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18-0611_VERMEULEN RANCH CENTER/SPIEKER DEVELOPMENTSETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (Agreement) is entered into and executed by VERMEULEN RANCH CENTER, LLC (Vermeulen Ranch), VIRGINIA GERMANN, as Successor Trustee of the C. and I. Vermeulen Revocable Trust Dated May 14, 1990 (Vermeulen Trust), SPIEKER REALTY INVESTMENTS, LLC (Spieker Realty) and SPIEKER SENIOR DEVELOPMENT PARTNERS, LLC (Spieker Development) (collectively Petitioners), on the one hand, and CITY OF SAN JUAN CAPISTRANO (City) and CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO (City Council) (collectively Respondents), on the other hand. Petitioners and Respondents are referred to collectively as the Parties. RECITALS A. Vermeulen Ranch and Vermeulen Trust (collectively Vermeulen) are the owners of an approximately 35 -acre property located between Del Obispo Street and Alipaz Street, in the southwest part of the City, with a street address of 32382 Del Obispo Street, San Juan Capistrano, California (the Property). Vermeulen also owns an approximately 8 -acre retail site adjacent to the Property, bordered by Del Obispo Street on the west, with a street address of 32251 (and sometimes referred to as 32285) Del Obispo Street, San Juan Capistrano, improved with retail uses (the Retail Center). Pre-Litipation Land Use Aanlicati_o_ns B. In or about June 2013, Spieker Realty entered into a Purchase and Sale Agreement and Joint Escrow Instructions with Vermeulen for the Property. In July 2013, Spieker Development submitted a request to the City for initiation of a General Plan Amendment (GPA) for the Property from Agri -Business to Public & Institutional in conjunction with development of a proposed continuing care retirement community project consisting of 407 independent living units and 101 unit health care center (CCRC Project) at the Property and the Retail Center. On August 20, 2013, the City Council adopted Resolution No. 13-08-20-02, granting the request to initiate a GPA study. For ease of reference only, Spieker Realty and Spieker Development are hereafter referred to collectively as Spieker. Spieker thereafter modified its request to initiate a GPA from Public & Institutional to Specific Plan/Precise Plan. C. On October 21, 2014, at a public hearing, the City Council approved the CCRC Project at the Property. Specifically, the City Council adopted Resolution No. 14- 10-21-03, approving the EIR for the CCRC Project and certifying it under the California Environmental Quality Act (CEQA); Resolution No. 14-10-21-04, approving the GPA and Specific Plan for the CCRC Project; and Resolution No. 14-10-21-05, approving the tentative tract map, architectural control, and grading plan for the CCRC Project. On 10306-000512181664v 1. doc October- 21, 2014, the City Council also approved the first reading of an ordinance approving a Zone Change for the Property from Agri -Business to Specific Plan/Precise Plan, and an associated Development Agreement for the CCRC Project. On November 4, 2014, after second reading, the City Council adopted Ordinance No. 1018, approving the Zone Change and Development Agreement. D. On November 20, 2014, a referendum petition challenging the GPA and Specific Plan adopted by Resolution No. 14-10-21-04 was filed with the City with signatures of more than 10% of City voters required by Elections Code Section 9237, On December 16, 2014, the City Council adopted Resolution No. 14-12-16-05, repealing the previous approval of the GPA and Specific Plan per Resolution No. 14-10-21-04 (but not repealing Ordinance No. 1018). The action reverted the General Plan Land Use Designation back to Agri -Business but the zone change did not revert back and it remained and remains Specific Plan/Precise Plan. E. On February 2, 2015, Spieker submitted a petition to the City Council for initiation of a GPA for the Property from Agri -Business to Residential. On April 21, 2015, the City denied this request by Spieker to initiate a GPA. The Action F. On July 16, 2015, Petitioners filed a Petition for Writ of Mandate (Writ) and a Complaint for Just Compensation, Damages for Constitutional Violations, and Declaratory Relief (Complaint), against Respondents, titled Vermeulen Ranch Center, LLC v. City of San Juan Capistrano, Orange County Superior Court, Case No. 30-2015- 0079913 8 -CU -E 1-CXC. Collectively, the Writ and Complaint are referred to herein as the Action. In the Action, Petitioners sought a Writ commanding Respondents to set aside the April 21, 2015 decision refusing to initiate a GPA, and instead, to undertake the GPA study. Petitioners also alleged causes of action for damages under the Federal and California Constitutions including just compensation for alleged taking of property, alleged denial of due process and equal protection, and for declaratory relief under state law. G. Respondents denied, and deny, that Petitioners' claims had or have any merit. Respondents filed a demurrer which was sustained in part and overruled in part. Respondents thereafter filed an Answer responding to the allegations and alleging affirmative defenses. The Parties engaged in discovery. H. Commencing in April 2016, the Parties submitted one of a series of Joint Reports to the Court, advising that the Parties desired to explore options to settle the Action through discussion of possible initiation of a GPA and an appropriate project at the Property. Based thereon, the Court continued the status conference to allow the Parties to pursue these options. Thereafter, for the ensuing more than two years, the Parties have submitted regular Joint Reports and Stipulations to the Court, advising of the 2 10306-000512181664v1_doe status and progress of the GPA, application for land use entitlements, and planned public hearings for a project at the Property. By successive orders of the Court granting further continuances, litigation of the Action has effectively been stayed since April 2016, Post -Litigation Land Use Applications I. On September 20, 2016, upon request by Vermeulen, the City Council adopted Resolution No. 16-09-20-03 initiating a GPA for a proposed commercial/residential development on the Property known as The Farm Specific Plan Project (Project). The Project as then proposed consisted of not more than 40,000 square feet of commercial uses on approximately 5 acres and not more than 180 residential dwelling units on approximately 30 acres at the Property. J. On June 14, 2017, Spieker submitted requests for approval of the Project. The Project consists of up to 180 single-family residential units, a half -acre park, and a public trail leading from Del Obispo Street to Via Positiva. The Project no longer includes a commercial component. In accordance with CEQA, an Initial Study/Mitigated Negative Declaration was prepared and circulated for public review from March 6, 2018 through April 5, 2018. The City has also negotiated with Vermeulen, as the owner of the Property, over the terms of a proposed Development Agreement. K. On April 24, 2018, a public hearing was held before the City's Planning Commission to consider and adopt a resolution, recommending that the City Council adopt GPA 16-001, Specific Plan 18-001 (processed as Code Amendment 18-004), and Development Agreement 18-001 for the proposed The Farm Specific Plan residential project at the Property, and to consider the associated Mitigated Negative Declaration (MND) (SCH#2018031031) for the Project. Collectively, the MND (SCH#2018031031), GPA 16-001, Specific Plan 18-001 (Code Amendment 18-004), and Development Agreement 18-001 are referred to as "the Project Approvals". The Planning Commission recommended approval of the Project Approvals with the recommendation that the Council refer the Specific Plan back to the Planning Commission for further review and revision prior to approval by the City Council. L. On May 15, 2018, a public hearing was held before the City Council to consider the Project Approvals. After the public hearing, the City Council (1) adopted Resolution No. 18-05-15-01 approving the MND (SCH#2018031031) for the Project; (2) adopted Resolution 18-05-15-02 approving GPA 16-001 changing the land use designation of the Property from Agri -Business to Specific Plan/Precise Plan; (3) approved introduction and first reading of Ordinance No. 1056 approving The Farm Specific Plan 18-001 (Code Amendment 18-004), without referring the Specific Plan back to the Planning Commission; and (4) approved introduction and first reading of Ordinance No. 1057 approving Development Agreement 18-001. 3 10306-0005\2181664v l .doc M. On June 11, 2018, the City Council will consider second reading and adoption of Ordinance No. 1056 and Ordinance No. 1057. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed as follows: AGREEMENT 1. Effective Date. The Effective Date of this Agreement shall be the last date on which the Agreement has been signed by each of the Parties. 2. Agreement by City to Process Land Use Entitlements Applications. The City will complete the consideration of the second reading and adoption of Ordinance No. 1056 and Ordinance No. 1057 on June 11, 2018. 3. No limitation on City or City Council discretion. It is expressly agreed to, understood, and acknowledged, that nothing in this Agreement, or otherwise, in any manner obligates the City or City Council to adopt Ordinance No. 1056 and Ordinance No. 1057, nor commits the City or City Council to such approval, and that the City and City Council expressly retain the right to disapprove Ordinance No. 1056 and Ordinance No. 1057, in the sole discretion of the City and/or the City Council. 4. Dismissal of the Action. If the City Council adopts Ordinance No. 1056 and Ordinance No. 1057, Petitioners, and each of them, shall file a dismissal of the entire Action, with prejudice, subject to the conditions precedent as provided in this paragraph. a. Conditions Precedent to Dismissal of Writ and Com faint. As to each of the Project Approvals, each of the following are conditions precedent to Petitioners' filing of the dismissal with prejudice: (i) Lack of Referendum Overturninp_ the Project Approvals. As to each of the Project Approvals, one of the following shall occur: (A) Expiration of the 30 -day period under Elections Code §9237 within which a referendum petition challenging the Project Approval must be filed, without the filing of any such referendum; or (B) If a timely referendum petition is submitted to the City as to any of the Project Approvals: [i] A determination is made by the election official under Elections Code §9240 that no action shall be taken on the petition as to the Project Approval due to lack of sufficient signatures; or 4 10306-000512181664VI.doc [ii.] The Project Approval becomes effective following approval by the voters in an election under Elections Code §9241. (ii) Lack of Third Parry regal Challent!e. As to each of the Project Approvals, expiration of the time period within which a legal challenge must be filed under Pub. Resources Code §21167 or Gov't Code §65009, without the filing of any such legal challenge. b. Time for Filinp, Dismissal With Pre'udice. Once each of the conditions precedent set forth above are satisfied as to all of the Project Approvals, Petitioners shall file the dismissal with prejudice within 3 court days. 5. General Release by Petitioners. Effective immediately upon the filing by Petitioners of the Request for Dismissal of the entire Action with prejudice, as set forth in Section 4, above (hereafter the Dismissal Date), this Agreement shall serve as a full release, waiver, and discharge by Vermeulen Ranch, Vermeulen Trust, Spieker Realty, and Spieker Development, and each of them, on behalf of themselves, and each of their respective principals, officers, board members, agents, insurers, attorneys, representatives, assigns, employees, administrators, trustees, heirs, beneficiaries, successors in interest, parent companies, and related entities (collectively the Releasing Parties), in consideration of the mutual covenants and promises contained herein, of the City, the City Council, and the City's present and former Council members, officials, agents, insurers, attorneys, representatives, assigns, employees, administrators, trustees, heirs, beneficiaries, and successors in interest, (collectively the Releasees) from any and all claims or cross-claims, and from all causes of action, including but not limited to claims, cross-claims, demands, obligations, subrogation claims, damages, attorneys' fees, costs, expenses, liens, actions, causes, and causes of action of whatever kind, known, or unknown, at law or in equity, that the Releasing Parties ever had, now have or may hereafter claim to have against any of the Releasees relating to, arising out of, or in any manner based upon the allegations in the Action and/or the Property, the Retail Center, the Project Entitlements, and/or any and all acts or omissions of the Releasees that occurred, or are alleged to have occurred, at any time up to the Dismissal Date. This general release includes, but is not limited to, any and all claims under the Federal or California Constitutions, statutory, or decisional law, vested rights law, breach of contract, estoppel, or any other claim for damages on any theory, writs of mandate under Code of Civil Procedure § 1094.5, § 1085, or otherwise, claims for declaratory or injunctive relief, any and all claims for attorneys' fees and costs; and any other actual or potential claims that the Releasing Parties have asserted, could have asserted or could assert against the Releasees at any time up to the Dismissal Date. 6. Section 1542 Waiver. Petitioners, and each of them, hereby waive all rights under California Civil Code § 1542, which provides as follows: 5 10306-0005\2181664v]Am 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. Vermeulen Ranch:[Initials] Vermeulen Trust: [initials] Spieker Realty: [Initials] Spieker Development: __ [Initials] 7. Attorneys' Fees & Costs. The Parties shall each bear their own attorneys' fees and costs incurred in connection with or otherwise related to the Action, and any and all events referred to in the Recitals, the negotiation of this Agreement, all matters and documents referred to in this Agreement, and all related matters. 8. No Admission of Liability. Each of the Parties agrees and understands that this Agreement resolves disputes that have been contested by all Parties and that the terms of this Agreement shall in no way be construed to be an admission of fault, or liability, whatsoever. 9. Entire Agreement, This Agreement contains all of the terms and conditions agreed upon by the Parties regarding the subject matter hereof. Except for the Project Approvals, no other agreements, oral or otherwise, shall be deemed to exist or to bind the Parties. Except for the Project Approvals, no representative of any of the Parties hereto had or has any authority to make any representation or promise not reflected or contained in this Agreement, and the Parties acknowledge that they have not executed this Agreement upon any such representation or promise. This Agreement cannot be modified or changed except by written instrument signed by each of the Parties. The Parties hereby agree and acknowledge that they will not claim at any time or place that this Agreement has been orally altered or modified or otherwise changed by oral communication of any kind or character. 10. Legal Representati2 . The Parties, and each of them, acknowledge that in connection with the negotiation and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel, or, if they were not so represented, said non -representation is and was the voluntary, intelligent, and informed decision and election of any of the Parties not so represented. 11. Severability. If any portion, provision, or part of this Agreement is held, determined or adjudicated to be invalid, unenforceable, or void for any reason 6 10306.0005M 81664v I.duc 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. Vermeulen Ranch: [Initials] Vermeulen Trust: [Initials] Spieker Realty: [Initials] Spieker Development: Ak [liiitialsj 7. Attorneys' Fees & Costs. The Parties shall each bear their own attorneys' fees and costs incurred in connection with or otherwise related to the Action, and any and all events referred to in the Recitals, the negotiation of this Agreement, all lnatters and documents referred to in this Agreement, and all related matters. 8. No Admission of Liability. Each of the Parties agrees and understands that this Agreement resolves disputes that have been contested by all Parties and that the terms of this Agreement shall in no way be construed to be an admission of fault, or liability, whatsoever. 9. Enti3re greeme>t. This Agreement contains all of the terms and conditions agreed upon by the Parties regarding the subject matter hereof. Except for the Project Approvals, no other agreements, oral or otherwise, shall be deemed to exist or to bind the Parties. Except for the Project Approvals, no representative of any of the Parties hereto had or has any authority to make any representation or promise not reflected or contained in this Agreement, and the Parties acknowledge that they have not executed this Agreement upon any such representation or promise. This Agreement cannot be modified or changed except by written instrument signed by each of the Parties. The Parties hereby agree and acknowledge that they will not claim at any time or place that this Agreement has been orally altered or modified or otherwise changed by oral communication of any kind or character. 10. Lej4al Representation. The Parties, and each of them, acknowledge that in connection with the negotiation and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel, or, if they were not so represented, said non -representation is and was the voluntary, intelligent, and informed decision and election of any of the Parties not so represented. 11. Severability. If any portion, provision, or part of this Agreement is held, determined or adjudicated to be invalid, unenforceable, or void for any reason 6 10306-000512181664v1.doc whatsoever, each such portion, provision, or part shall be severed from the remaining portions, provisions, or parts of this Agreement, and shall not affect the validity or enforceability of such remaining portions, provisions or parts. 12. Construction and Governing Law. This Agreement shall be construed as though all Parties participated equally in its drafting and, it shall be interpreted, wherever possible, to make it valid and effective. Any uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if such uncertainty or ambiguity exists, shall be interpreted according to the applicable rules of interpretation of contracts under the laws of the State of California, and not the substantive law of another state or the United States or federal common law, without regard to conflicts of law. The Parties acknowledge they have had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters that are the subject of this Agreement. The Parties further acknowledge that they are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the Action resolved hereby. Nevertheless, this Agreement shall be, and remain, in effect as a full and complete release as to the Action as provided in paragraph 5, notwithstanding the discovery or existence of any such additional claims or facts. 13. _Warranties Regarding Execution. The Parties, and each of them, represent and warrant that: (a) They are the present owners of all rights, title and interest, if any, in and to every matter that they purport to release in this Agreement and that they have not heretofore assigned, transferred, conveyed, or encumbered, or purported to assign, transfer, convey, or encumber, to any person or entity, any matters released herein; (b) They have the right, power and authority to take the actions that they agree to take herein; (c) Other than the Action, Petitioners have not, directly or by and through a third party, initiated any action against the City and/or the City Council, and that Petitioners are not aware of any action (other than the Action) of any kind that is currently pending against the City and/or the Council in any federal or state court or before any administrative agency or arbitrator relative to the matters that are the subject of this Agreement; (d) Each person signing this Agreement further warrants and represents that he or she has the full authority and permission to execute and deliver this document on behalf of the person or entity for whom he or she is signing and to bind her/his respective heirs, executors, administrators, agents, representatives, successors, and assigns. 7 10306-0005\2181664v1.doc 14. Further Assistance. The Parties shall hereafter execute all documents and do all acts necessary, convenient, or desirable, in the reasonable opinion of any of the Parties, to effect the provisions of this Agreement. 15. Recitals. The Recitals set forth above are incorporated as though fully set forth in this Agreement and are considered a part of this Agreement. lb. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to constitute one and the same document. Signatures delivered by facsimile or electronic transmission shall be accepted as though originals. We, the undersigned, certify that we fully understand all the terms and consequences of this Agreement and have executed it voluntarily and of sound mind. PETITIONERS DATED:.r�,.to DATED. VER.MEULEN RANCH CENTER, LLC V1RG1N1A GERMANN, as Successor Trustee of the C. and 1. Vermeulen Revocable Trust Dated May 14, 1990 Z�-- 2 &*'W -L'!;"'— -. 'Iz6aaa� rginia Germann SPIEKER REALTY INVESTMENTS, LLC Name: Title: [Signatures continued over] 8 10306-0005\2181664v1 doc 14. Further Assistance. The Parties shall hereafter execute all documents and do all acts necessary, convenient, or desirable, in the reasonable opinion of any of the Parties, to effect the provisions of this Agreement. 15. Recitals. The Recitals set forth above are incorporated as though fully set forth in this Agreement and are considered a part of this Agreement. 16. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to constitute one and the same document. Signatures delivered by facsimile or electronic transmission shall be accepted as though originals. We, the undersigned, certify that we fully understand all the terms and consequences of this Agreement and have executed it voluntarily and of sound mind. PETITIONERS VERMEULEN RANCH CENTER, LLC DATED: DATED: DATED: [Signatures continued over] 10306-000512181664vl.doc IM Name: Title: VIRGINIA GERMANN, as Successor Trustee of the C. and I. Vermeulen Revocable Trust Dated May 14, 1990 Virginia Germann SPIEKER REALTY INVESTMENTS, LLC DATED: 6 DATED: _ �- 1 �s SPIEKER SENIOR DEVELOPMENT PARTNERS, LLC By: e: 7RoY GeWrA Title:/#zrx4E7c-- CITY OF SAN JUAN CAPISTRANO CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO DATED • By: Name: Title: m 10306.000512181664v l .doc 'and APPROVED AS TO FORM DATED: 6/42191 DATED: 11 is 10306.000512181664vl.doc MANATT, PHELPS & PHILLIPS, LLP By:IYKLLgvzt-lll-��— FI)WARD G. BUNG Attorneys for Petitioner m WATS014 & GERSHON, SASKIA T. ASAIVd�A Attorneys for Respondents