10-1216_SCALZO FAMILY TRUST_Memo for Global SettlementConfidential Settlement Communication
Protected Under Evid, Code, §§ .1152 et seq., 1119 et. seq.
Until Counter -Signed
Memorandum) for Global Settlement
The Scalzo family Trust ("SFT") and the City of San Juan Capistrano ("City")
enter into this binding memorandum for the resolution of both: (i) the lawsuit SFT filed
against the City in 2005; as well as (ii) the lawsuit SFT filed against the City in 2010,
1. The City will pay SFT a total of $3,175,000,00 by December 31, 2010 and
$3,175,000.00 by June 29, 2011. Payment shall be trade by wire transfer to the
Newmeyer & Dillion Client Trust Aeeount. This is a substantial discount from the
current judgment amount of $9,410,205.93, which is accruing interest at a daily rate of
$1,804.70 since October 25, 2010. The City has agreed that if it is able to hand the
second payment of $3,175,000.00 as a result of replenishing the reserves through
financing or a bond offering before the June 29, 2011.deadline, it will fund the remainder
of the settlement within 72 hours of receiving the funding.
2. All discretionary issues related to the final map for Tentative Tract Map 15145
shall be decided by Sam Shoucair. SFT agrees to exercise due diligence in taking steps
to submit information to the City that is necessary for processing of the final map. SFT
agrees that initial documents for the final map will be submitted by May 1, 2012. SFT
and the City will enter into a Subdivision Improvement Agreement if required.
(a) SFT understands Sam Shoucair may be unavailable from Apri12011
through October 1, 2011.
(b) If Mr. Shoucair leaves his employment with the City, or is unable to
perform this function due to incapacity, the lead contact person for the City concerning
the final map will be a person. SFT and the City mutually agree upon. If within 10 days
after Mr. Shoucair's last day of employment or date of incapacity the parties have not
agreed upon someone to replace Mr. Shoucair, the matter will be submitted to the Court
to select the City's lead contact person, with each party submitting two names
accompanied by each proposed person's curriculum. vitae.
3. The Hall & Foreman, Inc. plan from 2007 for improvements to the City's
dedicated drainage easement ("Hall & Foreman Plan") wilI be implemented, operated and
maintained by the City at the City's expense. The City's construction work in the City's
dedicated drainage easement will be completed consistent with the Hall & Foreman Plan
by June 30, 2013. If the City's construction work in the City's dedicated drainage
easement is ongoing and SFT, its successors or assigns, has a final map and they are
prepared to begin construction, the City agrees to consider construction phasing of the
development to allow construction of the area not adjacent to the City's dedicated
drainage easement to begin while the City's dedicated drainage easement work is
completed.
(a) The City will cause the City's selected contractor to obtain a performance
bond for the benefit of both the City and SFT in an amount equal to 100% of the
construction costs to implement the Hall & Foreman Plan, The City will cause the City's
selected contractor and/or subcontractor to name SFT as an additional insured on all
2466451.2
Confidential Settlemeni Communication
Protected Under Evid. Code, §§ 1152 et seq., 1119 et. seq.
Until Counter -Signed
insurance policies concerning the contractor's and/or subcontractor's work in or near the
City's dedicated drainage easement.
(b) The City will obtain and comply with any necessary resource agency
permits, including from the Department of Fish and Game, Water Quality, and the Army
Corps of Engineers.
(c) SFT agrees that the City has the right to use and shall use the Hall &
Foreman Plan for the City's construction in the City's dedicated drainage easement.
(d) SFT agrees that the City has the right, but not the obligation, to use Hall &
Foreman, Inc, to supervise construction under the Hall & Foreman Plan.
(e) SFT will dedicate real property to the City as indicated in the Hall &
Foreman Pian.
(f) The City agrees to reasonably consider proposed amendments by SFT, its
successors or assigns to TTM 16146 to make TTM 16146 consistent with modifications
to the City's dedicated drainage easement as called for in the Hall & Foreman Plan.
SFT will authorize the City's use of a reasonable portion of SFT's property to
access the City's dedicated drainage easement to implement the Hall & Foreman Plan. A
temporary construction casement for that purpose will be negotiated between Sam
Shoucair and George Polycrates. SFT will provide this temporary construction easement
at no cost to the City.
4. The "2006 Action" (Orange County Superior Court Case Number 06CC04179,
including the two appellate cases, numbers G044137 and G044456) and the "2010
Action" (Orange County Superior Court Case Number 30-2010-00358880) will be
dismissed with prejudice. Within 10 days of the earlier of the execution of this
memorandum and/or putting the settlement on the record, the City will request the
dismissal of its appeals in the 2006 Action and SFT will request the dismissal of the 2006
Action and the 2010 Action. The Honorable Linda Marks shall retain jurisdiction to
enforce this agreement pursuant to Code of Civil Procedure section 664.6; the agreement
between the City and SFT shall be put on the Court's record.
5. SFT and the City shall enter into a written agreement further memorializing this
memorandum which shall include waivers of Civil Code section 1542 as to both the 2006
Action and the 2010 Action. SFT and Nasser Abbaszadeh shall enter into a written
agreement memorializing their agreement which shall include waivers of Civil Code
section 1542 as to the 2010 Action.
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2466451.2
Confidential Settlement Communication
Protected Under Evid. Code, §§ 115.2 at seq., 1119 at, seq.
Until Counter -Signed
6. SFT, the City and Abbaszadeb agree to bear their own costs and attorney's fees as
to the 2006 Action and the 2010 Action. However, in the event there is a dispute arising
out of or related to this memorandum or the written agreement described in paragraph 6,
the parties agree that the prevailing party will be entitled to reasonable attorney's fees.
Dated: December 13, 2010
Frederick T. Scalzo, Co -Trustee
Martin E. & Marion E. Scalzo
Family Trust
Dated: December16, 2010 City of San Juan Capistrano
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2466451.2
Conjidential Settlement Communication
Protected Under Evia Code, §§ 1152 et seq., 1119 et. seg.
Until Counter -Signed
6. SFT, the Cita' and A.bbaszadeh agree to bear their own costs and attorney's fees as
to the 2006 Action and the 2010 Action. However, in the event there is a dispute arising
out of or related to this memorandum or the written agreement described in paragraph 6,
the parties agree that the prevailing party will be entitled to reasonable attorney's fees.
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Dated: December 13, 2010
Fre erick T. Scalzo, Co -Trustee
Martin E. & Marion B. Scalzo
Family Trust
Bated: DecernberA, 2010 City of San Juan Capistrano
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