17-1110_URBAN VILLAGE DEVELOPMENT COMPANY, LLC_Settlement Agreement SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims (the "Agreement") is entered
into on November 10, 2017, by and between Urban Village Development Company,
LLC, and Urban Capital Ventures, LP (collectively, "Urban Village"), on one hand, and
the City of San Juan Capistrano and the City Council of the City of San Juan Capistrano
(collectively, "City") on the other hand.
RECITALS
A. WHEREAS, Urban Village and the City (collectively referred to as the
"Parties") have been involved in various legal disputes, identified below, concerning
Urban Village's proposed mix-use development project ("Project") located within the
City.
B. WHEREAS, the Parties are currently engaged in a civil action in the
Orange County Superior Court, entitled Save Our Historic Town Center ("SOHTC'), et
al. v. City of San Juan Capistrano, et al., Case No. 30-2014-00760231 (the "Writ
Action"). The Writ Action is currently on appeal in the Court of Appeal, Fourth
Appellate District, Division Three, as Case No. G054242. The parties acknowledge that
SOHTC, Mark Nielsen, Kenneth Friess, and/or Robert Williams may pursue their fees,
costs and/or other damages in the Writ Action, and the City agrees to take full
responsibility for handling and paying for any such claims by SOHTC, Nielsen, Friess,
and/or Williams.
C. WHEREAS, the Parties have been engaged in a civil action in the Orange
County Superior Court, entitled Urban Village Development Company, LLC, et al. v. City
of San Juan Capistrano, et al, Case No. 30-2015-00766640 (the "Referendum Action").
The Parties settled the Referendum Action and it has now concluded pursuant to a
Stipulation for Judgment and Entry of Judgment on or about July 13, 2017. As part of
the settlement and Stipulation for Judgment and Entry of Judgment, Urban Village
dismissed its inverse condemnation cause of action without prejudice.
D. WHEREAS, the Parties were engaged in a civil action in the Orange
County Superior Court, entitled Urban Village Development Company, et al. v. City of
San Juan Capistrano, Case No. 30-2016-00852277 (the "Contract Action"). Judgement
was entered dismissing the Contract Action with prejudice on December 2, 2016.
E. WHEREAS, the Writ Action, the Referendum Action, and the Contract
Action are collectively referred to herein as the "Actions." The defendant(s) and/or
respondent(s) in each of these Actions have denied all allegations therein.
F. WHEREAS, the Parties intend to resolve any and all past, present, or future
disputes, claims, demands, losses, damages, costs, actions, causes of action, and liabilities
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of whatever kind and nature, whether known or unknown, suspdcted or claimed,
investigated or not investigated, which arise from, or are directly related to the claims as
alleged in the Actions.
G. WHEREAS, this Agreement memorializes the settlement reached between
the Parties.
SETTLEMENT TERMS
WHEREFORE, in consideration of the covenants and agreements expressed
herein, and the recitals set forth above, which are incorporated into this Agreement, the
Parties agree as follows:
1. Incorporation of Recitals: The Recitals set forth above are incorporated
herein by this reference and are made a part of this Agreement as if set forth in their
entirety herein.
2. Payment of Settlement Funds: Within two (2) business days following the
execution of this Agreement, the City shall pay to Urban Village the sum of Seven
Hundred and Fifty Thousand Dollars ($750,000.00) ("Settlement Payment") as settlement
for all claims alleged in the Actions. A check shall be made payable to the Newmeyer&
Dillion, LLP Client Trust Account, in care of and mailed to Charles Krolikowski, Esq., at
895 Dove Street, 5th Floor, Newport Beach, California 92660, or in lieu of said check an
electronic payment in the same amount shall be made to such account as shall be
provided by Charles Krolikowski, Esq.
3. Project Entitlement and Development: In consideration for receiving the
Settlement Payment, Urban Village represents and agrees that it will not pursue any of
the development entitlements that it processed in conjunction with the Actions and
hereby disclaims any and all property interests therein, including, but not limited to, all
claims with respect to the underlying project.
4. Dismissal of Appeal in Writ Action: Within two (2) business days
following the execution of this Agreement, Urban Village shall dismiss (or request to
dismiss) the appeal in the Writ Action with prejudice.
5. Referendum Action: Urban Village agrees that it will not pursue the
inverse condemnation action that was dismissed without prejudice in the Referendum
Action and will proceed as though that cause of action was dismissed with prejudice.
6. SOHTC Claims: The Parties acknowledge that in the Writ Action,
SOHTC, Mark Nielson, Kenneth E. Friess and/or Robert J. Williams may seek to recover
their costs of suit and legal fees from the City and/or Urban Village and/or Urban
Village's officers, directors, members, owners, etc. Through this Agreement, the City
hereby agrees to assume all responsibility for the handling of, the defense of, and the
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ultimate payment of any costs of suit and legal fees that may be awarded to SOHTC,
Mark Nielson, Kenneth E. Friess and/or Robert J. Williams, no matter who they are
awarded against. The City will not pursue any defense/indemnity rights that the City
might have against Urban Village Development Company, LLC, Urban Capital Ventures,
LP, Grant McPhail, Joshua Host or Brett Shaves, or any combination thereof, in the Writ
Action.
7. Release by Parties: The Parties, on behalf of themselves, their assigns, and
successors-in-interest, do hereby fully and forever completely release, acquit, and
discharge all other Parties, their assigns, owners, employees, agents, subcontractors,
successors, predecessors, representatives, attorneys, and insurers, from any and all
claims, demands, losses, damages, costs, attorneys' fees, actions, causes of action, and
liabilities of whatever kind and nature, whether known or unknown, suspected or
claimed, which arise from, or are directly related to, or are connected with, or caused by
the subject matter of the Actions.
8. Civil Code Section 1542 Waiver: With respect to the matters released in
this Agreement, the Parties acknowledge that they are familiar with Civil Code section
1542, which provides as follows:
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.
The Parties hereby expressly waive and relinquish any and all rights or benefits conferred
by Civil Code section 1542.
9. No Assignment and Authority to Release: The Parties represent and
warrant that they have not assigned or otherwise transferred any interest in any claim that
is being released in this Agreement. The Parties further represent and warrant that they
have the right and authority to release all claims released in this Agreement.
10. No Admissions: This Agreement is entered into in compromise of disputed
claims. Neither the execution of this Agreement and the releases, dismissal and other
documentation provided for herein, nor the payment of any consideration hereunder, nor
any other act or agreement in furtherance of this settlement, shall be construed in any way
as an admission of wrongdoing or liability on the part of any Party hereto.
11. Governing Law: This Agreement will be governed by the laws of the State
of California.
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12. Entire Agreement: This Agreement contains the entire agreement between
the Parties and supersedes all previous and contemporaneous oral and written
discussions, agreements, or understandings between the Parties related to the subject
matter of this Agreement. All prior representations and understandings of the Parties
regarding settlement of their claims and all other matters of any kind are merged into this
Agreement. There are no other agreements between the Parties or their attorneys except
as stated herein.
13. Written Modification: The terms of this Agreement may not be altered,
modified, supplemented, amended, or waived except by an instrument in writing
executed by all of the Parties.
14. No Third Party Rights: Except as expressly provided herein, the terms of
this Agreement do not provide any right to any third party whatsoever nor do they create
any duty by the Parties to any third party.
15. Interpretation and Section 1654 Waiver: This Agreement is the product of
negotiation and mutual preparation by the Parties and their attorneys. Therefore, this
Agreement shall not be deemed to have been prepared or drafted by one Party or the
other and the Parties expressly waive the provisions of Civil Code section 1654, which
provides that ambiguities are to be construed against the drafting party.
16. Court's Jurisdiction: The Parties agree that the Orange County Superior
Court shall retain jurisdiction to enforce the terms of this Agreement, pursuant to
California Code of Civil Procedure section 664.6.
17. Materiality: The Parties acknowledge and agree that each and all of the
representations, warranties and agreements contained in this Agreement constitute a
material part of the consideration for entering into this Agreement and that but for each
and all of such representations, warranties and agreements, the Parties would not have
entered into this Agreement.
18. Headings: The headings included in this Agreement are for convenience
only and do not expand, limit, alter, or affect the matters contained in this Agreement or
the paragraph to which they pertain.
19. BindingEffect: This Agreement shall inure to the benefit of and be binding
upon each of the Parties, and their respective representatives, successors, transferees,
affiliates, subsidiaries, stockholders, assigns, heirs, officers, directors, former directors,
trustees, conservators, guardians, partners, employees, agents and legal representatives,
and each of them.
20. Facsimile, Electronic or Counterparts Signatures: This Agreement may be
executed in separate counterparts, the whole of which will constitute a binding
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agreement. Facsimile or electronic signatures,when received,will have the same force
and effect as original signatures.
21. Representation by Parties' Counsel: The Parties acknowledge that each of
them have been or have had the opportunity to consult with and be represented by their
own legal counsel in the negotiation of this Agreement.
22. Survivability: If any provision of this Agreement as applied to any Party or
to any circumstance shall be adjudged by a court to be void or unenforceable,then the
same shall not affect any other provision of this Agreement or void the enforcement of
this Agreement as a whole.
23. Costs and Attorney Fees. The Party's agree that they will bear their own
costs and legal fees with respect to the Actions and related to the preparation of this
Agreement. However, to the extent any proceeding is brought related to the terms of this
Agreement, the prevailing party shall be entitled to recover their costs of suit and legal
fees.
24. Additional Acts: The Parties agree that they shall take such other actions or
execute such other documents that are reasonably required to effectuate this Agreement.
THE UNDERSIGNED HAVE READ THIS AGREEMENT IN ITS ENTIRETY
AND ACCEPT AND AGREE TO ALL OF ITS PROVISIONS, INCLUDING THE
RECITALS,AND HEREBY EXECUTE IT,KNOWINGLY AND
VOLUNTARILY,AND WITH FULL UNDERSTANDING OF ITS
CONSEQUENCES.
WHEREFORE, the Parties have agreed to and executed this Agreement as of the
dates stated below.
Dated:November ,2017 URBAN VILLAGE D VELO MENT
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