HomeMy WebLinkAboutC-4601 - Settlement Agreement & Release of All ClaimsSETTLEMENT AGREEMENT & RELEASE OF ALL CLAIMS
G This Settlement Agreement and Release of All Claims ( "Agreement ") is made and
entered into by and between the CITY OF NEWPORT BEACH ( "City" and "Plaintiff) and
TERESA Y. LU ( "Defendant Lu ") to terminate fully and finally all disputes arising out of or
related to, the Action defined hereinafter. Collectively, the City and Defendant Lu may be
referred to as the "Parties" or the "Party ".
RECITALS
WHEREAS, Defendant Lu is the owner and person responsible for the property
commonly known as 20271 Orchid Street which is located in the City of Newport Beach,
California, and referred to as "the Subject Property."
WHEREAS, Plaintiff has filed a civil complaint against Defendant Lu and Derek George
Leason alleging violations of various provisions of the Newport Beach Municipal Code (the
"Code") and California Business & Professions Code ( "B &P ") § 17200, et seq., as set forth in
the complaint in the Superior Court of the State of California, County of Orange, Case No. 30-
2008- 00102565 filed on or about February 11, 2008 (the "Action ") for failing to maintain the
Subject Property as a "single- family detached dwelling" (or other lawfully permitted use) under
the Newport Beach Municipal Code, hereinafter the "Code" and /or operating the Subject
Property as a Boarding or Rooming House (the "Incident ").
WHEREAS, the Parties hereto wish to resolve the disputes constituting the Action to
avoid the costs of trial and/or potential appeals therefrom and to resolve fully and, finally all
disputes which may exist by and between the Parties concerning the Incident as set forth in the
Action. As a condition of this Agreement, Defendant Lu shall bring the Subject Property into
compliance with City laws as set forth with the "Compliance Plan" (attached hereto as Exhibit
"A ") to the extent permissible by State and federal law. Any reference to this Agreement
includes the Compliance Plan whether or not the Compliance Plan is specifically stated.
AGREEMENT
NOW, THEREFORE, for full and valuable consideration, and based upon the foregoing
recitals and the terms, conditions, covenants, and agreements contained herein, the Parties hereto
agree as follows:
1. Incorporation by Reference. The Recitals set forth above are integral to this Agreement
and are incorporated herein by this reference.
2. Judgment Pursuant To Code of Civil Procedure § 664.6. The City shall reserve the
right to move, upon noticed motion, the Court presiding over the Action to enter judgment
pursuant to the terms of this Agreement. The Parties expressly stipulate to the same Court
presiding over the Action to retain jurisdiction over the Parties in the Action to enforce the
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settlement as expressed in this Agreement and the Compliance Plan attached hereto as Exhibit
"A" until the later date of full performance of the terms of this Agreement is accomplished or
December 31, 2013.
3. Compliance Plan and "Permissible Land Uses ". Defendant Lu shall take all steps
necessary to ensure the Code violations identified in Exhibit "A" are corrected or abated in
accordance with the schedule included in Exhibit "A ".
Defendant Lu shall further take all actions necessary to ensure no new violations of the
Code occur for the Subject Property, namely that the Subject Property is maintained as a "single -
family detached dwelling" or other lawful use as set forth under Code § 20.44.040 and also as
may be permitted pursuant to State and federal law, collectively referred to herein as
"Permissible Land Uses ". Code § 20.44.040(B) specifically allows real property located within
the Residential Single - Family District within which the Subject Property is located to be used for
the following purposes: Single - family detached dwelling; Residential care facilities, small
licensed (6 or fewer occupants); Parks, playgrounds, and athletic fields (noncommercial); Riding
and hiking trails; and Small family child care homes.
Defendant Lu is not responsible for any actions committed by third parties that do not
relate to the Permissible Land Uses. To ensure Defendant Lu complies with this Agreement,
Defendant Lu stipulates that the City, its employees and agents, may enter the Subject Property
to inspect the exterior and/or interior of the Subject Property, or any part thereof, including any
garage, room, or other structure at the Subject Property, with thirty -six (36) hours advance notice
(excluding Sundays and federal holidays) from the City.
4. New Violations And Notice Requirements
A. The Parties agree that any failure to abide by the Compliance Plan attached hereto
as Exhibit "A" shall constitute a material breach of this Agreement.
B. As to those violations of the Code underlying the Incident as articulated above
and defined above in Section 3 as Permissible Land Uses, the noticing provisions
provided in this Section do not apply nor does any other notice requirement apply by
agreement between the Parties to said violations that occur subsequent to the date in
which Defendant Lu executes this Agreement, allowing the City to move for relief as set
forth under Section 2 of this Agreement and subject to Section 9 of this Agreement. As
to potential Code violations other than those pertaining to the Permissible Land Uses, the
Parties agree that the City may exercise its rights pursuant to Section 2 of this Agreement
after twenty (20) days written notice to Defendant Lu so as to allow Defendant Lu a fair
opportunity to respond to alleged new violation(s) and if Defendant Lu fails to take all
steps necessary to ensure the Code violations are corrected or abated within twenty (20)
days after the City replies to her response.
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C. Defendant Lu agrees that if she leases the Subject Property to any other person,
such lease, whether verbal or written, shall include a provision that lessee(s) shall obey
all provisions of the Code and that violations of the Code are cause for termination of the
lease, whether verbal or written.
5. Future Action By The City And Defenses. The Parties acknowledge by this Section that
the City is not waiving or giving up its Constitutional police powers and that Defendant Lu is not
waiving any defenses to claims, allegations or conditions not described in or addressed by this
Agreement or the Action.
6. Term. This Agreement shall be in effect until the later date of full performance of the
terms of this Agreement and the Compliance Plan attached hereto as Exhibit "A" is
accomplished or December 31, 2013.
7. Change of Ownership. During the term of this Agreement as set forth in Section 6,
Defendant Lu agrees to give the City written notice of any conveyance of the Subject Property
by way of providing via certified or overnight mail either a recorded copy of the deed conveying
the Subject Property or a closing statement from a qualified escrow company reflecting a change
of ownership by identifying the parties to that transaction within fourteen (14) days of said
transaction. The City and Defendant Lu agree that the terms of this Agreement shall apply to
Defendant Lu as long as she or any person or entity controlled by her has any interest in the
Subject Property and that this Agreement shall apply to any person or entity who obtains any
interest in the Subject Property who is not a Bona Fide Purchaser for value. However, the Parties
agree that this Agreement shall not apply to a Bona Fide Purchaser for value, which for purposes
of this Section, results from a transaction in the open market arrived at by normal negotiations
with a purchaser for fair market value who is unrelated to Defendant Lu in any way, including
any corporation, partnership, or other entity in which Defendant Lu or her family has any
interest. Any conveyance of the Subject Property to a Bona Fide Purchaser shall not be
restricted, except to the extent that Defendant Lu will provide notice to the City of the
conveyance.
S. Permits and Fees. Nothing in this Agreement shall be construed as relieving Defendant
Lu or any other person from the duty to obtain any permit or approval required under City or
State law, or to pay any fee, assessment, charge or tax. The City shall provide Defendant Lu with
all services provided by the City to other similarly situated residents of the City.
9. Enforcement Costs. Should any legal action be required to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in
addition to any other relief to which that party may be entitled.
10. Injunctive Relief for Breach. The Parties acknowledge and agree that any material
violation of this Agreement is likely to result in immediate and irreparable harm for which
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monetary damages may be inadequate. Accordingly, the Parties consent to injunctive and other
appropriate equitable relief upon the institution of proceedings by any of the Parties to protect
the rights of the Parties under this Agreement. Such relief shall be in addition to any other relief
to which the Parties may be entitled at law or in equity.
11. Release. For valuable consideration, the Parties do hereby release and forever discharge
each others' respective "Releasees" hereunder, consisting of the Parties, the City's elected and
appointed public officials, officers, employees and agents, as well as each of the parties'
associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees,
representatives, consultants, and all persons acting by, through, under or in concert with them, or
any of them, of and from any and all manner of action or actions, cause or causes of action, in
law or in equity, claims arising from alleged property rights, due process rights, public policy
violations, discrimination, harassment, civil rights violations personal injury, or emotion distress,
suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages to
persons or property, losses, costs, penalties, expenses, obligations, or liabilities, of any nature
whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims or Liabilities "),
which any party now has or may hereafter have against the Releasees, or any of them, arising out
of, based upon, or relating to the Incident, Action, Misdemeanor Actions and any other instances,
matters, causes, or things whatsoever that were, have been, or could have been alleged in the
respective pleadings filed in said Action and Misdemeanor Actions.
12. Discovery of Different or Additional Facts. The Parties acknowledge that they may
hereafter discover facts different from or in addition to those that they now know or believe to be
true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of
any nature whatsoever that are the subject of this Agreement, and expressly agree to assume the
risk of the possible discovery of additional or different facts, damages and/or claims, and the
Parties agree that this Agreement shall be and remain effective in all respects regardless of such
additional or different facts, damages and/or claims.
13. Waiver of Civil Code Section 1542. Further, Defendant Lu expressly agrees to waive
and relinquish all rights and benefits she may have under Section 1542 of the Civil Code of the
State of California. That section reads as follows:
§1542. [General release; extent] 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.
Defendant Lu hereby expressly waives and relinquishes any right or benefit which she has, or
might have, under Section 1542 of the Civil Code of the State of California and all other similar
provisions of law of other jurisdictions to the fullest extent allowed by law. In connection with
such compromise, waiver and relinquishment, Defendant Lu acknowledges that she is aware that
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she may hereafter discover facts in addition to or different from those which she now knows or
believes to be true with respect to the subject matter of this instrument, but that, except as is
otherwise provided herein, it is Defendant Lu's intention hereby to fully, finally and forever
settle and release all matters, disputes and differences, known or unknown, suspected or
unsuspected, which do now exist, may exist, or heretofore have existed, and that in furtherance
of such intention, the release actually given herein shall be and remain in effect as a full and
complete general release, notwithstanding the discovery or existence of any such additional or
different facts.
14. Other Pending Actions. Each Party represents that it has not filed any appeal(s),
complaint(s), cross- complaint(s) and /or charge(s) (other than the Action referenced above)
against the other, arising out of or relating to the Action or Incident with any local, state or
federal agency or court; and that if any agency or court assumes jurisdiction of any appeal,
complaint or charge against any party or its predecessors, successors, heirs, assigns, employees,
shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated
corporations or organizations, whether previously or hereafter affiliated in any manner, on behalf
of Defendant Lu or any other party, whenever filed, that party will request such agency or court
to withdraw and dismiss the matter forthwith.
15. Non Admission of Liability. The Parties acknowledge and agree that this Agreement is a
settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of this
Agreement shall be construed in any manner as an admission of any liability by any party hereto,
or any of the Releasees.
16. No Assignment of Claims. Defendant Lu warrants that she has made no assignment, and
will make no assignment, of any claim, cause of action, right of action or any right of any kind
whatsoever, embodied in any of the claims or allegations referred to herein and that no other
person or entity of any kind, other than the residents on Orchid Street, had or has any interest in
any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts,
damages, attorneys' fees, costs, expenses, losses or claims referred to herein.
17. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall
be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal
representatives, successors and assigns.
18. Knowing and Voluntary. This Agreement is an important legal document and in all
respects has been voluntarily and knowingly executed by the Parties hereto. The Parties
specifically represent that prior to signing this Agreement they have been provided a reasonable
period of time within which to consider whether to accept this Agreement. The Parties further
represent that they have each carefully read and fully understand all of the provisions of this
Agreement, and that they are voluntarily, knowingly, and without coercion entering into this
Agreement based upon their own judgment, investigation and advice from legal counsel. The
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Parties further specifically represent that prior to signing this Agreement they have conferred
with their counsel to the extent desired concerning the legal effect of this Agreement.
19. Assistance of Counsel. The Parties each specifically represent that they have consulted
to their satisfaction with and received independent advice from their respective counsel prior to
executing this Agreement concerning the terms and conditions of this Agreement.
20. Attorneys' Fees and Costs. By this Agreement, the Parties will forego any claim to
recovery of attorneys' fees and costs, however, the City waiving its right to recover attorneys'
fees and costs is predicated upon the Defendant's compliance with this Agreement in all
respects. In the event the City becomes entitled to recover attorneys' fees and costs for a breach
of this Agreement, the City shall recover the fees and costs incurred in connection with bringing
a new action as well as those fees and costs related to Section 10 identified above.
21. Singular and Plural. Whenever required by the context, as used in this Agreement the
singular shall include the plural, and the masculine gender shall include the feminine and the
neuter, and the feminine gender shall include the masculine and the neuter.
22. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this
Agreement be declared void or unenforceable, such portion shall be considered independent and
severable from the remainder, the validity of which shall remain unaffected.
23. Headings. Headings at the beginning of each numbered section of this Agreement are
solely for the convenience of the Parties and are not a substantive part of this Agreement.
24. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them,
by and through their respective legal counsel, and any uncertainty or ambiguity existing herein
shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to
the application of the rules on interpretation of contracts.
25. Waiver. Failure to insist on compliance with any term, covenant or condition contained
in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any
waiver or relinquishment of any right or power contained in this Agreement at any one time or
more times be deemed a waiver or relinquishment of any right or power at any other time or
times.
26. Governing Law. This Agreement is made and entered into in the State of California,
and shall in all respects be interpreted, enforced and governed under the laws of said State
without giving effect to conflicts of laws principles. Any action at law or in equity arising under
this Agreement or brought by any Party for the purpose of enforcing, construing, or determining
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of
the County of Orange, State of California, or the United States District Court for the Central
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District of California. The Parties waive all provisions of law providing for the removal or
change of venue to any other court.
27. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
who have executed it and supersedes any and all other agreements, understandings, negotiations,
or discussions, either oral or in writing, express or implied between the Parties to this
Agreement. The Parties to this Agreement each acknowledge that no representations,
inducements, promises, agreements, or warranties, oral or otherwise, have been made by them,
or anyone acting on their behalf, which are not embodied in this Agreement, that they have not
executed this Agreement in reliance on any such representation, inducement, promise, agreement
or warranty, and that no representation, inducement, promise, agreement or warranty not
contained in this Agreement, including, but not limited to, any purported supplements,
modifications, waivers, or terminations of this Agreement shall be valid or binding, unless
executed in writing by all of the Parties to this Agreement.
28. Modifications. Any alteration, change, or modification of or to this Agreement shall be
made by written instrument executed by each party hereto in order to become effective.
29. Authority To Sign. The persons executing this Agreement on behalf of the Parties
hereto represent and warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party and to bind that party,
including its members, agents and assigns, (iii) by so executing this Agreement, such party is
formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement
does not violate any provision of any other agreement to which said party is bound.
30. Responsible Party. Defendant Lu waives her rights to contest this Agreement at a later
date with any assertions that she is not the party responsible for the Subject Property, or did not
cause the violations described in the operative complaint in the Action.
31. Notices. Any notice, demand, request, document, consent, approval, or communication
either party desires or is required to give to the other party or any other person regarding this
Agreement or the Compliance Plan and other than normal requests for information to and from
the City regarding the Subject Property, shall be in writing and either served personally or sent
by prepaid, first -class mail to:
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To Defendant Lu:
Teresa Y. Lu
20342 Cypress Street
Newport Beach, California 92660
With a copy to:
Dominique N. Thieu, Esq.
THIEU VIRTUAL LAW GROUP
17220 Newhope Street, Suite 218, Fountain Valley, California 92708
To The City:
David R. Hunt, City Attorney 3300 Newport Boulevard
Newport Beach, California 92663
With a copy to:
Tiffany J. Israel, Esq.
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 400 Irvine, California 92612
or to such other address as the Parties may, from time to time, designate in writing and deliver in
the manner set forth above. Notices shall become effective upon the earliest of the following: (1)
actual receipt by one of the parties; or (2) actual delivery by private courier or delivery service to
the designated address of one of the parties.
32. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be considered an original but all of which shall constitute one agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement, consisting of a total
of 13 pages (including Exhibit "A "), on the dates set forth below.
"PLAINTIFF"
Dated: l L 2010
APPROVED AS TO FORM:
Dated fay' ^� % ~� "r ` 12010
"DEFENDANT LU"
Dated: , 2010
APPROVED AS TO FORM:
Dated: 2010
CITY OF NEWPO BEACI4
By:
Its:
ATTEST:
,pity Clerk
ALESHIRE & WYNDER, LLP G i
By:
TIFFANY J. ISRAEL, ESQ. Attorneys for
Plaintiff CITY OF NEWPORT BEACH
TERESA Y.
By: Teresa Y. Lu
THIEU6IRT AL LAW GROUP
DOMINIQUE N. THIEU, ESQ. Attorneys
for Defendant TERESA Y. LU
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EXHIBIT "A ": COMPLIANCE PLAN
A. Initial Inspection of the Subject Property.
1. On or before June 28, 2010, Defendant Lu shall allow the City full access to all
rooms, structures, garage space, and other areas of the interior and /or exterior of the Subject
Property for the purpose of inspection to ensure compliance with the terms of this Agreement as
outlined in Section A of this Compliance Plan.
2. All garage parking spaces, carports or other vehicle parking spaces at the Subject
Property must be used or usable for parking vehicles as required by Newport Beach Municipal
Code § 20.66.020, 20.66.030 and 20.66.040.
3. Defendant Lu agrees that there shall be no more than one lease or rental
agreement, whether verbal or written, for the Subject Property at any time. No persons, except
those that are a party to said lease or rental agreement shall be permitted to reside at the Subject
Property. For purposes of this Agreement and Compliance Plan, "reside" is defined as occupying
all or part of the Subject Property either permanently or with the intent to settle for a period of
time in excess of thirty (30) days by sleeping and keeping personal property, which may include
without limitation clothing and hygiene items, at the Subject Property. Overnight guests are not
prohibited except as provided for by the foregoing definition of "reside."
Defendant Lu shall provide the City Attorney's Office with a copy of a single lease or
rental agreement, if available, for the Subject Property indicating the names and contact
information for all occupants of the Subject Property within ten (10) days of the execution of this
Agreement. If the lease is a verbal lease agreement, Defendant Lu will provide the names and
contact information for current occupants of the Subject Property within ten (10) days. In the
event the written lease is terminated or materially modified, Defendant Lu shall provide an
updated copy of the subject lease or rental agreement, if available, within ten (10) days of such
termination or material modification. In the event the verbal lease is terminated or materially
modified, Defendant Lu shall provide an updated status of the subject lease or rental agreement
within ten (10) days of such termination or material modification. Defendant Lu agrees that
within ten (10) days, upon written request by the City, Defendant Lu will provide City with the
current written or verbal lease or rental agreement for the Subject Property. In the event the
lease or rental agreement is verbal, Defendant Lu shall provide the City Attorney's Office with a
document indicating the names and contact information for all occupants of the Subject Property
in the manner proscribed in this Section. The City shall limit its requests to not more frequently
than every sixty (60) days. The terms of this Agreement and Compliance Plan are not intended to
otherwise affect the rights of any occupant at the Subject Property.
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4. The single lease or rental agreement, whether through verbal or written
agreement, for the Subject Property shall allow for only one monthly rental payment to be made
to the landlord for the entire Subject Property, rather than each occupant separately paying the
landlord or the landlord's agent. There is no restriction as to how the method of payment for the
one monthly payment be made whether it be made by cash, check, cashier's check, etc.
5. The single lease or rental agreement, whether through verbal or written
agreement, for the Subject Property shall require that all occupants at the Subject Property be
jointly and severally liable for the monthly rental payment to be made to the landlord or the
landlord's agent for the entire Subject Property.
6. The single lease or rental agreement, whether through verbal or written
agreement, for the Subject Property shall allow the occupants of the Subject Property an
uncontrolled right of access to the entire premises without any direction or control from the
landlord or landlord's agent.
7. The landlord or landlord's agent shall provide each occupant with a key to the
front door. No interior door shall have a deadbolt, and if one is found to exist, Defendant Lu
agrees to have such deadbolt removed within ten (10) days. Failure to do so for a period greater
than ten (10) days constitutes a material breach of this Agreement. Side doors and the door from
the family room to the garage are exempt from this section to the extent that deadbolts are
permitted per Code.
8. Defendant Lu shall not advertise nor market, whether verbally or written, the
Subject Property as "studios" or being "private." Rather, if Defendant Lu elects to advertise or
market the Subject Property, whether verbally or written, then Defendant Lu must state that a
bedroom in a single - family residence is available.
9. The Subject Property shall be maintained as a "single housekeeping unit," and not
for a purpose other than those Permissible Land Uses as set forth above in Section 3 of the
Agreement. In addition, Defendant Lu shall not select which bedroom a prospective occupant
will occupy at the Subject Property.
10. Except as otherwise provided in this Agreement and the Compliance Plan,
Defendant Lu may use the Subject Property in any manner permitted by City, State and federal
law. However, nothing in this Agreement or Compliance Plan shall be deemed to permit or
authorize any violation of the Code, laws, rules or regulations of the City or the State of
California or otherwise be construed to relieve Defendant Lu or any tenant leasing the Subject
Property of any duty to comply with any applicable provisions of the Code, laws, rules or
regulations of the City or the State of California.
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11. If the Subject Property is sought to be used for a purpose other than the
Permissible Land Uses as set forth above in Section 3 of the Agreement, then Defendant Lu must
comply with applicable City, State and federal laws. All provisions of this Agreement and
Compliance Plan shall exist in full force and effect to the extent allowed by State and federal
law.
B. Continuing Obligations of Defendant Lu.
1. Defendant Lu shall continue to maintain the Subject Property and remain in
compliance with the requirements in Section A of the Compliance Plan for the term of this
Agreement as set forth in Section 6 of this Agreement.
2. To ensure Defendant Lu complies with this Agreement, Defendant Lu stipulates
that the City, its employees and agents, may enter the Subject Property to inspect the exterior
and /or interior of the Subject Property, or any part thereof, including any garage, room, or other
structure at the Subject Property, with thirty -six (36) hours advance notice (excluding Sundays
and federal holidays) from the City.
3. Notwithstanding anything in this Agreement or this Compliance Plan to the
contrary, Defendant Lu may lease the Subject Property to persons for a use other than the
Permissible Land Uses as set forth above in Section 3 of the Agreement if that other such use
subsequently becomes permissible under applicable law and Defendant Lu complies with all
policies and procedures necessary to obtain approval for such use.
4. Defendant Lu represents and warrants that the Subject Property is not being
leased to person(s), nor will the Subject Property be leased to person(s), for a use other than
allowed as a Permissible Land Use as set forth above in Section 3 of the Agreement.
5. Defendant Lu agrees not to operate a business enterprise at the Subject Property
that constitutes a use other than allowed as a Permissible Land Use as set forth above in Section
3 of the Agreement and as may subsequently become permissible under applicable law.
6. Defendant Lu shall comply with all existing, as well as any amendments or
changes to, provisions of the Newport Beach Municipal Code relating to the use, maintenance
and ownership of the Subject Property.
7. The Parties agree that a violation of this Compliance Plan, namely violations of
the Code pertaining to the Permissible Land Use as set forth above in Section 3 of the Agreement
for the Subject Property, constitutes a material breach of this Agreement and the City may
exercise its rights under Section 2 of this Agreement as stated in Section 4 of the Agreement.
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[END OF EXI II13IT "A"]
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ADDENDUM TO SUPPLEMENT AGREEMENT & RELEASE OF ALL CLAIMS
1. THIS ADDENDUM hereby supplements the attached Settlement Agreement & Release
of All Claims relating to real property located at:
20271 Orchid Street, Newport Beach, CA 92660.
2. The parties to the Settlement Agreement & Release of All Claims as supplemented by
this ADDENDUM are:
Defendant Lu:
Teresa Y. Lu
20342 Cypress Street
Newport Beach, California 92660
The City of Newport Beach:
David R. Hunt, City Attorney 3300 Newport Boulevard
Newport Beach, California 92663
3. THIS ADDENDUM includes the following documents:
Exhibit 1: Letter from Dupont Residential Care, Inc. to Irvine Cottage #9
Residents and Families — May 7, 2010
Exhibit 2: Residential Lease / Rental Agreement — Executed May 7, 2010
Exhibit 3: City of Newport Beach Cash Receipt — Dated May 20, 2010
Permit No.: X2010 -1167
Project No.: 0911 -2010
Exhibit 4: State of California Department of Social Services
Facility No. 306003825
Facility Name: Irvine Cottage #9
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Dupont Residential Care, Inc.
P. 0. Box 3168
Dana point, CA 92629
Irvine Cottage # 9 License 306002989
May 7, 2010
Dear Irvine Cottage 99 Residents and Families.
I hope you are doing well and had a lovely Mother's day. We celebrated with fun crafts. a
delightful meal with delicious cup -cakes or cake for dessert. All of our special Moms and
Grandmothers also received a special gift bag.
Our Music Therapist Toni Imus and Activity Director Mark Niera have been concentrating all
week on Mother's day and the many songs that describe our love to our moms.
We are so sorry to report the news that our lease for 1142 Corona Lane in Costa Mesa was not
renewed
Irvine Cottage #9 will be moving approximately 2 miles away to the .following address: 20271
Orchid, Newport Beach CA 92660. The "Back Bay'' Newport area is very close and the cross
streets are Birch and Bristol by the 73 tot road.
However, we are excited that the new location in Newport Beach is so beautiful and offers larger
rooms as well as more bathrooms. We also would like you to know that the new lease will be a 5
year lease and renewable.
We will be moving our license to our new location and it will have the exact same amount of
rooms with 4 private rooms, 3 with private bathrooms, l private without an a tta ched hathroom
and one shared room wither large bathroom. There is also an additional bathroom in the hall.
Fveiything will be moved to the new location. We will cover the cost, time and "entertainment"
for the move. if you wish not to move we understand and we will help you locate another
facility to your liking.
The date of the move will be approximately during the week of June 30`x'. .However, we have
until August I" to move all of our residents and we are going to be flexible with schedules.
We are hoping to have the new facility ready for move in,byJune 30'.
EXHIBIT 1 15
Defendant's Initial
if you would like a tour prior to the move date, please call Aileen at (714) 349 -9388. There will
be no rent increases for at least one year as a thank you and we will waive the normal annual
Januar} increase also in 2011. The same caregivers and activity staff' will remain.
Please feel free to call me at any time with any questions or concerns,
Sincerely,
Jacqueline Dupont
(949) 533 -5938 Cell
(949) 443 -4296 Home
Jacgldupont@aol.com
EXHIBIT 1
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Defendant'. Initial
RESIDENTIAL LEASE jZEMLAL AURFEMENT
PARTIES: LANDLORD: Teresa Y. Lu
TENANT: Dr. Jacqueline Dupont
PROPERTY ADDRESS: 20272 Orchid, Newport Beach, Ca 92660 (the "PREMISES ")
1. RENTAL AMOUNT: Commencing June 1 ", 2010 TENANT agrees to pay LANDLORD with check payrnent
the sum of $4,600 per month in advance on the 1" day ufeoch calendar mouth. Said rental payment shall be
delivered /mailed byTENANTto LANDLORD.
2. TERM: The PREMISES are leased on the following lease term S years; germinating on June 30, 2014, with
the right of either party to terminate the lease upon six months written notice. Rent shall increase by $100
per month on I -� of June of each year of the Lease (e.g. 6 /1/2011- $11,700 cach month; 6/1/2012- $4,800 each
month; 6/1/201344,900 each month; 6/1 /201.4 - $5,000 cach month). Such written notice shall not be
served during the first six months of the term of the Lease.
1 SECURITY DEPOSITS: TENANT shall deposit with landlord the .sum of $4,600 as a security deposit to
secure TENANT'S faithful performance of the terms of this lease. After all the TENANTS have vacated, leaving
the premises vacant, the LANDLORD may use the security deposit for the cleaning of the premises, a'ny
unusual wear and tear to the premises or common areas, and any rent or other amounts owed pursuant to
the lease agreement or pursuant to Civil Code Section 1950.5.
TENANT may not use said deposit for rent owed during the term of the ]ease. Within 21 days of the TENANT
vacating the premises, LANDLORD shall furnish TENANT a written statement indicating any amounts
deducted from the security= deposit and returning the balance to the TENANT. [fTENAN'f fails to furnish a
forwarding address to LANDLORD, then LANDLORD shall send said statement and any security deposit.
refund to the leased premises.
4. INITIAL PAYMENT: TENANT shall pay the first month rent of $4,600 and the security deposit In the
amount of $4,600 fora total of $9,200. Said payment shall be made in the form of cash or cashier's check and
is all due prior to occupancy.
S. OCCUPANTS: Living accommodations and grounds shall be strictly related to the operation and function of
a Residential Care Facility for the Elderly (RCFE). The Facility shall provide living accommodations and
privacy for the residents, staff, and others who may reside in the facility as permissible both by the California
Code of Regulations as it pertains to RCFE's and the local Fire Department.
6. SUBLETTING OR ASSIGNING: TENANT MAY NOT SUBLET OR ASSIGNS this lease without the prior written
consent of the LANDLORD. However, TENANT shall have the authority to allow the occupancy of the
PREMISES by individuals consistent with RCFE.
7. UTILITIES: TENANT'shall pay for all utilities and /or services supplied to the premises with no exceptions.
LANDLORD will allow all utilities to be in TENANT'S name.
8. PARKING. TENANT parking shall be designated as the garage and the drive way. TENANT may only park a
vehicle's that are registered in the TENANT'S name and /or an employee of the TENANT or is parked there in
the regular course of operating an RCFE. TENANT may not assign, sublet, or allow any other person to use
the designated parking area. The designated parking area is exclusively used for the parking of passenger
EXHIBIT 2
17 6 �/�
Defenda tt-sT /Initial
aufonwbiies Ii} the I FN' I :.wd it,r umplovices and anvnnr who r; parlwd thc-I ill I:hr I clular course of
o Pei aLi nf; a RCF I. No oche I Type of yehu Ir• urrLenr noes 6c stared in Chu space' wifhoul prior written consent
of LANDLORD, f 1'NANT nr n' not wash, cpeir, or paint iu thin area o:- am; other common area on t -he
premises. Only ve iucle�. th n n-c oiler rtimraland currcntlq to r u:red In ill( Staten l' &lifurnr- may he parked
in flits urea. Any velueJe Ut u n leai<int lny substance trust not be parked anywhue on t'he pr cmrse,y_
9. CONDITION OF PREMISES: TT NAITI';Icknowiedges that the premises have heen insuected. 'tenant
acknowledges that said premises have bce.n cleaned and all items, fixim c.;; appliances, and appurtenances are
Ill complete working order. TENANT pt accuses to keep the premises, in a neat and sanitary condition and to
immt di uely rcrinrburse landlord kot a uy stuns necessary to r epair any item, fixture or ai:rporeenance that
needed service due to TENANT'S, or "I'C:NANT S Invitee, misuse or negligence. Subjecr. a any items noted o❑
the initial walk turn that wu c priorto TENANT moving in, already broken, damaged, not working or
excessively worn. The initial wall,' burl shall be conducted before said property is delivered to the TENANT.
The initial walk thru worksheet shall he signed and dated by both the TENANTand LANDLORD.
TENANT shall be responsible for the cleaning or repair to any plumbing fixttu-e where a stoppage has
occurred, where toe cause was determined to be caused by the TENANT- IENANT shall also be responsible
Fnn-epair or replacement oftire garbage disposal where the cause has been it result of bones, grease, pits, or
any other item which normally causes blockage of the mechanism.
1.0. ALTERATIONS: TENANT has permission to make State regulated /mandated improvements and changes
to property; TENANT will pay '100% for these changes as needed TENANT shall not change/ install, paint, or-
wallpaper said premises witiout LANDLORD'S prior written consent, TENANT shall not place placards, signs,
or other exhibits in a window or, any other place where they can be viewed by other residents or by the
general public. TENANT may replace locks to comply with the bealth and safety ;:odes for the operation of a
RCFE. TENANTshall provide LANDLORD with a copy of the local Fire Dept's written request foe such
changes.
11.. LATE CHARGE /BAD CHECKS: A late charge of $100 shall be incurred if rent is not paid by tire Stu' day
after the rcpt is due. If rent is not paid when due and landlord issues a'Notice To pay Rent Or Quit', TENANT
must tender cash or cashier's check only. If TENANT tenders a check, which is dishonored by a banking
institution, than TENANT shall only tender cash or cashier's check for all future payments. This shall continue
until such time. as written consent is obtained from LANDLORD. In addition, TENANT shall be liable in the
sum of $10 for each check that is returned &r LANDLORD because the check has been dishonored.
12. NOISE AND DISRUPTIVE ACTIVITIES: TENANTor his /]ter guests and invitees shall not disturb, annoy,
endanger or inconvenience other tenants, neighbors, the LANDLORD or his agents, orworlcmen nor violate
any law, nor commit or permit waste O nuisance in m about the premises.
13. LANDLORD'S RIGHT OF ENTRY: LANDLORD may enter, and inspect the premises during normal
business hours and upon reasonable advance notice of at least 24 hours to TENANT. LANDLORD is perrnitted
to make all alterations, repairs and maintenance that in LANDLORD'S judgment is necessary to perform and
that comply with the health and safety codes in order to operate a RCFE, ht addition LANDLORD has all right
to enter pursuant to Civil Code Section 1954. if the work performed requires that TENANT temporarily
vacate the unit, then TENANT shall vacate for this temporary period upon being served a 7 days notice by
LANDLORD. TENANTagrees that in such event that TENANTwill be solely compensated by corresponding
reduction in rent for those many days that TENANT was temporarily displaced and any reasonable amount
necessary to assist-the residents move and temporary housing. If the work to be performed requires the
cooperation of TENANT to perform certain tasks, then those tasks shall be perf'ormod upon serving 241'iours
written notice by LANDLORD. (EXAMPLE - removing food items fi-om cabinets so that the unit may be
sprayed for pests)
Exaxarr 2 18 yD
,� Defendant's Initial
'14. REPAIRS BY LANDLORD- Whcrc ,I c p'lII is I.hr I "spouslhilih� o(Ilie I,AN01,01lD, "1'f:NAN'I' most non v
.. ANDLORD with a written notj r,( ahul:; wl1til it n. ucorls sc rviciul; nr rclmit ITNAN'1- InWd Inve LANDLORD
l; . U-Souable opport laILV to Scr vice o� I cp,.iir ctiuE itrui.'I'ENAN'f aclmoa�icdges that rent. will not be troithheld
wiles' a e Illeen notice has been set v(d on ;,ANDLOk6 ;;wing LANDLORD a reasonable time to fix said item
within The meaning of civil Code Sectmn 79'12. Under no Cl rcu mseauces 'nay 'CENANI withhold rent unless
said item constitutes substantial breach ofthc warrantee
Section 1174.2, of habitabiluy as stated Ill Code (A Civil Procedure
NOTE (t) PENANT coven c ch repair limited to the hmctions oftile property up to 1' °',000 per incident, zmd
ce ns uuh as appliances, plumbing, electrical heating; if air conditioning is needed, cost will he shared by
50/150- (b) City Plans - lohn Boi's.L' 100 plans Yee for the property to be paid I;ry TENANT,
15. FURNISHINGS; No liquid filled furniture of kind may be kept on the premises. it the structure was
built in 1973 07' fates TENANT may possess a waterbed if he maintains waterbed insurance valued at
$100,000 or more. TENANTmust furnish LANDLORD with proof ofsaid insurance. TENANT trust use
bedding that complies with the load capacity or 'the manufitcturer.ln addition, TENANT
must also be in full
compliance with Civil Code Section 19405. TENANT shall not install or use any refrigerator, washer, shyer, m-
dishwasher that was not already furnished with the unit.
16. INSURANCE: TENANT may maintain a personal property insurance policy to cover any losses sustained
to TENANT'S personal property or vehicle. It is acknowledged that LANDLORD does not maintain this
insurance to cover personal property damage or loss caused by fire, theft, rain, water overflow /leakage, acts
o €GOD, and /of any other causes. It is acknowledged that LANDLORD is not liable for these occurrences. It is
acknowledged that TENANT'S insurance policy shall solely indemnify TENANT for any losses sustained.
T'ENANT'S failure to maintain said policy shall be a complete waiver of TENANT'S right to seek damages
against LANDLORD for the above stated losses.
17. TERMINATION OF LEASE /RENTAL AGREEMENT: ff this lease is based on a fixed term, pursuant to
paragraph 2, then at the expiration of said fixed term this lease shall be renegotiated.
18. POSSESSION: If premises cannot be delivered uI TENANT on the agree(! date due to loss, total or partial
destruction of the premises, or failure of previous TENANT to vacate, either party may terminate this
agreement upon written notice to the other party at their last known address. It is acknowledged that either
party shall have no liability to each other except that all sums paid to LANDLORD will be immediately
refunded to TENANT.
19, ABANDONMENT: It shall be deemed a reasonable belief by the LANDLORD that an abandonment of the
premises has occurred where the, within the meaning of Civil Code Section 195.1.2, where rent has been
unpaid for 14 consecutive days and the TENANT' has been absent from unit fm, 14 consecutive days. In that
event, LANDLORD may serve written notice Pursuant to Civil Code Section 1951.2. If TENANT does not
comply with the requirements of said notice in 18 days, the premises shall be deemed abandoned.
20. WAIVER: LANDLORD'S failure to require compliance with the conditions of this agreement, or to exercise
any right provided herein, shall not. be deemed a waiver by LANDLORD of such condition or right.
LANDLORD'S acceptance of rent with knowledge of any default under agreement by TENANT shall not be
deemed a waiver of such default, nor shall it limit LANDLORD'S rights with respect to that or any subsequent
right. If is further agreed between the parties that the payment of rent at any time shall not be a waiver to any
UNLAWFUL DETAINER action unless LANDLORD in writing specifically acknowledges that this constitutes a
waiver to the UNLAWFUL DETAINER action.
21. VALIDITY /SEVERABILITY: 11 any provision of this agreement is held to be invalid, such invalidity shall
not affect the validity or enforceability of any Other prmnituanof this agreement. --
Defendant's Initial
EXHIBIT 2 19
22-6T702NCvFEES III Ule,v,o1.acuooi.� iwwx|u I,/ arm, pell Iym,n'bnce aoy terms okh.`agrroxeo/o,o,
recover yusseosiuoo[ tile premises, tile preva/ii/l" pal |y shall /coovu if-Om the other p»rty/rxsonoWc
attorney fees. It /�ackoow4eJAod' Ili,
cwe:u tile pa "i,.
-U/:i/u/y'/iaJs sh,oiUcuo,�y io crease tile cosu'of ally
litigation I)CLIveen the partie.s. [I is also aCkrlowledgud rIjEL jury tIiHjs Tpepul-e it longer terg[j) of bult, to
adjudicate the coricrovelsy. oil this baf'S, all PHI-Lie� WaIVC their J'ighILS to nave anyinattel'Seffled byjui�, trial.
21 NOTICES; All notices totile tenant shall bcdecmod�ep/eJupoomxU(uXby first class madaddreoxedm
the ccoau\o,thr subject p,umiscsor upon yc/soou}ddivoy odar premises w/hethnroroor7�EN.4NTi,
actUd|y present aL tk,dmce[soNddivery.8UuoUcesrod`r|aod|mdsha||he*ervvdbrmoi|inXb/,stdoss
mail or- by personal deliver v to theTENANI
24. PERSONAL PROPERTY 017TENANT: Once TENANT vacai:s tile in-CillistS; all personal property left ul
the unit diuOhe stored hydhr LANDLORD for 18days /t within inartime Period, TE0&NT does ootcla]oo said
property, LANDLORD may dispose ofsaid iterns in any nnlcllel LANDLORD chooses.
2i ADDITIONAL RENT: All items owed under" this lease shot] hedeemed additional rent.
26. APPLICATION: All statements fit TENANIT'S application must be trine Or- this Will constitute a inatereal
breach of this lease.
Z7. ADDITIONAL TERMS:
2& ENTIRE AGREEMENT: The foregoing agreement, Including- ally attachments incoi porated by reference,
Constitute the endreaArcomeut between the parties and suyrnedesany oral urn/docccoyreseut*doosor
agreements that may have been mudehyeithcrpart y.ru/�hcr,1�EKAN7rep,cErumd`nLTE0AM?|/osrdie')
soie|}'ou�CM&0T'J/ud&,neut in entering into this a�rcemeoLT8NANT acknowledges having been advised ta
consult with independen0e.-al counsel before ell tering into this Agreein ent and has decided to waive Such
representation and advice. TENANTa cl-nowl edges that TENANThas read and understood this agreement and
has been furnished a duplicate original,
LANDLORD: BY: DATE
47 Z-�; �21
Address t
TENANT: BY:
EXHIBIT
20 Dnfnndant Initial
01
C
ADMiNISTRA'711,,E SERV4(,LW
- PO ll0Alilih V11. NMI
Permit Number
Project Number
Job Address:
Description:
Owner -
Applicant:
Date Paid:
Notation
Payment
EXHIBIT 3
X2010-1167
0911-2010 Today's Date Way 20, 2010
20271 ORCHID ST NB Receipt Number :8000016474
CONVERT (E) SFD TO R3.1 (6 PERSONS)/INT RMDL 153 SF
LU TERESA Y
WALKER BARRY
May 20, 2010 03:59 PM T + I D A
Check Number
MASTER
21
o ai $190.51
Initial: P2
$190.51
Defendant's Initial
MG.'- 11-2010 09:93 FRON:IRUTI- Cal rAt4E4,) 1r195 <I6_3: 9; T�)- 714P4E1.(x' I'. 1�
9
UC 204A (11"
Exhibit 4
State of California
Department of Social Services
Facility Number: 30600382$
Effective Date: 01/29/08 Total Capacity: 6
In accordance with applicable provisions of the Health and Safety Code
Of California, and its rules and regulations; the Department of Social
Services hereby issues
this License to
DUPONT RESIDENTIAL CARE, INC.
to operate and maintain a RESIDENTIAL - ELDERLY
ME
Name of Facility
IRVINE COTTAGE 19
1142 CORONA LANE
COSTA MESA CA 92626
This License is not transferable and is granted solely upon the fallowing:
SIX (6) R(Ni- AMBULATORY RESIDENTS, AGE RANGE 60 YEARS AND OVER
"HOSPICE WAIVER (2 RESIDENTS) EFFECTIVE 1 -29 -08
Client Groups 5arved: RCFE /HGSPICE
Complaints regarding services provided in this facility . should be
directed to:
SO. REGION AC /RES. DISTRICT OFFICE (714) 703 -2840
Jo Frederick
Deputy Director, Authorized Representative
Community Care Licensing: Division of Licensing Agency
POST IN A PROMINENT PLACE
Cv raola
22 , Defendant