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18-1002_MISSION COMMERCIAL PROPERTIES, INC._E9_Agenda Report10t2r2018 E9 TO City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council .M"t DATE FROM:amin Siegel, City Manager SUBMITTED BY Jeffrey Ballinger, City Attorneynv{ þtSß October 2,2018 SUBJECT Joint Defense Agreement with Mission Commercial Properties, lnc., Regarding Confidential Communications and Joint Representation in Connection with the City's Approval of Final Construction Plans for the Plaza Banderas Hotel, for Property Located at26871and 26891 Ortega Highway RECOMMENDATION: Authorize the City Manager and City Attorney to execute the Joint Defense Agreement with Mission Commercial Properties, lnc., in substantially the form attached hereto, in connection with the City's approval of the final construction plans for a Hotel and related uses, for property located a126871 and 26891 Ortega Highway (APN Nos. 124-170-12, - 14, -15, and -16) (Plaza Banderas Hotel). EXECUTIVE SUMMARY On March 20,2018, the City Council denied two appeals and affirmed two actions of the Design Review Committee (DRC). The challenged DRC actions involved the approval of the Final Construction Plans of the Plaza Banderas Hotel project ("Project") a|26871 and 26891 Ortega Highway. Subsequently, a lawsuit challenging the City Council's action was filed. The City and the Project applicant now desire to enter into a Joint Defense Agreement, outlining mutual promises relating to their joint interests in defending against the litigation. City Council Agenda Report October 2,2018 Page 2 of 4 DISCUSSION/ANALYSIS On October 19, 2010, the San Juan Capistrano City Council certified the Final Environmental lmpact Report for the Plaza Banderas Hotel Project and the entitlements for the Project, including a General Plan Amendment to change the land use designation (GPA 10-001), the Plaza Banderas Hotel Comprehensive Development Plan (CDP 10- 01) and a Rezone to the City's Zoning Map (RZ 10-001). The City Council's approval included a Condition of Approval (No. 59) requiring the Planning Commission to review and approve the Project's Conceptual Design Plans. As a result, on March 8, 2011, the Planning Commission reviewed and approved the Project's Conceptual Design Plans, satisfying Condition No. 59. The 2010 City Council approval also included a Condition of Approval (No. 60) requiring the Project's Final Construction Plans to be reviewed and approved by the Design Review Committee (DRC), to ensure consistency with the City-approved Conceptual Design Plans. The DRC reviewed and voted unanimously to approve the Project's Final Construction Plans, at the DRC's meetings held on July 13,2017, January 11,2018, and February 8, 2018. Specifically, the DRC found that the architectural design of the Final Construction Plans for the three buildings was consistent with the 2011 Planning Commission approved Conceptual Design Plans. On January 25,2018, the City received an appeal of the DRC's determination made on January 11,2018 (the "First Appeal"). The First Appeal was filed by Steve Behmerwohld, asserting he is a resident and representative of Save Our Mission - San Juan Capistrano, c/o Charles S. Krolikowski, Newmeyer & Dillion, LLP. On February 22,2018, the City received an appeal of the DRC's determination made on February 8,2018 (the "second Appeal"). The Second Appealwas filed by Steve Behmenryohld, asserting he is a resident and representative of Save Our Mission - San Juan Capistrano, c/o Charles S. Krolikowski, Newmeyer & Dillion, LLP. On March 20, 2018, the City Council conducted an appeal hearing on the Appeals, pursuant to San Juan Capistrano Municipal Code Section 9-2.311. Based upon the oral and written evidence presented, the City Council rejected the Appeals and upheld the DRC's January 11,2018, and February 8,2018, determinations. Save Our Mission ("Petitioner") subsequently filed a lawsuit on April 13, 2018, in the County of Orange Superior Court. (Save Our Mission - San Juan Capistrano v. City of San Juan Capistrano et al., Case No. 30-2018-00986220-CU-WM-CXC,) (the "Litigation") The Litigation challenges the City's approval of the Project, alleging among other things that the City failed to comply with the California Environmental Quality Act ("CEQA"). City Council Agenda Report October 2,2018 Paqe 3 of 4 City Council Resolution No. 10-10-05-05, Condition No.4, provides that the applicant shall defend, indemnify and hold harmless the City, its officers, employees and agents from and against any claim, action or proceeding to attack, set aside, void or annul any approval or condition of approval concerning this project, including but not limited to any approval or condition of approval of the City Council, Planning Commission, Design Review Committee, or Development Services Director. Based on the claims made in the Litigation, the City and the Project applicant have common legal interests in defending against the Lawsuit's allegations. The City and the Project applicant have, and may assert, joint and/or common defenses, claims and/or cross-claims. Therefore, it is in the City's best interest to cooperate with the Project applicant to advance its interest in defending the Lawsuit. Further, the City and the Project applicant may wish to share information and confidence for the purpose of formulating and implementing a joint and/or common defense effort and/or legal strategy in the case. The proposed Joint Defense Agreement acknowledges the mutual interests the City and the Project applicant have in the Lawsuit, and outlines an agreement regarding the confidentiality of defense materials, indemnification of the City, cost recovery, and other related provisions. FISCAL IMPACT This agreement memorializes the Project applicant's obligation to defend and indemnify the City for the subject lawsuit. So, while the agreement does not, by itself, have a fiscal impact, it does reinforce the Project applicant's obligation to ensure that the City's funds are not at risk in defending the lawsuit. ENVIRONMENTAL IMPACT Approval of the Joint Defense Agreement is not a "project" for purposes of the California Environmental Quality Act (.CEQA") pursuant to the State CEQA Guidelines (Cal. Code Regs., SS 15000 et seq.). Approval of the Joint Defense Agreement has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. (State CEQA Guidelines, S 15378(a).) Further, the Joint Defense Agreement constitutes an administrative or organizational activity with no potential to result in direct or indirect physical changes in the environment. (State CEQAGuidelines, S 15378(bX2), (4), and (5).) ITY COUNCI None City Council Agenda Report October 2,2018 Page 4 of 4 coMMtssloN/co ITTEE/BOARD REVIEW AND R MMENDATIONS: Not applicable NOTIFICATIO Mission Commercial Properties, lnc. Plaza Banderas Project Notification List ATTACHMENT: Attachment 1 - Joint Defense Agreement JOINT NONDISCLOSURE, INDEMNITY, AND LITTGATION DEFENSE AGREEMENT BY AND BETWEBN THE CITY OF SAN JUAN CAPISTRÂNO, CALIFORNIA, ANI} MTSSTON COMMERCIAL PRCIPERTIDS,INC. This Joint Nondisclosure, lndemnity, and Litigation Defense Agreement ("Agreement") is made and entered into this lJ .day of September 2018, by and between the City of San Juan Capìstrano, California (the "C¡ty") and Mission Commercial Properties, lnc. ("Real Party"). The City and Real Party are sometirnes referred to herein individually as a ooParty" and collectively as the "Parties." Recitals A. The City is a municipal corporation situated in the County of Orange in the State of California. B. Real Party is a California corporation and acts on behalf of the owner of the property located al2687l and 26891 Ortega Highway, San Juan Capistrano, Calilomia ("Plaza Banderas"). C. On October 19,2010, the City Councilcertified the Final Environmental Impact Report for the Plaza Banderas Hotel Project ("Original Project") and the entitlsments for the Original Project including a General Plan Arnendment to change the land use designation (CPA l0-001), the Plaza Banderas HotelComprehensive Development Plan (CDP l0-01) and a Rezone to the City's Zonìng Map (RZ l0-001). D. The City Council's approval included a Condition of ApprovalOo. 59) requiring the Planning Commission to review and approve the project's Conceptual Design Plans. On March 8, 201 l, the Planning Commission revie wed and approved the project's Conceptual Design Plans, satisl'ying Condition No. 59. E. The 2010 City Councilapprovalalso included a Condition of Approval(No.60) requiring the project's Final Construction Plans to be reviewed and approved by the Design Review Committee (DRC) to ensure consistency with the City-approved Conceptual Design Plans. F. On July 13, 2017, January I l, 2018, and February 8, 2018, DRC reviewed ¡nd voted unanimously to approve the project's Final Construction Plans, finding that the architecturaldesign of the Final Consruction Plans fior the three buildings was consistent with the 201 I Planning Commission approved Conceptual Design Plans. C. On January 25,2t18, the City received an appeal of the DRC's determination made on January I l, 2018 (the "First Appeal"). The First Appeal was fÌled by Steve Behmerwohld, asserting he was a resident and representative of Save Our Mission * San Juan Capistrano, c/o Charles S. Krolikowski, Newmeyer & Dillion, LLP. 6l l.l7 80008\10996514 6 Attachment L Fl. On February 22,2018, the City received an appealof the DRC's determination made on February 8, 2018 (the "Second Appeal"). The Second Appeal was filed by Steve Behmerwohld, asserting he was a resident and representative of Save Our Mission - San Juan Capistrano, c/o Charles S. Krolikowski, Newmeyer & Dillion, LLP. The First Appeal and Second Appeal together referred to hereinafter as the Appeals. l. On March 20,2018, the City Council conducted a duly-noticed appeal hearing on the Appeals pursuânt to San Juan Capistrano Municipal Code Section 9-2.31t; based upon the oral and written evidence presented, as well as the entirety of the administrative record, the City Council rejected the Appeals and upheld the DRC's January I I , 201 I and February 8, 2018 determinations. J. On April 13, 201 8, the Save Our Missîon - Son Juan Capistrano, a purported unincorporated association of concerned residents (o'Petitioner"), filed a lawsuit in the County of Orange Superior Court, Save Our Missìon - San Juan Capistrano v. City oÍSan Juan Capistrano el al,,Cæe No, 30-2018-00986220-CU-WM-CXC (the "Litigation"), rvhich challenges the City's approval, alleging inter alia that the City failed to comply with the Califomia Environmental Quality Act ("CEQA").. K. City Council Resolution No. l0-10-05-05, Condition No. 4, provides that the applicant shalldefend, indemnify and hold harmless the City, its officers, employees and agents from and against any claim, action or proceeding to attack, set aside, void or annul any approval or condition of approval concerning this project, including but not limited to äny approval or condition of approval of the City Council, Planning Commission, Design Review Committee, or Development Services Director, L. Based upon information currently available, without admittìng any individual or shared liability, and expressly denying same, the Parties believe they have similar and common legal interests in the prosecution of the Litigation and the claims that will likely be contained therein, and any matters relating thereto. The Parties further believe it is to their individual and mutuat benefit to cooperate and share information, str¿tegy and documents concerning issues arising out of or relating to those claims, including, but not limited to, information and documents that may be subject to the attorney-client privilege, attorney work-product doctrine, and/or any other applicable privilege or immunity existing under state or federal law, effective as of the commencement of this Agreement or thereafter. M. The Parties intend to vigorously defend against Petitioner's claims. Accordingly, the Pa¡ties have a common interest in the defense of future claims raised against them in the Litigation. Each of the Parties intends to appear in the Lítigation, oppose the Litigation, and may represent its own separate interests, so¡ne of which may be unique. Such representation of separate or unique interests is not inconsistent with the common interests of the Parties. N. Nothing in this Agreement is meant or should be construed to abrogate the City's legal obligation to exercise independent judgment as required by the CEQA concerning the project, or consideration of project approvals. ) ó I r47 80008\1099652J 6 O. In delending against the Litigation and similar challenges to the project from other third parties in the future, the Parties have interests in common and will litigate common claims and have legal theories in common, and will benefit if they can communicate openly with each other about all matters relating to the evaluatîon ol'and possible legal challenges to the City's âct¡ons on the project. P. ln order to promote full snd effective cornmunication between the Parties, and to avoid duplicative efforts by them and to minimize the costs of litigation, the Parties desire to share attorney-client and/or rvork-product privileged information and other privileged information concerning the Litigation noted in the above recitals, but the parties wish to ensure that any such sharing of information will not diminish in any way the confidentiality of such information and will not constitute a waiver of any applicable privileges. a. This Agreernent also confirms that, to the extent the Parties and/or their attomeys have already been in communication with'each other since any privileges became operative under any applicable law, their communications and work product lvere then, and remain now, subject to the joint defense privilege and now are subject to this Agreement. Asreeqent Now, therefore, the Parties, in consideration of their mutual promises and the foregoing recitals that are incorporated herein, agree as follows: I . Asreement. ln order to pursue a joint legal effort effectively, the Parties agree that their mutual interests ìn conducting coordinated litigation efforts and/or investignting, taking measures to prevent or other activities in respect of claims, potential claims or regulatory proceedings may be best served by exchanging or disclosing among themselves and their counsel Privileged lnformation, as that term is defined below, provided, however, that nothing herein shall compel the Parties to coordinate defense efforts or to share any such Privileged lnformation, The coordination of defense eflorts and the sharing of Privileged Information shall be entirely voluntary. l.l Definition gfJoint Defense. All work perl'ormed by the attorneys for the Parties pursuant to this Agreement and communications among the attomeys for the Parties in connection with such representation of their respectïve clients shall be conducted and protected pursuant to the joint defense doctrine recognized in such federal court cases as United States v- McPartlin,s9s F.3d 1321, 1336-37 (7th Cir.),cert, denied,444 U.S.833 (1979); Hunydeev. United States, 355 F.zd 183 (9th Cir. 1965); and Contínental Oil Co. v. Unitetl States,330 F.zd 347 (gth Cir. 1964X and as contemplated in the California cases of California Oak Foundatîon v. County of Tehama,174 Cal, App.4th 1217,1222-23 (2009); Oxy Resources CalÍþrnia LLC v. Sttperior Court, I l5 Cal. App. 4th 874 (200a); and Raytheon Co. v. Superíor Court,208 Cal. App. 3d 683 (1989); and in Califomia Eviclence Code section 952 and/or recognized under state and federal law, including such rights that exist independent of rights described in this Agreement. J 6 r l,r7 80008\309965:4 ó 1,2 Definition of Privileged lnformation. Privileged lnflormation, as used herein, shall include all writings as defined in Califomia Evidence Code section 250, including all oral, electronic or wrinen communications including, but not limited to, meeting agendas, memoranda prepared by in-house and outside counsel, analyses, dratls of pleadings or comments to regulatory authorif¡es, or other materials or information, furnished by any Party to another Party or Parties involving matters related to the Litigation, or any other summary, analysis, report or other document containing inlormation extracted, obtained or deríved from such communications, but excluding such materials or discussions which have been mode public or disclosed to third parties without restrictíon as to use or disclosure. Privileged lnformation shall only be used by the Parties in connectíon with their rights to be informed about maners related to the Litigation. 1.3 Limited Disclosure. No Party shall disclose the Privileged lnlormation received under this Agreement to Bny person other than its directors, officers, employees, legal counsel, âccountants, agents and subcontractors (collectively, the "Qualified Persons") who require knowledge of the Privileged lnformation f'or the purpose of evaluating or conducting the Litigation, and in no event shall such disclosure cause the Privileged Information to become a record subject to disclosure pursuant to the Califomia Public Records Act. Each attorney for a Party shall inform such PaÍy's Qualified Persons of the privileged nature of the Privileged Information. Each such Qualified Person shall be bound by the terms of this Agreement prior to any disclosure. lf any Party violates the terms of this paragraph, such disclosure(s) shall not have been authorized and, therefore, shall not constitute a waiver of any applicable privilege, Each Party shall be responsible for any breach of this Agreement by its Qualifìed Persons. 2, Purpose. The purpose of this Agreement is to ensure that such exchange or disclosure of Privileged lnformation in funherance of the Parties' joint legal efforts does not diminish in any way the confidentiality of the Privileged lnformation or constitute a waiver of any privilege or protection accorded to the Privileged lnformation, and the Parties hereby declare their intent that no sharing of information as set forth above shall waive the applicable anomey work-product privilege, attomey-cl¡ent privilege, trade secret privilege, the joint defense privilege, or any other applicable privilege, protection or doctrine. To the maximum extent permined by law. the sharing of Privileged Information shall be undertaken in a manner that protects Privileged Information from public disclosure under the Ralph M. Brown Act, the Califomia Public Records Act or other applicable law. 3. Markins Written Materials. All written Privileged lnformation exchanged will be clearly marked "CONFIDENTIAL: SUBJECT TO JOINT LITICAT¡ON PRIVILECE," or..SHARED UNDER THE JOINT NONDISCLOSURE AND LITIGATION AOREEMENT AMONG PARTIES," oT "SUBJECT TO JOINT LITICATION PRIVILEGE." The Parties will use the¡r best efforts to so mark all such written materials, and rvill instruct their attorneys, paralegals, and clerical and other personnel as to this requirement, provided, however, that failure to mark such exchanged written mater¡als shall not be treated as waiving the joint litigation privilege as to any materials not so marked, This requirement flor marking of materials is prospective in nature and does not apply to materials previously exchanged pursuant to oral or writte n joint defense agreements not containing a requirement for such marking. 4 ór I 47 80008U099652.r 6 4. Exceptionq. The restrictions of this Agreement on use and disclosure of Privileged lnformation shall not apply to inlormation that: a) is in the possession or control of a Party at the time ofl its disclosure hereunder free of any obligation of Party to keep such Privileged lnformation confìdential; b) is or becomes publicly known or available, by actions not in violation of this Agreement; c) is received by a Party from a third party free to disclose it without obligation to any other Party; d) is disclosed to third parties without restriction as to its use or disclosure by the Party who alone has prepared or obtained the information disclosed, and which information contains no privileged or protected information obtained directly or indirectly from another Party; e) is approved for release by written authorization of the Parties; or f) is required to be disclosed pursuant to any applicable statute, law, rule or order of any govemmentalauthority or pursuant to any order of any court of competent jurisdiction. 5. Protecþd bommunications. The Privileged lnformation addressed herein represents communications subject to the joint attorney work-product privilege and/or the attomey-client privilege and/or the joint defense doctrine and/or the trade secret privilege as defined by Califomia law (collectively, "Joint Defense Communications"). lf used by a Party hereunder for purposes other than intemal evaluation of legal issues related to the Litigation, such use would unfairly prejudice and irreparably harm the rights and interests oFall the Parties. Each of the Parties and counsel agree that any Joint Defense Communications they receive from any other Party or its representatives shall be treated and maintained as privileged and confidential communications. Execution of this Agreement constitutes mutual agreement that any consultations among the Parties and their respective counsel, and any sharing or pooling of work product or other confidential documents, are reasonably necessary for the accomplishment of the purpose for which the Parties' counsel have been consulted and retaincd. The Parties agree that any consultations among them or their counsel, and any sharing or pooling of work product or other confidential documents, are in reliance on the joint litigants' privilege. The Parties further agree thât the joint litigants' privilege as it relates to the consultations, information, data and other documents covered by this Agreement mây not be waived except with the consent of the Parties. 6. Third-Partv Claims of Waiver. Should any third party claim th¡t an otherwise applicable privilege has been waived as a result of any exchange or disclosure of Privileged lnformation made pursuant to this Agreement, the Pa¡ties agree to join in defending such claim of privilege or protection. 5 ó¡ t47 80008\30996524 ó 7. Disclosure Requirements. lf a Party or its Qualifìed Persons become subject to a bona fìde requirement by law, regulation, deposition questions, intenogatories, Public Records Act request, Freedom of lnformation Act request, other type oflrequest for inFormation or documents, subpoena, civil investigative demand or similar process (collectively, a 'oRequirement") to disclose any Privileged lnformation, such Party (i) will, prior to producing any Privileged Information, promptly notify all other Parties olthe existence, terms and circumstances of such Requirement(s) so that any other Party may seek an appropriate protective order, and (ii) will cause its Qualified Persons to cooperate fully with any other Party in seekïng a protective order. lf a Party subject to a Requirement, who has complied with the notification and cooperation obligations describcd in the preceding sentence, is compelled, in the opinion of its legal counsel, to disclose Privileged Information or else stand liable for contempt or other substanti¿l penalty, such Party will fumish only that portion of the Privileged lnformation which is legally required pursuant to the terms of such Requirement as modified by any protective order. 8. Diçclosure to Clients, Counsel receiving Joint Defense Communications and materials may disclose those communicat¡ons to their respective clients, but may not disclose such Joint Defense Communications to any other person wíthout the consent of the Party providing the privileged and confidential information. Any unauthorized disclosure of any Joint Defense Communications to any third party shall not constítute a waiver of any applicable privilege, 9. Governine Law. This Agreement and any dispute hereunder shall be governed by and construed in sccordance with the intemal laws, other than the choice of laws, of the State of Calilornia. 10. No Warranty. No Party makes any wananty of any nature with respect to ony Privileged lnformation, including the accuracy and completeness thereof,, provided to any other Party pursuant to this Agreement. I l. No rWaiver. This Agreement shall not create any agency or similar relationship between or among the Parties. No Party shall have authority to waive any applicable privilege, protection or doctrine on behalf oFany other Party; nor shall any waiver of any applicable privilege, protection or doctrine by the conduct of any Party be construed to apply to any other Party. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or prÍvilege hereunder. 17, No Partnerghip or Joint Entity. This Agreement is not intended to and does not create a partnership or any other form of single or joint ent¡ty of any sort comprised of the Partíes and/or their attorneys. 13. No Oblieation tg Share lnformation No$ Shared or Exchanegg!. Nothing herein shall obligate a Party to share or exchange Privileged lnformation that has not been shared or exchanged pursuant to the terms of this Agreement, 6 6 I ì47 8000E\3099652{ 6 14. lndemnification. A. Real Party shall indemnify and pay for the reasonable cost of defense (with counsel as provided herein) for the City, its officials (appointed or elected), officers, employees, agents, departments, agencies, and instrumentalities thereof in the Litigation. B. Counsel for the City shall include Jeffrey S. Ballinger and Alisha M. Winterswyk, as well as otherattorneys and paralegals of Best Best & Krieger LLP (the "City Attomey"). The City's reasonable attorneys'fees and costs in defending the Litigation shall be reimbursed by Real Party as follows: (i) a separate billing fìle lor litigation shall be opened by the City Attorney; (i¡) the time shall be billed in 0.1 hour increments; (iii) City's attorneys' fees and costs shall be invoiced monlhly with a statement to Real Party redacted to preserve confidential information; and (iv) no cost in excess of $500 shall be incuned without Real Party's prior written approval. Nowithstanding the foregoing, Real Party's reimbursement shall be conditioned upon the City's cooperation with Real Party in the Litigation and joint defense of the Project. C. Counsel for Real Party and the City Attomey for the City shall reasonably cooperate with each other in connection with their respective investigations and the Litigation. City and City Attorney shall provide Real Party, its consultants, investigators, expeßs, and counsel, access to the City's public fìles and documents upon reguest during normal business hours. Þ. Each Party shall comrnunicate promptly to the other Party any offers received for the settlement of the Litigation. City shall secure Real Party's consent to any settlement. Real Party shall secure the City's consent to any settlement. Such consent shall not be unreasonably withheld by either Party. I 5. Acknowledement of Independent Representation. Each Party understands and acknowledges that it is represented only by its own ottorneys in the Litigation, and that nothing in this Agreement creates an attomey-client relationship between such Party and the attorney for any other Party. While attomeys represenling a Party have a duty to preserve the confidentiality of Privileged lnformation disclosed to them pursuant to this Agreement, such attomeys will not be acting for anyone otlrer than their respective client or clienls in doing so. The attomeys representing a Party owe duties, íncluding the duties oflcare and loyalty, only to their respective client or clients, and nothing in this Agreement creates any duties between a Party and counsel for any other Party. 16. Entire Agreement: Amendments. This Agreement represents the entire agreement of the Parties in connection with the subject matter hereof and may be modified only in writing agreed to by all Parties. 17. Authorily. The signatories hereto represent and warrant that they have been duly authorized to enter into this Agreement by the Party on whose behalf it is indicated that the person is signing and, by such signature, to bind such Party to the Agreement. 7 6 r r47 80008\109965?4 6 I 8. Captions. The captions ofl the various articles and paragraphs are for convenience and ease of relerence only, and do not define, Iimit, augment or describe the scope, content or intent of this Agreement. 19. Effeqtive Date: Termination, This Agreement shall become effective as ol the date first above written and shall exist in perpetuity unless it is terminated upon rvritten notice by any Party or upon the resolution of the Litigation. Nevertheless, the Parties agree that privileged communications occurred beforc formalizing this Agreement, including communications that occurred leading up to and following the approval on March 20,2018, and those communications are and continue to be protected under the common interest doctrine. The confidentiality obligations and use limitations of the Parties with respect to Privileged lnformation previously exchanged shall remain in full force and effect, without regard to whether this Agreement is terminated or whether any particular action is terminated by finaljudgment or settlement. ln the event any Party settles or is othenvise dismissed from the Litigation, or for any other reason ceases to participate in this Agreement, such Party shall be obligated to continue to preserve the confidentiality of Privileged lnformation and any and all privileges pertå¡ning to Privileged Information as though the Party were still part of the joint prosecution/defense arrangement. The Parties agree that, in the event any Party determines that it no longer has, or no longer will have, mutuality of interest in a joint defense for any reason, including but not limited to a conflict of interest between the Parties, that Party will promptly notiþ the other Parties of its intent to withdraw from this Agreement. A lvritten notice of termination shall constitute a terminat¡on oFthis Agreement, provided, how€ver, that no such termination shall affect or impair the obligatíons of confidentiality and privilege with respect to Privileged f nformation previously furnished puÍsuånt to this Agreement. Any party so withdrawing will immediately retum atlcopies of any written materials provided. 20, Reserv4tion of RiBhs anC C-laimå. Each of the Parties mutually reserves all rights and claims against the other Party arising out of the alleged conduct and actions alleged in the Litigation or arising out of a conflict of interest between thc Parties, as well as all defenses that are or may be available to each of the Parties. The Parties waive any right to seek disqualiFrcation of any othe¡ Party's attorney based on that attorney's receipt of confidentialor Privileged lnformation subject to this Agreement which was received while this Agreement was in effect. The Parties agree that the existence oflthis Agreement shall not be disclosed or used ofiensive ly or defensively in any proceeding involving the Litigation (except that this Agreement may be disclosed or used by any Party hereto in any proceeding to maintain and protec! consistent with the intent of this Agreement, the confìdentiality of all Privileged Inlormation); nor will any Party claim that any counsel to a Pa(y is disqualifîed flrom any proceeding by reason of this Agreement or the sharing of Privileged lnformation under this Agreement. 21, lndependent Prosecution or Defense. Nothing in this Agreement shall limit or interfere with the right and ability of a Party to conduct its own independent prosecution or defense of matters relating to the Litigation and the claims therein, including filing appropriate motions, conducting separate and independent discovery, entering into individual settlements, or otherwise engaging in prctrial procedures for the benefit of the Party. I 6 r t{7 80008u099ó531 6 22. Confidentiality. The Parties and their attorneys each agree to keep confidential the existence of, and the terms of, this Agreement except to the extent required to enforce its provisions or as required by the Ralph M. Brown Act, the California Public Records Act, or any other applicable law or statute. 23. Severability. ln the €vent thât âny covenant, condition or other provision of this Agreement is held to be invalid, void or illegal by a cóurt of competent jurisdiction, it shall be deemed severable from the remainder and shall in no way affec[ impair or invalidate any othcr covenant, condition or provision of this Agreement. 24, Suppþmentary Activity. The Parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full florce 1o the basic terms and intent of this Agreement, and rvhich are not inconsistent with its terms. 25. Remedies. Breach of this Agreement by unauthorized disclosure will cause ineparable harm for which there is no legal remedy, thereby entitling the other Party to seek injunctive or equitable relief, including without limitation, specifrc performance of this Agreement or an injunction against breach of this Agreement. 26. Attqrnevs' Fees: Venuer ln the event that e ither Party shall commence any legal action or proceeding to enlorce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorneys' fees. The venue for any litigation shall be Orange County. ln the event of any asse¡ted ambiguity in, or dispute regarding, the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the drafting party. This Agreement shall be governed by and interpreted under the laws of the State of Califomia, 27. Suc,cessors and Assiglis. This Agreement shall inure to the benefìt of and be binding upon the successors, successors-in-interest, assigns or affiliates of the Parties. 28. Others Joinine Asreement. Any person wanting to join this Agreement must be approved by unanimous agreemsnt of the original Parties to this Agreement. 29, Consultants. This Agreement shall apply to any and all consultants retained by each of the Parties and to each Party's legal counscl. 30. Notices. All notices and demands of any kind which any Party may require or desire to serve on the other in connection with this Agreement must be served in writing either by personal service or by registered or certified mail, return receipt requested, and shall be deposited in the United States mail, with postage thereon fully prepaid, and addressed to the Party so to be served as follows: ç ór r47 80û08u099652J 6 To The City: Benjamin Siegel, City Manager City of San Juan Capistrano 32440 Paseo Adelanto San Juan Capistrano, CA 92675 rilith a copy to: Jeffrey S. Ballinger, City Attorney Best Best & Krieger LLP 655 West Broadway, lSth Floor San Diego, CA 92101 To Real Party: Mission Commercial Properties, lnc. Jake Griffith 3 I 866 Camino Capistrano San Juan Capistrano, CA 92675 With a copy to: K. Erik Friess Allen Matkins 1900 Main Street,5th Floor lrvine CA 92614-7321 31, Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts, all of which, when taken together, shall constitute the agreement of the Parties. Facsimile and email transmitted copies of signed counterpârts of this Agreemcnt shall be deemed as authentic and valid as an original of this Agreement. 32. No Admissions. Nothing contained in this Agreement shall be construed to constitute an admission of any liability on the part of any Party with respect to the Litigation or any issues or claims related thereto, or other matters associated therewith. (Signatures on lollowing page) ó I 147 80008U099ó524 6 tû IN WITNESS WHEREOF, the Parties have executed this Joint Nondisclosure, Indemnity and Litigation Defense Agreement on the date first set forth above. SAN JUAN CAPISTR.A,NO, a municipal corporation MISSTON COMMERCIAL PROPERTIES, INC., a California By Benjamin Siegel, City Manager By: DâtE Name:' Title: Date! ATTEST:APP By: Erik Fricss Maria Morris, City Clerk APPROVED AS TO FORJVI: Jeffrey S. Ballinger, City Attorney Date: Þare: f{lz /çrrs t" By: 6t lJ7 80008u099ó5:{ 6 il