HomeMy WebLinkAbout06486 - ADVOCATES FOR BETTER COMMUNITY DEVELOPMENT SETTLEMENT AGR 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.
A6827 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 MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is entered into by and
between Petitioners and Complainants Advocates for Better Community DeveIopnient, a
California non-profit membership organization("ABCD") and Frank Tysen, an individual
("Tysen"), and Respondent and Defendant City of Palm Springs, a California charter city
("City"). Collectively,ABCD and City are referred to in this Agreement as the"Parties."
1. Advocates for Better Community Development("ABCD")filed the following two
lawsuits("Lawsuits") against the City of Palm Springs:
A. Advocates for Better Community Development v City of Palm Springs et al.,
Riverside Superior Court Case No.INC 1303538 (the "Referendum Case"); and
B. Advocates for Better Commum v. Ci of Palm S rip s et al.,Riverside
Superior Court Case No. RIC 1302004(the "Superior Court Action").
In the Referendum Case, the City prevailed at the trial court, but Petitioners filed an
appeal with the Fourth District Court of Appeal, Case No.E060383 (the"Appeal").
The Parties desire to compromise and resolve the Lawsuits to the extent provided
in this Agreement. Therefore, in consideration of the covenants in this Agreement and valuable
consideration received,the Parties agree as follows:
2. Dismissal of Lawsuits/Causes of Action.
A. Within 5 days of the full execution of this Agreement ABCD and Tysen shall file
a Notice of Abandonment of Appeal pursuant to California Rules of Court 8.244(b)(1) or any
other filing which is necessary to dismiss the Appeal.
B. Within 5 days of the full execution of this Agreement ABCD shall file a request
for dismissal with prejudice of any and all claims, allegations, and requests for relief from its
operative pleading,the Second Amended Petition for Peremptory of Mandate and Complaint for
Declaratory and Injunctive Relief("SAP"), relating to BIock C and the hotel,),including, without
Umitation,the claims, allegations,and requests for relief relating to generally or specifically to
Block C and the hotel in paragraphs 19, 20, 41,42,44,45,46, 47,48, 49, 50, 51, and the Prayer
for Relief of the SAP, including without limitation all references to 23269 and 23270 and shall
take no further action to contest any development approvals covered by this paragraph. Nothing
herein shall be construed as limiting ABCD's ability to contest any modification to the project
approved after the date of this Agreement.
C. Further,in Advocates for Better Community Development v Ci of
Springs et al„Riverside County Superior Court Case No. RIC 1302004,Petitioner shall file a
Notice with the Court indicating that Petitioner withdraws the arguments in Petitioner's Opening
Brief in Support of Petition for Writ of Mandate relating to Block C and the hotel
3. Upon receipt of conformed copies of the Notice of Abandonment,request for
dismissal, and the Notice referenced in Sections 2A,2B, and 2C of this Agreement, the City shall
promptly tender to ABCD and its counsel of record the sum of Fifty Thousand Dollars
($50,000.00) for fees and costs incurred by ABCD in connection with the Referendum Case.
1
4. Except as to such rights or obligations as may be created by this Agreement, and
as otherwise expressly provided in this Agreement,the Parties on their own behalf and on behalf
of their respective officers,directors, employees, agents, attorneys, successors and assigns,
unconditionally release each other and their respective officers, directors, employees, agents,
attorneys, insurance carriers, successors and assigns from any and all claims, demands,liabilities
and obligations,both known and unknown, of any kind relating to the Lawsuits,whether in law
or in equity,which each may have against the other prior to and including the date of this
Agreement(collectively,the"Released Matters").
5. With respect to the claims described in this Agreement and the Released Matters,
each party knowingly,voluntarily, and intentionally waives Section 1542 of the Civil Code
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 have materially affected his or her settlement with the debtor."
6. Except as otherwise expressly provided in Section 3 of this Agreement, each party
shall bear their own attorneys' fees and costs incurred in connection with the Lawsuits and the
negotiation, review, and preparation of this Agreement.
7. The terms and provisions of this Agreement represent a settlement and
compromise of claims held by the Parties against each other. Nothing set forth in this
Agreement is intended to,nor shall, be deemed an admission of either liability or any fact, event,
or omission of any party, and the provisions of California Evidence Cade section 1152 shall
apply to each and every provision of this Agreement, except insofar as it is required as evidence
in an action to enforce this Agreement.
8. Both 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(s) in
facts. Each party represents and covenants that it is frilly 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.
9. It is expressly understood, acknowledged,and agreed to by the Parties,that by
reason of entering into this Agreement,no party admits, expressly or impliedly,any fact or
liability of any type or nature with respect to any matter,whether or not referred to herein, or the
sufficiency of any claims, allegations, assertions,or positions of any party; no party has made
any such admissions; and this Agreement is entered into solely by way of compromise and
settlement only.
10. Each party to this Agreement represents and warrants there has been no
assignment or other transfer of any claims or causes of action which they are releasing pursuant
to the terms of this Agreement
11. This Agreement may be amended or modified only by a writing signed by all
Parties to this Agreement.
12. This Agreement constitutes the entire agreement between the Parties hereto with
respect to the subject matter hereof and the Parties acknowledge that there is no other agreement,
oral and/or written, between the Parties hereto.
2
t'
13. This Agreement is the result of arms-length negotiations. Parties acknowledge
that(1)this Agreement and its reduction to final form is the result of extensive good faith
negotiations between the Parties through their respective counsel; (2) said counsel has carefully
reviewed and examined this Agreement for execution by the Parties, or any of them; and (3) any
statute or rule of construction that ambiguities are to be resolved against the drafting party should
not be employed in the interpretation of this Agreement.
14. Petitioners and Complainants warrant 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 Patties or their
representatives, concerning the nature and extent of the injuries, damages or legal liability
thereof. The Parties further represent they have been represented by legal counsel during the
course of the negotiations leading to the signing of this Agreement, and they have been advised
by legal counsel with respect to the meaning of this Agreement and its legal effect.
15. Before commencing any Iegal action to enforce or prevent the breach of this
agreement or any provision hereof,the party seeking judicial relief("aggrieved party") must first
provide written notice to the other party("breaching party"),through their respective attorneys of
record by registered or certified mail detailing the alleged violation. Unless the breaching party
takes reasonable steps to cure the breach within ten (10) days after the date of notice of violation,
the aggrieved party may commence legal action,without any further notice,to seek enforcement
of any provision of the Agreement or a declaration of the party's rights and obligations. The
prevailing party in any such litigation may be reimbursed by the losing party for reasonable
litigation costs and attorney's fees.
16. The Parties agree that this Agreement is to be construed and interpreted without
regard to the identity of the party drafting this Agreement.
17. This Agreement may be executed in counterparts. A photocopy, facsimile, or
electronic pdf of the executed Agreement may be used as an original.
18. The Parties have carefully read this Agreement and have had the opportunity to
consult attorneys of their choice regarding its meaning and effect. Each party has either sought
the advice of counsel or has voluntarily waived his or her right-to do so. The Parties understand
the final and binding effect of this Agreement and the terms are acceptable.
19. This Agreement shall constitute the entire agreement between the Parties and
shall supersede all other agreements.
20. If a court declares any part of this Agreement to be invalid or unenforceable, the
remaining parts will remain enforceable, so long as they remain in accord with the clearly
expressed intent of the Parties hereto.
21. Each signatory to this Agreement warrants that they are.executing it with the full
authority of their principal.
22. This Agreement will be construed in accordance with the laws of the State of
California.
23. The leaders used in this Agreement are for the convenience of the Parties. They
are not to be considered in construction of the Agreement.
3
_. 1
z00T=i:IT-T00:aced py� JDI3CW 31t1eti8:t7I b66b£2£094:w0j,j 9T:BT bT02-62-NtJ2
24• The provisions of this Agreement shall not become effective or enforceable until
the City Council has adopted an Ordinance repealing Ordinance No. 1842, thereby cancelling the
special election called for the purpose of conducting an election on Resolution No. 23270.
ITS IS SO AGREED.
Dated: I
Print Name and Title: ;'!nLx LweAj iro,Ei:y p �
For. Petitioner and Complainant,
Dated:
U Advocat for brette Planning
� � t
Print Name and Title: Frank T s n L,-s p"L7t.l oN 11TC,07
For. Petitioner and Complainant,
Frank Tysm
Dated: Ol[zt jze t }
ATTEST: Print Name and Title: avr
rrC _
For. Respondent and Defendant,
?am7e �Thomps�Cily City of Palm Springs APPROVED BY CITYCOUNCiL
APPROVED AS TO FORM AND CONT41D)ouglwasolland,
Dated:
City Attorney
Attorney for City of Palin Springs
// G��� ✓�
Dated: � l
BabakNaficy U
Attorney for Advocates for Setter Community
Planning
4
SrS:aoed b6bb£2£09Lt :o.� 9b60£6SS06T OS3 ADI3t1N NUGUemoid 10:8T b102-62-Wf
t-d b666EZ£09L uu1A4unoc)Apooese3 dlg:gOb46Zunf