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HomeMy WebLinkAboutBlue Sky v. Robert Schult_Settlement Agreement _Fully ExecuSETTLEMENT AGREEMENT This Settlement Agreement (the “Agreement”) is entered into as of February 29, 2024 by and between, on the one hand, BLUE SKY NPB, LLC, a Nevada Limited Liability Company and 1322 BALBOA PARTNERS, LLC, a California Limited Liability Company, (collectively, “Plaintiffs”), and, on the other hand, ROBERT SCHULT, an individual (“Schult”). This Agreement is intended by the Parties hereto to and shall settle, fully and finally, the disputes between them as discussed herein. The parties to this Agreement are referred to herein collectively as the “Parties” and individually as a “Party.” RECITALS A. WHEREAS, on or about June 23, 2023, Plaintiffs filed a lawsuit in the Superior Court of the State of California, County of Orange, 30-2023-01333188-CU-PO-CJC (the “Action”), against Schult and the City of Newport Beach Harbor Department. B. WHEREAS, Plaintiffs’ complaint in the Action (“Complaint”) alleges various claims relating to the use of adjacent docks that are owned by Plaintiffs and Schult, respectively. Schult owns the property and dock located at 1320 E. Balboa Blvd. (‘ 1320 E. Balboa Blvd. ). 1322 Balboa Partners, LLC owns the property located at 1322 E. Balboa Blvd. (“1322 E. Balboa Blvd.”). Blue Sky NPB, LLC owns the property located at 1324 E. Balboa Blvd. (“1324 E. Balboa Blvd.”) Plaintiffs jointly own and use a dock adjacent to the 1322 E. Balboa Blvd, property ( 1322- 24 E. Balboa Blvd.”); C. WHEREAS, the Parties agree that further litigation of the issues raised in the Action is not a productive or efficient use of the Parties’ time and resources and, therefore, have agreed to resolve the Action pursuant to the terms set forth below. Now, the Parties wish to resolve all outstanding issues existing between them at this time that relate to the facts and circumstances underlying the Action, as more fully set forth herein. To that end, the Parties have entered into this Agreement to formally memorialize the terms of the settlement entered. AGREEMENT NOW, THEREFORE, in reliance on the foregoing recitals (which are hereby incorporated by reference into this Agreement), and in consideration of the mutual understandings contained in this Agreement, and other good valuable, and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. Confirmation of Recitals. The Parties hereby represent and warrant that the factual statements made in the above Recitals are true and accurate. 2. Resolution of Claims. The Parties agree that further litigation of the issues raised in this Action is not a productive or efficient use of the Parties’ time and resources, therefore, have agreed to resolve the Action pursuant to the term set forth below. 3. Parties to Bear Their Own Costs, Fees, and Expenses. All Parties shall bear their own attorneys’ fees, costs, and litigation expenses in relation to the Action, and Schult shall not pay or be liable for any payment to Plaintiffs in relation to the Action. Schult likewise hereby -1- waives and releases any claim for attorneys’ fees, court costs, or litigation expenses that he may have against Plaintiffs relating to the Action. 4. Obligations of the Parties. In connection with this Agreement, the Parties agree as follows: a. Any vessel moored on dock floats at both 1320 E. Balboa Blvd, and the west side of 1322-24 E. Balboa Blvd, shall not exceed a beam of 10’ 7” or length over all (“LOA”) of 31’. LOA shall mean the length overall as published by the manufacturer of the particular vessel. Projections from the hull such as outboard engines, inboard/outboard drives, swim steps, outboard rudders, davits, or bowsprits shall not be included in such 31 ’ LOA provided that such projections are at least 24” inside the beam on both port and starboard sides. b. Any vessel moored on the west side of the dock float at 1322-24 E. Balboa Blvd, shall be moored as close as reasonably possible to the most landward end of the float approved by the Coastal Commission in 2014 and generally not less than 5’ from the water end of that float. c. No Party shall object to a rental or lease of the 1322 E. Balboa Blvd, property which includes in the lease agreement the terms of this Agreement as it relates to the mooring of a vessel. d. A visiting vessel to 1322 E. Balboa Blvd, may be moored on the west side of the dock float as far as the end of the 38’ dock float, provided that it does not remain moored to the dock for more than 6 hours. e. At any time that it may be necessary to temporarily move a vessel at 1320 E. Balboa Blvd., or at 1322 E. Balboa Blvd., to navigate safely to or from either dock, each party shall use reasonable diligence to temporarily move such vessel. f. Owners of 1322-24 E. Balboa Blvd, shall not extend, nor seek any permit to extend, the dock float farther toward the bay than presently exists, nor closer to the 1320 E. Balboa Blvd, property line and property line projection. Owners of the 1320 E. Balboa Blvd, dock shall not extend, nor seek any permit to extend the permitted float bayward farther than it presently exists, nor closer to the 1322 E. Balboa Blvd, property line and property line projection. g. This Agreement shall be recorded with the Orange County Recorder as a covenant on the title of 1320, 1322, and 1324 E. Balboa Blvd. h. Owner of 1320 E. Balboa Blvd, consents to the encroachment over its property line and property line projection for any vessel moored on the dock float at 1322-24 E. Balboa Blvd, to the extent the dock float and the vessel are moored in compliance with the terms of this agreement. -2- 5. Contingency. The Parties acknowledge that this Agreement is contingent upon the City of Newport Beach incorporating the terms of Paragraph 4 hereof into the dock float permits for 1320 E. Balboa Blvd, and 1322-1324 E. Balboa Blvd. 6. Dismissal of Lawsuit. Within ten (10) days of full execution of this Agreement, the Plaintiffs shall cause a Request for Dismissal of the Action, with Prejudice, as to all Defendants to be filed with the Clerk of the Superior Court. 7. Violation of Agreement; Attorneys Fees. In the event of a violation of the terms of this Agreement, the Parties agree to provide notice in writing to the alleged violating party of the specific alleged violation of the Agreement and provide five (5) calendar days to correct the violation prior to reporting the alleged violation to the City/Harbormaster. The Parties further agree to report any alleged violation of the terms of this Agreement to the City/Harbormaster for resolution after providing written notice pursuant to this paragraph and before resorting to court action. If any of the Parties bring an action or other proceeding against the other for the enforcement of, or seek a declaration as to, or assert by way of defense, any term or provision of this Agreement, there shall be an award of reasonable attorneys’ fees and costs to the prevailing party or parties, as the case may be. 8. Successors and Assigns. This Agreement, and all of the terms and provisions hereof, shall be binding upon, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns. 9. Knowing and Voluntary. The Parties specifically represent that, prior to signing this Agreement, they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties further specifically represent that, prior to signing this Agreement, they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 1 o. Entire Agreement. This Agreement constitutes the entire contract between the owners of 1320, 1322, and 1324 E. Balboa Blvd pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, contracts, understandings, negotiations and discussions, whether written or oral, of the owners of 1320, 1322, and 1324 E. Balboa Blvd, and there are no representations, warranties or other agreements between the Parties in connection with the subject matter hereof, except as specifically set forth herein. The representations and warranties contained herein shall survive the entering into of this Agreement. ] 1. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 12. Singular and Plural. Whenever required by the context, as used in this Agreement, the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. -3- 13. Severability. Should any portion, word, clause, phrase, sentence, or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 14. Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 15. Waiver. Failure to insist on compliance with any term, covenant, or condition contained in this Agreement shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. 16. Representations and Warranties. The Parties represent and warrant to and agree with each other as follows: a. Each Party has not assigned or transferred to any party not named herein any released matter or claim based upon, or arising out of, or pertaining to any of the matters, facts, events, or circumstances addressed in the Action and this Agreement, and that each Party possesses the power and authority to bind and do so bind themselves to the terms of this Agreement. b. Each Party has had an opportunity to seek the benefit of independent legal counsel regarding the substance of this Agreement and the claims released herein. c. Except as expressly set forth in this Agreement, in connection with the execution of this Agreement or the drafting of the settlement provided for herein, no Party has relied upon any statement, representation, or promise of any other Party or their attorney not expressly contained herein. d. This Agreement is intended to be final and binding upon the Parties and is further intended to be effective as a full and final accord and satisfaction among them regardless of any claims of fraud, misrepresentation, concealment of fact, mistake of fact or law, duress or any other circumstances whatsoever. Each Party relies upon the finality of this Agreement as a material factor inducing that Party's execution of this Agreement. e. The terms of this Agreement are contractual and are the result of negotiations among the Parties. Each Party has cooperated in the drafting and preparation of this Agreement. Accordingly, in any construction to be made of this Agreement, the same shall not be construed against any Party. 17. Consideration. The Parties hereby expressly acknowledge and agree that each and every term and condition of this Agreement constitutes a material part of the bargained for consideration without which this Agreement would not have been executed, and is a material part of the Agreement. 18. Time is of the Essence. Time is of the essence for performance by all parties to -4- this Agreement of the time deadlines set forth herein so that the Agreement will be consummated in a timely fashion and without unreasonable delay. 19. Interpretation. This Agreement is the result of negotiations between the Parties and shall be construed fairly and not in favor of or against any Party, regardless of which Party or Parties drafted or participated in the drafting of its terms. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and effective under applicable law. 20. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced, and governed under the laws of said State without giving effect to conflicts of laws principles. 21. Modification. This Agreement shall not be modified, amended or supplemented unless such modifications, amendments, or supplements are in writing and signed by each Party to this Agreement. 22. Notice. Notices hereunder shall be in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by electronic mail, or (d) by a commercial overnight courier that guarantees next business day delivery such Notices shall be addressed as follows: To 1320 E. Balboa Blvd;Robert Schult 1320 E. Balboa Blvd. Newport Beach, CA 92661 Email: rwschult@gmail.com With copy to:Sherman Stacey GAINES & STACEY LLP 3197-A Airport Loop Costa Mesa, California 92626 Email: sstacey@gaineslaw.com To 1322 E. Balboa Blvd:1322 BALBOA PARTNERS, LLC 1322 E. Balboa Blvd. Newport Beach, CA 92661 Email: omalleymiller@gmail.com -5- With a copy to:O'Malley and Ann Miller 448 16th Street, Santa Monica, CA 90402 With a copy to:Christopher Steckbauer NEWMEYER DILLION, LLP 895 Dove Street, 2nd Floor Newport Beach, CA 92660 Email: chris.steckbauer@ndlf.com 1324 E. Balboa Blvd:BLUE SKY NPB, LLC 1324 E. Balboa Blvd. Newport Beach, CA 92661 Email: tlebeau@accretiverealty.com With a copy to:Christopher Steckbauer NEWMEYER DILLION, LLP 895 Dove Street, 2nd Floor Newport Beach, CA 92660 Email: chris.steckbauer@ndlf.com IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. [Signatures on Next Page} -6- DATED: February ^0,2024 1322 BALBOA PARTNERS, LLC, a California Limited Liability Company DATED: EebrtSV , 2024 BLUE SKY NPB, LLC, a Nevada Limited Liability Company DATED: February ,2024 -7-