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Home My WebLink AboutMINUTES - 05111993 - 1.75 TO: BOARD OF SUPERVISORS FROM: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Asst County Counsel DATE: May 6, 1993 SUBJECT: Fawcett, et al. v. Board of Supervisors, et al. ; Concerned Citizens of Morgan Territory Valley, et al. v. Board of Supervisors, et al. SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Receive this report concerning the subject settlement. FISCAL IMPACT None BACKGROUND/REASONS FOR RECOMMENDATIONS County Counsel has met with the Board of Supervisors in closed session to discuss settlement negotiations in the above lawsuits, and the Board has approved the attached settlement agreement. This action should be taken so that terms of this settlement are known publicly. CONTINUED ON ATTACHMENT: YES SIGNATURE,�� d RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF 'BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON 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 ATTEST: May 11, 1993 cc: Community Development Department Public Works Department PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR CONTACT: Silvano Marchesi, 646-2054 BY , DEPUTY i SETTLEMENT AGREEMENT, MUTUAL RELEASE, AND COVENANT NOT TO SUE This Settlement Agreement, Mutual Release and Covenant Not to Sue ( "Agreement" ) is entered into by and between THOMAS FAWCETT, WILLIAM STIPEK, DAN HENRY, PETER LAMOREAUX, and CONCERNED RESIDENTS OF MORGAN TERRITORY VALLEY, an unincorporated association ( "Petitioners" ) , and ROBERT PACINI and ASPARA, INC. , a California corporation ( "Real Parties in Interest" ) . All of the above-named entities are sometimes referred to in this Agreement as the "Parties . " RECITALS A. There is now pending in the Court of Appeal of the State of California a lawsuit entitled Fawcett, et al . v. Board of Supervisors, et al . , A056001 , Contra Costa County No . C 90-02319 . There also is now pending in the Superior Court of the State of California, County of Contra Costa, a lawsuit entitled Concerned Citizens of Morgan Territory Valley, et al . v. Board of Supervisors, et al . , Contra Costa County No . C 92-05070 . These lawsuits constitute the "Actions . " B. The Parties desire to compromise the Action completely between themselves without any admission of liability and to avoid the expense of further litigation. 1 AGREEMENT 1 . This Agreement shall be a "Final Settlement" on the date it was executed by the last Party to execute it . 2 . This Agreement binds each Party entering into the Agreement and each Party' s members, employees, agents, successors, and assigns . Each Party enters into this Agreement on behalf of itself and its members, employees, agents , successors, and assigns . 3 . The Parties agree that the security gate provided for in condition 20 of the conditions of approval of the tentative subdivision map for "Mountain Meadows 2, " the subdivision which is the subject of this litigation, will be deleted from the conditions . This change to the conditions shall be exempt from the provisions of paragraph 6 of this Agreement . 4 . Real Parties in Interest agree that horses belonging to homeowners in the Mountain Meadows 2 subdivision will not be allowed to use Whispering Pines Road, within the Mountain Meadows 1 Subdivision. This restriction will be incorporated in the Covenants, Conditions and Restrictions recorded for the Mountain Meadows 2 subdivision. 5 . The Parties agree that none of Petitioners ' properties will be involved in the easement to be provided for horse use. 2 6 . Real Parties in Interest agree that they will seek no more than one set of changes in the conditions of approval of the tentative subdivision map for "Mountain Meadows 2" per year . Any changes requested by Real Parties in Interest will be considered a discretionary approval and will be subject to review under CEQA and will be subject to appeal to the Board of Supervisors at a public hearing. 7 . Real Parties in Interest agree to pay to Petitioners and their attorneys the total sum of $25, 000 to be paid in two installments : $10 , 000 within 30 days of final settlement and the remaining $15,000 as of the date of recordation of the final subdivision map for "Mountain Meadows 2 . " 8 . Within ten days of final settlement, Petitioners agree to dismiss with prejudice the Action, which includes both the lawsuit now pending on appeal (C90-02319) and the lawsuit against the new project approval now pending in the Superior Court (C92-05670) . 9 . Each Party releases and forever discharges the other from and waives any and all known or unknown claims, demands, controversies, actions, causes of action, obligations, damages , liabilities and costs of any nature whatsoever , whether at law or in equity that it ever had, now has, or that it may have after the date of this Agreement against the other that arise out of the subject matter of the Action. 3 10 . The waivers and releases in this Agreement include waivers and releases of all claims for costs, expenses and attorneys ' fees , taxable and otherwise, incurred in or arising out of the prosecution or defense of the Action. 11 . Each Party agrees that it will not commence, maintain, continue or voluntarily assist in any way in the prosecution by any other person or entity of any claim against the other, any related corporate entity, or any present or former employee of the other , relating to the subject matter of the Action. 12 . Each Party declares that prior to the execution of this Agreement, it has apprised itself of sufficient relevant facts in order that each Party might intelligently exercise its judgment in deciding whether to execute, and in deciding on the contents of, this Agreement . Each Party assumes the risk that facts may be later found to be other than or different from the facts now believed by it to be true. Each Party declares that the decision to execute this Agreement is not influenced by any representations of the other Party, except for representations made expressly by the other party in this Agreement . 13 . The contents of this Agreement have been explained to each Party by its counsel . This Agreement is entered into freely and voluntarily, upon the advice and with the approval of counsel . 4 14 . Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement . Each Party represents that it is duly authorized to enter into this Agreement, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity. Concerned Citizens of Morgan Territory Valley represents and warrants that its is authorized to sign this Agreement on behalf of its members . 15 . This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts between California residents made and to be performed in California. 16 . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original , and counterpart signature pages may be assembled to form a single original document . 17 . Each Party shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement . 18 . This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral . There are no obligations, commitments, representations or warranties relating to them 5 except those expressly set forth in this Agreement . 19 . No amendment of , supplement to or waiver of any obligations under this Agreement will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought . IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates indicated below. Dated: April 2Y, 1993 Authorized Representative of Concerned Residents of Morgan Territory Valley Dated: April 1993 Tho as Fawcett Dated: April 2-1, 1993 William StipEk Dated: AprilZ- , 1993 W Dah H6rfry Dated: April 1993 /+ Peter tamoreaux Dated: April 1993 Robert Pacini 6 except those expressly set forth in this Agreement . 19 . No amendment of, supplement to or waiver of any obligations under this Agreement will be enforceable or admissible unless set forth in a writing signed by the Party against which enforcement or admission is sought . IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates indicated below. Dated: April 1993 Authorized Representative of Concerned Residents of Morgan Territory Valley Dated: April 1993 Thomas Fawcett Dated: April 1993 William Stipek Dated: April 1993 Dan Henry Dated: April 1993 eter Lamoreaux Dated: April , 1993 Ro ert Pacini 6 Dated: April, 1993 4oVbertPacini Authorized Representative of Aspara, Inc . Dated: April K, 1993 �'�' - �P-5 James M. Ashloc Authorized Representative of Aspara, Inc . Dated: April 1993 Authorized Representative of Contra Costa County and Board of Supervisors of Contra Costa County Approved as to Form: Stuart M. Flashman Attorney for Petitioners Thomas Fawcett, William Stipek, Dan Henry, Peter Lamoreaux and Concerned Residents of Morgan Territory Valley McCUTCHEN, DOYLE, BROWN & ENERSEN By Stephen L. Kostka Attorneys for Real Parties In Interest Robert Pacini and Aspara, Inc . SLK:aad/2.2 1585h 7 Dated: April 1993 Robert Pacini Authorized Representative of Aspara, Inc . Dated: April 1993 James M. Ashlock Authorized Representative of Aspara, Inc . Dated: 1993 Authorized Representative of Contra Costa County and Board of Supervisors of Contra Costa County Approved as to Form: Stuart M. Flashman Attorney for Petitioners Thomas Fawcett , William Stipek, Dan Henry, Peter Lamoreaux and Concerned Residents of Morgan Territory Valley McCUTCHEN, DOYLE, BROWN & ENERSEN By Stephen L. Kostka Attorneys for Real Parties In Interest Robert Pacini and Aspara, Inc . SLK:aad/2.2 1585h 7 Dated: April 1993 Robert Pacini Authorized Representative of Aspara, Inc . Dated: April 1993 James M. Ashlock Authorized Representative of Aspara, Inc . Dated: April 1993 Authorized Representative of Contra Costa County and Board of Supervisors of Contra Costa County Approved as to Form: Stuart K. Flashman Attorney for Petitioners Thomas Fawcett , William Stipek, Dan Henry, Peter Lamoreaux and Concerned Residents of Morgan Territory Valley MCCUTCHEN, DOYLE, BROWN & ENERSEN By St-c1ph6iVrL. Kostka Attorneys for Real Parties In Interest Robert Pacini and Aspara, Inc . SLK:aad/2.2 1585h 7 April 20, 1993 HAND DELIVERED Concerned Residents of Morgan Territory Valley, et al. Stuart M. Flashman 5626 Ocean View Drive Oakland, CA 94618 Fawcett, et al. v. Board of Supervisors Settlement Agreement Dear Stuart: This letter constitutes a supplement to the settlement agreement in the above-named case, in accordance with Paragraph 19 of said agreement. This is to confirm our emphatic opposition to any and all present or future proposals to link up Whispering Pines Road so that it becomes a through street. We will do everything within our legal authority to oppose any such proposal. This supplementary agreement shall also be binding on our agents, employees, successors, and assigns. Most sincerely, Robert Pacini James Ashlock For Themselves and on behalf of Aspara, Inc. 02291