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HomeMy WebLinkAbout20180508_SettlementAgreement_NewHeritage_TwinCreeksSETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS This Settlement Agreement ("Agreement") is entered into this f, duty of May. 2018 (the "Rffec Live Da to") by the City of San Luis Obispo, a municipal corporation and charter city ("City") and New Heritage Fainily Limited Partnership, a foreign limited partnership ("New Heritage") (City ,and New Heritage are collectively referred to herein as the "Parties"). Recitals WHEREAS, on February 5, 2018, the City's Architectural Review Committee approved New Heritage's Twin Creeks mixed use project ("Twin Creeks") which consists of 94 apartment units, 2,463 square feet of indoor residential amenity space, outdoor residential amenity space, and 3,488 square feet of commercial space; and WHEREAS, on February 13, 2018, New Heritage appealed the Architectural Review Committee's approval of "Twin Creeks due to the inclusion of Condition of Approval 31.d) (the "Condition"), which reads: Prior to issuance of building permits, the applicant shall pay City the documented costs for reimbursement of the frontage improvements that were completed along Orcutt Road adjacent to the property. Such costs include City Transportation Impact Fees that were used to advance these public improvements required for the project. The final amount will be subject to the approval of the Public Works Director. WHEREAS, New Heritage alleges that the Condition is an illegal exaction under California law; and WHEREAS, the City disagrees with New Heritage's analysis of the Condition; and WHEREAS, by this Settlement Agreement, the Parties desire to resolve the dispute by agreeing to all the specific amourits payable by New Heritage to the City under Condition 31. Agreement NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows: A. Recitals. The recitals above are true and correct and are incorporated herein by this reference. B. _Condition 31. Subject to the terns and conditions hereof, Condition 31 shall be satisfied by payment to the City, prior to the issuance of building permits, as follows: Inilials; �� / a) TR/mm-1 Broad & South Improvements: $51,557.31 b) TR/mm-2 Broad & Capitolio Improvements: New Heritage shall pay the Citywide traffic impact fee at the rate in effect at the time of building permit issuance. c) TR/mm-4 Orcutt Road/Laurel Lane Improvements: $10,746.75 d) TWmm-4, TR/mm-5 Orcutt Road Improvements: $256,290 C. Dismissal of Appeal. New Heritage hereby dismisses its appeal of the approval of the Twin Creeks project. D. New Heritage hereby, on behalf of itself and its partners, successors -in -interest and assigns, irrevocably and unconditionally release and discharge the City from any and all lawsuits, claims, actions, demands or other legal responsibilities of any kind regarding City's imposition of the Condition. New Heritage expressly acknowledges that this Release includes any and all claims that Plaintiffs asserted or could have asserted based upon or related to the Condition. E. Release of Unknown Claims. New Heritage hereby waives any and all rights or benefits that any of them may have under Section 1542 of the Civil Code of the State of California, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDI"fOR 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.` New Heritage acknowledges that it understands the effects of this waiver pursuant to Civil Code Section 1542, and that it is represented and has been advised of this release by its counsel. F. Miscellaneous The Parties represent and warrant that they understand that they have the right to be represented by counsel and expressly acknowledge that they have had the opportunity to review this Agreement with their chosen counsel. The Parties represent that they fully understand the terns of this Agreement and agree to be bound by its contents. The Parties further represent that they have full authority to enter this Agreement and do so of their own accord. 2. In any action or proceeding to enforce or interpret the terms of this Agreement or otherwise arising out of the Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees. 3. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter set forth herein. 2 Initials- 1 4. It is expressly understood that this Agreement is in full accord and satisfaction of disputed claims, and this Agreement will not be deemed an admission of liability or responsibility of either Party hereto for any purpose. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute one document to be effective as of the Effective Date. Signatures that have been transmitted by facsimile or electronic mail shall be deemed to be original signatures for the purposes of this Agreement. Photocopies of this Agreement shall have the same effect as the original and may be used in lieu of the original for any purpose. [Signatures on following page.] Initials: � � / IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date indicated below. New Heritage Family Limited Partnership City of San Luis Obispo 01 Joseph Collins, encral Partner 1-leidi H non, May r Send all notices herein to: Attest: Joseph Collins New Heritage Family Limited Partnership 3 Ocean Bluff Newport Coast, CA 92657 With a copy to: Timothy J. Carmel Carmel & Naccasha, LLP 1410 Marsh Street San Luis Obispo, CA 93401 Teresa Purrington, City Clcrk Send all notices herein to: City Attorney 990 Palm Street San Luis Obispo, CA 93401 r 1 Initials: