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HomeMy WebLinkAboutCarlsbad Unified School District; 2009-10-14;SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is entered into as of October 14,2009 ("Effective Date"), by and between the1 Carlsbad Unified School District ("District") and the City of Carlsbad ("City"). The District and the City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." The Parties intend by this Agreement to resolve all claims between them as stated in the lawsuit entitled City of Carlsbad v. Carlsbad Unified School District, San Diego Superior Court Case No. 37-2009-00052375-CU-WM-NC which has been consolidated with Preserve Calavera v. Carlsbad Unified School District, San Diego Superior Court Case No. 37-2009-00052330-CU-TT-NC (the "Litigation"). RECITALS WHEREAS, the District has long owned property at the corner of College Boulevard and Cannon Road where it has approved a new high school ("Project"). WHEREAS, the District prepared an environmental impact report for the Project ("EIR") and certified the EIR and approved the Project on February 11,2009. The City submitted comments during the administrative proceedings on the Project challenging the validity of the EIR. On March 13,2009, the City commenced the Litigation under the California Environmental Quality Act challenging the validity of the EIR. WHEREAS, the District may require further permits or entitlements ("Future Project Approvals") before the Project can be constructed, including but not limited to a wetlands permit from the Army Corps of Engineers, recertification of the EIR to reflect additional analysis the District is conducting, and reapproval of the Project after the EIR is recertified. WHEREAS, the District has prepared a new traffic study, conducted a new wetlands delineation, and circulated revised EIR sections for public comment to address new information and the City's concerns regarding the EIR. This new analysis shows that the Project will have traffic impacts without mitigation. WHEREAS, the District and the City intend by this Agreement to resolve all claims between them relating to the Litigation. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, promises and undertakings set forth herein and other consideration, the receipt and adequacy of which the Parties hereby acknowledge, the Parties agree as follows: 1. The Parties' Obligations. a. Mutual Obligations: (1) Costs and Fees. The Parties hereby waive any right to collect any sums as costs or fees in or related to the Litigation from any person or entity. (2) Mutual Releases of Claims. The Parties, for themselves and their directors, officials, employees, departments, boards, representatives and attorneys, hereby fully release and forever discharge each other from any and all claims, demands, actions, causes of action, liens, judgments, losses, liabilities, costs, expenses, and attorneys' fees, of whatever nature, past or present or nature, whether in law or in equity, whether under state or federal law, and whether known or unknown, suspected or unsuspected and whether asserted or not asserted, arising from or in connection with the Litigation, the District's development of the Project, the EIR, and the Future Project Approvals (collectively, the "Released Claims"); provided, however, that nothing in this Agreement shall release any Party from liability for failure to perform the terms, conditions, covenants and promises set forth in this Agreement. (3) Waiver of Civil Code §1542. It is the express intention of the Parties in executing this Agreement that this Agreement shall be effective as a full and final accord and satisfaction and release of each other from any and all of the Released Claims. In furtherance of this intention, the Parties acknowledge that they are familiar with Section 1542 of the California Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Parties hereby waive and relinquish all rights and benefits that they have or may have under Section 1542 of the California Civil Code or under any other law of the State of California or any federal law to the same or similar effect with respect to the Released Claims released herein. b. The District's Obligations. (1) Dedication of Cannon Road. Within thirty business days of the District fully executing a contract with a general contractor for construction of the Project, the District will make an irrevocable offer to dedicate a 102-foot-wide right-of-way easement for Cannon Road (including temporary construction easements as required and the right to extend slopes and drainage facilities that do not materially impact the Project's operations) to the City as shown conceptually on Exhibit 1 hereto. At the City's election, the District will provide multiple offers to dedicate so that the City can accept the offer to dedicate portions of Cannon Road built to City standards separately from the remainder of the right-of-way. By entering into this Agreement, the District is not obligating itself to construct the Project or to hire a general contractor for construction of the Project. (2) Mitigation at Intersection of El Camino Real and Cannon Road. Within thirty business days of the District fully executing a contract with a general contractor for construction of the Project, the District will pay three hundred two thousand dollars ($302,000) into the City's capital improvement program for the widening of the existing bridge and constructing an additional right turn lane from northbound El Camino Real to eastbound Cannon Road. (3) Mitigation at Intersection of El Camino Real and College Boulevard. Within thirty business days of the District fully executing a contract with a general contractor for construction of the Project, the District will pay the City three hundred fifty thousand dollars ($350,000) as the estimated costs of widening and constructing a right turn-lane from southbound El Camino Real to westbound College Boulevard and restriping southbound to provide three southbound through lanes on El Camino Real ("El Camino and College Improvements"). If the City constructs the El Camino and College Improvements and the actual cost of building the improvements is less than $350,000, the City will refund to the District the difference between the actual cost of constructing the improvements and the $350,000 within 90 days of finalizing the Notice of Completion for the improvements. If the City does not commence construction of the El Camino and College Improvements within eight years of the School opening, the City will refund the $350,000 to the School. * (4) Contribution to the Extension of College Boulevard. Within thirty business days of the District fully executing a contract with a general contractor for construction of the Project, the District will make a fair share contribution for the construction of College Boulevard between Cannon Road and El Camino Real in an amount determined in the District's discretion or as ordered in a court order. (5) Improvements to be Completed Before School Opens. Before the School opens for regularly scheduled classes, the District will make the following improvements: (a) Grade the full width of Cannon Road to the end of the Cannon Road improvements installed as part of the Project (approximately 1,200 feet) as shown conceptually on Exhibit 2 hereto and to the elevations shown on Exhibit 5 hereto. (b) Construct a taper of Cannon Road at the entrance of the School property: first 100 foot length is full width, followed by transition section (both to City street standards), followed by approximately 50-foot wide section to the third driveway for the Project (approximately 1,200 feet total length) of which at a minimum the south two lanes of paving and the main entrance driveway will be constructed to City street standards, as shown conceptually on Exhibit 2 hereto. The District will execute the City's standard "Encroachment Agreement" for all improvements in the dedicated right-of-way that do not meet City standards. The District will be solely responsible for the maintenance of and liability for the non-public improvements, and will indemnify and hold the City harmless from any claims, demands, damages, losses, injury or death arising out of the improvements. (c) Construct the intersection improvements at Cannon Road and College Boulevard as shown conceptually on Exhibit 3 hereto. (d) Construct a traffic signal at the intersection of Cannon Road and College Boulevard per the details outlined in Exhibit 4 hereto. Within 90 days of the District giving the City an accounting of the District's costs of constructing the traffic signal, the City will reimburse the District for the portion of the costs of constructing the signal that exceed one hundred fifty thousand dollars ($150,000) in accordance with the terms of the City's standard "Agreement for Reimbursement of Costs." c. The City's Obligations. (1) Dismissal of Litigation. Within three court days of the Effective Date, the City shall request dismissal with prejudice of its petition for writ of mandate in the Litigation and shall obtain and provide the District with written court confirmation of the dismissal. (2) City to Accept Easement for Cannon Road. The City will accept an irrevocable offer of dedication of an easement for public roadway and utility purposes and assume maintenance responsibilities for the portions of Cannon Road that the District builds to City standards within six months after finalizing of the Notice of Completion for the roadway improvements. (3) Refund Payments if School is Cancelled. If the District takes formal action to cancel the Project, rather than postpone commencement of the Project, the City will refund any unexpended and unencumbered funds that the District has contributed to the City under this Agreement. (4) Future Cooperation. The City will fully cooperate with the District's processing of any remaining entitlements, permits, easements, licenses, or other approvals the District requires. The City will expedite requests the District makes for such approvals. 2. Entire Agreement. This Agreement: (a) constitutes the entire agreement between the Parties concerning the subject matter hereof; (b) supersedes any previous oral or written agreements concerning the subject matter hereof; and (c) shall not be modified except by a writing executed by the Party or Parties to be bound thereby. 3. Benefited Parties. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective representatives. There shall be no third party beneficiaries. 4. Construction. Choice of Law, and Venue. The terms of this Agreement are the product of arms-length negotiations between the Parties, through their respective counsel of choice, and no provision shall be construed against the drafter thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any disputes concerning this Agreement shall be in San Diego County. In entering into this Agreement, the Parties represent that they have had an opportunity to obtain the legal advice of attorneys of their own choice, and that the terms of this Agreement are fully understood and voluntarily accepted by them. The Parties further represent that they do not rely and have not relied upon any representation or statement made by any Party or any other person with regard to the subject matter, basis or effect of this Agreement, other than the express provisions contained in this Agreement. If any action, at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs, in addition to any other relief to which they or it may be entitled. 5. Counterparts and Electronic Execution. This Agreement may be executed in counterparts which, taken together, shall constitute one and the same agreement. This Agreement may also be executed and/or delivered by facsimile and/or email transmission and in such event all facsimile and/or scanned and emailed signatures shall be deemed originals for all purposes hereof. 6. Authority. Each signatory to this Agreement represents and warrants that he or she is authorized to sign this Agreement on behalf of the Party for which he or she is signing, and thereby to bind that Party fully to the terms of this Agreement, and that none of the claims being released herein have been previously assigned to any other person. AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE: The City Tltle:Ol I/ Date: Carlsbad Unified School District By: Date: CANNON ROAD I -PROPERTY LINE PROPERTY LINE^ 'ERTYLINE GRAPHIC ( TX rm)i nca - BXP r PROPOSED CANNON ROAD RIGHT-OF-WAY DEDICATION EXHIBIT 1 TOPffiGO 1 KHHHEKLr 1 »E lactf P.C.C.«"-HICH CURB xTe CUTTER ,-AC PAVEMENT K — ^ 7J» FUTURE FSi?i-X1 y^STDRM DRAIN SWBTN. PROPcut g fK > OStD PROPinr use Sff S"-HKJH CURS MM A GUTTER'.a m &ocf — [ low J-- \PROPOSEO 16- RECLAMED . WATER CSED R/W,CNT SOOTH ^ raw FUIUDC 'ROPOSEO IB' POTAO£ WATER WORT LOPE X » <£r m&r FUTURE FUTURE CURE sit CUTTER lotf P.CC.SCCWJJf ni 6"-HIGH Qti®/ >AVEMEH |~ : PROPus r use•ED — — (BED ' KMT •- IIJKf - HW CASE 2X -( nar J-— S? ^ taotr FUTURE V. 6"-l FUTURE STORU DRAW>3 FUTURE SEWER yf.I' RECLAMED-' WATER I PROPOSED 16" "*•"- WATER : OUT UNE District to prepare public improvement plans for review and approval by City.PROPOSED CANNON ROAD IMPROVEMENTS PER HIGH SCHOOL EXHIBIT 2 EXHIBIT 3 •* CANNON /COLLEGE INTERSECTION IMPROVEMENTS Curb return with pedestrian access ramp Southwest corner Southeast corner Northeast corner Street light: Southeast corner at Cannon ECR AC pavement removal: Saw cut from 2' in front of Cannon southwest BCR, in front of barricade to 2' in front of College northeast ECR. AC pavement (5" min.) and base (8" min.): From sawcut line to southwest College ECR and to Cannon southeast ECR M-9 Barricade: From Cannon southwest BCR across intersection to Cannon southeast ECR Signing and Striping: As required Sheet 1 of 2 EXHIBITS COLLEGE - CANNON PROPOSED IMPROVEMENTS JUNE 3 NOTE: DISTRICT TO PREPARE PUBLIC IMPROVEMENT PLANS FOR REVIEW AND APPROVAL BY CITY.SHEET 2 OF 2 COPY EXHIBIT 4 Proposed CUSD Cannon/College Traffic Signal Improvements • Assuming extension of east leg only • Assuming 3-leg intersection with 4th leg in the future On the SW, SE and NW corners: (1) Type 1 signal standard (1) Signal standard with mast arm On the NE corner (1) Type 1 signal standard (1) Signal standard (future mast arm) Other requirements include, but are not limited to: (1) Type 170-ATC "coldfire" controller in a model 332 cabinet (1) Uninterruptible power system (UPS) (1) Video detection system for all approaches (1) Type III-BF service meter enclosure • 3" conduit/signal interconnect cable to adjacent traffic signals including Cannon Road & Hilltop Street and College Blvd & Rift Road • Associated signing & striping UJ CTl-1 2& son o Q. CO Ooz2 12o tZ CQ -NEW DESIGN GRADE i I*4*mz 333 T i ite?w°°1WW 3§^7- K) ^