SR-906-000 (24)~_ . .
City Council Report
~ c~ty os
Santa Monica~'
To: Mayor and Gity Council
City Council Meeting: September 26, 2006
Agenda Item: ~
From: Marsha Jones Moutrie, City Attorney
Subject: Resolution Regarding the Public Recreation Facility to be Developed at
415 Pacific Coast Highway
Recommended Action
Staff recommends that the City Cauncil adopt the attached resolution.
Executive Summary
The attached resolution expresses the City Council's intentions as to the conditions for
the public beach club to be built at 415 Pacific Coast Highway. The settlement
agreement governing the adaptive reuse project at 415 Pacific Coast Highway is
contingent upon Council adoption of a resolution expressing its intentions as to the
duration of certain project conditions
The attached resolution would fulfill that
requirement.
Discussion
After the City announced its intention to use the grant from the Annenberg Foundation
to rebuild 415 Pacific Coast Highway and operate it as a public beach club, beach
residents expressed their opposition and filed suit. They argued that the proposed
project would adversely impact their safety and quality of life.
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Project conditions were formulated to, among other things, address their concerns.
However, the duration of the conditions became an issue. Eventually, a settlement was
negotiated. It is contingent upon Council adopting a resolution expressing its intent that
certain conditions should remain unchanged for 10 years and others for seven and a
half years.
Alternatives
The Council could decide not to adopt the attached resolution, in which case the
settlement wiil fail and the litigation would presumably proceed.
Budget/Financial Impact
The resolutian itself has no direct financial impact.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved: Forwarded to Council:
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SETTLEMENT AGREEMENT
This Settlement Agreement {"Settlement Agreement"), dated September /,3, 2006
RECITALS _ ' `'
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WHEREAS, the City proposes to rehabilitate and adaptively reuse as a public recceatia~
facility the former Marion Davies estate located on State-owned land at 415 Pacific Coast_ ~-
Highway in Santa Monica, California ("Project"). In that regard, the City, on or about M~y 25~,:~'
2006: (a) approved the Project Development Review Permit, (b) approved the Project Re~ce~;',
Parking Permit, (c) approved the Project Fence/Wall Height Modification, and (d) certified the ~
Project Environmental Impact Report (State Clearinghouse # 2005021137) (collectively "Project
Approvals");
("Effective Date"), is entered into by and among the Palisades Beach Property Owners Assn.,
Inc., a California coiporation (sometimes called Palisades Beach Road Property Owners
Association) ("Association"); 3onathan Ornstein, an individual, ("Ornstein"), and the Cit~;~~f ~,, ;
Santa Monica, a charter city ("City") (collectively "Parties" and each a"Party''). <' :='
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VVHEREAS, the Annenberg Foundation intends to provide the City approximately $27
million to fund the Project;
WHEREAS, on June 23, 2006, the Association and Ornstein filed a lawsuit challenging
the Project and the Project Approvals, Palrsades Beach Property Owners Assn., Inc., et al. v.
City of Santa Monica, et al., Los Angeles County Superior Court Case No. BS 103819
("Lawsuit"); and
WHEREAS, the Parties desire to settle the Lawsuit and all disputes concerning the
Project without admission of liability and to permit the Project to proceed without hindrance or
delay.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
whicll is hereby acknowledged, the Parties hereto agree as follows:
l. Operations A~reement: Prior to the issuance of a Certificate of Occupancy for
the Project, the City sha11 enter into, and shall thereafter abide by, an agreement with the
Annenberg Foundation ("Operations Agreement") which shall require that: (1) specified
conditions of the Project (see Exhibit A to this Settlement Agreement) shall be in place for at
least 10 years from the issuance of the Certificate of Occupancy, and (2) specified conditions of
the Project (see Exhibit B to this Settlement Agreement) shall be in place for at least 7.5 years
from the issuance of the Certificate of Occupancy. It is the City's intent that the Operations
Agreement shall initially be in the form of a letter agreement with the Annenberg Foundation
which will later be superseded by a more comprehensive operations plan or agreement between
the City and the Annenberg Foundation. Provided that the conditions set forth in Exhibits A and
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B of this Settlement Agreement do not change in the more comprehensive plan or agreement, the
City shall not be required to comply with the notification provisions set forth in Paragraph 5 of
this Settlement Agreement when entering into such later plan or agreement. Without defining or
limiting any Party's enforcement options, the Parties agree that the City shall be obligated to
comply with the terms of this Paragraph and any person may enforce such obligations to the
extent and in any manner afforded by law.
2. California Department of Parks and Recreation: Prior to the City's issuance
of a Certificate of Occupancy for the Project, the City shall enter into, and shall thereafter abide
by, an agreement with the California Department of Parks and Recreation ("State AgreemenY')
which shall require that: (l) specified conditions for the Project (see Exhibit A to this Settlement
Agreement} shal] be in place for at least 10 years from the issuance of the Certificate of
Occupancy, and (2) specified conditions of the Project (see Exhibit B to tfiis Settlement
Agreement) shall be in place for at least 7.5 years from the issuance of the Certificate of
Occupancy. Without defining or limiting any Party's enforcement options, the Parties agree that
the City shall be obligated to comply with the terms of this Pazagraph and any person may
enforce such obligations to the extent and in any manner afforded by law. ,
3. Coastal Commission Application: The City shall include the conditions listed in
Exhibits A and B as part of the project description to be reviewed by the California Coastal
Commission. The City shall request that the conditions listed in Exhibits A and B be included in
the Coastal Development Permit for the Project, and shall actively advocate for their inclusion.
In the event the Coastal Commission seeks to impose any condition(s) inconsistent with those
listed in Exhibits A and B, the Parties shal] actively advocate that no such inconsistent
condition(s) be imposed.
If, despite the Parties' advocacy, the Coastal Commission imposes any condition(s)
inconsistent with those listed in Exhibits A and B, the Parties shall meet and confer to work out a
mutually agreeable resolution.
4. Citv Council Resotution: This Settlement Agreement is contingent upon the
Santa Monica City Cow~cil adopting a formal resolution expressing its intent that: (1) specifred
conditions for the Project (see Exhibit A to this Settlement Agreement) shall be in plac~ for at
least l 0 years from the issuance of the Certificate of Occupancy, and (2) specified conditions of
the Project (see Exhibit B to this Settlement Agreement) shall be in place for at least 7.5 years
from the issuance of the Certificate of Dccupancy. In the event that the City Council does not
adopt such a resolution within 60 days after the Effective Date, this Settlement Agreement shall
be of no force or effect.
5. Notification of Modification: In the event that any person or entity seeks any
modification to the Operations Agreement, the State Agreement, the Coastal Development
Permit, and!or the City Approvals as they relate to the conditions set forth in Exhibits A and B,
the City shall give the Association and Ornstein immediate written notice thereof as provided in
Paragraph 22. In no event may the City modify or consent to any modification to the Operations
Agreement, the Siate Agreement, the Coastal Development Permit, andJor the City Approvals
that conflicts with the provisions of Paragraphs 1, 2, or 3 above. This provision shall expire
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within 10 years from the issuance of the Certificate of Occupancy as to those conditions listed in
Exhibit A and from 7.5 years from the issuance of the Certificate of Occupancy as to those
conditions listed in Exhibit B.
6. Dismissal: Within three (3) court days after the last to occur of (a) the Santa
Monica City Council adogting a res~lution consistent with Paragraph 4 and (b) the adoption of
the Operations Agreement, the Association and Ornstein shall file a Dismissal with Prejudice
with the Los Angeles County Superior Court dismissing the Lawsuit with prejudice.
7. Traffic Signal Application: On July 24, 2006, the City filed an application
seeking approval from Caltrans for installation of a traffic signal at the intersection of Beach Lot
10 and Pacific Coast Highway (the details of the traffic signal are set forth in the July 24, 2006
application and are incorporated herein by this reference). The City shall use its best efforts to
secure approval of this application prior to occupancy of the Project. The Association and
Ornstein agree to assist the City in urging Caltrans and other appropriate officials to approve this
signal. Each Party understands that no guarantee exists concerning what decision Caltrans may
make.
8. Mutual Release: Ornstein and the Association hereby irrevocably and
unconditionally release, acquit, and forever discharge the City, and each of its agents,
representatives, elected officials, employees, officers, directors, attorneys, and administrators,
from any and all charges, complaints, claims, grievances, ]iabilities, damages, actions, causes of
action, suits, appeals, rights, demands, costs, fees, losses, debts and expenses, of any nature
whatsoever, known or unknown, that were alleged or asserted in the Lawsuit and/or related to the
Project or Project Approvals and that arose on or before the Effective Date. The City hereby
releases Ornstein, the Association and each of the Association's and/or Ornstein's officers, board
members, members, owners, principals, employees, attorneys, and/or other representatives from
any and all charges, complaints, claims, grievances, liabilities, damages, actions, causes of .
action, suits, appeals, rights, demands, costs, fees, losses, debts and expenses, of any nature
whatsoever, known or unknown, that were alleged or asserted in the Lawsuit and/or related to the
Project or Project Approvals and that arose on or before the Effective Date. Notwithstanding
the foregoing, any Party may enforce the terms of this Settlement Agreement, the Project
Approvals, andJor any permit reyuirements. .
9. Non-Onposition and Covenant Not to Sue (Association and Ornstein): The
Association and Ornstein covenant not to:
A, sue, bring any lawsuit in connection with, challenge or contest,
administratively or judicially, directly or indirectly, or to seek to hinder in any way whatsoever,
whether by ]itigation, public opposition, petition to government authorities, or otherwise, the
Project and any Project approvals; and
B. assist or provide cooperation at any time, direct or indirect, by themselves
or through their agents or their attomeys after the date hereof, by encouragement, the supplying
of information or testimony (except under compulsion of subpoena), or financial suppori, or any
other support, to persons who sue, challenge, or contest the Project or the Project Approvals;
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provided, however, that the Association and Ornstein do not relinquish the right to seek judicial
enforcement of this Settlement Agreement and nothing herein shall restrict or limit the ability of
the Associati~n or Ornstein from initiating ]egal proceedings to enforce any Project approvals or
permit requirements.
10. Non-Opposition and Covenant Not to Sue (Individuals): Within three (3)
business days of the Effective Date, the Association shall deliver to the City releases of claims
ai~d covenants of non-opposition and not to sue executed by Charles M. Levy, John Law, Carl
Robertson, and George Rosenthal. Said releases of claims and covenants of non-opposition and
not to sue shall be substantially in the form as set forth in Exhibit C. The Settlement Agreement
shall be of ~ZO force and effect in the event that the Association fails to timely deliver these
releases and covenants to the City. Neither this provision nor Paragraph 9listed above shall
preclude any Party from initiating legal proceedings to enforce the terms of this Settlement
Agreement, Project approvals or permit requirements.
1 l. Subsepuent Liti~ation: In the event a third party, unrelated to the Association
and Ornstein, brings an action regarding the Project or Project Approvals, the Parties shall meet
and confer to work out a mutually agreeable resolution, if necessary.
12. Joint Press Release: The Parties may issue a joint statement to the public and
press concerning this Agreement, in the form to be agreed upon among the Parties and to be
delivered in a mutually agreeable time, place and manner.
13. Authori : Each signatory to this Settlement Agreement represents and wanants
that he or she is authorized to sign this Settlement Agreement on behalf of the Party for which he
or she is si~ning, and thereby to bind that Party fully to the terms of this Settlement Agreement,
and that to the extent any authorizations or consents are required, they have been obtained.
l 3a. Levv Authoritv: Notwithstanding anything to the contrary contained in
this Settlement Agreement, Charles M. Levy, by his signature hereto, represents only that he is
signing on behalf of the Association and not as a representative, or on behalf, of any other pezson
or entity.
13b. Levy Liability: The Parties agree and acknowledge that Chazles M. Levy
is executing this Settlement Agreement solely in his capacity as president of the Association, not
in his individual capacity, and shall have no personal liability under this Agreement. The Parties.
shall look solely to the assets of the Association, and not to any assets of Charles M. Levy, in
seeking either to enforce the obligations of the Association under this Settlement Agreement or
to satisfy a judgmenT for the Association's failure to perform such obligations.
14. Entire APreement; Written Amendment Onlv: This Settlement Agreement (i)
constitutes the entire agreement between the Parties conceming the subject matter hereof, (ii)
supersedes any previous oral or written agreements conceming the subject matter hereof, and
(iii) shall not be modified except by a writing executed by the Party(ies) to be bound thereby.
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I5. Counterparts and Fax Execution: This Settlement Agreement may be executed
in counterparts which taken together shall constitute one and the same agreement. This
Settlement Agreement also may be executed and delivered by facsimile and/or email
transmission and in such event all facsimile and/or email signatures shall be deemed originals for
all purposes.
16. Full Knowled~e and Waiver: Each Party consulted with an attomey, and
executed this Settlement Agreement with a complete understanding of its legal effect. The
Parties understand that executing this Settiement Agreement expressly waives all of the ~
aforementioned rights waived herein, and binds all Parties to the terms of this Settlement
Agreement.
17. Waiver of Costs and Fees: Each Party shall bear its own costs and attorneys'
fees, including without limitation any costs and attorneys' fees associated with this Settlement
Agreement and the Lawsuit.
18. Choice of Law/Successors and Assigns: This Settlement Agreement shall be
governed under the laws of the State of Califamia. This Settlement Agreement shall be binding
on and shall inure to the benefit of the Parties hereto and their respective s~accessors and assigns.
19. Execution or pocuments and Instruments/Dismissal of Actions: Each Party
hereto agrees to cooperate fully and execute any and all supplementary documents and to take a11
additional actions that may be necessary or appropriate to give full force and effect to the basic
terms, purpose, and intent of this Settlement Agreement:
20. Owners6ip of Claims: The Parties represent and warrant that no portion of any
claim released in this Settlement Agreement has been assigned or transferred to any other person,
firm or corporation not a party to this Settlement Agreement, in any manner, including by way of
subrogation or operation of law or otherwise. In the event that any claim, demand, suit or appeal
is made or instituted against a Party because a Party made an actual assignment or transfer, this
Settlement Agreement shall be null and void.
21. Savin~s Clause: 1n the event that any term, covenant, condition, item of
consideration, provision or agreement contained herein is held to be invalid, void, illegal, or
otherwise ullenforceable, the fact that such term, covenant, condition, item of consideration,
provision or agreement is invalid, void, illegal, or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition, item of consic~eration,
provision or agreement contained herein.
22. Notice: Any written notice required hereunder shall be effective upon delivery
via facsimile or personal delivery to:
To Association: Palisades Beach Property Owners Assn., Inc.
Attn: Charies M. Levy, President
201 Palisades Beach Road
Santa Monica, CA 90402
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With a copy to: - Charles M, Levy, Esq.
637 Palisades Beach Road ?
Los Angeles, Califomia 90402
Facsimile: (310) 395-2357
And ,
Charles M. Levy, Esq.
S 15 Moraga Drive
Los Angeles, Califomia 90049 :
Facsimile: (310) 471-7990 ~
And
James L. Arnone, Esq.
Damon P. Mamalakis, Esq.
Latham & Watkins LLP
633 West Fiflh Street, Suite 4000
Los Angeles, California 90071-2007
Facsimile: (213) 891-87b3
To Jonathan Omstein:
Mr. Jonathan Ornstein
506 Palisades Beach Road
Santa Monica, CA 90402
To City:
City of Santa Monica
Attn: Cultural and Community Services Director
1685 Main Street, Room 212
Santa Monica, CA 90401
Facsimile: (310) 576-1539
With a copy to:
City Attorney
City of Santa Monica
1685 Main Street, Third Floor
Santa Monica, CA 90401
Facsimite: (3l0) 395-6727
23. Bindin~ Effect: This Settlement Ageement shall be binding upon and shall inure
to the benefii of the respective Parties hereto, their heirs, estates, successors, and assigns.
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24. No Admission of Liability: The Parties acknowledge and agree that the
execution of this Settlement Agreement is the result of compromise, is entered into in good faith,
and shall not for any purpose be considered an admission of liability or responsibility conceming
any conduct of the Parties referred to herein, and no past or present wrongdoing on the part of
any of the Parties sha11 be implied by such execution or payment.
Il~I WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be
executed the day and year first above written.
CITY OF SANTA Iv10NICA
a municipal corporation
VED AS FORN~•
G~;~~'~'f,
M SHA J MOUT
Cit ttome
ATTEST:
MA.RiA STEWA.RT
City Clerk
By;
P. LAMONT E WELL
City Manager
PALISADES
OWNER~;
By:
~CH PROPERTY
, INC. ~ i
M. LE
JONATHAN ~RNSTEIN
APPROVED AS TO FORM:
LATHAM & WATKINS LLP
By: ~~....~. -~"
J ES L. ARNONE
Attorneys for Palisades Beach Property Owners Assn., Inc.
and Jonathan Ornstein
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24. ` No Admission of Liabilitv: The Parties acknowledge and a~rec that lhc
cxecution ot~ lhis Settlement Agreemeti~t is the result of compromise, is entered into in good faith,
~nd shull no~ for any purpose be considerecl an admission of liability or responsibility cuncerning
any conduct of the Parties referred to hcrcin, and no past or present wrongdoing on the part of
any of the Parties shall be implied by such execution or payment. ,
1N WITNESS WHEREOF, t11e Parties have caused this Settlement Agrec~ttent to he
cxccuted the day and year first above written.
CITY OF SANTA MONICA
a mu~.ieitlafic~rporation
Bv.
[.~CMONT EW~L
y Manager
PROVEU A$~TO FORM:
ity Att~ime
MOUXRIE
TTES v
~ S~
MARIA STEWART
City C1erk
PALISADES BEACH PROPER'fY
OWNERS ASSN., INC.
CHA LES M. V
Presi ent
~'~~1~ ~t~/'
JONATHAN ~ S . N
AYPROVED AS TO FORM: , ;,
LATHAM & WATK(NS LLP ~~
By: ~ .~"
.I ES L. A RNON E
Attorneys for Palisades Beach Property Owners Assn., Inc.
and Jonathan Ornstein
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EXHIBIT A
LA~I b I 3218. I 0
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CONDITIONS OF APPROVAL - 415 PCH
EXHIBIT A
Category 1: Conditions shall be in place for at least 10 years from Certificate of
Occupancy , '
38. The project shall comply with all mitigation measures related to operations of the
site following Certificate of Occupancy identified in the FEIR prepared for this project, except
T-2 (see Exhibit B # 38).
40. As shown on plans dated May 16, 2006, the following design elements are required:
perimeter railings and fencing; gates at all parking lots; and gates at all entries to open space
areas east of Beach Walk, including the public restroom entries.
4 t. As shown on pians dated May 16, 2006, the fottowing design elements are
required: an enclosed picnic area adjacent to pooL
42. InstaJlation of security cameras shall be requued on site prior to issuance of
Certificate of Occupancy.
44. The operation shall at all times be conducted in a manner not detrimental to
surrounding properties or residents by reason of lights, noise, activities, parking or other actions.
54. The operator shall direct guests visiting the site for meetings or social functions to
park their vehicles in the central 1ot befare use of the south or north parking tots.
55. The site east of the Beach Walk, and the public restrooms, as labeled on the plans
dated May 16, 2006 shall close at dark year round except for booked uses.
58. A minimum I S" x 12'' sign shall be posted at each parking lot requesting patrons
exit the site in a manner that will not disturb nearby residential neighborhoods. This information
shall also be provided in all marketing materials that are prepared for rental of facilities on the
site for meetings and social functions.
60. The project shall at all times comply with the provisions of the Noise Ordinance
(SMMC Chapter 4. ] 2) unless more restrictive conditions are imposed by this permit.
62. Exterior building, parking lot and landscape lighting shall be designed to shed
light pools on the project site to enhance safety. All outdoor lighting shall be shielded and
directed downward, and have sharp cutoff qualities at property lines to minimize light and glare
impacts.
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63. Architectural lighting shall be provided to the extent necessary to highlight
architectural elements. Security lighting shall be installed as reyuired to provide a secure
environment for users of the site.
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EXHIBIT B
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CONDITIONS OF APPROVAL - 415 PCH
EXHIBIT B
Category 2: Conditions shall be in pface for at least 7 1/Z years from Certificate of
Occupancy
38. T-2 Off-Site Parking. If evenis are scheduled during peak summer beach days
(Mondays -Thursdays during June through September 1 PM - 4 PM and Fridays - Sundays
during June tluough September 10 AM - 6 PM), and during other peak beach days (Saturday and ~
Sunday during October, March, April, and May, 10 AM - 6 PM), the party booking the event
shall secure off-site parking within 5 miles of the project site for the guests with a shuttle bus `
system to transport them to the site, unless the off-site parking is located within walking-distance
of the site, and shall submit a T,ransportation and Parking Management Plan (Plan) to the
operator of the site prior to issuance of a permit for use of the facility. The Plan shall include a ~
description of the methodology of notifying guests of the location for the shuttle, if determined
by the City to be needed; shall provide information regarding the number of guests and parking
spaces needed to meet this demand; and shall include evidence demonstrating that 1) pre-paid
parking has been secured; and 2) pre-paid shuttle service, if needed, has been hired between the
site and the off-site parking lot.
43. The site will be staffed with on-site personnel year-round including daytime
ranger staffing at peak use periods and night-time security staffing.
45. The size of individual meeting rooms shall not exceed 2,000 square feet.
46. A priority reservation system shall be established at peak use periods for use of
the public pool and picnic area as noted on the plans dated May 16, 2006.
47. Parking lots shall close at dark for general public parking but remain open and
available for event parking only. Parking lots will be staffed during events and parking permits
shatl be issued to event guests:
48. On site events shall end no later than i0 pm weekdays and 11 pm on Saturdays
and Sundays, with parking lots closing no later than 11 pm weekdays and midnight on:Saturdays
and Sundays.
49. Booked social functions or meetings where the primary activity includes sit-down
meal service shall be limited to a total of 2,000 square feet at one time. Food service that is
incidenta] to meetings or social functions shall be exempt from this requirement. The existing
restaurant on-site is exempt from this requirement.
50. Organized food service shall be provided by on-site concessionaire and approved
offsite caterers under contract with fhe City of Santa Monica.
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51. Alcohol use shall be resficted to beer and wine only; staffed bar service only
(caterer permit), for booked indoor events only; service of alcohol is required to end %z hour
before end of events.
52. No outside furniture rentalspermitted for special functions or meetings. Furniture
to be proyided by site operator.
53. Amplified music shall be permitted outdoors during City sponsored day-time
events only.
56. During social functions staff shall be provided to patrol tYie premises east of the
Beach Walk and including the parking lots to ensure that guests are not disruptive to adjoining
residential properties and their residents.
57. The operator shall prohibit loitering and control noisy guests leaving the site.
59. No exterior activities such as deliveries, trash disposal, or other maintenance `
activities, except in the case of an emergency shall be conducted between 11 prn and 7 am seven
days per week.
65. Truck deliveries io the site shall be required to occur outside of the a.m. and p.m.
peak hours, except in the case of an emergency.
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EXHIBIT C
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RELEASE OF CLAIMS AND COVENANT OF NON-OPPOSITION
Pursuant to and in consideration of 1he Settlement Agreement effective as of September
, 2006, by and among the Palisades Beach Property Owners Assn., Inc., Jonathan Ornstein,
and the City of Santa Monica ("Settlement Agreement"), and with all defined terms herein
having the same meanings used in the Settlement Agreement, I,~ ,
agree as follows: ~.
1. I hereby irrevocably and unconditionally release, acquit, and forever dischazge the
City of Santa Monica, and each of its agents, representatives, elected officials, employees,
officers, directors, attorneys, and administrators, from any and ~ll charges, complaints; claims,
grievances, liabilities, damages, actions, causes of action, suits, appeals, rights, demands, costs,
fees, losses, debts and expenses, of any nature whatsoever, known or unknown, that were alleged
or asserted in the action titled Palisades Beach Property Owners Assn., Inc.; et al. u City of
Santa Monica, et al., Los Angeles County Superior Court Case No. BS103819 and/or related to
the Project or to the Project Approvals and that arose on or before the Effective Date of the
Settlement Ageement. ~
2. I covenant not to: (a) sue, bring any lawsuit in connection with, challenge or
contest, administratively or judicially, directly or indirectly, or to seek to hinder in any way
whatsoever, whether by litigation, public opposition, petition to government authorities, or
otherwise, the Project and any Project Approvals; and (b) assist or provide cooperation at any
time, direct or indirect, by myself or through my agents or my attorneys after the date hereof, by
encouragement, the supplying of information or testimony (except under compulsion of
subpoena), or financial support, or any other support, to persons who sue, challenge, or contest
the Project or the Project Approvals. '
3. This Release of Claims and Covenant of Non-Opposition shall not diminish in
any way my right to enforce those rnatters that are referred to as being enforceable by "any
person" in Paragraphs 1 and 2 of the Settlement Agreement.
September _, 2006
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