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Home My WebLink AboutRobert C. Terry, Terry Buick, Inc. & Terry Leasing, Inc. - 1992-04-06 ' REQUEST F6mrC TTY COUNCIL/REDEVELOPMENi-,r�GENCY ACTION Date: April 6, 1992 SUBMITTED TO: Honorable Mayor and City Councilmembers APPROVED BY CITY COUNCIL SUBMITTED BY: Connie Brockway, City Clerk !92Z PREPARED BY: jya� TY C E Ms SUBJECT: AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE OF CLAIMS —TERRY SETTLEMENT Consistent with Council Policy? (X) Yes (} New Policy or Exception Statement of Issue. Recommendation. Analysi 3. Funding Source, Alternative Actions. Attachments: STATEMENT OF ISSUE: On 3/31/92 the Agreement of Settlemen. and Mutual General Release of Claims between the City Council/Redevelopment Agency and Robert C. Terry, Terry Buick, Inc. and Terry Leasing, Inc. was sent to the City Clerk's Office by the City Attorney's Office for execution. The City Attorney's Office: had already obtained the Mayor/Chairman's signature on the agreement on behalf of the City Council/Redevelopment Agency. The City Clerk could not execute the agreement as the agreement had not been before the City Council. RECOMMENDATION: Approve Agreement of Settlement and Mutual Release of Claims between the City of Huntington Beach. the Huntington Beach Redevelopment Agency and Robert C. Terry D.C., Terry Buick, Inc. and Terry Leasing. Inc. and authorize execution by the Mayor/Chairman and City Clerk/Clerk on behalf of the City Council and Redevelopment Agency. ANALYSIS: The City Clerk cannot legally execute agreements on behalf of the City Council/Redevelopment Agency on which only closed session deliberations have taken place. A motion and vote must be recorded in the regular session of the City Council. This issue is now on the Council/Agency agenda in another format E-13a. Because the Settlement Agreement referred to in the. E-13a RCA is not the attached agreement it is required that the record reflect that thL- attached agreement which the City Attorney requested the City Clerk to execute on 3/31/92 bearing the signature of the Mayor/Chairman and the signatures of the Terrys is to be destroyed in order to prevent future misunderstanding by the City/Agency and the Terrys. FUNDING SOURCE: Redevelopment Agency Funds AUTERNATBI ACTLIONS: Approve agenda item E-13a and direct the removal of the Mayor's signature on the attached partially executed agreement as it was not obtained and attested to by the City Clerk as a result of Council/Agency action. ATTACHMENTS: Settlement Agreement 1079K f j�� AGREEMENT OF SFTTLEM and MUTUAL GENERALRELEASEOF-CLAIMS THIS AGREEMENT OF SETTLEKENT AND MUTUAL GENERAL RELEASE OF CLAIMS (hereinafter referred to as "Agreement") is made and entered into as of the 6th day of • ADril 1992, by and between ROBERT COLLINS TERRY, D.C. TERRY BUICK, INC. and TERRY LEASING, INC. (hereinafter referred to as "Plaintiffs") , and CITY OF HUNTINGTON BEACH and REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH (hereinafter referred to as "Defendants") . WHEREAS, a dispute for the payment of money has arisen between Plaintiffs and Defendants; and -WHEREAS, Plaintiffs have filed a Complaint for damages in Orange County Superior Court and Defendants have filed a Cross- Complaint; and WHEREAS, the parties hereto have reached an agreement to resolve their dispute, to terminate all litigation and to settle all claims. NOW, THEREFORE, the parties do hereby mutually agree as follows: 1. Defendants shall pay to Robert Collins Terry, on or before April 1, 1992, the sum of $65,000.00. Plaintiffs and Defendants shall dismiss with prejudice the Complaint and Cross- Complaint, in Case No. 668865, filed in the Orange County Superior Court. In addition, the City .Attorney of Huntington Beach agrees that she will seek the cooperation of the Planning Department and Planning Commission to seek a variance for the property of Robert Collins Terry at 19551 Beach Boulevard, Huntington Beach, Califor- nia. The agreement would simply be a meeting where the City Attorney would request some type of equity for Mr. Terry, who has a 70 feet frontage on Beach Boulevard and has no means of acquiring an additional 30 feet, to have 100 feet for conforming uses in the area. The parties understand there is no guarantee of success with respect to a variance grant, but the City Attorney's office will use their best efforts to assist in seeking such variance by providing the information in their file on the subject. 2. Each party does hereby release and forever discharge the other parties and their heirs, successors, representatives, assigns, agents, employees and attorneys, and each of them, of and from any and all claims, debts, liabilities, demands, obligations, costs, expenses, actions and causes of action of every nature, character and description, known or unknown, which each party now owns or holds or has at any time heretofore owned or held, or may at any time own or hold, by reason of any matter, cause or thing whatsoever occurred, done, omitted or suffered, to be done prior to the date of this instrument, including, but without limiting the generality of the foregoing, the claims and causes of action arising out of the facts set forth in the Complaint filed as Case No. 668865 in the Orange County Superior Court. 3. Each party waives and relinquishes all rights and bene- fits afforded by Section 1542 of the Civil Code of the State of California. Each party underEtands that the facts in respect of which the release made in this instrument is given may hereafter turn out to be other than or diff erent from the facts in that connection now known or believed by each party to be true; and each party hereby accepts and assumes the risk of the facts turning out to be different and agrees that this instrument shall be and remain in all respects effective and not subject to termination or rescission by virtue of any such difference in facts. Section 1542 of the Civil Code of the State of California reads as follows: "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. " 4 . Each party represents and warrants that he has not heretofore assigned or transferred or purported to assign or transfer, to any person, firm or corporation whomsoever any claim, debt, liability, demand, obligation, cost, expense, action or cause of action herein released. Each party agrees to indem- GLR:3/11/92 -2- s reify and hold harmless the other party against any claim, debt, liability, demand, obligation, cost, expense, action or cause of action based on, arising out of or in connection with any such transfer or assignment or purported transfer or assignment. 5. Each party acknowledges that, except as herein express- ly set forth, no representations of any kind or character have been made to him by the other party, or by any of the other party's agents, representatives, or attorneys, to induce the execution of this agreement. 6. Each party acknowledges that this instrument effects the settlement of claims which are denied and contested by the other party, and that nothing contained herein shall be construed as an admission of liability by or on behalf of either party, by whom liability is expressly denied. 7. Each party acknowledges that he has been represented by counsel of his own choice throughout all of the negotiations which preceded the execution of this instrument. 8. This instrument shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, repre- sentatives, successors and assigns. 9. Each party agrees that he will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding against the other party, based on, arising out of, or in connection with any claim, debt, liability, demand, obligation, cost, expense, action or cause of action that is released and discharged by reason of this instrument. 10. This instrument is wade and entered into in the state of California and shall be interpreted and enforced under and pursuant to the laws of said Jurisdiction. 11. Wherever in this instrument the context may require, the masculine gender shall be deemed to include the feminine and/or neuter, and the singular to include the plural. 12. This instrument may be executed in separate counter- parts and shall become effective when such separate counterparts have been exchanged between all. parties. GLR:3/11/92 -3- IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the day and year first above written. CITY OF HUNTINGTON BEACH By 46le J �1111tk1- ROBERT COLLINS TERRY JAXXS SILVA, /AAJOR D.C. TERRY BUICK, INC. REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By By ROBERT COLLINS TERRY J S SILVA) CL ajr m&pj BY "Defendants" � �� /90LORES MARIE TERRY ATTEST: TERRY LEASING, INC. By t CIJ, ROBERT COLLINS TERRY City Clerk 7'/1/g� Byxfz1-1 ,,�- 'DOLORES MARIE TERRY "Plaintiffs" Clerk 9� APPROVED AS TO FORM: CITY ATTORNEY gen y Counsel (,, 3 -3 GLR: 3/11/92 -4-