HomeMy WebLinkAboutMINUTES - 07121994 - 1.121 Contra
TO: BOARD OF SUPERVISORS '
`s Costa
0 .rl; '
FROM: Victor J. Westman, County Counsel ', '� o County
By: Diana J. Silver, Deputy County Counsel y�, �*f y,4 �y
DATE: July 12 1994 rA.cbvK
SUBJECT: Settlement Agreement in Save our Hills et al. v. Contra Costa
Board of Supervisors et al . (Wiedemann Ranch Residential
Community, Norris Canyon area)
SPECIFIC REQUEST(S) . OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION•
Accept, approve and authorize County Counsel to sign a
settlement agreement on behalf of Contra Costa County and Board of
Supervisors in above-referenced litigation.
BACKGROUND:
Following a hearing on a petition for a writ of mandate
challenging Board approvals for the Wiedemann Ranch Residential
Community, Contra Costa Superior Court Judge Trembath denied the
writ and judgment was entered in favor of the Board of Supervisors,
the County and the property owners . After costs were awarded to
the property owners and petitioner filed an appeal, petitioner
and real parties in interest agreed to waive costs, dismiss the
appeal and leave the judgment in . full force and effect . This
office concurs with these terms of settlement and requests the
Board' s approval of the agreement.
CONTINUED ON ATTACHMENT: YES
SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF `BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON July 12 , 1994 APPROVED AS RECOMMENDED _x OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
_ x 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 ATTESTED_ July 12 , 1994
cc: Dennis Barry, Community Development Dept. PHIL BATCHELOR, CLERK OF
THE BOARD OF SUPERVISORS
CO ADMINISTRATOR
BY � , DEPUTY
CONTACT: Diana Silver
cc:
...........
•0. • 1
FINANCIAL PARTICIPATION AGREEMENT BETWEEN
THE CONTRA COSTA COUNTY REDEVELOPMENT AGENCY
AND THE CONTRA COSTA COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
RELATING TO THE WILDCAT-SAN PABLO CREEK
FLOOD CONTROL PROJECT
This Agreement is entered into as of the 26th day of April, 1994, by and between the Contra Costa
County Redevelopment Agency, a public body corporate end politic(Agency") and the Contra Costa
County Flood Control and Water Conservation District, a political subdivision of the State of
California("District") pursuant to the joint exercise of powers provisions of California Government
Code Sections 6500-6522, and Health and Safety Code Section 33445.
RECITALS
1. On July 14, 1987, by Ordinance No. 87-50, the Agency adopted the North Richmond
Redevelopment Plan (the "Plan"). The Plan calls for public improvements in the North
Richmond Redevelopment Project Area("Project Area") that will eliminate blight and result
in overall benefit to the Project Area residents.
2. The District is currently involved in constructing the Wildcat-San Pablo Creek Project (the
"Flood Control Project"). The Flood Control Project consists of channel improvements in
the lower reaches of the two streams west of the Santa Fe Railroad right-of-way. The
channel improvements have been completed to the Southern Pacific Railroad right-of-way.
The completion of the Flood Control Project, to which the Agency funding would be applied,
is the completion of channel improvements from the Southern Pacific Railroad right-of-way
to the Santa Fe Railroad right-of-way ("Contract 3 and Contract 3A!'). Drainage
improvements are identified in the Plan as improvements eligible to receive Agency funding.
3. It is the determination of the Agency that the improvements constructed as part of the Flood
Control Project are ofbenefit to the Project Area because it will remove a significant amount
of land in the Project Area from the 100-year Floodplain, as designated by the National Flood
Insurance Program;that the District has sought every reasonable source of financing for the
required local match, including the District reducing Districtwide planning costs to the
maximum prudent level, and that no other reasonable means of financing the final $400,000
gap exists; and the funding of the Flood Control Project addresses blighting conditions
identified in the Plan, including the lack of adequate infrastructure, that has contributed to a
level of disinvestment in the Project Area that inhibits the generation of employment-related
development which would, in turn, assist in addressing blight characterized as social and
economic maladjustment, and manifested as very low income levels, high unemployment, and
a significant criminal justice problem.
4. By this Agreement,the Agency and the District desire to provide for thd-funding of a portion
of the cost of the installation and construction of the Flood Control Project between the
Southern Pacific Railroad and the Santa Fe Railroad rights-of-way.
5. This Agreement shall constitute an indebtedness of the Agency for the purposes of carrying
out the Redevelopment Project for the Project Area, which indebtedness may be made
payable out of taxes levied in the Project Area and allocated to the Agency under Subdivision
(b) of Health and, Safety Code Section 33670, or out of any other available funds of the
Agency.
AGREEMENT
Agency and District hereby agree as follows:
L D-42MVEMIENTS
The total improvements to be constructed as part of Contract 3 and Contract 3A of the Flood
Control Project are as follows (the "Improvements"):
Channel improvements from the Southern Pacific Railroad right-of-way to the Santa
Fe Railroad right-of-way("Contract 3 and Contract 3A").
Il. METHOD
The District shall prepare the plans and specifications, advertise for bids, award the Project,
administer the contract, perform all construction, installation and inspection and take arry
other actions necessary for the completion of Improvements. The Agency's participation shall
be limited to the payment of a portion of the Project costs as set forth in Section III of this
Agreement-
III. COST
A. The approximate total cost of the Contract 3 and Contract 3A Improvements to be
constructed pursuant to this Agreement is S . Agency and District Ar" pro"
agree that all of the costs of the installation and construction of the Flood Control
Project will be paid or provided for initially by the Flood Control District. The
Agency's contribution to the costs of construction and installation shall be limited to
the total sum of$400,000, plus simple interest accruing from and after January 1,
1996 until paid in full, as further described in Subsection B hereof
2
l .
B. (1) The Agency's obligation to make payment pursuant to this Section III shall be
in accordance with the following terms and conditions: On the later of(i) six
(6)years from the effective date of this Agreement, or(ii) the date of sale of
the District's parcel 408-201-017 referenced in this Section III, Paragraph
B.(2)below, Agency shall pay to the District the principal sum of$400,000,
plus any accrued interest, in full satisfaction of its obligations under this
Agreement. No interest shall accrue on said sum prior to January 1, 1996.
Any amount of principal that is not paid on or before January 1, 1996 shall
bear simple interest from January 1, 1996 until paid in full at a rate of interest
equal to the rate of interest paid by the District on the borrowed funds.
(2) The Agency obligation described in Paragraph III.B.(1) may be reduced as
follows:
District commits to the sale of parcel number 408-201-017 (3rd and
Brookside,North Richmond)by July 1, 2001, and the allocation of all
revenues, less reasonable sales expenses, in excess of $500,000
($3.64/sq. ft.) in the following manner:
(La) District and Agency interest cost on the $400,000 from July
1, 1994 through July 1, 2001 shall have first claim on said
incremental increase in revenue; and
(ii.b) District and Agency shall share equally the remaining increase
in revenue.
The District shall consult with the Agency prior to committing to any sale of
the above parcel.
IV. ACCOUNTABELM
District shall be strictly accountable for all funds under its control. Upon request, District
shall report all receipts and disbursements to the Agency and shall provide the Agency with
any documentation deemed necessary by the Agency to verify said expenditures.
V. TIER1
This Agreement shall remain in effect until all improvements have been constructed and all
final payments required herein have been made.
3
VI. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended or shall be construed to create rights in any third
person not a party to this Agreement.
CONTRA COSTA COUNTY CONTRA COSTA COUNTY FLOOD
REDEVELOPMENT AGENCY CONTROL AND WATER
CONSERVATION DISTRICT
• Q/
By: By:
Kennedy/ J. Michael Walford
D puty Director, -Redevelopment Chief Engineer/Public Works Director
X-JW naNa
4
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COMPROMISE AND RELEASE AGREEMENT BETWEEN
SAVE OUR HILLS AND PRESERVE AREA RIDGELANDS COMMITTEE,
AND BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CONTRA
COSTA COUNTY, HCV AND ASSOCIATES, LTD., JEFFREY C. WIEDEMANN,
NANCY A. WIEDEMANN, AND SUSAN G. CHRISTENSEN
This Compromise and Release Agreement (&Agreement&) is
entered into by and between Save Our Hills (&SOH&) and Preserve
Area Ridgelands Committee (&PARC&) , and the Board of Supervisors
of Contra Costa ("Board") , and Contra Costa County (&County&) ,
and HCV and Associates, Ltd. ("HCV") , Jeffrey C. Wiedemann, Nancy
A. Wiedemann, and Susan G. Christensen (HCV, the Wiedemanns and
Christensen together referenced as "Property Owners") .
RECITALS
A. The Property Owners have an equitable or legal interest
in approximately 1, 143 acres off Norris Canyon Road in Contra
Costa County. On December 8, 1992, the Property Owners, with HCV
as the applicant, received various approvals from the Board to
develop a portion of such acreage as a 371-unit residential
development, called Wiedemann Ranch Residential Community
("WRRC", or "Project") . Such approvals included, but were not
limited to, a tentative map, rezoning, preliminary development
plan, and certification of a Final Environmental Impact Report
(FEIR) for the project.
B. On March 15, 1993, SOH, an unincorporated association,
and PARC, a nonprofit corporation, filed a Petition for Writ of
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Mandate in Superior Court, County of Contra Costa, against the
Board, the County, and the Property Owners, challenging several
of the Board's approvals of the Project.
C. By Joint Settlement Statement and Statement of Issues
filed August 3, 1993 ("'Statement of Issuesn) , the parties
stipulated to narrow the issues to be addressed in the Petition.
Following the submittal of briefs by all parties, a hearing was
held on October 21, 1993, by Judge Trembath of the Superior
Court. Following the hearing, a Tentative Decision was issued,
which after amendment and filing on February 2, 1994, became a
Statement of Decision. Judgment on Petition for Writ of Mandate
was filed and entered on February 18, 1994 ("Judgment") . The
Judgment provided that the Petition for Writ of Mandate was
denied in all respects. Judgment was entered in favor of the
Board, County, and the Property Owners and they were awarded
costs of suit.
D. On April 11, 1994, SOH and PARC filed a Notice of
Appeal, Notice to Prepare Reporters• Transcript, and Notice of
Election to Proceed under CRC 5. 1, appealing the Superior Court's
Judgment to the Court of Appeal for the First District
("Appeal") .
E. Following entry of the Judgment, the Property Owners
submitted to the Superior Court a Memorandum of Costs, alleging
costs of suit in the sum of $23,720.71. SOH and PARC
d
subsequently made a motion to tax a portion of such costs,
specifically the costs relating to a scale model of the site and
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1
for an exhibit consisting of a summary of visual data utilized at
the trial. After motions and hearings, Judge Trembath granted
the motion to tax in part and denied in part, allowing costs in
the total sum of $9,268.21.
F. Following filing of the Notice of Appeal and the
decision by Judge Trembath on the motion to tax costs, SOH and
PARC indicated a desire to resolve and settle this litigation.
For mutual consideration and upon the express terms and
conditions as more thoroughly set forth herein, the parties
therefore agree as follows:
TERMS
1. General Mutual Release
a. For good and valuable consideration, each party,
on behalf of itself and its successors and assigns, releases and
forever discharges the other parties and their respective present
and former members, officers, agents and employees from any and
all rights, claims, demands, obligations, causes of actions or
liabilities of any nature whatsoever, arising out of the County's
approval of the WRRC Project as set forth in the Recital A,
above, including all actions and Board approvals, whether listed
or not, taken on December 8, 1992, and all other County Project
approvals through the effective date of this Agreement.
b. Each party expressly waives any rights or benefits
available to it under the provisions of § 1542 of the California
Civil Code, which states as follows:
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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.
Each party agrees and represents that it fully
understands the statutory language of Civil Code Section 1542,
and with this understanding, nevertheless elects to, and does,
assume all risks for rights, claims, demands, obligations, causes
of action or liabilities known or unknown, heretofore and
hereafter arising from the subject matter of this litigation.
2. Dismissal of Appeal
a. SOH and PARC agree upon execution of this
Agreement to immediately take all steps necessary to secure the
dismissal of the pending Appeal, pursuant to Rule 19 of the Rules
of Court, including if necessary the preparation and execution of
a stipulation for dismissal between all parties as allowed under
Rule 19(b) , and to deliver an order of dismissal and/or any and
all other documents evidencing such dismissal to the counsel for
the Board and the County, and to counsel for the Property Owners.
b. Each party to this Agreement shall cooperate fully
in the execution of any and all other documents and in the
completion of additional actions that may be necessary or
appropriate to dismiss the Appeal, and/or to give full force and
effect to the terms and intent of this Agreement.
C. In the event the Court of Appeals does not dismiss
a
the Appeal within thirty (30) days of the effective date of this
Agreement, this Agreement shall be null and void.
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3. Res Judicata and Scope of Any Future Litigation
a. The parties recognize and agree that
notwithstanding the mutual release contained in Section 1, above,
and except for the waiver of costs of suit by the Property Owners
as referenced below, the Superior Court's Judgment remains in
full force and effect. The doctrine of res judicata shall apply
in accordance with common law, case law and applicable statutes,
with regard to the referenced Judgment.
b. Nothing in this Agreement bars or limits the right of
SOH and/or PARC to legally challenge future Project approvals,
permits or entitlements, arising after the effective date of this
Agreement, to the extent that such challenge(s) address
subsequent changes in the Project or inconsistencies between the
Project as originally approved and as subsequently proposed, and
which are not: (i) based on the same issue or issues that were,
or could have been, the subject of the Petition for Writ of
Mandate in the present litigation, or (ii) otherwise barred by
the applicable statute of limitations, res judicata, collateral
estoppel, laches, or other similar legal or equitable defense.
4. Costs and Attorneys' Fees
a. Each party to this Agreement shall bear its own
attorneys' fees and costs arising from the subject litigation,
including the Appeal and the preparation and negotiations for
this Agreement, and all related matters. The Property Owners
a
thus agree to waive all costs of suit awarded them by the
Judgment in the Superior Court.
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b. In the event of litigation for breach of this
Agreement or to enforce this Agreement, or any provision thereof,
the prevailing party shall be entitled to recover costs and
attorneys$ fees, in such litigation, in addition to damages.
5. Entire Agreement
This Agreement contains the entire Agreement between
the parties.
6. Governing Law
This Agreement is entered into, and shall be construed
and interpreted in accordance with, the laws of the State of
California.
7. Comprehension/Joint Preparation
In entering into this Agreement, each party represents
and warrants that he or she has relied upon the legal advice of
their respective attorneys, who are the attorneys of their own
choosing. Each party further represents and warrants the terms
of this Agreement have been completely read and explained to them
by their attorneys, and that those terms are fully understood and
voluntarily accepted by both their attorneys and themselves.
Accordingly, any rules of construction of this state, to the
effect that any ambiguities are to be resolved against the
drafting party, shall not be employed in the interpretation of
this Agreement, or any amendment of it.
S. Consideration
N
Each party agrees and acknowledges that good and
sufficient consideration supports this Agreement and its
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provisions, and that this consideration is accepted as full and
complete compromise of the rights, claims, demands, obligations,
causes of action or liabilities arising from the subject matter
of the litigation referenced herein.
9. No Admission of Liability
Each party agrees and acknowledges that this Agreement
does not constitute an admission of liability or an admission
that any of the facts asserted in the lawsuit by any party hereto
are true or that any claim or any portion thereof asserted by any
party hereto is well-founded.
10. Authority to sign Agreement
All signatories to this Agreement warrant that they
have authorization to sign this Agreement. The SOH signatories
warrant that each member of the unincorporated association, in
their capacity as members of the association, have authorized the
SOH signatories to sign this Agreement. The corporate
signatories of this Agreement warrant that they have the
authorization of their respective board of directors to sign this
Agreement. The HCV signatory to this Agreement warrants that he
has partnership authority to sign this Agreement.
11. Effective Date
This Agreement shall be effective on the date last set
a
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forth beside the signatures below.
PRESERVE AREA RIDGELANDS COMMITTEE
a California nonprofit corporation
Date: By:
JAMES BLICKENSTAFF
President
AND
Date: By:
Secretary
SAVE OUR HILLS
an unincorporated association
Date: By:
Executive Committee Member
AND
Date: By:
Executive Committee Member
COUNTY OF CONTRA COSTA
BOARD OF SUPERVISORS
Date: By:
County Counsel
HCV AND ASSOCIATES, LTD. ,
a California Limited Partnership
By: HCV Pacific Development IV, a
California Limited Partnership
By: HCV Pacific Partners, a
California general partnership,
as its General Partner
By: RJV Properties, Inc. , a
California corporation, as its
General Partner
By:
RANDALL J. VERRUE, President
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JEFFREY C. WIEDEMANN
Date: By:
JEFFREY C. WIEDEMANN
NANCY A. WIEDEMANN
Date: By:
NANCY A. WIEDEMANN
SUSAN G. CHRISTENSEN
Date: By:
SUSAN G. CHRISTENSEN
a
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