DISTRICT OF COLUMBIA COURT OF APPEALS. .C. PRESERVATION LEAGUE and COMMITTEE OF 100 ON THE FEDERAL CITY, Petitioners, v. THIRD CHURCH OF CHRIST, SCIENTIST, Nos. 09-AA-663, 09-AA-718 Cross-Petitioner, ) ) a ; 328 MAYOR OF THE DISTRICT OF COLUMBIA’S. ) fog 28g AGENT FOR HISTORIC PRESERVATION, Bo ohh ) m oO ae Respondent ) 2 wu Bea —__- —~ a egy a gs EPORT OF CROSS-PETITION! eae aa In compliance with this Court’s Order, filed October 13, 2010, Cross-Petitioner Third Church of Christ, Scientist, hereby advises the Court that, as described in the Consent Motion of ‘Third Church of Christ, Scientist For a 60-Day Stay of Proceedings, effective November 9, 2010, Petitioners, Cross-Petitioner and ICG 16" Street Associates LLC, the owner of the land'on which the landmarked buildings are located (“ICG Associates”), have entered into a Settlement Agreement, a copy of which is appended hereto an Exhibit A. Pursuant o 11 of the Settlement Agreement, Cross-Petitioner and ICG Associates are obligated to engage the District of Columbia and obtain the consent of the District of Columbia to the general approach to redevelopment outlined in the Settlement Agreement within ninety ' Petitioner The Committee of 100 on the Federal City, while not a party to the Settlement Agreement, has agreed that it will dismiss the Petition in this Cour, provided thatthe federal lawsuit (Third Church of Christ, Scientist v D.C. Historic Preservation Review Board, et al., Civil Action No. 08-1371-JR) is dismissed and the proposed legislation before the City Council is withdrawn. AAs evidence of the foregoing, a copy of the Resolution of the Trustees of ‘The Committee of 100 on the Federal City, détéd April 14, 2010, is appended hereto as Exhibit B.(90) days of the effective date, or by February 7, 2011. At that point, the Settlement Agreement anticipates longer term stays of both the federal lawsuit and the Petition for Review pending in this Court in order for the redevelopment approvals to be obtained. Cross-Petitioner will undertake to keep this Court informed of the progress of the discussions with the District of Columbia and to make an appropriate motion to enlarge the stay of the proceedings. Respectfully submitted, pow RY Beorge B/Keys, Ir. (HC) Jordan & Keys, PLLC 1400 16" Street, N.W. - Suite 710 Washington, D.C, 20036 (202) 483-8300 jar 292722)Certificate of Service Thereby certify that a copy of the foregoing Status Report of Cross-Petitioner in Nos. 09- AA-663 and 09-AA-718 was filed with the Clerk of the Court, D.C. Court of Appeals and has been mailed by first class, postage prepaid, on the 24" day of November 2010 to: ‘Thomas C. Papson, Esq. McKenna Long & Aldridge LLP 1900 K Street, N,W. Washington, D.C. 20006 Andrea C. Ferster, Esq. 2121 Ward Court, N.W. - 5° Floor Washington, D.C. 20037 James C. MeKay, Jr., Esq Office of the Solicitor General Office of the Attomey General for the District of Cohmbia 441 Fourth Street, N.W. - 6" Floor South Washington, D.C. 20001EXHIBIT A SETTLEMENT AGREEMENT. {THIS SETTLEMENT AGREEMENT between the D.C. Preservation League (DCPL") on the one hand, and Third Church of Christ, Seienist “Third Chureh") and ICG 6th Street Associates, LLC (‘1CG") on the other hand (DCPL, Third Church, and JC. collectively. the “Parties”), is made and entered into as of November 2, 2010. Recitals ‘This Settlement Agreement is made with reference to the following facts: The Third Chureb of Christ, Scientist complex, which includes both the Third Church of Christ, Scientist building at 900 16” Street, N.W. (*Chureh Building”) and the Christian Science Monitor Building at 910 16! Steet, N.W., Washington, D.C, (Monitor Building’), a Lot 41 in Square 185 (collectively “Third Church Complex”), is listed as an individual lencimark in the D.C. Inventory of Historie Sites. The parcel is located within the 16th Street Historie District, an historic district listed in the D.C. Inventory of Historie Sites Third Chureh filed a curently pending complaint in U.S. District Court for the District of Columbia, Civil Action No 08-1371-3R, challenging (3) the landmark designation of iis chose building on religious freedom grounds and (if) the Mayor's Agent Order in HPA 09-41 CMA Order") authorizing demolition of the chasch building on the condition that it First mnst abrain a building permit for @ replacement church (US, District Court Litigation”) DCPI. and the Comnntier of 100 on hie Federal City (“C100"), which oppesed entry nf the M.A. Ordey as parties in HPA-(9-141, have petitioned for review af the M.A. Orde: belore the D.C. Court of Appeals in Case No. 09-4.A-663. third Church filed a evussepetition fen review in Case No. 09-AA:718 challenging the condition in the M.A. Order, Case Nos. 0-AA 65 and 09 AA-718 are collectively retevied 10 as the “D.C. Court of Appeals Litigation Two pieces of lepislation relevant to this matter have been introduced betiore the 1. Comeit “Onc propast hill wont probit lapenaak designation oi houses of wosship it the qinerettion objects tthe fisting on seligiows feedum yrounds. ‘The other bill would exes the Third Church Cumples fiom the provisions of the D.C. Historie Lansdnerk and Histone Distriet Protection Aci (collectively “Proposed begishation”) HCG owns Lot 41 in Syuare 188, ‘Thin Church owns the Church Building located on } ot 4}. ‘Third Chureh teases from 1G the ground on which the Chasch Building is located, 1G ‘owns ihe Monitor Building JCG wishes to demolish the Church Building and the Monitor Buileing in their entirey in order to construct a new office building, parking garage. and new church on the site “The Panties have engaged in discussions to explore setilement of pending claims anc potential disputes concerning redevelopment of the site for a new church and office build The Pasties agreed to work together ta develop a set of terms o be adressed in n comprehensive setilememt agreementIn consideration of the promises, obligations, representations, and payments set forth herein, the sufficiency of which the Parties hereby acknowledge, this Settlement Agreement now sets forth the terms by which the Parties intend to be legally bound. Terms of Agreement Government Reviews of the Redevelopment Plan ICG may pursue, at its sole election, (i) the demolition of the Church Building and the Monitor Building on Lot 41; (i) the construction of a new office building with a density ‘of no more than 156,000 square feet of gross floor area (“GRA”) as defined in the District of Columbia Zoning Regulations on Lot 41; and (iii) the construction of a new church with a density of no more than 10,000 square feet of GFA on Lot 41 (demolition and new construction collectively referred to as the “Redevelopment Plan”). To effectuate the Redevelopment Plan, ICG shall seek: any required or discretionary approvals from the D.C. Zoning Commission (for a Planned Unit Development (“PUD”) and related zoning map amendment), the Mayor's Agent for Historic Preservation, or any other governmental agencies, boards or commissions; and any necessary legislative amendments to the Comprehensive Plan before the District of Columbia Council CPL, shall not oppose. directly or indirectly, the proposed Redevelopment Plan in any hearing or other proceeding before any governmental entity or agency. of in any public forum. If DCPL makes a statement that another party to this Settlement Agreement views as violating DCPL's obligation in this paragraph, or if any board member, staff, or committee member of DCPL purporting to speak for or as a vepresentative of DCPL makes a statement in any hearing, proceeding, or public forum thal another party to this Settlement Agreement views as inconsistent with DCP1.'s obligation under this paragraph, that pasty shall provide prompt witten notice to DCPL. Following DCPL's receipt of stich notice, DCPL shall cure the violation, if any, within 24 hours by issuing a written statement disavowing and/or correcting the prior statement, Nothing in this paragraph shall restrict representatives of DCPL from addressing the District of Columbia Council on matters that do not specifically affect the Redevelopment Plan 1CG and Third Chureh shall submit the Redevelopment Plan to DCPL’s standard review process for redevelopment af property located within an histevie distret listed in the D.C. Inventory of Histosic Sites and seek DCPL's approval through stich process. J£DCPL approves the Redevelopment Plan as not incompatible with the character of the 6th Street Historie District, then DCPL. shail support the Redevelopment Plan before any governmeniall agency reviewing the plan, through either written or oral statements. in addition: 8. DCPL shall fumish copies of any written statements to ICG and Third Church, or advise ICG and Third Chureh of the scope and nature of any oral statements to be made, 24 hours in advance of DCPL. filing or presenting such statements. If, afier receiving such a written statement or being advised of the scope and nature of such an oral statement, any party to this Settlement Agreement believes that the 3 CPL ICG 4 Thed rec Setomert serene‘written or oral statement does not satisfy DCPL's obligation of support as described in this paragraph, that party shall notify DCPL prior to any proceedings before any governmental entity or agency at which DCPL is expected to support the Redevelopment Plan, specifying the grounds for the party’s position, &. ICG shall notify DCPL of any proceedings before a governmental entity or agency at which DCPL is expected to support the Redevelopment Plan at least 21 i calendar days before the date of the proceedings. If the governmental entity or agency provides less than 21 days notice ofits proceeding, then ICG will not DCPL as soon as notice of the proceeding is provided. ¢. If DCPL approves the Redevelopment Plan but fails to support it as described in : this paragraph afier due notice from ICG, then DCPL shall not be entitled to the payments described in Paragraph 18 of this Settlement Agreement, 5. DCPL agrees nol to oppose, directly or indirectly, before any governmental entity or agency, an addition to the World Center Building at 1600 K Steet (currently owned by ICG), provided: a. The addition does not exceed a height of 90 ft along the 16" Sireet property line to a depth of 35 feet and 130 feet thereafter b. The existing penthouse structure of the World Center Building is reconfigured or removed so it no longer intrudes upon the 35-foot setback from the 16th Street property ©. ICG submits the plati for the addition fo DCPL’s standard review process for redevelopment of property Jocated within an established historic d d. DCPI. approves the plan for the addition as not incompatible with the character of the 16" Street Historie District 6 ICG and/or Third Church shall noi commence demolition of the Church Building or the Monitor Building unless and until 1G andor ‘Third Chureb establish, through the presentation of written evidence DCPL. that 1CG andor Third Church has: 8. Obtained sufficient equi Redevelopment Plan: ty and/or debi financing to cover all costs of the b. Closed such equity and/or debt financing: ©. Obiained excavation, sheeting & shoring, and foundation to grade permits from the District of Columbia: d. Obtained a new construction permit from the Distriet of Columbia; and ¢. Deposited the full amount of funding into the Preservation Fund as deseribed in Paragraph 18 of this Settlement Agreement. 3 DEP, 16 8 Tn Char Seem AgveemensStay of Proceedings 1 Settlement with the Di "i Following execution of the Settlement Agreement, DCPL and Third Church shall seek consent of the District of Columbia and C100 to file an unopposed motion for a stay of the D.C. Court of Appeals litigation for a period of twelve months. If the District of Cohumbia is unwilling to consent to a stay of that length, or if the Court is unwilling to approve a stay of that length, DCPL and Third Church shall seek consents of the District of Columbia and C100 to an initial stay of a shorter period, with the parties to seek extensions of that stay at appropriate intervals, As necessary, Third Church shall seek a continuance of the existing stay of the U.S, District Court Litigation, Ifthe Parties are unable to obtain the stays of proceedings identified in the preceding paragraphs, then any party to this Settlement Agreement may, at its sole election, {terminate this Settlement Agreement. If the Settlement Agreement is terminated, the parties shall no longer have any rights or obligations thereunder Following execution of this Settlement Agreement, Third Church shall suspend any efforts, both direct and indirect, to advocate for the Proposed Legislation and shall not seek reintroduction of the Proposed Leuislation in the new session of the D.C. Council commencing in January 2011 Following execution of this Settlement Agreement, ICG and Third Church shall promptly seek a seitlement with the Wistrict of Columbia that, among other things, endorses the general approach for the Redevelopment Plan and provides an entitlement process by which to achieve the Redevelopment Plan (“DC Settlement”). 1f ICG and Thiré Church and the District of Columbia cannot reach settlement within 90 days afier execution of this Settlement Agreement, 1CG and Third Church may, at their sole election, terminate this Settlement Agreement or establish « new timeframe for a settlement with the District of Columbia. 1G and/or Third Church shall notify DCPL. in writing of its election of any new timeframe within 30 days after the expiration of the 90-day period. 1 the Settlement Agreement is terminated, the parties shall no longer have any rights or obligations thereunder Upon reaching a settlement with the District of Cohumbia, ICG and Third Church shall begin the zoning and historic preservation review process for the Redevelopment Plan, If 2oning, historic preservation or other entitlement approvals are not obtained within twelve months after initiation of the entitlement process, ICG and Third Church may, at their sole election, terminate the Settlement Agreement, or establish a new timeframe for obtaining the necessary entitlements. ICG andlor Third Church shall notify DCPI. in vriting of its election and any new timeframe within 60 days before the expiration of the twelve-month period. If the Settlement Agreement is terminated, the Parties shall no Jonger have any rights or obligations thereunder i DCPL.1C6 4 Td Cech SeadementAevenens13 Undertakings of the 14 if the Settlement Agreement is terminated for any of the reasons stated herein, the Parties ‘may, at their respective elections, resume the D.C. Court of Appeals Litigation, the U.S. Distriet Court Litigation, and the Proposed Legislation, -s Following Demolition Within three business days before commencement of demolition, Third Church agrees to formally request in writing the withdrawal of the Proposed Legislation before the D.C. Council, if the Proposed Legislation has not already lapsed due to the ending of the current Jegislative session. Following commencement of demolition, Third Church agrees not to initiate or sponsor legislation concerning the issue of religious institutions” rights as they relate to historic preservation practices for a term of 25 years, unless an application for historic landmark has been made with respect to property owned or leased by Third Church. The DCP1. Board shall approve the following policy statement: “When the DC Preservation League (DCPL) decides to file a landmark application for a property for which no alteration or demolition permit applications are pending, itis the policy of DCPL to notify the property owner 30 days prior to filing the landmark application and to coffer to discuss the landmarking process with the property owner, Ifthe property owner identifies an issue related to fumetion or operation of the property that landmarking may negatively affect, DCPL will attempt to work with the property owner fo resolve such issue. CPL recognizes that structures, including historie structures, may often contain expressive elements, andl convey « message intended by the entity occupying such structure, . Within four weeks following receipt of construction permits for the Redevelopment Plan, JCG shall contribute a fixed amount of $450,000 into a fund established by DCPL. 0 support Mid-Century Modern and religious architectural programming, research, andlor granis (ihe “Preservation Fund”), At the same time. 1CG shall in addition to the $450,000 also contribute into the Preservation Fund an amount equal to $2.00 per pross square foot of office building GFA of the Redevelopment Plan approved for construction. DCPL shall administer use of the Preservation Fund. For Preservation Fund allocations in excess of $25,000, DCPL shall consult with a representative from ICG, and, solely in the case of religious architecture programming, research, and/or grants, a designee of Third Church. No Preservation Fund allocations shail be used in direct support of a Jandmark application to which the owner of the proposed landmark has objected. DCPL. shall receive an administrative fee equal to Twenty Percent (20%) of the total Preservation Fund amount. The fee shall be drawn trom the Preservation Fund evenly over a five-year period. DCPL shall recognize ICG's sponsorship of the Preservation Pund by identifying ICG as a top-level sponsor for all programs, grants, publications, and events to which the fund contributes, 5 BOP 106 6 Tid rch Sentomont eranDismissals of Pending Litigation 19, Upon 1CG"s and/or Third Church's commencement of demolition in accordance with the terms of this Settlement Agreement: a, Third Church and DCPL shail file a motion for dismissal with prejudice in the D.C, Court of Appeals Litigation and seek the consent of the other parties to that proceeding to such a dismissal; and b. Upon dismissal of the D.C. Court of Appeals Litigation, Third Church shal file a ‘motion for dismissal with prejudice of all claims pending before the U.S. Distriet Court; provided, however, that the motion shall not impair the ability of Third Church to obtain costs and other reimbursements from the District of Columbia, Representations to Public 20. _ Inthe event any Party to this Settlement Agreement is asked about or otherwise discusses the terms of this Settlement Agreement in any public forum, that Party shall express its full support for the terms of this Settlement Agreement, and shall generally represent thet this Settlement Agreement isa fair and mutually satisfactory resolution to the dispute among the Parties. In doing so, DCPL. also shall not make any statements inconsistent with its obligations under Paragraphs 2, 4, and 5 of this Settlement Agreement. If any Party to this Settlement Agreement, or any board member, officer, employee. or (in the case of DCPL. and Thisel Church) committee member of Party makes a statement concerning this Settlement Agseement in any public forum that another Party views as incensisiewi with any obligation under this paragraph, that Party shall provide prompt written notice to the offending Party, Following receipt of such notice, the offending Panty shall cure the violation. if any, within 24 hours by issuing a writien statement disavowing and/or correcting the prior statement.JCG and Third Church may express full support for the Redevelopment Plan regardless of whether DCPL has approved the Redevelopment Plan in accordance with Paragraph 4. 21. This Seulement Agreement constitutes a single. integrated contract expressing the entire understanding between and among the Parties with respect 10 the subject matter hereof superseding all negotiations and prior and/or contemporaneous discussions, communications, and contracts of agreement, whether oral or written. The Parties hereby acknowledge that there have been no representations, warranties, covenants or understandings other than those expressly set forth herein. This Settlement Agreement, of any part hereof. may not be amended, modified, changed, waived, or abrogated except in writing executed by all Parties identified herein. Binding Effect 22. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties and their executors, administrators, personal representatives, heirs, successors, assigns, 6 CPI. 1CG A Taint Cch Soestaffiliates, subsidiaries, and parent corporations, and any new owner(s) of the Third Chureh Complex. Authority to Bind Party 23, Each person signing this Settlement Agreement on behalf of a Party represents and warrants that he or she has the full right and authority to enter into this Settlement ‘Agreement on behalf of such Party to fully bind such Party to the terms and obligations of this Settlement Agreement. Construction of Agreement 24. Each Party acknowledges that it has had the opportunity to negotiate modifications to the Janguage of this Settlement Agreement. Accordingly, each Party agrees that in any dispute regarding the interpretation or construction of this Settlement Agreement, no presumption will operate in favor of or against any party hereto by virtue of its role in drafting or not drafting the terms and conditions set forth herein, Choice of Law 25. This Settlement Agreement shall be construed and enforced in accordance with the laws of the District of Columbia and applicable federal law. Any dispute regarding any term of this Settlement Agreement shall be construed under and governed by the laws of the District of Columbia, Choice of Venue 26. Any action at law, cuit in equity. or other juclicial proceeding to enforce the terms of this Settlement Agreement shal! be bruh, if at all, in the Superior Court of the District of Columbia, other than any claims brought by Third Chureb under federal law. Each party acknowledges the right of the Superior Cout of the District of Columbia to assert personal jurisdiction in any: such action over the Parties, and each of these Parties waive and release now and Yorever any defense that might otherwise exist to the assertion af personal jurisdiction by the Superior Count of the District of Columbia, other than any laine brought by Third Church under federal law ‘The Parties acknowledge and agree that this Settlement Agreement is the result of « settlement and compromise. This Settlement Agreement shall not be used in any proceeding for any purpose, except to enforce the provisions of this Settlement Agreement. The negotiations and statements made in connection herewith shall not be deemed to be admissions by any Party of any fact or liability and are not admissible in any proceeding, except to enforce any provision of this Settlement Agreement, 7 CPE CG 4 Thind Chmch Semen AesemensNotice 28. The Parties agree that, should circumstances occur in which one Party believes that there has been a violation of any provision of this Settlement Agreement by the other Party, the Party who claims such violation must provide prompt written notice to the other Party ‘and must allow the other Party the opportunity to cure the breach or otherwise respond. Said notice must provide the circumstances of the alleged breach in sufficient detail to allow the Party receiving the notice to investigate the allegations in the notice and must allow thirty (30) days for that Party to respond concerning whether it will make efforts to ure the breach or otherwise respond. Should the Parties not be able to reach an ‘greement 2 t0 a cure within the thirty (30) day period, the Party who claims the alleged violation may then pursue legal action, Said notice and said thirty (30) day period is a condition precedent to pursuing any further action (legal or otherwise) pursuant to this Settlement Agreement, 29. Notices under this Settlement Agreement will be deemed sufficient if given by mail, addressed to the individuals specified below, or to such other individuals as the respective Parties may designate by notice from time to time. Notices so given will be effective upon receipt by the Party to which the notice is given, ; Headings 50. The headings used in this Settlement Agreement shall not be deemed to govern, limit, modify or in any manner affect the scope. meaning or intent of the provisions of this Settlement Agreement erability 31. Many provision or application of'@ provision of this Settlement Agreement is held to be Unconstitutional or otherwise invalid, the declaration of invalidity shall not affect other provisions or applications of the Setement Agreement which can be given effect without the invalid provision or application, and to this end the provisionsof the Settlement Agreement are decined severable rparts 32. This Settlement Agreement may be executed in countesparts, each of which constitutes aan original and all of which constitute one and the same Settlement Agreement WBEREFORE, the Parties execute this Settlement Agreement effective as of the date the last Party signs it [Signature pages follow] 8 DEPT ACE & Toi Chur Srloment AgreementD.C. PRESERVATION LEAGUE, ‘ By: __ Date: A fefecre Ti 9 DEPL, 106 6 Third Chur Semen Agena{ ‘THIRD CHURCH OF CHRIST, SCIENTIST ox Heats chaty) | Date: 3A vempgye 2.010 us: CHM MAY (BOALD OF TrusTEES 10 EPL, ICG & Mid Cre Sent AgenICG 16TH STREET ASSOCIATES, L1.C LA ——_ . Date: _7-Mev-(® Ad C. Stern Authorized Signatory snstn0) i DOPLACG & Doe hunch Selemen AgesmenCuan GEORGE R, CLARK, ESO, Vice-Cuam Nancy MacWoon SECRETARY Ricard Hovsnton TREASURER FRANCISM. CLARKE, DT Tausrens W. KENT COOPER. PALA BILL CREWS D1 Gees Kevne works Mee: Maat How. danisy E, Mavtasion LORETTA NEUMANN Cran bs has Pav Rawat Riva WrstaRet aye Wai Tou Yau Wanwens 21st Cuain eessrus FAURAM. RICHARDS. sy EXHIBIT B The COMMITTEE of © EDERAL Ory Fronded 1003 MOTION FOR THIRD CHRUCH SETTLEMENT Moved, that the Committee of 100 authorizes its attorney, Andrea Ferster, to dismiss its appeal in the DC Court of Appeals of the Mayor's Agent decision and order approving the demolition of the Third Church of Christ Scientist, provided that the Church dismisses its related lawsuits in the DC Court of Appeals and the US District Court and that it requests DC Council members Evans and Barry to withdraw their respective bills concerning the Third Chureh and the DC Historie Preservation Aci. The Committee of 100 will not be a party 10 the proposed settlement agreement among the Third Church, DC Preservation teague and ICG Properties, but will review. thai document 19 ensure that it includes the provisions noted above Adopted by the Committee of 100°s Board of Trustees April 14 2010. Gy Cox George R. Clark Chairman) Wasnpactins, BC 2005 310 IDSH2NHKUEY V9: 22GB