AMG & Associates - Settlement Agreement & ReleaseSETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement ( "Agreement "), dated as of �.� . �5, 2017 ( "Effective Date "), is
entered into by Petitioner AMG & Associates, LLC. ( "Petitioner" or "AMG "), and Respondent
City of Gilroy and its City Council ( "Respondent" or "City ") to fully settle the Action, as defined
below, and release all claims on the terms and conditions set forth below. AMG and City are
collectively referred to as the "Parties" and sometimes individually referred to as a "Party."
ARTICLE 1
BACKGROUND /RECITALS.
1.1 Petitioner made application to the City (File AS 14 -41) for Architectural and Site
Review of a 75 -unit senior affordable project (the "Project ") to be located on Assessor Parcel
Number 841 -14 -011 (the Property ")
1.2 On April 18, 2016, the City Council adopted Resolution 2016 -22, approving
application AS 14 -41 for the Project (the "City Approval ").
1.3 On July 13, 2016, AMG filed a Verified Petition for Writ of Mandate and
Complaint For Declaratory Relief entitled AMG & Associates, Inc. v. City of Gilroy et al., Case
No. 16CV297559, in the Santa Clara County Superior Court ( "Action ").
1.4 In the Action, AMG alleges that the City, in adopting Resolution 2016 -22,
violated the State Density Bonus Law and Housing Accountability Act, and the City's Density
Bonus Ordinance, by requiring in Condition 48 of the Final Conditions of Approval that AMG
construct an off -site sidewalk with various improvements to connect from the Property north to
10`h Street.
1.5 AMG and City have agreed to settle all matters and disputes between themselves
in order to achieve a full and complete resolution of all claims that have been asserted or that
could have been asserted by AMG in the Action and/or in regard to the processing of the Project
and the City Approval.
NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions
contained herein, it is hereby stipulated and agreed by the Parties to this Agreement that the
Action shall be fully settled on the terms and conditions set forth in this Agreement.
ARTICLE 2
RECITALSIDEFINITIONS.
The recitals and definitions set forth above are incorporated herein by reference and are
made part of this Agreement.
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ARTICLE 3
NO ADMISSION OF WRONGDOING OR LIABILITY.
All Parties understand and agree that nothing in this Agreement, or in the execution of this
Agreement, shall constitute or be construed as an admission of error or wrongdoing by any Party
or of any inadequacy or impropriety in connection with City's Approval. The Parties expressly
deny any fault or liability for any and all claims made in the Action and acknowledge that this
Agreement is the compromise of existing claims and that there was no adjudication on the merits
of any claim.
ARTICLE 4
CONDITION PRECEDENT TO AGREEMENT.
The following subsection 4.1 is a condition precedent to the effectiveness of this Agreement.
Because the modification of the City Approval requires a legislative action, the City cannot in a
private agreement bind itself to carry out the modification. Accordingly, if the City fails to
modify the City Approval as specified herein, then this Agreement and all the terms hereof shall
be null and void and of no effect; any such failure shall not constitute a breach of this
Agreement.
4.1 City shall amend Resolution 2016 -22 by removing the present language contained
in condition 48 of the Final Conditions of Approval, and substituting therein the following
language: "Other than normal frontage improvements, no separate off -site sidewalk or walkway
is required. Prior to, and as a condition of obtaining its first construction permit (e.g., a grading_
permit or building permit), Developer shall pay the City the sum of Seventy -three Thousand
Four Hundred Thirty -Eight Dollars ($73,438), which the City agrees to use solely for the purpose
of helping to pay for future off -site improvements in the same geographic zoning district in
which the Property is located."
4.2 Within 10 days of final action by the City in accordance with Section 4.1 herein,
AMG shall cause to be filed in the Superior Court a Request for Dismissal with Prejudice of the
entire Action. Failure of AMG to so file the Request for Dismissal shall be a breach of this
Agreement entitling City to obtain an order from the court dismissing the case with prejudice.
ARTICLE 5
NOTICES.
5.1 Notices: Any notice, request, or communication required to be given to either
Party under this Agreement shall be given in writing and shall be personally delivered or mailed
by prepaid registered or certified mail to the addresses below:
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AMG
Alexis Gevorgian
AMG & Associates, LLC
16633 Ventura Blvd, Suite 1014
Encino, CA 91436
With a copy to:
Chris Butcher, Esq.
Thomas Law Group
455 Capitol Mall, Suite 801
Sacramento, CA 95814
City of Gilroy
City of Gilroy
7351 Rosanna Street,
Gilroy, CA 95020
Attn: City Administrator
With a copy to:
Andrew L. Faber, Esq.
Berliner Cohen, LLP
Ten Almaden Boulevard, 11 Floor
San Jose, CA 95113 -2233
AR'T'ICLE 6
RELEASES.
6.1 Except as set forth in this Agreement, AMG releases the City and their respective
owners, affiliates, members, council members, commissioners, officers, employees, agents and
attorneys from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions,
and/or causes of action that AMG has had or now has as of the Effective Date of this Agreement
arising out of, or connected to, the processing or approval of the Project, and the Action, whether
known, unknown or suspected. Each Party shall bear its own attorneys' fees and costs with
regard to the Action and this Agreement.
6.2 Except as set forth in this Agreement, the City releases AMG and its respective
owners, affiliates, members, council members, commissioners, officers, employees, agents and
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attorneys from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions,
and/or causes of action that the City has had or now has as of the Effective Date of this
Agreement arising out of, or connected to, the processing or approval of the Project, and the
Action, whether known, unknown or suspected.
6.3 Each of the Parties has read and has otherwise been informed of the meaning of
Section 1542 of the California Civil Code, and has consulted with its respective counsel, to the
extent that counsel was desired, and understands the provisions of Section 1542. Each of the
Parties hereby expressly waives the rights and benefits conferred upon it by the provisions of
Section 1542 of the California Civil Code, which provides
"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."
ARTICLE 7
MISCELLANEOUS PROVISIONS.
7.1 Successors and Assigns: This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
7.2 No Third -Party Beneficiary: This Agreement shall not be construed as creating
any right or benefit, substantive or procedural, enforceable at law or in equity, in any third -party
person or entity other than the Parties and their respective successors and assigns.
7.3 Entire Agreement: The Parties acknowledge that this Agreement is signed and
executed without reliance upon any actual or implied promises, warranties or representations
made by any of the Parties or by any representative of any of the Parties, other than those which
are expressly contained within this Agreement. This Agreement, including the true and correct
Recitals above, inclusive of all definitions contained therein, that are incorporated by reference
herein as operative covenants and specifically relied upon by the Parties in executing this
Agreement, constitutes the entire agreement and understanding among and between the Parties
and supersedes any and all other agreements whether oral or written between the Parties. This
Agreement represents a negotiated settlement, with both Parties represented by counsel, and shall
not be interpreted in favor of or against either Party based upon which Party originally drafted
this Agreement.
7.4 Amendments and Modifications: This Agreement may only be amended or
modified through a writing executed by all the Parties.
7.5 Choice of Forum: This Agreement shall be deemed to have been executed and
delivered within the State of California; the rights and obligations of the Parties hereunder shall
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be governed, construed and enforced in accordance with the laws of the State of California. The
venue for any dispute arising from or related to this Agreement, its performance, and its
interpretation shall be the Superior Court of California, County of Santa Clara.
7.6 Damages: The Parties agree (i) that the performance of the obligations of this
Agreement are paramount, (ii) that, in the event of a breach, monetary damages will provide
inadequate relief, and (iii) that each may seek equitable relief to enforce such obligations. In no
event, shall either Party be entitled to claim or receive monetary damages or compensation from
the other Party for breach of this Agreement. In the event of litigation to enforce this
Agreement, the prevailing party shall be entitled to reimbursement for costs and reasonable
attorney's fees.
7.7 Authorized Sijznatorv: Each Party represents and warrants to each other Party that
its signature to this Agreement has the authority to bind the Party, and this Agreement does in
fact bind the Party.
7.8 Execution in Counterparts: This Agreement may be executed in one or more
counterparts, which together shall be deemed one original agreement. Execution via facsimile
and electronic mail shall be acceptable to bind a Party as an original.
IN WITNESS WHEREOF, the Parties, have executed this Settlement Agreement as of the date
specified on the first page of this Agreement.
AMG:
AMG & Asso ,
By
Its Managing Member
City:
City of Gilroy
City Administrator
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Approved As To Form
_to: ,
City Attorney