Loading...
HomeMy WebLinkAboutA7134 - DESERT VALLEY BUILDERS ASSOC. Agi3q SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is Entered into this day of April, 2018, by and between CITY OF PALM SPRINGS, a California charter city and municipal corporation, its governing body, employees, agents, representatives, successors in interest and assigns, and all persons acting by, through, under or in concert with any of them (collectively, the "CITY"), and the DESERT VALLEY BUILDERS ASSOCIATION, a California 501(c)(6) non-profit corporation (hereafter "DVBA"). CITY and DVBA are collectively referred to as the "Parties" or individually as a "Party" in this Agreement. Following Entry of this Agreement — accomplished by the signatures of both parties — this Agreement shall be executory subject to the commitment of both parties in good faith to support and achieve the Condition Precedent described below; when the Condition Precedent is satisfied this Agreement shall become fully and immediately Effective; if the Condition Precedent is not satisfied within 30 days from the date of Entry hereof, then this Agreement shall become null and void. RECITALS A. In accordance with Resolution No. 23854 adopted on July 15, 2015 (the "Resolution" or "Resolution No. 23854"), the City imposed increased fees as set forth in its "CITY OF PALM SPRINGS COMPREHENSIVE FEE SCHEDULE FISCAL YEAR 2015-2016". B. Resolution No. 23854 established as City policy an automatic fee increase provision at Section 2 ¶D, which states: "On July 1st of each year, all service fees and charges shall be automatically adjusted by an amount equal to the percentage of increase or decrease in total employee compensation for the current fiscal year's adopted budget versus the new fiscal year's budget as last computed before the public hearing." C. The automatic fee increase provision was carried forward and implemented in the 2016-2017 and 2017-2018 City budgets. DVBA objected to both the process and the legality of the mechanism for increasing fees. On October 30, 2017, DVBA filed a lawsuit, to wit, case number PSC 1705993 with the clerk of the Superior Court of the State of California, County of Riverside. D. On November 2, 2017, the Parties entered a `TOLLING AND STANDSTILL AGREEMENT." (the "Tolling Agreement") The Tolling Agreement allowed DVBA to dismiss the Lawsuit without prejudice (and would permit DVBA to re-file the Lawsuit if needed, ie. if settlement negotiations were not successful). The term of the Tolling Agreement expired on Friday, April 13, 2018 and DVBA filed a new lawsuit that day, to wit, case number PSC 1802147 (the "Current Lawsuit'). E. It is the intention of the Parties that an Amendatory Resolution be put before the City Council of the City of Palm Springs as soon as feasible following the entry of this Settlement Agreement. The Amendatory Resolution will, if approved by the Settlement Agreement City of Palm Springs-DVBA Page 1 of 9 City Council, repeal §2 ¶D of Resolution No. 23854 for FY 2018-2019 and future fiscal years, and replace that provision with certain specified provisions as agreed upon in this Settlement Agreement. The approval by the City Council of the Amendatory Resolution is described herein as the "Condition Precedent" because it must occur for this Agreement to be effective. F. This Agreement is intended to be a full, complete and final settlement of all issues arising from or related to the Resolution, the Fee Schedule, and/or the Current Lawsuit (in the aggregate, the "Issues"), through the date when the Parties execute this Agreement, and shall serve as a final resolution of same. G. The Parties are entering this Agreement because they wish to avoid the cost and expense of litigating the Current Lawsuit, undue acrimony between them, and any further unnecessary commitment of resources and time to the Issues. 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: I. NO ADMISSION OF LIABILITY AND RELEASES A. No Admission of Liability. Neither this Agreement nor compliance with this Agreement shall in any way be construed as an admission by either Party of the truth or falsity of any allegation arising from or related to any of the Issues, 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. B. Mutual Release of Claims. (1) DVBA hereby and forever releases and discharges 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, the "CITY's Related Parties") from any and all Claims arising from or relating to the Issues or any of them, and/or the negotiation and execution of this Agreement (in the aggregate, the "DVBA Released Matters"). (2) CITY hereby and forever releases and discharges DVBA, as well as DVBA's Related Parties, from any and all Claims arising from or relating to the Issues or any of them, and/or the negotiation and execution of this Agreement (in the aggregate, the "City Released Matters"). (3) The Parties 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, Settlement Agreement City of Palm Springs-DVBA Page 2 of 9 arising from or attributable to the Issues, or any of them. The Parties further understand and agree they are waiving any rights they have, may have had, or may have in the future, to pursue any and all remedies available to either of them, or to any of their Related Parties, under any Claim against the other Party or Related Parties, which Claim arises from or relates to the Released Matters, or any of them. C.Civil Code Section 1542 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 FOR 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. D Initials Y CITY Initials II. TERMS OF AGREEMENT A. The true and correct recitals above are incorporated by this reference in this Agreement. B. Condition Precedent. 1. Good Faith Efforts. By entering this Settlement Agreement the Parties agree that they will cooperate and use good faith efforts to place before the City Council of Palm Springs an Amendatory Resolution that, if approved by the City Council, will amend and modify Resolution No. 23854 by certain Essential Provisions pertaining to City policy for review and revision of development fees as part of its Comprehensive Fee Schedule. All of the Essential Provisions Settlement Agreement City of Palm Springs-DVBA Page 3 of 9 must be approved by the City Council in an Amendatory Resolution for this Settlement Agreement to be effective. 2. Expiration of this Settlement Agreement. If an Amendatory Resolution containing all of the Essential Provisions is not approved by the City Council within 30 days of entry of this Agreement, then this Agreement shall automatically expire and have no further force and effect. 3. Effective Date of AgreementlDismissal of Current Lawsuit. If an Amendatory Resolution containing all of the Essential Provisions is approved by the City Council within 30 days of entry of this Agreement, then this Agreement shall become fully and immediately effective the day of Council approval. DVBA shall, within 15 days after the effective date, take all required action to dismiss the Current Lawsuit and shall provide confirmation of such dismissal to the City within 2 days thereafter. 4. Essential Provisions: The Parties understand that they cannot by contract direct the exercise of legislative discretion by the legislative body of the City responsible for approval of City fees the City Council—but the Parties agree to put before the Council for consideration in connection with this Settlement Agreement the following Essential Provisions in an Amendatory Resolution: • Essential Provision (a): Effective for all City Fees adopted for FY 2018-2019 and for future fiscal years, Section 2 ¶D of Resolution 23854 shall be repealed. • Essential Provision (b): The annual Comprehensive Fee Schedule utilized by the City shall be considered and acted upon by the City through a Fee Resolution directed solely and specifically to the Comprehensive Fee Schedule. • Essential Provision (c): Insofar as the Comprehensive Fee Schedule contains development fees, permit fees, and/or regulatory fees that are subject to Government Code §66016, §66013, or§66014, the City shall follow the procedures of §66016(a) for the Fee Resolution, including but not limited to provision of notice of hearing on the Fee Resolution at least 14 days in advance of the hearing, and making available to the public 10 days in advance of the hearing the data indicating the amount of the cost, or estimated cost, required to provide the service for which the fee is collected and the revenue sources anticipated to provide the service, including General Fund revenues. Settlement Agreement City of Palm Springs-DVBA Page 4of9 • Essential Provision (d): Insofar as the Comprehensive Fee Schedule contains development fees, permit fees, and/or regulatory fees that are subject to Government Code §66016, §66013, or§66014, the Fee Resolution shall contain —and the City Council must approve—a factual finding that each of said fees do not exceed the estimated amount required to provide the services for which they will be charged under the Fee Resolution and Comprehensive Fee Schedule. • Essential Provision (e): Insofar as the Comprehensive Fee Schedule contains development fees, permit fees, and/or regulatory fees that are subject to Government Code §66016, §66013, and/or §66014, the Fee Resolution shall contain —and the City Council must approve— as to each of said fees either (1) a factual finding that the revenues in the last fiscal year did not exceed the actual cost of providing services for which the fee was collected, or (2) determine the excess of revenues over actual cost collected from that fee and direct that the excess revenue be applied to reduce the fee creating the excess in subsequent fiscal years. • Essential Provision (f): Insofar as the Comprehensive Fee Schedule contains development fees, permit fees, and/or regulatory fees that are subject to Government Code §66016, §66013, and/or §66014, and given that Government Code §66017 provides for a 60 day delay in the effective date after approval of said development fees, the Fee Resolution shall as a matter of scheduling and as a condition for the referenced development fees to be effective on the same preferred date of July 1 each year along with all the non-development fees in the Comprehensive Fee Schedule, be set for hearing by the City Council more than 60 days before the planned July 1 effective date of the entire Comprehensive Fee Schedule. For the Fiscal Year 2018-2019 Comprehensive Fee Schedule, the Parties acknowledge that the Council intends to consider it at a continued public hearing scheduled for May 2, 2018. If the Council approves the Comprehensive Fee Schedule for Fiscal year 2018-2019, including the above-referenced development fees, permits fees and/or regulatory fees contained therein, these fees will become effective on July 2, 2018. • Essential Provision (g): CITY hereby warrants and covenants that its increase in fees reflected on the Comprehensive Fee Schedule for fiscal year 2018-19 (the "18/19 Increase") will be in conformance with the percent change for February 2018, since February 2017, derived from the United States Bureau of Labor Statistics' Consumer Price Index for All Urban Consumers (CPI-U) for the "West Region," under the classification Region Settlement Agreement City of Palm Springs-DVBA Page 5 of 9 Listing of West Region — Size Class B/C — (2.5 Million or less)" (the "Index"). Accordingly, the 18/19 Increase will be at the rate of two and one half percent (2.5%). C. CITY reserves its legal right and discretion to consider and adopt, as CITY sees fit, any increase in fees reflected on the Fee Schedule for fiscal year 2019-20 (the 19/20 Increase") based upon (i) the annual percent change in the Index for a month of 2019 contrasted against the same month of 2018, and/or (ii) a comprehensive fee study secured by the CITY, prepared, considered and relied upon during the CITY's consideration of the 19/20 Increase (the "19/20 Fee Study"). The only limit upon CITY's discretion during the process of securing and developing the 19/20 Fee Study, and considering and adopting the 19/20 Increase (the "19/20 Process") shall be its policies in Resolution No. 23854 as amended, compliance with the Mitigation Fee Act and other applicable law. D. CITY understands and agrees that DVBA shall have all of the legal rights and remedies of any interested party with respect to the CITY's 19/20 Process. E. As specific consideration provided in the context of this Agreement, CITY agrees to make both its staff and any fee consultant hired to assist the City available to meet and confer with DVBA during the first quarter of 2019, prior to the public hearing when the 19/20 Increase will be considered by the City Council, in order that DVBA may provide the CITY with input as to CITY's methodology with respect to the 19/20 Fee Study. Provided that City and its consultant have —at the request of DVBA—met and conferred with DVBA and provided the data substantiating any change in fees, and if DVBA believes there are deficiencies in the proposed fees, then on the City s request DVBA will orally or in writing (at City's choice) advise the City of what it perceives to be deficiencies in the fees. The provision of any such oral or written disclosure by DVBA shall not be considered an administrative remedy or any limitation on the legal rights and remedies DVBA might otherwise have. F. Any annual increase in fees that specifically and with reference arises from or relates to the 19/20 Study, for any year after fiscal year 2019-20, shall be based upon (i) an annual percent change in the Index, and/or (ii) a fee study that supplements and/or updates data considered in the 19120 Study. The CITY's process of securing and developing any such supplemental study, and considering and adopting any such future fee increase shall be consistent with paragraphs II.C., II.D., and II.E. Ill. 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 its own costs, expenses and attorneys' fees incurred in connection with the proceedings and/or events Settlement Agreement City of Palm Springs-DVBA Page 6 of 9 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. DVBA represents that it has 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, or any right or remedy under the Tolling Agreement. 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. D. 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. E. 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 speck performance of that term and/or any other necessary and proper relief, including, but not limited to, damages. Settlement Agreement City of Palm Springs-DVSA Page 7 of 9 F. 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. G. 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. H. 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, or any portion thereof, by either Party. I. 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. J. 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, facsimile transmission of the Agreement, or a digital image of the Agreement transmitted by electronic mail, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. SIGNATURES FOLLOW Settlement Agreement City of Palm Springs-DVBA Page 8of9 IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement. DVBA Dated: �`y e`er° �� By: rhen GuOrrez, CEO APPROVED AS TO FORM McNeill Law Offices Walt McNeill, Esq. CITY OF PALM SPRINGS c Dated. By: David H. Ready, City M ager APPRL=-�S TO FORM Edward Z. Kotkin, City Attorney ��l 13N Settlement Agreement City of Palm Springs-DVBA Page 9 of 9