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HomeMy WebLinkAboutAGENDA REPORT 2001 0620 CC REG ITEM 11I Iii( , IoiO C_,4 Vc)F15,00IIPARK,CALIFORNIA Cily Council Meeting te MOORPARK CITY COUNCIL �eGom.�e� 1r?:a__...._ --- AGENDA REPORT TO: Honorable City Council FROM: Deborah S. Traffenstedt, ATCM/City Clerk 0)S I DATE: June 14, 2001 (CC Meeting of 6/20/01) SUBJECT: Consider Settlement Agreement with Toll CA, L.P. , for Vesting Tentative Tract 4928 BACKGROUND Attached is a proposed settlement agreement with Toll Brothers for Tract 4928 pertaining to the amount of the park (Quimby) fees to be paid. The attached agreement resolves a dispute with respect to the determination of fair market value and the method of calculation for the Quimby fees . STAFF RECOMMENDATION Approve the Settlement Agreement subject to final language approval of the City Manager and City Attorney and authorize the Mayor to sign the agreement . Attachment : Draft Settlement Agreement . C cC,a3 ; SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ("Agreement") is made and entered into as of the day of June, 2001, by and among the CITY OF MOORPARK, a general law city("City"), on the one hand, and TOLL CA GP CORP., a California corporation and TOLL CA, L.P., a California limited partnership (collectively, "Toll"), on the other hand, with reference to the following facts and circumstances and is effective as of the date set forth above. City and Toll may hereinafter be referred to individually as "Party"and collectively as "Parties." RECITALS A. Toll is in the process of satisfying conditions of approval for vesting Tentative Tract 4928 within the City of Moorpark. B. Condition of Approval No. 28 states: "Prior to approval of each phase of the Final Vesting Map, the subdivider shall pay Park(Quimby) Fees consistent with City Subdivision Ordinance Requirements." C. Toll and City disagree on the determination of fair market value and the method of calculation for the Quimby Fees to be imposed pursuant to Condition No. 28. Toll does not dispute the imposition of Condition of Approval No. 28 nor its legal obligation to pay Quimby Fees pursuant to the Condition of Approval and the City's Subdivision Ordinance Requirements. D. City and Toll wish to solve their dispute with respect to the payment of Quimby Fees by Toll in connection with development of the vesting Tentative Tract 4928. IN CONSIDERATION of the foregoing and the provisions set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement agree as follows: 1. PAYMENT OF QUIMBY FEES. (a) Toll agrees to pay Quimby Fees in the amount of Twelve Thousand Dollars ($12,000.00)per unit consistent with the City Subdivision Ordinance Requirements prior to approval of each phase of the Final Vesting Map. (b) This fee shall increase by one-half of one percent per month starting on the second anniversary of the City Council approval of the final map for the first phase for vesting Tentative Tract 4928. (c) Toll agrees that such payment shall be made without reservation and Toll expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes mandatory or supplementary thereto. LA#70129 v1 -1- 0.00234 2. MUTUAL RELEASES. Toll and City, and each of them, on behalf of themselves and their successors and assigns,partners,members,beneficiaries, representatives, heirs, executors, administrators, trustees, agents, attorneys-in-fact, and anyone claiming an interest through or under such person, and on behalf of their predecessors and successors in interest regarding the subject matter hereof, do by this instrument fully and forever remise, release and discharge (the "Release")the other party and any parent, subsidiary, division, affiliated or related companies, and each of their respective partners, officers, directors, agents, employees, stockholders,beneficiaries, attorneys,representatives, successors, assigns and heirs, from any and all sums of money, accounts, claims, demands, contracts, actions, debts, controversies, agreements, liabilities, obligations, damages and causes of action whatsoever, of whatever kind or nature, whether known or unknown, fixed or contingent, or suspected or unsuspected by them which any of them now owns,holds,has or claims to have, or at any time heretofore owned, held, had or claimed to have against the others, including specifically but not exclusively and without limiting the generality of the foregoing, any and all claims, damages, demands and causes of action, known or unknown, suspected or unsuspected by reason of any matter or thing alleged or referred to, or directly or indirectly or in any way connected with or arising out of or which may hereafter be claimed to arise out of Condition of Approval No. 28, the City's Subdivision Ordinance and the payment of fees required thereunder. 3. WARRANTY OF AUTHORIZED SIGNATORIES. Each of the signatories hereby warrants and represents that he, or she is competent and authorized to execute this Agreement on behalf of the party for whom he or she purports to sign. 4. EXECUTION OF COUNTERPARTS. The parties hereto agree that this Agreement may, for the convenience of the parties,be executed in counterparts and that it is the intent of the parties that the copy signed by a party will be fully enforceable against that party. 5. MISCELLANEOUS. (a) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, legal representatives, parent, subsidiary, affiliated and related entities, officers, directors,principals, agents, servants, employees, representatives, and all persons, firms, associations and/or corporations connected with them, including without limitation, their insurers, sureties and/or attorneys. (b) Attorneys' Fees. In the event that any action, suit or other proceeding is instituted to remedy,prevent or obtain relief from a breach of this Agreement, or arising out of breach of this Agreement, or contesting the validity or enforceability of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action, suit or other proceeding, including any and all appeals or petitions therefrom. LA#70129 v1 -2- C 9 0 235 (c) Integrated Agreement. This Agreement is an integrated Agreement and constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, communications,representations, or warranties, whether oral or written, by any party or any agent, officer, partner, employee, or representative of any party. (d) Amendments. This Agreement may not be modified, altered, amended, or rescinded except by an instrument in writing,which is signed by all parties affected by any such modification, alteration, amendment or rescission. (e) Severability. Should any part, term or provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. (f) Construction. This Agreement is the product of negotiation, drafting and preparation by and among the parties hereto and their respective attorneys. The parties hereto expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another and its attorneys, and will be construed accordingly. Any rule of construction to the effect that ambiguities are to be resolved against the drafting parties shall not apply in the interpretation of this Agreement. (g) Good Faith Settlement. The parties hereto acknowledge and agree that the settlement embodied in this Agreement is made in good faith. (h) Notices. Unless specified elsewhere in this Agreement, all notices that are required to be delivered under this Agreement in writing and personally delivered, or sent by Federal Express, registered or certified mail,postage prepaid, or facsimile, addressed as follows: To City: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attention: Steven Kueny With a copy to: Burke, Williams, & Sorensen, LLP 611 West Sixth Street, Suite 2500 Los Angeles, California 90017-3102 Attention: Joseph M. Montes, Esq. To Toll: Toll CA GP Corp. 2100 West Orangewood Avenue, Suite 180 Orange, California 92868 Attention: James W. Boyd LA#70129 vl -3- and Toll CA, L.P. 2100 West Orangewood Avenue, Suite 180 Orange, California 92868 Attention: James W. Boyd Such addresses may be changed from time to time by the addressee by serving notice as heretofore provided. Service of such notice or demand shall be deemed complete on the date of actual delivery as shown by the addressee's registry or certification receipt or at the expiration of the third day after the date of mailing(whether or not actually received by the addressee), whichever is earlier in time. (i) Governing Law. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, governed and enforced in accordance with the laws of the State of California applicable to contracts entered into and fully to be performed therein. (j) Further Assurances. Each Party hereto shall from and after the date hereof execute, acknowledge and deliver such further instruments and perform such additional acts as any other Party may reasonably request to effectuate the intent of this Agreement. (k) Time of Essence. The Parties hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either Party shall constitute a material breach of and a non-curable (but waivable) default under this Agreement by the Party so failing to perform. (1) Third Party Beneficiaries. No term or provision of this Agreement or the exhibits hereto is intended to or shall be for the benefit of any person or entity not a party hereto, and no such other person or entity shall have any right or cause of action hereunder. (m) Assistance of Counsel. Toll and City each acknowledge that: (i) they have been represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel; and(iii) this Agreement is the result of negotiations between the parties hereto and the advice and assistance of their respective counsel. Each of the Parties has equally participated in the drafting and preparation of this Agreement, and it is the intention of the Parties that the construction or interpretation of this Agreement shall be made without reference to the party who drafted any portion or particular provision of this Agreement or the relative size and or bargaining power of the Parties. IN WITNESS WHEREOF, the undersigned each has executed this Agreement as of the date first above written. LA#70129 v1 -4- CITY OF MOOPARK TOLL CA GP CORP. By By Patrick Hunter, Mayor James W. Boyd,Vice President California Region of Toll CA GP Attest: Corp. By TOLL CA,L.P. By James W. Boyd,Vice President California Region of Toll CA GP Corp., General Partner of Toll CA L.P. LA#70129 v1 -5-