SETTLEMENT AGREEMENT This Settlement and Attorneys' Fees Agreement ("'Settlement Agreement") is made and entered into by and between Petitioner FRIENDS OF MORAGA CANYON ("FOMC"), Respondents CITY OF PIEDMONT and PIEDMONT CITY COUNCIL (collectively, the "City"), and Real Parties in Interest BLAIR PARK, LLC and PIEDMONT RECREATIONAL FACILITIES ORGANIZATION (collectively, "PRFO"). FOMC, the City, and PRFO are collectively referred to as the "Parties." DEFINITIONS For purposes of this Settlement Agreement, the terms listed below are defined as follows: A.
"Addendum" means the Addendum to the Final EIR issued by the City on
November 23, 2011 and approved by the City on December 6, 2011. B.
"Blair Park" means the 5.6-acre park located within the City of Piedmont
along Moraga Avenue between Red Rock Road and Maxwelton Road. C.
"Blair Park Funds" means the fifteen thousand dollars ($15,000) the City
agrees to allocate, as provided for in Paragraph 3.B below, to be used solely for hiring the Consultant and implementing the Landscape Improvement Plan. D.
"Consultant" means a professional landscape architect consultant who has
experience in creating and/or implementing plans for natural "open space" parks similar to Blair Park. E.
"CEQA" means the California Environmental Quality Act.
F.
"Effective Date" means the date the Parties sign this Settlement
Agreement, as indicated below. If the Parties sign this Settlement Agreement on different dates, then the last date of signing by a Party shall be the Effective Date.
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G.
"EIR" means environmental impact report.
H.
"Final EIR" means the Final Environmental Impact Report certified by the
City on December 6, 2010. I.
"Landscape Improvement Plan" means the improvements that the
Consultant will devise and the City will implement at Blair Park as described in Paragraph 3 .DG. J.
"Lawsuit" means the lawsuit initiated by the Petition for Writ of Mandate
filed by FOMC challenging the City's approval of the Blair Park Project, Friends ofMoraga
Canyon v. City ofPiedmont, et al. Superior Court of California, County of Alameda, Case No. RG12611028. K.
"Pedestrian Trail" means the existing rudimentary pedestrian trail that
extends throughout Blair Park.
L.
"Project" means the Project as approved by the City on December 6, 2011
and generally described in the EIR. The Project as considered in the EIR includes the proposal to construct and operate the Moraga Canyon Sports Fields at Blair Park and Coaches Field in the City of Piedmont. The Project as approved includes only the Blair Park component. M.
"Settlement Funds" means the fifteen thousand dollars ($1 5,000) that the
City agrees to pay to Shute, Mihaly & Weinberger LLP as provided for in Paragraph 3.A below to settle the Lawsuit. RECITALS N.
The City prepared a Final EIR for the Project, dated November 2010 that
considered the Project, with components at Coaches Field and Blair Park, and included: 1.
Draft EIR and Appendices, dated June 2010;
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2.
Responses to comments on the EIR;
3.
Draft EIR Text Revisions; and
4.
All attachments, incorporations and references to the documents
delineated above. 0.
On December 6, 2010, the City considered the Final EIR at a hearing. At
the conclusion of the hearing, the City certified the Final EIR but did not approve the Project. P.
On November 23,2011, the City issued an Addendum to the Final EIR.
Q.
On December 5, 2011, the City held a hearing on the Addendum and the
Project. The City voted to approve the Addendum; approve the Findings and Statement of Overriding Considerations; adopt a Mitigation, Monitoring and Reporting Program; and approve the Blair Park component of the Project. R.
The City filed a Notice of Determination for the Project on December 9,
S.
On January 5, 2012, FOMC filed a petition for writ of mandate
2011.
challenging the City's approval of the Project pursuant to CEQA, commencing the Lawsuit. The petition alleged that the City's approval of the Project was unlawful because the Findings were not based on substantial evidence and because the Final EIR and Addendum, inter alia, failed to include an accurate project description, to disclose and mitigate for the Project's significant impacts, and to adopt feasible alternatives. T.
On May 7, 2012, the City rescinded its approval of the Project.
U.
The Parties to this Settlement Agreement believe that their mutual
interests will be best served if any and all legal disputes between them involving the Project and included in the Lawsuit are resolved without further litigation.
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V.
The Parties agree that the Landscape Improvement Plan, as described in
Paragraph 3.D below advances the following goals: 1.
Preserving healthy native trees, removing dead or dying trees, and
gradually replacing removed trees with more appropriate species; 2.
Identifying appropriate drought-tolerant plants and ground covers
that will create an attractive setting for park users and enhance habitat for birds and other wildlife; 3.
Improving the existing Pedestrian Trail; and
4.
Eradicating invasive plants using low-impact methods.
SETTLEMENT AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and/or covenants contained in this Settlement Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows. 1.
Recitals Incorporated. Each recital set forth above is incorporated herein by
reference and is made part of this Settlement Agreement. Any conflict between the general provisions of the recitals and the specific provisions of the Settlement Agreement shall be resolved in accordance with the specific provisions of the Settlement Agreement. 2.
Settlement Agreement Not Admission. All Parties understand and agree that
nothing in this Settlement Agreement, or in the execution of this Settlement Agreement, shall constitute or be construed as an admission by any Party of any inadequacy or impropriety in connection with the approvals by the City with respect to the Project. 3.
City's Obligations.
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A.
Within fifteen (15) days after the Effective Date, the City shall pay, from
funds previously deposited by PRFO pursuant to paragraph 3(b) of the August 12, 2011 Reimbursement and Indemnification Agreement (the "Indemnification Fund"), FOMC's attorneys' fees and costs in the amount of fifteen thousand dollars ($15,000) ("Settlement Funds") to Shute, Mihaly & Weinberger LLP. B.
Within fifteen (15) days after the Effective Date, the City shall allocate
fifteen thousand dollars ($15,000) of the Indemnification Fund for the City to use to hire the Consultant and implement the Landscape Improvement Plan at Blair Park ("Blair Park Funds"), as described below. C.
The City shall use the Blair Park Funds only in the manner described in
this Paragraph 3. PRFO agrees that the expenditures in this Paragraph, as well as Paragraphs A and B above, comply with the terms of the Reimbursement and Indemnification Agreement, and PRFO waives any claim to the contrary. D.
The City shall retain a professional landscape architect consultant
("Consultant") who has experience in creating and/or implementing plans for natural "open space" parks similar to Blair Park. The Consultant shall be responsible for devising a Landscape Improvement Plan that meets the goals expressed in Recital V above and includes at a minimum the following: 1.
Determination oftree health;
2.
Tree removal and pruning;
3.
Removal of invasive ivy and other invasive plants;
4.
Weed abatement beyond annual weed control;
5.
Erosion control; and
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6.
Planning and development of improvements to the Pedestrian
Trail. E.
The City shall prepare and provide to FOMC a draft scope of work for the
Consultant. The City must provide FOMC the opportunity to comment on the draft scope of work and shall not hire the Consultant until it has received written comments on the draft scope of work from FOMC. The City shall in good faith consider FOMC's comments, but retains sole discretion over the hiring of the Consultant. F.
The City shall provide FOMC the opportunity to comment on the
Landscape Improvement Plan prepared by the Consultant before it is adopted and/or implemented. The City shall not approve or implement the Landscape Improvement Plan until it has received written comments on the Landscape Improvement Plan from FOMC. The City shall in good faith consider FOMC's comments, but retains sole discretion over the adoption and implementation of the Landscape Improvement Plan. G.
Upon approval of the Landscape Improvement Plan, the City shall
implement the Landscape Improvement Plan using all of the remaining Blair Park Funds and any such further funds as the City chooses. H.
Notwithstanding any other provision of this Settlement Agreement,
nothing herein shall be construed to require the City to expend any funds for any improvements to Blair Park in excess of the $15,000 provided for in Paragraph 3.B. 4.
FOMC's Obligations A.
Within ten (10) days after Shute, Mihaly & Weinberger receives the
Settlement Funds from the City as described in Paragraph 3.A, FOMC shall file a dismissal with
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prejudice ofthe Lawsuit. FOMC will provide a copy ofthe Notice of Dismissal to the City and PRFO by electronic and overnight mail. B.
FOMC shall not file a memorandum of costs with the court, or otherwise
claim or seek to recover costs or attorneys' fees in connection to the Lawsuit, and FOMC hereby waives any right to any such recovery. C.
Upon receiving the draft scope of work from the City, as provided for in
Paragraph 3.E, FOMC shall provide written comments to the City within a reasonable period of time. D.
Upon receiving the Landscape Improvement Plan from the City, as
provided for in Paragraph 3.F, FOMC shall provide written comments to the City within a reasonable period of time. 5.
No Assignment. The Parties represent that they have not sold, assigned,
transferred, conveyed or otherwise disposed of any claim, demand, cause of action, obligation, damage or liability released above, and each further agrees to indemnify and hold the other Parties harmless from any liability, claims, demands, damages, costs, expenses, and attorneys' fees incurred by any such assignment or transfer. 6.
General Release and Waiver of Civil Code Section 1542. With respect to claims
related to the Petition within the foregoing releases, the Parties specifically and expressly waive any right and benefit available to them under the provisions of Section 1542 of the Civil Code of the State of California, which 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.
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It is understood and agreed by the Parties that this Settlement Agreement is a full and final general release and shall extinguish all of the Parties' past and present claims, demands, and causes of action against each other, whether known or unknown, foreseen or unforeseen, anticipated or unanticipated, that arise out of or in any way relate to the Petition, which claims, demands, and causes of action are remised and forever discharged. 7.
Future Project. Nothing in this Settlement Agreement shall be read to prohibit
FOMC or any individual member ofFOMC from challenging, either administratively or judicially, any project that may be approved by the City in the future, nor shall anything in this Settlement Agreement be read to prohibit the City from proposing or approving any project in the future, including any project proposed for Blair Park or Coaches Field. 8.
Notices. All notices required under this Settlement Agreement shall be in writing
and may be given either personally or by registered or certified mail (return receipt requested). Any Party may at any time, by giving 10 calendar days' written notice to the other Party, designate any other person or address in substitution of the address to which such notice shall be given. Such notice shall be given to the Parties at their addresses set forth below: For Friends of Moraga Canyon:
Jim Semitekol 9 Abbott Way Piedmont, California 94618 Telephone: (510) 601-1688 Email:
[email protected] With copies to: Gabriel Ross Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Email:
[email protected]
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For the City of Piedmont and Piedmont City Council:
City of Piedmont Attn: City Clerk 120 Vista A venue Piedmont, California 94611 Telephone: (510) 420-3040 Email:
[email protected] With copies to: Thomas Curry Burke, Williams and Sorenson, LLP 1901 Harrison Street, Suite 900 Oakland, California 94612 Telephone: (510) 273-8739 Email:
[email protected] For Blair Park, LLC and Piedmont Recreational Facilities Organization:
Eric R. Havian Phillips & Cohen LLP 100 The Embarcadero, 3rd Floor San Francisco, CA 94105 Telephone: (415) 836-9000 Email:
[email protected] With copies to: Andrew B. Sabey Cox, Castle & Nicholson LLP 555 California Street, I Oth Floor San Francisco, California 94104 Telephone: (415) 262-5103 Email:
[email protected] 9.
Miscellaneous Provisions.
A.
Except for the payments referenced herein, each Party shall bear its own
attorneys' fees and costs, and shall not seek to recover such fees and costs from any other Party. B.
The Parties shall cooperate to ensure that the steps necessary to implement
this Settlement Agreement are carried out.
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C.
The titles and headings of the various paragraphs of this Settlement
Agreement are intended solely for convenience of reference. D.
This Settlement Agreement may not be altered or modified except in
writing by a document signed by all Parties. E.
This Settlement Agreement shall be governed by and construed according
to the laws of the State of California with venue in Alameda County. F.
The Parties do not intend to create any third party beneficiaries to this
Settlement Agreement. Except for heirs, successors, assignees, and transferees (as provided in subparagraph G), no person or entity other than the Parties is intended to be bound by, or shall be bound by, any of the provisions of the Settlement Agreement. G.
Except as otherwise specifically set forth herein, this Settlement
Agreement shall be binding on and inure to the benefit of the heirs, successors, assignees, and transferees of the Pruties. The Parties shall provide a copy of this Settlement Agreement to their heirs/assignees/transferee/grantees. The obligations set forth in this agreement shall be enforceable against any such heirs/assignees/transferee/grantees. H.
This Settlement Agreement contains all of the representations and the
entire understanding and agreement among the Parties with respect to the matters described in the Settlement Agreement. Correspondence, memoranda, and oral and written agreements that originated before the date of this Settlement Agreement are replaced in total by this Settlement Agreement unless otherwise expressly stated in this Agreement.
I.
The individuals signing this Settlement Agreement on behalf of each Party
represent and warrant that they have full authority and are duly authorized to do so on behalf of the Party they represent.
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J.
The invalidity of any portion of this Settlement Agreement shall not
invalidate the remainder. If any tenn, provision, covenant, or condition ofthis Settlement Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the Parties shall amend this Settlement Agreement and/or take action necessary to achieve the intent of this Settlement Agreement. K.
The Parties acknowledge that each Party and its counsel have reviewed
and revised this Settlement Agreement and that no rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall be employed in the interpretation of this Settlement Agreement.
L.
Upon a breach by any Party, the Aggrieved Party may institute
proceedings to compel injunctive relief or specific perfmmance by the Party in breach of its obligations, including specific performance of any obligation to make monetary contributions to the Settlement Funds or Blair Park Funds. The Parties have determined that monetary damages (which, for the purposes of this Section, do not include payment of monetary consideration) are inappropriate, would be extremely difficult and impractical to fix or determine, and that the equitable remedies described herein are appropriate for.the enforcement of the Agreement. No Party would have entered into or become a party to this Agreement if it were to be liable for monetary damages, and the Parties agree not to sue for or claim any monetary damages under this Agreement, and expressly waive the right to do so. In any action to enforce this Settlement Agreement, the prevailing Party shall recover its reasonable attorneys' fees and costs. Nothing in this Settlement Agreement shall be construed as requiring the City to relinquish or delegate its land use authority or police power.
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M.
This Settlement Agreement may be executed in counterparts. The
counterparts shall together comprise a single agreement. Facsimile and portable document format (PDF) copies shall be deemed originals by the Parties.
DATED: November__, 2012
FRlliNDSOFMORAGAC~~ON
By:
DATED: November _ , 2012
CITY OF PIEDMONT; PIEDMONT CITY COUNCIL By:
DATED: November
L!J_, 2012
BLAIR PARK, LLC; PIEDMONT RECREATIONAL FA ILITIES ORGANIZ ON By:
441300.7
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M.
This Settlement Agreement may be executed in counterparts. The
counterparts shall together comprise a single agreement. Facsimile and portable document format (PDF) copies shall be deemed originals by the Parties.
DATED: November/!J_, 2012
DATED: November _ , 2012
CITY OF PIEDMONT; PIEDMONT CITY COUNCIL By:
DATED: November _ , 2012
BLAIR PARK, LLC; PIEDMONT RECREATIONAL FACILITIES ORGANIZATION By:
441300.7
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M.
This Settlement Agreement may be executed in counterparts. The
counterparts shall together comprise a single agreement. Facsimile and portable document format (PDF) copies shall be deemed originals by the Parties.
DATED: November_, 2012
FIDENDSOFMORAGACANYON By:
DATED: November
fCJ , 2012
CITY OF PIEDMONT; PIEDMONT CITY COUNCIL By·
DATED: November _ , 2012
BLAIR P , LLC; PIEDMONT RECREATIONAL FACILITIES ORGANIZATION By:
441300.7
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