HomeMy WebLinkAbout10/6/2004 - STAFF REPORTS (21) SETTLEMENT AGREEMENT
By and Between
The City of Palm Springs and Gary Nunn
This SETTLEMENT AGREEMENT(herein"Agreement") is made and entered into this
day of October,between the City of Palm Springs ("the City") and Mr, Gary Nunn("Mr.
NI_um"), as an individual and the owner of P.S.P.B., Inc., of which Mr. Nunn represents he is the
sole owner. (Hereafter, the City and Mr. Nwut shall collectively be referred to as "the Parties".)
This agreement supersedes and incorporates any other agreements between the Parties.
RECITALS
A. Mr. Nunn currently occupies the premises commonly known as the batting cages
at Demuth Park in the City of Palm Springs. (Hereinafter, the batting cage premises shall be
referred to as "the Property".) The Property is the subject of an unlawful detainer action (Riv.
County Court Case No. INC 043427) wherein a stipulated judgment has been entered with the
court on September 1, 2004, requiring Mr. Nunn to vacate the Property by no later than October
1, 2004.
B. Parties now wish to modify the date by which Mr. Nunn shall be required to
vacate the Property and enter into an Agreement regarding the disposition of certain fixtures,
structures, and other items currently located on the Property. Certain of these items are the
personal property of Mr. Nunn, but the City has agreed to purchase them for $20,000.00, and
accordingly, only limited specified items (in addition to debris, trash and junk items) shall be
removed from the Property.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Leave Property"As Is."
Mr. Nunn agrees to remove all debris, junk, rubbish, waste, bicycles, bicycle parts, and
other similar items fi-om the Property, but otherwise leave the Property "as is" and in its current
condition. Mr. Nunn shall strictly adhere to that Section 5.2 of his lease agreement with the City,
which requires him "to surrender the demised Premises with appurtenances, in the same
condition as when received and in good, clean and sanitary condition."
The Parties agree that Mr. Nunn may remove the following personal possessions from the
Property: miscellaneous bike rental equipment and bicycles, office equipment including desks,
tables and chairs, merchandise display cases, washer and dryer units, sills screening equipment,
BBQ patio table and chairs, and other personal effects such as clothing. All other items, which
may include Mr. Nunn's personal possessions or fixtures at the Property, shall remain at the
Property and are hereby transfer pursuant to the Bill of Sale, attached hereto as Attachment "A".
1 Numi Settlement Agreement
Specifically, the items which must be left by Mr. Nunn and conveyed to the City shall
include, but not be limited to, those items included in the following list. Said items shall be
conveyed in original condition (except for normal wear and tear), and completely free from all
debris,junk, rubbish, waste, bicycles,bicycle parts, and other similar items:
a. Eight station batting cage. The large, eight-station batting cage,
including all poles and netting, and its original cement slab shall be left on
the Property in good working order and condition. All eight pitching
machines, described as manufactured by ABC shall be left in their original
location and in good working order and condition. (Diagram#2)
b. Barbeque area. The barbeque area, including all equipment, grills, fuel
tanks (if airy),preparation counter, and other fixtures (excluding table and
chairs) shall be left on the Property in its existing location and in good
working order and condition. (Diagram#3)
C. Restroom building. The small, modular restroom located next to the
existing office shall be left on the Properly in its existing location in good
working order and condition. City acknowledges that the restroom does
not have a working toilet within it. (Diagram#4)
d. Office. The modular building formerly used as an office located near the
public entrance to the Property shall be left on the Property in its existing
location in good working order and condition. (Diagram#5)
e. Storage Building. The modular building formerly used as a storage
facility behind the bike rental facility shall be left on the Property in its
existing location in good working order and condition. The large steel
storage container which was placed next to the storage building shall
remain on site. (Diagram#7)
2. Time to Vacate the Property. In consideration for Mr. Nurm leaving the
aforementioned items at the Property, returning the Property to its original condition (except for
nonnal wear and tear), and ensuring the removal of all debris, the City shall agree to extend the
period by which Mr. Numi shall vacate the Property to November 1, 2004. Accordingly, by
November 1, 2004, Mr. Nurm shall completely vacate the Property and leave it (and all structures
and fixtures) in accordance with the terns of this Agreement. Under no circumstances shall Mr.
Nunn expect that an additional extension of time may be given.
3. Inspection Concurrent with Vacancy. Commencing at 9:00 A.M. on October
15, 2004 a preliminary walkthrough will be conducted on the property. Commencing at 9:00
A.M. on November 1, 2004, the Parties shall conduct a FINAL walkthrough inspection of the
Property to ensure that the Property and the above-mentioned items are in the condition required
under this Agreement. The inspection shall include a visual inspection of all rooms and items
required to be left by Mr. Nunn. If requested by the City, Mr. Nunn may be required to test the
2 Nunn Settlement Agreement
equipment left in the presence of the City's representatives or otherwise demonstrate that the
equipment left is in good working order. The Property shall not be deemed "accepted" by the
City until the walkthrough inspection is complete and the City has confirmed that Mr. Nunn has
conveyed the Property in substantial compliance with this Agreement.
4. Payment to Mr. Nunn. In consideration for Mr. Nunn leaving the
aforementioned items at the Property, returning the Property to its original condition (except for
normal wear and tear), and ensuring the removal of all debris, the City shall pay Mr. Nunn a total
of TWENTY-THOUSAND DOLLARS ($20,000.00), as follows: (a) within ten (10) calendar
days of the execution of this Agreement, the City shall pay TEN THOUSAND DOLLARS
($10,000.00); (b) after the FINAL walkthrough inspection described in paragraph 3, above, is
complete and the City has accepted the Property, the City shall pay the remaining TEN
THOUSAND DOLLARS ($10,000.00)on or before November 15, 2004. All payments shall be
made payable to Mr. Nunn by check, money order, or other cash equivalent. The City shall have
the right to retain any funds necessary to compensate it for Mr. Nunn's failure to strictly comply
with any responsibilities under this Agreement. (For example, if the City must hire a contractor
to remove any debris, junk, rubbish, waste, bicycles, bicycle parts, and other similar items from
the Property, at a cost of $5,000.00, then the City may withhold the final payment and deduct
from it a total of$5,000.00.)
5. Right of Entry. Upon the execution of this Agreement, the City shall have full
right of entry onto the Property without restriction to monitor efforts by Mr. Nunn to comply
with the terns of this Agreement. The City's right of entry shall include the right to inspect all
structures, rooms, buildings, and equipment of any kind located on the Property.
6. Indemnity. Mr. Nunn agrees to indemnify the City, its officials, officers, agents,
contractors and employees against, and will hold and save them and each of them harmless from,
any and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, ornissions or liabilities, (herein "claims or liabilities") that may be asserted or
claimed by any person, firm or entity arising out of or in connection with the negligent
performance of work, operations or activities of Mr. Nunn, his agents, employees,
subcontractors, or invitees, provided for herein, or arising from the negligent acts or emissions of
Mr. Numi hereunder, whether or not there is concurrent passive or active negligence on the part
of the City, its officers, agents or employees but excluding such claims or liabilities arising from
the sole negligence or willftil misconduct of the City, its officers, agents or employees, who are
directly responsible to the City, and in connection therewith:
(a) Mr. Nunn will defend any action or actions filed in connection with any
of said clai ns or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Mr. Numi will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform or activities of Mr.
Nunn hereunder; and Mr. Numi agrees to save and hold the City, its officers, agents, and
employees harmless therefrom.
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7. General Release of All Claims. Mr. Nunn and and any person acting by,
through, or under Mr. Nurm, hereby now and forever expressly releases and discharges the City,
its agents, servants, elected and appointed officials, employees, representatives, predecessors,
successors, assigns, assignors, attorneys, and independent contractors, from any and all claims,
demands, disputes, controversies, causes of action, damages, rights, liabilities, obligations, costs,
and expenses, if any, of whatever character and nature, arising under federal, state or local laws,
regulations, or ordinances, or arising in equity, present or future, known or unknown, suspected
or unsuspected, arising out of or related in any way to this action.
Said release and waiver includes,but is not limited to, any and all claims arising from
alleged property rights, due process rights, contract rights or breaches,public policy violations,
discrimination, harassment, civil rights violations under any federal, state, or local law, personal
injury, or emotional distress, save and except only the obligations and rights expressly created or
preserved by this Waiver.
8. Waiver of Riehts. Mr. Nunn understands and expressly agrees to waive all rights
under California Civil Code Section 1542 or any other similar law. California Civil Code
Section 1542 provides:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known to him must have materially
affected his settlement with the debtor."
Mr. Nunn acknowledges that the facts with respect to which he has given this general
release of the claims may turn out to be different from the facts they now believe to be true. Mr.
Nunn hereby assumes the risk of the facts turning out to be different, and agrees that this Waiver
shall in all respects be effective and not subject to termination or rescission because of any such
difference in facts. The City also acknowledges that the facts may turn out different than they
now believe to be true and agrees that this Waiver shall be effective in all respects and not
subject to termination or rescission because of any such difference in the facts.
9. Nonadmtssion of Liability. Nothing in this Waiver is to be construed as an
admission of liability of any person or entity, or as an admission of the absence of liability of any
person or entity. No rights shall inure to any third party from the obligations, representations,
and agreements of the Parties made herein.
10. Representations. In executing this Release, Mr. Nunn acknowledges and
represents that he is executing this Release freely, knowingly, and voluntarily and is fully aware
of the contents and effect thereof, and that his execution of this Release is not the result of any
fraud, duress, coercion, mistake, or undue influence whatsoever. Mr. Nunn acknowledges that
he has voluntarily executed this Release in good faith. Mr. Nurm agrees that he has been given a
full and fair opportunity to seek and receive legal advice regarding the effect of this Release prior
to signing it, including the opportunity to confer with an attorney regarding the Release's terms.
4 Numi settlement Agreement
Mr. Nurm farther acknowledges that reliance is placed wholly upon his and first hand
knowledge as to the terms of this Release. Mr. Numi understands and represents that no
statement with regard thereto made by or on behalf of any of the City and/or its agents and
employees has in any way influenced Mr. Nunn, except the express terns in this Agreement.
Other than the terns and conditions specifically set forth in this Release, Mr. Nunn does not rely
on any inducements, promises, or representations by the City or any person in executing this
Release, other than the terns contained herein.
11. Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of
the City, to: City Manager, City of Palm Springs, 3200 E. Tahquitz Canyon Way, Palm Springs,
CA 92262, with copy to: City Attorney, c/o Aleshire & Wynder, LLP, 18881 Von Karman, Suite
400, Irvine, CA 92612. In the case of Mr. Nunn, notices shall be sent to his attention at 3651
Mesquire Avenue, Palm Springs, CA 92264.
12. Intelzration, Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. This Agreement may be amended
at any time by the mutual consent of the parties by an instrument in writing.
13. Severability. hi the event that part of this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity
or unenforceability shall not affect any of the remaining portions of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
14. Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver. A
party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
15. Attorneys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not
the matter proceeds to judgment.
16. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
5 Nunu settlement Agreement
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the
date first written above.
[SIGNATURES ON THE FOLLOWING PAGE]
6 Numi Settlement Agreement
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F,MR '' RY NUN
DATE:
Gary N
FOR TI3E CITY OF PALM SPRINGS:
DATE:
David Ready, City Manager
APPROVED AS TO FORM:
DATE:
David Aleshire, City Attorney
ATTESTED TO BY:
DATE:
Patricia Sanders
Patin Springs City Clerk
7 Nmm Setflement Agreement
ATTACHMENT"A"
BILL OF SALE FOR PERSONAL PROPERTY, EQUIPMENT,
STRUCTURES AND OTHER ITEMS
(Demuth Park Batting Cages)
THIS BILL OF SALE is made as of 2004, by Mr.
Gary Nunn, as an individual and as the corporate officer and sole owner of P.S.P.B., Inc.
("Seller") to the CITY OF PALM SPRINGS, a municipal corporation (`Buyer").
KNOW ALL MEN BY THESE PRESENTS:
That for good and valuable consideration to be paid pursuant to the provisions of that
certain Agreement dated , 2004 between Buyer and Seller(the
"Purchase Agreement") Seller does hereby sell, assign, quit claim, transfer and deliver
unto Buyer, and its successors and assigns, seller's interest in all personal property,
fixtures, structures, equipment, and other items described in said Purchase Agreement,
including all right, title and interest therein and in any copyrights, licenses or other claim
thereto.
To have and to hold all such Property onto Buyer, its successors and assigns
forever.
IN WITNESS WHEREOF, Seller has xec t d this BiOalef the date first
above written.
By.
Its:
8 Nmm Settlement Agreement
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MINUTE ORDER NO.
APPROVING A SETTLEMENT AGREEMENT BY AND
BETWEEN THE CITY OF PALM SPRINGS AND GARY
NUNN RELATING TO CERTAIN REAL PROPERTY
KNOWN AS BATTING CAGES AT DEMUTH PARK
---------------
I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement by and
between the City of Palm Springs and Gary Nunn relating to certain real property known
as the batting cages at Demuth Park was adopted by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 6th day of October, 2004.
PATRICIA A. SANDERS
City Clerk
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