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Home My WebLink AboutSANTA ANA CITIZENS FOR RESPONSIBLE DEVELOPMENTJAI 0 7 2025 0, CAL) (0 P"'44 pvwwa (,sr-) SETTLEMENT AND RELEASE AGREEMENT A-2024-218 This Settlement and Release Agreement (the "Agreement") is entered into as of December 20, 2024 ("Effective Date"), by and between Santa Ana Citizens for Responsible Development, an unincorporated association of concerned residents ("Petitioner") and AC 2525 Main LLC, a Delaware limited liability corporation ("AC 2525"), and the City Council of the City of Santa Ana, and the City of Santa Ana, a Charter City and California municipal corporation (collectively, the "City"). Petitioner, AC 2525, and City are collectively referred to herein as the "Parties," or singularly as "Party." RECITALS A. WHEREAS, AC 2525 proposed the Magnolia at the Park in the City of Santa Ana, which includes the demolition of an existing office building and development of a 256-unit multi -family residential development with associated parking, located at 2525 N. Main Street, Santa Ana, California ("Property"). AC 2525 also proposed to create a second parcel to accommodate a 180-space surface level parking lot with proposed use by both AC 2525 and Discovery Science Center. B. WHEREAS, the City prepared a Draft Environmental Impact Report, Final Environmental Impact Report, and Clarifications to the Final Environmental Impact Report for the Magnolia at the Park Project on the Property (collectively the "Final EIR") On November 19, 2019, the City Council adopted Resolution 2019-107, certifying the Final EIR. C. WHEREAS, Petitioner filed its Petitioner for Peremptory Writ of Mandate/Mandamus and Complaint for Declaratory Relief (the "Petition") in Orange County Superior Court alleging that the City, City Council, and AC 2525 violated the California Environmental Quality Act ("CEQA"), as well as other state and local law rules and regulations. Petitioner filed an Amended Petition on May 26, 2020, challenging all project approvals received by the AC 2525 ("Amended Petition"). D. WHEREAS, on April 6, 2020, a referendum petition regarding the non- CEQA project approvals was certified to have sufficient signatures by the Orange County Registrar of Voters. Thereafter, on May 5, 2020, the Santa Ana City Council repealed the zoning approvals of the Magnolia at the Park Project. E. WHEREAS, AC 2525 challenged the acceptance of the referendum in a separate action, which was heard on September 22, 2020. The Orange County Superior Court issued its ruling on the writ petition on October 8, 2020, where it denied the petition and held the referendum filed on Monday, February 24, 2020, was timely. F. WHEREAS, the Parties entered into a conditional settlement agreement, dated March 26, 2021 ("Settlement Agreement") regarding the Amended Petition, wherein AC 2525 was to provide residential development plans on the Property to 4516 101 116050313.1 Petitioner for their review and approval before sending to the City for approval, in return Petitioner agreed that it would not object to the Project before the City. Petitioner and AC 2525 have each alleged that the other party has breached the Settlement Agreement. G, WHEREAS, in the interest of avoiding the risk and expense of further litigation, the Parties now wish to settle the remaining claims set forth in the Amended Petition and any claims (alleged or otherwise) regarding the Settlement Agreement, in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: AGREEMENT 1. No Reliance on the Final EIR. Upon full execution of this Agreement, AC 2525 and the City agree that they and their successors and assigns shall not rely on or use the certified Final EIR, or any portion thereof, for any future development of the Property. AC 2525, and its successors and assigns, further agree that it shall not object to any City action (whether administrative or legislative in nature), if initiated by the City, whereby it rescinds certification of the Final EIR. Nothing in this Agreement obligates the City'to rescind the Final EIR. 2. Settlement Payment. AC 2525, shall remit a payment of $15,000.00 to Petitioner by December 31, 2024 ("Settlement Payment"). The Settlement Payment shall be made to Petitioner's attorney of record, Newmeyer & Dillion LLP's client trust account. AC 2525 and Petitioner shall use their best efforts (including but not limited to providing any and all reasonably necessary documents) to ensure and facilitate timely payment of the Settlement Payment. 3. Dismissal of Petition. Within five (5) court days of full execution of this Agreement, and payment of the Settlement Payment, Petitioner shall take all appropriate steps to dismiss any and all outstanding claims related to the Petition and the Amended Petition, with prejudice. 3. Petitioner's Right to Challenge Proposed Protect. For clarification, Petitioners shall retain the right to object (via their respective public forums or otherwise) to any future development project that may be submitted to the City for approval by AC 2525, or its successors and assigns in the future on this Property. 4. General Release. (a) In consideration of the covenants and agreements set forth in this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, each Party releases and forever discharges each other Party and their respective predecessors, heirs, successors, and assigns, and their respective agents, 4516,101116050313.1 representatives, employees, public officials, beneficiaries, attorneys, servants, administrators, executors, and spouses, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, actions, agreements, costs, damages, actions, and causes of action arising out of or relating to the Petition and/or Amended Petition, and Settlement Agreement. (b) In consideration of the covenants and agreements set forth in this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, each Party and their respective successors and assigns release and forever discharge the each other Party and their respective predecessors, heirs, successors, and assigns, subsidiaries, affiliates, commonly controlled entities, companies, enterprises, ventures, projects, and their respective agents, representatives, public officials, employees, beneficiaries, attorneys, servants, administrators, executors, and spouses and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, actions, agreements, costs, damages, actions, and causes of action arising out of or relating to the Petition and/or Amended Petition, and Settlement Agreement. (c) Notwithstanding the foregoing, neither Party waives or releases, and this Agreement shall not affect, any claims or rights that may arise after the date of this Agreement, that arise out of or in connection with the interpretation of enforcement of the Agreement itself, or that (whether specified or not) cannot be waived as a matter of law pursuant to federal, state or local statute. 5. Successors And Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties, including current owners of the Property. Nothing in this Agreement is intended to confer upon any other person or persons any rights, benefits or remedies of any nature whatsoever. No person or entity shall be considered a third -party beneficiary of, or otherwise entitled to any rights or remedies under this Agreement, except with respect to the releases expressly provided for herein. 6. Entire Agreement. This Agreement shall constitute and contain the entire agreement and understanding concerning the subject matters addressed herein between the Parties, and supersedes and replaces all prior negotiations, the Settlement Agreement, and all agreements proposed or otherwise, whether written or oral, concerning the subject matter hereof. This is an integrated document. 7. Partial Invalidity. If any provision of this Agreement, or any application thereof, is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provision(s) or application(s) and to this end the provisions of this Agreement, and each of them, are declared to be severable. 8. Applicable Law/Cooperative Drafting. This Agreement has been executed and delivered within the State of California, and the rights and obligations of the 4516.101 / 160503133 Parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California, without regard to principles of conflicts of laws. All Parties shall be deemed to have participated in drafting this Agreement, and it shall not be construed against any of them. 9. Attorneys' Fees. Should any party to this Agreement commence any legal action or proceeding against the other, with regard to this Agreement, the prevailing party shall be entitled to reasonable expenses resulting from the legal action or proceeding, including, but not limited to, reasonable attorneys' fees and costs. 10. Further Assurances. Each Party agrees to execute such other and further documents and instruments as may be necessary or proper in order to consummate the transaction contemplated by this Agreement. 11. Execution In Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original and all of which shall constitute together one and the same instrument, and shall be effective upon execution by all the Parties. 12. Waiver of California Civil Code Section 1542. The Parties further acknowledge that they have been advised of the existence of Section 1542 of the California Civil Code, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. Notwithstanding such provision, this Agreement shall constitute a full release of all claims in accordance with its terms. The Parties knowingly and voluntarily waive and relinquish all rights and benefits afforded by the provisions of Section 1542, as well as any other statute, law, or rule of similar effect. 13. Amendment. This Agreement may not be amended, modified, or terminated, in whole or in part, except by an instrument in writing duly executed by the Parties or their authorized representatives. 14. Waiver, Any waiver of any term of this Agreement must be in writing and signed by the party waiving its rights hereunder. Conduct that is arguably or actually inconsistent with rights granted under this Agreement shall not constitute a waiver unless an intent to waive rights under this Agreement is clearly expressed in writing as required by this Section. The waiver of any term or condition contained in this Agreement shall not be construed as a waiver of any other term or condition contained in this Agreement. 4516.101116050313.1 15. Costs. The Parties agree to bear their own fees and costs in consideration of the settlement entered by this Agreement with respect to the Petition and/or Amended Petition, and Settlement Agreement. 16. Notices. Any notice appropriate or required to be given hereunder to the Parties shall be by email and U.S. Mail, or, in the alternative, at the option of the sender, by messenger and shall be to the following addresses, or such other address as is subsequently noticed in writing to the Parties. To: Santa Ana Citizens for Responsible Development Santa Ana Citizens for Responsible Development C/O Diane Fradkin 2402 Oakmont Avenue, Santa Ana, 92706 Email: Dianefradkin@hotmail.com with a copy to: Charles Krolikowski Greg Tross Newmeyer & Dillion, LLP 895 Dove Street, 2nd Floor Newport Beach, California 92660 Tel.: (949) 854-7000 _Charles. krolikowski ndlf. cam Greg. Tross nOf;com To: AC Main 2525, LLC AC Main 2525, LLC: CIO Ryan Ogulnick 240 Newport Center Drive Newport Beach, CA 92660 Tel.: 310-571-8227 Email: Ryan(@-vineyardsdc.com with a copy to: Susan Hori Manatt Phelps & Phillips, LLP 695 Town Center Drive, 141h FI. Costa Mesa, CA 92626 Tel.: 714-371-2528 shori __manatt.com Stephen Kaufman Kaufman Legal Group 777 S. Figueroa, Suite 4050 4516.101 1 16050313A Los Angeles, California 90017 Tel: (213) 452-6565 skaufmanakaufmanlegalgroup. com To: City of Santa Ana and City Council of Santa Ana City Clerk City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6954 with a copy to: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6954 Email: LRossini@santa-ana,orq 17. Time is of the Essence. The Parties hereby agree that time is of the essence in the performance of the Agreement. (SIGNATURES ON FOLLOWING PAGEI 4516,101 / 16050313.1 SIGNED: Santa Ana Citizens for Responsible Development Date: ��' �' , 2024 Santa Ana Citizens for Responsible Development, an unincorpor ted assgetati Rpf concerned TTents/, Name:(CCi? f rl�l�► Its: AC Main 2525, LLC Date: 2024 AC Main 2525, LLC, a Delaware limited liability company By: Name: Its: City of Santa Ana and City Council of Santa Ana Dale. 12024 City of Santa Ana, a public, entily and City COUnrril of Santa Ana, an elected governing body By: Name: Its: 4516.101 1 16050313.1 SIGNED: Santa Ana Citizens for Responsible Development Date: , 202S Santa Ana Citizens for Responsible Development, an unincorporated association of concerned residents By: Name: Its: AC Main 2525, LLC Date: 1/9 2025AC Main 2525, LLC, a Delaware limited liabil' o y By: Name: Ryan Ogulnick Its: Authorized Signature City of Santa Ana and City Council of Santa Ana Date: i ° 1 202 S City of Santa Ana, a public entity and City Council of Santa Ana, an elected governing body By: e Name: Alvaro -Nunez Its: `City Manager -� 4516.101 / 16050313.1