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HomeMy WebLinkAboutReso 106-87 EneaSettleAgmt RESOLUTION NO.I06- 87 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A RELEASE AND SETTLEMENT AGREEMENT AND PUBLIC DEDICATION AGREEMENT WITH JOHN AND SAL ENEA WHEREAS, on June 22,-1987, the City Council adopted Resolution No. 41-87, Approving and Establishing Findings and General Provisions for a Planned Development Rezoning concerning Planned Development Application PA87-018;' and WHEREAS, John Enea and Sal Enea have, on November 24, 1987, filed Action No. H129689-3 in Alameda County Superior Court, challenging the validity of a certain condition imposed by the City of Dublin for approval of Planned Development Application PA87-018; and WHEREAS, in order to compromise and settle said lawsuit, the City believes it is in its best interest to enter into the attached Release and Settlement Agreement and Public Dedication Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the attached Release and Settlement Agreement and Public Dedication Agreement, and further authorizes the Mayor and City Manager to execute said Agreements. PASSED, APPROVED AND ADOPTED this 14th day of December, 1987. AYES: Councilmembers Hegarty, Moffatt, Snyder, Vonheeder and Mayor Jeffery NOES: None ABSENT: None RELEASE AND S~-TTLEMENT AGREEMENT THIS RELEASE AND SETTLEMENT AGREEMENT is entered into on December 14 , 1987, by and between JOHN ENEA and SAL ENEA (hereinafter "Plaintiffs") and the CITY OF DUBLIN, a general law city (hereinafter "Defendant"). R E C I T A L S: WHEREAS, on June 22, 1987, by Resolution No. 41-87, the City Council of the City of Dublin approved the Enea Plaza Planned Development Rezoning Application (PA 87-018) subject to a condition requiring Plaintiffs to dedicate and fully improve a roadway through the southern portion of Assessor's Parcel No. 941-1500-040; and WHEREAS, on November 24, 1987, Plaintiffs filed Alameda County Superior Court action number H-129689-3 entitled John Enea and Sal Enea v. City of Dublin (hereinafter "the action"), in which, inter alia, Plaintiffs contend that the imposition of the dedication and improvement condition is in violation of the Federal and California Constitutions; and WHEREAS, the Plaintiffs and Defendant desire t6 resolve their differences in the action; NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Defendant shall amend Resolution No. 41-87 to delete the condition that Plaintiffs must fully improve the roadway to be dedicated by them across the southerly portion of APN 941-1500-040. A copy of the proposed Resolution Amending Resolution 41-87 is attached hereto as Exhibit "A". 2. Defendant shall permit Plaintiffs to pave, at their sole cost and expense, the southerly portion of APN 941-1500-040 within the proposed street right-of-way and to use the paved portion for private parking purposes. The paving plan, including design and layout, landscaping and lighting, shall be at the same level of quality as the development approved for the northern portion of the parcel and shall be subject to City review and approval. At such time as Defendants accept Plaintiffs' irrevocable offer to dedicate a public roadway across the southerly portion of APN 941-1500-040, Plaintiffs shall cease to use said paved portion for parking purposes and Plaintiffs shall remove, at their sole cost and expense, all paving, lighting and landscaping placed on that portion of APN 941-1500-040 to be dedicated. Plaintiffs shall hold the Defendant, its officials, officers, employees and agents harmless from and against any and all loss, liability, expense, claim, costs, suits and damages of every kind, nature and description directly or indirectly arising from the paving and improvement of said portion for private parking purposes{ the use of said portion for private parking purposes, and the removal of said paving and improvements at the time of dedication. 3. Defendant will not exclude the proposed road area in determining the maximum floor area ratio for APN 941-1500-040 through a Planned Development rezoning process, unless the offer of dedication has previously been accepted. -2- 4. Plaintiffs shall forthwith execute the City of Dublin Public Dedication Agreement, a copy of which is attached hereto as Exhibit "B". 5. Defendant shall by noon on December 4, 1987, perform any and all inspections necessary to ascertain Plaintiffs' compliance with the Building Code and all applicable conditions of approval of the City of Dublin and to enable Plaintiffs to immediately occupy and use the improvements constructed on the northerly portion of APN 941-1500-040 provided, however, that said inspections reveal compliance with said Building Code and conditions of approval. Defendant shall, to the extent consistent with its custom and practice, permit Plaintiffs to provide a security deposit to secure the completion of those items which are not safety-related. Nothing contained herein shall be construed as a waiver by Defendant of compliance Plaintiffs with the applicable provisions of said Building Code. 6. Plaintiffs shall dismiss the Complaint filed in said action insofar as it pertains to the Defendant. 7. Plaintiffs hereby release and discharge said Defendant, of and from each and every claim, demand, action, cause of action, damage, cost, expense, attorneys' fees, obligation, and liability of whatever kind or nature, in law or equity, arising or to arise in favor of the undersigned, whether known or unknown, including, but not limited to, claims for damages to property, loss of income or business, or special damages of any character, by reason of or growing out of said Defendant's adoption of Resolution No. 41-87 on June 22, 1987. -3- 8. As further material consideration for agreeing to this settlement, it is expressly understood and agreed that: (a) All claims, past, present or future, against the Defendant are disputed and this settlement shall not, and may never be, treated at any time or in any manner whatsoever, by anyone, as an admission by, or against the entity released herein, of any liability or obligation relating to the herein described matters and events, or the truth of any of the allegation of the Complaint in said action. (b) This settlement is considered by the undersigned to be fair, equitable and made in good faith to all parties and/or persons concerned, and is entered into freely and voluntarily with and upon the advice of the attorneys retained to represent the undersigned. (c) This release is expressly intended to cover and include all claims, several or otherwise, past, present or future, known or unknown, which can or may ever be asserted by Plaintiffs' heirs, or otherwise, as the result of Defendant's adoption of Resolution No. 41-87 on June 22, 1987. (d) The undersigned understand and agree that this Release and Settlement Agreement covers and includes all claims of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claims or rights pursuant to -4- Section 1542 of the Civil Code of the State of California are hereby expressly waived as to Defendant's adoption of Resolution No. 41-87 on June 22, 1987. The undersigned understand that said Section 1542 provides: "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." (e) This release shall bind and be binding upon the heirs, personal representatives or executors, administrators, and assigns of the undersigned, and shall inure to the benefit of the agents, employees, servants and successors of the undersigned. (f) The undersigned Defendant represents and. warrants that Meyers, Nave, Riback and West are the attorneys employed to represent the undersigned Defendant with respect to this Agreement and all matters covered herein, that the undersigned Defendant has been fully advised by said attorneys with respect to the undersigneds' rights and with respect to the execution of this Agreement and to all matters which are subject to this Agreement. (g) The terms of this release are contractual and not a mere recital. It is further understood and agreed that no promises, representations, inducements, or warranties have been made or extended by any part -5- hereto other than those which are expressly set forth in this release and this release contains the entire agreement between the parties relating to the rights and obligations therein. This Agreement shall be construed and enforced pursuant to the laws of the State of California. 10. This Agreement shall not be construed as limiting the legislative authority of the City of Dublin in a manner contrary to law. IN WITNESS WHEREOF, the undersigned have executed this Release and Settlement Agreement on the dates indicated: APPROVED BY THE CITY COUNCIL OF THE CITY OF DUBLIN BY ACTION TAKEN ON December 14 , 1987. APPROVED AS TO FORM. '~.. ( ~' ~,,~ ., ,, , MICHAEL R. NAVE, City Attorney S~ EN~ -6- CITY OF DUBLIN PUBLIC DEDICATION AGREBNENT THIS AGREENENT is entered into on December 14 , 1987, by and between the CITY OF DUBLIN, a municipal corporation, hereinafter referred to as "City", and ENEA PLAZA, hereinafter referred to as "Owner". In consideration of the granting of certain entitlement of use described as follows: Rezoning Assessor's Parcel Number 941-1500-038-1 and a portion of Assessor's Parcel Number 941-1500-040 from PD (1464th Zoning Unit) to PD, Planned Development District, as more particularly described in Ordinance No. 35-87, and the ultimate acceptance by the City of the property described in Exhibit A herein. It is mutually agreed as follows: 1. Time of Dedication and Completion. Owner shall submit an irrevocable offer of dedication to the City of the property described in Exhibit A attached hereto and incorporated herein by reference. City agrees to accept such offer of dedication in accordance with the following schedule: At such time as the roadway between Amador Plaza Road and Golden Gate Driveis to be improved, but in no event before the remainder of the proposed roadway is to be improved. As used herein, the word "improved" means that City is in possession of the right-of-wayl the funding for construction of the roadway to be improved has been obtained~and the roadway construction project is within one (1) month of going to bid. 2. A copy of this Agreement shall be recorded by City with the County Recorder. 3. The plan line for the new street connecting Amador Plaza Road with Golden Gate Drive shall be in substantially the same location as depicted in Exhibit A, Owner understands and agrees that the right-of-way may be moved not more than ten (10) feet in any direction without Owner's approval. In such event Exhibit A shall be deemed to be amended to reflect the area within the adopted plan line which is within APN 941-1500-040. 4. The City shall by resolution initiate the planned development rezoning process for a redefinition of the planned development to provide that the uses permitted in the southern portion of APN 941-1500-040 shall be identical to those uses permitted pursuant to City Council Resolution Number 41-87 and planned development application PA 87-018. Owner understands' and agrees that prior to development, Owner shall comply with City's Site Development Review procedure. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year hereinabove written. OWNER: ENEA P C~T~= -~-