HomeMy WebLinkAboutC-8899-1 - Agreement and ReleaseAGREEMENT AND RELEASE
This Agreement and Release ("Agreement") is entered into between Cefalia James
("Owner"), on the one hand, and the City of Newport Beach, its past or present officers,
directors, governing body, employees, agents, predecessors, attorneys, divisions, affiliates,
representatives, successors in interest and assigns, and all persons acting by, through, under,
or in concert with any of them ("City"), on the other, with respect to the following facts.
Owner and the City may be referred to individually as a "Party" or collectively as the
"Parties" in light of the following:
RECITALS
A. On November 17, 2020, Owner submitted construction plans for a plan check
by the City for the proposed New Duplex and Garage (the "Project") at the property located
at 1027 West Bay Avenue, Newport Beach, California (the "Property").
B. The Project was assigned Plan Check No. 2120-2020 by the City.
C. On November 17, 2021 the City issued Building Permit No. X2020-2675 to
the Owner for construction of the Project.
D. On March 4, 2022 the City issued a Correction Notice related to the
building height.
E. On March 29, 2022 the architect submitted a revised elevation view to
the City for the Project and Owner agrees to reduce the height of the Project from 28'-10
7/8" to 28'-6 7/8" as reflected in the revised plan which is attached hereto as Exhibit
"A" and incorporated herein by reference.
F. Owner and City wish to settle and resolve all grievances, disputes,
controversies, claims and actions between the Parties in regards to the foregoing
Recitals, including, but not limited to, any and all causes of action, writs, claims or
demands, in order to make peaceand avoid further expenses and costs incident thereto.
NOW, THEREFORE, the Parties covenant and agree as follows:
1. The Parties acknowledge that the above recitals are true and correct and are
incorporated herein by reference into this Agreement.
2. Within 45 days from the execution of this Agreement, the Owner agrees to cause
construction documents to be prepared by a licensed architect to comply with the revised
elevation view submitted in Exhibit "A," attached hereto. Based upon the need for the Owner
to submit revised construction documents for the Project, the City agrees to approve the
elevation plan height view in Exhibit A and waive the plan check revision fees
associated with the Project.
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3. Owner does hereby and forever release and discharge the City and any past
and/or present parent, subsidiary and/or affiliated entities, as well as all direct or indirect
successors, officers, officials, directors, heirs, predecessors, assigns, agents, insurers,
employees, attorneys and representatives of the City, and each of them, past and present
("City Released Parties") from any and all causes of action, actions, judgments, liens,
indebtedness, damages, losses, claims, liabilities and demands of whatsoever kind or
character, known or unknown, suspected to exist or not suspected to exist, anticipated or
not anticipated, whether or not heretofore brought before any administrative hearing officer,
state or federal court or before any state or federal agency or other governmental entity and
from all claims arising from or related or attributable in whole or in part, to the above
recitals as well as any and all claims for discrimination, harassment, defamation, violation
of any statutory or constitutional rights, and all claims for attorneys' fees and costs relating
thereto and all claims which Owner has brought or could bring under any statute or legal
theory, including the California Civil Code, the California Fair Employment and Housing
Act, Title VII of the U.S. Civil Rights Act, and any other state, federal or constitutional
statute.
4. Owner understands that this Agreement extends to all grievances, disputes or
claims of every nature and kind, known or unknown, suspected or unsuspected, past,
present or future, arising from or attributable to the above recitals. Owner understands and
expressly agrees that this Agreement also extends to any other matter, event or claim
occurring prior to the date of execution of this Agreement. Owner further acknowledges
that any and all rights granted to them under Section 1542 of the California Civil Code, or
any other analogous federal or state law or regulation, are hereby expressly waived. Said
Section 1542 of the California CivilCode reads as follows:
SECTION 1542. CERTAIN CLAIMS AFFECTED BY
GENERAL RELEASE. A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Owner Initials
5. Owner understands and expressly agrees that this Agreement shall bind and
benefit his spouse, children, heirs, agents, attorneys, representatives and assigns.
6. There shall be no change, alteration, deletion or addition to the Property or Project
except as is specifically set forth in Exhibit A without first obtaining the prior written consent
and approval of the City. In the event of any change, alteration, deletion or addition to the
Project from what is approved in Exhibit A that expands the gross floor area by twenty percent,
proposes a deck and/or in any ways adds to the height of the Project, the height of the Project
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shall be brought into compliance with all requirements of the Newport Beach Municipal Code.
7. Owner acknowledges that he/she has carefully read and reviewed this
Agreement and has been allowed ample time to seek independent legal counsel of
his/her choosing or has obtained legal counsel to advise fully of the legal and binding
effect of its terms. Owner acknowledges that the only promises made to induce them to
sign this Agreement are those stated herein. Having been fully advised and informed,
Owner voluntarily enters into this Agreement, including the waiver of rights covered
by this Agreement.
8. Owner hereby covenants not to sue or initiate against the City Released
Parties, any action or proceeding or to participate in same, individually, or as a member
of a class, under any policy, contract, law or regulation, federal, state or local, pertaining
in any manner whatsoever to the above recitals, pursuant to any rights Owner may have
under any policy, or local, state or federal statute, law, or regulation.
9. Owner represents that he/she has not assigned or transferred, or purported
to assignor transfer, to any person or entity, any claim or any portion thereof or any
interest therein against the City Released Parties.
10. The Parties agree to bear their own costs and attorneys' fees incurred in
connection with all matters resolved by this Agreement, whether or not incurred as of
the date of this Agreement.
11. This Agreement constitutes a single, integrated contract expressing the
entire agreement of the Parties hereto. There are no other agreements, written or oral,
express or implied between the Parties hereto, concerning the subject matter hereof,
except the agreements set forth herein. The recitals, which the Parties agree are true and
correct, shall be deemed an integral part of this Agreement. This Agreement shall
supersede any and all prior agreements, either written or oral, express or implied,
between the Parties concerning the subject matter hereof:
12. Each Party and representative for each Party to this Agreement has
reviewed this Agreement, and accordingly, the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting parties will not be employed
in any interpretation of this Agreement.
13. This Agreement may be executed as one or more counterparts, and each such
counterpart shall be deemed an original as to the Party to be charged.
14. No waiver of any Party of any breach of any term or provision of this
Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or
succeeding breach of the same, or any other term or provision hereof. No waiver shall
be binding unless in writing and signed by the Party to be charged or held bound.
15. Should any provision of this Agreement be declared or determined by any
Page 3
court to be illegal or invalid, the validity of the remaining parts, terms or provisions
shall not be affected -thereby and said illegal or invalid part, term or provisions shall be
deemed not to be a part of this Agreement.
16. All Parties acknowledge that they are competent to sign this Agreement, and
they do so voluntarily. All Parties to this Agreement further acknowledge that they have
had an opportunity to review this Agreement prior to executing it and have had an
opportunity to, and did, consult legal counsel of their own choosing prior to executing this
Agreement regarding the terms of this Agreement and whether or not to execute this
Agreement.
17. Notwithstanding anything herein to the contrary, the effectiveness of this
Agreement, including the release therein, is conditioned upon the issuance of a certificate
of occupancy by the City for the Project; provided, however, nothing herein shall be deemed
to require the City to issue a certificate of occupancy for the Project unless Owner has otherwise
satisfied all applicable conditions for the issuance thereof.
[SIGNATURES ON FOLLOWING PAGE]
Page 4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: c3 2
By:
Aaron arp
City A mey
ATTEST:
Date: 2
By:
Lei
Cit,
CITY OF NEWPORT BEACH,
a California al corporation
Date: to j =*.ZZ-
By:
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City anager
OWNER:
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Attachment: Exhibit A -1027 West Bay Avenue Elevation
Page 5
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