HomeMy WebLinkAboutHuntington Center Associates LLC, (Ezralow), Burlington Coat Factory & Montgomery Wards - 2000-10-20 (23)EXHIBIT F
Sent By: BUHLINTON COAT FACTORY- 609 239 1421; Oct-2-00 3:39PM; Page 618
Oct•o2-2000 12:48pe FrwTuchsan Ogociztei 1113/50686 r T-504 tyAVU P-461
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I, Marls A. Need, declare as follows:
I . I am the ESocutive Vice PtesWcza acd Chiefopmadng Mccr ofButthgton Corr
Factory warehouse Corporation, Inc. located at 1830 Route 130, Burlington, NI 08016-2996 and its
wholly -owned subsidiary, By rlkgum Coat Factory Warehouse of HundngWn Beach, Inc. ("BCn. In
These capacities, I am one of to key owcudves responsible for overseeing and superviskg, amcmg other
things and without limitation. BCF's leasehold interest in a portion of the stopping center located in
Huntington Beach, Califomia (the "Shopping CcntW). The SUMmmus contained in this Declaradon
are true and based on my penonal knowledge, unless othtrwtse stated herein. If called upon to unify
to these st lznrze ts, I cowl anti would compcmndy do to Unda crarh. i
2. 1 mAke this Declaration in opposition to tha City entering into the OPA and
allegedly acting to determine if Bltilirtgton's property should be taken.
3. I have reviewed the reports from Sedway and Keyser Marston. The direct
inference is that Burlington Coat Factory is not an `Stpscale" retailer.
4. It should be noted that no one from the Stdway Group or Keyser Marston ever
contacted my offices or anyone at Burlington Coat Factory. Had they coasacted us, we would have
cued thaw and Swded them with rasped to the amotmt of square faof4p that we senu l]y no and
use, the approximm sales tlao= we have paid over the last throe and a half years, the types of malls that
we have bin in as wrll as other information which would bane made their reports more accurate.
5. We are fully able to stock our shelves with such fashions as Tommy Hil$ger,
11 Hugo Buss, Annant stud have a &U spectnm of vendors.
6. At present, we are currently omupying approximauly 133,500 square feet, not
nearly 200,000 Square feet AS the reports indiCAte, in addition, our sales tax Tswana, the last
approximately duet and one half years, totals $3,769,000. If you tale tht approximate square footage
on a three year avenge, that is $9.41 per square foot versus dte Sedway conclusion of approximately
$6.31 per squae foot.
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Sent By: BURLINTON COAT FACTORY;,._ 609 239 1421; Oct-2-00 3:39PM; Page 719
Oct-02-Ma 12:45pe From %Owaa t*aclitei 2133150511 T-504 P.103/004 F-461
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7. I have read the Perforniz= Analysis of Mazvyns versus Burlingwn, and based
on the demographics and the amown of sales, it Appears that the Meavyns store is equal re or Icss chase
tho =ount of sales tax that is beins geummed by Burlington Coat Factory. Eitber way, the reports are
maceLme, and unless the correct square footage and the comect sales tax figures are inmpormed, the
reports are nm an inglm and obviously slanted for a pr+edeteranned goal of getting rid of Bisdb%ton Cost
Factory.
8. Our womea's clothing vendors include: F.mme Black, Pendleton, Josephine
Cbaus, XAgw, Evan Picone, Jo= Coliectiort, Jonrs Spotr, Jones Country, Have Beaud, Anne Klein
2, Ralph (by Ralph Lauren), Bushwacker, Liz Chubome, Rena Rowan, Rafaeila, DKNY, ABS, French
Connection, Lau m (by Ralph Lam), Harlow, Easel, Rem Owwn, Stave Maddest, Pasrick, Andrew
Marc, Adrieana Pappel, En Francais, Muse, John Meyer Suits, Un 9w, Ciianfianca Ferre, Exte,
Expensive and Finity.
9. Our shoe vendors include: Nine West, fim, Via Spiga, Bandolino, Easy Spirit,
Nick,cis, Kenneth Cole, Ktmw& Cale Unlisted, BCB4, Bisou Bisou, Liz Claiborne, Me Too, Steve
Madden, DKNY, Skwhn, Nina, Unin, Chinese Laundry, Esprit, NaturaUzer, Life Stride, Ann Marino,
Sate and Libby, Candies, Prime Royale, Aerosoles, White Mouctmin, Johan and Murphy, F'lorsheim
Dexter, STacy Adams, Nunn Bush, Timberland, Bostonian, Adidas, Reebok, Fila and Keds.
10. Our menswear venders include: Polo, Tommy ( lfiger), Neutica, DKNY, Pftry
Ellis, Calvin Klein, Guess, Janes New Yozk, Claiborne, RufSni, Donna Kahan, Chacps, Kenneth Cole,
AndrewFezza, IZOD, Hugo Boss. Frencb Connection, Harve Bernard, Kasper, Pelle PeRc, Pepe, FiJBU,
Sean John, Rocawear, Kati KwL Wuwear, Armaai, And Onc, Nike, Adidas, Champion, Geaffirey
Bey, Sava=, Levi's, Haggai, JordwAc, Alex M der Julian aad 3tscy Adams.
11. Ow otttmwear vendoas include: Andrew Marc, Polo, Chaps, DIW, FUBU, Pbx
i Farm, K,cn Cole Reaction, Coltunbia, Weathcrpwo£ Clafbasz38, Na=4 Rain Famst, Calvin Klein,
Pacific Trail, London Fog, Schott, Tommy Hilfiger and Avircx.
12. Our Luxury Lb= vendors include; Croscill, Royal Vc1vt'c, Vcra44 WamsuMk
I Fieldcrest, Martex, Ralph Lauren, Nfilam and Fitz tit Floyd.
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Sent By: 6URLINTON COAT FACTORY;.- 609 239 1421; Oct 00 3:39PM; Page 818
Oct-02-2000 i t:41vs Fror-Tuchnn ^w It4l a I Hlsolll T-W P.OUM4 F-01
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13. The mbMm of the retail merchandise available is subjeat to the customer base
sad can easily be upgraded, chemsed, amended or modified-
1 dad$re hinder penalty of pe ]wy under e11 the laws 0f the Smtc of CAhfornia thst ft
famgaiag is true and correct.
This declaration is sigaed this �`` day of 4ctobcr, 2000 at Burlington, New Jersey.
A.
EXHIBIT G
EZRAL0* New
RfiTAII.
PROPERTIES
September 21.1999
W. RobM Grspsld
Dhector of Raul Ems
Budinvoa Coat Fumy
1330 Route 130
Budiingmt4 NJ. 08016
IF
7s+� cuff. are. su+n ins
lamm cAt am• sine "&.*two
TIU"OKt +.s.w.uss 4 Il S
R• T. GRAPSKI
� P$3ON
Rc THE FZRAWW COM7AW, =
Lean Betwan MCA Hiwtmgft Assooiatea, L.P..
laadtord, sad Bodensee Can Fuwy. Learm
deed as ofApt t 21,1993 for pmmim located is the
Dar Mr Grspft
We have entered into a o=Md with an AMu of The Ma"Mch Compm to purchase
the Hundnpoa Bwh Mall (to "Ceutd), =Iuda6 dw tumd pradm pinvady
o=u pW by BwUnp= Cost Fsatm (" w tapW or "pull. Upaa ow &wdddan of
the C awn vm propw to redavdop it info a ilnFch= retail uW certtae
pursuss w pro:par, " awlavidomm a wNh do Redsve]apt Apemy of
the City of Hmdugos Sawk the tedevdopmen plan will regWm the de=Udon =6
ramroval of much of the OdIdna 'wpm on the siw6 44xft the BwUnpm
leased pleat wL We beUm the Chi, what re+d&V eloped pwn at to our p opow d
plan` will a abim ft"AM rwa ad usas in as innovative way within a
hiB�Quslt$' �i .-
We have utempoed va coutm you reomady coot cw4 our pLs for the redeveloped
Camac for 68 ;MPNO of opaain6 anu dow with Buriw2w a resuftp b iatfm in
gsRidpstini as a vow of the redeveloped Center. Va k= ahmm m may be p*Wlbe.
al*cue l if Biudina as dalres to remain as a taunt in the redaveioped Center. it will be
necessary to reioata you ftm Yom widag prrmiset
Law m 'os Fumy Z
5spliabor 11, Mw
Ow won of the'rekvdaped CenDet csu include a role fat Budingt o If you ate
to work with = as this improvement prQJGM We hope to shm thtt vision with you sad
invite you to svW yourselvd of this sWgWtr oppo mity.
Plems call me when you have mviewad d& ca to disco, this
vat► rly yaum
JCR oltS"ewpar tLmbiNdaUls
LLC
EXHIBIT H
THE EZRALOw COMPANY, A
23622 Caldasas Road
Suite 100
Calabasas. Ctddbraia 91302
October IS. 1999
e - h Ai P . r
Mr. Bob Qrapsld
Burlingtm Cott Factory War+ebouse
Real Estate Depnnm®a
1830 Route 130
Burlington,. NJ 08016
Re: THE EZRALOW CO11iPANY, LLC
Budingm Coss Fwaacyr
Dew Bob:
In My PIV% iotts carrespoadence to you dated September 29, 1 M. and advagateat
discuniaas I advieed y�au of our desire to discuss Budhtgwa's inoemeat is pa:tleipati as • oe t
of the redaveioped Ctm *v are prapodn�& I also indicted th el onr reRlerelopessent p!ea will
require the demo Udon and rema%ml of mwA of Ow edstit g impco� an the site, imclud'aag
the. Burlington leased premises. When redeveloped pw=mt to our pray osod platy vm beliew
the L'eater will combine Ssst-class retail and mtzerWwpe mt use in an inmidve sung► witbla a
high-Quaft
During our telephone ow, ev ptioa tom. I confamod to you dus to f+amping inwhaadw
to discuss BwUngtods intaest in pa:ticipadag as a uemt of the redeveloped Censer remmina
open~ but catum remain open WcSniody. AwakHn*, I haN+e included a preftlawy site plan
of the miewloped Cea w for your Immediaw rwAgw wad Xumsdm with me. h is subject to
change~ Plow direst your aatendoas to Suites K W. and O as,hon on tiara plain mad call me as
soon as passibia The window of oppmaa ty for Bwfingtoa to paddpm as ale a of the
redevdaped Camar drinker as time pass&
fnsaft. we see no basis !roar y m conclusion that becautig a two-montb oid
IM attirw ddled to m d= Bunimazon as a participating teoart of the &;e& ,6aged Center.
that. BmIlopm is not bang Wired tit such yameipatlaa. Tw invitation ar have atteaded
to Burlington in our previous Coll Sulam regarding such putcipstion speak fat tisCmsd
It is now up to Burlb4m to rrspond.
!pi 1014" e:\%w kwa t wWl4
0
.00
LOW m W Aar orom
04k Err Nr 19W
Plem aU me aI= you have mie%vd the emlou d prelfinkmr she Visa
very "yours.
1
fbt114E� EZRALO COW,wr cLc
JCH 1014" al 14
EXHIBIT I
,Trancade: [PERMIT] COMMUN I TY DE VE LO PMENT (40711
Function: [HSTI P E R M I T I D E N T I F I C A T I O N PG. 1
( 1 [ 1 Permit (80728661 Address [077771 [EDINGER ) [ )
Next Page No.[21 [PLEASE CONTINUE ] I ] Appl.Date404192000]
Tract "0 ] Lot "0 ] Block "0 ) Multi -Address? IN) New Tract? IN)
rrrrrar+aaaa*a+ra+aw+++wrwwaaaaraaww+wwawwaa+++++aaaarw+arwaa+++a++a+riar+arrra
Owrner : (EZRALOW COMPANY 1 Phone : (8181 122225301 Report Dist (242)
Addr: [23622 CALABASA RD I C/S/Z:[CALABASAS, CA 91032120 ]
arrrrrraraawrrra+++sass+rrarrraraaa++a++a+rrararaawaararaaaarrraararaawaaaaaarr
Contractor: ( 1 Phone: I ] St Zip
Addr: [ ) [ 1 1 I City. 1 11 )
City Lic: I ) State Lic: ( ] Classes ( I I 1 I 1
If License renewed today, enter initials to indicate receipt of renewal: [ ]
ara►rarr+aaaaarraraararwawwawra+aararaarrraararararraaaarrararrrawaaarwaarraaar
New Building? (N] Use [COM ] Code [TI ] I ]
rrraasaarrrawarar+a Certification 'a+a++++++arrarrrarra++ Fees/Statistics '• "•
Builder - Contractor? IN) Builder • Owner? [Y) * Is this a City Job? ; ]
Builder Self -Insured? IN) Builder Non -Employer? [N1 ' Administrative Only? ( ]
Project Description '• " " ""w'"'*"""""" '••• Notifications ww
[TEMPORARY WALLS (PREP FOR DEMO) - INSIDE FAIN ENTRANCE I * let:[ ] [ ]
(TO MERVYNS ) • 2nd:[ ) [ ]
I 1 " New:[ ] ]
rrrraaaa+aa►+araaararaaaarrwawar+arrrrrrrararaarwrwwara+araaararaaaarrarrraa►ra
voided: I 1[ I Cancelled: ( 11 ) Expired: ( ]" ]
-4
•
•
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Tranc.,de: [PERMIT! COMMUNITY DEVELOPMENT (4034J
Function: [HST] PERMIT INSPECTION HISTO R Y
Permit No. [B0728661 Address ( 7777)(EDINGER )( ] Next Page No. 131
Issued 1041920001 Bldg I ) Plancheck No. I ]
Unit Date Inspector Description Rslts Status/Correction
I )105252000)1Frisby, C ](FINAL BUILDING I(A It I
I ] 105242000) (Frisby, C )[FRAMING ! 1A ) 1 1
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EXHIBIT s
4t A: NflTib ~N�XL\�l I DE FE.YDrr:TS
µ)M ING70N CENTER ')550CIAT'ES. LL. PUMILIA. CAROL YM NBiA.dldlt3
iNDI
L
i7TYHI \'F Y. S 1
1 .rrns.r, .1,
eF �u�L ec- YAAb6roV4StiART
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M 7 M
COMPLAM FILEo-sl:%M0N% IS-SI-ED .ee Pam
S
0 LD TRIALDISMISSAL 0 Cv NwNnATORr APPEARANCE
CET FOR
ER FILED ON BEMLF Of CAPIMYN "ILIA, an lyd. dba 't4RFE OLD
CROWS: E'LiZhBM BERG, an 1 ..
an ind. dba Tt61EE OLD CROWS.
OVERAGE).
rl n
"1
EEi
r1E TO SET COMIPOR TPy4L FILED BY PLAKnF*.8EMMF14W
TIDAL SET FOR -I - AT :5
AAR I
To SEI CASE FOR TR!A'- FILED 3
NOTICE I" ILED T�
i SY
I
'AR 1
Hon
IIn DivDeMm
aalr feI
STIPULATION FOR ENTRY OF JbDGFENT SWiED d FIUD
17 IS HEREBY TIP ILAILD.
Ah
OLD CROWS ELIU aETH BERG incr A dba THREE OLD CROWS. AHD LAROLE
NOLL, 7nOr Ona L L
3 HUNTI'GTON BEACH, CA.: FORFEITURE OF THE LEASE ON THE PR
ISES.
PLAT%TS ASURD A MowKowu JUDG"ML
TO THE STIPU - AIO MKT ENTUMD
1
AT n
WRIT OF EXE
UTION Rf7URNED SATISFIED AS TO POSSESSION AND U—NWSHED
s� -1=i
•
HkAI ING TG) Z0-10 ;ZG'--U[:. LLL
THE SUPERIOR COURT OF CAI 7RNIA
MUNTY OF ORANGE
,OOWL 01003
U[F LWL11Y71 S 0�ML011DNS
FQNo F, MOFSEM
AT'!OR%L).%;
he f
ATTOR?h) ISI
i
GS [
FFr i i
t U%tPI.A1%T FEE F.*
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O i, D T1+O CV MANDATORY APPF.ARAI(T
Stl tf )A
+ --
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B 252C100Vf
n6+ `v• lir', 1
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'CASE
1 TO MT F& TRIAL. FJED 8y PLMl4T1FF
I
1P., TRIAL SFT FOR - I -GU AT '
AQ 2 2000
g,r
c
1
1
`
200
i; !V
TM au cure on cp)1)"for cmN A„Ms .
RtmiN iippCMb-4 y
T1C1w— ipx ON Dy • .,m f.ww
511PULATiON iOR ENTRY OF juDGNENT SIGNED d FILED.
..�
17 IS F._r2EBT STIPULATED BY AND BETWEEN THE PLAIMilrF, hUNI1MG{UN
I
HAT P AINTIFF BE AWARDED POSSiSSIOh OF THE PREH1
ES
1
LOCATED AT- 1777 E-D1kGER AVE., Sp.pJO6, MUk k N A AN
F 55M.QQ RENT E 6 GE5 ?LU5 COSTS OF $475.00. A
uR1T CT POSSESSION r.AT BE ISSUED F R nk! T
WA
-al •, Tr • fl,)RvAr, nr poS�--$SICNUNOERCCP 712.010 FILED
- r .. :rF R S U
- -
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KrI UkaNtJ SAJiiwfitdAS TD JJ �JiIu
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HE SUPERICA CU'1RT OF CALfFORNIA
Coun TY L ')RANGE OOWL 01556
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4t�.IHI IFFY 1d0LA.aI fA,
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4T' A•EYr S.
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COMPLAINT ►ZI.EDl%L."()SS ISSUED nE ►Ao
S
0 LAI TRIAL'DLSMSSAL 0 CV MANDATrAl APPEAR4\(-F
SET FOR
W 1 ZQ�
AUS1M FR,ED 8 Aw Y JrAELERS. TNC.. a Cal L fornia dba
ASNLY JEwelETLS
W 16 2M
090110RANDW TO SET CAN FOR
C I 1J
TZ"M
NOTICE MAILED TO ALL PARTIES.
-
LVyyyW
ELA��vL��V
NOR Mqa
us cm ca an rvqA" for
�ppea+np • �
aIDOt:+I'C
RFAY ORDERAD' DG D D OEC0.EED THAT PLAINTIFF BE APIARD
O
FORFEITURE OF THE LEASE, RE51ITOT OH OF ThE?R _ L e
NANTIFF AXAADED COSTS '++ Tr.E AMOUNT OF Sd75.00. WRIT OF POSSESS)
r
KAY BE ISSUED FORTHWITH. EACH ?AR Y PLLO ILALLY WAJVLrTFZ—
VO
r THEREFOR PLAINTIFF IS HOT OBLIGATED TO CGKPLY
WITH CC1950.7.
An - T
SEIC TO
APR I
My 0 3
RETURNED SATISFIED AS TO POSSE»iON AND UNSATISF[_p
•
IN THE SUPERIOR COURT OF C' -,We) OF ORANGE c� .+o OOW L
=tN INIIrFS �M1W10 DEFEr+U.+J IS
,T_• ING;DN CENTER aSSOL. ! LC 0E1J+LdldJe
N( C£NfiigL 7�DING LD_
ATTUR.�t! 11 ATTQRVF F: S,
DATE
Co%fh-AJ%T FILED-%t,%t%1()%S lSSL[D FEE^W
O UD TIJIALrbLSNJSSAL D C%' MA%DATORr APPLARA�Ct
I
St-T K)R
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J 20M
qjS7,VE.q i:i CN o: Hnlf gf CMIAL TRADDM_ Cr_., an :r*n Wn buaineSS
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enCi[ : JME Mrb.Di]*K)L1D, an ind. dba CEV;vAL TRADING CO. adba
ELEE!GAA.W SILKS,
i
2 $ cyuuu
PO'l k .40
SI(IAL SET F N —Fqf
I
I AR
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1 5 200a
pslygma
In Dk Iimplailt
f
STIPULA ON 0 ENT2Y OF JUZENT S GNED 3 FILED
BUSINESS ENTITY; jESSE HINDERHOUD, inOv I Jioa CENTRAL TRADING CO.
1
a a
"
RztrwL
THAT A MONEY JUDGMENT Si AWARDED IN THE AMOUNT OF SSOO.LC RENT d D
;;;GES
PURSUANT TD THE STIPULATION - JUDFiIENT ENTERED
KAI T 12m
zE55',D•+U'+DE4CCP 712 0 10 F_tLl1�
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•
EXHIBIT K
**•TMS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*O*
I A Ward's structure yes.
2 Q Have you ever made the comment you want the Great
3 Indoors to go in the land or building where Wards is
4 located?
5 A Great Indoors is their deal is conditioned upon
d going where Wards is currently located, yes.
7 Q Have you told Wards that?
$ A No.
9 Q Now, this letter of intent with the Great Indoors
10 what's the square footage is 140 thousand, what's the
1 I price per square foot?
12 A That's, I don't — that's confidential
13 information.
14 Q Are you refuse to go answer that?
15 A Yes.
14 MR SHIPOW: He, I've instructed the witness that if
17 you ask questions that require revealing confidential and
18 proprietary information he can and should refuse to reveal
19 that.
20 BY MR TUCHMAN:
21 Q Now, you have a letter, when was this letter of
22 intent signed of Great Indoors?
i
23 A I honestly don't remember the date.
24 Q Aid you negotiate it?
25 A Yes.
***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT***
28
0
* * *THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* * *
1 city?
2 A No, I mean Paul's LOIs.
3
Q
Yes we have,
�- 3
4
A
That's the best source. Not my memory.
i%JV� v�
5
Q
Good. Now, have any tenants that you signed LOU
6
within
the LOIs said we're going to go in here only on the
� to
7
condition that Burlington is gone?
8
A
I don`t know. I honestly dont.
9
Q
Now, you mentioned that Great Indoors one of the
c�
10
conditions of their LOI is that Wards is gone.
11
A
Right.
12 Q Now is it that Wards a gone from the site or
13 they're out of that building?
14 A It's location driven So it's just that
15 structure.
16 Q Besides the Great Indoors are there any other L0I3
17 that have been entered into that basically says Wards has
19 to be out of their stYucnue?
19 A No.
20 Q When you spoke to, when's the last time you spoke
21 with W. Biggs?
22 A Thursday.
•
•
23 Q Is it your regular Thursday meeting with the City?
24 A Yeah, I was on the phone at that time and it
25 wun't physicaiiy there.
***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT***
38
EXHIBIT L
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
APPEARANCES OF COUNSEL:
2
FOR THE COUNTY OF ORANGE
2
FOR THE PLAINTIFF:
3
3
TUCHMAN & ASSOCIATES
4
BY: AVIV L. TUCHMAN, ESQ.
5
BURLINGTON COAT FACTORY )
4
KRSTO MIJANOVIC, ESQ.
WAREHOUSE OF HUNTINGTON BEACH, )
3435 Wilshire Boulevard
6
INC., a California Corporation, )
5
30th Floor
Los Angeles, California 90010
7
Plaintiff;
6
(213)385-8000
8
)
vs. ) Case No.
8
FOR THE DEFENDANTS:
) OOCCO6309
WHITMAN, BREED, ABBOTT & MORGAN, LLP
9
HUNTINGTON CENTER ASSOCIATES, )
9
BY: MARKS. SHIPOW, ESQ.
a Delaware Limited Liability )
633 West Fifth Street
10
Company; EZRALOW RETAIL. PROPERTIES,) VOLUME I
10
Twenty -First Floor
a Delaware Limited Liability ) (Pages 1- 164)
Los Angeles, California 90071-2040
11
Company; THE EZRALOW COMPANY, a )
11
(213) 896-2413
Delaware Limited Liability Company,)
12
12
and DOES 1 through 10, inclusive, )
FOR DAVID BIGGS:
13
13
Defendants. )
KANE, BALLMER & BERKMAN
14
BY: R. BRUCE TEPPER, JR., ESQ.
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515 South Figueroa Street
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5
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Suite 1850
Los Angeles, California 90071
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(213)617-0480
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DEPOSITION OF:
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DAVID BIGGS
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TUESDAY, JULY 25, 2000
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AUG 1 4 ?000
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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INDEX
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FOR THE COUNTY OF ORANGE
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EXAMINATION BY
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'Page 6
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BURLINGTON COAT FACTORY )
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WAREHOUSE OF HUNTINGTON BEACH, )
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INC., a California Corporation, )
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EXHIBITS
Page
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Plaintiff, )
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Plaintiff's Description Marked
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1 Notice of Taking Deposition of PMK 25
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vs. ) Case No.
For Redevelopment Agency
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) 00CCO6309
HUNTINGTON CENTER ASSOCIATES, )
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2 Notice of Taking Deposition of 25
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a Delaware Limited Liability )
Company; EZRALOW RETAIL PROPERTIES,)
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David Biggs
3 Documents Withheld Pursuant to
a Delaware Limited Liability )
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Evidence Code 1040(bxl) 27
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Company THE EZRALOW COMPANY, a )
4 City Council Study Sessions &
Delaware Limited Liability Company,)
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Special Sessions 38
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and DOES 1 through 10, inclusive, )
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5 Declaration of David C. Biggs 52
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6 11/15/99 - Council/Agency Minutes 80
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Defendants )
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7 later -Department Communication -
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Specific Plan No. 13 97
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8 Application 104
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9 Letter dated 3/3/00 to Burlington 133
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The Deposition of DAVID BIGGS, taken on behalf of
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10 Lever dated 3/6/00 to Aviv Tuchman 143
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the Plaintiff, before Amy Saylor, Certified Shorthand
11 Letter dated 3/28/00 to Douglas Gray 145
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Reporter No. 11560, Registered Professional Reporter, for
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the State of California, commencing at 9:03 a.m., on
12 Development Review Request 147
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Tuesday, July 25, 2000, at the Law Offices of Tuchman &
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Associates, located at 3435 Wilshire Boulevard, 30th Floor,
13 Project Meeting Agenda 155
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California.
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INDEX
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INFORMATION REQUESTED
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(None.)
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WITNESS INSTRUCTED NOT TO ANSWER
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Tuesday, July 25, 2000; 9:03 a.m.
Los Angeles, California
5 DAVID BIGGS,
6 called as a witness by and on behalf of the
7 Plaintiff, and having been first duly sworn by
8 the Certified Shorthand Reporter, was examined
9 and testified as follows:
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11 MR. TUCHMAN: We have received a privileged log
12 which is entitled, "Documents Withheld Pursuant to Evidence
13 Code 1040(bxl)." There are 32 items. I offered to
14 discuss it with Mr. Tepper. He said we should discuss it
15 on the record, which is absolutely fitre with me. I don't
16 want to spend too much time on it. I just want to go
17 through it very quickly, and then well proceed to the
18 deposition. Krsto Mijanovic is here. Take it away.
19 MR. MIJANOVIC: I just want to meet and confer
20 over some of the documents you produced and some of the
21 documents that you have withheld pursuant to the privileged
22 log here.
23 First thing, the privilege that you claim is
24- 1040(b), Section 1, which basically says the disclosures
25 are forbidden by Federal or State law. The privileged log
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
1 doesn't seem to be specific enough.
2 Can you -- are you willing to produce something
3 more specific?
4 MR. TEPPER: III speak generically about these
5 documents. All of these documents were prepared for
6 discussion in closed section with the City Council and the
7 Redevelopment Agency Board. They're described under the
8 Brown Act -- the Ralph & Brown Act, as a part of
9 redevelopment -- redevelopment and real estate
10 negotiations, and it's actually Evidence Code Section
11 1040(b)(1) and (b)(2). And we believe that the burden of
12 production and the context of redevelopment negotiation
13 outweighs any relevance to anything in this case, and
14 that's really all we have to say.
15 Mr. Biggs can generically discuss any of these
16 documents. Other than the substance, he can describe where
17 they were produced, what they were produced for,
18 generically what they do, but that's about the substance of
19 our objections and the basis for our withholding them.
20 MR. TUCHMAN: Very good.
21 MR. TEPPER: Hold it. One at a time. One of you
22 is going to talk on record today. Which one is it going to
23 be? One person will ask questions.
24 MR. TUCHMAN: I'm asking questions, bufcertainly
25 both of us can meet and confer. Now, just the response to
1 that is, very briefly, that certainly if a document was
2 considered in closed session, that doesn't put it within a
3 zone or cloak of 1040(bxl) or (bx2). If it was prepared
4 for the meeting and considered as part of the meeting and
5 it was prepared for the meeting, that is different than
6 something that happened to be at the meeting. It's like a
7 document that's attorney/client privilege. It's a phone
8 book -- let's say it's a phone book. A phone book reviewed
9 by an attorney doesn't make it attorney/client. Well go
10 over Mr. Biggs' list
11 In addition, would you be willing to stipulate to
12 an in -camera review of the documents in court?
13 MR. TEPPER: If the Court wishes that in
14 conjunction with a Motion to Compel, of course we will
15 produce the documents in -camera.
16 MR. TUCHMAN: Okay. So you don't want to enter
17 into such stipulation? You'd rather us file a motion on
18 these issues?
19 MR. TEPPER: You may file whatever motion you
20 wish to file.
21 MR. TUCHMAN: Lastly, are you willing to give us
22 more information on this privileged log that you provided
23 us?
24 MR. TEPPER: I offered Mr. Biggs to describe each
25 with generality.
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DAVID BIGGS, 07.25.00
BUv%aNGTON V. HUNTINGTON CENTER
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MR. TUCHMAN: Thank you. Let's proceed.
EXAMINATION
BY MR. TUCHMAN:
Q. Okay. Would you state your name and address and
phone number for the record.
A. Sam It's David Biggs, 2000 Main Street,
Huntington Beach, California,, 92648.
Q. And what is your residence address?
MR. TEPPER: No, you don't have to answer that.
BY MR. TUCHMAN:
Q. You're not planning on leaving the City any time
soon?
A. Leaving the City?
Q. Yeah, as an employee.
A. Other than being in Los Angeles right now, no,
I'm not.
Q. You're not planning on leaving the City's employ,
Huntington Beach?
A. No.
Q. What is your current phone number?
A. (714)536-5582.
Q. And what is your current title?
A. Director of Economic Development.
Q. And where are you employed?
A. At the City of Huntington Beach.
Q. Are you employed by anyone else as we speak?
A. No.
Q. Okay. Have you ever had your deposition taken?
A. Yes.
Q. How many times?
A. Probably half a dozen times.
Q. Do you know the names of the cases?
A. No.
Q. When was the last time you had your deposition
taken?
A. Sometime last year, I think.
Q. Do you know what the name of that case was?
A. I'm sure Mr. Tepper would know the exact title.
It involves property in downtown. I don't recall the
specific title.
MR. TEPPER: You're the witness.
THE WITNESS: Thank you.
BY MR. TUCHMAN:
Q. You get to answer all the questions.
A. It involves property under the name Mulligan. I
don't know the precise title of the case.
Q. • Okay: And is that case still going on?
A. Yes, it is.
Q. Okay. What stage is it at?
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1 A. It's going to trial in September,
2 August/September.
3 Q. Okay. Do you remember when -- the names of any
4 other cases where you've had your deposition taken?
5 A. I don't recall without going back. I mean, I
6 have a 20-year public sector career. It's always involved
7 in litigation in one form or another.
8 Q. Very good. I'm going to go over a few of the
9 admonitions with you. Oh, by the way, did you review any
10 documents in preparation for your deposition today?
11 A. Not specifically. I just have a list of the
12 documents that were produced.
13 Q. Thank you. The oath that you've taken has the
14 same force and effect as if you were testifying in a court
15 of law and obligates you to tell the truth.
16 Do you understand that?
17 A. Yea
18 Q. After the transcript is completed, you'll be
19 asked to review it and sign it under penalty of perjury.
20 You can make certain corrections to the transcript, but at
21 the time of trial, I can comment on those changes and that
22 could prove embarrassing to you, so we ask that you give
23 your best testimony today.
24 Do you understand that?
25 A. Certainly. It's highly unlikely anything can
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i prove embarrassing, so —
2 Q. Okay. That's fine. If you answer — if you
3 'answer a question of mine or anybody else who is present,
4 we're going to assume you understand what's being asked.
5 Do you understand that?
6 A. Yes.
7 Q. If you don4 understand a question for any
8 reason, please ask me to clarify; okay?
9 A. Certainly.
10 Q. Is there any reason that you cannot proceed to
11 have your deposition taken today? Are you under some type
12 of medication or disability that would prevent you from
13 giving your best testimony?
14 A. No.
15 Q. I want to go over your educational background.
16 Where did you attend -high school?
17 A. I graduated from Capistrano Valley High School in
18 Orange County.
19 Q. What year?
20 A. 1978.
21 Q. And please tellme what you did after that.
22 ' A. I finished a Bachelor's degree at Cal State
23 University Fullerton in 1991, and then ultimately did my
24 Master's in business and public administration at
25 University California Irvine. I completed that at the end
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1 of 1984 and graduated in 1985.
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2 Q. What type of degree did you get at Fullerton?
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3 A. Bachelor's degree in political science with
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4 concentration in public administration and a minor in
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5 business.
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6 Q. Since leaving Irvine in 1995, have you had any
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7 other education?
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8 A. Yes, a variety of professional association coarse
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9 work, also a certificate from the University of California
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10 Santa Cruz, and continuous improvement In quality
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11 managemeaL
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12 Q. Do you hold any licenses as you sit here today
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13 except for your driver's license?
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14 A. No.
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15 Q. Have you held any Licenses issued by the State of
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16 California besides your driver's license since 1978?
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17 A. No.
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18 Q. Please describe your employment history.
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19 A. Starting when?
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20 Q. When was your first full-time job after Irvine?
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21 A. No, first fall -time job was starting in after I
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22 graduated from Cal State Fullerton in June of '81 with the
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23 City of Santa Ana.
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24 Q. What did you do for the City of Santa Ana?
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25 A. Started as a — in a planning position and
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1 finished there as a consultant, and I was called Economic I 1
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Development Analyst.
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Q. What years were you in Santa Ana?
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A. From 1980 to 1984:
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Q. What was your next full-time job?
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A. As a development project manager for the City of
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Long Beach.
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Q. How long did you have that job?
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A. It was 1984 to 1988.
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Q. And what did you do after that?
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A. I was a business development manager for a South
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Australian Technology Development Corporation.
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Q. Did you go to the private sector?
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A. No, it was a Governmental authority in the state
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of South Aastraft
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Q. How long were you in Australia?
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A. That was ftom 1988 till 1990.
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Q. What did you do after that?
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A. 1990, I became Economic Development Director for
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the City of Morgan HIR, and two years after that I became
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a City's — a City Manager.
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Q. Morgan Hill is located where?
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A. In Santa Clara County.
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Q. 1992 you became City Manager, you say?
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A. Yes.
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Q. How long were you City Manager at Morgan Hill?
A. Till199S.
Q. And then where did you go?
A. City of Huntington Beach to become Economic
Development Director.
Q. And you held the position with the City of
Huntington Beach as Economic Development Director since
1995?
A. Yes.
Q. Do you have a supervisor?
A. Yes.
Q. Who is your supervisor?
A. Currently it's the City Administrator,
Ray Silver.
Q. Have your duties as Economic Development
Director at the City of Huntington remained the same since
the time you started in 1995 till the present, which is the
year 2000?
A. Yes.
Q. Substantially, what are those duties?
A. I am also primarily responsible for the City's
redevelopment activities, business development activities,
affordable housing development, and the Community
Development Block Grant Program.
Q. Affordable housing is what?
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A. Development of housing that meets certain
affordability requirements.
Q. Community Development Block is what?
A. Community Development Block Grant is the Federal
fund that goes to cities on an annual basis for a variety
of social services and public work programs.
Q. What does business development mean?
A. Business attraction, retention, expansion
efforts.
MR. TUCHMAN: Can you repeat his answer?
(Whereupon the previous answer was read
back by the court reporter as requested.)
BY MR. TUCHMAN:
Q. That's basically to bring business to the city?
A. Or help existing businesses expand or keep them
in the city, yes.
Q. And then you said that you're in charge of
redevelopment activity?
A. Yes.
Q. What does that mean?
A. The city has one merged street development
project area that consists of five sub areas, and through a
variety of programs and efforts, encourage the
revitalization of that area in conformance with the
Redevelopment Program.
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
1 Q. One of those areas is called the Edinger
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2 Corridor?
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3 A No, it's Huntington Center.
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4. Q. And that's where Burlington Coat Factory is
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5 located?
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6 A. Yes.
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7 Q. Now, do you know what the duties of Ray Silver,
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8 the City Administrator, are? •
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9 A. Yes.
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10 Q. What are those duties?
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11 A. Generally, he's the Chief Administrator Officer
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12 of the City. He directs the efforts of all the staff of
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13 achieving the City's goals and objectives at the direction
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14 of -- policy direction provided by the City Council.
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15 Q. Do you, Mr. Biggs, hold any other title besides
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16 the manager of the Economic Development Program?
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17 MR. SHIPOW: Objection. Mischaracterizes the
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18 testimony. He's the director.
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19 BY MR. TUCHMAN:
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20 Q. You can answer the question.
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21 A. As the Director of Economic Development, no. The
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22 job is as described, a day -today administrator in the
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23 Redevelopment Agency and all the programs that are outlined
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24 for you.
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25 Q. I understand your answer, but do you have any
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other titles for the City of Huntington Beach?
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A. I don't believe so, but —
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Q. Okay.
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A. -- you know, we have a separate public finance
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corporation. I don't know. I don't recall offhand if I
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was an officer of any of those.
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Q. Okay. That's fine. Have you ever had any other
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titles at the City of Huntington Beach besides the Director
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of the Economic Development Department?
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A. No.
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Q. Have you been the only director of the Economic
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Development Department at the City of Huntington Beach
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between 1995 and the year 2000?
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A. Since I started in October of 1995, yes
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Q. Okay. I want you to tell me,.please, as we sit
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here today, who the — who the people are in — the people
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in your department; their names.
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A. Their names? Let's see. I'll go office by
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office is easier. Linda"Suracci is one; Luann Brunson is
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another.
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Q. I'm sorry, Suracci is S-u-r-a-c-i?
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A. Yes.
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Q. And the other one is?
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A. Luann Brunson; L-a-a-u-n, B-r-u-n-s-o-n;
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Laura Nelson; Bobbie Purdue; Tom Andreski; contract
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employee, Jim Benson; Steve Holtz Gus (Arran; Carol Runzel;
Jim Lamb; EJI Naffah.. That's N-a-f-t a-b. And another
contract employee, Joyce, just started. I can't remember
her last name. We have a summer intern named Richard Juge,
J-u-g-e.
Q. Now, were all these people that you just listed
except for the summer intern, are they there throughout the
year2000?
A. No. You're taildng about during my tenure?
Q. Let me withdraw the question. Has Linda Suracci
worked on the redevelopment of the Huntington Center?
A. She's my administrative assistant so, yes, she
does sometimes process documents and things.
Q. So her title is administrative assistant.
Luann Brunson, her title is?
A. She's the senior administrator analyst.
Q. Has she worked on the Huntington Center at all?
A. Welk she may because she does the budget and
things, so to the extent there's budget activities related
to Huntington Center.
Q. Okay. Do you have a second in command?
A. Gus Duran is the Housing and Redevelopment
Manager.
Q. He reports directly to you?
A. Yes, he does
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Q. And you would describe him as your second in
command?
A. Yes
Q. No, I'm sorry —
A. Noyes. When I'm out of the office, he acts as
the acting director.
Q. Laura Nelson's title?
A. Office specialist
Q. Has Laura Nelson worked on the Huntington Center?
A. I don't know offhand. She's one of our two
clerical support people.
Q. And Bobbie Purdue, that's —
A. She's an administrative secretary; again, office
support position.
Q. And Tom Andreski?
A. He's an assistant project manager. I don't think
he specifically worked on Huntington Center.
Q. But he has been the contact person with EDAW?
A. Yes, he's doing the Edinger Corridor Specific
Planning effort in an economic action plan.
Q. Okay. What is that now?
A. That's an effort to look at what we call Edinger
Corridor between Beach Boulevard and Goldenwest. It
will speak out to all the action plans and specific plans,
basically for the areas excluding Huntington Center, which
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has its own specific plan, It basically goes from the
freeway and McFadden Avenue over to a commercial strip
along Edinger.
Q. Does EDAW, with its scope of work that its been
assigned, have anything to do with Huntington Center?
A. Only to the extent they need to incorporate the
specific plan that's been done there and the design
guidelines and things, review what's been accomplished so
far with that effort.
Q. Does EDAW render any type of vision to the City
with respect to how Huntington Center should be developed
within the Huntington Center boundary?
A. No. Matter of fact, that contract has jest been
let, so we haven't really had a kickoff meeting for that
effort yet.
Q. Thank you. The Jim Benson contract employee,
does he have any contact with Huntington Center?
A. No.
Q. Steve Holtz, any contact with Huntington Center?
A. I don't believe so.
Q. Carol Ruazel, any contact with Huntington Center?
A. I don't believe so. • .
Q. Jim lamb, any contact with Huntington Center?
A. Yeah, Jim does, in part, a retell recruitment and
attraction efforts, so I know he talks to the leasing
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1 people to get updates and make referrals to him as far as I 1
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the tenants' interests that we hear about.
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Q. What's Jim Lamb's title?
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A.He's the Development Project Manager.
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Q. What does a Development Project Manager do?
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A. Well, his particular role, he's responsible —
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he's a division manager for the Business Development
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Program.
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Q. Eli Naffah, does he have any contact with
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Huntington Center?
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A. No, I don't believe so.
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Q. Joyce, the contract employee, any contract?
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A. No.
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Q. Summer intern?
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A. I don't believe so.
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Q. Okay. There's a Planning Department at the City
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of Huntington Beach; is that correct?
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A. Yes, there Is.
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Q. What is the relationship of your department, the
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EDD, with planning?
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A. Well, you know, it's all part of the same City
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organization, so they are processing entitlements for
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projects that we have interest in, either redevelopment
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projects or sometimes helping other businesses get through
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the system or one of the departments that review
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DAVID BIGGS, 07,25.00
BU NGTON V. HUNTINGTON CENTER
L (PlaiatiWs Exhibit 1 was marked
1
2 for identification by the court
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3 reporter and is attached hereto.)
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4 BY MR. TUCHMAN:
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5 Q. And the Subpoena that was personally addressed to
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6 you in the Notice of Depo is attached as Exhibit 2; is that
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7 correct? Please take a look.
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8 A. Yes, I believe so.
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9 (Plaintiffs Exhibit 2 was marked
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10 for identification by the court
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11 reporter and is attached hereto.)
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12 BY MR. TUCHMAN:
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13 Q. Okay. Now, the documents which you've been asked
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14 for, which are reflected in attachments in both Exhibits 1
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15 and 2, did you cause the documents to be prepared that are
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16 responsive to the Subpoenas to the cities as well as to
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17 you?
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18 A. We bad the documents produced. I worked with my
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19 staff to do so. Pursuant to the request received in regard
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20 to me and for the Redevelopment Agency, we did produce the
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21 documents that are In our possession.
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22 Q. Okay. Now, does each department have its own
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23 files?
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24 A. Yes.
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25 Q. Okay. Now, the files that you produced, did you
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1 personally put the documents together, or did you have
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2 someone do that for you?
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3 A. Part of it I did; part of it Gus Duran did.
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4 Q. Okay. And do you know if documents from other
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5 departments other than the Economic Development Department
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6 were provided?-
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7 A. I don't recall the extent we had copies of the
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8 specific plan, which was a planning dock, then yes, I
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9 believe they were included, but I'd have to go back over
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10 the list.
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11 Q. Well, do you know if the Planning Department's
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12 files were provided?
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13 A. I don't know. They were separately asked for.
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14 Q. Okay. And how do you know they were separately
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15 asked for?
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16 A. Well, because I understand tKe same Subpoena went
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17 to Howard Zelefsky.
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18 - MR. TUCHMAN: Very good. And the documents that
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19 were taken out or withheld, I'm going to ask the reporter
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20 to mark for identification is Exhibit 3. You guys have
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21 copies of the list?
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22 THE WITNESS: Yes, the ones withheld, yes.
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23 BY MR. TUCHMAN:
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24 Q. Do you know who prepared Exhibit 3?
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25 MR. TEPPER: I did.
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MR. TUCHMAN: Okay.
(Plaintiffs Exhibit 3 was marked
for identification by the court,
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. Are you familiar with the documents that are
listed on Exhibit 3?
A. Yes.
Q. Okay. Do you know why the documents that are
listed on Exhibit 3 were withheld?
A. Yes, because we were still in negotiations with
the developer for negotiation of owner participation
agreement, and these are the documents we're using to guide
those negotiations getting direction from our City Council.
Q. And when you say "owner participation agreement,"
who are you currently negotiating with?
A. With Ezralow Retail Properties and to the
Huntington Center Associates, LLC.
Q. Under what authority are you negotiating with
Ezralow and Huntington Center Associates?
A. State development law in the action of the Agency
Board to direct staff and negotiate with them.
Q. When did that actually take place?
A. Recently within the last four to six weeks. I
don't recall the specific date.
27
Q. Was that on June 19, 2000?
A. I don't recall the specific date. Recently — in
that time frame without having the document in front of me
or a calendar.
Q. Have you determined whether any additional OPAs
should be entered into?
A. No. At this point, we're under direction to
negotiate with Ezralow for redevelopment of Huntington
Center.
Q. Is it possible, in your experience as the
Director of Economic Development, to negotiate an OPA with
Montgomery Ward?
MR. SHIPOW: Objection. Calls for speculation.
Lack of foundation.
BY MR. TUCHMAN:
Q. You can answer.
A. Not at the time. But we're under direction to
negotiate exclusively with a single entity.
Q. Why is it necessary — have you been told why
it's necessary to only negotiate with Ezralow?
A. That was the direction provided by the Agency
Board.
Q. And the Agency Board is the same as the City
Council?
A. Yes.
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i
Q. Has anyone told you to negotiate an OPA with
2
Montgomery Ward?
3
A. No.
4
Q. Has anyone told you to negotiate an OPA with
5
Burlington Coat Factory?
6
A. No.
7
Q. In your experience as the Director of the
8
Economic Development Department and as Person Most
f
9
Knowledgeable for the Redevelopment Agency, is there
10
anything to prevent the Redevelopment Agency from directing
It
11
you to enter into or negotiate an OPA with Burlington Coat
1'
12
Factory?
1:
13
A. I would think at this point in time since we're
1:
14
already ender direction and we had — went through our
14
15
owner participation process, that the party with whom we're
1_
16
negotiating would have some rights under that action. So,
it
17
yea I think until we have either successfully or
1 d
18
unsuccessfully concluded our negotiations with the party
lE
19
with whom we're exclusively negotiating, no, we cannot
1S
20
enter into discussions with other entities.
2C
21
Q. With respect to the five redevelopment zones, and
21
22
particularly we're talking about the one at Huntington
22
23
Center, is it ever — has it ever — the Economic
23
24
Development Department ever negotiated several OPAs for one
24
25
section?
25
29
1
A. Not within my tenure.
1
2
Q. Do you know if that has ever been discussed for
2
3
any of the five sections?
3
4
A. The downtown area there's — where there's —
4
5
there's been owner participations negotiated with
5
6
individual property owners as part of; like, a sea front
6
7
ficade improvement program, but it wasn't a large,
7
8
comprehensive development as contemplated for Huntington
8
9
Center. I'm trying to think.
9
10
There was one owner participation agreement that
10
11
had a master developer on the site into which they brought
11
12
four or five small property owners, and they entered into a
12
13
joint venture and a joint participation agreement, but to
13
14
the best of my knowledge, have not been separate ones on
14
15
what they view as a single site.-
15
_
16
Q. As the Director of the Economic Development
16
17
Department and as the Person Most Knowledgeable for the
17
18
Redevelopment Agency, is it possible that the Huntington
18
19
Center could be developed under several OPAs?
19
20
MR. SHIPOW: Objection. Calls for speculation.
20
21
Lack of foundation.
21
22
THE WITNESS: it is possible, certainly.
22
23
BY MR. TUCHMAN:
23
24
Q. Okay. We were talking about the documents before
24
25
we digressed. I note that Nos. I through 32 are listed.
25
30
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BURLINGTON V. HUNTINGTON CENTER
1 meetings besides the closed session meeting?
2 A. I don't recall.
3 Q. is that possible?
4 A. I don't recall.
5 MR. SHIPOW: Calls for speculation.
6 BY MR. TUCHMAN:
7 Q. Now, do you know if you've ever discussed the
8 developer qualifications in meetings other than closed
9 sessions?
10 A. Yes, we had discussed it at the time that we made
l 1 the selection based on the participation process. There
12 was some information included in that package and that was
13 as part of the records which were produced.
14 Q. Second thing, Item 32, memo, Ezralow background
15 check. It says it's authorized by Carol Freholm,
16 F-r-e-h-o-I-m, and Lynn Sedway, L-y-n-n; Sedway,
17 S-e-d-w-a-y. Who are those two people?
18 A. They're both principals with — excuse me — an
19 economic advisory firm that we utilize, the Sedway Group.
20 Q. And what is the purpose of the Sedway Group?
21 A. We use them for — they provide sometimes market
22 assessments for us. They also sometimes assist us as part
23 of our negotiating team on redevelopment projects. Those
24 are the two main ways we use them.
25 Q. Now, this is a memo prepared by the Sedway Group
33
1 analyzing Ezralow?
2 A. They — my recollection is they contacted people
3 that they knew in both the public and private sector in
4 reference to Ezralow, the developer, and the types of
5 projects they had undertaken.
6 Q. How many pages is that memo, if you recall?
7 A. I don't recall.
8 Q. The next item, 8/16/99, which is Item 30, it says
9 "Closed Session Outline." This is authored by
10 David Biggs. How long was that outline?
11 A. It would probably only be —just thinking back
12 to any of the closed sessions, a closed session outline is
13 probably only a page or two.
14 Q. And the closed session — what was the purpose
15 of that closed session?
16 A. For the Agency Board to give its negotiators
17 direction in tegard to real estate transactions.
18 Q. Do you know who was in attendance -- or strike
19 that
20 The Closed Session Outline dated 8/16/99, when
21 was that closed session?
22 A. Well, without a calendar in front of me, if
23 8/16/99 was a Monday, it was probably on 8/16/99. Without
24 the document in front of me, I don't know if the date
25 refers to the date it was produced or the day of the
34
1 session.
2 Q. 8/16/99 is a Monday, by the way.
3 A. It was probably for the Council meeting dated
4 8/16/99.
5 Q. Okay. Do you know how long that closed session
6 lasted on 8/16?
7 A. No, I don't recalL
8 Q. Do you know if it was right before a Council
9 meeting?
10 A. They usually are, yes.
11 Q. Who called for that closed session?
12 A. I'm usually the one who prepares the request for
13 the closed session.
14 Q. Was there anything that was determined or decided
15 at that closed session?
16 A. No. If there would have been, there would have
17 been an announcement at the conclusion of the closed
18 session.
19 Q. By virtue of the fact there was no announcement,
20 you were able to tell there was no -- there was no decision
21 or resolution?
22 A. No. If anything, we get general direction as to
23 negotiations, and until we actually have a conclusion of
24 our negotiations, then it comes forward in a public meeting
25 in a form of an owner participation agreement which would
W
1 be subject to a public hearing with all the required
2 noticing and documentation. So there could be' no final
3 decision on negotiations. That has to occur in an open
4 session.
5 Q. Now, why did you have closed sessions to discuss
6 Ezralow before Ezralow owned the property?
7 A. Well, I'll have to go back and recreate -- we
8 were in negotiations during that time with Macerich in
9 relationship to their ownership of the center, and we were
10 exploring options in relationship to their plans to sell
it the center.
12 MR. TUCHMAN: Macerich is M-a-c-e-r-i-c-h.
13 BY MR. TUCHMAN:
14 Q. Well, were you, as the Director of the Economic
15 Development Department, pleased that Macerich was selling
16 out?
17 A. I don't know if I'd describe it as pleased. Our
18 goal is to see that something happens with Huntington
19 Center, and if Macerich didn't want to undertake the
20 redevelopment of the center, then, you know, I guess they
21 said someone else bought it that had an interest in doing
22 so was a positive thing. I don't think really pleased has
23 anything to do with it.
24 Q. Macerich couldn't get -- could not -- could not
25 get the property developed; is that right?
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t#
I A. I don't believe that would be the case. I think
2 they chose not to do it.
3 Q. Okay. Do you know why they chose not to do it?
4 A. No. I would be speculating.
5 Q. Okay. Now, did you, on August 2, 1999, announc
6 the forthcoming sale by Macerich of the Huntington Mall
1 Ezralow?
8 A. I don't recall
9 Q. Okay. Is there some reason why on August 2,
10 1999, you made this announcement?
11 A. Are you referring to a specific announcement o
12 Q. Oh, yeah, an announcement made in a meeting on
13 8/2/99.
14 A. Well, if you'd like to show me what you're
15 referring to, it might refresh my memory, but I don't
16 recall specifically a particular announcement.
17 Q. Okay. I'm looking at the Minutes, but that's
18 fine.
19 A. Minutes for what?
20 Q. 8/2/99 Council Agency Minutes.
21 MR. TEPPER: If you don'tremember in the absence
22 of a document being produced for you, you don't have to
23 speculate.
24 THE WITNESS: Okay. I don't recall.
25
J
1 BY MR. TUCHMAN:
2 Q. Okay. III show you — I11 mark as Exhibit 4,
3 it's a City Council Study Session & Special Sessions.
4 They're a collection of pages of Minutes.
5 (Plaintiffs Exhibit 4 was marked
6 for identification by the court
7 reporter and is attached hereto.)
8 BY MR. TUCHMAN:
9 Q. U you look at the 8M99, I think it's page 7,
10 the very back page is where I'm looking. It says,
11 "Announcement Regarding Sale of Huntington Center Mall to
12 Ezralow Properties Edinger."
13 Do you see that?
14 A. Yes.
15 Q. Does that refresh your recollection with respect
16 to the announcement you made on 8/2/99?
17 A. I believe it was in response to a question from a
18 Council member, and it was because there was a study
19 session earlier in the day where Ezralow came in as the
20 proposed purchaser of the mail and presented their
21 qualifications as a developer.
22 Q. And did they present any written documents at the
23 study session?
24 A. I don't recall.
25 Q. Okay. Now, the closed session outline that you
38 S
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1 middle page. Take a look there. Julian is J-u-1-i-a-n.
1
2 Hang on a second. It looks like it's the face page right
2
3 here. Pm sorry.
3
4 A. What's the date of it?
4
5 Q. It's September 7th. Were you in attendance at
5
6 that meeting? These are the Minutes of the City Council
6
7 Redevelopment Agency, City of Huntington Beach.
7
8 A. Yes, I believe so.
8
9 Q. It says, "Bryan Ezralow, President of Ezralow
9
10 Company, introduced partners Doug Gray and Gary Freedman as
10
11 City Council members." It says on the next -- top of the
11
12 next page, "In response to the question by Planning
12
13 Commissioner Ed Laird," L-a-i-r-d, "the Ezralow Company's
13
14 representatives informed him that the company was
14
15 approaching the project as a Redevelopment Agency -assisted
15
16 project.-"
16
17 As of.September 7, 1999, to your knowledge, what
17
18 did the Redevelopment Agency represent to Ezralow relative
18
19 to their anticipated purchase of the shopping center?
19
20 MR. TEPPER: Objection. Calls for speculation as
20
21 to what Ezralow thought they were going to get out of
21
22 this.
22
23 You can answer.
23
24 THE WITNESS: Well, also I'm confused. You asked
24
25 another question about Council Member Julian and referred
25
41
1 to this document.
1
2 BY MR. TUCHMAN:
2
3 Q. Yeah.
3
4 A. Well, what did that have to do with this
4
5 document? You talked about Council Member Julian.
5
6 Q. Oh, yeah.
6
7 A. Okay. Well, I'm sorry. I don't understand the
7
8 reference to that Could you please finish with the first
8
9 question that you asked?
9
10 Q. You said you didn't remember, so I moved on.
10
11 A. Okay. Well, I'm sorry. I didn't realize that,
11
12 because it sounded like you referred to this in
12
13 relationship to this gaesdom
13
14 At this point in time, the specific quote here
14
15 was Mr. IAfrd, as many of our Planning Commissioners and
15
16 council members, they want to know -up front if the project
16
17 is going to be asking for a planning assistant The
17
18 developers indicating they were hopeful that the
18
19 Redevelopment Agency would assist financially with the
19
20 project.
20
21 MR. SHIPOW: Can I have that answer read back?
21
22 (Whereupon the previous answer was read
22
23 back by the court reporter as requested.)
23
24 BY MR. TUCHMAN:
24
25 Q. Did Ezralow ever get the financial assistance
25
42
from the Redevelopment Agency?
A. That's the subject of the current negotiations.
Q. What did the Economic Development Department and
the Redevelopment Agency say to Ezralow prior to
November 16, 1999, relative to assisting them in that
project?
A. Well, relative to financial assistance, we had —
they knew, and they bad from Macerich, proposals. We had
been going back and forth for financial assistance for the
Macericb project, so they -- I believe they had an
expectation that they would get financial assistance as
long as they produced a project of similar quality or
better.
Q. Now, when you say "financial assistance," does
that mean money or adjustments on fees or something else?
A. Typically, it's in transactions we've been doing
similar to Huntington Beach where it's working with our
financial consultants to identify if there's a financial
feasibility gap given what the project is.
Usually, we don't do fee waivers or adjustments,
but the developer has to front all project costs if we
determine there Is a supportable gap. After some
negotiations we may agree to repay that gap over a period
of time after project completion from certain
project -generated revenues, but we don't put any, cash In
43
the project up front, nor do we waive fees.
Q. What financial assistance did you offer or did
you, at the Redevelopment Agency, offer Ezralow prior to
November 16, 1999?
MR. SHIPOW: Objection. That may call for
confidential information protected by the Evidence Code
sections.
THE WITNESS: And I don't believe anything
specific. If we asked them to submit Pro Formas for
analysis, and we're really in those discussions at this
point in time as far as what the financial package might be
for the redevelopment of the center.
BY MR. TUCHMAN:
Q. You're talking about financial assistance. I
want to know — expand the question now to other assistance
that the Redevelopment Agency can provide as assistance to
Ezralow. Prior to November 16, 1999, was there any other
assistance that was discussed?
A. I don't recall specifically. You know, we do
provide assistance in helping people get through the
entitlement system. We were co -applicant for the specific
plan, those kinds of things, you know. We make referrals.
Ezralow, for example, was working with some other smaller
tenants to have them move out of the center, those whose
leases were up. And the Business Development staff gave
44
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People Ilsts of centers in the city that have vacant space
available, things like that; provide them with information
about small business lending, things passed on to tenants.
We also do work In retail recruitment effort,
and that's ongoing lending city-wide, retail recruitments
for retail prospectives. So we have a booth each year at
the International Shopping Center, which we market at
Huntington Beach for retailers to locate. So we refer
people and have them market materials for Huntington Celle
as far as the retail projects in the city.
Q. You mentioned co -applicant. I didn't understand
that.
A. The Redevelopment Agency was a co -applicant for
the specific pis&
Q. When?
A. It goes back to even when Macerich was an
applicant. We were co -applicant for the original specific
PIM
Q. And there's a written document that reflects
that?
A. Yes.
Q. When -- was it the Redevelopment Agency and the
City were co -applicants with Ezralow?
A. The — Howard Zelefsky would be better equipped
to explain that, but we always view the City as processing
45
a specific plan. The City usually is processing specific
plans. It's not usual that the Redevelopment Agency would
be a co -applicant. We have dome it, and we did it with the
application by Macerich. In the case of the Edinger
Corridor Specific Plan, the Redevelopment Agency is the
applicant there. So the City and the Redevelopment Agency
are the co -applicant for the Edinger Corridor Specific
plan,
Q. Now, did the Redevelopment Agency ever say to
Ezralow that, "Were going to use our police powers to
condemn out Burlington?"
A. No. We had general discussions(teducations about
the different powers Redevelopment has, but we always
viewed that being the developer's role to endeavor to
address existing tenants and lease interests in property
application decisions. So, no, other than just educational
kinds of Information as to, "Do we have the ability to
utilize our imminent domain authority in the redevelopment
project area?" And specifically — no specific discussions
as far as tenants In the time frame you're talking about.
Q. Well, I'm talking about now a time frame that is
all the way up until today. Have you ever, as the Person
Most Knowledgeable from the Redevelopment Agency, and as the
Director of the Economic Development Department for the
City of Huntington Beach, ever had any conversations with
46
]ILIO & ASSOCIATES CERT1
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
t responsibility as a private property owner to address the
2 situation mach to the fabrications I see you making in
3 reladoneNp to the supposed things that have occurred. We
4 really have tried to stay out of it.
5 Q. Why have you tried to stay out of it?
6 A. Because at this point in time, one, we don't have
7 any sort of agreement with Ezralow to assist them
8 financially or otherwise with the project, and that will
9 come forward through a public approval process when and K
10 that occurs; No. 2, we don't litre to get mired In private
11 party disputes.
12 Q. You want to save the tax payers some money?
13 MR. SHIPOW: Objection. Argumentative.
14 THE WITNESS:. I'm not doing the City a whole lot
15 of good sitting here for three or four hours as far as
16 getting ahead of things and getting things done.
17 BY MR. TUCHMAN:
18 Q. I still haven't gotten a complete answer. How
19 many times have you discussed Burlington? I'm not
20 interested in Dollar Dazzle or the optometrist.
21 A. I don't recall.
22 Q. Is it more than five?
23 A. Probably would be more than five. It's not
24 something that's discussed every time we meet, but, you
25 .know, generally, they would give as the status on how
49
1 they're doing with a variety of tenants as far as
2 recruitment and/or trying to, you know, incorporate people
3 into the center.
4 Q. Do you ever speak to Mr. James Hughes?
5 A. Occasionally.
6 Q. How many times have you spoken to Mr. James
7 Hughes?
8 A. He's quite often in meetings where we meet with
9 Ezralow where we have our attorney present, but to the
10 extent he's in those meetings, it's probably been — oh, I
11 don't know — six, six to eight times.
12 Q. Prior to December of 1999, how many times did you
13 meet with James Hughes?
14 A. I don't recall specifically.
15 Q. More than three?
16 A. I don't recall. I couldn't telCyou if it was
17 before December of'" or after December of'".
18 Q. Did you ever meet James Hughes prior to December
19 of '99T
20 A. I don't recall specifically.
21 Q. Okay.
22 Q. Did you ever speak to an attorney named John
23 Dee?
24 A. John Dee, I know who he is. I don't recall it I
25 ever spoke with him.
I Q. Did you ever speak with a Mr. Shipow, who is to
2 your right?
3 A. I met him for the Ilrst time today.
4 Q. Have you spoken with him on the phone regarding
5 your declaration that you provided?
6 A. No, I don't reca0.
7 Q. You did provide a declaration in this case?
8 A. Yes, a declaration, yes. I don't recall spealdng
9 with Mark about iL
10 Q. Who did you meet with regarding the declaration?
11 A. Mr. Tepper.
12 Q. And that was back in March -- let me see here.
13 That was back in March of 2000?
14 A. It would have been at the time the declaration
15 was prepared.
16 Q. Okay. Why did you prepare the declaration?
17 MR. TEPPER: To the extent that that relies on
18 attomey/client advice, I would assert an attorney/client
19 privilege.
20 BY MR. TUCHMAN:
21 Q. Okay. Do you know why you prepared the
22 declaration?
23 THE WITNESS: Do you want me to —
24 MR. TEPPER: I think he's — you can answer "yes"
25 or "no" to the question.
51
1 THE WITNESS: Well, if you71 refresh my memory
2 by providing me with the declaration.
3 BY MR. TUCHMAN:
4 Q. You want to see?
5 A. Yeah, I mean, I do lots of declarations in
6 litigation. This isn't the only case in which we're being
7 sued as a City.
8 MR. TUCHMAN: Okay. I'm going to ask the
9 reporter to mark for identification as Exhibit 5 the
10 declaration of David Biggs. III have to make an extra
11 copy.. Hang on one second.
12 (Plaintiffs Exhibit 5 was marked
13 for identification by the court
14 reporter and is attached hereto.)
15 MR. TEPPER: I'm going to take a short break for
16 the bathroom and other purposes.
17 MR. TUCHMAN: Very good. Let's take a short
18 break.
19 (A brief recess was taken.)
20 MR. TUCHMAN: Let's go back on the record.
21 BY MR. TUCHMAN:-
22 Q. I provided you with Exhibit 5, the declaration of
23 David Biggs. Do you have it in front of you?
24 A. Yes.
25 Q. Did you have a chance to review it?
M
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0
1 A. Yes.
1
2 Q. Is that your signature on page 3 of the
2
3 declaration?
3
4 A. Yes.
4
5 Q. Okay. And you signed this on or about
5
6 March 20th, 2000; is that correct?
6
7 A. Yes.
7
8 Q. And why did you provide this declaration?
8
9 MR. TEPPER: Subject to the attorney/client
9
10 privilege.
1C
11 THE WITNESS: My recollection is that we were
11
12 asked to do so. Actually, it came to me via Mr. Tepper's
12
13 office, and I think we were asked for it by Ezralow in
13
14 relationship to litigation they had pending at that moment.
14
15 BY MR. TUCHMAN:
15
16 Q. Okay. Did you explain to anybody that the City
16
17 didnI want to get involved in the litigation and so it
17
18 would not provide the declaration?
18
19 A. Well, at this point in time, the reason we
19
20 provided the declaration ia, specifically, we had an,
20
21 interest in moving forward with the specific plan, and if I
21
22 recall, this was an endeavor to preclude that. So it
22
23 wasn't the City's interest in this particular matter to
23
24 provide a declaration in that regard.
24
25 MR. TUCHMAN: I'd like to have the question and
25
53
1
answer back.
1
2
(Whereupon the previous question and answer were
2
3
read back by the court reporter as requested.)
3
4
MR. TUCHMAN: Can I have my question read back?
4
5
(Whereupon the previous question was read
5
6
back by the court reporter as requested.)
6
7
THE WITNESS: Could you clarify? In particular
7
8
response to this declaration or --
8
9
BY MR. TUCHMAN:
9
10
Q. Yes. As of March 20th, 2000, did you say to
10
11
anybody, "I don't want to provide a declaration. The City
I
12
doesn't want to get involved"?
12
13
MR. SHIPOW: Objection. Argumentative.
13
14
THE WITNESS: No. I think you're taking out of
14
15
context my earlier statement. So we generally try to avoid
15
--
16
litigation and we weren'tthe instigators of litigation in
16
17
this particular regard.
17
18
BY MR. TUCHMAN:
18
19
Q. Okay. I'm going to ask it again. Did you
19
20
explain to anybody on March 20th, 2000, that the City did
20
21
not want to provide a declaration because it -did not want
21
22
to get involved in litigation?
22
23
A. I don't recall.
23
24
Q. Okay., Was there another declaration that was
24
25
provided to you by Mr. Shipow?
25
54
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1
and one or two of her associates. It varies from meeting
1
2
to meeting.
2
3
Q. Who is Saybrook Capital?
3
4
A. Saybrook Capital, I think they're serving as a
4
5
financial advisor to Ezralow.
5
6
MR. TUCHMAN: S-a-y-b-ro-o-k.
6
7
BY MR. TUCHMAN:
7
8
Q. Now, Saybrook Capital, they're not — they
8
9
haven't been hired by the City; is that right?
9
10
A. No.
10
11
Q. The City hired Keyser Marston?
11
12
A. Keyser Marston.
12
13
Q. K-e-y-s-e-r, Marston, who is. that?
13
14
A. They're a financial advisory economic analysis
14
15
firm that we use. They and Sedway. We rotate between two
15
l6
firms for economic and financial advisory work.
16
17
Q. Why did you use both Sedway and Keyser Marston in
17
18
this case?
18
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A. Well, when we used Sedway earlier on, that was
19
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before we actually were in financial discussions, and we
20
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used Sedway because they have — I'll describe, they're as
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being — you know, Keyser Marston does some market
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assistance. Sedway is the stronger firm in my mind as far
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as knowing players in the retail industry and having a
24
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better knowledge of retail development as far as the
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57
1 marketplace.
1
2 Q. What information did you seek from any source as
2
3 to Burlington Coat Factory?
3
4 A. At which — what kind of information do you --
4
5 Q. Financial information, background, lease
5
6 information, anything.
6
7 A. Well, we did our request for owner participation
7
8 into which there was a very limited response from
8
9 Burlington.
9
10 Q. Well, I'm talking about work that you had a
10
11 consultant do like Sedway or —
11
12 A. We didn't have them look at Burlington. We
12
13 weren't looking that specific at that point in time. We
13
14 were not looking — we were only looking at the question
14
15 that Macerich had selected to sell the center to Ezralow,
15
16 so we were doing some background information on Ezralow.
16
17 Q. As of March 20th, 1999, when you did this
17
18 declaration, Exhibit 5, did you have -- did you, at the
18
19 Economic Development Department at the City of Huntington
19
20 Beach, have the Burlington lease in your possession?
20•
21 A. I don't believe so. I don't think I've ever seen
21
22 a Burlington lease.
22
23 Q. Do you know when that lease expires?
23
24 A. No, not offhand.
24
25 Q. Do you know that that lease is a long-term lease?
25
58
A. We do know it exceeds the term that requires — I
do know the term is longer than that that requires us to
consider them in an owner participation process.
Q. Whether there's 20 years remaining on the lease?
A. I don't recall if that's the definition, so —
but based on the advice of Mr. Kane, when he —
MR. TEPPER: Easy. I would caution the witness
about the anomey/client privilege.
THE WITNESS: Okay.
BY MR. TUCHMAN:
Q. Mr. Biggs, did you ever direct anyone at the
Economic Development Department or any employee at the City
of Huntington Beach not to communicate with anybody from
Burlington Coat Factory?
A. No, not at all.
Q. Did you ever direct anyone in the Economic
Development Department or any other employee or agency in
the City of Huntington Beach to provide misinformation to
Burlington Coat Factory?
A. No, not to the best of my knowledge.
Q. Now, Keyser Marston, what information did you
provide Keyser Marston?
A. Well, we used Keyser Marston in this regard, they
get the Pro Formas from the developer that talks about the
scope of the development, the cost, the anticipated revenue
59
that tenants would be paying. They do an analysis of that,
whether or not those costa and revenues are reasonable in
the marketplace, and they basically prepare this gap
analysis, so —
MR. TEPPER: Did you get that, "gap"?
THE Wfi'NESS: Gap analysis.
MR. TEPPER: Perhaps it's just my ears.
BY MR. TUCHMAN:
Q. When you say "gap," do you mean g-a-p or g-a-a-p?
A. Ga-p.
Q. And the gap analysis means if -- they might need
financial assistance to make sure the project gets done?
A. Right. If you look at their — very simple
explanation is when you talk about development economics
being relatively simple math, you've got certain costs
associated with developing a project, land and
construction, interest, other professional fees. You take
the total anticipated income from the project and using
some generally accepted capitalization rates, you look at
how much cost the income will support in giving the
developer a reasonable return on their investment. If the
income doesn't support the reasonable cost, then that's a
gap,
Q. What assistance has Ezralow asked you from the
City of Huntington Beach as the Economic Development
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Director and as the Person Most Knowledgeable from the
Economic Development — or from the Redevelopment Agency,
what assistance has Eaalow asked from you?
MR. SHIPOW: Objection. May call for
confidential information.
THE WITNESS: That's still being negotiated.
BY MR. TUCHMAN:
Q. What assistance have they asked of you relative
to Burlington Coat Factory?
A. None at this point in time.
Q. They've never asked you for any assistance? No
one from Ezralow has ever asked the Redevelopment Agency or
the Economic Development Department for any assistance of
any kind in the suit against Burlington Coat Factory?
A. In regard to the litigations, no. When you say
"assistance," again, financial assistance is not divied out
based on tenants in the center or not in the center. And
other than that, there's been no specific request for
assistance in regard to Burlington or Montgomery Ward's or
any other tewwL
Q. What was the conclusion of Keyser Marston?
A. Well —
MR. TEPPER: Wait a minute. That's a bit broad,
and certainly he's asking for the substance of a report
that we're claiming a privilege on. So if you want to
61
narrow that down a little bit —
BY MR. TUCHMAN:
Q. Was there a gap?
A. Yes, there wiD be a gap.
Q. Okay. Do you know how much that gap is?
MR. SHIPOW: Objection.
MR. TEPPER: Objection. Calls for privileged
information.
MR. TUCHMAN: Are you instructing him not to
answer?
MR. TEPPER: Yes.
MR. TUCHMAN: Okay.
BY MR. TUCHMAN:
Q. _ Has the report been completed?
A. No..
Q. What other types of things will be addressed in
the Keyser Marston report?
A. Really, just the financial terms.
Q. Are there any reports from any independent
consultants, whether they were retained by the City of
Huntington Beach or the Redevelopment Agency or not
relative to the status and condition to Burlington Coat
Factory?
A. When you say "status and condition," could you
elaborate?
JILIQ & ASSOCIATES CERTIFI
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1
A. Use the information to help understand, you know,
1
A. WeII, our overall discussions, the tenant mixture
2
the pros and coos of economic transactions we're involved
2
of the center, w" you know, we haven't been — we don't
3
in.
3
have a listing of all the proposed tenants for the center.
4
Q. Why would the value of the Burlington Coat
4
We've had discussions in the past very earlier on with
5
Factory leasehold and the fixtures help you in evaluating
5
Ezralow where they indicated they were working to
6
the transaction?
6
re -incorporate Burlington into the center. And so realty
7
A. Well, because Burlington is a major tenant and
7
at this point in time, we're waiting for the developer to
8
contributes to,the value of the center. It helps us to
8
really finalize their program for development, and then
9
determine things like assessed value, things along that
9
that will assist as in evaluating that and at what role
10
line, the factor in public revenues that we get from the
10
we'll play in that.
1 t
site. It could be from any number of reasons.
11
Q. Who said they wanted to re -incorporate Burfington
12
Q. Aren't you able to determine what the taxes are
12
to the center?
13
generated straight from the Burlington sales tax reports?
13
A. Early on, both — had discussions with both
14
A. We're not talking about sales tax. I'm talking
14
Doug Gray and Bryan Ezralow and some of their other
15
about property value and what their leasehold value is for
15
principals about that being an option.
16
the purposes of property tax increment, which would be one
16
Q. That's — when you say "earlier on," you mean in
17
illustrative —
17,
1999?
18
Q. Are the purposes of your appraisals to establish
18
A. I've been in 2000 as well. I don't recall
19
whether the City of Huntington Beach and the Redevelopment
19
specifically. Matter of fact, we fairly recently had that
20
Agency are looking to condemn the property?
20
discussion the time the specific plan was approved just
21
A. No, not necessarily.
21
discussing that. Depending on the ultimate size that
22
Q. Is that an option?
22
Burlington wanted, it could be accommodated within the
23
A. Well, certainly, an appraisal would be helpful if
23
specific plan.
24
we're ever led to go down that course.
24
Q. Who else was present during that conversation?
25
Q. Do you know if an election has been made?
25
A. I don't recall.
65 1 67
1 A. No.
1
Q. Has any money been deposited by Ezralow, any
2 Q. Do you know whether an election would be made as
2
Ezralow entity, or Huntington Center Associates with the
3 to Burlington Coat Factory being condemned?
3
City?
4 A. At the time that we ever make an offer and
4
A. I don't believe so.
5 negotiate in good faith with Burlington, if a decision is
5
Q. When do you anticipate that's going to happen?
6 made to do any acquisitions. And then after there is a
6
MR. TEPPER: Assuming something is going to
7 noticed public hearing and the City Council or
7
happen.
8 Redevelopment Agency Board conduct required hearings and
8
THE WITNESS: If we enter into an owner
9 hears Ave out of seven votes In favor of resolution on the
9
participation agreement, usually there's a good faith
10 assessment.
10
deposit that goes into effect on every project to cover our
11 Q. When you talk about the business transaction, you
11
costs if the transaction doesn't go to our head. But, no,
12 need the value of the Burlington Coat Factory leasehold,
12
there's been — there may or may not be any deposited funds
13 futures, bonus value, and anything related to the value of
13
needed. It depends on what the Agency would be incurring
14 Burlington because you need to know how much -- how much
14
in possible expenses, and that's not been determined yet.
15 Ezralow has to pay for the center?
15
BY MR. TUCHMAN:
16 A. Well, one,• I don't — personailj; I don't know
16
Q. Why has it not been determined yet, because the
17 everything that the appraiser is doing in that review.
17
OPA is not final?
18 taus would have a better sense of what's included in that
18
A. No, because we're still negotiating the
19 contract, so I can't speak to bow they're valuing the
19
transaction and we don't know the final composition of the
20 various elements for the appraisal.
20
center at this time.
21 Q. When you do your OPA, does the value of
21
Q. When you say the final transaction, that means
22 Burlington factor into it at all?
22
the OPA; right?
23 A. Maybe, maybe not.
23
A. Yes.
24 Q. Well, what determines whether it is a factor or
24
Q. When do you anticipate the OPA will be completed?
25 not?
25
A. Sometime early fall.
66 1 68
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2 A. I guess if you look at the clock based on the
2
3 seasons, it could be anywhere between, you know, first of
3
4 September to middle of October.
4
5 Q. Now, do you believe that the OPA will be
5
6 completed within the 60 days of June 19th?
6
7 A. No, I don't.
7
8 Q. Okay. Do you need to go back to the City Council
8
9 or Redevelopment Agency to request additional time?
9
10 A. Not necessarily, no.
10
11 Q. Is there an outside length of time as to how long
11
12 negotiations for an OPA exist?
12
13 A. Is there an outside —
13
14 Q. Yes.
14
15 A. No.
15
16 Q. Why is this taking longer?
16
17 A. Pardon?
17
18 Q. Why do you believe it will go past 60 days from
18
19 June 19th?
19
20 A. The renegotiation agreements are very
20
21 complicated. We have to have Keyser Marston prepare a
21
22 33433 report We have to actually notice — once we have
22
23 the documentation complete, we have to notice it for public
23
24 hearing at least 15 days prior to the public hearing date,
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25 and all reports have to be complete at that point in time..
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69
1
So once the statutory requirements are considered for the
1
2
owner participation agreement, complete all the
2
3
documentation that's necessary, it just takes time.
3
4
There's another project we did in downtown
4
5
recently where we originally were renegotiating for six
5
6
months and that took owner participation agreements. It's
6
7
not an unusual thing if it tapes more time than our best
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hope.
8
9
Q. I want you to take a look at Exhibit 4, which you
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have here, the face page. Do you recognize the face page
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of Exhibit 4?
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A. I recognize its format
12
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Q. What is it?
13
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A. It's one of— the staff and the City
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Administrator's once just prepares regular update of
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study sessions and specialty sessions of the City Council.
16
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Q. Is there anything on the face page of Exhibit 4
17
18
that pertains to Huntington Center?
18
19
A. Well, the study session on Edinger Corridor,
19
20
although, I don't actually believe — that was January of
20
21
'99. That generally surrounds the Huntington Center area
21
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and major projects update. That's an update done by the
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Planning Department on all major projects or processing
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throughout the City. They may have mentioned Huntington
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Center in passing from a planning perspective, but I don't
25
70
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
know, one, if these suggestions actually took place: or,
two, what was specifically discussed-
Q. Okay. Thank you. Who is Jim Rabe, R-a-b-e?
A. Jim Rabe, he's the principal of Keyser Marston.
Q. And I want you to take a took back at Exhibit 3.
Looking at 27, Huntington — 27, "10/13/99, Huntington
Center La Salle Macerich Comparison," what is that?
A. Without seeing it specifically, to the best of
my recollection, he was looking at the difference between
what La Salle was actually — before Macerich bought
Huntington Center, it was owned by La Salle, managed by
Macerich, and we were comparing the economics of a
transaction that was a proposal of La Salle versus the
transaction of Macerich. -
Q. What does the Economic Development Department and
the Redevelopment Agency of the City of Huntington Beach
want, money or looks?
A. Both.
MR. SHIPOW: Objection. Ambiguous.
THE WITNESS: If you're referring to my wife, I
would say beauty and personality. It didn't come with any
money. If you're talking about the Redevelopment
Department, our goal is to have high -quality development
that also generates positive public revenues.
71
BY MR. TUCHMAN:
Q. Has the Economic Development Department or
Redevelopment Agency caused any studies of the type of
traffic flow and retail of business that Burlington Coat
Factory generates on its own?
A. We have access to the sales tax information from
Burlington, but beyond that, not specifically.
Q. Have you at the Redevelopment Agency and at the
Economic Development Department looked at those figures?
A. Yes.
Q. And what has been your conclusion?
A. Been our conclusion? That Burlington is a
reasonable retailer.
Q. When you say "reasonable," do you believe that as
the Person Most Knowledgeable for the Redevelopment Agency
that Burlington Coat Factory, in and of itself, and the
type retailer it is, fits in with the scheme of your
redevelopment?
A. The scheme of our redevelopment?
Q. Yes.
MR. TEPPER: Is that ambiguous?
THE WITNESS: I mean, you know, if you can
clarify. You're talking specifically as part of the
Huntington Center?
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BY MR. TUCHMAN:
Q. Yes.
A. Well, really, they may or they may not. It
depends on the overall developer's goals and the co -tenancy
that might come out of that, so I really couldn't answer
for yon. Burlington has been in town for a while. We've
always called on them for ICSC, with their real estate
people to be in touch with them. They used to have a
building across the street. You know, Burlington's a
reasonable, fine retailer. Does it work in every center
across the country? Not necessarily. Is it going to work
here? I don't know yet. We're still waiting for the
developer to give as an indication of the kinds of tenants
that will be locating in the center and whether Burlington
or any other tenants fit In that mix.
Q. Is it up to the Agency to determine whether
Burlington Coat Factory is one of the tenants that should
be in the tenant mix at the new Huntington Center, which is
now called The Crossings?
A. Could you repeat the question?
MR. TUCHMAN: Please read the question back.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Well, not necessarily. Exclusively
our decision, no.
1 BY MR. TUCHMAN:
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73
Q. Whose decision is it?
A. Well, one, the property owner's decision. They
have an existing contractual relationship that they need
to work oat, and we, as a Redevelopment Agency, decide to
take a tenant out against the wishes of a property owner.
I'm trying to think of another scenario, having worked in a
lot of cities where I was in redevelopment, you know,
sometimes it does happen. You know, I think of the
redevelopment of Main. Place in Santa Ana where my
recollection is the City ultimately did decide to acquire
some property. But in that instance; it was a fee
ownership interest. So, again, it depends on the
circumstances, and that's not really been discussed or
fleshed out at this point in time.
Q. So as we sit here today — —
A. We have the technical authority to make the
decision, the legal authority to make the decision, but
that's not something we.usually do in a vacuum. They go
through the public hearing process, get community input,
also working with property owners and tenants in trying to
develop the best project overall. That is in our sole
discretion.
Q. As we sit here today on July 25th, 2000, is it
the -- is it up to the Agency to determine as of today
74
1 whether Burlington Coat Factory remains at Huntington
2 Center, which is supposed to be called now The Crossings?
3 MR. SHIPOW: Objection. Asked and answered.
4 Argumentative.
5 THE WITNESS: It may or may not. The decision
6 hasn't been made yet.
7 BY MR. TUCHMAN:
8 Q. Has that decision as to whether Burlington Coat
9 Factory remains or does not remain in the tenant mix been
10 taken away from the owner/developer, Ezralow/Huntington
11 Center Associates?
12 A. Not yet, but it may.
13 Q. Under what circumstances would it be taken?
14 A. I wouldn't speculate as to that. It would
15 ultimately require a decision by the Agency Board.
16 Q. Is there anything on calendar relative to taking
17 away that decision from Ezralow or Huntington Center
18 Associates?
19 A. Not to the best of my knowledge.
20 Q. Let's go back to No. 26, Huntington Center
21 Alternative Project Comparison. We're at Exhibit 3. What
22 is that?
23 A. Without — my recollection is that was comparing
24 the developer's request to financial assistance and their
25 economics to the other alternatives we have as far as how
75
1 to approach that.
2 Q. When you say ."alternative project comparison,"
3 does that mean other ideas?
4 A. No, it's just we didn't agree with the
5 developer's assessment of the economics, so our alternative
6 was different than that. Anticipating your question, it
7 wasn't specifically based on whether a tenant was in or a
8 tenant was not in.
9 Q. Okay. The next item, "Estimated Development
10 Costs," that's prepared by Ezralow?
11 A. Uh-huh:
12 Q. What does that mean?
13 A. Then they just took X number of square footage,
14 looked up what the cost of the construction would be and
15 what the revenues would be, and that's how we looked at
16 whether or not there would be a gap.
17 Q. Were you ever in attendance at a meeting with
18 attorneys from Kane, Balhner and attorneys from Whitman --
19 Whitman, Breed -- whatever.
20 MR. TUCHMAN: I'm sorry. What are they called?
21 MR. SHIPOW: Whitman, Breed, Abbott & Morgan.
22 THE WITNESS: Ever?
23 BY MR. TUCHMAN:
24 Q. Yes.
25 A.. Yes.
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1 Q. How many times?
1
2 A. To the best of my recollection, that was maybe
2
3 six times
3
4 Q. Did you ever have a meeting at Whitman's office?
4
5 A. Not to the best of my recollection. I don't know
5
6 where their office 1%
6
7 Q. Did you ever have a meeting at Kane's office?
7
8 A. I was here yesterday for a deposition that didn't
8
9 take place. I was up here yesterday.
9
10 MR. TEPPER: Thank you.
10
11 THE WITNESS: Sorry. I don't mean to rip scabs
11
12 off.
12
13 BY MR. TUCHMAN:
13
14 Q. Now, this "Property Tax Revenue Projections," I'm
14
15 looking at Item 24, what is that?
15
16 A. That's just projecting out property tax revenue,
16
17 I imagine, for future for Huntington Center, assuming they
17
18 spent X amount of dollars out of the gate, what would
18
19 happen with escalating value over time.
19
20 Q. Who is Mt. Holly Partners? It's on 24. You're
20
21 right.
21
22 A. You know, I don't recall.
22
23 Q. Who hired Mt. Holly, H-o-I-1-y, Partners?
23
24 A. I don't recall.
24
25 Q. Let's take a look at the top entry on page 2 of
25
77
1 Exhibit 3, "10/25/99: Memo, Evaluation of Revised Ezralow I 1
2
Submittal." What is that?
2
3
A. I think that was their response to Jim Cushman of
3
4
some of their costs and revenue assumptions
4
5
Q. Is there any financial information contained in
5
6
"Memo: Evaluation of Revised Ezralow Submittal"?
6
7
A. I believe so, yes
7
8
Q. Let's move to the next page. Okay. "10/26/99,
8
9
Estimated Development Costs, Ezralow," what is that?
9
10
A. Again, I think that's their developer Pro Forma
10
11
that outlines their estimated development costs, as it
11
12
says
12
13
Q. And then No. 21, "Request for Closed Session."
13
14
You requested a closed session on 11/08/99?
14
15
A. That would either be the date of the memo
15
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requesting the closed session or -- probably, I don't
16
17
recall. That may be a Monday, but --
17
18
Q. November 8 is a.Monday. Okay. And do you recall
18
19
why you requested this closed session?
19
20
A. At that point in time we were still having
20
21
discussions about whether or not the Agency wished to
21
22
pursue alternatives other than Ezralow's purchase of the
22
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property.
23
24
MR. TUCHMAN: Read that back for me.
24
25
(Whereupon the previous answer was read"
25
78
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
back by the court reporter as requested.)
BY MR. TUCHMAN: .
Q. What does that mean?
A. At one point in time we were contemplating doing
our own request for developer proposals and sort of
discouraging Macerich from selling the center. But we
would go out, end a developer who would eventually acquire
the center if we weren't satisfied with what came out of
Macerich.
Q. But by this time, you at the Redevelopment Agency
and the Economic Development Department of
Huntington Beach, you were aware that escrow was open?
A. Well, yes, but that doesn't preclude our option
prom doing something different.
Q. Okay. I'm going to ask the reporter to mark for
identification as — by the way, the closed session did
occur, correct?
A. I don't recall. I'd have to go back and check.
They don't always occur, even though we ask for them.
Q. Sometimes a request is denied?
A. No, sometimes we're not ready to go at that
particular meeting.
Q. Okay. Did Ezralow ever say to you — Ezralow or
Huntington Center Associates, "We're not going to buy this "
property unless you commit to certain promises to us"?
79
A. No, not to the best of my recollection.
Q. Were you aware when escrow closed?
A. Yes
Q. When did it close?
A. I beeeve in December of '99 or the end of
November.
Q. Are you aware that there was a closed session the
night before escrow closed?
A. There may have been.
Q. Do you know why the timing of that was like that?
A. Probably just coincidental.
Q. Just coincidental, you say?
A. Uh-huh.
Q. Is that a "yes"?
A. Yes
Q. Okay. Let's take a look at Exhibit 6.
(Plaintiffs Exhibit 6 was marked
for identification by the court
reporter and.is attached hereto.)
BY MR. TUCHMAN:
Q. It's page 2 of Council Agency Minutes, 11/15/99.
I want you to take a look, please, at Redevelopment Agency,
closed session. It says, "Redevelopment Agency pursuant to
Government Code Section 54956.8 to give instructions to the
Agency's negotiators, Melanie Fallon, David Biggs,
80 _t
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i Ray Silver, Jim Rabe, Murray Kane, and regarding
2 negotiations Bryan Ezralow and Doug Gray concerning the
3 purchase/sale/or lease of the property located at
4 7777 Edinger Avenue. Subject: Negotiation for terms of a
5 proposed Purchase, Sale, or lease of property at
6 7777 Edinger."
7 Do you see that entry?
8 A. Yes.
9 Q. Okay. Did that meeting occur?
10 A. I don't recall.
11 Q. Okay. Were the persons present at that meeting,
12 do you know?
13 A. I believe --
14 MR. SHIPOW: Objection. Calls for speculations.
15 He said he doesn't know if the meeting took place with --
16 THE WITNESS: Well, actually, now I'm trying to
17 recall. It =- 11115, I imagine it did, and the -- I don't
18 recall the specific topics. I think at that point in time
19 we were looking at their opposed economic as a
20 transaction -- economics of the transaction. And, again,
21 once we realized they were going to buy the center and
22 be -- it seemed that they had something that may make sense
23 economically, when I think the end results of that was
24 putting on hold any of those discussions until we could
25 consider alternative proposals from other owner
81
1 participants. But I think at this point in time, this
2 wasn't -- this didn't have anything to do with the timing
3 of their escrow closing, so it was just a few overall
4 series of meetings where we review with the Agency Board
5 the potential economics of the transaction with Ezralow.
6 And I think it was just a series of in one of those — one
7 of the meetings in that series.
8 BY MR. TUCHMAN:
9 Q. Has an estimate been made, dollar amount, as to
10 what it would cost to condemn Burlington's leasehold?
l l A. Not that I'm aware oL
12 Q. Has anybody from Ezralow told you — Ezralow or
13 Huntington Associates that they want to get rid of
14 Burlington Coat Factory?
15 A. No, they indicated they'd like to negotiate with
16 Burlington Coat Factory. Exactly -whit that means, I don't
17 know. But we've been encouraging them to, as the developer
18 that was selected to do the comprehensive development of
19 the center, to work with existing tenants and property
20 owners to develop the best property plan they can. And
21 once they've got that in place, we'll discuss what needs to
22 happen after that.
23 So my most recent discussion was that their
24 endeavors to contact the real estate people with Burlington
25 before didn't want to work through Burlington's attorney.
82
I Q. Have you — except for condemnation — you, as
2 the Person Most Knowledgeable for the Redevelopment Agency,
3 besides condemnation, what other avenues could you use to
4 determine that Burlington Coat Factory should not be in the
5 tenant mix at the Huntington Center, which is now referred
6 to as The Crossings?
7 A. I'm uncertain as to your question.
8 Q. What other powers, what other decisions have been
9 contemplated, discussed, or could be used for the
10 Redevelopment Agency to say, "Burlington you're not going
11 to be a tenant at the shopping center"?
12 MR. SHIPOW: Objection. Compound. May call for
13 a legal conclusion.
14 THE WITNESS: Well, non -specifically -- I mean,
15 one thing is helping them find another site in the area or
16 in the trade area. I mean, we offer to do that with other
17 existing tenants. You know, it might be a request of
18 financial assistance. I don't know. We've really not had
19 those discussions, but based on my past experience, those
20 are the kinds of things that do occur in situations such as
21 this.
22 BY MR. TUCHMAN:
23 Q. You haven't — the Economic Development
24 Department nor the Redevelopment Agency have approached
25 Burlington though?
83
1 A. No, not specifically. The owner participation
2 process was awaiting to do so, and really since then
3 Burlington's taken a litigative posture, so that's really
4 precluded.the ability to have those discussions.
5 Q. Are you aware that Burlington Coat Factory
6 discussed a meeting with the City through your offices?
7 MR. TEPPER: Objection as to time. When is that?
8 MR. TUCHMAN: March the loth.
9 THE WITNESS: I don't recall that, but it would
10 have been on the advice of counsel given pending litigation
11 that we may or may not have had the meeting.
12 BY MR. TUCHMAN:
13 Q. Okay. Let's assume no litigation had been filed
14 when a meeting was requested. Let's assume that for a
15 moment. Was that also on advice of counsel?
16 MR. SHIPOW: Objection. Calls for speculation.
17 THE WITNESS: I don't know. Matter of fact,
18 we've had meetings recently with Ward's.
19 BY MR. TUCHMAN:
20 Q. Well, Ion talking about Burlington. Is there any
21 reason that you know of that you didn't want to have a
22 meeting earlier this year in the year 2000, you didn't want
23 to have a meeting with Burlington Coat Factory?
24 A. Not that I can recall
25 Q. So if I told you there was a meeting that was
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1 requested in March of 2000, you wanted to attend?
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2 MR. SHIPOW: Objection. Calls for speculation.
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3 Ambiguous.
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4 THE WETNESS: You'd have to describe the
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5 particular circumstances under which the request was made
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6 and, you know, I don't recall if it was even specifically
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7 made and who it was made to.
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8 BY MR. TUCHMAN:
8
9 Q. Mr. Duran never discussed that with you?
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10 A. I don't recall.
10
1 I Q. What does this mean, "subject" -- I'm looking at
11
12 Exhibit 6. "Subject, negotiation for terms proposed
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13 purchase, sale, or lease of property at 7777 Edinger"?
13
14 A. That's the -- always the site we use we're
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15 negotiating in owner participation agreement and/or
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16 decision of development agreement because no matter what
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17 form it takes, we altimately acquire an interest in real
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18 estate, even in the minimum covenants regarding the
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19 property of its use.
19
20 Q. What is this 40050 under, if you know?
20
21 A. That's the City Court's filing system.
21
22 Q. Has anyone ever discussed with you the fact that
22
23 Burlington Coat Factory has additional rights beyond its
23
24 lease at the shopping center, property rights?
24
25 A. When you say "additional rights," you'd have to
25
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1
describe what you mean by that.
1
2
Q. Recorded interests in the property.
2
3
A. Not that I recall.
3
4
Q. Okay. Now --
4
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A. I don't recall -- go ahead.
5
6
Q. That's fine. It says, "Negotiation for terms of
6
7
proposed purchase, sale, or lease." By whom, the City, the
7
8
Development Agency, or a private party?
8
9
A. By the Redevelopment Agency.
9
10
Q. All right. And was a decision ever made to buy
10
11
the Redevelopment Agency to purchase, sale, or lease the
11
12
property?
12
13
MR. SHIPOW: Objection. Mischaracterizes the
13
14
testimony.
14
15
THE WETNESS: Well, no, actually, I think you're
15
16
missing the point and this may be the point where I think
16
17
you're as confused by that.
17
18
That does not mean we were discussing -- we use
18
19
that terminology whenever we have something on the agenda
19
20
regarding Redevelopment Agency in regard to owner
20
21
participation developments or participation because it
21
22
would be -- it's really the umbrella under which we do our
22
23
negotiations because we do, at minimum, require covenants
23
24-
on an interest in real estate even if we do no other actual
24
25
direct acquisition of any other property interests. So
25
86
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
you're mischaracterizing reading into what this closed
session site might be.
BY MR. TUCHMAN:
Q. Who is Melanie Fallon?
A. She was the Assistant City Administrator.
Q. She's no longer with the --
A. No.
Q. Okay. Now, where it says, not in capital letters
for the first word, "Concerning the purchase/sale/or lease
of the property," what's the difference between that
reference and the "purchase, sale, or lease" in the bottom
sentence? Why is it stated twice?
A. I couldn't tell you. That's the way the City
Clerk puts it on the agenda.
Q. What was the resolution of this closed session?
A. I don't recall there being a resolution.
Q. Ezralow went and bought it; right?
A. They were already scheduled to buy it. I don't
think the decision was made on the basis of this closed
session.
Q. Has the City of Huntington Beach and/or any of
its departments and the Redevelopment Agency received any
fees of any kind from Ezralow or Huntington Center
Associates?
MR. TEPPER: Asked and answered. But go ahead.
87
THE WITNESS: The Redevelopment Agency has not.
The Planning staff ultimately probably have collected some
kind of fees, and they can respond more specifically to
that.
BY MR. TUCHMAN:
Q. Okay. Now, the decision to become the applicant,
when was that made?
A. For which party?
Q. For which party?
A. Which applicant?
MR. TEPPER: Hold it. This is very confusing.
Do you have a date, time, and place you're talking about,
sir?
MR. TUCHMAN: Certainly.
BY MR. TUCHMAN:
Q. There's an applicant to redevelop the property;
is that right?
MR. SHIPOW: Ambiguous. Mischaracterizes the
testimony. We're talking about co -applicants?
MR. TEPPER: Let's start all over again.
THE WITNESS: Okay.
BY MR. TUCHMAN:
Q. Do you know what an applicant is?
A. Yes, I believe so.
Q. What's an applicant?
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A. It's someone who applies for something.
Q. Okay. Now, Ezralow applied for something, didn't
it?
MR. TEPPER: Objection. Legal relevance.
THE WITNESS: I'm sure Ezralow has probably
applied for something during the course of their career as
a company.
BY MR. TUCHMAN:
Q. Okay. What have they applied for relative to the
Huntington Center?
MR. SHIPOW:. I'm going to object as ambiguous as
to the use of the phrase "Ezralow." There are various
entities that have Ezralow in the name.
MR. TEPPER: And I'm unaware, as a legal
objection, of the relevance of any application in the
redevelopment process.
THE WITNESS: They made no application in the
redevelopment process.
MR. TEPPER: I'm just talking about as a legal
matter. I'm just trying to move on to what actually
happened here, what could happen. As a legal matter, there
is no such word in the redevelopment process.
THE WITNESS: True. True.
MR. TEPPER: Move on. I don't know where we're
headed. I don't mean to be obtuse, but if you're talking
89
about when they applied to be an owner participant or when
RFPs were sent out, or things like that, that's what you
may be asking.
BY MR. TUCHMAN:
Q. In terms of the applicant to develop the
property, that is something that Mr. Zelefsky would be
better suited to respond to?
A. You're talking about an application for?
Q. To establish a new specific plan for
Huntington Beach Mall.
A. Okay. The application for the specific plan, he
could do part of that I can answer part of that.
Q. Who is the applicant to establish a new specific
plan?
MR. TEPPER: Are you speaking —
MR. SHIPOW: Objection. ?ambiguous to time.
- MR. TEPPER: If you're talking about a specific
plan, show the witness. Or if you're talking about a
generic matter, you can answer.
Do you have a question?
MR. TUCHMAN: Thank you, Mr. Tepper.
BY MR. TUCHMAN:
Q. Who is the applicant?
MR. TEPPER: Objection.
THE WITNESS: For what?
90
1 MR. TEPPER: That's ambiguous.
2 BY MR. TUCHMAN:
3 Q. For the specific plan to develop --
4 A. The specific plan considered when?
5 Q. Right now, as we sit here today.
6 A. The specific plan that was recently approved?
7 Q. Yes.
8 A. I'm sorry. The applicant was the City and the
9 Redevelopment Agency, ultimately.
10 Q. Was there some other applicant before the City
11 and the Redevelopment Agency?
12 A. I believe so.
13 Q. Who was that?
14 A. I believe it was one of the Ezralow entities
15 together with the Redevelopment Agency.
16 Q. Why was that changed?
17 A. Well, I don't think it was changed. It was just
18 a clarification. The City typically is -- we process
19 specific plans all the time. The City is usually --
20 actually, the City doesn't usually file an application if
21 it's processing its own specific plan, but the City has a
22 downtown specific plan•or the City was an applicant with
23 multiple property owners.
24 When Macerich filed their application for a
25 specific plan, the Redevelopment Agency together with
91
1 Macerich and the City was the co -applicant. So I think
2 this is, you know, a real -- the City is typically the
3 applicant for a specific plan.
4 Now, sometimes the City, if there is also a
5 private proponent for a specific plan, in order to have
6 that private proponent pay the cost of processing the
7 specific plan, includes him on the application.
8 Q. Okay. Who made the decision to authorize the
9 City and the Redevelopment Agency to become the applicant
10 for the specific plan that has now been approved?
11 MR. SHIPOW: Objection. Mischaracterizes the
12 testimony. Argumentative.
13 THE WITNESS: I don'tthink, quote, unquote,
14 there was a "decision." The City usually is the applicant
15 for the specific plan.
16 BY MR. TUCHMAN:
17 Q. Well, you understand that at some point the
18 applicant, Ezralow or one of its entities, was removed as
19 the applicant; isn't that right?
20 A. No, I don't have that same understanding that you
21 do, no.
22 'Q. Is Ezralow still an applicant on the specific
23 plan?
24 A. I don't know offhand.
25 Q. If I told you they're not, would you be surprised?
23 (Pages 89 to 92)
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A. No, not necessarily.
1
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Q. Okay. Why is Ezralow --
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3
A. I don't think it's material, but that's okay.
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4
Q. Okay.
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MR. TEPPER: Let him determine what's material.
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THE WITNESS: Okay. Obviously, he determined it
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was material. That was the indication in his earlier
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question.
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BY MR. TUCHMAN:
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10
Q. Are you familiar with the decision by Ray Silver
10
I 1
as the City Administrator and the Director of the
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12
Economic -- Director of the Redevelopment Agency to direct
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13
Mr. Zelefsky to change the applicant on the application to
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14
establish a new Specific Plan No. 13?
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15
A. I don't think he directed him to change it. Yes,
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16
I'm familiar with it. I think all he did was send a memo
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17
clarifying the status of the Agency and the City as an
17
18
applicant.
18
19
Q. Was there any discussion regarding that memo?
19
20
A. Yes, there was some level of discussion regarding
20
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the memo.
21
22
Q. Did you participate in that discussion?
22
23
A. Yes, some of the discussion.
23
24
Q. Who was present?
24
25
A. I don't recall.
25
93
1 Q. What was stated in that discussion?
1
2 MR. TEPPER: Hold it. There may be an
2
3 attorney/client privilege I wish to interject at this
3
4 point, if there were any attorneys present.
4
5 THE WITNESS: I don't remember because part of it
5
6 would have been some discussions with Murray Kane of Kane,'
6
7 Ballmer. Part of it would have been — I talked with Ray
7
8 about it briefly in passing. Part of the discussion was
8
9 with Howard Zelefsky, the Planning Director, but this was
9
10 sort of a series of passing conversations during this point
10
11 in time.
11
12 BY MR. TUCUMAN:
12
13 Q. You said "Ray." Ray who?
13
14 A. Ray Silver.
14
15 Q. And Howard Zelefsky. Whardid Ray say about
15
16 this?"
16
17 A. I don't recall Ray saying very mach about It
17
18 because, again, in our mind, it was just clarifying that
18
19 the City — City is typically considered an applicant for
19
20 specific plans, and the Redevelopment Agency, in fact, had
20
21 been one of the original applicants for the specific plan
21
22 when Macerich filed.
22
23 Q. Now, Mr. Biggs, you were aware at the time this
23
2+ decision was made to change the applicant —
24
25 A. There was no change to the application, so I
25
94
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
don't characterize it like that.
MR. TEPPER: Hold on. Let him finish, please.
THE WITNESS: Okay. Thanks.
BY MR. TUCHMAN:
Q. You were aware at the time the applicant was
changed to the City of Huntington Beach and the
Redevelopment Agency that there was a pending application
for a temporary restraining order brought by Burlington
against Ezralow, were you not?
A. Yes, I was.
MR. SHIPOW: Objection. Mischaracterizes the
testimony that the applicant was changed.
THE WITNESS: Well, which is true, but go ahead.
BY MR. TUCUMAN:
Q. And am I correct that the fact that notice was
given of the ex-parte application for a temporary
restraining order on June 1 is what triggered the change in
the applicant to the City of Huntington Beach and the
Redevelopment Agency from Ezralow or one of the Ezralow
entities?
MR. SHIPOW: Objection. Argumentative, and also
mischaracterizes the testimony that there was any change of
the applicant. I'm sorry. I need to get my objection in.
THE WITNESS: That's fine. No, what iftiggered
was a memo clarifying that in order not to delay the City a
95
best interest in seeing the specific plan considered and
approved.
BY MR. TUCHMAN:
Q. Did Ezralow or any of its related entities
withdraw its name as the applicant for the establishment of
the new Specific Plan No. 13 for the Huntington Beach Mall,
The Crossings?
A. I don't have specific knowledge of that.
Q. Is that necessary?
A. I don't know. That would be a question to ask
the Planning Director.
Q. Okay. We will. Now, in the discussions that you
had regarding the change of.the applicant, did you discuss
that on Friday, June 2, with Mr. Kane?
MR. TEPPER: Objection.
MR. SHIPOW: Objection. Mischaracterizes the
testimony that there was a change of applicant.
THE WITNESS: [ don'trecall specific dates.
BY MR. TUCHMAN:
Q. How many conversations did you have with
Mr. Murray Kane and Mr. -- or anybody from Mr. Kane's
office prior to the application being changed?
MR. SHIPOW: Same objections.
THE WITNESS: I don'trecall.
96 - i
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BY MR TUCIIMAN:
Q. Was it more than one?
A. Not necessarily, no. I don't recall.
Q. Was the memo that was prepared by Silver
back -dated?
A. I don't know.
Q. Would that be surprising to you if it was
back -dated?
A. I don't believe it would be back -dated, but I
have no knowledge whether it was or not.
Q. Did anybody ever tell you it was back -dated?
A. No.
Q. Did you receive a copy of the memo?
A. Yes.
MR. TUCBMAN: All right. I'm going to ask the
reporter to mark for identification as Exhibit 7, this is a
copy of the memo -- I have to make an extra copy of this.
(Plaintiffs Exhibit 7 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. All right. Do you recognize Exhibit 7?
A. Yes.
Q. All right. What is Exhibit 7?
A. It's a memo to the Planning Director kom
97
Ray Silver, the City.Administrator and the Executive
Director of the Redevelopment Agency.
Q. When is the first time you saw this memo?
A. I don't recall.
Q. You received a CC of it; right?
A. Yes.
Q. Okay. Do you see this fax legend at the top,
City of Huntington Beach, Community Development Department?
A. Uh-huh.
Q "Yes"?
A. Yes.
Q. Okay. And that's your fax number,
(714)374-1540?
A. No.
Q. Whose fax number is that?
A. That's the Planning Department's fax number.
Q And do you know why this was faxed on
June 7th at 1:41"p m.?
A. No idea:
20 Q. Did you type this memo up?
21 A. No.
22 Q. Who typed this memo up?
23 A. I don't know.
24 Q. Do you know what department this came from?
25 A. No, I don't.
98
1 Q. Did you ever discuss this memo, Exhibit 7,
2 before it was prepared?
3 A. Yes, I had some discussions about it.
4 Q. Okay. And did you discuss the fact that this
5 memo, Exhibit 7, was created to defeat the temporary
6 restraining order pending against Ezralow and Huntington
7 Center Associates?
8 MR. SHIPOW: Objection. Argumentative.
9 THE WITNESS: We discussed the fact that this
10 memo would help ensure the City could consider its specific
11 plan in a timely manner.
12 MR. TUCHMAN: Read the question back.
13 (Whereupon the previous question was read
14 back by the court reporter as requested.)
15 THE WITNESS: I answered it.
16 BY MR. TUCHMAN:
17 Q. Okay. I want an answer to that question.
18 A. I believe I answered your question.
19 Q. No, you did not. It's a "yes" or a "no," and 1
20 want an answer to it.
21 MR. SHIPOW: Objection. He doesn't have to
22 answer it "yes" or "no." He can answer to the best of his
23 ability, which I think he's done.
24 MR. TUCHMAN: Read the question bade
25 (Whereupon the previous question was read
1 back by the court reporter as requested.)
2 MR. SHIPOW: Asked and answered.
3 THE WITNESS: I believe I answered your question.
4 BY MR. TUCHMAN:
5 Q. You're refusing to answer that question "yes" or
6 "no"?
7 A. I believe I answered the question.
8 Q. Were you aware that this memo —
9 MR. TUCHMAN: And mark that question because
10 well be back to it.
11 BY MR. TUCHMAN:
12 Q. Were you aware that this memo, Exhibit 7, would
13 be used in the pending litigation, the temporary
14 restraining order litigation, between Ezralow and its
15 related entities and Burlington?
16 A. Yea
17 Q. Were you aware that this memo was created to be
18 used as an exhibit in the litigation pending between
19 Ezralow, the Ezralow entities, and Burlington Coat Factory?
20 MR. SHIPOW: Objection. Argumentative.
21 MR. TEPPER: Assumes facts not in evidence.
22 THE WITNESS: No, I don't recall that
23 specifically.
24 BY MR. TUCHMAN:
25 Q. It says on the first sentence here, "As required
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Specific Plan is necessary to establish zoning and
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development standards for the 63-acre Huntington Center
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property."
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Was this something new as of June 5th, 2000?
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A. No, that was included in -- the general planning
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was adopted, I believe, in '95 or '%.
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Q. '96. It's old news; right?
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A. Yes.
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Q. Next sentence, "The Specific Plan allows the City
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to establish unique design and architectural guidelines to
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govern future development of the site."
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Again, that was nothing new; correct?
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A. True. True.
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Q. You have a general plan for these five areas and
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then you have a specific plan that you can modify the
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general plan to a certain extent; isn'tthat right?
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A. Would you repeat the question?
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Q. A specific plan is something that you have to
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design or develop one of the five parcels that is in the
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redevelopment zone; isn't that right?
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A. No, not true.
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Q. What's a specific plan?
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A. A specific plan is a more detailed plan to hold a
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general zoning that can be applied to a very large
25
101
. DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Southern California Edison Company retains ownership
beneath the high tension wires on the north side of the
property."
True statement; right?
A. Yes.
Q. "Although an application for a zone change was
submitted by Ezralow on March 30, 2000" -- let's stop right
there. Exhibit 8 --
A. Actually, I have to take a break real quick. I
have to see it I have to do a jury duty, so --
Q. Do you want to take a break?
A. Yeah, only because it I do have to be there at
12:30, I'm going to have to go, but they haven't called me
yet, so —
(A brief recess was taken.)
MR. TUCHMAN: Back on the record.
BY MR. TUCHMAN:
Q. We were looking at Exhibit 7, and it says,
"Although an application" --
MR. SHIPOW: Let him make his notes.
THE WITNESS: Sorry, I just want to make sure I
don't get called into court by a bailiff saying I should
have showed up when I didn't have to.
BY MR. TUCHMAN:
Q. Okay. Are you ready?
103
1
geographic area. For example, we have a downtown specific
1
A. Sure.
2
plan that covers thousands of properties, or actually
2
Q. Okay. It says on Exhibit 7, "Although an
3
higher development standards and zoning regulations. We
3
application for a zone change was submitted by the Ezralow
4
have a specific plan that covers the McDonald's Center
4
Company on March 30th" — I want to show you Exhibit 8 and
5
Business Park as an industrial park, so -- and that was
5
make sure that this is the application that's being
6
done on one property, large property, 63 or so acres owned
6
referred to. And for the record, Exhibit 8 was Item 1.
7
by a single property owner. We have a specific plan that
7
(Plaintiffs Exhibit 8 was marked
8
covers the Holly Seaciiff area that — it has 3,000
8
for identification by the court
9
residential units. It's a higher level of zoning with more
9
reporter and is attached hereto.)
10
specificity.
10
MR. TUCHMAN: By the way, Mr. Tepper, when you
I
Q. "Adoption of the Specific Plan requires the
11
put Item 1 and you put the different items together, this
12
processing of a zoning map amendment and zoning text
12
was just the designation for the production; am I right?
13
amendment."
13
THE WITNESS: No, I don't think so.
14
That had not been done as of June 5; is that
14
BY MR. TUCHMAN:
15
correct?
15
Q. Okay. Anyway, it was Item 1 of the production.
16
A.. That's what the specific plan does.
16
A. This is the way it comes out of the file.
17
Q. Okay. That was on the agenda; correct?
17
Q. Okay. That's fine.
18
A. That was approved recently by the Council four
18
A. You made a reference to a planting exhibit,
19
weeks ago — three weeks ago.
19
Item 1.
20
Q. Okay. So as of June 5, it hadn't been approved
20
Q. Good. 'Is this a complete copy of the application
21
by the Council?
21
which was submitted by Huntington Center Associates and
22
A. True..
22
Ezralow on or about March the 30th, 2000?
23
Q. Let's move to the next paragraph. "The Ezralow
23
A. I don't know. This is the first time I recall
24-"
Company is the property owner of the majority of the site,
24
seeing it.
25
while Montgomery Ward's owns approximately 13 acres, and
25
Q. Okay. So you've never seen it before?
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A. I don't recall.
Q. Okay. That's fine. Incidentally, why did your
offices never provide Exhibit 8 to our offices upon our
request?
A. Because we don't have it. This is a Planning
Department document. It couldn't have been in our tiles.
Q. So Exhibit 8 didn't come with your files?
A. I don't believe so, but I don't recall
specifically.
Q. Let's go back to Exhibit 7 then. "Although an
application for a zone change was submitted by the Ezralow
Company on March 30th, 2000, it is more appropriate for the
City and the Redevelopment Agency to be designated as
actual applicants for the proposal because the Specific
Plan is a City -initiated project."
Can you explain why it's more appropriate?
A. Again, it was just clarifying that's the way we
usually approach specific plans.
Q. And who made the decision that it was more
appropriate?
A. Well, I'm sorry. When you say, "Who made the
decision it was more appropriate" --
Q. Yes.
A. -- well, that's historically the way specific
plans have been done in Huntington Beach.
105
Q. Okay. There's a person. Is it Ray Silver, as
far as you know, that made the decision it's more
appropriate for the City and the Redevelopment Agency to be
designated as the actual applicants?
MR. SHIPOW: Objection. Mischaracterizes the
testimony. Asked and answered.
THE WITNESS: I think that question would be
better answered by Howard Zelefsky. He's the Planning
Director. He would have more experience to explain that.
BY MR. TUCHMAN:
Q. Then I will. Now, when you were discussing
preparation of this memo with Mr. Kane, did you have any
conversations with Mr. Shipow?
A. I had never met or my office met Mr. Shipow till
I met him this morning..
Q. Did you have any discussions -with Hughes prior to
Exhibit 7 being generated?
A. I don't recall specifically.
Q. When you were talking to Mr. Kane or Mr. Tepper,
you knew they were talking with Whitman, Random; right?
MR. SHIPOW: It's not Whitman, Random. It's
Whitman, Breed. It calls for speculation and it may call
for attorney/client privilege.
MR. TEPPER: Yeah, I think that may call for
attomey/client privilege.
106
1 THE WITNESS: And I don't recall specifically.
2 He could have been speaking also with people at Ezralow and
3 the City Attorney's office. I don't recall specifically
4 who he had been speaking with.
5 BY MR. TUCHMAN:
6 Q. What did you know about the litigation that had
7 been going on as of June 1 and 2, Thursday and Friday,
8 2000?
9 A. Basically, I knew there was an endeavor to stop
10 the action that would cause the City to not be able to
11 consider the specific plan, and that was — the City has a
12 keen interest In seeing the specific plan move forward, so
13 ultimately the center can be developed with whatever
14 tenants or users ultimately, and It being incorporated into
15 the center, and that we wanted to ensure that we could
16 proceed with the specific plan because that was in the
17 City's beat interest;
18 Q. You didn't want the TRO to come into effect?
19 MR. SHIPOW: Objection. Argumentative.
20 MR. TEPPER: That's the nature of this --
21 THE WITNESS: And that was not our decision to
22 make. That was ultimately a Court discussion to make on
23 the facts. Just because the one attorney for the one side
24 doesnI seem to know planning or public law doesn't mean:.
25 that we're to be held responsible for the errors thatmere
107
1 made that required whether the restraining order wasn't
2 granted.
3 BY MR. TUCHMAN:
4 Q. I appreciate your comments, Mr. Biggs. I really
5 do, but let's answer the question.
6 MR. TEPPER: Is there a question pending?
7 MR. TUCHMAN: Yeah.
8 BY MR. TUCHMAN:
9 Q. You knew —
10 MR. TEPPER: What is the pending question?
11 (Whereupon the previous question was read .
12 back by the court reporter as requested.)
13 MR. SHIPOW: Objection. Same objections that I
14 made before.
15 THE WITNESS: Certainly the City wanted to
16 proceed with its consideration of the specific plan.
17 BY MR. TUCHMAN:
18 Q. And you, at the City, knew that if the TRO was
19 granted, then that would come to a halt?
20 A. Maybe; maybe not,
21 Q. Well, you were concerned it would come to a halt?
22 A. It might delay it for a period of time, yes.
23 Q. And the City didn't want it delayed?
24 A. Certainly.
25 Q. Now, next sentence, "Therefore, this memo and my
108
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signature, as City Administrator and Executive Director of
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the Redevelopment Agency of the City of Huntington Beach,
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serve as application authorization for the processing of
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Zoning Map Amendment No. 00-01, Zoning Text Amendment
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No. 00-02 (Specific Plan No. 13}*
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Is this the document whereby the City of
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Huntington Beach and the Redevelopment Agency became the
7
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applicant?
8
9
A. No. Again, I think we always viewed the City and
9
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Redevelopment Agency as the applicant.
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Q. Are you the Person Most Knowledgeable of when
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they became the applicant, or would that be Zelefsky or
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Silver?
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A. Zelefsky would be most knowledgeable as to
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whether the City would be used as the applicant. I would
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be the most knowledgeable as to the Redevelopment Agency,
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and the Redevelopment Agency was a co -applicant when
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Macerich submitted their specific plan and ongoing
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processing of that.
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Q. Is it your understanding — I think they're
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called Zs and Os. Do you know what they are?
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A. Zs and Os?
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Q. Zoning and Ordinances.
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A. I don't think we typically refer to it as Zs and
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Os, but that's okay.
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Q. Was it discussed that this should be put on an
agenda?
A. Not that I recall.
Q. Okay. Well, do you have an opinion on that today?
A. That's not the course — normal coarse of
business for us, no.
Q. Well, you know about a month later on June --
July 5, the City Council voted on this issue retroactively;
right?
A. Yes, we did. We had that application action,
yes.
Q. Was that necessary?
A. Well, we're in a litigious euvironmeuL
Sometimes it doesn't hurt to doable -cross your T's and
doable -dot your I's. That's the only reason we did that.
Q. And who told you that?
A. Pardon?
Q. Who told you that?
A. Who told me what?
MR. TEPPER: I think that would be within the
province of attorney/client relationship.
THE WITNESS: Beyond that, just in my mind, no
one had to tell me that. I don't recall anyone
specifically telling me that. That just makes common sense
to look out for the City's best interest in everything you
1 Q. Are you familiar with requirements in the Zs and
1
do.
2 Os whereby the City is to be a co -applicant with -- the
2
BY MR. TUCHMAN:
3 Redevelopment Agency and the City to be co -applicants with
3
Q. lid you review a draft of Exhibit 7, which is the
4 the owner/developers?
4
June 5, 2000, memo, before it was sent out?
5 A. Well, the City — you can have an application for
5
A. I don't recall specifically.
6 a specific plan without any ordinances, which is what we're
6
Q. Were you aware that the June 5, 2000, metro would
7 doing for the Edinger Corridor area.
7
be used in the litigation?
8. MR. TUCHMAN: Read the question back, please.
8
A. I'm trying to recollect if that was — I knew
9 (Whereupon the previous question was read
9
there was litigation ongoing. I suppose I assumed it would
10 back by the court reporter as requested.)
10
eventually be provided In relationship to that
11 THE WITNESS: My understanding is that's not the
11
Q. And it would be provided to Ezralow?
12 requirement.
12
A. I'm sorry?
13 BY MR. TUCHMAN:
13
Q. And that it would be provided to Ezralow?
14 Q. Do you know if it was discussed as to whether
14
A. Or it could have been provided to you. We've
15 there was a hearing whether this should be properly noticed
15
been providing numerous documents through discovery from
16 whether they should become an applicant?
16
Lord knows when.
17 MR. SHIPOW: Objection. Argumentative to the
17
Q. That was a long process. Okay. Do you know why
18 extent that it suggests that this was improper.
18
this memo was CCed to you, Exhibit 7, the June 2000 memo?
19 MR. TUCHMAN: He can answer the question.
19
A. Because I'm the day -today administrator of the
20 THE WITNESS: I don't understand the question.
20
Redevelopment Agency.
21 MR. TUCHMAN: Withdraw the question.
21
Q. And do you know why this memo was CCed to
22 BY MR. TUCHMAN:
22
Gus Duran?
23 Q. Was it discussed with anyone that this should be
23
A. Because he's the staff person I've principally
24- subject of a motion? '
24
assigned to this.
25 A. Not that I recall.
25
Q. Okay. And have you had any conversations —
28 (Pages 109 to 112)
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1 after this memo did you have a conversation with
2 Gerald Chapman?
3 A. Well, I talk to Jerry quite regularly.
4 Specifically in relationship to this, I don't recall. I'm
5 trying to remember. No, I don't recall specifically, no.
6 Q. You don't recall any conversations?
7 A. Well, I talk with Jerry quite a bit. I don't
8 recall, you know, if he —1 don't recall when and if 1
9 discussed this specifically with him.
10 Q. Did you discuss with Mr. Chapman that this memo,
11 Exhibit 7, was back -dated?
12 A. No, I wasn't aware it was back -dated. And when
13 you say "back -dated," what do you mean by that? In your
14 mind, how are you defining "back -dated"?
15 Q. Let me explain something to you. It says
16 June 5th, 2000, on there; right? Well, "back -dated" means
17 it was written sometime after and dated back to June 5.
18 A. I don't know that to be the case, so —
19 Q. Okay. Did you have that conversation with
20 Mr. Chapman at the end of the second week of June, 2000?
21 A. Not that I recall.
22 Q. Did you discuss the legalities of Exhibit 7 with
23 Mr. Chapman?
24 A. Yeah, I can't recall if it was with Mr. Chapman
25 or one of the Planning staff who was discussing it with
113
done and whether, you know — how this generally fits in
how we do things. Actually, I don't recall any discussions
with Mr. Howard prior to this coming through.
Q. Did Mr. Zelefsky tell you he is now named as a
defendant in the suit?
A. Well, I've seen the Subpoena, so that's fine.
We're all — it's in our capacity as in our jobs. To be
named in litigation is nothing new. It doesn't cause any
9 concern.
10 Q. I understand it's nothing new. Have you
11 discussed Exhibit 7 with Mr. Silver?
12 A. Yes.
13 Q. And what did Mr. Silver say about Exhibit 7,
14 which is the June 5, 2000, memo?
15 A. He just wanted to -well, one of the things was
16 the action that we put on the subsequent agenda of the
17 suited plan wasn't approved, was the ratification of his
18 memo. That was probably the main discussion we had about
19 it.
20 Q. Was he worried about it?
21 A. Was he worried about it?
22 Q. Yeah.
23 MR. SHIPOW: Objection. Calls for speculation.
24 THE WITNESS: Well, you're going to be talking.
25 with him tomorrow. I think he wanted to make sure that we
1 Mr. Chapman.
1
2 Q. When one of the Planning staff was discussing it
2
3 with Mr. Chapman?
3
4 A. I don't know. Again, this would be -- firsthand;
4
5 I don't know. You know, I've discussed this — this memo
5
6 and the general approach in how the City also approaches
6
7 specific City plan applications when this was coming up,
7
8 and we were discussing it. I talked about it with
8
9 Howard Zelefsky. I believe I talked with Jane James about
9
10 it and Herb Fauland. They appear to be the primary
10
11 liaisons of the Planning Commission, so I don't know if
11
12 they spoke with Mr. Chapman about that. Or I may have
12
13 spoken with Mr. Chapman myself, but I speak with hundreds
13
14 of people on a day -today basis about different projects.
14
15 Q. Did Zelefsky tell you he had reservations about
15
16 this memo? --
16
17 A. Ns. My recollection is he didn't think it was
17
18 necessary because the standard course is the City's view is
18
19 the applicant for the specific plan.
19
20 Q. What else did you talk about with Mr. Zelefsky,
20
21 Mr. Biggs?
21
22 A. In the course of five years of employment?
22
23 Q. We're talking about Exhibit 7. Thank you.
23
24 A. Howard and I actually have had most of our
24
25 discussions about it, sort of, you know, after this was
25
114
115
were in the best position legally because of the litigious
environment that we find ourselves in.
BY MR. TUCHMAN:
Q. Okay. And he wanted to make sure that the City
and the Redevelopment Agency double-crossed the I's and
double-crossed the T's; right?
THE WITNESS: Well, whatever I said.
BY MR. TUCHMAN:
Q. All right. Now, did you have —
A. The best defense is a good offense, so —
Q. Okay. The City wants to go on the offense,
that's okay.
A. Well, when you're being -- when someone decides
to pursue litigation, which wasn't of our choosing, then,
of course, we have to respond in a like way.
Q. And you want to make sure that you protect the
project?
MR. SHIPOW: Objection. Argumentative.
THE WITNESS: We want to make sure that -- the
community has been waiting for 10 to 15 years for
revitalization of Huntington Center. We want to make sure
the project moves forward in the most expeditious manner to
accomplish our goals in the area.
BY MR. TUCHMAN:
Q. And you'll do what it takes to get that done?
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MR. SHIPOW: Objection. Argumentative.
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THE WITNESS: Well do what it takes within our
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legal rights and what it takes within public policies we're
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legally prescribed to follow.
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BY MR. TUCHMAN:
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Q. And was it the City's intent as of June 5, 2000,
6
7
to assist Ezralow in its litigation against Burlington Coat
7
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Factory?
8
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A. No. The City's intent was to ensure that we
9
10
could proceed with the consideration and approval of the
10
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specific plan.
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Q. Okay. I want to go back to Exhibit 3, which is
12
13
the privileged log. We have a 12113/99, No. 20, "Fax: Term
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Sheet of Ezralow Proposal." Can you briefly tell me what
14
15
that is?
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A. That's an outline of Ezralow's request for
16
17
financial assistance.
17
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Q. And the 12/13 fax was a follow-up to that. What
18
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is No. 19?
19
20
A. I'd have to go back and double check.
20
21
Q. Has there been a financial deal signed between
21
22
the City, the Redevelopment Agency — or the Redevelopment
22
23
Agency, and Ezralow?
23
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A. No.
24
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Q. What does this "financial deal" mean?
25
117
1
A. Well, they submitted a financial Pro Forma of the
1
2
project and gave as an indication of some level of
2
3
assistance that they would like, and this was just outlined
3
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in that.
4
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Q. Nothing has been agreed to with Ezralow between
5
6
the City?
6
7
A. No, nothing is agreed to until an OPA is approved
7
8
with a public hearing.
8
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Q. Who are the principal negotiators of the OPA on
9
10
behalf of the City and the Redevelopment Agency?
10
t 1
A. Myself, Kane, and Jim Rabe.
11
12
Q. And who on behalf of Ezralow?
12
13
A. Bryan Ezralow, Doug Gray, and Jim Hughes.
13
14
Q. Okay. What is this fax, "Mt. Holly Partners
14
15
Ezralow, Proposal Pro Forma." Do you know what that is?
15
16
A. It's a Pro Forma. Actually, Mark Picket is
16
17
another consultant they're using. Maybe his firm is called
17
18
Mt. Holly Partners. I just recognize Mark's name,
18
19
financial consultants.
19
20
Q. Picket is P-i-c-k-e-I.
20
21
A. "Picket"
21
22
Q. I'm sorry, what?
22
23
A. "Pickel."
23
24
Q. Okay. Pickel. No. 17, "Public Revenue
24
25
Projections." Those are -- what is that?
25
118
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
A. Based on gross development square footage that
they contemplated, Jim Rabe did projections of sales tax
and property tax.
Q. The next two items, 15 and 16, which deal with
Macerich, why were those dated in December of 1999? 1
thought they had sold the property by then.
A. They had We were -- my recollection is we were
just refreshing Council's memory as to the terms that
Macerich had requested for comparison with Ezralow. It
might have been dated that day, but they were probably
copies of documents from '98 and earlier '99.
Q. The Items 13 and 14 from James Rabe at Keyser
Marston, again, these are projections based on the
proposals made by Ezralow?
A. Yes, and our own analysis of those.
Q. Okay. No. 12, what does that mean, 1/27/2000,
"Proposed Participation," author, David Biggs?
A. My recollection Is that we outlined for the
Agency Board, an upside participation torn, and that might
be contingent if we were to provide financial system, Le-
if the property was more succeed l and the gap really
didn't materialize, then we wanted an upside participation
from the developer.
Q. Was the proposed participation that you developed
ever finalized?
119
A. No. No terms have been finalized.
Q. Next, 2/13/2000, "Notes for Executive Session,
sent by Murray Kane to David Biggs."
How long was that document?
A. What was the number you're referring to?
Q. No. 11, please.
A. I don't recall,
Q. When was that executive session?
A. I don't recall.
Q. Do you know what the purpose of that executive
session was?
A. No, not without going back and looking at my
notes and the outline we used.
Q. Why does Murray Kane communicate with you as
opposed to someone else?
A. Why does he communicate with me?
Q. Correct.
A. As opposed -- who else do you think he should be
communicating with?
Q. Maybe the City Administrator, maybe Duran, maybe
the Mayor.
A. No, because this is my primary responsibility.
I'm the lead negotiator from the City's perspective. So
Murray and Jim Rabe assist me in that regard.
Q. Okay. So it's fair to say you`re the general
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contact person that Mr. [Cane deals with?
A- Yes, generally. You know, sometimes Gus on
certain items, not usually Mr. Silver.
Q. Were you kept updated by Mr. Kane on the
litigation pending between Ezralow and Burlington relative
to the Petition to Compel Arbitration?
MR. TEPPER: Objection. Calls for
attorney/client communication.
THE WITNESS: We discussed it in general, but
also Mr. Gray gave me regular updates on it. I speak to
him once or twice a week.
BY MR. TUCHMAN:
Q. And do you know what happened to the Petition to
Compel Arbitration?
A. No, I don't know specifically. I thought it was
put on hold or something. I don't know the — if it was
disposed oL
Q. Okay. Now, the next item is — we were looking
at 11. We're going to 10, "2/13/2000, Fax: Ezralow/City
comparison, sent by Murray Kane to David Biggs."
What is that?
A. If my recollection serves me right, it was just
comparing Ezralow's request for financial assistance of
what the City had previously offered Macerich.
Q. And what is No. 9?
121
A. Probably an update or a version of No. 10,
usually multiple iterations of these things which we use in
reviews and closed sessions.
Q. And No. 8?
A. Again, a summary of how we would close the gap.
Q. And No. 7?
A. I think that was Jim's analysis about — you
know, where he agreed and disagreed with the seller on the
cost and revenues.
Q. And that's cost of construction, cost of fees,
and the revenues would be generated from certain tenants?
A. Well, tenants in general They're not
identified. They're just million square feet at average
rents discussed.
Q. What were the average rents discussed?
A. I don't recall. —
Q. Were they discussed on a square footage basis,
cost per square footage basis?
A. I'd have to go back and look and see if there was
a breakdown as far as rents on a space -by -space basis,, but,
you know, we look at the overall number at the bottom line
because it will vary from tenant to tenant. Some rents
will pay higher than the average users; some tenants will
pay lower.
Q. Did you ever have a discussion with anyone as to
122
1 why a specific plan, first it was 12 and then it was 13,
2 had two different charts? There was A and there was B?
3 MR. SHIPOW: Objection. Ambiguous.
4 BY MR. TUCHMAN:
5 Q. You can answer.
6 A. Well, no, I don't understand the question.
7 Q. Well, you know what SP-12 is; right?
8 A. Yes.
9 Q. What is SP-12?
10 A. That's a specific plan that's being considered
11 for the mall, for Hantingtom
12 Q. Do you know what SP-13 is?
13 A. Well, actually, I don't — what are you -- no,
14 it's one of the two. It's either Specific Plan 12 or
15 Specific Plan 11. I don't know which number is the current
16 one.
17 Q. Did you ever discuss the fact that the SPs that
18 were submitted had variations in them, one variation that
19 included Burlington, and one variation that clearly
20 excluded Burlington?
21 A. Well, no, I don't agree it excluded Burlington.
22 It just didn't include Burlington in its current
23 configuration.
24 Q. Did you ever have a discussion with anyone that,
25 the configurations that were suggested where Burlington was
123
1 included and where it was excluded — or whether its
2 current form was excluded was interpreted as excluding
3 Burlington?
4 A. Yes. As a matter of fact, it was discussed that
5 Burlington can go to any other number of areas by
6 consolidating space and maybe going to a second story.
7 Q. When was that discussed?
8 A. As recently as when the specific plan was being
9 considered before the Council I think as I've seen you
10 make your plans, I think you've read way too mach into
11 those illustrative charts that are there. The specific
12 plan does not preclude any particular users, nor does it
13 mandate any particular users.
14 Q. Did you have any conversations with Mr. Tom
15 Livengood regarding that and whether I or anyone are
16 reading too much into that?
17 A. No, I don't recall speaking with Tom about that.
18 Q. Okay. Did you read his memo dated June 22?
19 A. Not at the time, but I've seen it subsequent to
20 that.
21 Q. Do you have any comments on that?
22 A. Pardon?
23 Q. Do you have any comments on that, any reaction to
24 it?
25 A. I think Mr. Uvengood is mistaken in his
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understanding, but —
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Q. Okay. All right. Anybody else that's mistaken
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in their understanding that's working at the City that has
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brought this to your attention?
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MR. SHIPOW: Objection. Calls for speculation.
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THE WITNESS: He didn't work for the City. He's
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a Planning Commissioner. So he's not a professional
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planner by trade and really wouldn't be qualified as an
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expert or someone who could comment on the planning
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approach, whether it was appropriate or not.
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BY MR. TUCHMAN:
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Q. Okay. Let's look at No. 6 on Exhibit 3. It
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says, "Undated, Discussion of Alternatives." How many
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pages is that?
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A. I don't r ecaD.
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Q. What does that mean, "Discussion of
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alternatives"?
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A. We would have been looking at financial
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alternatives.
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Q. It didn't have anything to do with Burlington?
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A. No.
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Q. No. 5, "Undated, Ezralow/Macerich Proposal
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Comparison," what is that?
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A. Same thing, an undated — comparing Ezralow's
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request for what Macerich had asked for.
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125 1
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
either. There's just a gap. You look at cost, subtract
what revenue will support it, you come up with a gap.
That's the level of specificity we use to deal with.
Q. You'll have to sell that to the City Council?
A. We do that with every transaction, every time we
enter into any owner participation or DDA. We've done that
for the Hilton. We've done that for the project downtown.
We've done that for Plaza Maria This is the way
development agencies do business.
Q. It says the name Rebecca Casey. She's from
Saybrook?
A. Saybrook.
Q. There's another name there, R-i-e-d-1.
A. She got married -=
Q. Let's move on. There were three items.
A. — during the interviewing period.
Q. Okay.
A. I'll pass on your best wishes.
Q. The first three items all deal with July 5,
2000. One is a closed session outline. What did that have
to address? What did that deal with?
A. That's just where we put up the things we want to
update the Council on as far as our negotiations with the
developer and what our open points are.
Q. And in that, there was a discussion to sue
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1
Q. Okay. Next -- actually, I want you to take a
1
Burlington?
2 -
look at all of Exhibit 3. Do any of the documents
2
MR. SHIPOW: Objection. Calls for confidential
3
contained on Exhibit 3 refer in any way to Burlington Coat
3
information.
4
Factory?
4
THE WITNESS: No, there was a separate closed
5
A. I don't believe so, no. We never analyzed the
5
session item and a recent closed session. That would have
6
project on the basis of the specific tenants.
6
been — it wouldn't have been the most recent one —
7
Q. Now, No. 4, "Undated, True Interest Cost
7
BY MR. TUCHMAN:
8
Calculation," what is that?
8
Q. 17th?
9
A. That has to do with a particular business term as
9
A. — to gain access to the building for purposes of
10
to if we use bond financing for the project, how do we
10
the appraisal, and that was approved at the last Council
11
calculate true interest costs, what costs are allowed in
I
meeting, but that was a separately noticed closed session
12
that calculation. It's a deal point we're discussing with
12
specifically on that litigation in order to allow our
13
the developer.
13
appraiser to gain access to the building.
14
Q. I think you mentioned — what size bond do you
14
Q. And has that been filed?
15
think would be necessary? —
15
A. I don't know.
16
A. I don't know at this point in time.
16
Q. And do you know when that will be filed?
17
Q. Was the amount $300,000 ever discussed?
17
A. No, I don't..
18
A. 300,000?
18
Q. Now, what was the purpose of this closed session
19
Q. Yeah.
19
on 7/5?
20
A. Oh, no, it would have to be much more than that
20
A. We're in negotiations with the developer pursuant
21
Q. Was the amount $300 million ever discussed?
21
to the direction of the Agency Board provided to negotiate
22
A. It's anticipated that the financials of this
22
terms of the participation agreement. And when we're doing
23
project will be well in excess of $10 million, so there's
23
that, we're quite often back for two weeks getting
24_
been no amounts in that range ever discussed, and they
24
direction as far as deal points.
25
haven't been discussed based on any particular use of funds
25
Q. So how far along is the progress? How is it
126 1 128
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A Veritext Company- 800.649.8787
DAVID BIGGS, 07.25.04Y
BURLINGTON V. HUNTINGTON CENTER
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going?
A. I expect we'll have the DDA, as I indicated, in
the early &&
Q. Okay. An OPA or a DDA?
A. OPA, probably, in this instance.
Q. And what's a DDA?
A. DDA is usually with the developer that doesn't
own or have a property interest, basically the same
contract. One's an owner participation agreement; the
other is a disposition of development agreement.
Q. One of the Ezralow entities would be -- I guess
Huntington Center Associates would be a DDA?
A. No, it would be an OPA. They own the majority of
the site.
Q. Okay. Now, this "Closed Session History," what
16 is that?
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1t
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A. Just reminded them of the different closed
sessions, how we got to where we were at this point.
Q. And then the next is "Public Assistance Proposal
Summary," what is that?
A. Just an update of the proposed deal terms we're
negotiating with the developer.
Q. Okay. Are you aware of other documents that are
responsive to our Subpoenas to you, which are Exhibits 1
and 2, that have not been provided to us in your production
129
or identified in your privileged log?
A. No. To the best of my knowledge, this included
everything we have in our files in Economic Development.
Q. And Economic Development only; is that right?
A. Right, yea
Q. So III ask the other people about the other
departments.
A. Right, Planning would have more documents
relating to specific planning or applications.
Q. Does the Redevelopment Agency have -- who are
their administrators? Is it the EDD?
A. Yes, my department is where the day -today
administrator of the Redevelopment Agency is.
Q. Now, Mr. Silver, does he have an office -- what
floor are you, the 5th floor?
A. 5th floor.
Q:' Do you have an office on the 5th floor?
A. No, his office is on the 4th floor.
Q.. And he essentially wears two hats at the City?
A. Yes.
Q. And does he have separate files from you for the
EDD relative to the Redevelopment Agency?
A. I don't think he keeps separate files from as,
but I don't know that. You'll have to ask him that.
Q. Are you aware he has a separate drawer or files
130
1 pertaining to the Redevelopment Agency activities?
2 A. I don't believe be does, but I don't know
3 firsthand.
4 Q. Are you aware of anyone else other than your EDD
5 Department as well as Mr. Silver — who well ask later --
6 who will have documents responsive to Exhibits 1 and 2?
7 A. No, I don't believe —you know, if you ask the
8 Planning Department, they would have all the documents
9 related to the specific plan. Some of the department's
10 screening projects, like Public W irks, would have copies of
11 things that the Planning Department might have, but
12 Planning should have everything. They're the comprehensive
13 keeper of those ores. So there might be a Public Works
14 person that's reviewing the project from the specific plan
15 perspective, but everything that they are using is —
16 should be also in the possession of the Planning
17 Department.
18 Q. Are you aware of the person's name Alia, A-l-i-a;
19 Hokuki, H-o-k-u-k-i?
20 A. Doesn't ring a bell.
21 Q. Are you aware of a person named Jon, J-o-n;
22 Veregge, V-e-r-e-g-g-e?
23 A. Doesn't ring a bell either.
24 Q. Are you aware of any meetings that took places
25 between the Planning Department and Scott Dinovitz in
131
1 January of 2000?
2 A. AD I know is that the Planning Department meets
3 regularly with Scott and some of their consultants. That's
4 the role of the Planning Department in processing projects
5 through the entitlement system. Sometimes we attend those
6 meetings; sometimes we don't. If anyone is going to those
7 meetings, if they were Planning meetings, Gas would be
8 attending those.
9 Q. Gus Duran; is that right?,
10 A. Yea
11 Q. Who Jayna, J-a-y-n-a; Morgan, M-o-r-g-a-n?
12 A. She's with EDAW. They're a consulting firm that
13 I think prepared the draft for this particular plan.
14 Q. Are you familiar with who Greenberg Farrow is?
15 A. They're some kind of consultant, traffic or
16 architecture. I don't recall specifically.
17 Q. Do you know who Keil, K-a-i-l; Maberry is,
18 M-a-b-e-r-r-y?
19 & Not offhand.
20 Q. And Dick Bowman, B-o-w-m-a-n?
21 A. No.
22 Q. What about Khara, K-h-a-r-a; Covington;
23 C-o-v-i-n-g-t-o-n?
24 A. Doesn't ring a bell.
25 Q. Okay. Are you aware of Planning Department
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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meetings with Ezralow, and EDAW in December of 1999?
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A. I think I already indicated that Planning would
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be meeting regularly with someone like Ezralow who is
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proposing a project in town. Exactly when those meetings
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were and who was in attendance, since I don't normally
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attend them, I don't know when they might have occurred or
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who was there.
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MR. TUCHMAN: Okay. I'm going to ask the
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reporter to mark for identification as Exhibit --
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THE WITNESS: Can I take a break for the
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restroom, please?
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MR. TUCHMAN: Yeah. Sure.
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(A brief recess was taken.)
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MR. TUCHMAN: I'm going to ask the reporter to
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mark for identification as Exhibit 9, this is a letter
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dated March 3, 2000, from the City of Huntington Beach to
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Burlington.
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(Plaintiffs Exhibit 9 was marked
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for identification by the court
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reporter and is attached hereto.)
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BY MR. TUCHMAN:
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Q. Do you recognize Exhibit 9?
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23
A. Yes.
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Q. And did you cause Exhibit 9 to be sent out on or
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25
about March 3, 2000?
25
133
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A. Yes.
1
2
Q. Okay. And you sent this to Burlington Coat
2
3 -
-Factory; right?
3
4
A. Amongst others, yes.
4
5
Q. You sent this letter addressed to Burlington to
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6
others?
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A. We sent the same letter to other possible owner
7
8
participants in the site..
8
9
Q. Okay. So what you're saying is that you didn't
9
10
send the original of Exhibit 9 to everybody, but something
10
11
like Exhibit 9 to other people?
11
12
A. We sent — yes.
12
13
Q. Okay. And who else did you send something like
13
14
Exhibit 9 to?
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15
A. It would have gone to Ward's, Mervyn's. I'd have
15
16
to get an exact Ifst, but SCE, and others who had a longer
16
17
term leasehold interest.
17
18
Q. What was the response of Mervyn's?
18
19
A. I don't think Mervyn's submitted a response.
19
20
Q. Okay. Do you know why?
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A. No, I've not had any discussions with them.
21
22
Q. Did you receive a response from Montgomery
22
23
Ward's?
23
24.
A. Yes, we did.
24
25
Q. And what was their response?
25
134
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
A. Well, they responded with some materials
requested to the proposal, in the RFP.
Q. And you received a response from Ezralow?
A. Yes, we did.
Q. Okay. And you received a response from
Burlington Coat Factory?
A. Yes, we did.
Q. And when you received the responses, you received
them from also Southern California Edison?
A. No, I don't believe they responded.
Q. So you sent out five and received three?
A. I don't recall exactly how many we sent out. It
was just an illustrative list, and I think we did receive
three responses back.
Q. In addition to receiving the three responses, did
you receive the — those were Statements of Interest you
received right around April 17th, from the three of them?
A. The first step was a Statement of Interest. We
did receive those, and I don't recall — I'd have to go
back and check whether they all three, again, submitted the
more detailed proposal.
Q. You received proposals which were provided by
Ezralow, Burlington Coat Factory, and Montgomery Ward's; is
that right?
A. I believe so.
135
Q. And then the three proposals were compared and a
decision was made?
A. Yes, by the City Council.
Q. Was it ever an option whereby the -- you call it
the RFP process?
A. This we would refer to as the owner participation
process.
Q. What's the RFP process?
A. An RFP is a more formal process where -- either
before or after we do an owner participation, we do a
general solicitation of developers. We don't just limit it
to owner participants.
Q. Has that ever been done in •this case?
A. No.
Q. Is it ever going to be done?
A. No, I wouldn't imagine.
Q. If I called this an RFP process, that would be
wrong?
A. No, I would refer to it as the owner
participation solicitation.
Q. The Statement of Interest and Request for
Proposal for redevelopment which is paragraph 9, was it
possible or was it ever an option for the City Council to
select the Redevelopment Agency or the City of Huntington
Beach to be the one who was going to develop the property?
136
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DAVID BIGGS, 07.25.00-
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A. I suppose it could have been an option, but we
typic* 2"W have tames that aggressive redevelopment
approack -
Q. Wby.wt?
A. Because we don't have the resources.
Q. The City of Huntington Beach and the
Redevelopment Agency, they don't build shopping centers;
right?
A. Well, we've built restaurants, beach
concessions. We have built and operated office buildings,
so I don't know, maybe — I don't know if it's true whether
or not they've built and operated a shopping center.
Q. Was it ever your intent — as of March 3, 2000,
was it your intent as of then to have the City or
Redevelopment Agency build the shopping center?
A. -No.
Q. Was it the intent of the City of Huntington Beach
or the Redevelopment Agency as of March 3, 2000, to finance
the building of the shopping center?
MR. SHIPOW: Objection. Ambiguous.
THE W rNESS: We had anticipated, based on our
previous experience, that we would be a financial partner,
with whomever redeveloped the department center.
BY MR. TUCHMAN:
Q. A financial partner as in terms of the majority
137
one was Ezralow; is that right?
A. From our evaluation, yes, given the Agency's
stated goal of the comprehensive redevelopment of the
center. That wouldn't have precluded Burlington or
Ward's —
6 THE REPORTER: I'm sorry.
7 THE WITNESS: That would not have precluded
8 either Burlington or Ward's directly partnering with
9 another development entity firm proposing a comprehensive
10 redevelopment of the center itself.
11 BY MR. TUCHMAN:
12 Q. And the Statement of Interest — and then the
13 proposal submitted around May 2, 2000, consisted Ezralow
14 was by far the most qualified and most able to develop the
15 shopping center?
16 A. And the only one that was responsive to the
17 stated objectives of the comprehensive redevelopment of the
18 center.
19 Q. Okay. Did you know as of May 2, 2000, that
20 Ezralow would be selected as the developer?
21 A. No.
22 Q. When did you first know?
23 A. After the Agency Board made that decision when
24 they considered the three proposals.
25 Q. Okay. Now, is it still possible for additionak
1
of the money coming from the City and the Agency?
1
2
A. No.
2
3
Q. A partner in terms of what percentage of capital
3
4
would you be providing?
4
5
A. Well, it would be the same gap we talked about
5
6
depending on who responded and what was involved There
6
7
would be some type of a gap where we would participate-
7
8
through the sharing of future revenues, future public
8
9
revenues.
9
10
Q. If I were to — if I called you today at the
10
11
Economic Development Department and I told you, "I'm from
11
12
Burlington, and I want to make scut rm in that store,"
12
13
what's your response going to be?'
13
14
MR. SHIPOW: Objection. Lack of foundation.
14
15
THE WITNESS: Our response would be to contact
15
16
Ezralow and work with them on it --
16
17
BY MWTUCHMAN: —
17
18
Q. _ So Xwe want to be in that shopping center — if
18
19
Burlington wants to be in the shopping center, we've got to
19
20
talk to Fzrslow; not you?
20
21
A. At this point in time, yes.
21
22
MR. SHIPOW: Same objections.
22
23
BY MR. TUCHMAN:
23
24
Q. Okay. Good. The Request for Proposals or the
24
25.
Statements of Interest that you got back, the only viable
25
138
139
developers or entities to submit OPAs for parts of the
center?
A. Not until we've concluded either successfully or
unsuccessfully our negotiations with Ezralow.
Q. Has Montgomery Ward's suggested an OPA for their
13 acres?
A. Yes.
Q. And that was rejected?
A. No. We selected Ezralow to negotiate exclusively
for a period of time:
Q. What period of time is that?
A. Well, as we talked about, initially 60 days, and
then up until we approve an owner participation agreement
or it's disapproved or we don't present one.
Q. I thought you said you — I did not understand
your answer. I thought you said you authorized Ezralow to
negotiate with Montgomery Ward's; is that incorrect?
A. I didn't say that.
Q. I understand that. Now, this letter, did you
personally draft Exhibit 99
A. No.
Q. Who drafted it?
A. I believe it may have been Gas Duran in
consultation with our special council, Murray Kane.
Q. Okay. And at the time that you wrote to
140
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
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Burlington, did you have any idea what the status of
1
least one foot high almost every day.
2
Burlington's lease was?.
2
Q. Now, did you discuss with Mr. Duran the fact that
3
A. No, I don't recall.
3
we wanted to meet with you?
4
Q. Okay. Would it be fair to say that in April of
4
MR. SHIPOW: Objection. Ambiguous as to Who you
5
2000 you learned what the terms of the lease was with
5
mean by "we."
6
Burlington?
6
MR. TUCHMAN: Burlington Coat Factory.
7
A. I've been exposed to that through some of the
7
THE WITNESS: And as of when?
8
litigation that we've been drug into, so I don't recall the
8
BY MR. TUCHMAN:
9
specific dates as to when that is.
9
Q. March 6th, 2000.
10
Q. Okay. Now, your position is a hired position;
10
A. You asked me about this the other day.
11
right? It's not elected?
11
Q. I did?
12
A. Right, I'm a hired, appointed staff position.
12
A. I responded.
13
Q. Who hued you?
13
Q. That you weren't aware of it?
14
A. Well, the City Administrator makes
14
A. I don't recall specifically the question.
15
recommendations, and then the City Council approves the
15
MR. TUCHMAN: I'm going to ask the reporter to
16
contract
16
mark for identification as Exhibit 10 - let me zip off a
17
Q. And is your contract — what's the term of your
17
couple of copies of that.
18
contract in terms of time?
18
(Plaintiffs Exhibit 10 was marked
19
A. It's open.
19
for identification by the court
20
Q. Okay. And have you performed any written reports
20
reporter and is attached hereto.)
21
or evaluations relative to the Burlington Coat Factory
21
BY MR. TUCHMAN: '•
22
action against Ezralow or the Ezralow entities?
22
Q. This is a letter dated March 6th, 2000. It's to
23
A. No.
23
Aviv L Tuchman from Gustavo Duran.
24
Q. Have you seen a report authored by anyone
24
Do you recognize Exhibit 10?
25
pertaining to the Burlington suit against the Ezralow or
25
A. No, not specifically.
141 1 143
I
the Ezralow-related entities?
1
Q. Okay. Did you direct Mr. Duran to -- do you
2
A. A report? I've seen some of the filings over'
2
recognize this as your signature?
3
time, but I don't recall seeing a report.
3
A. Yea
4
Q. You were given copies of the Burlington Petition
4
Q. Okay. Was he authorized to sign on behalf of the
5
to Compel Arbitration against Ezralow, were you not?
5
City of Huntington Beach, Department of Economic
6
A. I don't recall specifically that document versus
6
Development, as of March 6th, 2000?
7
any others.
7
A. Well, all my matters are specifically
8
Q. Do you know -- do you keep a separate Burlington
8
authorized. I don't approve everything that goes out.
9
Coat Factory file?
9
Q. My question was: Is he authorized to use the
10
A. Gus keeps the primary files. I keep the closed
10
letterhead, sign letters, and send them out?
11
session files.
11
A. Oh, certainly. Sorry.
12
Q. "I keep the" --
12
Q. Did you see Exhibit 10 before it went out?
13
A. -- closed session files.
13
A. I don't recall.
14
Q. So it would be fair to say Gus Duran is the
14
Q. Okay. Does this refresh your recollection that
15
person to ask? --
15
Burlington Coat Factory tried to meet with you?
16
A. To ask about files, yes.
16
A. No. Again, not necessarily.
17
Q. Okay. Do you know if you received any loss --
17
Q. Okay.
18
any information from any litigation against Ezralow from
18
A. I mean, you know, sometimes I'm out of town.
19
Ezralow or their attorneys prior to June 5th, 2000?
19
Sometimes — but, again, I think earlier on I also
20
A. I don't recall. If you have a specific document
20
commented if we didn't meet with you, it was on the basis
21
for me to look at, I'll be happy -- you know, I get a stack
21
of litigation.
22
of paper three feet high every day across my desk. This is
22
Q. Does it say that in your Exhibit 10?
23
not the only project we're working on.
23
A. Yes, it does.
24.
Q. Three feet high, you say?
24
Q. Where does it say that? So you were concerned
25
A. Yeah, that's a bit of an overexaggeration, but at
25
about the litigation/Petition to Compel Arbitration that we
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have?
A.. Well, yeas we don't want to become involved as
any thilyd party In a tenanvUndlord dispute.
Q. Is that a written policy of the City?
A. Written policy?
Q. Yeah.
A. No. It's just a very good one to follow.
Q. Was that policy followed in this case?
A. Pardon?
Q. Was that policy followed in this case?
MR. SHIPOW: Objection. Argumentative.
Mischaracterizes the testimony.
THE WITNESS: I believe we endeavored to.
MR. TUCHMAN: I'm going to ask the reporter to
mark for identification as Exhibit 11 a letter dated March
28, 2000, from Mr. Biggs.
(Plaintiffs Exhibit 11 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. Do you recognize Exhibit 11?
A. Yes.
Q. Okay. And did you send Exhibit 11 out in the
ordinary course of business on or about March 28, 2000, to
Douglas Gray?
145
A. Yes, there was a letter prepared by Gus that I
signed.
Q. Why did you send this letter?
A. Because in order to determine which properties we
might have to appraise to conclude our analysis of the
potential economics of a transaction involving the mall,
we sent the, letter for the reasons it says in the letter.
Q. Very good, Mr. Biggs. Did you get the lease of
Burlington Coat Factory back in response to Exhibit 11?
A. I don't recall.
Q. Okay.
A. I guess Gus will know.
Q. Okay. Well, that's good. Are you familiar with
the City of Huntington Beach Planning Department Planning
and Zoning Plan Check Form, or is that something that's not
in your department?
A..- Not in our department.
Q.. Good: Project meeting agendas, are those
generated by the Economic Development Department or
Planning?
A. If I can see it, I can tell you which plan —
Q. It's Item 5.
A. Planning.
Q. Thank you.
A. I think all the things you're looking at there
146
1 with those cover things look like Planning documents.
2 Q. Okay. If they're Planning, we can generally cut
3 right through them, okay. I did note though that in the
4 Community Redevelopment Department, Development Review
5 Request, this was sent to you. III show you a copy of it.
6 This is Item 6. And III ask the reporter to mark for
7 identification as what?
8 THE REPORTER: 12.
9 (Plaintiffs Exhibit 12 was marked
10 for identification by the court
11 reporter and is attached hereto.)
12 BY MR. TUCHMAN:
13 Q. And please tell me what Exhibit 12 is.
14 A. Exhibit 12 Is a standard form, which I mentioned
15 earlier on today in my deposition, where the Planning
16 Department circulates project plans, all kinds of
17 development applications to various departments to review
18 and comment.
19 Q. Now, your name is circled, which means you
20 received a copy of it?
21 A. Yes.
22 Q. Now, I think the last page is your memo
23 responsive to it?
24 A. Yea.
25 Q. Okay. Did you have any other comments responsive
147
1 , to the plan?
2 A. Probably not at this point in time. I think this
3 wasn't the only review that we had. There were ones prior
4 to this.
5 Q. Okay. The last page, that is your writing and
6 that is your memo?
7 A. Yes, that's my signature. I think Gas generated
8 that memo.
9 Q. As of April 11, 2000, did the Economic
10 Development Department state one way or the other its
11 position with respect to Burlington Coat Factory?
12 A. No. Our position remains the same that the
13 specific plan does not mandate nor preclude any particular
14 user in the context of the specific plan, and we're not
15 sufficiently advanced in our evaluation of the project to
16 know which tenants or users make the mix for the proposal
17 that Ezralow is doing.
18 Q. As the Person Most Knowledgeable for the
19 Redevelopment Agency of the City of Huntington Beach and in
20 the capacity as the Director of the Economic Development
21 Department, are you aware that there are certain provisions
22 in the Burlington Coat Factory lease that Ezralow's
23 predecessors require participation in any redevelopment?
24 MR. SHIPOW: Mischaracterizes the document and
25 the document speaks for itself.
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37 (Pages 145 to 148)
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DAVID BIGGS, 07.2S.00
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1 THE WITNESS: Actually, III leave that up to the
1
BY MR. TUCHMAN:
2 attorneys to decide between you two what that means. I
2
Q. Okay. But certainly there is a component which
3 think I've seen that language as well as the language about
3
is for litigation?
4 relocation rights and so, ultimately, hopefully, that will
4
A. Not speciflcaW for this project. We budget an
5 be worked out between the two of you.
5
amount for litigation every year. That's a couple hundred
6 BY MR. TUCHMAN:
6
thousand, but, you know, we don't do it on the basis of
7 Q. It doesn't concern you one way or the other?
7
individual projects, so you're not the first to engage as
8 A. It does concern us as we want a successful
8
in litigation, and probably won't be the last It's sort
9 project there, but until the point in time we know what the
9
of about the same each year.
10 project is, how it might shape out who are going to be
10
Q. All right. Earlier I had asked you about SP-12
11 tenants, what the developer is able to do in relationship
11
and SP-13. It sounded to me like you weren't familiar with
12 to the project, it's too soon to say.
12
the difference of the two. Am I correct that you don't
13 Q. Has anybody told you that the redevelopment
13
know the difference?
14 provisions of the lease will further expand the financial
14
MR. TEPPER: I think you're referring to the
15 commitment that Ezralow and/or the City and the
15
numbers as opposed —
16 Redevelopment Agency will have to be involved in to buy out
16
THE WITNESS: I don'trefer to them by the
17 the lease?
17
numbers. I call The Crossings "Specific Plan," so if you
18 A. No, our — if that's the case, which, again,
18
can show me what you're referring to, then I can —
19 that's what we refer to the attorneys on that side to
19
BY MR. TUCHMAN:
20 argue. We don't anticipate that that would be a risk that
20
Q. Well, the original plan— the original SP-12,
21 the Redevelopment Agency would be taking. So we've got a
21
which was submitted, had an exhibit which referred to
22 cap on how much money we might put in the project, and, you
22
existing anchors and tenants and the existing anchors had
23 know, if the development of the center' costs them more as a
23
82,000 square feet, which was Mervyn's only, and clearly
24 developer, then they're out-of-pocket for it
24
Burlington was to be demolished under the scenario under
25 Q. So the City, in terms of any buyout of the
25
the SP-12. I'm trying to find out if you, in the Economic
149
151
1
Burlington lease, recognizes that it cannot — the City or
1
Development Department, know anything about that?
2
the Redevelopment Agency cannot commit to a certain dollar
2
MR. SHIPOW: Objection. Mischaracterizes the
3
amount, but if it exceeds a certain dollar amount, it's the
3
document. The document speaks for itself.
4
responsibility of the owner?
4
MR. TEPPER: If you want to see a document, you
5
MR. SHIPOW: Objection. Calls for speculation.
5
might wish to look at it.
6
Ambiguous.
6
THE WITNESS: I'm sorry. I just don't understand
7
THE WITNESS: Our transaction that we're
7
the difference in your mind between SP-12 and SP-13.
8
currently negotiating makes no assumptions as to those
8
BY MR. TUCHMAN:
9
kinds of costs, and if those are costs that are not in the
9
Q. SP-12 was submitted —
10
Pro Forma now and we've capped our liability to a dollar
10
A. Draft 12, are you talking about?
11
amount, then that's the developer's cost, so we're not at
11
Q. We've never gotten a straight answer on this.
12
risk for any of that.
12
MR. SHIPOW: Objection. Argumentative.
13
BY MR. TUCHMAN:
13
BY MR. TUCHMAN:
14
Q. And, of course, one of the reasons for capping
14
Q. It was called SP-12, and it was prepared on
15
your commitment is because you want to know the full limit
15
March 20th, 2000, submitted to the Planning Department, not
16
of your commitment and you don't want the tax payers to
16
the EDD, on March the 30th, we believe. In it there is an
17
have some unending commitment? .
17
exhibit, Exhibit 4, which clearly refers to existing
18
A. It's good public policy to be able to know
18
tenants to remain, and it has 82,000 square feet only,
19
certainly what our obligations are and where that limit
19
referring to Mervyn's. I'm asking you if you know anything
20
ends, and it's also to a great degree driven by how much
20
about that.
21
public revenue is generated by the project A portion of
21
MR. SHIPOW: Objection. Mischaracterizes the
22
that might be committed back. There's also a finite cap.
22
document. The document speaks for itself. It's
23
Q. How much has been budgeted for litigation?
23
misleading. The question assumes that a particular draft
24-
A. I don't know.
24
was the -- was SP-12, and that is not the case. It was
25
MR. SHIPOW: Objection. May call for —
25
simply an iteration.
P6111
152 -
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DAVID BIGGS, 07.25.00
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THE WITNESS: Yeah, I think when you're referring
to SP-12 and SP-13, they may have been numbered, but when I
was reviewing the drafts of the specific plan, I wasn't
cognizant of them being 12 versus 13, and there were
different iterations. When I reviewed those on the basis
of my understanding that Ezralow had the right of
relocation and we're talking about —
BY MR. TUCHMAN:
Q., Ezralow.
A. Yeah, Ezralow under the lease had the right of
relocation, that those tables weren't material. And to the
extent they talked about keeping Burlington, for example,
also the same thing with Ward's. Earlier on in my
discussion with Ward's where they talked about selling
their property to then Macerich, downsizing to a much
smaller building, so Burlington only occupies one and a
half doors of a three-story building. At that point le
time, Ezralow was talking about moving to a mach smaller
building. So I didn't view — you're trying to read the
specific plan to mean Burlington was precluded or included,
they were purely illustrative examples of how the scope of
development might play oat
Q. So were you aware of this chart or were you not
aware of it?
25 A. I was aware of the charts daring the various
10
11
12
13
14
15
16
17
18
19
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25-
153
iterations, yes.
Q. Okay. Now —
A. And they didn't mean what you interpreted them to
mean. That's my understanding of how the City was
proposing it.
Q. Okay. Thank you.
A. Well, you asked a question about it, so —
Q. There was a meeting on April 13th, 2000. It's
call "The Crossings at Huntington Project Meeting Agenda."
Do you remember that meeting?
A. No, not if it was a Planning Department meeting.
I go to some of those, but not all of those.
Q. What determines whether you go to such a meeting
or not?
A. My schedules, the issues being discussed, and my
level of involvement with the project.
Q. Do you know what the purpose of the meeting on
April 13th, 2000, was?
A. Not that I can recall.
MR. TUCHMAN: Let met ask the reporter to mark
for identification as Exhibit 13 —
MR. SHIPOW: Yes.
MR. TUCHMAN: Thank you.
154
1 (Plaintiffs Exhibit 13 was marked
2 for identification by the court .
3 reporter and is attached hereto.)
4 BY MR. TUCHMAN:
5 Q. It's Item 9 of the production. And for the
6 record, this is a meeting dated April 13, 2000,
7 Administration Department, there's an outline, and then the
8 second page is "Crossings Meetings, Sign -In." That's your
9 writing there, the sixth line or so; is that right?
10 A. Yeah.
11 Q. And you attended this meeting?
12 A. I mast have.
13 Q. Okay. I want you to take a look at the Minutes,
14 please, which are attached, and there's about four pages of
15 them, and see if this refreshes your recollection with
16 respect to what occurred at this meeting. The date of the
17 Minutes are April 20th, 2000.
18 A. Okay. I've reviewed them.
19 Q. Do you recognize these Minutes? Have you ever
20 seen them before?
21 A. I don't recalL
22 Q. Do you know if Burlington Coat Factory was
23 discussed at the meeting of April 20th, 2000?
24 A. I don't know.
25 Q. Do you know why Burlington Coat Factory was not
155
given notice that this meeting was taking place?
A. Well, I don't notice internal staff meetings or
meetings with applicants. It's not a required public
meeting.
5 . Q. Well, why were members of Ezralow present and
6 EDAW?
7 A. Well, EDAW was the consultant that was doing the
8 work on the specific plan and Ezralow was the organization
9 that was coordinating the production of the specific plan
10 for consideration by the City.
11 Q. Is there a reason that Burlington Coat Factory
12 was not invited to this meeting?
13 A. Again, these aren't meetings to which we — these
14 aren't quote, unquote, "public" or "noticed" meetings where
15 we didn't — we don't invite — we didn't invite any other
16 parties that might have an interest in the specific plan to.
17 this meeting. Their opportunity to input comes primarily
18 through the public hearing process.
19 Q. This was not a closed session; am I correct?
20 A. It's not — it's not a meeting.
21 MR. TEPPER: Hold on. Closed session? Are you
22 referring to a City Council meeting or a Planning
23 Commission meeting at which there's a closed session of the
24 Ralph & Brown Act? Or what kind of closed session are you
25 referring to?
156
39 (Pages 153 to 156)
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A Veritext Company- 800.649.8787 -
I MR. TUCHMAN: I think that's what you just said.
1
2 MR. TEPPER: Well, is this a City Council meeting
2
3 that you`re referring to?
3
4 MR. TUC O AN: I'm asking if this April 13 meeting
4
5 was a closed session?
5
6 MR. TEPPER: Well, I'm trying to establish
6
7 whether or not you're talking about a closed session of a
7
8 public meeting or City Council meeting or Planning
8
9 meeting. I'm really confused as to the nature of the
9
10 question.
10
11 MR. TUCHMAN: I understand you're confused.
11
12 BY MR. TUCHMAN:
12
13 Q. You can answer the question.
13
14 MR. TEPPER: No, you can't, if you don't --
14
15 THE WITNESS: It only applies to meetings of the
15
16 legislative body. Meetings with staff or applicants are
16
17 not public meetings.
17
18 BY MR. TUCHMAN:
18
19 Q. Okay. So this was not a closed session?
19
20 A. This was not a closed session, no. It does not
20
21 contain a meeting of the legislative body. I appreciate
21
22 your trying to help me.
22
23 A. No, you don't, but that's all right.
23
24 Q. Well, now, do you know why the sentence in the
24
25 last -- page 1 of the memo, it says, "A memo will be sent
25
157
1
to City Council with Howard Zelefsky's signature
1
2
anticipating that only one Planning Commission public
2
3
hearing will be necessary for the approval of the
3
4
document"?
4
5
MR. TEPPER: What page are you on?
5
6
MR. TUCHMAN: Page 1 of the meeting Minutes.
6
7
This page here.
7
8
THE WITNESS: No, I don't. Howard could probably
8
9
respond more specifically. I think it was just
9
10
to -- the Council wanted to see the specific plan for them
10
11
as quickly as possible. So I think it was just really
11
12
setting forth that expectation of the Planning Commission.
12
13
BY MR. TUCHMAN: -
13
14
Q. Isal that unusual that there would be just one
14
15
Planning Commission public hearing?
15
16
A. No, most projects are done in one Planning
16
17
Commission public hearing.
17
18
Q. When was the last time that happened in one
18
19
Planning Commission?
19
20
A. On a — on a project?
20
21
Q. Yes.
21
22
A. You can look at the last Planning Commission and
22
23
most public hearings were conducted in a single meeting. I
23
24
would say it's actually the rule rather than the
24
25
exception. Howard can give you a better indication.
25
158
DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
Q. Now, it says, "The Planning Commission"— well
ask him. Thank you. "The Planning Commission public
hearing will be held on June U." "The City Council public
hearing will be held on July 5."
In your experience in the last five years as the
head of the Economic Development Department and here on
behalf of the Person Most Knowledgeable of the
Redevelopment Agency, would you say that's rather quick
action?
A. No, we're usually trying to move projects ahead
in that timely of a manner.
Q. Now, with respect to study sessions, do you give
notice to the public that there are study sessions or is
that also you don't give notice?
A. No more than regular posting of the agenda.
That's the only notice you have to give with regard to
public hearing items. I assume you're calling about study
sessions with the legislative body?
Q. That's what a study session is, isn't it?
A. Yes, I just want to make sure we're using the
same terms
Q. Now, do you know who prepared — who typed up
these Minutes?
A. No. Let's see. It looks like someone 6vm EDAW
did because it says it's "From EDAW."
159
Q. Do you know why EDAW typed up the Minutes as
opposed to someone inside the City?
A. Typically, when we have a consultant from EDAW
doing — we basically hire consultants as an extension of
staff, and they usually produce all those activities as if
they were a staff person.
Q. Do you recognize this format with the bullet
points and this font as EDAW-style documents?
A. I don't know one way or the other.
Q. The way you could tell it was EDAW was by the
computer -generated marker at the bottom of the pages?
A. No. If you look at the cover sheet, it says,
"EDAW. Fax transmission from" — "to the project team from
EDAW," and it was the cover sheet to the attached Minutes
Q. So Jayna and Alia are from EDAW; is that right?
A. Yes
Q. When you reviewed these Minutes, did you find
anything incorrect with them?
A. I don't recall specifically reviewing the Minutes
Q. Do you have anything in your file where you
marked them up and sent back something corrected in the
Minutes?
A. If I kept them in my file, they would have been
produced.
Q. Okay. Thank you.
160-
40 (Pages 157 to 160)
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
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MR. SHIPOW: Are we going to take a lunch break
at some point?
MR. TUCHMAN: I'll do whatever you guys want.
MR. SHIPOW: How much longer do you expect to go
with Mr. Biggs?
MR. TUCHMAN: Well, since he's the PMK, I would
say another couple of hours. I think the reporter probably
needs a lunch break.
MR. SHIPOW: So do I. But you have someone
scheduled for 1:00 o'clock.
MR. TUCHMAN: Silver. 1:00 or 1:30?
MR. TEPPER: 1:00.
MR. TUCHMAN: I suggest we take a lunch break and
come back, and I think we can finish with him in a couple
of hours and do Silver or bring him back and do Silver.
MR. TEPPER: I think we ought to bring him back.
MR. TUCHMAN: That's fine with me.
MR. TEPPER: Silver needs to —
MR. TUCHMAN: -- get in and get out.
MR. TEPPER: Yeah.
MR. TUCHN AN: Okay.
THE WITNESS: That's fine. I can do that. III
just have to be on jury duty tomorrow.
MR. TEPPER: Yeah, you could.
MR. SHIPOW: Okay. So are we going to take a
161
break now? Ill take a break now. So —
MR. TUCHMAN: So should we d9 a stip for him now?
Is he coming back tomorrow, the next day?
MR. TEPPER: It's kind of subject to what he
finds out tonight at 5:00 o'clock —
MR. TUCHMAN: That's fine. Then I propose
that --
MR. TEPPER: — and what his schedule is
otherwise. We have Gus Duran in the morning.
MR. TUCHMAN: Yes.
MR. TEPPER: Tomorrow is Wednesday. I can't meet
tomorrow afternoon. I have a deposition tomorrow.
THE WITNESS: Okay. I can come back at 2:00
tomorrow, if you re doing Gus in the morning.
Have you got Howard scheduled yet?
MR. TUCHMAN: He's out oftown, I think.
MIL TEPPER: He's out of town till Wednesday, I
assume+ -
THE WrI MESS: Hawaii -
MR. SHIPOW: Do we need all this on the record?
MR. TUCHMAN: Some of it we did.
MR. SHIPOW: Why don't we go off the record and
talk about scheduling.
MR. TUCHMAN: Okay.
(A discussion was held off the record.)
162
1 MR. TUCHMAN: Back on the record.
2 Mr. Biggs has kindly consulted with his calendar
3 and well reconvene this deposition at 2:00 o'clock on
4 Friday, July 28th, here. I usually like to put a slip for
5 each portion of the depo, so what III do is —
6 MR. SHIPOW: It's your depo, whatever you want to
7 do.
8 MR. TUCHMAN: Thank you. Ill propose the
9 reporter will be relieved of her duty under the Code with
10 respect to maintaining the original and obtaining
11 signature; that the transcript be sent to Mr. Biggs, care
12 of Mr. Tepper at Mr. Kane's office with a cover letter
13 indicating its transmittal and a CCed letter to myself and
14 Mr. Shipow; that Mr. Biggs will have 30 days after receipt
15 of the transcript by Mr. Tepper to sign it, review it under
16 penalty of perjury. Mr. Tepper will then, after the 30-day
17 period, provide me with — and Mr. Shipow — of the
18 corrections and the fact that the signature — the
19 transcript has been signed, and Mr. Tepper will provide me
20 with the original transcript in this matter wherein III
21 make it available upon any reasonable request at any
22 proceeding, trial, or arbitration in this matter. In the
23 event the original is not signed under penalty of perjury
24 and corrected, then an unsigned, certified copy -will. be_
25 useful for all appropriate purposes in lieu of that
163
1 original. And then well see Mr. Biggs back here Friday at
2 2:00 o'clock.
3 Okay, Mr. Biggs?
4 THE WITNESS: Okay.
5 MR. TUCHMAN: So stipulated, Mr. Tepper?
6 MR. TEPPER: Sure.
7 MR. SHIPOW: So stipulated.
8
9 (Whereupon the deposition adjourned at 12:27 p.m.)
10
it
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absence 37:21
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across 73:9,11
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adjustments 43:15
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adopt 24:14
adopted 101:7
adoption 23:10
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advanced 148:15
advice 51:18 59:6
84:10,15
advisor 57:5
advisory 33:19 56:25
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affordability 16:2
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agendas 146:18
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APPEARANCES
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appraiser 66:17
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appreciate 108:4
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approach 76:1
105:18 114:6
_125:10 137:3
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07.25.00
13URLINGTON V. HUNTINGTON CENTER
approached 83:24
approaches, 114:6
approaching 41:15
appropriate 105:12
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approval 40:3,7 49:9
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96:22104:5
106:17 107:14
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 166
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believe 7:11 18:2
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capacity 115:7
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capital 56:25 57:3,4
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capitalization 60:19
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cash 43:25
categories 31:12
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
category 32:5
cause 25:15 107:10
115:8 133:24
caused 72:3
caution 59:7
CC 98:5
CCed 112:18,21
163:13
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certificate 13:9
certified 2:20 6:8
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change 93:13,15
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96:13,17 103:6
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characterize 95:1
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chart 153:23
charts 123:2 124:11
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circumstances 31:11
74:14 75:13 85:5
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coincidental 80:11
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company 1:10,11,11
1:11 2:10,11,11,11
41:10,14 89:7
102:24 103:1
104:4 105:12
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07.25.00:
BURLINGTON V. HUNTINGTON CENTER
Company's 41:13-
compared 136:1
comparing 71:12
75:23 121:23
125:24
comparison 71:7
75:21 76:2 119:9
121:20 125:23
Compel 8:14121:6
121:14 142:5
144:25
complete 49:18
69:23,25 70:2
104:20
completed 11:18
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component 151:2
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Compound 63:5
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concentration 13:4
concern 115:9 149:7
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concerning 81:2 87:9
concessions 137:10
conclude 146:5
concluded 29:18
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conclusion 31:15
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condemn 46:11
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condemnation 83:1
83:3
condemned 66:3
condition 62:22,24
conduct 66:8; .
conducted .158:23'
confer 6:19 7:25
conference 56:14
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consulted 163:2
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corporation 1:6 2:6
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
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7ILIO.& ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
` DAVID BIGGS, 07.25.OW-
BURLINGTON V. HUNTINGTON CENTER
eight 50:11-
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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130:21,23 131:14
133:16 134:22
135:3,5,9,17 138:1
138:11 139:2
142:18,18 143:23
145:16 159:24,25
160:3,13,13,15
front 28:3 30:6 34:22
34:24 42:16 43:21
44:1 52:23
full 150:15
Fullerton 12:23 13:2
13:22
full-time 13:20,21
14:5
fund 16:5
funds 68:12126:25
further 149:14
future 47:13,16
. 48:12 77:17
101:12 138:8,8
F-a-u-l-a-n-d 23:20
F-r-e-h-o-1-m 33:16
gain 128:9,13
gap 43:19,22,23 60:3
60:5,6,9,11,23 62:3
62:4,5 76:16
119:21 122:5
127:1,2 138:5,7
Gary 41:10 56:22
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Gary's 56:22
gate 77:18
gave 44:25 118:2
121:10
general35:22 40:15
46:12 47:11,15
101:1,6,15,17,25
114:6 120:25
121:9 122:12
136:11
generality 8:25
generally 17:11
47:19 48:14 49:25
54:15 60:19 70:21
115:1 121:2 147:2
generated 65:13
106:17 122:11
146:19 148:7
150:21
generates 71:24 72:5
generic 90:19
generically 7:4,15,18
geographic 24:13
102:1
Gerald 113:2
gets 60:12
getting 27:14 40:15
49:16,16 128:23
give 8:21 11:22
34:16 49:25 73:13
80:24 158:25
159:12,14,16
given 24:2 43:19
84:10 95:16 139:2
142:4 156:1
giving 12:13 60:20
go 6:16 8:9 11:8
12:15 14:13 15:3
18:18 26:9 32:15
36:7 40:14 52:20
65:24 68:11 69:8
69:18 74:19 75:20
79:7,18,21 86:5
87:25 95:13
103:13 105:10
116:11 117:12,20
122:19 124:5
135:19 154:12,13
161:4 162:22
goal 36:18 71:23
139:3
goals 17:13 73:4
116:23
goes 16:5 21:1 40:4
45:16 68:10 144:8
going 7:22,22 10:23
11:1,5,8 12:4
24:19 26:19 39:2
41:2142:17 43:9
46:10 47:24 52:8
52:15 54:19 64:24
68:5,6 73:11 79:15
79:24 81:21 83:10
89:11 97:15
103:13 107:7
115:24 120:12
121:19 124:6 .
129:1 132:6 133:8
133:14 136:15,25
138:13 143:15
145:14 149:10
161:1,25
Goldenwest 20:23
gone 134:15
good 7:20 11:8 26:18
49:15 52:17 66:5
68:9104:20
116:10138:24
145:7 146:8,13,18
150:18
gotten 49:18 152:11
govern 101:12
Government 80:24
Governmental 14:14
graduated 12:17
13:1,22
Grant 15:2416:4
granted 108:2,19
Gray 4:22 41:10
56:2167:14 81:2
118:13 121:10
145:25
great 150:20
greater 24:2.
Greenberg 132:14
gross 119:1
Group 33:19,20,25
guess 36:20 69:2
129:11 146:12
guide 27:13
guidelines 21:8
101:11
Gus 19:1,22 26:3
66:18 112:22
121:2 132:7,9
140:23 142:10,14
146:1,12 148:7
162:9,14
Gustavo 143:23
guys 26:20 161:3
g-a-a-p 60:9
g-a-p 60:9,10
half 10:7 153:17
Hall 56:13
halt 108:19,21
hand 24:1
Hang 41:2 52:11
happen 68:5,7 74:9
77:19 82:22 89:21
happened 8:6 89:21
121:13 158:18
happens 36:18
Page 171
happy 55:5 142:21
hats 130:19
having 6:7 28:3
57:24 74:7 78:20
Hawaii 162:19
head 23:11,12 68:11
159:6
headed 89:25
hear 22:2
hearing 36:1 66:7
69:24,24 74:20
110:15 118:8
156:18 158:3,15,17
159:3,4,17
hearings 66:8 158:23
hears 66:9
held 13:15 15:6
107:25 159:3,4
162:25
help 16:15 64:15
65:1,5 99:10
157:22
helpful65:23
helping 22:24 44:20
83:15
helps 65:9
her 19:4,14,15 57:1
163:9
Herb 23:20 114:10
hereto 25:3,11 27:4
38:7 52:14 80:19
97:20 104:9
133:20 143:20
145:19 147:11
155:3
high 12:16,17 103:2
142:22,24 143:1
higher 23:24 102:3,9
122:23
highly 11:25
high -quality 71:23
Hill 14:20,22 15:1
Hilton 127:7
him 20:1 22:1 41:14
50:25 51:3,4 62:9
92:7 93:5,15 95:2
103:20 106:15
113:9 115:25
121:11 130:24
159:2 161:14,15,16
162:2
hire 160:4
hired 57:9,1163:9
63:13 77:23
141:10,12,13
historically 105:24
history 13:18 129:15
Hokuld 131:19
hold 7:21 13:12
17:15 81:24 88:11
94:2 95:2 101:24
121:16 156:21
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Holly 77:20,23 102:8
118:14,18
Holtz 19:121:19
home 47:11
hope 70:8
hopeful 42:18
hopefully 149:4
hours 49:15 161:7,15
housing 15:23,25
16:1 19:22
Howard 23:12,15,18
26:17 45:24 94:9
94:15 106:8 114:9
114:24 115:3
158:1,8,25 162:15
Howard's 23:13
Hughes 50:4,7,13,18
56:7,7,9,16,20
106:16 118:13
hundred 151:5
hundreds 114:13
huntington 1:5,9 2:5
2:9 9:8,19 10:1
15:4,7,16 17:3
18:1,8,12 19:11,17
19:20 20:9,17,25
21:5,11,12,17,19
21:21,23 22:10,17
24:6,12 27:18,20
28:8 29:22 30:8,18
36:18 37:6 38:11
39:15,18 41:7
43:17 45:8,9 46:25
58:19 59:13,18
60:25 62:2164:8
65:19 68:2 70:18
70:21,24 71:6,6,11
71:16 72:24 73:18
75:1,17,20 77:17
79:12,24 82:13
83:5 87:21,23
89:10 90:10 95:6
95:18 96:6 98:8
99:6 101:1,3
104:21 105:25,
109:2,7 116:21
123:11 129:12.
133:16136:24
137:6,17 144:5 -
146:14 148:19.
154:9�
hurt 111:14
H-o-k-u-k-i 131:19
H-o-1-1-y 77:23
ICSC 73:7
idea 98:19141:1
ideas 76:3
identification 24:20
25:2,10 26:20 27:3
38:6 52:9,13 79:16
80:18 97:16,19
104:8 133:9,15,19
143:16,19 145:15
145:18 147:7,10
154:21 155:2
identified 122:13
130:1
identify 43:18
illustrative 65:17
124:11 135:13
153:21
imagine 40:1,17
77:17 81:17
136:16
imminent 46:18
47:20
improper 110:18
improvement 13:10
30:7
INC 1:6 2:6
Incidentally 105:2
include 123:22
included 26:9 33:12
66:18 101:6
123:19 124:1
130:2153:20
includes 92:7
including 47:19
inclusive 1:12 2:12
income 60:18,20,22
incorporate 21:6
50:2
incorporated 107:14
incorrect 140:17
160:18 .
increment 65:16
incurring 68:13
independent 62:19
INDEX 4:1
indicated 67:5 82:15
129:2 133:2
indicating 42:14
163:13
indication 73:13
93:7 118:2 158:25
individual 30:6
151:7
industria,1402:5
industry 57:24
information 5:4 8:22
33:12 44:6 45:2
46:17 58:2,4,5,6,16
59:2161:5 '62:8
65:172:6 78:5
128:3 142:18
informed 41:14
initially 140:12
input 74:20156:17
inside 160:2
instance 74:12 129:5
instigators 54:16
INSTRUCTED 5:9
instructing 62:9
instructions 80:24
intent 117:6,9
137:13,14,17
interest 22:23 36:21
53:21,23 60:17
64:23 74:13 85:17
86:24 96:1 107:12
107:17 111:25
126:7,11 129:8
134:17 135:16,18
136:21 138:25
139:12 156:16
interested 49:20
interests 22:2 46:15
86:2,25
interject 94:3
intern 19:4,7 22:14
internal 156:2
International 45:7
interpreted 124:2.
154:3
interviewing 127:16
Inter -Department
4:18
introduced 41:10
investment 60:21
invite 156:15,15
invited 156:12
involved 11:6 53:17
54:12,22 65:2
138:6 145:2
149:16
involvement 154:16
involves 10:15,21
involving 56:2146:6
in -camera 8:12,15
Irvine 12:2513:6,20
issue 111:8
issued 13:15
issues 8:18 24:1,2,3
154:15
item 32:12 33:14
34:8,8 39:5,14
40:2,5,10 76:9
77:15 104:6,11,15
104:19 121:18
128:5 146:22
147:6 155:5
items 6:13 32:11
104:11 119:4,12
121:3 127:15,19
159:17
iteration 152:25
iterations 122:2
153:5 154:1
I's 111:15 116:5.
i.e 119:20
James 23:18 50:4,6
50:13,18 56:16
114:9 119:12
Jane 23:18114:9
January 70:20 132:1
Jayna 132:11 160:15
Jerry 113:3,7
Jim 19:1,2 21:16,23
21:24 22:3 71:3,4
78:3 81:1 118:11
118:13 119:2
120:24
Jim's 122:7
job 13:20,21 14:5,8
17:22
jobs 115:7
John 50:22,24
joint 30:13,13.
Jon 131:21
Joyce 19:3 22:12
JR 3:14
Juge 19:4
Julian 40:22 41:1,25
42:5
july 1:20 2:23 6:1
74:24111:8
127:19159:4
163:4
June 13:22 28:169:6
69:19 95:17 96:14
98:18 101:5
102:14,20107:7
111:7112:4,6,18
113:16,17,20
115:14117:6
124:18 142:19
159:3
jury 103:10161:23
just 6:16,19 7:25
11:11 19:3,6 21:13
24:2134:1140:11
40:15 46:16 60:7
62:18 67:20 70:3
70:15 76:4,13-
77:16 80:11,12
82:3,6 89:19,20
91:17 94:18
103:21 104:12
105:17 107:23
111:22,24 115:15
118:3,18 119:8
121:22 122:13
123:22127:1,22'
129:17,21 135:13
136:11 145:7
152:6 157:1 158:9
158:11,14159:20
161:23
J-a-y-n-a 132:11
J-o-n 131:21
J-u-g-e 19:5
J-u-1-i-a-n 41:1
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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Page 172
kane 3:13 55:23 56:1
56:159:6 76:18
81:1 94:6,6 96:14
96:21 106:12,19
118:11 120:3,14
121:1,4,20 140:24
Kane's 77:7 96:21
163:12
keen 107:12
keep 16:15 142:8,10
142:12
keeper131:13
keeping 153:12
keeps 130:23 142:10
Ked 132:17
kept 121:4 160:23
Keyser 57:11,12,17
57:22 59:21,22,23
61:2162:17 69:21
71:4 119:12
Khara 132:22
kickoff 21:14
kind 24:4 58:4 61:14
87:23 88:3 132:15
156:24.162:4
kindly 163:2
kinds 44:22 46:17
73:13 83:20
147:16 150:9
knew 34:3 43:8
106:20 107:9
108:9,18 112:8
knowing 57:24
knowledge 30:14
31:12 41:17 57:25
59:20 64:3 75:19
96:8 97:10 130:2
knowledgeable
24:16 29:9 30:17
46:23 61:172:15
83:2 109:11,14,16
148:18 159:7
knows 112:16
krsto 3:4 6:18
K-e-i-1132:17
K-e-y-s-e-r 57:13
K-h-a-r-a 132:22
L 3:3 143:23
La 71:7,10,11,13
Lack 28:14 30:21
138:14
Laird 41:13 42:15
lamb 19:2 21:23
Lamb's 22:3
land 60:16 64:11
language 149:3,3
large 30:7101:25
102:6
last 10:10,12 19:4
27:24 32:12 56:22
128:10 147:22
148:5 151:8
157:25 158:18,22
159:5
lasted 35:6
Lastly 8:21
later 111:7 131:5
Laura 18:25 20:7,9
law 2:23 6:25 11:15
27:21 31:6 107:24
lead 23:5,6 120:23
learned 141:5
lease 46:15 58:5,20
58:22,23,25,25
59:4 63:3 64:18,20
81:3,5 85:13,24
86:7,11 87:9,11
141:2,5 146:8
148:22 149:14,17
150:1 153:10
leasehold 63:1 65:5
65:15 66:12 82:10
134:17
leases 44:25
leasing 21:25
least 69:24 143:1
leave 149:1
leaving 9:12,14,18
13:6
led 65:24
legal 31:14 39:11
63:3 74:18 83:13
89:4,14,19,21
117:3
legalities 113:22
legally 116:1 117:4
legend 98:7
legislative 31:7
157:16,21 159:18
lending 45:3,5
length 69:11
lessees 64:22
let 19:10 21:14 51:12
93:5 95:2 103:20
113:15 143:16
154:20
letter 4:20,21,22
133:15 134:5,7
140:19 143:22
145:15 146:1,3,7,7
163:12,13
letterhead 144:10
letters 87:8 144:10
let's 8:8 9:1 18:18
23:4 32:11 40:2
52:17,20 75:20
77:25 78:8 80:16
84:13,14 88:20
102:23 103:7
105:10 108:5
125:12 127:15
159:24
level 23:15 93:20
102:9 118:2 127:3
154:16
liability 1:9,10,11
2:9,10,11 150:10
liaisons 114:11
license 13:13,16
licenses 13:12,15
lieu 163:25
like 8:6 23:1,1,4,10
30:6 37:14 41:2
42:12 45:2 49:10
53:25 55:4 58:11
65:9 80:10 82:15
90:2 95:1 116:15
118:3 131:10
133:3 134:11,13
147:1 151:11
159:24 163:4
limit 136:11 150:15
150:19
limited 1:9,10,11 2:9
2:10,11 58:8
Linda 18:19 19:10
line 5:10 65:10
122:21 155:9
list 8:10 11:11 26:10
26:21 47:11
134:16 135:13
listed 19:6 27:7,10
30:25
listing 67:3
lists 45:1
litigation 11:7 31:21
32:3,9 52:6 53:14
53:17 54:16,16,22
84:10,13 100:13,14
100:18 107:6
112:7,9 115:8
116:14 117:7
121:5 128:12
141:8 142:18
144:21 150:23
151:3,5,8
litigations 61:15
Gtigation/Petition
144:25 ---
litigative 84:3
litigious 111:13
116:1
little 62:1
Livengood 124:15,25
LLC 27:18
LLP 3:8
locate 45:8
located 2:24 14:22
17:5 81:3
locating 73:14
log 6:11,22,25 8:22
117:13 130:1
long 14:7,8,16 15:1
34:10 35:5 43:12
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
69:11 112:17
120:4
longer 59:2 69:16
87:6 134:16 161:4
long-term 58:25
look 20:22 25:7
32:11,15 38:9
40:24 41:147:9,9
47:10 58:12 60:13
60:19 64:15 69:2
70:9 71:5 77:25
80:16,22 111:25
122:19,21 125:12
126:2 127:1
142:21 147:1
152:5 155:13
158:22 160:12
looked 64:14 72:9
.76:14,15
looking 37:17 38:10
39:1,3,7 58:13,14
58:14 65:20 71:6,9
77:15 81:19 85:11
103:18 120:12
121:18 125:18
146:25
looks 41:2 71:17
159:24
Lord 112:16
Los 3:5,10,15 6:2
9:16
loss 142:17
lot 49:14 74:8
lots 52:5
lower 122:24
Luann 18:19,24
19:15
lunch 161:1,8,13
Lynn 33:16
L-a-i-r-d 41:13
L-u-a-n-n 18:24
L-y-n-n 33:16
Maberry 132:17
Macerich 36:8,12,15
36:19,24 37:6
39:25 43:8,10
45:16 46:4 58:15
64:12 71:7,10,12
71:14 79:6,9 91:24
92:1 94:22 109:18
119:5,9 121:24
125:25 153:15
made 33:10 37:10,12
38:16 65:25 66:2,6
75:6 82:9 85:5,7,7
86:10 87:19 88:7
89:17 92:8 94:24
104:18 105:19,21
106:2 108:1,14
119:14 136:2
139:23
main 9:7 31:22 33:24
74:10 115:18
maintaining 163:10
major 64:22 65:7
70:22,23
majority 102:24
129:13 137:25
make 8:9 11:20 22:1
44:22 52:10 55:9'
60:12 66:4 74:17
74:18 81:22 97:17
103:20,21 104:5
107:22,22115:25
116:4,16,19,21
124:10 138:12
148:16 159:20
163:21
makes 111:24 141:14
150:8
making 49:2
mall 37:6 38:11,20
40:16 90:10 96:6
123:11 146:6
managed 71:11
management 13:11
manager 14:6,11,21.
14:24 15:1 17:16
19:23 20:16 22:4,5
22:7 23:6,6 56:24
mandate 124:13
148:13
manner 99:11
116:22159:11
many 10:6 34:6
42:15 49:19 50:6
50:12 56:6 77:1
96:20 125:13
135:12
map 102:12 109:4
March 51:12,13 53:6
54:10,20 56:4,6
58:17 84:8 85:1
103:7 104:4,22
105:12 133:16,25
137:13,18 143:9,22
144:6 145:15,24
152:15,16
Maria 127:8
mark 3:9 24:19
26:20 38:2 51:9
52.9 79:15 97:16
100:9 118:16
133:9,15 143:16
145:15 147:6
154:20
marked 4:9 25:1,9
27:2 38:5 52:12
80:17 97:18 104:7
133:18 143:18
145:17 147:9
155:1 160:21
Page 173
marker 160:11
market 33:21 45:7,9
57:22
marketplace 58:1
60:3
Mark's 118:18
married 127:14
Marston 57:11,12,13
57:17,22 59:21,22
59:23 61:21 62:17
69:21 71:4 119:13
master 30:11
Master's 12:24
material 55:20 93:3
93:5,7 153:11
materialize 119:22
materials 45:9 135:1
math 60:15
matter 21:13 53:23
63:20 67:19 84:17
85:16 89:20,21
90:19 124:4
163:20,22
matters 144:7
may 8:19.19:18
43:23 44:5 47:21
47:2148:13,13
61:4 68:12,12
70:24 73:3,3 75:5
75:5,12 78:17 80:9
81:22 83:12 84:11
84:11 86:16 90:3
94:2 106:22,24
114:12 139:13,19
140:23 150:25
153:2
maybe 66:23,23 77:2
108:20,20 118:17
120:20,20,20 124:6
137:11 .
Mayor 120:21
McDonald's 102:4
McFadden 21:2
mean 11:5 16:7,20
39:16 43:15 47:8
52:5 60:9 67:16
69:1 72:22 76:3,12
77:11 79:3 83:14
83:16 85:11 86:1
86:18 89:25
107:24 113:13
117:25 119:16
125:16 143:5
144:18 153:20
154:3,4
means 60:11 68:21
82:16 113:16
147:19 149:2
medication 12:12
meet 6:19 7:25 31:8
49:24 50:8,13,18
51:10 143:3
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07,25.00
BURLINGTON V. HUNTINGTON CENTER
144:15,20162:11
meeting 4:24 8:4,4,5
8:6 21:14 31:8,23
33:1 35:3,9,24
37:12 40:25 41:6
48:1,7 57:1,2
76:17 77:4,7 79:22
81:9,11,15 84:6,11
84:14,22,23,25
128:11 133:3
146:18 154:8,9,10
154:11,13,17 155:6
155:11,16,23.156:1
156:4,12,17,20,22
156:23157:2,4,8,8
157:9,21 158:6,23
meetings 33:1,8 50:8
50:10 56:11,12,16
56:19,19 82:4,7
84:18 131:24
132:6,7,7 133:1,4
155:8 156:2,3,13
156:14 157:15,16
157:17
meets 16:1 132:2
Melanie 80:25 87:4
member 38:18 40:22
41:25 42:5
members 39:11
41:11 42:16 156:5
memo 33:14,25 34:6
78:1,6,15 93:16,19
93:21 95:25 97:4
97:13,17,25 98:3
98:20,22 99:1,5,10
100:8,12,17 106:12
108:25 112:4,6,18
112:18,21 113:1,10
114:5,16 115:14,18'
124:18 147:22
148:6,8 157:25,25
memory 37:15 52:1
119:8
mentioned 45:11
70:24 126:14
147:14
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nothing 101:13
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notice 4:10,1124:20
25:6 69:22,23
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 174
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159:13,14,16
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noticing 36:2
November 43:5 44:4
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numbers 151:15,17
numerous 112:15
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objection 17:17
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obligates 11:15
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obtaining 163:10
obtuse 89:25
Obviously 93:6
occasion 56:11
Occasionally 50:5
occupies 153:16
occur 31:13 36:3
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One's 129:9
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130:4 138:25
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148:3 151:23
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127:24 141:19
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opinion 111:4
opportunity 156:17
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120:15,18 151:15
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option 65:22 67:15
79:13 136:4,23
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81:25 83:3,8,8,16
86:24,25 91:10
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134:7,11 143:10
147:25 148:10
149:7 156:15
160:9
others 134:4,6,16
142:7
otherwise 49:8 162:9
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
ought 161:16
ourselves 116:2
out 20:5,24 26:19
36:16 41:21 44:24
46:11 49:4,5 54:14
61:16 66:9 73:5
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111:25 112:4
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151:25 153:22
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119:18
outlines 78:11
outside 69:11,13
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12:15 21:2 26:9
40:11 43:23 77:19
88:20 142:2
overall 64:8,9 67:1
73:4 74:22 82:3
122:21
overexaggeration
142:25
own 21:1 23:25
25:22 72:5 79:5
91:21 119:15
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owners 30:6,12
47:19 74:2182:20
91:23
ownership 36:9
74:13 103:1
owner's 74:3
owner/developer
75:10
owner/developers
110:4
owns 102:25
o'clock 161:10 162:5
163:3 164:2-
package 33:12 44:11
page 4:2,8 5:10
34:13 38:9,10
40:25 41:1,2,12
53:2 70:10,10,17
77:25 78:8 80:21
147:22 148:5
155:8 157:25
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pages 1:10 34:6 38:4
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paragraph 102:23
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parcels 101:20
Pardon 69:17 111:17
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parts 140:1
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passing 70:25 94:8
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131:14,21 142:15
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Pickel 118:16,20,21
118:23,24
place 27:23 56:12,13
71:1 74:10 77:9
81:15 82:21 88:12
131:24 156:1
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07,25.00
BURLINGTON V. HUNTINGTON CENTER
plaintiff 1:7 2:7,20
3:2 6:7 '
Plaintiff's 4:9 25:1,9
27:2 38:5 52:12
80:17 97:18 104:7
133:18 143:18
145:17 147:9
155:1
plan 4:18 20:20 21:1
21:7 23:5,7,10
24:15 26:8 39:21
44:22 45:14,18
46:1,5,8 53:21
67:20,23 82:20
90:9,11,14,18 91:3
91:4,6,21,22,25
92:3,5,7,10,15,23
93:14 94:2196:1,6
99:11 101:1,2,10
101:15,16,17,19,23
101:24,24 102:2,4
102:7,11,16 105:15
107:11,12,16
108:16 109:5,18
110:6 114:7,19
115:17 117:11
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124:8,12 131:9,14
132:13 146:15,21
148:1,13,14 151:17
151:20153:3,20
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96:11 97:25 98:16
101:6 104:18
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158:16;19,22159:1
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plans 20:24,24 36:10,
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players 57:24
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processing 22:22
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promises 79:25
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46:15 47:19 49:1
64:15 65:15,16,20
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77:16 78:23 79:25
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 176
81:3,5 82:19,20
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86:12,25 87:10
88:16 90:6 91:23
101:4 102:6,6,7,24
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pros 65:2
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purchase 41:19
78:22 81:5 85:13
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81:3 87:9
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pursuant 4:13 6:12
6:21 24:14 25:19
80:23 128:20
pursue 78:22 116:14
put 8:2 26:1 40:5
43:25 104:11,11
111:1 115:16
121:16 127:22
149:22 163:4
puts 87:14
putting 81:24
P-i-c-k-e-1118:20
p.m 98:18 164:9
qualifications 32:13
32:14,20 33:8
38:21
qualified 125:8
139:14
quality 13:10 43:12
question 12:3,7
17:20 19:10 38:17
41:12,25 42:9,13
44:15 47:6 51:25
53:25 54:2,4,5
58:14 63:6 73:20
73:21,22 76:6 83:7
90:20 93:8 96:10
99:12,13,17,18,24
99:25 100:3,5,7,9
101:18 106:7
108:5,6,10,11
110:8,9,19,20,21
123:6 143:14
144:9 152:23
154:7 157:10,13
questions 7:23,24
10:20
quick 103:9 159:8
quickly 6:17 158:11
quite 50:8 64:14
113:3,7 128:23
quote 42:14 92:13
156:14
R 3:14
Rabe 71:3,4 81:1
118:11 119:2,12
120:24
Ralph 7:8 156:24
Random 106:20,21
range 126:24
rates 60:19
rather 8:17 158:24
159:8
ratification 115:17
Ray 15:14 17:7
24:10 81:1 93:10
94:7,13,13,14,15
94:17 98:1 106:1
reaction 124:23
read 16:1142:21,22
54:3,4,5 73:21,22
78:24,25 99:12,13
99:24,25 108:11
110:8,9 124:10,18
153:19
reading 87:1 124:16
ready 79:21 103:25
real 7:9 31:9,21 32:2
32:6 34:17 63:2,9
64:4 73:7 82:24
85:17 86:24 92:2
103:9
realize 42:11
realized 81:21
really 7:14 21:14
36:22 44:10 49:4
62:18 67:6,8 73:3
73:5 74:14 83:18
84:2,3 86:22 108:4
119:21 125:8
157:9 158:11
reason 12:8,10 37:9
53:19 84:21
111:15 156:11
reasonable 60:2,21
60:22 72:13,14
73:10 163:21
reasons 65:11 146:7
150:14
Rebecca 56:25
127:10
recall 10:15-11:5
18:5 26:7 27:25
28:2 32:19 33:2,4
. 34:6,7 35:7 37:8
37:16,24 38:24
40:14,20,23 44:19
48:4 49:21 50:14
50:16,20,24 51:6,8
53:22 54:23 55:11
55:13 56:5,8,17,22
59:5 67:18,25
77:22,24 78:17,18
79:18 81:10,17,18
84:9,24 85:6,10
86:3,5 87:16 93:25
94:17 96:18,24
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
97:3 98:4 100:22
104:23 105:1,8
106:18 107:1,3
110:25 111:3.23
112:5 113:4,5,6,8,8
113:21,24 115:2
120:7,9 122:16
124:17 125:15
132:16 135:12,19
141:3,8 142:3,6,20
143:14 144:13
146:10 154:19
155:21 160:19
receipt 163:14
receive 97:13 134:22
135:13,16,19
received 6:11 24:24
25:19 87:22 98:5
135:3,5,8,8,11,17
135:22 142:17
147:20
receiving 135:15
recent 64:12 82:23
128:5,6
recently 27:24 28:2
64:13 67:19 70:5
84:18 91:6 102:18
124:8
recess 52:19 103:15
133:13
recognize 70:10,12
97:22 118:18
133:22 143:24
144:2 145:21
155:19 160:7
recognizes 150:1
recollect 112:8
recollection 34:2
38:15 39:17 53:11
55:22 71:9 74:11
75:23 77:2,5 80:1
114:17 119:7,18
121:22 144:14
155:15
recommendations
141:15
reconvene 163:3
record 6:15 7:22 9:6
52:20 103:16
104:6 155:6
162:20,22,25 163:1
Recorded 86:2
records 33:13
recreate 36:7
recruitment 21:24
45:4 50:2
recruitments 45:5
redevelop 88:16
redeveloped 137:23
redeveloping 39:18
refer 39:3 45:8
109:24 126:3
136:6,19 149:19
151:16
reference 31:9 34:4
42:8 87:11 104:18
referrals 22:1 44:22
referred 41:25 42:12
83:5 104:6 151:21
referring 37:11,15
71:20 120:5
151:14,18 152:19
153:1 156:22,25
157:3
refers 34:25 152:17
reflected 25:14
reflects 45:19
refresh 37:15 38:15
52:1 144:14
refreshes 155:15
refreshing 119:8
refusing 100:5
regard 25:19 34:17
53:24 54:17 59:23
61:15,19 86:20
120:24 159:16
regarding 38:11 51:4
51:10 64:8 81:1
85:18 86:20 93:19
93:20 96:13
124:15
Registered 2:21
regular 70:15 121:10
159:15
regularly 113:3
132:3 133:3
regulations 102:3
rehab 23:9
rehouse 23:9
rejected 140:8
relate 47:13
related 19:19 66:13
96:4 100:15 131:9
relating 130:9
relationship 22:19
23:22 24:4,5 36:9
36:10 42:13 49:3
53:14 74:4 111:21
112:10 113:4
149:11
relative 41:18 43:5,7
48:19 61:8 62:22
75:16 89:9 121:5
130:22 141:21
relatively 60:15
relevance 7:13 89:4
89:15
relies 51:17
relieved 163:9
relocation 149:4
153:7,11
remain 75:9 152:18
remained 15:16
remaining 59:4
Page 177
remains 75:1,9
148:12
remember 11:3 19:3
37:21 42:10 55:5
56:3 94:5 113:5
154:10
reminded 129:17
removed 92:18
render 2 1: 10
renegotiating 70:5
renegotiation 69:20
rents 122:14,15,20
122:22
repay 43:23
repeat 16:10 73:20
101:18
report 61:24 62:14
62:17 69:22
141:24 142:2,3
reporter 2:21,21 6:8
16:12 24:19 25:3
25:11 26:19 27:4
38:7 42:23 52:9,14
54:3,6 73:23 79:1
79:15 80:19 91:16
97:20 99:14 100:1
104:9 108:12
110:10133:9,14,20
139:6 143:15,20
145:14,19 147:6,8
147:11 154:20
155:3 161:7 163:9
reports 19:24 62:19
65:13 69:25
141:20
represent 41:18
representatives
41:14 47:1 48:2
request 4:23 25:19
35:12 40:2,4,7,10
58:7 61:18 69:9
75:24 78:13 79:5
79:20 83:17 85:5
105:4 117:16
121:23 125:25
136:21 138:24
147:5 163:21
requested 5:4 16:12
42:23 54:3,6 73:23
78:14,19 79:1
84:14 85:1 99:14
100:1 108:12
110:10 119:9
135:2
requesting 40:12
78:16
require 75:15 86:23
148:23
required 36:1 66:8
100:25 108:1
156:3
requirement 31:22
JILIO &ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS 07.25.0 Q~ vx.
BURLINGTON V. HUNTINGTON CENTER -
110:12:
requirements:,16:2:
70:1 110:1 -
requires 59A,2'.
102:11.
reservations114:15-
residence 9:9
residential 102:9
resolution 35:21
66:9 87:15,16
resolve 48:15
resources 137:5
respect 21:1129:21
38:15 47:2148:11
155:16 159:12
163:10 .
respond 88:3 90:7'
116:15 158:9
responded 135:1,10
138:6 143:12
response 7:25 38:17
41:12 54:8 55:17
58:8 78:3 134:18
134:19,22,25 135:3
135:5 138:13,15
146:9
responses 135:8,14
135:15
responsibility 49:1
120:22150:4
responsible 15:21
22:6 47:24107:25
responsive 25:16
129:24131:6
139:16147:23,25.
restaurants 137:9-
restraining 95:8,17
99:6 100:14108:1-
restroom 133:11
results 81:23
retail 1:10 2:10
21:24 27:17 45:4;5
45:6,10 57:24,25.
72:4
retailer 72:13,17
73:10
retailers 45:8
retained 62:M--,, -
retains 10T.1 ..
retentioQ 16:8°
retroactively ,111:8a
return 60:21:--
revenue 59:25 77:14;-
77:16 78:4118:24-
127:2 150:21
revenues 43:25 60:2-
65:10 71:24 76:15
_ 122:9,11 138:8,9-
review 4:23 8:12
11:9,19 21:8 22:25
23:3,7,8 40:14
52:25 55:7 66:17
82:4112:3 147:4
147:17 148:3
163:15
reviewed 8:8153:5
155:18 160:17
reviewing 131:14 -
153:3 160:19
reviews 122:3
Revised 78:1,6
revitalization 16:24
116:21 -
revitalize 24:14
re -incorporate 67:6"
67:11
RFP 135:2136:5,8,9
136:17
RFPs 90:2'
Richard 19:4
rid 82:13
right 9:16 35:8 36:25
39:25 41:2 51:2
57:9 60:13 68:22
77:2186:10 87:17
88:17 91:5 92:19
97:15,22*124 98:5
101:8,17,21 103:4
103:7104:12
106:20111:9
113:16 116:6,9
121:22 123:7
125:2130:4,5,8
132:9134:3
135:17,24137:8
139:1 141:11,12
147:3 151:10-
153:6,10155:9
157:23 160:15
rights 29:16 85:23
85:24,25 117:3
149:4
ring 131:20;23
132:24 -
rip 77:11
risk 149-20150:12
role 22:6 46:14 56:9.
67:9132:4
roll 40:11
room 56:W
rotate 57:15
route 23:3 ..
rule 158:2iC
Rune! 19:1 21:21
R-a-b-e 71:3
R-i-e-d-1127:13
S 3:9
sale 37:6 38:1140:16
64:12 81:5 85:13
86:7,1187:11.. . .
sales 65:13,14 72:6
119:2
Salle 71:7,10,11,13
same 11:14 15:16
22:21 26:16 28:23
31:19 92:20 96:23
108:13 125:24
129:8 134:7138:5
138:22148:12
151:9153:13
159:21
Santa 13:10,23,24
14:3,23 74:10
satisfactory 55:17
satisfied 79:8
save 49:12
saw 98:3
Saybrook 56:25 57:3
57:4,8127:11,12
saying 94:17103:22-
134:9
Saylor 2:20
says 6:24 32:13-
33:15 34:8 38:10-
39:14 41:9;11
78:12 80:23 86:6
87:8100:25
103:18104:2`.
113:15 M-13
127:10 146:7
157:25159.1,25
160:12
scabs 77:11
SCE 47:19134:16
scenario 74:7151:24
schedule 162:8
scheduled 87:1&
161:10 162:15
schedules 154:15
scheduling 162:23
scheme 72:17,19
school 12:16,17 =
39:23
science 13:3
scope 21:4 47:21- -
59:25153:21
Scott 56:23 131:25:
132:3
screening 131:10
sea 30:6
SeacliH 102:8-
seasons 69:3
second 19:2120:1-
33:14 41:2 52:11-
113:20124:6
155:8
secretary 20:13
section 6:24 7:6,10
29:25 80:24
sections 30:3 44:7
sector 11:6 14:13
34:3
Sedway 33:16,16,19
33:20,25 57:15,17`
57:19,21,23 58:11
see 18:18 23:4 36:18
38:13 49:2 51:12
52:4 81:7 98:7
103:10'122:19-
144:12146:21
152:4 155:15'-
158:10159:24-
164:1
seeing 71:8 96:1
104:24107:12
1423
seek 58:2
seem 7:1 107.24-
seemed 81:22'
seems 32:12
seen 24:22 58:21
104:25115:6
124:9,19141:24 -
142:2149:3
155:20
select 136.24 -
selected 58:15 82:18
139:20140:9
selection 33:11
sell 36:1058r15'
127:4
seller 122:8
selling 36:15 79:6
153:14
send 93:16134:10;13
144:10145:2Y
146:3
senior 19:16,
sense 64:7 66:18
81:22111:24
sent 55:12 90:2:
112:4 120:3-
121:20 133:24
134:2,5;7,12
135:11,12146:7
147:5 157:25
160:21 163:11-
sentence 87:12
100:25101:10�-
108:25 157:24
separate 18:4 30:14
128:4130:21,23,25
142:8
separately 26:13,14
128:11
September-11:141:5
41:17 69:4
series 82:4,6,7 94:10:
serve 109:3 -
serves 121:22
services 16:6 23:3'
serving 57:4
session 8:2 31:3,5,6
31:12 32:1,1,24
33:134:9,12;14,15
34:20,2135:1,5,11-
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 178•
35:13,15,18 36:4
38:3,19,23,25
39:10 40:3,5,7,11
40:13 70:19 78:13
78:14,16,19 79:16
80:7,23 87:2,15,20
120:2,8,11 127:20
128:5,5,11,18
129:15 142:11,13
156:19,21,23,24
157:5,7,19,20
159:19
sessions 4:14,15 33:9
34:12 36:5 38:3
70:16,16122:3
129:18 159:12,13
159:18
setting 158:12
settings 56:9
seven 66:9
several 29:24 30:19-
sewer 39:21
shape 149:10-
sharing 138:&
sheet 11714.160:12
-
shipow 3-917:17.
28:13 30:20 31:14
31:19 33:5 42:21
44:5 47:4 48:7,21
49:13 51:154:13
54:25 61:4 62:6
63:5 71:19 75:3
76:21 81:14 83:12
84:16 85:2 86:13
88:18 89:1190:16
92:1195:11,21
96:16,23 99:8,21
100:2,20103:20
106:5,13,14,21
107:19108:13
110:17115:23
116:18117:1
123:3 125:5 128:2
137:20 138:14,22.
143:4 145:11
148:24150:5,25
152:2,12,21 154:22
161:1,4,9,25
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83:1185:24137:7
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138:18,19139:15
short 52:15,17
Shorthand 2:20 6:8
show 37:14 38:2 55:4
90:18 104:4 147:5
151:18
showed 103:23
side 103:2107:23
149:19
sign 11:19 55:12
144:4,10 163:15
signature 53:2 109:1
144:2 148:7 158:1
163:11,18
signed 53:5 55:7
117:21 146:2
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significant 64:23
Sign -In 155:8
Silver 15:14 17:7
24:10 81:1 93:10
94:14 97:4 98:1
106:1 109:13
115:11,13 121:3
130:14 131:5
161:11,15,15,18
similar 43:12,17
simple 60:13,15
simply 152:25
since 13:6,16 15:7,16
18:14 29:13 84:2
133:5 161:6
single 28:18 30:15
102:7 158:23
sir 88:13
sit 13:12 18:15 74:16
74:24 91:5
site 30:11,15 47:10
64:23 65:11 83:15
85:14 87:2 101:12
102:24 129:14
134:8
sites 64:16
sitting 49:15
situation 49:2
situations 83:20
six 27:24 50:11,11
70:5 77:3
sixth 155:9
size 67:21 126:14
small 30:12 45:3
smaller 44:23 153:16
153:18
social 16:6
sold 119:6.
sole 74:22
solicitation 136:11
136:20
some 6:20,2012:11.
29:16 33:12 37:9
43:22 44:23 49:12
57:22 58:16 60:19
67:14 74:12 78:4
88:2 91:10 92:17
93:20,23 94:6 99:3
118:2 122:22,23
131:9 132:3,15
135:1 138:7 141:7
142:2 150:17
154:12 161:2
162:21
someone 26:2 36:21
89:1 116:13
120:15 125:9
133:3 159:24
160:2 161:9
something 7:2 8:6
36:18 40:6 43:15
49:24 68:6 74:19
79:14 81:22 86:19
89:1,2,6 90:6
101:5,19 113:15
121:16 134:10,13
146:15 160:21
sometime 10:12
68:25 113:17
sometimes 19:13
22:24 24:1,2 33:21
33:22 40:10 56:21
56:22,23,24 74:9
79:20,21 92:4
111:14 121:2
132:5,6 144:18,19
soon 9:13 149:12
sorry 18:21 20:4
41:3 42:7,11 76:20
77:11 91:8 95:23
103:21 105:21
112:12 118:22
139:6 144:11
152:6
sort 49:7 56:23 79:5
94:10 114:25
151:8
sounded 42:12
151:11
source 58:2
South 3:14 14:11,15
Southern 103:1
135:9
space 45:1 124:6
space -by -space
122:20
speak 7:4 10:2 20:24
50:4,22 51:1 66:19
114:13 121:10
speaking 51:8 90:15
107:2,4 124:17
speaks 148:25 152:3
152:22
special 4:15 38:3
140:24
specialist 20:8
specialty 70:16
specific 4:18 7:1,3
10:16 20:19,24
21:1,7 23:5 26:8
27:25 28:2 37:11
42:14 44:9,21
45:14,17 46:1,1,5,7
46:19 47:10 53:21
58:13 61:18 67:20
DAVID BIGGS, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
67:23 81:18 90:9
90:11,13,17 91:3,4
91:6,19,21,22,25
92:3,5, 7,10,15,22
93:14 94:20,21
96:1,6,8,18 99:10
101:2,10,16,19,23
101:24 102:1,4,7
102:11,16 105:14
105:18,24 107:11
107:12,16 108:16
109:5,18 110:6
114:7,19 117:11
123:1,10,14,15
124:8,11 126:6
130:9 131:9,14
141:9 142:20
148:13,14 151:17
153:3,20 156:8,9
156:16 158:10
specifically 11:11
20:17 32:15 37:16
44:19 46:19 47:13
50:14,20 53:20
55:5 56:8 67:19
71:2,8 72:7,23
76:7 84:1 85:6
88:3 100:23 105:9
106:18 107:1,3
111:24 112:5
113:4,5,9 121:15
128:12 132:16
142:6 143:14,25
144:7 151:4 158:9
160:19
specificity 102:10
127:3
speculate 37:23
75:14
speculating 37:4
speculation 28:13
30:20 33:5 41:20
84:16 85:2 106:22
115:23 125:5
150:5
speculations 81:14
spend 6:16
spent 77:18
spoke 50:25 114:12
spoken 50:6 51:4
114:13
SPs 123:17
SP-12 123:7,9
151:10,20,25 152:7
152:9,14,24 153:2
SP-13 123:12151:11
152:7 153:2
square 47:11,12
76:13 119:1
122:13,17,18
151:23 152:18
stack 142:21
staff 17:12 25:19
27:22 44:25 70:14
88:2 112:23
113:25 114:2
141:12 156:2
157:16 160:5,6
stage 10:25
standard 114:18
147:14
standards 101:3
102:3
stands 63:4
Staples 48:12
start 32:12 88:20
started 13:25 15:17
18:14 19:3
starting 13:19,21
state 1:1 2:1,22 6:25
9:5 12:22 13:15,22
14:14 27:2131:6
148:10
stated 87:12 94:1
139:3,17
statement 54:15
103:4 135:18
136:21 139:12
Statements 135:16
138:25
status 49:25 62:22
62:24 93:17141:1
statutory 70:1
stay 49:4,5
step 135:18
Steve 19:1 21:19
still 10:23 27:11
49:18 61:6 68:18
73:12 78:20 92:22
139:25
stip 162:2 163:4
stipulate 8:11
stipulated 164:5,7
stipulation 8:17
stop 103:7 107:9
store 138:12
story 124:6
straight 65:13
152:11
street 3:9,14 9:7
16:21 73:9
strike 34:18
strip 21:2
stronger 57:23
structure 23:16
studies 72:3
study 4:14 38:3,18
38:23 70:16,19
159:12,13,17,19
sub 16:22 24:13
subject 36:143:2
53:9 81:4 85:11,12
110:24 162:4
submit 44:9 140:1
Page 179
Submittal 78:2,6
submitted 32:21,22
32:23,25 103:7
104:3,21 105:11
109:18 118:1
123-18 134:19
135:20 139:13
151:21 152:9,15
Subpoena 24:23,24
25:5 26:16 115:6
Subpoenas 25:16
129:24
subsequent 115:16
124:19
substance 7:16,18
61:24
Substantially 15:20
subtract 127:1
successful119:21
149:8
successfully 29:17
140:3
sue 127:25
sued 52:T-
sufficiently 148:15
suggest 161:13
suggested 123:25
140:5
suggestions 71:1
suggests 110:18
suit 61:14 115:5
141:25
Suite 3:15
suited 90:7 115:17
summary 122:5
129:20
summer 19:4,7
22:14
SUPERIOR 1:1 2:1
supervisor 15:10,12
support 20:11,14
60:20,22 127:2
supportable 43:22
suppose 23:25 112:9
137:1
supposed 49:3 75:2
Suracci 18:19,21
19:10
sure 9:7 10:14 60:12
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
s
DAVID BIGGS, 07.25.0W
BURLINGTON V. HUNTINGTON CENTER
S-e-d-w-a-y 33:17
S-u-r-a-c-i 18:21.
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
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DAVID BIGGS, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID BIGGS, 07.25.00-
BURLINGTON V. HUNTINGTON CENTER
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JILIOA ASSOCIATES CERTIFIED COURT REPORTERS
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Page 182
536-5582 9:22
54956.8 80:24
6 4:3,17 80:16,17
85:12 125:12
147:6
6th 143:9,22144:6
60 69:6,18 140:12
617-0480 3:16
62 5:11
63102:6
63-acre 101:3
633 3:9
7 4:18 38:9 41:17
97:16,18,22,24
99:1,5 100:12
103:18 104:2
105:10 106:17
112:3,18113:11,22
114:23 115:11,13
122:6
7th 41:5 98:18
7/5128:1%
714 9:22 98:13
7777 81:4,6 85:13-
8 4:19 78:18 103:8
104:4,6,7 105:3,7
122:4
8/16 35:6
8/16/99 34:8,20,23
34:23 35:2,4
8/2/99 37:13,20 38:9
38:16
80 4:17
8113:22
82,000151:23
152:18
896-2413 3:11
9 4:20 121:25 133:15
133:18,22,24
134:10,11,14
136:22140:20
155:5
9/7/99 40:25
9:03 2:22 6:1
90010 3:5
900713:15
90071-2040 3:10
92648 9:8
95101:7
% 101:7,8
97 4:18
98 63:22,23 119:11
99 50:17,17,19 70:21
80:5 119:11
RAY SILVER, 07.25.00`•
SURLIN%w # ON V. HUNTINGTON CENTER
I
SUPERIOR COURT OF THE STATE OF CALIFORNIA
I
APPEARANCES OF COUNSEL:
2
FOR THE COUNTY OF ORANGE
2
FOR THE PLAINTIFF-
3
3
TUCHMAN & ASSOCIATES
4
BY: AVIV L. TUCHMAN, ESQ•
5
BURLINGTON COAT FACTORY )
4
3435 Wilshire Boulevard
WAREHOUSE OF HUNTINGTON BEACH, )
30th Floor
6
INC., a California Corporation, )
5
Los Angeles, California 90010
(213) 385-8000
7
Plaintiff, )
6
))
7
FOR THE DEFENDANTS:
8
vs. Case No.
8
WHITMAN, BREED, ABBOTT & MORGAN, LLP
00CCO6309
BY: MARKS. SHIPOW, ESQ.
9
HUNTINGTON CENTER ASSOCIATES, )
9
633 West Fifth Street
a Delaware Limited Liability )
Twenty -First Floor
10
Company; EZRALOW RETAIL PROPERTIES,)
10
Los Angeles, California 90071-2040
a Delaware Limited Liability )
(213) 896-2413
11
Company; THE EZRALOW COMPANY, a )
11
Delaware Limited Liability Company,)
12
FOR DAVID BIGGS:
12
and DOES 1 through 10, inclusive, )
13
KANE, BA<.LMER & BERKMAN
BY: R. BRUCE TEPPER, JR., ESQ.
13
Defendants )
14
515 South Figueroa Street
Suite 1850
14
15
Los Angeles, California 90071
15
(213)617-0480
16
16
17
17
18
DEPOSITION OF:
18
-
19
RAY SILVER
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20
TUESDAY, JULY 25, 2000
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-
21
23
21
22
23
Avg 1 4 20�0
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24
25
25
1
3
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
INDEX
2
FOR THE COUNTY OF ORANGE
2
EXAMINATION BY Page
3
4
3
MR. TUCHN AN ------------------------------ 5
5
BURLINGTON COAT FACTORY )
4
WAREHOUSE OF HUNTINGTON BEACH, )
5
6
INC., a California Corporation )
6
7
Plaintiff,) )
7
8
EXHIBITS
8
vs. ) Case No.
Page
9
)OOCC06309
HUNTINGTON CENTER ASSOCIATES,
9
Plaintiffs Description Marked
)
a Delaware Limited Liability )
10
14 Notice of Taking Deposition. 19
10
Company; EZRALOW RETAIL PROPERTIES,)
11
15 June 5th Memo from Jane Madera 53
a Delaware Limited Liability )
12
16 June 9th Letter from Jane James 57
11
Company; THE EZRALOW COMPANY, a )
Delaware Limited Liability Company,)
13
17 Memo from David Biggs 58
12
and DOES 1 through 10, inclusive, )
14
18 Agenda Item 67
15
19 RAA dated July 17th, 2000 79
13
Defendants< ) _
— )
16
14
17
15
18
16
17
..
19
INFORMATION REQUESTED
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20
(None.)
19
The deposition of RAY SILVER, taken on behalf of
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20
the Plaintiff, before Amy Saylor, Certified Shorthand
22
21
22
Reporter No. 11560, Registered Professional Reporter, for
the State of California, commencing at 1: 10 p.m., on
23
WITNESS INSTRUCTED NOT TO ANSWER
23
Tuesday, July 25, 2000, at the Law Offices of Tuchman &
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(None.)
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Associates, located at 3435 Wilshire Boulevard, 30th Floor,
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25
Los Angeles, California.
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4
1 (Pages 1 to 4)
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
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Tuesday, July 25, 2000; 1:10 p.m.
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Los Angeles, California
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RAY SILVER
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called as a witness by and on behalf of the
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Plaintiff, and having been first duly sworn by
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the Certified Shorthand Reporter, was examined
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and testified as follows:
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EXAMINATION
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Br MR. TUCHMAN:
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Q. Okay. Can you state and spell your name for the
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record, please.
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A. Ray, R-a-y; Silver, S-i-I-v-e-r.
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Q. And your current address and phone number?
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A. 2000 Main Street, Huntington Beach, California,
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92648.
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Q. And what is your -- did you give us your phone
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number and fax number?
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A. I gave her the business card that has all
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the -- it has the e-mail address and the fax number of the
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deponent
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Q. City Administrator. Number, (714) 536-5575.
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Fax, (714) 536-5233. Okay.
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0
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Have you ever had your deposition taken before?
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A. Yes, I have.
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Q. Approximately how many times?
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A. Three times.
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Q. Three times?
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A. Uh-huh.
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Q. And what are the names of the cases?
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A. Geez, first one, I think was "City of Coronado
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versus Hotel Del Coronado." Second one -- I'm supposed to
9
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remember this?
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MR. TEPPER: If you don'tremember, you don't
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remember.
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THE WITNESS: "The City of Huntington Beach
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versus Mulligan."
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MR. TEPPER: Yeah, that was the Mulligan case.
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THE WITNESS: And there was a third one. I don't
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recall right now the third one.
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BY MR. TUCHMAN:
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Q. Okay. Is the third one the oldest one or the
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newest one?
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A. Somewhere between the two I gave you.
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Q. Okay. Mulligan was in the past two or so?
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A. Yes, it was
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Q. The middle case, that was as your capacity as an
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employee of Huntington Beach?
25
6
RAY SILVER, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
A. No, I think it was with a different agency.
Q. I'm trying to — to be honest with you, I know
there was a third one, I just don't recall what city it
was.
Q. Okay. When the Coronado depo was taken, that
was in your position other than with Huntington Beach?
A. Right It's because I had been City Manager of
Coronado.
Q. Okay. Well get to your employment background in
a second.
A. Sure:
Q. The oath that you've taken has the same force and
effect as if you were testifying in a court of law and
obligates you to tell the truth.
Do you understand that?
A. Yes, I do.
Q. After — if you respond to one of my questions, I
and all present in reading the transcript will assume you
understand what I am asking.
Do you understand that?
A. Yes, I do.
Q. If you don't understand the question or if for
some reason it's ambiguous to you, please ask me to
rephrase. After the transcript — after we are completed
today, the transcript will be prepared and sent to your
7
attorney. You71 be asked to review it and sign it under
penalty of perjury.
Do you understand that?
A. Yes, I do.
Q. When you review it, you can have an opportunity
to correct the transcript; however, if you make any
corrections to the transcript, I can comment on any changes
that you may make later on, so we ask that you give your
best testimony today.
Do you understand that?
A. Yes, I do.
Q. You need to avoid unintelligible responses such
as nods of the head, "huh-uh," and "uh-huh," as the
reporter will not be able to pick those up.
. Do you understand that?
A. Yes, I do.
Q. Is there any reason we cannot proceed today? Are
you under any kind of medication or disability that would
prevent you from giving us your best testimony today?
A. No.
Q. I'd like to get some education background from
you starting with high school. Where did you attend?
A. I went to Bishop Amat High School.
Q. That's in Orange County?
A. No, it's in L.A. County, La Puente.
8
2 (Pages 5 to 8)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RAY SILVER, 07.25.00
BURLIF 'ON V. HUNTINGTON CENTER
1 Q.
What year did you get your high school degree?
1
2 A.
1966.
2
3 Q.
And what did you do after high school in terms of
3
4 education?
4
5 A.
Went to Cal State L.A., got my Bachelor's degree
5
6 there and did my graduate work at Cal State Fresno.
6
7 Q.
Now, were you in the military?
7
8 A.
No.
8
9 Q.
What year did you get your Bachelor's at
9
10 Cal State L.A.?
10
11 A.
1971.
11
12 Q.
What was it in?
12
13 A.
Public administration.
13
14 Q.
And you said you did graduate work at Cal State
14
15 Fresno?
15
16 A.
That, I didn't finish.
16
17 Q.
How many years?
17
18 A.
Two years
18
19 Q.
What years did you attend?
19
20 A.
'74 through '76.
20
21 Q.
What did you do between 71 and 74?
21
22 A.
I was employed part-time in 1971, and 1972 became
22
23 full-time with the City of West Covina.
23
24 Q.
What did you do for West Covina, very briefly?
24
25 A.
I was an analyst in the City Manager's office.
25
9
1
Q. Okay. After you left Cal State Fresno in about
1
2
1976, did you take full-time employment?
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A. I was working hull -time while I was working at
3
4
Cal State Fresno.
4
5
Q. Where did you work?
5
6
A. I was with the City of Madera.
6
7
Q. What did you do for Madera?
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A. I was assistant to the manager.
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9
Q. What years were you with the City of Madera?
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A. '73 through '76.
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11
Q. What did you do after that?
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A. January of 1977, I went to the City of Coronado
12
13
as the Director of Administrative Services.
13
14
Q. How long were you with Coronado?
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15
A. I was there two years as the Director of
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16
Administrative Services, and in '79 I became the City
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Manager of Coronado. ---
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18
Q. How long were you the City Manager of the City of
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Coronado?
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A. Untr71987.
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21
Q. What did you do in '87?
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22
A. I became the Director of Planning for the County
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23
of San Diego.
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24
Q. How long were you the Director of Planning for
24
25
the County of San Diego?
25
10
A. About a year and a hall, then I went to City of
Oakland as City Manager.
Q. How long were you at the City of Oakland as the
City Manager?
A. Two ye2m
Q. Then what did you do?
A. I went to the City of Huntington Beach.
Q. What year did you come to Huntington Beach?
A. 1991.
Q. When you started with the City of
Huntington Beach, what did you start as?
A. I was the Assistant City Administrator.
Q. You moved around a lot.
A. I'm hopefully done with that.
Q. Besides your driver's license, do you have any
licenses issued by the State of California?
A. No.
Q. Have you ever had any licenses issued by the
State of Califomia other than your driver's license?
A. No.
Q. When you came to the City of Huntington Beach in
1991, who was your supervisor?
A. Mike Ubernaga.
Q. Please spell the last name.
A. U-b-e-r-a-a-g-a. He was the City Admmisdster.
11
Q. For how long did you serve as the Assistant City
Administrator?
A. From '91 to November of '97.
Q. And when you were the Assistant City
Administrator, what were your duties?
A. Generalist with some focus on development issues.
Q. Did you say "journalist" or "generalist"?
A. Generalist with some focus on development issues.
Q. Now, from 1991 to November 1997, was your
immediate supervisor continuously Mike Uberuaga?
A. Yes.
Q. Did Mr. Uberuaga leave the City in November of
1997?
A. Yes.
Q. And did you take over the position of City
Administrator?
A. Yes.
Q. And you've been the City Administrator for the
City of Huntington Beach since November of 1997 to the
present day, which is July, 2000?
A. Yes.
Q. Do you share the position of City Administrator
with anyone?
A. No.
Q. Do you hold any other titles other than the City
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
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3 (Pages 9 to 12)
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Administrator for the City of Huntington Beach?
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A. Executive Director of the Redevelopment Agency
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for the City of Huntington Beach.
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Q. How long have you held that title?
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A. Since November of 1997.
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Q. Who was the previous Executive Director of the
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Redevelopment Agency of the City of Huntington Beach?
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A. Mike Uberuaga.
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Q. What are the duties of the City Administrator?
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A. To serve at the pleasure of Council and managing
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the day -today operations of the City.
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Q. Can you be more specific?
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A. All the functions of the City of Huntington Beach
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report to me except for the City Cleric, City Attorney, and
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City Treasurer functions, which have elected department
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heads.
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Q. City Clerk, City Attorney —
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A. And City Treasurer.
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Q. You mean, you run everything from the garbage to
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the roads?
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A. Everybody reports to me, but those three
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functions, that provide services for the City of
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Huntington Beach.
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Q. Who is your immediate supervisor?
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A. The City Council.
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13
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Q. Your position is appointed; is that correct?
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A. Yes.
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3
Q. Now, who is your right-hand man or right-hand
3
4
person, as it were?
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A. The Assistant City Administrator.
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Q. Who is that?
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A. That's vacant. Melanie Fallon left in May of
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this year to go to the City of Long Beach, so it's
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presently vacant.
9
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Q. What is her new position with the City of
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Long Beach?
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A. Director of Community Development.
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Q. Melanie Fallon held the position of Assistant
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City Administrator for how long prior to May of 2000?
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A. From October of'98 till May of 2000.
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Q. What were her duties?
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A.. She oversaw all the development issues for me,
17
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and the department heads related to that area reported to
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her.
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Q. Did Melanie Fallon have any contact with the
20
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Huntington Center shopping center?
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A. What do you mean, in terms of development
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issues?
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Q. Yes.
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A. Yes.
25
14
RAY SILVEP., 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Q. Good. Who else was in your City Administrator
office directly under your supervision besides
Melanie Fallon?
A. There's a Director of Communications.
Q. Who was that?
A. Rich Barnard.
Q. And who else?
A. And a Director of Organizational Effectiveness.
Q. What was that again?
A. It's a long one, huh? Director of Organizational
Effectiveness. He's in charge of all the organizational
development in the City.
Q. I need one of those. And that person's name is?
A. Clay Martin.
Q. Okay. Do Clay Martin or Richard Barnard have
anything to do with the development issues or anything
related to the Huntington Center?
A. No.
Q. Is there anyone else that you directly supervise
in the City Administrator's office?
A. No.
Q. Okay. You mentioned before that you are also the
Executive Director of the Redevelopment Agency for the City
of Huntington Beach. What are your duties in that
capacity?
15
A. To serve at the pleasure of the Redevelopment
Agency Board of Directors, to oversee the Redevelopment
Program of the City of Huntington Beach.
Q. What do you have to do on — on a day -today
basis? Would you say that most of your time is devoted to
City Administrator or being the Executive Director?
A. Well, until Melanie left, I would say I had
almost nothing to do with development issues. When she
left, I was, you know, trying to keep things together until
there's a new assistant.
Q. Has a new assistant been hired?
A. Not till November.
Q. You have one for November?
A. No, it will be vacant probably till November.
I'm recruiting right now, and it's nationwide. It takes
about six months.
Q. Now, when you say you oversee the Redevelopment
Agency, what do you mean? What does that mean? What do
you do?
A. If I had an assistant, it means mainly I talk
with her, and she takes care of the issues with me. With
that position vacant, I'm a little more involved in terms
of getting some sense of what's going on. I would say it's
a small portion of my overall job.
Q. With respect to being the Redevelopment Agency,
16
4 (Pages 13 to 16)
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RAY SILVER, 07.25.00
BURLIR ON V. HUNTINGTON CENTER
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City of Huntington Beach Executive Director, besides you
and the Assistant City Administrator, which position is now
vacant, are there any other Government employees, City of
Huntington Beach employees, besides the Economic
Development Department that work directly for and report to
the — report to the Redevelopment Agency?
A. When the assistant position is vacant or when
it's tilled?
Q. Except for your position and the assistant
position.
A. Ask the question again, I'm sorry.
Q. No problem. Besides you and the assistant, do
they have other people working for them? Does the
Redevelopment Agency --
A. There is a department that handles redevelopment
on a day-to-day. basis. I think that's your question.
Q. Whose department is that?
A. That's David Biggs, Department of Economic
Development.
Q. What is your relationship with David Biggs in
terms of the hierarchy?
A. Well, with the Assistant City Administrator
position filled, he reports to me through the Assistant
City Administrator.
Q. Are you higher on the City hierarchy than
17
David Biggs?
A. Yes.
Q. Are you higher on the City hierarchy than
Mr. Zelefsky?
A. Yes.
Q. Who is Mr. Zelefsky?
A. He's the Planning Director.
Q. Okay. Are you the highest City official that is
not elected?
A. Yes.
Q. And you have the power to tell Mr. Biggs what to
do?
A. Yes.
Q. And you have the power to tell Mr. Zelefsky what
to do?
A. Yes
Q. And who tells you what -to do?
A. City council:
Q. And City Council also is the Board of the
Redevelopment Agency?
A. Yes
Q. It's one and the same. There's no additional
people?
A. * Yes, same people serve both corporations, yes.
Q. Okay. Now, in your capacity as the City
18
1 Administrator, do you hire attorneys?
2 A. No.
3 Q. Okay. Who does the hiring of attorneys?
4 , A. The City Attorney is elected.
5 Q. Okay. That's Gail Hutton?
6 A. Yes.
7 MR. TUCHMAN: Okay. I'm going to ask the
8 reporter to mark for identification as Exhibit — we had 13
9 before. Let's make this 14. This is the Notice of Taking
10 Deposition of Ray Silver.
11 (Plaintiffs Exhibit 14 was marked
12 for identification by the court
13 reporter and is attached hereto.)
14 BY MR. TUCHMAN:
15 Q. And the question is: Have you ever seen
16 Exhibit 14 before, which is the Notice of Taking Deposition
17 of Ray Silver?
18 A. I don't recall getting it.
19 Q. Do you recall the Subpoena, which — receiving
20 the Subpoena which was attached to it?
21 A. I don't think that was sent to me directly.
22 Q. Okay. Do you — did you prepare any documents in
23 response to the Notice of Deposition?
24 A. No.
25 Q. Did you request that someone prepare documents on
19
your behalf?
A. Since I received the deposition?
Q. Yes.
A. No.
Q. Do you maintain any files in your office which
pertain to the Redevelopment Agency?
A. No.
Q. You maintain files in your office that pertain to
your duties as a City Administrator?
10 A. Correct.
I 1 Q. When you get a piece of paper that pertains to
12 the Redevelopment Agency and your functions as a director,
13 what do you do with it?
14 A. Well, it depends what it ks If it's a document
15 to sign, I sign it, it goes back oat. If it's a notice of
16 something just to let me know what's going on. it may go in
17 the trash can. If it's something I want other people to
18 know about, I'll send it out through my executive assistant
19 to get it to other people, and I keep a minimum number of
20 pieces of paper in my ot'fice, assuming somebody else has
21 it. So I keep it in my office.
22 Q. Do you have any files which pertain to the
23 Huntington Center in your office?
24 A. No.
25 Q. You mentioned you have an executive assistant;
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is that a secretary?
A. Yes.
Q. What's that person's name?
A. Patt , P-a-t-t-i; Fogarty, F-o-g-a-r-t-y.
Q. How long has Patti Fogarty been with you?
A. Me?
Q. How long has Patti Fogarty been your executive
assistant as Assistant Administrator?
A. Since November of '97.
Q. Have you had any other clerical staff working
with you as the City Administrator?
A. Yes.
Q. Who?
A. Joan Flynn, F-I-y-n-m
Q. Is she still with the City?
A. Yes. Yes.
Q. And what is her title?
A. She's Administrative Assistant-
Q. Any other administrative assistants or clerical
help?
A. No.
Q. Now, Fogarty and Flynn, they work with you but
purely in a clerical sense?
A. Yes.
Q. Do they maintain files pertaining to the
21
Redevelopment Agency?
A. I don't know.
Q. Do you keep a regular journal or memos of your
activities as the Executive Director?
A. No.
Q. Are you aware if Miss Fallon kept notes or a
regular diary of her duties?
A. I don't know.
Q. Now, Miss Fallon, she left -- why did she leave
the City?
A. A better job.
Q. Okay. Did you assist in -- even though you
didn't produce the documents, did anybody ask you if you
had documents?
A. No.
Q. Did you assist in the preparation of any type of
documents responsive to the Subpoenas?
A. No.
Q. Okay. If I told you some documents have been
withheld and not provided, you would not know anything
about that?
A. Correm
Q. Okay. Were you involved in closed sessions in
1999 which pertained to the redevelopment of the
Huntington Center?
22
RAY SILVER, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
1 A. Yes
2 Q. Okay. And do you know how many of those closed
3 sessions there were?
4 A. I have no idea.
5 Q. Pardon me?
6 A. No, I don't.
7 Q. Was there more than three?
8 A. Specifically related to Huntington Center?
9 Q. Yes.
10 A. I don't recall if there were more than three. It
11 was probably around three. I don't recall the number.
12 Q. Do you know who was present at any of those
13 meetings?
14 A. Yes
15 Q. Who was present?
16 A. City Council, Director of Economic Development,
17 legal counsel, and most of the time probably the Director
18 of Planning.
19 Q. And the - why don't you take a look at
20 Exhibit 6.
21 MR. TUCHMAN: Do you guys have Exhibit 6 in front
22 of you? Were these the exhibits the witness had before?
23 Yeah. Here's a new Exhibit 6.
24 BY MR. TUCHMAN:
25 Q. This is an excerpt of the Minutes from 11/13/99
23
1 second paragraph. Do you recognize Exhibit 6?
2 A. Yes, I do.
3 Q. Okay. Exhibit 6 are Minutes from
4 Counsel/Redevelopment Agency Minutes, 11/15/99.
5 A. Correct
6 Q. Do you know what occurred at that closed session
7 meeting?
8 A. I know there was general discussion about
9 negotiations on the Huntington Center and Ezralow
10 Corporation.
11 Q. Are you aware of any promises that were made to
12 Ezralow relative to financial assistance or assistance of
13 any kind that would be provided to Ezralow in the event
14 they close escrow?
15 MR. TEPPER: Objection as to time. Are we
16 talking about this meeting?
17 MR. TUCHMAN: Yes.
18 THE WITNESS: I don'trecall what was said in
19 that meeting other than the fact we generally talked about
20 Huntington Center.
21 BY MR. TUCHMAN:
22 Q. Okay. At any time were you aware of any
23 commitments or assurances made by the Redevelopment Agency
24 to Ezralow in the event they purchased the property?
25 A. I don't recall there being any promises to them
24
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1 to date.
2 Q. When's the first time you heard about Burlington
3 Coat Factory?
4 A. When they first moved into the Huntington
5 Center. That's not true. They were across the street
6 before. Probably whenever they moved into the Edinger
7 Corridor.
8 Q. Have you ever had any conversations with anyone
9 from Ezralow or Huntington Center Associates or their
10 attorneys pertaining to Burlington Coat Factory?
11 A. Yes.
12 Q. How many times?
13 A. Gera, I don't know how many times.
14 Q. More than a dozen?
15 A. No, I doubt it was more than a dozen.
16 Q. Okay. Can you remember any of those
17 conversations individually?
18 A. Partially.
19 Q. Okay. When was the first one?
20 A. I partially remember generally what was
21 discussed. I couldn't tell you every date, every meeting.
22 Q. What was discussed?
23 A. Whether or not Burlington would be part of the
24 center or not.
25 Q. And what was Ezralow's response?
25
1 A. They hadn't made op their mind at that point.
2 Q. Do you know what point that was?
3 A. I don't recall when that was.
4 Q. Okay. And what was the response from you
5 relative to Burlington's involvement?
6 A. Basically, that it was up to the major property
7 owner to determine the appropriate retail mix.
8 Q. Is it up to the Redevelopment Agency of the City
9 of Huntington Beach as to who is going to be in the tenant
10 mix?
11 A. From a practical or legal point of view?
12 Q. From any point of view.
13 A. Ask the question again, please.
14 Q. Is it up to the Redevelopment Agency of the City
15 of Huntington Beach to determine who is going to be a
16 tenant at the center?
17 MR. TEPPER: I think that s a little ambiguous.
18 1 think the witness has expressed a concern as to whether
19 the Agency has the legal ability to determine whether or
20 not that's economically -viable. So if you'll break that
21 down into terms of what you really want.
22 THE WITNESS: Sure.
23 BY MR. TUCHMAN:
24 Q. The question is: As we sit here right now, is it,
25 up to the Redevelopment Agency, "Burlington you're in;
1 Burlington you're out"?
2 A. Obviously, we're going to look to the primary
3 property owner, to listen to them first, to listen to what
4 they think is an appropriate mix of retail. We're not the
5 experts on the retail mhL
6 Q. Would it be a fair statement if I was the Ezralow
7 attorney to say, "It's not up to us whether Burlington
8 stays or not, it's up to the Agency"?
9 MR. SHIPOW: Objection. Hypothetical.
10 Incomplete hypothetical. Calls for speculation.
11 BY MR. TUCHMAN:
12 Q. You can answer.
13 MR. TEPPER: If you have an answer.
14 THE WITNESS: Yeah. I'm song. Would you ask
15 the question again? I'm song.
16 BY MR. TUCHMAN:
17 Q. I most certainly will.
18 A. Okay. I'm sorry. Go ahead.
19 MR. TUCHMAN: Please read the question back.
20 Thank you.
21 (Whereupon the previous question was read
22 back by the court reporter as requested.)
23 THE WITNESS: I guess they can say whatever they
24 believe is their position, I guess.
25 ///
27
1 BY MR. TUCHMAN:
2 Q. But is that the position of the Agency?
3 A. Well, is that the position of the Agency?
4 MR. SHIPOW: Same objections.
5 THE WITNESS: Again, obviously we're looking to
6 the major property owner to see what they think is a
7 successful retail center.
8 BY MR. TUCHMAN: '
9 Q. So as we sit here right now, it's not up to the
10 Development Agency to determine one way or the other if
t 1 Burlington is a proper tenant to be in the mix?
12 MR. SHIPOW: Argumentative. Misstates the
13 testimony.
14 MR. TEPPER: You can answer, if you understand.
15 THE WITNESS: Again, legally the Agency obviously
16 has some authority, but whether or not it exercises it is a
17 practical question. We're trying to listen to the property
18 owner at this point.
19 BY MR. TUCHMAN:
20 Q. Okay. And when you say ultimately you may have
21 the power, you mean an imminent domain decision, which is
22 somewhere down the line?
23 A. It's in the realm of possibilities.
24 Q. Okay. Has the Redevelopment Agency anywhere said
25 in writing or verbally, to your knowledge, "We don't want
28
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1 Burlington Coat Factory to be at the shopping center"?
2
A. I don't know of anywhere where we've said that in
2
3
writing...
3
4
Q. What about verbally?
4
5
A. I don't know where we said that verbally as an
5
6
agency.
6
7
Q. Okay. You, as the City Administrator and as the
7
8
Executive Director of the City of Huntington Beach
8
9
Redevelopment Agency, do you have a preference one way or
9
10
the other as to whether Burlington should be or should not
10
11
be in the center?
11
12
A. I think it's premature. _
12
13
Q. You mentioned that you had conversations with, 1
13
14
think, the Ezralow people. I want to go back to those
14
15
conversations. What else was said in those conversations?
15
16
A. I think generally we were talking about what the
16
17
center might look like. You know, they had some
17
18
illustrations — list of drawings of an Italian concept.
18
19
We talked about that. We talked about generally the niche
19
20
in the market that might — if it's possible with all the
20
21
other malls around. That's about it.
21
22
Q. What other conversations did you have with any of
22
23
the Ezralow representatives regarding Burlington?
23
24
A. Just basically that they'll have to determine,
24
25
based upon the retail mix they want to ultimately achieve,
25
29
I
if it's in the mix.
1
2
Q. Did Ezralow ask your help as the Executive
2
3
Director of the Redevelopment Agency of the City of
3
4
Huntington Beach, ask your help in connection with the
4
5
lawsuits they've been involved in with Burlington?
5
6
A. We haven't talked about the lawsuits. I haven't
6
7
talked about the lawsuits.
7
8
Q. 1 want you to take a look at Exhibit 7. Make
8
9
sure you have 7 in front of you. This is Exhibit 7 here.
9
10
A. Sure.
10
11
MR. TUCHMAN: For the record, Exhibit 7 is the
11
12
June 5, 2000, one -page memo to Howard Zelefsky from Ray
12
13
Silver.
13
14
BY MR. TUCHMAN:
14
15
Q. Do you recognize Exhibit 7?--
15
16
A. - Yea, I do,
16
17
Q. What is Exhibit 7?
17
18
A. It's a memorandum from me to Howard Zelefsky, the
18
19
Director of Plantain&
19
20
Q. Who typed it?
20
21
A. I don't know who typed it.
21
22
Q. Did you author it?
22
23
A. No.
23
24_
Q. Somebody authored it for you?
24
25
A. Yes.
25
RAY SILVER, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
Q. Who authored it for you?
A. I don't know.
Q. Did Mr. Kane author it?
A. I don't know who authored it.
Q. Is the first time you saw this memo, was that on
Wednesday, June 7, 2000?
MR. TEPPER: June 7?
THE WITNESS: I don't recall what date I first
saw it. I just simply know it came in my office to be
signed, and I initialed it.
BY MR. TUCHMAN:
Q. Who brought it into your office?
A. It was in my "in" basket when I came back from a
meeting, and it was in the rde to sign W
Q. What did you do -- and these are your initials on
Exhibit 7; is that right?
A. Yes, that's "R.R.&" That's me.
Q. When you signed the memo, did you know what you
were signing?
A. I wasn't sure.
Q. Okay. Did anybody tell you who typed up this
memo?
A. No, nobody told me this was coming to my office.
Q. And when you signed it, do you remember signing
it the day it was dated or you signed it a couple days
31
later?
A. I know I signed it the day it came to my office.
I don't know what day that was.
Q. Do you know if it was back -dated?
A. Again, I don't remember what day I signed it.
So, you know, I don't know if I signed it on June 5th, and
it was not back -dated. I don't know if it was June 5th I
signed it.
Q. Is it possible you signed Exhibit 7 on Wednesday,
June 7th?
MR. SHIPOW: Objection. Calls for speculation.
THE WITNESS: You know, I don't recall the day I
signed it.
BY MR. TUCHMAN:
Q. Is it possible it was back -dated?
MR. TEPPER: Objection.
MR. SHIPOW: Objection.
THE WITNESS: I had no reason to believe it was
back -dated. i didn't think about it then and 1 don't think
about it now.
BY MR. TUCHMAN:
Q. After you initialed Exhibit 7, what did you do
with it?
A. I put it in the "out" basket for my executive
assistant to give it to whoever it needed to go to, which
32-
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1
was Howard Zelefsky.
1
Q. Who told you that?
2
Q. And do you know if it was delivered to
2
A. I don't recall who told me that.
3
Howard Zelefsky?
3
Q. Were you aware that the document that you
4
A. Yeah. I'm pausing because I don't know when it
4
initialed was to be filed with a declaration of
5
was delivered to him. I know he got it. I know that. 1
5
Mr. Zelefsky?
6
didn't really track it, to be honest, after that.
6
A. No, I was not.
7
Q. You tracked it in the past few days though?
7
Q. Were you aware that this memo was prepared for
8
A. No, I haven't tracked in the past few days.
8
the Ezralow/Burlington litigation?
9
Q. Did you make a decision who the CCs would go to?
9
A. No, I was not.
10
10
Q. Did anybody tell you that?
11
A. No. This was typed for me, and I just pat my
11
A. No.
12
initials on it.
12
Q. Are you aware of the effect of Exhibit 7 on the
13
Q. Did you review any drafts of Exhibit 7?
13
litigation?
14
A. No.
14
A. Somewhat now.
15
Q. Did you -- I'm sorry.
15
Q. What happened?
16
A. I just saw it in final formin my ofllce.
16
A. Well, as I understand —
17
Q. Did you pick up the phone and ask anybody about
17
MR. SHIPOW: Objection. May call for
18
Exhibit 7?
18
attorney/client privilege.
19
A. No. I went down to Planning and I asked
19
BYAR. TUCHMAN:
20
Howard Zelefsky why I was getting this. He said, "It's
20
Q. You can answer.
21
just standard that the City has the ability to initiate a
21
MR. TEPPER: Well, no, if he got it from an
22
zone change," so it was no big deal.
22
attorney -- and I know you didn't get it from me -- but if
23
Q. It was in your "in" box, you saw it, and before
23
you did get it from an attorney --
24
you signed it, you went down to —
24
THE WITNESS: I don't know who. i know this
25
A. Yes.
25
caused some consternation on behalf of Burlington based on
33
35
1
Q. -- Zelefsky?
1
some communication 1 saw after this memo went somewhere.
2
A. Yes.
2
BY MR. TUCHMAN:
3
Q. What caused you to go down there?
3
Q. Just a few letters.
4
A. Well, it didn't seem like a big deal to do a memo
4
A. You were —or did one of you speak at Council
5
on it because I knew the City had authority to initiate
5
chambers after that?
6
zone changes. It seemed like standard practice.
6
Q. let's take a look at this memo.
7
Q. So when you went down there, what did you say to
7
A. Sure.
8
him?
8
Q. Do you recognize the fax legend at the top of
9
A. I said, "Howard, how come I'm being asked to sign
9
Exhibit 7?
10
this memo?" He says he's not sure, but it's all right
10
A. The fax legend?
11
because it's standard practice for the City to initiate
11
Q. Yes.
12
zone changes.
12
A. F-a-x, you mean?
13
Q. Were you aware at the time you were asked to sign
13
Q. Yes. From the City of H.B. Community Development
14
this memo that there was litigation ongoing between the
14
Department, Fax No., (714) 374-1540, June 7th, 2000, at
15
Ezralow entities and Burlington?
15
1:41.
16
A. I don't recall what was going on at that time in
16
Do you recognize this legend?
17
terms of the specific legal actions going on between any
17
A. I recognize what it says.
18
parties,..
18
Q. That's the fax number of the Huntington Beach
19
Q. Were you aware that there was at the time a
19
Community Development Department; is that right?
20
pending application fora Temporary Restraining Order
20
A. Could be. I don't fax anything. I don't know
21
brought by Burlington against Firalow?
21
what their number is, to be honest with you.
22
A. 1 don't recall knowing that.
22
Q. Do you know why this was faxed out the afternoon
23
Q. Okay. Did anybody tell you that? .
23
of June 7th?
24
A. I don't recall when someone might have told me.
24
A. No,1 don't.
25
1 don't know if it was after, before, or when it was.
25
Q. Did you determine — I'm looking at Exhibit 8
34 1 36
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1 now. It should be in your pages here. Did you go and find I 1
2 the original application to establish a new Specific
2
3 Plan 13?
3
4 A. Did I go look for it?
4
5 Q. Yeah.
5
6 A. I don't recall going to look for it.
6
7 Q. Did you ask anybody why you were changing the
7
8 applicant?
8
9 MR. SHIPOW: Objection. Mischaracterizes the
9
10 document. Mischaracterizes the testimony. There's been no
10
11 testimony that there's been any change.
11
12 THE WITNESS: I'm sorry. Ask the question again.
12
13 MR. TUCHMAN: Read the question back, please.
13
14 (Whereupon the previous question was read
14
15 back by the court reporter as requested.)
15
16 THE WITNESS: I don't recall if I did that.
16
17 BY MR. TUCHMAN:
17
18 Q. Okay. I want to take a look at the language in
18
19 here.
19
20 A. You're back at the memo?
20
21 Q. Yes. Thank you. It says, "As required by the
21
22 City of Huntington Beach General Planning, adoption of a
22
23 specific plan is necessary to establish zoning and
23
24 development standards for the 63 acre Huntington Center
24
25 property."
25
37
1
Do you see that?
1
2
A. Yes, I do.
2
3
Q. Were you aware of those facts as of June 5th,
3
4
2000?
4
5
A. Yes.
5
6
Q. Okay. And those are true facts as of June. 7,
6
7
2000?
7
8
MR. TEPPER: Excuse me?
8
9
BY MR. TUCHMAN:
9
10
Q. Those are true facts as of June 7, 2000?
10
11
MR. TEPPER: I thought you just talked to him
11
12
about June 5th. I thought you just asked him the date of
12
13
the memorandum.
l3
14
MR. TUCHMAN: You can ask whatever questions you
14
15
want to ask. —
15
16
MR. TEPPER: No, I want that original question
16
17
read back.
17
18
MR. TUCHMAN: Oh, I definitely said June 7th.
18
19,
THE WUNESS: I.et me clarify that then.
19
20
MR. TEPPER: The first time I heard it, I heard
20
21
June 5th. The second time, I'm now hearing June 7th.
21
22
MR. TUCHMAN: Absolutely.
22
23
THE WITNESS: Would you repeat the question? I'm
23
24
sorry.
24
25
///
25
38
RAY SILVER, 07.2S.00
BURLINGTON V. HUNTINGTON CENTER
BY MR. TUCHMAN:
Q. Well start again, okay?
A. Okay. Sure.
Q. Was it true as of June 7, 2I100, that as required
by the City of Huntington Beach General Planning, adoption
of a specific plan is necessary to establish zoning and
development standards for the 63-acre Huntington Center
property?
A. I think it's true as of any date, yeah. 1
Q. The next sentence, "The specific plan allows the
unique design and architectural guidelines to govern future
development of the site."
That was true as of June 5 or June 7?
A. Correct.
Q. And you knew that as of June 7, 2000?
A. True.
Q. Okay. And the last sentence of the first
paragraph, "Adoption of the specific plan requires
processing of a zoning map amendment and zoning text
amendment."
Were you aware of that as of June 7th, 2000?
A. Yes.
Q. Eventually -- as of June 5, 2000, was there an
approval of the amendment to the specific plan by way of a
zoning map amendment and zoning text amendment?
39
A. As of what date?
Q. As of June 5th.
A. I don't tecaU what date that came before the
Council, because that would have been the approval. I
don't know what date that was.
Q. I think it was July 5th, 2000. Does that sound
right to you?
A. Sure.
Q. Okay. Now, "The Ezralow Company" -- I'm reading
on -- "is the property owner of the majority of the site,
while Montgomery Ward's owns approximately 13 acres and
Southern California Edison Company retains ownership
beneath the high tension wires on the north side of the
property."
Were you aware of this as of June 5, 2000?
A. Yes.
Q. You were personally aware of that?
A. Yes.
Q. Okay. Next --
A. Well, let me clarify that. I wasn't aware that
Ward's has 13 acres. I mean, we talked about 13 acres. To
this date, I'm not sure if 13 acres is the correct amount
of acres Montgomery Ward's has.
Q. Okay. To this day, are you aware of the -- is
Burlington Coat Factory an owner at the shopping center, as
40
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
far as you know?
MR. SHIPOW: Objection. Ambiguous as to what you
mean by the term "owner."
THE WITNESS: It's my understanding they have a
lease.
BY MR. TUCHMAN:
Q. What kind of lease, do you know?
A. Just a lease between them and the major property
owner, Ezralow.
Q. Is it considered an owner under your OPA rules?
A. I don't know.
Q. Okay. Do you know what year the lease ends?
A. I know nothing about the lease document. I never
saw it. I don't know what's in there.
Q. Okay. The next sentence, "Although an
application for a zone change was submitted by Ezralow on
March 30th," and we saw that in Exhibit 8 -- by the way,
did you know this was a fact, "Although an application for
a zone change was submitted by the Ezralow Company on
March 30th, 2000"?
A. No, I didn't know that at the time.
Q. "It is more appropriate for the City and the
Redevelopment Agency to be designated as actual applicants
for the proposal because the initial plan is a
City -initiated project."
41
Was that yoitr conclusion as of June 5, 2000?
A. Well, I initialed the memo. That answers that.
Q. You didn't come up with this conclusion,
yourself, "It is more appropriate for the City and the
Redevelopment Agency to be designated at actual
applicants"?
MR. TEPPER: I think that's a misstatement of his
testimony. So why don't you ask him the question directly.
MR. TUCHMAN: Read the question back.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Obviously, by my signing the memo,
I trusted that whoever prepared the memo was accurate_ in
their preparation of this memo.
BY MR. TUCHMAN:
Q. But we don't know who prepared the memo; right?
A. I don't
Q. Did you ever find out who prepared it?
A. I never did. To be honest, I never tried to
track it down.
Q. You never asked?
A. No.
Q. Now I'm talking June 5, 2000. Was that your
opinion as of that day?
A. I guess it is since I initialed the memo.
42
1 Q. The immediate split second before you initialed
2 it, did you independently come up with the thought, the
3 idea, that it is more appropriate for the City and the
4 Redevelopment Agency to be designated as actual applicants
5 for the proposal because the specific plan is a
6 City -initiated project?
7 MR. TEPPER: It misstates his testimony..I think
8 he said he went down to talk to Howard Zelefsky.
9 MR. TUCHMAN: Read the question back.
10 (Whereupon the previous question was read
11 back by the court reporter as requested.)
12 THE WITNESS: No, I did not independently come up
13 with this.
14 BY MR. TUCHMAN:
15 Q. Next, 'Therefore, this memo and my signature, as
16 City Administrator and Executive Director of the
17 Redevelopment Agency of the City of Huntington Beach, serve
18 as application authorization for the processing of Zoning
19 Map Amendment No. 00-01 and Zoning Text Amendment
20 No. 00-02 (Specific Plan No. 13}"
21 When you signed and authorized this change, you
22 signed the memo in from of you, you didn't, as a City
23 Administrator and the Executive Director of the
24 Redevelopment Agency, independently come up with this
25 necessity?
43
1 MR. TEPPER: Objection. Mischaracterization of
2 the word "change." I think the testimony has been
3 otherwise.
4 MR. TUCHMAN: Give him the question back.
5 (Whereupon the previous question was read
6 back by the court reporter as requested.)
7 THE WITNESS: I didn't come up with it
8 independently, no.
9 BY MR. TUCHMAN:
10 Q. Okay. Next, it says, "Please update the Planning
11 Department records to this effect."
12 In addition for you to update the Planning
13 records, you didn't come up with that independently either?
14 A. No, I did not.
15 Q. Do you know why this memo was CCed to the Mayor
16 and the City Council members?
17 A. I think it's standard operating procedure for
18 these different parties to get copies of things like this.
19 Q. Do you know why Mr. Biggs was CCed?
20 A. Because he represents the agency and the agency
21 was a party to this memo.
22 Q. Did you speak with Mr. Biggs regarding this memo,
23 ever?
24 A. Yes.
25 Q. When? .
44
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1 A. Sometime after you spoke at the Council meeting
1
2 and brooks started over this whole thing.
2
3 Q. Brooha, huh?
3
4 A. Yak.
4
5 Q. What did you ask him?
5
6 A. I asked him if it was really necessary for this
6
7 memo to be done since it's standard operating procedure for
7
8 the City to initiate changes.
8
9 Q. What did he say?
9
10 A. He said, "It's just form,"
l0
t 1 Q. And how did you respond?
11
12 A. "Fine."
12
13 Q. Did you have a conversation with any of the
13
14 Planning Commission members prior to -- between June IS and _
14
15 June 20, 2000, regarding Exhibit 7, the June 5, 2000, memo?
15
16 A. No.
16
17 Q. Did you have any conversations with any of the
17
18 Planning commissioners regarding your memo and why you
18
19 signed it?
19
20 A. I don't recall any.
20
21 Q. Did you say to Mr. Biggs that you were upset that
21
22 this memo was given to you to sign?
22
23 A. Did I say I was upset? I think — no, I didn't
23
24 say that.
24
25 Q. You said words to that effect?
25
45
1 A. I said why bother to send this memo if it was
1
2 standard operating procedure to make zone changes initiated
2
3 by the City.
3
4 Q. You expressed to Mr. Biggs that you were unhappy
4
5 that you had signed Exhibit 7; isn't that correct?
5
6 A. Well, there's a difference between ftnstrated and
6
7 unhappy. I'll say I was unhappy about signing it.
7
8 Q. Okay. And why were you unhappy about signing it?
8
9 A. Because it seemed unnecessary if — because we
9
10 can normally just process zone changes as the City. So why
10
t t go through a special memo and do that.
11
12 Q. Are you aware of any requirements under the
12
13 Zoning and Ordinance provisions of the City of
13
14 Huntington Beach whereby the City and the Redevelopment
14
15 Agency must make a formal motion to -become the applicant?
15
16 A. I don't recall any section that says that
16
17 Q. Okay. Are you aware today, as you sit here
17
18 today, that a motion should have been filed to do this?
18
19 MR. TEPPER: Assumes a legal fact and is
19
20 incorrect.
20
21 THE WITNESS: I'm not aware of any motion that
21
22 would have to be made.
22
23 BY MR. TUCHMAN:
23
24 Q. Are you aware of any requirement before you would
24
25 authorize Exhibit 7 that there has to be public notice of
25
46
RAY SILVER, 07.2S.00
13URLINGTON V. HUNTINGTON CENTER
this agency?
A. I'm not aware of any.
Q. Were you aware -- were you at the Planning
Commission meeting where Mr. -- Commissioner Biddle advised
that this action was improperly noticed?
A. No.
Q. Were you aware that he made those comments?
A. I read it in the paper.
Q. Okay. And what's your reaction to that?
A. Well, I think be said it was unethical, but I
don't think it's unethical.
Q. That the June 5, 2000, memo, which is Exhibit 7,
was unethical?
A. That's what the newspaper reported he said, yes.
Q. You also had some other words that you discussed
with Mr. Biggs in addition to being upset with Exhibit 7 --
MR. TEPPER: Mischaracterizes his testimony.
MR. TUCHMAN: The June 5, 2000 — you need to let
me finish the question.
MR. TEPPER: You had already mischaracterized his
testimony.
MR. TUCHMAN: Okay. Thank you.
BY MR. TUCHMAN:
Q. What other words did you use to describe your
feelings on it?
47
A. I don't recall any other feelings.
Q. Did you talk to Mr. Zelefsky about this memo?
A. As I indicated, I talked to him before I signed
it to understand why I was signing this memo.
Q. Did you talk to him after?
A. I don't recall if I did or not.
Q. Did you ask that the City Council retroactively
approve your June 5, 2000, memo -- or the memo you actually
initialed? Sorry.
MR. TEPPER: Retroactively approve?
MR. TUCHMAN: Yes.
MR. TEPPER: That's ambiguous. Please -- if the
witness understands it.
THE WITNESS: I think the agenda item called an
RCA, said -- asked Counsel to ratify, I believe, the
decision I made, and I think on one of the RCAs, they did
pick that motion to ratify action.
BY MR. TUCHMAN:
Q. What's an RCA?
A. Request for Counsel Action. It's an agenda item
format.
Q. Right. And did you initiate that RCA?
A. No.
Q. How was that RCA initiated, if you know?
A. Initiated by staff
48 '1
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Q. Okay. And did you discuss Exhibit 7, the June 5.
2000, memo with staff?
A. Well, as I indicated, I talked to Howard and I
talked to David.
Q. Any other staff members like Jane James,
Herb Fauland, or Scott Hess?
A. I don't recall talking to them about it.
Q. Did you express -- did you speak to any of the
Council members regarding your dissatisfaction with having
to initial Exhibit 7, the June 5, 2000, memo?
A. I don't recall doing that.
Q. Did you express your dissatisfaction or
unhappiness to anyone other than Mr. Biggs regarding your
having to initial Exhibit 7, the June 5, 2000, memo?
A. I don't recall saying anything to anybody else.
Q. When did you first become aware of the litigation
between Burlington Coat Factory and Ezralow and the
Ezralow-related entities?
A. I don't recall. I don't know if it's when you
came up or I read it in the paper. I don't recall when I
first saw it.
Q. Wasn't it prior to June 5th, 2000, that you
became aware that there was litigation between Burlington
and Ezralow?
A. I don't recall.
49
Q. Did you know at the time you initialed Exhibit 7,
the June 5, 2000, memo that there was litigation ongoing?
A. I don't recall if I did or not,
Q. Have you discussed the matter with Mr. James
Hughes?
A. James Hughes?
Q. Yes.
A. Who is James Hughes?
MR. SHIPOW: That answers that question.
THE WITNESS: Yeah, I don't know who that is.
BY MR. TUCHMAN:
Q. Have you ever discussed the June 5th, 2000 --
dated June 5th, 2000, memo, which is Exhibit 7, with any
attorneys for Ezralow?
A. I don't recall if I did or not.
Q. Were you ever asked to sign a declaration under
penalty of perjury?
A. No► You mean, related to this subject?
Q. Yes.
A. No.
Q. Are you aware that anybody from the City has
signed declarations under penalty of perjury?
A. No, I'm not.
Q. Did you speak to the Mayor about your June 5th,
2000, memo?
50
1
A.
I don't recall if I did or not.
2
Q.
The Mayor has made some comments about the
3
June 5,
2000, memo.
.4
A.
Really?
5
Q.
You're not aware of them?
6
A.
I don't know. What did he say?
7
Q.
Okay. You wrote a subsequent memo regarding your
8
actions with respect to the June 7th memo; am I correct?
9
A.
I wrote a memo subsequent to it?
10
Q.
Yeah.
11
A.
Regarding this?
12
Q.
Yes.
13
A.
I don't recall that I did.
14
Q.
Or was a memo authored for you?
15
A.
I don't recall if I did or not.
16
Q.
I will get it out.
17
MR. TUCHMAN: Why don't we take a five-minute
18
break.
I think you re waning a little.
19
THE WITNESS: It's not that. It's just
20
afternoon. I'm 51 years old now, so things start fading
21
sooner
than they used to.
22
MR. TUCHMAN: You don't look older than 50.
23
THE WITNESS: Thank you.
24
MR. TUCHMAN: Take a walk.
25
(A brief recess was taken.)
51
1 BY MR. TUCHMAN:
2 Q. Now,1 want to go on and talk about some more
3 documents. Before I do that, did you have a conversation
4 with Mr. Biggs regarding the declaration he was submitting
5 in connection with the Ezralow/Burlington litigation?
6 A. I don't recall having any discussion with him
7 about a declaration.
8 Q. Did you have a discussion with Mr. Zelefsky
9 regarding the declaration he submitted?
10 A. I don't recall any discussions with Howard
11 either.
12 Q. Did you review any documents in preparation for
13 this deposition?
14 A. No.
15 Q. Have you had any direct contact with anyone from
16 Burlington Coat Factory?
17 MR. TEPPER: Hold it. Objection as to time.
18 When?
19 MR. TUCHMAN: Anytime.
20 THE WITNESS: No, other than buying clothes
21 there.
22 BY MR. TUCHMAN:
23 Q. So you're saying you're a customer then?
24 A. Yes.
25 Q. Okay.
13 (Pages 49 to 52)
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MR. SHIPOW: That doesn't conflict him out.
I
Q. But do you recognize it at all?
2
THE WITNESS: I bought my jeans there. I bought
2
A. I don't recognize it. I see what it says, but --
3
less than $250 of jeans there.
3
Q. Yeah. Do you have any idea what the "G" means?
4
BY MR. TUCHMAN:
4
A. I don't know what the "G" means.
5
Q. All right. Then we can continue. All right.
5
Q. Okay. "JM/crossing." Jane Madera is Jane James;
6
A. Maybe I should go buy a bunch of stuff and I'D
6
right?
7
be conflicted out
7
A. She is now, yeah.
8
Q. It's okay.
8
Q. Okay. This is from Jane Madera to
9
MR. TUCHMAN: I'm going to ask the reporter to
9
Scott Dinovitz, June 7, 2000. "Please read the attached
10
mark for identification as Exhibit 15 -- I think we're on;
10
memo regarding applicant status for Specific Plan No. 13.
11
is that right, Mr. —
11
Please be aware that Ezralow is no longer considered as
12
MR. SHIPOW: I believe so, yes.
12
applicant for the zoning map and zoning text amendments.
13
MR. TUCHMAN: Yes.
13
Feel free to call me if you have any questions regarding
14
(Plaintiffs Exhibit 15 was marked
14
this issue."
15
for identification by the court
15
Have you ever seen this before?
16
reporter and is attached hereto.)
16
A. I don't recall ever seeing this before.
17
BY MR. TUCHMAN:
17
Q. Okay. All right. Do you know if this was faxed
18
Q. This was previously identified as Item 36, and
18
over to Council?
19
you may or may not recognize it. This is a cover sheet
19
A. You mean City Council?
20
dated June 7th, 2000, to Scott Dinovitz from Jane Madera,
20
Q. Yeah.
21
and then the June 5th memo is underneath it. It says --
21
A. I don't recall Council getting that
22
take a look at the last page of the June 5th memo here.
22
Q. Now, did you ever talk to Jane James about
23
Do you recognize this computer reference,
23
your — about the June 5th, 2000, memo?
24
(G:jm/crossings/authorization)?
24
A. I may have once.
25
A. On here?
25
Q. When was that? -
53 1 55
1
Q.
Yeah.
1
A. I think after I talked to Howard Zelefsky, before
2
A.
The thing way down here?
2
I signed it
3
Q.
The thing way down there, yes.
3
Q. What did you say to her?
4
A.
Do I recognize it?
4
A. I said, "Jane, why am I signing this?" She said,
5
Q.
Yeah.
5
"Because it's a standard practice for the City to initiate
6
A.
As if I noticed it before, you mean? No.
6
zoning."
7
Q.
Okay. As you look at it now, do you know what
7
Q. Does Jane James and Zelefsky work five days a
8
computer this was generated on?
8
week, Monday through Friday?
9
A.
Not for sure.
9
A. I don't know if Jane James is on a flexed time
10
Q.
Do you have any idea?
10
schedule or not
11
MR. SHIPOW: Objection. Calls for speculation.
11
Q. Okay.
12
THE WITNESS: I don't know what the "G" is.
12
A. Howard is five days a week.
13
BY MR.
TUCHMAN:
13
Q. Okay. Are you on one of those flexed schedules,
14
Q.
What's the "1M"?
14
or are you five days a week?
15
A.
That could be Jane Madera but now she's
15
A. Management gets W work every day.
16
Jane James, so I don't know if she would have "JJ" on it
16
Q. Okay. That's good. Now, do you know why this
17
rather than. "JNL
17
was faxed to Scott Dinovitz?
18
Q.
Okay. Do you recognize the way this setup is?
18
A. No.
19
A.
Do I recognize the setup?
19
Q. Okay.
20
Q.
Yeah.
20
MR. TUCHMAN: I'll ask the reporter to mark for
21
A.
I'm guessing it's some kind of documentation for
21
identification as Exhibit 16, this.is Item No. 40. You can
22
some
purpose.
22
put that down there. Thank you. Right here is good.
23
Q.
Okay. It's some kind of tracking, but do you
23
Thank you.
24
recognize it?
24
25
A.
Probably, yeah.
25
54 1 56
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1
(Plaintiffs Exhibit 16 was marked
1
2
for identification by the court
2
3
reporter and is attached hereto.)
3
4
BY MR. TUCHMAN:
4
5
Q. Exhibit 16, Item 40, and this is a fax, June 9,
5
6
or letter of June 9, received June 12th by the Department
6
7
of Planning from Jane James to Scott Dinovitz, advising
7
8
that Ezralow is withdrawing their application.
8
9
Do you see that?
9
10
A. Yes, I do.
10
11
Q. Have you ever seen Exhibit 16 before?
11
12
A. I don't recall ever seeing it before.
12
13
Q. So you don't know why it was created then?
13
14
A. Well, I shouldn't guess, so I'd have to say no.
14
15
Q. Would it be fair to say that, you know, as the
15
16
Executive Director of the Redevelopment Agency of the City
16
17
of Huntington Beach, that up through the time you received
17
18
this June 12th, 2000, that Ezralow and Huntington Center --
18
19
the Ezralow Company was still an applicant?
19
20
MR. SHIPOW: Objection. Mischaracterizes his
20
21
position, I believe. And in any event is argumentative.
21
22
THE WITNESS: I don't know what the reason for
22
23
this was or what the status was on that date, to be honest
23
24
with you. I really wasn't tracking the issue.
24
25
///
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it
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BY MR. TUCHMAN:
Q. All right. Did you ever check to determine if
Ezralow or the Huntington Center Associates were ever
applicants on this project?
A. No.
MR. TUCHMAN: Okay. Ill ask the reporter to
mark for identification as Exhibit 48 —
MR. TEPPER: What?
MR. TUCHMAN: I'm sorry, Exhibit 17. Thank you,
Mr. Tepper.
(Plaintiff's Exhibit 17 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. — Item 48, and this came from the production of
the City. Do you recognize Exhibit 17?
A. Yes.. Q. What is Exhibit 17?
A. It's a memo from David Biggs via Howard Zelefsky
to the Council — I'm sorry, the Planning Commission.
Q. Okay. Did you review this before it went out?
A. No, I did not
Q. Did you receive acopy of this as a CO.
A. Yes, I did.
Q. Okay. And do you -- as the Executive Director of
58
the Redevelopment Agency of the City of Huntington Beach,
did you approve this memo or did you object to it or did
you do neither9
A. I did neither.
Q. Okay. Let's move to the next memo. This one is
from Kane, Ballmer & Berkman. It's a one -pager. It says
June 15th, 2000, from Murray Kane to David Biggs. Do you
know why this was published?
A. No, I do aot
Q. This should be an attorney/client document;
right?
A. It doesn't say that on there, so I don't know
what it should be.
Q. Do you have any — did you discuss this document
with Murray Kane?
A. No.
Q. Do you know why this document was made a part of
the public record?
A. No.
Q. Okay. Let's see, 'The following is a brief
outline of the statutory basis justifying the Agency's
joining as applicant or co -applicant in the application for
specific plan for Huntington Center within the Huntington
Center component of the Huntington Beach Development Plan."
Did you review this memo before it went out?
59
1 A. No, I did not
2 Q. Is there anything in this memo that you believe
3 is inaccurate?
4 A. I haven't read it to know that
5 Q. Take a moment to read it: It's one page.
6 A. I'm not an expert
7 MR. SHIPOW: Calls for legal conclusions.
8 BY MR. TUCHMAN:
9 ( Q. No, as the Director -- as the City Administrator
10' and as the Executive Director of the Redevelopment Agency
11 of the City of Huntington Beach, I want to know if this is
12 correct or not.
13 MR. SHIPOW: That doesn't permit him to make
14 legal conclusions. It doesn't qualify him as an expert.
15 MR. TEPPER: Do we have a question? Let's go to
16 the question.
17 THE WITNESS: I don't know anything. I don't
18 know of anything that's not appropriate --
19 MR. TEPPER: Okay.
20 THE WITNESS: -- not being an expert on the
21 subject.
22 BY MR. TUCHMAN:
23 Q. That's fair. Now, did you ask Mr. Kane to write
24 this memo?
25 A. No.
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Q. Did you, after you signed the memo, which is
dated June 5th, 2000, call any counsel to find out if what
you did was legal?
A. "Counsel" as in c-o-u-n-s-e-l?
Q. Yes.
A. I don't recall talking to anybody in the legal
field about it
Q. Did you ever make the comment to anybody, an
elected person or a person that's an employee of the City,
that you felt what you did was illegal and invalid?
A. No.
Q. Did you ever make the comment that you regret
what you did?
A. That I regret it? I don't recall saying I regret
it
Q. Did .you use the words to that effect?
A. I felt if we had the authority to initiate a zone
change, a memo should not have been necessary.
Q. You said you were sorry you did it?
A. I wouldn't say I was sorry I did it
Q. Take a look at the next document within 17, City
of Huntington Beach Request for Redevelopment Agency
Action, submitted by Ray Silver, prepared by David Biggs.
Did you review — this is for the Council meeting dated
June 19th, 2000.
61
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2
3
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7
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1 Did you review the submission which was attached
1
2 hereto as the last three pages of Exhibit -- the last four
2
3 pages of Exhibit 17 before it was submitted?
3
4 , A. I did not — what do you mean by "submitted"?
4
5 You mean before the agenda went to Council?
5
6 Q. Correct.
6
7 A. Yeah, I do review every document, or at least
7
8 initial every document that goes to Council.
8
9 Q. Did you initial this one?
9
l0 A. I don't see my initials on this one.
10
11 Q. Okay. Why does it say, "prepared by Biggs," but
11
12 "submitted by Ray Silver"?
12
13 A. The protocol of the Agency or the City is that
13
14 the Director who is the expert in the area prepares the
14
15 document, but from a chain of command point of view, since
15
16 I report to the Council, then it has to go through me to
16
17 Council:.
17
18 Q. Did you approve the last four pages of
18
19 Exhibit 17, which is the Request for Redevelopment Agency
19
20 Action?
20
21 A. Well, again, I don't see my initials on here.
21
22 Normally, I initial them if I had personally done that.
22
23 Normally, I do. Normally, I would.
23
24 Q. Okay. By the way, did you review this before it
24
25 was submitted?
25
62
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A. Submitted to me or to the Council?
Q. To the Council.
A. I don't recall because I don't see my initials on
here.
Q. Okay. Now, is there a shorthand term to
referring for a Request for Redevelopment Agency Action?
A. RAAs.
Q. Those are RAAs as opposed to RCAs?
A. Yeah, RCAs are a Council item, and RAAs as being
an agency action, a separate corporation.
Q. I71 get it straight. And who would you say you
rely on most heavily to assist you with Redevelopment
Agency actions?
A. Murray Kane and David Biggs.
Q. Okay. With respect to the approval of Ezralow as
the developer, did you play any part in that?
A. Well, I knew about it I agreed with it I
didn't actively participate in negotiations or discussions
with any parties
Q. I noticed in the closed session references in
1999 and some in 2000, your name is mentioned as one of the
negotiators. Would you describe yourself as a chief
negotiator?
A. I'm not in the meetings, if that's what you mean
by "negotiator." There's no question that as the City
63
Administrator and City Director I have the ultimate
responsibility to City Council or the Agency.
Q. Are you the negotiator -- are you currently a
negotiator involved with the OPA with Ezralow?
A. I wouldn't say I was a negotiator, no. I'm not
sitting in meetings.
Q. You're one of the persons that has to ultimately
approve what's done?
A. On its way to Council, yes
Q. Have you ever made a statement to the negotiators
that the Burlington issue has got to be cleared up, or
words to that effect?
A. I don't recall ever saying that.
Q. Have you instructed the negotiators to figure out
how to handle the Burlington Coat Factory issue?
A. I told them that I'm ultimately looking to the
primary property owner, the major property owner, to
determine the retail mix, and then we've got to decide what
to do based on it.
Q. Okay. And as part of your instructions -- as
part of your instructions to make Ezralow responsible to
deal with the issue just because of economic issues?
A. It's because they're the experts on the market
and the appropriate retail mix, and since they have the
major stake in the property. It seemed logical for those
64
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reasons that they would be the ones to determine the mix,
what uses make sense to be successful in the nature of the
market they're trying to get into. We're not experts in
that area.
Q. Has anybody -- have any of your negotiators said
to you that they want the City to use imminent domain power
to get rid of Burlington Coat?
A. Has anybody said that to me, I don't recall that.
Q. Has Ezralow or anyone from Ezralow said that to
you?
A. I don't recall them referring to imminent domain.
Q. Do you recall them referring to any use of police
power to get rid of Burlington?
A. I think it's premature. I think the whole
discussion is premature.
Q. That's not my question. Even though it may be
premature in your mind, has that been raised?
A. I don't recall.
Q. You've been -- you've been at some of the
meetings, the Council meetings or Redevelopment Agency
meetings?
A. Right.
Q. And you've heard the response relative to
Mervyn's and Burlington Coat. Have you responded -- have
you instructed staff to communicate or do something about
changing the current climate with respect to
Montgomery Ward's and Burlington?
MR. SHIPOW: Objection. Ambiguous about the
"climate."
MR. TEPPER: Yeah, I don't understand what that
means, if that's a reference to the fact that you've sued
the City and Mr. Silver individually, is that your climate
s or-
9 THE WITNESS: What climate are you referring to?
10 BY MR. TUCHMAN:
it
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65
Q. Have you instructed the City staff to find out
whether Ezralow can work with Montgomery Ward's and
Burlington to come to a resolution of the economic issues_
that exist?
A. I've told staff that obviously it's up to Ezralow
to work with all the property owners and decide whether or
not to include all of them to have a successful project.
Q. Has it ever been explained to you by anyone that
Ezralow wants to use the police powers of the Agency, to
essentially borrow those powers to eradicate Burlington
Coat Factory?
A. To eradicate them? I haven't heard that.
Q. Have you heard that they want to use the police
powers to get rid of Burlington Coat Factory?
A. Not at this point.
C.11
1 Q. Have you heard of anyone from Ezralow wanting to
2 use the police powers of the Redevelopment Agency and the
3 City to limit the amount of money that they would get,
4 assuming a condemnation is approved by your City Council?
5 A. I've never talked to anyone at Ezralow regarding
6 their terms or part of the lease cost or anything of that
7 with Ezralow.
8 Q. Have you discussed the Huntington Center or now
9 Crossings with EDAW, E-D-A-W?
10 A. No, I haven't.
i l Q. Do you know who they are?
12 A. Yes, they're an environmental firm.
13 Q. Have you discussed it with Donahue & Associates?
14 A. I don't know who they are.
15 Q. Have you ever heard of Donahue Novac?
16 A. No.
17 Q. Do you know what an F&E is, an F&E appraisal?
18 A. No.
19 MR. TUCHN AN: Okay. III ask the reporter to
20 mark for identification as Exhibit 18, Exhibit 18 is
21 Item 57, which was produced yesterday by the City, and take
22 a look at that.
23 (Plaintiffs Exhibit 18 was marked
24 for identification by the court
25 reporter and is attached hereto.)
67
1 BY MR. TUCHMAN:
2 Q.
Do you recognize Exhibit 18?
3 A.
Yes, I do.
4 Q.
What is Exhibit 18?
5 A.
It's an agenda item from the Redevelopment Agency
6 staff to the members of the Council that serve as the Board
7 of the
Agency dated July 5th.
8 Q.
And that was prepared by whom?
9 A.
Howard Zelefsky.
10 Q.
And this was, as a matter of protocol, submitted
11 by you directed to the Council?
12 A.
Yes.
13 Q.
And that was also initialed by you?
14 A.
Is what?
15 Q.
It's also initialed by you, sir?
16 A.
Yes, I did initial this, yes, sir.
17 Q.
Does that mean you reviewed it?
18 A.
It means I approved it. It may not necessarily
19 mean
I reviewed every line of it.
20 Q.
Okay. And did you ask that Exhibit 18 be amended
21 in any
way before it was submitted to the City Council?
22 A.
I don't recall asking for any changes in it.
23 Q.
Did you initial it as is?
24 A.
I believe so.
25 Q.
What determines whether you will get something --
68
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I it looks like this is an RCA combined with an RAA; is that
1
A. Yeah,
2 right?
2
Q. And what did they respond?
3 A. That's what it says.
3
A. That it could go — it could be part of the uses
4 Q. Okay. What determines when you have an RCA
4
based upon the specific plan document.
5 versus an RAA and an RCA with an RAA?
5
Q. When the SP was marked up by Montgomery Ward and
6 A. I know that if we're asking the Council to take
6
Burlington, did you review any of the markups of the
7 action, that it's an RCA; and if we're asking the Agency to
7
requested changes of the SP, or was that not your
8 take action, it's an RAA.
8
department?
9 Q. And in this case you're asking both to do
9
A. Not my department.
10 something?
10
Q. Okay. Now, is there anything in Exhibit 18 that
i l A. Yes.
11
was incorrect that you changed subsequently?
12 Q. Was the SP-13 approved?
12
A. I don't recall changing anything before or after
13 A. SP-13? You mean, the specific plan?
13
this was prepared.
14 Q. Yes.
14
Q. Okay. Do you communicate via e-mail with
15 A. Yes, it was.
15
anybody?
16 Q. Prior to this meeting, did you have conversations
16
A. Yes.
17 with anybody regarding the letters from Burlington?
17
Q. Okay. And do you communicate with Mr. Biggs via
18 MR. TEPPER: Letters from Burlington? What do
18
a -mail?
19 you mean?
19
A. I may have once or twice since we've worked
20 BY MR. TUCHMAN:
20
together. I don't use e-mail a IoL
21 Q. You saw letters from Burlington's counsel;
21
Q. Are you aware if all a -mails have been produced
22 right?
22
responsive to our documeni requests?
23 MR. TEPPER: Is that in connection with this?
23
A. I have no idea.
24 MR. TUCHMAN: Yeah.
24
Q. Have you ever instructed anyone at the City to
25 MR. TEPPER: You're referring to letters in
25
not provide Burlington with information which was
69 1 .71
1
connection with this?
1
requested?
2
MR. TUCHMAN: Oh, yeah.
2
A. No.
3
THE WITNESS: l do recall a letter from
3
Q. Have you instructed all employees appointed or
4
Burlington talking about their concerns about this specific
4
elected to cooperate with Burlington and respond to any
5,
plan, yes.
5
requests for information that Burlington has made?
6
BY MR. TUCHMAN:
6
A. I have not instructed them in any way.
7
Q. Okay. And did you have conversations with anyone
7
Q. Whose responsibility is it to determine what
8
regarding those letters?
8
information or documents are provided to Burlington when
9
A. I don't recall if I did. I may have made a
9
they are requested?
10
comment. I don't recall any specific discussion.
10
A. I guess it would be staff in concert with the
11
Q. What was your comment?
I
attorneys.
12
A. I don't know how it was. Well, I think my
12
Q. And staff would be the Planning Commission staff?
13
question was whether or not as per the Burlington letter,
13
A. Planning Department start, Economic Development
14
did the specific plan allow for a use like Burlington.
14
stab
15
That's what I asked. --_
15
Q. What's the difference between Economic
16
MR. TEPPER: I'm sorry, I didn't catch the
16
Development and Planning as far as the Redevelopment Agency
17
answer. Reread it, please.
17
is concerned?
18
- (Whereupon the previous answer was read
18
A. Planning is a department of the City of
19
back by the court reporter as requested.)
19
Huntington Beach Corporation. and the Economic Development
20
BY MR. TUCHMAN:
20
staff is almost all staff paid for by the Agency reported
21
Q. A use of Burlington?
21
to the Agency Board.
22
A. A retail use like a Burlington store in the
22
Q. Okay. And is Biggs higher than Zelefsky or are
23
mail. That was part of the issue, I think, in the
23
they the same level?
24_
Burlington letter.
24
A. Same, they're both directors.
25
Q. Right. And staff responded; correct?
25
Q. Okay. Are there any other departments other than
70 1 72
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1
the EDD and Planning that work — work on the development
1
Q. Have you been involved in any of the hiring of
2
of the specific plan and the development of The Crossings?
2
consultants relative to appraising any of the fixtures or
3
A. Probably the City Attorney's office.
3
real estate value at the mail?
4
Q. Okay. And generally what do they do?
4
A. No.
5
A. ProvWe legal support
5
Q. That, again, is Mr. Biggs?
6
Q. Anything — legal support in terms of the
6
A. Yes,
7
lawsuits or anything else?
7
Q. Okay. Have you written — I know we thought
8
A. Everything relating to development, provide all
8
there was a memo after June 5, but have you written any
9
the legal support, whether it's In terms of litigation or
9
memos other than the June 5 memo, which was marked
10
just in terms of whatever we prepare is legal
10
Exhibit 7 and you initialed, have you authored any other
11
Q. Who hires — who makes the decision — I may
i i
memos specifically relating to The Crossings?
12
have asked this one earlier. Who makes the decision to
12
A. I didn't author the memo. I just signed it. I
13
hire outside counsel?
13
don't recall any other documents that I've even initialed
14
A. City Attorney. She's elected.
14
since Jae Sth.
15
Q. Has the — has the Redevelopment Agency of the
15
Q. Okay. YouW going to be staying away from that?
16
City of Huntington Beach entered into any exclusive
16
A. On this subject I initial things all the time.
17
negotiation agreement or interim agreement with Ezralow?
17
Q. Okay. I.eNs move on then. Were you involved in
18
A. I believe that counsel authorized as to negotiate
18
the closed session on July 5, 2000, wherein "Burlington
19
with Ezralow for an OPA.
19
Coat Factory versus Redevelopment Agency" was discussed?
20
Q. Okay. But is there, in the interim, another
20
A. What was the date again?
21
agreement between the City or the Redevelopment Agency and
21
Q. July 5.
22
Ezralow?
22
A. Yes, I was.
23
A. I don't know of any.
23
Q. Okay. And flow long did that meeting last?
., 24
Q. Who would know the answer, to that question?
24
A. Well, I think we had a number of closed session
25
MR. SHIPOW: Objection. He just gave the answer
25
items, so I don't recall bow long this subject lasteL
73 1 75
1
to the question. Argumentative. Mischaracterizes the
1
Q. Okay. And was there — has there ever been a
2
testimony.
2
request by you to revoke your — the memo that you only
3
BY MR. TUCHMAN:
3
initialed but you didnt author, dated June 5, 2000, which
4
Q. Who would know the answer to this question?
4
we've marked as Exhibit r
5
A. Probably David Biggs.
5
A. Has there been a request for me to revoke it?
6
Q. Okay. Have you ever heard of such an interim
6
Q. Yes.
7
agreement being entered into between the Redevelopment
7
A. No.
8
Agency and a developer prior to the OPA being entered into?
8
Q. Have you discussed with anyone the revocation of
9
A. I don't recall one.
9
the memo which you initialed dated June 7, 2000?
10
Q. Okay. As of right now, however, the
10
A. No.
11
Redevelopment Agency is only dealing exclusively with
11
Q. June 5, 2000:
12
Ezralow on the OPA and no one else?
12
MR. TEPPER* Thank you.
13
A. Yeah, I believe right now we're in negotiations
13
BY MR. TUCHMAN:
14
with Ezralow about an OPA.
14
Q. The answer is "No"?
15
Q. Do you know when the OPA will be entered into?
15
A. No.
16
A. I don't know.
16
Q. Now, the City Council closed session on July 5,
17
_-
Q. Do you have an estimate as we sit here today?
17
it appeared under the City closed session — it says, "City
18
. A. Next 60 to 120 days, if we satisfactorily
18
Council pursuant to Government Code Section 54956.8, to
19
conclude the negotiations.
19
give instructions to Agency negotiators, Biggs, Silver,
20
Q. And if the negotiations aren't satisfactory, what
20
Jim Rabe, Murray Kane, and regarding negotiations with
21
happens?
21
Bryan Ezralow and Doug Gray, concerning negotiations for
22
A. Then they either build the mall without us or we
22
terms of the proposed disposition and development agreement
23
consider one with another party.
23
or owner participation agreement regarding the property
24
Q. You say, "they build the mail without us"?
24
located at 7777 Edinger. Instruction will concern both
25-_
A. Ezralow.
25
price and terms of payment."
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1 What does that mean, "both price and terms of
1
2 payment"?
2
3 MR. TEPPER: Are you speaking generically or as
3
4 to a particular item in that closed session?
4
5 MR. TUCHMAN: I'm referring to obviously a
5
6 specific item, but I want to know what "both price and
6
7 terms of payment" means.
7
8 MR. TEPPER: Well, if you're referring to a
8
9 instruction that may have been given that evening, you will
9
10 not get them. They are privileged.
10
11 BY MR. TUCHMAN:
11
12 Q. Then the question is general. What does that
12
13 mean when you refer to it that way?
13
14 A. My understanding is it was simply a section of
14
15 the Government Code to pat on the agenda.
15
16 Q. That I know, and that it's closed, but what I'm
16
17 asking is when I see "Instruction will concern both price
17
18 and terms of payment," and I see it repeatedly, what does
18
19 that mean? '
19
20 A. It refers to the financial relationship through
20
21 an OPA that's negotiated between Ezralow and the Agency.
21
22 Q. Now, the Agency is not buying the property?
22
23 A. No, but obviously an OPA is a final agreement in
23
24 terms of what we're going to pat in and what they're going
24
25 to put in, so that's what it refers to.
25
77
1
Q. Do you know how the City of Huntington and/or the
1
2
Redevelopment Agency is going to raise the money to fill
2
3
the gap?
3
4
A. The assumption is to whatever extent we do put
4
5
any money in, it will create revenue for the project that
5
6
we don't currently get.
6
7
Q. Do you know how that money will be raised?
7
8
A. Either sales tax or an increase in property tax.
8
9
Q. Do you know how much the sales tax could increase
9
10
as a result of this?
to
11
A. Not until we get a better definition of the
11
12
retail mix and the projection of the revenues, we would
12
13
then do a Pro Forma and get a sense of what could be
13
14
generated.
14
15
Q. It says here — I notice it's repeated over
t5
16
and over — it says your name, "Ray Silver, relative
16
17
negotiators," you're not really in the front lines of the
17
18
negotiation?
18
19
A. I'm the boss. The back stops with me.
19
20
Q.. Okay. And I think --
20
21
MR. TEPPER: Sign memos.
21
22
THE WITNESS: Yeah, I initial memos.
22
23
BY MR. TUCHMAN:
23
24
Q. I think --
24
25
A. It sounds sad.
25
78
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13URLINGTON V. HUNTINGTON CENTER
Q. I think even Mr. Kane was not present at that. I
think he was out of town. Am I right about that?
A. I don't recall. Murray did miss one. I don't
recall which one Murray missed.
Q. And if he's not there, someone is there in his
place?
A. From his firm, yes.
Q. July 5, was that the longest meeting on record?
A. Is that the one that went till 2:00 o'clock in
the morning?
Q. Yeah.
A. No, the record, I think, is 4:30 in the morning.
Q. All right.
MR. TUCHMAN: III ask the reporter to mark for
identification as Exhibit —
MR. SHIPOW: — 19.
MR. TUCHMAN: Thank you.
BY MR. TUCHMAN:
Q. -- 19. This is the RAA.
MR. SHIPOW: Can I get a copy?
(Plaintiffs Exhibit 19 was marked
for identification by the court
reporter and is attached hereto.)
THE WITNESS: You're going to be able to come.to
a Council meeting and know what we're talking about.
79
MR. TUCHMAN: Not passible.
BY MR. TUCHMAN:
Q. This is the RAA, and this is a Council meeting,
July 17th, 2000. And my question is — it's three pages.
Do you recognize Exhibit 19?
A. Yes, I do.
Q. What is Exhibit 19?
A. It's an agenda item from the Agency staff to the
Agency regarding the contract for consultant services for
its Edinger Corridor Economic Development Action Plan and
Specific Plan.
Q. And did you read this before you approved it?
A. Most of it.
Q. Okay. And did you correct any drafts of this?
A. Not that I recall.
Q. Okay. And what action was taken on July 17.
2000?
A. Council approved the action requested by the
Agency staff.
Q. And EDAW was retained?
A. Yea
Q. What role, if any, does EDAW have towards the
Huntington Center?
A. Well, as I understand it, they're doing the —
they're preparing the Economic Development Action Plan and
80
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1
the SpeciRe Plan for the Edinger Corridor.
1
2
BY MR. TUCHMAN:
2
3
Q. As you sit here today, are there any documents in
3
4
your office pertaining to Burlington Coat Factory?
4
5
A. Na
5
6
Q. As you sit here today, are there any memos or
6
7
actions that you are contemplating taking that pertain to
7
8
Burlington Coat Factory?
8
9
A. No.
9
10
Q. Okay.
10
11
MR. TUCHMAN: Let's go off the record for a
11
12
second. I think we're just about done with this witness.
12
13
(A brief recess was taken.)
13
14
BY MR. TUCHMAN:
14
15
Q. What caused you to go downstairs to Zelefsky's
15
16
office once you received the June 5 -- the memo dated
16
17
June 5 that's Exhibit 7?
17
18
A. Because when I read the memo, it seemed like, Why
18
19
am I doing it? It seems like a normal procedure, so I'm
19
20
wondering why are we doing a memo for what we normally do.
20
21
Q. That's the reason you went downstairs?
21
22
A. Yes.
22
23
Q. Okay. Are you — have you been asked to provide
23
24
any declarations in the lawsuit with — between Burlington
24
25
and Ezralow?
25
81
1 A. No.
1
2 Q. Okay. Have you been asked to prepare any
2
3 synopses of anything relating to the Ezralow/Burlington
3
4 lawsuit?
4
5 A. No.
5
6 Q. Have you had any conversations about this
6
7 deposition with anyone from the City?
7
8 A. Other than saying Cm coming here, no.
8
9 Q. Did you discuss with Mr. Biggs his deposition?
9
10 A. No.
10
11 Q. Did you discuss with Mr. Duran his deposition?
11
12 A. No. Other than asking Gas this morning when he's
12
13 coming.
13
14 Q. Okay. I think that's tomorrow.
14
15 A. Yeah.
15
16 MR. TEPPER: Did he know that?
16
17 THE WITNESS: Yeah, he said he's coming tomorrow
17
18 morning.
18
19 MR. TEPPER: Okay. I just want to make sure.
19
20 MR. TUCHMAN:- Good.
20
21 BY MR. TUCHMAN:
21
22 Q. Have you — I want to make sure that I covered
22
23 all conversations that you had with Ezralow and Ezralow's
23
24 attorneys. Are there any other facts or any other
24
25 conversations you can relate regarding conversations with
25
82
Ezralow?
A. I don't recall any right Dow.
Q. Do you recall any conversations, other than what
you've testified about, any conversations with Ezralow or
Ezralow's attorneys regarding Burlington Coat Factory?
A. I don't recall Burlington coming up.
Q. Okay. Do you know Council Member Julian?
A. Yes.
Q. Have you ever had a conversation with her
regarding Burlington Coat Factory?
A. Yes.
Q. And when was that?
A. I think it was last week
Q. What was said in that conversation?
MR. TEPPER: Just make sure it's not in closed
session. Was it in closed session?
THE WITNESS: No, it was not in closed session.
That probably Burlington and Montgomery Ward's was going to
be in the center.
BY MR. TUCHMAN:
Q. And why did she say that?
A. I said that
Q. Oh, you said that?
A. YeaL
Q. And what was the basis of your saying that?;
83
A. Well, just because that's what I've been
operating on until I hear otherwise.
Q. Why are you going to operate on that until you
hear otherwise?
A. Because I'm assuming it's a matter for Ezralow to
determine what retail ma it should be.
Q. And what was her response for your saying that
Montgomery Ward's and Burlington are going to be in the
center?
A. I don't recall her saying anything.
Q. Is there something from Ezralow that was stated
to you that caused you to say that Montgomery Ward's and
Burlington would remain in the center?
A. No.
Q. Did you have a conversation with Council Member
Bower regarding Burlington Coat Factory?
A. Yea
Q. And when was that?
A. That was a week or two ago.
Q. And who else was present?
A. Just him and I.
Q. What did you talk about?
A. Well, we always go over all the issues and
basically said the same thing.
Q. Said what?
84
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I A. That — I'm trying to recall — what did I say?
I
A.
No.
2 I don't recall exactly what I said.
2
Q.
Did you talk to Mr. Speaker about it?
3 Q. Did Bower express to you some question as to why
3
A.
No.
4 Burlington Coat Factory basal been talked to by the City
4
Q.
Did you have a conversation with Mr. Chapman
5 prior to the litigation?
5
about Burlington Coat Factory?
6 A. I think some time ago he may have asked me that
6
A.
You know, I did meet with him on the art center.
7 question.
7
I don't
recall as talking about this.
8 Q. What was your response?
8
Q.
You spoke with Chapman regarding the June 5,
9 A. I believe all discussions should be going'oe
9
2000, memo?
10 between Ezralow and Burlington. That's where they should
10
A.
I don't recall if I did or did not.
l 1 be right now.
11
Q.
And is it Kerins, K-e-r-i-n-s?
12 Q. That's what you told him?
12
A.
No, I didn't talk to him.
13 A. Yes.
13
Q.
You didn't talk to him. And the far left, the
14 Q. Did you direct the Economic Development
14
Planning Commissioner, her name is —
15 Department, including Mr. Duran and Mr. Biggs, to not have
15
A.
January Shomaker.
16 any meetings with Burlington Coat Factory?
16
Q.
Yeah, Shomaker.
17 A. No.
17
A.
No, I didn't talk to her.
18 Q. Do you know if such a decision was made?
18
Q.
I think there's one more Planning Commissioner,
19 A. We never talked about that being a decision.
19
Livengood. Did you speak to him about it?
20 Q. Did you have a conversation regarding Burlington
20
A.
No.
21 Coat Factory with the Mayor?
21
Q.
Did you see his memo dated June 22, 2000?
22 A. You know, I might have with all the Council
22
A.
Just briefly. I didn't really read it in
23 members and go over all the items, so I may have talked
23
detail
,
24 about it, but I don't recall what we talked about on it.
24
Q.
That's the memo where he said any SP should have
25 Q. What did the Mayor say about it?
25
Burlington and Montgomery included?
a
85
87
1
A. Well, I don't think the Mayor can participate in
1
A. I think there was some reference to that at the
2
these discussions anymore.
2
Council meeting. That's the only thing I recall about it.
3
Q. That's right.
3
Q. Did you -- as the Executive Director of the
4
A. I would be surprised if we talked about it. If
4
Redevelopment Agency of the City of Huntington Beach, do
5
we did, it would be very brief.
5
you agree or disagree with Mr. Livengood's memo?
6
Q. He's disqualified?
6
A. Well, not recalling everything it said and having
7
A. He's been cautioned not to participate in some of
7
been told that the specific plan did not preclude
8
the subjects.
8
Burlington, I didn't see anything to talk about.
9
Q. What about Tom Harman? Have you talked to him
9
Q. Okay. All right. Do you -- is there anything
10
about Burlington Coat Factory?
10
currently on your desk which pertains to Burlington Coat
11
A. I don't recall talking to Tom.
11
Factory or the Huntington Center?
12
Q. What about — is it Shirley Detlof ?.
12
A. No.
13
A. Yeah, probably just the same. I meet with
13
MR. TUCHMAN: Okay. I don't have any further
14
everyone every one or two weeks, so it may come up in the
14
questions at this time.
15
course of talking about every other project.
15
MR. SHIPOW: I don't have any questions.
16
Q. What are the other Council members? Did I catch
16
THE WITNESS: Okay. On the road.
17
them all? Is it Kerins?
17
MR. TEPPER: Okay. Hold on. You've got to
18
A. No. Dave Sullivan, but Dave is hardly around.
18
stipulate.
19
Q. Did you talk to him about Burlington Coat
19
MR. SHIPOW: Can we just incorporate the prior
20
Factory?
20
stipulation?
21
A. I don't recall talking to him about it because we
21
MR. TUCHMAN: Just as long as you change the
22
didn't have our bi-weekly status meeting recently.
22
name. I had one reporter who was very literal and didn't
23
Q. We're almost done, Mr. Silver. With respect to
23
realize what she was doing, so everybody's name was
24
the planning procedures, did you talk to Mr. Biddle with
24
"Ray Silver."
25
regard to the Burlington Coat Factory?
25
(Discussion held off record.)
86 1 88
22 (Pages 85 to 88)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RAY SILVER, 07.25.00
B INGTON V. HUNTINGTON CENTER
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MR. TUCHMAN: Then 1 propose the following: That
the reporter is relieved of her duties under the Code with
respect to maintaining the original and obtaining,
signature; that the transcript be sent to Mr. Silver, care
of Mr. Tepper, at Murray Kane's office; that a cover letter
accompany it with a CC to myself and Mr. Shipow; that
Mr. Silver will have 30 days after receipt by Mr. Tepper of
the transcript to read it and sign it. Mr. Tepper will
have the responsibility to notify all parties of the
changes to the transcript and the fact that it's been
signed. Mr. Tepper then will turn the transcript over to
me. The original transcript will be made available upon
any reasonable request in any proceeding in this matter.
In the event the transcript is not signed, not corrected,
then an unsigned, certified copy will be useful for all
appropriate purpose as if it were the original.
MR. SHIPOW: So stipulated.
MR. TEPPER: That's fine.
MR. TUCHMAN: Mr. Silver, is that okay?
THE WITNESS: Sure.
MR. TUCEiMAN: Fine. Thank you.
(Whereupon the deposition concluded at 3:06 p.m.)
89
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
23 (Page 89)
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RAY SILVER, 07.25.00
BURLINGTON V. HUNTINGTON CENTER
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3ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RAY SILVER, 07.25.0W
BURLINGTON V. HUNTINGTON CENTER
44:19,22 45:21
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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express 49:8,12 85:3
expressed 26:18 46:4
extent 78:4
ezralow 1:10,11 2:10
2:11 24:9,12,13,24
25:9 27:6 29:14,23
30:2 34:15,21 40:9
41:9,16,19 49:17
49:24 50:14 55:11
57:8,18,19 58:3
63:15 64:4,21 65:9
65:9 66:12,15,19
67:1,5,7 73:17,19
73:22 74:12,14,25
76:21 77:21 81:25
82:23 83:1,4 84:5
84:11 85:10
Ezralow's 25:25
82:23 83:5
Ezralow-related
49:18
Ezralow/Burlington
35:8 52:5 82:3
E-D-A-W 67:9
e-mail 5:22 71:14,18
71:20
e-mails 71:21
----F-fact 24:19 41:18
46:19 66:6 89:10
factory 1:5 2:5 25:3
25:10 29:1 40:25
49:17 52:16 64:15
66:21,24 75:19
81:4,8 83:5,10
84:16 85:4,16,21
86:10,20,25 87:5
88:11
facts 38:3,6,10 82:24
Page 92
fading 51:20
fair 27:6 57:15 60:23
Fallon 14:7,13,20
15:3 22:6,9
far 41:1 72:16 87:13
Fauland 49:6
fax 5:20,22,25 36:8
36:10,14,18,20
57:5
faxed 36:22 55:17
56:17 -
Feel 55:13
feelings 47:25 48:1
felt 61:10,17
few 33:7,8 36:3
field 61:7
Fifth 3:9
Figueroa 3:14
figure 64:14
file 31:14
filed 35:4 46:18
files 20:5,8,22 21:25
fill 78:2
filled 17:8,23
final 33:16 77:23- .
financial 24:12 77:20
find 37:1 42:18 61:2
66:11
fine 45:12 89:18,21
finish 9:16 47:19
firm 67:12 79:7
first 5:7 6:8 25:2,4
25:19 27:3 31:5,8
38:20 39:17 49:16
49:21
five 56:7,12.14
five-minute 51:17
fixtures 75:2
flexed 56:9,13
Floor 2:24 3:4,9
Flynn 21:14,22
focus 12:6,8
Fogarty 21:4,5,7,22
following 59:20 89:1
follows 5:9
force 7:12
form 33:16 45:10
Forma 78:13
formal 46:15
format 48:21
four 62:2,18
free 55:13
Fresno 9:6,15 10:1,4
Friday 56:8
from 4:11,12,13 8:19
8:21 12:3,9 13:19
14:15 23:25 24:3
25:9 26:4,11,12
30:12,18 31:13
35:21,22,23 36:13
50:21 52:15 53:20
55:8 57:7 58:15,19
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RAY SILVER, 07.25.00
BUkLINGTON V. HUNTINGTON CENTER
59:6,7 62:15 65:9
67:168:5 69:17,18
69:21703 75:15
79:7 80:8 82:7
84:11
front 23:2130:9
43:22 78:17
frustrated 46:6
Rill -time 9:23 10:2,3
functions 13:13,15
13:22 20:12
further 88:13
future 39:11
ME 67:17,17
F-a-x 36:12
F-1-y-n-n 21:14
F-o-g-a-r-t-y 21:4
G 54:12 55:3,4
Gail 19:5
gap 78:3
garbage 13:19
gave 5:216:21 73:25
Geez 6:8 25:13
general 24:8 37:22
39:5 77:12
generalist 12:6,7,8
generally 24:19
25:20 29:16,19
73:4
generated 54:8 78:14
generically 77:3
gets 56:15
getting 16:23 19:18
33:20 55:21
give 5:19 8:8 32:25
44:4 76:19
given 45:22 77:9
giving 8:19
go 14:8 20:16 27:18
29:14 32:25 33:9
34:3 37:1,4 46:11
52:2 53:6 60:15
62:16 71:3 81:11
81:15 84:23 85:23
goes 20:15 62:8
going 16:23 19:7
20:16 26:9,15 27:2
34:16,17 37:6 53:9
75:15.77:24,24.
78:2 79:24 83:18-
84:3,8 85:9
good 15:156:16,22
82:20
govern 39,:11 .
Government 17:3
76:18 77:15
graduate 9:6,14
Gray 76:21
guess 27:23,24 42:25
57:14 72:10
guessing 54:21
guidelines 39:11
Gus 82:12
guys 23:21
G: j m/crossings/au-
53:24
half 11:1
handle 64:15
handles 17:15
happened 35:15
happens 74:21
hardly 86:18
Harman 86:9
having 5:7 49.9,14
52:6 88:6
head 8:13
heads 13:16 14:18
hear 84:2,4
heard 25:2 38:20,20
65:23 66:22,23
67:1,15 74:6
hearing 38:21
heavily 63:12
held 13:4 14:13
88:25
help 21:20 30:2,4
her 5:21 14:10,16,19
16:2121:17 22:7
56:3 83:9 84:7,10
87:14,17 89:2
Herb 49:6
hereto 19:13 53:16
57:3 58:13 62:2
67:25 79:23
Hess 49:6
hierarchy 17:21,25
18:3
high 8:22,23 9:1,3
40:13
higher 17:25 18:3
72:22
highest 18:8
him 33:5 34:8 38:11
38:12 42:8 44:4
45:5,6 48:3,5 52:6
53:1 60:13,14
84:21 85:12 86:9
86:19,2187:6,12
87:13,19
hire 19:1 73:13
hired 16:11
hires 73:11
hiring 19:3 75:1
hold 12:25 52:17
88:17
honest 7:2 33:6
36:2142:19 57:23
hopefully 11:14
Hotel 6:9
Howard 30:12,18
33:1,3,20 34:9
43:8 49:3 52:10
56:1,12 58:19 68:9
Hughes 50:5,6,8
huh 15:10 45:3
huh-uh 8:13
huntington 1:5,9 2:5
2:9 5:17 6:13,25
7:6 11:7,8,11,21
12:19 13:1,3,7,13
13:23 14:21 15:17
15:24 16:3 17:1,4
20:23 22:25 23:8
24:9,20 25:4,9
26:9,15 29:8 30:4
36:18 37:22,24
39:5,7 43:17 46:14
57:17,18 58:3 59:1
59:23,23,24 60:11
61:22 67:8 72:19
73:16 78:1 80:23
88:4,11
Hutton 19:5
hypothetical 27:9,10
H.B 36:13
idea 23:4 43:3 54:10
55:3 71:21
identification 19:8
19:12 53:10,15
56:2157:2 58:7,12
67:20,24 79:15,22
identified 53:18
illegal 61:10
illustrations 29:18
immediate 12:10
13:24 43:1
imminent 28:21 65:6
65:11
improperly 47:5
inaccurate 60:3
INC 1:6 2:6
include 66:17
included 87:25
including 85:15
inclusive 1:12 2:12
Incomplete 27:10
incorporate 88:19
incorrect 46:20
71:11
increase 78:8,9
independently 43:2
43:12,24 44:8,13
INDEX 4:1
indicated 48:3 49:3
individually 25:17
66:7
information 4:19
71:25 72:5,8
initial 41:24 49:10
49:14 62:8,9,22
68:16,23 75:16
78:22
initialed 31:10 32:22
35:4 42:2,25 43:1
48:9 50:168:13,15
75:10,13 76:3,9
initials 31:15 33:12
62:10,2163:3
initiate 33:2134:5
34:11 45:8 48:22
56:5 61:17
initiated 46:2 48:24
48:25
instructed 4:23
64:14 65:25 66:11
71:24 72:3,6
instruction 76:24
77:9,17
instructions 64:20
64:21 76:19
interim 73:17,20
74:6
invalid 61:10
involved 16:22 22:23
30:5 64:4 75:1,17
involvement 26:5
issue 55:14 57:24
64:11,15,22 70:23
issued 11:16,18
issues 12:6,814:17
14:23 15:16 16:8
16:2164:22 66:13
84:23
Italian 29:18
item 4:14 48:14,20
53:18 56:2157:5
58:15 63:9 67:21
68:5 77:4,6 80:8
items 75:25 85:23
James 4:12 49:5 50:4
50:6,8 54:16 55:5
55:22 56:7,9 57:7
Jane 4:11,12 49:5
53:20 54:15,16
55:5,5,8,22 56:4,7
56:9 57:7
January 10:12 87:15
jeans 53:2,3
Jim 76:20
JJ 54:16
JM 54:14,17
JM/crossing 55:5
Joan 21:14
job 16:24 22:11
joining 59:22
journal 22:3
journalist 12:7
JR 3:13
Julian 83:7
july 1:20 2:23 4:15
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 93
5:1 12:20 40:6
68:7 75:18,21
76:16 79:8 80:4,16
June 4:11,12 30:12
31:6,7 32:6,7,10
36:14,23 38:3,6,10
38:12,18,21,21
39:4,13,13,15,21
39:23 40:2,15 42:1
42:23 45:14,15,15
47:12,18 48:8 49:1
49:10,14,22 50:2
50:12,13,24 51:3,8
53:20,21,22 55:9
55:23 57:5,6,6,18
59:7 61:2,25 75:8
75:9,14 76:3,9,11
81:16,17 87:8,21
just 7:3 20:16 29:24
31:9 33:11,16,21
36:3 38:11,12 41:8
45:10 46:10 51:19
64:22 73:10,25
75:12 81:12 82:19
83:15 84:1,21
86:13 87-22 88,19
88:21
justifying 59:21
kane 3:13 31:3 59:6
59:7,15 60:23
63:14 76:20 79:1
Kane's 89:5
keep 16:9 20:19,21
22:3
kept 22:6
Kerins 86:17 87:11
kind 8:18 24:13 41:7
54:21,23
knew 34:5 39:15
63:17
know 7:2 16:9 20:16
20:18 22:2,8,20
23:2,12 24:6,8
25:13 26:2 29:2,5
29:17 30:21 31:2,4
31:9,18 32:2,3,4,6
32:6,7,12 33:2,4,5
33:5 34:25 35:22
35:24,24 36:20,22
40:5 41:1,7,11,12
41:13,14,18,21
42:16 44:15,19
48:24 49:19 50:1
50:10 51:6 54:7,12
54:16 55:4,17 56:9
56:16 57:13,15,22
59:8,12,17 60:4,11
60:17,18 67:11,14
67:17 69:6 70:12
73:23,24 74:4,15
74:16 75:7 77:6,16
78:1,7,9 79:25
82:16 83:7 85:18
85:22 87:6
knowing 34:22
knowledge 28:25
K-e-r-i-n-s 87:11
L 3:3
La 8:25
language 37:18
last 11:24 39:17
53:22 62:2,2,18
75:23 83:13
lasted 75:25
later 8:8 32:1
law 2:23 7:13
lawsuit 81:24 82:4
lawsuits 30:5,6,7
73:7
lease 41:5,7,8,12,13
67:6
least 62:7
leave 12:12 22:9
left 10:1 14:7 16:7,9
22:9 87:13
legal 23:17 26:11,19
34:17 46:19 60:7
60:14 61:3,6 73:5
73:6,9,10
legally 28:15
legend 36:8,10,16
less 53:3
let 20:16 38:19 40:20
47:18
letter 4:12 57:6 70:3
70:13,24 89:5
letters 36:3 69:17,18
69:21,25 70:8
Let's 19:9 36:6 59:5
59:20 60:15 75:17
81:11
level 72:23
Liability 1:9,10,11
2:9,10,11
license 11:15,19
licenses 11:16,18
like 8:2129.17 34:4
34:6 44:18 49:5
69:1 70:14,22
81:18,19
limit 67:3
Limited 1:9,10,11
2:9,10,11 .
line 28:22 68:19
lines 78:17
list 29:18
listen 27:3,3 28:17
literal 88:22
litigation 34:14 35:8
35:13 49:16.23
50:2 52:5 73:9
85:5
little 16:22 26:17
51:18
Livengood 87:19
Livengood's 88:5
LLP 3:8
located 2:24 76:24
logical 64:25
long 10:14,18,24
11:3 12:1 13:4
14:8,11,14 15:10
21:5,7 75:23,25
88:21
longer 55:11
longest 79:8
look 23:19 27:2
29:17 30:8 36:6
37:4,6,18 51:22
53:22 54:7 61:21
67:22
looking 28:5 36:25
64:16
looks 69:1
Los 2:25 3:5,10,15
5:2
lot 11:13 71:20
L.A 8:25 9:5,10
made 24:11,23 26:1
46:22 47:7 48:16
51:2 59:17 64:10
70:9 72:5 85:18
89:12
Madera 4:11 10:6,7
10:9 53:20 54:15
55:5,8
Main 5:17
mainly 16:20
maintain 20:5,8
21:25
maintaining 89:3
major 26:6 28:6 41:8
64:17,25
majority 40:10
make 8:6,& 19:9 30:8
33:9 46:2,15 60:13
61:8,12 64:2165:2
82:19,22 83:15
makes 73:11,12
ma1170:23 74:22,24
75:3
malls 29:21
man 14:3
Management 56:15
manager 7:7 10:8,17
10:18 11:2,4
Manager's 9:25
managing 13:10
many 6:3 9:17 23:2
25:12.13
RAY SILVER, 07.25.00
BURLINGTON V. HUNTINGTON CENTER .
map 39:19,25 43:19
55:12
March 41:17,20
mark 3:8 19:8 53:10
56:20 58:7 67:20
79:14
marked 4:9 19:11
53:14 57:1 58:11
67:23 71:5 75:9
76:4 79:21
market 29:20 64:23
65:3
markups 71:6
Martin 15:14,15
matter 50:4 68:10
84:5 89:13
may 8:8 14:7,14,15
20:16 28:20 35:17
53:19,19 55:24
65:16 68:18 70:9
71:19 73:11 77:9
85:6,23 86:14
Maybe 53:6
Mayor 44:15 50:24
51:2 85:21,25 86:1
mean 13:19 14:22
16:18,18 28:21
36:12 40:21 41:3
50:18 54:6 55:19
62:4,5 63:24 68:17
68:19 69:13,19
77:1,13,19
means 16:20 55:3,4
66:6 68:18 77:7
medication 8:18
meet 86:13 87:6
meeting 24:7,16,19
25:21 31:14 45:1
47:4 61:24 69:16
75:23 79:8,25 80:3
86:22 88:2
meetings 23:13
63:24 64:6 65:20
65:20,21 85:16
Melanie 14:7,13,20
15:3 16:7
Member 83:7 84:15
members 44:16
45:14 49:5,9 68:6
85:23 86:16
memo 4:11,13 30:12
31:5,18,22 34:4,10
34:14 35:7 36:1,6
37:20 42:2,12,13
42:14,16,25 43:15
43:22 44:15,21,22
45: 7,15,18, 22 46:1
46:11 47:12 48:2,4
48:8,8 49:2,10,14
50:2,13,25 51:3,7,8
51:9,14 53:21,22
55:10,23 58:19
59:2,5,25 60:2,24
61:1,18 75:8,9,12
76:2,9 81:16,18,20
87:9,21,24 88:5
memorandum 30:18
38:13
memos 22:3 75:9,11
78:21,22 81:6
mentioned 15:22
20:25 29:13 63:21
Mervyn's 65:24
middle 6:24
might 29:17,20
34:24 85:22
Mike 11:23 12:10
13:8
military 9:7
mind 26:1 65:17
minimum 20:19
Minutes 23:25 24:3
24:4
Mischaracterization
44:1
mischaracterized
47:20
Mischaracterizes
37:9,10 47:17
57:20 74:1
miss 22:6,9 79:3
missed 79:4
misstatement 42:7
misstates 28:12 43:7
mix 26:7,10 27:4,5
28:11 29:25 30:1
64:18,24 65:1
78:12 84:6
moment 60:5
Monday 56:8
money 67:3 78:2,5,7
Montgomery 40:11
40:23 66:2,12 71:5
83:18 84:8,12
87:25
months 16:16
more 13:12 16:22
23:7,10 25:14,15
41:22 42:4 43:3
52:2 87:18
MORGAN 3:8
morning 79:10,12
82:12,18
most 16:5 23:17
27:17 63:12 80:13
motion 46:15,18,21
48:17
move 59:5 75:17
moved 11:13 25:4,6
much 78:9
Mulligan 6:14,15,22
Murray 59:7,15
63:14 76:20 79:3,4
89:5
Page 94
must 46:15
myself 89:6
name 5:13 11:24
15:13 21:3 63:21
78:16 87:14 88:22
88:23
names 6:7
nationwide 16:15
nature 65:2
necessarily 0.8:18
necessary 37:23 39:6
45:6 61:18
necessity 43:25
need 8:12 15:13
47:18
needed 32:25
negotiate 73:18
negotiated 77:21
negotiation 73:17
78:18
negotiations 24:9
63:18 74:13,19,20
76:20,2I
negotiator 63:23,25
64:3,4,5
negotiators 63:22
64:10,14 65:5
76:19 78:17
neither 59:3,4
never 41:13 42:19,19
42:21 67:5 85:19
new 14:10 16:10,11
23:23 37:2
newest 6:20
newspaper 47:14
next 39:10 40:19
41:15 43:15 44:10
59:5 61:21 74:18
niche 29:19
nobody 31:23
nods 8:13
None 4:20,24
normal 81:19
normauy 46:10
62:22,23,23 81:20
north 40:13
notes 22:6
nothing 16:8 41:13
notice 4:10 19:9,16
19:23 20:15 46:25
78:15
noticed 47:5 54:6
63:20
notify 89:9
Novac 67:15
November 12:3,9,12
12:19 13:5 16:12
16:13,14 21:9
number 5:16,20,20
5:22,24 20:19
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
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13UtINGTON V. HUNTINGTON CENTER
23:11 36:18,21
75:24
Oakland 11:2,3
oath 7:12
object 59:2
Objection 24:15 27:9
32:11,16,17 35:17
37:9 41:2 44:1
52:17 54:11 57:20
66:3 73:25
objections 28:4
obligates 7:14
obtaining 89:3
obviously 27:2 28:5
28:15 42:12 66:15
77:5,23
occurred 24:6
October 14:15
off 81:11 88:25
office 9:2515:2,20
20:5,8,20,21,23
31:9,12,23 32:2
33:16 73:3 81:4,16
89:5
Offices 2:23
official 18:8
Oh 38:18 70:2 83:23
old 51:20
older 51:22
oldest 6:19
once 55:24 71:19
81:16
one 6:8,9,16,17,19
6:19,20 7:3,17
15:10,13 16:13
18:22 25:19 28:10
29:9 36:4 48:16
56:13 59:5 60:5
62:9,10 63:2164:7
73:12 74:9,12,23
79:3,4,9 86:14
87:18 88:22
ones 65:1
one -page 30:12
one -pager 59:6.
ongoing 34:14 50:2
only 74:1176:2 88:2
OPA 41:10 64:4
73:19 74:8,12,14
74:15 77:21,23
operate 84:3
operating 44:17 45:7
46:2 84:2
operations 13.11
opinion 42:24
opportunity 8:5
opposed 63:8
orange 1:2 2:2 8:24
Order 34:20
Ordinance 46:13
organizational 15:8
.15:10,11
original 37:2 38:16
89:3,12,16
other 7:6 11:19
12:25,25 17:3,13
20:17,19 21:10,19
24:19 28:10 29:10
29:21,22 47:15,24
48:149:5,13 52:20
72:25,25 75:9,10
75:13 82:8,12,24
82:24 83:3 86:15
86:16
otherwise 44:3 84:2
84:4
out 20:15,18 27:1
32:24 36:22 42:18
51:16 53:1,7 58:21
59:25 61:2 64:14
66:11 79:2
outline 59:21
outside 73:13
over 12:15 45:2
55:18 78:15,16
84:23 85:23 89:11
overall 16:24
oversaw 14:17
oversee 16:2,17
owner 26:7 27:3 28:6
28:18 40:10,25
41:3,9,10 64:17,17
76:23 '
owners 66:16
ownership 40:12
owns 40:11
o'clock 79:9
page 4:2,8 53:22
60:5
pages 37:162:2,3,18
80:4
paid 72:20
paper 20:11,20 47:8
49:20
paragraph 24:1
39:18 ---
Pardon 23:5
part 25:23 59:17
63:16 64:20,21
67:6 70:23 71:3
partially 25:18,20
participate 63:18
86:1,7
participation 76:23
particular 77:4
parties 34:18 44:18 .
63:19 89:9
party 44:21 74:23
part-time 9:22
past 6:22 33:7,8
Patti 21:4,5,7
pausing 33:4
payment 76:25 77:2
77:7,18
penalty 8:2 50:17,22
pending 34:20
people 17:13 18:23
18:24 20:17,19
29:14
per 70:13
perjury 8:2 50:17,22
permit 60:13
person 14:4 61:9,9
personally 40:17
62:22
persons 64:7
person's 15:13 21:3
pertain 20:6,8,22
81:7
pertained 22:24
pertaining 21:25
25:10 81:4
pertains 20:1188:10
phone 5:16,19 33:17
pick 8:14 33:17
48:17
piece 20:11
pieces 20:20
place 79:6
plaintiff 1:7 2:7,20
3:2 5:7
Plaintiffs 4:919:11
53:14 57:158:11
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wires 40:13
withdrawing 57:8
withheld 22:20
witness 4:23 5:6 6:13
6:16 23:22 24:18
26:18,22 27:14,23
28:5,15 31:8 32:12
32:18 35:24 37:12
37:16 38:19,23
41:4 42:12 43:12
44:7 46:21 48:13
48:14 50.10 51:19
51:23 52:20 53:2
54:12 57:22 60:17
60:20 66:9 70:3
78:22 79:24 81:12
82:17 83:17 88:16
89:20
wondering 81:20
word 44:2
words 45:25 47:15
47:24 61:16 64:12
work 9:6.14 10:5
17:5 21:22 56:7,15
66:12,16 73:1,1
worked 71:19
working 10:3,3
17:13 21:10
wouldn't 61:20 64:5
write 60:23
writing 28:25 29:3
written 75:7,8
wrote 51:7,9
yeah 6:15 23:23
27:14 33:4 37:5
39:9 45:4 50:10
51:10 54:1,5,20,25
55:3,7,20 62:7
63:9 66:5 69:24
70:2 71:1 74:13
78:22 79:1182:15
82:17 83:24 86:13
87:16
year 9:1,9 11:1,8
14:8 41:12
years 9:17,18,19
10:9,15 11:5 51:20
yesterday 67:21
Zelefsky 18:4,6,14•
30:12,18 33:1,3,20
34:135:5 43:8
48:2 52:8 56:1,7
58:19 68:9 72:22
Zelefsky's 81:15
zone 33:22 34:6,12
41:16,19 46:2,10
61:17
zoning 37:23 39:6,19
39:19,25,25 43:18
43:19 46:13 55:12
55:12 56:6
$250 53:3
OOCC063091:8 2:8
00-0143:19
00-02 43:20
1 1:12 2:12
1:10 2:22 5:1
1:4136:15
101:12 2:12
11/15/99 23:25 24:4
11560 2:21
12th 57:6,18
120 74:18
13 19:8 37:3 40:11
40:21,21,22 43:20
45:14 55:10
14 4:10 19:9,11,16
15 4:11 53:10,14
15th 59:7
16 4:12 56:21 57:1,5
57:11
174:13 58:9,11,16
58:18 61:2162:3
62:19 80:16
17th 4:15 80:4
18 4:14 67:20,20,23
68:2,4,20 71:10
1850 3:14
19 4:10,15 79:16,19
79:21 80:5,7
19th 61:25
1966 9:2
19719:11,22
1972 9:22
197610:2
197710:12
198710:20
1"1 11:9,22 12:9
199712:9,13,19 13:5
19" 22:24 63:21
2:00 79:9
20 45:15
20001:20 2:23 4:15
5:1,17 12:2014:14
14:15 30:12 31:6
36:14 38:4,7,10
39:4,15,21,23 40:6
40:15 41:20 42:1
42:23 45:15,15
47:12,18 48:8 49:2
49:10,14,22 50:2
50:12,13,25 51:3
53:20 55:9,23
57:18 59:7 61:2,25
63:2175:18 76:3,9
76:11 80:4,17 87:9
87:21
213 3:5,10,15
22 87:21
25 1:20 2:23 5:1
3:06 89:23
30 89:7
30th 2:24 3:4 41:17
41:20
3435 2:24 3:4
36 53:18
374-1540 36:14 .
385-8000 3:5
4:30 79:12
40 56:21 57:5
48 58:7,15
5 4:3.30:12 39:13,23
40:15 42:1.23
45:15 47:12,18
48:8 49:1,10,14
50:2 51:3 75:8.9
75:18,21 76:3,11
76:16 79:8 81:16
81:17 87:8
Sth 4:11 32:6,7 38:3
38:12,2140:2,6
49:22 50:12,13,24
53:21,22 55:23
61:2 68:7 75:14
50 51:22
5151:20
515 3:14
53 4:11
536-5233 5:25
536-5575 5:24
54956.8 76:18
57 4:12 67:21
58 4:13
6 23:20,21,23 24:1,3
60 74:18
617-0480115
63 37:24 -
63-acre 39:7
633 3:9
67 4:14
7 30:8,9,9,11,15,17
31:6,7,16 32:9.22
33:13,18 35:12
36:9 38:6,10 39:4
39:13,15 45:15
46:5,25 47:12,16
49:1,10,14 50:1,13
55:9 75:10 76*9
81:17
7th 32:10 36:14,23
38:18,21 39:21
51:8 53:20
719:21
714 5:24,25 36:14
73 10:10
74 9:20,21
76 9:20 10:10
7777 76:24
79 4:15 10:16
8 36:25 41:17
8710:21
896-2413 3:10
----
9 57:5,6
9th 4:12
90010 3:5
900713:15
90071-2040 3:10
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Page 99
GUSTAVO A. DURAN, 07.26.00
BU INGTON V. HUNTINGTON CENTER
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ORANGE
3
4
5 BURLINGTON COAT FACTORY WAREHOUSE )
OF HUNTINGTON BEACH, INC., a )
6 California Corporation, )
7 Plaintiff, )
8 vs. ) Case No.
OOCC06309
9 HUNTINGTON CENTER ASSOCIATES, )
a Delaware Limited Liability )
10 Company; EZRALOW RETAIL PROPERTIES,)
a Delaware Limited Liability )
11 Company; THE EZRALOW COMPANY, a )
Delaware Limited Liability Company, )
12 and DOES 1 through 10, inclusive, )
13 Defendants. 1
14
15
16
17
18 DEPOSITION OF:
19 GUSTAVO A. DURAN
20 WEDNESDAY, JULY 26, 2000
21
22
23
24
25
1
I APPEARANCES OF COUNSEL:
2 FOR THE PLAINTIFF-
3 AVIV L TUCHMAN & ASSOCIATES
BY: AVIV L TUCHMAN, ESQ.
4 3435 Wilshire Boulevard
30th Floor
5 Los Angeles, California 90010
(213) 385-8000
6
7
8 FOR WITNESS DAVID C. BIGGS*
9 KANE, BALLMER & BERKMAN
BY: R. BRUCE TEPPER, ESQ.
10 515 South Figueroa Street
Suite 1850
11 Los Angeles, California 90071
(213) 617-0480
12
13 FOR THE DEFENDANTS:
14 WHTTMAN, BREED, ABBOTT & MORGAN, LLP
BY: MARK S. SHIPOW, ESQ.
15 633 West Fifth Street
Twenty -First Floor
16 Los Angeles, California 90071
(213)896-2512
17
18
19
20
21 _ -
22
23
24
25
- J
3
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
INDEX
2 FOR THE COUNTY OF ORANGE
2
EXAMINATION BY
Page
3
4
3
MR. TUCHMAN------------------------------ 6
5 BURLINGTON COAT FACTORY WAREHOUSE )
4
OF HUNTINGTON BEACH, INC., a )
5
6 California Corporation, )
6
7 Plaintiff,) )
7
8
EXHIBITS
8 vs. ) Case No.
page.
OOCC06309
9 HUNTINGTON CENTER ASSOCIATES, )
9
Plaintiffs Description
Marked
a Delaware Limited Liability )
10
20
Notice of Deposition
9
10 Company; EZRALOW RETAIL PROPERTIES,)
11
21
Statement of Interest
83
a Delaware Limited Liability )
11 Company; THE EZRALOW COMPANY, a )
12
22
Letter dated April 24, 2000
84
Delaware Limited Liability Company,)
13
23
Letter dated May 2, 2000
85
12 and DOES 1 through 10, inclusive,)
14
24
Letter dated April 4, 2000
90
13 Defendan)tg
15
25
Letter dated April 10, 2000
91
— )
16
26
Letter dated April 4, 2000
92
14
17
27
Letter dated April 17, 2000
100
15
18
28
Letter dated May 10, 2000
102
17
19
29
Letter dated May 12, 2000
104
18
20
30
Letter dated May 16, 2000
106
19 The Deposition of GUSTAVO A. DURAN, taken on
21
31
Memo dated May 26, 2000
113
20 behalf of the Plaintiff, before Amy Saylor, Certified
21 Shorthand Reporter No. 11560, Registered Professional
22
32
Letter dated June 2, 2000
116
22 Reporter, for the State of California, commencing at
23
23 9:36 a.m., on Wednesday, July 26, 2000, at the Law Offices
24
24 of Aviv L Tuchman & Associates, located at 3435 Wilshire
25
25 Boulevard, 30th Floor, Los Angeles, California.
2
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GUSTAVO A. DURAN, 07.26.00 41
BURLINGTON V. HUNTINGTON CENTER
1
EXHIBITS CONTINUED
1
Q. Okay. Have you ever had your deposition taken
2
2
before?
3
INFORMATION REQUESTED
3
A. Uh-huh.
4
(None.)
4
Q. Is that a "yes"?
5
5
A. Yea
6
WITNESS INSTRUCTED NOT TO ANSWER
6
Q. And how many times is that?
7
PAGE LINE
7
A. How many times was that?
8
55 17
8
Q. Yes.
9
91 13
9
A. Probably about four or five.
10
10
Q. Da you remember the last time you had your
11
11
deposition taken?
12
12
A. Yea
13
13
Q. When was that?
14
14
A. I don't remember the date, but it was when I
15
15
worked with the City of Buena Park.
16
16
Q. Have you had your deposition taken in connection
17
17
with any of your duties as an employee of the City of
18
18
Huntington Beach?
19
19
A. No.
20
20
Q. Okay. The oath that you've taken has the same
21
21
force and effect as if you were testifying in a court of
22
22
law and obligates you to tell the truth.
23
23
Do you understand that?
24
24
A. Uh-huh, I do.
25
25
Q. When you respond to questions, you are required
5 1 7
1
Wednesday, July 26, 2000; 9:36 a.m.
1
to answer verbally, meaning please avoid nods of the head
2
Los Angeles, California
2
and "uh-huhs" and "huh-uhs."
3
3
A. Correct.
4
4
Q. After the transcript is completed, you1I be
5
GUSTAVO A. DURAN,
5
asked to review it and sign it under penalty of perjury.
6
called as a witness by and on behalf of the
6
Do you understand that?
7
Plaintiff, and having been first duly sworn by
7
A. Correct.
8
the Certified Shorthand Reporter, was examined
8
Q. You can make changes to the transcript after the
9
and testified as follows:
9
transcript has been completed; however, if you make
10
10
changes, I or any counsel can comment on changes you make
11
EXAMINATION
11
subsequent to today.
12
BY MR. TUCHMAN:
12
Do you understand that?
13
Q. State and spell your name for the record,
13
A. I do.
14
please.
14
Q. In other words, please give us your best
15
A- Gustavo A. Duran. —
15
testimony.
16
Q. And your address and phone number, please.
16
Do you understand that?
17
A. My home address?
17
A. I do.
18
MR. TEPPER: No.
18
Q. If you respond to a question I'm asking or any
19
THE WITNESS: 2000 Main Street, Huntington Beach,
19
other attorney who may ask you questions, we will assume
20
California, 92648. You said phone number?
20
that you understand what is being asked of you.
21
BY MR. TUCHMAN:
21
Do you understand that?
22
Q. Yes, please.
22
A. I do.
23
A. (714) 374-1529.
23
Q. If for some reason you don't understand a
24
Q. And also your telefax number, please?
24
question, the question is vague, or doesn't make sense to
25
A. (714) 375-5087.
25
you, please ask me to clarify; okay?
6 1 8
2 (Pages 5 to 8)
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1
2
3
4
5
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A. I WOL
Q. Is there some reason that we cannot proceed
today? You`re under some kind of medication or disability
that would prevent you from giving your best testimony
today?
A. There's no reason.
Q. Thank you. Okay.
MR. TUCHMAN: What exhibit number are we on,
Amy? 17? 18?
THE REPORTER: 20.
MR. TUCHMAN: Let's start with 20.
MR. TUCHMAN: I'm going to ask the reporter to
mark for identification as Exhibit 20, this is the Notice
of Deposition of Gustavo Duran, and this is — also
contains the Subpoena with a request for documents.
(Plaintiffs Exhibit 20 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. Do you recognize Exhibit 20?
A. Let me take a look, okay.
Q. Take your time.
A. Yes.
Q. Okay. And you received the Subpoena and you're
here pursuant to that Subpoena; is that correct?
A. Correct.
Q. And did you prepare any documents in response to
the Subpoena?
A. I prepared a box of documents which I transferred
to our legal counsel, Mr. Bruce Tepper, for him to deliver
to you.
Q. When you say "a box," a box of this size, a
banker's box?
A. That's the box.
Q. And did you remove any documents from the box?
A. No. We put them in.
Q. Okay. You put all the documents in. And were
you familiar with any documents that were withheld for any
reason?
A. No, only — it was only the one file which
related to clewed session items. ----
Q. In whose possession was that one file that
related to closed session items?
A. My possession.
Q. And could you tell me how thick that file.was?
A. It was about this thick (indicating).
Q. A little bit less than an inch?
A. Uh-huh.
Q. Is that a "yes"?
A. Yes.
10
1 Q. Thank you. Now, did you contact — where else
2 did you go within — your offices are on the 5th floor?
3 A. Correct.
4 Q. Where else on the 5th floor did you go to
5 retrieve documents?
6 A. From David Biggs' offim
7 Q. Mr. Biggs. And where else?
8 A. That is it.
9 Q. Okay. Did you obtain documents from the Planning
10 Department?
11 A. Not of the records that were supplied. Let me
12 think, okay? No. The records that are from the Planning
13 Department were records that we had. They were given to us
14 during the process, but I did not go to obtain records from
15 the Planning Department:
16 Q. Okay. Are you aware if anybody from the City of
17 Huntington Beach asked the Planning Department directly for
18 their documents?
19 A. I'm not aware.
20 Q. Okay.
21 MR. TUCHMAN: Mr. Tepper, before Zelefsky's
22 deposition, we want to make sure we have the Planning
,23 documents.
24 MR. TEPPER: You do have them.
25 MR. TUCHMAN: Okay.
11
1 BY MR. TUCHMAN:
2 Q. Now, are you aware of any documents which were
3 responsive — which are responsive to our Subpoena, which
4 pertain to Huntington Center, Burlington Coat Factory,
5 Ezralow, et cetera, where documents will be other than the
6 Economic Development Department and the Planning
7 Department?
8 A. I'm not aware of any other department that has
9 documents related to Burlington.
10 Q. Are you — or the Huntington Center?
11 A. Or Huntington Center.
12 Q. Are you aware if Ray Silver has a separate file
13 or separate documents?
14 A. I'm not aware.
15 Q. Okay. I want to go over your -- let's back up a
16 second.
17 Are you aware of any documents that may be
18 missing that you're still looking for?
19 A. I'm not aware of any documents I maybe missing.
20 Q. I want to go over your educational and then
21 employment background, starting with high school.
22 Did you attend high school?
23 A. Yes.
24 Q. What year did you graduate?
25 A. I graduated in 1966 from North Hollywood
)ILIO Et ASSOCIATES CERTIFIED COURT REPORTERS
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3 (Pages 9 to 12)
1
High School.
1
2
Q. Right over here. Okay. And did you have any
2
3
post high school education?
3
4
A. SigndkmL
4
5
Q. Please describe it.
5
6
A. I attended Pierce College. I went to Pierce
6
7
College for a couple of years in architectural discipline,
7
8
transferred to Cal Poly Pomona where I obtained my
8
9
Bachelor's degree in urban planning. I then moved on to
9
10
the University of Cincinatti where I obtained my Master's
10
11
degree in community planning, with an emphasis in housing
11
12
and economic development. I have two — what are they
12
13
called — certificates attending USC School of Management.
13
14
So I have two management certificates, plus numerous
14
15
seminars and courses over the — my working lifetime.
15
16
Q. What year did you get your B.A. from Cal Poly
16
17
Pomona?
17
18
A. It's a B.S.; 1971.
18
19
Q. What year did you get your Master's from the
19
20
University of Cincinatti?
20
21
A. 1973.
21
22
Q. And your two certificates from,the USC School of
22
23
Management, what were they in?
23
24
A. In business management
24
25
Q. Okay. Was there something more specific than
25
13
l .
business management that —
1
2
A. No. The whole purpose of those certificates are
2
3
to be applicable to managers is private and public sectors
3
4
covering a whole array of courses from accounting to
4
5
computers to leadership courses, in a sense to be — for a
5
6
general manager of any operation.
6
7
Q. Please describe your employment history since
7
8
1973, briefly.
8
9
A. Briefly, 1973 I became a consultant — housing
9
10
consultant I consulted with the City of El Monte, City of
10
11
La Puente, City of Orange, County of Orange. In 1975 I
11
12
went to work for the City of Anaheim as a Housing and
12
13
Neighbor — wait a minute, Neighborhood Preservation
13
14
Coordinator. In 1979, I became an assistant to the
14
15
Director of Administration; the Governor, Jerry Brown.
15
16
1980, I was Assistant Chief for the Department Housing
16
17
Community Development for the State. Then I went to work
17
18
for the Capital Area Development Authority until about
18
19
1993. Capital Development Authority —Capital Area
19
20
Development Authority, C-A-D-A, is a State/City
20
21
Redevelopment Agency. 19- — I then went on to establish a
21
22
mortgage banking operation,1983; sold it in 1986 to Great
22
23
Western Real Estate; became a private developer of high -end
23
24-
housing in the Granite Bay area of Sacramento, north area
24
25
of Sacramento. Due to the recession in '89, which hit
25
14
GUSTAVO A. DURAN, 07.26.00 •
BURLINGTON V. HUNTINGTON CENTER
Sacramento earlier, we bad to shut down the company. I
then went on to work for the City of Buena Park in 1989
till 1998. 1998, started working with the City of
Huntington Beach.
Q. What was your title at Buena Park?
A. Project Manager.
Q. When did you join the City of Huntington Beach?
A. June 8, 199It.
Q. Now, is your employer the City of Huntington
Beach or the City of Huntington Beach Redevelopment Agency?
A. The employer is the City of Huntington Beach.
Q. Okay. And you've worked continuously for the
City of Huntington Beach since June 8, 1998, to present,
which is July 2000?
A. Correct
Q. Has your title been the same?
A. Yes
Q. What is your title?
A. Housing and Redevelopment Manager.
Q. Have your duties been the same since you started
with the City of Huntington Beach?
A. Yes, they have been.
Q. What are your duties?
A. My duties are to manage the staff of eight people
and implementing bossing and redevelopment projects
15
Q. What is a redevelopment project?
A. What is a redevelopment project?
Q. Yes.
A. Any project that our office undertakes, which is
financed with redevelopment funds.
Q. What is the source of redevelopment funds?
A. Tax increment financing.
Q. And that can be in different types of taxes,
property tax?
A. No, tax increment financing is a property tax.
We do, however, obtain funds from the Federal Government,
home funds. CDBG funds, Community Development Block Grant
funds, but those funds and those projects are sponsored
under the City, not the Redevelopment Agency.
Q. Since — you mentioned that you had a staff of
eight people. Who are your current eight people?
A. I don't have eight people. We've been short for
quite a while. So I have Steve Holtz I have
Leann Brunson. I have Tom Andreski, and I've had two
consultants filling in on the interum, Joyce DeKreek —
Q. Can you spell that name?
A. DeKreek, D-e, capital K-r e-e k; and another
consultant, Jim Beason. And then I have a part -- half
person, Carol Runzeil. Those are the only positions we
have — ob,1'm sorry, I have an assistant, Bobbi Purdue.
16-1
4 (Pages 13 to 16)
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BURLINGTON V. HUNTINGTON CENTER
1 Q. Bobbi Purdue, she's an administrator assistant?
1
2 A. Yeah.
2
3 Q. Sbe's like a secretary?
3
4 A. Yeah.
4
5 • Q. Steve Holtz, has he in any way worked on the
5
6 Huntington Center or anything related to Huntington Center?
6
7 A. Not at all.
7
8 Q. Has Luann Brunson worked on anything related to
8
9 the Huntington Centel
9
10 A. Not at all.
10
11 Q. Has Tom Andreski worked on anything related to
11
12 Huntington Center?
12
13 A. He has worked on the Edinger Corridor study,
13
14 which encompasses the Huntington Center, but has no direct
14
15 relevance to the Huntington Center.
15
16 Q. Are you aware if there is a contract with
16
17 E-D-A-W, EDAW?
17
18 A. Yes.
18
19 Q. And has that contract been entered into between
19
20 the City and EDAW?
20
21 A. Has been entered Into? It was approved by the
21
22 City Council. I'm out so sure it has been fully executed.
22
23 Q. Okay. Any work that EDAW has done prior to
23
24 July 17th, 2000, was that work that vro paid for by
24
25 Ezralow?
25
17
1 A. Not that I'm aware of.
1
2 Q. Well, did the City pay EDAW for any work
2
3 performed prior to July 17th on the redevelopment of the
3
4 Huntington Center?
4
5 A. No.
5
6 Q. Okay. So if EDAW worked on anything at the
6
7 Huntington Center prior to July 17, 2000, it was not funded
7
8 by the City or the Redevelopment Agency?
8
9 A. Okay. Hang on. Not by the Redevelopment
9
10 Agency. EDAW may have done some work — EDAW has been a
10
11 consultant for the City over various years mostly on
11
12 planning issues and environmental Issues, so I'm not aware
12
13 of anything that they may have been engaged on by Planning
13
14 staff. let's say, or in relation to a general plan or any
14
15 other aspects. But in relationship to the work I do -- we
15
16 work in Economic Development — we have not engaged EDAW
16
17 for any particular purpose:
17
18 Q. Relating to Huntington Center?
18
19 A. Correct.
19
20 Q. Okay. What's Tom AndreskiS title?
20
21 A. Assistant Project Manager.
21
22 Q. Has the consultant, Joe DeKreek, worked on
22
23 anything related to Huntington Center Associates?
23
24 A. Joyce?
24
25 Q. I thought it was Joe DeKreek. Is it Joyce?
25
18
A. Joyce. It's a lady. Not at all.
Q. Has Jim Benson worked on anything related to the
Huntington Center?
A. Not at alL
Q. Has Carol Runzell worked on anything related to
Huntington Center?
A. Not at alL
Q. Your title is the Housing and Redevelopment
Manager; is that correct?
A. Correct.
Q. Who is your immediate supervisor?
A. David Biggs.
Q. Has David Biggs always been your immediate
supervisor?
A. Yes, he has,
Q. What is his title?
A. Director of Economic Development or Economic
Development Director. I don't — one of those.
Q. You're the Housing and Redevelopment Manager.
And the department that you`re in is?
A. The Economic Development Department.
Q. Are there any other persons that are as high as
you within the Economic Development Department?
A. No.
Q. Okay. So it goes Biggs, Duran, and then the rest
19
of the folks?
A. Correct- There's three additional people that do
business development work that do not report to me.
Q. And those three persons are?
A. Jim iamb; Eli NaBah, N-a-f-f-a-h; and
Carol Runzell, who works mostly on business development.
Q. Okay. And these people — those three people do
not report to you?
A. Correct.
Q. Okay. Carol Runzell does for some of her duties
though?
A. Correct. And except when David Biggs is out for
an extended time, then I am the acting department head.
Q. Okay. Now, you have certain responsibilities
relative to the Huntington Center?
A. Correct.
Q. What are those duties?
A. To work with thi administration in implementing
the redevelopment of the Huntington Center.
Q. When you say "administration," do you mean the
Planning Commission, the City council?
A. No, David Biggs and Mr. Ray Silver.
Q. Who is Ray Silver?
A. He's the — in terms of redevelopment, he's the
Executive Director of the Redevelopment Agency. He also
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happens to be the City Administrator.
1
2
Q. He wears two hats?
2
3
A. Correct.
3
4
Q. Now, do you have contact with Mr. Biggs on a
4
5
day-to-day basis?
5
6
A. Yes, I do.
6
7
Q. Are all actions that you take, Mr. Duran,
7
8
approved by Mr. Biggs?
8
9
A. Well, if they're actions that need his approval,
9
10
yes. If they're actions that do not need his approval,
10
11
then it's my responsibility to carry them out.
t 1
12
Q. What type of actions need Mr. Biggs' approval?
12
13
A. Money, financial actions, or actions of
13
14
significant importance that have repercussions, either
14
15
political repercussions or sort of judgment that I —
15
16
judgment calls that, in my mind, he needs to pay attention
16
17
to, he may need to decide on.
17
18
Q. Are there any written policy guidelines relative
18
19
to the determination of when you need to consult with
19
20
Mr. Biggs and when you do not?
20
21
A. No, there isn't.
21
22
Q. You are authorized to sign on City of Huntington
22
23
Beach letterhead; correct?
23
24
A. Correct.
24
25
Q. When you send out letters on City of Huntington
25
21
1 Beach letterhead or Economic Development Department
2 letterhead of the City of Huntington Beach, do you always
3 need the authorization and approval of Mr. Biggs?
4 A. No, I don't
5 Q. Would you say more than half the time you do not
6 request his approval and authorization?
7 A. That's probably likely, depending on the nature
8 of the correspondence.
9 Q. Did you speak to Mr. Biggs about his deposition?
10 A. Yesterday?
11 Q. Yes.
12 A. I just asked him how it went
13 Q. What did he say?
14 A. He indicated do me that it went fine and he
15 answered most of the questions. ---
16 Q. Did you review any documents in preparation for
17 this deposition?
18 A. Not at alb
19 Q. Did you say anything else to Mr. Biggs?
20 A. Not really.
21 Q. Did he say anything else?
22 A. Not really.
23 Q. Did you meet or speak to Mr. Silver regarding his
24- deposition?
25 A. No, I didn't speak to Mr. Silver.
22
1
2
3
4
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9
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25
GUSTAVO A. DURAN, 07.26.00 '
SURLINGTON V. HUNTINGTON CENTER
Q. You talked about Ray Silver. Who is Mr. Biggs'
boss?
A. Ray silver.
Q. Do you ever report to Ray Silver as to your daily
activities?
A. When Mr. Biggs IS out on vacation or in
conference and I'm the acting department head, I do have to
work with Ray Silver.
Q. Can you describe Mr. Ray Silver's duties as the
Executive Director of the City of Huntington Beach
Redevelopment Agency?
A. He's the Chief Executive. He has to make key
decisions as well as sign documents that require the
Executive Director's signature.
Q. Would you say that he's involved in the
day-to-day aspect of running the Economic Development
Department?
A. No.
Q. Would you say that be has contact with your
department at least once a day?
A. Very likely.
Q. Okay. And has Mr. Biggs ever told you that
Mr. Silver is not too interested in the Economic
Development Department —
MR. TEPPER: Objection. Without foundation.
23
BY MR. TUCHMAN:
Q. You can answer the question.
MR. SHIPOW: Also ambiguous.
BY MR. TUCHMAN:
Q. You can answer.
A. What's the question again?
Q. It was kind of cut off, but has Mr. Biggs ever
told you that Mr. Silver is not too interested in the
workings of the Economic Development Department?
A. No.
Q. Okay. Has Mr. Biggs advised you that he wants to
become the City Administrator?
A. No.
MR. TEPPER- Objection. Go ahead.
BY MR. TUCHMAN:
Q. Okay. Who is the highest elected official —
highest not -elected official in the City Government?
A. Not elected?
Q. That's right
A. Mr. Ray Silver.
Q. Have you ever seen Mr. Ray Silver in the Economic
Development Department?
A. Yes, I have.
Q. How often do you see him there?
A. Oh, maybe once every three months.
24
6 (Pages 21 to 24)
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1 Q. Okay. What is the relationship between the
1
2 Economic Development Department and the Planning
2
3 Department?
3
4 A. It's a normal relationship of any City that has a
4
5 Planning Department and an Economic Development
5
6 Department. We work together on issues that — which may
6
7 involve both departments, but pretty mach they carry on
7
8 their responsibilities and we carry on our
8
9 responsibilities, which are based on State Planning law and
9
10 based on State Redevelopment law.
10
11 Q. As far as you know, what are the duties of the
11
12 Planning Department?
12
13 A. To approve plans submitted by applicants, to
13
14 process zone changes, conditional use permits, general plan
14
15 amendments, to interface with the Coastal Commission, to
15
16 prepare future plans.
16
17 Q. And the head of the Planning Department is
17
18 Howard Zelefsky; correct?
18
19 A. Corte
19
W Q. Is Mr. Zelefsky higher or lower or the same level
20
21 of Mr. Biggs?
21
22 A. Same level.
22
23 Q. Do you supervise anyone in the Planning
23
24 Department?
24
25 A. Not at all.
25
25
1
Q. Do you ever give instructions to anyone in the
1
2
Planning Department?
2
3
A. Not at all.
3
4
Q. Does anyone in the Planning Department give you
4
5
instructions?
5
6
A. Not at all.
6
7
Q. Okay. To what extent does the Economic
7
8
Development Department rely on the Planning Department to
8
9
assist it in redevelopment?
9
10
A. As I indicated, we work with the Planning
10
11
Department. If we have to submit — we, ourselves,
11
12
sometimes have to submit applications to the Planning
12
13
Department for zone changes, conditional use permits, or
13
14
other matters, so we work with them, but that's about all
14
15
we do, you know.
15
16
Q. Under what conditions does the Economic
16
17
Development Department submit applications for zone changes
17
18
to a Planning Department? ..
18
19
A. When the particular project requires that we,
19
20
ourselves, Me the application. As a perfect example,
20
21
we're in charge of managing the Farmer's Market and Arts
21
22
and Crafts Fair at the pier. Well, that required that we
22
23
file a conditional use permit for it to be allowed at the
23
24
pier.
24
25,
Q. Does -- when the Economic Development Department
25
P11
files an application, it really files the application on
behalf of the Redevelopment Agency?
A. It depends on the particulars. If it's
City -owned property, it might be the City. If it's
Redevelopment -owned property; it might be the Redevelopment
Agency.
Q. Is it sometimes both?
A. Sometimes both.
Q. Okay. In all situations where redevelopment has
occurred at the City, has the Economic Development
Department filed an application to get the redevelopment
started with respect to filing a plan?
A. No.
MR. SHIPOW: Objection. Ambiguous.
MR. TUCHMAN: Did you get his answer?
THE REPORTER. Yes.
THE WITNESS: The answer is no, not in all cases;
but in certain cases, yes.
BY MR. TUCHMAN:
Q. Under what circumstances has the City in the
past -- or not the City.
Under what circumstances in the past has the
Economic Development Department filed an application for
zoning changes to get a specific plan filed relative to am -
application on behalf of the City or the Redevelopment
27
Agency?
A. On the Huntington Center, we did that back — I
believe it was 1998, when Macerich was the owner. We filed
as co -applicants with Macerich.
Q. Any other times?
A. No, because it's not done very often.
Redevelopment projects don't occur every month or every
year. Redevelopment projects can occur this year and
another one will not — will not be implemented for another
two or three years.,
Q. As far as you understand the Zoning and Ordinance
provisions — you re familiar with those?
A. Generally.
Q. They call it Zs and Os?
A. Excuse me?
Q. Have you ever heard them called Zs and Os?
A. No.
MR. TEPPER: With all due respect, Mr. Tuchman,
I have a planning degree and I've been in planning for
25 years and I've never heard them called Zs and Os.
MR. TUCHMAN: Well take your deposition
tomorrow.
MR. TEPPER: No, you won't. You know, I don't
know where that came from.
THE WITNESS: I've never heard that terminology
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before.
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2
MR. TUCHMAN: That's okay.
2
3
THE WITNESS: Okay.
3
4
BY MR. TUCHMAN:
4
5
Q. With respect to the Zoning and Ordinance
5
6
provisions, is it your understanding that the -- if there
6
7
is a land owner who owns the land and wants to develop it
7
8
and files an application, that the City has to be the
8
9
co -applicant with that land owner?
9
10
MR. TEPPER: Hold on. that's an improper
10
11
hypothetical. Why don't you flesh it out a little bit?
11
12
MR. SHIPOW: Also calls for a legal conclusion.
12
13
BY MR. TUCHMAN:
13
14
Q. When a land owner wants to develop the property,
14
15
okay, and wants to redevelop it using the Redevelopment
15
16
Agency's assistance, is the land owner a co -applicant with
16
17
the Redevelopment Agency and the City of Huntington Beach?
17
18
MR. SHIPOW: Objection. Ambiguous. Calls for a
18
19
legal conclusion. Incomplete hypothetical.
19
20
BY MR. TUCHMAN:
20
21
Q. You can answer.
21
22
MR. TEPPER: Do you know the answer?
22
23
THE WITNESS: It varies. And as far as
23
24
understanding the legalities of the zoning ordinance, I
24
25
don't, because that is not my job to interpret or
25
29
1
administer the zoning ordinance.
1
2
BY MR. TUCHMAN:
2
3
Q. Whose job is that?
3
4
A. That's the Planning Department's.
4
5
Q. Okay. That's fair. Now, you're familiar with
5
6
the Specific Plan No. 12 that was submitted?
6
7
A. Yes, I am familiar with it.
7
8
Q. What's the difference between 12 and 13?
8
9
A. I don't know the difference between 12 and 13.
9
10
My understanding might be that 12 was the initial
10
11
submittal, and then the other -- the next one was a
11
12
redrafting of the plan.
12
13
Q. Do you know why it was numbered 12?
13
14
A. I don't know.
14
15
Q. It's more a Planning question-T
15
16
A. Correct.
16
17
Q. Do you know if there were Specific Plans 1
17
18
through 11?
18
19
A. I'm not familiar. I don't know.
19
20
Q. And do you know who initially drafted Specific
20
21
Plan No. 12?
21
22
A. No, I don't
22
23
Q. Has the Economic Development Department engaged,
23
24
meaning, signed a contract with Greenberg & Associates
24
25
Architects?
25
30
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
A. No.
Q. To your knowledge, has the Economic Development
Department or any Agency of the City of Huntington Beach
paid Greenberg & Associates?
A. No.
Q. I want you to take a look at Exhibit 3, which was
previously marked.
MR. TUCHMAN: Do you guys have it out?
BY MR. TUCHMAN:
Q. Have you ever seen Exhibit 3 before? Exhibit 3
is the privileged log, the first two pages, Exhibit 3, of
the privileged log.
A. I may have seen it. I can't recall, but I may
have seen it, because we were preparing the documents to
send to Mr. Tepper and I had two staff members putting
the -- what do you call it -- the list of documents
together, but I don't remember seeing the details.
Q. Okay. This looks like the list of documents --
the list was -- the list of documents produced was this
list here?
A. Correct.
Q. Okay. I think this was also partof -- we U
just mark this 3-A. This willbe 3-B. This list was
prepared by you?
A. Prepared by our office. I had two staff members
•31
going through each of the files, cataloguing the documents
so we could transfer them over to Mr. Tepper.
Q. Very good.
A. But I did not review each item to see which .- we
basically turned over the tiles, we put the catalogue in,
and I did not review what was in the documents.
Q. Okay. .
MR. SHIPOW: I don'tthink that I have that. If
I could get a copy before we leave.
MR. TUCHMAN: Well get you a copy of it.
MR. SHIPOW: Is that going to be part of
Exhibit 3?
MR. TUCHMAN: 3-B.
MR. SHIPOW: Okay.
MR. TUCHMAN: I'm going to put this up here.
Just remind me.
BY MR. TUCHMAN:
Q. You weren't involved in determining what
documents should not be produced; am I correct?
A. I was involved in malting sure that all the filed
documents were produced, and I had a We that was not
produced because that was part of our closed session
documents which, I believe, are protected under some State
redevelopment law. Bruce?
Q. It's okay, Mr. Duran. Are you able to tell me
32
8 (Pages 29 to 32)
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1 if Exhibit 3 or 3-A, these first two pages, was that
1
2 everything in the file? Are you able to tell me that?
2
3 A. Correll.
3
4 Q. Okay.
4
5 A. Now I'm recollecting. Yeah, this was prepared by
5
6 our of&v—
6
7 Q. Okay. Good. Did you attend any closed sessions
7
8 of the City Council/Redevelopment Agency wherein anything
8
9 pertaining to Huntington Center was discussed?
9
10 A. Yes, I did.
10
11 Q. How many of those did you attend?
11
12 A. I think there might have been only about three of
12
13 those.
13
14 Q. When were those meetings?
14
15 A. I don't recollect the particular dates.
15
16 Q. Were they in 1999 and 2000?
16
17 A. Yes, they were.
17
18 Q. Was anybody from Ezralow present at any of these
18
19 closed sessions?
19
20 A. They were not.
20
21 Q. Can you tell me who was present at any of these
21
22 sessions?
22
23 A. The Redevelopment Agency Board —
23
24 Q. That's also the City Council?
24
25 A. Correct. The City administrator, Mr. David
25
33
1 Biggs, Mr. Murray Kane, Mr. Jim Rabe. That's a guy from I 1
2 Keyser Marston & Associates. Those are the people I
2
3 recollect being there.
3
4 Q. Who's Keyser Marston & Associates?
4
5 A. They're an economic consultant firm.
5
6 Q. Hired by the City and Redevelopment Agency?
6
7 A. Hired by the Redevelopment Agency.
7
8 Q. For what purpose?
8
9 A. To provide us with independent financial analysis
9
10 of transactions we may be involved in doing or
10
11 understanding the strengths of the developer, the
11
12 weaknesses of the developer, the strengths and weaknesses
12
13 of a particular developer proposal, any and all sorts of
13
14 economic types of analysis that we may desire to undertake.
14
15 Q. Have you heard of a company called Saybrook,
15
16 S-a-y-b-r-o-o-k? --
16
17 A. Yes, I have.
17
18 Q. Who is that?
18
19 A. They are — they're also a financial consultant.
19
20 Q. Hired by the City?
20
21 A. No.
21
22 Q. Hired by the Redevelopment Agency?
22
23 A. No.
23
24 Q. Do you know who hired Saybrook?
24
25 A. CIM hired Saybrook.
25
34
Q. Who is CIM?
A. It's a development company here in Los Angeles.
Q. What relationship does Saybrook have to the
Huntington Center's project?
A. Let me think. I'm not so sure. Ezralow also may
have hired them, okay.
Q. Okay.
A. Because -- so they may also be hired by Ezralow.
And what was the question again, the part of your question?
Q. Do you know who hired Saybrook, I think, was --
A. Those are the two firms that may have hired
them. For sure CIM.
Q. Does CIM have anything to do with Huntington
Centers?
A. Not at all.
Q. Have you ever heard of Mt. Holly Associates?
A. Yes.
Q. Who is Mt. Hotly Associates?
A. They are a financial consultant also.
Q. Hired by the City or the Redevelopment Agency?
A. No.
Q. Do you know who hired them in connection with the
Huntington Center Associates?
A. The only one who could have hired them is
Ezralow.
35
Q. Did you ever speak to anyone from Mt. Holly
Associates?
A. Yes
Q. How many times?
A. Probably a couple times.
Q. What did you talk to them about?
A. Not individually. It was in relationship to
meetings we had.
Q. Meetings you had pertaining to what?
A. Ezralow and Huntington Center.
Q. What did you discuss with them?
A. Forst we discussed the capacity of Ezralow to do
the — to undertake the project at Huntington Center.
Q. Have you at the Redevelopment Agency or the
Economic Development Department determined that Ezralow has
the capacity to do the project?
A. Yes, we have determined that.
Q. Okay. And what else did you talk about -- who
was the person you spoke to from this Mt. Holly?
A. What is his name?
Q. Is it Mark Picket?
A. Mark Picket.
Q. What were the other conversations you had with
Mark Picket?
A. I did not have individual conversations They
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1 were part of a meethg, as I indicated.
1
2 Q. What were the other conversations that you were
2
3 privy to with Mark Picket?
3
4 A. Those were the only conversations where he
4
5 came — he attended meetings and he provided information
5
6 for as — for the Redevelopment Agency, to determine the
6
7 capacity of Ezralow to do the work that they were intending
7
8 to do.
8
9 Q. And what types of things did you analyze? Did
9
10 you analyze their track record as well as financial
10
11 ability?
11
12 A. Correct
12
13 Q. Any other areas that you analyzed?
13
14 A. No, that's it
14
15 Q. Okay. Now, did you have any conversations or did
15
16 you have -- were you privy to any conversations at meetings
16
17 with persons from Saybrook Capital?
17
18 A. They were the same meetings, as I indicated.
18
19 And, again, it was the same — same purpose of those
19
20 meetings.
20
21 Q. To determine whether Ezralow had the capacity and
21
22 ability to develop Huntington Center Associates —
22
23 A. Correct
23
24 Q. -- Huntington Center Shopping Center.
24
25 Do you know who Rebecca Casey is?
25
37
1
A. She's the principal — I think she's the
1
2
principal of Saybrook who attended the meetings.
2
3
Q. And have you ever heard of Carol Freholm?
3
4
A. No. I've heard the name, but I don't know who
4
5
she is.
5
6
Q. Have you ever heard of Lynn Sedway, S-e-d- —
6
7
A. Oh, yes.
7
8
Q. Who is that?
8
9
A. She also represents a financial arm hired by the
9
10
City/Redevelopment Agency to analyze market conditions,
10
11
also conduct feasibility studies. We use them — we use
11
12
Sedway as well as Keyser Marston for the same purposes.
12
13
Q. Has the Economic Development Department, acting
13
14
as an Agency of one or the other, City of Huntington Beach
14
15
or the Redevelopment Agency of the City of Huntington
15
16
Beach, hired any consultants/experts of any kind to analyze
16
17
Burlington Coat Factory?
17
18
A. Not at all
18
19
Q. Okay. Have there been any type of —
19
20
A. Wait Wait I've hired appraisers, appraisers
20
21
and fixture and equipment appraisers to appraise the
21
22
Burlington Coat Factory property.
22
23
Q. And that's -- when did you do that?
23
24—
A. Recently, in the last couple of months.
24
25
Q. And the name of the real estate appraiser is?
25
38
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
A. Donahue & Company.
Q. And the F&E appraiser company is?
A. Donahue Novak & Associates Valuation Services.
Q. What information have you provided Donahue &
Company, the real estate people?
A. I have not provided them any information other
than their authorization to proceed with their appraisal.
Q. Why do you want an appraisal of Burlington Coat
Factory?
A. We need to understand the whole financial impact
of the proposal submitted by Ezralow to be able to
determine what role the Redevelopment Agency might take in
the future, both financially and otherwise.
Q. Is that inclusive of contemplating what a
potential gap might be?
A. That's part of it
Q. What else?
A. Well, there's a whole series of actions that we
could take. We haven't determined those yet
Q. What are the series of actions or options?
A. It varies depending on what the developer needs.
We don't try to anticipate what may be needed to carry out
a project.
Q. My question —
A. It's a step-by-step process, and we have not even
39
gotten to the first base in this particular case. We
selected the developer, Ezralow, and we have not determined
what actions may be necessary to carry out the
redevelopment of the center.
Q. What options have you discussed with Ezralow
relative to Burlington Coat Factory?
A. We have not discussed any particular actions
because we have not determined what has to occur at the
center yet
Q. Are you involved in the OPA negotiations?
A. Indirectly, yes.
Q. Who is principally involved from the City or
Redevelopment Agency side with respect to negotiating the
OPA?
A. David Biggs and Murray Kane, who is our legal
counsel, special legal counsel
Q. And do you anticipate when the OPA will be
completed?
A. No, I don't know.
Q. Do you know what a DDA is?
A. Yes, I do.
Q. Is this an OPA or a DDA?
A. This should be an owner participation agreement
The owner is already in place. They own the Huntington
Center. You only do a disposition development agreement
40
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1 when you're trying to acquire other property. I don't I 1
2 think the Anal document has really been decided upon.
2
3 Q. Very good Now, the fixtures and equipment
3
4 expert, Donahue Novak, have you provided them any
4
5 information?
5
6 A. No, just then: authorization to proceed.
6
7 Q. Okay. Now, am I correct that these appraisals
7
8 may also be used for you to contemplate a condemnation
8
9 procedure?
9
10 A. If that's what's called for, but that decision
10
11 has not been made.
11
12 Q. Okay. Have you, Mr. Duran, ever made any
12
13 comments to anyone from Ezralow or Ezralow's
13
14 representatives that the City or the Redevelopment Agency
14
15 will use its police powers to get rid of Burlington Coat
15
16 Factory?
16
17 A. Not at all
17
18 Q. Have you ever heard that statement made by any
18
19 employee or elected official at the City of Huntington
19
20 Beach?
20
21 A. Not at aA. I think I've heard it more from you
21
22 and your associates than anybody else.
22
23 Q. Have you heard of Melanie Fallon?
23
24 A. Yes, I have.
24
25 Q. Who is Melanie Fallon?
25
41
1 A. She used to be the Assistant City Administrator.
1
2 Q. Do you know when she left?
2
3 A. I think she left a couple of months back. I'm
3
4 not certain of the date.
4
5 Q. Was it in June of 2000 or May of 2000?
5
6 A. It may have been at the end of May.
6
7 Q. Okay.
7
8 A. But I'm not certain. You'll have to check the
8
9 City records.
9
10 Q. Now, she was the Assistant City Administrator,
10
11 you said?
11
12 A. Correct.
12
13 Q. You got therein June 1998. Was she already
13
14 there in that position?
14
15 A. No, she was the bead of the Community Development
15
16 Departmett when I arrived with the-ity of Huntington
16
17 Beach:.
17
18 Q. And when did she become the Assistant City
18
19 Administrator
19
20 A. Probably about = either at the end of '" or the
20
21 beginning of'".
21
22 Q. Okay. Did you ever have any conversations with
22
23 Melanie Fallon relative to Burlington Coat Factory?
23
24 A. Not at all.
24
25 Q. Lid you ever have any conversations with
25
42
Melanie Fallon relative to the redevelopment of the
Huntington Center?
A. Not at all.
Q. What involvement are you aware that Melanie
Fallon had as the Assistant City Administrator working with
Ray Silver in the redevelopment project at Huntington
Center?
A. Minimal, if any. I'm not aware of she being
involved.
Q. Did you ever see any memos authored by
Melanie Fallon relative to the redevelopment of the
Huntington Center?
A. No.
Q. Is there anyone else in Ray Silver's office or
that Ray Silver works directly with besides his secretary
and Melanie Fallon? I know she's gone now, but is there
anyone else?
A. That works in what respect?
Q. That works in the City Administrator's office,
anyone with him?
A. He has a stall, but I don't know the number of
people in the staff or their. functions..
Q. Is there anybody on Mr. Silver's staff that you,
as the Director of Housing and Redevelopment, have worked
in connection with the redevelopment of the Huntington.,
43
Center?
A. My title is Housing and Redevelopment Manager.
Q. I'm song?
A. The question again?
Q. The question is: In your capacity as the Housing
and Redevelopment Manager, have you worked with anyone in
Mr. Silver's staff in connection with the redevelopment of
the Huntington Center?
A. No.
Q. Okay. How many times have you met with Ezralow
persons or representatives?
A. Several times, and I don't recall the number of
times.
Q. Is that both in 1999 and 2000?
A. Yes.
Q. Who have you met from Ezralow?
A. Bryan Ezralow, Doug Gray. There's a couple of
other people. I don't remember their names because
sometimes I attend the meettep but there was no list or
anything passed around.
Q. Scott Dinovitz?
A. Scott Dinovitz. You're right. Scott Dinovitz
and his father, Mr. Dinovitz. I forget his first name.
Q. Lawrence Dinovitz?
A. I don't remember his first name.
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1
2 James Hughes?
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3 A. Yes, I have.
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4 Q. When you've met with these people, what has
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5 Mr. Bryan Ezralow stated to you?
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6 A. What has he stated to as?
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7 Q. Yes.
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8 A. The meetings we had were in relationship to
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9 knowing his company, understanding his company, and
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10 understanding their vision for the Huntington Center.
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11 Q. All right. What conversations have you had with
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12 Doug Gray?
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13 A. Conversations? Again, they were in relationship
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14 to meetings. Other than those conversations, they have
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16 They're very -- just friendly conversations, but other than
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17 us requiring documents, requesting documents from Ezralow
17
18 and plans and brochures and the videos.
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19 Q. What conversations have you had with
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20 Scott Dinovitz relative to the Huntington Center?
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21 A. The only conversation I've had with him is where
21
22 I requested plans so that we could make them available to
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23 you because the blueprints are very large and we don't have
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24 access to those plans.
24
25 Q. And how many times have you met James Hughes?
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A. Two times.
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Q. And when were those times?
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A. I don't remember the dates. I don't remember the
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dates, but I think they were earlier this year.
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Q. Why did you meet with James Hughes twice?
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A. Because he came to the meetings with Mr. Bryan
6
7
Ezralow and Doug Gray.
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Q. The closed session meetings?
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MR. SHIPOW: Objection. Mischaracterizes the
9
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testimony.
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MR. TEPPER: That's all right.
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THE WITNESS: Not the closed session meetings.
12
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BY MR. TUCHMAN:
13
14
Q. Which meetings?
14
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A. Meetings we had with the Ezralow Company.
15
16
Q. Are there any memos which reflect those meetings?
16
17
A. No.
17
18
Q. How long did those meetings last where
18
19
James Hughes attended?
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20
A. Probably about an hour or so.
20
21
Q. And what was.discussed with James Hughes?
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A. He basically was there to provide legal counsel
22
23
to his client, and that involved basically discussions
23
24-
about Huntington Center.
24
25
Q. Anything else?
25
46
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
A. Not really.
Q. Did you ever have any conversation or did you
ever hear Mr. James Hughes speak about Burlington Coat
Factory?
A. He indicated that they had a lease with
Burlington coat, a 30-year lease, and they had difficulty
with that lease.
Q. What does that mean, "They had difficulty with
thatlease"?
MR. SHIPOW: Objection. Calls for speculation.
BY MR. TUCHMAN:
Q. You can answer the question.
MR. SHIPOW: Don't — you're asking the witness
to speculate as to what Mr. Hughes meant?
MR. TUCHMAN: You can ask him questions later,
Mr. Shipow. .
MR. SHIPOW: I'm interested in making sure the
record is clear. I object. Calls for speculation as to
what Mr. Hughes meant.
MR. TUCHMAN: Very good Make objections.
BY MR. TUCHMAN:
Q. You can answer.
A. What is the question again?
Q. Do you know what he meant when he said there are
difficulties with the lease?
47
MR. SHIPOW: Same objections.
THE WITNESS: I do not know what he meant.
BY MR. TUCHMAN:
Q. Did you have any sense of what he was talking
about?
MR. SHIPOW: Objection. Ambiguous.
THE WITNESS: Not really.
BY MR. TUCHMAN:
Q. Did somebody describe at the meeting in detail or
try and illustrate what difficulty there was with the
Burlington Coat Factory lease?
A. Oh, they had a 30-year lease. That's about all I
know, and they aim to reposition the center and the
marketplace, and apparently they find it di®cult to deal
with the 30-year lease and their plans they're trying to
implement.
Q. There was a word that I didn't understand. You
said "reposition"?
A. Reposition the center.
Q. When that discussion came up, did the City or
anyone from the City respond to the concern that Hughes
expressed?
A. We just commensurated with Mr. Hughes.
Q. What does that mean?
A. Meaning, we understand the situation he
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BURLINGTON V. HUNTINGTON CENTER
1 explained, but there's not mach we can do about it because I 1
2 we're not — we're not the landlord We're not the owner 2
3
of the property.
3
4
Q. Did you tell — did you give him any instructions
4
5
on how to deal with Burlington Coat Factory?
5
6
A. Not at all.
6
7
Q. Did anyone from the City say that the City or the
7
8
Redevelopment Agency will use its powers to get rid of
8
9
Burlington?
9
10
A. Not at all.
10
11
Q. Did Mr. Hughes ever report to you their attempts
11
12
to negotiate with Burlington Coat Factory?
12
13
A. They indicated to us they've had meetings with
13
14
Burlington Coat.
14
15
Q. And what was said?
15
16
A. I don't know what was said.
16
17
Q. Well, what was reported to you?
17
18
A. That the meetings had not gone well. They've
18
19
been rebuffed by Burlington Coat personnel, and that they
19
20
were impasse.
20
21
Q. Do you know any of the details of what was
21
22
discussed between Burlington and Ezralow?
22
23
A. Not at ail.
23
24
Q. Now, have you heard anybody at the City, an
24
25
elected official or non -elected person, indicate that they
25
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49
do not want Burlington Coat Factory at the center?
A. Not at all.
Q. In your position as the Housing and Redevelopment
Manager, have you made any determination one way or the
other as to whether Burlington Coat Factory should remain
in Huntington Center?
A. That has not been determined.
Q. Is it your decision to make, Mr. Duran?
A. No.
Q. Whose decision is it to make?
A. The Redevelopment Agency Board.
Q. And has the Redevelopment Agency Board made the
determination?
A. Not at all.
Q. As of right now, is it the Redevelopment Agency
Board's decision?
A. To do what?
Q. To determine right now, as we sit here today, on
July 26th, 2000, as to whether Burlington Coat Factory
should be one of the tenants?
MR. SHIPOW: Objection. Ambiguous.
THE WITNESS: Not at all. The answer is "not at
all."
BY MR. TUCHMAN:
Q. And to determine who is to be a tenant at the
50
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tl
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Huntington Center, that's a decision by Ezralow or one of
its entities; isn'tthat right?
A. Coned.
Q. All right. Has the Agency — the Redevelopment
Agency or the Economic Development Department told Ezralow,
"Do not include Burlington Coat Factory in anything you
submit to us"?
A. Not at all.
Q. Okay. Has the Planning Department or any other
department, to your knowledge, instructed Ezralow to not
include Burlington Coat Factory in any proposals it submits
for redevelopment?
A. Not at all.
Q. Has the Redevelopment Agency or the Economic
Development Department instructed Ezralow to include
Burlington in its proposal?
A. Not at afi"
Q. Right now the position of the Economic
Development Department and you, as the Housing and
Redevelopment Manager, towards Burlington is what?
A. Mutual.
Q. You re familiar with the the SP-12 and SP-13 to a
certain degree?
A. I'm familiar with the documents because they were
provided to our office for review and analysis.
51
Q. Why were those documents provided to your office
for review and analysis?
A. Because all phtns submitted to the Planning
Department get routed to all the departments for their
review and analysis. This includes Public Works, fire
department, police department, to see if there is anything
there that will impact those departments or those
departments have any information that will impact those
plans.
Q. Okay. Did the Economic Development Department,
after receiving any plan, respond to the Planning
Department in any way that pertained to Burlington Coat
Factory?
A. Not that I remember, no.
Q. You were involved in that process, were you not?
A. Yeah, I think one man or two men were detailing
our concerns from our economic development perspective.
Q. Okay. Do you know when the property closed;
meaning, when the deal closed for Ezralow to buy the
property?
A. I think it was November or December of 19".
Q. Was there a meeting the night before escrow
closed, a closed session?
A. I don't remember because I don't know the dates.
Q. We previously had marked Exhibit 6, if you want
52
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to take a look at it. This is page 3 of the Council
Minutes. If you look up at the top, it refers to a "closed
session."
A. Okay. What about it?
Q. Do you recognize Exhibit 6?
A. Yeah.
Q. Okay. Were you in attendance at this meeting on
11/15/99?
A. Yes.
Q. What happened at that meeting?
A. Basically we -- the Redevelopment Agency felt
comfortable with Ezralow purchasing the property.
Q. Were there any representations made on
November 15, 1999, to Ezralow, promises made by the
Redevelopment Agency or the City?
A. No promises.
Q. Was Burlington Coat Factory discussed at the
meeting on 11/15/99?
A. Not that I remember.
Q. Was Burlington Coat Factory discussed at any
closed sessions in 1999?
A. Not in 19".
Q. In the year 2000 Burlington Coat Factory was
discussed in closed sessions?
A. Yes.
53
Q. How many times?
A. One time.
Q. And that time was on July 17, 2000?
A. Yes.
Q. And that had to do with the —
A. lawsuit —
MR. TEPPER: Ask the question, please.
BY MR. TUCHMAN.
Q. And that had to do with the instant lawsuit? -
A. Can you ask the question —
MR. TEPPER: Ask the whole question so that I may
interpose my objection.
BY MR. TUCHMAN:
Q. The only time Burlington Coat Factory was
discussed at a closed session meeting was one time and that
was July 17, 2000?
MR. TEPPER: You can answer "yes" or "no."
THE WITNESS: -Yes.
BY MR. TUCHMAN:
Q. Okay. And were there different items agendas or
was it one item pertaining to Burlington?
MR. SHIPOW: Objection. Ambiguous.
BY MR. TUCHMAN:
Q. Well, you know what an RCA is, an RAA?
A. Correct
54
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1 Q. Was there one item or two items pertaining to
2 Burlington?
3 A. The RCA and RAA have nothing to do with the
4 closed session.
5 Q. Okay. The closed session — were there one or
6 two issues discussed at the closed session regarding
7 Burlington?
8 A. Just one issue.
9 Q. What was the issue? What was the topic?
10 MR. TEPPER: Only give the subject matter. But
11 subject to that subject matter answer, everything else is
12 objected to on the grounds of attorney/client privilege.
13 Give the subject matter of the closed session related to
14 Burlington.
15 THE WITNESS: Real estate appraisal.
16 BY MR. TUCHMAN:
17 Q. Okay. And what was discussed regarding the real
18 estate appraisal?
19 MR. TEPPER: Objection. Attorney/client
20 privilege.
21 MR. TUCHMAN: And any further questions on the
22 closed session, you ll object?
23 MR. TEPPER: No, I want to hear questions.
24 BY MR. TUCHMAN:
25 Q. Who was in attendance in the meeting?
55
1 MR. TEPPER: You can answer that.
2 THE WITNESS: Murray Kane, David Biggs,
3 Ray Silver, the Agency Board, minus Mayor Garfalo
4 (phonetic). He was not there.
5 BY MR. TUCHMAN:
6 Q. Was a resolution or decision made after that
7 closed session?
8 A. Yes.
9 Q. And what was that decision?
10 MR. TEPPER: Was it given -- ask if it it was
11 given in public session.
12 BY MR TUCHMAN:
13 Q. Was it given in public session?
14 A. I don't know because I did not stay for the
15 public session.
16 MR. TEPPER: Okay. If you don't know, then I
17 will object.
18 MR. TUCHMAN: He just said he doesn't know.
19 MR. TEPPER: Okay.
20 MR. TUCHMAN: Okay.
21 BY MR. TUCHMAN:
22 Q. And was a resolution arrived at in the closed
23 session, whether it was announced or not?
24 MR. TEPPER: You can answer that.
25 THE WITNESS: Yes.
56 1
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BY MR. TUCH]MAN:
Q. Did you participate in the discussion?
A. Not at alL
Q. I want you to take a look at Exhibit 7, which
was previously marked. Take a look at Exhibit 7. Have you
ever seen Exhibit 7 before?
A. Let me look at it first.
Q. Please.
A. Yes, I have.
Q. When is the first time you saw Exhibit 7?
MR. TUCHMAN: And, for the record, that's the
memo dated June 5, 2000, from Ray Silver to
Howard Zelefsky.
THE WITNESS: I saw it right prior to the City
Council meeting where the specific plan was submitted for
approval.
BY MR. TUCHMAN:
Q. That was July 5, 2000?
A. Sounds about right.
Q. Do you know who typed up Exhibit 7?
A. No, I do not.
Q. Okay. Did you ever discuss Exhibit 7 with anyone
around June 5, 2000?
A. Not at all.
Q. I want you to take a look at Exhibit 15.
57
MR. TUCHMAN: I think you folks have it, and
Exhibit 15 -- the last page is another copy of Exhibit 7.
BY MR. TUCHMAN:
Q. Do you recognize the —
A. Okay. What about it?
Q. Look at the third page. Do you recognize this
writing at the bottom, this code?
A. It's whoever typed the document generated iL
Q. Do you know who typed the document from looking
at this code?
MR. SHIPOW: Objection. Calls for. speculation.
THE WITNESS: I don't know because it's not in a
way that I can tell the name.
BY MR. TUCHMAN:
Q. Okay. Do you recognize this as — what was
Jane James' maiden name? —
A. Jane Madera, which is here.
Q. Yeah. Do you know if this is a code that is used
by the Economic Development Department?
A. No, we use a little differently.
Q. Okay. Do you recognize this as a code that
Planning used?
A. I don't — I can't tell.
Q. That's fine. Did you discuss Exhibit 7 with
anybody, ever?
58
1 A. Not at all.
2 Q. This is Exhibit 7 here. Do you know how it came
3 about?
4 A. How it came about? I don't know how it came
5 about.
6 Q. Very good-
7 A. I was not involved in anything relating to that.
8 Q. Thank you. You understand there is now an issue
9 relative to Exhibit 7 and its impact on the lawsuit between
10 Ezralow and Burlington?
11 . MR. TEPPER: Objection to the form -- to the use
12 of the word "issue" as relevant. It certainly is
13 argumentative.
14 MR. SHIPOW: Argumentative and ambiguous.
15 BY MR. TUCHMAN:
16 Q. You can answer the question.
17 MR. TEPPER: You better ask it again. Read the
18 question, please.
19 (Whereupon the previous question was read
20 back by the court reporter as requested.)
21 THE WITNESS: I don't know what issue you're
22 talking about.
23 BY MR. TUCHMAN:
24 Q. Thank you. Were you involved — if 1 say "RFP,"
25 what does that mean?
F11]
A. Request for Proposal.
Q. What is an RFP?
A. It's a request to various parties to submit a
4 proposal for a variety of things, all the way from
5 contracting to perform appraisals to consider the
6 redevelopment of a piece of property. Cities and
7 redevelopment agencies use Request for Proposals for many
8 actions that they may wish to undertake.
9 Q. Did you -- take a look at Exhibit 9. Were you
10 involved — first of all, what is Exhibit 9?
11 A. I.et me read It first
12 Q.
Please. Take your time. "
13 A.
Okay. What is the question?
14 Q.
Do you recognize Exhibit 9?
15 A.
Yes, I do.
16 Q.
What is exhibit 9?
17 A.
Exhibit 9 is a Request for a Statement of
18 Interest and a Request for Proposal from the Redevelopment
19 Agency to the property owners or long-term leaseholders of
20 Huntington Center.
21 Q.
Did you prepare Exhibit 9?
22 A.
It was prepared by our legal counsel, Mr. Murray
23 Kane.
24 Q. Okay. Did you participate in any part of its
25 preparation, Exhibit 9?
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A. I was responsible for ensuring that it get typed
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and sent out to the parties involved.
2
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Q. Okay. Thank you. And you received how many
3
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responses?
4
5
A. We received three responses, one from Burlington
5
6
Coat; one from Montgomery Ward; and one from Ezralow
6
7
Company.
7
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Q. Did you ever review — and you received those
8
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three Statements of Interest; am I correct?
9
10
A. Correct.
10
11
Q. The R for Ps, you sent out to Burlington; you
11
12
sent out to Ezralow; you sent it out to Montgomery Ward's.
12
13
Did you send it out to anybody else?
13
14
A. Yes, I did, long-term leaseholders at the
14
15
Huntington Center,, which included Circuit City, the book
15
16
store.
16
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Q. Barnes & Noble?
17
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A. Barnes & Noble- I think even See's Candy. There
18
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were other — anybody that had a long-term lease at the
19
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center was sent a letter of interest-
20
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Q. Mervyn's?
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A. Mervyn's.
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Q. And Southern California Edison?
23
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A. Not Southern California Edison.
24
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Q. Okay. Did Circuit City, Barnes & Noble, See's,
25
61
1
or Mervyn's respond?
1
2
- A. Not at all.
2
3
• Q. Okay. Now, at some point you also received
3
4
proposals around May 2, 2000; am I right?
4
5
A. Correct.
5
6
Q. And there were three proposals that were received
6
7
from -- one from Burlington, one from Ezralow, one from
7
8
Montgomery Ward?
8
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A. Correct.
9
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Q. And it was determined by the Redevelopment Agency
10
11
that really only one of them was suitable?'
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A. Correct.
12
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Q. And that one was Ezralow's?
13
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A. Correct.
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Q.. And that determination was made on June 19th,
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2000?-
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A. Uh-huh.
17
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Q. Is that a "yes"?
18
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A. Yes,
19
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Q. Did you discuss the Burlington proposal with any
20
21
Planning staff members between May the 2nd, 2000, and
21
22
June 19th, 2000?
22
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A. No.
23
2*
Q. Did you review the Burlington Coat Factory lease
24
25
at any time?
25
62
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
A. No.
Q. Okay. Has anybody told you what terms are
included in the Burlington Coat Factory lease?
A. No.
Q. You do know that it's a long-term lease?
A. It's a 30-year lease-
Q. And do you know when it expires?
A. I didn't check the year.
Q. Since it's a long-term lease, Burlington Coat
Factory, in terms of the RFP process, qualifies as an
owner; is that correct?
A. I'm not so sure it qualifies as an owner, but it
qualifies as a potential proponent.
- Q. Well, are there any rules governing the owner
participation?
A. Any long-term leaseholder qualifies for a
submitted proposal
Q. And does Burlington fall into that category?
A. Yes, they do.
Q. Has anybody told you that there are special
redevelopment provisions contained in the lease?
A. I've heard that there may be redevelopment
provisions, but I'm not aware of the details, legal
details, because not being an attorney, I leave it to the
attorneys to interpret that.
63
,Q. Did you ever have any conversations with anyone
from Macerich relative to the redevelopment language
contained in the lease?
A. No.
Q. Okay. I want to draw your attention to
Exhibit 11, which is a letter dated March 28th, 2000, to
Douglas Gray, signed by David Biggs.
Please take a look at 11.
A. Okay. What about this letter?
Q. Do you recognize Exhibit 11?
A. Yes, I do.
Q. And do you recognize Mr. Biggs' signature?
A. Yes, I do.
Q. Did you see this letter before it went out?
A. I prepared it. If you look at the bottom, it has
my name
Q. Let me see. Thank you. Oh, yes, at the bottom
of Exhibit 11 it says, "3/28/00, Gus Duran, Ezralow, Gray
letter document." That's a code from your computer?
A. Correct.
Q. Why did you prepare Exhibit 11?
A. So that we could determine which tenants were
eligible to be sent the previous letter that you brought to
my attention.
Q. Exhibit 9?
64
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BURLINGTON V. HUNTINGTON CENTER
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6
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9
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A- The Request for Statement of Interest and Request
for Proposal
Q. But Exhibit 9, the Statement of Interest and
Request for Proposal, is dated March 3, so I'm not
following you.
A. I can't tell you. We requested this -- the
letter speaks for itself; so I don't know what you want me
to answer to you.
Q. Well, my question is: Why, as of March 28th,
2000, did you request the leases?
A. So that we could asses the financial impact of
any proposals that Ezralow may -- was going to submit.
Q. Did Ezralow respond to your letter, to
Exhibit 11?
A. Yes, they did.
Q. And what was their response?
A. They did not provide us with the leases.
Q. Do you know why they didn't provide you with the
leases?
A. No.
Q. Did they tell you why they didn't provide you
with the leases?
A. Well, they didn't want to provide us with the
leases at that point in time. They felt most of the leases
were not relevant to -- to what we had -- what we were
65
doing at the time.
Q. Did they advise you that they would not provide
you with the leases in writing or over the phone?
A. Over the phone.
Q. Who did you -- and who reported that to you?
A. Doug Gray.
Q. And did you report that to Mr. Biggs?
A. I told him.
Q. What did Mr. Biggs say about that?
A. He didn't feel it was totally necessary at this
point in time.
Q. Is it necessary at this point in time, July 26,
2000, to have all the leases for the Economic Development
Department acting on behalf of the Redevelopment Agency?
A. Probably wilt be, but we haven't yet requested
them► Q. Okay. With respect to the tenant issues, did
Ezralow ever tell you that they intended to evict all the
tenants?
A. They told as that they were going to terminate
the month -to -month tenancies they had.
Q. Okay. And did they, in fact, do that?
A. I guess they did.
Q. Okay. And do you know if they ever told you that
they wanted to terminate the Burlington lease?
66
1 MR. TEPPER: Asked and answered. Go ahead.
2 THE WITNESS: Pardon me?
3 MR. TEPPER: You may answer.
4 THE WITNESS: I'm not sure if they said
5 "terminated," but they were trying to work something out
6 with Burlington, either to move them, to relocate them,
7 because of their plan -- of the plans to redevelop the
8 mall.
9 MR. TUCHMAN: Very good. i think we should take
10 a five-minute break. Is that okay?
i l THE WITNESS: Sure.
12 (A brief recess was taken.)
13 MR. TUCHMAN: Let's go back on the record.
14 111 ask the reporter -- actually, it's already
15 been marked as Exhibit 13.
16 BY MR. TUCHMAN:
17 Q. Please take a look at Exhibit 13 and see if you
18 recognize it.
19 A. I've seen this, but I was not in attendance at
20 that meeting.
21 Q. Okay. It seems to indicate that you were. Do
22 you know why?
23 A. I was not because if you look at the list of
24 signings, my name is not there. It only —
25 Q. The Minutes have you there.
67
1 A. Really?
2 MR. SHIPOW: Objection. Mischaracterizes the
3 document, I think. I'm sorry. I take that back.
4 THE WITNESS: Which Minutes?
5 BY MR. TUCHMAN:
6 Q. It says, "April 20th, 2000, City of Huntington
7 Beach Attendees," and it has you there.
8 A. I'm not 100 percent certain I was there even
9 though my name is listed. Often times my name is listed
10 because I'm asked to be at a meeting, but when there are
11 conflicts -- because I have not been in any meetings with
12 dayna. That's why I say that.
13 Q. Okay. So do you recognize Exhibit 13?
14 A. I recognize the documents.
15 Q. Okay. Do you have any recollection of attending
16 this meeting on April 13, 2000?
17 A. No, I don't.
18 Q. Thank you. Under what circumstances do you go to
19 project meetings or study sessions?
20 A. That's too general of a question.
21 Q. Do you attend all Planning session -- Planning
22 session meetings that occur prior to Planning Commission?
23 A. No, I don't.
24 Q. What determines when you, Gus Duran, go?
25 A. Depending on the particular topics, the issues in
68
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that topic- Most Planning meetings I do not attend.
1
2
Q. When it concerns redevelopment of the
2
3
Huntington Crossings, you like to attend those meetings?
3
4
A. Some; not all. Depending on the particular
4
5
issues that are going to be discussed at the meeting.
5
6
Q. What determines whether Air. Biggs or you,
6
7
Mr. Duran, go to study sessions?
7
8
A. Study sessions?
8
9
Q. Yes.
9
10
A. One of us have to attend.
10
11
Q. And why is that?
11
12
A. Only for -- if we have a project.
12
13
Q. I understand that.
13
14
A. So we can hear the Planning Commissioner's
14
15
comments, see where they're coming from, see what their
15
16
interest is, what kinds of project -specific comments they
16
17
have.
17
18
Q. Do you -- in your position as the Housing and
18
19
Redevelopment Manager, do you have direct contact with
19
20
Planning commissioners?
20
21
A. No, I don't.
21
22
Q. Do you, in your position as the Housing and
22
23
Redevelopment Manager, have direct contact with City
23
24
Council members?
24
25
A. Only related to the meetings we have with them.
25
69
1
Q. Have you, Mr. Duran, spoken directly to any
1
2
Council members regarding the Huntington Center — the
2
3
mall?
3
4
A. No.
4
5
Q. Have you, Mr. Duran, spoken directly to any
5
6
Planning commissioners regarding the Huntington Center Mall
6
7
and the redevelopment?
7
8
A. No.
8
9
Q. Have you spoken to anybody at -- have you spoken
9
10
to Jane James regarding Burlington Coat Factory?
10
11
A. Yes, I have.
11
12
Q. How many times?
12
13
A. Maybe five, se. times
13
14
Q. Can you delineate the times you've spoken to her?
14
15
A. I don't recollect the particular times
15
16
Q. Can you distinguish between the different
16
17
conversations you've had with Jane James?
17
18
A. Somewhere she has questions of as regarding the
18
19
plan, such as the comments we made that we are not
19
20
interested in the plan, including food -type establishments,
20
21
such as a supermarket. We were not interested in the
21
22
center having an athletic -type facility because they take a
22
23
lot of parking and take away from the retail parking for
23
24
. the retailers, comments about landscaping, comments about
24
25
parking structure.
25
70
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
Q. My question focuses on Burlington Coat Factory.
Did you have any conversations with Jane lames regarding
the Burlington Coat Factory?
A. Only to the fact that we needed documents to
provide to Mr. Tepper to bring to you.
Q. And you told her she needed to provide all
documents pertaining to the Huntington Center's
redevelopment?
A. She was giving specific instructions to aperture
files and do cataloguing so we could turn them over to
Mr. Tepper.
Q. Are you aware that she catalogued those files?
A. I'm not aware because I think — wait a minute.
Yes, I am. The files came to her office and we Federal
Expressed them to Mr. Tepper.
Q. Okay. The documents —
A. I did not review the files.
Q. The document 3-B, did this — does this list
include the Planning Department documents?
A. I'm not sure.
Q. Take a look, please.
A. It looks like it does, yes.
Q. Okay. So the EDD put together the index of its
own documents and Planning?
A. Planning, no. Planning did their own index.
71
Q. Okay.
A. Yeah, they did their own index. That's why it
looks different than oars
Q. So the first few pages actually came from
Planning?
A. Correct..
Q. It looks like the first four pages are Planning.
A. It looks that way, yeah.
Q. Okay.
A. Now, besides speaking to Jane James regarding
providing documents pertaining to the Burlington issue at
Huntington Center, have you ever talked to her, Jane James,
about Burlington Coat Factory?
A. Not relating to anything other than — no, not at
all.
Q. Do you know who Herb Fauland is?
A. I think be's a senior planner in the Planning
Department, yes
Q. That's one of Jane's supervisors?
A. Correct,
Q. Mr. Fauland, his last name is F-a-u-I-a-n-d?
A. Correct
Q. And have you spoken to him regarding the
Burlington Coat Factory?
A. Not at aiL
72
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GUSTAVO A. DURAN, 07.26.00
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l Q. Have you spoken to Mr. Zelefsky regarding
1
lease and you had a dispute with Burlington — with
2 Burlington Coat Factory?
2
Ezralow.
3 A. Orly relative to what [just mentioned, which
3
Q. Okay.
4 is — not about Burlington Coat Factory, only relevant to
4
A. And we had no interest in being involved with
5 the specific plan and the uses. The Economic Development
5
that.
6 Department did not wish to be included in the specific
6
Q. To this day, does the City or you, as the Housing
7 plan.
7
and Redevelopment Manager, have an interest in the issues
8 Q. Okay. I want you to take a look at Exhibit 10,
8
involved between Burlington and Ezralow?
9 please, and ask if you recognize it.
9
MR. TEPPER: Objection. Calls for a legal
IO A. Yes, I wrote this letter to you.
10
conclusion insofar as the City and the Agency and
t 1 Q. And you wrote Exhibit 10 on or about March 6th,
11
individuals are named as defendants in a Federal action
12 2000, and sent it to Tuchman & Associates; correct?
12
filed with -- filed by Burlington against them.
13 A. Correct
13
BY MR. TUCHMAN:
14 Q. Was this letter — content of your letter
14
Q. You can answer.
15 reviewed with any -- reviewed with your supervisor,
15
MR. TEPPER: If.you know the answer..
16 Mr. Biggs?
16
THE WITNESS: The answer is "no."
17 A. Yes, it was.
17
BY MR. TUCHMAN:
18 Q. Okay. Was it reviewed with any other persons?
18
Q. Okay. Did anyone else tell you besides Mr. Biggs
19 A. No, it was not
19
that a meeting should not take place between Ezralow,
20 Q. Why did you make the statement that you did not
20
Burlington, and the City?
21 want to have a meeting?
21
MR. TEPPER: Objection. Mischaracterizes the
22 A. Because we saw no relevancy having a meeting with
22
testimony the witness gave about Mr. Biggs.
23 you, and we could see from your questioning over the phone
23
THE WITNESS: I think Counsel answered it
24 and your interest that you were trying to draw us into your
24
BY MR. TUCHMAN:
25 landlord/tenant dispute.
25
Q. Counsel can't answer for you. The only time that:
73 1 75
1 Q. Do you know how long prior to March 6th, 2000, a
1
you shouldn't answer a question is if your counsel
2 meeting was requested and how many times?
2
instructs you not to answer.
3 A. I think twice your office called our office —
3
MR. TEPPER: Well, then let's go back and read
4 Q. Yeah.
4
the answer to the question as originally posed.
5 A. -- to have meetings and we declined to have
5
MR. TUCHMAN: Go right ahead.
6 meetings with you.
6
(Whereupon the previous answer was read
7 Q. And that was in February 2000?
7
back by the court reporter as requested.)
8 A. Uh-hah.
8
BY MR. TUCHMAN:
9 Q. Is that a "yes"?
9
Q. Let's go back to my question. Besides talking to
10 A. Yes.
10
Mr. Biggs about whether there should be a meeting with
11 Q. And did you discuss with Mr. Biggs why you did
11
Burlington, Ezralow, and the City, did anyone else talk to
12 not want to have these meetings?
12
you about that subject?
13 A. Yes.
13
A. No.
14 Q. And what did Mr. Biggs say?
14
Q. Okay. Did you ask somebody else like the City
15 A. He said, "You're correct."
15
administrator whether we should have a meeting or not?
16 Q. I'm sorry. I didn't understand -your answer.
16
A. No.
17 A.- "You're correct, we shouldn't have meetings with
17
Q. Are you aware if Council Member Bower ever made
18 the law firm representing Burlington Coat We have no
18
an inquiry of you as to whether such meetings were ever
19 business with them."
19
requested?
20 Q. And did Mr. Biggs elaborate as to why you,
20
A. No.
21 meaning the City or Redevelopment Agency, had no business
21
Q. Okay. Did you already have a copy of the lawsuit
22 with them?
22
against Ezralow in your file as of March 6, 2000?
23 A. Because we knew there was a landlord/tenant
23
A. Yes, because I'm acknowledging that you sent me
24 dispute ongoing. Even the times you called, or one of your
24
the lawsuit when we didn't request it We didn't know why
25 associates called, indicated that you had this 30-year
25
you sent as the lawsuit
74 1 76
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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Q. My question is: Before I sent it to you, did you
have a copy of it?
A. No.
Q. Is there a person at the City or the Economic
Development Department or any other agency that was
assigned to watch or monitor the litigation between Ezralow
and Burlington Coat Factory?
8 A. No.
9 Q. Were you or anyone, to your knowledge, in contact
10 with Mr. Hughes or anyone from his office as to the
11 progress of the actions pending between Burlington and
12 Ezralow?
13 A. No.
14
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8
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Q. Were you ever asked to provide a declaration in
any form for any of the lawsuits?
A. Not that I'm aware of
Q. Are you aware what happened to the Petition to
Compel Arbitration, the first action?
A. Am I aware of what?
Q. Of what happened to the first action?
A. Yes.
Q. And who told you that?
A. Douglas Gray. -
Q. What did he say to you?
A. He says that the Court dismissed it.
77
Q. And do you know what was being sought in the
first action?
A. Not really.
Q. Did anybody tell you that the first action was
only an attempt to resolve the issues of redevelopment by
way of arbitration?
MR. SHIPOW: Objection. Mischaracterizes the
lawsuit.
BY MR. TUCHMAN:
Q. You can answer the question.
A. What's the question again?
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Yes, I am familiar with it because
I read the lawsuit
BY MR TUCHMAN:
Q. The next — the subsequent lawsuit against
Ezralow, brought by Burlington, are you familiar with that?
& Yes, I am.
Q. Did you receive a copy of the Complaint?
A. No, I don't think so.
Q. Did you discuss that Complaint — that action
with Douglas Gray?
A. Only alter the fact, after the Court had ruled on
the Complaint
78
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
I Q. Is that case, to your knowledge, over?
2 A. As far as I know.
3 Q. Okay. What did Mr. Gray say?
4 A. That it was dismissed also.
5 Q. Okay. And when did he say that?
6 A. I think it was at the public hearing when the
7 Agency was recommending the developer so that we could
8 pursue the redevelopment of the Huntington Center.
9 Q. Was that in writing or was that verbally?
10 A. Verbally, because I think the decision was made
11 the same day by Court.
12 Q. This comment or this advice to you by Mr. Gray,
13 did this factor into your determination as to whether
14 redevelopment should go forward?
15 A. Not at alL
16 Q. Were you ever told what was pending on the same
17 day as the Planning Commission meeting was a temporary
18 restraining order?
19 A. The question again?
20 Q. Were you ever told that on the same day of the
21 Planning Commission meeting was pending, that there was a
22 temporary restraining order?
23 A. I remember something about it, but it didn't
24 really impact what we were doing.
25 Q. Okay. Did anybody tell you what happened to the
79
1 temporary restraining order?
2 A. I believe it was also dismissed.
3 Q. What else did Mr. Gray tell you regarding the
4 second action?
5 A. That's it.
6 Q. Did you discuss with anyone else anywhere the
7 status of the second action brought by Burlington against
8 Ezralow?
9 A. I didn't discuss it, but everybody that was
10 involved with this project knew about it.
11 Q. Okay. And who were these people?
12 A. Mr. David Biggs.
13 Q. And who else?
14 A. That's all I really know who knew.
15 Q. Were you involved in a telephone conversation
16 whereby Mr. Biggs was stating on a speaker phone that the
17 City or the Redevelopment Agency would do whatever it takes
18 to help Ezralow get the center redeveloped?
19 MR. TEPPER: Objection. It assumes facts not in
20 evidence. It's misleading, and it is an attempt to mislead
21 this witness.
22 BY MR. TUCHMAN:
23 Q. You can answer the question.
24 A. No.
25 MR. TEPPER: No. Okay. He answered it anyway.
80
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BUKLINGTON V. HUNTINGTON CENTER
1 BY MR TUCHMAN:
2 Q. Did Mr. Biggs ever tell you that the Economic
3 Development Department and the Redevelopment Agency would
4 interfere in the lawsuit between Ezralow and Burlington?
5 A. Na
6 Q. Are you aware of anyone at the City, including
7 Mr. Biggs, who has told anyone from Ezralow that they will
8 assist Ezralow in the litigation with Burlington?
9 A. Not at all.
10 Q. Have you ever pulled the application to establish
11 the Specific Plan No. 13 submitted to Planning by Ezralow?
12 A. No.
13 Q. That's not a document that you're intimately
14 familiar with?
15 A. Correct
16 Q. That's more of a Planning issue?
17 A. Correct.
18 Q. Okay. What is a project meeting?
19 A. Whose project meeting are you talking about?
20 Q. Well, I'm looking at a document — actually, it's
21 not previously marked, but it's something called "Crossings
22 and Huntington Project Meeting."
23 A. If I can see what you're talking about, otherwise
24 I don't know what you're talking about
25 Q. III give it to you. Hang on.
1
2
3
4
5
6
7
8
9
10
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13
14
15
16
17
18
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25
81
A. Are you talking about Exhibit 13? Is that what
you're talking about?
Q. You can look at Exhibit 13. What does that mean?
A. Well, this is a meeting that was sponsored by the
Planning Department.
Q. Does the EDD ever sponsor project meetings?
A. We don't tall them project meetings. We have
meetings with different parties relating to projects, but
we don't — we're not as elaborate as the Planning
Department in preparing agendas and what has to be
discussed.
Q. Thank you.
MR. TUCHMAN: III ask the reporter to mark for
identification as Exhibit 21, this is an April 14th,
2000 —
THE WITNESS: Can I mak_ea telephone call?
MR TUCHMAN: Oh, no problem. Let's go off the
record a second.
(A brief recess was taken.)
BY MR. TUCHMAN:
Q. We were looking at Exhibit 21. Do you recognize
Exhibit 21? Did I hand you one?
A. No, you did not.
Q. Here's another one.
A. Oh, yes, you did, I'm sorry. Okay. What about
82
I it?
2 Q. Do you recognize Exhibit 21?
3 A. Yes, I do.
4 (Piaintiks Exhibit 21 was marked
5 for identification by the court
6 reporter and is attached hereto.)
7 BY MR. TUCHMAN:
8 Q. What is Exhibit 21?
9 A. It's a Statement of Interest regarding
10 redevelopment of Huntington Center submitted by Huntington
11 Center Associates, LLC.
12 Q. Okay. And this was your Statement of Interest
13 received from Ezralow; is that correct?
14 A. correct.
15 Q. You didn't return it to them?
16 A. Why would I return it to them?
17 Q. You didn't return it to them. This is what you
18 accept* correct?
19 A. Correll.
20 Q. Was it amended or changed in any way?
21 A. I believe there was addition later on that was
22 submitted, but I can't recall if it was through the Request-
23 for Proposal or a statement clarifying which of the escrow
24 companies, because they have several escrow companies'
25 names, but it's all in the Rk submitted to you.
83
1 Q. Okay. Wev get to it. Do you have Exhibit 11
2 in front of you?
3 A. Yes, I do..
4 Q. Let me see 11, please. Here you go.
5 MR. TUCHMAN: Ion going to ask the reporter to
6 mark for identification as Exhibit 22, this is a letter
7 dated April 24, 2000, to Gus Duran from the Ezralow
8 Company.
9 (Plaintiffs Exhibit 22 was marked
10 for identification by the court
11 reporter and is attached hereto.)
12 BY MR. TUCHMAN:
13 Q. And do you recognize 22?
14 A. Yes, I do.
15 Q. And what is 22?
16 A. It's copies of the leases of tenants remaining.
17 within Huntington Center.
18 Q. And were there 16 leases?
19 A. I don't know the number of leases. I have a box
20 fall of leases there.
21 Q. Was one of the leases Burlington Coat Factory?
22 A. I didn't check it I do have a copy of the
23 Burlington coat Factory lease because you submitted it.
24 Q. With the Statement of Interest?
25 A. You submitted it in several formats with the
84
21 (Pages 81 to 84)
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GUSTAVO A. DURAN, 07.26"00
BURLINGTON V. HUNTINGTON CENTER
1 lawsuit, with the Statement of Interest, so I do have a
1
Q. That was paid for by Ezralow?
2 copy of the Burlington coat Factory lease.
2
A. Correct.
3 Q. Now, do you know why the Economic Development
3
Q. And same thing with SP-13? Was any part of the
4 Department wanted the leases as of April 24, 2000?
4
SP-13 paid for with City funds?
5 MR. SHIPOW: Objection. Assumes facts not in
5
A. Not that I'm aware of.
6 evidence.
6
Q. That was also paid for by Ezralow?
7 THE WITNESS: No.
7
A. Not that I'm aware of, but they may have been
8 BY MR. TUCHMAN:
8
because that's in the Planning Department's purview, a
9 Q. Okay. Let's move on then. Were you addressing
9
demonstration of the Planning documents.
10 any of the SEQA issues and questions relative whether the
10
Q. Now, in addition — now, this proposal that you
11 Huntington Beach redevelopment at the Huntington Center was
11
received from Ezralow through Whitman, Breed, they attached
12 cleared through SEQA?
12
the SP-12. What else was attached to it?
13 A. No, that's not within our purview. That's the
13
A. There was a Pro Forma submitted. There were some
14 Planning Department's call.
14
documents related to Ezralow's financial capacity.
15 MR. TUCHMAN: I'm going to ask the reporter to
15
Q. Yes.
16 mark for identification as Exhibit 23, this is a letter
16
A. Those are the documents I recollect. Again, they
17 dated May 2, 2000, from Whitman, Breed, Abbott & Morgan.
17
were provided to you in a f1k.
18 (Plaintiffs Exhibit 23 was marked
18
Q. In a file here?
19 for identification by the court
19
A. Yes.
20 reporter and is attached hereto.)
20
Q. Okay. And that's the Ezralow file?
21 BY MR. TUCHMAN:
21
A. Well, yes, correct. Actually, there may be a
22 Q. And take a look at that.
22
file that says "Proposal" submitted to the Redevelopment
23 MR. TUCHMAN: It's going to be Whitman, Breed,
23
Agency, something to that effect.
24 Abbott & Shipow soon.
24
Q. Proposals?
25 MR. SHIPOW: I hope not, because the people on
25
A. Request for Proposals or —
85
I the letterhead are all dead.
1
2 BY MR. TUCHMAN:
2
3 Q. Do you recognize Exhibit 23?
3
4 A. Yes, this is the letter I indicated to you where
4
5 they were clarifying information. Huntington Center
5
6 Associates, LLC, was clarifying information submitted in
6
7 their proposal.
7
8 Q. Okay. And it looks like there's — I see. The
9
9 cover letter is where they're explaining the changes from
9
10 the proposal.
10
I 1 A. Just to clarify, not really change, but clarify.
11
12 Q. And then the proposal itself is about the --
12
13 starts on the fourth page in.
13
14 A. That was a proposal received on May 7th, yes,
14
15 correct -_
15
16 Q. Now, this proposal also had attached to it the
16
17 SP-12, is that right?
17
18 A.. Correct.
18
19 Q. And the SP-12 was about 80 pages or so?
19
20 A. Correct.
20
21 Q. In addition to the 80 pages, were there any -- by
21
22 the way, that SP-12 that was submitted, was any part of
22
23 that SP-12 paid for by any City Agency or the Redevelopment
23
24 Agency?
24
25 A. No.
25
86
87
Q. Interest for participation?
A. That's one part. There should be another pail
where proposals —
Q. Okay. Why don't you just take a look and tell me
which ones were included with the proposal, please.
A. Okay. Developer's selection. You have all the
documents that were submitted by the various developers
Q. Good. Let's take a look at that. Thank you. By
the way, inside the files, I did note that there were these
one -paged sheets that said, for example, "June 23, 2000,
copied."
A. That's a way for as to know the latest date in
which we copied documents because we seem to be getting
letters after letters after letters requesting added
documents, and we need to know where we stopped copying and
where the new documents come in.
Q. Thank you. The documents that were included in
Mr. Hughes' May 2, 2000, proposal, which you submitted on
behalf of Ezralow, the documents that are included are
referenced in the developer's selection file; is that
right?
A. They should be there, yes.
Q. Okay. Would you pull those documents out for
me? Thank you.
A. Here we go. Attachment No. 3 to the Request for
88
22 (Pages 85 to 88)
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1 Redevelopment Agency Actlon. Attachment No. 3 has all the
2 documents submitted by Ezralow as part of their proposal.
3 Q. Thank you. Attachment No. 5 here, that's the
4 Huntington Center Proposal Analysis Matrix?
5 A. Correct.
6 Q. Did you prepare that?
7 A. I prepared that.
8 Q. And basically that was comparing all three
9 proposals?
10 A. Correct. It's an analytical way of analyzing
11 what was submitted.
12 Q; And then attachment 4 is what Montgomery Ward
13 submitted?
14 A. Correct.
15 Q. Okay. So, basically — and I'm going to attach
16 this as part of Exhibit 23 — this Attachment 3 was the
17 entire Ezralow proposal, which includes the Statement of
18 Interest?
19 A. Correct.
20 Q. Okay. Good. Let me get a copy of this right
21 away. After receiving the Statement of Interest and then
22 the proposal, did you, at the Economic Development
23 Department, ask for any documents in addition to the — in
24 order to select the developer in addition to the documents
25 provided with the May 2 letter, which are attached as
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
89
Exhibit 23?
A. No, everything that you see there is what was
submitted by each of the proponents.
MR. TUCEIMAN: Okay. I'm going to ask the
reporter to mark for identification as Exhibit 24, it's a
letter from Tuchman & Associates, dated April 4, 2000.
(Plaintiffs Exhibit 24 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCBMAN:
Q. Have you ever seen Exhibit 24 before?
A. Yes, I have.
Q. Okay. And that was a request for documents from
Tuchman & Associates; correct?
A. Correct.
Q. And you received that on.or about April 4 or a
day or two thereafter?
A. Yes._
Q. Okay. And your response -- you wrote a response
for Mr. Biggs; is that correct?
A. Correct.
MR. TUCBMAN: I'm going to ask the reporter to
mark for identification as Exhibit 25, it's a letter dated
April 10, 2000, signed by David Biggs.
90
1 (Plaintiffs Exhibit 25 was marked
2 for identification by the court
3 reporter and is attached hereto.)
4 BY MR. TUCHMAN:
5 Q. But I believe this was prepared by you; is that
6 correct?
7 A. That's correct:
8 Q. Okay. Did you discuss Exhibits 24 and 25 with
9 Mr. Biggs?
10 A. Exhibits --
11 Q. The two letters.
12 A. No, I discussed them with Murray Kane.
13 Q. Okay. And what did Mr. Kane tell you?
14 MR. TEPPER: Objection. Attorney/client
15 privilege. No answer.
16 BY MR. TUCHMAN:
17 Q. Now, the documents that you -- did somebody tell
18 you to ask Tuchman & Associates to be more specific?
19 MR. TEPPER: Objection. If that person, if at
20 all, was Mr. Kane —
21 THE WITNESS: Yes, it was.
22 MR. TUCHMAN: I`m going to ask the reporter to
23 mark for identification as Exhibit 26, an April 4, 2000,
24 letter to Mr. Duran, from Mr. Tuchman & Associates, in
25 response to Exhibit 25.
91
1 (Plaintiffs Exhibit 26 was marked
2 for identification by the court
3 reporter and is attached hereto.)
4 BY MR. TUCHMAN:
5 Q. Have you ever seen this exhibit before?
6 A. Yes, I have.
7 Q. And were you charged with the responsibility to
8 respond to Exhibit 26?
9 A. Unfortunately.
10 Q. And did you prepare documents responsive to
11 Exhibit 26?
12 A. Yes, I did:
13 Q. Did you provide all the documents that were
14 requested?
15 A. I answered all the questions -- all the documents
16 related to each of the items you indicated.
17 Q. Did you check with the Planning Department to
18 make sure all documents from them were provided?
19 A. I checked with the Planning Department to obtain
20 what documents related to your particular items.
21 Q. Why is it that you did not provide the
22 application?
23 A. It was not made available to me.
24 Q. Okay. Do you know why it was not made available
25 to you?
0%
23 (Pages 89 to 92)
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1
A. No.
1
2
Q. Okay. Who didn't make it available to you?
2
3
A. I did not seek the application. I went to the
3
4
Planning Department and asked for all the documents related
4
5
to your question. and they were provided to you. There was
5
6
not an intent not to provide the application or anything of
6
7
that nature.
7
8
Q. When you say it was not made available, who from
8
9
the Planning Department did you go to?
9
10
A. Miss Jane James.
10
11
Q. Okay. And did you show her this letter?
11
12
A. I don't remember if I did.
12
13
Q. Okay. Did you —
13
14
A. Hang on a second, okay. Can you tell me what
14
15
item you're talking about within your letter?
15
16
MR. TEPPER: Thank you for asking that question.
16
17
BY MR. TUCHMAN:
17
18
Q. Mr. Duran, Ill ask the questions.
18
19
A. Well, I have a right to clarify your question.
19
20
Q. Mr. Duran, is there some reason that you did not
20
21
provide the Specific Plan No. 12 in response to
21
22
Exhibit No. 26?
22
23
A. What item in Exhibit No. 26?
23
24
Q. Well, would you agree or disagree that the
24
25
specific plan refers to Burlington Coat Factory?
25
93
1
A. It refers to — no, it doesn't refer to
1
2
Burlington Coat Factory. It refers to the Huntington
2
3
Center.
3
4
Q. Is there some reason you did not provide the
4
5
Specific Plan No. 12 in response to Exhibit 26?
5
6
1 MR. SHIPOW: Objection. Asked and answered.
6
7
Argumentative. Assumes facts not in evidence.
7
8
MR. TEPPER: It really does assume whether or not
8
9
that particular document, referring to 26, asks for the
9
10
specific plan.
10
11
BY MR. TUCHMAN:
11
12
Q. The question still remains, sir.
12
13
A. I don't know if I had the specific plan at my -
13
14
desk.
14
15
Q. Okay. Did you seek from the Planning Department
15
16
a copy of the specific plan?
16
17
MR. SHIPOW: Same objections.
17
18
MR. TEPPER: Again, it assumes the specific plan
18
19
is called out in Exhibit 26 as being a document request.
19
20
MR. TUCHMAN: That's fine. It doesn't matter.
20
21
MR. TEPPER, Yeah, it does matter.
21
22
MR. TUCHMAN: Well, certainly the categories do
22
23
cover it.
23
24-
MR. TEPPER: No, I would think that's a very
24
25
interesting question whether or not the categories do cover
25
94
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
it.
MR. TUCHMAN: Well, you can argue that later.
MR. TEPPER: No, you've asked a question to the
witness. I want the witness to answer it with reference to
the document.
MR. TUCH IAN: It's the second time you've
attempted to coach him, but I think it's been unsuccessful.
MR. TEPPER: Well, let's see if it is.
THE WITNESS: What is your question?
BY MR. TUCHMAN:
Q. Is there some reason you didn't get the Specific
Plan No. 12?
A. Probably because your items covered here related
to Burlington Coat It did -not say Huntington Center.
Q. Okay. Let's take a look at No. 10 and 11 and
12.
A. Okay.
Q. "All documents concerning any and all discussions
between and among the City and Ezralow regarding,
referring, or relating to Huntington Beach Mall."
A. You say "discussions." You did not say "plans."
Q. "All documents concerning any and all discussions
between and among the City and James Hughes regarding,
referring, or relating to the Huntington Beach Mall."
A. Same. You said "discussions."
95
Q. You interpret that to exclude the Specific Plan
No. 12?
A. That's righL It doesn't say "plans." I know
how to read English, so —
MR. TEPPER: Relax. You can't argue with him and
he can't argue with you.
THE WITNESS: Okay.
BY MR. TUCHMAN:
Q. Now, did you — in addition to not providing
Specific Plan No. 12 and not providing the application, did
you have a discussion regarding other documents which were
not provided responsive to this letter?
MR. TEPPER: Objection. Mischaracterizes what
was asked for.as to generating a duty to provide.
MR. SHIPOW: Also argumentative and assumes facts
not in evidence.
MR. TUCHMAN: He can answer the question.
MR. TEPPER: Yes, he can answer the question.
THE WITNESS: I don't have an answer to your
question because I don't understand the nature of your
question.
BY MR. TUCHMAN:
Q. Did anybody tell you, Mr. Duran, not to produce
certain documents?
A. Not at all.
Em
24 (Pages 93 to 96)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1
Q. Okay. Who made the determination as to what
1
2
documents to provide responsive to Exhibit 26?
2
3
A. I did
3
4
Q. Okay. At some point, the specific plan was
4
5
requested from you; is that correct?
5
6
A. That's correct.
6
7
Q. And when was that?
7
8
A. I believe one of your associates came into
8
9
request a copy of — not the specific plan — of the
9
10
proposal submitted by Ezralow. You have to remember, we
10
11
don't process the specific plan. It's the Planning
11
12
Department.
12
13
Q. I understand that.
13
14
A. Okay.
14
15
Q. And did you provide him with the specific plan?
15
16
MR. TEPPER: Objection. You re misleading the
16
17
witness. The witness wasn't asked that question. If
17
18
you're asking him it now, put it in context.
18
19
Do you understand the question?
19
20
THE WITNESS: No.
20
21
BY MR. TUCHMAN:
21
22
Q. Did you provide that associate something?
22
23
A. I provided him the proposal submitted by Ezralow.
23
24
Q. And that included the specific'plan?
24
25
A. The title was Specific Plan for the
25
97
1 Redevelopment — the Development of the Handogtoo Beach I 1
2 Center.
2
3 Q. Okay.
3
4 A. You have to remember, we don't process specific
4
5 plans.
5
6 Q. I understand that. You process R for Ps,
6
7 Statement of Interests, and proposals?
7
8 A. Correct.
8
9 Q. Did you at any time provide any enclosures to the
9
10 May 2 proposals to Tuchman & Associates?
10
11 A. The question again?
11
12 MR. TUCHMAN: Please read the question back.
12
13 (Whereupon the previous question was read
13
14 back by the court reporter as requested.)
14
15 MR. TEPPER: I think you may have misheard the
15
16 question as asked.. _-
16
17 THE WITNESS: Did you understand the question?
17
18 THE WITNESS: Not really.
18
19 BY MR. TUCHMAN:
19
20 Q. You understand Exhibit 23 was a proposal which
20
21 was submitted by Mr. Hughes and Ezralow?
21
22 A. Okay.
22
23 Q. There were attachments that were with it?
23
24 A. Correct.
24
25 Q. Did you ever provide the attachments to
25
98
Exhibit 23 to Tuchman tit Associates as representing
Burlington Coat Factory?
A. I provided you the documents — you were provided
documents when they were made available to the
Redevelopment Agency Board, which was a Friday prior to the
public bearing on the recommendation from the Economic
Development Department to the Board to select an owner
participant.
Q. When was that? Was that the Friday before
June 19; meaning, June l6th?
A. Correct.
Q. Okay. Were they not made available to the
Economic Development Department prior to June 16, 2000?
A. Sometime prior to that, yes, they were.
Q. How long prior to June- 16th?
A. Let's take a look at the date. They were sent on
May 2» d, so May 2nd or thereabouts.
Q. Why is it that in response to Exhibit 26 you did
not provide the attachments contained in Exhibit 23?
MR. SHIPOW: Look at the dates, Counsel.
THE WITNESS: I received this on April 12th.
BY MR. TUCHMAN:
Q. Sure.
A. So I was responding to your letter of April 12th.
Q. When did you respond to the letter of April 12th?
99
A. I think it's about May loth.
Q. Right. May loth:
A. But your request was for documents prior to your
April 12th date, not after that particular date.
Q. So you interpreted Exhibit 26 in terms of
providing documents after April 12th?
A. That's correct.
Q. Did anybody tell you that or you made that
decision on your own?
A. I made that decision on my own.
Q. Did you discuss that with anybody?
A. No.
Q. Let's take a look --
MR. TUCHMAN: III ask the reporter to mark for
identification as Exhibit 27, it's a letter dated
April 17th, 2000. It's from Mr. Duran to Tuchman &
Associates.
(Plaintiffs Exhibit 27 was marked
for identification by the court
reporter and is attached hereto.)
BY MR. TUCHMAN:
Q. Do you recognize Exhibit 27?
A. Let me read it first.
Q. Did you have a chance to read 27?
A. Yes, I did. -
100
25 (Pages 97 to 100)
JILIO Si ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1 Q. Okay. And you prepared 27 on or about
2 April 17th, 2000?
3 A. Correct
4 Q. Okay. Ultimately, you only provided about 10 or
5 14 pages of documents; am I correct?
6 MR. TEPPER: That's a misstatement of fact.
7 MR. SHIPOW: And argumentative.
8 THE WITNESS: I provided you with the exact
9 response to each of the items that you requested under the
10 April 12th, 2000, letter.
11 BY MR. TUCHMAN:
12 Q. How many pages of documents did you --
13 A. I don't remember, but have you copies of those
14 documents.
15 Q. Well get them.
16 MR. TEPPER: It looks like more than 14 pages.
17 Why would you say that in this deposition? If you want to
18 argue with the witness, let's argue on substance.
19 MR. TUCHMAN: Mr. Tepper, do you want to count
20 the pages right here? Here's what was provided.
21 MR. TEPPER: Let's go to the questions.
22 MR. TUCHMAN: That's what I thought you'd say.
23 MR. TUCHMAN: Okay. Back to the questions.
24 BY MR. TUCHMAN:
25 Q. Why did you need till May 15th to respond?
101
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1 A. Correct
2 Q. Why did you CC the letter to Murray Kane?
3 A. He's oar special legal counsel and we may have to
4 make him aware of any correspondence that may have legal
5 implications.
6 Q. Did you -- you consulted with Mr. Kane relative
7 to providing documents responsive to the letter dated
8 April 121h; is that correct?
9 A. Correct.
10 Q. Okay. Were documents withheld?
11 A. No, they were not
12 Q. There were no documents withheld?
13 A. The only file that was not provided was the
14 .closed session Me where we have documents regarding our
15 closed sessions.
16 Q. Did you say that anywhere in writing, whether in
17 Exhibit 2 or elsewhere?
18 A. No, because we responded to your particular
19 request for documents. Each item response — specifically
20 responds to your question to the records you're requesting.
21 Q. Okay. And after you did your search and
22 determination as to what you were going to provide, did you
23 determine how many pages of documents you were going to
24 provide?
25 A. No, we pulled the documents together and gave you
103
1 A. Because I have many other activities and duties
1
copies of those documents.
2 and responsibilities other than answering letters from
2
MR. TUCI- N AN: Okay. I'm going to ask the
3 attorneys requesting documents as No.1. No. 2, we had to
3
reporter to mark for identification as 29 the letter dated
4 organize our tiles in such a way that they could be
4
May 12th, 2000, to Gus Duran.
5 property copied.
5
(Plaintiffs Exhibit 29 was marked
6 Q. Okay.
6
for identification by the court
7 A. And also you should know that there are laws
7
reporter and is attached hereto.)
8 covering copies of documents that cities must follow, and
8
BY MR. TUCHMAN:
9 it gives us certain time limits in which to provide you
9
Q. Do you recognize Exhibit 29?
10 with copies.
10
A. Let me read it first. Okay. What about it?
11 Q. Okay. And you were within those time limits?
11
Q. You received 29 on or about May 15, 2000?
12 A. Exactly.
12
A. Uh-huh.
13 Q. Okay. Let's take a look at —
13
Q. Is that a "yes"?
14 MR. TUCHMAN: I11 ask the reporter to mark for
14
A. Yes.
15 identification as Exhibit 28, this is a -letter dated
15
Q. Okay. Do you see the sentence -- the last two
16 May 10th, 2000, from Gus Duran to Tuchman & Associates.
16
sentences of the first paragraph, "Your responsive letter
17 It's CCed to David Biggs, Murray Kane, and Scott Field.
17
identifies documents that are of public record. If there
18 (Plaintiffs Exhibit 28 was marked
18
are documents that are not of public record responsive to
19 for identification by the court
19
our request, please advise us."
20 reporter and is attached hereto.)
20
Did you ever respond to those sentences in
21 BY MR. TUCHMAN:
21
Exhibit 29?
22 Q. And the question is: Do you recognize 28?
22
MR. TEPPER: "Yes" or "no"?
23 A. Uh-huh, yes, I do.
23
THE WITNESS: No.
24 Q. Okay. And you wrote Exhibit 28 on or about
24
BY MR. TUCHMAN:
25 May 10th, 2000?
25
Q. Okay. Why didn't you respond to them?
102 1 104
26 (Pages 101 to 104)
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
1 A. Became your letter specifically asked about
1
2 documents relating to Burlington Coat Factory. There are
2
3 no documents related to Burlington Coat Factory.
3
4 Q. Okay. So the letter that was written to you
4
5 dated April 12 asked for only documents relating to
5
6 Burlington Coat Factory?
6
7 A. If you took at your request for documents, it
7
8 talks about Burlington Coat Factory continuously, each and
8
9 every item, and there were no documents in our files that
9
10 indicate Burlington Coat Factory.
10
11 Q. Okay.
11
12 A. So I tried to answer your request for documents
12
13 in the same -- with the same specificity that you
13
14 requested.
14
15 Q. Did anybody tell you that the letter of April 12
15
16 related only to Burlington Coat Factory, or is that a
16
17 decision you made on your own?
17
18 A. That's what it says on your letter here.
18
19 Q. That's not my question. Did anybody tell you
19
20 that the letter was restrictive only to Burlington Coat
20
21 Factory, or did you make that determination on your own?
21
22 A. I answered aB the requests for documents.
22
23 MR. TUCHMAN: Read the question back to
23
24 Mr. Duran.
24
25 (Whereupon the previous question was read
25
105
1
back by the court reporter as requested.)
1
2
THE WITNESS: I made the determination on my own.
2
3
BY MR. TUCHMAN:
3
4
Q. Okay. Besides speaking to Mr. Kane about the
4
5
documents that you were providing, did you speak to
5
6
Mr. Biggs?
6
7
MR. TEPPER: Objection. That misstates and
7
8
mischaracterizes his testimony.
8
9
BY MR. TUCHMAN:
9
10
Q. You can answer the question.
10
11
A. No.
11
12
Q. You only spoke with Mr. Kane regarding the
12
13
documents?
13
14
A. Correct.
14
15
MR. TUCHMAN: Okay. Now, I'm going to ask
15
16
reporter to mark for identification as -Exhibit 30, this is
16
17
a letter dated May 16, 2000. Mr. Tepper, you may want to
17
18
look at it.
18
19
(Plaintiff's Exhibit 30 was marked
19
20
for identification by the court
20
21
reporter and is attached hereto.)
21
22
BY MR. TUCHMAN:
22
23
Q. And is this a letter that you sent to Tuchman &
23
24
Associates on May 16, 2000?
24
25
A. Yes, it is.
25
106
Q. Okay. And by the way, this little 16 at the top,
that came from your file right here, your box; correct?
A. Yes
Q. Okay. And Exhibit 30 is the sum and total of the
documents you provided to Tuchman & Associates on May 16,
2000; is that correct?
A. Correct.
MR. TEPPER: For the record, there were documents
that were made available that you didn't ask for, and they
exceeded 14 pages. You asked for 14 pages. .
MR. TUCHMAN: Okay. Mr. Tepper. That was very
(Lice.
MR. TEPPER: Just so we got the record clear.
MR TUCHMAN: You can make whatever arguments you
want, but not in deposition.
MR. TEPPER: I can make any arguments in a
deposition I want too.
MR. TUCHMAN: Oh, is that right?
MR. TEPPER. Yes, it is right.
BY MR. TUCHMAN:
Q. Now, Mr. Duran —
MR. TUCHMAN: That's a new interpretation of the
Discovery Act
BY MR. TUCHMAN:
Q. Do you see that you provided the May 2, 200%
107
letter in there from Whitman & Breed? By the way, does
this refresh your recollection that only 14 pages were
provided?
A. What you have is what was provided. I don't
dispute what we provided you
Q. Do you see this May 2 letter from Whitman, Breed?
A. Correct.'
Q. Why is it that you didnt send the enclosures to
it?
MR. SHIPOW: Objection. Argumentative. It
mischaracterizes the testimony. It mischaracterizes the
documents. Your letter of May 12th, which is Exhibit 29,
says specifically, "In total, we request 14 pages." That's
on page 2 of the letter. And to insinuate that this letter
withheld documents is entirely inappropriate.
BY MR. TUCHMAN:
Q. You can answer the question:
A. I responded to each of your letters in the same
light as the questions were posed by your letters. In
other words, if you asked we for a particular document, I
gave you a particular document. Also, your associate came
in personally and asked for the specific plan, and I gave
it to him directly.
Q. Okay. Now, let me ask you this question. This
letter is dated May 2, 2000, which is after Tuchman &
108
27 (Pages 105 to 108)
7ILIO Sr ASSOCIATES CERTIFIED COURT REPORTERS
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1
Associate's original letter of April 12th?
1
2
A. Correll.
2
3
Q. Why did you provide it if it was after that date?
3
4
A. I gave you everything I could possibly provide
4
5
you. I don't know what you're asking.
5
6
Q. Okay. Is there some reason that you provided the
6
7
May 2, 2000, letter because it's dated after April 12,
7
8
2000? l thought you told me that you didn't provide
8
9
anything after that date.
9
10
A. Because you requested copies of any proposals
10
11
submitted by Eiralow, and I gave you that.
11
12
Q. And is there some reason you didn't send
12
13
enclosures along with the — on your May 10 letter?
13
14
MR. SHIPOW: Same objection. Argumentative.
14
15
Your letter specifically requests 14 pages, period.
15
16
MR. TUCHMAN: That's very nice, Mr. Shipow?
16
17
THE WITNESS: Because your associate came into
17
18
our office. I forget the name of your associate, the tall
18
19
fellow.
19
20
BY MR. TUCHMAN:
20
21
Q. Okay.
21
22
A. And requested copies of that. He demanded to
22
23
have copies of that. He would not leave our offices. So
23
24
instead of arguing with him, I gave it to him.
24
25
Q. Now, you gave him the Specific Plan No. 12?
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109 1
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A. The proposal submitted, that's correct.
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Q. But weren't there other enclosures that were
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attached to Mr. Hughes' May 2, 2000, letter?
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A. the only reason I gave him that is because I
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already had a copy. I did not have a time to make a copy.
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I was on my way to another meeting. He requested a copy of
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the proposal. I gave him the copy of what I already had.
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I did not go into my files and copy everything that was in
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the file.
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Q. When you spent the time between April 12th, 2000,
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and May loth, 2000, why is it that you didn't organize the
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enclosures during that period of time?
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MR. SHIPOW: Objection. Argumentative.
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Mischaracterizes the testimony, and you're badgering the
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witness. You're letters specifically asked for 14 pages of
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documents. You got those 14 pages of documents, and to
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insinuate otherwise, again, is entirely inappropriate.
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MR. TUCHMAN: That's about as fictional as your
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arguments on March 31st.
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MR. TEPPER: All right. Do you have an answer to
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the question?
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THE WITNESS: What is the question?
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MR. TUCHMAN: Read the question back.
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(Whereupon the previous question was read
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back by the court reporter as requested.)
25
110
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
THE WITNESS: Organize the enclosures?
BY MR. TUCHMAN:
Q. Organize and provide them, yes.
A. I provided to you whatever you requested.
MR. TEPPER: That's all you have to say.
BY MR. TUCHMAN:
Q. So it's your interpretation of my letter --
Tuchman & Associate's letter of April 12th that we didn't
want the enclosures to the May 2, 2000, Hughes letter?
MR. SHIPOW: Objection. Mischaracterizes the
testimony, and it's misleading because you have a
subsequent letter.
BY MR. TUCHMAN:
Q. You can answer the question.
MR. TEPPER: Read the question.
THE WITNESS: I gave you everything we
requested.. I did not keep anything from you that you
requested.
MR. TUCHMAN: Read the question.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: I answered every question you had
on April 12. My response was to your letter. of_April 12th,
period
BY MR. TUCHMAN:
111
Q. Did anyone review your selection of documents to
be provided?
A. No.
Q. Okay. I want to make sure that our Exhibit 23s
are complete. Please hand me your 23. Of course, the
original Exhibit 23 didn't have this attactlment 3 cover
sheet to it. That was when it was incorporated in your
packet on June 16th, 2000; correct?
A. Correct
MR. TUCHMAN: Okay. Do you want me to fix your
exhibit?
MR. SHIPOW: Just give me a copy. Thanks.
BY MR. TUCH 4AN:
Q. Did you have a conversation with Mr. Biggs
regarding the —
MR. TEPPER: Do I get one?
MR. TUCHMAN: Yeah. Take this one.
MR. TEPPER: Thank you.
BY MR. TUCHMAN:
Q. Did you have a conversation with Mr. Biggs that
you should not provide Tuchman & Associates the documents
that were requested?
MR. TEPPER: Asked and answered.
THE WIINESS: What's the question again?
BY MR. TUCHMAN:
112
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Q. Did you have a conversation with Mr. Biggs
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wherein Mr. Biggs told you to not provide all the
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documents?
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A. Na
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Q. Did you have a conversation with Mr. Biggs where
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that was sent to you?
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A. No.
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MR. TUCHMAN: Okay. I'm going to ask the
9
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reporter to mark for identification as Exhibit No. -- are
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we on 31?
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MR. TEPPER: Yes.
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(Plaintiffs Exhibit 31 was marked
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reporter and is attached hereto.)
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MR. TUCHMAN: This was Item 25 of your
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production, and it's a May 26, 2000, memo. "Subject,
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Crossings."
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MR. SHIPOW: I need to go back for a moment to
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Exhibit 23. It contains what I believe to be some — at
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least on my initial review, some confident and proprietary
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financial information relating to Ezralow and/or the
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project that was submitted on a confidential basis to the
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City, and I believe it should not have been produced.
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Perhaps, it was produced by mistake. I had nothing to do
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with this production, but I would object to any use of that
document.
BY MR. TUCHMAN:
Q. Take a look at Exhibit 31. Do you recognize
Exhibit 31?
A. I recognize it.
Q. Okay. Did you receive a copy of it on or about
May 26, 2000?
A. Probably a day or two after.
Q. And do you know why you were CCed on this?
A. Because I am one of the persons involved in the
redevelopment of the Huntington Center.
Q. Did you, as one of the persons involved in the
development of the Huntington Center and as its Housing and
Redevelopment Manager, make any comments on the draft
specific plans that were submitted by Eiralow?
A. Yes, we did.
Q.. When you say we — I'm sorry. When was that?
A. When was that? It's In your documents. I don't
remember the particular dates, whether we did it on the
first draft or the second draft, so there was a response
from the Economic Development Department to Jane James to
comment on the —
Q. Is this what you're talking about, Exhibit 12,
the last page of it?
114
A. Yes, correct.
Q. So any other comments from the Economic
Development Department at all relative to any specific
plans that were submitted by Ezralow?
A. No, this was the only feedback the Economic
Development Department provided the Planning Department on
the specific plan.
Q. Did the Economic Development Department ever make
any comments verbally about the draft specific plans that
were submitted that pertained to Burlington Coat Factory's
inclusion or exclusion?
A. No.
Q. When you received this memo, which is Exhibit 31,
did you respond to it in writing?
A. No, we did not respond.
Q. Okay. Why is that?
A. Because we felt the draft specific plan was
properly presented and we had given our feedback to the
first draft, so them was no need for us to provide
additional feedback.
Q. Okay. Did Ray Silver or Melanie Fallon ever ask
you, as the Housing and Redevelopment Manager and as the
person involved in the redevelopment of the Huntington
Center shopping mall, to provide or obtain some type of
opinion relative to the status of the Burlington Coat
115
1 Factory?
2 } A. No.
3 Q. I want to have you take a look at --
4 MR. TUCHMAN: III ask the reporter to mark for
5 identification as Exhibit -- strike that.
6 BY MR. TUCHMAN:
7 Q. What is the Design Review Board?
8 A. The Design Review Board is a board appointed, I
9 think, by the Planning Department to review the design
10 features of a particular project. They work with the
11 Planning Department. It's a board that works with the
12 Planning Department.
13 Q. Does the Design Review Board have anything to do
14 with the Economic Development Department in terms of the
15 exchange of information in the development of a project?
16 A. Not at all.
17 MR. TUCHMAN: Okay. I'm going to ask reporter to
18 mark for identification as Exhibit 32, this is a letter
19 dated June 2, 2000, to Huntington Center Associates, CC to
20 James Hughes."
21 (Plaintiffs Exhibit 32 was marked
22 for identification by the court
23 reporter and is attached hereto.)
24 BY MR. TUCHMAN:
25 Q. Do you recognize Exhibit 3 2?
116
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Take your time.
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Yes, I do.
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Okay. Did you prepare Exhibit 32?
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Yes, I did.
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And you can tell because of the little code at
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the bottom; correct?
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Correct.
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What does that G mean?
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G?
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Yeah.
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That's the drive in the computer server, the
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And then "slash means Gus," meaning you?
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A.
Correct.
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Q.
What's "HB Mall" mean?
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A.
That's a,folder in the computer.
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Q.
And that pertains to the --
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A.
Huntington Beach MaIL
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Q.
Okay. And then this next slash says L-e-t-o-n?
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A.
Uh-huh.
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Q.
Is that a "yes"?
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A.
Yes, correct.
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Q.
What does that mean?
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A.
just a name given to the document.
25
117
1
Q. letter --does it mean "letter on property
1
2
document"?
2
3
A. Correct, and proposal. Letter and proposal
3
4
document.
4
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Q. What was the purpose of sending this letter?
5
6
A. To give you information that this was going to be
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7
heard by the City Council. Since you had claimed that you
7
8
were not informed of previous meetings, we wanted to make
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sure you were fully aware of all meetings held in this
9
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particular project
10
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Q. Okay. This letter is addressed to Huntington
11
12
Center Associates, Mr. Duran
12
13
A. I'm sorry. But your company was also given the
13
14
letter.
14
15
Q. Okay. So there was a letter that also went to
15
16
Tuchman & Associates that was similar to Exhibit 32?
16
17
A. Correct
17
18
Q: Who else received a letter similar to Exhibit 32?
18
19
A. Montgomery Ward's, their attorneys, Burlington
19
20
and their attorneys, and Ezralow and their attorneys.
20
21
Q. Okay. And had you determined who the
21
22
redevelopment -- whose proposal would be acceptable as of
22
23
June 2,2000?
23
24_
A. No, we were in amidst of analyzing the proposals,
24
25
but we had to make sure that— I think we have about two
25
118
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
or three weeks where we had to submit our documents to the
City Administrator, and eventually those documents go to
the City Clerk, and that's why we had to alert you as to
just when it was scheduled to be.
Q. Okay. And does the Economic Development
Department have the power to select a developer?
A. No, we don't.
Q. Who has that power?
A. The Board — the Redevelopment Agency board.
Q. And the Economic Development Department does have
the power to make recommendations?
A. We don't have the power. We have the
responsibility to make recommendations to the Redevelopment
Agency or to the City Council on matters entrusted to us.
Q. Okay. Thank you. Did you receive any complaints
from an attorney named Wallach?
A. No.
Q. Did you receive any complaints from any other
tenants at Huntington Center Mail?
A. I received some telephone calls from some of the
tenants indicating they're unhappiness with their lease
termination.
Q. And how did you handle that?
A. I indicated to them that that's something between
their landlord and themselves
119
Q. Do you remember how many calls you fielded?
A. About two or three.
Q. Do you remember the names of the tenants?
A. I don't remember the names I remember one
fellow was a jeweler, I believe. The other one was
somebody that sells seashells.
Q. Did the Economic Development Department, in
response to these complaint phone calls, offer any
assistance?
A. We offered to help them find locations somewhere
else if they wanted to make themselves available of those
services
Q. Did they ask for that help?
A. Some of them did, yes
Q. And was that help provided?
A. They never really moved on that particular help.
Yes, we did — some of them — I think the jeweler. We
sent plans of shopping centers in other areas where there
were vacancies, and we gave them the names of the brokers
marketing those particular shopping centers.
Q. Did you offer any assistance to Burlington Coat
Factory relative to their situation with the landlord?
MR. SHIPOW: Objection. Assumes facts not in
evidence.
THE WITNESS: Not at all.
120-1
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BY MR. TUCHMAN:
Q. What role do you see the Economic Development
Department having relative to the relationship between
Ezralow and Burlington?
A. I don't know.
Q. Did you have — do you communicate by e-mail with
anybody at the City?
A. Yes.
Q. And who do you communicate with by e-mail?
A. David Biggs, my employees, other City staff.
Q. When you received.the Subpoena and'you prepared
the documents, did you search your e-mails?
A. Yes, I did.
Q. And did you provide copies of all e-mails?
A. None of the a -mails relate to the particular
topic.
Q. Did you ask Mr. Biggs to search his e-mail files?
A. I did not, since he was subpoenaed himselL
Q. Okay. You know what the ICSC convention is;
right?
A. Yes, I am.
Q. You didn't attend it this year?
A. I did not
Q. Mr. Lamb attended it?
A. Yes, correct.
121
1 Q. Did you speak to him about the convention?
2 A. No, other than he had a good time.
3 Q. Did he have a good time?
4 A. He worked very hard. He had to stand on his feet
5 for 14 hours or something like that
6 Q. Do you know as part of the business development
7 attraction in your department, but that's not really your
8 area; correct?
9 A. Correct
10 Q. Did Mr. Lamb — who else attended from the City?
11 A. David Biggs, Jim Lamb, Linda Saracci. I believe
12 Howard Zelefsky, but I'm not sure.
13 Q. Did you discuss with anybody in your department
14 as to whether Burlington was discussed at the convention?
15 A. No.
16 Q. Did you discuss — did you have— were you aware
17 the Economic Development Department had a booth promoting
18 The Crossings?.
19 A. Yea, I ate.-
20. Q. Were you involved in the preparation of any of
21 the materials?
22 A. No, I was not
23 Q. Okay. Were you aware that a videotape was
24 presented to the public?
25. A. Yes, I am.
122
I Q. Have you seen that videotape?
2 A. I have seen it..
3 Q. Does it refer to Burlington in any way?
4 A. No, It does not
5 Q. Was the videotape submitted to you for
6 informational purposes by Ezralow or did you request it?
7 A. It was submitted to as to show us what they were
8 doing to market the Huntington Beach Center.
9 Q. As far as you know, have there been new tenant
10 contacts through the Economic Development Department for
11 the shopping center?
12 A. Through, no.
13 Q. Is it part — and I know this isn't exactly your
14 department, but is it the Economic Development Department's
15 responsibility to try and develop tenants for the shopping
16 center?
17 A. For all the shopping centers in Huntington Beach,
18 yes. That Is part of our role.
19 Q. What has the Economic Development Department done
20 to develop tenants for The Crossings?
21 A. I have not been involved in that facet.
22 MR. TUCHMAN: Let's take a five-minute break. I
23 think we're just about done.
24 THE WITNESS: Okay.
25 (A brief recess was taken.)
123
1 MR. TUCHMAN: Let's go back on the record.
2, BY MR. TUCHMAN:
3 Q. What is the next step? Are there any future
4 contemplated activities other than entering into the OPA
5 relative to the Huntington Center?
6 A. No, that's the only thing. Once you enter into
7 the OPA, then whatever the OPA calls for, it's our job and
8 Ezralow's job to implement that, whatever is in the OPA.
9 Q. Have you discussed the possibility of having an
10 OPA Entered into with Montgomery Ward's?
11 A. Not at this point in time.
12 Q. Have you ever had any conversations with anyone
13 directly from Burlington?
14 A. No.
15 Q. Have you provided the lease that was provided to
16 you from Burlington to anyone?
17. A. No.
18 Q. Have you made the determination —
19 A. Wait Walt Yes, to our legal counsel.
20 Q. Okay. Have you discussed this matter — did you
21 discuss your deposition with anyone at the City?
22 A. Other than the fact that I was coming here.
23 Q. Who did you discuss that with?
24 A. My assistant who knew I had to be out of the
25 office, Linda Suracci, who is the department's
124
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Administrative Assistant, so they would'know I would be out
of the ollfce, especially since we were going to have a
birthday party, lancheou birthday party today.
Q. Is it your birthday?
A. No.
MR. TUCHMAN: Okay. All right. I don't have any
further questions of this witness.
MR. SHIPOW: I don't have any questions.
MR. TUCHMAN: I propose that the reporter be
relieved -- Mr. Tepper?
MR. TEPPER: Yes, go ahead.
MR. TUCHMAN. I propose that the reporter be
relieved of her duties under the. Code with respect to
maintaining the original and obtaining signature; that the
transcript be forwarded to Mr. Tepper at Mr. Kane's office
with a cover letter CCed to myself and Mr. Shipow; that Mr.
Duran will have 30 days upon Mr. Tepper's receipt of the
transcript to sign it under penalty of perjury and make
corrections; that it will be Mr. Tepper's responsibility to
notify me and Mr. Shipow in writing of the changes to the
transcript and signature; that it will be Mr. Tepper's
responsibility to provide me with the original transcript
of this matter, and I'll make it available upon reasonable
request of any proceeding in this matter. In the event the
transcript is not signed and corrected after a 30-day
125
period, an unsigned, certified copy will be usable for all
appropriate purposes in lieu of the original.
Is that acceptable, Mr. Duran?
MR. SHIPOW: And if for some reason the original
is not available, a copy can be used.
MR. TUCHMAN: Is that acceptable?
MR. SHIPOW: Yes.
MR. TUCHMAN: Mr. Duran?
THE WITNESS: Yes.
MR. TEPPER: I have a question. Are the exhibits
going to be appended to the deposition transcript?
(Discussion held off record.)
MR. TEPPER: Yes, I do want them appended.
Subject to that, yes, we stipulate. I want a big thick
deposition.
MR. SHIPOW: For each person?
MR. TEPPER. Absolutely.
(Whereupon the deposition concluded at 12:36 p.m.)
126
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
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77:14 93:4 94:6
95:3 96:14 97:17
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107:10108:20,22
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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Page 127
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
39:13 44:14
bottom 58:7 64:15
64:17 117:7
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
cleared 85:12
Clerk 119:3
client 46:23
closed 10:16,18
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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Page 129
deal 48:14 49:5
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6:15 9:14 19:25
21:7 32:25 41:12
50:8 64:18 68:24
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
69:7 70:1,5 84:7
91:24 93:18,20
96:23 100:16
102:16 104:4
105:24 107:21
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EXAMINATION
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3ILI0.& ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
72:13,24 73:2,4
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 131
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
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Page 132
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124:1
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00.
BURLINGTON V. HUNTINGTON CENTER
level 25:20=
Liability 1:9,10,11--
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
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3ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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GUSTAVO A. DURAN, 07.26.001-
gU NGTON V. HUNTINGTON CENTER.
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
79:11,16,20 87:3
94:17 95:25
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109:14
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31LIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00-`
BURLINGTON V. HUNTINGTON CENTER
spell 6:1316:21
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 137
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GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
111:1,16,22 112:24
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125:7 126:9
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
GUSTAVO A. DURAN, 07.26.00
BURLINGTON V. HUNTINGTON CENTER
Page 139
3-8 31:23 32:13
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30th 2:25 3:4
30-day 125:25
30-year 47:6 48:12
48:15 63:6 74:25
314:21 113:11,13
114:4,5 115:13
31st 110:19
32 4:22 116:18,21
117:4 118:16,18
3435 2:24 3:4
374-152":23
375-5087 6:25
385.8000 3:5
4 4:14,16 89:12 90:6
90:16 91:23
-
5 57:12,18,23 89:3
5th 11:2,4
515 3:10
55 5:8
6 4:3 52:25 53:5
76:22
6th 73:1174:1
617-0480 3:11
633 3:15
7 57:4,5,6,10,20,22
58:2,24 59:2,9
7th 86:14
714 6:23,25
815:8,13
80 86:19,21
83 4:11
84 4:12'
_
85 4:13 -
8914:25=
896-25123:16.-
9 4:10 60:9,10,14,16
60:17,21,25 64:25
65:3
9:36 2:23 6:1
90 4:14
90010 3:5
900713:11,16
914:15 5:9
92 4:16
92648 6:20
3ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLIh� tON V. HUNTINGTON CENTER
1
2
3 SUPERIOR COURT OF THE STATE OF CALIFORNIA
4 FOR THE COUNTY OF ORANGE
5
6 BURLINGTON COAT FACTORY WAREHOUSE)
OF HUNTINGTON BEACH, INC., a )
7 California Corporation )
8 Plaintiff, ) CASE NO:
OOCCO6309
9 vs. )
10 HUNTINGTON CENTER ASSOCIATES, a ) VOLUME I
Delaware Limited Liability )
11 Company; EZRALOW RETAIL )
PROPERTIES, a Delaware Limited )
12 Liability Company; THE EZRALOW )
COMPANY, a Delaware Limited )
13 Liability Company; and DOES 1 )
through 10, inclusive, )
14 )
Defendants. )
15 )
16
17
18 DEPOSITION OF:
19 FRANK CODA
20 THURSDAY, JULY 27, 2000, 9:57 A.M.
21
22
23
24
25
1
1 APPEARANCES OF COUNSEL-
2 FOR THE PLAINTIFF:
3 LAW OFFICES OF
TUCHMAN & ASSOCIATES
4 BY: LOREN CORN
Attorney at Law
5 3435 Wilshire Boulevard, 30th Floor
Los Angeles, California 90010
6 (213)385-8000.
7
FOR THE DEFENDANTS:
8
LAW OFFICES OF
9 WHITMAN, BREED, ABBOTT& MORGAN, LLP
BY: ALAN J. WATSON
10 Attorney at Law
633 West Fifth Street, 21st Floor
11 Los Angeles, California 90071-2040
(213) 896-2512
12
13
14
15
17
18
19 PVG
20
21
22
23
24
25
I
1
INDEX
2 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2
3
Examination by: Page
Mr. Cope 5
3 FOR THE COUNTY OF ORANGE
4
4
5
5 BURLINGTON COAT FACTORY WAREHOUSE)
6
EXHIBITS
OF HUNTINGTON BEACH, INC., a )
7
8
Plaintiffs Exhibit For Identification
33 - 9-page Notice of Taking Deposition
10
6 California Corporation,
34 - 1-page In Transmittal dtd 7/27/99
19
9
34-8 - 1-page Fax Transmittal dtd 7/27/99
20
7 Plaintiff, ) CASE NO:
35 - 1-page Fax Transmittal did 7/27/99
21
OOCCO6309
10
36 - 1-page Letter of Transmittal dtd 8/13/99
21
8 vs.
37 - 1-page Letter of Transmittal dtd 8/20/99
23
11
38. 1-page Letter of Transmittal dtd 825/99
29
39 - 1-page Letter of Transmittal dtd 92Z99
35
9 HUNTINGTON CENTER ASSOCIATES, a ) VOLUME 1
12
40 - I -page Letter of Transmittal dtd 9/1/99
36
Delaware Limited Liability )
41 - 1-page Conceptual Site Plan 41
10 Company; EZRALOW RE -TAIL L )
13
42 - 1-page N Letter of a Conceptual Master Play
43 - 1-page Getter of Transmittal did 9/10/99
44
45
PROPERTIES, a Delaware Limited )
14
44 - 16-page Fax Transmittal Letter dtd 9/16/99
47
11 Liability Company; THE EZRALOW )
Harris Letter to Agra -Hughes
COMPANY, a Delaware Limited )
15
45 - 1-page Letter of Transmittal did 1011M
46 - 1-page Letter of Transmittal dtd 10/13/9
48
54
12 Liability Company; and DOES 1 )
16
47 - 1-page Letter of Transmittal dtd 10/13N9
55
throw 10, inclusive,
through )
48 - 1-page Fax Transmittal did 10/15N9
58
13 )
17
49 - 1-page Fax Transmittal dtd 10/15/99
59
Defendants. ) __ _
50. 1-page Letter of Transmittal did 10/18/99
60
14
18
51- 3-page Fax Transmittal did 10/18/99
62
15
52 - 1-page Cover to Specific Flan Number 13
69
19
53 - 1-page Artistic Rendering 69
16
54 - 3-page Fax Transmittal dtd 10/18/99
71
17
20
55 - 1-page Fax Transmittal dtd 10/15/99
73
18
56 - 3-page Fax Transmittal dtd 10/18/99
74
19
21
57 - 1-page Letter of Transmittal dtd 1021/99
75
58 - 1-page Letter of Transmittal dtd 1021/99
76
20 The deposition of FRANK CODA, taken on behalf of
22
59 - 5-page Facsimile Transmission did 1027/99 77
21 the Plaintiff, before Jo Anne Tsutsui, Certified Shorthand
60 - 1-page Letter of Transmittal dtd 102L/99
82
22 Reporter 9038 for the State of California, commencing at
23
61. 4-page Memorandum dtd 1027/99 82
62- Transmission dtd
d 10�/99 884
23 9:57 a.m., Thursday, July 27, 2000, at the Law Offices of
24
63 - 4-page G o ier Foundation y
24 Tuchman & Associates, 3435 Wilshire Boulevard, 30th Floor,
64 - 8-page Madera Letter dtd 1120�
86
25 Los Angeles, California.
25
65 - 1-page Fax Transmittal dtd 11/30/99
93
2
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
3
4
1 (Pages 1 to 4)
i
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
I E X H 113 1 T s (Cootirto
1
Thursday, July 27, 2000, 9:57 a.m.
2 Plaintffli Exhibit For Wenti6cum
3 66. 3-pags H C
Lei`z2�ema Croasittgt Meeting 93
2
Los Angeles, California
4 67 - I -page Mamer Site Phu lot
3
68 - 1-page Morgan Letter did 12/799
5 69 - I -page Morgan Lana did 12/7M
1l0
110
4
FRANK CODA
6 n - i-page aofTranmoutnl didd iivva
111
5
was called as a witness by and on behalf of the
7 n - i-p gge Lenasmittal did mM 121`108899
its
6
Plaintiff, and having been first duly sworn by the
74 - 2-page Latta of Tranamrrial did IV10t99
8 75 - I -page Born Fax Traniautw 1.1
118
7
'
Certified Shorthand Reporter, was examined and testified as
76 - l-page Latta of T =a:intal did 12/15199
122
$
fOIIOWS'
9 77 - 1-page Letter of Transmtral did I1115199
124
78 - I -page Sterling Art Invoice e18923
124
9
10 79 - t-page Fu Transmittal did 1/3M
125
go- I -page Fu Transmittal did WtOO
127
10
EXAMINATION
11 81 - 3-page Fix Transmittal did 1/3M
128
S2 - I -page Latta of Transmittal did 1/40
129
11
12 83 - l-page Letter of Transmittal did 1/5=
130
84 - I -page Latter of Transmittal did 1/6M
130
12
BY MR. COHEN:
13 8866. 1-pMc Letter of Tnainamtuai dW L/7W ittal did 1/6/00
31
13s
13
Q Can you state and spell your name for the record,
14 87 - I -page Lena of Transmittal did 1/10,00
88 - 5-page Fax Transmittal did 1/10M
135
136
14
please.
Is 90-pageLenTransmittal did 2)00
i-page Lena f awrw dW /2M
13990
15
A Sara. My name is Frank Coda. That's C-o-d-a.
lb 91 - I -page Liner of Transmittal did III2M
92 - 1-page Letter of Transmittal did 1/12i00
139
40
l40
16
Q M name is Loren Cohen. I represent Burlington
)r p
17 93 - I -page Lena of Trsnuttal did 1/14
9d - I -page Lena of Tranusmittal dW 1/14,M 00
14017
1411
in this matter. Can you also sate Our current residence
ttstate y
18 95 . l-page Letter of Transmittal dW 1/14=
141
18
address?
96 - 1-page Madm Latta dW 122i99
141
19 97 - 5-page Faa Tansmittal dW 126,00
142
19
A Sure. It is 40816th Street, Huntington Beach,
98 - 4-page Smith Latter dW 2/IM 147
.
20 99. 4-page Morgan Lena dW 2/1,00
149
20
California 9264&
100 - 1-page Latta of Transmittal dW 22,00
150
21 101 - 3-pagc Fax Transmittal dW W=
150
21
Q And phone number?
l02 - 3-page Fu Transmittal dW 20M
22 I03 - 3-page Fax Transmittal dW 2/10,00
151
151
22
A (714)960.3605. That's home. You gays have my
104 - 12-page Fax Transmissioa dW 211 SM
23 105 - 5-page Fat Transmittal dW 221,00
151
152
23
Work.
106 - 2-page Fix Transmittal dW 22200
24 107 - 3-page Latta of Transmittal dW 222M
153
153
24
_
Q Can you Just give us —108-
I -page Latter of Transtrutial dW 20
25 109 - 2-Me Memorandum dW 3/3i00 �
154
155
25
A (714)259-0500.
5
7
1 E X H I B I T S (Continued)
1
Q
And what is the address of Greenberg Farrow?
2 Plaintifrs Exhibit For Identification
3 110 - 5-page Fax Transmittal dtd 3/8/00
155
2
A
It,s 15101 Red Hill Road, Tustin, 92780.
III - 4-page Facsimile dtd 3/9/00 156
3
Q
The residence address that you provided us, do you
4 112 - 2-page Fax Transmittal dtd 3120/00
113 - 5-page Fax Transmittal dtd 3/20/00
157
157
4
have
any plans of moving from that address?
5 114 - 1-page Letter of Transmittal dtd 3/20/00
157
5
A
No.
115 - 1-page Letter of Transmittal dtd 3/22/00
6 116 - 4-page Fax Transmittal dtd 3124/00
158
159
6
Q
Can I have your drivers license number?
117 - 3-page Fax Transmittal dtd 3/29/00
160
7
A
Sure. Want me to say it or —
7 118 - 1-page Letter of Transmittal dtd 3130/00
119 2-page Multiple Fax Transmittal dtd 3/31/00
160
161
8
Q
Yes, say it.
-
8 120 - 1-page Letter of Transmittal dtd 4/7/00
162
9
A
It's B — this is California. B3463673.
121 - 1-page Letter of Transmittal dtd 4/7/00
9 122 - 5-page Fax Transmittal did 417/00
163
164
10
Q
Have you ever had your deposition taken before?
123 - 2-page Fax Transmittal dtd 4n100
164
11
A
Yes.
10 124- 1-page Letter of Transmittal dtd 4113/00
165
125 - 3-page Fax Transmittal dtd 4/14/00
165
12
Q
How many times?
11 126 - 1-page Fax Transmittal did 4/24/00
166
13
A
Three or four.
127 - 2-page Letter of Transmittal dtd 6f29/00
166
12 128 - 3-page Fax Transmittal did 4/24/00
166
14
Q
As a party or as just a percipient witness?
13 130 - 54age M emooramdttdd sn=—
1167
'15
A
As a side party, I guess. I don't know how you —
131- I -page Letter of Transmittal dtd 6/19/00
169
16
we've never been sued.
14 132 - 1-page Letter of Transmittal dtd 6/27/00
170
17
Q
Never been sued?
133 - 0-pap Not Marked —
15 134 - 0-page Not Marked- —
18
A
We'rejest the lowly architects.
135 - 0-page Not Marked
16 136 - 26-page Transmittal did 12/9/99 —
170
19
Q
You have some familiarity of the deposition'
18
20
process; is that correct?
19
21
A
Sure.
21
22
Q
III just quickly go over some of the standard
22
23
stuff.
The oath that you took today is the same oath that
_a
24
24
you would take in court. That means you have to tell the
25_
25
truth,
nothing but the truth. Do you understand that?
6
8
2 (Pages 5 to 8)
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLIN ON V. HUNTINGTON CENTER
k_
1 A Yea, I do.
1
2 Q And the court reporter will prepare the deposition
2
3 transcript which will be my questions and your answers.
3
4 You'll have an opportunity to review the transcript and
4
5 make any changes, but any of the changes that you make may
5
6 be commented on, and we may make some further comment about
6
7 why these changes were made. Do you understand that?
7
8 A Yes, I do.
8
9 Q So basically what we want is your best testimony
9
10 today. Do you understand that?
10
11 A Sure.
11
12 Q Is there any reason why you caul give your best
12
13 testimony today?
13
14 A No.
14
15 Q No medication or anything like that?
15
16 A Iasi night's drinking. No.
16
17 Q You're here pursuant to a deposition subpoena.
17
18 MR. COHEN: I'd like to mark for ideatification as
18
19 Exhibit 1 the subpoena.
19
20 MR. WATSON: Do we want to keep going in the numbering
20
21 order?
21
22 MR. COHEN: You know what? I guess we will. What did
22
23 they leave off — off the record.
23
24 (Discussion held off the record.)
24
25 MR. COHEN: What well do is mark the deposition
25
E
1
subpoena as Exhibit 33.
1
2
(Whereupon Plaintiffs Exhibit 33 was marked for
2
3
identification.)
3
4
BY MR. COHEN:
4
5
Q You received this subpoena; is that correct?
5
6
A May I see it?
6
7
Q Yeah, take a look at it. Tbat's fine.
7
8
MR. WATSON: I assume we`re back on.
8
9
MR. COHEN: Yes.
9
10
THE WITNESS: I did not receive these first two pages.
10
11
BY MR. COHEN:
11
12
Q Of the notice of the deposition? But you received
12
13
the actual subpoena itself —
13
14
A Right
14
15
Q — and the attachment —
15
16
A Yes.
16
17
Q — for document production?
17
18
A Yes, yes, yes.
18
19
Q What is your position at Greenberg?
19
20
A I am a prmcipai'in the firm.
20
21
Q When did you become a principal?
21
22
A Just like two or three years, maybe.
22
23
Q How long have you been working at the firm?
23
24
A 12 years.
24
25
Q Can you describe your duties at the first?
25
10
A Yea
Q Okay.
A I'm generally responsible for — I have multiple
tasks, so bear with me. I'm responsible for the Tustin,
the western division offices which is Tustin and Oakland.
I also am responsible for all architecture in a national
basis. We're a seven -office national architect firm, A and
E firm and the principal in charge of all architecture.
And then I also have some dudes on project related
specific projects. I'm also the primary architect on this
particular project.
Q And were you the primary architect from the
beginning of the project?
A That's cotrecL
Q And when was that?
A We started looking at this, I think it was May.
Sometime last summer. Sometime spring or summer last year.
Q So May '99?
A Yeah, plus or mimra
The Ezralow Company is a client of ours with
multiple projects. So the way it works 1% Oh, here's
another one. And that's why I don't have an exact date
that we started. But it was somewhere in that time frame.
Q So it's the Ezralow Company that has retained your
services? .
11
A Yes.
Q Huntington Center Associates? Are you familiar
with Huntington Center Associates?
A Not realty. I assume it's just the entity that
they set up to manage the project That's how most
developers do iL
Q "They" being Ezralow; is that correct?
A RighL
Q What licensing and credentials do you have?
A I am a licensed architect in the State of
California
Q Anything else?
A No.
Q Highest level of education?
A My bachelors in — how does this work? Bachelors
in science and architecture. BS in architecture.
Q Where did you get that. from?
A Georgia Tech.
Q How many divisions -- is it okay if I just say
Greenberg?.
A Absolutely. We usually use GFA.
Q Let's use it the way you use it. How many
divisions does GFA have? You mention there's a western
division?
A Okay. I guess we're broken into about three
7ILIO Sit ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
12
3 (Pages 9 to 12)
1 divisions: The East Coast, Midwest and the West.
2 Q Does GFA work on projects for Ezralow throughout
3 the country or primarily in the west?
4 A Only in the West, only because Ezralow has not
5 done any projects elsewhere.
6 Q I take it you're familiar with the shopping center
7 at Huntington Center?
8 A Yes, I am. Not only as a professional, but as a
9 resident of the City.
10 Q So you've been there before?
11 A Yes.
12 Q
Professionally, as well?
13 A
Both.
14 Q
Okay. What's GFA's involvement in the
15 redevelopment that is now going on with the Center?
16 Describe it.
17 A
I would say we are the primary architect of record
18 for all development activities.
19 Q
Are there any other architects or architectural
20 firms?
21 A
There is a designer.
22 Q
Who is that?
23 A
That is Tom Sawyer of --
24 Q
Can you spell that for us?
25 A
I believe it's S-a-w-y-e-r.
13
1 Q Do you know the — is it Tom Sawyer & Associates?
2 A Yeah, it's in here. Make sure I get it right
3 And they're -- while I look it up — has been assisting as
4 on the look, the look of the —
5 Q Does that mean the Italian theme —
6 A Right
7 Q --that's being created? Was Tom Sawyer the one
8 who thought of the Italian village look?
9 A No, actually, there's a company, specifically Doug
10 Gray, and myself have been playing around with different
11 themes. We said let's try the Italian theme. And then we
12 brought in Tom Sawyer, because of his expertise on that
13 sort of work. We were lacking in that area in terms of
14 Italian villa. He's a set designer for Hollywood, so be
15 had dote a lot of that fate.
16 Q Facade?
17 A Facade wort.
18 Q I'd like to get his address and phone number.
19 A I'm stiff looking for it I'm sorry.
20 Q When was he retained?
21 A You know what? Let me find the address, because
22 that's got the transmittal I believe that was somewhere
23 in the late fall, November, December.
24 Q Of'99?
25 A Of'".
14
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
I Q Have you worked with Tom Sawyer before?
2 A No.
3 Q So this was from Doug Gray from Ezralow?
4 A From Ezralow, that's correct
5 Q Who are the primary persons from the Ezralow
6 Company that you're working with on this project?
7 A There's -- well, I guess Doug is the primary
8 person we work with. There's also Paul Bernard that we
9 work with --
t0 Q Go ahead.
11 A -- who is kind of Doug's assistant on the leasing
12 side. And then we work with Christina Hughes who is the
13 construction manager, if you would, for the Ezralow
14 Company.
15 Q Hughes?
16 A H-u-g-e-s.
17 MR. WATSON: g-h?
18 THE WITNESS: Sorry, g-h.
19 BY MR. COHEN:
20 Q What was her title?
21 A I call her the construction manager. I don't
22 really -- she may have an official title that I'm not aware
23 of.
24 Q Do you know Doug Gray's title?
25 A I believe it's president of the Ezralow retail
is
1 division. I may have that off a tad, but
2 Q Ezralow also does office space; is that correct?
3 A Apparently from what I know of them, and I got
4 involved with them probably four years now ago with them.
5 Ran into them on a project And they do office. I think
6 they do multi -family, kind of diversified. Just genera[
7 developers when projects make sense.
8 Q Are you familiar with Scott Dinovitz?
9 A Yes, I am.
10. Q What capacity are you familiar with him?
11 A He has been taking the lead as far as the
12 entitlement process with the City.
13 Q Do you know if he's affiliated with Ezralow?
14 A He is a consultant, is my understanding.
15 Q Is he going to be the contractor?
16 A No.
17 Q Is his company or anything that he's developed
18 with going to be contractor? .
19 A No. It's Larry, Larry Dinovitz and
20 Scott Dinovitz. Father, son. Larry Dinovitz is involved
21 on other Ezralow projects. I think they used Scott on this
22 one primarily for the entitlement, while Larry has place
23 assisting us on the construction side.
24 Q What does that mean, "construction"?
25 A Well, in other words, when — you know, the
16
4 (Pages 13 to 16)
3ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
1
pricing of the project There's always as in any project,
1
2
there's decisions you make— As an example, the existing
2
3
project is on piles. Do we use existing piles? Drive new
3
4
piles? What can we use? What can we not use? He's been
4
5
doing that investigation. We pall up an existing pile to
5
6
see what shape it's in, to find out can we reuse if. Kind
6
7
of give you a sense. Construction matters that will affect
7
8
dollars, he would be kind of assisting on what's the best
8
9
decision making for that.
9
10
Q And Scott Dinovitz works with the City?
10
11
A Scott is taking the lead with the City. As an
11
12
example of that, he was taking the lead on preparing the
12
13
specific plan. So he would call us for all the exhibits
13
14
and language that was needed for the specific plan. And
14
15
there's multiple consultants on the specific plan, so we
15
16
were one of many, but be was coordinating that effort and
16
17
take it on through.
17
18
Q So is he retained by Ezralow, do you know?
18
19
A I assume so, I don't think he's working for free.
19
20
Could be.
20
21
Q Now, the City of Huntington Beach hasn'tretained
21
22
the services of GFA? (
22
23
A No, that's correct. This is bothering me. Can I
23
24
take one break until we talk so I can find —
24
25
MR. COHEN: Let's go off the record.
25
17
1
(Discussion held off the record.)
1
2
THE WITNESS: Mr. Richard Sawyer is actually the
2
3
person. And he is with Tom Sawyer Design Group.
3
4
BY MR. COHEN:
4
5
Q And their address is?
5
6
A 630 South Detroit Street, Los Angeles, 90036.
6
7
Q And their phone number?
7
8
A That, I don't have with me.
8
9
Q What are you looking at?
9
10
A I was looking at a transmittal dated January 14
10
11
where we were sending him a partial site plan of the
11
12
village area
12
13
Q That's part of the production you provided us
13
14
today?
14
15
A RighL Now, you guys are — this is my only copy,
15
16
so you're going to copy this; is that correct?
16
17
MR. COHEN: Yeah, off the record on that.
17
18
(Discussion held off the record.)
18
19
MR. COHEN: Let's go back on the record.
19
20
BY MR. COHEN:
20
21
Q Okay. The documents that you brought today, who
21
22
assembled those documents?
22
23
A This is our project Me that we just keep. So
23
24
it's assembled by the people working on iL
24
25.
Q And would that be yourself?
25
18
A No, that would not be myself. That would be
others in the office. There's a gentleman by the name of
Bob Bocci who works for me. That's a gentleman by the name
of Jon Veregge also works for me.
Q And they gave it over to you?
A That's correct. I said, "Give me the file."
MR. COHEN: I'd like to mark these documents for
identification. I'm going to mark them each separately as
a separate exhibit. Well just cut through it.
MR. WATSON: Do you have some paper clips and post -its?
MR. COHEN: Yeah. Let me go get some.
(Recess taken.)
MR. COHEN: I'd like to mark for identification as
Exhibit 34 a fax transmittal dated July 27, 1999.
(Whereupon Plaintiffs Exhibit 34 was marked for
identification.)
BY MR. COHEN:
Q Can you give a brief explanation of what this
document is?
A Sure. This is a transmittal. We were sending
some project information to one of our design partners in
Atlanta.
Q Would this be the initial start date that your
firm —
A Well, probably a little bit earlier, because I
19
didn't see the need to bring Osvaldo in until we understood
what the scope of the work was or where we were headed.
That probably corresponded to that May'", because this is
dated July 27. So it probably puts as in the category of
that May.
Q Is this chronological?
A I don't know. I haven't looked at It, to be
honest. I hope it is, but don't hold me to it.
Q Okay.
MR. COHEN: Another document, it's the same thing.
This is the confirmation. We keep the confirmation of the
faxes. Well mark the confirmation as 34-B.
(Whereupon Plaintiffs Exhibit 34-B was marked for
identification.)
THE Wfl'NESS: Well probably see duplicate things.
We're kind of sensitive to record -keeping.
BY MR. COHEN:
Q Well, thats good.
A This looks like the same.
Q This is going to be the same thing as well.
MR. COHEN: Well mark that as 34-C —
BY MR. COHEN:
Q Is it because these were CC-ed to several
different people?
A I don't know. I don't know why there's
JILIO 8t ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
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1 duplicates. It looks like this one was signed and this one
2 wasn't.
3 MR. COHEN: Well marked the signed one as Exhibit
4 35.
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(Whereupon Plaintiffs Exhibit 35 was marked for
identification.)
MR. COHEN: I'd like to mark for identification as
Exhibit 36 a letter of transmittal dated August 13, 1999.
(Whereupon Plaintiffs Exhibit 36 was marked for
identification.)
BY MR. COHEN:
Q Can you give a description of this?
A It looks like we're sending a copy of a site plan
over to harry Dinovitz. And you can see there was
confusion with as at the beginning, because we address it
to the Ezralow Company in Calabasas, addressed to Larry,
but that's because at the time Bob didn't understand that
Larry was actually an outside consultant, because it tuns
pretty close. It seemed like they're all together, but
they are separate.
Q So to your knowledge, Larry Dinovitz has worked on
several different projects with Ezralow Company?
A Correct I believe there's a longstanding
relationship there. That's the impression I get. Just it
looks like the particular issue was the parking structure
21
that we were adding..
Q Okay. So at this time of August 13, 1999, GFA has
already prepared site plans; is that correct?
A That's correct.
Q Can you describe what a site plan is?
A A site plan is — okay, I know, this is basically
a plan view, like an aerial shot of what a project may be.
Best way I can describe W
Q Is something like that contained in the SP-12 or
SP-13?
A Yes. There is a site plan in here. For example,
this would be — this is a landscape concept plan, but this
is generally a site plan showing, looking down on the
project, aerial view plan view of the whole site.
Q Right now you`re pointing -to page 54 of SP-12.
A That's correct This is actually SP-12,
Exhibit 13.
Q Exhibit 13 of SP712.
Do you know when you first prepared a site plan
for this project?
, A I'm guessing a little bit, but I would suspect
it's somewhere in that late May, early June.
Q And is this done on a computer like a CAD program?
A No, this was probably done by hand at the time.
Q The first one?
22
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTOWCENTER
1 A Right. We do, depending on the need of the site
2 plan. You know, sometimes it's a very quick, big, fat
3 concept site plan. Hey, we can pat some mass over here,
4 some parking over here. That would be a freehand one.
5 If we need to count parking someplace, we would
6 get into a computer -generated for more accuracy.
7 Q The site plan you were pointing as SP-12 is that
8 computer or —
9 A That's computer.
10 MR. COHEN: I'd like to mark for identification as
11 Exhibit 37 another letter of transmittal dated August 20,
12 1999.
13 (Whereupon Plaintiffs Exhibit 37 was marked for
14 identification.)
15 BY MR. COHEN:
16 Q Can you give a brief description of this?
17 A Suter This we have a transmittal of a site plan
18 to Doug Cleary or Home Base.
19 Q Who are they?
20 A Home Base is a home improvement retailer in
21 Southern California.
22 Q So this was a proposal to try and get them to
23 lease space?
24 A Correct.
25 Q Is GFA involved in assisting Ezralow, let's say,
23
1 to get retail tenants?
2 A If you define "assist," the answer is "yes."
3 Assist is send site plans to potential users, send
4 information. I mean we're just — as an example, you
5 got — I was subpoenaed because we're keeper of the
6 records. So we have all the information. So, hey, you
7 know, they will call us. Ezralow Company will say, Send a
8 package over to so-and-so. And we'll, whatever it is,
9 sometimes — sometimes a lot of these retailers we know
10 because that's our specialty is retail, actually. So you
11 know, we'll — in this case, we're courting Home Base.
12 We'll put their footprint on the site plan. So when they
13 get it, hey, that's as. Could we tit here? Yes or no. So
14 to that degree of assisting, yes.
15 Q But it's Ezralow who directs you —
16 A Correct.
17 Q -- to send it out to a particular retailer?
18 A Correct
19 Q You did not locate or find retailers?
20 A No, we may make suggestions, because we know the
21 market Point of the profession things we do as architects
22 is we think about the mix of users. And we do make
23 recommendations. Well, I think we ought to have a
24 nightclub or I think we ought to have a restaurant to help
25 this space and feeling.
24
6 (Pages 21 to 24)
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FRANK CODA, 07.27.00
BURLINU fON V. HUNTINGTON CENTER
1
Q Has GFA made any suggestions or recommendations
I
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regarding this property as to retailers?
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A Yeah,
3
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Q What kind of suggestions has GFA made?
4
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A Our feeling is that it needs to be a very high -end
5
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establishmeat and not just retail. And in fact when you
6
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look at the surrounding, I guess in a way they're competing
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centers. You have Westminster Mall down the road. You
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have South Coast Plaza. Irvine Spectrum. You have the
9
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Block at Orange. You have Fashion Island. You go and look
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at all those. You see what retailers they have, what they
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don't have, and why they may be successful and why they may
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not. We recommend that for a successful project you want
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to have something unique in the marketplace. So yes, we
14
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were recommending a high -end retail, slash, entertainment,
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slash, eating concept.
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Q Was GFA consulted prior to Ezralow's purchase of
17
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this property?
18
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A Yes. Yes, I can remember the date Doug called me
19
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and said, do you know the Huntington Center? I said, Do I?
20
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Because I live there. It's a great piece of property. As
21
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an investment, I mean the previous owners, Macerich, was in
22
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my opinion they dropped the ball and were foolish to sell
23
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it. But it's my own opinion professionally, I guess
24
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Q Can you describe what else was said in that
25
qE
I
conversation?
1
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A Just that they were looking at acquiring the
2
3
project and what my thoughts were as, I guess, again as a
3
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consultant just like an attorney, anyone else, their client
4
5
says Hey, what do you think? I said, Hey, it would be
5
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great. It would be perfect to redo the whole thing. It's
6
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got to go. City's been wanting to redo it for ten years
7
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since I moved in there '92. It's an eyesore to the City.
8
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I guess that's a little bit of my living in the city. I
9
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try not to mix the two. But it's been long overdue. So I
10
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was really excited, not only from the potential of being
11
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the architect, but as a resident in the city. It would be
12
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great to do something with it.
13
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MR. WATSON: Can I ask a question? When was this
14
15
conversation?
15
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THE WITNESS: I guess Pat still in that May '99.
16
17
BY MR. COHEN:
17
18
Q May 199. But this is prior to their purchase?
18
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A Oh, yeah. That's typical. I mean of course I
19
20
would recommend to any client to get their architect
20
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involved prior to any purchase.
21
22
Q Especially of this magnitude?
22
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A Right.
23
24
Q It was being contemplated that it was going to be
24
25
. a massive redevelopment of the center at that time?
25
tV
A Right, that was my recommendation.
Q And what was Doug Gray's comments?
A I think we were in agreement that there -- you
need to do something dramatic, different.
Q Did that mean raising all the structures?
A Yeah. There's really nothing worth saving out
there. Again, that's my professional opinion. The
buildings are very old. It doesn't fit the -- doesn't fit
the concept that we had in mind in terms of a high -end
outdoor area type of thing.
Q What about the Mervyn's location?
A It was there.
Q Does that fit into the -- your concept, though?
A Rather not have it there.
Q What about the Montgomery Wards location?
A Rather not have that there either.
Q Have you had any conversations with Doug Gray or
anyone else from Ezralow regarding keeping or somehow
getting rid of the Montgomery Wards or Mervyn's?
A Any and all of those. When you go to diverge a
little bit when you look at a site, you look at any and all
possibilities, from keeping everything which we went
through, to demolishing everything, to picking pieces and
parts. We had -- actually, EDAW — this is one of the
consultants — had done a scheme that made it a — like a
27
town with roads and blocks and, you know. So you typically
do that. You go, okay, you got to look at this as a clean
slate and what is the best, highest use of the project —
of the property.
Q What is EDAW? What do they do?
A EDAW is — they — well, they're a consulting firm
that prepares environmental impact statements,
environmental impact reports I think they were part of
the specific — they were involved in the specific plan in
some way. I'm surprised they're not on there.
Q They are on the second page I believe?
A That's what I thought.
Q We're looking at SP-12.
A Ob.
Q Right there.
A I thought they were.
Q They're on SP-13.
A Yeah, they had dome the specific plan for the
previous project that was proposed by Macerich. So, it was
obviously beneficial to the project to engage them to help
us modify that previous specific plan.
Q Would that be plans 1 through 11 then?
A The specific plans?
Q Yeah.
A Yeah, that would most likely be the case. I'm not
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sure why the numbering system is as it is. But I know
there was a previously approved specific plan for the
previously approved Macerich project
Q Was it approved by the City?
A I believe that was the case. That was my
impression. At least it had been approved. And then
Macerich did not act on it
Q Did you take a look at that?
A At their plan?
Q At that plan.
A SP-2.
Q Where is it?
A I'm sorry. It's in this book.
Q Okay. Well get to it -
A Yeah, it is their previous plan in here somewhere.
I know we have a copy of it, and we had looked at that
Q Okay. Well get to it. Ill make a note.
MR. COHEN: I'd like to mark for identification as
Exhibit 38 a letter of transmittal.
(Whereupon Plaintiffs Exhibit 38 was marked for
identification.)
THE WITNESS: This is going to Scott Dinovitz. We were
sendlNG four full-sized hundred scale site plans and four,
11-by-17 site plans. And looks like four of three
elevations. So we're transmitting plans and elevations to
29
Scott, which would mean we would be -- and it was per the
request of Paul Bernard. He's starting to get his hand
around what the project is, what he's going to have to do.
Starting to get involved with this project, I guess.
BY MR. COHEN:
Q Now, this is enclosing the site plans. Do you
know where the site plan is that that is referring to?
A We have all the site plans, and I guess we — it's
going to be difficult We can look at them all, but to say
this is the site plan that went with this transmittal.
Q I'd like to try to do that Is that going to be
in this book?
A No, you'll have to come down to our office. We'll
have to go through the plans and try to match it up.
Q Okay. Well, do you know if= how many site plans
were created for this project?
A Full and partial, the combination of those two,
and the sketches and everything, just to give you an
example, that's probably in the order of 50 to 75 of
partials and little, you know, sketches on this corner
and —
Q Now, in the — at least SP-13 -- there's two
primary design plans?
A Conceptual site plans; that is correct
Q One being — that includes Burlington, and one
Ful
FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
1 that doesn't include Burlington?
2 A Correct
3 Q Now, when you say 50 or 70, are you just saying
4 that you're just totalling up like different little pieces
5 of those two plans?
6 A No, I'm talking about all — all concepts and
7 plans that we may have generated or had generated on the
8 project
9 Q I see. So there have been roughly 50 to 70
10 distinct conceptual design plans or site plans created for
11 this project?
12 A No, as far as distinct plans, we're probably in
13 the order of live to ten. That's what I meant by partial.
14 Sometimes we'll say, hey, let's look at this one -
15 corner of the site and see if we can increase the GLA or do
16 the parking. We won't draw the whole concept again. We'll
17 try the corner. So the combination of full site plans and
18 sketches trying to get you a sense of the volume.
19 Q 50 to 70?
20 A Right
21 Q Maybe as far as —
22 A Probably in the five to ten at most
23 Q Out of those five or ten, do you know how many of
24 those actually included the Burlington structure?
25 A I would say possibly two or three. The Burlington
31
1 structure, it represents a problem in the siting of the
2 project
3 Q I want to get to that — well, why is it a
4 problem?
5 A Well, because again if you're — the premises
6 again, as we're trying to create something much better than
7 is there, the physical location of that building was —
8 it's just in a bad place from a planning perspective in
9 terms of parking layout, in terms of the village and the
10 courtyard that we were trying to create. And the masting's
11 all wrong. It's a three-story, old, ugly building. Our
12 masting is for a two-story quaint village. You've got a
13 bad location. You got a bad masting.
14 Q Does the Montgomery Wards structure pose any of
15 the same problems?
16 A A mach lesser degree because its location on the
17 site is — we were able to accommodate being able to keep
18 it if we wanted. We still would like to see it not be
19 there, but we were able to accommodate that situation
20 because of its location. And also Montgomery's, if they
21 stay in the project, they were talking about rebuilding
22 their building anyway. So we had the opportunity to get
23 rid of the roasting problem and site it differently.
24 It won't be the exact same footprint, but we were
25 able to move it up left or right or up or back to tie it
32
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31LIO & ASSOCIATES CERTIFIED COURT REPORTERS
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FRANK CODA, 07.27.00
SURLIN.. , ON V. HUNTINGTON CENTER
1 into the concept better. We had more flexibility with them I 1
2
building a new building.
2
3
Q You don't necessarily mean building a new
3
4
building? You mean creating a facade?
4
5
A No, the discussion with them was they were going
5
6
to build their own building.
6
7
Q Actually raise the existing —
7,
8
A They didn't need the square footage. They had too
8
9
much square footage. These are discussions we had with
9
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them. This goes back to the assisting side that you
10
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mentioned.
11
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Many times once we start that, sending the
12
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package, we'll be talking to their architects or real
13
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estate person or trying to get a feel for what it is they
14
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want, what the issues are.
15
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That facility, they really conveyed to as they
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didn't have a problem rebuilding a new building. They
17
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wanted a new box, because it's outdated for them and more
18
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square footage than they need. All the factors. So we
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were able to move around
20
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And in fact, we had contemplated building over
21
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their new building with more of the center which was —
22
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because they only wanted one story, so we could have — for
23
24
instance, we contemplated putting the theater over that at
24
25
one point in time.
25
33
1 Q When were these conversations?
1
2 A Oh, this, these conversations started in say July
2
3 or September. And to be honest, they still continue
3
4 today. We don't have a solid site plan. We don't have
4
5 a-
5
6 Q And these are conversations with Montgomery Wards
6
7 people regarding what to do with their structure?
7
8 A No, the Montgomery Ward conversations probably
8
9 started -- well, we'll probably come to one when we send
9
10 them something to give us an indication. But probably in
10
11 August, September, and continued threw up until say January
11
12 or February.
12
13 Q Are you still talking with them and working with
13
14 them?
14
15 A Not at the moment.
15
16 Q Do you know why?
16
17 A No, I don't. I think we just don't agree on — on
17
18 an architect basis, we didn't agree on the look they were
18
19 proposing. On a development basis, I don't know why.
19
20 Q Okay. On the Montgomery Ward side, who were you
20
21 talking to or who do .you see?
21
22 A We'll have to say. See, I personally was not
22
23 doing the talking. That's Bob Bucd.
23
24 Q Bob Bucci's position at GFA?
24
25 A He's actually our landscape department head, but
25
34
he also serves as a project coordinator.
Q But do you know — do you have any knowledge as to
who on the Montgomery Ward side is the contact?
A Well, we'll probably. I'm sure there's a
transmittal in there, because I know we sent them site
plans and they sent as elevations. And there's the back
and forth.
Q Now, you didn't bring all of the site plans with
you today?
A No, I didn't. I should have called you and said
let's have the deposition in my office, because that would
have been the better. But anyway.
Q Well move on. And talk about maybe something in
the future. Okay.
MR. COHEN: I'm going to mark for identification as
Exhibit 39 a letter of transmittal, September 22, 1999.
(Whereupon Plaintiffs Exhibit 39 was marked for
identification.)
BY MR. COHEN:
Q Can you describe what this document is?
A We're sending two 100 scale site plans of the
project per the request of Paul Bernard to this person,
Tricia Lynch at UM. I don't know what she does, who she
is. Probably a potential resaler.
Q You don't know what IJM is?
35
A I don't know.
Q Okay. Most of these past transmittals weren't
signed. Does that mean that there may be an original out
there that was signed?
A No, I don't think. It's not actually our custom
to sign them. It didn't mean that there's an original or
not.
Q At this point these are the only copies?
A That's correct.
MR. COHEN: A letter, another letter of transmittal.
I'd like to mark for identification as Exhibit 40 another
letter of transmittal dated —
TTE WITNESS: No.
MR. COZEN: — 9/1/99. And this is a yellow piece of
paper.
THE WITNESS: Right.
(Whereupon Plaintiffs Exhibit 40 was marked for
identification.)
BY MR. CORN:
Q Can you give a little description of what this is
and why it's on yellow?
A Deal with the yellow issue first. Around that
time we were transitioning from the old carbon transmittals
to computer -generated. So this is a hangover from the
carbon transmittal. This is actually sent out by one of
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1
the adman staff, Kim Locke. She was using up the
1
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carbon -type transmittals.
2
3
Q Being efficient?
3
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A Yeah. This is going to Grub & Ellis who is a
4
5
broker firm. Attention -- I guess I can't quite read iL
5
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Mike something. Zoob.
6
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Q Zobe or --
7
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A Something like that And looks like what are we
8
9
sending, some site plans again. Two copies.
9
10
Q And this again is Grub & Ellis being a broker or
10
11
agent?
11
12
A Most likely they're probably representing some
12
13
users that Paul -- Paul Bernard is really the main leasing
13
14
guy. He assisted Doug, but he's the person. He's the
14
15
person soliciting tenants. A lot of our direction comes
15
16
from him as far as send this to so-and-so, blah, blah,
16
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blab.
17
18
Q Paul Bernard is Ezralow?
18
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A He works for Ezralow retail division.
19
20
Q Okay. Do you know if any retailers have actually
20
21
committed to coming into this project?
21
22
A I don't know that anyone has signed a lease. 1
22
23
know we have a lot of "yeah, we want to be there."
23
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Q Uh-huh.
24
25
A Depends how you define "commitment" I'd like to
25
37
1 believe they are, but do we have any signed lease? I don't
1
2 believe we do. I'm not under that impression.
2
3 Q Are they making any design specifications or
3
4 design requests that you are currently incorporating?
4
5 A Absolutely. That's kind of the process. In
5
6 general. In this project, you development it. You
6
7 solicit Someone gets a user involved. You send them what
7
8 you think. They say, "No, this is what we think." Then
8
9 you go back and forth on look and location and design until
9
10 both parties say "Okay, we can agree," or "We can't agree,"
10
11 and either you're not in the project or —
11
12 Q This is what you have to live with?
12
13 A Right, you got it
13
14 Q Right now for this project, you're working with
14
15 several retailers? _ _
15
16 A That's correct Retailers and restaurants and
16
17 theaters-
17
18 Q What retailers?
18
19 A I belleve we're working with — I call them the
19
20 Gap Companies, which is like Old Navy and
20
21 Abercrombie & Fitch. And I think there's one other that
21
22 goes with them.
22
23 Q Are they thinking about putting Old Navy in there?
23
24 A They were. I don't know the status today whether
24
25 they're in or out That's one of the things. We don't
25
38
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
necessarily know who's in or out at any given point of
time. All we know, all these people we talked to and sent
information and try to deal with and done elevations for.
But on this exact day, that, I would not know.
Q Do you know approximately how many square feet Old
Navy wants or was looking at?
A They typically take like 25-,30,000 feet
MR. WATSON: When you say "they," just the Gap Company
in general?
THE WITNESS: No, Old Navy. We've done Old Navy in
other shopping centers. Usually they're 25,000 to 30,000.
BY MR. COHEN:
Q Usually Old Navy would be a bigger space than the
Gap?
A Typically. The other thing we were trying to do,
get them to go two-story, because typically retailers want
to be one-story.
Again, back to the concept and the most economical
use, we were looking for users that would go as a two-story
use. And that's not too common. You have to kind of
pressure them a little biL So we were hoping that they
would accept thaL Then we could get the vertical, the
two-story vertical element we needed to increase our — all
the good things that go with doing a two-story thing.
Q For retailers, what's the maximum sized square
39
footage you would like to see go in there for one
particular retailer?
A On this particular project?
Q Yes.
A Well, there's a couple of areas. Bat in general,
in what I'll call the mall, not the mail area, the —
Q Village?
A Village area. And the courtyard for lack of
better terms today. You realty want to be over that 25-,
30,000 feet, because if you get over that, you're going to
have a tenant that has a different margin. You can
probably press to 45,000. I think Circuit City was looking
at 30- to 40,000 feet, but they were not right in that
Q They're existing already outside the --
A We had been talking about moving them into the
center and redoing their space.
So you can do the bigger users away from the main
street, because they're — again, it goes back to a masting
issue. The box is bigger. But when they're right on that
street, right on the walkway, you really don't want, you
know, 50 or not even that There will be 100 feet of
frontage. And most of those retailers want a blank wall.
They don't want windows. They don't really want any of
that stufL So from a took point of view, it kind of ruins
the whole look that you're trying to accomplish.
40
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FRANK CODA, 07.27.00
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I
Q You'd rather have window frontage and smaller?
I
2
A Right.
2
3
Q What other retailers? You mentioned the Gap group
3
4
of companies. Anything else?
4
5
A like I said, we had, well, Circuit City in there.
5
6
We had been talking to Best Buy. They were interested.
6
7
Q How many square foot for them?
7
8
A 45,000.
8
9
Q Is that going to be in the -- the central area?
9
10
Do you know what I'm talking about when I say --
10
11
A Let me look at a plan.
11
12
Q Yeah, let's look at a plan.
12
13
MR. COHEN- Actually, III mark one of these site
13
14
plans as an exhibit. We're on 41. No, I have it right
14
15
here. I'd like to mark as Exhibit 41 a site plan that's
15
16
entitled the Crossings at Huntington Beach.
16
17
(Whereupon Plaintiffs Exhibit 41 was marked for
17
18
identification.)
18
19
BY MR. COHEN:
19
20
Q This one, I presume excludes the Burlington
20
21
structure; am I correct on that?
21
22
A Yes, you were. Right, they would be. We would be
22
23
contemplating — you can see a bigger user outside of this
23
24
main area. So they would be either in here or actually
24
25
we're talking about putting them over here.
25
41
1 Q When you're pointing —
1
2 A Sorry.
2
3 Q -- to the south, that faces the Edinger Avenue —
3
4 1 don't know if this is south. It face's the Edinger
4
5 Avenue street?
5
6 A It would be the area that's facing Center, over
6
7 here.
7
8 Q Oh, the one that faces Center?
8
9 A If you're going to do something, you're going to
9
10 do it back in this area for the larger users.
10
11 Q And that's the left upper quarter of the site
11
12 plan?
12
13 A Yeah. Trying to get — I mean pretty much the
13
14 ocean is this way.
14
15 MR. WATSON: Right.
15
16 BY MR. COHEN: __
16
17 Q We can divide it up in quarters. When you're
17
18 facing it left, upper quarter, which has two big boxes and
18
19 the parking structure?
19
20 A Correct
20
21 Q So that's where the —
21
22 A You're either going to do larger users in that
22
23 quarter or you're going to come down on the diagonal
23
24 corner, back at Beach and Edinger and try to reconfigure.
24
25 Q That would be in the lower right-hand quarter of
25
42
the --
A Plan.
Q -- site plan?
A Uh-huh.
Q Where is the movie theater contemplated?
A Right now it's on second level, this dash line.
Q It's the dash line that's really in the center of
the — I'm going to mark the movie theater as "A." Can you
put it down?
A Surely.
Q Where it's going to be?
MR. WATSON: Use a blue pen.
THE WITNESS: 11 do arrows to give you the outline.
The arrows are pointing to the outline of the movie theater
which would be above that level.
BY MR. COHEN:
Q I see. There's going to be a two-story elevation
there; is that correct?
A Correct On the first level you're going to have
some retail and shops and restaurants all in this
courtyard. Then you'll have some vertical transportation,
elevators and escalators and stairs, which would bring you
up to theater leveL
MR. WATSON: Is any of this set or.final?
THE WITNESS: No, nothing's ever set or fmaL- I wish .
43
it was, because it's driving me nuts.
MR. COHEN: I also want to mark as Exhibit -- mark for
identification as Exhibit 42 another, what's entitled
"Illustrative Conceptual Matter plan."
(Whereupon Plaintiffs Exhibit 42 was marked for
identification.)
BY MR. COHEN:
Q This one, I presume, includes the Burlington
space?
A That would be correct. Indicated In this
cross -bashed building right there.
Q Can you mark that on there as Exhibit A where the
Burlington space is located?
A Sure.
Q And on Exhibit 42, can you mark where the movie
theater would go?
A It looks like it would be right in this
cross -hashed area right here. I'm going to call that "B."
Q Well call the movie theater on Exhibit 42 B.
A I'll use the red.
MR. WATSON: I don't mean to interrupt your question.
The Exhibit 42 has a May 22, 2000 date. Do you know when
Exhibit 41 would be dated? Because I don't see one on
there. Is it before or after or you don't know?
THE WITNESS: I don't know.
44
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JILIO 8t ASSOCIATES CERTIFIED COURT REPORTERS
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1 BY MR. COHEN:
2 Q I do like to find out these dates. I presume on
3 the plans, the big plans that you have back at the office,
4 are they stated?
5 A Some are, some aren't.
6 Q Are they blueprints that you have at the office?
7 A No, they're actually original drawings vetums or
8 plots of drawings.
9 Q And those would be on the computer?
10 A Some are, some aren't. Some are hand, some are
11 computer.
12 Q The ones that are done on computer, is the
13 computer — would that give us a date of when it was
14 created?
15 A It should have a Ilk date.
16 Q A file date?
17 MR. COHEN: I'd like to mark as Exhibit 43 a letter of
18 transmittal dated September 10, 1999.
19 (Whereupon Plaintiffs Exhibit 43 was marked for
20 identification.)
21 THE WITNESS: Again, this is going to Grub & Ellis
22 again. Attention, Mike Zoob. Here's the person that —
23 just out of curiosity — 9/1 — September loth. Okay. For
24 some reason we sent them again site plans.
25 /
45
I BY MR. CORN:
2 Q And you don't know — do you know which site plans
3 were sent?
4 A No. We might be able to figure that out.
5 Q Do you think that it could be Exhibit 41?
6 A I don't know.
7 Q You have no idea?
8 A I have no idea. And you know, someone's going to
9 be problematic on the dates, too, because the computer file
10 changes the date. It's not a record. We don't keep of
11 record of it, so if we changed a parking space yesterday —
12 Q You ll resave it and it becomes the new date?
13 A No, it will just — yeah, it will resave it.
14 Q And that becomes the new date. To your
15 knowledge, is there any way we can pin:down when these
16 plans were prepared?
17 A I'm not going to say. I mean we'll have to sit
18 there and try and figure it out. We may be, we may not be
19 able to. This Is one of the problems with the computer
20 world, by the way. It used to be we had a paper copy of
21 everything. And now computer world is good news, bad news.
22 Certainly, we can try. You just can't guaranty we can
23 specifically say what plan went to what person. I guess if
24 it was important, maybe they still have a copy of that.
25 Q l might have to get it from them.
46
FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
1 MR. COHEN: I'd like to mark for identification as
2 Exhibit 44 another fax transmittal letter from Geotechnical
3 Professionals, Inc., dated September 16, '99.
4 (Whereupon Plaintiffs Exhibit 44 was marked for
5 identification.)
6 BY MR. COHEN:
7 Q What is it?
8 A This is coming from the G.P.I., which is
9 Geotechnical engineers, which basically thin is their
10 preliminary feasibility study of the geotechnical issues of
11 the site. This is their report
12 Q And the report — I guess Exhibit 44 goes on, with
13 the fax cover sheet there's a five -page report, another
14 page entitled references, the sixth page, and then a site
15 location map and another.
16 A Existing condition site plan.
17 Q Site plan. And that's the complete exhibit -- oh,
18 no. It goes on. There's an appendix to Exhibit 42. What
19 is this cone penetrometer?
20 A This is a diagram of CPT for short And it's
21 another way in Hea of doing a boring to find out
22 sub -surface conditions.
23 Q See what the soil is made out of?
24 A You got it. And these are the results of that
25 CPT.
47
1 Q The next page, entitled "Log of CPT" —
2 A C-1.
3 Q There's one, two, three, goes up to five pages of
4 log results for the CPT. And that's all of Exhibit 42.
5 A Right. In fact, these black marks will probably
6 be the CPTs, one, two, three. These correspond on the site
7 plan, the black dots correspond to the results of these
8 sub -surface investigations-
9 Q You're pointing to the black dots contained on the
10 site plans of Exhibit 42?
11 A Right.
12 Q Ib you think this is the site plan that was
13 attached to the previous fax transmittals?
14 A No, this is an existing condition site plan.
15 Q I understand. This is how the property looks
16 today?
17 A We would not — chances are we would not be
18 sending existing condition site plans to any of these
19 previous people. We would probably be sending proposed
20 site plans, since we're sending to brokers
21 MR. COHEN: I'd like to mark as Exhibit 45 another
22 letter of transmittal dated October 1, 1999.
23 (Whereupon Plaintiffs Exhibit 45 was marked for
24 identification.)
25 THE WITNESS: This is going to — he misspells the word
48
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
1
Benchmark Morley instead as Benchmade. But Benchmark
1
Q Do you know where that's located?
2
Morley is a contractor. So we are sending them a site plan
2
A Which one?
3
No. I. Conceptual site plan No. 1.
3
_ Q Streetscape. Was this project a Dream Works
4
At some point in time we started to number them.
4
project?
5
So somewhere in, what, September, October, we -- probably
5
A The one — there's two. Sony Pictures one which
6
what happens is you're doing all these different things and
6
is the old Columbia studio, that's definitely the
7
finally things start to settle down. You say okay this is
7
streetscape look.
8
somewhat real.
8
Q That you're looking for?
9
BY MR. COHEN:
9
A That we looked at to see how they might have
10
Q Put a number to it?
10
accomplished it with paving. And for them to show as their
11
A Let's put a number to it.
11
work. The DreamWorks was more of a campus style. It
12
Q But that has no correlation to the specific plan
12
wasn't more of a street style, more campus style. However,
13
12 or specific plan 13?
13
it was a good example of their work. They wanted to show
14
A No, independent numbering.
14
us, hey.
15
Q Okay.
15
Q Do you know where they re located?
16
A So we're sending the site plan to the contractor,_
16
A Who?
17
knowing it's not stated here, but it is probably at the
17
Q Swingerton?
18
request of Larry Dinovitz, because he's taking care of
18
A Not offhand.
19
pricings. He probably said, Bob, send over a site plan so
19
Q They're Southern California?
20
they can see what we're thinking about as of this day.
20
A Yeah, they're right in L.A.
21
Q To your knowledge, has Ezralow retained Benchmark
21
Q Okay. And the third?
22
Morley as the contractor for this project?
22
A The third was another one of these big guys that
23
A No. It's typical to, if you have relationships
23
we didn't get too far on. I don't remember their name
24 with contractors, to ask them to look at it, what do they ( 24 offhand. May be in here. Maybe come up with it But the
25 , think? Rough, is it ten million? Is it a hundred million? 25 third was a person that we — as soon as I find 14 I'll
49 I 51
1
Q They bid out just to get a quick estimate?
1
2
A I don't think they bid out. It's morewhat are
2
3
you talking about here?
3
4
Q Do you know if a contractor has been approved yet?
4
5
A No, we have interviewed numerous, two or three
5
6
contractors. I was a part of that myself But we have
6
7
not, to my knowledge, came to a selection of the
7
8
contractor.
8
9
Q What contractors have you interviewed?
9
10
A Well, Benchmark Morley was one. Swingerton and —
10
11
I'm sorry. I can't remember their last name. They're a
11
12
fairly large contractor In the area They did. We went up
12
13
and saw Universal Studios and the Sony Pictures because
13
14
they were the contractors on that.
14
15
Q Did they do City Walla?
15
16
A They did not do City Walk.._.—
16
17
'Q, They did something on the lot, Universal Studios?
17
18
A Right, not Universal. It was Sony. And who is
18
19
the — darn. Who Is the — like the main producer guy
19
20
that —
20
21
Q Dream Works, Spielberg?
21
22
A Right Those two campuses because they were —
22
23
the work they did. And it was kind of as close we could
23
24
get to a like kind project, a streetscape or something like
24
25
that, to interview them.
25
50
go, Yeah. We looked at them and said that they're not
really what we're looking for.
Q They're out of the picture, the third?
A Right.
Q Are you looking at anyone else?
A Not currently. But you know, we're at a point
if -- before we start the next, the next big thing for as,
once a site plan is finalized, then we start schematic
drawings. And that's when — we recommend, don't have to
do it this way, but we recommend the owner retains the
contractor that he hopes to use, so we can work with them
In developing the schematic plans and the design
development plans and constriction documents.
You can also not involve anyone. We can prepare
everything and just send it out to bid to a hundred
people. But on a project of this nature, it's not the best
way to go. You're best to have one. You may still bid it.
You may still say, you know, Mr. Contractor, we're going to
pay you a fee; work with this architect to develop the
stuff, but we are going to bid the whole thing• to get the
best pricing. That's common too.
Q Is the City of Huntington Beach — have they made
any input in this, the development of the site plans?
A No. Typically, In fact, cities are pretty strong
on not trying to get into that recommendation issue.
52
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1 They're pretty much the response — you send as something, I I
2
we'll respond to it. If they respond positively or
2
3
negatively, you adjust your plan. But it's never like,
3
4
hey, we'd like to see you do this or do that, what have
4
5
you.
5
6
Q The structural makeup of the redeveloped mall,
6
7
that's pretty much it's Ezralow's decision; is that
7
8
correct?
8
9
A Yeah, I guess. I think they still need the City
9
10
to approve it. It is a specific plan. And I think this
10
11
was in the redevelopment area. So you need those agencies
11
12
to review and approve the project.
12
13
Q But I guess the way it works is Ezralow will
13
14
decide on a plan and then they will present that for
14
15
approval --
15
16
A Correct.
16
17
Q -- to the City?
17
18
A Correct.
18
19
Q And then the City will determine whether or not it
19
20
meets their specific plan 13; is that correct?
20
21
A Whether they like it or not is basically what
21
22
the — the City's a very difficult city. It's one of the
22
23
most difficult to work with actually.
23
24
Q But at this stage, it's Ezralow who's creating
24
25
that?
25
53
I A Right.
2 MR. COHEN: I'd like to mark as Exhibit 46 another
3 letter of transmittal dated October 5, 1999.
4 (Whereupon Plaintiffs Exhibit 46 was marked for
5 identification.)
6 BY MR. COHEN:
7 Q Give a description of this.
8 A This is going to Mark Stoner at Edwards Cinemas.
9 So this would be a conceptual site plan we sent This one
10 has a date on it
11 Now my guys are starting to do a little better
12 documentation. And again at the request of Paul Bernard.
13 I'm sure we're talking to Edwards. We were talking to
14 Edwards because Edwards bad an agreement with Macericb
15 prior to Ezralow buying this thing. --So they kind of came
16 along with the project.
17 Q I see.
18 A So once the sale — the sale hadn't happened yet,
19 because this was October. Once, you know, we had — I
20 believe there was a lease signed with Macerich and.
21 Edwards. So we were working with them to — because they
22 had bought off on a site plan, the previous project site
23 plan. And that particular site plan, we were not
24 interested in that site plan at all. It wasn't what we
25 wanted to accomplish back to the uniqueness. It was like
54
1
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3
4
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7
8
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
everything else, so why bother? So we wanted —'we had to
work with them to get them to, you know, a new location,
basically the second -story concept. So that's probably the
beginning of this whole discussion
Q Prior to the Ezralow's purchase of the property,
you took a look at the Macerich site plan?
A Yes.
Q And that was pretty much discounted before
purchased?
A Yeah, it was not a very good site plan. When we
get to it, if you want, we can discuss why.
Q Sure. And again, you don't know what conceptual
site plan?
A We made a better shot here, because we got a date.
MR. COHEN: Okay. I'd like to mark for identification
as Exhibit 47. better of transmittal dated October 13,
99.
(Whereupon Plaintiffs Exhibit 47 was marked for
identification.)
BY MR. COHEN:
Q Can you give a little description of this?
A This is going to Mr. James Rabe at Keyser Marston
and Associates. I don't know who they are. Personally, I
don't know who they are. Bob sent it out. Agak this Is.
a site plan at the request of Doug Gray.
55
Q Could they be a retailer?
A I don't know. Because it's this Keyser Marston
and Associates, not going to be a retailer. Either going
to be a broker or some other consultant that we didn't use
or never heard oL I never heard of. So I don't know what
their role is — was. Because it's coming from Doug, it
probably wasn't necessarily a broker. It was probably some
other — could be, you know, could be one of the financing
folks because they, Ezralow, had to get their financing in
place. So these might have been one of the gays that was
doing analysis for the financing package they were trying
it get Perhaps. I'm kind of reading into things. Kind
of speaking out of tone.
Q Do you know if they got their financing yet?
A Ezralow?
Q Yeah.
A I believe they had.
Q This was for the pre -development portion of it?
A Construction.
Q The construction?
A Right
Q How often do you speak to Doug Gray?
A I speak to him about once a week or once every
other week.
Q That's been ongoing since —
56
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
A Well —
Q — May 199?
A Right On this particular project, yeah.
Q He's the primary person from Ezralow that you
speak to?
A Correct.
Q And how many times a week do you speak to
8 Scott Dinovitz?
9 A I don't personally. I speak to him maybe once a
10 month. He'll call me on, hey, I didn't get this thing.
11 Can you get your gays to do it, because I'm the boss man.
12 Q I see.
13 A He was — Scott was primarily dealing with
14 Jon Veregge.
15 Q Another associate with your firm?
16 A Right. We have a team of about five or seven
17 people that have been working on this project.
18 Q Five or seven people exclusive to this project?
19 A Right
20 Q I know that you identified — of that, that
21 includes Bob Bucci?
22 A Bucci.
23
24
25
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25.
Q Bucci?
A And Jon Veregge, which are'& two primary other
people. And below them are the drafters and the designers
57
and, you know, the worker bees.
Q Okay.
A Jon above had the contact with the outside world.
Q So outside of -- the only people that would
contact or be in communication with Ezralow would be
yourself, Bob and Jon; is that correct?
A Yeah.
Q And between you three, you had communications on
an ongoing basis with every Ezralow was may of 199?
A Yeah, farther, I had communications every day with
those two to know what's going on and give guidance,
because I'm the primary architect on this project.
Q Okay.
A Here we go. Montgomery Ward.
MR. COHEN: I'd like to mark as Exhibit 48 a fax
transmittal It's dated October 15, 997.
(Whereupon Plaintiffs Exhibit 48 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A Also, could we have some soda brought in?
MR. COHEN: Most certainly. You want to take a break.
(Recess taken.)
BY MR. COHEN:
Q Let's go back to Exhibit 48. Can you describe it
58
1 for us?
2 A Okay. This is a transmittal going to Loren Hohman
3 over at Montgomery Ward's. And let's see what was said.
4 We sent them our fax and telephone numbers so they can
5 forward to =- or you may forward them your architectural —
6 this is our kind of a first communication with Montgomery
7 Ward's saying, you know, we're going to be working with —
8 we've been instructed by our client to work with you on
9 architectural looks and design and concepts for the Wards.
10 They have architects. This is the beginning of that going
11 back and forth with them.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q So it was Doug Gray of Ezralow that instructed GFA
to begin working with Montgomery Ward's?
A That's correct
Q Do you know the name of Monkey -- Montgomery
Ward's architects?
A I do not Bob would know, but I do not.
(Discussion held off the record.)
MR. COHEN: I'd like to mark for identification as
Exhibit 49 another fax transmittal dated October 15, '99.
(Whereupon Plaintiff's Exhibit 49 was marked for
identification.)
THE WITNESS: And this looks like the same transmittal,
but it looks like we were sending a copy over to Doug of
what we sent to Loren. So this is a copy to Doug of the
59
communication we had with Loren.
BY MR. COHEN:
Q Sort of a CC?
A Right
Q Okay. Did you ever speak personally with
Loren Hohman?
A No, I did not
Q Have you ever personally spoken with any of the
architects from Montgomery Ward's?
A No, I did not That's Bob's role.
Q That's Bob's role?
A RighL
MR. COHEN: I'd like to mark as Exhibit 50 another
letter of transmittal dated October 18, 1999.
(Whereupon Plaintiffs Exhibit 50 was marked for
identification.)
BY MR. COHEN:
Q Can you give a description of what this is?
A This is a .transmittal to John Tarts of Tarios
Associates.. They are architects that do restaurant work
typically. We worked with them on the past on other
projects. We're sending them a site plan and elevation for
restaurant No. 2. Apparently, they were going to be the
architects at that particular time working on that project.
Q When you say restaurant No. 2 on this site plan,
60
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1 would that be Exhibit 41; and if so, can you point that
1
2 out?
2
3 A Chances are in October it's not Exhibit 41. Only
3
4 because a lot of these restaurants have been moved over and
4
5 over. Concept was set, but we had restaurants over here
5
6 for a while, we bad restaurants over here for a while. So
6
7 1 can't —
7
8 Q You're pointing towards --
8
9 A Sorry..
9
10 Q Let's mark this as "B." What you're pointing to
10
11 is that the Village Strata? Is that known as Villa Strata?
11
12 A That's what we're starting to call it.
12
13 Q Okay.
13
14 A Typically names change a million times in
14
15 projects. And usually at the end somebody says, "Well,
15
16 what are we going to call it?" I call it the streetscape.
16
17 We haven't — if they call it the Village Strata, that's
17
18 nice. It's really the street scene/streetscape.
18
19 Q That's the B section?
19
20 A B section.
20
21 Q I've got a quick question. Let's mark this
21
22 section that I'm pointing at as "C" on Exhibit 41.
22
23 A Okay.
23
24 Q And is "C" an open-air part of the mail?
24
25 A CorrecL
25
61
1 Q Or is that closed?
1
2 A Everything is open air.
2
3 Q But where the section, Section A, where the
3
4 theater is going to be, that's not going to be open air?
4
5 A Underneath that That's correct.
5
6 Q So where this dotted line starts, that's where
6
7 you're going to have the second level?
7
8 A You have it correct.
8
9 Q Now, the plans that you're working up now, how far
9
10 off is it from at least Exhibit 41 or Exhibit 42?
10
11 A Plans in terms of? Define.
11
12 Q The actual — the site plan that you are --
12
13 A Site plan,
13
14 Q — moving towards to finalizing?
14
15 A Should be pretty close to this
15
16 Q 41?
16
17 A 41.
17
18 Q Not 42?
18
19 A CotrecL.
19
20 MR. COHEN: Okay. Let's move on and mark as Exhibit 51
20
21 fax transmittal dated October 18, 1999.
21
22 (Whereupon Plaintiffs Exhibit 51 was marked for
22
23 identification.)
23
24 THE WITNESS: This is a fax transmittal going to
24
25 Doug Gray of the Ezralow Company. It looks like we are
25
62
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
sending him a hardline plan with the summary of footages.
Here's an attachment.
BY MR. COHEN:
Q 51 includes an attachment of conceptual site plan
No. 1?
A That's correct. And the summary.
Q And a summary. Let's see how many pages that is.
So Exhibit 51 consists of three pages. The site plan and a
summary entitled Huntington Crossing.
A Which is summarizing all the square footages on
the site plan No. 1.
Q I see. And on page three of the site plan,
Mervyn's, Burlington and Montgomery Ward are indicated; is
that correct?
A That's correct. I believe they're indicated on
the site plan as well. Yup.
Q Okay. And this site plan is — they're
indicated, I understand. They're indicated right here?
A RighL
Q And this is Montgomery Ward's existing space?
A That would be correcL
Q Is this their automotive section?
A No.
Q That's their automotive — okay.
A Which they don't want or don't need.
63
Q It's your understanding they don't care about the
automotives?
A No, that's correct.
Q How did you come to that understanding?
A I personally came to it through conversations with
Bob and Doug that they were not very interested. They
didn't — they — they didn't feel they needed to have this
as an out -building. They perhaps were going to put it —
again, talking about a new — a new building. Perhaps they
were going to incorporate it. But there wasn't any
particular need to keep that as a self -standing building.
Q So you're looking at page two of Exhibit 51
entitle "Conceptual Site Plan No. L" And you're pointing
at the lower left -band comer where the Montgomery Ward's
automotive center is as a separate structure?
A RlghL
Q You're saying they don'treally care about having
it as a separate structure?
A That's correcL It was our impression,
understanding, direction, that they were — that was — we
would remove that and put parking there.
Q I see. But is it your understanding they wanted
to incorporate their automotive facility in a new
structure?
A I don't know.
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1 Q You don't know?
2 A I meant we made that assumption, but that may be a
3 wrong assamptim Maybe they were thinking of moving it
4 off site. Maybe they were thinking of not doing it
5 anymotre.. I don't know.
6 Q What's Ezralow's opinion of having Montgomery Ward
7 doing automotive at this new mail?
8 A Well, you'll have to ask Ezralow. My opinion
9 would be that would not be a good thing to do. It doesn't
10 fit with the theme and the nature of what we're trying to
11 accomplish.
12 Q Have you had conversations with anyone from
13 Ezralow regarding the automotive and whether it would tie
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into the newly developed mall?
A Only to the extent of that's where we get the
impression that Montgomery Ward's didn't need that, didn't
care it it was gone or stayed. In other words, draw site
plan without the tire and battery. You know. They agreed
that Montgomery Ward's had agreed they could build a new
building. We had freedom to redo that side.
Q Who told you to -- who told you to — who from
Ezralow told you to draw a site plan that excluded —
A It would have been either Doug or Patti.
Q And who told you to — who from Ezralow told you
to draw a site plan, Exhibit No. 41, which excluded
65
Burlington?
A It would have been Doug or Paul. I mean we -- to
that point, we drew a site plan without them at the
beginning, because it's not the right answer for this site
for this project, for this streetscape.
Q Uh-huh.
A So, you know —
Q But they directed you to?
A There's lots of times we just draw something.
Q In this particular instance, did they tell you to
draw plans that excluded or got rid of the Burlington
structure?
MR. WATSON- We were talking about the auto shop.
MR. COHEN: I know. Now we're moving to Burlington.
THE WITNESS: I guess I don'tsee it that -- it's not
like black and white that way. I don'f know. Maybe this
is -- it's not like do it this way. You sit around, say,
Hey, what would work? You know, Doug and I definitely
talked about whether Burlington fits or not. And we said I
don'tthink it fits, that building, the structure. Don't
get into the use of the tenant, but the building and
structure does not fit in what our vision of the center
was.
BY MR. COHEN:
Q Uh-huh.
66
1 A So we said, Fine, let's draw it without it.
2 Q It was a group decision?
3 A I wouldn't say it's like a directive. I'm trying
4 to make the distinction. I guess that's partly because
5 that's what we do as a consulting firm like, "Here is what
6 I think we should do."
7 Q Uh-huh. Well, do you know whose idea it was? Do
8 you know who it came from? Either the architect or Ezralow
9 to try and do away with it?
10 A Well, like I said, in the beginning we actually
11 did plans -- we did schemes that don't even look like this.
12 We just said demolish anything. Don't try to reuse the
13 existing piles, slab. That is from a money and technical
14 aspect. The decision to reuse the existing pile -supported
15 slab, that kind of set in motion this specific -- this
16 answer.
17 Q You say it was Larry Dinovitz who gave -- who you
18 consulted with to determine whether you could use the
19 existing piles and slabs?
20 A Correct. Right. So what happens, you have a team
21 of people that probably decides. You say, yeah, we tested
22 the piles. I personalty was the one who said we're crazy
23 not to.
24 Q Not to?
25 A Not to use.
67
1 Q Not to use them? Should use them — .
2 A Absolutely, because you have an existing structure
3 that works, it's fine. Putting in piles and a structural
4 slab is a major cost.
5 And the other thing is the site is a three -sided
6 site. You have Center Avenue. Center Avenue is one side.
7 Beach. So there's no — in the retail world there's
8 usually a back of the house, behind the building, the
9 loading. We don't have one. So there was no logical place
10 to — you know, it Center wasn't here, you probably, and
11 the piles were here, you probably would have put everything
12 against Center and faced it towards Edinger.
13 But given all these site constraints, the decision
14 to reuse existing slab and keep it as a center facing out
15 on all sides was in my mind the most economical and the
16 best project
17 Q I see. I just have a quick question. The facade
18 or the structures that will face Edinger and the structures
19 that will face Center, are they also going to have like the
20 Italian village?
21 A Uh-huh.
22 Q How are they actually going to look -- can you
23 describe what is it going to look like, the design
24 renderings? i guess I can mark it as an exhibit.
25 MR. COHEN: I'd like to mark for identification as
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Exhibit 52 and mark as an exhibit the face page of SP-13
which includes an artistic rendering of what the mall may
somewhat look like.
THE WITNESS: Right.
(Whereupon Plaintiffs Exhibit 52 was marked for
identification.)
MR. COHEN: And Exhibit 53 which also includes a
picture, an artistic rendering of what the mall may look
like.
THE WITNESS: Right.
(Whereupon Plaintiffs Exhibit 53 was marked for
identification.)
BY MR. COHEN:
Q Now, is that the village strata? Is that section
B?
A That would be correct.
Q Exhibit 41?
A That would be correct. The view, the look of the
Edinger facade.
Q Yes.
A On this side of the main cross drive, you would
have something looking very similar to these Exhibits 52
and 53 in terms of the look, because we have buildings
facing out. On this side, we'll have the rear.
Q You're pointing at section C then?
69
A That's correct.
Q Okay. Let's move on.
A On section B, the — the Edinger facade, that will
be the rear of these buildings, but we are going to dress
them up so they don't look like rears. They will have
articulation and the Italian themed look to it. So you
drive by, you wouldn't know that it's the back of the
building.
Q But it wouldn't necessarily look like individual
houses or individualized buildings that the artistic
renderings in 52 or 53 have?
A They will.
Q What about the side that faces Center Avenue?
A Same would be true. They will look like
individual buildings and small, little shops. Again, back
to the concept of trying to do the Italian village, you
know, and the scale of these buildings and the look. I
mean we have, for instance, this building right here, even
though it's one user will look like two buildings.
Q I see.
A So there's a look that you're trying to break down
the scale of these larger buildings into small buildings.
Q That's possible? You can have a bigger wall, but
make facades that look like they're individualized
buildings; is that correct?
70
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
1 A Absolutely.
2 Q Okay.
3 A Everything is possible-
4 MR. COHEN: Mark for identification as Exhibit 54
5 another fax transmittal dated October 18, '99.
6 (Whereupon Plaintiffs Exhibit 54 was marked for
7 identification.)
8 THE WITNESS: This is going to Doug Gray. It looks
9 like we're sending him a Huntington site plan and Pomona
10 site plan per the request of Paul.
11 BY MR. COHEN:
12 Q Pomona is just another project?
13 A That's correct.
14 Q And the site plans are not attached?
15 A We have no doe what we sent.
16 Q Let me understand how you maybe keep your records.
17 A Sure.
18 Q Are these — would you describe how you would keep
19 your fax transmittals? Is that in a separate file?
20 A Generally, there's one [Ile until the project
21 becomes voluminous where you need to break it apart. On
22 this project we are still in basically the one-Ne stage,
23 because we really haven't gotten into the meat of the
24 project actually for w4 for architects. This is really
25 just conceptual site planning and programing. And the neat
71
1 step, which would be the schematics, that's when you get
2 into our real work..
3 Q That's the blueprints?
4 A That's blueprints when you start putting
5 dimensions and you pat columns in and exiting, and dealing
6 with the lire department and starting to deal with codes,
7 structural elements. AB life safety issues.
8 Q Air-conditioning systems and —
9 A HVAC, yes. That's where we really start
10 generating the — this typically, this is not unlike every
11 other project we do. Most of oar work product is site
12 plans. Concept site plans trying to get things cooking.
13 And, you know, we generally, depending on the
14 client, some clients want a very specific numbering
15 sequence. Some clients — in this case, they didn't. They
16 said just send we site plans. You know, we don't —
17 because we really only had one project We were focused.
18 As site plans came out, you'll see when we get to site
19 plans. We probably have a numerous amount labeled No.1
20 that look differently.
21 Q Okay.
22 A Personally, I think it's a mistake. But you know.
23 Q Especially when you come to this stage?
24 A Now we're regretting it, right.
25 But it got to this point where we have numerous
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BURLINu rON V. HUNTINGTON CENTER
1 number ones. We have, you know, we don't have a good — we I 1
2 have maybe a good record keeping of what talking and
2
3 sending to, but we don't know as we sit here what specific
3
4 plan was sent to wbo t.
4
5 Q I see. So your correspondence would be kept in
5
6 one file?
6
7 A Uh-huh.
7
8 Q And that just goes chronological?
8
9 A Right.
9
10 Q And then the actual --
10
11 A Plans are kept in a flat file.
11
12 Q Okay. And that, you didnl bring with us?
12
13 A No, I did not-
13
14 MR. COHEN: Let's move on to -- well mark for
14
15 identification Exhibit 55.
15
16 (Whereupon Plaintiffs Exhibit 55 was marked for
16
17 identification.)
17
18 BY MR. COHEN:
18
19 Q I guess this is a fax confirmation?
19
20 A Right, this looks like the fax confirmation of
20
21 earlier exhibits.
21
22 Q October 15, '99. Is that this?
22
23 A The one right before that.
23
24 Q Well, okay. This is simply the fax confirmation
24
25 of Exhibit 48?
25
73
1
A That's correct.
1
2
MR. COHEN: Okay. I'd like to mark --
2
3
THE WITNESS: This is the fax confirmation of that
3
4
Huntington and Pomona that we just saw.
4
5
BY MR. COHEN:
5
6
Q That's this one.
6
7
A October 18. That's correct.
7
8
Q Do you mind if I just put this in back of 54?
8
9
A You may do whatever you want.
9
10
Q This is your notebook. But I think it would be
10
11
easier.
11
12
What I'm going to do, I'm going to put the fax
12
13
confirmation sheet of Exhibit 54 with Exhibit 54, so it
13
14
will be two pages.
14
15
A Jumping ahead, this looks like the same.
15
16
Q. Well just skip over it. Well assume it was
16
17
sent.
17
18
A There's Pomona and this is Huntington.
18
19
MR.COHEN: Well just mark it. Mark as Exhibit 56
19
20
another copy of the fax transmittal, October 18, '99,
20
21
regarding the Huntington site plan and Pomona site plan.
21
22
Exhibit 56 includes the actual Huntington Beach site plan
22
23
and a Pomona site plan.
23
24
(Whereupon Plaintiffs Exhibit 56 was marked for
24
25
identification.)
25
74
BY MR. COHEN:
Q Who came up with the term "Huntington Crossings"?
A We have been wrestling with that, wrestling with a
name for a while. That probably was Doug. I think he was
the one. I was trying to go for the Piazza Huntington, but
like I said, these type of things change at the end
usually. Wait a minute.
Q Like movie titles?
A Exactly.
MR. COHEN: Well mark for identification as Exhibit 57
letter of transmittal, October 21, '99.
(Whereupon Plaintiffs Exhibit 57 was marked for
identification.)
BY MR. COHEN:
Q What is thisT
A This is going to North West Atlantic. These -- I
met with these folks as well. They were — I guess they
were some of the financiers they were entertaining getting
a loan [from. I don't think this was the group they
actually got a loan from, but we sent them a site plan in
October.
Q And this would be the financiers for the actual —
A Construction.
Q Actual construction?
A Right. I don't believe this is the group they
75
made their deal with. You know, in financing you go to a
couple, three or four lenders and see who gives you the
best deal.
Q Do you know who they went with?
A No, I don't. I don't think it was them, though.
But I guess it could be. I generally try to stay out of
the finance side. As long as they have money so I can get
paid, I'm in good shape.
MR. COHEN: Exhibit 58. I'd like to mark for
identification as Exhibit 58 a letter of transmittal dated
October 21, '99.
(Whereupon Plaintiffs Exhibit 58 was marked for
identification.)
BY MR. COHEN:
Q And what is this?
A This is -- looks like a transmittal of current
site plan, full-sized plan, going to the Burlington -- I
assume it's Burlington Coat, Mr. Bob Grapsid --
Q Uh-huh.
A -- per the request of Doug Gray.
Q Okay. And again --
A We do have some dates.
Q We can maybe pinpoint this?
A Right.
Q Plus we probably should have them.
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1 Have you ever spoken with anyone from Burlington?
1
2 A No, I baven't
2
3 Q Has anyone from GFA spoken to anvone from
3
4 Burlington regarding the project?
4
5 A I don't know. If it was anyone, it would be
5
6 Bob Bucci.
6
7 Q But he hasn't reported back to you of anything?
7
8 A My impression was that we hadn't But —
8
9 MR. COHEN: I'd like to mark for identification as
9
10 Exhibit 59. Linscou Law & Greenspan. This is a one, two,
10
11 five -page document.
11
12 (Whereupon Plaintiffs Exhibit 59 was marked for
12
13 identification.).
13
14 BY MR. COHEN:
14
15 Q What is this?
15
16 A Linscott Law & Greenspan are the traffic engineers
'16
17 for the project And I believe this is like their — I
17
18 think this is the parking. Is this the parking study?
18
19 By the way, Macerich is M-a-c-e-r-i-c-h..
19
20 This looks like a summary of existing and proposed
20
21 square footage. It looks like they werejust trying to
21
22 confirm what the square footages are and what the uses are,
22
23 because that is what drives traffic trip — drives traffic
23
24 generation.
24
25 Q Okay.
25
77
1
A So probably before they -- right So they were
1
2
trying to get a handle on starting that traffic — set
2
3
traffic and parking set in. So they were trying to get a
3
4
confirmation of here, what we understand exists.
4
5
Obviously in the development world, traffic is a
5
6
big issue. In the existing center, you want to know how
6
7
much existing should have existed And then the new
7
8
development, if you're adding to or deleting from the
8
9
existing, not just parking, but traffic, cars coming to and
9
10
from.
10
11
Q The flow of how they move in and out?
11
12
A Yeah, more importantly how many, how many cars
12
13
The big issue is trip generation, which means how many more
13
14
cars will come to a site once it's developed, because that
14
15
will have impacts on signals, on surrounding
15
16
neighborhoods.
16
17
So in this case, we have an existing mall, granted
17
18
it's not occupied, but if it were, there was already some
18
19
volume of cats coming based on that And then the proposed
19
20
development, you know, were we going to have more or less?
20
21
If it was more, then we may have to do some impact
21
22
mitigation measures to develop roads to mitigate the
22
23
impact That's how the environmental process works in
23
24
California. You have to mitigate your impacts.
24
25
Q So they go beyond just the actual --
25
78
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
A Oh, yeah.
Q — shopping center itself?
A They may or may not. They usually don't look at
the on -site circulation. That's usually the architect's
job or engineer's job.
We did have a little bit of occasion where they
looked on -site because Cal -Trans had a concern of this off
ramp and how that might work. So yeah, we have been
working with them on this kind of drive loop off the Center
Avenue.
Q Off the 405?
A 405 exit and ooramp. But in general, they're
looking at all the intersections and typically traffic
study will go a couple, three-mile radius to see what the
impacts are.
Q In the surrounding areas?
A In the surrounding area. And what drives that is
square footage. That's how you calculate.
Q As far as this is concerned, does this include
Burlington being there or do you think that matters in
their calculation?
A It actually doesn't matter, because you assign a
certain amount of cars per square foot of retail. That's
how you — retail Is a category. And there's the ITE which
is the International Transportation Engineer's manual used
79
nationally. So all uses have a category. So retail is a
category. It —
Q Some formula?
A — says based on this mach square footage, this is
how many cars you're going to generate. As long as you get
the square footage right of how many retail is going to be
there, it's immaterial what the user is.
Q Between the two plans of — well, I know between
the two plans of 41 and 42, one with Burlington, one
without Burlington, is the square footage difference going
to be that great?
A Not really.
Q It's going to be pretty much the same square
footage?
A I think we got some more square footage.
Q On 41?
A Right
Q That leads me to the next question. I know that
the actual shopping center has to allot a certain number of
parking spaces, usually based upon the square footage?
A That's correct
Q Would including Burlington affect the parking
availability for, you know, meeting those goals and those
needs in the formula?
A I'm not sure I understand your question.
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1
Q Let me rephrase it. If Burlington is included in
1
2
the mall, would there be sufficient parking structure or
2
3
parking facility to meet the proper code?
3
4
A With or without Burlington there would have to be
4
5
sufficient; correR Again, similar to the traffic
5
6
generation, you have to provide X-amount of parking spaces
6
7
per retail per square foot.
7
8
Q Just in my review of 41 and 42, it seems as though
8
9
some of the Burlington existing structure tends to cut out
9
10
some parking spaces; am I correct on that?
10
11
A You are. Well, no, you are correct If you look
11
12
at it — you see the Mervyn's building here?
12
13
Q Uh-huh.
13
14
A Do I need to do this on Exhibit 42?
14
15
Q On Exhibit 42 Mervyn's is actually identified.
15
16
Mervyn's is identified as retail. It's on the north arrow
16
17
by Center Avenue.
17
18
A And if you'll see this, I guess it's the southerly
18
19
edge of this building, it's kind of lined up with the .
19
20
northerly edge of —
20
21
Q A?
21
22
A Trying to give you where that would be. You arc
22
23
correct It does take away some surface parking. You
23
24
know, one could easily increase the number of levels in the
24
25
parldng deck. It's an expense, but —
25
81
1 Q To meet the code, it could be worked out?
1
2 A To that point, yeah. You're not wrong in saying
2
3 that the structure of Burlington takes some parking spaces
3
4 away from this scheme for Exhibit 41. But from my view,
4
5 you have to make the parking count somehow, someway.
5
6 Q And that's possible; that's your job to do it?
6
7 A Correct-
7
8 Q And you can get it done?
8
9 A Correct.
9
10 MR. COHEN: I'd like to mark for identification as
10
11 Exhibit 60 a letter of transmittal, October 21, '99.
11
12 (Whereupon Plaintiffs Exhibit 60 was marked for
12
13 identification.)
13
14 BY MR. COHEN:
14
15 Q What is this?
15
16 A This Is a transmittal. We're sending a site plan
16
17 to Scott Dinovitz per his request. Chances are this was
17
18 just the current site plan of the day that Scott needed a
18
19 copy of for some reason.. -
19
20 Q Okay.
20
21 MR. COHEN: I'd like to mark for identification as
21
22 Exhibit 61 a memorandum from Linscott Law & Greenspan dated
22
23 October 27, '99.
23
24 (Whereupon Plaintiffs Exhibit 61 was marked for
24
25 identification.)
25
82
BY MR. CORN:
Q What is this?
A Again, Linscott Law & Greenspan is our traffic
engineers on the project. And actually, this looks like a
duplication.
MR. WATSON: Same letter it looks like.
MR. COHEN: Is it just a memo form of —
THE WITNESS: They might have faxed that and this is
the original date stamped, yeah.
BY MR. COHEN:
Q It looks fairly similar.
A That's the fax. This Is the original we got. So
that's just — sometimes we do good documentation.
Sometimes we don't. It looks like we have another.
Q With some handwritten notes on it?
A Yeah. So it looks like — I don't know if you
want to mark this.
MR. COHEN: Well mark as Exhibit 62 another copy of
the Linscott Law & Greenspan Engineers report with some
handwritten notes on it.
(Whereupon Plaintiffs Exhibit 62 was marked for
identification.)
THE WITNESS: And it looks like we were clarifying some
of the square footages that I assume — I don't know. To
be honest, I don't know if that's our handwriting or--
83
BY MR. COHEN:
Q Somebody from —
A -- or somebody else's that sent that over to as
saying —
Q It looks like they're just clarifying the letter.
A This is to Scott and to Bob.
I don't know exactly what this handwriting means.
But there was some number stuff. Again, on the existing
land use, somebody was clarifying the typewritten numbers
using handwritten numbers.
Q Very well. Now, you don't — GFA doesn't really
use this report; you're just reporting to —
A Correct
Q -- Linscott to make sure that traffic flows fit
within the code?
A Right. On this particular case it's probably
Linscott's attempt to confirm with ad the parties to
confirm they have the right square footages.
MR. COHEN: Well mark as Exhibit 63 a letter which
also includes a business card from Geopier Foundation
Company Northwest. And it's dated November 5, 1999. It's
from Dennis Burnside.
(Whereupon Plaintiffs Exhibit 63 was marked for
identification.)
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1 BY MR. COHEN:
1
2 Q What is this?
2
3 A This is a sales pitch from — Geopier is a company
3
4 that does some sort of pile foundation system. We've used
4
5 Geopiers on other projects. They're a more economical way.
5
6 Instead of using piles, you can use these Geopiers. And
6
7 they probably heard about the project or perhaps Scott
7
8 called them.
8
9 There's a little example here on the attachment
9
10 showing the sales pitch thing. Here's what you normally
10
11 do. Pile. There's shallow. And there's the Geopiers
11
12 that's going to save you money from driving the piles, but
12
13 still give you the same weight, perhaps.
13
14 Q But in this project right now, you guys are pretty
14
15 much going to use the same piles?
15
16 A Right. We will need to augment. We will need to
16
17 put in new piles because our — imagine, if you will, you
17
18 have a flat slab that has piles in certain locations based
18
19 on the previous projects. We're going to come in and put
19
20 in new structures on those point loads.
20
21 Q They're going to be heavier now?
21
22 A And they may not be in the same location as
22
23 existing piles. If those columns go down and there's no
23
24 piles, we'll have to drive.
24
25 Q I see. At this point, you don't -- you're nowhere
25
85
1 near determining how --
1
2 A No.
2
3 Q -- the piles are going to set?
3
4 A No, we don't even have a site plan.
4
5 Q Okay.
5
6 MR. COHEN: I'd like to mark for identification as
6
7 Exhibit 64 a letter from the City of Huntington Beach
7
8 Department of Community Development, dated November 20,
8
9 1997.
9
10 (Whereupon Plaintiffs Exhibit 64 was marked for
10
11 identification.)
11
12 BY MR. COHEN:
12
13 Q What is this?
13
14 A This is a letter, looks like an inner department
14
15 letter actually. No, no, no, this is goingfrom the
15
16 Department of Community Department, Building and Planning
16
17 to Tom Jayred. I don't know who be is. I guess.
17
18 Q Would he be somebody from Macerich?
18
19 A Macerich? Perhaps. At this point in time, that,
19
20 he's probably the on -sills maintenance guy, if I had to
20
21 guess. And so —
21
22 Q Do you know why this would be in your file?
22
23 A Because generally we get copied on a lot of
23
24 stuff. This went to Jayna Morgan at EDAW, who we were
24
25 working with on a specific plan. She probably sent us a
25
86
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
copy. Because it loops like it was received the 24th at
EDAW's place, so we ended up getting a copy. And as we
look through this —
Q But doesn't this predate your involvement?
A This is — this is the old project then. Okay.
That's what's going on. I know what happened.
Q So EDAW gave you — this is everything we had from
before?
A Here's something that came up, fire department,
because one of our roles is to determine fees. So we
probably had the conversation, well, do you have any fee
estimates from the previous project? And so, EDAW sent
over this stag because this is starting to estimate
department fees for the building permits.
Q I see. You have to estimate all the building
permits?
A Might. That's one of our roles is how much are
the fees going to be, the permit fees. So this is all
one. So this is — that's exactly what this is. This is
we asked EDAW, you got anything about the fees on the
previous project? So they sent over this.
Q How many fees are there, like different types
of —
A Weil, there can be — you know, you can have lots.
of fees, depending on your development. Each building will
87
have a building permit fee. And part of that building
permit fee will be Are sprinkler fee or what have you.
But you have building permit fees, you can have traffic
fees, traffic impact fees. That's another thing that comes
up. You can have drainage fees. You can have public works
fees. I mean, the City's — that's their revenue stream.
There's a fee for everything.
Q Have you paid any fees yet to date for where you
are at this stage?
A We — GFA has not paid any fees. Sometimes we
do. I suspect we probably paid some sort of application
fee for the specific plan.
Q Meaning Ezralow would?
A Right. Some sort of preliminary planning fee.
That's pretty typical. Like the City will go, hey, before
we look at your project, there's this pre -application fee.
Q Does Ezralow give you money and then you cut out
these checks for the fees that you need to pay?
A Sometimes. In this case, they have been cutting
the checks direct, if there has been any. I tried to — I
try to not become somebody's bank.
Q No trust accounts for you.
A But typically, if there's like, hey, we need this
check cut for 500 bucks, if we do, we got n permit. Okay.
I'm part of the team, so here, and I'd get reimbursed. So
88
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1 that's how it goes
2 Q Okay. What's your estimate of when development
3 construction is going to start?
4 A I have always been thinking sometime next -- well,
5 I'm going to say next May.
6 Q Next May?
7 A Yeah.
8 Q That's when the first shovel —
9 A Well, let's define when construction starts. I
10 think demolition could start at any time. We haven't filed
11 for demolition permit, but demolition permits are fairly
12 easy to get.
13 And demolition on this particular thing could
14 easily be two to three mouths But given that we don't
15 have a cite plan to start the schematics, I -- my gat
16 feeling was we were filing for building permits somewhere
17 in February or March at best case.
18 Q February or March of 2000 building permits?
19 A That's right.
20 Q Demolition will occur first?
21 A Demolition can. It's up to the owner.
22 Q What's the contemplation now?
23 A This is — it's always a strategy on all
24 projects Sometimes you want to demo sooner. Sometimes
25 you want to demo later. Depends what message you want to
89
1 send.
2 Right now we're holding off on demolition, because
3 all these issues What are we going to do? Demo around
4 people we don't have deals with? You're going to wait,
5 because it's not economical to demo in stages You want to
6 know what's demo-ed, what's not
7 I guess I'd say once we have a solid deal and site
8 plans set with all the parties, that's probably when we go
9 for the demolition permit
10 Q So demolition you think there will take two or
11 three months; that could occur at any moment but the
12 contemplation now is hold oft?
13 A Make sure you have a plan.
14 Q And then you feel by February 2000, March 2000
15 construction could occur?
16 A No, we will be submitting for:building permits.
17 What else after that? Sorry. This the big debate because
18 I've done projects in the City of Huntington Beach before,
19 and typically a building permit could be four to six
20 months City says, no, we're going to move faster because
21 this is a project we want I don't believe it because I
22 hear that from every city. That's why I was thinking May,
23 June, July.
24 Now, we'll probably get partial permits. We are
25 going to separate this project into pods, if you will.
0If
1 lake you said, A, B and C. And we'll do all the plans for
2 B and submit it, and then go hit C or A. To try to do this
3 all in one would be not the tight move.
4 Q Doesn't the specific plan sort of require it to be
5 in one phase?
6 A No, don't mix —
7 Q Dont mix apples and oranges. What's the
8 difference.
9 A Building permits, you can submit each building
10 separately, if you wanted to.
11 Q You're just talking about building permits in
12 February, and you said youll do it in pods, like sections?
13 A Right. That's why I anticipate, you know, because
14 obviously if you own a project, the longer it sits there
15 without revenue, that's a drain on someone's pocket. So
16 obviously you need to get going as soon as possible. So
17 the best way to do that is in pods, plus the Building
18 Department will then just focus on this one pod, because
19 that's the one side. If they get a huge project, that time
20 frame goes oat:
21 Q Do you have any involvement in the owner
22 participation agreement that's being worked out with the
23 City?
24 A No, I know that they were talking about one and
25 that's the extent of our —
91
1 Q Do you know what that is?
2 A I can tell you experieuce.
3 Q Yeah, that's what I want.
4 ' A Some sort of agreement between redevelopment
5 authorities and owners to do some kind of financing or
6 assistance on the city side, typically what it is.
7 Q As far as you know, that doesn't really have
8 anything to do with getting building permits?
9 A No, it never does They're separate entities
10 And in reality, in most projects you're up and built before
11 you finalize the owner or the participation agreement
12 Usually, believe it or not
13 Q The owner participation agreement can come after
14 the actual construction?
15 A It typically is that type of deal. Usually
16 there's a handshake agreement between the parties, but
17 working out all the details usually takes longer than the
18 construction of the project.
19 MR. COHEN: I'll mark for identification as Exhibit 65
20 another letter from the City of Huntington Beach dated 97.
21 THE WITNESS: Right. This is probably all part of
22 that.
23 MR. COHEN: Let's go off the record for a second.
24 (Discussion held off the record.)
25 MR. COHEN: What well do, Exhibit 64, well include
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1 all of the City of Huntington Beach letters which I'm going I 1
2
to paper clip. There are one, two, three, eight pages to
2
3
Exhibit 64.
3
4
I'd like to mark for identification as Exhibit 65
4
5
a fax confirmation of a fax transmittal from GFA to Mark
5
6
Pitcher (sic).
6
7
(Whereupon Plaintiffs Exhibit 65 was marked for
7
8
identification.)
8
9
THE WITNESS: Pichell.
9
10
BY MR. COHEN:
10
11
Q Pichell?
11
12
A P-i-c-h-e-I-L
12
13
Q Yeah, what is this and is this enclosed?
13
14
A I don't know. Four pages. Could be. I guess I'd
14
15
have to say, no, it's different dates. I think this is
15
16
just a miscellaneous in transmittaL
16
17
Q Do you know who Mark Michell is?
17
18
A No, I don't
18
19
Q Message 40?
19
20
A For you.
20
21
Q Oh, message for you. Okay. Well move on.
21
22
MR. COHEN: I'd like to mark as Exhibit 66, Huntington
22
23
Center Crossings, Meeting Minutes, December 2, '99.
23
24
(Whereupon Plaintiffs Exhibit 66 was marked for
24
25
identification.)
25
93
t THE WITNESS: Right, this is from Jayna Morgan with
1
2 EDAW. Looks like meeting minutes.
2
3 Attendees: Scott Dinovitz. They were confused.
3
4 Said he was with the Ezralow Company. EDAW is Jayna, Alia,
4
5 Khara Covington. Hall & Foreman who's our civil engineers.
5
6 GFA, Robert Bucci. Linscott Law, I guess Keil Maberry.
6
7 BY MR. COHEN:
7
8 Q What do these minutes —
8
9 A They're a meeting on December 2nd.
9
t0 Q Were you present at this meeting?
10
11 A I was not.
11
12 Q Okay. Robert was, though?
12
13 A Right.
13
14 Q Do you know where this was located?
14
15 A Most likely [sour office. _ -
15
16 Q In GFA's office?
16
17 A Year, we were load of meeting central.
17
18 Q Do you normally create meeting minutes?
18
19 A Normally someone does.
19
20 Q Okay.
20
21 A We generally try and get other consultants. But
21
22 yeah, usually there's meeting minutes from meetings of this
22
23 nature.
23
24 Q Would it be every meeting?
24
25 A No, we had a lot of meetings with EDAW and there's
25
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FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
no minutes.
Q This was probably —
A Siam this was around the specific plan, since
it's EDAW writing these minutes, it was probably a specific
plan meeting.
Q Are all meetings usually held at GFA's offices?
A Generally just because we're centrally located.
There are meetings, sometimes they have been at the site
with people. Various issues. In general, we have the
meetings at our once.
Q I'd like to just take a quick look at this.
A Go ahead.
Q Would city officials sometimes come to these
meetings? People from the City of Huntington Beach?
A Not that I'm aware of on this project. It does
happen. EDAW's probably pretty good at documenting who was
there.
Q They documented the attendees, but on page three
it just says project team.
A Right, this is the team.
Q So the City of Huntington Beach is considered —
A Part of the team?
Q Yeah. They just put it in there?
A They just did it that way. Remember EDAW has been.
the City's EIR — EIS consultant for many times.
95
Q They11 just include them?
A I think it's because of their relationship with
the city. We don't actually particularly care for them as
a consultant, but that's a different issue. But they do do
99 percent of the City's work.
Q Who pays for — do you know who pays for EDAW? Is
it the City or would Ezralow pay for that?
A The way it typically works, and I don't know how
it works in this one, but typically the applicant has to
pay, but the City contracts with. That's kind of how it
works. In other words, the intent is to get an unbiased
opinion, but the City doesn't want to incur the fees,
because it's really not the City's project Typically they
contract We did another project in the City of Huntington
Beach, and it was just like that You also have a EIR
consultanL They contract with the City and oar client
paid the City the fee.
Q But you don't know how —
A I don't know in this particular deal. Scott
really played the — Scott Dinovitz played the key person
in this project as far as dealing with this stuff.
Q Basically Scott Dinovitz is the liaison, I guess,
between Ezralow and the City and EDAW. That has been his
function?
A Correct. Kind of leading the charge on the
96-
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9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
25
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
entitlement&
Q The entitlements? What's the definition?
A I'll define that to a second. He was leading the
charge on the specific plan. Entitlement is a term we use
for all these discretionary permits and approvals. So when
you receive your entitlement, it means you're entitled to
build a project.
Now, you still have to go through building
permits. There's the nondiscretionary permits. There's a
code, there's a law. You comply, they have to issue the
permit.
Q Like fire stuff?
A Right. But discretionary are the CUPS,
conditional use permits, things which Planning and —
Planning, City Council, whatever can have discretion to
approve or disallow your project
Q Now, on this project is there going to be — there
has to be CUPS for this project?
A I believe that's the case. That has been aw
issue. For a while, we weren't going to have one. We're
just — you can do it, but the law allows you to do
everything in a specific plan. If you want to be so
specific that you don't have to do a conditional CUP.
Q It becomes a CUP?
A Basically. I think we wrestled with the way. And
97
we wanted to get a specific plan approved quicker, sooner
than later. And so, therefore, it was advantageous to
break out the CUP requirements into a separate CUP
process.
Q I see.
A I currently don't know where the thinking is.
Actually, Scott has really been that charge. We
really have been playing a support role to that Like I
said, Hey, I need this document. I need this plan. I need
this document. He has all the contact with the City. But
those are the things that go on.
Q Because SP-13 includes three, actually, conceptual
plans of which two are 42 and 41. This would be, in your
opinion, probably insufficient to be used as a CUP?
A Yeah, typically. A CUP is typically a much more
detailed — that is also — CUP guidelines are regulated on
a city -by -city basis. So the City will say, Hey, for a
conditional use permit, we want to see these items in this
detail Some cities will be fine. That's what I'm trying
to say—
Q In your experience, what is Huntington Beach?
A I would be surprised they would be fine. They are
pretty detail -oriented.
Q I'd like to turn to Exhibit 66. The issues
discussed. It says the team was directed to proceed with
98
1 the December 1 plan. This specific plan?
2 A Uh-huh.
3 Q One. Who gave the direction? Who do you think
4 would give that direction?
5 A I would say probably Scott.
6 Q Scott Dinovitz?
7 A Yeah.
8 Q On behalf of Ezralow?
9 A Right. Well, I don't know that. I would just say
10 Scott gave the directive. I'm not going to put words in
11 his mouth either. But just because, like we were saying,
12 he's taking the lead charge on a specific plan. Everyone
13 else is a consultant. And someone's got to direct him. He
14 was playing the director, I assume.
15 Q Do you know the name of Scott Dinovitz's company?
16 A I think we come across a transmittal with the
17 corrected stuff later on.
18 Q Is his father Larry Dinovitz part of that company?
19 A Yes.
20 Q Is it separate?
21 A Partof.
22 Q Scott DinovitzW
23 A Correct, they're all one.
24 Q Now, also —
25 MR. WATSON: You weren't at this meeting, right?
99
1 THE WITNESS: No, I was not.
2 BY MR. COHEN:
3 Q Were you — was this reported to you at all by
4 Robert Bucci?
5 A That we had a meeting?
6 Q Yes.
7 A Yes.
8 Q And he told you what would happen?
9 A Right. Kind of went over the highlights and
10 here's what we need to do and who's doing what and stuff
11 like that.
12 Q Okay. And it mentions here the CUP will include
13 the alternative plans with different assumptions from
14 Montgomery Ward. First, what do they mean by the CUP?
15 A Conditional Use Permit.
16 Q But has a CUP actually been —
17 A Generated.
18 Q Yeah, been generated?
19 A No, that's. why I'm hesitant, because I don't
20 know. And we might have gone in the direction of not do
21 the CUP and do it all in a specific plan. That's something
22 between the applicant and City. They decide how we were
23 going to process this thing that I don't know.
24 Q Do you think that might be being discussed in the
25 OPA process?
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t
2 Q Owner Participation Agreement.
2
3 A I don't thing. It shouldn't be. Because those
3
4 are separate processes.
4
5 Q Now, I can't — do you have the three alternative
5
6 plans? Does that refer to 42, 41 --
6
7 MR. COHEN: And I will actually mark for identification
7
8 as Exhibit 67 a site plan that's entitled again "'Me
8
9 Crossings at Huntington Beach." But this time it includes
9
10 a big "Wards" name in their existing box, I guess, with
t0
11 their automotive at the end.
11
12 (Whereupon Plaintiffs Exhibit 67 was marked for
12
13 identification.)
13
14 THE WITNESS: Right. I would suspect these would be
14
15 the three alternatives.
15
16 MR. COHEN: Well —
16
17 THE WITNESS: I'm hypothetilyang (sic).
17
18 MR. WATSON: I was going to say there's no date on 67
18
19 or 41.
19
20 BY MR. COHEN:
20
21 Q I was going to ask do you know when 67 was created
21
22 or prepared?
22
23 A I do not
23
24 Q Do you know — were you involved in the
24
25 preparation of this?
25
101
1
A Yeah, in terms of looking at it. You know, like,
1
2
hey, yeah; I think that will work or we -- the thing was we
2
3
had an issue with trucks back here and the parking deck
3
4
and, you know, this is their existing footprint, so this
4
5
was "leave them as is," including their tim and battery
5
6
installation deal.
6
7
I mean I am not involved on the daily
7
8
modifications I'm involved more on a, hey, we were
8
9
thinking about -- you know, like, if they're going to
9
10
change a user or a footprint of one of these small
10
11
retailers, no, I'm not going to be involved.
11
12
If they're going to say Montgomery Ward is going
12
13
to stay as is versus a new plan, yeah, I'm going to be
13
14
involved, to give you a sense of the level.
14
15
Q So you were — so you would then have been
15
16
involved in the creation of Exhibit 67?
16
17
A In direction, yeah.
17
18
Q Do you remember.— do you have some sort of
18
19
recollection as to when you first saw 67 --
19
20
A I don't
20
21
Q -- roughly? I don't want you to guess.
21
22
A No. I mean it's going to be somewhere in January
22
23
or February or December.
23
24
Q January, February, December 2000?
24
25
A This past December.
25
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
Q Oh, December 199, then January 2000?
A Might have been a lot earlier.
Q When you say "earlier," you mean —
A It could have been November, October.
Q So earlier in '99?
A Right
Q It could be older?
A Right
Q But roughly, how long do you think that this
Exhibit 67 has been in existence? Six months? eight
months?
A Six to eight months. How about that? That's my
best guess
Q You don't think it was created in April or -
A Not that I'm aware of
Q April of 2000?
A Not that I'm aware o4 no, because I know we
worked with Wards with this little dinky thing here when
they were involved.
Q What is this?
A See, this is their existing garden center which
they're not using. So this was like some sort of entry
element we were discussing with them. We were going to do
the elevations with them. What do we do with that? And.
you know, chances are it's probably fairly old, bemuse I
103
think the redoing of building Wards a new building came
after dealing with them on keeping the existing one.
Q I see.
A Because the existing one was giving as grief.
What are you going to do with this? We have some track
problems back here. That's when I heard Wards say, hey, if
we need to build a new building and we can put the theater
over and stuff, that's fine with as too. We don't have a
problem with that
But I suspect this is actually one of the first
ones where we include Wards.
Q Do you have any subsequent ones that includes
Wards, that specifically includes Wards?
A In an as -in condition?
Q Reconfigured.
A We've always looked at these.
Q As reconfigured?
A Yeah. At that time we were just talking about a
box.
Q The facade which goes around this —
A Correct.
Q -- and it would look like individual buildings?
A That's an area where we had a disagreement Their
architect put the basic big box which didn't fit with the
individual building issue. That was also a point we got to
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1 kind of a stalemate in desip. We're going to upscale. We I 1
2 get the devadoa, like, well, you're here and we're here.
2
3 Q Right. Where are you at this point?
3
4 A Right now, I mean again communication has stopped.
4
5 Q So the total — what's the estimated square
5
6 footage of the project?
6
7 A I think right now just in that 900,000.
7
8 Q 900,000?
8
9 A Right. But we are, as indicated here, we
9
10 proceeded to get the — we want to get the entitlement for
10
11 a million, one.
11
12 Q I see.
12
13 A Because if you're going through the process of
13
14 approvals, you want to do it at once. You kind of over
14
15 estimate, and you know we have a plan that shows that
15
16 million, one. And that's like building over everything
16
17 again. You can — again, you can always build more above
17
18 it and stufE
18
19 Q Do you have any three-story designs right now?
19
20 A As I was saying, on the million one, we had
20
21 indicated there would be — the million one would go up,
21
22 not out.
22
23 Q I understand. What's the likelihood of a million
23
24 one?
24
25 A Unlikely.
25
105
1 Q What's the likelihood of having three-story, you
1
2 know, having at least some portions of it being three
2
3 stories?
3
4 A Depends where it's at. The theater, this, what
4
5 was it? Sorry. I can do this right here.
5
6 Q We're looking at 42.
6
7 A Area B of 42. That structure in itself is a
7
8 fairly large structure, because you've got a single level
8
9 and a theater which you're going to do stadium seating.
9
10 It's going to be 20,30 feet, too. So this is a large —
10
11 but this is our focal point Everything else has to be
11
12 lower. That's the whole — we're putting — I don't know
12
13 if it's anywhere in these plans, but we're talking about
13
14 putting a big glass dome.
14
15 Q It's shown. On a capitol -looking thing?
15
16 A Yeah, that's our focus. —
16
17 Q I think this is it on Exhibit 53. Is that it?
17
18 A Yes, there you go. That's a big, glass dome that
18
19 sits right over that vertical transportation escalator.
19
20 This box which is, you know, yeah, that's probably a
20
21 three-story structure in anyone's mind, but it's not It's
21
22 two, but the theaters themselves are double height, because
22
23 it's the stadium seating.
23
24 Q I understand..
24
25 A Okay. But this is the focal point, so everything
25
106
else has to be less, because you're trying to draw your eye
to this.
Q Meaning?
A Mass. This main mass.
Q Section A, Burlington structure, I believe, is
three stories?
A That's correct:
Q So?
A That's a conflict.
Q That's a conflict. Preferably they would like to
have the theater being looming over?
A Predominant, yeah.
Q What's the feasibility of just cutting off the
third story like design -wise or construction -wise?
MR. WATSON: Tldrd story of the Burlington?
MR. COHEN: Of the Burlington.
THE WITNESS: Well, again, anything can be done. But
that building, part of the problem there is the codes. It
would be much more economical to just demolish the whole
thing and build a two-story building than to cut off the
top.
BY MR. COHEN:
Q Did that building require code upgrades?
A Oh, I'm sure it does.
Q If this project goes forward, it's going to =.
107
require --
A If this building stays —
Q Yes.
A -- it will definitely require. Ailthese
buildings are way outdated.
Q You don't know that for sure, but you're assuming
that?
A I am making an assumption. And definitely, if you
were to cat a story off of it —
Q That would affect the structural integrity of the
building?
A While the Code requires if you touch more than 25
percent of the building, you would have to bring it to
code.
Q That's my next question. The Burlington, the
Burlington structure, would that be considered a separate
structure, meaning let's say --
A It can be or — '
Q -- that would be up to the City?
A City determination, that's correct.
Q BuY--
A If you ask me, I believe today it's somewhat
integral to that mall, but it's probably the freestanding
structure.
Q So it's possible that although all the surrounding
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A RIOL
Q The Burlington structure being a free standing
structure may not require upgrades or the City may -- they
may not be forced to make code upgrades, because it's just
a freestanding structure; is that correct?
A Your assumption is correct; however, that city, I
don't think you'd get that approved. Because here, if you
put yourself in their shoes, you got a brand new center,
and they're going to have an outdated, not -meeting -code
building in the middle of it? I don't see that happening.
Q Okay.
A I'm just expressing my 12 years of building. If I
was a building official, I would not accept it. And I
would enforce that by making the interpretation that the
whole thing is 25 percent, and make them do that.
Q Have there been any discussions regarding that
with the City?
A No. We don't know what we're keeping and what
we're demo-ing.
Q Okay. Let's move on to -- it looks like this is
just another copy.
A Probably. Yeah. This is just another copy.
Yeah.
25 Q So well include the second copy just as part of
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Exhibit 66.
MR. COHEN: I'd like to mark for identification Exhibit
68. A letter from EDAW dated December 7, '99, to
Scott Dinovitz.
(Whereupon Plaintiffs Exhibit 68 was marked for
identification.)
THE WITNESS: This is a — to Scott from Jayna Morgan
at EDAW. She is requesting a list of items that she needs
to complete the specific plan. So again, Scott's playing
the central point person.
BY MR. COHEN:
Q And this was basically correspondence regarding
the preparation of the specific plan?
A Correct
Q I guess they're calling it the -CUP, though?
A .That's what I'm thinking.
Q Not CUP.
A Right.
MR. COHEN: Well move on. We'll mark for
identification as Exhibit 69.
(Whereupon Plaintiffs Exhibit 69 was marked for
identification.)
BY MR. COHEN:
Q Is this the same thing?
A No, this is a letter -- this is from the old
110
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BURLINGTON V. HUNTINGTON CENTER
1 project
2 Q Okay.
3 A This is from — dated December 7,1998, to Tom
4 Jayred at Macerich from Jayua.
5 Q What would GFA take out of this letter?
6 A I don't know why we have it. No, I don't know.
7 MR. COHEN: I'd like to mark for identification as
8 Exhibit 70 a letter of transmittal dated December 9, 1999.
9 (Whereupon Plaintiffs Exhibit 70 was marked for
10 identification.)
11 BY MR. COHEN:
12 Q What is this?
13 A This is a transmittal. We were sending a site
14 plan to Bryan Ezralow of Huntington Center.
15 Q And you don't at this point know what revised plan
16 he's talking about?
17 A We don't know.
18 Q This is the same thing.
19 A No, it's the same day, but it looks like we're
20 sending one to Doug and one to Bryan.
21 MR. COHEN: I'd like to mark as 71 another transmittal
22 dated December 9, 1999.
23 (Whereupon Plaintiffs Exhibit 71 was marked for
24 identification.)
25 /
111
1 BY MR. COHEN:
2 Q This time the revised site plan is being sent to
3 Doug Gray?
4 A Correct. There's another riser we were working
5 with.
6 MR. COHEN: I'd like to mark for identification as
7 Exhibit 72 a letter of transmittal dated December 10, 1999,
8 to Bryan Ezralow.
9 (Whereupon Plaintiffs Exhibit 72 was marked for
10 identification.)
11 BY MR. COHEN:
12 Q What is this?
13 A This appears we're sending him a color plot which
14 could either be a site plan or an elevation. Chances are
15 it was probably another elevation, but could be another one
16 of the Bed, Bath and Beyond.
17 Q What s the difference between a site plan and
18 elevation?
19 A Site plan is the view looking down on the center,
20 whereas, the elevation is the view looking at the facade of
21 the building.
22 Q I see. So you would be more interested --
23 A I generally think it would be the look, but it
24 could have been the site plan.
25 Q Where is Bed, Bath and Beyond?
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A They have come and gone.
Q They're gone?
A They have come and gone. They may be back.
Q Where were they going to be?
A We were — they were talking about patting them —
Q Let's look at Exhibit 42.
A Okay.
Q And well mark it as another section C, maybe?
A C.
MR. WATSON: We've got C, don't we?
MR. COHEN: No, that's on 41.
MR. WATSON: Okay.
THE WITNESS: 42. We were contemplating putting them
in the C place, which is at the comer of Edinger and
Beach. And actually, on Exhibit 41, the other location
would have been next -door to Mervyn's.
BY MR. COHEN:
Q Okay. Let's mark that as exhibit — it's Exhibit
B you're pointing at, and well mark it as section D.
A We do have a 35,000 square -foot user we can put
21 there.
22 Q And I did have a question on that. Why did this
23 change from 41 and 42? It seems like you had -- I don't
24 know how many square feet. You just said section D. But
25 on 42 you kind of broke it up into little boxes. Is there
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any particular reason why?
A Well, you need -- one needs to have all these
little shops. And with the Burlington building there, that
prohibited putting all those shops there. So we had to put
them somewhere. So we led them up to the Mervyn's.
Q What shops would be moved?
A All these little, tiny buildings.
Q Okay. I see.
A Because that's that courtyard.
Q You're pointing now to section C of 41. Now, in
42 -- I guess let's mark this section. Well, is this going
to be on the second floor?
A No, that would —
Q Section B?
A B is.
Q B is a theater. _ -
A RighL
Q I guess these little shops are underneath B?
A Correct:
Q And that would be at --
A Grade.
Q -- grade level?
A Right.
Q I see. And it wouldn't be open-air?
A Yes, it would be. The dash line of B comes right
114
1 to here. This would be open to the sky.
2 Q Okay. it is part of the open-air --
3 A That's the problem with the Burlington building.
4 Q What is? Spell it out.
5 A It's in a bad place. You really don't want to
6 have these shops going down to Mervyn's, and Mervyn's
7 doesn't need an access point. So this is an ideal place
8 for some other larger building, other larger tenant like
9 we're talking about. So you kind of back yourself into
10 this. Well, this is a perfect place to do the courtyard
11 and all the little shops for eating at the movies and
12 stuff. Their building's right there.
13 Q Okay. Well move on to -- those are the issues,
14 right?
15 A Yeah.
16 MR. COHEN: Well mark for identification as Exhibit
17 73 a letter of transmittal dated December 10, 1999.
18 (Whereupon Plaintiff's Exhibit 73 was marked for
19 identification.)
20 THE WITNESS: This is a -- we are transmitting
21 information, basically a site plan, to Robert Englekirk.
22 They are structural engineers. So we are starting to -- we
23 note structural engineering is a big issue because of the
24 piles and all that stuff, so we are starting to get them
25 involved at this point in December.
115
1 BY MR. COHEN:
2 Q How do they differ from Larry Dinovitz?
3 A Larry Dinovitz is a consultant with basically no
4 professional education or licensing or at least
5 construction management like a superintendent or a
6 constractioa project manager that, in the field, you could
7 be one.
8 Q Okay. Not a good one.
9 A Well, you'd be surprised. Structural engineers,
10 you know, they are licensed professionals, practicing _
11 engineering.
12 Q Would Larry Dinovitz work with these people?
13 A Yes. They would work with them in terms of can we
14 do this, that and the other? And they're going to say yes,
15 no, or maybe.
16 At this point in time, we were demolishing
17 everything except for Mervyn's.
18 Q Why were you guys going to keep -- why are you
19 guys going to keep Mervyn's?
20 A Well, It's a good tenant in terms of — again, one
21 thing you look at is what is the goods? What is — you
22 know, soft goods makes sense. Mervyn's is a good deal.
23 I think we would jest as soon get rid of them
24 personally, but that -- to keep it, that's a Doug Gray. We .
25 want to keep Mervyn's as a tenant. They're a good tenant
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I to have, their credit, everything.
1
2 Q Doug Gray sort of made a decision to keep them?
2
3 A Right I mean, to be honest, as opposed to
3
4 Montgomery Ward or Burlington Coat, they really don't fit
4
5 the type of goods and high -end image we're trying to make
5
6 the center. They're more on a low -end image.
6
7 Q How do you know that? What makes you come to say
7
8 that?
8
9 A I guess that's the 12 years in the business
9
10 experience. I've done shopping centers. Done them with
10
11 Burlington Coat at other centers. And Montgomery Ward. I
11
12 mean, you look at the clientele that goes to them. Kind of
12
13 like comparing a Walmart to a Target They have different
13
14 clientele. So you look at the goods draw a certain type of
14
15 clean tell. Mervyn's draws differently than Montgomery
15
16 Ward and Burlington Coat
16
17 Q in your opinion, do you think Burlington Coat
17
18 draws a higher -income clientele than does Mont - when you
18
19 say "clientele," are you talking income?
19
20 A Customers.
20
21 Q Are you talking like income base?
21
22 A Yeah, I guess that's probably what it boils -
22
23 let's keep it to the Walmart Target conversation. That way
23
24 we don't offend anyone.
24
25 Q We're offending people right now.
25
117
1 A Yeah, you get a different - yeah, you get a
1
2 different economic base set of people going to these
2
3 different places. You know, my personal opinion, I don't
3
4 think there's much difference between Burlington and
4
5 Montgomery Ward in that clientele, but there is a jump to
5
6 the people that go to Mervyn's.
6
7 Q And you say this just from your personal
7
8 experience as being a shopper?
8
9 A As being a shopper and also as an architect
9
10 developing centers and seeing how certain centers are
10
11 successful and certainly aren't When the mix is not
11
12 right, the center is not successful, and that's kind of
12
13 what drives this issue of what the mix is, mix of users.
13
14 MR. CORN: We71 mark as Exhibit 74 another letter of
14
15 transmittal dated December 10, 1999-=-
15
16 (Whereupon Plaintiffs Exhibit 74 was marked for
16
17 identification.)
17
18 BY MR. COHEN:
18
19 Q What is this?
19
20 A This is a transmittal going to Ralph Czitrom, I
20
21 guess, of Bed, Bath and Beyond. And we're sending them the
21
22 plot of the - color plot of Bed, Bath and Beyond in
22
23 Monterey Park where we were working with them. It's a
23
24 separate center. And one in Huntington here.
24
25 Q Do you know why they backed out or why they're on
25
118
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
the back burner?
A No, I don't. I don't. My guess would be
economics. But -
Q Cost per square footage?
A Yeah. In other words, we want the rent for a
certain amount. They wanted to pay less. This is all big
game. You know, you go out, you get as many users as you
can, and you see who's going to pay the rent, who's not.
You play hard ball until you till it up or not.
Q Does GFA, are they involved in determining what
the retail square footage rate should be?
A No. That Is totally - that one I stay out of.
Q Who?
A That would be Doug and Paul, the owners.
Q But I guess would you tell them how much it costs
per square foot to build? And do they base -
A Right We do give input on construction costs.
Q From that they might determine how?
A I think it's a factor. I mean it's like your
house. It doesn't cost nearly what it's worth. You're
paying for these intangibles. Market value is next I
guess that's what -
Q What's the estimated cost of construction for
this?
A God, I think we were - I thought we were in the
119
50 to 70 million mark, but I have not kept up with that
That, you know, just like the specific plan in Scottsdale,
we left the costing to Larry, Larry Dinovitz. So he's
the - you know. I just - I either hear, yeah, or in
budget, we can do it or not.
Q But you come up -- GFA comes up with the
architectural design thing, and then Larry then would take
that design to various -
A Contractors.
Q -- contractors, then they place a bid on it?
A Get some pricing on it This is a unique center.
If we were doing a shopping center anywhere, I could spit
off what it should cost. But this is unique in all of this
detailing. It's substantially more than I know. And two
stories, a different issue. All these issues, the piling,
existing structure. You can't apply your rule of thumb
costing to a project of this.
Q X dollars per square foot?
A Right.
Q Okay. You've got to talk to some Vegas
contractors.
A Actually, we went over to Vegas. We did that
Q I mean it's like Paris Hotel or something?
A A lot of these exterior things are just like Vegas
stub As much as I'd like to put real stone in here,
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that's not going to happen.
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Q With concrete stamping and everything it works.
2
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A Year.
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Q Okay. Exhibit 74.
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A This was going to Bed, Bath and Beyond.
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Q Is this attachment to it the Huntington Center?
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A Yeah, I bet Yeah, this is. That's — again,
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we'll work on a corner. So here that's probably Bed, Bath
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tight there.
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Q Okay. Originally, you said that on Exhibit 41 you
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thought they might be D on Exhibit 41?
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A I said I think we were —
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Q Oh, contemplating these two areas?
13
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A Right See on Exhibit 42.
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Q That's right.
15
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MR. COHEN: Well mark as Exhibit 75.
16
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(Whereupon Plaintiffs Exhibit 75 was marked for
17
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identification.) .
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THE WITNESS: Actually, this is that fax transmittal to
19
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this guy, Mark Picheli, which that was the — what do you
20
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call it? Saying that he got it. This is the original we
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sent. And that was the confirmation fax. We still don't
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know what it is.
23
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BY MR. COHEN:
24
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Q Maybe that's in the back. Is he part of Linscott
25
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1 Law & Green (sic)?
1
2 A Does it say how many pages? Four. No, that's
2
3 just a one pager. I would suspect not
3
4 MR. COHEN: Okay. Then well mark as Exhibit 76 a
4
5 letter of transmittal from Linscott Law and Green (sick
5
'6 dated December 15, '99.
6
7 (Whereupon Plaintiff's Exhibit 76 was marked for
7
8 identification.)
8
9 BY MR. COHEN:
9
10 Q What is this?
10
11 A This is their letter of transmittal to
11
12 Scott Dinovitz, sending a copy of the Edinger Avenue
12
13 Precise Plan. And he sent as two copies. That's a weird
13
14 way to do IL
14
15 Anyway, we got a copy because we needed to see the
15
16 precise piaa for Edinger. Thin is — a precise plan for
16
17 Edinger has been in place for a while now as part of the
17
18 original plans with Macerich which is a widening of
18
19 Edinger, getting a bus stop, all this. A separate
19
20 document, precise plan, for this scope of work from Gothard
20
21 to Beach.
21
22 Q I see. Is that still going to happen?
22
23 A Yes, it's a condition of this project
23
24 Q I see. It's Ezralow's putting a condition on it?
24
25 A No, the City has pat implementation of precise
25
122
Plan on this piece of property regardless of owner.
Q I see.
A Whoever comes in has to implement that
(Recess taken.)
MR. COHEN: Let's go back on the record.
BY MR. COHEN:
Q Okay. We discussed Linscott and we discussed what
the precise plan was with the Edinger Avenue.
A Correct
Q I don't know what your answer -- yeah, who would
pay for the widening of that street?
A The — whatever entity redevelops this mail.
Q The City is not necessarily going to pay for it?
A (No audible response.)
MR. WATSON: I think I can guaranty you they're not
going to pay.
THE WITNESS: No, my understanding was that was worked
out during the Macerich proposed project, the whole precise
planning. 'Me way the City works nowadays, they do all
these decisions for all these roads. And when owners come
in and do something, property abutting these roads, they
say, "Here you go.'
MR. COHEN: Well mark as Exhibit 77 another letter of
transmittal, December 15, 1999.
123
(Whereupon Plaintiffs Exhibit 77 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A This is to Ron Altoon of Altoon and Porter.
They're architects up here in L.A. And our client was
looking to hire the architects or is investigating, you
know, should we use someone else or GFA. We were sending
them the site plan and elevations we had for them to take a
look at
Q Would they be instead of you?
A Yeah.
Q Okay.
A We're all in the same boat
Q Now, Altoon and Porter, don't they do mostly like
renovations of historical buildings?
A No, they build new stuff, too. Just like
everything else, this Is per the request of Gary Freedman
who works for Ezralow.
Q Gary Freedman is part of Ezralow?
A Yes.
MR. COHEN. I'd like to mark as Exhibit 78 an invoice
from Sterling Art.
(Whereupon Plaintiffs Exhibit 78 was marked for
identification.).
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THE WITNESS: This looks like we bought a book.
1
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American Shopping Center book. Probably used it for this
2
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project. This is the invoice for it. This is normally not
3
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in the files, but you get to see it, I guess.
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BY MR. COHEN:
5
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Q This is just some research materials?
6
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A Right. Help the design.
7
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MR. COHEN: Mark for identification as Exhibit 79 fax
8
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transmittal dated January 3, 2000.
9
10
(Whereupon Plaintiffs Exhibit 79 was marked for
10
11
identification.)
11,
12
BY MR. COHEN:
12
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Q What is this?
13
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A This is — we're sending to Mr. Bryan Ezralow a
14
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sketch of the parking structure behind the Wards buildielp
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And I guess it says Doug's going to bring a hill size.
16
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He's going to meet with them tomorrow. Whatever that date
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was, we were just faxing or probably faxed, I suspect
18
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Q How many stories is the parking structure going to
19
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be?
20
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A That's unclear. We had an issue with the
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clearance, because there is — what's the best one to look
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at? I'm going to go with this one.
23
24
Q That's Exhibit 67?
24
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A On Exhibit 67, along Center Avenue, there is a
25
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1 California Edison easement There's two towers there. Two I 1
2
towers down here. We wanted to do three levels, but the
2
3
third level would interfere with their clearance, so we had
3
4
to cut back to one or two levels. So depending on how much
4
5
parking we need, depends on — and that clearance we can
5
6
get I think we were up to about four levels, but a split,
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7
you know, two levels and then roar.
7
8
Q I see. Where are the drive-thrus going to be or
8
9
the proposed drive-thru?
9
10
A A proposed drive-thru right here at Center Avenue
10
11
and —
11
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Q There's a number by it, 23?
12
13
A Yeah, that's the number of spaces. Right next to
13
14
the boxes with the Xs in it
14
15
Q Are those the power lines? --
15
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A Those are the power lines Those are the big —
16
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Q Ne been there.
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A That was the drive-thru. At one point in time we
18
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contemplated a drive•thru here, but that has gone away.
19
20
That's to be a restaurant And we may — may be one over
20
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here. We're not sure.
21
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Q That's by Edinger Avenue?
22
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A Edinger Avenue.
23
24-
Q Are there structures existing now by Edinger
24
25
Avenue?
25
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FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
A The only one that exists is the B of A building
here.
MR. COHEN: I'd like to mark as Exhibit 80 a fax
transmittal dated January 3, 2000.
(Whereupon Plaintiff's Exhibit 80 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A This is to Bryan Ezralow again. We're sending
Bryan a sketch of the parking structure at the rear of the
Great Indoors building.
Q What is the Great Indoors building?
A Great Indoors building was another user we
contemplated in patting in either above Wards or in lieu of
Wards. So it was a large boa back here.
Q Is that like a Camping World type of --
A No, Great Indoors is a new concept from Sears.
And it's — are you familiar with the Home Depot Expo at
all? Do you know that — it's basically a design center
type of thing where you walk around and see vignettes of
kitchen and bathrooms.
Q Ne been to Home Depot, if that's what you're
talking about.
A No, it's not a Home Depot It's an up -scale —
it's like a Design Center. There's ready no merchandise
127
for sale. Everything is special order. I'm sure they have
drains or whatever. And the reason Great Indoors is
interested is because right down the road there is a Home
Depot Expo which is their competitor. So people will go
back and forth.
MR. COHEN: I'd like to mark as Exhibit 81. This is
paper clipped already.
(Whereupon Plaintiffs Exhibit 81 was marked for
identification.)
BY MR. COHEN:
Q Do you know who paper clipped it?
A No.
Q A fax transmittal January 3, 2000. And it is
one -- three pages. What is this?
A This looks like a confirmation of the fax of
the — the previous ones we talked about In addition, it
looks like we actually have perhaps what we faxed Wait a
second
Q Should that not have been clipped?
A Wait This looks again to repeat January 3. Then
we have a hand sketch. This would have been — whether
it's the new Wards or the Great Indoors is immaterial.
It's a new building with a parking structure.
At this point, we were contemplating the theater
to be over — because I can tell by the stairs and
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1 everything. So at this point we were contemplating a
2 theater to be over some large box, whether it was Wards or
3 Great tadoom
4 Q These are stairs?
5 A These are stairs. That's that vertical to get up
6 to the theater Level.
7 Q I see. Stairs and an -elevator, I guess?
8 A Right. Actually, more likely escalator, elevator
9 and stairs, because it's a good distance. Have someone to
10 walk that would probably be tough.
11 Q Yeah.
12 MR. COHEN: I'd like to mark as Exhibit 82 a letter of
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transmittal dated January 4, 2000.
(Whereupon Plaintiffs Exhibit 82 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A This is going to Larry DinovitL It looks like
we're transmitting to him a colored elevation of this
center. I would suspect that's for him to start getting on
the pricing issue again.
Q Contractors — oh, I guess they would want to see
what the facade looks like?
A Obviously, it was a difference in price, depending
what it looks like.
129
Q Who generated the artistic renderings here?
A That was done by Richard Sawyer.
Q Tom Sawyer?
A Right. He's generated all the graphics in here.
All the building graphics I say.
Q That's 53 and 52 --
A Correct.
Q -- of the exhibits?
MR. COHEN: I'd like to mark as Exhibit 83 a
transmittal dated January 5, 2000.
(Whereupon Plaintiffs Exhibit 83 was marked for
identification.)
BY MR. COHEN:
Q What's this?
A This is going to Jeff Moore of CB/Richard Ellis.
Looks like we're transmitting a Ate- plan 0041. I suspect
it's -- they're representing some user some way and we're
sending them a site plan.
MR. COHEN: Exhibit.84. Letter of transmittal dated
January 6, 2000. Mr. Brent Harell of CB/Ellis.
(Whereupon Plaintiffs Exhibit 84 was marked for
identification.)
BY MR. COHEN:
Q Another?
A Looks like it's a different office, because it
130
1 says request of Jeff Moore and Paul, sending them the same
2 site plan.
3 Q Offhand, do you know what site plan 0041 is?
4 A No, I don't. Hopefully we can figure that out.
5 Q But now this is already getting numbered?
6 A Beginning of this — December we started to get
7 serious on the specific plan and started to get serious
8 about tenants, so there was some sort of concept of
9 numbering.
10 MR. COHEN: Mark as Exhibit 85 another letter of
11 transmittal. January 6, 2000, to Rick Shoemaker of
12 Sears -Roebuck.
13 (Whereupon Plaintiff's Exhibit 85 was marked for
14 identification.)
15 BY MR. COHEN:
16 Q lust another sending out of the site plan?
17 A On the Great Indoors potential.
18 Q Are they going to — what happened with them?
19 A They will still be interested as far as I know.
20 Q Where, if Montgomery Ward stays, where would
21 they —
22 A In the current plan,•which would be — 41. We
23 could double — we could double deck that building. We
24 could do Great Indoors and Montgomery's doubled right
25 here. We really have anticipated it was one or the other:
131
1 Because Montgomery Wards was -- this was their last
2 facility in the area. And again, we don't know why they
3 just don't call it good and go home, because their sales
4 are not very good in that store.
5 Apparently, what I've heard through the grapevine
6 is they don't want to give up that store for that reason,
7 it's their last beach house-
8 But you know, as you know, in development we do
9 plans. All the time this goes on. Yeah, I own this land.
10 That doesn't matter. We'll draw a site plan and
11 negotiations start.
12 Q How many square feet, do you know -- do you know
13 how many square feet Great Indoors wants?
14 A 130_
15 Q 130,000?
16 A Yeah, I think you see it on here. 120 here.
17 Sorry.
18 Q 120?
19 A Right. I think Montgomery's was right up there,
20 too, in the new building scenario. 100,1 think.
21 Q Do you know how many square feet the Burlington
22 building is?
23 A Not off the top of my head. I'm sure it's in
24 those calculations.
25 Q Per --
132
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1 MR. WATSON: I can'tread it.
1
2 MR. COHEN: Plus the extra third story. It doesn't
2
3 matter.
3
4 THE WITNESS: By the way, on this plan we had 140 back
4
5 here —
5
6 BY MR. COHEN:
6
7 Q Oh?
7
8 A -- square footage.
8
9 Q Isn't that also --
9
10 A This is 120.
10
11 Q Oh.
11
12 A This boa, this.
12
13 MR. WATSON: You can see 41 and 42. There's only this
13
14 one. 41 is two parking lots to the left.
14
15 THE WITNESS: In general, the big thing has been what
15
16 we're going to do on this end of the site. And so for the
16
17 record, because I get to say this finally, we don't
17
18 recommend to do anything. We recommend that it be the
18
19 continuation of all this small stuff with the theaters back
19
20 here and get rid of any big box all together.
20
21 We personally don't think, as architects, that a
21
22 large user should be on the site. But that's where clients
22
23 have -- get to do what they want to do.
23
24 BY MR. COHEN:
24
25 Q Okay.
25
133
1 A I mean I was hoping to get like — I really was
1
2 pushing for, like, House of Blues. See, that's — we don't
2
3 need another retailer. We need another piece of
3
4 entertainment to pull, to really make this thing
4
5 successful.
5
6 Q Does GFA do any market, like, demographic surveys
6
7 or anything?
7
8 A No, that's not us.
8
9 Q Have there been my demographic --
9
10 A I don't know. I would suspect there might have
10
11 been.
11
12 Q What's the proper name?
12
13 A Demographers. And there's a lot of them, I would
13
14 suspect I don't know if they employed anyone or not.
14
15 Some of It now, with the internet, a -lot of the demographic
15
16 information, you can just look up.
16
17 Q Oh, really?
17
18 A Yeah.
18
19 MR. COHEN: Mark for identification Exhibit 86. Letter
19
20 of transmittal, January 7, 2000.
20
21 (Whereupon Plaintiffs Exhibit 86 was marked for
21
22 identification.)
22
23 THE WITNESS: This is going to Morley Construction
23
24 which is Benchmark Morley. This is a composite site plan
24
25 showing the existing building line versus the proposed site
25
134
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
plan.
And this is, again, based on costing issue of, you
know, how much of the existing slab can we save. We do
have to build new, demolish some. We're conforming to it
within 95 percentile.
So this was just something that again Larry
Dinovitz had requested us to send to Morley to look stuff
up, costing stuff.
BY MR. COHEN:
Q Again, would you know if it was 41 or 42?
A I would not know. I would say there was the site
plan "du jour" on January 27. That's how much these — if
that's an indication, It has that much change. Like maybe
not dramatically. Maybe five or ten major schemes. But
it's constantly every day Paul would call or Doug would
call, hey, we get another user. Do this, do that. It's
constantly in motion until this day, even; that's why we're
here.
Q Yeah.
MR. COHEN: Mark for identification as Exhibit 87
another letter of transmittal, January 10, 2000, to
James Rabe.
(Whereupon Plaintiffs Exhibit 87 was marked for
identification.)
135
BY MR. COHEN:
Q Do you know who that is?
A No. We mentioned that earlier.
We have Marl[ — sorry. Go ahead, introduce the
exhibit.
MR. COHEN: Mark for identification as Exhibit 88.
Mark Pickell.
(Whereupon Plaintiffs Exhibit 88 was marked for
identification.)
THE WITNESS: Who we now know is with Mount Holly
Partners. And we're sending a site plan to them.
BY MR. COHEN:
Q But you don't know anything?
A I still don't know who they are.
Q Okay. Is this the site plan that was sent over
to them?
A I would assume so. Actually, if you open this up,
they go together.
Q Uh-huh. Is this an older -- this is the
conceptual site plan No. 1, I guess?
A This is a really early scheme. This is a really
early scheme. This is our point in time we were --
actually haven't even come up with the street design yet
Q Uh-huh. Burlington is still gone though, right?
A Right Well, again, it's just in the way. At
136
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FRANK CODA, 07.27.OW
BURLINGTON V. HUNTINGTON CENTER
1 that particular dine we were contemplating a truck access
I
2 underground, because we had some bigger users in here. And
2
3 here'sthe second level that was sitting — you can see
3
4 that actual Hue that goes to there. See the second level?
4
5 Q That would maybe be the theater?
5
6 A Theater and then some — I'm looking for some
6
7 other — you kind of don't put — in general, you don't put
7
8 names on plans. It might end up in the wrong hands. If
8
9 you put a particular user —let's say you put Bed, Bath
9
10 and Beyond, and for some reason that plan gets to someone
10
11 that's not with Bed, Bath, but their competitor, so you —
11
12 you know, kind of standard of practice is not to put names
12
13 on.
13
14 Q I see. Sometimes you did?
14
15 A Some things.
15
16 Q But not for us. See? And you get in trouble.
16
17 A Exactly.
17
18 MR. COHEN: Mark for identification as 89. Letter of
18
19 transmittal dated January 12, 2000.
19
20 (Whereupon Plaintiffs Exhibit 89 was marked for
20
21 identification.)
21
22 THE WITNESS: Going to Larry Dinovitz. Most recent
22
23 site plan, along with color rendering. Probably keeping
23
24 him current, because one of our jobs is keep all the team
24
25 managers current, because it's a multi -level client.
25
137
1
You've got construction, real estate, various people.
1
2
Scott and his thing. We're working with Paul and Doug kind
2
3
of in the lead position in terms of the planning end.
3
4
Then, okay, here's what's going on, because they
4
5
don't talk to each other.
5
6
BY MR. COHEN:
6
7
Q The color renderings?
7
8
A That would have been of elevations, I'm sure.
8
9
Q That would have been of elevations? Okay. But
9
10
these are -- what's attached as 52 and 53, those are
10
11
paintings I saw?
11
12
A Exactly what they are.
12
13
Q That would be something different?
13
14
A They're more along these tines.
14
15
Q You're showing page 48 —
15
16
A Right -
16
17
Q- — of the SP-12?
17
18
A Correct. They're scaled colored drawings.
18
19
They're not like you said, paintings. They're all scaled
19
20
drawings..
20
21
Q "Mat's done on the computer?
21
22
A Yes. Now, these are actually Richard Sawyer's.
22
23
And we also have done our own, because again he's not
23
24
thinking architecture. He's thinking looks. So that's
24
25
kind of the difference. So we have a whole set of our own
25
138
staff like this. This actually may be an artist I'm not
sure. We have so many graphics on this project It's
voluminous.
Q But that's not here today?
A No, that's all in —
Q Okay.
MR. COHEN: Mark for identification as Exhibit 90.
(Whereupon Plaintiff's Exhibit 90 was marked for
identification.)
THE WITNESS: This is going to Michael Wintheiser.
He's at Swinerton & Walberg. That was the second name.
Remember the contraaor we were talking about?
MR. COHEN: Yes.
THE WITNESS: Swinerton & Walberg. And we're sending
him again kind of the same thing, current site plan and
typical elevations, typical building, to give him a sense
of what we're talking about.
MR. COHEN: Mark for identification Exhibit 91. Letter
of transmittal January 12, 2000.
(Whereupon Plaintiffs Exhibit 91 was marked for
identification.)
THE WITNESS: This is going to Norman — care to take a
shot at that?
MR. COHEN: No, I don4 know it.
THE WITNESS: He's with Wards. Looks like.we're
139
sending the most recent site plan on that day at the
request of Doug Gray.
MR. COHEN: Mark as Exhibit 92 a transmittal to
Loren Hohman of Montgomery Ward.
(Whereupon Plaintiffs Exhibit 92 was marked for
identification.)
BY MR. COHEN:
Q And I guess sending him the same thing?
A You got W
MR. COHEN: Mark as Exhibit 93.
(Whereupon Plaintiffs Exhibit 93 was marked for
identification.)
BY MR. COHEN:
Q Transmittal to Richard Sawyer?
A RighL
Q That's of the village strata you're calling it
now?
A RighL
Q Would that be for him to create those renderings?
A We were doing the site planning and he was doing
the pretty paintings.
Q Yeah.
MR. COHEN: Mark as Exhibit 94 another letter of
transmittal, January 14, 2000, to Neil Rosenfield, Blattis
Realty.
140
35 (Pages 137 to 140)
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(Whereupon Plaintiffs Exhibit 94 was marked for
identification.)
THE WITNESS: I suspect someone representing some
user. Could even be Sears. I mean unlikely, because we
dealt with Sears direct. But only reason I say that is
because Chicago. But I'm guessing at that.
MR. COHEN: Mark as Exhibit 95 a transmittal letter,
January 14, 2000, to Bryan Eualow.
(Whereupon Plaintiffs Exhibit 95 was marked for
identification.)
THE WITNESS: Which is of the village area, current
site plan.
MR. COHEN: Mark as Exhibit 96.
(Whereupon Plaintiffs Exhibit 96 was marked for
identification.)
THE WITNESS: This is a letter to Tom Jayred at
Macerich from the City. And I guess latest city comments
on the draft specific plan submitted December 11, 1998.
Must be the old project.
BY MR. COHEN:
Q Uh-huh. What would you use this for, just to --
A You know, in general, I always like to get all the
information on previous projects, because it tends to give
you insight to what it might be. So I suspect as time went
on, we got pieces of information from -- as various things
1 came up. And, you know, you say, Ob, I got that in my
2 file. Send that over to us.
3 I'm trying to -- this is kind of an interesting
4 version. It does not contain City's complete
5 recommendation for an amortization schedule for
6 improvements.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
141
I'm not really sure what they were doing.
Amortization schedule for improvements to the
non -conforming structures such as Montgomery Wards, the
Tire, Labe and Battery facility, and the bank building.
Q I think they still have that problem. I think
they want to get rid of that.
A I thinks lot of these issues has been prior to
Ezralow and prior to everyone.
Q Yeah. Not the Burlington issue, though.
A No commerat
Q It's in our contract.
MR- CORN: Exhibit 97, a fax cover sheet from EDAW.
(Whereupon Plaintiffs Exhibit 97 was marked for
identification.)
BY MR. COHEN:
Q Can you give it some description?
A Dated 1/26/2000. And what have we got, this is
meeting minutes for the January 21st meeting.
Q Were you present?
142
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
1 A No, I wasn't. This was Fzralow Company,
2 Scott Dinovitz; City of Huntington Beach; and EDAW; and
3 John Veregge with GFA.
4 Q Let me take a quick look at this.
5 A Sure.
6 Q Do you know where this meeting took place?
7 A That, I don't know. Does it say? I would
8 suspect it's at the City.
9 Q Because they —
10 A They were there. City of Huntington Beach
11 generally won't come to anyone's offices. They're unique.
12 So apparently we're still talldng about specific plan and
13 CUP as of January.
14 Q 2000. What is this Jane James asked if a project
15 description has been prepared?
16 A Specific plan or CUP usually requires a verbal
17 description of the project This kind of overviews what
18 we're going to do.
19 Q Who prepares that?
20 A In this case, I think Scott and GFA worked
21 together to help prepare that It's probably this section
22 right here.
23 Q . You're looking at SP-12?
24 A Right
25 Q Let's look at SP-13.
143
1 A Here you write that you got EDAW on there.
2 Q Sort of an introduction?
3 A Yeah. There's usually a project description.
4 There we go.
5 Q That's the description that says high -end retail?
6 A Right
7 Q Paraphrasing what it is.
8 A General development plan. Project
9 Q Who prepared, on page 23 of SP-13, these
10 schematics for new construction and existing to remain?
11 A It would be either EDAW or ourselves. We had --
12 . this is why I don't particularly care for them. They don't
13 really do anything.
14 In my opinion, we hired a consultant to do work,
15 but they're always like, well, here, send us that, and
16 we'll put it in this thing. So a lot of the work we
17 actually had to do.
18 Q It's possible it came from you?
19 A It's possible it came from us. It doesn't really
20 say here.
21 Q Do you know what this means, "Herb Fauland
22 inquired regarding legislative actions for the specific
23 plan and suggested to.get as much as possible approved
24 ahead of time -- pre -entitled.
25 Do you know what that means?
144
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FRANK CODA, 07.27.00,
BURLINGTON V. HUNTINGTON CENTER
1 A I don't know what he's meaning. I assume, because
1
2 he's swing to get as mach -- I don't know what that
2
3 means
3
4 This is what he's talking about. Starts up there.
4
5 Q Uh-huh. Would this mean get the conceptual plan,
5
6 then they work out the details with the CUP?
6
7 A Uh-huh.
7
8 Q Do you know if that's going on right now?
8
9 A CUP'"
9
10 Q Yeah.
10
11 A No, we're still in the specific plan stage.
11
12 Q Well, specific plan has been approved, specific
12
13 plan 13?
13
14 A Yeah.
14
15 Q Yeah.
15
16 A Okay. Again, some of it -- some of these details
16
17 I don't keep up with.
17
18 Q Okay. Did you have contact with the other Jane
18
19 James or Herb Fauland?
19
20 A No.
20
21 Q No City people?
21
22 A No, not me.
22
23 Q I understand. Can you give any comment on
23
24 Jane James?
24
25 A Not really. City's been wanting this to probably
25
145
1
happen for a while.
1
2
Q Were you told? Do you know if the City wants to
2
3
keep the existing tenants? Have you had any conversations
3
4
or knowledge of that?
4
5
A No, I haven't had any conversations.
5
6
Q Either way. Do you know if this project needs an
6
7
EIR?
7
8
A I don't believe it does.
8
9
Q Why?
9
10
A Because the impacts — that building, example,
10
11
back to the traffic, the previous project — not even the
11
12
previous project. The existing mall, our impacts are equal
12
13
to or less than the existing mall, if the mail was
13
14
operating fully today.
14
15
Q Uh-huh.
15
16
A So the threshhokl for EIR is that issue. In other
16
17
words, if you don't have any other — if you're not
17
18
increasing hnpacts, then you're not required to do them.
18
19
Q What about height? I guess the height levels
19
20
would remain the same? *
20
21
A Yeah, height's not really, believe it or not, an
21
22
impact in this type of center.
22
23
Q We dealt with one that had a problem with birds.
23
24
A No, I'm not saying height isn't looked at. The
24
25
height issue, It's minor.
25
146
Q Okay.
A Because some of those buildings are fairly tall
today. I mean the old Bullocks on the end is a pretty big
structure.
Q How many stories is that? Three stories?
A Yeah. I think Montgomery's is two.
Q Burlington, you mean?
A No, I think it was Montgomery's. Is that two or
three?
Q I don't know.
A Yeah. Yeah, well, Burlington was JC Penny's.
MR. COHEN: Exhibit 97 is five pages long.
I'd like to mark for identification Exhibit 98.
February 1, 2000 letter from EDAW to Dinovitz.
(Whereupon Plaintiff's Exhibit 98 was marked for
identification.)
BY MR. COHEN:
Q What's this?
A You have to go through and establish whether you
need an EIR or not. So this is basically a proposal to
Scott for that work dram EDAW.
Q Do you know if EDAW has said they would need to do
an EIR?
A It's not EDAW's call. It's the City's call. You
have to prepare the environmental assessment fbrm.
147
Q Uh-huh.
A And based on that assessment, the City determines
if there are impacts that need to be studied or if not. It
looks like prior they had issued a mitigated Neg Dec.
That's what I thought happened in the old project,
Macerich project. They went through the EIR project. They
issued a mitigated Neg Dec.
AB we have to do at this point of time or this
project 6 to bring it curreaL There's no change really.
No real scope in terms of square footage. That's really
what the issue is. How mach square footage. Traffic is
the issue. You're looking at other impacts. There's no
residences around. Height of 20 or 30 feet, it's not going
to matter.
Q And you're not putting it to wrong types of uses?
A To some degree the CEQA, it does look at use, but
every use on this site is just considered a commercial use
because it's — you look at residence or prison or a major
category, so this is — they don't — there's really no
change of use. This is just a proposal to Scott.
Q Exhibit 98 is four pages.
A This looks like —
Q Is that the original?
A Let me see. Maybe. February 1st. No, it's
longer text
148
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1 MR. COHEN: Mark it as Exhibit 99. Letter from EDAW,
1
2 February 1, 2000, to Scott Dinovitz. Revisions of the
2
3 prior CEQA document, mitigated negative declaration. Same
3
4 topic.
4
5 (Whereupon Plaintiffs Exhibit 99 was marked for
5
6 identification.)
6
7 THE WITNESS: It looks like they're asking for more
7
8 money, associated with the additional task.
8
9 BY MR. COHEN:
9
10 Q That's why they put an extra paragraph. Okay.
10
11 This is basically also regarding them doing an EIR; is that
11
12 correct?
12
13 A Yeah, it looks like City and Ezrslow draft updates
13
14 of the draft environmentai assessments — Macerich Company,
14
15 they had actually got a CUP as well as part of Macerich's
15
16 deal.
16
17 Q But this project would probably require a new CUP.
17
18 A Yes.
18
19 Q If it's not SP-13?
19
20 A It would be substantially different.
20
21 Q Wel move on.
21
22 A This is all part of proposal and scope of work.
22
23 MR. COHEN: 99 is four pages.
23
24 I'd like to mark as Exhibit 100 another
24
25 transmittal to Charles Bell, Blair Ballard Architecture,
25
149
1 February 2, 2000.
1
2 (Whereupon Plaintiffs Exhibit 100 was marked for
2
3 identification.)
3
4 THE WITNESS: Sent a copy of the current site plan.
4
5 They're probably architects for some user.
5
6 BY MR. COHEN:
6
7 Q Okay. You don't know who?
7
8 A No. May be the theaters. I thought they may be
8
9 the theater architects.
9
10 Q At this point in the project, you're just not at
10
11 that level —
11
12 A To know exactly.
12
13 Q -- to talk seriously with each of the retailers?
13
14 A No, you're feeling each other out.
14
15 MR. COHEN: Mark as Exhibit 101-a transmittal, February
15
16 3, 2000, to Ms. Tma Go at MCG.
16
17 (Whereupon Plaintiffs Exhibit 101 was marked for
17
18 identification.)
18
19 THE WITNESS: They are architects and they do the Bed,
19
20 Bath and Beyond work. I assume we were sending them over
20
21 stuff with that. Site plan that you requested, tentative
21
22 schedule. Blab, blab, blab. So, yeah.
22
23 BY MR. COHEN:
23
24 Q So when did Bed, Bath and Beyond actually —
24
25 A There you go. We —
25
150
FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
Q I'm going to paper clip the same thing.
MR. COIN: Mark as Exhibit 102, EDAW letter from EDAW
to Project Team.
(Whereupon Plaintiff's Exhibit 102 was marked,for
identification.)
THE WITNESS: Meeting minutes again.
BY MR. COHEN:
Q More meeting minutes?
A Of the February 1st meeting.
MR. COHEN: 103, marked for identification, the fax
transmittal, February 10, 2000, to Richard Tom Sawyer.
(Whereupon Plaintiffs Exhibit 103 was marked for
identification.)
THE WITNESS: Sending elevations for Circuit City and
Mervyn's.
BY MR. COHEN:
Q They were going to move into Mervyn's?
A No, they were going to move.
Q D on Exhibit 41.
MR. COHEN: Mark as Exhibit 104, letter from EDAW. Has
an appendix and draft.
(Whereupon Plaintiffs Exhibit 104 was marked for
identification.)
BY MR. COHEN:
Q Is this for — what is this?
151
A This is for the probably specific plan for the
signage standards.
Q Now, is this going to be for the new SPs like the
SP-12 or SP-13? Or is this from the old Macerich?
A I suspect this is from the old and they sent to
John Veregge at our office. Per your request,
attached — with City's comments This is probably the new
one. EDAW is coordinating with as on —
Q -- working out the signage?
A Right.
Q Okay.
MR. COHEN: Mark as Exhibit 105, February 21, 2000
letter from Randy Baugh. Enclosed please find site plan.
And it includes the site plan.
(Whereupon Plaintiffs Exhibit 105 was marked for
identification.)
BY MR. COHEN:
Q Do you know what this is? Who is Randy Baugh?
A I don't know who Randy Baugh is.
Q Is he somebody from Montgomery Ward?
A Not that I know of. Maybe it's — he maybe is
with Mervyn's. Keep going.
Q Oh, Mervyn's, yes.
A Now we're getting closer to Exhibit 41.
Q Yeah. Is this all together?
152.1
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A It's all one, yeah.
MR. COHEN: Mark as Exhibit 106.
(Whereupon Plaintiffs Exhibit 106 was marked for
identification.)
THE WITNESS: This is to Doug Gray. We're
transmitting to Doug Richard Sawer's plan for Circuit
City. That's the confirmation fax.
MR. COHEN: 107 is a transmittal letter, February 22,
2000, to Ezralow Properties.
(Whereupon Plaintiffs Exhibit 107 was marked for
identification.)
BY MR. COHEN:
Q I guess that encloses a zip disk?
A Right.
Q Is that a site plan just on the computer?
A Right, multi -color site plan in Autocad format.
Q Did the colors represent different things? How do
you determine? Can we look at your color one?
A Sam
Q Let's see. I thought you had different colors.
Yeah, I'm looking at the color copy of SP-12. Which
actually well attach. We're going to want a color copy of
SP-12. No, strike that.
I'm just looking at a color copy of SP-12. It has
different colors.
153
A Right
Q Does that represent anything?
A No, just a way to help read.
Q Just to visualize separation?
A Right:
Q Okay.
A Same date.
Q Same thing.
MR. COHEN: Mark as Exhibit 108 another transmittal,
February 25, 2000, to EDAW.
(Whereupon Plaintiffs Exhibit 108 was marked for
identification.)
BY MR. COHEN:
Q What's this?
A This is from John Veregge. And this, we're
sending the specific site plan. This is for the almost a
million square -foot deal Two fall size copies. A site
identification plan and a CAD disk of each site plan
above: This is for incorporation into one of the specific
plans. Whatever — .
Q . Okay.
A Whatever,13,12.
Q Okay.
A Whatever. We provide a lot of the graphics and
documentation.
154
1 MR. COHEN: Mark as Exhibit 109, a letter from Linscott
2 Law & Greenspan. A memo dated March 3, 2000.
3 (Whereupon Plaintiffs Exhibit 109 was marked for
4 identification.)
5 BY MR. COHEN:
6 Q What's this?
7 A This is from Scott Dinovitz. No, to
8 Scott Dinovitz. So they're saying the plan and the square
9 footage don't match. That's pretty much what they're
10 saying there.
11 Q Okay.
12 MR. COHEN: 110, mark as Exhibit 110 a transmittal
13 March 8, 2000.
14 (Whereupon Plaintiffs Exhibit 110 was marked for
15 identification.)
16 BY MR. COHEN:
17 Q What is this?
18 A This is to Doug Gray. And looks like we're
19 transmitting to him the tint draft of corrections for the
20 specific plan. So in other words, the sequence was EDAW
21 took their best shot and then sent it to the project team.
22 We all had a shot to mark it up and make it right in our
23 opinions, so we're sending our comments on the draft back
24 to Doug. And probably Scott is probably second
25 transmittal
155
1 Q Would that be SP-13, you think?
2 A Perhaps. I don't —
3 Q You don't know?
4 A Yeah, I'm not even sure why we have a 12 and 13.
5 I suspect that — I suspect at that time City wanted some
6 way to differentiate a draft from a final.
7 Q I know there was a number of draft 13s, too?
8 A Okay.
9 Q This is all the same, just to different people?
10 A That's a confirmation fax.
11 MR. COHEN: Mark as Exhibit 111 a fax cover sheet from
12 Ezralow Retail Properties to Bob Bucci from Lori Fox.
13 RubWs floor plan.
14 (Whereupon Plaintiffs Exhibit 111 was marked for
15 identification.)
16 BY MR. COHEN:
17 Q What is this?
18 A I guess we're starting to work with Rubio's so
19 they send over what they'd like to see. We try to ping it
20 in somewhere.
21 Q Do you know where they're going to be?
22 A They're probably going to be in this food court
23 area here.
24 Q Section C?
25 A On 41.
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Q 41? Okay. Do you know who Lori Fox is?
1
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A She's one of the assistants working for Doug and
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PauL
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MR. COHEN: Mark as Exhibit 112. Fax transmittal,
4
5
March 20, 2000, to Paul Bernard regarding the Rubio's and
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Pizza.
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7
(Whereupon Plaintiffs Exhibit 112 was marked for
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identification.)
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THE WITNESS: So we're sending everything that we sent
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10
to Rubio's a copy to Paul, so he has it for his records.
10
11
MR. COHEN: Mark as Exhibit 113. March 20, 2000 letter
11
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to Sharon Mc Hugh from Rubio's and —
12
13
(Whereupon Plaintiffs Exhibit 113 was marked for
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14
identification.)
14
15
THE WITNESS: We're putting them in that food court,
15
16
yeah. So that would be in one of these sites.
16
17
BY MR. COHEN:
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Q Do you know if they're set up to be in the center?
18
19
A Define "setup.*
19
20
Q They haven't signed anything yet?
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21
A No.
21
22
MR. COHEN: Mark as Exhibit 114, transmittal March 20,
22
23
2000.
23
24
(Whereupon Plaintiffs Exhibit 114 was marked for
24
25
identification.)
25
157
t BY MR. COHEN:
1
2 Q Do you know what that is?
2
3 A This is to Scott Dinovitz from Bob Bucci. CD of
3
4 all the graphics on the specific plan and just let him know
4
5 we had not reviewed the two addenda to the plan since we
5
6 didn't get them from EDAW.
6
7 Some of this is CYA. Hey, we can't comment on
7
8 something we didn't get. But we're transmitting the
8
9 graphics on CD.
9
10 MR. COHEN: Mark as exhibit --
10
11 THE WITNESS: This actually isn't for this project.
11
12 BY MR. COHEN:
12
13 Q It's not?
13
14 A No. Graphics work on the Calabasas.
14
15 Q You want to take it out? - _-
15
16 MIL COHEN: Mark as Exhibit 115. Letter of
16
17 transmittal, March 20, 2000, transmitting plans to
17
18 Alan Ackerberg.
18
19 (Whereupon Plaintiffs Exhibit 115 was marked for
19
20 identification.)
20
21 BY MR. COHEN:
21
22 Q Do you know who that is?
22
23 A I believe because it's Minneapolis. It's --
23
24 there's another user. What's his name? Hold on. Cole's.
24
25 I believe they're with Cole's Department or related to
25
158
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
Cole's which is another user that's been interested in this
site.
Q How many square feet do they want?
A I think 60- to 80,000 foot range.
Q What do they deal in?
A Like an upscale Mervyn's. They're not in this
marketplace. They haven't been; to California. They think
they're going to come. They saw — I think they saw this
project at Vegas, at ICSC in Vegas, and were interested.
We don't have a spot, but you never say "no" until
everything's in place.
Q Did anyone from GFA go to Vegas?
A Yeah, I did. They held a lot of interest
actually..
MR. COHEN: Mark as Exhibit 116.
(Whereupon Plaintiffs Exhibit 116 was marked for
identification.)
THE WITNESS: This is a confirmation fax to court
architects. They are architects for Toys R Us people. I
think we were talking about Kids R Us with them or —
again, same issue, sending them stuff.
BY MR. COHEN:
Q Uh-huh. How much space are they interested in?
A On Kids, actually like 25.
Q What's Kids R Us?
159
A Kids R Us is clothing, soft goods.
MR. COHEN: I think first one was a confirmation fax of
this one. III put it together.
Mark for identification as Exhibit 117, fax
transmittal, March 29, 2000.
(Whereupon Plaintiffs Exhibit 117 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A To Scott Dinovitz from Bob Bucci. And we're
sending him mark-ups of the signage exhibit for this
specific plan. Confirmation and a duplicate.
Q I like that.
A I'm trying to save trees and here I got people
printing out.
MR. COHEN: Mark as Exhibit 118, March 30, 2000 letter
to Cindy Walker, Lubert-Adler.
(Whereupon Plaintiffs Exhibit 118 was marked for
identification.)
BY MR. COHEN:
Q Who are they?
A I think they're the architects for Coles. I
believe that was the case. They were sending them a disk
of the site plan.
. MR. COHEN: Mark as 119, letter from Linscott Law and
160
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Greenspan Engineers.
(Whereupon Plaintiffs Exhibit 119 was marked for
'identification.)
BY MR. COHEN:
Q What's this?
A This b the start of what I was telling you
earlier about how Cat -Trans cared about what was on site.
The ramp design off of Cal -Trans — circle feature needs to
be moved here. They're starting to show as
Q This is off the ramp?
A As this comes in, Cat -Trans had the problem of how
does this work because they were worried about people:
backing up into their ramp, so we revised that
In fact, none of this is actually the current
design with that particular issue. We're still wrestling
with them, what we like and what they want Blah, blab,
blab. This is — here's an example of the real early
plan. You can see the street is straight with islands in
it versus the curbing.
So again, we wrestled over this area for months,
back and forth, back and forth. Same concept, but we
probably got 20 different versions of —
Q Uh-huh.
MR. COHEN: Mark as Exhibit 120, letter of transmittal,
April 7, 2000.
161
(Whereupon Plaintiffs Exhibit 120 was marked for
identification.)
THE WITNESS: This is to Scott Dinovitz from Bob Bucci,
and we're sending him a zip disk of Burlington, alternate
plan.
BY MR. COHEN:
Q Would that be Exhibit 42?
A That could possibly be that
Q Do you think? So this was created maybe in and
around April 2000?
A Most likely.
Q Do you know why it was created?
A No, I don't
Q Somebody said give us one with Burlington in
there?
A Probably: I suspect becaaseeveryone was having a
big beartache about doing the deal. They said okay what
does it look Woe it they keep them? .
MIL WATSON* Do you know if Exhibit 42 was the
attachment to 120?
THE WITNESS: No, I don't know that.
BY MR. COHEN:
Q We'd have to go back to your --
A Well, if we — the way they get it, it would go to
Scott, because we just made a copy of something and put it
162
1 on the zip disk and sent iL
2 Q You don't even have a hard copy of it?
3 A R*11L Not even knowing — I don't have a trail
4 what was on thaL
5 Q Now, you said there might be two or three
6 conceptual design plans that include Burlington?
7 A Early on, when we were looking at it, we said that
8 it doesn't 13t.
9 Q But the only one that is being contemplated is
10 42? Is this the most recent, is Exhibit 42 the most
11 recent, current Burlington design plan?
12 A That, I don't know. I don't know, because this
13 is — the reason I say that is there's elements in the plan
14 like probably — I don't know. That, I don't know. It
15 could be. It probably is the most recent, just because we
16 all have it, and it's dated May 22, 2000.
17 MR. WATSON: Let's take a short break, if that's okay.
18 MR. COHEN: Slue.
19 (Recess taken.)
20 MR. COHEN: Mark for identification as Exhibit 121 an
21 April 7, 2000 letter of transmittal to Paul Bernard.
22 (Whereupon Plaintiffs Exhibit 121 was marked for
23 identification.)
24 BY MR. COHEN:
25 Q This is just showing Circuit City plans; is that
163
1 correct?
2 A Yeah; showing Circuit City parking enlargements
3 Two copies of same at 30 by 42. We were sending something
4 about Circuit City's parking.
5 MR. COHEN. Mark as Exhibit 122 a confirmation of
6 April 7, 2000 transmittal.
7 (Whereupon Plaintiffs Exhibit 122 was marked for
8 identification.)
9 THE WITNESS. To Scott Dinovitz from Robert Bucci.
10 It's all together. This is where they were summarizing the
11 parking count, because the parking count is important in a
12 specific plan. These are split in half.
13 BY MR. COHEN:
14 Q This is all together?
15 A Yeab.
16 Q What's this? is that the same thing?
17 A That's the same. And that's different
18 MR. COHEN: Mark as Exhibit 123 another April 7, 2000
19 transmittal.
20 (Whereupon Plaintiffs Exhibit 123 was marked for
21 identification.)
22 BY MR. COHEN:
23 Q What is this?
24 A This is to Scott frrom Bob Bocci again. I think
25 the previous one was 900,000 square foot parking count?
164
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1 Q Yeah.
1
2 A 9,003 — 900 and 300 — 900 and —
2
3 Q Oh, yeah. 938,625.
3
4 A Thank you. This one exhibit 123 has to do with a
4
5 million one basically parking count And there's the
5
6 tabulation on theca
6
7 MR. COHEN: Exhibit 124, April 13, 2000 transmittal.
7
8 (Whereupon Plaintiffs Exhibit 124 was marked for
8
9 identification.)
9
10 THE WITNESS: This is to Scott Dinovitz from Bob Bucci.
10
11 And we're transmitting a zip disk of the revisions to the
11
12 specific plan.
12
13 MR. COHEN: Mark as Exhibit 125, April 14, 2000
13
14 transmittal, enclosing statistical summary.
14
15 (Whereupon Plaintiffs Exhibit 125 was marked for
15
16 identification.)
16
17 THE WITNESS: This is to Scott Dinovitz. This
17
18 is -- these all go together, but this is that figure we
18
19 were wondering, so we did produce it. We marked it up.
19
20 They might have done the graphics, but looks like we're
20
21 doing the numbers.
21
22 BY MR. COHEN:
22
23 Q "They" being EDAW?
23
24 A Right.
24
25 MR. COHEN: Exhibit 126 marked for identification.
25
165
1 April 24, 2000 transmittal letter.
1
2 (Whereupon Plaintiffs Exhibit 126 was marked for
2
3 identification.)
3
4 THE WITNESS: This is to CRHO Architects. I don't know
4
5 who they are architects for, but I suspect they're some
5
6 user we're working with.
6
7 MR. COHEN: 127. I'd like to mark as Exhibit 127
7
8 letter of transmittal dated June 29, 2000.
8
9 (Whereupon Plaintiffs Exhibit 127 was marked for
9
10 identification.)
10
11 THE WITNESS: This is Gary Freedman of the Ezralow
11
12 Company, sending two copies of conceptual site plan dated
12
13 2/28 to him per the request of Lori Fox of Ezralow.
13
14 BY MR. COHEN:
14
15 Q Right Now we don't know what conceptual plan?
15
16 A But at this time we have dates. I'm sure we
16
17 can —
17
18 Q Find that?
18
19 A Yeah:
19
20 Q That's the confirmation sheet?
20
21 A This one is out of order.
21
22 MR. COHEN: Mark as Exhibit 128. April 24, 2000 memo.
22
23 (Whereupon Plaintiffs Exhibit 128 was marked for
23
24 _ identification.)
24
25 /
25
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BY MR. COHEN:
Q But you don't really know? '
A These are architects. Site plan. I guess we were
faxing it.
MR. COHEN: I'd like to mark as Exhibit 129 another
memorandum from Linscott Law & Greenspan dated May 11,
2000.
(Whereupon Plaintiffs Exhibit 129 was marked for
identification.)
BY MR. COHEN:
Q What is this?
A This is to Scott Dinovitz It's the preliminary
sharing parking study for the Crossings at Huntington.
This is their preliminary report sharing parking study.
Q Shared with whom?
A Well, what you do is — for instance, if you have
a theater on a site all by itself —
Q Uh-huh?
A —they need X number —just for a number's
salve — 200 parking spaces. When you combine uses, retail
and theater and restaurant, you don't need to necessarily
provide 200 spaces for that same theater when it's shared
use, because you have people moving in and out. You have a
lot more spaces, but you don't have to provide — the city
code usually provides a require per use is terms of parking
167
space. You can relax those requirements as a whole based
on shared uses.
You know, the restaurants are busy in the evening
when retailers may not be, or theaters on the weekend, that
type of thing. So city codes allow for that thinking.
So this is the study that is required to get to
the number of parking spaces we have to provide.
MR. COHEN: Mark for identification as Exhibit 130 a
memorandum dated May 12, 2000 to Doug Gray from Cristina
Agra -Hughes.
(Whereupon Plaintiffs Exhibit 130 was marked for
identification.)
BY MR. COHEN:
Q Do you know who that is?
A Right. That's the — we said in the beginning
Crisdna Agra -Hughes is the construction person at —
in-house at Ezralow.
Q At Ezralow?
A Right.
Q Is she like -
A She's the one who signed up my contract and
approves payments and contractor payments.
Q She's the main person?
A In that respect, yes. And this is — this is the
wish list of the security folks at the current Huntington
168
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'r
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it
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Beach maLL When we design the new facility, this is what
they would recommend is in place in part of —
Q Regarding security?
A Right. Kind of their specs, if you would.
MR. COHEN: Mark as Exhibit 131 letter of transmittal
dated June 19, 2000, to Jason, Gorden, Epstein &
Associates.
(Whereupon Plaintiffs Exhibit 131 was marked for
identification.)
BY MR. COHEN:
Q Who are they?
A Epstein & Associates. They're familiar. I'm
trying to think what they do. They're something related to
the theater. Either going to be like the brokers or
somebody. I've heard of them before. I'm not exactly sure
what their capacity is, but it has to do with the theater.
Q And they want to know how long the courtyard
area --
A That's what it looks like.
Q So that would be — let's take 41.
A Area C.
Q Area C. Okay.
MR. COHEN: Mark as Exhibit 132, June 27, 2000
correspondence or transmittal letter to Gary Federich &
Associates.
169
(Whereupon Plaintiffs Exhibit 132 was marked for
identification.)
BY MR. COHEN:
Q Do you know who they are?
A Sounds like an architect, if I had to guess.
Q For a potential retailer?
A Right.
Q User?
A Right.
Q User is the proper word, I guess. There is
something in the pocket. What is that?
A This is from EDAW dated 12/9/99 to Bob BuccL Oh,
this is the current — they're transmitting to as the
current signage code. So this represents —
MR. COHEN: Let's mark what you're reading as Exhibit
136. It's a number of pages to EDAW.
(Whereupon Plaintiffs Exhibit 136 was marked for
identification.)
THE WITNESS: It looks like there's something from the
City of Huntington Beach from Jane James to Jayna Morgan of
EDAW. Here is the current sign code. And it's just city
code for signs. Because we were using that as a basis to
start for the specific site plan regulations.
MR. COHEN: Basically, we pretty much agreed to do this
in two parts, and to adjourn after we finished the notebook
170
1 of documents. Pretty much probably for two reasons: one,
2 we're just —
3 THE WITNESS: Worn out.
4 MR. COHEN: —worn out
5 We have some more questions and, two, we need to
6 go back to GFA and look at the site plans that weren't
7 broughttoday.
8 THE WITNESS: Correct
9 MR. COHEN: And we need you to take a look at those.
10 So what well do is the court reporter will prepare the
11 transcript;
12 send a copy to Mr. Coda at his officer at GFA with
13 a self-addressed, stamped envelope with it. And youll
14 review it, make any necessary corrections. Let's say 30
15 days to review. And then you'll send it back to our
16 offices.
17 We retain custody of the original. And if in the
18 event the original is lost or misplaced or if it's not
19 signed, then a certified copy will be used in its place.
20 Do you have anything else?
21 MR. WATSON: That's fine with me.
22 We'd like a copy of.the deposition as well.
23 MR. COHEN: And we're making copies of all the
24 exhibits, and that's what well give to the reporter, and
25 give you back the original you brought today. So
171
1 stipulated?
2 MR. WATSON: So stipulated.
3 (Volume I of deposition concluded at 2:26 p.m.)
4 (Declaration of Penalty of Perjury attached
5 hereto.)
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Abercrombie 38:21
able 32:17,17,19,25
33:20 46:4,19
about 9:6 12:25
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41:25 49:20 50:3
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above 43:15 58:3
105:17 127:14
154:19
Absolutely 12:21
38:5 68:2 71:1
abutting 123:21
accept39:22 109:14
access 115:7 137:1
accommodate 32:17
32:19
accomplish 40:25
54:25 65:11
accomplished 5 1: 10
accounts 88:22
accuracy 23:6
Ackerberg 158:18
acquiring 26:2
across 99:16
act 29:7
actions 144:22
activities 13:18
actual 10:13 62:12
73:10 74:22 75:22
75:24 78:25 80:19
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actually 14:918:2
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27:24 31:24 33:7
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68:22 71:24 75:20
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86:15 96:3 98:7,12
100:16 101:7
104:10 113:15
120:22 121:19
128:17 129:8
136:17,23 138:22
139:1 144:17
149:15 150:24
153:22 158:11
159:14,24 161:14
addenda 158:5
adding 22:1 78:8
addition 128:16
additional 149:8
address 7:18 8:1,3,4
14:18,21 18:5
21:15
addressed 21:16
adjourn 170:25
adjust 53:3
admin 37:1
advantageous 98:2
aerial 22:7,14
affect 17:7 80:22
108:10
affiliated 16:13
after 44:24 90:17
92:13 104:2
170:25
again 26:3 27:7
31:16 32:5,6 37:9
37:10 39:18 40:18
45:21,22,24 54:12
55:12,24 64:9
70:15 76:21 81:5
83:3 84:8 101:8
105:4,17,17 107:17
110:9 116:20
121:7 127:9
128:20 129:21
132:2 135:2,6,10
136:25 138:23
139:15 145:16
151:6 159:21
161:20 164:24
against 68:12
agencies 53:11
agent 37:11
ago 16:4
Agra -Hughes 4:14
168:10,16
agree 34:17,18 38:10
38:10 ---
agreed 65:18,19
170:24
agreement 27:3
54:14 91:22 92:4
92:11,13,16 101:2
ahead 15:10 74:15
95:12 136:4
144:24
air 62:2,4
Air-conditioning
72:8
alas 3:9 158:18
Alia 94:4
allot 80:19
allow 168:5
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allows 97:21
almost 154:16
along 54:16 125:25
137:23 138:14
already 22:3 40:14
78:18 128:7 131:5
alternate 162:4
alternative 100:13
101:5
alternatives 101:15
although 108:25
Altoon 124:5,5,15
always 17:1 89:4,23
104:16 105:17
141:22 144:15
American 125:2
amortization 142:5,8
amount 72:19 79:23
119:6
analysis 56:11
Angeles 2:25 3:5,11
7:2 18:6
Anne 2:21
another11:22 20:10
23:1136:10,11
44:3 47:2,13,15,21
48:21 51:22 54:2
57:15 59:20 60:13
71:5,12 74:20
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APPEARANCES
3:1
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apply 120:16
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architect 11:7,10,12
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assembled 18:22,24
assessment 147:25
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assign 79:22
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assistants 157:2
assisted 37:14
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associated 149:8
associates 1:10 2:9
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assume 10:8 12:4
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assumptions 100:13
as -in 104:14
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attach 153:22
attached 48:13 71:14
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attempt 84:17
attendees 94:3 95:18
Attention 37:5.45:22
attorney 3:4,10 26:4
audible 123:14
augment 85:16
August 21:8 22:2
23:11 34:11
authorities 92:5
auto 66:13
Autocad 153:16
automotive 63:22,24
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
64:15,23 65:7,13
101:11
automotives 64:2
availability 80:23
Avenue 42:3,5 68:6,6
70:13 79:10 81:17
122:12 123:8
125:25 126:10,22
126:23,25
aware 15:22 95:15
103:15,17
away 40:17 67:9
81:23 82:4 126:19
a.m 1:20 2:23 7:1
B 4:6 5:1 6:1 8:9
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61:20 69:15 70:3
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bachelors 12:15,15
back 10:8 18:19
32:25 33:10 35:6
38:9 39:18 40:18
42:10,24 45:3
54:25 58:25 59:11
68:8 70:7,15 74:8
77:7 102:3 104:6
113:3 115:9 119:1
121:25 123:5
126:4 127:15
128:5 133:4,19
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backing 161:13
bad 32:8,13,13 46:21
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Ballard 149:25
bank 88:21 142:10
base 23:18,20 24:11
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118:21,22 121:5,8
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bathrooms 127:21
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142:10
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105:16107:18,20
107:23 108:2,11,13
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112:21 114:3 -
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 174
115:3,8 125:15
127:1,11,12,13
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131:23 132:20,22
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built 92:10
Bullocks 147:3
burtington 1:6 2:5
7:16 30:25 31:1,24
31:25 41:20 44:8
44:13 63:13 66:1
66:11,14,19 76:17
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114:3 115:3 117:4
117:11,16,17 118:4
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bus 122:19
business 84:20117:9
busy 168:3
Buy 41:6
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calculation 79:21
calculations 132:24
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campus 51:11,12
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CC 60:3
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circle 161:8
Circuit 40:12 41:5
151:14 153:6
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circulation 79:4
cite 89:15
cities 52:24 98:19
city 13:9 16:12 17:10
17:11,21 26:8,9,12
29:4 40:12 41:5
50:15,16 52:22
53:9,17,19,22 86:7
88:15 90:18,20,22
91:23 92:6,20 93:1
95:13,14,21 96:3,7
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city -by -city 98:17
civil 94:5
clarifying 83:23 84:5
84:9
clean 28:2 117:15
clearance 125:22
126:3,5
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
Cleary 23:18
client 11:20 26:4,20
59:8 72:14 96:16
124:6 137:25
clientele 117:12,14
117:18,19 118:5
clients 72:14,15
133:22
clip 93:2 151:1
clipped 128:7,11,19
clips 19:10
close 21:19 50:23
62:15
closed 62:1
closer 152:24
clothing 160:1
clue 71:15
Coast 13:125:9
coat 1:6 2:5 76:18
117:4,11,16,17
coda 1:19 2:20 7:4
7:15 171:12
code 81:3 82:1 84:15
97:10 107:23
108:12,14 109:5
167:25 170:14,21
170:22
codes 72:6 107:18
168:5
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159:1 160:22
color 112:13 118:22
137:23 138:7
153:18,21,22,24
colored 129:19
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colors 153:17,20,25
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columns 72:5 85:23
combination 30:17
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come 30:13 34:9
42:23 51:24 64:4
72:23 78:14 85:19
92:13 95:13 99:16
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commitment 37:25
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59:6 60:1 105:4
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15:6,14 16:17
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31:16 33:139:18
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concern 79:7
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concluded 172:3
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48:14,18 104:14
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confirm 77:22 84:17
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confirmation 20:11
Page 175
20:11,12 73:19,20
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constantly 135:15,17
constraints 68:13
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contractors 49:24
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLING roN V. HUNTINGTON CENTER
50:6,9,14120:9,10
120:21 129:22
contracts 96:10
conversation 26:1,15
87:11 117:23
conversations 27:17
34:1,2,6,8 64:5
65:12 146:3,5
conveyed 33:16
cooking 72:12
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152:8
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FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
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everyone 99:12
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
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Page 179
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includes 30:25 44:8
57:21 63:4 69:2,7
74:22 84:20 98:12
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
101:9 104:12,13
152:14
including 80:22
102:5
inclusive 1:13 2:12
income 117:19,21
incorporate 64:10,23
incorporating 38:4
incorporation
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incur 96:12
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instance 33:24 66:10
70:18 167:16
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 180
lead 16:11 17:11,12
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leading 96:25 97:3
leads 80:18
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Maberry 94:6
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28:19 29:3,7 54:14
54:20 55:6 77:19
86:18,19 111:4
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
122:18 123:18
141:17 148:6
149:14 152:4
Macerich's 149:15
made 9:7 25:1,4
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mark-ups 160:11
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mass 23:3 107:4,4
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Page 181
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mix 24:22 26:10 91:6
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLINUTON V. HUNTINGTON CENTER
91:7 118:11,13,13
modifications 102:8
modify 28:21
moment 34:15 90:11
money 67:13 76:7
85:12 88:17149:8
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Mont 117:18
Monterey 118:23
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BURLINGTON V. HUNTINGTON CENTER
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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S 4:6 5:1 6:1
safety 72:7
sake 167:20
sale 54:18,18 128:1
FRANK CODA, 07.27.00
13URLINGTON V. HUNTINGTON CENTER
sales 85:3,10 132:3
same 8:23 20:10,19
20:20 32:15,24
59:23 70:14 74:15
80:13 83:6 85:13
85:15,22 110:24
111:18,19 124:14
131:1 139:15
140:8 146:20
149:3 151:1 154:7
154:8 156:9
159:21 161:21
164:3,16,17 167:22
save 85:12 135:3
160:14
saving 27:6
saw 50:13 74:4
102:19 138:11
159:8,8
Saver's 153:6
Sawyer 13:23 14:1,7
14:12 15:1 18:2,3
130:2,3 140:14
151:11
Sawyer's 138:22
saying 31:3 59:7
64:17 82:2 84:4
99:11 105:20
121:21 146:24
155:8,10
says 26:5 61:15 80:4
90:20 95:19 98:25
125:16 131:1
144:5
scale 29:23 35:21
70:17,22
scaled 138:18,19
scenario 132:20
scene/streetscape
61:18
schedule 142:5,8
150:22
schematic 52:8,12
schematics 72:1
89:15 144:10
scheme 27:25 82:4
136:21,22
schemes 67:11
135:14
science 12:16
scope 20:2 122:20
148:10 149:22
Scott 16:8,20,21
17:10,11 29:22
30:1 57:8,13 82:17
82:18 84:6 85:7
94:3 96:19,20,22
98:7 99:5,6,10,15
99:22 110:4,7
122:12 138:2
143:2,20 147:21
148:20 149:2
155:7,8,24 158:3
160:10 162:3,25
164:9,24 165:10,17
167:12
Scottsdale 120:2
Scott's 110:9
Sears 127:17 141:4,5
Sears -Roebuck
131:12
seating 106:9,23
second 28:11 43:6
62:7 92:23 97:3
109:25 114:12
128:18 137:3A
139:11 155:24
second -story 55:3
section 61:19,20,22
62:3,3 63:22 69:14
69:25 70:3 107:5
113:8,19,24114:10
114:11,14 143:21
156:24
sections 91:12
security 168:25
169:3
see 10:6 17:6 20:1,15
21:14 25:1131:9
31:15 32:18 34:21
34:22 40:1 41:23
43:17 44:23 47:23
49:20 51:9 53:4
54:17 57:12 59:3
63:7,12 64:22
66:15 68:17 70:20
72:18 73:5 76:2
79:14 81:12,18
85:25 87:15 98:5
98:18 103:21
104:3 105:12
109:11 112:22
114:8,24 119:8
121:14 122:15,22
122:24 123:2
125:4 126:8
127:20 129:7,22
132:16 133:13
134:2 137:3,4,14
137:16 148:24
153:20 156:19
161:18
seeing 118:10
seemed 21:19
seems 81:8 113:23
selection 50:7
self-addressed
171:13
self -standing 64:11
sell 25:23
send 24:3,3,7,17 34:9
37:16 38:7 49:19
52:15 53:1 72:16
90.1 135:7 142:2
Page 185
144:15 156:19
171:12,15
sending 18:11 19:20
21:13 29:23 33:12
35:21 37:9 48:18
48:19,20 49:2,16
59:24 60:22 63:1
71:9 73:3 82:16
111:13,20 112:13
118:21 122:12
124:8 125:14
127:9 130:18
131:1,16 136:11
139:14 140:1,8
150:20 151:14
154:16 155:23
157:9 159:21
160:11,23 162:4
164:3 166:12
sense 16:7 17:7
31:18 102:14
116:22 139:16
sensitive 20:16
sent 35:5,6 36:25
39:2 45:24 46:3-
54:9 55:24 59:4,25
71:15 73:4 74:17
75:20 84:3 86:25
87:12,21 112:2
121:22 122:13
136:15 150:4
152:5 155:21
157:9 163:1
separate 19:9 21:20
64:15,18 71:19
90:25 92:9 98:3
99:20 101:4
108:16 118:24
122:19
separately 19:8
91:10
separation 154:4
September 34:3,11
35:16 45:18,23
47:3 49:5
sequence 72:15
155:20
serious 131:7,7
seriously 150:13
serves 35:1
services 11:25 17:22
set 12:5 14:14 43:24
43:25 61:5 67:15
78:2,3 86:3 90:8
118:2 138:25
157:18,19
settle 49:7
seven 57:16,18
seven -office 11:7
several 20:23 21:22
38:15
shallow 85:11
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00:'
13URLINGTON V. HUNTINGTON CENTER -
shape 17:6 76:8
shared 167:15,22..
168:2
sharing 167:13,14
Sharon 157:12,
sheet 47:13 74:13
142:18 156:11
166:20
Shoemaker 131:11
shoes 109:9
shop 66:13
shopper 118:8,9
shopping 13:6 39:11
79:2 80:19 117:10
120:12 125:2
shops 43:20 70:15
114:3,4,6,18115:6
115:11
short 47:20 163:17
Shorthand 2:217:7
shot 22:7 55:14.
139:23 155:21,22
shovel89:8
show 51:10,13 161:9
showing 22:13 85:10
134:25 138:15
163:25 164:2
shown 106:15
shows 105:15
sic 93:6 101:17 122:1
122:5
side 8:15 15:12 16:23
33:10 34:20 35:3
65:20 68:6 69:21
69:24 70:13 76:7
91:19 92:6
sides 68:15
sign 36:6170:21
signage 152:2,9
160:11 170:14
signals 78:15
signed 21:1,3 36:3,4
37:22 38:154:20
157:20168:21
171:19
signs 170:22
similar 69:22 81:5
83:11 .
simply 73:24; r
since 26:8.48:Mf', .
56:25 95:3,3158:5
single 106:&. - `
sit 46:17 66:17, 73:1
sites 157:16=_
siting 32:1
sits 91:14 106:19
sitting 137:3
situation 32:19
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sixth 47:14
size 125:16 154:17
sized 39:25
sketch 125:15 127:10
128:21
sketches 30:18,20
31:18
skip 74:16
sky 115:1
slab 67:13,15 68:4
68:14 85:18135:3
slabs 67:19
slash 25:15,16
slate 28:3
small 70:15,22
102:10 133:19
smaller 41:1
Smith 5:19
soda 58:21 .
soft 116:22160:1,
soil 47:23
solicit 38:7
soliciting 37:15'
solid 34:4 90:7
some 8:19,22 9:6
11:9 19:10,11,21
23:3,4 28:10 37:9
37:12 43:20,21
45:5,5,10,10;10,10
45:24 49:4 56:4,7
58:21 72:14,15
75:18 7612 78:18
78:2180:3,15 81:9
81:10,23 82:3,19
83:15,19,23 84:8,
85:4 88:11,14 92:4
92:5 98:19102:18
103:22104:5
106:2 115:8
120:11,20125:6
129:2 130:17,17
131:8 134:15
135:4137:2,6,6,10
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somebody 61:15
84:2,3,9 86:18-
152:20jfi2:14
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somebody's 88:21
somehow 27:18 82:5
someone 38:7 94:19
124:8 129:9
137:10141:3-
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91:15 99:13
someplace 23:5
something 22:9
25:14 26:13 27:4
32:6 34:10 35:13
37:6,8 42:9 50:17
50:24 53:166:9
69:22 87:9 100:21
120:23 123:21
135:6138:13
158:8 162:25
164:3 169:13
170:11,19
sometime 11:17,17
89:4
sometimes 23:2 24:9
24:9 31:14 83:13
83:14 88:10,19
89:24,24 95:8,13
137:14
someway 82:5
somewhat 49:8 69:3
108:22
somewhere 11:23
14:22 22:22 29:15
49:5 89:16102:22
114:5 156:20
son 16:20
Sony 50:13,18 51:5
soon 51:25 91:16
116:23
sooner 89:24 98:1
sorry 14:19 15:18
29:13 42:2 50:11,
61:9 90:17 106:5-
132:17 136:4
sort 14:13 60:3 85:4
88:11,14 91:4 92:4
102:18103:22'
117:2 131:8 144:2
Sounds 170:5
south 18:6 25:9 42:3
42:4
southerly 81:18
Southern 23:21
51:19
so-and-so 24:8 37:16
space 16:2 23:23
24:25 39:13 40:16
44:9,13 46:11
63:20159:23`
168:1
spaces 80:20 81:6,10
82:3 126:13
167:20,22,24168:7
speak 56:22,23 57:5
57:7,9 60:5
speaking 56:13'
special 128:1
specialty 24:10
specific 4:18 11:10
17:13,14,15 28:9,9
28:18,21,23 29:2
49:12,13 53:10,20
67:15 72:14 73:3
86:25 88:12 91:4
95:3,4 97:4,22,23
98:199:1,12
100:21 110:9,13
120:2131.7
141:18143:12,16
144:22 145:11,12
145:12152:1
154:16,19155:20
158:4 160:12
164:12 165:12
170:23
specifically 14:9
46:23 104:13
specifications 38:3
specs 169:4
Spectrum 25:9�
spell 7:13 13:24
115:4
Spielberg 50:21
spit 120:12
split 126:6 164:12
spoken 60:8 77:1,3
spot 159:10-
spring 11:17
sprinkler 88:2
SPs 152:3
SP-12 22:9,15,16,18
23:7 28:13138:17
143:23 152:4
153:21,23,24
SP-13 22:10 28:17
30:22 69:198:12
143:25 144:9
149:19152:4
156:1
SP-2 29:11
square 33:8,9,19
39:5,25 41:7 63:10
77:21,22 79:18,23
80:4,6,10,13,15,20
81:7.83:24 84:18
105:5 113:24
119:4,11,16120:18
132:12,13,21 133:8'
148:10,11 155:8
159:3 164:25
square -foot 113:20'
154:17
stadium 106:9,23
staff 37:1
stage 53:24 71:22
72:23 88:9145:11
stages 90:5
stairs 43:22128:25
129:4,5,7,9
stalemate 105:1
stamped 83:9171:13
stamping 121:2
standard 8:22
137:12
standards 152:2'
standing 109:3
start 19:23 33:12
49:7 52:7,8 72:4,9
89:3,10,15129:20
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 186
132:11 161:6
170:23
started 11:16,23
34:2,9 49:4131:6
131:7
starting 30:2,4 54:11
61:12 72:6 78:2
87:13 115:22,24
156:18 161:9
starts 62:6 89:9
145:4
state 1:3 2:2,22 7:13
7:17 12:10
stated 45:4 49:17
statements 28:7
statistical 165:14
status 38:24
stay 32:2176:6
102:13 119:12
stayed 65:17
stays 108:2131:20
step 72:1
Sterling 5:9124:23,
still 14:19 26:16
32:18 34:3,13
46:24 52.17,18 '
53:9 7122 85:13•
97:8121:22
122:22:131:19,
136:14,24142:11
143:12145:11
161:15
stipulated 172:1,2
stone 120:25
Stoner 54:8
stop 122:19 .
stopped 105:4
store 132:4,6
stories 106:3 107:6
120:15125:19
147:5,5
story 33:23 107:14
107:15 108:9
133:2
straight 161:18
strata 61:11,11,17
69:14140:16
strategy 89:23
stream 88:6
street 3:10 7:1918:6
40:18,20 42:5
51:12 61:18
123:11 136:23
161:18
streetscape 50:24
51:3,7 61:16 66:5
strike 153:23
strong 52:24
structural 53:6 68:3
72:7 108:10
115:22,23 116:9
structure 21:25
31:24 32:1,14 34:7
41:21 42:19 64:15
64:18,24 66:12,20
66:22 68:2 81:2,9
82:3 106:7,8,21
107:5 108:16,17,24
109:3,4.6 120:16
125:15.19 127:10
128:23 147:4
structures 27:5
68:18,18 85:20
126:24 142:9
studied 148:3
studio 51:6
Studios 50:13,17
study 47:10 77:18
79:14 167:13,14
168:6
stuff 8:23 40:24
52:20 84:8 86:24
87:13 96:21 97:12
99:17 100:10
104:8 105:18
115:12,24 120:25
124:17 133:19
135:7,8 139:1
150:21 159:21
style 51:11,12,12
submit 91:2,9
submitted 141:18
submitting 90:16
subpoena 9:17,19
10:1,5,13
subpoenaed 24:5
subsequent104:12
substantially 120:14
149:20
sub -surface 47:22
48:8
successful 25:12,13
118:11,12 134:5
sued 8:16,17
sufficient 81:2,5
suggested 144:23
suggesting 145:2
suggestions 24:20
25:1,4
summarizing 63:10
164:10
summary 63:1,6,7,9
77:20 165:14
summer 11:17,17
superintendent
116:5
SUPERIOR 1:3 2:2
support 98:8
sure 7:15,19 8:7,21
9:11 14:2 19:20
23:17 29:1 35:4
44:14 54:13 55:12
71:17 80:25 84:14
90:13 107:24
108:6 126:21
128:1 132:23
138:8 139:2 142:7
143:5 153:19
156:4 163:18
166:16 169:15
Surely 43:10
surface 81:23
surprised 28:10
98:22 116:9
surrounding 25:7
78:15 79:16,17
108:25
surveys 134:6
suspect 22:2188:11
101:14 104:10
122:3 125:18
129:20 130:16
134:10,14 141:3,24
143:8 152:5 156:5
156:5 162:16
166:5
Swinerton 139:11,14
Swingerton 50:10
51:17
sworn 7:6
system 29:185:4
systems 72:8
S-a-w-y-e-r 13:25
T 4:6 5:1 6:1
tabulation 165:6
tad 16:1
take 8:24 10:7 13:6
17:17,24 29:8 39:7
58:22 81:23 90:10
95:11 111:5 120:7
124:9 139:22
143:4 158:15
163:17 169:20
171:9
taken 2:20 8:10
19:12 58:23 123:4
163:19
takes 82:3 92:17
taking 4:8-16:11
17:11,12 49:18
99:12
talk 17:24 35:13
120:20 138:5
150:13
talked 39:2 66:19
128:16
talking 31:6 32:21
33:13 34:13,21,23
40:15 41:6,10,25
50:3 54:13,13 64:9
66:13 73:2 91:11
91:24 104:18
106:13 111:16
113:5 115:9
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
117:19.21 127:23
139:12,17 143:12
145:4 159:20
tall 147:2
Target 117:13,23
Tarlos 60:19,19
task 149:8
tasks 11:4
team 57:16 67:20
88:25 95:19,20,22
98:25 137:24
151:3 155:21
Tech 12:18
technical 67:13
telephone 59:4
tell 8:24 66:10 92:2
117:15 119:15
128:25
telling 161:6
ten 26:7 31:13,22,23
49:25 135:14
tenant 40:11 66:21
115:8 116:20,25,25
tenants 24:137:15
131:8 146:3
tends 81:9 141:23
tentative 150:21
term 75:2 97:4
terms 14:13 27:9
32:9,9 40:9 62:11
69:23 102:1
116:13,20138:3
148:10 167:25
tested 67:21
testified 7:7
testimony 9:9,13
text 148:25
Thank 165:4
theater 33:24 43:5,8
43:14,23 44:16,19
62:4 104:7 106:4,9
107:11 114:16
128:24 129:2,6
137:5,6 150:9
167:17,21,22
169:14,16
theaters 38:17
106:22 133:19
150:8 168:4
their 18:5,7 24:12
26:4,18,20 29:9,15
32:22 33:6,13,22
34:7 40:16 47:9,11
50:1151:10,13,23
53:20 56:6,9,14
63:22,24 64:23
76:1 77:17 79:21
88:6 96:2 101:10
101:11 102:4,5
103:21 104:23
109:9 115:12
117:1 122:11
126:3 128:4 132:1
132:3,7 137:11
155:21 161:13
167:14 169:4,16
theme 14:5,11 65:10
themed 70:6
themes 14:11
themselves 106:22
they'd 156:19
thing 20:10,20 26:6
27:10 39:15,24
52:7,20 54:15
57:10 65:9 68:5
85:10 88:4 89:13
100:23 102:2
103:18106:15
107:20109:16
110:24 111:18
116:21 120:7
127:20 133:15
134:4 138:2
139:15 140:8
144:16 151:1
154:8 164:16
168:5
things 20:15 24:21
38:25 39:24 49:6,7
56:12 72:12 75:6
97:14 98:11
120:24 137:15
141:25 153:17
think 11:16 16:5,21
17:19 24:22,23,24
26:5 27:3 28:8
34:17 36:5 38:8,8
38:21 40:12 46:5
48:12 49:25 50:2
53:9,10 66:20 67:6
72:22 74:10 75:4
75:19 76:5 77:18
79:20 80:15 89:1a
90:10 93:15 96:2
97:25 99:3,16
100:24 101:3
102:2 103:9,14
104:1 105:7
106:17 109:8
112:23 116:23
117:17 118:4
119:19,25 121:12
123:15 126:6
132:16,19,20
133:21 142:11,11
142:13 143:20
147:6,8 156:1
159:4,7,8,20 160:2
160:22 162:9
164:24 169:13
thinking 38:23 49:20
65:3,4 89:4 90:22
98:6 102:9 110:16
138:24,24 168:5
Page 187
third 51:21,22,25
52:3 107:14,15
126:3 133:2
though 27:13 70:19
76:5 81:8 94:12
110:15 136:24
142:15
thought 14:8 28:12
28:16 119:25
121:11 148:5
150:8 153:20
thoughts 26:3
three 8:13 10:22
12:25 29:24 31:25
48:3,6 50:5 58:8
63:8,12 76:2 89:14
90:11 93:2 95:18
98:12 101:5,15
106:2 107:6 126:2
128:14 147:5,9
163:5
three-mile 79:14
three -sided 68:5
three-story 32:11
105:19106:1,21
threshhold 146:16
threw 34:11
through 1:13 2:12
17:17 19:9 27:23
28:22 30:14 64:5
87:3 97:8 105:13
132:5 147:19
148:6
throughout 13:2
thumb 120:16
thursday 1:20 2:23
7:1
tie 32:25 65:13
time 11:23 21:17
22:2,24 26:25
33:25 36:23 39:2
49:4 60:24 86:19
89:10 91:19 101:9
104:18 112:2
116:16 126:18
132:9 136:22
137:1 141:24
144:24 148:8
156:5 166:16
times 8:12 33:12
57:7 61:14 66:9
95:25
Tina 150:16
tiny 114:7
tire 65:18 102:5
142:10
title 15:20,22,24
titles 75:8
today 8:23 9:10,13
18:14,21 34:4 35:9
38:24 40:9 48:16
108:22 139:4
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
146:14 147:3
171:7,25
together 21:19-
133:20136:18
143:21 152:25
160:3 164:10,14
165:18
told 65:21,21,22,24
65:24 100:8 146:2
Tom 13:23 14:1,7,12
15:1 18:3 86:17
111:3 130:3
141:16 151:11
tomorrow 125:17
top 107:21 132:23
topic 149:4
total 105:5
totalling 31:4
totally 119:12
touch 108:12
tough 129:10
towards 61:8 62:14
68:12
towers 126:1,2
town 28:1
Toys 159:19
traffic 77:16,23,23
78:2,3,5,9 79:13
81:5 83:3 84:14
88:3,4146:11
148:11
trail 163:3
transcript 9:3,4
171:11
transitioning 36:23
Transmission 4:22
4:23 5:22
transmittals 36:2,23
37:2 48:13 71:19
transmitting 29:25
115:20' 129:19
130:16 153:6
155:19158:8,17
165:11 170:13
transportation 43:21
79:25 106:19
trees 160:14
Tricia 35:21-
tried 88:20t,
trip 77:23 MI .
trouble 137:16r
truck 104:5137:1-
trucks 1023,
true 70:14
trust 88:22
truth 8:25,25
try 14:11 23:22
26:10 30:11,14
31:17 39:3 42:24.
46:18,22 67:9,12
76:6 88:2191:2
94:21 156:19
trying 31:18 32:6,10
33:14 39:15 40:25
42:13 52:25 56:11
65:10 67:3 70:16
70:21 72:12 75:5
77:21 78:2,3 81:22
98:19 107:1 117:5
142:3 160:14
169:13
Tsutsui 2:21
tuchman 2:24 3:3
tune 56:13
turn 98:24
Tustin 8:211:4,5
two 10:10,22 26:10
30:17,22 31:5,25
35:21 37:9 42:18
48:3,6 50:5,22
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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)ILIO.& ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, 07.27.00-
BURLIN% ,ON V. HUNTINGTON CENTER
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
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FRANK CODA, 07.27.00
BURLINGTON V. HUNTINGTON CENTER
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FRANK CODA
c/o GREENBERG, FARROW ARCHITECTURE
ENGINEERING DEVELOPMENT
5101 Red Hill Avenue, Suite 200
Tustin, CA 92780
RE: BURLINGTON COAT FACTORY vs. HUNTINGTON CSNTSR
Dear Mr. Coda,
Enclosed is the original of your deposition. Please read it, make any
corrections or changes by putting a single line through the words to be
corrected in ink and inserting any changes directly above. n&UN
INITIAL EACH CHANGS.
After reading and correcting your deposition, please do one of the
following:
Sign your deposition before any Notary Public in
his/her presence.
_XX_ Read and sign your deposition under Penalty of
Perjury. Then send your transcript to Mr. Cohen.
Your immediate attention to this matter will be greatly appreciated. If you
have any questions, you should contact your counsel.
Very truly yours,
Julie Bell
Jilio & Associates
cc: Loren Cohen
Alan J. Watson
JB/jd
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ORANGE
3
4
5 BURLINGTON COAT FACTORY WAREHOUSE )
OF HUNTINGTON BEACH, INC., a )
6 California Corporation, )
7 Plaintiff, )
8 vs: ) Case No.
OOCCO6309
9 HUNTINGTON CENTER ASSOCIATES, )
a Delaware Limited Liability ) VOLUME 11
10 Company; EZRALOW RETAIL PROPERTIES,) (Pages 165 - 324)
a Delaware Limited Liability )
11 Company; THE EZRALOW COMPANY, a )
Delaware Limited Liability Company, )
12 and DOES 1 through 10, inclusive, )
13 Defendants. )
)
14
15
16
17
18 DEPOSITION OF:
19 DAVID C. BIGGS
20 FRIDAY, JULY 28, 2000
21
22
23
24
25
165
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA.
2 FOR THE COUNTY OF ORANGE
3
4
5 BURLINGTON COAT FACTORY WAREHOUSE )
OF HUNTINGTON BEACH, INC., a )
6 California Corporation, )
7 Plaintiff, )
8 VS. ) Case No.
OOCCO6309
9 HUNTINGTON CENTER ASSOCIATES, )
a Delaware Limited Liability ) VOLUME U
10 Company; EZRALOW RETAIL PROPERTIES,)
a Delaware Limited Liability )
11 Company; THE EZRALOW COMPANY, a )
Delaware Limited Liability Company, )
12 and DOES 1 through 10, inclusive, )
13 Defendants. )
14
15
16
17
18
19 The Deposition of DAVID C. BIGGS, taken on behalf
20 of the Plaintiff, before Amy Saylor, Certified Shorthand
21 Reporter No. 11560, Registered Professional Reporter, for
22 the State of California, commencing at 2:09 p.m., on
23 Friday, July 28, 2000, at the Law Offices of Aviv L
24 Tuchman & Associates, located at 3435 Wilshire Boulevard,
25 30th Floor, Los Angeles, California.
166
1 APPEARANCES OF COUNSEL:
2 FOR THE PLAINTIFF:
3 AVIV L TUCHMAN & ASSOCIATES
BY: AVIV L TUCHMAN, ESQ.
4 3435 Wilshire Boulevard
30th Floor
5 Los Angeles, California 90010
(213) 385-8000
6
7
8 FOR WITNESS DAVID C. BIGGS-
9 KANE, BALLMER & BERKMAN
BY: R. BRUCE TEPPER, ESQ.
10 515 South Figueroa Street
Suite 1850
11 Los Angeles, California 90071
(213) 617-0480
12
13 FOR THE DEFENDANTS:
14 WHITMAN, BREED, ABBOTT & MORGAN, LLP
BY: ALAN J. WATSON, ESQ.
15 633 West Fifth Street
Twenty -First Floor
16 Los Angeles, California 90071
(213)896-2512
17
18
19
20
221
2
23 1
24
25
1
2
3
4
5
6
7
8
INDEX
EXAMINATION BY
MR. TUCHMAN —
EXHIBITS
Page
5
167
Page
9 Plaintiffs Description Marked
10 137 Document entitled "The Crossings 238
at Huntington Beach"
11
138 Specific Plan No. 12 285
12
139 Request for Redevelopment Agency Action 317
13
14
15
16 INFORMATION REQUESTED
17 (None.)
18
19
20 WITNESS INSTRUCTED NOT TO ANSWER
21 PAGE LINE
22 308 18
23
24
25
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Friday, July 28, 2000; 2:09 p.m.
Los Angeles, California
DAVID C. BIGGS,
called.as a witness by and on behalf of the
Plaintiff, and having been first duly sworn by
the Certified Shorthand Reporter, was examined
and testified as follows:
FURTHER EXAMINATION
BY MR. TUCHMAN:
Q. Okay. Mr. Biggs, do you have any changes or
additions to anything that you testified to a couple days
ago?
A. No.
Q. Okay. Have you talked about your deposition with
anybody since a few days ago?
A. Since the deposition?
Q. Yes.
A. Yes, just in general
Q. Who did you talk to?
A. Let's see, my secretary, my wife, let's see,
Gus Duran. We sort of talked about our experiences
jointly. Let's see, Mr. Kane, Mr. Tepper's firm. That's
169
probably about it.
Q. What did you discuss with Mr. Duran?
A. How to get here, you know, the pleasant
experiences being interviewed by you, just generally that
kind of thing. We didn't talk about any specifics about
the deposition.
Q. Did Mr. Duran tell you what questions I asked
him?
A. No, not that I recall.
Q. Did you discuss the answers that you had of your
deposition?
A. No.
Q. When you say your secretary, do you mean Bobbie
or is there someone else?
A. Linda. -
Q. We were talking about Exhibit 7 before. Do you
have the.— we were talking about Exhibit 7 before, which
is the June 5th memo. And I just have a few follow-up
questions on it.
A. Sure.
Q. Do you know who typed it?
A. No, not offhand. I think that was the response I
gave last time.
Q. I did not ask who typed it up. Do you recognize
the computer from which it was generated?
170
r
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON�
1 A. No.
2 Q. Did you type up Exhibit 7?
3 . A. I don't recall. I don't believe so.
4 Q. Okay. Did you type up — the first time that you
5 saw that exhibit, on what day?
6 A. I don't recall.
7 Q. Okay. Let me have that back, please. Do you
8 know if Exhibit 7 was authored by Kane, Ballmer?
9 A. I don't recall. I don't know offhand.
10 Q. Do you have any knowledge of who authored the
11 memo?
12 A. No, not — I don't have any clear recollection of
13 it. I was actually out of town, I think, of the days
14 leading up to its preparation.
15 Q. When did you fast learn of the memo?
16 A. I don't recall specifically.
17 Q. Take a look at Exhibit 15. Exhibit 15, the last
18 page is the June 5th memo, and it has a little bit of
19 writing in parentheses. It says "G: JM." Do you recognize
20 this code?
21 A. Where is that? .
22 Q. Bottom of page 3 of Exhibit 15.
23 A. No.
24 Q. Do you recognize the initials J.M.?
25 MR. WATSON: You're talking about the footer on
171
1 the bottom?
2 MR. TUCHMAN: Yes.
3 THE WITNESS: Not specifically, no. I mean,
4 there's a City attorney named Jennifer McGrath. Jane James
5 used to be Jane Madera, so I don't know if those are her
6 initials or not.
7 BY MR. TUCHMAN:
8 Q. Does this come from a City -generated server, this
9 reference?
10 A. I couldn't tell you, so there's nothing in there
11 that would indicate one way or the other. I don't know
12 offhand if it is or not.
13 Q. Did you ever ask anybody -- ask anybody who
14 authored Exhibit 7?
15 A. I don't recall.
16 Q. Okay. Did you ask -- did you talk to Mr. Silver
17 about his deposition?
18 A. No, his deposition was after mine. We missed --
19 we didn't talk until the next day.
20 Q. Did you talk about the deposition?
21 A. Oh, yes, just in generai, how it went and how
22 long this was; you know, what time did he get to leave.
23 Q. Did you discuss Exhibit 7, the June 5th memo?
24 A. No.
25 Q. Did you discuss the fact that he stated he didn't
172
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author it?
A. No.
Q. Did you know he didn't author it?
A. Oh, I knew he didn't author IL
Q. How did you know that?
A. Well, we discussed it prior to the depositions.
Q. Well, what did you discuss about it?
A. Pardon?
Q. What did you talk about with him?
A. I just knew he hadn't authored IL
Q. Did he tell you who authored it?
A. No, he didn't.
Q. Are you aware if Mr. Silver knows who authored
the June 5th memo, which is Exhibit 7?
A. He might. I don't recall who authored it, so I
don't know whether he does or not. We've not specifically
discussed that.
Q. Did Mr. Duran tell you that someone from Kane,
Ballmer authored Exhibit 7?
MR. TEPPER: Oh, that's a misleading statement,
and that's -- Mr. Duran didn'tsay anything such thing, so
ask another question, sir.
BY MR. TUCHMAN:
Q. You can answer the question:
A. No, not that I'm aware of. I don't recall
173
discussing it with him specifically.
Q. Did anybody at the City say to you, Mr. Biggs,
that the memo which is Exhibit 7, the June 5, 2000, memo,
was authored by a member of Kane, Ballmer?
A. Not that I recall.
Q. Okay. We were talking about when the agency is
an applicant and not an applicant. Is there ever an
instance where the City is not an applicant for a specific
plan?
A. When It's not in a redevelopment project area.
Q. Okay. Any other instances?
A. When the agency is not an applicant for a
specific plan?
Q. Correct.
A. Not that I'm aware of
Q. Okay. And just so I have your title right,
you're the Director of the Economic Development Department
for the City of Huntington Beach? .:
A.- Yes
Q. Okay. Back to Exhibit 15, we did not cover that
in your deposition.
MR. TUCHMAN: Do you have a copy or do you need
another one?
MR. TEPPER: I have one.
174
1- BY MR. TUCHMAN:
2 Q. Do you recognize Exhibit 15?
3 A. No.
4 Q. Okay.
5 A. The attachment I do.
6 Q. The third page I went over extensively. Did you
7 ever see the cover sheet which says, "To Mr. Scott Dinovitz
8 from Jane Madera"?
9 A. Not that I recall.
10 Q. Okay. And did you have a discussion with
11 Scott Dinovitz, paren, June 7 and June 9, 2000?
12 A. June 7 and June 9, 2000, not that I recall.
13 Q. Okay. Do you know why this memo was sent to
14 Scott Dinovitz from Jane Madera?
15 A. No.
16 Q. Did you ever discuss why Jane Madera, who is now
17 Jane James, sent any memos to Scott Dinovitz regarding who
18 is the applicant on the specific plan?
19 A. Could you repeat the question?
20 Q. Please read the question back.
21 (Whereupon the previous question was read
22 back by the court reporter as requested.)
23 THE WITNESS: When you say "discussed,"
24 discussed with whom?
25 /// .
175
1 BY MR. TUCHMAN:
2 Q. Discussed with Scott Dinovitz or anyone from
3 Ezralow?
4 A. No, not that I recall.
5 Q. The memo says, "Please read the attached memo
6 regarding applicant status for Specific Plan No. 13.
7 Please be aware that Ezralow is no longer considered as
8 applicant for the zoning map and zoning text amendments."
9 Were you aware that prior to June 7, 2000, the
10 date on Exhibit 15, that Ezralow was the applicant for the
11 zoning map and zoning text amendments?
12 A. Yes, Ezralow would have been one of the
13 applicants.
14 Q. And the other applicants were?
15 A. The City and the Redevelopment Agency.
16 Q. Okay. Do you know why Ezralow was no longer
17 considered an applicant for the zoning map and zoning text
18 amendments after the date of this memo, which is June 7,
19 2000?
20 A. Yes. As we discussed prior to this, again, the
21 City wanted to proceed with the consideration of a specific
22 plan. In mindful of the litigation you had filed, we
23 thought it was the best course of action to reserve our
24 rights to the specific pion.
25 Q. It was best to preserve your rights to ensure the
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1 restraining order wouldn t be entered?
2 MR. TEPPER: That's argumentative. You don't
3 have to answer that.
4 THE WITNESS: It's all right. Ne got to get
5 back in the swing of things.
6 MR. TEPPER: I understand.
7 BY MR. TUCHMAN:
8 Q. Now, why was Ezralow taken off?
9 MR. TEPPER: Asked and answered.
10 THE WITNESS: Ezralow wasn't taken off.
11 Ezralow — we just clarified that the City and
12 Redevelopment Agency were applicants as well.
13 BY MR. TUCHMAN:
14 Q. Why was clarification needed?
15 A. Why was clarification needed?
16 Q. Yes.
17 A. Again, the City wanted to ensure it could proceed
18 with its consideration of the specific plan.
19 Q. But if you were already the applicant, why was
20 clarification necessary?
21 A. Again, as we talked about last time, just to
22 ensure we didn't have any difficulties ruing out of the
23 third party litigation.
24 Q. Okay. And that would be the suit between Ezralow
25 and Burlington?
177
I A. Yeah, it would be — the suit that Burlington
2 Brought against Ezralow would be one example.
3 • . Q. Now, if this clarification was necessary, was
4 there a concern on your part or anyone at the City that the
5 SP would not go through without the clarification?
6 MR. TEPPER: Objection. As to anyone else other
7 than the witness, that would call for speculation.
8 BY MR. TUCHMAN:
9 Q. You could answer the question.
10 A. Could you repeat the question?
I Q. Certainly. If the clarification wasn't set forth
12 in Exhibit 15, was there a concern that the SP would not go
13 through, that it would be stopped?
14 A. Well, it may have, but it wasn't an overriding
15 consideradom Again, we just wanted`to ensure we wouldn't
16 have any problems. It was, in effect, as we talked about
17 last time,-doabie-crossing the T's and double -dotting the
l8 I's.
19 Q. So were you concerned, though, that if you
20 didn't have the clarification, which is Exhibit 15, that
21 the specific plan and the submission of it would be
22 stopped?
23 A. Not any more so than any other projects we're
24-- working on when there's some level of controversy, either
25 internally or externally, associated with it.
178
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 Q. Okay. Who has the authority to make the City and
2 the Redevelopment Agency co -applicants for the City plan?
3 A. That would be the question for you to best ask of
4 Howard Zelefsky, the Planning Director.
5 Q. Do you know the answer?
6 A. Pardon?
7 Q. Do you know the answer?
8 A. I believe it is, you know, that the City -- that
9 as we've always done, my understanding -- I haven't been
10 here for every specific plan, but the specific plan is
11 generally always viewed as being City -initiated.
12 Q. But what person has the authority to make the
13 City and Agency co -applicants when it was not
14 City -initiated?
15 MR. TEPPER: Excuse me. That assumes a fact not
16 in evidence that the City was not the — that this was not
17 a City -initiated specific plan.
18 BY MR. TUCHMAN:
19 Q. You can still answer the question.
20 MR. TEPPER. If you understand the question.
21 THE WITNESS: Well, you know, I believe it was
22 City -initiated. The Redevelopment Agency was always a
23 co -applicant, even when Macerich was, again, the
24 applicant -- one of the applicants in the earlier version.
25 And, you know, the specific plans quite often are
179
l required, for example, in this instance under the City's
2 general plan, so we believe there wasn't any specific
3 authorization required because Council of the general plan
4 required preparation of the specific plan for the area.
5 And so it's just during the normal course and duty of
6 appropriate City staff.
7 Q. All right- You testified that you recognize
8 Exhibit 8; is that correct? That's the application.
9 A. No, I testified I had never seen that, so —
10 Q. When the City initiates — well talk to
11 Mr. Zelefsky. about it then.
12 When the City initiates, as we were talking
13 about, a specific plan, does it fill out an application
14 like Exhibit 8?
15 A. No. Usually, as I understand, the City does not
16 fill out an application.
17 Q. What's the process?
18 A. Well, we just approved a contract for a specific
19 plan for the Edinger Corridor area. We'll simply start to
20 work on it with our consultant team, and it will eventually
21 be considered at public hearings before the Planning
22 Commission and City Council.
23 Q. Is there some writing where the process was
24 initiated that's similar to Exhibit 8 or any other type of
25 writing?
180
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BURLINGTON V. HUNTINGTON
1 A. Not that I'm aware of, no.
2 Q. So how does a person in the public sector know
3 that there's been a specific plan initiated by the City or
4 the Redevelopment Agency?
5 A. They would be given notice at an appropriate time
6 as either — either as just an interested party or a
7 property owner, once there is a draft of a specific plan.
8 And really their option to participate is in the public
9 hearing process.
10 MR. TUCHMAN: Can I have that answer read.
11 (Whereupon the previous answer was read
12 back by the court reporter as requested.)
13 BY MR. TUCHMAN:
14 Q. Okay. Was there such a notice in connection with
15 the Huntington Center that was issued by the City or the
16 Redevelopment Agency?
17 A. I believe so. At the time there was the public
18 hearing notices that went out, certainly.
19 Q. And the applicant was listed as the City and the
20 Redevelopment Agency?
21 A. I don't know offhand who the applicant was listed
22 as.
23 Q. Is there any other documentation besides the
24 notice that you discussed a moment ago indicating that the
25 City or the Redevelopment Agency when they're initiating a
181
1 specific plan — is there any type of writing indicating
2 that?
3 A. You're talking generically about any specific
4 plan?
5 Q. In a redevelopment zone, correct.
6 A. I can just use the current example or also the
7 downtown specific plan. You know, sometimes through those
8 efforts, we will — you know, in the case of the Edinger
9 Corridor specific plan, we built in some early workshops
10 that we'll do using a facilitator, bringing in property
11 owners in the area. I don't know if It necessarily will be
12 something that will be public noticed, but we'll probably
13 mail a letter to property owners in the area inviting them
14 to a series of two or three workshops. It depends on how
15 the specific plan is being processed. It's not a mandated
16 element.
17 Again, really, my understanding is the only legal
18 requirement is the time thai we do the public hearing, and
19 people within the specific plan area are sent a mailed
20 notice and then also a legal notice appears in the paper.
21 That's the only legal requirements for notification. And
22 it depends on the project as to how the City will proceed.
23 The case of the Edinger Corridor plan, we have
24 built into the scope of work -- well, not mandatory
25, elements at all these three workshops that we'll invite
182
1 people to, but there's no technical requirement until
2 further on that there — in regards to a specific plan
3 being prepared until later in the process.
4 Q. I'm not talking about notification now. I'm
5 talking about initiating the process where the specific
6 plan is going to be drafted from the ground up.
7 A. To the best of my knowledge, there is no legal
8 requirement for that.
9 Q. Okay. We're not talking about notice now. We're
10 only talking about an application, and perhaps Mr. Zelefsky
11 is the best suited, and you need to tell me that, but
12 you're here as the Director of the Economic Development
13 Department. You're also here as the Person Most
14 Knowledgeable from the Redevelopment Agency. And what I'm
15 trying to find out is that when there's a City -initiated
16 specific plan within a redevelopment zone, is there an
17 application process from looking at Exhibit A?
18 A. No, I don't believe so. And, also, I think the
19 same thing, for example, if the City initiates a general
20 plan amendment, which quite often the City does, the City
21 does not eke its own application for processing the zoning
22 text amendment or a change amendment, so —
23 Q. What is your understanding that the first piece
24 of paper is relative to a specific plan in a redevelopment
25 area when the project is City -initiated or Redevelopment
183
1 Agency -initiated? What's the first piece of paper?
2 A. I don't know offhand what would be the first
3 piece of paper. It could very well be a memo from the
4 Planning Director assigning the staff to work on it.
5 Again, I don't know -- I don't understand your question
6 really of when you're saying the first piece of paper.
7 Quite often during the course of the duties of
8 the staff, we initiate all !finds of activities; planning,
9 Economic studies, or just built in the scope of work or
10 what's budgeted in our budget as far as undertaking
11 activities, doing market studies on sites, you know, those
12 kinds of things, we just do during the normal course of
13 business. There's not necessarily an application file
14 that's occurring.
15 Q. Have you, as Director of the Economic Development
16 Department and the Person Most Knowledgeable from the
17 Redevelopment Agency, have you acted in any capacity to
18 sign a memo or directive indicating that the Economic
19 Development Agency or the -- Department or the
20 Redevelopment Agency is the applicant for the specific plan
21 at the Huntington Center?
22 A. We did -- I did send -- did sign -- actually, I
23 don't remember. I think we did sign a letter at the time
24 that Macerich filed their initial application for the
25 specific plan that said we were going to be the
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co-appaculL
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Q. And that's a letter to whom?
2
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A. Let's see, I think it was a letter or memorandum
3
4
to the Planning Director.
4
5
Q. Did you do one in this case with Ezralow?
5
6
A. No.
6
7
Q. Why did you not do such a letter in the case of
7
8
Ezralow?
8
9
A. It is our belief that the prior letter, that this
9
10
was just a continuation o4 in effect, the previous draft
10
11
of the specific plan.
11
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Q. Why is it that that's your belief? What is that
12
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based on? Is there a code or someone told you that?
13
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A. No, just from discussions with the Planning staff
14
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that it wasn't necessary.
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Q. Who at the Planning staff told you it was not
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necessary for you to, over at the City or the Redevelopment
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Agency, re -author a memo or something in writing indicating
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that you would be the co -applicant for the SP when Ezralow
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took over?
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A. I don't recall specifically. I think it probably
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occurred in one of the general project meetings that occur,
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but I don't recall specifically.
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Q. What's a project meeting?
24
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A. Well, it's the same thing you showed me a number
25
185
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of times. The agenda from the project meeting, for
1
2
example, on The Crossings, the specific plan, the one that
2
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Jane James prepares.
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Q. Do you normally attend those project meetings?
4
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A. No, not normally, but I do occasionally.
5
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Q. Those agendas that are italicized with the City
6
7
symbol up in the left?
7
8
A. It says, "The" -- I think it says "The Crossings"
8
9
at the top and lists the planning and technical issues for
9
10
the discussions —
10
11
Q. Okay.
11
12
A. -- what we discussed the other day.
12
13
Q. Good. Did -- back at Exhibit 7 and the last page
13
14
of Exhibit 15 -- this is Exhibit 7 here.
14
15
A. RighL. —
15
16
Q. Did you know of this memo -- did you know of this
16
17
memo's existence before Mr. Silver got it?
17
18
A. I don't recall if the first time I chatted with
18
19
him about it was before or after he had seen it.
19
20
Q. Who is the first person at the City you talked
20
21
about with respect to the June 5tb memo?
21
22
A. I don't recall.
22
23
Q. Do you know who the initial applicants for the .
23
24
SP were?
24
25
MR. TEPPER: Which SP are we talking about?
25
186
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON -
MR. TUCHMAN: SP-12.
THE WPI'NESS: Okay. Would you repeat the
question?
BY MR. TUCHMAN:
Q. Yeah. Do you know who the initial applicants
were on the SP-12?
A. From my perspective, it was the City,
Redevelopment Agency, and Macerich.
Q. And do you know who the initial applicants were
on the SP-13?
A. No, I think— again, I think that's just
Iterations of the same specific plan, referring to draft
numbers, but I'm not certain.
Q. Was Ezralow or any one of its related entities or
Mr. Dinovitz or any individuals affiliated with Ezralow
ever the applicant for the SP for the Huntington Center?
A. Were they ever?
Q. Yeah.
A. Yes, I think they were viewed as being a
co -applicant with the City and the Redevelopment Agency
from the inception.
Q. As you sit here today, is that your same view?
A. Is it my same view? My view — no, I think
technically at this point in time from the Plannhtg
perspective, they view the applicant as being the City and
187
the Redevelopment Agency.
Q. So as far as you're concerned, as the director of
the Economic Development Department and as the Person Most
Knowledgeable from the Redevelopment Agency, no one from
Ezralow or none of the Ezralow-related entities are the
applicant for the specific plan?
A. I think technically that's true at this point.
Q. Well, when you say "technically," that means in a
way they still are. What do you mean by "technically"?
A. I think it means that, you know, we still consult
with property owners in preparation and consideration of
the specific plan. So I don't want you to assume that that
means that there's not — that we don't -- for example, as
it goes through the public hearing process and Ezralow
appears for the public hearing and says they'd like to have
a drive -through, even though the staff isn't recommending
it, much to the same degree that Montgomery Ward's has
specific comments about sections of the specific plan,
that, you know, that by "applicant," meaning that they
don't have an interest in the consideration approval of the
specific plan. They do, but technically they're not the
applicant.
Q. When you say they have an interest, is it going
to be the Redevelopment Agency and the City of
Huntington Beach that pulls permits, or will it be Ezralow
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1 or one of its entities?
2 MR- TEPPER: Objection. Relevance. Permits?
3 The relevance of permits to the general plan application or
4 the specific plan application?
5 THE WITNESS: The specific plan being adopted
6 doesn't necessarily mean anyone will be pulling permits
7 and, it could be any property owners or future property
8 owners. It's usually not likely the City because we're not
9 developing property in the downtown area.
10 The City initiated and approved a specific plan
11 covering hundreds of properties in the downtown area, and
12 under the context of the specific plan, individual property
13 owners come in and pull permits when specific plans — in
14 conformance of the specific plan.
15 You know, it's like asking the question of who
16 will pull permits when the City adopts the general plan and
17 the zoning Code. The City sometimes pulls permits if it's
18 doing development itself; but if not, it still adopts the
19 general plan and Zoning Code, and individual property
20 owners pull permits after they go through a subsequent
21 process in the future as long as what they're proposing is
22 in conformance with the general plan and the zoning, or in
23 this instance, the specific plan.
24 Q. I understand your answer, but I still want an
25 answer to my question. And my question is: Is -- does the
189
1 City or the Redevelopment Agency, assuming you have an
2 approved specific plan, going to be responsible for pulling
3 permits?
4 A. They could.
5 MR. TEPPER: No. The question is a legally
6 non-sensical question because the agency doesn't own
7 property and cannot pull permits in an area in which it
8 does not own property.
9 . THE WITNESS: I'll give you an example. We own
10 the site -- this was —
11 MR. TEPPER: And were talking about the
12 Huntington Center? .
13 THE WITNESS: Okay. III limit it to Huntington
14 Center. We own a site just north of Huntington Center, but
15 it's not a specific plan area.
16 BY MR. TUCHMAN: —
17 Q. Okay. If I want to pull a demo permit at
18 Huntington Center, you're not going to send Gus Duran down
19 to pull a permit?
20 A. No, I would not, no.
21 Q. And you're not going to pull the permit?
22 A. No.
23 Q. Who pulls the permit for the demo of the
24 property?
25 A. Whoever would like to demolish the property. It
190
1 could be a property owner. It could be a tenant. If
2 someone wants to demolish Burlington. if they want to
3 demolish interior walls to make tenant improvements, they
4 would go, come and pull a building permit in the context of
5 the specific plan.
6 Q. Well —
7 A. So whoever wants to do the work has to pull the
8 permit.
9 Q. Okay. Well, you've seen the specific plan;
10 right?
11 A. Right.
12 Q. Okay. It requires in some form or fashion,
13 whether you take one alternative or the other alternative,
14 significant demolition out there; right?
15 A. When and if someone ever decides to proceed with
16 the project, yes.
17 Q. That's right.
18 A. Essentially.
19 Q. Right. And before you knock down any walls or
20 any buildings, you have to pull a demolition permit; right?
21 A. Right, or remodel existing buildings, yes.
22 Q. And is it Ezralow that will be pulling those
23 permits and making those determinations?
24 MR. WATSON: Objection. Speculation.
25 THE WITNESS: Maybe, maybe not. There have been
191
1 specific plans adopted where there's been subsequent .
2 property owners who have pulled permits. Whoever owns
3 property at that point in time proposes any sort of
4 development, remodeling, wants any sort of permits through
5 the City's discretionary permitting process, they have to
6 get those permits in conformance with the specific plan.
7 BY MR. TUCHMAN:
8 Q. Okay. After a specific plan is approved, in
9 addition to pulling the demolition permits, what other
10 parts of the processes are there?
11 A. Well, people would have to pull building
12 permits. They might have to get subsequent entitlements.
13 It depends on the specific plan. If their plans meet the
14 specific plan criteria; for example, in the McDonald's
15 Center Business Park area, they only had to do -- as long
16 as the plans that they submitted conformed to the specific
17 plan guidelines, they just had site plan review at the
18 staff level, and then building permits were issued. So it
19 depends on the specific plan.
20 Quite often, it has a specific -- one reason to
21 do the specific plan is in order to provide for a few
22 little expedited consideration of future proposed work on
23 the site.
24 Q. A specific plan is just general guideline, it's
25 not a blueprint; correct?
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I A. No. It's — as long as someone comes in — you
1
2 know, the specific plan will say, "Buildings have to be set
2
3 back 10 feet from the street" As long as the building is
3
4 set back 10 het from the street, meets the design
4
5 guidelines, meets all the Building Codes, then there may
5
6 not be a subsequent discretionary process other than just
6
7 checking that it conforms with the specific plan and zoning
7
8 and Building Code.
8
9 Q. Is it the role or will it be the role of the
9
l0 Redevelopment Agency and the City of Huntington Beach to
10
11 pull building permits in conformity with the specific plan?
11
12 A. If we're a property owner, yes, then we would
12
13 have to.
13
14 Q. Are you currently a property owner at Huntington
14
15 Center?
15
16 A. No, we're not
16
17 Q. So as of right now, who has the right to pull
17
18 building permits over at the Huntington Center?
18
19 A. Any of the property owners or tenants.
19
20 Q. And who would those people be?
20
21 A. Southern California Edison, SCE — actually,
21
22 that's the name; Montgomery Ward; Ezralow or Huntington
22
23 Centers LLC, any of the tenants that are there; Macaroni
23
24 Grill; Burlington; Circuit City; Zany Brainy, Order — no,
24
25 it's Barnes & Noble.
25
193
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON-
use that's being amortized out. So, you know, that was
probably -- in effect, if the specific plan has any impact
on development, that would probably be one of the first
occurrences to occur without someone taking some
discretionary action to do something, and the center can
sit the way it is for ten years other than that.
Q. What entitlements has Ezralow asked for from the
City?
A. I don't know at this point.
Q. Is that question better suited to ask somebody
else or is it just premature?
A. I think it's just premature because they wouldn't
apply for any entitlements until the specific plan was in
place. It doesn't do any good to apply for entitlements
now when there will be a specific plan and they'll replace
the current Zoning Code there in a matter of weeks.
Q. I'm sorry. What did you say is going to happen
in a matter of weeks?
A. Well, in effect, the specific plan will replace
the general Zoning Code for that part of the city.
Q. Hasn't that already occurred?
A. Well, no. Technically, it has because the
specific plan is being reconsidered on the 7th_of August to
make a change to it, and then depending on how it's being
adopted, I don't know if it goes into effect after that
195
1
Q. And is that the same answer with respect to
1
occurs or if it requires 30 days or the exact timing.
2
anybody who wants to pull a demolition permit?
2
Howard could better answer that
3
A. Yes, I believe so.
3
Q. Zelefsky?
4
Q. Okay. Now, you mentioned "entitlement." What's
4
A. Uh-huh.
5
an entitlement?
5
Q. Is that a "yes" — is that a "yes"?
6
A. An entitlement is considered a right to actually
6
A. Yes.
7
proceed with, you know, construction, demolition, grading..
7
Q. Is the reconsideration — Zelefsky is
8
It's where the City grants the permits necessary to allow
8
Z-e-1-e-f-s-k-y.
9
those types of activities to occur.
9
The reconsideration, that has to do with the
10
Q. Does Ezralow have any of these entitlements
10
drive-throughs?
11
granted to it?
it
A. Yes.
12
A. At this point in time for a specific project?
12
Q. Are there any other reconsiderations being
13
Q. Yes.
13
considered?
14
A. No, I don't believe so.
14
A. Not that I'm aware of:
15
Q. Okay. And have they appliedfor such
15
Q. Now, you were talking the other day about
16
entitlements from the City?
16
Jim Lamb. His title is Business Development?
17
A. I don't believe so.
17
A. He's a development project manager that oversees
18
Q. Do you contemplate that they will apply for such
18
the Business Development Division.
19
entitlements?
19
Q. All right. Do you know what his familiarity is
20
MR. WATSON: Objection. Speculation.
20
with the Huntington Center?
21
THE WITNESS: Well, any of the property owners or
21
A. Really, his only role has been as existing
22
tenants will be able to conform with the specific plan.
22
tenants have moved from there, we've been making referrals
23
For example, the specific plan, if it's adopted- finally
23
to other sites for some of the tenants who have left the
24.
adopted as being considered, finally adopted within three
24
inline shops in the mall.
25
years, Ward's has to remove their tire, auto, and battery
25
Q. You're his boss?
194 1 196
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
5
6
7
8
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lI
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8
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A. Yes.
Q. Did you give him any instructions relative to
displays that he was supposed to make at the Las Vegas ICSC
Convention?
A. Any instruction? We all jointly decided what
would go op on the display.
Q. What did you jointly decide would be upon the
display?
A. We just had conceptual renderings from a variety
of projects from throughout the City.
Q. Did you have renderings pertaining to Huntington
Centers -- Huntington Center?
A. Yes, I believe we d1d.
Q. And was that with Burlington's premises shown
intact or with it gone?
A. My recollection what we had up there wasn't
anything specific. It was sort of a plaza area so it
didn't really show — it doesn't make any assumptions in
that regard.
Q. And was that -- were you at the convention?
A. Yes. Yeah.
Q. Was that a color of material that was handed out?
A. We did hand out a general leasing flier that
Ezralow had; and, again, it didn't show any site plans that
I recall It sort of had a conceptual, you know, feel of
197
what the center might be.
Q. Did it say "Conceptual Site Plan"?
A. I don't recall.
Q. If it did -- what's a "conceptual site plan"?
A. For one, I don't believe it showed a conceptual
site plan. I talked about it showing a conceptual
rendering to give a sense of the flavor of what they were
trying to accomplish.
Q. Okay. What's a "conceptual site plan"?
A. A "conceptual site plan" is an illustration that
shows how a piece of property might be developed.
Q. Okay. Do you know who prepared those handouts
you were talking about in Las Vegas?
A. The one I was referring to?
Q. Yes.
A. It was prepared by the Faralow Company.
Q. Was there a sign for the Ezralow Company at the
Huntington booth?
A. A sign, I don't recaIL I don't believe so.
Q. Did you give —
A. There was a little label on a display that said
"Ezralow." I don't know. It said "The Crossings," so —
Q. Was there a sign for tenant information and a
contact at Ezralow?
A. I think, again, we just had their fliers up as
198
1 part of — I don't think there was a specific sign.
2 Q. Did you give instructions to any of the persons
3 that were in Las Vegas relative to what to say in response
4 to Burlington questions?
5 A. Not that I recall.
6 Q. Did you have a flier relative to how to handle
7 questions relative to Burlington?
8 A. Not that I recall
9 Q. Did you do a memo on the ICSC convention?
10 A. A memo, not that I recall, other than we include
11 in, like, the CA — City Administrator's weekly report
12 just that we're going to participating at ICSC,
13 highlighting a variety of projects taking place in
14 Huntington Beach.
15 Q. Did you — were you in possession or did you
16 display a videotape at the convention?
17 A. Yes, we did.
18 Q. And how many videotapes did you display?
19 A. We had two videotapes.
20 Q. And the two videotapes depicted what?
21 A. One was a general video, sort of about lifestyle
22 things at Huntington Beach, and the other was the
23 promotional tape that Ezralow had for The Crossings.
24 Q. Have you produced that tape today, sir?
25 A. No.
199
Q. Do you have a copy of that tape?
A. I don't have one in my possession at the moment,
3
no.
4
Q.
Do you know if anyone at the City has one?
5
A.
I think Jane has one, Jane James.
6
Q.
All right. Would you ask her to provide it to
7
you?
8
A.
No. If you would like to ask her, I think that
9
would be fine. I don't want to mix up who is responsible
10
for what documents.
11
Q.
Okay. Did you review that videotape?
12
A.
Yes, I did.
13
Q.
Did you approve of that videotape?
14
A.
You say "approve"?
15
Q.
Did you approve it to be displayed at the City of
16
Huntington Beach booth?
17
A.
Yes, I did.
18
Q.
Okay. Did you ask that any changes be made to
19
the videotape when it was presented to you?
20
A.
No.
21
Q.
How long before — when was the convention?
22
A.
May — I probably want to say about May 22nd.
23
Q.
Did you, prior to May 22nd, view the videotape?
24
A.
I don't recall if I viewed it before or after.
25
Having
listened to it about a thousand times at the
200
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i
convention, I don't remember if I saw it before or not.
1
2
Q. Okay. Did you discuss Burlington with Mr. Lamb?
2
3
MR. TEPPER: Objection as to time. Do you have a
3
4
time frame in mind?
4
5
MR TUCHMAN: Yeah, anytime.
5
6
THE WITNESS: I'm sure I have sometime during the
6
7
scope of the project.
7
8
BY MR. TUCHMAN:
8
9
Q. Okay. And what has Mr. Lamb said about it?
9
10
A. What has he said about it?
10
11
Q. Yeah.
11
12
A. I don't recall specifically.
12
13
Q. Did he discuss any comments that he may have made
13
14
at the ICSC?
14
15
A. Not specifically that I recall.
15
16'
Q. Were you aware that he was talking to various
16
17
retailers at the ICSC?
17
18
A. Certainly. We were all talking to various
18
19
retailers. That's what we're there for.
19
20
Q. Are you aware that Mr. Lamb made comments
20
21
relating to Burlington at the iCSC?
21
22
A. No, not offhand.
22
23
Q. Did you talk to him about anything he said about
23
24
Burlington at the convention?
24
25
A. Not that recall.
25
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON'
about the specific tenants at all in there. I think it
just shows, again, the same kind of generic rendering of
the feel they're proposing to create. I think that's
probably really about it in any formal sense.
Q. When you say — okay. Your website -- what's
your website?
A. It's HBBiz — B-i-z — .com.
Q. And then you said fliers at your office. Do you
mean the City Clerk's office or the EDD office?
A. In the Economic Development Department office.
Q. And that's the same color fliers you were handing
out at the convention?
A. Right.
Q. Are there any other places/locations where the
City of Huntington Beach or the Redevelopment Agency is
promoting The Crossings?
A. Not that I can r'ecaB.
Q. In the past, besides the ICSC, are there any
other locations, places, websites, magazines, where the
City has promoted The Crossings?
A. Not that I'm aware oL
Q. Does it surprise you or would it surprise you if
Mr. Lamb was telling people at the convention that
Burlington would not be included in the redevelopment of
the center?
201 1 203
1 Q. Has Mr. Lamb made the comments that Burlington is
1
A. Yes, because that determination hasn't been made
2 out?
2
yet one way or the other.
3 A. Not that I can recall.
3
Q. Okay. Previously, you testified that Macerich
4 Q. Well, would you agree with that comment?
4
was an applicant and you were a co -applicant on the
5 A. Not necessarily, no.
5
specific plan, and you said there was a written document
6 Q. Okay. Would you think that was a wise thing to
6
that indicated that.
7 say?
7
A. Yes.
8 A. A wise thing to say? I suppose that would be a
8
Q. Is that a letter or is that an application?
9 matter of judgment, and since I don't know whether he said
9
A. I recalled specifically a letter where we -- that
10 it or, not, I wouldn't want to speculate.
10
I had sent to Montgomery Ward's in that regard, and I don't
11 Q. Well, you're his boss; right?
11
recall if we actually signed an application or not.
12 A. Yes.
12
Q. And the letter you sent to Montgomery,Ward was .
13 Q. If he said that, would you criticize him for
13
addressed to Loren Holtman in 1998?
14 that?
14
A. '97 or'98. I don't recall the specific date,
15 A. That depends on the context -and discussion, and
15
but, yes, it was addressed to Loren Hohman.
16 so I don't — you know, I couldn't really make judgment
16
Q. Are there any other writings indicating that the
17 unless I know the specifics.
17
City of Huntington Beach and the Redevelopment Agency were
18 Q. Well, you didn't instruct him to say that?
18
co -applicants with Macerich other than this letter written
19 A. Nob
19
to Montgomery Ward in 1997 or 1998?
20 Q. Now, other than the ICSC, how is -- or where is
20
A. I don't recall. I haven't gone back and looked
21 the City of Huntington Beach or the Redevelopment Agency
21
at any tiles related to that time frame.
22 promoting The Crossings?
22
Q. Such documents, if they exist, have been provided
23 A. Let's see, well, we just have the same fliers in
23
to us though?
24_ _ our office. I don't know if they're up front or not.
24
A. I don't know offhand. We responded to the
25 There's a brief discussion on our website. It doesn't talk 1 25 specific requests you made regarding Burlington and
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Ezralow-
Q. Okay. You didn't include — you didn't instruct
anybody at your offices to exclude anything pertaining to
Macerich, is that correct? If we asked for Macerich, then
you told them to produce it?
A. Yes, sir, whatever you produced -- whatever we
produced is whatever you asked for.
Q. Do you know -- you mentioned last time that there
was -- you mentioned $10 million as the gap?
A. No, I used an illustration of $10 million as the
gap.
Q. Okay. Do you know what the range is going to be
at the gap?
A. Well, it depends ultimately on what is eventually
developed on the site, and since we don't know what that
is — I just also can use as a frame of reference with it
was when we were fairly far advanced with Macerich before
they started to sell the site, it would be, you know,
somewhere between 10. and $20 million, I'm anticipating.
MR. WATSON: Pm sorry. I wasn't here. What gap
21 were you guys talking about?
22 THE WITNESS: The question was, you know, how
23 will the Redevelopment Agency potentially be involved in
24 the project, and we were talking about how there will
25 probably be a gap, a financial gap, or the Redevelopment
�9�
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205
Agency will be a financial participant in the redevelopment
of the center.
MR. WATSON: Thank you.
BY MR. TUCHMAN:
Q. Based on your experience with the Macerich
situation, you believe it will be between the 10 and $20
million range?
A. Yes, that's my estimate.
Q. Okay. And I remember you said that the way that
that gap is made up is through the increase in real
property taxes?
A. And sales tax._
Q. Is there any other way that that gap can be made
up?
A. Not that I can imagine, but.really those are the
only two public revenues generated on the site. If they
were doing a hotel, it might include a share of transient
occupancy tax.
Q. As I recall, the hotel is a permitted use, but
one is not contemplated?
A. I don't recall specifically.
Q. There is a hotel across the 405?
A. The only hotel in the city in that vicinity is
just across Center Avenue, but the same side of the 405.
Q. Okay. That's still the City of Huntington Beach?
206
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 A. Yes, it is.
2 Q. Are you aware of anyone at the City who has an
3 ownership interest in any of the Ezralow or Ezralow-related
4 entities?
5 A. Not that I'm aware of
6 Q. Are you aware of any of the consultants
7 performing any work on behalf of Ezralow who have an
8 interest in Ezralow? And I mean the architect and any of
9 the appraisers.
10 A. Not that I'm aware of.
11 Q. Are you aware of any lobbyists that have been
12 employed by Ezralow?
13 A. Lobbyists, I haven't met any that they've
14 employed. I don't know —
15 Q. Would it be fair to say -- who is your lead
16 contact person with Ezralow? Is it Dinovitz or Gray?
17 A. It depends on what element you're talking about
18 It would be Doug Gray for the negotiations of the Owner
19 Participation Agreement hem the redevelopment
20 perspective. I think it's Scott Dinovitz when it comes to
21 the planning — processing through the Planning Department,
22 so Scott, I believe, is Jane's main contact, sort of
23 project manager to project manager.
24 Q. I see. Let me move on to some other exhibits,
25 but I have one more question on 15 — or Exhibit 7,-
207
1 actually, which is the June 5 memo.
2 Did you ever see any drafts of Exhibit 7 before
3 the final version?
4 A. I don't recall.. I think you asked that earlier
5 in the last couple of days.
6 Q. I'd like you to take a look at Exhibit 16,
7 previously marked. For the record, it's a letter dated
8 June 9, 2000, to Jane James from Scott Dinovitz. It's
9 received by the Department of Planning on June 12th.
10 Have you ever seen Exhibit 16 before?
11 A. I don't recall.
12 Q. Did you in any way cause a communication from the
13 Ezralow Company to be sent to Planning indicating that they
14 were to be removed or they were withdrawing their
15 application?
16 A. I don't recall offhand.
17 Q. What steps, if any, did you take to -- well, were
18 you aware that they withdrew their application?
19 A. It's a little bit hard to discern because I'm
20 aware of it now. I don't recall specifically at what point
21 ,in time I became aware of them withdrawing their
22 application.
23 Q. What does that mean, their withdrawing their
24 application?
25 A. I guess instead of them being a co -applicant with
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2 themself out of the process, so the City and the
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3 Redevelopment Agency will proceed on our own. I imagine it
3
4 was particularly in response to the litigation you filed.
4
5 Q. Now, you mean the Ezralow — or the "Burlington
5
6 versus Ezralow" lawsuit?
6
7 A. I believe so.
7
8 Q. Okay. Is this the first time you've seen this
8
9 letter, this June 9th, 2000?
9
10 A. I don't recall.
10
11 Q. Did you discuss with Mr. Dinovitz the withdrawal
11
12 of -- withdrawal of Ezralow as the applicant for the Zoning
12
13 Map Amendment 00-01 the Zoning Text Amendment, 00-02, the
13
14 Environmental Assessment 00-04, and the Design Review Board
14
15 00-13?
15
16 A. I don't recall.
16
17 Q. Okay. Besides the Zoning Map Amendment, Zoning
17
18 Text Amendment, the Environmental Assessment, and Design
18
19 Review Board, are there any other applications that you are
19
20 aware of that were made by Ezralow to the City?
20
21 A. None that I'm aware of Those all relate to the
21
22 specific plan.
22
23 Q. And more better -suited for Mr. Zelefsky?
23
24 A. Yes, he might be able to tell you if there's
24
25 anything else they've applied for.
25
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
Q. Did you determine whether Ezralow has withdrawn
its application for everything it's applied for?
A- Well, to the — based on what I've seen here
today, it looks like they have, except for just a
clarification. You're talking about redevelopment We use
redevelopment in sort of a "little R," meaning a property
owner can redevelop a site, just the act of whether it's in
a redevelopment area or not versus what we tend to call
"big R" redevelopment, and there's been no quote, unquote,
"application" for that except the owner participation
proposals and, of coarse, our ongoing negotiation. So I
don't believe that they've — you know, they've never
actually quote, unquote, "applied" for an ability to
redevelopment the site, "big R," but we are negotiating an
Owner Participation Agreement, so I don't know if you view
that as quote, unquote, as "application" or pursuit of some
right.
Q. So basically they have applications for various
things with the Planning Department, zoning text amendment,
zoning map amendment, environmental assessment, and Design
Review Board, and there may be other things that you're not
aware of, is that correct?
A. Could be, yes.
Q. And then with that aside, with respect to the -
Economic Development Department, once they were selected as
211
1
Q. Do you know what is a Design Review Board 00-13?
1
the redeveloper in response to the RFPs, that's the only
2
Do you know what that is specifically?
2
thing that they've loosely described as "applied for" with
3
A. When you say "specifically" --
3
respect to redevelopment?
4
Q. Yeah.
4
A. Right. I was just trying to get an understanding
5
A. -- that particular application?
5
of what you meant by an "application."
6
Q. Yes.
6
Q. Besides going through this OPA process and
7
A. No, I know the Design Review Board, for example,
7
submitting the requests to develop the property pursuant to
8
would be looking at the architectural guidelines for the
8
their R for P responses which were considered on June 19th,
9
specific plan, but -- and I imagine that's what that refers
9
is there anything else that Ezralow or its related entities
10
to.
10
have submitted to the Economic Development Department as a
11
Q. And the Environmental Assessment 00-04, do you
11
conduit for the Redevelopment Agency?
12
know what that is?
12
A. Not that I'm aware of. We provided everything
13
A. No, not offhand. I don't know how the planning
13
that's come in.
14
staff is proposing to proceed with the environmental
14
Q. Does the response to the request for proposals
15
planning assessment. —
15
and now the acceptance of them as the developer encompass
16
Q. Okay. Did you ever review any portions of the
16
the beginning and end of what — with what you're
17
written applications of the Ezralow Companies to determine
17
negotiating with Ezralow and its related entities?
18
if they're no longer the applicant or anything related to
18
A. More than likely it will be. An Owner
19
the redevelopment of The Crossings, redevelopment of the
19
Participation Agreement becomes the single redevelopment
20
Huntington Center?
20
contract. And, you know, that could have been done with or
21
MR. TEPPER: Do you understand the question?
21
without a specific plan, which is a planning requirement
22
THE WITNESS: No, not at all.
22
that needed to be put in place before the center could be,
23
MR. TEPPER: You're kind of mixing concepts. You
23
"little r," redeveloped, or developed under the City zoning
24-
might want to break it a little bit.
24
and general plan requirements.
25
BY MR. TUCHMAN:
25
Q. Now, you certainly can have an acceptance of an R
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for P and a selection of a developer without an OPA and an
SP in place; am I correct?
A. Well —
4 MR. TEPPER: Do you understand that question?
5 THE WITNESS: I'm going to try to understand it,
6 so-
7 MR. TEPPER: Okay.
8 THE WITNESS: Why don't we try it again,
9 actually.
10 MR. TUCHMAN: Please read the question back.
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(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Okay. Let's talk about one. We
can go through a request for owner participation proposals
and do a number of things. We can say, "Thank you very
much. We're not going to do anything." You know, just let
things continue status quo. We can select the developer,
and we may or may not end up with an Owner Participation
Agreement or Disposition of Development Agreement. We may
be able to reach the terms; we may not. We may not like
what's being proposed We may not like the economics. So
at the end of the day, we may end up with nothing through
that process.
Now, does that require a specific plan? In some
areas — a lot of areas, no. In the downtown area there is
213
already a specific plan in place that covers that entire
area, other areas we've issued requests for proposals.
I suppose in this particular instance that really
nothing can happen at Huntington Center other than
re -tenanting existing buildings without there being a
specific plan adopted. So conceivably could we enter into
an Owner Participation Agreement with someone and have them
do something -- nothing other than re -tenant existing
buildings? Conceivably, yes. I don't know why we might,
but, you know, they're not. intrinsically related, no.
Q. My question is: Do you need to have the zoning
map amendment and the zoning text amendment in place for
the OPA to be done with Ezralow?
A. For the agency to accomplish its goals, which is
to see Huntington Center redeveloped into a more vibrant
retailing environment, yes, becausei don't think that —
when we look at our goals for the site, that you couldn't
do it without having a specific plan In place, because you
can't do anything other than just re -tenant the existing
center without a specific plan in place, is my
21 understanding.
22 Q. For the developer to be selected and to negotiate
23 the OPA successfully with Ezralow so that they can
24 rebuild -- demolish and rebuild, they do not necessarily
25- have to be the author or the applicant of the building map
214
1 amendment and the zoning text amendment?
2 A. I believe that to be true.
3 Q. Okay. When the litigation came down, were you
4 ever notified, called on the phone or otherwise, that
5 Ezralow needed you to change the applicant?
6 MR. WATSON: Calls for speculation.
7 THE WITNESS: Yeah, I don'trecall where that
8 originated. My only recollection is at the time that I had
9 heard, and I don'tremember exactly from who, that you were
10 seeking a temporary restraining order to keep the City from
11 considering the specific plan, that, you know, the City
12 took steps necessary to ensure that we could move ahead
13 with that consideration.
14 BY MR. TUCHMAN:
15 Q. Did the City take the steps in response to --
16 where did this information come from?
17 A. I don't recall offhand.
18 Q. Did it come from Ezralow?
19 A. I don't recall. It could have come from -- I
20 don't know. I honestly don't recall exactly where it came
21 from.
22 Q. Who at the City or at the Redevelopment Agency
23 was first notified that this TRO was threatened?
24 A. I don't recall.
25 Q. Did Ezralow ask for your help?
215
1 A. I don't recall if a request came through from
2 Eumlow or unit. I don't recall where it originally
3 originated from.
4 Q. Do you know who knows the answer to that
5 question?
6 A. Not offhand, no.
7 Q. Did the steps that were taken in terms of
8 changing the applicant and as we see here in Exhibit 15 and
9 16, was that done in response to communications and
10 information which is received from Ezralow?
11 MR. TEPPER: Objection. That's a
12 mischaracterization. You're changing the applicant. I
13 think the testimony of the witness might have been
14 otherwise, this witness among others.
15 THE WITNESS: Right. I don'trecall what
16 triggered the — again, I characterize it as, you know,
17 crossing the Ts and dotting the I's out. I think — and I
18 don't remember the specific course of events or who talked
19 to whom when, but at the point in time the City learned
20 that it may be precluded from considering the specific
21 plan, that there was some discussion as to what would be
22 the best steps to ensure that we could proceed with the
23 considerations of the specific plan, and that's what
24 resulted in the memorandum that the City Administrator
25 signed as the City Administrator and Executive Director of
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2 Now, exactly who said what to whom when, I don't
2
3 recall. I mean, I realize this is of the utmost importance
3
4 to your client and to you, but we're managing 10, 12 major
4
5 projects at a time. You know, I haven't focused on this
5
6 and, you know, we did — I just don't recall who originally
6
7 said we're aware that litigation had been pending. Matter
7
8 of fact, you had been by talking to Gus Duran at various
8
9 times describing what you thought your remedies were. 1
9
10 don't know. It could have come from you. I don'trecall.
10
11 BY MR. TUCHMAN:
11
12 Q. Did you have someone assigned within the Economic
12
13 Development Department to monitor the lawsuit on a
13
14 day-to-day basis or regular basis?
14
15 A. You know, I don't know if — I wouldn't say
15
16 specifically assigned, no. You know, Gus is basically the
16
17 project manager working on the project with me, primarily.
17
18 I don't know if our attorneys, for example, have been
18
14 monitoring it, so —
19
20 Q. Did you — would you say that you discussed the
20
21 "Burlington versus Ezralow" case with attorneys at Kane,
21
22 Ballmer prior to June 5th, 2000, on at least a weekly
22
23 basis?
23
24 A. I discussed the Ezralow project and The Crossings
24
25 project on at least a weekly basis with people from Kane,
25
217
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON'
prior to June 7th. 2000, did you discuss the
Ezralow/Burlington litigation?
A. I don't recall specifically.
Q. Did you ever discuss the Burlington/Ezralow
litigation with Douglas Gray?
A. Yes, I don't recall the time frame for it, so —
Q. Did you discuss the litigation between Ezralow
and Burlington prior to June 7, 2000, with other persons
from Ezralow besides Mr. Gray?
A. Well, I didn't say I discussed it before
June 7th. I don't recall if I did or of the specific
dates I remember a specific conversation where he called
and said that they had been successful in beating out the
restraining order, but I couldn't tell you what the date of
that conversation was.
Q. And do you know when that conversation was?
MR. TEPPER: He just said he didn't know.
THE WPI'NESS: I just said I couldn'trecall the
date of that conversation.
MR. TUCE MAN: It's okay, Mr. Tepper.
BY MR. TUCHMAN:
Q. Do you know how long after the hearing that took
place?
A. No..
Q. Did he say why the TRO was defeated?
219
1
Ballmer. Were we discussing specifically the lawsuit, I
1
A. I'm trying to recall. I don't specifically
2
don't recall. It's not necessarily we've got — any
2
recall.
3
transaction like this is very complicated, you know, as
3
Q. Do you generally recall?
4
you're looking at the economics and drafting documentation
4
A. No, at this point I would be — I don't have a
5
and considering your options, understanding the market.
5
hard memory specifically or even generally what he said.
6
It's one of our four or five major projects, so I'm
6
You know, my understanding, garnered from a variety of
7
spending at least an hour and a half or two hours a week in
7
sources, was on the basis that there was nothing to enjoin,
8
meetings on it, standing meetings on it, plus occasionally
8
nothing to restrain.
9
project meetings. It probably comes up in staff meetings.
9
Q. Because the City became the applicant?
10
We have a group called the Executive Team, which is the
t0
A. No, because the City was the applicant and that
11
department that overviews development services. It may
11
since the City was the applicant, your action was filed
12
come up in the context of that, status updates. You know,
12
against the wrong party.
13
so same thing we do with the waterfront project and the CIM
13
Q. Now, Mr. Biggs, did you request that Exhibit 16
14
project downtown and Lowe's. We proposed Wal-Mart
14
be drafted?
15
Q. How frequent were you speaking with Douglas Gray
15
A. Not that I recall.
16
prior to June 7, 2000?
16
Q. Are you aware of anyone from the City that
17
MR. TEPPER: June 7?
17
requested Exhibit 16 to be drafted?
18
MR: TUCHMAN: Yes,
18
A. Not that I know oL
19
THE WITNESS: June 7th? Well, really -- probably
19
Q. Now, Mr. Biggs, based on your last answer, are
20
not more than maybe once or twice a week, events leading up
20
you stating that Burlington Coat Factory should have sued
21
to ICSC and coordinating the meetings at ICSC. I may have
21
the City?
22
talked a little more often, but not more than probably once
22
A. No, I would never encourage anyone to pursue
23
or twice a week.
21
litigation.
24.
BY MR. TUCHMAN:
24
Q. Okay. Are you saying that the Redevelopment
25
Q. In those conversations that you had with Mr. Gray
25
Agency in the City of Huntington Beach should have been
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it
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sued by Burlington?
A. I just answered that I don't encourage anyone
to pursue litigation.
Q. Okay. Well, I just want to be clear. Do you
think that Burlington should be suing you now?
A. I don't know if they feel they have cause to sue.
Q. Okay. Because I thought I heard from your answer
that Burlington should have sued you back in — before the
temporary restraining order, and I wasn't sure if that's
what you wanted to say.
MR. TEPPER: You don't have to answer. He's
argumentative.
THE WITNESS: I would encourage Burlington to
get a different attorney, but that's a matter of personal
opinion, so —
BY MR. TUCHMAN:
Q. That's good. I just want to make sure what you
have to say. Okay.
Let's take a look at Exhibit 17. Do you
recognize Exhibit 17?
A. Yes, I do.
Q. What is Exhibit 17?
A. It's a memorandum I prepared to the Planning
Commission.
MR. TEPPER: Excuse me. Can the witness finish?
221
MR. TUCHMAN: That's why I paused.
THE WITNESS: That's based on some questions they
had when they were doing, I think, either study sessions or
an initial review of the draft specific plan.
MR. TEPPER: What is the date of the memorandum?
THE WITNESS: June 16th, 2000.
MR. TEPPER: Thank you.
BY MR. TUCHMAN:
9 Q. Let's take a look at your memo. Is that your
10 signature?
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16
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24
A. No, actually I think that is one of the times
that my secretary would have signed it for me.
Q. Did you author the first three pages of
Exhibit 177
A. Yes, I did.
Q. Okay. Why did you do that?
MR. TEPPER: Excuse me?
BY MR. TUCUMAN:
Q. Why did you do that?
A. As I just said, because the Planning Commission
asked some questions in one of their study sessions that I
was asked to respond to.
Q. Do you know which Planning Commissioner asked you
a question?
25- A. I wasn't at that Planning Commission meeting, but
222
1 it was a question that was referred to me, I think, by —
2 either Jane or Gus was at that meeting, or maybe it even —
3 I don't recall. Maybe it came up indirectly from
4 Commission members to Planning staff: I don't recap
5 specifically.
6 Q. Who asked you to prepare this? I'm song.
7 A. It was asked to be prepared in response to
8 questions raised by Planning Commissioners. It was either
9 Gus or Jane or maybe even Howard, but I don't recap
10 specifically.
11 Q. Was it in response to a study session or a
12 Planning Commission meeting on June 13?
13 A. I don't remember which of the two. My
14 recollection is maybe it was a combination of both,
15 questions that arose maybe during a study session or
16 Planning Commission meeting, and subsequent to that based
17 on questions commissioners had.
18 Q. Did anybody else assist with you in authoring
19 your memo dated June 16, 2000?
20 A. No. Pretty much I did that myself. Of course,
21 there's the attachment for Mr. Kane's office, which, of
22 course, I didn't author.
23 Q. Did you ask Mr. Kane to prepare this memo?
24 A. Yes, I did.
25 Q. Why?
223
1 A. Because of the questions asked by the Planning
2 Commission.
3 Q. Okay. Is this the complete memo, June 15, 2000,
4 from Murray Kane?
5 A. I believe so.
6 Q. There were no other attachments to it or anything
7 deleted?
8 A. No, I don't believe so.
9 Q. Okay. And when you reviewed the memo from
10 Mr. Kane, did you make any changes to it and send it back
11 to hire?
12 A. I'm sorry?
13 Q. Did you make any changes to it?
14 A. To Mr. Kane's memo?
15 Q. Yes.
16 A. Not that I recall.
17 Q. Did your memo, the one that you wrote dated
18 June 16th, 2000, did you submit it to Mr. Kane for his
19 review?
20 A. I don't recall.
21 Q. Now, look at the top of the second page, please.
22 It says, "On June 5th, 2000, the City and Redevelopment
23 Agency became co -applicants for the specific plan and
24 Ezralow withdrew their application."
25 Do you see that sentence?
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A. Yes.
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Q. Now, you wrote this memo on June 16th, 2000;
2
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correct?
3
4
A. Yes.
4
5
Q. What documents did you have or did you collect
5
6
that caused you to make this statement?
6
7
A. I don't recall specifically, but I imagine it
7
8
would have been — well, again, I don't want to speculate.
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I don't recall specifically, but by Jane 16th, we'd seen
9
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the memo that Ray had sent had been through. I don't
10
I 1
recall if it was also the Ezralow. It was probably on the
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12
basis of a combination of the documents that we've
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13
discussed here today.
13
14
Q. Exhibits 15 and 16?
14
15
A. Could be. I don't recall specifically, but
15
16
that's what I would imagine they would have been.
16
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Q. Let's take a look at 16. Let's take a look at 7.
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Let's take a look at 15. Are those the documents that you
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looked at when you prepared that statement?
19
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A. I don't recall specifically.
20
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Q. Okay. Were there any other documents?
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A. Not that I can recall.
22
23
Q. Okay. Why did you say that on June 5, 2000,
23
24
Eaalow withdrew their application?
24
25
A. Well, I don't know that that sentence is
25
225
1
necessarily referring to that date, but I imagine I wrote
1
2
that on the basis of this June 5 memo in relationship to
2
3
the City and the Redevelopment Agency. I don't think I was
3
4
being specific as to the date when Ezralow withdrew their
4
5
application.
5
6
Q. Where in Exhibit 7 does it say that Ezralow is
6
7
withdrawing its application?
7
8
A. I didn't say it said that they said that in
8
9
Exhibit 7.
9
10
Q. Okay. Well, on what basis do you make the
10
11
statement that on June 5, 2000, Ezralow withdrew their
11
12
application?
12
13
A. I wasn't referring to that when I was referring
13
14
to June 5th. I was referring to the City and Redevelopment
14
15
Agency. I suppose technically I should have said, "And
15
16
subsegwttf Ezralm withdrew their application."
16
17
Q. That would have been more correct, more accurate?
17
18
A. It would have been more correct
18
19
Q. Did anybody tell you to write this memo?
19
20
A. Anyone tell — no, I've already told you it was
20
21
* in response to questions raised from the Planning
21
22
Commissioners,
22
23
Q. Mr. Kane didn't tell you to write this memo?
23
24
A. No.
24
25
Q. Why did you make this statement, "The Agency has
25
226
DAVID C. BIGGS, 07.28.00
BURLINGTON V. NUNTINGTON'
relied on Ezralow to a great degree to work with other
property owners and tenants in the area covered by this
proposed specific plan"?
A. My recollection is because one of the Planning
Commissioners was responding to criticism from you and
others that Burlington had been shut out of the process.
Q. And what investigation did you perform to
determine whether that was a true or false statement?
A. Just my firsthand experience.
Q. And your firsthand experience was that Burlington
was included in the process?
A. I believe they were invited to be so, and that
Ezralow had been meeting with them.
Q. And where did you get that information from?
A. Pardon?
Q. Where did you get that information from?
A. Primarily, from Ezralow.
Q. Who from Ezralow?
A. Well, it would have been a variety of people over
time, Doug Gray and — well, primarily, Doug Gray, I
imagine, actually. Doug Gray; I can't think of Paul's last
name there, the leasing guy; sometimes Bryan Ezralow is in
some of the meetings.
Q. And what did these people from Ezralow tell you
about the degree of contact they have with Burlington?
227
A. Degree of contact?_
Q. Sure.
A. I'm trying to recollect because this goes back —
some of this goes back to before the first of the year.
You know, they had been having some discussions with the
Ezralow leasing people, the real estate people — I forget
the name of the vice president — for a while. It wasn't
really local store contacts. It was more the real estate
staff You know, it would be hard to characterize it. You
know, I don't know the number of meetings or the exchange.
I have over — you know, just from during them giving as
updates on the project, them mentioning that they had had a
meeting and shown them site plans and things along that
line, so it's hard for me to quantity it.
Q. Did you believe — did you inform the Planning
Commissioners via your memo that Burlington had attempted
to meet with the City prior to initiating any litigation?
A. Could you repeat the question?
MR. TUCHMAN: Read the question back for
Mr. Biggs.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: I don't recall. I don't think it
was a question that they had asked.
228
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BY MR. TUCHMAN:
Q. Okay. Are you aware that Burlington attempted to
have a meeting with the City prior to initiating even the
Petition to Compel Arbitration?
A. We covered this earlier in the deposition.
Q. Yeah.
A. So whatever I said earlier would still stand.
Q. Okay. You didn't want to have a meeting?
A. I don't think that was the case.
Q. Okay. Did you discuss with Mr. Duran the fact
that he testified that a request for a meeting occurred?
A. No, I haven't discussed that with him
specifically, no.
Q. Did you ever check with him as to whether your
answer was accurate, your previous answer?
A. No, because you instructed as that we weren't
supposed to be talking to people about that, going back,
you know, in between depositions.
Q. Taking instructions from me, eh?
A. Well, yeah, to a certain degree, try to be a.
cooperative person.
Q. Okay. Are you aware that Mr. Duran testified
that we attempted — that Burlington attempted to have a
meeting at least twice prior to the Petition to Compel
Arbitration?
229
A. I don't specifically recall, no.
Q. Were you the one that made the decision not to
have that meeting?
A. I don't recall.
Q. Okay. Now, it says, "This is due to an existing
contractural relationship that exists among these parties
into which the Agency or the City is not a party."
What did you mean by that sentence?
A. Well, we've been accused by you of interfering
with your contractural relationship with Ezralow, and I
think we were trying to -- as we always have, trying not to
do so.
Q. Okay. Why are you trying not to do so?
A. Well, it's generally not a good idea
Q. Not a good idea to what? .-
A. To interfere in a contractural relationship.
Q. And why is that?
A:_ Because people like you like to sue over things
like that:;
Q. Okay. And to the best possible -- to your -best
possible ability, you've tried to stay out of the
contractural relationship with Burlington and Ezralow;
right?
24 A. For example, because there is not the similar
25- kind of relationship we have, in fact, met with Ward's.
► l]
1 Q. Can you answer my question?
2 MR. TEPPER: He's answered it.
3 THE WITNESS: I think I did. If you're looking
4 for a different answer, you can provide it yourself.
5 MR. TUCHMAN: Read the question back.
6 (Whereupon the previous question was read
7 back by the court reporter as requested.)
8 THE WITNESS: Yes, and we've not met with any of
9 the other — of Ezralow's tenants.
10 BY MR. TUCHMAN:
11 Q. Okay. What is the current status -- you've not
12 met with Mr. Hohman, H-o-h-m-a-n?
13 A. Oh, I have over time, yes.
14 Q. Okay. When is the last time you met with
15 Mr. Hohman?
16 A. Oh, gosh, I don't recall the specific date, but
17 it's been in the last 60 days.
18 Q. When is the last time?
19 A. Pardon?
20 Q. When is the last time?
21 A. I don't recall specifically. Within the Iasi
22 60 days.
23 Q. What was discussed with Mr. Hohman within the
24 last 60 days?
25 A. They just wanted to have an opportunity to come
231
1 in and talk about their new concept and the new Montgomery
2 Ward's and their interest in participating in the
3 redevelopment of Huntington Center.
4 Q. And who else was present at that meeting?
5 A. There were a couple of people from Ward's, Ray
6 Silver and I, Howard Zelefsky, I think Gus Duran. I don't
7 recall if there were others present.
8 Q. How long did the meeting last?
9 A. Oh, I want to say maybe about an hour.
10 Q. Where did the meeting take place?
11 A. In the City Hall.
12 Q. Was there a resolution after the meeting?
13 A. • No, we encouraged them to continue to work with
14 Ezralow.
15 Q. Was this before or after June 19th, 2000?
16 A. I don't recall specifically.
17 Q. When you were in Las Vegas, were you aware that
18 you spoke with anyone from Burlington?
19 A. I don't recall.
20 Q. Do you know for a fact if anyone from the City of
21 Huntington Beach or the Redevelopment Agency or the
22 Economic Development Department spoke to anyone from
23 Burlington?
24 A. We stopped by their booth one day. I stopped by,
25 but I think the person who was — handled the portfolio for
232
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1
western United States was already in a meeting, so —
1
2
that's what we usually do. Every year we stop by
2
3
Borlingloa's booth. To the best of my knowledge, they've
3
4
not ever come to ours
4
5
Q. What was your intent in stopping at the
5
6
Burlington booth in Vegas?
6
7
A. We stop every year in Vegas to visit any tenants
7
8
in town that have booths there.
8
9
Q. And the reason for that is?
9
10
A. Just a general courtesy call.
10
11
Q. Do you know why the Macerich -- why Macerich
11
12
didn't go through with their specific plan?
12
13
A. Well, they sold the center to Ezralow before it
13
14
was completed.
14
15
Q. I understand that. Do you know why they did
15
16
that?
16
17
A. They indicated to as that they didn't think that
17
18
was their core — development of that kind of center was
18
19
their core of business, and it would be better served from
19
20
their corporate perspective to look at selling the center.
20
21
Q. Did anyone from the City or the Redevelopment
21
22
Agency or the Economic Development Department or any other
22
23
agency of the City of Huntington Beach encourage Ezralow to
23
24
purchase the property from Macerich?
24
25
A. Encourage?
25
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
discussing with Macerich, and didn't share that with
perspective purchasers, but we understand later that
Macerich had actually shared that with all perspective
purchasers So they were sort of trying to get a sense how
the Redevelopment Agency might participate financially in
any future project, those kinds of things.
Q. Take a look at the next page, please, of
Exhibit 17. You say that in the third paragraph, "We
encourage the Planning Commission to take action and
approve the specific plan on June 20. This will ensure
that any negotiations for the redevelopment of the area are
undertaken with the specific plan parameters in place to
guide these efforts."
Those are your words; correct?
A. Yes
Q. Okay. What does that mean? Why did you -- as
the Economic Development Director, why did you want to
encourage the Planning Commission?
A. Well, in the past we sort of have a chicken and
egg problem with the Planning Commission. Sometimes
they've complained that we've negotiated redevelopment
transactions before they've had a chance to review the
planning issues on a project. And so I was just- in this
instance, I was encouraging them to take action becauw
they had been at that point in time authorized to negotiate
233 1 235
1 Q. Yeah.
1
with Ezralow, for an Owner Participation Agreement, and I
2 A. No, I wouldn't say encourage, no.
2
was sort of reinforcing that they, as a Planning
3 Q. Did the City of Huntington Beach or any of its
3
Commission, had an opportunity to move forward with setting
4 employees or agencies or elected officials communicate to
4
the planning standards for the project, so we didn't have
5 Ezralow to purchase the property from Macerich?
5
this chicken and egg scenario.
6 A. Communicate?
6
In the past they have felt that when some of the
7 Q. Yeah.
7
planning issues will come to the Planning Commission after
8 A. What do you mean by "communicate"?
8
we've already negotiated Owner Participation Agreement or
9 Q. Tell them they should buy the center.
9
Disposition of Development Agreement, they thought that
10 A. I don't think we told anyone they should bay the
10
their hands had been tied as far as whether or not they
11 center.
11
could set the planning standards. And in this instance,
12 Q. Was there any input from anyone from the City of
12
they can set the planning standards for the site before
13 Huntington Beach to Ezralow prior to the purchase of the
13
anyone eventually develops — went through redevelopment of
14 property by Ezralow from Macerich?
14
the center.
15 A. Sure. Ezralow was doing doe diligence. We
15
Q. So what you're saying is the two processes, one
16 talked to a®erous developers who were interested in baying
16
in selecting the developer and entering into an OPA and the
17 the center before they submitted their bids
17
other process of establishing a specific plan to get the
18 Q. When you say due diligence, what type of due
18
correct zoning for one of the redevelopment areas, they are
19 diligence was done relative to the City?
19
interrelated?
20 A. I don't recall. Everything specifically, but
20
A. Only in the minds of some of the Planning
21 they were interested in knowing, you know, if it's in a
21
Commissioners I don't think that's actually true, but,
22 redevelopment project area, copies of the redevelopment
22
you know, you have to work within the nuances of your
23 plan, you know, the status of the specific plan, what
23
elected and appointed officials.
24_ Macerich had been proposing. You know, people were quite
24
Q. Okay. And why did you make this statement, "This
25 curious as to what the terms were that we had been
25
will ensure that any negotiations for the redevelopment of
234 I 236
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 the area are undertaken with the specific, plan parameters
2 in place to guide these efforts"?
3 A. That was specifically in relationship so the
4 Planning Commission would know that when we eventually did
5 move forward with the project, that they had already had
6 their input as the Planning Commissioner — Commission and
7 planning standards, and that's what drove the transaction
8 as opposed to necessarily their perspective sometimes of
9 the economic stride, the transaction, and override planning
10 considemdons.
11 Q. You wanted the specific plan to be in place prior
12 to entering into the OPA?
13 A. I would have liked the specific plan to be in
14 place five years ago. That's just generally good
15 business, whatever ownership there was.
16
17
18
19
20
21
22
23
24
25
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25_
Q. And with respect to the specific plan, is that —
that has now been approved, has that entered into any part
of your discussions relative to negotiations on the OPA?
A. No. Again, not specifically, no, just to the
extent they have to conform with the specific plan.
Q. And when you say they have to conform with the
specific plan, it talks about the design; it talks about
the amount of square footage; it talks about setbacks; it
talks about the types of businesses that can and cannot be
in there?
237
A. Generally, yes.
Q. And those affect the amount of money that's going
to be -- that the center will be generating and, therefore,
determines what this gap will be?
A. Potentially.
Q. What others affect the determination of what the
SP has -- does that have on your OPA?
A. Well, it's always better if you -- like, in the
downtown area where there is already a specific plan in
place and --
THE REPORTER: I'm sorry.
THE WITNESS: -- it has the effect of expediting
any projects that are undertaken in the future whether
redevelopment or not.
MR. TUCHMAN: I think we should give the reporter
five mimosa... —
(A brief recess was taken.)
MR. TUCHMAN: I'm going to ask the reporter to
mark for identification as" 137 -- and I don't have extras
of this, so I71 let you all take a look at it -- it's a
colored document that's two-sided. It says, "The Crossings
of Huntington Center" on both sides.
(Plaintiffs Exhibit 137 was marked
for identification by the court
reporter and is attached hereto.)
238
1 BY MR. TUCHMAN:
2 Q. And do you recognize 137?
3 A. Yes, I do.
4 Q. What is 137?
5 A. This was the Hier prepared by Ezralow that we
6 were referring to earlier.
7 Q. That was passed out at the Las Vegas convention?
8 A. It was available at the Las Vegas convention. It
9 was there with other materials given to as by various
10 developers that people could take when they were in the
11 booth.
12 Q. Okay. And can you see from Exhibit 137 where it
13 is that Burlington is located?
14 A. From discussions I had with the developer, they
15 at various times pointed out that Burlington could go in
16 any number of places here, and it doesn't show the current
17 Burlington building.
18 Q. Do you know — which current places did you
19 anticipate or did they tell you they anticipated they would
20 , be going in?
21 A. At times they talked about Burlington going in
22 here In the two-story —
23 MR. TEPPER: Hold on. Before we get any further,
24 if we're going to do things like that, why don't we have a
25 black -and -white or a photocopy made of that so the witness
1 can put a number on it.
2 MR. TUCHMAN: Just circle it. That's a better
3 idea. Well be right back. Here's 137.
4 MR. WATSON: Thanks.
5 MR. TEPPER: Thank you.
6 BY MR. TUCHMAN:
Q. Okay. This is the color one. You can take a
look at it. But please mark up, if you want, the white
9 one.
10 Where did you say Burlington would be going or
could be going?
A. I think, first otall, that we always —when we
did happen to refer to this or when I heard Ezralow refer
to this, this is an illustrative site plan, that Burlington
could have gone, for example, to basically -- approximately
where they are, this cross -sectioned area shows a two-story
building that those retail spaces could have been
consolidated and provided space for Burlington. Same thing
with this space over here, that, you know, going to
two-story format or over in another location here. I
forget exactly where depending on what happens with the
theaters. I could have gone over here (indicating).
Q. Why don't you circle the other potential area.
A. But this is all speculative. I also have seen
illustrative plans that show Burlington where their
14
15
16
17
18
19
20
21
22
23
24
25
239
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1 existing building is.
1
2 Q. That's fine. Next question. Why was 137 handed
2
3 out showing the building gone when there was conceptual
3
4 site plans where it had Burlington's structure in
4
5 existence?
5
6 A. I don't know. This is what was provided to as by
6
7 the developer.
7
8 Q. Okay. And this -- you didn't request 137 be
8
9 handed out at the booth? This is what Ezralow gave you?
9
10 A. We asked a variety of developers developing
10
11 projects throughout the city to give as whatever marketing
11
12 materials they wanted as to distribute.
12
13 Q. When you got 137 -- when is the first time you
13
14 saw 137?
14
15 A. I don't recall.
15
16 Q. When you saw the handout, did you -- 137, did you
16
17 say to them that this could cause a problem because the
17
18 Burlington structure -- existing structure is not
18
19 indicated?
19
20 A. I don't recall having discussions with them about
20
21 that because, you know, it didn't say on there either that
21
22 Burlington wasn't part of the project, so —
22
23 Q. Was there a sign at the booth that had
23
24 Paul Bernard's address and phone number there?
24
25 A. This is on the fliers. This is the Icier that we
25
241
1
had, you know, facing out this way at the booth. So it had
1
2
their name and number. Was there another flier? I don't
2
3
recall offhand. We had a variety of displays up. We had
3
4
our main display wall that had, you know, maybe 15 projects
4
5
on it. It included, for example, like a rendering like
5
6
this for the mall. I don't recall if there was a site plan
6
7
or not. We had some other materials from Ezralow. I don't
7
8
recall if they were actually on display or if they were
8
9
just there as resource materials.
9
10
Q. Okay. Who paid for 137?
10
11
A. I don't know. It wasn't us.
11
12
Q. With respect to 137, when you received 137, did
12
13
you ask that the scenario, which left Burlington intact,
13
14
that this conceptual site plan also be distributed?
14
15
A.. No, we never — we just provided you the
15
16
material — displayed the material the developer provided
16
17
to us.
17
18
Q. Okay. Now, let's go back, please, to
18
19
Exhibit 17. Thank you. Take a look, please.
19
20
A. That's Exhibit 179
20
21
Q. Here's another copy for you.
21
22
A. Is this it?
22
23
Q. It was in your notebook.
23
24
A. Closed it up while I was sitting here. Okay.
24
25
Go ahead.
25
242
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
Q. Okay. Take a look at the third page. You have
right in front of you. You sent this to the Mayor and City
Council members. Did anybody respond to your memo?
A. Not that I recall.
Q. Did Ray Silver respond to your memo?
A. Not that I recall.
Q. Did Gail Hutton?
A. Not that I recall
Q. Murray Kane?
A. Not that I recall.
Q. Gus Duran?
A. Not that I recall,
Q. Now, D.C.B., those are your initials?
A. Yes.
Q. L.S. is Linda —
A. Suracd.
Q. Okay. She's your secretary?
A. Yes.
Q. Okay. Let's take a look at the next page,
memorandum from Kane, Ballmer. Do you have independent
knowledge one way or the other whether the statements made
in the June 15 memo were correct or incorrect?
A. The Jane 15 memo from —
Q. Mr. Kane; correct?
A. — Mr. Kane? Yes, I believe them to be correct
243
because I'm familiar with all the documents referred to In
there.
Q. Okay. And Ordinance No. 3343 -- briefly, what is
3343?
A. That's the ordinance that approved the
redevelopment — the merged redevelopment plan.
Q. For all five districts?
A. Yes.
Q. And what is the redevelopment plan?
A. What is the redevelopment plan?
Q. Yes.
A. It's a —
MR. TEPPER: The redevelopment plan or a
redevelopment plan? I didn't hear you.
MR. TUCHMAN: It says "the redevelopment plan."
MR. TEPPER: Okay.
THE WITNESS: It's the redevelopment plan
required by State law, California Health & Safety Code that
when you approve a geographic redevelopment area, you adopt
a written redevelopment plan that talks about the
redevelopment authorites you have in the area.
BY MR. TUCHMAN:
Q. And what is the California Community
Redevelopment Law?
A. That's set forth. It's a law under which
244.1
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BURLINGTON V. HUNTINGTON
1
redevelopment agencies organize and operate. It starts
t
2
with Section 33000 of the California Health & Safety Code.
2
3
Q. Are you familiar with the zoning and ordinance
3
4
regulations for the City of Huntington Beach?
4
5
A. Very generally.
5
6
Q. Who is in charge of updating them in terms of
6
7
making sure that the statute or the ordinances contained in
7
8
them are correct?
8
9
A. In the zoning ordinances?
9
10
Q. Yes,
t0
11
A. Zoning code? That would be the Planning
it
12
Department, Howard Zelefsky's department.
12
13
Q. That's not part of the EDD's responsibilities?
13
14
A. No.
14
15
Q. Let's look at the next part of 17. This is the
15
16
June 19th, 2000, City of Huntington Beach Request for
16
17
Redevelopment Agency action. Do you recognize this
17
18
document?
18
19
A. Yes, I do.
19
20
Q. And is that your signature?
20
21
A. Yes, it It
21
22
Q. And you prepared the last three pages of
22
23
Exhibit 17, which is the -- which is the request for
23
24
Redevelopment Agency action dated A ine 19th, 2000?
24
25
A. Not necessarily. I would have reviewed it, but I
25
245
1 don't recall if I drafted it or someone else did. I think
1
2 Gus actually did.
2
3 Q. Okay. It says prepared by you, and then it's
3
4 initialed by you.
4
5 A. , Weil, all RCAs are prepared by department heads,
5
6 but they're quite often prepared by staff.
6
7 Q. Is this — RCA or RAA?
7
8 A. This is an RAA.
8
9 Q. Okay. "The Recommended Action, direct staff to
9
10 negotiate an Owner Participation Agreement with Huntington
10
11 Center Associates, LLC, an Ezralow Company subsidiary, for
11
12 the comprehensive redevelopment of Huntington Center."
12
13 That was approved; correct?
13
14 A. Yes, it was.
14
15 Q. Okay. What does that mean, "comprehensive
15
16 redevelopment"? _
l6
17 A.. Well, it means for redevelopment of the area that
17
18 we referred to in the request for owner proposals,
18
19 basically the area — the 63 acres that includes property
19
20 of Ward's, SCE, and Huntington Center, LLC.
20
21 Q. And when you say "comprehensive redevelopment,"
21
22 that also includes the long-term tenancy of Burlington Coat
22
23 Factory?
23
24 A. Well, when you talk about redevelopment, that
24
25 means yes, incorporating existing tenants into the
25
246
redevelopment of the center.
Q. Okay.
A. That could be laving them in their buildings.
That could be moving them to another location depending on
what rights the property owner has.
Q. Okay. Where did this information come from in
the second page of the report?
A. Which information are you -referring to?
Q. "The City has seen the sales tax revenue."
A. That comes from sales tax data we received from
the State Board of Equalization.
Q. And when did you receive, that information?
A. When did we receive it?
Q. Yes.
A. We receive it regularly, quarterly.
Q. They sent it to you quarterly?
A. Yes.
Q. And the information that you provided in this
R — is it an RAM
A. Yes.
Q. — this RAA, was current as of June 2000?
A. Yes, based on the dates identified in there.
Q. Okay. Did you ever make a statement that — ever
make the statement that you believed that there wem not
enough City Council votes to condemn out the Burlington
247
leasehold?
A. No, I don't know that to be a fad one way or the
other.
Q. Have you taken a straw poll?
A. Me personally, no.
Q. Do you know if anyone has?
A. Not that I'm aware oL
Q. Is that something you've talked about with
Ezralow?
A. We've talked about the general climate for
property acquisition in Huntington Beach. We have the some
issues adAiig on another project in the downtown, whether
or not the Council — which you don't know that until you
present a matter for an imminent domain hearing, and we're
well away from that occurring in any instances.
Q. In this case or the downtown instance?
& Both. Both.
Q. When you say the "general climate," what do you
mean by that? .
A. Huntington Beach Is a very property
rights -oriented city and, you know, the City Council here
doesn't do imminent domain very often as compared to other
jurisdictions of which I'm familiar, so it's something that
is always you don't know until you move forward. There's
not a lot of history. I couldn't tell you, for example,
248
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1 that — you know, other cities, quite often there's
2 imminent domain resolutions on Council agendas with great
3 regularity by which you can judge their willingness to
4 acquire property. So it's just a general observation about
5 the nature of a lot of cities in Orange County where it's
6 very property rights -oriented.
7 Q. There's 200,000 people in the city of
8 Huntington Beach?
9 A. Yes.
l0 Q. You talked about, "The community has long
I clamored its redevelopment as the center has become an
12 eyesore."
13 Where did this statement come from?
14 A. Well, based on my own personal experience.
15 Whenever I speak to public groups, probably a number of
16 them question and ask us, "When is the City going to do
17 something about Huntington Center.?" So we consistently
18 point out we work with property owners on the site and
19 merely take their cue as far as what might happen from a
20 redevelopment perspective. So it's based on five years'
21 experience, contact personally, the contact my staff has.
22 Council members have indicated it's one of the top
23 questions they're asked about. So it's, again, based on
24 five years' experience of being in the community.
25 Q. Well, is the clamor of the community a factor
1 that you work into to determine redevelopment?
2 A. I'm sorry. I don't understand your question.
3 Q. I'm trying to understand why the clamor of the
4 community has an influence one way or the other over
8
9
10
11
12
13
14
15
16
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redevelopment.
A. It has influence over everything the Government
does. Basically, by nature, driven by what the community
would like to see. I mean, we've got people now clamoring
as a result of an auto accident to reduce speeds on the
street in the city. They show up at Council meetings and
that's nature -representative democracy.
Q. And if I told you 5 percent of the residents of
Huntington Beach want Burlington Coat Factory saved, would
you consider that in your equation?
A. Sarre. It would be something that would
ultimately come to play in public hearings, if there are
ever public hearings as to that question.
Q. What question? ..
A. Whether— your point being whether Burlington
Coat Factory should be saved. If that question is ever
something for the City to decide, it would be through a
public hearing process, and people would have an
opportunity to participate through that process.
Q. Is there a certain percentage where you will
factor this into your memos or your reports in your RAAs?
250
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 What if 10 percent of the population of Huntington Beach
2 wanted Burlington Coat saved?
3 A. This is based on my personal experience and, you
4 know, the terminology we chose to use there. So I believe
5 it to be an accurate statement.
6 Q. Okay. Well, certainly, if 10 percent did voice a
7 concern about Burlington Coat Factory, 10 percent of the
8 population of the city of Huntington Beach, that's
9 something you would take a look at?
10 A. Certainly. We're always responding to things we
11 hear in the community.
12 Q. Okay. Good. Now, the first sentence in the
13 third paragraph says, "The agency intends that the
14 Huntington Center be rehabilitated and repositioned into a
15 high -quality, well -integrated, retail entertainment center
16 under unified ownership."
17 To that end, has the Redevelopment Agency or the
18 City of Huntington Beach determined one way or the other
19 whether Burlington Coat Factory and its retail business
20 fits into this concept?
21 A. No.
22 Q. To your knowledge, has Ezralow determined whether
23 this fits into this concept?
24 A. No.
25 Q. Has anybody at the City ever stated to you that
251
1 Burlington Coat Factory is not upscale enough?
2 A. Has anyone?
3 Q. Yeah.
4 A. I've had people in the community express that
5 personally. But, you know, when you say "anyone in the
6 City," are we tAildng about the City organization? Not
7 that I'm aware oL
8 Q. Do you as the Person Most Knowledgeable from the
9 Redevelopment Agency and as the Director of the Economic
10 Development Department believe that the Burlington Coat
11 Factory is not upscale enough for the vision at
12 The Crossings?
13 A. I don't know at this point. It depends on who
14 the other tenants are and whether they fit ultimately in
15 the overall mix. And so since that's not been determined,
16 it's not possible to make judgment at this point in time.
17 Q. Okay. And as far as — have you ever said --
18 you, Mr. Biggs, ever stated that Burlington Coat Factory
19 should not be at The Crossings because it's not upscale
20 enough?
21 A. Again, it depends on who the other tenants are.
22 So it depends if the question, as asked, is Burlington, you
23 know, the right tenant for the center anchored by Sax and
24 Tiffany's, but, you know, we haven't really been asked that
25 yet, so I haven't formed an opinion in that regard. If the
252
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center consists of Montgomery Ward's and Mervyn's and
JC Penney, they might be, but, again, we haven't had — you
know, it would be pare speculation to try to form an
opinion one way or the other.
Q. Sax and Tiffany's have expressed an interest?
A. No, that was purely illustrative of the gamut of
options.
Q. Mervyn's is going to be staying. We know that.
A. I don't know that for certain, no.
Q. Have you noticed that on the SPs Mervyn's is
consistently in all of the plans?
A. 1 notice that they show the Mervyn's building
remaining. That doesn't necessarily mean that Mervyn's
will be remaining. It's relatively the newest — one of
the newest structures in the center. The specific plan
does not also specifically call out Mervyn's as remaining.
Q. Is that so?
A. Yeah. They talked —the specific plan just
talks about retail 82,000 square feet. It doesn't identify
any tenants.
Q. Okay. When you stated here, "To that end, the
Agency" -- look at the third paragraph — "the Agency has
determined that in order to revitalize the economy of the
center, and to best achieve the redevelopment goals of the
Agency and Redevelopment Plan, the Agency may need to
253
encourage comprehensive changes to both the structural and
tenant composition of the Huntington Center."
Your comments referred to Burlington Coat
Factory?
A. Not necessarily, no.
Q. Under what conditions do they refer to Burlington
Coat Factory?
A. That hasn't been — I don't know at this poin4
so..
Q. When you say, "The Agency believes that unified
development of the center will allow for the oversight,"
does that mean you want to get rid of Montgomery Ward's?
A. I'm sorry, what are you referring to?
Q. The next sentence.
A. How does it start?
Q. 'The Agency believes that unified development of
the Huntington Center will allow for the oversight and site
control necessary" —
A. Well, there have been issues in moving forward
with mostly actually reciprocal easements You know, when
we were working with Macerich, Ward's at that point was In
bankruptcy and wasn't able to participate in the proposed
redevelopment. So, you know, Macerich's proposal sort of
ignored that end of the site since under the reciprocal
easement, they couldn't really cause anything. That's
254
1 really referring to, for example, separate ownership where
2 people can, in fad, block the upgrade of the center.
3 Q. Are you aware if Burlington Coat Factory has any
4 REAs reciprocal easement agreements?
5 A. Not specifically. My only experience has only
6 been in relationship to Ward's
7 Q. Have you asked anybody to determine whether
8 Burlington has any rights under REAs?
9 A. No. That's been the purview of the developer.
10 We've asked them to work with existing tenants to resolve
11 whatever issues under their existing contr actural
12 relationships
13 Q. Meaning, Ezralow will work it out with
14 Burlington?
15 A. Yes, that's what we've been asking to occur.
16 Q. And are you aware — do you know that Burlington
17 has REAs at that shopping center?
18 A. It's not unusual for major tenants to have REAs.
19 Am I specifically aware that Burlington assumed — I would
20 have assumed — usually, it's major department stores. 1
21 know JC Penney's would have had them as an original anchor
22 there. So I don't know if at the time that Macerich leased
23 to Burlington, whether those continued on to Burlington or
24 not. I don't specifically know, no.
25 Q. Are you aware that Burlington's REAs are
255
1 identical to those of Montgomery Ward's?
2 A. No.
3 Q. Is that something that concerns you?
4 A. Not necessarily.
5 Q. Later on with respect to determining the gap, it
6 will?
7 A. Weft, I don't know that to be the case.
8 Q. When you analyze the financials relative to
9 Burlington, the REAs could have an impact on that?
10 A. Well, I don't know that to be the case
11 necessarily.
12 Q. Okay. Is that within your purview to determine
13 if there are REAs, and if there are, what value they have?
14 A. Weil, you're assuming there that the gap is
15 ultimately determined — you know, if there's a cap on what
16 the gap is, if there's costs above that, that's going to be
17 the developer's issue. This is not an open-ended
18 opportunity for as to assist financially. So to a certain
19 degree we don't really care. The developer could tell as
20 they need $80 million, but we're still only going to put in
21 X amount. So they have to have to finance that through
22 another source.
23 So, no, it's not necessarily germane depending on
24 how the financial transaction. The developer takes
25 those — you know, if they're extraordinary costs we're not
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1 aware of and the developer has not raised those in our
1
2 discussons, then that's the developer's obligation to pay
2
3 those, and they have not raised them from my perspective.
3
4 Q. You say, "In addition, agency expert consultants
4
5 confirm that unified development and maintenance of the
5
6 Huntington Center in the highest standards will enable the
6
7 center to," and then it goes on.
7
8 What expert consultants?
8
9 A. That would be Keyser Marston. Jim Rabe at Keyser
9
10 Marston.
10
l 1 Q. R-a-b-c. Anyone else?
11
12 A. In general, we've bad — we've talked — we use
12
13 another firm called the Sedway Group, Lynn Sedway and Card
13
14 Freholm there. I'm just talking in general for what makes
14
15 for a successful retail project.
15
16 Q. Has Jim Rabe given you anything in writing
16
17 pertaining to Burlington Coat Factory?
17
18 A. No.
18
19 Q. Has Carol Freholm given you anything in writing
19
20 pertaining to Burlington Coat Factory?
20
21 A. No.
21
22 Q. Has the other person from Saybrook — what's her
22
23 name?
23
24 A. Rebecca Casey Seidel
24
25 Q. Has Rebecca Casey Seidel — C-a-s-e-y; Seidel,
25
257
1
S-e-i-d-e-I -- provided you with any written reports
1
2
pertaining to Burlington?
2
3
A. No, none of our efforts to date have been driven
3
4
specifically by any proposed or existing tenants.
4
5
Q. Have any of these experts expressed anything one
5
6
way or the other relative to Burlington?
6
7
A. Just in general, the same thing I've expressed
7
8
that depending on the ultimate makeup and composition of
8
9
the center, co -tenancy becomes very important issues, but
9
10
we don't know — ultimately know who the tenants will be.
10
11
So, as a matter of fact, we're still working on that
11
12
analysis. We're asking the developer to give as an
12
13
indication of what the tenant mix might be, and then we'll
13
14
analyze that specifically.
14
15
Q. When will it be determined what the tenant mix
15
16
will be?
16
17
A.. I don't know. With most retail projects, it may
17
18
not be for quite a while._
18
19
Q. And why is that?
19
20
A. Well, because people sort of have to sign on
20
21
leases and, you know, know that there's a level of — an
21
22
idea that a project is moving forward, so, you know,
22
23
development is sort of not a precise science, based on my
23
24
experience.
24
25
Q. Does the tenant mix have to be fixed prior to
25
258
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
entering into the OPA?
A. No, not necessarily.
Q. Some idea of the tenant mix should be known prior
to entering into the OPA; is that correct?
A. Not necessarily.
Q. Do you have a target in this case?
MR. TEPPER: For what?
BY MR. TUCHMAN:
Q. For determining whether you should have any or
all of your tenant mix determined prior to entering into
your OPA with Ezralow.
A. We haven't really discussed this. No, not at
this point I'm familiar with other sites where — there's
a project in Long Beach that the Agency committed — they
wouldn't convey the site antil they had 60 percent
pre -leasing commitments, but we have not had those specific
discussions.
Q. Is it your expectation to enter into the OPA
without having any of the tenants determined?
A. It could occur.
Q. As it stands right now, do you have any tenants
for the shopping centeft
A. Do I have any?
Q. Yeah.
A. Well, that's not oar role. We don't get fit
259
tenants for the shopping center. Ezralow has indicated
they've got some letters of intent, but I don't know
specifically with which tenants. They've actually — most
developers are hesitant to sort of start to talk about
tenants with, you know, public people like myself, because,
you know, they're trying to work to get a whole array of
tenants lined up together, and to the extent there's a lot
of speculation in the marketplace, it's counter -productive,
so—
Q. Who signs these letters of intent?
A. I don't know. You're asking about who — which
tenants have signed them with Ezralow?
Q. Yeah.
A. That would be a question to ask Ezralow. I don't
know the specifics of the tenants.
Q. You're not concerned with that right now?
A. No, not at this point, no.
Q. They haven'tsent you these letters of intent?
A. No. No. They wouldn't normally send them to us.
Q. You don't have a file of which tenants go where?
A. No.
Q. Okay. Before the OPA is entered into, are you
going to be concerned about the letters of intent?
A. Not necessarily, we've entered into DDAs with
developers on sites where they don't have any tenant
260
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1 commitments before we enter into a DDA. Actually, that's
2 the normal course of basiuess.
3 Q. may. Has anybody told you that if Burlington
4 Coat Factory's structure remains, you're not going to have
5 cinemas there?
6 A. Has anyone told me that? No, because actually
7 there was a proposal earlier when Macerich was going to do
8 the center just to put the cinemas where Broadway is. So I
9 don't think that necessarily precludes cinemas.
10 Q. Has anybody told you that though?
11 A. Not that I can recall.
12 Q. Okay. Is there anything that Ezralow Company has
13 not submitted that they need to submit to complete the OPA?
14 A. Has not submitted? Well, since we haven't
15 finished negotiating an OPA, I can't answer that question
16 for you, so —
l7 Q. Well, did Ezralow submit everything that you
18 requested to comply with your request for proposal?
19 A. I don't recall, but that's not germane as to
20 whether or not we can enter into an OPA with them.
21 Q. Okay. Did Ezralow provide you with everything
22 you needed to make a full and informed decision to select
23 them as a developer?
24 A. I believe so, yes.
25 Q. Did Ezralow fail to provide the City of
261
1 Huntington Beach and the Redevelopment Agency through its
2 Economic Development Department with anything that the
3 department requested?
4 A. I don't recall offhand.
5 Q. Is there anything that the Ezralow Company did
6 not submit in connection with the request for proposal that
7 they still have to submit to you?
8 A. No. By this very action, we were satisfied with
9 what was presented, and we selected them as the developer.
10 Q. Prior to entering into the OPA, do they have to
11 deposit money?
12 A. Not necessarily. We usually have a good faith
13 deposit from developers, but usually that's where they
14 don't own a site. You know, in this instance, I don't
15 know. We might have a good faith deposit of, you know,
16 100•, 200AM but that's not been negotiated.
17 Q: Do you anticipate that this 100- to $200,000 will
18 be — a deposit will be given to you a. month before the OPA
19 is entered into?-
20 A. Usually, it's not due until after the OPA is
21 entered Into. Usually, there's a time frame, within a
22 certain amount of time, 15 days or 10 days it's deposited.
23 Q. After the —
24 A. Or it's a default item, and then we put a notice
25- of default, and after the default period, if they didn't
262
9
10
11
12
13
14
provide a good faith deposit —
THE REPORTER: Pm sorry, "And after"?
MR. TEPPER: I thought you said "cure period."
THE WITNESS: After their cure period, we would
send a default notice. And after the cure period, if they
didn't cure, the OPA would terminate.
BY MR. TUCHMAN:
Q. Okay. Looking at the last paragraph of your RAA,
and it says, the second sentence, "if the recommendation is
approved, staff will negotiate for a 60-day period."
Where did you come up with the 60 days?
A. It seemed to be a reasonable period of time.
Q. At the time it seemed to be reasonable?
A. Right.
15 Q. Now it seems like it's a little quick?
16 A. Well, this was approved June 19th; June, July,
17 August, September. By the time we put in, we probably will
18 have substantially completed negotiations during the 60-day
19 period.
20 Q. And you anticipate the OPA will be entered into
21 when?
22 A. Depending on how things go, probably September:
23 A second Council meeting in September will be the public
24 hearing, joint public hearing.
25 Q. "During which a selected participant shall be
263
1 required to provide adequate assurances to the Agency that
2 the participant has definitive plans for and is capable of
3 attracting the accommodation and caliber of tenants as well
4 as financing necessary to rehabilitate and reposition the
5 entire Huntington Center into a first-rate, unified
6 development."
7 Has Ezralow provided these adequate assurances?
8 A. We're working on them -- on that now with them.
9 Q. What adequate assurances have they provided?
10 A. I said we're working on that with them now.
11 Q. Okay. Have any of them been provided?
12 A. Well, we're working on them in defining what
13 those will be, and those will be presented at the time we
14 present the Owner Participation Agreement for
15 consideration.
16 Q. Well, it says, "During the time period" --
17 A. We're still during the time period. We're still
18 negotiating, so we're not done. It's work in progress.
19 Q. Has anything been provided to the Economic
20 Development Department by way of written adequate
21 assurances for these issues, including attracting
22 tenants --
23 A. Not specifically, no. At this time we're
24 defining what those will be.
25 Q. So they've provided nothing to you in writing
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1 after June 19th, 2000?
2 A. I'm trying to think. Anything that's been
3 provided has been provided to you other than the things in
4 the privileged list I don't recall if any of those were
5 after June 19th or not, but did they provide any updated
6 performas or anything? I don't think so at this point in
7 time.
8 Q. When do you anticipate that those will be
9 provided?
10 A. Well, we meet on a weekly basis, so, you know, it
11 could be any time between now and when the Owner
12 Participation Agreement is approved.
13 Q. Okay. So you expect that you will have, prior to
14 the OPA being entered into, adequate assurances that they
15 have definitive plans for and are capable of attracting
16 accommodation of a caliber of tenants?
17 A. Well, sufficient enough for as to render an
18 approval for an Owner Participation Agreement.
19 Q. Now, how do these assurances get provided to
20 , you? Is there some memo saying these are the tenants we
21 have or these are tenants we intend to keep?
22 A. Well, we probably would ask for them to identify
23 tenants that they have committed to the site either through
24 existing leases or letters of intent We will probably —
25 it's not just tenant -driven. We'll probably ask them for
265
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
I A. Let's see, Bryan E—low, Doug Gray, Gary — I
2 can't ever remember Gary's last name with Ezralow. Gary,
3 Jim Hughes. Murray [Cane, Go Duran. Jim Rabe. Rebecca Casey
4 Seidet, Mark Plckek myself, and I think that was it who
5 was there.
6 Q. How long did this meeting last?
7 A. Ob, about as hoar.
8 Q. Was this deposition discussed?
9 A. No, other than just that I had had a deposition
10 and what time, how long did it take, you know, and the fad
I I I arrived here on Tuesday at 1:3% and we had a cancel —
12 or was it Monday —
13 MR. TEPPER: Monday.
14 TEE WETNESS: And then had to come back on
15 Tuesday, so —
16 BY MR. TUCEMAN:
17 Q. Did you discuss the lawsuit?
18 A. Not specifically, ao.
19 Q. Well, generally, you did?
20 A. Pardon?
21 Q. Generally, you did?
22 A. Only, in the context of we discussed what a
23 pleasure it is to be in depoddoas with you; but, no, woj:
24 didn't discuss the lawsuit
25 Q. What did you say about the pleasure of having a
1 evidence of financial commitments. You know, we have met I 1
2
witli, their two primary leaders, Principal Group and
2
3
erica, earlier on.
3
4
You know, definitive plans, I think you're — you
4
5
know, that could also be a plan in writing as far as how
5
6
they're going to tenant the center and what their plan is
6
7
for processing plan& It's not necessarily a plan as far
7
8
as a physical drawing of who is going to be where.
8
9
Q. Does the Redevelopment Agency — and you're here
9
10
as the Person Most Knowledgeable from it, and you're the
10
11
Director of the Economic Development Department — have the
11
12
power to say, if Burlington is not included, to tell them
12
13 .
to include Burlington?
13
14
A. No, I wouldn't believe we do have that
14
15
authority. INs like we could tell theses -we want Tiffany's
15
16
and they've got to include Tiffany's, but, you know, maybe
16
17
they caWt get TiRhay'&
17
18
Q. Okay. You said you have weekly meetings with
18
19
Ezralow.
19
20
A. Yes.
20
21
Q. When was your last meeting with Ezralow?
21
22
A. It was this week on Thursday.
22
23
Q. On Thursday. That's yesterday.
23
24
A. Yes.
24
25
Q. Who was present?
25
266
267
deposition taken?
A. That it's not much of a pleasure.
Q. Okay. And what else did you say?
A. In regard to what?
Q. In regard to the lawsuit.
A. We didn't really discuss the lawsuit
Q. Did you have a conversation with Mr. Bryan
Ezralow about this — about bis need to contact Burlington
Coat Factory?
A. About his need to contact Burlington Coat
Factory? We did encourage them to continue to work with
Burlington if they could.
Q. What words did you use, Mr. Biggs?
A. I don't recall specifically.
Q. You don4 recall what you said to Bryan Ezralow
yesterday?
A. Yeah. Actually, I don't recall specifically
word -tor -word We did indicate that they should still
continue to work with Ward's and Burlington. The main
focus of the meeting on other elements of the project, to
ask them to describe their proposed tenant mix and how
various players would fit into that, including Burlington
and Montgomery Ward's, so we could evaluate that.
Q. Well, what did they say about their tenant mix?
A. Well, they're going to be meeting next week to
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BURLINGTON V. HUNTINGTON
1 develop that information and provide it to as so we can
1
2 assess that.
2
3 Q. When are you meeting next week?
3
4 A. We meet every Thursday.
4
5 Q. Thursday, what time?
5
6 A. We meet usually 1:30 to 2:30, give or take.
6
7 Q. What did Mr. Gray say about the litigation?
7
8 A. We didn't discuss the litigation, specifically.
8
9 Q. Did Mr. Ezralow respond that he would be
9
10 contacting Burlington?
10
11 A. No, actually, not at that meeting.
11
12 Q. Did he indicate he'd be contacting Burlington to
12
13 you at any time in the past two weeks?
13
14 A. No. Matter of fact, yesterday afternoon I called
14
15 him again and suggested he contact the CEO of Burlingtom
15
16 Q. Why did you do that?
16
17 A. Because the CEO of Burlington had a discussion
17
18 with one of our residents who had spoken with the City
18
19 Attorney and said that Ezralow and the City was unwilling
19
20 to meet with them. And so we just said that Brian is the
20
21 CEO, or the CEO should call him and tell him that, you
21
22 know, and say they would be willing to meet with
22
23 Burlington, but they've been advised by Burlington's
23
24 attorney here in California that they shouldn't meet with
24
25 them except for from attorney to attorney.
25
269
1
Q. Okay. And that's what Bryan Ezralow said to you?
1
2
A. I'm sorry. No, that's what Zurk Mackler
2
3
(phonetic), who knows Mark Nessy, said to Gail Hutton, our
3
4
City Attorney, so that's really by third party. She told
4
5
me if I would encourage Brian to contact Burlington's CEO
5
6
directly.
6
7
Q. You think that's a good idea; right?
7
8
A. Well, sure. Yeah, actually, I think it would be
8
9
good for them to sit down face-to-face.
9
10
Q. Do you want to participate in this meeting?
10
11
A. We told them we would.
11
12
Q. And you would be present?
12
13
A. Yea
13
14
Q. Anybody else from the City that wants to be
14
15
present?
15
16
A. Wants to be present? I doaTknow. Probably
16
17
depending on when it takes place, it would probably be me
17
18
and Ray Silver who would sit in on that.
18
19
Q. Did you speak to Mr. Mackler at all?
19
20
A. No, I haven't spoken to Mr. Mockler about this in
20
21
particular.
21
22
Q. Did you ever speak to Mr. Nessy?
22
23
A. No, I've never spoken to him.
23
24
Q. Did you indicate to Mr. Ezralow that the City
24
25
was -- that this meeting should take place instead of this
25
270
litigation?
A. Pardon?
Q. Did you mention to Mr. Ezralow that this
discussion should take place instead of the litigation?
A. No, not specifically.
Q. Did you tell Mr. Ezralow about your deposition or
Mr. Duran's deposition?
A. About the fact that we had been deposed, but not
any of the contents of the deposition or the line of
questioning.
Q. Did you discuss with Mr. Ezralow the fact that
the June 5 memo that Mr. Silver initialed but didn't author
could haunt you?
A. No, no. I'm not concerned about that at all,
SO -
Q. That's good Your confidence is appreciated.
A. Yeah, I'm absolutely certain, you know, that we
acted in a proper manner.
Q. Did you discuss that memo at the meeting
yesterday?
A. No.
Q. Did you discuss — what did Mr. Kane say at that
meeting yesterday?
A. I don't recall particularly.
Q. Did he say anything?
271
A. Oh, certainly. You know, an hour long
conversation with eight people, so —
Q. Did — what did the person from Saybrook say?
A. We were mostly talking about the potential
formation of community facilities district of a mechanism
to finance public improvements for the project and what the
timing Is to form a CFD. We've used that as a financing
mechanism for the proposed waterfront expansion and also
probably downtown. So it was to discuss the public
financing opportunities.
Q. This was when Mr. Kane was present?
A. Certainly.
Q. You discussed the waterfront with Mr. Kane
present?
A. No, we used the CFD — Mr. Kane is our counsel
for the waterfront, so we were using the waterfront project
to illustrate bow we would set up and consider a community
facilities district for the project.
Q. Who is Mr. Jim Hughes again?
A. I believe he's Mr. Ezralow's attorney.
Q. Okay. And what did Jim Hughes say?
A. Let's see, mostly — well, we talked about
formation of the community facilities district and we
talked about scheduling for consideration of the Owner
Participation Agreement and we talked about Murray Kane and
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1 Jim had been meeting and drafting an Owner Participation
1
Ezralow, and Doug Gray. Was there anyone else?
2 Agreement, so they updated people on their efforts. We
2
A. Yeah, I mentioned Gary. I can't remember Gary's
3 discussed a reconsideration of the specific plan coming up
3
last name.
4 on the 7tiL Oh, Jane James was in the meeting as well for
4
Q. What is Gary's title?
5 about the first 4S minutes, give or take. So we discussed
5
A. I don't recall.
6 the schedule for that, and the staff's recommendation
6
Q. And what did Gary say?
7 against the drive -through; the planning staff Is still —
7
A. I don't recall Gary saying anything during the
8 the drive -through, that they drafted language to that
8
meeting.
9 effect; council wants to approve the drive -through bakery,
9
Q. Was there a resolution coming out of that
10 as to what that language would be.
10
meeting?
11 So general -- you know, generally, when we do a
11
A. A resolution?
12 weekly meeting, it's, you know, discussing the financing.
12
Q. Yes.
13 We discussed the schedule for consideration of the Owner
13
A. No, it was just a progress meeting and our
14 Participation Agreement; when Jim Rabe would have to finish
14
negotiations, so —
15 his 33433 report; when Mr. Hughes would have to sign off on
15
Q. Okay. I want to show you a document that's been
16 the DDA/OPA for his client so they can meet the public
16
previously marked as Exhibit 19, and this is -- this is an
17 hearing deadlines. That was the general context of the
17
RAA for the July 17, 2000, meeting of the City
18 meeting.
18
Council/Redevelopment Agency.
19 Q. Was there a report done as a result of this
19
Did you prepare Exhibit 19?
20 meeting?
20
A. No, actually, it was prepared by another staff
21 A. No.
21
person. I made changes to it as a draft
22 Q. Were there any writings exchanged at this
22
Q. These are your initials here?
23 meeting?
23
A. Yes.
24 A. No.
24
Q. Why was this prepared by both the Director of
25 Q. Did Mr. Hughes mention anything about Burlington?
25
Economic Development -- that's you — and Mr. Zelefsky, the
273 1 275
1 A. Not that I recall, other — no, I don't think
1
Director of Planning?
2 Mr. Hughes mentioned anything about Burlington.
2
A. Well, we quite often do joint requests for
3 Q. Who mentioned something about Burlington?
3
council actions when It involves a work program that will
4 A. Doug Gray reiterated that they had received — I
4
involve both departments.
5 think he had had a contact with the vice president of real
5
Q. How does this involve both departments, the
6 estate, and we were talking about, again, encouraging
6
Edinger Corridor?
7 F_zralow to meet with Burlington. And Mr. Gray indicated he
7
A. Because in this particular interest — instance,
8 had received a letter back or a letter had come from you
8
the Redevelopment Agency is paying for the specific plan
9 saying that they were only going to meet with the
9
and also the planner to staff the specific planning effort
10 attorneys, so —
10
and, you know, we are the ones who did the request for
11 Q. Okay. Do you feel that's an impediment,
I
proposals for the consultants.
l2 Mr. Biggs?
12
Q. Would you say that the Director of Economic
13 A. Certainly.
13
Development and the Director of Planning were equals on
14 Q. Why do you feel that way?
14
this project or is one superior to the other?
15 A.- I always fed attorneys are generally
15
A. Well, when you say — yeah, we're probably equals
16 impedimenta..
16
because, you know, we're the lead department in this
17 Q. Okay.
17
particular instance, the Economic Development Department,
18 MR. TEPPER: You said the same thing about me.
18
because this is for an economic development action plan
19 1 don't mind. I'm not offended.
19
together with the specific plan. So we're the lead
20 BY MR. TUCHMAN:
20
department, but, you know, we're doing this jointly.
21 Q. All right. What else did Mr. Gray say about
21
Q. Now, this RAA was submitted jointly by you and
22 Burlington?
22
Mr. Zelefsky; correct?
23 A. That was pretty much it.
23
A. Uh-huh.
24 Q. The Burlington people that were there -- the
24
Q. Is that a "yes"?
25 Ezralow people that were there were Hughes, was Bryan
25
A. Yes, sorry.
274 I 276
28 (Pages 273 to 276)
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BURLINGTON V. HUNTINGTON
I Q. Why does it have to be submitted to Ray Silver
1
Q. Do you see there's a CC of it to you there?
2 before it's submitted to the Council?
2
A. Yea
3 A. That's the way our format Is. I mean, they're
3
Q. Okay. Did you request copies of all leases at
4 all done this way.
4
the Huntington Center from Ezralow?
5 Q. How many times in the past one year have both
5
A. Yes, I think we did.
6 David Biggs and Howard Zelefsky jointly on behalf of their
6
Q. Did you receive them?
7 respective developments submitted a request for
7
A. I believe Gas did.
8 redevelopment agency action and request for Council action?
8
Q. Okay. And why did you at the Economic
9 A. Oh, probably, just off recollection, at least a
9
Development Department request copies of all leases?
10 half dozen times.
10
A. So we could determine which tenant should receive
11 Q. Okay. So that's not unusual?
11
the owner participation solicitation.
12 A. It's not unusual, no. And a lot of times there
12
Q. Is there any other reason you requested the
13 are RCAs that are signed by six or seven departments if —
13
leases?
14 you know, quite often they're planning economic development
14
A. No.
15 and Public Works or community services. It depends on
15
Q. And after reviewing those leases, did you
t6 what's occurring.
16
determine who should receive the Owner Participation
17 Q. Okay. When you prepared or corrected Exhibit 19,
17
Agreement requests?
18 what corrections did you make?
18
A. Gosh. I don't remember who we sent them out to,
19 A. I don't recall offhand
19
but it would have been the ones just from memory, and it's
20 Q. What effect, if any, did the Edinger Corridor
20
not an exhaustive list. We would have sent them out to
21 plan have on Burlington?
21
Burlington, Mervyn's, Barnes & Noble, Macaroni Grill. I
22 A. Well, Burlington owns the piece of property
22
think there was still one or two of the small shops in
23 across the street, so I think they still own the building
23
place, but Gas might be able to give you a better list.
24 where they used to be occupied So they'll be one of the
24
Q. Did you ever speak to an attorney named Wallach?
25 property owners that be involved in the specific planning
25
A. Not that I recall.
277 1 279
1
effort. This is the one I used, the illustration where
1
Q. Did you ever speak to an attorney for a number of
2
we're planning on doing three workshops with property
2
the tenants who were evicted?
3
owners, tenants, and other interested parties to sort of
3
A. Not that I can recall.
4
develop the ideas.
4
Q. Do you remember if there was an issue with
5
We're going to be developing street scape ideas,
5
respect to that around that, March of 2000?
6
signage ideas, maybe design guidelines for the area, you
6
A. I do know that Ezralow worked with their tenants
7
know, other opportunities for joint marketing of the area
7
to — they either -- I understood they had tenants whose
8
under an economic development action plan. So it's really
8
leases were month -to -month, and they did give notice of a
9
not been defined yet
9
termination. So I was aware that that was generally
10
Q. What effect does this redevelopment plan for
10•
happening. As a matter of fack, I mentioned Jim Iamb --
11
the —
11
one of the things I assigned him to do was to give the
12
A. It's not a redevelopment plan.
12
tenants referrals for other places they might go in the
13
Q. I'm sorry. What?
13
city.
14
A. It's not a redevelopment plan.
14
Q. Was a meeting requested by any of these tenants
15
Q. What effect does your Edinger Corridor Economic
15
with you?
16
Development Action Plan and Specific Plan have on
16
A. Not that I can recall.
17
Burlington's tenancy?
17
Q. Did you ever refuse to meet with any of these
18
A. Wbere3.
18
tenants?
19
Q. At the Huntingtoq.Center mall.
19
A. Matter of fact, I talked to a couple of them on
20
A. None, as far as I can imagine.
20
occasion.
21
Q. Okay. I'm going to ask you to take a look at
21
Q. Over the phone?
22
Exhibit 22. It's been previously marked. Do you recognize
22
A. Over the phone, yeah.
23
Exhibit 22? It's a letter dated April 24, 2000, to
23
Q. Take a look at Exhibit 23. Do you recognize
24
Mr. Duran from Melissa Brian of the Ezralow Company.
24
Exhibit 23?
25
A. Not specifically.
25
A. Not specifically.
278 I 280
29 (Pages 277 to 280)
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1 Q. Okay. Take a look at the — by the way,
2 Exhibit 23 is the May 2, 2000, correction letter from
3 Whitman, Breed, Abbott & Morgan, and then underneath it is
4 the actual letter of May 2, 2000.
5 A. This was in response to the request for owner
6 proposals.
7 Q. Okay. And the development proposal that's
8 Exhibit 23 -- and Ill show you my exhibit. This has all
9 the enclosures with it -- do you recognize this one?
t0 A. Again, not specifically. Well, generally, I
11 recognize it as what was included with the request for
12 Council action for — that we earlier referred to in
13 response to the owner participation requests.
14 Q. Now, this was the -- this was Specific Plan
15 No. 13 that was submitted. Why don you take a look at
16 Exhibit 4, the statistical summary, and then look at the
17
18
19
20
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one on the back. See if there —
MR. TEPPER: Before we get into this thing, you
said that this is Specific Plan 13?
MR. TUCHMAN: Sure.
MR. TEPPER: I don't — I would -- okay. I just
want to make sure that I'm correct.
THE WITNESS: All right.
BY MR. TUCHMAN:
Q. Exhibit 4 here had anchors, 82,000; okay?
281
A. Uh-huh.
Q. And then to be demolished at 646,718 square
feet. This anchors — do you know which store that
referred to?
A. Not specifically, no.
Q. Do you know if that referred to Mervyn's?
A. It's the same square footage as Mervyn's.
Q. Did you have any input in the preparation of
Exhibit 4 to Specific Plan 13, which was attached to
Exhibit 23?
A. No.
Q. It was an alternative of Exhibit 4. It's on the
back here. It's part of the exhibit, and this one put in
the anchors at 211,488 square feet with -- to be demolished
at 517,231.
Do you see that?
A. Yes.
Q. Do you know why there were two Exhibit 4s that
were put on the SP-13?
A. No. Again, my understanding was" was just
illustrating a variety of developments as it could occur
within the parameters of the specific plan.
Q. Do you know why the SP-13 document attached to
Exhibit 13 has tables that are different from SP-12, which
put the 82,000 square feet as Mervyn's?
282
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 A. No, I don't know why. Just, you know, I think
2 , over time I have a recollection that the specific pin
3 should not refer to any tenants, either existing or future,
4 because it's meant to be a more general planning document,
5 even though it's called a specific plan, more specific in
6 the Zoning Code, but it's not a development proposal based
7 on specific tenants.
8 Q. Okay. Let's hang on a second. Now, when you got
9 this SP as part of your -- as part of your OPA, why did
10 they have to submit this SP with their proposal?
11 A. Well, they didn't have to. They just asked them
12 to submit something that illustrated the type of
13 development they were contemplating.
14 Q. Because I had thought that this was a separate
15 process with the Planning Department.
16 A. Well, it was, but, again, you know, they probably
17 provided it because it was convenient because they were
18 working on this.
19 Q. Okay. And when you reviewed the proposal, did
20 you consider the SP-13 in determining if you were going to
21 recommend that Ezralow develop the property?
22 A. Only to the extent that we looked at the
23 conceptual drawings as far as the quality of the site they
24 were proposing.
25 Q. Okay. You considered it; right?
283
1 A. Certainly. They could have submitted the
2 renderings by themselves, and we would have considered it.
3 Q. Okay. Did you write them back and — Ezralow
4 back and say, "Why are you submitting the SP? This is a
5 different process"?
6 A. No, that's unnecessary, so —
7 Q. Okay.
8 A. And they could have submitted, you know — they
9 could have submitted a specific plan that was for another
10 site illustrate — in another city to Wastrate the
11 quality of the project they were contemplating. It was
12 meant to be — if you look at what we asked for in the RFQ,
13 we asked for them to submit something that would indicate
14 the scope and nature and quality of the type of development
15 they were proposed to undertake.
16 Q: Well, this wasn't a "for example," this was right
17 down the line with your project, wasn't it?
18 A. Pardon?
19 Q. This wasn't a "for example"?
20 A. That was their election, to submit the specific
21 plan to illustrate their concept.
22 Q. You didn't send it back to them, did you?
23 A. Well, we didn't send back your proposal and say
24 that it was inadequate because it didn't include this. We
25 just evaluated what was submitted.
284
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BURLINGTON V. HUNTINGTON
1 MR. TUCHMAN: What exhibit are we on, 138?
2 MR. WATSON: Yeah, I think so.
3 MR. TUCHMAN: That was Mark's job. Just kidding.
4 BY MIL TUCHMAN:
5 Q. Exhibit 138 is The Crossings at Huntington Beach,
6 City of Huntington Beach Specific Plan No. 12. Take a look
7 at 138.
8 Do you recognize it7
9 A. Again, not specifically. I mean, I've looked at
10 various drafts of this throughout the process, so this
11 could have been a draft that I could have looked at.
12 (Plaintiff's Exhibit 138 was marked
13 for identification by the court
14 reporter and is attached hereto.)
15 BY MR., TUCHMAN:
16 Q. Okay. Did you prepare this?
17 A. No.
18 Q. Did the Economic Development Department prepare
19 Exhibit 138?
20 A. No.
21 Q. Did the Economic Development Department prepare
22 Specific Plan No. 13?
23 A. No.
24 Q. This document here, if you take a look at
25 Exhibit 4 to it, which I see you re going to it —
t1-1-1
1 A. That's Exhibit 3. Exhibit 3; Exhibit 4 —
2 Q. Yeah. Do you see that there on Exhibit 4? It
3 says, "Existing to remain, Mervyn's; 82,000 square feet."
4 Do you see that?
5 A. Yes.
6 Q. And then it says, '"robe demolished, 646,719."
7 When you received — when you received —
8 actually, have you ever seen SP-12?
9 A. I don't recall specifically. As I said, I've
10 reviewed every iteration of the specific plan that came
11. through. You know, do I know that this one is the
12 particular one I reviewed, I don't recall.
13 Q. Do you know how it came about — pardon me —
14 that Exhibit 4, which is attached to the SP-13, was changed
15 where it became Mervyn's to anchors?--
16 A. You asked that a minute aga
17 Q. Yeah_
18 _ A. Do you not recall the response?
19 Q. I just want to make sun: we're clear.
20 A. My recollection was the planning staff told the
21 developer that it was inappropriate to refer to any
22 specific tenant, and so they deleted — you see here, it
23 went from "Roman's" to "Restaurants" and then from "B of
24 A" to "banks."
25 You know, the other thing I also recall earlier
286
1 on, that when we were — this iteration of the specific
2 plan, what it indicated was while this 82,000 square foot
3 building would stay, there was still in retail plenty of
4 room to accommodate other users, including Burlington, if
5 they chose to stay on the site and/or Ezralow chose to have
6 them stay, whether they had the right of relocation.
7 Now, again, I don't know the specifics of their
8 lease, but that was generally how it was represented to
9 me. So that never caused me concern because existing
10 tenants who were in buildings that needed to be relocated
11 could be moved to another site.
12 Q. Are you aware that this change came about because
13 of the pending litigation between Ezralow and Burlington?
14 A. No, I don't know that to be a fact
15 Q. Did anybody tell you that?
16 A. No, not that I'm aware of.
17 Q. Do you know — it's referred to hereon SP-12,
18 "Prepared by Huntington Property Associates, LLC."
19 Do you know who they are?
20 A. Specifically, Huntington Properties? I don't
21 know if that's — if that's Huntington Center Associates,
22 LLC, but that probably is referring to the Burlington —
23 excuse me, the Ezralow entity that owns the center,
24 whether that's jag a typo or, you know, I have the name,
25 wrong.
287
1 Q. It says Greenberg Farrow Architects. Those
2 people are hired by the City?
3 A. I don't know. I don't believe they were hired by
4 the City. They weren't hired by Economic Development
5 Q. Do you know if they were ever hired by Ezralow?
6 A. I believe they were.
7 Q. Okay. Did you ever speak to Mr. Kota?
8 A. Not that I can recall. Probably Greenberg Farrow
9 has been to meetings that I've sat in where -- the project
10 planning meetings. Do I remember individuals in the firm
11 by name, not necessarily. If he walked In the room, I
12 might say, "Yes, that's someone I've been in a meeting with
13 before."
14 Q. You're not intimately familiar with Mr. Kota or
15 Greenberg Farrow; Right?
16 A. That's not to say I haven't met him, but I
17 couldn't say precisely who he is. .
18 Q. There's another reference here on SP-12, Hall &
19 Foreman, F-o-r-e-m-a-a. Do you know who they are?
20 A. I think they're civil engineers.
21 Q. Okay. Did the City or the Redevelopment Agency
22 hire Hall & Foreman in connection with Huntington
23 Crossings?
24 A. I don't believe so.
25 Q. Did Ezralow hire them?
288
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i A. I think they were the consultant team that
2 Ezralow hired, yes.
3 Q. Did you ever talk to anybody at Hall & Foreman?
4 A. Probably. during the course of meetings, but I
5 don't tell specifically who and what it would have been
6 concerning.
7 Q. So if a principal of Hall & Foreman walked in the
8 room, you wouldn't know who he was?
9 A. I might if I walked in the room and I recognized
10
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him.
Q. Okay. The next one here it says --
A. I'll stipulate to the same thing for all three
consultants listed there, if you'd like. I think Linscott
Law & Greenspan are landscape architects.
Q. Linscott Law & Greenspan. They're what now?
A. I think they're landscape architects, one of the
consultants working on the project.
Q. And they weren't hired by the City or the
Redevelopment Agency?
A. No.
Q. Okay. Now, it says here, "Adopted blank 2000,
Ordinance number, March 20th, 2000."
Do you see that?
A. Yes.
Q. Okay. Do you know what that means?
289
A. No, not specifically. That would be a question
for the Planning Department.
Q. Did you have a discussion with anyone from
Ezralow as to the representations that were made in court
in the first case on March 31, 2000?
A. Not that I r AIL
Q. This SP-12 that was submitted— that was
submitted to the City, were you aware that this SP-12 was
submitted to the City when you did your declaration on
March the 20th or 21st, 2000?
A. I was aware that we were processing a specific
plan. I don't know if it referred to Specific Plan 12 or
which iteration of the specific plan.
Q. When you drafted your — or when you signed your
declaration under penalty of perjury-, Mr. Biggs, were you
aware or unaware of the information contained in SP-12,
which put.the existing tenants to remain, Mervyn's at
82,000, were you aware of this chart?
A. Agaia, until I can specifically go back and
double check what I had in my possession at that time. I
was aware of this chart generally being in various
iterations of the specific plan, yes.
Q. Were you aware as of March the 21st, 2000, that
there was a contemplation in the specific plans that were
submitted to the City of Huntington Beach that the premises
290
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 of Burlington Coat Factory would be demolished?
2 A. Yes. On the basis that the developer had the
3 tight of relocation, that they could put them somewhere
4 else in the center.
5 Q. And did you — when you discussed the matter
6 with — when you did your declaration and you went over the
7 drafts of it, did anybody ask you if they were going to
8 raze the structure or not?
9 A. Did anyone ask me?
10 Q. Yeah.
11 A. Not that I can recall.
12 Q. And you would have told the truth if somebody
13 asked you; right?
14 A. Yes. You know, again, this doesn't mean anything
15 would be razed. These are purely illustrative. This table
16 could be shifted. Everything could stay in the context of
17 the specific plan and nothing be demolished. I think
18 that's been — you know, I think you misunderstand the
19 nature of the specific plan. Howard can give you a better
20 illustration of that, but my understanding has always been
21 that these are purely illustrative. It doesn't mean any
22 tenant is staying or any tenant is going, but at least as
23 far as Ezralow is looking at, given what I understand to be
24 their rights, that at that point in time they indicated
25 they were having discussions with Burlington based on —
291
1 well, earlier discussions with Burlington, were talking
2 about moving them Into a new building.
3 Q. When did the Economic Development Department
4 receive SP-12, which is Exhibit 138?
5 A. I can't tell you.
6 Q. This stamp is from the Department of Planning.
7 Do you have your own stamp in the Economic Development
8 Department?
9 A. Yes, we do, but we would have received the
10 specific plan generally from the Planning Department. They
i 1 could circulate it to us, as well as other departments,
12 with the developer use memo slips
13 Q. Except for the metro that you wrote, I think,
14 around April 13, 2000, did you ever take a look at SP-12 or
15 SP-13 and ask that language be included or excluded?
16 A. I don't believe so, beyond the written comments
17 we gave the Planning Department.
18 Q. Okay. And those written comments, that was that
19 one exhibit where your name was circled. It's around
20 April 13th, 2000?
21 A. It's a specific written response from the
22 Planning Department that had four or five points that we
23 suggested be incorporated in the specific plan. We
24 reviewed that to my earlier day of deposition.
25 Q. And there were no other written comments to the
292
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specific plans other than that one document?
A. Not that I can recall,
Q. That was Exhibit 12; am I right? Take a look at
the last page.
A. Yes, that was Exhibit 12. Are we calling them
exhibits?
MR. TEPPER: Yeah, we are.
MR. TUCHMAN: Thank you.
BY MR. TUCHMAN:
Q. When you received Exhibit 23 from Mr. Hughes, did
you pick up the phone and call him?
A. Not that I recall.
Q. Did you ever have any conversation with Mr. --
with Mr. Hughes relative to the language in paragraph 6,
iii?
A. 6, iii? Not that I can recall.
Q. Okay. Did you draft that language for hire?
A. No, not that I can recall
Q. Did you -- did you have a conversation with
Mr. Hughes where anyone from Ezralow had stated that their
response to your request for development proposal better
have some language in there about Burlington?
A. Not that I recall, no, I don't believe.
Q. Are you aware if Mr. Duran had this conversation?
A. Not to my knowledge.
293
Q. Okay. Are you aware Mr. Silver had a discussion
regarding this language -at 6, iii?
A. No, I don't believe he did. I'm pretty certain
he wouldn't have. He doesn't tend to get involved to this
level with any projects.
Q. Not a detailed guy?
A. Well, no, in the nature of our government, you
know, the various departments are responsible, and he gets
involved when he needs to be.
Q. What was Melanie Fallon's day -today involvement
with the redevelopment when she was with the City?
A. Probably not — you know, maybe slightly more
than Ray, but not really. For example, she really
wasn't — when she was with the City, she really wasn't
involved with this effort, as far as the solicitation of
owner proposals, and this would have come through my
department. She did as — was one of the people that
read — for example, when we submitted requests for the
Redevelopment Agency action, she reviewed and initialed
that on a cover sheet before Ray did because Ray then
usually didn't actually read the staff report as long as
Melanie had signed it. I forget the exact time frame of
her transition, whether she had already left at this point
or not.
Q. How often does Ray Silver come out to your
294
1 5th floor offices?
2 A. To my offce? Usually I go to his office. Maybe
3 twice a month.
4 Q. How often do you go to his office?
5 A. It depends. You know, if it's a scheduled
6 meeting — just use this week as an example, we had
7 scheduled — well, we had a lot more meetings because he
8 was getting ready to go on vacation. I'm the acting City
9 Administrator. He was bringing me into things so I could
10 cover him while he was overseas. I probably went up to his
11 office, oh, maybe in five days I was up there for meetings
12 on the 5th floor, not necessarily with meetings he was
13 involved in, maybe four meetings, five meetings.
14 Q. And how many times have you been to his office
15 since January?
16 A. To his office?
17 Q. Yeah.
18 A. Ob, since January, it's probably on an average.
19 You know, it could be up to a dozen times in a week. It
20 can be a slow week. You know, it's not necessarily once a
21 day, but some days it can be two or threes times, so
22 probably hundreds of times.
23 Q. Since November 1999, how many times have you
24 discussed the redevelopment of the Huntington Center with
25 Mr. Silver? _
1 A. They discussed — you know, to the extent it was,
2 you know, a brief status update or something, probably,
3 specifically Huntington Center, maybe no more than two
4 dozen times.
5 Q. And how many times with Melanie Fallon?
6 A. Melanie and I had weekly status meetings. It was
7 one of the projects I always covered. You know, if you
8 assume it was one a week, maybe twice a week up until she
9 left, you know, maybe 30 times.
10 Q. As you sit here today, you're the acting City
11 Administrator?
12 A. Yes.
13 Q. And how is that determined?
14 A. Ray makes that appointment.
15 Q. And for how long will you be the acting City
16 Administrator?
17 A. Till the 14th of August.
18 Q. Please hand me that exhibit back.
19 A. Sure.
20 Q. Thank you. I want you to take a look at
21 Exhibit 24. It was previously marked --
22 MR. TEPPER: How much more do you have in terms
23 of questioning, Counsel?
24 MR. TUCHMAN: A couple more hours, I'd say, maybe
25 three.
296
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MR. TEPPER: The other day when we were
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concluding at 12:30, you said you had two hours total. Are
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we going till the end — till 9:00 o'clock tonight?
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THE WITNESS: No, we're not going till
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9:00 o'clock tonight.
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MR. TEPPER: I just want to know what he has in
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mind.
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THE WITNESS: III be happy to come back.
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MR. TEPPER: Okay. However, the next time we
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come in here, if you have rough transcripts, you're either
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going to share them or you're not going to question.
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MR. TUCHMAN: Okay, Mr. Tepper.
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BY MR. TUCHMAN:
14
15
Q. Now, do you recognize Exhibit 24?
15
16
A. Yes.
16
17
Q. Okay. Did you receive Exhibit 24, which is
17
18
Tuchman & Associates' letter dated April 24, 2000?
18
19
A. It came into the department, yea
19
20
Q. Okay. It says, "This is a request for all
20
21
correspondence, plans, and any other documents received
21
22
from Ezralow, Huntington Center Associates, and Macerich."
22
23
Do you see that?
23
24
A. Macerich, yea
24
25
Q. Okay. Did you ever -- was there any reason that
25
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1
you did not provide plans in response to this letter?
1
2
A. Well, I understand we did. You worked
2
3
extensively with Gus Duran in relationship to this, and
3
4
then we also got separate requests for documentation from a
4
5
litigation perspective, so I believe we have responded and
5
6
given you everything, including what we've given you on the
6
7
privileged log.
7
8
Q. After you got Exhibit 24, did you discuss it with
8
9
anybody?
9
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A. Gus. He was the one I charged to provide the
10
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response.
11
12
Q. And did you tell him that he should withhold
12
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documents?
13
14
A. No, not that I can recall.
14
15
Q. Okay. And did you — do you -know if he withheld
15
16
documents?
16
17
A. Not to the best of my knowledge, that he had
17
18
access to The only thing I bad was the closed session
18
19
documents, and those were the ones I ultimately included on
19
20
the privileged log. I don't really keep separate flies
20
21
from what Gus has other than the closed session riles.
21
22
Q. The closed session file folder you keep or Gus
22
23
keeps?
23
24_
A. I keep.
24
25
Q. Now, this -- did you have an estimate as of
25
298
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
April 4, 2000, how long it would take to respond to
Exhibit 24?
A. No. I relled on Gus to look at the amount of
documents, and how long it would take to provide a
response.
Q. And do you know how many pages of documents were
provided about a month and a half later?
A. No.
Q. Did anybody tell you not to cooperate with this
request?
A. No.
Q. Do you feel you cooperated with the request
delineated in Exhibit 24?
A. Yes, like we do in any public records request.
It's not unusual to take a considerable period of time
because we have other things we work on, so we don't drop
everything to do it, but —
Q. Okay. Take a look at Exhibit 25 and please tell
me if that's your signature. It's a letter dated April 10,
2000, to Tuchman & Associates signed by David Biggs.
A. Yea
Q. Okay. That's your signature?
A. Yea
Q. And you sent this out on or about April loth,
2000?
299
A. Yea
Q. And did you prepare this letter?
A. No, Gus did.
Q. Okay. And what prompted you to send this letter
back?
A. It's normally polite to respond to a letter you
receive in a timely manner.
Q. Okay. And what was it that you didn't understand
about the previous letter?
A. Well, in all public requests, you're supposed to
be more specific than what you were. You're actually
supposed to identify specific documents like under the
Public Records Act that requests not just generic
documents.
Q. Who told you that?
A. Who told me?
Q. Yeah.
A. Our City Attorney and various League of Cities
meetings and various trainings I've been to on the Public
Records Act.
Q. Was it your testimony that you took Exhibit 24 to
Gail Hutton?
A. No, not specifically.
Q. You didn'ttake 24 to any attorney?
A. This is how we generally respond to these general
M
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
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requests for information under a Public Records Act
request, so you don't need to feel singled out.
Q. Okay. Take a look at Exhibit 26, Tuchman &
Associates' letter dated April 12, 2000. And did you
receive Exhibit 26?
A. I believe we did.
Q. Okay. And you directed Mr. Duran to respond to
Exhibit 26?
A. Yes.
Q. And did you direct him to withhold any documents?
A. Not that I can recall.
Q. Did you direct Mr. Duran to respond to Exhibit 26
fully and completely?
A. Yes, to the best of his ability.
Q. Did you ask Mr. Duran to direct all departments
which would have all documents responsive to this,
including Planning?
A. No, actually, we would only respond based on the
things we had in our possession.
Q. Okay. As of April 12, 2000, did you have a copy
of any of the specific plans?
A. If we would have, it would have been in Gus'
Mes. I don't tend to keep those myself I tend to throw
away iterations as I go through them. I don't keep them
because they have them in Planning.
301
MR. TUCHMAN: Read the question back, please.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Would you read back my prior
answer?
(Whereupon the previous answer was read
back by the court reporter as requested.)
BY MR. TUCHMAN:
Q. That's not responsive. Did you have copies of
plans, Mr. Biggs, as of April 12?
A. That's my response.
MR. TEPPER: That is responsive. Move on.
THE WITNESS: If you don't understand it,
then, you know --
MR. TEPPER. Move on.
BY MR. TUCHMAN: Q. Are you aware if there were any in Gus' files or
not?
A. I don't know.
Q. Okay. You didn't tell hire not to provide them?
A. No.
Q. Okay. Take a look at Exhibit 27 from Gus Duran
to Tuchman & Associates. "We have initiated the process of
researching the Redevelopment Agency's and the City's
files."
302
1
Was he authorized to send this letter out?
2
A.
When you say "authorized" —
3
Q.
Yeah.
4
A.
— what do you mean?
5
Q.
He could sign this letter?
6
A.
Certainly, be can send all kinds of
7
correspondence out
8
Q.
And when he was speaking — when he wrote this
9
letter on behalf of the City and the Agency in searching
10
the files,
he was doing it on your behalf, correct?
11
A.
I assigned him to respond to your letter, yes.
12
Q.
Take a look at Exhibit 28. Do you recognize
13
Exhibit 28?
14
A.
Yes.
15
Q.
Okay. Did you review 28 before it was sent out?
16
A.
I don't recall.
17
Q.
Did you have Mr. Kane's office take a look at
18
the —
at Exhibit 28 before it went out?
19
A.
I don't know.
20
Q.
Who prepared the documents that were supposed to
21
be sent out?
22
A.
Who prepared which documents?
23
Q.
Documents that were supposed to be sent out in
24
conjunction with Exhibit 28.
25
A.
I believe Gus. He was the one who authored the
303
1 letter and had the task to compile the documents.
2 Q. Did he do it alone?
3 A. I don't know.
4 Q. If you note that there's qualifications or
5 certain descriptions of each of these categories that talk
6 about public records. lt's repeated "public records."
7 Do you see that in each of the categories?
8 A. I see it to some of the categories.
9 Q. Do you know who selected that terminology to
10 respond to these categories?
11 A. No, not otlband.
12 Q. Okay. Did you instruct Mr. Duran to let
13 Tuchman & Associates know if there were documents that were
14 not provided that were responsive?
15 A. Could you repeat the question?
16 MR. TUCHMAN: Please read the question back.
17 (Whereupon the previous question was read
18 back by the court reporter as requested.)
19 THE WITNESS: Not specifically, that I can
20 recall.
21 BY MR. TUCHMAN:
22 Q. Okay. You're aware that there were many
23 documents that were not provided?
24 A. The only things that were not provided were the
25 dosed session records, and we talked about that earlier
304
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today and prior to that, yea
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Q. So your testimony is the only documents that were
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not provided in response to the request for documents from
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the City were just closed session documents?
4
5
A. That was our intent, yea That's my
5
6
understanding of what we provided because public closed
6
7
session documents are not considered public records, and
7
8
your request that you submitted is a public records
8
9
request.
9
10
Q. Okay. I'm going to ask you to take a look at
10
11
Exhibit 29 and ask you if you saw Exhibit 29 before.
11
12
MR. TEPPER: What's the date?
12
13
MR. TUCHMAN: May 12, 2000.
13
14
THE WITNESS: I don't recall specifically seeing
14
15
it. I would have -- if it had come to me -- no, it went to
15
16
Gus, so I wouldn't necessarily have seen it.
16
17
BY MR. TUCHMAN:
17
18
Q. Okay. At the end of the first paragraph, it
18
19
says, "Your responsive letter identifies documents that are
19
20
of public record. If there are documents that are not of
20
21
public record responsive to our requests, please advise
21
22
us."
22
23
Did you instruct anybody to respond to that
23
24
sentence?
24
25
A. No. Again, I don't recall seeing this or being
25
305
1
asked about it.
1
2
Q. Take a look back at -- this is Exhibit 27. Take
2
3
a look at the last page. Do you know why this was CCed to
3
4
Murray Katie?
4
5
A. Yes, we always copy. You know, we get a letter
5
6
from an attorney, Mr. Tuchman, we copy our attorneys on our
6
7
response.
7
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Q. And that's true with all letters you get from
8
9
auomeys?
9
t0
A. To the best my knowledge, yea
10
11
Q. And that's a written policy of the City?
11
12
A. No, just an informal policy.
12
13
Q. Okay. And why was it CCed to Scott Field?
13
14
A. He's the Deputy City Attorney that's responsible
14
15
for this project and supervises Mr. Kane. Mr. Kane is a
15
16
contract attorney.
16
17
Q. What does that mean, "this project"?
17
18
A. "This project"? •-
18
19
Q. Yea
19
20
A. Means anything in relationship to Huntington
20
21
Center.
21
22
Q. Okay. So when was Mr. Kane hired in connection
22
23
with Huntington Center?
23
24-
A. Mr. Kane wasn't hired in connection with
24
25
Huntington Center. I think he was retained by the City in
25
306
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1995 or '% to be the Agency's special counsel. He works
on a variety of special, projects related to redevelopment.
Q. So when was he first assigned to the Huntington
Center project?
A. Mr. Kane works really on all redevelopment
projects as special counsel.
Q. Okay. Do you know when his first activity was on
this project?
A. Well, back involving Macerich, so he's been
involved really to the extent that we've been working with
any developers on any potential redevelopment of the
center.
Q. And also when you say "this project" with
Scott Field, does that mean the Burlington issue, the
Huntington Center issue, or redevelopment issues?
A. Anything that Murray works on, Mr. Field
supervises Mr. Kane's firm for the City Attorney's office.
Q. Is there anything that Mr. D'Allesandro works on
with respect to this?
A. Some things. Sometimes Scott will assign other
attorneys to work on certain items.
Q. Is Scott Field second in command to Gail?
A. He's one of two Assistant City Attorneys.
Q. Who is the other assistant?
A. Paul D'Allesandra
307
Q. And then how many others are there?
A. Deputy City Attorneys? I don't know the total,
10. 10,1 guess. Maybe — well, not that many, probably
10, including Gail and two assistants.
Q. So Paul D'Allesandro is the same level as
Scott Field?
A. Paul D'Allesandro is an Assistant City Attorney.
Scott is the other Assistant City Attorney, and, you know,
depending on who is in the office and what the topic is,
you know, there's not a demarcation between who does what,
so —
MR. TUCHMAN: D'Allesandm is D-, apostrophe,
-A-1-I-e-s-a-a-d-r-o.
BY MR. TUCHMAN:
Q. Take a look at Exhibit 30, and please tell me if
you recognize Exhibit 30.
A. No, not specifically.
Q. Okay. Do you recognize that these were the sum
and total of documents that were provided on May 16, 2000,
to Tuchman & Associates?
MR. TEPPER: I would, again, object on the
misrepresentation. Those were the documents that were
requested. We played this game two days in a row.
MR. TUCHMAN: I think there's a game being
played, but not by me.
308 -1
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BURLINGTON V. HUNTINGTON
I
MR. TEPPER: Whatever. Don't answer it. If
1
2
there's a question that's competent, then you can answer
2
3
it.
3
4
BY MR. TUCHMAN:
4
5
Q. You can answer the question.
5
6
MR. TEPPER: There is no question that's
6
7
competent on the floor.
7
8
MR. TUCHMAN: Repeat the question.
8
9
(Whereupon the previous question was read
9
10
back by the court reporter as requested.)
t0
I 1
MR. TEPPER: Objection. Argumentative. Don't
11
12
answer.
12
13
BY MR. TUCHMAN:
13
14
Q. Are these the documents that were provided on
14
15
. May 16, 2000?
15
16
A. May 16th, 20009
16
17
Q. Yeah.
17
18
A. I don't know.
18
19
Q. Okay. Do you know if other documents other than
19
20
Exhibit 30 were provided to Tuchman & Associates?
20
21
A. I don't know. I didn't prepare the response.
21
22
Q. Okay. Do you know why the enclosures were not
22
23
provided to Mr. Hughes' letter dated May 2, 2000?
23
24
A. No, I do not know.
24
25
Q. You didn't instruct anybody to exclude any
25
I
documents, did you?
1
2
A. No.
2
3
Q. You didn't tell Mr. Duran to not include the
3
4
enclosures?
4
5
A. No.
5
6
Q. The memo on the second to the last page is your
6
7
memo with respect to the comments on the specific plan?
7
8
A. Yes.
8
9
Q. Okay. Now, the Design Review Board does not
9
10
report to you, that reports to Planning; is that correct?
10
11
A. No, it reports to the City Council. It's staffed
11
12
by the Planning Department.
12
13
Q. I see. Take a look at Exhibit 31, which was
13
14
previously marked, and that is a memo dated May 26th, 2000,
14
15
and it's the Draft Crossings at Huntington Beach Specific
15
16
Plan --
16
17
Did you receive Exhibit 31 on or about May 26th,
17
18
2000?
18
19
A. I don't specifically recall.
19
20
Q. Do you know why the specific plan was distributed
20
21
to you?
21
22
A. Well, I think it was most of the time. It
22
23
usually comes to me in the department transmittals from the
23
24
Planning Department
24
25
Q. Did you submit corrections to Jane James in
25
310
response to this memo?
A. I don't recall. I don'i believe so, but I don't
recall specifically.
Q. Did you instruct anyone from the Economic
Development Department to provide comments or corrections?
A. No. Gas may have done so in the normal course
and scope of his duties, but I don't recall if anything
came up.
Q. Why -- if this is a specific plan, why — if this
is a plan that could be, as you call them -- proposals
for -- withdraw the question.
Why, if this is a specific plan with concepts
that could be developed of the property, would you be
interested in it as the Director of the Economic
Development Department?
A. Well, we review — it applies to a commercial
area We review all developments proposed for commercial
sites to the Economic Development Department, including
properties not In redevelopment areas.
Q. Are there any other reasons?
A. Are there any other reasons that we would have an
interest [a —
Q. In reviewing the specific plans and making
corrections to them.
A. Well, I don't know if we did make corrections,
311
but, you know, we generally view ourself as advocates for
the business community, so we want to try and make sure
that documents like this are business friendly. We were
involved in the review of the specific plan for the
McDonald's Center Business Park, which accommodates large
industrial users, so it's just generally part of our
purview, is to review things relating to sites where
commercial development would occur.
Q. As of May 26th, 2000, you were evaluating the
proposals that were submitted by potential developers of
the property; is that right?
A. You're talking about the owner participation
proposals?
Q. Correct
A. I'd have to double check the exact time frame.
It was probably about that time frame. When did it go
to counsel? 19th of June?
Q. Correct.
A. It was probably about that time Name, yes.
Q. And did submitting the specific plan to you for
corrections by the associate planner have anything to
do with your process of selecting the developer for
the upcoming meeting?
A. No, because this easily could have occurred
10 years prior or 10 years after, so —
312
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1 Q. Did you discuss the specific plan with Ezralow,
1
2 the developer'!
2
3 A. Not that I can recap at this point, no.
3
4 Q. As of May 261h, 2000, you did not discuss the
4
5 specific plan with Ezralow?
5
6 A. Probably at that point in time, the only issue
6
7 that we were down to was the issue of the drive -through. I
7
8 think they wanted us to advocate for two drive-throughs on
8
9 the site and we told them we wouldn't.
9
10 Q. And the specific plan itself discusses whether
10
I there's a drive -through or not?
11
12 A. As to specific use, yes.
12
13 Q. Are there other issues in the specific plan that
13
14 have been discussed by Ezralow by that date?
14
15 A. I'm sure there were, throughout the specific plan
15
16 process
16
17 Q. Because that was part of the participation of
17
18 selecting the developer and working towards —
18
19 A. No. No, not for selecting the developer, for
19
20 just the consideration of the specific plan.
20
21 Q. Okay. Why would you be talking to Ezralow as the
21
22 Economic Development Department regarding the specific
22
23 plan?
23
24 A. Because we're one of the reviewing departments,
24
25 and also we are the department that the business community
25
313
1 comes to if they're running into -- that is more business
1
2 friendly. So quite often if a developer feels like they're
2
3 not getting a receptive reception in the Planning
3
4 Department, that — there's a natural tension that exists
4
5 between Economic Development and Planning. So we sometimes
5
6 work with the Planning Department and have them understand
6
7 the business perspective by the business community, not
7
8 just in this instance, but in most instances. But it's not
8
9 unusual if someone feels that they're not getting the
9
10 business perspective incorporated into a planning review,
10
I 1 whether it be a couditional use permit or a general plan
11
12 amendment. They'll quite often ask us to work with them
12
13 and the Planning Department to help them understand the
13
14 business perspective and the Economic Development
14
15 perspective as part of their review. --
15
16 Q. By May 26th, 2000, had you determined which
16
17 proposals you were going to select in the Economic
17
18 Development Department?
18
19 A. I don't recall. It wouldn't have been material
19
20 to our responding to this memo.
20
Q. I understand that.. It's a different question of
21
22 whether it's material or not. The question is --
22
23 MR. TEPPER: He answered it. He does not recall.
23
24 MR. TUCHMAN: Take it easy, Mr. Tepper.
24
25 MR. TEPPER: No, I'm not losing my cool. You re
25
314
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
the one that's been screwing around here for three and a
half hours today and three and a half hours the other day.
THE WITNESS: I91 repeat that I don't recall.
BY MR. TUCHMAN:
Q. Okay. Now, let's take a look at Exhibit 32. Do
you recognize Exhibit 32? It's a letter dated June 2,
2000.
A. Yes.
Q. Okay. And you authored -- you authored
Exhibit 32 on or about June 2, 2000, and sent this to
Bryan Ezralow?
A. No, I signed it. It was prepared by Gus.
Q. Okay. What was the purpose of sending this
letter out?
A. Well, one went to Burlington, one went to Ward's,
and one went to Ezralow to tell them that they were going
to be reviewing and asking the Agency Board to make a
determination as to the owner participation responses
Q. Had the decision been made by then?
A. Had a determination been made by then? Let's
see. Working backwards, a request for Council action, it
probably was pretty close to being finalized by then.
Q. What factors by June 2, 2000, went into your
determination that Ezralow was going to be selected?
A. It's outlined in the staff report that you've
315
read.
Q. The staff report —
A. For the Jrme 19th Redevelopment Agency meeting.
Q. Did we mark that?
A. Yeah, we discussed it extensively.
Q. Did we mark that before?
A. You gave it to me — you questioned me on it
today, so -- it's attached to something else.
MR. TEPPER: 23.
MR. TUCHMAN: Well, I'm just going to attach
this.
THE WITNESS: No, I'd like to know which one it
was, if I referred to another exhibit.
MR. TUCHMAN: Good. We'll find it.
THE WITNESS: I could use a restroom break.
MR. TUCHMAN: Okay. Use the restroom.
(A brief recess was taken.)
MR. TUCHMAN: Let's go on the record here. What
exhibit are we on? 139?
MR. WATSON: Yeah.
BY MR. TUCHMAN:
Q. Exhibit 139 is the June 19, 2000, request for
Redevelopment Agency action. It's prepared by David Biggs,
submitted by Ray Silver.
A. Yeah. Just for the record, this is something you
316
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
asked we about You went sentence by sentence in this
mid -paragraph on the second page today.
(Pbdntffs Exhibit 139 was marked
for identification by the court
reporter and is attached hereto.)
BY MIL TUCHMAN:
Q. Okay.
A. You asked me how do we determine it would be a —
9 Q. That may be the case.
10 A. And this is where you said we'd be back with
11 adequate assurances to the agency. That's the document
12 you're referring to.
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Q. You're correct.
A. Excessively — I didn't mean that, exhaustively.
Q. Is there any reference in your approval, because
you had mentioned the basis for the approval comes from the
RAA in 139, which talks about what they plan to do, the
specific plan?
A. I'm sorry. Could you repeat the —
Q. Yeah. With respect to the developer, was it part
of your decision to select them as the developer based on
the specific plan that was submitted?
A. Based on the specific plan? Only to the extent
the specific plan illustrated a high -quality center as
being a possibility compared to the other two proposals we
317
received.
Q. Okay. And this developer that you recommended
submitted that specific plan?
A. Yes.
Q. Okay.
A. To illustrate their concept in response to the
request for owner proposals
Q. And the response to the request for owner
participation proposals was consistent with the specific
plan that was submitted by them in which you liked as the
Economic Development Department?
A. Sorry. Could you read that back?
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: Im sorry. I don't understand the
question. BY MR. TUCHMAN:
Q. That's okay. We're just about done for today.
A. Can you rephrase it?
Q. Yeah.
MR. TUCHMAN: Give him the question'back.
(Whereupon the previous question was read
back by the court reporter as requested.)
THE WITNESS: If I understand your question, it
was immaterial -- there wasn't a requirement for the
318
1 responses to be consistent with the specific plan because
2 there was no specific plan.
3 BY MR. TUCHMAN.-
4 Q. Right.
5 A. So, again, they weren't related. So to the
6 extent the specific plan illustrated the quality of
7 development that Ezralow is proposing, then it was
8 responsive to our request for owner proposals.
9 Q. Okay. Now, when you sent out 32, the proposal
10 that was submitted is this complete package, which is 23;
11 is that correct?
12 A. I believe that it was not necessarily 23. I
13 believe It was — the Ezralow proposal here that's starting
14 with the Clerk's — City Clerk's numbering of F-2-87, I'd
15 have to doable check to see if these pages on top were part
16 of the proposal.
17 Q. Okay. So except for the pages that are on top
18 where you made sure it was the Ezralow entities, and the
19 two corrections, the top two pages of 23, this portion of
20 the 23 is the proposal?
21 A. No, I don't know If this was. This might have
22 been the letter of intenL Itim sorry. I just — you know,
23 Gas could better — basically, Gas is the one who received
24 the proposal. So let me see what's in here. It might be
25 the same. Here's the statement of Interest. Here.'s their
319
1 letter dated May 2nd. It's just you have things on top
2 that weren't in our package that went
3 Q. Okay.
4 A. So that's the May 2nd letter. Aretherearetwo
5 May 2nd letters? It looks like there were two May 2nd
6 letters. May 2nd letter, I to 5, letter of interest,
7 May 2nd letter. Well, there is a version of the May 2nd
8 letter in here. I haven't had a chance to check and see
9 how they differ with what's on top.
10 Q. And the enclosures that were provided with
11 May 2 are part of the proposal that was submitted and which
12 you referred to as Exhibit 32; right?
13 A. Yes. What was included with the counsel is
14 everything we received in response to the proposal.
15 Q. So you got 23 submitted -- except for the top
16 three pages.
17 A. Except for the top three pages, 23 from this
18 thing. It says, "Ezralow proposal, Attachment 3." It has
19 the numbering starting F-2-87 through F-2-268.
20 Q. Very good. That's the proposal that's referred
21 to in 32; is that correct?
22 A. Yes.
23 Q. And that proposal was recommended to be accepted,
24 Exhibit 139?
25 A. Not that proposal. The developer, on the basis
320
39 (Pages 317 to 320)
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1 of what they submitted to demonstrate their developer
2 qualifications, they were selected as the developer with
3 which we would negotiate.
4 Q. Okay. So the answer is -- okay. I got it.
5 A. So there was no approval of a development concept
6 or a plan.
7 Q. But you selected a developer or you recommend the
8 selection of the developer based on the package that was
9 submitted as Exhibit 23?
10 A. Yes.
11 MR. TUCHMAN: Okay. I don't have any -further
12 questions today.
13 How are you on next Friday, the 4th?
14 MR. TEPPER: I'm not, so —
15 THE WITNESS: I'm not going to be available on —
16 MR. TUCHMAN: Let me have my calendar brought up.
17 THE WITNESS: I'm not available. I'm in a
18 meeting all day.
19 (Discussion held off record.)
20 MR. TUCHMAN: On the record. We can't set a date
21 certain. I guess you have a Mulligan trial, and he's the
22 acting City Administrator and the 4th is no good; is that
23 correct?
24 MR. TEPPER: Correct.
25 THE WITNESS: Yeah. No.
321
1 MR. TUCHMAN: Let's talk a week from today about
2 available dates.
3 MR. TEPPER: I won't even be in town a week from
4 today.
5 MR. TUCHMAN: The Mulligan trial is in town,
6 isn't it?
7 MR. TEPPER: No, it doesn't start until the week
8 after.
9 MR. TUCHMAN: Are we a go on Mr. Zelefsky on the
10 11th or we're not?
11 MR. TEPPER: No, we're not.
12 MR. TUCEIMAN: Okay. All right. Well also have
13 to get a date for Mr. Zelefsky and, Counsel, Mr. Tepper and
14 1, will talk.
15 I propose that the reporter be relieved of her
16 duties under the Code with respect to maintaining the
17 original and obtaining signature; that the transcript be
18 sent to Mr. Tepper with a.cover letter CCed to myself and
19 Mr. Watson's office. That's the same as Mr. Shipow; that
20 Mr. Biggs will have 30 days after Mr. Tepper's receipt of
21 the transcript to review it, sign it under penalty of
22 perjury; that Mr. Tepper will advise all counsel of any
23 changes to the transcript and the fact that it's been
24- signed.
25 In the event the transcript is not signed and
322
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
1 corrected after 30 days, then an unsigned, uncorrected,
2 certified copy will be usable for all appropriate purposes
3 in lieu of the original. The original will be given to me
4 by Mr. Tepper, and I will make it available on all
5 reasonable requests or at any proceedings in this matter.
6 And I think that's it.
7 MR. TEPPER: Except if there's no changes, then
8 copies could be used as originals.
9 MR. TUCHMAN: That's fine.
10 Is that acceptable Mr. Biggs?
11 THE WITNESS: What was that?
12 MR. TEPPER: You don't —
13 MR. TUCHMAN: Third party witnesses, the witness
14 does have to agree to it.
15 MR. TEPPER: I have a question. How much more do
16 you have of this witness?
17 MR. TUCHMAN: I have these documents here. So
18 it's two to three hours is what it is.
19 MR. TEPPER: We don't have unlimited time for
20 him, okay. And I'll go get a Court Order if we get into
21 the situation where we're backing through old transcripts.
22 MR. TUCHMAN: That's fine, Mr. Tepper. I just
23 want to make sure the witness stipulates so we don't have
24 to go down to the reporter's office.
25 Is that okay, Mr. Biggs?
323
1 MR. TEPPER: It's fine.
2 THE WITNESS: Okay. It's fine.
3 MR TUCHMAN: That's fine, Mr. Watson?
4 MR. WATSON: Yes, that's fine.
5 MR. TUCHMAN: Thank you, Mr. Tepper.
6
7 (Whereupon the deposition adjourned at 5:52 p.m.)
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BURLINGTON V. HUNTINGTON
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BURLINGTON V. HUNTINGTON
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193:8,11,18 214:25
239:17 240:17
241:1,3 253:12'
277:23 287:3
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burlington 165:5
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178:1 191:2
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201:2,21,24 202:1
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227:10,25 228:16
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232:18,23 233:6
239:13,15,17,21
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250:13,19 251:2,7
251:19 252:1,10,18
252:22 254:3,6
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261:3 266:12,13
268:8,10,12,19,22
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273:25 274:2,3,7
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233:3 241:4
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192:15 196:16,18
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Circuit 193:24
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cities 249:1,5 300:18
City's 180:1 192:5
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client 217:4 273:16
climate 248:10,18
close 315:22
closed 242:24 298:18
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 327
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.00-
BURLINGTON V. HUNTINGTON
Delaware 165:9,10
165:11 166:9,10,11
deleted 224:7 286:22
delineated 299:13
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7ILI0 & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 329
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entitled 168:10
entitlement 194:4,5
194:6
entitlements-192:12
194:10,16,19 195:7
195:13,14
entity 28713
environment 214:16
environmental
209:14,18 210:11
210:14 211:20
Equalization 247:11
equals 276:13,15
equation 250:14
ESQ 167:3,9,14
Essentially 191:18
establishing 236:17
estate 228:6,8 274:6
estimate 206:8
298:25
evaluate 268:23
evaluated 284:25
evaluating 312:9
even 179:23 188:16
220:5 223:2,9
229:3 283:5 322:3
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eventually 180:20
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237:4
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219:4 229:14
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270:22 279:24
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297:25
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everything 211:2
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250:6 261:17,21
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299:17 320:14
evicted 280:2
evidence179:16
266:1
exact 196:1294:22
312:15
exactly 215:9,20
217:2 240:21
EXAMINATION
168:2 169:11
examined 169:8
example 178:2 180:1
182:6 183:19
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194:23 210:7
217:18 230:24
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284:16,19 294:13
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except 211:4,10
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319:17 320:15,17
323:7
Excessively 317:14
exchange 228:10
exchanged 273:22
exclude 205:3 309:25
excluded 292:15
excuse179:15
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
221:25 222:17
287:23
Executive 216:25
218:10
exhaustive 279:20
exhaustively 317:14
exhibits 168:8
207:24 225:14
293:6
exist 204:22
existence 186:17
241:5
existing 191:21
196:21 214:5,8,19
230:5 241:1,18
246:25 255:10,11
258:4 265:24
283:3 286:3 287:9
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exists 230:6 314:4
expansion 272:8
expect 265:13
expectation 259:18
expedited 192:22
expediting 238:12
experience 206:5
227:9,10 249:14,21
249:24 251:3
255:5 258:24
experiences 169:24
170:4
expert 257:4,8
experts 258:5
express 252:4
expressed 253:5
258:5,7
extensively 175:6
298:3 316:5
extent 237:20 260:7
283:22 296:1
307:10 317:23
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externally 178:25
extraordinary
256:25
extras 238:19
eyesore 249:12
Ezralow's 231:9
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188:5 207:3
EzralowBurlington
219:2
face-to-face 270:9
facilitator 182:10
facilities 272:5,18,23
facing 242:1
fact 172:25 179:15
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factory 165:5 166:5
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Factory's 261:4
fail 261:25
fair 207:15
fairly 205:17
faith 262:12,15
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Fallon 296:5
Fallon's 294:10
false 227:8
familiar 244:1245:3
248:23 259:13
288:14 -
familiarity 196:19
far 184:10188:2
205:17 236:10
249:19 252:17
266:5,7 278:20
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fashion 191:12
feel 197:25 203:3
221:6 274:11,14,15
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feels 314:2,9
feet 193:3,4 253:19
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felt 236:6
few 169:18 170:18
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Field 306:13 307:14
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Fifth 167:15
Figueroa 167:10
file 183:21 184:13
260:20 298:22
filed 176:22 184:24
209:4 220:11
files 204:21 298:20
298:21 301:23
302:17,25 303:10
fill 180:13,16
final 208:3
finalized 315:22
finally 194:23,24
finance 256:21 272:6
financial 205:25
206:1 256:24
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
266:1
financially 235:5
256:18
financials 256:8
financing 264:4
272:7,10 273:12
find 183:15 316:14
fine 200:9 241:2
323:9,22 324:1,2,3
324:4
finish 221:25 273:14
finished 261:15
firm 169:25 257:13
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first 169:7 171:4,15
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firsthand 227:9,10
first-rate 264:5
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fits 251:20,23
five 218:6 237:14
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203:8,11241:25
floor 166:25 167:4
167:15 295:1,12
309:7
focus 268:20
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follows 169:9
follow-up 170:18
foot 287:2
footage 237:23 282:7
footer 171:25
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form 191:12 253:3
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frequent 218:15
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full 261:22
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further 169:11 183:2
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288:19
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handle 199:6
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handout 241:16
handout& 198:12
hands 236:10
hang 283:8
happen 195:17 214:4
240:13 249:19
happening 280:10
happens 240:21
happy 297:8
hard 208:19 220:5
228:9,14
)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 331
haunt 271:13
having 169:7 200:25
214:18 228:5
241:20 259:19
267:25 291:25
HBB1z 203:7
heads 246:5
Health 244:18 245:2
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301:10 302:20
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hired 288:2,3,4,5
289:2,18 306:22,24
history 248:25
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Hold 239:23
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hotel 206:17,19,22
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293:20 309:23
hundreds 189:11
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illustrate 272:17
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illustrated 283:12
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illustrating 282:21
illustration 198:10
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240:25 253:6
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immaterial 318:25
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importance 217:3
important 258:9
improvements 191:3
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inception 187:21
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indirectly 223:3
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influence 250:4,6
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informal 306:12
information 168:16
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initial 184:24 186:23
187:5,9 222:4
initialed 246:4
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initials 171:24 172:6
243:13 275:22
initiate 184:8
initiated 180:24
181:3 189:10
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183:5 228:17
229:3
inline 196:24
input 234:12 237:6
282:8
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235:24 236:11
248:16 262:14
276:7,17 314:8
instances 174:11
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instead 208:25
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instruct 202:18
205:2 304:12
305:23 309:25
311:4
instructed 168:20
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instruction 197:5
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199:2 229:19
intact 197:15 242:13
intend 265:21
intends 251:13
intent 233:5 260:2
260:10,18,23
265:24 305:5
319:22
interest 188:20,23
207:3,8 232:2
253:5 276:7
311:22 319:25
320:6
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
interested 181:6
234:16,21 278:3
311:14
interfere 230:16
interfering 230:9
interior 191:3
internally 178:25
interrelated 236:19
interviewed 170:4
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intrinsically 214:10
investigation 227:7
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involves 276:3
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issue 256:17 280:4
307:14,15 313:6,7
issued 181:15 192:18
214:2
issues 186:9 235:23
236:7 248:12
254:19 255:11
258:9 264:21
307:15 313:13
italicized 186:6
item 262:24
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iteration 286:10
287:1 290:13
iterations 187:12
290:22 301:24
I's 178:18 216:17
J 167:14
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186:3 200:5 208:8
273:4 310:25
Jane 172:4,5 175:8
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200:5,5 208:8
223:2,9 273:4
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Jane's 207:22
January 295:15,18
JC 253:2 255:21
Jennifer 172:4
Jim 196:16 257:9,16
267:3,3 272:19,21
273:1,14 280:10
JM 171:19
job 285:3
joint263:24 276:2
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Page 332
jointly 169:25 197:5
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284:25 285:3
286:19 287:24
295:6 297:6
300:13 305:4
306:12 312:6
313:20 314:8
316:10,25 318:18
31LIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.O0
BURLINGTON V. HUNTINGTON
319:22 320:1
323:22
J.M 171:24'
kane 167:9169:25
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DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.01W-
BURLINGTON V. HUNTINGTON
number 185:25
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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Page 335
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package 319:10
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312:10
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238:5
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precluded 216:20
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
precludes 261:9
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premises 197:14
290:25
preparation 171:14
180:4 188:11
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285:21 300:2
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287:18 303:20,22
315:12 316:23
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248:14, 264:14
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306:18 307:4,8,13
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, .07.28.00
BURLINGTON V. HUNTINGTON
projects 178:23- -
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 337
recollection 171:12
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235:22 303:15
310:9 311:16,17
312:4,7 314:10,15
322:21
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
reviewed 224:9
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.00= 3
BURLINGTON V. HUNTINGTON'
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JILIO St ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 339-
spoke 232:18,22
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tenant 191:1,3
198:23 252:23
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
254:2 258:13,15,25
259:3,10 260:25
266:6 268:21,24
279:10 286:22
291:22,22
tenants 193:19,23
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Page 340
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216:13,17 221:5
222:3,11 223:1
226:3 227:21
228:23 229:9
bd
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
230:112313
232:6,25 233:17
234:10 236:21
238:15 240:12
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265:6 266:4 267:4
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7ILIO 8t ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 341
utmost 217:3
vacation 295:8
value 256:13
variety 197:9 199:13
220:6 227:19
241:10 242:3
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321:17,25 323:11
323:13,16,23 324:2
DAVID C. BIGGS, 07.28.00
BURLINGTON V. HUNTINGTON
witnesses 323:13
words 235:14 268:13
word-for-word
268:18
work 180:20 182:24
184*9 191:7
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227:1 232:13
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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299:19 3083,3,4
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loth 299:24
100 262:16,17
11th 322:10
11560166:21
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12th 208:9
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281:15,19 282:9,24
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19th 212:8 232:15
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265:1,5 312:17--
316:3
1995 307:1
1997 204:19
1998 204:13,19
1999 295:23
2 281:2,4 309:23
315:6,10,23 320:11
2nd 320:1,4,5,5,6,7,7
2:09166:22 169:1
2:30 269:6
20 235:10
20th 289:22 290:10
200,000 249:7
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2000 165:20 166:23
169:1 174:3
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301:4,20 305:13
308:19 309:15,16
309:23 310:14,18
312:9 313:4
314:16 315:7,10,23
316:22
21st 290:10,23
211,488 282:14
213167:5,11,16
22 278:22,23
22nd 200:22,23
23 280:23,24 281:2,8
282:10 293:10
316:9 319:10,12,19
319:20 320:15,17
321:9
238168:10
24 278:23 296:21
297:15,17,18 298:8
299:2,13 300:21,24
25 299:18
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26th 310:14,17 312:9
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28165:20 166:23
169:130312,13,15
303:18,24
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29 305:11911
3171:22 286:1,1
320:18
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308:15,16 309:20
322:20 323:1
30th 166:25 167:4
308168:22
31290:5 310:13,17
317168:12
32 315:5,6,10 319:9
320:12,21
324165:10
33000 245:2
3343 244:3,4
33433 273:15
3435 166:24 167:4
385-8000167:5
4 281:16,25 282:9,12
285:25 286:1,2,14
299:1
4s 282:18
4th 321:13,22
405 206:22,24
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225:23 226:2,11
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186:21217:22
224:22 226:14
295:1,12
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60 231:17,22,24
259:15 263:11
60-day 263:10,18
617-0480167:11
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646,718 282:2
646,719 286:6
7 170:16,17 171:2,8
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DAVID C. BIGGS, 07.28.00-
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BURLINGTON V. HUNTINGTON
Page 343
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hdPJMw-j t0M'-ff" nffV
3090 Bristol Street
Suite 100
Costa Mesa
California 92626
August 21, 2000
JAYNA MORGAN
c/o EDAW
17875 Von Karman Avenue, #400
Irvine, CA 92714
RE: BURLINGTON COAT FACTORY vs. HUNTINGTON CENTER
Dear Ms. Morgan,
Enclosed is the original of your deposition. Please read it, make any
corrections or changes by putting a single line through the words to be
corrected in ink and inserting any changes directly above. PLEASE
INITIAL EACH CHANGE.
After reading and correcting your deposition, please do one of the
following:
Sign your deposition before any Notary Public in
his/her presence.
_XX_ Read and sign your deposition under Penalty of
Perjury. Then send your transcript to Mr. Cohen.
Your immediate attention to this matter will be greatly appreciated. If you
have any questions, you should contact your counsel.
Very truly yours,
lie Bell )ilio 8a Associates
cc: Loren N. Cohen
Alan J. Watson
JB/jd
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ORANGE
3
4
5
6 BURLINGTON COAT FACTORY, )
7 Plaintiff,) )
8 vs. ) CASE NO.00 CCO6309
9 HUNTINGTON CENTER ASSOCIATES )
LLC, et al., )
10 )
Defendants. )
tl )
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DEPOSITION OF:
JAYNA MORGAN
MONDAY, AUGUST 7, 2000
1
1 APPEARANCES OF COUNSEL:
2
3 FOR THE PLAINTIFF:
4 TUCHMAN & ASSOCIATES
BY: LOREN N. COHEN, ESQ.
5 3435 Wilshire Boulevard
30th Floor
6 Los Angeles, California 90010
(213)385-8000
7
FOR THE DEFENDANT:
8
LAW OFFICES OF HOLLAND & KNIGHT
9 BY: ALAN J. WATSON, ESQ.
633 West Fifth Street
10 Twenty -First Floor
Los Angeles, California 90071-2040
11 (213)896-2400
12
13
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15
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17
18
19
20
21-
22
23
224
5
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
INDEX
2
FOR THE COUNTY OF ORANGE
2
3
Examination by: Page
3
4
Mr. Cohen S
4
5
5
6
6
BURLINGTON COAT FACTORY, )
7
8
9
7
Plaintiff, )
EXHIBITS
to
8
vs. ) CASE NO.00 CC06309
Plaintiffs
Description For Identification
I I
141
Notice of Taking Deposition 7
9
HUNTINGTON CENTER ASSOCIATES)
12
LLC, et al., )
142
Letter Dated 9 1s-99 to
10
13
Mr. Dinovitz 34
Defendants. )
14
143
Unsigned Version of the Letter
Dated9-15-99 35
11
)
is
12
144
Specific Plan 12 with a Cover
16
Letter Dated 1-22-99 41
13
17
145
Specific Plan Dated Received
14
March 30, 1999 46
15
—
18
15
146
General Plan Consistency for
19
theCrossingsAl
17
The deposition of JAYNA MORGAN, taken on behalf of
Specific Plan project 51
18
the Plaintiff, before SHELLIE A. CAMARATA, Certified
20
19
Shorthand Reporter No. 10275 for the State of
t47
Documents Regarding the Crossings
20
California, commencingat 10:25 a.m., Monday, August 7,
Y 8
21
at Huntington With a Cover Leiter
Dated 5-26-00 57
21
2000, at 3435 Wilshire Boulevard, 30th Floor, Los
22
22
Angeles, California.
148
Two Pages of Insert Language for
23
the Specific Plan 62
24
149
5 Page Document Dated 5-4
24
Regarding Crossings at
25
25
Huntington Beach 63
2
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4
1 (Pages 1 to 4)
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTING'120N
1
EXHIBITS
1
Exhibit 141, the notice of taking deposition for PMK at
2
Plaintiffs Description For Identification
2
EDAW.
3
150 Memorandum Dated 8-2-00
3
Are you familiar with that notice?
4
From Alia Hokuki 65
4
A yes.
5
151 Documents Listed as Outgoing
5
(Plaintiff's Exhibit 141 was marked
Correspondence 66
6
for identification by the court
6
152 Documents Listed as Incoming
7
reporter and is attached.)
7
Correspondence 69
g
By Mg, COE>EN:
8
153 Meeting Minutes of
9
Q And you were selected as the person most
9
December 2, 1999 86
10
knowledgeable to respond to the questions listed in this
154 Huntington Center Crossings
11
deposition subpoena; is that correct?
10
Dated 1-21-00 101
12
A That's correct.
11
155 Document Entitled No. 9,
13
Q Who selected you?
Crossings at Huntington Project
14
A Don Smith the principal of EDAW.
12
13
Meetings Agenda 105
15
Q Where is EDAW located?
14
16
A They are located in the City of Irvine. Do
15
17
you want me to —
16
18
Q I want the address.
17
18
19
A 17875 Von Karman, V-o-n, K-a-r-m-a-n, Avenue,
19
INFORMATION REQUESTED
20
Suite 400, that's Irvine, 92614.
20
None.
21
Q And the work phone number?
21
22
A It's area code (949) 660410" My extension
22
23
23
is 327.
24
24
Q Have you had your deposition taken before?
25
25
A No.
5
7
1
Monday, August 7, 2000, 10:25 a.m.
1
Q Well, the way it's works is, that the court
2
Los Angeles, California
2
reporter, the oath that she just gave you, is the same
3
-
3
oath that you would take in a court of law. Meaning,
4
JAYNA MORGAN,
4
you have to answer under the penalty of perjury, and
5
was called as a witness by and on behalf of the
5
anything that you say can be used against you.
6
Plaintiff, and having been first duly sworn by the
6
Do you understand that?
7
Certified Shorthand Reporter, was examined and testified
7
A Yes, I do.
8
as follows:
8
Q The court reporter will prepare a transcript.
9
9
It will be my questions and your answers, and it will
10
EXAMINATION
10
read like a play.
11
BY MR. COHEN:
11
Do you understand that?
12
Q Could you state and spell your name for the
12
A I'm familiar with those. I have read through
13
record.
13
many of them.
14
A Sure. It's Jayna Morgan_._It's spelled
14
Q You will have an opportunity to correct your
15
J-a-y-n-a, M-o-r-g-a-a
15
answers.
16
Q And your home address?
16
A Okay.
17
A Home address is 10120 Sunkist Circle in the
17
Q However, we really would like to have your
18
City of Villa Park.
18
best testimony today. If you do make some corrections,
19
Q What park?
19
we will be able to comment on them and make adverse
20
A Villa, V-i-I-I-a, P-a-r-k, California
20
comments on those changes.
21
Q Do you know the zip code?
21
Do you understand that?
22
A 92816.
22
A I do.
23 .
Q And your home number?
23
Q Is there any reason why you can't provide your
24
A (714) 998-5505.
24
best testimony today?
25
Q I would like to mark for identification as
25
A No.
6
8
2 (Pages 5 to 8)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
)AYNA MORGAN, 08,07.00- -
BURLINGTON V. HUNTINGTON
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Q You are employed with EDAW, correct?
A I'm employed as an independent contractor.
What that means is that — I was employed with them
fblltime for seven years. And after having my second
child, I took a part-time position coming back. And
because I lost my benefits, I decided that it wasn't as
cost-effective for me to be part time.
So, they hired me on as an independent
contractor. We refer to them as an IC. And I basically
kept the same projects that I had when I was a full-time
employee.
Q When did you become an IC?
A I became an IC -- my daughter is four. So,
three years ago.
Q And you began your employment with EDAW when?
A My daughter is seven. I was pregnant when I
came there. So, eight years ago. That would have been
1992; late '91/early '92.
Q What is your highest form of education?
A I have a bachelor's degree from UC Irvine.
Q Do you have any credentialing, any licensing?
A No.
Q What was your major?
A Social ecology.
Q What do you do?
A Urban land planning, urban architectural and
eaviroomeotal planning. The company has been around for
52 years.
Q What is urban land planning?
A Urban land planning is kind of like master
planning. Developers often approach EDAW with raw
pieces of land, usually several hundred acres, and ask
them to lay out a planned community. Don Smith the
principal of EDAW is probably best (mown for being the
master planner of Cons De Casa, Santa Margarita.
We are wrrendy the — cnrrendy we are the
land master planners for a community in Orange County
called Iadern itanek. And they do physical planning
where they actually lay out the grading where home sites
should be, lotting studies Whereas I do more policy
16 planning,. _
17 Q I see.
18 A So, there Is a distinction between physical
19 and policy, policy being more paper planning.
20 Q Would that be more for the zoning issues?
21 A Zoning, yes, correct.
22 Q Can you describe your position with EDAW, what
23 you do, your duties?
24 A My duties with EDAW, I oversee/manage CEQA.
25 It would be related projects — CEQA, California
10
1 Environment Quality Act And that consists of initial
2 studies, mitigated negative declarations, environmental
3 impact reports. And then on the policy planning side
4 would be specific plans, projects that involve general
5 plan amendments.
6 And then also permit applications which kind
7 of go along with most projects nowadays. And the permit
8 applications would be both City applications for zone
9 change, site plan reviews. And then with other agencies
10 outside of the City which would be Department of Fish
11 and Game Army, Core of Engineers, those would be more
12 like 404 permits, stream bed alteration agreements,
13 that's a 1603 permit
14 Q Do you assist in getting applications for
15 specific plans and that type of thing?
16 A I do when we am requested to do that. In
17 many cases the applicant's engineer or architect will
18 take the lead on preparing the application, but in some
19 cases the applicant will request that we do that and we
20 can do that
21 Q In regard to the — as for the Huntington
22 Center Mall who prepared the application?
23 A To my knowledge it was the applicant's
24 architect which was Greenberg Farrow with assistance
25 from the Ezralow Company, E-z-r-a-I-o-w.
11
1 Q What is your position title at EDAW?
2 A When I was fblltime employee, I was a senior
3 associate. Typically now they refer to me as a project
4 manager because I am an independent contractor. And I
5 should say that I am also employed by a company other
6 than EDAW, one major company other than EDAW, if that's
7 the —
8 Q Who is that?
9 A Newhall lAnd and Farming or the Valencia
10 Company.
11 Q It's the same entity?
12 A Same entity. Basically built the City of
13 Valencia or Santa Clarity
14 Q What do you do there?
15 A I work on a specific plan for them called
16 North Valencia No. 2. A specific plan, it's a five acre
17 specific plan.
18 Q And it's for the specific project?
19, A Newhall land and Farming project, correct.
20 Q Anything else that you do IC work with?
21 A No, just those two companies.
22 Q In the last three years?
23 A Yes, just those two.
24 Q lust those two?
25 A Yes.
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
12
3 (Pages 9 to 12)
1
Q Ezralow and Newhall Land and Farming?
t
2
A Yes There is one other .- what's the name?
2
3
It's Morrison, M-o-r-r-i-s-o-u. And they are out of
3
4
Calabassas. And that is for a project in the City of
4
5
Moorpark.
5
6
Q Are you preparing a specific plan for them?
6
7
A I have prepared a specific plan under contract
7
8
with EDAW with the City, and I'm finishing a document
8
9
called an HCP which is Habitant Conservation Plan that
9
10
is required by the U.S. Fish and Wildlife Service for
10
11
federally endangered species which is on that property,
11
12
which is the California Gnat Catcher.
12
13
Q Did you maintain your position as a senior
13
14
associate throughout your time with EDAW?
14
15
A I did, I was until --
15
16
Q Until you became an IC?
16
17
A Until I became an IC, that's correct. There
17
18
was a short period of time where I came back part time
18
19
after my second child, and then the decision was made at
19
20
that point, after losing benefits, to become an IC.
20
21
Q You are familiar with the Huntington Center
21
22
Mall; is that correct?
22
23
A I am.
23
24
Q How are you familiar with it?
24
25
A Initially I started working on it in '98.for
25
13
1 the prior owner the Macerich, M-a-c-e-r-i-c-b, Company. I 1
2 Q I also --
2
3 A They were the prior owners. They were the
3
4 owners that Ezralow purchased the mall from. That's my
4
5 understanding.
5
6 Q And it was Macerich that contacted EDAW?
6
7 A Through a recommendation from the City of
7
8 Huntington Beach to contact EDAW. I have done work for
8
9 the City of Huntington Beach since the mid '80s.
9
10 Q What work did you do for the City?
10
i t A i have done -- I started out doing the
11
12 environmental impact reports when they were redeveloping
12
13 their downtown, Main Street area. 1 have done an EIR
13
14 for them. I'm currently working oa the EIR for the Shea
14
15 Homes project which is a residentiat project It is an
15
16 environmental report for the Home Depot project
16
17 1 recently completed before Macerich contacted
17
18 me, a specific plan and EIR for McDonald Douglas, which
18
19 is now Boeing. And that was for their industrial park
19
20 property which is in the City of Huntington Beach.
20
21 Q When you say "you," you mean EDAW?
21
22 A I mean EDAW.
22
23 Q It's going to be a little confusing now
23
24- because you are an IC, I didn't realize that. We will
24
25 just have to make it clear.
25
14
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
A Most of the IC work that I do I should
clarify, the contract is with EDAW. The contract is
between the City and EDAW and the rest of the other
contract was Ezralow and EDAW. And I'm just contracted
with EDAW to do that work.
Q That's right. I understand that. Okay.
In '98 when EDAW was doing work for Macerich,
what type of work did you do?
A We did the specific plan.
Q I got a question on that. I have seen a
Specific Plan 12 and Specific Plan 13.
Was there a Specific Plan 1 through I I?
A There was, yes The City of Huntington
Beach — I couldn't tell you what they all are, but
there has been 12 specific plans. Up to the time when
you saw 12, that was actually 12 specific plans that had
been adopted within the City of Huntington Beach.
Q SP-12 was adopted with Huntington Beach?
A If that was the one that was Macerich's
specific plan, then it was not adopted. If SP-13 is
Ezraiow's, that one was recently adopted.
Q So, the only one that was adopted by the City
was SP-l3?
A That's correct And probably some of 1
through 10, or i through 11, but I don't know what those
15
are.
Q And then 1 through 11, those would be specific
plans prepared by EDAW for Macerich; is that correct?
A No, Specific Plana 1 through 11 would be other
specific plans in other locations. If the City
prepared — one of them was prepared by EDAW because I
think that SP.10 was the McDonald Douglas' specific
plan. SP-9 or 8 may have been the Meadowlark Golf
Course.
There was a specific plan called Meadowlark
Golf Course which was not prepared by EDAW. It would
either be prepared by the City themselves or another
consulting firm.
Q Could you describe a little bit in more detail
how this numbering system works?
A As I understand it, it would just be the— as
a specific plan application comes into the City, they
will number it as the first number that came in that a
specific — the first time a specific plan was done, it
would have been Specific Plan No. 1.
The second applicant for a specific plan may
be with a different property owner or different
applicant, it would be numbered Specific Plan No. 2 and
soon.
Q Well, do you know when this numbering system
16
4 (Pages 13 to 16)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
7AYNA MORGAN, 08.07:0W
BURLINGTON V. HUNTINGTON
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started?
A I do not. It's the City's numbering system.
Q In addition to preparing a specific plan for
Macerich, what else did EDAW do?
A We did the environmental assessment for the
project which for the Macerich project consisted of a
partial exception under Public Resource Code 210833.
Q Okay.
What is that?
A It's the exception, the Public Resource Code
exception or the environmental assessment
Q Let's start with the environmental assessment?
A The environmental assessment under CEQA, we
did a mitigated negative declaration which part of that
included a partial exception for the Macerich project.
The mitigated negative declaration was done specifically
for the CUP portion of the project The Conditional Use
Permit is what CUP stands for.
The Macerich project, as I recall, had a
specific site plan and had filed applications for a CUP,
whereas the Ezralow project did not file applications
for a CUP.
Q Is it your understanding though that Ezralow
will have to?
A They will have to.
17
Q File a CUP?
A They will have to file.
Q An application?
A An application either for CUP or for a site
plan approval for a site plan review.
Q What is the difference between a CUP an
application for CUP and a site plan review?
A A CUP is something that is a Conditional Use
Permit If there is something in the site plan that is
not outright permitted by the zoning, then there is a
requirement for a Conditional Use Permit
Q Okay.,
A Typically a CUP is a discretionary action
which requires an approval for the planning commission
and City Council. A site plan review or just a site
plan approval in some cases is if the uses are all
permitted uses under the zoning, then some cities do not
require discretionary action for that approval.
Q Is it your understanding that with SP-13 it is
in place?
A Right
Q Do you believe that the City would require
Ezralow to do an application for a CUP, or do you think
that they can just move forward with a site plan review?
A I really couldn't answer that unless I knew
18
1 what the site plan was because the CUP versus site plan
2 review is really going to be dependent on what their
3 final site plan is. So, in terms of ernes and the'
4 heights of the uses, you know it would really be
5 dependant on what their final site plan is.
6 Q If their final plan is not at variance —
7 A Correct.
8 Q -- with the SP-13?
9 A Correct.
10 Q Then they can probably go by way of a site
11 plan review; is that correct?
12 A That's correct.
13 Q The procedures in how to get a CUP versus just
14 a site plan review, can you discuss that the difference
15 between what Ezralow would have to do to get a CUP
16 versus a site plan review?
17 A Well, a CUP, the applications would most
18 likely be similar. The main difference I% as 1
19 understand it, would be that the CUP requires a
20 discretionary action by the planning of the City
21 Council. Whereas a site plan review could be approved
22 at the planning department's staff level or zoning
23 administratm''s staff level approval.
24 Q And for a site plan review, you wouldn't:.
25 necessarily need a public hearing; is that correct?
19
1 A I'm not sure if you would or aot
2 Q With the condition —
3 A The zoning administrator hearings, I know are
4 open to the public. So, I don't know if they are
5 noticed to the saute fashion in the planning commission
6 aad City CouucL They often times — the City has a
7 zoning administrator hearing which looks at and
8 considers projects.
9 And I'm not sure if the noticing requirements
10 for a zoning administrator action are the same as the
11 planning commission and City Council. A CUP though does
12 require a public hearing at least at the planning
13 commission level, is what I recall.
14 Q Does EDAW assist the developer, in this case
15 Ezralow, in proceeding with either the CUP or site plan
16 review?
17 A We haven't been asked to do that.
18 Q
Does EDAW perform those type of services
19 though?
20 A
We have in the past
21 Q
Does EDAW anticipate that they will be asked
22 by Ezralow to perform those services?
23 A
I don't think so.
24 Q
Why is that?
25 A
Ezralow architects and Ezralow have worked
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much more closely with the site plan process. In the
1
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development of the site plan process, and I would just
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think that they would work together to do the
3
4 .
applications for either CUP or a site plan review.
4
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Q Do you give any opinions to Ezralow or to a
5
6
developer as to whether they should proceed by way of a
6
7
CUP or site plan review?
7
8
A I have in the past
8
9
Q In this case you have not though with Ezralow?
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A No.
10
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Q No, being that you have not?
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A I have not, yes.
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Q What is EDAW's involvement now regarding
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14
Huntington Center Mall with Ezralow as being a
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developer?
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A Currently or when we were working — because
16
17
currently there is no involvement.
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Q When did you start working with Ezralow with
18
19
regards to the Huntington Center Mall?
19
20
A September of Iasi year.
20
21
Q September of '99?
21
22
A Correct.
22
23
Q And how did EDAW get involved with Ezralow?
23
24
A Again, the City had recommended EDAW as we
24
25
prepared the prior specific plan for the Macerich's
25
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
MR. WATSON: When you said "they," did you mean the
City or Ezralow?
THE WITNESS: Ezralow had interviewed another
firm. We did not interview with the City just with
Ezralow.
MR. COHEN: I see.
Q When was the first interview?
A Probably back in September.
Q Were you involved in that interview?
A Yes.
Q Who else was involved?
A Our marketing director Kimberly Cowern.
Q How do you spell that?
A K-i-m-b-e-r-1-y, C-o-w-e-r-n.
Q Okay.
And who else was there?
A Scou Dinovitz.
Q And yourself?
A Yes.
Q Was the principal, what's his name, Don Smith
there?
A He was not at the interview. He was
introduced.
Q What was discussed at that meeting?
A The prior work that we had done for Macerich.
21 1 23
i
project. And I was contacted at that point by both the
1
Q Specifically the Specific Plan 12?
2
City and Scott Dinovitz of the Ezralow Company.
2
A Correct
3
Q Well, does Scott Dinovitz, is he employed by
3
Q What else was discussed?
4
Ezralow?
4
A Tbetime frame at which we would be able to
5
Who is Scott Dinovitz?
5
produce a specific plan or revise a specific plan, I
6
A I think he's employed by Ezralow. He was our
6
should say, for Ezralow. And more specifically how
7
key contact person.
7
quickly could we get a proposal to do the work to
8
Q Did you ever speak with Douglas Gray?
8
Ezralow.
9
A At meetings I was introduced to him. All of
9
Q Proposal?
10
my telephone contacts, though, were with Scott
10
A Being — a scope of work with fees, estimates.
11
Q So, EDAW is retained by Ezralow; is that
11
Q Okay. I would like to know what specifically
12
correct?
12
was EDAW's assignment, what was EDAW supposed to do for
13
A Correct
13
Ezralow?
14
Q And all the invoicing for bills and what not,
14
A Basically work with them in revising or
15
that goes to Ezralow?
15
updating the specific plan and provide any necessary
16
A That's correct
16
coordination with City staff in updating the specific
17
Q All that the City of Huntington Beach did was
17
plan.
18
recommend EDAW to provide the services that Ezralow was
18
Q l see.
19
looking for; is that correct?
19
And the specific plan was Ezralow's specific
20
A That's correcL And I believe that they had
20
plan that they were going to submit to the City; is that
21
interviewed another firm besides EDAW.
21
correct?
22
Q Who is that?
22
A That's correct. And our coordination would
23
A You know, I can't recall. They were not
23
also be with their architects and their civil engineer.
24-
local. They were not a local Orange County firm I know
24
Q Do you know who their architects were?
25
that.
25
A Greenberg Farrow.
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BURLINGTON V. HUNTINGTON
1 Q And their civil engineer?
2 A HAD and Foreman, and their traffic engineer
3 was L3aecMt Law and Greenspan.
4 Q What is a civil engineer what do they do?
5 A A civil year does backbone infmstructure for
6 projects. When I say "backbone infrastructure," I mean
7 sewer, water, storm drainage, and all those are required
8 components by State law to be included in a specific
9 plan to lay out basically just the backbone
10 infrastructure.
11 Q And then the architects?
12 A The design guidelines, the site plan, the
13 signage standards.
14 Q And then the traffic engineers?
15 A Traffic analysis, kind of overall circulation
16 plan for the mall. And then they also completed a
17 shared parking analysis as well.
18 Q Were there any other independent contractors,
19 1 guess, that Ezralow was working with regarding this
20 mall?
21 A None that I'm aware of.
22 Q So, what would EDAW do in relation to the City
23 in getting the specific plan going for Ezralow?
24 A Well, we would meet with the City and
25 basically talk with them about the information that
►i
1 we're providing to Ezralow and any input that the City
2 would want to have. We will obviously give them review
3 copies of the document for their comment.
4 Keep them apprised of the status of these
5 studies, technical studies is what I refer to the civil
6 engineering the traffic engineering, and just get any
7 comments from their City departments on concerns that
8 they would have on a specific plan.
9 Q And if the City or its agencies, if they had
10 any comments, what would you do then?
11 A We would relay that information to Ezralow.
12 Q And then Ezralow would?
13 A Either address it or choose not to address it.
14 Q But it's Ez alow's decision to do whatever
15 they want to do with those?
16 A. Correct. --
17 Q With this specific plan?
18 A Correct.
19 Q In this case it was Specific Plan 13?
20 A Yes..
21 Q And I guess a SP-12 too?
22 A Yes.
23 Q Because I guess they had involvement too; is
24 that correct?
25 A As I understand, they did not have any
26
1 involvement In Sp.12 that was the Macerich Company which
2 was a prior owner.
3 Q Okay.
4 A The City did have involvement in SP-12, and
5 they provided Input in SIP-12. A lot of input they
6 provided In SP-12 was similar to the input they provided
7 in SP-13.
8 Q Those being — the input being the comments?
9 A They were certain permitted uses. For
10 example, if they did ant fed they are necessary or
11 warranted for a regional mall site, an auto repair shop
12 is one that I can state off the top of my head that
13 comes to mind, that would be a City comment which I
14 would have then passed onto Ezralow.
15 Q Who was your contact at the City of Huntington
16 Beach?
17 A
Jane James.
18 Q
And she is in what department?
19 A
She is in the planning departmeat.
20 Q
And who else?
21 A
Well, Howard Zeiebhy in the planning director
22 really
wasn't our primary contact. Although, we did
23 discuss things, issues, with him in meetings.
24 Q
Who else?
25 A
Scott, he was the senior planner finder Howard
27
1 Zelefsky, again not the primary contact We had no
2 telephone contact except to we him in meetings.
3 Q Did you ever have telephone contact with
4 Howard Zelefsky?
5 A I did not.
6 Q Jane James was the primary?
7 A Correct.
8 Q Now, did you have a meeting with anyone or
9 speak with anyone from the redevelopment agency?
10 A In meetings, yes, I did, and that would be
11 David Biggs, B-i-g-g-s.
12 Q And who else?
13 A That was &
14 Q What about Fallon?
15 A Melanie Fallon?
16 Q No, it's a guess, F-a-i-I-o-n, I believe is --
17 A Fallon is his first oame?
18 Q We will -- he's definitely in the documents.
19 That does not ring a bell?
20 A No, it does not I know Melanie Fallon during
21 the Macerkh project. She was the director of Community
22 Development for the City of Huntington Beach. And she
23 was involved actually with the McDonald Douglas specific
24 plan that I worked on. We had weekly — biweekly
25 meetings, and she was involved In that specific plan.
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1 I don't recall her being involved in the I 1
2 Macerich specific plan for Ezralow. She's now currently ( 2
3
employed at the City of Long Beach.
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Q When you were working on the project for
4
5
Macerich, who were you working with from the City?
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6
A Jane James was the key contact person there
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also.
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Q Who was the key contact person from Macerich
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9
that you were working with?
9
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A Tom Jared.
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Q Anybody else?
11
12
A No.
12
13
Q What other projects is EDAW working on, on
13
14
behalf of the City?
14
15
A The City of Huntington Beach.
15
16
Q Yes.
16
17
A The Shea Homes'-- currently, the Shea Homes
17
18
EIR. It's also referred to as the Parkside Estates
18
19
Impact Report. I think that's the only other one right
19
20
now.
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Q What about the Edinger Corridor project?
21
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A You know that I should say that EDAW -- there
22
23
is a new principal at EDAW. And i believe that is just
23
24
within the last couple of weeks EDAW was selected to
24
25
work on the Edinger Corridor project. Although I'm not
25
29
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
planning side.
Q Okay.
And when you say planning —
A The physical planning, specifically policy
planning. And when I say "environmental," I mean CEQA
environmentaL
Q So, the services that Ezralow retained you
for, would you consider that the planning side?
A I would say they did more — they retained us
more for planning than they did for environmental.
Although, we did give them advice on environmental.
Q Could you explain the Edinger Corridor
project?
A I'm not really involved in it. No, I'm not
working on it at all. To my knowledge, I don't believe
that the project has even begttn.
Q What I didal say in the beginning in my
admonitions, there is a difference between guessing and
estimating. And we don't want you to guess or just
speculate. We would like you to give your best
estimations. And a typical example of that is, if I
asked you what the length of this table, it's in front
of you, you can give me an estimate.
You don't have a ruler, but you can give me an
estimate on it. If I asked you what the length of my
31
I
involved in that project
1
desk is my office, that's pure speculation.
2
Q Who is that?
2
You have never seen that before?
3
A A gentleman by the name of Kee Ryan, he
3
A I would be speculating to tell you that
4
recently joined EDAW a month ago. I was actually on
4
project
5
vacation when he joined EDAW. He came from a company
5
Q Okay.
6
called PBR. And I believe that they, PBR, was awarded
6
What is the Edinger Corridor project? Well,
7
that contract with him being the principal in charge.
7
there is a project that I know of that requires the
8
And since he's joined EDAW, I believe they were taking
8
widening of the Edinger Street?
9
it back to Council to see if the contract could be
9
A Correct
10
negotiated with EDAW to do that work.
10
Q Is that part of the Edinger Corridor project,
11
Q 1 see.
11
or is that something entirely different?
12
What other companies that perform the same
12
A I know that in prior meetings that I have sat
13
type of services as EDAW are there in Orange County?
13
in, there was discussion of a precise street alignment
14
A The Planning Center. Do you want to know
14
plan for Edinger Corridor, which I believe involved the
15
names of the companies? —
15
widening of Edinger Corridor. And a lot of discussion
16
Q Yeah, the names of the companies.
16
with the traffic engineer and the City, meaning
17
A The Planning Center would do similar work.
17
Ezralow's traffic engineer, to make sure that they had
18
More — not so much on the environmental side, but more
18
that precise street alignment planned so that they were
19
on the planning side. Bonteria Consulting would do
19
accounting for what that alignment, and what that future
20
environmental work.
20
width would need to be.
21
Q How do you spell that?
21
I don't know if that is the precise street
22
A B-o-n-t-e-r-i-a, I believe.
22
plan because that's something that was already adopted.
23
Q Okay.
23
I don't know if it has anything to do with this new
2�
_ Who else?
24
Edinger Corridor project.
25
A A company called Forma, F-o-r-m-a, more on the
25
Q I see.
30
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But as far as the widening of the street, that
is incorporated with Ezralow and SP-13?
A To my knowledge, it is, yes.
Q EzWow is required to widen that Edinger
Street if they go forward with the redevelopment of this
mall; is that correct?
A I don't know if they are required to widen
it. They may have dedicated the right of way, or to
just provide it for the right of way. I don't know if
its their responsibility to do the improvements or not.
That would probably be in the conditions of the approval
that would be adopted with the specific plan.
Q Now, at EDAW you said that Scott Dinovitz was
your main contact?
A Correct.
Q Who else from Ezralow or Huntington -- do you
know the difference between Ezralow and Huntington
Center Associates?
A No.
Q As far as you know, it's Ezralow that owns the
mail?
A Correct.
Q And is the one who is developing the mall; is
that correct?
A That's correct.
33
Q And the one who prepared the -- or had
prepared the SP-13; is that correct?
A That's correct.
Q Does EDAW have a retainer contract with
Ezralow like some sort of a contract for the services
that were rendered?
A Yes, we have a contract with them.
Q Did you bring that with you today?
A I may have brought the original contract.
MR. COHEN: Okay. I would like to mark for
identification as Exhibit No. 142 an agreement letter
dated September 15th, 1999 to Scott Dinovitz. And it's
in regards to the Huntington Crossing Specific Plan.
This is a letter that you just provided me.
Q You are familiar with this?
A Yes..
(PlaintilTs Exhibit 142 was marked
for identification by the court
reporter and is attached.)
BY MR. CORN:
Q And how are you familiar with Exhibit 41?
A I helped prepare it.
Q , And excuse me, that is Exhibit 142.
So, you helped prepare this letter?
A Cotes
34
I Q And this is the — can you describe what this
2 letter is, the purpose of it?
3 A It's Just an agreement letter which is a
4 standard EDAW agreement letter which goes out with every
5 project we start work on. And basically says it a
6 contract, a formal contract is never signed, that EDAW
7 would be reimbursed for the services that we prepared.
8 Q I see.
9 And was any letter agreement similar to this
10 prepared or signed by the City of Huntington Beach?
11 A No. Not to my knowledge. I don't have a copy
12 of it.
13 Q Okay. I would like to mark for identification
14 as Exhibit 143, the same September 15th, 1999 letter
15 unsigned. But this one has an attachment to it.
16 How are you familiar with this document?
17 A I assisted in preparing W
18 (Plaintiffs Exhibit 143 was marked
19 for identification by the court
20 reporter and is attached.)
21 BY MR COHEN:
22 Q And what is it?
23 A It's our scope of work for preparation of the
24 Huntington Crossing Specific Plan update.
25 Q So, is this, the Attachment A. is that
35
referred to in Exhibit 142?
2 A Yes.
3 Q So, basically Attachment A and Attachment B
4 describes the scope of work that EDAW was to perform for
5 Ezralow; is that correct?
6 A That's correct
7 Q And is it correct that EDAW never entered into
8 any contract with the City of Huntington Beach in
9 regards to the Specific Plan 13; is that correct?
10 A That's correct
11 Q I would like to go to Page 1 of Attachment A
12 to Exhibit 143.
13 And I would like you to discuss the scope of
14 work that EDAW was to perform for Ezralow.
15 A Okay. The tasks that we were proposing to do
16 was basically attending project status meetings related
17 to the specific plan. And those project status meetings
18 could occur with City staffers or their subcontractors.
19 And we were to document the meeting minutes and agendas,
20 the contents on what was discussed in those meetings.
21 Also we were to prepare the specific plan
22 document revisions, basically using the Maceric6
23 document that had been prepared as a base or standing
24 point And the third major task in preparing a general
25 plan consistency analysis which is required by State law
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to be a component of a specific plan. And then the
fourth item which was, I believe, an optional item, was
to prepare the environmental assessment.
Q Was that ever prepared?
A A formal environmental assessment was not
prepared for SP-13. One was prepared for the Macerich
project, but for Ezralow because a CUP and a definitive
site plan had never been adopted or prepared, an
environmental assessment could not be prepared. Some
findings were adopted in the Public Resource Code that I
cited previously in the deposition. It was used as an
exception for exemption for a site project
Q Was it -- the environmental impact report
needs to be prepared?
A It's my opinion that one does not need to be
prepared.
Q And why is that?
A Because the general plan that was prepared by
the City and adopted by the City had an environmental
impact report with that And as part of Public Resource
Code, I think I cited the number before. And now I
can't recall exactly what the number is, a project which
is consistent basically with assumptions in the City's
general plan are under the threshold of development
That is looked at in the City's general plan
37
and can be exempt from CEQA for the findings. Prior
CEQA document for the City's general plan can be used to
adopt the specific — a subsequent specific plan. And
particularly what Public Resource Code Section 210833B
is, if a development project is consistent with the
general plan of a local agency and an environmental
impact report was certified with respect to that general
plan, the application of this division, meaning CEQA, to
the approval of that development project, shall be
limited to the facts on the environment which are
peculiar or partial to the project, or which were not
addressed as significant facts in the prior impact
report.
And it goes oo. just — that's the gist of
it And basically the purpose of that PRC section is to
streamline the environmental process for specific plan
projects which are identified in a City's general plan
and consistent with tbeir general plan.
Q And this is the advice that EDAW provided to
Ezralow; is that correct?
A And the City.
Q And the City?
A Yes, more so the City because we believe that
-it's -- we have done environmental work for the City for
15 years and have never had anything challenged, and
38
7AYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1 keep it that way.
2 Q And basically maybe just to put it in a
3 layman's perspective, since the specific plan isn't
4 going to alter or change the concept of the general
5 plan?
6 A Correct.
7 Q And the since the general plan has already had
8 an environmental report performed on it?
9 A Correct.
10 Q It's Ezralow's position that another EIR need
11 not be prepared?
12 A That's correct. And actually the general plan
13 looked at a much greater development scenario or a
14 larger amount of development than was looked at in the
15 general plan. Now, that's not — only one thing that I
16 would add to that is, that no development can occur
17 right now with the specific plan adoption.
18 It's a zoning document. And a subsequent
19 environmental review will be necessary at such time as a
20 definitive site plan becomes available for the project.
21 And at that time that you have a definitive site plan,
22 you need to consider those impacts that may have not
23 been looked at in the general plan EIR jag due to the
24 level of detail
25 Q So, Isee.
39
1 At each step you will have to make another
2 determination as to whether you have to do an EIR?
3 A Correct.
4 Q At this particular step with the specific
5 plan, you are of the opinion that an EIR need not be
6 produced?
7 A Correct
8 Q Did the City of Huntington Beach or any of its
9 agencies ever ask EDAW to prepare a specific plan for
10 this Huntington Center Mall?
11 A You mean going to contract with the City --
12 just ask as to prepare it I mean, I have had staff
13 members suggest that they hope that I was involved in
14 the project again because I have a good rapport with
15 them, and that's why they recommended EDAW.
16 Q But aside from a recommendation, they never on
17 their own behalf --
18 A CorrecL
19 Q -- requested EDAW to prepare a specific plan?
20 A That's correc L
21 Q I would like to mark for identification as
22 Exhibit 144 a copy of SP-12. And there is a January 22,
23 1999 cover letter to it?
24 A Is that the one`!
25 Q Yes, that's it. We're going to go through --
40
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BURLINGTON V. HUNTINGTON
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I have some specific questions that I want to ask and
then we will go through all of your documents and —
A Okay.
Q I would like to know if you are familiar with
Exhibit 144?
A Yes.
(Plaintiff's Exhibit 144 was marked
for identification by the court
reporter and is attached.)
BY MR. COHEN:
Q How are you familiar with it?
A I assisted in the preparation of it.
Q And what is Exhibit 144?
A It's a copy of Specific Plan No. 12 dated
December 7th, 1998 which at that time was referred to as
the Pacific Promenade.
Q And that was a specific plan prepared for
Macerich; is that correct?
A That's correct.
20 Q And this plan was authored by — was it
21 authored by EDAW?
22 A EDAW in concert with Macerich and the City of
23 Huntington Beach and the architects of Macerich who were
24 different than the architects of Ezralow.
25 Q Do you know who they are?
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A Feola and Archuleta, F-e-o-I-a, and
A-r-c-h-u-l-e-t-a.
Q And you are reading from?
A The title page on the specific plan.
Q I see.
That would be page -- probably Page 2 of it?
A Yeah.
Q Okay.
What involvement did the City have in regard
to -- they provided their comments; is that correct?
A Correct.
Q And then Macerich and EDAW discussed those
comments to determine whether or not to include them in
SP-12?
A That's correct
Q Did the City have any other involvement in
regard to SP-12 other than just providing comments?
A That was — their main involvement would be
providing comments:
Q Do you remember what their comments were at
the time of SP-12, some of the things that they were
looking for?
A Things that stand out in my mind would have
been the permit use. They had definite uses that they
did not want to see in the specific plan such as auto
42
1 repair. Things that they didn't feel were regional -type
2 uses.
3 Another issue that they had was with the
4 design guidelines and wanting to ensure that when the
5 mail was revamped and received new architectural, and,
6 you know, just a new facade, that some of the other
7 freestanding buildings were also revamped to make them
8 look like they fit in the mall.
9 When I say "freestanding buildings," I would
10 say the Montgomery Wards, Burlington and Mervyn's.
t 1 Q So, it was then -- and those three
12 freestanding buildings, it was intended that they would
13 remain --
14 A Correll.
15 Q -- in that mall after the redevelopment; is
16 that correct?
17 A Yes, if they were going to remain. I don't
18 know if it was always intended that they would remain.
19 But if they were going to remain, there was concern that
20 they would match the rest of the mall. And that same
21 concem was also expressed with Ezralow.
22 Q With Ezralow?
23 A Yes.
24 Q Was there anything -- was there anything:
25 discussed about a big box theory? Are you familiar with
43
1 that? Or a big box planning of retail, for example how
2 Montgomery Wards is considered a big box?
3 Are you familiar with that concept?
4 A But when I hear "big box," I think more of a
5 Puce Club or Home Depot as a big box. I don't think of
6 it as much for a department store as a big box. I think
7 they refer to those as department stores than they do
8 big box. If you are talking about how they refer to
9 Montgomery Wards —
10 Q So, if there is -- I understand. The
11 definition of big box does not pertain to Montgomery
12 Wards, Burlington or Mervyn's, it would be more of a
13 theory of Home Depot?
14 A I don't know if it doesn't pertain, I just
15 don't recall big box being used to describe — they were
16 always descnlmd as the existing department stores or
17 department stores. I don't know that the big box
18 definition could exclude a department store.
19 Q I see. I think.
20 A There is really.not a set definition for big
21 box.
22 Q So, even though there might be some --
23 Burlington and Montgomery Wards and Mervyn's they are
24 not excluded from SP-13?
25 A No.
44
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Q Not would they be excluded from SP-12?
A That's correct
Q And at the time of SP-12, Macerich intended to
include Burlington; is that correct?
A To my knowledge they did. A lot of the tenant
negotiations between Macerich and their tenants as well
as Ezralow and their tenants were not subjects that were
discussed with as.
Q I see. At the time —
A EDAW.
Q -- EDAW?
A Yes.
Q And that was at the time of SP-12?
A And SP-13.
Q EDAW had really no involvement?
A The tenant negotiations, tenant relation or
negotiations. Other than that, we were aware that
negotiations were going on.
Q Of some sort?
A Of some sort, but not just of what those
were.
Q Okay. I would like to mark for identification
as Exhibit 145, a specific plan identified as No. 12,
but it's different than 144.
And I would like to see if you are familiar
45
with that SP-12?
A Yes, I am.
(Plaintiffs Exhibit 145 was marked
for identification by the court
reporter and is attached.)
BY MR COZEN:
Q How are you familiar with it?
A We again assisted in the preparation of this
specific plan, and I believe I have a copy.
Q Right. Now, we will just use this copy and
then we will move to yours.
Now, why was this changed the SP -- well, why
is Exhibit 144 changed into Exhibit 145?
A To represent the proposal by the Ezralow
Company. This specific plan is dated March 20th, 2000.
This was one of the first drafts as I understand, that
was submitted to the City of behalf of Ezralow's
proposal rather than the Macericb proposal.
Q Do you know why then SP-12 became SP-13?
A I think it probably changed once, the
application went in and there was a different owner
involved. That decision would have probably been made
by the City. It wasn't a decision that was made by
EDAW.
Q lust to give it a new number?
46
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1 A Just to give it a new number, correct-
2 Q Who did the application on behalf of the
3 Ezralow?
4 A I believe it was Ezralow in conjunction with
5 their arckitects which is Greenberg Farrow architects.
6 Q There is an Exhibit 4 that is attached in
7 Exhibit 145, the Ezralow SP-12?
8 A Okay.
9 Q And I would like to --
10 Do you know who prepared this Exhibit 4 that
11 is attached in Exhibit 145?
12 A I do not. If I had to guess, it would be
13 Ezralow and their architects.
14 Q They gave you that chart to incorporate into
15 this document?
16 A Correct
17 Q I see.
18 Do you know when it was prepared?
19 A I'm guessing sometime before March.
20 Q I would also like to rum your attention to --
21 there is a couple site -plan renderings.
22 A Uh-huh.
23 Q And these site -plan renderings in 145, they
24 differ from the site -plan renderings contained in 144?
25. A Okay.
47
1 Q And I would like to know how -- who prepared
2 the site -plan renderings that is attached as Exhibit 3
3 to Exhibit 145, who prepared those?
4 A To my knowledge Greenberg Farrow prepared
5 Exhibit 3 and Exhibit 145.
6 Q And it was Ezralow that told you to
7 incorporate those site plans into the their SP-12?
8 A Correct.
9 Q Do you know when that occurred?
10 A Prior to March, probably.
11 Q How long did EDAW work on SP-12 from the time
12 that =- Ezralow came in, I believe, in September of '99?
13 A Correct
14 Q How long did it take to prepare or revise the
15 new SP-12 which is marked as Exhibit 145?
16 A Once we received all the information, that was
17 probably a week just mainly incorporating the
18 information.
19 Q And this was information --
20 A And this was provided site plans, revised
21 infrastructure plans, which would be sewer, water, storm
22 drain.
23 Q And these were all plans?
24 A Design guidelines.
25 Q And these were prepared by Ezralow's
48
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1
independent contractors and given to you through
1
Beach.
2
Ezmlow; is that correct?
2
And your familiar with this document?
3
A Correct, that's correct-
3
A I am.
4
Q The City never gave you any of these
4
(Plaintiff's Exhibit 146 was marked
5
exhibit — any of the illustrious conceptual site plans
5
for identification by the court
6
attached as Exhibit 3 in Exhibit 145; is that correct?
6
reporter and is attached.)
7
A That's correct.
7
BY MR. COHEN:
8
Q And the City didn't provide you the chart that
8
Q And how are you familiar with it?
9
is attached as Exhibit 4 to Exhibit 145; is that
9
A I assisted in preparing it.
10
correct?
10
Q What is that document?
11
A That's correct.
11
A It's a document that takes the goals and
12
Q That all came from Ezralow; is that correct?
12
policies of the general plan and provides statements on
13
A That's correct. I know Ezralow did have
13
how the specific plan is consistent with those goals and
14
discussions independent with — independently of the
14
policies
15
EDAW with the City in developing a lot of the conceptual
15
Q So, the goals and policies that set forth in
16
site plans But all of my plans came directly usually.
16
the SP-12 — or is the SP-13 this document?
17
through Scott or someone from Scott's office-
17
A The goals and policies that are set forth in
18
Q And preparing the SP-12 and SP-13, your sole
18
the City's general plan.
19
direction would come from Ezralow and primarily Scott?
19
Q I see.
20
A With respect to the initial drafts of the
20
A And the different elements of the general plan
21
specific plan, once we did the general plan consistency
21
are stated. And then statements on how the SP-12 or
22
which is an appendix to the specific plan, the City
22
SP-13 are consistent with the City's goals and policies
23
provided comments on that and EDAW did incorporate the
23
are provided in italics text.
24
City's comments without involvement through Ezralow and
24
Q I see.
25
then that was submitted back to the City.
25
So, the general plan, that's the City's plate
49 1 51
i
Q Oh, I see. Well, what — what are you talking
1
am I correct?
2
about specifically?
2
A That's correct.
3
A The general plan consistency is another
3
Q The Specific Plan 12 and 13 that was Ezralow's
4
document that EDAW prepared which is an appendix to the
4
plan to the City; is that correct?
5
specific plan._
5
A Their proposal to the City.
6
Q And when was this prepared?
6
Q Ultimately it's a City plan once it ultimately
7
A The initial draft was prepared in May.
7
becomes adopted only?
8
Q May 2000?
8
A Once it becomes adopted, it is the City's
9
A Correct And we provided a disk and a hard
9
plan. And I mean, it's a fine line. At some point
10
copy to the City once we incorporated the revisions
10
Enslow did provide a later document of the last draft
11
And the City, they may have made the final revisions to
11
of the specific plan to the City. And the City did
12
this document before it went to the planning
12
incorporate their modifications into that document
13
commission, Because in going through my records,1
13
before it went to the planning commission.
14
notice the same general plan consistency that was
14
So, I guess — my guess would be at that point
15
attached to the specific plan that went to the planning
15
when the City started editing Ezralow's plan and
16
commission In Joy and they did re -date the document
16
incorporating their own edits and changes and desires
17
June lltft =
17
into that plan, I would say at that point it was the
t 8
Q I see.
18
City's specific plan, even though it may have not been
19
A Frvv the May daft
19
yet adopted.
20
Q Okay. I would like to mark for identification
20
Q When did that occur?
21
as Exhibit 146 a document that will -- it's an
21
A It's my understanding that it occurred in June
22
Appendix B?
22
before it went to the planning commission.
23
A Correct.
23
MR. WATSON: You want to take a real quick break.
24
Q With a cover letter from EDAW that says
24
(Recess taken.)
25-
General Plan Consistency for the Crossing at Huntington
25
MR. CORN: Let's go back on the record. I would
50 1 52
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I like to go over Exhibit 146 a little bit and just get a
2 more detailed understanding of what this document is.
3 Q This document which is an Appendix B, and is
4 this attached to SP-13?
5 A Correct, it is.
6 Q Now, the document is prepared by the City; is
7 that correct?
8 A EDAW, and then submitted to the City for their
9 comments.
10 Q I see.
l i A And it was submitted on May 30th which had
12 incorporated comments from a prior earlier May
13 submittal, and the City provided comments on May 25th.
14 So, the final draft was submitted on May 30th which was
15 letters submitted in a computer version. I'm not aware
16 of if subsequent changes were made to the May 30th
17 document, but the document that is in the staff report
18 or the specific plan that was submitted to the planning
19 commission is dated June 8th.
20 Q June 8th.
21 So, you don't know if our Exhibit 146 is the
22 final one?
23 A Final one or not.
24 Q Okay.
25 Now, when EDAW submitted it to the City that
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was on behalf of Ezralow; is that correct?
A That's correct.
Q And what this Appendix B does, it compares
what is set forth in the specific plan to the
requirements that are laid out in the general plan; am I
correct on that?
A Yes, that's pretty correct.
Q Well, how? Can you elaborate on that?
A It's specifically if we wanted to take -- an
example, it goes through the different elements. The
fast element being the land use element of the general
plan. And it states a policy that is included in the
City Land Use element, which is to establish -- and it
goes to the development uses to -support the needs and
reflects the economic demands for the City's residents
and investors.
And then there is a couple of paragraphs which
respond to how the specific plan is consistent with or
will help achieve that policy that's in the City's
general play
Q I see. So, the input that -- well, strike
that.
Basically what this is, this Appendix B is to
make sure that the specific plan is consistent with the
general plan?
54
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1
This consistency plan was created,.Appendix B?
2
A
Correct
3
Q
And then, I guess, the next step will be when
4
the final site plan is created?
5
A
Correct
6
Q
There is going to be some sort of review
7
process?
8
A
Correct.
9
Q
To make sure that it conforms to the specific
10
plan?
11
A
That's correct.
1z
Q
And it goes in sort of like tiers?
13
A
Tiers, that is correct.
14
Q
And so the City's input then on the Appendix B
15
would just be to the extent that it conforms to their
16
general plan; is that correct?
17
A
That's correct.
18
Q
Who created the Italian Village Theme, do you
19
know?
20
A
I don't know.
21
Q
Do you know what I'm talking about?
22
A
I do know what you are calling about.
23
Q
But you don't know if that came from Ezralow
24
or —
25
A
From Greenberg Farrow, or the City.
LV
1 ' Q You would presume that it came from Ezralow or
2 Greenberg Farrow?
3 A I would presume that.
4 Q Now, what other — was this the extent of the
5 input that the City had in regard to the SP-13 this
6 Appendix B that is attached as Exhibit 146?
7 A That was the extent of their input on
8 Appendix B, but they did have input on the specific plan
9 text itself as well as Appendix C, which are the signage
10 standards.
I 1 Q I see.
12 A So, they had input on the entire document.
13 Q Once it was prepared, they then gave a review
14 of it?
15 A That's correct, they gave a review and made
16 comments. And in particular at one meeting that I was
17 at, they had asked for a legislative draft to understand
18 the specific changes that Ezralow had made to the prior
19 Macerich specific plan.
20 Q They asked what?
21 A They asked for a legislative draft which
22 basically they wanted to see the edits that had been
23 made by Ezralow to the original Macerich specific plan.
24 Q I see.
25 They wanted to see how it changed?
.Y.
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1
A How it changed, so strike -out text, and you
1
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know, highlight new text.
2
3
Q I see.
3
4
Do you have a copy of that?
4
5
A Of the legislative draft, yes, it's May 13th.
5
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MR. COHEN: I would like to mark for identification
6
7
as Exhibit 147, I guess we will call this the
7
8
legislative draft of SP-13.
8
9 .
(Plaintiffs Exhibit 147 was marked
9
10
for identification by the court
10
11
reporter and is attached.)
11
12
MR. COHEN: Okay. You presented this document as
12
13
part of your production.
13
14
Q How are you familiar with this?
14
15
A It was sent to us by Ezralow, one of Scott
15
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Dinovitz' assistants, at our request so that we would
16
17
have the most up to date Ales that the City had. At
17
18
this point, Ezralow had produced this legislative
18
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draft.
19
20
In other words, EDAW provided them with the
20
21
latest disk that we had of the specific plan document,
21
22
the latest board disk, and they went actually through
22
23
and did the legislative draft changes.
23
24
Q They would have taken Exhibit 144 which was
24
25
the Macerich SP-12?
25
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A Or the one that came after the Macerich which
would have been the March, I believe.
Q Exhibit 145?
A Yes.
Q Okay.
Where is that?
A I think that's one that you are holding. I
think it's this one (indicating.) But is that not -- I
know this one had the number actually.
Q 1 see. So, this legislative draft,
Exhibit 147, is just the strike -out version -- what were
the strike -outs exactly, I'm still confused?
A Okay. For example, it you go to Page 6, the
first paragraph, the change was made to the last
sentence that said the intent is to establish a visitor
regional commercial shopping setting and achieve a high
quality in retail and entertainment design.
The prior sentence, the prior way, the intent
was to establish a public -private partnership to enable
the creation of a community center setting and
achievement. So, the strike -out is the old text that
was changed, and the new text is underlined to just show
specifically how the edit was made.
Q Who made these changes?
A Ezralow made these changes.
58
Q Who requested that those changes be made,
who's language is that, the changes?
A I don't know if it is the City's language or
if it was Ezralow's language. The changes » at this
point I was not involved In this legislative draft which
is why I requested a copy of it be sent to me.
So, it was Scott worsting with the City, and I
couldn't tell you specifically if Jane James it the City
requested these language changes, or if Ezralow did
those changes.
Q On their own?
A On their own.
Q I see now.
Why weren't you involved in this 147?
A The turnaround time. It was a quick
turnaround time, and it was in the middle of other
commitments, deadline commitments that I had. And we
couldn't turn it around as quickly as Ezralow needed it
to be turned around.
Q Now, were these changes just part of the
meetings, the various meetings?
A Yes,1 believe, and the meetings that we have
to get into.
Q So, all the changes that were between then
SP-12 and at least —well, but I guess 147, Exhibit 147
59
1 probably had a couple of changes after that?
2 A Definitely. But, yes, theft was subsequent
3 changes to the May 22nd, 2000 document before it went to
4 the planning commission June 7th, 2000. And I believe
5 that those subsequent changes were made at that point by
6 the City.
7 Q Okay.
8 A From May to June. So, from March 20th, 2000,
9 to the May 22nd, 2000 the legislative changes that were
10 made by Ezralow and/or the City were done without EDAW's
11 involvement.
12 Q I see.
13 Originally EDAW had, I guess, on a disk the
14 format -- had the specific plan on a disk. is that
15 correct?
16 A That one, uh-hub. And this is on the zip disk
17 that I'm giving you a copy of, it's on the specific plan
18 March 2, 2000.
19 Q And that's Exhibit 145?
20 A That's correct.
21 Q Did EDAW have also a SP-13?
22 A We do not have this version on disk, no.
23 Q The strike -out version you are saying?
24 A The legislative —
25 Q The 147?
60
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1 A That is correct.
2 Q But did EDAW help author, or did EDAW author
3 SP-13 when it became the new number SP-13?
4 A No, because 1 think what I'm seeing here is
5 SP-12. Between March and May is where I see the new
6 number. And we did not author or produce any of the
7 changes in this, with the exception that we provided
8 some insert language with respect to CEQA and this
9 insert language is here.
10 And that was in a transmittal. That insert
11 language would have been our input into SP-13, and it
12 was related to CEQA
13 Q Do you know if this was incorporated, this
14 insert language?
15 A I believe it was.
16 Q Okay.
17 1 would like to mark for identification just
18 so we have it, as 148, a two -page document, and we will
19 entitle it, CEQA inserts for SP-13. And this is a
20 document that you just provided me?
21 A Yes.
22 Q Can you explain it again, Exhibit 148?
23 A It's inserts related to the CEQA clearance and
24 specifically reference to Public Resource Code Section
25 210833 that we discussed previously, and where that
61
)AYNA MORGAN, 08.07..00
BURLINGTON V. HUNTINGTON
1 A And that was faxed to the City on —
2 Q (:would like to mark for identification a five
3 page document that was handed to me. And it has a cover
4 sheet by EDAW that says to Jane James. It's dated —
5 the second page is dated April 26, 2000. And it's in
6 regard to the CEQA clearance for the Crossing at
7 Huntington Beach Redevelopment, Specific Plan.
8 This is a document that you presented for
9 Ezralow; is that correct?
10 A Yes, and the City. It was actually requested
11 at a meeting that I believe that we had with the City
12 and Ezralow. And as a follow-up to that meeting, we
13 prepared the document or the letter.
14 (Plaintiffs Exhibit 149 was marked
15 for identification by the matt
16 reporter and is attached.)
17 BY MR. COHEN-
18 Q But this was prepared under the service
19 contract that you had with Ezralow?
20 A That's correct.
21 Q And this is - this letter incorporated the
22 understanding of both Ezralow and the City in regard to
23 an EIR?
24 A That's correct.
25 Q We're going to mark for identification the-
63
I
would be appropriate in the specific plan, within what
1
April 26, 2000 letter from EDAW to Jane James of the
2
sections that would be appropriate.
2
City of Huntington Beach as 149.
3
The other input that we would have had on this
3
1 would like to go to Exhibit 141 which is the
4
May 22nd, 2000, would have been the GP consistency which
4
notice of deposition?
5
was actually toward the end of May. So, I don't believe
5
A Okay.
6
that it got incorporated until June.
6
Q And what I'm going to do is, in the notice of
7
(Plaintiffs Exhibit 148 was marked
7
deposition you were requested, and in the subpoena, to
8
for identification by the court
8
produce certain documents and you did so today. And we
9
reporter and is attached.)
9
actually have attached several of them as exhibits so
10
BY MR. COHEN:
10
far. And you also provided me a zip drive.
I 1
Q Between May and June was EDAW still providing
11
And I also see here a memorandum, and that
12
services for Ezralow?
12
just lists out what is on the zip drive; is that
13
A Yes, we were.
13
correct?
14
Q And so — __
14
A That's correct:
15
A. I believe the main services that we provided
15
Q I'm going to mark for identification as
16
at that time were the general plan consistency.
16
Exhibit 150 an EDAW memorandum dated August 2, 2000,
17
Q And what else?
17
from Alia Hokuki to Jayna Morgan.
18
A The environmentaL-
18
How do you pronounce the name?
19
Q The additional inserts?
19 •
A Alia.
20
A The additional inserts. And we I betieve,
20
Q Hokuki.
21
also prepared a letter which is dated — well, it was
21
And what is that memorandum?
22
faxed on May the 4th. It's dated April the 27tb, and
22
A This is a memorandum of the items that we
23
that was a more detailed explanation of the appropriate
23
placed on the zip disk There are four folders of the
24
CEQA clearance for this specific plan.
24
project, CEQA documents correspondence, meeting minutes
25
Q I see,
25
and then the specific plans:
62
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JAYNA MORGAN, 08.07.00-
BURLINGTON V. HUNTINGTON
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(PtaietiRs Exhibit 150 was marked
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reporter and is attached.)
MIL COHEN: All right.
Q And the documents that are on the zip drive,
how are those maintained by EDAW?
A They are on a project file within our hard
drive, our network system, and they are maintained by
job number.
Q And this zip drive, the documents that are
contained on the zip drive were directly pulled from the
computer at EDAW; is that correct?
A That's correct
Q And those documents are contained in the
ordinary course of business at EDAW; is that correct?
A That's correct
Q All the documents that you produced today or
have here today, how are those maintained?
A The hard copies or —
Q The hard copies.
A The hard copies are in a correspondence binder
that we keep for each project, incoming and outgoing
correspondence in the chronological order.
Q And they are contained in the ordinary course
of EDAW?
65
A Correct.
Q I would like to go through, do you have
Exhibit 1-A in front of you?
A Yes, I do.
Q What I'm going to do is actually attach or
mark for identification as Exhibit 151, the documents
that you brought today that you have described as
outgoing.
A Okay.
Q Okay.
And that's this packet right here?
A With some of those being pulled and fisted as
prior exhibits.
MR. COH N: I want to go off the record for one
second. -
(Plaintiff s Exhibit 151 was marked
for identification by the court
reporter and is attached.)
(A discussion was held off the record.)
MR. COHEN: We're going to go back on the record.
Q The documents that are identified in
Exhibit 150 which is the memo, that refers to the zip
disk that was provided?
A Yes.
Q We're going to go through the memo real quick
66
1 and determine which documents you actually brought a
2 hard copy of in addition to the zip disk.
3 A Okay.
4 Q Or it will be quicker to go through the ones
5 that are i,ot -- that we don't have a hard copy of.
6 Okay.
7 So, the items that we're going to talk about
8 are items that we do not have a hard copy of but are
9 included on the zip disk?
10 A Correct
11 Q What are they?
12 A The EA form under Item 1, I did not see a bard
13 copy in our outgoing correspondence. I didn't see a
14 hard copy of that But there is a copy of that on the
15 zip disk. Under the correspondence the third bullet
16 item that is Dinovitz, we have several correspondence to
17 Scott Dinovitz: I'm not sure which one that would have
18 been.
19 I would guess we have a hard copy, but I can't
20 verify it since I didn't put the zip disk together. So,
21 that would be questionable, The other one that says
22 letter to Scott Dinovitz, the one, two, three, four,
23 five — fifth bullet item down. And then the revision,
24 I'm not sure if there are hard copies printed out of
25 those as wed as the specific plan transmittal
67
I - So, the last three bullet items I could not be
2 sure. Everything in Item 3 we have hard copies of as
3 well as the copies that are on the computer. And under
4 Item 4, the first bullet item, I don't know what that
5 is. So, I don't know if we have a hard copy. But we do
6 have a general plan consistency and we have hard copies
7 of the other two bullet items.
8 Q Now, who is Alia Hokuki?
9 A She works at EDAW. She's an associate, and
10 she works under my direction.
11 Q I see.
12 And you directed her to make this memo and
13 make the zip disk?
14 A Yes, I did. I asked her to copy everything
15 off of the project file and just put it and organize it
16 in a fashion that would be easy to follow.
17 Q And she gave it to you today, and you brought
18 it here?
19 A Correct.
20 Q So, again, we're going to move back to 151
21 which we marked for identification as the outgoing
22 correspondence?
23 A Correct. Meaning those were correspondence
24 that were sent out by EDAW.
25 Q And I would like to mark for identification --
68
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i would like to mark for identification as Exhibit 152,
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the incoming — I presume this is incoming mail; am 1
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A CorrecL
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Q I shouldn'tsay mail, correspondence?
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A CorrecL In this e-mail age, this is all
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actually goes with this.
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Q We're actually on the record so you can talk
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loud. Let's go off the record.
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(A discussion was held off the record.)
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(Plaintiffs Exhibit 152 was marked
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for identification by the court
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reporter and is attached.)
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BY MR. COHEN:
15
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Q In addition to the documents that you provided
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in 151, Exhibit 151 and Exhibit 152, you provided 142
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which would be part of the incoming mail or incoming
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correspondence?
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A Yes, incoming and outgoing, it was outgoing
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when it was sent to Ezrnbw. And then when they sent it
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back, it became incoming.
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Q Okay.
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143 as well is the work proposal?
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A Outgoing, yea
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IV]
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Q And Exhibit 144?
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A Is the Macerich Specific Plan.
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Q Which actually --
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A It was kept in our incoming because that was
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sent back to us by the City.
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Q Okay.
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A With comments.
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Q And Exhibit 145?
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A That would have been outgoing.
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Q And Exhibit 146?
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A Outgoing.
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Q And Exhibit 147?
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A Incoming.
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Q Exhibit 148? _
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A Outgoing..
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Q And Exhibit 149?
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A- Outgoing,
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Q Okay. Let's go over Exhibit 141, the notice
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of documents to produce.
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A Okay.
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Q Request No. 1 requests: All documents
21
22
exchanged by you and Ezralow regarding, referring or
22
23
relating to the shopping center or Burlington.
23
24
Have all of those documents been produced here
24
25
today?
25
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
A Yea
Q And No. 2, all documents exchanged between you
and Gray regarding, referring or relating to the
shopping center or Burlington.
Have all those documents been produced here
today?
A Yes.
Q No. 3, all documents exchanged between you and
Whitman Breed regarding, referring or relating to the
shopping center or Burlington.
Have all of those been produced today?
A I have never heard of Whitman Breed.
Q It's the law firm that represents Ezralow
or -- that may have changed recently to Holland &
Knight.
MR. WATSON: My firm.
THE WITNESS: Okay, yes.
BY MR. COHEN:
Q Did you -- how did you prepare for this
deposition?
A I contacted Ezralow's attorney and asked them
if I needed to meet with them. And they said it was up
to me if I felt comfortable not meeting with -them, I
didn't need to. So, I did not meet with theme I asked
them what documents I needed to produce.
71
They said everything what is in your files.
And I asked -- I think that was about it. They just
said "tell the truth."
Q And which attorney did you speak to?
A Mark Shipow.
Q No. 4, all documents exchanged -- and that was
the extent of your preparation?
A Yeah, a phone conversation with them.
Q And then getting your documents pulled
together?
A Yeah. I wasn't sure, hard copies and computer
files, and if they are duplicative, just put everything
that you have.
Q All documents exchanged between you and
Huntington Associates regarding, referring or relating
to the shopping center or Burlington.
Have all those been produced?
A Yea
Q All documents exchanged between you and
Linscott regarding, referring or relating to the
Shopping Center or Burlington.
Have all those documents been produced today?
A Yes.
Q All documents exchanged between you and
Greenberg regarding, referring or relating to the
72-
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
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shopping center or Burlington.
Have those been produced today?
A Yes.
Q What is not here — did you produce any
invoices?
A No. I did not. And I did not produce a copy
of the traffic proposed for Unscott Law Greenspan.
That wasn't something that was submitted directly to me,
it was submitted to Ezralow.
Q Was it part of your file?
A I have the old one that was part of the
Macerich file. However, all my Macerich files are in
dead storage. So, I did not produce any of my old
Macerich files, but the new traffic study, we did not
have a copy of it in our file. That traffic study was
prepared for Ezralow.
Q So, the old one was produced today then?
A The Macerich files. I did not file old
Macerich files that were in dead storage. So, the
traffic study that was prepared for Macerich was not
produced.
Q Okay. All documents exchanged between you and
the redevelopment agency including without limitation
other departments or agencies for the City of Huntington
including the City Council regarding, referring or
73
relating to the shopping center or Burlington.
Have all of those been produced?
A Yes.
Q All documents exchanged between you and the
fire department regarding, referring or relating to the
shopping center or Burlington.
Have all of those documents been produced?
A Yes.
Q No. 9, all documents exchanged between you and
Bryan Ezralow regarding, referring or relating to the
shopping center or Burlington.
Have all of those documents been produced?
A Yes.
Q No. 10, all documents concerning any and all
discussions, including closed sessions between you and
among you and Ezralow, regarding, referring or relating
to the shopping center or Burlington.
Have all of those been produced?
A Yes.
Q No. 11, all documents concerning any and all
discussions between and among you and Gray regarding,
referring or relating to the shopping center or
Burlington.
Have all of those been produced?
A Yes.
74
1 Q All documents concerning any and all
2 discussions between you and among Whitman Breed
3 regarding, referring or relating to the shopping center
4 of Burlington.
5 Have all of those been produced?
6 A Yes.
7 Q No. 13, all documents concerning any and all
8 discussions between and among you and Huntington
9 Associates regarding, referring or relating to the
10 shopping center or Burlington.
11 Have all of those documents have been
12 produced?
13 A Yes.
14 Q 14, all documents concerning any and all
15 discussions between you and among you and Greenberg,
16 regarding, referring or relating to the shopping center
17 or Burlington.
18 Have all of those been produced?
19 A Yes.
20 Q Did you ever have any discussions directly
21 with the architects?
22 A Yes.
23 Q In regard — in substance, what were those
24 discussions about?
25 A Well, the beginning of the project back in
75
1 September we had outlined a fist of data needs. And we
2 met with Bob Bocci and discussed what types of
3 information we would need his input on for the specific
4 input, strictly the conceptual site plan. Input on the
5 design guidelines and input on the signage standard.
6 So, there were subsequent conversations with
7 him where I transmitted copies of prior design
8 guidelines and prior signage standards for him, for his
9 review and comment.
10 Q Okay. No. 15, all documents concerning any
11 and all discussions between and among you and Linscott
12 regarding, referring or relating to the shopping center
13 or Burlington.
14 Those documents have been produced?
15 A Yes.
16 Q 16, all documents concerning any and all
17 discussions between and among you and the redevelopment
18 agency regarding, referring or relating to the shopping
19 center or Burlington.
20 Have those been produced?
21 A Yes.
22 Q 17, all documents concerning any and all
23 discussions between and among you and other departments
24 or agencies for the City of Huntington Beach regarding,
25 referring or relating to the shopping center or
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Burlington
Have ail of those documents been produced?
A Yes.
Q 18, all documents concerning any and all
discussions between and among you and the fire
department regarding, referring or relating to the
shopping center or Burlington.
Have all of those documents been produced?
A Yes.
Q 19, all documents exchanged between you and
Ezralow regarding, referring or relating to
redevelopment agencies's eminent domain powers.
Have all of those documents been provided?
A Yes. Could I ask a question?
Q Yes.
A If there wasn't any discussions or if there
wasn't any documents, do you need me to state that, or
by me saying "yes," and you see that there aren't any?
Q I'm assuming that there was none.
A There was none. Okay. So, I don't need to
say no there was no — that's right.
Q But on 19, I want to ask you a couple of
questions about that.
Have you had any discussions regarding any
eminent domain action that the City might do in regard
77
to the redevelopment at this mall?
A No. The discussions I recall were when
Macerich was involved, and there was a discussion about
the City's redevelopment agency possibly acting as an
applicant in conjunction with Macerich on -- I believe,
the issue was, it came up when they were trying to get
signatures from Montgomery Wards.
And at that point in one meeting, I believe
someone at the City was going to check and see if they
could sign the application, the redevelopment department
could sign the application on behalf of Montgomery
Wards.
Q And what was the result of that?
A I don't know; I don't recall. I wasn't really
involved in the applications.
Q And that would be an application for the
SP-12?
A Correct. And I believe that Macerich's
architect prepared the application. I know that they
prepared the applications for Macerich that was Feola
and Archuleta.
Q Who prepared the applications for the Ezralow
S P-13?
24 A I believe it was Greenberg Farrow, but it
25 could have been Ezralow themselves.
78
JAYNA MORGAN, 08.07.00
13URLINGTON V. HUNTINGTON
I Q But it was not EDAW?
2 A It was not EDAW, am
3 Q Is it your understanding that Montgomery Wards
4 would have to also sign the application?
5 A Because I believe they were an owner.
6 Q And can you elaborate on that?
7 A When there is an application for any type of
8 development that would involve property owned by someone
9 else — for example, if the mail owned a portion of the
10 property, it takes — if they are applying for
I 1 something, that would also cover someone else's property
12 that is under someone else's ownership, they would also
13 need to sign the application.
14 Q And that's just a particular code or
15 municipal —
l6 A Code requirement
17 Q Of the City of Huntington Beach, that's
18 correct?
19 A Yes.
20 Q Do you know if that was done in regard to the
21 Ezralow specific plan?
22 A I do not.
23 Q Would anyone at EDAW have any knowledge of
24 that?
25 You would be the sole person that would have
79
1 knowledge of that application?
2 A Yes.
3 Q No. 20, all documents exchanged between you
4 and Gray regarding, referring or relating to the
5 redevelopment agency's eminent domain powers?
6 A Yes.
7 Q Did you ever have any discussions with Ezralow
8 regarding their eminent domain powers?
9 A No.
10 Q Does EDAW provide any services to a client in
11 regard to enlisting the City's, you know, help in
12 getting an eminent domain action?
13 A I never have on any of my other projects
14 personally. It's not to say that someone else at EDAW,
15 maybe one of our other offices. I'm not aware of
16 anybody at our Irvine office that has ever provided that
17 type of information to a client.
18 Q It's not just one of the types of service that
19 EDAW does?
20 A Correct.
21 Q How many offices does EDAW have?
22 A 11.
23 Q 11 throughout the country or all in Southern
24 California?
25 A Throughout the country. Well — and,
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1
actually, they are worldwide. I could send you a
1
2
brochure; if you would like.
2
3
Q Okay.
3
4
A I knew that when I was a full-time employee.
4
5
But now that I'm an IC, I don't have to know the
5
6
technical details.
6
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Q Do you know of any companies or consultants
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8
that do provide a service of how a developer could work
8
9
with the City in getting them to do an eminent domain
9
10
action?
10
11
A I don't.
11
12
Q Or a combination?
12
13
A I don't. I would think law firms maybe.
13
14
Q It's possible.
14
15
A That would be my guess.
15
16
Q ' We're on No. 21. Okay.
16
17
All documents exchanged between you and
17
18
Whitman Breed regarding, referring or relating to the
18
19
redevelopment agency's eminent domain powers?
19
20
A Yes.
20
21
Q And there are no documents responsive to this.
21
22
request?
22
23
A No.
23
24
Q No. 22, all documents concerning any and all
24
25
discussions between and among you and Ezralow regarding,
25
81
1 referring or relating to redevelopment agency's eminent I 1
2
domain powers.
2
3
Again, there is no documents responsive to
3
4
this request?
4
5
A No.
5
6
Q Actually I can ask whether there are any
6
7
documents -- I mean --
7
8
A I can answer if there is no documents?
8
9
Q Yes.
9
10
A Okay.
10
11
Q No. 23, all documents concerning any and all
11
12
discussions between and among you and Gray regarding
12
13
referring or relating to redevelopment agency's eminent
13
14
domain powers?
14
15
A There are no documents
15
16
Q Okay. No. 24, all documents concerning any
16
17
and all discussions between and among you and Whitman
17
18
Breed regarding, referring or relating to the
18
19
redevelopment agency's eminent domain powers?
19
20
A There are no documents
20
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Q No. 25, all documents concerning any and all
21
22
meetings held between and among Ezralow regarding,
22
23
referring or relating to the shopping center or
23
24
Burlington?
24
25
A Yes, there are meeting minutes.
25
82
Q You have those responsive to that?
A Yes.
Q There are — are there meeting minutes in
April, December and January, do you know offhand or?
A I believe there are — than was meeting
minutes produced in December, January, February and
April. The February meeting was with OCTA and I'm
looking at Exhibit 150.
Q What is OCTA?
A Orange County Transit Authority.
Q Okay.
No. 26, all documents concerning any and all
discussions between you and Ezralow regarding, referring
or relating to Ezralow entering into an honor of
participation agreement with the redevelopment agency in
connection with redevelopment of the shopping center.
A Yes. I believe that was discussed in
meek. Meanhk& we would have it in the meeting
minutes.
Q Would there be any other documents responsive
to this, other than the meeting minutes?
A No. "
Q All videotapes regarding, referring or
relating to a conceptual redevelopment of the shopping
center.
fig]
A I'm not aware of any videotapes.
Q 28, all documents depicting a redeveloped
shopping center including without limitation or
promotional or advertising material regarding, referring
or relating to the shopping center.
Are there any — well, there are documents
that are responsive to that?
A The specific plan.
Q The specific plan.
Are you aware of any other documents?
A No.
Q Are you aware of any marketing efforts that
Ezralow or the City has done with regard to the shopping
center, the redevelopment of the shopping center?
A I'm not aware of any.
Q 29, all documents regarding, referring or
relating to the shopping center or Burlington, including
without limitation, documents depicting a conceptual
design of a redeveloped shopping center.
Are there any documents?
A Specific plan, I would —
Q But the only documents that would be
responsive to that, to actually 28 and 29, would be the
specific plans themselves?
A Yes..
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1 Q On No. 18, were there any discussions between
1
2 you, or EDAW, and the fire department regarding the
2
3 center?
3
4 A Only at the meetings that we had in the
4
5 meeting minutes, but not specific discussions between
5
6 as.
6
7 Q And No. 10, all documents concerning any and
7
8 all discussions including the closed sessions between
8
9 and among you and Ezralow.
9
10 Were you -- was EDAW ever involved in any of
10
11 the closed session meetings?
11
12 A I'm not sure. We have had meetings just with
12
13 the project team. Would that be referred to as a closed
13
14 session?
14
15 Q Did they tell you that it was a closed
15
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16
17 A No. It was like a team meeting.
17
18 Q The project team is a team comprised of the
18
19 City?
19
20 A Actually, the initial meetings that we had,
20
21 like a kick off meeting, the City was not involved.
21
22 That was just with the consultants. I think it took
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23 place at Greenberg Farrow's offices, and that was Doug
23
24 Gray and Scott Dinovitz and Bob BuccL
24
'_5 But I was never in a meeting where it was
25
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1
stated that it was a closed -session meeting.
1
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Q When did that meeting take place?
2
3
A I believe that one took place in January. I
3
4
think it was December or January, I'm not sure. Yeah,
4
5
January 21st, the project team meeting. And the meeting
5
6
minutes always list who the attendings are.
6
7
Q Let me go over my meeting minutes.
7
8
A Here is one from December 2nd.
8
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Q Uh-huh, yeah.
9
10
A Did you want that one?
10
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Q Let's keep that there.
11
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A Okay.
12
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Q And I got this. I would like to mark for
13
14
identification as Exhibit 153, meetin_ g minutes of
14
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December 2, 199%.
15
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Who prepared these meeting minutes?
16
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A Myself and Alla HokukL
17
18
(Plaintiffs Exhibit 153 was marked
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for identification by the court
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reporter and is attached.)
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MR. COHEN: Okay.
21
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Q Was this the first meeting that you had?
22
23
A With the team, yes; after the initial
23
24
interview we had with Ezralow.
24
25
Q And so the initial interview would have been
25
86
JAYNA MORGAN, 08.07.00
13URLINGTON V. HUNTINGTON
in September of 99; is that correct?
A Yes.
Q Between September '99 and December 2, 1999,
were there any other meetings?
A No, none that I'm aware of.
Q What work did EDAW do between September 1999
and December 2, 1999?
A I think we transmitted copies of the most
recent Macerich specific plan and City comments to the
architects and Ezralow, and we provided contacts of who
worked on the Macerich sewer, water and storm drain, the
traffic report, and the shared parking analysis.
Q And when you are working with the architects
and Ezralow, that was incorporating the new conceptual
site plans into the SP-12 or SP-13?
A But that came after December. I think they
were — my understanding is that they were still working
on various site plans probably from the time of
September through December.
Q Okay.
Were you in contact with anyone from the City
between September 199 and December 2, 1999 in regard to
the shopping center, of course?
A Jane James from the City.
Q How many times — did you ever meet with her
87
during that period of time?
A No, not by myself, just talked to her on the
phone.
Q How many telephone conversations did you have?
A Two or three.
Q And what was the substance of the telephone
conversations?
A Just to tell her that we were selected by
them, and that we were providing them with the latest
copy. And to verify that the latest copy that we were
providing was the same latest copy that she had in her
Ries, and it had been several months since the Macerich
project had been worked on.
And just to kind of review what the
outstanding issues were with her when the Macerich
project was put on hold and had stopped.
Q And that was the automotive issue from
Montgomery Wards.
Any other issues?
A The design, how we were going to handle when
the design guidelines, or when the facades of Montgomery
Wards, Burlington and Mervyn's would be upgraded to
match the rest of the mall; what that trigger would be.
Q Is that the amortization schedule?
A Yes. That was something that was still up in
88
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JAYNA MORGAN, 08.07.0d
BURLINGTON V. HUNTINGTON
1 the air at the time that the Macerich project was put 00
2 bold.
3 Q What was the City's position on the
4 amortization schedule?
5 A They just thought that one needed to be done,
6 and they were in the process of doing that. The only
7 other issue that I didn't mention before that was
8 outstanding, was the water podding under 100 year
9 flood. How much ponding would be allowed in the parking
10 lot.
11
12
13
14
15
16
17
18
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20
21
So, this was something that was being
discussed with the Public Works Department and Macerich
and their civil engineers Hall and Foreman.
Q Was it the City's position that they didn't
want any ponding, that they wanted —
A No, they were going to allow a certain depth
of ponding. I think it can be 12 inches, and I think
Macerich was coming up with something greater than 12
inches.
Q I see.
22
23 SP --
Do you know what is provided for now?
Is there going to be any ponding in the new
24 A In the new SP, I don't know. I would have to
25 look that up.
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Q Was Burlington ever mentioned during the time
period of September 1999 and December 2, 1999 in your
telephone conversations with Jane James?
A No.
Q What about Montgomery Wards?
A No.
Q Well, maybe the automotive?
A Well, Montgomery Wards wasn't specifically
mentioned, and it relates to the — it was more the
uses The City didn't want certain fast food
drive-thm's They were opposed to, at that time,
automotive.
So, it was kind of more discussed in the terms,.
of uses that they didn't want to allow as a permitted
use in this specific plan and not specifically any of
the tenants or existing folks that were there.
Q- Does EDAW provide a function of trying to
convince the City to, let's say, use drive-thru's —
let's say that the developer wants like a specific type
of use or to be allowed to use something specific on the
property, does EDAW provide any service to try to
convince or encourage the City to permit those uses?
A Not really. It's more so left up to the
applicant because I have always viewed EDAW as an
extension of the City staff, especially with the
all
1 environmental work that they do with as More of oar
2 contracts have been directly with the City than with
3 applicants
4 So, if we had to advocate something, I would
5 be advocating to the developer why the City wouldn't
6 want that particular use versos advocating to the City
7 why they should consider that particular use.
8 Q Even though, at least in this case, you said
9 EDAW was retained as the agent of Ezralow?
10 A Yes, I have a long-standing working
11 relationship with the City. And this is the first
12 contract that I have ever had with Ezndow.
13 Q In development of specific plans, is it
14 common — it's common that the developer, the owner of
15 the property is the applicant —
16 A That's —
17 Q — is that correct?
18 A Well, it could be the owner of the property or
19 it could be a City agency.
20 Q In your experience, what is more common?
21 A With the specific plans that I have worked on,
22 it's typically been the owner of the property. The
23 specific plans that I have worked on have all ben raw
24 land and not developed land. So, that would be another
25 distinction. I think when the City or its agendes get .
91
involved is when there is redevelops euL
That is probably when it's more common to see
the City as an applicant.
Q But in this case Ezralow was the applicant?
A nails correct, it's my understanding.
Q okay:
At the December — let's move to the
8 December 2, 1999 meeting?
9 A Okay.
10 Q Who was present?
11 A Scott Dhmwkz, and myself, Alfa Hokaki, Carey
12 .Covington who Is so longer with EDAW, but was a staff
13 member at that time, Dick Bowman from Hall and Foreman,
14 Bob Baed or Robert Bacci. And then Kyle Mayberry with
15 Linscott•Law Greenspan.
16 Q Do you know how long this meeting was?
17 A I think It was an hoar, boar and a balE
18 Q Where did it take place?
19 A At Greenberg Farrow's offices.
20 Q Who set up this meeting?
21 A Scott Dhwvitz
22 Q Would he have called you and the architects
23 and then the City personally to have this meeting, or
24 did you arrange —
25 A I think be called and arranged the meeting.
92
23 (Pages 89 to 92)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1 Q What was the purpose of this meeting?
2 A To just discuss over all the process, and
3 where the project was left off before, and what point in
4 time Ezralow's proposal was, and how they thought the
5 process would move forward. What EDAW would need in
6 order to generate a revised or updated specific plan.
7 Q Who specifically was part of the project
8 team? It's referred to in the back of Page 3, center,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
crossing project team?
A Everybody in attendance. And then I would
also consider Jane James of the City part of the project
team. And as you can see on the attached contact list,
there are a lot of other members in the project team
that were contacts. But Jane was really our key contact
at the City.
Q On No. 3 it says the CUP, it's -- bullet item
under Section 1, it says the CUP will include three
alternative plans?
A Right.
Q Could you comment on that?
A As I recall, at that time the Ezralow Company
was intending to apply for a CUP as Macerich had done
concurrent with the specific plan. And because they
didn't have any type of resolution on what that site
plan would be, that they could apply for — they were
93
discussing having multiple alternatives for their CUP
application.
Q I see.
Now, who wanted to have alternative plans, was
it Ezralow that wanted to have these plans?
A Yeah, I think that it was their suggestion.
That's how they were going to proceed at that time.
Q Did the City ever say that they did not want
Burlington Coat Factory --
A No.
Q -- in any of these meetings?
A No. They just said they wanted them all to
match. They wanted, them all to look the same.
MR. COHEN: Let's go off the record for one quick
second:.
(A discussion was held off the record.).
MR..COHEN: We're back on the record.
Q So, we left off, that to your knowledge -- or
you don't remember the City ever telling Ezralow that
Burlington Coat Factory would not remain in the mall?
A No.
Q Did Ezralow ever discuss with you, EDAW, that
it didn't want to include Burlington in the shopping
center?
A No.
94
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1 Q I guess at the December 2 meeting, there was
2 still contemplation that there would be the need for a
3 Conditional Use Permit?
4 A Yes, similar to what Macerich had done, I
5 think. At that point, what my understanding is, was
6 that they, being Ezralow, had just recently reviewed the
7 specific plan and applications from Macerich. And at
8 that point were trying to proceed in the same fashion.
9 Q No definitive change -- you don't know if they
10 are going to have to do a CUP or site plan; am I correct
11 on that?
12 A I don't know which one they will need to do.
13 I know that they will need to submit a definitive site
14 plan. I don't know if that site plan will require a CUP
15 or just a site plan review.
16 Q Is EDAW still involved in this project, or are
17 your services pretty much completed?
18 A I think our services are pretty much
19 completed. I know there is a public hearing this
20 evening, and we haven't been asked to attend that public
21 hearing.
22 Q Were you asked to attend the previous public
23 hearings?
24 A No, we weren't,
25 Q Who would normally ask you to attend, would
'95
1 that be the developer?
2 A Or the City, either one. If they felt that
3 there was — if I had to comment on why, probably the
4 specific plan at this point was really a City document.
5 And I believe that City stag felt that they could
6 answer any questions of the decision maker that may have
7 come up on the specific plan.
8 And the environmental analysis was pretty
9 straightforward as well because there was no definitive
10 site plan as part of the actions. There was no site
11 specific environmental analysis don. When I'm asked by
12 City stay); it's based on some specific site -analysis
13 that I have done.
14 Q They want to ask you specific questions?
15 A Relating to my CEQA conclusions or my
16 environmental conclusions.
17 Q On the second page, it says that the project
18 will be completed in one phase.
19 Could you give -- can you discuss what this
20 means?
21 A Well, as I understand it, at that point in
22 time, they were anticipating the backbone infrastructure
23 being installed. When I say "backbone infrastructure,"
24 again the water, sewer, storm drainage, all being
25 completed
96-
24 (Pages 93 to 96)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A.Veritext Company- 800.649.8787
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1
And the redevelopment of the main portion of
1
1999 letter?
2
the mall all being completed at the same sequence rather
2
A Correct.
3
than trying to do half of it at one point in time and
3
Q We will discuss that in a second.
4
another half at another point in time.
4
A Okay.
5
Q Okay. The Section 2, it says next step in
5
Q Okay.
6
actions.
6
Now, between December 2, 1999 and January 21,
7
And basically a couple bullet points on what
7
2000, did you have any meetings with the City?
8
EDAW needed to do?
8
A No, or any City agency. I do not think so.
9
A Right.
'9
Q What was your response to my question?
10
Q And these were — can you talk about that?
10
Did you have any telephone conversations
1 i
How did it come about that EDAW was required
I 1
between the December 2 meeting and January 21?
12
to do more work?
12
A I'm sure I had telephone conversations; I
13
A Well, with respect to verifying if the
13
can't recall the substance of those.
14
previous CEQA document would be still applicable. At
14
Q And that would be with Jane James?
15
that point in time, we really didn't have a site plan.
15
A Just to update her on the status and what was
16
And I think they were asking as to just review the prior
16
discussed through the December 2nd meeting. And I
17
CEQA docameat that had been done for Macerich and their
17
believe there was a meeting with OCTA that occurred
18
CUP, and determine if that approach would still be
18
subsequent to December 2nd, but prior to January 21st.
19
applicable.
19
Q But —
20
As I recall, they were way under. I think
20
A I did not attend that meeting.
21
Macerich at one point had 1,000,000 square feet oll J
21
Q Do you know who attended that meeting?
22
development I think they were at 950-. So, off the
22
A Alifa Hokuki and Scott Dmovitz, and a
23
top of my bead, I had given an answer that I thought
23
representative from Greenberg Farrow. And that was
24
that the CEQA document, EIR's use of the prior general
24
specifically to go over the bus stop issues
25
plan, the EIR would still be applicable. And that It
25
Q Did you have any in -person meeting with anyone*
97
99
1
would still be dependent on their finalization of a site
1
from Ezralow from December 199 and January 21?
2
plan or a CUP application.
2
A No.
3
That would be able to tell me if I could use
3
Q And when I say "you," l mean EDAW.
4
the same initial study. And the mitigated negative
4
And I guess we have to — except the OCTA
5
declaration was done for my revision, or — if that
5
meeting?
6
would need to be revised — that is the extent of
6
A Right:
7
follow-up on the first ballet.
7
Q But aside from that, there was no other —
8
Q Was that — and that was a City concern; is
8
A None that I can recaIL
9
that correct?
9
Q — that you have met with Scott Dinovitz in
10
A I think it was both Ezrabw and the City. And
10
person?
11
then the meeting — Ezralow had requested that we
11
A No, none that —like none that I can recall.
12
schedule a meeting witit OCTA, which is the Transit
12
Q Did you have any telephone conversations with
13
Authority, through the City. The contact at the City is
13
him?
14
Terry Elliot. She's with the Public Works Department.
14
A Yes, I'm sore..
15
The meeting would be on discussing the
15
Q Approximately how many?
16
possibility of eliminating some of the bus stops along
16
A Couple:
17
Edinger. And possibly bring the bus stops that are
17
Q During the period of December199 through
18
outside on Edinger into the mall, and that meeting was
18
January 21, 2000, was EDAW preparing the SP-12,
19
set w
19
Exhibit 145?
20.
And then preparing a list of items needed to
20
A We may have made some minor revisions at that
21
complete the specific plan revision was the next bullet
21
point We may have began, but no major changes were
22
item which I believe we did prepare a letter on
22
being done at that time because a lot of information was
23
December 7th as a follow-up, yeah, to outline the
23
outstanding from Ezralow.
24
different items that were needed for that
24
Q And I would like to mark as Exhibit 154 the
25--
Q And you are referring to the December 7th,
25
January 21, 2000 meeting minutes of the Huntington
98 1 100
25 (Pages 97 to 100)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company-'800.649.8787 -
1
Center Crossing.
1
2
Do you know who came up with the name
2
3
Huntington Center Crossing?
3
4
A I'm guessing Ezralow, but I don't know.
4
5
(Plaintiff's Exhibit 154 was marked
5
6
for identification by the court
6
7
reporter and is attached.)
7
8
MR. COHEN: Here. You can have a copy of it.
8
9
Q Who prepared this?
9
10
Are you familiar with this document,
10
11
January 21, 2000-meeting minutes?
11
12
A Yes, I am.
12
13
Q How are you familiar with it?
13
14
A I assisted in preparing it.
14
15
Q You assisted in preparing it?
15
16
A Yea
16
17
Q And who else prepared it?
17
18
A Alia HokukL She actually attended this
18
19
meeting. I did not attend this meeting.
19
20
Q Did she report back to you though on it?
20
21
A Yes, she reported back to me, and I reviewed
21
22
the minutes and possibly made minor edits.
22
23
Q Who tells you to make these meeting minutes?
23
24
A We had made them per City staffs request
24
25
during the Macerich project. And I think it was just a
25
101
1 carry-over that we continued to do the meeting minutes I 1
2
once Ezralow got involved.
2
3
Q Do you know where this meeting took place?
3
4
A At the City of Huntington Beach.
4
5
Q Do you know why it took place there as opposed
5
6
to GFA or Greenberg Farrow?
6
7
A Because when — I think the City is involved
7
8
with meetings with applicants, that it's —just I think
8
9
it's their standard policy that they take place at City
9
10
Hall unless it's an off -site meeting, and they are going
10
11
somewhere to specifically look at a project site.
11
12
Q On that person that we were talking about
12
13
was Fauland Herb, F-a-u-l-a-n-d?
13
14
A Yeah, I know Herb. He's -with the planning
14
15
department
15
16
Q Do you know who called this meeting?
16
17
A I believe it was again Scott Dmovitz and
17
18
possibly the City to check on the status.
18
19
Q Were these — how were the minutes taken, just
19
20
by shorthand?
20
21
A Yes.
21
22
Q There were no tape recorders?
22
23
A No.
23
24
Q Or videotapes?
24
25
A No.
25
102
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
Q Did anyone prevent — did anyone try and tape
it?
A Huh-uh.
Q What was the purpose of this meeting, the
January 21, 2000 meeting?
A Just to bring City staff up to speed with
where Ezralow was, and their proper process of the
specific plan and the applications, and discuss
procedures and how they might move forward.
Q But you were not present at this meeting?
A I was not, no. I had a schedule.
Q Alia Hokuki, did she take -- do you still have
her handwritten notes?
A I could check with her. I'm not sure if I
do.
Q Now, this January 21, 2000, these meeting
minutes, did they just come directly from her
handwritten notes?
A Yes, they did.
Q Did you have any discussions with anyone
following -- aside from Alia Hokuki, following the
January 21 meeting about the meeting?
A Not that I recall, no.
Q There is a section on Page 3?
A Uh-huh.
103
Q That says next -step action items?
A Uh-huh.
Q And somebody was to do — at least -- well.
Scott Dinovitz was to provide all the needed documents
that were requested and the correspondence from EDAW?
A Uh-huh.
Q And that would be to help you prepare and
assist EDAW in preparing the SP-12 or 13?
A Correct.
Q I will get back to that in a second. [ would
like to mark for identification as Exhibit 155 -- no,
you can have those — a project meeting agenda dated
April 13, 2000. And it's seven page document?
A Okay..
Q This was actually previously marked as an
exhibit, Exhibit 13. So we will just keep that as
Exhibit 13. We won't mark iL
Are you familiar with this document?
A Yes, I am.
Q What is this document?
A. This is the agenda prepared by Jane James of
the City of Huntington Beach, of a meeting that took
place at City Hall on the project.
Q Actually, I'm going to break this up. And
what I'm going to do is, I'm going to mark for
104
26 (Pages 101 to 104)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
1 identification as Exhibit 155 the — it's entitled
1 (Deposition proceedings concluded at 1:30 p.m.)
2 No. 9, it's the Crossings at Huntington Project Meeting
2 (Declaration under penalty of perjury attached hereto.)
3 Agenda, Administration Department. And then the actual
3
4 meeting minutes we're going to make as a separate
4
5 exhibit
5
6 So, 155, you are familiar with — you have
6
7 reviewed this document that was prepared by Jane
7
8 James; is that correct?
8
9 A Yes, I have. This is a City permit claim.
9
10 MR. COHEN:.I have a clean copy of those minute
10
11 meetings. If you got — this is a good place to stop.
11
12 Let's go off the record for a second.
12
13 (A discussion was held off the record.)
13
14 (Plaintiffs Exhibit 155 was marked
14
15 for identification by the court
15
16 reporter and is attached.)
16
17 MR. COHEN: Due to some scheduling conflicts that
17
18 we have right now where Ms. Morgan has to attend a
18
19 meeting at 2:00 in downtown, it's about 1:30 right now,
19
20 we have agreed that we will continue this deposition
20
21 until August 25, 2000. The deposition will be conducted
21
22 at the offices of EDAW. And we will commence at around
22
23 1:30 p.m.
23
24 What I will do is instruct that the court
24
25 reporter be relieved of her duties. She will prepare
25
105 1 107
1 this deposition and designate it as Volume I and will
2 then send it to Ms. Morgan at the EDAW offices. And
3 also include a self-addressed stamped envelope with it,
4 that will be addressed to our offices, the offices of
5 Tuchman & Associates.
6 Ms. Morgan will then have 30 days to review
7 and make any necessary corrections, at which time she
8 will then sign the transcript under penalty of perjury
9 and return it with the enclosed self-addressed stamped
10 envelope to the offices of Tuchman & Associates.
11 If the original is not signed, or if it's lost
12 or misplaced, then we will use a certified copy in lieu
13 of the original. And so, in which case, if you do make
14 any corrections — what you can do, you can xerox the
15 page, or you can make another letter that indicates
16 where your corrections were made, and then send it to
17 us.
18 So, a certified copy can be used in lieu of
19 the original, only on the condition that the original is
20 lost or misplaced.-
21 Is that agreeable to you, Ms. Morgan?
22 THE WITNESS: That's agreeable to me.
23 MR. WATSON: That's fine. .
24 Could we alsoget a copy of the transcript
25 when it's done.
101-1
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)AYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
]AYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
28:16 29.23 30:6,8
30:22 31:15 32:14
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)ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 109
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7AYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
enable 58:19
enclosed 106.9
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JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
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BURLINGTON V. HUNTINGTON
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]AYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
play 8:10
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Promenade 41:16
IILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
JAYNA MORGAN, 08.07.00r
BURLINGTON V. HUNTINGTON
promotional 84:4
pronounce 64:18
proper 103:7
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
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submittal 53:13
submitted 46:17
49:25 53:8,11,14
53:15.18,25 73:8,9
IAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
subpoena 7:11 64:7
subsequent 38:3
39:18 53:16 60:2,5
76:6 99:18
substance 75:23 88:6
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suggest 40:13
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
JAYNA MORGAN, 08.07.00
BURLINGTON V. HUNTINGTON
title 12:1 42:4
today 8:18,24 34:8
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uses 18:16,17 19:3,4
27:9 42:24.43:2
54:14 90:10,14,22
using 36:22
usually 10:7 49:16
U.S 13:10
vacation 30:5
Valencia 12:9,13,16
variance 19:6
various 59:2187:18
verify 67:20 88:10
verifying 97:13
version 4:14 53:15
58:1160:22,23
versus 19:1,13,16
91:6
videotapes 83:23
84:1 102:24
viewed 90:24
Villa 6:18,20
Village 55:18
visitor 58:15
Volume 106:1
Von 7:19
vs 1:8 2:8
V-i-t-1-a 6:20
V-o-n 7:19
want 7:17,18 26:2,15
30:14 31:19 41:1
42:25 52:23 66:14
77:22 86:10 89:15
90:10,14 91:6 94:8
94:23 96:14
wanted 54:9 56:22
56:25 89:15 94:4,5
94:12,13
wanting 43:4
wants 90:19
Wards 43:10 44:2,9
44:12,23 78:7,12
79:3 88:18,22 90:5
90:8
warranted 27:11
wasn't 9:6 27:22
46:23 72:11 73:8
77:16,17 78:14
90:8
water 25:7 48:21
87:11 89:8 96:24
WATSON 3:9 23:1
52:23 71:16
106:23
way 8:1 19:10 21:6
33:8,9 39:158:18
97:20
week 48:17
weekly 28:24
weeks 29:24
well 8:1 16:25 19:17
22:3 25:17,24
27:2132:6 45:6
46:12 50:1 54:8,21
56:9 59:25 62:21
67:25 68:3 69:24
75:25 80:25 84:6
90:7,8 91:18 96:9
96:21 97:13104:3
went 46:21 50:12,15
52:13,22 57:22
60:3
were 7:9 14:3,3,12
21:16 22:10,23,24
23:9 24:20,24
25:18 27:9 29*5
29:9 30:8 32:18
34:6 36:15,19,21
37:10 38:1141:23
42:20,21 43:1,7,17
43:19 44:15 45:7,7
45:17,18,21 48:23
48:25 53:16 58:11
59:20,24 60:5,9,10
62:13,16 64:7
65:11 68:23,24
' 73:19 75:23 76:6
78:2,6 79:5 85:1
85:10 87:4,17,17
87:21 88:8,9,10,15
88:20 89:6,16
90:11,16 93:14,25
94:7 95:8,22 96:22
97:10,16,20,22
98:24 100:21
102:12,19,19,22
103:10104:5
106:16
weren't 59:14 95:24
West 3:9
we're 26:1 40:25
63:25 66:20,25
67:7 68:20 69:9
81:16 94:17 105:4
Whitman 71:9,12
75:2 81:18 82:17
widen 33:4,7
widening 32:8,15
33:1
width 32:20
Wildlife 13:10
Wilshire 2:213:5
witness 6:5 23:3
71:17106:22
words 57:20
work 7:21 12:15,20
14:8,1015:1,5,7,8
21:3 23:25.24:7,10
24:14 29:25 30:10
30:17,20 35:5,23
36:4,14 38:24
48:1169:24 81:8
87:6 91:197:12
worked 20:25 28:24
87:1188:13 91:21
91:23
working 13:25 14:14
21:16,18 25:19
29:4,5,9,13 31:15
59:7 87:13,17
91:10 -
works 8:1 16:15 68:9
68:10 89:12 98:14
worldwide 81:1
wouldn't 19:24 91:5
X 4:1
xerox 106:14
yeah 30:16 42:7 72:8
72:1186:4,9 94:6
98:23 102:14
year 21:20 25:5 89:8
years 9:4,14,17 10:3
12:22 38:25
Zelefsky 27:2128:1
28:4
zip 6:2160:16 64:10
64:12,23 65:5,10
65:11 66:22 67:2,9
67:15,20 68:13
zone 11:8
zoning 10:20,21
18:10,17 19:22
20:3,7,10 39:18
001:8 2:8
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 117
16:20 36:11 67:12
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1-A 66:3
1-21-00 5:10
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1015:25 74:14 85:7
10:25 2:20 6:1
100 89:8
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17875 7:19
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1992 9:18
1998 41:15
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35:14 40:23 86:15
87:3,6,7,22 90:2,2
92:8 99:1,6
2 5:8 12:16 16:23
42:6 60:18 64:16
71:2 86:15 87:3,7
87:22 90:2 92:8
95:1 97:5 99:6,11
2nd 86:8 99:16,18
2:00105:19
20 80:3
20th 46:15 60:8
20001:17 2:21 6:1
46:15 50:8 60:3,4
60:8,9,18 62:4
63:5 64:1,16 99:7
100:18,25 101:11
103:5,16 104:13
105:21
2181:16 99:6,11
100:1,18,25 101:11
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21st 86:5 99:18
210833 17:7 61:25
210833B 38:4
213 3:6,11
22 40:22 81:24
22nd 60:3,9 62:4
23 82:11
24 82:16
25 82:21 105:21
25th 53:13
26 63:5 64:1 83:12
27th 62:22
28 84:2,23
29 84:16,23
3 48:2,5 49:6 68:2
71:8 93:8;16-
103:24
30 4:17 106:6
30th 2:21 3:5 53:11
53:14,16
327 7:23
34 4:13
3435 2:21 3:5
35 4:14
385-8000 3:6
-- - ---- -
4 47:6,10 49:9 68:4
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JAYNA MORGAN, 08.0?.00
BURLINGTON V. HUNTINGTON
4th 62:22
400 7:20
40411:12
414:16 34:21
46 4:17
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5-26-00 4:21
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514:19
5210:3
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6 58:13
62 4:23
63 4:25
633 3:9
65 5:4
66 5:5
660-8044 7:22
69 5:7
7 1:17 2:20 4:11 6:1
7th 41:15 60:4 98:23
98:25
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8-2-00 5:3
80s 14:9
86 5:8
896-2400 3:11
9 5:11 74:9 105:2
9-15-99 4:12,14
90010 3:6
90071-2040 3:10
91/early 9:18
92 9:18 _
92614 7:20--
92816 6:22
949 7:22
950 97:22
9813:25 15:7
9921:21 48:12 87:1
87:3,22 100:1,17
998-5505 6:24
Page 118
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
FRANK CODA, VOL.2, 08.25.00
BU. _ _1NGTON V. HUNTINGTON CENTER
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ORANGE
3
4
5 BURLINGTON COAT FACTORY WAREHOUSE)
OF HUNTINGTON BEACH, INC., a )
6 California Corporation, )
7 Plaintiff, )
8 vs. ) Case No. OOCCO6309
9 HUNTINGTON CENTER ASSOCIATES, a ) Volume II
Delaware Limited Liability ) (Pages 175-280)
10 Company; EZRALOW RETAIL )
PROPERTIES, a Delaware Limited )
11 Liability Company; THE EZRALOW )
COMPANY, a Delaware Limited )
12 Liability Company and DOES 1 )
through 10, inclusive, )
13 )
Defendants. )
14 )
15
16
17
18
19
20
21 DEPOSITION OF:
22 FRANK CODA
23
Friday, August 25, 2006, 10:25 a.m.
24
25
175
t APPEARANCES OF COUNSEL:
2
3 FOR PLAINTIFF:
4 TUCHMAN 8t ASSOCIATES
By: LOREN N. COHEN
5 Attorney at Law
3435 Wilshire Boulevard, 30th Floor
6 Los Angeles, California 90010
(213)385-8000
7.
FOR DEFENDANT:
8
HOLLAND 8t: KNIGHT LLP
9 By: ALAN J. WATSON
Attorney at Law
10 633 West Fifth Street, 21st Floor
Los Angeles, California 90071-2040
11 (213)896-2400
12
13
14
15
16
17
18
19
20 _
23' l
24r s E p `Z 1 2000 ,
Z5
I SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
I N D E X
2 FOR THE COUNTY OF ORANGE
2
EXAMINATION
PAGE
3
3
By Mr. Cohen -------------------------
183
4
4
BURLINGTON COAT FACTORY WAREHOUSE)
5
5 OF HUNTINGTON BEACH, INC., a )
6
E X H I B I T S
California Corporation, )
7
Page
6 )
Plaintiff, )
8
Plaintiff's Description Marked
7 )
9
L60
Existing conditions site plan
190
VS. ) Case No. OOCCO6309
(Retained by deponent)
8 )
HUNTINGTON CENTER ASSOCIATES, a ) Volume 11
10
11
161
Existing conditions site plan
used to prepare Exhibit 160
191
9 Delaware Limited Liability ) (Pages 175-280)
12
162
Conceptual site plan with no
192
Company; EZRALOW RETAIL )
Burlington Coat and Montgomery
IO PROPERTIES, a Delaware Limited )
13
Ward
Liability Company; THE EZRALOW )
14
163
Conceptual site plan with
194
11 COMPANY, a Delaware Limited )
Burlington Coat and Montgomery
Liability Company and DOES 1 )
15
Ward
12 through 10, inclusive, )
16
164
Conceptual site plan putting
198
theater on east side of center
13 Defendants. ) —
17
165
Conceptual site plan eliminating
201
14
18
Burlington Coat
15
19
166
Conceptual site plan putting
202
16
theater over Burlington
17
20
18 Deposition of FRANK CODA, Volume 11, taken on
167
Conceptual site plan eliminating
203
19 behalf of the Plainta BURLINGTON COAT FACTORY WAREHOUSE
21
Burlington Coat
20 OF HUNTINGTON BEACH, INC., before Cathy A. Wood, Registered
22
168
Conceptual Site plan eliminating
204
21 Professional Reporter and Certified Shorthand Reporter No.
Burlington Coat
22 2825, at Greenburg-Farrow, 15101 Redhill Avenue, Second
23
23 Floor, Tustin, California, commencing at 10:25 a.m., on
169
Conceptual site plan plot date
209
24 Friday, August 25, 2000.
25
24
25
170
7/28/99
Refined conceptual site plan
214
176
177
178
1 (Pages 175 to 178)
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
1
I N D E X
3
EXHIBITS
4
5
Page
Plaintiffs Description Marked
6
7
171
Conceptual site plan re Costco
215
8
l72
Conceptual site plan increasing
218
amount of public area
9
U3
Conceptual site plan moving
219
10
Circuit City adjacent to Mervyn's
l 1
174
Conceptual site plan with larger
2-11
public area, 12/2199
12
175
Conceptual site plan with
223
13
breakdown of some of the larger
users into smaller retailers
14
176
Conceptual site plan adding Sean 224
15
177
Conceptual site plan, milestone
224
16
plan but missing theme, 1211199
17
178
Conceptual site plan, milestone
226
plan with Sean
18
179
Alternate site plan l with
226
19
increase square footage of
10,000 feet, 11/16/99
'_0
I80
Alternate site plan 2 12 16/99
227
21
181
Conceptual site plan, one-story
228
22
Sean building, 12/=99
23
182
Master site plan with theater
1-19
over retail users, new concept
24
of streets, 12/27/99
25
l
,
I N D E X
3
EXHIBITS
4
Page
5
Plaintiffs Description Marked
6
183
Master site plan p 0041 with 231
7
different paving pattern, 1/5/00
8
184
Master site plan #0110, view issue 232
from 405, 115100
9
185
Hand -drawn footpring of existing 233
to
-superstructure, 115100
it
186
Conceptual site plan with winding 234
road, 1/5/00
12
187
Conceptual site plan re geometry 236
13
of restaurants and two-story
buildings
14
188
Design sketch plan with focus 240
15
on western side, plot date 2f7/00
16
189
Site plan creating the specific 241
site plan exhibit, 2/17/00
17
190•
Specific site plan A, 3/8/00 242
18
191
Specific site plan 8 with 243
19
Burling Coat, 3/8/00
20
192
Specific site plan with reduced 247
square footage, 322/00
21
193
Conceptual site plan moving theater 248
22
to first level, plot date 7/31/00
23
194
Conceptual site plane with 251
Burlington Coat and theater on
24-
first level, plot date 7/31/00
25
179
180
rzRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
l
2
I N D E X
3
EXHIBITS
4
Page
5 Plaintiffs Description Marked
6
195
Cole's department store plan 251
7
196
Invoices from deponent's company 252
8
'
197
Elevation rendering view of 254
9
eastern street scape, 12/14/99
to 198
Elevation rendering view of Strada 255
Road and Edinger, no date
i l
(Retained by deponent)
12 199
Elevation rendering view of 405 256
comer
13
(Retained by deponent)
14 200
Elevation rendering view of 257
southeast comer
15
(Retained by deponent'
16 201
Front elevation rendering for 258
Great Indoors
17
(Retained by deponent)
18 202
Elevation rendering view from 258
Edinger Street of Village Strada
19
(Retained by deponent)
20 203
Elevation renderings from 261
September -October time period
21
(Retained by deponent)
22 204
Elevation rendering with bridges 262
(Retained by deponent)
23
205
Perspective rendering with 264
24
turnaround road
(Retained by deponent)
25
I I N D E X
2
3 EXHIBITS
4
Page
5 Plaintiffs Description Marked
6
206 Elevation rendering of building 265
7 facade
(Retained by deponent)
8
207 Color and material board of 266
9 common area
(Retained by deponent)
10
208 Board with paint color sample 267
11 chips
(Retained by deponent)
Elevation south and east renderings 269
from December time period
(Retained by deponent)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
rKRA
INFORMATION REQUESTED
(None)
181
182
2 (Pages 179 to 182)
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS .
A Veritext Company- 800.649.8787
,' FRANK CODA, VOL.2, 08.25.00
BU►.__lNGTON V. HUNTINGTON CENTER
1
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Friday, August 25, 2000, 10:25 a.m
Tustin, California
FRANK CODA,
was called as a witness by and on behalf of the
Plaintiff, and having been first duly swom by
the Certified Shorthand Reporter, was examined and
testified as follows:
EXAMINATION
BY MR. COHEN:
Q Can you state and spell your name for the record.,
A My name is Frank Coda, that's C-o-d-a.
Q Okay. And this is the second session of your
deposition and the first session was on July 27, 2000. Do
you remember the admonitions that I gave you to tell the
truth and nothing but the truth?
A Yes, I do.
Q So all --
A I was gonna say, what's admonitions.
Q All the admonitions I told you before, they apply
in this session. That's acceptable to you?
A That's acceptable to me.
Q Okay. I got a quick question for you.
183
A Surely.
Q Now that Edwards Cinema has filed bankruptcy,
what's -- how is that affecting the developing?
A I don't know. I mean I don't know. I just heard
about -- I think we all heard about it yesterday or day
before. So — I guess what I heard on the radio, which is
public, is they are planning to — they're planning to
still keep the more profitable ones in business and close
all the smaller ones. So I presume they would still pursue
this site, although I don't know how they do that under
bankruptcy. That's not my expertise. But certainly —
regardless who goes here, it's gonna be a very good
location for a theater use.
Q Have there been other theater companies?
A Yeah, we -- Ezralow has talked to other theater
companies
Q- Who are they? —
A- I was aware they talked to Sony, and they had --
they had mentioned to me they talked to some others, but
they didn't reveal who. the people were. But there's
certainly other theater guys out there.
Q At this time you don't know how the bankruptcy
for Edwards is gonna affect the development?
A No, I do not
Q Was Edwards given any specific design
184
1 qualifications or specifications?
2. A What do you mesa!?
3 Q Were they — have there been discussions that
4 Edwards wanted ten, you know —
5 A Oh, how many like theaters?
6 Q Yes, exactly.
7 A Well, actually it works the other way. They say
8 we think we should be able to do this many units in this
9 location. So actually they gave as what they thought.
10 Q - That's right. So Edwards tells you their
11 specifications?
12 A Right-
13 Q And that was the only theater company to date
14 that has given — that you know of that is giving
15 specifications?
16 A To our— yeah, I suspect when they were talking
17 to the other theater companies, Ezralow would have —
18 that's usually the — the main issue, I mesa how many
19 screens you're gonna do, I guess, is the lingo. 'Cause 1
20 would say that has an impact on a lot of issues of how big
21 the facility is and bow much parking you need and all that.
22 So the number of screens would be key to anyone
23 that was — on either side, the theater company would want
24 to have an idea how many screens they want to do 'cause
25 that's how they run their proforma, and the developer would
185
t want to know how many screens are planned so they can plan
2 accordingly.
3 Q Has Ezralow informed you of any specifications
4 for how many screens for this project?
5 A We have met with Edward's architect In fact, we
6 met with him occasionally over the past three or roar
7 months, and I think the lightest I heard, and it changes,
8 you know, they're — that's not a science either. And so I
9 thought we were is the 18 range currently, 18 screens.
10 Q The present status, has any demolition permits
11 been pulled yet?
12 A No, oot that — no.
13 Q Than —
14 A Not that I know o4 but I doubt they had.
15 Q Do you know if any specific contractors have been
16 hired?
17 A We have — again, I mentioned before, we have
18 been working within certain contractors that I had
19 mentioned before.
20 Q That would be the Dinovitzes?
21 A Well, no, they're not contractors. They're a
22 construction management — uh, I don't — was it — I could
23 look that ups but there has been a couple of contractors we
24 interviewed, and we've been talking about to —'cause we
25 want to bring in a contractor daring the development of all
186
3 (Pages 183 to 186)
7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
I the plan so that we — we get the best price, you know,
2 value, and it's best to have a contractor that you work
3 with.
4 Q That's right And from the time -- from July
5 17th, the time of our last deposition till today, has there
6 been any further developments in regard to retaining or
7 hiring contractors?
8 A Not that I'm aware of. I think we're still
9 dealing with the city process, as far as I know.
10 Q And as far as you know, where are you -- where is
11 Ezralow at in regards to the city process?
12 A I believe we are — let's see. The — what was
13 the one document we kept looking at? The — I'm sorry.
14 Q The specific claim?
15 A Right. I think that's as far as we've gotten. I
16 don't think anything has progressed in the city process
17 since the last time. So this specific plan, which 1
18 believe we all determined had actually been approved by the
19 city? Was that correct?
20 Q I believe so.
21 A That's what I thought — yes.
22 Q Do you know if any funds have been deposited with
23 the city from Ezralow?
24 A I don't. I don't know.
25 Q And have any plans been finalized?
187
l A No.
2 Q Has there been any further work regarding plans,
3 designing -- design plans from the time of the deposition
4 till today?
5 A Like I said before, we continued to monkey around
6 with various pieces, various users as they come into play.
7 But that's been the same thing from day one. So I guess
8 yes, but was it impacting any major site plan design, no..
9 I mean this is minor adjustments. Like I say, we have
10 another user, they want to get in this area, okay. So we
11 go and study a little section of it and say okay, what do
12 you think about this and that.
13 Q Has there been a decision yet regarding whether
14 the site plan that includes Burlington will be the site
15 plan chosen?
16 A No. I don't know any — any decision on any site
17 plan at this point.
18 Q Have you been working with anyone from the city
19 from the time of July 27 till today? Have you been working
20 with anyone from the city regarding the site plans and how
21 it should look?
22 A No. I mean basically, I think we are — we have
23 the specific plan approved, and now we have to finalize the
24 site, what it is, what are we gonna do. Because that's a
25 guideline, the specific plan is a guideline, and now it's
188
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
1 in our court to figure out what we want to do. And then we
2 go back to the city and make application for final permits,
3 if you will.
4 So at this point we're still doing all that, and
5 obviously in light of this action, there's — you're not
6 gonna — it would be unwise for anyone to finalize anything
7 until this is resolved, so —
8 Q How many meetings have you had with any Ezralow
9 personnel from July 27th till today?
10 A Me personally, none.
11 Q Anyone from GFA?
12 A Our staff— yeah. we usually meet with them once
13 a week or once every other week. Again, we have multiple
14 projects with them, so we have kind of an every other week
15 or every week meeting. We cover all projects.
16 Q And has the Huntington Center been covered, the
17 mall in Huntington Beach?
18 A To the extent that users have expressed interest
19 to Ezralow, that's what they've had as kinds look at in
20 detailed planning sort of way.
21 Q Okay. I'd like to — we have a whole stack of
22 site plans, and I'd like to take a look at them. And we're
23 going to mark them as exhibits, and I think what will
24 happen then is you ll then copy them for us. You give
25 us the invoice of your costs, and then we will pay those
189
1 costs. And the copies will then be given to the court
2 reporter, and she will prepare it
3 A Okay.
4 Q Is that okay?
5 A Sure. These are — right now they are not in any
6 kind of order. Do you want to try and — put them in
7 order.
8 MR. COHEN: Let's go off the record.
9 (Brief recess was taken.)
10 MR. COHEN: Let's go back on the record. Well mark
11 for identification as Exhibit 160, I believe, Mr. Coda, can
12 you give a description of Exhibit 160.
13 (Whereupon the above -referred to
14 document was marked Plaintiffs
15 Exhibit 160 for identification by
16 the Court Reporter, and retained
17 by deponent.)
18 THE WITNESS: Exhibit 160 is an existing conditions
19 site plan that we have put into our computer system since
20 it's been plotted out So this is the existing conditions.
21 We took this actually from -- I think I saw the -- the one
22 that we did not create. I want to always, as we go through
23 this, take out duplicates so that we don't -- so we can
24 kind of put them to the side.
25 Thought I had seen another one. There may be
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another one. I thought there is. But, anyway, this is
what we acquired — was given to us by our client at the
start of the project -- actually not quite at the start of
the project — after we started talking about it which was
an existing site plan from the Macerich Company,
M-a-c-e-r-i-c-h.
BY MR. COHEN:
Q And so that's the same as 160, and well mark for
identification as 161 --
A What was given -- this was the actual document
given to us.
Q Was 160 what GFA created from --
A 161.
Q -- 161?
A That would be correct
Q And this is the,way the center looks today?
A That is correct.
Q Okay. Now, let's move on.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 161 for identification by
the Court Reporter, a copy of
which is attached hereto.)
MR. COHEN: Let's go off the record.
(Off-the-record discussion was held.)
191
MR. COHF24: Let's go back on the record.
THE WITNESS: Some of this is going to be talking
about plan to see if we want to make an exhibit; correct?
MR. COHEN: Yeah. Exactly. Okay.
THE WITNESS: I know it's kinda weird, but it's the
only way I know how to do this.
MR. COHEN: Yeah, let's go off the record.
(Off-the-record discussion was held.)
MR. COHEN: Well mark as -- let's go back on the
record.
BY MR. COHEN:
Q And I just, have a quick question. Exhibits 161
and 160, do you know when you were given these,
approximately, or GFA was given these?
A It would have been in June, July, August -- last
summer sometime-
Q Okay. Of '99?
A RighL.
MR. COHEN: Okay. Well mark for identification as
Exhibit 163
MR. WATSON: 162.
MR. COHEN: 162.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 162 for identification
192
1 by the Court Reporter, a copy of
2 which is attached hereto.)
3 BY MR. COHEN:
4 Q Mr. Coda, what is 162?
5 A 162 is a conceptual site plan that we produced.
6 It was our first shot at reusing — maybe not the first
7 shot. I shouldn't say that, 'cause I'm not exactly sure of
8 the order. We were studying a bunch of stuff. But early
9 on, let's put it that way, of what we could do with the
10 center, the existing center.
11 Q Was this after the purchase -- Ezralow's purchase
12 of the center?
13 A No, way prior to.
14 Q This was prior to the purchase?
15 A Yeah, June, July, last summer sometime.
16 Q So prior to Ezralow's purchase, they were working
17 with GFA to determine how to redevelop the mall; is that
18 correct?
19 A That's correct. That's standard in the industry.
20 Q Okay. In 162, is Burlington depicted?
21 A No.
22 Q The existing Burlington —
23 A No. Burlington is not depicted and nor is
24 Montgomery Wards.
25 Q So the Burlington — the existing Burlington
193
1 space would have been razed in this Exhibit 162?
2 A Well, we were razing the whole — this whole mall
3 was razed.
4 Q I see.
5 A From day one, like I told you last time, we
6 didn't see any an in the whole — of trying to reuse the
7 center.
8 Q I see. Okay. Let's move on to the next one.
9 A We have a series of plans during the early
10 stage& You can see we used a background and -- of the
11 existing and just kinda went over it. That's why I was
12 showing you the one that had the whited -out portion.
13 Q That's right.
14 MR. COHEN: Well mark as Exhibit 163 a conceptual
15 plan of Huntington Beach Center.
16 (Whereupon the above -referred to
17 . document was marked Plaintiffs
18 Exhibit 163 for identification by
19 the Court Reporter, a copy of
20 which is attached hereto.)
21 BY MR. COHEN:
22 Q Mr. Coda, give a description of 163, if you can.
23 A This is a plan, again, we were starting to play
24 with what — what would make sense for the center. In this
25 case, we were leaving the Montgomery Wards and the
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1 Bariiegtori Coat and seeing what kind of open space. Again. 1
2 back to the original concept, we always thought we wanted 2
3 to create something unique, something that was an outdoor 3
4 experience. And so we were — we felt the public spaces,
4
5 the outdoor public spaces would be key to making a
5
6 successful center in that regards.
6
7 So in this case, we looked at leaving Montgomery
7
8 Wards and Burlington. We added a theater between the two.
8
9 And as you can see, the space -- left over space is kinda
9
10 blab.
10
1 I Q 163, when was this created?
11
12 A This would have been created, again, same time as
12
13 162. I think actually what's going to happen, as we see
13
14 the next coming plans, we were studying a bunch of
14
15 concepts. And we came to conclusion that 162 started to
15
16 give us a much better public space.
16
17 Q I see.
17
18 A So probably in timing, 163 was a study before 162.
18
19 Q 163 predates 162?
19
20 A Right. 'Cause these are kinds studies on, okay,
20
21 what can you do with leaving Montgomery, Mervyn's,
21
22 Burlington and still we knew there was a theater component
22
23 because of the — just needed a theater component. And
23
24 then what residual did you have to develop a center from.
24
25 Q And 162 and 163 then were both prior to the
25
195
1
purchase, Ezralow's purchase of the center?
1
2
. _ A I would — just so you know, I'd say the next—
2
3
-I don't believe they purchased until December, if I
3
4
remember correctly.
4
5
Q Okay.
5
6
A So we've got a good chunk before we purchased.
6
7
Q Okay. And the purchase -- you believe that the
7
8
purchase date was — so when we say prior to purchase, you
8
9
believe that's before December '99; is that correct?
9
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A Yeah. I'm not sure of the actual closing date,
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11
but I know it was somewhere in the fall or winter of —
11
12
winter of'99.
12
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Q Okay. Very good
13
14
Now, 163, you said that — which includes
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15
Burlington, can you sort of describe further the
15
16
difficulty — the problems that —
16
17
A This presented.
17
18
Q- — this 163 had? ..
18
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A Well, for one, the location of Burlington
19
20
building itself is — does not give us -- we wanted an
20
21
interior courtyard or what have you -- something inside
21
22
because we wanted to block out all the surrounding traffic.
22
23
I mean you wanted to -- the ides is you hinds go into an
23
24
oasis away from the hectic traffic and the freeway.
24
25
The location of the building is fairly close to
25
196
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
the main drive across the Edinger side of the project and
didn't leave a lot of room to get descent sized buildings
and as well as leave a courtyard or something that was
nice.
So that location, Burlington Coat building
location limited the ability to produce what we were after
the concept of an oasis with good retailers and stuff like
that. The other thing is the existing building has a
loading facility, again, facing Center Avenue. And, again.
we've always envisioned this as we discussed last time as a
three -sided site. And so you — you want the -- the look
from the — from all the streets to -- to be a nice look.
To be enticing, if you will.
Q Okay. The — there's two plans that are made
part of the specific plan 13.
A That's correct.
Q And I have it here. One of the site plans
includes the Burlington structure.
In the plan that includes the Burlington
structure that's made a part of SP-123, had the problems
that you've talked about, have those been taken care of or
do they still exist?
A No, they still exist. This Exhibit 5A — 5A,
level 2, this is level 2, but it does show without the
Burlington, whereas Exhibit 5B of specific plan shows the
197
Burlington budding still there. And, as you can see, the
courtyard is — is not nearly as — as well defined, as
nice. We were able to get a much -- a much nicer central
irea than this, in that case.
Now, as you can see, we were able to develop a
little bit further some of the buildings along the front
here, but by — you know what we did do is we didn't
have -- we move, in this case, in Exhibit 163, we were
inserting the theater between Montgomery Wards and
Burlington which was problematic. So the solution in
Exhibit 5B
Q To use SP-13?
A To SP-13. We had moved the theater to the second
level, which is what the concept had been prior to even
looking at a Burlington Coat scenario.
Q So that would have give a little more space --
A Correct
Q -- than what was available at 163?
A Correct
Q Okay.
A Next?
MR. COIN: Next. Well mark as Exhibit 164.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 164 for identification by
198
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NGTON V. HUNTINGTON CENTER
1 the Court Reporter, a copy of
1
2 which is attached hereto.)
2
3 BY MR. COHEN:
3
4 Q Mr. Coda, if you can give a description of 164.
4
5 A 164 is a site plan, all conceptual in nature, in
5
6 which we looked at moving — because of those issues we had
6
7 talked about the theater between Montgomery Wards and
7
8 Burlington, we moved the theater to the other end to see if
8
9 that would help resolve the problem.
9
10 There was a little bit of improvement, however,
10
11 if you know the site, the visibility from the freeway is —
11
12 is kind of key to the success -- it's key to a successful
12
13 center as well.
13
14 And by putting a large theater complex, second —
14
15 and they were -- again, they were talking about a second
15
16 level and a first level for shops to get the retail — the
16
17 square rootage up, this tended to be a large mass at —
17
18 blocking the view from the 405.
18
19 So while on the plan it might have helped solve
19
20 some of our plaza issues, by patting the theater at the
20
21 other end, it definitely impacted the view potential from
21
22 the 405 which we feel is an important -- this — the view
22
23 from the 405 should be one that draws one into the center
23
24 as well.
24
25 And in the final plan we developed, we had left
25
199
1
this open so that people could see that there's activity
1
2
inside and, again, a way to draw people into the — into
2
3
the center.
3
4
Q I see. So Exhibit 1— to recap, if 1
4
5
understand, Exhibit 164, it puts the theater complex on
5
6
the --
6
7
A East.
7
8
Q --east side of the center. It includes
8
9
Burlington. So this was a possibility to, one, have one of
9
10
the goals of having large common areas?
t0
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A Areas.
11
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Q Free space, but I guess you were saying that one
12
13
of the difficult — the drawbacks of it was that it reduced
13
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your visibility from the 405 because the theater complex
14
15
would have been a more massive structure?
15
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A That is correct.
16
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Q Okay. Let's move on.
17
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A Let's see. This might be a duplicate. It
18
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appears to be that. This looks like the original, and this
19
20
looks like a copy (indicating).
20
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MR. COHEN: Okay. Let's go off the record for a
21
22
second.
22
23
(Off-the-record discussion was held.)
23
24
MR. COHEN: We're back on the record. Let's move on
24
25
to the next exhibit which, well mark as Exhibit 165.
25
200
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 165 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
Q Give a description of 165, if you can.
A 165 is a plan where we had eliminated the
Burlington Coat building and put the theater complex right
in its place, basically, and trying to accomplish our goals
of getting the view In and having the theater -- theater
building -- since it will be so massive, to anchor the view
and started to create the courtyards that we were
envisioning to begin with.
You'll see, we still had something between -- a
building between the tbeaar building and Montgomery Wards.
and we weren't sure what to do with that. There was at
some point in time, we thought maybe some more retail. But
this would be a very difficult space to lease.
so —
Q Right. So basically 16 --
A 5.
Q 5, this scheme or plan has been rejected; is that
correct?
A Right.
201
Q Okay. Move on.
A But, again, it was another concept.
Okay —
MR. COHEN: Well mark as Exhibit 166.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 166 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
Q Give a description of that.
A 166, this was a — another concept we were
looking at in which we were keeping some of the existing
buildings, Montgomery Wards and Burlington Coat, and we
looked at putting the theater building over them. I should
say not over the Burlington Coat, you see the dash line
around it, but we looked at trying to get a theater
building over that.
Again, the intent is to the view and the massing.
It did allow as to start to look at, again, the plaza level
on the visible side and get some additional retail
underneath the theater building on the Edinger side of the
site and perhaps another retailer between the Burlington
Coat and the Mervyn -- existing Mervyn's building. We were
planning to have truck access underneath for all the users.
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1 Part of the problem with this plan is the
1
2 geometry of the theater was not — theaters have a hard
2
3 time with an L-shaped footprint, because the existing
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4 Burlington Coat building is that three-story building that
4
5 we talked about. We couldn't build over it, and it also
5
6 was blocking a view if we wanted — this would look as one
6
7 mass. And we could reface it, but it was an internal
7
8 problem for the theaters to take on that L-shaped
8
9 configuration.
9
l0 Q I see.
10
11 A So, again, another sketch that we look at, 'cause
11
12 when you go through design, you try and not — you try and
12
13 do, okay, what are all the opportunities, what are the
13
14 possibilities. And that's what all this — all these
14
15 earlier. exhibits are.
15
16 Q 1 see.
16
17 A So there's another variation.
17
18 Q And 166 was rejected?
18
19 A That's correct.
19
20 Q Okay.
20
21 A Next one?
21
22 MR. COHEN: Well mark as -- for identification as 167.
22
23 (Whereupon the above -referred to
23
24 document was marked Plaintiffs
24
25 Exhibit 167 for identification by
25
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1
the Court Reporter, a copy of
1
2
which is attached hereto.)
2
3
BY MR. COHEN:
3
4
Q What is this?
4
5
A 167 is yet again another conceptual site plan.
5
6
We were taking some of the concepts and thoughts we had on
6
7
the past ones and trying to reflne them.
7
8
In this one, we did eliminate the Burlington Coat
8
9
building, and the theater is over some retail in a location
9
10
we felt that would start to work for our view issue and
10
11
creating our plaza areas. And so this was starting to —
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12
this was the beginning of getting towards what we felt was
12
13
a good solution for the development of the site.
13
14
Q Does this include the Montgomery Wards structure?
14
15
A This one does: —
15
16
Q Okay. Move on.
16
17
MR. COHEN: Off the record.
17
18
(Off-the-record discussion was held.)
18
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MR. COHEN: Well mark for identification Exhibit 168.
19
20
(Whereupon the above -referred to
20
21
document was marked Plaintiffs
21
22
Exhibit 168 for identification by
22
23
the Court Reporter, a copy of
23
24
which is attached hereto.)
24
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BY MR. COHEN:
25
204
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BURLINGTON V. HUNTINGTON CENTER
Q Can you give a description of this?
A 168 is a — basically a more refined version of
167. Like I said, we thought we were on track with plan
167 — with Exhibit 167. And so we now went ahead and put
this in our computer system, and we started to develop more
detail.
You will see our — our public space started to
add fountains and a pool and art, a major staircase leading
up to the theater complex. At the time we also had been
contemplating two-story — separate two-story users around
the courtyard.
So as you can see in the second floor plan
section of this exhibit, we have the theater which -- and
then some retailers with balconies that went all the way
around and went to a freestanding building that was on the
east end of the center.
So we started to develop — this was where we
really felt we wanted to be with our outdoor area.
Q Where was this second floor plan that's on the
left side of the page, where would it sit?
A You can see these lines come to here, so this
would be the back side of the theater (indicating). It
would sit right over this box and then —
Q So basically it would sit over the area that is
a retail 37,250 square feet?
205
A Yes. We were putting the theater over largest
users to try and hide them: Generally largest users don't
have windows. They're not really exciting. Whereas some
of the smaller tenants you get to windows.
Again, having a feeling of a village, something
nice, something you can feel good about. This is the plan
we started to present to Ezralow.
Q I see.
A I guess maybe all the previous plans were
internal. We were doing our own license to be — creative
license to do that. None of those felt good. This is the
plan we submitted to Ezralow. I think this is where we
went ahead.
Q I see. So 168 was one of the first plans or was
it the first plan that you presented to Ezralow?
A It might have been. I won't — it will be right
in there with like — this is what we think — this is what
we recommend you do with this project.
Q I see. When Ezralow gave you this commission,
retained you, they said -- did they give you carte blanche?
A Yes.
Q To raze whatever you wanted?
A They said no — no rules. Please — we want
something unique and dynamic and special. So don't be
limited by what exists.
206.
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BUA_. 'NGTON V. HUNTINGTON CENTER
I
Q I see. They didn'ttell you about any — did
1
2
they give you any instructions that certain existing
2
3
retailers need to be included?
3
4
A Not at this —not in that summer of last year.
4
5
Again, it was, you know, what can you do.
5
6
Q I see. Prior to purchase, prior to December'99?
6
7
A Prior — right.
7
8
Q Correct.
8
9
A Just we — they — they said they were looking at
9
IO
this piece of property. I remember Doug Gray called me,
t0
11
said do you know the mail 405, Huntington Beach. I said
11
12
yeah, I was happy just to bear somebody was doing something
12
13
with it. So he said we're probably gonna take a run at it..
13
14
I'll send over some information. Why don't you guys see
14
15
what you can do to make it something special,
15
16
So, like I said, this is where we ended up after
16
17
our studies of all those — those Exhibits 160 what — 162
17
18
through 167 is our internal study looking at stuff what's
18
19
going on, how can we use, not use, blab. blah, blah. And
19
20
we landed on this is probably something that makes some
20
21
sense.
21
22
Q Do you know when, approximately, the time -- the
22
23
date that you presented this to Ezralow?
23
24
A I would be thinking it's in that June -July time.
24
25
I think we have some plans coming up that we saw some dates
25
207
1
on. But this might even be in May. It's in that — we
1
2
probably took about, if I recall, we did the Exhibits 1
2
3
through —163 through 167 probably in about two or three
3
4
weeks after the call. After we got the information.
4
5
Q Uh-huh.
5
6
A So, you know, we did two or three weeks of
6
7
studying, and then we — you can actually — you know, you
7
8
can see this — we put — we dolled it up with the trees,
8
9
and, you know, it's kind of more of a presentation thing.
9
10
so—
10
11
Q And who was there at the presentation?
I1
12
A It would have been Doug, Doug Gray and myself
12
13
were going over the staff
13
14
Q Was Scott Dinovitz there?
14
15
A No.
15
16
Q Did you ever — is there a retainer agreement
16
17
between GFA and Ezralow? —
17
18
A No..
18
19
Q There's no written retainer agreement?
19
20
A No. No, we — this is — this project is — this
20
21
will be our third project with them, and at that point in
21
22
time, they were good paying client. We didn't see any need
22
23
for a retainer..
23
24
Q So how do you bill? Just monthly?
24
25
A Monthly on an hourly basis.
25
208
Q And the bills are sent to --
A We would send a copy — we would send the bill to
two people, one to Doug Gray and one to Christina Hughes.
Q Do you have — do you have invoices?
A Sane.
Q Those weren't presented to us, though, is that --
A No, I don't think — I didn't think they were
relative. All it says is who — what position and how many
hours and their hourly rate.
Q Does it give other descriptions of the work that
was done?
A Yes, but in — I mean I'm not afraid to show it
to you, just says "Conceptual Site Plan," I mean very
broad.
Q I would like to take a look at the invoices.
A Sure.
Q I think it's relevant for us.
Okay. Let's move on, though.
A Okay.
MR. COHEN: Well mark for identification as
Exhibit — where are we, 169, another site plan.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 169 for identification by
the Court Reporter, a copy of
209
which is attached hereto)
BY MR. COHEN:
Q Mr. Coda, if you can tell us what this is.
A 169. And, actually, if you look on the corner
there, we start to see a date. So that plot date is July
28th of'". Is that what it says there?
Q Yes.
A So that's gonna give you a feel for all this
prior work would have been close — prior to that or close
to.
This — this particular Exhibit 169 is similar to
168 is — in plan. It looks like they were looking at
adding a pad building along Edinger. You can see on 168 we
have a 5,000 square foot restaurant right along Edinger,
whereas in 169 we have a -- as unidentified square footage
but a different footprint in that same location. So we
were looking at that.
And perhaps, you know, perhaps it was actually
reversed In time, 'cause I think this was a footprint of a
building that used to exist
Q It no longer exists?
A No, it no longer exists, but I think we found it
on one of our — is it on the — right. You can see it
back on 161. You can vaguely see that dashed -in building.
So more than likely 169 was a base that we used to produce
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1
168.
1
2
Q Okay.
2
3
A So that gives you sometime of 168 somewhere
3
4
around the end of July. We were coming to a conclusion on
4
5
what we believe is the best reuse of the center and
5
6
presenting that. So that's what 169 is. This is probably
6
7
the base plan, if you would, for that.
7
8
Q And 169 does not include the Burlington space,
8
9
does it?
9
10
A No, it does not. Again, we came to the
10
i 1
conclusion that when the Burlington building is just in a
11
12
bad location and is too massive and it didn't accomplish
12
13
what we had envisioned, so away it went.
13
14
Q Away it went. When you say "we," who is —
14
15
A That's GFA.
15
16
Q GFA?
16
17
A Again, we were studying the site with those
17
18
early -on exhibits, and nothing — we didn't feel we could
18
19
get anything that we felt good about. So we were
19
20
recommending to our client to do the 168 plan.
20
21
Q I see. Which excludes —
21
22
A Excludes the Burlington.
22
23
Q -- Burlington space?
23
24
A Correct.
24
25
Q What were the comments of Doug Gray at the time?
25
211
L A He said that it was okay. It wasn't exactly the
2 wow that he was looking for. And so, you know, kinds sent
3 us back a little bit to the drawing board.
4 But some of the concepts he did like. For
5 instance, the — putting the theater over the larger users,
6 creating a — I'm going to refer back to 168, that has more
7 of the detail, creating a nice open area that had some
8 fountains and features that you can envision people sitting
9 at tables and eating and, you know, doing their little
10 social thing. Yet, still having a draw for the retail and
11 the restaurant.
12 And so there was some things they liked about it,
13 but it wasn't — be was looking for something special,
14 something unique in the marketplace.
15 And like we talked about last time, we had looked
16 at Spectrum and The Block at Orange and Fashion Island, and
17 we knew we didn't want to repeat those, but needed a unique
L8 identifier. And to some degree we agreed. This wasn't
19 different in that respect. I mean and so we continued on
20 with okay. But, in general, we got — we got an indication
21 that we're heading in the right direction.
22 Q 1 see. In regard to the Burlington space -- that
23 it was gonna be razed, that it was no longer gonna be
24- there, did Mr. Gray or anyone from Ezralow make any comment
25 on that?
212
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
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18
19
20
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FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
A No, no. He asked why — perhaps why we decided
to eliminate that and not the Mervyn's or Montgomery Wards.
And we felt those two buildings were — first off, we felt
Montgomery Wards was on the — what I'll call the far side
of the center. It is on the west side, and it has its tire
and battery installation, and that's kind of its own use.
And why not just leave that in place.
So we made a separation between the west side of
the center and the east side. We talked about Burlington.
But, again, as I mentioned in the past, we felt the massing
of it, and the location of it was just —just — it
hindered the design solution.
Q Right. But what were Doug Gray's specific
comments on that or any Ezralow personnel?
A He just said okay. He was still more focused on
cresting a unique identifier. Because, again, he gave us
direction to have carte blanche. If anything, it was why
did you keep those. I said you could get rid of everything
if you wanted to, so some systems we do try to play
practical bat.
Q At the time of creation of this, Was any concern
being given to pricing and retailing —
A No.
Q -- factors regarding Mervyn's and whatnot or pure
architectural?
213
A Pure architectural, pure creation of something
unique. AH those other factors at this point were
immaterial
Q Okay. Let's move on. Next.
MR. WATSON: You want to go off record.
(Off-the-record discussion was held.)
MR. COHEN: Okay. We're back on the record.
Well mark as Exhibit 170 a site plan.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 170 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. CORN:
Q And what exactly is this?
A This — this is starting to get down into
developing more detail, you know, the second story we've
gotten — we're looking at the balconies. Before — didn't
we look at that before?
Q Yeah, we did in 168.
A So this is continuing to refine 168 as far as,
one, getting — it probably could be as simple as that 168
was all on a big page. And so can we move it down here. I
mean we'll do that, too. Reformat it jttst so it's more
presentable.
214 -1
10 (Pages 211 to 214)
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A Veritext Company- 800.649.8787
LANK CODA, VOL.2, 08.25.00
BURLI . , 'ON V. HUNTINGTON CENTER
1 I think in concept this is the same as 168, just,
1
2 like I say, maybe a little different format for
2
3 presentation. We've added a title block. We moved the
3
4 second story plan to below. The main site plan — doesn't
4
5 seem like there's much difference beyond that.
5
6 MR. CORN: Okay. Mark as Exhibit 1.71 another site
6
7 plan.
7
8 (Whereupon the above -referred to
8
9 document was marked Plaintiffs
9
10 Exhibit 171 for identification by
10
11 the Court Reporter, a copy of
11
12 which is attached hereto.)
12
13 BY MR. COHEN:
13
14 Q Give us a brief description to identify this,
14
15 171.
15
16 A 171 is, in essence the same as 168, or I should
16
17 say 170. However, we had a request from our client to
17
18 locate a Costco wholesale club on the site in the location
18
19 of -- on the west portion of the project
19
20 Q That was gonna take up the Mervyn's area?
20
21 A No. Mervyn's was still —
21
22 Q Excuse me, the Montgomery Wards?
22
23 A Montgomery was taken — the Montgomery and their
23
24 tire and battery outlet needed to grr to meet Costco's
24
25 parking. So we did this plan — we didn't — we advised we
25
215
1
don't think it's a good mix for the center. But, again,
1
2
this is put it on there and see what it looks like. So
2
3
this is the result of that
3
4
Q And do you know where Costco stands in the
4
5
' development of the mall?
5
6
A No, I don't, no.
6
7
Q Okay. When these — from 160 to 171 -- Exhibits
7
8
160 to 171, was the city giving any input?
8
9
A No.
9
10
Q In what design plans?
10
1 1
A No.
11
12
Q Or what they wanted to see?
12
13
A This is all — up until now it's still all
13
14
internal. Internal to the development, I should say.
14
15
Q When you say "up until now," "now" being today or
15
16
"now" up until the time that these — --
16
17
A No, I meant — sorry, wrong word, not "now." Up
17
18
until the starting of the specific plan document, city had
18
19
not been Involved, which was somewhere -- don't quote me on
19
20
it — well, you can quote me.
20
21
Q She can quote you.
21
22
A Somewhere in the neighborhood of maybe February,
22
23
March, somewhere in there. January, February or March we
23
24
started to work on the specific plan. And that's when
24
25
we -- actually, not us, this is Scott Dinovitz, his role
25
216
was dealing with the city.
Q Okay. Let's move on.
MR. COHEN: I'd like to mark for identification as
Exhibit 172 -- let's go off the record for a second.
(Off-the-record discussion was held.)
MR. COHEN: Let's go on the record for a second.
We just — there's some duplicates in here, and
there was one with a different plot date, and we're not
going to mark it as an exhibit, but this plot date is
October '99.
Q Is that — is this October'99, it's identical to
Exhibit 171, which has a plot date of February 25, 2000; is
that correct?
A That's correct
Q Just so we have it on the record, what is a plot
date?
A A plot date is a date of the actual — the actual
date that the drawing is plotted out of the computer. It's
not the creation of the drawing. That's a different date
which is as, for an example, 171, we have a date of 9/23.
So the actual drawing and creation of the drawing
was 9/23/99. But, as you indicated, we plotted it on
February 25th, 2000, for -some reason. Could have been
somebody grabbed the wrong Me and plotted the wrong one.
I do not know why. Just could be any reason. And thet .
217
duplicate one we talked about, which was plotted on October
21st, the duplicate of Exhibit 171, again, that " that
would be the day the 9/23 drawing was actually plotted out
of the computer.
Q Okay. And the plot dates are in the -- on the
side of the lower left corner, is that correct?
A That's correct
Q And the drawing date, the date that it was
actually —
A Created.
Q -- created, the creation date, that's gonna be in
the lower right-hand comer where underneath the —
A Kinda the title block.
Q The title block?
A Indicates the scale and the kind of the name of
the plan and the project number and all that stuff.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 172 for identification by
the Court Reporter, a copy of
which Is attached hereto.)
BY MR. COHEN:
Q Okay. Well mark for identification as Exhibit
172 -- what is Exhibit 172?
A 172 is a drawing in which very similar to —
218
11 (Pages 215 to 218)
3ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1
well. not so. I take that back.
1
2
It is different in some of the users. I guess at
2
3
this point in time we were — from the last plan of Exhibit
3
4
171, we started to look at increasing the amount of public
4
5
area. As I indicated before, in 171 we had a nice public
5
6
area, but it was not enough.
6
7
So we went back and started to look at extending
7
8
that public area. We — in this scheme you'll see a lot of
8
9
different things. We have a Sears with a theater above in
9
10
the Montgomery Wards position. We have a Montgomery Wards
10
11
between the Mervyn's and this center. And we have a
11
12
Circuit City in the middle of the center. And we also
12
13
started to -- we had had larger retailers on the — what 1
13
14
call the more visible in the eastern end, eastern end of
14
15
the center.
15
16
MR. COHEN: Okay. Let's move on. Let's mark as
16
17
Exhibit 173 another site plan.
17
18
(Whereupon the above -referred to
18
19
document was marked Plaintiffs
19
20
Exhibit 173 for identification by
20
21
the Court Reporter, a copy of
21
22
which is attached hereto.)
22
23
BY MR. COHEN:
23
24
Q Give a description of 173.
24
25
A 173 you'll see we moved the Circuit City to
25
219
adjacent to Mervyn's. Again, we felt that the location on I 1
2 172 of Circuit City was similar to the Burlington Coat
2
3 issue with a building in the middle of something -- in the
3
4 middle of the center that didn't fit so well, in our
4
5 opinion.
5
6 By the way, I think all these users and -- and
6
7 stuff of this nature at this point in time, is being
7
8 directed to add these people to the site by our client.
8
9 Q Okay.
9
10 A So --
10
11 Q So in 172, they — Ezralow — your client
11
12 being --
12
13 A Ezralow.
13
14 Q — Ezralow, directed you to include a Circuit
14
15 City. Did they tell you what location?
15
16 A No. They — you know, in 172, they said let's
16
17 get a Sears and a Circuit City, maybe move Montgomery
17
18 Wards, maybe put the theater over. I mean their directions
18
19 are usually vague. Here's some users, see what you think.
19
20 So 172 we did that and we said, you know, I
20
21 really -- we really don't think you should put that many
21
22 big users in this mix that we are trying to create in this
22
23 orientation or in this fashion.
23
24 So then we go on to 173 where we moved that
24
25 Circuit City. We put them adjacent to Mervyn's, and we
25
220
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
left the Sears in. We left the Montgomery Wards TBA in
with the theater over the Sears
MR. WATSON: Do you want to go off the record?
MR. COHEN: Yeah, let's go off the record.
(Off-the-record discussion was held.)
MR. COHEN: Well mark as — we're back on the record.
Well mark for identification as Exhibit 174
another site plan.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 174 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN: '
Q Mr. Coda, could you give us a quick description
of it and date..
A Sure. This plan is dated on 12/2199, and we
are — were still, at this point in the design, we've
pretty much convinced all ourselves that we do want to have
a lot more of this larger public area. And so this is the
kind of a turning — it was a turning point actually back
at Exhibit 173, which is back in September when we started
to break away from just the public area on the eastern side
to a hull length public area.
Basically what you have going on here is we've —
221
we are indicating the theater is above a retail of 90,000
square feet where the existing Montgomery Wards is. And
we've got some larger users, 25,000 feet or so, we got some
two-story on the eastern end still.
But we did — this is also a break from the
previous scheme where we had two-story retail, but they
were separate users. Here we started to say it's very
difficult to lease a second story of any retail complex.
So we — we were working on getting users that would
actually do a two-story concept versus a single users over
a single user. We wanted the two-story look, but we didn't
want the problems with leasing the second story.
So you'll see that this starts to deal with that
issue where we have retail E, a retail G, you'll see these
are actually two-story users.
Q 'Cause it has parentheses?
A Meaning total square footage?
Q Correct.
A Yes.
Q And connected with escalator?
A Whatever, or elevator. We know some of the users
use the two-story concept. So there's 174.
MR. COHEN: Well move on to 175 and mark it for
identification.
(Whereupon the above -referred to
222-
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
"NK CODA, VOL.2, 08.25.00,
BURLIt ON V. HUNTINGTON CENTER
n
1 document was marked Plaintiffs
1
2 Exhibit 175 for identification by
2
3 the Court Reporter, a copy of
3
4 which is attached hereto.)
4
5 BY MR. COHEN:
5
6 Q Give us a quick description of 175.
6
7 A 175 is again similar to 174 in some of our
7
8 two-story users, but we're starting to break down some of
8
9 the larger users, which was retail J into smaller
9
10 retailers. Again, we were really after the -- a small to
10
11 medium size users to give that pedestrian scale and
11
12 everything like that.
12
13 Q As to retail J, retail K area?
13
14 A Correct.
14
15 Q And that's where the Burlington space is?
15
16 A Correct.
16
17 Q Okay.
17
18 A Also, we have a difference from the 174 to 175 in
18
19 this square footage of a theater. In 174 is 110, now we're
19
20 120.
20
21 Again, these are hind of the many, many things.
21
22 that go on during this -- this stage.
22
23 Q Right.
23
24 MR. COHEN: Let's go off the record.
24
25 (Off-the-record discussion was held.)
25
223
and it's — it is somewhat of another milestone plan, I
guess in concept. We mentioned earlier the milestone plan
of — of, hold on, I want to get this right — of 168,
which was a large open space and then — in the eastern
side of the center, and then retailers and theaters above.
All that time we're doing all these exhibits
we've talked about,170 — 169 through 176,177 we come to
a concept that we — we feel — are feeling much better
about. It's got the long pedestrian area in the — it's
got a lot of little shops. It's got our two-story users.
It's got our theater over a retaiL
We still, in your client's eyes, were still short
on something attractive, something unique. I mean actually
in hindsight when you look at this plan to the current
plan, it's kinds blah and in that there's nothing special
about it in the public spaces.
Q The theme hasn't bean created?
A The theme is missing, and some of the formal —
the formalization of some of the public spaces is not
there. This Is more of a hodgepodge of space, not a
formalised effort — or a formalized plan which is what we
see in the final plan.
MR. COHEN: Okay. Mark for identification as Exhibit
178.
(Whereupon the above -referred to
225
1 . _ MR. COHEN: Well mark for identification as Exhibit
1
document was marked Plaintiffs
2 176.
2
Exhibit 178 for identification by
3 (Whereupon the above -referred to
3
the Court Reporter, a copy of
4 document was marked Plaintiffs
4
which is attached hereto.)
5 Exhibit 176 for identification by
5
BY MR. COHEN:,
6 the Court Reporter, a copy of
6
Q Just by date give a description of 178.
7 which is attached hereto.)
7
A 178 is basically the same as 177 with the
8 BY MR. COHEN:
8
exception of it's -- it's our milestone plan with the
9 Q Just give a quick description of 176.
9
Sears, and theater is back in over the -- over where
10 A 176 is again similar to 174 and 175 due to the
10
Montgomery Wards was.
11 differences again are above -- this is -- we've now added
11
MR. COHEN: Okay. Let's go off the record for a
12 the Sears and put the theater over The Gap. So before we
12,
second.
13 just were going with retail. Now we have a single user of
13
(Off-the-record discussion was held.)
14 a much larger square footage, and that's the primary
14
MR. COHEN: Well mark for identification as Exhibit
15 difference.
15
179 another site plan. It's a December 16th, 1999 site
16 MR. COHEN: Well mark Exhibit 177.
16
plan.
17 (Whereupon the above -referred to
17
(Whereupon the above -referred to
18 document was marked Plaintiffs
18
document was marked Plaintiffs
19 Exhibit 177 for identification by
19
Exhibit 179 for identification by
20 the Court Reporter, a copy of
20
the Court Reporter, a copy of
21 which is attached hereto.)
21
which is attached hereto.)
22 BY MR. COHEN:
22
BY MR. COHEN:
23 Q Give a quick description maybe by the date of
23
Q Give a description of this.
24 this plan.
24
A Okay. You stated the date. This is very similar
25 A Sure. Actually 177 is -- that's dated 12/13/99,
25
to Exhibit 178. There appears to be an increase of square
224 1 226
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
1 footage of about 10,000 feet which probably is in this area I 1
2 right here (indicating).
2
3 Q That's —
3
4 A Adjacent to the theater.
4
5 Q Retain?
5
6 A The retail I in 178 was a bunch of little
6
7 buildings -- little retailers, wherein 179 is now a larger
7
8 retailer of 35,000 square feet.
8
9 MR. COHEN: Well move on now for identification to
9
10 Exhibit 180.
10
11 (Whereupon the above -referred to
11
12 document was marked Plaintiffs
12
13 Exhibit 180 for identification by
13
L4 the Court Reporter, a copy of
14
15 which is attached hereto.)
15
16 BY MR. COHEN:
16
17 Q I guess it's site plan 2. It's also dated
17
18 December 16th, 1999. How is this -- it's alternate — 179
18
19 is alternate 1 and 180 is alternate 2.
19
20 A Yes. It appears we've reduced the square
20
21 footage. They're identical only in that we're back to
21
22 90,000 square foot building underneath the theater of
22
23 120,000 versus the Sears and theater in the 179 plan.
23
24 Q Okay.
24
25 MR. WATSON: Can we go off the record?
25
227
1 MR. COHEN: Yeah.
1
2 (Off-the-record discussion was held.)
2
3 MR. COHEN: Back on the record.
3
4 Well mark as identification as Exhibit 181
4
5 another site plan dated December 22, '99.
5
6 (Whereupon the above -referred to
6
7 document was marked Plaintiffs
7
8 Exhibit 181 for identification by
8
9 the Court Reporter, a copy of
9
l0 which is attached hereto.)
10
11 BY MR. COHEN:
11
12 Q Just give a description of this.
12
13 A Okay. This is — this is a departure on the
13
14 western end of the site from the previous site plan in
14
15 which we have moved the theater = how to say this best --
15
16 we have the Sears building, but there's nothing over it.
16
17 It's a single story building again on the eastern end of
17
18 the site.
18
19 And we moved the theater towards the east, and
19
20 then put it over some retail. And what we were thinking of
20
21 a gallery underneath the theater which had -- was an open
21
22 space. But obviously it was enclosed to the ceiling, and
22
23 we were envisioning a grand spiral staircase to help break
23
24 up the ceiling issue. That's how you get up to the
24
25 theater.
25
228
f � ,
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
Q Okay. Now, in 181, does this raze the entire
existing mall by including the Montgomery Wards there?
A That would be correct.
MR. COHEN: Okay. Well mark as Exhibit 182 -- mark
for identification as 182, another conceptual site plan or master site plan, December 27, '99.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 182 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
Q Is there a difference between conceptual site
plan and master site plan?
A It's all semantics:
Q All semantics?
A Right.
Q Whatever you feel like calling it that day?
A That's pretty much it.
Q Give just a brief description there?
A This, 182, is similar to 181 in the -- in the way
I was describing about the retail building. Now we're
calling Sears is now just retail and moving the theater
over some of the retail users and moving the stairs out
into the public area so that people can get to'em.
229
But there is — this does start to introduce a
new concept which is a concept change with the street --
streef feeling. And that's what you'll see on the eastern
end or the open area is actually where rather than having
in the past plans we were envisioning — it was just a
pedestrian plaza.
Now, the look was going to actually have curbs
and look like a street that you could — one could drive
through. So we were starting to get into a little theming
of site things, how much to make this feel much better in
terms of a feeling and a theme.
Q It's not that they would drive actually through,
sort of like wallring down Disneyland Main Street?
A We actually went through a discussion a bunch of
times, 'cause we were actually concerned that during the
morning bouts, perhaps you wanted -- you wanted -- you want
an area to be busy with people. And we were — we debated
for a couple weeks of whether that should actually be a
street that people could drive, that you might bar it off
at night or just not at all.
And, to this day, I still think we are -- even
though it's in the design to look like a street, we're not
envisioning cars there, but I believe we will have
bollards, b-o-I-I-a-r-d-s.
Q What are those?
230
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A Veritext Company- 800.649.8787
RANK CODA, VOL.2, 08.25.00
BURLIt_ . ON V. HUNTINGTON CENTER
1 A Those are concrete — usually concrete.
1
that and 18 — I'm sorry — 182, 183, then —
2 Q Posts —
2
Q I pulled off the wrong — should be 184. Want to
3 A Thank you.
3
just scratch it out. Yeah.
4 Q — on the side of the street?
4
A Okay.
5 A Thank you.
5
Q So we're marking this as Exhibit 184. And it's
6 Q So no one can drive in the building?
6
the --
7 A Right. Bollards.
7
A Dated 1/5/2000 master site plan 0110.
8 Q Okay.
8
Q Okay.
9 A These will still probably bollard it off so you
9
A This is very similar to 183. However, we're
10 can't use them. But if we need to get a truck in there or
10
starting to focus again in our view issue from the 405.
11 something, if we move the bollards and people can drive in
i l
And you will see the differences really in that -- which
12 for whatever reason.
12
would be the northeast corner of the center -- of the .- of
13 Q More for an access situation than actually
13
the mass building we eliminated restaurant C, opened it up
14 customers coming in and parking their cars?
14
so that there was a good view coming in from the 405.
IS A Correct, right.
15
Q I see. This is where you're working on the east
16 MR. COHEN: Okay. Let's go back off the record.
16
side of the mail?
17 (Off-the-record discussion was held.)
17
A This is all on the east side of the mall.
18 MR. COHEN: Well mark for identification as Exhibit
18
MR. COHEN: Okay. And well mark for identification
19 183 another site plan dated January 5, 2000.
19
as Exhibit 185 another site plan dated January 5, 2000.
20 (Whereupon the above -referred to
20
(Whereupon the above -referred to
21 document was marked Plaintiff's
21
document was marked Plaintiffs
22 Exhibit 183 for identification by
22
Exhibit 185 for identification by
23 the Court Reporter, a copy of
23
the Court Reporter; a copy of
24 which is attached hereto.)
24
which is attached hereto.)
25 H
25
//
231 1 233
1 BY MR. COHEN: •
1
BY MR. COHEN:
2 Q Just give a brief description of this and how
2
Q And what's going on here?
3 things are starting to change.
3
A 185 is basically duplicate of 184 with the
4 A like I said, in 183, the — actually, the
4
exception that we have hand -drawn in the footprint of the
5 differences between Exhibit 182 and 183 look to be just the
5
existing superstructure, the existing mall.
6 paving pattern. Same square footage, everything else is
6
At this point in time, we were starting to thing
7 the same. It looks like we've just added a different
7
we know this is a pile -supported building, existing
8 paving pattern In the streetscape area.
8
building, and we wanted to see how our design was coming
9 MR. COHEN: Okay. Well mark for identification as
9
along as compared to that existing pile -supported slab
10 Exhibit 184 another site plan. ,
10
'cause we wanted to start thinking about reuse of that and
11 (Whereupon the above -referred to
11
how that would work. So as you can see in general, it
12 document was marked Plaintiffs
12
follows majority of the — of the — what we're proposing.
13 Exhibit 194 for identification by
13
Q Okay. Do you know why — okay. Strike that.
14 the Court Reporter, a copy of
14
MR. COHEN: Mark for identification as Exhibit 186
15 which is attached hereto.)
15
another site plan dated January 5, 2000.
16 BY MR. COHEN: -
16
(Whereupon the above -referred to
17 Q Now, I notice it says master site -plan 0110?
17
document was marked Plaintiffs
18 A- Right:
18
Exhibit 186 for identification by
19 Q And 183 has 0041. Do you know what that is?
19
the Court Reporter, a copy of
20 A I would anticipate- I would assume that for
20
which is attached hereto.)
21 some reason we named them that way. I do not know. Again,
21
BY MR. COHEN:
22 my staff will name things how they feel — the name du
22
Q Give a description of what — 186 of what's going
23 jour, but there's no significance to naming.
23
on here. .
24 Q Okay.
24
A In 186, now we're starting to focus — we -- and
25 A Exhibit 187, the main difference here between
25
you'll notice, there actually is — on the eastern side,
232 1 234
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
I the streetscape is a windey road, winding road. And so
l
2 we've — we've come kind of to the conclusion that this is
2
3 the best design in terms of the eastern side, and we start
3
4 to look — this is our first pass at the western side. The
4
5 main division line is a — a break in the buildings about
5
6 midway.
6
7 So on the western side, we're starting to look at
7
8 a plaza, a more well-defined plaza. There -- some of the
8
9 concepts that are going on behind this design is on the
9
10 eastern side is the winding road and the little bit looser
10
11 structure in terms of open space and what people will be
11
12 doing. Whereas on the western side we're trying to do a
12
13 contrasting design with a more formalized open -- space in
13
14 terms of geometry and what have you.
14
15 We have the — we've started to finalize the
15
16 stair location to the theater which is still above a
16
17 retail, and we have a gallery underneath now the theater
17
18 with some small shops with a — all ending in a new 120,000
18
19 square foot building, unknown tenant at that point in time.
19
20 As I mentioned in the past, we had talked about
20
21 Montgomery Wards was willing to build a new building, so it
21
22 could have been them. It could have been Sears. We didn't
22
23 know. We just figured we'd anchor that in with a user that
23
24 we could make — get some access through that gallery.
24
25 Because if you have a dead end, very difficult to lease.
25
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235
So we were hoping to get someone that would let us open up
there and get a draw through for people.
Q And this is gonna be all covered space?
A That's all covered, correct
Q Okay. Move on.
MR. COHEN: Shall we go off the record?
MR. WATSON: No, no, this is the last one.
MR. COHEN: III mark for identification as Exhibit
187.
(Whereupon the above -referred to
document was marked Plaintiff's
Exhibit 187 for identification by
the Court Reporter, a copy of
which is attached hereto.)
THE WITNESS: 187 is really refining 186. We're
adding the paving patterns, but in addition, we're --"we're
really starting to look at -- on the eastern side, some
geometry of the restaurants, of not just squares anymore,
but something interesting. I think we at this point in
time were talking to a particular restaurant for that
footprint.
BY MR. COHEN:
Q You're talking about E?
A I'm sorry, E.
We started to focus in on the cross -hatched
236
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FRANK CODA, VOL.2, 08.25,00
BURLINGTON V. HUNTINGTON CENTER
buildings indicate the two-story buildings versus the
one-story. So we're trying to get some one-story, some
two-story to get some movement in the vertical direction.
Q And the two stories are designated with
parentheses for total square footage at the bottom?
A Correct. And the cross -hatched.
Q Okay.
A On the western side, we've started to really get
into the formalization of the — the open space. Again,
giving more of a formal approach to the — the spaces.
We've got the — we've got — at this point we've got the
stairs with the dome over it which is the current design
again in the specific plan.
Again, the theater has the cross -hatched space
indicating the theater above.
We're kind of coming to conclusion that this
is — this is stardn' to really be what our client had
originally intended was something unique, something special
with the two different types of open space with the — all
the small shops, the ups and downs, basically the theming
of the Italian villages coming to the end of the concept
design.
Q I see. And this is January 5, 2000, correct?
A Right.
Q And this is before the city has given any —
237
A Input
Q -- input into the —
A That's correct Just memory, I think if I
remember, it was over the Christmas — middle to end of
December between when we saw that series of exhibits dated
the 12th — early — early December when we said we need to
do something special, We get hearing that over and over
again.
And so that's there we kinds met a lot with them
and trying to brainstorm what about this, what about that
And so beginning of January we're stardn' to come to
something that everyone feels is trying to accomplish their
needs.
Q When we say the city was giving its input, they
weren't giving input in relation to the type of tenants?
A No. No. Totally in terms of design.
Q Okay. What about the structures themselves, as
far as you know the shapes of the structures, were they
giving input on that?
A Well, simultaneous with all the site planning is
the elevation design, and there's a whole series of
elevation design. And even still, we hadn't -- we hadn't
really proposed anything to the city.
Early on we -- the city was concerned actually
with Greenberg-Farrow's ability to be an architect for this
238-
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RANK CODA, VOL.2, 08.2S,00
BURLINON V. HUNTINGTON CENTER
ey .
3;
1 ,,.project because of our reputation as -- as large retailers. I 1 we were focusing on the — on the western side. We're
2
And they didn't know — they didn't feel we were
2
looking at the road geometry as it comes in off of Edinger,
3
appropriate. And we did some conceptual design, I mean
3
and we're looking at our plaza again. And we're still
4
that was probably in the September, October, November
4
we're still dealing with the issue of -- on the western
5
range, so —
5
side of having a -gallery that might be a dead end gallery.
6
Q That you presented to the city?
6
So in this scheme we've moved the theater back over to
7
A We did not. Our client did.
7
120,000 square foot user and moved it back and still
8
Q I see.
8
working on what to do with this area back and forth.
9
A Had done that. So there was some --
9
Q And the theater would be above here?
10 •
Q Did you give me those today?
10
A Correct.
11
A The design?
11
Q This would be an open space where the staircase
12
Q Those designs that you presented to the city?
12
is?
13
A No.
13
A Correct. Open to the sky.
14
Q Do you have those?
14
Q Okay. I'd like to mark for identification as
15
A Sure.
15
Exhibit 180 — let's go off the record.
16
Q Oh, you do?
16
(Off-the-record discussion was held.)
17
A Well, you asked for site plans. These are
17
MR. COHEN: i.eNs get on the record. 1'd like to mark
18 '
prospectives and elevations.
18
as exhibit — mark for identification Exhibit 189, another
19
Q Right. I guess all drawings?
19
site plan dated February 17, 2000.
20 •
A Okay. Well.
20
(Whereupon the above -referred to
21-
Q There's a lot more?
21
document was marked Plaintiff's
22'
A There's a lot more. I mean this is -- you just
22
Exhibit 189 for identification by
23 '
asked -- I thought we were just after the site plan, so
23
the Court Reporter, a copy of
24
-that's all I pulled.
24
which is attached hereto.)
25 '
Q Okay. Let's move on for now.
25
THE WITNESS: This site plan, 189 is beginning of
239
241
I- ,
A But I guess to finish that conversation — I mean
1
creating the specific plan exhibit. It's labeled as such.
2
the point was, we did some initial perspective that showed
2
And so this would have been beginning of exhibits for the
3
something that, you know, was not even near what we bunt
3
specific plan. So this is starting of that exercise.
4
or not built, I'm sorry, but current design, bat just to
4
BY MR. COHEN:
5
get them comfortable that we have design capabilities.
5
Q Do you know if that's the one actually included
6
Q Right.
6
in SP-13?
7
A And that was a one-shot perspective and that
7
A No, I don't think this is the one that was
8
seemed to make them happy. And then there was no
8
included.
9
communication, at least from as to the city, on the look
9
Q Do you have it — I guess well get to it.
10
until, again, we got Into at this point in time, not are we
10
MR. COHEN: Mark for identification as Exhibit 190
11
fivalizing the site plan in terms of the theme, but also
11
another specific site plan No. A dated March 8, 2000.
12-1 the elevations are coming along as well.
12
(Whereupon the above -referred to
'13
MR. COHEN: Okay. I'd like to mark for identification
13
document was marked Plaintiffs
14
as Exhibit 188 -- strike that. Let's go off the record.
14
Exhibit 190 for identification by
15
(Off-the-record discussion was held.)
15
the Court Reporter, a copy of
16
MR. COHEN: Mark for identification as Exhibit 188,
16
which is attached hereto.)
17
the plot date is February 7, 2000. --
17
BY MR. COHEN:
18
(Whereupon the above -referred to
18
Q Give a quick description of that.
19
document was marked Plaintiffs
19
A This, I believe, is the specific — the site plan
20
Exhibit 188 for identification by
20
that's in the specific plan and —
21
the Court Reporter, a copy of
21
Q How does 189 and 190 differ?
22
which is attached hereto.)
22
MR. WATSON: Square footage is different on 189 and
23
BY MR. COHEN:
23
190.
24
Q Give just a quick description of what 188 is.
24
BY MR. COHEN:
25
A 188 is a — kind of a design sketch plan in which
25
Q Do you notice any other differences other than
240 1 242
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
1 just the square footage?
1
2 A Not offhand.
2
3 Q Do you know where that square footage is coming
3
4 from, the extra?
4
5 A Not without studying, actually. Might have been
5
6 we just added wrong. We've been known to do that, too.
6
7 Q Which one do you think -- this is the later in
7
8 time?
8
9 A Right. I mean we should just look at -- look in
9
10 the specific plan.
10
I 1 Q We'll keep up. Well figure it out.
11
12 MR. COHEN: I'd like to mark as -- mark for
12
13 identification as Exhibit 191 another site plan entitled
13
14 specific plan No. 8 dated March 8, 2000.
14
15 (Whereupon the above -referred to
15
16 document was marked Plaintiffs
16
17 Exhibit 191 for identification by
17
18 the Court Reporter, a copy of
18
19 which is attached hereto.)
19
20 BY MR. COHEN:
20
21 Q And give a little description of this and how
21
22 it's different, if it is at all.
22
23 A This is an all -- this is the alternate plan,
23
24 site plan that's in the specific plan which, you know,
24
25 generally specific plans you -- you're supposed to give
25
243
1 some alternates or some other ways. And so, in this case, 1
2 it's showing the Burlington Coat building staying, and the 2
3 impact it had on the public space, the formal public spaces 3
4
and everything that we had.
4
5
And, again, obviously like we've always
5
6
discussed, the view is -- that's a concern, and obviously
6
7
you don't get nearly the impact you do without the
7
8
Burlington building, 'cause — all the reasons we've been
8
9
discussing all along with small shops and —
9
10
Q In Exhibit 190, these will be two stories, and
10
11
I'm pointing at retail 1 and retail 10?
11
12
A Correct
12
13
Q So that's gonna have a high profile; am I correct
13
14
on that?
14
15
A Yeah, but not nearly to the -one of the existing
15
16
Burlington building, which is a three-story building.
16
17
Q I see. And then, also, there's a row of retail
17
18
shops in 191, and like small little retail shops?
18
19
A Correct`
19
20
Q I don't even know how many square feet that
20
21
totals, not 7500, 8,000 square feet. I mean has any
21
22
consideration been given to enlarge the open areas by
22
23
removing these retail shops here?
23
24
, A No. Because, again, we were always looking for
24
25
the two-sided -- the three -sided site as we discussed. So
25
244
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
if you remove that 8,000 square feet, you'd end up perhaps
with a back side or maybe these would be -- most retailers
don't do double -sided stores. Pretty much there's a back
of the house, if you will, where the stock rooms and what
have you are.
So it — one — two things: One, that would be
problematic. One of these sides would be the back of the
house.
And the other issue is, again, this is -- you've
got a scaling problem with some small shops and then a very
large wall. This would be a very uncomfortable space if
you envision one side is single story of maybe eight — 14,
18 feet, the other side a 35-foot high building.
Q Okay.
A 40-foot high building.
Q But you're gonna have a very high building to the
left?
A Correct
Q No matter what?
A Correct
Q In both 190 and 191, am I right on that?
A That's correct
Q That's because of the theater?
A That's correct. But we were able — you Imow, we.
were able — in 190, we had low buildings on each side of
245
the public area So you were stepping up — as you'll see,
you got low buildings here, and then you have the two-story
on the outside and then the large buildings here. So you
had a sequential — a progression of — of space and
buildings where this is just (indicating).
Q It is possible, though, to make a facade though
and make it look like -- actually like a two-story — two
separate stories -- there's a way of sprucing up the side
of the buildings; is that correct?
A You can spruce it up. But if you wanted to do
what you were suggesting, bringing it down to pedestrian
scale, you would have to — you'd have to come out in front
of the building and add a single level of or something of
that nature.
Q Right, or just a facade?
A Well, the facade it's a mass. You can't get rid
of the mass through sprucing it up. It's still gonna be
out there.
Q Make it look like it has two stories, though,
like two balcony levels?
A I'm saying in order to do that, you've got to
come forward. You can't do it in a single plane 'cause
it's still gonna be a single plane mass.
Q Sounds like it's workable.
A (Witness shakes head.)
246
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A Veritext Company- 800.649.8787
i
--�tANK CODA, VOL.2, 08.25.00
BURLIK .'ON V. HUNTINGTON CENTER
I
Q Well move on. We'll mark for identification as
I
just looking at at 190.
2
Exhibit 192 -
2
So it does not accomplish anything that we
3
(Interruption in the proceedings.)
3
were - what we had accomplished, but it is something that
4
MR. COHEN: Let's go off the record.
4
could be done if one wanted to do it.
5
(Off-the-record discussion was held.)
5
Q Okay. The plot date is July 31, 2000?
6
MR. COHEN: I'd like to mark as Exhibit 192 another
6
A Right.
7
specific site plan dated March 22, 2000.
7
Q Do you know when this was created, though?
8
(Whereupon the above -referred to
8
A I do not know offhand.
9
document was marked Plaintiffs
9
Q Approximately?
10
Exhibit 192 for identification by
10
A No, I don't.
11
the Court Reporter, a copy of
11
Q Was it in the last two months, three months or
12
which is attached hereto.)
12
did it predate Exhibit 190, 192?
13
BY MR. COHEN:
13
A I don't know. I mean I can find out, but I don't
14
Q What's going on here with this?
14
know exactly when we did this.
15
A This Is a reduced square footage- In 191 we had
15
Q How can you find out?
16
a total of a million one. And in 190 we had a total of a
16
A By asking the people that did it.
17
million 97.
17
Q Would Bob - is it Bob Bucci who did this?
l8
Q Do you know where the reduction in square footage
18
A Well, Bob -and again some of the people that work
19
is coming from?
19
for him. Looks Him - Bob's got his name in that plot
20
A Again, not without studying it. But one thing we
20
date, but there's also TAT is initials of a person that
21
' did in the specific plan is we had - we're obtaining the
21
actually did the drawing work.
22
entitlements to the maximum allowable square footage which
22
Q Who is that? What's the name of that person?
23
is like a million one or whatever. We won't - we probably
23
A That is To Tramt.
24
will not build a million one square feet.
24
Q And that person does the CAD -
` 25
Q Okay.
25
A Right.
247
249
1 •--
A This is probably what we think we're gonna build,
1
Q Is that the CAD?
2
whereas the specific -- Exhibit 190 is our entitlement site
2
A Right, he just takes direction from Bob on what
3
explain.
3
to do.
4
Q That's right. But architecturally, aside from
4
Q Okay. Computer guy?
5
just the square footage -
5
A Right:
6
A It's the same -
6
Q It seems as though it's sort of a - I mean it's
7
Q -- it's the same?
7
quite different, but it still has - than 191, but was
- 8
A -- as 190.
8
that - was 191 used to create 193 so it has the retail -
9
MR. COHEN: Okay. Let's mark for identification as
9
A No, I think we were asked to move - again, the
10
Exhibit 193 another site plan dated -- what is the date?
10
theater down, and that's what we did.
11
MR. WATSON: It's got a plot date.
11
Q Okay.
' 12
MR. COHEN: Has a plot date of July 31, 2000 and it's
12
A I don't think they're related.
13
called conceptual site plan.
13
MR. COHEN: Okay. I'd like to mark for identification
14
(Whereupon the above -referred to
14
as Exhibit 194 - I will want you to find out when 193 was
15
document was marked Plaintiffs
15
created.
16
Exhibit 193 for identification' by
16
. THE WITNESS: Sure.
17
the Court Reporter, a copy of
17
MR. COHEN: Before we leave.
18
which is attached hereto.)
18
THE WITNESS: Sure.
19
BY MR. COHEN
19
MR. COHEN: 194. It's another conceptual site plan.
20
Q- What% going on here?
20
And the plot date is July 31, 2000. And I don't think it
21
A Here we were asked to move the theater back down
21
has a creation date. But, Mr. Coda, you'll try and figure
22
to the first level and see what the result of that was. As
22
this out before we leave.
23
you can see, we weren't very enthusiastic because we did
23
THE WITNESS: Absolutely.
24
not put much effort into the public spaces. And it is
24
(Whereupon the above -referred to
25
not - it's not very attractive compared to what we were
25
document was marked Plaintiffs
248 1 250
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9
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Exhibit 194 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
Q What is this, 194?
A 194 is a plan where we have a Burlington Coat
building back into the plan with a theater on the first
level and, again, putting everything on the first level.
As you can see, we didn't -- we did -- we were not very
enthusiastic about this plan, so we have not spent much
energy or time on it.
But, again, I believe we were asked to create a
plan with the theater on one level, Burlington back in and
all that. And what -- what does that do, what does that
give us, and that's what this plan would represent.
Q And do you know when this was created?
A No. Like I said, I'll have to find out.
Q Okay. Right. Okay. So let's move on.
MR. COHEN: Let's go off the record.
(Off-the-record discussion was held.)
MR. COHEN: Well mark this. Let's mark it for
identification as 195.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 195 for identification by
251
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
Q What exactly is this?
A This is a -- this looks like -- or is a plan from
a department store that took our site plan computer disk
and inserted their own building into their plan on where
they thought they might want to go.
Q Okay. And the department store is Coles?
A That's right.
Q What are they?
A They're like an upscale Mervyn's.
Q Oh, they're a clothing retail?
A They're soft goods, yeah.
Q And then, also, you have brought your invoices.
Are those redacted or -- meaning dollars crossed out?
A Yes.
MR. COHEN: Okay. I'd like to mark that as
identification as 196.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 196 for identification by
the Court Reporter, a copy of
which is attached hereto.)
BY MR. COHEN:
252
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
I Q Can you just give a description of what that is?
2 A Sure. These are all of — the whole set we're
3 gonna mark as 1%.
4 Q Yeah.
5 A These are invoices from first one to date on the
6 subject project to our client and it indicates description
7 of the work and the hours by the position. As you said,
8 I've blanked out all the financial information.
9 Q Okay. And how many pages are there?
10 A Let's see. There is October -- put these in
1 i order, actually. October 31st, '99, which is our first
12 invoice, November, December'", January 31st, February,
13 April, May and June.
14 Q Okay. Have you had any invoices prior to June, 1
15 guess —
16 A You mean after June?
17 Q Yeah. After June?
18 A Not as yet
19 Q You have not generated it yet?
20 A No, I'm late.
21 Q Okay, yeah.
22 A 'Cause I'm in deposition. No, just kidding.
23 MR. COHEN: Let's go off the record again.
24 (Off-the-record discussion was held.)
25 MR. COHEN: Let's go on the record, and let's just get
253
1 it done. We're at 197. What we have here is a whole bunch
2 of very large color renderings.
3 MR. WATSON: There's three.
4 MR. COHEN: Three large color renderings of
5 elevations, and Mr. Coda has agreed to hold on to these
6 renderings pending this litigation. And if we need it, you
7 know, then well ask him for it. And so is that
8 acceptable?
9 THE WITNESS: Sure.
10 MR. COHEN: Okay. And well mark as Exhibit 197 a
11 rendering dated December 14, 1999 with the GFA logo on it,
12 and I'm going to put the exhibit tab on the back right
13 bottom comer.
14 (Whereupon the above -referred to
15 document was marked Plaintiffs
16 Exhibit 197 for identification by
17 the Court Reporter, and retained
18 by deponent.)
19 THE WITNESS: This is an elevation of -- if I
20 remember correctly, this is our -- I believe this is the
21 view from the eastern streetscape -- inside the eastern
22 side in the street looking towards Edinger. And but this
23 is the interior elevation, and then we had a block of
24 buildings, the streets winding through here. There's a
25 bridge over to the restaurant building.
254
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j1&ANK CODA, VOL.2, 08.25.00
BURLINWON V. HUNTINGTON CENTER
t'
BY MR. COIN:
1
2
Q This is the Village Strada?
2
3
A That would be correct.
3
4
Q 11a0s sort of designated in the specific plan as
4
5
that?
5
6
A Correct.
6
7
Q And it's the inside of the mall?
7
8
A Correct.
8
9
Q Okay. Let's roll this up.
9
10
MR. COHEN: 1'd like to mark as Exhibit 198 another
10
11
rather large color rendering.
11
12
(Whereupon the above -referred to
12
13
document was marked Plaintiffs
13
14
Exhibit 198 for identification by
14
15
the Court Reporter, and retained
15
16
by deponent.)
16
17
BY MR. COHEN:
17
18
Q There's no date on it, but can you give a
18
19
description of 1998 for us?
19
20
A Surely. This is a perspective view from the
20
21
Edinger side of the project looking inwards towards — this
21
22
would be where Strada Road may come out on Edinger side of
22
23
the street. This is looking at Edinger corner almost
23
24
where -- perhaps where — what's the restaurant on the
24
25
corner.
25
255
1
- Q Romano's?
1
2
A Romano's, yes, kinds looking towards that
2
3
direction.
3
4
MR. COHEN: Okay. Mark as Exhibit 199 another color
4
5
rendering, and I'm putting the exhibit tabs on the bottom
5
6
right corner of the back of each of these.
6
7
(Whereupon the above -referred to
7
8
document was marked Plaintiffs
8
9
Exhibit 199 for identification by
9
10
the Court Reporter, and retained
10
11
by deponent.)
11
12
BY MR. COHEN:
12
13
Q What is this?
13
14
A This is a perspective view looking from, not the
14
15
405, 'cause you're too close, but from that 405 corner.
15
16
This would be where when we were talking earlier the view
16
17
into the — the pedestrian area. This is the turnaround.
17
18
This is the — some of the restaurants that we were talking
18
19
about with the odd shaped building. So that's looking that
19
20
direction.
20
21
Q Where is it on here?
21
22
A (Indicating.)
22
23
Q I see. Sothis is another side of the Village
23
24
Strada?
24
25
A Correct.
25
256
Q Okay. Where are we putting them?
A Right here (indicating).
MR. COHEN: We're at 190 -- we're at 200?
MR. WATSON: 200.
MR. COHEN: Yeah.
Okay. We're gonna mark as Exhibit -- mark for
identification as Exhibit 200 another rendering.
(Whereupon the above-referrtd to
document was marked Plaintiffs
Exhibit 200 for identification by
the Court Reporter, and retained
by deponent.)
BY MR. COHEN:
Q What is this?
A ' This is an elevation view of the existing
buildings to remain in this -- in the southeast corner at the Edinger and Beach Boulevard corner of the site.
This is our proposal on how we would reface those
buildings.
Q To give it a village theme?
A Correct:
Q Okay. Is this the same?
A No.
MR. WATSON: No.
MR. COHEN: Oh, this was the Great Indoors, but
257
they're no longer —
THE WITNESS: Correct.
MR. COHEN: Well mark it as Exhibit 201.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 201 for identification by
the Court Reporter, and retained
by deponent.)
BY MR. COHEN-
Q What is 201?
A Exhibit 201 is a front elevation we were
proposing for the Great Indoors, that's a Sears concept we
had talked about on the site plans. And it was just, you
know, to — what we would have done is sent that to them
and said this is what we think you should be — give out in
terms of what single story buildings, what have you.
MR. COHEN: Well mark for identification as Exhibit
202 another rendering:
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 202 for identification by
the Court Reporter, and retained
by deponent.)
BY MR. COHEN:
Q What is this?
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21 (Pages 255 to 258)
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BURLINGTON V. HUNTINGTON CENTER
1 A That is, again, a perspective of the -- the
1
we could do something besides big box. And as you can see,
2 eastern side of the — of the project, the Village Strada,
2
we were playing the Disney theme up just to prove the
3 if you will. From the Edinger corner .- Edinger Street as
3
point.
4 well.
4
Q And this --
5 At this point in time, we were -- this would be,
5
A Exhibit.
6 again, looking somewhat like this (indicating). This is
6
MR. COIN: This is gonna be Exhibit 203, this what
7 early in the concept before we started to jog the buildings
7
we've been talking about.
8 and plans. That's why you have one mass, and it's kind of
8
(Whereupon the above -referred to
9 straightaway here.
9
document was marked Plaintiffs
10 Q Okay. There's no date on this?
10
Exhibit 203 for identification by
11 A No.
11
the Court Reporter, and retained
12 Q Do you know when it was created?
12
by deponent.)
13 A This was probably in the, oh, December range.
13
BY MR. COHEN:
14 'Cause this -- as you'll see, this is probably also during
14
Q So none of this is reality as far as the project
15 or prior to Richard Sawyer's involvement or during his
15
is concerned?
16 involvement. 'Cause you can -- I know that because the
16
A No.
17 current design, these wails are much more embellished, have
17
Q This is not where the theater is gonna be?
18 a lot articulation. We were —
18
A That would have been where the theater would have
19 Q Is that like the stucco is --
19
been, but that's not the current design.
20 A Stucco is ins and outs.
20
Q Okay. Let's move on.
21 Q Oh, okay.
21
A Marking this exhibit?
22 A Not just one kind a flat wall.
22
MR. COHEN: 204.
23 Q I see.
23
(Whereupon the above -referred to
24 A That's exactly what we were — our client didn't
24
document was marked Plaintiffs
25 want. And, you know, they were okay with this. They were
25
Exhibit 204 for identification by
259 1 261
1
starting to. But from their viewpoint, they felt that this
1
2
was still kinds not special enough, not unique enough.
2
3
That's why they hired Richard.
3
4
Q Richard Sawyer?
4
5
A Right. Because we weren't to the level that they
5
6
felt us needing to be to produce the unique special
6
7
something.
7
8
Q I understand. Now, were these — you mentioned
8
9
you presented certain renderings to the city?
9
10
A I think that's in here.
10
11
Q Okay.
11
12
A Let me see if I can find that.
12
13
This is the one that we — this was the one —
13
14
this was done probably early — somewhere in
14
15
September -October where our client had learned — he had
15
16
met with the city, and they were wondering -- they
16
17
were actually — city was actually telling them who the
17
18
architect should be.
18
19
Q Who did they want?
19
20
A At the time I think they wanted P & R or someone
20
21
that they felt comfortable with. So, again, when they --
21
22
story I heard from Doug Gray was when they heard it was
22
23
GFA, they were concerned on our design ability. So we
23
24
produced this perspective. It had actually nothing to do
24
25
with any plan that we did at the time. It was just to show
25
260
the Court Reporter, and retained
by deponent.)
THE WITNESS: 204, again is another perspective
rendering. This would be looking from one of the bridges
that was in the early design towards -- get my bearings
straight here -- this BY MR. COHEN:
Q Is this the bridge that goes over that connects
the restaurant and the Village Strada; is that correct?
A Well, and you'll see at the time, this was prior
to the Village Strada Road. So this is the plaza that we
add -- were envisioning, and this is one of the bridges
that we had. I think this would -- Edinger is on the back
side of this, and over here was where the Barnes & Noble
is.
Q I see.
A So this was -- you're not a bridge looking -- at
some point in time again because of the view from 405 we
didn't have any buildings along this area. We just had a
covered bridge, walkway to connect the different levels.
Q Do you know when this was created?
A Again, I think these are all in this December
range.
Q December range?
A Prior to Richard getting involved, we were doing
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ON V. HUNTINGTON CENTER,
1 Our best to pitch our services. And we didn't quite cut it
1
2 apparently, the design.
2
3 Q Okay. Now, Richard I guess has more recent and a
3
4 more up-to-date renderings?
4
5 A Right In fact, all the graphics of the
5
6 elevation in the specific plan are from him.
6
7 Q I see. I see. Okay. Well, I know he did —
7
8 like there's like a painting one.
8
9 A Right
9
10 Q That's the cover of it of SP-13?
10
11 A Right Bat also — in SP-13, all of the — ail
11
12 the -- for example here.
12
13 Q There it is.
13
14 A Something like this, page 19, that's his work.
14
15 Q Of SP-13?
15
16 A Right
16
17 Q And you don't have —
17
18 A We do not Page 14 of SP-13, that's all his
18
19 work. So he provided all the elevation looks for SP-13 and
19
20 we provided all the site plans:
20
21 Q I see.
21
22 A That was the division of the work.
22
23 Q I11 have t6 talk to him about that. '
23
24 MR. COHEN: Okay. Well mark as Exhibit 205.
24
25 (Whereupon the above -referred to
25
263
1
document was marked Plaintiffs
1
2
Exhibit 205 for identification by
2
3
the Court Reporter, and retained
3
4
by deponent.)
4
5
THE WITNESS: 205 is a perspective rendering. Now we
5
6
are inside of the center and we are looking towards the
6
7
theater dome in the background, and this is the formalized .
7
8
plaza space that we're seeing through this arch.
8
9
So this was the road kinds coming here with the
9
10
turnaround we envisioned during certain times. Actually
10
11
one of the key things of the theaters is the dropoff —
11
12
dropoff -- this is gonna be the dropoff ability for people
12
13
going to the theaters. So that's — that is an important
13
14
issue in their minds. And so we always had a vision that
14
15
this circle people will come in and drop off and leave.
15
16
BY MR. COHEN: —
16
17
Q They can actually drive inside?
17
18
A Drive In a circle. So we were always envisioning
18
19
the bollards would be here (indicating) at the entrance to
19
20.
the Village Strada area so that people could still drive
20
21
in, drop off and get out And people could then walk into
21
22
the public space and then go to the theater.
22
23
Q And when was this rendering created?
23
24
A This one is after — this is probably March —
24
25
and the reason I know that is because the dome design was
25
264
Richard's idea. So anything that had the dome, even though
we created It, it was a concept from him.
Q Okay. And it also seems a little more similar
to -- like Exhibit 193 conceptual plans?
A Correct
Q Okay.
MR. WATSON: These are the only two left. Want them
marked?
MR. COHEN: Yeah, let's mark them 'cause — and well
mark — we have three hard backed poster boards of
different renderings, and well mark as Exhibit 206 another
rendering of a building facade.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 206 for identification by
the Court Reporter, and retained
by deponent.)
BY MR. COHEN:
Q Can you give us some description as to what this
is?
A Sure. This is a computer -generated rendering.
To be honest, I don't know where this occurs on the site.
I know part of the staff was — was feeling hart that we
weren't part of the design staff: So I know they've been
trying to prove to our client that hey, we can do.tbe
265
Richard stag too. So, again, I don't even know — I'm
not sure that this is actually a building that's in the
concept plan today, but it is kinda laying with the look
and what could be done and trying to prove to your client
that we have that capability.
Q I see
A Like I said, it may be — it may actually be one
of the buildings, but I'm not — I can't envision where
that would be,'cause we really don't have a -- this
situation that I'm aware of today of a —
Q The drive thing?
A Yeah, kind of a covered dropoff area.
Q Or could it be the Mervyn's?
A That would be wonderful, but no, I don't think
SO.
Q Or it could be Burlington. Okay. Move on.
MR. WATSON: 207..
MR. COHEN: Mark for identification as Exhibit 207.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 207 for identification by
the Court Reporter, and retained
by deponent.)
THE WITNESS: 207. This was an exhibit we had
produced for the specific plan. This is a color and
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material board of the common areas. And basically this is
snapshots of some of the renderings we had actually looked
at in addition to some actual photos of trying to portray
what we were planning to do in terms of materials and
colors. And that's what this board is about.
BY MR. COHEN:
Q Okay. Do you know when it was -- it was created,
I guess, March 2000?
A Yeah, right in that area for the specific plan.
MR. COHEN: Okay. I'd like to mark as Exhibit 208.
(Whereupon the above -referred to
document was marked Plaintiffs
Exhibit 208 for identification by
the Court Reporter, and retained
by deponent.)
THE WITNESS: 208 is along a similar vein in terms of
the color samples for the project 'cause the city requires
that you produce colors and materials. So on the top, we
have an elevation -- actually the partial elevation of that
large one we saw before, and we actually have put on this
board color chips from paint manufacturers of the actual
paint samples that we were intending to use.
BY MR. COHEN:
Q I see. And like painting the different buildings
gives different depths?
267
A Correct. Again, if the concept is to provide a
village, most villages, cities, whatever, it's not all the
same color and same materials. It's built over time, and
that's kind of what we're trying to achieve is something
that looks like it has been built over time, even though it
was all built on the same day.
Q Okay. Now, again, for the record -- let's go off
the record for a seconds
(Off-the-record discussion was held.)
MR. COHEN: Back on the record. Just so we're again
clear, Exhibits 197 through 208 will be kept in the custody
of Mr. Frank Coda, and we're not gonna make any copies of
it to attach it to the record. But Mr. Coda will make
available these exhibits upon reasonable request, if need
be.
Q That's acceptable?
A That's acceptable.
Q Okay. Let's sit down now.
MR. COHEN: Need to go off the record a second.
(Off-the-record discussion was held.)
MR. COHEN: Let's go back on the record. We just
reviewed, I don't know, about 10 or 15, 20 different
renderings and sketches, but those were pretty much
preliminary renderings or duplicates of what we've already
marked.
268
FRANK CODA, VOL.2, 08.2S.00
BURLINGTON V. HUNTINGTON CENTER
1 THE WITNESS: That's correct.
2 MR. COHEN: We're going to mark as Exhibit 209 another
3 elevation rendering.
4 (Whereupon the above -referred to
5 document was marked Plaintiffs
6 Exhibit 209 for identification by
7 the Court Reporter, and retained
8 by deponent.)
9 BY MR. COHEN:
10 Q Give a brief description of what this is.
11 A This is east, south and — south elevation -- two
12 souths and an east elevation of the center. Again, this is
13 prior to the involvement of Richard. And, actually, we've
14 seen — in some of the color renderings we will have seen,
15 like I was telling you, the large expanse of flat areas and
16 you can see that here. But that's what this is. This is
17 probably in the December range produced something to,
18 again, we're trying to work on the. Look, and we continued
19 to, I guess, not get wbat the client wanted in terms of
20 unique — something different.
21 So as you can see, this is a pretty boxy deal,
22 and that is something they were not interested in. They
23 continued to want to break up and small little things.
24 Q When was this created?
25 A Again, this was. in the December time hams
269
1 Q Okay. And 209, along with, what was it, 197
2 through 208 would just be maintained in your custody and
3 we're not gonna make a copy of it.
4 A That's correct.
5 Q Okay. I just basically want to make sure with
6 all the exhibits that you've given me, are there any other
7 correspondence documents that you haven't given me?
8 A No, I've given you that the Last time — oh, I'm
9 sorry, you had asked about the dates of those two plans
10 Q That's right.
11 A — Exhibits 193 and 194. They were created in
12 the last month, and they were at the request of Doug Gray.
13 And I guess Doug — Doug was requesting them to go to the
14 city to show the city what the impact of the — you know,
15 what the effect is of having to have the retailers — have
16 whatever we showed on the plan. This was a request to put
17 together a plan so that Doug can indicate -- show the city
18 the impact of — of, I guess, whatever — of putting the
19 theater on the first level of putting Burlington Coat's
20 building — leaving Burlington Coat's building in there.
21 That's what this is — that's what is the purpose of this.
22 Q What the impact was?
23 A Right. This is a recent event, and it was done
24 specifically to show the city what the impact was.
25 Q Okay. But your team didn't put much time into
270
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BURLIN ON V. HUNTINGTON CENTER
1
~Y
creating this?
1
2
A No. Again, we personally don't believe --
2
3
professionally didn't believe that's the right answer, but
3
4
we did it as a request to show what the impact would be.
4
5
So that was Exhibits 193 and --
5
6
Q Do you know who at the city requested and when?
6
7
A No. All we were requesting from your client is
7
8
to produce these plans. I don't know if the city requested
8
9
it or if Doug decided he wanted to show 'ern on his own or
9
10
what. 1 don't know.
10
11
Q Do you know who in the city it was presented to?
11
12
A No.
12
13
Q Does that person that you spoke to, does that
13
14
person know?
14
15
A No.
15
16
Q And who was that that you spoke to to get this
16
17
information?
17
18
A That was Bob Bucci.
18
19
Q Okay. Part of your deposition notice we asked
19
20
for documents, and we won't offer a lot of the documents.
20
21
We asked for all documents exchanged between GFA and
21
22
Ezralow. All of those documents have been produced; is
22
23
that correct?
23
24
A That's correct.
24
25 Q We asked for all documents exchanged between GFA 1 25
271
Q Or some other entity or person?
A Yeah.
Q ' No. 8, all documents exchanged between GFA and
the fire department relating to the shopping center?
A Yes. Yeah, you have seen everything that we've
got. The -- I'm just trying to -- that's basically the
site plans which is basically everything. I know we
have -- we've met with building or fire or what have you,
but there is no documents. There's no --
Q I see. For people in building, who was that,
James?
A I don't know. I did not meet with him.
Q That would be Bob Bucci?
A No, what had to be the architect. The name is
John Veregge, V-e-r-e-g-g-e.
Q Okay. All documents -- documents exchanged
between GFA and Bryan Ezralow, that would be included in
the Ezralow documents?
A Correct.
Q No. 10, all documents concerning any and all
discussions including closed session in, among and between
GFA and Ezralow regarding, referring or relating to the
shopping center or Burlington?
A You've seen.
Q Again, all documents we've seen?
273
1
and Whitman -Breed or it's now Holland & Knight. If there
1
A Yes.
2
were -- were there any documents exchanged between GFA and
2
Q Have we seen all memoranda like internal
3
the attorneys for Ezralow?
3
memoranda regarding discussions between Ezralow and GFA?
4
A If -- the only documents would have been sending
4
A You have:
5
.'site plans.
5
Q Does GFA — is it policy to create some internal
6
Q Okay. And so we've seen all the documents?
6
memoranda, might not be disseminated, but just internal?
7
A You have seen all — you've seen everything.
7
A Not usually. Actually, usually we do; however,
8
Q Okay. Request No. 4 asked for all documents
8
we haven't gotten to that stage in this project where we do
9
between GFA and Huntington Associates. That all would have
9
that stuff. Remember I said before we're still in the
10
been produced as well; is that correct?
10
conceptual, what -if stage, from our standpoint. So that's
11
A That's correct
11
what I'm trying — you Imow, you've seen everything. But
12
Q All documents between GFA and Linscott?
12
we do do meeting minutes and all that, but we haven't
13
A That is correct, too.
13
gotten into anything that relates to architecturally this
14
Q No. 6, all documents between GFA and EDAW?
14
creates liability. I mean this is all -- this does not
15
A That is correct
15
mean anything. All these plans — for our world. Our
16
Q And No. 7, all documents exchanged between GFA
16
world starts when we produce construction documents.
17
and the Redevelopment Agency? —
17
Q I see.
18
A Yeah, there aren't any, but so in a sense you
18
A So this is just play.
19
have.
19
Q I see. These are design documents?
20
Q, So — but there were no documents exchanged
20
A These are pretty pictures.
21
between GFA and Redevelopment Agency?
21
Q I see.
22
A No, we have not even involved with them at all.
22
A So at that stage we don't see a need to document
23
Q I see. If any of their documents were in their
23
anything 'cause it's -- it does not mean anything to us.
24
possession, it was disseminated maybe through your client?
24
Q I see. When it comes down to taking like
25
A Right
25
Sawyer's renderings and then you -- it would be GFA's
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I
responsibility to best adapt them to some practical --
1
MR. COHEN: Let's go off the record.
2
A Buildings
2
(Off-the-record discussion was held.)
3
Q -- buildings —
3
BY MR. COHEN:
4
A Correct
4
Q No. 26, all documents concerning any and all
5
Q — construction, how -- I mean is that often'?
5
discussions between you and Ezralow regarding, referring or
6
How easily converted would be his renderings to use?
6
relating to Ezralow entering into an owner participation
7
A Oh, that is yet to come. I mean we have — we as
7
agreement with the redevelopment agency. You have no
8
an architect have -- have somewhat of an issue with that
8
documents?
9
because they are -- those are really nice paintings.
9
A Right
10
Q Okay.
10
Q No. 27, all videotapes regarding, referring or
11
A We have to make them real. And, again, we
11
relating to a conceptual redevelopment of the shopping
12
haven't even picked up one -- started on that at all.
12
center. Do you have any videotapes that would --
13
Q Or even costing it or —
13
A I have a copy of them. They were not created by
14
A We haven't costed it, we haven't done anything to
14
us. That was another outfit.
15
what I call the real architecture side of the -- to date
15
Q Who created that?
16
it's just been design and concepts and what -ifs. And, like
16
A Font's Designs.
17
I say, pretty pictures and all that stuff, so —
17
Q F-o-n-t?
18
Q Would demolition occur before those type of more
18
A Uh-huh.
I9
hard architectural blueprints are created?
19
Q Do you know where they're located?
20
A That is an owner's prerogative. Ownership may
20
A They're in this building.
21
decide to demo a building with or without any documents, or
21
Q You directed the client to that?
22
they may -- you know, depending on their prerogative.
22
A No — I -- yes
23
Q Typically, though --
23
Q Your client.
24
A I've seen it go both way with clients.
24
No. 28, all documents depicting a redeveloped
25
Q Okay. No. 19, all documents exchanged between
25
shopping center including without limitation promotional or
275
•277
1
you and Ezralow regarding, referring or relating to
1
advertising material regarding, referring or relating to
2
redevelopment agency's eminent domain powers?
2
the shopping center. Everything you have --
3
A There are none.
3
A You've seen.
4
Q No documents exist for that.
4
Q -- we have see seen today?
5
All documents -- number 20, all documents
5
A Right
6
exchanged between GFA and Ezralow or any of its principals
6
Q No. 29, all documents -- actually, strike that.
7
regarding, referring or relating to redevelopment agency's
7
MR. COHEN: Okay. Alan, do you have any questions?
8
eminent domain powers?
8
MR. WATSON: No, I don't have any questions.
9
A I thought you just said that
9
MR. COHEN: Okay. Then what well do is well relieve
10
Q No. This is a little different.
10
the court reporter of her duties. The transcript will be
11
A Okay.
11
prepared and sent to Mr. Coda at his place of business
12
Q This is —
12
here. Youll enclose a self-addressed stamped envelope
13
A It's okay.
13
with it that will be then addressed to our offices, Tuchman
14
Q -- exchange between — well, okay. Actually it
14
& Associates. Mr. Coda will have 30 days to review and
15
is the same. I'm sorry. __
15
make any changes, if necessary, to the transcript and then
16
There are no documents exchanged between GFA and
16
mail it to us with the self-addressed stamped envelope.
17
any of these entities regarding eminent domain or --
17
THE WITNESS: That's from the date of receipt?
18
A No.
18
MR. COHEN: From the date of receipt. We will retain
19
Q -- or condemnation? '
19
custody of the original.
20
A No. We're — we're not even involved in that —
20
' MR. COHEN: Youll sign it under penalty of perjury.
21
know about
21
Should the original not be signed or if the original is
22
Q And we received all documents that reflect all
22
lost or misplaced, then a certified copy will be used in
23
meetings regarding the shopping center and its
23
its place.
24
redevelopment?
24
And then, also, again, just for the record, that
25
A Yes, you have.
25
Mr. Coda is going to maintain custody of Exhibits 19 --
276 1 278
26 (Pages 275 to 278)
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RANK CODA, VOL.2, 08.2S.00
BURLINGTON V. HUNTINGTON CENTER
1 THE WITNESS: 7.
1
2 MR. COHEN: -- 7 through 209. And it will be made
2
3 available upon reasonable request. Is that stipulated?
3
4 THE WITNESS: That's stipulated.
4
5 MR. WATSON: That's fine.
5
6 MR. COHEN: Okay. Also, and the same will apply to
6
7 Volume 1, whatever -- the original -- I think you
7
8 maintained the copies of the originals of the exhibits
8
9 to -- that we attached in your first deposition July 27.
9
10 THE WITNESS: I think we maintained the originals and
10
11 you took the copy.
11
12 MR. COHEN: Exactly. And so the originals will be
12
13 made available upon reasonable request, if necessary.
13
14 THE WITNESS: Sure.
14
15 MR. COHEN: So stipulated.
15
16 MR. WATSON: Sure, that's fine.
16
17 THE WITNESS: Sure.
17
18 MR. COHEN: Okay. That's it.
18
19 MR. WATSON: I want a copy of the transcript, but 1
19
20 don't want any of those, no drawings.
20
21 (Off-the-record discussion was held.)
21
22 MR. COHEN: Let's go back on the record. As we
22
23 discussed earlier, Mr. Coda will make copies of Exhibits
23
24 160 to 19 --
24
25 THE WITNESS: 6 -- 7 --
25
279 1 281
1 MR. WATSON: 5.
2 MR. COZEN: Yeah, 195, and you will send those out to
3 your copying service, and we will be presented with their
4 invoice, and we will pay that invoice.
5 THE WITNESS: Okay.
6 MR. COHEN: Is that stipulated?
7 THE WITNESS: Sure. Is it okay if we — what I was
8 thinking of, well send them over to them, and III have
9 them deliver it directly to someone.
to MR. COHEN: Yeah. Probably the court reporter will
l l have to then take custody of it
12 THE WITNESS: But I don't know the court reporter
13 wants to stick around for an hour or so waiting for that.
14 I can have them all delivered. I mean if that's —
15 MR. COHEN- You're close by, Jilin is close by. So
16 what Mr. Coda win do is then after the copies are_, made,
17 hell have someone deliver it to the offices — the court
18 reporter's offices of Jilio & Associates. Okay. Is that
19. agreeable?
20 THE WITNESS: TLat's agreeable to me.
21 MR. WATSON: 'Mat's fine.
22 ( Whereupon, the deposition proceedings
23 concluded at 1:55 p.m.)
24
25-- (DECLARATION UNDER PENALTY OF PERJURY ATTACHED HERETO.)
280
27 (Pages 279 to 281)
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
" A Veritext Company- 800.649.8787 -
ability 197:6 238:25
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FRANK CODA, VOL.2, 08.2S.00
BURLINGTON V. HUNTINGTON CENTER
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
'LANK CODA, VOL.2, 08.2S.00
BURLIM, ON V. HUNTINGTON CENTER
184:22
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 283
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FRANK CODA, VOL.2, 08.25.00
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Page 284
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DECLARATION
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DEFENDANT 177:7
Defendants 175:13
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defined 198:2
defiWtely199:21'
degree 212:18
Delaware 175:9,10
175:11 176:9,10,11
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depicted 193:20,23
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279:9 280:22
depths 267:25
descent 197:2
describe 196:15
describing 229:22
description 178:8
179:5 180:5 181:5
JILIO & ASSOCIATES CERTIFIED 'COURT REPORTERS
A Veritext Company- 800.649.8787
RANK CODA, VOL.2, 08.25.00
BURLIF% . (ON V. HUNTINGTON CENTER
182:5 190:12
194:22 199:4
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272:2,4,6,8,12,14
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273:9,16,16,18,20
273:25 274:16,19
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doing 189:4 206:10
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domain 276:2,8,17
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eliminating 178:17
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 285
eminent 276:2,8,17
enclose 278:12
enclosed 228:22
end 199:8,21 205:16
211:4 219:14,14
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entire 229:1
entities 276:17
entitled 243:13
entitlement 248:2
entitlements 247:22
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entrance-264:19
envelope 278:12,16
envision 212:8
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envisioned 197:10
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EXAMINATION
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exception 226:8
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exchanged 271:21,25
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experience 195:4
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explain 248:3
expressed 189:18
extending 219:7
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facility 185:21 197:9
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FRANK CODA, VOL.2, 08.2S.00
tBURLINGTON V. HUNTINGTON CENTER
Font's 277:16
foot 210:14 227:22
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180:20 199:17
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
2ANK CODA, VOL.2, 08.25.00'
BURLIN%aTON V. HUNTINGTON CENTER
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208:24 209:11
211:11 213:7,11,11
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
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leaving 194:25 195:7
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let 236:1 260:12
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liability 175:9,11,12
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tittle 188:11 198:6,16
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244:18 265:3
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185:9 196:19,25
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
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215:4 230:13
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make 189:2 192:3
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meaning 222:17
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meant 216:17
medium 223:11
meet 189:12 215:24
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meeting 189:15
274:12
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
°RANK CODA, VOL.2, 08.25.00
BURLII 'ON V. HUNTINGTON CENTER
g.,
meetings 189:8-
276:23
memoranda 274:2,3
274:6
memory 238.3
mentioned 184:19
186:17,19 213:10
225:2 235:20
260:8
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Mervyn's 179:10
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met 186:5,6 238:9
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middle 219:12 220:3
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milestone 179:15,17
225:1,2 226:8
million 247:16,17,23
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minds 264:14
minor 188:9
minutes 274:12
misplaced 278:22
missing 179:16
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mix 216:1 220:22
monkey 188:5
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moving 179:9 180:21
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myself 208,12
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obviously 189:5
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offhand 243:2 249:8
offices 278:13
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originally 237:18
originals 279:8,10,12
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others 184:19
ourselves 221:19
out 184:21 189:1
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
Page 289
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outfit 277:14
outlet 215:24
outs 259:20
outside 246:3
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owner's 275:20
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page 178:2,7 179:5
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painting 263:8
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parentheses 222:16
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part 197:15,20 203::
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partial 267:19
participation 277:6
particular 210:11
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past 186:6 204:7
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pattern 180:7 232:6
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paving 180:7 232:6,8
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pictures 274:20
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pieces 188:6
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217:8,9,12,15,17
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221:18,21 234:6
235:19 236:19
237:11 240:2,10
259:5 261:3
262:18
pointing 244:11
policy 274:5
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
pool 205:8
portion 194:12
215:19
portray 267:3
position 209:8
219:10 253:7
possession 272:24
possibilities 203:14
possibility 200:9
possible 246:6
poster 265:10
Posts 231:2
potential 199:21
powers 276:2,8
practical 213:20
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predates 195:19
preliminary 268:24
prepare 178:11
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prepared 278:11
prerogative 275:20
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present 186:10 206:7
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presentation 208:9
208:11 215:3
presented 196:17
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280:3
presenting 211:6
presume 184:9
pretty 221:19 229:19
245:3 268:23
269:21 274:20
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previous 206:9 222:6
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price 187:1
pricing 213:22
primary 224:14
principals 276:6
prior 193:13,14,16
195:25 196:8
198:14 207:6,6,7
210:9,9 253:14
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207:13,20 208:2,3
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227:1 231:9 239:4
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259:13,14 260:14
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process 187:9,11,16
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progression 246:4
project 186:4'191:3
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206:18 208:20,21
215:19 218:16
239:1253:6
255:21 259:2
261:14 267:17
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projects 189:14,15
promotional 277:25
PROPERTIES
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property 207:10
proposal 257:18
proposed 238:23
proposing 234:12
258:12
prospectives 239:18
prove 261:2 265:25
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184:7 195:4,5,16
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pulled 186:11233:2
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purchase 193:11,11
193:14,16 196:1,1
196:7,8,8 207:6
purchased 196:3,6
pure 213:24 214:1,1
purpose 270:21
pursue 184:9
put 190:6,19,24
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putting 178:16,19
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256:5 257:1
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p.m 280:23
qualifications 185:1
question 183:25
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questions 278:7,8
quick 183:25 192:12
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quite 191:3 250:7
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quote 21619,20,21
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radio 184:6
range 186:9 239:5
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rate 209:9
rather 230:4 255:11
raze 206:22 229:1
razed 194:1,3 212:23
razing 194:2
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real 275:11,15
reality 261:14
really 205:18 206:3
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reason 217:23,25
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reasonable 268:14
279:3,13
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190:10 191:24
]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RANK CODA, VOL.2,08.25.00r,-
BURLIMTON V. HUNTINGTON CENTER
192:1,7,10 200:21
200:24 204:17
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
Page 291
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FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
ANK CODA, VOL.2, 08.25.00V "
BURLINts ON V. HUNTINGTON CENTER -
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 - --
Page 293'
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wall 245:11 259:22
walls 259:17
want 185:23,24
186:1,25 188:10
189:1 190:6,22
192:3 197:11
206:23 212:17
214:5 221:3,19
222:12 225:3
230:16 233:2
250:14 252:8
259:25 260:19
265:7 269:23
270:5 279:19,20
wanted 185:4 195:2
196:20,22,23 203:6
205:18 206:22
213:19 216:12
222:11 230:16,16
234:8,10 246:10
249:4 260:20
269:19 271:9
wants 280:13
Ward 178:13,15 .
Wards 193:24
194:25 195:8 .
198:9 199:7
201:16 202:14
204:14 213:2,4
215:22 219:10,10
220:18 221:1
222:2 226:10
229:2 235:21
WAREHOUSE
175:5 176:4,19
wasn't 212:1,13,18
WATSON 177:9
192:21 214:5
221:3 227:25
236:7 242:22
248:11 254:3
257:4,24 265:7
266:17 278:8
279:5,16,19 280:1
280:21
way 185:7 189:20
191:16 192:6
193:9,13 200:2
205:14 220:6
229:21 232:21
246:8 275:24
ways 244:1
week 189:13,13,14
189:15
weeks 208:4,6
230:18
weird 192:5
well 185:7 186:21
194:2 196:19
197:3 198:2
199:13,24 216:20
219:1 220:4
238:20 239:17,20
240:12 246:16
249:18 259:4
262:10 263:7
272:10 276:14
well-defined 235:8
went 194:11 205:4
205:14,15 206:13
211:13,14 219:7
'230:14
weren't 201:17 209:6
238:15 248:23
260:5 265:24
west 177:10 213:5,8
215:19
western 180:15
228:14 235:4,7,12
237:8 241:1,4
we'll 190:10 191:8
192:9,19 194:14
198:22 200:25
202:4 203:22
204:19 209:20
214:8,24 218:23
221:6,7 222:23
224:1,16 226:14
227:9 228:4 229:4
231:18 232:9
233:18 242:9
243:11,11--247:1,1
251:21 254:7,10
258:3,17 263:24
265:9,11 278:9,9
280:8
we're 187:8 189:4,22
200:24 207:13
212:21 214:7,18
217:8 221:6 223:8
223:19 225:6
227:21 229:22
230:22 233:5,9
234:12,24 235:7,12
236:15,16,16 237:2
237:16 238:11
241:1,3,3,4 247:21
FRANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
248:1 253:2 254:1
257:3,3,6 264:8
268:4,16,12 269:2
269:18 270:3
274:9 276:20,20
we've 186:24 187:15
196:6 197:10
214:17 215:3
221:18,25 222:3
224:11 225:7
227:20 232:7
235:2,2,15 237:8
237:11,11,11 241:6
243:6 244:5,8
261:7 268:24
269:13 272:6
273:5,8,25
whatnot 213:24
what -if 274:10
what -ifs 275:16
while 199:19
whited -out 194:12
Whitman -Breed
272:1
whole 189:21 194:2
194:2,6 238:21
253:2 254:1
wholesale 215:18
willing 235:21
Wilshire 177:5
windey 235:1
winding 180:11
235:1,10 254:24
windows 206:3,4
winter196:11,12
witness 183:6 190:18
192:2,5 236:15
241:25 246:25
250:16,18,23 254.9
254:19 258:2
262:3 264:5
266:24 267:16
269:1 278:17
279:1,4,10,14,17
279:25 280:5,7,12
280:20
wonderful 266:14
wondering 260:16
Wood 176:20
word 216:17
work 187:2 188:2
204:10 209:10
210:9 216:24
234:11 249:18,21
253:7 263:14,19,22
269:18
workable 246:24
working 186:18
188:18,19 193:16
222:9 233:15
241:8
works 185:7
world 274:15,16
wow 212:2
written 208:19
wrong 216:17
217:24,24 233:2
243:6
X 178:1,6 179:1,3
180:1,3 181:1,3
182:1,3
yeah 184:15 185:16
189:12 192:4,7
193:15 196:10
207:12 214:20
221:4 228:1233:3
244:15 252:14
253:4,17,21 257:5
265:9 266:12
267:9 272:18
273:2,5 280:2,10
year 207:4
yesterday 184:5
#0110180:8
OOCCO6309175:8
176:7
0041180:6 232:19
0110 232:17 233:7
1 175:12 176:11
179:18 200:4
208:2 227:19
244:11 279:7
115100180:7,8,10,11
1/5/2000 233:7
1:55 280:23
10175:12 176:12
244:11 268:22
273:20
10,000 179:19 227:1
10:25175:23 176:23
183:1
110 223:19
12th 238:6
12/13/99179:16
224:25
12/14/99181:9
12/16/99179:19,20
12/2/99179:11
221:17
12/22/99179:22
12/27/99179:24
120 223:20
120,000 227:23
235:18 241:7
Page 2-94
13 197:15
14 245:12 254:11
263:18
15 268:22
15101 176:22
16 201:21
16th 226:15 227:18
160 178:9,11 190:11
190:12,15,18 191:8
191:12 192:13
207:17 216:7,8
279:24
161 178:10 191:9,13
191:14,21 192:12
210:24
162 178:12 192:21
192:22,25 193:4,5
193:20 194:1
195:13,15,18,19,25
207:17
163178:14 192:20
194:14,18,22
195:11,18,19,25
196:14,18 198:8,18
208:3
164178:16 198:22
198:25 199:4,5
200:5
165178:17 200:25
201:3,7,8
166178:19 202:4,7
202:12 203:18
167178:20 203:22
203:25 204:5
205:3,4,4 207:18
208:3
168178:22 204:19
204:22 205:2
206:14 210:12,13
211:1,3,20 212:6
214:20,21,22 215:1
215:16 225:3
169178:23 209:21
209:24 210:4,11,15
210:25 211:6,8
225:7
17 241:19
17th 187:5
170178:25 214:8,11
215:17 225:7
171 179:7 215:6,10
215:15,16 216:7,8
217:12,20 218:2
219:4,5
172179:8 217:4
218:19,24,24,25
220:2,11,16,20
173 179:9 219:17,20
219:24,25 220:24
221:22
174 179:11221:7,11
222:22 223:7,18,19
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
RANK CODA, VOL.2, 08.25.00
BURLINGTON V. HUNTINGTON CENTER
224:10
175179:12 222.23
223:2,6,7,18
224:10
175-280175:9176:9
176179:14 224:2,5,9
224:10 225:7
177179:15 224:16
224:19,25 225:7
226:7
178 179:17 225:24
226:2,6,7,25 227:6
179179:18 226:15
226:19 227:7,18,23
18186:9,9 233:1
245:13 .
180179:20 227:10
227:13,19 241:15
181 179:21 228:4,8
. 229:1,21
182179:23 229:4,5,9
229:21232:5
233:1
183178:3 180:6
231:19,22 232:4,5
232:19 233:1,9
184180:8 232:10,13
233:2,5 234:3 .
185180:9 233:19,22
234:3
186 180:11234:14
234:18,22,24
236:15
187180:12 232:25
236:9,12,15
188180:14 240:14
240:16,20,24,25
189180:16 241:18
241:22,25 242:21
242:22
19 263:14 275:25
278:25 279:24
190178:9 180:17
242:10,14,21,23
244:10 245:21,25
247:16 248:2,8
249:1,12 2573
191 178:10180:18
243:13,17 244:18'
245:21247.15".
250:7,87
192178:12180:20=
247:2,6,10 249:12
193 180:21 248:10
248:16 250:8,14
265:4 270:11
271:5
194178:14180:23
250:14,19 251:1,5
251:6 270:11
195181:6 251:22,25
280:2
1% 181:7 252:19,22
253:3
197 181:8 254:1,10
254:16 268:11
270:1
198178:16181:10
255:10,14
199181:12 256:4,9
1998 255:19
1999 226:15 227:18
254:11
2 179:20 197:24,24
227:17,19
2/17/00180:16
2/7/00180:15
20 268:22 276:5
200181:14 257:3,4,7
257:10
2000175:23 176:24
183:1,16 217:12,23
231:19 233:19
234:15 237:23
240:17 241:19
242:11 243:14
247:7 248:12
249:5 250:20
267:8
201 178:17181:16
258:3,6,10,11
202 178:19 181:18
258:18,21
203178:20 181:20
261:6,10
204 178:22 181:22
261:22,25 262:3
205181:23 263:24
264:2,5
206182:6 265:11,15
207182:8 266:17,18
266:21,24
208182:10 267:10
267:13,16 268:11
270:2
209178:23 182:12
269:2,6 270:1
279:2 =
21st 177:10 218:2
213177:6,11
214178:25
215179:7
218179:8
219179:9
22 228:5 247:7
221 179:11
223179:12
224179:14,15
226179:17,18
227179:20
228179:21
229179:23
231 180:6
232180:8
233 180:9
234180:11
236180:12
240180:14
241 180:16
242180:17
243180:18
247180:20
248180:21
25175:23 176:24
183:1217:12
25th 217:23
25,000 222:3
251 180:23 181:6
252181:7
254181:8
255181:10
256181:12
257181:14
258181:16,18
26 277:4
261181:20
262181:22
264181:23
265 182:6
266182:8
267182:10 -
269182:12
27183:16 188:19
229:6 277:10
279:9
27th 189:9
28 277:24
28th 210:6
2825176:22
29 278:6
3/22/00180:20
3/8/00180:17,19
30 278:14
30th 177:5
31248:12 249:5
250:20
31st 253:11,12
3435177:5
35,000 227:8
35-foot 245:13
37,250 205:25
385-8000177:6
4 272:8
40-foot 245:15
405 180:8 181:12
199:18,22,23
200:14 207:11
233:10,14 256:15
256:15 262:18
5 201:22,23 231:19
233:19 234:15
237:23 280:1
5A 197:23,23
5B 197:25 198:11
5,000 210:14
6 272:14 279:25
633177:10
7 240:17 272:16
279:1,2,25
7/28/99178:24
7/31/00180:22,24
7500 244:21
8180:18 242:11
243:14,14 273:3
8,000 244:21245:1
896.2400177:11.
9/23 217:20 218:3
9/23/99 217:22
90,000 222:1 227:22
90010177:6
90071-2040177:10
97 247:17
99192:17196:9,12
207:6 210:6
217:10,11228:5-
229:6 253:11,12
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01VfiE LL ic'!
'ORPORATF '«ICES
3090 3rstai S uwte 100
Casta Mesa. LA. 92626
714 432.1711
Los ANGEEEs
445 S. Figueroa Suite 2700
Los Angeiet CA Bon
310.615.08711
September 15, 2000
ASSOCIATES
CERTIFIED COURT REPORTERS
& DOCUMENT DEPOSITORY
P. 800.649.8787 F. 800.801.9148
www.jilio.com
JAYNA MORGAN
c/o EDAW
17875 Von Karman Avenue, #400
Irvine, CA 92614
RE: BURLINGTON COAT FACTORY vs. HUNTINGTON
CENTER ASSOCIATES
Dear Ms. Morgan,
Enclosed is the original of your deposition. Please read it; make any
corrections or changes by putting a single line through the words to
be corrected in ink and inserting any changes directly above.
PLEASE INITIAL EACH CHANGE.
After reading and correcting your deposition, please do one of the
following:
Sign your deposition before any Notary Public in
his/her presence.
_XX_ Read and sign your deposition under Penalty of
Perjury. Then send your transcript to Mr. Cohen.
INL1N0 E.413 ;
225'N -asanalay Lane Suite 2W-
San 3emaraina. is 32408
Q09 985 OEPO
Your immediate attention to this matter will be greatly appreciated. If
you have any questions, you should contact your counsel.
Very truly yours,
Z7
,Julie Bell
Jilio & Associates
cc: Loren N.. Cohen
Alan J. Watson
JB/jd
SAN DIEGO
402 W Broadway. 4th Floor
San Oiego. CA 92191
619 299.0EP0
V ERITEXT
A ven;ext Company
J3UqL]AYNA MORGAN, VOL-2, 08.30.00
BU LINGTON V. HUNTINGTON CENTER
1
SUPERIOR COURT OF -THE STATE OF CALIFORNIA
1
APPEARANCES OF COUNSEL:
2
FOR THE COUNTY OF ORANGE
2
3
3
FOR THE PLAINTIFF:
4
4
LOREN N. COHEN, ESQ.
5
LAW OFFICES OF
6
BURLINGTON COAT FACTORY, )
5
TUCHMAN & ASSOCIATES
3435 Wilshire Boulevard
7
Plaintiff, )
6
30th Floor
Los Angeles, California 90010
8
vs. )Case No. 00 CC 06309
7
215 385-8000
9
)Volume If
HUNTINGTON CENTER ASSOCIATES,)
8
9
FOR THE DEFENDANTS:
LLC, et al., )
10
ALAN J. WATSON, ESQ.
10
)
LAW OFFICES OF
11
HOLLAND & KNIGHT, LLP
Defendants. )
633 West Fifth Street
11
)
12
Twenty -First Floor
12
Los Angeles, California 90071-2040
13
13
213 896-2400
14
14
15
DEPOSITION OF
15
16
JAYNA MORGAN
16
17
WEDNESDAY, AUGUST 30, 2000, 9:35 A.M.
17
18
18
19
19
20
20
21
21
22
22
23
23
24
1
24
25
25
110
112
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
I
INDEX
2
FOR THE COUNTY OF ORANGE
2
3
3
Examination By: Page
4
5
5
6
MR. COHEN — 114
BURLINGTON COAT FACTORY, )
7
6
)
8
EXHIBITS
9
Page
Plaintiff, )
10
Plaintin Description Marked
7
)
11
216 Meeting Minutes of April 13, 2000 114
vs. )Case No. 00 CC 06309
217 Fax cover sheet with six pages dated 4-26 121
8
)Volume II
12
218 Planning Division Instructions for 126
HUNTINGTON CENTER ASSOCIATES,)
13
Completing Environmental Assessment Form
219 Fax cover sheet with 4-13-00 Meeting Minutes 128
9
LLC, et al., )
220 Two -page document dated 2-9-00 to 129
14
Scott Dinovitz
10
Defendants. )
221 Fax cover sheet dated 2-7-00 with 2-1-00 131
15
MLettteg
dated 22- 222t-1-1.00 136
11
16
223 5 fax cover sheets & 1-21.00 Meeting Minutes 138
12
224 Fax cover dated 1-25 with handwritten pages 139
13
17
225 Fax cover with Chapter 233-Signs 139
226 Letter dated 12-7-99 to Scott Dinovitz 140
14
_
18
227 Fax cover dated 10-19-99 to Mr. Bartetto 141
15
The deposition of JAYNA MORGAN, taken on
228 Letter dated 9-15-99 with Attachment A 142
16
behalf of Plaintiff at 17875 Von Karman Avenue, Suite 400,
19
229 Fax cover with 7-23-98 Meeting Minutes 152
17
Irvine, California, commencing at 9:35 a.m., Wednesday,
230 Fax cover & 4-13-00 Meeting Minutes with 153
18
August 30, 2000, before Mary I— Loaiza, CSR # 7261; RPR.
70
231 handwritten
dated 4--110-00 with Newspaper Article 155.
19-
21
232 Letter dated 3-16-00 158
20
233 Memo dated 9-23-99 to Jayna Morgan 162
21
22
234 Letter dated 8-20-99 from Woodland Construction 163
22
235 Fax cover dated 1-28-99 & Letter dated 11-20.98 165
23
236 Letter dated 11-22-99 from City of 167
23
Huntington Beams
24
24
237 Letter dated 12-10-98 to Michael Lasley 168
25
25
111
113
1 (Pages 110 to 113)
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1
WEDNESDAY, AUGUST 30, 2000, 9:35 A.M.
1
2
IRVINE, CALIFORNIA
2
3
3
4
JAYNA MORGAN,
4
5
called as a witness by and on behalf of the Plaintiff, and
5
6
having been first duly swom by the Certified Shorthand
6
7
Reporter, was examined and testified as follows:
7
8
EXAMINATION
8
9
Q. BY MR. COHEN: Can you state and spell
9
10
your name for the record.
10
11
A. Jayna Morgan,J A Y N A M O R G A N.
11
12
Q. This is the continuation of your deposition
12
13
from August 7, 2000. And we're going to just continue
13
14
where we left off. And we were discussing the Meeting
14
15
Minutes of April 13, 2000.
15
16
Let's go off the record for a second.
16
17
(Discussion was held.)
17
18
MR. COHEN: So I'd like to mark for identification
18
19
the Meeting Minutes of April 13, 2000.
19
20
(Plaintiffs Exhibit 216 was marked for
20
21
identification by the Certified Shorthand Reporter, a copy
21
22
of which is attached hereto.)
22
23
Q. BY MR. COHEN: Ms. Morgan, do you
23
24
recognize Exhibit 216?
24
25
A. Yes, I do.
25
114
l
Q. And what is it?
1
2
A. It's a copy of the meeting minutes prepared
2
3
by myself and Alia Hokuki of EDAW.
3
4
Q. Were you present at that meeting?
4
5
A. I was.
5
6
Q. And what was discussed at that meeting?
6
7
A. Basically Jane James, the project planner,
7
8
gave an overview of kind of the status of the Specific
8
9
Plan. It had recently just been submitted to city staff
9
10
for their review. And at that point Howard Zelefsky took
t0
l 1
over the meeting and started talking about the details of
11
12
the schedule, the project schedule, and how we could get to
12
13
Planning Commission a city council bearing for the
13
14
project. There were also other departments present at the
14
15
meeting. --
15
16
The purpose of the meeting was for them to express
16
17
any concerns that they had about the document while the
17
18
applicants were present at the meeting.
18
19
Q. And the applicants being?
19
20
A. Ezralow.
20
21
Q. Was Burlington Coat Factory at the meeting?
21
22
A. Specifically what I recall being discussed
22
23
was the need to put in alternative site plans that would
23
24
include Burlington Coat Factory.
24
25
Q. I see. And who brought that subject up, do
25
115
JAYNA MORGAN, VOL. 2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
you remember?
A. I don't remember, no. I'm sorry.
Q. Would it have been Jane James? Would it
have been somebody from the city that was requesting
alternative site plans?
A. I can't remember. It would have either
been the city or it could have been Ezralow suggesting that
they needed to include an alternative site plans. But I
can't remember who specifically did bring that issue up.
Q. At the January 21, 2000 meeting, and that's
Exhibit 154, 1 will show it to you. I have a copy. Strike
that.
Was Montgomery Wards involved in these
discussions, in these meetings?
A. I was not present at the January 21st, 2000
meeting. But at the April 20th, 2000 meeting there was
also some discussion about the remodeling threshold for
Montgomery Wards in terms of what measures would be
included in the Specific Plan that would require some of
the major tenants, specifically Montgomery Wards, to
remodel their architectural facade.
Q. Okay. But was anybody present from
Montgomery Wards at that time?
A. Ob, no. Nobody was present
Q. On the April 13, 2000 Meeting Minutes,
116
there is a bulletin at the very bottom of the Page 1. It
says, "A memo will be sent to City Council with Howard
Zelefsky's signature, anticipating that only one Planning
Commission public hearing will be necessary for the
approval of the document."
Whose comments were those, do you know?
A. I believe that was a discussion between
Howard and Jane James. Howard directing James to prepare a
memo to the City Council with his signature, for his
signature.
Q. And what would the memo say?
A. I think it was just outlining the schedule,
the upcoming schedule for the Specific Plan. And basically
my recollection of the conversation was that because there
had been several Planning Commission, prior Planning
Commission workshops on the Specific Plan where alot of the
details of the Specific Plan were discussed with the
Planning Commission, that staff believed that it was only
going to require one public bearing.
Q. Okay. Is that common, that only one
planning hearing would take place for a project of this
size?
A. It really depends on the jurisdiction. It
would be uncommon had there not been prior Planning
Commission workshops. But I think because the project had
117-
2 (Pages 114 to 117)
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1
been seen by Macerich, when Macerich was the prior
1
2
applicant and the Planning Commission had seen the Specific
2
3
Plan previously and had had hearings and workshops, I think
3
4
that that was the rational for why only one hearing would
4
5
be necessary.
5
6
So in light of the prior workshops and hearings
6
7
that had occurred already, it's not unreasonable or
7
8
uncommon that only one hearing would be necessary.
8
9
Q. And at those workshops there were no
9
10
representatives from Montgomery Wards; is that correct?
10
1 I
A. I was not present at the workshops for this
11
12
project so I couldn't comment on that, if there were.
12
13
Q. Who was present at those workshops? Are
13
14
the workshops different than the meetings?
14
15
A. Correct. Yes. The workshops are different
15
16
from the staff meetings. The meeting minutes are just with
16
17
city staff and the workshops are actually with the Planning
17
18
Commission. I believe it's a publicly noticed meeting, but
18
19
it's not a public hearing.
19
20
Q. Do you know how many workshops there were
20
21
prior to the adoption of SP 13 regarding this development?
21
22
A. With Ezralow as the applicant?
22
23
Q. With Ezralow.
23
24
A. I want to say there was three. But I'm not
24
25
sure.
25
118
1
Q. Do you remember the dates approximately?
1
2
A. No. I couldn't tell you what the dates
2
3
were. I could look them up and get them to you.
3
4
Q. Where would you look for those dates?
4
5
A. In our correspondence files.
5
6
Q. But you gave me the correspondence file so
6
7
we're going to go through it today. So maybe we can figure
7
8
that out.
8
9
A. Yes.
9
10
Q. Was anyone from EDAW present at these
10
I
workshops?
11
12
A. No.
12
13
Q. Do you know who was present at those
13
14
workshops?
14
15
A. I believe Jane James was present, Scott
15
16
Dinovitz from Ezralow was present; -and possibly other city
16
17
staff♦ PbbHc Works' maybe representatives and possibly
17
18
Howard Zelefsky.
18
19
Q. Did you ever receive the notice of these
19
20
workshops from the city? If the city was going to notice
20
21
these workshops, did you ever receive a copy of the notice?
21
22
A. I can't recall if I received a copy of the
22
23
notice for the workshops. I know we did receive notices of
23
24
the hearings.
24
25
Q. Do you know if any Burlington
25
119
representatives were present at those workshops?
A. No, I don't.
Q. Do you remember what was discussed
regarding the Montgomery Wards building at the April 13,
2000 meeting?
A. Again, I believe what was discussed with
respect to Wards was where in the Specific Plan did it
contain standards or measures that would require Montgomery
Wards to remodel their architectural facades.
The city wanted to Include some type of threshold measures
so that if Montgomery Wards came in for a request to some
type of permit from the city, that there would be a
threshold that would require that their architectural
facade was upgraded to be consistent with the rest of the
center.
Q. And that would be the SP 13 guidelines?
A. Cor recL
Q. The specific zoning guidelines for that
center?
A. Correct.
Q. Was condemnution (sic) ever discussed in
relation to Montgomery Wards or the Burlington leasehold in
any of the meetings that you were attending to?
A. No.
Q. Did Ezralow or the city ever discuss what
120
would happen to Burlington should they develop the mall
without Burlington? Was anything ever discussed regarding
what's going to happen to Burlington?
A. Not that I can recall, no.
Q. I'd like to mark as Exhibit 217 for
identification a seven -page document and the fax cover
sheet is dated April 26. And it's to Scott Dinovitz.
Ms. Morgan, do you recognize this document?
(Plaintiff's Exhibit 217 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Yes.
Q. What is that?
A. It is a fax transmittal to Scott Dinovitz
of Ezralow from Alia Hokuld of EDAW. And it is regarding
directions from OCTA.
Q. Okay. And what is that in regard to? Why
did he need directions?
A. We were having a meeting with OCTA to
discuss locations of bus stops.
Q. Was any city officials present at that
meeting?
A. I believe Terry Elliot from Public Works
was present at the meeting.
Q. And do you know when this meeting took
121
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l place?
1
2 A. I can't remember when it took place.
2
3 Again, I think that I can get the date from our
3
4 correspondence files. The other part of the fax
4
5 transmittal was just a sample of the public facilities
5
6 section from the McDonnell Center Business Park Specific
6
7 Man that Scott Dinovitz had requested a copy of. And EDAW
7
8 had prepared that document: So we were forwarding a copy
8
9 of that section of the Specific Plan for his review.
9
to Q. Now, would this meeting be considered a
10
11 workshop that you were talking about before?
11
12 A. With OCTA, no. Actually, the meeting was
12
13 brought up at the April 13th, 2000 meeting. And I believe
13
14 one of the action items was for EDAW to set up a meeting
14
15 with OCTA to discuss the issue of bus stops along Edinger.
15
16 And this issue was raised by Public Works at the April
16
17 13th, 2000 meeting. So it was one of the tasks that EDAW
17
18 was given as a follow-up to this April 13, 2000 meeting
18
19 with city staff.
19
20 Q. There is also a note bulletin on the April
20
21 13, 2000 Meeting Minutes.
21
22 A. Yes.
22
23 Q. It's at the middle of the page and it
23
24 regards the environmental assessment. And it says, "At the
24
25 site plan level a Mitigated Negative Declaration will be
25
122
1 prepared."
1
2 Has that been prepared yet, do you know?
2
3 A. No, it has not.
3
4 Q. Has EDAW, since the time of your previous
4
5 deposition, August 7, has EDAW done any work regarding this
5
6 project?
6
7 A. No.
7
8 Q. Have you spoken to anyone regarding this
8
9 project?
9
10 A. No.
10
11 Q. Do you anticipate doing any further work
11
12 regarding this project?
12
13 A. It we were requested to assist with the
13
14 further environmental review, it and when a final site plan
14
15 is prepared, I would guess that we: would — we still have
15
16 budgeted fee left to perform tasks.
16
17 Q: And that was part of the initial, I guess,
17
18 what, $7,000 —
18
19 A. I think it was actually a subsequent add
19
20 service for the environmental documentation.
20
21 Q. Do you know if the site plan, the final
21
22 site plan has been completed?
22
23 A. No, I do not.
23
24 Q. Have you spoken to anyone regarding whether
24
25 the site plan has been completed?
25
123
JAYNA MORGAN, VOL.2, 08.30.00 -
BURLINGTON V. HUNTINGTON CENTER
A. No, I have not. Actually I have had one
conversation with Herb Fauland of the city regarding
another project I was working on for him. And in our
conversation I had asked if the drive-thru fast food was
approved by the City Council because I believe that City
Council meeting had occurred since my prior deposition.
And so he had left me a voice mail message
indicating that it had been approved by City Council. And
that's the only conversation that I've had since my prior
deposition.
Q. So you haven't spoken to anyone else from
the city other than Herb Fauland?
A. Other than Herb Fauland, correct.
Q. One of the bottom bulletins on Page 2 of
the April 13, 2000 Meeting Minutes says, "Scott Dinovitz
will revise a Specific Plan and also include a third plan
showing Burlington Coat Factory."
I'd like you to take some time to think about what
events at that meeting took place that actually, you know,
surrounded this bulletin, this bulletin point. Like who
brought it up? What was actually discussed regarding
Burlington?
. A. I want to say Scott Dinovitz himself
brought this up, but I can't be sure if It was Scott or if
it was the city that had. I know there were alot of
124
discussions by Howard Zelefsky as to wanting to keep the
document, the Specific Plan document flexible enough to
allow for changes so that, you know, once a site plan was
nailed down and brought forth and finally approved, that it
wouldn't require a major rewrite of the Specific Plan
zoning document.
So I believe that Howard was encouraging slot of
alternatives, realistic alternatives in the documents so
that once a site plan was nailed down, it didn't require a
complete revision. But I don't remember with that specific
bulletin who brought that up.
Q. Do you remember what Ezralow's reaction was
to Howard Zelefsky's desire or request to keep the Specific
Plan flexible enough to include Burlington and I presume
Montgomery Wards?
A. Yes. I think they were amenable to that.
With most or all of the city's requests they were pretty
receptive to making the modifications to the document.
Q. What about the drive-thru?
A. They were wanting to keep the drive-thru.
I said with most of them. I think that was probably the
one stickler.
MR. WATSON: Could we go off the record.
MR. COHEN: Yes.
(Discussion was held.)
125.
4 (Pages 122 to 125)
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JAYNA MORGAN, VOL.2, 08.30.00
BUo__INGTON V. HUNTINGTON CENTER
l MR. COHEN: Back on the record.
1
2 Q: BY MR. COHEN: On Exhibit 150 to your
2
3 previous deposition you included a list; a memorandum of
3
4 items. And basically the only thing that you said you
4
5 didn't present a hard copy of was the EAW folder which
5
6 contains the final files, the EA form?
6
7 A. Correct
7
8 Q. I was wondering if you have a hard copy of
8
9 that now now that we're at your office?
9
10 A. Yes, I do.
10
11 Q. I'd like to mark for identification as
11
12 Exhibit 218_a document entitled Planning Division
12
13 Instructions for Completing Environmental Assessment Form.
13
14 And it's eight pages. It's unsigned.
14
15 Ms. Morgan, what exactly is this document?
IS
16 (Plaintiff's Exhibit 218 was marked for
16
17 identification by the Certified Shorthand Reporter, a copy
17
18 of which is attached hereto.)
18
19 A. It's actually a copy of the environmental
19
20 assessment form that was prepared in 1998 for the Macerich
20
21 Company, which was the prior owner of the mall by, EDAW.
21
22 And it was forwarded to the Ezralow Company for their
22
23 update, review and update, to reflect their proposal into
23
24 the city.
24
.25 Initially EDAW was going to prepare the update,
25
126
f
but due to time constraints and Ezralow wanting to get it
1
2
in to the city, they chose to fill the form out, to
2
3
complete the form. So we provided this to them.
3
4
Q. I see. That's the update to the
4
5
environment impact report?
5
6
A. No. This is just the initial —every
6
7
project needs to provide an environmental assessment form,
7
8
which is almost like an application form for the
8
9
environmental review. And there was not an environmental
9
10
impact report prepared.
10
11
Every project that has an application into the
t 1
12
city is required to complete this form. And it is
12
13
typically prepared by the appiltant
13
14
Q. That being Ezralow?
14
15
A. That being Ezralow. In the case of
15
16
Macerich, we had assisted the Macerich Company and we had
16
17
gone ahead and prepared the form for them.
17
18
Q. Okay. Let me take a look. And the city
18
l9
would then take this document and compare it to the General
19
20
Plan which did have an EIR and they would determine whether
20
21
or not another EIR would have to be made for this
21
22
particular plan, or is that too further down the road?
22
23
A. No. They would probably compare it to
23
24
their General Plan. But typically what they would do is
24
25
prepare an initial study document using that form. And
25
127
through the initial study checklist they would determine if
prior Ceqa documents would cover the proposed project or if
a mitigated negative declaration could be prepared or if a
new environmental impact report was required.
So typically the city will utilize that form to
prepare what they call an initial study document.
Q. I see. I'd like to marked for
identification as Exhibit 219 a fax transmittal with the
April 13, 2000 Meeting Minutes attached to it. And it's
dated April 18. And it's to Jane James.
Ms. Morgan, you are familiar with this document;
is that correct?
(Plaintiffs Exhibit 219 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Yes.
Q. And just briefly what is that?
A. It is a fax transmittal to Jane
transmitting the draft copy of the Meeting Minutes and
requesting that she review the Meeting Minutes for accuracy
and fax any revisions back to as.
Q. Were any revisions or comments made to
those Meeting Minutes?
A. I can't recall. If they were, they would
be in your incoming correspondence.
128
Q. Okay.
A. Typically Aila Hokuki handled any revision
that would come back in on meeting minutes.
Q. Do you know if Ezralow made any revisions
to those Meeting Minutes?
A. I don't. But they were also sent a copy.
It's standard that basically the project team or the
attendees were all sent copies of the meeting minutes to
review them for their accuracy and then forward back any
changes.
Q. I'd like to marked for identification as
Exhibit 220 a two -page document dated February 9, 2000 to
Scott Dinovitz.
What is this?
(Plaintiffs Exhibit 220 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. This is a correspondence to Scott letting
him know that based on the January 21st team meeting EDAW
was supposed to have received our requested data and maps
that were needed to prepare the Specific Plan by February
the 4th. And as of the writing of the letter, which was
February 9, we had not received the information needed and
therefore our deadline of producing a Specific Plan, a
revised Specific Plan document by February the 25th would
129
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1
be pushed back dependent on when we received the
1
2
informadol.
2
3
Q. Okay. I didn't know that there was a
3
4
deadline. Who created that deadline?
4
5
A. Probably the city and Ezralow.
5
6
Q. Was that a deadline or just sort of a goal?
6
7
A. It was more of a goal. I would say an
7
8
internal goal.
8
9
Q. Who told you about that?
9
t0
A. Scott Dinovitz.
10
11
Q. And what were his comments regarding that,
11
12
that he wanted to --
12
13
A. You know, I was not present at the January
13
14
21st meeting so I don't know what his comments were
14
15
specifically at that date. But there were several goals or
15
16
deadline dates set. And typically the comments were that
16
17
they wanted to keep the project moving forward and be able
17
18
to reach a certain time frame for hearings.
18
19
Q. Did Scott Dinovitz ever talk to you about
19
20
the litigation between Burlington and Ezralow?
20
21
A. I believe he mentioned at some point that
21
22
Ezralow was going to be sued by some of the current
22
23
owners And so that was really the extent of it was just
23
24
that they were going to be in litigation and they were
24
25
going to be sued.
25
130
1
Q. Did he make any comment that it's not going
1
2
to alter their plans? I mean did he elaborate any further?
2
3
A. No. Not really.
3
4
Q. Did it have any affect on the process of
4
5
creating the Specific Plan 13, do you know, that you know
5
6
of?
6
7
A. No. Not that I am aware of.
7
8
Q. I'd like to marked for identification as
8
9
Exhibit 221 a two -page document with a cover sheet. And
9
10
the cover sheet is to the project team. It's dated
10
11
February 7, 2000 and it's subject is meeting minutes. And
11
12
I believe it's the February 1, 2000 Meeting Minutes.
12
13
Ms. Morgan, are you familiar with this document?
13
14
(Plaintiffs Exhibit 221 was marked for
14
15
identification by the Certified Shorthand Reporter, a copy
15
16
of which is attached hereto.)
16
17
A-. Yea
17
18
Q. Were you present at that meeting?
18
19
A. No, I was not.
19
20
Q. Was anyone from EDAW present at that
20
21
meeting?
21
22
A. Yes
22
23
Q. Who was?
23
Z4.
A. Afia Hokula
24
25
Q. Did she report back to you regarding that
25
131
7AYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
meeting?
A. Yes, she did.
Q. Who prepared those Meeting Minutes?
A. Alia did.
Q. Did you help her in the preparation of
those Meeting Minutes?
A. I reviewed them, yes.
Q. What did she tell you took place at that
meeting?
A. The meeting occurred at OCTA with three of
their staff members and the members of city were also
there, as well as Greenberg Farrow Architects, and the
traffic engineers, Linscott Law & Greenspan.
And basically the architects gave an overview of
the proposed plan. And what they were discussing was
possible elimination of one of the bus stops and also
relocating possibly one of the bus stops of[ of Edinger
inside the mall parking lot. And basically I believe the
outcome of the meeting was that OCTA listened to the
information in the proposal and the staff was going to go
back and talk with some of their bosses about the
possibility of entertaining this proposal.
Q. How many meeting were there regarding this
project?
A. With OCTA, or just total meetings?
132
Q. Total meetings with the city and Ezralow.
A. The ones that EDAW was present at we would
have prepared the meeting minutes for them. I believe
there were meetings that occurred where EDAW was not
present. But I would say the total: meetings with OCTA were
two meetings and then the total meetings with the city and
Ezralow I believe we had four meetings Or actually no.
There was two meetings with the city, I believe.
Q. Okay. Well, let's just go through it.
December 2, 99 I have meeting minutes for.
A. Right. And that meeting was with Ezralow,
but I don't believe — and the consultants but not with the
city.
Q. Okay. And you were present at that
meeting, right?
A. Yes
Q. That was the initial meeting?
A. The initial meeting, correct.
Q. When EDAW was retained by Ezralow?
A. That's correct.
Q. Then the next meeting minute I have is the
January 21, 2000 Meeting Minute.
A. And that one I was not present at, but Alin
from EDAW was present. And that was at the city of
Huntington Beach with Ezralow and their architects.
133-
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3AYNA MORGAN, VOL. 2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
1 Q. Okay. And then we now have Exhibit 221,
1
2 which is the February 1, 2000 Meeting Minute?
2
3 A. Correct.
3
4 Q. And, again, you werea4 present at that
4
5 meeting?
5
6 A. No. And that was with OCTA.
6
7 Q. But Alia Hokuki was there?
7
8 A. Alla Hokuki was there and the city was
8
9 there as well.
9
10 Q. And then the next meeting minute I have is
10
l 1 'the April 13, 2000 Meeting Minute?
11
12 A. Correct
12
13 Q. As far as you know, were there any other
13
14 meetings or meeting minutes prepared other than the ones we
14
15 just discussed?
15
16 A. There was one subsequent meeting that Alfa
16
17 attended but no meeting minutes were prepared subsequent to
17
18 the April 13M And it probably was around the week of
18
19 April 26th with OCTA to discuss, again, the bus stop
19
20 issues. And I believe the city was present, however, there
20
21 was no meeting minutes prepared. It was a rather brief
21
22 meeting, as I recall.
22
23 Q. And is that Exhibit 217, that reflects that
23
24 meeting?
24
25 A. Yes Correct.
25
134
1
Q. So aside from all the meetings that we just
1
2
discussed there are no other meetings that you know of with
2
3
the city, EDAW, and Ezralow present?
3
4
A. Correct.
4
5
Q. But Ezralow and the city may have had
5
6
numerous meetings?
6
7
A. Yes. And I believe they did.
7
8
Q. Do you know if those were public meetings,
8
9
if they were noticed public meetings?
9
10
A. I don't know.
10
11
Q. They would be meetings in addition to the
11
12
workshops that you mentioned, correct?
12
13
A. Yes
13
14
Q. And, again, do you know if Montgomery Wards
14
15
or Burlington was present at those meetings?
15
16
A. I don't know.
16
17
Q: I'd like to marked for identification as
17
18
Exhibit 222 a letter dated February 1, 2000. And it has
18
19
two fax transmission cover sheets on it to Scott Dinovitz
19
20
on February 1.
20
21
Ms. Morgan, are you familiar with Exhibit 222?
21
22
(Plaintiffs Exhibit 222 was marked for
22
23
identification by the Certified Shorthand Reporter, a copy
23
24
of which is attached hereto.)
24
25
A. Yes, I am.
25
135
Q. What is it?
A. It is a correspondence prepared by EDAW
discussing the environmental documentation that would be
needed for the Specific Plan project And in essence it
was a proposal for EDAW to prepare the environmental
documentation.
Q. Now, is that an environmental impact
report, or just whatever documentation is necessary for
this project?
A. Whatever documentation is necessary. And
at the time it was anticipated that an update to the prior
environmental document prepared for the Macerich project
would be utilized since the Specific Plan proposed by
Ezralow was actually less intense and actually less square
rootage than the prior proposal that had a mitigated
negative declaration prepared.
Q. What is a mitigated negative declaration?
A. Basically it's a Ceqa document that is,
its not an environmental impact report but it's an initial
study document that proposes mitigation measures which
allow findings to be made with the implementation that the
mitigation measures and all impacts could be mitigated to
less than significant levels
Q. Is it because there was an environmenta4
impact report prepared for the General Plan that it's.
136
important to then just do a negative declaration with
regard to the specific project, is that how it works?
A. Partially, yes What the General Plan
document was used for was a partial exemption that's
allowed for under the Public Resource Code for the areas of
traffic impacts and air quality impacts. Because the
General Plan EIR did analyze a certain intensity for the
mall development and considered traffic impacts and air
quality impacts associated with that certain intensity
which is a greater intensity than what was being proposed
by the Specific Plan. And that General Plan EIR had
identified those as significant unavoidable impacts and had
adopted a statement of overriding considerations for those
areas
Q. I see. Did Macerich also do an EIR when
they were proposing a plan for redevelopment?
A. No. They did not do an EHL They did a
mitigated negative declaration. It was the same type of
document that was being proposed for the Ezralow project
Q. I see. So when you say there was just
going to be an update of a Macerich plan or report, it was
their negative --
A. Mitigated Negative Declaration, correct
MR. COHEN: Off the record.
(Pause in proceedings.)
137
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I Q. BY MR. CORN: I'd like to mark for
I
2 identification as Exhibit 223 five fax cover sheets which
'-
3 attach the January 21, 2" Meeting Minutes.
3
4 Ms. Morgan, are you familiar with that document?
4
5 (Plaintiffs Exhibit 223 was marked for
5
6 identification by the Certified Shorthand Reporter, a copy
6
7 of which is attached hereto.)
7
8 A Yes.
8
9 Q. And is that document, those are just the
9
10 fax cover sheets of who you sent out the meeting minutes
10
11 to; is that correct?
11
12 A. Correct. And, again, it's the people that
12
13 attended the meeting, that were present at the January 21st
13
14 meeting.
14
15 Q. And is that also to list their comments or
15
16 revisions?
16
17 A. Yes.
17
18 Q. I'd like to marked for identification as
18
19 Exhibit 224 a three -page document dated January 25 and it
19
20 incorporates two pages of handwritten notes.
20
21 Are you familiar with this document?
21
22 (Plaintiffs Exhibit 224 was marked for
22
23 identification by the Certified Shorthand Reporter, a copy
23
24 of which is attached hereto.)
24
25 A. Yes, I am.
25
138
I
Q. Okay. What is it?
1
2
A. It is a copy of the transmittals to the
2
3
Ezralow Company and Greenberg Farrow sending them the
3
4
current city signed code, which was a request made at the
4
5
December 2nd meeting.
5
6
Q. Okay. I'd like to mark as Exhibit 225, I
6
7
believe -- it's a fax cover sheet which encloses Chapter
7
8
223 Signs.
8
9
And are you familiar with this document?
9
10
(Plaintiffs Exhibit 225 was marked for
10
11
identification by the Certified Shorthand Reporter, a copy
11
12
of which is attached hereto.)
12
13
A. Yes, I am.
13
14
Q. Okay. And what is that?
14
15
A. It's the city's current sign code
15
16
transmitted by Jane James of the city of Huntington Beach.
16
17
Q. I see. And then for Exhibit 224 --
17
18
A. We forwarded that document to the Ezralow
18
19
Company and their architects, Greenberg Farrow.
19
20
Q. And this was for them to design the signage
20
21
around the development?
21
22
A. Correct.
22
23
Q. Did the Specific Plan require them to
23
24
actually design the signs at that particular period of
24
25
time?
25
139
JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
A. No. Just to include standards, typical
heights and the sizes of the signs. Since a Specific Plan
is also a zoning document, it needs to either incorporate
by reference the existing sections of the zoning code or
create its own standards.
Q. And in this case did the SP 13 create its
own standards or did it just adopt —
A. I believe it did create its own standards
but I'd have to look at the final copy of the Specific Plan
to know for sure.
Q. I'd like to mark for identification as
Exhibit 226 -- well, what is this document?
(Plaintiffs Exhibit 226 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. It's a December 7 correspondence to Scott
Dinovitz from myself outlining the list of the items that
EDAW would need to complete the Specific Plan for submittal
to city stafL
Q. Okay. And this was from Scott Dinovitz to
you; is that correct?
A. Actually it was to Scott Dinovitz from me.
Q. Oh, I see. And he was to work with
Ezralow's architects and other agents and consultants in
order to get the information you needed to prepare the
140
Specific Plan; is that correct?
A. That's correct.
Q. I'd like to mark for identification as
Exhibit 227 an October 19, 1999 transmittal.
What is this document?
(Plaintiffs Exhibit 227 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. This is a transmittal from myself to
Richard Barretto who is with Greenberg Farrow Architects
transmitting the latest copy of the Huntington Center Mall
Specific Plan which was the Macerich Specific Plan that had
the last set of city comments on that document.
So prior to making any modifications to the
document to reflect Ezralow's proposal, it was the Specific
Plan as it stood when EDAW stopped working on it with the
Macerich Company and the city.
Q. And'do you know what Robert's title, or
Richard's title at GFA is?
A. I don't.
Q. Like what he does there?
A. I think he's an architect
Q. I'd like to mark for identification as
Exhibit 228 a letter dated September 15, 1999. And it has
an Attachment A entitled Scope of Work for Completion of
141-I
8 (Pages 138 to 141)
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BU*AYNA
NGTON V. HUNTINGTON CENTER
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25
9
10
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Revisions to Huntington Crossing Specific Plan.
Are you familiar with this document?
(Plaintiffs Exhibit 228 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Yes, I am.
Q. And what is that?
A. It's a copy of EDAW's initial proposal to
the Ezralow Company for completing the revisions to the
Huntington Crossings Specific Plan.
Q. And it sets forth EDAW's assignment for
Ezralow; is that correct?
A. That's correct.
Q. And this was to prepare the Specific Plan
for Ezralow, correct?
A. The update, yes, correct.
Q. When you say the update, you mean to update
the SP 12?
A. Correct. The Macerich specific.
Q. The Macerich plan?
A. Right.
Q. On Page 4 in the middle of the page, it
says, "The Draft Specific Plan Update document will be
prepared for review by the applicant."
Who is the applicant that's referred to?
142
A. I believe it's Ezralow Company.
Q. In Section 1.4, when EDAW was preparing the
Specific Plan — I just want an understanding. EDAW was
preparing the Specific Plan for Ezralow, correct?
A. Correct.
Q. And Ezralow was the applicant, correct?
A. Correct.
Q. And then this plan, this Specific Plan,
would then be presented to the city for their approval; is
that correct?
A. Yes. Their review and comment and
ultimately their approval. As with the Macerich plan, city
staff had also made modifications to the Specific Plan
document prior to it being presented to the decision
makers, the city decision makers.
Q. And that would be the Planning Commission
and then the City Council?
18 A. Yes.
19 Q. And it's in Ezralow's discretion to
20 incorporate those comments or not incorporate those
21 comments; is that correct?
22 A. It's my understanding that at a certain
23 point in the process, when the document was turned offer to
24 the city, the city made their requests and changes to the
25 document and then it was up to Ezralow to state their
143
1 objections to anything that was included in the Specific
2 Plan. Which I believe one objection was the drive-thru
3 restaurants or the exclusion of drive-thru restaurants as a
4 permitted use. And so they raised that issue subsequent to
5 the Planning Commission hearing.
6 Q. Okay. You mentioned that it was turned
7 over. Ezralow turned it over to the city, the Specific
8 Plan?
9 A. Yes. They submitted it to the city. And I
10 believe in March, March or April, when we had the meeting
11 with city staff, there were discussions at that meeting
12 that a red line marked text version would be submitted to
13 the city staff so they could see the prior edits that
14 Ezralow had made to the document. And I believe at a
15 certain point a diskette copy of the document was to be
16 given to city staff so that they could make further
17 modifications.
18 Q. When you say turned over to the city, you
19 mean that it was presented to the city at that point in
20 time; is that correct?
21 A. Correct
22 Q. And who was it presented to?
23 A. I believe the planning department. And
24 typically the planning department's responsibility is to
25 insure that the document is circulated and reviewed by .
144
1 other city departments, such as Public Works and the fire
2 department, economic development.
3 Q. And that's to insure that the Specific Plan
4 is — strike that.
5 Why do they circulate it to these various
6 departments?
7 A. To get their comments and input on the
8 contents of the document.
9 Q. And then their comments or input are then,
10 they would be considered and then —
11 A. Yes. And incorporated as deemed necessary.
12 Q. And is that so when the Planning Commission
13 votes on the Specific Plan, it's in its most final and
14 complete form; is that correct?
15 A. I believe so. So that they understand that
16 it's been reviewed by all of the city departments. It's a
17 standard practice for most projects to be reviewed.
18 Q. This doesn't mean then that the applicant
19 changed? It was still Ezralow; is that correct? That the
20 entity that was the applicant for the Specific Plan was
21 still Ezralow, correct?
22 A. It's my understanding at a certain point
23 the city became the applicant for the Specific Plan, but I
24 don't know the details of that. Once the final Specific
25 Plan was submitted and after we had the April meeting, my
145
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7ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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involvement in the project was maybe a couple hours, you I 1
2 know, with coordination and phone calls.
2
3 Q. How did you come to this understanding?
3
4 A. I believe it was through discussions with
4
5 Jane James.
5
6 Q. When did these discussions take place?
6
7 A. Subsequent to the April, 2000 meeting,
7
8 April 13.
8
9 Q. Do you know when?
9
10 A. I don't.
10
11 Q. Was it in June?
11
12 A. It could have been in June, May or June.
12
13 Q. Did she say why the city became the
13
14 applicant?
14
15 A. No. I can't recall. She may have but I
15
16 can't remember why.
16
17 Q. Why do you think the city became the
17
18 applicant?
18
19 MR. WATSON: That calls for speculation.
19
20 MR. COHEN: I'm asking why she thinks it. You
20
21 preserve the objection.
21
22 MR. WATSON: Yes.
22
23 If we bicker, it doesn't affect you.
23
24 MR. COHEN: Unless he instructs you.
24
25 But I guess she's not your client anyway.
25
146
1
So go ahead.
1
2
THE WITNESS: Ultimately Specific Plan documents
2
3
once they are adopted are city documents. And my guess is
3
4
that because the Specific Plan ultimately would be a city
4
5
document, the city chose to be the applicant.
5
6
Q. BY MR. COHEN: In May or June, at that
6
7
point in time Specific Plan 13 had not yet been adopted by
7
8
the city; is that correct?
8
9
A. No, it had not
9
10
Q. And when you say adopted, that means voted
10
11
on by the Planning Commission and then the City Council; is
11
12
that correct?
12
13
A. That's correct
13
14
Q. And when your involvement ended in April,
14
15
2000, is that because the Specific Plan was as complete as
15
16
EDAW could make it complete?
16
17
A:. Yes, that's correct.
17
18
Q And at that point in April it was going
18
19
through the various city departments for their comments and
19
20
review; is that correct?
20
21
A. Yea
21
22
Q. And that's a standard practice for all
22
23
Specific Plan approvals; is that correct?
23
-24-
A. Yes.
24
25
Q. Did you ever discuss the Burlington lawsuit
25
147
JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
with Jane James?
A. Yea
Q. When?
A. I believe after I was subpoenaed
Q. For this deposition; is that correct?
A. Yea
Q. And what did you discuss?
A. Just the fact that I had been subpoenaed
for the deposition. I may have asked if she had been
subpoenaed as well.
Q. And what did she tell you?
A. No, she bad not. But she had been
contacted by, I don't know if it was yourself but
Burlington's attorney&
Q. What did Jane James say to you when you
were subpoenaed?
A. We just discussed she hadn't been
subpoenaed and that she bad been questioned by Burlington's
attorneys and they hadn't identified themselves as
attorneys. They had just inquired and bad questions about
the process
Q. Did you ever see a June 5 memo, June 5,
2000 memo from someone from the city regarding the city
becoming the applicant?
A. No, I did not
148
Q. Do you know anything about that memo?
A. No, I do not.
Q. In preparation for your deposition for
August 7 and today, did you speak with anybody else from
Ezralow's attorneys or anybody from the city?
A. No.
Q. Did you ever speak with Ezralow's
attorneys?
A. Prior to the first deposition.
Q. When was that?
A. I don't remember the date but it was prior
to my first deposition. Probably a few days prior to the
first deposition. I think I had indicated in the first
deposition when it was.
Q. Who did you speak to?
A. Marls —
MR. WATSON: Shipaow, S H I P A O W.
Q. BY MR. COHEN: Did you discuss any
documentation at that meeting?
A. We didn't have a meeting. I just spoke
with him over the telephone and I was questioning the
Subpoena reference to producing documents. And I didn't
know if I needed to produce hard copies and computer
versions or one or the other. And then I asked if he
thought it was necessary for me to meet with him prior to
149 -'
10 (Pages 146 to 149)
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JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
1 the deposition, and he said no.
1
2 Q. Did he tell you to withhold any
2
3 documentation from the production today or actually August
3
4 7?
4
5 A. No.
5
6 Q. And you did present all documentation that
6
7 you have in response to those document demands? That's
7
8 correct?
8
9 A. Yes, that's correct
9
t0 Q. To your knowledge would Montgomery Wards
10
l 1 also have to be an applicant for the SP 13, since they are
11
t2 a property owner?
12
13 A I know that had been discussed at the
13
14 Macerich meetings, when Macerich was the applicant. But to
14
15 my knowledge I'm not sure of the city procedures and
15
16 requirements for obtaining signatures of property owners
16
17 for applications.
t7
18 Q. Did EDAW give any consultation to Ezralow
18
19 regarding whether Montgomery Ward should be part of the SP
19
20 13?
20
21 A. No.
21
22 Q. Would it have been part of EDAW's scope or
22
23 assignment to provide such consultation if it was
23
24 necessary?
24
25 A. Typically we would not provide that type of
25
150
1
consultation.
1
2
Q. Why not?
2
3
A. Just that we're not versed and experienced,
3
4
personally I'm not experienced in knowing who needs to be
4
5
an applicant or provide signatures on an application form
5
6
to meet whatever laws and requirements that the city has.
6
7
And my background is more in preparing Specific Plan
7
8
documents and providing Ceqa documentation.
8
9
Q. Do you know what consultants Ezralow had
9
10
that would have provided such information, if Montgomery
t0
11
Wards was necessary to be part of the application? Would
11
12
that just be their attorneys?
12
13
A. I would think so, yes.
t3
14
Q. And it's your testimony that typically the
14
15
city becomes — strike that.
15
16
I'd like to mark as Exhibit 229-a fax cover sheet
16
17
with Meeting Minutes of July 23, 1998 attached to it. And
17
18
the fax cover sheet is dated July 24, 1998.
18
19
Are you familiar with this document?
19
20
(Plaintiffs Exhibit 229 was marked for
20
21
identification by the Certified Shorthand Reporter, a copy
21
22
of which is attached hereto.)
22
23
A. Yes.
23
24
Q. Okay. And what is that?
24
25
A. It is Meeting Minutes that were prepared by
25
151
EDAW documenting a meeting that occurred on July 23rd. 1998
at the city of Huntington Beach when Macerich was involved
in the prior Specific Plan project.
Q. And in that prior project, Burlington was
specifically included in the redevelopment; is that
correct?
A. Yes, I believe so, they were.
Q. Did Macerich ever mention that -- strike
that.
Are you familiar, in the work that you have done
and performed for Macerich and Ezralow regarding preparing
the SPs, are you familiar with Burlington's lease with the
center?
A. No, I am not. It may have been brought up
at some of the meeting, with Macerich, but I am not
familiar.
Q. Was it brought up with any of the meetings
with Ezralow?
A. No. Not that I can recall.
MR. WATSON: Could we go off the record?
MR. COHEN: Yes.
(Discussion was held)
Q. BY MR. COHEN: I'd like you to take a look
at Exhibit 152 that was previously attached to your
deposition. I will show it to you.
152
Do you know if this was the plan that was
ultimately adopted, the Specific Plan that was ultimately
adopted by the City Council?
A. No, I don't know if this was ultimately
adopted or if it had modifications made to it by the
Planning Commission and or City Council.
Q. And I guess it would definitely have a
modification regarding the drive-thrus; is that correct?
A. That's correct.
Q. Okay. I'd like to mark for identification
as Exhibit 230 a fax cover sheet with an attached April 13,
2000 Meeting Minutes with some handwritten notes on it.
Are you familiar with that document?
(Plaintiffs Exhibit 230 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Yes.
Q. Exhibit 230?
A. Yea
Q. And what is it?
A. It is a fax from the city of Huntington
Beach from Jane dames and transmitting her comments on the
Meeting Mlnutes prepared by Alia Hokuld of EDAW, the April
13, 2000 Meeting Minutes.
Q. It's faint on my copy so maybe we can try
153
11 (Pages 150 to 153)
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1
and go over some of the handwritten notes.
1
2
It says at the top, "Attendees, Tim Greaves," and
2
3
that's crossed out, I believe.
3
4
A. Yes.
4
5
Q. And that has handwritten Ward Kinsman?
5
6
A. Correct.
6
7
Q. Who are both of those guys?
7
8
A. They are with the city fire department.
8
9
Q. And Brian Ezralow was not present at this
9
10
meeting; is that correct?
10
11
A. No.
It
12
Q. He was crossed out. Now, do you know if
12
13
these changes were actually made to the final minutes?
13
14
A. Yes.
14
15
Q. I think some were and some were not. You
15
16
took a review of the document. Were all the changes made?
16
17
A. Yes.
17
18
Q. At the bottom of the April 13 Minutes on
18
19
Page 3 it says, "Jane James prepare a memo to the City
19
20
Council with Howard Zelefsky's signature detailing the
20
21
proposed schedule for the Specific Plan."
21
22
Do you know if you received a copy of that memo?
22
23
A. I don't think we did. If we did, it would
23
24
be in our incoming correspondence file.
24
25
Q. Which we're going through now?
25
154
t . A. Yes. I don't recall seeing one though.
1
2 Q. III mark for identification as Exhibit 231
2
3 a letter with an attached newspaper article.
3
4 Are you familiar with this document?
4
5 (Plaintiffs Exhibit 231 was marked for
5
6 identification by the Certified Shorthand Reporter, a copy
6
7 of which is attached hereto.)
7
8 A. Yes.
8
9 Q. And what is it?
9
10 A. The letter is from the Ezralow Company
10
I 1 transmitting a copy of the Specific Plan in April of 2000
11
12 and the Signage Standard on disc. And also a copy of a
12
13 newspaper article regarding the, from the L.A. Times in the
13
14 Orange County business section regarding the mall's plans
14
15 for remodeling.
15
16 Q. And do you know why they sent you a copy of
16
17 this article?
17
18 A. Probably just to keep us up to speed with
18
19 what was going on in the press that the project was
19
20 receiving.
20
21 Q. The article quotes Douglas Gray. It says
21
22 that "But Gray said the current Burlington won't be
22
23 spared. There's no question that that store will come
23
24 down,' he said. The question is whether Burlington will be
24
25 part of the new development or not."
25
155
JAYNA MORGAN, VOL. 2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
Was that your understanding of how Ezralow was
proceeding with the development of the project?
A. Not really, I guess.
Q. Okay. Why?
A. Doug Gray was never really in any of the
meetings that we were part of to express that opinion. And
I was just proceeding based on the plans that we were
receiving and the input that we got from the meetings.
There was never any discussions at meetings that were quite
that definitive about Burlington.
Q. So you have never heard Mr. Gray make a
statement like that?
A. No, I have not.
Q. Have you ever heard anyone from Ezralow
make a statement similar to that?
A. No, I have not
Q. Well, the bulletin memo on the April 13,
2000 Meeting Minutes that says that Scott Dinovitz will
revise a Specific Plan to include Burlington, is your
recollection refreshed any as to whether it was the city's
request or whether Scott Dinovitz was just going to do it?
A. No.
Q. If Scott Dinovitz or Ezralow was going.to
include Burlington in the SP 13, why hadn t they until that
point?
156
MR. WATSON: That calls for speculation.
MR. COHEN: That's true.
Q. BY MR. COHEN: Why do you think they
hadn't until that point?
A. Up until that point I think that they were
developing site plans and proceeding down a certain trail
with what they thought maybe would be the ultimate
configuration of the mall. And at a certain point it was
decided that they didn't feel comfortable enough with a
certain plan to apply for a conditional use permit
approval; and that the Specific Plan was therefore just
going to be a zoning document
And, again, as I stated previously, at the April
13 meeting Howard Zelefsky addressed the importance of
making the Specific Plan document flexible and including
several plans so that at the point a site plan was nailed
down, the Specific Plan did not have to go back for a major
modification.
Q. I'd like to mark as Exhibit 232 a March 16,
2000 transmittal letter from Carlos Norvani to Alia.
Are you familiar with this document.
(Plaintiffs Exhibit 232 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Yes, I'm familiar with it.
157.
12 (Pages 154 to 157)
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BURLINGTON V. HUNTINGTON CENTER
1 Q. Whose Carlos Norvani?
2 A. He is out of the engineers with Hall &
2
3 Foreman, one of the civil engineers.
3
4 Q. Do you know if they are doing -- what work
4
5 exactly did Hall & Foreman do for Ezralow regarding this
5
6 project?
6
7 A. They basically looked at the backbone
7
8 infrastructure plans for the mall and specifically the
8
9 water system, sewer system, and storm drain system.
9
10 Basically what that system is today as it exists today, and
10
i l then with the redevelopment of the mall what the proposed
11
12 needed improvements or changes to those existing facilities
12
13 would need to be.
13
14 Q. Can you identify all the consultants that
14
15 you know of that Ezralow was working with regarding this
15
16 project?
16
17 A. Hall & Foreman was the civil engineer. The
17
18 architects were GFA. The traffic engineer.
18
19 Q. Linscott?
19
20 A. Linscott, Law & Greenspan. And --
20
21 Q. EDAW?
21
22 A. EDAW. And the city.
22
23 Q. But the city wasn'ttheir consultant?
23
24 A. Yeah, they weren't their consultant
24
25 . Q. Anyone else that you know of?
25
158
1
A. Their attorneys.
1
2
Q. And their attorneys. Do you know if they
2
3
prepared any written work, Hall & Foreman, any design plan
3
4
or any schematics?
4
5
A. Schematic plans, or documents, written
5
6
text?
6
7
Q. What documents do you know that they
7
8
prepared?
8
9
A. Well, there is calculations that, written
9
10
calculations that are part of the infrastructure plans to
10
11
support, you know, the calculations basically or estimates
11
12
of future water demands and future storm drainage flows,
12
13
future sewer flows which would then support the sizing of
13
14
the future infrastructure plans. And so I believe there
14
15
was written documentation that would have been submitted to
15
16
the city and Ezralow along with the plans.
16
17
Q. Was it submitted to you, EDAW?
17
18
A.. If it's not in our flies, then it was not
18
19
submitted..
19
20
Q. Would their work have been incorporated in
20
21
the Specific Plan?
21
22
A. The plans themselves were initially to be
22
23
incorporated in the Specific Plan. And I don't believe
23
24
that they were ever finalized with Public Works because
24
25
some of the modifications would still need to occur once a
25
159
final site play was nailed down. And since a site plan was
not ever nailed down. at the Specific Plan level, it's my
understanding that these plans needed to go through further
modifications.
Q. There are two basic site plans that are
incorporated in SP 13, Are you familiar with those?
Basically the site plan that includes Burlington and the
site plan that excludes Burlington.
A. okay.
Q. I will show you.
A. I have looked at them, but it's been a
while.
Q. Basically my question is in your
experience, are these site plans of sufficient detail that
would be required for a final site plan review, or would
the site plan even need to be more detailed? Like what
exactly does a site plan, for a final site plan review what
does the site plan need to show?
A. The final site plan review is something
that is performed by city staff. So I don't feel
completely comfortable saying what the level of detail
would or would not be adequate, since a site plan review is
something that a city staff person or people would perform.
Q. And that's not the services that EDAW would
provide to Ezralow; is that correct?
160
A. That's correct.
Q. That would be something that the
architects, Greenberg Farrow and Associates would prepare?
A. The site plans, correct. And I believe
that there are application forms outlining the submittal
requirements for a site plan review.
Q. Do you know if those application forms have
been submitted?
A. No, I don't.
Q. And those would be called applications for
final site plan review? What would be the title of that?
A. Yes. It would either be conditional use
permit applications or site plan review approval, site plan
approval applications.
Q. How long does the approval process take, do
you know?
A. For site plan review?
Q. Yes.
A. I would say three to six months.
Q. Is it a quicker process than a C.U.P
process?
A. Yes, I believe so.
Q. And in a CUP process a public hearing is
required; is that correct?
A. Yes.
161
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1 Q. In a site plan review process is a site
1
2 plan required, do you know?
2
3 A. I don't think one is required. But I
3
4 believe it's at the planner's discretion. If he or she
4
5 believes it warrants a hearing, I believe it can be kicked
5
6 up to the Planning Commission.
6
7 Q. I'd like to mark as Exhibit 233, this is a
7
8 memo dated September 23, '99 to Jayna Morgan. What is
8
9 this, 233?
9
10 (Plaintiffs Exhibit 233 was marked for
t0
11 identification by the Certified Shorthand Reporter, a copy
11
12 of which is attached hereto.)
12
13 A. It's just a transmittal from Ezralow
13
14 forwarding a copy of the signed contract for the Specific
14
15 Plan update.
15
16 Q. Okay. You had to name Ezralow as an
16
17 additional insured in your E & O policy?
17
18 A. Yes, I believe so.
18
19 Q. Is that common?
19
20 A. I'm not sure if it's common. I don't
20
21 typically get involved with the contracts, but I know that
21
22 in some of the contracts that I have seen we have been
22
23 asked to name cities or applicants or developers as
23
24 additional insureds So this wouldn't have been the first
24
25 request that I have seen.
25
1
2
3
4
5
6
7
8
9
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13
14
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162
Q. In the scope of work that EDAW was doing
for Ezralow, what type of liability would even -- oh,
strike that.
I would like to mark for identification as Exhibit
234 an August 30, 1999 letter from Woodland Construction.
What is that document?
(Plaintiffs Exhibit 234 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. It's a letter from Scott Dinovitz'
secretary, I believe, transmitting a copy of the site
plan. At that time it was Site Plan No. 3. That was
probably the current site plan back in August of '99.
Q. Who is Woodland Construction?
A. To my understanding Ws. another —I don't
know if It's an entity of Ezralow, but it's another company
that —
Q. Is it possible they were an architectural
firm like GFA?
A. I don't believe so. I think that they were
another company that Scott Dinovitz, another related
company to Ezralow.
Q. Do you know if you have this site plan this
refers to?
A. I don't think we do. If I did, I would
163
JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
have provided it. Because typically the large-scale plans,
once they are outdated and replaced by a more updated plan,
we just throw them away.
Q. Do you remember looking at this Conceptual
Site Plan No. 3?
A. No. I'm sure I did look at it in August of
'99, but I can't remember what it looked like.
Q. Do you think it was prepared though by GFA?
A. I think it was probably prepared by GFA,
yes.
Q. I'd like to mark as Exhibit 235 a fax cover
sheet dated January 28, 1999 with an attachment November
20, 1998 letter from the city of Huntington Beach.
What is this document?
(Plaintiffs Exhibit 235 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. This was a copy of the Anal city comments
that were provided to Tom Jerod of Macerich on the latest
version of the Huntington Center Specific Plan.
Q. And that was for Macerich?
A. For Macerich, correct.
Q. And then you passed this along to FGF_and
to Ezralow?'
A. Correct.
164
1 Q. On Paragraph 5 —
2 A. On page?
3 Q. On Page 5, Paragraph 5, it talks about
4 Montgomery Wards. And it says, "Property owner
5 authorization for Montgomery Wards is still required to
6 evaluate the process phase two of the conditional use
7 permit."
8 With this in mind do you think Montgomery Wards
9 should have been part of the Specific Plan process that
10 Ezralow was preparing?
11 A. I'm not sure of the question you are
12 asking.
13 Q. Can you just explain what the city wants in
14 regard, or is referring to regarding what Montgomery Wards
15 being part of the phase two process. Can you give a little
16 explanation on that?
17 A. I believe what this paragraph is referring
18 to, and this was a. letter that was prepared by Jane James
19 to Tom Jerod, the prior project applicant, is that as part
20 of the application form for phase two of the C.U.P, there
21 were improvements being shown to Montgomery Wards and
22 therefore the property owner authorization from Montgomery
23 , Wards was required in order to move forward on that
24 application.
25 Q. And it's because work was being done on
165-
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I their property?
1
2 A. Property owned by them, correct. And it
2
3 indicates that If the authorization was not obtained, then
3
4 the application needed to be revised to depict improvements
4
5 on only Macerich-owned property.
5
6 Q. As SP 13 is today, it does affect
6
7 Montgomery Wards' property; is that correct?
7
8 A. I would have to review the document. I
8
9 believe there is provisions in the document if Montgomery
9
10 Wards should apply for a permit, that they would be
10
I 1 required to upgrade their architectural facades.
11
12 Q. They are not automatically required to
12
13 upgrade; as far as you know?
13
14 A. No, as far as I know.
14
15 Q. I'd like to mark as Exhibit 236 a [November
15
16 20th, 1998 letter from the city of Huntington Beach to Tom
16
17 Jerod.
17
18 What is this document -- is this the same
18
19 document?
19
20 A. Yes. I think it's a duplicate.
20
21 Q. Okay. Then I will mark for identification
2.1
22 as 236 a January 22, 1999 letter from the city of
22
23 Huntington Beach to Tom Jerod.
23
24 And what is this letter?
24
25 (Plaintiffs Exhibit 236 was marked for
25
166
1
identification by the Certified Shorthand Reporter, a copy
1
2
of which is attached hereto.)
2
3
A. It's a letter from Jane James of the city
3
4
attaching the city's latest comments on the Specific Plan
4
5
document dated December 11 of '98. And in the letter she
5
6
indicates that most of the comments are grammatical In-
6
7
nature.
7
8
"This version of the document does not contain the
8
9
city's complete recommendation for amortization schedule
9
10
for improvements to non -conforming structures such as
10
11
Montgomery Wards, the Tire, Lube, and Battery facility and
11
12
bank building. It has been difficult to ascertain the
12
13
valuation of these structures and thus difficult to
13
14
recommend amortization."
14
15
It also indicates city staff is awaiting
15
16
Macerich's response to their prior -November 20th,1998
16
17
comment letter, which you marked as --
17
18
Q.. 235?
18
19
A. Correct.
19
20
Q. Do you remember if the city was allowing.
20
21
the automotive as a permitted use, the Montgomery Ward
21
22
automotive.
22
23
A. Ia the prior Specific Plan?
23
24
Q. Yes.
24
25-
A. I don't know.
25
167
Q. I'd like to mark for identification as
Exhibit 237 a letter dated December 10, '98 to Michael L.
Lasley from Lawrence Moline.
What exactly is this document?
(Plaintiffs Exhibit 237 was marked for
identification by the Certified Shorthand Reporter, a copy
of which is attached hereto.)
A. Mike Lasley was Macerich's architect on the
prior Specific Plan and Lawrence Moline was Macerich's
landscape architect- And it was just a response to the
city's concern regarding parking lot tree selections,
specifically the certain comments that the city had made on
the landscape plan for the prior Specific Plan.
Q. Okay. And then these are the two
duplicates?
A. Yes.
MR. COHEN: Let's take a five-minute break.
(Break was taken.)
MR. COHEN: Back on the record.
Q. BY MR. COHEN: Do you know what PBR is?
A. Yes, I do.
Q. What is it?
A. Phillips, Brand, Reddick is another
planning consulting firm. And they are located in Irvine.
I started my career them. If that's the PBR you are
168
referring to, that's the PBR I know.
Q. Do you know if they had any involvement in
this project?
A. No. I believe they did not. Although in
my first deposition I mentioned that Ken Ryan, who was a
principal at PBR and recently joined EDAW, has a contract
to prepare the Edinger corridor study, redevelopment
study. And so that would be the only connection that PBR
would have had. But the contract, I believe, had not been
granted while Ken Ryan was at PBR. It was just recently
granted when he came to EDAW.
Q. I see. And did you find out anything more
about the Edinger corridor from your last deposition?
A. I have not, no.
Q. Do you maintain time sheets for the work
that you have done on this project?
A. Yes.
Q. Those weren't presented to us today?
A. No, they were not.
Q. Those time sheets go to EDAW; is that
correct?
A. That's correct. And because I am an
independent contractor, my invoices, my personal Invoices
that I present to EDAW would provide an allocation of the
amount of time that I have spent on each particular project
169
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so that they can an that for billing purposes. And then
the other EDAW staff members that are EDAW employees
maintained time sheets.
Q. I see. Does it identify telephone calls
and other reading of correspondence or writing of
correspondence?
A. No. Not on my invoices. It would just
allocate the amount of time per week. And then in the
invoices that we would submit to the Ezralow Company, we
would identify tasks performed for that billing period,
which would — sometimes if it's a conference call, it
would identify a conference call, but it does not identify
every telephone conversation on the invoice task summary.
Also, it would identify, you know, meeting
attendance, preparation of meeting minutes, and other
tasks.
Q. Well, did EDAW charge an hourly rate, or
was it a flat fee for the work that they did?
A. It was a flat fee but billed at an hourly
rate. So if EDAW didn't, if our hours did not equate to
the flat fee, they weren't billed. It was a not -to -exceed
fee.
Q. I understand.
A. But it was billed on an hourly,
monthly/hourly basis.
170
Q. See, the invoices often -- I don't care
about how much money you made. That could be all redacted
and crossed out, but alot of times invoices tend to create
a nice time line of what work took place and what
happened. And I was wondering if I could get a copy of
both your invoices and EDAW's invoices with all the amounts
crossed out, redacted.
A. Okay.
Q. Is that fine?
A. Yes, that would be fine.
Q. When do you think you could get that?
A. I would think within the next three or four
days.
Q. Do you have them on premises?
A. Yes, they are on premises. -I could request
that somebody start copying them now, but I don't know if
they would be done with them by the time you left.
Q. How many pages do you think they are?
A. Well, we started in December. I would say
probably there are seven months and each invoice would be
maybe two pages with back-up if we had reimbursable
expenses. But since you are not concerned with the amounts
and only the tasks, then it would be probably only like 15
pages of invoices with my actual invoices as well. So EDAW
invoices would be about 15 pages. So I could see if there
171
JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
1 is someone who could run copies.
2 Q. And then just redact it and then provide it
3 my office?
4 A. Right.
5 Q. And aside from you and Alia did anyone else
6 from EDAW work on this project?
7 A. An intern that we had, a part-time intern,
8 Khara Covington, may have spent some time on the project
9 But she's no longer with EDAW.
10 Q. What did she do?
11 A. Just, you know, faxiug and more
12 administrative tasks.
13 Q. Clerical stuff?
14 A. Clerical, yes.
15 Q. And regarding this project did you have to
16 report to someone within EDAW as to what you were doing?
17 A. Typically I provided updates to Don Smith,
18 who is the principal In charge, regarding the status of the
19 project And be — because, again, I am an independent
20 contractor, he approves my invoices for payment He signs
21 off on all my invoices.
22 Q. Anyone else?
23 A. No.
24 Q. Were any of those reports or updates in-
25 writing, or are those just —
172
I A. Verbal.
2 Q. And all of the documents that you provided
3 today, aside from the invoices that you will send me, these
4 are all the documents that are in your file regarding this,
5 regarding the Huntington Center Mail; is that correct?
6 A. Regarding the Huntington Center Mall for
7 Ezralow. Again, I think I may have mentioned in the prior
8 deposition that the files when we were under contract to
9 Macerich are in dead storage. And I did not retrieve those
10 dead files out of storage to make copies of them.
11 Q. But EDAW still main those?
12 A. Correct. They are not on the premises
13 though.
14 Q. But all of the Macerich files that were
15 actually used or utilized in the Ezralow project has been
16 presented?
17 A. Yes.
18 Q. Have you reviewed your deposition from
19 August 7, 2000?
20 A. I just started reviewing it I'm not
21 complete.
22 MR. COHEN: I have no further questions.
23 MR. WATSON: I don't have any.
24 MR. COHEN: I'll propose a stipulation. Well
25 relieve the court reporter of her duties. The court
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IAYNA MORGAN, VOL.2, 08.30.00
BUki6INGTON V. HUNTINGTON CENTER
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reporter will prepare the transcript. The transcript will
then be submitted to Jayna Morgan for her review. Shell
have 30 days to review the transcript and make whatever
changes are necessary. The transcript will then be signed
under penalty of perjury. Should the transcript be not
signed, lost, or misplaced, then a certified copy of the
original could be used in its stead.
Is that agreeable?
MR. WATSON: Yes, that's fine.
MR. CORN: That's agreeable to you?
THE WITNESS: Yes, it is.
(Deposition adjourned at 11:45 a.m. Declaration Under
Penalty of Perjury attached hereto.)
174
REPORTER'S CERTIFICATE
I, MARY L. LOAIZA, CSR #7261, Certified Shorthand
Reporter, certify:
That the foregoing proceedings were taken before me at
the time and place therein set forth, at which time the
witness was put under oath by me;
That the testimony of the witness and all objections
made at the time of the examination were recorded
stenographically by me and were thereafter transcribed;
That the foregoing is a true and correct transcript of
my shorthand notes so taken.
I further certify that I am not a relative or employee
of any attorney or of any of the parties, nor financially
interested in the action.
I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and
correct
Dated this 13th day of September, 2000.
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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due 127:1
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duplicate 166:20
duplicates 168:15
duties 173:25
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each 169:25 171:20
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
IAYNA MORGAN, VOL.2, 08.30.00
BUkL.INGTON V. HUNTINGTON CENTER
151:5 165:20
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JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
IAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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]AYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
)AYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
JAYNA MORGAN, VOL.2, 08.30.00
BURLINGTON V. HUNTINGTON CENTER
Page 185
114:1
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90071-2040112:12
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]ILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787 -
JAVID C. BIGGS, VOL-3, 09.11.0a
BURLINGTON V. HUNTINGTON-
I
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
APPEARANCES OF COUNSEL:
2
FOR THE COUNTY OF ORANGE
2
3
FOR THE PLAINTIFF:
4
BURLINGTON COAT FACTORY WAREHOUSE)
3
OF HUNTINGTON BEACH, INC., a )
AVIV L. TUCHMAN & ASSOCIATES
5
California Corporation, )
4
BY: AVIV L. TUCHMAN, ESQ.
3435 Wilshire Boulevard
6
Plaintiff, )
5
30th Floor
Los Angeles, California 90010
7
vs. ) Case No. OOCCO6309
6
78
(213) 385-M
FOR THE WITNESS DAVID C. BIGGS:
8
HUNTINGTON CENTER ASSOCIATES, )
N
BY: R. BRUCCEE TE PER ESQ.
a Delaware Limited Liability ) VOLUME Ill
9
515 South Figueroa Street
9
Company; EZRALOW RETAIL PROPERTIES,) (Pages 325-398)
Suite 1850
a Delaware Limited Liability )
10
Los Angeles, California 90071
10
Company; THE EZRALOW COMPANY, a )
(213) 617-0408
Delaware Limited Liability Company,)
11
11
and DOES 1 through 10, inclusive,)
FOR THE DEFENDANT'S:
)
12
12
Defendants. )
HOLLAND & KNIGHT LLP
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BY: MARK S. SHIPOW, ESQ.
13
633 West Fifth Street
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14
Twenty -First Floor
1 5
Los Angeles, California 90071-2040
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(213)896-2400
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DEPOSITION OF:
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19.
DAVID C. BIGGS
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MONDAY, SEPTEMBER 11, 2000, 9:10 A.M.
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= -
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�g22
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S�'�
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325
_: ___ -- - - 327
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1
INDEX
2
FOR THE COUNTY OF ORANGE
2
Examination By: Page
3
MR TUCHMAN--------------- 329
4
BURLINGTON COAT FACTORY WAREHOUSE)
3
OF HUNTINGTON BEACH, INC., a )
4
EXHIBITS
5
California Corporation, )
5
Page Introduced
Plaintiffs Description and Marked
6
Plaintiff, )
6
215 3-page Declaration of 330
7
vs. ) Case No. OOCCO6309
7
David Biggs
8
216 54-page Redevelopment Plan 335
8
HUNTINGTON CENTER ASSOCIATES, )
for the Huntington Beach
a Delaware Limited Liability ) VOLUME III
9
Redevelopment Project
9
Company; EZRALOW RETAIL PROPERTIES,)
10
a Delaware Limited Liability )
INSTRUCTED NOT TO ANSWER
10
Company; THE EZRALOW COMPANY, a )
11
Delaware Limited Liability Company,)
PAGE LINE
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and DOES 1 through 10, inclusive,)
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355 9
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Defendants.) )
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374 10
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376 10
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The deposition of DAVID C. BIGGS, taken on behalf
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of the Plaintiff, before Mary Kelly, Registered
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Professional Reporter, Certified Shorthand Reporter, CSR
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No. 11519, for the State of California, with principal
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office in the County of Orange, commencing at 9:10 a.m.,
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Monday, September 11, 2000, at the Law Offices of Aviv I_
23
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Tuchman & Associates, located at 3435 Wilshire Boulevard,
24
25-
30th Floor, Los Angeles, California.
25
326
328
1 (Pages 325 to 328)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
1 Monday, September 11, 2000, 9: 10 a.m.
1
THE WITNESS: Could you repeat the question.
2 Los Angeles, California
2
MR. TUCHMAN: Please read the question back.
3
3
(Whereupon the record was read.)
4 DAVID C. BIGGS
4
MR. TEPPER: When he says "independent," he means
5 was called as a witness by and on behalf of the Plaintiff,
5
independent of any advice given to you by our office or the
6 and having been first duly sworn by the Certified Shorthand
6
office of the city attorney.
7 Reporter, was examined and testified as follows:
7
MR. TUCHMAN: That's correct.
8
8
THE WITNESS: Well, my understanding was it was asked
9 EXAMINATION
9
for by the council for Huntington Center Associates in
10 BY MR. TUCHMAN:
10
relationship to litigation they were in.
11 Q Mr. Biggs, good morning.
11
BY MR. TUCHMAN:
12 A Good morning.
12
Q Okay. By the way, has the 33433 report been
13 Q Do you remember the admonitions relative to being
13
completed?
14 under oath?
14
A No, not at this point.
15 A Yes.
15
Q What is exactly a 33433 report?
L6 Q Okay. Have you had an opportunity to review
16
A It's a report required statutorially under the
17 Volumes 1 and 2 of your deposition?
17
Health and Safety Code if a redevelopment agency is
18 A Yes, I have.
18
proposing to enter into an owner participation agreement or
19 Q And have you made corrections?
19
a disposition or development agreement for the
20 A Yes, I have.
20
redevelopment of property.
21 Q And you've provided them to counsel?
21
Q And does the 33433 report have to be completed
22 A Yes,
22
prior to entering into the OPA?
23 MR. TUCHMAN: Okay. Recently, you provided a
23
A It has to be available at the time that the legal
24 declaration. I'm going to ask the reporter to mark for
24
notice for public hearing on an OPA or DBA is available.'.
25 identification as Exhibit 215. This is the declaration of
25
So, yes, it has to be available at least 14 days pttior to
329
I
David Biggs. Take a look at that. And for the record,
1
2
that is a declaration dated August 4, 2000.
2
3
(Whereupon Exhibit 215 was marked for
3
4
identification by the Certified Shorthand Reporter.)
4
5
BY MR. TUCHMAN:
5
6
Q Do you recognize Exhibit 215?
6
7
A Yes, I do.
7
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Q That's your signature?
8
9
A Yes, it is.
9
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Q And you signed that on or about August 4, 2000;
10
11
is that correct?
11
12
A Yes.
12
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Q Do you know why you signed this declaration?
13
14
A I believe so.
14
15
Q Why? —_
t5
16
A Why? I was asked to do so by our special
16
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counc7:
17
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Q Do you have any independent understanding as to
18
19
why you were asked to sign this declaration?
19
20
MR. SHIPOW: I'm going to object to questions about
20
21
this declaration. The deposition being taken today is in
21
22
the case of Burlington versus Huntington Center Associates
22
23
and this declaration was filed in a completely different
23
24
case.
24
25
MR. TUCHMAN: You can answer the question.
25
330
331
the public hearing,
Q And that's Mr. Rabe that's working on that?
A Yes, he is.
Q Do you know when hell be completing the 33433
report?
A Hopefully, sooner rather than later. So
sometime, I imagine, in September. Probably sometime still
in September.
Q And has the OPA been completed?
A No.
Q What's the status of that?
A We're still negotiating points on the OPA.
Q What points are you still negotiating?
A A variety of points related to specific language
in the OPA.
Q Anything related to Burlington?
A No.
Q Have you determined the gap?
A Yes, we have.
Q What is the gap?
MR. TEPPER: No. I'm going to object on the grounds
that that would invade areas of privacy that are still the
subject of work product and attorney -client privilege.
BY MR. TUCHMAN:
Q Was the gap within the estimate that you provided
332
2 (Pages 329 to 332)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
AVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
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at your last deposition?
A Within the range, yes;
Q Now, it's 10 to $20 million?
A I don't recall. I would have to look at the
transcript
Q Has it been decided how the gap will be met, how
it will be funded?
A Yes, basically. But also I described that in my
last deposition, so --
Q Well, in last deposition you said sales tax,
property taxes, and bond issuances, you may have said a few
other things.
But has it been decided -- has it been narrowed
down or decided exactly how the money will be raised to
fill the gap?
A No, different than what I described last time.
Q Has anyone advised you that the raising of
property taxes may be violative of Prop 13?
A There is no raising of property taxes.
Q In your last deposition, you mentioned that you
would be able to raise money to fund the gap through
property taxes.
Am I correct or incorrect?
A No, you're incorrect in your understanding of how
tax increment works. The tax rate is the same on the
333
property. It's just the increase in value due to
improvements made that results in more taxes being
generated there is no increases in taxes there is purely an
increase in value.
Q So when you say the "property taxes," you mean to
the actual redeveloped parcel, not for homeowners in
Huntington Beach?
A No. No. Just for the redevelopment parcel.
Q Okay. Do you have a date of estimated completion
of the OPA?
A It would be sometime soon now. You know, it
depends on when the attorneys get it done or not, so — you
know, it's really not completed until — you know, signed
by the outside — the other parties. So, I don't know when
that will be..
Q In September, do you estimate?- October?
A I hope sometime in September. But it depends on,
you know, when we get it, so.
Q- Okay. Have you seen a draft of it?
A Certainly.
Q And have there been multiple drafts?
A Yes.
Q When you refer to Exhibit 215, "the plan" -- I'm
looking at paragraphs 4 and 5 -- is the plan that you're
referring to Exhibit 216?-
334
1 A I guess without comparing it to the one I have in
2 my possession, I would say so.
3 (Whereupon Exhibit 216 was marked for
4 identification by the Certified Shorthand Reporter.)
5 BY MR. TUCHMAN:
6 Q And do you know who Rosenow, Spevacek is?
7 A Yes. They're a consultant group that we hired to
8 do a plan amendment merger in 1995, '96.
9 Q Do they still do work for the city?
10 A We just retained them to do a new redevelopment
11 plan adoption for part of the city, yes.
12 Q And does that — this new adoption that you're --
13 strike that.
14 This new project that you have them working on,
15 does that have anything to do with Huntington Center?
16 A No.
17 Q What was the scope of Rosenow's assignment with
18 respect to Exhibit 216?
19 A This was done, as I mentioned, for a proposed
20 merger and amendment. We previously had five separate
21 redevelopement project areas and they were merged into one
22 in 1996, and we also made some other updates to the
23 redevelopment plan.
24 Q Now, the merger was of the five areas which
25 include the Huntington Center, is that correct?
335
1 A Yes.
2 Q And this was done in 1996; am I correct?
3 A Yes.
4 Q Take a look at your declaration. I have a few
5 things highlighted. Paragraph 7, it says, "Among other
6 things, the analysis" — and that's economics — "involves
7 estimating the rate of return on the proposed investment."
8 What does that mean, "Estimating the rate of
9 return on the proposed investment"?
10 A Well, we discussed this in my last deposition, so
11 I'm — if you would like me to go back, I'll find the
12 section there.
13 Q I'm not sure that you did.
14 A Yes, I did. I just reviewed them so I do recall
15 specifically.
16 MR. TEPPER: Before we get into undue colloquy here,
17 I'd like to point out to Mr. Tuchman that this is the ninth
18 hour of his deposition that's occurred on two other
19 separate occasions and that this deposition will be ending
20 at 10:45.
21 The witness was here at 8:30. Nobody else was
22 here at 8:30. And anything further then 10:45 will be
23 obtained by way of court order.
24 Subject to that, you may answer the question or
25 any other question that is posed to you between now and
336
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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10:45.
THE WITNESS: But if I can -- just a moment. I don't
want to contradict anything I said in the prior
deposition —
MR. TEPPER: That's fine.
THE WITNESS: -- so I'm not going to answer questions
I've already been asked and answered.
MR. TEPPER: That's fine. If you want to look at the
deposition and find where you have already answered the
question, go ahead, but it's counsel's time, and I don't
want to short him any more.
MR. TUCHMAN: Just a brief response. I don't want to
get into any arguments. The reporter was maybe 15 minutes
late. As a courtesy we waited for Mr. Shipow. And I came
in promptly upon Mr. Shipow's arrival. From now on, if you
don't want us to wait for counsel, we won't.
And as to 10:45, you know, third day we always
wanted to complete the deposition and we have tried to
complete the deposition. We wanted to complete it last
Friday but apparently Mr. Biggs forgot about it that.
Definitely caused me some lost time. If you want to argue
about it, you can.
MR. TEPPER: It's your nickel. '
THE WITNESS: As you didn't show the first day, I was
up here in L.A. for the deposition, so --
337
MR. TEPPER: Let's focus on -- let's focus on
questions so we can get out of here.
THE WITNESS: If you would like me to look at the
transcript, I can find the section. But I did ask and
answer that question previously.
MR. TUCHMAN: Also, for the record, on the first day
that was your counsel's error, not ours.
BY MR. TUCHMAN:
Q When you say "estimating the rate of return," is
the rate of return the return for the city or the return on
the investment for the developer?
A I believe I asked and answered that previously.
Q Okay. Here is your depositions, go right ahead.
A Okay.
MR. SHIPOW: Do you have the Fey word index, Counsel?
Maybe that would help speed things up.
MR. TUCHMAN: It's attached to the transcripts.
THE WITNESS: Page 60, starting at line 13.
BY MR. TUCHMAN:
Q Your answer is -- the question is:
"And the gap analysis means if they might need
financial assistance to make sure the project gets done?
Answer: "Right. If you look at their very
simple explanation is when you talk about development
economics being relatively simple math, you've got certain
338
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
costs associated with developing a project, land and
construction, interest, other professional fees. You take
the total anticipated income from the project and using
some generally accepted capitalization rates, you look at
how much cost the income will support in giving the
developer a reasonable return on their investment. If the
income doesn't support the reasonable cost, then that's a
8 gap."
9 Now, with respect of estimating the rate of
10 return on the investment, why is the city concerned with
11 what the rate of return is for the developer?
12 A Because that goes to what the gap might be.
13 Q And when you estimate the rate of return based on
14 a gap, how many years our projection do you count on?
15 A Well, you know, typically, a Pro Forma would be
16 run anywhere between 25 and 30 years as a typical review.
17 Q By the way, you mentioned that you reviewed your
18 two depositions prior to coming to your deposition today,
19 did you review any other documents in preparation for your
20 deposition today?
21 A No.
22 Q When you arrived at that gap figure, did you
23 arrive -- did you compute values of any of the leases of
24 the property?
25 A No.
339
1 Q Did you compute any value pertaining to
2 Burlington?
3 A No.
4 Q So you felt you could complete your analysis of
5 what the gap would be without any regard to Burlington's
6 numbers?
7 A Yes. We just generally looked at what the
8 estimated costs were in a range of building out a shopping
9 center of approximately a million square feet and what the
10 rents generated might be to the extent there is any issues
11 associated with Burlington then that's on the developer's
12 nickeL
13 Q And the gap that you've arrived at that's the
14 cap? There is a maximum amount that the city or the
15 redevelopment agency will invest in the project; is that
16- correct?
17 A Yes.
18 MR. SHIPOW: I'm going to object to this whole line
19 of questioning as being entirely outside the scope of this
20 lawsuit. There aren't any issues in this lawsuit that I'm
21 aware of that have anything to do with the gap in the
22 redevelopernent analysis.
23 BY MR. TUCHMAN:
24 Q Now, has the rate of return been calculated?
25 A A rate of return is utilized in the analysis.
340 -
4 (Pages 337 to 340)
JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
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Q What is that rate of return?
MR. TEPPER: Objection. That is still within work
product and attorney -client privilege.
BY MR. TUCHMAN:
Q Do you know what the estimated rate of return is?
MR. TEPPER: Same objection.
BY MR. TUCHMAN:
Q Can you calculate the gap without knowing the
rate of return?
A No, not usually. But it would be a generally
accepted rate of return for the type of nature of the
project contemplated.
Q That's a dollar amount that rate of return or a .
percentage?
A It's a percentage.
Q Okay. Thanks. What valuations of any assets did
you have to determine the gap?
A Valuation of any assets?
Q Correct.
A Could you clarity?
Q Structures, leases, any holdings, land value?
A' Well, we knew the value of the property that the
developer paid for their holdings. I don't recall if Jim
in his analysis if there was a — I think we — there is
a -- well, gosh, I would have to go back and look at it. I
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don't recall if there was any specific factors associated
with the main cost factors or the actual cost of
constructing the facility, so —
Q Do you need any additional asset valuations to
complete the numbers in terms in including the rate of
return for your OPA?
A It depends on — I'm trying to think if we have
anything we need or we don't need. I have to go back and
check with Jim. I think he's got, you know, basically
place holder numbers for anything he needs. And, again,
depending on how the deal is structured we may or may not
need it depending on who is assuming the risk in the
transaction, so —
Q What does that mean, "assuming the risk in the
transaction"?
A Well, if we've capped our costs, you know, we can
use; you know, very rough estimates of, for example,
demolition, construction, off -site improvements,
acquisitions, if there is any, and if we capped our cost it
really doesn't matter if the estimates are right or wrong
because the developer carries a risk if they're right or
wrong.
Q As you sit here today, are you aware of any
valuations of any assets of the Huntington Center of any
type that you need to go forward with the OPA?
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1 A To go forward with the OPA. not necessarily.
2 Potentially, implementation of the OPA, you know, but that
3 remains to be seen yet.
4 Q I'm sorry. I didn't hear that word, "potentially
5 a" --
6 MR. SHIPOW: Implementation of the OPA.
7 THE WITNESS: An implementation of the OPA but that
8 remains to be seen yet.
9 BY MR. TUCHMAN:
10 Q What does implementation of the OPA mean?
11 A It means after it's approved, the developer has
12 to move forward with the project on the site.
13 Q Have you determined if the redevelopment is
14 viable?
15 A It Is viable? Some form of redevelopment is
16 viable, yea.
17 Q Have you determined if the development is viable?
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19• A The redevelopment is viable? Some form of
20 redevelopement Is viable, yes.
21 Q Have you determined if the redevelopment that is
22 contemplated by the OPA .you're entering into is viable?
23 A Well, the OPA is not that specific as to the
24 particular level of redevelopment. But there is a
25 redevelopment formula or number of scenarios that would be
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1 viable. Again, an OPA doesn't necessarily tie the
2 developer down to one specific scope of development.
3 Q Is the OPA that you are currently negotiating,
4 does it mirror or is it the same type of redevelopment as
5 submitted in connection with SB 13 that we've seen?
6 A Sure. SB 13 would allow any number of
7 development scenarios to take place within its context.
8 Q So that's what is contemplated under the OPA;
9 correct?
10 A The project has to be developed that it would be
11 in compliance with the specific plan.
12 Q And has it been determined that the
13 redevelopement is viable so long as it's within the context
14 of SP 13 or its variations?
15 A Not entirely. It depends on the ultimate scope
16 of development When you talk about viable, from our
17 perspective it's viable in that you know entering into an
18 OPA. But whether it's not as viable from the developer's
19 perspective, that remains to be seen. We do have concerns,
20 you know, about the type of tendencies leasing to
21 co -tenancies, those kinds of things. But that will only
22 play out with time. That doesn't have to be resolved at
23 the time an owner participation agreement is entered into.
24 Q Why are you concerned about tenancies or the
25 types of tenants?
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t A Because it's a very different type of project.
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2 Depending on the kind of tenants that are there. If you've
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3 got a shopping center -- this is just illustrative -- that
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4 has a Sacks Fifth Avenue, it's a different kind of shopping
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5 center from a shopping center that has a Wards, for
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6 example.
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7 Q Are you aware of a tenant list?
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8 A There is no, quote, unquote, tenant list. I know
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9 the developer has letters of intent with certain tenants
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10 and we use illustrative kinds of tenants, but until they
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11 actually sign leases, I wouldn't count on any particular
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12 tenants being in place.
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13 Q Are there any leases that have actually been
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14 signed?
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15 A I don't know if there are or not at that point.
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1.6 Q Who are the tenants who have signed letters of
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17 intent?
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18 A I haven't seen letters of intent myself, so I
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19 don't know particularly who those are.
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20 Q Well, you have information?
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21 A Pardon?
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22 Q You have information as to who signed letters of
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23 intent?
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24 A I can illustrate tenants who have signed letters
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25 of intent, but I haven't seen the letters of intent myself.
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Q I understand you may not have seen the letters of
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intent, but from any source have you learned who the
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tenants are that have signed letters of intent?
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A I know who some of the — I've heard who some of
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the tenants are who signed letters of intent.
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Q Who?
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A Century Theaters would be one example. Let's
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see, Restaurant Ruth Chris — Chris Ruth Steakbouse. Let's
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see —
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MR. TEPPER: Who is Ruth Chris?
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THE WITNESS: Ruth's Chris.
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MR. TEPPER: Yeah.
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THE WITNESS: I think California Pizza Kitchen.
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Containers Stores.. I don't remember one of those.
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_which
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Q You mean like Crate And Barrel?
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A No. Like Hold Everything or the Container Store,
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something like that. Let's see, a couple other
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restaurants. Some softgood retailers. Abecrombie & Fitch
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I think is one that's been mentioned. Woman's fashion.
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That kind of thing.
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Q What two restaurants?
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A A few restaurants. Let's see, I'm trying to
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think. Buca De Pepe. Don't ask me to spell it. I don't
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know.
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
Q I wasn t going to.
A Some more food court kind of things, but I don't
recall the specific names.
Q You said two other restaurants, one was this Buca
place, what was the other place?
A That's all I can recall.
Q Any other retailers?
A Not that I can recall specifically.
Q How many theaters for Century Theaters.
A I don't recall the number of screens.
Q Now, this Century Theaters is now in lieu of
Edwards because Edwards backed out?
A Actually, I think the Edwards' lease was
cancelled quite a while ago given their financial
circumstances.
Q Do you know when it was cancelled?
A No, not specifically.
Q Are you aware there have been discussions with
Costco?
A With Costco? No.
Q Yes.
A No, not for this site that I'm aware of.
Q Any site in Huntington Beach?
A We've been talking with them about two sites, one
at Edinger and Goldenwest which is on the college campus
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and one at Goldenwest and Garfield.
Q And you have not -- you're not aware of any
discussions by you or Ezralow with Costco relative to
coming into the crossings?
A No, I'm not aware of any discussions Ezralow has
had. I don't think we have had discussions with Costco
regarding.-- I think they view this as being too close to
their other store.
Q Okay. Now, have you discussed Burlington at all
with Ezralow since July 28 I think it is?
A Well, yes, we had a meeting with Btirtington and
Ezralow towards the end of August.
Q And that was attended by you and Mr. Silver?
A Yes.
Q You were at the meeting for how long?
A I was there for about the first hour I think.
Q And who else was present?
A The CEO of Burlington and then two other
gentlemen, Randy and -- I forget their other names -- and
Doug Gray and Ezralow.
Q Prior to that meeting, did you have any
discussions with Ezralow?
A Not that I specifically recall. Other than
getting ready for that meeting.
Q What did you do to get ready for that meeting?
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
1 MR. SHIPOW: I'm going to object. I believe that that
2 was the settlement meeting.
3 THE WITNESS: It was.
4 MR. SHIPOW: I'm going to object. As far as I know
5 that meeting was protected by a written settlement
6 agreement among all the parties.
7 MR. TUCHMAN: I agree, but I'm asking him what he did
8 to prepare for the meeting.
9 MR. SHIPOW: It doesn't matter whether it's in
10 preparation for or actual attendance at that meeting. That
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It meeting was held solely under the guise of a settlement
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12 discussion and is specifically protected again by a written
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15 Q When was the last time you had any conversation
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16 with anyone from Ezralow?
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17 A Let's see. Today is Monday. We had our weekly
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18 negotiations last week on Thursday.
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19 Q Those are every Thursday?
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20 A Every Thursday.
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21 Q Since July 28, have you been meeting with the
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22 Ezralow people every Thursday?
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23 A Probably pretty much, depending on if I'm in town
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24 or out of town or if a meeting needs to be rescheduled.
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25 Q What happened at the last meeting?
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t A Let's see, last meeting we were going over
2 language proposed in the participation agreement, talking
3 about timing to complete the 33433 report and other
4 documents to move the OPA forward to a public hearing.
5 Let's see, that was pretty much the gist of the meeting.
6 Q You mentioned there was a 33433 report discussing
7 when it was to be completed and other documents, what were
8 these other documents?
9 A You have to have a reuse appraisal and a summary
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10 of the disposition and development agreements. And talked
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11 about dratting the legal notice that would have to go into
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12 the paper to set the date for the joint public heating.
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13 What other documents? Those are pretty much the documents
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14 that are required to consider the owner participation
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15 agmemenL
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16 Q Has a target date been set for when you want to
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17 have this joint hearing?
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18 A Well, as soon as we know we have a signed
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19 disposition and development agreement, we'll get the legal
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20 notice to the newspaper and then it will occur, you know,
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21 depending on that time and our council meetings hopefully
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22 October or November at the latest, so —
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23 Q Are you trying to complete this before the
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24 election? '
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25 A Specifically before the election, no, not
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necessarily. But you know, considering we've been trying
to get it on an agenda since May, June, July originally, we
gave ourselves 60 days to negotiate it it's been longer
than that.
Q Do you have a date in mind that you want to set
if for?
A Hopefully, it would be sometime in a council
meeting in October. So, you know —
Q Now, are you using you said you need a summary of
the disposition — a summary of the DDA?
A Of the OPA. Sorry.
Q You re using them interchangeably?
A Right. Some transactions is a DDA some is OPA.
In this instance, it's an owner participation agreement.
Q You mentioned reuse appraisal, what is that?
A Again, that's one of the — a reuse appraisal is
where, in effect, the — our consultant Keyser, Marston
establishes that given the restrictions on the property
that are imposed under the owner participation agreement
what is the value of the interest being conveyed by the
agency if there is any or with the conditions, covenants,
and restrictions we put In place such as on land use and
those types of things.
Q Is the agency providing any assets or land to
this project?
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A May or may not be. That hasn't been determined
yet. It could be. You know, quite often we also acquire
an Interest in the property in the forms of conditions,
covenants, and restrictions. So that is also addressed in
the 33433 report, the impact of those on the property.
Q When you say — you said two other things, draft
legal notice and summary of — and it really should be OPA
is the summary just something that is put in the agenda.
Why do you need a summary?
A It's required under state law. So, yes, it is
something that goes to the council.
Q What other documents did you discuss that need to
be drafted whether they're for the OPA or not?
A Those are pretty much the documents that need to
be done this is the topic of the meeting.
Q Who else was present last Thursday?
A Let's see:
Q I'm sorry. Which I believe was September 7th.
A Brian Ezralow, Jim Hughes, Rebecca Casey — I
forget her new married name, it's in the transcript
somewhere — Mark Pickel.
Q Seidel, isn't it?
A Seidel would be Rebecca Casey -Seidel or something
like that. Then myself, Guster An, Murray Cane, and Jim
Rabe. I think that was it.
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Q How long did the meeting last?
A Let's we, ob, about — I got there about
20 minutes late, so it finished just before 3:00 o'clock.
So it was about an hoar and 10 minutes by the time I
arrived.
Q What else was discussed at this meeting?
A Basically what I outlined there they spent a lot
of time going over. Afterwards, I think, Murray and Jim
spent time going over some language changes to the owner
participation agreement. We had a few business points we
still had to discuss while I was there.
Q When you say "him," you mean Jim Hughes?
A Jim Hughes, yeah.
Q What business points?
A Particular business points? Generally, I can
describe them. We were talking about —
MR. SHIPOW: I'm going to object as calling for
information that's the subject of confidential business
negotiations and would constitute proprietary information.
MR. TEPPER: I would join in that objection. You can
discuss general business terms without getting to the
particularity.
THE WITNESS: We were focused -- a lot of it had to do
with as described previously anticipated developer will
advance all the costs associated with the project. We will
353
repay them that gap -- an amount that is defined as a gap
over a period of time from project based revenues. One of
the options we have is to issue community's facility
district bonds to repay that as a lump sum early on. And
we were discussing some of the terms associated with
formation of the community facility's district and how that
would work.
BY MR. TUCHMAN:
Q Anything else?
A Not that I specifically recall.
Q Was there any disagreement at that meeting?
A Oh, sure. There is always disagreement. That's
why we were still discussing the points.
Q Now, besides the advance of the cost of the
repayment of moneys with respect tatee gap, were there any
other points of contention?
A An exact form of guarantees for project
completion. Let's see --
Q You wanted it stronger, they wanted it weaker?
A Certainly.
Q Okay. Anything else?
A Not that I recall specifically.
Q Well, do you recall anything generally?
A No, not -- I'm -- those were the main topics of
discussion.
354
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
1 Q Did you discuss Burlington at that meeting?
2 A We discussed a follow up to our prior meeting,
3 yes.
4 Q And what does that the follow —
5 A To the settlement meeting we had had.
6 Q Okay. And did you discuss anything besides the
7 settlement at that meeting?
8 A No.
9 •• Q What was said regarding the settlement?
10 MR. SHIPOW: Objection. Calls for information that is
11 protected by the specific terms of the letter agreement
12 that was reached between party as well as by the general
13 provisions of the Evidence Code and on behalf of Ezralow 1
14 would request that the witness not answer these questions.
15 MR. TEPPER: I join the objection. Don't answer them.
16 BY MR. TUCHMAN:
17 Q What was discussed regarding Burlington that did
18 not concern the settlement discussions as of September 7th?
19 A Nothing.
20 Q Now, the last meeting that you had, did you have
21 a meeting on Thursday August 31?
22 A Probably. I don't recall specifically.
23 Q Do you know what how long the meeting tasted?
24 A They're scheduled an hour and a half So
25 typically, they run that or a little bit less,
355-
1 Q What was discussed at that meeting?
2 A Same kinds of things. We were working on the
3 owner participation agreement terms.
4 Q Was any progress made between the 9-31 meeting
5 and the 9-7 meeting?
6 A I believe so. Because Murray Cane and Jim Hughes
7 tend to, you know, talk about the more legal -oriented
8 points and drafting of language. So, you know, when we
9 usually come back, there is a red line version that
10 addresses the changes that have been made in the interim.
11 Q What was discussed on August 31 besides the OPA
12 terms?
13 A I don't recall specifically.
14 Q Was Burlington discussed at that meeting?
15 A I think, again, probably just in the context we
16 had our meeting with Mr. Nesley and we just discussed
17 generally how that went.
18 Q Anything besides the settlement discussions?
19 A No, not that I recall
20 Q Did you have a meeting on Thursday August 24?
21 A Without having my calendar in front, of me — I
22 think we had the last few meetings. Sometimes they end up
23 being cancelled, but I don't recall specifically if that
24 one had -- if we had that one.
25 Q I can tell you since the 28th, there has been
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A Veritext Company- 800.649.8787 .
)AVID C. BIGGSr VOL.3, 09.11.00-
BURLINGTON V. HUNTINGTON
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August 3, August 10, August 17, August 24.
Are you aware if you had five meetings in August
or four?
A I'd have to go back and check. You know,
depends. Sometimes I'm out of town. I may not always
attend them. Sometimes I schedule conflicts. I didn't
bring - I only have my future calendar with me.
Q Was there a meeting on August 3?
A If there were meetings on those dates, it would
have been the same general tone and tender we've been
working on the owner participation agreement either
reviewing specific drafts or specific deal terms. Mostly
related to things, for example, schedule performance
issues, you know, when are they going to start construction
that was a topic of discussion at one of the meetings.
When would they start demolition, what would be - what
would be completion kind of things. Usually those are
crafted in 24 months after they start. Those kinds of
19 dates.
20 Q Have you determined or discussed when demolition
21 will commence?
22 A Yes.
23 Q When is that?
24 A I don't recall specifically. I think if you -
25 well, maybe it is - it's either scheduled to be between
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150 to 180 days after the OPA is approved. I don't recall
the final number we settled on.
Q Are you aware of any decision that has been made
to condemn At Burlington's interest?
A No decision has been made yet.
Q Are you aware of any recommendation and that you
as a director of economic development department will come
up with with respect to the disposition of Burlington?
A Not at this point in time:
Q Do you believe that it is likely that a
condemnation proceeding will commence?
A Well, I don't know. I hope Ezralow and
Burlington can still work something out. It depends on the
exact scope of development the developer opts to pursue.
Q Do you mean that in general terms in terms of
what they're going to pursue or what t-hey're pursuing with
Burlington?
A . Well. I think they're probably related, you know,
we've been looking at, you know, in effect, three
alternatives. One which has Burlington and Wards staying.
One which has Wards staying. And one that's a complete
redevelopemeat of the center. And they all result in very
different kinds of centers with different revenue
24 generations, so --
25- Q In your gap analysis, is there more of a gap with
358
1 neither of those retailers remaining?
2 A Really, it doesn't change from - well, actually,
3 it does potentially change whether or not Wards is
4 included. Because, you know, Wards encompasses such a
5 large additional land area, yes, there is contemplated
6 there will be a two tearing whether or not the Wards parcel
7 is incorporated.
8 Q So, in other words, if you take out Wards,
9 meaning, condemn it or purchase the land or somehow acquire
10 the land for the redevelopement, that makes a larger gap?
11 A Yes.
12 Q The same is not correct with respect to
13 Burlington, is that correct?
14 A True.
15 Q Okay. At what point will there be a decision
16 made whether Burlington and Wards remain, option one;
17 option two, Wards only remain; or that neither of those two
18 remain?
19 A It depends. You know, part of - again, we're
20 still hopeful that Ezralow will be able to negotiate with
21 the two parties and - so, you know, it could happen any
22 point after - it could happen at any point In time after
23 the OPA is approved up until, you know, some number of, you
24 know, many months later. It doesn't have to be decided-,
25 right away. So it's fairly - the OPA is fairly
359
1 open-ended in that regard.
2 Q What is your current status with your discussions
3 with Wards?
4 A I haven't really had any. We have litigation
5 pending with them. There is a settlement conference, I
6 think, coming up sometime soon, so -
7 Q Wards sued you?
8 A Yes.
9 Q Do you know when that happened?
10 A It was within 30 days of the specific plans being
11 approved, so I think that would be a month ago. I don't
12 know the specific dates:
13 Q Have you had discussions with Ezralow regarding
14 how to handle the Wards situation?
15 A How to handle the Wards situation?
16 Q Yes.
17 A Same thing. We encourage them to be talking to
18 Wards to see if they can't, you know, acquire Wards or if
19 that's what they would like to do. But, no, not
20 specifically.
21 Q Okay. Have you ever spoken to Barbara Zachary?
22 A Yes.
23 Q What have you said to Barbara Zachary?
24 A Well, Barbara Zachary is the appraiser that has
25 been retained, I think, to appraise both some of the Ward
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I -- the interest of the Ward's parcel and the parcel that
2 Ezralow that Burlington has.
3 Let's see. Not too much, you know, my timing —
4 we had, you know, get her under contract. Gus is the main
5 liaison with them.
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Let's see. What else have I talked to Barbara
about specifically? Just need to get the appraisals
completed
There is an issue about access, I think they're
aware in regard to the Burlington property. So I think
she's talked with Mr. Tepper, Mr. Cane about that. I think
there is going to be a hearing on that I think the end of
September.
MR. TEPPER: Well, I think that's -- we don't know
when that hearing is.
THE WITNESS: All right, then. And so nothing very
general with Barbara as far as the project. Mostly need to
get the appraisal done in a timely manner.
BY MR. TUCHMAN:
Q Do you need -- as the director of economic
development department, do you need to have Burlington
appraised?
A Again, as we talked last time around this is a
question you asked before, so, you know, if you have
anything, new I would be happy to answer that.
1 Q As you sit here today, do you have a value of the
2 Burlington leasehold?
3 A No.
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Q Has anybody told you what the value of the
Burlington leasehold is?
A No.
Q Have you discussed with Jim Hughes bonus value?
A With Jim Hughes bonus value?
Q Yes.
A No, not with Jim Hughes.
Q Who have you discussed bonus value with?
A With Murray Cane.
Q Besides Murray Cane anyone else?
A No, not that I can recall _
Q Have you discussions as to who is entitled to the
bonus value of the Burlington lease if there were a
condemnation?
A You know, we discussed generally the idea of
bonus value. Again, I haven't seen the Burlington lease
myself. I haven't even looked at it, so I don't know if
this particular instance who would get bonus value. So,
no, I don't recall any specific discussions as to who might
have the bonus value if there is any.
Q Do you know what bonus value is?
A Generally.
362
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
1 Q Would you please tell me what your understanding
2 is of it.
3 A Well, if, for example,, either a property owner or
4 a lessee, depending on which way it runs, has, for example,
5 a lease that's well below what market rate might be on a
6 leased premise, then sort of it can be described as a bonus
7 value. Meaning, that, you know, they can conceivably, if
8 they're leasing it for a dollar a square foot and in the
9 market it's $4 depending on the length of the term and
10 their ability to sign and sublet, you know, it may create a
11 bonus in the marketplace.
12 Q Are you, as the director of economic development
13 department, aware that Ezralow has contended that in the
14 event there is an eminent domain proceeding that they will
15 try and get the bonus value?
16 A No.
17 Q Have you been asked by Ezralow or anyone, as the
18 director of economic development department for the City of
19 Huntington Beach, to proceed in the direction to condemn
20 the Burlington lease so as to effectuate in elimination of
21 bonus value to Burlington?
22 A No.
23 Q Have you had discussions with anyone from Ezralow
24 relative to who was entitled to bonus value upon
25 condemnation of that lease?
363
1 A Not specifically, no.
2 Q Have you had a conversation generally?
3 A With anyone from Ezralow?
4 Q Yes.
5 A No..
6 Q Have you had a conversation with anyone other
7 than Mr. Cane's firm?
8 A Not that I recall.
9 Q Are you aware, with regard of who was entitled to
10 the bonus value upon that lease, that there is a there
11 bonus value involved?
12 A Not necessary. Well, I haven't assessed it
13 particularly, so, no.
14 Q Has anyone told you what the value of that bonus
15 value is?
16 A No, not that I recall
17 Q With respect to Barbara Zachary, what is her
18 assignments? Do you understand it?
19 A WeB, she's appraising the parcel on which upon
20 which Burlington sits, and then she's also appraising the
21 Ward's parcel.
22 Q When you say "appraise," what do you mean? Do
23 you mean the structure? the land? the bonus value?
24 goodwill?
25 A I couldn't tell you specifically. No, I don't
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think she's doing goodwill, You don't do goodwill until
you know whether or not someone can be relocated or, you
know, the potential claim for goodwill. So I know she's
not doing goodwill. The exact components of her appraisal.
I haven't given her that level of specific direction
whether Gas has or whether Murray Cane has I don't know
offhand.
8 Q Was Barbara Zachary from the Dohn Company they
9 were hired by the redevelopment agency; is that correct?
10 A Yes.
11 Q And then there is this other outfit I think they
12 do F and E, is that Donahue Novak?
13 A Yes.
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Q And they were hired by the redevelopment agency?
A Yes.
Q And in fact they have been hired?
A Yes, I believe so.
Q And their assignment is what?
A To appraise fixtures and equipment associated
with the Wards' parcel and the parcel upon which Burlington
sits.
Q Have you been allowed access to the Wards parcel?
A I don't know offhand.
Q Now, we were talking about the'meetings in
August, are you able to tell me if you had five meetings in
365
August?
A No, not without looking at my calendar.
Q Were there four meetings?
A I don't recall specifically.
Q Did you speak to Mr. Selefski regarding the
Burlington suit in the last month?
A In the last month probably, yes.
Q What did you say to him?
A I don't recall specifically. Mostly, again, we
were just talking about what being deposed was like.
Q What did he say about that?
A Pardon?
Q What did he say about that?
A Oh, I calling to him before he came up, so —
Q Okay. What did Mr. Selefski say?
A You know that he didn't think he was going to be
of mach help, so —
Q Anything else?
A. No.._
Q. Have you talked to him since his deposition?
A Just in passing.
Q What did he say?
A He didn't think he was much help, so —
Q I want you to -- did you discuss Exhibit 7 with
Mr. Selefski since his deposition?
1 A Since his deposition?
2 Q Yes.
3 A No, not that I can recall
4 Q Did you ever ask Mr. Selefski who typed up
5 Exhibit 7?
6 A No, not that I recall. I remember we discussed
7 it in my deposition.
8 Q Yes, we did. Since your last deposition, have
9 you determined who typed up Exhibit 7?
10 A No. Not any more than what I was able to talk
11 about last time.
12 Q Since July 28th, have you determined who authored
13 Exhibit 7?
14 A No, I don't recall.
15 Q I want you to take a look at Exhibit 216 that I'm
16 looking at at page 1. I'm looking at certain numbers
17 here. It says that number three -- it starts off
18 Paragraph 3, do you see that?
19 A What page are you on?
20 Q It's designated page 1, but it's essentially
21 page —
22 A Not the numbered paragraph page 3.
23 Q Yeah.
24 A Okay. Sorry. Third paraf►�pk
25 Q It says, "'ibis Plan is a compilation and
367
1 continuation of the Redevelopment Plans for the constituent
2 Projects and will amend the preexisting Redevelopment Plans
3 as follows:"
4 Then if goes to number three, "Increase the
5 dollar limit on the amount of indebtedness that may be
6 outstanding at any one time."
7 What does that mean?
8 A Well, each redevelopment plan has a cap on the
9 amount of bonded indebtedness that can be incurred and this
10 increase the limits on that in an overall capacity in the
11 merged project area.
12 Q Now, when it was increased was that increased on
13 a per location basis or increased for all five?
14 A Increased for the entire merged project area.
15 Q And do you know what dollar limit is?
16 A Let's see if we go in the plan it will say in
17 here $275 million outstanding at any one point in time.
18 Q Would you please direct me to the page?
19 A Sure. Page 27 — enumerated 27 at the bottom,
20 Paragraph A.,
21 Q How much of that has been used up, if any?
22 A We only have currently outstanding bond
23 indebtedness I want to say of about 20 to $25 million.
24 Q So you have a lot of room then?
25 A Yes.
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t Q Of the other projects, have the other projects
1
2 been redeveloped the other four locations?
2
3 A When you say "the other four locations"?
3
4 Q Yes. What I mean by that is Yorktown, lake,
4
5 Talbert, Beach?
5
6 A The project in this term refers to project areas
6
7 which are relatively large geographic areas and there have
7
8 been — are any of them completely redeveloped, no, have
8
9 there been individual redevelopment projects meaning an
9
10 actual development talting place, yes, but none of them are
10
11 completed redevelopment project areas.
11
12 Q Is the redevelopment that's proposed for the
12
13 Huntington Center for the entire project area?
13
14 A No. The project area is greater than that that
14
15 encompasses the Huntington Center site.
15
16 Q Now, it says, number five, on a selective basis
16
17 extend the time frame. Now, I think you have the right to
17
18 proceed under eminent domain for how many years?
18
19 A Would have renewed that for 12 years from the
19
20 date this amendment was done.
20
21 Q Okay. Was there an environmental impact report
21
22 that was prepared in conjunction with the redevelopment
22
23 plan for the Huntington Beach Redevelopment Project which
23
24 is Exhibit 216?
24
25 A Yes, there was.
25
369
1 Q And do you have a copy of that at city hall?
1
2 A Yes, we do.
2
3 Q And if I just called the city clerk, she could
3
4 give that to us; right?
4
5 A Yes.
5
6 Q Has it been determined whether an environmental
6
7 impact report has to be prepared for the SP 13?
7
8 MR. SHIPOW: Objection. Calls for a legal
8
9 conclusion.
9
10 MR. TEPPER: Object to the specific plan that was
10
11 adopted.
11
12 MR. TUCHMAN: Yes.
12
13 THE WITNESS: Whatever environmental review that was
13
14 done at the time action was taken when the council approved
14
15 the specific plan, I don'trecall specifically how the
15
16 planning staff processed it, so —
16
17 BY MR. TUCHMAN:
17
18 Q So you're saying refer to the document that was
18
19 the approval to determined whether there is an EIR needed
19
20 or not?
20
21 A The staff report would have said or there would
21
22 have been some determination made at that point in time.
22
23 Q Has anybody told you that the environmental
23
24. impact report which was made in conjunction with the
24
25 redevelopment plan for the Huntington Beach Redevelopment
25
370
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
project was sufficient to redevelop the areas under
specific plans?
A Generally, we do — we generally do approve
specific levels of development using the redevelopment EIR
as the environmental clearance for that. You know, each
project is evaluated separately, so I don't know if that's
what the plan is shedding light on I don't recall at this
point
Q Whose job is it at the city or the redevelopment
agency to determine whether a separate EIR other than the
redevelopment EIR must be done for each project located in
a redevelopment area?
A The ultimate decision lies with the planning
staff and ultimately Howard Selefsld the planning director,
but we do have input into that.
Q I want you to take a look at page 5, please, of
Exhibit 216. And it says section Roman numeral number five
"Redevelopment Plan Goals."
Do you see the bullet points?
A Yes.
Q Okay. It says, "Eliminate and prevent the spread
of conditions of blight including" — and there is a number
of items — "underutilized properties and deteriorating
buildings, incompatible and uneconomic land use* deficient
infrastructure and facilities, obsolete structures, and
371
other economic deficiencies in order to create a more
favorable environment for commercial, office, industrial,
residential, and recreational development.
Is there any blight at the Huntington Center?
MR. TEPPER: Objection. That calls for a legal
conclusion. I believe with respect to the adoption of the
merged redevelopment project in 1996 all areas included
within that project are conclusively presumed to be
blighted as of the date and that goes to Health and Safety
Code Section 33500 and 33501.
THE WITNESS: And that would have been my answer.
MR. TEPPER: I'm sorry. That calls for a legal
conclusion.
BY MR. TUCHMAN:
Q Can you tell me what conditions of blight exist
at the Huntington Center?
MR. TEPPER: Objection. Relevance. That's
conclusively presumed.
THE WITNESS: I think you can go back to the report on
the plan as well when this plan amendment merger was done
there were things specifically cited at that point in time,
so --
BY MR. TUCHMAN:
Q Are there underutilized properties and
deteriorating buildings at Huntington Center?
372
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BURLINGTON V. HUNTINGTON
I A Yes, I believe so.
2 Q Okay. What buildings are deteriorated?
3 A Well, I think basically almost the entire center.
4 I couldn't go by each and every one. Mostly the mail is
5 vacant. The Broadway building has been vacant since 1996 I
6 think Partially demolished. There are other buildings
7 that haven't had tenants in them for four or live, six
8 years so. During that time that would be additional
9 deterioration.
l0 Q What written evidence or reports exist to show
I that any part of the Huntington Center is deteriorated?
12 A I just mentioned the report that was prepared
13 when this plan amendment was approved.
14 Q What is that report called?
15 A It's called a plan report; right?
16 MR. TEPPER: Final report.
17 THE WITNESS: Final report to the city council on the
18 proposed redevelopment plan.
19 BY MR. TUCHMAN:
20 Q That's also available at the city clerk's office?
21 A Yes.
22 Q Do you know what the final report to the city
23 council relied upon to determine if there were deteriorated
24 buildings located at the Huntington Center?
25 A I don't recall specifically.
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373
Q Any document or evidence that would support the
redevelopment plan -- the Huntington Beach redevelopement
Plan to show that there was some kind of blight, would be
contained in this final report; correct?
A And all the proceedings before the council and
agency board at the time the plan was adopted. So, yes,
in 1996, as Mr. Tepper indicated, it was irrefutably
entered into the record that blight doesn't exist in the
area.
•• Q Now, are there any incompatible and uneconomic
land uses at the Huntington Center?
MR. SHIPOW: I'm going to object again to this series
of questions. This lawsuit at most these questions have to
do with the lawsuit that is pending between Burlington and
the City of Huntington Beach. I think this is just
plaintiff's way to get discovery in that case.
MR: TEPPER: Thank you.
MR. TUCHMAN: You can answer the question.
MR. TEPPER: No. It's irrelevant. And it's the
subject of a conclusive presumption so please move on.
MR. TUCHMAN: I'm going to get answers to these
questions one way or the other. And I'm entitled to facts
from this witness as the director of economic development
department as to what facts exist. I understand that he's
saying conclusively presumed, but I think he knows of a few
374
I cases out there. And that's not going to fly. I need --
2 MR. TEPPER: Excuse me. There are no cases that will
3 have that fly.
4 MR. TUCHMAN: Okay.
5 MR. TEPPER: In fact, there were two decided in the
6 last two months that would say that wouldn't fly, so --
7 MR. SHIPOW: In addition, you're only entitled to
8 facts that relate to the claims in this case or that lead
9 to the discovery of admissible evidence relating to claims
10 in this case and the determinations in this redevelopment
11 plan have nothing to do with this case as far as I know.
12 MR. TUCHMAN: To respond to your comments, Mr. Shipow,
13 certainly if there is no blight at the property that would
14 happen to be a problem with your client's motivation or if
15 they're trying to manufacture blight that also goes to
16 motivation;
17 MR. TEPPER: With respect to the issue of blight
18 that's determined and there is no way to open that up as a
19 matter of law.
20 MR. SHIPOW: And it's not determined by Ezralow
21 anyway.
22 MR. TEPPER: So you're about four years too late to
23 challenge the issue of blight with respect to any property
24 within that project area
25 MR. TUCHMAN: I understand what you're saying I
375
1 still want answers to these questions.
2 THE WITNESS: Refer you to the plan. The plan report
3 outlines that.
4 BY MR. TUCHMAN:
5 Q Are you aware if Burlington falls under any of
6 these categories?
7 MR. SHIPOW: Same objections.
8 THE WITNESS: I haven't specifically evaluated it.
9 BY MR. TUCHMAN:
10 " Q Are you aware of any writings which indicate that
11 the Burlington store is subject to any type of blight
12 including deteriorating buildings, incompatible and
13 uneconomic land uses, deficient infrastructure and
14 facilities, obsolete structures and other economic
15 deficiencies?
16 THE WITNESS: I just answered the question.
17 MR. TEPPER: Objection, relevance. That's beyond --
18 it's just not relevant. Move on:
19 MR. TUCHMAN: You're instructing him not to answer?
20 MR. TEPPER: Yes.
21 MR. TUCHMAN: All right.
22 BY MR. TUCHMAN:
23. Q Are you aware if Burlington is the maximum use of
24 its structure?
25 A If Burlington is the maximum use of its
376
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structure?
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2
Q Yes.
3
A I would have to say probably not since they
3
4
probably only occupy about one and a half -- about half the
4
5
structure. It's a three-story former JC Penny building
5
6
that's only occupied — I think Burlington only occupies at
6
7
four and a half. So I think it's just a matter of half the
7
8
building being empty. It's probably not the maximum use of
8
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that particular building.
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Q Has the city performed any type of economic
10
11
analysis of the Burlington store to determine if that
11
12
store, that structure, could be better used?
12
13
A That particular structure?
13
14
Q Yes.
14
15
A No, I don't believe so. Not at this point.
15
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Q Are you aware of any deficiencies at the
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17
Burlington store in terms of structure?
17
18
A Physical structure?
18
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Q Yes.
19
20
A Again, we haven't made that assessment.
20
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Q Have you determined what higher and better use
21
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the Burlington store could have?
22
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A The Burlington store?
23
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Q Yes.
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25
A No, we haven't undertaken an analysis of that
25
377
1
level on a store -by -store basis.
1
2
Q Why don't you take a look at page 6 under
2
3
redevelopment actions. At number nine it says, "Preparing
3
4
building sites and constructing necessary off site
4
5
improvements."
5
6
Number 9 is at the bottom of the page. Is that
6
7
to be performed by the city or a developer?
7
8
A This is looking specifically at actions the
8
9
agency can either do or facilitate.
9
10
Q So you have the -- there is the power to do it --
10
11
withdraw.
11
12
Number 7, it says, "Acquiring real property by
12
13
purchase, lease, gift, grant, request, devise, or any other
13
14
lawful means."
14
15
Is Burlington inconsistent with the plan that has
15
16
been submitted?
16
17
MR. TEPPER: Objection. Ambiguous. I don't
17
18
understand that question.
18
19
Do you understand that question?
19
20
THE WITNESS: No.
20
21
BY MR. TUCHMAN:
21
22
Q Is it consistent or inconsistent with the city's
22
23
redevelopment of that area to acquire Burlington?
23
24
A It is consistent?
24
25
Q Yes.
25
378
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
A Well, I can answer the question more generally if
You like because we haven't -- we're not at the point of
looking at Burlington in particular. But in the purpose of
Pursuing redevelopment, sometimes you —just to
illustrate. You can — for example you can acquire
Property in a redevelopment project bees that is needed to
facilitate overall redevelopment without that one
particular use itself being an undesirable or you know
substandard structure or things.
There have been times where if you acquire a
property because it's key to an overall broader goal to
eliminate blight in the overall area, you know, you don't
do Won the basis of each individual parcel having to
demonstrate one or all or more symptoms of blight.
Q Take a look at page 8, please. At the bottom
paragraph it says, "To the extent required by law, the
Agency shall not acquire real report on which an existing
building is to be continued on its present site and in
present form and use without the consent of the owner,
unless."
Do you understand what that means?
A It means we can't acquire an existing building to
have the building remain and just turn it over to a third
party.
Q Okay. Thank you. Take a look at page 9;
374'
please. It says, "The Agency desires participation in
redevelopment activities by as many owners and business
tenants as possible."
Do you see that?
A Yes.
Q What have you done as the director of the
economic development department to ensure that this policy
is carried out, meaning, Burlington is involved?
A Well, that's not what it means. It means that --
well -- one, to answer the question, we went through the
owner participation process and Burlington submitted a
proposal. They were not selected to be the owner
participant developer of the site. Beyond that, there are
things that we suggested to Burlington in the scope of our
settlement meeting that would have resulted in their
reincorporation of the project area.
Q Anything else?
A And of course, encouraging Ezralow to see what
they can work out as the selected owner participant to
develop the site overall.
Q Have you determined whether Burlington is
entitled to reentry preference?
A Well, certainly any business is entitled to
reentry preference. Again, that doesn't necessarily mean
in the mail site. It could be in the project area
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somewhere. So any business is entitled to reentry
preference. So we'll work with them to the extent possible
to have them reenter the project area.
Q Why don't you take a look, please, at page 16.
Look at."Parchase and Development Documents." What
purchase and development documents other than those that
you've testified today is the agency contemplating?
A Well, that would be the owner participation
agreement.
Q Any other documents other than you testified?
A No, not from the agency's perspective.
Q What CC & Rs do you anticipate will be necessary
in this redevelopment plan?
A Well, we always have in this — I'm sorry. You
said redevelopment plan?
Q You were going to execute documents and leases,
you also said there will be some CC & Rs that you will want
to be recorded pertaining to that property and now I'm
asking specifics to what CC & Rs?
A Okay. We just referred to the redevelopment plan
the existing redevelopment plan.
Q Yes, I understand.
A You're talking about in the case of the owner
participation agreement on this site what would be the
CC & Its?
381
Q Correct. I'm actually looking at the next page.
A Right. There is nondiscrimination, maintenance
levels, typical types of covenant and restrictions that we
have in our agreements that, you know, they'll meet the
zoning, that they won't permit any nonconforming rises.
Those types of things.
Q Why don't you take a look, please, at page 20.
At page -- paragraph 5 or number five it says, "Limitations
on Type, Size and Height of Buildings."
It says, "Limits on building intensity, type,
size, and height, shall be established in accordance with
the provisions of the General Plan and the zoning
ordinances, as they now exist or are hereafter amended."
Does the specific plan that's submitted on a
project basis act to amend the general plan with respect to
a specific like this?
At No. Weft; the general plan on this site requires
that a specific plan be prepared so you know that probably
would be a better question for Howard or a planner to .
answer. So is it — I don't know technically if it's an
amendment of the general plan or not. The general plan
requires the specific plan so I don't know if it's
considered an amendment of the general plan or not.
Q As far as you know does the Burlington structure
that exists there today violate the general plan just in
382
1 terms of type, size, and height?
2 A I don't believe that it does. The —you know,
3 the specific plan has a requirement that if there are ever
4 to be any remodeling of the building and again this would
5 be better for Howard to answer that it would have to comply
6 with the specific plan as far as being brought up into
7 conformance with the specific plan requirements I don't
8 think there is anything such as height or massing or
9 anything that's not to the_specific plan or the general
10 plan.
11 Q Okay. Thank you. We're done with that exhibit.
12 By the way, with respect to Exhibit 216, did you assist in
13 its preparation?
14 A I reviewed and approved W I don't recall if I
15 specifically — I guess "assistance," that means
16 preparation. It was drafted by the outside consultant. I
17 did review and approve what was included.
18 Q When the 33433 report is prepared — is Jim Rabe
19 from your offices or is he from Kaiser Marston?
20 A Kaiser Marstom.
21 Q And so Rabe he's not an employees, he's a
22 consultant from KM; is that correct?
23 A . Yes.
24 Q Have you spoken to Mr. Frank Cota in the past
25 month?
383
1
A
Frank Cota?
2
Q
Yes.
3
A
I don't recall who that is
4
Q
Have you spoken with Jayna Morgan in the past
5
month pertaining to Huntington Center?
6
A
No.
7
Q
Have you had any discussions with anyone at the
8
city since
July 28 regarding the June 5th memo dated June 5
9
which
is Exhibit 7?
10
A
No, not that I can recall.
11
Q
Has anyone told you about any petitions that were
12
signed by residents of the City of Huntington Beach?
13
A
Yea:
14
Q
And where did you get that information from?
15
A
From someone at Burlington spoke at a council
16
meeting:
17
Q
And are you aware of how many signatures there
18
are?
19
A
No.
20
Q
Are you aware that there is at least 10,000
21
signatures?
22
A
No.
23
Q
Does that concern you?
24
A
No..-
25
Q
What steps will the city have to take if it wants
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to raise sales taxes to fill the gap?
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A Nothing.
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3
Q That has to be done by?
3
4
A It's based on the amount of sales that occur on
4
5
the site not by an increase in the tax rate.
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6
Q You were talking about at the last deposition you
6
7
mentioned somebody named Paul, but you didn'tremember his
7
8
last name, at a meeting that you had.
8
9
Do you remember Paul's last name?
9
10
A Well, no. Is it in reference to the leasing
10
11
person?
11
12
Q Yes.
12
13
A No, I don't recall Paul's last name.
13
.14
Q You call him the leasing guy?
14
15
A Yeah.
15
16
Q Is it Paul -- Pm sorry.
16
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A He works for Doug Gray?
17
18
Q That's Paul Bernard?
18
19
A I don't recall.
19
20
Q When is the last time you spoke with Paul
20
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Bernard?
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22
A It hasn't been for a considerable period of time.
22
23
Q Who did you get the information on with respect
23
24
to the letters of intent?
24
25
A From — gosh, I can't remember specifically.
25
385
1 Either Doug Gray or maybe Brian Ezralow. It could have I 1
2
also been Jim Rabe. He's been talking with them about
2
3
their leasing efforts.
3
4
Q Has the city or the redevelopment agency been
4
5
provided with any written information relative to
5
6
perspective tenants?
6
7
A No.
7
8
Q Has a determination as of today, September 11,
8
9
2000, been made as to whether Burlington Coat Factory fits
9
10
into the concept of the redevelopment agency for Huntington
10
11
Center?
11
12
A It depends on what concept ultimately is pursued.
12
13
As I said, there will be some form of redevelopment that
13
14
won't be answered until things play out. So it's really —
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I can't — no, I can't actually say I believe a decision
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has been made, so —
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Q. And as we sit here today, has the City of
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Huntington Beach in the redevelopment agency determined
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taking control of the tenant mix?
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A Taking control of the tenant mix?
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Q Yes.
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A That would never be our -- we would never have
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that level of control. We can indicate the type and
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quality of a center that we would like. I'm trying to
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remember — I don't even think the OPA contemplates
25
386
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
specific approvals of tenants. It's more a general
description of the type and quality but I would have to go
back and check.
Q So it's up to Ezralow?
A Pardon me?
Q It's up to Ezralow?
A As far as ultimately which tenants go in place,
you know, we as the city can make the determination as to
what kind of center we want and describe the quality and
characteristic of that center, so —
Q As of right now it's up to Ezralow as to who the
tenants will be at that shopping center; is that correct?
MR. SHIPOW: Objection. Asked and answered.
MR. TUCHMAN: I'm not sure it was answered.
MR. SHIPOW: I'm sure it was.
MR. TEPPER: You can answer it.
THE WITNESS: Can 1 answer it again? Okay. Let's see
the —
MR. TEPPER: Try and keep it within one sentence.
THE WITNESS: Yeah, I'm going to.
MR. TUCHMAN: I don't mind one sentence.
THE WITNESS: It isn't the agency's discretion
ultimately to decide what kind of shopping center we want
developed there. And, you know, well address that through
the owner participation agreement. We have to ultimately
387
decide which new tenants come into the center. I'd have to
go back and double check the language but usually we try
and define that more by a general descriptor of quality and
characteristics of a center as opposed to specific levels
of tenants you know rely on the developers for the
determination that those tenants fit in the center.
BY MR. TUCHMAN:
Q As of today, September 11, 2000, it's up to
Ezralow not the city or the redevelopment agency to say who
the tenants are at the shopping center?
A I don't know if that's a question of as of today
as much as, you know, I think it's sort of a tiered
process. First defining the kind of center we want, and
then once we do that, then I think it is in their
discretion, generally, as to what tenants go into it.
Again, I would have to go back and check the
language that we're patting in the owner participation
agreement, but I don't recall as having specific approvals
as to leases but I'll have to double check.
Q Is there anything in the OPA or any other written
documents between the City and Ezralow which precludes the
existence of Burlington at the shopping center?
A Which precludes the existence of Burlington? No.
Q Which precludes?
A No.
388
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)AVID C. BIGGS, VOL.3; 09.11.00v
BURLINGTON V. HUNTINGTON
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Q "No"?
A No:
Q Okay. Now, you've had some financial reports
prepared relative to the OPA and the redevelopment of
Huntington Center?
A The economic analysis that we've used to
establish the gapping things?
Q Yes.
A Yes.
Q Has that been completed?
A No, that will be — in effect, that ends up being
what is included in the 33433 report and the summary and
the reuse appraisal.
Q In addition to the financial report which
analyzes the gap, are there other financial reports you're
waiting for?
A And the financial reports, no. Pretty much that
will include the entire — 33433, you sort of find those
are interwoven in the 33433 report, the summary, the reuse
appraisal, the finances and the economics of the project
are evaluated in that.
Q Is there a — is this KM, Kaiser Marston,
responsibility and Jim Rabe to do the financial analysis?
A Yes.
Q Is there someone else at his office that is doing
389
it?
A You know, I don't know offhand if Jim is doing it
himself. He's got a couple of associates, but I haven't
spoke with anyone but Jim on it."
Q Is there an extraordinary cost report or
extraordinary cost exception report?
A A what?
Q An extraordinary cost exception report?
A What is that?
Q Basically is there some type of list or report
relative to extraordinary costs that come up that are,
unforeseen that the city will kick in more money for?
A No.
Q Has Ezralow asked for such a reserve?
A No:,
Q As of today, has any money -been deposited by
Ezralow?`
A We have — no, actually, no..
Q You were about so say something?
A I was getting confused with another developer who
put up a good faith deposit but that is at the time the
owner participation agreement is entered into.
Q That's on property unrelated to Huntington Center?
A Unrelated.
Q When do you anticipate money will be deposited?
390
1 A Let's see. Well, the owner participation
2 agreement to the extent that they're — I'll have to double
3 check. There might be a good faith deposit contemplated
4 usually that's deposited within so many days after approval
5 the owner participation agreement, you know, if there is
6 any acquisition on the site there Is a provision that, you
7 know, they deposit money so many days after we give them
8 notices as to how mach mosey we need. .
9 For example, we're asking them to start to pick
10 up our legal costs in litigation that will occur after the
11 owner participation agreement Is approved if they agree to
12 that, so, then we would start to ask for money for that.
13 So the time from contemplated sometime after we would ask
14 them after the owner participation agreement is approved.
15 Q Do you have a figure as to what the good faith
16 deposit amount will be?
17 A I don't recall, no:
18 Q There is an amount that's been contemplated?
19 A No. I'd have to doable check I don't recall
20 that particularly. We don't always require good faith
21 deposits it depends on the scope and nature of the center.
22 I would just have to go back and check the draft to see it
23 it's In there or not:
24 Q Are you aware if there is one or isn't one?
25 A I don't recall specifically:
391
1 Q Okay. Now, you mentioned that you met with
2 Principal Group?
3 A The Principal Group — I think back when they
4 were first baying the mall, the Principal Group was one of
5 their financial copartners. Though I don't think that's
6 the case anymore.
7 Q Why did you meet with someone from Principal
8 Group?-
9 A Because at the time that Ezralow was looking at
10 acquiring Huntington Center — and this predates their
11 acquisition — I think they brought in both San America,
12 who remains one of their financial partners, and the
13 Principal Groups I think both were doing their due
14- diligence on what prior due acquisition of the center.
15 Q How many times have you met with Sun America?
16 A Best of my recollection, just the one time.
17 Q And that was prior to the close of escrow?
18 A Yes, I believe so.
19 Q Who from Sun America did you meet with?
20 A I don't recall offhand.
21 Q Now, you described them as two primarily lenders
22 before Principal Group and Sun America, did someone replace
23 the Principal Group?
24 A There is a second group which is — I'm not going
25 to remember their full name — Albert Ludler Group or
392
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I something like that. I don't recall. I have it in my
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2 ofllce. I don't recall the name in particular.
'-
3 Q Did you ever meet with anyone from Albert Ludler
3
4 Group?
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5 A No.
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6 Q Did you have a specific person you spoke with
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8 A I've not spoken with anyone from Albert Ludler
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9 from the best of my recollection.
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10 Q I may have asked you this, do you know the name
10
11 of the person you met with from Sun America?
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12 A I don't recall. I probably have his card.
12
13 Q Was it one person or two persons?
13
14 A You know, I don't recall that far back. There
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15 may have been more than one, but that might have been the
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16 person with Principal Group. I don't recall if I dealt
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18 Q The OPA has to be approved by the city council?
18
19 A And the redevelopment agency board.
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20 Q Does it go to the planning commission first?
20
21 A No.
21
22 Q Now, when the city council meets they will also
22
23 sit as the redevelopment agency board; is that correct?
23
24 A Yes.
24
25 Q And when that action is submitted it will be an
25
393
1
RCA or RAA?
1
2
A
It will be a joint RCA and RAA.
2
3
Q
Has that been drafted at all?
3
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A
Not that I've seen yet.
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5
Q
Who is responsible for drafting the joint RCA and
5
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RAA?
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7
A
Guster a.m. will be the one who will draft that.
7
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Q
And you will review it and approve it?
8
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Yes.
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Q
Who is your contact person at Greenberg, Farrow?
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A
I don't have a particular contact person. I
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couldn't - sometimes they've been in project meetings with
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Jane James,
but I don't recall particularly any of the
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principals' names.
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That's something that planning -deals with more
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meaning the architect?
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A
Yes..
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Q
Have you spoken -to Jane James regarding
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Burlington in the past month?
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In the past month, no, not that I recall.
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Q
Did you discuss with her the lawsuit?
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A
The lawsuit? Which lawsuit?
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Any of the lawsuits?
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Yes, in general, the lawsuits.
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Q
What was discussed?
25
394
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
A I don't recall particularly. Just in passing
though we've been sued again kind of thing.
Q That's with respect to Wards?
A Yeah, probably the Wards is the most recent
litigation, so -
Q Now, did you talk to Jane James about her
subpoena?
A Pardon? No. I know she's been subpoenaed, but I
know that through Howard Selefski. He told me you were
going to subpoena Jane.
Q Yes. Okay. Have you prepared any memo or
written any reports pertaining to Burlington in the past
month?
A Any memos or any reports pertaining to Burlington
in the last month? Not that I can recall.
Q Have you written or prepared any reports or
caused any reports to be written pertaining to Burlington?
A There are things being prepared for the joint
public hearing that I mentioned Gus will be drafting a
staff report for that. Let's see, Jim Rabe is preparing a
33433 report, but none of that is available at this point
in time. It will be available the date that the public
hearing notice appears in the paper which will be - well,
to the extent we use a local paper, so it's the Thursday =.
about two and a half weeks - about two and a half weeks
395
prior to when the public hearing will occur.
Q But you don't know the date when it will be
published?
A No.
Q Are there any other reports or memos which you're
causing to be prepared which may pertain to Burlington?
A Not that I can recall. I don't believe so.
Q What is the next contemplated activity besides
entering into the OPA and preparing these documents
pertaining to the Huntington center?
A That's really it. The specific plan has been
approved by the council, so it's approved barring the
litigation challenge,
From the development perspective, the developer
will ultimately have to submit further site plan review at
some point in time. I don't know when they're
contemplating doing that probably not until after the owner
participation agreement is approved.
Really, from our perspective, everything will
fail out after when and if the owner participation
agreement is approved But, you know - so I can't think
of any particular separate steps that would be taken or are
being taken.
Q Are there any study sessions, review sessions, or
any other type of meetings besides your Thursday meetings
396 -1
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JAVID C. BIGGS, VOL.3r 09.11.00'
BURLINGTON V. HUNTINGTON
1 with Ezralow that will be or are contemplated to take place
2 prior to the meeting in attempt to improve the OPA?
3 A Not that I anticipate.
4 Q I'm going to go off the record for just a
5 minute. I have the wrong memo and then well get you out
6 of here.
7 A I have 11 cities waiting for me to host them back
8 in Huntington Beach, so —
9 Q We're just about done. Well get you out of here
10 off the record.
11 (Recess taken.)
12 MR. TUCHMAN: I do not have any additional questions
13 at this time Mr. Shipow?
14 MR. SHIPOW: I don't have any questions.
15 MR. TUCHMAN: Mr. Tepper?
16 MR. TEPPER: No.
17 THE WITNESS: Then you guys can do the stipulation
18 without me.
19 (Mr. Biggs exits the room.)
20 MR. TUCHMAN: Propose that the reporter be relieved of
21 her duties under the Code with respect to maintaining the
22 original, obtaining signature; that the transcript be sent
23 to Mr. Tepper's office at Xane, Ballmer & Berkman; that a
24 cover letter accompany its transmission CC'd to myself and
25 Mr. Shipow; that Mr. Biggs will have 30 days after the
397
1 receipt of the transcript by Mr. Tepper to review it, sign
2 it under penalty of perjury within 30 days; mr. Tepper's
3 responsibility will be to forward to all counsel
4 corrections of the transcript and advise that it has been
5 signed; in addition, he will provide the original to our
6 offices and we will make it available for any proceeding in
7 this matter; that in the event that the original is not
8 signed and corrected, an unsigned uncorrected certified
9 copy can be used for all appropriate purposes in lieu of
10 the original:
11 Is that okay?
12 MR. SHIPOW: So stipulated.
13 MR. TUCHMAN: Is that okay, Mr. Tepper?
14 MR. TEPPER: So stipulated.
15 MR. TEPPER: And don't forgot this is volume 3, so
16 pick up the correct pages.
17
18 (Deposition concluded at 10.50 a.m.)
19
20 (Declaration under penalty of perjury on the
21 following page hereto.).
22
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
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,)AVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON'
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bonus 362:7,8,11,16
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bottom 368:19 378:6
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Brian 352:19 386:1
brief 337:12
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Broadway 373:5
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building 340:8 373:5
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campus 347:25
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Cane 352:24 356:6
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
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encouraging 380:18
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
-)AVID C.. BIGGS, VOL.3, 09.11.00.,
BURLINGTON V. HUNTINGTON-
ensure 380:7-
enter 331:18-
entered 344.23 374:8-
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kind 345:2,4 346:21
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
388:13 395:2
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
A Veritext Company- 800.649.8787
AVID C. BIGGS, VOL.3, 09.11.0%
BURLINGTON V. HUNTINGTON>
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Page 404
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DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
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JILIO & ASSOCIATES CERTIFIED COURT REPORTERS
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'AVID C. BIGGS, VOL.3; 094i1.0d= ...:
BURLINGTON V. HUNTINGTON
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Steakhouse 346:8
steps 384:25 396:22
still 332:7,12,13,22
DAVID C. BIGGS, VOL.3, 09.11.00
BURLINGTON V. HUNTINGTON
335:9 341:2
353:11 354:13
358:13 359:20
376:1
stipulated 398:12,14
stipulation 397:17
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381:10
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Thank 374:17
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using 339:3 351:9,12
371:4
DAVID C. BIGGS, VOL.3, 09.11.0W,
BURLINGTON V. HUNTINGTON-
usually 341:10 356:9
357:17 388:2
391:4
utilized 340:25,
vacant 373:5,5
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WAREHOUSE
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Page 408
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DAVID C. BIGGS, VOL-3, 09.11.00
BURLINGTON V. HUNTINGTON
Page 409
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