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HomeMy WebLinkAboutA3367 - RALPHS PLAZA DEL SOL RELEASE AGR MO5443 Ralphs Grocery Store Amend to Compromise Settle- ment & Mutual Release Agr. AGREEMENT #3367 M05443, 9-28-94 AMENDMENT TO COMPROMISE SETTLEMENT, AND MUTUAL RELEASE AGREEMENT This Amendment to that certain Compromise Settlement and Mutual Release Agreement dated March 17, 1994, is entered into on August 12 , 1994, between RALPHS GROCERY COMPANY (Ralphs) ; CITY OF PALM SPRINGS (City) ; BILL HUDAK; and DOUGLAS R. EVANS . The parties hereby agree to amend the above referenced Compromise Settlement and Mutual Release Agreement as follows: 1. Paragraph 1(a) of the Agreement is amended to delete the following words from Exhibit "A" : "used or consignment merchandise (other than anti(Tues) in connection with at least 50% new merchandise"; 2 . Paragraph l(a) is amended to add the following words to Exhibit "A" : "consignment merchandise sales as an accessory use (as defined in Section 9100 . 10 A.5 of the City of Palm Springs Zoning Ordinance) to the above listed permitted uses" . 3 . The Amended Exhibit "A" is attached to and incorporated in this Amendment. 4 . Subsection (h) is added to Paragraph 1 of the Agreement to read as follows: (h) The following uses are prohibited in Building "F" (the former Ralphs Grocery Store) of Plaza del Sol: Specialty market Place and Indoor Swap Meet, as defined in the City of Palm Springs Zoning Ordinance. 5 . Ralphs shall file a dismissal with prejudice of Case No. I-68361 within five business days after this Amendment is signed by all parties . Except as specifically amended by this Amendment, all terms and provisions of the Compromise settlement and Mutual release Agreement dated March 17, 1994 , remain in full force and effect. DATED: DCA ' 13 , 1994 RALPHS GRO ERY COMPANY B (typed nam signatures continue... ralphs.amd:ts-8/94 Page 1 ORIGINAL 230 DATED: 1994 CITY PALM SP ATTEST: � � i By: I,�City Clerk ---_City Manan p � (typeed name) DATED: 1994 T y� 2y� BILL HUDAK DATED: �r 1994 DOUGLAS EVANS APPROVED BY THE CITY COUNCIL BY [40 7�/C/3, �-}1� i ralphe.amd:te-8/94 Page 2 USES TO BE PERMITTED UNDER AMENDMENT TO P.D.D. 131: ( for Ralphs Grocery Company subleasehold interest only) Antique shop; art gallery, school or studio; athletic or health club; retail bakery(1); bank and/or savings and loan; clothing/apparel store; department store; beauty or barber shop(1) or school; retail stores (including, but not limited to, book/stationery store, furniture store, drug store, florist, shoes) ; music studio, shop or instrument sales; photography studio('); museum; modeling studio; dance studio; restaurant; movie or stage theater and/or production facilities ; library; retail store or service shop; professional or service offices; recreational facilities (i.e. , bowling alley, amusement center) ; training facilities; supermarket; craft or hobby store; hardware/appliance store; jewelry store; toy store; church or synagogue(with a conditional use permit) ; private club; pet store; consignment merchandise sales as an accessory use (as defined in Section 9100 . 10 A. 5 of the City of Palm Springs Zoning Ordinance) to the above listed permitted uses. EXHIBIT "A" (1) not to be considered as an anchor 982(a)(5) Name,Addresi and Telephone Ns iorney(s) Space S se o1 Court Clerk Only LAW OFFICE OF CYNTHIA AIGSEN CSB 80340 398 W. 4th ST. Post Office Box 409 San Bernardino, CA 92402-0409 (909) 885-6820 Attorney(s) for . Plaintiffs SUPERIOR RIVERSIDE . . . . I . . . . . . . . . . . . . . .COURT OF CALIFORNIA, COUNTY OF. . . . . . . . . . . . . . . . . . . . (SUPERIOR, MUNICIPAL,or JUSTICE) . . . . . . . . . . . . . . . . . . . . . .INDIO, BRANCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Name of Municipal or Justice court District or of branch court,if any) Plaintiff(s): RALPHS GROCERY COMPANY, a CASE NUMBER I-68361 Delaware Corporation, et al, REQUEST FOR DISMISSAL TYPE OF ACTION Defendanl(s):CITY OF PALM SPRINGS, a ❑ Personal Injury, Property Damage and Wrongful Death: California municipal corporation„ et ❑ Motor Vehicle ❑ Other al. ❑ Domestic Relations ❑ Eminent Domain ® Other: (Specify) PetitA QU..f.Qr.Writ..Qf.... (Abbreviated Title) Mandate TO THE CLERK: Please dismiss this action as follows: (Check applicable boxes.) 1. ® With prejudice ❑ Without prejudice 2. 2 Entire action ❑ Complaint only ❑ Petition only ❑ Cross-complaint only ❑ Other: (Specify)' Dated: ..Oct.C1her .I.U..,...19.9.4... ............. r 'If dismissal requested is of specified parties only, of specified Attorney( orRAIXH$„MCBRY..CQM RY......... causes of action only or of specified cross-complaints only, so state and identify the parties, causes of action or cross-complaints CYNTHIA LUDVIGSEN to be dismissed. (Type or print attorney(s) name(s)) TO THE CLERK: Consent to the above dismissal is hereby given.— Dated: .......... ........................ ... ......... "When a cross-complaint(or Response (Marriage)seeking affirma- Attorney(s) for.... . ........................................ tive relief) is on file, the attorneys) for the cross-complainant (respondenlj must sign this consent when required by CCP 581(1), (2) or (5). (Type or print attorney(s) name(s)) (To be completed by clerk) ❑ Dismissal entered as requested on .. .. . ....................... ... ..... ......................................... ❑ Dismissal entered on .... ......... .... .. ...... ....... .....as to only ..... ............................................ O Dismissal not entered as requested for the following reason(s), and attorney(s) notified on ....... ........................... .Clerk Dated ... ..... .................. ... . . . .. .. ..... . By ,Deputy Form Adopted by Rule 982 of CCP 581,etc.; The Judicial Council of California REQUEST FOR DISMISSAL - Cal. of Court, Revised Effective July 1, 1972 �� '- Rule 1233�� -- �r Ralphs Grocery Company Settlement & Mutual Release AGREEMENT #3367 M05344, 4-6-94 COMPROMISE SETTLEMENT AND MUTUAL RELEASE AGREEMENT THIS AGREEMENT made this � day of 1994, by and between RALPHS GROCERY COMPANY, hereinafter referred to as "Petitioner" , and CITY OF PALM SPRINGS, a California municipal corporation, BILL HUDAK, an individual, and DOUGLAS R. EVANS, an individual, hereinafter referred to as "Respondents" , is a Compromise Settlement and Mutual Release whereby the above-mentioned parties hereby extinguish their mutual rights and claims arising from their dispute and differences as to the subject matter in the action filed in the Superior Court of the State of California, Riverside County, Indio Branch, in Case No. I-68361, hereinafter referred to as "said dispute" . NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: 1. (a) Respondent City's planning department staff will prepare and submit to the Planning Commission and City Council an application to amend Planned Development District No. 131 (P.D.D. 131) , which will amend the permitted uses for Building F of Plaza del Sol (the former Ralphs Grocery Store) in that P.D.D. to include all uses listed on Exhibit "A" attached to and incorporated in this Agreement. (b) City's staff will file the application within 30 days of the execution of this Agreement and will diligently process it and exercise good faith efforts to cause the City Council to act upon the amendment within 90 days of the date of this Agreement. (c) In addition, City staff will support and recommend approval of the amendment to the Planning Commission and to the City Council. (d) Petitioner shall pay to City $300 . 00 for processing the amendment. (e) No conditions of approval to the amendment shall be required or recommended by staff. ra13.rel:ts-3/94 Page 1 ORIGINAL (f) City will obtain all required consents for the amendment from Petitioner's lessor and from any other party from whom consent is required and/or shall hold Petitioner free from any requirements for such consent:. (g) Petitioner shall exercise good faith efforts to lease the former Ralphs Grocery store to a single tenant for a use listed in Exhibit "A" . Should Petitioner be unable to lease the site to a single tenant, Petitioner may divide the premises for lease into not more than four premises to be used for uses listed in Exhibit "A" . 2 . The trial date I-or the action entitled Ralphs Grocery Company, a Delaware Corporation; and Shoppers ' Outlet Bazaars Inc . a California Corporation, :Petitioners vs . City of Palm Springs, a California Municipal Corporation, Bill Hudak, an individual, Douglas Evans , an individual, et al. , Respondents, bearing Riverside Superior Court Case No. I-68361, shall be continued by stipulation of the parties until July 7, 1994 . Upon approval of the amendment described in paragraph 1 above, as applied for and without conditions, by the City Council, and upon expiration of any period before which it becomes effective, Petitioner shall dismiss said action in its entirety, and with prejudice. 3 . Upon filing of the dismissal described in Paragraph 2 above, each of the parties to this Agreement, on behalf of themselves, their descendants, ancestors, heirs, dependents, executors, administrators, assigns, agents, servants, stockholders, employees, representatives,, attorneys and successors RELEASE AND DISCHARGE the others and their descendants, ancestors, heirs, dependents, executors, administrators, assigns, agents, servants, stockholders, employees, representatives attorneys and successors from all rights, claims and actions which each party and his or her above-mentioned successors now have against the other party and his or her above-mentioned successors, stemming from their differences and rights arising from said dispute. The parties agree and recognize that this Agreement fully and finally settles and resolves all disputes, actions and claims which they have, may have or have had or may have had against the others related to or arising from the City's refusal to issue building permits to Petitioner Ralphs proposed tenant, Shoppers ' Outlet Bazaars, Inc . 4 . This settlement is a compromise of the above-mentioned disputed claim and shall never be treated as an admission of liability by any party for any purpose. 5 . The parties expressly warrant, represent and agree that: ra13.rel:ts-3/94 Page 2 (a) They have received independent legal advice from their attorneys; (b) The parties are not relying upon any representation or statement by or on behalf of any of the persons or entities released with respect to any aspect of this Agreement; (c) The parties assume the risk of mistake of fact with regard to any aspect of this Agreement; and (d) The parties specifically represent and warrant to the persons released that neither they nor any director, officer, employee, servant, agent, representative, attorney, parent subsidiary or affiliate, or any other person or entity under the management or control of the parties hereto, have filed or will file any claim, lien, arbitration or lawsuit of any kind against the parties or their agents, their representatives, or their property hereto or against any of the persons released in a foreign, federal, state or local tribunal of any kind, or administrative body for any act or omission occurring prior to the date of this Agreement involving said dispute and the facts thereto, except as to the action previously filed and presently entitled Case No. I-68361, which will be dismissed with prejudice. 6 . This Agreement contains all of the representations and the entire understanding between the parties hereto with respect to the subject matter hereof and said dispute. No party hereto is relying upon any representations, warranty, agreement or covenant not set forth herein. The parties hereto expressly understand, acknowledge and agree that time is of the essence of this agreement. 7 . The parties expressly understand, acknowledge and agree, except as otherwise expressly set forth in this Agreement, to bear their own costs and expenses, to date, including attorney's fees, incurred in prosecuting and/or defending the action(s) herewith being dismissed, and in resolving their disputes therein, and in preparing and negotiating the settlement and this Agreement. B . The parties expressly understand, acknowledge and agree that, each of the parties hereto have contributed to the drafting of the Agreement, and no provision hereof shall be construed against any party hereto, as being the draftsperson thereof. This Agreement shall therefore be construed without regard to any presumption or ra13.rel:ts-3/94 Page 3 other rule requiring construction against the party causing this Agreement to be drafted. 9 . If any words or phrases in this Agreement shall have been stricken out or otherwise eliminated, whether or not any other words or phrases have been added, this Agreement shall be construed as if the words or phrases, so stricken out or otherwise eliminated were never included in this Agreement and no implication or inference shall be drawn from the fact that said words or phrases were so stricken out or otherwise eliminated. 10 . All terms and words used in this Agreement, regardless of the number or gender in which they are used, shall be deemed to include any other number or any other gender as the context may require. 11. The parties hereto expressly understand, acknowledge and agree, that this Agreement may be modified or rescinded only by a writing signed by the parties hereto or their duly authorized agents . 12 . No claim arising out of a breach of this Agreement can be discharged in full, or in part, by a waiver or renunciation of the claim or right, unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Moreover, the failure of a party to this Agreement to exercise any right or remedy provided by this Agreement, or by law, shall not be a waiver of any obligation or right of the parties, or any similar defaults, nor shall it constitute a modification of this Agreement. 13. The parties hereto hereby acknowledge and agree that any and all of the facts and circumstances relevant to the releases contained herein and to this Agreement, may be other than or different from the facts or beliefs now known or believed by the parties hereto, and that nevertheless, the releases, promises and covenants made herein shall. be binding and effective. 14 . This Agreement will inure to the benefit of the heirs, legal representatives, assignees, licensees, successors, and transferees of the parties hereto, and each of them, whether by license, sales, merger, reverse merger, sale of stock or assets, operation of law, without limit, or otherwise. 15 . This release shall be interpreted and governed by the laws of the State of California and of the United States of America. 16 . In the event that any dispute between the parties hereto regarding this agreement and the rights thereto shall result in ra13.rel:ts-3/94 Page 4 litigation, the prevailing party shall be reimbursed for all reasonable costs, including, but not limited to reasonable attorney's fees . 17 . The parties expressly understand, acknowledge and agree that this Agreement may be signed in one or more counterparts, each of which shall be deemed an original but all of which together, shall constitute one and the same Agreement. 18. In order to further the interests of the parties in this agreement, each party hereto fully warrants that it has the power to settle and release fully and completely all claims, causes of action, demands, charges and liabilities against the others hereto arising out of or relating to said dispute, and that its signatory is duly authorized and empowered to sign this agreement and release on behalf of it. 19 . The parties hereto agree to sign all papers and take any further action necessary to accomplish this agreement. The parties agree to perform such acts and prepare, execute, file and record any documents or stipulations reasonable required to perform the covenants and to satisfy the conditions as herein contained. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on their respective behalf, by themselves as of the date and year written above. DATED: , 1994 RALPHS GRO CRY COMPANY B . (typed name) DATED: �(� , 1994 CITY OF PALM SPRIN ATTEST: By: City Clerk (typed name) DATED: 1994 Lu,.© BILL HUDAK /O DATED: 7 5�� , 1994 DOUGLA R. EVANS ra13.rel:ts-3/94 APPROVED BY 7HE 0TY COUNCIL Page 5 USES TO BE PERMITTED UNDER AMENDMENT TO P.D.D. 131: (for Ralphs Grocery Company subleasehold interest only) Antique shop; art gallery, school or studio; athletic or health club; retail bakery('); bank and/or savings and loan; clothing/apparel store; department store; beauty or barber shop(') or school; retail stores (including, but not limited to, book/stationery store, furniture store, drug store, florist, shoes) ; music studio, shop or instrument sales; photography studio(11; museum; modeling studio; dance studio; restaurant; movie or stage theater and/or production facilities; library; retail store or service shop; used or consignment merchandise(') (other than antiques) in connection with at least 50% new merchandise; professional or service offices; recreational facilities (i.e. , bowling alley, amusement center) ; training facilities; supermarket; craft or hobby store; hardware/appliance store; jewelry store; toy store; church or synagogue(with a conditional use permit) ; private club; pet store. EXHIBIT "A" (1) not to be considered as an anchor