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HomeMy WebLinkAboutMINUTES - 06201995 - CS A.3 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA DATE: June 20, 1995 MATTER OF RECORD At 12 p.m. this day the Board recessed into Closed Session in Room 105 of the County Administration Building, 651 Pine Street, Martinez, pursuant to the schedule noted on the. Closed Session Agenda, copy attached. At 1: 15 p.m. the Board reconvened in its Chambers. The Chair announced that a Settlement Agreement had been agreed to with the City of Pleasanton in the case of the Town of Danville, et al. , vs. the County of Contra Costa, et al. , with all five Supervisors voting aye. The Board then proceeded with its regular agenda. THIS IS A MATTER FOR RECORD PURPOSES ONLY SUPPLEMENTAL CALENDAR OF CLOSED SESSION ITEMS FOR THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY AND FOR SPECIAL DISTRICTS, AGENCIES, AND AUTHORITIES GOVERNED BY THE BOARD BOARD CHAMBERS AND ROOM 105, ADMINISTRATION BUILDING TUESDAY, JUNE 20, 1995, 12:00 P.M. AND THEREAFTER DURING THIS REGULAR JUNE 20, 1995 MEETING A. EXISTING LITIGATION - CONFERENCE WITH LEGAL COUNSEL (LITIGATION HAS BEEN FORMALLY INITIATED, GOV. CODE, F4 54956.9(a), CASES: 1. Darlene Bonnano v. C.C.C., et al., C.C.C. Sup. Ct. No. C94-00510 2. Debra Ann Maus v. C.C.C., et al., C.C.C. Sup. Ct. No. C94-03430 3. Town of Danville, et al. v. Co. of Contra Costa, et al. B. PUBLIC EMPLOYEE APPOINTMENT: 1. County Social Service (Welfare) Director df: wpwin\docs\cl-ses.spl df10(2) : cl-ses.spl VICTOR J. WESTMAN CONTRA COSTA COUNTY COUNSEL TO CLERK OF THE BOARD P.O. Box 69. Co. ADMIN. BLDG., MARTINEZ. CA 94553 Attn: Ann Cervelli DATE 8 Nov 95 SUBJECT Dougherty Valley Settlement Enclosed for your files is a signed (original) copy of the settlement agreement between the County and the City of Pleasanton in the case of Town of Danville et al . v. County of Contra Costa, et al. This agreement was approved by the Board on 20 .bine 1995. Thank you for your assistance. Silvano Marchesi r SETTLEMENT AGREEMENT This Agreement is entered into this 20th day of June, 1995, by the City of Pleasanton, a municipal corporation ("Pleasanton") , the County of Contra Costa, a political subdivision of the State of California (the "County") , Windemere Ranch Partners, A California limited partnership ("Windemere") , and Shapell Industries, Inc. a Delaware corporation ("Shapell") . Recitals A. Windemere and Shapell are the owners of certain real property (the "Property") in the Dougherty Valley, which is located in an unincorporated area of southern Contra Costa County. In response to proposals by Windemere and Shapell to develop the Property, the County initiated a study to amend the County general plan (the "GPA") and to adopt a specific plan (the "Specific Plan") for the Property. As part of the study, the County caused to be prepared a final environmental impact report (the "EIR") for the proposed GPA, Specific Plan and certain other approvals relating to the development of the Property (the "Project") . B. On December 22 , 1992 , the County Board of Supervisors approved Resolutions 92/866 and 92/867 which, among other things, certified the EIR, approved the GPA and approved the Specific Plan ("the 1992 Approvals") . C. On January 21, 1993 , Pleasanton, the Town of Danville, the cities of San Ramon and Walnut Creek, the Alamo Improvement Association, the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and Mount Diablo Audubon Association (collectively, "the Petitioners") filed a lawsuit entitled Town of Danville, et. al v. County of Contra Costa et al. Case No. C 93-00231 (Contra Costa County Superior Court) (the "Lawsuit") challenging the adequacy of the EIR and the 1992 Approvals. D. On May 9, 1994 , the Lawsuit was heard in Contra Costa Superior Court before the Honorable David L. Allen. E. On May 11, 1994 , Danville, San Ramon, the County, Windemere and Shapell entered into a settlement agreement relating to the Lawsuit (the "Danville Settlement Agreement") . Danville and San Ramon subsequently dismissed with prejudice all of the causes of action brought by Danville and San Ramon. 1 1 ft F. On June 16, 1994 ; the Court issued its Ruling on the Lawsuit, upholding the Petitioners' claims in part and denying them in part. G. On July 18 , 1994 , the Court issued a Judgment and Peremptory Writ of Mandate ordering the County to set aside its certification of the EIR and the 1992 Approvals; on July 30, 1994, the Court issued an Amended Peremptory Writ of Mandate correcting errors contained in the original Peremptory Writ. H. On September 19, 1994 , Pleasanton and the other remaining petitioners filed a notice of appeal. The County, Shapell and Windemere subsequently filed cross-appeals. I. Pleasanton has reviewed the Danville Settlement Agreement, a draft Development Agreement, dated May 24 , 1994 , between the County and Shapell (the "Shapell Development Agreement") , a draft Development Agreement, dated March 10, 1994, between the County and Windemere (the "Windemere Development Agreement") , draft Ordinances rezoning land in the San Ramon Area from Agricultural District to Planned Unit District (P-1) [112992- RZ and 2993-RZ11) , draft Preliminary Development Plans in connection with said Ordinances ("PDP") and draft Conditions of Approval for 2992-RZ and 2993-RZ ("Conditions of Approval") . J. The parties hereto desire to resolve the Lawsuit without prosecuting the appeals to their conclusion. Agreement In consideration of the terms and conditions of this Agreement, the parties hereto agree as follows: 1. Mitigation of Traffic Impacts Windemere and Shapell shall pay to Pleasanton $150 for each residential unit in the Project other than for the 1216 units in the Country Club at Gale Ranch portion of the Project. The purpose of this payment is to mitigate the impacts on Pleasanton which the Project's traffic is likely to cause. This amount will be collected from Windemere or Shapell by the County at the time the County issues a building permit for each unit if the unit is then in the unincorporated area of the County. To ensure that the amount per unit continues to be collected if an area of the Project is annexed to a city, (a) County, Windemere and Shapell shall include this obligation to collect this amount as a part of any development agreement into which the County enters with Windemere and Shapell; (b) County shall request that the Contra Costa County Local Agency Formation Commission impose this obligation as a condition of annexation of the Project area, or any part thereof; and (c) Windemere and Shapell shall include this obligation as part of any preannexation or annexation agreement into which it enters with an annexing city. If the 2 unit is within an area subsequently annexed to a city, Windemere and Shapell shall pay the amount to the annexing city at the time the building permit is issued. County, or annexing city, shall .transmit the amount collected pursuant to this agreement to Pleasanton quarterly. This payment is not in lieu of, or to be a credit toward, any regional traffic impact fee, ,or any other fee, which Windemere and Shapell may be obligated to pay. This payment is also not in lieu of, or to be a credit toward, any fee which Windemere or Shapell may be obligated to pay to satisfy Windemere's or Shapell's obligation under any deficiency plan, as described in Government Code, §65089 . 4 . 2 . Wastewater and Water for the Project (a) Approval of tentative subdivision maps relating to the Property shall be conditioned on verification of adequate wastewater treatment capacity for the project, the condition to be satisfied at the final map, by verification that capacity exists to serve the specific project ("will serve letters") , actual hook ups or comparable evidence of adequate sewage collection and wastewater treatment capacity availability. (b) The preferred wastewater provider for the Project is the Central Contra Costa Sanitary District ("Central San") . Pleasanton shall not challenge the Project's annexation to Central San nor the 1992 Approvals in connection with the Project's annexation to Central San. Windemere and Shapell shall act diligently to annex the Project area to Central San. (c) The Project shall not utilize wastewater services provided by the Dublin San Ramon Services District ("DSRSD") , the Livermore Amador Valley Water Management Agency (LAVWMA) nor the Tri-Valley Wastewater Authority ("TWA") unless diligent efforts to .use Central San or other alternatives are unsuccessful. The County shall not approve any future maps whereby wastewater services would be provided by DSRSD, LAVWMA or TWA, including the . use of treated wastewater on or over property overlying the Livermore-Amador Valley Groundwater Main Basin ("Main Basin") or the interjection of such treated wastewater into the Main Basin, unless and until legally adequate environmental review, as may be required under the California Environmental Quality Act ("CEQA") , has been completed. (d) Approval of tentative subdivision maps relating to the Property shall be conditioned on verification of an adequate water supply for the Project, the condition to be satisfied at the final map, by verification, based on substantial evidence in the record, that capacity within the system to serve the specific development project exists, or comparable demonstration of adequate water capacity. (e) Water may be provided for the Project by the East Bay Municipal Utility"District ("EBMUD") . Pleasanton shall not 3 challenge the Project's annexation to EBMUD nor the 1992 Approvals in connection with the Project's annexation to EBMUD. (f) Water may be provided for the Project by DSRSD. If DSRSD provides water for the Project, it will be with water for which DSRSD has, or will have, permanently contracted with a water entitlement holder outside the current service area of the Alameda County Flood Control and Water Conservation District, Zone 7 ("Zone 711) ; in no event will it be with water from DSRSD's so called Groundwater Pumping Quota as that term is used in DSRSD's contract with Zone 7 . For purposes of this subparagraph (f) , the permanent contract with a water entitlement holder may be with Zone 7 so long as the water provided to the Project is not water from the Main Basin. County shall not approve any future maps whereby DSRSD will provide water to the Project except as provided in this paragraph and unless and until •legally adequate environmental review, as may be required by CEQA, has been completed. (g) If the conditions described in subparagraphs (c) and/or (f) are satisfied, Pleasanton shall not challenge the Project's annexation to DSRSD nor the 1992 Approvals in connection with the Project's annexation to DSRSD. 3 . Dismissals of Actions, Including Appeals If all Petitioners reach settlement with the County, Windemere and Shapell, Pleasanton shall take action, jointly with the other Petitioners, County, Shapell and Windemere, to accomplish by appropriate procedures and with the appropriate court(s) , the vacation, elimination or modification of the Judgment and Writ of Mandate and/or dismissal of this action, including the dismissals of all appeals and cross appeals, in order that the 1992 Approvals and supporting EIR remain in effect. If all Petitioners do not reach settlement with the County, Windemere and Shapell, Pleasanton will refrain from dismissing its appeal until the parties to this settlement have had an adequate opportunity to achieve the purposes of this paragraph, after which time, if there is no court action which vacates or eliminates the Judgment and Writ as to all parties, the parties will dismiss their appeal and cross-appeal as to these parties. Pleasanton shall then file with the trial court a statement that this settlement agreement satisfies the writ as to Pleasanton, and therefore Pleasanton dismisses its action with prejudice. 4. Annexation of Prosect to San Ramon Pleasanton shall not challenge the Project's annexation to the City of San Ramon or the 1992 Approvals in connection with the Project's annexation to the City of San Ramon. 4 5. Filing Subsequent Legal Challenges (a) Pleasanton shall not file any action, or aid in the prosecution of any action, based upon claims or causes of action of any nature arising out of the approval of the Shapell Development Agreement, the Windemere Development Agreement, 2992- RZ and 2993-RZ, the PDP, or the Conditions of Approval to the extent such are in substantial conformance with the 1992 Approvals, as modified to reflect the Country Club at Gale Ranch approvals, and with the Danville Settlement Agreement, this Settlement Agreement, and any other Settlement Agreements entered into for the Lawsuit. Contra Costa Superior Court shall retain jurisdiction over this action for the purpose of enforcing this provision, pursuant to Code of Civil Procedure § 664 . 6, by way of motion by any party. (b) other than the approval of the Shapell Development Agreement, the Windemere Development Agreement, 2992-RZ and 2993- RZ, the PDP and the Conditions of Approval, if the County (1) uses the EIR (or portions thereof) to modify the Project or to approve a rezoning, development agreement or tentative map, (2) modifies the Project (through a general plan amendment or any other legislative act) or (3) approves a rezoning, a development agreement or tentative map, Pleasanton retains the right to file legal action challenging any such uses, modification or approval to the extent that such use, modification or approval is not based upon or in substantial conformance with the 1992 Approvals, as modified by the Country Club at Gale Ranch approvals, or with the Danville Settlement Agreement, this Settlement Agreement or any other Settlement Agreement entered into for this Lawsuit. However, any such lawsuit shall operate to relieve Shapell and Windemere of their obligations under paragraph 1 of this Settlement Agreement. The exercise by Pleasanton of its rights to make comments on any such modifications or approvals during the legislative or administrative process shall not relieve Shapell and Windemere of their obligations under paragraph 1 of this Settlement Agreement. (c) Prior to the filing of any action as provided in paragraph 5 (b) , the parties will first attempt to resolve any dispute through informal discussions. Any party may convene such discussions though written notice delivered by confirmed facsimile transmission or overnight delivery to the other parties, providing at least ten days' notice, and setting a date, time and place for such discussions. The convening party shall reasonably accommodate the parties' schedules in selecting and/or altering the date and time of the discussions. This dispute resolution process shall be undertaken in good faith and shall be invoked prior to resort to filing an action; provided, however, that by agreeing to this process, no party to this Agreement loses or waives its right to sue under any applicable statute of limitations or loses or waives its right to assert the operation 5 of any applicable statute of limitations as an affirmative defense. In the course of the discussions, the parties may, but are not required to agree to the tolling of any statute of limitations in order to continue or complete discussions prior to the filing of any court action. (d) If the environmental group petitioners enter into a settlement agreement with the County, Windemere and Shapell, and that settlement agreement does not have a similar provision, i.e. , that mitigation or "good will" payments which are conditioned upon future approvals shall cease if the environmental group petitioners file suit, then the second sentence of paragraph 5 (b) ["However, . . .Agreement. " ) shall be rendered null and void as to Pleasanton. (e) If Pleasanton files a legal action to enforce the provisions -of paragraph 2 (c) and/or 2 (f) , such legal action shall not operate to relieve Shapell and Windemere of their obligations under paragraph 1 of this Settlement Agreement. 6. Effect of Development Agreements on Settlement Agreements (a) Nothing provided in the Windemere or Shapell Development Agreements is intended to or does abrogate or limit the enforceability or effectiveness of this Settlement Agreement, the Danville Settlement Agreement or any other Settlement Agreement arising out of the Lawsuit. If there is conflict between the Windemere or Shapell Development Agreement, if such are approved, and this Settlement Agreement, the Danville Settlement Agreement or any other Settlement Agreement arising out of the Lawsuit, the terms of such Settlement Agreement shall prevail. (b) The substance of paragraph 6 (a) above shall be added to any development agreement into which County, Windemere and Shapell shall enter. Prior to the presentation of such agreement to the County Board of Supervisors, 'County shall provide the agreement to Pleasanton for its review that the agreement has within it the substance of paragraph 6 (a) . County, Windemere and Shapell shall make every reasonable effort to incorporate Pleasanton's comments on the language of that provision into such agreement. 7. Waiver of Rights Each party expressly waives any rights or benefits available to it under the provisions of Section 1542 of the California Civil Code, which provides as follows: "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 6 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 the Lawsuit. 8 . Costs, Expenses and Attorney's Fees Each party shall bear its own costs and expenses, including attorney's fees, arising out of the Lawsuit. 9. Execution of Agreement Each party represents that this Agreement has been explained to it by its counsel and that this Agreement is executed voluntarily, with full knowledge of its significance and contents And with full authority. 10. Negotiations Inadmissible Neither the negotiation of this Agreement, nor any action taken to carry out this Agreement (i) is or may be construed or used as an admission or concession by or against any party to this Agreement of any fault, wrongdoing or liability whatsoever, or (ii) may be offered or received in evidence in any action or proceeding against any party in or before any court, administrative agency or tribunal for any purpose; provided, however, that this Agreement may be filed in the Lawsuit as evidence of this settlement. Notwithstanding the prior sentence, all negotiations, discussions and actions shall be admissible as necessary to effectuate, enforce or defend this .Agreement. 11. Agreement to be Binding on Successors This Agreement shall be binding upon, and inure to the benefits of, the parties to this Agreement and their respective successors and assigns. This paragraph is specifically intended to apply to that part of paragraph 1 concerning the collection of the $150/unit by a city annexing area currently within the unincorporated area of the County. 12 . Entire Agreement This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior understandings or agreements between the parties, whether 7 i oral or written. This Agreement may not be amended or modified unless made in writing and signed by each of the parties. CITY OF PLEASANTON Attest:. By: cq0AC:rerka City Manager Approved as/to form: �k"�,(/l City Attorney COUNTY OF CONT COSTA r Attest: By� DVAuty Clerk Approved as to form: -J,iVdA,6 ,da, County Counsel WINDEMERE RANCH PROPERTIES App s �o By: SHAPEL DUSTS, JNQ�. A roved as to form: By: a r (SETTLE.AGI)6/95 8