03-0825_SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT_Settlement Agr & ReleaseSETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement") is entered
into on the 25th day of August 12003, by and between the SOUTH ORANGE
COUNTY COMMUNITY COLLEGE DISTRICT, a public agency (the "District"), and the
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public
body, corporate and politic (the "Agency").
RECITALS
A. The District and Agency entered into that certain Agreement dated October 6,
1983 (the "1983 Agreement") pursuant to which, among other things, Agency agreed to
make payments to District with respect to (i) new residential construction within the Central
Redevelopment Project 82-83 on a per dwelling unit basis, beginning in Fiscal Year 1984-
85 pursuant to Section 3 thereof and (ii) Extraordinary Tax Increment, as redefined herein.
B. In or about 1985, the Agency mistakenly paid the District the sum of One
Hundred Ninety One Thousand Eight Hundred Dollars ($191,800) for the construction of
residential units outside the Central Redevelopment Project 82-83 (the "Erroneous DU
Payments"), which Erroneous DU Payments were not in accordance with the 1983
Agreement.
C. The Agency was required, pursuant to Section 3 of the Agreement, to make
DU Payments of One Hundred Sixty Seven Thousand Four Hundred Seven Dollars
($167,407) ("Correct DU Payments").
D. Pursuant to Health and Safety Code Section 33676(a)(2) and Santa Ana
Unified School District v. Orange County Development Agency, 90 Cal. App. 0 404
(2001), the Agency agrees to make retroactive payments to the District of certain statutory
"2 percent" pass-through entitlements for Central Redevelopment Projects 84-1 and 86-1
(the "2% Payments") for Fiscal Years 1985-86 through 2000-01 in the amount of One
Hundred Five Thousand Four Hundred Forty Five Dollars ($105,445).
E. The parties now desire that the District credit the amount of the Erroneous DU
Payments already received by the District against both the Correct DU Payments and the 2%
Payments and that the Agency make payment to the District in the amount of Seventy Eight
Thousand Fifty Two Dollars ($78,052) ("Net Payment Amount") in full satisfaction of all
obligations to the District under the 1983 Agreement through fiscal year 2000-2001. Net
Payment Amount is calculated by adding the Correct DU Payments and the 2% Payments
and subtracting the Erroneous DU Payment.
G. The parties also desire that the Agency's obligation to pay Extraordinary Tax
to the District pursuant to Section 4 of the 1983 Agreement remain in effect; however, the
definition of Extraordinary Tax Increment shall be in accordance with this Agreement and
not the 1983 Agreement.
DOCSOCA983137v4\22299.0074
0 9
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained herein, the parties agree as follows:
1. Full Payment of Prior Claims. Within thirty (30) business days following the
execution hereof, the Agency will pay to District the Net Payment Amount as full accord
and satisfaction of all obligations of the Agency to the District for the Correct DU Payments
and 2% Payments for all fiscal years up to and including Fiscal Year 2001-02.
2. Release and Covenant Not to Sue. Upon payment of the Net Payment
Amount hereunder, the District, its board members, officers, directors, agents, employees,
representatives, attorneys, predecessors, successors, assigns and insurers, hereby generally
and specially release, discharge and acquit the Agency, including its board members,
officers, directors, agents, employees, representatives, attorneys, predecessors, successors,
assigns and insurers, from any and all claims, liabilities, actions, causes of action,
obligations, costs, damages, attorneys' fees, losses, and demands arising out of, in
connection with, raised in, related to, or associated with retroactive payments pursuant to
Health & Safety Code §33676(a)(2). The District warrants and represents and agrees that in
executing this release, it does so with full knowledge of any and all rights which it may have
with respect to the Agency. It is agreed and understood that the payment of the Net
Payment Amount represents the full and final payment for any and all claims for the Correct
DU Payments due to the District from the Agency for all prior years through Fiscal Year
2001-02 and for any and all claims for retroactive 2% Payments pursuant to Health & Safety
Code §33676(a)(2) that are or maybe due to the District from the Agency, and District
hereby waives any claim it may have against Agency for DU Payments or 2% Payments for
any Fiscal Year prior to and including Fiscal Year 2001-02.
The District acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code, which provides 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."
The District hereby waives and relinquishes all rights and benefits which it may have
under Section 1542 of the California Civil Code.
3. Payment of Extraordinary Tax Increment. The Agency shall make payments
of Extraordinary Tax Increment as contemplated in Section 4 of the 1983 Agreement, but
these payments shall be computed in the manner set forth in this Agreement.
Notwithstanding the provisions of the 1983 Agreement, Extraordinary Tax Increment shall
be the product of the District's tax rate and the property taxes payable to the Agency
pursuant to the Health & Safety Code § 33670(b) ("Tax Increment") attributable to the area
within the territorial limits of the District which are coincident with the territorial limits of
Project Area as of the effective date of Ordinance No. 488, which Tax Increment is in
DOCSOCA983137v4\22299.0074
0 0
excess of Three Million Dollars ($3,000,000) in any year of the Redevelopment Plan;
however in no event shall the District be entitled to receive more than Five Million Dollars
($5,000,000) pursuant to Paragraph 4 of the 1983 Agreement aggregated for any
consecutive five (5) year period ("Extraordinary Tax Increment").
4. Capital Improvements. In accordance with the 1983 Agreement, all funds
paid to the District thereunder and/or hereunder shall be used by the District for capital
improvements on the Saddleback College campus.
5. Attorneys' Fees. In the event any action by either party is taken to enforce
this Agreement, the prevailing party shall be entitled to recover its actual attorneys' fees and
costs of litigation from the other party.
6. Nonliability of Officials and Employees of Parties. No member, official or
employee of the parties hereto shall be personally liable to the other party, or any successor
in interest, in the event of any default or breach of this Agreement or for any amount which
may become due hereunder, or on any obligations under the terms of this Agreement.
7. Conflicts of Interest. No member, official or employee of the parties hereto
shall have any personal interest, direct or indirect, in this Agreement, nor shall any member,
official or employee participate in any decision relating to the Agreement which affects his
or her personal interests or the interests of any corporation, partnership or association in
which he or she is directly or indirectly interested.
8. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties, integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
9. Waivers and Amendments. All waivers of the provisions of this Agreement
shall be in writing and executed by the appropriate authorities of the parties, and all
amendments hereto shall be in writing and executed by the appropriate authorities of the
parties.
10. Time of Essence. Time is of the essence with respect to every portion of this
Agreement of which time is a material part.
11. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California. Legal actions concerning any dispute hereunder shall be
instituted in the appropriate court in the County of Orange, California.
12. Further Assurances. Each party without further consideration agrees to
execute such other and further documents, and to perform such other and further acts, as
may be necessary or proper in order to consummate the settlement and transaction
contemplated by this Agreement. In the event that bond counsel for the Agency requires
modifications to this Agreement in order to effect the issuance of bonds, all parties hereto
shall promptly execute such alterations, changes or amendments as may
3
DOCS00983137v4\22299.0074
•
be reasonably required to allow for bond issuance without impeding the obligations and
rights of the parties hereunder.
13. Severability. If any term or provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be affected
thereby, and the parties hereto shall take further actions as may be reasonable
necessary and available to them to effectuate the intent of the parties as to all
provisions set forth in this Agreement.
14. Continued Applicability of 1983 Agreement. Except as amended herein,
the 1983 Agreement shall remain in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST:
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT
By: Az&mm-,;�
Gary L. Poertner, Deputy Chancellor
SAN JUAN CAPISTRANO
REDEVELOPMENT AGENCY
Wyatt , Chairman
R. Monahan, Agency Secretary
APPROVED AS TO FORM
Thomas P. PI rk, Jr.
Agency Special Counsel
Hewitt & O'Neil LLP
District Special Counsel
DOCSOC V 83137v5\22299.0074
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement") is entered
into on the 25th day of August 2003, by and between the SOUTH ORANGE
COUNTY COMMUNITY COLLEGE DISTRICT, a public agency (the "District"), and the
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public
body, corporate and politic (the "Agency").
RECITALS
A. The District and Agency entered into that certain Agreement dated October 6,
1983 (the "1983 Agreement") pursuant to which, among other things, Agency agreed to
make payments to District with respect to (i) new residential construction within the Central
Redevelopment Project 82-83 on a per dwelling unit basis, beginning in Fiscal Year 1984-
85 pursuant to Section 3 thereof and (ii) Extraordinary Tax Increment, as redefined herein.
B. In or about 1985, the Agency mistakenly paid the District the sum of One
Hundred Ninety One Thousand Eight Hundred Dollars ($191,800) for the construction of
residential units outside the Central Redevelopment Project 82-83 (the `Erroneous DU
Payments"), which Erroneous DU Payments were not in accordance with the 1983
Agreement.
C. The Agency was required, pursuant to Section 3 of the Agreement, to make
DU Payments of One Hundred Sixty Seven Thousand Four Hundred Seven Dollars
($167,407) ("Correct DU Payments").
D. Pursuant to Health and Safety Code Section 33676(a)(2) and Santa Ana
Unified School District v. Orange County Development Agency, 90 Cal. App. 4`h 404
(2001), the Agency agrees to make retroactive payments to the District of certain statutory
"2 percent" pass-through entitlements for Central Redevelopment Projects 84-1 and 86-1
(the "2% Payments") for Fiscal Years 1985-86 through 2000-01 in the amount of One
Hundred Five Thousand Four Hundred Forty Five Dollars ($105,445).
E. The parties now desire that the District credit the amount of the Erroneous DU
Payments already received by the District against both the Correct DU Payments and the 2%
Payments and that the Agency make payment to the District in the amount of Seventy Eight
Thousand Fifty Two Dollars ($78,052) ("Net Payment Amount") in full satisfaction of all
obligations to the District under the 1983 Agreement through fiscal year 2000-2001. Net
Payment Amount is calculated by adding the Correct DU Payments and the 2% Payments
and subtracting the Erroneous DU Payment.
G. The parties also desire that the Agency's obligation to pay Extraordinary Tax
to the District pursuant to Section 4 of the 1983 Agreement remain in effect; however, the
definition of Extraordinary Tax Increment shall be in accordance with this Agreement and
not the 1983 Agreement.
DOCSOCA983137v4A22299.0074
•
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants contained herein, the parties agree as follows:
1. Full Payment of Prior Claims. Within thirty (30) business days following the
execution hereof, the Agency will pay to District the Net Payment Amount as full accord
and satisfaction of all obligations of the Agency to the District for the Correct DU Payments
and 2% Payments for all fiscal years up to and including Fiscal Year 2001-02.
2. Release and Covenant Not to Sue. Upon payment of the Net Payment
Amount hereunder, the District, its board members, officers, directors, agents, employees,
representatives, attorneys, predecessors, successors, assigns and insurers, hereby generally
and specially release, discharge and acquit the Agency, including its board members,
officers, directors, agents, employees, representatives, attorneys, predecessors, successors,
assigns and insurers, from any and all claims, liabilities, actions, causes of action,
obligations, costs, damages, attorneys' fees, losses, and demands arising out of, in
connection with, raised in, related to, or associated with retroactive payments pursuant to
Health & Safety Code §33676(a)(2). The District warrants and represents and agrees that in
executing this release, it does so with full knowledge of any and all rights which it may have
with respect to the Agency. It is agreed and understood that the payment of the Net
Payment Amount represents the full and final payment for any and all claims for the Correct
DU Payments due to the District from the Agency for all prior years through Fiscal Year
2001-02 and for any and all claims for retroactive 2% Payments pursuant to Health & Safety
Code §33676(a)(2) that are or maybe due to the District from the Agency, and District
hereby waives any claim it may have against Agency for DU Payments or 2% Payments for
any Fiscal Year prior to and including Fiscal Year 2001-02.
The District acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code, which provides 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."
The District hereby waives and relinquishes all rights and benefits which it may have
under Section 1542 of the California Civil Code.
3. Payment of Extraordinary Tax Increment. The Agency shall make payments
of Extraordinary Tax Increment as contemplated in Section 4 of the 1983 Agreement, but
these payments shall be computed in the manner set forth in this Agreement.
Notwithstanding the provisions of the 1983 Agreement, Extraordinary Tax Increment shall
be the product of the District's tax rate and the property taxes payable to the Agency
pursuant to the Health & Safety Code § 33670(b) ("Tax Increment") attributable to the area
within the territorial limits of the District which are coincident with the territorial limits of
Project Area as of the effective date of Ordinance No. 488, which Tax Increment is in
DOCSOC\983137v4\22299.0074
0 •
excess of Three Million Dollars ($3,000,000) in any year of the Redevelopment Plan;
however in no event shall the District be entitled to receive more than Five Million Dollars
($5,000,000) pursuant to Paragraph 4 of the 1983 Agreement aggregated for any
consecutive five (5) year period (`Extraordinary Tax Increment").
4. Capital Improvements. In accordance with the 1983 Agreement, all funds
paid to the District thereunder and/or hereunder shall be used by the District for capital
improvements on the Saddleback College campus.
5. Attorneys' Fees. In the event any action by either party is taken to enforce
this Agreement, the prevailing party shall be entitled to recover its actual attorneys' fees and
costs of litigation from the other party.
6. Nonliability of Officials and Employees of Parties. No member, official or
employee of the parties hereto shall be personally liable to the other party, or any successor
in interest, in the event of any default or breach of this Agreement or for any amount which
may become due hereunder, or on any obligations under the terms of this Agreement.
7. Conflicts of Interest. No member, official or employee of the parties hereto
shall have any personal interest, direct or indirect, in this Agreement, nor shall any member,
official or employee participate in any decision relating to the Agreement which affects his
or her personal interests or the interests of any corporation, partnership or association in
which he or she is directly or indirectly interested.
8. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties, integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
9. Waivers and Amendments. All waivers of the provisions of this Agreement
shall be in writing and executed by the appropriate authorities of the parties, and all
amendments hereto shall be in writing and executed by the appropriate authorities of the
parties.
10. Time of Essence. Time is of the essence with respect to every portion of this
Agreement of which time is a material part.
11. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California. Legal actions concerning any dispute hereunder shall be
instituted in the appropriate court in the County of Orange, California.
12. Further Assurances. Each party without further consideration agrees to
execute such other and further documents, and to perform such other and further acts, as
may be necessary or proper in order to consummate the settlement and transaction
contemplated by this Agreement. In the event that bond counsel for the Agency requires
modifications to this Agreement in order to effect the issuance of bonds, all parties hereto
shall promptly execute such alterations, changes or amendments as may
3
DOCSOC\993137v4\22299.0074
be reasonably required to allow for bond issuance without impeding the obligations and
rights of the parties hereunder.
13. Severability. If any term or provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be affected
thereby, and the parties hereto shall take further actions as may be reasonable
necessary and available to them to effectuate the intent of the parties as to all
provisions set forth in this Agreement.
14. Continued Applicability of 1983 Agreement. Except as amended herein,
the 1983 Agreement shall remain in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT
By: 49&�
Gary L. Poertner, Deputy Chancellor
SAN JUAN CAPISTRANO
REDEVELOPMENT AGENCY
Wyatt le, Chairman
ATTEST:
R. Monahan, Agency Secretary
APPROVED
Thomas P. Clark, J -
Agency Speci ounsel
/1 k _
Hewitt & O'Neil LLP
District Special Counsel
rd
DOCSOCV 83137v5 22299.0074
0
aGT' OF SAN JUAN CAPISTRANOa
6.
F
}
8
T
CITY OF SAA JUAN CAPISfRANO K
San Juan Capistrano
Community
Redevelopment
Agency
September 5, 2003
Mr. Gary Poertner, Deputy Chancellor
South Orange County Community College District
28000 Marguerite Parkway
Mission Viejo, CA 92692-3635
0
RE: TRANSMITTAL OF EXECUTED SETTLEMENT AGREEMENT & RELEASE
Dear Mr. Poertner:
A fully executed, original Settlement Agreement and Release between the Couth
Orange County Community College District and the San Juan Capistrano Community
Redevelopment Agency is enclosed for your records. It was approved by the Board of
Directors of the Redevelopment Agency at their meeting of September 2, 2003.
If you have any questions regarding this agreement, please contact the Project
Manager, Douglas Dumhart, Principal Management Analyst (949) 443-6316.
Yours truly,
tiahan, CMC
Agreement
cc: Douglas Dumhart, Principal Management Analyst
32400 Paseo Adelanto
San Juan Capistrano
California 92675
949-493-1171
CRA 9/2/2003
AGENDA ITEM `' 1
TO: Pam Gibson, Interim Executive Director
FROM: Douglas D. Dumhart, Principal Management Analyst
SUBJECT: Consideration of Settlement Agreement and Release with South Orange
County Community College District (SOCCCD) ("District").
RECOMMENDATION:
By motion, approve the Settlement Agreement and Release with South Orange County
Community College District in the amount of $78,052 and accompanying Resolution and
authorize the Chairman to execute the documents.
SUMMARY:
The Court of Appeals in the Santa Ana Unified School District (SAUSD) vs. Orange County
Development Agency, 90 Cal. App. 4th 404 (2001) ("Santa Ana Decision'), recently found
the Health & Safety Code, ("HSC") §33676 (a)(2), as amended in 1984, required school
and community college districts to elect to receive the so-called two -percent annual
increase in property tax. Specifically, the Court states:
"Plaintiff argues, and the trial court agrees, that the defendant's allocation
and payment of funds was mandatory, making the plaintiffs election
automatic. We, (the Appellate Court) affirm."
A petition to review the Santa Ana Decision was denied by the California Supreme Court
on September 19, 2002.
The two -percent property tax payments are "inflationary revenues" resulting from growth
in the base- year value of real property within a redevelopment project area, which under
Proposition 13 may not exceed two -percent per year. The Court's finding that two -percent
payments were mandatory applies to all redevelopment project areas adopted between
January 1, 1985, and December 31, 1993, "unless an agreement is entered into, or
payments are otherwise received by, the [affected taxing] agency in accordance with
Health and Safety Code Section 33401."
The District and Agency are advised that the central project areas 84-1 and 86-1 were
adopted during the nine-year time frame covered by the Santa Ana decision. The County
Auditor/Controller has informed the District he would begin computing and allocating "two -
percent" payments effective FY 2001-02. The County Auditor/Controller recognized the
Court's ruling extended two -percent payments to school and college districts as of
FOR CITY COUNCIL AGENDA.
AGENDA ITEM
Page 2
September 2, 2003
January 1, 1985. The County Auditor/Controller acknowledged the two -percent payments
are owed to the District on a retroactive basis. However, the County Auditor/Controller has
already paid these amounts to the affected agencies in prior years, and does not have
authorization to withhold the retroactive amounts from current tax apportionments. Hence,
for the prior years two -percent payments, the District is working directly with the Agency
to obtain those payments for past years.
Additional Items:
The Santa Ana decision has renewed our awareness of the District's 1983 Agreement for
payments in lieu of taxes. In reviewing the Agreement two other matters have arisen. The
requirement to pay the District a per "dwelling unit" (DU) fee for every residential dwelling
unit constructed within the central project area; and, to pay to the District any
"Extraordinary Tax Increment" (ETI) which is in excess of $15 million, aggregated for any
consecutive five-year period. The District and Agency are in concurrence that the DU fee
and ETI apply only to the 1983 project area, since the Agreement was crafted in 1983 and
not subsequently amended when the project area was amended in 1984 and 1986.
Research has found the Agency has not submitted DU payments to the District. Over this
period, 169 dwelling units were constructed within the central project area. Furthermore,
it was discovered that a DU fee was paid to the District for the 273 -unit Capistrano Pointe
Apartments in 1987. Capistrano Pointe Apartments were built in the 1984 amended
project area which is not covered by the District's Agreement. The DU fee was not
necessary and was paid in error.
The ETI liability has not reached its ceiling to trigger tax sharing. The Agency and District
would like to take this opportunity to make this provision parellel to a similar provision in
the Capistrano Unified Shcool District Agreement as recently amended. To that end,
Agency legal counsel has prepared a "Settlement Agreement and Release" to clean-up
pending matters between the Agency and District. The Settlement Agreement and
Release is provided as Attachment #1 to this report.
The Agency proposes to commit to pay funds as set forth in the Settlement Agreement for
a portion of the costs of construction, of certain public improvements, located on the
Saddleback College campus. Examples of these public improvements include: expansion
of science classroom and laboratory; expansion of Library building; modernization of
information technology, communication facilities system and equipment; modernization and
reconstruction of sidewalks, parking lots and other surface areas; and construction of new
Health Sciences and Administration buildings.
FINANCIAL CONSIDERATIONS:
The settlement terms negotiated for the Central Redevelopment Project Area 82-83,
84-1, and 86-1 include the following:
AGENDA ITEM
Page 3
Prior Year Payments
September 2, 2003
1. Agency pays $105,445 in two -percent payments from Central 84-1 and 86-1 for all
prior years through FY 2000-2001.
2. Agency pays $167,407 in "past per DU payments not made" pursuant to Section 3
of Central 82-83 agreement for all prior years through FY 2001-2002.
3. Agency credits ($191,800) in "past per DU payments made in error" for all prior
years through FY 2001-02 against combined amounts in 1 and 2 above.
4. Agency makes $78,052 in total NET payments for all prior years through FY 2001-
02, which settles all prior years claims.
Future Years Payments (beginning FY 2002-2003)
1. Section 3 of Central 82-83 agreement continues to apply to "new residential
construction" that occurs within Central 82-83 project area.
2. Section 4 of Central 82-83 agreement continues to apply "Extraordinary Tax
Increment' which shall be interpreted as "ANNUAL increment in excess of $3
million" rather than "CUMULATIVE increment in fixed five-year blocks".
NOTIFICATION:
Dante Gumucio, Public Economics, Inca`
Gary Poertner, SOCCCD
Katie Slavin, SOCCCDW
Tom Clark, Stradling, Yocca, Carlson & Rauth+
ALTERNATE ACTIONS:
By motion, approve the Settlement Agreement and Release with South Orange
County Community College District in the amount of $78,052 and authorize the
Chairman to execute the documents.
2. By motion, do not approve the Settlement Agreement and Release with South
Orange County Community College District in the amount of $78,052 and
authorize the Chairman to execute the documents.
3. Refer to staff for additional information.
AGENDA ITEM
Page 4
RECOMMENDATION:
September 2, 2003
By motion, approve the Settlement Agreement and Release with South Orange County
Community College District in the amount of $78,052 and authorize the Chairman to
execute the documents.
Respectfully submitted,
Douglas Dumhart
Principal Management Analyst
Attachment #1. Settlement and Release Agreement.
CADOUGLASW,gendas 2003\Settlement Agreement & Release w-SOCCCD 09-03.wpd
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement")
is entered into on the day of , 2003, by and
between the SOUTH ORANGE COUNTY COMMUNITY COLLEGE
DISTRICT, a public agency (the "District"), and the SAN JUAN
CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public
body, corporate and politic (the "Agency").
RECITALS
A. The District and Agency entered into that certain Agreement dated
October 6, 1983 (the "1983 Agreement") pursuant to which, among other things, Agency
agreed to make payments to District with respect to (i) new residential construction
within the Central Redevelopment Project 82-83 on a per dwelling unit basis, beginning
in Fiscal Year 1984-85 pursuant to Section 3 thereof and (ii) Extraordinary Tax
Increment, as redefined herein.
B. In or about 1985, the Agency mistakenly paid the District the sum of One
Hundred Ninety One Thousand Eight Hundred Dollars ($191,800) for the construction of
residential units outside the Central Redevelopment Project 82-83 (the "Erroneous DU
Payments"), which Erroneous DU Payments were not in accordance with the 1983
Agreement.
C. The Agency was required, pursuant to Section 3 of the Agreement, to
make DU Payments of One Hundred Sixty Seven Thousand Four Hundred Seven
Dollars ($167,407) ("Correct DU Payments").
D. Pursuant to Health and Safety Code Section 33676(a)(2) and Santa Ana
Unified School District v. Orange County Development Agency, 90 Cal. App. 4t' 404
(2001), the Agency agrees to make retroactive payments to the District of certain
statutory "2 percent" pass-through entitlements for Central Redevelopment Projects 84-
1 and 86-1 (the "2% Payments") for Fiscal Years 1985-86 through 2000-01 in the
amount of One Hundred Five Thousand Four Hundred Forty Five Dollars ($105,445).
E. The parties now desire that the District credit the amount of the Erroneous
DU Payments already received by the District against both the Correct DU Payments
and the 2% Payments and that the Agency make payment to the District in the amount
of Seventy Eight Thousand Fifty Two Dollars ($78,052) ("Net Payment Amount") in full
satisfaction of all obligations to the District under the 1983 Agreement through fiscal
year 2000-2001. Net Payment Amount is calculated by adding the Correct DU
Payments and the 2% Payments and subtracting the Erroneous DU Payment.
F. The parties also desire that th
Tax to the District pursuant to Section 4
however, the definition of Extraordinary Tax
Agreement and not the 1983 Agreement.
DOCSOC\983137v4\22299.0074
e Agency's obligation to pay Extraordinary
of the 1983 Agreement remain in effect;
Increment shall be in accordance with this
Attachment 1
0
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants contained herein, the parties agree as follows:
1. Full Payment of Prior Claims. Within thirty (30) business days following
the execution hereof, the Agency will pay to District the Net Payment Amount as full
accord and satisfaction of all obligations of the Agency to the District for the Correct DU
Payments and 2% Payments for all fiscal years up to and including Fiscal Year 2001-
02.
2. Release and Covenant Not to Sue. Upon payment of the Net Payment
Amount hereunder, the District, its board members, officers, directors, agents,
employees, representatives, attorneys, predecessors, successors, assigns and
insurers, hereby generally and specially release, discharge and acquit the Agency,
including its board members, officers, directors, agents, employees, representatives,
attorneys, predecessors, successors, assigns and insurers, from any and all claims,
liabilities, actions, causes of action, obligations, costs, damages, attorneys' fees, losses,
and demands arising out of, in connection with, raised in, related to, or associated with
retroactive payments pursuant to Health & Safety Code §33676(a)(2). The District
warrants and represents and agrees that in executing this release, it does so with full
knowledge of any and all rights which it may have with respect to the Agency. It is
agreed and understood that the payment of the Net Payment Amount represents the full
and final payment for any and all claims for the Correct DU Payments due to the District
from the Agency for all prior years through Fiscal Year 2001-02 and for any and all
claims for retroactive 2% Payments pursuant to Health & Safety Code §33676(a)(2) that
are or maybe due to the District from the Agency, and District hereby waives any claim
it may have against Agency for DU Payments or 2% Payments for any Fiscal Year prior
to and including Fiscal Year 2001-02.
The District acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code, which provides 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."
The District hereby waives and relinquishes all rights and benefits which it may
have under Section 1542 of the California Civil Code.
3. Payment of Extraordinary Tax Increment. The Agency shall make
payments of Extraordinary Tax Increment as contemplated in Section 4 of the 1983
Agreement, but these payments shall be computed in the manner set forth in this
Agreement. Notwithstanding the provisions of the 1983 Agreement, Extraordinary Tax
Increment shall be the product of the District's tax rate and the property taxes payable
to the Agency pursuant to the Health & Safety Code § 33670(b) ("Tax Increment")
attributable to the area within the territorial limits of the District which are coincident with
the territorial limits of Project Area as of the effective date of Ordinance No. 488, which
DOCSOC\983137v4\22299.0074
Tax Increment is in excess of Three Million Dollars ($3,000,000) in any year of the
Redevelopment Plan; however in no event shall the District be entitled to receive more
than Five Million Dollars ($5,000,000) pursuant to Paragraph 4 of the 1983 Agreement
aggregated for any consecutive five (5) year period ("Extraordinary Tax Increment").
4. Capital Improvements. In accordance with the 1983 Agreement, all funds
paid to the District thereunder and/or hereunder shall be used by the District for capital
improvements on the Saddleback College campus.
5. Attorneys' Fees. In the event any action by either party is taken to
enforce this Agreement, the prevailing party shall be entitled to recover its actual
attorneys' fees and costs of litigation from the other party.
6. Nonliability of Officials and Employees of Parties. No member, official or
employee of the parties hereto shall be personally liable to the other party, or any
successor in interest, in the event of any default or breach of this Agreement or for any
amount which may become due hereunder, or on any obligations under the terms of this
Agreement.
7. Conflicts of Interest. No member, official or employee of the parties hereto
shall have any personal interest, direct or indirect, in this Agreement, nor shall any
member, official or employee participate in any decision relating to the Agreement which
affects his or her personal interests or the interests of any corporation, partnership or
association in which he or she is directly or indirectly interested.
B. Entire Agreement. This Agreement constitutes the entire understanding
and agreement of the parties, integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements
between the parties with respect to all or any part of the subject matter hereof.
9. Waivers and Amendments. All waivers of the provisions of this
Agreement shall be in writing and executed by the appropriate authorities of the parties,
and all amendments hereto shall be in writing and executed by the appropriate
authorities of the parties.
10. Time of Essence. Time is of the essence with respect to every portion of
this Agreement of which time is a material part.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of California. Legal actions concerning any dispute hereunder
shall be instituted in the appropriate court in the County of Orange, California.
12. Further Assurances. Each party without further consideration agrees to
execute such other and further documents, and to perform such other and further acts,
as may be necessary or proper in order to consummate the settlement and transaction
contemplated by this Agreement. In the event that bond counsel for the Agency
requires modifications to this Agreement in order to effect the issuance of bonds, all
parties hereto shall promptly execute such alterations, changes or amendments as may
3
DOCSOC\983137v4\22299.0074
be reasonably required to allow for bond issuance without impeding the obligations and
rights of the parties hereunder.
13. Severability. If any term or provision of this Agreement shall be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be affected
thereby, and the parties hereto shall take further actions as may be reasonable
necessary and available to them to effectuate the intent of the parties as to all
provisions set forth in this Agreement.
14. Continued Applicability of 1983 Agreement. Except as amended herein,
the 1983 Agreement shall remain in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT
By:
SAN JUAN CAPISTRANO
REDEVELOPMENT AGENCY
Wyatt Hart, Chairman
ATTEST:
Margaret R. Monahan, Agency Secretary
APPROVED AS TO FORM:
V—e
Thomas P. 86rk, Jr.
Agency Special Counsel
Hewitt & O'Neil LLP
District Special Counsel
D
DOCSOC\983137v5\22299.0074
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San Juan Capistrano
Community
Redevelopment
Agency
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY
The Board of Directors of San Juan Capistrano Community Redevelopment Agency will
meet at 7:00 p.m. on September 2, 2003, in the City Council Chamber in City Hall, to
consider: "Consideration of Settlement Agreement and Release with South Orange
County Community College (SOCCCD) ("District")." — Item No. C1
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the Board of
Directors through correspondence addressed to the Board and/or by attending the
meeting and speaking to the Board during the public meeting.
Correspondence related to this item must be received at City Hall by 5:00 p.m. on
Monday, September 1, 2003 to allow time for the Board to consider its content.
If you would like to speak at the meeting, please complete a blue "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the
staff table, just in front of the Council dais. You will be called to speak by the Chairman
when the item is considered.
You have received this notice at the request of the City staff member Douglas D.
Dumhart, Principal Management Analyst. You may contact that staff member at (949)
443-6316 with any questions.
The Community Redevelopment Agency agenda is available to you on the City's web
site: www.sanjuancapistrano.org.
Thank you for your interest,
Meg Monahan, CMC
City Clerk
cc: Dante Gumucio, Public Economics, Inc.*; Gary Poertner, SOCCCD*; Katie
Slavin, SOCCCD*; Tom Clark, Stradling, Yocca, Carlson & Rauth*; Douglas D.
Dumhart, Principal Management Analyst
* Received staff report
32400 Paseo Adelanto
San Juan Capistrano
California 92675
949-493-1171
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San Juan Capistrano
Community
Redevelopment
Agency
September 3, 2003
NOTIFICATION OF ACTION BY THE
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
On September 2, 2003 the San Juan Capistrano Community Redevelopment Agency
met regarding: "Consideration of Settlement Agreement and Release with South
Orange County Community College (SOCCCD) ("District')." Item No. (C1)
The following action was taken at the meeting: Settlement agreement and release
with South Orange County Community College District, in the amount of
$78,052.00 approved.
The agreement is in the process of being executed:
If you have any questions regarding this action, please contact Douglas D. Dumhart,
Principal Management Analyst at 443-6316 for more detailed information.
Thank you,
Cc: Douglas D. Dumhart, Principal Management Analyst: Mr. Tom Clark; PAs. Katie Slavin,
SOCCCD; Mr. Gary Poertner, SOCCCD; Mr. Dante Gumucio, Public Economics, Inc.
32400 Paseo Adelanto
San Juan Capistrano
California 92675
949.493-1171