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HomeMy WebLinkAboutMINUTES - 01241995 - 1.55 TO: ` BOARD OF SUPERVISORS, and BOARD OF COMMISSIONERS FRO1 : Victor J. Westman, County Counsel KTK By: Kevin T. Kerr, Deputy County Counsel DATE: January 19, 1995 SUBJECT: North Concord Homeless Shelter SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1 . That the County Counsel be authorized on behalf of Contra Costa County to execute the proposed settlement agreement with Memory Gardens, Inc. 2 . That the County Counsel be authorized on behalf of the Housing Authority of Contra Costa County to execute the proposed settlement agreement with Memory Gardens, Inc. BACKGROUND Memory Gardens, Inc. challenged the County' s North Concord Homeless Shelter in Superior Court from December 1991 to May 1994 . In May 1994 , the Board of Supervisors, among other things, certified an environmental impact report concerning the North Concord Homeless Shelter. Since May of 1994, the County and Memory Gardens have engaged in productive settlement discussions . Those negotiations produced a proposed settlement agreement. CONTINUED ON ATTACHMENT: YES SIGNATURE ,V- RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD C M TTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON Jil Nji Z 4 11599115 APPROVED AS RECOMMENDED _— OTHER VOTE OF SUPERVISORS / I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES : ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Orig:County Counsel ' s Office ATTESTED JAN 2 4 1995 cc: Housing Authority PHIL BATCHELOR, CLERK OF Social Service Department THE BOARD OF SUPERVISORS Health Services Department AND COUNTY ADMINISTRATOR CONTACT: Kevin Kerr, Deputy County Counsel (646-2066) BY -�.�,.0 Q , DEPUTY NORTH CONCORD HOMELESS SHELTER SETTLEMENT AGREEMENT This Settlement Agreement, dated January _, 1995, is entered into by and between Memory Gardens, Inc., a California Corporation ("Memory Gardens"), on one part, and the County of Contra Costa, by and through the Board of Supervisors for Contra Costa County ("the Board") and the Housing Authority of Contra Costa County ("the Housing Authority"), on the other part (collectively, "the County"). Said parties are hereinafter collectively referred to as "the Parties," and their agreement is as follows: RECITALS 1. Memory Gardens is the owner of real property located at 2011 Arnold Industrial Way, in the North Concord area, Contra Costa County, California ("the cemetery property"), at which it has operated a cemetery and crematorium as a business. 2. Pursuant to actions of the Board, the County has leased and operated certain improved real property located at 2047 Arnold Industrial Way, in the North Concord area, Contra Costa County, California, ("the shelter property") which property adjoins the cemetery property on its southeast boundary, as a homeless shelter for up to one hundred (100) single homeless adult residents of Page 1 Contra Costa County, for most of the time since December of 1991 ("the project"). 3. On or about December 6, 1991, Memory Gardens filed a Petition for Writ of Mandate and Complaint for Declaratory Relief against the County and others in the Superior Court for the State of California, Contra Costa County, being Action No. C91-05729, which action challenged the propriety of the project, and sought injunctive and other relief prohibiting the use of the shelter property for such project. This action was subsequently consolidated with and into Superior Court Action No. C91-05617, also seeking injunctive and other relief prohibiting the use of the shelter property for the project (collectively, "the Consolidated Action"). 4. On May 10, 1994, the Board certified a Final Environmental Impact Report ("FEIR") for the project, adopted a General Plan Amendment concerning County-operated homeless shelters, and took other related actions, and issued a Notice of Determination concerning the project on May 11, 1994 (collectively, "the final Board approval"). 5. On May 31, 1994, the Court entered an Order Vacating Injunction and Dismissing Entire Action as to the Consolidated Action No. C91-05617, without prejudice to any action which might be pursued by Memory Gardens challenging the final Board approval. Page 2 6. The Parties hereto wish to settle, end and resolve all existing disputes between them without further litigation regarding the matters which were or are the subject of the Consolidated Action and the final Board approval, and to continue good relations as neighbors in the North Concord Area, now, wherefore, the Parties hereto enter into the following agreements and mutual covenants: SETTLEMENT TERMS THE ACTIONS AND THE PROPERTIES 7. Memory Gardens forever relinquishes, releases and forever discharges the County, their agents, directors, officers and employees, and all named parties to the Consolidated Action, and their agents, officers and employees, from any and all claims, demands, actions, causes of action, loss, damage, cost or expense, and liabilities of any kind or character, known or unknown, arising out of, relating to, or in any way concerning the matters alleged in the Consolidated Action (except as otherwise previously ordered by the Court), the final Board approval, or without limitation from any cause concerning the shelter property or project prior to the effective date_of this Agreement. a, Memory Gardens agrees that this Agreement shall act as a release of future claims that may arise from the matters which are its subject, as set forth Page 3 above in the preceding paragraph (paragraph no. 7), whether such claims are currently known, unknown, foreseen, or unforeseen, notwithstanding section 1542 of the California Civil Code, which provides that a "general release does not extend to claims which the creditor 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" and shall be in full settlement of every above-described dispute, claim, or cause of action. 8. Each of the Parties shall bear their own costs, expenses and attorneys' fees in the Consolidated Action, except as otherwise previously ordered by the Court therein. 9. For a period of three (3) years from the effective date of this Agreement, as set forth above, the County and its agents will not expand or increase the bed capacity of the project beyond one hundred (100) single homeless adults. This covenant shall not prohibit the County from purchasing the shelter property, and shall not prohibit the County from otherwise modifying or enlarging the operations, services or programs of the project at the shelter property . 10. For a period of thirty (30) years from the effective date of this Agreement, and so long as the shelter property is being used as a homeless shelter, the County will not open or operate another homeless shelter, temporary Page 4 or permanent, within a 1/4 (.25) mile radius of the shelter property. After said thirty (30) years, or when the shelter property is no longer in use as a homeless shelter, the County may seek to use other property within the 1/4 mile radius as a homeless shelter, without prejudice to any rights of Memory Gardens to otherwise oppose such use. 11. The County agrees that the FEIR certified for the project considered and evaluated the project and its proximity to the Memory Gardens' crematorium; that it presently believes that said considerations and evaluations in the FEIR remain valid; that it is presently unaware of any past or present complaints by residents or staff at the project concerning the operation or existence of said crematorium; and that it is presently unaware of any legal action contemplated to interfere with, diminish or enjoin the operations of said crematorium. 12. The Parties agree that a wood barrier fence shall be constructed to serve as physical and visual screening between the project's current outside recreation area and the cemetery property, as shown on Exhibit A attached hereto. Said fence shall be a length of approximately 110 feet and of a height of approximately eight (8) feet, shall be located between the points shown on Exhibit A, and shall be constructed according to plans approved by both Parties except the cost of construction of said fence shall not exceed $5,100.00 to the County. At its option, Memory Gardens shall have the right to pay any expense above the Page 5 $5,100.00 amount to ensure construction of the fence. Said fence shall be constructed within approximately four months from the date both Parties approve the plans for constructing the fence. The County shall bear the cost of construction (up to $5,100.00) , and shall have and retain all rights of ownership to such fence. Said fence, or a substantially similar replacement fence, shall be maintained and remain in place when the shelter property is used as a homeless shelter during the thirty (30) year period from the effective date of this Agreement, excluding reasonable periods when the fence is being replaced. 13. During the period extending thirty (30) years from the effective date of this Agreement, and when the shelter property is operated as a homeless shelter, a clear zone will be maintained in the narrow outside area adjacent to the north wall of the shelter building on the shelter property, between the shelter property and the cemetery property, in the approximate location depicted on Exhibit A, in which clear zone shelter residents will not be permitted to enter or occupy, except in situations of emergency, and the shelter residents shall be so instructed by shelter staff. 14. For a period of three (3) years from the effective date of this Agreement, as set forth above, the van service presently available for project residents shall be continued, and shall not be substantially diminished or terminated, when the shelter property is operated as a homeless shelter. The Page 6 County will pursue the establishment of a bus stop for public transportation in front of, or east of, the shelter property on Arnold Industrial Way, and no closer than one hundred (100) feet to the southeast corner of the cemetery property on Arnold Industrial Way. MISCELLANEOUS GENERAL TERMS 15. Any action concerning or to enforce any term of this Agreement shall be brought in the Superior Court of the State of California in and for the County of Contra Costa, unless the Parties agree otherwise in writing. 16. Each of the Parties represents and warrants that during the course of the negotiations leading to the agreements reflected herein, it consulted with and obtained the advice of counsel, and that this Agreement and each of its terms was and is drafted, arrived at and agreed upon through a process of mutual negotiation. 17. This Agreement shall be binding upon, and shall inure to the benefit of, each party hereto, and to each of their respective heirs, successors and assigns. 18. This Agreement is entered into voluntarily, and for purposes of compromise, and by executing said Agreement no party admits or claims any Page 7 fault, liability or wrongdoing, or makes any statement regarding the merits of the claims or actions which were the subjects of the Consolidated Action or the final Board action. Further, each party represents and warrants that it is fully authorized and empowered to enter into this Agreement and to carry out its terms. 19. This Agreement and each of its terms shall be construed, interpreted and enforced in accordance with the laws of the State of California. 20. If any provision, or any part thereof, of this Agreement is for any reason determined to be invalid, unenforceable or contrary to law or public policy, then the remainder of this Agreement shall not be affected thereby, and shall remain valid and fully enforceable. 21. This Agreement. contains the entire agreement of the Parties with respect to the matters covered hereby, and supersedes any and all oral or written understandings, representations or agreements between the Parties with respect to the subject matter of this Agreement. This Agreement may not be modified except in a writing executed by all of the Parties. 22. This Agreement may be executed simultaneously or in any number of counterparts, each of which shall be deemed an original, equally admissible in Page 8 evidence, but all of which together shall constitute one and the same agreement. 23. The Parties agree that immediately upon execution by all Parties hereto, this Agreement shall be deemed effective as of the date first set forth above on Page One (1) hereof. THE FOREGOING IS UNDERSTOOD, ACKNOWLEDGED, AND AGREED. Dated: MEMORY GARDENS, INC. By: Title: Dated: BOARD OF SUPERVISORS FOR CONTRA COSTA COUNTY By: Title: Page 9 Dated: HOUSING AUTHORITY OF CONTRA COSTA COUNTY By: Title: END OF AGREEMENT. THERE ARE NO OTHER TERMS HEREAFTER, ABSENT A FULLY EXECUTED V{TRITTEN MODIFICATION. 7:memgard.stl Page 10 ua _ -rte --•-- - --- - -- - �r�� JULY 27. 1994 �J r 1 QC�C S • !7 pROP05ED FENCE 110 FEET ; SNF�� � �• yr �.' t4M ' r , t MEMORY GARDENS, INC- E-Y, NC-Y,I-A 1 r,-v- i