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HomeMy WebLinkAbout2009-09-22; City Council; 19966; Reporting out the settlement termsCITY OF CARLSBAD - AGENDA BILL AB# 19.966 MTG. 9/22/09 DEPT. CA REPORTING OUT THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF f*ADI CD/in TUC f*AI ICDDMIAU/AKLoo/\L>, 1 He LrALIrUKnIA COASTAL COMMISSION AND STATE DEPARTMENT OF PARKS AND RECREATION DEPT. HEAD CITY ATTY. Sf&^. CITY MGR. /u/ — RECOMMENDED ACTION: There is no action to be taken by the City Council. ITEM EXPLANATION: The parties have now settled this issue under the authority given to the City Attorney by the City Council at its closed sessions of September 2, 2009. This item satisfies the Brown Act requirement to report the fact of a settlement approved in a prior closed session and makes the terms and conditions of the settlement available to the public. FISCAL IMPACT: This settlement has no fiscal impact to the City. ENVIRONMENTAL IMPACT: Reporting out the fact of Settlement is not a "project" within the meaning of CEQA and therefore environmental review is not required pursuant to CEQA Regulation 15061(b)(3). EXHIBIT 1. Settlement Agreement on file with the City Clerk. DEPARTMENT CONTACT: Ron Ball 760-434-2801 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED tQ DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER-SEE MINUTES D SETTLEMENT AGREEMENT This settlement agreement (Agreement) is entered into by and among the City of Carlsbad (City), the California Department of Parks and Recreation (DPR), and the California Coastal Commission (Commission). The City, DPR, and Commission are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." The City, DPR, and the Commission enter this Agreement in light of the following recited facts (Recitals). RECITALS A. l'he Commission approved DPR's application for a coastal development permit to install a mechanical fee collection device at Carlsbad State Beach parking lot (the Project) on May 8,2008. B. The Commission issued Coastal Development Permit 6-07-1 11 (the Permit) to DPR on or about June 11,2008. (A true and correct copy of the Permit is attached hereto as Exhibit A and is incorporated herein by reference.) The Permit requires DPR to comply with three special conditions, including Special Condition 2, Parking Monitor Program. Consistent with Special Condition 2, DPR submitted a parking monitoring program and the Commission's Executive Director approved it prior to issuance of the coastal development permit. Special Condition 2 and the parking monitoring program require DPR to conduct monitoring from 4 weeks prior to operation and throughout a one-year term as more specifically set forth in the Permit. C. The City filed a Petition for Writ of Mandate; Injunctive Relief; Declaratory Relief on July 7,2008 (the Petition), challenging the Commission's approval of the Project as not in compliance with the California Coastal Act or the California Environmental Quality Act. D. The Parties desire to settle and resolve their differences relating to the Project and the Commission's decision through this Agreement. AGREEMENT Therefore, in consideration of the above recitals, the Parties agree as follows: 1) City's Dismissal. Within five (5) court days of the signing of this Agreement, the City shall file a dismissal with prejudice of the Petition. Hourly Parking Fee. DPR shall implement an hourly parking fee following installation of the mechanical fee collection device at Carlsbad State Beach for the three-year term of the Permit. (See Special Condition 3 of the Permit ["Th[e] device shall be authorized to remain for three years from the date that the mechanical fee collection device is operational."].) Persons parking in the lot shall pay the hourly rate set by DPR for each hour or portion thereof they park in the lot. Parkers shall be subject to a two-hour minimum payment regardless of the actual time they park in the lot, but in no event will they pay more than the daily rate. (For example, a person parking for any amount of time up to 2 hours will pay for ill two hours. A person parking for more than two hours will pay the product of the number of hours multiplied by the hourly rate or the maximum daily rate, whichever is less.) The hourly rate shall not apply to holders of annual or other passes authorized by DPR. 3) Press Release. As part of this Settlement, the Parties agree that the Commission, DPR and the City shall issue the joint press release that is attached hereto as Exhibit B. 4) Release. The Parties, and each of them, their directors, officers, employees, agents, representatives, subsidiaries, affiliates, predecessors, successors, and attorneys release and discharge each other Party, its members, directors, officers, employees, agents, representatives, subsidiaries, affiliates, predecessors, successors, and attorneys, from any and all claims, losses, debts, liabilities, demands, obligations, costs, expenses, damages, attorney's fees, actions or causes of action, whether known or unknown, suspected or unsuspected, accrued, contingent, or which may arise in the future relating to the Petition, including all matters which were or could have been alleged in the Petition. 5) Binding on Assignees. This Settlement Agreement shall be binding on any assignees of Coastal Development Permit 6-07-1 1 I. 6) Civil Code section 1542. With respect to the release described in paragraph 4 of this Agreement, the Parties, and each of them, expressly waive all rights under California Civil Code section 1542, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CFEDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. The Parties, and each of them, acknowledge that they may hereafter discover facts different from, or in addition to, those which they now believe to be true with respect to the release of claims and agree that this Agreement shall remain effective in all respects, notwithstanding such different or additional facts, or the discovery thereof. 7) Fees and Costs. The Parties shall assume and pay for their respective attorneys' fees and legal costs and expenses related to the Petition. 8) Counsel. The Parties represent that they have consulted or have had the opportunity to consult legal counsel prior to the execution of this Agreement and have executed this Agreement with full knowledge of its meaning and effect. 9) Binding on Successors and Assigns. The Parties agree that the terms, conditions, and provisions of this Agreement are binding upon, and shall inure to the benefit of, all assigns and successors-in-interest of each of the Parties. 10) Additional Acts. The Parties agree to perform any acts and execute any documents consistent with the terms and conditions of this Agreement which may be needed, desired, or required to effectuate the terms, conditions, and provisions of this Agreement. 11) Entire A~reement. Except as otherwise provided for herein, this Agreement constitutes the entire and only agreement between the Parties with reference to the subject matter hereof and supersedes and prior representation or agreement, oral or written, with respect thereto. The Parties further agree that no representation, warranty, agreement, or covenant has been made with regard to this Agreement, except as expressly recited herein and that in entering into this Agreement, no Party is relying upon any representation, warranty, agreement, or covenant not expressly set forth herein. 12) No Admissions. Each Party agrees that this settlement is made in compromise of disputed claims, and that by entering into and performing the obligations of this Agreement, no Party concedes or admits the truth of any claim or any fact and the execution and performance of this Agreement shall not be construed as an admission by any Party. 13) Governinp Law. This Agreement shall be construed, enforced, and governed by the laws of the State of California, and shall constitute a binding settlement by the Parties which may be enforced under the provisions of the California Code of Civil Procedure. 14) Mutual Drafting. The Parties agree that this Agreement shall not be construed in favor of, or against, any Party by reason of the extent to which any Party or its counsel participated in the drafting of this Agreement. 15) Amendment. The Parties may amend this Agreement only by a writing signed by all of the Parties. 16) Counterparts. The Parties may sign this Agreement in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute the same Agreement. Facsimile or scanned signatures will have the same force and effect as original signatures. 17) Authority. The Parties represent and warrant that they have full and complete authority to execute this Agreement and that they have not assigned or transferred (voluntarily, involuntarily, or by per at ion of law), to any person or entity, any right, title, or interest in any claim released and discharged herein. CITY OF CARLSBAD Dated: -d City Manager CALIFORNIA COASTAL COMMISSION Dated: Peter Douglas, Executive Director CALIFORNIA DEPARTMENT OF' PARKS AND RECREATION Dated: Michael F. Harris, Chief Deputy Director APPROVED AS TO FORM: OFFICE OF THE ATTORNEY GENERAL Dated: By: Hayley Peterson, Deputy Attorney General Attorneys for California Coastal Commission and California Department of Parks and Recreation RONALD R. BALL, City Attorney Dated: ?-/-a P BY: SD2008303632 Document in ProLaw 141 17) Authority. The Parties represent and warrant that they have full and complete authority to execute this Agreement and that they have not assigned or transfen-ed (voluntarily, involuntarily, or by operation of law), to any person or entity, any right, title, or interest in any claim released and discharged herein. CITY OF'CARLSBAD q Dated: City Manager CALIFORNIA COASTAL COMMISSION A C&O~~ARTMENT w . . . P S ANT) RECREATION . . Dated: Michael F. Harris, Chief Deputy Director APPROVED AS TO FORM: OFFICE OF THE ATTOFWEY GENERAL Dated: By: Hayley Peterson, Deputy Attorney General Attorneys for California Coastal. Commission and California Department of Parks amj Recreation RONALD R BALL, City Attorney . Dated: By: Jane Mobaldi, Assistant City Attorney Attorneys for City of ~arlsbad SD2008303632 Document in ProLaw r43 17) Authority. The Parties represent and -'that they have full and complete authority to . execute this Agreement and that they have not assigned or Wenred (voluntady, involunta~ily, or by operation of law), to any person or en ti^, any'right, title, or interest .in any daim released and discharged herein. Dated: . . City Manager . CALIFORNIACOASTALCOMMISSION . . Dated: Peter Douglas, Executive Director CfirFORNIA DEPARTMENT OF . PARKS AND RECREATION Dated: 7//0/~4 , . Michael F. Harris, Chief De'puty Director APPROVED AS TO FORM: , OFFICE OF ?RE ATTORNEY G~\TEI&L Dated: By: ' Hayley Peterson, Deputy Attorney General Attorneys for California coastal Commission and California Department of Parks and Recreation RONALD R. BALL, City Attorney ' . . . .. Dated: By: . . . . Jane Mobaldi, Assistant City Attorney Attorneys for City of Carlsbad ~~2008303632. . . Document in ProLaw [41 17) Authoritv. The Parties represent and warrant that they have full and complete authority to execute this Agreement and that they have not assigned or transferred (voluntarily, involuntarily, or by operation of law), to any person or entity, any right, title, or interest in any claim released and discharged herein. CITY OF CARLSBAD * I Dated: City Manager CALIFORNIA COASTAL COMMISSION Dated: Peter Douglas, Executive Director CALIFORNIA DEPARTMENT OF PARKS AND WCREATION Dated: Michael F. Harris, Chief Deputy Director APPROVED AS TO FORM: OFFICE OF THE ATTORNEY GENERAL Dated: ~//o/oY I By: A*?- Hayley Peterson, Deputy Attorney General Attorneys for California Coastal Commission and California Department of Parks and Recreation RONALD R. BALL, City Attorney Dated: By: Jane Mobaldi, Assistant City Attorney Attorneys for City of Carlsbad SD2008303632 Document in ProLaw [41 Exhibit A STATE OF CALIFORNIA -THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER, Governor CALIFORNIA COASTAL COMMISSION > San Dlego Coast Area Office \. . 7575 Metropolitan Drne, Sulte 103 San D~ego. CA 92108-4421 (6 19) 767-2370 www.coastal.ca.gov Page: I Date: June 5, 2008 Permit Application No.: 6-07-1 11 COASTAL DEVELOPMENT PERMIT On May 8, 2008, the California Coastal Commission granted to: California Department of Parks and Recreation this permit subject to the attached Standard and Special Conditions, for development consisting of Installation of a mechanical fee collection device at Carlsbad State Beach Parking lot more specifically described in the application filed in the commission offices. The development is within the coastal zone at entrance to parking lot at Carlsbad State Beach, at Tamarack Ave west of Carlsbad Boulevard, Carlsbad, San Diego County. Issued on behalf of the California Coastal Commission by PETER M. DOUGLAS By: TOK ROSS Coastal Program Analyst ACKNOWLEDGMENT: The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions thereof. The undersigned permittee acknowledges that Government Code Section 818.4 which states in pertinent part that: "A Public entity is not liable for injury caused by the issuance. . . of any permit. . . " applies to the issuance of this permit. IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNOWLEDGMENT HAS BEEN RETURNED TO THE COMMISSION OFFICE. 14 Cal. Admin. Code Section 13158(a), I Date I Signature of Permittee COASTAL DEVELOPMENT PERMIT Date: June 12,2008 Permit Application Nb.: 6-07-1 11 Page 2 of 4 STANDARD CONDITIONS: 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 4. Assiqnment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 5. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDITIONS: The permit is subject to the following conditions: 1. Proiect Modifications. Only that work specifically described in this permit is authorized. Any additional modifications will require separate authorization from the Coastal Commission (i.e. change in hours of operation, removal/reformatting of existing spaces). 2. Parkinq Monitorins Proaram. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the applicant shall submit for review and written approval of the Executive Director, a parking monitoring program which shall, at a minimum, incorporate the following: a. Monitoring shall be conducted from 4 weeks prior to operation and throughout a one year term. The permit authorizes the operation of the devices for a three year term. b. Monitoring shall occur at the following locations: From the west side of Carlsbad Blvd. east to the NCTD rail road tracks and from Agua Hedionda Lagoon north to Cherry Ave. within 1500 feet of the parking lot (ref. Exhibit #3). All unimproved pedestrian accessways along the bluff from Agua Hedionda Lagoon north to Tamarack Ave. (ref. Exhibit #3) Carlsbad State Beach Parking Lot COASTAL DEVELOPMENT PERMIT Date: June 5, 2008 Permit Application No.: 6-07-1 11 Page 3 of 4 c. Monitoring for the parking lot shall occur on: One Saturday or Sunday each week and any holidays for 4 weeks prior to operation of the fee collection device, to include at least one week during the summer. One Saturday or one Sunday each month from first day of operation until one year after operation. The day selected for monitoring will be based upon weather conditions to ensure monitoring occurs on heavy beach usage days. Beach use is more dependent upon warm (hot) weather than weekend or holiday. w One Saturday or Sunday each week and every holiday between Memorial Day weekend and Labor Day. w Monitoring of the parking lot shall occur on the same day as monitoring of the surrounding neighborhood. d. Monitoring within the parking lot shall consist of: w Parking counts taken at the approximate hours of 10:OO a.m. and 2:00 p.m. on every monitored day; recordation of temperature, weather and surf conditions during each count; w Documentation of both actual car counts and percentage of occupancy, assuming 120 available parking spaces; and w Documentation of turnover rates. w Use of any discounted or annual passes, such as the Golden Bear Pass, Distinguished Veterans Pass, Disabled Discount Pass, or the Annual Day Use Parking Pass by patrons of Carlsbad State Beach Parking Lot. e. on it or in^ the surrounding neighborhood (as noted in the first sections of letter "b" above) shall occur on: One Saturday or Sunday each week and any holidays for 4 weeks prior to operation of the fee collection device, to include at least one week during the summer. One Saturday or one Sunday each month from date of operation until one year following operation. Every Saturday, Sunday or holiday between Memorial Day weekend and Labor Day. Monitoring of the surrounding neighborhood shall occur on the same day as the monitoring of the parking lot. f. Monitoring the surrounding neighborhood (as noted in the first to sections of letter "b" above) shall consist of: Parking counts within the surrounding areas detailed above for all street parking taken at the approximate hours of 10:OO a,m. and 2:00 p.m. on every monitored day; recordation of temperature, weather and sutf conditions during each count; including documentation of total parking spaces available. Parking availability will be determined by measurement of street legal parking areas and the industry standard of 20' parking space length. g. Monitoring of the Coastal Bluffs shall occur on: w Once prior to operation of the fee collection device COASTAL DEVELOPMENT PERMIT Date: June 12, 2008 Permit Application No.: 6-07-1 11 Page 4 of 4 Twice annually, once prior to but within 7 days of Memorial Day weekend, and once after but within 7 days of Labor Day weekend for a period of one year. h. Monitoring of Coastal Bluffs shall consist of: Monitoring the number and degree of unimproved public accessways (as noted in the second section of letter "b" above) Photo documentation of the existing coastal bluffs including detailed documentation of existing and new unimproved trails for access. Results of the monitoring shall be submitted to the Coastal Commission once, no later than 60 days following the anniversary of the first day of operation of the device (including the monitoring four weeks prior to operation and at least one week during the summer). The Annual report shall include documentation of any modifications made to existing street parking (i.e. reductions of existing spaces by red curbing, curb cuts, no parking signs, and installation of automated parking fee devices etc.). Data shall be presented in tables and graphs and shall compare the number of open parking spaces in the surrounding neighborhood to the usage of the Carlsbad State Beach parking lot. The permittee shall undertake monitoring in accordance with the approved monitoring program. Any proposed changes to the approved program shall be reported to the Executive Director. No changes to the program shall occur; including any reduction in intensity of monitoring efforts, without a Coastal Commission approved amendment to this coastal development permit unless the Executive Director determines that no amendment is legally required. 3. Three Year Authorization. The Department shall notify the Executive Director in writing within five days after operation of the mechanical fee collection device. This device shall be authorized to remairi for three years from the date that the mechanical fee collection device is operational. At the end of the three year time period, the device shall be removed unless the permittee has submitted an amendment to have it permanently retained. Exhibit B City of Carlsbad, California Coastal Commission and California State Parks FOR IMMEDIATE RELEASE CONTACT: City of Carlsbad Kristina Ray, 760-434-2957, kristina.rav@carlsbadca.gov California Coastal Commission Deborah Lee, 619-767-2370 California State Parks Ronilee Clark, 619-688-3260 City, state settle lawsuit over Tamarack Beach parking Compromise allows hourly parking CARLSBAD, Calif. -The City of Carlsbad, the dalifornia Coastal Commission, and California State Parks have settled a lawsuit over the environmental impacts of paid parking at the state-owned lot at Tamarack Avenue and Carlsbad Boulevard. Part of Carlsbad State Beach, the lot is the entrance to what locals refer to as Tamarack Surf Beach, enjoyed year round by surfers, beach goers and those who enjoy the popular coastal walkways. Under the settlement agreement, State Parks will charge hourly parking, with a two hour minimum and a maximum daily charge of $10, the same day rate fee charged at South Carlsbad State Beach's Ponto beach. The hourly fee has not yet been set but is agreed to be $2 an hour or less. State Parks originally proposed only a day use fee. Under the settlement agreement, the requirements of the coastal development permit for the project that the California Coastal Commission approved will remain in full effect. This compromise allows Carlsbad residents and visitors to continue to enjoy the beach, whether just for a short walk or for the entire day, while providing the state the income it needs to keep the beaches open. State Parks has the ability to charge fees for beach parking, but it was not allowed to proceed with the installation of the fee collection device as approved by the California Coastal Commission while Carlsbad's legal challenge was pending. On October 1, 2007, State Parks took the first step toward charging for parking at Tamarack Surf Beach by filing an application with the California Coastal Commission. The City of Carlsbad opposed this move, first through testimony in front of the Coastal Commission and ultimately through a lawsuit. The move to paid parking was delayed by more than one year and until after the 2009 summer season. The settlement was reached prior to any court ruling on the merits of the California Coastal Commission's approval of State Parks' application to install the fee collection device. State Parks has estimated it needs approximately $700,000 a year to operate and maintain Carlsbad State Beach, which spans from just south of Cannon Road to Pine Avenue. State Parks estimates it will generate approximately $590,000 a year from paid parking at Tamarack Surf Beach. State Parks owns the beach and provides lifeguard service, restrooms, picnic areas, showers and parking lots. State Parks will install an electronic kiosk at the parking lot this fall. The machine, which accepts cash, credit cards and debit cards, will generate a ticket to be displayed in vehicle windshields. State Parks will continue to offer annual parking passes which will be acceptable at Tamarack Surf Beach and all other State Parks. Passes may be purchased at the State Park office 2680 Carlsbad Boulevard, Carlsbad. State Parks staff will enforce the paid parking. Tickets for non-payment will be approximately $68.50.