Loading...
HomeMy WebLinkAboutA4356 - COLLAS ENTERPRISES SETTLEMENT AGR MO6833 Collas Enterprises Settlement Agreement AGREEMENT #4356 M06833, 4-4-01 SETTLEMENT AGREEMENT & GENERAL RELEASE OF ALL CCA- MS This Settlement Agreement and General Release of All Claims (the "Agreement") is entered into by and between the CITY OF PALM SPRINGS, a charter city & municipal corporation ("THE CITY"), and COLLAS ENTERPRISES, INC., a California corporation ("COLLAS"), and is intended by the parties hereto to settle fully and finally all differences between them arising out of, or related to, the Lease defined hereinafter. RECITALS WHEREAS, City and COLLAS entered into that certain Lease dated February 16, 2000, whereby THE CITY leased to COLLAS the premises known as The Palm Springs Tennis Center ("Center"), located at 1300 E. Baristo Road, Palm Springs, California, for an initial term of six (6) years beginning February 16, 2000, with two (2) two (2)-year options to extend the Lease. A true and correct copy of the Lease is attached hereto as Exhibit "A" and incorporated herein by this reference; and WHEREAS, Section 3.0 and Exhibits "F" and "G" of the Lease require COLLAS to make certain payments to THE CITY for monthly rental and fifty percent (50%) of the water and landscape maintenance costs in connection with COLLAS' use of the Center; and WHEREAS, Section 5.0 and Exhibit "G" of the Lease require COLLAS to be responsible for maintenance of the Center, including, but not limited to, restrooms and building interior, repairs and replacement of site fixtures, but excluding maintenance of the roof, HVAC, and the basic structure of the Center and tennis court slabs as existing at the time of execution of the Lease; and WHEREAS, COLLAS terminated the Lease effective March 1, 2001; and WHEREAS, COLLAS failed to make certain payments to THE CITY, totaling a balance of Four Thousand One Hundred Forty Dollars ($4,140) ("Balance") for monthly rental and landscape maintenance costs as required by Section 3.0 and Exhibits "F" and "G" of the Lease. A true and correct breakdown of the costs comprising the Balance due to THE CITY is set forth as Exhibit`B" attached hereto and incorporated herein by this reference; and WHEREAS, City and COLLAS desire to enter into this Settlement Agreement and General Release of All Claims ("Agreement") to settle their disputes regarding COLLAS' obligations to pay the Balance and to avoid the costs, disruption, inconvenience and uncertainty of litigation to enforce the terms of the Lease and any other disputes which may exist between the parties; and WHEREAS, COLLAS hereby acknowledges that the above recitals are true and correct, and admits and waives any right to challenge its obligations as set forth in this Agreement in the event any litigation arises regarding the subject matter of this Agreement. INITIALS: iav e i 0340 v i -1- AA�aSpnngs Collas 1A3 NOW, THEREFORE, for full and valuable consideration,the receipt and adequacy of which are hereby acknowledge, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein,the Parties hereto agree as follows: 1. Settlement Payment. Following the execution of this Agreement by COLLAS, as well as receipt of this Agreement by THE CITY's counsel, COLLAS shall pay THE CITY the total sum of Three Thousand Sixty Dollars ($3,060) ("Settlement Amount") in the form of the following movable and trade fixtures purchased by COLLAS during the term of the lease: 9 nets at $150 each ($1,350); 9 tidi courts at $25 each ($225); 9 center straps at $5 each ($45); 2 dry rollers at $120 each ($240); and carpet ($1,200); for a total value of$3,060. This surrender of fixtures specified above (the "Fixtures") shall be full consideration and settlement of all claims by THE CITY. Said surrender of the Fixtures constitute a full and complete settlement and compromise of the Lease and of all disputed claims arising out of or related to the Lease. 2. City's Execution. THE CITY shall execute this Agreement within fifteen (15) days of the surrender by COLLAS of the Fixtures. Upon surrender THE CITY shall provide COLLAS with an invoice evidencing receipt of the Fixtures. 3. General Release. In consideration for this Agreement, THE CITY and COLLAS hereby release and forever discharge each other from any and all claims, demands, causes of action, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which all or any of them ever had, now have, or may claim to have as of the date of this Agreement against each other (whether directly or indirectly), by reason of any act or omission concerning any matter, cause or thing, or claims asserted or which could have been asserted due to the Lease. 4. Discovery of Different or Additional Facts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe 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 3 of this Agreement, and they expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 5. Release of Unknown Claims. The Release set forth above in Paragraph 3 of this Agreement is a general 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 Parties may have against each other as a result of the Lease, except for any claims which may arise from the terms of this Agreement. 6. Waiver of Civil Code Section 1542. Further, all Parties expressly agree to waive and relinquish all rights and benefits they may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: INITIALS: IRV H10340 v1 -2- PaI9 Springs Collas " §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." 7. Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of potentially 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 any affiliated person(s) or entity/ies. 8. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 9. 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. 10. 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. 11. 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. 12. 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. 13. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 14. 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. INITIALS: nav niwao vi �, -3- Palm Springs Collas i • 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. [SIGNATURES FOLLOW ON PAGE 5 INITIALS: IRV 910740 vI -4- Palm Springs Collas IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and General Release of Claims, and have initialed each page hereof, on the dates set forth below. Dated: 12001 COLLAS ENTERPRIS S, f/ By: / for Col s Enterprises, Inc. Dated: �� 2001 CITY OF PALM SPRINGS, a charter city and municipal corporation 7 �� o�/o . David H. Ready City Manager, CITY O PALM SPRINGS ATTEST: J City Clerk, CITY OF PALM SPRINGS APPROVED AS TO FORM: Dated: / , 2001 BURKE WILLIAMS & SORENSEN, LLP By: �— D . Aleshire Attorneys for CITY OF PALM SPRINGS RV r,iosa0