2009/03/24 City Council Resolution 2009-26RESOLUTION NO. 2009-26
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING RANCHO VERDE MOBILEHOME PARK
SETTLEMENT AND RELEASE AGREEMENT WITH
RVP ROHNERT PARK, LP, A CALIFORNIA LIMITED PARTNERSHIP
(SUCCESSOR -IN- INTEREST TO INDIAN SPRINGS, LTD.)
WHEREAS, in August 2007, RVP ROHNERT PARK, LP, a California limited
partnership (successor -in- interest to Indian Springs, Ltd.) ( "RVP ") filed a complaint
against the City in Sonoma County Superior Court, Case No. SCV- 241225 and related
Case No. SCV 241227; and
WHEREAS, the parties have reached a resolution to the matter and the City
Council wishes to enter into a settlement and release agreement with RVP in the form
attached hereto and incorporated herein as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Rohnert Park that the City Council authorizes and approves the Settlement and Release
Agreement set forth in Exhibit A.
BE IT FURTHER RESOLVED that the Mayor is authorized and directed to
execute same for and on behalf of the City of Rohnert Park.
DULY AND REGULARLY ADOPTED by the City Council of the City of
Rohnert Park this 24t` day of March, 2009.
CITY OF ROHNERT PARK
R111",01.1 r
ATTEST:
BELFORTE: AYE CALLINAN: AYE MACKENZIE: AYE STAFFORD: AYE BREEZE: AYE
AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0)
RANCHO VERDE MOBILEHOME PARK SETTLEMENT AND RELEASE
AGREEMENT
CASE NOS. SCV 241227 AND SCV 241225
This Rancho Verde Mobilehome Park Settlement and Release Agreement ( "Agreement ")
is entered into as of March 24, 2009 ( "Effective Date ") by and between RVP ROHNERT
PARK, LP, a California limited partnership (successor -in- interest to Indian Springs, Ltd.)
( "RVP ") and the CITY OF ROHNERT PARK, a municipal corporation ( "City "). RVP and City
are collectively referred to herein as the "Parties" and singularly as a "Party ".
RECITALS
A. On or around August 9, 2006, Indian Springs, Ltd., predecessor -in- interest to
RVP and Sunset Strip Corp., a Florida corporation, whose successor -in- interest is CMC Realty,
Inc., a California corporation ( "CMC Realty ") (CMC Realty together with RVP are collectively
referred to herein as the "Owners'') filed an application with the City for a tentative parcel map,
regarding conversion of the Rancho Verde Mobile Home Park ( "Park") from rental units to
resident ownership as a single - family manufactured housing condominium project ( "Project "),
Application No. PL2006- 049TPM (the 'Initial Map Application ").
B. On August 2, 2007, Owners, filed a Verified Petition for Writ of Mandate to
vacate the City of Rohnert Park's Resolution No. 2007 -80, Indian Springs, et al. v. City of
Rohnert Park, et al., Sonoma Superior Court ( "Court "), Case No. SCV 241227 ( "Writ Action ")
regarding the Initial Map Application;
C. On August 2, 2007, the Owners filed a Complaint for Injunctive Relief,
Declaratory Relief, and Inverse Condemnation based on the City's adoption of Resolution No.
2007 -80, Court Case No. SCV 241225 ( "Damages Action ");
D. On December 11, 2007, the Court granted the City's demurrer to the Owners'
complaint for Injunctive Relief, Declaratory Relief, and Inverse Condemnation;
E. On January 7, 2008, the Owners filed a First Amended Complaint in the Damages
Action;
F. On the Court's own motion, the Damages Action has been currently stayed until at
least March 24, 2009;
G. The Writ Action has been briefed and argued before the Court, however the Court
stayed issuance of its ruling with respect to the Writ Action to allow sufficient time for the
Parties to enter into this Agreement;
H. The Parties now desire to settle and resolve all disputes as herein set forth.
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Exhibit A
The recitals set forth above are an essential part of the Parties' agreement and are
therefore incorporated by reference into this Agreement as though fully restated below.
NOW THEREFORE, in consideration of the above recitals and for other good and
valuable consideration, the receipt and adequacy of which is acknowledged, it is hereby agreed
as follows:
AGREEMENT
Obligations of RVP.
1.1 Stay of the Writ Action and Damages Action.
RVP agrees to enter into a stipulation with the City ( "Stipulation ") to continue the stay
of the Damages Action and the Writ Action (collectively, "Stipulated Stays "), and submit to the
Court a proposed order of the Court to continue staying the Damages Action and the Writ Action
pursuant to the Stipulation ( "Proposed Order). The Stipulation and Proposed Order shall be
substantially in the same form and content as the form of Stipulation and Proposed Order
attached hereto as Exhibit A.
1.2 Supplements to Existing Subdivision Application.
Not later than thirty (30) days after the Effective Date, RVP shall supplement the Initial
Map Application filed with the City in accordance with the requirements under Sections 1.2.1
and 1.2.2 ( "Supplemented Application "). The City shall diligently process the Supplemented
Application and shall either approve or disapprove the Supplemented Application and the final
map for the project ( "Final Map ") in accordance with the requirements set forth under Section 2
hereof.
1.2.1 Supplemented Application Form and Content Requirements. Based
on certain provisions of Section 16.10.070 of the Rohnert Park Municipal Code, as modified
herein, the Supplemented Application shall be in compliance with the following requirements
regarding form and content:
(a) Subsection A: A title including the subdivision number obtained
from the city engineer, and type of subdivision.
(b) Subsection B: Name and address of legal owner, subdivider and
person preparing the map, including registration or license number.
(c) Subsection C: Sufficient legal description to define the boundary
of the proposed subdivision; names and locations of streets adjacent to the proposed subdivision
shall be indicated.
(d) Subsection D: The numbers of adjacent subdivisions and the
names of owners of adjacent properties. For purposes of this subsection, "adjacent" shall mean
within five hundred (500) feet of the boundary lines of the property.
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(e) Subsection E: Boundary lines of the City, school district, and
other taxing districts when within or contiguous to the subdivision.
(f) Subsection F: Date of map preparation and map revision, if the
map is revised after the initial submittal to the City, north arrow, scale.
(g) Subsection G: A vicinity map showing streets, adjoining
subdivisions, shopping centers, schools, and other data sufficient to locate the proposed
subdivision and show its relation to the community. For purposes of this subsection,
"adjoining" shall mean within five hundred (500) feet of the boundary lines of the property.
(h) Subsection H: Existing topography of the subject properly. There
are no proposed changes in topography of the property. The contours of the land shall be shown
at intervals of not more than one foot for ground slopes between level and five percent, and not
more than five feet for ground slopes in excess of five percent. Elevations shall be according to
U.S. Geodetic Survey datum, commonly termed mean sea level.
(i) Subsection I: Existing improvements to be shown include, but are
not limited to:
(i) The location and outline of existing common area
structures to scale identified by type. No structures will be removed as part of the conversion.
(ii) Existing drainage channels, culverts, irrigation ditches,
wells and springs, and the approximate location of all areas subject to inundation or stormwater
overflow, and the location, width and direction of each watercourse.
(iii) The widths, location and identity of all existing easements.
(iv) The location and size of existing sanitary sewers, fire
hydrants, water mains and storm drains within and/or contiguous to the proposed subdivision.
The approximate slope of existing sewers and storm drains shall be indicated. To the extent
information is available from prior as built maps or plans, the following information shall be
provided. The location of existing overhead and underground utility lines and poles within the
proposed subdivision.
0) Subsection J: On the map, number the proposed condominium
units sequentially.
(k) Subsection K: On the map, add a note which lists the largest and
the smallest condominium unit.
(1) Subsection L: On the map, identify the approximate boundaries of
areas subject to inundation of storm water overflows from a twenty -five (25) year return
frequency precipitation event, the location, width, and direction of flow of all watercourses.
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1.2.2 Based on certain provisions of Section 16.10.080 of the Rohnert Park
Municipal Code, as modified herein, the Supplemented Application shall be accompanied by the
following data and reports:
(a) Subsection A: A statement of present zoning and of existing uses
of the property. The Supplemented Application will indicate that there is no zone change request
with the Supplemented Application nor are any future zone changes anticipated.
(b) Subsection B: A description of the proposed subdivision,
including the number of lots, their average size, and the nature of the proposed development.
The Parties acknowledge that the Project has no new development and/or construction
contemplated, and that the current use of the property as a manufactured housing community will
remain unchanged.
(c) Subsection C: A preliminary title report, not more than six months
old and acceptable to the department, showing the legal owners of the subject property at the
time of filing the tentative map.
(d) Subsection D: The Parties agree that there are no proposed tract or
deed restrictions, if any, except that in conjunction with the creation under the Subdivided Lands
Act and Davis - Stirling Act compliance, a Declaration of Conditions, Covenants and Restrictions
( "CC &Rs ") will be submitted to the California Department of Real Estate ( "DRE ") for review,
approval and recordation. Upon issuance of the final public report issued by the DRE, or
approval of the CC &Rs by the DRE, which ever is earlier, RVP will provide a copy of said
approved document.
(e) Subsection E: A signed statement of compliance indicating
whether the Project is located on a hazardous waste and substance site as defined in the
Government Code (Gov. Code §§ 65940, 65962.5 (f)).
(f) Subsection F: The most recent Phase I Environmental Site
Assessment (ESA) for the Project caused to be prepared by RVP's predecessor -in- interest. If the
Phase I ESA indicates that a soil and groundwater investigation (Phase II ESA) is warranted,
then, and only then, shall a Phase II ESA be conducted and a report prepared and submitted with
the Phase I ESA. If a Phase II ESA is prepared, it must be conducted by, and the report prepared
by, a California Registered Geologist (PG) or Professional Engineer (PE). The requirements of
this paragraph are not required as a condition to RVP's filing of the Supplemented Application,
but may be included as a condition of approval of the Supplemented Application.
(g) Subsection G: Hazardous Waste and Substances Statement.
Government Code Section 65962.5 requires the California Secretary for Environmental
Protection to consolidate information regarding land where certain hazardous wastes or
contaminants are present, and to distribute a list to each city and county in which sites on the list
are located. An applicant for any development project must consult the list sent to the City and
submit a signed statement to the City indicating whether the Project and any alternatives are
located on the list. (Ord. 744 § 1 (part), 2005.)
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1.3 Conditions of Approval.
RVP hereby agrees to the following conditions of approval being imposed on City
Council approval of the Supplemented Application:
1.3.1 Storm Drain Maintenance. RVP agrees as a condition of approval of the
Supplemented Application that RVP shall maintain the storm drain system for the Park,
including hiring a contractor to perform annual and on call video inspection of storm drain pipes,
to flush drainage inlet grates and boxes, and to remove sediment, vegetation and debris blocking
storm drain outfalls. In addition, RVP onsite maintenance staff and its contractor shall continue
to monitor storm drain inlets and outfalls. In addition, in order to mitigate storm water runoff
and flooding, RVP shall cause water pumps to be utilized in the Park when necessary to prevent
flooding. RVP's obligation to maintain the storm drain system and to cause utilization of water
pumps within the Park as described in this paragraph (collectively, "Storm Drain Maintenance
Obligations ") shall terminate upon the close of escrow for the sale of the first unit in the Park to
a resident buyer ( "Conversion Date "), and shall thereafter be the responsibility of the
homeowners' association for the Park ( "HOA "). RVP shall include provisions in the CC &Rs for
the Park requiring the HOA to perform all Storm Drain Maintenance Obligations after the
Conversion Date. The terms of this paragraph regarding RVP's Storm Drain Maintenance
Obligations is not an admission that the Park or Project is defective as a result of any action or
inaction on the part of RVP. Further, this paragraph shall not be used in any manner for any
legal action, whether in terms of claims or litigation, as an admission that there is a defect or
liability related to storm water within the Park or Project against RVP.
1.3.2 Compliance with Mobilehome Park Act, Title 25 ( "Title 25111. RVP
shall submit with the Supplemented Application a Title 25 inspection report prepared within the
twelve (12) month period prior to the Effective Date indicating that an inspection of the Park was
performed by either a third parry contractor or the California HCD for the purpose of
determining what, if any, violations of Title 25 existed in the common areas and facilities of the
Park. Correction of all violations identified by the Title 25 inspection report shall be a condition
of approval for the Supplemented Application, and correction of all violations must be completed
prior to approval of the Final Map.
1.4 Payment of Processins Fees.
RVP shall submit with the Supplemented Application a payment of $10,000 for fees and
costs to the City incurred by RVP prior to the Effective Date with respect to the Initial Map
Application
1.5 Additional Requirements.
As provided for under Section 2 hereof, the City shall not impose any requirements or
conditions of approval for the Supplemented Application (or regarding approval of the Final
Map) other than those set forth in Section 1 hereof. In the event the City imposes requirements
or conditions with respect to the Supplemented Application (or regarding approval of the Final
Map) other than those set forth in Section 1 hereof, (any such additional City approval
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requirement is referred to herein as an "Additional Approval Requirement "), then RVP shall
have the right to exercise all of the RVP Remedies as described under Section 5 hereof.
2. Obligations of the City.
In addition to all other obligations of the City provided for in this Agreement, the City
agrees to comply with each of the obligations set forth in this Section 2.
2.1 May Application Processing Fees.
As of the Effective Date, the City agrees that, except for RVP's payment of (i) $10,000
for fees and costs to the City incurred by RVP prior to the Effective Date with respect to the
Initial Map Application pursuant to Section 1.4, which shall be paid at the time that RVP submits
the Supplemented Application, and (ii) up to but not more than $10,000 for fees and costs
attributable to Supplemented Application processing charges incurred after the Effective Date
( "Supplemented Map Application Processing Charges "), RVP has no obligation to pay any
further Map Application Processing Charges pertaining to RVP's Initial Map Application or
Supplemented Application, including in connection with the Supplemented Application,
Modified Supplemented Application or the Planning Department Disapproved Supplemented
Application, as the case may be. RVP agrees to pay the Supplemented Map Application
Processing Charges to the City within ten (10) days of the City Council's approval of the
Supplemented Application, Modified Supplemented Application or the Planning Department
Disapproved Supplemented Application, as the case may be. Prior to RVP making payment of
the Supplemented Map Application Processing Charges, the City shall notify RVP in writing of
the actual amount (not to exceed $10,000) which is payable by RVP to the City.
2.2 Processing of the Supplemented Application.
Within thirty (30) days after the date of RVP's delivery to the City of the Supplemented
Application ( "City Planning Department Review Period "), the City's Planning Department
staff shall deliver written notice to RVP concerning whether the Supplemented Application
complies with the requirements under Sections 1.2.1 and 1.2.2 hereof. In the event the City's
Planning Department staff notifies RVP in writing that the Supplemented Application complies
with the requirements under Sections 1.2.1 and 1.2.2 hereof (the date of delivery of such notice
of compliance to RVP is hereinafter referred to as the "Planning Department Notice of
Compliance Date "), then the City's Planning Department staff shall, within thirty (30) days of
the Planning Department Notice of Compliance Date, deliver a staff report to the City Council
recommending the City Council's approval of the Supplemented Application, and the City
Council shall either approve without any additional conditions which are not already provided
for under this Agreement or disapprove the Supplemented Application within thirty (30) days
after the Planning Department Notice of Compliance Date.
If within the City Planning Department Review Period, the City's Planning Department
staff determines that the Supplemented Application either fails to comply with the requirements
under Section 1.2.1 and 1.2.2 hereof or otherwise disapproves of the Supplemented Application
( "Planning Department Disapproved Supplemented Application "), then the City's Planning
Department staff shall deliver written notice to RVP of same and specify the grounds for non-
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compliance or disapproval (the date of the delivery of such written notice of non - compliance or
disapproval is hereinafter referred to as the "Planning Department Notice of Disapproval
Date "). RVP shall have the right to cure or make modifications to the Supplemented
Application and re- submit such cured or modified Supplemented Application ( "Modified
Supplemented Application ") to the City Planning Department staff for re- determination of
whether the Modified Supplemented Application complies with the requirements under Sections
1.2.1 and 1.2.2 hereof, and the City Planning Department staff shall within fifteen (15) days of
receipt of Modified Supplemented Application deliver written notice to RVP of its compliance or
non - compliance. In the event the City's Planning Department staff notifies RVP in writing of
compliance (the date of delivery of such notice of compliance to RVP is hereinafter referred to as
the "Planning Department Notice of Compliance Date for Modified Supplemented
Application "), then the City's Planning Department staff shall, within thirty (30) days of the
Planning Department Notice of Compliance Date for Modified Supplemented Application,
deliver a staff report to the City Council, and the City Council shall either approve without any
additional conditions which are not already provided for under this Agreement or disapprove the
Modified Supplemented Application within thirty (30) days after the Planning Department
Notice of Compliance Date for Modified Supplemented Application. RVP shall have the right
to cure and make modifications on an unlimited basis to the Supplemented Application and to
any Modified Supplemented Application and to re- submit the same to the City's Planning
Department staff for determination of compliance with Sections 1.2.1 and 1.2.2 hereof and to
have the same re- submitted to the City Council for approval or disapproval. For each such cure,
modification and re- submission, the terms regarding City Planning Department staff and City
Council processing as set forth in this paragraph shall apply.
Alternatively, upon written request to the City Planning Department, RVP shall have the
right to cause the Planning Department Disapproved Supplemented Application or the Modified
Supplemented Application to be directly submitted by the City's Planning Department staff with
a staff report to the City Council ( "Request for Direct Submission "), and the City Council shall
either approve or disapprove the Planning Department Disapproved Supplemented Application
or the Modified Supplement Application, as the case may be, within thirty (30) days after the
City Planning Department's receipt of the Request for Direct Submission.
Notwithstanding anything to the contrary herein, (i) the City Council and City shall take
such action as shall be necessary in order to deliver written notice to RVP either approving or
disapproving the Supplemented Application by not later than September 1, 2009
( "Supplemented Application Approval Deadline "), and (ii) in the event that the City's
Planning Department staff disapproves of the Supplemented Application or the Modified
Supplemented Application, or the City Council disapproves of the Supplemented Application,
the Planning Department Disapproved Supplemented Application, the Modified Supplemented
Application or the Final Map (each herein referred to herein as a "City Disapproval of the
Project "), the Parties acknowledge and agree that RVP shall have the right to exercise any or all
of the RVP Remedies as described under Section 5 hereof.
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2.3 Satisfaction of Judgment and Release.
Within thirty (30) days after the Effective Date, RVP shall deliver a check to the City in
the amount of $13,058.30, and within ten (10) days of the City's receipt of such check, the City
shall file a satisfaction of judgment in favor of RVP and Indian Springs, Ltd. (RVP's
predecessor -in- interest) ( "RVP Parties ") with respect to that certain litigation known as Iona
Sime, etc., et al. v. City of Rohnert Park, Superior Court of the State of California, County of
Sonoma, Case No. SCV 166309 (`.`Lawsuit "). Simultaneous with the filing of such satisfaction
of judgment, City and RVP shall deliver to the other their counterpart signatures to a mutual
release in the standard form which shall include, among other things, a statement of release of
the other party and their related parties from any liability for any claims and acts referenced in
the Lawsuit.
Exemption from Environmental Impact Report.
The Parties believe that conversion of the Park to resident ownership and subdivision in
connection therewith is exempt from an Environmental Impact Report ( "EIR ") and ght an EIR
shall not be required as a condition to approval of the Supplemented Application. If, after further
evaluation, the City determines an EIR is required as a condition to approval of the
Supplemented Application and notifies RVP of same (referred to herein as a "City EIR
Condition Requirement "), RVP shall have the right to exercise any or all of the RVP Remedies
as described under Section 5 hereof.
4. Supplemented Application Approval.
If no lawsuit challenging the City's approval of this Agreement or the Supplemented
Application (or, if applicable, the Modified Supplemented Application or the Planning
Department Disapproved Supplemented Application) is filed within 90 days of said approval,
then RVP shall file a dismissal with prejudice of the Writ Action, and a dismissal without
prejudice of the Damages Action (collectively, "Dismissals of the Actions "). In the event RVP
files Dismissals of the Actions, RVP agrees to cause CMC Realty to file a Dismissal of the Writ
Action. Any and all deadlines that might otherwise limit, abridge, or prevent the filing or
prosecution of any and all claims by one Party against any other Party related to the Damages
Action are tolled until the earlier of (a) ninety (90) days after City's approval of the Final Map,
or (b) thirty (30) business days after the date on which Owner exercises any of the RVP
Remedies in Section 5. The City hereby waives any defenses to claims related to the Damages
Action based upon any statute of limitation, laches or estoppel issue arising during this tolling
period.
5. RVP Remedies.
Upon the occurrence of an Additional Approval Requirement, a City EIR Condition
Requirement or a City Disapproval of the Project, or in the event of the City's breach of this
Agreement or any of its obligations hereunder, or in the event the City Council has not approved
the Supplemented Application, the Modified Supplemented Application or the Planning
Department Disapproved Supplemented Application, as the case may be, by the Supplemented
Application Approval Deadline, then upon 10 days prior written notice to the City, RVP shall
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have the right (i) to terminate this Agreement (except with respect to RVP's obligations under
Section 2.3 hereof), and (ii) to actively pursue all litigation pertaining to and in connection with
the Writ Action and the Damages Action and to take such other legal action against the City and
others that may be available at law or in equity regarding the Supplemented Application (or if
applicable the Planning Department Disapproved Supplemented Application or the Modified
Supplemented Application), and with respect to any other claims as RVP determines to be
appropriate. In the event RVP exercises any of the rights and remedies described in clauses (i) or
(ii) above (collectively referred to herein as the "RVP Remedies "), the Stipulated Stays shall be
automatically lifted and shall be of no further force or effect.
6. Release of Disputes.
6.1 When Effective.
Upon the filing of Dismissals of the Actions, release of the Disputes (as defined in
Section 6.2 below) shall become effective and legally binding on RVP and the City.
6.2 Released Matters.
6.2.1 Subject to the terms of Section 6.1 above, each and both of RVP and the
City desire to mutually and generally release, acquit and forever discharge compromise, settle,
satisfy, and forever discharge the other Party, their agents, successors, predecessors,
representatives, employees, volunteers, subsidiaries, related, interrelated, parent or affiliated
companies or governmental agencies or divisions heirs, assigns, partnerships, insurers, present
and former partners, officials, officers or directors, administrators, executors, trustees, attorneys,
co- partners, co- ventures, and insurers (individually and collectively, "Releasees ") of and from
any and all actions, causes of action, claims, cross - claims, disputes, demands, damages, losses,
fines, taxes, costs, loss of service, expenses, liabilities, attorneys' fees, and debts whatsoever, in
law or in equity, whether known or unknown, of any kind or character (collectively, the
"Claims ") based upon, related to, arising out of, or in connection with the Damages Action and
the Writ Action (the "Disputes ").
6.2.2 Subject to the terms of Section 6.1 above, each of RVP and the City agrees
to waive and release the Releasees from any and all Claims which they have or may have against
the Releasees based upon, related to, arising out of, or in connection with the Disputes. Each of
RVP and the City further agrees that it will bring no proceedings, whether directly or indirectly,
against the Releasees before any court or any other forum whatsoever by reason of the Disputes.
All such Claims are forever barred by this Agreement without regard to whether they are based
on any alleged breach of duty arising in contract or tort (except for any actionable libel or
slander), whether these claims arise under statute, ordinance, law or equity, and regardless of the
forum in which they may be brought.
6.3 Civil Code Section & 1542; Full and Knowins Release.
6.3.1 Each of RVP and the City acknowledges that they are familiar with
Section 1542 of the Civil Code of the State of California, which provides:
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"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."
6.3.2 Each of RVP and the City fully understands that if any fact(s) pertaining
to the execution of this Agreement are discovered, after the date of this fully executed
Agreement, to be other than or different from the fact(s) now believed by them to be true,
expressly accepts,and assumes the risk of such possible difference of fact(s) and/or belief, and
agrees that this Agreement shall be and remain effective notwithstanding such difference in
fact(s) and/or belief. Each of RVP and the City further specifically waives all rights or benefits,
which it now has or in the future may acquire under the terms of Section 1542 of the California
Civil Code.
6.3.3 Each of RVP and the City understands and agrees that: (a) it has carefully
read and fully understands all of the provisions in this Agreement; (b) by and through this
Agreement, it and they are mutually releasing the Releasees from any and all Claims based upon,
related to, arising out of, or in connection with the Disputes that they may have against the
Releasees; (c) it knowingly and voluntarily agrees to all of the terms set forth in this Agreement;
and (d) it knowingly and voluntarily intends to be legally bound by this Agreement. Each of
RVP and the City represents and acknowledges that, in executing this Agreement, it is not
relying, and has not relied upon any representation or statement made by any other Party or any
of such Party's agents, attorneys, employees, officers, directors, supervisors or representatives
with regard to the subject matter, basis and/or effect of this Agreement or otherwise, other than
those specifically provided herein.
7. Notices.
Comments or other notices required or permitted to be given hereunder shall be given in
writing and shall be delivered (a) in person or (b) by a nationally recognized overnight delivery
service, (c) by certified or registered U.S. Mail with postage prepaid, return receipt requested, or
(d) facsimile. Notices shall be effective on the date of delivery or receipt, or if delivery is not
accepted, on the earlier of the date that delivery is refused or five (5) days after the date the
notice is mailed. Each party shall make an ordinary, good faith effort to ensure that it will accept
or receive notices that are given in accordance with this Section 7, and that any person to be
given notice actually receives such notice. The addresses to be used are as follows:
RVP Rohnert Park, LP
2029 Century Park East
Suite 1450
Los Angeles, CA 90067
Telephone: 310- 785 -9500
Facsimile: 310 -556 -0106
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AND COPY TO:
Gilchrist & Rutter Professional Corp.
Attention: Richard H. Close, Esq.
1299 Ocean Avenue, Suite 900
Santa Monica, CA 90401
Telephone: 310- 393 -4000
Facsimile: 310-394-4700
Email: rclose @gilchristrutter.com
TO CITY:
Michelle M. Kenyon
McDonough, Holland & Allen PC
1901 Harrison St., 9th Flr.
Oakland, CA 94612
Fax: 510- 839 -9104
Telephone: 510- 273 -8780
Any addressee or Party listed above may change or supplement the addresses given
above, or designate additional addressees, for purposes of this Agreement by delivering to the
other Party and addressees written notice in the manner set forth above.
California Law.
This Agreement is made and entered into in the State of California and shall be
interpreted, construed and enforced in accordance with the laws of the State of California in
effect as of January 1, 2009 without reference to its choice of laws rules
9. Legal Representation.
The Parties affirm that they have been represented by counsel of their own choosing
regarding the preparation and negotiation of this Agreement and the matters and claims set forth
herein, and that each them has read this Agreement and is fully aware of its contents and its legal
effect. Neither Party is relying on any statement of the other Party outside of the terms set forth
in this Agreement as an inducement to enter into this Agreement. Each Party shall bear their
own attorneys' fees and costs with regard to preparation of this Agreement and regarding both
the Writ Action and Damages Action, unless, with respect to attorneys' fees and costs pertaining
to the Writ Action or the Damages Action, either or both of such actions are recommenced under
the terms of this Agreement.
10. Joint Preparation.
This Agreement shall be interpreted as though prepared jointly by both Parties. Nothing
contained herein nor any acts of the Parties hereto shall be deemed or construed by the Parties
hereto, nor by any third party, as creating the relationship of principal and agent or of partnership
or of joint venture by the Parties hereto. The word "including" shall be construed as if followed
by the words "without limitation."
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11. No Third Party Beneficiary.
This Agreement is made and entered into for the sole benefit of the Parties, and no other
person or entity shall have any rights or remedies under this Agreement. There are no third party
beneficiaries to this Agreement and nothing herein is intended to create any third parry benefit.
12. Warranty of Authority.
Each individual or entity executing this Agreement on behalf of RVP and the City
represents and warrants that he or she or it is duly authorized to execute and deliver this
Agreement on behalf of such Parry and that such execution is binding upon such Party.
13. Modification.
This Agreement may not be altered, amended, modified or otherwise changed except in
writing duly executed by an authorized representative of each of the Parties.
14. Entire Agreement.
The Parties agree that this Agreement sets forth the entire agreement between them and
relating to the subject matter and that this document merges and supersedes all prior discussions,
agreements, understandings, representations, and all other communications between them
relating to the subject matter of this Agreement.
15. Captions.
Captions are included herein for ease, of reference only. The captions are not intended to
affect the meaning of the contents or scope of this Agreement.
16: Further Assurances.
The Parties will execute all further and additional documents as shall be reasonable,
convenient, necessary or desirable to carry out the intent and provisions of this Agreement.
17. Counterparts.
This Agreement may be executed in counterparts, each of which will be deemed an
original.
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IN WITNESS WHEREOF, the Parties agree to the foregoing and have executed this
Agreement as of the Effective Date.
Date:
Date:
RVP ROHNERT PARK, LP, a California
limited partnership
By: Goldstein Properties, Inc., a California
corporation
By: _
Name:
Title:
CITY OF ROHNERT PARK, a California
municipal corporation,
By: _
Name:
Title:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
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