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HomeMy WebLinkAboutAGMT - Bixby Ranch Company (Settlement & Release Agreement) • • • - SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE (the "Agreement ") is entered into as of June 19, 2000, by and between THE CITY OF LOS ALAMITOS ( "Petitioner "), on the one hand, and THE CITY OF SEAL BEACH ( "Respondent ") and BIXBY RANCH COMPANY ( "Real Party in Interest "), on the other hand, with reference to the following facts: RECITALS A. On December 23, 1998, Petitioner, together with the Rossmoor Homeowners Association and Century National Properties, Inc. (collectively, "Petitioners ") filed a Petition for Writ of Mandate and Complaint for Declaratory Relief (the "Complaint ") against Respondent and Real Party in Interest in the Superior Court of the State of California, County of Orange, Case No. N803636 (the "Lawsuit "). The Complaint alleged that the Environmental Impact Report ( "EIR ") for a mixed -use development of a 218 acre parcel owned by Real Party in Interest, located within the City of Seal Beach, and known as the Bixby Old Ranch Towne Center Project (the "Project ") did not comply with the California Environmental Quality Act, California Public Resources Code section 21000 et seq. ( "CEQA "). For purposes of this Agreement, the Project shall refer to and mean the Project as approved by the Seal Beach City Council on November 23, 1998, and as modified by the Seal Beach City Council on August 23, 1999. B. On June 18, 1999, the Superior Court, Judge William McDonald presiding, entered an Order Granting Petition for Peremptory Writ of Mandate. IRV #6571 v2 • • - C. On August 3, 1999, the Clerk of the Superior Court issued a Peremptory Writ of Mandate pursuant to the Court's June 18 Order and also entered Judgment. The Court retained jurisdiction over the return of the writ to determine whether Respondent had taken those actions necessary to comply with the Superior Court's Order. • D. On August 25, 1999, Respondent filed its Return to Peremptory Writ of Mandate and Request for Discharge of the Writ (the "Return"), describing the steps it had taken to address and correct the deficiencies that the Superior Court had identified in its June 18 Order and the documentation of those steps (the "Revised EIR "). E. On September 13, 1999, Petitioners filed an opposition to the Return. F. On September 30, 1999, the Superior Court entered its minute order discharging the writ of mandate, finding that the Revised EIR complied with the Writ of Mandate and further finding that the Revised EIR did not include new significant information or rejection of mitigation measures. G. On October 1, 1999, Petitioners filed a Notice of Appeal, appealing the Judgment, the order discharging the Writ of Mandate, and all orders and rulings of the Superior Court in the matter. The Appeal was assigned Case No. G026148. H. On November 9, 1999, Petitioners filed a motion for attorneys' fees. I. On January 3, 2000, the Superior Court entered an order denying Petitioners' motion for attorneys' fees. IRV #6571 v2 -2- • • M • • - - J. On January 28, 2000, Petitioners filed a Notice of Appeal, appealing the Superior Court order denying their motion for attorneys' fees. This Appeal was assigned Case No. G026734. K. The parties have agreed to resolve all claims arising out of this litigation. Real Party in Interest has agreed to make a payment to Petitioner as more fully described in paragraph 1 below, and Petitioner has agreed to dismiss both of its appeals with prejudice. NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained herein, and further good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Petitioner, Respondent and Real Party in Interest agree as follows: AGREEMENT 1. Payment to Petitioner. (a) Real Party in Interest shall pay to Petitioner the sum of Two Hundred Seventy Five Thousand Dollars ($275,000.00). Alternatively, at Petitioner's election, Real Party in Interest shall perform construction work on street medians within the City of Los Alamitos in conjunction with and at the same unit cost as other similar Project - related construction activities, in which case Real Party in Interest shall apply a credit of Two Hundred Seventy Five Thousand Dollars ($275,000.00) ( "in lieu construction ") and Petitioner shall pay to Real Party in Interest all excess costs above said amount related to such construction in the City of Los Alamitos. Petitioner shall make its election as to the form of payment in writing, on or before August 1, 2000. If payment is to be made in money, such payment shall be made on or before August 15, 2000. IRV #6571 v2 -3- • • (b) Petitioner and Real Party in Interest acknowledge and agree that said payment or in lieu construction shall be in full satisfaction of any "fair share" payments owing to Petitioner by Real Party in Interest pursuant to the Final EIR for the Project. Other than the foregoing, there shall be no payments of any kind to Petitioner from either Respondent or Real Party in Interest in connection with the Project whether pursuant to the Final EIR or on any other basis whatsoever. (c) In the event that Petitioner elects to receive in lieu construction as satisfaction pursuant to paragraph (a) above: (i) the timing of such construction shall be at Real Party in Interest's discretion and shall be coordinated with other Project - related construction activities, (ii) on or before August 1, 2000, Petitioner and Real Party in Interest shall agree as to the scope and design of such work, the costs of such work, and the terms of payment for such work, (iii) all costs for such construction in the City of Los Alamitos, including without • limitation any amount owed by Petitioner above the in -lieu construction amount, shall be equivalent to those unit costs for similar construction of medians related to the Project in the City of Seal Beach, and (iv) Real Party in Interest shall keep true and accurate books and records in regards to the construction of the medians in the City of Los Alamitos, and medians otherwise related to the Project. Petitioner shall have the right at the completion of such construction at its own expense to audit said books and records of Real Party in Interest solely to verify the cost of construction of the medians. Petitioner's right to audit is limited to the construction of the medians and under no circumstances shall Petitioner have the right to examine records belonging to Real Party in Interest relating to other business or construction. IRV #6571 v2 -4- • • 2. Dismissal of Appeals. Upon execution of this Agreement, Petitioner shall execute and deliver to Real Party in Interest for filing an Abandonment and Request for Dismissal of Appeal in Case No. G026148 and also in Case No. G026734. 3. Mutual Releases. (a) Petitioner on behalf of itself and its City Council, Council Members, officers, employees, agents, representatives, successors, assigns and all persons acting by, through, under, or in concert with any of them, hereby releases and forever discharges Respondent, its City Council and Council Members, and Real Party in Interest, and each of them, together with their respective successors, assigns, employees, agents, representatives, partners, shareholders, officers, directors and affiliated corporations, and all persons acting by, through, under, or in concert with any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, hidden or concealed, fixed or contingent (collectively referred to as "Claims "), that Petitioner now has or had against Respondent or Real Party in Interest, or either of them, from the beginning of time until the date hereof, asserted in or arising from the Lawsuit, including any appeals therefrom. (b) Respondent and Real Party in Interest on behalf of themselves and respective City Council and Council Members, officers, successors, assigns, employees, agents, representatives and all persons acting by, through, under or in concert with any of them, hereby release and forever discharge Petitioner, its City Council, Council Members, officers, successors, assigns, employees, agents, representatives and all persons acting by, through, under, or in 1RV #6571 v2 -5- • • concert with any of them, of and from any and all manner of action or, actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, hidden or concealed, fixed or contingent (collectively referred to as "Claims "), that Respondent and/or Real Party in Interest have, may have, or had against Petitioner, from the beginning of time until the date hereof, arising from the filing or prosecution of the Lawsuit, including any appeals therefrom. (c) It is the express intention of the parties hereto that the mutual releases provided in paragraphs (a) and (b) of this section shall include, without limitation, the waiver of any claims that the parties may have against each other for costs and fees arising out of the Lawsuit and any appeals therefrom, with exception as provided in paragraph 6. (d) The foregoing releases shall not be construed to bar the Parties from challenging any changes to the Project, as defined in Paragraph A, supra. 4. No Assignment or Transfer of Claims. The Parties represent and warrant that they have not assigned or transferred any of the Claims released hereunder. 5. Waiver of Civil Code Section 1542. PETITIONER ACKNOWLEDGES THAT ITS LEGAL COUNSEL HAS ADVISED IT OF, AND THAT IT IS FAMILIAR WITH, THE PROVISIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES AS FOLLOWS: IRV #6571 v2 -6- • • - "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." Petitioner, being aware of this Code section, hereby expressly waives any rights it may have thereunder. Petitioner acknowledges that it may hereafter discover facts other than or in addition to facts it now knows or believes to exist, and it is Petitioner's intention nonetheless to forever settle, compromise, and release all Claims against Respondent and Real Party in Interest asserted in or arising from the Lawsuit, including any appeals therefrom. 6. Survival. Each of the covenants and agreements contained herein shall survive the delivery of documents and consideration. The parties recognize and acknowledge that this Agreement is not intended to and shall not release any of the parties from any liability or damages, if any, caused by or arising out of the failure of any executory provisions of this Agreement, including representations and warranties, all of which will survive and remain enforceable, or the failure or refusal to perform any or all of the acts required on their respective behalf to be done in accordance with the terms and conditions of this Agreement. IRV #6571 v2 -7- • 7. Successors and Assigns. This Agreement shall be binding upon any and all of the administrators, executors, successors, trustors, beneficiaries and assigns of each of the parties without regard to the time at which said persons first assumed such status. 8. Sole Agreement. This Agreement represents the sole and entire agreement between the parties and supersedes all prior agreements, negotiations and discussions between the parties and/or their respective counsel with respect to the subject matters covered. Each party represents and warrants to the other that, in entering into this Agreement, it is not relying upon any statement or representation not set forth in this Agreement. 9. Amendment or Modification. Any amendment or modification to this Agreement must be in writing signed by duly authorized representatives of the parties and stating the intent of the parties to amend or modify this Agreement. • 10. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original. 11. Further Documents. The parties shall execute and deliver all documents and perform all further acts that may reasonably be necessary to effectuate the provisions and purpose of this Agreement. IRV #6571 v2 -8- i • 12. Advice of Counsel. The parties acknowledge that they have been represented in the negotiations for and in the performance of this Agreement by counsel of their own choice; that they have read this Agreement; that they have had this Agreement fully explained to them by such counsel or have had such opportunity; and that they are fully aware of the contents of this Agreement and of its legal effect. 13. Confidentiality. The parties to this Agreement and their counsel agree to maintain the confidentiality of its terms to the extent allowed by law. Notwithstanding the foregoing, the parties may issue a joint press release stating that a settlement has been reached. Nothing in this provision shall bar any party from making any disclosure required by law. 14. Choice of Law. This Agreement shall be construed and enforced in accordance with California Law. 15. Construction. The Agreement shall not be construed as if drafted by only one party, but shall be construed as if drafted by all parties. 16. Authority. Each party represents to the others that it has the right to enter into this Agreement, and that it is not violating the terms or conditions of any other agreement to which it is a party or by which it is bound by entering into this Agreement. Petitioner and Respondent represent that they will obtain the approvals of their respective City Councils to this Agreement. IRV #6571 v2 -9- • • It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties do have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 19, 2000. DATED: June _ , 2000 THE CITY OF LOS ALAMITOS By: Charles E. Sylvia Its: Mayor DATED: June _ , 2000 ( C (1 THE CITY O ' S :! ACH By: Patricia E. Campbell Its: Mayor DATED: June , 2000 _ BIXBY RANCH COMPANY By: Its: IRV #6571 v2 _10_ ^i + • IP APPROVED AS TO FORM: BURKE, WILLIAMS & SORENSEN LLP BRYAN C. LEROY DATED: June , 2000 By Bryan C. LeRoy Attorneys for Petitioner The City of Los Alamitos RICHARDS, WATSON & GERSHON QUINN M. BARROW STEVEN H. KAUFMANN CRAIG A. STEELE DATED: June _ , 2000 By ° O. 0 Quinn M. Barrow Attorneys for Respondent The City of Seal Beach O'MELVENY & MYERS LLP MICHAEL G. YODER TODD A. GREEN DATED: June , 2000 By Todd A. Green Attorneys for Real Party in Interest Bixby Ranch Company IRV #6571 v2 -11- • SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE (the "Agreement ") is entered into as of June 9, 2000, by and between CENTURY NATIONAL PROPERTIES, INC. and THE ROSSMOOR HOMEOWNERS ASSOCIATION (collectively "These Petitioners "), on the one hand, and THE CITY OF SEAL BEACH ( "Respondent ") and BIXBY RANCH COMPANY ( "Real Party in Interest "), on the other hand, with reference to the following facts: RECITALS A. On December 23, 1998, These Petitioners, together with the City of Los Alamitos (collectively, "Petitioners ") filed a Petition for Writ of Mandate and Complaint for Declaratory Relief (the "Complaint ") against Respondent and Real Party in Interest in the Superior Court of the State of California, County of Orange, Case No. N803636 (the "Lawsuit "). The Complaint alleged that the Environmental Impact Report ( "EIR ") for a mixed -use development of a 218 -acre parcel owned by Real Party in Interest, located within the City of Seal Beach, and known as the Bixby Old Ranch Towne Center Project (the "Project ") did not comply with the California Environmental Quality Act, California Public Resources Code section 21000 et seq. ( "CEQA "). For purposes of this Agreement, the "Project" shall refer to and mean the project as approved by the Seal Beach City Council on November 23, 1998, and as modified by the Seal Beach City Council on August 23, 1999. B. On June 18, 1999, the Superior Court, Judge William McDonald �.� presiding, entered an Order Granting Petition for Peremptory Writ of Mandate. NBI:479000 1 • • C. On August 3, 1999, the Clerk of the Superior Court issued a Peremptory Writ of Mandate pursuant to the Court's June 18 Order and also entered Judgment. The Court retained jurisdiction over the return of the writ to determine whether Respondent had taken those actions necessary to comply with the Superior Court's Order. D. On August 25, 1999, Respondent filed its Return to Peremptory Writ of Mandate and Request for Discharge of the Writ (the "Return "), describing the steps it had taken to address and correct the deficiencies that the Superior Court had identified in its June 18 Order and the documentation of those steps (the "Revised EIR "). E. On September 13, 1999, Petitioners filed an opposition to the Return. F. On September 30, 1999, the Superior Court entered its minute order discharging the writ of mandate, finding that the Revised EIR complied with the Writ of Mandate and further finding that the Revised EIR did not include new significant information or rejection of mitigation measures. G. On October 1, 1999, Petitioners filed a Notice of Appeal, appealing the Judgment, the order discharging the Writ of Mandate, and all orders and rulings of the Superior Court in the matter. The Appeal was assigned Case No. G026148. H. On November 9, 1999, Petitioners filed a motion for attorneys' fees. I. On January 3, 2000, the Superior Court entered an order denying Petitioners' motion for attorneys' fees. NB 1.479000 1 2 • • J. On January 28, 2000, Petitioners filed a Notice of Appeal, appealing the Superior Court order denying their motion for attorneys' fees. This Appeal was assigned Case No. G026734. K. The parties have agreed to resolve all claims arising out of this litigation. Respondent and Real Party in Interest have agreed to waive any claim that they may have against These Petitioners for costs and fees, and These Petitioners have agreed to dismiss both of their appeals with prejudice. NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained herein, and further good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, These Petitioners, Respondent and Real Party in Interest agree as follows: AGREEMENT 1. Waiver of Costs and Fees. Except as provided in paragraph 5 , infra, the Parties to this Agreement hereby waive any claims that they may have against each other for costs and fees arising out of this litigation. 2. Dismissal of Appeals. Upon execution of this Agreement, These Petitioners shall execute and deliver to Real Party in Interest for filing an Abandonment and Request for Dismissal of Appeal in Case No. G026148 and also in Case No. G026734. NB1:479000 1 3 • 3. Mutual Releases. a. Except as provided in Paragraph 5, These Petitioners on behalf of themselves and their successors, assigns, employees, agents, representatives and all persons acting by, through, under, or in concert with any of them, hereby release and forever discharge Respondent, its City Council and Council Members, and Real Party in Interest, and each of them, together with their respective successors, assigns, employees, agents, representatives, partners, shareholders, officers, directors and affiliated corporations, and all persons acting by, through, under, or in concert with any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, hidden or concealed, fixed or contingent, that These Petitioners now have or had against Respondent or Real Party in Interest, or either of them, from the beginning of time until the date hereof, asserted in or arising from the Lawsuit (collectively referred to as the "CEQA Claims "), including any appeals therefrom. b. Except as provided in Paragraph 5, Respondent and Real Party in Interest on behalf of themselves and respective City Council and Council Members, successors, assigns, employees, agents, representatives and all persons acting by, through, under, or in concert with any of them, hereby release and forever discharge These Petitioners, their respective successors, assigns, employees, agents, representatives, partners, shareholders, officers, directors and affiliated corporations, and all persons acting by, through, under, or in concert with any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, NB 1:479000.1 4 • • hidden or concealed, fixed or contingent, that Respondent and/or Real Party in Interest have, may have, or had against These Petitioners, or either of them, from the beginning of time until the date hereof, arising from the filing or prosecution of the Lawsuit (collectively referred to as the "Claims "), including any appeals therefrom. c. The foregoing releases shall not be construed to bar the Parties from challenging any changes to the Project, as defined in Paragraph A, supra. 4. No Assignment or Transfer of Claims. The Parties represent and warrant that they have not assigned or transferred any of the CEQA Claims released hereunder. 5. Survival. Each of the covenants and agreements contained herein shall survive the delivery of documents and consideration. The parties recognize and acknowledge that this Agreement is not intended to and shall not release any of the parties from any liability or damages, if any, caused by or arising out of the failure of any executory provisions of this Agreement, including representations and warranties, all of which will survive and remain enforceable, or the failure or refusal to perform any or all of the acts required on their respective behalf to be done in accordance with the terms and conditions of this Agreement. 6. Successors and Assigns. This Agreement shall be binding upon any and all of the administrators, executors, successors, trustors, beneficiaries and assigns of each of the parties without regard to the time at which said persons first assumed such status. NBI:479000.1 5 • • 7. Sole Agreement. This Agreement represents the sole and entire agreement between the parties and supersedes all prior agreements, negotiations and discussions between the parties and/or their respective counsel with respect to the subject matters covered. Each party represents and warrants to the other that, in entering into this Agreement, it is not relying upon any statement or representation not set forth in this Agreement. 8. Amendment or Modification. Any amendment or modification to this Agreement must be in writing signed by duly authorized representatives of the parties and stating the intent of the parties to amend or modify this Agreement. 9. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original. 10. Further Documents. The parties shall execute and deliver all documents and perform all further acts that may reasonably be necessary to effectuate the provisions and purpose of this Agreement. 11. Advice of Counsel. The parties acknowledge that they have been represented in the negotiations for and in the performance of this Agreement by counsel of their own choice; that they have read this Agreement; that they have had this Agreement fully explained to them by such counsel or have had such opportunity; and that they are fully aware of the contents of this Agreement and of its legal effect. NB 1:479000 1 6 • • 12. Confidentiality. The parties to this Agreement and their counsel agree to maintain the confidentiality of its terms. Notwithstanding the foregoing, the parties may issue a joint press release stating that a settlement has been reached. Nothing in this provision shall bar any party from making any disclosure required by law. 13. Choice of Law. This Agreement shall be construed and enforced in accordance with California Law. 14. Construction. The Agreement shall not be construed as if drafted by only one party, but shall be construed as if drafted by all parties. 15. Authority. Each party represents to the others that it has the right to enter into this Agreement, and that it is not violating the terms or conditions of any other agreement to which it is a party or by which it is bound by entering into this Agreement. Respondent represents that it will obtain the approval of its City Council to this Agreement. It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties do have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed. NB1:479000.1 7 • • IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 9, 2000. DATED: June 2- 2000 C ' . A ' • • :J:010'," TIES, INC. B '_ Its: n.S/ DATED: June 33 2000 ROSSIVOR HO il • WNERS ASSOCIATION By: ((�� Its: ('n4 - -!,6, DATED: June , 2000 THE CITY OF SEAL BEACH By: Its: DATED: June , 2000 BIXBY RANCH COMPANY By: Its: NB I :479000 1 8 • • IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 9, 2000. DATED: June , 2000 CENTURY NATIONAL PROPERTIES, INC. By: Its: DATED: June 2000 ROSSMOOR HOMEOWNERS ASSOCIATION By: Its: DATED: June 2000 THE CITY OF SEAL BEACH By: Its: DATED: June 16 , 2000 . BIXBY RANCH COMPANY By: Jeannette L. Christensen Its: Vice President NB 1:479000.1 8 • • IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 9, 2000. DATED: June _, 2000 CENTURY NATIONAL PROPERTIES, INC. By: Its: DATED: June _, 2000 ROSSMOOR HOMEOWNERS ASSOCIATION By: Its: DATED: June 2000 \ A - C THE ITY OF SE BEACH By: Patricia E. Campbell Its: Mayor DATED: June , 2000 BIXBY RANCH COMPANY . By: Its: NB 1:479000 1 8 '"`' • • • APPROVED AS TO FORM: CALDWELL, LESLIE, NEWCOMBE & PETIT MARY NEWCOMBE DATED: June _ , 2000 By Mary Newcombe Attorneys for Petitioners Century National Properties, Inc. and Rossmoor Homeowners Association RICHARDS, WATSON & GERSHON QUINN M. BARROW STEVEN H. KAUFMANN CRAIG A. STEELE DATED: June , 2000 By V1-410.■ O e/ ' ■ 64440 `4 1 r . -Quinn M. Barrow Attorneys for Respondent The City of Seal Beach O'MELVENY & MYERS LLP MICHAEL G. YODER TODD A. GREEN DATED: June , 2000 By Todd A. Green Attorneys for Real Party in Interest • Bixby Ranch Company NB I :479000.1 9 • • • APPROVED AS TO FORM: CALDWELL, LESLIE, NEWCOMBE & PETIT MARY NEWCOMBE DATED: June 23, 2000 By t Newcombe Attorneys for Peti • : ners Century National Properties, Inc. and Rossmoor Homeowners Association RICHARDS, WATSON & GERSHON QUINN M. BARROW STEVEN H. KAUFMANN CRAIG A. STEELE DATED: June , 2000 By 9 11144. 6 1 /1 ) Quinn M. Barrow Attorneys for Respondent The City of Seal Beach O'MELVENY & MYERS LLP MICHAEL G. YODER TODD A. GREEN DATED: June , 2000 By Todd A. Green Attorneys for Real Party in Interest Bixby Ranch Company NBl 479000.1 9 • • APPROVED AS TO FORM: CALDWELL, LESLIE, NEWCOMBE & PETIT MARY NEWCOMBE DATED: June , 2000 By Mary Newcombe Attorneys for Petitioners Century National Properties, Inc. and Rossmoor Homeowners Association RICHARDS, WATSON & GERSHON QUINN M. BARROW STEVEN H. KAUFMANN CRAIG A. STEELE DATED: June , 2000 By Quinn M. Barrow Attorneys for Respondent The City of Seal Beach O'MELVENY & MYERS LLP MICHAEL G. YODER TODD A. GREEN DATED: June /7, 2000 By "7:aGL /�,...ses,,_ Todd A. Green Attorneys for Real Party in Interest Bixby Ranch Company NB 1:479000.1 9 y o.cd, °a'W • • SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE (the "Agreement ") is entered into as of June 19, 2000, by and between THE CITY OF LOS ALAMITOS ( "Petitioner "), on the one hand, and THE •CITY OF SEAL BEACH ( "Respondent ") and BIXBY RANCH COMPANY ( "Real Party in Interest'), on the other hand, with reference to the following facts: RECITALS A. On December 23, 1998, Petitioner, together with the Rossmoor Homeowners Association and Century National Properties, Inc. (collectively, "Petitioners ") filed a Petition for Writ of Mandate and Complaint for Declaratory Relief (the "Complaint") against Respondent and Real Party in Interest in the Superior Court of the State of California, County of Orange, Case No. N803636 (the "Lawsuit"). The Complaint alleged that the Environmental Impact Report ( "EIR ") for a mixed -use development of a 218 acre parcel owned by Real Party in Interest, located within the City of Seal Beach, and known as the Bixby Old Ranch Towne Center Project (the "Project") did not comply with the California Environmental Quality Act, California Public Resources Code section 21000 et seq. ( "CEQA "). For purposes of this Agreement, the Project shall refer to and mean the Project as approved by the Seal Beach City Council on November 23, 1998, and as modified by the Seal Beach City Council on August 23, 1999. B. On June 18, 1999, the Superior Court, Judge William McDonald presiding, entered an Order Granting Petition for Peremptory Writ of Mandate. IRV #6571 v2 • • C. On August 3, 1999, the Clerk of the Superior Court issued a Peremptory Writ of Mandate pursuant to the Court's June 18 Order and also entered Judgment. The Court retained jurisdiction over the return of the writ to determine whether Respondent had taken those actions necessary to comply with the Superior Court's Order. D. On August 25, 1999, Respondent filed its Return to Peremptory Writ of Mandate and Request for Discharge of the Writ (the "Return"), describing the steps it had taken to address and correct the deficiencies that the Superior Court had identified in its June 18 Order and the documentation of those steps (the "Revised EIR "). E. On September 13, 1999, Petitioners filed an opposition to the Return. F. On September 30, 1999, the Superior Court entered its minute order discharging the writ of mandate, finding that the Revised EIR complied with the Writ of Mandate and further finding that the Revised EIR did not include new significant information or rejection of mitigation measures. G. On October 1, 1999, Petitioners filed a Notice of Appeal, appealing the Judgment, the order discharging the Writ of Mandate, and all orders and rulings of the Superior Court in the matter. The Appeal was assigned Case No. G026148. H. On November 9, 1999, Petitioners filed a motion for attorneys' fees. I. On January 3, 2000, the Superior Court entered an order denying Petitioners' motion for attorneys' fees. IRV #6571 v2 -2- • • J. On January 28, 2000, Petitioners filed a Notice of Appeal, appealing the Superior Court order denying their motion for attorneys' fees. This Appeal was assigned Case No. G026734. K. The parties have agreed to resolve all claims arising out of this litigation. Real Party in Interest has agreed to make a payment to Petitioner as more fully described in paragraph 1 below, and Petitioner has agreed to dismiss both of its appeals with prejudice. NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained herein, and further good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Petitioner, Respondent and Real Party in Interest agree as follows: AGREEMENT 1. Payment to Petitioner. (a) Real Party in Interest shall pay to Petitioner the sum of Two Hundred Seventy Five Thousand Dollars ($275,000.00). Alternatively, at Petitioner's election, Real Party in Interest shall perform construction work on street medians within the City of Los Alamitos in conjunction with and at the same unit cost as other similar Project - related construction activities, in which case Real Party in Interest shall apply a credit of Two Hundred Seventy Five Thousand Dollars ($275,000.00) ( "in lieu construction ") and Petitioner shall pay to Real Party in Interest all excess costs above said amount related to such construction in the City of Los Alamitos. Petitioner shall make its election as to the form of payment in writing, on or before August 1, 2000. If payment is to be made in money, such payment shall be made on or before August 15, 2000. IRV #6571 v2 -3- • . (b) Petitioner and Real Party in Interest acknowledge and agree that said payment or in lieu construction shall be in full satisfaction of any "fair share" payments owing to Petitioner by Real Party in Interest pursuant to the Final EIR for the Project. Other than the foregoing, there shall be no payments of any kind to Petitioner from either Respondent or Real Party in Interest in connection with the Project whether pursuant to the Final EIR or on any other basis whatsoever. (c) In the event that Petitioner elects to receive in lieu construction as satisfaction pursuant to paragraph (a) above: (i) the timing of such construction shall be at Real Party in Interest's discretion and shall be coordinated with other Project - related construction activities, (ii) on or before August 1, 2000, Petitioner and Real Party in Interest shall agree as to the scope and design of such work, the costs of such work, and the terms of payment for such work, (iii) all costs for such construction in the City of Los Alamitos, including without limitation any amount owed by Petitioner above the in -lieu construction amount, shall be equivalent to those unit costs for similar construction of medians related to the Project in the City of Seal Beach, and (iv) Real Party in Interest shall keep true and accurate books and records in regards to the construction of the medians in the City of Los Alamitos, and medians otherwise related to the Project. Petitioner shall have the right at the completion of such construction at its own expense to audit said books and records of Real Party in Interest solely to verify the cost of construction of the medians. Petitioner's right to audit is limited to the construction of the medians and under no circumstances shall Petitioner have the right to examine records belonging to Real Party in Interest relating to other business or construction. IRV #6571 v2 -4- . • • 2. Dismissal of Appeals. Upon execution of this Agreement, Petitioner shall execute and deliver to Real Party in Interest for filing an Abandonment and Request for Dismissal of Appeal in Case No. G026148 and also in Case No. G026734. 3. Mutual Releases. (a) Petitioner on behalf of itself and its City Council, Council Members, officers, employees, agents, representatives, successors, assigns and all persons acting by, through, under, or in concert with any of them, hereby releases and forever discharges Respondent, its City Council and Council Members, and Real Party in Interest, and each of them, together with their respective successors, assigns, employees, agents, representatives, partners, shareholders, officers, directors and affiliated corporations, and all persons acting by, through, under, or in concert with any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, hidden or concealed, fixed or contingent (collectively referred to as "Claims "), that Petitioner now has or had against Respondent or Real Party in Interest, or either of them, from the beginning of time until the date hereof, asserted in or arising from the Lawsuit, including any appeals therefrom. (b) Respondent and Real Party in Interest on behalf of themselves and respective City Council and Council Members, officers, successors, assigns, employees, agents, representatives and all persons acting by, through, under or in concert with any of them, hereby release and forever discharge Petitioner, its City Council, Council Members, officers, successors, assigns, employees, agents, representatives and all persons acting by, through, under, or in IRV #6571 v2 -5- • • concert with any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, leases, promises, liabilities, claims, demands, damages, losses, costs, attorneys' fees, or expenses of any kind whatsoever, known or unknown, hidden or concealed, fixed or contingent (collectively referred to as "Claims "), that Respondent and/or Real Party in Interest have, may have, or had against Petitioner, from the beginning of time until the date hereof, arising from the filing or prosecution of the Lawsuit, including any appeals therefrom. (c) It is the express intention of the parties hereto that the mutual releases provided in paragraphs (a) and (b) of this section shall include, without limitation, the waiver of any claims that the parties may have against each other for costs and fees arising out of the Lawsuit and any appeals therefrom, with exception as provided in paragraph 6. (d) The foregoing releases shall not be construed to bar the Parties from challenging any changes to the Project, as defined in Paragraph A, supra. 4. No Assignment or Transfer of Claims. The Parties represent and warrant that they have not assigned or transferred any of the Claims released hereunder. 5. Waiver of Civil Code Section 1542. PETITIONER ACKNOWLEDGES THAT ITS LEGAL COUNSEL HAS ADVISED IT OF, AND THAT IT IS FAMILIAR WITH, THE PROVISIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH PROVIDES AS FOLLOWS: IRV #6571 v2 -6- • • "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." Petitioner, being aware of this Code section, hereby expressly waives any rights it may have thereunder. Petitioner acknowledges that it may hereafter discover facts other than or in addition to facts it now knows or believes to exist, and it is Petitioner's intention nonetheless to forever settle, compromise, and release all Claims against Respondent and Real Party in Interest asserted in or arising from the Lawsuit, including any appeals therefrom. 6. Survival. Each of the covenants and agreements contained herein shall survive the delivery of documents and consideration. The parties recognize and acknowledge that this Agreement is not intended to and shall not release any of the parties from any liability or damages, if any, caused by or arising out of the failure of any executory provisions of this Agreement, including representations and warranties, all of which will survive and remain enforceable, or the failure or refusal to perform any or all of the acts required on their respective behalf to be done in accordance with the terms and conditions of this Agreement. IRV #6571 v2 -7- 7. Successors and Assigns. This Agreement shall be binding upon any and all of the administrators, executors, successors, trustors, beneficiaries and assigns of each of the parties without regard to the time at which said persons first assumed such status. 8. Sole Agreement. This Agreement represents the sole and entire agreement between the parties and supersedes all prior agreements, negotiations and discussions between the parties and/or their respective counsel with respect to the subject matters covered. Each party represents and warrants to the other that, in entering into this Agreement, it is not relying upon any statement or representation not set forth in this Agreement. 9. Amendment or Modification. Any amendment or modification to this Agreement must be in writing signed by duly authorized representatives of the parties and stating the intent of the parties to amend or modify this Agreement. 10. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original. 11. Further Documents. The parties shall execute and deliver all documents and perform all further acts that may reasonably be necessary to effectuate the provisions and purpose of this Agreement. IRV #6571 v2 -8- 12. Advice of Counsel. The parties acknowledge that they have been represented in the negotiations for and in the performance of this Agreement by counsel of their own choice; that they have read this Agreement; that they have had this Agreement fully explained to them by such counsel or have had such opportunity; and that they are fully aware of the contents of this Agreement and of its legal effect. 13. Confidentiality. The parties to this Agreement and their counsel agree to maintain the confidentiality of its terms to the extent allowed by law. Notwithstanding the foregoing, the parties may issue a joint press release stating that a settlement has been reached. Nothing in this provision shall bar any party from making any disclosure required by law. 14. Choice of Law. This Agreement shall be construed and enforced in accordance with California Law. 15. Construction. The Agreement shall not be construed as if drafted by only one party, but shall be construed as if drafted by all parties. 16. Authority. Each party represents to the others that it has the right to enter into this Agreement, and that it is not violating the terms or conditions of any other agreement to which it is a party or by which it is bound by entering into this Agreement. Petitioner and Respondent represent that they will obtain the approvals of their respective City Councils to this Agreement. IRV #6571 v2 -9- . • 40 It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties do have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 19, 2000. DATED: June d, 2000 THE C OF . OS AL • OS By: Charles E. Syl a Its: Mayor DATED: June , 2000 THE CITY OF SEAL BEACH By: Its: DATED: June , 2000 BIXBY RANCH COMPANY By: Its: IRV #6571 v2 - 1 0_ • • It is further represented and agreed that the individuals signing this Agreement on behalf of the respective parties do have actual authority to execute this Agreement and, by doing so, bind the party on whose behalf this Agreement has been signed. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of June 19, 2000. DATED: June , 2000 THE CITY OF LOS ALAMITOS By: Charles E. Sylvia Its: Mayor DATED: June _, 2000 THE CITY OF SEAL BEACH By: Its: DATED: June 20, 2000 ail‘15141 BIXBY RANCH COMPANY B Ronald A. Bradshaw Its: senior vice President IRV #6571 v2 -10- J • f • 0 APPROVED AS TO FORM: BURKE, WILLIAMS & SORENSEN LLP BRYAN C. LEROY DATED: June 4r, 2000 By Bry C. LeRoy Attorneys for Petitioner The City of Los Alamitos RICHARDS, WATSON & GERSHON QUINN M. BARROW STEVEN H. KAUFMANN CRAIG A. STEELE DATED: June 2000 By /4 ' gi Quinn M. Barrow Attorneys for Respondent The City of Seal Beach O'MELVENY & MYERS LLP MICHAEL G. YODER TODD A. GREEN DATED: June ? J , 2000 By 7 . Todd A. Green Attorneys for Real Party in Interest Bixby Ranch Company 1RV #6571 v2 -11-