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HomeMy WebLinkAbout00296C - CITY OF INDIAN WELLS SETTLEMENT City of Indian Wells Settlement & Mutual Release re Redevelopment Litigation AGREEMENT #296 A3059 R827, 11-6-91 RESCISSION, RELEASE, AND SETTLEMENT AG.�m - — -- THIS RESCISSION, RELEASE, AND SETTLEMENT AGREEMENT ( "Agreement" ) is entered into as the "Effective Date" (as that term is hereinafter defined) by and among the CITY OF PALM SPRINGS ( "Palm Springs" ) , the CITY OF INDIAN WELLS ( "Indian Wells" ) , the REDEVELOPMENT AGENCY OF THE CITY OF INDIAN WELLS ( "Agency" ) , and the INDIVIDUALS SITTING ON THE CITY COUNCIL OF THE CITY OF INDIAN WELLS AND REDEVELOPMENT AGENCY OF THE CITY OF INDIAN WELLS IN THEIR CAPACITIES AS MEMBERS OF THOSE TWO GOVERNMENTAL BODIES ( "Individual Members" ) (collectively, the "Parties" ) . R E C I T A L S A. On or about February 8, 1989 , the Parties entered into a Settlement and Release Agreement ( "1989 Agreement" ) pursuant to which the Parties settled certain claims, differences, and causes of actions as described therein. B. The 1989 Agreement effected a settlement of certain litigation, entitled City of Palm Springs v. All Persons Interested, etc. , et al. , Riverside County Superior Court Case No. Indio 51330. The terms of the 1989 Agreement were also set forth in a Stipulation for Entry of Judgment in Case No. Indio 51330 (the "Stipulation" ) and entered as a stipulated judgment on April 7, 1989 (the "Stipulated Judgment) . C. The Parties have determined that it is in their mutual interest to rescind the 1989 Agreement and to effect a release of certain obligations contained in the Stipulation and Stipulated Judgment, as further set forth herein. D. The Parties acknowledge that redevelopment activity is a proper and beneficial endeavor and that it is in the interest of all cities in the greater Coachella Valley to cooperate to allow each City to pursue redevelopment within its own territory. A G R E E M E N T In consideration of the mutual covenants and promises set forth herein, the Parties agree as follows: 1. Rescission of 1989 Agreement and Release of Obligations. The 1989 Agreement, so far as the same is yet to be performed and so far as the same provides any restrictions or limits on current or future actions of the Parties and each of them, is hereby rescinded, terminated, 10/9/91 -1- RESCISSION, RELEASE, AND SETTLEMENT AGREEMENT INDIAN WELLS nullified, and dissolved and is of no further force and effect. Palm Springs hereby releases Indian Wells, Agency, and Individual Members from the obligations set forth in Paragraphs 5 through 14, both inclusive, of the Stipulation, and Palm Springs hereby waives its right to enforce the Stipulated Judgment as to said paragraphs . If the Parties have taken any actions pursuant to the 1989 Agreement, the Stipulated Judgment, or Stipulation, such actions shall not be affected by the rescission and release effected by this Agreement but shall stand as they currently exist. None of the Parties shall be obligated to pay any amount to, or take any action in favor of, any other party as restitution for any action taken or any expense or cost or damage incurred. 2. Waiver of Rights . Except for the obligations and rights conferred by this Agreement, the Parties hereby release and discharge each other (including their officers, directors, employees, agents, representatives, and successors) from and against any and all claims, demands, costs, contracts, liabilities, objections, actions, and causes of action of every nature, whether in law or in equity, known or unknown or suspected or unsuspected, incurred on or before the Effective Date of this Agreement by the Parties in connection with, or in any way related to the legal actions described in the 1989 Agreement. The Parties also expressly waive and relinquish any and all rights which each of them may have under Section 1542 of the California Civil Code, which states: "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 . " 3. Representation. The Parties hereby declare and represent that they are executing this Agreement with full knowledge of its provisions and after having received legal advice as to their rights from their respective attorneys. 4. No Liability. The Parties acknowledge and agree that this Agreement is entered into on mutually agreeable terms to effect the rescission of the 1989 Agreement and a waiver of each of the Parties ' right to enforce the Stipulated Judgment as to Paragraph 5 through 14, both inclusive, of the Stipulation. The provisions of this Agreement are not be construed as an admission of liability or responsibility on the part of any of the Parties . 10/9/91 -2- 0 • RESCISSION, RELEASE, AND SETTLEMENT AGREEMENT INDIAN WELLS 5. Binding Effect. This Agreement is binding upon, and shall inure to the benefit of the successors and assigns of each of the Parties. 6. Enforcement of Agreement. In the event any ligation is brought by any of the Parties to enforce any of the provisions of this Agreement, the prevailing party in any such litigation, in addition to any other relief to which it or they may be entitled, shall be entitled to reasonable attorney' s fees and costs, including such fees and costs incurred in discovery and on appeal. Any litigation between the Parties hereto arising out of or connected to this Agreement shall be brought in the appropriate branch of the Superior Court of the State of California in and for the County of Riverside. 7. Costs. Each of the Parties shall bear its own costs and attorney' s fees in the preparation, review, and approval of this Agreement . 8. Entire Agreement • Amendment. This Agreement is the entire agreement between the Parties concerning the subject matter hereof and supersedes all previous agreements between the Parties, whether oral or written, on the subject matter hereof. Any amendment or modification to this Agreement shall be in writing and signed by each of the Parties. 9 . Counterparts. This Agreement may be executed in counterparts, and execution of such counterparts by each of the parties shall have the same force and effect as if all parties had executed the same original Agreement. 10. Effective Date. The Effective Date of this Agreement shall be the latest of the dates set next to the signatures below evidencing execution by the all of the Parties. 10/9/91 -3- 0 RESCISSION. RELEASE, AND SETTLEMENT AGREEMENT INDIAN WELLS IN WITNESS WHEREOF, this Agreement has been executed by Palm Springs, Indian Wells, Agency, and Individual Members . CITY OF PALM SPRINGS Dated: 1991. By: f5 Mayor ATTEST: ITO B ity Clerk �.>)i� 11 f�" �il ll Ti` i;F9�i?i e'i"a CITY OF INDIAN WELLS Dated: 1991. By: Mayor ATTEST: By: (�a City Clerk REDEVELOPMENT AGENCY OF THE CITY OF INDIAN WELLS Dated: mac, I� , 1991 By: —94A (2 a, Chairman Attest: D/' / By: 66-i Secretary (ADDITIONAL SIGNATURES ON FOLLOWING PAGE) 10/9/91 1 -4- RESCISSION, RELEASE, AND SETTLEMENT AGREEMENT INDIAN WELLS INDIVIDUAL MEMBERS Richard R. Oliphait .William Arenstein James Killion arbara Slavens 8/394/014084-0003/003 10/9/91 -5- SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT is entered into on the �wG day of�i�� 1989, by and among the City of Palm Springs ("Palm Springs") and the City of Indian Wells ("Indian Wells") and the Redevelopment Agency of the City of Indian Wells (the "Redevelopment Agency") , Richard R. Oliphant, William Arenstein, James D. Aughtry, Don C. Briscoe and Philip Manuell in their capacities as members of the City Council of the City of Indian Wells and members of the Redevelopment Agency of Indian Wells (hereafter collectively referred to as "Defendants") . R E C I T A L S WHEREAS, Palm Springs has filed a complaint to determine the validity of proceedings and for declaratory and injunctive relief against Defendants, entitled City of Palm Springs v. All Persons Interested, etc. , et al. , Superior Court of the State of California, County of Riverside, Case No. INDIO 51330 ; and WHEREAS, the parties wish to avoid further expense of litigation and to settle all issues, in the manner described below, which have been raised and could have been raised in the litigation: C O V E N A N T S NOW, THEREFORE, in consideration of the above and of the covenants and conditions set forth below, the parties agree as follows: ARTICLE I DEFINITIONS : EXHIBITS Section 1.01. Definitions. As used herein, the following terms shall have the meanings ascribed thereto: "Complaint" means the complaint entitled City of Palm Springs v. All Persons Interested etc. , et al. filed in the Superior Court of the State of California, County of Riverside (Case No. INDIO 51330) . "Indian Wells" means the City of Indian Wells, a municipal corporation. "Palm Springs" means the City of Palm Springs, a municipal corporation. "Redevelopment Agency" means the Redevelopment Agency of the City of Indian Wells, a redevelopment agency organized and existing under the Community Redevelopment Law, commencing with Section 33000 of the Health and Safety Code. "Roadrunner Project Area" means the project area defined in the redevelopment plan adopted by Ordinance No. 234, dated August 13 , 1987. "Tax Increment Revenues" means that portion of the ad valorem property taxes actually received and retained by the Redevelopment Agency from increases in assessed valuation in the Roadrunner Project Area over the base year assessed valuation in the Roadrunner Project Area, as defined in Section 33670 of the Health and Safety Code, exclusive of ad valorem property taxes transferred to other public entities pursuant to a pass-through agreement; provided that Tax Increment Revenue shall refer and be 2 limited to those ad valorem property taxes collected as a result of the one percent (1%) levy authorized under Article XIII of the California Constitution. "Whitewater Project Area" means the project area defined in the redevelopment plan adopted by Ordinance No. 235, dated August 13, 1987. Section 1. 02 . Exhibits. The following exhibits are attached hereto and made a part hereof: Exhibit "A" - Form of Judgment. Stipulated Jud P Section 1. 03 . Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context otherwise indicates, words importing the singular number shall include Plural numbers and vice versa, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. Section 1. 04 . Reference to Agreement. The terms "hereby", "hereof", "hereto", 11herein", "hereunder" and any similar terms, as used in this Agreement, refer to this Agreement. ARTICLE II CONDITIONS OF SETTLEMENT Section 2 . 01. Conditions of Settlement. The covenants entered into herein by the Defendants are contingent upon the availability of Tax Increment Revenue from the Roadrunner Project Area. If Tax Increment Revenues become unavailable at any time as a result of any action or other proceedings, the covenants 3 shall not bind the Defendants for so long as Tax Increment Revenues are unavailable. Section 2 . 02 . Limitations on Use of Tax Increment Revenues. Tax Increment Revenue generated from the Roadrunner Project Area shall not be used for any of the purposes specified as follows: (a) Hotel development; (b) Conference/convention center development; (c) Parking structures as a component of hotel or conference/convention center development; (d) Golf courses, tennis facilities, swim centers or other recreational facilities for the exclusive or priority use of hotels and conference/convention centers; (e) Lost property tax revenues on facilities owned by Indian Wells; (f) Greenbelts and lakes for the exclusive or priority use of hotels and conference/convention centers; (g) Write-down of land costs; (h) Payment of disproportionate administrative costs; (i) Ordinary development costs and public facilities normally required to be installed by developer adjacent to developer projects; and (j) Customary fees charged to developers. Section 2 . 03 . Use of Tax Increment Revenue. Except as provided above, Tax Increment Revenue generated from the 4 Roadrunner Project Area may be used for any of the purposes specified as follows: (a) Employee or contractual services of Indian Wells or any local government agency which are directly related to redevelopment activities, as defined in Sections 33020 and 33021 of the Health & Safety Code; (b) Extraordinary development costs, that is, costs which would not normally be imposed upon or incurred by a developer for the construction or improvement of off-site public facilities, including, but not limited to, freeway overpasses and interchanges, bridges, flood control and drainage facilities, over-sizing of public facilities, street and roadway improvements, traffic signalization, utilities and other public facilities; (c) Any other redevelopment activities which primarily benefit the Roadrunner Project Area, not prohibited under Section 2 . 02 . Section 2 .04. Affordable Housing. Nothing contained herein shall limit or be construed to limit the use of Tax Increment Revenue generated from the Roadrunner Project Area: (a) For the provision and improvement of affordable housing; or (b) For any of the purposes specified in Section 33334.2 of the Health and Safety Code or other statutory or regulatory provisions relating to the subject matter thereof. 5 Section 2. 05. • Payment of Tax Increment. Indian Wells agrees to pay to Palm Springs a portion of the Tax Increment Revenues generated from the Roadrunner Project Area specified as follows: (a) First, the amount of $100, 000 to the general fund of Palm Springs to be used for any lawful purpose; and (b) Second, the amount of $3, 400,000 to a special fund of Palm Springs to be used exclusively for improvements to the Palm Springs Airport and appurtenant street improvements. The extent of participation by Indian Wells in the improvements specified in Subsection (b) above is based upon the concept that the County and all of the cities in the Coachella valley benefit from or will benefit from the Palm Springs Airport. Section 2. 06. Time of Payment of Tax Increment. Indian Wells agrees to make the payment to .Palm Springs, in the amounts and order of priority specified in Section 2.05, from the first available Tax Increment Revenues generated from and received by Indian Wells from the Roadrunner Project Area, after deducting amounts necessary for deposit in the Low and Moderate Income Housing Fund, pursuant to Sections 33334. 2 and 33334 .6 of the Health and Safety Code. These Tax Increment Revenues shall be paid to Palm Springs, within thirty (30) days after receipt thereof by Indian Wells. Section 2 . 07 . First Lien on Tax Increment; Covenant of Superior Lien. Indian Wells agrees that the obligation under Section 2 . 06 shall constitute a first lien upon Tax Increment Revenues generated from and received by Indian Wells from the 6 Roadrunner Project Area. Furthermore, Indian Wells represents and covenants that it has not and will not incur any obligation for which Tax Increment Revenues generated from the Roadrunner Project Area are pledged which is superior to the obligation created under Section 2 .06. Section 2 . 08 . Consolidated Convention and visitors' Bureau. Indian Wells agrees to affirmatively participate with Palm Springs and other cities in the Coachella Valley in the adoption and implementation of a consolidated convention and visitors ' bureau. Section 2 . 09 . Overlap of Whitewater Project Area and Roadrunner Project Area. Upon final settlement of all challenges to the validity of the Roadrunner Project Area and Roadrunner Redevelopment Plan and all proceedings incident thereto, Indian Wells shall forthwith undertake and diligently process to completion the detachment of any territory within the Whitewater Project Area which may overlap the Roadrunner Project Area. Section 2. 10. Amendments to Roadrunner Project Area; Notices. Indian Wells agrees to provide Palm Springs with all notices under the California Environmental Quality Act in connection with any amendment to the Roadrunner Redevelopment Plan regardless of whether such notices are required by law. Furthermore, Indian Wells agrees to provide Palm Springs with written notice of any public hearing on any amendment to the Roadrunner Redevelopment Plan not less than sixty (60) days prior to such public hearing. 7 Section 2.11. Release of All Claims. Each party releases, waives and forever discharges the other party from any and all claims raised in the Complaint, or which could have been raised in the Complaint. Further, each party waives any and all rights it may have under Section 1542 of the Civil Code, which reads 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. " Each party agrees to bring no other action, claim and/or proceeding, or to appear in such action, claim or proceeding based on the issues in the Complaint which were raised, or could have been raised, and/or which has the purpose, or will have the effect, of preventing or delaying the implementation of the Roadrunner Project Area, or the use of Tax Increment Revenue therefrom for any of the purposes described in this Agreement. Notwithstanding the foregoing, nothing contained herein shall prevent either party from bringing an action to enforce the provisions of this Agreement. Section 2 .12 . Court Approval. Immediately upon execution of this Agreement, the parties shall jointly request entry of a stipulated judgment in substantially the form set forth in Exhibit "A" . III. MISCELLANEOUS Section 3 . 01. Other Documents. Each of the parties to this Agreement agrees to execute such other and further documents as 8 may be reasonably necessary to carry out the terms of this Agreement. Section 3 . 02 . Prevailing Party: Attorneys Fees. If any action or claim is brought by a party to this Agreement against any other party, the prevailing defense to which is any provision of this Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit all attorneys' fees and other costs actually incurred in connection with such action, claim and/or any appeal therefrom, without regard to any otherwise applicable court schedules employed for the determination thereof, and, in the case of attorneys' fees, whether or not such action or claim proceeds to judgment. Section 3 . 03 . Entire Agreement. This Agreement contains the entire agreement between the parties. The terms of this agreement are contractual and not mere recitals. This Agreement is executed without reliance upon representations not stated in this Agreement and the undersigned have carefully read and understood the contents of this Agreement and sign the same as their own free act. Section 3 . 04 . Settlement of Disputed Claims. It is understood and agreed by the parties that this Agreement is made in settlement of disputed claims and shall not be construed as an admission, by any of the parties hereto, of any facts or conclusions alleged or stated in the Complaint, or which could have been alleged or stated. Section 3 . 05. Interpretation. This Agreement shall not be construed against the party preparing it, but shall be construed 9 as if all parties jointly prepared the Agreement. Any uncertainty or ambiguity alleged shall not be construed against any one party. Section 3 . 06. Modifications. All modifications to this Agreement must be in writing and signed by each of the parties. Section 3 .07. Execution in Counterparts. This Agreement may be signed in counterparts, and execution of such counterparts by each of the parties shall have the same force and effect as if all parties had signed the same original Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. CITY OF PALM SPRINGS By: ma(yati ATTEST: c� `� Imo'/ City Clerk (SEAL) CITY OF INDIAN WELLS By: Mayor ATTEST: r City Clerk (SEAL) 10 REDEVELOPMENT AGENCY OF THE CITY OF INDIAN WELLS By: Chairman ATTEST: secretary (SEAL) RICHARD R. 'OLfPHANIP WILLIAM ARENSTEIN S AUGHT DUN C. BRISCOE PHILIP MANUELL -- 11