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HomeMy WebLinkAbout05737 - SETTLEMENT AGREEMENT WITH EL DORADO PALM SPRINGS LTD. Memorandum To: James Thompson, City Clerk Geoffrey Kiehl, Director of Finance From: Douglas Holland, City Attyrrie d i Date: October 15, 2008 Re: Settlement Agreement El Dorado Palm Springs, Ltd. V. City of Palm Springs (INC039083) At the City Council's closed session on October 1, 2008, the City Council authorized the City Attorney's Office to settle the El Dorado lawsuit against the City, authorized the City Attorney's office to negotiate for a settlement of the lawsuit consistent with certain parameters, and authorized the City Manager to execute this agreement and any related documents on behalf of the City. I have reviewed the Settlement Agreement that is attached to this Memorandum, and executed by David Ready on October 16, 2008, and I have determined that this document is consistent with the direction of the City Council and the authority the City Council provided this Office and the City Manager. The original Settlement Agreement and this memorandum should be filed and retained in the Office of the City Clerk; a copy of this memorandum and the agreement should be retained in the Finance Department as evidence of the payment requirements provided in the agreement. If you have any questions, please do not hesitate to give me a call. SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS (hereinafter, "Agreement") is made and entered into by and between EL DORADO PALM SPRINGS, LTD., a California limited partnership (hereinafter, "El Dorado") and THE CITY OF PALM SPRINGS, a charter city & municipal corporation (hereinafter, "City"). El Dorado and City are sometimes collectively referred to herein as the "Parties RECITALS A. El Dorado is currently the owner of some of the mobilehorne coach spaces contained within a 377 space E1 Dorado Ivlobilehome Park (the "Park"). In 1993, El Dorado owned the Park in its entirety and filed an application for a tentative tract map to convert the mobilehome park from a rental facility to a resident owned park (hereinafter, the "Conversion"). The tentative tract map application was given the number 28087 (the "Application"). The Application was recominended for approval, with conditions, by City's Planning Commission, which decision was then forwarded, as required by law, to City's City Council for final action. B. On August 2, 2000, City's City Council approved the Application for the Conversion subject to three (3) Conditions of Approval objected to by El Dorado (collectively, the "Objected to Conditions of Approval"). C. El Dorado thereafter petitioned for a writ of administrative mandamus (the "Petition") requiring City to strike the Objected to Conditions of Approval and approve the tentative tract map which petition bore Case No. INC 019351 (hereinafter, the "Writ Proceeding"). The Petition was denied by The I-Ion. Lawrence W. Fry of the Riverside County Superior Court. E1 Dorado appealed the writ denial and, in the opinion of El Dorado Palm Springs, .Ltd. v. City of Palm Springs, 96 Cal.App.4tli 1153 (2002), the California Court of Appeal determined that the Objected to Conditions of Approval were unenforceable and remanded the case for further proceedings. D. On or about October 22, 2003, El Dorado filed that certain Complaint for Inverse Condemnation, entitled El Dorado Palm Springs, Ltd. v. Cio; of Palm Springs, et al., Riverside County Superior Court Case No. INCO39083 (hereinafter, the "Action"). Subsequent to the initial filing of the Complaint in the Action, El Dorado filed a First Amended Complaint adding a cause of action for alleged substantive due process violations. E. The City has denied all allegations as set forth in the Complaint and the First Amended Complaint in the Action, and asserted certain affirmative defenses to the same. The Parties now desire to settle the Action without admitting liability to one another with the understanding that this Agreement is entered into in good faith and is made to resolve disputed claims and to avoid the costs and uncertainties of trial of the Action. Therefore, the Parties hereby agree as follows: 01003-0021/62623.01 1 TERMS AND CONDITIONS I. City shall pay to El Dorado the sum of$937,500.00 payable as follows: (a) $468,750.00 on or before October 31, 2008 ("the First Installment") by way of a check with immediately available funds made payable to El Dorado Palm Springs, Ltd. and delivered to El Dorado's counsel, Richard H. Close, Esq., Gilchrist & Rutter, 1299 Ocean Avenue, Suite 900, Santa Monica, CA 90401-1000 ("El Dorado's Counsel"). (b) S468,750.00 by way of a check with immediately available funds made payable to El Dorado Palm Springs, Ltd. and delivered to El Dorado's Counsel, on or before July 31, 2009 ("the Second Installment"). (c) Should payment of the Second Installment not be delivered to El Dorado's Counsel by the close of business on July 31, 2009, interest on that payment shall be deemed to have accrued from October 15, 2008 at the rate of 10% per annum, simple interest, and the same shall continue to accrue until paid with El Dorado having the right, pursuant to California Code of Civil Procedure § 664.6, to compel payment of the Second Installment, if necessary. 2. Within three (3) business days following receipt by El Dorado's Counsel of the Second Installment, El Dorado shall file that certain Request for Dismissal, with prejudice, a true and correct copy of which is attached hereto and incorporated herein as Exhibit 'T" 3. Upon three (3) business days following the full execution of this Agreement, El Dorado's Counsel shall file that certai i Notice of Settlement of Entire Case, a true and correct copy of which is attached hereto as Exhibit "2." 4. Except with respect to any claim associated with the enforcement or this Agreement, El Dorado, on the one hand, and City, on the other hand, and their predecessors, successors, and assigns, and each past or present employee, agent, representative, elected or appointed public official, attorney, accountant, officer, director, stockholder of the Parties, and all persons acting by, through, under or in concert with the Parties, or any of them, hereby release and forever discharge each other from and against any and all claims, demands, actions, causes of action, suits, debts, liens, contracts, liabilities, agreements, costs, remedies (including punitive damages, treble damages, statutory penalties and restitution), expenses or losses of any type, whether based in law or equity, on federal, state, local, statutory, or common law grounds, actions, or causes of action, whether known or unknown, concealed or not concealed, foreseen or unforeseen, accrued or not accrued, fixed or contingent, which were asserted by them against each other, could have been asserted by them against each other, or which could arise out of or be related to the Application, the Objected to Conditions of Approval, the Writ Proceeding, the Conversion, and the Action. 5. El Dorado and City represent and warrant that they have not purported to assign or assigned and that they will not assign, by assignment or other transfer or disposition, any interest in the Application, the Objected to Conditions of Approval, the Writ Proceeding, the Conversion, and the Action to any third party. 01003.0021/62623.01 2 6. The parties hereby acknowledge that they have been advised by their own legal counsel and are familiar with Section 1542 of the California Civil Code, to the extent applicable, if at all, which provides as follows: "General Release - Claims Extinguished. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." In connection with the forgoing, the Parties acknowledge that they may have sustained damages, losses, costs, or expenses that are presently unknown and unsuspected, and that such damage, losses, costs, or expenses as may have been sustained may give rise to additional damage, losses, cost, or expense in the future. Nevertheless, the Parties acknowledge that this Agreement has been negotiated and agreed upon in light of this situation and the Parties hereby expressly waive and relinquish any and all rights which the Parties may have under Section 1542 of the California Civil Code, or any other state or federal statute or common law principle of similar effect, to the extent applicable, if at all. 7. The Parties acknowledge that each has had the benefit and advice of independent legal counsel of their own choice in connection with this Agreement and each understands the meaning of each term of this Agreement and the consequences of signing this Agreement. 8. The Parties further declare and represent that they have reviewed this Agreement in its entirety and in malting this Agreement they have relied wholly upon their own judgment, belief, knowledge, investigation, independent legal advice and research regarding the nature, extent and duration of losses and damage caused by the other, if any, and upon their independent assessment of future business considerations, legal fees and expenses they would incur should the litigation continue and that they have not been influenced to any extent whatsoever in making this Agreement by any representations or statements regarding the same by any other party, or by any person or persons representing or acting for any other party. 9. This Agreement contains the entire agreement between the Parties to this Agreement, and all previous understandings, agreements, and communications prior to the date hereof, whether express or implied, oral or written, relating to the subject matter of this Agreement, are fully and completely extinguished and superseded by this Agreement. This Agreement shall not be altered, amended, modified, or otherwise changed except by a writing duly signed by all the Parties hereto. 10. This Agreement shall be interpreted, and the rights and duties of the Parties hereto shall be determined, in accordance with the laws of the State of California, as applied to contracts entered into and performed in California by California residents. 11. If any provision of this Agreement or the application thereof to any party or circumstance is held invalid or unenforceable, the remaining provisions of this Agreement and 01003-0021162623.01 3 the application of such provisions to other parties or circumstances, shall not be affected thereby, the provisions of this Agreement being severable in any such instance. 12. This Agreement may be executed in counterparts, each of which shall constitute an original. 13. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. 14. Any notice required by this Agreement shall be given in writing by not later than overnight delivery, to: To El Dorado: c/o Richard H. Close, Esq. Thomas W_ Casparian, Esq. Gilchrist &Rutter 1299 Ocean Avenue, Suite 900 Santa Monica, California 90401-1000 Telephone: (310) 393-4000 Facsimile: (310) 394-4700 To the City: City Manager Palm Springs City Hall 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Telephone: (760) 323-8362 Facsimile: (760) 323-8207 with a copy to: Douglas C. Holland, Esq. Woodruff, Spradlizz & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 and to: William W. Wynder, Esq. Sunny Soltani, Esq. Aleslure &Wynder, LLP 18881 Von Karmen Avenue, Ste. 400 Irvine, California 92612 15. The Parties shall bear their own attorneys' fees and all costs, of any kind, incurred in connection with the Application, the Objected to Conditions of Approval, the Writ Proceeding, the Conversion, and the Action, and in negotiating, executing, and consummating this Agreement. 16. Each of the Parties, without ,further consideration, agrees to execute and deliver such other documents and take such other action as may be.reasonably necessary to carry out the intent of this Agreement. 01003.0021/62623.01 4 17. Each party has participated in the negotiation and drafting of this Agreement. No party shall be deemed to be the drafter of this Agreement or of any particular provision hereof. Any presumption or principle that the language is to be construed against any party shall not apply. The headings in this Agreement are for convenience and are not intended to affect construction or interpretation. 18. This Agreement is binding and enforceable on the Parties pursuant to California Code of Civil Procedure § 664.6 and is admissible in Court as set forth in California Evidence Code §§ 1115-1128. The Riverside County Superior Court shall retain jurisdiction to enforce this Agreement. 19. If any future claim or lawsuit arises out of or relates to the Agreement, or to the enforcement of the terms of the Agreement, the prevailing party in such claim or lawsuit shall be entitled to its reasonable attorneys' fees and costs incurred in connection with enforcing the terms or conditions of this Agreement. 20. Each Party warrants and represents that the undersigned has the authority, in the mainier required by law, to execute this agreement on behalf and for the benefit of the Party signing the agreement. Dated: October ft, 2008 (EL DORADO) El Dorado Palm Springs, Ltd. a California limited partnership By: Goldstein Properties, Inc. A California corporation Its General partner James F. Goldstein, President Dated: October , 2008 (CITY) City of Palm Springs By David J. ltea y Manager t [SIGNATURES CONTINUE ON NEXT PAGE] 01003.0021162623.01 5 APPROVED AS TO FORM: Dated: October 2008 GLLCHRIST &RUTTER PROFESSIONAL CORPORATION By: Frank Gooch M, Esq. Attorneys for Plaintiff El Dorado Palm Springs, Ltd, Dated: October/5 , 2008 ALESHIRE & ER, LLF By: 4��-4 ` William . W de�sq. Attorneys £or efendant City of Palm Sprin [END OF SIGNATURES] 01003-0021/62623 01 6 ki6i A5737 Settlement Agreement with El Dorado Palm Springs, Ltd CIV-110 ATTORNEY OR PARTY WITHOUT ATTORNEY(Memo and Add,..) TELEPHONE NOW FOR COURTUBEONLY Prank Gooch ITT (SIGN 70996) (31.0) 393-4000 Gilchrist & Rutter Professional Corporation 1299 Ocean Avenue, Suite 900 ' Santa Monica, CA 90401 rcrrGRN�r FGR Nemof Pl azn La.l:f Z1 Dorado Palm 5 2zn s Ltd. Insert name of awn and namr vl lvdlvld dLlrlct and branch vaad,II any Rivexeido Superior Court Palm Springs Branch PI.AINTJf`NPETITIONCR; El Dorado Palm springs Ltd. , a California Limited Partnership DEFENDAN71RESPONOENT: City DE Palm springs, a Municipal corporation REQUEST FOR DISMISSAL CASEwUMAPR: [,,,]Poreonal Injury,Properly Damage,or Wrongful Death INC D39083 = motor Vehicle =Other []Famlly Law [J Eminent Domam X Otber s e0' ;lnvorsion Condemnation -A conformed co will not ba returned b the clerk unless a method of return Is provided with the document.- 1. TO THC CLERK: Please dismiss this acllon as follows: �mm� a. (1) ©With prejudice (2) Without prejudice b. (1) Complaint (2) Potion (3) U Cross-complaint flied by(nemo): on(dafo); (d) I ...I cross-oompleint flied by(name); on (data); (5) I,Z,I Entire action of all panlos and all causes of acllon (0) j ._ Other(specify):* Date, August- 2009 Gilchrist & Rutter professional Corp, 1^rank Gaorh TT1 (g➢N 7099Gf -� �,__ (TYPE OR PRINT NAME OF [� 'JATTORNEY OPARIYWITHo1TTATTOHNkl1 Attorneyorpanywilhoutallorney for F)Plaintiff * If diNmiuml roquected Is of spoallled paRlec only of epaolllea causos of X puntifflPetil oner DefendanURes�ondenl acllon only, or of spealllad omen-compleln(u only, so sloe and Idnnllfy the pnrtloo,esanad of 6000n,Or e00113-COMPln1nlo 10 be dlamiseod. `,_ I Cross-complainant 2.TO THE CLERK: Consent to the abovo dismissal Is hereby given" Date; (SIGNATURE) ITYPE OR PRINT NAME OF O ATTORNEY = PARTY WJTHOU1 ATTORNEY) Attorney or party without attorney for '•If a cross•complah-or Rouponuu(Family law)seeking a6trmallve relief du on gls,Ira ellomoy for cross-complahnnl(m9pondenl)must 010n this consonc PlaintllNPBltllGner („ DefBPdanl/Re9 Ondenl tenant If required by Coda of Civil Pmcodum uocllon 6E1(1)or Q). p Cross-complainant (To ee completed by clerk) 3. Dismissal entered as requested on(date): q. U Dismissal entered on (date)' as to only(name): S. 0 Dismissal not entered as roquostod for the following reasons(spaclry): 6. (-] a. Attorney or party without attorney notified an(dais): b. Attorney or party without attorney not notified, piling party failed to provide [] a copy to conform ( j moans to return conformed copy Data: Clerk,by ,Deputy R.a.1 a11 Fam Aniseed for Monasloq wo REQUEST FOR DISMISSAL, E Ed Coda of Cmli orvvadvm 5ssl Mann, Juald-1 Ocundl vl Oaid.l. Cal-Ruloe of CCUA,rulo a 13EO CIV-1101Rov,Janupry1,20071 sokut ny � clus A5737 Settlement Agreement with El Dorado Palm Springs, Ltd CM-200 ATTORNEY OR PARTY WITHOUT ATTORNEY(Nomo,State Bar number,and sddMss) FOR COURT USE ONLY Frank Gooch TTT (SSN 70999) Gilchrist & Rutter Professional Corp. 1299 Ocean Avenue, Suite 900 Santa Monica, CA 90401 TELEPHONENO: (310) 393-4000 FAX NO (Optional) (310) 394-4700 EMAIL ADDRESS(Optional). ATTORNEY FOR(Name) Plaintiff E1 Dorado Palm S rin s Ltd SUPERIOR COURT OF CALIFORNIA,COUNTY OF Riverside STRFETADDRESS 3255 E. Tahcuitz Canyon Way MAILING ADDRESS CITYANOZIPCODE Palm Springs, CA 92262 BRANCHNAME Palm Sprin s PLAINTIFF/PETITIONER: El Dorado Palm Springs Ltd. DEFENDANTIRESPONDENT- City of Palm Springs CASE NUMBER. NOTICE OF SETTLEMENT OF ENTIRE CASE INC 039083 JUDGE Hon. Kenneth G, ziebarch DEPT, 107 NOTICE TO PLAINTIFF OR OTHER PARTY SEEKING RELIEF You must file a request For dismissal of the entire case within 45 days after the date of the settlement if the settlement is unconditional.You must file a dismissal of the entire case within 45 days after the date specified in item 1 In below if the settlement is conditional. Unless you file a dismissal within the required time or have shown good cause before the time for dismissal has expired why the case should not be dismissed,the court will dismiss the entire case. To the court, all parties, and any arbitrator or other court-connected ADR neutral involved in this case: 1. This entire case has been settled. The settlement is: a. Unconditional. A request for dismissal will be filed within 45 days after the date of the settlement. Date of settlement: b. Conditional. The settlement agreement conditions dismissal of this matter on the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement. A request for dismissal will be fled no laterthan (date): August 15, 2009 2. Date initial pleading filed: October 22, 2003 3. Next scheduled hearing or conference: None set a. Purpose: b. = (1) Date: (2) Time: (3) Department: 4. Trial date: at. 0 No trial date set. b. 0 (1) Date: September 26, 2008 (2) Time: 9: 00 (3) Department: 107 1 declare under penalty of perjury under the laws of the State of California that the foregoing 's true and correct. Date: October , 2008 0 Frank Gooch _III (SBN 70996) / (TYPE OR PRINT NAME OFI J ATTORNEY O PARTY WITHOUT ATTORNEY) A7URE) Page 1 oF2 Form Adoptetl for Mandstory U:c NOTICE OF SETTLEMENT OF ENTIRE CASE r7I c.,L Ruic.ar coun mIe 313B5 Jud¢ia Council of Callfornla p n CM•200[Rev January l 20D7] SOFu It, CM-200 PLAINTIFF/PETITIOER: El Dorado Palm Springs Ltd. CASE NUMBER: INC 039083 FOEFENDANTIRESPOW'ENT: City Of Palm S r1n1 s PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF SETTLEMENT OF ENTIRE CASE (NOTE. You cannot serve the Notice of Settlement of Entire Case if you are a party in the action. The person who served the notice must complete this proof of service.) 1. I am at least 18 years old and not a party to this action. I am at resident of or employed in the county where the mailing took place, and my residence or business address is (specify): 2. 1 served a copy of the Notice of Settlement of Entire Case by enGiOSing it in a sealed envelope with postage fully prepaid and (check one): a. �_� deposited the sealed envelope with the United States Postal Service, b. placed the sealed envelope for collection and processing for mailing,following this business's usual practices, with which I am readily familiar. On the same day correspondence Is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, 3. The Notice of Settlement of Entire Case was mailed: a. on (date): b. from (city and state): 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Name of person served: Street address: Street address: City: City: State and zip code: State and zip code: b. Name of person served: d. Name Of person served: Street address: Street address: City: City: State and zip code: State and zip code. 0 Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached I declare under penalty of perjury under the laws of the State of California that the foregoing Is true and correct. Date: (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) CM-200[Rev Januarys 2001] NOTICE OF SETTLEMENT OF ENTIRE CASE P-g-2 oft