PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.E
SUBJECT/TITLE:
ASSIGNMENT OF WATER PRESALE AGREEMENT RIGHTS FROM CENTRAL
COAST DEVELOPMENT COMPANY TO INTREPID FINANCIAL, LLC
RECOMMENDATION:
Adopt a Resolution approving the assignment of rights under a water presale agreement between the City and Central Coast Development Company to Intrepid Financial, LLC.
BACKGROUND:
In 1992, the City entered into an agreement with Pacific Coast Homes for “pre-sale” of State Water (Attachment 2). The City agreed to request an additional 140 acre-feet of water per year from the State Water Project, above its allocation of 1,100 acre-feet per year, provided Pacific Coast Homes paid the costs for the additional water. The water was intended to be used on property at the northern boundary of Pismo Beach. Pacific Coast Homes later sold the land, and it was ultimately purchased by Gragg Canyon Ranch, LLC. In September 2005, the water presale agreement rights were assigned to Pismo-98, LLC, which later sold 100 acre-feet of its total 140 acre-feet allocation to Central Coast Development Company (CCDC). Pismo-98, LLC later transferred its remaining 40 acre-feet allocation to the City.
Through a settlement agreement entered into between the City and CCDC in October 2022, CCDC transferred 80 acre-feet of its 100 acre-feet allocation to the City without cost. It retained the rights to a 20 acre-feet allocation, but the City is permitted to use the allocation without payment to CCDC until CCDC or its successors in interest pursue development on its property and notify the City of its intent to use the water allocation.
There are additional steps involved that would be needed before the water allocation could actually be used, including approval by the Local Agency Formation Commission (LAFCO). Under Section 2.3 of the settlement agreement (Attachment 3), CCDC also has the right to transfer its allocation with the City’s consent pursuant to the terms of the water pre-sale agreement.
As a result of the pending dissolution of the CCDC partnership, CCDC has requested that the City authorize the transfer of the 20 acre-feet allocation to Intrepid Financial, LLC.
Intrepid Financial, LLC is the current owner of the 154-acre parcel adjacent to the City limits that was previously owned by CCDC, commonly referred to in the past as the “Los Robles del Mar” property. Intrepid Financial, LLC has agreed to be bound by the terms of the settlement agreement, which requires CCDC to either develop the property within 15 years after the effective date of the settlement agreement and use the water allocation, or transfer the remaining allocation to the City without cost. This requested assignment would not extend that 15-year period, and Intrepid Financial would be required to comply with the water pre-sale agreement in all other regards if it wishes to develop the property.
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Conclusion and Recommendation
Staff recommends that the City Council adopt a Resolution (Attachment 1) authorizing the City Manager to execute an agreement (Attachment 1.A) for the assignment of water presale agreement rights from Central Coast Development Company to Intrepid Financial, LLC.
FISCAL IMPACT:
There is no direct fiscal impact to the City from this action.
ALTERNATIVES:
1. Do not approve assignment. This option is not recommended in that there is no basis identified by staff to deny the assignment.
ATTACHMENTS:
1. Resolution authorizing Assignment of Rights and City Approval Agreement
1.A. Exhibit A to Resolution: Assignment of Rights and City Approval Agreement
2. Water Presale Agreement, with Amendment #1 and Amendment #2
3. Settlement agreement between City and Central Coast Development Company Submitted by: Dave Fleishman, City Attorney Meeting Date: April 4, 2023 City Manager Approval:
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RESOLUTION NO. R-2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA APPROVING AN ASSIGNMENT OF RIGHTS UNDER A WATER
PRESALE AGREEMENT BETWEEN THE CITY AND CENTRAL COAST
DEVELOPMENT COMPANY TO INTREPID FINANCIAL, LLC
WHEREAS, the City is party to a water presale agreement with Central Coast Development Company (CCDC) that governs the allocation of 20 acre-feet of State Water Project water for property owned by CCDC;
WHEREAS, due to an impending dissolution of CCDC, CCDC desires to assign all of its rights under the water presale agreement to Intrepid Financial, LLC; and WHEREAS, the water presale agreement requires City consent to any assignment of rights under that agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Pismo Beach that the City Manager is authorized and directed to sign the Assignment of Rights and City Approval agreement to effectuate the assignment of rights under the water presale agreement, in substantially the form attached hereto (Exhibit A).
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 4th day of April 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
Attachment 1
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ASSIGNMENT OF RIGHTS
AND CITY APPROVAL
This Assignment of Rights and City Approval (the "AGREEMENT"), dated February ___, 2023 (the “Effective Date”), is entered into by and between Central Coast Development Company ("CCDC" or “Assignor”), Intrepid Financial LLC (“INTREPID” or “Assignee”), and the City of Pismo Beach (CITY), collectively the PARTIES, on the following terms and conditions:
RECITALS
A. On May 21, 1992 the CITY entered into an agreement with Pacific Coast Homes ("PCH")- the Agreement for Pre-Sale of State Water (the "PCH AGREEMENT"). Under the PCH AGREEMENT, the CITY among other things, (i) agreed to obtain an additional allocation of State of California Water Project water ("STATE WATER") in the amount of 140 acre-feet per year (the "ADDITIONAL ACRE-FEET ALLOCATION"), and (ii) granted to PCH an exclusive right to use the ADDITIONAL ACRE-FEET ALLOCATION on specific property subject to certain conditions.
B. Gragg Canyon Ranch, LLC ("GRAGG CANYON"), as successor to PCH, subsequently assigned all of its right, title, and interest under the PCH AGREEMENT to Pismo- 98, LLC, an Arizona limited liability company ("PISMO-98"). Concurrently with the CITY's consent to the assignment, the CITY, GRAGG CANYON, and PISMO-98 entered into Amendment Number 1 to the PCH AGREEMENT dated as of September 5, 2005, pursuant to which certain real property owned by PISMO-98 was substituted for the real property described in the original PCH AGREEMENT.
C.In 2011, Pismo-98 assigned its right, title, and interest in 100 acre-feet of the Additional Acre-Feet Allocation (the "100 ACRE-FEET ALLOCATION") to CCDC, CCDC agreed to assume PISMO-98's obligations regarding the payment of fixed and variable costs associated with the 100 ACRE-FEET ALLOCATION, and real property owned by CCDC was substituted for the PISMO-98 property. The PCH AGREEMENT, Amendment No. 1, and further amendments and agreements regarding the assignment and assumption of obligations related to the 100 ACREFEET ALLOCATION are referred to herein collectively as the "STATE WATER AGREEMENTS."
D. On November 24, 2015, the CITY filed a Complaint for Breach of Contract and Declaratory Relief against Pacific Harbor Homes, LLC, Pacific Harbor Homes, Inc., and CCDC regarding payments the CITY alleged were due under the STATE WATER AGREEMENTS- City of Pismo Beach v. Pacific Harbor Homes, Inc., et al. (San Luis Obispo County Case No. 15CV0627) (the "LAWSUIT").
E.As a result of the LAWSUIT, through the Settlement Agreement/Amendment to Agreement for Pre-Sale of State Water dated October 4, 2022 (the “October 4, 2022 Amendment”), CCDC agreed to relinquish 80 Acre-Feet of the 100 ACRE-FEET ALLOCATION to the CITY permanently. The rights to the remaining 20 Acre-Feet of the 100 Attachment 1A
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ACRE-FEET ALLOCATION (the “CCDC Allocation”) remain a CCDC asset. CCDC has 15 years from the date of the October 4, 2022 Amendment to use the water on its property (identified in Section F below as the “Intrepid Property”) or otherwise sell the water. If CCDC fails to do so, the rights to the CCDC Allocation automatically revert to the CITY.
F. CCDC is wrapping up and dissolving its business affairs, and intends to assign all of its right, title and interest in the CCDC Allocation to INTREPID. INTREPID is currently the owner of 154 acres of real estate, previously owned by CCDC, which land is adjacent to the CITY (the “Intrepid Property”) and within the City’s Sphere of Influence.
G. Through this AGREEMENT, CCDC, the CITY and INTREPID acknowledge the assignment of the 20 Acre-Feet Allocation, and the CITY provides consent to the assignment as noted herein.
1. ASSIGNMENT
a. For good and valuable consideration, receipt of which is hereby acknowledged, Assignor hereby assigns, transfers and conveys to Assignee, as of the Effective Date, all of Assignor’s right, title and interest in, to and under the Existing Water Pre-Sale Agreement as amended by the October 4, 2022 Amendment between CCDC and the CITY to a 20 Acre-Feet Allocation (collectively, the “Assigned Rights”), which Assigned Rights are intended for use at the Intrepid Property.
b. All representations and warranties of Assignor as set forth in this AGREEMENT are hereby incorporated by reference herein and shall, upon Assignor’s execution hereof, be deemed reaffirmed as of the Effective Date hereof. Assignor further represents and warrants that the existing Water Pre-Sale Agreement dated May of 1992, and as amended thereafter, remains in full force and effect and has not been revoked or nullified in any manner as of the Effective Date of this Agreement. c. Nothing is this AGREEMENT amends the rights of the PARTIES as set forth in the “October 4, 2022 Amendment” or alters the deadlines set forth in section 2.4 of that agreement. Assignee expressly agrees to be bound by the provisions of Sections 2.1, 2.2, 2.3, 2.4, 3.1, 3.2 and 3.3 of the October 4, 2022 Amendment, which are hereby incorporated herein by reference, substituting Assignee’s name for CCDC wherever it appears in those Sections.
d. Assignee, by its execution of this AGREEMENT, hereby accepts the foregoing assignment.
2. CITY AUTHORIZATION
a. In accordance with Section 5 of Amendment No. 1 to the Existing Water Pre-Sale Agreement, the City hereby authorizes and approves assignment of the Assigned Rights to Assignee on the terms and conditions set forth in this AGREEMENT.
The City further agrees that, from and after the Effective Date hereof, the Intrepid Property shall be the “Benefitted Property” as that term is used in the Existing Attachment 1A
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Water Pre-Sale Agreement, as amended, for all purposes related to the CCDC Allocation, and as clarified in the October 4, 2022 Amendment.
b. The City hereby confirms for the benefit of Assignor and Assignee that the existing Water Pre-Sale Agreement dated May of 1992, and as amended thereafter, remains in full force and effect and has not been revoked or nullified in any manner as of the Effective Date of this AGREEMENT.
c. The Parties further acknowledge and agree, and warrant for the benefit of Assignee, that the Assignment consideration to be paid to Assignor is in the form of cancellation of certain debt owed by Assignor to Assignee, and does not constitute “profiteering” within the terms of Section 5 of Assignment Number 1 to the Existing Water Pre-Sale Agreement.
3. MISCELLANEOUS
a. Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.
b. Successor and Assigns. This AGREEMENT shall be binding on and inure to the benefit of the PARTIES hereto and their respective successors and assigns. c. Headings. The headings to paragraphs of this AGREEMENT are for convenient reference only and shall not be used in interpreting this AGREEMENT. d. California Law. This AGREEMENT shall be governed by and interpreted in accordance with the laws of the state of California. Venue for any dispute over this AGREEMENTshall be in the Superior Court of the County of San Luis Obispo. {signatures begin on following page]
Attachment 1A
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ASSIGNOR: CITY:
Central Coast Development Company, City of Pismo Beach, a a California general partnership municipal corporation
By: Pacific Harbor Homes, LLC, a By: __________________________ California limited liability company, Ed Waage, Mayor Partner
By: Pacific Harbor Homes, Inc. Attest:
A California corporation, managing member
By: ________________________________ By: __________________________ Darin Kruse, President City Clerk
By: Dolphin Development Company, Inc.
A California corporation,
Partner
By: ________________________________
Darin Kruse, President
ASSIGNEE:
Intrepid Financial, LLC, a
Delaware limited liability company
By: _____________________________________
Darin Kruse, Managing Member
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l y
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PJD DAiE
atenlion:
Pau C-41
AMENDMENT NUMBER 2
AGREEMENT FOR PRE-SALE OF STATE WATER Or(' ~
BETWEEN
THE CITY OF PISMO BEACH
AND
PACIFIC COAST HOMES
WHEREAS, on May 21, 1992, the City of Pismo Beach entered into an agreement for pre-sale of State water with Pacific Coast Homes("AgreemenY'), which was amended by A,mendment Number 1 on September 8, 2005 ("Amendment Number 1") ;and WHEREAS,the current successor in interest to the Agreement is Pismo-98, LLC; and WHEREAS, Pismo-98, LLC has agreed to assign a portion of its rights under the 4greement to Central Coast Development Company; and
WHEREAS, Central Coast Development Company is the owner of certain real prc perty commonly known as the Los Robles del Mar Property, a property currently within i he City's sphere of influence; and
WHEREAS, the Ciry of Pismo 8each does not object to this assignment, and WHEREAS,the parties desire to clarify several provisions of the original agreement to reflect the partial assignment,
NOW, THEREFORE, the parties hereto agree as follows:
1. Transfer of Water:
Pismo-98, LLC ("Pismo-98") has assigned, and the City has approved the assignrnent of, one hundred (100)acre-feet of the Additional Acre Feet (as defned in the Agreement)to Central Coast DeGelopment Company. From the effective date of this Amendment#2, Pismo-98, or a Pismo-98 Related Entity(as defined in Amendment Number 1), shall have the right to use 40 acre-feet of the Additional Acre Feet in connection with the Preserve Property (hereinafter referred to as"Remairiing Additional Acre Feet"). Any Remaining Additional Acre Feet not utilized in connection with the Preserve Property may be used by Pismo-98 or a Pismo-98 Related Eritity in connection with any other properiy which is either: 7)within the boundaries of the City; or 2)within the boundaries of the City's sphere of influence, provided it ia ultimately annexed to the City prior to use of the Remaining Additional Acre Feet. Pismo-9F3 shall also have the right to sell or assign its rights under this Agreement to an'unrelated thirci party as to the Remaining Additional Acre Feet not utilized in connection with the Preserve Pvoperty, subject to the provisions of Paragraphs 4 and 5 of Amendment Number 1.
2. PCH Water Fund:
Upon the earlier of September 15, 2011 or the closing of the assignment by Pismo-98 to Central Coast Development Company, Pismo-98 shall provide the City with a cash deposit or an irrevocable line of credit sufficient to cover one year's estimated debt service on the Remaining Additional Acre-Feet, and it shall maintain such level of deposit or credit until the ciebt service is fully paid. As of the date of this Amendment Number 2, the amount of one year's estimated II
d C't I T f n f n C f A!i/l I/M vP'l I
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debt service is$40,000. Should Pismo-98 fail to maintain such level of deposit or credit, upon request of City, Pismo-98 shall provide the City with a cash deposit or an irrevocsible lirie of credit sufficient to cover two years' estimated debt service on the Remaining Additional Acre- Feet.
3. Emer encv Water:
The City shall only be entitled to use any portion of the Remaining Additional Acre Feet not already being used by Pismo-98 or a Pismo-98 Related Entity, in the event of a water emergency(as defined in Amendment Number 1), in which case the City may purchase water pursuant to the terms of Paragraph 10 of the Agreement at the emergency basis water rate set forth in Amendment Number 1.
4. Continuation of Aqreement:
Except as set forth herein, all other terms and conditions of the Agreement, as amended by Amendment Number 1, shall remain in full force and effect. To the extent the terrns of this Amendment Number 2 conFlict with the terms of the Agreement, as amended by>mendment Number 1, the Terms of this Amendment Number 2 shall govern.
5. Effective Date:
This agreement shall be effective upon the date executed by all parties.
Dated: f 27 ( Pismo-98, LLC
Y v /
Brad ild , Manager
Dated:(IZo(! CityofPis oBeach
6a.
Shelly Hi inboth rv', Mayor
Attachment 2
Council Agenda 4-4-2023 9.E-41
SETTLEMENT AGREEN1ENT/AMENDMENT TO AGREEMENT FOR PRE-SALE OF
STATE WATER
This Agreement (the "AGREEMENT"), dated October 4, 2022, is entered into by and between Pacific Harbor Homes, LLC, Pacific Harbor Homes, Inc., and Central Coast Development Company ("CCDC") on the one hand, and the City of Pismo Beach (CITY) on the other hand, collectively the PARTIES. on the following terms and conditions:
RECITALS
A. On May 21, 1992 the CITY entered into an agreement with Pacific Coast Homes ("PC1-1")—the Agreement for Pre-Sale of State Water (the "PCH AGREEMENT"). Under the PCH AGREEMENT, the CITY among other things, (i) agreed to obtain an additional allocation of State of California Water Project water ("STATE WATER") in the amount of 140 acre-feet per year (the "ADDITIONAL ACRE-FEET ALLOCATION"), and (ii) granted to PCII an exclusive right to use the ADDITIONAL ACRE-FEET ALLOCATION on specific property subject to certain conditions.
13. Gragg Canyon Ranch, LLC ("GRAGG CANYON"), as successor to PCH. subsequently assigned all of its right, title. and interest under the PCH AGREEMENT to Pismo-
98. LLC. an Arizona limited liability company ("PISMO-98"). Concurrently with the CITY's consent to the assignment. the CITY, GRAGG CANYON, and PISMO-98 entered into Amendment Number I to the PCH AGREEMENT dated as of September 5. 2005, pursuant to which certain real property owned by PISMO-98 was substituted for the real property described in the original PCII AGREEMENT.
C. In 2011, Pismo-98 assigned its right, title, and interest in 100 acre-feet of the Additional Acre-Feet Allocation (the "100 ACRE-FEET ALLOCATION") to CCDC, CCDC agreed to assume PISMO-98's obligations regarding the payment of fixed and variable costs associated with the 100 ACRE-FEET ALLOCATION, and real property owned by CCDC was substituted for the PISMO-98 property. The PCH AGREEMENT, Amendment No. 1, and the agreements regarding the assignment and assumption of obligations related to the 100 ACRE- FEET ALLOCATION are referred to herein collectively as the "STATE WATER AGREEMENTS."
D. On November 24, 2015, the CITY filed a Complaint for 13reach of Contract and Declaratory Relief against Pacific Harbor Homes, LLC, Pacific Harbor Homes. Inc., and CCDC (collectively "DEFENDANTS") regarding payments the CITY alleged were due under the STATE WATER AGREEMENTS--City of Pismo Beach v. Pacific Harbor Hotnes, Inc.. et al. (San Luis Obispo County Case No. 15CV0627) (the "LAWSUIT"').
E. DEFENDANTS and the CITY now wish to settle their differences with respect to the LAWSUIT, and amend their obligations under the STATE WATER AGREEMENTS.
NOW, THEREFORE, in consideration of the foregoing recitals and the promises, mutual covenants and warranties set forth herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
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TERMS OF SETTLEMENT
1. Assignment of 80 Acre-Feet of the 100 ACRE-FEET ALLOCATION to CITY CCDC hereby transfers and assigns to CITY permanently and without cost. and the CITY hereby accepts. CCDC's interest in 80 acre-feet of the 100 ACRE-FEET ALLOCATION.
2. CCDC Retains Right to 20 Acre-Feet of the 100 ACRE-FEET ALLOCATION
2.1. The remaining 20 acre-feet of the 100 ACRE-FEET ALLOCATION shall remain a CCDC asset (the CCDC ALLOCATION"). However, until CCDC notifies CITY under paragraph 3.1 below that CCDC intends to use the CCDC ALLOCATION (if and when the CCDC development is approved by the County of San Luis Obispo, or another agency), CITY may use the CCDC ALLOCATION as it sees lit, without notice or payment to CCDC.
2.2. All costs and obligations associated with the CCDC ALLOCATION shall be borne by the CITY, until such date as CCDC notifies the CITY under paragraph 3.1 below that CCDC intends to use the CCDC ALLOCATION, or any portion thereof From that date forward, CCDC shall be obligated to pay both fixed and variable costs associated with the CCDC ALLOCATION. as contemplated in the STATE WATER AGREEMENTS.
2.3. If CCDC decides not to pursue development of its property. if another source of water is located, or for any other reason, CCDC may sell or transfer the CCDC ALLOCATION pursuant to the terms of the STATE WATER AGREEMENTS.
2.4. If CCDC does not, however, develop its property within fifteen (15) years of the date of this AGREEMENT, or fbr any reason fails to call for, sell, or transfer the CCDC ALLOCATION within that 15-year period, then all rights, title, and interest in the CCDC ALLOCATION shall automatically revert to CITY permanently, and at no charge to either party.
3. CCDC's Use of the CCDC ALLOCATION
3.1. lf and when CCDC wants access to the CCDC ALLOCATION for use on CCDC's property, it must notify the CITY, in writing, before October Ist of the preceding year.
The notice must be in writing and delivered to the CI'I'Y clerk, with copies to the CITY's City Attorney, City Manager, and Director of Public Works/City Engineer.
3.2. If and when CCDC notifies the CITY as described in paragraph 3.1. the CITY will make the CCDC ALLOCATION available to CCDC through use of the CITY's existing infrastructure, as allowable by law. The PARTIES recognize that approvals from the San Lois Obispo Local Agency Formation Commission ("LAFCO"), or other agencies. may be necessary to allow delivery of the CCDC ALLOCATION to CCDC or its transferee. Any applications to LAFC0, or any other agency, shall be the sole responsibility of CCDC and at the sole cost of CCDC. The CITY shall not object or oppose any application to allow delivery of the CCDC ALLOCATION that is consistent with this AGREEMENT.
33. The PARTIES also recognize that additional infrastructure may be required to allow for delivery of the CCDC ALLOCATION. Any additional infrastructure that is I 2R72-000&272.3624v I .cinc
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needed to facilitate delivery of the CCDC ALLOCATION will be the sole responsibility of CCDC. The CITY will not construct, nor be responsible tbr the constructing, any additional infrastructure for the sole benefit of CCDC, or its successor in interest.
4. WaiveriRelease
The CITY has alleged in the LAWSUIT that DEFENDANTS owe CITY past due amounts of fixed and variable costs of the 100 ACRE-FErf ALLOCATION. In response DEFENDANTS have alleged that the CITY used a portion of the 100 ACRE-FEET ALLOCATION without notice or payment to DEFENDANTS.
Effective as of the date of this AGREEMENT. the PARTIES waive any right to recover any amounts potentially owed to the other for costs associated with the 100 ACRE-FEET ALLOCATION through the date of this AGREEMENT. The PARTIES expressly waive any and all provisions, rights, and benefits conferred by Calitbmia Civil Code section 1542 or any law of any state or territory of' the United States, or principle of common law, which is similar. comparable. or equivalent to the provisions of California Civil Code section 1542, including that provision itself, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT. IF KNOWN BY HIM OR TIER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
The PARTIES intend, in executing this AGREEMENT and doing the acts called for herein, that this AGREEMENT constitutes a full and final accord and satisfaction and settlement of and a bar to each and every item hereby released. In connection with such waiver, the PARTIES acknowledge that they are aware that they may hereafter discover facts different from or in addition to the facts they now know or believe to be true.
5. Dismissal With Prejudice
Within ten (10) court days of this AGREEMENT being fully executed by the PARTIES the CITY will request dismissal of the LAWSUIT, with prejudice.
6. Costs and Fees
Each party shall bear its own costs and attorneys' fees.
7. Representations and Warranties
7.1. This AGREEMENT contains the sole and entire agreement and understanding of the PARTIES with respect to the entire subject matter of this AGREEMENT. and any and all prior discussions, negotiations, commitments, or understandings related to this AGREEMENT, if any, are merged in this AGREEMENT. No representations, oral or otherwise, express or implied, other than those contained in this AGREEMENT, have been or shall be -3-
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deemed to have been made by any party. This AGREEMENT may not be amended, canceled, revoked or otherwise modified except by written agreement executed by all PARTIES.
7.2 The advice of legal counsel has been obtained by each of the PARTIES prior to the execution of this AGREEMENT. A responsible director, officer, board member or elected official of each party has read this AGREEMENT and understands the contents hereof. Each party represents that it is fully able to comply with the terms of the AGREEMENT and will he remain able to comply with said terms for the foreseeable future. Each director. officer. hoard member or elected official executing this agreement on behalf of such party is empowered to do so and to thereby bind said party. Each of the PARTIES hereby executed this AGREEMENT voluntarily.
7.3 The PARTIES represent and warrant that no part of any claim or cause of action which it had. has. or might have, arising out of, or in any way related to. the matters that are the subject of this AGREEMENT, has been assigned or transferred in any manner to any other person or entity not a party to this AGREEMENT.
Enforcement of Settlement
In any proceeding to enforce any rights and/or construe any obligations under this AGREEMENT, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs in connection therewith, including reasonable attorneys' fees and costs relating to any and all appeals or petitions taken with respect to any such action or proceeding.
9. Interpretation
The various headings of the par►graphs of this AGREEMENT have been inserted for convenience of reference only and shall not affect the meaning or interpretation of this AGREEMENT or any of its provisions.
The Court shall retain jurisdiction to enforce the terms of this AGREEMENT. pursuant to Code of Civil Procedure section 664.6. This AGREEMENT shall he interpreted and enforced in accordance with the laws of the State of California, provided that no provision of this AGREEMENT shall be interpreted for or against a party because that party or parties' legal representative drafted such provision, and that this AGREEMENT shall he construed as if jointly prepared by the parties.
10. Severability
If any part of this AGREEMENT is determined or adjudicated to be invalid. unenforceable. or void for any reason whatsoever. each such part shall be severed from the remaining parts, and shall not affect the validity or enforceability ol'such remaining parts.
I I. Counterparts
This AGREEMENT may be executed in one or more counterparts. each of which shall be deemed an original. A facsimile or electronic signature shall be deemed to be the equivalent of -4-
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the actual signature. All counterparts so executed shall constitute one AGREEMENT bindinn all the parties hereto.
DATED: October . 2021 LAW OFFICE OF K.M. NEISWEN DER
By:
Kate Neiswendcr
Attorneys fir Defendants Pacific Harbor Homes, Inc.,
Pacific Harbor Homes, LLC, and Central Coast
Development Company
DATED: October 6-, 2022
DATED: October 10 2022
DATED: October (0, 2022
2812-UOUtr.2723424 v .dm:
Pacific
LLC,
By;
Inc., Pacific Harbor Homes,
ast Development Company
President of Pac ic Harbor Homes, Inc.. and Central
Coast Development Company
011,01)6Ii A PRAWN a 'PPM U.
RICHARDS WATSON & GERSHON
A Professional Corporation
By:
David ian
Attorneys for Plaintiff
CITY OF PISMO BEACH
CITY OF PI 0 BEACH
By:
CITY F S 0 BEACH
-5-
Attachment 3
Council Agenda 4-4-2023 9.E-46
the actual signature. All counterparts so executed shall constitute one AGREEMENT binding all the parties hereto.
DATED: October . 2022
DATED: October 6 - , 2(.122
DA'L'E 10D: October . 2022
DATED: October , 2022
28?.1-1:000 2 i23624r1.do:
1C' K.M. ENDER
Kate Neis er
Attorneys for I efendams Pacific Harbor Homes, Inc.,
Pacific Ilarbor homes, LLC, and Central Coast
Development Company
Pacific
LLC,
B
Inc., Pacific Harbor Homes,
oast Development Company
President of Pack Harbor Homes, Inc.. and Central
Coast Development Company " .
ITMANSLCA 4)42:1710\ f41 111
RicHARDs WATSON & CiERSHON
A Professional Corporation
13v:
DaVid 'els man
Attorneys for Plaintiff
CITY ()I: PISMO BEACH
CITY OF PISMO BEACII
I3v:
CITY OF PISMO BEACH
Attachment 3
Council Agenda 4-4-2023 9.E-47