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HomeMy WebLinkAbout06145 - DESERT WATER AGENCY AND O'DONNELL GOLF CLUB SETTLEMENT AGREEMENT Q% WOODRUFF, SPRADLIN&SMART NADINE LALICH DIRECT DIAL:(714)415-105I DIRECT FAX:(714)415-1151 E,MAI.:NLALICHQWSS-LAW.COM July 19, 2011 N N Dom VIA FIRST CLASS MAIL �y -m z7� Z v+m Jay Thompson " o �D a City Clerk's Office N City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 02262 Re: Settlement and Mutual Release Agreement between O'Donnell Golf Club, City of Palm Springs and Desert Water Agency Dear Jay: Enclosed please find an original, fully-executed copy of the Settlement and Mutual Release Agreement in the O'Donnell Golf Club matter. Very truly yours, WOODRUFF, SPRADLIN & SMART A Professional Corporatio NA1 INE LALICH Assistant to Douglas C. Holland Enclosure A100 555 ANTON BOULEVARD,SUITE 1200 ■COSTA MESA,CA 92626-7670■(714)558-7000 ■ FAX(714)835-7787 W W W.WSS-LAW.COM 777020.1 SETTLEMENT AND MUTUAL RELEASE AGREEMENT 1. PARTIES. This Settlement and Mu 1 Release Agreement ("Agreement") is dated for reference purposes as of this S� day ofW,2011, and is entered into by and between O'Donnell Golf Club, a California corporation ("Club"), the City of Palm Springs, a California charter city ("City"), and Desert Water Agency, a public agency ("Agency"). The Club, City, and Agency are collectively referred to as "Parties". 2. RECITALS. 2.1 Thomas O'Donnell and the Club entered into a 99 year lease ("Lease") in 1944 for certain property in the City for use as a golf course and related uses ("Property"). Thomas O'Donnell subsequently deeded the Property to the City, subject to the Lease with the Club. In 1945, Thomas O'Donnell gifted 650 shares of Whitewater Mutual Water Company to the City. 2.2 On December 27, 2010, Club filed a claim against the City and the Agency alleging the City breached its lease with Club when the City sold shares of the Whitewater Mutual Water Company (the "Shares") to the Agency ("Claim"). Club claims a portion of the Shares were assets of the lease and that the City did not have the authority to sell or otherwise dispose of the Shares. On March 4, 2011, the Club filed a complaint against City and Agency (Case No. Inc-1101850) ("Lawsuit"). In response the Agency field a cross-complaint against the City ("Cross-complaint") 2.3 City and Agency dispute Club's claims and actions. City and Agency contend that all of the Shares were the sole property of the City; that the City had the authority to dispose of the Shares in its sole discretion; and that the Agency had the authority to purchase these shares. 2.4 The Parties desire to fully and finally settle and resolve the Lawsuit and Cross- complaint, and all other claims, disputes, and/or causes of action of whatever nature arising out of the City's sale of the Shares. The Parties expressly intend that this settlement shall also settle and resolve any claims for attorneys' fees and/or other costs or expenses incurred in this matter, each party agreeing to bear its own costs and expenses. 2.5 As set forth in Section 3.2 below, the City as landowner will contribute to the engineering, planning, purchase, and installation of a new landscape and golf course irrigation system ("Irrigation System") that will reasonably conserve water use and therefore benefit the Property. 3. TERMS. 3.1 Recitals. The Recitals, inclusive of all definitions provided and exhibits referenced are incorporated into and are a part of this Agreement. 3.2 Settlement. hi consideration of this Agreement and the promises set forth herein, the Parties agree and covenant as follows: (a) On the Effective Date of this Agreement, City shall deliver to Club payment of Six Hundred and Sixty-Five Thousand Dollars ($665,000.00) towards the Irrigation System. (b) Club agrees to pay the City an annual lump sum payment of Ten Thousand Dollars ($10,000.00) per year commencing on January 1, 2013 and ending January 1, 2043. The annual amount shall be paid no later than January 15 of each year. The Club shall have no obligation to make payment to the City under this Subsection (b) after the payment due January 1, 2043. (c) Club grants to the City, for the duration of the Lease, the right for one day each year to use the Property for a City sponsored event the details and scheduling for each event shall be reasonably coordinated between the President of Club and the City Manager of City or their respective designees. 3.3 Dismissal of Claim. Within ten (10)business days following the execution of this Agreement, Club shall dismiss the Lawsuit (and any other action) against the City and the Agency with prejudice and in its entirety. Agency agrees to dismiss its cross-complaint with prejudice within 10 days thereafter. 3.4 Mutual Release. In further consideration of this Agreement and in recognition of the benefits to be derived therefrom, and except as to the rights, duties and obligations of the Parties as set forth in this Agreement, the Parties hereby release, and fully and finally and forever discharge each other, and each of their associates, owners, predecessors, successors, heirs, executors, administrators, assigns, agents, directors, officers, partners, elected and appointed officials, employees, representatives, lawyers, and all persons acting by, through, under, or in concert with them or any of them (hereinafter collectively called "Additional Releasees") of and from any and all manner of actions or causes of action, in law or in equity, suits, debts, liens, liabilities, claims, demands, and damages of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), that the Parties may now have against each other or against any of the other Additional Releasees as alleged in or arising out of, or which could have been raised in, based upon, or related to the Lawsuit and Cross-complaint. Claims released per this Agreement do not include a Party's breach hereof. Provided, however, that nothing herein shall release or relieve the City or the Agency from their respective rights and obligations set forth in that certain Stock Purchase Agreement between the City and the Agency, approved by the City Council on April 7, 2010, for the sale and purchase of stock in Whitewater Mutual Water Company. 3.5 Waiver of Civil Code Section 1542. It is the intention of the Parties that the release entered into as part of this Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorney's fees, damages, losses, claims, liabilities and demands of any character, nature and kind, known or unknown, suspected or unsuspected, to be so barred; in furtherance of which intention the Parties expressly waive any and all right and benefit conferred upon them by the provisions of Section 1542 of the California Civil Code, 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 affected his or her settlement with the debtor. 3.6 No Assignment of Claim. The Parties represent and warrant that they have not sold, assigned or transferred, or purported to sell, assign or transfer, and shall not hereafter sell, assign or transfer, any obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, rights, actions, or causes of action released pursuant to this Agreement. The Parties also agree to defend, indemnify and hold one another harmless against any obligation, liability, demand, claim, cost, expense (including but not limited to attorneys' fees incurred), debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such sale, transfer or assignment or purported sale,transfer or assignment. 4. GENERAL PROVISIONS. 4.1 Integrated Agreement. This Agreement is the final and entire agreement between the Parties concerning the matters described herein. All agreements of the Parties with respect to the subject matter hereof are in writing and supersede all prior written and oral agreements and understandings of the Parties. This Agreement cannot be modified except by a written document signed by all of the Parties. None of the Parties are relying upon any other negotiations, discussions or agreements in connection with the subject matter of this Agreement. This is a fully integrated agreement. 4.2 Further Assurances. The Parties agree to take any action or execute any document as may be reasonably necessary to finalize and perform this Agreement. 4.3 Authori . The signatories to this Agreement represent and warrant that they have the authority to enter into this Agreement and bind the Parties. 4.4 Amendment. No modification of this Agreement shall be valid unless in writing signed by all of the Parties or their attorneys. The Parties shall not be bound by any representation, warranty, promise, statement or information, unless it is specifically set forth in this Agreement. 4.5 Waiver. The failure of any party to insist upon strict observance of, or compliance with, all of the terms of this Agreement in one or more instances, shall not be deemed to be a waiver of that party's right to insist upon such observance or compliance with the other terms of this Agreement. 4.6 Binding Effect. This Agreement shall bind and inure to the benefit of the heirs, executors, administrators; legal representatives, successors, assigns, associates, assigns, agents, directors, employees, officers, attorneys, and appointed and elected officials and affiliates of the Parties to this Agreement. 4.7 Construction. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. It is acknowledged that all of the Parties have had an opportunity to consult with their lawyers concerning the terms and conditions of this Agreement. This Agreement shall be deemed to have been drafted by all of the Parties jointly, and no party shall urge otherwise. All exhibits attached to this Agreement are incorporated herein by reference. Reference herein to "business days" shall mean and refer to those days that are not a Saturday, Sunday, legal holiday or City furlough day. 4.8 Survival of Representations. Warranties and Covenants. Except as otherwise provided in this Agreement, all representations, warranties and covenants set forth in this Agreement shall be deemed continuing and shall survive the execution date of this Agreement. 4.9 Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 4.10 Attorneys' Fees. Should an action be brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in prosecuting the action. 4.11 No Admission of Liability. Nothing in this Agreement shall constitute, be deemed to be, or be used by any Party as an admission of any kind for any purpose whatsoever. 4.12 Counterparts. This Agreement may be executed in faxed counterparts and when so executed by the Parties, this Agreement will be binding upon them and each counterpart will constitute an original document. 4.13 Effective Date. This Settlement Agreement shall be effective as of the date it is fully executed. If a date of execution is omitted by a signatory to this Settlement Agreement, the date of execution for that signatory shall be deemed the same as that of the last signatory to this Settlement Agreement to enter a date, and that date shall be the Effective Date. Remainder of Page Intentionally Left Blank Signatures Set Forth on Following Page EACH OF THE UNDERSIGNED HEREBY DECLARES THAT THE TERMS OF THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE HAVE BEEN COMPLETELY READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF VOLUNTARILY ACCEPTS THE TERMS WITH THE INTENT TO BE LEGALLY BOUND THEREBY. DATE: c/y r 12011 O'DONNELL GOLF CLUB a California corporation By: JS:� It'; By: DATE: 2011 CITY OF PALM SPRINGS, a California charter city / By. �'��J David H.Ready City Manager DATE: 2011 DESERT WATER AGENCY, a California public agency By: David K. Luker General Manager Approved as to Form: MURPHY&EVERTZ,LLP WOODRUFF,SP LIN& SMART By: Jlkll,'OBv: 44 4441� PtWteai E Dougl Holland City Aftorney EACH OF THE UNDERSIGNED HEREBY DECLARES THAT THE TERMS OF THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE HAVE BEEN COMPLETELY READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF VOLUNTARILY ACCEPTS THE TERMS WITH THE INTENT TO BE LEGALLY BOUND THEREBY. DATE: 12011 O'DONNELL GOLF CLUB a California corporation By: By: DATE: 2011 CITY OF PALM SPRINGS, a California charter city By: David H. Ready City Manager DATE: d atl e -h-At , 2011 DESERT WATER AGENCY, a California public agency By: DaAml . David K. Luker General Manager Approved as to Form: MURPHY & EVERTZ, LLP WOODRUFF, SPRADLIN & SMART By: By: Douglas Evertz Douglas Holland City Attorney