18-0824_SAN JUAN HILLS GOLF CLUB, LP_Deposit and Reimbursement Agreement DEPOSIT AND REIMBURSEMENT
AGREEMENT
Between
THE CITY OF SAN JUAN CAPISTRANO
a California general law city
and municipal corporation,
and
SAN JUAN HILLS GOLF CLUB,L.P.
a California Limited Partnership
61147.80000\31128435.3
DEPOSIT AND REIMBURSEMENT AGREEMENT
This Deposit and Reimbursement Agreement ("Agreement") is made thiso J'( day of
August, 2018, by and between the City of San Juan Capistrano, a California general law city and
municipal corporation(the"City")and San Juan Hills Golf Club,LP("San Juan Hills").
RECITALS
This Agreement is made with respect to the following facts.
A. San Juan Hills represents it is the fee simple owner of that certain real property in the
City of San Juan Capistrano consisting of Assessor's Parcel No. ("APN") 666-011-27
(the"San Juan Hills Property").
B. City represents it is the fee simple owner of that certain real property in the City of San
Juan Capistrano, adjacent to the San Juan Hills Property, and consisting of APNs. 666-
011-18, -20, -21, -28, 666-013-01, -02, -03,-04, -06, 666-042-11 and the La Novia Road
Right of Way (collectively, the "City Property"), subject to certain rights, possessory
interests and claims made by San Juan Hills.
C. The City and San Juan Hills wish to consider the transfer from City to San Juan Hills a
certain portion of the above referenced property, as generally identified in Exhibit A (the
"Land Transfer"). In order to do so, the parties must undertake certain fact-fmding
activities, including an appraisal, land survey, title review, a public hearing process, as
well as other studies and reviews(collectively,the"Land Transfer Work"). Both the City
and San Juan Hills acknowledge that in order for the City to consider the proposed Land
Transfer, the City must engage the services of various consultants and City staff to
perform the Land Transfer Work, which may include legal, appraisal, survey,
environmental assessment, and title work consultants (collectively, the "Land Transfer
Consultants").
D. San Juan Hills desires and intends to reimburse the City for the fees and costs incurred by
the City (including City staff) and by the Land Transfer Consultants for purposes of
enabling the City to consider the proposed Land Transfer("Fees and Costs"). San Juan
Hills's advance deposit and reimbursement of Fees and Costs to the City under this Agreement
will help ensure that the City has the necessary resources to diligently and efficiently
consider the proposed Land Transfer.
AGREEMENT
NOW,THEREFORE, in consideration of the following mutual promises and agreements,
the City and San Juan Hills agree as follows:
SECTION 1.
Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon
which City and San Juan Hills have entered into this Agreement. The City and San Juan Hills
each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into
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this Agreement as though fully set forth herein.
SECTION 2.
Selection of Land Transfer Consultants; Reimbursement of the City's Fees and Costs. As
a necessary and indispensable part of the City's consideration of the proposed Land Transfer, the
City and San Juan Hills agree that the City shall retain any such Land Transfer Consultants as the
City may deem reasonable and necessary in the City's sole and absolute discretion. The City
shall have the exclusive right to select the Land Transfer Consultants and to determine the tasks
to be undertaken and completed by the Land Transfer Consultants,and the rates to be paid to the
Land Transfer Consultants. San Juan Hills agrees to reimburse the City one hundred percent
(100%) of the Fees and Costs; provided such Fees and Costs must only be with respect to work
related to consideration of the proposed Land Transfer described in this Agreement and for no
other project or City purpose.
SECTION 3.
The City's Control of Land Transfer Consultants. San Juan Hills further understands and
agrees that, notwithstanding its reimbursement obligations as set forth in Section 2 hereof, the
Land Transfer Consultants shall be the contractors and agents exclusively of the City, and not of
San Juan Hills. Except for those disclosures required by law including, without limitation, the
California Public Records Act, all conversations, notes, memoranda, correspondence and other
forms of communication by and between the City and its City Attorney and any other legal
counsel retained by the City, and between the City Attorney and such other legal counsel
retained by the City, on the one hand, and other Land Transfer Consultants, on the other hand,
shall be to the extent permissible by law privileged and confidential pursuant to attorney/client,
work product, deliberative process or other privileges. San Juan Hills agrees that it shall have no
claim to, nor shall it assert any right of ownership in, any reports, surveys, appraisals, title
research, correspondence, plans, maps, drawings, news releases or any other documents or work
product produced by the City Attorney or other legal counsel retained by the City, or produced
by the Land Transfer Consultants for the City Attorney.
SECTION 4.
Payment by San Juan Hills of Fees and Costs. San Juan Hills shall pay to the City all
Fees and Costs as follows. Within three(3)business days following San Juan Hills' execution of
this Agreement, San Juan Hills shall deposit with the City cash in the sum of TWENTY
THOUSAND DOLLARS ($20,000) (the "Deposit") (currently based on estimated Fees and
Costs of$20,000 for legal, title, appraisal, survey and City staff costs). From time to time, the
City shall draw upon the Deposit in order to pay the Land Transfer Consultants and City staff
and Fees and Costs incurred by the City. The City shall provide to San Juan Hills, on a monthly
basis, written updates of the amounts paid by the City to the Land Transfer Consultants. If the
City, in its sole and absolute discretion, determines that additional funds will be required to pay
the Fees and Costs, the City Manager, or his/her designee, shall make written demand upon San
Juan Hills for such additional funds (which, when received by the City shall also be referred to
herein as constituting the "Deposit"). San Juan Hills shall deposit such additional funds with the
City within ten (10) calendar days following the date of receipt of such demand. Should San
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Juan Hills have questions or require further clarification regarding the demand, San Juan Hills
shall request of the City such information needed to resolve any questions or clarification within
said ten (10) calendar day period. The parties agree to meet as expeditiously as possible and
negotiate in good faith within said ten (10) calendar day period to resolve any disputes
concerning the demand. Notwithstanding the above, San Juan Hills understands and agrees that
San Juan Hills is required to deposit the funds pursuant to the demand of the City within said ten
(10)calendar day period,but may indicate in writing that San Juan Hills is depositing such funds
with the City under protest regarding all or any portion of the disputed amount.
In the event San Juan Hills fails or refuses to provide such additional funds within the
time required by this Agreement, the City may, in addition to any other remedy provided by law,
and without liability,cease processing of the Land Transfer.
Within one hundred and twenty (120) calendar days following the Termination Date
(defined below), the City shall refund to San Juan Hills any and all unexpended portions of the
Deposit, after payment or provision for payment of all Fees and Costs. The City shall not have
any obligation to accrue or pay interest on any funds deposited by San Juan Hills with the City.
SECTION 5.
Term. The term of this Agreement shall commence on the date that this Agreement has
been approved by City and is fully executed by the parties. The term of this Agreement shall
terminate on the earlier of the following dates (the "Termination Date"): (a) the date that is
ninety(90) calendar days following the date that the City takes final action concerning the Land
Transfer; (b) the date that San Juan Hills provides written notice to City of San Juan Hills's
intention to terminate San Juan Hills's pursuit of the Land Transfer; or(3) the date that the City
provides written notice to San Juan Hills of the City's intention to terminate the City's pursuit of
the Land Transfer. Notwithstanding any provision in this Agreement,the obligation of San Juan
Hills to pay for the Fees and Costs incurred prior to the Termination Date shall survive the
termination of this Agreement.
SECTION 6.
Assignability. This Agreement may not be assigned by either the City or San Juan Hills
without the prior and express written consent of the other party, which consent shall not be
unreasonably withheld. Any attempted assignment of this Agreement not in compliance with the
terms of this Agreement shall be null and void and shall confer no rights or benefits upon the
assignee.
SECTION 7.
No Oral Modifications. This Agreement represents the entire understanding of the City
and San Juan Hills with respect to the matters set forth in this Agreement, and supersedes all
other prior or contemporaneous written or oral agreements pertaining to the subject matter of this
Agreement. This Agreement may be modified only by a writing signed by both the authorized
representatives of both the City and San Juan Hills.
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SECTION 8.
Binding Upon Successors. This Agreement and each of its terms shall be binding upon
the City, San Juan Hills, and their respective officers, elected officials, employees, agents,
volunteers,directors,contractors, and permitted successors and assigns.
SECTION 9.
Legal Challenges and Indemnification. Nothing herein shall be construed to require the
City to defend any third party claims and suits challenging any action taken by the City with
regard to any procedural or substantive aspect of the City's consideration of and potential
approval of the Land Transfer. San Juan Hills may, however, in its sole and absolute discretion,
appear as real party in interest in any such third party action or proceeding, and in such event,
San Juan Hills and the City shall defend such action or proceeding and San Juan Hills shall be
responsible for all reasonable attorneys' fees and costs, in their entirety, which may be incurred
by the City in defense of such action or proceeding. City shall consult with San Juan Hills
regarding the retention of legal counsel;provided, however, the City shall have the right to select
such legal counsel as the City deems reasonable and appropriate. Notwithstanding any provision
herein to the contrary, San Juan Hills agrees to indemnify,defend and hold harmless the City and
its officials, officers, employees and agents from and against any order, award, or judgment
against the City for attorneys' fees, costs or damages resulting from the consideration and any
approval of the Land Transfer, including without limitation any appeal, except to the extent
arising from the gross negligence or willful misconduct of the City and/or its officials, officers,
employees, and agents.
SECTION 10.
Attorneys' Fees. In the event that any action or proceeding, including arbitration, is
commenced by either the City or San Juan Hills against the other to establish the validity of this
Agreement or to enforce any one or more of its terms, the prevailing party in any such action or
proceeding shall be entitled to recover from the other, in addition to all other legal and equitable
remedies available to it, its actual attorneys' fees and costs of litigation, including, without
limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees,
including actual costs and attorneys' fees on appeal.
SECTION 11.
Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of
San Juan Capistrano, Orange County, California, and any action or proceeding brought relative
to this Agreement shall be heard in the appropriate court in the County of Orange, California.
The City and San Juan Hills each consent to the personal jurisdiction of the court in any such
action or proceeding.
SECTION 12.
Severability. If any term or provision of this Agreement is found to be invalid or
unenforceable, the City and San Juan Hills both agree that they would have executed this
Agreement notwithstanding the invalidity of such term or provision. The invalid term or
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61147.8000013 1 1 2 8 4 3 5.3
provision may be severed from the Agreement and the remainder of the Agreement may be
enforced in its entirety.
SECTION 13.
Interpretation/ Incorporation by Reference. The headings of each Section of this
Agreement are for the purposes of convenience only and shall not be construed to either expand
or limit the express terms and language of each Section. The exhibits attached hereto are hereby
incorporated by reference as though fully set forth in this Agreement.
SECTION 14.
No Guarantee of Approval of the Land Transfer. San Juan Hills understands and agrees
that nothing in this Agreement shall be deemed or construed to constitute any guarantees or
promises that the Land Transfer will be approved, certified or adopted. In the event that the
Land Transfer is not approved, San Juan Hills understands and agrees that San Juan Hills shall
not be due any refund of Fees and Costs already paid or deposited with the City,other than as set
forth in Section 4 of this Agreement. The parties recognize that the map depicted in Exhibit A is
a general depiction of the real property that is to be considered for a possible exchange and that
further refinement is necessary, following surveys and title work. The depiction in Exhibit A is,
in no way, a guarantee of what real property may ultimately be considered for potential
exchange.
SECTION 15.
Representations of Authority. Each party signing this Agreement on behalf of a party
which is not a natural person hereby represents and warrants to the other party that all necessary
legal prerequisites to that party's execution of this Agreement have been satisfied and that he or
she has been authorized to sign this Agreement and bind the party on whose behalf he or she
signs.
SECTION 16.
Notices. Notices, deposits and any other documents or material required to be or
otherwise given pursuant to this Agreement shall be sent to the following:
If to City:
City Manager San Juan Capistrano City Attorney
City of San Juan Capistrano Best Best&Krieger LLP
32400 Paseo Adelanto 655 W.Broadway, 15th Floor
San Juan Capistrano,CA 92675 San Diego CA 92101
bsiegcl(4sanjutuicapistrano.org JeLi Ballingcrpbbklaw.conl
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61147.80000\31128435.3
If to San Juan Hills: San Juan Hills Attorney
San Juan Hills Golf Club, LP John Ramirez
Attn: President Rutan&Tucker
6 Venture#100 611 Anton Boulevard,#1400
Irvine CA 92618 Costa Mesa,CA 92628
RBrutocao@a,gmail.com JRamirez@Rutan.com
Notices given pursuant to this Agreement shall be deemed received as follows:
(1) If sent by United States Mail-three(3)calendar days after deposit into the
United States Mail,first class postage prepaid.
(2) If by electronic mail-upon electronic transmission.
(3) If by express courier service or hand delivery-on the date of receipt by
the receiving party.
The addresses for notices set forth in this Section 16 may be changed upon written notice
of such change to either the City or San Juan Hills,as appropriate.
IN WITNESS WHEREOF,the City and San Juan Hills have executed this Agreement as
the dates set forth below.
[SIGNATURES ON FOLLOWING PAGE]
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61147.80000\31128435.3
SIGNATURE PAGE
TO
DEPOSIT AND REIMBURSEMENT AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND SAN JUAN HILLS GOLF CLUB, LP
SAN JUAN HILLS GOLF CLUB, LP, a THE CITY OF SAN JUAN
California limited partnership CAPISTRANO, a California general law
city and municipal corporation
By: San Juan Hills Golf Club, Inc. City of San Juan Capistra,4
By:
e5<7
�a ie:
By: .4 City anager
R.',erto Brutocao, President
Date:
Date: ( 0f 1 $
ATTESTED TO: ATT IED TO:
I
B L . 1
By: 's V
Citl erk
APPROVED AS TO FORM:
Best Best& Krieger LLP
By:
Jeffrey S. Ballinger
City Attorney
61147.80000\31128435.3 -8-
SIGNATURE PAGE
TO
DEPOSIT AND REIMBURSEMENT AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND SAN JUAN HILLS GOLF CLUB,LP
SAN JUAN HILLS GOLF CLUB, LP, a THE CITY OF SAN JUAN
California limited partnership CAPISTRANO, a California general law
city and municipal corporation
By: San Juan Hills Golf Club, Inc. City of San Juan Capistrano
By:
B • in
By: 44 " • ity Mana:er
Re'` rto Brutocao,President G
Date: t -2q-'f
Date: � 1 yJ1$
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By: tIP 0By:
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f3:94,twe aHntyrov, y
City Clerk
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I APPROVED AS TO FORM:
Best Best&Krieger LLP
B /�
J S. Ballin er
City Attorney
61147.80000\31128435.3 -8-
EXHIBIT A
TO
DEPOSIT AND REIMBURSEMENT AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND SAN JUAN HILLS GOLF CLUB,LP
[ATTACHED ON FOLLOWING PAGE]
61147.80000131128435.3 _9_
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City of San Juan Capistrano ATTACHMENT A `f'
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COOP I
32400 PASEO ADELANTO �� A MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO,CA 92675i. q U IQJ�
(949)493-1171 p- 11A IAO/ORAIE0 SERGIO FARIAS
(949)493-1053 FAX • ($TAIIIfNEO 1961 KERRY K.FERGUSON
www.sanjuancapistrano.org 1776 ' BRIAN L.MARYOTT
• • PAM PATTERSON, ESQ.
DEREK REEVE
TRANSMITTAL
TO:
San Juan Hills Golf Club, LP
Attn: President
6 Venture #100
Irvine, CA 92618
DATE: September 11, 2018
FROM: Christy Jakl, Assistant City Clerk (949) 443-6310
RE: Deposit and Reimbursement Agreement
An original Deposit and Reimbursement Agreement is enclosed for your records.
If you have questions concerning the agreement, please contact Charlie View, Project Manager
at (949) 443-6322.
Cc: Charlie View, Project Manager
John Ramirez, Rutan & Tucker
San Juan Capistrano: Preserving the Past to Enhance the Future
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