22_1207_TOKIO MARINE SPECIALTY INSURANCE COMPANY_Settlement Agreement and Mutual ReleaseSETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and entered into
as of December 7, 2022 ("Effective Date") by and between CITY OF SAN JUAN
CAPISTRANO ("City"), TOKIO MARINE SPECIALTY INSURANCE COMPANY ("Tokio
Marine"), and BLENHEIM FACILITY MANAGEMENT, LLC ("BFM") and ACTION SPORTS
MANAGEMENT GROUP, LLC D/B/A THE RIDLAND GROUP ("Action Sports"). The term
"Parties" as used in this Agreement shall collectively refer to City, Tokio Marine, and BFM and
Action Sports. This Agreement is made with reference to the following facts:
RECITALS
A. On April 3, 2019, City filed a civil action entitled City of San Juan Capistrano v.
Tokio Marine Specialty Insurance Company et al., Superior Court of California,
County of Orange, Case No. 30-2019-01061811-CU-IC-CJC, asserting numerous
claims and allegations against Tokio Marine and BFM (the "Lawsuit").
B. On October 21, 2019, Tokio Marine generally denied the allegations in the Lawsuit,
and raised separate claims and allegations against BFM in its Cross -Complaint
("Cross -Complaint").
C. On July 1, 2022, Tokio Marine filed a motion for leave to file a First Amended
Cross -Complaint, pursuant to which it seeks to add Action Sports as a party based
upon the claims and allegations more fully set forth in Tokio Marine's proposed
First Amended Cross -Complaint ("Proposed FACC"). The Proposed FACC was
subsequently continued pursuant to joint stipulation of the Parties.
D. The Parties have agreed to settle their disputes set forth in the Lawsuit, including
all claims that were raised or could have been raised in the Lawsuit, Cross -
Complaint, and Proposed FACC and to release each other and their respective
employees, agents, attorneys, family members and attorneys from all claims, suits,
debts, damages and liability of any nature, direct or indirect, now known or later
discovered, arising from the Lawsuit.
E. It is the intention of the Parties that this Agreement constitutes a full and final
settlement of the Lawsuit, subject to the terms set forth herein.
NOW, THEREFORE, based upon the foregoing recitals, which are incorporated herein
by this reference as though set forth in full, and for valuable consideration the receipt and adequacy
of which is hereby acknowledged, it is agreed by and between the Parties hereto as follows:
Settlement Payment
Within thirty (30) days following the Effective Date, Tokio Marine shall pay City the sum
of $1,200,000.00 (the "Settlement Payment"). The Settlement Payment shall be made via check,
following provision by City to Tokio of City's payee information and tax identification number.
2. Rancho Mission Viejo Riding Park at San Juan Capistrano: Lease and Improvements
(a) BFM or identified successor (referenced infra as "Concessionaire") will negotiate
in good faith with City for a mutually acceptable leasehold of the Rancho Mission Viejo Riding
Park ("Park"). The leasehold shall include the following terms: (i) a term of between 20 and 30
years; and (ii) provisions obligating Concessionaire to assume responsibility for certain
Concentrated Animal Feeding Operations ("CAFO") expenses required to operate the Park as an
equestrian facility (including consultative and investigative work, capital improvements and
projects, coordination with local and regional agencies, permitting, monitoring and cooperation
with City permitting and monitoring obligations), in an amount not to exceed $8 million in total
participation over the resulting Park leasehold.
(b) Concessionaire will work directly with Orange County Coastkeeper
("Coastkeeper") on behalf of the City to obtain the necessary extensions of the current deadlines
imposed by the Consent Decree, dated November 13, 2018, that was entered in the action entitled
Orange County Coastkeeper v. City of San Juan Capistrano et al., United States District Court,
Central District of California, Case No. 8:17-cv-00956-JLS-DFM, including necessary petitions
to the Department of Justice ("Consent Decree"). City's cooperation is a prerequisite to this
provision, and Concessionaire's agreed coordination with Coastkeeper does not relieve City of its
obligations as the Park owner, or the terms of the Consent Decree, and cannot be interpreted as
Concessionaire's agreement to intervene, indemnify or supplant City's exclusive responsibility for
these obligations.
(c) City will cooperate with all permit requirements and coordinate efforts with
Concessionaire to affect the permitting, monitoring, best management practices (as defined by
federal and state law, Code or Consent Decree), easement issues with prior landowner and public
agencies, and infrastructure improvements.
3. Release and Dismissal
(a) Excluding any breach of this Agreement, the Parties hereby release and discharge
one another and their respective officers, directors, trustees, shareholders, spouses, heirs,
executors, administrators, attorneys, successors, assigns, principals, agents, servants, employees,
consultants, representatives, parents, owners, brokers, affiliates, subsidiaries, and related entities
and each of them from any and all claims, lawsuits, demands, debts, liabilities, remedies, damages,
accounts, costs, expenses (including attorneys' fees), liens, actions, and causes of action of every
kind and nature, whether known or unknown, suspected or unsuspected, that they now own or
hold, or at any time heretofore have owned or held, up through the Effective Date, and that arise
from or relate to the claims and allegations pled in the Lawsuit, the Cross -Complaint and/or the
Proposed FACC, or which could have been raised in the Lawsuit, the Cross -Complaint and/or the
Proposed FACC.
(b) It is the intention of the Parties that the release entered into as part of this Agreement
shall be effective as a bar to all stated actions, causes of action, obligations, costs, expenses,
attorney's fees, damages, losses, claims, liabilities, and demands of any character, nature, and kind,
known or unknown, suspected or unsuspected, to be so barred, in furtherance of which intention
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the Parties expressly waive any and all right and benefit conferred upon them by the provisions of
Section 1542 of the California Civil Code, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE
AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
(c) The Parties hereby acknowledge that the foregoing waiver of the provisions of
Section 1542 of the California Civil Code was bargained for separately. The Parties hereto
expressly agree that the release provisions herein contained shall be given full force and effect in
accordance with each and all of their express terms and provisions, including but not limited to
those terms and provisions relating to unknown or unsuspected claims, demands, and causes of
action hereinafter specified. The Parties specifically agree to assume the risk of the subsequent
discovery or understanding of any matter, fact, or law which, if now known or understood, would
in any respect have affected this Agreement.
(d) Within three (3) business days following full execution of this Agreement, City
shall file a Notice of Settlement of Entire Case (Form CM -200). The Notice of Settlement shall
provide that the settlement is conditional, and that a request for dismissal shall be filed no later
than thirty (30) days following the Effective Date.
(e) Within three (3) business days following City's receipt of the Settlement Payment,
City and Tokio Marine shall execute and file a Request for Dismissal (Form CIV -110), requesting
the Court dismiss the entire action of all Parties and all causes of action with prejudice.
4. Enforcement by Code of Civil Procedure § 664.6; Retention of Jurisdiction
In the event of a breach of this Agreement, the non -breaching Party may seek entry of
judgment pursuant to California Code of Civil Procedure § 664.6. The Parties agree that the
Orange County Superior Court shall retain jurisdiction to enforce this Agreement and to enter
judgment against a breaching Party through a motion brought pursuant to Code of Civil Procedure
§ 664.6.
Attorney's Fees and Costs
(a) The Parties hereto shall bear their own attorney's fees, expenses, and costs incurred
in connection with the Lawsuit and this Agreement.
(b) If any action is necessary to enforce the terms of this Agreement, the prevailing
Party shall be entitled to recover its reasonable attorney's fees and costs associated with any motion
to enforce this Agreement or any action arising from the breach of this Agreement.
61147.20022\40865255.1
6. Representations and Warranties
The Parties, and each of them, represent and warrant that there has been no assignment or
other transfer of any interest in any of the claims which are being released hereunder, and that no
person or entity other than the Parties hereto has or have any interest or claim against any of the
other Parties regarding the released claims above. The Parties, and each of them, further represent
and warrant that they will not seek to assign or transfer any interest in any of the claims which are
being released hereunder. The City further represents and warrants that it has not assigned and
will not seek to assign any interest it has or may have in the Tokio Marine policy at issue in the
Lawsuit to any third party. Each of the terms of this Agreement is binding upon each of the Parties
and its respective predecessors, assigns, executors, administrators, representatives, principals,
insurers, agents, and successors -in -interest.
7. Amendments and Modifications
This Agreement may only be amended or modified through a writing executed by the
Parties.
8. Consultation With Counsel
The Parties, and each of them, represent and declare that they have carefully read this
Agreement and known and understand its contents of, and have had the advice of counsel regarding
the same (or ample opportunity to consult with counsel of their choosing), and that they sign the
same freely and voluntarily.
9. Neutral Interpretation
The language of this Agreement shall be construed as a whole according to its fair meaning
and not strictly for or against any Party.
10. Confidentiality
The Parties agree that the existence of this Agreement, and its terms and conditions, are to
be held in strict confidence. Therefore, the Parties agree not to disclose, or allow the disclosure
of, or discuss the existence of this Agreement and/or its terms or conditions with any individual or
entity, except their attorneys, financial advisors, and accounts, unless: (i) compelled to do so as a
matter of law; (ii) on a strict need -to -know basis only to the extent absolutely necessary to further
a specific and legitimate accounting, auditing, or regulatory requirement; or (iii) disclosure is
reasonably necessary to enforce this Agreement. Additionally, City may disclose this Agreement
and/or its terms to the extent it is required to do so in order to comply with the Freedom of
Information Act, the California Public Records Act or any other similar law, rule or regulation.
Upon inquiry, the Parties shall state "the matter has been resolved" or words to this effect.
11. No Admission Of Liability
In entering into this Settlement Agreement, none of the Parties are admitting the sufficiency
of any of the claims, allegations, assertions, contentions or positions of any other party, nor the
sufficiency of the defense to any such claims, allegations, assertions, contentions or positions set
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forth in this Lawsuit, the Cross -Complaint or the Proposed FACC. This Settlement Agreement is
executed by each of the parties for the sole purpose of compromising and settling their respective
claims against the other.
12. Complete Agreement
This Agreement constitutes the entire agreement and understanding between the Parties
concerning the subject matter of this Agreement, and supersedes and replaces all prior negotiations
and proposed agreements, written and/or oral, regarding such subject matter. Each Party
acknowledges to each of the other Parties that no party or agent or any attorney of any Party has
made any promise, representation, or warranty whatsoever, express or implied, written or oral, not
contained herein concerning the subject matter hereof to induce it to execute this Agreement, and
each Party acknowledges that it has not executed this Agreement in reliance upon any promise,
representation, or warranty not contained herein.
13. Applicable Law, Jurisdiction, and Venue
This Agreement shall, in all respects, be interpreted, enforced, and governed exclusively
by and under the laws of the State of California. Any legal action or proceeding concerning this
Agreement shall be filed and prosecuted in the County of Orange, California.
14. Severability
If any portion of this Agreement is declared by a court of competent jurisdiction to be
invalid, illegal, unconstitutional, or unenforceable, such portion shall be deemed severed from this
Agreement and the remaining parts shall remain in full force and effect as if no invalid or
unenforceable provisions had been part of this Agreement.
15. Covenant to Take Further Actions Necessary
The Parties hereby agree to execute such other documents and to take such other actions
as may be reasonably necessary to further the purposes of this Agreement, with the Parties to bear
their own costs and attorney's fees for these additional actions.
16. No Third Party Beneficiaries
Except for the rights of beneficiaries pursuant to the releases provided herein, there are no
third -party beneficiaries to this Agreement, and nothing herein shall confer any enforceable rights
on non -signatory persons or entities.
17. Counterparts; Individuals Authorized
This Agreement may be executed in one or more counterparts, any one of which shall be
binding on any Party signing thereon. Photocopies, facsimiles, and scanned original documents
shall be deemed originals and shall be valid, binding, and enforceable in accordance with their
terms. Individuals signing on behalf of entities represent and warrant that they are authorized to
sign on behalf of the entity and that their signature binds the entity to the Agreement.
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SIGNATURE PAGE TO
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
I have read the foregoing Agreement, understand it, and I accept and agree to the
provisions it contains and hereby execute it voluntarily with full understanding of its
consequences and to be bound by its terms.
CITY OF SAN JUAN CAPISTRANO APPROVED AS TO LEGAL FORM:
Benjamin Siegel, City Manager
Date:
TOKIO MARINE SPECIALTY
INSURANCE COMPANY
By: Elisa R. Rombach
Its: Claim Supervisor
Date: 12/6/22
BLENHEIM FACILITY MANAGEMENT,
LLC
By. Alexis S. Gutierrez, Esq.
Its: Attorney
Date: December 6, 2022
ACTION SPORTS MANAGEMENT
GROUP, LLC D/B/A THE RIDLAND
GROUP
By: Alexis S. Gutierrez, Esq.
Its: Attorney
Date: December 7, 2022
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61147.20022\40865255.1
Jeffrey S. Ballinger, City Attorney
ATTEST:
Maria Morris, City Clerk
By: Z8 Atx,�441i
Its: Claim Supervisor
Date: 12/6/22
By: /
Its: Attorney
Date: December 6, 2022
By: /
Its: Attorney
Date: December 7, 2022
SIGNATURE PAGE TO
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
I have read the foregoing Agreement, understand it, and I accept and agree to the
provisions it contains and hereby execute it voluntarily with full understanding of its
consequences and to be bound by its terms.
CITY OF SAN JUAN CAPIS NO
4L
njami ie , Cityl pager
Date: /2-4(-.2Z
TOKIO MARINE SPECIALTY
INSURANCE COMPANY
By: Elisa R. Rombach
Its: Claim Supervisor
Date: 12/6/22
BLENHEIM FACILITY MANAGEMENT,
LLC
By: _
Its: _
Date:
ACTION SPORTS MANAGEMENT
GROUP, LLC D/B/A THE RIDLAND
GROUP
By: _
Its: _
Date:
6
61147.20022\40865255.1
APPROVED AS TO LEGAL FORM:
,e -3c:�i,
Jeffrey,SnBallinger, City Attorney
A'
erk
By: C& -a' lie
Its: Claim srLparvinnr
Date: 12/6/22
By: _
Its: _
Date:
By: _
Its: _
Date: