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06-0427_SCALZO FAMILY TRUST, MARTIN E. AND MARION_Settlement Agr and Gen Release0 0 SET'T'LEMENT AGREEMENT AND GENERAL RELEASE Frederick T. Scalzo, co -trustee of the Martin E. and Marion E. Scalzo 1987 Family Trust ("Scalzo") filed an action against the City of San Juan Capistrano ("City") on January 4, 2005 entitled Martin E. and Marion E. Scalzo Family Trust, Frederick T. Scalzo, Co -Trustee v. The City of San Juan Capistrano, in the Orange County Superior Court, Case Number 05CCOI845 ("Damage Action"). In that action, Scalzo alleged that the City through actions or inactions related to the ownership, maintenance and operations of the Cook Reservoir ("Cook Reservoir") and a Dedicated Drainage Easement ("drainage easement) damaged Scalzo's real property located at 32281 Del Obispo Street, San Juan Capistrano, California ("Subject Property"). The damage to Scalzo's property includes but is not limited to damage from water intrusion onto and across the Scalzo property. Further, Scalzo has conducted subsurface investigations and has determined the presence of water under portions of his property which may have been caused from the City's actions or inactions as alleged in the Damage Action. On March 16, 2006, Scalzo filed an action against the City for a writ of mandate, and other relief entitled Martin E. and Marion E. Scalzo Family Trust, Frederick T. Scalzo, Co - Trustee v. The City of San Juan Capistrano and The City Council of The City of Sam Juan Capistrano, Orange County Superior Court Case Number 06CCO4179 ("Writ Action"). In the Writ Action, Scalzo alleges that the City's imposition of certain development conditions on Scalzo's Tentative Tract Map Number 16146 ("TTM 16146"), was unlawful, arbitrary, capricious, lacking in evidentiary support, or constituted an abuse of discretion. The Parties met at mediation on April 5, 2006, and attempted to resolve their differences with respect to the both the Damage Action and the Writ Action. The parties have since arrived at a settlement of the Damage action only, which terms are set forth below. The Writ Action is not resolved and shall be unaffected by this Settlement Agreement and General Release. NOW, THEREFORE, in consideration of the recitals and in exchange for the promises, payments and releases set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned and each of them agree to settle the Damage Action on the terms and conditions set forth below. 1. PAYMENT A. Payment to Sealzo. The City or its insurer shall pay or cause to be paid to Scalzo, the total sum of $2,500,000.00, to be paid within thirty days (30) days after the execution of this Agreement and delivery of an executed Request for Dismissal with Prejudice of the Damage Action. It is understood and agreed that each parry is to bear its own costs and attorneys' fees with respect to this Agreement and the underlying Damage Action. The Request for Dismissal is not to be filed until after the settlement funds have been disbursed to Scalzo following the clearance of the settlement check. B. No Admission. It is expressly understood that this is a compromise of doubtful and disputed claims and that by paying the settlement amount to Scalzo, the City is not admitting liability, which in fact, is denied. Nothing herein is intended to modify or alter in any way the 602488.1 SD obligations that the City has to maintain the drainage easement. 2. RELEASE OF CLAIMS Scalzo for itself, heirs successors and assigns, does hereby release the City of San Juan Capistrano, it agents, servants, employees, representatives, consultants, experts and attorneys in this matter from any and every claim, demand, action, cause of action, or suit in law or in equity arising out of or in any way connected with the claims asserted by Scalzo in the Damage Action including but not limited to any and all liability related to actions or inactions by the City related to its ownership, maintenance or operations of the Cook Reservoir and/or the Dedicated Drainage Easement. This is a contractual undertaking and is not a mere recital. It is expressly understood and agreed that nothing in this Settlement Agreement shall in any way affect or limit Scalzo's right to pursue the Writ Action, as this is a settlement as to the Damage Action only. Asa further condition of settlement, Scalzo waives the provisions of Section 1542 of the California Civil Code which states: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Scalzo is represented by legal counsel of its choice who have explained the provisions of this Agreement. 3. MISCELLANEOUS A. Good Faith. Scalzo warrants and represents and agrees that this Settlement Agreement has been entered into in good faith, at arm's length, is without collusion, and is the product of the negotiation with the City and its representatives. B. No Duress. Scalzo represents and warrants that it is entering into this Agreement freely, voluntarily and without coercion. C. Advice of Counsel. Scalzo represents and warrants that it has had a fair opportunity to confer, and have conferred, with the counsel of its choosing and did not rely in any way upon any representation by counsel for other parties. Scalzo, after conferring with legal counsel of its choosing, expressly agrees that it is voluntarily, knowingly, intentionally and intelligently entering into this Agreement. Scalzo represents and warrants that it is entering into this Agreement after reading it, having had the consequences of executing this Agreement explained by legal counsel of its choosing, and fully understand and voluntarily accept its terns. D. Competence and Authority. Each person signing this Agreement warrants that she/he is legally competent to execute this Agreement. Each person that signs this Agreement on behalf of any party represents individually for the benefit of all other parties to this Agreement that such person has the capacity and authority to sign and bind the entity for which he or she is signing this Agreement. E. No Other Warranties or Representations. Scalzo warrants and represents that no 602488.1 0 0 other party, nor any agent or attorney of any party, has made any promise, representation, warranty whatsoever, expressed or implied, concerning the subject matter of this Agreement that is not contained in this Agreement. F. Successors and Assigns_ This Agreement shall be binding upon and inure to the benefit of Scalzo, its heirs, successors in interest and assigns. G. Governing Law. Except where preempted by the laws of the United States or the rules or regulations of any agency or instrumentality thereof, this Agreement is to be interpreted, construed and governed by the laws of the State of California. H. Further Acts. Scalzo agrees to perform all further acts and execute and deliver all documents as may be reasonably necessary to give effect to the provisions and intent of this Agreement. I. Attomeys' Fees and Costs. Except as stated herein, the parties shall bear all of their own attorneys' fees and costs connected with the Action. In the event any legal proceeding is instituted to interpret, enforce, or for breach of any of the terms of this Agreement, the prevailing parry shall be entitled to recover reasonable attorneys' fees. 1. Time. Time is of the essence of this Agreement and each and every provision hereof. . K. Modifications and Waivers. No change, modification, or waiver of any provision of this Agreement shall be valid or binding unless it is in writing dated after the date hereof and signed by or on behalf of all parties to this Agreement. No waiver of any breach, term, or condition of this Agreement by any party shall constitute a subsequent waiver of the same or any other breach, term, or condition or a continuing waiver after demand for strict compliance. L. Drafting. This Agreement is the product of negotiation and preparation by and among the parties and their respective attorneys. Neither this Agreement nor any provision thereof shall be deemed prepared or drafted by one party or another, or its attorneys, and shall not be construed more strongly against any party. M. Severability. To the fullest extent possible, each provision of this Agreement shall be broadly interpreted in such fashion as to be effective and valid under applicable law. If any provision of this Agreement is declared void or unenforceable with respect to particular circumstances, such provision shall remain in full force and effect in all other circumstances. If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect. N. Headings. The headings in this Agreement are for convenience in reference only and in no way define, limit or describe the scope or intent of this Agreement or the provisions of such sections. O. Counterparts and Fax. This Agreement may be executed in any number of counterparts, and by facsimile, each of which shall be an original and all of which shall be 3 602488.1 0 0 deemed to be one in the same Agreement. Properly executed signature pages, whether they constitute original signature pages, or facsimile signature pages, may be attached to the original Agreement. Any copied signature page or facsimile signature page attached to this Agreement will have the same force and effect as an original signature page. P. Reserved Rights. This Agreement only resolves the claims for physical damages to the Scalzo property as alleged in the Damage Action against the City and its, agents, servants, employees, representatives and consultants. It is expressly understood that the Writ Action, which was filed on or about March 16, 2006, is to continue to be litigated. Nothing in this Agreement is intended in any way to restrict or limit Scalzo's rights to continue to litigate and pursue the Writ Action, all of which rights are expressly reserved. IN WITNESS WHEREOF, the undersigned representatives of Scalzo have respectfwly and duly executed this Agreement or have caused it to be executed on their behalf. DATED: Apri142006 The Scalzo Family Trust n i nna stermiller, o -trustee By: Frederick Scalzo, Co -trustee 4 602488.1 Meg Monahan From: Glos, Christopher D.[Christopher.Glos@KutakRock.com] Sent: Thursday, January 11, 2007 2:16 PM To: Meg Monahan Cc: jshaw@SanJuanCapistrano.org; Richards, Edwin J. Subject: Public Records Act request for the Scalzo Settlement Agreement fGF 20070111154959.p df (275 KB) Meg, Attached please find a copy of the Settlement Agreement and General Release ("Settlement Agreement") by and between Frederick T. Scalzo, co -trustee of the Martin E. and Marion E. Scalzo 1987 Family Trust and the City of San Juan Capistrano. As we discussed, the Settlement Agreement is subject to disclosure under the Public Records Act. In The Register Division of Freedom Newpapers, Inc, v. County of Orange, 158 Cal. App. 3d 893 (1984), the appellate court upheld a trial court order to disclose a settlement agreement entered into by the county because it was a "public record" within the meaning of Government Code section 6252(d) and assurances of confidentiality by the county regarding the settlement agreement were inadequate to transform what was a public record into a private one. In this particular case, there is not even a confidentiality provision in the Settlement Agreement. I also reviewed the manner in which the Public Record Act request must be made and a verbal request is sufficient to comply with the Acts requirements. If you have any questions, please do not hesitate to contact us. 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