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HomeMy WebLinkAboutContracts & Agreements_222-2018SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (` Agreement") is entered into this day of Novembei 2018, by and between CITIZENS FOR EQUITABLE REDLANDS, an unincorporated association ("CFER ), the CITY OF REDLANDS, a municipal torpor ation ("CITY"), A COMMUNITY OF FRIENDS. a California non-profit corporation, and REDLANDS SUPPORTIVE HOUSING, L P ("Real Parties in Interest" of "RPIs"), referred to herein collectively as the "Parties" and individually as 'Party " RECITALS A On. October 17, 2017, CFER filed a Verified Petition for Peremptory Writ of Mandate ("Petition") in San Bernardino County Superior Court ( `Court' ), Case No CIVDS 1720139, CItizens foi Equitable Redlands v Ciryy of Redlands (the `Action") The Petition challenged the Septennbei 19 2017 and October 3, 2017 decisions of the CITY to approve and adopt resolutions and ordinances approving RPIs' Liberty Lane Apartments Project ("Project"), adopt a Mitigated Negative Declaration foi the Project, and make related findings and determinations The Petition named the CITY as Respondent and named the RPIs as Real Patties in Interest B On April 13, 2018, RPIs filed a motion seeking an ordei requiring CFER to post an undertaking in the sum of S500,000 pursuant to Section 529 2 of the Code of Civil Procedure The Court denied this motion rn a written ordei dated June 28, 2018 C On August 10, 2018, the Court heard oral ai gunnent on the merits of the Petition, and on October 5, 2018 the Court issued a written ruling denying the Petition m all respects The Court later entered judgment m favoi of the CITY and RPIs, notice of which entry of Judgment was served on October 25, 2018 D The Parties have determined that it is in their mutual interest to settle this dispute without further litigation on the terms and conditions set forth rn this Agreement WHEREFORE, foi valuable consideration, including the obligations and terms as set forth below, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows 1 CFER shall not file any appeal of the Court's judgement denying the Petition, and shall not bring any other challenge advancing the claims brought m this Action 2 Neither the CITY nor RPIs shall claim any costs as prevailing parties pursuant to sections 1032(b) and 1109 of the Code of Civil Procedure RPIs also shall not file any appeal challenging the Court's June 28, 2018 order denying RPIs' motion foi an undertaking pursuant to Section 529 2 of the Code of Civil Procedure 3 In the event either Party breaches its obligations under this Agreement, the non - breaching Party shall be entitled to reco\,er all direct, indirect and consequential damages of such breach Page I of 6 4 Release and Waiver The Parties hereby release and forever discharge each other and all of their respective present and formes subsidiaries, subdivisions, Board, Council, officers, directors, executives, agents, employees, affiliates, members, attorneys and each and all of their respective predecessors, successors, spouses, assigns and insurers, from any and all liability, claims, demands and causes of action, and alI matters relating, involving and/or pertaining, directly or indirectly, to all aspects of the Action or any othei claim related to the Action, known or unknown, which may now be available or may be discovered at a future date It is understood and agreed that this is a full and fmal mutual release of the Action The Parties agree, as furthei consideration and inducement for this Agreement, to waive the provisions of California Civil Code § 1542 which provides as follows "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 5 Cooperation on Additional Documents Each of the Parties agrees to execute and deliver to each of the othei Parties additional documents, instruments, and agreements required to take such additional actions as are requii ed to implement the terms and conditions of this Agreement 6 Bmding Effect and Third Parties The Parties agree that the obligations and benefits arising out of the Agreement, including, but not limited to, the Release set forth in Section 4, and each of the terms of this Agreement, shall be binding upon and shall inure to the benefit of any successors and assigns of the Parties This Agreement is not for the benefit of any person not a party to this Agreement 7 Additional Terms 7 1 Final Integrated Agreement This Agreement contains the entire agreement and understanding concerning the subject mattei herein and supersedes and replaces any prior negotiations and agreements between the Parties, whether written or oral 7 2 Understanding of Agreement Each Party understands and agrees to this Agreement, the terms and conditions contained herein and in the documents referred to herein, and has relied upon his, her, or its own judgment, belief, knowledge, understandmg, and expertise after careful consultation with his, her, or its own legal counsel concernmg the legal effect of all of the terms of this Agreement Page 2 of 6 7 3 Voluntary Settlement Each Party enters into this Agreement knowingly and voluntarily, m the total absence of any fraud, mistake, duress, coercion, of undue influence and, after careful thought and reflection upon the settlement, this Agreement and the documents referred to herein, and, accordingly, by signing this Agreement and the documents referred to herein, each signifies full understanding, agreement, and acceptance The Parties acknowledge and represent that this Agreement has been prepared and its negotiation has been carried on by the joint effort of the Parties This Agreement shall be construed as if it were drafted by all Parties and not strictly for or against any one or more of the Parties Each Party to this Agreement acknowledges and represents that helsheht has read this Agreement and understands all of its terms 7 4 Investigation of Facts Consultation with Independent Counsel Each Party has investigated the facts and had the opportunity to consult with independent counsel pertammg to this Agreement and all matters pertaining thereto as deemed necessary by each 7 5 California Law This Agreement, and the documents referred to herein, shall be governed by, and construed and interpreted in accordance with, the laws of the State of California 7 6 Severability In the event that any provision of this Agreement should be held to be void, voidable, or unenforceable, the remaining portions hereof shall remain in full force and effect 7 7 Multiple Counterparts This Agreement may be executed m any number of counterparts, each of which may be deemed an original, and all of which together shall constitute a single instrument, notwithstanding that all the Parties are not signatories to the original or same counterpart Photocopies or facsimiles shall constitute good evidence of such execution 7 8 Waivei, Modification and Amendment No breach of this Agreement or of any provision herein can be waived except by an express written waiver executed by the Party waivmg such breach Waiver of any one breach shall not be deemed a waiver of any other breach of the same or other provisions of this Agreement This Agreement may be amended, altered, modified, or otherwise changed m any respect or particular only by a writing duly executed by the Parties hereto or their authonzed representatives 7 9 Effective Date Page 3 of 6 written Upon execution by all Parties, this Agreement shall be effective as of the date first above 710 Captions/Language Section, paragraph, and other captions or headings contained in this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend 01 otherwise describe the scope or intent of this Agreement or any provision hereof and shall not affect in any way the meaning or interpretation of this Agreement In the language of this document and the documents referred to herein, the singular and plural numbers, and the masculine, feminine and neutral genders, shall each be deemed to include all others, and the word "person" shall be deemed to include corporations and every other entity, as the context may require 7 11 Attorneys' Fees a Fees and Costs Already Incurred Each Party shall be responsible for its own costs and attorneys' fees incurred b Proceedings to Enforce Agreement In any proceeding at law or in equity to enforce any of the provisions 01 rights under this Agreement, the prevailing Party shall be entitled to recover from the unsuccessful Party all costs, expenses and reasonable attorneys fees incurred in the enforcement proceeding by the prevailing Party (including, without limitation, such costs, expenses, and fees on any appeals) and if such prevailing Party shall recover judgment in any such action or proceeding, such costs, expenses, mcluding those of expert witnesses, and attorneys' fees shall be included in and as part of the judgment 7 12 Signatories' Authority Each person executing this Agreement on behalf of a Party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and such Party has full right and authority and has obtained all consents and approvals and taken all actions necessary to enter into this Agreement, perform all of its obligations hereunder, and consummate all transactions contemplated under this Agreement 713 Notice Any notice, demand, request, or other communication required or permitted to be given undei this Agreement, (a) shall be made in writing, (b) shall be delivered by one of the following methods (i) by personal delivery (with notice deemed given when delivered personally), (ii) by overnight courier (with notice deemed given upon written verification of receipt), or (ni) by certified or registered mail, return receipt requested (with notice deemed given upon verification of receipt), and (c) shall be addressed to a Party as provided in this Section or such other address as such Party may request by notice given in accordance with the terms of this Section Notice to CFER shall be provided as follows Page 4 of 6 Abigail Smith Law Offices of Abigail Smith 1455 Frazee Rd Ste 500 San Diego, CA 92108 Notice to CITY shall be provided as follows Daniel J McHugh City Attorney City of Redlands PO Box3005 Redlands, CA 92373 With copy to Michelle Ouellette Best Best & Kreger LLP 3390 University Avenue, 5th Flooi P O Box 1028 Riverside CA 92502 Notice to RPIs shall be provided as follows Dora Leong Gallo A Community of Friends 3701 Wilshire Boulevard, Suite 700 Los Angeles, CA 90010 With copy to Daniel R Golub Holland & Knight LLP 50 California Street, Suite 2800 San Francisco, CA 94111 8 No Admission of Liability It is furthei understood and agreed that the settlement effected by this Agreement pertains to disputed claims and is the result of compromise As such, it does not constitute and shall not be deemed an adniission of liability by any Party IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above Date 11 10t12-Olgi Date )3° CITIZENS FOR EQUITABLE REDLANDS By C_hri's+ihe_ROc - Its /V1 r'nb f Page 5 of 6 Date Date 1\10v`evit%', Date yvtwkit- lc" CITY EDLAN S By DANML J MCHUGH It; City Acton—iey A CON r, NITY OF FRF-NDS 'S L'evs Lts� Its C. \-;e.'e AA-N\st � RELANSUPPORTIVE HOUSING, L P Its PNIJii ti ( Paee 6 of 6