of the Palm Springs Municipal Code ("PSMC"). B. The property located at 747-S California Ave, Palm Springs, California had previously been issued' a Vacation. Rental Registration Certifcate by the City of Palm Springs Vacation Rental Compliance Department(VRCD)with an expiration date of January 31, 2018. C. Said property was managed by a third party agency that notified the VRCD staff in writing to close the Registration Certificate and associated Transient.Occupancy Tax Permit effective .March 1, 2018. with no indication of renewal; the VRCD acted- accordingly to do so. D. This Agreement is intended'to be a full, complete and.final settlement of, the appeal MESSERS HUMPHREY AND ASHFIELD may have or may have had against CITY up .and through the date MESSERS HUMPHREY AND ASHFIELD execute this Agreement, and shall serve.as the final resolution of this matter. E. The Parties are entering this Agreement because they wish to avoid further litigation and commitment of resources and time to this matter. NOW THEREFORE, and in consideration -for the promises contained herein, and other good and valuable consideration, receipt of which is acknowledged by the execution of this Agreement, and to avoid unnecessary litigation, it is agreed by and between.as follows: Settlement Agreement Page 1 I. NO ADMISSION OF LIABILITY AND RELEASES A. No Admission of Liability. Except as reflected below, neither this Agreement nor compliance with this Agreement shall.not in any way be construed as an admission by either Party of the truth or falsity of any allegation in, the above listed Citation, or as an admission of any unlawful act, omission, or any other liability whatsoever on the part of either Party. Each of the Parties specifically disclaims any liability to or against the other, or against any other person or entity. Except as specified in Section II.B. below, this Agreement cannot be used by a Party to demonstrate any admission of liability or wrongdoing by another Party. B. MESSERS HUMPHREY AND ASHFIELD'S Release of Claims. MESSERS- HUMPHREY AND ASHFIELD-hereby and forever release and discharge CITY, as well as-CITY's past and present council members, commissioners, directors, officials, employees, , contractors, agents, .volunteers, attorneys, divisions, departments, representatives, insurers; successors in interest and assigns, and.all persons acting by, through; under or in concert with any of them(in the aggregate,and each one of"CITY's Related Parties") from any and all causes of action, rights, claims, judgments, liens, indebtedness; damages, losses, liabilities, and demands of whatsoever kind or character, known or unknown, suspected to.exist or not suspected to exist, anticipated or not anticipated, whether or not it has been brought before any state or federal court, or before any state or federal agency,or other governmental entity(in the aggregate and each_ "Claim(s)"),which Claim(s)arise from or relate to the Citation ABO154 fisted above, and the negotiation and'execution of this Agreement. MESSERS HUMPHREY AND ASHFIELD understand and agree that this Agreement extends to all disputes or Claims of every nature and kind, known or unknown, suspected, past, present or future,.arising from or attributable to the above-referenced matters and. dispute. MESSERS HUMPHREY AND ASHFIELD understand and agree that they are waiving any rights they have; may have had, or may have in the future, to pursue any and all remedies available to them, or to any of their predecessors, successors, affiliates or related entities or persons, members, managers, partners, employees, contractors, volunteers, agents, representatives, attorneys, and assigns (in .the aggregate, and each one of "MESSERS HUMPHREY AND ASHFIELD's Related Parties") under any Claim against CITY or any of CITY's Related Parties.The Claims released by MESSERS HUMPHREY AND ASHFIELD. hereunder include-without limitation any "tort claim" or "government claim" under California Government Code § 914,.et seq:, and all other claims arising in contract, tort or equity under any other statute, whether federal, state or local up to the date of execution of this Agreement. C.CITY's Release of Claims. Except as specified below in Section 11.C., CITY hereby and forever releases and'discharges MESSERS HUMPHREY AND ASHFIELD,:as well as MESSERS HUMPHREY AND ASHFIELD's Related Parties, from any.and all Claims Settlement Agreement Page 2 arising-from.or relating to the Citation ABO154 listed above, and the negotiation and execution of this Agreement. CITY understands. and agrees that this Agreement extends to all disputes or claims of every nature and kind, known or unknown, suspected, past, present or future, arising from or attributable to the above-referenced matters and dispute. CITY understands and agrees that it is waiving any rights it has, may have had, or may.have in the future,to pursue any and all remedies available to it, or to any of CITY's Related Parties, under any Claim against MESSERS HUMPHREY AND ASHFIELD's Related Parties.. D.Civil Code Section 15:Q Waiver. Each of the Parties hereby certifies that it.has read and now expressly waives any and all rights that it may have, now or at any time in the future, pursuant to California Civil Code section 1542, which reads 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 HAVE MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR. The Parties recognize and acknowledge that factors which have induced them and each of them to enter into this Agreement.may turn out to be incorrect or to be different from what they had previously anticipated, and they hereby expressly assume the risks of waiving the rights provided by California Civil Code section 1542. GH HUMPHREY Initials ...CITY Initials Jq ASHFIELD Initials II. TERMS OF AGREEMENT A. The true and correct recitals above are incorporated by this reference in this Agreement. MESSERS.HUMPHREY AND ASHFIELD acknowledge and agree that with regard to 747 S California Ave, Palm Springs, California that the.violation of PSMC took place as specified above for which MESSERS HUMPHREY AND ASHFIELD have properly been cited by the CITY. B: The Parties agree for the violations alleged in the above listed Citation ABO154, MESSERS HUMPHREY. AND ASHFIELD shall owe, in a lump sum, five thousand dollars($5000.00)being due and payable to the CITY(the"Settlement Proceeds")within Settlement Agreement Page 3 twenty (20) days of MESSERS. HUMPHREY AND ASHFIELD's receipt of this Agreement executed by CITY. C. The Parties agree that the annual Vacation Rental Registration Fee is past due and. the associated delinquency penalty of 100% applies for which MESSERS HUMPHREY AND ASHFIELD shall owe, in a lump sum, eighteen hundred dollars ($1800.00) being due and payable to the CITY(the"Renewal Fees")within twenty .(20)days of MESSERS HUMPHREY AND ASHFIELD's receipt of this Agreement executed by CITY. D. The Parties agree that any advertising or operating of the Property located at 747 S California Ave prior to i)payment of the Settlement Proceeds, ii)payment of the Renewal Fees, and iii) submittal of a completed Vacation- Rental Registration Certificate application to the VRCD is a violation of 5.25.040 (a), Operating a Vacation Rental - _ Without a Registration Certificate and 5.25.090 (c) Violations of the PSMC. E. Notwithstanding PSMC 5.25.090 (c),the Parties agree that upon the City's receipt of the Settlement Proceeds and the Renewal Fees, MESSERS HUMPHREY AND ASHFIELD, I ogether and/or separately, are not permanently ineligible to operate a Vacation Rental in the City of Palm Springs as a result of the VRCD's issuance of Citation AB0154. F. The Parties intend that by August 16, 2018, MESSERS HUMPHREY AND ASHFIELD shall sign and return the Settlement Agreement the attention of the Assistant City Attorney. III. GENERAL PROVISIONS A. Each Party to Bear Own Fees and Costs. Aside from what is-specifically provided for in this Agreement, each Party shall bear their own costs, expenses and attorneys' fees incurred in connection with the proceedings and/or events resulting in and/or proceeding this Agreement, or in connection with any other claims made or investigated by either Party against the other ' in any forum (civil, criminal, administrative� or quasi- administrative),.and each of the Parties hereto expressly waives any claim for recovery of any such costs, expenses or attorneys' fees from the other Party. Attorneys for all Parties to this Agreement do likewise expressly waive any claim for recovery of costs, expenses and/or.attorneys'fees from the opposing Party. Neither Party shall be deemed a "prevailing party" by virtue of executing this Agreement. B. No Prior Assignments. MESSERS HUMPHREY AND ASHFIELD represent that they have not assigned or transferred, or purported to assign or transfer, to any person or entity, any Claim or any portion thereof or interest therein against CITY. Settlement Agreement Page 4 C. Enforcement. This Agreement is made and entered into in the State of California and. shall be governed, interpreted, and enforced under the laws of the,State of California, and applicable Federal Law.To the extent that any Party brings an action to enforce the terms of this Agreement, such action shall be filed and prosecuted in the Riverside Superior Court of California.The Parties further agree that this Agreement may be used as evidence in any subsequent proceeding in which either of the.Parties allege a breach of this Agreement or seek to enforce the:terms, conditions, provisions, or obligations. Should suit or a motion be brought.to enforce or interpret any party of Agreement, or respecting any matter arising out of this Agreement,whether sounding in tort or.contract, the.prevailing party shall be entitled to recover as an element of costs of suit, and not as damages, reasonable attorneys' fees to be fixed by the Court. E. Covenant to Effectuate Agreement. Each Party hereto agrees to do all things and execute and deliver all instruments and documents necessary to fulfill and effect the provisions of this Agreement and to protect the respective rights of the Parties to this Agreement. F. Waiver,of Terms of Agreement..No waiver by any Party of any breach of any-term or . . provision of this Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of the same,.or any other term or provision hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. It is further understood and agreed that if, at any time, a breach of any term of this Agreement is asserted by any Party hereto, that Party shall have the right to seek specific, performance -of that term and/or .any other necessary and proper relief, including, but not limited to, damages. G. No Duress or Undue Influence. The Parties represent and agree that they have carefully read and fully'understand all of the provisions of this Agreement, and that they, are voluntarily,:without any duress or undue influence on the part of or on behalf of any Party, entering into-this Agreement. H.. Consultation with Counsel. MESSERS HUMPHREY AND ASHFIELD affirm that, prior to execution of this Agreement, they have consulted with their legal co unsel/representative concerning the terms and conditions set forth herein, to the extent that she desired any counsel, and that they understand the advice, if any, provided to them. I. Entire Agreement. This Agreement contains all of the terms and conditions agreed upon by the Parties hereto regarding the subject matter of this Agreement. Any prior agreements, promises, negotiations; or representations, either oral or written, relating to the subject matter of this Agreement, not expressly set forth in this Agreement, are of no force or effect. Settlement Agreement Page 5 J. Interpretation. This Agreement has been jointly negotiated. The language in this Agreement,shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties, regardless of the drafting of this Agreement by CITY. K. Severability. In the event that any one or more provisions of the Agreement shall be declared to be illegal, invalid, unenforceable, and/or void by a court of competent jurisdiction, such provision or portion of this Agreement shall be deemed to be severed and deleted from this Agreement but this Agreement shall in all other respects remain unmodified and continue in force and effect. M. Execution of Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. IN WITNESS WHEREOF, the Parties hereto have executed the_Settlement Agreement and General Release. DEFENDANTS/APPELLANTS Dated: '08/09/16 By: Gr gory B Hump ey Dated: 08/09/18 By: John Wi 9mAshfield CITY OF PALM SPRINGS Dated:,. . ; :. By: ,, _- Peter N. King ASSISTANT CITY ATTORNEY Settlement Agreement Page 6