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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. 1 0*04 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 2 0 0 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. 0 0 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 0 0 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. -1- 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 -2- 9/18/90 v 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 -1- 7/3/90 • a 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 -2- 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