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HomeMy WebLinkAboutBrookhurst & Adams LLC - 2006-07-20• J� CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH, City Attorney DATE: July 20, 2006 SUBJECT: Brookhurst & Adams, LLC v. City of Huntington Beach Attached please find a copy of the Closed Session report from the June 19, 2006 City Council meeting, at which time the City Council authorized settlement of the Brookhurst & Adams case by way of Brookhurst & Adams paying the City $71,862.82, which is a $38,437.18 reduction from the original fee of $110,300. Plaintiffs have accepted this offer, and we have prepared the enclosed Settlement Agreement that requires the Mayor's signature. I would appreciate if you would obtain the Mayor's signature on two original agreements. You should keep one agreement and return the second to our office. We will be exchanging counterpart signatures with Plaintiff and return to you a second original executed by Plaintiff and their attorney. Please destroy the earlier version of the settlement agreement. It provided the City would ���� L 4 refund $38,437.18, based upon the incorrect assumption the City already had deposited the original $110,300 fee. If you have any questions, please contact Scott Field, Assistant City Attorney at extension 5662. JENNIFER McGRATH City Attorney 3210 SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF BROOKHURST & ADAMS, LLC AND DEFENDANT CITY OF HUNTINGTON BEACH THIS SETTLEMENT AGREEMENT AND RELEASE is entered into by and between the Plaintiff, Brookhurst & Adams, LLC ("B & A") and Defendant, City of Huntington Beach ("City"). B & A and the City shall be referred to collectively as the "Settling Parties," and sometimes individually as a "Settling Party." No other person or entity is a party to this Agreement. WHEREAS, on April 3, 2006, B & A filed that certain lawsuit entitled Brookhurst & Adams, LLC v. City of Huntington Beach, Orange County Superior Court Case No. 06CCO4703 (the "Action") in which it seeks a refund and other relief concerning a $110,300 in lieu fee paid to the City; WHEREAS, the Action concerns a development dispute between B & A and the City regarding the undergrounding of electrical lines at Beachmont Plaza; WHEREAS, Beachmont Plaza is located at the northeast corner of Adams Avenue and Brookhurst Street in the City of Huntington Beach, at 10039-10119 Adams Avenue, On June 12, 2002, the Huntington Beach Zoning Administrator approved B & A's application for a conditional use permit ("CUP") and variance authorizing rebuilding the Plaza. The CUP imposed various development conditions, one of which, under the heading of "Information on Specific Code Requirements," was that "[a]ll existing and new utilities shall be undergrounded;" WHEREAS, on October 6, 2005, B & A filed a protest with the City challenging the City's requirement that B & A underground any of the existing overhead utility lines along the Brookhurst Street frontage of Beachmont Plaza and the existing overhead utility lines that span Brookhurst Street between Beachmont Plaza and the property(ies) on the opposite (west) side of Agmement].Doc Page 1 of 8 Brookhurst Street. In response to B & A's protest, the City offered B & A the option of paying a fee of $110,300 in lieu of undergrounding. B & A filed a fee protest with the City on December 20, 2005. Subsequently, B & A filed the Action; At issue in the Action is the validity of the City requirement that B & A underground the utilities at Beachmont Plaza, or that B & A pay the undergrounding in lieu fee of $110,300. In order to resolve this dispute, B & A will pay the City a reduced fee of Seventy -One Thousand Eight Hundred Sixty -Two Dollars and Eighty -Two Cents ($71,862.82); NOW, THEREFORE, in consideration of the foregoing recitals and in exchange for the promises contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Settling Parties agree as follows: I. PARTIES BOUND This Settlement Agreement applies to, is binding upon, and inures to the benefit of each of the Settling Parties, and each of their agents, officers, directors, elected officials, appointed officials, administrators, representatives, predecessors, successors, and assigns. Each Settling Party has indicated its acceptance and approval of the terms and conditions hereof by having a duly authorized representative execute this document below. II. SETTLEMENT PAYMENT Subject to and consistent with the terms and provisions of this Agreement, B & A shall pay Seventy -One Thousand Eight Hundred Sixty -Two Dollars and Eighty -Two Cents ($71,862.82) to the City. The check shall be made payable to the "City of Huntington Beach." B &A shall deliver its settlement payment to counsel for the City at the address listed in Section IVY concurrently with execution of this Agreement by the Settling Parties. Agreementl.DOC Page 2 of 8 IIL DISMISSAL AND RELEASE A. Dismissal of the Action. B & A shall dismiss the Action with prejudice within seven (7) days after the parties have executed this Settlement Agreement. B. Release. B & A hereby releases City and its agents, officers, directors, elected officials, appointed officials, administrators, representatives, predecessors, successors and assigns from any and all claims, demands, actions, and causes of action arising from or relating to the Action. City hereby releases B & A and its agents, officers, directors, administrators, representatives, predecessors, successors and assigns from any and all claims, demands, actions, and causes of action arising from or relating to the Action. The foregoing release does not affect either Party's rights arising out of this Settlement Agreement. IV. ADDITIONAL TERMS A. Representations of Non-Assignment/Transfer. The Settling Parties represent and warrant that they have not assigned or otherwise transferred any claim, cause of action, or other right which has been released in this Settlement Agreement. The Settling Parties agree to hold each other harmless, and to indemnify each other from and against any claim made by any person or entity who purports to be the recipient of an assignment or other transfer of any claim, cause of action or right by the Settling Parties in connection with the Action or the incident which gave rise to the Action. B. Assumption of Risk. It is understood and agreed by the Settling Parties that the facts may hereafter turn out to be other than or different from the facts now known to be or believed to be true. The Settling Parties expressly assume the risk of the facts turning out to be different than they now so appear, and that this Settlement Agreement shall be, in all respects, Agreementl.DOC Page 3 of 8 effective and not subject to termination, rescission, alteration, or other such action by reason of any such difference in facts. C. Waiver of Civil Code Section 1542. There is a risk that, after the execution of this Agreement, the Settling Parties may suffer additional damages arising out of the events described in the Action, the scope, location, and/or character of which is unknown and/or not discovered at the time this Agreement is signed. There is a risk that the damages of which the Settling Parties and/or their respective attorneys are presently aware may become more serious, or otherwise increase in magnitude (qualitatively and/or quantitatively). Each of the Settling Parties shall, and hereby does, assume the above -mentioned risks. The release set forth in this Settlement Agreement is expressly intended to cover and include all future damages, defects, and discoveries, including all rights and causes of action arising out of the events described in the Action against either of the Settling Parties. Each of the Settling Parties is aware of the provisions of California Civil Code section 1542, which provides: "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 by him or her must have materially affected his or her settlement with the debtor." Each of the Settling Parties hereby expressly waives the provisions of Civil Code section 1542 as to all matters within the scope of the claims released by this Agreement. Each of the Settling Parties hereby warrants and guarantees that it has the full and complete authority to release all such claims on behalf of itself, and its agents, representatives, heirs, assigns, and successors in interest. Agreementl.DOC Page 4 of 8 D. No Admission of Liability. It is understood and agreed that this Settlement Agreement is a compromise of disputed claims, and that the agreements made herein are not to be construed as an admission of liability on the part of the City, and that the City denies liability and intends merely to avoid continued litigation, and that this Settlement Agreement is entered into solely by way of compromise and settlement. E. Parties Bear Own Costs And Fees. The Settling Parties shall bear all attorney's fees and costs arising in connection with the Action, through the preparation and execution of this Settlement Agreement and entry of a dismissal, whether by court order or voluntary dismissal with prejudice, of the operative complaint in the Action and all claims for relief filed by B & A against the City. F. Notice. All notices and other communications, and payments, pertaining to this Settlement Agreement shall be in writing and shall be deemed received when delivered personally, by overnight courier, or by facsimile to the Settling Party or Settling Parties, as the case may be, at the following addresses (or such other address for a Settling Party as shall be specified by that Settling Party in a notice pursuant to this Section). AS TO BROOKHURST & ADAMS, LLC c/o L.C. Smull Business Properties Development Company 17631 Fitch Irvine, CA 92614 Fax: (949) 474-8936 With Copy To: Jeffrey M. Oderman, Esq. RUTAN & TUCKER 611 Anton Boulevard, 14th Floor Costa Mesa CA 92626-1931 Fax: (714) 546-9035 ngreemencl.Doc Page 5 of 8 AS TO THE CITY OF HUNTINGTON BEACH Huntington Beach City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Fax: (714) 374-1557 With Copy To: Scott F. Field, Assistant City Attorney City of Huntington Beach 2000 Main Street, P. 0. Box 190 Huntington Beach, CA 92648 Fax: (714) 374-1590 G. Cooperation. Each of the Settling Parties agrees to take such further acts or execute any and all further documents that may be necessary or appropriate to make this Settlement Agreement legally binding and to effectuate its purposes. H. Settlement Agreement May be Executed in Counterparts. This Settlement Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument; however, all such counterparts shall comprise but one Settlement Agreement. I. Entire Agreement. This Settlement Agreement constitutes the full and entire agreement between the Settling Parties, and the Settling Parties acknowledge that there is no other agreement, oral and/or written, between the Settling Parties hereto relating to the Action. J. Authority to Enter Agreement. Each person signing this Agreement on behalf of one of the Settling Parties hereto acknowledges that he/she has the full authority to bind said Party. K. Final Agreement. The Parties acknowledge that this Agreement and its reduction to final form is the result of good faith negotiations between the Parties, and that the Agreement).DOC Page 6 of 8 Settling Parties have had the opportunity to discuss this Agreement with counsel. When signed, this Agreement is intended to be the final Agreement between the Settling Parties regarding the subject matter hereof. L. Interpretation of Agreement. This Agreement is made and entered into in the State of California, and shall be interpreted, enforced, and governed by and under the laws of the State of California. If it becomes necessary to interpret any of the provisions of this Agreement, it shall be assumed that the Agreement was jointly drafted by the Parties. M. Modifications. This Agreement may be amended or modified only by a writing signed by all Parties to the Agreement. N. No Inducement. The Settling Parties warrant that no promise or inducement has been made or offered by the Settling Parties other than those set forth herein, and that this Settlement Agreement is not executed in reliance upon any statement or representation of any such Settling Parties, or their representatives. The Settling Parties further represent that they have been represented by legal counsel during the course of the negotiations leading to the signing of this Settlement Agreement, and that they have been advised by legal counsel with respect to the meaning of this Settlement Agreement and its legal eff t. Dated 7- , 2006 BRO KHUR T & ADAMS, L C Plaintiff By Its Representative: Lester C. Smull APPROVED AS TO FORM: Dated: �-1 , 2006 By: VFJREY ODERMAN, ESQ. AN & TUCKER Agreement].DOC Page 7 of 8 0�-'�-C"a Dated: JULY 31 , 2006 � 1 - " CITY OF HUNTINGTON BEACH, Defendant By: DAVE SULLIVAN, Mayor APPROVED AS TO FORM: By: SCOTT F. FIELD, Assistant City Attorney Agreementl.DOC Page 8 of 8