HomeMy WebLinkAboutBETTER NEIGHBORHOODS, INC. v. COSAINSURANCE NCI' RELIUIRED
WORK MAY PROCEED
CLERK OF COUNCIL.
(fl CONFIDENTIAL
A-2018-151
JUN 14 ?.018
SETTLEMENT AGREEMENT
N This Settlement Agreement ("Agreement"), dated for identification purposes only as of June 8,
1PVr&,41,5 2018, is entered into by, between and among the City of Santa Ana ("City"), the City Council of
the City of Santa Ana ("City Council"), Better Neighborhoods Inc. ("Petitioner" or `Better
Neighborhoods"), and Net Development Company, Inc. ("Net"), each of whom may hereinafter
be referred to individually as a "Party" or collectively as the "Parties."
I. RECITALS
A. Net has submitted an application to the City requesting certain entitlements to construct a
135 -room hotel, to be operated by Hampton Inn (the "Project") located at 2129 North
Main Street, Santa Ana, California (the "Property"). In connection with the
discretionary review of the entitlements for the Project, the City conducted an
environmental review under the California Environmental Quality Act (Pub. Resources
Code § 21000 et seg.: "CEQA").
B. On February 20, 2018, the City Council conducted first reading of an ordinance to
approve Amendment Application No. 2017-02 to change the zoning district of the Project
site from Professional (P) to Community Commercial -Museum District (C1 -MD).
Thereafter, on the same night, the City Council adopted two resolutions, one approving
Conditional Use Permit No. 2017-29, as conditioned, and the other approving Variance
No. 2017-07, as conditioned, to allow for, among other things, a reduction in off-street
parking for the proposed hotel use. In connection with the Project approvals, the City
prepared and adopted a Mitigated Negative Declaration pursuant to CEQA. The City
Council conducted a second reading of the zone change ordinance on March 20, 2018.
All of the foregoing approvals and actions by the City in connection with the Project are
referred to as the "Entitlements."
C. On March 21, 2018, Better Neighborhoods filed a Petition for Writ of Mandate in Orange
County Superior Court entitled Better Neighborhoods Inc. v. City of Santa Ana et al.
[Orange County Superior Court Case No. 30-2018-00980976-CU-WM-CXC] (the
"Litigation"). The Litigation named the City and City Council as respondents and also
named Net as a Real Party in Interest. Among other matters, the Litigation includes
claims by Petitioner alleging violations of CEQA based on the City's adoption of a
Mitigated Negative Declaration for the Project pursuant to CEQA and challenging the
Entitlements.
D. Beginning very early in the Litigation process, the Parties engaged in good faith
settlement negotiations in an effort to resolve the Litigation.
E. Based on those settlement negotiations, the Parties have agreed to use this Agreement to
achieve a full and complete resolution of all present and future claims that have been
asserted or that could be asserted by Better Neighborhoods in relation to the Project, the
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Entitlements, the Project's environmental review under CEQA or other laws, and the
Litigation.
II. TERMS
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by the
Parties, the Parties agree as follows:
A. Better Neighborhoods' Obligations.
Duty to Dismiss/Support Dismissal with Prejudice. Better Neighborhoods will
deliver to counsel for the Defendant a fully signed original of this Agreement and
an executed Stipulation and Request for Dismissal of Entire Action [Judicial
Council Form CIV -110] ("RFD") with prejudice of the Litigation in its entirety,
as to all respondents and real parties, at the same time that Defendant and Real
Party in hiterest deliver City Payment and Net Payment (as defined below) to
counsel for Better Neighborhoods.
2. Duty Not to Object or Disrupt Process for Project Implementation. Better
Neighborhoods, on behalf of itself, its current and future members, directors,
shareholders, officers, agents, successors, and assigns, shall not directly or
indirectly object to, oppose, delay, frustrate, or disrupt the full and complete
construction and operation of the Project in accordance with the Entitlements.
Better Neighborhoods shall not directly or indirectly encourage or fund others to
object to, oppose, delay, frustrate, or disrupt the full and complete construction
and operation of the Project in accordance with the Entitlements.
B. City of Santa Ana's Obligations.
1. Wa nding Signage. Without admitting any liability, and in consideration of the terms
of the Agreement, the City shall use reasonable efforts to install wayfinding signage
for the purpose of directing automobile drivers to public parking available within two
blocks of the Property.
2. Attorneys' Fees. Without admitting any liability, and in consideration of the terms of
the Agreement, on or before June 21, 2018 the City shall deliver to Petitioner's counsel
a check payable to The Law Office of Gurjit Singh Client Trust Account, in the amount
of Twenty -Five Thousand Dollars ($25,000.00) (the "City Payment") simultaneous to
the delivery of the RFD as outlined in Section IIAI of this Agreement. City is paying
the City Payment in connection with claims made by Petitioner for attorney's fees,
costs, and expenses in connection with Better Neighborhoods' challenge to the
Entitlements, the Litigation, and the negotiation and drafting of this agreement. The
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City Payment shall be delivered to Petitioner's counsel at the address set forth below
in the Notice provision.
C. Net Development Company's Obliatg ions.
Payment to Better Neighborhoods. Without admitting any liability, on or before
June 21, 2018, Net shall deliver to Petitioner's counsel a check payable to The
Law Office of Gurjit Singh Client Trust Account, in the amount of Twenty -Five
Thousand Dollars ($25,000.00) (the "Net Payment") simultaneous to the delivery
of the RFD as outlined in Section IIAI of this Agreement. Better Neighborhoods
may use the Net Payment at its sole discretion. The Net Payment shall be
delivered to Petitioner's counsel at the address set forth below in the Notice
provision.
D. Enforcement of Agreement. No action for breach of this Agreement shall be
brought or maintained until: (a) the non -breaching Party provides written notice to the
breaching Party which explains with particularity the nature of the claimed breach, and (b)
within thirty (30) days after mailing of said notice, the breaching Party fails to cure the
claimed breach or, in the case of a claimed breach which cannot be reasonably remedied
within a thirty (30) day period, the breaching Party fails to commence to cure the claimed
breach within such thirty (30) day period, and thereafter diligently complete the activities
reasonably necessary to remedy the claimed breach..
E. Parties Bound. This Agreement shall apply to and be binding upon the Parties and each
of them, and their current and future members, officials, officers, directors, agents,
trustees, successors, and assigns.
F. Limits. Except as expressly provided herein, this Agreement shall not be construed as
creating any right or benefit, substantive or procedural, enforceable at law or in equity, by
any third party against the City or any of its governmental agencies, departments,
political subdivisions or any other public entities other than those set forth herein.
{remainder of page is blank)
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G. Notices. Any notice or request required to be given to a Party under this Agreement shall
be given in writing, and may be personally delivered or may be delivered by either
Federal Express or UPS, with an adult signature required upon receipt, (but shall not be
delivered by U.S. mail) to the addresses below:
City of Santa Ana
Attn: City Attorney
City of Santa Ana
P.O. Box 1988
20 Civic Center Plaza, M-29
Santa Ana, CA 92702
Better Neighborhoods
Better Neighborhoods Inc.
17901 Von Karman Ave, Ste. 600
Irvine, CA 92614
Attn: J. Michael Goolsby
with copy to
Gurjit Singh, Esq.
399 N Garey Ave., Suite 215
Pomona, CA 91767
Net Development
Net Development Company, Inc.
Attn: Kevin Coleman
3130 Airway Avenue
Costa Mesa, CA 92626
with copy to
Hans Van Ligten
Rutan & Tucker LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Any address may be changed by delivering written notice to all Parties in accordance
with this notice provision.
H. Entire Agreement. The Parties acknowledge that this Agreement is signed and executed
without reliance upon any actual or implied promises, warranties or representations made
by any of the Parties or by any representative of any of the Parties, other than those which
are expressly contained within this Agreement. This Agreement includes all of the
Recitals above, inclusive of all definitions contained therein, all of which Recitals are
incorporated by reference herein as operative covenants and are specifically relied upon
by the Parties in executing this Agreement, and constitutes the entire agreement and
understanding among and between the Parties and supersedes any and all other
agreements whether oral or written between the Parties.
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I. Mutual General Releases.
Except as set forth in this Agreement, upon receipt of the City Payment and the Net
Payment, Better Neighborhoods releases the City and City Council, their members,
council members, commissioners, officers, employees, agents and attorneys from
any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions,
and/or causes of action that Better Neighborhoods had as of the Effective Date of
this Agreement (as defined in Section II.P., below) arising out of, or connected to,
the Litigation and the Project, whether known, unknown, or suspected.
2. Except as set forth in this Agreement, upon the receipt of the RFD, the City and
City Council release Better Neighborhoods and its directors, officers, agents and
attorneys from any and all claims, demands, liabilities, obligations, costs, expenses,
fees, actions, and/or causes of action that the City and City Council had as of the
Effective Date arising out of, or connected to, the Litigation and the Project,
whether known, unknown, or suspected.
3. Except as set forth in this Agreement, upon receipt of the RFD, Net releases Better
Neighborhoods and its directors, officers, agents and attorneys from any and all
claims, demands, liabilities, obligations, costs, expenses, fees, actions, and/or
causes of action that Net had as of the Effective Date arising out of, or connected
to, the Litigation and the Project, whether known, unknown, or suspected.
4. Except as set forth in this Agreement, upon receipt of the City Payment and the Net
Payment, Better Neighborhoods releases Net and its members, officers, agents and
attorneys from any and all claims, demands, liabilities, obligations, costs, expenses,
fees, actions, and/or causes of action that Better Neighborhoods had as of the
Effective Date arising out of, or connected to, the Litigation and the Project,
whether known, unknown, or suspected.
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J. California Civil Code Section 1542. Upon the Effective Date, each of the Parties has
read and has otherwise been informed of the meaning of Section 1542 of the California
Civil Code, and has consulted with its respective counsel, to the extent that any was
desired, and understands the provisions of Section 1542. Each of the Parties hereby
expressly waives the rights and benefits conferred upon it by the provisions of Section
1542 of the California Civil Code, which provides:
"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
THED�E�B+;TOR."
City's Initials
Net's Initials
Bitter Neighborhoods' Initials
K. Amendments and Modifications. This Agreement may only be amended or modified
through writing executed by all the Parties.
L. Settlement, No Admissions by Parties. Each of the Parties acknowledges that this
Agreement relates to the avoidance of litigation and the preclusion of actions described
above. Therefore, this Agreement is not to be treated or construed, at any time or in any
manner whatsoever, as an admission by any Party that any of the allegations in the
Litigation has merit.
M. Choice of Law and Choice of Forum. This Agreement shall be deemed to have been
executed and delivered within the State of California; the rights and obligations of the
Parties hereunder shall be governed, construed and enforced in accordance with the laws
of the State of California. The venue for any dispute arising from or related to this
Agreement, its performance, and its interpretation shall be the Superior Court of Orange
County,
N. Damages. The Parties agree (i) that the performance of the obligations of this Agreement
are paramount, (ii) that, in the event of a breach, monetary damages will provide
inadequate relief, and (iii) that each may seek equitable relief to enforce such obligations.
O. Authorized Signatory. Each Party represents and warrants to each other Party that its
signature to this Agreement has the authority to bind the Party, and this Agreement does
in fact bind the Party.
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California Civil Code Section 1542. Upon the Effective Date, each of the Parties has
read and has otherwise been informed of the meaning of Section 1542 of the California
Civil Code, and has consulted with its respective counsel, to the extent that any was
desired, and understands the provisions of Section 1542. Each of the Parties hereby
expressly waives the rights and benefits conferred upon it by the provisions of Section
1542 of the California Civil Code, which provides:
"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."
City'skih-di �� " Better Neighborhoods' Initials
Netts Tnitials
K. Amendments and Modifications. This Agreement may only be amended or modified
through writing executed by all the Parties.
L. Settlement, No Admissions by Parties. Each of the Parties aclmowledges that this
Agreement relates to the avoidance of litigation and the preclusion of actions described
above. Therefore, this Agreement is not to be treated or construed, at any time or in any
manner whatsoever, as an admission by any Party that any of the allegations in the
Litigation has merit.
M. Choice of Law and Choice of Forum. This Agreement shall be deemed to have been
executed and delivered within the State of California; the rights and obligations of the
Parties hereunder shall be governed, construed and enforced in accordance with the laws
of the State of California. The venue for any dispute arising from or related to this
Agreement, its performance, and its interpretation shall be the Superior Court of Orange
County.
N. Damages. The Parties agree (i) that the performance of the obligations of this Agreement
are paramount, (ii) that, in the event of a breach, monetary damages will provide
inadequate relief, and (iii) that each may seek equitable relief to enforce such obligations.
0. Authorized Signatory. Each Party represents and warrants to each other Party that its
signature to this Agreement has the authority to bind the Party, and this Agreement does
in fact bind the Party.
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P. Effective Date. This Agreement shall become effective immediately upon its complete
execution by the Parties (the "Effective Date"). Notwithstanding any other provision of
this Agreement, if the City Payment and the Net Payment are not received by close of
business on June 21, 2018, Better Neighborhoods may elect to terminate this Agreement
by giving written notice of termination, which termination shall be effective upon
delivery.
Q. Counterparts. This Agreement may be executed in counterparts and when so executed by
the Parties, shall become binding upon them and each such counterpart will be an original
document.
R. Representation by Counsel. The Parties acknowledge that (i) they have had the
opportunity to consult counsel in regard to this Agreement; (ii) they have read and
understand the Agreement and they are fully aware of its legal effect; and (iii) they are
entering into this Agreement knowingly and voluntarily, and based on each Party's own
judgment and not on any representations or promises made by any other Party, other than
those contained in this Agreement.
Each Party to Bear its Own Costs. Other than the payment of the Net Payment and the
City Payment, each Party shall bear its own costs of suit incurred in the Litigation and the
negotiation and drafting of this Agreement.
T. Time is of the Essence. Time is of the essence with respect to this Agreement.
U. Attorneys' Fees. If any action is commenced concerning this Agreement, including but
not limited to the performance of any of the Parties under this Agreement, the prevailing
party in such action shall be entitled to recover, in addition to such other relief as may be
granted, its reasonable costs and expenses, including without limitation reasonable
attorneys' fees and court costs together with attorneys' fees and court costs with respect
to any appeals, the enforcement of any judgment.
{signatures on next page)
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aria D. Huizar
Clprl o the C uncil
IN WITNESS WHEREOF, the Parties have executed this t. ement �greement.
(0, 151/;VPd
Date
Attest:
City Clerk
Date
Date
CITY OF SANTA ANA, and
CITY COUNCIL FOR THE CITY
OF SANTA ANA
Raul odinez Il, City nager
for the City of Santa
Approved as to form:
LAURA ROSSINI, Senior Assistant
City Attorney for the City of
Approved as to form:
HA S V xnev
for Net Development Company Inc.
[Signatures Continue on Next Page]
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BETTER NEIGHBORHOODS INC.
June 11, 2018G�oe6y
Date PMichael Goolsby, Wesident aV0— —
Chairman of the Board
Better Neighborhoods Inc.
Approved as to form:
GURJIT SINGH,
Attorney for Better Neighborhoods Inc.
Settlement Agreement - BNI v Santa Ana - 6-8-18