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Home My WebLink About05799 - SHADOWROCK REAL ESTATE DEV LLC, CITY, AND SIERRA CLUB AND CENTER FOR BIOLOGICAL DIVERSITY SETTLEMENT AGR SETTLEMENT AGREEMENT This Settlement Agreement("Agreement")is entered into as of February 1,2009 (`Effective Date"),by and between Shadowrock Real Estate Development,LLC; Shadowrock,LLC; Shadowrock Development Corporation; Shadowrock Palm Springs LLC(collectively, "Property Owner");the City of Palm Springs (the"City"); and the Sierra Club and the Center for Biological Diversity (together with the Sierra Club, "Pctitionors"). The Property Owner, City and the Petitioners are sometimes referred to herein.individually as a"Party" and collectively as the"Parties" The Parties intend by this Agreement to resolve all claims between them as stated in the lawsuit entitled Sierra Club, et al, v. City nfPalm Spi,higs, et al., Riverside Superior Court Case No. Inc. 061833 ("Litigation"). RECITALS WHEREAS,the Litigation involves a dispute regarding the validity of a development agreement between the Property Owner and the City approved by the City in 1993 ("Development Agreement")that concerns real property in the City("Property"); and W I-IER) AS,the purpose of this Agreement is to settle all disputes related to the Litigation and the Development Agreement. AGREEMENT 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: 1. Development Agreement ofNo_Farce or Effect. By entering into this Agreement,the Property Owner and the City relinquish all rights under the Development Agreement which,if not expired by its terms, shall be and is deemed expired as of the Effective Date of this Agreement and agree that the Development Agreement shall hereafter be of no force or effect, The Property Owner and the City are not relinquishing any other rights, or the right to seek or approve future entitlements for the Property,by entering into this Agreement. Likewise,the Petitioners are not relinquishing their right to challenge future entitlements for the Property. 2. The Parties' Obli aga ons. a, Mutual Obligations: (1) Costs and Fees, The Parties hereby waive any right to collect any sums as costs or fees in or related to the Litigation from any person or entity, except as expressly set forth in Paragraph 2.b(2)herein. Without limiting the generality of the foregoing,the Petitioners waive any and all claims for attorneys' fees or costs they have or may have against the City related in any way to the Litigation or the Development Agreement. (2) Mutual Releases of Claims. The Property Owner hereby releases the Petitioners,and any of the Petitioners' officers, board members, members,owners, principals, officials, lenders,directors, employees, agents, attorneys and/or representatives,and each of them, (collectively,"Petitioner Released Parties")and the City, and any of the City's elected and appointed officials, officers,board members, members, owners, principals, officials, lenders,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, 1 known or unknown,that the Property Owner has or may have against the Petitioner Released Parties or the City Released Parties, or any of them,arising from this Litigation or the Development Agreement. The Petitioners hereby release the Property Owners,and any of the Property Owner's officers, board members,members,owners,principals, officials, lenders, directors, employees, agents,attorneys and/or representatives,and each of them, (collectively, "Respondent Released Parties")and the City Released Parties from any and all claims, lawsuits,demands,challenges,liabilities, damages,fees, costs, or causes of action,known or unknown,that the Petitioners, or any of them, have or may have against the Respondent Released Parties or the City Released Parties, or any of them,arising from this Litigation or the Development Agreement. The City hereby releases the Respondent Released Parties and the Petitioner Released Parties from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees,costs,or causes of action,known or unknown,that the City has or may have againstthe Respondent Released Parties or the Petitioner Released Parties, or any of them, arising from this Litigation or the Development Agreement. Notwithstanding the foregoing, any Party may enforce the terms of this Agreement. (3) Nothing in this Agreement shall be construed to limit the Petitioners' rights to challenge tmy future entitlements or to participate in any public process or to oppose any proposals or approvals of entitlements for development or other use of the Property or any other related proposals or approvals from any state,federal or local agency including, but not limited to, any permits, concurrences, biological opinions, detenninations of compliance, certifications, etc.; or to limit the Petitioners from pursuing litigation related to any future development or other uses of the Property. b. Property Owner's Obligations. (1) pismissalofL,iti Litigation. Within three court days after the Effective Date or the date the last Party signs this Agreement,whichever is later,the Property Owner shall request dismissal with prejudice of its cross complaint in the Litigation and shall obtain and provide to the Petitioners and the City written court confirmation of the dismissal. (2) Payment_ofthe Petitioners'Fees_and Costs. Within ten business days after receiving written covet confirmation that the Petitioners have dismissed their operative complaints(First Amended Complaint for Declaratory Relief and Petition for Writ of Mandate and First Amended Complaint in Intervention)in the Litigation with prejudice,the Property Owner shall pay the Petitioners' attorneys' fees and costs of$170,000. The payment shall be made by a check payable to Worden Williams APC and sent to Wayne Hrechtel,Esq.,Worden Williams APC, 462 Stevens Avenue, Suite 102, Solana Beach, California 92075. c, Petitioners' Obligations. (1) Dismissal of Liti ap tio17. Within throe court days after the Effective Date or the date the last Party signs this Agreement,whichever is later,the Petitioners shall request dismissal with prejudice of their operative complaints(First Amended Complaint for Declaratory Relief and Petition for Writ of Mandate and First Amended Complaint in Intervention)in the Litigation and shall obtain and provide to the Property Owner and the City written court confirmation of the dismissal. 3. Entire Agreement. 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. 2 4, Venefhtmd Parties. This Agreement shall bo binding upon arirt Inure to the 6engflt of each offho Parlios and thou`respective xopresentatives,lreirs,devisecs,successors and assigns. Thero shall lxs no third party benefrciarles, S. QgMs Inm rhoice of Law,and Venue, The terms of this Agreement we the product of arms-langth nogoliations bethveon rite ParUos,through.their respective connsel of choice, and nb provision shall be construed agairtst the drafter thereof, This Agreenent shall be governed by and censtncod hi accordance with the[awe ofthe State of California, The venue for any disputes concerning thij Agt•eernartt shall to in Riverside County, In entering into this Agreement, the Parties represenCthat they have had on opportunity to obtain the legal advice of attorneys of their own choice, and that the terms of this Agrwrnant are fury understood and voluntarily accepted by them, The Parties further rep>esent that they do not rely and have not relied upon any representation or statement made by any Party on any other person with regard to tho subject matter,basis or effect of this Agreement, other than the express provisions conlained in this Agreement, If any action,at law or In equity, inoluding 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' foes and costs, In addition to any other relief to whicil thoy or it may be entitled, i 6. Countexparls and 1?lcetronic Execution, This Agreement may be executed in orsuuterparts Which,talcel> togctber,shall constitute one and the samo agreement. This Agreement may also 6u e7teonted and/or delivered by facsimile anchor email imnsmission and In suoh event all facsirnilc and/or scanned and omailed signaferres shall be deemed originals for all purposes hereof j 7, Authority, L'ach signatory to this Agreement represents and warrants that he art she is authorized to sign this Agreement on behatf of the Party for which lie or she is signing,and thereby to bind that Party fully to the terms of this Agreement, and that nano of the claims being released hexoin have been previously assigned to any other person. AGRU,SD TO AND ACCTPTED A8 OF THE U FFE,CTIVE DATE: Slcrra C By: Title: Date; � to Center for Elologleal DIversity sy; i Title.- Dole; i 3 Z.d .L W118t7:01 600E OT Jew 4. Benefited Parties. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective representatives,heirs, devisees, successors and assigns. There shall be no third party beneficiaries. 5. Construction,Cholee of Law,and Venue. The terms of this Agreement are the product of arms-length negotiations between the Parties,through thee•respective counsel of choice,and no provision shall be construed against the drafter thercoS 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 furdrer 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, 6. Coumomarts 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 omailed signatures shall be deemed originals for all purposes hereof. 7, 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 lie or she is signing,and thereby to bind that Party fully to the terms of this Agreement,and that none of tho claims being released herein have been previously assigned to any other person. AGREED TO AND ACCEPTED AS OF THE L,FFECTIVE DATE: Sierra Club By: Title: Date: Cenfcrb+`f3'rjliit{ J 1 1 � Tl[le: 7141 GCcrrr3�5 Date: 10 March 2009 City of P ]pti,9 By: Title: Date: . /� � Shadowrock Palm Springs LLC By: Title; Date: Approved as to Form By: Attorney for Petitioner Center for Biological Diversity By; Attorney for Petitioner Sierra Club I Attorney for City of Palm Springs By: Attorney for property Owner SD%666032,8 4 Shadowrock Development Corporation City of Palm Springs By: By: Title: Title: Date: Date: Shadowrock Palm Springs LLC By: Title: Date: Approved as to)Worm: By: Attorney for Petitioner Center for Biological Diversity By: Attorney for Petitioner Sierra Clu By: �� 1 Attorney f z City of Palm Springs By: Attorney for Property Owner SMsaea3a.s 4 City of Palm Springs By; Title: Date: Shadowrack Palm Springs LLC By, r Title: miChnol Date: !V07 Approved as to Form: By: Attorney for Petitioner Center for Biological.Diversity By: Attorney for Petitioner Sierra Club By: Attorney for City of Palm Springs By: Attorney for Property Owner sM666o3z.a 4 City of Palm Springs By: Title: Date: Shadowrock Palm Springs LLC By: Title; Date: Approved s to Fenn: 3Y' ttorney for Petitioner Center for BioloZical Div=iiy By: Attorney for Petitioner Sierra Club By: Attorney for City of Palm Springs By: Attorney far Property Owner SM666032.6 4 City of PAlm Springs By: Title: Date: ShadmYrock Palm Springs LLC By: Title: Date: .Approved as to Form: By: I Attorney fox Petitioner Center for Biological Diversity Attorney for Petitioner Sierra Club By: Attorney for City of,Palm Springs By: Attorney for Property Owner 8D1GGGp32.S 4