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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: 1003/018/33052.02 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 2 1003/018/33052.02 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. 3 1003/018/33052.02 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: 4 1003/018/33052 02 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 ALESSH��IR__Eq& WYNDER, LLL�LP�� By: C�Y/PLQ.4 ee�- David J. Al a e, City (palm S mgs 5 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