HomeMy WebLinkAboutC-5779 - Settlement Agreement and ReleaseSETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into
on February 2� , 2014 ("Effective Date") by and between the Newport Beach Dock
Owners Association and Robert McCaffrey (collectively, "Association") and the Newport
Beach City Council and the City of Newport Beach (collectively, "City") (together, the
"Parties").
RECITALS
WHEREAS, the City is a municipal corporation and charter city duly organized
and existing under the laws of the State of California;
WHEREAS, the Newport Beach City Council is the elected body that represents
and governs the City under the City Charter;
WHEREAS, the Association is a California corporation composed of tidelands
users and an individual whose principal address is 1410 South Bay Front, Newport
Beach, California 92662;
WHEREAS, on February 14, 2013, the Association filed a complaint against the
City alleging a violation of the Ralph M. Brown Act relating to the City's adoption of a
resolution establishing fair market value rent for residential piers and a model residential
pier permit;
WHEREAS, the City disagrees with the Association's allegations and asserts that
it has fully complied with all requirements of the Ralph M. Brown Act; and
WHEREAS, the Parties desire to mutually resolve all disputes and differences
between them as to the claims set forth in Newport Beach Dock Owners Association, at
al. v. Newport Beach City Council, at al. (Orange County Superior Court Case No. 30-
2013-00630419-CU-WM-CJC) ("Litigation").
NOW, THEREFORE, for their mutual benefit, the Parties hereby agree and
confirm that this Agreement finally resolves and satisfies all claims that were or could
have been asserted in the Litigation and agree as follows:
1. The recitals provided above are true and correct and are incorporated into
the substantive portion of this Agreement.
2. The City will amend Newport Beach Municipal Code Subsection
17.60.030(A) to provide as follows: "upon the request of the abutting upland residential
property owner, lessee or agent of the owner, and in accordance with all applicable
laws, a residential pier permit shall be issued for up to ten (10) years. The City shall
extend the term of any residential pier permit for up to ten (10) years upon: (i) permit
expiration and the request of the owner, lessee or agent of the owner; or (ii) upon sale
of the abutting upland property and the request of the new owner, lessee or agent of the
owner. The maximum term of any permit issued hereunder, with extensions, shall be
fifty (50) years. After fifty (50) years, the abutting upland residential property owner,
lessee or agent of the owner shall be required to apply for a new residential pier permit.
A copy of the Revised Residential Tidelands Pier Permit, as adopted by Resolution No.
2013-88, is attached to this Agreement.
3. Within five (5) calendar days of the Effective Date of this Agreement, the
Association shall dismiss the Litigation with prejudice.
4. The Parties shall bear their own attorneys' fees and costs.
5. This Agreement shall constitute a complete and final settlement of all
claims which were asserted, or could have been asserted, by the Association against
the City in the Litigation.
6. This Agreement shall not constitute an admission of evidence of any fact,
wrongdoing, misconduct, or liability on the part of the City, its officers and employees or
any person affiliated with the City.
7. For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Association hereby releases and forever discharges the City
from any and all actions, causes of action, suits, controversies, claims, damages and
demands, at law or in equity, that Association now has or had relating to the Litigation,
including any claim for damages, fees, or costs arising out of the Litigation.
8. This Agreement is fully binding on the Parties, their successors and
assigns, and has been reviewed by legal counsel, and the terms are fully understood
and voluntarily accepted as a complete and final settlement of any and all claims
between the Parties, including those in the Litigation.
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9. This Agreement constitutes the entire agreement between the Parties.
The individuals executing this Agreement on behalf of the respective Parties have
express and lawful authority to do so, and it may be executed in counterparts.
10. This Agreement shall be construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
Date: 3 zV11
By:
Aaron C. Harp
City Attorney
ATTEST:
Dater
By: 1-
Leilani I. Brown
City Clerk �,c.TPMQtl
CITY:
Date: 4k'P,11-\
By:
Dave Kiff"
City Manager
ASSOCIATION- /
Date:
Name: _ Robert McCaffrey
Title: President
Date: 2 t 2 t t 10 t Y
By:_
Name:
Title:
Attachment: Revised Residential Tidelands Pier Permit
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Residential Tidelands Pier Permit
(1) Permittee: This Permit is issued on to
("Permittee") to construct/maintain a residential pier located upon City of Newport Beach ("City")
tidelands, as more particularly described and depicted in Attachment 1 ("Premises"), which is
attached hereto and incorporated by reference. By acceptance of this Permit, the Permittee
agrees to be bound by the terms contained in this Permit.
(2) Term: This Permit shall be valid for a period of _ year(s) beginning on March 1, 20_
and expiring on February _, 20_, unless terminated earlier as provided herein. A new permit
may be automatically issued upon expiration, provided rent is paid and the pier is maintained.
The City's longstanding policy is to re -issue residential permits annually to the upland property
owner, who also owns the physical dock associated with the Premises.
(3) Rent: Rent shall be calculated pursuant to Resolution No. 2013-88, or any
successor/amended resolution. Resolution No. 2013-88 and any successor/amended
resolution are automatically incorporated by reference into this Permit, without any further action
by the parties, when adopted by the Newport Beach City Council.
(A) Periodic Payment of Rent: One-sixth (1/6) of annual rent for a particular year
shall be received by the City within nineteen (19) days after the mailing of the
Municipal Services Statement to Permittee. Bi -monthly rent will be billed with the
Permittee's Municipal Services Statement.
(B) Place for Payment of Rent: All payments of rent shall be made in lawful money of
the United States of America and shall be paid to City on line at
www.newportbeachca.gov, in person or by United States' mail, or overnight mail
service, at the Cashier's Office located at 100 Civic Center Drive, Newport
Beach, CA 92660, or to such other address as City may from time to time
designate in writing to the Permittee. The Permittee assumes all risk of loss and
responsibility for late charges and delinquency rates if payments are not timely
received by the City regardless of the method of transmittal.
(C) Late Charges: A ten percent (10%) late charge, or the maximum rate allowable
under State law, shall be added to all payments due but not received by City by
the due date.
(D) Third -Party Use: This Permit ❑ allows / ❑ does not allow (check one) the
Permittee to rent/lease the Premises to a third -party.
(4) Utilities and Taxes: The Permittee is solely responsible for obtaining all utilities and
paying all taxes (including possessory interest tax, if applicable), fees and assessments for the
Premises or improvements located thereon.
(5) Maintenance: The Permittee assumes full responsibility for operation and maintenance
and repair of the Premises and associated improvements throughout the term of this Permit at
its sole cost, and without expense to the City.
CI
(6) Transfer/Assignment: This Permit may be transferred or assigned by the Permittee as
provided in the Newport Beach Municipal Code.
Attachment 1
Description & Depiction of Premises
Premise's Address (or description of general location):
Premise's Square Footage:
Premise's Depiction:
M