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HomeMy WebLinkAboutCity Council Resolution 2038 RESOLUTION NO. 2038 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA AUTHORIZING AND APPROVING THE EXECUTION, DELIVERY AND IMPLEMENTATION OF THAT CERTAIN STIPULATION FOR SETTLEMENT RELATING TO PARNAS CORPORATION v. CITY OF SARATOGA, ET AL., SANTA CLARA COUNTY SUPERIOR COURT NO. 485489 AND RELATED CROSS COMPLAINT; PARNAS CORPORATION v. CITY OF SARATOGA, ET AL., UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, NO. C-81-4041 AND RELATED CROSS COMPLAINT; AND PARNAS CORPORATION v. CITY OF SARATOGA, ET AL., SANTA CLARA COUNTY SUPERIOR COURT NO. 463183 A. Parnas Corporation, a California corporation, (Parhas) is petitioner and the City of Saratoga, a municipal corporation, John Mallory, Cheriel Jensen, Martha Clevenger, Linda Callon and Dale Watson (City) are r~spondents in that certain action entitled Parnas Corporation, a California corporation v. City of Saratoga, a municipal corporation, et al., No. 463183, pending in the Superior Court of California, County of Santa Clara {State Action No. 1). B. In State Action No. 1, Parnas filed a petition for writ of mandate seeking among other things an order that Parnas be excepted from the operation of the initiative ordinance and that Tracts 6665 and 5928 be permitted to be constructed in accordance with the tentative maps approved for said tracts and the final map approved for Tract 5928. C. Parhas Corporation, a California corporation, (Parhas) is plaintiff and the City of Saratoga, a municipal corporation, John Mallory, Cheriel Jensen, Martha Clevenger, Linda Callon and Dale Watson are defendents in that certain action entitled Parnas Corporation, a California corporation, v. City of Saratoga, a municipal corporation, et al., No. 485489, pending in the Superior Court of California, County of Santa Clara (State Action No. 2). D. In State Action No. 2, Parnas filed a Complaint for Declaratory Relief, Recission, Restitution and Damages requesting the court to declare the respective rights and duties -1- of the parties under the initiative ordinance; that said ordinance is unconstitutional, invalid and void on its face, or as it applies to Parnas if the ordinance is found to be valid, that it does not apply to Parnas' activities described in said complaint; for a determination by the court that the contract between Parnas and the City has been rescinded and requesting an order of restitution of the consideration paid by Parnas; and requesting monetary damages. E. The City and Councilmembers named as defendants in State Action No. 2 filed a cross-complaint against Parnas Corporation for declaratory relief seeking a declaration from the court that the initiative ordinance, Measure A, is constitutional and valid both under federal and state laws and that the actions of the City Council in enforcing and implementing Measure A, especially in relation to Resolution No. 965 and Resolution No. 956.1, are legal and valid both under federal and state laws. F. Parnas Corporation, a California corporation, (Parnas) is plaintiff and the City of Saratoga, a municipal corporation, John Mallory, Cheriel Jensen, Martha Clevenger, Linda Callon, and Dale Watson (City) are defendants in that certain action entitled Parnas Corporation, a California corporation, v. City of Saratoga, a municipal corporation, et al., No. C-81-4041, pending in the United States District Court, Northern District of California (Federal Action No. 1). G. In Federal Action No. 1, Parnas filed a Complaint for Violation of Civil Rights seeking a declaration from the court that Measure A is invalid, a permanent injunction requiring the City to process and issue all necessary permits for the development and improvement of Tracts 6665 and 5928, including the construction of houses, and prohibiting the City from enforcing Measure A, or in the alternative, a permanent injunction requiring the City to process and issue all necessary permits for the development and improvement of Tracts 6665 and 5928, including the construction of houses upon all 34 lots in Tract 6665 and all 7 lots in Tract 5928, and also requesting monetary damages. -2- H. The City and Councilmembers named as defendants in F~deral Action No. 1 filed a cross-complaint against Parnas Corporation for declaratory relief seeking a declaration that Measure A is constitutional and valid, both under federal and state laws, and that the actions of the City Council in enforcing and implementing Measure A, especially in relation to Resolution No. 965 and Resolution No. 956.1 are legal and valid both under federal and state laws. I. The City and the City Councilmembers appeared in all actions referred to hereinabove and each and all denied and continued to deny each and every one of Parnas' allegations as to all issues and in all respects. J. Parnas, the City and the City Council acknowledge that all assertionS, ~llegations or claims which have been or could have been made by Parnasin the above-mentioned actions are disputed by the City and all other defendants as to validity and any other aspect. Without admitting the validity of any of the contentions which have, or might have been made by any of them, Parnas, the City and City Council desire and intend fully and finally to compromise and settle all such contentions and other matters in controversy among them. NOW, THEREFORE, the City Council of the City of Saratoga ("Council") RESOLVES as follows: 1. The City Council, on behalf of itself and the City of Saratoga, hereby alfchDrizes and approves the execution, delivery and implementation by City Manager of a Stipulation for Settlement on the terms and eonditions as set forth in said Stipulation for Settlement attached hereto marked Exhibit "A" and incorporated herein by reference and any and all other documents necessary to consummate such stipulation for settlement. Recitals A through J hereinabove are incorporated herein by reference. 2. The City Council further hereby authorizes and directs that said Stipulation for Settlement be recorded with -3- the office of the Recorder of Santa Clara County. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a regular meeting held on the 2nd day of March , 1983, by the following vote: AYES: Counci~rs Fanelli, Moyles and Mayor Callon NOES: Councilmembers Clevenger and Mallory ABSENT: None ABSTAIN:None Mayor ATTEST: APPROVED AS TO FORM: City Attorney APPROVED: ' "~t~ M~nager~.I .... ~ATTN: City Clerk . ~REQ U ST OF OFF~=O!/~L ~ECORDS STIPULATION FOR SETTLEMENT GEC}~{(~E b,, MANN RE~;ST~A~ ~E00RDER H3 nc 166 ~his S~ipula~ion fo~ Se~1emen~ ("Agreement") ~s made a~ Saratoga, California, ~his ~'j' day of , 1983, between Pa~nas Co~po~a~ion~ a California corporation ("Pashas") on ~he one hand and ~he C~y of Sa~6~ogar a ~un~c~pa1 corporation ("City"), and ~he City Council of ~he City of Saratoga ("C~y Council") on ~he o~he~ hand, ~i~h ~eference ~o ~he following ~eci~als: A. Pashas ~s a land developer p~esen~ly developing ~o sub- d~v~sion ~=ac~s w~hin ~he City of Saratoga, ~o ~ T~ac~ ~6665 and T~ac~ ~5928; and a =ed~vis~on SDR ~426. B. ~ac~ ~6665 consists o~ bh~=~y-fou~ (34) d~v~ded lo~s and sa~d ~rac~ received Tentative Hap approval on April 25, 1979; C. ~rac~ ~5928 consists of e~gh~ (8) lo~s, seven (?) of ~h~ch a~e being developed by Pa=nas. Sa~d ~ac~ has ~eceived ~nal Hap approval and saLd ~inaZ Hap ~as ~eco~ded ~n ~he Reco~de~'s O~f~ce o~ Santa Clara County on Hay 30, 1979; D. SDR 1426 consists of four (4) subdivided lo~s and desig- nated Pa=cels Ar Br C~ and D. Parcels A~ B~ and C a=e a ~esub- division of lo~s 2~ 3~ and 4 of T~ac~ f5928. Parcel D ~s lo~ ~5 on ~he app=oved Tentative ~ap for ~Eac~ ~6665. Sa~d SDR 1426 ~eceived · en~a~ive Hap app=oval on Sep~embe= 6, 1979. B. A~ a special elec~on o~dered consolidated ~i~h ~he 1 general municipal election and held on April 8, 1980, the voters of the City of Saratoga adopted an ordinance entitled "An Initiative Ordinance Directing Preparation of a Specific Plan for Preservation of the Rural Character of the Northwest Hillsides of the City of Saratoga and Imposing a Moratorium on Development Pending Completion of Said Plan." The Initiative Ordinance is also commonly referred to as "Measure A." It went into effect on April 25, 1980; F. Section 7 of the Initiative Ordinance provides that: "SECTION 7. INTERIM RESTRICTIONS Pending final completion of the requirements of Section 3, no zoning changes, land divisions, subdivisions, building, or grading permits for construction of a new residence, or other land development approvals of any kind shall be issued in the subject area, nor any applications accepted therefor; provided that upon a showing of extreme hardship and in agreement with the provisions of this initiative, exceptions may be granted after two noticed public hearings by a 4/5ths vote of the City Council." G. To implement Section 7, the City Council, on June 4, 1980 adopted Resolution No. 956.1, a "Resolution of the City Council of the City of Saratoga Establishing Criteria for Evaluating Hardship Exemption Applications Under Section 7, Interim Restrictions of Measure A;" H. On April 22, 1980, Parnas Corporation filed an application for an exception under Section 7 of the Initiative Ordinance for property consisting of Tract #5928 and Tract #6665; I. Noticed public hearings were held on June 4, 1980, July 2, 1980, July 8, 1980 and July 22, 1980 at each of which the applicant 2 H393 e .ce 168 was heard and presented evidence. In addition, all other persons wishing to be heard were heard; J. On August 21, 1980, upon the basis of the records, files, and proceedings relating to the application of Parnas for an exception on Section 7 of the Initiative Ordinance, the City Council of the City of Saratoga made the determination that the application for an exception under Section 7 of the Initiative Ordinance for both Tracts #6665 and #5928 should be granted, provided, among other things, that the total number of lots in Tract ~5928 be reduced to four (4) and the total number of lots in Tract #6665 be reduced to twenty-nine (29) in order to conform with the density provisions of Section 4 (a) of the Initiative Ordinance; K. Said determination was embodied in Resolution No. 965, passed by a 4/5ths vote of the City Council on August 21, 1980; L. On October 7, 1981, Parhas filed a Complaint for Declara- tory Relief, Rescission, Restitution and Damages in the Superior Court of the County of Santa Clara entitled Parnas Corporation, a California corporation, vs. City of Saratoga, a Municipal corpora- tion, John Mallory, Cheriel Jensen, Martha Clevenger, Linda Callon, Dale Watson, and DOES 1 through 30, inclusive, Case No. 485489. On or about December 14, 1981 defendants filed their Answer to the Complaint and filed a Cross-Complaint for Declaratory Relief entitled City of Saratoga, a Municipal corporation; John Mallory; Cheriel Jensen; Martha Clevenger; Linda Callon; Dale Watson, Cross- Complainants, vs. Parnas Corporation, a California corporation, and DOES 1 through 20, inclusive. 3 Haga M. on October 8, 1981, Parnas filed a Complaint for Violation of Civil Rights in the United States District Court, Northern District of California, entitled Parnas Corporation, a California corporation, vs. City of Saratoga, a Municipal corporation, John Mallory, Cheriel Jensen, Martha Clevenger, Linda Callon, and Dale Watson, Case No. C814041. On or about December 10, 1981 defendants filed their Answer to the Complaint and filed a Cross-complaint entitled City of Saratoga, a Municipal Corporation; John Mallory; Cheriel Jensen; Martha Clevenger; Linda Callon; Dale Watson, Cross- Complainants, vs. Parhas Corporation, a California corporation and DOES 1 through 20, inclusive. N. On November 18, 1980, Parnas filed a Petition for Writ of Mandate in the Superior Court of the County of Santa Clara entitled Parhas Corporation, a California coporation, vs. City of Saratoga, a Municipal corporation, John Mallory, Cheriel Jensen, Martha Cleven- ger, Linda Callon, Dale Watson and DOES 1 through 20, inclusive, Case No. 463183. On December 14, 1981, defendants filed their Answer to the Petition for Writ of Mandate. O. The City and the City Council Members appeared in all actions referred to hereinabove and each and all denied and continued to deny each and every one of Parnas' allegations as to all issues and in all respects. P. Without admitting the validity of any of the contentions which have, or might have been made by any of them, the parties to this Agreement desire and intend fully and finally to compromise and settle all such contentions and other matters in controversy among 4 H393PzcEl?0 them. Q. This Agreement contains the entire Agreement and under- standin9 concerning the subject matter between the parties to this Agreement and supersedes and replaces all prior negotiations and proposed or executed agreements, written and oral. Each of the parties hereto acknowledges that neither the other party, nor the agents or attorneys of the other party, has made any promise, representation, or warranty whatsoever, express or implied, not contained herein to induce the execution of this Agreement, and acknowledges that this Agreement has not been executed in reliance upon any promise, representation, or warranty not contained herein. R. Zn addition to the settlement of all matters in contro- versy with respect to the actions set forth hereinabove, the parties hereto desire to settle all other claims, demands and/or causes of action which may exist between them whether known, unknown, or sus- pected, except as they may arise from this Agreement. S, The parties to this Agreement hereby acknowledge that they have been represented by independent counsel of their own choice throughout all negotiations which preceded the execution of this Agreement and that they have executed this Agreement ~ith the consent of~ and upon the advice of, their own counsel. NOW, THEREFORE, it is mutually agreed as follows: 1. In addition to those hereinabove set forth, and any others hereinafter contained, the following definitions shall also apply throughout this Agreement: A. "Building Sites": Building sites for Subdivision Tract Maps 666S and H393P cEl?l B. "The 37 Houses": The thirty-seven (37) detached single family dwellings to be built upon only thirty-seven (37) lots and upon only the building sites related to Tract Map #6665 and #5928 and SDR 1426 as per Paragraph #3 below. 2. Upon the effective date of this Agreement as defined below ("effective date"), the parties to this Agreement will not take any action in pursuance of any lawsuit mentioned hereinabove or initiate any new lawsuit (except or permitted in Section 7 hereinafter) within the recitals here in for as long as necessary to allow Parnas to obtain grading and building permits to build only the thirty-seven (37) houses as provided in Paragraph ~3. 3. The City shall process applications for and grant building and grading permits and issue all other necessary approvals and/or permits to building only the thirty-seven (37) houses, conditioned upon prior design review approval of each of said lots and houses under the City Zoning Ordinance, and further conditioned upon Parnas first complying with the applicable provisions of Ordinances of the City othe~ than Measure A, or those Ordinances adopted pursuant to or in furtherance of Measure A. Conditioned upon full performance of this Agreement by Parnas, Parhas' right to build the thirty-seven (37) houses shall be irrevocable. The lots on Subdivision Tract Maps #6665, #5928, and SDR 1426 on which the thirty-seven (37) houses shall be built are as follows: A. Subdivision Tract Map #6665: 1. Lots 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 31, 6 32, 33. 2. Lots 2 and 3, 16 and 17, 27 and 28 shall be paired and only one (1) house shall be built on each of the paired lots. B. Subdivision Tract Map #5928 and SDR 1426: 1. Lots 1, 6, 7, and 8 of Tract #5928 and lots C and D of SDR 1426. 2. Lots A and B of SDR 1426 shall be paired, and only one (1) house shall be built on the paired lot. The purpose of such restriction is to limit all development of any kind within said subdivisions to the thirty-seven (37) houses and to ensure that no development of any kind whatever shall occur at any time in the future on the remaining four (4) lots as enumerated in Paragraph C below. C. Parnas shall immediately initiate procedure by the filing of maps with the city and take all other appropriate action to revert the paired lots referenced above to acreage pursuant to Government Code Section #66499.11 et seq. and the City shall accept and approve the reversion of the paired lots to acerage. 4. From and after the effective date of this Agreement, Parnas shall submit to the City applications for design review approval and grading and building permits for each of the thirty-seven (37) houses referred to in Paragraph #3 above. Such applications shall be processed by the City in the ordinary course of the City's processing of such applications. 5. With regard to each of the paired lots referenced above, Parnas may elect to utilize one (1), and only one, of the existing 7 previously-approve~ building sites for either lot, or Parnas may apply for a modification of building site approval to relocate the building site on the paired lot. ~or purposes of development of any paired lot, Parnas will comply ~ith development standards applicable to NHD Zone except as to lot size. All other non-paired lots referenced above shall comply with development standards applicable to HCRD Zone. 6. Immediately upon the effective date of the Agreement, Parnas will dismiss all of the actions set forth in Paragraphs L, M, and N hereinabove without prejudice as to all parties to this Agreement. The City of Saratoga, a Municipal corporation, will dismiss all of its actions set forth in Paragraphs L, M, and N hereinabove without prejudice as to all parties to this Agreement. None of such dismissals shall operate as a retraxit. Upon full performance of this Agreement by all parties, or upon the fifth (5th) anniversary date of this Agreement, whichever occurs first, said dismissals shall be deemed dismissals with prejudice on the merits and the parties hereto shall execute, mutually exchange and file such dismissals with prejudice with the court in each of the actions mentioned hereinabove. 7. All parties agree that any and all statutes of limita- tions, including but not limited to Code of Civil Procedure Section #581(a) applicable to the causes of action set forth in each lawsuit mentioned hereinabove including cross-complaints shall be tolled for a period of five (5) years from the effective date of this agreement. Upon any party's failure to perform any provision of this Agreement, the other parties may, after compliance with Paragraph 8 H 393 :1. 7'4 ~11 hereof, file, reinstitute, or refile any appropriate lawsuit and proceed therewith, as well as assert such causes of action and/or rights to relief and/or defenses and/or cross-complaints as may flow from such failure of performance or as may then be available. 8. Each party to the Agreement shall bear his, her, or its own attorneys' fees and costs and Parnas specifically hereby waives any prior award of attorneys' fees. 9. Conditioned upon full performance of the Agreement by all parties: A. The City and the City Council shall release Parnas, its agents and attorneys, from any and all claims, demands, and/or causes of action which may exist between them, whether known, unknown, or suspected in connection with the application of Measure A to Tracts #6665 and #5928 and SDR 1426, and the City and the City Council hereby waive the provisions of Civil Code Section #1542 set forth above. Their release of unknown claims contained in this Paragraph 9A is a separate consideration for the release contained in Paragraph 9B hereof and the City and the City Council would not have agreed to this Paragraph 9A but for the release contained in Paragraph 9B. B. Parnas shall release the City and the City Council, their agents, and attorneys from any and all claims, demands, and/or causes of action which may exist between them, whether known, unknown, or suspected in connection with the application of Measure A to Tracts #6665 and #5928 and SDR 1426, or in connection with any act or omission by the city or any of its agents or representatives in processing any application by Parnas for tentative or final map 9 approval for said tracts or SDR, and Parnas hereby waives the provisions of Civil Code Section ~1542 set forth above. The release of unknown claims contained in this Paragraph 9B is a separate consideration for the release contained in Paragraph 9A hereof and Parnas would not have executed this Agreement or agreed to this Paragraph 9B but for the release contained in Paragraph 9A. 10. All parties to this Agreement shall use their best efforts to carry out all of the terms of this Agreement and shall take all steps reasonably necessary to do so. Further, each party agrees not to unreasonably interfere with the respective benefits granted to the other party under this Agreement. 11. If at any time either the City or Parnas determines on good cause that it will be unable to obtain performance of this Agreement by the other, it shall give thirty (30) days written notice thereof to the attorneys of record for the other party in the lawsuits hereinabove mentioned. Immediately upon the receipt of such notice, the City and Parnas shall, consistent with the provisions of Para- graph 10 above, make every reasonable effort to resolve the matter underlying the notice within thirty (30) days. If such effort is unsuccessful any party may proceed as per Paragraph #7 hereof. 12. This Agreement may be amended by an instrument in writing referred hereto, signed by Parnas and the City, only, which shall, for this purpose, be the Attorney-in-Fact of the City Council. Such amendment must specifically state that it is an amendment to this Agreement. This Agreement may not be amended orally or otherwise than as set forth in this Paragraph ~12. 13. Parnas shall have the right to assign all or any part of 10 its rights or obligations under this Agreement and shall give written notice of intent to assign to the City's City Clerk not less than thirty (30) days prior to any such intent to assign. 14. This Agreement is entered into for the benefit of the parties hereto and shall be for the benefit of, and be binding upon, the parties hereto, their heirs, transferees, successors, and assigns. The parties agree to execute this Agreement in recordable form and the City may record such Agreement at any time after the effective date hereof. Other than the parties hereto and their heirs, successors, and assigns, and the attorneys now of record, no third person shall be entitled, directly or indirectly, to base any claim or have any right arising from or related to this Agreement. 15. If it becomes necessary to enforce any of the terms of this Agreement or to declare rights hereunder, the prevailing party shall be entitled to reasonable attorneys' fees and other costs of liti- gation in addition to any other relief to which he, she, or it may be entitled; provided, however, if an action is filed, reinstituted, or refiled as per Paragraph #7 hereof, the provisions of this Paragraph #15 shall not apply to the causes of action, claims for relief, and/or defenses so filed, reinstituted or refiled. t6. The terms of this Agreement shall not be effective until signed by all parties, through their authorized representatives. The effective date of this Agreement shall be the date upon which it is last signed by all parties through their authorized representa- tives. It may be signed in one or more counterparts and, when all parties have signed the original or a counterpart, such counterparts H393~lTG together shall constitute one original document. When so signed, this Agreement shall be filed with the respective court as designated in Paragraphs L, M, and N above as a Stipulation for Settlement, and the Court shall order that the parties carry out its provisions, but the effectiveness of this Agreement does not depend upon Court approval or any such Court Order or Orders. DATED: .n~ L Z~".,. ~ PARNAS CORPORATION, a California corporation, by its president: BY: potation: BY: ~//~~~ ...... DATED: /~-~ CITY COUNCIL of the CITY OF SARATOGA: B Y: /'~~./~ 12 STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA ) D. Lard, a Notary Public for the State of California, per- sonally appeared , proved to me on the basis of satisfactory evidence, to be the person ... whose name__ /~ subscribed to the within instrument, and acknowledged to me that h2~ executed the same 0 IN WITNESS WHEREOF I have hereunto set my hand and affixed my Official Seal, at my office in the County of Santa Clara, the day and year in this certificate first above written. tfnKilialellllaueaaanmlalutnllmlem~ N O t a r y My commission expires on June 4, 1985. ~..o~ I ss. hundred and ..~...~ ................before me ,.~ ................................ a Public, S te of Col' ornia, duly commissioned and sworn, personally appeared, ..~, .: ........~ .........~ ...................................................... known to me to be the person ..... whose name instrument and acknowledged to me that ..... he .....executed the same, \ .... ~'~/~~ o ~iat ~ l'you''sEes WhEreOF ~ h,~ hereu to ~t ~,~ h~nd ~d af~ed my ff a ~n the ..........................County of ~!..~he day and year~ in this certificate ve wrttt . This document is only s general form which may be proper for use ~n simple ' anO in no way acts, or ~s intended zo act, as a substitute for the advice of an atl;orney, Notary PubZic, S~ate o validity of any provision Or the suitability of these forms wn any s,oecific transacti-~n. My commission expires ' Cowdcry's Form No, 32-Acknowledgement-Gcneral (C. C, Scc. 11903) .........................................................