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HomeMy WebLinkAboutOrdinance 1645 (Baypoint Lagoons Development Agr.)CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1645 entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT FOR BAYPOINT LAGOONS" is a true and correct copy of an ordinance of said City and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 15th day of MARCH , 1993, published as required by City Charter in the MARIN INDEPENDENT JOURNAL , a newspaper published in the City of San Rafael and passed and adopted as an ordinance of said City at a REGULAR meeting of the City Council of said City held on the 5th day of APRIL , 1993, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Breiner WITNESS my hand and the official seal of the City of San Rafael this 6th day of APRIL , 1993. JEANNECM,, LEONCINI, City Clerk ORDINANCE NO. 1645 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT FOR BAYPOINT LAGOONS THE COUNCIL OF THE CITY OF SAN RAFAEL DO ORDAIN AS FOLLOWS: DIVISION 1. Findinas. A. California Government Code sections 65864 - 65869.5 authorizes cities to enter into binding development agreements as therein provided. B. Sidney Hendricks, Dennis Horne and Spinnaker Point Development, Inc., a California Corporation (collectively "Owner") has requested that the City of San Rafael (the "City") enter into a "Development Agreement with respect to the real property (the "Property") commonly known as Bay Point Lagoons which is more particularly described in Exhibit "H" to the said Development Agreement" and proceedings have been taken in accordance with the City's rules and regulations for the consideration of development agreements. C. Owner has the requisite legal interest in the property to enable the City to enter into the Development Agreement with owner. D. The Planning Commission of the City has reviewed the proposed Development Agreement and has held a public hearing on the same on February 23, 1993. The Planning Commission voted unanimously to recommend approval of the Development Agreement by the City Council. E. The City Council of the City of San Rafael has held public hearings on the proposed Development Agreement, and notice of intention to consider adoption of the Development Agreement has been given as required by law. F. The City Council finds that the Development Agreement is consistent with the General Plan of the City which is currently in effect and with the approved Master Plan for the property. G,,. The City Council further f inds that each and every one of the facts and statements set forth in the Recitals of the 1 ORIGI-NAI 16 7 -- Development Agreement are true and correct. The text of the proposed Development Agreement is attached to the minutes of the Planning Commission of February 23, 1993, and is filed in the office of the City Clerk of the City of San Rafael and is available for public review therein. Said facts and statements are hereby incorporated in this ordinance by this reference as fully and completely as if the same had been set forth at length herein. DIVISION 2. Approval. The City Council of the City of San Rafael approves the Development Agreement for Bay Point Lagoons, a copy of which is on file in the office of the City Clerk, and the Mayor is authorized to execute and enter into said Development Agreement on behalf of the City. DIVISION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid. DIVISION 4. This Ordinance shall be published once in full before its final passage in a newspaper of general circulation, published and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. ATTEST: J NE M. LEONCI, Ci y Clerk 2 0-1-1ALBZRT R IFMayor-/ The foregoing Charter Ordinance No. 1645 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael held on the 15th day of March, 1993, and ordered passed to print by the following vote to wit: AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 5th day of April , 1993. JE "`C M. LE/OYINCIMI, City Clerk 3 EXHIBIT "A" RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO: City of San Rafael Planning Dept. 1400 Fifth Avenue San Rafael, California 94901 Attn: Mr. Robert Pendoley DEVELOPMENT AGREEMENT (Baypoint Lagoons) This Development Agreement is entered into by and between Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., a California corporation (collectively "Owner"), and the City of San Rafael ("the City"), as of the 15th day of March , 1993. RECITALS A. The State Development Agreement Law authorizes the City to enter into development agreements in connection with the development of real property within its jurisdiction by persons with a requisite legal or equitable interest in the real property which is the subject of a development agreement. The State Development Agreement Law also authorizes the City to enact, by resolution or ordinance, procedures or requirements for the consideration of development agreements, to meet the goals of the State Development Agreement Law, to conserve resources, reduce development costs to the consumer and encourage investment in and a commitment to comprehensive planning to maximize the efficient utilization of resources at the least economic cost to the general public. B. The City has enacted City Council Resolution number 6089 establishing the procedures and requirement for the consideration of this Agreement thereunder pursuant to the State Development Agreement Law. C. The City has determined that the Project is a development for which a development agreement is appropriate in order to achieve the goals and objectives of the City's land use planning policies and to provide appropriate assurances to Owner regarding its ability to complete the Project. This will in turn eliminate uncertainty in planning for and secure orderly development of the Project, assure progressive installation of necessary improvements and provision for public services appropriate to each stage of development of the Project, and -1- COPY other Ordinances or in order to make a project approval consistent with the City's laws or procedures. 1.6 Existinq Approvals. Those Approvals for the Project obtained or enacted by the City as of the date hereof. The following specific approvals by Owner constitute the Existing Approvals: (a) Zoning Approvals (Ordinance No. 1562, adopted May 1, 1989) (attached as Exhibit A); (b) Environmental and Design Review for Phase I, Permit No. E.D. 88-101 (attached as Exhibit B); (c) Use Permit for Phase I, U.P. No. 88-100 (attached as Exhibit C); (d) Final Subdivision Map for Phase I, F.S. No. 89-3 (attached as Exhibit D); (e) Environmental and Design Review for Phase II, Permit No. E.D. 91-15 (attached as Exhibit E); (f) Use Permit for Phase II, U.P. No. 91-9 (attached as Exhibit F); (g) Tentative Subdivision Map for Phase II, T.S. No. 91-2 (attached as Exhibit G); (h) Priority Projects Procedure approval for Spinnaker on the Bay Phase II, P.P.P. No. 91-5. 1.7 Existinq Ordinances. The Ordinances and Development Policies of the City that were in effect on April 1, 1991. 1.8 Ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City of San Rafael governing the permitted uses of land, governing density, and governing design, improvement and construction standards and specifications, applicable to the development of the Property. 1.9 person. Any person, partnership, corporation, municipal corporation, governmental board, body, agency or representative, or other form of organization or entity. 1.10 Prolect. The residential development and associated amenities, and on- and off-site improvements, contemplated by or embodied within the Existing Approvals for the -3- 3.3 Below Market Rate Units. The parties agree that Owner is required to construct 48 below market rate units ("BMR") in Phases I and II of the Project, which includes the 5 BMR units reflected in the Agreement to Provide Below Market Housing dated April 1989. The City agrees that construction of these 48 BMR units may be deferred until only 96 units, whether BMR or market rate, remain unbuilt in Phase I and Phase II of the Project. At that time, no further occupancy permits will be issued by the City for any market rate unit(s) except to the extent that HMR occupancy permits have been issued by the City. In other words, for each BMR occupancy permit issued by the City, Owner may apply for one market rate occupancy permit. Owner agrees that it will adopt and implement a procedure whereby City employees are granted preference in purchasing units in the Project. 3.4 Transfer of BMR Units. If Owner should sell any or all of the 48 BMR units in the Project, or the property approved for construction of such HMR units, to a non-profit housing provider acceptable to the City, the construction of the BMR units by such non-profit organization shall be counted as partial performance of Owner's obligation to construct BMR units in the Project. The City shall give Owner credit for one BMR unit against its 48 BMR unit requirement for each occupancy permit issued to the non-profit organization for a BMR unit. The City agrees to fast track all planning applications required to permit the non-profit organization referred to herein to proceed with construction of BMR units on that portion of the Project where the BMR units are approved for siting. A sale by Owner of all or part of the 48 BMR units referenced herein shall not relieve Owner of any of the restrictions or obligations on the portion of the Project not sold to the non -project organization nor of the obligation to construct all 48 BMR units. Owner agrees that the City is entitled to compel specific performance from Owner of the obligations relating to the construction of said 48 BMR units. If Owner should enter into a sale of all or part of the 48 BMR units as stated above, the City shall place no additional restrictions or obligations on the portion of the Project retained by Owner based solely on the sale of the BMR units to the non-profit organization and its development of those BMR units. 3.5 Applicable Ordinances and Approvals. The Ordinances which shall govern the development of the Property hereunder and all subsequent Approvals with respect thereto, including the permitted uses of the Property and the density, design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Ordinances. No subsequent change in general plan, zoning ordinance, or other plan, policy or procedure enacted by the City subsequent to the execution of this Agreement shall apply to, prohibit, or modify the terms of this Agreement during the term of this Agreement. Nothing herein, however, shall prevent the City, in subsequent actions applicable to the Property, from -5- all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement. 4.5 Governina Law. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. 4.6 Specific Performance. The parties acknowledge that it is and will be impossible to measure in money any or all damages which may result by reason of and failure on the part of a party to perform any or all of its obligations under this Agreement. If, therefore, the City or Owner, or any of their respective successors or assigns shall institute any action or proceeding to enforce the provisions of this Agreement, the party against whom such action or proceeding is brought shall and hereby does waive the claim or defense that such person or entity has an adequate remedy at law, and such others against whom such action or proceeding is brought shall not urge or be heard to urge in any such action or proceeding the claim or defense that such remedy at law exists. 4.7 Attornevs' Fees. Should any party hereto be required to commence litigation against any other party for breach of this Development Agreement or to otherwise enforce any terms, conditions, or promises set forth herein, then the prevailing party in said litigation shall be entitled to recover, in addition to any other damages awarded, said party's reasonable attorneys' fees, costs, and expenses incurred in said litigation. 4.8 Bindina Effect. This Development Agreement shall bind all heirs, successors, and assigns of the parties hereto, and each of them. It shall inure to the benefit of each party hereto, their divisions, representatives, assigns, agents, officers, directors, and employees. 4.9 Seoarate Counterparts. For convenience, this Agreement may be executed and acknowledged in separate counterparts which, when attached to this Agreement, shall constitute this as one complete Agreement. -7- The parties below named have executed this Development Agreement as of the date written below. r APPROVED AS TO FORM AND CONTENT: �� fl BREKHUS, WILLIAMS, WESTER & HALL B: eter B. Brekhus DI;ICKS Attorneys for Plaintiffs Dated: ,�DENNIS HORNE Dated: 3 q 3 SPINNAKE DINT DEVELOPMENT Nine . -7-'�do!� Its: Dated: -8- State of California ) County of Marin ) On 'M, �3, 199.3 before me, A. M. MARCOTTE a Not y Public in and for the said County and State, personally appeared F !1n/F personally known to M (or proved to me on the basis of satisfactory evidence) to be the person(a) whose name(s) is/a-ra subscribed to the within instrument and acknowledged to me that hefshe�t� executed the same in his/ authorized capacity (-}es) , and that by his/hamt4wk signature (a.) on the instrument the person( -a), or the entity upon behalf of which the person(s) acted, executed the instrument. , WITNESS my hand and official seal. 2 . �_ C� 7TH A. M. MARCO��l��T`'E`, NOTARY PUBLIC My commission expires 11/17/95 State of California County of Marin OFFICIAL SEAL A. M. MARCOTTE Notary pubac-Cantornla m MARIN COUNTY My commlWon Expires . November 17, 1995 i On May 6, 1993 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared SIDNEY HENDRICKS genal= l�A=fie== (or proved to me on the basis of satisfactory evidence) to be the person() whose name(a) is/ate subscribed to the within instrument and acknowledged to me that he/she/=they executed the same in his/ her��ed�r authorized capacity (ins) , and that by his/hery# eir signature (=W) on the instrument the person(s-), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. A. M. MARCO TE, NOTARY PUBLIC My commission expires 11/17/95 OFFICIAL SEAL "'" A. M. MARCOTTE Notary Public-Callfomla ; MARIN COUNTY My Commission Expires . November 17, 1995 The parties below named have executed this Development Agreement as of the date written below. APPROVED AS TO FORM AND CONTENT: By: A' ' -s-/rtJ�� r'l ll Gary T. Ragghianti City Attorney CITY OF SAN RAFAEL i 1 Albert J,e Boro, Mayor Dated, _ _.'/ N f 1 Attest: c` By:k k Jeanne Leoncini, City Clerk Dated: 3 o 3 I State of California ) County of Marin ) On April 30, 1993 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared Albert J. Boro, Mavor of the Citv of San Rafael personally known to me (or prz-:vl te—ma •r. the Lasic reff c&Vc-ftetery a,. • ne ��) to be the person() whose name(e) is/awe subscribed to the within instrument and acknowledged to me that he/sheithey executed the same in his/ har'LL authorized capacity Iree) , and that by his ritheir signatures) on the instrument the person(s), or the entity upon behalf of which the person( -a) acted, executed the instrument. --------------------- WITNESS -- ------ ---------WITNESS my hand and official seal. OFFICIAL SEAL ' A. M. MARCOTTE ' Notary Public-Callfornla MARIN COUNTY �ay�7� ' My Commlalon Expires A. Mi 4CTZTL E, NOTARY PUBLIC November 17. 1995 ` My Commission expires 11/17/95 4007524.4 - 10 - SETTLEMENT AGREEMENT AND RELEASE 1. PARTIES o_ 1.1 This Settlement Agreement and Release is entered into as of r _, 1392 by and among Sidney Hendricks, Dennis Horne, Spinnaker Point Development, Inc. (collectively "plaintiffs"), the City of San Rafael ("the City"), and the San Rafael Redevelopment Agency, (the Redevelopment Agency") (collectively, "the Parties"). 2. LITIGATION 2.1 There presently is pending in the Superior Court of California, County of Marin, an action entitled Sidnev Hendricks. Dennis Horne. and Spinnaker Point Development, Inc. v. Fred Granae. Mudcat. Inc., Canonie Offshore. Inc.. Citv of San Rafael, San Rafael Redevelopment Aaencv, and DOES 1 throuah 200. inclusive, No. 146534, filed on or about June 22, 1990 ("the Litigation"). 2.2 In the Litigation, plaintiffs alleged that the City and/or the Redevelopment Agency and/or other defendants breached an agreement known as the 1979 Monumental Agreement, took property by inverse condemnation, and placed contaminated materials on real property within San Rafael owned by plaintiffs, previously known as Spinnaker Point Phase I and Phase II, and now known as Baypoint Lagoons Phase I and Phase II ("the Development Project"). The Parties hereto have agreed to compromise and settle any and all claims which have been or could have been asserted in the foregoing action and to settle, once and for all, all disputes and differences among them. 3. UNCONTAMINATED PROPERTY 3.1 All parties to this Settlement Agreement and Release have, or have had the opportunity, to examine the quality of the soil on the Development Project. The Parties agree that the property is currently in a safe and non -hazardous condition and is safe for the construction and erection of single family homes. Based on the information currently available to the City, the City will not hereafter, in any lawsuit or other proceeding, claim, assert, or allege that the property is contaminated or hazardous. 4. AGREEMENT OF THE PARTIES 4.1 The Parties to this Settlement Agreement and Release agree to the following: 4.2 Within thirty (30) days after the date of execution of this Settlement Agreement and Release by all parties, the City and the Redevelopment Agency shall cause to be paid to plaintiffs the sum of $137,500.00. 4.3 In accordance with current zoning, the City shall allow an increase of six additional market rate units in Phase II of the Development Project, from 130 units to 136 units, and will fast-track any needed planning applications plaintiffs must submit for that purpose. 4.4 The parties agree that plaintiffs are required to construct 48 below market rate units ("BMR") in Phases I and II of the Development Project, which include the five BMR units reflected in the Agreement to Provide Below Market Housing attached as Exhibit A. The City agrees that construction of these 48 BMR units may be deferred until only 96 units, whether BMR or market rate, remain unbuilt in Phase I and Phase II of the Development Project. At that time, no further occupancy permits will be issued by the City for any market rate unit(s) except to the extent that BMR occupancy permits have been issued by the City. In other words, for each BMR occupancy permit issued by the City, plaintiffs may apply for one market rate occupancy permit. 4.5 If plaintiffs should sell any or all of the 48 BMR units in the Development Project, or the property approved for construction of such BMR units, to a non-profit housing provider acceptable to the City, the construction of the BMR units by such non-profit organization shall be counted as partial performance of plaintiffs' obligation to construct BMR units in the Development Project. The City shall give plaintiffs credit for one BMR unit against their 48 BMR unit requirement for each occupancy permit issued to the non-profit organization for a BMR unit. The City agrees to fast track all planning applications required to permit the non-profit organization referred to herein to proceed with construction of BMR units on that portion of the Development Project where the BMR units are approved for siting. A sale by plaintiffs of all or part of the 48 BMR units referenced herein shall not relieve plaintiffs of any of the restrictions or obligations on the portion of the Development Project not sold to the non -project organization nor of the obligation to construct all 48 BMR units. Plaintiffs agree that the City is entitled to compel specific performance from plaintiffs of the obligations relating to the construction of said 48 BMR units. If plaintiffs should enter into a sale of all or part of the 48 BMR units as stated above, the City shall place no additional restrictions or obligations on the portion of the Development Project retained by plaintiffs based solely on the sale of the BMR units to the non-profit organization and its development of those BMR units. - 2 - 4.6 The parties agree to extend the Agreement To Provide Below Market Rate Housing, dated April 1989 and attached hereto as Exhibit A, until December 31, 1998. The construction of the first five of the 48 BMR units in the Development Project shall constitute construction of the five BMR units described in that Agreement to Provide Below Market Rate Housing. 4.7 Plaintiffs and the City agree to enter into the Development Agreement attached hereto as Exhibit B. 4.8 There presently is pending in the Superior Court of the State of California, County of Marin, an action entitled Peoole of the State of California v. Fred Granqe, Grange Debris Box and Wrecking ComDanv. Inc., Mudcat. Inc.. Sidnev Hendricks. Dennis Horne, dba Hendricks and Horne. Spinnaker Point Development, and DOES 1 through 100, No. 145619, filed on or about March 23, 1990. As part of its participation in the Peonle v. Granqe case on behalf of the People of the State of California, the City of San Rafael, but not the district attorney, agrees that it will cooperate with plaintiffs' defense by making City employees reasonably available as witnesses pursuant to subpoena. Further, the City agrees that it will not litigate People v. Grange in such a way as to shift liability to the plaintiffs herein from the other defendants in the Peoole v. Grange case. Finally, to the extent that the plaintiffs herein make any payment to the People of the State of California in People v. Granqe, whether by judgment, settlement, or otherwise, the City waives its right to recover any portion of that payment made by the plaintiffs herein. The City reserves its right to recover from the amounts paid by other defendants in the People v. Granqe case. 5. RELEASE 5.1 Plaintiffs Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., on their own behalf and on behalf of their respective predecessors, successors, assigns, parents, subsidiaries, divisions, affiliates, insureds, past and present general or limited partners, directors, officers, employees, attorneys, and agents, and all persons acting by, through, under or in concert with any of them, and each of them ("Releasing Parties") hereby release and forever discharge the City of San Rafael, the San Rafael Redevelopment Agency, and their current, former and future subsidiaries, divisions, affiliates (and agents, directors, officers, employees, representatives and attorneys of such subsidiaries, divisions and affiliates), agents, assigns, servants, representatives, predecessors, successors -in -interest, principals, employees, officers, directors, attorneys, and all persons acting by, through, under or in concert with any of them, and each of them ("Released Parties") from any and all suits, claims, controversies, rights, promises, liabilities, debts, damages, duties, demands, obligations, agreements, costs, expenses, - 3 - losses, liens, actions, and causes of action of every nature, character, and description in law or in equity, whether presently known or unknown, vested or contingent, suspected or unsuspected, accrued or yet to accrue, in law or in equity which they may have by reason of any matter, event, or state of fact occurring at any time prior to the date of this Release. This Release specifically includes but is not limited to: (1) a release of all past, present, and future obligations under the contract between the City of San Rafael, the San Rafael Redevelopment Agency, and Monumental Corporation dated December 31, 1979 and attached hereto as Exh. C; (2) a release of any and all claims arising from the People v. Grange litigation and/or the investigation that preceded the filing of said litigation; and (3) a release of any and all claims arising from any and all exactions, in lien fees or payments, dedication or reservation requirements, improvements, or construction requirements that were assessed or otherwise required by the City in connection with the Development Project. 5.2 The Releasing Parties agree that they will not commence, maintain, initiate, or prosecute or cause, encourage, assist, advise, or cooperate with any other person to commence, maintain, initiate, or prosecute any action, suit, proceeding, or claim before any court or administrative agency (whether state, federal or otherwise) against any Released Party arising from, concerned with, or otherwise related to, in whole or in part, any of matters discharged and released in the preceding paragraph. 5.3 In the event that at any time hereafter any Releasing Party shall commence, maintain, initiate, or prosecute, or cause, encourage, assist, advise, or cooperate with any other person to commence, maintain, initiate, or prosecute any action, suit, proceeding, or claim before any court or administrative agency (whether state, federal or otherwise) relating to any matter released herein against any Released Party, then and in such event: (a) this Release shall be a complete defense to any such suit or claim; (b) the party, person or entity commencing, maintaining, initiating or prosecuting such suit or claim shall, upon request of any Released Party immediately pay to such Released Party the amount of any money judgment entered in such action, together with all court costs imposed on, and all attorneys' fees expended by such Released Party in connection with the defense thereof; and (c) no Releasing Party may attack the legal validity or sufficiency of this Release. 6. DISMISSAL 6.1 Within ten (10) days following the execution of this Settlement Agreement and Release by all parties, plaintiffs shall dismiss the City and the Redevelopment Agency with prejudice from the Litigation and deliver to the City and the Redevelopment Agency an endorsed filed copy of the Request for Dismissal with prejudice. - 4 - 7. AUTHORITY 7.1 Each party hereto warrants that there are no liens and have been no liens, or claims of liens, or assignments in law or in equity, or otherwise, of or against claims or causes of action hereby released by said party and that each is a sole owner of the claims released by said party. 7.2 Furthermore, each party represents and warrants that he or it is legally competent to execute this Settlement Agreement and Release and accepts full responsibility therefor. Each person executing this Settlement Agreement and Release on behalf of a corporation or government entity represents and warrants that he or she has the power and authority to execute this Settlement Agreement and Release on behalf of the entity that he or she represents and that this Settlement Agreement and Release has been duly authorized by the entity. 8. NO ADMISSION 8.1 This Settlement Agreement and Release is the result of the compromise of disputed claims by the Parties, fully and finally settles all claims between the Parties to the Litigation, and is intended to buy peace and to prevent any further involvement in this dispute. Neither the payment of any consideration hereunder or anything contained in this Agreement shall be interpreted or construed to be an admission on the part of, nor to the prejudice of, any person or party named herein, and each such party or person hereto expressly denies any and all liabilities associated with or related to said litigation and claims described herein. 9. WAIVER 9.1 Each party hereto expressly waives all rights and benefits available under section 1542 of the Civil Code of the State of California which 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. 10. FINAL SETTLEMENT 10.1 The Parties understand and agree that this Settlement Agreement and Release shall act as a full and final release of all claims, known or unknown, whether or not asserted, arising from the above-mentioned dispute; except those specifically arising from this Settlement Agreement and Release with its attachments. - 5 - 10.2 Each party fully understands that if the facts in respect to which this Settlement Agreement and Release is executed are found hereafter to be different than facts now believed by any party described herein to be true, each party expressly accepts and assumes the risks of such possible difference in facts and agrees that this Settlement Agreement and Release shall remain effective, notwithstanding such differences. 11. NO INDUCEMENT 11.1 The Parties hereto, individually and collectively, declare and represent that no promise, inducement or other agreement not expressly contained herein has been made and that this Settlement Agreement and Release, with its attachments, contains the entire agreement between the parties and that the terms of this Settlement Agreement and Release are contractual and not recitals only. 12. BINDING EFFECT 12.1 This Settlement Agreement and Release shall bind all heirs, successors, and assigns of the parties hereto, and each of them. It shall inure to the benefit of each party hereto, their divisions, representatives, assigns, agents, officers, directors, and employees. 13. FURTHER ASSURANCES 13.1 To the extent that any documents are required to be executed by any of the parties to effectuate this Settlement Agreement and Release, each party hereto agrees to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement. 14. REPRESENTATION 14.1 The Parties represent and acknowledge that each of them has been represented by counsel with respect to this Settlement Agreement and Release and all matters covered by or related to such Agreement. Each party has been fully advised with respect to all rights which are affected by this Agreement, and each party has authorized and directed their respective attorneys to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement. 15. NO MODIFICATION 15.1 This Settlement Agreement and Release, with its attachments, contains the entire agreement between the Parties and may not be altered, amended, or modified in any respect, except by a writing duly executed by the party to be charged. All prior agreements, understandings, oral agreements and writings concerning the settlement of the litigation are expressly superseded hereby and are of no further force or effect. 16. ATTORNEYS' FEES 16.1 Should any party hereto be required to commence litigation against any other party for breach of this Settlement Agreement and Release or to otherwise enforce any terms, conditions, or promises set forth herein, then the prevailing party in said litigation shall be entitled to recover, in addition to any other damages awarded, said party's reasonable attorneys' fees, costs, and expenses incurred in said litigation. 17. PARAGRAPH HEADINGS 17.1 Paragraph headings are used herein for convenience only and shall have no force or effect in the interpretation or construction of this Settlement Agreement and Release. 18. EXECUTION IN COUNTERPARTS 18.1 This Settlement Agreement and Release may be executed in counterparts, and when so executed, all counterparts combined shall constitute the Settlement Agreement and Release. 19. VALIDITY OF AGREEMENT 19.1 If any term, provision, or condition of this Settlement Agreement and Release is determined by a court of competent jurisdiction to be invalid, void, or unenforceable, then the remainder of this Settlement Agreement and Release shall remain in full force and effect and shall in no way be affected, impaired, or invalidated by such determination. 20. NEGOTIATION AND DRAFTING 20.1 The determination of the terms of and the drafting of this Settlement Agreement and Release have been by mutual agreement after negotiation, with consideration by and participation of each of the parties hereto. The presumption found in Civil Code section 1654, that uncertainties in a contract are interpreted against the party causing an uncertainty to exist is hereby waived by each of the parties. 21. GOVERNING LAW 21.1 This Settlement Agreement and Release is to be governed by and interpreted under the laws of the State of California. - 7 - The parties below named have executed this Settlement Agreement and Release as of the date written below. APPROVED AS TO FORM AND CONTENT: 6 9� BREKHUS, W7X-, S, WESTER & HALT '- , teeter B. Brekhus 1?.ICXS Attorneys for Plaintiffs Dated: Z/�1 ]JENNIS HORNE Dated: 3 R3 SPINNAKER INC-.------, I Ne�1/" *' 5/d%c%C> �fat/��'Ic�CS Its: Dated: i - 8 - State of California ) County of Marin ) On y�/�W ey. /99-3 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared _ ,nn,'c Awc- Personally knew-- to me (or proved to me on the basis of satisfactory evidence) to be the person( -a) whose name( -s) isle subscribed to the within instrument and acknowledged to me that he/��� executed the same in his/ her/their uthorized capacity(ies), and that by hisitherith signature(4) on the instrument the person( -s), or the entity upon behalf of which the person() acted, executed the instrument. WITNESS my hand and official seal. (2, Z,1 V/74 A. M. MARC TTE, NOTARY PUBLIC My commission expires 11/17/95 State of California County of Marin OFFICIAL SEAL A. M. MARCOTTE Notary Public -California : MARIN COUNTY My CommIlWon Expires . • November 17, 1995 . On Mav 6, 1993 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared SIDNEY HENDRICKS pet-seely==kin=== (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s-) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ he�-tthiair authorized capacity (ieE-,) , and that by his/heFr--t-the=!r signature (s) on the instrument the person(s), or the entity upon behalf of which the person(s=) acted, executed the instrument. WITNESS my hand and official seal. OFFICIAL SEAL A. M. MARC-OTTE WE Notary Public-CaliforniaMARIN COUNTY A. M. MARCdTTE, NOTARY PUBLIC My Commission Expires November 17, 1995 � My commission expires 11/17/95 " The parties below named have executed this Settlement Agreement and Release as of the date written below. CITY OF SAN RAFAEL z Albert J. Boro, Mayor APPROVED AS TO FORM AND CONTEN'P- SONNENSC IN NATH & ROSENTHAL By: I H. S*claiKerr, Jr. Attorneys Vr CITY OF SAN RAFAEL AND SAN RAFAEL REDEVELOPMENT AGENCY Dated: By: / l !/ �'G� C�� et Gary T. Ragghianti City Attorney Attest: By: !11� Jeann?M. Le/oncini, City Clerk Dated: 16 /1T:3 l ' SAN RAFAEL REDEVELOPMENT AGENCY By: Name: Albert J. Boro, Chairman Dated: Attest: J nne M. eoncini, Agency Secretary Dated: 4004601.4-A -10 - State of California ) County of Marin ) a Notary On April 30, 1993 befand State, personally appeared E , Albert J. =oc, in and for the said County Mavor of the City of San Rafael personally known to me ( —ta rr ira bazis—c£ L.ii � --�) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/s___; -=--j executed the same in his/ authorized capacity (�es), and that by his/ signature (s ) on "' --- the instrument the person(s), or the entity upon behalf of which the person(-&) acted, executed.the instrument. ------ I WITNESS my hand and official seal. Q%9 W#e- A. M. MARC TTE, NOTARY PUBLIC My Commission expires 11/17/95 State of California County of Marin .. OFFICIAL SEAL A. M. MARCOTTE Notary Public-Callfornia ; s MARIN COUNT A My Comminion Expires , November 17. 1995 On C) before me, A. M. MARCOTTE, a Notary Public in and for te said County and State, personally appeared Albert J. Boro, Chairman of the San Rafael Redevelopment Aciencv personally known to me (e=—preveu to ne •r. the )cazis of satie aeterry eviRenee�) to be the person (s) whose name (s) is/awe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ he -- Ythaisr authorized capacity (}es) , and that by his/ signature (s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. " M. MAI. SEAL A. M. MARCOTTE ' Notary mina-Cafi ornia MARIN COUNT , ' My Comminlon Expires . A. M. MAR OTTE, NOTARY PUBLIC November 17, 1995 My commission expires 11/17/95