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HomeMy WebLinkAboutPardee Homes Cooperative Agreement 10-01-15 COOPERATION AGREEMENT This COOPERATION AGREEMENT ("Agreement") is made and effective as of the 1st day of October, 2015 ("Effective Date"), by and among the CITY OF LAKE ELSINORE, a California Municipal Corporation ("City"), on the one hand, and PARDEE HOMES, a California Corporation ("Pardee"), on the other hand(collectively, "Parties", and individually, "Party"). RECITALS WHEREAS, the Western Riverside Council of Governments ("WRCOG") has commenced enforcement proceedings and investigations (the "Action") against the City in connection with a dispute over the City's collection of Transportation Uniform Mitigation Fees ("TUMF') related to development occurring within the Cottonwood Hills (aka Canyon Hills) Specific Plan area as designated in the July 9, 1990, development agreement with Pardee- Grossman/ Cottonwood Canyon, a general partnership organized and existing under the laws of the State of California, including all amendments and any Memorandums of Understanding thereto (the "Pardee Agreement"). Pardee, Richmond American Homes of Maryland, Inc., a Maryland corporation, and Pulte Home Corporation, a Michigan corporation, are the current successors in interest to the Pardee Agreement and developers within the Canyon Hills Specific Plan area defined therein. WHEREAS, the above-referenced enforcement proceeding and investigation has resulted in the City having to consent to that certain Memorandum of Agreement ("MOA") in which City and WRCOG will engage in a voluntary non-binding arbitration (the "Arbitration"). Pardee is neither a party to the MOA nor the Arbitration and is not bound by nor involved in either. The MOA, among other things, provides that at the conclusion of the non-binding arbitration, either the City or WRCOG may elect to file an action in Superior Court seeking a declaration, among other things, as to whether the development occurring within the Cottonwood Hills (aka Canyon Hills) Specific Plan area is exempt from TUMF (the "Future Litigation"). Because Pardee's project, a residential development project (the "Project"), is in the Canyon Hills development, Pardee is an interested parry in such Future Litigation. WHEREAS, WRCOG asserts that the City owes past due TUMF relating to building permits issued by the City in connection with the Project. The City and Pardee dispute WRCOG's position and maintain that no such TUMF are due in connection with past or future Project building permits. WHEREAS, the Parties and their respective attorneys of record entered into that certain joint defense agreement (the "Joint Defense Agreement"), dated July 15, 2015, under which the Parties agreed to, among other things, share information with respect to their defenses of the Action and Future Litigation. WHEREAS, the Parties now wish to resolve various uncertainties related to the outcome of the Action, Arbitration and Future Litigation. This Agreement sets forth the allocation of TUMF responsibility among the Parties, depending on the outcome of the Action, Arbitration or Future Litigation. - 1 - AGREEMENT Based upon the foregoing recitals, which are true and correct and incorporated herein by reference, and in consideration of the mutual promises of the Parties, it is hereby agreed as follows: 1. The City's Responsibility for Past Due TUMF. The City agrees that if a determination is reached in favor of WRCOG in the Action, Arbitration, Future Litigation, settlement, TUMF Recovery Litigation (defined below), or otherwise, in whole or in part, the City shall be solely responsible for the payment of any and all TUMF alleged by WRCOG to be due from the 2003 effective date of the TUMF through the Effective Date of this Agreement ("Past Due TUMF"). The City further agrees that regardless of the outcome of the Action, Arbitration or Future Litigation, Pardee shall not be responsible for the payment of any Past Due TUMF. 2. Pardee's Responsibility for Future TUMF. From and after the Effective Date of this Agreement, the Parties agree that the City will be permitted to collect TUMF for building permits issued thereafter in connection with the Project ("Future TUMF"). The Parties acknowledge that Pardee will tender such Future TUMF under protest, and that Pardee will institute proceedings against the City and WRCOG to recover such payments, plus statutory interest under Government Code section 66020, subdivision (e) (the "TUMF Recovery Litigation"). If a final determination is reached in favor of WRCOG, in whole or in part, in the Future Litigation, TUMF Recovery Litigation, or other action, and provided that Pardee is a party to any such Future Litigation, TUMF Recovery Litigation, or other action, Pardee shall be solely responsible for the payment of any and all Future TUMF awarded to WRCOG. Pardee further agrees that regardless of the outcome of the Action, Arbitration, Future Litigation, or TUMF Recovery Litigation, City shall not be responsible for the payment of any Future TUMF. Pardee expressly reserves and does not waive or release any rights to assert any claims, defenses, interests, or causes of action in the Future Litigation, TUMF Recovery Litigation, or other action, including, but not limited to, breach of contract, interference with contract and impairment of contract claims. Notwithstanding the foregoing, Pardee agrees that it will seek to collect and enforce first against WRCOG any judgment obtained in Pardee's favor in the Future Litigation, TUMF Recovery Litigation, or other action, including recovery of TUMF tendered under protest and statutory interest relating thereto. Pardee also agrees that it will not collect and enforce against the City any judgment it obtains in the Future Litigation, TUMF Recovery Litigation, or other action, other than recovery of TUMF tendered under protest. 3. Confidentiality of this Agreement. This Agreement shall be privileged from discovery and inadmissible as evidence in any legal proceedings brought against the Parties or any of them and this Agreement shall not be disclosed to any Third Party except where necessary to enforce the terms of this Agreement or to comply with a court order. 4. No Admission of Liability or Waiver. This Agreement is not an admission of liability or fault of any Party in reference to any alleged or asserted facts, legal contentions and occurrences that are now or might be alleged with respect to any threatened or asserted claims associated with or in any way related to the Action, Arbitration or Future Litigation. Neither this Agreement, nor any information contained in or submitted under this Agreement, nor any action -2 - taken by any Party pursuant to this Agreement shall constitute, be interpreted, construed, or used as evidence of any admission of liability, law, or fact, waiver of any right or defense, nor as an estoppel, against any Party by any other Party or by any Third Party. The Parties further acknowledge that all communications between the Parties concerning the Action, Arbitration or Future Litigation shall be considered settlement discussions protected under California Evidence Code section 1152, except for public meetings and/or public documents regarding the Action, Arbitration, or Future Litigation. 5. No Third Party Beneficiary. Except as specifically provided herein, nothing in this Agreement shall waive, release, or otherwise affect any right, claim, defense, interest, or cause of action that any Party may have with respect to any Third Party. This Agreement is not intended for the benefit of any Third Party and shall not be enforceable by any party who is not a Party. 6. No Joint Venture. This Agreement does not form a joint venture or partnership by or among the Parties. 7. Amendment. No part of this Agreement may be modified, altered, amended, waived, or changed without the express written consent of the Parties hereto. 8. Notice. All notices under this Agreement must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, or (ii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the party or persons intended, as follows, until such time as a party gives notice of a change of address in accordance with the terms of this section: Pardee Citv Attn: Christopher J. Hallman, Attn: City Manager General Counsel, Pardee Homes Lake Elsinore City Hall c/o TRI Pointe Group 130 South Main Street 19450 Jamboree Road, Ste. 300 Lake Elsinore, CA 92530 Irvine, CA 92612 Phone: (951) 674-3124 Phone: (949) 438.1451 Fax: (951) 674-2392 Fax: (949) 438-1401 Mike Taylor, Division President Inland Empire/Orange County 35050 Canyon Hills Road Lake Elsinore, CA 92532 Phone: (951) 246-2218 Fax: (951) 246-2155 -3 - With a copy to: With a cony to: Attn: Michael L. Tidus, Esq. Attn: Barbara Leibold, Esq. Jackson, DeMarco, Tidus & Leibold, McClendon & Mann, APC Peckenpaugh, APC 9841 Irvine Center Drive, Suite 230 2030 Main Street, Ste. 1200 Irvine, CA 92618 Irvine, CA 92614 Phone: (949) 585-6300 Phone: (949) 752-8585 Fax: (949) 585-6305 Fax: (949) 752-0597 9. Assignment. This Agreement shall not be assigned by either Party, either in whole or in part, without the prior written consent of the non-assigning Party. Any assignment or purported assignment of this Agreement without the prior written consent of the non-assigning Party will be deemed void and of no force or effect. 10. Interpretation. The Parties hereto have negotiated this Agreement at arm's length and have been advised by their respective attorneys, and no provision contained herein shall be construed against any Party. 11. Authority to Execute. The individuals executing this Agreement each represent and warrant that they have the legal power, right and actual authority to bind their respective Parties to the terms and conditions hereof. 12. Counterparts. The Parties may execute duplicate originals (counterparts) of the Agreement or any other documents that they are required to sign or furnish pursuant to the Agreement. 13. Severability. If any provision of this Agreement is found invalid or unenforceable,the balance of this Agreement shall remain in full force and effect. 14. Term. This Agreement shall terminate as to all Parties on the date on which the later of the following events occurs: entry of final judgment in the Action and any Future Litigation and any TUMF Recovery Litigation; dismissal of all causes of action as to all Parties in the Action and any Future Litigation and TUMF Recovery Litigation; settlement of the Action and any Future Litigation and TUMF Recovery Litigation as to each and every Party; and completion of all payments by the City to WRCOG as required under this Agreement (the "Termination Date"). Any Party may terminate this Agreement effective upon written notice of termination to all other Parties. After termination, the Parties shall continue to preserve the confidentiality of this Agreement, the Joint Defense Agreement, and all Defense Materials under the Joint Defense Agreement, in the manner set forth herein. 15. Entire Agreement. No other agreements, express or implied, have been made by the parties to this Agreement concerning the subject matter herein, other than the Joint Defense Agreement. All prior and contemporaneous conversations, negotiations and possible or alleged agreements concerning the subject matter herein are merged and integrated in this Agreement. -4 - IN WITNESS WHEREOF,the Parties have executed this Agreement as of the Effective Date. CITY OF LAKE ELSINORE PARDEE HOMES a California Municipal Corporation a California Corporation By: Grant Yates By: Mike Taylor City Manager Division President ATTEST: APPROVED AS TO FORM: By: Susan Domen Christopher J. Hallman City Clerk General Counsel APPROVED AS TO FORM: LEIBOLD McCLENDON & MANN, PC By: Barbara Leibold, City Attorney - 5 - IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CITY OF LAKE ELSINORE PARDEE HOMES a California Municipal Corporation a California Corporation l By: Gr ates By: Mike Taylor City M4dager Division President ATTEST: APPROVED AS TO FORM: Gt/J By: SuAailDomen sto a man �$/ �0 City Clerk General unsel APPROVED AS TO FORM.-, db"L- 7 ) - LL4BOLD McCLENDON& MANN, PC By: Barbara Leibold, City Attorney - 5 -