HomeMy WebLinkAboutTIERRASANTA - 2002-10-21 RECEIVED FROM
AND MADE A PART OF TH5 RLGw+',=; H
COUNCIL MEETING OF
OFFICE OF THE CITY CLER .
b/ CONNIE BROCKWAY,CITYC9 If
CLEi;1C
CITY OF HUNTINGTON BEACH
Inter-Department Communication
TO: Connie Brockway, City Clerk
FROM: Gail Hutton, City Attorney
DATE: October 21, 2002
SUBJECT: Report of Closed Session Action By City Council Regarding
Tierrasanta v. City, et al., OCSC # 775993
Ofi October 7, 2002, the City Council met in closed session regarding litigation that has
been formally initiated to which the City is a party. The title of the litigation is Tierrasanta
v. City of Huntington Beach, et al., OCSC#775993. The City Council approved the
following action:
Motion to:
1. Approve and adopt the proposed settlement agreement attache h o
as Attachment No. 1; and
2. Authorize the"Mayor and City Clerk to execute the Settlement Agreement
on behalf of the City; and
3. Authorize the City Attorney to take all necessary actions to implement
the Settlement Agreement.
Vote: Yes () No U Abstain Absent k4--r,�
Pursuant to Government Code Section 54957.1(a)(3)(A), the substance of the
agreement is as follows: 1)the parties will stipulate to a proposed judgment regarding
the zoning of the property in question; 2) the cause of action regarding inverse
condemnation will be dismissed; 3) the language regarding the easement on the
property has been clarified; and 4) each party will bear its own costs and attorney's
fees. A copy of the agreement is attached hereto.
AIL HUTTON
City Attorney
Attachment: Settlement Agreement
PDA:2002Memos:City Clerk-Tierrasanta Closed Session Report 10-21
10/18/2002 11:59 3102156581 OVERLAND BORENSTEIN PAGE 02/14
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Agreement")is made and
entered into effective as of October 1-i-2002,by and between:Tierrasanta,Inc. Cz'Tierrasanta")
and the City of Huntington Beach ("City") and the Huntington Beach City Council ("Council")
(Ticrrasanta, City and City Council Lire hereinafter collectively referred to as the "Parties").
Recitals
This Agreement is made with reference to the following Recitals:
1. TiczTasanta and its predecessor,Huntington Harbour Corporation ("HHC") have
been the owners of the real property,Assessor's Parcel No.178-301-01, located in Huntington
Beach, California in Orange County, California (the "Property"). since the land was created as part
of the original Huntington Harbour development. The Property is located in and adjacent to the
Huntington Harbour channel"argil vid includes both submerged and unsubmerged land.
2. The Property was initially zoned"R-1," or single family residential,which
Permitted development of single-family homes.
3. In July 1984, the City adopted an ordinance (No. 2706) ("Ordinance 2706") that
adjusted the zoning for a number of areas within the City. Ordinance 2706 stated that "All
waterways in Huntington Harbour shall be changed from CF-R, 'Community Facilities District,'
combined with recreation, to WR, "Waterways Recreation District,' as shown on District Maps . . .
4. The unsubmerged portion of the Property is not a "waterway." As a result,
Ordinance 2706 changed the zoning on the submerged portion of the Property, but not the zoning
on the unsubmerged portion of the Property.
5. In 1984,HHC granted the City a revocable easement to use the Property as a
parking lot and small boat launching facility ("Easement").
6. Subsequently, zoning suffixes to reflect the Coastal Zone ("CZ") and the Flood Plan
("FP")were added.
OCT-18-2002 12:12 3102156581 9?% P Rl;)
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7. The zoning changes implemented by Ordinance 2706 and by zoning ordinances
since did not change the RI-CZ-FP zoning of the unsubmerged portion of the-Property.
8. Following the City's December 1996 notice of the zoning change to the Property, in
:February 1997,Tierrasanta filed a--petition for writ of mandate and complaint against the City and
Council in the Orange County Superior Court, entitled Tierrasanta. Inc. i,#. City of Huntington
Beach, et. al., Case No. 775993, for declaratory relief, inverse condemnation, mandate, and
injunctive relief ("Action"). Defendants demurred to the Petition and Complaint, which was
sustained in its entirety by the trill court. Following Tierrasanta's appeal of the.tuial court's ruling,
Tien•asanta's causes of action for mandate and injunctive relief were dismissed, but Tierrasanta
was permitted to proceed with its causes of action for Declaratory Relief and Inverse
Condemnation. The Action is currently pending.
9. On or around January 25, 2002, Tierrasanta recorded notice of termination of the
Easement on the Property.
10. It is nowt.he desire of the Parties to fully and finally settle and resolve, for valuable
consideration, the Action without resort to further litigation, and without admitting any liability.
Aireement and Mutual Release
NOW,THEREFORE,in consideration of the covenants and conditions contained herein, and
for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
11. Reinstatement oFR-1-CZ-FP 7onino. The Parties will submit the first cause of
action against the City to Judge Jameson for his decision, on facts stipulated to by the Parties, that
the Superior Court enter a declaratory judgment reinstating the R-1-CZ-FP (or equivalent) zoning
on the unsubmerged portion of the Property. The Stipulated Facts and proposed Judgment are
attached hereto as Exhibit"A" and "B,"respectively.
12, Dismissal of Action. Within 5 days after entry of a Declaratory Judgment by the
Superior Court as described in paragraph 13,Tierrasanta shall dismiss all causes of action against
i
1
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.. •10/18/2002 11:59 31021565 1 OVERLAND BORENSTEIN PAGE 04/14
the City Council of the City, and the remainder of the Action, including the cause of action for
inverse condemnation, against the City, in the form attached hereto as Exhibit C.
13. Submission of General Plan Amendment. Upon submittal of an application by
Tierrasanta for a General Plan-amendment, the City-staff will expeditiously.process in amendment
to the City's Gcneral Plan to re-instate the R-1-CZ-FP (or equivalent) General Plan designation for
the unsubmerged portion of the Property,in accordance with the Court's judgment. In any
proceedings before the Coastal Commission, concerning the unsubrnergcd portion of the Property,
the City will acknowledge the R-1-CZ-FP (or equivalent) zoning on the Property.
14. Easement.
(a) Tierrasanta shall record within 5 days after entry of a Declaratory Judgment
by the Superior Court as described in paragraph 13, a notice of rescission of the notice of
termination of the Easement on the Property, recorded on January 25, 2002, and shall not initiate
proceedings to evict the City from the Property.
(b) The City and Tierrasanta agree that the Easement may be terminated on 180
days' written notice by Tierrasanta,for any reason, on or after the earlier of(i) July 22, 2005, or (i i)
if the term of the Construction and Operation Contract between the City of. Huntington Beach and
the California Department of Boating and Waterways, dated July 22, 19S5 (the"Contract") is
amended to a shorter term or will end earlier than July 22, 2005, at any time after the expiration of
the shorter term. Tierrasanta will cooperate with the City to prevent breach by the City of Articles
V-A and V-13 of the Contract.
(c) Within 30 days. following the effective date of the termination of the
Easement by Tierrasanta in accordance with paragraph 16(b) of this Agreement, the City will
return the Property to Tierrasanta in the condition it existed on the date reflected in the first
paragraph of this Agreement, with the exception that the City shall remove the parking meters, boat
dock and associated lights from the Property prior to its return.
15. Release. With the exception of the Parties' rights, obligations,representations or
warranties expressly set forth in this Agreement,Tierrasanta, on the one hand, and Defendants, on
the other hand, mutually release and discharge each other and their respective predecessors,
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10/18/2002 11:59 3102156 OVERLAND BORENSTEIN PAGE 05/14
successors and assigns, employees, agents, attorneys and administrators, if any, from any and all
claims, demands, debts, losses, obligations, liabilities, costs, expenses, rights of action and causes
of action, in law or in equity, whether known or unknown, suspected or unsuspected. arising prior
to the execution of this Agreement,including,without limitation,those inriny way connected
directly or indirectly to any facts, claims,causes of action or defenses asserted in or relating to the
Action. The Parties further represent and warrant that they will not commence or maintain any
claim, demand, right of action or cause of action, against the Parties hereto or anyone else, related
to or arising out of the Action or the facts that give rise to the Action, except for any breach of this
Agreement.
16. Waiver of Unknown Facts and Circumstances. The Parties understand and agree
that the claims released by this Agreement include all claims of every nature and kind whatsoever
within the scope of the mutual release in paragraph 17, above, including both those they know
about and those they may not know about, and both those they suspect and those they may not
suspect. The,Parties expressly waive all rights afforded by Section 1542 0l the Califomia Civil
Code and any other statute that limits the effect of a release with respect to unknown claims. The
Parties have been fully advised by their counsel and understand the contents and consequences of
Section 1542, which provides;
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must h<ve materially affected his
settlement with the debtor."
The Parties acknowledge that.after entering into this Agreement, they may discover facts
different from, or in addition to,those which they now know or believe to be true with respect to
the claims released by this Agreement, and agree that this Agreement and the releases it contains
shall remain effective in all respects despite the discovery of such different or additional facts.
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OCT-le-2002 12:13 31021565el 9?% p_G1c;
.10/18/2002 11:59 310215.6581 OVERLAND BORENSTEIN PAGE 06/14
17. Each Party to Bear Own Costs and Fees. Each of the Parties shall bear its own fees
and costs arising out of or relating to the Action and the preparation of this Agreement.
18. Assignment of Claims. The Parties represent and warrant that there has been no
assignment or other transfec.of`any interest in any of the claims released by this Agreement. The
Parties agree to indemnify and hold each other harmless from any liability, claims, demands,
damages, costs, expenses and attorneys' fees incurred by the other as a result of any person
asserting any such assignment or transfer.
19. No Third-Party Beneficiaries. There are no third-party beneficiaries, whether
intended,expressed or implied, of this Agreement.
20. Governing Law, This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
21, Entire Amement, This Agreement contains the entire arrcement of the Parties and
may be modified only by a written instrument executed by each party hereto.
22- Construction. No provision of this Agreement shall be construed against any party
or its counsel merely because that party or its counsel drafted the provision in question. For
purposes of California Civil Code Section 1654, and all other similar purposes, this Agreement
shall be deemed to be drafted by each party to the Agreement.
23. Authority to Sian, The signatories for the Parties warrant and represent that they
have full authority to execute this Agreement on behalf of each respective party.
24. Execution in Countemarts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original,but all of which together shall constitute
one and the same instrument.
25. Enforccmcnt of Agreement. The Parties agree that the Court shall retain
jurisdiction to enforce the terms of this Agreement, pursuant to section 664.6 of the Califomia
Code of Civil Procedure.
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OCT-19-2002 12:13 3102156591 Sri P.06
10/18/2002 11:59 3102156581 OVERLAND BORENSTEIN PAGE 07/14
IN WITNESS WHEREOF, the undersigned have exccuted this Agreement as of the datc set
forth above.
Dated: 0 2002. TIERRASANTA, INC.
Name: RayAond F. Logan, PreQftent
/@2�5
Dated: f O ,2002 CITY OF HUNTINGTON BEACH
By:
Name:
APPROVED AS TO FORM AND CONTENT
Dated: , 2002 O VE LAND B ORENS
C__i
Y.
Mark Borenstein, Attorneys for
Tierrlsanta. Inc.
GAIL HUTTON, CITY ATTORNEY
By:
Paul D'Alessandro, Assistant City Attorney,
Attorneys for City of Huntington Beach and
Huntington Beach City Council
+I
I
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r,.-T .- �nn- ^,• � -- -- '�1 G171 SF,SFa 1 QG i o nn
10/18/2002 11:59 3102156�@1 OVERLAND BORENSTEIN PACE 08/14
1 OVERLAND & BORENSTE-IN LLP
MARK A. BORENSTEIN, Bar No. 84987
2 KELLEY B.POLEYNARD, Bar No. 196187
6060 Center Drivc, 7th Floor
3 Los Angeles, CA 90045
Telephone: (310) 215-6580
4 Facsimile: (310) 215-6581-
5 Attorneys for Plaintiff
TIERRANSANTA, INC.
6
7 GAIL HUTTON, City Attorney
PAUL D'ALESSANDRO, Assistant City Attorney, Bar No. 134111
8 2000 Main Street,P.O. Box 190
Huntington Beach, CA 92648
9 Telephone: (714) 536-5555
Facsimile: (714) 374-1590
10
Attorneys for Defendants
1 I CITY OF HUNTINGTON BEACH AND
IT UNTINGTON BEACH CITY COUNCIL
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF.ORANGE .
15
16 TIERRASANTA, INC., a Delaware corporation, ) Case No. 77 59 93
17 Plaintiff, ) STIPULATED FACTS
18 vs. )
19 CITY OF HUNTINGTON BEACH, ) Trial Date: November 4, 2002
HUNTINGTON BEACH CITY COUNCIL, and )
20 DOES 1-50, inclusive, }
21 Defendants. )
22
23 The parties stipulate to the following facts:
24 h Plaintiff Tierrasanta, Inc. ("Tierrasanta" or"Plaintiff') is a corporation organized
25 pursuant to the laws of Delaware and has,since its formation in 1977, been registered to do
26 business in California. Tierrasanta,Inc. is the successor-in-interest to Huntington Barbour
27 Corporation (".HHC"). 11HC and Tierrasanta, in 1989, were both a wholly-owned subsidiary of
28 The Christiana Companies.
PARTIES'STI-PULATED�{-ACTS
EXkeff-_A-PAGE' 1- -
1' 310215GS91 9Fi o no
10/18/2002 I1:59 3102I56 81 OVERLAND BORENSTEIN PAGE 09/14
1 2. HHC and then Tierrasanta have been the owners of the real property, Assessor's
2 Parcel No.178-301-0.1, located in Huntington Beach, California in Oran geCounty, California (the
3 . "Property"), since the land.was created as part of the original Huntington Harbour development.
4 An exact le;al description of the Property is attached hereto as Exhibit A and incorporated herein
5 by this reference. The Property is located in and adjacent to the Huntington Harbour channel area .
6 and includes both submerged and unsubmerged land.
7 3. Defendant City of Huntington Beach (the "City")is a municipal corporation duly
8 organized and existing within the laws of the state of California and located in Orange County,
9 California.
10 4. Defendant Huntington Beach City Council (the "City Council")is the duly
11 constituted legislative body of the City of Huntington Beach. (City and City Council,collectively,
12 'Defendants").
.13 5. The Property was initially zoned "R-1," or single family residential, which
14 permitted development.of single-family homes.
15 6. Subsequently, zoning suffixes to reflect the Coastal Zone ("CZ") and the Flood Plan
16 ("FP") were added.
17 7. In July 1984, the City adopted an Ordinance No. 2706 ("Ordinance 2706") that
18 adjusted the zoning for a number of areas within the City. Ordinance 2706 stated that"All
19 waterways in Huntington Harbour shall be changed from CF-R, 'Community Facilities District,'
20 combined with recreation, to WR, "Waterways Recreation District,' as shown on District Maps .:. .
21 35.
22 8. The unsubmerged portion of the Property is not a"waterway." As a result,
23 Ordinance 2706 changed the zoning on the submerged portion of the Property, but not the zoning
24 on the unsubmerged portion of the Property.
25 9. A 1989 zoning map obtained from the City showed the unsubmerged portion of the
26 Property and indicated an "R-I"zoning,allowing for single-family residential development.
27 10. In 1989,Tierrasanta acquired for fair value, title to the Property from its sister
28 corporation HHC. At the time the Property was acquired by Tierrasanta, nci.ther HHC nor
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PARTIES'STIPULATED PACTS
EXHIBIT._-_PAGE
nrT-1q_7�1r�{7 »; _- 3102156581 98x o ao
-10/18/2002 11:59 310215�1 OVERLAND BORENSTEIN PAGE 10/14
1 Ticrrasanta had any notice or knowledge of any change in the "RI"zoning designation for the
2 unsubmerged portion of the-Property. HHC was subsequently dissolved.
Tierrasanta curmntly plans to develop a single-family or low density, multifamily
4 housing on the unsubmerged portion of the property.
5 12. The zoning changes implemented by Ordinance 2706 and subsequent zoning
6 ordinances did not change the original R-1 zoning of the unsubmerged portion of the Property-
7 13. Under the zoning nomenclature in effect in 2002,the equivalent zoning to "R-1" is
8 now called"Low Tensity Residential."
9
10 Dated: October- 2002 OVERLAND &BORENSTEIN LLP
11
12 By:
Mark A. Borenstein
13 Attorneys for Plaintiff
TIERRASANTA liNC.
14
15
16 Datcd: October._, 2002 GAM HUTTON,City Attorney
17
1.8 B y:
Paul D'Alessandro
19 Attorneys for Defendants
CITY OF HUNTENGTON BEACH AND
20 1UUNTINGTON BEACH CITY COUNCIL
21
22
23
24
25
26
27
28
-3-
PARTIES'STIPULATED FACTS
EXHIBIT A - PAGE
- I n - *ZI aoi Src iqi nn.. _ -
10/18/2002 11:59 3102156581 OVERLAND BORENSTEIN PAGE 11/14
1 OVERLAND &BORENSTEIN LLP
MARK A. BORENSTEIN,Bar No. 84987
2 KELLEY B. POLEYNARD;Bar No. 196187
6060 Cen ter Drive, 7th Floor
3 Los Angeles, CA 90045
Telephone: (310) 215-6580
4 Facsimile: (310) 215-6581
5 Attorneys for Plaintiff
TIERRANSANTA, INC.
6
7 GAIL HUTTON,City Attorney
PAULD'ALESSANDRO, Assistant City Attorney,Bar No. 134111
8 2000 Main Strect,P.O. Box 190
Huntington Beach, CA 92648
9 Telephone: (714)536-5555
Facsimile: (714)374-1590
10
Attorneys for Defendants
11 CITY OF HUNTINGTON BEACH AND
HUNTINGTON BEACH.CITY COUNCIL
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR.THE COUNTY OF ORANGE
15
16 TIERRASANTA. INC., a Delaware corporation, ) Case No. 77 59 93
17 Plaintiff, . ) (PROPOSED) JUDGMENT
18 vs. )
19 CITY OF HUNTINGTON BEACH, ) Tri al Date: November 4, 2002
HUNTINGTON BEACH CITY COUNCIL,and )
20 DOES 1-50, inclusive, )
)
21 Defendants. )
22
23 Plaintiff Tierrasanta, Inc.'s ("Plaintiff') first cause of action for Declaratory Relief against
24 Defendant City of Huntington Beach ("City") came on for trial on stipulated facts. After
25 consideration of those facts and the submissions of counsel,
26
27 IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT
28
[PROPOSED]JUDGMENT
FXHIBrT_ PAGE
nrr_,o_-�gra-� �. n 'i1 Gi71 SASAi oa•. _ _ _
18/2002 11:59 3102156561 OVERLAND BORENSTEIN
PAGE 12/14
1 1. Plaintiff shall have judgment against the City on the first cause of action; and
2
3 2. The.Court declares the rights of the parties as follows:
4 a. Ordinance 2706 adopted by the City in July 1984, rezoned only the
5 submerged portion of the real property owned by Plaintiff, Assessor's Parcel No.178-301-01,
6 located in Huntington Beach, California in Orange County, California(the "Property")and the R.-1
7 zoning on the unsubmerged portion of the Property was not changed by Ordinance 2706 or any
8 other ordinance since 1984. An exact legal description of the Property is attached hereto as Exhibit
. 9 A and is incorporated herein by this reference.
10 b. The zoning designation of the unsubmerged portion of the Property is
11 declared to be "RI-Coastal Zone-Flood Plan," or the equivalent designation permitting low density
12 residential development.
13. C. The "RI-CZ-FP"or equivalent zoning designation is hereby reinstated for
14 the unsubmerged portion of the Property.
1S
16 3. Each party shall bear. its own costs and attorneys' fees.
17
18 Dated: , 2002
C. ROBERT JAMESON
19 Judge of the Superior Court
20
21 Submitted by:
22
OVERLAND &BORENSTEIN LLP
23 MARK A. BORENSTEIN
KELLEY B. POLEYNARD
24
25
By:
26 Mark A. Borenstein
Attorneys for Plaintiff
27 TIERRASANTA, INC.
28
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(PROPOSED)JUDGMENT
EXHIBIT.-D PAGE
7 IX)1 SF,SA1 Mcn- — —
10/18/2002 11:59 3102156581 OVERLAND BORENSTEIN PACE 13/14
E UBIT A
Beginning at the southwest corner of Tract 5775 as shown on a map
recorded. in Book .21.0, • pages 11 and 12, Miscellaneous Maps, Records.
of Orange County; thence North 00008107" West 60. 00. feet along the
west line of said tract to a point on a non-tangent curve, said
curve being concave to the northwest and having a radius of 30.00
feet; thence easterly and northerly along said curve thru a central
angle of 90*00100" an arc distance of 47 .12 feet to a pointythence
South 89051153" West 24 .14 feet to a point; thence North 19°b0' 00"
West 532 . 23 feet along the west line of said tract to a point, said
point being -the northwest corner of said tract; thence South 71000100"
West 200. 00 feet along the westerly prolongation of the northwesterly .
line of said tract to a point, said point being on the centerline
of a 400. 00 foot wide State of California Channel (extended) as shown
on said tract mapj thence South 19°'00100" East 565.00 feet along said
centerline to a point, said point being on the centerline of Warner
Avenue; thence North 890.51'53" East 174.74 feet along the centerline
i of Warner Avenue to the Point of Beginning.
Excepting therefrom that portion previously dedicated for highway
purposes.
EXHIBIT-IL-PAGE l�
OCT-18-2002 12:14 3102156581 98% P.13
.10/18/2002 12:59 3102156581 OVERLAND BORENSTEIN PAGE 02/02
A�TQ.,V€Y OR PARTY WITHOUT ATTORNEY(Nam prd Addres2]_ T' FPNONE 0: FOR COURT USE ONLY
M2r1C A. Borenstein (SBN 84M) (316� 215-�580
Overland&Borenstein LLP
6060 Center Drive, 7th Floor
Lgsn�eles. C�90� Tierrasanta. Inc.
ATT R. F R tNamo): ain i
Ineat name of coon Pnd nama of)uCIdel divider and branch Court.If wry:
Change County Superior Court
PLAINTIFF/PETITIONER. Tierrasenta, Inc.
D=_FENDANTIRESPONDENT: City of Huntington Beach, et. al.
REQUEST FOR DISMISSAL CASE NUMBER:
0 Personal Injury, Property Damage, or Wrongful Death
= Motor Vehicle C] Other
�] Family Law
Eminent Domain
® Other(specify): Declaratory Relief; Inverse Condemnation 77 59 93
— A conformed copy will not be returned by the clerk unless a method of return Is provided with the document.—
1.TO THE CLERK: Please dismiss this action as follows:
a. (1)F_71 With prejudice (2) Q Without prejudice
b.(1) [] Complaint (2) Petition
(3) Cross-complaint filed by(name): on (date):
(4) Q Cross-complaint filed by(name): . on (date):
(5).0 Entire action of all parties.and all causes of action
(6) [RD other (specify):*..All.causes of action against defendant City.Coutncil of.the City of Huntington .
Beach and the Second Cause of Action for Inverse Condernn Won alleged in the
Date: November _, 2002 Second Amended Complaint herein, filed on April 22,2002
Mark A. Borenstein
! YPE OR PRINT NA ME OF ®ATTDRNEY❑PARTY WITHOUT ATTORNEY) (SIGMATURE)
Ir dlsmissal requested is or specified parties only,of spedfled causes or Attorney or party without attorney for:
action only.or or spearied cross-complaints only,so state and Identify
t`e parties.causes of action,or uoss-compta)nte to be dismissed. ® Plaintiff/Petitioner 0 DefendanVRespondent
�] Cross-complainant
2.TO THE CLERK: Consent to the above dismissal is hereby given"
(TYPE OR PRINT NAME OF ATTORNEY rl PARTY WITHOUT ATTORNEY) (SIGNATURC)
-If:cross-complaint—or Resconse(Family Lew)seeking ainrmlive Attorney or party without attorne for: 1
roller.-fs on Me.Ina attorney for cro complainant(respondent)must
sign this consent it requirod by Code of CiA Procedure section 581() l� Plaintiff/Petitioner DefendanVRespondent
Cross-complainant
i
(To be completed by clerk).
3. 0 Dismissal entered as requested on(date):
4. [� Dismissal entered on(date): as to only(name):
5. [� Dismissal not entered as requested for the following reasons(specify):
6. Q a. Attorney or party without attomey notified on (date):
b.Attorney or party without attorney not notified. Filing party failed to provide
Q a copy to conform [] means to return conformed copy
Date. Clerk,by ,Deputy
Farm Adc:lgd by tno REQUEST FOR DISMISSAL Colo of CIN1 Prxedurw.§581 at:sq.
Jsdlckv cm-nd)Or call%mla C.I.Rutee d Coon.nkz:383,1233 '
9S2(e)(5:lRev.January 1 19971
1d Judicial Council rarnu jIr r!n[Dne.T�
EXHIBIT P
CCT-18-2002 13:11 3102156581 97% . P•02
IGINALOR �
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE 'Y'`F�
This Settlement Agreement and Mutual General Release ("Agreement") is made and
entered into effective as of October 21, 2002, by and between: Tierrasanta, Inc. ("Tierrasanta")
and the City of Huntington Beach ("City") and the Huntington Beach City Council ("Council")
(Tierrasanta, City and City Council are hereinafter collectively referred to as the "Parties").
Recitals
This Agreement is made with reference to the following Recitals:
1. Tierrasanta and its predecessor, Huntington Harbour Corporation ("HHC") have
been the owners of the real property, Assessor's Parcel No.178-301-01, located in Huntington
Beach, California in Orange County, California (the "Property"), since the land was created as part
of the original Huntington Harbour development. The Property is located in and adjacent to the
Huntington Harbour channel area and includes both submerged and unsubmerged land.
2. The Property was initially zoned "R-1," or single family residential, which
permitted development of single-family homes.
3. In July 1984, the City adopted an ordinance (No. 2706) ("Ordinance 2706") that
adjusted the zoning for a number of areas within the City. Ordinance 2706 stated that "All
waterways in Huntington Harbour shall be changed from CF-R, `Community Facilities District,'
combined with recreation, to WR, "Waterways Recreation District,' as shown on District Maps . . .
35."
4. The unsubmerged portion of the Property is not a "waterway." As a result,
Ordinance 2706 changed the zoning on the submerged portion of the Property, but not the zoning
on the unsubmerged portion of the Property.
5. In 1984, HHC granted the City a revocable easement to use the Property as a
parking lot and small boat launching facility ("Easement").
6. Subsequently, zoning suffixes to reflect the Coastal "Zone ("CZ") and the Flood Plan
("FP") were added.
T�.
7. The zoning changes implemented by Ordinance 2706 and by zoning ordinances
since did not change the RI-CZ-FP zoning of the unsubmerged portion of the Property.
8. Following the City's December 1996 notice of the zoning change to the Property, in
February 1997, Tierrasanta filed a petition for writ of mandate and complaint against the City and
Council in the Orange County Superior Court, entitled Tierrasanta, Inc, v. City of Huntington
Beach, et. al., Case No. 775993, for declaratory relief, inverse condemnation, mandate, and
injunctive relief("Action"). Defendants demurred to the Petition and Complaint, which was
sustained in its entirety by the trial court. Following Tierrasanta's appeal of the trial court's ruling,
Tierrasanta's causes of action for mandate and injunctive relief were dismissed, but Tierrasanta
was permitted to proceed with its causes of action for Declaratory Relief and Inverse
Condemnation. The Action is currently pending.
9. On or around January 25, 2002, Tierrasanta recorded notice of termination of the
Easement on the Property.
10. It is now the desire of the Parties to fully and finally settle and resolve, for valuable
consideration, the Action without resort to further litigation, and without admitting any liability.
Allreement and Mutual Release
NOW,THEREFORE, in consideration of the covenants and conditions contained herein, and
for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
11. Reinstatement of R-1-CZ-FP Zoning. The Parties will submit the first cause of
action against the City to Judge Jameson for his decision, on facts stipulated to by the Parties, that
the Superior Court enter a declaratory judgment reinstating the R-1-CZ-FP (or equivalent) zoning
on the unsubmerged portion of the Property. The Stipulated Facts and proposed Judgment are
attached hereto as Exhibit "A" and `B," respectively.
12, Dismissal of Action. Within 5 days after entry of a Declaratory Judgment by the
Superior Court as described in paragraph 13, Tierrasanta shall dismiss all causes of action against
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the City Council of the City, and the remainder of the Action, including the cause of action for
inverse condemnation, against the City, in the form attached hereto as Exhibit C.
13. Submission of General Plan Amendment. Upon submittal of an application by
Tierrasanta for a General Plan amendment, the City staff will expeditiously process an amendment
to the City's General Plan to re-instate the R-1-CZ-FP (or equivalent) General Plan designation for
the unsubmerged portion of the Property, in accordance with the Court's judgment. In any
proceedings before the Coastal Commission, concerning the unsubmerged portion of the Property,
the City will acknowledge the R-1-CZ-FP (or equivalent) zoning oil the Property.
14. Easement.
(a) Tierrasanta shall record within 5 days after entry'of a Declaratory Judgment
by the Superior Court as described in paragraph 13, a notice of rescission of the notice of
termination of the Easement on the Property, recorded on January 25, 2002, and shall not initiate
proceedings to evict the City from the Property.
(b) The City and Tierrasanta agree that the Easement may be terminated on 180
days' written notice by Tierrasanta, for any reason, on or after the earlier of(i) July 22, 2005, or (ii)
if the term of the Construction and Operation Contract between the City of Huntington Beach and
the California Department of Boating and Waterways, dated July 22, 1985 (the "Contract") is
amended to a shorter term or will end earlier than July 22, 2005, at any time after the expiration of
the shorter term. Tierrasanta will cooperate with the City to prevent breach by the City of Articles
V-A and V-B of the Contract.
(c) Within 30 days following the effective date of the termination of the
Easement by Tierrasanta in accordance with paragraph 16(b) of this Agreement, the City will
return the Property to Tierrasanta in the condition it existed on the date reflected in the first
paragraph of this Agreement, with the exception that the City shall remove the parking meters, boat
dock and associated lights from the Property prior to its return.
15. Release. With the exception of the Parties' rights, obligations, representations or
warranties expressly set forth in this Agreement,Tierrasanta, on the one hand, and Defendants, on
the other hand, mutually release and discharge each other and their respective predecessors,
-3-
successors and assigns, employees, agents, attorneys and administrators, if any, from any and all
claims, demands, debts, losses, obligations, liabilities, costs, expenses, rights of action and causes
of action, in law or in equity, whether known or unknown, suspected or unsuspected, arising prior
to the execution.of this Agreement, including, without limitation, those in any way connected
directly or indirectly to any facts, claims, causes of action or defenses asserted in or relating to the
Action. The Parties further represent and warrant that they will not commence or maintain any
claim, demand, right of action or cause of action, against the Parties hereto or anyone else, related
to or arising out of the Action or the facts that give rise to the Action, except for any breach of this
Agreement.
16. Waiver of Unknown Facts and Circumstances. The Parties understand and agree
that the claims released by this Agreement include all claims of every nature and hind whatsoever
within the scope of the mutual release in paragraph 17, above, including both those they know
about and those they may not know about, and both those they suspect and those they may not
suspect. The Parties expressly waive all rights afforded by Section 1542 of the California Civil
Code and any other statute that limits the effect of a release with respect to unknown claims. The
Parties have been fully advised by their counsel and understand the contents and consequences of
Section 1542, which provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
The Parties acknowledge that, after entering into this Agreement, they may discover facts
different from, or in addition to, those which they now know or believe to be true with respect to
the claims released by this Agreement, and agree that this Agreement and the releases it contains
shall remain effective in all respects despite the discovery of such different or additional facts.
-4-
17. Each Party to Bear Own Costs and Fees. Each of the Parties shall bear its own fees
and costs arising out of or relating to the Action and the preparation of this Agreement.
18. Assignment of Claims. The Parties represent and warrant that there has been no
assignment or other transfer of any interest in any of the claims released by this Agreement. The
Parties agree to indemnify and hold each other harmless from any liability, claims, demands,
damages, costs, expenses and attorneys' fees incurred by the other as a result of any person
asserting any such assignment or transfer.
19. No Third-Party Beneficiaries. There are no third-party beneficiaries, whether
intended, expressed or implied, of this Agreement.
20. Governing Law. This Agreement shall be governed by and construed in accordance;
with the laws of the State of California.
21. Entire Agreement. This Agreement contains the entire agreement of the Parties and
may be modified only by a written instrument executed by each party hereto.
22. Construction. No provision of this Agreement shall be construed against any party
or its counsel merely because that party or its counsel drafted the provision in question. For-
purposes of California Civil Code Section 1654, and all other similar purposes, this Agreement
shall be deemed to be drafted by each party to the Agreement.
23. Authority to Sign. The signatories for the Parties warrant and represent that they
have full authority to execute this Agreement on behalf of each respective party.
24. Execution in Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
25. Enforcement of Agreement. The Parties agree that the Court shall retain
jurisdiction to enforce the terms of this Agreement, pursuant to section 664.6 of the California
Code of Civil Procedure.
-5-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth above.
Dated: 2002 TIERRASANTA, INC.
12
By:
Name: a and F. Logan, Pre ' ent
Dated: 02002 CITY OF HUNTINGTON BEACH
By:
_ kaAgd F
Name:MA now
APPROVED AS TO FORM AND CONTENT
Dated: 1 �Q , 2002 OVE LAND &BORENS
Y�
Mark Borenstein, Attorneys for
Tierrasanta, Inc.
GAIL HUTTON, CITY ATTORNEY
ATTEST: •
By: `�-
Paul D'Alessandro, Assistant City Attorney,
Attorneys for City of Huntington Beach and
Huntington Beach City Council
CITY CLERKa9�z
-6-
I OVERLAND &BORENSTEIN LLP
MARK A. BORENSTEIN, Bar No. 84987
2 KELLEY B. POLEYNARD, Bar No. 196187
6060 Center Drive, 7th Floor
3 Los Angeles, CA 90045
Telephone: (310) 215-6580
4 Facsimile: (310) 215-6581
5 Attorneys for Plaintiff
TIERRANSANTA, INC.
6
7 GAIL HUTTON, City Attorney
PAUL D'ALESSANDRO, Assistant City Attorney, Bar No. 134111
8 2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
9 Telephone: (714) 536-5555
Facsimile: (714) 374-1590
10
Attorneys for Defendants
11 CITY OF HUNTINGTON BEACH AND
HUNTINGTON BEACH CITY COUNCIL
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF ORANGE
15
16 TIERRASANTA, INC., a Delaware corporation, ) Case No. 77 59 93
17 Plaintiff, ) STIPULATED FACTS
18 vs. )
19 CITY OF HUNTINGTON BEACH, ) Trial Date: November 4, 2002
HUNTINGTON BEACH CITY COUNCIL, and )
20 DOES 1-50, inclusive, )
21 Defendants. )
22
23 The parties stipulate to the following facts:
24 li: Plaintiff Tierrasanta, Inc. ("Tierrasanta" or "Plaintiff') is a corporation organized
25 pursuant to the laws of Delaware and has, since its formation in 1977, been registered to do
26 business in California. Tierrasanta, Inc. is the successor-in-interest to Huntington Harbour
27 Corporation ("HHC"). HHC and Tierrasanta, in 1989, were both a wholly-owned subsidiary of
28 The Christiana Companies.
PARTIES''STIPULATED ACTS
EMIB1T��� PAG
1 2. HHC and then Tierrasanta have been the owners of the real property, Assessor's
2 Parcel No.178-301-01, located in Huntington Beach, California in Orange County, California (the
3 "Property"), since the land was created as part of the original Huntington Harbour development.
4 An exact legal description of the Property is attached hereto as Exhibit A and incorporated herein
5 by this reference. The Property is located in and adjacent to the Huntington Harbour channel area
6 and includes both submerged and unsubmerged land.
7, 3. Defendant City of Huntington Beach (the "City") is a municipal corporation duly
8 organized and existing within the laws of the state of California and located in Orange County,
9 California.
10 4. Defendant Huntington Beach City Council (the "City Council") is the duly
11 constituted legislative body of the City of Huntington Beach. (City and City Council, collectively,
12 "Defendants").
13 5. The Property was initially zoned "R-1," or single family residential, which
14 permitted development of single-family homes.
15 6. Subsequently, zoning suffixes to reflect the Coastal Zone ("CZ") and the Flood Plan
16 ("FP") were added.
17 7. In July 1984, the City adopted an Ordinance No. 2706 ("Ordinance 2706") that
18 adjusted the zoning for a number of areas within the City. Ordinance 2706 stated that "All
19 waterways in Huntington Harbour shall be changed from CF-R, `Community Facilities District,'
20 combined with recreation, to WR, "Waterways Recreation District,' as shown on District Maps . . .
21 35."
22 8. The unsubmerged portion of the Property is not a "waterway." As a result,
23 Ordinance 2706 changed the zoning on the submerged portion of the Property, but not the zoning
24 on the unsubmerged portion of the Property.
25 9. A 1989 zoning map obtained from the City showed the unsubmerged portion of the
26 Property and indicated an "R-1" zoning, allowing for single-family residential development.
27 10. In 1989, Tierrasanta acquired for fair value, title to the Property from its sister
28 corporation HHC. At the time the Property was acquired by Tierrasanta, neither HHC nor
-2-
PARTIES'STIPULATED FACTS
EXHIBIT PAGE 8
I Tierrasanta had any notice or knowledge of any change in the "RI" zoning designation for the
2 unsubmerged portion of the Property. HHC was subsequently dissolved.
3 11. Tierrasanta currently plans to develop a single-family or low density, multifamily
4 housing on the unsubmerged portion of the property.
5 12. The zoning changes implemented by Ordinance 2706 and subsequent zoning
6 ordinances did not change the original R-1 zoning of the unsubmerged portion of the Property.
7 13. Under the zoning nomenclature in effect in 2002, the equivalent zoning to "R-1" is
8 now called "Low Density Residential."
9
10 Dated: October_, 2002 OVERLAND &BORENSTEIN LLP
11
12 By:
Mark A. Borenstein
13 Attorneys for Plaintiff
TIERRASANTA INC.
14
15
16 Dated: October_, 2002 GAEL HUTTON, City Attorney
17
18 By:
Paul D'Alessandro
19 Attorneys for Defendants
CITY OF HUNTINGTON BEACH AND
20 HUNTINGTON BEACH CITY COUNCIL
21
22
23
24
25
26
27
28
-3-
PARTIES'STIPULATED FACTS
EXHIBIT_A PAGE 9
I OVERLAND &BORENSTEIN LLP
MARK A. BORENSTEIN, Bar No. 84987
2 KELLEY B. POLEYNARD, Bar No. 196187
6060 Center Drive, 7th Floor
3 Los Angeles, CA 90045
Telephone: (310) 215-6580
4 Facsimile: (310) 215-6581
5 Attorneys for Plaintiff
TIERRANSANTA, INC.
6
7 GAIL HUTTON, City Attorney
PAUL D'ALESSANDRO, Assistant City Attorney, Bar No. 134111
8 2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
9 Telephone: (714) 536-5555
Facsimile: (714) 374-1590
10
Attorneys for Defendants
11 CITY OF HUNTINGTON BEACH AND
HUNTINGTON BEACH CITY COUNCIL
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF ORANGE
15
16 TIERRASANTA, INC., a Delaware corporation, ) Case No. 77 59 93
17 Plaintiff, ) [PROPOSED] JUDGMENT
18 vs. )
19 CITY OF HUNTINGTON BEACH, ) Trial Date: November 4, 2002
HUNTINGTON BEACH CITY COUNCIL, and )
20 DOES 1-50, inclusive, )
21 Defendants. )
22
23 Plaintiff Tierrasanta, Inc.'s ("Plaintiff') first cause of action for Declaratory Relief against
24 Defendant City of Huntington Beach ("City") came on for trial on stipulated facts. After
25 consideration of those facts and the submissions of counsel,
26
27 IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT
28
[PROPOSED] JUDGMENT
EXHIBIT_ PAGE
1 1. Plaintiff shall have judgment against the City on the first cause of action; and
2
3 2. The Court declares the rights of the parties as follows:
4 a. Ordinance 2706 adopted by the City in July 1984, rezoned only the
5 submerged portion of the real property owned by Plaintiff, Assessor's Parcel No.178-301-01,
6 located in Huntington Beach, California in Orange County, California (the "Property") and the R-1
7 zoning on the unsubmerged portion of the Property was not changed by Ordinance 2706 or any
8 other ordinance since 1984. An exact legal description of the Property is attached hereto as Exhibit
9 A and is incorporated herein by this reference.
10 b. The zoning designation of the unsubmerged portion of the Property is
11 declared to be "Rl-Coastal Zone-Flood Plan," or the equivalent designation permitting low density
12 residential development.
13 C. The "Rl-CZ-FP" or equivalent zoning designation is hereby reinstated for
14 the unsubmerged portion'of the Property.
15
16 3. Each party shall bear its own costs and attorneys' fees.
17
18 Dated: , 2002
C. ROBERT JAMESON
19 Judge of the Superior Court
20
21 Submitted by:
22 OVERLAND &BORENSTEIN LLP
23 MARK A. BORENSTEIN
KELLEY B. POLEYNARD
24
25
By:
26 Mark A. Borenstein
Attorneys for Plaintiff
27 TIERRASANTA, INC.
28
-2-
[PROPOSED] JUDGMENT
EXHIBIT PAGE
EXHIBIT A
Beginning at the southwest corner of Tract 5775 as shown on a map
recorded in Book 210, pages 11 and 12, Miscellaneous Maps, Records
j of Orange County; thence North 00008107" West 60.00 feet along the
west line of said tract to a point on a non-tangent curve, said
curve being concave to the northwest and having a radius of 30.00
feet; thence easterly and northerly along said curve thru a central
i angle of 90000100" an arc distance of 47.12 feet to a point; 'thence
i South 89051153" West 24 .14 feet to a point; thence North 190b0 ' 00"
West 538.23 feet along the west line of said tract to a point, said
i point being the northwest corner of said tract; thence South 71°00 '00"
West 200.00 feet along the westerly prolongation of the .northwesterly
if line of said tract to a point, said point being on the centerline
of a 400. 00 foot wide State of California Channel (extended) as shown
on said tract map; thence South 19000100" East 565.00 feet along said
centerline to a point, said point being on the centerline of Warner
Avenue; thence North 89051153"East 174.74 feet along the centerline
of Warner Avenue to the Point of Beginning.
Excepting therefrom that portion previously dedicated for highway
purposes.
EXHIBIT PAGE �O�
ATTORNEY OR PARTY WITHOUT ATTORNEY(Name and Address): TELEPHONE NO.: FOR COURT USE ONLY
Mark A. Borenstein(SBN 84987) (310) 215-6580
Overland& Borenstein LLP
6060 Center Drive, 7th Floor
Los Angeles C�90�4
ATTORNEY F R(Nar�ie): ant 1 Tierrasanta, Inc.
Insert name of court and name of judicial district and branch court,if any:
Orange County Superior Court
PLAINTIFF/PETITIONER: Tierrasanta, Inc.
DEFENDANT/RESPONDENT: City of Huntington Beach, et. al.
REQUEST FOR DISMISSAL CASE NUMBER:
Personal Injury, Property Damage, or Wrongful Death
= Motor Vehicle 0 Other
Family Law
Eminent Domain
Other(specify): Declaratory Relief• Inverse Condemnation 77 59 93
— A conformed copy will not be returned by the clerk unless a method of return is provided with the document.—
1.TO THE CLERK: Please dismiss this action as follows:
a. (1) With prejudice (2) Q Without prejudice
b.(1) 0 Complaint (2) 0 Petition
(3) Cross-complaint filed by(name): on (date):
(4) 0 Cross-complaint filed by(name): on (date):
(5) 0 Entire action of all parties and all causes of action
(6) X� Other (specify):' All causes of action against defendant City Council of the City of Huntington
Beach and the Second Cause of Action for Inverse Condemnation alleged in the
Date: November _, 2002 Second Amended Complaint herein, filed on April 22, 2002
Mark A. Borenstein
(TYPE OR PRINT NAME OF ®ATTORNEY❑PARTY WITHOUT ATTORNEY) (SIGNATURE)
If dismissal requested is of specified parties only,of specified causes of Attorney or party without attorney for:
action only, or of specified cross-complaints only, so state and identify
the parties,causes of action,or cross-complaints to be dismissed. Plaintiff/Petitioner Defendant/Respondent
Cross-complainant
2.TO THE CLERK: Consent to the above dismissal is hereby given."
Date:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(TYPE OR PRINT NAME OF ATTORNEY❑PARTY WITHOUT ATTORNEY) (SIGNATURE)
If a cross-complaint—or Response(Family Law)seeking affirmative Attorney or party without attorney for:
relief—is on file,the attorney for cross-complainant(respondent)must plaintiff/Petitioner 0 Defendant/Respondent
sign this consent if required by Code of Civil Procedure section 581(i)
or(j) Cross-complainant
(To be completed by clerk)
3. Dismissal entered as requested on(date):
4. 0 Dismissal entered on(date): as to only(name):
5. 0 Dismissal not entered as requested for the following reasons(specify):
6. 0 a. Attorney or party without attorney notified on (date):
b. Attorney or party without attorney not notified. Filing party failed to provide
a copy to conform means to return conformed copy
Date: Clerk, by Deputy
Form Adopted by the REQUEST FOR DISMISSAL Code of Civil Procedure,§581 et seq.
Judicial Council of California Cal. Rules of Court,rules 383.1233
982(a)(5)[Rev. January 1.19971 EXHISIT � PAG / Judicial Council Forna'for HotDocs.m