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.
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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.
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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.
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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.
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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,
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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.
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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.
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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