HomeMy WebLinkAboutPalm Street Structure 10.19.11RELEASE AND WAIVER
This Release and Waiver ( "Release Agreement" or "this Agreement ") is entered
into as of December g, 2011, between by and between THE CITY OF SAN LUIS
OBISPO, a municipal corporation and charter city ( "City "), and PALM STREET
PARKING STRUCTURE, a California limited liability company ( "Developer "), with
respect to the following facts:
RECITALS
A. The parties entered into that certain Payment Agreement, dated as of
November 5, 2003 (the "Payment Agreement ") in connection with the construction of
the parking structure at the corner of Palm and Morro Street in San Luis Obispo,
California. On June 9, 2006, the Developer submitted a Payment Request to the City
under the Payment Agreement and, at the City's request, provided additional
information to the City on June 26, 2006. On July 7, 2006, the City notified the
Developer that portions of the amount requested by the Developer would not be paid
based on the information provided. The City paid the balance of the amount requested
on August 2, 2006.
B. A dispute exists between the parties regarding the amount due to the
Developer under the Payment Agreement. The partied entered into tolling agreements to
extend the statue of limitations with respect to the dispute, which will expire on
December 31, 2011.
C. The parties hereto wish to resolve any and all claims either party may
have against each other in connection with payments made or payable under the
Payment Agreement.
Accordingly, in consideration of the mutual understandings and promises set
forth in this Release Agreement, the parties agree as follows:
AGREEMENT
1. For good and valuable consideration, the sufficiency of which is hereby
acknowledged, Developer and anyone claiming by, through or under Developer fully
and irrevocably releases City, and each of its employees, officers, directors,
representatives, agents, servants, attorneys, affiliates, parent companies, subsidiaries,
successors and assigns, and all persons, firms, corporations and organizations acting on
its behalf ( "Released City Parties "), from any and all claims that it may now have or
hereafter acquire against any of the Released City Parties for any and all costs, losses,
liabilities, damages, expenses, demands, claims, actions or causes of action (collectively
"Claims ") arising from or related to the Payment Agreement.
This release includes any and all claims of which Developer is presently unaware or
which Developer does not presently suspect to exist which, if known by Developer,
would materially affect Developer's release to City. Developer specifically waives the
provision of California Civil Code Section 1542, which provides as follows:
GENERAL RELEASE. A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
2. For good and valuable consideration, the sufficiency of which is hereby
acknowledged, City and anyone claiming by, through or under City fully and
irrevocably releases Developer, and each of its employees, officers, directors,
representatives, agents, servants, attorneys, affiliates, parent companies, subsidiaries,
successors and assigns, and all persons, firms, corporations and organizations acting on
its behalf ( "Released Developer Parties "), from any and all claims that it may now
have or hereafter acquire against any of the Released Developer Parties for any and all
costs, losses, liabilities, damages, expenses, demands, claims, actions or causes of
action (collectively "Claims ") arising from or related to the Payment Agreement.
This release includes any and all claims of which City is presently unaware or which
City does not presently suspect to exist which, if known by City, would materially
affect City's release to Developer. City specifically waives the provision of California
Civil Code Section 1542, which provides as follows:
GENERAL RELEASE. A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
3. Based upon the advice of its counsel, each party hereby expressly,
knowingly and voluntarily waives and relinquishes any and all rights that it may have
under Section 1542 as well as under the provisions of all comparable, equivalent, or
similar statutes and principles of law or equity of any and all states of the United States
or of the United States. Each Party understands and acknowledges the significance and
consequences of this waiver and hereby assumes the risk of any injuries, losses or
damages which may arise from such waiver. Each Party expressly intends that such
waiver apply to any and all of the claims released by it.
4. This Release Agreement does not constitute an admission by either party
of liability, or an admission that any cause of action exists in favor of either party for
any claim referred to in this Agreement.
5. All notices, requests, demands and other communications under this
Release Agreement shall be in writing and shall be deemed to have been duly given on
the date of service if served personally, by reliable overnight courier, or by telecopy
transmission for receipt during the receiving parties' normal business hours to the party
to whom notice is to be given, or on the third (3rd) day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or certified, return
receipt requested, postage prepaid, and properly addressed as follows:
City: City of San Luis Obispo
990 Palm Street
San Luis Obispo, California 93401 -3249
Attention: City Administrative Officer
Facsimile: (805) 781 -7109
With a copy to: City Attorney
City of San Luis Obispo
990 Palm Street
San Luis Obispo, California 93401 -3249
Facsimile: (805) 781 -7409
Developer: Palm Street Parking Structure, LLC
Post Office Box 12260
San Luis Obispo, California 93406
Attention: Tom Copeland
Facsimile: (805) 593 -0109
With a copy to: Suzanne Fryer
General Counsel
Palm Street Parking Structure, LLC
Post Office Box 12260
San Luis Obispo, California 93406
Facsimile: (805) 593 -0109
Any party may change its address for purposes of this Tolling Agreement by
giving the other party written notice of the new address in the manner set forth above.
6. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
7. This instrument contains the entire agreement, for purposes of addressing
the Payment Agreement only, between the parties, and no statement, promise, or
inducement made by either party or agents of the parties that is not contained in this
written contract shall be valid or binding; and this contract may not be enlarged,
modified, or altered except in writing signed by the parties.
8. Each of the individuals executing this Agreement on behalf of the
undersigned parties represents and warrants that he or she has the right, power and
authority to bind the party on whose behalf he or she purports to sign.
9. This Agreement may be executed in counterparts or by facsimile.
IN WITNESS WHEREOF, the parties to this Modification have duly executed it
as of the day and year first written above.
CITY OF SAN LUIS OBISPO,
a municipal corporation and Charter City
By:
UAn 41e w�[
Its: NlQ.ree,r
PALM STREET PARKING
STRUCTURE, LLC, a California limited
liability company
I ui c
Approved as to Form:
By:
J. Christine Dietrick
City Attorney
Approved as to Form:
ByC
Suza ne F er
Gen ral C unsel, Palm Str Parking Structure, LLC