Loading...
HomeMy WebLinkAboutA4369 - GARDEN SPRINGS SETTLEMENT AGR MO6860 Garden Springs Settlement Agr AGREEMENT #4369 M06860, 6-13-01 SETTLEMENT AGREEMENT AND MUTUAL RELEk� - -- THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter this "Agreement") is entered into this day of June, 2001, by and between Garden Springs Apartments, a California limited partnership, CEM-98, LLC a California limited liability company, Oakridge Development Company, Inc . , doing business as CBM Construction Services, Inc . , a California corporation, and CBM Group, Inc . , a California corporation (hereinafter collectively referred to as "Plaintiffs") and the City of Palm Springs, a municipal corporation and the City Council of the City of Palm Springs (hereinafter collectively referred to as "Defendants") . In consideration of the promises made herein, the parties do agree as follows : RECITALS WHEREAS, a lawsuit has been filed by Plaintiffs in the Superior Court of the State of California, County of Riverside, Desert District, Case No. INC 021292 against Defendants ("the Litigation") ; and WHEREAS, Defendants and Plaintiffs wish to dismiss and settle all claims relating to said Litigation, except to the extent of any and all obligations created by this Agreement . EPA\CBM\SETTLEMENT AGREEMENT2.061101 ]. C t� AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and releases contained herein, Plaintiffs and Defendants (collectively "the Parties") hereto agree as follows : 1 . Defendant, City Council of the City of Palm Springs, acting as the Redevelopment Agency of the City of Palm Springs ("RDA") pursuant to California Health & Safety Code Section 33200, shall approve, execute and enter into a disposition and development agreement ("DDA") with Plaintiffs, which DDA shall include the following provisions : (a) Plaintiff, Garden Springs Apartments ("GSA") is the owner of certain unimproved real property consisting of approximately 3 . 6 acres, plus or minus, located at the Southeast corner of Indian Canyon Drive and San Rafael Drive in the City of Palm Springs, California ("Property") . The DDA shall provide that the RDA shall purchase the Property from GSA for the total sum of Five Hundred Thousand Dollars ($500, 000 . 00) ("Purchase Price") , provided however that title to the Property must be conveyed to the RDA free and clear of any and all monetary encumbrances except a lien for taxes not yet due, and provided that the RDA shall have the right to approve the environmental condition of the Property as of the date that the RDA takes title thereto. The Purchase Price shall be paid to GSA and conveyance of the Property to the RDA shall occur as soon as possible after execution of this Agreement, EPH\CHM\SETTLEMENT AGREEMENT2.061101 2 in accordance with the Schedule of Performance attached to the DDA ("Schedule of Performance") . (b) On or about January 19, 2000, Defendant, City of Palm Springs, approved a planned development district for the Property which permitted the construction of a project ("Project") containing 60 residential rental units, of which 29 units would be rent restricted such that 25% (15 units) of the units would be affordable for households earning 45% or less than the median income for the area and 24% (14 units) of the units would be affordable for households earning 50% or less than the median income for the area. Plaintiffs agree to use their best efforts to pursue financing for the Project, including but not limited to seeking a Tax Credit Allocation from the California Tax Credit Allocation Committee. Defendants agree that they shall cooperate in good faith and use their best efforts to assist Plaintiffs in obtaining said Tax Credit Allocation and in seeking other forms of government assistance which may be available to the Project as the result of the affordability component of said Project. In seeking said forms of financial assistance to the Project, and in seeking any necessary equity financing for the Project, Defendants acknowledge and agree that Plaintiffs may and will rely upon the provisions of the DDA as they relate to the obligations of the City or the RDA to provide assistance to the Project . (c) In the event that Plaintiffs successfully obtain commitments for all required financing for the Project, including EPH\CHM\SETTLEMENT AGREEMENT3.OG1101 3 the Additional Contribution described in paragraph 1 (e) below, then upon Plaintiffs providing Defendant City of Palm Springs with written confirmation of said financing commitments, the DDA shall require that the RDA, shall contribute the Property to GSA or its designee, without compensation. Conveyance of the Property to GSA or its designee shall occur no later than the date specified in the Schedule of Performance, provided that all conditions to the conveyance under the DDA have been waived or satisfied. The conveyance of the Property shall include a right of reverter to be vested in the RDA, which right of reverter shall become operative if Plaintiffs or their designee, within the time specified in the Schedule of Performance, fail to initiate construction of the Project or initiate construction of the Project but fail to complete said construction . (d) Plaintiffs agree that in the event that the Project is constructed, it shall be constructed in strict conformity with the provisions of the DDA and the planned development district approved by the City on or about January 19, 2000 including but not limited to the architectural upgrades and other components of the Project approved pursuant to said planned development district, provided however, that Defendants agree that Plaintiffs shall not be required to underground utilities except those on Indian Canyon Drive abutting the Property such that the cost of said utility undergrounding shall not exceed the sum of $150, 000 . 00 . EPH\CEM\SETTLEMENT AGREEMENT2.061101 4 (e) In the event that (i) Plaintiffs are unable to obtain the required financing to proceed with the Project and, as a result, the Property is not conveyed to GSA, or (ii) if after conveyance of the Property to GSA, Plaintiffs for any other reason fail to proceed or complete the Project and, as a result, RDA exercises its right of reverter to reacquire the Property, Plaintiffs shall convey to Defendants, without compensation therefor, all Project plans and drawings within the possession and/or control of Plaintiffs, provided however, that such plans and drawings shall be conveyed to Defendants without warranties, either express or implied. (f) The DDA shall further provide that, in addition to the contribution of the Property, the RDA will contribute a cash sum of Five Hundred Thousand Dollars ($500, 000 . 00) to the Project ("Additional Contribution") . The Additional Contribution shall be paid to Plaintiffs or their designee in the form of five (5) payments of One Hundred Thousand Dollars ($100, 000 . 00) each, with the first of such payments to be paid to Plaintiffs or their designee when the Project is 20% complete, and each such succeeding payment to be made to Plaintiffs or their designee as each succeeding 20% of the Project is completed. Plaintiffs further agree that, in consideration for the RDA' s contribution of the Property and payment of the Additional Contribution, Plaintiffs shall enter into a regulatory agreement with the RDA which regulatory agreement shall be designed to preserve the EPH\CBM\SETTLEMENT AGREEMENT2.061101 5 affordability component of the Project as described in paragraph 1 (b) above and to assure that the units contained within the Project will be counted toward Defendants' low and moderate income housing goals . The terms included in paragraphs 1 (a) through 1 (f) shall be incorporated into the DDA; provided, however, that the final terms of the DDA shall be subject to modification under mutual agreement of the Parties . If there is any conflict between the terms of the DDA and paragraphs 1 (a) through 1 (£) above, the terms of the DDA shall control . 2 . In consideration of the conditions set forth above in Paragraph 1 above, Plaintiffs agree that within one (1) business day after the full execution of the DDA and this Agreement, Plaintiffs shall execute, file, and serve a Request for Dismissal of Action, with Prejudice, dismissing the Litigation in its entirety. 3 . It is the intention of the Parties, and each of them, that this Agreement shall constitute an absolute and unconditional release of each and every , claim, demand, liability, cost, obligation, right of action, and cause of action of every kind and nature whatsoever, whether now known or unknown, suspected or unsuspected, which any party has, or at any time prior to the date of this Agreement, may have had against each other relating or pertaining to, or connected in any way with the above-mentioned Litigation, and the subject matter thereof, or which could have EPH\CHM\SETTLEMENT AGREEMENT2.061101 6 been made in the Litigation, including but not limited to, any act or conduct alleged in the Litigation or which could have been alleged with respect to the underlying facts upon which the Litigation is based. It is the further intention of the Parties, and each of them, that this Agreement shall bind their attorneys, agents, servants, successors, heirs, executors, administrators, subsidiaries, affiliates, predecessors, and successors in interest, both partners and assigns, and any other person, firm, partnership, entity or corporation to whom each party herein is affiliated. 4 . Subject to the limitations identified herein, but in furtherance of the intentions of the Parties to this Agreement, the Parties, and each of them, with and under advice of counsel, hereby expressly waive any and all right and benefit conferred upon said Parties by the provisions of Civil Code § 1542, which provides as follows : "A general release does not extend to claims which a 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 . " 5 . Subject to the limitations identified herein, the Parties further expressly waive any and all rights and benefits conferred upon the Parties by any provision of any other state, federal or local statute, code, ordinance or law similar to Section 1542 of the Civil Code, and the Parties, and each of them, expressly consent that the releases contained herein shall be given full EPH\CBM\SETTLEMENT AGREEMENT2.061101 7 force and effect, according to the express terms and provisions of this Agreement, to unknown and unsuspected claims, demands and causes of action, if any, arising out of or relating to the above- described released matters . 6 . The settlement of this matter is not an admission of liability and/or guilt with respect to the matters raised in the Litigation, but merely is a compromise and settlement of the disputes now existing between the Parties . 7 . The Parties agree that each party to this Agreement shall bear their own costs and attorney' s fees incurred in resolving this dispute, including but not limited to any attorneys' fees incurred in drafting, negotiating and approving the DDA. 8 . Each of the Parties expressly warrants and represents that they have not assigned any right, title, or interest in or to any claim or cause of action related to or arising out of the Litigation or the subject matter thereof. 9 . This Agreement supersedes all prior oral and/or written agreements and negotiations, and constitutes the complete understanding and agreement between the Parties hereto. 10 . This Agreement may not be modified o-- changed except by a writing executed by the Parties hereto. 11 . All Parties to this Agreement warrant that they have carefully read this Agreement in its entirety and have not relied on any oral promises or agreements not specified herein. EPH\CBM\SETTLEMENT AGREEMENT2.061101 8 JUN.19.2001 11:00AM CBM MANAGEMENT GROUP NO.183 P.2 acnn :fbU31UUf Jean 12� 15.50 P. 10 12. All Parties to this Agreement warrant that they have been fully represented by counsel and said counsel has fully explained the nature and legal effect of this Agreement. 13, This Agreemont may be executed in counterparts. Upon execution of this Agreement by the signing party, such shall be deemed to be effective as against that party, assuming all other Parties also sign the Agreement and deliver an executed copy to the r respective party. This Agreement shall be interpreted under the 1AWs of the State of California. This Agreement shall be deemed to have been drafted by both Parties, and no presumption shall exist in favor of either party should a dispute arise under this Agreement by reason of a claim that either party drafted tho Agreement. 14 . In any action for failure to perform any of the obligations set forth in this Agreement, the prevailing party shall be entitled to recover their actual attorneys ' fees and costs incurred in such action, GARDEN SPRINGS A1PARTMTNT5, a California limited partnersh p Dated: June 12 F 2001• By.. Edward Mackay, General Far es CHM-98, LLC, a California limited liability company Dated: June ��^, 200i k1@mbex Pznald D. Bnttm=urt fsignaturQ paQQ �antirtua�o.d SA81C�aasax.�rgtsNT NaxeeoasNxl.Vsiioi � . 'TUN. 13.2001 11:00AM CBM MANAGEMENT GROUP NO.1e3 P.3 atnxc x"7503209507 Jun 12 15:50 P. 11 [Signature page continued. ] dakridge construction Servio", Inc. , a California corporation Dated: dune _i� , 2001 Vice President RQnald D. BettMCO=t Cnm GYBup, Inc, , a California corporation Dated: June 12 , 2001 By;Ronald D.D. Bettencourt, Vice Pxts�dent dated: yr rC lf� , 2001 CITY OF PALM SPRINGS By, vlllka-"4�4 Will Kleindienst - Mayor TES .' rY CLERK AP_�OVED AS TO FORM a BURKE, WILLIAMS a SORENSE1j, LLB PIPCi�G1l�LL' 0 '711112 av3�0_ _ Attoxneys for Detendants SELZER, EALY, HEMPHILL & SLASDEL, 41,P Emil Perri Hemphill l Attorn Xrafox Plair3t3ii's 8PtlI�Nlsarremrerxr ^""•-x_asiaa2 ZO