SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims (hereinafter “Settlement Agreement”) is entered into by and between Shefflin Old Mill, LLC and Old Mill Meier, LLC (collectively herein “Old Mill”), Holladay City, a political subdivision of the State of Utah, (“Holladay”), Sequoia Development, Inc. (“Sequoia”), and Canyon Slope Development, LLC (“Canyon Slope”).
RECITALS
A. Sequoia is the developer of a hotel and retail project (herein the “Project”) with respect to certain property owned by Canyon Slope and located at approximately 6300 South and 3000 East in Holladay City, Utah, which property is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the “Property”).
B. In connection with the development of the Project on the Property Sequoia [and Canyon Slope] have applied to Holladay and other governmental agencies and departments for various entitlements, permits and approvals (collectively the “Entitlements”) that are necessary
for the development of the Project.
C. In connection with pursuing such Entitlements Sequoia received site plan approvals for the Project which approvals included approval of the location, number and configuration of the parking and contemplated traffic elements of the Project.
D. Old Mill is the owner of property adjacent to the Property (the “Old Mill Property”) as more particularly described on Exhibit “B” attached hereto and incorporated herein by this reference upon which is located two office buildings and related parking, landscaping and other improvements, referred to herein as Old Mill I which is located on the West side of the Old Mill Property and Old Mill II which is located on the East side of the Old Mill Property.
E. In connection with Sequoia’s and Canyon Slope’s application for various Entitlements Old Mill objects to various elements of the Project, and Old Mill has asserted various claims and rights with respect to access to the Old Mill Property over and across the Property (collectively the “Objections and Claims”).
F. On June 17, 2011 Old Mill filed a timely Appeal before the 3rd District Court, State Of Utah, Case No. 110914711, (herein the “Lawsuit”) contesting certain approvals granted by Holladay and its Planning Commission with respect to the Project in which Old Mill has asserted certain of, but not all of, its Objections and Claims.
G. Sequoia, Canyon Slope, Holladay and Old Mill have reached a compromise and
settlement both (i) with respect to the Objections and Claims and (ii) with respect to the Lawsuit. H. The parties to this Settlement Agreement desire to compromise and settle all past disputes and differences between them relating the Objections and Claims and the Lawsuit.
I. The parties to this Settlement Agreement understand that they each may be waiving significant legal rights or claims by signing this Settlement Agreement, and voluntarily enter into this Settlement Agreement with the full and complete understanding of its terms and legal effect, and with the intent to be bound thereby.
NOW, THEREFORE, in consideration of the promises and mutual promises herein contained, the adequacy of which the parties acknowledge, the parties agree as follows:
AGREEMENT
1. Dismissal with Prejudice. Within three (3) business days after the execution of this Settlement Agreement, Old Mill and Holladay, through their respective counsel, shall execute and cause to be filed in the Third Judicial District Court of Salt Lake County, State of
Utah, a Stipulation of Dismissal with Prejudice in the form attached hereto as Exhibit C and a proposed Order of Dismissal with Prejudice in the form attached hereto as Exhibit D.
2. Payment of Funds. Sequoia will pay Old Mill the sum of $20,000, in
installments as specified in paragraph E of Exhibit “E” attached hereto,
Future Performance Items, and incorporated herein by this reference.
3. Release by Old Mill. In consideration of the promises and covenants contained in this Settlement Agreement, including but not limited to the payment of funds referenced in Paragraph 2 above and the future performance items required of Old Mill, Sequoia, Canyon Slope and Holladay, respectively, as more particularly described on Exhibit “E” (herein collectively the “Future Performance Items”), Old Mill and all of its owners, partners, joint venturers, principals, agents, officers, directors, representatives, attorneys, successors, and assigns, and the like, and each of them, does hereby unconditionally release and forever discharge (i) Holladay and its Mayor, the members of it City Council, the members of its Planning Commission, its economic development, planning and zoning staff, its city attorney and all other employees of Holladay; and (ii) Sequoia, and all of its partners, joint venturers, principals, employees, agents, officers, directors, representatives, attorneys, successors, assigns, and the like, from and against any and all Objections and Claims and all obligations, debts, damages, claims, demands, suits, controversies, losses, costs, fees and expenses and liabilities whatsoever that Old Mill may have or claim to have or assert against them by reason of or arising out of or in any way connected with the Project and the Property, including, without limitation, the claims made in the Lawsuit, and all other claims whether they may be known or unknown, anticipated or unanticipated; provided, however, that Old Mill’s release herein shall not operate as a release or waiver of any claims or defenses that Old Mill may have against
Holladay and Sequoia relating to the future performance by Holladay, Canyon Slope and Sequoia of the terms, agreements and covenants of this Settlement Agreement. Furthermore, this release includes any and all users regarding that certain right-of-way/easement purportedly granted to Salt Lake County by the U.S. Forest Service dated July 16, 1999, which has subsequently been transferred to Holladay City by virtue of its incorporation.
4. Release of Old Mill. In consideration of the promises and covenants contained in this Settlement Agreement, including but not limited to the payment of funds referenced in paragraph 2 above and the Future Performance items required of Old Mill, Sequoia, Canyon Slope and Holladay, respectively, as more particularly described on Exhibit “E” attached hereto and incorporated herein by this reference, Sequoia, Canyon Slope and all of their partners, joint venturers, principals, employees, agents, officers, directors, representatives, attorneys, successors, assigns, and the like, and each of them, does hereby unconditionally release and forever discharge Old Mill and all of its owners, partners, joint venturers, principals, agents, officers, directors, representatives, attorneys, successors, and assigns, and the like from and against any and all obligations, debts, damages, claims, demands, suits, controversies, losses, costs, fees and expenses and liabilities whatsoever that Sequoia and Canyon Slope may have or claim to have or assert against them by reason of or arising out of or in any way connected with the Project and the Property, including, without limitation, the claims made in the Lawsuit, and all other claims whether they may be known or unknown, anticipated or unanticipated; provided, however, that Sequoia’s and Canyon Slope’s release herein shall not operate as a release or waiver of any claims or defenses that Sequoia and Canyon Slope may have against Old Mill relating to the future performance by Old Mill of the terms, agreements and covenants of this Settlement Agreement.
5. No Admission of Liability. This Settlement Agreement is reached as a compromise of disputed claims and is not and shall not be construed to be an admission of liability by any party hereto.
6. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior representations and understandings of the parties. No modification or amendment of this Settlement Agreement shall be binding, unless executed in writing by the parties.
7. No Representation of Fact or Opinion. Each party to this Settlement Agreement admits that this Settlement Agreement has been entered into freely and with the advice of counsel and that no representations of fact or opinion have been made by either party or by anyone acting in their behalf to induce this compromise with respect to the nature of their claims and damages.
8. Attorneys’ Fees. Each party to this Settlement Agreement shall bear its own attorneys’ fees and costs incurred in this matter. In any action brought to enforce any provision of this Settlement Agreement, in addition to any other relief granted, the prevailing party shall recover its reasonable costs of enforcement, including but without limitation, costs and attorneys’ fees incurred therein.
9. Counterparts and Facsimile Signature Pages. This Settlement Agreement may be signed in multiple original counterparts and facsimile or electronically transmitted signature pages shall have the same binding effect as original signature pages.
10. Binding Effect. This Settlement Agreement will be binding upon the parties hereto and their respective successors and assigns.
Shefflin Old Mill, LLC
By: _________________________________ Print: _______________________________ Its: _________________________________ Date: _______________________________
Old Mill Meier, LLC
By: _______________________________ Print: _____________________________ Its: _______________________________ Date: _____________________________
Sequoia Development, Inc.
By: _______________________________ Print: _____________________________ Its: _______________________________ Date: _____________________________ Canyon Slope Development, LLC.
By: _______________________________ Print: _____________________________ Its: _______________________________ Date: _____________________________
Holladay City
By: _______________________________ Print: _____________________________ Its: _______________________________ Date: _____________________________
EXHIBIT A To
Settlement Agreement Property
Certain real property located in Salt Lake County, Utah and more particularly described as follows:
EXHIBIT B To
Settlement Agreement Old Mill Property
Certain real property located in Salt Lake County, Utah and more particularly described as follows:
EXHIBIT C To
Settlement Agreement
H. CRAIG HALL (1307) Holladay City Attorney 655 West Center Street Midvale, Utah
Telephone: (801) 567-7251 Facsimile: (801) 567-0518
IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH SHEFFLIN OLD MILL, LLC, a Delaware
limited liability company, and OLD MILL MEIER, LLC, a Delaware limited liability company,
Petitioners, vs.
HOLLADAY CITY, a Utah municipal corporation and HOLLADAY CITY
PLANNING COMMISSION, an administrative body of Holladay City,
Defendants.
JOINT MOTION FOR DISMISSAL WITH PREJUDICE
Court Case No. 110914711
Judge Royal Hansen
Pursuant to Rule 41(a) of the Utah Rules of Civil Procedure, Plaintiffs Shefflin Old Mill, LLC and Old Mill Meier, LLC (collectively “Old Mill”) and Defendant Holladay City (“Holladay”) jointly move the Court for an Order dismissing with prejudice each and every cause of action asserted by Old Mill and by Holladay in the above-captioned matter. Each party shall bear its own costs and attorneys’ fees.
DATED this ___ day of December, 2011.
John R. Barlow
MITCHELL & BARLOW, P.C. 6465 South 3000 East, Suite 203 Salt Lake City, Utah 84121
Attorneys for Shefflin Old Mill, LLC and Old Mill Meier, LLC
H. Craig Hall
Holladay City Attorney 655 West Center Street Midvale, Utah 84047
CERTIFICATE OF SERVICE
I hereby certify on this ____ day of December, 2011, that I caused to be mailed, via U.S. mail, postage prepaid, a true and correct copy of JOINT MOTION FOR DISMISSAL WITH PREJUDICE, to the following:
J. Ryan Mitchell John R. Barlow Andrew V. Collins
MITCHELL & BARLOW, P.C. 6465 South 3000 East, Suite 203 Salt Lake City, Utah 84121
Attorneys for Shefflin Old Mill, LLC and Old Mill Meier, LLC
EXHIBIT D To
Settlement Agreement
H. CRAIG HALL (1307) Holladay City Attorney 655 West Center Street Midvale, Utah
Telephone: (801) 567-7251 Facsimile: (801) 567-0518
IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH SHEFFLIN OLD MILL, LLC, a Delaware
limited liability company, and OLD MILL MEIER, LLC, a Delaware limited liability company,
Petitioners, vs.
HOLLADAY CITY, a Utah municipal corporation and HOLLADAY CITY
PLANNING COMMISSION, an administrative body of Holladay City,
Defendants.
ORDER OF DISMISSAL WITH PREJUDICE
Court Case No. 110914711
Judge Royal Hansen
Pursuant to Rule 41(a) of the Utah Rules of Civil Procedure, and based upon the Joint Motion for Dismissal with Prejudice, and for good cause shown,
IT IS HEREBY ORDERED that:
1. Each and every claim in the above-captioned action by Plaintiff Shefflin Old Mill, LLC and Old Mill Meier, LLC and Defendant Holladay City is dismissed with prejudice.
DATED this ______ day of December, 2011.
BY THE COURT:
__________________________________ THIRD DISTRICT JUDGE
Approved as to form:
__________________________________ J. Ryan Mitchell
John R. Barlow Andrew V. Collins
MITCHELL & BARLOW, P.C. 6465 South 3000 East, Suite 203 Salt Lake City, Utah 84121
Attorneys for Shefflin Old Mill, LLC and Old Mill Meier, LLC
H. Craig Hall
Holladay City Attorney 655 West Center Street Midvale, Utah 84047
CERTIFICATE OF SERVICE
I hereby certify on this ____ day of December, 2011, that I caused to be mailed, via U.S. mail, postage prepaid, a true and correct copy of JOINT MOTION FOR DISMISSAL WITH PREJUDICE, to the following:
J. Ryan Mitchell John R. Barlow Andrew V. Collins
MITCHELL & BARLOW, P.C. 6465 South 3000 East, Suite 203 Salt Lake City, Utah 84121
Attorneys for Shefflin Old Mill, LLC and Old Mill Meier, LLC
Exhibit “E” To
Settlement Agreement Future Performance Items A. Access:
1. In connection with the development of the Project Sequoia will construct at its expense a sidewalk and stairs from the hotel property to the parking lot of the Trio restaurant. The sidewalk will have directional signs and sufficient lighting to satisfy the requirements of Holladay City. The exact location of the stairs to the Trio parking lot will be mutually determined during grading of the Project site. The proposed sidewalk with approximate locations will be added to the approved construction site plan. All work performed will be accomplished in a timely manner. In connection with the performance of such work, lien waivers will be obtained such that no liens will be filed with respect to the Old Mill property.
2. In connection with the development of the Project Sequoia will take such actions as shall be necessary to make the access from 6200 South through the Project (the “Access Road”) a public road, subject only to the approval and acceptance thereof by Holladay City. Holladay City agrees to take such steps as are required by applicable law for Holladay City to accept the Access Road as a dedicated public road subject only to completion of the road to Holladay City standards and acceptance by the Holladay City Council of the road dedication.
3. Old Mill will take such actions as shall be necessary to make the North/South road between Old Mill 1 and Old Mill 2 a public road as well as the East/West road between the Trio restaurant and the Residence Inn a public road, subject only to the approval and acceptance thereof by Holladay City. Sequoia will assist Old Mill in seeking necessary approvals from the lender of the Old Mill properties by providing at Sequoia’s cost the engineering services and legal descriptions of the proposed public roads to facilitate Old Mill’s lender giving a partial release of the property for the aforementioned roads.
4. Holladay City agrees to accept such North/South road and the East/West road as public roads. Acceptance by Holladay City is subject to completion of the North/South road and the East/West road to Holladay City standards and acceptance by the Holladay City Council of the road dedication. After acceptance Holladay City will bear the cost to maintain the North/South road and East/West road.
5. Old Mill and Holladay City will work with the owner of the Marriott Residence Inn and their lender, if required, to obtain their agreement to the dedication of the south half of
the East/West road as a public road. Holladay City will work with the owners of the Marriott Residence Inn pointing out the interest the City has in taking over the roads. 6. The Access Road, the North/South Road and the East/West Road will all be dedicated by
Old Mill and Canyon Slope to the City simultaneously. A copy of the proposed Road Dedication Plat is attached hereto as Attachment #1.
7. The City or Sequoia will repave the North/South Road and resurface the East/West Road as directed by Holladay City. Old Mill will not incur the construction costs of repaving or resurfacing either the North/South or the East/West roadway. All work will be done timely. In connection with the performance of such work, lien waivers will be obtained such that no liens will be filed with respect to such work. Upon dedication and
acceptance of the roads by Holladay City Old Mill will not be responsible for future maintenance costs of these two roads.
B. Parking Stalls and Connecting Driveway:
Sequoia will install and construct, at its cost and expense, the following parking stalls at the locations shown on Map #1 attached hereto. It is understood and agreed that the number of parking stalls in each of the areas discussed below is approximate and that the size of stalls must comply with proper building codes which sizing accordingly, will determine the final number of stalls that will fit in an identified area. As such the final number of stalls may slightly deviate up or down from the numbers specified below:
(i) Approximately 6 new parking stalls east of the Old Mill #1 dumpster and west of the access road from 6200 South. These stalls will be signed and posted as “Office Parking Only. Violators towed at owners expense.”
(ii) Approximately 12 new parking stalls east of the access road from
6200 South and west of the 1st existing light pole on the north side of Old Mill #2. Three of these stalls will be signed and posted as “Office Parking Only. Violators towed at owners expense.” The remaining nine stalls will be for the mutual use of the Project and Old Mill.
(iii) Approximately six new parking stalls east of the 2nd light pole on the north side of Old Mill #2. These stalls will be for the mutual use of the Project and Old Mill.
(iv) All parking stalls shall be properly striped.
(v) Old Mill and Canyon Slope will allow and facilitate a new driveway connection to be established between the Canyon Slope parking and the Old Mill parking not more than twenty (20) feet in width from face of curb to face of curb at the far east
end of the Project to allow for emergency vehicles, first responders, and other traffic to circulate from the Project to the Old Mill property and vice versa as depicted on Attachment #2 attached hereto. Construction costs of the new connection will be paid by Sequoia. Old Mill and Canyon Slope agree to mutual access to each property through such new driveway. Sequoia will direct the title company to prepare a cross easement agreement to be executed by Old Mill and Canyon Slope to facilitate the new driveway.
(vi) Old Mill will maintain the six new parking stalls west of the access road.
(vii) Canyon Slope will maintain the approximately eighteen new parking stalls east of the access road.
(viii) Canyon Slope a will maintain and pay maintenance/repair
expenses such as resurfacing, restriping, and snow removal of the driveway on the north side of Old Mill #2.
(ix) All new parking spaces located on the Old Mill Property remain the sole and exclusive property of Old Mill and accordingly all real estate taxes, insurance and utilities will be paid by Old Mill.
C. Costs:
The City will utilize City Attorneys to draft necessary documents for the dedication of the Access Road, the North/South Road and the East/West road and for preparation of settlement documents relating to the Settlement Agreement. Sequoia will assist Old Mill in seeking necessary approvals from the lender of the Old Mill properties by providing at its cost and expense the engineering and legal descriptions of the proposed public roads. Sequoia will also assist Old Mill by reimbursing Old Mill for previously paid legal, title and escrow expenses of the Old Mill lender up to a maximum of $5,000.00.
D. Water Line:
In connection with the development of the Project, the parties to the Settlement Agreement understand and agree that Sequoia will install a new water line in the North/South Road between Old Mill #1 and #2. The water line will be installed by an excavation contractor chosen by Sequoia and to Salt Lake City Utilities specifications. Salt Lake City Utilities will also conduct inspections. Sequoia will provide Old Mill advance notification that
construction will be commencing. There should be no disruption of water services to Old Mill. However, in the case of an emergency or discovery that water service needs to be shut off, Canyon Slope or Sequoia will give advance notice to Old Mill and the tenants of Old
Mill. The contractor will “hot tap” the water line making it a seamless operation in terms of water service. Although excavation will occur in the driveway area, the excavation will not be of such scope as to stop traffic flow or preclude use of the parking lot. While there will be some occupancy of a portion of the Old Mill parking/driveway areas during the excavation and line placement work, tenants and their guests will nevertheless be able to access the Old Mill parking lot and park their vehicles in order to visit the Old Mill buildings during the excavation and water line placement work. The approximately nine (9) parallel parking spaces that currently exist in the North/South road will not be available for employees or guests during the water line installation not to exceed two weeks. When the road is repaved with asphalt, traffic will be diverted through the Old Mill parking lot. Sequoia will direct the contractor that they are not to leave equipment parked overnight on the Old Mill property. E. Payment to Old Mill:
Sequoia will pay Old Mill $20,000, as contemplated by the Settlement Agreement. Payment shall be made in three installments as follows. The first installment of $10,000 will be made upon the contemporaneous execution and delivery of the Settlement Agreement and the Joint Motion for Dismissal with Prejudice. A second installment of $5,000 will be made upon the earlier of 12 months following the execution and delivery by Old Mill of the Settlement Agreement and the Joint Motion for Dismissal with Prejudice or upon the closing of the sale of the second retail pad within the Project. The third and final installment of $5,000 will be made upon the dedication by Old Mill of the roads to Holladay City called for in Paragraph A, 6 of this Exhibit “E”. Sequoia will execute and deliver to Old Mill upon the execution and delivery of the Settlement Agreement and the Joint Motion for Dismissal with Prejudice, a promissory note in the principal amount of $10,000, with interest at 3% per annum
evidencing the obligations of the second and third installment, which note will be extinguished and of no further force or effect upon the payment of the second and third installments.
Attachment #1 To Exhibit E
Proposed Road Dedication Plat
Attachment #2 To Exhibit E
