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Home My WebLink AboutC-3740 - Settlement Agreement and Release (San Francisco County Superior Court Case No. CPF-03-503862)SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (this "Agreement") is entered into as of October 18, 2004, by and between the Wetlands Action Network, a California non -profit public benefit corporation ( "WAN "), The Irvine Company, a Delaware corporation ( "TIC "), The Related Companies of California, LLC, a California limited liability company improperly named in this action as The Related Companies, a Delaware Corporation ( "Related"), and the City of Newport Beach, California, a California municipal corporation (the "City"). WAN, TIC, Related, and the City will be referred to within this Agreement as the "Parties." RECITALS This Agreement pertains to the following facts: A. On or about December 31, 2003, WAN filed Petition for Writ of Mandate in San Francisco County Superior Court naming the California Coastal Commission (the "Commission'D and the City as Respondents and the City, TIC, and Related as Real Parties in Interest (the "Action "). The Action bears Case No. CPF- 03- 503862. B. The Action relates to Coastal Development Permit No. 5- 03-091 which was approved by the Commission on November 5, 2003, and was issued on May 24, 2004 (the "CDP "). The CDP pertains to two projects (the "Projects ") located on two sites comprising 15 -acres at the northwest comer of Pacific Coast Highway and Jamboree Road in the City. For purposes of this Agreement, the Projects include only that development authorized. I by the CDP. C. The Projects generally consist of (1) a 120 -unit senior affordable housing project and (2) an approximately ten -acre park. D. Marcia Hanscom ( "Hanscom "), the President and Executive Director of WAN and a signatory to this Agreement, will be personally bound by the obligations of WAN to the extent that Hanscom purports now or in the future to be acting as a successor to WAN or as a member of an unincorporated association acting as a successor to WAN or on WAN's behalf. AGREEMENT The Parties agree as follows: 1. WAN shall dismiss the Action with prejudice against the City, TIC, Related, and the Commission and shall not further prosecute the Action in any form or forum. Fully executed and complete forms of dismissal have been transmitted to Counsel for the City, TIC, Related, and the Commission concurrent with the signing of this Agreement 2. WAN shall be paid the sum of Ninety Thousand Dollars ($90,000.00) by one or more cashiers checks made payable to the Law Offices of Thomas N. Lippe in Trust for Wetlands Action Network. Payment shall be made within seven calendar days of the dismissal of the Action. 70023539.PDF 3. Each of the Parties waives any right to attorneys fees, costs, or any other award related to the Action, except that the City shall indemnify WAN and hold WAN harmless from any liability for the Commission's costs of suit in the event that the Commission files a Memorandum of Costs in the Action. 4. By signing this Agreement, none of the Parties is making any admission as to any material fact or contention alleged in the Action. In fact, TIC, Related, the City, and the Commission continue to deny the allegations of WAN and WAN continues to deny the allegations of TIC, Related, the City, and the Commission in the Action. 5. None of the Parties shall issue a press release pertaining to this Agreement, but any of the Parties may respond to inquiries from any news media regarding the terms of this Agreement. To the extent required by law and only to that extent, any Party may release a copy of this Agreement. Given the inherent difficulty in establishing the damages which would arise from a breach of this provision of this Agreement, the Parties agree that $1,000 is a reasonable sum to be awarded as damages and establish $1,000 as the liquidated amount of damages for a breach. Any dispute pertaining to an alleged breach of this provision shall be resolved through binding arbitration in the County of San Francisco pursuant to the rules of the American Arbitration Association. No claim shall be asserted under this provision by any of the Parties after October 18, %11. 6. Except as provided in Paragraph 7 below, and only to that extent, TIC, Related, and the City, on the one hand, and WAN, on the other, release, waive and forever and absolutely discharge each other, their agents, servants, officers, directors, shareholders, employees, partners, principals, and all other related persons and entities, from any and all claims, demands, rights, liabilities, damages, causes of action of every kind and nature, whether lmown or tmknown, anticipated or unanticipated, at law or in equity, which relate in any way to the CDP or the Projects or which may arise from the filing or prosecution of the Action. 7. WAN covenants and agrees that it will neither bring nor voluntarily provide material support for any legal action in court brought by any person or entity which relates to the CDP or the Projects. For purposes of this paragraph, "material support" means spending staff time or providing financial support. This provision does not restrict WAN from appearing before the California Coastal Commission to address matters pertaining to the CDP or the Projects. 8. The Parties understand and agree that, with respect to the releases contained within this Agreement, the Parties expressly and voluntarily waive and relinquish all rights and benefits arising under California Civil Code Section 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE 70023539.PDF 6 RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. The Parties acknowledge that this waiver and relinquishment is an essential and material term of this Agreement without which the Parties would not have entered into this Agreement. 9. This Agreement shall be construed, interpreted, and enforced in accordance with the laws of the State of California_ 10. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which, together, shall be deemed to constitute a single document. This Agreement may be executed and signature pages exchanged by facsimile, and a facsimile signature shall have the same force and effect as an original signature. 11. This Agreement constitutes the entire and final agreement between the Parties with respect to the subject matter of this Agreement. This Agreement shall supercede all prior or contemporaneous discussions, agreements, and understandings among the Parties, whether written or oral, express or implied, relating in any way to the subject matter of this Agreement. 12. Each person signing this Agreement represents and warrants that he or she is authorized to sign this Agreement on behalf of and to bind the entity on whose behalf such person's signature is affixed. 70023539.PDF 3 13. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns, including any individuals or alleged unincorporated associations claiming to be a successor to WAN or to act in the place of or on behalf of WAN due to its status as a suspended corporation. 14. The Parties have signed this Agreement as of October 18, 2004. WETLANDS ACTION NETWORK, a THE CITY OF NEWPORT BEACH, a California public benefit corporation California municipal corporation f 0 Marcia Hanscom, President and Executive Director THE IRVINE COMPANY, a Delaware corporation WM LZ M Lavonne Harkless, City Clerk THE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company, Inc., a Delaware Corporation, its managing member Patricia Frobes, Senior Vice President, General Counsel and Secretary By: 70023539.PDF 4 William A. Witte, President 10 -18 -04 04:47pm from - . T -094 P.005/005 F -030 13: This Agmedi I shall be binding on, and shall itium to ine benefit of, the Parries and their respective buirs, legal representatives, successors, and assigns, including any individuals or Wleged unincorporated associafsons claiming to be a successor w WAN or to act in the place of or on behalf of WART due to its stints as a suspended corporation. 14. The Parties have signed &As Agreement as of October 18, 2004_ WETLANDS ACTION NETWOM a VILE CITY OF NEWPORT BEACK a California public benefit corporation CaGfomiamunicipai corporation By:11.f�sar�r►�./ �y Marcia Hanscom. President and Tod Ridgeway, Mayor . Execadve Director By: L avenne Harkless, City Clerk THE IRVINE COMPANY, a Delaware THE RELATED COMPANIES OF corporation CALIFORNIA, L LC, a California limited liability company By: The Nicholas Company, Inc., a Delaware By: Corporarion, its managing member Patricia Frobes , Senior Vice President, By. Genczai Counsel and Secretary Wiffia p,, Witte, President 7W3i19.POF 4 S'd so®$ LLL Sib •N sewowl do Sar+T330 men de[ =b0 sa at Sao 11 -03 -04 11:20am From- T -152 P.003/005 F -182 13. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns, including any individuals or alleged unincorporated associations claiming to be a successor to WAN or to act in the place of or on behalf of WAN due to its status as a suspended corporation. Lt. The Parties have signed this Agreement as of October 18, 2004. WETLANDS ACTION NE,TWOM a THE CITY OF NEWPORT BEACH, a California public benefit corporation California municipal corporation t By: Marcia Hanscom, President and Executive Director THE IRVINE COMPANY, a Delaware corporation M 0 0 Lavonne Harkless, City Clerk THE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company, Inc., a Delaware Corporation, its managing member Patricia Probes, Senior Vice President, General Counsel and Secretary By: William A. Witte, President 70023539.PDF 4 11-03 -04 11:20am From- T -152 P. 0041005 F -18Z 13. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns, including any individuals or alleged unincorporated associations claiming to be a successor to WAN or to act in the place of or on behalf of WAN due to its status as a suspended corporation. 14. The Parties have signed this Agreement as of October 18, 2004. WETLANDS ACTION NETWORK, a THE CITY OF NEWPORT BEACH, a California public benefit corporation California municipal corporation M Marcia Hanscom, President and Executive Director THE IRVINE COMPANY, a Delaware corporation By: 9,/- i L,t i Patricia Frobes, Senior Vice President, General Counsel and Secretary 70023539.PDF 4 By: By: Tod Ridgeway, Mayor Lavonne Harkless, City Clerk THE RELATED COMPANIES OF C.ALLFORN.IA, LLC, a California limited liability company By: The Nicholas Company, Inc., a Delaware Corporation, its managing member wo William A. Witte, President 11-03 -04 11:20am Prom- T -152 P.005/005 P -18Z 13. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns, including any individuals or alleged unincorporated associations claiming to be a successor to WAN or to act in the place of or on behalf of WAN due to its status as a suspended corporation. 14. The Parties have signed this Agreement as of October 18, 2004. WETLANDS ACTION NETWORK, a California public benefit corporation 0 Marcia Hanscom, President and Executive Director THE IRVINE COMPANY, a Delaware corporation WA ramcia rrooes, mentor vtce rresruent, General Counsel and Secretary 70023539.FDF n THE CITY OF NEWPORT BEACH, a California municipal corporation an M Tod Ridgeway, Mayor Lavonne Harkless, City Clerk THE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company n .,a Delaware Corporation, its mana t b. By: William A. Witte, Preside CITY OF NEviPORT BEACH 3300 NEWPORT BLVD. NEWPORT BEACH, CALIFORNIA 92658 1949) 644 -31 17 ORDER TRUST FOR WETLANDS ACTION NETWORK OF VD 10 3 18 40 1: L 2 2016.066.0:: 0.23rrr69 'arIs1'. CITY OF NEWPORT BEACH VENDOR NO. 90008125 CHECK NO. 103184 90008125 THOMAS N. LIPPE LAW OFFICES, ORANGE COONT`F'AIRPOriiARANCH #023,. .T6' -1$06 CITY NATIONAL BANK 18111 VonKarman Ave. Ir.�r6e, California CHECK DATE CHECK. NO (949)223 -9000 10/18(04 103'184 ananTrnTm` Paxxxzn -nnnnn .. ORDER TRUST FOR WETLANDS ACTION NETWORK OF VD 10 3 18 40 1: L 2 2016.066.0:: 0.23rrr69 'arIs1'. CITY OF NEWPORT BEACH VENDOR NO. 90008125 CHECK NO. 103184 90008125 THOMAS N. LIPPE LAW OFFICES,