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HomeMy WebLinkAboutMINUTES - 08111992 - X.2 X.Z THE BOARD OF SUPERVISORS OF CONTRA COSTA COUN'T'Y, CALIFORNIA Adopted this Order on August 11, 1992 , , by the following vote: AYES: Supervisors Powers, Fanden, Schroder, McPeak NOES: Supervisor Torlakson ABSENT: None ABSTAIN: None SUBJECT: Litigation Settlement--Land Waste Management v. Contra Costa County, Superior Court No. C 91-01581 The Board having found that this item had been negotiated and the need to take action had arisen after the Agenda had been posted, and County Counsel and Special Counsel having recommended that the Board approve the attached settlement agreement; NOW, THEREFORE, IT IS BY THE BOARD ORDERED THAT: 1. The attached Settlement Agreement is approved; and 2. County Counsel is authorized to signed the agreement on behalf of the County. 1 hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on'the date shown. ATTESTED: //, / f !P 2 PHIL BATCH LOR,Clerk of the Board of Supervisors and County Administrate Contact: Silvano Marchesi, 646-2054 By - Deputy Orig. Dept. : County Counsel cc: County Administrator Community Development attn: Charles A. Zahn SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into between the County of Contra Costa (the "County") , on the one hand, and Land Waste Management ("Land Waste") , Plaintiff in the action Land Waste Management v. Contra Costa County, No. C91-01581, on file in Contra Costa County Superior Court, on the other hand. WHEREAS, Land Waste commenced an action in Contra Costa County Superior Court, No. C91-01581 (the "Action") , challenging the legality of the County's denial of land use entitlements that would have permitted Land Waste to operate a landfill at its property along Kirker Pass Road in the County (the "Kirker Pass Site") ; and WHEREAS, the County and Land Waste have agreed to the framework for a settlement of all claims between them relating to the legality of the County's actions; NOW, THEREFORE, it is hereby agreed as follows: 1. Land Waste shall immediately dismiss the Action by delivering to the County an executed original of a request for dismissal without prejudice as to the Third, Fourth, and Fifth Causes of Action and a dismissal with prejudice as to the First and Second Causes. of Action in the form appended hereto as Exhibit A. 2 . The County agrees that the statute of limitations regarding any filing of a Complaint containing the causes of action preserved in paragraph 1 (the "New -1- Action") will be tolled until 60 days after the County Board of Supervisors takes final action (including any reconsideration) on Land Waste's requests described in paragraph 3 of this Agreement. The County further agrees that it will not raise the statute of limitations as a defense and waives any such defense to the New Action, if filed, so long as the New Action is filed within the 60 day period referred to in the first sentence of this paragraph 2 . 3 . The County agrees that it will diligently and in good faith process and rule upon requests by Land Waste for a general plan amendment, including a change in the Urban Limit Line, and rezoning for the entirety of the Kirker Pass Site (the "Requests") , in accordance with County ordinances and procedures. The request for a general plan amendment will seek a general plan designation that will permit industrial and/or commercial use of the Kirker Pass Site consistent with use of the Site as one or more of the following: a self-storage site, corporation yards, vehicular storage, trailer storage, service yards, construction field offices, concrete batch plant, boarding of horses, or other uses of similar impact and intensity. Such use will be subject to the same general plan and zoning regulations that would be applicable to any similar proposal regarding this Site, made outside the context of litigation. The parties recognize and acknowledge that not all of the Kirker Pass Site is physically suitable for commercial and/or industrial -2- development and that less than all of the Site will be so developed. The rezoning request will seek zoning for the Site that will require no further legislative action by the County in order to approve these specific uses for the Kirker Pass site, but will require a use permit or other equivalent plan approval from another component of the County Planning Agency before any particular use is established--for example, a development plan as required in the P-1 zoning district. The County further agrees to use its good faith efforts to complete its consideration of and rule upon the Requests on or before December 21, 1992, subject to necessary planning, zoning, and environmental procedures. The County shall be under no obligation under this Agreement to take any specific actions with respect to the Requests beyond those expressly stated in this Agreement. Further, in the event the County denies the Requests, such denial shall not limit Land Waste's right to submit any new request(s) for similar or other uses for the Site and shall not limit the County's full consideration of such new request(s) . As an alternative to the requested general plan amendment, the County agrees to initiate, process, and act upon a. general plan amendment .that would apply County-wide, which would allow the same uses on the Site as would the approval of the requested general plan amendment described in this paragraph. . 4. In the event the County grants the Requests, Land Waste shall within five days thereafter deliver to the County an executed original of a request for dismissal with prejudice of the Action in the form appended hereto as Exhibit B. In addition, the parties will at that time enter -3- into a mutual release of claims in the form attached hereto as Exhibit C with respect to all claims regarding Land Waste's application for approval of a landfill at the Kirker Pass Site. 5. In the event the County grants the requests, and one or more third parties file a judicial action or proceeding challenging the County's approval (s) , Land Waste shall defend against such action(s) or proceeding(s) at its cost. The County agrees to cooperate fully with Land Waste in such defense. 6. Each of the parties hereto shall bear its own respective costs, expenses and attorney's fees incurred in connection with the Action. In the event an action is brought arising out of an alleged breach of this Agreement, the prevailing party in said action will be entitled to recover from the breaching party such reasonable costs and expenses as may be incurred by the prevailing party, including court costs and reasonable attorney's fees, whether 0 taxable or not. 7. This Agreement will be binding upon and for the benefit of the parties hereto and their respective successors, heirs, devisees, executors, affiliates, members, representatives, assigns, attorneys, agents and employees wherever the context requires or admits. Each of the signatories executing this Agreement on behalf of a party -4 represents and warrants that he or she has the full and sole authority to execute this Agreement on behalf of that party. 8. This Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction or restraining order against, any activity, action, suit or proceeding which may be instituted, prosecuted or attempted in breach of this Agreement or its exhibits. 9. The parties hereto understand that if any fact with respect to any matter covered by this Agreement is found hereafter to be other than, or different from, the facts now believed by the undersigned parties to be true, the parties expressly accept and assume the risk of such possible difference in facts and agree that this Agreement shall become and remain effective notwithstanding such different facts. 10. This Agreement represents and contains the entire Agreement and understanding between the parties hereto o' with respect to the subject matter of this Agreement, and supersedes any and all prior oral or written agreements or understandings. No representation, warranty, condition, fact, understanding or agreement of any kind with respect to the subject matter hereof shall be relied on by the parties hereto unless expressly incorporated herein. This Agreement may not be amended or modified except by an agreement in -5- writing signed by the party against whom the enforcement of any modification or amendment is sought. 11. This Agreement shall be construed and enforced pursuant to the laws of the State of California. In the event any provision of this Agreement is found to be unenforceable, such provision shall not affect the enforceability of any other provision hereof. 12 . The parties represent and acknowledge that no representations or promises of any kind, except as expressly provided herein, have been made by either party hereto for the other party or to anyone else as consideration for, or to induce the execution of, this Agreement. 13 . In the event that Land Waste files a New Action, the parties agree that this Agreement, negotiations preceding it, and the parties' actions to carry out this Agreement shall be inadmissible in the New Action, pursuant to Evidence Code Section 1152 . COUNTY,/0F CONTRA COSTA Dated* /-/ ated• /-/ By —@he-i a r - o f Supe VICTOR J. WESTMAN County Counsel Dated: f2- By Silvano B. Marchesi Assistant County Counsel -6- LAND WASTE MANAGEMENT Dated: �� l j�• (� By: ---�` '; Sidney Corrile, Jr. General Par er HOWARD, RICE, NE EROVSKI, CANADY, ROBERT N & FALK A Professional Corporation Dated: By: Todd E. Thompson Counsel for Land Waste Management 0 080692/f-511200:A101/31/27419 -7-