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HomeMy WebLinkAboutGriffin/Related Properties - 1992-07-06le ; V:'�'ENCY - D., tc,REQUEST FC" REDEVELOPMEN ACTION frer-{if 1.AND CITY COUNCIL ACTION ED 92-21 Date __JU1.X_6J922 Submitted to: Honorable Chairman and Redevelopment Agency Members /Mayor & City Councilmembers Submitted by: Michael T. Uberuaga, Chief Executive Offic 7_6c Prepared by: Barbara A. Kaiser, Deputy City Administrator/Economic Development Subject: APPROPRIATION OF REDEVELOPMENT FUNDS FOR SETTLEMENT OF GRIFFIN/RELATED PROPERTIES LAWSUIT Consistent with Council Policy? PC] Yes [ ] New Policy or Exception Statement of Issue, Recommendation, Analysis, Funding Source, Alter�S VEI;k? xh�,,Ak ts4;3eritpU ' ST - - CITY GL� K Griffin/Related Properties (G/RP) filed suit against the Agency over the proposed Main -Pier Phase II project for costs incurred and or specific action. An out of court settlement has been negotiated subject to Agency approval. RECOMMENDATION: Authorize payment of $250,000 to Griffin/Related Properties. And authorize the execution of the settlement Agreement by the Mayor and Chairman. 1ALYSIS: The Agency entered into an Exclusive Negotiation Agreement (ENA) with Griffin/Related Properties in July of 1989 for the proposed Main -Pier Phase II project. Section 402.1 of the agreement obligated the Agency to pay for all master planning costs (i.e. engineering and architectural) for Block 104 incurred by G/RP. Subsequently, negotiations ceased and G/RP filed suit against the Agency for all pre -development costs expended for the project (both blocks I04 and I05). An out of court settlement has now been reached for $250,000. 13INDING 1. $52,379.55 from Town Square Residential proceeds. 2. $I97,620.35 from the proceed of the pending sale of property in the Oakview Project Area (Zisakis DDA). ALTERNATIVE AEMON: Deny the request and renegotiate the settlement agreement. N1TU/BAK/KBB:jar 0765r pio/1/M SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into as of this loth day of June, 1992, by and between a group composed of Griffin/Related Properties -I, a California partnership, Griffin Realty Corporation, a California corporation (collectively "Griffin"), Charles River Properties, a Massachusetts corporation ("CRP") and Peter J. Porter as Receiver ("Porter") in the matter of A- 11omes Equities v. Pacific Heritage Development_Group. Richard Schwartz, Guatd--ian Acceptance Corporation, Jack Thompson, William Clapper. et al., Orange County Superior Court Case No. 51-51-55 (all the foregoing hereinafter collectively "Plaintiffs") on the one hand, and on the other hand, a group composed of the City of Huntington Beach, a municipal corporation, Redevelopment Agency of the City of Huntington Beach, and Paul E. Cook, an individual (collectively "Defendants"). RECITALS A. On or about April 3, 1991, Griffin commenced an action against Defendants by filing a complaint in the Superior Court of California for the County of Orange, entitled GrJfC1nL Related Properties et al. v. The City of Huntington Bead,, et al,, Case No. 654039 (the "Complaint"), by which, as more fully set forth in the Complaint, Griffin sought damages against Defendants for breach of contract, rescission of contract, negligent interference with prospective economic advantage, unjust enrichment, and fraud arising out of existing and contemplated agreements for redevelopment of two blocks in the old downtown area of the City of Huntington Beach commonly known as the Main Pier Redevelopment Project -Phase II. No Disposition and Development Agreement or Owner Participation Agreement was ever entered into with respect to said redevelopment project as to the City of Huntington Beach and Griffin/Related Properties. B. Defendants filed an answer to said Complaint on September 22, 1991, denying the substantive allegations of the Complaint and further denying any liability to Griffin; C. On or about November 6, 1991 CRP was permitted to intervene in the action denominated as Case No. 654039 by filing its Complaint in Intervention. D. on or about January 15, 1992 the action denominated as Case No. 654039 was consolidated with an action previously filed by Porter pending in the same court, entitled Peter J. Porter, Receiver v ,Roger K. Torriero, et al._, Case No. 613013. E. The actions denominated as Case No. 654039 and Case No. 613013 and all pleadings and allegations therein are hereinafter referred to as "Consolidated Action". F. It is the desire of Plaintiffs and Defendants, without admitting any liability, to settle and resolve all of -2- Plaintiffs' claims against Defendants, and each of them, and Defendants' claims against Plaintiffs, and each of them, including those stated or implied in the Consolidated Action, upon the terms and conditions set forth below, thereby avoiding the inconveniences, expense, uncertainty and risks involved in continued litigation between then. AGREEMENT NOW, THEREFORE, in consideration of the premises and of the promises and mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Settlement Sum. Defendants agree to pay to Plaintiffs the sum of Two Hundred and Fifty Thousand Dollars ($250,000) (the "Settlement Sum"), by check payable jointly to them, upon execution and delivery of this Agreement. The Settlement Sum is paid in full settlement of any and all claims that any one or more of Plaintiffs have against any one or more of Defendants as more fully set forth in paragraph 3 below. Plaintiffs shall deposit the Settlement Sum into an interest - bearing account at any mutually -agreeable financial institution and shall thereafter agree upon or litigate its division among themselves. -3- 2. Dismissal.. Upon receipt by Plaintiffs of the Settlement Sum, they shall deliver to Defendants an executed Request for Dismissal with prejudice of Defendants in the Consolidated Action, in form satisfactory to Defendants, for filing with the Court. 3. General Release by Plaintiffs . Except for their obligations specified to carry out the terms of this Agreement, Plaintiffs, and each of them, on their own behalf and on behalf of their representatives, predecessors, officers, directors, agents, partners, attorneys and employees, past and present, and their heirs, assigns and successors in interest, and each of them, release and forever discharge Defendants and each of them, and their representatives, predecessors, officers, directors, agents, partners, attorneys, and employees, past and present, and their heirs, assigns and successors in interest, and each of them, of and from any and all claims, demands, actions, causes of actions, liabilities and obligations, known or unknown, suspected or unsuspected, which are in any way connected with, incidental to, stated in, implied in, related to or arise out of, the Consolidated Action. Plaintiffs further waive any right to appeal and to set aside the dismissal described above pursuant to Code of Civil Procedure Section 473. 4. General Release by, Defendants. Except for their obligations specified to carry out -the terms of this -Agreement, -4- l Defendants, and each of them, on their own behalf and on behalf of their representatives, predecessors, officers, directors, agents, partners, attorneys and employees, past and present, and their heirs, assigns and successors in interest, and each of them, release and forever discharge Plaintiffs and each of them, and their representatives, predecessors, officers, directors, agents, partners, attorneys, and employees, past and present, and their heirs, assigns and successors in interest, and each of them, of and from any and all claims, demands, actions, causes of actions, liabilities and obligations, known or unknown, suspected or unsuspected, which are in any way connected with, incidental to, stated in, implied in, related to, or arise out of, the Consolidated Action. Defendants further waive any right to appeal and to set aside the dismissal described above pursuant to Code of Civil Procedure Sections 473. 5. Waiver of Civil Code Section 1542. Plaintiffs and Defendants acknowledge that they have been advised by their respective counsel concerning and are familiar with the provisions of Section 1542 of the California Civil Code ("Section 1542"), which provides: A general release does not extend to claims which a creditor does not know or suspect to exist in his favor at the time of executing the release, which if - known -by him must have -5- materially affected his settlement with the debtor. Plaintiffs and Defendants knowingly and voluntarily waive the provisions of Section 1542 with respect to the Consolidated Action, and acknowledge and agree that this waiver is an essential and material term of this Agreement and the negotiations which have led to it, and that without such waiver this Agreement would not have been entered into. Plaintiffs and Defendants have been advised by their respective counsel and understand and acknowledge the significance and consequence of this release and of the specific waiver of Section 1542. 6. Denial of Liability. Defendants, and each of them, deny each and all of the claims asserted against each of them in the Consolidated Action. This Agreement is a full and final compromise and settlement of claims and disputes between Plaintiffs and Defendants as stated herein, and shall not at any time be treated as an admission of liability or responsibility for any purpose, whether in the Consolidated Action or in other actions, lawsuits or proceedings. 7. Entire Agreement. This Agreement is an integrated contract and sets forth the entire agreement between the parties hereto with respect to the subject matter contained herein. All agreements, covenants, representations -and warranties, express or -6- implied, oral or written, of the Plaintiffs and Defendants with regard to such subject matter are contained in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made or relied on by any party hereto. This Agreement supersedes all prior agreements and understandings with respect to the subject matter contained herein. S. Modification in Writing. The terms of this Agreement may be amended, modified or eliminated and the observance or performance of any term, covenant, condition or provision may be omitted or waived (either generally or in a particular instance and either prospectively or retroactively) only by the mutual written consent of the Parties. The waiver by any party of any breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. 9. Ho Transfer -of Claims. Plaintiffs, and each of them represent, and warrant that none of the claims released by this Agreement has been assigned or transferred to any other person or entity in any manner. 10. Attorneys' fees. In any action or proceeding brought to enforce or interpret any provision of this Agreement, or in any action or proceeding in which any provision hereof is validly asserted as a defense, the successful party or parties shall be entitled to recover his actual attorneys' fees and all -7- y other litigation costs, including without limitation, costs awardable pursuant to California Code of Civil Procedure Section 1033.5 in addition to any other available remedy. In addition to the fees and costs recoverable under the preceding sentence, the parties agree that the successful party shall be entitled to recover actual attorneys' fees and costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 11. Joint Drafting. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the parties hereto, and no'rule of construction or interpretation shall apply against any particular party based on a contention that the Agreement was drafted by one of the parties. This Agreement shall be governed and construed in accordance with the laws of the State of California and the parties submit to jurisdiction of the State of California in any legal proceeding necessary to interpret or enforce this Agreement or any part thereof. 12. Consultation with Counsel. The parties hereto have entered and executed this Agreement based upon their own independent judgment, after consultation with their respective counsel, and without duress or undue influence of any kind. -8- 13. Miscellaneous. a. Successors _and. Assigns. This Agreement, including, without limitation, the release set forth herein, shall be binding upon and inure to the benefit of the parties, as well as their off icers, directors, agents, partners, employees, representa- tives, predecessors, attorneys, and assigns, past and present, and their heirs, assigns and successors in interest, and each of them. b. Headings. The headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to influence the interpretation of this Agreement. c. Counterparts. This Agreement may be executed in any number of counterparts, which taken together shall constitute one and the same Agreement. d. Authorization. Each corporation, partnership and public agency which is a party to this Agreement has been duly authorized to enter into this Agreement by its governing body. ee Pages. This Agreement consists of ten (10) pages, including signature pages. WC IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 10, 1992. REVIEWED BY: r T- NEWWER, LANDRUM & DIL149N By L w Attorney for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: iL j City/Agency Clerk APPROVED AS TO FORM: By ity�Agency Attorney 5 v GRIFFIN/RELATED PROPERTIES -I By e A4 Partner GRIFFIN REALTY CORPORATION CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook -10- • 0670S-92 02:48PH FROM Mike Klid eld TO 16172274727 F013/016 �r IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June h2, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By as Riv�r/ Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Hones Equities ADAMS, DUQUE S HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: By City Agency Clerk APPROVED ASS TO FORM: By /�1 , City/Agency Attorney '5.�6l - z ~9 Z -10- GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CnARLES RIVER PROPERTIES By s � A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Ndyar REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH IBx Its Paul E. Coo JUN 9 192 17:52 S19 487 213E PAGE.013 �j IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June !o, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria PersonA as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: City/Agency Clerk APPROVED AS TO FORM: By u.4P _ City Agency Attorney 7-2 -S2 ,Q GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES Bj► Its A-M NO EQUITIP�- BY � . Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook -10- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 0, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By 1 - D RicharU R. erzi n Attorneys for Def dants ATTEST: By City/Agency Clerk APPROVED AS TO FORM: By ,&-J & � City/Agency Attorney GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Bit Its Paul E. Cook -10- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June ID, 1992. REVIEWED BY: NEAER, LANDRUM & DILLON By Attorncks4or Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Hones Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: 20 City/Agency Clerk APPROVED AS TO FORM: ByZZ;Z!7�— - City/Agency Attorney -,'off- 12-.� GRIFFINjRELATED PROPERTIES-1 By al Partner GRIFFIN REALTY CORPORATION 7 M11do r CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook -10- 06--09-92 02:48PM FROM Yike Klideld TO 16 DID4714 rule/vID IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June �2, 1992. REVIEWED BY: NER MYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD by G4 /At o ey r Charles Riv r Proper ies PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: By City Agency Clerk APPROVED AS TO FORM: By City Agency Attorney -10- GRIFFIN/RELATED PROPERTIES-1 By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES 12 By% s f , c= A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Coo JUN 9 '92 17.52 SIS 487 2139 PAGE.013 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 10, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzlan Attorneys for Defendants ATTEST: By City Agency Clerk APPROVED AS TO FORM: By City Agency Attorney GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its By CHARLES RIVER PROPERTIES Its A-11 ii EQUITIES B !J Y P'�rL ± -., / Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook -10- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June L, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZ LTINE By c �Li Richard R. Te ian Attorneys for pefendants ATTEST: By City/Agency Clerk APPROVED AS TO FORM: ByZ&4Z:� 2LZU�— Ci Agency Attorney a� Ji'21 or'w -10- GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June if), 1992. REVIEWED BY: I NEWER, LANDRUM & DILIPN By A,1 Z-�—A �. Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: By City Agency Clerk APPROV�jED� �A/S TO FORM: By, City Agency Attorney w-" -f"4- GRIFFIN/RELATED PROPERTIES -I 8�. r�) Partner GRIFFIN REALTY CORPORATION RLOUW2 CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Its Paul E. Cook -10- 06-09192 02:46PM FROM kike Klatleld TO lbFIZ11471s rulj/ulD M IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June jf2, 1992.. REVIEWED BY: NEWKYER, LANDRUM & DILLON By — — Attorneys for Griffin S. MYRO# KLARFELD By -014-1�k - - --. /At o e r harles Riv r Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Mores Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzlan Attorneys for Defendants ATTEST: By City/Agency Clerk APPROVED AS T FORM: By C'ty/Agency Attorney 1 -.1 . -f 2, -10- GRIFFIN/RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RXVER PROPERTIES By � if s i' A-M HOMES EQUITIES By Receiver CITY OF IM"rINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUHTINGTON BEACH By Its Paul E. Cook JUH 9 992 17:52 619 4e7 2139 PAGC.013 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 10, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By Richard R. Terzian Attorneys for Defendants ATTEST: By City Agency Clerk APPROVED AS TO FORM: By y QSl City Agency Attorney 7 - I" -S Z" GRIFFIN/RELATED-PROPERTIES-1 By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES By Its A-M UITIES Y HEQ 8 j Receiver CITY OF HUNTINGTON BEACH By Mayor REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By Its Paul E. Cook -10- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June /0, 1992. REVIEWED BY: NEWMYER, LANDRUM & DILLON By Attorneys for Griffin S. MYRON KLARFELD By Attorney for Charles River Properties PETER J. PORTER By In Propria Persona as Receiver of A-M Homes Equities ADAMS, DUQUE & HAZELTINE By � 'Richard R.i Terzi n _~ Attorneys for De ndants -ATTEST: By City Agency Clerk APPROVED AS TO FORM: By ity Agency Attorney cl�wg _10- GRIFFIN%RELATED PROPERTIES -I By General Partner GRIFFIN REALTY CORPORATION By Its CHARLES RIVER PROPERTIES By Its A-M HOMES EQUITIES By Receiver, CITY OF HUNTINGTON BEACH By Mayor. _ REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By zoi � �1� Its Chaiv,nan - Paul E. Cook