HomeMy WebLinkAboutA3876 - SUNS BASEBALL CLUB SETTLEMENT MO 6052 ATTORNEY AT L-RW 31 @`.�3 P.S. Suns Professional
OCT-29-97 WED 20 :21 C H HACK • Baseball Club, Inc.
• Settlement Agr - Pay of Costs
AGREEMENT #3876
M06052, 11-19-97
SEWLMIELYT AGREEMENT FOR PAYMLN'r OF
COSTS MMER LICMSE AGR>;EN11 NT
This SETTLEMENT AGREEMENT FOR PAYMENT COSTS UNDER LICENSE
AGRBMMENT (the "Agreement') is made and entered into this 92 %day of October, 1997,
by and between the CITY OF PALM SPRINGS,a California municipal corporation (the"City"),
and PALM SPRINGS SUNS PROFESSIONAL BASEBALL CLUB, INC., a California
corporation ('Suns").
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1. City and the Suns entered into that certain License Agreement elated Ame 15,
1994, whemby City granted the Suns a nonexclusive license to use portions of the Palm Springs
Stadium located at 1901 East Baristo, Palm Springs, California ("Stadium") subject to certain
terms and conditions therein (the "license Agreement"). A true and correct copy of the License
Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference.
2. City and the Suns anrcaded certain provisions of Section 2 of the License
Agreement by entering into that certain First Amendment to License Agreement dated March
20, 1996 ("Amendrnent"). A true and correct copy of the Amendment is attached hereto as
&hibit 'B" and incorporated herein by this reference.
3. Section 2 of the License Agreement and Amendment require the Suns to make
certain payments for fixed rent, electrical costs, food and beverage concessions, past due
concession amounts, and interest in connection with the Suns' use of the Stadium for all Home
Games,
4, The Suns terminated the License Agteenrent and vacated the Stadium on or about
September 10, 1996.
5, The Suns failed to make cerizin payments to City totalling a balance of twenty
eight thousand five hundred and fifty dollars (V9,550,00) (the "Balance") for ftxcd rent,
electrical costs, food and beverage concessions, past due concession amounts, and interest for
the 1995 and 1996 bascbali season, as required by Section 2 of the License Agreement and
Amendment. A true and correct breakdown of the costs comprising the Balaiiec due to the City
is set forth at Exhibit "C" attached hereto and incorporated herein by this reference.
6. City and the Suns desire to enter into this Agmrntnt to settle their disputes
regarding the Suns' obligation to pay the Balance and avoid litigation to enforce the terms of the
License Agreement and Amendment.
7. The Suns hereby acknowledge that the above recitals are true and correct, and
admit and waive any right to challenge their obligations, as set forth in this Agreement, in the
event any litigation arises regarding the subject matter of this Agreement.
62110144> -t 0113114971A aLLY2Et97
OCT-29-97 WED 20 :22 C H HACK ATTORNEY AT LAW 3109371410
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Based on the foregoing rucitals, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. ,SINS' OBLI TIOA'S.
1.1 The Suns agree to pay City a total of twenty two thousand dollars ($22,000.00)
("Settlement Amount') to settle their obligation to pay the Balance due under the License
Agreement and Amendment. The Suns agree to pay such Settlement Amount in the manner
described at each point immediately below:
• Fifteen thousand dollars ($15,000.00)by cashier's check to the City on or before
October 28, 1997,
• Six hundred and thirty six dollars and thirty six cents ($636.36)per month for ten
(10) consecutive months beginning November 28, 1997, and following each
month thereafter to be paid before the twenty eighth (28th) day of each month,
and
• Six hundred and thirty six dollars and thirty seven cents ($636.37) on or before
September 28, 1998.
1.2 The Suns desire to informally settle their obligation to pay the entire Balance plus
the City's expenses and legal fees and costs incurred in collecting the Balance on the terms set
forth in this Agreement.
SECTION 2. QTY15 QgLIGATfo-115,
2.1 In consideration of the Suns' agreement to informally settle their obligation to pay
the entire Balance, City has agreed to forebear and postpone the prosecution of all claims and
causes of action against the Suns for payment of the Balance while the Suns are performing
pursuant to the ternis of this Agreement.
2.2 City agrees that after execution of this Agreement its employees or officials will
refrain from making any comments to any persons or entities regarding the Suns' refusal to pay
the Balance.
2.3 Upon the payment of the last installment of the Settlement Amount by the Suns
to City, City shall excuse any further obligation of the Suns under the License Agreement and
Amendment. At such time and upon the Suns' request, City shall further furnish the Suns with
an invoice statement showing all past due amounts paid in full.
2.4 City will forebear its entitlement to accrued interest on the Balance in
consideration for the full and satisfactory perfonnance by the Suns of the terms of this
Agreement. The City reserves the right to seek all accrued interest upon the Suns' breach of
this Agreement as defined at Section 3 below, plus any other rights of City under the license
Agreement and Amendment.
OCT-29-97 WED 20 :23 C H HACK ATTORNEY AT LAW 3109371410 P. 04
SECTION 3. BF FAULT AN R Nj PIES.
3.1 If the Suns neglect, refuse, or fail to make any installment within the time periods
required at Section 1, pay the entire remaining Settlement Amou,tt by September 28, 1998, or
otherwise satisfactorily perform any of the provisions of this Agreement, the Suns shall be�in
default.
3.2 In the event of a default and after written notice by City of the default and the
Suns' failure to completely cure the default within fifteen(15) days of the date of such notice,
City may pursue the following remedies;
a. Collection of the Balance, with any offsets for payments made of the
Settlement Amount.
b. CoIlection of interest,accrued on the entire Balance pursuant to Section 2.6
of the License Agreement.
C. C011ectiotl of City's attorneys fees incurred in all of City's attempts to
collect the Balance.
d. Any other rights or privileges granted to City under the License Agreement
and Amendment.
e. The foregoing provisions of this Section 3 are not exclusive but are
cumulative and in addition to all other rights and remedies available under the law and the
exercise of one or more rights and remedies shall not preclude the exercise, at the same or
different times, of any other rights or remedies for the same default or any other default.
SECTION 4. 14f1S .ELLAAT,(�iT�.
4.1 Comet Nance With Laws. All actions taken pursuant to this Agreement shall be
provided in accordance with all federal, state, and local laws, ordinances and regulations
including, without linutatior,, all applicable Palm Springs Municipal Code provisions.
Furthermore, each and every provision required by law to be inserted into this Agreement shall
be deemed to be inserted, and this Agreement shall be read and enforced as though they were
included.
4.2 Attorn+<rys' Fees, if any party to this Agr .ment is required to initiate or defend
any action to enforce the provisions of or remedy the breach of this Agreement, the prevailing
party in such action or proceeding, in addition to any other relief which may be granted, shall
be entitled to recover its reasonable attorneys' fees, both at trial and on any appeal alid in any
administrative proceeding. Attorneys' fees shall include reasonable costs for investigating such
action, conducting discovery, and all other necessary costs the court allows which are incurred
in such litigation. All such fees shall be deemed to have accrued on commencement of such
action and shall be enforceable whether or not such action is prosecuted to completion.
4.3 Waiver. No delay or omission in the exercise of any right or rertedy by a
nondefaulting party shall impair such right or remedy or be construed as a waiver. The consent
or waiver of one act or omission shall not be deemed to constitute a consent or waiver of any
subsequent act or omission. Any waiver by any party of any default must be in writing.
4.4 In ggration• Amendment. This Agreement contains all of the agreements of the -
pailies and cannot be modified, terminated or rescinded, in whole or in part, except by an
instrument in writing signed by all parties hereto. No prior oral or written understanding shall
be of any force with respect to those matters covered in this Agreernuit.
OCT-29-97 WED 20 :24 C H HACK ATTORNEY AT LAW 3109371410 F- 0s
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4.5 Notice. Any notice to be given under this Agreement shall be in writing and
given by personal delivery or by depositing the same in the United States Mail, certified or
registered, postage prepaid, to the addresses set forth below, or to such other address as a party
may designate from time to time:
City: City of Palm Springs
Attention: Nick Singer
3200 IS. Tahquitz Canyon Way
Palm (Springs, California 92263
With a Copy to: David J. Aleshire, Esq.
Rutan & Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Suns: Palm Springs Sans Professional Baseball Team
c/o Charles H. Hack, Esq.
21250 Hawthorne Boulevard
Suite 500
Torrance, California 90503
Notices personally delivered shall be effective upon delivery. Notices delivered by mail,
as provided above, shall be effective forty-eight (48) hours after deposit in the mail. if the
effective date falls on a holiday or weekend, the effective date shall be the next business day
following such holiday or weekend.
4.6 rm. This Agmement shall continue in full force and effect until the last
installment of the Settlement Amount is paid to the City.
4.7 I tt� etation and Enforcement- Governing 1,aw. This Agreement shall be
construed and interpreted both as to validity and performance of theparties in accordance with
the laws of the State of California. Legal actions concerning any dispute, claim, or matter
arising out of or in relation to this Agreement shall be instituted and maintained in the Superior
Court of the County of Orange, State of California, or in any other appropriate court with
jurisdiction in such county, and the Suns agree to submit to the personal jurisdiction of such
court.
4.8 SeveraLility. If any term, provision, covenant, or condition of this Agreement
is held by a court of competent jurisdiction to be invalid,void, or unenforceable, the remaining
provisions of the Agreement shall continue in full force and effect, unless and to the extent that
the rights and obligations of any party would be materially altered or abridged by such
interpretation.
4.9 Corgpxate Authority. The person executing this Agreement on behalf of the Suns
warrants that such person has been duly authorized to execute and deliver this Agreement on
behalf of the Suns, by so executing this Agreement, such party is formally bound to the
provisions of this Agreement, and the provisions of this Agreement do not violate any provision
of any other agreement to which such party is bound.
W WITNESS Wklmsov, the partijt3 hereto hove duly eaecutod this Agratnent as of
16 day sod year Ant written above. '
"SUNS"
PALM SPRINGS SUNS PROFESSIONAL
BASEBALL CLUB, INC,
I California Corporation
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bON DICARI 4
Al*rBST= •CITY.
CITY OF PALM SPKINUS,
s Califomia municipal corporation
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Cit�j- erk t y anager for the City of Palm Sprints
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