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HomeMy WebLinkAboutDAHL, DAVID - 1999-05-17nA obi- Rtld ' � � e�frt on �• 3 ,Ib b� fkT,�gl d��; ✓erg Council/Agency Meeting Held:._S-l7-9%2' Deferred/Continued to: "Approved �3 Conditionally Approved ❑ Denied 5 — o -I fJntiI-1an .V; - City Clerk's Signature Council Meeting Date: May 17, 1999 Department ID Number: CA 99-14 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION a SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS r SUBMITTED BY: RAY SILVER, City Administrator PREPARED BY: IL HUTTON, CITY ATTORNEY Ito s.f3' t 7,w ROBERT BEARDSLEY, DIRECTOR OF PUBLIC WORKS SUBJECT: CITY OF HUNTINGTON BEACH v. DAVID DAHL, GOLDEN EAGLE INSURANCE COMPANY, et al. (OCSC Case No. 775726) Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) .Statement of Issue: Should the City Council enter into several settlement agreements resolving the litigation against the subdivider and his bonding company, regarding the public improvements at the Southwest corner of Ellis and Goldenwest. Funding Source: 1. $32,395.64 from David Dahl 2. Golden Eagle insurance Company to install the Ellis Avenue water line. 3. The City to release the remaining Mello -Roos funds (approximately $212,000) to Golden West Partners to complete the remaining Ellis/Golden West improvements. Recommended Action: That the City Council authorize the Mayor to execute and the City Clerk to attest the following agreements: 1. Settlement of Action and Release between the City of Huntington Beach and David Dahl, and Golden Eagle Insurance Company. 2. Settlement of Action and Release between the City of Huntington Beach and William Landis and Golden West Properties. 1 3. Acquisition *Agreement between the City of Huntington Beach and Golden West Partners, LLC. Alternative Action(s): Do not approve the Agreement. REQUEST FOR COUNCIL ACTION MEETING DATE: May 17, 1999 DEPARTMENT ID NUMBER: CA 99-14 Analysis: Defendant David Dahl constructed several residential subdivisions at the south of Ellis Avenue between Edwards and Goldenwest Street. As a condition of development, the City required the widening of Ellis Avenue from Goldenwest to Edwards and installing a twelve -inch water main down the middle of the street. As is typical in land subdivisions, Dahl was not required to improve Ellis Avenue in order to begin his development. Instead, Dahl signed "subdivision agreements" with the City agreeing to install the improvements, and also posted bonds issued by Golden Eagle Insurance Company to insure that the improvements were installed. The Subdivision Agreements required the work to be completed in August 1991. Further, in order to assist Dahl in developing the projects, the City established a Mello -Roos financing district, which mortgaged the underlying land and used the resulting bond proceeds to finance the subdivision improvements. As part of this Mello -Roos transaction, Dahl entered into an "Acquisition Agreement" providing that, although he could draw down upon the bond proceeds to install the subdivision improvements, to the extent that there were inadequate monies to pay for the improvements, then Dahl was personally responsible for installing them. Dahl did not own all the property mortgaged as part of the Mello -Roos district. For example, William Landis agreed to include his land in the district, although it was only in escrow to be sold to Dahl. (Dahl never closed the escrow.) Ultimately, Dahl developed the subdivisions and sold the homes. He also installed all the required subdivision improvements except for completing the final asphalt "lift" for Ellis Avenue and installing the water main. To obtain completion of these improvements, the City filed a lawsuit seeking relief under four basic theories: The City sued David Dahl and his related business entities for breach of the subdivision agreements, specifically for failing to construct the water main and complete Ellis from Saddleback Lane to Edwards. 2. The City sued the bonding company, Golden Eagle insurance Company, for breach of the bond obligations. These bonds covered the Ellis Avenue improvements. 3. The City sued Dahl for breach of the Acquisition Agreement under the Mello - Roos district. This Agreement required Dahl to improve Ellis and Goldenwest, between Saddleback and Goldenwest. These are improvements that would prepare Landis' property for development. (However, neither Dahl's subdivision agreements nor Golden Eagle's bonds covered these additional improvements.) 99-14DAH .2- 05/13/99 9.15 AM REQUEST FOR COUNCIL ACTION MEETING DATE: May 17, 1999 DEPARTMENT ID NUMBER: CA 99-14 4. The City sued William Landis for a declaratory relief action to determine what obligation the City had to expend the Mello -Roos money as between the Ellis Avenue improvements and those specifically benefiting Landis' property. Until recently, the chief obstacle in obtaining relief in this action was that Golden Eagle Insurance Company was in conservatorship. However, Golden Eagle recently came out of conservatorship, and consequently, the City was then able to negotiate a settlement. Simultaneously, Landis is currently selling his land to Golden West Partners (dba "Heritage Homes"). Golden West has been conditioned to complete all the outstanding improvements to Saddleback Lane, Ellis Avenue and Goldenwest. Though the escrow for the sale has not yet closed, grading work has already begun so it appears certain that the escrow will close. Finally, there still remains over $200,000 in the Mello -Roos trust account that could be used for completing Ellis and for the Landis improvements. On Monday, February 1, 1999, the City Council convened in close session to discuss the settlement of the above -referenced litigation. At that time, the City Council authorized the case to be settled on the following grounds: Golden Eagle to install the Ellis Avenue water line. 2. Golden Eagle pays the City the estimated cost to install the final asphalt "lift" on Ellis Avenue in an amount to be determined by the Assistant City Engineer. This money will be retained in the City's interest -bearing account. The work will be completed in conjunction with PLC completing the north side of Ellis. 3. The City would dismiss the case against Dahl and Golden Eagle, including waiving costs plus attorneys fees. 4. The City releases the remaining Mello -Roos funds (approximately $200,000) to Landis/Heritage Homes and they complete all the remaining Ellis/Goldenwest improvements, in connection with the development of the southeast corner of Ellis and Goldenwest. The attached Settlement Agreements implement these four points. The first Settlement Agreement between the City and David Dahl and Golden Eagle provides that Golden Eagle Insurance Company will install the Ellis Avenue water line. It further provides that Golden Eagle or David Dahl will pay the City the estimated cost to install the final asphalt lift on Ellis Avenue. The City Engineer had determined that this amount is $32,000. A check for this amount has already been received from David Dahl. In exchange, this Settlement Agreement provides that the City would dismiss its case against Dahl and Golden Eagle. 99-14DAH -3- 05//3199 9:15 AM REQUEST FOR COUNCIL ACTION MEETING DATE: May 17, 1999 DEPARTMENT ID NUMBER: CA 99-14 The second Settlement Agreement between the City and William Landis and Golden West Partners provides that the remaining funds in the Mello -Roos trust account will be released to the buyer of the Landis property, Golden West Properties. They will use this money to pay for some of the EIIis/Goldenwest improvements. The remainder of the improvements will be installed persuant to normal conditions of approval for the subdivision. In addition, the Acquisition Agreement between the City and Golden West Partners implements this release of funds. Originally, the City had entered into a virtually identical Acquisition Agreement in connection with the original formation of the Mello -Roos district. That Acquisition Agreement was between the City and David Dahl. This new Acquisition Agreement will replace the prior one, and will be between the City and Golden West Partners. Environmental Status: Exempt Attachment(s): ettlement Agreement between City and David Dahl, Golden Eagle Insurance Co. Settlement Agreement between the City and William Landis, 2. Golden West Partners. I Acquisition Agreement between the City and Golden West 3. Partners. Memo from Gail Hutton to Close Session file summarizing 4. City Council Close Session of February 1, 1999 regarding the City v. Dahl/Golden Eagle Insurance Co. 5. I Copy of Settlement Check from David Dahl's attorney. RCA Author: Scott Field, Deputy City Attorney 99-14DAH -4- 05/13/99 9:15 AM ATTACHMENT 1 SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, the Dahl Company, a general partnership, Central Park #8, a limited partnership, Central Park #9, a limited partnership, and Central Park #12, a California limited partnership (collectively, "Dahl") were the owner of two tracts of real property located in the City of Huntington Beach ("City") known as Tract Nos. 13269 and 13270; WHEREAS, the City granted certain development approvals to Tracts 13269 and 13270 subject to the condition that Dahl install certain water facilities and street improvements to Ellis Avenue (the "Ellis Avenue Improvements"); WHEREAS, Dahl entered into subdivision agreements with the City as to each Tract Nos. 13269 and 13270 covenanting to complete the conditions of approval, including the Ellis Avenue improvements; WHEREAS, as security for the covenants of the subdivision agreements, Dahl obtained performance bonds from Golden Eagle Insurance Company ("Golden Eagle") in favor of the City for the Ellis Avenue Improvements, known as Performance Bond No. SUR10-66-71 and Performance Bond No. SUR10-66-72; WHEREAS, in order to assist Dahl in developing the Tracts 13269 and 13270 and related tracts, the City established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"). As part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund any of the public improvements for Tract Nos. 13269 and 13270 and related tracts, then Dahl was personally responsible for installing the improvements; WHEREAS, when Dahl did not complete the Ellis Avenue Improvements, the City filed an action against Dahl and against Golden Eagle Insurance Company entitled City of Huntington 1 of 9 SF-99Agree: Dah10126 04/16/99 - #9 0 0 Beach, et al., v. David Dahl, Golden Eagle Insurance -Company, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the allegations of the Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, the City on one hand, and Golden Eagle and Dahl on the other hand, are desirous of ending this Action and resolving all disputes concerning the Action, NOW, THEREFORE, it is agreed as follows: Except as provided below, the City does hereby release and discharge Golden Eagle, any and all Central Park limited partnerships related to Dahl, Dahl and each of their officers, agents, employees and successors -in -interest, from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action and to all Central Park Tracts, including but not limited to Tract Nos. 13269, 13270, 13036 and 13439, and to Golden Eagle's claims handling practices, procedures, and conduct, including claims that Golden Eagle acted in "bad faith." 2. Golden Eagle agrees to install a fire hydrant and a 12-inch water main in Ellis Avenue of 840 linear feet, pursuant to the plans and specifications for Tract Nos. 13269, 13270 and 13036, and as described in Exhibit A attached hereto (the "Water Facilities"). Golden Eagle shall further comply with all ordinary and customary requirements of the City for constructing such improvements, including obtaining all encroachment permits, inspection permits, and providing proof of certificates of insurance and City business license for Golden Eagle's contractor. (The City shall issue a "no -fee" encroachment permit for the Water Facilities, because the cost of the permit is included in the payment at Section 9 of this Agreement.) 2 of 9 SF-99Agree: Dah10126 04r'16199 - #9 3. Golden Eagle shall begin construction of the Water Facilities within fourteen (14) calendar days of execution of this Agreement by all parties. Golden Eagle shall complete the Water Facilities to the reasonable satisfaction of the City Engineer within thirty (30) working days of beginning construction. Failure to timely begin or complete construction shall subject Golden Eagle to liquidated damages of $100 per day. 4. Golden Eagle shall warranty the Water Facilities for one year after the City Engineer accepts the Facilities. As security for the warranty, Golden Eagle shall deposit Five Thousand Dollars ($5,000) with the City. This Five Thousand Dollars ($5,000) deposit shall be held in an interest -bearing account, to be returned with interest to Golden Eagle at the end of the one-year warranty. Alternatively, Golden Eagle may deposit a certificate of deposit in a form acceptable to the City. 5. Golden Eagle, or its contractor, hereby agrees to protect, defend, indemnify and hold and save harmless City, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to Golden Eagle's or its contractor's employees and contractors and damage to Golden Eagle's or its contractor's property, arising directly or indirectly out of construction of the Water Facilities by Golden Eagle or its contractor, including those arising from the passive concurrent negligence of City, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of City. Golden Eagle's contractor will conduct all defenses at its sole cost and expense. City shall be reimbursed by Golden Eagle or its contractor for all costs and attorney's fees incurred by City in enforcing this obligation. Golden Eagle has satisfied in full its obligation under this Section by its contractor providing the insurance policies described at Sections 6, 7 and S herein, and an indemnity agreement satisfactory to the City. 3 of 9 SF-99Agree:DA14126 poi 16.199 - #9 • 0 6. Pursuant to California Labor Code Section 1861, Golden Eagle or its contractor acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; Golden Eagle or its contractor covenants that they will comply with such provisions prior to commencing construction of the Water Facilities. Golden Eagle or its contractor shall maintain Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty thousand Dollars ($250,000) bodily injury by disease, policy limit. Golden Eagle or its contractor shall require all contractors and subcontractors to provide such Workers' Compensation Insurance for all of the subcontractors' employees. Golden Eagle or its contractor shall furnish to City a certificate of waiver of subrogation under the terms of the Workers' Compensation Insurance and Golden Eagle shall similarly require all subcontractors to waive subrogation. 7. Golden Eagle or its contractor shall carry at all times incident hereto, on all operations to be performed hereunder, general liability insurance, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability. Said insurance shall also include automotive bodily injury and property damage liability insurance. All insurance shall be underwritten by insurance companies in forms satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations and all owned vehicles and non -owned vehicles. Said insurance policies shall name the City and its officers, agents and employees, and all public agencies as determined by the City as Additional Insureds. Golden Eagle or its contractor shall subscribe for and maintain said insurance in full 4 of 9 SF-99Agree:DA10126 04116i99 - #9 force and effect during the life of this Agreement, in an amount of not less than Five Million Dollars ($5,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated aggregate limit, such limit shall be no less than Five Million Dollars ($5,000,000). In the event of aggregate coverage, Golden Eagle or its contractor shall immediately notify City of any known depletion of aggregate limits. Golden Eagle or its contractor shall require its insurer to waive its subrogation rights against City and agrees to provide Certificates evidencing the same. Prior to commencing construction of the Water Facilities, Golden Eagle or its contractor shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by Sections 6 and 7 herein; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be cancelled or modified without thirty (30) calendar days prior written notice to City. Golden Eagle or its contractor shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Golden Eagle or its contractor under Section 5 of this Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Golden Eagle or its contractor shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of Golden Eagle's or its contractor's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 5 of 9 S t=-99Apree: Dah10126 04/16:'99 - #9 9. In lieu of installing the final lift to Ellis Avenue between Saddleback Lane and Edwards Street, Golden Eagle and Dahl jointly and severally agree to pay the City Thirty-two Thousand Three Hundred Ninety-five and 64/100 Dollars ($32,395.64) within five (5) business days of the execution of this Agreement by all of the parties. If the City does not receive timely payment of the sum required by this Section from Dahl, Golden Eagle shall pay the sum within five (5) business days of receiving written notice from the City. 10. The City hereby releases Dahl from the Acquisition Agreement for CFD 1990-1, and Dahl hereby releases any interest in the funds of CFD 1990-1. 11. The City, on one hand, and Dahl and Golden Eagle, on the other hand, waive any claim which they, or any of them, has against the other for costs or attorneys' fees incurred in the Action. However, nothing in this Agreement should be construed to release, discharge, or extinguish any obligations which Dahl, partnerships related to Dahl, or individual indemnitors related to Dahl may or do owe to Golden Eagle, whether such obligations arise from statute, contract, equity, or otherwise. Such obligations and rights are reserved and affirmed by this Agreement. 12. Counsel for the City shall file a dismissal with prejudice to this Complaint in the Action as to Dahl and Golden Eagle within seven (7) calendar days of the completion of the Water Facilities to the satisfaction of the City Engineer. Counsel for the City shall provide counsel for Golden Eagle and Dahl with a conformed copy of the dismissal. 13. The City understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: 6of9 SF-99Agree: Dah 10126 04116/99 - #9 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 14. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 15. The City and Golden Eagle and Dahl expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 16. The City and Golden Eagle and Dahl acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The City and Golden Eagle and Dahl, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 17. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the 7 of 9 SF-99Agree: Dah1Q 126 04/16:'99 - 49 prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 18. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 19. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the City and Golden Eagle and Dahl concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 20. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: rl �% , 1999 ATTEST: - 1W2,74"020—mm-dCity Clerk CITY OF HUNTIN TON BEACH By Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 8 of 9 SF-99Agree: ❑aht0126 04/16/99 -119 • • DATED: April , 1999 GOLDEN EAGLE INSURANCE COMPANY Lo APPROVED AS TO FORM: By Ronald B. Pierce of Sedgwick, Detert, Moran & Arnold Its Attorney of Record DATED: April, 1999 DAVID DAHL THE DAHL COMPANY, a general partnership, CENTRAL PARK NO. 8 CENTRAL PARK NO.9 CENTRAL PARK NO. 12 By - David Dahl, individually, and as a partner to the Dahl Company and as General Partner for Central Park Nos. 8_ 9 and 12 By Lance Cote' of Sainick & Cote' Its Attorney of Record 9 of 9 5 F-99Agme: bah101 Z6 04/16/99 - #9 1911� APR 22 Ail 9= 29 CITY ATTORNEY HUNTINGT'ON BEACH DATED: April-?i,1999 DATED: April , 1999 SR-99Agrmdah10126 9 of 9 04i16l99 49 GOLDEN EAGLE INSURANCE CORP ;Omgj/ ir inistrator for Golden Eagle Insurance Company, In Liquidation APPRVV/E�) AS TO FORM: By Mnafd-13. Pierce of Sedgwick, Detert, Moran & Arnold Its Attorney of Record DAVID DAHL THE DAHL COMPANY a general partnership, CENTRAL PARK NO.S CENTRAL PARK NO.9 CENTRAL PARK NO.12 By David Dahl, individually, and as a partner to the Dahl Company and as General Partner for Central Park Nos. S, 9 & 12 APPROVED AS TO FORM: By Lance Cote' of Sainick & Cote' its Attorney of Record SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, the Dahl Company, a general partnership, Central Park #8, a limited partnership, Central Park #9, a limited partnership, and Central Park #12, a California limited partnership (collectively, "Dahl") were the owner of two tracts of real property located in the City of Huntington Beach ("City") known as Tract Nos. 13269 and 13270; WHEREAS, the City granted certain development approvals to Tracts 13269 and 13270 subject to the condition that Dahl install certain water facilities and street improvements to Ellis Avenue (the "Ellis Avenue Improvements"); WHEREAS, Dahl entered into subdivision agreements with the City as to each Tract Nos. 13269 and 13270 covenanting to complete the conditions of approval, including the Ellis Avenue improvements; WHEREAS, as security for the covenants of the subdivision agreements, Dahl obtained performance bonds from Golden Eagle Insurance Company ("Golden Eagle") in favor of the City for the Ellis Avenue Improvements, known as Performance Bond No. SURI 0-66-71 and Performance Bond No. SUR10-66-72; WHEREAS, in order to assist Dahl in developing the Tracts 13269 and 13270 and related tracts, the City established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"). As part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund any of the public improvements for Tract Nos. 13269 and 13270 and related tracts, then Dahl was personally responsible for installing the improvements; WHEREAS, when Dahl did not complete the Ellis Avenue Improvements, the City filed an action against Dahl and against Golden Eagle Insurance Company entitled City of Huntington 1 of 9 SF-99Agree:Dah10126 04/16/99 - #9 Beach, et al., v. David Dahl, Golden Eagle Insurance Company, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the allegations of the Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, the City on one hand, and Golden Eagle and Dahl on the other hand, are desirous of ending this Action and resolving all disputes concerning the Action, NOW, THEREFORE, it is agreed as follows: 1. Except as provided below, the City does hereby release and discharge Golden Eagle, any and all Central Park limited partnerships related to Dahl, Dahl and each of their officers, agents, employees and successors -in -interest, from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action and to all Central Park Tracts, including but not limited to Tract Nos. 13269, 13270, 13036 and 13439, and to Golden Eagle's claims handling practices, procedures, and conduct, including claims that Golden Eagle acted in "bad faith." 2. Golden Eagle agrees to install a fire hydrant and a 12-inch water main in Ellis Avenue of 840 linear feet, pursuant to the plans and specifications for Tract Nos. 13269, 13270 and 13036, and as described in Exhibit A attached hereto (the "Water Facilities"). Golden Eagle shall further comply with all ordinary and customary requirements of the City for constructing such improvements, including obtaining all encroachment permits, inspection permits, and providing proof of certificates of insurance and City business license for Golden Eagle's contractor. (The City shall issue a "no -fee" encroachment permit for the Water Facilities, because the cost of the permit is included in the payment at Section 9 of this Agreement.) 2 of 9 SF-99Agree:Dah10126 04/16/99 - #9 3. Golden Eagle shall begin construction of the Water Facilities within fourteen (14) calendar days of execution of this Agreement by all parties. Golden Eagle shall complete the Water Facilities to the reasonable satisfaction of the City Engineer within thirty (30) working days of beginning construction. Failure to timely begin or complete construction shall subject Golden Eagle to liquidated damages of $100 per day. 4. Golden Eagle shall warranty the Water Facilities for one year after the City Engineer accepts the Facilities. As security for the warranty, Golden Eagle shall deposit Five Thousand Dollars ($5,000) with the City. This Five Thousand Dollars (S5,000) deposit shall be held in an interest -bearing account, to be returned with interest to Golden Eagle at the end of the one-year warranty. Alternatively, Golden Eagle may deposit a certificate of deposit in a form acceptable to the City. 5. Golden Eagle, or its contractor, hereby agrees to protect, defend, indemnify and hold and save harmless City, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to Golden Eagle's or its contractor's employees and contractors and damage to Golden Eagle's or its contractor's property, arising directly or indirectly out of construction of the Water Facilities by Golden Eagle or its contractor, including those arising from the passive concurrent negligence of City, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of City. Golden Eagle's contractor will conduct all defenses at its sole cost and expense. City shall be reimbursed by Golden Eagle or its contractor for all costs and attorney's fees incurred by City in enforcing this obligation. Golden Eagle has satisfied in full its obligation under this Section by its contractor providing the insurance policies described at Sections 6, 7 and 8 herein, and an indemnity agreement satisfactory to the City. 3 of 9 SF-99Agree:Dah10126 04/16/99 - #9 - 6. Pursuant to California Labor Code Section 1861, Golden Eagle or its contractor acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; Golden Eagle or its contractor covenants that they will comply with such provisions prior to commencing construction of the Water Facilities. Golden Eagle or its contractor shall maintain Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty thousand Dollars ($250,000) bodily injury by disease, policy limit. Golden Eagle or its contractor shall require all contractors and subcontractors to provide such Workers' Compensation Insurance for all of the subcontractors' employees. Golden Eagle or its contractor shall furnish to City a certificate of waiver of subrogation under the terms of the Workers' Compensation Insurance and Golden Eagle shall similarly require all subcontractors to waive subrogation. 7. Golden Eagle or its contractor shall carry at all times incident hereto, on all operations to be performed hereunder, general liability insurance, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability. Said insurance shall also include automotive bodily injury and property damage liability insurance. All insurance shall be underwritten by insurance companies in forms satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations and all owned vehicles and non -owned vehicles. Said insurance policies shall name the City and its officers, agents and employees, and all public agencies as determined by the City as Additional Insureds. Golden Eagle or its contractor shall subscribe for and maintain said insurance in full 4 of 9 SF-99Agree:Dah10126 04/16/99 - #9 force and effect during the life of this Agreement, in an amount of not less than Five Million Dollars ($5,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated aggregate limit, such limit shall be no less than Five Million Dollars ($5,000,000). In the event of aggregate coverage, Golden Eagle or its contractor shall immediately notify City of any known depletion of aggregate limits. Golden Eagle or its contractor shall require its insurer to waive its subrogation rights against City and agrees to provide Certificates evidencing the same. 8. Prior to commencing construction of the Water Facilities, Golden Eagle or its contractor shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by Sections 6 and 7 herein; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be cancelled or modified without thirty (30) calendar days prior written notice to City. Golden Eagle or its contractor shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Golden Eagle or its contractor under Section 5 of this Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Golden Eagle or its contractor shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of Golden Eagle's or its contractor's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 5 of 9 SF-99Agree: Dah1012b 04/16/99 - #9 9. In lieu of installing the final lift to Ellis Avenue between Saddleback Lane and Edwards Street, Golden Eagle and Dahl jointly and severally agree to pay the City Thirty-two Thousand Three Hundred Ninety-five and 64/100 Dollars ($32,395.64) within five (5) business days of the execution of this Agreement by all of the parties. If the City does not receive timely payment of the sum required by this Section from Dahl, Golden Eagle shall pay the sum within five (5) business days of receiving written notice from the City. 10. The City hereby releases Dahl from the Acquisition Agreement for CFD 1990-1, and Dahl hereby releases any interest in the funds of CFD 1990-1. 11. The City, on one hand, and Dahl and Golden Eagle, on the other hand, waive any claim which they, or any of them, has against the other for costs or attorneys' fees incurred in the Action. However, nothing in this Agreement should be construed to release, discharge, or extinguish any obligations which Dahl, partnerships related to Dahl, or individual indemnitors related to Dahl may or do owe to Golden Eagle, whether such obligations arise from statute, contract, equity, or otherwise. Such obligations and rights are reserved and affirmed by this Agreement. 12. Counsel for the City shall file a dismissal with prejudice to this Complaint in the Action as to Dahl and Golden Eagle within seven (7) calendar days of the completion of the Water Facilities to the satisfaction of the City Engineer. Counsel for the City shall provide counsel for Golden Eagle and Dahl with a conformed copy of the dismissal. 13. The City understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: 6 of 9 SF-99Agmc:Dah10126 04/ 16199 - #9 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 14. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 15. The City and Golden Eagle and Dahl expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 16. The City and Golden Eagle and Dahl acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The City and Golden Eagle and Dahl, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 17. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the 7 of 9 SF-99Agme:Dah10126 04/ 16/99 - #9 prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 18. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 19. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the City and Golden Eagle and Dahl concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 20. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. MAY DATED:-A}4�-17 , 1999 ATTEST: City Clerk CITY OF HUNTINGTON BEACH Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 8 of9 SF-99Agree: Dah10116 04/16/99 - #9 DATED: DATED April-�t,1999 April , 1999 SR-99Agree:dah10126 9 of 9 04/16/99-#9 GOLDEN EAGLE INSURANCE CORD ON hir Party minlstrator for Golden Eagle Insurance Company, In Liquidation APPRONEW AS TO FORM: By f-Wafd`13. Pierce of Sedgwick, Detert, Moran & Arnold Its Attorney of Record DAVID DAHL THE DAHL COMPANY a general partnership, CENTRAL PARK NO.8 CENTRAL PARK NO.9 CENTRAL PARK NO.12 By David Dahl, individually, and as a partner to the Dahl Company and as General Partner for Central Park Nos. 8, 9 & 12 APPROVED AS TO FORM: By Lance Cote' of Sainick & Cote' its Attorney of Record DATED: April , 1999 DATED: April /1999 GOLDEN EAGLE INSURANCE COMPANY APPROVED AS TO FORM: By Ronald B. Pierce of Sedgwick, Detert, Moran & Arnold Its Attorney of Record DAVID DAHL THE DAHL COMPANY, a general partnership, CENTRAL PARK NO. 8 CENTRAL PARK NO.9 CENTRAL PARK NO. 12 By4_ David Dahl, individually, and as a partner to the Dahl Company and as General Partner for Central Park Nos. 8_ 9 and 12 ny Lance Cote' of Sainick & Cote' Its Attorney of Record 9 of 9 SF-99Agree: DA10126 04116l99 - #9 ATTACHMENT 4 TO: FROM: DATE: SUBJECT CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION CONFIDENTIAL ATTORNEY -CLIENT PRIVILEGE CLOSED SESSION FILE GAIL HUTTON, City Attorney February 1, 1999 City v. DahIlGolden Eagle Insurance Co. OCSC Case No.77 57 2E On Monday, February 1, 1999, the City Council convened in closed session to discuss the referenced matter pursuant to the litigation exception contained in Government Code Section 54956.9(a). ,All seven members of the council were present, including Mayor Peter Green, Dave Garofalo, Shirley Dettloff, Ralph Bauer, Tom Harman, Pam Julien, and Dave Sullivan. Also present were City Attorney Gail Hutton, City Administrator Ray Silver, Assistant City Administrator Melanie Fallon, Director of Administrative Services John Reekstin, and Deputy City Attorney Scott Field. Council authorized the case be settled on the following bases: Golden Eagle to install the Ellis Avenue water line. 2. Golden Eagle pays the City the estimated cost to install the final asphalt "lift" on Ellis Avenue in an amount to be determined by the Assistant City Engineer. This money will be retained in the City's interest -bearing account. The work will be completed in conjunction with PLC completing the north side of Ellis. 3. The City would dismiss the case against Dahl and Golden Eagle, including waiving costs plus attorneys fees. 4. The City releases the remaining Mello -Roos funds (approximately $200,000) to Landis/ Heritage Homes and they complete all the remaining Ellis/Goldenwest improvements, in connection with the development of the southeast corner of Ellis and Goldenwest. Vote (7 - 0) Z11 GAIL HUTTON City Attorney GH/ab Attachments: 1. Closed Session Notices 2. Lawsuit Status Sheet closed/memo/Dahl • Approve as • ;eption to the Ralph M. Brown Act Subject: City „v. Dahl/Golden Eagle Insurance Co. GAIL HUTCON, City Attorney/ STATEMENT FOR FOR MAYOR PRIOR TO CLOSED SESSION ACTION OF CITY COUNCIL Date: FebruarV 1 1999 1. X MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GG �'� i 9(a) TO CONFER WITH ITS ATTORNEY REGARDING PENDING LITIGAT;C ��s RMALLY AND TO WHICH THE CITY IS A PARTY. (CHECK ONE.) X The title of the litigation is City y. DahllGolden Eagle InSL Orange County Superior Court Case No. 77 57 26 Identification of such litigation would jeopardize the city's ability to effect service of process upon one or more unserved parties; or Identification of such litigation would jeopardize the city's ability to conclude existing settlement negotiations to its advantage. 2. MOTION TO RECESS TO CLOSED SESSION TO CONFER WITH ITS CITY ATTORNEY REGARDING PENDING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION: 54956.9(b)(3)(A) (Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.) Number of Potential Cases 54956.9(b)(3)(B) (Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.) 54956.9(c) (Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.) Number of Potential Cases 3. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.8 TO GIVE INSTRUCTIONS TO THE CITY'S NEGOTIATOR, , REGARDING NEGOTIATIONS WITH ._CONCERNING THE PURCHASE 1 SALE 1 EXCHANGE 1 LEASE OF THE PROPERTY LOCATED AT Instruction will concern: Price Terms of Payment Both 4. MOTION TO RECESS TO CLOSED SESSION TO MEET WITH ITS DESIGNATED REPRESENTATIVES REGARDING LABOR RELATIONS MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957.6. Agency Negotiator: Name Employee Organizations Unrepresented Employees 5. MOTION TO RECESS TO CLOSED SESSION TO CONSIDER PERSONNEL MATTERS PURSUANT TO GOVERNMENT CODE SECTION 54957. 6. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.7 TO MEET WITH AN APPLICANT FOR A CITY LICENSE AND THE APFUCANT'S AT T ORNEY. 7. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 TO MEET WITH THE CHIEF OF POLICE REGARDING MATTERS OF PUBLIC SECURITY. VOTE: • Name Subject: City v. Dahl/Golden_Eagle Insurance Co. CONFIDENTIAL MEMORANDUM FROM THE CITY ATTORNEY CONCERNING A CLOSED SESSION BEFORE THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH TO: Honorable Mayor and Members of the City Council Ray Silver, City Administrator FROM: Gail Hutton, City Attorney SUBJECT: CLOSED SESSION TO DISCUSS PENDING LITIGATION (Government Code Section 54956.9) The reasons and legal authority for holding a closed session on February 1, 1999, for the purpose of conferring with and/or receiving advice from its legal counsel concerning pending litigation are as follows: 1. X Litigation has been formally initiated to which the city is a party. The title of said litigation is City v. Dahl/Golden Eagle Insurance Co. Orange County Superior Court Case No.77 57 26. Said closed session is held under the authority of California Government Code Section 54956.9(a). 2. Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. Said closed session is held under the authority of California Government Code Section 54956.9(b)(3)(A). 3. Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced. Said closed session is held under the authority of California Government Code Section 54956.9(b)(3)(B). 4. Based on existing facts and circumstances, the legislative body of the local agency has decided to or is deciding whether to initiate litigation. Said closed session is held under the authority of California Government Code Section 54956.9(c). STATEMENTS OF FACTS AND CIRCUMSTANCES SUPPORTING THE HOLDING OF A CLOSED SESSION UNDER PARAGRAPHS 2, 3 OR 4, ABOVE: Dated: v/_� v l 2 di _" 2 GAIL HUTTON, CITY ATTORNEY NOTE: This document is protected by the attorney -client privilege and is exempt from disclosure pursuant to Government Code Section 54956.9. The form itself must be submitted prior to the closed session, if feasible, or at least one week thereafter. 0 • HBHUNTINGTON BEACH CITY ATTORNEY CONFIDENTIAL LAWYER -CLIENT COMMUNICATION LAWSUIT STATUS SHEET TO: HPNORABLE MAYOR A\`D MEMBERS OF THE CITY COUNCIL FROM: / GAIL HUTTON, City Attorney DATE: Council Meeting - February 1, 1999 CASE: Ci1V 1f. David Dahl, e1 al. OCSC Case No. 77 57 26 This lawsuit status sheet incorporates the City Attorneys recommendation and attached outside counsel analysis as appropriate. CITY ATTORNEY RECOMMENDATION FOR COUNCIL ACTION: SETTLEMENT RECOMMENDATION That the City Council authorize the case be settled on the following basis: Golden Eagle to install the Ellis Avenue water line. 2. Golden Eagle pays the City the estimated cost to install the final asphalt "lift" on Ellis Avenue in an amount to be determined by the Assistant City Engineer. This money will be retained in the City's interest -bearing account. The work will be completed in conjunction with PLC completing the north side of Ellis. 3. The City would dismiss the case against Dahl and Golden Eagle, including waiving costs plus attorneys fees. 4. The City releases the remaining Mello -Roos funds (approximately S200,000) to Landis/Heritage Homes and they complete all the remaining Ellis/Goldenwest improvements, in connection with the development of the southeast corner of Ellis and Goldenwest. G:C1osed:1awstat:Dah10201 1/27/99 - #3 C� NATURE OF CASE: Breach of subdivision agreement, surety bonds and Mello -Roos construction agreement Defendant David Dahl constructed several residential subdivisions at the southwest intersection of Ellis Avenue and Goldenwest Street. As a condition of development, the City required the widening of Ellis Avenue from Goldenwest to Edwards and installing a twelve -inch water main down the middle of the street. As is typical in land subdivisions, Dahl was not required to improve EIlis Avenue in order to begin his development. Instead, Dahl signed "subdivision agreements" with the City agreeing to install the improvements, and also posted bonds issued by Golden Eagle Insurance Company to insure that the improvements were installed. The Subdivision Agreement required the work to be completed in August 1991. Further, in order to assist Dahl in developing the projects, the City established a Mello - Roos financing district, which mortgaged the underlying land and used the resulting bond proceeds to finance the subdivision improvements. As part of this Mello -Roos transaction, Dahl entered into an "Acquisition Agreement" providing that, although he could draw down upon the bond proceeds to install the subdivision improvements, to the extent that there were inadequate monies to pay for the improvements, then Dahl was personally responsible for installing them. Dahl did not own all the property mortgaged as part of the Mello -Roos district. For example, Defendant William Landis agreed to include his land in the district, although it was only in escrow to be sold to Dahl. (Dalil never closed the escrow.) Ultimately, Dahl developed the subdivisions and sold the homes. He also installed all the required subdivision improvements except for completing the final asphalt "lift" for Ellis Avenue and installing the water main. The lawsuit seeks relief under four basic theories: 1. The City is suing David Dahl and his related entities for breach of the subdivision agreements, specifically for failing to construct the water main and complete Ellis from Saddleback Lane to Edwards. 2. The City is suing the bonding company, Golden Eagle Insurance Company, for breach of the bond obligations. These bonds covered the Ellis Avenue improvements. 3. The City is suing Dahl for breach of the Acquisition Agreement under the McIlo- Roos district. This Agreement required Dahl to improve Elhs and Goldenwest, between Saddleback and Goldenwest. These are improvements that would prepare Landis' property for development. (However, neither Dahl's subdivision agreements nor Golden Eagle's bonds covered these additional improvements.) G:Closed:Iaustat:Dah10201 i27i99 - #3 Q 4. The City is suing William Landis for a declaratory relief action to determine what obligation the City has to expend the Mello -Roos money as between the Ellis Avenue improvements and those specifically benefiting Landis' property. Until recently, the chief obstacle in obtaining relief in this action has been that Golden Eagle Insurance Company was in conservatorship. Because David Dahl is unlikely to have the resources to complete the work and Golden Eagle was unavailable, it appeared that the City could win without actually recovering any money. However, Golden Eagle recently came out of consen-atorship, and the City has now been negotiating a settlement to the agreement. Simultaneously, Landis is currently selling his land to Heritage Homes. Heritage Homes has been conditioned to complete all the outstanding improvements to Saddleback Lane, Ellis Avenue and Goldenwest. Though the escrow for the sale has not yet closed, grading work has already begun so it appears certain that the escrow will close. In addition, there still remains over S200,000 in the Mello -Roos trust account that could be used for completing Ellis and for the Landis improvements. There is also the potential that the Mello -Roos District can be refinanced to produce an additional S 100.000 or more of revenue, which could be used for (i) the Ellis improvements, (ii) the Landis.%Goldenwest work, (iii) reducing the special taxes imposed on the property owners, and/or (iv) constructing other public improvements in the area. 2. DEFENDANT & CO-DEFENDANTS: David Dahl, The Dahl Company, Golden Eagle Insurance Company, William Landis 3. PLAINTIFF & CO -PLAINTIFFS: City of Huntington Beach 4. BEING HANDLED NTERNALLY OR EXTERNALLY: Internally by Scott Field 5. IN-HOUSE ATTORNEY LIAISON: NIA 6. OUTSIDE FIRM: NIA 7. FUNDS APPROVED BY COUNCIL TO COVER COSTS OF SUIT NIA (Appropriated from Risk Management Budget Litigation Defense Account #E-IC-AS-870-4-05-00) 8. FUNDS EXPENDED TO DATE: $5,000 9. AMOUNT OF ADDITIONAL FUNDS ANTICIPATED: S5,000 10. DATE SUIT FILED & COURT February 24, 1997 11. TRLAL DATE: April 12, 1999 G: CI osed:lawstat: DahI0201 1;27M - a3 12. ANTICIPATED DATE OF RESOLUTION OF SUIT: Trial 13. SETTLEMENT OFFER FROM DEFENDANT: Mandatory Settlement 14. IS OUT OF COURT SETTLEMENT LIKELY: 15. SETTLEMENT COMMITTEE AUTHORITY: 16. LIKELIHOOD OF WINNING SUIT: 17. FINANCIAL IMPACT IF WE WIN SUIT: 18. FINANCIAL IMPACT IF WE LOSE StiIT: 19. ARE PUNITIVE DAMAGES ALLEGED: 20. COMMENTS: 21. INTSURANCE. GAIL HUTTON, City Attorney c: Ray Silver, City Administrator Melanie Fallon, Assistant City Administrator Robert Beardsley, Director of Public Works Conference, Feb. 19, 1999. Yes Drone 75% $200,000 for Ellis; $350,000 for Goldemvest, but no bonds; plus attorneys fees. $0 No Bonds for Ellis Date: January 26, 1999 G:Closed: ]aµstat:Dahl0201 U27199 -.43 4 ATTACHMENT 5 AINICK & COTE 3105 TRUST ACCOUNT 190 NcVVPLRTENTER DR.. 2ND r'LR. 714-644.9400 'PORT ?EACH. CA 92660 April 27 .9 99 zz�c,� RAY TO THE The City of Huntington Beach ORDER OF 1 $ 32, 395. 64 Thirty two thousand three hundred ninety five & 64/cents**************** NE'.VPORT 6EAC-, .OccICR WELLS FARGO BANK FORent --------- -- — ----- "'' 111003 1050 1: 1 2 2000 2471:0643 1043750 Scott F. Field, Asa. 2000 main street P. 0. Box 190 Huntington Beach, CA 92648 Re: C�-v o= H>,n� rcton Beach et al. v David Dahl et al. Dear Mr. Field: Sainick & Cot&s ~ruse Account Check No. 3105 in the sum of $32,395.64, payable to the City of Huntington Deacn in reference to the settlement in the above -entitled action is enclosed. You are authorized to negotiate this instrument when the terms of the set. l ement. agreement have been fujly complied with. Sincerely, D A ct O �,;� Lance R. Cote 0"eI5t %m \K e A 327 Enclosure CC: Ronald Pierce, Esq. �--j� LUCE, FORWARD, HAMII T0N 6- SCRIPPS LLP A["rORNGY5 ,cr L.ml • FOUNDED IA73 ULR I'mE tiff. 253: iiH ,- I,-.\1Ali.A[)ISRI:SS: IffIS114:L: i E.::U\' N71A FEDEIZ-IL l--XPRI-SS May 6, 1999 -� I1Ir. \larl: Jacobs 11" Cot-an�= LJ 1-Ie6tage Communities . C; 5620 East Samiago Coun, Road ItC) m ;- C•ange, CA 92_869 � �- �` Re: CFD 1990-1: ACQuisi6on A�ireemenl Dear Mark: l nclosed phase find seven oriynds ofthe Acqlddon Agreement. Phase execute and initial where indicated and unmediately dehvcr the same to Scott Fields at the Cite of I-luntin'ton Beach - Of ice of Cite .Attorney, P.O. Box 190, 2000 Maki Sheet. I-Iiuning-ton Beach, CA 92648 via an overnight dchvery sen ice. If you have any questions, please givc me a call_ Sincerel��. C ' //. an C Fish for -- I_UCE, FORWARD, I-IANIII-TON SCR[PPS I -I -I' BCFAf 10closn-ns �-)uLn[ & Thdmmg UP 4/:!/99 5/5/99 ACQUISITION AGREEMENT by and between the CITY OF HUNTINGTON BEACH and GOLDENWEST PARTNERS, LLC, a California limited liability company Dated as of May 6,1999 CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT NO.1990-1 (GOLDENWESTIELLIS AREA) 08003.02. J3349 ACQUISITION AGREEMENT CITY OF I-iU:v-fL GTO;V BEACH COMMUNITY FACILITIES DISTRICT NO. 1990-1 (GOLDENWEST/ELLIS AREA) THIS AGREEMENT, dated as of May b, 1999, is by and between the City of Huntington Beach, a municipal corporation and a political subdivision of the State of California (the "City"), for the benefit of Community Facilities District No. 1990-1 (Goldenwest/Ellis Area) (the "District"), and Goldenwest Partners, LLC, a California limited liability company (the "Developer"). WHEREAS, the City Council at the City has established the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended, (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the "Act") to provide financing for, among other things, the public facilities described on Exhibit A attached hereto and by this reference incorporated herein (the "Facilities"); and WHEREAS, the Developer is an owner of land within the District and is developing single-family homes thereon; and WHEREAS, the Facilities are adjacent to said homes and the City will benefit from a common plan of construction of the Facilities and the homes; and WHEREAS, the Developer has expertise in the construction of homes and public facilities of the character of the Facilities; and WHEREAS, the City has determined that it will obtain no advantage from undertaking the construction of the Facilities pursuant to public bid and will realize economic benefit if the Developer constructs the Facilities as provided herein; and WHEREAS, the City has issued bonds for the District (the "Bonds") to finance the Facilities pursuant to the Act; and WHEREAS, the City has entered into a Settlement of Action and Release with William Landis and the Developer, and this Agreement has been entered into in furtherance of the provisions of said agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. $Qcitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. The Bands. The City has issued the Bonds in the initial principal amount of $2,400,000. 3. Co 121etion of the Facilities. The Developer reasonably expects to complete the Facilities and request payment therefor hereunder within four (4) months of the date of this Agreement. 4. $yfunding Bonds. The City may, in the future, issue bonds to refund the Bonds and,/or issue bonds to purchase the Bonds in lieu of the redemption of the Bonds. The Developer shall Ahave no rights to any proceeds of arty SULK bunk by reason of this Agreement or otherwise, or any right to participate in any way in the structuring of any such refinancing. 5. U5C Qf Boj3d Proceeds. The proceeds of the Bonds shall be deposited, held, invested, reinvested and disbursed as provided in the fiscal agent agreement, dated as of June 1, 1990 (the "Fiscal Agent Agreement") pursuant to which the Bonds were issued. $218,278.00 is currently on deposit in a separate improvement fund (the "Improvement Fund") under the Fiscal Agent Agreement, which are the sole monies available under this Agreement to pay the cost of the acquisition of the Facilities, as provided below, and such amount shall be used solely to make payments to the Developer of the acquisition prices of Facilities under and pursuant to the terms of this Agreement. :1 a. Plans --and Specifications: Preva�lg Wages. The Developer represents that it has obtained or will obtain approval by all appropriate City departments of the plans and specifications for the Facilities that are to be acquired by the City and that all of such Facilities have been or will be constructed by the Developer in full compliance with the current City standards applicable to the construction of public improvements and that all such Facilities that are purchased by the City with amounts in the Improvement Fund under this Agreement shall be constructed in compliance with any applicable law or regulation with respect to the payment of prevailing wages. The City and the Developer agree that the Facilities are of local, not statewide concern, and that the provisions of the Public Contracts Code shall not apply to the construction of the Facilities. The City and the Developer agree that this Agreement is necessary to assure timely and satisfactory completion of the Facilities and that compliance with the Public Contracts Code with respect to the Facilities would work an incongruity and would not produce an advantage to the City or the District. The Developer agrees to comply with all City or other applicable bonding requirements applicable to construction of the Facilities, and to provide the City Director of Public Works (all references herein to the City Director of Public Works include any official of the City acting in such capacity or any designee of the City Director of Public Works) with copies of any change orders relative to the construction of any Facilities to be acquired by the City and the plans and specifications therefor. The City hereby acknowledges that funds on deposit in the Improvement Fund will be considered the equivalent of a construction bond for a commensurate portion of the Purchase Price (as defined below) of the Facilities to be acquired with such funds. b. Purchase Pry. The amount to be paid by the City for the Facilities (hereafter the "Purchase Price" as to each such Facility), shall be determined by the City Director of Public Works and shall not exceed and shall be substantially the cost thereof, including the reasonable cost of appurtenant facilities and of preparing plans and specifications as well as the construction contracts and all costs of construction reasonably determined by the City Director of Public Works to be eligible under the Act to be part of the Purchase Price (said determination to be made consistent with the terms of this Agreement), such as fees and costs incurred in obtaining permits, licenses, rights of way or easements, the costs of change orders, engineering, legal, fiscal and inspection fees constituting a part of the public improvements. The Purchase Price may include a reasonable charge for contract administration by the Developer, not to exceed 4°0 of the related construction cost. The Developer shall provide any documentation substantiating the cost of the Facilities reasonably requested by the City Director of Public Works or the City Finance Director. There shall be a presumption of reasonableness as to costs incurred under a construction contract entered into as a result of a call for bids by the Developer, provided that no extraordinary limitations or requirements (such as short time frame) are imposed by the Developer on the performance of such contract. C. In.sl2ection and Acceptance. The Facilities to be acquired by the City, when fully completed, shall be accepted in accordance with adopted City policy, and the Purchase Price for each such Facility promptly paid from Bond proceeds if completed substantially in accordance with the approved plans and specifications for such Facilities and pursuant to the requirements of Section 53313.5 of the Act. The City shall accept no liability or responsibility for any such Facility or the maintenance thereof until all work with respect thereto has been completed to the satisfaction of the City Director of Public Works. Any Facilities to be acquired by other public agencies, shall be accepted subject to the relevant public agencies' policies and procedures. The Facilities shall be subject at all reasonable times prior to their acquisition to inspection by the City Director of Public Works, which inspection shall be accomplished in a timely manner. Prior to acceptance of any Facility by the City, the Developer shall provide as -built drawings or other similar plans and specifications of such Facility in the form required under City standards applicable to the construction of public improvements and otherwise by applicable law or regulation, along with evidence satisfactory to the City Director of Public Works that all costs of the Facility have been fully paid by the Developer to the party or parties entitled to be paid for such costs. The Developer shall obtain from any public agency (other than the City) acquiring a Facility a written statement to the effect that such Facility has been accepted by such public agency and all costs with respect thereto have been paid. All warranties, guarantees or other evidence of contingent obligations of third persons with respect to Facilities to be acquired by the City shall be delivered to the City Director of Public Works prior to acceptance thereof. If applicable, all documentation evidencing dedication and/or transfer of ownership of the Facilities shall be delivered to the City prior to the acceptance thereof and payment therefor, as further provided in Section 6e below. d. Pdy_MCntS tQ Developer. The Developer may request in writing a payment on the Purchase Price of any Facility described in Exhibit A hereto. Such payments shall be made only in the amount determined reasonable by the City Director of Public Works with respect to the Facility to be acquired, as specified in a cost certificate for each Facility or group of related Facilities completed by the City Director of Public Works, and in any event subject to the last paragraph of this Section 6.d. A ten percent retainage shall be held by the City in the Improvement Fund with respect to the cost of any Facility acquired by the City (no such retainage being required with respect to any Facility to be acquired by a public agency other than the City) pending final completion and acceptance of the related Facility and a one-year maintenance period for each such Facility. In lieu of such retainage, the Developer shall be permitted to provide to the City a letter of credit or performance bond in form and substance satisfactory to the City Director of Public Works and the City Finance Director. Any such Facility or portion thereof to be acquired by the City must be completed in accordance with the approved plans and specifications. Any Facility to be accepted by the City must be in such condition that it is ready for use by the City or the public as determined by the City Director of Public Works (said determination to be based on current City standards applicable to the construction of public improvements, wherever relevant). Any claim for a payment to the Developer from the $218,278.00 in the Improvement Fund shall be in a form acceptable to the City and include supporting documentation (including, with respect to any Facility to be acquired by a public agency other than the City, evidence that such agency has so accepted the Facility). The Director of Public Works shall review each claim for payment and inform the Developer, in writing, within 15 business days of receipt by the Director of Public Works of the claim and all supporting documentation, of the denial of any claim for payment in whole or in part, setting forth the reasons for such denial. The Developer shall be entitled to resubmit any claim or portion thereof so denied, if it is able to address the objections to such claim. The City shall make payment within forty-five (45) days of receipt of any claim or portion thereof which is not so denied, subject to the provisions of the last sentence of the next paragraph and the last paragraph of this Section 6.d. If requested by the City Director of Public Works, the Developer shall prepare and execute a Notice of Completion in form acceptable to the City Director of Public Works as to any Facility to be acquired by the City and record such notice with the office of the Recorder of the County of Orange, State of California and cause its contractor to provide general lien releases in form acceptable to the City Director of Public Works for such Facility. The City shall be entitled to delay payment to the Developer for any Facility to be acquired by the City until 35 days after a Notice of Completion with respect thereto has been so filed by the Developer. If any of the Facilities to be acquired hereunder were or are financed, in whole or in part, from the proceeds of any loan secured by a mortgage or deed of trust upon any lands within the District, and in the absence of contrary written instructions by any mortgagee or beneficiary of such mortgage or deed of trust, the Purchase Price shall be paid to the Developer and to such mortgagee or beneficiary, as their interests may appear. The Developer shalt provide evidence to the City Director of Public Works as to the source of funds, if any, to pay the costs of construction of the Facilities. Notwithstanding any other provision of this Agreement, the total payments by the City to the Developer under this Agreement (including any retainages described in the second paragraph of this Section 6.d.) shall not, in any event, exceed an aggregate of $218,278. e. QwnCrshj12 and Transfgr of Eacilities. The conveyance of any Facilities to be owned by a public agency other than the City, shall be in accordance with such agency's policies and procedures. The provision or conveyance to the City of any Facilities to be acquired by the City shall take place as follows: M L.andIFee- or -Ea semen t1. The Developer shall cause the owners of the real property within the District to transfer to the City the appropriate rights, title and interest in and to said land to be acquired. The Developer agrees to cause the owners of the real property within the District to execute and deliver to the City those documents required to complete the transfer of Acceptable Tide (as defined herein) to the land. Acceptable Tide means title to the land delivered free and clear of all liens, encumbrances, assessments, easements or leases, whether any such item is recorded or unrecorded, and taxes, except those matters which are determined by the City Director of Public Works in his reasonable discretion not to interfere with the intended use of the land and therefore are not required to be cleared from the tide. Completion of transfer shall be evidenced by the recordation of an acceptance of the interest(s) in the land by the City Council or their designee. (ii) Improvements Constructed on Land Owned by Property Owners. If Facilities to be acquired by the City are located on land which is -ow ned by the owners of the real property within the District, then such property owners shall retain the title to said land and the improvements constructed thereon until the land and improvements are acquired by the City pursuant to the provision of this Agreement. Until title to the land and the Facilities are acquired by the City, the Developer shall maintain the land and improvements in good and safe condition. Transfer of title to the land and the Facilities thereon shall be in accordance with clause (i) above. (iii) Improements_Constructed on Land Owned by City -in Fee_ or EaseMent. If Facilities to be acquired by the City are on land on which the City holds fee title or easement rights, the Developer is hereby granted a license to enter said land for purposes related to the construction and maintenance (prior to acquisition by the City hereunder) of the said improvements. Upon completion of construction of any such Facility, the City Director of Public Works shall inspect the improvements m accordance with City standards applicable to the construction of public improvements, and if approved by the City Director of Public Works, the City shall give written notice of its acceptance of the Facility. (iv) Personal Prol2crty. If the Developer provides any personal property identified on Exhibit A hereto, transfer by the Developer to the City shall be accomplished by a bill of sale. (v) Funds. If the Developer provides funds for Facilities, the provision of such funds to the City shall be acknowledged with a written receipt from the Finance Director. f. Pgyment Qf Exress Costs. The Developer hereby agrees to pay all costs of the Facilities in excess of the proceeds of the Bonds available therefore in the Improvement Fund established under the Fiscal Agent Agreement. 7. Indemnification and Hold Harmless. The Developer shall defend, hold harmless and indemnify the City and its elective and appointive boards, commissions, its officers, agents and employees and agents, against any liability or claim for damage of any kind allegedly suffered, incurred or threatened, including personal injury, death, property damage, inverse condemnation, or any combination of these, and resulting from any act or omission (negligent or non -negligent) in connection with the matters covered by this Agreement, but save and except those that arise from the sole active negligence or willful misconduct of City. The promise and agreement in this Section are not conditioned or dependent on whether or not the City has prepared, supplied, or reviewed any plan(s) or specification(s) in connection with the Facilities, or has insurance or other indemnification covering any of these matters. 8. Audit. The City Director of Public Works and Finance Director shall have the right, during normal business hours and upon the giving of ten days written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer in constructing any of the Facilities. 9. Relationship to Public Works. The parties hereto agree that this Agreement is for the acquisition of certain public facilities by the City from the proceeds of the sale of the Bonds 5 deposited in the Improvement Fund and is not, nor is it intended to be, a public works contract. In performing this Agreement, the Developer is an independent contractor and not the agent of the Citv or the District. Neither the City nor the District shall have responsibility for payrnejit to any contractor or supplier of the Developer. All contracts related to the construction of the Facilities, and all change orders related thereto, shall be submitted to the City Director of Public Works for review and approval as to cost, and quantity and quality of work. Unless the City Director of Public Works submits a written denial of approval of any contract or change order to the Developer (stating the reasons therefor) within 15 business days of receipt by the City Director of Public Works of the contract or change order, the City Director of Public Works shall be deemed to have approved the contract or change order with respect to cost. 10. Attorney',,i-Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 11. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified mail, postage prepaid, addressed as follows: Developer: Goldenwest Partners, LLC 5620 East Santiago Canyon Road Orange, California 92869 Attention: President with a copy to: Luce, Forward, Hamilton & Scripps, LLP 600 West Broadway, Suite 2600 San Diego, California 92101 Attention: Brian C. Fish, Esq. City or District: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Finance Director with a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Director of Public Works and a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: City Attorney Each party may change its address or addresses for delivery of notice by delivering written notice of such change of address to the other party. 12. Spvgrability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 13. Successors and Assigns, This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreenent may not be assigned by the Developer without the prior written consent of the City. In connection with any such consent of the City, the City may condition its consent upon the acceptability of the financial condition of the proposed assignee and upon any other factor which the City deems relevant in the circumstances. 14. Limited Lbbility. Any and atl obligations of the City arising out of or related to this Agreement are the special and limited obligations of the City, in any event payable only from the $218,278 on deposit in the Improvement Fund described in Section 5 and the last paragraph of Section 6 hereof. In no event shall the City be obligated to advance any of its own funds hereunder, except pursuant to the provisions of Section 10 hereof. No Councilmember, staff member or agent of the City shall incur any liability hereunder to the Developer or any other patty in their individual capacities by reason of their actions hereunder or execution hereunder. 15. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 17. AmendMents. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first -above written. ATTEST: City Clerk 09003-0244349 CITY OF HUNTINGTON BEACH, for itself and on behalf of COMMUNITY FACILITIES DISTRICT NO. 1990-1 (Goldenwest/Ellis Area) By: Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INC., a California Corporation, Its Managing Membe By: Mark JaVI, President APPROVED AS TO FORM: Brian ish fo Luce, Forward, to & Sc pps, LLP Its Attorne ecord EXHIBFF A LIST OF FACILITIES TO BE ACQUIRED 1. Installation of reclaimed water system on His Avenue, including, a new 12" subpotable water pipeline in Ellis Avenue from the connection at the existing 12" subpotable line to Goldenwest Street to the connection point in Saddleback Lane. �} 2. Improvements to Ellis Avenue to the centerline to City Standards, including lowering/relocation of any interfering oil/fuel lines and existing utility relocation/modification necessary to install said improvements 3. Design and construction of signing and striping on Ellis Avenue in accordance with Public Works Standards and Ellis Goldenwest Specific Plan. A-1 Qsint do T.^ammig LLP d/31/99 5/5!99 ACQUISITION AGREEMENT by and between the CITY OF HUNTINGTON BEACH and GOLDENWEST PARTNERS, LLC, a California limited liability company Dated as of May 6,1999 CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT NO.1990-1 (GOLDENWESWELLIS AREA) 08003.02_ 4349 ACQUISITION AGREEMENT CITY OF HUNU GTON BEACH COMMUNITY FACILITIES DISTRICT NO. 1990-1 (GOLDENWEST/ELLIS AREA) THIS AGREEMENT, dated as of May 6, 1999, is by and between the City of Huntington Beach, a municipal corporation and a political subdivision of the State of California (the "City"), for the benefit of Community Facilities District No. 1990-1 (Goldenwest/Ellis Area) (the "District"), and Goldenwest Partners, LLC, a California limited liability company (the "Developer"). WHEREAS, the City Council at the City has established the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended, (commencing with Section 53311) of Part 1 of Division 2 of Title S of the California Government Code (the "Act") to provide financing for, among other things, the public facilities described on Exhibit A attached hereto and by this reference incorporated herein (the "Facilities"); and WHEREAS, the Developer is an owner of land within the District and is developing single-family homes thereon; and WHEREAS, the Facilities are adjacent to said homes and the City will benefit from a common plan of construction of the Facilities and the homes; and WHEREAS, the Developer has expertise in the construction of homes and public facilities of the character of the Facilities; and WHEREAS, the City has determined that it will obtain no advantage from undertaking the construction of the Facilities pursuant to public bid and will realize economic benefit if the Developer constructs the Facilities as provided herein; and WHEREAS, the City has issued bonds for the District (the "Bonds") to finance the Facilities pursuant to the Act; and WHEREAS, the City has entered into a Settlement of Action and Release with William Landis and the Developer, and this Agreement has been entered into in furtherance of the provisions of said agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. The Bonda. The City has issued the Bonds in the initial principal amount of $2,400,000. 3. Completion of the Facilities. The Developer reasonably expects to complete the Facilities and request payment therefor hereunder within four (4) months of the date of this Agreement. 4. Refunding Bgnds. The City may, in the future, issue bonds to refund the Bonds and /nr issue bonds to purchase the Bonds in lieu of the redemption of the Bonds. The Developer shall have no rights to any proceeds of arty yuc.li bonds by reason of this Agreement or otherwise, or any right to participate in any way in the structuring of any such refinancing. S. Use of Bond Eroceeds. The proceeds of the Bonds shall be deposited, held, invested, reinvested and disbursed as provided in the fiscal agent agreement, dated as of June 1, 1990 (the "Fiscal Agent Agreement") pursuant to which the Bonds were issued. $218,278.00 is currently on deposit in a separate improvement fund (the "Improvement Fund") under the Fiscal Agent Agreement, which are the sole monies available under this Agreement to pay the cost of the acquisition of the Facilities, as provided below, and such amount shall be used solely to make payments to the Developer of the acquisition prices of Facilities under and pursuant to the terms of this Agreement. 1.9 a. Plans and Specifications:. er vail(j2g Wages. The Developer represents that it has obtained or will obtain approval by all appropriate City departments of the plans and specifications for the Facilities that are to be acquired by the City and that all of such Facilities have been or will be constructed by the Developer in full compliance with the current City standards applicable to the construction of public improvements and that all such Facilities that are purchased by the City with amounts in the Improvement Fund under this Agreement shall be constructed in compliance with any applicable law or regulation with respect to the payment of prevailing wages. The City and the Developer agree that the Facilities are of Iocal, not statewide concern, and that the provisions of the Public Contracts Code shall not apply to the construction of the Facilities. The City and the Developer agree that this Agreement is necessary to assure timely and satisfactory completion of the Facilities and that compliance with the Public Contracts Code with respect to the Facilities would work an incongruity and would not produce an advantage to the City or the District. The Developer agrees to comply with all City or other applicable bonding requirements applicable to construction of the Facilities, and to provide the City Director of Public Works (all references herein to the City Director of Public Works include any official of the City acting in such capacity or any designee of the City Director of Public Works) with copies of any change orders relative to the construction of any Facilities to be acquired by the City and the plans and specifications therefor. The City hereby acknowledges that funds on deposit in the Improvement Fund will be considered the equivalent of a construction bond for a commensurate portion of the Purchase Price (as defined below) of the Facilities to be acquired with such funds. b. Purchase 'rice. The amount to be paid by the City for the Facilities (hereafter the "Purchase Price" as to each such Facility), shall be determined by the City Director of Public Works and shall not exceed and shall be substantially the cost thereof, including the reasonable cost of appurtenant facilities and of preparing plans and specifications as well as the construction contracts and all costs of construction reasonably determined by the City Director of Public Works to be eligible under the Act to be part of the Purchase Price (said determination to be made consistent with the terms of this Agreement), such as fees and costs incurred in obtaining permits, licenses, rights of way or easements, the costs of change orders, engineering, legal, fiscal and inspection fees constituting a part of the public improvements. The Purchase Price may include a reasonable charge for contract administration by the Developer, not to exceed 4% of the related construction cost. 2 The Developer shall provide any documentation substantiating the cost of the Facilities reasonably requested by the City Director of Public Works or. the City Finance Director. There shall be a presuniptioii of reasonableness as to costs incurred under a construction contract entered into as a result of a call for bids by the Developer, provided that no extraordinary limitations or requirements (such as short time frame) are imposed by the Developer on the performance of such contract. C. InspeCtion and Acceptaljcg. The Facilities to be acquired by the City, when fully completed, shall be accepted in accordance with adopted City policy, and the Purchase Price for each such Facility promptly paid from Bond proceeds if completed substantially in accordance with the approved plans and specifications for such Facilities and pursuant to the requirements of Section 53313.5 of the Act. The City shall accept no liability or responsibility for any such Facility or the maintenance thereof until all work with respect thereto has been completed to the satisfaction of the City Director of Public Works. Any Facilities to be acquired by other public agencies, shall be accepted subject to the relevant public agencies' policies and procedures. The Facilities shall be subject at all reasonable times prior to their acquisition to inspection by the City Director of Public Works, which inspection shall be accomplished in a timely manner. Prior to acceptance of any Facility by the City, the Developer shall provide as -built drawings or other similar plans and specifications of such Facility in the form required under City standards applicable to the construction of public improvements and otherwise by applicable law or regulation, along with evidence satisfactory to the City Director of Public Works that all costs of the Facility have been fully paid by the Developer to the party or parties entitled to be paid for such costs. The Developer shall obtain from any public agency (other than the City) acquiring a Facility a written statement to the effect that such Facility has been accepted by such public agency and all costs with respect thereto have been paid. All warranties, guarantees or other evidence of contingent obligations of third persons with respect to Facilities to be acquired by the City shall be delivered to the City Director of Public Works prior to acceptance thereof. If applicable, all documentation evidencing dedication and/or transfer of ownership of the Facilities shall be delivered to the City prior to the acceptance thereof and payment therefor, as further provided in Section 6e below. d. Payments to Developer. The Developer may request in writing a payment on the Purchase Price of any Facility described in Exhibit A hereto. Such payments shall be made only in the amount determined reasonable by the City Director of Public Works with respect to the Facility to be acquired, as specified in a cost certificate for each Facility or group of related Facilities completed by the City Director of Public Works, and in any event subject to the last paragraph of this Section 6.d. A ten percent retainage shall be held by the City in the Improvement Fund with respect to the cost of any Facility acquired by the City (no such retainage being required with respect to any Facility to be acquired by a public agency other than the City) pending final completion and acceptance of the related Facility and a one-year maintenance period for each such Facility. In lieu of such retainage, the Developer shall be permitted to provide to the City a letter of credit or performance bond in form and substance satisfactory to the City Director of Public Works and the City Finance Director. Any such Facility or portion thereof to be acquired by the City must be completed in accordance with the approved plans and specifications. Any Facility to be accepted by the City must be in such condition that it is ready for use by the City or the public as determined by the City Director of Public Works (said determination to be 3 based on current City standards applicable to the construction of public improvements, wherever relevant). Any claim for a payment to the Developer from the $218,278.00 in the Improvement Fund shall be in a form acceptable to the City and include supporting documentation (including, with respect to any Facility to be acquired by a public agency other than the City, evidence that such agency has so accepted the Facility). The Director of Public Works shall review each claim for payment and inform the Developer, in writing, within 15 business days of receipt by the Director of Public Works of the claim and all supporting documentation, of the denial of any claim for payment in whole or in part, setting forth the reasons for such denial. The Developer shall be entitled to resubmit any claim or portion thereof so denied, if it is able to address the objections to such claim. The City shall make payment within forty-five (45) days of receipt of any claim or portion thereof which is not so denied, subject to the provisions of the last sentence of the next paragraph and the last paragraph of this Section 6.d. If requested by the City Director of Public Works, the Developer shall prepare and execute a Notice of Completion in form acceptable to the City Director of Public Works as to any Facility to be acquired by the City and record such notice with the office of the Recorder of the County of Orange, State of California and cause its contractor to provide general lien releases in form acceptable to the City Director of Public Works for such Facility. The City shall be entitled to delay payment .to the Developer for any Facility to be acquired by the City until 35 days after a Notice of Completion with respect thereto has been so filed by the Developer. If any of the Facilities to be acquired hereunder were or are financed, in whole or in part, from the proceeds of any loan secured by a mortgage or deed of trust upon any lands within the District, and in the absence of contrary written instructions by any mortgagee or beneficiary of such mortgage or deed of trust, the Purchase Price shall be paid to the Developer and to such mortgagee or beneficiary, as their interests may appear. The Developer shall provide evidence to the City Director of Public Works as to the source of funds, if any, to pay the costs of construction of the Facilities. Notwithstanding any other provision of this Agreement, the total payments by the City to the Developer under this Agreement (including any retainages described in the second paragraph of this Section 64) shall not, in any event, exceed an aggregate of $218,278. e. Ownersbip and Transfer of Facilities. The conveyance of any Facilities to be owned by a public agency other than the City, shall be in accordance with such agency's policies and procedures. The provision or conveyance to the City of any Facilities to be acquired by the City shall take place as follows: M Land (Fee or Easement). The Developer shall cause the owners of the real property within the District to transfer to the City the appropriate rights, title and interest in and to said land to be acquired. The Developer agrees to cause the owners of the real property within the District to execute and deliver to the City those documents required to complete the transfer of Acceptable Tide (as defined herein) to the land. Acceptable Tide means title to the land delivered free and clear of all liens, encumbrances, assessments, easements or leases, whether any such item is recorded or unrecorded, and taxes, except those matters which are determined by the City Director of Public Works in his reasonable discretion not to interfere with the intended use of the land and therefore are not required to be cleared from the tide. Completion of transfer shall be evidenced by the recordation of an acceptance of the interest(s) in the land by the City Council or their designee. (ii) Improvements CQaanucted on Land Owned by Property Owners. If Facilities to be acquired by the City are located on land which is owned by the owners of the real property within the District, then such property owners shall retain the title to said land and the improvements constructed thereon until the land and improvements are acquired by the City pursuant to the provision of this Agreement. Until title to the land and the Facilities are acquired by the City, the Developer shall maintain the land and improvements in good and safe condition. Transfer of title to the land and the Facilities thereon shall be in accordance with clause (i) above. Gii) Improvements Land Owned by City in Fee or Basement. If Facilities to be acquired by the City are on land on which the City holds fee title or easement rights, the Developer is hereby granted a license to enter said land for purposes related to the construction and maintenance (prior to acquisition by the City hereunder) of the said improvements. Upon completion of construction of any such Facility, the City Director of Public Works shall inspect the improvements m accordance witl City standards applicable to the construction of public improvements, and if approved by the City Director of Public Works, the City shall give written notice of its acceptance of the Facility. (iv) Personal Eroverty. If the Developer provides any personal property identified on Exhibit A hereto, transfer by the Developer to the City shall be accomplished by a bill of sale. (v) Eunds. If the Developer provides funds for Facilities, the provision of such funds to the City shall be acknowledged with a written receipt from the Finance Director. f. Pavm,_ ent of excess Costs. The Developer hereby agrees to pay all costs of the Facilities in excess of the proceeds of the Bonds available therefore in the Improvement Fund established under the Fiscal Agent Agreement. 7. Indemnificgtion and,Hold Harmless. The Developer shall defend, hold harmless and indemnify the City and its elective and appointive boards, commissions, its officers, agents and employees and agents, against any liability or claim for damage of any kind allegedly suffered, incurred or threatened, including personal injury, death, property damage, inverse condemnation, or any combination of these, and resulting from any act or omission (negligent or non -negligent) in connection with the matters covered by this Agreement, but save and except those that arise from the sole active negligence or willful misconduct of City. The promise and agreement in this Section are not conditioned or dependent on whether or not the City has prepared, supplied, or reviewed any plan(s) or specification(s) in connection with the Facilities, or has insurance or other indemnification covering any of these matters. 8. IL". The City Director of Public Works and Finance Director shall have the right, during normal business hours and upon the giving of ten days written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer in constructing any of the Facilities. 9. Relationship to Public Works. The parties hereto agree that this Agreement is for the acquisition of certain public facilities by the City from the proceeds of the sale of the Bonds deposited in the Improvement Fund and is not, nor is it intended to be, a public works contract. In performing this Agreement, the Developer is an independent contractor and not the agent of the City or the District. Neither the City nor the District shall have responsibility for payment to any contractor or supplier of the Developer. All contracts related to the construction of the Facilities, and all change orders related thereto, shall be submitted to the Cit<, Director of Public Works for review and approval as to cost, and quantity and quality of work. Unless the City Director of Public Works submits a written denial of approval of any contract or change order to the Developer (stating the reasons therefor) within 15 business days of receipt by the City Director of Public Works of the contract or change order, the City Director of Public Works shall be deemed to have approved the contract or change order with respect to cost. 10. Atl rngv's .Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 11. Notice . Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified mail, postage prepaid, addressed as follows: Developer: Goldenwest Partners, LLC 5620 East Santiago Canyon Road Orange, California 92869 Attention: President with a copy to: Luce, Forward, Hamilton & Scripps, LLP 600 West Broadway, Suite 2600 San Diego, California 92101 Attention: Brian C. Fish, Esq. City or District: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Finance Director with a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Director of Public Works and a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: City Attorney Each party may change its address or addresses for delivery of notice by delivering written notice of such change of address to the other party. 12. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 13. SuccCssors a0d Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement may not be assigned by the Developer without the prior written consent of the City. In connection with any such consent of the City, the City may condition its consent upon the acceptability of the financial condition of the proposed assignee and upon any other factor which the City deems relevant in the circumstances. 14. Limi.1gd Liability. Any and all obligations of the City arising out of or related to this Agreement are the special and limited obligations of the City, in any event payable only from the $218,278 on deposit in the Improvement Fund described in Section 5 and the last paragraph of Section 6 hereof. In no event shall the City be obligated to advance any of its own funds hereunder, except pursuant to the provisions of Section 10 hereof. No Councilmember, staff member or agent of the City shall incur any liability hereunder to the Developer or any other patty in their individual capacities by reason of their actions hereunder or execution hereunder. 15. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 17. Amendments. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 7 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first -above written. ATTEST: City Clerk 08003.02:J4349 CITY OF HUNTINGTON BEACH, for itself and on behalf of CO:1v1MUNITY FACILITIES DISTRICT NO. 1990-1 (Goldenw Ellis Area) By: Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INC., a California Corporation, Its Managing Member By: Mark Jac6K President APPROVED AS TO FORM: Bria . Fisy for Luce, Forward, Hami on Scripps, LLP Its Attorney of Record EXHIBIT A LIST OF FACILITIES TO BE ACQUIRED 1. InstalIation of reclaimed water system on Ellis Avenue, including, a new 12" subpotable water pipeline in Ellis Avenue from the connection at the existing 12" subpotable line to Goldenwest Street to the connection point in Saddleback Lane. 2. Improvements to Ellis Avenue to the centerline to City Standards, including lowering/relocation of any interfering oil/fuel lines and existing utility relocation/modification necessary to install said improvements. tiC� �r 3. Design and construction of signing and striping on Ellis Avenue in accorda ce with Public Works Standards and Ellis Goldenwest Specific Plan. ►:Qii Quint At Punurig LLP � .Ova 4i21i99 5/5/99 ACQUISITION AGREEMENT by and between the CITY OF HUNTINGTON BEACH and GOLDENWEST PARTNERS, LLC, a California limited liability company Dated as of May 6,1999 CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT NO.1990-1 (GOLDENWESTiELLIS AREA) 08003.02. J4349 ACQUISITION AGREEMENT Ci T Y OF HU\7ING T ON BEACH COMMUNITY FACILITIES DISTRICT NO. 1990-1 (GOLDENWEST/ELLIS AREA) THIS AGRE&WENT, dated as of May 6, 1999, is by and between the City of Huntington Beach, a municipal corporation and a political subdivision of the State of California (the "City"), for the benefit of Community Facilities District No. 1990-1 (Goldenwest/Ellis Area) (the "District'), and Goldenwest Partners, LLC, a California limited liability company (the "Developer"). WHEREAS, the City Council at the City has established the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended, (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the "Act") to provide financing for, among other things, the public facilities described on Exhibit A attached hereto and by this reference incorporated herein (the "Facilities"); and WHEREAS, the Developer is an owner of land within the District and is developing single-family homes thereon; and WHEREAS, the Facilities are adjacent to said homes and the City will benefit from a common plan of construction of the Facilities and the homes; and WHEREAS, the Developer has expertise in the construction of homes and public facilities of the character of the Facilities; and WHEREAS, the City has determined that it will obtain no advantage from undertaking the construction of the Facilities pursuant to public bid and will realize economic benefit if the Developer constructs the Facilities as provided herein; and WHEREAS, the City has issued bonds for the District (the "Bonds") to finance the Facilities pursuant to the Act; and WHEREAS, the City has entered into a Settlement of Action and Release with William Landis and the Developer, and this Agreement has been entered into in furtherance of the provisions of said agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. the ^Bonds. The City has issued the Bonds in the initial principal amount of $2,400,000, 3. CompIto ion of the FaCilities. The Developer reasonably expects to complete the Facilities and request payment therefor hereunder within four (4) months of the date of this Agreement. 4. $gfunding Bonds. The City may, in the future, issue bonds to refund the Bonds and /nr issue bonds to purchase the Bonds in lieu of the redemption of the Bonds. The Dcvclope: shall have no rights to any proceeds Of aILV suet bonds by reason of this Agreement or otherwise, or any right to participate in any way in the structuring of any such refinancing. 5. Use of Bond Eroceeds. The proceeds of the Bonds shall be deposited, held, invested, reinvested and disbursed as provided in the fiscal agent agreement, dated as of June 1, 1990 (the "Fiscal Agent Agreement") pursuant to which the Bonds were issued. $218,278.00 is currently on deposit in a separate improvement fund (the "Improvement Fund") under the Fiscal Agent Agreement, which are the sole monies available under this Agreement to pay the cost of the acquisition of the Facilities, as provided below, and such amount shall be used solely to make payments to the Developer of the acquisition prices of Facilities under and pursuant to the terms of this Agreement. a. Plans and Specifications, Prevailing Wages. The Developer represents that it has obtained or will obtain approval by all appropriate City departments of the plans and specifications for the Facilities that are to be acquired by the City and that all of such Facilities have been or will be constructed by the Developer in full compliance with the current City standards applicable to the construction of public improvements and that all such Facilities that are purchased by the City with amounts in the Improvement Fund under this Agreement shall be constructed in compliance with any applicable law or regulation with respect to the payment of prevailing wages. The City and the Developer agree that the Facilities are of local, not statewide concern, and that the provisions of the Public Contracts Code shall not apply to the construction of the Facilities. The City and the Developer agree that this Agreement is necessary to assure timely and satisfactory completion of the Facilities and that compliance with the Public Contracts Code with respect to the Facilities would work an incongruity and would not produce an advantage to the City or the District. The Developer agrees to comply with all City or other applicable bonding requirements applicable to construction of the Facilities, and to provide the City Director of Public Works (all references herein to the City Director of Public Works include any official of the City acting in such capacity or any designee of the City Director of Public Works) with copies of any change orders relative to the construction of any Facilities to be acquired by the City and the plans and specifications therefor. The City hereby acknowledges that funds on deposit in the improvement Fund will be considered the equivalent of a construction bond for a commensurate portion of the Purchase Price (as defined below) of the Facilities to be acquired with such funds. b. Purchase Prise. The amount to be paid by the City for the Facilities (hereafter the "Purchase Price" as to each such Facility), shall be determined by the City Director of Public Works and shall not exceed and shall be substantially the cost thereof, including the reasonable cost of appurtenant facilities and of preparing plans and specifications as well as the construction contracts and all costs of construction reasonably determined by the City Director of Public Works to be eligible under the Act to be part of the Purchase Price (said determination to be made consistent with the terms of this Agreement), such as fees and costs incurred in obtaining permits, licenses, rights of way or easements, the costs of change orders, engineering, legal, fiscal and inspection fees constituting a part of the public improvements. The Purchase Price may include a reasonable charge for contract administration by the Developer, not to exceed 4% of the related construction cost. The Developer shall provide any documentation substantiating the cost of the Facilities reasonably requested by the City Director of Public Works or the City Finance Director. There shall be a presumption of reasonableness as to costs incurred under a construction contract entered into as a result of a call for bids by the Developer, provided that no extraordinary limitations or requirements (such as short time frame) are imposed by the Developer on the performance of such contract. C. Inspection and Acceptance. The Facilities to be acquired by the City, when fully completed, shall be accepted in accordance with adopted City policy, and the Purchase Price for each such Facility promptly paid from Bond proceeds if completed substantially in accordance with the approved plans and specifications for such Facilities and pursuant to the requirements of Section 53313.5 of the Act. The City shall accept no liability or responsibility for any such Facility or the maintenance thereof until all work with respect thereto has been completed to the satisfaction of the City Director of Public Works. Any Facilities to be acquired by other public agencies, shall be accepted subject to the relevant public agencies' policies and procedures. The Facilities shall be subject at all reasonable times prior to their acquisition to inspection by the City Director of Public Works, which inspection shall be accomplished in a timely manner. Prior to acceptance of any Facility by the City, the Developer shall provide as -built drawings or other similar plans and specifications of such Facility in the form required under City standards applicable to the construction of public improvements and otherwise by applicable law or regulation, along with evidence satisfactory to the City Director of Public Works that all costs of the Facility have been fully paid by the Developer to the party or parties entitled to be paid for such costs. The Developer shall obtain from any public agency (other than the City) acquiring a Facility a written statement to the effect that such Facility has been accepted by such public agency and all costs with respect thereto have been paid. All warranties, guarantees or other evidence of contingent obligations of third persons with respect to Facilities to be acquired by the City shall be delivered to the City Director of Public Works prior to acceptance thereof. If applicable, all documentation evidencing dedication and/or transfer of ownership of the Facilities shall be delivered to the City prior to the acceptance thereof and payment therefor, as further provided in Section 6e below. d. Ea=ents to Developer. The Developer may request in writing a payment on the Purchase Price of any Facility described in Exhibit A hereto. Such payments shall be made only in the amount determined reasonable by the City Director of Public Works with respect to the Facility to be acquired, as specified in a cost certificate for each Facility or group of related Facilities completed by the City Director of Public Works, and in any event subject to the last paragraph of this Section 6.d. A ten percent retainage shall be held by the City in the Improvement Fund with respect to the cost of any Facility acquired by the City (no such retainage being required with respect to any Facility to be acquired by a public agency other than the City) pending final completion and acceptance of the related Facility and a one-year maintenance period for each such Facility. in lieu of such retainage, the Developer shall be permitted to provide to the City a letter of credit or performance bond in form and substance satisfactory to the City Director of Public Works and the City Finance Director. Any such Facility or portion thereof to be acquired by the City must be completed in accordance with the approved plans and specifications. Any Facility to be accepted by the City must be in such condition that it is ready for use by the City or the public as determined by the City Director of Public Works (said determination to be 3 based on current City standards applicable to the construction of public improvements, wherever relevant). Any claim for a payment to the Developer from the $218,278.00 in the Improvement Fund shall be in a form acceptable to the City and include supporting documentation (including, with respect to any Facility to be acquired by a public agency other than the City, evidence that such agency has so accepted the Facility). The Director of Public Works shall review each claim for payment and inform the Developer, in writing, within 15 business days of receipt by the Director of Public Works of the claim and all supporting documentation, of the denial of any claim for payment in whole or in part, setting forth the reasons for such denial. The Developer shall be entitled to resubmit any claim or portion thereof so denied, if it is able to address the objections to such claim. The City shall make payment within forty-five (45) days of receipt of any claim or portion thereof which is not so denied, subject to the provisions of the last sentence of the next paragraph and the last paragraph of this Section 6.d. If requested by the City Director of Public Works, the Developer shall prepare and execute a Notice of Completion in form acceptable to the City Director of Public Works as to any Facility to be acquired by the City and record such notice with the office of the Recorder of the County of Orange, State of California and cause its contractor to provide general lien releases in form acceptable to the City Director of Public Works for such Facility. The City shall be entitled to delay payment to the Developer for any Facility to be acquired by the City until 35 days after a Notice of Completion with respect thereto has been so filed by the Developer. If any of the Facilities to be acquired hereunder were or are financed, in whole or in part, from the proceeds of any loan secured by a mortgage or deed of trust upon any lands within the District, and in the absence of contrary written instructions by any mortgagee or beneficiary of such mortgage or deed of trust, the Purchase Price shall be paid to the Developer and to such mortgagee or beneficiary, as their interests may appear. The Developer shall provide evidence to the City Director of Public Works as to the source of funds, if any, to pay the costs of construction of the Facilities. Notwithstanding any other provision of this Agreement, the total payments by the City to the Developer under this Agreement (including any retainages described in the second paragraph of this Section 6.d.) shall not, in any event, exceed an aggregate of $218,278. e. Ownership and Transfer of Facilities. The conveyance of any Facilities to be owned by a public agency other than the City, shall be in accordance with such agency's policies and procedures. The provision or conveyance to the City of any Facilities to be acquired by the City shall take place as follows: (i) Land (Fee or Easemgnt). The Developer shall cause the owners of the real property within the District to transfer to the City the appropriate rights, title and interest in and to said land to be acquired. The Developer agrees to cause the owners of the real property within the District to execute and deliver to the City those documents required to complete the transfer of Acceptable Tide (as defined herein) to the land. Acceptable Tide means title to the land delivered free and clear of all liens, encumbrances, assessments, easements or leases, whether any such item is recorded or unrecorded, and taxes, except those matters which are determined by the City Director of Public Works in his reasonable discretion not to interfere with the intended use of the land and therefore are not required to be cleared from the tide. Completion of transfer 4 shall be evidenced by the recordation of an acceptance of the interest(s) in the land by the City Council or their designee. (ii) Improvements Constructed on Land Owned by Proper Owners. If Facilities to be acquired by the City are located on land which is owned by the owners of the real property within the District, then such property owners shall retain the title to said land and the improvements constructed thereon until the land and improvements are acquired by the City pursuant to the provision of this Agreement. until title to the land and the Facilities are acquired by the City, the Developer shall maintain the land and improvements in good and safe condition. Transfer of title to the land and the Facilities thereon shall be in accordance with clause (i) above. (iii) Improvements Cons tructgd on Land Qryngd by City i Fee Qr Easement. If Facilities to be acquired by the City are on land on which the City holds fee title or easement rights, the Developer is hereby granted a license to enter said land for purposes related to the construction and maintenance (prior to acquisition by the City hereunder) of the said improvements. Upon completion of construction of any such Facility, the City Director of Public Works shall inspect the improvements m accordance with City standards applicable to the construction of public improvements, and if approved by the City Director of Public Works, the City shall give written notice of its acceptance of the Facility. (iv) Personal Property. if the Developer provides any personal property identified on Exhibit A hereto, transfer by the Developer to the City shall be accomplished by a bill of sale. (v) Funds. if the Developer provides funds for Facilities, the provision of such funds to the City shall be acknowledged with a written receipt from the Finance Director. f. Payment of Excess Costs. The Developer hereby agrees to pay all costs of the Facilities in excess of the proceeds of the Bonds available therefore in the Improvement Fund established under the Fiscal Agent Agreement. 7. Indemni&ation and Hold -Harmless. The Developer shall defend, hold harmless and indemnify the City and its elective and appointive boards, commissions, its officers, agents and employees and agents, against any liability or claim for damage of any kind allegedly suffered, incurred or threatened, including personal injury, death, property damage, inverse condemnation, or any combination of these, and resulting from any act or omission (negligent or non -negligent) in connection with the matters covered by this Agreement, but save and except those that arise from the sole active negligence or willful misconduct of City. The promise and agreement in this Section are not conditioned or dependent on whether or not the City has prepared, supplied, or reviewed any plan(s) or specification(s) in connection with the Facilities, or has insurance or other indemnification covering any of these matters. 8. Ate. The City Director of Public Works and Finance Director shall have the right, during normal business hours and upon the giving of ten days written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer in constructing any of the Facilities. 9. Relationship to Public Works. The parties hereto agree that this Agreement is for the acquisition of certain public facilities by the City from the proceeds of the sale of the Bonds deposited in the Improvement Fund and is not, nor is it intended to be, a public works contract. In performing this Agreement, the Developer is an independent contractor and not the agent of the City or the District. Neither the City nor the District shall have responsibility for payrrler►t to any contractor or supplier of the Developer. All contracts related to the construction of the Facilities, and all change orders related thereto, shall be submitted to the City Director of Public Works for review and approval as to cost, and quantity and quality of work. Unless the City Director of Public Works submits a written denial of approval of any contract or change order to the Developer (stating the reasons therefor) within 15 business days of receipt by the City Director of Public Works of the contract or change order, the City Director of Public Works shall be deemed to have approved the contract or change order with respect to cost. 10. Attorney's Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 11. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified mail, postage prepaid, addressed as follows: Developer: Goldenwest Partners, LLC 5620 East Santiago Canyon Road Orange, California 92869 Attention: President with a copy to: Luce, Forward, Hamilton & Scripps, LLP 600 West Broadway, Suite 2600 San Diego, California 92101 Attention: Brian C. Fish, Esq. City or District: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Finance Director with a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Director of Public Works and a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: City Attorney Each party may change its address or addresses for delivery of notice by delivering written notice of such change of address to the other party. 12. Svc. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement may not be assigned by the Developer without the prior written consent of the City. In connection with any such consent of the City, the City may condition its consent upon the acceptability of the financial condition of the proposed assignee and upon any other factor which the City deems relevant in the circumstances. 14. Limited Liability. Any and all obligations of the City arising out of or related to this Agreement are the special and limited obligations of the City, in any event payable only from the $218,278 on deposit in the Improvement Fund described in Section 5 and the last paragraph of Section 6 hereof. In no event shall the City be obligated to advance any of its own funds hereunder, except pursuant to the provisions of Section 10 hereof. No Councilmember, staff member or agent of the City shall incur any liability hereunder to the Developer or any other patty in their individual capacities by reason of their actions hereunder or execution hereunder. 15. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 17. Amendments. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 7 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first -above written. ATTEST: 08003.02:J4349 CITY OF HUNTINGTON BEACH, for itself and on behalf of COMMUNITY FACILITIES DISTRICT NO. 1990-1 (Goldenwest/Ellis Area) By: Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INC., a California Corporation, Its Managin ember By: (Z�A Mark Jac ' President AS TO FORM: Brian Ci Fjsh foV Luce, Forward, amil & Sc pps, LLP Its Attome Record EXHIBIT A LIST OF FACILITIES TO BE ACQUIRED 1. Installation of reclaimed water system on Ellis Avenue, including, a new 12" subpotable water pipeline in Ellis Avenue from the connection at the existing 12" subpotable line to Goldenwest Street to the connection point in Saddleback Lane. 2. Improvements to Ellis Avenue to the centerline to City Standards, including lowering/relocation of any interfering oil/fuel lines and existing utility relocation/modification necessary to install said improvements 3. Design and construction of signing and striping on Ellis Avenue in accordance with Public Works Standards and Ellis Goldenwest Specific Plan. A-1 6 Q,Lnt & T�jffuyug LLP ACQUISMON AGREEMENT by and between the CITY OF HUNTINGTON BEACH �I GOLDENWEST PARTNERS, LLC, a California limited liability company Dated as of May 6,1999 CITY OF HUNTINGTON BEACH COMMUNITY FACILITIES DISTRICT NO.1990-1 (GOLDENWEST/ELLIS AREA) 08003-02:14349 ACQUISMON AGREEMENT CITY OF HUNTI`G T ON BEACH CO-MMUNITY FACILITIES DISTRICT NO. 1990-1 (GOLDENWEST/ELLIS AREA) THIS AGREEMENT, dated as of May 6, 1999, is by and between the City of Huntington Beach, a municipal corporation and a political subdivision of the State of California (the "City"), for the benefit of Community Facilities District No. 1990-1 (Goldenwest/Ellis Area) (the "District"), and Goldenwest Partners, LLC, a California limited liability company (the "Developer"). WHEREAS, the City Council at the City has established the District pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, as amended, (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the "Act") to provide financing for, among other things, the public facilities described on Exhibit A attached hereto and by this reference incorporated herein (the "Facilities"); and WHEREAS, the Developer is an owner of land within the District and is developing single-family homes thereon; and WHEREAS, the Facilities are adjacent to said homes and the City will benefit from a common plan of construction of the Facilities and the homes; and WHEREAS, the Developer has expertise in the construction of homes and public facilities of the character of the Facilities; and WHEREAS, the City has determined that it will obtain no advantage from undertaking the construction of the Facilities pursuant to public bid and will realize economic benefit if the Developer constructs the Facilities as provided herein; and WHEREAS, the City has issued bonds for the District (the "Bonds") to finance the Facilities pursuant to the Act; and WHEREAS, the City has entered into a Settlement of Action and Release with William Landis and the Developer, and this Agreement has been entered into in furtherance of the provisions of said agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. The Bonds. The City has issued the Bonds in the initial principal amount of $2,400,000. 3. f the Fgcilities. The Developer reasonably expects to complete the Facilities and request payment therefor hereunder within four (4) months of the date of this Agreement. 4. Refun ing Bonds. The City may, in the future, issue bonds to refund the Bonds and/or issue bonds to purchase the Bonds in lieu of the redemption of the Bonds. The Developer shall have no rights to any proceeds of any such buwids by reason of this 'Agreement or otherwise, or any right to participate in any way in the structuring of any such refinancing. 5. Use of Bond Eroceeds. The proceeds of the Bonds shall be deposited, held, invested, reinvested and disbursed as provided in the fiscal agent agreement, dated as of June 1, 1990 (the "Fiscal Agent Agreement") pursuant to which the Bonds were issued. $218,278.00 is currently on deposit in a separate improvement fund (the "Improvement Fund") under the Fiscal Agent Agreement, which are the sole monies available under this Agreement to pay the cost of the acquisition of the Facilities, as provided below, and such amount shall be used solely to make payments to the Developer of the acquisition prices of Facilities under and pursuant to the terms of this Agreement. b. Construction of and P a. Plans and_Specifieations: Prevailing_Wajes. The Developer represents that it has obtained or will obtain approval by all appropriate City departments of the plans and specifications for the Facilities that are to be acquired by the City and that all of such Facilities have been or will be constructed by the Developer in full compliance with the current City standards applicable to the construction of public improvements and that all such Facilities that are purchased by the City with amounts in the Improvement Fund under this Agreement shall be constructed in compliance with any applicable law or regulation with respect to the payment of prevailing wages. The City and the Developer agree that the Facilities are of local, not statewide concern, and that the provisions of the Public Contracts Code shall not apply to the construction of the Facilities. The City and the Developer agree that this Agreement is necessary to assure timely and satisfactory completion of the Facilities and that compliance with the Public Contracts Code with respect to the Facilities would work an incongruity and would not produce an advantage to the City or the District. The Developer agrees to comply with all City or other applicable bonding requirements applicable to construction of the Facilities, and to provide the City Director of Public Works (all references herein to the City Director of Public Works include any official of the City acting in such capacity or any designee of the City Director of Public Works) with copies of any change orders relative to the construction of any Facilities to be acquired by the City and the plans and specifications therefor. The City hereby acknowledges that funds on deposit in the Improvement Fund will be considered the equivalent of a construction bond for a commensurate portion of the Purchase Price (as defined below) of the Facilities to be acquired with such funds. b. Urchase Price. The amount to be paid by the City for the Facilities (hereafter the "Purchase Price" as to each such Facility), shall be determined by the City Director of Public Works and shall not exceed and shall be substantially the cost thereof, including the reasonable cost of appurtenant facilities and of preparing plans and specifications as well as the construction contracts and all costs of construction reasonably determined by the City Director of Public Works to be eligible under the Act to be part of the Purchase Price (said determination to be made consistent with the terms of this Agreement), such as fees and costs incurred in obtaining permits, licenses, rights of way or easements, the costs of change orders, engineering, legal, fiscal and inspection fees constituting a part of the public improvements. The Purchase Price may include a reasonable charge for contract administration by the Developer, not to exceed 4% of the related construction cost. The Developer shall provide any documentation substantiating the cost of the Facilities reasonably requested by the City Director of Public Works or the Cih, Finance Director. There shall be a presumption of reasonableness as to costs incurred under a construction contract entered into as a result of a call for bids by the Developer, provided that no extraordinary limitations or requirements (such as short time frame) are imposed by the Developer on the performance of such contract. C. Inspection and Acceptance. The Facilities to be acquired by the City, when fully completed, shall be accepted in accordance with adopted City policy, and the Purchase Price for each such Facility promptly paid from Bond proceeds if completed substantially in accordance with the approved plans and specifications for such Facilities and pursuant to the requirements of Section 53313.5 of the Act. The City shall accept no liability or responsibility for any such Facility or the maintenance thereof until all work with respect thereto has been completed to the satisfaction of the City Director of Public Works. Any Facilities to be acquired by other public agencies, shall be accepted subject to the relevant public agencies' policies and procedures. The Facilities shall be subject at all reasonable times prior to their acquisition to inspection by the City Director of Public Works, which inspection shall be accomplished in a timely manner. Prior to acceptance of any Facility by the City, the Developer shall provide as -built drawings or other similar plans and specifications of such Facility in the form required under City standards applicable to the construction of public improvements and otherwise by applicable law or regulation, along with evidence satisfactory to the City Director of Public Works that all costs of the Facility have been fully paid by the Developer to the party or parties entitled to be paid for such costs. The Developer shall obtain from any public agency (other than the City) acquiring a Facility a written statement to the effect that such Facility has been accepted by such public agency and all costs with respect thereto have been paid. All warranties, guarantees or other evidence of contingent obligations of third persons with respect to Facilities to be acquired by the City shall be delivered to the City Director of Public Works prior to acceptance thereof. If applicable, all documentation evidencing dedication and/or transfer of ownership of the Facilities shall be delivered to the City prior to the acceptance thereof and payment therefor, as further provided in Section 6e below. d. Payments to Developer. The Developer may request in writing a payment on the Purchase Price of any Facility described in Exhibit A hereto. Such payments shall be made only in the amount determined reasonable by the City Director of Public Works with respect to the Facility to be acquired, as specified in a cost certificate for each Facility or group of related Facilities completed by the City Director of Public Works, and in any event subject to the last paragraph of this Section 6.d. A ten percent retainage shall be held by the City in the Improvement Fund with respect to the cost of any Facility acquired by the City (no such retainage being required with respect to any Facility to be acquired by a public agency other than the City) pending final completion and acceptance of the related Facility and a one-year maintenance period for each such Facility. In lieu of such retainage, the Developer shall be permitted to provide to the City a letter of credit or performance bond in form and substance satisfactory to the City Director of Public Works and the City Finance Director. Any such Facility or portion thereof to be acquired by the City must be completed in accordance with the approved plans and specifications. Any Facility to be accepted by the City must be in such condition that it is ready for use by the City or the public as determined by the City Director of Public Works (said determination to be based on current City standards applicable to the construction of public improvements, wherever relevant). Any claim for a payment to the Developer from the $218,278.00 in the Improvement Fund shall be in a form acceptable to the City and include supporting documentation (including, with respect to any Facility to be acquired by a public agency other than the City, evidence that such agency has so accepted the Facility). The Director of Public Works shall review each claim for payment and inform the Developer, in writing, within 13 business days of receipt by the Director of Public Works of the claim and all supporting documentation, of the denial of any claim for payment in whole or in part, setting forth the reasons for such denial. The Developer shall be entitled to resubmit any claim or portion thereof so denied, if it is able to address the objections to such claim. The City shall make payment within forty-five (45) days of receipt of any claim or portion thereof which is not so denied, subject to the provisions of the last sentence of the next paragraph and the last paragraph of this Section b.d. If requested by the City Director of Public Works, the Developer shall prepare and execute a Notice of Completion in form acceptable to the City Director of Public Works as to any Facility to be acquired by the City and record such notice with the office of the Recorder of the County of Orange, State of California and cause its contractor to provide general lien releases in form acceptable to the City Director of Public Works for such Facility. The City shall be entitled to delay payment to the Developer for any Facility to be acquired by the City until 35 days after a Notice of Completion with respect thereto has been so filed by the Developer. If any of the Facilities to be acquired hereunder were or are financed, in whole or in part, from the proceeds of any loan secured by a mortgage or deed of trust upon any lands within the District, and in the absence of contrary written instructions by any mortgagee or beneficiary of such mortgage or deed of trust, the Purchase Price shall be paid to the Developer and to such mortgagee or beneficiary, as their interests may appear. The Developer shall provide evidence to the City Director of Public Works as to the source of funds, if any, to pay the costs of construction of the Facilities. Notwithstanding any other provision of this Agreement, the total payments by the City to the Developer under this Agreement (including any retainages described in the second paragraph of this Section 6.d.) shall not, in any event, exceed an aggregate of $218,278. e. Ownership and Transfer of Facilities. The conveyance of any Facilities to be owned by a public agency other than the City, shall be in accordance with such agency's policies and procedures. The provision or conveyance to the City of any Facilities to be acquired by the City shall take place as follows: M Land (,Eee or Easementl. The Developer shall cause the owners of the real property within the District to transfer to the City the appropriate rights, title and interest in and to said land to be acquired. The Developer agrees to cause the owners of the real property within the District to execute and deliver to the City those documents required to complete the transfer of Acceptable Tide (as defined herein) to the land. Acceptable Tide means title to the land delivered free and clear of all liens, encumbrances, assessments, easements or leases, whether any such item is recorded or unrecorded, and taxes, except those matters which are determined by the City Director of Public Works in his reasonable discretion not to interfere with the intended use of the land and therefore are not required to be cleared from the tide. Completion of transfer shall be evidenced by the recordation of an acceptance of the interest(s) in the land by the City Council or their designee. (ii) Improvements Construcled Qn Landn by PrQ2erty Owners. If Facilities to be acquired by the City are located on land which is owned by the owners of the real property within the District, then such property owners shall retain the title to said land and the improvements constructed thereon until the land and improvements are acquired by the City pursuant to the provision of this Agreement. Until title to the land and the Facilities are acquired by the City, the Developer shall maintain the land and improvements in good and safe condition. Transfer of title to the land and the Facilities thereon shall be in accordance with clause (i) above. (ill) Impovernents Constr1jCted orl Land Easement. If Facilities to be acquired by the City are on land on which the City holds fee title or easement rights, the Developer is hereby granted a license to enter said land for purposes related to the construction and maintenance (prior to acquisition by the City hereunder) of the said improvements. Upon completion of construction of any such Facility, the City Director of Public Works shall inspect the improvements m accordance with City standards applicable to the construction of public improvements, and if approved by the City Director of Public Works, the City shall give written notice of its acceptance of the Facility. (iv) -Personal -Property. If the Developer provides any personal property identified on Exhibit A hereto, transfer by the Developer to the City shall be accomplished by a bill of sale. (v) Fund5. If the Developer provides funds for Facilities, the provision of such funds to the City shall be acknowledged with a written receipt from the Finance Director. f. Payment of Excess Costs. The Developer hereby agrees to pay all costs of the Facilities in excess of the proceeds of the Bonds available therefore in the Improvement Fund established under the Fiscal Agent Agreement. 7. IndemnificafiQn and Hold Harmless. The Developer shall defend, hold harmless and indemnify the City and its elective and appointive boards, commissions, its officers, agents and employees and agents, against any liability or claim for damage of any kind allegedly suffered, incurred or threatened, including personal injury, death, property damage, inverse condemnation, or any combination of these, and resulting from any act or omission (negligent or non -negligent) in connection with the matters covered by this Agreement, but save and except those that arise from the sole active negligence or willful misconduct of City. The promise and agreement in this Section are not conditioned or dependent on whether or not the City has prepared, supplied, or reviewed any plan(s) or specification(s) in connection with the Facilities, or has insurance or other indemnification covering any of these matters. 8. Audit. The City Director of Public Works and Finance Director shall have the right, during normal business hours and upon the giving of ten days written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer in constructing any of the Facilities. 9. R_elation5hiI2 to Public Works. The parties hereto agree that this Agreement is for the acquisition of certain public facilities by the City from the proceeds of the sale of the Bonds deposited in the Improvement Fund and is not, nor is it intended to be, a public works contract. In performing this Agreement, the Developer is an independent contractor and not the agent of the City or the District. Neither the City nor the District shall have responsibility for payn-LelLt to any contractor or supplier of the Developer. All contracts related to the construction of the Facilities, and all change orders related thereto, shall be submitted to the City Director of Public Works for review and approval as to cost, and quantity and quality of work. Unless the City Director of Public Works submits a written denial of approval of any contract or change order to the Developer (stating the reasons therefor) within 13 business days of receipt by the City Director of Public Works of the contract or change order, the City Director of Public Works shall be deemed to have approved the contract or change order with respect to cost. 10. AttQrnev's Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 11. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified mail, postage prepaid, addressed as follows: Developer: Goldenwest Partners, LLC 5620 East Santiago Canyon Road Orange, California 92869 Attention: President with a copy to: Luce, Forward, Hamilton & Scripps, LLP 600 West Broadway, Suite 2600 San Diego, California 92101 Attention: Brian C. Fish, Esq. City or District: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Finance Director with a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: Director of Public Works and a copy to: City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attention: City Attorney Each party may change its address or addresses for delivery of notice by delivering written notice of such change of address to the other party. 12. Severabi__ ty. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 13. Successor$ and Assign. This Agreement shall be binding upon and inure to the benefit of the successors and assigns cl the parties hereto. This Agreerixerit may not be assigned by the Developer without the prior written consent of the City. In connection with any such consent of the City, the City may condition its consent upon the acceptability of the financial condition of the proposed assignee and upon any other factor which the City deems relevant in the circumstances. 14. Limited LiatiLty. Any and all obligations of the City arising out of or related to this Agreement are the special and limited obligations of the City, in any event payable only from the S218,278 on deposit in the Improvement Fund described in Section 5 and the last paragraph of Section 6 hereof. In no event shall the City be obligated to advance any of its own funds hereunder, except pursuant to the provisions of Section 10 hereof. No Councilmember, staff member or agent of the City shall incur any Iiability hereunder to the Developer or any other patty in their individual capacities by reason of their actions hereunder or execution hereunder. 15. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party- with the terms of this Agreement thereafter. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 17. Amendmeals. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first -above written. ATTEST: City Clerk 0E003.02:f4349 CITY OF HLNTINGTON BEACH, for itself and on behalf of COMMUNITY FACILITIES DISTRICT NO. 1990-1 (Gold e t/Ellis Area) By: Mayor APPROVED AS TO FORM: �i Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INC., a California Corporation, Its Managing Member By: ark Jaco Vresident APPROVED AS TO FORM: Brianrn h for Luce, Forward, Ha cripps,LLP t of Record n E) IiBIT A LIST OF FACILMES TO BE ACQUIRED I. Installation of reclaimed water system on Ellis Avenue, including, a new 12" subpotable water pipeline in Ellis Avenue from the connection at the existing 12" subpotable line to Goldenwest Street to the connection point in Saddleback Lane. n 2. Improvements to Ellis Avenue to the centerline to City Standards, includr::g lowering/relocation of any interfering oil/fuel lines and existing utility relocation/modification necessary to install said improvements. 3. Design and construction of signing and striping on Ellis Avenue in accordance with Public Works Standards and Ellis Goldenwest Specific Plan. A-1 'E` j o LUCE, FORWARD, Hkmmum & SCRIPPS LLP /YI-T(1RNEYS 1T L xw • FOUNDED 1973 l_-MAILA'MIZESS !1i:IS11@.-.1_uCi:-com - -J VIA rEDERaL EXPRESS May 4, 1999 C:: Mr. N—lark Jacobs Heritage Communities 5620 East Santiago County Roan Orange, CA 92869 Re: City of Huntington Beach v. Daviid Dahl - Settlement Agreement 17 Dear Nilark: Enclosed Tease find three ongirlal of the Settlement of :Action and Release in the above referenced case. Please execute where indicated and immediately deliver the same to Scott Melds at Office of City Attorney, 11.0: Box 190, 2000 Main Street, Huntington Beach, CA 92648 via an overnight delivery service. 1 f you have any questions, please give nee a call. Sincerely, r� ! n . Fi I fo r LUCE, FORWARD, HAN11LTO\ & SCRIPPS I_i_I' BC1=ibf Enclosures (I U \\-I:�-l- R7N "A DW.;.. S,:1'I�I: 21,.:il SAN DI J). CA I.I 1'•_ j I: N I,;'j"OI -1 F H!)� tiAN 1111�c �i� 1.-i 1,;,-I-`. \I.:\ i+)iC:: LUs A.", :1:_J-.i l:4\ i i:.i�i_I>CU (_IiIC: +.,;�] r am �-IWA -�, Lakr,�r� /G�l�•, M,y�,l I�i7p �e - �4 rail '• . `' �V�ti Gail Hutton Ciry Anomev April 22, 1999 OFFICE OF CITY ATTORNEY P.O. Box 190 20W Main Street Huntington Beach, California 92648 Brian C. Fish, Esq. VIA OVERINIGHT MAIL Luce, Forward, Hamilton & Scripps, LLP 600 Nest Broad%vay. Suite 2600 San Diego, CA 92101 George Rogers, Esq. VIA MESSENGER Rogers & MaeLeith. I_LP 10061 Talbert Avenue. Suite 300 Fountain Valley._ C'1 92708 Re: City rf 11unungion fleach v_ Drrt'id Dahl, including Cross -Complaint of W'illiam Landis against City- of Huntington Beach Dear Gentlemen: Telephane (714) 536-5555 Fax (714) 374-1590 Enclosed please find the Final version of the Settlement of Action and Release of the above -entitled case. Paul Thimmig, our bond counsel, has completed his revlc%v to determine which of the improvements described in the settlement are "authorized improvements" for purposes of the CFD. Please note that Paul added the improvements described at Condition 3p and q of Tentative Tract 1 5691, but deleted i. Paul is also preparing the Acquisition Agreement for Goldenwest Partners to siant. I have enclosed three originals of the settlement. Please have you and your clients sign all three and return them to me. I will then have the Mayor sign them and exchange originals. so we will all have a complete set of originals, signed in counterpart. As a matter of timing, please note that the trial date has been continued to May 10, 1999. Consequently, if we are to get everything signed and completed in time to file dismissals with prejudice prior to the trial date, we should aim at sinning all settlement documents by no later than April 30, 1999. Please don't hesitate to call me if you have any questions or if I can be of any further assistance. Sincerely, A,7.� Scott F. Field Deputy. City' Attorney SFF!ds Enclosurc RECEIVED cc: Paul Thimmi. Esq. S.c' . _ .., .A LFN xS!BCF Gcorge t_ Rogers Douglas R. MacLeidi Scott Field Funtington Beach City attorney 2000 Main Street Huntington Beach, CA 92648 ROGERS & MacLEITH LLP A La« Partnership 10061 Talbert Avenue, Suite ,tut Fountain Valle•. CA 927t)8 May 10, 1999 Re: City of Huntington Beach v. Dahl, Landis et al Dear Mr. Field Telephone: (714) 847-60 41 Fazsindle- (714; 968-3372 1=-ti] ul:glrala�sco'r� c,tnhlinlc net Enclosed is the original and 4 copies of the Settlement of Action and Release Please return 2 signed copies to me together with a copy of the filed dismissal of the above action. if there is st)ythin�L' else that YOU need, please advise me. I enjayCd W01-k-HIL' �ri:h �'OLi 011 IIJ catie. You represented the City excellently It is nice to know the City has such fine attorneys Very truly _yours, ROGERS & MacLEITH LLP GEORGE L ROGERS GI_R cc. Cl3Cn4 SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, individually, and through a general and a limited partnership (collectively, "Dahl") entered into escrow with William Landis ("Landis") to buy from Landis a parcel of land known as Tentative Tract No. 14109 (the "Property"); WHEREAS, on June 25, 1990, the City of Huntington Beach ("City") established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"); WHEREAS, CFD 1990-1 encompassed certain parcels of property depicted in Exhibit A, and hereinafter referred to as the "District;" WHEREAS, CFD 1990-1 provided a funding mechanism for construction of certain street and water improvements (known as the "Facilities") serving the District, as more specifically described in the notice of lien for CFD 1990-1; WHEREAS, CFD 1990-I issued tax-exempt bonds, the proceeds of which were deposited in an Improvement Fund (herein referred to as the "Trust Account") and were to be used to pay for construction of the Facilities. The tax-exempt bonds are being retired through special taxes levied within the District; WHEREAS, over the course of time, Dahl constructed some of the Facilities, invoiced CFD 1990-1 for the work and CFD 1990-1 reimbursed Dahl for the cost of the Facilities from the Trust Account. During 1996 it became apparent that there were insufficient funds in the Trust Account to complete all the Facilities, particularly those benefiting the Property. WHEREAS, all of the District has been improved with residential homes with the exception of the Property and certain parcels immediately south of the Property, also as depicted on Exhibit A attached hereto and hereinafter collectively referred to as the "Land." Money is still remaining in the Trust Account of CFD 1990-1 which can be used to install subdivision improvements for the Land; t of 7 SF-99Agree: Land is28 04/22/99 - #1 2 WHEREAS, as part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement' which provided that to the extent that CFD 1990-1 was unable to fund construction of all of the Facilities, then Dahl was personally responsible for installing the Facilities; WHEREAS, when Dahl did not complete the Facilities, the City filed an action against Dahl and against Landis entitled City of Huntington Beach and CFD 1990-1 v. David Dahl, William Landis, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the City filed the Action as against Landis for the purposes of establishing through declaratory relief whether the City was obligated to expend the funds in the Trust Account for the benefit of the Property; WHEREAS, Landis cross -complained against the City, alleging that the City had improperly expended funds from the Trust Account; WHEREAS, City and Dahl have entered into a separate settlement agreement; WHEREAS, the allegations of the Complaint and Cross -Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, Landis has entered into an agreement to sell the Property to Goldenwest Partners, a California Limited liability Company, ("GWP"). GWP has already purchased the remainder of the Land, except for the Property; and WHEREAS, GWP has obtained conditional approval of Tentative Tract Map No. 15691 ("TT 15191 ") for the development of the Property, and additional parcels to the south of the Property. TT 15691 specifies the public improvements that must be installed as part of the development. A copy of the conditions of approval of TT 15691 is attached as Exhibit A; and WHEREAS, the City, Landis and GWP are desirous of ending this Action and resolving all disputes concerning CFD 1990-1 and use of the Trust Account; 2 of 7 S F-99Agree: Landis28 04i221:99 - #! 2 NOW, THEREFORE, it is agreed as follows: Except as provided below, the City and CFD 1990-1 on one hand, and Landis and GWP on the other hand, do hereby release each other from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to CFD 1990-1 or to the allegations in the Action. GWP's release will not become effective until the City and GWP execute the Acquisition Agreement described below. 2. The City and CFD 1990-1 agree to enter into an Acquisition Agreement with GWP, the form of which will be substantially similar to the existing Acquisition Agreement, with such revisions as are determined by Bond Counsel and GWP to be reasonably necessary or appropriate. The City represents that there currently is Two Hundred Eighteen Thousand Two Hundred Seventy-eight Dollars (5218,278.00) in the Trust Account for CFD 1990-1 ("Remaining Funds"). Such Acquisition Agreement will provide that GWP will be required to complete the improvements described at Conditions 3h, m, n, o, p and q as described in TT 15691, provided that the public improvements described in this sentence adjoin the Property (hereinafter referred to as the "Authorized Improvements"). Such Acquisition Agreement will further provide that GWP will be reimbursed from the Trust Account for such amounts expended to complete the Authorized Improvements. The City and CFD covenant and agree that the remaining funds in the Trust Account will be expended solely for the purpose of reimbursing GWP for completing the Authorized Improvements. Such Acquisition Agreement will further provide that GWP agrees to waive any and all rights to challenge the formation of CFD 1990-1 or its authority to levy special taxes. GWP acknowledges that there is insufficient money in the Trust Account to complete the Authorized Improvements, and nevertheless agrees that the Acquisition Agreement shall provide that GWP will install all of the Authorized Improvements. 3 of 7 S F-99Agree: Land is28 04/22/99 - # 12 3. The City and Landis waive any claim which they have against the other for costs or attorneys' fees incurred in the Action. 4. Counsels for the City and Landis shall file a dismissal with prejudice to the Complaint and Cross -Complaint in the Action as to each other within seven (7) calendar days of the execution of this agreement and the Acquisition Agreement between the City and GWP by all parties. Each counsel shall provide opposing counsel with a conformed copy of the dismissal. Each party understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: Section 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 6. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 7. The parties expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 4 of 7 SF-99Agree:Land iQ8 04i22i99 - 412 8. The parties acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The parties, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 9. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 10. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 11. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 12. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. S of 7 SF-99Agree: Land is28 04122i99 - #12 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: April , 1999 CITY OF HUNTINGTON BEACH By Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 6of7 SF-99Agree:Land is2B 04122i99 - #12 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: April _, 1999 CITY OF HUNTINGTON BEACH ILM Mayor APPROVED AS TOO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 6of7 SF-99Agree: Candis28 04/22/99 - #12 SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, individually, and through a general and a limited partnership (collectively, "Dahl") entered into escrow with William Landis ("Landis") to buy from Landis a parcel of land known as Tentative Tract No. 14109 (the "Property"); WHEREAS, on June 25, 1990, the City of Huntington Beach (`City") established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"); WHEREAS, CFD 1990-1 encompassed certain parcels of property depicted in Exhibit A, and hereinafter referred to as the "District;" WHEREAS, CFD 1990-1 provided a funding mechanism for construction of certain street and water improvements (known as the "Facilities") serving the District, as more specifically described in the notice of lien for CFD 1990-1; WHEREAS, CFD 1990-1 issued tax-exempt bonds, the proceeds of which were deposited in an Improvement Fund (herein referred to as the "Trust Account") and were to be used to pay for construction of the Facilities. The tax-exempt bonds are being retired through special taxes levied within the District; WHEREAS, over the course of time, Dahl constructed some of the Facilities, invoiced CFD 1990-1 for the work and CFD 1990-1 reimbursed Dahl for the cost of the Facilities from the Trust Account. During 1996 it became apparent that there were insufficient funds in the Trust Account to complete all the Facilities, particularly those benefiting the Property. WHEREAS, all of the District has been improved with residential homes with the exception of the Property and certain parcels immediately south of the Property, also as depicted on Exhibit A attached hereto and hereinafter collectively referred to as the "Land." Money is still remaining in the Trust Account of CFD 1990-1 which can be used to install subdivision improvements for the Land; I of 7 SF-99Agree: Lund is2 8 04/22/99 - # 12 WHEREAS, as part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund construction of all of the Facilities, then Dahl was personally responsible for installing the Facilities; WHEREAS, when Dahl did not complete the Facilities, the City filed an action against Dahl and against Landis entitled City of Huntington Beach and CFD 1990-1 v. David Dahl, William Landis, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the City filed the Action as against Landis for the purposes of establishing through declaratory relief whether the City was obligated to expend the funds in the Trust Account for the benefit of the Property; WHEREAS, Landis cross -complained against the City, alleging that the City had improperly expended funds from the Trust Account; WHEREAS, City and Dahl have entered into a separate settlement agreement; WHEREAS, the allegations of the Complaint and Cross -Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, Landis has entered into an agreement to sell the Property to Goldenwest Partners, a California Limited liability Company, ("GWP"). GWP has already purchased the remainder of the Land, except for the Property; and WHEREAS, GWP has obtained conditional approval of Tentative Tract Map No. 15691 ("TT 15191") for the development of the Property, and additional parcels to the south of the Property. TT 15691 specifies the public improvements that must be installed as part of the development. A copy of the conditions of approval of TT 15691 is attached as Exhibit A; and WHEREAS, the City, Landis and GWP are desirous of ending this Action and resolving all disputes concerning CFD 1990-1 and use of the Trust Account; 2of7 SF-99Agree: i_.andis28 04/22/99 - # 12 NOW, THEREFORE, it is agreed as follows: 1. Except as provided below, the City and CFD 1990-1 on one hand, and Landis and GWP on the other hand, do hereby release each other from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to CFD 1990-1 or to the allegations in the Action. GWP's release will not become effective until the City and GWP execute the Acquisition Agreement described below. 2. The City and CFD 1990-1 agree to enter into an Acquisition Agreement with GWP, the form of which will be substantially similar to the existing Acquisition Agreement, with such revisions as are determined by Bond Counsel and GWP to be reasonably necessary or appropriate. The City represents that there currently is Two Hundred Eighteen Thousand Two Hundred Seventy-eight Dollars ($218,278.00) in the Trust Account for CFD 1990-1 ("Remaining Funds"). Such Acquisition Agreement will provide that GWP will be required to complete the improvements described at Conditions 3h, m, n, o, p and q as described in TT 15691, provided that the public improvements described in this sentence adjoin the Property (hereinafter referred to as the "Authorized Improvements"). Such Acquisition Agreement will further provide that GWP will be reimbursed from the Trust Account for such amounts expended to complete the Authorized Improvements. The City and CFD covenant and agree that the remaining funds in the Trust Account will be expended solely for the purpose of reimbursing GWP for completing the Authorized Improvements. Such Acquisition Agreement will further provide that GWP agrees to waive any and all rights to challenge the formation of CFD 1990-1 or its authority to levy special taxes. GWP acknowledges that there is insufficient money in the Trust Account to complete the Authorized Improvements, and nevertheless agrees that the Acquisition Agreement shall provide that GWP will install all of the Authorized Improvements. 3 of 7 SF-99Agree: Land i528 04/22/99 - #! 2 3. The City and Landis waive any claim which they have against the other for costs or attorneys' fees incurred in the Action. 4. Counsels for the City and Landis shall file a dismissal with prejudice to the Complaint and Cross -Complaint in the Action as to each other within seven (7) calendar days of the execution of this agreement and the Acquisition Agreement between the City and GWP by all parties. Each counsel shall provide opposing counsel with a conformed copy of the dismissal. 5. Each party understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: Section 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 6. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 7. The parties expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 4of7 SF-99Agree:Iandis28 04/22/99 - # 12 8. The parties acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The parties, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 9. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 10. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 11. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 12. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. 5 of 7 SF-99Agree: Land is28 04l22199 - # 12 SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, individually, and through a general and a limited partnership (collectively, "Dahl") entered into escrow with William Landis ("Landis") to buy from Landis a parcel of land known as Tentative Tract No. 14109 (the "Property"); WHEREAS, on June 25, 1990, the City of Huntington Beach ("City") established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"); WHEREAS, CFD 1990-1 encompassed certain parcels of property depicted in Exhibit A, and hereinafter referred to as the "District;" WHEREAS, CFD 1990-1 provided a funding mechanism for construction of certain street and water improvements (known as the "Facilities") serving the District, as more specifically described in the notice of lien for CFD 1990-1; WHEREAS, CFD 1990-1 issued tax-exempt bonds, the proceeds of which were deposited in an Improvement Fund (herein referred to as the "Trust Account") and were to be used to pay for construction of the Facilities. The tax-exempt bonds are being retired through special taxes levied within the District; WHEREAS, over the course of time, Dahl constructed some of the Facilities, invoiced CFD 1990-1 for the work and CFD 1990-1 reimbursed Dahl for the cost of the Facilities from the Trust Account. During 1996 it became apparent that there were insufficient funds in the Trust Account to complete all the Facilities, particularly those benefiting the Property. WHEREAS, all of the District has been improved with residential homes with the exception of the Property and certain parcels immediately south of the Property, also as depicted on Exhibit A attached hereto and hereinafter collectively referred to as the "Land." Money is still remaining in the Trust Account of CFD 1990-1 which can be used to install subdivision improvements for the Land; 1 of 7 SF-99Agree: Landi s28 04r22i99 - ft12 WHEREAS, as part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund construction of all of the Facilities, then Dahl was personally responsible for installing the Facilities; WHEREAS, when Dahl did not complete the Facilities, the City filed an action against Dahl and against Landis entitled City of Huntington Beach and CFD 1990-1 v. David Dahl, YFilliam Landis, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the City filed the Action as against Landis for the purposes of establishing through declaratory relief whether the City was obligated to expend the funds in the Trust Account for the benefit of the Property; WHEREAS, Landis cross -complained against the City, alleging that the City had improperly expended funds from the Trust Account; WHEREAS, City and Dahl have entered into a separate settlement agreement; WHEREAS, the allegations of the Complaint and Cross -Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, Landis has entered into an agreement to sell the Property to Goldenwest Partners, a California Limited liability Company, ("GWP"). GWP has already purchased the remainder of the Land, except for the Property; and WHEREAS, GWP has obtained conditional approval of Tentative Tract Map No. 15691 ("TT 15191 ") for the development of the Property, and additional parcels to the south of the Property. TT 15691 specifies the public improvements that must be installed as part of the development. A copy of the conditions of approval of TT 15691 is attached as Exhibit A; and WHEREAS, the City, Landis and GWP are desirous of ending this Action and resolving all disputes concerning CFD 1990-1 and use of the Trust Account; 2 of 7 SF-99Agree:Land is28 041'22/99 - #12 NOW, THEREFORE, it is agreed as follows: Except as provided below, the City and CFD 1990-1 on one hand, and Landis and GWP on the other hand, do hereby release each other from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to CFD 1990-1 or to the allegations in the Action. GWP's release will not become effective until the City and GWP execute the Acquisition Agreement described below. 2. The City and CFD 1990-1 agree to enter into an Acquisition Agreement with GWP, the form of which will be substantially similar to the existing Acquisition Agreement, with such revisions as are determined by Bond Counsel and GWP to be reasonably necessary or appropriate. The City represents that there currently is Two Hundred Eighteen Thousand Two Hundred Seventy-eight Dollars ($218,278.00) in the Trust Account for CFD 1990-1 ("Remaining Funds"). Such Acquisition Agreement will provide that GWP will be required to complete the improvements described at Conditions 3h, m, n, o, p and q as described in TT 15691, provided that the public improvements described in this sentence adjoin the Property (hereinafter referred to as the "Authorized Improvements"). Such Acquisition Agreement will further provide that GWP will be reimbursed from the Trust Account for such amounts expended to complete the Authorized Improvements. The City and CFD covenant and agree that the remaining funds in the Trust Account will be expended solely for the purpose of reimbursing GWP for completing the Authorized Improvements. Such Acquisition Agreement will further provide that GWP agrees to waive any and all rights to challenge the formation of CFD 1990-1 or its authority to levy special taxes. GWP acknowledges that there is insufficient money in the Trust Account to complete the Authorized Improvements, and nevertheless agrees that the Acquisition Agreement shall provide that GWP will install all of the Authorized Improvements. 3 of 7 SF-99Agreea.andisB 04i2 M-#12 3. The City and Landis waive any claim which they have against the other for costs or attorneys' fees incurred in the Action. 4. Counsels for the City and Landis shall file a dismissal with prejudice to the Complaint and Cross -Complaint in the Action as to each other within seven (7) calendar days of the execution of this agreement and the Acquisition Agreement between the City and GWP by all parties. Each counsel shall provide opposing counsel with a conformed copy of the dismissal. 5. Each party understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: Section 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. G. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 7. The parties expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 4 of7 SF-99Agrecaandis28 04.122i99 - 412 8. The parties acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The parties, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 9. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 10. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 11. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 12. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. 5 of 7 SF-99Agree:Landis28 0.3/22i99 - # ] 2 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: April _, 1999 CITY OF HUNTINGTON BEACH an Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 6of7 SF-99AgrmLand is28 04122199 - is 12 COPS` SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, individually, and through a general and a limited partnership (collectively, "Dahl") entered into escrow with William Landis ("Landis") to buy from Landis a parcel of land known as Tentative Tract No. 14109 (the "Property"); WHEREAS, on June 25, 1990, the City of Huntington Beach ("City") established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"); WHEREAS, CFD 1990-1 encompassed certain parcels of property depicted in Exhibit A, and hereinafter referred to as the "District;" WHEREAS, CFD 1990-1 provided a funding mechanism for construction of certain street and water improvements (known as the "Facilities") serving the District, as more specifically described in the notice of lien for CFD 1990-1; WHEREAS, CFD 1990-1 issued tax-exempt bonds, the proceeds of which were deposited in an Improvement Fund (herein referred to as the "Trust Account") and were to be used to pay for construction of the Facilities. The tax-exempt bonds are being retired through special taxes levied within the District; WHEREAS, over the course of time, Dahl constructed some of the Facilities, invoiced CFD 1990-1 for the work and CFD 1990-1 reimbursed Dahl for the cost of the Facilities from the Trust Account. During 1996 it became apparent that there were insufficient funds in the Trust Account to complete all the Facilities, particularly those benefiting the Property. WHEREAS, all of the District has been improved with residential homes with the exception of the Property and certain parcels immediately south of the Property, also as depicted on Exhibit A attached hereto and hereinafter collectively referred to as the "Land." Money is still remaining in the Trust Account of CFD 1990-1 which can be used to install subdivision improvements for the Land; 1 of 7 S F-99Agree: Land is28 04r22r99 - # 12 WHEREAS, as part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund construction of all of the Facilities, then Dahl was personally responsible for installing the Facilities; WHEREAS, when Dahl did not complete the Facilities, the City filed an action against Dahl and against Landis entitled City of Huntington Beach and CFD 1990-1 v. David Dahl, William Landis, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the City filed the Action as against Landis for the purposes of establishing through declaratory relief whether the City was obligated to expend the funds in the Trust Account for the benefit of the Property; WHEREAS, Landis cross -complained against the City, alleging that the City had improperly expended funds from the Trust Account; WHEREAS, City and Dahl have entered into a separate settlement agreement; WHEREAS, the allegations of the Complaint and Cross -Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, Landis has entered into an agreement to sell the Property to Goldenwest Partners, a California Limited liability Company, ("GWP"). GWP has already purchased the remainder of the Land, except for the Property; and WHEREAS, GWP has obtained conditional approval of Tentative Tract Map No. 15691 ("TT 15191 ") for the development of the Property, and additional parcels to the south of the Property. TT 15691 specifies the public improvements that must be installed as part of the development. A copy of the conditions of approval of TT 15691 is attached as Exhibit A; and WHEREAS, the City, Landis and GWP are desirous of ending this Action and resolving all disputes concerning CFD 1990-1 and use of the Trust Account; 2 of7 SF-99Agwe.Landis28 04/22/99 - # 12 NOW, THEREFORE, it is agreed as follows: 1. Except as provided below, the City and CFD 1990-1 on one hand, and Landis and GWP on the other hand, do hereby release each other from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to CFD 1990-1 or to the allegations in the Action. GWP's release will not become effective until the City and GWP execute the Acquisition Agreement described below. 2. The City and CFD 1990-1 agree to enter into an Acquisition Agreement with GWP, the form of which will be substantially similar to the existing Acquisition Agreement, with such revisions as are determined by Bond Counsel and GWP to be reasonably necessary or appropriate. The City represents that there currently is Two Hundred Eighteen Thousand Two Hundred Seventy-eight Dollars (5218,278.00) in the Trust Account for CFD 1990-1 ("Remaining Funds"). Such Acquisition Agreement will provide that GWP will be required to complete the improvements described at Conditions 3h, in, n, o, p and q as described in TT 15691, provided that the public improvements described in this sentence adjoin the Property (hereinafter referred to as the "Authorized Improvements"). Such Acquisition Agreement will further provide that GWP will be reimbursed from the Trust Account for such amounts expended to complete the Authorized Improvements. The City and CFD covenant and agree that the remaining funds in the Trust Account will be expended solely for the purpose of reimbursing GWP for completing the Authorized Improvements. Such Acquisition Agreement will further provide that GWP agrees to waive any and all rights to challenge the formation of CFD 1990-1 or its authority to levy special taxes. GWP acknowledges that there is insufficient money in the Trust Account to complete the Authorized Improvements, and nevertheless agrees that the Acquisition Agreement shall provide that GWP will install all of the Authorized Improvements. 3 of SF-99Agree:Undis28 04122l99 - #12 3. The City and Landis waive any claim which they have against the other for costs or attorneys' fees incurred in the Action. 4. Counsels for the City and Landis shall file a dismissal with prejudice to the Complaint and Cross -Complaint in the Action as to each other within seven (7) calendar days of the execution of this agreement and the Acquisition Agreement between the City and GWP by all parties. Each counsel shall provide opposing counsel with a conformed copy of the dismissal. 5. Each party understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: Section 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 6. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 7. The parties expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 4 of 7 SF-99Agree: LandisH 04!22!99 - # 12 S. The parties acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The parties, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 9. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 10, This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 11. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 12. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. 5 of 7 sr-99Agree:Land is28 04M i99 - u 12 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: April T, 1999 CITY OF HUNTINGTON BEACH Lo Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attomey of Record 6 of 7 SF-99A gree: Landis28 041'2199 - 412 DATED: April , 1999 WILLIAM LANDIS By APPROVED AS TO FORM: eorge Rogers of Rogers & MacLeith LLP His Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INTC., a California Corporation, Its Managing Member LIM Mark Jacobs, President APPROVED AS TO FORM: Brian C. Fish for Luce, Forward, Hamilton & Scripps, LLP Its Attorney of Record 7 of 7 SF-99Agree: Land is28 04122i99 - #12 COPY SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, individually, and through a general and a limited partnership (collectively, "Dahl') entered into escrow with William Landis ("Landis") to buy from Landis a parcel of land known as Tentative Tract No. 14109 (the "Property"); WHEREAS, on June 25, 1990, the City of Huntington Beach ("City") established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"); WHEREAS, CFD 1990-1 encompassed certain parcels of property depicted in Exhibit A, and hereinafter referred to as the "District;" WHEREAS, CFD 1990-1 provided a funding mechanism for construction of certain street and water improvements (known as the "Facilities") serving the District, as more specifically described in the notice of lien for CFD 1990-1; WHEREAS, CFD 1990-1 issued tax-exempt bonds, the proceeds of which were deposited in an Improvement Fund (herein referred to as the "Trust Account") and were to be used to pay for construction of the Facilities. The tax-exempt bonds are being retired through special taxes levied within the District; WHEREAS, over the course of time, Dahl constructed some of the Facilities, invoiced CFD 1990,1 for the work and CFD 1990-1 reimbursed Dahl for the cost of the Facilities from the Trust Account. During 1996 it became apparent that there were insufficient funds in the Trust Account to complete all the Facilities, particularly those benefiting the Property. WHEREAS, all of the District has been improved with residential homes with the exception of the Property and certain parcels immediately south of the Property, also as depicted on Exhibit A attached hereto and hereinafter collectively referred to as the "Land." Money is still remaining in the Trust Account of CFD 1990-1 which can be used to install subdivision improvements for the Land; 1 of 7 SF-99Agme: iandis2 B 04/22/99 - #12 WHEREAS, as part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund construction of all of the Facilities, then Dahl was personally responsible for installing the Facilities; WHEREAS, when Dahl did not complete the Facilities, the City filed an action against Dahl and against Landis entitled City of Huntington Beach and CFD 1990-1 v. David Dahl, William Landis, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the City filed the Action as against Landis for the purposes of establishing through declaratory relief whether the City was obligated to expend the funds in the Trust Account for the benefit of the Property; WHEREAS, Landis cross -complained against the City, alleging that the City had improperly expended funds from the Trust Account; WHEREAS, City and Dahl have entered into a separate settlement agreement; WHEREAS, the allegations of the Complaint and Cross -Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, Landis has entered into an agreement to sell the Property to Goldenwest Partners, a California Limited liability Company, ("GWP"). GWP has already purchased the remainder of the Land, except for the Property; and WHEREAS, GWP has obtained conditional approval of Tentative Tract Map No. 15691 ("TT 15191 ") for the development of the Property, and additional parcels to the south of the Property. TT 15691 specifies the public improvements that must be installed as part of the development. A copy of the conditions of approval of TT 15691 is attached as Exhibit A; and WHEREAS, the City, Landis and GWP are desirous of ending this Action and resolving all disputes concerning CFD 1990-1 and use of the Trust Account; 2 of 7 SF-99Agree: i_andis28 04122i99 - #!2 NOW, THEREFORE, it is agreed as follows: Except as provided below, the City and CFD 1990-1 on one hand, and Landis and GWP on the other hand, do hereby release each other from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to CFD 1990-1 or to the allegations in the Action. GWP's release will not become effective until the City and GWP execute the Acquisition Agreement described below. 2. The City and CFD 1990-1 agree to enter into an Acquisition Agreement with GWP, the form of which will be substantially similar to the existing Acquisition Agreement, with such revisions as are determined by Bond Counsel and GWP to be reasonably necessary or appropriate. The City represents that there currently is Two Hundred Eighteen Thousand Two Hundred Seventy-eight Dollars ($218,278.00) in the Trust Account for CFD 1990-1 ("Remaining Funds"). Such Acquisition Agreement will provide that GWP will be required to complete the improvements described at Conditions 3h, m, n, o, p and q as described in TT 15691, provided that the public improvements described in this sentence adjoin the Property (hereinafter referred to as the "Authorized Improvements"). Such Acquisition Agreement will further provide that GWP will be reimbursed from the Trust Account for such amounts expended to complete the Authorized Improvements. The City and CFD covenant and agree that the remaining funds in the Trust Account will be expended solely for the purpose of reimbursing GWP for completing the Authorized Improvements. Such Acquisition Agreement will further provide that GWP agrees to waive any and all rights to challenge the formation of CFD 1990-1 or its authority to levy special taxes. GWP acknowledges that there is insufficient money in the Trust Account to complete the Authorized Improvements, and nevertheless agrees that the Acquisition Agreement shall provide that GWP will install all of the Authorized Improvements. 3 of 7 SF-99Agme:LaridisM 04/22i99 - .# 12 3. The City and Landis waive any claim which they have against the other for costs or attorneys' fees incurred in the Action. 4. Counsels for the City and Landis shall file a dismissal with prejudice to the Complaint and Cross -Complaint in the Action as to each other within seven (7) calendar days of the execution of this agreement and the Acquisition Agreement between the City and GWP by all parties. Each counsel shall provide opposing counsel with a conformed copy of the dismissal. 5. Each party understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: Section 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 6. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 7. The parties expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 4of7 SF-99Agree: Landis26 04/22/99 - #12 8. The parties acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The parties, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 9. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 10. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 11. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the parties concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 12. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. 5 of 7 SF-99Agrcc: Landis28 04/22/99 - #12 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: April ._._____, 1999 CITY OF HUNTINGTON BEACH Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 6 of 7 SF-99Agree: Land is2 8 04/22/99 - # 12 DATED: April _, 1999 WILLI LANDIS By APPROVED AS TO FORM: Geo g Rogers of Rogers & MacLeith LLP His Attorney of Record GOLDENWEST PARTNERS, LLC BY HERITAGE COMMUNITIES, INC., a California Corporation, Its Managing Member Mark Jacobs, President APPROVED AS TO FORM: Brian C. Fish for Luce, Forward, Hamilton & Scripps, LLP Its Attorney of Record 7 of 7 SF-99Agree:Landis28 04/22/99 - #I 2 S EDGWICK, DETERT, MORAN & ARNOLD rAM CItY-RT`OR. :' 11 May 6, 1999 li r;�;`;r;��; ,.H Scott F. Field G� Deputy City Attorney City of Huntington Beach (� Post Office Box 190 Huntington Beach, California 92648 Re: Principals Central Park 98 and Central Park #I2 Obligees City of Huntington Beach Bond Nos. SUR 10-66-71 and SUR 10-66-72 Project Tract Maps 13209 and 13270 Claim No. Unknown Litigation City of Huntington Beach-v. David Dahl, etc. Orange County Superior Court Case No. 77-57-26 Our File No. 570-23379 Dear Mr. Field: Enclosed are the three original settlement of action and releases which you previously sent to us for GEIC execution. As you can see, GEIC signed. We also approved as to form. Accordingly, please file requests for dismissal immediately and confirm that Monday's nearing is off calendar. RBP:s Enclosures SDC•C2/831? Very truly yours, SEDGWICK, By T, MORAN & ARNOLD ierce 3 Par6 Plaza irirnlrrri[6 I'lnur lrr iur, Cafii-r is 'P21-11-85 lal IrIrP....... 90.85_'.A'!ual Far+imilr 91`a.11:2.821S2 S" Fit iN.:1". L r ,��.:ai_r, a:un:.u.r. -NIA Y (k /.rrn.a 11;.?AI.S9rlll 213.126.60110 M2.6tL9u.-w 212.1-22.41/41-21 0i"La!9,I829 01.201.t 3o •rr � SETTLEMENT OF ACTION AND RELEASE WHEREAS, David Dahl, the Dahl Company, a general partnership, Central Park #8, a limited partnership, Central Park #9, a limited partnership, and Central Park #12, a California limited partnership (collectively, "Dahl") were the owner of two tracts of real property located in the City of Huntington Beach ("City") known as Tract Nos. 13269 and 13270; WHEREAS, the City granted certain development approvals to Tracts 13269 and 13270 subject to the condition that Dahl install certain water facilities and street improvements to Ellis Avenue (the "Ellis Avenue Improvements"); WHEREAS, Dahl entered into subdivision agreements with the City as to each Tract Nos. 13269 and 13270 covenanting to complete the conditions of approval, including the Ellis Avenue improvements; WHEREAS, as security for the covenants of the subdivision agreements, Dahl obtained performance bonds from Golden Eagle Insurance Company ("Golden Eagle") in favor of the City for the Ellis Avenue Improvements, known as Performance Bond No. SUR10-66-71 and Performance Bond No. SUR10-66-72; WHEREAS, in order to assist Dahl in developing the Tracts 13269 and 13270 and related tracts, the City established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"). As part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund any of the public improvements for Tract Nos. 13269 and 13270 and related tracts, then Dahl was personally responsible for installing the improvements; WHEREAS, when Dahl did not complete the Ellis Avenue Improvements, the City filed an action against Dahl and against Golden Eagle Insurance Company entitled City of Huntington 1 of 9 SF-99Agree: Qah10126 Oai 16199 - #9 • Beach, et al., v. David Dahl, Golden Eagle Insurance Company, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the allegations of the Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, the City on one hand, and Golden Eagle and Dahl on the other hand, are desirous of ending this Action and resolving all disputes concerning the Action, NOW, THEREFORE, it is agreed as follows: 1. Except as provided below, the City does hereby release and discharge Golden Eagle, any and all Central Park limited partnerships related to Dahl, Dahl and each of their officers, agents, employees and successors -in -interest, from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action and to all Central Park Tracts, including but not limited to Tract Nos. 13269, 13270, 13036 and 13439, and to Golden Eagle's claims handling practices, procedures, and conduct, including claims that Golden Eagle acted in "bad faith." 2. Golden Eagle agrees to install a fire hydrant and a 12-inch water main in Ellis Avenue of 840 linear feet, pursuant to the plans and specifications for Tract Nos. 13269, 13270 and 13036, and as described in Exhibit A attached hereto (the "Water Facilities"). Golden Eagle shall further comply with all ordinary and customary requirements of the City for constructing such improvements, including obtaining all encroachment permits, inspection permits, and providing proof of certificates of insurance and City business license for Golden Eagle's contractor. (The City shall issue a "no -fee" encroachment permit for the Water Facilities, because the cost of the permit is included in the payment at Section 9 of this Agreement.) 2of9 SF-99Agree:DA10126 04!16/99 - #9 Golden Eagle shall begin construction of the Water Facilities within fourteen (14) calendar days of execution of this Agreement by all parties. Golden Eagle shall complete the Water Facilities to the reasonable satisfaction of the City Engineer within thirty (30) working days of beginning construction. Failure to timely begin or complete construction shall subject Golden Eagle to liquidated damages of $100 per day. 4. Golden Eagle shall warranty the Water Facilities for one year after the City Engineer accepts the Facilities. As security for the warranty, Golden Eagle shall deposit Five Thousand Dollars (S$,000) with the City. This Five Thousand Dollars (S5,000) deposit shall be held in an interest -bearing account, to be returned with interest to Golden Eagle at the end of the one-year warranty. Alternatively, Golden Eagle may deposit a certificate of deposit in a form acceptable to the City. 5. Golden Eagle, or its contractor, hereby agrees to protect, defend, indemnify and hold and save harmless City, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to Golden Eagle's or its contractor's employees and contractors and damage to Golden Eagle's or its contractor's property, arising directly or indirectly out of construction of the Water Facilities by Golden Eagle or its contractor, including those arising from the passive concurrent negligence of City, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of City. Golden Eagle's contractor will conduct all defenses at its sole cost and expense. City shall be reimbursed by Golden Eagle or its contractor for all costs and attomey's fees incurred by City in enforcing this obligation. Golden Eagle has satisfied in full its obligation under this Section by its contractor providing the insurance policies described at Sections 5, 7 and 8 herein, and an indemnity agreement satisfactory to the City. 3 of 9 SF-99Agree:Dah10126 04/16/99 - #9 • 0 6. Pursuant to California Labor Code Section 1861, Golden Eagle or its contractor acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; Golden Eagle or its contractor covenants that they will comply with such provisions prior to commencing construction of the Water Facilities. Golden Eagle or its contractor shall maintain Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty thousand Dollars ($250,000) bodily injury by disease, policy limit. Golden Eagle or its contractor shall require all contractors and subcontractors to provide such Workers' Compensation Insurance for all of the subcontractors' employees. Golden Eagle or its contractor shall furnish to City a certificate of waiver of subrogation under the terms of the Workers' Compensation Insurance and Golden Eagle shall similarly require all subcontractors to waive subrogation. 7. Golden Eagle or its contractor shall carry at all times incident hereto, on all operations to be performed hereunder, general liability insurance, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability. Said insurance shall also include automotive bodily injury and property damage liability insurance. All insurance shall be underwritten by insurance companies in forms satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations and all owned vehicles and non -owned vehicles. Said insurance policies shall name the City and its officers, agents and employees, and all public agencies as determined by the City as Additional Insureds. Golden Eagle or its contractor shall subscribe for and maintain said insurance in full 4 of 9 SF-99Agree: DPh10126 04/ 16/99 - 49 0 0 force and effect during the life of this Agreement, in an amount of not less than Five Million Dollars ($5,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated aggregate limit, such limit shall be no less than Five Million Dollars (S5,000,000). In the event of aggregate coverage, Golden Eagle or its contractor shall immediately notify City of any known depletion of aggregate limits. Golden Eagle or its contractor shall require its insurer to waive its subrogation rights against City and agrees to provide Certificates evidencing the same. Prior to commencing construction of the Water Facilities, Golden Eagle or its contractor shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by Sections 6 and 7 herein; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be cancelled or modified without thirty (30) calendar days prior written notice to City. Golden Eagle or its contractor shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Golden Eagle or its contractor under Section 5 of this Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Golden Eagle or its contractor shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of Golden Eagle's or its contractor's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 5 of 9 SF-99Agree:Dah10126 04/16i99 - 49 0 0 9. In lieu of installing the final lift to Ellis Avenue between Saddleback Lane and Edwards Street, Golden Eagle and Dahl jointly and severally agree to pay the City Thirty-two Thousand Three Hundred Ninety-five and 64/100 Dollars ($32,395.64) within five (5) business days of the execution of this Agreement by all of the parties. If the City does not receive timely payment of the sum required by this Section from Dahl, Golden Eagle shall pay the sum within five (5) business days of receiving written notice from the City. 10. The City hereby releases Dahl from the Acquisition Agreement for CFD 1990-1, and Dahl hereby releases any interest in the funds of CFD 1990-1. 11. The City, on one hand, and Dahl and Golden Eagle, on the other hand, waive any claim which they, or any of them, has against the other for costs or attorneys' fees incurred in the Action. However, nothing in this Agreement should be construed to release, discharge, or extinguish any obligations which Dahl, partnerships related to Dahl, or individual indemnitors related to Dahl may or do owe to Golden Eagle, whether such obligations arise from statute, contract, equity, or otherwise. Such obligations and rights are reserved and affirmed by this Agreement. 12. Counsel for the City shall file a dismissal with prejudice to this Complaint in the Action as to Dahl and Golden Eagle within seven (7) calendar days of the completion of the Water Facilities to the satisfaction of the City Engineer. Counsel for the City shall provide counsel for Golden Eagle and Dahl with a conformed copy of the dismissal. 13. The City understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: 6 of 9 S F-99Agree: Dah10126 04' 1 W99 - #9 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 14. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 15. The City and Golden Eagle and Dahl expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, -and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 16. The City and Golden Eagle and Dahl acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The City and Golden Eagle and Dahl, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 17. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the 7 of 9 Sr-99Agree: Dah10126 04/16/99 - #9 0 prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 18. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 19. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the City and Golden Eagle and Dahl concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 20. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. 3une- DATED: -Apri+ 1999 ATTEST: L4 City Clerk CITY OF HUNTINGTON BEACH By Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 8 of 9 SF-99Agree: Dah10126 04116%99 - #9 RECEIVED SETTLEMENT OF ACTION AND RELEASE APR 19 1999 Guardian Group, Inc. WHEREAS, David Dahl, the Dahl Company, a general partnership, Central Park #8, a limited partnership, Central Park #9, a limited partnership, and Central Park #12, a California limited partnership (collectively, "Dahl') were the owner of two tracts of real property located in the City of Huntington Beach ("City") known as Tract Nos. 13269 and 13270; WHEREAS, the City granted certain development approvals to Tracts 13269 and 13270 subject to the condition that Dahl install certain water facilities and street improvements to Ellis Avenue (the "Ellis Avenue Improvements"); WHEREAS, Dahl entered into subdivision agreements with the City as to each Tract Nos. 13269 and 13270 covenanting to complete the conditions of approval, including the Ellis Avenue improvements; WHEREAS, as security for the covenants of the subdivision agreements, Dahl obtained performance bonds from Golden Eagle Insurance Company ("Golden Eagle") in favor of the City for the Ellis Avenue Improvements, known as Performance Bond No. SUR10-66-71 and Performance Bond No. SUR10-66-72; WHEREAS, in order to assist Dahl in developing the Tracts 13269 and 13270 and related tracts, the City established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"). As part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund any of the public improvements for Tract Nos. 13269 and 13270 and related tracts, then Dahl was personally responsible for installing the improvements; WHEREAS, when Dahl did not complete the Ellis Avenue Improvements, the City filed an action against Dahl and against Golden Eagle Insurance Company entitled City of Huntington 1 of 9 SF-99Agree: Dah10126 04116;'99 - #9 Beach, et al., v. David Dahl, Golden Eagle Insurance Company, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the allegations of the Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, the City on one hand, and Golden Eagle and Dahl on the other hand, are desirous of ending this Action and resolving all disputes concerning the Action, NOW, THEREFORE, it is agreed as follows: Except as provided below, the City does hereby release and discharge Golden Eagle, any and all Central Park limited partnerships related to Dahl, Dahl and each of their officers, agents, employees and successors -in -interest, from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action and to all Central Park Tracts, including but not limited to Tract Nos. 13269, 13270, 13036 and 13439, and to Golden Eagle's claims handling practices, procedures, and conduct, including claims that Golden Eagle acted in "bad faith." 2. Golden Eagle agrees to install a fire hydrant and a 12-inch water main in Ellis Avenue of 840 linear feet, pursuant to the plans and specifications for Tract Nos. 13269, 13270 and 13036, and as described in Exhibit A attached hereto (the "Water Facilities"). Golden Eagle shall further comply with all ordinary and customary requirements of the City for constructing such improvements, including obtaining all encroachment permits, inspection permits, and providing proof of certificates of insurance and City business license for Golden Eagle's contractor. (The City shall issue a "no -fee" encroachment permit for the Water Facilities, because the cost of the permit is included in the payment at Section 9 of this Agreement.) 2 of 9 SF-99Ayree: DW0126 04/ 16199 - 99 0 U 3. Golden Eagle shall begin construction of the Water Facilities within fourteen (14) calendar days of execution of this Agreement by all parties. Golden Eagle shall complete the Water Facilities to the reasonable satisfaction of the City Engineer within thirty (30) working days of beginning construction. Failure to timely begin or complete construction shall subject Golden Eagle to liquidated damages of S100 per day. 4. Golden Eagle shall warranty the Water Facilities for one year after the City Engineer accepts the Facilities. As security for the warranty, Golden Eagle shall deposit Five Thousand Dollars ($5,000) with the City. This Five Thousand Dollars ($5,000) deposit shall be held in an interest -bearing account, to be returned with interest to Golden Eagle at the end of the one-year warranty. Alternatively, Golden Eagle may deposit a certificate of deposit in a form acceptable to the City. 5. Golden Eagle, or its contractor, hereby agrees to protect, defend, indemnify and hold and save harmless City, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to Golden Eagle's or its contractor's employees and contractors and damage to Golden Eagle's or its contractor's property, arising directly or indirectly out of construction of the Water Facilities by Golden Eagle or its contractor, including those arising from the passive concurrent negligence of City, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of City. Golden Eagle's contractor will conduct all defenses at its sole cost and expense. City shall be reimbursed by Golden Eagle or its contractor for all costs and attorney's fees incurred by City in enforcing this obligation. Golden Eagle has satisfied in full its obligation under this Section by its contractor providing the insurance policies described at Sections 6, 7 and 8 herein, and an indemnity agreement satisfactory to the City. 3 of9 SF-99Agree:QahI0126 04/16/99 - #9 • • 6. Pursuant to California Labor Code Section 1861, Golden Eagle or its contractor acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; Golden Eagle or its contractor covenants that they will comply with such provisions prior to commencing construction of the Water Facilities. Golden Eagle or its contractor shall maintain Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty thousand Dollars ($250,000) bodily injury by disease, policy limit. Golden Eagle or its contractor shall require all contractors and subcontractors to provide such Workers' Compensation Insurance for all of the subcontractors' employees. Golden Eagle or its contractor shall furnish to City a certificate of waiver of subrogation under the terms of the Workers' Compensation Insurance and Golden Eagle shall similarly require all subcontractors to waive subrogation. 7. Golden Eagle or its contractor shall carry at all times incident hereto, on all operations to be performed hereunder, general liability insurance, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability. Said insurance shall also include automotive bodily injury and property damage liability insurance. All insurance shall be underwritten by insurance companies in forms satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations and all owned vehicles and non -owned vehicles. Said insurance policies shall name the City and its officers, agents and employees, and all public agencies as determined by the City as Additional Insureds. Golden Eagle or its contractor shall subscribe for and maintain said insurance in full 4 of 9 S F-99Agree: Dahl0126 04116/99 - ft9 force and effect during the life of this Agreement, in an amount of not less than Five Million Dollars ($5,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated aggregate limit, such limit shall be no less than Five Million Dollars ($5,000,000). In the event of aggregate coverage, Golden Eagle or its contractor shall immediately notify City of any known depletion of aggregate limits. Golden Eagle or its contractor shall require its insurer to waive its subrogation rights against City and agrees to provide Certificates evidencing the same. Prior to commencing construction of the Water Facilities, Golden Eagle or its contractor shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as'required by Sections 6 and 7 herein; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be cancelled or modified without thirty (30) calendar days prior written notice to City. Golden Eagle or its contractor shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and'accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Golden Eagle or its contractor under Section 5 of this Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Golden Eagle or its contractor shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of Golden Eagle's or its contractor's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 5 of 9 SF-99Agree:Dah10126 04/16i99 - 49 9. In lieu of installing the final lift to Ellis Avenue between Saddleback Lane and Edwards Street, Golden Eagle and Dahl jointly and severally agree to pay the City Thirty-two Thousand Three Hundred Ninety-five and 64I100 Dollars ($32,395.64) within five (5) business days of the execution of this Agreement by all of the parties. If the City does not receive timely payment of the sum required by this Section from Dahl, Golden Eagle shall pay the sum within five (5) business days of receiving written notice from the City. 10. The City hereby releases Dahl from the Acquisition Agreement for CFD 1990-1, and Dahl hereby releases any interest in the funds of CFD 1990-1. 11. The City, on one hand, and Dahl and Golden Eagle, on the other hand, waive any claim which they, or any ofthem, has against the other for costs or attorneys' fees incurred in the Action. However, nothing in this Agreement should be construed to release, discharge, or extinguish any obligations which Dahl, partnerships related to Dahl, or individual indemnitors related to Dahl may or do owe to Golden Eagle, whether such obligations arise from statute, contract, equity, or otherwise. Such obligations and rights are reserved and affirmed by this Agreement. 12. Counsel for the City shall file a dismissal with prejudice to this Complaint in the Action as to Dahl and Golden Eagle within seven (7) calendar days of the completion of the Water Facilities to the satisfaction of the City Engineer. Counsel for the City shall provide counsel for Golden Eagle and Dahl with a conformed copy of the dismissal. 13. The City understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: 6of9 SF-99Agree:Dah10126 04;1 W99 - #9 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 14. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 15. The City and Golden Eagle and Dahl expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 16. The City and Golden Eagle and Dahl acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The City and Golden Eagle and Dahl, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 17. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the 7 of 9 SF-99Agree:Dah10126 04116M - #9 prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 18. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 19. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the City and Golden Eagle and Dahl concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 20. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. q DATED: Apri}�, 1999 CITYORTINGTON BEACH ATTEST: By Mayor City Clerk APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 8 of 9 SF-99Agree:DA10126 04/ 16199 - #9 R1ECEIVT�D SETTLEMENT OF ACTION AND RELEASE APR 19 1999 Guardian Group, Inc. WHEREAS, David Dahl, the Dahl Company, a general partnership, Central Park #8, a limited partnership, Central Park #9, a limited partnership, and Central Park #12, a California limited partnership (collectively, "Dahl") were the owner of two tracts of real property located in the City of Huntington Beach ("City") known as Tract Nos. 13269 and 13270; WHEREAS, the City granted certain development approvals to Tracts 13269 and 13270 subject to the condition that Dahl install certain water facilities and street improvements to Ellis Avenue (the "Ellis Avenue Improvements"); WHEREAS, Dahl entered into subdivision agreements with the City as to each Tract Nos. 13269 and 13270 covenanting to complete the conditions of approval, including the Ellis Avenue improvements; WHEREAS, as security for the covenants of the subdivision agreements, Dahl obtained performance bonds from Golden Eagle Insurance Company ("Golden Eagle") in favor of the City for the Ellis Avenue Improvements, known as Performance Bond No. SUR10-66-71 and Performance Bond No. SUR10-66-72; WHEREAS, in order to assist Dahl in developing the Tracts 13269 and 13270 and related tracts, the City established City of Huntington Beach Community Facilities District No. 1990-1 ("CFD 1990-1"). As part of establishing CFD 1990-1, Dahl entered into an "Acquisition Agreement" which provided that to the extent that CFD 1990-1 was unable to fund any of the public improvements for Tract Nos. 13269 and 13270 and related tracts, then Dahl was personally responsible for installing the improvements; WHEREAS, when Dahl did not complete the Ellis Avenue Improvements, the City filed an action against Dahl and against Golden Eagle Insurance Company entitled City of Huntington 1 of9 SF-99Agree:DA10126 04/16/99 - k9 Beach, et al., v. David Dahl, Golden Eagle Insurance Company, et al., Orange County Superior Court Case No. 77-57-26 (the "Action"); WHEREAS, the allegations of the Complaint in this Action are incorporated by reference in this Agreement; and WHEREAS, the City on one hand, and Golden Eagle and Dahl on the other hand, are desirous of ending this Action and resolving all disputes concerning the Action, NOW, THEREFORE, it is agreed as follows: 1. Except as provided below, the City does hereby release and discharge Golden Eagle, any and all Central Park limited partnerships related to Dahl, Dahl and each of their officers, agents, employees and successors -in -interest, from any and all rights, claims, demands, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action and to all Central Park Tracts, including but not limited to Tract Nos. 13269, 13270, 13036 and 13439, and to Golden Eagle's claims handling practices, procedures, and conduct, including claims that Golden Eagle acted in "bad faith." 2. Golden Eagle agrees to install a fire hydrant and a 12-inch water main in Ellis Avenue of 840 linear feet, pursuant to the plans and specifications for Tract Nos. 13269, 13270 and 13036, and as described in Exhibit A attached hereto (the "Water Facilities"). Golden Eagle shall further comply with all ordinary and customary requirements of the City for constructing such improvements, including obtaining all encroachment permits, inspection permits, and providing proof of certificates of insurance and City business license for Golden Eagle's contractor. (The City shall issue a "no -fee" encroachment permit for the Water Facilities, because the cost of the permit is included in the payment at Section 9 of this Agreement.) 2 of 9 SF99Agree:DA14126 04' 16199 - #9 • • Golden Eagle shall begin construction of the Water Facilities within fourteen (14) calendar days of execution of this Agreement by all parties. Golden Eagle shall complete the Water Facilities to the reasonable satisfaction of the City Engineer within thirty (30) working days of beginning construction. Failure to timely begin or complete construction shall subject Golden Eagle to liquidated damages of $100 per day. 4. Golden Eagle shall warranty the Water Facilities for one year after the City Engineer accepts the Facilities. As security for the warranty, Golden Eagle shall deposit Five Thousand Dollars ($5,000) with the City. This Five Thousand Dollars ($5,000) deposit shall be held in an interest -bearing account, to be returned with interest to Golden Eagle at the end of the one-year warranty. Alternatively, Golden Eagle may deposit a certificate of deposit in a form acceptable to the City. 5. Golden Eagle, or its contractor, hereby agrees to protect, defend, indemnify and hold and save harmless City, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to Golden Eagle's or its contractor's employees and contractors and damage to Golden Eagle's or its contractor's property, arising directly or indirectly out of construction of the Water Facilities by Golden Eagle or its contractor, including those arising from the passive concurrent negligence of City, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of City. Golden Eagle's contractor will conduct all defenses at its sole cost and expense. City shall be reimbursed by Golden Eagle or its contractor for all costs and attorney's fees incurred by City in enforcing this obligation. Golden Eagle has satisfied in full its obligation under this Section by its contractor providing the insurance policies described at Sections 6, 7 and 8 herein, and an indemnity agreement satisfactory to the City. 3 of 9 SF-99Agree: Dah10126 041,16i99 - #9 6. Pursuant to California Labor Code Section 1861, Golden Eagle or its contractor acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; Golden Eagle or its contractor covenants that they will comply with such provisions prior to commencing construction of the Water Facilities. Golden Eagle or its contractor shall maintain Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty thousand Dollars ($250,000) bodily injury by disease, policy limit. Golden Eagle or its contractor shall require all contractors and subcontractors to provide such Workers' Compensation Insurance for all of the subcontractors' employees. Golden Eagle or its contractor shall furnish to City a certificate of waiver of subrogation under the terms of the Workers' Compensation Insurance and Golden Eagle shall similarly require all subcontractors to waive subrogation. 7. Golden Eagle or its contractor shall carry at all times incident hereto, on all operations to be performed hereunder, general liability insurance, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability. Said insurance shall also include automotive bodily injury and property damage liability insurance. All insurance shall be underwritten by insurance companies in forms satisfactory to City for all operations, subcontract work, contractual obligations, product or completed operations and all owned vehicles and non -owned vehicles. Said insurance policies shall name the City and its officers, agents and employees, and all public agencies as determined by the City as Additional Insureds. Golden Eagle or its contractor shall subscribe for and maintain said insurance in full 4 of 9 SF-99Agree: Dah10126 04i 16.99 - #9 force and effect during the life of this Agreement, in an amount of not less than Five Million Dollars ($5,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated aggregate limit, such limit shall be no less than Five Million Dollars ($5,000,000). In the event of aggregate coverage, Golden Eagle or its contractor shall immediately notify City of any known depletion of aggregate limits. Golden Eagle or its contractor shall require its insurer to waive its subrogation rights against City and agrees to provide Certificates evidencing the same. 8. Prior to commencing construction of the Water Facilities, Golden Eagle or its contractor shall furnish to City certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by Sections 6 and 7 herein, said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be cancelled or modified without thirty (30) calendar days prior written notice to City. Golden Eagle or its contractor shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by City. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Golden Eagle or its contractor under Section 5 of this Agreement. City or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. Golden Eagle or its contractor shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of Golden Eagle's or its contractor's insurance policies, naming the City, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to any payment hereunder. 5 of 9 SF-99Agree: Dah10126 04/16/99 - #9 9. In lieu of installing the final lift to Ellis Avenue between Saddleback Lane and Edwards Street, Golden Eagle and Dahl jointly and severally agree to pay the City Thirty-two Thousand Three Hundred Ninety-five and 64/100 Dollars ($32,395.64) within five (5) business days of the execution of this Agreement by all of the parties. If the City does not receive timely payment of the sum required by this Section from Dahl, Golden Eagle shall pay the sum within five (5) business days of receiving written notice from the City. 10. The City hereby releases Dahl from the Acquisition Agreement for CFD 1990-1, and Dahl hereby releases any interest in the funds of CFD 1990-1. 11. The City, on one hand, and Dahl and Golden Eagle, on the other hand, waive any claim which they, or any of them, has against the other for costs or attorneys' fees incurred in the Action. However, nothing in this Agreement should be construed to release, discharge, or extinguish any obligations which Dahl, partnerships related to Dahl, or individual indemnitors related to Dahl may or do owe to Golden Eagle, whether such obligations arise from statute, contract, equity, or otherwise. Such obligations and rights are reserved and affirmed by this Agreement. 12. Counsel for the City shall file a dismissal with prejudice to this Complaint in the Action as to Dahl and Golden Eagle within seven (7) calendar days of the completion of the Water Facilities to the satisfaction of the City Engineer. Counsel for the City shall provide counsel for Golden Eagle and Dahl with a conformed copy of the dismissal. 13. The City understands and agrees that all of its rights under Section 1542 of the Civil Code of California or any similar law of any state or territory of the United States, are hereby expressly waived. Said Section reads as follows: 6 of 9 SF-99Agree: Dah10126 04r'W99 - #9 1542. General Release -Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. 14. It is understood and agreed that this Agreement represents settlement of disputed claims and is liot to be construed as representing an admission of liability on behalf of any party to this Agreement. The parties, however, intend to buy their peace and to forever provide a full and complete release and discharge from any and all liability arising out of the transactions, matters and events more particularly identified hereinabove. 15. The City and Golden Eagle and Dahl expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 16. The City and Golden Eagle and Dahl acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement or their understanding of those facts. The City and Golden Eagle and Dahl, therefore, expressly assume the risk of such facts being so different and agree that this Agreement shall, in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 17. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the 7 of 9 SF-99Agree:Dah10126 04/ 16.199 - #9 prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 18. This Agreement shall inure to the benefit of the parties and to their respective successors, representatives and assigns, and shall be binding upon each of the foregoing. 19. This Agreement shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between the City and Golden Eagle and Dahl concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 20. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. DATED: % , 1999 ATTEST: City Clerk CITY F HUNTINGTON BEACH By Mayor APPROVED AS TO FORM: Scott F. Field, Deputy City Attorney City of Huntington Beach Its Attorney of Record 9 of 9 SF-99Agree: Dah10126 04116; 99 - #9