|
|
|
|
::: COMMUNITY NEWS Full text of Letter Agreement legal document Published Monday, December 30, 2002 Here is the full text of the Letter Agreement released Friday by the Rancho Murieta Association. May 2, 1997 LETTER AGREEMENT This letter ("Letter Agreement") will serve as a binding letter of intent to confirm the settlement reached on December 24, 1996, including several clarifications agreed upon subsequent to that date, between the Rancho Murieta Association, a California nonprofit mutual benefit corporation ("RMA") and Murieta Townhouses, Inc., a California nonprofit mutual benefit corporation ("MT1"), as plaintiffs in the Litigation described below, and Pension Trust Fund for Operating Engineers and First Interstate Bank of California as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers (collectively "PTF"), as defendants. After this Letter Agreement has been signed by the parties, a more formal settlement agreement will be prepared and entered into on substantially the same terms and conditions set forth below. 1. Definitions In addition to other terms defined throughout this Letter Agreement, the following terms shall have the following meanings: (a) The "Litigation," as used in this Letter Agreement is intended as a collective term which means and refers to all claims, demands, defenses, causes of action or theories of liability or damages as well as equitable relief and other remedies asserted by RMA and MTI against PTF and by PTF against RMA and MTI in the following three pending actions: Rancho Murieta Association and Murieta Townhouses, Inc. v. Pension Trust Fund for Operating Engineers and First Interstate Bank of California as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers, Sacramento County Superior Court Case Number 96AS03878 ("RMA and MTI's Action"); First Interstate Bank of California as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers v. John B. Anderson, et al, Sacramento County Superior Court Case Number 93-531590 (the "Anderson Foreclosure Action") in which RMA and MTI were named as defendants and who filed a cross-complaint; and First Interstate Bank of California as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers v. Winncrest Homes, et al, Sacramento County Superior Court Case Number 93-534244 (the "Winncrest Foreclosure Action") in which RMA was named as a defendant. (The Anderson Foreclosure Action and Winncrest Foreclosure Action are collectively referred to as "PTF's Foreclosure Actions.") (b) "Settlement" shall mean and refer to the terms for settlement of the Litigation set forth in this Letter Agreement, as those terms are subsequently embodied in a more formal settlement agreement (the "Settlement"). (c) "Rancho Murieta" means all the lands included within the Rancho Murieta Planned Development Ordinance of Sacramento County, including those portions of the Rancho Murieta Planned Development that have not been annexed to the Rancho Murieta common interest development and thereby subjected to the currently recorded Second Restated Declaration of Covenants, Conditions and Restrictions for Rancho Murieta (the "Declaration of CC&Rs") and the jurisdiction of RMA. (d) "Stonehouse Site" means the real property described as County Assessor's Parcel 073-0190-046. (e) "RMA's Lien Claims" means any claim of assessment liens and the deed of trust referenced in Section 2. (f) "Park Sites" means the Stonehouse Site, the Calero Park Site (8± acres); Murieta Parkway Park (1 0± acres); Clementia Lakeside Park site (8± acres), Rancho Murieta South Neighborhood Park (7± acres); and Rancho Murieta South Remote Park (2± acres). Any reference in this Agreement to the eight (8±) acre Clementia Lakeside Park is not intended as a release of RMA's right to acquire or develop the twenty (20±) acres adjacent to the Clementia Lakeside Park as the Clementia Community Park as contemplated in paragraph 2.B of the Park Development Agreement recorded on February 21, 1991. (g) "Park Development Agreements" is a collective term which means the following three agreements, to the extent that any of the described agreements pertain to real property that is subject to the PTF Foreclosure Actions: (i) the Agreement of September 19, 1990 by and among the RMA, the District, Winncrest Homes, Inc., F.N. Projects, Inc., and N.T. Hill, Inc.; (ii) the Agreement dated February 20, 1991 by and among the RMA, the District, Rancho Murieta Properties, Inc., CBC Builders, Inc., and SHF, Inc.; and (iii) the Agreement dated June 28, 1991 by and among the RMA, the District, and the First Interstate Bank of California as the Corporate-Co-Trustee for Pension Trust Fund for Operating Engineers. (h) "District" shall mean the Rancho Murieta Community Services District. (i) "Industrial Parcel" shall mean the land located immediately adjacent to the existing CSD Facility and commonly known as the Industrial Parcel. 2. Stay of RMA and MTI Action and Dismissals Within 5 days from execution of this Letter Agreement by all parties, RMA and MT1 will stay the proceedings in RMA and MTI's Action against the PTF, and dismiss without prejudice their cross-complaint in the Anderson Foreclosure Action upon PTF consenting to the Park Development Agreements. PTF also shall consent to the Park Development Agreements in the proposed order of judgment in PTF's Foreclosure Actions (it being intended that any encumbrances of the Park Development Agreements shall survive PTF's Foreclosure Actions). In conjunction with the dismissal, RMA and MTI will release their claim of assessment liens asserted in the Anderson Foreclosure Action and reconvey their deeds of trust (recorded July 19, 1991in Book 91-07-19, pages 225 and 226, official records of Sacramento County) plus release any other claim of assessment liens through the date of foreclosure. In the Winncrest Foreclosure Action, PTF will dismiss, without prejudice, RMA in that Action. 3. Conveyance of the Stonehouse Site At the time the Park Development Agreements were executed, the area known as the Stonehouse Site was (and continues to be) a single parcel of land, approximately 26 acres in size. Title to the Stonehouse Site is presently held by the District. PTF shall use reasonable best efforts to cause the entire Stonehouse Site to be conveyed by the District to RMA free and clear of any liens or encumbrances, other than liens for current taxes and assessments, easements for sewer effluent and rights of way of record, and without the necessity of any payment by RMA to the District. Because PTF will need to convey a portion of the Industrial Parcel (which it anticipates acquiring in the Anderson Foreclosure Action) to the District in exchange for the District conveying the Stonehouse Site to RMA, conveyance of the Stonehouse Site to RMA is conditioned on PTF having obtained title to the Industrial Parcel in the Anderson Foreclosure Action and such action becoming final. PTF shall use its reasonable best efforts to cause a portion of the Industrial Parcel to be conveyed to the District and to cause the Stonehouse Site to be conveyed by the District to RMA as soon as reasonably possible if all of the foregoing has occurred. Also underway as of the date of this Letter Agreement are negotiations between RMA and the District to transfer title to a guard house facility located at the entrance to Rancho Murieta south from the District to RMA. In cooperation with RMA, PTF's reasonable best efforts hereunder shall include efforts to effect transfer of title to the guard house facility as an element in the Stonehouse/Industrial Parcel three-way exchange; provided however this transfer shall not place any additional burdens on PTF. However the parties agree that should the District decline to include the guard house facility in the exchange and all other conditions for a Stonehouse/Industrial Parcel exchange have been satisfied, the exchange shall proceed. The cost of any appraisals required by the District to support its disposition of the Stonehouse Site and the cost of exchanging property with the District in order to enable the District to convey the Stonehouse Site (subject to the provisions of Section 9(f)) shall not be borne b RMA or MTI. RMA,and MTI shall pay the cost of any title insurance they desire with respect to the Park Sites, including the Stonehouse Site. If the Industrial Parcel is not acquired in the Anderson Foreclosure Action, PTF shall have no obligation to acquire real property, in order to affect an exchange with the District. In the event the Stonehouse Site cannot be conveyed in a condition acceptable to RMA, RMA and MTI shall be entitled to pursue RMA and MTI's Action against PTF as provided in Section 6 and PTF shall be entitled to pursue any rights, claims or defenses against RMA or MTI. As of the date of this Letter Agreement the Industrial Parcel is not a separate parcel. However, conditioned on PTF obtaining title to the Industrial Parcel in the Anderson Foreclosure Action, PTF shall cooperate in good faith with the District to create a parcel with a configuration and location that are reasonably acceptable to the District and PTF. 4. Continuation of Park Development Agreements The Park Development Agreements were recorded as encumbrances against land owned by Rancho Murieta Properties, Inc. ("RMPI") and Winncrest subsequent to recordation of the RMPI and Winncrest deeds of trust that are the subject of PTF's Foreclosure Actions. As to the lands subject to PTF's Foreclosure Actions, PTF will consent to the Park Development Agreements (it being intended that any encumbrances of the Park Development Agreements shall survive PTF's Foreclosure Actions) and concurrently with such consent RMA and MTI shall stay RMA and MTI's Action, dismiss RMA's Lien Claims and dismiss its cross-complaint in the Anderson Foreclosure Action. To accomplish this objective, PTF shall use its reasonable best efforts to cause any order of judgment entered in the PTF Foreclosure Action to include PTF's consent to the Park Development Agreements, with the understanding as to commencement of payment of fees for unannexed lands as set forth in this Section 4. In the event PTF acquires the Park Sites through foreclosure, it shall convey title to RMA as provided in Section 5, but PTF shall not assume Winncrest's obligation pursuant to the Park Development Agreements to complete construction of the park facilities, including the community center planned for the Rancho Murieta South Neighborhood Park. RMA shall accept the Rancho Murieta South Neighborhood Park and the Rancho Murieta South Remote Park from PTF without completion of the park facilities, but without waiver of any claims or rights RMA may have to seek contributions for the construction of such facilities from third parties. In the event PTF acquires and develops the land containing these two park sites, the obligations contained in the Park Development Agreements to pay fees or otherwise finance park improvements for these two park sites, as set forth in the Parks Development Agreements, shall apply pro rata only to the land acquired and developed by PTF. One of the primary intentions of the Park Development Agreements is to ensure that recreational facilities and parks within Rancho Murieta are developed as private common areas owned by RMA. Nevertheless, it is possible under the Declaration of CC&Rs for Rancho Murieta that portions of the overall Rancho Murieta development, including lands currently owned by RMPI and Winncrest and subject to PTF's Foreclosure Actions, will not be annexed to the Rancho Murieta common interest development or subjected to the jurisdiction of RMA. The Declaration of CC&Rs contains provisions that permit annexation, but those provisions currently require that all annexations be approved by RMA's current membership. PTF acknowledges its awareness of these limitations on rights to annex to the existing Rancho Murieta common interest development. Notwithstanding these limitations, PTF's obligations, if any, to convey Park Sites to RMA as set forth in this Letter Agreement is not contingent upon annexation of the subdivision tracts which include the Park Sites. RMA acknowledges that the conveyance of Park Sites to it before the times set forth in the Park Development Agreements does not, by itself, obligate PTF or its successors to subdivide the tracts containing the Park Sites. Although the parks and recreational facilities developed by RMA pursuant to the Park Development Agreements will be common areas (as defined in the Declaration of CC&Rs), the Settlement Agreement shall contain provisions which will obligate RMA to grant easements of use and enjoyment of parks, lakes and recreation facilities located on Park Sites within Rancho Murieta to owners of lots and units within unannexed phases of the overall Rancho Murieta development provided that (i) all fees and contributions required of a developer of any unannexed phase pursuant to the Park Financing Plan set forth in the Park Development Agreements have been paid to construct the parks located in the unannexed phase or reimburse RMA for the construction of same; and (ii) the developer of such phase and RMA have entered into an agreement ("Contribution Agreement"), imposing an obligation running with the land comprising the lots, parcels and units within the unannexed phase so that the owners of lots, parcels or units in that phase are obligated to contribute the same amount as any comparable RMA member for (x) operating expenses (including a reasonable overhead allocation); (y) capital replacement reserves for parks, lakes and recreational facilities located on Park Sites available for the use and enjoyment of such owners; and, (z) a share of the cost of improvements of future parks developed by RMA, the use and enjoyment of which will be available to such owners. In the event settlement of the Litigation is not reached, but any Park Site is nevertheless conveyed by PTF or other person to RMA and provided the consent to the Park Development Agreements becomes effective as provided in Section 4, then the owners of lots in any unannexed phase shall be entitled to use the parks, lakes and recreational facilities located on Park Sites within Rancho Murieta provided they are obligated to contribute to the costs thereof, as defined above, under the terms of any Contribution Agreement entered into by any developer of such phase. Any Contribution Agreement shall include at least the following provisions: (i) that the sums due from any owner (including the developer) of lots or units in the unannexed phase must be paid to the RMA at the same time as RMA member assessments are payable, unless RMA agrees to payment at other intervals, provided however that the developer's and RMA's payment of fees for parks for any phase of a development project shall not commence until the closing of the sale of the first lot in such phase; (ii) that the sums due from such owners shall be collected from the owners and remitted to RMA by an association, as defined in Civil Code section 1351, composed of owners within the unannexed phase (the "Phase Association"); (iii) that the Phase Association shall be jointly and severally liable with its owners for the proper and timely payment of the sums due from delinquent owners within the phase; (iv) that the Phase Association diligently pursue collection of the sums due through means provided under the Civil Code and the Phase Association's governing documents (v) that the RMA shall be a third party beneficiary of the obligation of owners of lots or units in an unannexed phase to make timely payment of such sums; (vi) that owners of lots and units within the unannexed phase shall have the same rights as RMA members to use and enjoyment of the parks, lakes and recreational facilities located on Park Sites so long as their Phase Association is current in the payment of sums due; (vii) that amendments of any of the foregoing provisions of the Contribution Agreement shall require prior written consent of RMA; and (viii) that disputes arising with respect to the appropriate burden to be borne by owners of lots and units within any unannexed phase shall be resolved through AAA arbitration unless otherwise mutually agreed by the parties. It is intended that the terms of the Park Development Agreements shall be modified to conform to the terms of this Section 4. In the event of any conflict between the Park Development Agreements and the terms of this Letter Agreement, this Letter Agreement shall govern. 5. Conveyance of Park Sites to RMA If as the result of PTF's Foreclosure Actions, PTF acquires title to any of the Park Sites, and provided RMA and MTI first file dismissal of RMA and MTI's Action, with prejudice, PTF shall cause such Park Sites to be conveyed to RMA, subject to all matters affecting title upon completion of foreclosure, except delinquent real property taxes and the lien of any assessments for Improvement District No.1 Improvement Bonds and CFD No.1 Special Tax Bonds. PTF will engage a land planner to determine the ideal location for all Park Sites, other than the Stonehouse Site for which the parties have already agreed on its location, subject to RMA's reasonable approval. The parties agree that with the exception of the Stonehouse Site, it is the shared objective of the parties that the land planner identify Park Sites that are consistent with the intent expressed in the Park Development Agreements. The precise location of each of these Park Sites shall be shown or described in exhibits to the Settlement Agreement, provided, however that if the land planner has not completed work at the time the Settlement Agreement is ready for execution, the parties agree that the descriptions can be added as exhibits following execution of the Settlement Agreement. PTF shall also contemporaneously convey rights of way and access easements over its land for purposes of allowing RMA's members ingress and egress to each of the Park Sites. The access easements may be relocated to public roads or other reasonable access routes to accommodate the development of the subdivisions containing the Park Sites. Until a phase containing a Park Site has been subdivided, RMA may improve its access easements to Park Sites in undeveloped phases at its sole discretion and expense, shall maintain the access easements, shall maintain insurance against claims from its members' use of the easements and shall indemnify PTF or its successors from claims arising from use of the easements until such time as the obligation to maintain such access easements, or any roads to which the easements are relocated, is assumed by an owners association or governmental agency. If PTF acquires title to any of the Park Sites in PTF's Foreclosure Actions, it shall convey such Park Sites to RMA within thirty days after the last of the following events have occurred: (i) title to such Park Sites has been acquired by PTF in PTF's Foreclosure Actions and such action has become final, including but not limited to, the expiration of any redemption period in the Winncrest Foreclosure Action; (ii) dismissal with prejudice of RMA and MTI's Action; and, (iii) conveyance of such Park Sites will comply with the Subdivision Map Act and other applicable laws and regulations, as provided in section 9(f), below. Failure to satisfy condition (i) and/or (iii) as to any particular Park Site parcel shall not affect PTF's obligation to transfer other Park Sites as to which all three conditions have been satisfied. Title shall be conveyed subject to all matters affecting title upon completion of foreclosure, except delinquent real property taxes and the lien of any assessments for Improvement District No.1 Improvement Bonds and CFD No.1 Special Tax Bonds. 6. Effect of PTF's Not Acquiring Park Sites In the event that PTF does not acquire title through foreclosure to the Park Sites or does not acquire title to the Industrial Parcel to be exchanged with the District (in a condition acceptable to the District) for the Stonehouse Site (as provided in Section 3), and the party acquiring the Park Sites (or any of them) or the Industrial Parcel in PTF's Foreclosure Actions is unwilling to convey the Park Sites or to participate in the exchange for the Stonehouse Site, RMA and MTI may pursue their claims against PTF under RMA and MTI's Action without any prejudice to their rights as a result of staying the proceedings and dismissal of RMA's Lien Claims as provided in Section 2 of this Agreement and PTF shall be entitled to pursue any rights, claims or defenses against RMA or MTI. 7. Mutual Releases of Claims At such time as all obligations of the parties have been performed and conditioned on conveyance to RMA of the Park Sites, PTF, RMA and MTI will provide mutual general releases of all known and unknown claims, including a waiver of the benefits of Civil Code § 1542 relating to all claims stated in the Litigation currently maintained by RMA, MTI and PTF against each other as identified above. 8. Enforceability of this Binding Letter Agreement RMA, MTI and PTF agree that this Letter Agreement is separately enforceable in accordance with Code of Civil Procedure § 664.6 in the event the parties are unable to enter into a Settlement Agreement on substantially the same terms as contained herein. The court shall have continuing jurisdiction to enter a judgment enforcing this Letter Agreement and may award attorneys' fees and sanctions for noncompliance with its terms, if necessary. 9. Miscellaneous Terms (a) All transfers of Park Sites to RMA, and the creation and acquisition of the Park Sites, shall occur without any expense to RMA and MTI, provided that the Park Sites are first conveyed to the District and from the District to RMA as provided in Section 9(f). (b) Each party shall bear its own attorneys fees and costs. (c) Within thirty days following execution of the Settlement Agreement, PTF shall order and deliver to RMA a preliminary title report on the Rancho Murieta South Remote Park. Preliminary title reports shall be ordered by PTF and delivered to RMA on the other Park Sites upon PTF acquiring an interest in the Park Sites pursuant to PTF's Foreclosure Actions. (d) The deed conveying any of the Park Sites to RMA shall be a grant deed and shall designate each parcel as "common area" as that term is defined in California Civil Code section 1351(b). This will facilitate RMA's ability to avoid incurring property taxes on such parcels. The Park Sites shall be conveyed to RMA, and the Industrial Parcel to the District, in an "as is" condition without any representations or warranties whatsoever, including but not limited to conditions of soils, improvements, or the absence of toxic materials. (e) All parties shall undertake in good faith to execute all necessary documentation to accomplish the purposes of this Letter Agreement and to diligently pursue implementation of this Letter Agreement. This obligation shall not be construed to require PTF to subdivide the lands within Rancho Murieta. (f) All parties shall use reasonable best efforts to cause the transfers of the Park Sites to RMA to be accomplished through a conveyance to the District. Although all parties desire to structure the transfers in this manner, PTF and the District do not warrant that such transfers will comply with the Subdivision Map Act or other laws or regulations. In the event that one or more of the Park Sites cannot be transferred to RMA through the District, PTF will cooperate (but without expense to PTF) with all efforts to create separate Park Site parcels where necessary and to convey those Park Sites to RMA through other means. (g) The Settlement entered into by this Letter Agreement, as well as this Letter Agreement, shall be deemed the product of their joint efforts and not interpreted strictly for or against any party. (h) There are no third party beneficiaries to this Letter Agreement. Nothing in this Letter Agreement shall affect any person's rights to enforce obligations against persons not party to this Letter Agreement. The provision of this subparagraph shall also apply to the Settlement Agreement contemplated hereunder. (i) In the event the Settlement cannot be achieved, and except with respect to the obligations of the parties incurred under this Letter Agreement, either party may pursue any remedies available and nothing in this Letter Agreement shall be construed as a waiver or release of any right, defense or claim. (j) The parties by their signature below each warrants and represents that it has the power and authority to enter into this Letter Agreement and that its signatory is duly empowered to sign this Letter Agreement on its behalf. (k) This Letter Agreement may be executed in any number of counterparts with the same effect as if the parties had all signed the same document. All counterparts shall be construed together and shall constitute one agreement. Approved as to Form and Content: Attorneys for Pension Trust Fund for Operating Engineers; and First Interstate Bank of California as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers. Van Bourg,
Weinberg, Roger & Rosenfeld Stanton,
Kay & Watson Attorneys
for Rancho Murieta Association and Murieta Townhouses, Inc. The Foregoing Terms and Conditions Are Acceptable Rancho
Murieta Association Murieta
Townhouses, Inc. Wells Fargo Bank (as successor in interest to First Interstate Bank of California), as Corporate Co-Trustee for Pension Trust Fund for Operating Engineers Signed by: Arthur
A. Londos
|
|