HomeMy WebLinkAboutArnel Retail Group - 1999-10-04 10/01/99 14:35 FAX 1 % 4 557 3129 ARYELDEVELOPHE ' 1600,1
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AGREEMENT BY AND BETWEEN
THE91TY OF 1IUNTINGTOIY BEACH AND ARNEL RETAIL GROUP
y l
This Agreement ("Agrcement'D is made and.entered into this day of
1999, by and between the City of Huntington Beach ("City"), a California
municipal corporation, and Amel Retail Group ("ArneI"), a California corporation. The
aforementioned entities may sometimes hereir_after be singularly referred to as a "Party,"or
collectively referred to as "thc Parties."
RECITALS
On December 14, 1998, the City approved General Plan Amendment No. 97-1, Zoning
Map Amendment No. 97-1, and Environmental Impact Report No. 97-1, relating to changing the
zoning and general plan designations of the Crest View School site("the Site"), located at 18052
Lisa Lane in the City of Huntington Beach, to allow commercial development on the site; and
On April 22, 1999, the City approved Conditional Use Pen-nit No. 97-70, Variance No.
98-18,Tentative Parcel Map No. 97-161, and Design Rcview Board No. 97-8 with findings and
conditions of approval; and
i
An Initiative Petition ('clue Lnitiative")to adopt an ordinance to change the genera]plan
I
and zoning designations of the Site, to prohibit commercial development and allow low density
residential development has been certified by the City Clerk of the City and will be considered j
I
by the City Council of City at its meeting of October 4, 1999; and
On August 30. 1999, Arnel filed a lawsuit against the City and others, entitled Arnel
Retail Group, Inc., v. Connie Brockway, et al., OCSC No. 813968 ("the Lawsuit'), which alleges
that the Initiative is invalid and illegal; and
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The Parries have determined that due to the concerns raised by the City and others, the
Parties wish to providt• .for the unimpeded and effective consideration of the Initiative by the
voters of the City,
AGREEMENT
NOW, THEREFORE, based upon the representations set forth in the foregoing Recitals
and for good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties do hereby agree as follows:_
1. No Further Action Regarding Development of the Site. In order that the
Initiative shall be fully and effectively considered by the voters of the City,Amel on behalf of
itself, its heirs, successors and assigns, shall not seek issuance of any development permits,
including but not limited to demolition permits, grading permits, or building permits from the
City regarding the development of the Site unless and until the Initiative has been considered by
the voters of the City, provided an election thereof has been called for March 7, 2000. This
agreement shall not prevent Arnel from administratively processing such permits,provided that
Amel shall not seek City issuance of said permits. t A4n t oAw 46. Ma►'�-�- e�ec�io� .
2. No Prosecution of Lawsuit Until After Election. The Lawsuit shall not be brought
to ti;al by A nel nor shall Arr:el othe_m ise interfere xvith the holding.of the election prior to said
election provided the election is called for March 7,2000.
3. No Admission of Liab ility. This Agreement is not intended as, and shall not be
construed as, an admission by any Party against any other Party that the other Party has valid
claims or defenses.
4. Captions. The captions of this Agreement are for purposes of reference and shall
not limit or define the meaning of the provision of the Agreement.
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• 10/04/99 14:36 F.,kX 1 jJ 557 3129 ARNELDEVE LOP IfEN* Q�003
5. Qoveining Law; This Agreement shall be governed by and construed in
accordance with the laws of the State of California-
G. Parties Have Not Transferred Riehts. Each Party hereto represents and warrants
to each other Party that it is the holder ofthe rights which are being settled, compromised, or
restricted as part of this Agreement, and that it has not assigned or transferred to any other Party
any of such rights.
7. Litigation Expenses. In the event of lidgation ansing,to enforce the provisions of
this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees,
expert witness fees, and costs in addition to any other remedy it may obtain.
8. ftin _ This Agreement has been negotiated and the Parties have cooperated in
the drafting and preparation of this Agreement. It shall not be construed against any of the
Parties in the event of ambiguity.
9. Specific Performance. The Parties agree that they shall have the right to compel
specific performance or obtain other appropriate equitable relief to enforce the commitments as
set forth in this Agreement. Each Party'agrees that if it violates any of said provisions, any other
Party shall be entitled to injunctive relief to prohibit the violation of said provisions, and the j
Parties further stipulate and agree that the issuance of a rcmoorary restraining order, a
preliminary injunction, and a permanent injunction to prevent the violation would be legally
appropriatc and warranted, inasmuch.as.the non-defaulting Party or Panics would be irreparably
i
injured and harmed by non-compliance with the provisions of this Agreement, and that the non-
defaulting Party or Parties would have no adequate remedy at law if the provisions of this
Agreement are violated.
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10. Reliance Upon Legal Counsel. Each Party warrants and represent that to
executing this.Agreement, they have relied on legal advice from the attorney of their choice:that
the terms of this Agreement and its consequences have been completely read and explained to
each Party by that attorney, and that each'Party fully understands the terms of this Agreement
•
11. Entirc Agreement. This Agreement represents the entire.agreement between the
Parties concerning the subject matter hereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreernent to be executed
by-their.authorized officers on the date first above written.
ARNEL RETAIL GROUP, INC. CITY OF HUNTINGTON BEACH,
a California corporation a ornia mun'cipal corporation
By. _
Its: Mayor
ATTEST
By
Its:
City Clerk lZ /
APPROVED AS TO FARM
C
,.
. . . ,. . �. . ity Attorney',; .
REVIEWED AND APPROVED:
City Administrator
I
•
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(4) • 10/04/99 - Council/#ncy.Agenda - Page 4
The City Council and the Redevelopment Agency of the City of Huntington Beach
will regularly.convene in joint session for the purpose of considering the following
City Council-Redevelopment Agency Agenda Items.
The.Huntington Beach Parking Authority, Civic Improvement Corporation, and the Huntington
Beach Public Financing Authority are also agencies on which Council serves as members.
On each Agenda these Agencies may have items scheduled.
7:00 P.M. -Council Chamber
Reconvene City Council/Redevelopment Agency Meeting
** The City Attorney Shall Determine If Any Actions Taken By The City Council or
Redevelopment Agency In Closed Session Shall Require A Reporting On Those Actions .
As Required By Law (Government Code §54957.1(a) (3) (B)).
(1) Report of Action Taken — Oct. 4 1999 Closed Session — Arnel V. City
of Huntington Beach — agreement approved 6-0-1 (Sullivan absent).
(2) Report of Action Taken Pursuant to Government Code Section 54957.1 — October 4, 1999,
City Council Closed Session— Michael Willett vs. City (120.80)
On Monday, May 3, 1999, the City Council convened in closed session to discuss the matter of
Michael Willett v. City of Huntington Beach, Workers Comp Case No. AHM 0069830.
City Council approved settlement of admitted worker's compensation claim by way of Stipulation
with Request for Award and Award in the amount of$57,502.50 for a 59% permanent disability
with future medical care left open. In addition, an alternative proposal is to be offered the
claimant of a Compromise and Release in the amount of$65,000 to close out the City's
exposure for future medical care. The Council voted as follows: 7 ayes, 0 Nos; 0 Abstentions.
(3) Report of Action Taken - Oct. 4, 1999 Closed Session — Cal Compact
Landfill Litigation — Council voted 6-0-1 (Sullivan absent) to reject the
settlement offer.
(4) Report of Action Taken — Oct. 4, 1999 Closed Session — City of
Huntington Beach v. Federal Insurance Company, et. al..- Council voted
6-0-1 (Sullivan absent) to enter into a settlement agreement with Federal
Insurance Company referring the pending lawsuit to one day arbitration to
be paid for by Federal Insurance and limiting damages to no more than
$60,871.60.
Roll Call Julien, Bauer, Garofalo, Green, Dettloff, Harman, Sullivan
[Present— Sullivan absent]
Flag Ceremony and Pledge of Allegiance— Huntington Beach Police Department Ceremonial
Detail
5 10/04/99 - Council/ nc Agenda - Page 5
O � Y 9 9
Invocation — Huntington.Beach Police Department Chaplain, Pastor Drew Lockerbie, Central
Baptist Church, Huntington Beach.
City Clerk Announces Late Communications Which Pertain to Items on the Agenda
[City Clerk announced Late Communications related to the Study Session,
Closed Session (Arne/ v. City), and to items on the 7:00 p.m. portion of the
agenda--D-1, D-2, F-1, F-2, F-3, H-2a, H-2b, and Revised Agenda Page
17.]
Presentation — By Mayor Peter Green and Police Chief, Ron Lowenberg, of a Proclamation to
Nicholas Ekovich, Huntington Beach Police Officer, proclaiming October4, 1999, Nicholas
Ekovich Day in the City of Huntington Beach.
(20) • . 10/04/99 - Council/*ncy Agenda - Page 20
H-2.(a)Submitted by'Council/Agency Mayor Pro Teen Dave Garofalo
(City Council) Reconsideration of Motion That was Passed at the 9/20/99 Council
Meeting to Not Adopt Resolution of Intent No. 99-75 (Intent to Vacate an Easement)
Portion of the Alley Bounded by Adams Avenue, Loma Avenue, Park Street and Main
Street (800.50)
Communication from Mayor Pro Tern Dave Garofalo submitting the following: Statement
of Issue: At the September 20, 1999 City Council meeting, the City Council voted 6-1
(Dettloff, No) to not adopt Item E-20, Resolution of Intent No. 99-75 to vacate a portion of
the alley bounded by Adams Avenue, Park Street and Main Street (Attachment No. 1).
Adopting this resolution would have provided for the scheduling of a public hearing on
October 18, 1999 regarding the intent to vacate the alley (Attachment No. 2)
Based on further consideration of this issue and public comments received (Attachment
No. 3), 1 would like to request that the City Council reconsider its decision at the next
meeting on October 4, 1999.
** Transmission from the City Clerk transmitting minutes of the 8/2/99 Council meeting and
material from Jeanette Clapp regarding the proposed vacation.
Recommended Action: Motion to:
1. Approve motion to reconsider the 9/20/99 City Council action denying adoption of
Resolution No. 99-75.
[Approved 5-1-1 (Harman NO; Sullivan absent)]
2. Hold further CounGil diSGUssinn a Resolutiono intent No. Q�975.
3. Motion to adopt Resolution of Intent No. 99-75—A Resolution of the City Council
of the city of Huntington Beach Declaring Intent to Vacate an Easement for Public
Street Purposes Over a Portion of the Alley Located North of Loma Avenue, South
of Adams avenue, East of Main Street and West of Park Street." As amended to
set the public hearing on said vacation for November 1, 1999.
[Adopted 5-1-1 (Harman NO; Sullivan absent)]
Communication from Co unGilmemher Dave Garofalo submitting the fnllo ding
Statement of Issue: Wee have finally4noved ttn_�.vard a Felatffionship with the potential
tenant at the Crest View abandoned snhnnl cite to rnnnerate with the City and wor_ii;� te land use issues regarding Cres
toward a March election
View.
Recommended Action:Motion to
DrreGtthe Mayor to se—la lettef to L'�v-po ice. A nel and C T O P to both drop their la
suits sub;eGt W he Iand use-issue, `ielirle+inn-of the InitT ie, etc., and wc)rk toierrl.
resolution of their rlifferenGes through the elertien +Ac�o-ve-
CITY OF HUNTINGTON BEACH
Inter-Department Communication
TO.: Honorable Peter Green, Mayor, and
Members of the City Council
FROM: Gail Hutton, City Attorney
DATE: October 4, 1999
SUBJECT: Addition of Arnel Matter to closed session agenda
for 10./4/99 •
Due to the late submissfon of a.potential settlement agreement to the City Attorney's Office, it is
necessary to add the matter of Arnel v. City to the closed session agenda for tonight's City
Council meeting.
PROPOSED MOTIONS
1. That pursuant to_Government Code Section 54954.2(b), and the submission of a potential
settlement offer to the Office of the City Attorney on October 4, 1999, the City Council
finds that there is a need to take immediate action pn the matter of Arnel v. City, OCSC
Case No. 81 38 68, and that the need to take action came to the attention of the City
Council subsequent to the posting of the Agenda. -
2. That the matter of Arnel v. City of Huntington Beach, OCSC Case No. 81 38 68, be
added to the Agenda of tonight's City Council meeting for closed session discussion.
GAIL HUTTON
City Attorney
c: Ray Silver; City Administrator
Melanie Fallon, Assistant City Administrator
4/s:4-99Memo:M&CC 1004
• Approved as an•ption to the Ralph M. Brown Act
Subject: Arnel v. City of Huntington Beach
GAIL HUTTON, City Attorney
STATEMENT FOR MAYOR PRIOR TO CLOSED SESSION
ACTION OF CITY COUNCIL
Date: October 4, 1999
1: X MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a)TO
CONFER WITH ITS ATTORNEY REGARDING PENDING LITIGATION WHICH HAS BEEN INITIATED FORMALLY
AND TO WHICH THE CITY IS A PARTY. (CHECK ONE.)
X The title of the litigation is Arnel V. City Of Huntington Beach,
Orange County Superior Court Case No. 81 38 68
Identification of such litigation would jeopardize the city's ability to effect service of process upon one or more
unserved parties; or
Identification of such litigation would jeopardize the city's ability to conclude existing settlement negotiations to
its advantage.
2. MOTION TO RECESS TO CLOSED SESSION TO CONFER WITH ITS CITY ATTORNEY REGARDING PENDING
LITIGATION PURSUANT TO GOVERNMENT CODE SECTION:
54956.9(b)(3)(A) (Facts and circumstances that might result in litigation against the local agency but which
the local agency believes are not yet known to a potential plaintiff or plaintiffs,which facts
and circumstances need not be disclosed.)
Number of Potential Cases
54956.9(b)(3)(B) (Facts and circumstances, including, but not limited to, an accident, disaster, incident,'or
transactional occurrence that might result in litigation against the agency and that are
known to a potential plaintiff or plaintiffs,which facts or circumstances shall be publicly
stated on the agenda or announced.)
54956.9(c) (Based on existing facts and circumstances,the legislative body of the local agency has
decided to initiate or is deciding whether to initiate litigation.)
Number of Potential Cases
3. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.8 TO GIVE
INSTRUCTIONS TO THE CITY'S NEGOTIATOR, , REGARDING NEGOTIATIONS WITH
- CONCERNING THE PURCHASE/SALE/EXCHANGE/LEASE OF THE PROPERTY LOCATED AT
Instruction will concern: Price Terms of Payment Both
4. MOTION TO RECESS TO CLOSED SESSION TO MEET WITH ITS DESIGNATED REPRESENTATIVES
REGARDING LABOR RELATIONS MATTERS PURSUANT TO GOVERNMENT CODE SECTION 5495L6,
Agency Negotiator:
Name cn
�] — J
Employee Organizations -
Unrepresented Employees
5. MOTION TO RECESS TO CLOSED SESSION TO CONSIDER PERSONNEL MATTERS PURSUANT l O Lr
GOVERNMENT CODE SECTION 54957.
6. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 5495b':�!TO1vlEET
WITH AN APPLICANT FOR A CITY LICENSE AND THE APPLICANT'S ATTORNEY.
A
7. MOTION TO RECESS TO CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54957 TO MEET
WITH THE CHIEF OF POLICE REGARDING MATTERS OF PUBLIC SECURITY.
VOTE:
`� i •
HO
14
CITY OF HUNTING'TON BEACH
2000 MAIN STREET CALIFORNIA 92648
OFFICE OF THE CITY CLERK
CONNIE BROCKWAY
CITY CLERK
November 12, 1999
Mr. Tom Love
Arnel Group
950 South Coast Drive#200
Costa Mesa, California 92626
Dear Mr. Love:
Pursuant to our telephone conversation last week you requested that if you were unable
to stop by my office that I forward you a copy of the faxed agreement so that you can
affix original signatures.
Enclosed is a copy of the agreement between the City of Huntington Beach and Arnel
Retail Group (("Arnel"). Please sign and return to this office as soon as possible.
Connie Brockway, CIVIC
City Clerk
CB:jc
Agreement
CC: Melanie Fallon, Assistant City Administrator
Gail Hutton, City Attorney
G:followup/j camel.doc
(Telephone:714-536-5227)
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Huntington Beach, CaCfornia
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J� > City of Huntington Beach
�— P. O. Box 190 -2000 Main Street
Huntington Beach, California 92648
HUNTINGTON BEACH
From the desk of: Connie Brockway
City Clerk
Telephone: (714) 536-5404
Fax: (714) 374-1557
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MEETING ASS4WNCE NOTICE - AMERICANS WITF ABILITIES ACT / /
In accordance with the Americans with Disabilities Act the following services are a ilable to members of our
community who require special assistance to participate in City Council and Redevelopment Agency meetings. If you
require, American sign language interpreters, a reader during the meeting, and/or large print agendas,to make
arrangements, please call: Office of the City Clerk(714)536-5227. To make arrangements for an assisted
listening system (ALD)for the hearing impaired, please call: Building Maintenance Department(714)536-5534.
72 hours prior notification will enable the city to make reasonable arrangements to ensure accessibility to a meeting.
REVISED ACTION
AGENDA
(Page 5, 6, 15, 17)
CITY COUNCIUREDEVELOPMENT AGENCY
CITY OF HUNTINGTON BEACH
MONDAY, OCTOBER 4, 1999
5:00 P.M. - Council Chamber
7.00 P.M. - Council Chamber
Civic Center, 2000 Main Street
Huntington Beach, California 92648
5:00 P.M1-Council Chamber
Call City Council/Redevelopment Agency Meeting To Order
Roll Call Julien, Bauer, Garofalo, Green, Dettloff, Harman, Sullivan
[Present— Bauer arrived at 5.08 p.m.,- Harman arrived at 5.25 p.m.,,
Sullivan absent]
Public Comments Regarding Study Session & Closed Session Agenda Items
[None]
(City Council) Study Session — Bolsa Chica Steering Committee Overview of the Bolsa
Chica Wetlands Restoration Program (120.25) (Material to be available at meeting)
[Presentation made by Mike McCarthy and Chris Webb, Moffatt & Nichol;
Pam Castens, Army Corps of Engineers; Bob Hoffman, U.S. Marine
Fisheries Service; .Melanie Denninger, Calif. Coastal Conservancy; Jim
Trout, Dwight Sanders, Rick Ludlow, and Mary Bergen, Calif. State Lands
Commission. Slide report presented.]
Call Closed Session Of City Council/Redevelopment Agency
[Motion to add closed session item to the agenda subsequent to agenda
posting: Recommended Action. Motion to: Make a determination that the
need to take action on the closed session item of Amel v. City of
Huntington Beach, Orange County Superior Court Case No. 8138 68
arose subsequent to the agenda being posted as specified in Government
Code Section 54954.2(b)(2) - approved 6-0-1 (Sullivan absent)]
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% 1 714 557 3129 AELDEVELOPMENT _ [g�001
V
AGREEMENT BY AND BETWEEN
THE;CITY OF HUNTINGTON BEACH AND ARNEL RETAIL GROUP I
This Agreement ("Agreement') is made and entered into this `f day of 7
1999, by and between the City of Huntington Beach ("City'), a California
municipal corporation, and Amel Retail Group ("ArneI"),a California corporation. The
aforementioned entities may sometimes hereinafter be singularly referred to as a"Party,"or
collectively referred to as "the Parties."
RECITALS
On Deccnnber.14, 1998, the City approved General Plan Amendment No. 97-1,Zoning
Map Amendment No. 97-1, and Environmental Impact Report No. 97-1, relating to changing the
zoning and general plan designations of the Crest View School site ("the Site"), located at 18052
Lisa Lane in the City of Huntington Beach, to allow commercial development on the site; and
On April 22, 1999, the City approved Conditional Use Permit No. 97-70, Variance No.
98-18,Tentative Parcel Map No. 97-161, and Design Rcview Board No. 97-8 with findings and
conditions of approval; and
An Initiative Petition ("the Initiative") to adopt an ordinance to change the general plan
and zoning designations of the Site, to prohibit commercial development and allow low density
residential development has been certified by the City Clerk of the City and will be considered
by the City Council of City at its meeting of October 4, 1999; and
On August 30, 1999, Amel filed a lawsuit against the City and others, entitled Arnal
Retail Group, Inc., v. Connie Brockway, et al., OCSC No, 813868 ("the Lawsuit"), which alleges
that the Initiative is invalid and illegal; and
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The Parties have determined that due to the concerns raised by the City and others,the
Parties wish to provide .for the unimpeded and effective consideration of the Initiative by the
voters of the City,
AGREEMENT
NOW,THEREFORE, based upon the representations set forth in the foregoing Recitals
and for good and valuable consideration,the receipt and adequacy of which is hereby
acknowledged, the Parries do hereby agree as follows:
I. No Fuxther Action Regarding
DeveloRment of the Site. In order that the
Initiative shall be_fully and effectively considered by the voters of the City,Amel on.behalf of
itself, its heirs, successors and assigns, shall not seek issuance of any development permits,
including but not limited to demolition permits, grading permits,or building permits from the
City regarding the development of the Site unless and until the Initiative has been considered by
the voters of the City, provided an election thereof has been called for March 7, 2000. This
agreement shall not prevent Arnel from administratively processing such permits, provided that
Amel shall not seek City issuance of said permits. tAw t cA&I
2. No Prosecution of Lawsuit Until After Election. The Lawsuit shall not be brought
to trial by Amel nor shall Amel otherwise interfere with the holding of the election prior to said
election provided the election is called for March 7,2000.
3. No Admission of Liability. This Agreement is not intended as, and shall not be
construed as, an admission by any Party against any other Party that the other Party has valid
claims or defenses.
4. Captions. The captions of this Agreement are for purposes of reference and shall
not limit or define the meaning of the provision of the Agreement-
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5. Goveming_Law. This Agreement shall be governed by and construed in-
accordance with the laws of the State of Califomia_
6. Parties Have Not Transferred Ri ahts. Each Party hereto represents.and warrants
to each other Party that it is the holder of the rights which are being settled, compromised, or
restricted as part of this Agreement, and that it has not assigned or transferred to any other Party
any of such rights.
7. Litigation Expenses. In the event of litigation arising to enforce the provisions of
this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees,
expert witness fees, and costs in addition to any other remedy it may obtain.
8. Draftin _ This Agreement has been negotiated and the Parties have cooperated in
the drafting and preparation of this Agreement. It shall not be construed against any of the
Parties in the event of ambiguity.
9. Specific Performance. The Parties agree that they shall have the right to compel
specific performance or obtain other appropriate equitable relief to enforce the commitments as
set forth in this Agreement. Each Party agrees that if it violates any of said provisions, any other
Party shall be entitled to injunctive relief to prohibit the violation of said provisions, and the
Parties further stipulate and agree that the issuance of a temporary restraining order, a .
preliminary injunction, and a permanent injunction to prevent the violation would be legally
appropriate and warranted, inasmuch.as the non-defaulting Party or Parties would be irreparably
injured and harmed by non-compliance with the provisions of this Agreement, and that the non-
defaulting Party or Parties would have no adequate remedy at law if the provisions of this
Agreement are violated.
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10. Reliance Upon Legal Counsel. Each Party warrants and represent that in
executing this Agreement,they have relied on legal advice from the attorney of their choice,that
the terms of this Agreement and its consequences have been completely read and explained to
each Party by that attorney, and that eaeb Party.fully understands the terms of this Agreement.
11. Entire ASEcement. This Agreement represents the enure agreement between the
Parties concerning the subject matter hereof.
IN WITNESS WHEREOF,the Patties hereto have caused this Agreement to be executed
by their authorized officers on the date first above written.
ARNEL RETAIL GROUP, IN CITY OF HUNTINGTON BEACH,
a California corporation a California municipal corporation
By:
Mayor
ATTEST
By:
Its: �^
G City Clerk
APPROVED AS TO FORM:
City Attomey
REVIEWED AND APPROVED:
City Administrator
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