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HomeMy WebLinkAboutC-3784 - Settlement Agreement and Mutual ReleaseC- 39 8y SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ( "Agreement ") for reference purposes dated February 16, 2005, is made and entered, into by and between DON and JUDITH ROTHMAN (collectively the Rothmans), CHARLES and KRISTINE GATES (collectively the Gates ), and the City of Newport Beach, with reference to the following: RECITALS A. The ROTHMANS are the owners of the property commonly known as 501 J Street, Newport Beach, California; B. The GATES are the owners and developers of the single- family residence on the property commonly known as 505 J Street, Newport Beach, California ( the Subject Property ); C. A dispute has arisen between the parties concerning the development of the Subject Property by the GATES and the City's approval of a Special Circumstance Variance ( SCV ) for the Subject Property. The City Plan ning and Building Departments have approved plans that the Planning Director has determined complies with the SCV. For purposes of this Settlement Agreement the term Approved Plans shall mean Plancheck 2727 -2002 approved on February 13, 2003. D. The ROTHMANS have appealed the Planning Director's decision to approve the Approved Plans and filed a Petition for Writ of Mandate against the City of Newport Beach ( the City ) and the City's Planning Director and Planning Commission as Respondents (collectively the City Respondents ), and the GATES as Real Parties in Interest, in Orange County Superior Court, Case No. 04CC09984 ( the Writ Proceeding ), concerning the development of the Subject Property and the approvals granted to the GATES by the City for its development; E. On January 28, 2005 City reviewed and was prepared to approve the Approved Plans together with all previous approved revisions through December 29,. 2004 shown on revised sheets A -2, A -3, A -4, S -2 and S -3 as Delta P (collectively the Delta P Plans ), subject to agreement of the ROTHMANS to this Agreement and the Settlement Plans, as described below. The ROTHMANS and the GATES, and the ROTHMANS and the City, wish to resolve all disputes between themselves concerning the GATES' development of the Subject Property and City Respondents' approvals of such development, on the terms and conditions contained herein. 1 • AGREEMENT NOW, THEREFORE, in consideration of the matters recited above, which are incorporated herein as if recited in full; in consideration also of the mutual covenants and representations set forth herein; and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. The GATES shall build the Subject Property so that its construction complies with the Approved Plans and Delta P Plans, as modified by the Settlement Plans which are revised sheets A -2, A -3, A -4, S -2 and S -3 dated January 25, 2005 showing Delta 8 revisions. The Settlement Plans are attached to this agreement as Exhibit 1 and incorporated herein by this reference. The Settlement Plans and the Delta P Plans shall be collectively referred to as the Revised Approved Plans. All parties hereby approve of the construction of the Subject Property in conformance with the Revised Approved Plans. The parties hereto acknowledge and agree that the Subject Property shall be built so that it complies with the Revised Approved Plans, subject to minor deviations for reasonable construction tolerances that are within commonly- accepted industry standards and that are approved by City building officials; provided, however, that (1) the outdoor fireplace on the rear deck shall be constructed in accordance with the detail shown on sheet A -3 of the Settlement Plans and the height of the fireplace shall not exceed 7' 6 (seven feet six inches) from the deck foundation floor to the top of the chimney terminator; and (2) in no event shall any portion of the structure of the Subject Property, including, but not limited to the Inspect ion Improvements (as defined below), exceed the elevations shown on the Revised Approved Plans, including the Settlement Plans attached hereto as Exhibit 1 , as certified in the elevation certifications attached hereto collectively as Exhibit 2 , to the extent the elevations shown on the Revised Approved Plans are now certified in such elevation certifications. To the extent that the elevations shown on the Revised Approved Plans are not certified in the elevation certifications attached hereto as Exhibit 2 , such elevations shall be certified to the City upon completion of construction in accordance with the Revised Approved Plans. The City shall provide the ROTHMANS with copies of any and all certifications for the construction of the Subject Property that include the Inspection Improvements within two (2) business days of the City's receipt of such certifications. In addition, the GATES agree that they shall not, under any circumstances, install or construct any awnings in or around the deck of the Subject Property that is nearest to J Street. The GATES shall provide written notice ( the Inspection Notice ) to the ROTHMANS when the GATES have completed the framing which is necessary to implement the relocation and reconfiguration of the chimney closest to J Street and the changes to the exterior portions of the third story that are forward of any and all portions of that chimney, including the deck that is closest to J Street ( the Inspection Improvements ) . The ROTHMANS and /or their representatives shall have three (3) business days after receipt of the Inspection Notice from the GATES to inspect the Inspection Improvements. In the event the ROTHMANS believe that the construction of any portion of the Inspection Improvements does not comply with the Revised Approved Plans, they shall provide written notice ( the Objection 2 0 0 Notice ) to the GATES and the City within three (3) business days after their inspection of the Inspection Improvements. The Objection Notice shall specify which portions of Inspection Improvements the ROTHMANS believe do not comply with the Revised Approved Plans. Within three (3) business days after the date that both GATES and the City receive the Objection Notice, the City shall provide written notice (the City Notice ) to the ROTHMANS and the GATES stating whether or not the City believes that the Inspection Improvements comply with the Revised Approved Plans. In the event the City finds that at that stage of the construction the Revised Approved Plans have been complied with, the ROTHMANS shall have five (5) business days from the date of their receipt of the City Notice within which to seek judicial review and enforcement, if necessary, of the GATES' compliance with the Revised Approved Plans as they pertain to the Inspection Improvements. If the ROTHMANS do not give an Objection Notice as provided above, and if the City finds that the construction at that stage complies with the Revised Approved Plans subject to minor deviations for reasonable construction tolerances as set forth above, the City shall proceed to issue its approval thereof. If at any time the City finds upon conducting an inspection of the Subject Property that the construction does not comply with the Revised Approved Plans subject to minor deviations for reasonable construction tolerances as set forth above, the City shall direct the GATES to make the necessary corrections to comply with the Revised Approved Plans, and after the GATES have completed their corrections in response to the City's directive, the GATES shall provide notice thereof to the ROTHMANS if said corrections are to any portion of the Inspection Improvements and the ROTHMANS shall be entitled to reinspect the Inspection Improvements, subject to same terms and conditions that are set forth above. The ROTHMANS shall be entitled to reinspect only the Inspection Improvements and only if changes have been made thereto following their inspection of the Inspection Improvements. a) All notices to CITY pursuant to this section shall be sent by facsimile and U.S. Mail to Robin Clauson, City Attorney, City of Newport P.O. Box 1768, Newport Beach, 92658, facsimile no.: (949) 644 -3139; b) All notices to the ROTHMANS pursuant to this section shall be sent by facsimile and U.S. Mail to Don Rothman, 701 Ocean Avenue, No. 201, Santa Monica, CA 90402, facsimile no. (310) 899 -1073, with copies to George B. Piggott, 2 Park Plaza, Suite #300, Irvine, California 92614; facsimile no.: (949) 261 -1085; Brion Jeannette, Brion Jeannette Architecture, 470 Old Newport Blvd., Newport Beach, CA 92663, facsimile no.: (949) 645 -5983; and Matthew Rothman, P.O. Box 473, Hermosa Beach, CA 90254, facsimile no.: (310) 496 -0230. All certifications to be provided to the ROTHMANS pursuant to this section shall be either sent by facsimile or hand - delivered to the offices of George B. Piggott and Brion Jeannette at the facsimile numbers and/or addresses stated above. 3 0 0 c) All notices to the GATES pursuant to this section shall be sent by facsimile and U.S. Mail to 8 Alondra, Irvine, CA .92650; facsimile no.: (714) 544 -2792, with a copy to David R. Baade, 2301 Dupont Drive, Suite #480, Irvine, California 92612; facsimile no.: (949) 553 - 3941. 2. Upon execution of this Agreement, the Appeal filed by the ROTHMANS on or about July 21, 2004 shall be stayed pending the City's final approval of the construction of the Subject Property, and the ROTHMANS shall file with the court a Notice of Settlement of the Writ Proceeding requesting that the court retain.jurisdiction to enforce this Agreement pursuant to Code of Civil Procedure Section 664.6 and that a hearing be set no earlier than May 31,. 2005 for an order to show cause why the Writ Proceeding should not be dismissed. Upon final approval of the construction of the Subject Property, the ROTHMANS shall file a request for dismissal with prejudice of the Writ Proceeding. In the event the dismissal is not filed on or before the date of the hearing on the order to show cause, the ROTHMANS shall appear at the hearing on the order to show cause to request that the court continue to retain jurisdiction for enforcement of this Agreement to a further date at which time the Writ Proceeding shall be dismissed with prejudice. The City shall reimburse the ROTHMANS for the appeal fees less any administrative costs incurred. This Agreement shall be enforceable under Code of Civil Procedure Section 664.6. 3. Except for all rights and claims arising out of this Agreement,. the ROTHMANS, for themselves and their heirs and legal representatives (hereinafter "the ROTHMAN Releasors "), hereby release and discharge the GATES and the City Respondents, and each and all of their respective employees, agents, representatives and attorneys, with the exception of the GATES' architect, Andrew Goetz (hereinafter "the ROTHMAN Releasees "), of and from any and all actions and causes of action, in law or in equity, suits, liabilities, claims, demands, damages, losses, interest, costs, and expenses, of any kind or nature, known or unknown, fixed or contingent, direct or derivative, suspected or unsuspected, which the ROTHMAN Releasors now have or may have against the ROTHMAN Releasees arising out of any act, event or occurrence that occurred at any time prior to the ROTHMANS' execution of this Agreement, including but not limited to all claims and causes of action arising out of the design and construction of the Subject Property and the approvals for same by the City, provided, however, that the construction of the Subject Property complies in all respects with the Revised Approved Plans. 4. Except for all rights and claims arising out of this Agreement, the GATES, for themselves and their respective heirs and legal representatives (hereinafter "the GATES Releasors "), hereby release and discharge the ROTHMANS, and each and all of their respective employees, agents, representatives and attorneys (hereinafter "the GATES Releasees "), of and from any and all actions and causes of action, in law or in equity, suits, liabilities, claims, demands, damages, losses, interest, costs, and expenses, of any kind or nature, known or unknown, fixed or contingent, direct or derivative, suspected or unsuspected, which the GATES Releasors now have or may have against the GATES Releasees arising out of any act, event or occurrence that occurred at any time prior to the GATES' execution of 4 this Agreement, including but not limited to all claims and causes of action arising out of the filing of the Writ Proceeding and the GATES Releasees' opposition to the design and Construction of the Subject Property and to the approvals of same by the City. 5. Except for all rights and claims arising out of this Agreement, the City Respondents, for themselves and their respective heirs and legal representatives (hereinafter "the City Releasors "), hereby release and discharge the ROTHMANS, the GATES and each and all of their respective employees, agents, representatives and attorneys (hereinafter "the City Releasees" ROTHMANS and GATES), of and from any and all actions and causes of action, in law or in equity, suits, liabilities, claims, demands, damages, losses, interest, costs, and expenses, of any kind or nature, known or unknown, fixed or contingent, direct or derivative, suspected or unsuspected, which the City Releasors now have or may have against the City Releasees arising out of any act, event or occurrence that occurred at any time prior to the City's execution of this Agreement, including but not limited to all claims and causes of action arising out of the filing of the Writ Proceeding and the City Releasees ROTHMANS' opposition to the design and construction of the Subject Property and to the approvals of same by the City. 6. Except for all rights and claims arising out of this Agreement, the GATES, for themselves and respective heirs and legal representatives and attorneys, and each and all of their respective employees, agents, representatives and attorneys, hereby release and discharge the City Respondents, and each and all of their respective employees, agents, representatives and attorneys, of and from any and all actions and causes of action, in law or in equity, suits, liabilities, claims, demands, damages, losses, interest, costs, and expenses, of any kind or nature, known or unknown, fixed or contingent, direct or derivative, suspected or unsuspected, which the GATES now have or may have against the City Respondents arising out of the filing of the Writ Proceeding, the execution of this Agreement and the City Respondents approval of the SCV and the Settlement Plans. 7. None of the releases specified in this agreement shall be effective unless and until the City issues its final approval of the construction on the Subject Property. 8. With respect to the matters released above, the parties hereto, and each of them, hereby expressly waive all rights under Section 1542 of the California Civil Code, and any law or principle of similar effect of any state or territory of the United States. Section 1542 of the California Civil Code reads as follows: Section 1542. 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. The parties hereto hereby acknowledge that they are aware that they may hereafter discover facts in addition to or different from those which they now know or believe to exist with 5 • 1 0 respect to the matters released by this Agreement. The parties hereto also acknowledge that such different or additional facts, if they exist, may have given or may hereafter give rise to causes of action, claims, liabilities, demands, debts, controversies, damages, costs, and expenses which are presently unknown, unanticipated, and unsuspected. Each party, further agrees, represents, and warrants that the releases contained herein have been negotiated and agreed upon in light of that realization, and that it is their intention through this Agreement, and with the advice of counsel, fully, finally, and forever to settle and release to the fullest extent permitted by law any and all actions and causes of action, in law or in equity, suits, liabilities, claims, demands, damages, losses, interest, costs, and expenses, of any kind or nature, known or unknown, fixed or contingent, direct or derivative, suspected or unsuspected, as described above. In furtherance of such intention, the parties hereto acknowledge that the releases contained in this Agreement will remain in effect and shall be fully binding notwithstanding the discovery or existence of any such additional or different facts. Each of the parties has obtained the advice of legal counsel of his, her or its own choosing prior to signing this Agreement, and each of the parties hereto executes this Agreement voluntarily, with full knowledge of its significance, and with the express intention of waiving the provisions of Section 1542 of the California Civil Code. 9. It is understood and agreed that this Agreement is made to compromise contested claims between the parties hereto and is also entered into for the purpose of avoiding the expense and inconvenience of litigation, and that nothing contained herein shall be interpreted or construed as an admission or acknowledgment by any of the parties hereto of any wrongdoing, liability, debt, or fault, of any nature whatsoever, and that any and all such liabilities, faults, debts, or wrongdoings are hereby expressly denied. 10. Each party hereto shall each bear their own costs and expenses, including attorneys' fees incurred or to be incurred, in connection with all matters concerning the subject matter of this Agreement. Any right to recover attorneys' fees which would otherwise exist in favor of any party hereto is hereby waived. 11. This Agreement is intended by the parties hereto as the final expression of their agreement concerning the matters set forth herein and is a complete and exclusive statement of the terms and provisions thereof. Nothing other than this Agreement shall be relevant or admissible to supplement or vary any of the terms or provisions set forth herein. No party hereto has made any statement or representation to the other party regarding any fact or facts relied upon by any other party in entering into this Agreement, and each party specifically does not rely upon any statement, representation, or promise of any other party in executing this Agreement, or in making the settlement provided for herein. This Agreement constitutes a single, integrated written contract expressing the entire agreement of the parties hereto relative to the subject matter hereof. No covenants; agreements, representations, or warranties of any, kind whatsoever have been made by any party hereto, except as specifically set forth in this Agreement. All prior agreements, discussions and negotiations have been and are merged and integrated into, and are superseded by, this Agreement. 6 12. This Agreement may be executed in counterparts, and each counterpart, when executed, shall have the efficacy of a signed original. In addition, photographic or facsimile copies of such signed counterparts may be used in lieu of the originals for any purpose, in the absence of any genuine issue as to their authenticity. Notwithstanding the foregoing, it is agreed and understood that there is only one Agreement, and the signing of this document in counterparts does not alter, nor shall be construed to alter, that fact. 13. The parties to this Agreement, and each of them, represent and warrant that none of the claims purported to be released herein has previously been assigned or otherwise transferred to any other person or entity, including by way of subrogation or operation of law. In the event that any claim, demand, or suit is made or instituted against any party hereto because of any such purported assignment, subrogation, operation of law, or transfer, the parry or parties so assigning or transferring such claims, as the case may be, agree(s) to (1) defend, indemnify and hold harmless each of the other parties to this Agreement against any such assigned, subrogated, or transferred claim, demand or suit; and (2) satisfy any such assigned, subrogated, or transferred claim, demand, or suit. 14. This Agreement shall inure to the benefit of and bind the successors, assigns, heirs, executors, and administrators, of the parties hereto. 15. Each party has had a full and fair opportunity to receive independent legal advice from attorneys of his, her, or its choice with respect to the advisability of making the settlement and release provided herein, and with respect to the advisability of executing this Agreement. Prior to the execution of this Agreement by each party, that party reviewed same at length, made such investigation of the facts pertaining to this settlement as he, she, or it deemed necessary, and received the advice of counsel in reviewing and explaining the terms and consequences of this Agreement. This Agreement has been carefully read by, the contents hereof are known and understood by, and it is signed freely by each person executing same. [This space intentionally left blank.) 7 16. Except as otherwise provided herein, this Agreement shall become effective when it has been signed by each of the parties hereto and it has been approved by the City Council of the City of Newport Beach. Dated: Dated: Dated: Dated: Dated: E DON ROTHNIAN JUDITH I CHAAES KRISTINE GATES Citv of Newnort Beach LAVONNE HARKLESS City Clerk APPROVED AS TO FORM: City Attorney 02/24/2005 19:14 FAX 91089910 ." Q002 16. Except as otherwise provided herein, this Agreement shall. become effective when it has been signed by each of the patties hereto and it has been approved by the City Council of the City of Newport Beach. Dated: 4 L 7' Dated: %�^ y r Dated: Dated: Dated: 8 r DON ROTHMAN .: 1 . %--'JUDITH ROTHMAN, CHARLES GATES EMSITSE GATES City of Newport Beach STEVE BROMBERG Mayor Attest: LAVONNE HARKT.E City CIerk _ APPROVED AS TO FORM: City Attorney u� /ty /Lnb� EG:da 5455533547 / Dated: Dated: !'�-3'06 Dated: February 23, 2005 DAVID R BAADE Ak a PAGE 10 KR�STINE GATES City of Newport Beach STEVE BROMBERG Mayor Attest: LAVONNE HARKLESS City Clerk APPROVED AS TO FORM: City Attomey xvi asscs'va� n "GlN I OOY£'hMYIL't MZ6 YJ 14,1NM 1NOdN3N w.. 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Wq :WJ 3IIDH WOLSMT M3N Pl MOM i Z _o F U W � e C i a z 0 F U N '' 'Feb 09 05 11:34a GATt�OrNSTRUCTIOPi IMC. - 714 -4 -2792 CITY OF NEWPORT BEACH BUILDING DEPARTMENT 3300 NEWPORT BLVD, P.O.BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 644 -3275 BUILDING HEIGHT CERTIFICATION p. 2 Project Street Address: As the surveyor of record for the above project, I hereby certify that I have reviewed the City of Newport Beach .approved plan and original topography survey and based the elevations listed below on those plans. Elevations shall include an allowance for roofing material thickness if not yet installed. Provide each ridge and midspan elevation indicated on the approved plan. Use the format below on the back of this form if additional space is necessary or further explanation is needed. Provide original copy to building inspector before roof framing inspection. Benchmark is based on: ® NAVD88 NGVD29 73 Assumed Allowable overall elevation above the benchmark of- 8 fZ is. 37 9Z (25Z; �) Actual overall height above the benchmark as measured, is: X99 Allcwable midspan elevation above the benchmark of: � 6? /is: 3 Actual midspan elevation above the benchmark is: Sew 7.1�C.0 TdT Ge�iTr'a�IcL/ t�Yllt� I carify that the above height measurements are correct and the above project: (S in compliance with the City - approved plans. IS NOT in compfiance with the City - approved plans (Provide explanation). Please describe any deviation from the City - approved plan on the back of this form. o ov" 'V, � �ie5 v . f sGr/7JE�/ /2 -2G Imo¢ CL I G ,1 � E1P 23flUr z 9TFOFCAU`s��� Date Surveyor or Civil Engineer's signature and seal B� (Wet stamp and signature are required) . Corns \Suilc c:.av hci > > > x .I ----------- -- ILL `I .._gl_g ------- --- Cl a C 7_7! I.n li 211 Cl Project Street ,alddres s: 0 CITY OF NEWPORT BEACH BUILE)MG.,DEARART MENT. 300 NEWPORT BLVD. P.O.30-K 17 68, NEWPORT BF-A CH.. CA 92638-8915 (949) 644-33275 BUILDING HEIGHT CERTIFICATION �e,-, lz,5r A A m7y that 1 have cc-viewed -he Citj of Newocrt ,s the s unievc r of record 10 r t�, e above o ro iect. I h. er-= c v ce 1 Ceach. approved Plan and oncimai ;Lccccraohv survev and based the -elevations listed below on those plans. Elevations shall include an allowance for roofing material thickness if not yet installed. Provide each ricce and. midspan elevation indicated on the approved plan, Use the format below on the back of this forrn if additional _Mace is necessary or further eXpl2n2tion is needed. Provide cricinal ccov to buildina Inspector before jOOT Traming mzpec-1iQn. K Fsu—ec Z�� -nz 3ZI *2-. -AZ4- 32, At' f )e le 1 4 :r 7LZ1 32 IV , .4 J j= 7�= =-cv= —:g", measurements i- ec -, IJ fn corriciiance 'dlith :iiE CLy-approve,-� .Clans, L7 iS NOT in ccrn.ciian.c-e with tie C.:tNI,-alrproved plans please.teccni:-= any �-=-viaticr, kicm the Citkj-ao.brcved plan on ',e --ack Gf uns Tlcrrc. 2 4 OF C A0 Surveyor or Civil Engiheer;s.signature ana seal _ate 2 (vvet Sm ta . p. and signature 2rE eoUired) 3% OYER Pee R _RAJL AL L 4/A-3 IT Olk HANDRAIL 9 3L' wN. 38' MA:,. AEI. TREAD NOSING 1A AN PM, 3 r .6:12 vEry HSG_ . Tc, -Z VOE 7�iM 24' 4E, tz,.NG 9�AD� - 22 A- slo'-s DOWN, V • A-' o RAIL 35.5 :L45 BOT. R2 L A /Vol NRE -'7 4L No-