1990-0503_TIMNEY, DONNA_Settlement Agreement and Release of Certain ClaimsSETTLEMENT AGREEMENT AND RELEASE OF CERTAIN CLAIMS
I. PARTIES
1.1 The parties to this Settlement Agreement are: The San
Juan Capistrano Redevelopment Agency ("Agency") and Donna Timney
("Timney").
II. RECITALS
2.1 Agency is a duly formed public entity under the Community
Redevelopment Law as contained in Health & Safety Code §33000, et
seq. Donna Timney is the owner of a business called the San Juan
Saloon which is located at 26755 Verdugo Street, San Juan
Capistrano, California. The San Juan Saloon is located within the
redevelopment area on Lot 4 of Tract 134.
2.2 Agency has determined that it is necessary and
appropriate under the guidelines set forth in the redevelopment
plan which has been adopted by the City of San Juan Capistrano, to
acquire the ground lease in and to Lot 4 of Tract 134 from Douglas
Gamette who acquired the ground lease by virtue of a foreclosure.
On September 1, 1984, a 10 year lease was entered into between
Timney and Kenneth Machen, the previous owner of the ground lease
for the premises located at 26755 Verdugo Street, San Juan
Capistrano, California.
2.3 Agency has decided that in order to redevelop the
property it is necessary that the property be vacated, and leased
to a new tenant. Timney is unwilling to become the tenant under
the redevelopment conditions that may be posed by the Agency.
2.4 On or about January 16, 1990, Douglas Gamette instituted
unlawful detainer proceedings against Timney claiming that her 10
year lease which began on September 1, 1984 was terminated by
virtue of the foreclosure on the Deed of Trust by Mr. Gamette.
Said case is entitled Gamette V. Timney, et al., Orange County
Municipal Court Case No. 060092.
2.5 On or about April 2, 1990, Judgment was rendered in favor
of Douglas Gamette for possession of the premises located at 26755
Verdugo Street, San Juan Capistrano, California. Timney wishes to
appeal said judgment but is willing to forego her right to appeal
in consideration for the agreement set forth herein.
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3.1 Agency will pay the sum of One Hundred Thousand
($100,000) Dollars to Timney provided the below conditions are
satisfied, only concurrently or immediately after the close of
escrow with respect to the acquisition of the ground lease from
Gamette. This payment is in lieu of any relocation, eminent domain
or any other claims Timney may have. Said payment will be in the
form of a certified Cashier's Check made payable to Donna Timney
and Hickey & Neuland, her attorneys.
3.2 Timney agrees that she will not appeal the judgment for
possession in favor of Gamette in the action referred to above, and
will make no further claims to any rights of possession of the
premises.
3.3 After Agency acquires the ground lease from Gamette
Agency will allow Timney five business days to remove all personal
property and fixtures as set forth in Paragraph IX below, if
Gamette has not already done so.
3.4 Timney will provide to Agency, on or before the close of
escrow between Agency and Gamette a complete satisfaction of
judgment and/or a release of any and all liens against the ground
lease being acquired by Agency that may arise out of the action
entitled Patricia Gross v. Donale Albert, et al., Orange County
Municipal Court Case No. 048533.
3.5 Agency must be satisfied that no other liens or
encumbrances exist with respect to the leasehold interest
previously held by Timney, and if not satisfied Timney will defend,
indemnify and hold Agency harmless from any such claims pursuant to
an indemnity agreement approved by Agency.
3.6 Agency must be satisfied that Donale Albert (Timney Is ex-
husband) has no claim to any compensation or to the ground lease
being acquired by Agency.
IV RELEASE
4.1 Timney hereby releases Agency, the City of San Juan
Capistrano, and their officers, agents, and employees from any
rights to relocation benefits pursuant to Government Code §7260.
Timney also releases Agency completely from any and all liability
under Code of Civil Procedures §1263.510 for loss of good will
and/or any other liability for any damages which Timney may be
entitled to under the Eminent Domain Law. Timney also agrees to
waive all rights under Civil Code §1542 which states: "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, would have materially affected his
settlement with the debtor." Agency releases Timney from any and
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all claims it may have against Timney, that have arisen, or which
could arise out of the transactions referred to herein.
4.2 In accordance with the releases set forth above, each
party hereto agrees that it will not bring any action against the
other party arising out of the released claims as provided herein.
V EXECUTION OF DOCUMENTS
5.2 The parties hereto agree that each of them will execute
any and all further documents which are necessary to effectuate the
agreement set forth herein and/or have their attorneys execute such
documents.
VI AGREEMENT RE: JOINT PRESS RELEASE
6.1 The parties herein agree that no statements will be made
by either party to the press concerning this Settlement Agreement
and Release which have not been approved by the other party. A
joint press release will be prepared by the parties or their
attorneys explaining the agreement between Agency and Timney,
except that no information concerning the monetary consideration
paid by Agency will be given to any member of the press, unless the
information is obtained in public documents and/or meetings.
VII AGREEMENT RE: LIOUOR LICENSE
7.1 Timney owns a liquor license which is an on sale general
license which is applicable to the above premises. Agency may wish
to purchase said liquor license at any time within the next year.
Therefore, if Timney has not obtained permission from the Alcoholic
Beverage Commission to move said liquor license to a new location
within one year from the date this agreement was entered into, then
Agency may purchase said liquor license on its own account, or for
its designee for a consideration which equals the fair market value
at the time of purchase as determined by a competent broker
qualified to make such determination which has been agreed to by
both parties. Timney will give Agency the first right to purchase
said license, before selling it to anyone else.
VIZI AGREEMENT RE: ENCUMBRANCES
8.1 Other than as expressly set forth herein, Timney is not
aware of any liens, judgments, or other encumbrances affecting her
right to possession of the premises, or against the property being
acquired by Agency that were created and/or suffered by her.
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IX REMOVAL OF PERSONAL PROPERTY AND FIXTURES
9.1 If Gamette does not allow Timney to enter the premises
prior to the close of Escrow, Agency will allow Timney to enter the
premises after close of escrow for the purpose of removing all
personal property which belongs to Timney therein. With respect to
fixtures that are permanently affixed to the property said fixtures
will remain on the property unless by separate agreement between
Agency and Timney, Agency allows Timney to remove them. All
removal of personal property and/or fixtures will be at Timney's
expense.
X Agency has authorized Steven Julian to sign this Agreement on
behalf of Agency and Agency is bound by the apparent authority
which Julian claims to have to bind Aaencv.
WHEREFORE, the parties hereto agree to the above terms and
conditions.
Dated: SAN JUAN CAPISTRANO
REDEVELOPMENT AGENC
By •
Dated: By:
Se r ary
Dated:--5'd�.�_/
Donna Timney
Approved as to form and content:
Dated: STRADLING, YOCCA, CARLSON & RAUTHY
By: �9
Tom Clark, Attor y for Agency
Dated: 5-A110 HICKEY & NEULAND
A Professional Law Corporation
By: -! """"Y
Tracy H. E tinghoff, Attorney
for Donna Timney
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SEPTEMBER 18, 1990
REGULAR MEETING OF THE SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY
BOARD OF DIRECTORS
The Regular Meeting of the Board of Directors of the San Juan Capistrano Community
Redevelopmens,,Agency was called to order by Chairman Friess at 7:17 p.m., in the City
Council Chamber.
ROLL CALL 'PRESENT: Kenneth E. Friess, Ch rman
Gary L. Hausdorfer, :ce Chairman
Anthony L. Bland, D'rector
Phillip R. Schwar
ABSEN • Buct ,Director
Lawrence F. heim, Director
STAFF PRESENT: Stephen B. Tian, Exe
Director; Jeffrey Parker, Actin Agency
John R. Shaw, City Attorney; G rge
Wellington, Interim Director of Bui Ing
Director of Public Lands and Fac: 'tie
Community Services; Cheryl Johnson, Cit 1
utiv Director; Thomas G. Merrell, Deputy
S etary; David Bentz, Finance Officer;
:ar orough, Assistant City Manager; Ray
i d Engineering Services; Ronald Sievers,
Thomas L. Baker, Interim Director of
lerk.
MINUTES
Regular Meeting of September 4, 1990:
It was moved by Director Schwartze seconded b Director Friess, that the Minutes of
the Regular Meeting of September 4, 1990, be a Wroved as submitted. The motion
carried by the following vote:
AYES: Directors S hwartze, Hausdorfer,
Bland, an Chairman Friess
NOES: None
ABSENT: DireQfor Buchheim
BOARD ACTIONS
2.
APPROVAL OF_V
It was moved/' by Director Schwartze, seconded by Director usdorfer, and
unanimously carried to approve the List of Demands dated September , 1990, in the
total amountrof $335,415.47.
OF CONTRACT -
LPING SERVICES AT OLI
Written Communications:
Repory dated September 18, 1990, from the Assistant to the City Manager,
reco mending that BotaCo, Inc., be retained for the maintenance of the exterior
buildings and landscaping at the Old Capistrano High School site.
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9/18/90
3.
Approval of Contract:
It was moved by Director Schwartze, seconded by Director Hausdorfer and
unanimously carried that the contract between the Agency and BotaCo, Inc., be
approved in the amount of $20,475 for the period ending June 30, 1991.
Written Communications:
Report dated September 18, 1990, from the Community Development Manager,
recommending that the Agency enter into a new contract with Roberta Greenwood
and Associates to continue as the Agency's Consulting Archaeologist.
Approval of Contract:
It was moved by Director Hausdorfer, seconded by Director Schwartze and
unanimously carried that the one-year contract between the Agency and Roberta
Greenwood and Associates for the performance of Consulting Archaeologist services
be approved in an amount no to exceed $35,000. The Executive Director was
authorized to execute the agreement on behalf of the Agency.
CLOSED SESSION
The Board recessed at 7:19 p.m., to reconvene the City Council meeting. The Board
convened in a Closed Session at 7:46 p.m., for discussion of legal matters, the Agency
Secretary being excused therefrom, and reconvened at 8:10 p.m.
BOARD ACTIONS
It was moved by Director Hausdorfer, seconded by Director Bland and unanimously
carried to approve the Settlement Agreement relative to purchase of the San Juan
Saloon Lease (Garnett) and to authorize the Executive Director to execute the
Agreement.
ADJOURNMENT
There being no further business before the Board, the meeting was adjourned at 8:10
p.m., to the next regular meeting date of Tuesday, October 2, 1990, at 7:00 p.m., in the
City Council Chamber.
ATTEST:
KENNETH E. FRIESS, CHAIRMAN
Respectfully submitted,
JEFFREY PARKER, ACTING AGENCY SECRETARY
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9/18/90
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JULY 3, 1990
REGULAR MEETING OF THE SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY
BOARD OF DIRECTORS
The Regular Meeting of the Board of Directors of the City of San
Juan Capistrano Redevelopment Agency was called to order by
Chairman Friess at 7:12 p.m. in the City Council Chamber.
ROLL CALL: PRESENT: Kenneth E. Friess, Chairman
Gary L. Hausdorfer, Vice Chairman
Anthony L. Bland, Director
Lawrence P. Buchheim, Director
Phillip R. Schwartze, Director
ABSENT: None
STAFF PRESENT: Stephen B. Julian, Executive Director; Thomas G.
Merrell, Deputy Director; George Scarborough, Assistant City
Manager; John R. Shaw, City Attorney; Thomas L. Baker, Director
of Community Services; Nancy Bernardi, Recording Secretary.
MINUTES
The Minutes for the regular meeting of June 19, 1990, and the
adjourned regular meeting of June 26, 1990, were rescheduled for
approval for the meeting of July 17, 1990.
BOARD ACTIONS
APPROVAL OF WARRANTS (300.30)
It was moved by Director Hausdorfer, seconded by Director
Schwartze, and unanimously carried to approve the Lists of
Demands dated June 14 and June 28, 1990, in the total amounts
of $407,689.49 and $1,314,446.05, respectively.
APPROVAL OF RELOCATION AS§JZ2NHF4 AGREEMENT -
OPERA OR DONNA TIMNE 600.40
Written Communication:
Report dated July 3, 1990, from the Executive Director,
recommending the approval of a full settlement in the amount
of $100,000 for Mrs. Donna Timney in lieu of relocation, loss
of business, or other claims regarding the San Juan Saloon
property.
Approval of Agreement:
It was moved by Director Hausdorfer, seconded by Director
Buchheim, and unanimously carried that the full assistance
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7/3/90
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agreement for Mrs. Donna Timney in the amount of $100,000 be
approved, releasing the Agency and City from any loss of
goodwill (business), moving expenses, and/or any other claims
she may have had a right to seek under existing statutes.
3. DENIAL OF INDEMNITY - JOHN TYSON (ERIC BLACKMAN CASE) (170.10)
The claim for indemnity received by the City on June 11, 1990,
from Barbara Toy of Himes, McDonough & Strickland, on behalf
of John Tyson, for an undetermined amount for injuries
sustained by Eric Blackman, was denied, as set forth in the
report dated July 3, 1990, from the Assistant to the City
Manager.
AD HOC COMMITTEE - HISTORIC TOWN CENTER (400.20)
Upon the recommendation of Chairman Friess, it was the
consensus of the Board that the Ad Hoc Committee to formulate
a plan for the Historic Town Center be comprised of eight
members, as follows:
(1) Four members representing preservation interests (e.g.
Indian Council, Friends of Historic San Juan, docents,
San Juan Historical Society, and the Cultural Heritage
Commission); and
(2) Four members representing business property interests
(e.g. Stroscher and Birtcher organizations, plus two
business representatives).
Mr. Friess was appointed to serve as moderator for the
Committee, with a report to be provided to the Agency at the
meeting of August 7, 1990.
There being no further business before the Board, the meeting was
adjourned at 7:15 p.m. to the next regular meeting date of
Tuesday, July 17, 1990, at 7:00 p.m. in the City Council Chamber.
Respectfully s/,u/bmitted
ATTEST
E. FRIESS
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7/3/90
AGENDA ITEM July 3, 1990
TO: Chairman and Members of the Agency Board of Directors
FROM: Stephen B. Julian, Executive Director
SUBJECT: Relocation Assistance Agreement - San Juan Saloon
Operator (Donna Timney)
SITUATION
A. Summary and Recommendation - The Redevelopment Agency is in
the process of concluding the escrow for the purchase of the
possessory interest in the San Juan Saloon. As part of the
purchase, the operator of the facility was relocated. It is
recommended that the Redevelopment Agency approve a full
settlement in the amount of $100,000.00 for Mrs. Donna Timney
in lieu of relocation, loss of business or other claims she
may choose to file against the Agency.
B. Background - Under the terms of the purchase, the property was
to be transferred to the Agency free and clear of any liens,
encumbrances, and tenants. Mrs. Donna Timney was the last
operator of the San Juan Saloon and agreed to vacate the
property and release the Agency and City from any loss of
goodwill (business), moving expenses, and/or any other claims
she may have had a right to seek under existing statutes.
The recommended settlement is considered a full settlement and
will close the assistance agreement with Mrs. Timney. Staff
has worked with Mrs. Timney and has her signature on the
appropriate release and indemnification. To assist her in her
relocation efforts and in recognition of her indemnification,
Staff believes the above compensation is appropriate, and
recommends the approval of the full settlement amount.
PUBLIC NOTIFICATION
None.
OTHER BOARDS/COMMISSIONS
Not applicable.
FINANCIAL CONSIDERATION
The funds for the settlement expense will be derived from the
Agency's 1989-90 Budget.
FOR CRY COUNCIL AGENT!^'
Agenda Item - 2 - July 3, 1990
ALTERNATE ACTIONS
1. Approve the full assistance settlement agreement for
Mrs. Timney in the amount of $100,000.00.
2. Direct staff to enter into further negotiations with
Mrs. Timney.
RECOMMENDATION
By motion, approve the full assistance settlement agreement for
Mrs. Timney in the amount of $100,000.00.
Respectfully itted,
Stephen B. lian, Executive Director
Community Redevelopment Agency
SBJ:CW:jmk
HiLKEY tiTEL L.hNL
LAy�:NA h': _i=1LlFf," :(iA Sa...
May 23, 1990
•
__E nJ •C
•sa .c.r
.nomas P. Claris, Jr.
stradling, Yucca, Ca-ls�n & Rauth
]6C Newport Center Drive
Suite 1600
P.O. Box 7680
tiewport Beach, Califorriia 92660-6641
Re: San Juan Saloon
Dear Mr. Clark:
rclosed, please ''in,i a Fully execute-? "'ic>d 7i. --Mess e.nd Indemnity
Agreement"-,;-ich :'.:-15 bee^. revised in a.�'.'. sir d a^: e 'vlith your
recommendations.
Tn my conversation «itl, you recently, you i^di_ ted that all of the
'Jther CC�"1J it lOn3 i' �he "t.Settli'.Ment Agrer_��.--n a.nci FP_'_ejse of
Certain Clains" have teen satisfied by Gcnna-iimi42f. I therefore
request that the Redevelopment Agency i -save 3 =:peck i.n the amount
of $100,Co0.0o made payable to Hickey S Neular.l and Ocnna Timney.
r, -ase can our offices upon the funds being L'.:^.e iiare'_y available
for delivery.
Very truly yours,
HICKEY i HEULAND
A Pro!essional Lav ,orporation
TRACYI H. E'.T:tivHJFF
THE:pc
Enclosure
rnn4 E E_c •+ ^C_rv�u
HiLKEY tiTEL L.hNL
LAy�:NA h': _i=1LlFf," :(iA Sa...
May 23, 1990
•
__E nJ •C
•sa .c.r
.nomas P. Claris, Jr.
stradling, Yucca, Ca-ls�n & Rauth
]6C Newport Center Drive
Suite 1600
P.O. Box 7680
tiewport Beach, Califorriia 92660-6641
Re: San Juan Saloon
Dear Mr. Clark:
rclosed, please ''in,i a Fully execute-? "'ic>d 7i. --Mess e.nd Indemnity
Agreement"-,;-ich :'.:-15 bee^. revised in a.�'.'. sir d a^: e 'vlith your
recommendations.
Tn my conversation «itl, you recently, you i^di_ ted that all of the
'Jther CC�"1J it lOn3 i' �he "t.Settli'.Ment Agrer_��.--n a.nci FP_'_ejse of
Certain Clains" have teen satisfied by Gcnna-iimi42f. I therefore
request that the Redevelopment Agency i -save 3 =:peck i.n the amount
of $100,Co0.0o made payable to Hickey S Neular.l and Ocnna Timney.
r, -ase can our offices upon the funds being L'.:^.e iiare'_y available
for delivery.
Very truly yours,
HICKEY i HEULAND
A Pro!essional Lav ,orporation
TRACYI H. E'.T:tivHJFF
THE:pc
Enclosure
•
�.eLn:LArc)az.,ess_t�•tt�__I_NGErir�:,-t �,�a`���Ex_r
I. PARTIES t v
_.' ^'he p:�-!']�•5 Hold old i,a C1Ti .tai i!'.5 •.. .�'iO i.:t� Y.3LP_C'��P,
arC:. C'V(R? T71 (:nde:(njtcrj 31::.� IRE ! .U7!! ra^iStran':
F:e'.ievolopicer.t AgLlrk; j "Agecc;,-`1 d1d tt:e _`.t} of San Juan Capistranc
('City") (Indemnitees).
I i . REQ_I_TALS
2.1 WherEas, tri e, ; n demni to ona L"e A—f—r:i j 'nave Fre': _r, ,sly
ente:cd into a sett;e:nen.t Agreement a-:-3 Re;==se o_' Certain Claims
in !,!ay ?, 1990• resat Ing to reloc-at io:i being raid to Donna
Pimney, and
2.2 Whereas, to ::ns Sct=1E.^:'. Cit-•.greeinent �Srid Rele3s'e
Jf certain CL?::'iu, Tinr'.e-y t.^_ j,r Jv Ldp-_ an Inde-mr.:tV
greement. to the RedevFlrpeient Agency, tird i-n^a Ti:7ne7 is willinc;
tc provide sup}; agreement, then
2.3 Dorna Timney as the Inde':m':ttcr n3er this Agreement
ha«:by more.. t.; the following terns a*:i na:tau^s:
III HOLD EhRriLE88 AND INDE til _TY i�
A. VISTs ty
i.1 Indemnitor hereby agrees to sr.r?n :r•iennify, and hcl::
Indemnitees harmless troy any liens, eno hrancea, or Clai;r.s b°;
either Patricia 3ros , or Donate Al'c•erc�;cr sny :Ahei persc•n Dr
entity c a:.minq throogh I1d Pmn itvrj to t!,e gr: -.:rd lease bEiriz
acq.alred by ke?e'✓elo*pnent Agen-:y from D_.' .:las ',;3rette r: anv dai'''s
to relocation benefits, or eminent domain prc-ec?s which .Arise out
>t tha acq.;isit.on r_y-
Agency of tha 4rr..,.:nj ,?a :e
,r. .3rd tI- Lot S of
rr, . t .34 frori De.,g'as.
�'ametr,-R ;,r
whic..
agreement and Release
of Certain
Claims.
: ,2 Tr, M,e event any lien, enc"47iSr-Angie, ,,:ti mQnr_ i
discovereed vhi-:'L 3ttachcs •,_: the gro,:nd ��•-'+'� C'�l�lj a�.'il:;l red U�%
e=.y`enc y, Ayericy aall immediAt(i j, for -ward a df -;[nand; iii Wr:t:ng, that
I1:^.':ef bsfy s,lch 1:en, P.nC11R;Jrdr'�,:2, Or �l:dg^ent. After
f8�=e:Ving 'w'rlttcn •des,an(3, ..f^n"y Will Ler-, ,::a'yS Satisfy
uL:n lien ., )y,��C.. �: Y+�.: ind yr defern9 i::dermn?tce.S and
4ficcrS, .igLr:ts, and 61nployecS an:,I hill: tt:L�m, harms -,fit--_ from
th, clain:a asserted.
Dated:
4.nna Ti,.nef, Tndernnitgr