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12-0717_SJ LOT 217, LLC_Settlement AgreementSETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the _ day of June 2012 (the "Agreement Date"), and is made and entered into by and between SJ Lot 217, LLC ("Developer") and the City of San Juan Capistrano, a municipal corporation ("City"). Developer and City are sometimes hereinafter referred to collectively as the "Parties" and individually as a "Party." RECITALS A. City owns certain real property known as Lot 217 of Tract 12954, Assessor's Parcel Number 650-592-02 in the City of San Juan Capistrano, California (the "Property"). B. On or about August 1, 2006, City and Centra Realty Corporation ("Centra") entered into a written purchase agreement (the "Purchase Agreement") providing that City would sell, and Centra would buy, pursuant to the terms and conditions of the Purchase Agreement, the Property. C. After entering into the Purchase Agreement in or about 2008, a lawsuit was filed against City by Marbella Development Company asserting it had imposed certain valid and enforceable restrictions on the use of the Property at the time of conveyance to the City. The Marbella litigation was ultimately resolved aflcr the City's appeal by way of a settlement approved by the Court of Appeal that. among other things not relevant here, provided that Marbella would participate to the extent of twenty-five percent of proceeds of any sale of the Property by the City (the "Marbella Participation"), and the use restriction was accordingly terminated. .I..1•21SiO29a?A.lm 11 14-147dt?:106AI ,I? 1 D. Developer represents it is the successor -in -interest to all of Centra's rights under the Purchase Agreement and to the Property, and has been assigned by Centra all claims arising therefrom. E. On December 14, 2011, Developer filed an action in the Superior Court of the County of Orange entitled V Lot 217, LLC it Cine of San Juan Cupisrrano, Orange County Superior Court Case No. 30-2011-00529921 (the "Action"). The Action alleged a number of causes of action arising from or relating to the Property and the Purchase Agreement. F. Without admitting any liability whatsoever, the Parties have determined that it is desirable, and in their mutual best interests, to settle the dispute that is the subject of the Action on the terms and conditions set forth herein. TERMS OF AGREEMENT Based on the foregoing Recitals, which are incorporated into this Agreement by this reference, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both Parties, Developer and City agree as follows: 1. Refund Escrow Deposit. City and Developer hereby agree to release to Developer the Onc-l-iundred-Fifty-Thousand Dollars ($150,000.00) in the Escrow Account for the Property, including any interest actually earned thereon. The Parties shall execute a joint instruction to Escrow directing the release of the funds no later than five (5) business days after receiving a conformed copy of the filed request for dismissal of the Action. 2. City Shall List the Property for Sale. Within twenty (20) business days after execution of this Agreement. City shall enter into a listing agreement for the sale of -z—z•'3srn�azs-n�w3 34447412 W M/12 2 the Property with a reputable licensed real estate broker of its choice on terms acceptable to City in the sole and absolute discretion of City. City may from time to time select a different broker as it deems appropriate. City shall retain sole discretion to determine the listing and sales price of the Property, and whether to accept, reject, or counter any and all purchase overs made on the Property. 3. Developer Participation in Sale Proceeds. If the City receives proceeds from a sale of the Property, Developer shall be entitled to participate in the Net Sales Proceeds, as set forth more fully herein. The "Net Sales Proceeds" shall he defined as the gross sales price for the Property less the Marbella Participation, brokerage fees, customary escrow, closing and title insurance fees. Developer shall be entitled to fifteen percent (15%) of the Net Sales Proceeds. In the event the gross sales price of the Property is below Three Million -One -Hundred= I'wenty-Five Thousand dollars ($3.12,000.00), the Parties agree that Developers participation amount shall be calculated as if the gross sales price was Three Million One Hundred ndred Twenty -Five Thousand dollars ($3,12,000.00). In the event that the gross sales price of the Property exceeds Four Million dollars ($4,000,000.00), the Parties agree that Developer's participation amount shall be calculated as if the gross sales price is Four Million dollars ($4.000,000.00). Notwithstanding the above, for purposes of detennining the Net Sale Proceeds to the Developer, the deduction for any payments for the Marbella Participation shall be based upon the actual amount paid to Marbella Development Company. City shall remit Developer's participation amount within ten (10) business days of City's receipt of'the sales proceeds. WOM 3444743 2 M641K;1? 4. Dismissal with Prejudice. Developer hereby agrees that within two (2) business days after the execution of this Agreement, it shall dismiss the entire Action against the City with prejudice. a. Complete and Final Settlement: No Admission of Fault. Liability. or Damaees. The Parties agree (flat this Agreement shall constitute a complete and final settlement of any and all disputes arising from or relating to the Property, the Purchase Agreement, or the Action. It is understood and agreed that this Agreement is a compromise of disputed claims, and that nothing contained herein shall be deemed or treated as an admission of fault or liability of any kind by either Party. 6. Release. Covenant Not to Sue, and Mutual Indemnitv. Each Party to this Agreement hereby releases, disposes, and forever discharges the other Party, including its officials, officers, managers, partners, directors, trustees, employees, agents, representatives, attorneys, insurers, successors, and assigns, and each of them (collectively, the "Released Parties") from and against any and all claims, complaints, demands, causes of action, obligations, damages, costs, expenses. liens, attorneys' fees, warranties, rights and liabilities of any nature whatsoever, whether known or unknown, suspected or not suspected to exist, claimed or not claimed, that have arisen in connection with the Property, the Purchase Agreement or the Action (collectively, the "Released Claims"), and each Party covenants not to institute or maintain any administrative or judicial proceeding against any of the Released Parties with respect to any of the Released Claims; provided, however, that the Released Claims do not include any of the obligations arising out of this Agreement or obligations that this Agreement expressly provides shall survive the execution and delivery of this Agreement. -4.4.23 5,0194 UAW! 144474t 2:dle OP12 To the full extent of the foregoing release of the Released Claims, each Party also expressly waives all "unknown claims" as against the Released Parties and expressly waives its rights under Civil Code Section 1542, which reads 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. Each Party hereby completely and unequivocally waives as against each of the Released Parties the provisions of Civil Code Section 1542 as it applies to the Released Claims. in this regard, each Party.acknowledges that it may hereafter discover facts different from or in addition to those facts which it now believes to be true with respect to the Released Claims, and the foregoing release shall be, and remain, effective in all respects notwithstanding any such additional or different facts or said Party's belated discovery thereof. Except as may be expressly set forth herein, neither Party nor any of its agents has made any statement, promise, or representation to the other Party regarding any fact relied upon by the other Party in entering into this Agreement, and each Party expressly acknowledges that it is not relying upon any such statement, promise, or representation in entering into this Agreement. Each Party has made such investigation of the facts pertaining to this Agreement, and of all other matters pertaining hereto as it deems necessary. Each Party (herein, the "Indemnitor') agrees to indemnih,, defend, and hold harmless the other Party and the Released Parties affiliated with the other Party (herein, the '`Indemnitees") from and against any and all claims, liabilities, and losses for any type id.U11d1: n116;11%/12 5 of damage whatever arising out of any administrative action, arbitration or mediation proceeding, or litigation pled against the Indemnitee(s) as a result of the Indemnitor's breach of any of its obligations set forth herein, including without limitation a breach of' any of the Indemnitor's representations and warranties set forth in Section 8(a). 7. Delivery of Release From Centra. Developer shall deliver concurrently with execution of this Abreement a fully executed Consent and Release from Centra unconditionally releasing City and its Released Parties from any and all claims arising from or relating to the Property, the Purchase Agreement, or the Action and consenting to the release of the escrowed funds to Developer. The Consent and Release shall be substantially in the form attached hereto as Exhibit '`A". 8. Miscellaneous. A. In entering into this Agreement. each Party represents and warrants to the other Party that: (i) it is the owner of all of the rights attributed to such Party in this Agreement, and it has not assigned, transferred, or encumbered any of such rights to any third party; (ii) it has the authority to enter into and perform its obligations set forth in this Agreement: (iii) it has taken all actions necessary to approve and execute this Agreement, and no approvals of any third party are required to make this Agreement binding and enforceable upon such Party; (iv) the person(s) executing this Agreement on behalf of such Party is (are) duly authorized to do so, and no other person's signature is required to make this Agreement binding and enforceable upon such Party; (v) such Party's entering into and performing its obligations set forth in this Agreement will not constitute a breach or default by such Party of its obligations to any third party; (vi) this Agreement is binding and enforceable against such Party except to the extent of 4-6'23 028429.00 3 34-11743.110008112 6 limitations on creditor's rights due to general law, bankruptcy or insolvency, and/or the equitable powers of the courts; (vii) such Party is not insolvent, and is not the subject of any voluntary or involuntary bankruptcy petition; and (viii) such Party has read all of the terms of this Agreement, it understands and voluntarily accepts the terms of this Agreement, and it has discussed the terms and conditions- of this Agreement with its attorney or has had a full and fair opportunity to do so, and has voluntarily elected to forego the advice of legal counsel. B. This Agreement shall be interpreted in a fair and objective manner, based on the terms and conditions set forth herein. The Parties have participated jointly in the negotiation and drafting of this Agreement. in the event ofa. dispute arising out of the interpretation or enforcement of this Agreement, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions of this Agreement. C. This Agreement sets forth the entire understanding of the Parties in connection with the subject matter addressed herein. Neither Party has made any statement, representation, or warranty in connection with this Agreement that has been an inducement for the other Party to enter into this Agreement, except as may be expressly set forth in this Agreement. It is expressly understood and agreed that this Agreement may not be altered, amended, modified, or otherwise changed in any respect whatsoever except by a writing duly executed by authorized representatives of the Parties hereto. The Parties agree that they will make no claim at any time or place that this Agreement .7-7-235.028424 DOM 3.144743 2 A6,081I2 7 has been orally altered or modified or otherwise changed by oral communication of any kind or character. U. Each Party shall bear its own attorney fees and costs arising from the negotiation, drafting, execution, and performance of this Agreement. E. This Agreement shall be governed by the internal laws of the State of California, without regard to conflicts of law principles. Venue for any lawsuit arising out of this Agreement shall be the County of Orange. P. in the event any portion of this Agreement is deemed to be unenforceable, or is in conflict with applicable law, the remainder of this Agreement shall be enforced and shall remain in full force and effect, unless the unenforceable portion is a material consideration to a Party to this Agreement. G. Either Party to this Agreement may enforce this Agreement by filing a motion pursuant to Code of Civil Procedure Section 664.6 or under any other procedure permitted by law. 1-1. Except to the extent that the release and indemnity provisions set forth in Section 6 of this Agreement expressly benefit certain designated persons, nothing in this Agreement shall be construed to create any third party beneficiary rights. 1. Each Party agrees to cooperate fully, and to execute any and all documents, and to take all additional actions that may be necessary or reasonably appropriate to give lull force and effect to the basic terms and intent of this Agreement, and which are not inconsistent with its terms. 144-174., 2 a hAIX112 8 'This .Aercemem may be executed in one or more counlerpuns. each or which shall be deemed an original but all of which umether shall constitute one -aid the same instnuncm. K. 'chis Agreement shall be binding upon and inure to the henelit of the I'aniL, heram and their ruapeclise successors and assigns. DA HIM: hue H . 2012 11 Im I IiU: la�_—. 2o12 SI Ld71'217. LLC I it MY ' SAN .Il1AN CAMS KANO Bp: Lam,' er Mayor - RELEASE A. The City of San .luau Capistrano (hereinafter "Cite") wwris certain real property known as Lot 217 of Trttct 12954. Assessor's Parcel Dumber 650-592-02 in the City of Sun Ju;tn Capistrano. Catiiornia (the "Property''). B. On or about August 1. 2006. Centra Realty Corporation (hereinafter "Centra") entered into a %witten purchase agreement (the "Purchase Agreement") with City providing that City would sell, and Centra would buy, pursuant to the terms and conditions of the Purchase Agreement, the Property. C. After entering into the Purchase Agreement in or about 3008, a lawsuit was pled against City by lylarbella Development Company asserting it had imposed certain valid and enforceable restrictions on the use of the Property at the time of conveyance to the City. The .Marbella litigation wits ultimately resolved aiier the City's appeal by tvay ol'a settlement approved by the Cours of Appeal. 1). On or about December 14, 2011. C'ontra's stiucessor-i n- interest S.1 Lot 217 filed an action in the Sup;.rior Court of the County of Orange entitled .10 Lot 217, LLC v. C'iry of Sit?t Jturrr r,,,,,,., tranco. Orange: County Superior Court Case No. 30-2011-00529921 (the Action"). The Action alleged a number of causes of action arising from or relating to the Properiy told the Purchase Agreement. 1:.. Contra's successor-in-interoi SJ 1-ot 217 and City have reached a settlement of the :fiction. and as a condition of the settlement is to provide this Release by CC11 .t. NOW. THERE -1:011F. Centra. for itself. its partn:•rs, members, constituent entities (if .env), and their respective successors and assiuns does Hereby forever release, discharge and acquit City. (including its City Council, elected officials, officers. employees, boards. constituent entities (if any). and their respective successors and assigtls), of and from anv and all claints. demands. obligations. liabilities, indebtedness. breaches of contract. breaches of ditty or any relationship, acts. omissions, misfeasance. malfeasance, cause or causes of action, judgments. debts. controversies. dantages. costs. lasses and expenses. of even type. kind. nature, description or character. and irrespective of how. why, or by reason of what facts. whether heretolitre or now existing,. or which could. might or may now or hereafter be claimed to exist. of'whatever kind. naive or nature. whether known or unknown. past or present. latent or patent, suspected *or unsuspected, anticipated or unanticipated, each as though fully set forth herein at length. which in any \say arise out of. are connected with or relate to any matter or event described in the Action, including but not limited to, any- claims related to the Purchase Agreement and the Property (collectiveh. the "Released Matters-"). Centra her;:b,. aurees, represents and warrants that it realizes and ackno\\Iedues that :'actual matters nov. unknown to it may have given or nuty hereafier rive rise to causes of action. cfairns. demands. debts. c'untroversies, damages. costs, losses and expenses which are presctltly rmkno«n unanticipated and unsuspected, and it further agrees. represents and warrants that this Release has been necotiated and agreed upon in light of that realization. and that it nevertheless hereby intends to release. discharge and acquit the City (and those persons and entities defined above as part of the City from ant• and all such unknown causes of action. claims, demands, debts. controversies, damages. costs. losses and expenses which in an} wuy arise out o1. arc connected with, or relate to. the Released Matters. In furtherance of this intention. Centra express!% waives any and all rights conferred upon it by applicable iavv .old expressly consents that this Release shall be ,given full force and effect according to each and all of its express terms and provisions. Centra further waives California Civil Code Seetion 1 42. (and any similar ptcrvisi011 of federal lave which provides to the same effect) which substantially provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS Ott HER FAVOR AT THE TIMF OF EXECUTING 'CHF RELEASE, WHICH IF KNOWN BY HINT OR HER MUST HAVE'NIATERIALLY AFFECTED HIS SETTLEMENT wiTH,rHE DEBTOR" (;cntra hereby understands and acknowledges the significance and consequences of such release and specific waiver and Inas been advised by independent legal counsel concerning the sante. It is hereh\- understood and agreed that the acceptance or delivery of this Release by any Party ,hall not be deemed or construed as an admission ofliability by any Part' released by the terms hereof: and each such Pam' hereby expressly denies liability of any nature whatsoever arising from or relined to the subject oftitis Release. ('entra licreby acknowledges. represents and warrants that it has hail 'advice of counsel of its o,,\Il choosing in negotiations for and the preparation of this Release. that it has read this Release or has had the same read to it by its counsel, that it has had the within Release fulh explained by such counsel. and that it is fuily aware of its contents and legal effcct. "Centra Realty Corporation" CENTRA REALTY CORPORATION, a California corporation By: _ P _ �` - - -- - - Print Name,n: ge Peterson Title: President Date; 1-12-201'