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HomeMy WebLinkAboutCity Council Resolution 2152 ~LUTION NO. 2152 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA APPROVING STIPULATION FOR SEI'PLEMENT RELATING TO DeMARTINI vs. CITY OF SARATOGA, ET AL., SANTA CLARA COUNTY SUPEKIOR COURT, CASE NO. 452482~ AND VOGEL, ET AL, vs. CITY OF SARATOGA~ ET AL, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CAL!~ORRIA~ CASE NO. C-82-2887 SAW, AND AUTHORIZING THE EXECUTION AND IMPLEMENTATION THEREOF A. Allen F. DeMartini ("DeMartinr') is named as plaintiff and the City of Saratoga ("City"), and each member of the City Council in office as of June 18, 1980, are named as defendants in that certain action entitled DeMartini vs. City of Sarat~a~ et al., commenced in the Santa Clara County Superior Court, Case No. 452482 ("the State Action"). B. In the State Action, DeMartini requests the court to declare Measure A unconstitutional and to issue an injunction restraining City from in any way enforcing the provisions of Measure A as applied to DeMartini's property known as Tract 6701 ("the Subject Property"), and requiring City to process and issue necessary permits for the development and improvement of the Subject Property, including the construction of houses upon the 17 lots shown on the tentative map for the Subject Property as approved by City on or about January 10,1979. C. City and the City Council appeared in the State Action and denied, and continue to deny, each and every allegation of DeMartini as to all issues and in all respects. D. A summary judgment in favor of DeMartini was entered in the State Action, from which an appeal was taken by City to the Court of Appeal for the First Appellate District. The appeal is still pending before said court as Case No. A 0]7693. E. On June 7, 1982, Bernard J. Vogel ("Vogel") and Orville Telstad ("Telstad") as successors in interest to DeMartini, commenced an action in the United States District Court, Northern District of California, against City and each member of the City Council in office as of such date, entitled Vogel, et al., vs. City of Saratoga~ et al., Case No. C-82-2887 WAI ("the Federal Action"). F. In the Federal Action Vogel and Telstad request the court to declare Measure A and the Specific Plan adopted thereunder to be unconstitutional and to issue an injunction requiring City to process and issue all necessary permits for development of the Subject Property, including the construction of houses. The Federal Action also asserts violation of plaintiffs' civil rights and seeks actual damages in an unspecified amount for injuries suffered to date of judgment, punitive damages in the amount of $2,000,000.00 and attorneys' fees and costs. G. The Federal Action was conditionally dismissed on April 16, 1984, subject to the execution and implementation of a settlement agreement between the parties. -1- H. All of the right, title and interest of DeMartini in and to the State Action has been assigned and transferred to Vogel, and all of the right, title and interest of DeMartini in and to the Subject Property has been, or will be, transferred and conveyed to Telstad. I. Vogel, Telstad and City acknowledge that all assertions, allegations and claims which have been or could have been made in the State Action and the Federal Action are disputed by City as to all issues and in all respects. Without admitting the validity of any contentions which have, or might have been made by any of them, Vogel, Telstad and City desire and intend fully and finally to compromise and settle all such contentions and other matters in controversy between them. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Saratoga as follows: 1. The City Council hereby approves a stipulation for settlement on the terms and conditions and in the form of the Stipulation for Settlement attached hereto as Exhibit "A" and incorporated herein by reference. Recitals A through I set forth above are incorporated herein by reference. 2. The Mayor and City Clerk are hereby authorized and directed to execute the Stipulation for Settlement, in the form attached hereto as Exhibit "A," for and on behalf of the City of Saratoga, together with any and all other documents necessary to consummate such Stipulation for Settlement, and the City Council further authorizes and directs the performance of all other acts on the part of the City which may be necessary or appropriate for implementation of such Stipulation for Settlement. 3. The City Council further authorizes and directs that the Stipulation for Settlement be filed with the court in the State Action and the Federal Action, but no order thereon shall be required. Passed and adopted at a regular meeting of the City Council of the City of Saratoga on the 6th day of June 1984, by the following vote: AYES: Councilmenbets Callon, Clevenger, Fanelli, Mallory and Mayor Moyles NOES: None ABSENT: None DEPUrZ CITY CLERK -2- STIPULATION FOR SETTLEMENT This Stipulation for Settlement ("Agreement"), by and between BERNARD ;I. VOGEL, JR., JOAN M. VOGEL (~Vogel"), ORVILLE TELSTAD (~Telstad~), VINCENT J. DiGIROLAMO and ELLEN A. DiGIROLAMO ("DiGirolamo") (hereinafter collectively referred to as "Owners") and the CITY OF SARATOGA, a municipal corporation ("City") is made with reference to the following facts: A. Owners are the fee owners of approximately 27 acres of certain real property designated as Tract No. 6701 (the "Subject Property") located within the Northwestern Hillside area of the City of Saratoga ("Northwestern Hillside"). B. Owners filed an application with City for approval of a tentative map for the Subject Property, identified as Application No. SD 1364, and on or about January I0, 1979, City approved a tentative map for the Subject Property providing for 17 lots and, as part of such approval, imposing certain conditions to be satisfied by the applicants prior to reeordation of a final map. C. On April 8, 1980, the citizens of Saratoga passed an initiative ordinance, commonly known as Measure A, which became effective on April 25, 1980, and which pertains to the Northwestern HilLside, including the Subject Property and others. D. Beetion 7 of Measure A states in pertinent part: "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 4/5's vote of the City Council." Section 3 of Measure A also states in pertinent part: "The City of Saratoga shall within one year from the effective date of this ordinance, 'or as soon thereafter as feasible, complete a -1- comprehensive review of all development issues in the subject area and adopt a Specific Plan for the area pursuant to California Government Code Sections 65450-65553, incorporating the standards set forth in Section 4 below, and all policies and regulations required to implement said PLan." E. On June T, lg81, pursuant to and consistent with Measure A and Sections 65450-65553 of the Government Code, City adopted the Northwestern Hillside Specific Plan ('Specific Plan"), and on April 27, 1982, pursuant to and consistent with the Specific Plan, City enacted Ordinance NS-3.47 establishing zoning regulations for the Northwestern Hillside ("NHR Zoning Regulations"), being the area covered by Measure A and the Specific Plan. Measure A, the Specific Plan and Ordinance NS-3.47 reduced the density of development below the number of lots shown on the tentative map for the Subject Property. F. City has contended and still contends that Tract 6701 and SD 1364 are subject to all provisions of Measure A, the Specific Plan and Ordinance NS-3.47, including the density provisions thereof, whereas Owners have contended and still contend they are entitled to subdivide their property into 17 lots, upon compliance with all conditions for final map approval and that they are further entitled to building permits authorizing the construction of a single family residence upon each of such lots. G. On June 18, 1980, ALLEN F. DeMARTINI ("DeMartinr') commenced an action in the Superior Court of the State of California for the County of Santa Clara, entitled DeMartini vs. City of Saratoga, et al., Case No. 452482 ("State Action"). A summary judgment in favor of DeMartini was granted in the State Action, from which an appeal was taken by City to the Court of Appeal for the First Appellate District. The appeal is still pending before said court as Case No. A017693. H-. On June 7, 1982, BERNARD J. VOGEL, JR., and ORVILLE TELSTAD ("Vogelfrelstad") commenced an action in the United States District Court for the Northern District of California, entitled Vogel, et 81., vs. City of Saratoga, et al., Case No. C 82 2887 WAI (SJ) ('~Federal Action"). By stipulation between the parties, such action was conditionally dismissed on April 16, 1984, subject to implementation of the settlement as provided in this Agreement. -2- I. During the pendency of the State Action, DeMartini commenced bankruptcy proceedings under Chapter 7 of the United States Bankruptcy Act, and DiGirolamo commenced bankruptcy proceedings under Chapter 11 of said Act. The Trustee in Bankruptcy for DeMartini has abandoned and released all claims to the Subject Property and both DeMartini and said Trustee have conveyed or will convey to Telstad any and all interest in the Subject Property held by DeMartini or his bankruptcy estate. In addition, the Trustee in Bankruptcy for DeMartini has assigned and transferred to Vogel all of the right, title and interest of DeMartini in and to the State Action. J. The City has denied and continues to deny each and every allegation of DeMartini in the State Action and Vogel/Telstad in the Federal Action as to all issues and in all respects. K. 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 to settle ali such contentions and other matters in controversy among them. L. Civil Code Section 1542 provides: "A general release does not extend to claims whieh 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." M. This Agreement eontains the entire agreement and understanding concerning the subject matter between the parties to this Agreement and supersedes and replaces all prior negotiations and proposed agreements, written and oral. Each of the parties hereto acknowledges that no other party, nor the agents nor attorneys of any 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. N. In addition to the settlement of all matters in controversy with respect to the State Action and the Federal Action set forth above, the parties hereto desire to settle all other claims, demands and causes of action which may exist between them whether known, unknown, or suspected, except as they may arise from this Agreement. -3- O. All of 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 with the consent of, and upon the advice of, their own counsel. NOW, THEREFORE, it is mutually agreed as follows: 1. Recitals A through O are incorporated herein by reference. 2. In consideration of the additional public improvements to be constructed by Owners, as described in Paragraph 5 below, and dismissal by Owners of the State and l=ederal Actions, with prejudice, as to all claims and all defendants, and subject to compliance by Owners with the tentative map conditions set forth in SD 1364, City agrees to grant final map approval for the subdivision of Tract 67{}1 into 17 lots, in accordance with the tentative map as originally approved by City. City further agrees to process applications and issue building and grading permits and other approvals as may be necessary for the construction of a single family dwelling and accessory uses appurtenant thereto upon each of such lots, conditioned upon prior design review approval thereof and compliance by Owners with all applicable provisions of City's zoning and other ordinances, except for the density and setback provisions of the NHR Zoning Regulations and the Specific Plan. All applications filed with City by Owners for design review approval or building permit shall be processed by City in due course on a non-discriminatory basis, and City shall not give preference or priority to any applications subsequently filed by other parties so as to delay. the processing of or rendering of a decision upon the earlier applications submitted by Owners. 3. From and after the effective date of this Agreement, neither City nor Vogel or Vogelfrelstad shall prosecute the State and Federal Actions, nor shall Owners commence any new action concerning the subject matter of the State or Federal Actions and this Agreement. Owners, may, within two (2) years from the date hereof, reactivate the State Action and/or restore the Federal Action in the event City fails to perform any material provision of this Agreement and such actions have not previously been dismissed with prejudice, in accordance with Paragraph 4 hereof. -4- 4. Concurrent with the exeeution of this Agreement, Vogel and City shall execute a Stipulation (~the Stipulation") for unconditional dismissal of the State Action, with prejudice, as to all claims and all defendants, and to vacate and set aside the judgment rendered in such action. The Stipulation shall be held in trust by counsel for City and shall not be filed until the time provided herein. Upon the expiration of one (1) year after the granting by City of final map approval for SD 1364, or upon issuance by City of a building permit for construction of a single family dwelling upon any lot within the Subject Property, whichever shall first occur', counsel for City shall be authorized to file the Stipulation with the Santa Clara County Superior Court and obtain an order thereon dismissing the State Action, with prejudice, and vacating said judgment. City shall thereupon file with the Court of Appeal for the First Appellate District a dismissal of its appeal in the State Action pending before said Court as Case No. A 017693. At the time of dismissal of the State Action, as provided herein, Vogel/Telstad shall file an unconditional dismissal of the Federal Action, with prejudice, as to all claims and all defendants. If, for any reason, Vogel/Telstad fail to do so, the Federal Action shall be deemed to have been dismissed, with prejudice, as to all claims and all defendants, as of the date of filing the Stipulation in the State Action. 5. In addition to any and all other requirements to be satisfied by Owners for final map approval as contained in SD 1364, Owners and their successors hereby agree to construct, at their own expense and at no expense to City, a new 'public road ("New Road") consisting of approximately 600 feet of Pierce Road and related improvements between Vista Regina and Via Regina. All construction on the New Road shall be performed in a good and workmanlike manner, in accordance with plans and specifications prepared by Owners and approved by City prior to issuance of any building, grading or other permits for the New Road. Such plans and specifications shall comply with the requirements for the New Road as set forth in Exhibit "A", attached hereto and made a part hereof, unless otherwise approved by the City Engineer. If Owners have satisfied all other conditions for final map approval except · construction of the New Road, Owners or their successors may enter into a Deferred Improvement Agreement with City providing for the construction and completion of the New Road within a period of one (1) year from the date of such agreement, with performance thereunder being secured by a corporate surety bond, irrevocable letter of credit or other security in form and amount satisfactory to City. The Deferred Improvement Agreement referred to herein shall be executed prior to final map -5- approval. All construction on the New Road shall be guaranteed by Owners or their successors against defects in material or workmanship for a period of one (1) year after the date of completion and acceptance by City. 6.. As a further consideration for City's approval of said final map, Owners hereby agree that in the event City enacts an ordinance for imposition of a Development Impact Fee to be payable at the time building permits are issued for the construction of new dwelling units within any portion or all of the NHR District, each of the lots in Tract 6701 shall be subject to such fee. City hereby agrees that the Development Impact Fee will be charged on a uniform basis with respect to all lots or parcels to which it applies. 7. Owners hereby stipulate that Measure A is a valid and enforceable initiative approved by the citizens of the City of Saratoga and that the Specific Plan and the NHR Zoning Regulations are valid and enforceable. This stipulation shall be of no force or effect in the event of City's breach of this Agreement. 8. Owners and City shall each bear his, her or its own attorney's fees and costs incurred in connection with the prosecution or defense of the State and Federal Actions and the negotiation and preparation of this Stipulation for Settlement. 9. Conditioned upon full performance of this Agreement by all parties: (a) Owners, on behalf of themselves and their respective agents, representatives, attorneys, employees, successors and assigns, do hereby release City, the former and present members of the City Council, their officials, officers, agents, representatives, employees, attorneys and their insurance carriers, from any and all claims, demands and/or causes of action which may exist between them, whether known, unknown, or suspected, and Owners hereby waive the provisions of Civil Code Section 1542 set forth in Recital L above. The release of unknown claims contained in this Paragraph 9(a) is a separate consideration for the release contained in Paragraph 9(b) hereof and Owners would not have executed this Agreement or agreed to this Paragraph 9(a) but for the release contained in Paragraph 9(b). -6- (b) City, on behalf of itself and its officials, officers, agents, representatives, employees, attorneys and insurance carriers, does hereby' release Owners from all claims, demands and/or causes of action which may exist between them, whether known or unknown or suspected and City hereby waives the provisions of Civil Code Section 1542 set forth in Recital L above. The release of unknown claims contained in this Paragraph 9(b) is a separate consideration for the release contained in Paragraph 9(a) hereof and City would not have executed this Agreement or agreed to this Paragraph 9(b) but for the release contained in Paragraph 9(a). 10. This Agreement may be amended by an instrument in writing referring hereto, signed by Owners and City. 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 I0. 11. Owners shall have the right to assign all or any part of their rights or obligations under this Agreement, subject to prior written approval of City, which approval shall not be unreasonably withheld. 12. Owners hereby represent and warrant to City that they collectively hold the entire legal and equitable ownership interest in the Subject Property, with full power and authority to enter into this Agreement, and that no other party except for Bas Homes, Inc., has any right, title or interest in the Subject Property or the right to develop the same pursuant to SD 1364 and this Agreement. Owners specifically represent and warrant to City that neither DeMartini nor his Trustee in Bankruptcy has any ownership or other interest in the Subject Property or the State Action or 'the Federal.Action. Those Owners who are or were in bankruptcy proceedings further represent and warrant to City that their execution and performance of this Agreement will be authorized in such proceedings and will not violate any order of the Bankruptcy Court. 13. This Agreement is entered into for the benefit of the parties hereto and shall be binding upon the parties hereto, their heirs, successors and assigns. Other than the parties hereto and their heirs, successors and assigns, and the attorneys now of record in the State and Federal Actions, no third person shall be entitled, directly or indirectly, to base any claim or have any right arising from or related to this Agreement. 14. In the event City or any of its officials, officers, agents or representatives is made a party to any litigation commenced by or on behalf of DeMartini or his Trustee in Bankruptcy or by any third person not a party to this Agreement claiming ownership or development rights with respect to the Subject Property by or through DeMartini, Owners shall indemnify and hold City and its officials, officers, agents, representatives and employees harmless from and against any costs, expenses (including attorney's fees), liabilities or judgments arising therefrom and, if requested by City to do so, Owners shall provide at no cost to City a defense for City or any of its officials, officers, agents, representatives or employees in any such litigation. 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 litigation in addition to any other relief to which he, she or it may be entitled. 16. The effective date of this Agreement shall be the date upon which it is last signed by all parties and approved as to form by their attorneys. It may be signed in one or more counterparts and, when all parties have signed the original or a counterpart, such counterparts together shall constitute one original document. When so signed, this Agreement shall be filed with the court in the State and Federal Actions as a Stipulation for Settlement, but the effectiveness of this Agreement does not depend upon court approval or any court order or orders. OWNERS: Dated: BERNARD J. VOGEL, JR. Dated: JOAN M. VOGEL Dated: ORVILLE TELSTAD Dated: VINCENT J. DiGIROLAMO -8- Dated: ELLEN A. DiGIROLAMO APPROVED AS TO FORM: Dated: BERNARD J. VOGEL, JR. Attorney for Owners THE CITY O1~ SARATOGA Dated: B / /o^v o e. MOx s, yor · Attest: !,~~ J. WAYNE DERNETZ City Clerk APPROVED AS TO FORM: Dated: HAROLD S. TOPPEL City Attorney ROPERS, MAJESKI, KOHN, BENTLEY, WAGNER & KANE Dated: By. MARK G. BONINO Special Counsel, City of Saratoga (DeMartini v. City of Saratoga) Dated: PAUL B. SMITH City Attorney (Vogel v. City of Saratoga) -9- ACKI~OWLEDGMENT AND CONSENT The undersigned hereby acknowledge, approve and consent to the foregoing Stipulation for Settlement. Trustee in Bm~ruptcy VINCENT J. DiGIROLABaO and ELLEN A. DiGIROLAM O BAS HOMES~ INC., a California eorporation Dated: By. -l{}- EXItBIT DESCRIPTION Ol~ WORK Reconstruction of Pierce Road from Vista Regina to Via Regina, including: (a) Excavation to a depth of 13" and removal of existing road surface and base. (b~ ' Preparation of sub-base to grade and compaction. (e) Installation of necessary drainage faeilities as specified by City Engineer. , (d) Construction of pavement structural section consisting of 9" aggregate base and 4" A.C. surface. . (e) Installation of pavement markers.