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CUUNl'i ~ MEMORANDUM O F ~ ~

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COMMUNITY DEVELOPMENT RESOURCE AGENCY PLANNING SERVICES DIVISION

R.:,nc tR,-f .i.t ;.=,-.;c~ County of Placer

TO:

FROM:

BY:

Honorable Board of Supervisors

Steve Pedretti Agency Director

Allen Breuch Supervising Planner

DATE: August 28, 2018

SUBJECT: Amendment to Gar Woods' Conditional Use PermiWariance Conditions of Approval

ACTION REQUESTED 1. Conduct a public hearing to consider adoption of a Resolution amending the Conditions of Approval for

the Gar Woods' Conditional Use Permit (CUP-1363)Nariance 01 AA-1942).

BACKGROUND The project site is located at 5000 North Lake Blvd, State Highway 28, Carnelian Bay, within the Lake Tahoe Basin. Historically, there were several structures and uses at the location, including the Carnelian Bay Hotel, the Carnelian Bay Resort and the Carnelian House restaurant. Gar Woods took over operation of the restaurant on the site in 1988, and subsequently purchased the property.

In 1908, a subdivision map of Carnelian Bay was filed that identified three streets within. and around the project site: Bay, Front, and Center. The County asserts a public right-of-way on the streets, which have been used generally by the public to access the lake, the pier, and a pathway along the shoreline.

Gar Woods originally submitted an application in 1990 for a Conditional Use Permit to allow construction of an outdoor commercial deck for the restaurant, and for a variance to on-site parking in order to allow for off-site parking. The Conditional Use Permit (CUP-1363) and Variance (VAA-1942), including Conditions of Approval, were approved by the Board of Supervisors on July 9, 1990. The project included a 24 foot by 99 foot, 2,376 square foot commercial deck (accommodating approximately 23 tables), six-feet from grade. It was situated partially on the Gar Wood's site and partially along Bay Street in the asserted public right-of-way. The Conditions of Approval included provisions for public use of the Gar Woods' pier as well as requirements that the applicant improve and maintain Placer County lands around the project site to enhance public access and enjoyment of the area. Over the roughly three decades since the Conditions of Approval were originally approved, some of the conditions are no longer applicable, while others have become outdated. There are no amendments sought for the on-site parking Variance that was originally approved and remains in effect.

In March of 2015, Gar Woods filed a lawsuit against the County alleging that CUP-1363 and V AA-1942 were no longer valid. Gar Woods also disputed the County's ownership of Bay, Front, and Center Streets. The parties reached a settlement agreement and based on the terms of the agreement, Gar Woods now seeks modification of the Conditions of Approval and requests abandonment of portions of Bay, Front, and Center Streets.

DISCUSSION The County and the applicant request that the Board of Supervisors modify and/or eliminate portions of the existing 23 Conditions of Approval (CUP-1363) that were originally approved in 1990, in accordance with the recent Settlement Agreement and Release (Attachment 3). Under the Agreement, the County and the applicant determined which conditions were no longer relevant to the Conditional Use Permit and discussed abandonment of portions of Bay, Front, and Center Streets around Gar Woods in exchange for the granting of two Public Access Easements and a Public Utility Easement. The 1990 Conditions of Approval included

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common construction conditions that have since been completed and identified properties the County no longer has any right, title and/or interest to. Furthermore, the parties agreed to amend the 1990 conditions that specifically include the following provisions:

A. Maintenance and management of the deck, parking lot, pier, beach, and pedestrian pathway will remain Gar Woods obligation;

B. Gar Woods will allow public parking consistent with the requirement of the Conditional Use Permit or any amended or new Conditional Use Permit to the entire portion of the parking lot owned by Gar Woods, and;

C. Gar Woods will agree to maintain signage indicating public access to the pier, the parking lot, and the pedestrian pathways at agreed upon locations.

The proposed amendments to the Conditionals of Approval are shown as strikeouts for deletions, or underlined for additions in Exhibit A to the proposed Resolution (Attachment 4).

The proposed street abandonments of portions of Bay, Front and Center Streets will require the Board of Supervisors to adopt a separate Resolution which is described and precedes the recommended Resolution to amend the Conditions of Approval for the Gar Woods' Conditional Use Permit (CUP-1363)Nariance (VAA-1942).

ENVIRONMENTAL CLEARANCE The proposed Conditional Use Permit and Variance Conditions of Approval Modification is exempt under the Placer County Environmental Review Ordinance Section 18.08.020.D "General Rule of Applicability" (California Environmental Quality Act Guidelines Section 15061(b) (3)) and Placer County Environmental review Ordinance Section 18.36.030 "Class 1-Existing Facilities" (California Environmental Quality Act Guidelines Section 15301).

FISCAL IMPACT There is no fiscal impact associated with this action.

ATTACHMENTS Attachment 1: Vicinity Map Attachment 2: Site Plan Attachment 3: Settlement Agreement and Release, Superior Court Case No. SCV0036052 Attachment 4: Resolution modifying Conditions of Approval (CUP-1363 I VAA-1942)

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ATTACHMENT 3

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (hereinafter referred to as the "Agreement") is entered into between Plaintiff I Cross-Defendant The Gar Wood Building, A California Limited Partnership ("Gar Woods"), and Defendant I Cross-Complainant Coi.mty of Placer ("County11

), in order to resolve the lawsuit between them in Placer County Superior Court Case No. SCV0036052 (hereinafter referred to as "Lawsuit"). The Lawsuit contains various claims and cross-claims for quiet title, rescission, reformation and declaratory relief between Gar Woods and the County (referred to collectively as "Parties").

RECITALS

The Parties desire to settle their claims, controversies, and disputes arising out of facts and circumstances which are the subject of or might have been the subject of the Lawsuit or relate directly or indirectly to the Lawsuit, and to dispose of all other claims as provided in this Agreement.

WHEREAS, on January 6, 1908 the Carnelian Bay Company recorded a subdivision map entitled "Carnelian Bay on Lake Tahoe" in Book C-1 of Maps at Page 14, Official Records of Placer County (the "1908 Subdivision Map");

WHEREAS, the 1908 Subdivision Map designated various streets and roads therein which included, among others, streets and roads designated as Bay Street, Center Street and Front Street;

WHEREAS, the County undertook actions purporting to accept designated streets and roads set forth in the 1908 Subdivision Map as dedicated streets and roads;

WHEREAS, Gar Woods claims ambiguities exist as to whether Bay Street, Center Street and Front Street are, or have ever been, dedicated streets and roads or County held easements;

WHEREAS, in a previously filed action for quiet title involving Gar Woods, as one of the plaintiffs, and the County, as one of the defendants, Gar Woods contends an ambiguity arose resulting from an incorrect legal description in a Judgment Quieting Title filed on March 4, 1996 (hereafter, "the Quiet Title Judgment"); and

WHEREAS, Gar Woods contends there exists a ouinber of outstanding issues between Gar Woods and the County regarding a previously issued Conditional Use Permit 1363Nariance 1942 and agreements entered into by the Parties that are ancillary thereto and which involve portions of Bay Street, Front Street and Center Street and property owned by Gar Woods on which an outside dining deck and portions of a parking lot are situated;

NOW, THEREFORE,

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AGREEMENT

1. For purposes of this agreement reference to Bay Street, Center Street and Front Street are utilizedfor the purposes of identifying the locations thereof on the 1908 Subdivision Map, and for defining the Parties interests in those streets. The Parties intend to settle the dispute concerning their respective interests in and to Bay Street, Center Street and Front Street and to provide the use of portions thereof, as indicated below, by the County and/or the public as hereinafter outlined.

2. Terms of Settlement. As consideration for this Agreement, the Parties agree as follows:

A. Abandonment and Partial Abandonment of Easements. As consideration for this Agreement, the Parties agree as follows:

t. Proposed Abandonment Area: County agrees to recommend to the Board of Supervisors, in open session, that the County abandon:

a. That portion of its Bay Street easement lying within Gar Woods property from its northwesterly edge and as located under existing Gar Woods deck to the northerly and westerly edge of the existing pathway in the pathway's present physical condition. Metes and bounds legal description of resulting Bay Street easement to be prepared and recorded as hereinafter set forth.

b. That entire portion of its Front Street easement lying on the land owned by Gar Wqods. Metes and bounds legal description of the easement to be prepared and recorded as hereinafter set forth.

c. That portion of its Center Street easement other than a 40' width at the existing Hwy. 28 driveway entrance to Gar Woods' property and then tapering to a minimum 20' width on the southerly end, ending at the property line and including the existing storm pipe. The County's remaining portion of the easement will consist of at least a l O' half-width from the storm pipe on both sides, and will remain of sufficient size to accommodate vehicular and pedestrian ingress/egress, maintenance of and repairs to the storm drain pipe alignment and outfall, and will include the existing concrete pathway. Metes and bounds legal description of resulting Center Street easement to be prepared and recorded as hereinafter set forth.

The aforementioned abandoned portions of streets are collectively referred to as the "Proposed Abandonment Area" and depicted in Attachment A.

ii. Contingency to Recommendation: Said recommendation is contingent upon receiving no material opposition or objections from other public agencies who assert an interest in the area to be abandoned during the time period for circulation of the Gar Woods' application for abandonment As part of the abandonment process the County will retain the rights deemed necessary by the public agencies that choose to comment upon this abandonment request.

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B. Application for Abandonment. Gar Woods shall submit an application for abandonment no later than thirty (30) days after full execution of this Agreement. Gar Woods agrees to pay all application fees. As part of the application, Gar Woods shall cause to be prepared by a licensed surveyor a legal description and exhibit plat for the Proposed Abandonment Area, which shall be based upon a field survey, and shall submit it to the County. Said legal description and exhibit plat shall also be in agreement with the area depicted for abandonment in Attachment A. The County Surveyor shall have the right to reject said legal description if the survey deviates from the area depicted for abandonment in Attachment A, and shall have the right to require corrections. The legal description and exhibit plat is required to be attached to the application, and the application will not be deemed complete until all information and surveys have been reviewed and approved by the County, neither of which will be unreasonably withheld.

C. Consideration for Abandonment: In consideration for the abandonment of the property rights set forth in section 2. A. above, the County receives the following:

1. Acknowledgement of County-Held Easements. Gar Woods acknowledges that the County holds easements on the remaining portions of Bay Street and Center Street not identified as being abandoned in section 2. A, and that the Bay Street easement allows for public access and the Center Street easement allows for public access and for public utilities along those streets (hereinafter referred to as the "Remaining Easements"). The Remaining Easements also include, but are not limited to, the existing location of the footpath and include access to the existing pier and beach. A deed with those easements shall be recorded with the legal description included.

11. Acknowledgement of Public Trust Doctrine. Gar Woods acknowledges that the area of Bay Street between high water mark and low water mark is subject to the Public Trust Doctrine as recognized in the case of State of California v. Superior Court (Fogarty) (1981) 29 Cal.3d 240 which contains the existence of public access rights.

iii. Acknowledgement of Public Access to Existing Pier. Gar Woods acknowledges that the pier on its property allows for public use pursuant to its Lease with California State Lands Commission and a permit issued by Tahoe Regional Planning Agency and agrees to allow the public's continued use of pier, including the ability to pass beneath, on or over the pier. The public's continued use of the pier shall be subject to the control of Gar Woods consistent with the current, or any subsequent, leases between Gar Woods and the California State Lands Commission and any permits issued by Tahoe Regional Planning Agency and further consistent with the public's use thereof dating back to 1990. Should the use of the pier change in any leases or permits, the area of land under the pier and leading up to the pier will remain for public use consistent with the Bay Street

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easement and the Public Trust Doctrine described herein.

iv. Acknowledgement of Currently Used Public Utility Easements. Gar Woods acknowledges that there currently exist utilities on Bay Street, Center Street and Front Street and hereby agrees that public utilities easements shall remain along those streets to the extent that they are currently being used, and that the utilities providers shall retain their rights to install, construct, complete, repair, maintain, operate, replace and reconstruct those lines and appurtenances that currently exist on Gar Woods' property.

v. Agreement to Public Parking and Access. Gar Woods agrees to allow public parking to the entire portion of the parking lot owned by Gar Woods so long as Gar Woods or its successors use the property for anything other than a non­commercial, private residence. Gar Woods also agrees to maintain signage indicating public access to the pier, the parking lot and the pedestrian pathways at agreed upon locations.

D. Hearing Date for Resolution of Abandonment: Within thirty (30) business days of the deeming that Gar Woods' request for abandonment is complete and that section 2. A. ii. has been complied with, the County shall schedule the hearing before the Board of Supervisors on Gar Woods' request for abandonment. The actual hearing date will be set on the first available Board agenda that is in compliance with all required noticing procedures.

E. Reformation of Quiet Title Judgment. The Parties agree to reform the Judgment Quieting Title to convey the underlying fee simple to Gar Wood of the trapezoidal area described in the Lawsuit and located at the intersection of Front Street, Center Street and Bay Street, with a reservation of easement rights to the County in accordance with the Center Street easement identified in section 2. A., the public utility easements identified in section 2. C. iv., and including the existing pedestrian easement located between building and parking lot as identified in the 2005 Settlement Agreement. The reformation of the Judgment Quieting Title shall be sufficient and adequate to enable the County to prepare new assessor parcel maps to show the boundaries of Gar Woods' property consistent with the reformed Judgment Quieting Title.

F. Conditional Use Permit (CUP) I Variance NAR) Modification. The County agrees to request that the Board of Supervisors, in open session, modify and/or eliminate conditions set forth in the existing CUP/V AA on Gar Woods' property which the County determines are no longer relevant to the use permit for the restaurant deck or variance for parking. The Parties agree to amend the existing CUP/V AA to contain the following conditions: ·

i. Maintenance and management of its deck, parking lot, pier, beach, and pedestrian (00657973.DOC 1 }The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 4 I P a g e

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pathways will remain Gar Wood's obligation. In the event that Gar Woods or its successors discontinues use of outside dining, the County agrees to negotiate in good faith to consider any other proposed use of the deck and/or work with Gar Woods or its successors to rescind the CUP if it/they intend to discontinue outside restaurant or public use. The tenn shall be revised to acknowledge that the CUP and any amended or new CUP shall continue to exist so long as Gar Woods or its successors continue outside restaurant or public use or otherwise engages in activities that affects any duties owed by Gar Woods to the County or any rights or interests of Gar Woods resulting from this Agreement.

11. Gar Woods will allow public parking consistent with the requirements of the CUP or any amended or new CUP to the entire portion of the parking lot owned by Gar Woods.

iii. Gar Woods will agree to maintain signage indicating public access to the pier, the parking lot and the pedestrian pathways at agreed upon locations.

G. Application for Modification of the CUPN AA. The Parties shall agree to a final list of recommended conditions of approval no later than forty-five (45) days after full execution of this Agreement. Within five (5) business days of such agreement, Gar Woods shall submit an application to modify the CUPN AA. Gar Woods agrees to pay all application fees and further agrees the agreed-to list of conditions shall be attached to the application.

H. Hearing Date for Application to Modify the CUPN AA: Within twenty (20) business days of receipt of a complete application to modify the CUPN AA, the County shall schedule the hearing before the Board of Supervisors on Gar Woods' application. The actual hearing date will be set on the first available Board agenda that is in compliance with all required noticing procedures, and may coincide with the hearing date for Resolution of Abandonment identified in this Agreement.

I. Termination of the Encroachment Agreement. The Encroachment Agreement, effective July 1, 1999, shall be terminated upon the effective date of the CUPN AA modification. Upon termination of the Encroachment Agreement, all past due amounts owed under the Encroachment Agreement will be forgiven and released by the County.

1. Future Quiet Title Action. Gar Woods does not object to the County's filing of a quiet title action as against any and all third parties, known or unknown, in order to resolve any potential claimants' interests to the properties identified in this Settlement Agreement. To the extent that the County or the Court determines that it is necessary to name Gar Woods as a party in a future quiet title action, Gar Woods shall have the right to approve any ensuing judgment as to the form and content to ensure that its rights are not affected with respect to this Agreement and further agrees that it will not unreasonably withhold its approval in so doing.

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J. Withdrawal of Lis Pendens. The County will prepare and record a Withdrawal of the Lis Pendens previously recorded in the Office of the County Recorder for Placer County once the lawsuit has been dismissed as set forth in section 7 below.

K. Depositions to Preserve Testimony. The Parties agree to the taking by the County of the depositions of no more than three witnesses as part of the Lawsuit with knowledge of the historic public use of Bay, Center and/or Front Street in order to preserve their testimony. The depositions will be set at a mutually agreeable time and date, at a location that is convenient for the witnesses, and shall take place within ninety (90) days of the execution of this Agreement. If the depositions have not been taken by then, this paragraph 2.K. shall become null and void.

3. Remedies in Case of Default. Failure of either party to comply with the tenns of this Agreement shall constitute a default. In the event of a default, the non-defaulting party shall notice the defaulting party in writing describing the nature of the default and provide thirty (30) days from the date of the notice to remedy the default provided that the default is the result of the action of Gar Woods or the County, as opposed to a third party. If the defaulting party is a third party, then notice must be provided to all other parties within thirty (30) days that either Gar Woods or the County learns of the default. If the default is not remedied within a reasonable time, the non-defaulting party may elect to terminate a portion of or all of this Agreement through a breach of contract action, or seek any and all available equitable remedies.

4. No Restriction on County's Police Power. Gar Woods expressly acknowledges that nothing herein affects the County's jurisdiction and/or exercise of its police powers and public participation powers relating to the County's Remaining Easement or elsewhere, including, but not limited to, commenting on Gar Woods' application(s) for an additional pier or new future land uses within the Proposed Abandonment Area or the remaining real property owned by Gar Woods or subsequent owners.

5. Recordation of Settlement Agreement and Obligations Run with Land. Gar Woods agrees that this Settlement Agreement will be recorded against their real property simultaneously with the recordation of the Resolution of Abandonment (ROA) and shall run with Gar Woods' real property and constitute a binding and perpetual obligation on current and future owners.

6. Release of Claims. As further consideration for this Agreement, Gar Woods and the County hereby releases the other, thereby terminating all of the various disputes, controversies, claims, causes of action, etc., which exist or may exist between the Parties in relation to the Lawsuit. This Release shall be interpreted and construed broadly to accomplish such intent and purpose, but does not include any claims that the County may have now or in the future related to enforcement of the County's property rights set forth in this Agreement, or to enforce the terms of the existing CUPN AA or the modified CUPN AA.

Therefore, in consideration of the relinquishment of the Parties' rights, both legal and equitable, and {00657973.DOC t )The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 6 I P a g e

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for other good and valuable consideration, the Parties, individually and on behalf of their assigns, successors, predecessors, representatives, insurers, partners, and all other persons or entities claiming through them (hereinafter referred to as "Releasing Parties"), do jointly and severally expressly release and forever discharge the other (the County discharging Gar Woods and Gar Woods discharging the County) and their respective employees, agents, officials, representatives, estates, affiliates, subsidiaries, officers, attorneys, insurers, predecessors, successors, and assigns, and each of them, in their individual or fiduciary capacities, separately and collectively (hereinafter referred to as "Releasees"). It is understood and agreed that this Release and discharge includes any and all claims, liens, guarantees, losses, demands, agreements, injuries, causes of action, obligations, damages, rights, and liabilities, of any kind, at law or in equity, known or unknown, except for those specifically excluded as set forth previously in the paragraph, that the Parties, and each of them, ever had, now have, or may hereafter claim to have against any of the Releasees, arising directly or indirectly out of or in any way connected with or based upon, or related in any way to conduct, disputes, statements, omissions, transactions, or matters which are or could be the subject of:

A. the Lawsuit;

B. the bringing, prosecution, defense, negotiation, or settlement of the Lawsuit;

C. the appeal rights stemming from the Lawsuit;

D. costs, expenses, or attorney's fees incurred in connection with the Lawsuit.

7. Dismissal of Suit I Covenant Not to Sue and Warranty. In further consideration for this Agreement, the Parties agree to dismiss with prejudice any and all complaints and cross­cornplaint against each other in the Lawsuit once depositions are completed as identified in section 2. K. above. Releasing Parties further agree and warrant that they, or anyone claiming through them, will never, individually or with any person, commence or aid in any way, except as required by due legal process, prosecute, cause or pennit to be commenced or prosecuted against each other any action or other proceeding based upon any Claim which is the subject of this Agreement except to the extent allowed in section 2. I. i.

8. Waiver of Claims. In further consideration for this Agreement, it is understood and agreed that the Releasing Parties knowingly and expressly waive all rights under Section 1542 of the California Civil Code which states:

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 to him or her must have materially affected his or her settlement with the debtor.

To this end, Releasing Parties understand and agree that this Agreement is a "general release" and that there is a risk that Claims may exist, now or in the future, against one or more of the Releasees, which Claims are covered by the terms of this Agreement, which are unanticipated or have not been {00657973.DOC 1 )The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 7 I P a g e

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discovered by Releasing Parties, whether through oversight, error, negligence, limitations of science, technology or law, or otherwise, and which if known would materially affect a Releasing Party's decision to enter into this Agreement. It is expressly understood and agreed that the possibility that such Claims exist was explicitly taken into account by the Releasing Parties in detennining the nature and amount of consideration exchanged for the giving of this Agreement.

The Releasing Parties understand and further agree that they may later discover facts different from, or in addition to, those which they now believe to be true, but nonetheless agree herein that this Agreement shall be and remain in effect in all respects notwithstanding such different or additional facts or any Party's discovery thereof. Further, the Releasing Parties realize and acknowledge that one or more of them may have sustained losses or injuries that are presently unknown, unanticipated, and/or unsuspected, and/or that the losses or injuries presently known to exist may give rise to additional losses, injuries, or expenses in the future which are not now known, suspected, or anticipated. Nevertheless, the Releasing Parties herein intend to release and forever discharge County from any and all such unknown, unanticipated, and/or unsuspected Claims or damages. Further, in entering into this Agreement, the Releasing Parties assume the risk of any misrepresentation, concealment, or mistake.

If any Releasing Party subsequently discovers any fact relied upon by that party in entering into this Agreement was untrue, or that any fact was concealed from that party, or that the party's understanding of the facts or of the law was incorrect, such party will not be entitled to any relief because of that, including but not limited to any alleged right or claim to set aside or rescind the Agreement. This Agreement is expressly intended to be, and is, final and forever binding upon the Releasing Parties.

9. Waiver of Costs. As further consideration for this Agreement, the Parties agree that each Party will bear its own attorney's fees and costs incurred as a result of these Claims.

10. Warranty ofNon-Assigrnnent of Claims. As further consideration for this Agreement, the Releasing Parties warrant and herein represent that no other person or entity had or has or claims any interest in the Lawsuit or Claims referred to above, that the signator(s) below, on behalf of the Releasing Parties, have the sole right and exclusive authority to execute this Agreement; and that Releasing Parties have the sole right to receive the consideration given therefore; and that Releasing Parties have not sold, assigned, transferred, conveyed or otherwise disposed of any Claim relating to any matter covered by this Agreement.

11. Authority to,Execute. Each individual signing this Agreement represents and warrants that he or she has the power and authority to bind the entity or individual on behalf of whom he or she is signing.

12. Binding on Heirs and Assigns and Warranty. As further consideration for this Agreement, the Releasing Parties warrant that this Agreement shall bind all successors and assigns of the Releasing Parties. It shall inure to the benefit of the Releasees and, in addition, all heirs, executors, administrators, and assigns of the Releasees. {00657973.DOC I )The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 8 I P a g e

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13. Advice of Counsel. The Releasing Parties understand and agree: No promise, inducement or agreement not expressed in this document has been made in connection with this Agreement. This Agreement constitutes the entire agreement between the Parties on the subject matter. Each of the Parties have been represented by the attorney of that Partys choice with respect to the matters which are the subject of this Agreement and have been advised with respect to the rights and obligations that the Party assumes by executing this Agreement and are aware of the content and legal effect of this Agreement. Releasing Parties freely and voluntarily, and without duress, enter into this Agreement. The Releasing Parties herein waive any rights which they might claim under any theory of law or equity to set aside this Agreement with respect to voluntariness, duress, and the like.

14. No Admission of Liability. The Parties understand, agree, and acknowledge that this Agreement is executed as a compromise of disputed Claims and that the covenants exchanged herein are solely for the purpose of concluding and preventing further involvement in protracted litigation and to avoid future litigation based upon disputes made in connection with the Claims. Nothing herein constitutes an admission or confession by any Party of any liability or responsibility, liability being expressly denied.

15. Good Faith Settlement. The Parties mutually agree that the settlement entered into between them was entered into in good faith.

16. Cooperation. All Parties agree to cooperate fully in executing any and all further documents and taking any additional action which may be necessary or appropriate to carry out the intent of and give full force and effect to this Agreement.

17. Invalid Provisions. Should any circumstance cause this Agreement or this settlement to be invalidated in its entirety, then all Parties agree to stipulate to all necessary orders that would allow the Parties to prepare for trial and bring any dispositive motions, as if this Agreement had not been entered into. The purpose of this provision is to ensure that any Party is not adversely affected because of the passing of deadlines related to appeal, in reliance on this settlement and Agreement.

18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute but one and the same document.

19. California Law. This Agreement shall be construed and enforced pursuant to the laws of the State of California. This document shall not presumptively be construed against any party preparing it.

20. Integrated Agreement. It is understood and agreed that this Agreement contains the entire agreement between the parties. The terms of this Agreement compromise the final expression of the understanding of the parties with respect to its terms, and the terms may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further understand, agree, and (00657973.DOC I }The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 9 I P a g e

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intend that the Agreement will constitute the complete and exclusive statement of its terms and that no extrinsic evidence, whatsoever, may be introduced to vary the terms of this Agreement in any proceeding involving the Agreement. This Agreement comprises a completely integrated contract.

21. Effective Date. This Agreement shall become effective immediately following execution by all of the parties, on the latest date appearing below.

READ THE ABOVE CAREFULLY BEFORE SIGNING

~. Dated: -~ £)/) ~!-:/--

Dated:-------

Approved as to Form:

Louis A. Basile Attorney for Plaintiff/Cross-Defendant The Gar Wood Building, LP

THE GAR WOOD BUILDING By: Lake Tahoe, Inc., its General Partner

r? __ r~ By: (_ __ ~

Thomas A Turner, President

COUNTY OF PLACER

By: ___________ _

Robert Weygandt Chairman of the Board of Supervisors

Dated:~~ U)I]

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intend that the Agreement will constitute the complete and exclusive statement of its tenns and that no extrinsic evidence, whatsoever, may be introduced to vary the terms of this Agreement in any proceeding involving the Agreement. This Agreement comprises a completely integrated contract.

21 . Effective Date. This Agreement shall become effective immediately following execution by all of the parties, on the latest date appearing below.

READ THE ABOVE CAREFULLY BEFORE SIGNING

Dated: --------

Dated: s~(0-11

Approved as to Form:

PORTER SIMON, PC

Louis A. 'Basile Attorney for Plaintiff/Cross-Defendant The Gar Wood Building, LP

THE GAR WOOD BUJLDfNG By: Lake Tahoe, Inc., its General Partner

Thomas A. Turner, President

COUNTY OF PLACER

Dated: _ _ _ ____ _

{00657973.00C 1 )The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release IO I P a g c

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Attaclunent A - Map

{00657973.DOC t )The Gar Wood Building v. County of Placer, Placer County Superior Court Case No. SCV0036052 Settlement Agreement and Release 11 I T' tl g e

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~ GAR WOOD BUILDING 13 ~ 1995- 0020161 ~g ml

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STATE IDGHWA Y 28 (N. LAKE BLVD.)

GAR WOOD BUILDING 1995-0020161

EXISTING 36" STORM DRAIN

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NOTE: PLANIMETRIC FEATURES, PROPERTY · LINES AND AREAS SHOWN ON THIS EXHIBIT ARE APPROXIMATE ONLY ANO ARE NOT BASED ON A FIELD SURVEY.

STA TE OF CALIFORNIA 1997-0041957

F~ _ AREA OF ABANDONMENT EXHIBIT ~ (RESERVING A P.U.E.) BA y STREET

LEGEND

~j - PROPOSED NEW EASEMENT COUN1Y·OF PLACER STATE OF CALIFORNIA SCALE 1 "=40' OCTOBER 201 6

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STATE IDGHWAY28 __...,\ (N. LAKE BL VD.)

40.00' \

PLANIMETRIC FEATURES, PROPERTY LINES AND AREAS SHOWN ON THIS EXHIBIT ARE APPROXIMATE ONLY AND ARE NOT BASED ON A FJELD SURVEY.

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EXISTING 36" STORM DRAIN

GAR WOOO BUILDING 1995-0020161

STATE OF CALIFORNIA

1997-0041957

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EXHIBIT

BAY STREET COUN1Y OF PLACER

STATE OF CALIFORNIA SCALE 1 "=30' 0CTOB£R 201 6

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ATTACHMENT 4 Before the Board of Supervisors

County of Placer, State of California

In the matter of: A Resolution to Amend Gar Wood 's Conditional Use PermiU Variance Conditional of Approval (CUP-1363NAA-1942)

Resolution No.: ____ _

The following Resolution was duly passed by the Board of Supervisors of the County of Placer

at a regular meeting held ____________ __._ by the following vote on roll call:

Ayes:

Noes:

Absent:

Signed and approved by me after its passage.

Chair, Board of Supervisors

Attest:

Clerk of said Board

WHEREAS, on August 28, 2018, the Board of Supervisors ("Board") held a duly noticed public hearing and to receive public input regarding the Gar Wood 's Conditional Use Permit and Variance Modification (PLN18-00064). including the 1990 Conditions of Approval(File #'s CUP-1363 I VAA-1942), and

WHEREAS, the Board has reviewed the proposed amendments to the Conditions of Approval 1990 Conditions of Approval , received and considered the written and oral comments submitted by the public thereon, and has made the Gar Wood's Conditional Use Permit and Variance Modifica.tion Project ("Project") exempt under the California Environmental Quality Act Guidelines Sections: 15061 (b) (3) "General Rule of Applicability" and 15301 "Existing Facilities" Class 1., and

WHEREAS, the Board has reviewed the application, Settlement Agreement and Release, the staff report and all comments for the project, in public testimony at the hearing, and in any other information made a part of the record , and based upon the following findings:

1. The proposed use is consistent with applicable policies and requirements of the Tahoe Basin Area Plan , the Zoning Ordinance and the Placer County General Plan;

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2. The establishment, maintenance or operation of the proposed use will not, under the circumstances of this particular case, be detrimental to the health, safety, peace, comfort and general welfare of people residing in the neighborhood of the proposed use, or be detrimenta l or injurious to property or improvements in the neighborhood or to the general welfare of the County;

3. The proposed project or use will be consistent with the character of the immediate neighborhood and will not be contrary to its orderly development;

4. The proposed project wi ll not generate additional volume of traffic beyond the design capacity of all roads providing access to the project site;

5. The proposed use is consistent with , replaces or appropriately modifies any prior established relevant Conditions of Approval (File #'s CUP-1363 I VAA-1942), and

WHEREAS, the Board further finds the proposed amendments are consistent with the provisions of the Gar Wood's Conditional Use Permit and Variance, the Settlement and Release, and are in compliance with applicable requirements of State law, and

WHEREAS, the notice of the hearing has been given and all hearings have been held as required by County ordinance and State law, and

WHEREAS, the Board finds that the foregoing recitals setting forth the actions of the County are true and correct,

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF PLACER that the Gar Wood's Conditional Use Permit and Variance Modification shall be amended as follows :

Exhibit A: Modified Conditions of Approval (CUP-1363N AA-1942)

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EXHIBIT A County's Recommended Conditions Gf-of Approval, CUP 1363, VA.A 1942:

l . a. This Conditional Use Permit authorizes the existing oonstruction of an outside dining area of 2376 sq. ft., with a seating capacity of 40 4-persoil tables on the deck, provided the applicant can demonstrate th.at he can still continues to provide for the requisite number of parking spaces for that amount of seating. •

b. This Variance authorizes the use of a total of 64 parking spaces~, in an arraHgement substantially as depicted on eJmibit /· .. , and made a part of this file. (Some modification may be necessary to provide greater tree protection and adequate snow storage area.)

2. 8eYeml of these conditions require the applicant ro obtain approYals of Placer Coooty or other agencies prior to the issuance of any permits for either grading or construction. No permits or approYals for construction 'Nork on this project shall be issued ootil all such applicable conditions have been met.

JI. The applicant shall continue to provide the following public benefits, to the satisfaction of the Zoning Admimstrator in exchange for the use of County for the duration of the term property and approval of this Conditional Use Permit and Variance:

a. To provide non-exclusive public use (with handicap access) of its pier as presently operated.private pier in some manner acceptable to the County;

b. To reconstruct, maintain and insure the pier so that the public use of the pier will be at no cost to the public or the Countyt~

c. To oonstruct, maintain, and insure existing improvements to the adjacent public land to increase public use and enjoyment of the site to include landscaping, trails, benches, trash recepticles, lighting, etc._ (Such impro·,ements shall be generally as depicted on the applicants plan dated l 7 89, although it is recogrtized that some changes and additions v,ill be necessary.);

d. To coftStruct, maintain, sign and insure a public walkway along the County right-of-way crossing Permittee's proponents property along Bay Street so that the public use of the walkway will be at no cost to the public or the Countyt~

e. To -install-maintain Best Management Practices (BMP's) on both the County and Conservancy parking areas in accordance with which •,¥ill bring the site up t&-208 Water Quality Standards as currently installed.~

f. To mitigate erosion impacts along the shoreline by installing bank stabilization measures aboYe the high water line;

g. To allo,v the use of the restaurant restrooms to the public at anytime the restaurant is open for business ootil public restrooms are built;

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hf. To allow the use of the pier such that it will provide public access to the beach by boat;.

ig. To allow the use of its parking lot for beach use on a non-exclusive basis-;.

J.h. To maintain and insure its parking lot, the County's parking lot and the Tahoe Conservancy' s parking lot so that the public use of the facilities will be at no cost to the County-;.

4J. Informational signage shall be provided and maintained by the applicant. Signs shall account for: A complete signage plan shall be submitted to the Placer Col:Hlty Plar..ning Division for re•,iew and approYal prior to building perm.it issuance for the deck. This plan shall proYide for:

a. Notification of aYailability of restrooms in the Ga.n\1ood' s restauiaHt for the publkr.

b~. Notification that the pier is available for public use.

eh. Notification that parking spaces are for use of the public beach and public pier.

Sf. Notification that the public walkway along Bay Street described in paragraph 2.d., above, is available for public use is a public thoroughfare and that the beach area is public. Sueh signs shall be installed prior to a final building permit being appro1<'ed for the deck.

5. The applica.Rt shall submit a complete application for Placer Couaty's reviev<' and approval for a design Site Agreement for the proposed deck; parking, and landscaping and other public and private unpro=vements.

6:!_. The applicant shall obtam. maintain any and all approvals or permits from other departments/agencies having jurisdiction over this projectGar Woods' property, and shall provide written evidence of such approvals/permits, including any updated or modified approvals/permits to the County's to the file for this Conditional Use Permit.CUP 1363NM 1942. Such approvals may include, but are not necessarily limited to:

a. The Placer County Building Division, Department of Public Works, Planning Division, Board of Supervisors

b. Tahoe Regio_nal Planning Agency c. The California Tahoe Conservancy d. The State Regional Water Quality Control Board (Lahontan Region) e. Caltrans f. North Tahoe Public Utility District g. Sierra Pacific Power Co.

7. The applicant shall enter into a lease agreement or other tn,e of agreement with Placer Coooty for use of the premises upon which the proposed deck shall be constructed and •+\'here public roads are to be used for parking. The terms of this lease (or agreement) shall be considered conditions of this use permit Failure to adhere to the terms of the lease, or the use permit, shall be grooods for reYocation of the use permit and the

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abrogation of the lease. This Conditional Use Permit rnay not be exereised until the applicant successfully negotiates a lease or cornpamble· agreernem: with Placer County. The annual fee to be paid to Placer County for the use of County property shall be $1.00 per square foot of the total gross area of property, for the first year, with an adjusted ar.nual increase of 10% of that 11alue for each additional year.

&2. Public access through the remaining portion of "Bay Street.," as defined in the 2017 Settlement Agreement, unencl:HHbered by the deck construction shall be maintained. Appropriate signage shall be pro11ided to advise the public of the right to use that area.

9-Q. A minimum of ~l.J)arking spaces shall be maintained in the County rights-of-way for Center or Front Streets for exclusive use by persons using the public beach facility. These spaces shall be signed accordingly.

-WZ. Any future parking lot restriping or modifications Parking shall be designed designated in such a way as to not infringe on the facilities of the North Tahoe Public Utility District.

11. The applicant shall relocate the se\1,1er line which lies under the proposed deck location to the satisfaction ofl'lorth Tahoe Public Utility District prior to deck construction. As an alternati1,'e, the applicant rnay post acceptable security with the North Tahoe Public Utility District for the future relocation of this se•Ner line, prior to issuance of the building permit.

~~- The applicant shall provide Department of Public Works on an ongoing basis with a recorded current reciprocal access and parking agreement between Garv,1oods GarWoods and the Tahoe Conservancy for use of Conservancy parking. This Conditional Use Permit may not be exereised until sueh time as this agreement is submitted to the county. ·

13. The applicant shall purchase or lease, for a period of time to coincide with the Conditional Use Permit APN 115 050 27, vkieh is eurrently owned in fee by Cal Trans. l'fote: 5 parking spaees are in flait located on this 581 square foot flarcel. This shall be aeeomplished f)rior to issuanee ofa building permit for the deek.

14 . The applicant shall obtain an eneroaehment permit from Cal Traru; for any work to be dofle in their right of 1+vay.

15. The applicant shall satisfy gierra Pacific Power Compllilj''s coneerns for aceess, oYerhead clear spaee and liability per their NoYember 1, 1989, letter. Provide an appropriate reeordable document to Department of Publie Works which describes the terms of the agreemem:.

16. The applicant shall proYide Department of Public Works with a letter form the fire proteetion district, responsible for serviee to this projeet, stating they have reviewed the proposed parking and eirculation plan and find it to be adequate.

17. In order to provide adequate aisle w-idth along Front Street, a 2 foot overhang will be required fur the parking spaces along the Conser¥aney property. Curbing or wheel stops will also be required and the fenee line may need to be adjusted to aecornmodate this additional 2 feet.

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+82. The applicant shall be responsible for snow removal operations on the eoUH:t)' County rights-of-way appurtenant to this project. Snow remo•,ral requiI=ements shall be an item in the proposed lease ineludiflg Placer County as a co HlSl:H:'ed on the applieant's insl:H:'anee poliey.

19. a. Submit irnpro¥ement plllFl:s, specifications, and cost estimate(s) (per Section II of the L.D.M.) to DPW (Department of Public Works) for review and approYal. The design re•,iew must be appro¥ed prior to acceptanee of the improvement plllfls by Placer County.

b. The plans shall not be approYed l:llltil l'>Jorth Tahoe Public Utility District is satisfied '+¥ith the proposal to relocate the sewer line.

c. Submit for review and approval a striping and signing plan.

d. Parking areas showing deterioration (i.e. severe alligator emelcing) shall be marked on improvement plans as "repaiI= areas". Such designated areas shall be repaiI=ed '+¥iili 2" AC over 6" Class II AB prior to striping. (Note: A County erosion Control project is planned for swnmer 1990. The ref)air of the parking lot and striping ma;' be deferred to oecl:H:' after the completion of the erosion control project.)

e. lrnpro¥ement plans shall be appro¥ed by Tahoe R-egional Plan.,ing Agency prior to Department of ~blic Works approval.

2Gl0. A drainage report shaJI be submitted to an appro•,red by Department of ~blic Works. The report shall, at a minimum, include: A v.'fitten teKt addressm.g the affects of the improvements, all appropriate calculations, diYersions of drainage, in.creases in dm¥Hstream. flows, proposed on and off site irnpro1,rements and drainage easements to aooommodate flo•.vs from this project. The report shaJI be prepared by a R-egistered Civil engineer. Any future project The-drainage improvements must not conflict with Placer County's planned erosion control project in the same area. The maintenance of drainage improvements constructed by the applicant shall become his sole responsibility and cost.also made a condition of the lease agreement.

2+li. Activities at this location (both indoor and outdoor) shall comply with adopted County noise threshold standards. No outdoor music shall be permitted after 8:00 p.m.

~12. This Conditional Use P~rmit is vested and runs with the land unless revoked or modified.issued for a limited term and shall eJcpiI=e with eKpiFation of the lease (or other agreement) for use of the Col:lflty property for the deck and/or parking.