HomeMy WebLinkAboutRES NO 020-09RESOLUTION NO. - ~ 9
RESOLUTION OF THE CITY COUNCIL VACATING
RESOLUTION NO. 035-08 CERTIFYING FINAL
ENVIRONMENTAL IMPACT REPORT, VACATING
RESOLUTION NO. 036-08 APPROVING GENERAL PLAN
AMENDMENT NO. 05-1580, AND VACATING
ORDINANCE NO. 4502, APPROVING CONCURRENT
ZONE CHANGE N0.05-1580 FOR TEN SECTION LLC.
WHEREAS, the proposed project includes General Plan Amendment and
Concurrent Zone Change No. 05-1580 to allow the development of low-density
residential on 220 acres to allow for the development of 788 single-family residential
units on the property located south of Panama Lane and east of Nord Avenue, in the
western portion of Section 28, Township 30 South, Range 26 East, MDBM ("Property");
and
WHEREAS, the applicant for the proposed project is Ten Section, LLC
("Applicant"); and
WHEREAS, on February 27, 2008, the City Council of the City of Bakersfield
("City") adopted Resolution No. 035-08 which certified Final Environmental Impact
Report (SCH#2006101007) and adopted related findings of fact and Statement of
Overriding Considerations; and
WHEREAS, on February 27, 2008, the City Council of the City of Bakersfield
adopted Resolution No. 036-08 which approved General Plan Amendment No. 05-1580;
and
WHEREAS, on March 26, 2008, the City Council of the City of Bakersfield
adopted Ordinance No. 4502 which approved the concurrent Zone Change; and
WHEREAS, the adequacy of the 2008 Environmental Impact Report and the
validity of the 2008 Project Approvals were challenged in the lawsuit entitled Sierra Club
v. City of Bakersfield, et al, Kern County Superior Court Case No. 263456-KCT
("Litigation"); and
WHEREAS, the applicant has agreed to and approved a settlement, joint
stipulation and court order vacating Resolution No. 035-08, vacating Resolution No.
036-08, and vacating Ordinance No. 4502 for Ten Section LLC. (See attached.)
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ORaGIN~L
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield
as follows:
1. Resolution No. 035-08, which certified Final Environmental Impact Report
and adopted Related Findings of Fact and Statement of Overriding Considerations is
hereby vacated and set aside; and
2. Resolution No. 03fi-08, which approved General Plan Amendment No. 05-
1580 is hereby vacated and set aside; and
3. Ordinance No. 4502, which approved concurrent Zone Change No. 05-
1580 is hereby vacated and set aside.
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I HEREBY CERTIFY that the foregoing Resolution was passed and adopted, by
the Council of the City of Bakersfield at a regular meeting thereof held on
FEI3 2 5 ~ppg by the following vote:
A( YES.' COUNCILMEMBER _~~iUYI ~ ~~~;~I,~ILLYY~ . ~/U 21 r
ES: COUNCILMEMBER Y-.dI~-Q.,
ABSTAIN: COUNCILMEMBER__ n~-
ABSENT: COUNCILMEMBER ~mA~.fti
PAMELA A. McCARTHY, C
CITY CLERK and Ex Officio C erk of the
Council of the City of Bakersfield
APPROVED: FEB 2 5 2009
By: ~~ ~
ROBERT M. SHERFY
Deputy City Attorney
RMS:Isc
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APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This Settlement Agreement and Mutual Release of all Claims
("Agreement") is entered into on February.?3, 2009, by and among the Sierra Club, a
California non-profit membership club ("Petitioner"), the City of Bakersfield, a charter
city, and the Bakersfield City Council, its governing body (collectively "Respondent"),
and 10 Section, LLC, a limited liability company ("Real Party in Interest"), in light of the
following facts and circumstances:
WHEREAS, Real Party in Interest was the applicant for approval of a real
estate development project which proposed to construct approximately 788 single-
family residential units on approximately 220 acres located in the City of Bakersfield,
California ("Project"); and
WHEREAS, on or about February 27, 2008, Respondent adopted
Resolution No. 35-08, which certified the Final Environmental Impact Report for the
Project, and Resolution No. 36-08, which approved an amendment to the General Plan
for the Project, and Ordinance No. 4502, which approved a concurrent zone change for
the Project (collectively "Project Approvals"); and
WHEREAS, on or about April 1, 2008, Petitioner filed a petition for
peremptory writ of mandate and complaint for declaratory and injunctive relief against
Respondent and Real Parry in Interest (referred to in that action as "Ten Section, LLC"),
entitled Sierra Club v. City of Bakersfield, et al. (Kern County Superior Court Case No.
S-1500-CV-263456 KCT), which challenged the validity of the Project Approvals
("Lawsuit"); and
WHEREAS, pursuant to a written indemnity agreement between
Respondent and Real Party in Interest, Real Party in Interest deposited the sum of
$40,000.00 with Respondent for the payment of costs and attorneys' fees incurred by
Respondent in defense of the claims asserted against it in the Lawsuit ("Deposit"); and
WHEREAS, attorney George Martin has deposited an additional $627.39;
and
WHEREAS, the parties wish to settle all claims and disputes between
them arising out of or relating to the Project Approvals, the Lawsuit and the Deposit
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without admitting or establishing liability, fault, blame or the truth or veracity of any of
the claims made by and among them.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL
COVENANTS SET FORTH BELOW, THE PARTIES AGREE AS FOLLOWS:
1. Incorporation of Recitals. The recitals contained above are
incorporated herein as though set forth in full.
2. Stipulation.
2.1. Concurrently with execution of this Agreement, Petitioner
shall execute the Stipulation re Settlement and [Proposed] Order Thereon, in the form
attached hereto as Attachment 1 ("Stipulation"), by which Petitioner shall consent to and
authorize its counsel of record to file a request for dismissal with prejudice of the
Lawsuit within five days after Respondent and Real Party in Interest perform their
obligations pursuant to sections 2.2 and 2.3 below.
2.2. Concurrently with execution of this Agreement, Respondent
shall execute the Stipulation, by which Respondent shall consent to and provide for:
2.2.1. Respondent's adoption of a resolution vacating and
setting aside the Project Approvals at the next regularly scheduled meeting of the
Bakersfield City Council following the Kern County Superior Court's entry of an order
approving the Stipulation as requested pursuant to section 2.4 below; and
2.3. Concurrently with execution of this Agreement, Real Party in
Interest shall execute the Stipulation, by which Real Party in Interest shall:
2.3.1. Consent to and authorize Respondent to adopt a
resolution vacating and setting aside of the Project Approvals as provided in section
2.2.1 above; and
2.4. Immediately upon the parties' execution of this Agreement
and the Stipulation, counsel of record for Real Party in Interest shall file the Stipulation
in the Kern County Superior Court and shall request that said court enter the proposed
order thereon forthwith.
2.5. After
a) the "Settlement Agreement and Mutual Release of All
Claims" has been signed by all parties, and
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b) the parties have executed and the judge has signed the
"Stipulation re Settlement and [Proposed] Order
Thereon," and
c) Respondent has adopted a resolution vacating the
Project Approvals,
then Respondent shall pay from the monies deposited $28,164.19 to Babak Naficy,
Esq. in full payment of all costs and attorney's fees incurred by him on behalf of
Petitioner in the prosecution and settlement of the Lawsuit, and shall retain $12,463.20
to cover all of Respondent's costs and attorney's fees in defense and settlement of the
Lawsuit.
3. Mutual Release.
3.1. The parties to this Settlement Agreement hereby release and
discharge each other, and their elected and appointed officials, agents, officers,
directors, shareholders, partners, employees, affiliates, successors, heirs and assigns,
from any and all claims, rights and causes of action whatsoever arising out of or relating
to the Lawsuit, and from any other cause whatsoever.
3.2. The parties to this Settlement Agreement hereby waive all
rights under Section 1542 of the California Civil Code. The parties understand that Civil
Code Section 1542 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 must have materially affected his
settlement with the debtor.
4. Miscellaneous.
4.1. The parties have read all of this Settlement Agreement, fully
understand the same and have consulted with their respective attorneys regarding this
Settlement Agreement. The parties further acknowledge that they execute this
Settlement Agreement acting on their independent judgment and upon the advice of
their respective counsel, without any representation, express or implied, of any kind
from any other party, except as specifically set forth herein.
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4.2. Each party signing this Settlement Agreement jointly and
severally represents or warrants that he or she has full authority to obligate the party or
parties on whose behalf he or she is signing and that no further action or authorization
is necessary to execute this Settlement Agreement on behalf of each such party.
4.3. This Settlement Agreement may be pleaded by any party
hereto as a full and complete defense to and may be used as the basis to enjoin any
action or other proceeding of any type which may be initiated in violation of the terms
hereof. In the event it becomes necessary for any party to obtain the services of an
attorney to enforce the provisions of this Settlement Agreement against any party who
has breached any obligation set forth herein, the prevailing party in any proceeding shall
be entitled to recover its reasonable attorneys' fees and costs incurred.
4.4. This Settlement Agreement constitutes the entire fully
integrated written Settlement Agreement between the parties with respect to the subject
matter of this Settlement Agreement and may not be modified or waived except by a
writing duly executed on behalf of the party to be bound by the waiver or modification.
4.5. If any part of this Settlement Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, such decision shall not affect
the validity of any remaining portion of this Settlement Agreement and the remainder
shall stand in full force and effect.
4.6. This Settlement Agreement is executed and delivered within
the State of California and shall be construed and covered by the laws of the State of
California.
4.7. This Settlement Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to all officers, directors, shareholders,
partners, employees, agents, successors, affiliates, heirs and assigns of any party.
4.8. This Settlement Agreement may be executed in one or more
counterparts and, when executed by each of the parties signatory hereto, said
counterparts shall constitute a single valid Settlement Agreement even though each of
the signatory parties may have executed separate counterparts hereof.
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IN WITNESS WHEREOF, this Settlement Agreement and Mutual Release
of All Claims is executed on the date set forth below.
Dated: February _, 2009
Dated: February ~ 2009
Dated: February, 2009
Dated: February, 2009
APPROVED AS TO FORM:
LAW OFFICE OF BABAK NAFICY
By:
BABAK NAFICY
Attorneys for Petitioner
SIERRA CLUB
SIERRA CLUB
By:
(Print Name)
(Title)
CITY OF BAKERSFIELD
By:
(Print Na e)
(Title) Mayor
BAKERSFIELD CITY COU IL
By:
(Print Name) ~ EY z. xaLL
(Title) Mayor
10 SECTION, LLC
By:
(Pri
(Titl
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OFFICE OF THE CITY ATTORNEY
VIRGINIA GENNARO, City Attorney
By: ~~
ROBERT M. SHERFY
Deputy City Attorney
Attorneys for Respondents
CITY OF BAKERSFIELD and
BAKERS ,IELD CITY COUNCIL
BORTON P I I, LL
B
G RGE F. M RTIN
FFREY A. TRAVIS
Attorneys for Real Party in Interest
10 SECTION, LLC
ATTACHMENTI
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VIRGINIA GENNARO (SBN 138877)
Cry Attorney
ROBERT M. SHERFY (SBN 82809)
~y C Attorney
O ICE O THE CITY ATTORNEY
1600 Trwctun Avenue. Fourth Floor
Bakersfield, California 93301
Telephone: (661) 326-3721
Facsimile: (661) 852-2020
MICHAEL M. HOGAN~SBN 95051)
HOGAN GUINEY DIC , LLP
225 Broadway, Suite 1900
San Diego, California 92101
Telephone: (619) 687-0282
Facsimile: (619) 234-6466
Attorneys for DefendantsJRespondents
CITY OF BAKERSFIELD,
BAKERSFIELD CITY COUNCIL
EXEMPT FROM FILING FEES
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5UPrnIOA SOUR f~ME R POLIiAN DIVISION
COUNTY OF KERN
FEB 2 5 2009
TERRY McNALLY, CLERK
BY DEPUTY
SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN
METROPOLITAN DIVISION
SIERRA CLUB, ) Case No. S-1500-CV-263456 KCT
Plaintiff/Petitioner,
vs. STIPULATION RE SETTLEMENT AND
[PROPOSED ORDER THEREON
CITY OF BAKERSFIELD a municipal
Corporation, BAKERSFIELD CITY
COUNCIL, and DOES 1 - 25, inclusive, Judge: Kenneth C. Twisselman II
Defendants/A®spondents, Dept: 8
TEN SECTION, LLC, JAMES MANLEY,
And DOES 26-50, inclusive,
Real Parties in Interest.
Filed: April 1, 2008
Petitioner Sierra Club ("Petitioner") and respondents City of Bakersfield and
Bakersfield City Council (collectively "Respondent") and real party in interest 10 Section,
LLC (erroneously sued as Ten Section, LLC) ("Real Party in Interest"), by and through
their respective counsel of record, hereby stipulate and agree as follows:
t_.
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Feb 23 2009 11:04AM HP LRSERJET FAX
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(8051 593-0946 _ _ p:2
1. The parties have entered into a written Battlement Agreement and Mutual
Release of All Clalma ("Settlement Agreement"), a true and correct copy of which is
attached hereto as Exhibit 1.
2. Pursuant to the 8ettlernent Agreement, the parties have consented to and
authorized the following actions:
A. The filing by Petitioner ofi a request for dismissal, with prejudice, of
this action in its entirety;
R. The adop'tlon of a resolution by Respondent vacating and setgng
aside Respond®nt's prior certification of an environmentet impact report end approvals of
a general plan amendment and concurrent zone change for the real estate development
project proposed by Real Party in Interest which is the subject of this action;
C. The payment by Read Party in Interest to Respondent of the sum of
$12,483.20; and
D. The payment by Real Party in Interest to Pettdoner'a attorney of the
~ sum of $ 28,164.19.
J. Accordingly, the parties request the Court enter an order approving thi8
stipulation,
DATED: February •-' , 201'39
LAW OFFICE OF BABAK NAFICY
By;
BABAK N
Attomey for Petitioner
SIERRA CLUB
DATED: F®bruary , 2009
{dputanon re Settlement and [Prnpaied] order
OFFICE OF THE CITY ATTORNEY
VIRGINIA 4!_NNARO, City Attomey
By:
RT M. SHE
Deputy Clh- Attomey
Attomey for Ressppoondents
CITY OF BAKERSt"IELD and
BAKERSFIELD CITY COUNCIL
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1. The parties have entered into a written Settlement Agreement and Mutual
Release of All Claims ("Settlement Agreement"), a true and correct copy of which is
attached hereto as Exhibit 1.
2. Pursuant to the Settlement Agreement, the parties have consented to and
~~ authorized the following actions:
A. The filing by Petitioner of a request for dismissal, with prejudice, of
this action in its entirety;
B. The adoption of a resolution by Respondent vacating and setting
aside Respondent's prior certification of an environmental impact report and approvals of
a general plan amendment and concurrent zone change for the real estate development
project proposed by Real Party in Interest which is the subject of this action;
C. The payment by Real Party in Interest to Respondent of the sum of
~ $12,463.20; and
D. The payment by Real Party in Interest to Petitioner's attorney of the
~ sum of $ 28,164.19.
3. Accordingly, the parties request the Court enter an order approving this
stipulation.
!i DATED: February , 2009
DATED: February~2009
Stipulation re Settlement and fProoosedl Order
LAW OFFICE OF BABAK NAFICY
By:
BABAK NAFICY
Attorne for Petitioner
SIERRA CLUB
OFFICE OF THE CITY ATTORNEY
VIRGINIA GENNARO, City Attorney
B ~ ~~
Y'
ROBERT M. SHERFY
Deputy City Attorney
Attorneys for Respondents
CITY OF BAKERSFIELD and
BAKERSFIELD CITY COUNCIL ~.
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~I DATED: February ~, 2009
BORTON P~TF~INI, LL
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GE GE F. MARTIN
J FREY A. TRAVIS
ttomeys for -Real Party in Interest
10 SECTION, LLC
ORDER
The parties having entered into the foregoing stipulation and the written Settlement
Agreement and Mutual Release of All Claims attached thereto, and good cause
appearing therefor, IT IS HEREBY ORDERED that the foregoing stipulation is approved.
DATED:
~o! R'irf Section\Pldps\Captfon.doc
~~~~Y~TH TWISSEI,Mpp
w~~ TWISSEhI.IJ
JUDGE OF THE SUPERIOR COURT