SETTLEMENT AND MUTUAL RELEASE AGREEMENT

This Settlement and Mutual Release Agreement ("Agreement") is entered into as of June 8, 2004 ("Effective Date"), by and among AIRPORT WORKING GROUP OF ORANGE COUNTY, INC., a nonprofit corporation ("AWG"), and ORANGE COUNTY REGIONAL AIRPORT AUTHORITY, a Joint Powers Authority ("OCRAA"), on the one hand, (AWG and OCRAA are collectively referred to herein as "Plaintiffs"), and CITY OF IRVINE, CALIFORNIA, a municipal corporation ("Irvine"), CITY COUNCIL OF THE CITY OF IRVINE ("City Council"), and LARRY AGRAN, Mayor, City of Irvine ("Agran"),on the other hand (Irvine, City Council and Agran are collectively referred to herein as the "City"). Plaintiffs and the City are sometimes referred to in this Agreement collectively as "the Parties".

RECITALS

    1. On May 27, 2003, the City took the following actions to implement the "Orange County Great Park" as the reuse of the former United States Marine Corps Air Station El Toro ("USMCAS El Toro"):
      1. adopted City Resolution No. 03-60, certifying an Environmental Impact Report designated as State Clearinghouse No. 2002101020 ("EIR") and approving General Plan Amendment 47782-GA ("GPA") to redesignate land uses for USMCAS El Toro;
      2. approved City Resolution No. 03-61, setting forth the scope of work requirements for traffic analyses under a traffic mitigation funding program known as the "North Irvine Transportation Mitigation" Program ("NITM");
      3. approved City Resolution No. 03-62, making application to the Local Formation Commission of Orange County ("LAFCO") to annex to the City those portions of USMCAS El Toro not then within the City’s boundaries;
      4. introduced City Ordinance No. 03-18, pre-zoning and rezoning USMCAS El Toro consistent with the GPA;
      5. introduced City Ordinance No. 03-19, approving a form of Development Agreement to be entered into with purchasers of USMCAS El Toro; and
      6. introduced City Ordinance No. 03-20, adopting the NITM.

      On June 10, 2003, the City adopted City Ordinances Nos. 03-18, 03-19 and 03-20. (City Resolutions Nos. 03-60, 03-61 and 03-62, and City Ordinances 03-18, 03-19 and 03-20 are hereinafter collectively referred to as the "Great Park Plan").

    2. On June 27, 2003, Plaintiffs filed against the City, its City Council and Mayor (collectively, "Defendants") a "Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief" in the Orange County Superior Court, designated as Case No. 03CC08461, challenging the City’s approval of the Great Park Plan on the grounds that the EIR does not fully comply with the California Environmental Quality Act ("CEQA") (Cal. Pub. Res. Code §§ 21000 et seq.) (such action is hereinafter referred to as the "Irvine Action"). OCRAA was dismissed from the Irvine Action on August 20, 2003.
    3. On November 12, 2003, LAFCO approved LAFCO Resolution No. CA 03-15, approving the City’s application to annex USMCAS El Toro. On January 14, 2004, the annexation of USMCAS El Toro to the City became effective.
    4. On February 13, 2004, Plaintiffs filed a "Verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief" in the Orange County Superior Court, designated as Case No. 04CC00074, which named as defendants LAFCO and its Chair, Arlene Schaffer, and which named as Real Parties in Interest the City and its City Council (such action is hereinafter referred to as the "LAFCO Action"). In the LAFCO Action, Plaintiffs challenge the annexation of USMCAS El Toro to the City based on alleged violations of CEQA and other grounds.
    5. Plaintiffs and the City mutually desire to enter into this Agreement to achieve a full and complete resolution of all claims arising from or relating to the disputes between the Parties concerning the validity and sufficiency of the EIR and the Great Park Plan, and the development and implementation of the Great Park in accordance with the Great Park Plan, including without limitation the Irvine Action and the LAFCO Action ("the Actions").

NOW THEREFORE, in consideration of the facts recited above, and the covenants, conditions and promises set forth below, the Parties agree as follows:

AGREEMENT

    1. Recitals Incorporated. The foregoing Recitals are incorporated herein and made a part of this Agreement.
    2. City to Produce Study. City will produce a study that discusses any new information that is not contained in the EIR or otherwise in the Administrative Record prepared in the Irvine Action concerning the issue of hazardous substance contamination, including potential impacts and mitigation, but which is contained in the most recent versions (as of June 1, 2004) of the Draft Final Environmental Baseline Survey ("EBS"), the Draft Final Finding of Suitability to Transfer ("FOST"), and the Draft Final Finding of Suitability to Lease ("FOSL") relating to USMCAS El Toro ("Study"). The Study shall be prepared in accordance with, and subject to, the following provisions:
      1. The Study shall be an independent work product of the City undertaken solely as a requirement of this Agreement. The Parties mutually agree that the Study is not being undertaken either (a) as a condition to the approval or implementation of the Great Park Plan or any component thereof, or (b) in order to comply with CEQA or any other statute or law. The Parties further agree that none of the City resolutions, ordinances or actions comprising or implementing the Great Park Plan are dependent upon the preparation, sufficiency or validity of the Study.
      2. In preparing the Study, the City shall follow, to the extent applicable, the provisions of Sections 15164(a), (b), (c) and (e) of Title 14 of the California Code of Regulations, but the Study shall not be deemed to be an Addendum under CEQA or the State CEQA Guidelines, 14 Cal. Code Regs § 15000, et seq.
      3. The City shall develop a draft scope of work for the Study. The City shall transmit to counsel for Plaintiffs identified in Paragraph 23 below a copy of the draft scope of work for the Study. Within fourteen (14) days of receipt of the draft scope of work for the Study, Plaintiffs may submit to the City’s counsel identified in Paragraph 23 below advisory comments and suggested changes; in the event that Plaintiffs do not submit to the City’s counsel advisory comments or suggested changes within such fourteen (14) days, Plaintiffs shall be deemed to have waived their opportunity to comment upon the draft scope of work for the Study. The City shall consider any advisory comments or suggested changes to the draft scope of work for the Study, but shall not be required to accept any such comments or incorporate any such changes in the scope of work for the Study. The City shall provide to Plaintiffs’ counsel a copy of the final scope of work for the Study upon its completion.
      4. The City shall develop a draft Study in accordance with the final scope of work therefor. The City shall transmit to counsel for Plaintiffs identified in Paragraph 23 below a copy of the draft Study. Within fourteen (14) days of receipt of the draft Study, Plaintiffs may submit to the City’s counsel identified in Paragraph 23 below advisory comments and suggested changes; in the event that Plaintiffs do not submit to the City’s counsel advisory comments or suggested changes within such fourteen (14) days, Plaintiffs shall be deemed to have waived their opportunity to comment upon the draft Study. The City shall consider any advisory comments or suggested changes to the draft Study, but shall not be required to accept any such comments or incorporate any such changes in the Study. Upon completion, the City shall receive and file the final Study, and provide a copy of the final Study to Plaintiffs’ counsel.
      5. Plaintiffs and their respective officers and directors, and the public agency members of AWG and OCRAA, shall have no right to initiate any lawsuit or proceeding against, or otherwise challenge, the substance or merits of the draft or final scope of work for the Study, including but not limited to the nature, scope, methodology, assumptions, analyses or conclusions of the scope of work for the draft or final Study.
      6. Plaintiffs and their respective officers and directors, and the public agency members of AWG and OCRAA, shall have no right to initiate any lawsuit or proceeding against, or otherwise challenge, the substance or merits of the draft or final Study, including but not limited to the nature, scope, methodology, assumptions, analyses or conclusions of the draft or final Study.
      7. Plaintiffs may enforce the City’s obligations both to provide Plaintiffs’ counsel with copies of the draft and final scope of work for the Study, and the draft and final Study, and to consider any advisory comments or suggested changes timely submitted to the City’s counsel by Plaintiffs with regard to the Study or its scope of work (collectively, the "City Procedural Requirements"), by initiating and prosecuting a writ of mandate pursuant to Code of Civil Procedure Section 1085, et seq. ("Writ Enforcement"), in accordance with the following:
        1. Within fifteen (15) days following the date on which Plaintiffs allege that the City has failed to comply with a City Procedural Requirement, Plaintiffs shall serve upon the City’s counsel a written notice ("Enforcement Notice") setting forth in detail the nature of the City’s failure to comply with the specified City Procedural Requirement, and specifying the action(s) that Plaintiffs believe are required for the City to comply with the specified City Procedural Requirement. Failure to serve upon the City’s counsel the Enforcement Notice within such fifteen (15) day period shall be deemed to be a waiver by Plaintiffs of their right to object to the City’s compliance with such City Procedural Requirement.
        2. The City shall serve upon Plaintiffs’ counsel a written response to the Enforcement Notice ("Enforcement Response"). The City shall be deemed to have corrected any alleged violation of the City Procedural Requirement if the City takes the action specified in the Enforcement Notice within fifteen (15) days of the City’s receipt of the Enforcement Notice.
        3. In the event that the City fails to take the action specified by Plaintiffs in the Enforcement Notice, then, within fifteen (15) days of the date of the Enforcement Response, the City and Plaintiffs shall meet and confer in good faith to resolve the issues raised by Plaintiffs in the Enforcement Notice ("Good Faith Meeting").
        4. In the event that Plaintiffs believe that the issues raised in the Enforcement Notice have not been satisfactorily resolved by means of either the Enforcement Response or the Good Faith Meeting, Plaintiffs may, within fifteen (15) days of the date of the Good Faith Meeting, file and serve the Writ Enforcement. Failure to file and serve the Writ Enforcement within such fifteen (15) day period shall be deemed to be a waiver by Plaintiffs of their right to file and prosecute the Writ Enforcement or any other proceeding challenging the City’s compliance with any City Procedural Requirement.
    3. Dismissal of the Actions. Within one day of the Effective Date of this Agreement, Plaintiffs shall personally deliver to the City’s counsel identified in Paragraph 23 below properly filled out and executed Requests for Dismissal with Prejudice of the entire action for each of the Irvine Action and the LAFCO Action. The City shall promptly file such Requests for Dismissal with the Court upon payment to Plaintiffs of the funds set forth in Paragraph 5 below, and thereafter provide Plaintiffs’ counsel with copies of the filed Requests for Dismissal.
    4. Agreement Not to Bring Further Challenges. Plaintiffs, including AWG, OCRAA, their respective officers and directors, and the public entity members of AWG and/or OCRAA (collectively, the "Plaintiff Parties") shall not initiate, join, participate in, provide funding to or assist any third party in the initiation or participation in, any legal or administrative action or proceeding challenging the redevelopment and/or reuse of the USMCAS El Toro as the Great Park, including but not limited to: (a) any portion of the Great Park Plan or its implementation; (b) the approval of implementing land use and development entitlements (including but not limited to tentative and final subdivision maps, conditional use permits, lot line adjustments, design guidelines, utility agreements, and demolition, grading and building plans); (c) the development of the Great Park at USMCAS El Toro, so long as the planning, implementation and development are in general conformance with the Great Park Plan; or (d) any CEQA determinations with respect to any of the foregoing. In this regard:
      1. The parties intend for the covenants in this Paragraph 4 to be construed as broadly as possible for the benefit and protection of the City and the development of USMCAS El Toro in general conformance with the Great Park Plan.
      2. By way of illustration only, the following actions shall be deemed to be in general conformance with the Great Park Plan: (a) adoption of a redevelopment plan and redevelopment project area for the exercise of the powers of California redevelopment laws to facilitate the redevelopment of USMCAS El Toro; (b) modifications to development agreements approved by City Ordinance No. 031-19 that do not substantially alter the Great Park Plan (including but not limited to adjustments to the schedule and amount of fees to be paid by property owners, the schedule and sizing of public financing of infrastructure, and the imposition of contractual fees for removal of existing improvements and the provision of public infrastructure); (c) amendments to the City’s General Plan to allow public and private educational facilities on appropriately designated properties; (d) approval of actions to publicly finance public infrastructure (including but not limited to the formation of community facilities districts and assessment districts, and the issuance of bonds, notes and other evidences of indebtedness by the City or such districts); (e) the approval of a contract or contract with the Orange County Great Park Corporation or another entity for the development of all or part of the public infrastructure for the reuse of USMCAS El Toro; (f) modification of the Great Park Plan location of proposed police substation facilities; and (g) the approval of one or more contracts for the demolition and recycling of structures and physical improvements at USMCAS El Toro.
    5. Payment. Within five (5) calendar days of the Effective Date of this Agreement, City shall pay Fifty Thousand Dollars ($50,000) to AWG, by delivering a check in that amount to Plaintiffs’ counsel. The Parties waive any rights each may have to seek recovery of any and all fees and costs associated with the Actions, including but not limited to those associated with the preparation of the Administrative Record in the Actions.
    6. Plaintiffs’ Release of Claims. Plaintiffs, including AWG, OCRAA, their officers, and the public entity members of AWG and/or OCRAA and each of them, hereby release and forever discharge Defendants, and each of them, and each of their predecessors, successors, assigns, employees, officers, councilmembers, mayors, agents or attorneys from any and all claims, demands, causes of action, obligations, damages, injuries, attorneys’ fees, costs and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which the Plaintiffs ever had, now have, or may claim to have against Defendants (whether directly or indirectly), or any of them, by reason of any act or omission concerning any matter, event, incident, encounter, cause, or thing relating to or arising out of the EIR, the Great Park Plan, any of the City Resolutions or City Ordinances comprising the Great Park Plan, any action by LAFCO with respect to the annexation of USMCAS El Toro to the City, or any other actions or events which underlie and are the subject of the Actions, and any claims asserted or which could be or could have been asserted in the Actions.
    7. City’s Release of Claims. The City, including its officers, employees and representatives, hereby release and forever discharge Plaintiffs, and each of them, and each of their predecessors, successors, assigns, agents, employees, officers, councilmembers, mayors, agents or attorneys from any and all claims, demands, causes of action, obligations, damages, injuries, attorneys’ fees, costs, and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which the City ever had, now has, or may claim to have against Plaintiffs (whether directly or indirectly), or any of them, by reason of any act or omission concerning any matter, event, incident, encounter, cause, or thing relating to or arising out of the events which underlie and are the subject of the Actions, and any claims asserted or which could be or could have been asserted in the Actions.
    8. Discovery of Different or Additional Facts. The Parties, and each of them, acknowledge that they may later discover facts different from or in addition to those they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the releases set forth in this Agreement. The Parties expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts.
    9. Release of Unknown Claims. The releases set forth above are general releases of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in those releases and are intended to encompass all known and unknown, foreseen and unforeseen claims which the Plaintiffs and Defendants may have against each other, except for any claims which may arise from the terms of this Agreement.
    10. Waiver of Civil Code Section 1542. By releasing and forever discharging claims both known and unknown as hereinabove provided, the Parties, and each of them, expressly waive and relinquish all rights and benefits they may have under Section 1542 of the Civil Code of the State of California, which reads as follows:

      11. "[General Release -- Claims Extinguished.] 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."

    11. Responsibility for Attorneys' Fees, Costs, and Litigation Expenses in Action. Each of the Parties shall be wholly responsible for the payment of its respective attorneys' fees, costs, and litigation expenses incurred in the Actions.
    12. No Other Pending Actions. The Parties each represent that they have not filed any complaints or claims (other than the Actions referenced above) against each other with any local, state, or federal agency or court, and that they will not do so at any time hereafter with respect to the events which underlie and are the subject of the Actions, the claims which were asserted or which could be or could have been asserted in the Actions, or any claims arising out of the Actions.
    13. Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by the City or any affiliated person or entities, all of whom consistently have taken the position that they have no liability whatsoever to the Plaintiffs, or either of them.
    14. No Assignment of Claims. The Parties, and each of them, warrant that they have made no assignment, and will make no assignment, of any claim, cause of action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. Each Party hereby agrees to indemnify, defend, and hold harmless the other Parties as against any claim based on or arising out of any assignment, transfer, or sale in violation of the foregoing warranty.
    15. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors, and assigns.
    16. Knowing and Voluntary. The Parties each specifically represent that prior to signing this Agreement, they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties each represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment.
    17. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement.
    18. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled.
    19. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected.
    20. Construction. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts.
    21. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times.
    22. Governing Law & Venue. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. Venue for any action to enforce this Agreement shall be in the Orange County Superior Court, notwithstanding the provisions of Code of Civil Procedure section 394.
    23. Notices. All notices and other communications provided or permitted hereunder shall be made personal delivery or pre-paid first class mail, as follows:

      24. If to Plaintiffs’ Counsel: Barbara Lichman, Esq.
      Chevalier, Allen & Lichman, LLP
      695 Town Center Drive, Suite 700
      Costa Mesa, CA. 92626

      If to City’s Counsel: Joel Kuperberg
      Rutan & Tucker LLP
      611 Anton Blvd., Suite 1400
      Costa Mesa, CA. 92626

      All such notices and communications shall be deemed to have been given when delivered, if personally delivered; and two business days after being deposited in the United States mail, postage prepaid.

    24. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied, between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement.

IN WITNESS WHEREOF, the undersigned have executed this Settlement and Mutual Release Agreement on the dates set forth below.

AIRPORT WORKING GROUP OF ORANGE COUNTY, INC.

DATE: ____________________ By_______________________________________

President

 

By_______________________________________

Secretary

APPROVED AS TO FORM:

BY: _______________________

Barbara E. Lichman

CHEVALIER, ALLEN & LICHMAN, LLP

Attorneys for Airport Working Group of Orange County, Inc.

 

ORANGE COUNTY REGIONAL AIRPORT AUTHORITY

By_______________________________________

President

 

By_______________________________________

Secretary

APPROVED AS TO FORM:

BY: _______________________

Barbara E. Lichman

CHEVALIER, ALLEN & LICHMAN, LLP

Attorneys for Airport Working Group of Orange County, Inc.

 

CITY OF IRVINE, CALIFORNIA,

DATE: ____________________ By_______________________________________

Larry Agran, Mayor

ATTEST:

BY: _______________________ CITY COUNCIL OF THE CITY OF IRVINE

City Clerk

By_______________________________________

Larry Agran, Mayor

APPROVED AS TO FORM:

By_________________________ _________________________________________

Joel D. Kuperberg, City Attorney LARRY AGRAN, MAYOR, CITY OF IRVINE

RUTAN & TUCKER, LLP

Attorneys for City of Irvine