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09-1006_CASITAS CAPISTRANO ASSOC NO.2._Tolling Agreement CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC. VS. CALIFORNIA DEPARTMENT OF TRANSPORTATION Orange County Superior Court,West Justice Center Case No: 30-2008-00116669 TOLLING AGREEMENT (A). PARTIES AND PURPOSE: THIS TOLLING AGREEMENT(hereinafter the"TOLLING AGREEMENT) is hereby entered into by and among Casitas Capistrano Association Number Two, Inc., a California corporation (hereinafter "ASSOCIATION"), the City of San Juan Capistrano, a municipality (hereinafter "CITY'), and the State of California acting by and through its Department of Transportation(hereinafter"CALTRANS'). The foregoing parties to this AGREEMENT,to wit, ASSOCIATION,CITY,and CALTRANS are sometimes hereinafter collectively referred to as the "TOLLING PARTIES." (B). RECITALS: Whereas as a result of the alleged failures of CITY and/or CALTRANS owned and/or maintained real property and/or improvements thereon,and the resulting flooding of and damage to ASSOCIATION Common Areas and Member Separate Interests,the ASSOCIATION,the CITY, and CALTRANS were named as defendants in a lawsuit filed by ASSOCIATION Member Irene Burnham in the Orange County Superior Court, Central Justice Center, on May 30, 2001 (subsequently designated as CaseNo.01 CC06926),wherein Ms.Burnham sought monetary damages and injunctive relief against the named defendants. Whereas on or about August 29,2001,the ASSOCIATION filed its cross-complaint in the foregoing action,naming as cross-defendants,the CITY and CALTRANS,amongst others. Whereas,on January 10,2002,Association Members Gerald B.Wright,Edwardo Lara,and Delorez M. Hernandez filed nearly identical complaints to the complaint previously filed by ASSOCIATION member Irene Burnham in the Orange County Superior Court naming the ASSOCIATION, THE CITY, and CALTRANS as defendants therein, which matters were subsequently designated as Orange County Superior Court Case Nos.02CC01335,02CC01333 and 02CCOI336 respectively,and subsequently consolidated with Orange County Superior Court Case No.01 CC06926 by the court herein. Whereas the entirety of the foregoing consolidated matters were resolved by way of the execution ofvarious written settlement agreements entered into by and between the respective parties to the consolidated actions, including without limitation a SETTLEMENT AGREEMENT AND Page 1 of 6 0� RELEASE OF ALL CLAIMS(hereinafter"SETTLEMENT AGREEMENT"entered into in or about December 2004, among ASSOCIATION,CALTRANS and the CITY (a true and correct copy of which SETTLEMENT AGREEMENT is attached hereto as Exhibit"A"and is hereby incorporated by reference heroin). Whereas the ASSOCIATION contends that the CITY and CALTRANS breached the SETTLEMENT AGREEMENT by way of alleged failures to complete their obligations provided for within the SETTLEMENT AGREEMENT in a timely manner. Whereas the ASSOCIATION subsequently filed its within complaint (OCSC Case#: 30- 2008-00116669) 0- 2008-00116669) seeking damages, declaratory relief, and specific performance (hereinafter the "ACTION")against the CITY and CALTRANS on December 29,2008(a true and correct copy of the complaint [without exhibits] filed in such ACTION is attached hereto as Exhibit "B" and is hereby incorporated by reference herein). Whereas the CITY has represented that on April 7,2009,the CITY council approved the expenditure of all additional funding necessary to complete the previously agreed upon improvements and modifications to the subject drainage devices and fixtures. W heareas the CITY has additi onallyrepresented that the plans reflecting the previousl y agreed upon improvements and modifications to the drainage devices and fixtures are substantially completed and will be completed in their entirety by in or about December 2009(true and correct copies of such incomplete plans as they currently exist are attached hereto as Exhibit"C"and are hereby incorporated by reference herein). Whereas the GStyhas additionallyrepresented that the previouslyagreed upon improvements and modifications to the foregoing drainage devices and fixtures will be initiated in or about April 2010,and will be completed by in or about June 2010. Whereas the TOLLING PARTIES desire to avoid any fiuther unnecessary expense or litigation costs herein to the extent that they can be avoided by mutual cooperation ofthe TOLLING PARTIES. (C). TERMS OF AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises and undertakings, the TOLLING PARTIES hereby agree as follows: 1. Dismissal of the Underlying Action:Pursuant to the terms of this AGREEMENT, within ten (10) days of the complete execution thereof, and in exchange for the tolling of all applicable statutes of limitation and/or repose,and/or time frames applicable to potential defenses of laches or delay or failure to prosecute the within action,as more fully set forth hereinbelow,the ASSOCIATION will file a completed Request for Dismissal(without prejudice)of the ACTION in its entirety. Page 2 of 6 2. Duration of TOLLING AGREEMENT: The within TOLLING AGREEMENT shall be effective for a term of one hundred-eighty(180)days from the date of filing of the foregoing Request for Dismissal of the ACTION. 3. Tolling In Effect: During the term of the within TOLLING AGREEMENT, the operation of all periods oflimitation,statutes of limitation or repose,and/or the passage of time with respect thereto,or with respect to the assertion of any defenses to the underlying ACTION,relying on or arising from the passage of time or a specified time period, including without limitation, laches,waiver,delay and/or failure to prosecute the within ACTION shall be tolled in their entirety and the period within which this TOLLING AGREEMENT is in effect,shall not constitute expired time,nor mayitbe counted as contributing toward any such passage oftime or specified timeperiod. 4, Expiration: The within TOLLING AGREEMENT shall expire one hundred-eighty (180)days a$ez the date of filing of the Request for Dismissal of the within ACTION as provided for hereinabove,unless and until it is renewed in a writing executed by each and every one of the TOLLING PARTIES, or unless it is terminated by way of the ASSOCIATION's refiling of the within ACTION as provided for in paragraph(C)5 hereinbelow. Upon expiration of the TOLLING AGREEMENT,all time frames, periods,and operation of defenses based thereon,previouslytolled by way of this TOLLING AGREEMENT will again begin to run and accumulate as of the date of expiration thereof,excluding therefrom,the one hundred-eighty(180)day period ofthis TOLLING AGREEMENT, or any lesser period for which the TOLLING AGREEMENT was in operation. S. Caneellation: To the extent that the ASSOCIATION re-files its within ACTION against the CITY and CALTRANS during the operation of the within TOLLING AGREEMENT, such filing shall terminate the within TOLLING AGREEMENT effective as of the date of filing of such ACTION. 6. Effective Ffte Date:To the extent that the within ACTION is dismissed and for any reason to-filed by the ASSOCIATION,during the operation of the TOLLING AGREEMENT, there shall be a relation back to the original filing date ofthe within ACTION ofDecember 29,2008, so that for all intents and purposes,any re-filing of the ACTION shall be deemed to have been filed as of December 29,2008,regardless of the actual filing date of such re-filing. (D). GENERAL PROVISIONS AND REPRESENTATIONS: 1. No Adrabsion of UabilitX:It is agreed and understood that each of the TOLLING PARTIES deny all allegations of liability which may be asserted against any of them,by any other of the TOLLING PARTIES, and that this TOLLING AGREEMENT does not constitute an admission by any of the TOLLING PARTIES of the truth or validity of matters in controversy,nor shall it be construed as such 2. Successors and Assigns: This TOLLING AGREEMENT shall be binding upon and inure to the benefit of the TOILING PARTIES and their respective successors and assigns. Page 3 of 6 3. Entire Agreement: This TOLLING AGREEMENT contains the entire understanding of the TOLLING PARTIES with respect to the subject matter herein. There are no representations,conveniences or understandings other than those expressed or referred to therein. Each party to this TOLLING AGREEMENT acknowledges that no other party or agent or attorney of any other party has made any promise, representation or warranty, expressed or implied or statutory, not contained or referred to herein concerning the subject matter of the TOLLING AGREEMENT,to induce that party to execute this TOLLING AGREEMENT in reliance upon any promise,representation or warranty not specifically contained or referred herein. No amendment or addition to this TOLLING AGREEMENT shall be valid unless such amendment or addition is in writing and signed by all parties hereto. 4. No Prior Assignments: The TOLLING PARTIES,and each of them,warrant and represent that no claim or right to be released under this TOLLING AGREEMENT has been affirmatively transferred,hypothecated,assigned or given away by that party prior to the execution of this TOLLING AGREEMENT to any person or entity that would not be bound hereby,except as expressly provided for by law. Each of the TOLLING PARTIES shall indemnify,defend and hold harmless every other party to this TOLLING AGREEMENT with regard to any and all claims resulting from its own breach of this warranty and representation. 5. Investigation: Each party to this TOLLING AGREEMENT has made such investigation of the facts pertaining to the TOLLING AGREEMENT that it considers necessary. This TOLLING AGREEMENT is entered into freely and voluntarily by the TOLLING PARTIES hereto with the approval and advice of their respective counsel. 6. JJoiatProduct This TOLLING AGREEMENT is the product ofbargained for,arms length negotiations between the TOLLING PARTIES and their counsel in good faith and without collusion, and shall not be construed for or against any of the TOLLING PARTIES or their representative(s). 7. Severability: If anyprovision of this TOLLING AGREEMENT is held to be invalid or unenforceable,all of the remaining provisions shall nevertheless continue in full force and effect. 8. Counter Parts: This TOLLING AGREEMENT may be executed in one or more counterparts and,when said counter parts are taken together,shall constitute one original TOLLING AGREEMENT. In addition,aphot000pyofthis TOLLING AGREEMENT(including the executed signaturepages)"I be the equivalent of the original executed document and may serve in theplace and stead of the original for all purposes. 9. California Law:This TOLLING AGREEMENT shall be construed according to the laws of the State of California 10. Benefit of Counsel:Each of the undersigned further warrants that he or she has read the entire TOLLING AGREEMENT,understands it and in addition,has received independent legal advice from counsel as to the advisability of executing this TOLLING AGREEMENT and with Page 4 of 6 respect to all matters contained herein. 11. Legal Capacity: Each of the undersigned warrants that he or she is of legal age, legally competent to execute this TOLLING AGREEMENT,and has the authority of the party for whom the undersigned is executing this TOLLING AGREEMENT. The TOLLING PARTIES each wan-ant they have all requisite power and authority to enter into and perform this TOLLING AGREEMENT and to consummate the transaction contemplated hereby, and such TOLLING AGREEMENT and performance thereunder is neither prohibited, nor objected to by any agents, servants, subsidiaries, affiliates, insurers or sureties of any of the TOLLING PARTIES. The execution, delivery, consummation and performance of this TOLLING AGREEMENT have been duly authorized and approved by all necessary persons, entities, and/or actions of the TOLLING PARTIES and this TOLLING AGREEMENT is a valid and binding obligation of the TOLLING PARTIES and is enforceable in accordance with its terms. Each of the TOLLING PARTIES shall indemnify,defend and hold harmless every other party to this TOLLING AGREEMENT with regard to any and all claims resulting from its own breach of this warranty and representation. 12. AMmel+',s Fees and Costs in the Event of Breach: To the extent that any action or proceeding to enforce,interpret,or compel performance under this TOLLING AGREEMENT is necessary, the prevailing party of parties therein shall be entitled to recover their reasonable attorney's fees and costs incurred in such proceeding or action. PLAINTIFF: Dated: Z.Zj 2009 CASITAS CAPISTRANO ASSOCIATION NUMB O, INC. By: Its: , nn DEFENDANTS: LQ Dated: Ga 12009 CITY OF SAN JUAN CAPISTRANO, a Municipality Q By: �l Title: Ak of Page 5 of 6 Dated: 2009 STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION By: Title: APPROVED AS TO FORM Dated: -Z5 ,2009 FELDSOTT&LEE By: GRE LE Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO, INC. Dated: �� b O 2009 WOODRUFF,SPRADLIN&SMART By: CRAIG G F GTON Attorneys for dant CITY OF SAN JUAN CAPIS O,a Municipality Dated: 12009 STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION By: CHRISTOPHER WELSH Attorneys for Defendant STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION I Page 6 of 6 Dated:—. 1 2 2009 STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION By Title: `I &yey ettl fEeeyaJf r` APPROVED AS TO FORM Dated: 12009 FELDSOTT&LEE By: GREGORY S.LEW Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC. Dated: .2009 WOODRUFF,SPRADLIN&SMART By: CRAIG G.FARRINGTON Attorneys for Defendant CITY OF SAN JUAN CAPISTRANO,a Municipality Dated: �L 2009 STATE OF CALIFORNIA.ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION CWJsy: STOPH H Attorneys for Defendant STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION Page 6 of 6 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On October 6, 2009, before me, Maria Morris, Acting City Clerk, personally appeared Mark Nielsen, Mayor,who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) WI NES y d and off}cial seal. I� Maricting Cit Cl k OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Officer title Tolling Agreement — Casitas Capistrano Mayor Association Number Two, Inc vs. California Department of Transportation Signers are Representing City of San Juan Capistrano SETTIAMENT AGREEMENT AND RELEASE OF ALL CLAIMS This SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS ("AGREEMENT"),is made this day of December,2004 by,between and wrong Defertdann,Cross-Complainants and Cross-Defendants: the City of San Juan Capistrano("the CfTY"); the State ofCaiffbmia Department ofTransportetfon CrALTRANS"); and(atsitas Capistrano Association,No.Two,Inc.( CASITAS'). All of the foregoing listed parties to ibis AGREEMENT are hereinafter collectively referred to as the"PARTIES." It is intended by the PARTIES to settle fully and finally any and all differences between them regarding the below- described matters. This AGREEMENT is made with reference to the following fads: 1. RECITALS A. On May 30,2001,Irene Bumbam filed a civil complaint against various defendants,including the CITY,CALTRA14S and CASITAS in the Orange County3eperior Court entitled Burnham v.Department of Transportation,et al.,Case No.01 CC 06926,alleging causes of action including inverse condemnation,nuisance and negligence. Three additional civil complaints were filed on behalf of additional plaintiffs,all of which arose from the same alleged fads and involved similar damages. The additional cases consist of: Lara v.Dept,of Transportation,et al.,Case No.02 CC 01333; #WgN P.Dept.of Transportation, el at,Casa No.02 CC 01335; and Hernandez v.Dept.of Transportarlon,at al.,Case No.02 CC 01336. The four complaints were consolidated for purposes of trial and shall hereafter be collectively referred to as the"COMPLAINTS." B. Plaintiffs'complaints alleged that their condominium-type homes sustained water intrusion and resulting damage arising from deficiencies in the nearby drainage facilities owned andlor maintained by the CITY and CALTRANS. The CITY,CALTRANS,and CASITAS tiled cross-complaints against one another seeking various Corms of indemnity and contribution. The CiTY and CALTRANS cross-complaints asserted that CASITAS tailed to properly develop and/or maintain its common areas,which caused,contributed to,or exacerbated the plaintiffs' damages, CASITAS alleged that the nearby CITY and CALTRANS drainage facilities caused damage to its common area property, C. The CITY,CALTRANS and CASITAS have completed settlement agreements, with all of the plaintiffs. This AGREEMENT addresses ONLY the cross:actions remaining between the CITY,CALTRANS and CASITAS. By this AGREEMENT,these PARTIES wish to buy their peace and avoid the cost of further litigation and toward that end, make the following agreements and releases: Z. SPECIFIC TERhiS OF AGREEMENTS A]Yg M -ASES A. The CITY has designated money in the general fund to be used to increase the capacity ofits storm drain facility located in the vicinity of the Cas;IW Capistrano Association Nb:Ta0,11id;tl"bphfenL'Fot fisCef ycW2004.2005;the CITY hasatloaated Sa 23,000 for... .,. . . . design specifications; for fiscal year 2005.2006,(he CITY has allocated$511,500 for coln;tt peliVIL At tlm tin-of this A MTEMPNT,rpmntrlr.11"mil9 fnr rhn dmign Mm6fications and cousnvction are not available. 17.446rt.111 11711-1$ l B. The CITY agrees that the designated funding will be used to install additional underground drainage pipes to increase the southerly[low capacity along Calle Rosplendor, The intended result is that the increased drainage capacity will better accommodate the flow Coming Into the CITY'S system from the adjacent CALTRANS system. The increased capacity is also intended to alleviate the slow drainage conditions that have been experienced by the residents living in the CASITAS development in the vicinity of the CITY and CALTRANS'drainage facilities. C. The CITY,CALTRANS and CASITAS acknowledge and agrx that the entire drainage upgrade project will benefit from being studied,designed and carried out by the same engineer. The CM will therefore have its agents and engineers take the lead role in studying, designing and constructing the entire drainage upgrade project. CALTI ANS and CAST£AS expressly acknowledge and agree that it will be necessary to grant the CfiY and the C MS agents access to their respective properties in order to complete this project. Such access may require the granting of casement(s)andlor encroachment permit(s)necessary to undo•r[aYce the study,design and/or construction of the drainage upgrade. CALTRANS and CASITAS therefore agree to cooperate with the CiTY in this regard. I D. CALTRANS agrees to pay for the costof the design and construction ora connection of the CALTRANS outlet to the CITY Inlet located adjacent to CASITAS'property. In approximately October of 2004,the CITY obtained estimates from AKM Engineering in the amount of$14,970 in design costs for this junction structure. CALTRANS agrees to pay for the costs of design for tbejunction structure portion of rhe project,in an amount not to exceed S14,970. in September oi'2001,the CITY obtained an estimate from AKM Engineering in the amount of$45,000 plus 20%contingencies,plus 20%engineering and construction administration for a total'estimated cost of$63,000 to complete the junction structure joining the two drainage pipes. CALTRANS and the CITY acknowledge and agree that the actual costfor this portion of the project will likely vary Nm the estimate because of the passage of time and may vary[tact the estimated amount based on unforeseen contingencies. CALTRANS agrees to cooperate and maintain design oversight with the CITY by providing permits or easements as noces utry for the CITY and those working on behalf of the CITY as required for completion of this portion of the drainage upgrado project. The CITY,CALTRANS and CASITAS agree that any delay on the part of CALTRANS in Funding this portion of the drainage upgrade will not delay or hinder in any respect,the remaining portions of the upgrade project, E. CASITAS agrees to pay for the cost of the design and conshtrction/installadon of a surface drain in the CASITAS common area located adjacent to the unit located at 30718 Calle Resplendor. At the time of the execution of this AGREEMENT,there Is no surlkce drain located in the subject common area. The CITY,CALTRANS and CASITAS acknowledge and agree that the absence of a method to drain surface water from the subject common area is likely to result in ponding and/or flooding in that area even with the completion of the drainage upgrade as planned,because the subject common area is improperly graded,causing water to pond In that •4osatian, ktepproxtmatcly iZctnbcr Rf.M,thq&l7'Y obtained estimates from AKM Engineering In the amount of$3,964 to design the proposed drain and M,IT3 Y6 EbdStt Eche" proposed drain. CASITAS agrees to pay for the costs ofdesfgn and consuvction/installatlon of the curfhce drain in the CASITAS common area,in an amount not to exceed$3,964 for the design cost and-In an amount not to e*cPrA`F25,113 for the construction/Installation cost. •the 17•44652,I12 tn17-ts 2 r i CITY,CALTRANS and CASITAS agree that any delay on the part of CASITAS in landing the design and eonstrvction/insiallation ofa surface drain in the CASITAS common area will not delay or hinder in any respect,the remaining portions of the upgrade project. The CITY, CALTRANS and CASITAS further agree that the CITY and CALTRANS shall not be liable for any adverse affect caused or contributed to by the ponding of water in the subject common area. F. The CITY agrees to defend and indemnify CASITAS with regard to any damage arising froth negligence on the part of the CITY related to the construction of the drainage upgrade during the period of construction of the drainage upgrade. G. In the event that CASITAS sustains damage(s)rosuhtng from overflow or runoff during the construction of the drainage upgrade and until such time as the construction is complete,(he CITY,CALTRANS and CASITAS agree as follows: 1, The CITY and CALTRANS agree toequally participate in the crJXM ' repair to CASITAS'property to the extent of two-thirds of the cost of repair. 2. The CITY and CALTRANS agree to defend and indemnify CASITAS arising from liability to any third party. Said duty to defend and indemnify on the part of the CITY and CALTRANS shall extend to two-thirds of the total cost to , defend and indematfy. H. In exchange for the waiver of any potential entitlement to attorneys fees,costs or any other expenses arising from the COMPLAINT,excluding those expenses arising from the drainage upgrade as described in the preceding paragraphs,the CITY,CALTRANS and CASITAS hereby agree to dismiss their respective Cross-Complaints with prejudice and release and forever discharge the CITY,CALTRANS and CASITAS and their respective administrators, employees,agents,representatives,directors,officers,panners,heirs,predecessors,successors, assigns,insurers,third-party administrators,subsidiaries and attorneys from any and all Jahns, demands,actions,or causes of action fbr injuries or damages,which they have had,may now have,or may hereaftcr'have,excepting the agreements to defend and indemnity during the pendency of the project as described in the preceding paragraphs,arising out of alleged acts or omissions that have been or could have begirt asserted or to any way connected with the facts and circumstances giving rise to the parties'respective cross-Complaints it led as part of this litigation. 3. ATTORNEYS FEES AND COSTS All PARTIES to this AGREEMENT each agree to waive any entitlement to attorneys' fees and costs incurred with respect to the litigation arising from the COMPLAINT'S and all PARTIES shall bear their own attorneys'fees and costs. tr-saaszrn tratvts 3 4. NO ADMISSION OF LIABILITY Liability and damages aro disputed and this AGREEMENT shall not beconstrued as an admission thereofby any PARTY. S. WAI VER OF CALIFORNIA CIVIL.CODE SECTION 1542 I All PARTIES hereby acknowledge that this AGREEMENT shall apply to any and all claims or causes of action,whether known or unknown,suspected or unsuspected,and whether or not other fasts might cater come to light that would have affected the decision to enter into this AGREEMENT. Accordingly,all PARTIES hereby agree to waive any and all rights that they may have under California Civil Code§1542 and any and all similar provisions from other jurisdictions Insofar as the same may apply to the matters in this AGREEMENT. California Civil Code§1542 provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLARVIS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING TOE RELEASE,WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HTS SETTLEMENT WITH THE DEBTOR!" This undersigned PARTIES understand that they may have sustained damages which have not yet manifested themselves and which are presently unknown,but nevertheless,the undersigned PARTIES del iberately intend to and hereby do release any and all potential further or future claims or causes of action in any way connected with the Pacts and circumstances giving rise to the COMPLAINTS or the PARTIES'respective Cross-Complaints filed as part of Us litigation, All PARTIES warrant and represent that the effect and import of the provisions of Section 1342 have been fully explained to them by their respective attorneys and they expressly acknowledge understanding of the some. 6. !DISMISSALS The CITY,CALTRANS and CASITAS shall execute dismissals,with prejudice,of their respective Cross-Complaints. 7. REPRESNTATIONSAND/OR WARRANTIES Each of the PARTIES to this AGREEMENT,including their respective attorneys, otrcers,directors,agents,servants,or employees,or any of them,have not erode any promise, representation,or warranty whatsoever,express or implied,to induce the others to execute this AGREEMENT,and thus,the PARTIES acknowledge that they have not executed this AGREEMENT in reliance upon any such promise,representation,or warranty, _.:. . tion,or in addddi ono;t(i shorche wTrl7trs a acknowledgebt7feve ro be ttua discover i sa cmcts different subject matters encompassed by this AGREEMENT,and agree that this AGREEMENT shall be mud lemaiu o octivo in all respects not vithwtandin-v any subsequent discovery of different andlor additional fads. In furtherance of thus intention,this AGREEMENT is iatcndcd to bF and Is, 17-14697,1N 11717.13 4 I final and binding regardless of any claim of misrepresentation,promise made without the intention to perform,concealment of fact,mistake of law or fact,or any other circumstance whatsoever. & VS9 OF AGREEMEN This AGREEMENT is entered into witboutprojudice,shall not constitute precedent and is not intended to be,nor shall it be construed Man interpretation of any contract or transaction and shall not be used as evidence,or in any other meaner,In any court or dispute resolution proceeding regarding any other claims between the parties. 9. COMPLETE AGREETMIENT This AGREEMENT constitutes the entire understanding and AGREEMENT among the PARTIES concerning the subject manors bercog and supersedes and replaces all prior- negotiations,proposed releases and agreements,written and oral. Because of the nature of the ongoing construction'of the drainage upgrade project that is the subject of this AGREEMENT, should the PARTIES determine that an additional or subsequent agreement is necessary to address unforeseen contingencies not provided for In This AGREEMENT,ft PARTIES agree that any such further matters shall not be effectiae unless reduced to writing. 16. INDEPENDE-NI COUNSEL Each PARTY hereto represents and warrants to each other PARTY hereto that it has received independeat legal advice from attorneys of their own choosing with respect to the legal effect of this AGREEMENT,and furdxr represents sad warrants that it has carefully reviewed this entire AGREEMENT and that each and every term hereof is understood and that the terms of this AGREEMENT are contractual and not a mere recital. 11. GOVERNING LAW This AGREEMENT shall in all respects be interpreted,enforced and governed under the laws of the State of California. 12. INTERPRkTATION The PARTIES have Jointly drafted this AGREEMENT. Hence,the PARTIES agree that the terms of this AGREEMENT,or any of them,shall not be interpreted against or in favor of any PARTY on the ground that any PARTY participated in the drafting of this AGREEMENT. The PARTIES further agree that any uncertainty and ambiguity shall not be interpreted against any PARTY. 13. CLQUNTERPARTS This AGRLEMENT may R execufe"d5"n d'ric 8t rh Yt6'dbuhtbrpatis;each of whkhaheN be deemed an original. 17-Ha77.ln 11317-15 5 14. AUTHORITY OF MICNATORMS The signatories hereto have each represented and warrant that they have lull power and authority to enter into and execute this AGREEMENT on behalf of themselves individually or on behalf of a PARTY. Furlhermors,the individuals executing this AGREEMENT on behalf of the PARTIES each repregent and warrant: (a)they have full authority to execute this AGREEMENT on behalf of the entity for which they so signed; and(b)they are acting within the course and scope of such authority In executing this AGREEMENT. 15. AMITIONAL DOCUMENTS All PARTIES agree to execute any and all additional documents reasonably necessary to complete and document this AGREEMENT and carry out all terms and conditions hereof. 16. SEVRRAABILTfY Tn the event that any one or more provisions ofthts AGREEMENT shall be declared to be illegal,invalid,unenforceable andlor void by a court of competent Jurisdiction,such provision or portion of this AGREEMENT shall be deemed to be severed and deleted from this AGREEMENT,but this AGREEMENT shall in all other respects remain unmodified and continue in fill force and effect. 17. FAX IIGNATURE A signature transmitted by facsimile by any PARTY hereto shall be deemed to be a valid original signature for all purposes under this AGREEMENT. Each of the PARTIESto this AGREEMENT warrants and represents that such PARTY will transmit timely the original signature to such PARTY'S counsel. TN WITNESS 1VHMOP,the PARTIES have signed this AGREEMENT on the dates act forth beloa%opposite the respective signatures. Dote; December62004 P,;A=F Ckuw, City of San Tuan Capistrano Dehndant,Cross-Complainant and Cross-Defendant Date: December_ 2004 State of California,Department of Trgnsspportation(Caltrons) .. . . . ., ....i5e>°end`an"'(;Cross=Comp"tefrir{fif§r1d-' Cross-Defendant i (Signatures Continued) i I7.H65Y.1/6 fl717-1r 6 i Date: December 2004 Casitas Capistrano Association,No.Two, Inc. Defendant,Cross-Complainant and Cross-Defendant APPROVED AS TO FOFUNI AND CONTENT: Jam 20'5 Date: Edwin 3.Richards, Kutsk Rock LLP Counsel for the City of San Juan Capistrano Data: December 2004 Richard D.Heinrich Counsel for State of California Department o(Transportation(Caltrans) Date: December 2004 Martin L Lee Feldsolt&Lee Counsel for Casitas Capistrano Association, No,Two,Inc. naassn 7 14. AVMORJTy OF SIGNATORIES The signatories hereto have each represented and nw behalf of th may have s ifnulldiv oweryan on authority to enter into and execute this AGREEMENT behalf of a PARTY. Furthermore'* ins ha a full authority ls"anuting this �ncute this AGnEMENT PARTMS each represent and warrant: ( ) eY the are acting within the course and scopeofsuch authoof the trity in executing this ty for which theyso signed; and on AGREEMENT. Is. ADDTTY^ O_ NA_ C1) ' NT All PARTIES agree to execute any and all additional documents reasonably necessary to complete and document this AGREEMENT and carry out all terms and conditions hereof. 16. SEVERAEJL In the event that any one or mote provisions of this AGREEMENT shall be declared to be illegal,invalid,unenforceable sand/or void by a cou 01700 hall be deemed to hrt severed and deleted tent rfrom this ch provision or portion of this AGREEMENT AGREEMENT,but this AGR.EEM79NT shall in all other respects remain unmodified and continue in full force and effaot. 17, trexcrCNATURE A signature transmitted by facsimile by any PARTY hereto shall be,deemed to be a valid original signature for all purpose under this AGREEMENT, Each of the PARTIES to this AGREF.Iv1ENT warrants and represents that such PARTY will transmit timely the original signature to such PARTY'S counsel. IN WITNESS WHEREOF,the PARTIES have signed this AGREEMENT on the date set forth below,opposite the respective signatures. pate: December J,2004 City of San Juan Capistrano Defendant,Cress•Complainant and Cross-Defendant Date: December2004 Slate ofCaifoluia Daparhn�nt°f— ,•Transpersation(Cal ra p} ._ ..... . Defendant,Cross-Com lainant and Cross-Defendant [Signatures Continued) i 17 a657 116 6 nnras f Date: December 2004 Caritas Capistrano Association,No.Two, Inc. Defendant,Cross-Complainant and Cross-Defendant APPROVED AS TO FORM AND CONTENT: Date: December 2004 Edwin J.Richards Yutak Rock LLP Co or the City ofSan Juaa pistrano Date Dee mboZ002004 Richani D.P einrich Counsel for State of California Department of Transportation(Caltrans) Date: Docember,,2004 Martin L Lee Feldsott&Lce Counsel for Casitas Capistrano Association. No.Two,Tne, i t.uauan 7- � 117174 9 it 1217".'2004 12145 15497290018 FELU6QrT LEE PAGE 00 a paa: November?. L-1: 2004 K- ca o Assoelation,No.Two. Tnc. pefendant Cross-Coroplainw and Cross pefoodW APPROVED AS TO FORM AND CONTENT: D9 c: November 2004 J.Richards Kutak Kock LL of San Joan Cepidmno Counsel for the City Data November,,2004 Richard D.7itiAdch Cwns.1 for Slab of Califomis Depsnmml of Traoaportation(Caltrans) Date: November 2004 L— '�` ya 1 G 4J Feldsott&Lea CouGrA for Casitas Capistrano Association, No.Two,Inc, t II i ' L•-easr 1n 7 i FILED I FEegorryyS.Lew(#186893) ;vaEwa:cxw1rrurauWol"A FELDSOTT&LEE couwrr of OaauaE 2 23161 Mill Creek Drive, Suite 300 '.Enrrnnt.waw0sreK;4a Laguna Hills,CA 92653 DEC 2 2008 3 (949)729-8002 a.nr:i;N:;SC,.t.i;ar.ot tlm 4.v 4 Attorneyyss for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC. 5 6 7 8 SUPERIOR COURT OF ORANGE COUNTY,CALIFORNIA 9 CENTRAL JUSTICE CENTER 10 30'200$ 11 CASITAS CAPISTRANO ASSOCIATION ) Case No. 0 0 1 16 6 6 9 12 NUMBER TWO,INC., Plaintiff, COMPLAINT FOR: 13 VS. 1. Breach of Written Agreement 14 2. Declaratory Relief-, and CALIFORNIA DEPARTMENT OF 3. Specific Performance 15 TRANSPORTATION, CITY OF SAN JUAN CAPISTRAN'O; and DOES 1 16 THROUGH 50, 17 Defendants. JAGE JOSEPHINE S. TUCKER A8 DEPT. W12 19 10 PI Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC.,a California 22 corporation(hereinafter the"ASSOCIATION")alleges as follows: 23 24 GENERAL ALLEGATIONS . 25 1. The ASSOCIATION was and now is a California corporation duly organized and 26 existing underandbyArtueofthelaws oftheStateofCaliforniawiththe principal place ofbusiness 27 in the County of Orange, State of California and was and is an owners association in a common 28 interest development as defined by California Civil Code §1351 with standing to defend and 1 i COMPLAINT I prosecute actions seeking the recovery ofdamagessought and/or injunctive relief in connection with 2 damage to the common areas, damage to the separate interests which the ASSOCIATION is 3 obligated to maintain or repair,and/or damages to the separate interests which arises out of,or is 4 integrally related to,damage to the common areas or separate interests that the ASSOCIATION is 5 obligated to maintain or repair as set forth in CaliforniaiCivil Code § 1363.8,and the Declaration 6 of Covenants,Conditions&Restrictions recorded on September 24,1965 on page 424 of book 7678 7 of the official records of the County of Orange encumbering the following real property.Tract 5946 8 as per map recorded in Book 218,pages 47-50 inclusive of Miscellaneous Maps,County ofOrange, 9 California_. 10 2. Plaintiff is informed and believes, and based thereon alleges, that defendant 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION(hereinafter"CALTRANT)is,and at 12 all times herein was a public agency duly organized and existing under the laws of the State of 13 California. 14 3. Plaintiff is informed and believes,and based thereon alleges,that defendant CITY 15 OF SAN JUAN CAPISTRANO(hereinafter"CITY')is,and at all times herein was,a municipality 16 duly organized and existing under the laws of the State of California, 17 4. The names and capacities,whether individual,corporate,associate or otherwise of 18 those sued herein as DOES I through 50,inclusive,arepresently unknown,and plaintiff will amend 19 this complaint to insert the same when ascertained.Plaintiff Is informed and believes and based 20 thereon alleges that each of these defendants were and are responsible in some way for the 21 happenings and damages alleged in this complaint. 22 5. Plaintiff is further informed and believes and based thereon alleges that atali times 23 herein mentioned defendants and each of them were the agents,servants,or employees,of their co- 24 .defendants and were as such acting within the courseand scope of their agency and authority ofsuch 25 agency and/or employment. 26 6. Irmnediately adjacent to the ASSOCIATION is an area of real property that plaintiff 27 is informed and believes, and based thereon alleges,that the CITY owns and owned at past times 28 pertinent. Said real property is located at the southbound side of Interstate 5 Freeway in the City of 2 COMPLAINT I San Juan Capistrano,and includes and contains adminage system W various components thereof 2 including channels,drains,and pipes and conduits. 3 7. Plaintiff is informed and believes, and based thereon alleges, that immcdiately 4 adjacent to the real property of CITY as described in paragraph 6 is real property that is owned, 5 1 managed and/or maintained by CALTRANS, which consists of a slope descending from and 6 appurtenant to the edge of interstate 5's southbound lanes to the property of CITY. 7 8. Plaintiffis informed and believes,and based thereon alleges,that the CITY granted 8 CALTRANS a right of way within the real property of CITY that is located between the common 9 area of the ASSOCIATION and the property of CALTRANS on the southbound side of Interstate 10 5 in San Juan Capistrano. 11 9. Plaintiff is informed and believes,and based thereon alleges,that the CITY and/or 12 CALTRANS have the rights to use,manage and maintain a drainage system designed to divert the 13 runoffwater from the slope adjacent to Interstate 5 andchannel it into the CITY drainage system and 14 components thereofwhiehare maintained upon the property ofCITY. This drainage system consists 15 of various ditebes,drains,pipes and conduits designed to direct the flow of runoff water into the W CITY drainage system. 17 10. Plaintiff is Informed and believes and thereon alleges that CITY was and is obligated 18 and required to inspect,maintain,and effect necessary repairs to said drainage system. Plaintiff is 19 additionally informed and believes,and based thereon alleges that CALTRANS wasand isobligated 20 and required to inspect,maintain and effect necessary repairs to said drainage system as well as the 21 subject CALTRANS slope. 22 11. Plaintiff Is informed and believes,and based thereon alleges,that commencing in or 23 about 1996 and continuing for a period of approximately two years, CALTRANS constructed 24 various improvements including but not limited to a sound wall and altered the grade and 25 composition of the slope adjacent to the southbound roadway of Interstate 5. Plaintiff is Informed 26 and believes,and based thereon alleges,that said slope area was exfoliated and altered as part of the 27 expansion of Interstate 5's southbound roadway and construction of the sound well and 28 improvements thereon. 3 COMPLAINT II 1 12. Plaintiff was and is informed and believed and based thereon alleged that the CITY 2 and CALTRANS improved,constructed,modified and/ormaintahredtheforegoingreaipropertyand 3 drainage fixtures and components thereon without the exercise of reasonable care,and in such a 4 manner as to cause the subject real property and drainage fixtures and components thereon to fail 5 causing damages to ASSOCIATION common areas and fixtures thereon as more hilly set forth 6 hereinbelow. 7 13. With specificity,onoraboutFebruary23,1998,water,mud and debrisflromlheslope 8, adjacent to Interstate 5 flowed across the drainage devices maintained by CITY,across the common 9 area maintained and managed by the ASSOCIATION, and in so doing severely damaged said 10 common area and the structures and improvements thereon. 11 14. Plaintiff is furtherinformed andbellevesand thereon alleges that inor about February 12 1998,the slopeadjacenttolnterstste5fliiledcausing additional damage toASSOCIATIONcommcn 13 areas, 14 15. As a further result of the foregoing failure of the CITY and CALTRANS to exercise 15 reasonable care in the improvement,construction,modification and/or maintenance ofthe foregoing 16 real property and drainage fixtures and components thereon, on January 11, 2001, the 17 ASSOCIATION common area,and improvements and fixtures thereon were damaged by way of 18 excess water and debris traveling across the slope maintained by CALTRANS,which overwhelmed 19 the drainage system operated and maintained by the CITY,and subsequently flowed over,through 20 and/or against the ASSOCIATION's common areas and fixtures and improvements thereon 21 resulting in great damage and detriment to such components. 22 16. As a result of the foregoing failures of CITY and/or CALTRANS owned and 23, maintained real property and/or improvements thereon,and the resulting flooding of and demage to 24 ASSOCIATION common areas and member separate interests,the ASSOCIATION,the CITY,and 25 CALTRANS were named as defendants in a lawsuit filed by ASSOCIATION member Irene 26 Burnham in the Orange County Superior Court, Central Justice'Center, on May 30, 2001 27 (subsequently designated as Case No,O1CC06926),whereinMo.Burnham sought monetary damages 28 and injunctive relief against the named defendants. 4 COMPLAINT 1 17. On or about August 29,2001, the ASSOCIATION filed its cross-complaint in the 2 foregoing action,naming as cross-defendants,the CITY and CALTRANS,amongst others. 3 18. On January 10,2002,Association members Gerald B.Wright,Edwardo Lara,and 4 Delorez M. Hernandez filed nearly identical complaints to the complaint previously filed by 5 ASSOCIATION member Irene Burnham in the Orange County Superior Court naming the 6 ASSOCIATION, THE CITY, and CALTRANS as defendants therein, which matters were 7 subsequently designated as Orange County Superior Court CaseNos.02CC01335,020001333and 8 02CCOI336 respectively,and subsequently consolidated with Orange County Superior Court Case 9 No.0ICC06926 by the court herein. 10 19. The entirety of the foregoing consolidated matters were resolved by way of the I1 execution ofvatious written settlementagreements entered intoby and between the respective parties 12 to the consolidated actions. 13 EMT CAUSE ACTION 14 (BREACH OF WRITTEN AGREEMENT AGAINST ALL DEFENDANTS) 15 20. Plaintiff repeats and realleges Paragraphs 1 through 19,inclusive,and incorporates 16 the same as if set forth herein at length. 17 21. On or aboutDecember29,2004,and aspartoftheforegoingsettlement oftheabove• 18 referenced consolidated matters,the CITY,the ASSOCIATION,and CALTRANS completed the 19 execution of and thereby entered into awritten settlement agreement(hereinafter"SETTLEMENT j 20 AGREEMENT")providing forthecompletion ofcertainrepairsandimprovements bytheCITYand 21 1 CALTRANS to the above-referenced real property and/or drainage fixtures and improvements 22 thereon by the CITY and CALTRANS. A true and correct copy of which SETTLEMENT 23 AGREEMENT is attached hereto as exhibit"A"and Incorporated herein by reference. 24 22. Pursuant to the terms and conditions of the foregoing SETTLEMENT j 25 AGREEMENT,the CITY was'obligated to utilize certain prd-desigd9tddfunds from lt§2004-2005, 26 and 2005-2006 fiscal year budgets,in the amount of$636,500.00,to redesign and reconstruct the ` 27 above-referenced CITY drainage fixtures and improvements located immediately adjacent to the II 28 ASSOCIATION common areas. t 5 COMPLAINT 1 23, Pursuant to the terms and conditions of the foregoing SETTLEMENT 2 AGREEMENT,CALTRANS was obligated to pay for the costs of designing and constructing a 3 connection between certain previously referenced CALTRANS drainage components and fixtures 4 and the above referenced CITY drainage fixtures and improvements located immediately adjacent 5. to the ASSOCIATION common areas. 6 24. With specificity,the SETTLEMENT AGREEMENT provides in pertinent part as 7 follows with respect to the obligations imposed on the CITY and CALTRANS thereby: 8 "A. The CITY has designated money in the general fund to be used to 9 Increase the capacity of its storm drain facility located in the vicinity of the Casitas 10 Capistrano Association No.Two,Inc.development. For fiscal year 2004-2005,the 1I CITY has allocated$125,000 for design specifications;for fiscal year 2005-2006,the 12 CITY has allocated$511,500 for construction. At the time of this AGREEMENT, 13 complete details for the design specifications and construction are not available. 14 "B. The CITY agrees that the designated funding will be used to install 15 additional underground drainage pipes to increase the southerly flow capacity along 16 1 Calle Resplendor. The intended result is that the increased drainage capacity will 17 better accommodate the flow coming into the CITY'S system from the adjacent 18 CALTRANS system. The increased capacity is also intended to alleviate the slow 19 drainage conditions that have been experienced by the residents living in the 20 CASTPAS development in the vicinity of the CITY and CALTRANS' drainage 21 facilities. 22 "C. The CITY,CALTRANS and CASITAS acknowledge and agree that 23 1 the entire drainage upgrade project will benefit from being studied, designed and i I 24 carried out by the same engineer. The CITY will therefore have its agents and I 23 eriglneere take tlfd lead role ih'studying, designing and constructing the entire ' +� 25 drainage upgrade project. CALTRANS and CASUAS expressly acknowledge and 27 agree that it will be necessary to grant the CITY and the CITY'S agents access to 29 their respective properties in order to complete this project. Such access may requite 6 COMPLAINT i I the gmntingofeasement(s)and/orencroacbmentpermit(s)necessary toundertakethe 2 study, design and/or construction of the drainage upgrade. CALTRANS and 3 CASITAS therefore agree to cooperate with the CITY in this regard. 4 "D. CALTRANS agrees to pay for the cost of the design and construction 3 of a connection of the CALTRANS outlet to the CITY inlet located adjacent to 6 CASITAS' property. In approximately October of 2004, the CITY obtained 7 estimates from AKM Engineering in the amount of$X4,970 to design costs for this 8 junctionstmeture. CALTRANS agrees topay for the costs ofdesign for thejunction 9 structure portion of the project,in im amount not to exceed$14,970. In September 10 of 2001,the CITY obtained an estimate from AKM Engineering in the amount of 11 $45,000 plus 20% contingencies, plus 201/4 engineering and construction V administration fora total estimated costof$63,000t000mpletethejunctionstructure 13 joining the two drainage pipes. CALTRANS and the CITY acknowledge and agree 14 that the actual cost for this portion of the project will likely vary from the estimate 15 because of the passage of time and may vary from the estimated amount based on 16 unforeseen contingencies. CALTRANS agrees to cooperate and maintain design 17 oversight with the CITY by providing permits or easements as necessary for the Is CITY and those working on behalf of the CITY as required for completion of this 19 portion of the drainage upgrade project. The CITY,CALTRANS and CASITAS 29 agree that any delay on the part of CALTRANS in funding this portion of the 21 drainage upgrade will not delay or hinder in any respect,the remaining portions of 22 the upgrade project." 23 25. As of the filing of the within complaint,the CITY and CALTRANS have defaulted 24 under the terms of the SETTLEMENT AGREEMENT,in that defendants have failed and refbsed, 25 and aontinbe to fail arld refuse, to ni ike•any of fb,6'r6gb101d Md 9gr6ed'iipdn repairs*RVOT' X modifications expressly set forth within the SETTLEMENTAGREEMENT, toplaintiff'sdetriment. 27 26. Plaintiff has performed all of the required terms,conditions and obligations imposed 28 on it by the SETTLEMENT AGREEMENT with the exception of any such terms,conditions,or 7 COMPLAINT I obligations excused by the non-performance of the defendants,and has not consented to airy breach 2 of the terms and provisions of the SETTLEMENT AOREEMENT by defendants. 3 27, Plaintiff has demanded and continues to demand compliance with their obligations 4 under the SETTLEMENT AGREEMENT from the defendants to no avail, and as a result of the 5 failures of the defendants to comply with their legal obligations expressly set forth in the 6 SETTLEMENT AGREEMENTon informationand belief,plaintiffhas been damaged in au amount 7 in excess of$25,000.00,according to proof at time of trial, 8 SECOND CAUSE OF ACTION 9 (DECLARATORY RELIEF AGAINST ALL DEFENDANTS) 10 28. Plaintiff repeats and reaileges Paragraphs 1 through 27, inclusive,and incorporates 11 the same as if set forth herein at length. 12 29. Plaintiff desires a determination of its rights and duties, and a declaration that 13 defendants herein have failed to comply with the obligations imposed upon them by the 14 SETTLEMENT AGREEMENT and are accordingly liable. 15 30, A controversy has now arisen between plaintiff and defendants herein in thatplaintiff 16 alleges that defendants were and are obligated to perform the design and construction of certain 17 improvements pursuant to the SETTLEMENT AGREEMENT,and that defendants have failed to 18 do so as required by way of the SETTLEMENT AGREEMENT,and are,therefore,in breach ofthe 19 SETTLEMENT AGREEMENT. Defendants dispute such contentions,and itwould accordingly be 20 fair,just and equitable for this Court to determine said rights between all parties. 21 THIRD CALM OF ACTION 22 (SPECIFIC PERFORMANCE AGAINST ALL DEFENDANTS) 23 31. Plaintiff repeats and realleges Paragraphs I through 30,inclusive,and incorporates 24 the same as if set forth herein at length. j 25 32. As more fully"set forth' hereinabove;'oh ot''aliobf D€'emblf"24, 2004;' e` 26 ASSOCIATION, CALTRANS, and the CITY entered into the SETTLEMENT AGREEMENT 27 providing for the completion of certain repairs and improvements by the CITY and CALTRANS 28 to the above-referenced real property and/or drainage fixtures and improvements thereon by the 8 COMPLAINT i I CITY and CALTRANS. A true and correct copy of which SETTLEMENT AGREEMENT is 2 attached hereto as exhibit"A"and incorporated herein by reference. 3 33. The consideration set forth in the SETTLEMENT AGREEMENT was and is fair, 4 reasonable,and sufficient to support the execution of the SETTLEMENT AGREEMENT and the 5 obligations imposed thereby,and such SETTLEMENT AGREEMENT was fairly and reasonably 6 entered into and is fair,just, and warranted with respect to the defendants and their required 7 performance thereunder. 8 34. Plaintiff has performed all ofthe required terms,conditions and obligations imposed 9 on it by the SETTLEMENT AGREEMENT with the exception of any such terms,conditions,or 10 obligations excused by the non-performance ofthedefendants,and has notconsented to anybreach 1 I I of the terns and provisions of the SETTLEMENT AGREEMENT by defendants. 12 35. Plaintiff has demanded and continues to demand compliance with their obligations 13 1 under the SETTLEMENT AGREEMENT,from the defendants to no avail. 14 36. - Plaintiffhas no adequate remedy at law in that the terms and conditions of the within 15 SETTLEMENT AGREEMENT compel the defendants herein to specifically perform certain 16 1 obligations relating to the construction,alteration,and/or improvement of a specified and unique 17 1 interest in real property and improvements and fixtures thereoa making an adequate measure of 18 damages impossible to ascertain. Furthermore,plaintiffis informed and believes and based thereon 19 alleges that the defendants' failure to comply with their obligations under the SETTLEMENT 20 AGREEMENT will, in the future, result in multiple additional instances of flooding of affected 21 ASSOCIATION common areas and damages thereto, necessitating a multiplicity of additional 22 lawsuits and thereby making it impossible to currently ascertain an adequate measure of damages 23 for such future contingent liabilities. 24 WHEREFORE,ASSOCIATION prays for judgment against defendants,as follows: 25_ ..AS O' _......, ............... ,... . .......... �'.���iE''FIItST'C1T,USE OF A��O'jq:. . ,., , 26 (1) For monetary damages in an amount in excess of$25,000.00,according to proof at 27 time of trial; j 28 (2) For interest at the maximum legal rate; It I9 COMPLAINT I AS TO THE SECOND CAUSE OF ACTION 2 1. (3) For a declaration ofrights and duties of the defendant.%and each ofthem,with respect 3 to their obligations to design and construct certain specified improvements pursuant to the 4 SETTLEMENT AGREEMENT; 5 (4) For a declaration that the defendants and each of them are in brach of the 6 SETTLEMENT AGREEMENT by way of their failure to comply with the duties and obligations .7 imposed upon them by the SETTLEMENT AGREEMENT; 8 AS TO ME THIRD CAUSE,QFACT] 9 (5) For an order ofthis Court compelling the defendants to comply with theirlegal duties, 10 and specifically perform their required obligations under the SETTLEMENT AGREEMENT 11 forthwith; 12 AS TO ALL CAUSES OF ACTION 13 (6) For costs of suit,according to proof. 14 (7) For such other and further relief as the Court deems just and proper. 15 DATED: December 24,2008 16 FELDSOTT&LEE 17 1s BY GREGORY-S.L W 19 Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO INC. 21 22 23 E3 26 27 1 28 I i 10 iCOMPLAINT I t t t ! °gid r w • 1 Vol I a � 4g�l4e }R�gi !'� �r �y a by by b _: IL � F-' 3� ' wttt �att r9 tllrt e61it CL $ ! rstrry i G� pp,, gg �pN4 �9A fl Z Oo ww t t ; •Y` r N6E" $Y f O nh ii Mpg{ a1r s W r •6t t O Za(�pttrpptr 6! 4 itl ► t (� Y.Y 11 • i6r g d t eiY lot 6� t �' : / t e Ft� • {{1((t Y • !t� tl v1t Y t ! 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'�SarR'I� l `..�, �! 101� NMI �K� oil oil out Bit �ynp..■ I a ■rp.`•, i r a r•�I's� i5� � I�i r,/I amiloom C.G rriGGrii G I :'h rG " � " fill � 11= ill .r r ■ rr IN i a lm pail sumas on* r it �i�9Gi "�li ar���� G� ��� ' h � ► - a:���� � arGaaaaa - � iF.: ����rZ��r��� �a rr • flf�fnupf, ` `9 �� g [Y�r ,� � ( r ■�1. ■ � r�� rrii�rr,t �� r rn�rr"(ir MI . r Kiriioil ' sit ��o w ■. roa � . ' �Q' ■ i�r�irr���;�i.rwr'r�r.=ee , � r� suw niw uwr r 1.11111 rr rrrr rr rr � i pill PLO UMMORMINIM i opw t. • s...,z...s ` I �11a .t.. ...f a-.. 16v .— �' ri .G•r`•+ K �. 1•f f 1 •� f�� 2 Sa t {1 givia qc ...... y O aF p W MVAM 6 MMIRWAY � ill S tqt fit N N 10/6/2009 AGENDA REPORT D13 TO: Joe Tait, Interim City Manage�if FROM: Omar Sandoval, City Attorney SUBJECT: Consideration of Tolling Agreement between the Casitas Capistrano Association Number Two, Inc., California Department of Transportation, and the City of San Juan Capistrano RECOMMENDATION By motion, approve a tolling agreement between the Casitas Capistrano Association Number Two, Inc., California Department of Transportation, and the City of San Juan Capistrano. BACKGROUND The City is involved in litigation with the Casitas Capistrano Association Number Two, Inc. Caltrans is a co-defendant. The litigation arises out of a 2004 settlement agreement wherein the City agreed to improve the storm drain system along Calle Lorenzo and Calle Resplendor. The original litigation arose out of flooding of Association property allegedly caused by the failure of the existing storm drain system. The current litigation seeks completion of the storm drain system improvements. Earlier this year, the City Council approved funding to complete the project design with bidding and construction to follow. It is expected that the design will be completed soon and construction completed by April 2010. To avoid further litigation costs, the parties are proposing to enter into a tolling agreement. A tolling agreement tolls the expiration of the Statute of Limitations applicable to the claims of the parties during the tolling period. The Association has agreed to dismiss the litigation provided that its claims are preserved by the tolling agreement. FINANCIAL CONSIDERATIONS: Approval of the Tolling Agreement will save litigation costs. NOTIFICATION: Notice was provided to the parties to the Tolling Agreement. Agenda Report • • October 6, 2009 Page 2 Recommendation By motion, approve a tolling agreement between the Casitas Capistrano Association Number Two, Inc., California Department of Transportation, and the City of San Juan Capistrano. Respectfully submitted: Omar Sandoval City Attorney ATTACHMENT: 1. Tolling Agreement CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC. vs. CALIFORNIA DEPARTMENT OF TRANSPORTATION Orange County Superior Court,West Justice Center Case No: 30-2008-00116669 TOLLING AGREEMENT (A). PARTIES AND PURPOSE: THIS TOLLING AGREEMENT (hereinafter the "TOLLING AGREEMENT') is hereby entered into by and among Casitas Capistrano Association Number Two, Inc., a California corporation (hereinafter "ASSOCIATION"), the City of San Juan Capistrano, a municipality (hereinafter "CITY"), and the State of California acting by and through its Department of Transportation(hereinafter"CALTRANS"). The foregoing parties to this AGREEMENT,to wit, ASSOCIATION,CITY,and CALTRANS are sometimes hereinafter collectively referred to as the "TOLLING PARTIES." (B). RECITALS: Whereas as a result of the alleged failures of CITY and/or CALTRANS owned and/or maintained real property and/or improvements thereon,and the resulting flooding of and damage to ASSOCIATION Common Areas and Member Separate Interests,the ASSOCIATION, the CITY, and CALTRANS were named as defendants in a lawsuit filed by ASSOCIATION Member Irene Burnham in the Orange County Superior Court, Central Justice Center, on May 30, 2001 (subsequentlydesignated as CaseNo.OI CCO6926),wherein Ms.Burnham sought monetary damages and injunctive relief against the named defendants. Whereas on or about August 29,2001,the ASSOCIATION filed its cross-complaint in the foregoing action, naming as cross-defendants,the CITY and CALTRANS,amongst others. Whereas,on January 10,2002,Association Members Gerald B.Wright,Edwardo Lara,and Delorez M. Hernandez filed nearly identical complaints to the complaint previously filed by ASSOCIATION member Irene Burnham in the Orange County Superior Court naming the ASSOCIATION, THE CITY, and CALTRANS as defendants therein, which matters were subsequently designated as Orange County Superior Court Case Nos.02CCOI 335,02CC01333 and 02CCO1336 respectively,and subsequently consolidated with Orange County Superior Court Case No.01CC06926 by the court herein. Whereas the entirety of the foregoing consolidated matters were resolved by way of the execution ofvarious written settlement agreements entered into by and between the respective parties to the consolidated actions, including without limitation a SETTLEMENT AGREEMENT AND Page 1 of 6 ATTACHMENT 1 RELEASE OF ALL CLAIMS(hereinafter"SETTLEMENT AGREEMENT"entered into in or about December 2004, among ASSOCIATION, CALTRANS and the CITY (a true and correct copy of which SETTLEMENT AGREEMENT is attached hereto as Exhibit"A"and is hereby incorporated by reference herein). Whereas the ASSOCIATION contends that the CITY and CALTRANS breached the SETTLEMENT AGREEMENT by way of alleged failures to complete their obligations provided for within the SETTLEMENT AGREEMENT in a timely manner. Whereas the ASSOCIATION subsequently filed its within complaint(OCSC Case#: 30- 2008-00116669) seeking damages, declaratory relief, and specific performance (hereinafter the "ACTION")against the CITY and CALTRANS on December 29,2008 (a true and correct copy of the complaint [without exhibits] filed in such ACTION is attached hereto as Exhibit "B" and is hereby incorporated by reference herein). Whereas the CITY has represented that on April 7, 2009, the CITY council approved the expenditure of all additional funding necessary to complete the previously agreed upon improvements and modifications to the subject drainage devices and fixtures. Whereas the CITY has additionallyrepresented that the plans reflecting the previously agreed upon improvements and modifications to the drainage devices and fixtures are substantially completed and will be completed in their entirety by in or about December 2009 (true and correct copies of such incomplete plans as they currently exist are attached hereto as Exhibit"C" and are hereby incorporated by reference herein). Whereas the City has additionallyrepresented that the previouslyagreed upon improvements and modifications to the foregoing drainage devices and fixtures will be initiated in or about April 2010, and will be completed by in or about June 2010. Whereas the TOLLING PARTIES desire to avoid any further unnecessary expense or litigation costs herein to the extent that they can be avoided by mutual cooperation of the TOLLING PARTIES. (C). TERMS OF AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises and undertakings, the TOLLING PARTIES hereby agree as follows: 1. Dismissal of the Underlying Action: Pursuant to the terms of this AGREEMENT, within ten (10) days of the complete execution thereof, and in exchange for the tolling of all applicable statutes of limitation and/or repose, and/or time frames applicable to potential defenses of laches or delay or failure to prosecute the within action,as more fully set forth hereinbelow,the ASSOCIATION will file a completed Request for Dismissal(without prejudice)of the ACTION in its entirety. Page 2 of 6 0 0 Z. Duration of TOLLING AGREEMENT: The within TOLLING AGREEMENT shall be effective for a term of one hundred-eighty(180)days from the date of filing of the foregoing Request for Dismissal of the ACTION. 3. Tolling in Effect: During the term of the within TOLLING AGREEMENT, the operation of all periods of limitation,statutes of limitation or repose,and/or the passage of time with respect thereto,or with respect to the assertion of any defenses to the underlying ACTION,relying on or arising from the passage of time or a specified time period, including without limitation, laches,waiver,delay and/or failure to prosecute the within ACTION shall be tolled in their entirety and the period within which this TOLLING AGREEMENT is in effect,shall not constitute expired time,nor may it be counted as contributing toward any such passage of time or specified time period. 4. Expiration: The within TOLLING AGREEMENT shall expire one hundred-eighty (180)days after the date of filing of the Request for Dismissal of the within ACTION as provided for hereinabove,unless and until it is renewed in a writing executed by each and every one of the TOLLING PARTIES, or unless it is terminated by way of the ASSOCIATION's refiling of the within ACTION as provided for in paragraph(C)5 hereinbelow. Upon expiration of the TOLLING AGREEMENT,all time frames, periods,and operation of defenses based thereon,previously tolled by way of this TOLLING AGREEMENT will again begin to run and accumulate as of the date of expiration thereof,excluding therefrom,the one hundred-eighty(180)day period of this TOLLING AGREEMENT, or any lesser period for which the TOLLING AGREEMENT was in operation. 5. Cancellation: To the extent that the ASSOCIATION re-files its within ACTION against the CITY and CALTRANS during the operation of the within TOLLING AGREEMENT, such filing shall terminate the within TOLLING AGREEMENT effective as of the date of filing of such ACTION. 6. Effective Filing Date: To the extent that the within ACTION is dismissed and for any reason re-filed by the ASSOCIATION,during the operation of the TOLLING AGREEMENT, there shall be a relation back to the original filing date ofthe within ACTION ofDecember 29,2008, so that for all intents and purposes,any re-filing of the ACTION shall be deemed to have been filed as of December 29,2008,regardless of the actual filing date of such re-filing. (D). GENERAL PROVISIONS AND REPRESENTATIONS: 1. No Admission of Liability: It is agreed and understood that each of the TOLLING PARTIES deny all allegations of liability which may be asserted against any of them,by any other of the TOLLING PARTIES, and that this TOLLING AGREEMENT does not constitute an admission by any of the TOLLING PARTIES of the truth or validity of matters in controversy,nor shall it be construed as such. 2. Successors andAsshms: This TOLLING AGREEMENT shall be binding upon and inure to the benefit of the TOLLING PARTIES and their respective successors and assigns. Page 3 of 6 3. Entire Agreement: This TOLLING AGREEMENT contains the entire understanding of the TOLLING PARTIES with respect to the subject matter herein. There are no representations, conveniences or understandings other than those expressed or referred to therein. Each party to this TOLLING AGREEMENT acknowledges that no other party or agent or attorney of any other party has made any promise, representation or warranty, expressed or implied or statutory, not contained or referred to herein concerning the subject matter of the TOLLING AGREEMENT,to induce that party to execute this TOLLING AGREEMENT in reliance upon any promise,representation or warranty not specifically contained or referred herein. No amendment or addition to this TOLLING AGREEMENT shall be valid unless such amendment or addition is in writing and signed by all parties hereto. 4. No Prior Assignments: The TOLLING PARTIES,and each of them,warrant and represent that no claim or right to be released under this TOLLING AGREEMENT has been affirmatively transferred,hypothecated,assigned or given away by that party prior to the execution of this TOLLING AGREEMENT to any person or entity that would not be bound hereby,except as expressly provided for by law. Each of the TOLLING PARTIES shall indemnify,defend and hold harmless every other party to this TOLLING AGREEMENT with regard to any and all claims resulting from its own breach of this warranty and representation. 5. )Investigation: Each party to this TOLLING AGREEMENT has made such investigation of the facts pertaining to the TOLLING AGREEMENT that it considers necessary. This TOLLING AGREEMENT is entered into freely and voluntarily by the TOLLING PARTIES hereto with the approval and advice of their respective counsel. 6. Joint Product: This TOLLING AGREEMENT is the product ofbargained for,arms length negotiations between the TOLLING PARTIES and their counsel in good faith and without collusion, and shall not be construed for or against any of the TOLLING PARTIES or their representative(s). 7. Neverability: If any provision of this TOLLING AGREEMENT is held to be invalid or unenforceable,all of the remaining provisions shall nevertheless continue in full force and effect. 8. Counter Parts: This TOLLING AGREEMENT may be executed in one or more counterparts and,when said counter parts are taken together,shall constitute one original TOLLING AGREEMENT, In addition,a photocopy ofthis TOLLING AGREEMENT(including the executed signature pages)shall be the equivalent of the original executed document and may serve in the place and stead of the original for all purposes. 9. California Law:This TOLLING AGREEMENT shall be construed according to the laws of the State of California. 10. Benefit of Counsel:Each of the undersigned further warrants that he or she has read the entire TOLLING AGREEMENT,understands it and in addition,has received independent legal advice from counsel as to the advisability of executing this TOLLING AGREEMENT and with Page 4 of 6 respect to all matters contained herein. 11. Legal Capacity: Each of the undersigned warrants that he or she is of legal age, legally competent to execute this TOLLING AGREEMENT,and has the authority of the party for whom the undersigned is executing this TOLLING AGREEMENT. The TOLLING PARTIES each warrant they have all requisite power and authority to enter into and perform this TOLLING AGREEMENT and to consummate the transaction contemplated hereby, and such TOLLING AGREEMENT and performance thereunder is neither prohibited, nor objected to by any agents, servants, subsidiaries, affiliates, insurers or sureties of any of the TOLLING PARTIES. The execution, delivery, consummation and performance of this TOLLING AGREEMENT have been duly authorized and approved by all necessary persons, entities, and/or actions of the TOLLING PARTIES and this TOLLING AGREEMENT is a valid and binding obligation of the TOLLING PARTIES and is enforceable in accordance with its terms. Each of the TOLLING PARTIES shall indemnify,defend and holdharmless everyotherparty to this TOLLING AGREEMENT withregard to any and all claims resulting from its own breach of this warranty and representation. 12. Attorney's Fees and Costs in the Event of Breach: To the extent that any action or proceeding to enforce,interpret,or compel performance under this TOLLING AGREEMENT is necessary, the prevailing party of parties therein shall be entitled to recover their reasonable attorney's fees and costs incurred in such proceeding or action. PLAINTIFF: Dated: 12009 CASITAS CAPISTRANO ASSOCIATION NUMBER TWO, INC. By: Its: DEFENDANTS: Dated: 2009 CITY OF SAN JUAN CAPISTRANO, a Municipality By: Title: Page 5 of 6 Dated: 12009 STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION By: Title: APPROVED AS TO FORM Dated: 2009 FELDSOTT&LEE By: GREGORY S. LEW Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO, INC. Dated: 12009 WOODRUFF,SPRADLIN&SMART By: CRAIG G.FARRINGTON Attorneys for Defendant CITY OF SAN JUAN CAPISTRANO, a Municipality Dated: 2009 STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION By: CHRISTOPHER WELSH Attorneys for Defendant STATE OF CALIFORNIA ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION Page 6 of 6 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS CAGREEMENT'7,is made this day of December,2004 by,between and among Defendants,Cross-Complainants and Cross-Defendants: the City of San Juan Capistrano("the CITS^'); the State of California Department of Transportation("CALTRANS'); and Casitas Capistrano Association,No.Two,Inc.( CASITAS'). All of the foregoing listed parties to ibis AGREEMENT are hereinafter collectively referred to as the"PARTIES." It is intended by the PARTIES to settle fully and finally any and all differences between them regarding the below- described matters. This AGREEMENT is made with reference to the following facts: 1. RECITALS A. On May 30,2001,Irene Bumham filed a civil complaint against various defendants,including the CITY,CALTRANS and CASITAS in the Orange County'St7perior Court entided Burnhtnn v.Department ofTransporration,er al.,Case No.01 CC 06926,alleging causes of action including inverse condemnation,nuisance and negligence. Three additional civil complaints were filed on behalf of additional plaintiffs,all of which arose from the same alleged facts and involved similar damages. The additional cases consist of Lara v.Dept.of Transportation, et al.,Case No. 02 CC 01333; Wright Y.Depl.of Transportation, et aL,Case No.02 CC 01335; and Hernandez v.Dept.of Transportation, el al.,Case No.02 CC 01336. The four complaints were consolidated for purposes of trial and shall hereafter be collectively referred to as the"COMPLAINTS." B. Plaintiffs'complaints alleged that their condominium-type homes sustained water intrusion and resulting damage arising from deficiencies in the nearby drainage facilities owned and/or maintained by the CITY and CALTRANS. The CITY,CALTRANS,and CASITAS filed cross-complaints against one another seeking various forms of indemnity and contribution. The CITY and CALTRANS cross-complaints asserted that CASITAS failed to properly develop and/or maintain its common areas,which caused,contributed to,or exacerbated the plaintiffs' damages. CASITAS alleged that the nearby CITY and CALTRANS drainage facilities caused damage to its common area property. C. The CITY,CALTRANS and CASITAS have completed settlement agreements with all of the plaintiffs. This AGREEMENT addresses ONLY the cross-actions remaining between the CITY,CALTRANS and CASITAS. By this AGREEMENT,these PARTIES wish to buy their peace and avoid the cost of further litigation and toward that end,make the following agreements and releases: 2. SPECIFIC TERAIS OF AGREEMENTS AND RELEASES A. The CITY has designated money in the general fund to be used to increase the capacity of its storm drain facility located in the vicinity of the Casitas Capistrano Association ""W Two,'Ihd:tle`tlelbpiifenC"fit fis alycao-2004,2005,the CITY has allocated$4 design specifications; for fiscal year 2005.2006,the CITY has allocated$511,500 for .•.,...n,,..tiY1 Al.tl.e N....,,r t6 to Ar;a nPkj hrr rmmnlrtr.detni l<fnr thn&.ipn Sgrmificoions .. ....L ! .U., ..- und construction are not avatlablc. 17.44657.111 11317-15 i B. The CITY agrees that the designated funding will be used to install additional underground drainage pipes to increase the southerly flow capacity along Calle Resplendor, The intended result is that the increased drainage capacity will better accommodate the flow coming into the CITY'S system from the adjacent CALTRANS system. The increased capacity is also intended to alleviate the slow drainage conditions that have been experienced by the residents living in the CASITAS development in the vicinity of the CITY and CALTRANS'drainage facilities. C. The CITY,CALTRANS and CASITAS acknowledge and agree that the entire drainage upgrade project will benefit from being studied,designed and carried out by the same engineer. The CITY will therefore have its agents and engineers take the lead role in studying, designing and constructing the entire drainage upgrade project. CALTRANS and CASITAS expressly acknowledge and agree that it will be necessary to grant the CITY and the CfTY'S agents access to their respective properties in order to complete this project. Such access may require the granting ofeasement(s)and/or encroachment permit(s)necessary to unde'rt'�'�a to the study,design and/or construction of the drainage upgrade. CALTRANS and CASITAS therefore agree to cooperate with the CITY in this regard. D. CALTRANS agrees to pay for the costof the design and construction ora connection of the CALTRANS outlet to the CITY inlet located adjacent to CASITAS'property. In approximately October of 2004,the CITY obtained estimates from AKM Engineering in the amount of$14,470 in design costs for this junction structure. CALTRANS agrees to pay for the costs of design for the junction structure portion of the project,in an amount not to exceed 514,970. In September of 2001,the CITY obtained an estimate from AKM Engineering in the amount of$45,000 plus 20%contingencies,plus 20%engineering and construction administration fora total estimated cost of$63,000 to complete the junction structure joining the two drainage pipes. CALTRANS and the CITY acknowledge and agree that the actual cosrfor this portion of the project will likely vary from Ilia estimate because of the passage of time and may vary from the estimated amount based on unforeseen contingencies. CALTRANS agrees to cooperate and maintain design oversight with the CITY by providing permits oreasements as necessary for the CITY and those working on behalf of the CITY as required for completion of this portion of the drainage upgrade project. The CITY,CALTRANS and CASITAS agree that any delay on the part of CALTRANS in funding this portion of the drainage upgrade will not delay or hinder in any respect,the remaining portions of the upgrade project. E, CASITAS agrees to pay for the cost of the design and constmchoalinstallation of a surface drain in the CASITAS common area located adjacent to the unit located at 30718 Calle Resplendor. At the time of the execution of this AGREEMENT,there is no surface drain lwared in the subject common area. The CITY,CALTRANS and CASITAS acknowledge and agree that the absence of a method to drain surface tvalcr from the subject common area is likely to result in ponding and/or flooding in that area even with the completion of the drainage upgrade as planned,because the subject common area is improperly graded,causing water to pond in that location: In approximately_Qctober of 20„tlj,the CITY obtained estimates from AKNF Engineering in the amount of$3,964 to design the proposed dtam at Sl3,lY3'fb bbrt§lt4Ycl the"' proposed drain. CASITAS agrees to pay for the costs ofdesign and constructionlinstallarion of the*w fbce drain in the CASITAS cemmnn are& in an amounr not to excecd 53,">u4 for the d,Yigr--st and in an_�Lest not M c*rrM$7.5,113 for the eonstructioNinstallation cost. The 1743652.1/2 11717-15 2 CITY,CALTRANS and CASITAS agree that any delay on the pan of CASITAS in funding the design and construction/installation of surface drain in the CASITAS common area will not delay or hinder in any respect,the remaining portions of the upgrade project, The CITY, CALTRANS and CASITAS further agree that the CITY and CALTRANS shall not be liable for any adverse affect caused or contributed to by the ponding of water in the subject common area. F. The CITY agrees to defend and indemnify CASITAS with regard to any damage arising from negligence on the part of the CITY related to the construction of the drainage upgrade during the period of construction of the drainage upgrade. G. In the event that CASITAS sustains damage(s)resulting from overflow or runoff during the construction of the drainage upgrade and unci such time as the construction is complete,the CITY,CALTRANS and CASITAS agree as follows: t. The CITY and CALTRANS agree to equally participate in the crisrM ' repair to CASITAS'property to the extent of two-thirds of the cost of repair. Z. The CITY and CALTRANS agree to defend and indemnify CASITAS arising from liability to any third party. Said duty to defend and indemnify on the part of the CITY and CALTRANS shall extend to two-thirds of the total cost to defend and indemnify. H. In exchange for the wa irrof any potential entitlement to attorneys fees,costs or any other expenses arising from the COMPLAINT,excluding those expenses arising from the drainage upgrade as described in the preceding paragraphs,the CITY,CALTRANS and CASITAS hereby agree to dismiss their respective Cross-Complaints with prejudice and release and forever discharge the CITY,CALTRANS and CASITAS and their respective administrators, employees,agents,representatives,directors,officers,partners,hews,predecessors,successors, assigns,insurers,third-party administrators,subsidiaries and attorneys from any and all claims, demands,actions,or causes of action for injuries or damages,which they have had,may now have,or may hereafter have,excepting the agreements to defend and indemnify during the pendency of the project as described in the preceding paragraphs,arising out of alleged acts or omissions that have been or could have been asserted or in any way connected with the facts and circumstances giving rise to the parties'respective Cross-Complaints filed as part of this litigation. 3. ATTORNEYS FEES AND COSTS All PARTIES to this AGREEMENT each agree to waive any entitlement to attorneys' fees and costs incurred with respect to the litigation arising from the COMPLAINTS and all PARTIES shall bear their own attorneys' fees and costs. 17406Y&11) usr7-rs 3 4. NO ADMISSION OF LIABILITY Liabili(y and damages are disputed and this AGREEMENT shall not be construed as an admission thereof by any PARTY. S. WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 All PARTIES hereby acknowledge that this AGREEMENT shall apply to any and all claims or causes of action,whether known or unknown,suspected or unsuspected,and whether or not other facts might later come to light that would have affected the decision to enter into this AGREEMENT. Accordingly,all PARTIES hereby agree to waive any and all rights that they may have under California Civil Code§1542 and any and all similar provisions from other jurisdictions insofar as the same may apply to the matters in this AGREEMENT. Califomia Civil Code§1542 provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,WATCH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HTS SETTLEMENT WITH THE DEBTOR." The undersigned PARTIES understand that they may have sustained damages which have not yet manifested themselves and which are presently unknown,but nevertheless,the undersigned PARTIES deliberately intend to and hereby do release any and all potential further or future claims or causes of action in any way connected with the facts and circumstances giving rise to the COMPLAINTS or the PARTIES'respective Cross-Complaints filed as part of this litigation. All PARTIES warrant and represent that the effect and import of the provisions of Section 1542 have been fully explained to them by their respective attorneys and they expressly acknowledge understanding of the some. 6. DISMISSALS The CITY,CALTRANS and CASITAS shall execute dismissals,with prejudice,of their respective Cross-Complaints. 7. REPRESENTATIONS AND/OR WARRANTIES Each of the PARTIES to this AGREEMENT,including their respective attorneys, of scers,directors,agents,servants,or employees,or any of them,have not nude any promise, representation,or warranty whatsoever,express or implied,to induce the others to execute this AGREEMENT,and thus,the PARTIES acknowledge that they have not executed this AGREEMENT in reliance upon any such promise,representation,or warranty. ,_,_Thc P.4RTLES hereto understand and acknowledge that they may discover facts different from,or in addition to,those wliicli'tMy'abw W"orbelieve-to-be true with.respecuo the subject matters encompassed by this AGREEMENT,and agree that this AGREEMENT shall be mrd lenrair,ct1'cctive in c!! w•rects not?vithctandinvanysubsequent discovery of different and/or additional fads. In furtherance of this intention,this AGREEMENT is fntcridcd to be,and is, 17.4a652AM 13 f7AS 4 linat and binding regardless of any claim of misrepresentation,promise made without the intention to perform,concealment of fact,mistake of few or fact,or any other circumstance whatsoever. 8. USE OF AGREEMENT This AGREEMENT is entered into without prejudice,shall not constitute precedent and is not intended to be,nor shall it be construed as,an interpretation of any contract or transaction and shall not be used as evidence,or in any other manner,in any court or dispute resolution proceeding regarding any other claims between the parties. 9. COMPLETE AGREENIENT This AGREEMENT constitutes the entire understanding and AGREEMENT among the PARTIES concerning the subject matters hereof,and supersedes and replaces all prier. - negotiations,proposed releases and agreements,written and oral. Because of the nature of the ongoing construction of the drainage upgrade project that is the subject of this AGREEMENT, should the PARTIES determine that an additional or subsequent agreement is necessary to address unforeseen contingencies not provided for in this AGREEMENT,the PARTIES agree that any such further matters shall not be effectiim unless reduced to writing. 10. INDEPENDENT COUNSEL Each PARTY hereto represents and warrants to each other PARTY hereto that it has received independent legal advice from attorneys of their own choosing with respect to the legal effect of this AGREEMENT,and further represents and warrants that it has carefully reviewed this entire AGREEMENT and that each and every term hereof is understood and that the terms of this AGREEMENT are contractual and not a mere recital. 11. GOVERNINGLAW This AGREEMENT shall in all respects be interpreted,enforced and governed under the laws of the State of California. 12. INTERPRETATION The PARTIES have jointly drafted this AGREEMENT. Hence,the PARTIES agree that the terms of this AGREEMENT,or any of them,shall not be interpreted against or in favor of any PARTY on the ground that any PARTY participated in the drafting of this AGREEMENT. The PARTIES further agree that any uncertainty and ambiguity shall not be interpreted against any PARTY. 13, COUNTERPARTS This AGREEMENT may 6e'eZecufeadin-Sdc&r6W*cbuhterjmrts;each ofwhiehshafl be -- deemed an original. 74402.115 1317.[5 5 14. AUTHORITY OF SIGNATORIES The signatories hereto have each represented and warrant that they have full power and authority to enter into and execute this AGREEMENT on behalf of themselves individually or on behalf ofa PARTY. Furthermore,the individuals executing this AGREEMENT on behalf of the PARTIES each represent and warrant: (a)they have IUII authority to execute this AGREEMENT on behalf of the entity for which they so signed; and(b)they are acting within the course and scope of such authority in executing this AGREEMENT. 15. ADDITIONAL DOCUMENTS All PARTIES agree to execute any and all additional documents reasonably necessary to complete and document this AGREEMENT and carry out all terms and conditions hereof. 16. SEVERABILITY --� In the event that any one or more provisions of this AGREEMENT shall be declared to be illegal,invalid,unenforceable and/or void by a court of competent jurisdiction,such provision or portion of this AGREEMENT shall be deemed to be severed and deleted from this AGREEMENT,but this AGREEMENT shall in all other respects remain unmodified and continue in full force and effect, 17. FAX SIGNATURE A signature transmitted by facsimile by any PARTY hereto shall be deemed to be a valid original signature for all purposes under this AGREEMENT. Each of the PARTIES to this AGREEMENT warrants and represents that such PARTY will transmit timely the original signature to such PARTY'S counsel. IN WITNESS WHEREOF,the PARTIES have signed this AGREEMENT on the dates set forth below, opposite the respective signatures. nn,, Date: DecemberE7_9 ��.� l_,2004 ©dl� City of San Juan Capistrano Defendant,Cross-Complainant and Cross-Defendant Date: December 2004 State of California,Department of De enfant;Cross�Complainafit OrTd_ j Cross-Defendant i f Signatures Continued] 17.44652AM 6 11311-15 i Date: December_,2004 Cssitas Capistrano Association,No.Two, Inc. Defendant,Cross-Complainant and Cross-Defendant APPROVED AS TO FORM AND CONTENT: Date: 9ccerabe -2604 Edwin J.Riche s Kutak Rock LLP Counsel for the City of San Juan Capistrano Date: December_ 2004 Richard D.Heinrich Counsel for State of Califomia Department of Transportation(Caltrans) Date: December_,2004 Martin L.Lee Ftldsott&Lee Counsel for Casitas Capistrano Association, No,Two,Inc. i n444svn 11317-13 MP 14. AUTHORITY OF SIGNATORIES The signatories hereto have each represented and warrant that they have full power and authority to enter into and execute this AGREEMENT on behalf of themselves individually or on behalf of a PARTY. Furthermore,the individuals executing this AGREEMENT on behalf of the PARTIES each represent and warrant (a)they have full authority to execute this AGREEMENT on behalf of the entity for which they so signed; and(b)they are acting within the course and scope of such authority in executing this AGREEMENT. 15. ADDITIONAL DOCUitifENTS All PARTIES agree to execute any and all additional documents reasonably necessary to complete and document this AGREEMENT and carry out all terms and conditions hereof. 16. SEVERABILITY In the event that any one or more provisions of this AGREEKENT shall be declared to be illegal,invalid,unenforceable and/or void by a court of competent jurisdiction,such provision or portion of this AGREEMENT shall be deemed to be severed and deleted horn this AGREEMENT,but this AGREEMENT shall in all other respects remain unmodified and continue in full force and effect. 17. FAXSICNgTURE A signature transmitted by facsimile by any PARTY hereto shall be deemed to be a valid original signature for all purposes under this AGREEMENT. Each of the PARTIES to this AGREEMENT warrants and represents that such PARTY will transmit timely the original signature to such PARTY'S counsel. IN WITNESS WHEREOF,the PARTIES have signed this AGREEMENT on the dates set forth below, opposite the respective signatures. Date. December_,2004 City of San Juan Capistrano Defendant,Cross-Complainantand Cross-Defendant Date: DecemberZ 2004 _ &ZaZ Sfate-6f California,Department of .' ", 7'raa ertatitan. Galtw Defendant,Cross-Complainant and + Cross-Defendant [Signatures Continuedl r:-sa55tta: junr-ts 6 i Date: December,,2004 Casitss Cspistrano Association,No.Two, Inc. Defendant,Cross-Complainant and Cross-Defendant APPROVED AS TO FORNI AND CONTENT: Date: December_,2004 Edwin I Richards Kutak Rock LLP Course or the City of San Juan pistrano` Date: Decembel,6004 rJ e Richard D. einrich Counsel for State or California Department of Transportation(Caltrans) Date: December_,2004 Martin L.Lee Feldsott&Lee Counsel for Casitas Capistrano Association, No.Two,Inc. n-+wsz.�n 7 j tuttas i 12i"i-.'2F06 12145 75497298818 FE'LDSUTT LEE PAGE 98 Aare: Novemberf°.2004 Casitu Capis o Association,No. Two, inc. Defendant,Cross-Complaisant and Cross-Defendant APPROVED AS TO FORM AND CONTENT: Date: November.2004 Edwin) Richards Kutak Rock LLP Counsel for the City of San Juan Capistrano Date: November 2004 RiohardD.kioladch Counsel for State of California DepaAment of Transportation(Caltrans) Date: November 2004 Martin L.Lee P7 `7 — Feldsott&Lee Counsel for Casitas Capistrano Association, No.Two,Inc. I I I 4+se55r l� 7 I Gregory S.Lew(#186893) A PERIOR OURTOF c�u.IFORhnr. FELDSOTT&LEE CM1NTY OF GRM(3E 2 23161 Mill Creek Drive,Suite 300 .ENMAL eusnrF CE",Ea Laguna Hills,CA 92653 DEC 2 9 2008 3 (949)729-8002 4 Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO,INC. 5 6 7 8 SUPERIOR COURT OF ORANGE COUNTY,CALIFORNIA 9 CENTRAL JUSTICE CENTER l0 30^200$ 11 CASITAS CAPISTRANO ASSOCIATION ) Case No. 0 0 1 16669 NUMBER TWO,INC., )) 12 Plaintiff, COMPLAINT FOR: 13 VS. 1. Breach of Written Agreement 14 2. Declaratory Relief;and CALIFORNIA DEPARTMENT OF 3. Specific Performance 15 TRANSPORTATION; CITY OF SAN JUAN CAPISTRANO; and DOES I 16 THROUGH 50, 17 Defendants. I DOE JOSEPHINE S. TUCKER 18 DEPT. W12 19 20 21 Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER TWO, INC.,a California 22 corporation(hereinafter the"ASSOCIATION)alleges as follows: I3 24 GENERAL ALLEGATIONS 25 1. The ASSOCIATION was and now is a California corporation duly organized and 26 existing under and by virtue of the laws of the State of California with the principal place ofbusiness 27 in the County of Orange, State of California and was and is an owners association in a common 28 interest development as defined by California Civil Code §1351 with standing to defend and 1 COMPLAINT I prosecute actions seeking the recovery ofdamages sought and/or injunctive relief in connection with 2 damage to the common areas, damage to the separate interests which the ASSOCIATION is 3 obligated to maintain or repair,and/or damages to the separate interests which arises out of,or is 4 integrally related to,damage to the common areas or separate interests that the ASSOCIATION is 5 obligated to maintain or repair as set forth in California Civil Code § 1363.8,and the Declaration 6 of Covenants,Conditions&Restrictions recorded on September 24,1965 on page 424 ofbook 7678 7 of the official records of the County of Orange encumbering the following real property:Tract 5946 8 as per map recorded in Book 218,pages 47-50 inclusive of Miscellaneous Maps,County of Orange, 9 California-. 10 2. Plaintiff is informed and believes, and based thereon alleges, that defendant 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION(hereinafter"CALTRANS'l is,and at 12 all times herein was a public agency duly organized and existing under the laws of the State of 13 California. 14 3. Plaintiff is informed and believes,and based thereon alleges, that defendant CITY 15 OF SAN JIJAN CAPISTRANO(hereinafter"CITY")is,and at all times herein was,a municipality 16 duly organized and existing under the laws of the State of California. 17 4. The names and capacities,whether individual,corporate,associate or otherwise of 18 those sued herein as DOES I through 50,inclusive,arepresently unknown,and plaintiff will amend 19 this complaint to insert the same when ascertained. Plaintiff is informed and believes and based 20 thereon alleges that each of these defendants were and are responsible in some way for the 21 happenings and damages alleged in this complaint. 22 S. Plaintiff is further informed and believes and based thereon alleges that at all times 23 herein mentioned defendants and each of them were the agents,servants,or employees,of their co- 24 defendants and were as such acting within the courseand scope of their agency and authority of such 25 agency and/or employment. 26 6. Immediately adjacent to the ASSOCIATION is an area of real property that plaintiff 27 is informed and believes, and based thereon alleges,that the CITY owns and owned at past times 28 pertinent. Said real property is located at the southbound side of Interstate 5 Freeway in the City of 2 COMPLAINT I San Juan Capistrano,and includes and contains a drainage system and various components thereof 2 including channels,drains,and pipes and conduits. 3 7. Plaintiff is informed and believes, and based thereon alleges, that immediately 4 adjacent to the real property of CITY as described in paragraph 6 is real property that is owned, 5 managed and/or maintained by CALTRANS, which consists of a slope descending from and 6 appurtenant to the edge of Interstate 5's southbound lanes to the property of CITY. 7 8. Plaintiff is informed and believes,and based thereon alleges,that the CITY granted 8 CALTRANS a right of way within the real property of CITY that is located between the common 9 area of the ASSOCIATION and the property of CALTRANS on the southbound side of Interstate 10 5 in San Juan Capistrano. 11 9. Plaintiff is informed and believes,and based thereon alleges,that the CITY and/or 12 CALTRANS have the rights to use,manage and maintain a drainage system designed to divert the 13 runoff water from the slope adjacent to Interstate 5 andchannel it into the CITY drainage system and 14 components thereofwhich are maintained upon the property of CITY. This drainage system consists 15 of various ditches,drains,pipes and conduits designed to direct the flow of runoff water into the 16 CITY drainage system. 17 10. Plaintiff is informed and believes and thereon alleges that CITY was and is obligated 18 and required to inspect,maintain,and effect necessary repairs to said drainage system. Plaintiff is 19 additionally informedand believes,and based thereon alleges that CALTRANS wasand isobligated 20 and required to inspect,maintain and effect necessary repairs to said drainage system as well as the 21 subject CALTRANS slope. 22 11. Plaintiff is informed and believes,and based thereon alleges,that commencing in or 23 about 1996 and continuing for a period of approximately two years, CALTRANS constructed 24 various improvements including but not limited to a sound wall and altered the grade and 25 composition of the slope adjacent to the southbound roadway of Interstate 5. Plaintiff is informed 26 and believes,and based thereon alleges,that said slope area was exfoliated and altered as part of the 27 expansion of Interstate 5's southbound roadway and construction of the sound wall and 28 improvements thereon. 3 COMPLAINT 1 12. Plaintiff was and is informed and believed and based thereon alleged that the CITY 2 and CALTRANS improved,constructed,modified and/or maintained the foregoingrealpropertyand 3 drainage fixtures and components thereon without the exercise of reasonable care,and in such a 4 manner as to cause the subject real property and drainage fixtures and components thereon to fail 5 causing damages to ASSOCIATION common areas and fixtures thereon as more fully set forth 6 hereinbelow. 7 13. With specificity,on or about February 23,1998,water,mud and debris from the slope 8 adjacent to Interstate 5 flowed across the drainage devices maintained by CITY,across the common 9 area maintained and managed by the ASSOCIATION, and in so doing severely damaged said 10 common area and the structures and improvements thereon. 11 14. Plaintiffis further informed and believes and thereon alleges that in or aboutFebruary 12 1998,the slope adjacent to Interstate 5 failed causing additional damage to ASSOCIATION common 13 areas. 14 15. Asa further result of the foregoing failure of the CITY and CALTRANS to exercise 15 reasonable care in the improvement,construction,modification and/or maintenance oftheforegoing 16 real property and drainage fixtures and components thereon, on January 11, 2001, the 17 ASSOCIATION common area, and improvements and fixtures thereon were damaged by way of 18 excess water and debris traveling across the slope maintained by CALTRANS,which overwhelmed 19 the drainage system operated and maintained by the CITY,and subsequently flowed over,through 10 and/or against the ASSOCIATION's common areas and fixtures and improvements thereon 21 resulting in great damage and detriment to such components. 12 16. As a result of the foregoing failures of CITY and/or CALTRANS owned and 23, maintained real property and/or improvements thereon,and the resulting flooding ofand damage to 24 ASSOCIATION common areas and member separate interests,the ASSOCIATION,the CITY,and 25 CALTRANS were named as defendants in a lawsuit filed by ASSOCIATION member Irene 26 Burnham in the Orange County Superior Court, Central Justice Center, on May 30, 2001 27 (subsequently designated as CaseNo.01 CC06926),wherein Ms.Burnham sought monetary damages 28 and injunctive relief against the named defendants. I 4 COMPLAINT 1 17. On or about August 29, 2001, the ASSOCIATION filed its cross-complaint in the 2 foregoing action,naming as cross-defendants,the CITY and CALTRANS,amongst others. 3 18. On January 10,2002,Association members Gerald B. Wright,Edwardo Lara,and 4 Delorez M. Hernandez filed nearly identical complaints to the complaint previously filed by 5 ASSOCIATION member Irene Burnham in the Orange County Superior Court naming the 6 ASSOCIATION, THE CITY, and CALTRANS as defendants therein, which matters were 7 subsequently designated as Orange County Superior Court CaseNos.02CCOI335,02CCO2333and 8 02CCOI336 respectively,and subsequently consolidated with Orange County Superior Court Case 9 No. 01CC06926 by the court herein. 10 19. The entirety of the foregoing consolidated matters were resolved by way of the II execution ofvarious written settlementagreements entered into byand between the respective parties 12 to the consolidated actions. 13 FIRST CAUSE OF ACTION 14 (BREACH OF WRITTEN AGREEMENT AGAINST ALL DEFENDANTS) 15 20. Plaintiff repeats and realleges Paragraphs 1 through 19,inclusive,and incorporates 16 the same as if set forth herein at length. 17 21. Onor about December 29,2004,and aspart of the foregoing settlement of the above- 18 referenced consolidated matters,the CITY,the ASSOCIATION,and CALTRANS completed the 19 execution of and thereby entered into awritten settlement agreement(hereinafter"SETTLEMENT 20 AGREEMENT")providing for the completion ofcertainrepairs and improvements bytheCITY and 21 CALTRANS to the above-referenced real property and/or drainage fixtures and improvements 22 thereon by the CITY and CALTRANS. A true and correct copy of which SETTLEMENT 23 AGREEMENT is attached hereto as exhibit"A"and incorporated herein by reference. I 24 22. Pursuant to the terms and conditions of the foregoing SETTLEMENT j 25 AGREEMENT,the CITY was obligated to utilize certainprei-desijdAt6d funds from its 2004-2005, 26 and 2005-2006 fiscal year budgets, in the amount of$636,500.00,to redesign and reconstruct the 27 above-referenced CITY drainage fixtures and improvements located immediately adjacent to the 28 ASSOCIATION common areas. I I j 5 I COMPLAINT 1 23: Pursuant to the terms and conditions of the foregoing SETTLEMENT 2 AGREEMENT,CALTRANS was obligated to pay for the costs of designing and constructing a 3 connection between certain previously referenced CALTRANS drainage components and fixtures 4 and the above-referenced CITY drainage fixtures and improvements located immediately adjacent 5 to the ASSOCIATION common areas. 6 24. With specificity,the SETTLEMENT AGREEMENT provides in pertinent part as 7 follows with respect to the obligations imposed on the CITY and CALTRANS thereby: 8 "A. The CITY has designated money in the general fund to be used to 9 increase the capacity of its storm drain facility located in the vicinity of the Casitas 10 Capistrano Association No.Two,Inc.development. For fiscal year 2004-2005,the II CITY has allocated$125,000 fordesign specifications;for-fiscal year2005-2006,the 12 CITY has allocated$511,500 for construction. At the time of this AGREEMENT, 13 complete details for the design specifications and construction are not available. 14 "B. The CITY agrees that the designated funding will be used to install IS additional underground drainage pipes to increase the southerly flow capacity along 16 Calle Resplendor. The intended result is that the increased drainage capacity will 17 better accommodate the flow coming into the CITY'S system from the adjacent 18 CALTRANS system. The increased capacity is also intended to alleviate the slow 19 drainage conditions that have been experienced by the residents living in the 20 CASITAS development in the vicinity of the CITY and CALTRANS' drainage 21 facilities. I 22 "C. The CITY,CALTRANS and CASITAS acknowledge and agree that 23 the entire drainage upgrade project will benefit from being studied, designed and 24 carried out by the same engineer. The CITY will therefore have its agents and 25 eriginiers take the lead role in'Studying, designing and constructing the entire 26 drainage upgrade project. CALTRANS and CASITAS expressly acknowledge and M agree that it will be necessary to grant the CITY and the CITY'S agents access to 28 their respective properties in order to complete this project. Such access may require 6 j COMPLAINT it I the grantingofeasement(s)and/or encroachment permit(s)necessary to undertake the 2 study, design and/or construction of the drainage upgrade. CALTRANS and 3 CASITAS therefore agree to cooperate with the CITY in this regard. 4 "D. CALTRANS agrees to pay for the cost of the design and construction 5 of a connection of the CALTRANS outlet to the CITY inlet located adjacent to 6 CASITAS' property. In approximately October of 2004, the CITY obtained 7 estimates from AKM Engineering in the amount of$14,970 to design costs for this 8 junction structure. CALTRANS agrees topay for the costs ofdesign for thejunetion 9 structure portion of the project,in an amount not to exceed$14,970. In September 10 of 2001,the CITY obtained an estimate from AKM Engineering in the amount of 11 $45,000 plus 20% contingencies, plus 20% engineering and construction 12 administration for a total estimated costof$63,000 to complete thejunction structure 13 joining the two drainage pipes. CALTRANS and the CITY acknowledge and agree 14 that the actual cost for this portion of the project will likely vary from the estimate 15 because of the passage of time and may vary from the estimated amount based on 16 unforeseen contingencies. CALTRANS agrees to cooperate and maintain design 17 oversight with the CITY by providing permits or easements as necessary for the 18 CITY and those working on behalf of the CITY as required for completion of this 19 portion of the drainage upgrade project. The CITY, CALTRANS and CASITAS 20 agree that any delay on the part of CALTRANS in funding this portion of the 21 drainage upgrade will not delay or hinder in any respect,the remaining portions of 22 the upgrade project." 23 25. As ofthe filing of the within complaint,the CITY and CALTRANS have defaulted 24 under the terms of the SETTLEMENT AGREEMENT,in that defendants have failed and refused, 25 and continue to fail and refuse, to make'an of th6'r' uired W fireed u on repairs 'arid/oT` � y �.. .. g . P . . W modifications expressly set forth within the SETTLEMENT AGREEMENT,to plaintiff's detriment. 27 26. Plaintiffhas performed all ofthe required terms,conditions and obligations imposed i 28 on it by the SETTLEMENT AGREEMENT with the exception of any such terms,conditions,or i 7 j COMPLAINT I obligations excused by the non-performance of the defendants,and has not consented to any breach 2 of the terns and provisions of the SETTLEMENT AGREEMENT by defendants. 3 27. Plaintiff has demanded and continues to demand compliance with their obligations 4 under the SETTLEMENT AGREEMENT from the defendants to no avail, and as a result of the 5 failures of the defendants to comply with their legal obligations expressly set forth in the 6 SETTLEMENT AGREEMENT,on information and belief,plaintiffhasbeendamagedinanamount 7 in excess of$25,000.00,according to proof at time of trial. 8 ,SECOND CAUSE OF ACTION 9 (DECLARATORY RELIEF AGAINST ALL DEFENDANTS) 10 28. Plaintiff repeats and realleges Paragraphs 1 through 27,inclusive,and incorporates I l the same as if set forth herein at length. 12 29. Plaintiff desires a determination of its rights and duties, and a declaration that 13 defendants herein have failed to comply with the obligations imposed upon them by the 14 SETTLEMENT AGREEMENT and are accordingly liable. 15 30. A controversy has now arisen between plaintiff and defendants herein in that plaintiff 16 alleges that defendants were and are obligated to perform the design and construction of certain 17 improvements pursuant to the SETTLEMENT AGREEMENT,and that defendants have failed to j 18 do so as required by way of the SETTLEMENT AGREEMENT,and are,therefore,in breach of the 19 SETTLEMENT AGREEMENT. Defendants dispute such contentions,and it would accordingly be 20 fair,just and equitable for this Court to determine said rights between all parties. 21 THIRD CAUSE OF ACTION 22 (SPECIFIC PERFORMANCE AGAINST ALL DEFENDANTS) 23 31. Plaintiff repeats and realleges Paragraphs I through 30,inclusive,and incorporates 24 the same as if set forth herein at length. I 26 ASSOCIATION, CALTRANS"sit" and the CITY tentered into The SETTLLEMENT AGREEMENT 27 providing for the completion of certain repairs and improvements by the CITY and CALTRANS 28 to the above-referenced real property and/or drainage fixtures and improvements thereon by the 8 COMPLAINT i I CITY and CALTRANS. A true and correct copy of which SETTLEMENT AGREEMENT is 2 attached hereto as exhibit"A"and incorporated herein by reference. 3 33. The consideration set forth in the SETTLEMENT AGREEMENT was and is fair, 4 reasonable,and sufficient to support the execution of the SETTLEMENT AGREEMENT and the 5 obligations imposed thereby,and such SETTLEMENT AGREEMENT was fairly and reasonably 6 entered into and is fair,just, and warranted with respect to the defendants and their required 7 performance thereunder. 8 34. Maintiffhas performed all of the required terms,conditions and obligations imposed 9 on it by the SETTLEMENT AGREEMENT with the exception of any such terms,conditions,or 10 obligations excused by the non-performance of the defendants,and has not consented to any breach I I of the terms and provisions of the SETTLEMENT AGREEMENT by defendants. 12 35. Plaintiff has demanded and continues to demand compliance with their obligations 13 under the SETTLEMENT AGREEMENT,from the defendants to no avail. 14 36. ' Plaintiff has no adequate remedy at law in that the terns and conditions ofthe within 15 SETTLEMENT AGREEMENT compel the defendants herein to specifically perform certain 16 obligations relating to the construction, alteration,and/or improvement of a specified and unique 17 interest in real property and improvements and fixtures thereon making an adequate measure of 18 damages impossible to ascertain. Furthermore,plaintiff is informed and believes and based thereon 19 alleges that the defendants' failure to comply with their obligations under the SETTLEMENT 20 AGREEMENT will, in the future, result in multiple additional instances of flooding of affected 21 ASSOCIATION common areas and damages thereto,necessitating a multiplicity of additional 22 1 lawsuits and thereby making it impossible to currently ascertain an adequate measure of damages 23 for such future contingent liabilities. 24 WHEREFORE,ASSOCIATION prays for judgment against defendants,as follows: j 25—"AS .....THE"FITtS1 CITUSE OF ACTIt3N _.... .,., , .. ...._..,..... ._............ 26 (1) For monetary damages in an amount in excess of$25,000.00, according to proof at i 27 time of trial; 28 (2) For interest at the maximum legal rate; i 9 COMPLAINT I AS TO THE SECOND CAUSE OF ACTION 2 (3) For a declaration ofrights and duties ofthe defendants,and each ofthem,with respect 3 to their obligations to design and construct certain specified improvements pursuant to the 4 SETTLEMENT AGREEMENT; 5 (4) For a declaration that the defendants and each of them are in breach of the 6 SETTLEMENT AGREEMENT by way of their failure to comply with the duties and obligations .7 imposed upon them by the SETTLEMENT AGREEMENT; 8 AS TO THE THIRD CAUSE OF AMON 9 (5) For an orderofthis Court compelling the defendants to comply with their legal duties, 10 and specifically perform their required obligations under the SETTLEMENT AGREEMENT 11 forthwith; 12 AS TO ALL CAUSES OF ACTION 13 (6) For costs of suit,according to proof. 14 (7) For such other and further relief as the Court deems just and proper. 15 DATED: December 24,2008 16 FELDSOTT&LEE 17 1E BY G .LEW 19 Attorneys for Plaintiff CASITAS CAPISTRANO ASSOCIATION NUMBER 2D TWO INC. 21 22 23 24 26 27 28 1 10 COMPLAINT i N SS P S S 6 6 E66E /h ° H ( U.1 I= W p„ e g ° ` aaoif,g�lgca e ESi!e11 iik�YiggII�kfPjP� t$Ip`geI 1¢EI Ei O OSNOIS4aN Zo o 5>Y POEP fill a w Nil i $d3 i3gg i$ig psi:t!sg #' F, u o $I azar ei$i fiiiar zUad a$ Yy W u.i °UJ 3 $ ^ o Z° Q'!€9i61SIDl2llii! 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