ATTACHMENT 2
- PAGE 1 –
SETTLEMENT AGREEMENT AND RELEASE
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (“Agreement”) is made and entered into effective August 3, 2026 (the “Effective Date”), by and among GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership, d/b/a Verizon Wireless (“Verizon”); CITY OF CARMEL-BY-THE-SEA, CALIFORNIA (the “City”); and LA PLAYA CARMEL HOTEL, LLC (“La Playa”) (collectively, the “Parties”).
WHEREAS, Verizon commenced an action in the United States District Court for the Northern District of California captioned GTE Mobilnet of California Limited Partnership v. City of Carmel By-the-Sea, et al., Case No. 22-cv-00347-NC (N.D. Cal.) (the “District Court Action”), in which Verizon asserted claims against the City for alleged violations of the Telecommunications Act of 1996 (TCA) and an existing agreement between Verizon and the City, when the City purportedly failed to timely deliver a written denial notice of Verizon’s application to install and operate a wireless communications facility mounted to a replacement PG&E utility pole with support equipment placed and camouflaged on the ground adjacent to that utility pole located in the public right-of-way on the east side of Carmelo Street between Eighth & Ninth Avenues within the City (“Carmelo Application”), and in which Stop Cell Towers In Carmel Neighborhoods, Inc. (“SCTCN”) and La Playa appeared as Intervenor-Defendants; and WHEREAS, following the dismissal with prejudice of all Verizon’s claims in the District Court Action, Verizon filed an appeal in the United States Court of Appeals for the Ninth Circuit captioned GTE Mobilnet of California Limited Partnership v. City of Carmel-by-the-Sea, et al., Case No. 22-16153 (9th Cir.) (the “Merits Appeal”); and WHEREAS, following the District Court’s order denying the City's motion for attorneys’ fees, the City filed an appeal in the United States Court of Appeals for the Ninth Circuit from that order (the “Attorneys’ Fees Appeal”); and
WHEREAS, the Merits Appeal and the Attorneys’ Fees Appeal are referred to collectively in this Agreement as the “Litigation,” which expressly includes all claims, counterclaims, defenses, judgments, orders, and proceedings arising from or relating to the Merits Appeal and the Attorneys’ Fees Appeal; and
WHEREAS, the City, SCTCN, and La Playa have actively litigated and defended the claims advanced by Verizon in the Litigation, and have opposed the relief sought by Verizon and Verizon has opposed the relief sought by the City, SCTCN, and La Playa in the Litigation, including the City’s request for attorneys’ fees; and
ATTACHMENT 2
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SETTLEMENT AGREEMENT AND RELEASE
WHEREAS, Intervenor-Defendant SCTCN has represented SCTCN’s agreement to stipulate to the dismissal of the Litigation pursuant to Federal Rule of Appellate Procedure 42 and has filed the attached Certificate of Election to Windup and Dissolve on or about March 10, 2025 (Exhibit 1, hereto); and
WHEREAS, to avoid the additional expense of further litigation and find a compromise solution, the Parties have engaged in good-faith settlement negotiations and arrived at this Agreement, which will resolve the Litigation.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, each on its own behalf and on behalf of its respective successors and assigns, hereby agree as follows:
1. Conditions and Obligations.
(a) Stipulation of Dismissal. Within ten (10) days after execution of this Agreement by all Parties, the Parties shall cooperate with each other and with SCTCN in filing a stipulated dismissal pursuant to Federal Rule of Appellate Procedure 42 dismissing the Litigation in the United States Court of Appeals for the Ninth Circuit. The stipulated dismissal shall fully and finally resolve all claims and issues asserted in the Litigation as between the Parties (and including SCTCN). (b) Future Applications on the Existing Carmelo Application PG&E Pole. Verizon shall not submit any application to install and operate a small cell wireless communications facility in the public right-of-way on the existing PG&E pole at issue in the Carmelo Application. This provision shall also apply to any third party or affiliate seeking to install antennas or related equipment (other than fiber optic or other cable runs) at Verizon Wireless’s direction to be used by Verizon or an affiliate, but shall not prevent Verizon from submitting any other application to install and operate any wireless communications facility within the City of Carmelby-the-Sea, nor shall anything in this Agreement be construed to require the City to approve any such application.
2. Releases.
(a) In consideration of the mutual promises contained in this Agreement, and upon the occurrence of the event set forth in Subsection 1(a) of this Agreement, each Party, including any affiliates, successors or assigns thereof, irrevocably and unconditionally release and forever discharge the other Party, and each of its affiliates, successors, or assigns, of and from any and all claims, duties, causes of action, demands, obligations, liabilities, rights, damages, costs, attorney’s fees, or expenses of any kind, whether known or unknown, suspected or unsuspected, that
ATTACHMENT 2
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SETTLEMENT AGREEMENT AND RELEASE
arise in any way out of, relate to, or are in connection with the claims and counterclaims in the Litigation.
(b) Waiver of California Civil Code Section 1542. The Parties expressly acknowledge and agree that they may hereafter discover claims or facts in addition to or different from those that they now know or believe to exist with respect to the matters released herein, but that it is their intention fully, finally, and forever to settle and release all such matters, and all claims relating thereto, whether known or unknown, suspected or unsuspected.
Accordingly, each Party expressly waives and relinquishes any and all rights and benefits conferred by California Civil Code section 1542, which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
Each Party acknowledges that it may later discover facts different from or in addition to those it now knows or believes to be true, and agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding such different or additional facts.
(c) The foregoing release of claims shall not constitute a release of any claims or causes of action for any Party’s default under the terms of this Agreement. Nothing herein shall prevent or impair enforcement of rights and remedies in accordance with this Agreement.
3. No Admission
(a) Nothing in this Agreement shall constitute, or be considered as, an admission of liability or wrongdoing by any Party, or any agreement by any Party as to the validity of any of the positions advanced by any other Party in connection with or relating to the Litigation.
(b) This Agreement shall be deemed to fall within the protection afforded compromises and offers to compromise by state and federal rules of evidence. Neither this Agreement nor any part of it may be used in any way against any Party in any legal, equitable, or administrative action or arbitration, except as part of an action to enforce this Agreement.
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SETTLEMENT AGREEMENT AND RELEASE
4. Representations and Warranties.
(a) Verizon represents and warrants that:
(i) Verizon is a limited liability company validly existing and in good standing under the laws of the state of California and has all requisite corporate power and authority to execute and deliver this Agreement on its own behalf and on behalf of its affiliates and to perform its obligations hereunder; (ii) the execution, delivery and performance of this Agreement by Verizon will not result in any violation or conflict with the charter or by-laws of Verizon or any agreement, order, judgment, decree, statute, rule or regulation applicable to the Verizon; and
(iii) this Agreement is a valid and binding agreement of Verizon. (b) the City represents and warrants that:
(i) the City, as defined in this Agreement, is a municipal corporation validly existing and in good standing under the laws of the State of California. The City has all requisite power and authority to execute and deliver this Agreement on its own behalf and to perform its obligations hereunder; (ii) the execution, delivery and performance of this Agreement by the City will not result in any violation or conflict with the charter or by-laws of the City or any agreement, order, judgment, decree, statute, rule or regulation applicable to the City; and
(iii) this Agreement is a valid and binding agreement of the City. (c) La Playa represents and warrants that:
(i) La Playa is a limited liability company validly existing and in good standing under the laws of the State of California and has all requisite limited liability company power and authority to execute and deliver this Agreement on its own behalf and to perform its obligations hereunder;
(ii) the execution, delivery, and performance of this Agreement by La Playa will not result in any violation of, or conflict with, La Playa’s articles of organization, operating agreement, or any agreement, order, judgment, decree, statute, rule, or regulation applicable to La Playa; and (iii) this Agreement constitutes a valid and binding obligation of La Playa, enforceable in accordance with its terms.
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SETTLEMENT AGREEMENT AND RELEASE
(d) Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement and that it has not sold, assigned, transferred, conveyed, promised, or otherwise disposed of any of the claims, demands, obligations, or causes of action released by this Agreement.
(e) Each Party represents it is the true and lawful owner of all right, title, and interest in and to the respective claims, demands, liabilities, and causes of action being released hereby and that it has not transferred, assigned, or otherwise encumbered any of the matters released hereby or any part thereof. (f) Each Party acknowledges, represents and warrants that it has been fully advised by its attorney(s) concerning the execution of this Agreement, that it has fully read and understands the terms of this Agreement, and that it has freely and voluntarily executed this Agreement.
5. Costs and Expenses. The Parties understand and agree that each will bear, and be responsible for the payment of, its costs and expenses, including attorney’s fees and other litigation expenses, incurred in connection with the Litigation and the negotiation, preparation, execution, and implementation of this Agreement.
6. Entire Agreement. This Agreement represents the entire agreement between the Parties relating to the subjects explicitly set forth in this Agreement and supersedes any other oral or written agreements and understandings relating thereto.
7. Amendments and Waivers.
(a) No modification, amendment or waiver of any of the terms or provisions of this Agreement shall bind either Party unless such modification, amendment or waiver is in writing and has been executed by a duly authorized representative of the Party against whom such modification, amendment or waiver is sought to be enforced. (b) No delay or omission by either Party in exercising any right or power occurring upon any noncompliance or default by the other Party with respect to any of the terms and provisions of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants, conditions or agreements to be performed by the other will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or agreement contained in this Agreement.
8. Notices. All notices, requests or other communications in connection with or relating to this Agreement must be in writing and sent by (a) certified mail, with return receipt requested, or (b) Federal Express or other overnight service. A notice shall be deemed to have been delivered on the date that it was sent.
ATTACHMENT 2
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SETTLEMENT AGREEMENT AND RELEASE
All notices to Verizon under this Agreement will be sent to:
Verizon Wireless
Attn: Network Real Estate
180 Washington Valley Road
Bedminster NJ 07921
All notices to the City under this Agreement will be sent to:
Brandon Swanson, Acting City Administrator
Carmel-by-the-Sea
P.O. Box CC
Carmel-by-the-Sea, CA 93921
with a copy to:
Brian Pierik, City Attorney
Carmel-by-the-Sea
c/o Burke, Williams & Sorensen, LLP
1 California Street - Suite 3050
San Francisco, CA 94111
All notices to La Playa under this Agreement will be sent to:
La Playa Hotel
Camino Real at Eighth Ave
Carmel-by-the-Sea, CA 93921
with a copy to:
Travis Van Ligten
Rutan & Tucker
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
A Party may, by written notice, designate a different address for notices, requests or other communications or different or additional persons to be notified or to receive requests or other communications.
9. Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of California, without reference to its choice of law principles.
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SETTLEMENT AGREEMENT AND RELEASE
10. Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be an original and all of which together shall constitute one and the same instrument.
11. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties and does not create any rights in any third party.
12. Joint Work Product. The Parties acknowledge that this Agreement is the joint work product of the Parties, and that, accordingly, in the event of ambiguities in this Agreement, no inferences shall be drawn against either Party on the basis of authorship of this Agreement.
13. Captions. The Parties acknowledge that the captions in this Agreement have been inserted solely for convenience of reference and in no way define or limit the scope or substance of any provision of this Agreement.
14. No Warranties. Except as explicitly set forth in this Agreement, there are no representations, warranties, or inducements, whether oral, written, expressed, or implied, that in any way affect or condition the validity of this Agreement or alter its terms.
15. Execution as Condition Precedent. A condition precedent to the enforceability of this Agreement is the execution of this Agreement by all parties. [SIGNATURE PAGES FOLLOW]
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SETTLEMENT AGREEMENT AND RELEASE
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their duly authorized representatives.
GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, d/b/a Verizon Wireless By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
CITY OF CARMEL-BY-THE-SEA, CALIFORNIA
By: ______________________________
Name: Brandon Swanson
Title: Acting City Administrator
Date: _____________________________
LA PLAYA CARMEL HOTEL, LLC
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
Exhibit 1 to Settlement Agreement and Release
[see next page]
BA20250480112
Corporation
Corporation Name STOP CELL TOWERS IN CARMEL NEIGHBORHOODS, INC.
Entity No. 4786189
Election Details
The corporation has no members; the election was made by the board of directors of the corporation.
Required Statement
The corporation has elected to wind up and dissolve.
Signatory Authority
The undersigned is/are the: Chairperson of the board, president or vice president and the secretary, chief financial officer, treasurer, assistant secretary or assistant treasurer.
Signatures
I declare under penalty of perjury under the laws of the state of California that the information herein is true and correct of my own knowledge.
Secretary
Officer Title
Natasha Witt
Officer Signature
03/06/2025
Date
Chief Financial Officer
Officer Title
Mary Crowe
Officer Signature
03/06/2025
Date
Chief Executive Officer
Officer Title
Robert Kavner
Officer Signature
03/10/2025
Date
STATE OF CALIFORNIA
Office of the Secretary of State
CERTIFICATE OF ELECTION TO WIND UP AND
DISSOLVE - CA NONPROFIT CORPORATION OR
GENERAL COOPERATIVE
California Secretary of State
1500 11th Street
Sacramento, California 95814
(916) 657-5448
B3507-2860 03/10/2025 9:15 AM Received by California Secretary of State
For Office Use Only
-FILEDFile No.: BA20250480112
Date Filed: 3/10/2025
EXHIBIT 1
CITY OF CARMEL-BY-THE-SEA
City Council
Staff Report
August 3, 2026
ORDERS OF BUSINESS
TO: Honorable Mayor and City Council Members
SUBMITTED BY: Brandon Swanson, Acting City Administrator APPROVED BY: Brandon Swanson, Acting City Administrator SUBJECT: Provide direction to staff regarding the issuance of Notices of Non-Renewal for all Existing Mills Act Contracts within the City of Carmel-by-the-Sea
RECOMMENDATION:
Motion directing staff to issue notices of non-renewal for all existing Mills Act Historic Property Preservation Contracts within the City of Carmel-by-the-Sea in accordance with the terms of each contract and the California Government Code.
BACKGROUND / SUMMARY:
Background
The City currently has fifteen (15) active Mills Act Historic Property Preservation Contracts. A list of the existing contracts is included as Attachment 1.
At its October 6, 2025 meeting, City Council conducted a policy discussion regarding the future of the Mills Act Program. Following that discussion, Council expressed its desire to discontinue the City's existing Mills Act contracts through the non-renewal process established in each agreement. The October 6, 2025, Council discussion can be viewed here: https://youtu.be/mkMG6eFJaxA?t=5259
Because the October agenda was structured as a policy discussion rather than an action item, Council did not formally direct staff to issue notices of non-renewal.
Accordingly, this item has been agendized to allow Council to take that official action.
Discussion
The City's standard Mills Act contract (Attachment 2) provides that the agreement automatically renews each year unless either the City or the property owner provides written notice of non-renewal. The contract requires the City to provide notice at least sixty (60) days prior to the annual renewal date. The agreements further provide that, following issuance of a notice of non-renewal, the contract continues for the balance of its remaining term but ceases to automatically extend by an additional year.
All of the City's existing Mills Act contracts have an annual renewal date of January 1.
As a result, if Council provides direction at this meeting, staff will be able to issue all required notices well in advance of the contractual sixty-day deadline.
No contracts would terminate immediately as a result of this action. Rather, each contract would continue through its remaining term in accordance with its existing provisions, but would no longer receive the annual one-year extension provided under the automatic renewal clause.
Environmental Review
The requested action is not a project under the California Environmental Quality Act (CEQA) pursuant to Section 15378 of the CEQA Guidelines because it constitutes an administrative action directing staff to issue notices of non-renewal in accordance with existing contractual provisions.
FISCAL IMPACT:
There is no immediate fiscal impact associated with issuing the notices of non-renewal.
Any future fiscal effects associated with the expiration of the contracts would occur over time as individual agreements reach the end of their remaining terms.
PRIOR CITY COUNCIL ACTION:
October 6, 2025: City Council conducted a policy discussion regarding the future of the Mills Act Program. Following that discussion, Council expressed its desire to discontinue the City's existing Mills Act contracts through the non-renewal process established in each agreement.
ATTACHMENTS:
1. List of Approved Mills Act Contracts - updated 7-30-2026
2. Standard Mills Act Contract
Current
Property Owner (if
Address
Block and Lot
1. 010-191-005
Esperanza Carmel Commercial, LLC
N/A
Sundial Lodge
Monte Verde 2 NE of 7th Block 74, Lots 18, 20L’Auberge Carmel 2023015553 4/4/2023 5/23/2023 1/1/2023 1/1/2043 $850,000
2. 010-193-010 Strom & Miller N/A Enoch A. Lewis House Monte Verde 2 NE of 9th Block 94, Lot 18 2022050874 11/3/2022 12/2/2022 1/1/2023 1/1/2043 $182,450
3. 010-253-018 Ludwick N/A Frederick Ten Winkel
House
SEC San Antonio & 4thBlock: HH, Lot 28
2022050876 11/16/2022 12/2/2022 1/1/2023 1/1/2043 $485,000
4. 010-055-021 Prentiss-Mermer
N/A Marion Daniels Shand House Vizcaino 12 SW of Mountain View Block:
102, Lot 12 & 13 2022050875 11/3/2022 12/2/2022 1/1/2023 1/1/2043 $526,000
5. 010-286-015 Esperanza Carmel
Commercial, LLC
N/A Colonial Terrace Inn NEC 13th & San Antonio
Block: Y, Lot: 7, 9, 10, 12, 14, 16Colonial Terrace Inn/Carmel BeachHotel & Spa 2022050873 11/3/2022 12/2/2022 1/1/2023 1/1/2043 $3,545,959
6. 010-232-030 David DiGirolamo & Diana
Morshead
N/A Albert Henry Hill House Lopez St 3 NW of 4th Ave
Block: LL, Lot: ¼ N. of 7 & 9
2020011244 11/4/2019 3/5/2020 1/1/2020 1/1/2040 $1,471,272
7. 010-039-007 Sandra J. Markowski
N/A
Doll's House
NWC Santa Rita & Ocean AveBlock: 66, Lots: 2, 3, 4 (south part) 2017067462 12/5/2017 12/7/2017 1/1/2018 1/1/2038 $183,450
8. 010-154-005 Scott and Robbin
Lonergan
N/A Lloyd C. Miller Cottage NEC Dolores St & 12th Ave
Block: 131, Lot: 14
2016069522 11/4/2016 11/16/2016 1/1/2017 1/1/2037 $73,400
9. 010-115-006 Ken Rheaume N/A Francis Whitaker
Cottage
Vista Ave, 2 NW of Mission AveBlock: 4 ½, Lots: W. ½ of 17 & 19 2016069521 11/4/2016 11/16/2016 1/1/2017 1/1/2037 $81,020
10. 010-165-015
/ 010-165-
015
Brad Slingerlend and Anna Speers
Allison and Hal Johnson
Las Abuelas NWC of Santa Lucia & San Carlos St
Block: 143, Lots: 31, 33 and 35
2016069520 11/4/2016 11/16/2016 1/1/2017 1/1/2037 $359,669
11. 010-164-001
The Sharon B. Holtkamp and Kenneth W. Holtkamp AB Living Trust Jason and Yelena Rose
Ross E. Bonham House
SWC San Carlos St & 12th AveBlock: 137, Lot: 1
2016069519 11/4/2016 11/16/2016 1/1/2017 1/1/2037 $257,200 12 010-041-001 Charles Whittington N/A Florence Lockwood Studio/House
SWC Ocean & Forest AveBlock: 83, Lot: 1
2014064199 12/8/2014 12/22/2014 1/1/2015 1/1/2035 $45,250 13 009-164-008 Kim & Roy Sheingart N/A Kathryn Waite House NEC Carpenter & 5th Block: 2A, Lot: 14
2013078015 8/6/2013 12/31/2013 1/1/2014 1/1/2034 $123,500 14 010-287-006 Buff LaGrange N/A John Bathen House 2552 Santa Lucia Ave Block: Z, Lots: east part 14 & 16
2012062739 10/3/2012 10/12/2012 1/1/2013 1/1/2033 $315,284 15 010-108-012 Stephanie Ager Kirz Ann Liou Curtain Call Junipero Ave, 2 NW of 3rd Ave Block: 27 Lot: 15
2011066366 11/10/2011 11/18/2011 1/1/2012 1/1/2032 $187,786 16 010-108-007 Kim Griffin N/A Agnes Shorting House 3rd Avenue 2 NW of Junipero, Block 27, Parts 17, 19
2024000985 12/5/2023 1/11/2024 1/1/2025 1/1/2045 $282,750 17 009-423-001 Esperanza Carmel, LLC N/A Frank Lloyd Wright House/Cabin on the Rocks/Walker House
26336 Scenic Road, ADD 7 ALL OF BLK B18 & STRIP LYG BET BLK B18 & PACIFIC 2024032190 3/5/2024 9/10/2024 1/1/2025 1/1/2045 $1,343,655 18 010-147-008 Sentimental Journey LLC N/A Cypress Inn NE corner of Lincoln and 7th, Block 75, Lots 18, 20, 22
2024032192 5/7/2024 9/10/2024 1/1/2025 1/1/2045 $1,114,000 19 010-232-028 Lopez 5 NW, LLC N/A Cosmas House 0 Lopez 5 NW of 4th Block LL, Lot 14, pt lot 12
2024032191 3/5/2024 9/10/2024 1/1/2025 1/1/2045 $87,300 ATTACHMENT 1
CITY OF CARMEL-BY-THE-SEA
APPROVED MILLS ACT CONTRACTS
APN Original Contract
Property Owner
Historic Property Name
Document #
Date of Council Agreement
Date of Recording
Effective Date
Contract Term
Restoration/Maintenance Estimate (over 10 yrs)
Updated List as of 7/30/2026
RECORDING REQUESTED BY
CITY OF CARMEL-BY-THE-SEA
AND WHEN RECORDED MAIL TO
Carmel City Hall
Attn: Community Planning & Building
P.O. Box CC
Carmel-By-The-Sea, CA 93921 This space reserved for the Recorder’s use only
CITY OF CARMEL-BY-THE-SEA
MILLS ACT HISTORIC PROPERTY PRESERVATION CONTRACT
THIS AGREEMENT is made and entered by and between the CITY OF CARMEL-BY-THE-SEA a municipal corporation (hereinafter referred to as “City”), and PROPERTY OWNER (hereinafter referred to as “Owner”).
RECITALS
(i) California Government Code Section 50280, et seq. (known as the Mills Act) authorizes cities to enter into contracts with the owners of qualified historic properties to provide for their appropriate use, maintenance and restoration such that these historic properties retain their historic characteristics;
(ii) The Owner possesses fee title in and to that certain real property, together with associated structures and improvements thereon, located at ADDRESS (APN: 123-456- 789), Carmel-By-The-Sea, California, (hereinafter referred to as the “Historic Property”).
A legal description of the Historic Property is attached hereto, marked as “Exhibit A” and is incorporated herein by reference;
(iii) The property is identified as a historic resource on the City of Carmel-By-The-Sea’s Historic Inventory and Register of Historic Resources and is further described in the DPR 523A Form attached hereto, marked as “Exhibit B” and is incorporated herein by reference;
(iv) City and Owner, for their mutual benefit, now desire to enter into this Agreement both to protect and preserve the characteristics of historical significance of the Historic Property, as it exists at the date of this contract and as described in the City’s Register of Historic Resources and the National Register of Historic Places, and to qualify the Historic Property for an assessment of valuation pursuant to the provisions of Article 1.9 (commencing with section 439) of Chapter 3 of Part 2 of Division 1 of the California Revenue and Taxation Code.
ATTACHMENT 2
NOW, THEREFORE, City and Owner, in consideration of the mutual covenants and conditions contained herein, do hereby agree as follows:
1. INCORPORATION OF RECITALS. All recitals are incorporated into this Agreement.
2. EFFECTIVE DATE AND TERM. This Agreement shall be effective and commence on the date the Agreement is signed by the City, unless otherwise indicated by the County of Monterey, and shall remain in effect for a minimum term of ten (10) years thereafter.
3. AUTOMATIC RENEWAL. Each year, upon the anniversary of the effective date of this Agreement (hereinafter referred to as “annual renewal date”), one (1) year shall be added automatically to the term of this Agreement, unless timely notice of nonrenewal is given as provided in paragraph 4 of this Agreement. The total length of the contract shall not exceed twenty (20) years.
4. NOTICE OF NONRENEWAL. If City or Owner desires in any year not to renew this Agreement, that party shall serve written notice of nonrenewal in advance of the annual renewal date of this Agreement as follows: Owner must serve written notice of nonrenewal at least ninety (90) days prior to the annual renewal date; City must serve written notice of the nonrenewal at least sixty (60) days prior to the annual renewal date.
If notice is not received, the Agreement shall automatically be renewed for another year.
Upon receipt by Owner of a notice of nonrenewal from the City, Owner may make a written protest. At any time prior to the annual renewal date, City may withdraw its notice of nonrenewal.
5. EFFECT OF NOTICE OF NONRENEWAL. If either City or Owner serves timely notice of nonrenewal in any year, and this contract is not renewed, this Agreement shall remain in effect shall remain in effect for the balance of the period remaining since the original execution or the last annual renewal date.
6. FEES. The City may require that the Owner(s) of the Historic Property pay a fee that shall not exceed the reasonable cost of providing services, such as inspections, pursuant to Government Code Section 50281.1 (Article 12 of Chapter 1 of Part 1 of Division 1 of Title 5 of the Government Code), for which the fee is charged.
7. VALUATION OF PROPERTY. During the term of this Agreement, Owner is entitled to seek assessment of valuation of the Historic Property pursuant to the provisions of Chapter 3 of Part 2 of Division 1 of the California Revenue and Taxation Code.
8. PRESERVATION OF PROPERTY. Owner shall preserve and maintain the characteristics of historical significance of the Historic Property and agrees to complete rehabilitation and/or maintenance activities as defined in the Rehabilitation/Restoration and Maintenance Plan attached as “Exhibit C”. Requests for revisions to the Maintenance and ATTACHMENT 2
Rehabilitation plan shall be reviewed by the Historic Resources Board prior to implementation. In addition, Owner shall comply with the terms of the City’s Historic Preservation Ordinance (CMC 17.32). Owners shall not be permitted to further impede any view corridor with any new structure, including but not limited to walls, fences, or shrubbery, so as to prevent the viewing of the Historic Property from the public right-ofway.
9. RESTORATION OF PROPERTY. Owner shall, where necessary, restore and rehabilitate the Historic Property to conform to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation, U. S. Secretary of the Interior’s Standards for Rehabilitation, the State Historical Building Code, and the City of Carmel-by-the-Sea, all as amended.
10. INSPECTIONS. Owner shall allow periodic examinations, at least every five (5) years, with reasonable notice thereof, of the interior and exterior of the Historic Property by representatives of the County of Monterey Assessor and the City of Carmel-By-The-Sea as may be necessary to determine Owner’s compliance with the terms and provisions of this Agreement. The City will coordinate inspections by such other agencies that have jurisdiction and will keep them to the minimum necessary to determinate such compliance.
11. PROVISION OF INFORMATION. Owner shall furnish City with any and all information required by City, in order to determine the eligibility of the Historic Property, and that City deems necessary or advisable to determine compliance with the terms and provisions of this Agreement.
12. ANNUAL REPORT. Owner shall submit an annual report at least 90 days prior to each annual renewal date (October 1st) to the Department of Planning and Building specifying all work that has been done to maintain and preserve the historic resource over the preceding year in compliance with the approved maintenance plan.
13. CANCELLATION. The City has the right to cancel the contract if the owner allows the property to deteriorate to the point that it no longer meets the standards for a qualified historical property. The City also has the right to cancel this contract if the owner(s) breaches the provisions of paragraph’s # 8, 9, 10 or 12 of this Agreement after the City has provided reasonable notice of any failure to comply with the agreement, and a public hearing. Notice of the hearing shall be mailed to the last known address of each owner of the property, with the notice conforming to the provisions of Government Code section 6061., If after notice and a hearing, the contract is cancelled, termination of the Agreement is immediate, and the owner shall pay a cancellation fee equal to 12.5 percent of the current fair market value of the property, as determined by the Monterey County Assessor as though the property were free of the contractual restriction. The cancellation fee shall be paid to the Assessor, at the time and in the manner that the Assessor shall prescribe. City’s right to cancel this Agreement pursuant to this paragraph ATTACHMENT 2
shall in no way limit or restrict its rights or legal remedies arising from City’s Historic Preservation Ordinance and Municipal Code.
14. ENFORCEMENT OF AGREEMENT. In lieu of and/or in addition to any provisions to cancel this Agreement as referenced herein, City may specifically enforce, or enjoin the breach of, the terms of this Agreement.
15. WAIVER. City does not waive any claim or default by Owner if City does not enforce or cancel this Agreement. All remedies at law or in equity, which are not otherwise provided for this Agreement or in City’s regulations governing historic properties are available to City to pursue in the event there is a breach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.
16. BINDING EFFECT OF AGREEMENT. Owner hereby subjects the Historic Property to the covenants, reservations and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, reservations, and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner’s successors and assigns in title or interest to the Historic Property. A successor in interest shall have the same rights and obligations under this Agreement as the original owner who executed the Agreement.
Each and every contract, deed or other instrument hereinafter executed, governing or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument.
City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that it restricts development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the cultural and historic characteristics and significance of the Historic Property for the benefit of the public and Owner.
17. NOTICE. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below, by personal delivery or United States mail, postage prepaid, addressed as follows:
City: Carmel-By-The-Sea
Community Planning & Building Department
Attn: Community Planning & Building Director
P.O. Box CC
Carmel-By-The-Sea, CA 93921
ATTACHMENT 2
Owner: Name
Address
City, State, Zip
Notice to successors in interest to either party shall be sent to the appropriate address.
In the case of future Owner(s) of the Historic Property, notice shall be sent to the address on file with the county property tax office in power at the time.
18. RECORDATION. No later than twenty (20) days after the parties execute and enter into this Agreement, the City shall cause this Agreement to be recorded in the Office of the County Recorder of the County of Monterey. From and after the time of the recordation, this Agreement shall impart a notice thereof to all persons as is afforded under state law.
19. STATE LAW. The Owner or agent of Owner shall provide written notice of this Agreement to the State Office of Historic Preservation within six (6) months of the date of this Agreement.
20. GOVERNING LAW; VENUE. This Agreement shall be constructed and governed in accordance with the laws of the State of California. Should either party to this agreement bring legal action against the other, the case shall be handled in Monterey County, California and the party prevailing in such action shall be entitled to a reasonable attorney fee which shall be fixed by the judge hearing the case and such fee shall be included in the judgment together with all costs.
21. AMENDMENTS. This agreement may be amended in whole or in part, only by a writtenrecorded instrument executed by the parties hereto.
22. DESTRUCTION OF PROPERTY; EMINENT DOMAIN; CANCELLATION. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the original fabric of the structure must be preplaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the City Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled.
No cancellation fee pursuant to Government Code Section 50286 shall be imposed if the Agreement is cancelled pursuant to this paragraph. Such Agreement shall be null and void for all purposes of determining the value of the property so acquired.
23. INDEMNIFICATION. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents and employees from any actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any ATTACHMENT 2
federal, state or local government agency, arising out of or incident to the direct or indirect use, operation, or maintenance of the Historic Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner’s activities in connection with the Historic Property; and (iii) any restriction on the use of development of the Historic Property, from application or enforcement of the City’s Municipal Code, or from the enforcement of this Agreement.
This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys’ fees, and related costs or expenses, and the reimbursement of the City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them. Owner’s obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.
24. SEVERABILITY. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.
IN WITNESS THEREOF, the City and Owners have executed this Agreement on the day and year written above.
CITY OF CARMEL-BY-THE-SEA:
By: _______________________ Date: __________________
Name: Richard L. Rerig (“Chip”)
Title: City Administrator
PROPERTY OWNER(S):
By: __________________________ Date: ___________________ Name:
Title: Property Owner
By: __________________________ Date: ___________________ Name:
Title: Property Owner
ATTACHMENT 2
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
DPR 523A FORM
EXHIBIT C
REHABILITATION/RESTORATION AND MAINTENANCE PLAN
ATTACHMENT 2