HomeMy WebLinkAboutAGENDA REPORT 2001 0620 CC REG ITEM 11I Iii( , IoiO
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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 .
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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.
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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.
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(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
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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.
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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.
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