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HomeMy WebLinkAbout1901 E. FIRST STREET OWNER, LLCA-2017.106 SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS LU ii' This SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS a5 ca n (hereinafter referred to as the "AGREEMENT") is made and entered into by and between the w Q[7 CCa p City of Santa Ana (hereinafter referred to as "City"), and 1901 First Street Owner, LLC L� ("1901"). At times hereinafter, 1901 and the City are collectively referred to herein as "the a -LI � e Parties" and individually as a "Party." RECITALS A. 1901 is the developer of a 264 multi -family apartment development located in the City of Santa Ana ("Project"). B, Following the City's approval of 1901's Project, a dispute arose between the City, 1901, and Tustin Unified School District (the "District") pertaining to the amount of school impact fees due on the Project, and specifically the City's calculation of "assessable space" included within the Project, C. Under Education Code Section 17620, the governing board of any school district is authorized to levy a school impact fee on the "assessable space" of any construction within the boundaries of the district, and the formula for determining "assessable space" is contained in Government Code Section 65995, D. Government Code Section 65995 requires the building dcpartment of the city or county in which the proposed development is located to calculate the square footage of the assessable space included within a proposed development project, and thereafter provide such determination to the applicable school district for the levying of the school impact fee. E. When the City revised its original calculation of assessable space, and determined that the Project included more assessable space than initially stated, 1901 paid the Project's school impact fees based on the increased assessable space to the District under protest, and thereafter filed an appeal under Chapter 3 of. the City's Municipal Code ("Administrative Appeal"). F. A hearing was held by the City's Hearing Officer to consider 1901's appeal, in which the Hearing Office granted 1901's appeal, and directed the District to refund the excess school fees back to 1901. G, Following the District's refusal to refund excess school fees as directed by the Hearing Officer, 1901 filed a petition for writ of mandate and complaint in the Orange County Superior Court (Case No, 30-2015-00803234-CU-WM-CJC), captioned 1901 First Street Owner, LLC v. Tustin Unified School District (the "Action") asserting five (5) causes of action against the District including a petition for writ of mandate, declaratory relief, and three (3) tart claims for economic interference (the "Tort Claims", and cumulatively with all causes of action the "1901 Petition"). The City was named Real Party in Interest in the 1901 Petition. H. The District filed a cross -petition for writ of mandate in the Action challenging the Hearing Officer's decision ("District Petition"), The City was named a Respondent in the District Petition, and 1901 was named Real Party in Interest. I. The District filed a special motion to strike pursuant to California Code of Civil Procedure seeking dismissal of the Tort Claims in the 1901 Petition. Following briefing by the Parties and a hearing, the trial court granted the District's motion and dismissed the Tort Claims by ruling dated December 21, 2015, ("Anti-SLAPP Ruling"). 1901 appealed the Anti-SLAPP Ruling, and the matter is currently pending before Division 3 of the 4th Appellate District of California (Case No. G053201, the "Anti-SLAPP Appeal"). J. Following consolidated briefing and a hearing on the remaining causes of action stated in the 1901 Petition, and all causes of action in the District Petition, on September 12, 2016, the trial court issued a decision and judgment in favor of the District and against 1901 on all causes of action (the "Judgment"). K. 1901 appealed the Judgment, and the matter is currently pending before Division 3 of the 4th Appellate District of California (Case No. G054086, the "Judgment Appeal", and jointly with the "Anti-SLAPP Appeal" simply the "Appeals"). L. On September 21, 2016, 1901 filed a complaint against the City captioned 1901 First Street Owner LLC v. City of Santa Ana (Case No. 30-2016-00876616-CU-CR-CJC) (the "Second Action"). M. The Parties wish to finally settle, resolve, and compromise all disputes and controversies existing between them arising out of and/or relating to, without limitation: (a) the Administrative Appeal; (b) the Action; (c) the Appeals; (d) the Second Action (cumulatively the "Disputes"), and (e) any other facts, claims, demands, or causes of action existing as of the execution date of this AGREEMENT and relating to or arising from the Disputes, whether known or unknown. The Parties wish to avoid incurring the further cost, expense, and disruption that would come with prosecuting and defending the Disputes, and the Parties intend to achieve a full and complete settlement of all issues and claims involving each other relating to and arising from the Disputes. NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants set forth below, the Parties agree as follows: AGREEMENT 1. Recitals. The recitals set forth in paragraphs A through M are true and correct and are hereby fully incorporated by reference into this AGREEMENT. 2. Effective Date. The Effective Date of this AGREEMENT shall be the date on which this AGREEMENT is fully executed by all of the Parties. 3. No Precedent. This AGREEMENT is in no way intended, and shall in no way be construed, to restrict rights guaranteed to the City under local, state, and/or federal law, rule, policy, or agreement, or to establish a precedent or formal policy of the City in this or any other matter, now or in the future. 4. No Admission of Liability. This AGREEMENT shall not in any way be construed as an admission by the City or 1901 of any unlawful or wrongful acts or other liability whatsoever against each other or against any other person. The City and 1901 specifically disclaim any liability to, or wrongful acts against, each other or against any other person on the part of themselves, any related person, or any related predecessor entity or corporation, or its or their agents, representatives, or successors in interest and assigns, in relation to the matters addressed in this AGREEMENT. 5. Settlement Terms. Upon execution of this AGREEMENT, the following terms shall apply: a. Within thirty (30) days of the Effective Date, the City shall make a single, lump sum payment to 1901 in the sum of Four Hundred Thousand and 001100 Dollars ($400,000.00) ("Settlement Amount"). The Settlement Amount may be paid by check or wire transfer to and as requested by 1901. b. The mutual releases and waivers set forth in Paragraph 5 hereof shall become effective immediately upon the Effective Date. Within five (5) days of the Effective Date, 1901 shall execute, sign, process, and file such documentation as is necessary to effectuate dismissals with prejudice, as against the City only, in the: (i) Second Action; (ii) the Appeals, and (iii) the 1901 Petition. C. The Parties agree to cooperate fully in the performance of this AGREEMENT and to execute any and all supplementary documents and take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this AGREEMENT, and that are not inconsistent with the AGREEMENT's terms. d. No Party, including the attorneys for any Party, has made any representations or warranties regarding whether the Settlement Amount is subject to taxation. The City does not bear any responsibility for 1901's tax liability that may arise as a result of the Settlement Amount. 1901 agrees to assume any responsibility for payment of taxes due by 1901 in relation to Settlement Amount. e. 1901 agrees to defend (with counsel reasonably selected by 1901), indemnify, and hold harmless the City From and against any and all claims, debts, liabilities, demands, obligations, costs, expenses, causes of action, fines,. penalties, losses or judgments asserted against the City by any third party, including but not limited to the District, based on or arising out of or in connection with the Disputes, the determination of the Project's assessable space, and/or the amount of school impact fees payable for the Project, regardless of whether such arose prior to or after the Effective Date of this AGREEMENT. Such indemnity obligations shall specifically extend to and include, but are not limited to, 1901's indemnity and defense of the City from and against all claims, causes of action, and matters at issue in the District Petition, the Anti-SLAPP Appeal, and the Judgment Appeal. The Parties' intent is that the City shall have no obligation to 3 participate in the Appeals, and to the extent such participation is required by the Supreme, Appellate or Trial Court, 1901 shall be obligated to indemnify, defend, and hold harmless the City in connection with the same. 1901's defense, indemnity and hold harmless obligation set forth herein shall only extend to costs incurred and imposed, if any, after the Effective Date of this AGREEMENT. f. Within six (6) months of the Effective Date, the Parties agree to meet with interested stakeholders (such as area school districts, developers, chamber of commerce, etc.) to discuss, in good faith the City's application of Government Code section 65995, and specifically the City's methodology regarding the calculation of assessable space. Nothing in this paragraph is intended or shall be interpreted to require the City to adopt or implement any particular method of calculation, including but not limited to that advocated by 1901, in satisfying the City's obligations under section 65995. 6. Mutual Release of All Claims and Potential Claims. The City, on the one hand, and 1901, on the other hand, on their own behalf and on behalf of their respective predecessors and related persons and entities, hereby release and forever discharge the other, from any and all claims, causes of action, and demands relating to or arising from the Disputes that they have or may have against each other (or their predecessors or related entities), as well as their respective present and former officials, council members, board members, directors, employees, heirs, representatives, agents, governing bodies, attorneys, insurers, predecessors -in - interest, successors -in -interest, and assigns, and any and all persons acting by, through, under, or in concert with any of them, except for such claims, causes of action, or demands as may be based upon the commitments expressly undertaken in this AGREEMENT. 7. Release of Unknown Claims. For the purpose of implementing a full and complete release and discharge of the Parties, as well as their respective present and former officials, council members, directors, employees, heirs, representatives, agents, governing bodies, attorneys, insurers, predecessors -in -interest, successors -in -interest, assigns, and any all persons acting by, through, under, or in concert with any of them, the Parties expressly acknowledge that this AGREEMENT is also intended to include in its effect, without limitation, all claims that the Parties do not know of or expect to exist in their favor at the time of the execution hereof, and the Parties agree that this AGREEMENT contemplates the extinguishment of any such claim or claims that in any way relate to or arise from the Disputes. In addition, the Parties expressly waive and relinquish all rights and benefits afforded by California Civil Code section 1542 relating to the subject matter hereof, and, in doing so, understand and acknowledge the significance and consequences of such specific waiver of said provisions of law. Civil Code section 1542 states 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. Initialed by: City 1901 8. Each Party to Bear Their Own Fees and Costs. Each Party shall bear its/his/her own costs, expenses, and attorneys' fees incurred in connection with the Disputes, the administrative and/or legal proceedings preceding or resulting in this AGREEMENT, and in connection with any other proceedings or actions initiated by any Party against any other Party in any forum. (civil, criminal, administrative, or quasi -administrative) concerning the Disputes, and each of the Parties hereto, and each of their respective associated or related parties, expressly waives any claim for recovery of any such costs, expenses, or attorneys' fecs from the Party. Attorneys for all Parties to this AGREEMENT do likewise expressly waive any claim for recovery of costs, expenses, and/or attorney's fees from the Party(ies) that are not their client(s) and/or from any source whatsoever, relating to the matters discussed herein, except as otherwise provided for in this AGREEMENT. 9. Limitations. The sole and exclusive purpose of this AGREEMENT is to finally and fully settle the Disputes as they pertain to the Parties, and consistent with Sections 3 and 4 of this AGREEMENT nothing in this AGREEMENT is intended to nor shall establish, dictate, or impact the City's method of complying with its obligations under Government Code section 65995 to calculate and determine "assessable space" with respect to any project now pending or any future project, including but not limited to those projects involving 1901. Subject to the limitations provided by law, including but not limited to any final judgment in the Appeals, the City expressly reserves the right to administer Government Code section 65995 and make any and all determinations required thereunder. 10. No Other Terms. This AGREEMENT contains all of the terms and conditions agreed upon by the Parties hereto regarding the subject matter of this AGREEMENT. Any prior or contemporaneous agreements, promises, negotiations, or representations, either oral or written, relating to the subject matter of this AGREEMENT, not expressly set forth in this AGREEMENT, are of no force or effect. 11, Waiver of Terms of Agreement. No waiver by any Party of any breach of any term or provision of this AGREEMENT shall be construed to be, nor be, a waiver of any preceding, concurrent, or succeeding breach of the same, or any other term or provision hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. 12. Interpretation. This AGREEMENT has been jointly negotiated. and drafted by the Parties and their respective attorneys, and it shall not be interpreted or construed in favor of or against any Party on grounds that said Party drafted the Agreement. The language in this AGREEMENT shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties, The Parties also agree and understand that should any provision of this AGREEMENT be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms and provisions shall not be affected thereby and said illegal or invalid part, terms, or provisions shall be deemed not to be part of this AGREEMENT. The Parties further agree that this AGREEMENT was negotiated and executed in the State of California and shall be interpreted under the procedural and substantive laws of California as existing as of the Effective Date, without regard to principles of conflict of laws. 13. Consultation with Counsel. Each Party hereto represents and agrees that he or it has carefully read and fully understands all of the provisions of this AGREEMENT, and that he, 5 she, or it is voluntarily, without any duress or undue influence on the part of or on behalf of any Party, entering into this AGREEMENT. The Parties affirm that, prior to execution of this AGREEMENT, each of them has consulted with counsel of his, her, or its choice concerning the terms and conditions set forth herein, and that they agree to the terms and conditions. 14. Execution of Agreement. This AGREEMENT may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy, e-mail, or facsimile transmission of the AGREEMENT, including signatures, shall be deemed to constitute sufficient evidence of the AGREEMENT having been executed. 15. Authority to Enter Agreement. The Parties warrant that they have the full authority to enter into this Agreement. Where applicable, all governmental, corporate, organizational or other action necessary to authorize such execution has been taken and completed. The signatory of each party to this AGREEMENT has the full right and authority to commit and bind each respective Party, and all members and/or individuals related thereto, to the fullest extent of the law. 16. Confidentiality. The Parties agree that to the maximum extent permissible by law the negotiations which gave rise to this AGREEMENT shall not be disclosed, discussed or revealed by the Parties or their counsel to any other person or entity, except as provided by applicable law. The Parties agree and acknowledge that this AGREEMENT is a public record subject to disclosure by the City under California's Public Records Act, and that the City's actions taken in accordance herewith are, subject to the City's discretion, subject to public disclosure. 1T Enforcement. The Parties agree that any and all disputes regarding this AGREEMENT shall be brought in the Superior Court of the State of California, Orange County. In any action brought to enforce any provision of this AGREEMENT, the prevailing party shall be entitled to recover its attorneys' fees and/or costs. 19. Severability. If any provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid under the law, each sueh provision can be severed without invalidating the entire Agreement. 19. Readings. The titles, captions, and headings of the various provisions in the paragraphs herein are intended solely for convenience and shall not be deemed or construed to explain, modify, limit or place any construction upon any of such provisions or paragraphs. 20. Modification. No supplement, modification, amendment or change in any terms of this AGREEMENT shall be binding on the Parties unless in writing and executed by the Parties. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE BY THE PARTIES OF ALL KNOWN AND UNKNOWN CLAIMS. [SIGNATURES ON THE FOLLOWING PAGE] IN WITNESS WHEREOF, the parties hereto have executed the SETTLEMENT AGREEMENT AND GENERAL RELEASE. Dated: Dated: APPROVED AS TO FORM: Dated: 1901 FIRST STREET OWNER, LLC, a California limited liability corporation By: Its: CITY OF SANTA ANA, a California charter city By: City Manager COUNSEL FOR 1901 FIRST STREET OWNER, LLC CITY ATTORNEY FOR THE CITY OF SANTA ANA Dated: SONIA R. CARVALHO 7�0577-79Rg,48374v, l a f 14.5 MARIA D. HUZAR CLERK OF THE COUNCIL 7