HomeMy WebLinkAbout7/28/2004 - STAFF REPORTS (6) SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement') dated as of the day of
July 2004, is made and entered into by and between CITIZENS FOR QUALITY GROWTH IN
PALM SPRINGS ("CQGPS"), an unincorporated association, the CITY OF PALM SPRINGS
("City"), and DESTINATION RAMON LLC ("Destination Ramon"), a California Limited
Liability Corporation (collectively referred to as the "Parties"), with respect to the following
facts:
RECITALS
A. Destination Ramon has an interest in certain real property consisting of
approximately 31 acres located in the easterly portion of the City of Palm Springs, south westerly
of the Intersection of Ramon Road and Crosley Road.
B. On or about April 4, 2002, Destination Ramon submitted to the City of Palm
Springs (City) entitlement applications seeking approvals of a Tentative Parcel Map, Conditional
Use Permits, and Architectural Approvals to allow for the development of the Project Site into a
retail center of up to 277,000 square feet of Retail/Commercial uses including an approximately
225,000 square foot Wal-Mart, an associated free standing gas station with a 900 square foot
office/convenience kiosk, and four additional retail/commercial pads totaling approximately
51,000 square feet which would be developed into various commercial, retail or restaurant uses.
C. Subsequently, the Project was the subject of an environmental impact report
which, on or about April 14, 2003, was certified by the City as having been completed in
accordance with the California Environmental Quality Act ("CEQA"). Based thereon, the City
approved the Project subject to certain specific conditions of approval.
D. Thereafter, on May 20, 2004, CQGPS (an unincorporated association formed after
April 14, 2004, some of whose members are individuals residing in the City of Palm Springs)
brought suit against the City as Respondent, and Destination Ramon as Real Party in Interest, in
the Superior Court of Riverside County, State of California as Case number RIC 412627 (the
"Suit'), alleging various items of non-compliance with CEQA, and seeking to set aside the
approvals given the Project. The Court has not yet issued a Judgment thereon.
E. The Parties hereto have, through negotiation, reached this Agreement with one
another to resolve their disputes and want this Agreement to reflect their full and complete
understanding and agreement.
F. NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and in consideration of the mutual covenants,
promises and conditions set forth herein, it is agreed by and between the Parties hereto as
follows:
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OPERATIVE PROVISIONS
1. Payment by Destination Ramon: Within ten (10) days after the complete
execution of this Agreement and receipt of a full Dismissal of the suit in its entirety as to all
parties signed by CQGPS' attorney, JOHNSON & SEDLACK, Destination Ramon will pay to
JOHNSON & SEDLACK the sun of Five Thousand ($5,000) Dollars, inclusive of all attorneys'
fees, costs and expenses.
2. No Further Objection: In the future, Destination Ramon may elect to modify all
or part of the content of the Project or the Project Site and may need further permits or authority
relating to the Project or the modifications from City, or may engage in other actions which are
subject to CEQA. CQGPS shall take no action whatsoever to contest, delay, continent upon, or
otherwise involve themselves, in any such modifications or permits or authority or in any part of
the approval processes connected therewith. However, nothing herein shall permit Destination
Ramon to modify any of its obligations under this Agreement.
3. Binding on Others: It is understood and agreed that the performance called for by
Destination Ramon under this Agreement, and any and all portions hereof, shall be equally
binding upon, all successors, assigns, tenants, agents, servants, employees and/or attorneys of
Destination Ramon. Likewise, the performance called for by CQGPS under this Agreement and
any and all portions hereof shall be equally binding upon the successors, assigns, agents,
servants, employees, and attorneys of CQGPS as well as all members of CQGPS regardless of
whether such member was a member at the time of the filing of the Suit or thereafter becomes a
member.
4. Complete Agreement: This Agreement sets forth the entire agreement between
the Parties hereto, and fully supersedes any and all prior or contemporaneous agreements or
understandings between the Parties hereto pertaining to the subject matter hereof.
5. California Law: This Agreement is made and entered into in the State of
California, and shall in all respects be interpreted, enforced and governed under the laws of said
State. The language of all parts of this Agreement shall in all cases be construed as a whole,
according to its fair meaning and not strictly for or against any of the Parties.
6. Partial Invalidity: Should any provision of this Agreement be declared or be
determined by any Court of competent jurisdiction to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part,
term, or provision shall be deemed not to be a part of this Agreement.
7. Attorneys' Fees: Except as provided in paragraph 1 of this Agreement, each of
the Parties hereto agrees to bear its own attorneys' fees and costs incurred in connection with the
Suit as well as the negotiation or preparation of this Agreement and to hold the other Parties
entirely hannless therefrom.
In the event of any action at law or in equity between the Parties to enforce any of the
provisions or rights hereunder, the unsuccessful Party to such litigation covenants and agrees to
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pay to the successful Party all costs and expenses, including attorneys' fees, incurred therein by
such successful Party, and if such successful party shall recover judgment in any action or
proceeding, such costs, expenses and attorneys' fees shall be included in and as a part of such
judgment.
8. Enforcement: It is understood and agreed that except for the payment of the funds
set forth in paragraph 1 hereof, money damages would be inadequate to compensate the Parties
for any nonperformance. Accordingly, it is agreed that should any non-performance or breach
occur, the Party seeking enforcement shall be entitled to pursue any and all forms of equitable
relief, including, but not limited to, interim and permanent injunctions.
9. Jurisdiction: It is agreed that any enforcement hereunder shall be exclusively with
the Superior Court of the County of Riverside.
10. No Admission of Liability: This Agreement shall not in any way be construed as
an admission by either Party of any unlawful or improper acts whatsoever against the other or
any other person or entity, and each Party hereby specifically disclaims any liability, either
directly or indirectly, on the part of itself, its employees or agents. The Parties each hereby
acknowledge that they are entering into this Agreement based upon their intelligent and knowing
evaluation of the alternatives of allowing their disputes to be resolved through litigation. They
each acknowledge that they are entering into this Agreement freely, wholly without duress or
any coercion whatsoever, and that they are doing so because they have each concluded that it is
in their best interests to do so.
11. Third-Party Beneficiaries: The parties acknowledge that all Successors In
Interest of Destination Ramon as well as Wal-Mart Stores, Inc. and Wal-Mart Real Estate
Business Trust are express third party beneficiaries of this agreement and thereby may enforce
the terms of this agreement.
12. Release of Claims by CQGPS: Except for the duties of performance of
Destination Ramon created hereunder, CQGPS forever release any and all claims they now have
or hereafter may acquire against the City, Destination Ramon and/or Wal-Mart Stores Inc. and/or
Wal-Mart Real Estate Business Trust relating to the Project or the Project Site. In so doing,
CQGPS expressly waives and relinquishes all rights and benefits afforded by Section 1542 of the
Civil Code of the State of California, and do so understanding and ackiiowledging the
significance and consequence of such Civil Code of the State of California states as follows:
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 by him, must have
materially affected his settlement with the debtor.
Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of claims, CQGPS expressly
acknowledge that this Agreement is intended to include in its effect, without limitation, all
claims which CQGPS do not know or suspect to exist in their favor at the time of execution
hereof, and that this Agreement contemplates the extinguishment of any such Claim or Claims.
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13. Authority: Each individual executing this Agreement on behalf of a Party
represents and warrants that he or she is duly authorized to execute and deliver this Agreement
on behalf of such Party and that this Agreement is binding upon such Party in accordance with
its terms. Concurrently with the execution of this Agreement, CQGPS shall deliver to
Destination Ramon copies of such resolutions, certificates or written assurances evidencing
authorization to execute, deliver and perform this Agreement.
14. Headings: Headings, titles and captions are for convenience only, and shall not
constitute a portion of this Agreement or be used for the interpretation thereof.
15. Execution in Counterparts: This Agreement may be executed in counterparts,
each of which shall be an original, but all of which, when executed, shall constitute one
agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same
counterpart.
16. No Other Pending Actions: CQGPS represents that it has not filed any
complaints or charges (other than the action referenced above) against the Parties with any local,
state, or federal agency or court; and that if any such agency or court assumes jurisdiction of any
complaint or charge against Destination Ramon and/or the City, or its predecessors, successors,
heirs, assigns, employees, shareholders, officers, directors, agents, attorneys, subsidiaries,
divisions, or affiliated corporations or organizations, whether previously or hereafter affiliated in
any manner, on behalf of CQGPS, CQGPS will request such agency or court to withdraw and
dismiss the matter forthwith.
17. Ambiguity: The Parties acknowledge that this Agreement was jointly prepared by
them, by and through their respective legal counsel, and any uncertainty or ambiguity existing
herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted
according to the application of the rules on interpretation of contracts.
18. Waiver: Failure to insist on compliance with any term, covenant, or condition
contained in this Agreement shall not be deemed a waiver of that term, covenant, or condition,
nor shall any waiver or relinquishment of any right or power contained in this Agreement at any
one time or more times be deemed a waiver or relinquishment of any right or power at any other
time or times.
IN WITNESS WHEREOF the Parties hereto have, on the date first above stated, affixed
their signatures as evidence of their agreement hereto.
CQGPS
By:
Its:
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DESTINATION RAMON
By:
Stanley Rothbart, Manager
Destination Ramon LLC
CITY OF PALM SPRINGS
By:
City Manager
ATTEST
By:
City Clerk
APPROVED AS TO FORM AND CONTENT:
JOHNSON & SEDLACK
By:
Raymond W. Johnson
Attorneys for CQGPS
GRESHAM, SAVAGE,NOLAN & TILDEN
By:
Attorneys for Stanley Rothbart, President
Destination Ramon LLC
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By: C�Y/PLQ.4 ee�-
David J. Al a e, City (palm S mgs
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1003/018/33052.02
MINUTE ORDER NO.
APPROVING A SETTLEMENT AGREEMENT OF
ALL CLAIMS RELATED TO DESTINATION
RAMON, (WAL-MART).
I HEREBY CERTIFY that this Minute Order, approving a Settlement
Agreement of all claims related to Destination Ramon, (Wal-Mart), was
adopted by the City Council of the City of Palm Springs, California, in a
meeting thereof held on the 281" day of July, 2004.
PATRICIA A. SANDERS
City Clerk