Loading...
HomeMy WebLinkAbout7/28/2004 - STAFF REPORTS (2) rJUL7 2004 Pi RZ_CENDD d 0)) rP..' SETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS -`-- - ' This Settlement Agreement and Release of All Claims (the "Agreement") is entered into by and between Petitioner Citizens For Local Governmental Accountability ("Petitioner") and the Community Redevelopment Agency Of The City Of Palm Springs ("Agency") (collectively referred to as the "Parties") to terminate fully and finally all disputes arising out of, or related to, the Action defined hereinafter. RECITALS WHEREAS, on October 29, 2003, Petitioner filed a writ of mandate action against the Agency seeking to void a license agreement that the Agency entered into on September 3, 2003, permitting the Agua Caliente Band of Cahuilla Indians to use and develop a portion of Agency property known as the Prairie Schooner Parcel as a parking lot for use, in part, as parking for the new Spa Hotel & Casino (the "Action"); and WHEREAS, on December 17, 2003, the Agency Board approved a temporary overflow valet parking license and rescinded the prior license agreement for the use of the Prairie Schooner Parcel for valet parking for the Spa Hotel & Casino (the "Valet Parking Agreement"). Petitioner contends that this rescission is invalid and that it should be permitted to amend its petition to also challenge the Valet Parking Agreement; and WHEREAS, all Parties hereto wish to terminate this Action and to avoid the uncertainty and costs of trial, and any potential appeals therefrom, and to resolve fully and finally the dispute between the Parties as set forth in the Action and all disputes concerning the validity of the Valet Parking Agreement. AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, all Parties hereto agree as follows: 1. Settlement Payment. Following the execution of this Agreement by Petitioner, execution by its counsel of record, and approval by the Agency, the Agency shall pay Petitioner the total sum of THIRTY-NINE THOUSAND DOLLARS ($39,000.00) (the "Settlement Sum") within twenty-one (21) days of approval and execution of this Agreement by the Agency. Payment will be made in the form of a check made payable to Petitioner's counsel of record, Chatten-Brown& Associates. 2. Full Compensation For All Claims. All Parties acknowledge and agree that the payment of said Settlement Sum shall and does hereby frilly and totally compensate Petitioner for all claims made in the Action and all disputed claims arising out of or related to the validity of Petitioner's Initials A&W#32814 v.2 -1 Ow /f the Valet Parking Agreement, including all claims for attorneys' fees, costs, and/or damages. 3. Dismissal of the Action. Within ten (10) days of receipt of the Settlement Sum, Petitioner shall file a Request For Dismissal with the Court without prejudice and take all action necessary at its own cost and expense to cause the Action to be dismissed. All Parties shall bear their own costs and attorneys' fees. The Parties agree that the applicable statute of limitations have run for any and all challenges made by Petitioner in the Action and for any and all disputed claims arising out of or related to the validity of the Valet Parking Agreement, and that Petitioner is forever barred from renewing its lawsuit against the Agency on the aforementioned grounds. Notwithstanding the foregoing, this dismissal without prejudice does not foreclose any subsequent action by the Petitioner or its members on future agreements or actions by the Agency concerning the Prairie Schooner Parcel, except as to any and all challenges to the September 3, 2003 license agreement and for any and all disputed claims arising out of or related to the validity of the Valet Parking Agreement, which shall remain forever barred. 4. General Release. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, Petitioner does hereby release and forever discharge the "Releasees" hereunder, consisting of the Agency, its elected or appointed public officials, its officers, employees, and agents, including, but not limited to, each of their associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, elected or appointed public officials, attorneys, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which Petitioner has against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date of approval of this Agreement, without limiting the generality of the foregoing, any Claims constituting, arising out of, based upon, or relating to that certain suit now pending in the Superior Court of the State of California, County of Riverside, entitled Citizens For Local Governmental Accountability v. Community Redevelopment Agency Of The City Of Palm Springs, Case No. RIC 402532, as well as any matters, causes, or things whatsoever that were or have been alleged in the respective pleadings filed in said suit, or that arise out of or relate to the Valet Parking Agreement. 5. Discovery of Different or Additional Facts. The Petitioner acknowledges that it may hereafter discover facts different from or in addition to those that it now knows or believes to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 4 of this Agreement, and expressly agrees to assume the risk of the possible discovery of additional or different facts, and Petitioner agrees that this Agreement shall be and remain effective in all respects regardless of such additional or different facts concerning the above-referenced Action and matters that arise out of or relate to the Valet Parking Agreement. Petitioner's Initials -2- A&W 932814 v 2 6. Release of Unknown Claims. The Release set forth above in Paragraph 4 of this Agreement is a release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Petitioner may have as a result of the Action and the Valet Parking Agreement, except for any claims by Petitioner for future actions by the Agency, as set forth by Paragraph 3 of this Agreement. 7. Waiver of Civil Code Section 1542. Further, Petitioner expressly agrees to waive and relinquish all rights and benefits that it may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: " §1542. [General release; extent] 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." Petitioner's Initials 8. No Other Pending Actions. Petitioner represents that it has not filed any complaints or charges (other than the Action referenced above) against the Released 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 the Agency, 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 Petitioner, Petitioner will request such agency or court to withdraw and dismiss the matter forthwith. 9. Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by any party hereto, or any of its employees, or an affiliated person(s) or entity/ies, including the Agency's attorneys, all of whom have consistently taken the position that they have no liability whatsoever to Petitioner. 10. No Assignment of Claims. Petitioner warrants that it has made no assignment, and will make no assignment, of any claim, chose in action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. 11. Successors and Assigns. This Agreement, and all the terms and provisions Petitioner's Initials -3- A&W#32814 v 2 hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 12. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties further specifically represent that prior to signing this Agreement they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 13. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 15. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 16. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing parry shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 17. Injunctive Relief for Breach. The Parties acknowledge and agree that any material violation of this Agreement is likely to result in immediate and irreparable harm for which monetary damages are likely to be inadequate. Accordingly, the Parties consent to injunctive and other appropriate equitable relief upon the institution of proceedings therefor by any other party in order to protect the rights of the Parties under this Agreement. Such relief shall be in addition to any other relief to which the Parties may be entitled at law or in equity. 18. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 19. Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. Petitioner's Initials -4- A&W U2814 v.2 20. Ambiguity. The Parties aelmowledge 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. 21. 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. 22. Governing 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 without giving effect to conflicts of laws principles. 23. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. 24. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. 25. Authority To Sign. 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 authorized to execute and deliver this Agreement on behalf of said party and to bind that party, including its members, agents and assigns, (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. [SIGNATURE PAGE FOLLOWS] Petitioner's Initials -5- A&W 432814 v 2 ry s IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release of Claims, consisting of a total of 6 pages, on the dates set forth below. "PETITIONER" Dated: 2004 CITIZENS FOR LOCAL GOVERNMENTAL ACCOUNTABILITY By: MICHAEL ROSENFELD "AGENCY" Dated: , 2004 COMMUNITY REDEVELOPMENT AGENCY ATTEST: OF THE CITY OF PALM SPRINGS, a municipal corporation By: City Clerk MAYOR& AGENCY CHAIRMAN APPROVED AS TO FORM: Dated: 12004 C1 ATTEN-BROWN & ASSOCIATES By: DOUGLAS CARSTENS, ESQ. Attorney for PETITIONER Dated: P��t/ +�n , 2004 ALESHIRE& WYNDER, LLP By: rl'A1� `k?4 D AVID A�S/SHIRE,VS-Q. Agency Counsel dl,. 0 -6- RESOLUTION NO. OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING AN A SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS WITH CITIZENS FOR LOCAL GOVERNMENT ACCOUNTABILITY(RIVERSIDE SUPERIOR CASE RIC 402532) REGARDING THE PRAIRIE SCHOONER PROPERTY, MERGED AREA#2 ---------------- BE IT RESOLVED by the Community Redevelopment Agency of the City of Palm Springs that a Settlement Agreement and Release of All Claims with Citizens for Local Government Accountability (Riverside Superior Case RIC 402532) regarding the Prairie Schooner property, is hereby approved. ADOPTED this day of 2004. AYES: NOES: ABSENT: ATTEST: COMMUNITY REDEVELOPMENT AGENCY CITY OF PALM SPRINGS, CALIFORNIA By Assistant Secretary Chairman REVIEWED &APPROVED