HomeMy WebLinkAbout20180123_Settlement-Final-WithSignatures_Preserve-SLOLifeSETTLEMENT AGREEMENT
This Settlement Agreement is made by and between Petitioners PRESERVE THE SLO LIFE-
BUCKLEY ROAD, LOS VERDES PARK UNIT ONE HOMEOWNERS' ASSOCIATION, and
LOS VERDES PARK (UNIT 2) HOMEOWNERS ASSOCIATION; Respondents CITY OF
SAN LUIS OBISPO, a Municipal Corporation and the CITY COUNCIL OF THE CITY OF
SAN LUIS OBISPO; and Real Parties in Interest AVILA RANCH, LLC, and ANDREW
MANGANO.
DEFINITIONS
For purposes of this Agreement, the terms listed below are defined as follows:
1. "Agreement" means this Settlement Agreement.
2. "CEQA" means the California Environmental Quality Act ("CEQA") (Pub.
Resources Code, § 21000 et seq.).
3. "City" means the Respondent City of San Luis Obispo and the City Council of the
City of San Luis Obispo.
4. "CMP" means the Construction Management Plan prepared for the Avila Ranch
Project.
5. "Effective Date" means the date the Parties sign this Agreement, as indicated
below. If the Parties sign this Agreement on different dates, then the latest date of signing by a
Party shall be deemed the Effective Date.
6. "HAWK" means High Intensity Activated Crosswalk as described in Chapter 4F
of the 2014 Caltrans Manual for Uniform Traffic Control Devices (MUTCD).
7. "HOA" or "HOAs" shall mean the homeowners association for Los Verdes One
or Los Verdes Two, or collectively, Los Verdes.
8. "Individual Petitioners" means individual Petitioners groups Preserve the SLO
Life -Buckley Road, Los Verdes Park Unit One Homeowners' Association, and Los Verdes Park
Unit Two Homeowners' Association.
9. "LOVR Bypass" means the Los Osos Valley Road Bypass as described in the
Project EIR.
10. "Lawsuit" means the lawsuit initiated by the Petition for Writ of Mandate filed by
Petitioners, PRESERVE THE SLO LIFE-BUCKLEY ROAD, LOS VERDES PARK UNIT ONE
HOMEOWNERS' ASSOCIATION, and LOS VERDES PARK (UNIT 2) HOMEOWNERS
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ASSOCIATION, entitled Preserve the SLO Life -Buckley Road et al. v. City of San Luis Obispo,
et al. (Superior Court of California, County of San Luis Obispo, Case No. 17CV-0573) on
October 19, 2017.
11. "Los Verdes" means Los Verdes One and Los Verdes Two, collectively.
12. "Los Verdes One" means Los Verdes Park Unit One Homeowners' Association,
Inc., a California mutual benefit corporation (SOS Entity No.: C0686471).
13. "Los Verdes Two" means Los Verdes Park (Unit Two) Homeowners'
Association, a California mutual benefit corporation (SOS Entity No.: CC0753792).
14. "Preserve the SLO Life -Buckley Road" means Petitioner Preserve the SLO Life -
Buckley Road, an unincorporated association, whose representatives are Kathy Borland and Jim
Waldsmith.
15. "Parties" means Petitioners, Respondents, and Real Parties collectively.
16. "Party" means one of the Parties individually.
17. "Petitioners" means Preserve the SLO Life -Buckley Road, Los Verdes One, and
Los Verdes Two, collectively.
18. "Project" means the Avila Ranch Project including the development of
720 residential units and 15,000 square feet of neighborhood commercial uses on a 150-acres site
north of Buckley Road within the boundaries of the Airport Area Specific Plan, as approved on
September 19, 2017 and October 3, 2017. The Project includes the Avila Ranch Development
Plan, an Airport Area Specific Plan Amendment 1318-2015, a General Plan Amendment 1319-
2015, a Vesting Tentative Tract Map No. 3089, a Rezone per Ordinance 1638 (2017 Series), a
Development Agreement (Development Agreement 2017-1 adopted by Ordinance 1639 (2017
Series)), and the formation of a Community Facilities District, and all subsequent and
implementation actions necessary to construct the Project.
19. "Project EIR" or "EIR" means the Final Environmental Impact Report prepared
for the Project and certified by the City on September 19, 2017 (SCH # 2015081034). The
Project EIR addresses impacts associated with the City's approval of the Project.
20. "Real Parties" means Real Parties in Interest Avila Ranch, LLC and Andrew
Mangano collectively.
21. "Respondents" means the City.
22. "SRIP" means Suburban Road Improvement Plan for the Avila Ranch Project.
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below.
23. "Warrant Analysis" means the analysis conducted pursuant to Paragraph 3(b)
RECITALS
A. On September 19, 2017, the City certified the Project EIR and approved the
Project.
B. On October 19, 2017, Petitioners filed a verified Petition for Writ of Mandate
challenging the City's approval of the Project. This petition was assigned Case No. 17CV-0573
by the Superior Court of California, County of San Luis Obispo.
E. The Parties to this Agreement believe their mutual interests will be best served if
the current litigation is resolved as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and/or covenants
contained in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Recitals. The above recitals are true and are hereby incorporated by reference as
part of this Agreement.
2. No Admissions. The Parties understand and agree that nothing in this Agreement,
or in the execution of this Agreement, shall constitute or be construed as an admission by any
Party of any inadequacy or impropriety in connection with the resolution of the Lawsuit before
the San Luis Obispo Superior Court. This Agreement is the result of a compromise and nothing
contained herein shall be construed as an admission of liability, responsibility, or wrongdoing by
the Respondents or Real Parties, and likewise Petitioners do not concede that they are not
entitled to any recovery arising from the allegations in the Lawsuit. It is agreed that all
statements contained herein and the conduct of any Party in connection with this Agreement
shall be inadmissible as evidence under California Evidence Code § 1152(a), except that the
statements contained herein shall be admissible in any action to enforce or interpret this
Agreement pursuant to Code of Civil Procedure § 664.6.
3. Obligations of the City:
a. Transportation Impact Fund: The City shall recommend applying the Real
Parties' payment for dual northbound left turns only, from Higuera to LOVR (Mitigation
Measure TRANS-13) to the LOVR Bypass project if the LOVR Bypass is determined, in
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conjunction with the project level evaluation of future projects in the area, to be a feasible
substitute mitigation measure in lieu of adding a second northbound left turn lane at the
intersection of Los Osos Valley Road and Higuera Street, as described in the EIR. This
determination would be based on, among other things, a feasibility study to be prepared by the
Creekside properties between Los Verdes and San Luis Creek as part of a development
application for that area, and would be subject to all appropriate environmental review and
documentation, and amendment of City and County plans to allow for the LOVR Bypass, if and
when deemed feasible and appropriate, which actions are in the sole legislative discretion of the
City Council.
b. Los Osos Valley Road/Los Verdes: Within six (6) months of the Effective
Date of this Agreement, the City shall hire either Omni Means, or TJKM to perform and
complete a warrant analysis for full signalization and HAWK signal ("Warrant Analysis") at the
intersection of Los Osos Valley Road and the driveway entrances for Los Verdes. The City shall
share the results of the Warrant Analysis with the representative members of Los Verdes One
and Los Verdes Two identified in Paragraph 8(m) below within three (3) business days of
receipt. The City retains full discretion to determine, taking into consideration the Warrant
Analysis, the advisability and appropriateness of the installation of a traffic signal or HAWK at
said intersection. Nothing herein shall obligate the City to use City funds towards the installation
or the construction of a signal or HAWK at said intersection.
C. CMP/SRIP: City staff shall affirmatively outreach to the representatives of
Los Verdes identified in Paragraph 8(m) below to participate in the review of the CMP and SRIP
for the Project. While City Public Works and Transportation Engineering staff shall give serious
consideration to all timely, credible suggestions, the final decisions and design of the CMP and
SRIP are within the City's sole discretion.
d. Work on Improved Bike and Pedestrian Planning: City shall involve the
representatives of Los Verdes identified in Paragraph 8(m) below, or their designees, in the next
citywide process of updating the City Bike Master Plan.
4. Obli)zations of Real Parties:
a. Buckley Road:
i. Real Parties hereby confirm they will a contribute $270,000 to
improvements on Buckley Road at Davenport Creek. See Table B-2 of Exhibit C of the
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Development Agreement between Avila Ranch LLC and City, recorded in the Official Records
of San Luis Obispo County on November 17, 2017 as Document No. 2017053192.
ii. Within thirty (30) days of Preserve the SLO Life -Buckley Road
setting up the Preserve the SLO Life -Buckley Road Account pursuant to Section 5(d) below and
provided Preserve the SLO Life -Buckley Road provides Real Parties with wiring instructions,
Real Parties shall deposit $75,000 into the account.
b. Los Osos Valley Road/Los Verdes: Real Parties shall pay City, all
reasonable costs associated with the Warrant Analysis, which shall be conducted pursuant to
Item 3(b) above. If City decides to move forward with installation of full signalization or the
HAWK signal per 3(b) above, Real Parties shall contribute $58,000 towards such improvement.
Petitioners are permitted to contribute funds from Item 4(c) below towards this improvement if
additional funds are necessary.
C. Noise: Within thirty (30) days of Los Verdes setting up the Los Verdes
Noise Accounts pursuant to Section 6(d) below, provided Los Verdes provides Real Parties with
wiring instructions, Real Parties shall deposit a total sum of $275,000 into the accounts for use in
constructing improvements to reduce the impact of traffic noise from Higuera on the residences
in Los Verdes One and Los Verdes Two pursuant to the terms in Paragraph 6 below. The total
amount to be deposited by Real Parties shall not exceed $275,000 and Los Verdes shall inform
Real Parties what portion of the $275,000 shall be deposited into each account.
d. Flooding: Within ninety (90) days of the Effective Date of this Agreement,
Real Parties shall meet with no more than six interested members of Preserve the SLO Life -
Buckley Road to explain how the Project's net increase in post -construction stormwater
contribution will be zero (less than zero since base flood elevation will actually be reduced), how
the Buckley Road improvements will reduce the depth of peak flooding by raising the road at
Vachell, how Jesperson Road on the Project site will serve as an alternative route to the flooded
road; and how the Project fully complies with City/County Drainage Design Manual, and Post
Construction/Pre-Construction requirements of Regional Water Quality Control Board regarding
post Project minimum and maximum storm water discharge; and for water quality. The Parties
acknowledge that solving existing flood control issues is the responsibility of the County Zone 9
flood control district, which Petitioners contribute to as part of their County property taxes.
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e. CMP/SRIP:
i. Real Parties commit to an enhanced outreach and information
effort as part of CMP/SRIP to keep neighbors informed of major construction activities.
ii. Within thirty (30) days of the City's issuance of a grading permit
or other construction permit for the Project's Public Improvements, Real Parties shall provide to
Petitioners' representative identified in Section 8(m) below a direct access phone and email to
address complaints during construction.
iii. Real Parties shall include in the construction specifications a
requirement that privately maintained roads are not open to construction traffic or parking.
Nothing herein imposes an obligation on the City to enforce this obligation since the City has no
jurisdiction over private streets or roads. Petitioners shall notify Real Parties' representative if it
believes that construction traffic or parking is occurring on Petitioners' private properties or
private common areas.
f. Attorney's Fees: Real Parties shall pay Petitioners' attorneys' fees upon
proof in the form of redacted invoices.
5. Obli ations ❑f Preserve the SLO Life- B uck ley Road:
a. In consideration of the commitments by Respondents and Real Parties set
forth in paragraphs 3 and 4, within five (5) calendar days of the Effective Date, Petitioners agree
to dismiss the Lawsuit with prejudice.
b. Preserve the SLO Life -Buckley Road agree to serve copies of the
dismissal on all Parties via email and by U.S. Mail.
C. Flooding: At least three (3) business days in advance of meeting with Real
Parties in Interest pursuant to Paragraph 4(d) above, Preserve the SLO Life -Buckley Road shall
prepare and submit to Real Parties a list of specific questions related to how the Project will
address existing flooding at Buckley and Vachell. Preserve SLO Life -Buckley Road agrees that
no members of the media shall be present at this meeting.
d. Fund and Accounting:
i. Within thirty (30) days of Effective Date of this Agreement,
Preserve the SLO Life -Buckley Road shall create a fund restricted for use in paying for signage,
road, and other traffic improvements on Buckley Road ("Preserve the SLO Life -Buckley
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Account") and shall provide Real Parties with wiring instructions. Preserve the SLO Life -
Buckley Road acknowledges that such signage, road and other traffic improvements may be
subject to the discretion and approval of the City, the County of San Luis Obispo and other
regulatory agencies. Preserve the SLO Life -Buckley Road and its representatives verify that
neither Preserve the SLO Life -Buckley Road nor any of its members shall use or borrow against
the funds in the Preserve the SLO Life -Buckley Road Account for any purpose other than for
signage, road, and other traffic improvements in the Buckley Road corridor and Preserve the
SLO Life -Buckley Road and its members further verify that they will not use the funds deposited
into the account for the purposes of litigation against any person or entity. Use of the funds or
borrowing against the funds for the purposes of any litigation shall constitute a material breach
of this Agreement. The City and/or Real Parties shall have the right to seek any and all remedies
available at law for such breach, including but not limited to repayment of all funds paid by Real
Parties pursuant to this Agreement. For purposes of enforcement of this Paragraph 5(d)(i),
Preserve the SLO Life -Buckley Road and its members acknowledge and agree that City shall
have the right, as an intended third -party beneficiary, to seek repayment of all funds paid by Real
Parties pursuant to this Agreement, in the event Preserve the SLO Life -Buckley Road or its
members violate the terms hereof.
ii. Preserve the SLO Life -Buckley Road shall provide the City with biennial
accounting of the funds and shall provide the City with reasonable inspection and auditing rights
of the Preserve the SLO Life -Buckley Road Account upon request. Preserve the SLO Life -
Buckley Road failure to provide reasonable inspection and auditing rights of the Preserve the
SLO Life -Buckley Road Account within thirty (30) days of request, shall constitute a material
breach of this Agreement.
iii. Preserve the SLO Life -Buckley Road shall expend the funds in the
Preserve the SLO Life -Buckley Road Account within fifteen (15) years of the Effective Date for
the purposes identified in this Agreement. Preserve the SLO Life -Buckley Account funds not
used within fifteen (15) years shall be paid directly to the County of San Luis Obispo for use on
bicycle related improvements or traffic calming features along the Buckley Road corridor. If the
County of San Luis Obispo refuses to accept such funds, then Preserve the SLO Life -Buckley
Road shall pay any remaining funds in the Preserve the SLO Life -Buckley Road Account to the
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City and the City agrees to use said funds for bicycle related improvements or traffic calming
features within the general vicinity of Buckley Road.
e. The signatories below represent, under penalty of perjury, that they have
the authority to settle on behalf of their Preserve the SLO Life -Buckley Road. Preserve the SLO
Life -Buckley Road and its representatives agree to defend, indemnify and hold harmless the City
and Real Party against any claim(s) that the settlement was not authorized.
6. Obligations of Los Verdes One and Los Verdes Two:
a. In consideration of the commitments by Respondents and Real Parties set
forth in Paragraphs 3 and 4, within five (5) calendar days of the Effective Date, Los Verdes One
and Los Verdes Two agree to dismiss this Lawsuit with prejudice.
b. Los Verdes One and Los Verdes Two agree to serve copies of the
dismissal on all Parties via email and by U.S. Mail.
C. Noise: Los Verdes One and Los Verdes Two shall be responsible for
acquiring any and all necessary entitlements, approvals or authorizations from the City for any
improvements constructed under this Agreement. Nothing in this Agreement shall be construed
as a pre -commitment, authorization or approval by the City of any improvements or entitlements
required to construct or install any improvements contemplated herein.
d. Fund and Accounting:
Within thirty (30) days of Effective Date of this Agreement, Los
Verdes One and Los Verdes Two shall create separate funds restricted to paying for noise
attenuation or traffic improvements benefiting Los Verdes One and Los Verdes Two ("Los
Verdes Noise Accounts") and shall provide Real Parties with wiring instructions, including
identification of the portion of the $275,000 to be deposited in each account. Any improvements
desired by Los Verdes One and Los Verdes Two shall be subject to any and all rules, regulations,
and policies of the City and any other regulatory agency. Nothing in this Agreement shall be
construed as a pre -commitment, authorization or approval from the City of any improvements or
entitlements required to construct or install any improvements contemplated herein. Los Verdes
One and Los Verdes Two are solely responsible for the allocation of these funds between the
HOAs and shall in no way involve the City or Real Parties in the allocation of the funds between
the HOAs. Pursuant to the HOA Bylaws, the President and Vice President of each HOA on
behalf of themselves, their successors and assignees agree that the HOAs will not use the Los
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Verdes Noise Accounts funds for any purpose other than construction of noise attenuation or
traffic improvements and will not, under any circumstances use or borrow against the funds
deposited into the Los Verdes Noise Accounts for the purposes of litigation against any person or
entity. The City and/or Real Parties shall have the right to seek any and all remedies available at
law for such breach, including but not limited to repayment of all funds paid by Real Parties
pursuant to this Agreement. Use of the funds or borrowing against the funds for the purposes of
any litigation shall constitute a material breach of this agreement. For purposes of enforcement
of this Paragraph 6(d)(i), Los Verdes each acknowledge and agree that City shall have the right,
as an intended third -party beneficiary, to seek repayment of all funds paid by Real Parties
pursuant to this Agreement, from the violating party in the event Los Verdes One or Los Verdes
Two violate the terms hereof.
ii. Los Verdes One and Los Verdes Two shall provide the City with
annual accounting of the funds and shall provide the City with reasonable inspection and
auditing rights of the Los Verdes Noise Accounts upon request. Los Verdes One and Los Verdes
Two shall expend the funds within the Los Verdes Noise Accounts for the purposes identified in
this Agreement within fifteen (15) years of the Effective Date of this Agreement. Los Verdes
Noise Accounts funds not used after 15 years shall be paid directly to the City of San Luis
Obispo and the City agrees to use said funds for traffic calming related improvements in the
vicinity of Los Verdes Parks One and Two or the LOVR Bypass. Los Verdes One's or Los
Verdes Two's failure to provide reasonable inspection and auditing rights for the Los Verdes
Noise Accounts within thirty (30) days of request, shall constitute a material breach of this
Agreement.
d. The signatories below represent under penalty of perjury, that they have
the authority to settle on behalf of Los Verdes One and Los Verdes Two. Los Verdes Unit One
and Los Verdes Unit Two agree to defend and indemnify the City and Real Party against any
claims that the settlement was not authorized.
7. Rights of the City:
a. The City retains full and sole discretion on any permitting, funding, or
design decisions involving City infrastructure including, but not limited to, the advisability and
appropriateness of the installation of the signal or HAWK at the intersection of LOVR and Los
Verdes and all final decisions with respect to the CMP and SRIP.
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b. This Agreement does not constitute a commitment on the part of the City
to any particular project. The City has no legal obligation to proceed with any improvement
unless and until the City determines that adequate environmental review, if required, has been
completed under CEQA. The City retains the absolute and sole discretion to design and modify
any improvements as may, in its sole discretion, be necessary to comply with CEQA.
8. Miscellaneous Provisions:
a. Cooperation. The Parties shall cooperate to ensure that the steps
necessary to implement this Agreement are carried out, including executing any necessary
documents reasonably necessary to achieve the purposes of this Agreement.
b. Waiver; Defenses. Each Party expressly releases, waives and relinquishes
and forever discharges the other Parties from all claims, demands, actions, liabilities and causes
of action, of every nature and kind whatsoever, whether known or unknown, suspected or
unsuspected, asserted or unasserted, or hereafter discovered or ascertained, in law or equity, by
reason of any matter, cause or thing whatsoever, it has, may have, or will have with respect to the
Respondents' approval of the Project on September 19, 2017 and October 3, 2017, including but
not limited to all claims that were or could have been asserted in this Lawsuit. Each Party
further acknowledges and agrees that all rights under Section 1542 of the California Civil Code,
or any analogous provision or doctrine of Federal law, are expressly waived. Section 1542
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.
Each Party understands, acknowledges and agrees that this Agreement constitutes a complete
and sufficient defense barring any such claim, and the Parties can rely upon this Agreement as a
complete defense. However, the waiver and relinquishment of claims and rights set forth in this
paragraph do not appl,y to any action to enforce this Agreement.
Los Verdes One Avila Ranch, LLC
Los Verdes Two Andrew Mangano
City of San Luis Obispo Preserve the SLO Life -Buckley Road
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b. This Agreement does not constitute a commitment on the part of the City
to any particular prgject. The City has no legal obligation to proceed with any improvement
unless and until the City determines that adequate environmental review, if required. has been
completed under CEQA. The City retains the absolute and sole discretion to design and modir
any improvements as may, in its sole discretion, be necessary to comply with CEQA.
8. Miscellaneous Provisions:
a. Cooperalion. The Parties shall cooperate to ensure that the step_
necessary to implement this Agreement arc carried out. including executing any necessar_
documents reasonably necessary to achieve the purposes of this Agreement.
b. Waiver: Deferiw.v. Each Party expressly releases, waives and relinquishes
and forever discharges the other Parties from all claims, demands, actions, liabilities and causes
of action, of every nature and kind whatsoever, whether known or unknown, suspected or
unsuspected, asserted or unasserted, or hereafter discovered or ascertained, in law or equity, by
reason of anv matter, cause or thing whatsoever, it has. may have, or will have with respect to the
Respondents' approval of the Project on September 19, 2017 and October 3, 2017, including but
not limited to all claims that were or could have been asserted in this Lawsuit. Each Part%
further acknowledges and agrees that all rights under Section 1542 of the California Civil Code,
or any analogous provision or doctrine of Federal law, are expressly waived. Section 1542
nrovidc:;:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING TIIE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVL MKI'4ERIALi_Y AFFECTED HIS
OR HER SETTLEMENT WITH TI IE DEBTOR.
Each Party understands. acknowledges and agrees that this Agreement constitutes a complete
and sufficient defense barring any such claim, and the Parties can rely upon this Agreement as a
complete defense. However, the waiver and relinquishment of claims and ' is set forth in this
paikgraph do not a�pply7 to any action to enforce this Agreement.
Los Verdes One Avila Ranch. LLC
Los Verdes Two _ Andrew Mangano,
City of San Luis Obispo _ Preserve the SLO Life -Buckley Road
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lt, This Agr'eeoze it do,:-, not consthwe ii commilmetit alit the part or the C.'it -
to any IM176 ;ulttt project. The City has lair legal ohligatirm in proceed wilh ally inilwovemclu
unla:tis artal M16.1 tltc City cla;tuniihics than adequatc efi irunitientiil mview, it required, has been
completed wider C rtQA- Zile City reiuim (lie ahsolme and sole discretion to design and modify
,uiy i m 1) ro vemci i is as nta:y. iit its sole- aliscre, Iion, be Iicccsmavy to. coil 11)1v ►vith CCQA.
S. ,tiliseellancous Provisiuita:
il. Cnwivi-atiem- The Palrtiev simll cooperaite to msuf'a that the stairs
necessary to implCriiem this AffeentBnt ara: catr!•ivat [rut, including eXCCutiltg ally neci'ssary
docoIiia:n(a re. iso j i a 1) 1 y Iiccvssary to aeItivve the lairposes of this AgreoInc riI,
1). Caelt P'sriy c ilressly rx:Icitses, waives aunt re inquisitcs
and rorever discharges tha: other NlrtiCS f %im all chiini;. dwiam.1s, actions, l[aliiltfr4, atld c:ttrscti
of action, of [.very Itat tire and kind ►vIrutsoe%cr. ► hvo;lier hito►vlt rir unknown, sospecled or
unsits 1-wcted. msscrta�d or ninis-se-vat- or lic feaf er di!.i+. vcrcd. or asccrtaincd, in law of ccitlrty. by
rca-mfI oI'urty ittill (er, czrtise or thing ►t-lraIsc ever. it It- is-. Imly ImA-V. or will have ►vilh re";1xa:I to the
R4spumicnis' approval or the Project on tieltlember 19. 2017 and OCUPber ;, 2017. ilta:ludiltg hur
not limited to all claims that were or eovid have hcun assa:ried in ibis Lawstiil. Fach Party
further acknowledges and AgmA that all rights under SCelk)tt 1542 of the C'alit'vruia Civil Caick%
or ati+; onaiogous provision or clocirirte of Fetler,rf lu», are expr.!%st} Section 1342
provides:
A GENERAL RELEASE DOES NOT I:XT N'D 11) CLAIMS WHICH ` 14E
CREDITOR DOES 'NOT KNOW OR SU'SPEC T TO EXIST UN HIS OR IiER
FAVOR AT THE- TINIF OF l'XFCUTli\:G THE RLLFASr, WHICH IF
KNOWN BY IJ M OR HER MUST IJAVL z4IAJ'L•IMALLY AFFECM) HIS
OR HER SrI TLENIE.N1 WJTIA THE DEBTOR.
heft tarty Understands. ackno►vledgp s and agrees that this Agreement cnnsiiifflOS ,t c;oritliletc:
and sufficient defense barring z1113' such clsint. And [lie Ptuiies (':rit rtli' upon this Agreement its a
complete defense. I lowevcr, the waiver and relinquishment ai' claimS atu! r_2 is set forth in this
paragraph do not apply to any action to enforce this ,Agreement.
Los Verdes One r� Avila Ranch, LLC
.r
Los Verdes Two —" Andrew Nlangano
City of San Luis Obispo T Preserve the SLO Life -Buckley Road __
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b. This Agreement does not constitute a commitment on the part of the City
to any particular project. The City has no legal obligation to proceed with any improvement
--unless and until the City determines that adequate environmental review, if required, has been
completed under CEQA. The City retains the absolute and sole -discretion to,design. and modify
any improvements as may, in its sole discretion, be necessary to comply with CEQA.
8. Miscellaneous Provisions:
a. Cooperation. The Parties shall cooperate to ensure that the steps
necessary to implement this .Agreement are carried: out, including executing any necessary
documents reasonably necessary to achieve the purposes of this Agreement.
b. Waiver; Defenses. Each Party expressly releases, waives and relinquishes
and forever discharges the other Parties from all claims, demands, actions, liabilities ,and causes
of action, of every nature and kind whatsoever, whether known or unknown, suspected or
unsuspected, asserted or unasserted, or hereafter discovered or ascertained, in law or equity, by
reason of any matter, cause or thing whatsoever, it has, may have, or will have with respect to the
Respondents' approval of the Project on September 19, 2017 and October 3, 2017, including but
not limited to all claims that were or could have, been asserted in this Laivsuit. Each Party
further acknowledges and agrees that all rights under Section 1542 of the California Civil Code,
or any analogous provision or doctrine of Fcdcr2l law, arc expressly waived: Section 1542
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT -KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECI"ED HIS
-OR HER SETTLEMENT WITH THE DEBTOR.
Each Party understands, acknowledges and agrees that this Agreement constitutes a complete
and sufficient defense baning any such claim, and the Parties can rely upon this Agreement as a
complete defense. However, the waiver and relinquishment of claims and ijahts set forth in this
paragraph do not apply to any action to enforce this Agreement.
Los Verdes One Avila Ranch, LLC
Los Verdes Two Andrew Mangano
City of San Luis Obispo- Preserve the SLO Life -Buckley Road
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b. This Agreement does not constitute a commitment on the part of the City
to any particular project. The City has no legal obligation to proceed with any improvement
unless and until the City determines that adequate environmental review, if required, has been
completed under CEQA. The City retains the absolute and sole discretion to design and modify
any improvements as may, in its sole discretion, be necessary to comply with CEQA.
8. Miscellaneous Provisions:
a. Cooperation. The Parties shall cooperate to ensure that the steps
necessary to implement this Agreement are carried out, including executing any necessary
document.-. reasonably necessary to achieve the purposes of this Agreement.
b. Wrtiver. Defenses. Each Party expressly releases, waives and relinquishes
and forever discharges the other Parties from all claims, demands, actions, liabilities and causes
of action, of every nature and hind whatsoever, whether known or unknown, suspected or
unsuspected. asserted or unasserted, or hereafter discovered or ascertained, in law or equity, by
reason of any matter, cause or thing whatsoever, it has, may have, or will have with respect to the
Respondents' approval of the Project on September 19, 2017 and October 3, 2017, including but
not limited to all claims that were or could have been asserted in this Lawsuit. Each Party
further acknowledges and agrees that all rights under Section 1542 of the California Civil Code,
or any analogous provision or doctrine of Federal law, are expressly waived. Section 1542
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR I IER SETTLEMENT WITH THE DEBTOR.
Each Party understands, acknowledges and agrees that this Agreement constitutes a complete
and sufficient defense barring any such claim, and the Parties can rely upon this Agreement as a
complete defense. However, the waiver and relinquishment of claims and i is set forth in this
paragraph do not apply to any action to enforce this Agreement.
Los Verdes One Avila Ranch, LLC
Los Verdes Two Andrew Mangano
City of San Luis Obispo- Preserve the SLO Life -Buckley Road_ "-
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C. Headings. The titles and headings of the various paragraphs of this
Agreement are intended solely for convenience of reference and they shall not be used to
explain, limit, or extend the meaning of any part of the Agreement.
d. Modifications. This Agreement may not be altered or modified except in
writing by a document signed by all Parties.
e. Governing Law; Venue. This Agreement shall be governed by and
construed according to the laws of the State of California with venue in San Luis Obispo County.
f. Run with the Land. Except as otherwise specifically set forth herein, this
Agreement shall be binding on and inure to the benefit of the heirs, successors, assignees and
transferees of the Parties. The obligations set forth in this agreement shall be enforceable against
any such heirs/assignees/transferees/grantees. The Parties recognize that, under applicable law, the
permits and entitlements granted to the Project, though granted to Respondents and/or Real Parties,
"run with the land." This Agreement, likewise, is intended to "run with the land" with respect to the
Project. The Parties shall promptly execute any document requested by another Party to confirm the
terms of this subparagraph. Real Parties warrant and agree that it will duly inform any prospective
purchaser of the Project, in whole or in part, of the terms of this Agreement and the purchaser's
obligations under this Agreement.
g. Code of Civil Procedure § 664.6. The Parties agree that this Agreement is
enforceable pursuant to California Code of Civil Procedure § 664.6 and specifically request that
the Court retain jurisdiction over the Lawsuit, this Agreement, and the Parties for the purpose to
enforce the Agreement until performance in full of the terms of the Agreement.
h. Entire Agreement. This Agreement contains all of the representations and
the entire understanding and Agreement among the Parties with respect to the matters described
in the Agreement. Correspondence, memoranda, and oral and written Agreements that
originated before the date of this Agreement are replaced in total by this Agreement.
i. Authority; Warranties. The individuals signing this 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.
j. Severability. The invalidity of any portion of this Agreement shall not
invalidate the remainder. If any term, provision, covenant or condition of this Agreement is held
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by a court of competent jurisdiction to be invalid, void or unenforceable, the Parties shall amend
this Agreement and/or take other action necessary to achieve the intent of this Agreement in a
manner consistent with the ruling of the court.
k. Interpretation. This Agreement shall be deemed to have been drafted
equally by the Parties, and shall not be interpreted for or against any Party by reason of the
alleged authorship of any provisions. The Parties understand and agree that the general rule that
ambiguities are to be construed against the drafter shall not apply to this Agreement. Each Party
acknowledges that it is represented by counsel, and has had the benefit of advice from counsel
with respect to this Agreement.
1. Remedies. The Parties agree that remedies for breach of this Agreement
are limited to damages according to proof or specific performance. In any action to enforce this
Agreement, the prevailing Party shall recover its reasonable attorneys' fees and costs. The
Parties agree to mediate any dispute or claim arising between them out of this Agreement before
resorting to arbitration or court action. Mediation fees, if any shall be divided equally among the
parties involved. If any party commences litigation without first attempting to resolve the matter
through mediation or refuses to mediate after a request has been made, then the party shall not be
entitled to recover attorney's fees. Under no circumstances shall Petitioners request or be entitled
to re -institute the Lawsuit. Any enforcement of this Agreement may be sought against only the
Party or Parties claimed to be in breach of the Agreement, as well as their heirs, successors,
assignees and transferees of the Parties.
M. Notice. All notices required under this Agreement shall be in writing, and
may be given either personally or by registered or certified mail (return receipt requested) or
facsimile, with a copy by email. Any Party may at any time, by giving ten (10) 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:
To City of San Luis Obispo: Derek Johnson, City Manager
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Fax: (805) 781-7109
Email: djohnson@slocity.org
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With Copy to: Christine Dietrick, City Attorney
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Fax: (805) 781-7109
Email: cdietrick@slocity.org
To Real Parties Andrew Mangano
3596 Broad Street, Suite 104
San Luis Obispo, CA 93401
Fax: 805-242-9221
Email: andymangano7@gmail.com
With Copies to: Leslie Walker
Thomas Law Group
455 Capitol Mall, Suite 801
Sacramento, CA 995814
Fax: (916) 737-5858
Email: lwalker@thomaslaw.com
Stephen Peck
2455 Greenwood Avenue
Morro Bay, CA 93442
Fax: (916) 737-5858
Email: Steve@PeckPlanning.com
To Preserve the SLO Life -Buckley Rd. J.K.Waldsmith, DVM
4850 Davenport Creek Road
San Luis Obispo, CA. 93401
Fax: (805) 549-9237
Email: drjwaldsmith@theequinecenter.com
To Los Verdes One: Crystal Rost
Los Verdes Park One
21 Santa Rosa Street
Suite # 100
San Luis Obispo, CA 93405
Fax: 805 543 3083
Email: crystal@farrellsmyth.com
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To Los Verdes Two: Jacqueline Whitesides
Los Verdes Park 2
9 '/ Perla Lane
San Luis Obispo, CA 93401
Fax/Call First: 805 541 1267
Emai):jq)vp2@ginuil.com
Janet Polk
Los Verdes Park 2
Email: Janct2805(u?aol.com
With Copies to: William P. Parkin
Wittwer Parkin LLP
147 S. River St., Suite 221
Santa Cruz, CA 95060
Fax: (831) 429-4057
Entail: wparkin@wittwerp:irkin.com
n. Execution. This Agreement may be executed in counterparts. The
counterparts shall together comprise a single Agreement.
IN WITNESS WHEREOF, (lie Parties have executed this Agreement as of the Effective Datc.
Dated: l .2018 PRESERVE THE SLO UFE BUCKLEY ROAD
By.
K, Borland
Its: Member and representative
By:
James Waldsmith
lts: Member and representative
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To Los Verdes Two: Jacqueline Whitesides
Los Verdes Park 2
9 '/z Perla Lane
San Luis Obispo, CA 93401
Fax/Call First: 805 541 1267
Email: jglvp2@gmail.com
Janet Polk
Los Verdes Park 2
Email: Janet2805@aol.com
With Copies to: William P. Parkin
Wittwer Parkin LLP
147 S. River St., Suite 221
Santa Cruz, CA 95060
Fax: (831) 429-4057
Email: wparkin@wittwerparkin.com
n. Execution. This Agreement may be executed in counterparts. The
counterparts shall together comprise a single Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Dated: , 2018 PRESERVE THE SLO LIFE-BUCKLEY ROAD
I:
Kathy Borland
Its: Mem n r r e ative
By:
Tember
Waldsmith
Its: and representative
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2018 LOS VERDES PARK UNIT 1 HOMEOWNERS
ASSOCIATION INC-
Lisa Schott
as: President
Bob Barker - -
Its: Vice President
Dated: _2018 LOS VE RIAN PARK i(.JNIT2) HOMEOWNERS
ASSOCIATION INC.
David Bunch
its: Fresident
By: --
Sharon Gammill
Its: Vice President
Dated: 1]22-_.2018 CITY OF SAN LUIS OBISPO, a California Municipal
Corporation
Dated: 122 .2018 AVil. rz
LLC
ndre►�+ Mang: n r
Its: Managing Member
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Dated: l [ 9 , 2018
Dated: , 2018
Dated: .2018
Dated:
LOS VERDES PARK UNIT 1 HOMEOWNERS
ASSOCIATION INC.
By:
Lisa Schott
Its: President' J
By: 0�
Bob Barker
Its: Vice President
LOS VERDES PARK (UNIT 2) HOMEOWNERS
ASSOCIATION INC.
David Bunch
Its: President
By:
Sharon Gammill
Its: Vice President
CITY OF SAN LUIS OBISPO, a California Municipal
Corporation
By:
Its:
2018 AVILA RANCH, LLC
By:
Andrew Mangano
Its: Managing Member
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Dated: _ _ . 20IS LOS VERDES PARK UNIT I HONILO HERS
ASSOCIATION INC.
By:
Lisa Scholt
Its: President
By: _
Bob Barker
its: Vice President
Dated: 201R LOS VERDES PARK (UNIT 2) HOMEOWNERS
AS,suC',-tQN INC_
By:
David I.;nuc4�
Its: I'r'r ;tiidrnl
Sharon Uarnm4P;
Its: Viec President
Dated: I Z?/ �_ 2D1Z; CITY OF SAN LUIS OBISPO, a Calillornia Municipal
Corporation
BY:.
Its: — —� — MAA/ ___
Dated: } 1.-2_. 20 l8 AV II..!LLC
7 r:irew rvtullt
Its: Nlanaging'Member
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Dated: =��, 2018
Approved as to form:
Dated: % o? , 2018
CITY OF SAN LUIS O SPO CITY ATTORNEY
Vineietrick
Attorneys for Respondent CITY OF SAN LUIS
OBISPO, a Municipal Corporation
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