HomeMy WebLinkAbout3/15/2016 - AGREEMENTS The following agreements are closed, per Doug Holland, on 03-24-2016, ok to
close so long we still have access to them.
They are all available in Application Extender.
A6827v� Villas De Las Flores
A6736 Wessman Dev & Friends of PS Mountains
A6612 Pacific Hospitality Group
A6606 CAPS Collective
A6588 People for Proper Planning
A6520 Douglas Calvin
A6486 Advocates for Better Community Dev
A6395 Brandenburg Revocable Trust
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement') is made and entered into this
l.9t day of Pf_, 2016, by and between the VILLAS DE LAS FLORES
ASSOCIATION, a California nonprofit mutual benefit corporation ("ASSOCIATION"), and the
CITY OF PALM SPRINGS, a California charter city and municipal corporation ("CITY").
ASSOCIATION and CITY may sometimes be referred to in this Agreement collectively as
"Panics" and individually as "Party."
RECITALS
A. ASSOCIATION is a California nonprofit mutual benefit corporation organized
and existing under Civil Cade section 4000, et seq., for the purpose of managing the
condominium development commonly known as Villas de las Flores in the City of Palm Springs,
County of Riverside, State of California, in accordance with the Declaration of Covenants,
Conditions and Restrictions recorded on February 26, 1973, as Instrument No. 24296, Official
Records of Riverside County, California, and all amendments and supplements("CC&Rs"); and
B. Pursuant to the CC&Rs, ASSOCIATION has the right and duty to manage,
maintain and control the real property consisting of its common area and more particularly
described as: ("Association Property").
Lots 1, 2 and 3 of Tract 4770-2, in the City of Palm
Springs, County of Riverside, State of California, as
per Map recorded in Book 80, Pages 58 through 59,
in the Office of the County Recorder of said
County.
C. CITY is the owner of the Tahquitz Creek Golf Course, which is adjacent to the
Association Property, and has the right and duty to maintain and control that property, legally
described provided in Exhibit "A" to this Agreement("City Property");and
D. ASSOCIATION and CITY wish to resolve a dispute (the "Dispute") concerning
the ownership of and responsibility for the forty-eight (48) palm trees in nineteen (19) clusters
along the boundary between the Association Property and the City Property (forty-four(44)trees
in seventeen (17) clusters on the Association's north boundary, four (4) trees in two (2) clusters
on the ASSOCIATION'S west comer boundary) (the "Subject Trees"); and
E. For many years, ASSOCIATION caused the Subject Trees to be trimmed
annually and otherwise managed and maintained, under the belief that the Subject Trees were on
Association Property; and
F. In or about 2012, ASSOCIATION hired a surveyor, who asserted that the Subject
Trees are on City Property, and ASSOCIATION thereafter requested that the CITY take over
responsibility for the Subject Trees, but the CITY refused; and
t
G. ASSOCIATION continued to trim and maintain the Subject Trees in order to
avoid damage to the common area roofs of nearby condominiums from falling palm fronds and
to maintain the attractiveness of the area; and
H. On June 5, 2013, ASSOCIATION obtained a topographic survey ("Survey"),
which is attached to this Agreement as Exhibit "A" and incorporated into this Agreement by this
reference; and
I. The Parties agree that the Survey confirms that the Subject Trees are located on
City Property and CITY acknowledges its responsibility to timely maintain, manage and trim the
Subject Trees.
NOW, THEREFORE, in consideration of the covenants contained in this Agreement and
other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
AGREEMENT
1.0 Release and Discharge
1.1 In consideration of the payment set forth in Section 2.0, and except for the
obligations created under this Agreement, ASSOCIATION hereby completely
releases and forever discharges CITY from any and all past, present and future
claims, demands, obligations, actions, causes of action, rights, damages, costs,
expenses and compensation of any nature whatsoever, which ASSOCIATION
now has or which may hereafter accrue or otherwise be acquired on account of the
Dispute.
1.2 This release and discharge shall also apply to CITY'S past, present and future
officers, directors, stockholders, agents, servants, representatives, employees,
subsidiaries, affiliates, partners, predecessors and successors in interest, and
assigns, and all other persons, firms or corporations with whom any of the former
have been,are now,or may hereafter be affiliated.
1.3 This release on the part of ASSOCIATION is a fully binding and complete
settlement among ASSOCIATION and CITY, their heirs, assigns and successors
concerning the Dispute.
1.4 With regard to the Dispute, ASSOCIATION acknowledges the following:
ASSOCIATION acknowledges and agrees that the release and discharge set forth
above is a general release. ASSOCIATION expressly waives and assumes the risk
of any and all claims for damages which exist as of this date, but of which
ASSOCIATION does not know or suspect to exist, whether through ignorance,
oversight, error, negligence, or otherwise, and which, if known, would materially
affect ASSOCIATION's decision to enter into this Agreement. ASSOCIATION
further agrees that ASSOCIATION has accepted payment of the sums specified
herein as a complete compromise of matters involving disputed issues of law and
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fact. ASSOCIATION assumes the risk that the facts or law may be other than
ASSOCIATION belief.
1.5 It is understood and agreed by the parties that this settlement is a compromise of
disputed claims, and the settlement payment herein is not an admission of liability
on the part of CITY.
1.6 There is a risk that, with regard to the Dispute, after the execution of this
Agreement, ASSOCIATION will manifest new damage, the scope, location, and
character of which is unknown and/or not discovered at the time this Agreement is
signed. There is a risk that the damage of which ASSOCIATION and its attorney
presently are aware may become more serious or otherwise increase in magnitude
(qualitatively and/or quantitatively). ASSOCIATION shall, and hereby does,
assume the above-mentioned risks. ASSOCIATION is aware of the provisions of
California Civil Code section 1542, which provides:
"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."
ASSOCIATION hereby expressly waives the provisions of said Section 1542 as
to all matters within the scope of the claims released hereby, meaning claims
arising out of the Dispute. ASSOCIATION hereby warrants and guarantees that it
has full and complete authority to release all such claims on behalf of itself, its
heirs,assigns, and successors in interest.
1.7 In consideration of the payment referred to herein, ASSOCIATION hereby fully
and forever completely releases, acquits, and discharges the CITY from any and
all claims, costs, demands, damages, attorneys' fees, and rights which arise from,
or are directly or indirectly related to, or are connected with, or caused by, the
Dispute.
2.0 Payment
2.1 Within thirty (30) days of execution of this Agreement by both parties, CITY
shall pay ASSOCIATION the not to exceed sum of Seven Thousand Eight
Hundred Dollars($7,800.00).
2.2 CITY agrees to trim the Subject Trees annually.
3.0 Construction
The section headings have been inserted for convenience only, and shall not be considered
or referred to in resolving questions of interpretation or construction. Whenever the context
requires, the singular shall include the plural, and the masculine shall include the feminine and
neuter.
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4.0 Enforceability of Provisions
If any provision or part of this Agreement is held by a court of competent jurisdiction to be
invalid,void or unenforceable,the remaining provisions shall nevertheless continue in full force and
effect without being impaired or invalidated in any way.
5.0 Entire Agreement
This Agreement and any exhibits constitute the entire agreement between the Parties
pertaining to the subject matter of the Agreement and the final, complete and exclusive
expression of the terms and conditions of the Agreement. Prior agreements, representations,
negotiations and understandings of the Parties, oral or written, express or implied, are superseded
and merged into this Agreement.
6.0 Modification
This Agreement may not be modified in any respect or rescinded, in whole or in part,
except by an instrument in writing, duly executed and acknowledged by both of the Parties, their
successors or assigns.
7.0 Severability
If any term,covenant, condition or provision of this agreement,or the application thereof to
any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of
this Agreement, or the application thereof to any person or circumstance, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated thereby.
8.0 California Law
This Agreement is made in, and shall be construed in accordance with,the laws of the State of
California.
9.0 Attorneys' Fees
In the event a lawsuit is filed or arbitration commenced between the parties to resolve any
controversy,claim or dispute regarding the terms and provisions set forth in this Agreement,the
prevailing Party shall be entitled to recover from the nonprevailing Party its costs of suit or
arbitration, including reasonable attorneys'fees as may be fixed by the court or arbitrator.
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10.0 Notice
Any notices, requests, demands, instructions or other communications in conjunction
with this Agreement shall be personally delivered, mailed via first class mail or emailed to the
parties as follows:
To CITY: Office of the City Manager
3200 E. Tahquitz.Canyon Way
Palm Springs, California 92262
To ASSOCIATION: Board of Directors
Villas de las Flores Association
c/o Personalized Property Management
68950 Adelina Road
Cathedral City,California 92234
Attn: Shelly Ruegsegger, CMCA
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IN WITNESS WHEREOF, the Parties have executed and entered into this Agreement as
of the date first written above.
"ASSOCIATION"
VILLAS DE LAS FLORES
ASSOCIATION,a California nonprofit
mutueli2-eaFpor n
Dated: BY
Name:
Title: President
i
Dated: By: 11
c. µ
Name:
Title: Secretary
"CITY"
CITY OF PALM SPRINGS,a California
municipal corporation >
Dated: By:
Name:
Title: �'�� /l�.v✓roGN�2
*Attoey
Attest:
y Clerk mm
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APPROVED BY CITY COUNCIL
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