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1993-0520_MCMILLIAN , OLIVER_Settlement Agreement• SETTLEMENT AGREEMENT AND 17 • y 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. • u� 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). 05/18/93 5348Q/2299 060 - 2 - 0 0 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 05/18/93 5348Q/2299 060 - 3 - 0 0 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, 05/18/93 53480/2299 060 - 4 - 0 0 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. 05/18/93 5348Q/2299 060 - 5 - 0 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. 05/18/93 534SQ/2299 060 - 6 - 0 0 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. 05/18/93 53480/2299 060 - 7 - LI 0 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 05/18/93 5348Q/2299 060 - 8 - C: 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. 05/18/93 53480/2299 060 - 9 - 0 0 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 � 05/18/93 5348Q/2299 060 - 10 - 0 L Dated: June 1 , 1993 CITY OF SAN JUAN CAPISTRANO forge Scarborough "CITY" ATTEST: C1erl APPROVED AS TO FORM: STRADLING, YOCCA, CARL SON & RAUTH � �J Thomas P. Clark, Jr. Agency Special Counsel QL1 awt i y At orney/General Counsel 5-AV/5-3 05/18/93 5348Q/2299 060 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 0 0 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 44: • i Icirs 0:41,417, 1 l : r CORK61 2 1191;i4s*1I • c :wl1 s W55 ol ' .J ul EURIZ911-4W075 �L.►r IL ' 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)