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Home My WebLink About1988-05-10; City Council; 9424; Settlement AgreementCIT" OF CARLSBAD - AGENDA BILL @ AB#- &: SETTLEMENT OF LAWSUIT ENT1TLF.D MTG. 5/10/88 SHAPELL INDUSTRIES. INC. V. CITY OF CARLSBAD DEPT. Y DEPT. HD.- RECOMMENDED ACTION: Adopt Resolution No. 878--/53approving the Settlement Agreement and Dismissal" and authorizing the Mayor to execute it. ITEM EXPLANATION Shapell Industries, Inc. filed the above referenced lawsuit on December 18, 1987 generally challenging the adoption of the Local Facilities Management Plan for Zone 6 and the fee of approximately $5,105 per residential dwelling unit on environmental grounds. Shapell Industries, Inc. owns property within Zone 6 which it is developing with 120 residential dwelling units in the sukdivision commonly known as Monarch Villas. On February 23, 1988, the City Council revised the Local Facilities Management fee from $5,105 per residential dwelling unit to $310 by the adoption of Resolution No. 88-53. Shapell Industries, Inc. has agreed to pay this revised fee in the total amount of $37,200 and dismiss its lawsuit with prejudice on the terms and conditions stated in the attached glSettlement Agreement and Dismissal." Shapell, Industries, Inc. has paid all other previously imposed fees in connection with the issuance of building permits to it on October 1, 1987 including the increased public facilities fee, bridge fee, La Costa traffic impact fee, park-in-lieu fee, and other normal processing and issuance fees. By this agreement, the City acknowledges payment of all previously assessed fees and agrees to release its "Agreement to Pay Fees for Facilities and Improvements as Required by Growth Management Systemt8 on file in the office of the County Recorder. Each side will bear its own costs and attorneys fees. FISCAL IMPACT There will be no fiscal impact as a result of this settlement. Shapell Industries, Inc. has paid all necessary and proper fees in accordance with the agreement. The City will be relieved of the burden of additional costs and expenses of further litigation. EXHIBITS Resolution No. 88-/53 1 2 3 4 5 6 7 8 9 10 11 12 t 0 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 88 - 153 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE AGREEMENT BETWEEN SHAPELL INDUSTRIES, INC. AND CITY OF CARLSBAD SETTLING THE LAWSUIT ENTITLED SHAPELL INDUSTRIES, INC. V. CITY OF CARLSBAD The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. That certain agreement between the City of Carlsbad and Shape11 Industries, Inc. settling the lawsuit entitled Shape11 Industries, Inc. v. Citv of Carlsbad, marked Exhibit A and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for an on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 10th day of May , 1988, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson ATTEST: (SEAL) Exhibit A SETTLEMENT AGREEMENT AND DISMISSAL This Agreement is made an entered into this loth day of , 1988 by and between Shapell Industries, Inc. a Delaware corporation and successor by merger to S & S Construction Co. of San Diego, Inc., formerly a California corporation (hereinafter, Shapell Industries, Inc. and S & S Construction Co. of San Diego, Inc., will as applicable be referred to individually and collectively as llShapell@@) and the City of Carlsbad, a municipal corporation (hereinafter @ICity@*) in order to settle any and all disputes arising out of the adoption of the Local Facilities Management Plan for Zone 6 (hereinafter "Zone 6@*), and all fees associated therewith or which might otherwise be imposed on the project described below and to cause dismissal of the case entitled ShaDell Industries, Inc. v. City of Carlsbad, San Diego Superior Court Case No. N39053 upon the following terms and conditions: WHEREAS, Shapell obtained valid building permits from City on or about October 14, 1987 for 120 residential dwelling units contained in that subdivision owned by Shapell and identified as Carlsbad Tract 83-1, Subdivision Map No. 11085 and commonly known as Monarch Villas (hereinafter @'Shape11 Project1@) , and paid to City all fees which were determined and fixed at that time for said 120 residential dwelling units; and WHEREAS, City has adopted Zone 6 in accordance with Chapter 21.90 of the Carlsbad Municipal Code: and 1 WHEREAS, the City Council of the City of Carlsbad adopted the plan for Zone 6 by Resolution No. 9291 on November 10, 1987; and WHEREAS, City adopted a Local Facilities Management Plan fee for said Zone 6 in the approximate amount of $5,105 per residential dwelling unit to be assessed on all new development within Zone 6 by Resolution No. 9292 adopted November 10, 1987; and WHEREAS, the City Council of the City of Carlsbad amended said Resolution No. 9292 by the adoption of Resolution No. 8853 establishing a reduced local facilities management fee in the amount of $310 per dwelling unit in Zone 6; and WHEREAS, Shapell protested the adoption of Resolutions Nos. 9291 and 9292 both verbally and in writing by its letter dated November 10, 1987 addressed to the Honorable Bud Lewis, Mayor of the City of Carlsbad and City Council; and WHEREAS, Shapell filed a lawsuit on December 18, 1987 in the Superior Court of the State of California, County of San Diego, North County Branch, Case No. N39053 entitled ShaDell Industries, Inc. v. Citv of Carlsbad; and WHEREAS, the parties wish to settle this litigation, reduce further expenditures of resources and attorneys fees and to establish a degree of certainty regarding development in general within Zone 6 including the Shapell Project. NOW, THEREFORE, the parties agree as follows: 1. Shapell shall within 30 days after the date of approval of this agreement, pay to City the sum of $310 per 2 dwelling unit for each dwelling unit as shown on said tract map 83-1 which number of units is 120 for a total of $37,200 without any further notification from City; and 2. City and Shapell hereby agree and acknowledge that Shapell has paid all necessary building permit fees and related fees and costs with respect to Lots 2 through 11 of the Shapell Project, each such lot containing 12 condominium residential dwelling units; and 3. Shapell shall dismiss its said lawsuit with prejudice and waives any claims or causes of action against City as set forth in its said letter of November 10, 1987; and 4. Provided Shapell has paid the $37,200 fee set forth above, City shall neither impose nor collect any further or additional fees for said 120 residential units including any additional fees which may be imposed in the future under its Zone 6 plan or any other plan adopted pursuant to its growth management system under Carlsbad Municipal Code Chapter 21.90 or any successor chapter; provided, however, City may impose such ordinary and additional fees as may be required for complete processing and inspections of said subdivision; and 5. Upon payment of the fees set forth above, City shall release the "Agreement to Pay Fees for Facilities and Improvements as Required by Growth Management Systemtt recorded November 18, 1986 in the office of the San Diego County Recorder, Document No. 86-530223 which release shall be recorded with the San Diego County Recorder. Said payment 3 shall constitute full compliance with the requirements of City Council Resolution No. 8853 and shall be deemed by the parties hereto as constituting full compliance with all provisions of Chapter 21.90 of the Carlsbad Municipal Code; and 6. City and Shapell hereby acknowledge that Shapell has not yet applied for building permits to construct the recreational facilities contemplated for Lot 1 of the Shapell Project. The parties hereby agree that no Zone 6 growth management fees or other similar fees are required for or will be assessed to or against Lot 1 of the Shapell Project under Chapter 21.90 of the Carlsbad Municipal Code or under Resolution No. 8853, or any amendments thereto, or under any similar legislative enactment by the City. The parties hereby acknowledge and agree that the usual and customary developerls fees shall be charged by the City upon Shapellls application for building permits for improvements to Lot 1 of the Shapell Project; and 7. This Agreement shall be binding upon and inure to the benefit of, as applicable, the parties' predecessors, successors, divisions, departments, agencies, and assigns. 8. Each party shall bear its own costs and attorneys fees. DATED: April 27, 1988 SHAPELL INDUSTRIES, INC. A Delaware corporation, and successor by merger to S & S by: 4 I J /R’ DATED: / CITY OF2ARLSBAD /- by: ChUDE A. WIS, Mayor APPROVED AS TO FORM City Attorney V 5