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08-0710_LAGUNA NIGUEL, CITY OF / 93-129 LTD_Settlement Agreement SETTLEMENT AGREEMENT This Settlement Agreement (the "Settlement Agreement") is dated and made as of July 10, 2008, by and between City of San Juan Capistrano ("Petitioner") on the one hand, and City of Laguna Niguel and 93-129 Ltd. (collectively, 'Respondents"), on the other hand. Petitioner and Respondents are referred to in this Settlement Agreement collectively as 'Parties" and separately as a•,Party " Recitals A. On June 27, 2007, Petitioner filed a Petition for Writ of Mandate in the Orange County Superior Court, entitled City of San Juan Capistrano v. City of Laguna Niguel, et al., Case No. 07CC07436, in which Petitioner alleged certain causes of action, including for violation of the California Environmental Quality Act, the Subdivision Map Act, and the City of Laguna Niguel Municipal Code('First Lawsuit"). B. On December 4, 2007, Petitioner voluntarily filed a Request for Dismissal of the First Lawsuit without prejudice, which request was subsequently granted by the Superior Court. C. On November 20, 2007, Petitioner filed a second Petition for Writ of Mandate in the Orange County Superior Court, entitled City of San Juan Capistrano v. City of Laguna Niguel, et al., Case No. 07CC12192, in which Petitioner alleged certain causes of action, including for violation of the California Environmental Quality Act, the Subdivision Map Act, and the City of Laguna Niguel Municipal Code ("Second Lawsuit"). (The First Lawsuit and the Second Lawsuit are hereinafter collectively referred to as the "Lawsuits".) D. The Parties have since entered into and/or have agreed to enter into the "SJC & 93- 129 Agreement," attached hereto as Exhibit A and incorporated herein by this reference ("SJC Agreement"). NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, including without limitation, the SJC Agreement and the Recitals set forth above, the truth of which is hereby acknowledged, and which are incorporated herein by reference, and for other 1 good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Petitioner and Respondents enter into the following Agreement: Terms of Settlement 1. Dismissal. A Request for Dismissal is attached hereto and incorporated herein ("Request for Dismissal"). Within three (3) business days following the notice of execution of the Settlement Agreement by all Parties, Petitioner shall cause to be filed with the Orange County Superior Court a Request for Dismissal with prejudice substantially in conformance with attached Exhibit B ("Request for Dismissal"). Petitioner shall promptly notify Respondents of any order granting the Request for Dismissal. 2. Recordation. Per the terms of the SJC Agreement, 93-129 Ltd. shall cause the SJC Agreement to be recorded in the Official Records of the County of Orange after receipt of the notice granting the Request for Dismissal and within 3 days of the issuance of the grading permit or prior to recordation of Final Map 93-129, whichever occurs first. 3. Further Assurances and Authorizations to Settle. The Parties, acting by themselves or through their respective attorneys, shall promptly prepare and execute all documents necessary to effectuate the obligations set forth in this Settlement Agreement and represent and warrant that any necessary approvals or authorizations required to consummate the covenants and conditions of this Settlement Agreement and effectuate the resolution of all of the claims which are the subject of this Settlement Agreement have been obtained. 4. Representations, Covenants and Warranties. With respect to themselves, the Parties represent, covenant and warrant as follows: a. The Parties have received independent legal advice from their respective attorneys with respect to the advisability of making the settlement provided for herein and with respect to the advisability of executing this Settlement Agreement; 2 b. The Parties have made such investigation of the facts pertaining to the settlement set forth in this Settlement Agreement and of all the matters pertaining thereto as they deem necessary; C. The Parties, or a responsible officer or agent thereof, have read this Settlement Agreement and understand the contents hereof; d. Each person executing this Settlement Agreement has the full right,power, and authority to enter into this Settlement Agreement on behalf of the Party for whom he or she has executed this Settlement Agreement, and the full right, power, and authority to execute any and all necessary instruments in connection with this Settlement Agreement, and to fully bind such Party to the terms and obligations of this Settlement Agreement; and e. Each Party is executing this Settlement Agreement as a voluntary act. 5. No Admission of Liability. The Parties acknowledge and agree that this Settlement Agreement is executed as a part of a compromise and settlement of disputed obligations and claims. The Parties further understand and acknowledge that this Settlement Agreement is being made for the purpose of avoiding the expense and inconvenience of further disputes and nothing herein shall be construed as an admission of any fact, matter, thing or liability of any kind. Neither this Settlement Agreement nor any terns hereof shall be offered or received as evidence in any proceeding in any forum as an admission of any liability or wrongdoing on the part of any of the Parties. b. Non-Assignment of Claims. The Parties represent and warrant that there has been no assignment, sale, or transfer, by operation of law or otherwise, of any claim, right, cause of action, demand, obligation, liability or interest released or assigned by them under this Settlement Agreement. 7. Waiver of Costs and Attorneys' Fees. The Parties shall be responsible for their own litigation fees and costs, expert witness fees and costs, and attorneys' fees and costs incurred and/or accrued in connection with the Lawsuits and with the preparation and negotiation of this Settlement 3 Agreement, including, without limitation, the SJC Agreement, and specifically waive any and all claims against each of the other Parties hereto for the recovery of the same. In any action to enforce any of the provisions of this Settlement Agreement, including, without limitation, the SJC Agreement, the prevailing Party shall be entitled to all of its attorneys' fees, costs and litigation expenses incurred in connection with such action or proceeding, including, without limitation, any post judgment fees, cost or expenses incurred on any appeal or in the collection of any judgment. 8. Construction. a. Paragraph titles or captions contained in this Settlement Agreement are used for convenience or reference only and are not intended to, and shall not, in any way enlarge, define, limit, extend or describe the rights or obligations of the Parties or affect the meaning or construction of this Settlement Agreement, or any provision hereof. b. If any provision of this Settlement Agreement is found, determined and/or adjudicated to be illegal, invalid or unenforceable, then the same shall in no way affect the legality, validity or enforceability of any other provision of this Settlement Agreement. 9. Beneficiaries, Successors and Assigns. This Settlement Agreement is binding upon and shall inure to the benefit of each of the Parties and their respective subsidiaries, affiliates, predecessors, successors, divisions, shareholders, directors, officers, employees, attorneys, agents, representatives, spouses, heirs, licensees and assigns. 10. Joint Preparation. The Parties have cooperated and participated in the drafting and preparation of this Settlement Agreement. Accordingly, the Parties hereby acknowledge and agree that this Settlement Agreement shall not be construed or interpreted in favor of or against any of the Parties by virtue of the identity of its drafters or their respective contributions hereto. 11. Execution in Counterparts. This Settlement Agreement may be executed either as a single document or in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Photocopies and fax copies of executed signature pages shall be acceptable for all purposes. 4 12. Govemine Law. This Settlement Agreement shall be construed in accordance with and be governed by the laws of the State of California. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS SETTLEMENT AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. TERMS OR ORAL PROMISES WHICH ARE NOT CONTAINED IN THIS WRITTEN CONTRACT WILL NOT BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS SETTLEMENT AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. IN WITNESS WHEREOF, this Settlement Agreement is executed as of the date indicated by or on behalf of the Parties as set forth below. PETITIONER: RESPONDENTS/REAL PAR Y: CITY SA JCAPISTRANO CITY OF LAGUNA GVL By: y: Joe S o, Mayor aul a ,Mayor ATTEST. /n\ ATTEST/:) rg iet R. Monahan, City Clerk Pam Lawrence, City Clerk APPR V AS TO FO APPROVED AS TO FORM By: JQVI By: mar San oval, City Attome Terty E. ixon, City 9 orney 7/if/aa 93-129 L//� By: Hal M.M. Sears, General Partner APPROVED AS TO FORM By: illiam R. Devine, Esq. 5 u v EXHIBIT A SJC & 93-129 AGREEMENT WHEN RECORDED MAIL TO: City of San Juan Capsitrano 32400 Paseo Adelanto San Juan Capistrano,CA 92675 Attn:City Clerk SPACE ABOVE THIS LINE FOR RECORDER'S USE SJC & 93-129 AGREEMENT THIS AGREEMENT("Agreement") is entered into as of May ,2008 ("Effective Date,% by and between the City of San Juan Capistrano ("SJC'),the City of Laguna Niguel ("LM), and 93-129, a California limited partnership ("93-129 LTD'). SJC, LN and 93-129 LTD may hereinafter be referred to individually as a"Party"and collectively as the"Parties." RECITALS A. 93-129 LTD proposes to improve approximately 50 acres of real property commonly referred to as Tentative Parcel Map 93-129, located within LN and more specifically the Bear Brand Ranch Community and shown on Exhibit A, attached ("PM 93-129"). LN approved PM 93-129 and Minor Use Permit 07-03P to allow for the subdivision of four custom estate parcels and as part of that entitlement approximately 73%, approximately 36.33 acres, of PM 93-129, as shown on Exhibit B attached, will be preserved as open space forever. Further, the ridgeline view silhouette which is approximately 3,700 feet long within PM 93-129 is being preserved as also shown on Exhibit B. B. In 2003 SJC Public Works Director contacted representatives of 93-129 LTD about SJC constructing a high pressure water line through PM 93-129 to create a looped water facility within the Moulton Niguel Water District. C. In 2003 SJC City Staff reviewed PM 93-129 and on August 5, 2003 the City Council of SJC viewed PM 93-129 as part of the formal approval of the Improvement Agreement for City Water Facilities between SJC and 93-129 LTD("Water Agreement"). The Mayor of SJC executed the Water Agreement and the SJC City Clerk caused it to be recorded with the Orange County Recorder's office. D. 93-129 LTD agreed to the Water Agreement and to grant a thirty foot (30') wide and approximately nine hundred sixty foot (960') long water easement ("Water Easement") without monetary consideration as an accommodation to SJC with the understanding that SJC would support the entitlement through LN. 93-129 LTD believes that the twenty foot $76739.2 1 (20')wide vehicle driving area the length of the Water Easement is an intrusive and highly visible eyesore. PM 93-129's condemnation lawyer's appraiser believes that the value of the Water Easement in conjunction with the Water Agreement exceeds One Million Dollars($1,000,000). E. LN requires a Site Development Permit, which necessitates a public hearing, for the development of custom homes and other improvements within each estate parcel within PM 93-129. F. SJC and 93-129 LTD, along with others, desire a connection with the O Hill Ridge Trail System within the Bear Brand Ranch and Colinas de Capistrano with the Peppertree Bend Hiking and Equestrian Trail per the O Hill Ridge Trail Easement, attached hereto as Exhibit C. G. SJC filed a lawsuit against LN and 93-129 LTD on or about June 27, 2007 after the LN Planning Commission approved PM 93-129 and again on or about November 21, 2007 after the City Council upheld the Planning Commission's decision on appeal (the "Actions'). The Actions allege that the LN violated various provisions of the California Environmental Quality Act, provisions of the Laguna Niguel Municipal Code, and the Subdivision Map Act when it approved PM 93-129 and the accompanying Mitigated Negative Declaration for PM 93-129. In consideration of the above facts and pursuant to the terms and conditions contained herein, the Parties agree as follows: AGREEMENT 1. Maintenance Access Trail Easement. a) In order to minimize the visual impact and to harmonize with the rural character of PM 93-129, SJC agrees that the thirty (30) foot wide graded bench over the Water Easement shown on approved PM 93-129 shall be reduced to a fourteen(14)feet wide graded bench with a fourteen(14)feet wide decomposed granite("DG")surface with an uphill railroad tie slough wall installed on end and to a maximum height of four(4) feet("Revised Maintenance Access Trail Easement"). If at any time SJC determines that the railroad tie slough wall is insufficient protection for the Revised Maintenance Access Trail Easement,a beach stone wall shall be substituted for the railroad tie wall similar to the beach stone wall constructed by Moulton Niguel Water District adjacent to its 12 foot wide vehicular access trail off of s Old Ranch Road within the Bear Brand Ranch Community as depicted in Exhibit D. Water and Sewer f pipes shall be placed in substantial conformance to Exhibit E. i f 2 3947393 b) Within and incorporated into the Revised Maintenance Access Trail Easement SIC may grade a twenty foot (20') by twenty foot (20') DG turnaround at MH#5 shown on Exhibit D with landscape installed downhill from the DG turnaround to reduce visual impact from SIC. c) To maintain the appearance of a trail on the side of the hill within the Bear Brand Ranch, SIC agrees that the Revised Maintenance Access�Trail Easement as provided for in the Water Agreement shall never be improved with any surface other than natural brown-colored decomposed granite with railroad ties imbedded at an angle to direct water off of the grail surface and that the Revised Maintenance Access Trail Easement area shall be graded and the waterline installed in a way to blend with the natural t slopes. ` i 2. Building Walls&Structures. i a) The walls of all building structures within PM 93-129 shall be constructed with earth-tone colors as viewed from SJC. Earth-toned colors generally mean a color scheme emulating the color palette found in dirt,rock,and plant material that are endemic to the area and to a California coastal setting. b) The roof colors shall be earth-tone colors which include muted or toned down shades of red, green, grey and brown, and specifically excludes blue. Cladding McBean No. 8 mix clay the set in grey mortar and Vermont red slate roofs are examples of muted shades of red roofs. 3. `IV" Ditches and Down Drains. V Ditches within PM 93-129 shall be earth-toned in color with surrounding landscaping to ensure there is no or absolute minimum visual impact from the San Juan Capistrano valley. Down drains shall be in underground pipes to eliminate visual impact from SIC. 4. Retaining.Walls. Retaining walls within PM 93-129 shall be earth-tone in color, which shall include but not be limited to retaining walls made out of large beach stones, similar to the ones found within Bear Brand Ranch Community. 5. Tennis/Snorts Court Lighting; The lighting for a tennis/sports court constructed within PM 93- 129 shall be shielded and directed so that light is only projected on the tennis/sport court surface. Further, tennis/sports court lights shall be equipped with a timer so that they automatically turn off after a r maximum of 1 hour per the existing Laguna Niguel Municipal Code,no lighting or playing of tennis shall be allowed between I0:00pm and 7:30am. i 6. LN Notice. LN agrees to provide SIC with notice of any future discretionary approvals involving j PM 93-129 relating to build-out of PM 93-129 or any proposed modification to PM 93-129. 7. Equestrian Trail Connection. SJC agrees to investigate and if reasonably possible cause the ° hiking and equestrian trail between the estate lots located at 31541 Peppertree Bend, San Juan Capistrano l 3 ' a and 31531 Peppertree Bend, San Juan Capistrano and legally established by Easement Deed recorded May 11, 1982 in the Official Records of the County of Orange as Document # 82-161967 to be reestablished as part of SJC's trail system, resulting in a connection of the Peppertree Bend Hiking and Equestrian Trail within SJC to the 0 Hill Ridge Trail System within IN. 8. Landscayina. SJC has reviewed the preliminary landscape plan for PM 93-129 which has been i approved by IN, Orange County Fire Authority and the United States Fish & WiIdlife Service ("Landscape Plan"). a) No additional palm trees shall be added to the Landscape Plan; however, a future home owner of one of the four estate parcels within PM 93-129 shall be allowed to plant palm trees in close proximity to their home all of which are located on the hillside substantially below the ridgeline. b) Within OCFA and USFWS parameters,landscaping along the southern property line which abuts the existing property shall include an informal linear transition zone to naturally blend into the existing vegetation in order to minimize sharp visual demarcations 9. Binding Agreement Binding on Successors. a) 93-129 LTD shall cause this Agreement to be recorded against PM 93-129 and the Agreement shall run with the land. Within seven(7)days of recordation, 93-129 LTD shall mail a copy of the fully executed and recorded Agreement to SJC. b) This Agreement is binding on the Parties and enforceable against each of the Parties in accordance with the terms and conditions set forth herein. The terms and conditions herein contained shall be binding upon and inure to the benefit of any heirs,successors and assigns of the Parties. 10. Arbitration of Disputes. ALL DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY SUBMISSION TO ARBITRATION AT THE ORANGE COUNTY OFFICES OF JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. ("JAMS") FOR BINDING ARBITRATION. THE PARTIES MAY AGREE ON A RETIRED JUDGE FROM THE JAMS PANEL. IF THEY ARE UNABLE TO AGREE, JAMS WILL PROVIDE A LIST OF THREE AVAILABLE JUDGES AND EACH PARTY MAY STRIKE ONE. THE REMAINING JUDGE WILL SERVE AS THE ARBITRATOR AT THE ARBITRATION HEARING. THE PARTIES AGREE THAT ARBITRATION MUST BE INITIATED WITHIN ONE YEAR AFTER THE CLAIMED BREACH OCCURRED AND THAT THE FAILURE TO INITIATE ARBITRATION WITHIN THE ONE-YEAR PERIOD CONSTITUTES AN ABSOLUTE BAR TO THE INSTITUTION OF ANY NEW PROCEEDINGS. THE AGGRIEVED PARTY CAN INITIATE ARBITRATION BY SENDING WRITTEN NOTICE OF AN INTENTION TO ARBITRATE BY REGISTERED OR CERTIFIED MAIL TO THE OTHER PARTY AND TO JAMS. THE { 4 $76735.2 i NOTICE MUST CONTAIN A DESCRIPTION OF THE DISPUTE, THE AMOUNT INVOLVED, AND THE REMEDY SOUGHT. IF AND WHEN A DEMAND FOR ARBITRATION IS MADE BY EITHER PARTY, THE PARTIES AGREE TO EXECUTE A SUBMISSION AGREEMENT, PROVIDED BY JAMS, SETTING FORTH THE RIGHTS OF THE PARTIES IF THE CASE IS ARBITRATED AND THE RULES AND PROCEDURES TO BE FOLLOWED AT THE ARBITRATION HEARING. NOTWITHSTANDING THE ABOVE, AT LEAST TWO WEEKS PRIOR TO THE ARBITRATION, EACH PARTY MUST MAKE A FULL DISCLOSURE TO THE OTHER PARTY OF (i)ALL DOCUMENTS TO BE PRESENTED BY SUCH PARTY AND (ii)ANY WITNESSES TO BE CALLED BY SUCH PARTY. NOTHING IN THIS PARAGRAPH SHALL IN ANY WAY LIMIT OR OTHERWISE RESTRICT A PARTY'S RIGHT OR ABILITY TO OBTAIN INJUNCTIVE RELIEF THROUGH THE'COURT SYSTEM. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, EXCEPT AS PROVIDED HEREIN, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"PROVISION TO NEUTRAL ARBITRATION. SJC: LN: 93.129 LTD: 11. Cost of Enforcement. In any action between the Parties seeking enforcement of any of the terms and provisions of this Agreement,or otherwise arising in connection with this Agreement,the prevailing Party in such action shall be awarded, in addition to damages, injunctive or other relief, reasonable attorneys' fees,costs of arbitration and court costs if any. 12. Independent Advice and Investieations. Each Party represents and warrants that it has received independent legal advice from its attorneys with respect to the execution of this Agreement and that it has 1 read this Agreement and understands its contents. Each Party represents and warrants that it has made such investigation of the facts pertaining to the settlement set forth in this Agreement and of all matters pertaining thereto as it is independently deemed necessary and appropriate. Each Party further represents 57673t.2 5 I a and warrants that it has relied solely upon facts obtained from its own investigations and upon the advice of its own attorneys and legal representatives in executing this Agreement and that it has not relied upon any statement or representation of any other Party or their attorneys or representatives. 13. Severability.In the event any part of this Agreement should be found invalid, unenforceable, or nonbinding,the remaining portion will remain in force and fully binding. 14. Authority to Sian. The signatory of this Agreement on behalf of 93-129 LTD and the signatories of the Agreement on behalf of SJC and LN each represents that he or she has the authority to sign this Agreement on behalf of that party. IN WITNESS WHEREOF,the Parties have executed this Agreement as of the Effective Date. CITY OF SAN JUAN CAPISTRANO CITY OF LAGUNA NIGUEL By: By: Joe Soto,Mayor Paul G aab,Mayor ATTEST: ATTEST: By: By: Margaret R.Monahan,City C er Pam Lawrence,City Clerk APPROVED AS TO FORM APPROVED AS TO FORM By: By; Omar Sandoval,City Attorney Terry E.Dixon,City Attorney 93-129 LTD By: Hal M. Sears,General Partner APPROVED AS TO FORM By: William R. Devine,Esq. I 6 576738,2 - /�\ /« Exhibit xz � . xff . � . z : a A W 96 a W ........... v m, I iF W� ' t CCC i _ �. rrG _ �:� 5•I �i Exhibit C Trails and Easements -��yyjj��Y /� � � �A�•f�lhe�J$ [4sEY9a'.o�Z C � i X20% E?.� SSI �l►f�j• 1 � sir►-1,` r So'!�NONE tr�� F,+: // •°GG�y <,t ,�-@ ' ' ' »r CLI'oeafslope CL Edge af flat bench 30' Easement 11' Easement upstope of toe S' mid section of easement 11' Easement on downside of stope-----i Slope 14' Rat bench Slolle CL w ~m x_ �u�� �� '~ CL e"lm"s"r ~~' EXHIBIT B CIV-110 ATTORNEY OR PARTY WITHOUT ATTORNEY(No and ss): TELEPHONE NO: UR cot USE UNf.Y Jason Retterer, Assistant City Attorney (714) 558-7000 32400 Paseo Adelanto San Juan Capistrano, CA 92675 ATTORNEY FOR(,Vww):City of San Juan Capistrano Insert name of coon and name of judicial distria and branch court,it airy: Superior Court of California, County of Orange PLAINTIFF/PETITIONER:City of San Juan Capistrano DEFENDANT/RESPONDENT:City of Laguna Niguel, et al. REQUEST FOR DISMISSAL El Personal injury,Prope Damage,or Wrongful Death CASE NUA�ER F-1Motor Vehicle Other 07CC 12192 Family Law Eminent Domain Other(s eel :Petiition for Writ of Mandate (CEQA) -A conformed copy will not be returned by the clerk unless a method of return is provided with the document.- I.TO THE CLERK:Please dismiss this action as follows: a.(1) ® With prejudice (2) ❑ Without prejudice b.(1) ❑ Complaint (2) ❑ Petition (3) Cross-complaint filed by(name): on(date): (4) ❑ Cross-complaint filed by(name): on(date): (5) ® Entire action of all parties and all causes of action (6) ❑ Other(specify):• Date: Omar Sandoval (TYPE OR PRINT NAME OF 0 ATTORNEY PARTY WITHOUT ATTORNEY) (SIGNATURE) •If dismissal requested is of specified panics only of specified causes of action only, or of specified cross-complaints only, so stale and identify Attomey or party without attorney for: the panics,causes ofaction,or cross-complaints to be dismissed. ® Plaintiff/Petitioner ❑ Defendant/Respondent Cross-complainant 2.TO THE CLERK:Consent to the above dismissal is hereby given.** Date: (TYPE OR PRINT NAME OF Li ATTORNEY PARTY WITHOUT ATTORNEY) (SIGNATURE) ••If a cross-complaint-or Response(Family Law)seeking affirmative relief-is Attorney or party without attorney for: on file. the attomey for cross-complainant (respondent) must sign this consent if requited by Code of Civil Procedure section 581(i)or(j). HCross Plaintiff/Petitioner ❑ Defendant/Respondent -complainant (7o be completed by clerk) 3. Dismissal entered as requested on(date): 4. Dismissal entered on(date): as to only(name): 5. Dismissal not entered as requested for the following reasons(specify): 6. ❑ a.Attorney or party without attomey notified on(date): b.Attorney or party without attorney not notified.Filing party failed to provide ❑ a copy to conformed❑ means to return conformed copy Date: Clerk,by Page I of I wen Adopted for hfandatory use Code ofCi%il Procedure.p$et rt Judicial Council of California REQUEST FOR DISMISSAL Cal Rules ofCaun.rule t CIV•I 10 1Rev)anal)'1.2007) ...LAIN/Il/I(111Y Christy Jakl From: Christy Jakl Sent: Wednesday, February 01, 2012 1:39 PM To: Omar Sandoval Subject: O'Hill Grading Plans and Settlement Agreement HI Omar, Did you ever received the executed and recorded SIC 93-129 Agreement for 011ill? Thanks!! C'hi'ist? Jakl Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949)493-1053 fax L Maria Morris From: Steven Apple Sent: Wednesday, January 27, 2010 7:06 PM To: 'Omar Sandoval; Maria Moms Subject: FW. O'Hill Grading Plans and Settlement Agreement Attachments: 4080 001.pdf Beginning to look like either the party responsible to record it(O'Hill) never did,or if they did, never distributed it— hopefully just an oversight and not a game.......will keep you both informed either way. Steven A Apple, AICP Community Development Director City of San Juan Capistrano Email: SApple@sanjuancapistrano.ora City Hall Telephone: (949)493-1171 From: Steven Apple Sent: Wednesday,January 27, 2010 7:03 PM To: ErikPerkowski; 'Larry Longenecker' Cc: David Contreras; 'svolk@adams-streeter.com'; Steven Apple Subject: O'Hill Grading Plans and Settlement Agreement Good evening Mr. Lary Longenecker and Mr. Erik Perkowski: It does not appear that either the City of San Juan Capistrano nor the City of Laguna Niguel has received a copy of the recorded three party agreement called for in the attached page 4. To assist in making sure no one stumbles and that we all work thru this as amicably as possible, several of us have been trying to track down this document, however neither our City Clerk's office, City Attomey, myself nor Mr. Larry Longenecker with the City of Laguna Niguel has a copy. It is also not clear whether or not Engineer Steve Volk with Adams Streeter has seen or is using this agreement document and it would be critical to insure the initial drawings to be reviewed by all parties are based on that final version recorded document and not on one of the earlier drafts. Perhaps we should locate such an official recorded copy per the attachment and distribute it to all parties so we can hopefully move thru this as quickly and effortlessly as possible? Hopefully it was recorded in July, 2008 and copies have just not yet been distributed? Thank you, Steven A Apple, AICP Community Development Director City of San Juan Capistrano Email: SAPPIe a0sanivancaoistrano.orq City Hall Telephone: (949)493-1171 Good morning Steven- I do not have, and have never seen, a copy of the recorded agreement. I am happy to ask the applicant if the agreement was recorded, and if they will send you a copy of that recorded document. Of course you may also i contact the applicant directly if yo ve any questions or concerns about t�agreement. (Erik Perkowski, 949-251-2001, erikoerkowski0yahoo.com) Thank you sirl -Lang . 2 TO: Omar Sandoval &Jason Retterer FR: Erik Perkowski RE: SJC&93-129 Agreement and Dismissal of Lawsuit Date: July 17, 2008 Dear Jason and Omar, Attached is an original of the SETTLEMENT AGREEMENT with all signatures required. Per your instructions SJC is now to sign the Settlement Agreement and submit to the court to dismiss the lawsuit. Please provide me with a copy of the Settlement Agreement with SJC signatures. Also enclosed is a copy of the SJC&93-129 AGREEMENT. Per the terms of the SETTLEMENT AGREEMENT page 2,Section 2, 93-129 Ltd will retain the original signed document and shall cause the recordation of this original after receipt of the notice granting the Request for Dismissal and within 3 days of the issuance of the grading permit or prior to recordation of Final Map 93-129,whichever occurs first. Finally there is one minor issue raised by Bill Devine. He noted that page 1 of the SJC&93-129 AGREEMENT, line one notes that the AGREEMENT is entered into as of May_2008. We can agree to enter a date in May that we began working to settle this issue, or we can change May to July. Bill suggested that we all agree to correct May and change to July 15 and replace this corrected page 1 with everyone's consent.Also,to remain consistent to also replace Page 1 in Exhibit A SJC&93-129 AGREEMENT that is attached to the SETTLEMENT AGREEMENT. Please confirm what you wish to do about the May_2008 date. Thank ou for your help. Erik Perkowski T0: Jason Retterer SJC City Attorney FR: Erik Perkowski 93-129 Ltd RE: Settlement Agreement Issues DATE: July 1,2008 Dear Jason, Attached are 2 Settlement Agreements. Per your comments regarding the change to Item 2, Recordation—we are okay with either use of language.We are okay with recording the Settlement Agreement within 3 days as originally written with you or we are okay with change to recording prior to recordation of Final Map 93-129. If you need to discuss further please feel free to call me directly 949 3951044 or Robert 0 Hill at 949 2512010. However,we are most anxious to complete this Settlement Agreement with SJC and have Laguna Niguel City Council sign prior to the expiration of our current legal extension on the pending suit. Thank you, Erik Perkowski 94-129 Ltd. 32400 PASEO ACELANTO MEMBERS OFTHE CNP COUNCIL BAN JUAN CAPISTRANO,CA 92675SAM ALLFATO (949)493-0171 Irmnum TOMAS W.HR1BAR (949)4931053 FA% nunlnu I 1961 MARX NIELSEN w. vsanjuancapistrano.org 1776 JOE SOTO � • DR.LonoREs use TRANSMITTAL June 25, 2008 TO: Mr. Eric Perkowski (pickup at City Hall) FROM: Meg Monahan, MMC —City Clerk (949)443-6308 RE: SJC & 93-129 agreement Enclosed (3) original executed documents G0 0 v\ K �"07 0,� San Juan Capistrano: Preserving the Past to Enhance the Future C� RrmuE�laow,.gxe B+B.. WHEN RECORDED MAIL TO: 93-129 LTD One Upper Newport Plaza Newport Beach,CA 92660 SPACE ABOVE THIS LINE FOR RECORDER'S USE SJC & 93-129 AGREEMENT THIS AGREEMENT ("Agreement") is entered into as of May , 2008 ("Effective Date"), by and between the City of San Juan Capistrano ("SJC"), the City of Laguna Niguel ("LN"), and 93-129, a California limited partnership ("93-129 LTD"). SJC, LN and 93-129 LTD may hereinafter be referred to individually as a"Party" and collectively as the"Parties." RECITALS A. 93-129 LTD proposes to improve approximately 50 acres of real property commonly referred to as Tentative Parcel Map 93-129, located within LN and more specifically the Bear Brand Ranch Community and shown on Exhibit A, attached ("PM 93-129"). LN approved PM 93-129 and Minor Use Permit 07-03P to allow for the subdivision of four custom estate parcels and as part of that entitlement approximately 73%, approximately 36.33 acres, of PM 93-129, as shown on Exhibit B attached, will be preserved as open space forever. Further, the ridgeline view silhouette which is approximately 3,700 feet long within PM 93-129 is being preserved as also shown on Exhibit B. B. In 2003 SJC Public Works Director contacted representatives of 93-129 LTD about SJC constructing a high pressure water line through PM 93-129 to create a looped water facility within the Moulton Niguel Water District. C. In 2003 SJC City Staff reviewed PM 93429 and on August 5, 2003 the City Council of SJC viewed PM 93-129 as part of the formal approval of the Improvement Agreement for City Water Facilities between SJC and 93-129 LTD ("Water Agreement"). The Mayor of SJC executed the Water Agreement and the SJC City Clerk caused it to be recorded with the Orange County Recorder's office. D. 93-129 LTD agreed to the Water Agreement and to grant a thirty foot (30') wide and approximately nine hundred sixty foot (960') long water easement ("Water Easement") without monetary consideration as an accommodation to SJC with the understanding that SJC would support the entitlement through LN. 93-129 LTD believes that the twenty foot 1 576738.2 (20') wide vehicleThIving area the length of the Water EaserTient is an intrusive and highly visible eyesore. PM 93-129's condemnation lawyer's appraiser believes that the value of the Water Easement in conjunction with the Water Agreement exceeds One Million Dollars($1,000,000). E. LN requires a Site Development Permit, which necessitates a public hearing, for the development of custom homes and other improvements within each estate parcel within PM 93-129. F. SJC and 93-129 LTD, along with others, desire a connection with the 0 Hill Ridge Trail System within the Bear Brand Ranch and Colinas de Capistrano with the Peppertree Bend Hiking and Equestrian Trail per the 0 Hill Ridge Trail Easement, attached hereto as Exhibit C. G. SJC filed a lawsuit against LN and 93-129 LTD on or about June 27, 2007 after the LN Planning Commission approved PM 93-129 and again on or about November 21, 2007 after the City Council upheld the Planning Commission's decision on appeal (the "Actions"). The Actions allege that the LN violated various provisions of the California Environmental Quality Act, provisions of the Laguna Niguel Municipal Code, and the Subdivision Map Act when it approved PM 93-129 and the accompanying Mitigated Negative Declaration for PM 93-129. In consideration of the above facts and pursuant to the terms and conditions contained herein, the Parties agree as follows: AGREEMENT 1. Maintenance Access Trail Easement. a) In order to minimize the visual impact and to harmonize with the rural character of PM 93-129, SJC agrees that the thirty (30) foot wide graded bench over the Water Easement shown on approved PM 93-129 shall be reduced to a fourteen (14) feet wide graded bench with a fourteen (14) feet wide decomposed granite ("DG") surface with an uphill railroad tie slough wall installed on end and to a maximum height of four (4) feet ("Revised Maintenance Access Trail Easement"). If at any time SJC determines that the railroad tie slough wall is insufficient protection for the Revised Maintenance Access Trail Easement, a beach stone wall shall be substituted for the railroad tie wall similar to the beach stone wall constructed by Moulton Niguel Water District adjacent to its 12 foot wide vehicular access trail off of Old Ranch Road within the Bear Brand Ranch Community as depicted in Exhibit D. Water and Sewer pipes shall be placed in substantial conformance to Exhibit E. 2 $76738.2 b) Within and incorpo ted into the Revised Maintenance AcR ess Trail Easement SJC may grade a twenty foot (20') by twenty foot (20') DG turnaround at MH#5 shown on Exhibit D with landscape installed downhill from the DG turnaround to reduce visual impact from SJC. c) To maintain the appearance of a trail on the side of the hill within the Bear Brand Ranch, SJC agrees that the Revised Maintenance Access Trail Easement as provided for in the Water Agreement shall never be improved with any surface other than natural brown-colored decomposed granite with railroad ties imbedded at an angle to direct water off of the trail surface and that the Revised Maintenance Access Trail Easement area shall be graded and the waterline installed in a way to blend with the natural slopes. 2. Building Walls & Structures. a) The walls of all building structures within PM 93-129 shall be constructed with earth-tone colors as viewed from SJC. Earth-toned colors generally mean a color scheme emulating the color palette found in dirt, rock, and plant material that are endemic to the area and to a California coastal setting. b) The roof colors shall be earth-tone colors which include muted or toned down shades of red, green, grey and brown, and specifically excludes blue. Gladding McBean No. 8 mix clay tile set in grey mortar and Vermont red slate roofs are examples of muted shades of red roofs. 3. "V" Ditches and Down Drains. V Ditches within PM 93-129 shall be earth-toned in color with surrounding landscaping to ensure there is no or absolute minimum visual impact from the San Juan Capistrano valley. Down drains shall be in underground pipes to eliminate visual impact from SJC. 4. Retaining Walls. Retaining walls within PM 93-129 shall be earth-tone in color, which shall include but not be limited to retaining walls made out of large beach stones, similar to the ones found within Bear Brand Ranch Community. S. Tennis/Sports Court Lighting. The lighting for a tennis/sports court constructed within PM 93- 129 shall be shielded and directed so that light is only projected on the tennis/sport court surface. Further, tennis/sports court lights shall be equipped with a timer so that they automatically turn off after a maximum of 1 hour per the existing Laguna Niguel Municipal Code, no lighting or playing of tennis shall be allowed between 10:00pm and 7:30am. 6. LN Notice. LN agrees to provide SJC with notice of any future discretionary approvals involving PM 93-129 relating to build-out of PM 93-129 or any proposed modification to PM 93-129. 7. Equestrian Trail Connection. SJC agrees to investigate and if reasonably possible cause the hiking and equestrian trail between the estate lots located at 31541 Peppertree Bend, San Juan Capistrano 3 376738.2 and 31531 Peppertree Bend, San-luan Capistrano and legally establishec'Ay Easement Deed recorded May 11, 1982 in the Official Records of the County of Orange as Document # 82-161967 to be reestablished as part of SJC's trail system, resulting in a connection of the Peppertree Bend Hiking and Equestrian Trail within SJC to the O Hill Ridge Trail System within LN. 8. Landscaninn. SJC has reviewed the preliminary landscape plan for PM 93-129 which has been approved by LN, Orange County Fire Authority and the United States Fish & Wildlife Service ("Landscape Plan'). a) No additional palm trees shall be added to the Landscape Plan; however, a future home owner of one of the four estate parcels within PM 93-129 shall be allowed to plat palm trees in close proximity to their home all of which are located on the hillside substantially below the ridgeline. b) Within OCFA and USFWS parameters, landscaping along the southern property line which abuts the existing property shall include an informal linear transition zone to naturally blend into the existing vegetation in order to minimize sharp visual demarcations 9. Binding Agreement; Bindins on Successors. a) 93-129 LTD shall cause this Agreement to be recorded against PM 93-129 and the Agreement shall run with the lad. Within seven (7) days of recordation, 93-129 LTD shall mail a copy of the fully executed and recorded Agreement to SJC. b) This Agreement is binding on the Parties and enforceable against each of the Parties in accordance with the terms and conditions set forth herein. The terms and conditions herein contained shall be binding upon and inure to the benefit of any heirs,successors and assigns of the Parties. 10. Arbitration of Disputes. ALL DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY SUBMISSION TO ARBITRATION AT THE ORANGE COUNTY OFFICES OF JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. ("JAMS") FOR BINDING ARBITRATION. THE PARTIES MAY AGREE ON A RETIRED JUDGE FROM THE JAMS PANEL. IF THEY ARE UNABLE TO AGREE, JAMS WILL PROVIDE A LIST OF THREE AVAILABLE JUDGES AND EACH PARTY MAY STRIKE ONE. THE REMAINING JUDGE WILL SERVE AS THE ARBITRATOR AT THE ARBITRATION HEARING. THE PARTIES AGREE THAT ARBITRATION MUST BE INITIATED WITHIN ONE YEAR AFTER THE CLAIMED BREACH OCCURRED AND THAT THE FAILURE TO INITIATE ARBITRATION WITHIN THE ONE-YEAR PERIOD CONSTITUTES AN ABSOLUTE BAR TO THE INSTITUTION OF ANY NEW PROCEEDINGS. THE AGGRIEVED PARTY CAN INITIATE ARBITRATION BY SENDING WRITTEN NOTICE OF AN INTENTION TO ARBITRATE BY REGISTERED OR CERTIFIED MAIL TO THE OTHER PARTY AND TO JAMS. THE 4 576736.2 • NOTICE MUST CONTAIN A DESCRIPTION OF THE DISPUTE, 7i`Ilk AMOUNT INVOLVED, AND THE REMEDY SOUGHT. IF AND WHEN A DEMAND FOR ARBITRATION IS MADE BY EITHER PARTY, THE PARTIES AGREE TO EXECUTE A SUBMISSION AGREEMENT, PROVIDED BY JAMS, SETTING FORTH THE RIGHTS OF THE PARTIES IF THE CASE IS ARBITRATED AND THE RULES AND PROCEDURES TO BE FOLLOWED AT THE ARBITRATION HEARING. NOTWITHSTANDING THE ABOVE, AT LEAST TWO WEEKS PRIOR TO THE ARBITRATION, EACH PARTY MUST MAKE A FULL DISCLOSURE TO THE OTHER PARTY OF (i) ALL DOCUMENTS TO BE PRESENTED BY SUCH PARTY AND (ii)ANY WITNESSES TO BE CALLED BY SUCH PARTY. NOTHING IN THIS PARAGRAPH SHALL IN ANY WAY LIMIT OR OTHERWISE RESTRICT A PARTY'S RIGHT OR ABILITY TO OBTAIN INJUNCTIVE RELIEF THROUGH THE COURT SYSTEM. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, EXCEPT AS PROVIDED HEREIN, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PRO V TO NEUTRAL ARBITRATION. Si LN: 93-129 LTD: 11. Cost of Enfor ement. In any action between the Parties seeking enforcement of any of the terms and provisions of this Agreement, or otherwise arising in connection with this Agreement, the prevailing Party in such action shall be awarded, in addition to damages, injunctive or other relief, reasonable attorneys' fees, costs of arbitration and court costs if any. 12. Independent Advice and Investigations. Each Party represents and warrants that it has received independent legal advice from its attorneys with respect to the execution of this Agreement and that it has read this Agreement and understands its contents. Each Party represents and warrants that it has made such investigation of the facts pertaining to the settlement set forth in this Agreement and of all matters pertaining thereto as it is independently deemed necessary and appropriate. Each Party further represents 5 376736.2 and warrants that it has relied sol*eupon facts obtained from its own inve ligations and upon the advice of its own attorneys and legal representatives in executing this Agreement and that it has not relied upon any statement or representation of any other Party or their attorneys or representatives. 13. Severability. In the event any part of this Agreement should be found invalid, unenforceable, or nonbinding,the remaining portion will remain in force and fully binding. 14. Authority to Sign. The signatory of this Agreement on behalf of 93-129 LTD and the signatories of the Agreement on behalf of SJC and LN each represents that he or she has the authority to sign this Agreement on behalf of that party. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CITY OF rN rJ�,N CAPISTRANO CITY OF LAGUNA NIGUEL By: By: Joe otPaul Glaab, Mayor A S ATTEST: By: J By: ean rity Cle Pam Lawrence, City Clerk APP OVED AS O FO APPROVED AS TO FORM B By: mar San o al, City Attorney Terry E. Dixon, City Attorney 93-129 LTD By: Hal M. Sears, General Partner APPROVED AS TO FORM By: William R. Devine, Esq. 6 576738.2 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814& Civil Code 118 1) On May 21,2008,before me,Margaret R.Monahan,City Clerk,personally appeared Joe Soto Mayor, who proved to me on the basis of satisfactory evidence to the be person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity,and that by his signature on the instrument the person,or the entity upon behalf of which the person acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) WITNESS my hand and official seal. .,--A ��1 V4 (2 Cl/L- Marg et . Monahan, City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Officer title SJC &93-129 Agreement Mayor Signers are Representing Date of Document City of San Juan Capistrano . � . ±< . . . \ ; \� g 2: - m2 � ��y < d \ - / Rn. w I � i el ail 9�t. 1 qq� U � 11 n R sq Exhibit B 5167381 Open Space parmu.• igym,� - �-� i / � - - l �' CL Toe of slope CL Edge of flat bench 30' Easement —11' Easement upslope of toe----1-8' mid section of easement11' Easement on downside of slope—i ` 14' flat bench Slope D' d C' "* Slope CL I 1.0'I min CL Bottom of j Q water/ Botlom of scn•cr