1993-0520_MCMILLIAN , OLIVER_Settlement Agreement•
SETTLEMENT AGREEMENT
AND
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This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE OF ALL
CLAIMS (the "Agreement") is made and entered into as of
1993, by and between OLIVER McMILLAN CAPISTRANO I,
Ltd., a California limited partnership ("Oliver McMillan"), the
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public
body corporate and politic (the "Agency") and the CITY OF SAN
JUAN CAPISTRANO, a municipal corporation, (the "City"). Oliver
McMillan, the Agency and the City are hereinafter at times
referred to individually as "Party" or collectively as
"Parties".
RECITALS
This Agreement is made with reference to the following
facts:
A. This Agreement is made as a good faith compromise
between the Parties with a complete and final settlement of any
and all of their disputes, claims, differences, causes of
action and potential causes of action as described below.
i
B. The Parties to this Agreement are in dispute (the
"Dispute") regarding sums allegedly due as a result of that
Disposition and Development Agreement dated November 3, 1987 by
and between the Agency and Oliver McMillan (the "DDA") and the
purported implementation thereof.
C. An actual dispute having arisen and no action being
filed, the Parties have agreed to settle and compromise any and
all disputes, claims, differences, actions or causes of action,
whether actual or potential, without admitting or conceding the
truth of any allegations or assertions made in connection with
the Dispute.
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In consideration of the mutual covenants set forth herein,
the Parties agree as follows:
1. Payment to Oliver McMillan.
Upon execution of this Agreement by all Parties, the
Agency will cause to be paid to Oliver McMillan the sum of One
Hundred Thirty Seven Thousand, Five Hundred Dollars
($137,500).
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2. Prior Agreements Null and void.
Except as otherwise expressly stated herein, this
Agreement shall supersede and render null and void any and all
prior agreements or contracts including, but not limited to,
the DDA, and modifications thereto, whether oral or written,
between the Parties hereto, and shall constitute the only
valid, binding and enforceable agreement among them.
3. Release and Waiver of Civil Code Section 1542.
Except for the obligations and rights conferred by
this Agreement, each of the Parties, on behalf of itself, its
attorneys, officers, directors, agents, partners, servants,
representatives, employees, successors, assigns and any and all
of its affiliated corporations or companies, whether past,
present or future, hereby waives, releases and discharges the
other Parties, as well as each of their attorneys, officers,
agents, partners, servants, representatives, employees,
successors, assigns, and affiliated corporations or companies,
whether past, present, or future, from any and all claims,
demands, costs, contracts, liabilities, objections, rights,
damages, expenses, compensation, actions and causes of action
of every nature, whether in law or in equity, known or unknown
or suspected or unsuspected, which any Party had or has or
makes claim to in the Dispute, including, but not limited to,
any and all claims for compensation for work performed and
moneys expended pursuant to the DDA by any Party and any of
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such Party's agents, employees, or assignees, or claims for
abandonment of any lawsuit, court costs, appraisal or expert
fees and costs, and attorneys fees and costs arising from,
regarding or relating to the Dispute. The Parties also
expressly waive and relinquish any and all rights which they
may have under the provisions of Section 1542 of the California
Civil Code which reads as follows:
"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, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
4. Compromise and Settlement.
This Agreement is a compromise and settlement of a
disputed claim and is not intended as and shall not constitute
or be construed as an admission of the truth or correctness of
any allegation against any Party in the Dispute or of liability
on the part of the Agency, City or Oliver McMillan.
5. Entire Agreement.
This Agreement contains the entire agreement between
the Parties with respect to the matters described herein, and,
as such, supersedes and cancels any prior understandings,
statements, representations, promises and agreements including,
without limitation, the DDA with respect to such matters,
whether oral or written. This Agreement shall not be extended,
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modified, altered or otherwise changed except in a writing
executed by all of the Parties hereto which expressly states
that it is an amendment of this Agreement.
6. Representation of Comorehension of Documents.
In entering into this Agreement, the Parties represent
that they have relied upon the independent legal advice of
their attorneys, and that the terms of this Agreement have been
completely read and explained to them by their respective
attorneys and that those terms are fully understood and
voluntarily accepted by the Parties without duress or coercion,
economic or otherwise.
7. Governina Law.
The laws of the State of California shall govern this
Agreement in all respects, including, but not limited to,
matters of construction, validity, enforcement and
interpretation.
This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors,
representatives, assigns, officers, directors, agents,
partners, servants, employees, and affiliated corporations or
companies.
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9. Non-Assianment.
The Parties represent and warrant that there has been
no assignment or other transfer of any claims, actions, causes
of action, demands, rights, damages, costs, expenses,
compensation, or any other interests which they may have or may
have had, at any time whatsoever against the other Parties, or
their attorneys, officers, agents, partners, servants,
employees, successors, assigns, representatives, or affiliated
corporations or companies to any person, firm, corporation,
partnership, or any entity of any kind whatsoever, except as
set forth in this Agreement.
10. Costs.
In entering into this Agreement, the Parties agree
that each Party will bear its own costs and attorneys' fees
incurred as a result of the Dispute.
11. Attorneys' Fees.
In the event that any Party institutes any action,
arbitration or other proceeding against the other with respect
to this Agreement, or any matter released or waived in, arising
out of or connected with this Agreement, the prevailing Party
shall be entitled to recover, in addition to costs and any
other relief to which it may be entitled, its reasonable
attorneys' fees.
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12. Independent Investigation.
Each Party to this Agreement has made such
investigation of the facts pertaining to this settlement and
this Agreement and of all the matters pertaining thereto as it
deems necessary.
13. Work Product of DDA.
Originals of all drawings, specifications, reports,
records, documents and other materials, whether in hard copy or
electronic form, which were prepared by Oliver McMillan, its
employees, subcontractors and agents in the performance of the
DDA, have heretofore been delivered to the Agency and City and
shall hereafter be the property of the Agency and the City.
Oliver McMillan shall have no claim for further employment or
additional compensation as a result of the exercise by the
Agency and the City of their full rights of ownership of the
documents and materials hereunder. Oliver McMillan may retain
copies of such documents for its own use. Oliver McMillan
shall have an unrestricted right to use the concepts embodied
therein. Oliver McMillan and its subcontractors may retain
copies of such documents for their own use and shall have an
unrestricted right to use the concepts embodied therein.
14. Miscellaneous.
14.1 Each term of this Agreement is contractual and
not merely a recital.
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14.2 The Parties will execute all such further and
additional documents as shall be reasonable, convenient,
necessary or desirable to carry out the provisions of this
Agreement.
14.3 Each Party has cooperated in the negotiation,
drafting and preparation of this Agreement. Hence, this
Agreement shall not be construed against any Party but shall be
construed to have been drafted jointly by each of the Parties.
14.4 Notices shall be given to the Parties at the
addresses stated below:
14.4.1 If to Oliver McMillan:
Attention: Dean Oliver
Oliver McMillan, Capistrano I, Ltd.
4350 Executive Drive
Suite 300
San Diego, California 92121
(619) 456-0911
14.4.2 If to the Aaencv:
Attention: George Scarborough,
Executive Director
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, California 92675
(714) 493-1171
14.4.3 If to the City:
Attention: George Scarborough,
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
(714) 493-1171
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14.5 This Agreement may be executed in counterparts
which together shall constitute one agreement and be binding
upon and effective as to all Parties.
14.6 This Agreement and the payment of the
consideration referred to herein affect the settlement of
claims and defenses which are denied and contested, and neither
anything contained herein nor the payment of any sum provided
for herein shall be construed as an admission by any Party
hereto of any liability of any kind to any other Party. Each
Party expressly denies that it is in any way liable or indebted
to any other Party.
14.7 Paragraph titles or captions contained in this
Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof.
14.8 Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable, all
other provisions of this Agreement shall be given effect
separately from the provision or provisions affected by such
determination.
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Each Party or responsible officer thereof has read
this Agreement and understands the contents hereof. Each Party
or responsible officer thereof executing this Agreement is
empowered to do so and thereby binds himself or the Party for
whom he signs.
Dated: /��!/LY �, 1993
aPIE�FLD
GEPT
Dated: June 1, 1993 , 1993
ATTEST:
OLIVER MCMILLAN CAPISTRANO I,
LTD, a California limited
partnership
By: OliverMcMillan, a California c poration,
General PY-f .
By:
morgan diver
Chief xe utive Officer
"DEVELOPER"
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY //
By:
Vice- Chaia J asquez
"AGENCY"
Secreta �
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Dated: June 1 , 1993 CITY OF SAN JUAN CAPISTRANO
forge Scarborough
"CITY"
ATTEST:
C1erl
APPROVED AS TO FORM:
STRADLING, YOCCA, CARL SON & RAUTH
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Thomas P. Clark, Jr.
Agency Special Counsel
QL1 awt
i y At orney/General Counsel
5-AV/5-3
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San Juan Capistrano
Community
Redevelopment
Agency
June 4, 1993
Mr. Dene Oliver
Oliver McMillan Capistrano 1, Ltd.
4350 Executive Drive, Suite 300
San Diego, California 92121
Re: Termination of
Dear Mr. Oliver:
At their regular meeting held June 1, 1993, the San Juan Capistrano Community
Redevelopment Agency Board of Directors and the San Juan Capistrano City
Council both took formal action to ratify the Settlement Agreement and Mutual
General Release of All Claims, which terminated the Disposition and Development
Agreement for development of the Historic Town Center.
A fully -executed copy of the Settlement Agreement is enclosed for your files.
Also enclosed are copies of the Agency Resolution No. CRA 93-6-1-1, and the
City Resolution No. 93-6-1-2, relating to termination of the DDA.
Thank you for your interest in San Juan Capistrano and your patience throughout
the situation leading to this action. if we can be of further assistance, please let
us know.
Very truly yours,
Cheryl Johnson
Agency Secretary
Enclosures
cc: Executive Director
Finance Officer
32400 Paseo Adelanto
San Juan Capistrano
California 92675
714-493-1171
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AGENDA ITEM June 1, 1993
TO: Honorable Mayor and Members of the City Council
FROM: George Scarborough, City Manager
SUBJECT: Settlement Agreement with Oliver McMillan Capistrano I, Ltd. regarding the
Historic Town Center Disposition and Development Agreement.
RECOMMENDATION:
By motion, adopt the resolution and approve the ratification of the Settlement Agreement
and Mutual Release of All Claims.
SITUATION,
A. Summary and Recommendation
In November 1987, the City Council and San Juan Capistrano Community Redevelopment Agency
Board of Directors entered into a Disposition and Development Agreement (DDA) with Oliver
McMillan Capistrano I, Ltd. (Oliver McMillan) to bring about the development of the Historic Town
Center project. Subsequent to the execution of the DDA, archaeological resources were discovered
on the site which resulted in a delay in the project. Further analysis of the resources indicated the
inability to proceed with the proposed conceptual plan for the site. In order to avoid litigation and
to terminate the DDA, a Settlement Agreement (attached) in the amount of $137,500 was reached
with Oliver McMillan. Staff recommends that the City Council adopt the resolution and ratify the
Settlement Agreement and Mutual Release of All Claims which was approved in closed session.
B. Background
The DDA set forth the process anS terms under which the Agency and Oliver McMillan would
undertake activities to implement the Historic Town Center project. Both parties were proceeding
with the implementation of the project including the preparation of traffic, environmental, marketing
reports, and drawings and specifications by Oliver McMillan, and the acquisition of property by the
Agency.
In January 1988, during an archaeological survey of the site, cobble foundations were discovered.
The project was delayed while additional studies were undertaken to determine the scope of the
resources. Following the archaeological testing, mitigation measures were identified to determine
if implementation of the original Oliver McMillan conceptual plan for the site was still feasible. In
an effort to provide public input regarding the future use of the site, an Ad Hoc Committee was
appointed by the City Council to look at plans for the site which would preserve the archaeological
resources. This was followed by the current master planning effort for the Historic Town Center
site by City staff and the community.
FOR CITY COUNCIL AGER J J
0
Agenda Item - 2 - June 1, 1993
Oliver McMillan, alleges the expenditure of substantial funds in a good faith effort to comply with
the terms of the DDA and implement the plans envisioned for the Historic Town Center property.
Their implementation of the project was constrained by delays imposed by the City and the
Community Redevelopment Agency.
The City and Agency believe that the original concept plan is no longer feasible because of the
archaeological resources and community efforts to prepare a master plan for the site. It is
appropriate for the DDA to be terminated at this time.
COMMISSIONBOARD REVIEW AND RECOMMENDATIONS:
Not Applicable.
FINANCIAL CONSIDERATIONS:
Funding for the Settlement Agreement will be provided by the Community Redevelopment Agency
budget.
NOTIFICATION:
A copy of this staff report has been forwarded to Dene Oliver.
ALTERNATE ACTIONS:
1. Adopt the resolution and approve the ratification of the Settlement Agreement and Mutual
Release of All Claims.
2. Request additional information from staff.
By motion, adopt the resolution and approve the ratification of the Settlement Agreement
and Mutual Release of All Claims.
GS:CW:rmb
attach
RESOLUTION NO. 93-6-1-2
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EURIZ911-4W075 �L.►r
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, APPROVING THE TERMINATION OF THE
DISPOSITION AND DEVELOPMENT AGREEMENT WITHIN THE SAN JUAN
CAPISTRANO CENTRAL REDEVELOPMENT PROJECT AREA TO OLIVER
MCMILLAN CAPISTRANO I, LTD. (HISTORIC TOWN CENTER)
WHEREAS, the Community Redevelopment Agency of the City of San Juan Capistrano (the
"Agency") is engaged in activities necessary to carry out and implement the Redevelopment Plan for the San Juan
Capistrano Central Redevelopment Project Area; and,
WHEREAS, the Agency entered into a Disposition and Development Agreement (the
"Agreement"), with Oliver McMillan Capistrano I, Ltd., (the "Developer") for the implementation of the project
known as the Historic Town Center located on EI Camino Real in the San Juan Capistrano Central
Redevelopment Project Area; and,
WHEREAS, the Developer was unable to complete its obligations under the Disposition and
Development Agreement, and the Agency and the City of San Juan Capistrano have reached a Settlement
Agreement and Mutual General Release of all Claims.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of San Juan
Capistrano that the Disposition and Development Agreement with Oliver McMillan Capistrano I, Ltd., is hereby
terminated
PASSED, APPROVED, AND ADOPTED this 1st day of June
1993.
ATTEST:
1-
9 0
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) u
CITY OF SAN JUAN CAPISTRANO )
I, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrano, California, DO
HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. 93-6-1-2
adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held
on the 1 cr day of .pine , 1993, by the following vote:
AYES: Council Members Hausdorfer, Campbell, Vasquez and
Mayor Jones
NOES: None
ABSTAIN: None
ABSENT: Council Member Nash
CHERYL • ' i �/
-2-
MEMORANDUM
TO:
Memo to File
FROM:
Dawn M. Schanderl, Deputy City Clerk
DATE:
June 4, 1993
SUBJECT:
Oliver McMillian Settlement ARreemer
Additional documents may be found in the following CRA files:
Settlement/Release Agreement 1993 600.40
McMillian, Oliver
Historic Town Center DDA
Disposition & Development Agreement 1987 600.40
McMillian, Oliver
Historic Town Center (This agreement closed out 5/20/93 per settlement agreement and
will be achieved in 1995)