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1991-0630_ROMER_Settlement Agreement & Release0 Revised 6/07/91 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into in orange County, California, as of June 30 , 1991, by and between Francis C. Romer ("Romer"), Raymundo Becerra ("Becerra"), the City of San Juan Capistrano ("City"), Coastside Financial ("Coastside") and Capistrano Collection Associates, Ltd., Scott W. Wellman, Jeff Bazyler, Michael J. Bazyler (collectively, "Capistrano") with reference to and based upon the following: R E C I T A L S A. Romer, the City and Coastside are parties to a lawsuit entitled Francis Charles Romer v. Richard Hart Gresham, et al., O.C.S.C. Case No. 626361, Appellate No. G010404 (the "Romer Action"). The Romer Action is currently pending in the Court of Appeal for the Fourth Appellate District, Division Three, pursuant to an appeal taken by Romer. B. Capistrano, Romer and Becerra are parties to a lawsuit entitled Capistrano Collections Associates, LTD. v. Francis C. Romer, et al., O.C.S.C. Case No. 65 41 26 ("Capistrano Action"), which is currently pending in the Orange County Superior Court before the Honorable Richard O. Frazee, Sr. The Capistrano Action concerns the enforcement of a construction encroachment agreement entered into by and f between Capistrano Collection Associates, Ltd. and Romer dated February 1, 1991 ("Encroachment Agreement"). C. Certain of the parties herein are also parties to a lawsuit entitled Scott W. Wellman, et al. v. Francis C. Romer, et al., O.C.S.C. Case No. 57 18 62 ("Wellman Action") which is currently pending in the orange County Superior Court before the Honorable James P. Gray. The Wellman Action is not being settled by this Agreement. D. The City has disclosed that it believes that Coastside's construction of Access Easement as described below may not have been done consistent with City's discretionary approval ("Discretionary Approval"). E. Based on the terms of Paragraph 1 hereof and upon further review of the construction to date as it relates to compliance with the conditions of approval, the City hereby represents and warrants to the best of its knowledge that all construction done to date has been consistent with the Discretionary Approval and, to the best of the City's knowledge, there is no claim by the City against Coastside arising from or relating to Coastside's construction with respect to its compliance with the Discretionary Approval. Except as to consistency with the Discretionary Approvals, nothing herein shall be construed as a waiver or release by -2- the City of Coastside's compliance with the Uniform Building Code. F. The parties believe that it would be in their best interest to settle their differences (except the Wellman Action) on the terms specified in this Agreement. NOW, THEREFORE, in consideration of the above Recitals and the conditions and terms contained herein, it is mutually agreed as follows: 1. Completion of Easements. As a condition of the City's approval of certain development by Coastside on the real property described as Assessors Parcel No. 666-241-03 ("Coastside Property"), the City required that the Coastside provide vehicular and pedestrian access easements ("On -Site Access") to Assessors Parcel Nos. 666-241-02 and 666-241-05 on the Coastside Property. The parties have disagreed as to whose obligation it is to pay for or cause the construction of such On -Site Access. However, upon this Agreement becoming final as set forth in Paragraph 5 below, all portions of said On -Site Access on the Coastside Property will be constructed, including all necessary grading and paving, at no cost to Romer in accordance with the time frame set forth herein. All such costs shall be borne exclusively by the City or Coastside. The City and Coastside agree that the City shall pay the first $20,000.00 of said costs, and CXI= • Coastside shall pay all costs in excess of the first $20,000,00. The construction of the On -Site Access shall be commenced concurrently with the date Romer or his successor - in -interest begins the rough grading necessary for development of any portion of the Romer Property, provided that the City and Coastside may elect to commence construction sooner. The cost of any grading required on the Romer Property necessary to complete the On-site Access shall be borne exclusively by Romer or his successor -in -interest. Romer, or his successor -in -interest, shall, if required by the City, complete any grading necessary on the Romer Property in coordination with, and as required for, the construction of the On -Site Access. In the event that the City does not require either or both of the On -Site Access as a condition of development approval, Romer at his sole discretion may elect to not utilize either of the On -Site Access not required by the City. Upon such election City and Coastside shall have no obligation to construct the On -Site Access not utilized and Romer shall have no obligation to perform the grading required on the Romer Property in connection with the On -Site Access not utilized. In the event that one of the On -Site Access is not constructed the City's obligation under this Paragraph 1 shall be reduced to $10,000. 2. Construction of Ortega Highway Access. Upon this Agreement becoming final as set forth in Paragraph 5 below, -4- the City shall construct at no cost to Romer, a right turn in and right turn out access from Ortega Highway into Assessors Parcel No. 666-241-02 and a deceleration lane and right turn lane for the approach thereto in accordance with the time frame set forth herein ("Ortega Access"). The Ortega Access shall be at the location and constructed in a manner consistent with the final approved site plan for the Romer Property and with Caltrans' encroachment permit. The City will be the applicant for this work and will apply to Caltrans for all necessary permits. The City's obtainment of any necessary permits for the Ortega Access, will be a condition for this Agreement to become final as set forth in Paragraph 5 below. The parties acknowledge that the City's inability to obtain the encroachment permit will not constitute a breach of this Agreement. The Ortega Access shall be commenced concurrently with the date Romer or his successor -in -interest begins the rough grading necessary for development of any portion of the Romer Property; provided that the City may elect to commence construction sooner; provided further that the City's obligation under this Paragraph shall terminate if the City's obligation to commence construction has not arisen on or before December 31, 1997. 3. Del Obispo Street Improvements. With regard to Romer's property at 32101 Del Obispo Street in San Juan Capistrano, Romer shall irrevocably offer to dedicate an -5- C 0 0 easement to the City for the street improvements on Del Obispo Street. Romer will not have any obligation to fund said street improvements including any related landscaping and irrigation within the dedicated right of way. Provided that nothing herein shall be construed to require City to install said street improvements at any particular time. Said offer shall be made no later than 15 business days after the date this Agreement becomes final, as set forth in Paragraph 5 below. The irrevocable offer to dedicate shall be in a form approved by the City, consistent with its standard dedication form. The legal description of the easement shall be provided to Romer. At his option, Romer may make this irrevocable offer to dedicate prior to this Agreement becoming final as provided in Paragraph 5 below. If he does so, the rights and obligations of the parties regarding this paragraph will be effective even if the Agreement is otherwise terminated. 4. Dismissal of Romer Action. Romer shall dismiss the appeal in the Romer Action within ten days of this Agreement becoming final, as set forth in Paragraph 5 below. 5. Finality of Settlement. This Agreement shall become final if and on the date that all of the following items have been completed: WE 0 (a) The City has obtained all necessary permits from Caltrans for the construction of the access from Ortega Highway into Assessors Parcel No. 666-2241-02 as set forth in Paragraph 2. (b) Romer or his successor -in -interest obtains all necessary discretionary entitlements/permits from the City to develop Assessors Parcel Nos. 666-241-01, 666-241-02, 666- 241-04 or 666-241-05 in the following manner: (i) The approved land uses shall be a mixed use commercial development, including retail and office uses; (ii) The approved land use intensity for the entire development site shall permit a net floor area ratio of at least 55%, provided it conforms to all other applicable provisions of Comprehensive Development Plan 78-1 (Ortega Highway Planned Community) and with Title 9 (Land Use) of the San Juan Capistrano Municipal Code; (iii) The approvals shall not be conditioned upon Romer or his successor -in -interest being responsible for any offsite improvements except for fees, deposits and bonds pursuant to Sections 9-2.316 and 9-2.317 of Title 9, Chapter 2, Article 3 of the San Juan Capistrano Municipal Code, where normally applicable City wide. -7- 0 0 (iv) The parking requirements imposed on the project shall not exceed those imposed as of the date the Agreement is executed in the City's Zoning Code. (v) At his option, Romer may waive any of the requirements set forth in subparagraphs (i) -(iv) above, in which case said requirement will not be a prerequisite to this Agreement becoming final. 6. Processing of Application/Mutual Cooperation. The parties agree to cooperate with each other in good faith and to use all reasonable diligence in undertaking the acts necessary to finalize this Agreement. Within two business days of the execution of this Agreement, the City agrees to commence the necessary steps to obtain the Caltrans encroachment permit required pursuant to Paragraph 1 herein. Thereafter, the City shall use all reasonable diligence to pursue the permit until obtained. once Caltrans issues a conceptual approval of the permit or issues the permit itself (if no conceptual approval is issued), Romer, or his successor -in -interest, shall submit his entitlement applications and supporting documentation within 180 days. The City agrees to process Romer's (or his successor -in - interest's) application for development in good faith and within all applicable statutory time periods. The parties acknowledge that the City retains its legislative discretion regarding the application for development of the Romer am • 0 Property and has not waived that discretion by entering into this Agreement, and is not in breach hereof if it disapproves any of the approvals required in Paragraph 5 hereof. The parties further acknowledge that the terms hereof apply only to the properties described herein and the City retains the right to condition approvals of development of any other property owned by Romer and/or Coastside within the City in accordance with the laws and not this Settlement Agreement. 7. Assignment. The parties hereby agree that the rights, benefits and obligations set forth in the Agreement and each of its terms shall be assignable and shall inure to the benefit of and be binding on the heirs, personal representatives, successors -in -interest and assigns of the parties, and each of them. 8. Interim Handling of Appeal/Termination of Agreement. Until and unless this Agreement becomes final, the parties agree that the appeal referred to in Paragraph 4 will be handled as follows: (a) Upon execution of the Agreement, the parties will request that the appeal be held in abeyance pending the processing of Romer's development application. (b) If this Agreement does not become final as set forth above in Paragraph 5 by December 1, 1992, all parties MM 9 0 agree that the appeal shall be revived and shall be processed as provided by law unless the parties to this Agreement agree in writing that it shall remain inactive. If the appeal is reactivated under the provision of this paragraph, the Agreement shall be deemed to be terminated and shall have no further force and effect except as provided in subparagraph (d) below. (c) Upon the happening of any event prior to December 1, 1992, that demonstrates that the conditions contained in Paragraph 5 will not be met (e.g., Caltrans refuses to issue the necessary permits for access), Romer may apply to the Court of Appeals to reinstate the appeal without waiting until the expiration of the one year period referred to in Paragraph 8(b). If such application is granted, this Agreement will be deemed terminated and shall have no further force and effect. (d) Effect of Termination of Agreement. If this Agreement is terminated, it shall have no effect on the parties' respective rights and obligations, if any, except: (1) Any statute of limitations applicable to the enforcement of any right or obligation within the scope of this Agreement shall be tolled from the date this Agreement is executed to the date it is terminated; and (2) If Romer has made the irrevocable offer of dedication described in Paragraph 3, the -10- parties' rights and obligations under that paragraph shall remain in effect. 9. Mutual Release. Upon this Agreement becoming final as provided in Paragraph 5, the parties, on behalf of themselves, their successors, agents, attorneys, employees and assigns mutually release and forever discharge each other, their agents, employees, attorneys, officers, officials, boards, and contractors of and from any and all claims, demands, actions or causes of action, obligations, liabilities, indebtedness, costs or expenses, arising from the facts set forth in this Agreement, including, but not limited to, those claims set forth in the Romer Action and the Capistrano Action. Included in such release are any and all claims that Romer and Capistrano Collection Associates, Ltd. may have which relate to the Encroachment Agreement. Upon this Agreement becoming final as provided in Paragraph 5, Romer acknowledges that Capistrano Collection Associates, Ltd. has fully complied with all obligations arising under the Encroachment Agreement including, but not limited to, any obligation of Capistrano Collection Associates, Ltd. to restore Romer's Property to the condition it was in prior to the encroachment. By this release, the parties intend upon its effectiveness, to release and forever discharge claims both known and unknown as provided, and the parties expressly waive any right under California Code Section 1542, which provides: -11- 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. This release does not apply to any parties' rights relating to the Wellman Action which is not settled by this lawsuit. 10. Dismissal of Capistrano Action. Within ten (10) days of the execution of this Agreement, Capistrano agrees to file a Request for Dismissal of the Capistrano Action, dismissing the entire action without prejudice. If this Agreement does not become final as provided in Paragraph 5, the Capistrano Action may be refiled without prejudice to any parties' rights and obligations. 11. Execution Not an Admission. By entering into this Agreement, no party hereto admits that the claims of the other were or are valid or meritorious. Each party hereto has in the past denied and continues to deny the claims, assertions, allegations and contentions of the others and this Agreement and the underlying settlement are strictly for the purposes of compromising a dispute. 12. Advice of Counsel. The undersigned and each of them hereby declare and represent that in effecting this Agreement, each has received full legal advice as to their respective legal rights and each hereby certifies that he or -12- it has read all of this Agreement and fully understands the same. This Agreement has been fully negotiated amongst the parties hereto and shall be construed as if drafted by all parties to it. 13. Additional Documents and Instruments. Each of the parties hereto agrees to execute and deliver to each of the other parties hereto all additional documents, instruments and agreements required and to take such additional actions as are required to implement the terms and conditions of this Agreement, including the recordation of the documents described above. 14. Integration. This instrument, incorporating the Exhibit thereto, contains the entire agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations and agreements between the parties hereto, or any of them, whether written or oral, except as expressly provided herein. Each of the parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. 15. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, the remaining -13- provisions shall nevertheless remain in full force and effect and shall not be affected, impaired, or invalidated. 16. Attorney Fees. Each party shall be responsible for his or its own costs and fees incurred in connection with each of the Romer Action and the Capistrano Action, suits and disagreements, including attorney fees, expert fees, and all other litigation costs. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument. IN WITNESS WHEREOF, the parties have executed this Agreement. CITY OF SAN JUAN C<APIS�TrRANO By: Z' / /'Mayor Kenneth Friess APPROVED AS TO FORM: STRADLING YOCCA, CARLSON & RAUTH By: / T om s P. Clark, Jr., Acting City Attorney, City of San Juan Capistrano -14- L� COAST,,SIDE FINANCIAL By: .._Ak- . L� — Scott W. Wellman Its: U l C-1= - 1'( liSl CAPISTRANO..COLLECTION ASSOCI�, LTD. Scott W. Wellman By: V- Jef B Yldf n By: Michael SCOTT/W. WELLMAN i By:— Scott W. Wellman JEFF BAZYLER By: MICHAEL J: BAZYLER By: -15- ex ti - APPROVED AS TO FORM: RUTAN & TUPER Leonard A. m ` 9/119/014112-0001/030 FRANCIS CHARLES ROMER By: F ancis C a es Rome RAYMUNDO BECERRA By: -16- April 24, 1995 TO: ed Simon, City Engineer FRO Brian Perry, Senior Civil Engineer SUBJECT: 'Romer Property" 32101 Del Obispo Street AP No. 673-111-15 I I understand that the lender has foreclosed on the above subject project on the corner of Del Obispo Street and Calle Aspero and that the property is in the process of being sold. The property is referenced in the June 30, 1991 Settlement Agreement and Release (attached). In particular, Section 3, page 5 references the Irrevocable Offer of right-of-way for Del Obispo Street widening. Due to my connection with the widening project, I have been asked by one potential buyer of the property, the City's position for acquiring the additional street right-of-way for the widening project. "-C fa 4t*tt. Please identify the obligation, if any, of the new ro a owner to dedicate the proposed right-of- way under this agreement. The additional right-of-wav needed is undefined at this time. dial --;u4*ls� BP:ssg sp 40, attachment -�/ M / ' , 4" brian\4-20romr.mem 00 . • FRANCIS C. ROMER • P.O. Box 520 San Juan Capistrano, CA 92675 Phone: (714) 493-4328 Fax: (714) 2404)351 The Honorable Mayor and Members of the City Council City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 I==1 n _ _ • M : Il MN r: SI SIL=. • ..oil .cr Dear Honorable Mayor and Members of the City Council: �I 11 Ir", Please accept this letter as our intent to defer submittal of the development application for our properties along Rancho Viejo Road, until more favorable economic conditions exist. At the request of the City, we agreed to submit a devsk pment application for our properties; 180 days from Caltran's conceptually approving the Ortega access Into and out of our propedles. We received notification of approval February 21, 1992. The 180 day period expires August 19, 1992. While we are pleased with the City's cooperative attitude to date, the current economic climate does not permit us to proceed as anticipated. Please be assured that our interest continues to be the development of a project that Is not speculative in nature, but rather one that proves to be financially rewarding to all concerned as well as being an asset to our community. In the Interim, we will continue our search for the appropriate tenants, and work with your staff in finding a solution to the desired main entry from Rancho Viejo Road. Thank you for your Sincerely F . Romer 9/1 a19 a X 5 Lo-r5 M. Tom 'j J 8tL?- u• C hTy ATTY. %WCO MANAGEMENT COMPANY• C,0 31738 RANCHO VIEJO HOPP, SUITE P SAN JUAN CAPISTRANO, CA 92675 May 7, 1992 Raymundo Becerra RBA 31881 Los Rios Street San Juan Capistrano, Ca 92675 Re: Main entry design from Rancho Viejo Road Dear Ray; In response to your letter dated March 21, 1992 relating to Mr. Carlos Romer's master plan, after careful consideration of the Situation, Newco Management is not in a position to take any action regarding Mr. Romer's plan. You will have to proceed as you deem appropriate without any involvement of Ortega Properties. Sincerely, Mar aret Cogdell Property Manager TELEPHONE (714) 248-2900 TELECOPIER (714) 248-0227 March 21, 1992 Margaret Cogdell Ortega Properties 31738 Rancho Viejo Suite B RBA San Juan Capistrano, CA 92675 RE: Main Entry design from Rancho Viejo Road Planning Dear Margaret: Urban Design Thank you for taking the time from your busy schedule to discuss the proposed main entry design from Rancho Viejo Road. As I mentioned, I have been retained by Mr. Carlos Romer to master plan the development of his property. The land is contiguous to yours and consists of three acres with access from Rancho Viejo Road and Ortega Highway. In the process of preparing various site planning studies it has become apparent that a joint main entry would be mutually beneficial. The most favorable location would be to align the project entry drive from Rancho Viejo Road with that of the existing entrance for the Ortega Business Center. As we discussed, before we finalize our development plans, we have been requested by the city to solicit your participation. The attached letter from Tom Tomlinson, the City's Director of Planning, outlines possible solutions in implementing the main entry. 31881 Los Rios St. One alternative not discussed in the letter, which I propose, is the idea of Mr. Romer San Juan Capistrano California 92675 constructing the main entry in exchange for the land north of the centerline of the 714-240-3646 entry (see attached exhibit). This option would eliminate, for you, costs associated with the preparation of lot line adjustments, engineering and construction costs. Margaret, the proposed main entry offers an opportunity to enhance the development potential of both properties. It would consolidate you and Mr Romer's existing driveways, thus permitting left turn movements. It also offers an opportunity to secure access to your parcel from the city through Via Espada. And, as you can see, its implementation could be achieved in a number of ways acceptable to both parties. Please review the proposal and let me know what your thoughts are. Sincerely, "a Raymundo Becerra RB/Is MEMBERS OF THE CITY COUNCIL o •I��� JERRY HARRIS KENNETH E FRIESS DIIIUGUSE - GARY L HAUSOORFER GIL JONES IS V.n76Ibit 1961 R6 I Jcvr vnsouez CITY MANAGER •`- \ • STEf HEN B JULIAN January 22, 1992 Raymoundo Becerra RBA Planning & Urban Design 31881 Los Rios Street San Juan Capistrano, CA. 92675 RE: Main Entry Design From Rancho Viejo Road (Romer) Dear Raymundo: As a follow-up to our discussion this past week, it is our mutual desire to align the main project entry drive from Rancho Viejo Road with that of the existing entrance for the Ortega Business Center. In order to accomplish this objective there are several options which are available to satisfy this request. The first and easiest arrangement would be to execute a lot line adjustment between Mr. Romer's and the Ortega Properties parcel. There is an obvious advantage in that it squares the property boundaries creating an opportunity for a superior site design solution. A second alternative could involve a partial purchase of property from Ortega Properties in conjunction with a minor lot line adjustment necessary to transfer ownership. A third alternative is to use the Redevelopment Agency as eminent domain powers to obtain the necessary right-of-way. This latter option is the least desirable and would involve reimbursement from Mr. Romer for all costs incurred to complete that procedure. As we discussed, it appears the property is being offered for sale by Ortega Properties, either options 1 or 2 would be very advantageous in increasing the value of their property. Either yourself or Mr. Romer may want to approach the property owner on the merits of either opportunity and solicit their participation. Ray, I hope the above clarifies my objective to the entry issue. Please let me know if I can be of further assistance. Sincerely, Thomas G. Tomlinson Director of Planning TGT:mjm 32400 PASEO ADELANTO. SAN JUAN CAPISIRANO. CALIFORNIA 92675 • (714) 493-1171 w (iv) The parking requirements imposed on the project shall not exceed those imposed as of the date the Agreement is executed in the City's Zoning Code. (v) At his option, Romer may waive any of the requirements set forth in subparagraphs (i) -(iv) above, in which case said requirement will not be a prerequisite to { this Agreement becoming final. 6. Processing of-Application/Mutual Cooperation. The parties agree to cooperate with each other in good faith and to use all reasonable diligence in undertaking the acts necessary to finalize this Agreement. Within two business days of the execution of this Agreement, the City agrees to commence the necessary steps to obtain the Caltrans encroachment permit required pursuant to Paragraph 1 herein. Thereafter, the City shall use all reasonable diligence to pursue the permit until obtained Once Caltrans issues a conceptual approval of the permit or issues the permit itself (if no conceptual approval is issued), Romer, or -bis successor -in -interest, shall submit his entitlement applications and supporting documentation within 180 des. The City agrees to process Romer's (or his successor -in - interest's) application for development in good faith and within all applicable statutory time periods. The parties acknowledge that the City retains its legislative discretion regarding the application for development of the Romer COM