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HomeMy WebLinkAboutTALBERT AND BEACH, INC - 1999-06-21 i • • LAO L 0. IJ� CITY OF HUNTINGTON' BEACH Inter-Department Communication TO: CONNIE BROCKWAY, City Clerk FROM: GAIL HUTTON, City Attorney DATE: June 29, 1999 SUBJECT: Settlement Agreement Talbert & Beach v. City of Huntington Beach The attached Settlement Agreement is forwarded for execution by the City Clerk. This agreement was approved in closed session on June 21, 1999 and reported out in open session on June 28, 1999. h'GAIL HUTTON, City Attorney Ik Attachment: Settlement Agreement r (0 i"rl-T'JJ r7 jmp!l corres!8 SETTLEMENT OF ACTION AND RELEASE WHEREAS, Talbert and Beach, Inc. ("Talbert & Beach") is owner of three parcels of real property, located in the City of Huntington Beach ("City")known as 18121 Beach Boulevard (the "Property"); and Talbert & Beach filed an action in Federal Court against the City, regarding the City's regulation of sex oriented business. This action is entitled: Talbert and Beach, Inc. v. City of Huntington Beach, Federal District Court, Central District of California, Case No. SACV 96- 969AHS (the "Action"); and Talbert & Beach applied for a preliminary injunction based on the first four causes of action in the Action, which was denied. Talbert & Beach appealed the denial of the preliminary injunction to the Ninth Circuit Court of Appeals, Case No. 97-55619 (the "Appeal"); and Without either party admitting the truth or veracity of any allegations in the Complaint and the First Amended Complaint(hereinafter collectively the "Complaint"), the allegations of the Complaint in the Action are acknowledged by Talbert& Beach and City and incorporated by reference in this Agreement; and The Property is not presently zoned for a sex oriented business, but was previously zoned for a sex oriented business. Pursuant to Section 236.08 of the Huntington Beach Zoning and Subdivision Code, on May 28, 1999, Talbert & Beach was issued a building permit (Building Permit Application No. B054537) to operate a sex oriented business on the Property as a nonconforming use; and Talbert&Beach and City are desirous of ending the Action; NOW, THEREFORE, it is agreed as follows: 1 Plead:tal bert`releasc 106/15199 T Agreement 1. Talbert & Beach acknowledges that pursuant to City of Huntington Beach Ordinance No. 3378, the Property has been rezoned to prohibit using it for a sex oriented business. 2. Except as otherwise noted herein, Talbert& Beach hereby agrees to comply with all the terms and conditions of DR No. 97-29 and waives any and all right to challenge DR No. 97-29, except to the extent it may be construed as requiring compliance with municipal code provisions or requirements not specifically articulated therein and except with respect to paragraph 1-f on page 2 (regarding floor plans) of the City's Notice of Action on said design review application. Should any legal action be brought challenging the approval of DR No. 97- 29, Talbert & Beach will defend said action on behalf of itself and the City. 3. Except as otherwise stated herein, Talbert & Beach and its owners, stockholders, partners, officers, agents, employees, assigns and successors-in-interest do hereby release and discharge City and its officers, agents, employees and successors-in-interest, from any and all rights, claims, demand, and damages of any kind, known or unknown, asserted or unasserted, existing or arising on or before the date of execution of this Agreement and resulting from or related to the allegations of the Complaint in the Action, and the terms and conditions of DR No. 97-29 (except for those portions otherwise expressly noted in paragraph 2 supra). 4. City shall designate the Property as a lawful non-conforming use subject to the three year amortization period commencing upon issuance of the-certificate of occupancy pursuant to Section 236.08 of the City Municipal Code. 5. City shall waive enforcement of Section 5.70.1 00(a)(3) of the Huntington Beach Municipal Code regarding on-site signage restriction related solely to the prohibition of signs 2 Plead%talberVrelease l i06!15!99 being visible to motorists on Beach Boulevard that advertise sex oriented businesses to the extent that Talbert &Beach shall be permitted one wall sign visible from Beach Boulevard. The City authorizes the following text on the sign on the Property: "Flamingo Adult Theater." However, should the name of the business hereafter change, the City prospectively authorizes a sign that says the name of the new entity or d/b/a followed by the words "Adult Theater." The name so supplied (including the words "Adult Theater") shall not exceed five words in total. Notwithstanding the above, there is no waiver of generally applicable zoning regulations of signs, including that they obtain Design Review Board approval, and there is no waiver of the restrictions set forth in Huntington Beach Municipal Code Section 5.70.100(a)(3)(iii). The Design Review Board conditions of approval related to signage are deemed modified as provided herein. 6. Notwithstanding anything in this Agreement to the contrary, the City reserves its right to enact generally applicable police power regulations that would apply to the Property, including regulations affecting sex oriented businesses and the Plaintiffs reserve their right to challenge the constitutionality or otherwise challenge the validity of any such future ordinances. 7. Notwithstanding anything in this Agreement to the contrary, Talbert & Beach neither acknowledges the constitutionality of the zoning change which rendered its property a nonconforming use, nor does it prospectively waive any of its rights to bring challenge to such ordinance. 8. Each party hereto agrees to waive any claim it has against the other for costs or attorney fees incurred in the Action, including but not limited to any claim Talbert &Beach may have in connection with the City rescinding its conditional use permit requirements for sex oriented businesses pursuant to City Ordinance No. 3341. 3 Plead.;talberL'releasc l i06/l 5!99 9. Pursuant to F.R.C.P. Rule 41(a)(1), the parties and their counsel shall promptly sign, and counsel for Talbert & Beach shall file, a stipulation of dismissal without prejudice to the Complaint in the Action. Such filing shall occur within seven (7) days after: (1) execution of this Agreement by all of the parties; and (2) signing of said stipulation by counsel for City and delivery to counsel for Talbert & Beach. Counsel for Talbert & Beach shall provide counsel for City with a conformed copy of the stipulation of dismissal within seven (7) days of having filed the dismissal stipulation. 10. Counsel for Talbert & Beach shall file a stipulated dismissal without prejudice to the Appeal of the Action (giving mootness as a reason) within seven (7) days of: (1) the execution of this Agreement by all of the parties; and (2) the signing of such stipulation by counsel for City and its delivery to counsel for plaintiff. Counsel for Talbert & Beach shall provide counsel for City with a conformed copy of the dismissal within seven (7) days of having filed the dismissal stipulation. 11. It is understood and agreed that this Agreement represents settlement of disputed claims and is not to be construed as representing an admission of liability on behalf of any party to this Agreement. 12. Talbert & Beach and City expressly warrant, represent, and agree that in executing this Agreement, they do so with full knowledge of any rights which they have or may have with respect to the other, and that they have received independent legal advice from their respective attorneys with respect to this Agreement, and with respect to the hereinabove referenced lawsuit. 13. Talbert &Beach and City acknowledge that after entering into this Agreement, they may discover different or additional facts concerning the subject matter of this Agreement 4 Plead.tal bertlrelease 1 i46115i99 or their understanding of those facts. Talbert & Beach and City, therefore, expressly assume the risk of such facts being so different and agree that this Agreement, shall in all respects, be effective and not subject to rescission, cancellation or termination by reason of any such additional or different facts. 14. Should either party bring an action against the other for the purpose of enforcing the terms of this Agreement, or for damages arising from its breach, then in such event, the prevailing party shall be entitled to its reasonable attorney fees and costs in addition to any other award entered by the Court. 15. This Agreement shall inure to the benefit of the parties and to their respective successors, representative and assigns, and shall be binding upon each of the foregoing. 16. This Agreement shall be binding as to Talbert &Beach and its owners, shareholders,partners, officers, employees, assigns and successors-in-interest. 17. This Agreement shall, in all respects,be interpreted, enforced and governed by and under the laws of the State of California. This Agreement contains the entire agreement and understanding between Talbert & Beach and City concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements or agreements, whether written or oral. 18. This Agreement may be executed in one or more counterparts. A copy of this Agreement shall be as binding as the original. 5 Pleadtalberu release L`06/15 99 IN WITNESS WHEREOF, each of the undersigned have executed this Agreement on the date and year indicated below. Each of the below named persons warrant that they are duly authorized to sign this Agreement on behalf of their principal and are authorized to bind their principal to this Agreement. Dated: \1(vE. , 1999 TALBERT AND BEACH, INC. By: Harout Tata ian print name ITS: (circle one)Chairman!President/Vice President AND By: Ma Lid Ahmadi print name ITS: (circle one)SecretaryiChief Financial officer/Asst. Secretary-Treasurer Dated: h 2 17, 1999 CITY OF _ IN GTO . BEACH By: Mayor ATTEST: City Jerk Approved as to form and content: WESTON, GARROU & DEWITT Dated: Z7 , 1999 By: _ C'Vz�� G. Ran all 'arrou, Attorney for Plaintiff, Talbert & Beach, Inc. Approved as to form and content: GAIL HUTTON, City Attorney Dated: ' 1999 By: `'� Attorneys for City of Huntington Beachi ��jy3fy� 6 Plead/talhert-'release1'06.'15 99