Loading...
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. 4843- 3375- 3675v3 '- 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: 4843- 3375- 3675v3 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 4843- 3375- 3675v3 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 4843- 3375- 3675v3 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 4843- 3375- 3675v3 Approved As To Form _to: , City Attorney