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HomeMy WebLinkAboutCarlsbad Unified School District; 1994-07-25;v E - Date July 25, 1” To File a Reply Wanted From Isabelle UNO Reply Necessary Two originals were furnished to Randee of the City Attorney’s Offi Randee said she would forward the originals to the CUSD attorneys Aviara Land Associates Limited Partnership. Settlement and Release Agreement with CUSD. PRlNTEl t 0 e 4, -I AGREEMENT OF SETTLEMENT AND RELEASE 1. PARTIES: The parties to this Agreement of Settlement and Release ("Agreement") are the Carlsbad Unified School District (the "School District" or I'CUSD''), Aviara Land Associates Limited Partnership ("Aviara"), and the City of Carlsbad, the Planning Commission of the City of Carlsbad, the Housing and Redevelopment Commission of the City of Carlsbad, and the City Council of the City of Carlsbad (collectively, the " City 'I). 2. RECITALS: This Agreement is made with reference to the following facts: 2.1 Certain disputes and controversies (collectively, "Disputes") have arisen among the parties hereto regarding school fees and related mitigation measures the School District contends are due in connection with a 344 unit "affordable housing" project proposed by Aviara and approved by the City, commonly referred to as "The Villas.' 2.2 The School District has contended, among other things, that certain zoning and other approvals (the "Approvals") enacted by the City on or about October 26 and/or November 3, 1993 with respect to The Villas violated CEQA and other state and local law, failed to adequately mitigate effects on CUSD, and were otherwise improper. Aviara and the City have denied CUSD's allegations, and believe that the Approvals were lawful and proper in all respects. Aviara contends that those portions of Th Villas which consist of one-bedroom units will not result in any additional student populatior 1 BAKW8rC112969.03 Final k .< 0 Although CUSD disputes this contention, CUSD is amenable to resolving the Disputes and the Litigation by settlement as set forth herein. 2.3 The Disputes include, but are not limited to, the claims, demands, causes of action, obligations, damages, and liabilities between the parties hereto set forth in the petition entitled Carlsbad Unified School District v. City of Carlsbad. et al. (the "Petition"), which was filed by counsel for CUSD in the Superior Court for the State of California in the County of San Diego North County Branch on or about November 26, 1993, as Case No. N61929 (the "Litigation"). 2.4 The Disputes also include the Cross-Complaint filed in the Litigation on or about February 16, 1994 by the City. 2.5 Aviara's Motion for Judgment on the Pleadings, which the City joined, was heard by the Court on April 21, 1994 and denied by Minute Order dated May 10, 1994. The Litigation was set for trial on June 22, 1994. On June 6, 1994, the parties stipulated to a continuance of the trial so that the settlement embodied by this Agreement could be negotiated and documented. Upon filing of the stipulation the Court ordered a continuance of the trial date to August 1, 1994. 2.6 Except as otherwise provided herein, it is the intention of the parties hereto to settle and dispose of, fully and completely, any and all claims, demands, 2 BAKW&G/12969.03 Final t .\ 0 0 causes of action, obligations, damages and liabilities of any nature whatsoever between the parties hereto existing, whether known or unknown, arising out of, connected with or incidental to the Disputes including, without limitation on the generality of the foregoing, an] and all claims, demands and causes of action reflected in the Petition, the Cross-Complaint and in the Litigation. Now, therefore, the parties agree as follows: 3. MITIGATION PAYMENT AND OTHER CONSIDERATION: Aviara shall pay to CUSD in connection with mitigation of school facilities impacts from The Villas as follows: 3.1 Concurrently with the pulling of building permits for The Villa: Aviara shall pay an amount equal to $3.78 per each square foot of assessable space in each unit of The Villas. These fees will be paid as each permit is pulled. For example, if Aviari pulls building permits for 30 units, it will at that time pay $3.78 per each square foot of assessable area in each of those 30 units. The payments under this section shall be increased annually beginning June 1, 1995. Such adjustments shall be based upon increases set forth i the U.S. City Average All Items Consumer Price Index for All Urban Consumers published by the United States Department of Labor, Bureau of Labor Statistics for the preceding twelve months. Therefore, the first increase effective June 1, 1995 shall be adjusted based on such index for the period of January 1, 1994 and January 1, 1995. Such adjustments shall not reduce the payments to CUSD. 3 BAKW&G112%9.03 Final 1. a 0 3.2 Subject to the terms set forth herein the Approvals are hereby confirmed and agreed by all parties to be in full force and effect. CUSD hereby forever withdraws, releases, abandons and waives any and all objections to the Approvals. 4. DISMISSAL: CUSD and the City shall dismiss the Litigation with prejudice as to all parties, each party to bear its own attorneys, fees and costs. The City and the School District hereby irrevocably authorize their counsel of record to file a Request for Dismissal substantially in the form attached hereto as Exhibit A. 5. NO PRECEDENT: The parties agree that the settlement embodied by this Agreement is not intended to be used as precedent by any party in any future disagreement with regard to school fees in connection with respect to developments or projects other than The Villas. This Agreement is not admissible in any future litigation or administrative hearing, and shall not be cited by either party in any future negotiation, hearing or litigation relating to school fees. The parties acknowledge this Agreement is made against the backdrop of a unique legal situation (namely, that the Approvals were enacted under former law), and agree that this Agreement has no effect on any "affordable housing" project or other development other than The Villas. 6. RELEASES: In consideration of the mutual releases contained herein, and for other good and valuable consideration, the receipt of which is acknowledged by eacf. party hereto, the parties promise, agree and release and discharge as follows: 4 BAKW8rG112969.03 Final .* 0 0 6.1 Except as to such rights or claims as may be created by this Agreement, each party hereby releases, remises and forever discharges each other party, its officers, agents, servants, employees, representatives, assigns, successors-in-interest, predecessors-in-interest, partners, and attorneys from any claims, demands, causes of action, obligations, damages, and liabilities between the aforementioned parties, existing prior to the effective date hereof, whether known or unknown, arising out of, connected with or incidental to the Disputes including, without limitation on the generality of the foregoing, anj and all claims, demands, cause or causes of action, obligations, damages, and liabilities relating to the Petition, the Cross-Complaint, and the Litigation. 6.2 Aviara and the City waive any right they may have to appeal or otherwise challenge the Court’s denial of their Motion for Judgment on the Pleadings. 7. REPRESENTATIONS AND WARRANTIES: Each of the parties to this Agreement represents, warrants and agrees as to itself as follows: 7.1 Each party has received independent legal advice from its attorneys with respect to the advisability of making the settlement provided for herein, and with respect to the advisability of executing this Agreement. 7.2 No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and each party does not rely 5 BAKW&G/12%9.03 Final .. 0 a upon any statement, representation or promise of any other party (or of any officer, agent, employee, representative, or attorney for the other party), in executing this Agreement, or in making the settlement provided for herein, except as expressly stated in this Agreement. 7.3 Each party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement and of all the matters pertaining thereto as it deems necessary. 7.4 Agreement and understands the contents hereof. The officers executing this Agreement on behalf of the parties are empowered to do so and hereby bind each entity. Each party or responsible officer thereof has read this 7.5 In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, concealment or mistake. If an! party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or the law was incorrect, such party shall not be entitled to any relief in connection therewith, including, without limitation on the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be and is the final and binding Agreement between the parties hereto, regardless of any claims of misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever. 6 BAKW&G/12%9.03 Final .. 0 a 7.6 Each party has not heretofore assigned, transferred, or granted, or purported to assign, transfer, or grant, any of the claims, demands, and cause or causes of action disposed of by this Agreement. 7.7 Each term of this Agreement is contractual and not merely a recital. 7.8 Each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties to fully, finally and forever settle and release all such matters, and all claims relative thereto, which presently exist, may exist, or heretofore have existed between them relating to the Disputes. In furtherance of such intention, the releases given herein shall be and remain in effect as ful and complete mutual releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 7.9 The parties will execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this Agreement. 8. SETTLEMENT: This Agreement effects the settlement of claims which are denied and have been vigorously contested. Nothing contained herein shall be construed as an admission by any party hereto of any liability of any kind to any other party 7 BAKW&Gl12%9.03 Final e e Each of the parties hereto denies any liability in connection with any claims and intends merely to avoid litigation and buy its peace. 9. MISCELLANEOUS : 9.1 This Agreement shall be deemed to have been executed within the State of California, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 9.2 This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Agreement may be amended only by an agreemeni in writing. 9.3 This Agreement is binding upon and shall inure to the benefit o the parties hereto and their respective agents, employees, representatives, attorneys, officers, joint venturers, partners, subsidiaries and shareholders. 9.4 Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party. 8 BAKW&G/l2%!9.03 Final 0 e 9.5 In the event of litigation relating to this Agreement, the prevailing party, as determined by a court of competent jurisdiction, shall be entitled to attorneys’ fees. 9.6 This Agreement may be executed in counterparts. When each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one agreement which shall be binding upon and effective as to all parties. No counterpart shall be effective until all parties hereto have executed and exchanged an executed counterpart hereof. 9.7 This Agreement, consisting of ten pages and one exhibit, is made and entered into as of Tq cy ;il / , 1994, and is effective as of that date. , 1994 CARLSBAD UNIFIED SCHOOL DISTRICT ‘7/!2 I , 1994 , 1994 Attest By: 9 BAKW&G/12969.03 Final 0 0 , 1994 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnershi] By: Aviara Land Company, a Delaware Corporatiory'Gyral Partner 1 \--- ----_ 6g+&.- 1 i ---:-- . J&,'.*, ,/ ; P- D.L-mens By: Republic Development Company, a CalifomiaKEioration, General Partner -- - -- -- - -_ ---J BY * #----I- D.L. Clemens APPROVED AS TO FORM: BOWIE, ARNESON, KADI, WILES & GIANNONE /I ? \ \J By: LL (Piyub pvi 4 g /"LA \ i; 4 d% Attorheys for CARLSBAD UNIFIED SCHOOL DISTRICT 2 j.~ { -1 , 1994 , 1994 SHEPPARD, MULLIN, RICHTER & HAMPTON By: Timothy B. Taylor Attorneys for Aviara Land Associates Limited Partnership 4-4 C3ue , 1994 04 Q-. L RONALD R. BALL, City Attorney, City of Carlsbad 10 BAKW&G/12%9 03 Fml PlaintWs): Carlsbad Unified School District WendanWsh City of Carlsbad, et al. - tea TiUeUe) CASENUMBER N 61929 REQUEST FOR DISMISSAL TYPE OF ACTION n Personal In jury, Property Damage and Wrongful c7 Domestic Relations m Other: (Specify). Petition.. f or. .wit n ktor Vehicle a other U Eminent Domain Mandate