HomeMy WebLinkAboutNorth County Advocates et al.; 2017-03-14;LETTER AGREEMENT
This letter agreement ("Letter Agreement") among North County Advocates ("NCA"), Lennar Homes of California,
Inc. ("Lennar") and the City of Carlsbad ("City"), collectively referred to herein as the "Parties," concerns the
attorneys' fees and costs claimed by NCA in connection with its pending lawsuit against the City, entitled North
County Advocates v. City of Carlsbad, San Diego Superior Court Case No. 37-2015-00035458-CU-WM-NC
("Lawsuit"), the pending administrative proceedings concerning Lennar's application for certification of a Final
Environmental Impact Report ("Final EIR") and approval of the land use entitlements necessary to proceed with a
proposed development referred to as the "Poinsettia 61 Project," and the negotiations and other activities
relating to the Settlement Agreement and Settlement and Community Benefit Agreement described in the
following paragraph of this Letter Agreement.
This Letter Agreement is entered into in anticipation of the City's certification of the Final EIR and approval of the
Poinsettia 61 Project and the Parties' approval of the Settlement Agreement between NCA and the City
concerning the Lawsuit, dated March 14, 2017, and the Settlement and Community Benefit Agreement among
NCA, Lennar, the City and others concerning the Poinsettia 61 Project, dated March 14, 2017. Therefore, this
Letter Agreement shall terminate and be of no force and effect if the City exercises its discretion not to approve
the Poinsettia 61 Project in substantially the same form as described in the Final EIR, of if any of the parties to the
Settlement Agreement or the Settlement and Community Benefit Agreement exercise their discretion not to
execute and approve either or both of said agreements.
Subject to the foregoing, the Parties to this Letter Agreement agree as follows:
1. Within five (5) business days after NCA delivers the request for dismissal of the Lawsuit to the City
pursuant to section 3.1 of the Settlement Agreement between them, the City and Lennar shall pay the total
amount of Seventy-Seven Thousand, Five Hundred Dollars ($77,500.00) to NCA as follows: the City shall pay to
NCA the amount of Forty-Two Thousand Five Hundred Dollars ($42,500.00); and Lennar shall pay to NCA the
amount of Thirty-Five Thousand Dollars ($35,000.00). Said payments shall be made to NCA by delivering checks
in said total amount to NCA's counsel of record, Delano & Delano, made payable to "Client Trust Account."
2. The payment required by section 1 of this Letter Agreement shall constitute payment in fu II satisfaction of
any and all attorneys' fees, costs and other expenses claimed by NCA and its officers, directors, members,
attorneys and all other persons acting by or on its behalf, or which could have been claimed by NCA and its
officers, directors, members, attorneys and all other persons acting by or on its behalf, arising out of or relating to
the Lawsuit, including without limitation the Interim Agreement between NCA and the City, and/or the Poinsettia
61 Project. Except for the payment required by section 1 of this Letter Agreement, the Parties hereto shall bear
their own attorneys' fees, costs and other expenses arising out of or relating to the Lawsuit, the Poinsettia 61
Project, and the Settlement Agreement and Settlement and Community Benefit Agreement.
3. Except as provided in section 8.6 of the Settlement Agreement and section 9.6 of the Settlement and
Community Benefit Agreement, upon payment of the amount required by section 1 of this Letter Agreement, the
City and NCA, on behalf of their officers, directors, members, attorneys, elected and appointed officials,
employees, representatives and all other persons acting by or on their behalf, do hereby fully and forever release,
acquit, and discharge each other, together with their officers, directors, members, attorneys, elected and
appointed officials, employees, representatives and all other persons acting by or on their behalf, from any and all
claims or demands for costs, attorneys' fees and other expenses, whether known or unknown, which they have or
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may have against each other arising out of or relating to the Lawsuit, the Interim Agreement and the Poinsettia 61
Project.
4. Except as provided in section 8.6 of the Settlement Agreement and section 9.6 of the Settlement and
Community Benefit Agreement, upon payment of the amount required by section 1 of this Letter Agreement,
Lennar and NCA, on behalf of their officers, directors, members, attorneys, shareholders, employees,
representatives and all other persons acting by or on their behalf, do hereby fully and forever release, acquit, and
discharge each other, together with their officers, directors, members, attorneys, shareholders, employees,
representatives and all other persons acting by or on their behalf, from any and all claims or demands for costs,
attorneys' fees and other expenses, whether known or unknown, which they have or may have against each other
arising out of or relating to the Poinsettia 61 Project.
5. This Letter Agreement may be executed in one or more counterparts and, when executed by each of the
Parties signatory hereto, said counterparts shall constitute a single valid Letter Agreement even though one or
more of the signatory Parties may have executed separate counterparts hereof.
6. Each the Parties to this Letter Agreement represents and warrants that it has authorized the person
identified below to obligate the party on whose behalf it is signing and that no further action or authorization is
necessary to execute this Letter Agreement on behalf of such party or its members.
IT IS SO AGREED.
Dated: March 14, 2017
NORTH COUNTY ADVOCATES
By' ~~ ~. • ;J=__..-
How~rd Krausz, Vice President
Dated: March 14, 2017
CITY OF CARLSBAD
Dated: March 14, 2017
LENNAR HOMES OF CALIFORNIA, INC.
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into on March 14, 2017, by and between
NORTH COUNTY ADVOCATES, a non-profit corporation, on behalf of itself and its members
(collectively "NCA" ), and the CITY OF CARLSBAD ("City"), a municipal corporation, in light of the
following facts and circumstances:
WHEREAS, on September 22, 2015, the City Council of the City adopted Resolution 2015-242,
certifying the Final Environmental Impact Report ("General Plan EIR") and adopting Findings of Fact,
a Statement of Overriding Considerations and a Mitigation Monitoring and Reporting Program for the
Carlsbad General Plan Update and Climate Action Plan ("CAP") with the City Council of the City finding
that these actions were in compliance with the requirements of the California Environmental Quality Act
("CEQA"), Public Resources Code section 21000, et seq., and its implementing guidelines ("CEQA
Guidelines"), California Code of Regulations, title 14, section 15000, et seq.; and
WHEREAS, on September 22,2015, the City Council ofthe City adopted Resolution 2015-243,
Resolution 2015-244 and Ordinance No. CS-287, approving the Carlsbad General Plan Update and
CAP and adopting General Plan Amendment 07-02, Local Coastal Plan Amendment 07-02, Citywide
Facilities and Improvements Plan Amendment SS 15-06, Zoning Ordinance Amendment 07-01, Zone
Change 15-02, and CAP SS 15-05 (collectively "General Plan Update and CAP Approvals"); and
WHEREAS, on October 21, 2015, NCA filed a lawsuit challenging the City's certification of the
General Plan EIR and approval of the General Plan Update and CAP, entitled North County Advocates
v. City of Carlsbad, San Diego Superior Court Case No. 37-2015-00035458-CU-WM-NC ("Lawsuit");
and
WHEREAS, pursuant to CEQA, NCA and the City met to discuss settlement of the Lawsuit and
engaged in good faith negotiations over a period of months which addressed, among other things, issues
arising out of or relating to the Lawsuit; and
WHEREAS, as part of their resolution of the Lawsuit, and simultaneously with entering into this
Agreement, NCA and the City intend to enter into a related settlement and community benefit agreement
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with Lennar Homes of California, Inc., Preserve Calavera, Friends of Aviara, and Friends of Buena Vista
Reservoir which provides for the preservation and enhancement of open-space and park land in the
City ("Community Benefit Agreement"); and
WHEREAS, NCA and the City wish to settle the Lawsuit and all claims and disputes between
them arising out of or relating to the General Plan EIR and the General Plan Update and CAP without
admitting or establishing liability, fault, blame or the truth or veracity of any of the claims made by and
between them, in a manner which benefits the residents of Carlsbad; and
WHEREAS, NCA and the City shall be referred to below collectively as the "Parties";
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS SET FORTH
BELOW, THE PARTIES AGREE AS FOLLOWS:
1. Incorporation of Recitals. The recitals set forth above are incorporated herein as
though set forth in full.
2. No Admission of Liability. NCA and the City understand, acknowledge and agree that
by reason of entering into this Agreement, they do not admit, expressly or impliedly, any fact or liability
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of any type or nature, whether or not referred to herein, or the sufficiency of any claims made or that
could have been raised by any party, or the allegations, assertions or positions of any party in the
Lawsuit. Further, NCA and the City have not made any such admission and this Agreement is entered
into solely by way of compromise and settlement of the claims and defenses alleged in the Lawsuit.
3. NCA's Undertakings. In consideration of the obligations undertaken and the promises
made herein by the City, NCA hereby covenants and agrees to undertake the following actions:
3.1 In the event the City approves the Poinsettia 61 Project and upon City approval
of the Community Benefit Agreement and execution of the Community Benefit Agreement by all parties
thereto, counsel for NCA shall execute and deliver to counsel for the City a request for dismissal, with
prejudice, of the Lawsuit in its entirety, in a form suitable for filing with the San Diego Superior Court,
which shall be filed by counsel for the City, thereby terminating the Lawsuit. Except as provided in a
separate letter agreement, the parties shall bear their own costs and attorneys' fees incurred in the
Lawsuit.
3.2 NCA, on behalf of its officers, directors, members and all other persons acting by
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or on its behalf, does hereby fully and forever release, acquit, and discharge the City, together with its
elected and appointed officials, employees, representatives and other agents (collectively "City") from
any and all claims, demands, costs, attorneys' fees, rights or causes of action, whether known or
unknown, which NCA has or may have against the City that arise out of or are related to the facts or
circumstances alleged in the Lawsuit.
4. The City's Undertakings. In consideration of the obligations undertaken and the
promises made herein by NCA, the City hereby covenants and agrees to undertake the following actions:
4.1 Within five (5) court days after counsel for NCA delivers to counsel for the City
the request for dismissal required pursuant to Section 3.1 of this Agreement, counsel for the City shall
file the request for dismissal in the San Diego Superior Court, thereby terminating the Lawsuit. Except
as provided in a separate letter agreement, the parties shall bear their own costs and attorneys' fees
incurred in the Lawsuit.
4.2 The City, on behalf of its elected and appointed officials, employees,
representatives and other agents, does hereby fully and forever release, acquit, and discharge NCA,
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together with its officers, directors, members and all other persons acting by or on its behalf (collectively
"NCA"), from any and all claims, demands, costs, attorneys' fees, rights or causes of action, whether
known or unknown, which the City has or may have against NCA that arise out of or are related to the
facts or circumstances alleged in the Lawsuit.
4.3. The City shall undertake the following actions within the time specified below.
Except as otherwise stated, the time periods below shall commence upon the date of this Agreement,
which shall be the date this Agreement is executed by both Parties:
4.3.1. Within six ( 6) months, the City shall present to the City Council for
consideration and, if approved by the City Council, amend the Growth Management Program ("GMP")
parks performance standard adopted by the City Council in Resolution No. 97-434 on April 22, 1997,
to remove the 1,562 dwelling unit limit and to provide that the five-year timing requirement for park
construction shall commence on the date the City Council approves the GMP parks performance
standard amendment.
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4.3.2. Within one (1) month, the City shall support a citizen scientist program by
designating an employee of the City as the contact person to coordinate and respond to requests for
citizen scientist activities in the City within a reasonable time.
4.3.3. The City shall continue to evaluate significant development projects in the
Village and Barrio Master Plan area in accordance with the smart growth-related policies referenced
in the City's General Plan and CAP. The revised public review draft of the Village and Barrio Master
Plan will propose goals, objectives and/or policies consistent with the Community Vision, General Plan
and CAP that encourage and support increased alternative modes of transportation use through public ·
infrastructure investments, private development conditions of approval and/or incentives, and
partnerships with public transportation agencies, private transportation providers, and non-profit
organizations.
4.3.4. The City will participate in SANDAG's Series 14 Regional Growth Forecast
and Smart Growth Concept Map technical update, which are expected to be completed by Fall 2017,
by (a) reviewing and commenting on SANDAG model land use density and intensity assumptions and
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land capacities in Carlsbad, (b) reviewing and providing comments on draft model run results, (c)
requesting that SANDAG remove the Quarry Creek Smart Growth Opportunity Area (CB-3) from the
Smart Growth Concept Map, and (d) reviewing and commenting on proposed status changes (if any)
of Smart Growth Opportunity Areas in Carlsbad based on SANDAG Smart Growth place type criteria.
4.3.5. Within nine (9) months, City staff shall present to the City Council for
consideration a policy to require project applicants to conduct early stakeholder outreach f~:>r significant
new development proposals. Prior to finalizing the proposed policy and scheduling it for City Council
consideration, City staff will release the draft policy document for a public review and comment period,
and will meet with NCA to discuss and consider' their comments on the draft policy document.
4.3.6. As part of the development review process, the City shall evaluate all
discretionary projects for consistency with applicable General Plan policies and CAP measures and
actions that aim to reduce roadway congestion and vehicle miles traveled (VMT), through Transportation
)
Demand Management (TOM) techniques and multi-modal improvements. Within twenty-four (24)
months, City staff shall present to City Council for consideration and approval a TOM plan and ordinance
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that addresses alternative transportation modes for new and existing uses as described in CAP Measures
K-1 and K-2. Within twelve (12) months, the City shall update its Traffic Impact Analysis (TIA)
Guidelines, incorporating multi-modal level of service (MMLOS) analysis to address vehicle, bicycle,
pedestrian, and transit modes of travel, and including transportation demand management (TOM) trip
reduction methodologies and best practices to reduce automobile trips and improve travel mode shift.
The updated TIA Guidelines will also be used to determine requirements for offsetting project impacts
and evaluating opportunities for improving project-level connections for all travel modes (vehicle, bicycle,
pedestrian, and transit). Within twelve (12) months of the state Office of Planning and Research (OPR)
issuing final amendments to the CEQA Guidelines regarding the use of VMT as the primary metric to
analyze transportation impacts rather than vehicle level of service (LOS), the City, in collaboration with
SANDAG and applicable working groups, will revise the updated TIA Guidelines to be consistent with
OPR's final amendments to the CEQA Guidelines.
4.3.7. Pages 4-16 and 4-17 of the City's CAP estimates the citywide baseline
alternative transportation mode use by workers as 22 percent, and establishes a target 10 percent
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increase in the mode share by 2035. Page 5-9 of the City's CAP identifies projected GHG reductions
associated with increased mode share for 2020 and 203 5 target years. Within twelve (12) months,
the City shall establish a baseline performance metric and monitoring protocols to measure progress
toward achieving the mode split assumed in the CAP and corresponding greenhouse gas emission
reduction targets.
4.3.8. The City's Fire Department shall collect actual emergency response time
data and provide an annual public report, based on a fiscal year and starting in FY 16/17, documenting
and summarizing such data.
4.3.9. Within twelve (12) months, the City shall present to the City Council for
consideration and, if approved by the City Council, implement a one-year pilot program to employ two
provisional park rangers to patrol open space areas. At the end of the pilot program, the City shall
evaluate the effectiveness of the program and shall make recommendations to the City Council based
on the standards and objectives of the Open Space Management Plan.
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4.3.10. Within eighteen (18) months, the City shall present to the City Council for
consideration an update to the Community Forest Management Plan which includes a program to identify
and protect heritage trees, where practicable, and will include provisions for protection and enhancement
of the urban tree canopy.
4.3.11. The City shall address water supply and demand considerations,
including a discussion of groundwater and recycled water supplies (to include greywater), in its 2020
Urban Water Management Plan, shall continue its involvement in the North San Diego Water Reuse
Coalition, and shall continue to monitor the development of the San Diego Integrated Regional Water
Management (IRWM) Program Storm Water Capture Feasibility Study (SWCFS) and evaluate for
methods and best practices by which to pursue storm water reuse projects in the future.
4.3.12. Within twelve (12) months, as part of the CAP implementation plan, the
City shall establish baseline performance metrics and monitoring protocols to measure progress toward
achieving the greenhouse gas emission reduction targets for the measures and actions summarized in
the CAP Implementation Matrix Table 5.1, and as more fully described in Chapters 4 and 5 of the CAP.
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4.3.13. Within twenty-four (24) months, City staff shall present to City Council for
consideration and approval a residential and commercial energy conservation ordinance that addresses
the CAP renewable energy and energy conservation measures and actions summarized in CAP Tables
4-1 and 4-2, and as more fully described in Chapter 4 of the CAP.
4.3.14. On an annual basis, based on a fiscal year and starting in FY 16/17, the
City shall produce and make publically available a map and corresponding table, summarized by General
Plan open space category and Local Facilities Management Zone, that reports the amount of designated
open space in the city. The reporting will also provide a brief narrative description of the non-technical
changes to open space acreages that may have occurred since that previous reporting year.
4.3.15 The City will meet and collaborate with NCA at least twice annually to
discuss the status of acquiring, for the purpose of open space preservation in perpetuity, the properties
listed in the City Council approved Proposition C Open Space and Trails Ad Hoc Committee Property
Analysis ranking chart. As a part of these meetings, the City will also consider and evaluate for
acquisition any other property that is not listed on the Proposition C Open Space and Trails Committee
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Property Analysis ranking chart. In doing so, the City will utilize the Property Acquisition Ranking
Criteria developed by the Proposition C Open Space and Trails Ad Hoc Committee to consider the value
of the acquisition regardless of rank, for open space preservation in perpetuity, any property not included
on the Proposition C list. If, through these meetings, a property is evaluated and identified as being
appropriate for acquisition for open space preservation in perpetuity, which shall also include
identification as having a willing seller, the City shall use good faith efforts to acquire the property. The
City shall also use good faith efforts to utilize the open space acquisition funding authority available to
the City from the passage of Proposition C toward leveraging funds from other sources such as federal,
state, and local grants. NCA agrees in principle to participate in these efforts by assisting in leveraging
City funds with funds acquired from other sources, for the sole purpose of pursuing any and all properties
identified as potential candidates for acquisition for open space preservation in perpetuity. City and
other funds may only be used for costs that are necessary to acquire the real property including but
not limited to deposits required by purchase agreements, necessary option payments, appraisals,
technical reports, environmental studies of the property, and purchase price payments. For the
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purpose of this section, there is no time frame identified, no maximum funding limit on the amount of
City funds made available to acquire property for open space preservation in perpetuity, and the minimum
funding amount the City shall make available to acquire property for open space preservation in
perpetuity is $4,000,000.
4.3.16. If there is a material failure to implement the related Community Benefit
Agreement, the City shall continue to pursue acquisition and development of at least 3.1 acres of new
park land in the northwest quadrant of the City, which is in addition to existing and future parks in the
northwest quadrant as identified in the General Plan Open Space, Conservation and Recreation Element
Tables 4-4 and 4-5.
4.4. The City Manager is authorized to represent and act on behalf of the City in all
future actions and decisions necessary to implement this Agreement, and to do so consistent with and
in full compliance with the terms and conditions expressed in this Agreement and to the satisfaction of
the City Attorney.
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5. Reservation of Discretion.
5.1. The Parties acknowledge and agree that nothing in this Agreement shall be
construed as circumscribing or limiting the City's discretion with respect to its compliance with CEQA
and other applicable laws and regulations in connection with this Agreement and that the City, in its
sole and absolute discretion, may adopt mitigation measures or conditions of approval which the City
determines are necessary and appropriate to reduce or avoid any potential environmental impact or to
comply with any applicable law or regulation relating to this Agreement.
5.2. The Parties further acknowledge and agree that the City reserves its discretion to
approve or disapprove all actions which require by law the exercise of discretion and which the City
cannot lawfully be committed by contract to exercise in a particular way. Such reservation of discretion
will apply to all contemplated legislative and quasi-judicial actions of the City, including without limitation
the City's compliance with CEQA, approval of land use entitlements and related agreements, code
enforcement and the making of findings and determinations required by law.
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6. Termination of Agreement. In the event that the City exercises its discretion not to
approve the Poinsettia 61 Project and the Community Benefit Agreement is terminated pursuant to
Section 8.0 thereof, this Agreement also shall terminate and the provisions of this Agreement shall be
of no further force and effect.
7. Notice. Formal notices, demands and communications among the Parties shall be
given, and shall not be deemed sufficiently given until given in writing by certified mail, return receipt
requested, or by overnight delivery to the following persons and addresses, or to such other persons
and addresses as the Parties from time to time may designate:
To NCA:
With a copy to:
North County Advocates
7668 El Camino Real, Suite 104-258
Carlsbad, CA 92009
Info@ northcountyadvocates.com
Everett Delano
Delano & Delano
220 W. Grand Avenue
Escondido, CA 92025
760-510-1562
Everett@delanoanddelano.com
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To City:
With a copy to:
Kevin Crawford
City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
760-434-2821
kevin.crawford@carlsbadca.gov
Celia Brewer
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
760-434-2891
celia.brewer@carlsbadca.gov
Such written notices, demands and communications shall be effective on the date shown on the
delivery receipt as the date delivered or the date on which delivery was refused.
8. Miscellaneous.
8.1. The Parties understand and agree that additional documents and agreements may
be necessary to effectuate this Agreement and the Parties hereby agree to execute and to deliver all
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other documents and agreements as may be reasonably necessary to carry out the purposes of this
Agreement.
8.2. Each party signing this Agreement jointly and severally represents and warrants
that it has full authority to obligate the party or parties or members on whose behalf it is signing and
that no further action or authorization is necessary to execute this Agreement on behalf of such party
or its members.
8.3. The Parties have read all of this Agreement, fully understand the same and have
consulted with their attorneys regarding this Agreement. The Parties hereto are represented by
independent counsel with whom each party has fully discussed the terms and consequences of this
Agreement, or have had the opportunity to retain independent counsel but have elected not to do so.
NCA and its members are represented by the law firm Delano & Delano, 220 W. Grand Avenue,
Escondido, CA 92025; and the City is represented by the law firm Hogan Law APC, 225 Broadway,
Suite 1900, San Diego, CA 92101. The Parties hereto acknowledge that they execute this Agreement
of their own free will and under no threat, menace, coercion or duress of any kind from any party. The
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Parties further acknowledge that they execute this Agreement acting on their independent judgment and
upon the advice of their respective counsel, without any representation, express or implied, of any kind
from any other party, except as specifically set forth herein.
8.4. Except as provided in a separate letter agreement concerning attorney's fees and
costs, this Agreement constitutes the entire fully integrated written agreement among the Parties with
respect to the subject matter of this Agreement and may not be modified or waived except by a writing
duly executed on behalf of the party to be bound by the waiver or modification.
8.5. If any part of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, such decision shall not affect the validity of any remaining portion of this
Agreement and the remainder shall stand in full force and effect.
8.6. In the event it becomes necessary for any party to obtain the services of an
attorney to enforce the provisions of this Agreement against any party who has breached any obligation
set forth herein, the prevailing party in any proceeding shall be entitled to recover all its attorneys' fees
and costs incurred.
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8.7. This Agreement may be pleaded by any party hereto as a full and complete
defense to and may be used as the basis for an injunction against any action, suit, claim or other
proceeding of any type which may be prosecuted, initiated or attempted in violation of the terms hereof.
8.8. This Agreement is made, executed and delivered within the County of San Diego,
State of California and shall be construed and covered by the laws of the State of California.
8.9. This Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and to all members, beneficiaries, elected and appointed officials, officers, directors, employees,
attorneys, agents, successors, affiliates, heirs and assigns of each party.
8.10. This Agreement may be executed in one or more counterparts and, when executed
by each of the Parties signatory hereto, said counterparts shall constitute a single valid Agreement even
though each of the signatory parties may have executed separate counterparts hereof.
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IN WITNESS WHEREOF, this Settlement Agreement is executed on the date(s) set forth below.
Dated: March 14, 2017
Dated: March 14, 2017
NORTH COUNTY ADVOCATES
By:
~?/f ~~c:_ fr~?~~~/
~~,_.rd .,K'raus-z...__
Patricia Bleha, PresideAt-of the
Board of Directors
CITY OF CARLSBAD
By:
Matt Hall, Mayor
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