B. The County has also certified an additional environmental impact report known as EIR 573. The adequacy of EIR 573 is at issue in litigation brought by ETRPA. This litigation ("the EIR 573 action") is currently pending before the San Diego County Superior Court. El Toro Reuse Planning Authority et al. v. County of Orange et al., No. GIC 785764.

C. ETRPA and Paul D. Eckles ("Eckles") have filed litigation against the County involving the validity of a "public information" program undertaken by the County. In that action, the Orange County Regional Airport Authority ("OCRAA"), John M. Wagner ("Wagner"), Amies Communications ("Amies") and Townsend Raimundo Besler & Usher ("Townsend") have been named as real parties in interest. This litigation is currently pending before the San Diego County Superior Court. El Toro Reuse Planning Authority and Paul D. Eckles v. Board of Supervisors et al., No. GIC 776645 ("the Eckles Action"). Bart Garry, an individual, filed a second action against the City of Irvine and the County, raising issues concerning the validity of certain spending by the City of Irvine and the County. Garry v. City of Irvine et al., San Diego Superior Court No. 01CC06462 ("the Garry Action"). The Garry Action includes a cross-complaint brought by the County against ETRPA and the Cities of Laguna Niguel, Lake Forest, Laguna Hills, Laguna Beach, Mission Viejo, Laguna Woods, Aliso Viejo, Rancho Santa Margarita, and Dana Point (collectively, "the Cities"), and the City of Irvine ("Irvine"), involving the validity of "public information" programs undertaken by ETRPA, Irvine and several of the Cities, and cross-complaints brought by ETRPA, the Cities, and Irvine against the County and OCRAA on related issues. The Eckles Action and the Garry Action were subsequently consolidated, as San Diego Superior Court No. GIC 776645, and are referred to herein collectively as "the public information cases".

D. Each of the parties to this Settlement Agreement desires to enter into a settlement agreement as to all of the litigation described above, without any admission by any party as to any issue relating to or arising from these cases.

In order to settle each of these cases, the parties therefore agree as follows:
 
 

2. The EIR 563 Appellants and the County shall jointly request that the Court of Appeal stay all further proceedings relating to the EIR 563 appeal. ETRPA and the County shall cooperate to attempt to achieve the same result by other alternative means in the event that the Court of Appeal denies this joint request or proposes some alternative form of addressing the appeal.

3. ETRPA and the County shall jointly request that the San Diego Superior Court stay all further proceedings relating to the EIR 573 litigation. In the event that the Court requires that the EIR 573 litigation be dismissed or prosecuted (i.e., not stayed), then the County agrees that ETRPA and only ETRPA, shall have the right to refile its challenge to EIR 573, and the County will waive the existing statute of limitations, as to ETRPA only, so long as ETRPA refiles its challenge to EIR 573 within thirty (30) days of actual notice or knowledge that the County has taken action toward aviation reuse of the MCAS El Toro based upon EIR 573.

4. ETRPA, Eckles, the County, the Cities and Irvine shall each dismiss any and all complaints and cross-complaints that they have filed in the public information cases and all claims against each party thereto, with prejudice.

5. The County’s Board of Supervisors, acting as the local redevelopment authority, shall adopt the Resolution attached hereto as Exhibit A.

6. Each party to the EIR 563 appeal, the EIR 573 action, and the public information cases shall each bear its, their or his own costs and attorney’s fees. Each party to each of these cases waives any right to seek costs or attorney’s fees from any other party to the action.

7. The Cities, as well as each of their agents, representatives, attorneys, successors and assigns, waive and release all rights to participate in, any form of legal action, and release any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against the County of Orange, the Orange County Board of Supervisors, and every person acting on their behalf, with regard to the issues raised in the public information cases. The Cities acknowledge and agree that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to the County’s initiation or prosecution of its cross-complaint.

8. ETRPA, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against the County of Orange, the Orange County Board of Supervisors, and every person acting on their behalf, with regard to the issues raised in the public information cases. ETRPA acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to the County’s initiation or prosecution of its cross-complaint.

9. Eckles, as well as his agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against the County of Orange, the Orange County Board of Supervisors, and every person acting on their behalf, with regard to the issues raised in the public information cases. Eckles acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to the County’s initiation or prosecution of its cross-complaint.

10. ETRPA, Eckles, and the Cities, as well as their agents, representatives, attorneys, successors and assigns, waive and release all rights to participate in, any form of legal action, and release any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against OCRAA, Wagner, Amies and Townsend, and every person acting on their, his or its behalf, with regard to the issues raised in the public information cases. ETRPA, Eckles and the Cities acknowledge and agree that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation.

11. The County, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against ETRPA, Eckles, the Cities, and Irvine, and every person acting on their or his behalf, with regard to the issues raised in the public information cases. The County acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to ETRPA’s, Eckles’, the Cities’, or Irvine’s initiation or prosecution of their respective complaints and cross-complaints in the public information cases.

12. OCRAA, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against ETRPA, Eckles, the Cities and Irvine, and every person acting on their or his behalf, with regard to the issues raised in the public information cases. OCRAA acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to ETRPA’s, Eckles’, the Cities’, or Irvine’s initiation or prosecution of their respective complaints and cross-complaints in the public information cases.

13. Wagner, as well as his agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against ETRPA, Eckles, the Cities and Irvine , and every person acting on their or his behalf, with regard to the issues raised in the public information cases. Wagner acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including but not limited to any issues relating to ETRPA’s, Eckles’, the Cities’, or the Irvine’s initiation or prosecution of their respective complaints and cross-complaints in the public information cases.

14. Amies, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against ETRPA, Eckles, the Cities and Irvine, and every person acting on their or his behalf, with regard to the issues raised in the public information cases. Amies acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including any issues relating to ETRPA’s, Eckles’, the Cities’, or Irvine’s initiation or prosecution of their respective complaints and cross-complaints in the public information cases.

15. Townsend, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against ETRPA, Eckles, the Cities and Irvine, and every person acting on their or his behalf, with regard to the issues raised in the public information cases. Townsend acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including any issues relating to ETRPA’s, Eckles’, the Cities’, or Irvine’s initiation or prosecution of initiation or prosecution of their respective complaints and cross-complaints in the public information cases.

16. Irvine, as well as its agents, representatives, attorneys, successors and assigns, waives and releases all rights to participate in, any form of legal action, and releases any and all claims, demands, liens, causes of action, and/or rights in any form (including but not limited to claims for damages, penalties, equitable relief and/or attorneys’ fees ) against every other party to the public information case, with regard to the issues raised in the public information cases. Irvine acknowledges and agrees that this Settlement Agreement is a full, final and binding resolution of the issues raised in that litigation, including any issues relating to the County’s initiation or prosecution of its cross-complaint.

17. This Settlement Agreement may be executed in counterparts and/or by facsimile, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.

18. This Agreement and all transactions under this Agreement shall be governed exclusively by and construed in accordance with substantive California law.

19. This Agreement is the final, entire, and complete Agreement of the parties with respect to the subject matter of this Agreement and may be modified or amended only by a written agreement signed by all the parties to this Agreement. No verbal agreement or conversation with any officer or employee of any party shall affect or modify in any way the terms and conditions of this Agreement.

20. The parties hereto each represent, warrant and agree that each has receive independent legal advice from their respective attorneys with respect to the terms of the settlement provided for in this Agreement and with respect to the advisability of entering into this Agreement.

21. Each of the signatories to this Agreement represents and warrants that he or she is authorized (pursuant to Government Code Section 949, as applicable, and otherwise) to execute and sign this Agreement on behalf of the parties hereto for whom they are purporting to execute the Agreement, and that each of the parties is bound to the terms and provisions of this Agreement as a result of his or her signature below. Each of the signatories hereto also acknowledges that each of the other parties to this Agreement are relying, in entering into this Agreement, on this representation and warranty by the signatories of their authority to execute and bind the respective parties whom they represent.

22. WAIVER OF CIVIL CODE SECTION 1542:

The parties understand and agree that this Settlement Agreement includes all claims, both known and unknown. The parties acknowledge that they expressly waive any and all rights that they have, or may have with respect to the matters that are the subject of the releases included herein, under California Civil Code Section 1542, which provides as follows:

BENJAMIN P. DEMAYO County Counsel
MARIANNE VAN RIPER, Deputy County Counsel
Attorneys for the County of Orange and the Board of Supervisors of Orange County

BRADLEY W. HERTZ, REED & DAVIDSON
Attorneys for Orange County Regional Airport Authority,  Townsend Raimundo, Besler & Usher, and John M. Wagner

GARY S. MOBLEY
Attorneys for Amies Communications

JOEL S. KUPERBERG, RUTAN & TUCKER

Attorneys for the City of Irvine

WHEREAS, the County’s electorate on March 7, 2002 enacted Measure W, the Orange County Central Park and Nature Preserve Initiative;

WHEREAS, Measure W amends the County’s general plan with regard to the former El Toro Marine Corps Air Station ("El Toro") and precludes any use by the County of El Toro for aviation purposes;

WHEREAS, by Resolution No. LRA 96-01, dated December 6, 1996, the Orange County Board of Supervisors acting as the Local Redevelopment Authority certified EIR 563 with respect to a Community Reuse Plan for El Toro that envisioned use of El Toro for aviation purposes;

WHEREAS, by Resolution No. LRA 96-02, dated December 6, 1996, the Orange County Board of Supervisors acting as the Local Redevelopment Authority also adopted a Community Reuse Plan for El Toro that envisioned use of El Toro for aviation purposes;

WHEREAS, by Resolution No. 01-360, dated October 23, 2002, the Orange County Board of Supervisors acting as the Local Redevelopment Authority certified EIR 573 with respect to an Airport System Master Plan that envisioned use of El Toro for aviation purposes;

WHEREAS, by Resolution No. 01-361, dated October 23, 2001, the Orange County Board of Supervisors acting as the Local Redevelopment Authority also adopted an Airport System Master Plan that envisioned the use of El Toro for aviation purposes;

WHEREAS, Measure W prevents development by the County of El Toro for aviation purposes and thus precludes any further implementation by the County of Orange of Resolutions Nos. LRA 96-01, LRA 96-02, LRA 01-360 and LRA 01-361 with respect to any use of El Toro for aviation purposes;

WHEREAS, the Department of the Navy, in the exercise of its discretion, has announced that: (a) it will dispose of El Toro in a manner consistent with state and local land use plans, including Measure W; (b) the City of Irvine is currently planning the redevelopment of El Toro; (c) any aviation use of El Toro is thus not reasonably foreseeable, and accordingly the Navy will not convey El Toro for the aviation purposes specified in the Community Reuse Plan; and

WHEREAS, in light of all the circumstances the Orange County Board of Supervisors acting as the Local Redevelopment Authority has determined that it would not be a beneficial use of public resources for any public agency to continue to participate in litigation involving EIR 563 and EIR 573;

NOW BE IT THEREFORE RESOLVED THAT the Board of Supervisors acting as the Local Redevelopment Authority authorizes the County Counsel to stipulate to stay all pending litigation between ETPRA and the County regarding EIR 563 and EIR 573, or to enter into other stipulations regarding that litigation, including any tolling agreements and waivers of statutes of limitations, that may be necessary to effectively stay the litigation.