HomeMy WebLinkAbout1994-07-19; Housing & Redevelopment Commission; 255; Carlsbad Unified School District v. City. .
HOUSING AND I- /rl L&&,W’ DEVELOPMENT COMMISSI-I - AGENDA BILL 0
AB# as5- TITLE: SETTLEMENT OF LAWSUIT ENTITLEIbDEPT. HD.
MTGi. T/19/94 CARLSBAD UNIFIED SCHOOL DISTRICT CITY CASE NO. N61929
DEPT. CA
RECOMMENDED ACTION:
That the Housing and Redevelopment Commission adopt Resolution No. a52 approving the settlement and release agreement and authorizing the Chairman to execute it on behalf of the Commission.
ITEM EXPLANATION
The Carlsbad Unified School District brought this action against the Housing and Redevelopment Commission claiming that the Villas affordable housing project had been insufficiently conditioned to mitigate the impacts on the school district by virtue of the additional school age children generated by its approval. A settlement and release agreement has been reached to mitigate these claimed impacts satisfactory to both entities and the law suit will be dismissed. The settlement and release is for this project only and does not establish a policy or precedent for other similar future developments.
FISCAL IMPACT
There are sufficient funds in the project budget to implement this settlement. Under its terms, the project will pay $3.78 per square foot of living space or approximately $338,000.
EXHIBITS
Resolution No. &25z Settlement and Release Agreement
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RESOLUTION NO. 252
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE SETTLEMENT OF THE LAWSUIT ENTITLED CARLSBAD UNIFIED SCHOOL DISTRICT V. CITY OF CARLSBAD CASE NO. N61929
WHEREAS, on recommendation of the General Counsel, the
Housing and Redevelopment Commission of the City,of Carlsbad,
California has determined that a settlement in the case entitled
Carlsbad Unified School District v. Citv of Carlsbad, San Diego
Superior Court case No. N61929 is in the public interest; and
WHEREAS, there are sufficient funds in the project
budget to implement this settlement,
NOW, THEREFORE, BE IT RESOLVED by the Housing and
Redevelopment Commission of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the Housing and Redevelopment Commission
approves the settlement and authorizes the Chairman to execute
the Settlement and Release Agreement which is hereby approved.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
the Housing and Redevelopment Commission of the City of Carlsbad
on the 19th day of , 1994, by the following JITI.Y
vote, to wit:
AYES: Commissioners Lewis, Stanton? Kulchin, Nygaard, Finnila
NOES: None
ABSENT: None
'(5ha"lrman
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 “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”).
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 The
Villas which consist of one-bedroom units will not result in any additional student population.
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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. Citv 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,
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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, any
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 Villas,
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 Aviara
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 in
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. I
uAKw&c112969.03 Fiil
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 each
party hereto, the parties promise, agree and release and discharge as follows:
BAKw&c/12969.03 Fil
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, any
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
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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 Each party or responsible officer thereof has read this
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.
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 any
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 sef qide 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.
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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.
recital.
7.7 Each term of this Agreement is contractual and not merely a
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 full
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 SW 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.
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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 agreement
in writing.
9.3 This Agreement is binding upon and shall inure to the benefit of
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.
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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 SC( CY 2 / , 1994, and is effective as of that date.
, 1994 CARLSBfD UNIFIED SCHOOL DISTRICT
, 1994 Y/2 /
+s lgg4
V
Attest
By: ,dizzzAuy
BAKW&G/l2%9.03 Fid
, 1994 AVIARA LAND ASSOCIATES LIMITED
PARTNERSHIP, a Delaware Limited Partnership
By: Aviara Land Company, a Delaware
Corporation ,y’ neral Partner / 9
1 ;‘..
D.L\Cl&ens
APPROVED AS TO FORM: BOWIE, ARNESON, KADI, WILES 8c
GIANNONE
Q+ -) ,1994 By:c
CARLSBAD UNIFIED SCHOOL DISTRICT
Attorneys for
Aviara Land Associates
ziq ad@ , 1994 la
Limited Partnership
d Q. Ga-cl, I RONALD R. BALL, City Attorney, City of
Carlsbad
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- 06/23/91 16: 14 81 S&9 239 9830 SllUH SAN DIECO
t4.m.. Adaram and Iaootmn . (10.04 Atmnav(8)
Alexander Bowie, Esq. BOWIE, ARNESON, KADI, WILES & GIANNONZ
4920 Campus Drive, Ste. A
New-port Beach, CA 92660
(714) 851-2014
Attorney(s) ..carlsbad.Unified.Schoo~.. District
somoerw?auuotcouncldtow
@io14
. . . . , . . . . . . .S.l??ERIQR . . . . . COURT OF CALJFOFNW COUNM OF. .SAN . .PX%Q.. . . . . . . . . . . . . (SUPERIOA, MIJHICIPAL, or JUSTICEI
NORTH COUNTY..JTJR~CXAL.RIS~I~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . L~oluunr~1~~~~sliWCO~DlS~~O~D~~~n.UuyJ
Plaintiffk): Carl&ad Unified School
District
1 CASENUHBER N 61929
REQUEST FOR DISMISSAL
Defendantsht city of Carlsbad, et al. c1 Personal Injury, Pfapefty oamage and wrongful Death:
El Other: (Specify). ~etition..for..W.rit..of...,
TO THE CLERK: Please dismrss this action as tollow~ (Check aboltcebk boxes.)
1. m Witti prejudice Cl Witnout wejudice
. ‘2 [x3 Entire actlon 0 Camptaint only U Petltlon only
a Other: (Specity)’
0 Cross-conplalnt only
BOWIE, ARHESON, KADI, ET AL.
Dated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SlI alsnuaat Rau~slm IS or aD.QIlm Domom Mfv. ot swohw ausm 0, lCllM any w 01 saeof~a aoou- IO avy. 00
z.ma and urmclfy tno patms. ausm 04 l cUon or cmss(O(DYntm
I: ‘;a otsmmsm.
Attorney(s) Carlsbad Unlfled Scfiool Dlstr
Alexander Bowie, Esq.
(Type ar prmt attorney&J namels~)
To THE CLERK: Consent to the above dismtSsa1 Is hereby given.”
Oated:..............................................
‘-wnut . uoa8~omPYm (ar aawns Wucrrrgo) a-9 amma= Attorney(s) City of Carlsbad
IWO rw100 Is on Ma. lno OWomwtaJ 101 mm uos8eomnmmm
(rrsmonomcJ ITIUSI sa@l hy OOMW Wnm I- W CCP ,
sel(C). (21 or(s). Ronald R. Ball (Type or print attorney(s) name&M
(TO ha comofeteu oy clerk).
0 Dismissal entered as reQUeSted on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a DismIssat antered an.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . as to Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
0 Dismcssal not entered as requested for tne fallowing reasonW, and attorney(s) notifiea on
Clerk
Dated.......................................,..............~.. By .Dew~
3 c 3m Maoma ov Rum 982 01
7”. ,“a,c,*, CaJnOlo~ CalllOm~* R@.4#8W EImcwe Jury 1. 1972
REOUESTFORDISMISSAL CCPfal. 01c.: Cal. RUIOS of tom.
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