2 3 4 BRIGGS LAW CORPORATION [FILE: 1593.21] Cory J. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) 99 East "c" Street, Suite III Upland, CA 91786 Telephone: 909-949-7115 Fax: 909-949-7121 5 6 Attorneys for Plaintiff and Petitioner San Diegans for Open Government 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN DIEGO--CENTRAL DIVISION 10 11 12 13 14 15 16 17 18 SAN DIEGANS FOR OPEN GOVERNMENT; and) DOES 1 through 10, ) ) Plaintiffs and Petitioners, ) ) vs. ) ) CITY OF SAN DIEGO; and DOES 11 through ) 100, ) ) Defendants and Respondents; ) 101 through 1,000, Defendants and Real Parties in Interest. 23 24 25 26 27 28 **E~File** ) ) Action Filed: July 10,2013 ) Department: C- 72 (Taylor) 20 22 Consolidated with case no. 37-2013-00066088CU-TT-CTL STIPULATION AND (Proposed] ORDER RETAINING JURISDICTION UNDER CODE OF CIVIL PROCEDURE SECTION 664.6, VACATING ORDER TO SHOW CAUSE RE ISSUANCE OF - - - - - - - - - - - - - - - ) PRELIMINARY INJUNCTION AND SUNROAD ENTERPRISES; SUNROAD) TEMPORARY RESTRAINING ORDER, CENTRUM PARTNERS, L.P.; SUNROAD) AND DISMISSING CONSOLIDATED CENTRUM APARTMENTS 23, L.P.; and DOES) CASES WITH PREJUDICE 19 21 CASE NO. 37-20 13-00056749-CU-TT-CTL ) ) ) Plaintiffs and Petitioners, ) ) vs. ) ) CITY OF SAN DIEGO; and DOES 11 through 100, ) ) Defendants and Respondents; ) CREED-21; and DOES 1 through 10, --------------1 SUNROAD ENTERPRISES; SUNROAD) CENTRUM PARTNERS, L.P.; and DOES 101) through 1,000, ) ) Defendants and Real Parties in Interest. ) -------------_--.: 1 IT IS NOW STIPULATED BY AND AMONG THE PARTIES AS .FOLLOWS: 2 1. for Open Government and CREED-21 Plaintiffs and 3 ("Plaintiffs"), on one hand, and and Real and 4 Sunroad Spectrunfl Parullers, 5 (i'Settlement Agreement") 6 8 ~ 9 ~ 2. » a oondition to The Court's approval 10 between Plaintiffs and Real Parties, 11 Assuming that the Court approves this stipulation on the terms seUbrth below" 1" lliintitIs claim attc)mf~Y fi~es land OO~itU~Wlttheother 12 ill1 the allQve- 13 entitled actions. 14 15 4. ~king of the Settlement Ag;reemeJllt To ensure that the Court to retfun Jumidlcuoll over order to en1urce tl1te Settlement Agreemel:lt bet91reen 16 Plaintiffs and Real Parties until Jamlary 17 5. For reasons, the Court should ",nt,,,.. tl.", n,n mJ' "'P. Date: August 21, 2014. By: JIJRlfSmC'TION IITC. 2 By: 3 4 Attorneys for Defendants and Real Parties in Interest Sunroad Enterprises and Sunroad Spectrum Partners, L.P. 5 6 7 FOR GOOD CAUSE SHOWING, IT IS NOW ORDERED: 8 1. 9 10 11 12 13 14 15 16 17 The Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction and Order on Briefing Scheduled entered by the Court in case no. 37-20 l3-00066088-CUTT-CTL on July 31, 2014, is now vacated. 2. The request for a preliminary injunction by Plaintiff and Petitioner CREED-2l in case no. 37-2013-00066088-CU-TT-CTL is ordered off calendar. 3. This entire consolidated proceeding--consisting ofcase nos. 37-2013-00056749-CU-IT- CTL and 37-20 13-00066088-CU-TT-CTL--is dismissed with prejudice. 4. The Court is retaining jurisdiction over all parties in order to enforce the Settlement Agreement between Plaintiffs and Real Parties until January 31,2015. Date: August _ _,2014. Judge of the Superior Court 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND ORDER TO RETAIN JURISDICTION ETC. Page 3 STIPULATION AND [Proposed] ORDER RETAINING JURISDICTION UNDER CODE OF CIVIL PROCEDURE SECTION 664.6, VACATING ORDER TO SHOW CAUSE RE ISSUANCE OF PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER, AND DISMISSING CONSOLIDATED CASES WITH PREJUDICE Exhibit "A" SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into as of August 22,2014, by and between CREED-21, a California non-profit corporation ("CREED21 "), San Diegans for Open Government, a California non-profit corporation ("SDOG") and Sunroad Enterprises and Sunroad Centrum Partners, L.P. (collectively, "Sunroad") (each hereinafter a "Party" and collectively "the Parties"). A. On or about July 17,2013, SDOG filed a civil action entitled San Diegans for Open Government v. City ofSan Diego, et al., San Diego County Superior Court case no. 372013-00056749-CU-TT-CTL, alleging in general terms, that the City violated the California Environmental Quality Act ("CEQA"), the City of San Diego Charter ("Charter"), and the City of San Diego Municipal Code ("SDMC") when it approved a waiver of Council Policy 700-06 ("waiver") and building restricted easements ("easements") requested by Sunroad with respect to its phase 2 and 3 residential developments in Kearny Mesa, City of San Diego ("SDOG Civil Action"). On or about September 9,2013, CREED-21 filed a civil action entitled CREED-21 v. City ofSan Diego, et aI., San Diego County Superior Court case no. 37-2013, 00066088-CU-TTCTL, also alleging in general terms, that the City violated CEQA, the Charter, and the SDMC in approving the waiver and easements ("CREED-21 Civil Action"). The SDOG Civil Action and CREED-21 Civil Action are collectively referred to herein as the "Civil Actions." B. The City of San Diego ("City") and Sunroad deny the allegations in the Civil Actions. Thus, there is currently a bonafide dispute between CREED-21 and SDOG, on the one hand, and the City and Sunroad, on the other hand. C. At this time, the Parties desire to settle the Civil Actions once and for all in order to avoid the expense and delay of litigation and without any admission of liability or wrongdoing. D. This Agreement shall apply to the Civil Actions only, and not to any other lawsuit which may be pending as between the Parties or between any of the Parties and the City. NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the parties hereby agree as follows: 1.0 Settlement Amounts and Dismissal of the Civil Actions. 1.1 Not more than ten business days after the execution of this Agreement, Sunroad shall request the City to select a qualified real estate appraiser, who may be a professional appraiser or a qualified appraiser of the City, to appraise the value of the area included within (1) that certain Building Restricted Easement benefiting Lot 8 of Sunroad Centrum, in the City of San Diego, County of San Diego, State of California, recorded on June 28, 2013 in the Office of the County Recorder, as Document No. 2013-0408463, and (2) that certain Building Restricted Easement benefiting Lot 3 of Parcel Map No. 20922, recorded on June 28, 2013 in the Office of the County Recorder, as Document No. 2013-0408467 (collectively, the "Building Restricted Easements"). Sunroad shall pay for the services rendered by the appraiser. If the City refuses to 1 select a qualified appraiser, the Parties shall agree on a qualified appraiser to perfonn the appraisal. If the Parties are unable to agree on an appraiser, then each side may select an appraiser and the two appraisers selected by them shall select a third appraiser to perfonn the appraisal. 1.2 Not more than ten business days after completion of the appraisal, if the appraiser detennines there is a value associated with the area included within the Building Restricted Easements, then Sunroad shall pay that amount to the City with a request that the City deposit those funds into the appropriate identified City account associated with purchases of public property used as a park. 1.3 Sunroad shall pay to Briggs Law Corporation the total sum of $135,000.00 in settlement of all claims asserted by CREED-21 and SDOG in the Actions, to be made payable to "Briggs Law Corporation Trust Account" and delivered to CREED-21 's and SDOG's counsel of record not more than three business days after the execution of this Agreement. 1.4 Sunroad shall donate $10,000.00 to the appropriate City park acquisition fund, to be identified by the City (with priority for parks located in Kearny Mesa and then Clairemont), not more than three business days after the execution of this Agreement. 1.5 Concurrent with the execution of this Agreement, the Parties shall execute a Stipulation in the fonn attached as Attachment 1 requesting the court to vacate the temporary restraining order and Order to Show Cause Regarding Preliminary Injunction and Order of Briefing Schedule entered in the CREED-21 Civil Action vacated, dismissing the Civil Actions, as consolidated, and retaining jurisdiction over the Parties in order to enforce the Agreement until January 31, 2015. Among other things, the Stipulation provides for the dismissal of the Civil Actions with prejudice. Entry of the Stipulation, including its dismissal of the Civil Actions with prejudice, is a prerequisite to the effectiveness of this Agreement. 2.0 Withdrawal of Requests for Temporary Restraining Order and Preliminary Injunction. 2.1 CREED-21 shall withdraw its request for a temporary restraining order and preliminary injunction in the CREED-21 Civil Action, and in connection with the proceedings conducted by the court on August 22,2014, CREED-21 shall so notify the court and request that the Court dissolve the temporary restraining order previously issued. This Agreement is expressly made contingent on the absence of any temporary restraining order or preliminary injunction relating to the occupancy of the units in phases 2 and 3 of Sunroad's residential development, and neither CREED-21 nor SDOG shall request any further injunctive relief in the Civil Actions relating to said occupancy. The request required by this section is contained in the Stipulation attached to this Agreement is Attachment 1. 3.0 Release. 3.1 Except as provided in Paragraph 4.1 below, each of the Parties, for itself and no other ("Releasing Party"), now irrevocably and unconditionally remises, releases, acquits, -212772-0004\1742207vl.doc absolves, and forever discharges the other Party and each and all of the other Party's members, shareholders, directors, officers, associates, agents, attorneys, employees, insurers, representatives, successors, assignees, alter egos, and associated companies, and all persons who at any time have acted by, through, under, or in concert with any or all of the foregoing persons and entities ("Released Persons/Entities"), of and from any and all debts, contracts, charges, complaints, causes of action, claims, suits, damages, offsets, obligations, promises, agreements, losses, liens, costs, controversies, judgments, and expenses, of every kind whatsoever both in law and in equity, whether known or unknown, fixed or contingent, direct or derivative, subrogated or assigned, suspected or unsuspected, disputed or undisputed, that the Releasing Party has or may have, or that the Releasing Party at any time previously had or claimed to have, or that the Releasing Party may have or claim to have, against any of the Released Persons/Entities by reason of any matter, cause, judgment, act, omission, or thing whatsoever from the beginning of time to the effective date of this Agreement, including without limitation all matters, causes, offsets, acts, omissions, or things whatsoever that may have been, were, or ever could have been or ever could be alleged in any pleadings filed in the Civil Actions, and including without limitation any and all claims for intentional misrepresentation, negligent misrepresentation, abuse of process, or malicious prosecution. 3.2 In addition to the release given in Paragraph 3.1 above, and as provided in Section 4 below, the Parties waive all rights and benefits that they now have, or in the future may have, under Section 1542 of the California Civil Code and any law, principle, or rule of similar effect of any state or territory of the United States or under federal law with respect to the Project. Section 1542 of the California Civil Code provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 3.3 The Parties acknowledge (i) each Party is aware it/they may subsequently discover facts in addition to or different from those that they now know or believe to exist with respect to the matters covered by this Agreement; and (ii) that such different or additional facts, if they exist, may have given or may subsequently give rise to causes of action, claims, demands, controversies, damages, losses, costs, and expenses that are presently unknown, unanticipated, and unsuspected. The Parties therefore affirm the releases contained in this Agreement have been negotiated and agreed upon in light of that acknowledgment, and they intend, through this Agreement and with the advice of their respective attorneys, to fully, finally, and forever settle and release to the fullest extent permitted by law any and all possible claims, causes of action, disputes, and differences, whether known or unknown, suspected or unsuspected, arising out of all facts or occurrences which are the subject of the Civil Actions. In furtherance of such intention, the Parties also affirm that the releases contained in this Agreement shall remain in effect and shall be fully binding notwithstanding the discovery or existence of any additional or different facts. -312772-0004\1742207vl.doc 4.0 Reservation of Claims and Defenses. 4.1 The other provisions of this Agreement notwithstanding, this Agreement shall have no application of any kind to any aspect of any of the following: (i) San Diegans for Open Government, et al., v. California Coastal Commission, et al., San Diego County Superior Court case no. 37-2013-00057492-CU-TT-CTL (Sunroad Harbor Island Restaurant); (ii) San Diegans for Open Government, et al., v. City ofSan Diego, et ai, San Diego County Superior Court case no. 37-2014-00014685-CU-TT-CTL (Sunroad Residential Project, Phases 4 and 5) (collectively, "Excluded Proceedings"). The entirety of the Parties' claims, defenses, and other rights and interests in the Excluded Proceedings - as they exist today and as they may exist in the future are outside the scope of this Agreement, and those claims, defenses, rights and interest may be asserted and pursued by either of the Parties as if this Agreement did not exist. 5.0 Miscellaneous Provisions. 5.1 Compromise of Disputed Claims. This Agreement is a compromise of disputed claims and shall never at any time or for any purpose be considered an admissions of any wrongdoing or liability or responsibility on the part of any Party; nor shall the furnishing of consideration for the execution of this Agreement constitute or be construed as an admission of any liability whatsoever by either Party. 5.2 Non-Disparagement. The Parties shall not disparage one another, directly or indirectly, with respect to this Agreement, the Civil Actions filed, or any of the matters alleged, asserted, or argued by the Parties in or in connection with the Civil Actions. 5.3 Integration. The undersigned, and each of them, acknowledge and represent that no promise or inducement not expressed in this Agreement has been made in connection with this Agreement. This Agreement contains the entire agreement and understanding between the Parties as to the subject matter of this Agreement and is intended to be and is a final integration thereof. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the Parties hereto relating to the terms and conditions of this Agreement that are not fully expressed herein. 5.4 Waiver and Amendment. No provision of this Agreement, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision. This Agreement may be amended, modified or rescinded only in writing signed by all Parties to this Agreement. 5.5 Time of Essence. Time is expressly declared to be of the essence in this Agreement, and of every provision in which time is an element, if any. The Agreement shall have no force or effect unless fully executed by the Parties by 1:00 p.m. on August 22,2014. 5.6 Captions. Paragraph titles and captions contained in this Agreement are inserted as a matter of convenience and for reference, and are not a substantive part of this Agreement. -412772-0004\1742207vl.doc 5.7 Interpretation and Intent. This Agreement is the result of arms-length negotiations by the Parties, each of whom had their own counsel. Accordingly, all Parties hereto acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another, or the attorneys for one party or another. No provision of this Agreement shall be interpreted against any Party because that Party, or their legal representative, may have drafted that provision. 5.8 Additional Documents. The Parties each agree to sign any additional documents which are reasonably necessary to carry out the purpose and intent of this Agreement. 5.9 Benefit and Burden. This Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parent companies, subsidiaries, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms plaintiffs, and/or persons or entities connected with each of them, including, without limitation, their insurers, sureties, consultants and experts. 5.10 Governing Law. This Agreement has been executed in the State of California, and shall be interpreted and enforced under California law. Venue for any action related to this Agreement shall be in San Diego County. 5.11 Waiver of Costs Arising Out of the Lawsuit. Except as otherwise provided in this Agreement, the Parties agree to waive any claim for and all costs and attorney's fees against any party named in the Civil Actions accrued prior to and as of the date this Agreement is signed. 5.12 Attorney's Fees Arising Out of Enforcement of Agreement. In the event any action or proceeding is brought to enforce this Agreement, the prevailing party shall be entitled to the reasonable fees, out-of-pocket expenses, and costs of attorneys and experts against the non-prevailing Party, in addition to all other relief to which that Party may be entitled. 5.13 Warranty of Authoritv. Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement. 5.14 No Assignment. Each party represents and warrants that it has not assigned or transferred any claims released herein, and that it is the sole owner of that claim. 5.15 Signatures. This Agreement may be signed in counterparts. Signatures transmitted by facsimile shall be deemed to be originals. 5.16 Representation by Counsel. The undersigned and each of them acknowledge and represent that they have read this Agreement in its entirety, understand all of its terms and -512772-0004\1742207vl.doc provisions, and sign this Agreement voluntarily and of their own free will, knowing that it is a legally binding document and with the intent to bound hereby. 5.17 Agreement Voluntarily. The undersigned and each of them acknowledge and represent that they have read this Agreement in its entirety, understand all of its terms and provisions, and sign this Agreement voluntarily and of their own free, knowing that it is a legally binding document and with the intent to bound hereby. 5.18 No Reliance on Other Party. The undersigned and each of them acknowledge and represent that they are affecting this compromise and settlement and are executing this Agreement (i) after they and their respective legal counsel had the opportunity to and did conduct an independent investigation of the relevant facts; and (ii) without relying on representation made by the other Party or the other Party's attorney. 5.19 Severability. Even if a court holds one or more part of this Agreement ineffective, invalid, or void, all remaining provisions shall remain valid. 5.20 Notices. All notices given pursuant to this Agreement or law shall be written. Notices shall be delivered with all delivery or postal charges prepaid. Notices may be given personally; by facsimile; by United States first-class mail; by United States certified or registered mail; or by other recognized overnight service. Notices shall be deemed received on the date of personal delivery or facsimile transmission; on the date shown on a signed return receipt or acknowledgment of delivery; or, if delivery is refused or notice is sent by regular mail, seventytwo (72) hours after deposit. Until a Party gives notice of a change, notices shall be sent to: FORCREED-21: Richard Lawrence, Chair CREED-21 1501 India Street, Suite 103-64 San Diego, CA 92101 FORSDOG: Pedro Quiroz, Chair San Diegans for Open Government 4833 Santa Monica Avenue, #7878 San Diego, CA 92107 And FOR CREED-21 & SDOG: Cory J. Briggs Briggs Law Corporation 99 East "C" Street, Suite III Upland, CA 91786 FOR SUNROAD: Dan Feldman Sunroad Enterprises 4445 Eastgate Mall San Diego, CA 92121 -612772-0004\1742207vl.doc And Steven H. Kaufmann Richards, Watson & Gershon 355 S. Grand Avenue, 40th Floor Los Angeles, CA 90071-3101 IN WITNESS THEREOF, the undersigned have executed this Agreement as follows: CREED-21 Dated: August _ , 2014 By: Its: Dated: August 1 \ , 2014 _ _ San Diegans for 0 en Government By: Its: -'-<::..U,;'----