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HomeMy WebLinkAbout07013 - DESERT WELLNESS SETTLEMENT AGR i ; WOODRUFF,SPRADLIN &S. .MART R���J JASON M.MCEWEN DIRECT DIAL.(714)415-1080 DIRECT FAX(714)415-1180 E-MAIL:JMCEWEN@WSS-LAW.COM September 7, 2017 I�7oi3 VIA FIRST CLASS MAIL r`n to Ms. Kathleen Hart 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 F" Re: City of Palm Springs v. Desert Wellness, et aL s- Riverside Superior Court Case Number PSC 1602065 Settlement Agreement and Settlement Check Dear Ms. Hart: The above-referenced action involved the City's efforts to stop the operation of unlicensed marijuana dispensaries at the property located at 4700 E. Vista Chino. The lawsuit resulted in the successful closure of the marijuana dispensary known as Desert Wellness. In addition to the closure of the unlawful marijuana business, default has been entered against Desert Wellness in the lawsuit due to its failure to respond to the City's complaint. The City has now also reached settlement with the owner of the property who was also named as a defendant, Helen Sossa, Trustee of the Sossa Family Trust Dated October 4, 2000 ("Sossa"). Pursuant to the terms of the settlement, Sossa may not authorize or otherwise permit operation of an unlicensed marijuana dispensary on any property under her control within the City of Palm Springs. In addition to the prohibitions regarding future operation of any unlicensed marijuana dispensary, Sossa agreed to pay the City the sum of$3,000. Enclosed please find the fully executed settlement agreement in this matter for your records. Also enclosed is a copy of the check made payable to the City of Palm Springs in the amount of $3,000. The original check is being sent to Mr. Geoffrey Kiehl for processing. If you have any questions, please do not hesitate to contact me. Best regards, WOODRUFF, SPRADLIN & SMART A Professional Corporation JASO M. MC - Enclosures 555 ANTON BOULEVARD,SUITE 1200 ■COSTA MESA,CA 92626-7670 ■ (714)558-7000 ■ FAX(714)835-7787 W W W.W SS-LAW.COM 1267525.1 SETTLEMENT AGREEMENT This Settlement Agreement("Agreement") is entered into by and between the City of Palm Springs ("City" or "Plaintiff') and Helen Sossa, Trustee of the Sossa Family Trust Dated October 4, 2000 ("Owner" or"Sossa"), The City and Owner are sometimes referred to herein individually as a"Party" and collectively as the "Parties." RECITALS 1. The Parties intend by this Agreement to resolve their disputes in the lawsuit entitled City of Palm Springs v. Desert Wellness, et al, Riverside Superior Court Case No. PSC 1602065 ("Litigation"), including all claims raised by the City's Complaint against the Owner. The City of Palm Springs filed a civil Complaint against the Owner on or about May 3, 2016. 2. The Litigation involves enforcement of Plaintiff's land use and zoning regulations pertaining the use of certain real property located at 3700 E. Vista Chino Road, Palm Springs, CA ("Property") which is owned by Owner; specifically the maintenance of a public nuisance by virtue of the use of the Property as an unpermitted marijuana dispensary by Owner's tenant, Desert Wellness ("Tenant"). 3. The purpose of this Agreement is to settle the existing dispute between the City and Owner related to the Litigation. NOW, THEREFORE, in consideration of the mutual covenants, promises and undertakings set forth herein and other consideration, the receipt and adequacy of which the Parties hereby acknowledge, the Parties agree as follows: AGREEMENT I. OWNER'S OBLIGATIONS. A. Compliance with the Palm Springs Municipal Code. Owner agrees that it will not lease, rent, use, or maintain, nor will it permit use of the Property at any time for the use of any marijuana distribution facility, cultivation site, storage site, testing laboratory, manufacturing site, or other marijuana related business of any kind (hereinafter"Marijuana Business") which is not in compliance with all provisions of the Palm Springs Municipal Code ("PSMC") and the Palm Springs Zoning Code ("PSZC"), any amendments thereto, and California law. This shall include but not be limited to any medical or recreational Marijuana Business. Owner further agrees that it will not rent, use,maintain or permit the use of any other property owned or otherwise under its control and located in the City of Palm Springs as a Marijuana Business of any kind,unless said Marijuana Business is in full compliance with the provisions of the PSMC, PSZC and California law. B. Eviction of Unpermitted Marijuana Business. Owner agrees that immediately upon its discovery or notification by the City of any use of the Property (or any other property owned or otherwise controlled by Owner in the City of Palm Springs) as a Marijuana Business 1 1260036.1 that does not possess or operate under a current and valid permit issued under the PSMC, PSZC and California law as applicable, Owner will evict, or initiate eviction proceedings against said Marijuana Business. Owner must evict, and pursue eviction to completion, any unpermitted Marijuana Business within sixty (60) days of its discovery of the unpermitted Marijuana Business. Nothing shall prevent the City from granting Owner an extension, in writing and at the City's sole option, if the City determines in its sole discretion that the Owner has moved forward with eviction proceedings in good faith. C. Payment of Funds. Within ten(10) days of full execution of this agreement, Owner must pay to the City, the sum of three-thousand dollars and zero cents ($3,000.00). D. Release of Claims. Owner hereby releases the City, the City's elected and appointed officials, officers, board members, members, owners, principals, officials, directors, employees, agents, attorneys and/or representatives, and each of them, (collectively, "City Released Parties"), from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees, costs, or causes of action, known or unknown, that Owner has or may have against the City or the City Released Parties, or any of them, arising from this Litigation. Notwithstanding the foregoing, any Party may enforce the terms of this Agreement. II. CITY'S OBLIGATIONS. A. Dismissal of Owner. Within five (5) of receiving the full settlement amount or the date that this Agreement has been fully executed by all signatories thereto, whichever is later, the City shall dismiss Owner from the complaint that is the subject of this Litigation. B. Release of Claims. The City hereby releases Owner, Owner's trustees, beneficiaries, officers, board members, members, owners, principals, officials, directors, employees, agents, attorneys and/or representatives, and each of them, (collectively, "Owner Released Parties"), from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees, costs, or causes of action, known or unknown, that City has or may have against Owner or the Owner Released Parties, or any of them, arising from this Litigation. Notwithstanding the foregoing,any Party may enforce the terms of this Agreement. III. MISCELLANEOUS PROVISIONS. A. Continuing Jurisdiction of Court. The Parties agree that the court shall retain jurisdiction over the Parties and this action to supervise and enforce the terms of this Agreement pursuant to California Code of Civil Procedure section 664.6. Upon any breach of this Agreement, the Parties agree that either party may seek an ex parte application to the court and/or shorten the time limits for notice in order to achieve speedy compliance with the terms of this Agreement. B. Benefited Parties. This Agreement shall be binding upon and inure to the benefit of each of the Parties to this Agreement and their respective representatives, heirs, devisees, successors and assigns. There shall be no third party beneficiaries. This Agreement shall not affect any rights that the City or Owner have pertaining to claims against any third party, including,but not limited to Owner's prior tenant, Desert Wellness. 2 1260036.1 C. Assumption of Risk. The Parties fully understand and declare that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, each Party assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. The Parties represent and covenant that they are fully informed regarding all facts related to this Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. D. Waiver of Section 1542. The Parties hereby forever waive, release and discharge one another, their respective agents, assigns, attorneys, contractors, departments, employees, officials, representatives, and servants (in the aggregate, "Party Representatives") of and from any and all claims, demands, rights, liabilities and causes of action, of every type and nature, known or unknown, choate or inchoate, liquidated or unliquidated,resolved or unresolved, which exist or may exist in favor of each Party (in the aggregate, "Claims"), arising out of, or in any way related to the Litigation as of the date of this Agreement's execution. The Parties further expressly waive the provisions of California Civil Code Section 1542 with respect to the items released above, which provides that: 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 affected his or her settlement with the debtor. The Parties hereby expressly waive the provisions of said Section 1542 as to all matters within the scope of the claims released hereby. The Parties hereby warrant and guarantee that they have full and complete authority to release all such claims on behalf of themselves, their heirs, assigns, and successors in interest. E. Construction Choice of Law, and Venue. The terms of this Agreement are the product of arms-length negotiations between the Parties, through their respective counsel of choice, and no provision shall be construed against the drafter thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any disputes concerning this Agreement shall be in Riverside County. In entering into this Agreement, the Parties represent that they have had an opportunity to obtain the legal advice of attorneys of their own choice, and that the terms of this Agreement are fully understood and voluntarily accepted by them. The Parties further represent that they do not rely and have not relied upon any representation or statement made by any Party or any other person with regard to the subject matter, basis or effect of this Agreement, other than the express provisions contained in this Agreement. If any action, at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief to which they or it may be entitled. F. Failure to Comply with Obligations. In the event of a breach of this Agreement, and subject to the notice and cure provisions described below, the City may move the Court, ex parte, for an order enforcing the terms of this Agreement, including but not limited to, an order appointing a receiver to take control of the Property to abate any public nuisance thereon. The 3 1260036.1 prevailing party shall be entitled to its attorneys' fees and costs related to the filing of this ex parte motion. G. Notice and Cure. A. Before any attempt to enforce the terms of this Agreement by any Party, there must first be written Notice of Default to the breaching Party by sending said Notice of Default by First Class Mail to: Owner: Helen Sossa, Trustee of the Sossa Family Trust Dated October 4, 2000 c/o Stephen Armstrong 75100 Mediterranean Palm Desert, CA 92211 City: City Clerk 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 B. The breaching party shall have fifteen calendar days to cure such default after written notice is mailed. H. Counterparts and Electronic Execution. This Agreement may be executed in counterparts which, taken together, shall constitute one and the same Agreement. This Agreement may also be executed and/or delivered by facsimile and/or email transmission and in such event all facsimile and/or scanned and emailed signatures shall be deemed originals for all purposes hereof. I. Authority. Each signatory to this Agreement represents and warrants that he or she is authorized to sign this Agreement on behalf of the Party for which he or she is signing, and thereby to bind that Party fully to the terms of this Agreement, and that none of the claims being released herein have been previously assigned to any other person. The City specifically warrants that it has authorized its City Attorney to execute the Agreement on its behalf. J. Headings. Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. K. No Inducement. Owner warrants that no promise or inducement has been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the Litigation. Owner further represents it has been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and he has been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 4 1260036.1 L. Effective Date. This Agreement to be effective as of the date that the signatures of the Parties (or those of their authorized representatives) are obtained. M. Entire Ag5eement. This Agreement: (a) constitutes the entire Agreement between the Parties concerning the subject matter hereof; (b) supersedes any previous oral or written Agreements concerning the subject matter hereof; and (c) shall not be modified except by a writing executed by the Party or.Parties to be bound thereby. AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE: Helen Sossa,Trustee of the Sossa Family Trust Dated October 4, 2000 By:r' ~ . La Title: APPROVED AS TO FO By: Stephen strong, sq. Counsel for Helen Sossa, Trustee of the Sossa Family Trust Dated October 4, 2000 City of Palm Springs [Mg11aAy slgretl b/fO.vaN L KgtM [Mf<n�artl 2.If o1KF o{Ny d Palm Smipx c.��"--"? I�zdxald.feWMP+�mspl^9Ra9w'•cU5 By: a1C.01i 6091R 6.6-0TOV Edward Kotkin, Esq. City Attorney City of Palm Springs iRLs ORM: [q.& Smart, APCy of Palm Springs 5 1260036.1 i V �� ROVER ARMSTRONG,APC Pacific Western Bank 21672 R `QJ*10i`EACCOUNT 74750 Highway 111 RMSf ONG '95TQ©MEDITERRANEAN AVENUE Indian Wells,CA 92210 ox t•wcwd. PALM DESERT,CA:92211 90-382011222 ` (766)'346-4741 8/2/2017 © Springs PAY TO TktE City �Palm S rin S ORDER OF $ rt+3,000.00 i Three Thousand and 00/100w+wwrt+++s.+#rt+k##kk++rt+++#+#k##+kkk+kRl++kk##+k+kkkk+rt+*k# #+++**wk+kkk+#+#++##+++kw++k++#k++++++ DOLLARS t { City of Palm Springs �c Xz 0, zc MEMO - - - _ Settlement of case PSC16{12065 AUTHORI O G®RE 109,541ro.,i rr,sl 673408 rc