HomeMy WebLinkAbout2002-03-12; City Council; 16684; Settlement of Environmental LitigationCITY OF CARLSBAD - AGENDA BILL
AB# 16,684 DEPT. HD. TITLE:
MTG. 3-12-02 REPORT OF SETTLEMENT OF FEDERAL AND STATE
ENVIRONMENTAL LITIGATION
CITY ATTY.
nFDT CA CITY MGR.XED
RECOMMENDED ACTION:
Accept a report of the settlement of the federal lawsuit entitled, Canvons Network. et al. v.
Norton, et al. (Case No. 01cv0963-BTM ), and the related state lawsuit entitled, Sierra Club,
et al. v. Citv of Carlsbad. et al. (Case No. GIN 017085).
ITEM EXPLANATION:
In closed session on February 5, 2002, the City Council voted 3-2 (Finnila, Hall) to authorize
the settlement of the above lawsuits. The settlement agreement has recently been finalized
and is on file with the City Clerk's Office.
FISCAL IMPACT:
The financial terms of settlement are contained within the agreement. They are being
funded by the owner and the developer of the property that is the subject of the litigation. No
fiscal impact to the City is anticipated as a result of the settlement.
ENVIRONMENTAL REVIEW:
This action does not constitute a "project" under CEQA Guidelines 15378(a) and,
consequently, does not require environmental review.
EXHIBITS:
MEMORANDUM OF SETTLEMENT AGREEMENT
This Memorandum of Settlement Agreement (“Agreement”) is entered into as of
February 2,2002 by and among Real Estate Collateral Management Company (“RECM”),
Morrow Development, Inc. (”Morrow“), and Household Commercial of California, Inc.
(“Household”) (collectively “Owner Group“), on the one hand, and Sierra Club, Center for
Biological Diversity (“Center”) and Canyons Network (“Canyons”)(collectively ”Petitioners”),
on the other hand. The terms of the Agreement are as follows:
1. Greens Area. RECM shall plant in suitable soils in the Greens area of the
Villages of La Costa Project the following plant species: 355 Nuttals Scrub Oak, 200 Del Mar
Manzanita, and 300 Thread Leaved-Brodiaea Such planting such occur first in areas of
disturbed southern maritime chaparral and/or manufactured slopes. RECM shall provide funding
for monitoring/replacement as necessary with plants grown from onsite genetic material to ensure
at least 75% survivability relative to other like populations on-site of the foregoing plants for at
least five (5) years after the commencement of development activities in the Greens Area. For
purposes of this paragraph 1, the commencement of development activities shall mean mowing,
clearing, grubbing or grading on any portion of the Greens area.
2. Off-Site Wetlands. On or before February 20,2002, RECM shall convey fee title
to ten (10) acres of real property that includes functioning wetlands to any third party mutually
agreed to by Petitioners and RECM, which agreement shall not be unreasonably withheld. The
property is located generally east of Rancho Santa Fe Road between Camino de 10s Coches and
Calle Barcelona and shall be conveyed in its current condition for permanent open space
purposes, without any warranties or representations of any kind.
3. p. Subject to consent by the City of
Carlsbad, as indicated by the City’s signature below, a wildlife undercrossing shall be constructed
beneath the realigned Rancho Santa Fe Road. The undercrossing shall be a multi-plated arch
twelve (12) feet high and approximately twenty (20) feet wide at the base, and shall include a
light well with a metal safety grate in the area of the center divider of the road. If the City is
prevented, for any reason, from commencing or completing construction of the road, RECM shall
be relieved of its obligations under this paragraph 3 and the remainder of this agreement shall
remain in effect. The City’s agreement and consent to this paragraph 3 is subject to the
following: (1) The construction of the undercrossing shall not interfere with or restrict in any way
the City’s receipt of or right to receive state or federal funds for purposes of the construction of
the road, (2) the City shall be entitled to modify or close the undercrossing, if the City, in its
discretion, deems modification or closure to be necessary for public health and safety reasons; (3
the construction of the undercrossing shall not require further federal and/or state enviromnental
review; and (4) the construction of the undercrossing shall not unreasonably delay the current
construction schedule for the road.
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4. Reduction of DeveioDment. RECM shall reduce its approved development
project by 24 units in proposed neighborhood 3.3 in the Oaks area, and by 8 units in proposed
neighborhood 3.10 in the Oaks area, as indicated on the map attached hereto as Exhibit "A."
5. Pavment bv RECM. On or before February 20,2002, RECM shall pay Petitioners
the sum of Two Hundred Fifty Thousand Dollars ($250,000) for, among other things,
reimbursement of Petitioners' attorneys' fees and costs. After payment of fees and costs, the
remainder shall be paid to the National Wildlife Federation, or another 501(c)(3) corporation
designated by Petitioners, for the purpose of habitat restoration andor protection in the Carlsbad
area. Such funds shall not be used to initiate or prosecute litigation or otherwise challenge or in
any way limit any construction or development on the property comprising the Villages of La
Costa or the proposed realigned Rancho Santa Fe Road.
6. Dismissal and Satisfaction of Judment. Upon payment of the funds provided for
in paragraph 5, above, Petitioners shall dismiss, with prejudice, as to all parties and claims andor
causes of action, the action entitled Sierra Club v. Norton. et al., United States District Court
Case Number 01 CV 0963 BTM (POR) (the "Federal Action"), and the action entitled
Club v. Citv of Carlsbad, San Diego Superior Court Case Number GIN 017085 (the "State
Action"). All parties and signatories to this Agreement shall bear their own fees and costs with
respect to both the Federal Action and the State Action. RECM shall file a satisfaction of
judgment in the action entitled Real Estate Collateral Management Comuanv v. Canvons
Network, San Diego Superior Court Case GIN 013796 (the "State Court Trespass Action").
7. Releases. Upon payment of the funds provided for in paragraph 5 above, the
parties (and all of their respective parents, affiliates, successors and predecessors) and signatories
hereto shall execute mutual general releases of all claims and rights they may have against each
other arising out of or relating to allegations made in the Federal Action, the State Action, the
State Court Trespass Action, and any claims that have been or could be asserted in connection
with or in relation to the Habitat Conservation Plan, the Villages of La Costa property and any
development or use of such property, andor the Ranch Santa Fe Road project, including permits
issued by the Army Corps of Engineers under Section 404 of the Clean Water Act, permits issued
by the Regional Water Quality Control Board under Section 401 of the Clean Water Act, and
permits issued by the Federal Highway Administration, and any permits or rights pertaining to
the Villages of La Costa andor Rancho Santa Fe Road. Petitioners shall execute such releases
on behalf of Petitioners, their respective officers, directors, and authorized agents and
representatives.
8. Non-Disclosure. Because counsel for Owner Group has represented that RECM
is the sole owner of the Villages of La Costa property, no communication by Petitioners Center
for Biological Diversity and Canyons Network only, and their respective officers, directors, and
their authorized agents and representatives regarding the settlement reflected in this Agreement
or the Villages of La Costa project shall mention or refer to Household or any of its affiliated or
related entities, other than RECM. Petitioners Center and Canyons may refer to the "Villages of
L
La Costa” and its ‘‘Owners” and or the developer Morrow when referring to the settlement
reflected herein or the Villages of La Costa project. References to any entity (other than REO
that is affiliated or related to Household shall be removed from and/or shall not appear in
Petitioners Canyons’ and Center’s respective websites, newsletters, and other forms of public
communication.
9. Enforceability. The parties intend to prepare a superseding settlement agreement
incorporating the terms of this Agreement and addressing implementation issues. However, the
parties agree that this Agreement, unless superseded by a formal settlement agreement, shall be
binding and enforceable in the Federal Action and the State Action under Section 664.6 of the
California Code of Civil Procedure. The parties agree that Section 664.6 and the cases applying
Section 664.6 may be applied in the Federal Action. The parties further agree that the courts in
the Federal Action and the State Action shall retain jurisdiction for purposes of enforcing the
terms of this Agreement.
10. Consents. By signing this Agreement, the City of Carlsbad and the Department of
the Interior consent and agree to be bound by its terms. In the event the City of Carlsbad and the
Department of the Interior do not execute this Agreement, the Agreement shall still be binding on
the parties hereto.
11. m. Each person executing this Agreement represents and warrants that
he/she is authorized to enter into this Agreement on behalf of the party he/she purports to
represent (and/or in the case of Petitioners, their members). This Agreement may be executed in
counterparts. Fax signatures shall be sufficient to bind the parties.
AGREED AND ACCEPTED
CANYONS SIERRA CLUB, a nonprofit corporation
liability company
By:
Its:
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY, a Delaware corporation
By: By:
Its: Its: Vice President
David Hogan David A. Watts
[Signatures Continued On Next Page]
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La Costa" and its "Owners" and or the developer Morrow when referring to the settlement
that is affiliated or related to Household shall be removed from and/or shall not appear in
reflected herein or the Villages of La Costa project. References to any entity (other than RECM)
Petitioners Canyons' and Center's respective websites, newsletters, and other forms of public
communication.
9. Enforceability. The parties intend to prepare a superseding settlement agreement
incorporating the terms of this Agreement and addressing implementation issues. However, the
parties agree that this Agreement, unless superseded by a formal settlement agreement, shall he
binding and enforceable in the Federal Action and the State Action under Section 664.6 of the
California Code of Civil Procedure. The parties agree that Section 664.6 and the cases applying
Section 664.6 may he applied in the Federal Action. The parties further agree that the courts in
the Federal Action and the State Action shall retain jurisdiction for purposes of enforcing the
terms of this Agreement.
10. Consents. By signing this Agreement, the City of Carlsbad and the Department of
the Interior consent and agree to be bound by its terms. In the event the City of Carlsbad and the
Department of the Interior do not execute this Agreement, the Agreement shall still be binding on
the parties hereto.
1 1. Authority. Each person executing this Agreement represents and warrants that
he/she is authorized to enter into this Agreement on behalf of the party he/she purports to
represent (and/or in the case of Petitioners, their members). This Agreement may be executed in
counterparts. Fax signatures shall be sufficient to bind the parties.
AGREED AND ACCEPTED:
CANYONS NETWORK, a limited SIERRA CLUB, a nonprofit corporation
liability company
By: By:
One of its Directors Its:
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY, %Delaware corporation
Douglas Whiting
By:
David Hogan
Its: " Its: Vice President
[Signatures Continued On Next Page]
3
La Costa” and its “Owners” and or the developer Morrow when referring to the settlement
reflected herein or the Villages of La Costa project. References to any entity (other than RECM)
that is affiliated or related to Household shall be removed from and/or shall not appear in
Petitioners Canyons’ and Center’s respective websites, newsletters, and other forms of public
communication.
9. Enforceability. The parties intend to prepare a superseding settlement agreement
incorporating the terms of this Agreement and addressing implementation issues. However, the
parties agree that this Agreement, unless superseded by a formal settlement agreement, shall be
binding and enforceable in the Federal Action and the State Action under Section 664.6 of the
California Code of Civil Procedure. The parties agree that Section 664.6 and the cases applying
Section 664.6 may be applied in the Federal Action. The parties further agree that the courts in
the Federal Action and the State Action shall retain jurisdiction for purposes of enforcing the
terms of this Agreement.
10. Consents. By signing this Agreement, the City of Carlsbad and the Department of
the Interior consent and agree to be bound by its terms. In the event the City of Carlsbad and the
Department of the Interior do not execute this Agreement, the Agreement shall still be binding on
the parties hereto.
11. Authority. Each person executing this Agreement represents and warrants that
he/she is authorized to enter into this Agreement on behalf of the party he/she purports to
represent (and/or in the case of Petitioners, their members). This Agreement may be executed in
counterparts. Fax signatures shall be sufficient to bind the parties.
AGREED AND ACCEPTED:
CANYONS NETWORK, a limited SIERRA CLUB, a nonprofit corporation
liability company
By: By:
One of its Directors Its:
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY, a Delaware corporation
Douglas Whiting
By:
1ts:L)u)Arrl ~~LDLANO~ GOORD,.J~~~ Its: Vice President
David Hogan David A. Watts
[Signatures Continued On Next Page]
3
MOdOW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
aC CALIFORNIA, INC., a Delaware corporation
By: By: -
David A. Watts
Its: Pllksident Its: Vice President
THE CITY OF CARLSBAD THE UNITED STATES DEPARTMENT OF
By:
Its: Mayor
THE INTERIOR
Claude A. (“Bud”) Lewis By:
Its:
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRIPPS, LLP
Ronald W. Rouse
By:
By:
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD
COMMERCIAL OF CALIFORNIA, INC.
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano I11
By:
Attorneys for SIERRA CLUB, CENTER
FOR BIOLOGICAL DIVERSITY, and
CANYONS NETWORK
Everett L. DeLano I11
OFFICE OF THE CITY ATTORNEY
CITY OF CARLSBAD
Ronald R. Ball, City Attorney
Cindie K. McMahon, Deputy City Attorney
By:
Ronald R. Ball
Attorneys for THE CITY OF CARLSBAD
UNITED STATES DEPARTMENT OF JUSTICE
Charles R. Shockey
By:
Attorneys for GALE NORTON and THE UNITED
STATES DEPARTMENT OF THE INTERIOR
Charles R. Shockey
1714192.2 4
* MORROW DEVELOPMENT, INC.,
a California corporation
By:
Frederick M. Arbuckle
Its: President
Its: Mayor
APPROVED AS TO FORM:
KATTEN~CHINZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRIPPS, LLP
Ronald W. Rouse
By:
Stuart M. Richter
By:
Ronald W. Rouse
HOUSEHOLD COMMERCUL OF
CALIFORNIA, INC., a Delaware corporation
David A. Watts
Its: Vice President
THE UNITED STATES DEPARTMENT OF
THE INTERIOR
Its:
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano III
By:
Attorneys for SIERFU CLUB, CENTER
FOR BIOLOGICAL DIVERSITY, and
CANYONS NETWORK
Everett L. DeLano Dl
OFFICE OF THE CITY ATTORNEY
CITY OF CARLSBAD
Ronald R Ball. Ci& Attomev
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD By:
COMMERCIAL OF CALIFORNIA, INC.
~ ~~~ ~~
Attorneys for THE CITY OF CARLSBAD
UNITED STATES DEPARTMENT OF JUSTICE
Charles R Shockey
By:
Attorneys for GALE NORTON and THE UNITED
STATES DEPARTh4ENT OF THE INTERIOR
Charles R. Shockey
17141922 4
MORROW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
a California corporation CALIFORNIA, INC., a Delaware corporation
By: By:
Frederick M. Arbuckle David A. Watts
Its: President Its: Vice President
THE CITY OF CARLSBAD THE UNITED STATES DEPARTMENT OF
THE INTERIOR
By:
Its: Mayor
Claude A. (“Bud”) Lewis By:
Its:
APPROVED AS TO FORM: -
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRIPPS, LLP
Ronald W. Rouse
By:
Stuart M. Richter
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano Ill
By:
Attorneys for SIERRA CLUB, CENTER
FOR BIOLOGICAL DIVERSITY, and
CANYONS NETWORK
Everett L. DeLano I11
OFFICE OF THE CITY ATTORNEY
By: CITY OF CARLSBAD
Attorneys for REAL ESTATE COLLATERAL Cindie K. McMahon, Deputy City Attorney
MANAGEMENT COMPANY, MORROW
Ronald W. Rouse Ronald R. Ball, City Attorney
DEVELOPMENT, INC. and HOUSEHOLD By: COMMERCIAL OF CALIFORNIA, INC. Ronald R. Ball
Attorneys for THE CITY OF CARLSBAD
UNITED STATES DEPARTMENT OF JUSTICE
Charles R. Shockey
By:
Charles R. Shockey /
Attorneys for GALE NORTON and THE UNITED
STATES DEPARTMENT OF THE INTERIOR
1714192.2 4
MORROW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
a California corporation CALIFORNIA, INC., a Delaware corporation
By: By:
Its: President Its: Vice President
Frederick M. Arbuckle David A. Watts
THE CITY OF CARLSBAD THE UNITED STATES DEPARTMENT OF
THE INTERIOR
By:
Its: Mayor
Claude A. (“Bud”) Lewis By:
Its:
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRPPS, LLP
Ronald W. Rouse
By:
Stuart M. Richter
By:
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD By:
COMMERCIAL OF CALIFORNIA, INC.
Ronald W. Rouse
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano III
By:
UNITED STATES DEPARTMENT OF JUSTICE
Charles R. Shockey
Attorneys for SIERRA CLUB, CENTER
FOR BIOLOGICAL DIVERSITY, and
CANYONS NETWORK
OFFICE OF THE CITY ATTORNEY
CITY OF CARLSBAD
Ronald R. Ball, City Attorney
Cindie K. McMahon, Deputy City Attorney
Ronald R. Ball
Attorneys for THE CITY OF CARLSBAD
1714192.2
By:
Attorneys for GALE NORTON and THE UNITED
STATES DEPARTMENT OF THE INTERIOR
Charles R. Shockey .
4
EXHIBIT "A"
FEb: 7. 2002 1:59PM SIERRA CLUB LEGAL NO. 947 p. 2
b
Hwsehold Commercial of Califomio. Inc. 2700 Saudcrs Road Prospect, IL 6OOlO
Re: S- of Sierra Club. et al. v. fity of Carisbad Case No. OIN 017085
To Whom It May Conm:
On behalf of thc Sierra Club, we are writing to convey adclitiod mn-binding representa2ions
regarding the Sierra Club's intcntions with respwl to bre implementattion of the proposed VifIages of La
Costa $ettlcment agreement. Please be advised that the xepresmtatiom contained in rhis letkc aTe no: intended in any aay to modify the tenes of the stttkment agreement, nor are they intended to mate any
enfomabk legal rights 01 obligations.
Household Commercial of Cahfomia, inc., not be $~~sociatcd with this litigation or thc proposed settlement
It is OUT undersranding that the Real ParW ir~ Iatmst fn this litigation are concerned that
agreement. The Sierra Club (including its San Diego Chapter) does not intend to =fer to Household
the Real Parties inform us of any instances in which Household GI ita affhates arc indeed nkenced by the Commercial or any of itF affiliates in om websites, newsletrers, or other forms ofpublic commmicadm If
Sierra Club, we wJ1, in the case of ongoing xeferenccs, maLC reasonable, good faith efforts to remove tbem
Club has a firm policy and precedest against agreeing to provisions that would legally bind the Club from mkhg the actions descnicd above. Indeed, tbe Sierra Club has made clear rhat it would not sign the
proposed scttlcmnt agreement in this lidgation des such provi$ions were removed, or h$uage inserted providing that such provisions clearly do not apply to the Si- Club. What we offer via this letter is our Mn-binding reassmte regarding the Sierra Club's intentions.
We close by emphasizing the non-binding nature oftbe assuratlces provided above. Tnc Sierra
Sincerely,
Authorizud Repmentative for
SanDiego Chapter, Siena Club
v
n
Ackg Coordjaatimg Attorney Si- Club Headquanera San Francisco, CA
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement”) is entered into as ofFebruary 8,2002
by and among Real Estate Collateral Management Company (“RECM”), Morrow Development, Inc.
(“Morrow”), and Household Commercial of California, Inc. (“Household) (collectively “Owner
Group”), on the one hand, and Sierra Club, Center for Biological Diversity (“Center”) and Canyons
Network (“Canyons”)(collectively “Petitioners”), on the other hand. All references in this Agreement
to a “party” or the “parties” shall mean the foregoing party or parties to this Agreement.
RECITALS
A. On or about May 3 1, 2002, Petitioners filed an action in the United States District
Court for the Southern District of California entitled Sierra Club. et al. v. Gale Norton. et al., Case
Number 01 CV 0963 BTM (POR) (the “Federal Action”). In the Federal Action, Petitioners allege
claims against Gale Norton, in her capacity as Secretary of the United States Department of Interior
and the Department of the Interior (collectively the “Federal Defendants”) for violations of the
Endangered Species Act, the Administrative Procedures Act and the National Environmental Policy
Act challenging the City of Carlsbad/Fieldstone/La Costa Associates Ongoing Multi-Species Habitat
Conservation Plan, and related agreements and permits (collectively the “HCP’) executed and issued
on or about June 5, 1995 by, among others, the United States Fish and Wildlife Service and the
California Department of Fish and Game.
B. Pursuant to court order dated November 30, 2001, RECM, the City of Carlsbad
(“City”) and La Cost Town Center Associates LLC were permitted to intervene as defendants in the
Endangered Species Act claims alleged in Petitioners’ complaint in the Federal Action. RECM, the
City and La Costa Town Center Associates LLC filed answers to Petitioners’ complaint, denying the
material allegations therein and raising various ailirmative defenses. The Federal Defendants also
filed an answer to Petitioners’ complaint, denying the material allegations therein and raising various
affirmative defenses.
C. On or about November 2 1,2001, Petitioners filed an action in the Superior Court of
the State of California entitled Sierra Club. et. al. v. Citv of Carlsbad. et al., Case Number GIN
013796 (the “State Action”). In the State Action, Petitioners seek a writ of mandamus challenging
certification of the Final Program Environmental Impact Report (“FEIR”) for the Villages of La
Costa (the “Project”) and all associated Project approvals.
D. On or about December 12, 2001, the San Diego Regional Water Quality Control
Board issued Order No. 2001-322 approving WasteDischarge Requirements and Section401 Water
Quality Certification for the Project (the “SDRWQB Order”).
E. On or about December 28,2001, the United States Army Corps of Engineers issued
the Department ofthe Army Permit (file # 992005400-TCD) for the Project pursuant to Section 404
of the Federal Clean Water Act (the “USACOE Permit”).
30753183.2 1
F. On or about January 8,2002, the California Department ofFish and Game entered into
a Streambed Alteration Agreement No. 5-349-99 with respect to the Project pursuant to Section
1603 the California Fish and Game Code (the “CDFG Agreement”).
G. On or about June 28,2001, RECM filed an action against Canyons in the Superior
Court of the State of California for the County of San Diego entitled Real Estate Collateral
Management ComDanv v. Canvons Network, Case No. GIN 01 3796 (the “Trespass Action”). In its
complaint, RECM alleged a single cause of action for trespass and sought preliminary and permanent
injunctive relief to prevent trespass by Canyons. On or about August 2, 2001, Canyons filed an
answer to RECM’s complaint, denying the material allegations therein and raising various affirmative
defenses. In addition, Canyons filed a cross-complaint, on behalf of itself and the people ofthe State
of California, alleging that portions of RECM’s property had been impliedly dedicated to the public.
RECM filed an answer to Canyons’ cross-complaint, denying the material allegations therein and
raising various affirmative defenses.
H. On or about December 21,2001, the court in the Trespass Action entered a judgment
in favor of RECM: (1) permanently enjoining Canyons from entering RECMs property, (2)
dismissing Canyons’ cross-complaint for implied dedication, and (3) requiring Canyons to pay
RECM’s costs in the amount of $3,001.42 (the “Judgment”).
I. Without admitting fault or liability of any kind, the parties hereto have entered into
this Agreement to settle and resolve all claims and disputes arising out of or relating to the Federal
Action, the State Action, the HCP, the Project, the FEIR, the SDRWQB Order, the USACOE
Permit, the CDFG Agreement, the Trespass Action and the Judgment.
AGREEMENT
1. Replanting in The Greens Area of The Project. RECM shall plant in suitable soils
in the Greens area of the Project the following plant species: Three Hundred Fifty Five (355) Nuttals
Scrub Oak, Two Hundred (200) Del Mar Manzanita, and Three Hundred (300) Thread Leaved-
Brodiaea. Such planting shall occur first in areas of disturbed southern maritime chaparral and/or
manufactured slopes and then in appropriate habitat preserve areas. RECM shall provide hnding for
monitoring and replacement, as necessary, with plants grown from onsite genetic material so as to
ensure at least 75% survivability relative to other like populations onsite of the foregoing plants for
a period of at least five (5) years after the commencement of development activities in the Greens area
oftheproject. For purposes ofthisparagraph 1, the“commencement ofdevelopment activities” shall
mean mowing, clearing, grubbing or grading on any portion of the Greens area of the Project. The
“Greens area” is depicted on page 2-4 of the FEIR and is described on pages 2-1 and 2-2 of the
FEIR.
2. Conveyance of Off-site Wetlands. RECM shall convey fee title to ten (10) acres of
real property that includes functioning wetlands to any third party mutually agreed to by Petitioners
and RECM, which agreement shall not be unreasonably withheld. The property is located generally
30753183.2 2
east of Rancho Santa Fe Road between Camino de 10s Coches and Calle Barcelona and shall be
conveyed in its current condition for permanent natural wetland habitat without any warranties or
representations of any kind. Provided however, in the event Petitioners have not identified a mutually
acceptable transferee by April 1, 2002, RECM shall convey the property to a third party of its
choosing, subject to the requirement that the property shall remain natural wetland habitat.
3. Rancho Santa Fe Road Undercrossing. A wildlife undercrossing shall be
constructed beneath the realigned Rancho Santa Fe Road (“RSF Road). The undercrossing shall
be a multi-plated arch (or equivalent construction method) twelve (12) feet high and approximately
twenty (20) feet wide at the base, and shall include a light well with a metal safety grate in the area
of the center divider of RSF Road. If the City is prevented, for any reason, from commencing or
completing construction of RSF Road, RECM shall be relieved of its obligations under this
Paragraph 3 and the remainder of this Agreement shall remain in effect. RECMs obligations
pursuant to this Paragraph 3 are subject to the following conditions imposed by the City: (1) The
construction of the undercrossing shall not interfere with or restrict in any way the City’s receipt of
or right to receive state or federal funds for purposes of the construction of RSF Road, (2) the City
shall be entitled to modify or close the undercrossing, ifthe City, in its discretion, deems modification
or closure necessary for public health and safety reasons; (3) the construction of the undercrossing
shall not require hrther federal and/or state environmental review; and (4) the construction of the
undercrossing shall not unreasonably delay the current construction schedule for RSF Road. The
general location of the undercrossing is identified in Exhibit “A” attached hereto.
4. Reduction of Development. RECM shall reduce the Project by 24 units in proposed
neighborhood 3.3 in the Oaks area, and by 8 units in proposed neighborhood 3.10 in the Oaks area,
as indicated on the map attached hereto as Exhibit “A,” These areas shall remain in open space in
perpetuity.
5. Payment by RECM. Upon execution ofthis Agreement, and the execution and filing
of the dismissals provided for in Paragraph 6, below, RECM shall pay the sum of Two Hundred Fifty
Thousand Dollars ($250,000) made payable to the Law Offices ofEverett DeLano” for, among other
things, reimbursement ofpetitioners’ attorneys’ fees and costs. Mer payment offees and costs, the
remainder shall be paid to a 501(c)(3) corporation designated by Petitioners, for the purpose of
habitat restoration and/or protection in the Carlsbad area. No portion ofthe hnds paid pursuant to
this Paragraph 5 shall be used to initiate or prosecute litigation or otherwise challenge or in any way
limit any construction or development on the Project or the realigned RSF Road.
30753183.2 3
6. Dismissals and Satisfaction of Judgment.
a. Dismissal of the Federal Action. Upon execution of this Agreement,
Petitioners shall cause to be filed a Stipulation of Dismissal, with prejudice, as to all parties and all
claims in the Federal Action. Petitioners shall cause a conformed copy of such Stipulation of
Dismissal to be served on counsel for all parties to the Federal Action. Except as provided in
Paragraph 5, all parties and signatories to this Agreement shall bear their own attorneys’ fees and
costs with respect to the Federal Action.
b. Dismissal ofthe State Action. Upon execution of this Agreement, Petitioners
shall cause to be filed a Dismissal, with prejudice, as to all parties and all claims in the State Action.
Petitioners shall cause a conformed copy of such Dismissal to be served on counsel for all parties to
the State Action. Except as provided in Paragraph 5, all parties and signatories to this Agreement
shall bear their own attorneys’ fees and costs with respect to the State Action.
c. Satisfaction of Judgment. Upon execution ofthis Agreement, RECM shall file
a Satisfaction of the Judgment in the Trespass Action. RECM shall cause a conformed copy of such
Satisfaction of Judgment to be served on counsel for Canyons.
7. Releases.
a. Releases by Petitioners. Petitioners, and each of them, and all of their
respective parents, affiliates, successors, predecessors, chapters, officers, directors, attorneys, agents
and representatives waive, release, and forever discharge Owner Group, the City and the Federal
Defendants, and each ofthem, and all oftheir respective parents, affiliates, successors, predecessors,
divisions, departments, officers, directors, attorneys, agents and representatives from any and all
claims, debts, obligations, demands, actions and causes of action, costs, expenses and/or liabilities,
of any kind or nature, character or description, whether known or unknown, asserted or unasserted,
fixed or contingent, that now exist or may ever have existed, arising out of or relating to the facts and
circumstances asserted and allegations made in the Federal Action, the State Action and the Trespass
Action, including but not limited to claims that have been or could be asserted in connection with or
in relation to the HCP, the Project, the FEIR, RSF Road, the SDRWQB Order, the USACOE Permit
and the CDFG Agreement.
b. Releases bv Owner Grouu. Owner Group, and each of them, and all of their
respectiveparents, affiliates, successors, predecessors, divisions, officers, directors, attorneys, agents
and representatives waive, release, and forever discharge Petitioners, and each of them, and all of
their respective parents, affiliates, successors, predecessors, chapters, officers, directors, attorneys,
agents and representatives, from any and all claims, debts, obligations, demands, actions and causes
of action, costs, expenses and/or liabilities, of any kind or nature, character or description, whether
known or unknown, asserted or unasserted, fixed or contingent, that now exist or may ever have
existed, arising out of or relating to the facts and circumstances asserted and allegations made in the
Federal Action, the State Action and the Trespass Action, including but not limited to claims that
30753183.2 4
have been or could be asserted in connection with or in relation to the HCP, the Project, the FEIR,
RSF Road, the SDRWQB Order, the USACOE Permit and the CDFG Agreement.
c. Waiver Civil Code Section 1542. The parties expressly waive all of their
respective rights under section 1542 of the California Civil Code, which provides as follows:
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
DEBTOR.
Initials
Real Estate Collateral
Management Company
Initials
Center For Biological
Diversity
Initials
SETTLEMENT WITH THE
Initials
Canyons Network
Initials
Sierra Club
&
Initials
Morrow Development, Inc. Household Commercial of
California, Inc.
The parties acknowledge that they may hereafter discover facts different from, or in addition
to, those which they now know and believe, or should now know and believe, to be true with respect
to the releases herein made and agree that said releases are now &d will remain effective
notwithstanding the existence of subsequent discovery of such additional facts.
8. Non-Disclosure. Because counsel for Owner Group has represented that RECM is
the sole owner of the Villages of La Costa property, no communication by Petitioners Center and
Canyons only, and their respective offmrs, directors, and their authorized agents and representatives
regarding the settlement reflected in this Agreement or the Villages ofLa Costa project shall mention
or refer to Household or any of its affiliated or related entities, other than RECM. Petitioners Center
and Canyons may refer to the “Villages ofLa Costa” and its “Owners,” and/or the developer Morrow
when referring to the settlement reflected herein or the Project. References to any entity (other than
RECM) that is affiliated or related to Household shall be removed from and/or shall not appear in
Canyons’ and the Center’s respective websites, newsletters, and other forms of public
communication.
30753183.2 5
have been or could be asserted in connection with or in relation to the HCP, the Project, the FEIR,
RSF Road, the SDRWQB Order, the USACOE Permit and the CDFG Agreement.
c. Waiver Civil Code Section 1542. The parties expressly waive all of their
respective rights under section 1542 of the California Civil Code, which provides as follows:
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. /
Initials K Initials
Real Estate Collateral Canyons Network
Management Company /e
Initials
Center For Biological
Diversity
+ Initia s
Sierra Club
Initials Initials
Morrow Development, Inc. Household Commercial of
California, Inc.
The parties acknowledge that they may hereafter discover facts different from, or in addition
to, those which they now know and believe, or should now know and believe, to be true with respect
to the releases herein made and agree that said releases are now and will remain effective
notwithstanding the existence of subsequent discovery of such additional facts.
8. Non-Disclosure. Because counsel for Owner Group has represented that RECM is
the sole owner of the Villages of La Costa property, no communication by Petitioners Center and
Canyons only, and their respective officers, directors, and their authorized agents and representatives
regarding the settlement reflected in this Agreement or the Villages ofLa Costa project shall mention
or refer to Household or any of its affiliated or related entities, other than RECM. Petitioners Center
and Canyons may refer to the “Villages of La Costa” and its “Owners,” and/or the developer Morrow
when referring to the settlement reflected herein or the Project. References to any entity (other than
RECM) that is affiliated or related to Household shall be removed from and/or shall not appear in
Canyons’ and the Center’s respective websites, newsletters, and other forms of public
communication.
30753183.2 5
have been or could be asserted in connection with or in relation to the HCP, the Project, the FER
RSF Road, the SDRWQB Order, the USACOE Permit and the CDFG Agreement.
c. Waiver Civil Code Section 1542. The parties expressly waive all of their
respective rights under section 1542 of the California Civil Code, which provides as follows:
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
DEBTOR.
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
Initials Initials
Real Estate Collateral Canyons Network
Management Company
Initials Initials
Center For Biological Sierra Club
Initials
California, Inc.
Morrow Development, Inc. Household Commercial of
The parties acknowledge that they may hereafter discover facts different from, or in addition
to, those which they now know and believe, or should now know and believe, to be true with respect
to the releases herein made and agree that said releases are now and will remain effective
notwithstanding the existence of subsequent discovery of such additional facts.
8. Non-Disclosure. Because counsel for Owner Group has represented that RECM is
the sole owner of the Villages of La Costa property, no communication by Petitioners Center and
Canyons only, and their respective officers, directors, and their authorized agents and representatives
regarding the settlement reflected in this Agreement or the Villages of La Costa project shall mention
or refer to Household or any of its affiliated or related entities, other than RECM. Petitioners Center
and Canyons may refer to the “Villages of La Costa” and its “Owners,” andor the developer Morrow
when referring to the settlement reflected herein or the Project. References to any entity (other than
RECM) that is affiliated or related to Household shall be removed from and/or shall not appear in
Canyons’ and the Center’s respective websites, newsletters, and other forms of public
communication.
30753183.2 5
9. Representations and Warranties.
a. The partiesrepresent that they have each read this Agreement, and eachis fully
aware of and understands all of its terms and the legal consequences thereof. Each party further
represents that it has consulted with and has received advice from independent legal counsel in
connection with the review and execution of this Agreement, and the waivers and releases provided
for herein are made knowingly and voluntarily after each party was appraised of all facts affecting any
and all rights such party might have in the subject matter of this Agreement.
b. The parties represent that there has not been any assignment, transfer,
conveyance or other disposition of any rights, obligations or liabilities released under the terms of this
Agreement, and that there will be no assignment or transfer or purported assignment or transfer to
any person or entity whatsoever, of any claim, debt, liability, demand, obligation, cost, expense,
action, defense or cause of action hereinabove released.
c. Each person executing this Agreement represents and warrants that hehhe is
fully authorized to enter into this Agreement on behalf of the party he/she purports to represent.
10. Continuing Jurisdiction And Attorneys’ Fees. The Courts in the Federal Action
and the State Action shall retain continuing jurisdiction over this matter to enforce the terms ofthis
Agreement pursuant to Federal Common law and Section 664.6 of the California Code of Civil
Procedure. In the event any party is required to commence any action or proceeding, or apply to the
court(s) to enforce the terms ofthis Agreement, the party prevailing in such action or proceeding shall
be entitled to recover its actual costs and attorneys’ fees.
11. Miscellaneous.
a. Exuress Beneficiaries. The City and the Federal Defendants are express third
party beneficiaries of the covenants and obligations of the parties hereto, and benefits of this
Agreement, including without limitation, the dismissals with prejudice ofthe Federal Action and State
Action as provided in Paragraph 6, above, the releases and the waiver of Section 1542 of the Code
of Civil Procedure, as set forth in Paragraph 7, above. As express third party beneficiaries, the City
and the Federal Defendants, jointly and severally, shall be entitled to rely on the benefits of this
Agreement and shall have the full right of enforcement of this Agreement pursuant to Paragraph 9,
above, or by independent judicial action or any other lawful means. The Consent and
Acknowledgment by counsel of record for the City and Department in the Federal Action and State
Action to the express beneficiary status provided hereinis not intended to, and shall not, make the
City or Department a party to this Agreement.
b. Au~licable Law. This Agreement shall be governed by and interpreted,
construed and enforced pursuant to the laws of the State of California.
30753183.2 6
c. No Oral Waiver or Modification. No waiver or modification of any of the
provisions ofthis Agreement or ofany breach thereof shall constitute a waiver or modification of any
other provision or breach, whether or not similar; nor shall any such waiver or modification constitute
a continuing waiver. No waiver or modification shall be binding unless executed in writing by the
party making the waiver or modification.
d. Entire Agreement. This Agreement constitutes the entire agreement made by
and between the parties pertaining to the subject matter hereof, and fully supersedes any and all prior
or contemporaneousunderstandings, representations, warranties, and agreements made bythe parties
hereto or their representatives pertaining to the subject matter hereof. No extrinsic evidence
whatsoever may be introduced in any judicial proceeding involving the construction or interpretation
of this Agreement.
e. Further Assurances. Each ofthe parties hereto agrees to execute and deliver
all such further documents consistent herewith and to take all such further actions as may be
reasonably requested by any other party to effectuate fully the terms and provisions of this
Agreement, provided such documents or actions do not materially limit, reduce or impair the rights
or increase the obligations of the party upon whom such request is made, and, provided further, that
complying with any such request shall not be at the expense of the requested party. Warranties,
representations, agreements, and obligations contained in this Agreement shall survive the execution
and delivery of this Agreement and shall survive any and all performances in accordance with this
Agreement.
f Binding on Successors. This Agreement shall inure to the benefit of, and shall
be binding upon, each of the parties hereto and their successors.
g. Countemarts. This Agreement may be executed and delivered in separate
counterparts, each of which, when so executed and delivered, shall be an original, but such
counterparts together shall constitute but one and the same instrument and agreement. Telecopy
signatures shall be effective and shall have the same force and effect as original signatures.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first
above written.
CANYONS NETWORK, a limited SIERRA CLUB, a nonprofit corporation
liability company /.
By: &p/ By:
One of its Dir tors Its:
Dougla hiting
[Signatures Continued 0; Next Page]
30753183.2 7
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY
By: 264 /L By:
Its: Its: Vice President
MORROW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
a California corporation CALIFORNIA, INC., a Delaware corporation
David Hogan David A. Watts
By: By:
Its: President Its: Vice President
Frederick M. Arbuckle David A. Watts
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRIPPS, LLP
Ronald W. Rouse
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano III
By: -
Everett L. DeLano III
Attorneys for SIERRACLUB, CENTERFOR
BIOLOGICAL DIVERSITY, and
By: CANYONS NETWORK
Stuart M. Richter
By:
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD
COMMERCIAL OF CALIFORNIA INC.
Ronald W. Rouse
30753183.2
[Signatures Continued On Next Page]
8
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY
By: By:
David Hogan David A. Watts
Its: Its: Vice President
MORROW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
a California corporation CALIFORNIA, INC., a Delaware corporation
By: By:
Frederick M. Arbuckle David A. Watts
Its: President Its: Vice President
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano I11
LUCE FORWARD HAMILTON &
Ronald W. Rouse Everett L. DeLano 111
SCRIPPS, LLP By:
Attorneys for SIERRACLUB, CENTERFOR
BIOLOGICAL. DIVERSITY, and
By: CANYONS NETWORK
Stuart M. Richter
Ronald W. Rouse
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD
COMMERCIAL OF CALIFORNIA, INC.
30753183.2
[Signatures Continued On Next Page]
8
CENTER FOR BIOLOGICAL
DIVERSITY, a nonprofit corporation
By:
David Hogan
MORROW DEVELOPMENT, INC.,
By:
Its: President
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LUCE FORWARD HAMILTON &
SCRIPPS, LLP
Ronald W. Rouse
By:
Stuart M. Richter
REAL ESTATE COLLATERAL MANAGEMENT
COMPANY
By:
Its: Vice President
David A. Watts
HOUSEHOLD COMMERCIAL OF
CALIFORNIA, INC., a Delaware corporation
By:
Its: Vice President
David A. Watts
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano 111
By:
Attorneys for SERRACLUB, CENTERFOR
BIOLOGICAL DIVERSITY, and
CANYONS NETWORK
Everett L. DeLano I11
By:
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD
COMMERCIAL OF CALIFORNIA, INC.
Ronald W. Rouse
30753183.2
[Signatures Continued On Next Page]
8
CENTER FOR BIOLOGICAL REAL ESTATE COLLATERAL MANAGEMENT
DIVERSITY, a nonprofit corporation COMPANY
By: By:
Its: Its: Vice President
MORROW DEVELOPMENT, INC., HOUSEHOLD COMMERCIAL OF
a California corporation CALIFORNIA, INC., a Delaware corporation
David Hogan David A. Watts
By: By:
Its: President Its: Vice President
Frederick M. Arbuckle David A. Watts
APPROVED AS TO FORM:
KATTEN MUCHIN ZAVIS
Stuart M. Richter
LAW OFFICES OF EVERETT DELANO
Everett L. DeLano 111
LUCE FORWARD HAMILTON &
SCRIPPS, LLP By:
Ronald W. Rouse Everett L. DeLano I11
Attorneys for SIERRACLUB, CENTERFOR
BIOLOGICAL DIVERSITY, and
By: CANYONS NETWORK
Attorneys for REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, MORROW
DEVELOPMENT, INC. and HOUSEHOLD
COMMERCIAL OF CALIFORNIA, INC.
30753183.2
[Signatures Continued On Next Page]
8
OFFICE OF THE CITY ATTORNEY UNITED STATES DEPARTMENT OF
CITY OF CARLSBAD JUSTICE
Ronald R. Ball, City Attorney Charles R. Shockey
Cindie K. McMahon, Deputy City Attorney - I I. BY: cC&Y, &/“7 AkV By:
Attorneys for CITY OF CARLSBAD Attorneys for GALE NORTON and UNITED
STATES DEPARTMENT OF THE
INTERIOR
Ronald R. Ball Charles R. Shockey
30753183.2 9
OFFICE OF THE CITY ATTORNEY UNITED STATES DEPARTMENT OF
CITY OF CARLSBAD JUSTICE
Ronald R. Ball, City Attorney Charles R. Shockey
Cindie K. McMahon, Deputy City Attorney
By:
Attorneys for CITY OF CARLSBAD Attorneys for GALE NORTON and UNITED
STATES DEPARTMENT OF THE
INTERIOR
Ronald R. Ball
30753183.2 9