Resolution Number 07-10-02-02RESOLUTION NO. 07-10-02-02
' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, APPROVING A TERMINATION AND
SETTLEMENT AGREEMENT AND MUTUAL RELEASES AND TAKING
OTHER ACTIONS RELATING TO COST APPORTIONMENT
OBLIGATIONS FOR CERTAIN DESIGNATED OFF-SITE WORK FOR
AREA C -LOS SAN JUAN PLANNED COMMUNITY(TRACT 13436)
Whereas, the City Council has considered the approval of a Termination and
Settlement Agreement and Mutual Release (the "Termination and Settlement
Agreement") dated as of October 2, 2007 terminating a Construction Cost
Apportionment and Reimbursement Agreement (the "Cost Apportionment Agreement")
dated July 10, 1991 between the City of San Juan Capistrano and the Lusk Company
based upon changed circumstances; and
Whereas, a certain designated off-site bridge work obligation describe in the Cost
Apportionment Agreement and referenced in Resolution No. 89-6-6-6, titled "Approving
Area Plan/Composite Development Plan — Glenfed Planned Community Area C" (a
certified copy of which is attached), as amended pursuant to CC Resolution No. 95-2-7-
' 3 adopted on February 7, 1995, pursuant to which the City Council approved the Area
Plan/Composite Development Plan (the "Development Plan") for the Lomas San Juan
Planned Community, is no longer practically feasible based upon changed
circumstances.
Now Therefore, Be It Resolved, that:
1. The City Council hereby approves the Termination and Settlement
Agreement attached hereto as Exhibit "1" and incorporated herein by reference and
hereby authorizes the Mayor to execute the same on behalf of the City.
2. The Cost Apportionment Agreement is hereby terminated in accordance
with Section 2 of the Agreement and has no further force or effect.
3. The City Council does hereby repeal Section 8g of the Development Plan
and affirms that the Development Plan otherwise remains in full force and effect.
4. The City acknowledges and agrees that the City shall have no right
whatsoever to (a) impose any conditions or restrictions on its issuance of any building
permits or certificates of occupancy or other permits or approvals with respect to the
development in accordance with the Development Plan or occupancy of Tract 13436
that relate, either directly or indirectly, in whole or in part, to the improvement, widening,
alteration, modification, maintenance, repair or replacement of the La Novia Bridge or
' (b) withhold or delay the issuance of any such permits or certificates of occupancy in
connection therewith.
Page 1 of 2 10-02-2007
6. This Resolution shall become effective upon the "TWH Payment' (as
defined in the Agreement).
PASSED, APPROVED, AND ADOPTED this 2nd day of October 2007.
MA
ATTEST:
R. Monahan, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano,
do hereby certify that the foregoing Resolution No. 07-10-02-02 was duly adopted by
the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held
the 2nd day of October 2007, by the following vote:
AYES: COUNCIL MEMBERS: Nielsen, Hribar, Uso, Soto and Mayor Allevato
NOES: COUNCIL MEMBER: None
ABSENT: COUNCIL MEMBER: None
R. MONAHAN, City Clerk
Page 2 of 2 10-02-2007
EXHIBIT "1"
I
TERMINATION AND SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This Termination and Settlement Agreement and Mutual Releases
("Agreement"), dated as of October 2, 2007, is entered into by and between the CITY OF
SAN JUAN CAPISTRANO, a California municipal corporation (the "City"), and S. J.
HILLS, a California limited partnership ("S. J. Hills"), and TAYLOR WOODROW
HOMES, INC, a California corporation("TVJH") (the City, S. J. Hills and TWH are
collectively defined herein as the "Parties" and each is individually referred to as a
"Party"), with referince to the following facts:
RECITALS
A. The City has previously approved a residential development project
located in the City and commonly known as the Lomas San Juan Planned Community
(the "Planned Community").
B. S. J. Hills is the current owner of certain real property located within
Tract No. 13436 ("Tract 13436"), which is part of the Planned Community and is also
commonly known as "Area C-2" therein.
C. TWH was the owner and developer of other portions of the Planned
Community, including Tract Nos. 13437 and 13866, also commonly known as "Area D-
1" and "Area D-2".
D. On June 6, 1989, the City Council adopted Resolution No. 89-6-6-6,
titled "Approving Area Plan/Composite Development Plan — Glenfed Planned
Community Area C", as amended pursuant to CC Resolution No. 95-2-7-3 adopted by the
City Council on February 7, 1995 (as amended, the "Development Plan Resolution"),
pursuant to which the City Council approved the Area Plan/Composite Development Plan
(the "Development Plan") for the Planned Community, subject to certain conditions.
Condition No. 8g of the Development Plan Resolution states that, "[p]rior to approval of
final tract map, applicant shall enter into an agreement with the City which will provide
for the construction and method of cost apportionment for La Novia Avenue Bridge over
San Juan Creek."
E. Pursuant to that certain Construction Cost Apportionment and
Reimbursement Agreement (the "Cost Apportionment Agreement") dated July 10, 1991
and July 16, 1991, by and between the City and the Lusk Company, a California
corporation, the prior developer of the Planned Community, and recorded on
September 12, 1991 as Instrument No. 91-496384 in the Official Records of Orange
County, California, Lusk agreed to design, construct and pay a portion of the cost for
certain improvements, including the widening of the existing La Novia Bridge (the
"Bridge") and the related construction of bridge pier protection and a drop structure
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DOCSOC/ 1243254v7/022658-0025
(collectively, the "Bridge Widening Work"). In addition, Section 3 of the Cost
Apportionment Agreement provides that the Bridge Widening Work must be completed
prior to the issuance of certificates of occupancy for the remaining 50% of the last phase
of development of Tracts 13436, 13437, 13865 or 13866, whichever is the last phase (the
"Certificate of Occupancy Condition"). Tract 13436 is the last phase of development in
the Planned Community.
F. All of the work required to be performed under the Cost
Apportionment Agreement has been completed other than the Bridge Widening Work.
G. It is now unclear whether the previously contemplated Bridge
Widening Work is appropriate or feasible.
H. Certain claims, demands and differences have existed heretofore
among the Parties with regard to the continuing purpose, validity or enforceability of the
provisions in the Cost Apportionment Agreement relating to the Bridge Widening Work
and the Certificate of Occupancy Condition and the interpretation of the Certificate of
Occupancy Condition.
I. It is the intention of the Parties to settle and dispose of, fully and
completely, any and all claims, demands and causes of action heretofore arising out of,
connected with or incidental to the Cost Apportionment Agreement and the previously
contemplated Bridge Widening Work.
NOW, THEREFORE, in furtherance of the mutual desires set forth above,
and in consideration of the mutual covenants and conditions set forth below, the Parties
hereby agree as follows:
AGREEMENT
1. TWH Payment. As a condition to the effectiveness of this Agreement,
within five (5) business days following the date on which the City takes the actions set
forth in Section 3, below, TWH shall pay to the City, in the form of a certified check, the
amount of One Hundred Thousand Dollars and No/100ths Dollars ($100,000.00) (the
"TWH Payment"). The City shall provide written confirmation of the TWH Payment to
S.J. Hills' legal counsel promptly following its receipt of such payment.
2. Termination of Cost Apportionment Agreement. The Parties agree that,
effective upon the TWH Payment, the Cost Apportionment Agreement is terminated and
of no further force or effect whatsoever, including without limitation the provisions
relating to the Bridge Widening Work and Certificate of Occupancy Condition, and that
no provision in the Cost Apportionment Agreement shall survive such termination,
notwithstanding any provision therein to the contrary.
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DOCSOC/ ] 243254v7/022658-0025
3. City Actions. The City hereby represents and warrants that, on October 2,
2007, the City Council adopted the resolution attached hereto as Exhibit A and
incorporated herein by reference, the effectiveness of which is conditioned upon the
TWH Payment, pursuant to which the City Council approved (a) the City's execution of
this Agreement, (b) the termination of the Cost Apportionment Agreement in accordance
with Section 2, above, and (c) the deletion of Section 8g of the Development Plan
Resolution and affirmed that the Development Plan remains in full force and effect, as so
modified. The City acknowledges and agrees that, following the TWE Payment, the City
shall have no right whatsoever to (i) impose any conditions or restrictions on its issuance
of any building permits or certificates of occupancy or other permits or approvals with
respect to the development in accordance with the Development Plan or occupancy of
Tract 13436 that relate, either directly or indirectly, in whole or in part, to the
improvement, widening, alteration, modification, maintenance, repair or replacement of
Ole Bridge or (ii) withhold or delay the issuance of any such permits or certificates of
occupancy in connection therewith.
4. Releases. In consideration of the payment specified above and the mutual
releases contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged by each party hereto, the Parties promise, agree and
specifically release as follows:
4.1 Except as to such rights or remedies as may be created by this
Agreement, the City hereby releases, remises and forever discharges S. J. Hills, TWH and
their respective agents, employees, representatives, administrators, attorneys, directors,
officers, board members, divisions, affiliates, parents, partnerships, partners, members,
managers, joint venturers, assigns, heirs and successors in interest, and each of them,
from any and all suits, actions or causes of action, in law or in equity, debts, liens,
contracts, agreements, promises, liabilities, claims, demands, damages, losses, costs or
expenses, of any nature whatsoever, whether known or unknown (collectively, the
"Claims"), heretofore arising out of, connected with or incidental to the Bridge Widening
Work and the Cost Apportionment Agreement (collectively, the "Released Claims").
4.2 Except as to such rights or remedies as may be created by this
Agreement, S. J. Hills hereby forever discharges the City and its agents, employees,
representatives, administrators, attorneys, directors, officers, board members, divisions,
affiliates, parents, partnerships, partners, members, managers, joint venturers, assigns,
heirs and successors in interest, and each of them, from any and all Released Claims.
4.3 Except as to such rights or remedies as may be created by this
Agreement, TWH hereby forever discharges the City and its agents, employees,
representatives, administrators, attorneys, directors, officers, board members, divisions,
affiliates, parents, partnerships, partners, members, managers, joint venturers, assigns,
heirs and successors in interest, and each of them, from any and all Released Claims.
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DOCSOC/1243254v7/022658-0025
4.4 Except as to such rights or remedies as may be created by this
Agreement, TWH and S.J. Hills hereby forever discharge each other and their respective
agents, employees, representatives, administrators, attorneys, directors, officers, board
members, divisions, affiliates, parents, partnerships, partners, members, managers, joint
venturers, assigns, heirs and successors in interest, and each of them, from any and all
Released Claims.
4.5 The Parties acknowledge and agree that the releases in Sections 4.1
through 4.4, above, are expressly limited to Released Claims and do not include any other
Claims of any kind, including without limitation any Claims for breach of this
Agreement.
4.6 With respect to the Released Claims, each Party specifically waives
the benefit of 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 or her favor
at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with
the debtor."
Each Party has been advised by its attorneys of the meaning of Section 1542 of the
California Civil Code, and of the implications of waiving the benefits thereof. The
Parties agree that this waiver is an essential part of this Agreement, which would not have
been entered into without such provision.
5. Representations and Warranties: Each of the Parties represents, warrants
and agrees as to itself as follows:
5.1 Such Party has received independent legal advice from its attorneys
with respect to the advisability of making the settlement provided for herein, and with
respect to the advisability of executing this Agreement.
5.2 Neither such Party nor any officer, agent, employee, representative,
or attorney of or for it has made any statement or representation to any other Party
regarding any fact relied upon in entering into this Agreement, and it is not relying upon
any statement, representation or warranty or promise, written or oral, of any other Party
(or of any officer, agent, employee, representative, or attorney for any other Party) in
executing this Agreement, or in making the settlement provided for herein, except as
expressly stated in this Agreement.
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DOCS OC/ 1243254v7/022658-0025
5.3 Such Party has made such investigation of the facts pertaining to this
settlement and this Agreement and of all the matters pertaining thereto as it deems
necessary.
5.4 Such Party or its responsible officer or attorney has read this
Agreement and understands the contents hereof. Each officer, member, manager, trustee,
official or attorney executing this Agreement on behalf of such Party is empowered to do
so and thereby bind such Party.
5.5 Each as otherwise expressly represented, warranted or provided in
this Agreement, such Party assumes the risks (a) that it may hereafter discover facts in
addition to or contrary to those it believed to exist or relied upon in entering into this
Agreement, (b) that it may have mistakenly understood matters relevant to entering into
this Agreement and (c) that another Party may have negligently misrepresented or
negligently failed to disclose facts in connection with the entering into of this Agreement.
Notwithstanding any such claims of misunderstanding, mistake, negligent
misrepresentation or negligent nondisclosure, such Party intends that this Agreement
thereafter shall continue in full force and effect and shall not be subject to rejection or
rescission for any reason, provided that such Party reserves all rights provided for in this
Agreement.
5.6 It has not heretofore assigned, transferred, or granted, or purported to
assign, transfer, or grant, any of the Released Claims or any part thereof.
5.7 Each term of this Agreement (other than Recitals A through I,
above) is contractual and not merely a recital and each of Recitals A through I, above, is
true and correct.
5.8 Such Party is aware that it may hereafter discover claims or facts in
addition to or different from those it now knows or believes to be true with respect to the
Released Claims. Nevertheless, it is the intention of such Party to fully, finally and
forever settle and release the Released Claims, and all claims relative thereto, which do
now exist, may exist, or heretofore have existed between them. In furtherance of such
intention, the releases given herein shall be and remain in effect as full and complete
mutual releases of the Released Claims, notwithstanding the discovery or existence of
any additional or different claims or facts relative thereto.
5.9 It will execute all such further and additional documents as shall be
reasonable, convenient, necessary or desirable to carry out the provisions of this
Agreement.
6. Settlement. This Agreement effects the settlement of claims, demands, and
conditions which are denied and contested and nothing contained herein shall be
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DOCSOG 1243254v7/022658-0025
construed as an admission by any Party hereto of any liability of any kind to any other
Party.
7. Miscellaneous.
7.1 This Agreement is made and entered into in the State of California,
and the rights and obligations of the parries hereunder shall in all respects be construed
and enforced in accordance with, and governed by, the laws of the State of California.
7.2 It is expressly understood and agreed that this Agreement contains
the entire agreement and understanding of the Parties concerning the Released Claims,
the settlement thereof and the subject matter herein, and merges, supersedes and replaces
all prior discussions, understandings, negotiations, agreements, representations,
conditions, warranties, covenants and all other communications between the Parties
hereto, whether written or oral, relating to the Released Claims.
7.3 No provision herein may be waived unless in writing and signed by
the Party or Parties whose rights are thereby waived. Waiver of any one provision herein
shall not be deemed to be a waiver of any other provision herein. This Agreement may
be modified or amended only by written agreement executed by all of the Parties.
7.4 This Agreement is binding upon and shall inure to the benefit of the
Parties and their respective agents, employees, representatives, administrators, attomeys,
directors, officers, board members, divisions, affiliates, parents, partners, partnerships,
members, managers, joint venturers, assigns, heirs and successors in interest. This
Agreement may be enforced by any Party or its successors and assigns against any other
Party or its successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the Parties or their respective
successors and assigns, any rights or benefits under or by reason of this Agreement.
7.5 Each Party has cooperated in the drafting and preparation of this
Agreement and, accordingly, the normal rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of
this Agreement.
7.6 In the event that any litigation shall be commenced concerning this
Agreement or any the Parties' performance under this Agreement, the prevailing party in
such litigation shall be entitled to recover, in addition to such other relief as may be
granted, its reasonable costs and expenses, including without limitation attorneys' fees
and court costs, whether or not taxable, as awarded by a court of competent jurisdiction.
7.7 The descriptive headings used in this Agreement are for convenience
only and shall not affect the meaning of any provision of this Agreement.
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DOCSOC/ I243254v7/022658-0025
7.8 This Agreement may be executed in counterparts, and when each
Party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original and, when taken together with other signed counterparts, shall
constitute one agreement, which shall be binding upon and effective as to all Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year first above written.
APPROVED AS TO FORM:
SHEPPARD, MULLIN, RICHTER &
HAMPTON LLP
By
Jack H. Rubens
Attorneys for S. J. Hills
APPROVED AS TO FORM:
a
Mark McGuire
Attorney for Taylor Woodrow Homes
"S. J. Hills":
S. J. HILLS, a California limited partnership
By: Pacific Communities Builder, Inc., a
California corporation, its general
partner
WEN
TAYLOR WOODROW HOMES, a
California corporation
0
(Print Name and Title)
I
(SIGNATURES CONTINUED ON NEXT PAGE)
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DOCSOC/ 1243254d//022658-0025
7.8 This Agreement may be executed in counterparts, and when each
Party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original and, when taken together with other signed counterparts, shall
constitute one agreement, which shall be binding upon and effective as to all Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year first above written.
APPROVED AS TO FORM:
SHEPPARD, MULLIN, RICHTER &
HAMPTON LLP
0
Jack H. Rubens
Attorneys for S. J. Hills
APPROVED AS TO FORM:
"S. J. Hills":
S. J. HILLS, a California limited partnership
By: Pacific Communities Builder, Inc., a
California corporation, its general
partner
"T'VM1:
Nelson Chung,
President
- (/,� . TAYLOR WOODROW HOMES, a
By 1/V I`7—�`� California corporation
Mark McGuire
Attorney for Taylor Woodrow Homes By % — 1 l---------
Donald D. Steffensen, Jr.
General Counsel and Secretary
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DOCSOC/1243254v7/022658.0025
APPROVED AS TO FORM:
STRADLING YOCCA CARLSON &
RAUTH .
Jr.
Special Coulrae}fdr City of
San Juan Capistrano
DOCSOC/124325471022658-0025
"City":
CITY OF SAN JUAN CAPISTRANO, a
municipal corporation
W!
Sam Allevato,
Mayor
APPROVED AS TO FORM:
STRADLING YOCCA CARLSON &
RAUTH
10
Thomas P. Clark, Jr.
Special Counsel for City of
San Juan Capistrano
"City":
CITY OF SAN JUAN CAPISTRANO, a
municipal corporation
By
Sam A levato,
Mayor
Clerk
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DOCSOG1243254V7/022658-0025