HomeMy WebLinkAboutC-4145 - Zoning Implementation and Public Benefit Agreement, Annual ReviewAMENDMENT #1 TO
SETTLEMENT AND RELEASE AGREEMENT
This Amendment No. 1 to Settlement and Release Agreement is made and entered into
on March 10. 2009 by and between Sober Living by the Sea, Inc., F.G., an anonymously named
individual, J.W., an anonymously named individual, S.B., an anonymously named individual,
and B.H., an anonymously named individual (hereinafter, Sober Living and said four
anonymously named individuals are collectively referred to as "Claimants") and the City of
Newport Beach, a charter city and municipal corporation, and Edward D. Selich, Leslie J.
Daigle, Michael L. Henn, Steven Rosanksy, Don Webb, Nancy Gardner and Keith D. Curry, in
their capacity as members of City's City Council (collectively referred to as "City" hereinafter).
Claimants and City are collectively referred to as `Parties."
A. Recitals.
(i) The Parties hereto entered into an Agreement entitled Settlement and
Release Agreement dated January 27, 2009 ("the Agreement" hereinafter).
(ii) The implementation of the Agreement depends on City processing and
the Parties approving and executing another contract entitled "Zoning Implementation and
Public Benefit Agreement" which concerns Sober Living's continued business operations within
City's boundaries ("the Zoning Agreement" hereinafter).
(iii) A form of the Zoning Agreement was attached to the Agreement as
Exhibit "B" thereto.
(iv) The Parties have agreed to modifications to the Zoning Agreement and
those modifications have been incorporated in the form thereof finally approved by the Parties.
(v) It is the purpose of this Amendment No. 1 to substitute the final approved
Zoning Agreement for the form thereof originally attached to the Agreement as Exhibit "B."
B. Amendment No. 1.
NOW, THEREFORE , the Parties hereto agree as follows:
1. The Agreement hereby is amended by substituting that form of the Zoning
Agreement attached hereto as Exhibit "1" for the form thereof originally attached to the Zoning
Agreement as Exhibit "B."
2. Other than as expressly amended hereby, the Agreement and each and
every term and provision contained therein shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be
executed as of the dates indicated below and their attorneys have indicated their approval as to
form by their re pective signatures in the appropriate spaces below.
CITY OF I)IEWPORT BAQH, CITY COUNCIL
By:
3
Dated:
ATTEST:
By:
62
Leilani I Brown, City C'erk
Dated: 4Pt; Joa
APPROVED AS TO FORM:
CITY OF NRT B CH
►1
By:
David D. Hunt, City Attorney
Dated: eke-0 01
By:
ames L. Markman, Special Counsel
for the City of Newport Beach
Dated: 4' /'1 -oq
CLAIMANTS:
SOBER LIVING BY THE SEA, INC.
By:
Name
Dated:
BURKE, WILLIAMS AND SORENSON LLP
ATTORNEYS FOR CLAIMANTS
ON BEHALF OF F.G., J.W., S.B. AND B.H.
By:
Richard Terzian
Dated:
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SETTLEMENT AND RELEASE AGREEMENT
5
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SETTLEMENT AND RELEASE AGREEMENT
January 27,•
This Settlement and Release Agreement ("Agreement" hereinafter) dated 0claber
2009 is entered into by and among Sober Living by the Sea, Inc. ("Sober Living"
hereinafter), F.G., an anonymously named individual, J.W., an anonymously named individual
S.B., an anonymously named individual, and B.H., an anonymously named individual
(hereinafter, Sober Living and said four anonymously named individuals are collectively referred
to as "Claimants") and the City of Newport Beach, a charter city and municipal corporation, and
Edward D. Selich, Leslie J. Daigle, Michael L. Henn, Steven Rosansky, Don Webb, Nancy
Gardner and Keith D. Curry, in their capacity as members of City's City Council (collectively
referred to as "City" hereinafter). Claimants and City are collectively referred to as "Parties."
This Agreement is entered into in reference to the following Recitals which Parties agree are
accurate to the best of their knowledge or belief.
RECITALS
A. On February 13, 2007, City's Council adopted its Resolution No. 2007-10,
initiating an amendment to Title 20 of City's Municipal Code to revise land use classifications
and definitions related to group residential uses.
B. On April 24, 2007, City's Council adopted its Ordinance 2007-8 which imposed a
temporary moratorium on the establishment of most new group residential uses and directed the
City's Planning Department, in cooperation with the City Attorney, to analyze the extent and
effectiveness of regulatory controls affecting group residential uses.
C. The period of the moratorium referred to in Recital B above was extended by
City's Council's Ordinance Nos. 2007-10 and 2007-16 and was for the most part superseded by
the provisions of Ordinance No. 2008-05 discussed below.
D. On January 8, 2008, City's Council conducted a public hearing on a proposed
ordinance modifying City's code provisions regulating group residential uses in the City and,
thereafter, conducted first reading of Ordinance No. 2008-05.
E. On January 22, 2008, City's Council passed Ordinance No. 2008-05, which,
among other things, included provisions requiring then current operators of certain residential
care facilities (defined in the Ordinance) in R-1, R-1.5 and R-2 Zones to obtain use permits to -
continue those operations at those locations or seek alternate forms of relief provided in the
Ordinance or abate those operations within defined time periods.
F. Sober Living is a California Corporation and an indirect wholly -owned subsidiary
of CRC Health Group, Inc., a Delaware Corporation.
G. City of Newport Beach is a municipal corporation and Charter City under the laws
of the State of California.
H. At the time of the passage of City's Ordinance No. 2008-05 Sober Living
operated alcoholism and drug abuse treatment and recovery facilities licensed by the California
Department of Alcohol and Drug Programs ("ADP") (the "Licensed Facilities") and non -treatment
residential facilities not required to be licensed ("Sober Living Homes"). The ADP -licensed
treatment facilities are hereinafter referred to as Licensed Facilities and the non -licensed non -
treatment facilities are referred to as Sober Living Homes. Sober Living was operating these
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Settlement Agreement
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Licensed Facilities and Sober Living Homes in residential and Specific Plan zones in that area
of City described as the Peninsula, Lido Isle, West Newport and Newport Shores (the
"Peninsula Zone" as shown on Exhibit A). Sober Living had the capacity to house 238 clients
in that area at one time during 2007. "Facility" or "Facilities" means a residential unit used or
occupied by persons in recovery from alcoholism and or drug abuse. Facilities may be
"Licensed Facilities" or "Sober Living Homes? As used in this Agreement, all Facilities
constitute "residential care facility" uses within the context of the City's zoning ordinance.
I. On February 22, 2008, Claimants filed an action entitled Sober Living By The
Sea, Inc., et al. v. City of Newport Beach, a municipal corporation, et al., United States District
Court, Central District of Califomia, Case No. SACV08-00200 JVS (RNBx) ("the Action"
hereinafter), asserting, among other things, that Ordinance No. 2008-05 discriminated against
Claimants on its face, violated State of California and federal housing laws and monetarily
damaged Sober Living's property interests. City has denied and continues to deny all such
assertions and allegations and has asserted and continues to assert that Ordinance No. 2008-
05 is not discriminatory and does not violate any state or federal law.
J. In the context of the Action, Claimants filed a motion for the issuance of a
preliminary injunction precluding City from applying the provisions of Ordinance 2008-05 to
Claimants. That motion was granted in part and denied in part,. Claimants have filed a notice
of appeal pertaining to that portion of the Court's ruling denying their motion for a preliminary
injunction.
K. Sober Living has filed with City and there are now pending nineteen (19) use
permit applications seeking to continue operations of some of its Facilities.
L. Sober Living also filed a complaint with the U.S. Department of Housing and
Urban Development, asserting among other things, that Ordinance No. 2008-05 violates federal
housing laws ("H.U.D. Complaint" hereinafter). City has responded by denying all such
allegations and providing H.U.D. with materials pertaining to the passage of Ordinance No.
2008-05. The H.U.D. Complaint has been forwarded to the United States Department of Justice
for further action.
M. The Parties have engaged in a mediation process conceming the circumstances
described hereinabove and, as a result thereof, now desire to resolve all of the issues raised in
the Action and the H.U.D. Complaint and enter into this Agreement, to FINALLY, FULLY,
COMPREHENSIVELY AND CONCLUSIVELY settle the Action and to request of the
Department of Justice that no further action be taken on the H.U.D. Complaint as well as all
underlying and related contentions and allegations, by and through the passage of an ordinance
which would approve a Zoning Implementation and Public Benefit Agreement ("Zoning
Agreement' hereinafter) substantially identical to that document attached hereto as Exhibit B.
The Parties understand that the approval of the Zoning Agreement is subject to the:
(i) Conduct of public hearings required by law and the open and unbiased application of
City's police powers to its Planning Commission's and its Council's consideration of that
approval; the
(ii) Referendum power of the City's electorate, and a
(iii) Legal challenge by any interested party.
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Settlement Agreement
Page 3 of 13
N. This Agreement permits Sober Living to operate up to 156 beds for Licensed
Facilities or Sober Living Homes in the Peninsula Zone and, upon dispersion of the 156 beds
per the Zoning Agreement up to an additional 48 beds of such facilities in those areas of the city
outside of the Peninsula Zone and zoned for multi -family residential purposes or any other
zones permitting multiple residential use pursuant to the Zoning Agreement.
O. Sober Living's operations of the aforesaid Licensed Facilities and Sober Living
Homes are to be governed by the Zoning Agreement, when it becomes effective.
NOW, THEREFORE, in consideration of the above Recitals, covenants and agreements
therein, the Parties agree as follows:
SETTLEMENT
1. DEFINITIONS.
As used herein, the term "Claims° means all claims, charges, liabilities, damages,
obligations, costs, expenses (including without limitation attorneys' fees), rights of action and
causes of action of any kind, legal or equitable, whether known or unknown, anticipated or
unanticipated, past, present or future, contingent or fixed, existing, claimed to exist or which
may hereafter exist under the United States Constitution, the California Constitution, applicable
common law, contract, tort or other federal, state, local, or municipal law or regulation, relating
in any way to the facts and circumstances that give rise to the Action and the H.U.D. Complaint,
whether said facts and circumstances occurred prior to or after the filing of the Action or the
H.U.D. Complaint.
2. REPRESENTATIONS AND WARRANTIES.
A. Each party hereby represents and warrants that:
(i) It has the power and authority to enter this Agreement and the
attached Zoning Agreement.
(ii) None of the Claims released hereunder have been in the past or
will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or
entity.
B. The Claimants hereby agree that they shall indemnify and defend and
hold the City and its elected and appointed officials, boards, commissions, officers, agents,
attorneys, representative, and employees, harmless from any and all liability, Toss, expense,
damage, or claims which may arise directly or indirectly from or in connection with any
allegation that the warranties and representations made in this section are false and/or for the
breach of any of the terms and conditions of this section.
C. City hereby agrees that it shall indemnify and defend and hold harmless
Claimants and their officers, agents, attorneys, representatives and employees harmless frpm
any and all liability, claims, expense, damage, or claims which may arise directly or indirectly
from or in connection with any obligation that the warranties and registrations made by City on
their side are false and/or for the breach of any of the terms and conditions of this section.
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Settlement Agreement
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D. Nothing herein shall be deemed as a waiver or release of the warranties,
representations, rights and obligations as set forth in this section.
3. TERMS OF SETTLEMENT.
A. City Obligations.
(i) Nothing in this Agreement is intended to or shall have the lawful
effect of contracting away the City's zoning authority or any other aspect of the City's police
power. City Staff and the City Council have previously reviewed the terms and conditions of the
Zoning Agreement, and have concluded that pursuant to the State law and the City Municipal
Code, City Staff may lawfully present the Zoning Agreement to the City's Planning Commission
and City Council for approval or disapproval, subject to duly noticed hearings. City Staff has
further preliminarily concluded that no CEQA analysis shall be required to be completed prior to
the City considering approval of the Zoning Agreement.
(ii) The City shall schedule public hearings on the ordinance which, if
adopted, would approve the Zoning Agreement. If the City Council fails to approve the
ordinance within thirty (30) days following conclusion of the public hearings thereon, this
Agreement shall be of no further force or effect on the thirty-first (31 51) day.
(iii) At City's sole and absolute discretion, City shall timely file a Notice
of Determination, Notice of Exemption, or other appropriate CEQA notice if the ordinance
approving the Zoning Agreement is passed, and shall pay the cost of any environmental
assessment, negative declaration or environmental impact report that is determined to be
required.
B. Claimants' Obligations.
(i) Claimants and each of Claimants' agents shall not oppose the
City's approval of the Zoning Agreement and shall support, both verbally and in writing, if
requested by the City, the City's approval of the Zoning Agreement ("Support Covenant").
(ii) Claimants shall not file any lawsuits, administrative appeals
pursuant to the City's Municipal Code, or take any other action whatsoever, in whatever shape
or form, to challenge, appeal, or otherwise seek to influence in any respect, approval of the
Zoning Agreement, with the sole exception of the Support Covenant as set forth in the
immediate preceding Paragraph 3B(i), unless it is necessary to support or defend the validity of
the Zoning Agreement or this Agreement.
(iii) Claimants shall notify HUD and DOJ in writing that the lawsuit has
been stayed pending the processing of a potential settlement.
C. General Obligations of All Parties.
The Parties will use their best efforts and cooperate as necessary in
performing and implementing this Agreement in good faith.
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Settlement Agreement
Page 5 of 13
4. GENERAL RELEASE.
A. General Release and Discharge of Claims by Claimants. Upon the
Effective Date of this Agreement, Claimants, and each of them, for themselves and all of their
predecessors, successors, assigns, representatives, attorneys, employees, officers, and agents,
do hereby fully and forever release and discharge the City, and all of its predecessors,
successors, assigns, representatives, attorneys, agents, elective and appointive council
members, council boards, commissions, commissioners, officers, employees (hereinafter
collectively all persons and entities will be referred to as °City Released Persons"), of and from
any and all actions, Claims, demands, rights, damages, costs, litigation expenses, attorneys
fees, expert fees, consultant fees, other fees, interest, lost profits and earnings, diminution in the
value of the business, loss of past, current, future and subsequent business and patronage, the
value of the leasehold interest, the loss of goodwill, any inverse condemnation claims, any
claims for the taking of property, any other damages, costs or expenses arising from any and ail
actions of the City Released Persons and compensation of any nature whatsoever, which
claimants have or may hereafter accrue, including without limitation, any and all known and
unknown, foreseen and unforeseen claim, damage and injury, relating to, or in any way, directly
or indirectly, involving or arising out of any facts or circumstances related to the Action or the
H.U.D. Complaint.
B. General Release and Discharge of Claims by City. Upon the Effective
Date of this Agreement, City, and each of them, for themselves and all of their predecessors,
successors, assigns, representatives, attorneys, employees, officers, and agents, elective and
appointive council members, council boards, commissions, and commissioners do hereby fully
and forever release and discharge the Claimants, and all of their predecessors, successors,
assigns, representatives, attorneys, agents, officers, directors and employees (hereinafter
collectively all persons and entities will be referred to as "Released Persons"), of and from any
and all actions, claims, demands, rights, damages, costs, litigation expenses, attorneys fees,
expert fees, consultant fees, other fees, interest, lost profits and earnings, any other damages,
costs of expenses arising from any and all actions of the Released Persons and compensation
of any nature whatsoever, which they have or may hereafter accrue, including without limitation,
any and all known and unknown, foreseen and unforeseen claim, damage and injury, relating to,
or in any way, directly or indirectly, involving or arising out of any facts or circumstances related
to the Action or the H.U.D. Complaint.
C. Waiver of Claims. It is the intention of the Parties, in executing this
Agreement and receiving the consideration recited herein, that this Agreement will be effective
as a full and final accord and satisfaction and general release of all Claims, debts, damages,
liabilities, demands, obligations, costs, expenses, disputes, actions or causes of action, that the
Parties may have against each other by reason of any acts, circumstances or transactions
relating in any way to the Action or the H.U.D. Complaint and occurring before the date of this
Agreement. In furtherance of this intention, the Parties hereby acknowledge that they are
familiar with California Civil Code §1542 and that they hereby expressly waive the protection of
that section, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
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Settlement Agreement
Page 6 of 13
The Parties each waive and relinquish any right or benefit that they have or may have
under California Civil Code §1542. That is, the Parties shall not invoke the benefits of California
Civil Code §1542, or any such similar law, to prosecute any Claims released hereunder. In
connection with such waiver and agreement, each of the Parties acknowledge that they are
aware that they or their attorney may hereafter discover Claims or facts or legal theories in
addition to or different from those which they know or believe to exist with respect to the Action
or H.U.D. Complaint, but that it is the intention hereby to fully, finally, and forever settle and
release all of the Claims, known or unknown, suspected or unsuspected, which do now exist,
may exist, or heretofore have existed by reason of any acts, circumstances, facts, events, or
transactions relating in any way to the Action or the H.U.D. Complaint before the date of this
Agreement. It is expressly acknowledged and understood by the Parties to this Agreement that
the Parties separately bargained for the foregoing waiver of the provisions of §1542 of the
California Civil Code. The Parties consent that this release shall be given full force and effect in
accordance with each and all of the express terms and provisions, including those terms and
provisions related to such unknown and unsuspected claims, demands, and causes of action
relating in any way to or arising out of the facts and circumstances underlying or connected with
the Action or the H.U.D. Complaint.
D. Representations and Warranties. Each Party represents and warrants to
the other that, except as otherwise expressly provided in this Agreement, they are not relying on
any representation whatsoever, whether express or implied, including without limitation,
representations of fact or opinion made by or on behalf of the Parties herein.
5. DISMISSAL OF THE ACTION AND WITHDRAWAL OF SUPPORT OF THE
H.U.D. COMPLAINT.
Within five business days after the Effective Date, as defined below, Sober Living
shall take the following actions:
A. Sober Living shall dismiss the Action in its entirety without
prejudice and shall dismiss or abandon without prejudice the appeal taken from the order
partially granting and partially denying Sober Living's motion for a preliminary injunction; and
B. Sober Living shall, affirmatively request that H.U.D. and the United
States Department of Justice take no further action based upon the HUD complaint. Should a
federal process continue thereafter, Sober Living shall participate therein only to the extent
required by law.
In the event that litigation is instituted to challenge this Agreement or the Zoning
Agreement on a date subsequent to the Effective Date and that litigation results in this
Agreement or the Zoning Agreement being finally held to be invalid by the entry of Judgment by
a Court of competent jurisdiction after the exhaustion of all available appeals and petitions,
Sober Living shall be afforded the opportunity within 90 days of the date of entry of that
Judgment to refile the Action, to begin fully participating in the processing of the H.U.D.
Complaint or file a new complaint with H.U.D. and to recommence the processing of use permit
applications without being impeded in any way by the passage of time from the date of City's
Council's approval of this Agreement to the expiration of said 90 day period.
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Settlement Agreement
Page 7 of 13
6. EFFECTIVE DATE OF AGREEMENT
This Agreement shall not become effective, and except as set forth in Subsection
C of this Section 6 and Section 7, neither party shall have any rights or obligations hereunder
until the 'Effective Date,"
A. Effective Date of this Agreement: This Agreement shall become effective
on:
The 91st day after the City Council's passage of the ordinance
approving this Agreement, or
ii. If a referendum or other elective challenge to the ordinance
approving this Agreement qualifies to be placed on the ballot, then on the 31st day after the City
Clerk certifies that the referendum or other elective challenge has failed to pass, or
iii. If litigation is instituted to challenge this Agreement prior to the
Effective Date, established in accordance with 6.A i. and ii above, then on the 3151 day after the
litigation is terminated, the time for appeal has expired, and the legal challenge has been
unsuccessful.
B. Term. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall expire at the conclusion of the 25th year thereafter.
C. Stav of Ordinance 2008-05 Pending Effective Date. Prior to the effective
date of the ordinance adopting this Agreement, or that date upon which it becomes clear that
there shall be no Effective Date, whichever is later, the Operator's use permit process shall be
tolled, and the City shall not otherwise enforce the provisions of Ordinance 2008-5.
7. ACTIONS PENDING EFFECTIVENESS OF THIS AGREEMENT
The Parties agree that prior to the Effective Date, the Parties shall jointly seek to
maintain stays of the Action, both in the Appellate and District courts. During this same period
of time: (i) Claimants shall not take any action to affirmatively cause the HUD Complaint to be
prosecuted; (ii) City shall not enforce any provision of Ordinance No. 2008-05 against
Claimants; (iii) Sober Living shall agree to abide by the terms of Exhibit B to the Zoning
Agreement within 30 days after execution of this Agreement.
8. MISCELLANEOUS PROVISIONS.
A. This Agreement shall be governed and interpreted in accordance with the
laws of the State of California. Each party hereto agrees that the laws of the State of California
shall apply and that any action brought hereunder shall be subject to the laws and statutes of
the State of California except as expressly provided for in the Zoning Agreement. The venue of
any legal challenge to this Agreement or the Zoning Agreement shall be the Superior Court of
California for Orange County or the United States District Court for the Central District of
California — Southern Division.
B Integrated Agreement. This Agreement and the exhibits attached hereto
contain the entire understanding and agreement between the Parties. No other representations,
covenants, undertakings, or other prior or contemporaneous agreements, oral or written,
Settlement Agreement
Page 8 of 13
respecting such matters, which are not specifically incorporated herein, shall be deemed in any
way to exist or bind any of the Parties hereto. The Parties hereto acknowledge that this
Agreement has been executed without reliance upon any such promise, representation, or
warranty not contained herein.
C. Modification. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the Parties. No waiver of any of
the provisions of this Agreement shall be deemed to constitute a waiver of any other provision
whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the Parties.
D. Binding on Successors. This Agreement and the covenants and
conditions contained herein shall obligate, bind, extend to and inure to the benefit of the Parties
and each of their respective successors in interest, including, but not limited to, their
administrators, executors, owners, partners, officers, directors, shareholders, legal
representatives, assignees, attorneys, successors, and agents or employees of the Parties
hereto. Prior to assigning any rights or obligations Claimants have with respect to this
Agreement and the Zoning Agreement to a third party, Claimants shall obtain written
confirmation and deliver to City that such assignee shall be bound by the terms of this
Agreement and that such Assignee shall also be entitled to receive the benefits of this
Agreement and the Zoning Agreement.
E. Representation. The Parties affirmatively represent that they have been
represented by counsel of their own choosing. They have read this Agreement and have had
the terms used herein and the consequences thereof explained by their attomeys of choice.
F. Construction. This Agreement shall not be construed against the Party
preparing it, but shall be construed as if all Parties jointly prepared this Agreement. Any
uncertainty and ambiguity shall not be interpreted against any one Party. Language in all parts
of the Agreement shall be in all cases construed as a whole according to its plain meaning.
G. Attorneys' Fees and Costs. All attorneys' fees, expert fees and costs
incurred through the date of this Agreement that relate in any way to the Action, the H.U.D.
Complaint or the Zoning Agreement, the negotiation or preparation of this Agreement or any
action called for herein, shall be bome by the respective Parties and each Party agrees to waive
any claim, or claims, against any of the other Parties for the reimbursement of all, or any portion
of said fees or costs. Should suit be brought to enforce or interpret any part of this Agreement,
the prevailing party shall be entitled to recover attorneys' fees and related costs.
H. No Admission of Liability. This Agreement and the releases contained
herein and the consideration referred to herein are done to save litigation expense and to effect
the compromise and settlement of claims and defenses which are denied, disputed, and
contested. Nothing contained herein shall be construed as an admission by any Party of any
liability of any kind to any other Party. The Parties agree that each Party expressly denies that it
is in any way liable or indebted to any other Party and no person interpreting this Agreement
shall be able to infer that any Party has engaged in any conduct giving rise to liability to any
other Party.
Gender Neutral. Whenever in this Agreement the context may so require,
the masculine, feminine and neutral genders shall be each deemed to include the other and the
singular and the plural shall refer to one another.
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Settlement Agreement
Page 9 off 3
J. Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original and all of which shall constitute an
agreement to be effective as of the date of signing. Further, signatures transmitted and
memorialized by facsimile shall be deemed to have the same weight and effect as an original
signature. The Parties may agree that an original signature will be substituted at some later
time for any facsimile signature.
K. Captions and Interpretations. The paragraph titles and captions are
inserted in this Agreement as a matter of convenience. As such, the paragraph titles or
captions are not intended to define or describe the scope of any provision.
L. Invalid Clause May Be Severed. If any provision, clause, or part of the
Agreement is adjudged illegal, invalid or unenforceable, the balance of this Agreement shall
remain in full force and effect.
M. Survival of Warranties and Representatives. The warranties and
representations made in this Agreement are deemed to survive the execution of this Agreement.
N. Conflict. In the event of conflict between this Agreement and the
attaching Zoning Agreement, the latter shall prevail.
O. BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT THEY
HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR LEGAL COUNSEL ABOUT
ITS EFFECT, AND THAT THEY FULLY UNDERSTAND IT.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first above written and their attorneys have indicated their approval as to form by their
respective signatures in the appropriate spaces below.
[SIGNATURES ON FOLLOWING PAGES]
lu
CITY OF NEWPORT azAC PITY COI.JNCIL
By: I/ lL
Edward D. Selich, Mayor
Dated: /-2141
ATTEST:
By: U1�X1MM CP 'kUfUM-'
LaVeen CitU Clerk
Vella Ma"
Dated: 7MSKI 21. VOg
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH
By:
ity Attorney
ac.
Dated: 1 t 23) Zs S
By: % ar
mes L. Markman, Special Counsel
for the City of Newport Beach
Dated: 1 9 ^ Of
Settlement Agreement
Page 11 of 13
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Settlement Agreement
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Exhibit A
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
The lands within the yellow boundary as shown below.
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
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Settlement Agreement
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Exhibit B
Zoning Implementation and Public Benefit Agreement
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