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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. 1 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] 3 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