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HomeMy WebLinkAboutSettlement Agreement - CDC AARB, Beauchamp, Henschel, Bennett - 2007SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS ("Agreement") is entered into by The Community Development Commission of the City of National City (hereinafter referred to as the "CDC"), AARB, LLC, a California limited liability company, Beauchamp Family Trust UDT 8/16/1982 as amended under Trust Amendment No. One Dated 4/14/1986 ("Beauchamp Family Trust") (hereinafter AARB, LLC and Beauchamp Family Trust are collectively referenced as "Developer"), the Henschel Trust, the Estate of Arthur O. Henschel, Jr., San Diego Superior Court Case No. P189861 ("Henschel Estate"), James L. Henschel, Arthur O. Henschel, III, and Charlene Bennett, all hereinafter sometimes referred to collectively as the Parties. I. PURPOSE This Agreement is made for the purpose of settling: (i) certain claims filed in the Henschel Estate by Developer and CDC for Environmental Costs at the Properties; (ii) an Eminent Domain Action filed by CDC to condemn the Property owned by the Henschel Trust; (iii) claims made for Environmental Costs at the Property under the Polanco Redevelopment Act by CDC naming the Henschel Trust and the Named Beneficiaries, which claims were joined in the Eminent Domain Action. Undcr this Agreement the Property and other consideration is transferred to the Developer in satisfaction of the environmental claims of CDC and developer, the Named Beneficiaries disclaim any interest in the Property, and CDC and the Developer release the Named Beneficiaries and the Henschel Trust and Henschel Estate from claims and make certain payments. II. DEFINITIONS 1. "Agreement" means this Settlement Agreement and Mutual Release of Claims. 2. "Claims" means any and all claims that the CDC or Developer may have against the Henschel Trust, .the Henschel Estate, or the Named Beneficiaries for the purpose of recovering environmental investigation and remediation costs associated with the Contamination (as defined below) at the Properties (as defined below). 3. "Contamination" means "hazardous substances" as that term is defined in the Polanco Redevelopment Act (Health & Safety Code § 33459(c)) either in or on soil or groundwater at or, if such "hazardous substances" arc found to be from the Properties, in the vicinity of the Properties (as defined below). 4. "Environmental Costs" means investigation and remediation costs, including, but not limited to, costs to investigate, remove or remediate hazardous substances in the soil and groundwater at or from the Properties, analytical costs, reporting costs, and oversight costs from the County of San Diego Department of Environmental Health ("DEH") or other appropriate 08-24-200? FINAL SAMRC regulatory agency incurred by the CDC or Developer due to thc Contamination at the Properties. Environmental Costs include, but is not limited to, all costs recoverable under the Polanco Redevelopment Act. 5. "Past Environmental Costs" means Environmental Costs incurred by the CDC or the Developer in the period ending on May 15, 2007, as a result of the Contamination. 6. "Future Environmental Costs" means Environmental Costs incurred by the CDC or the Developer after May 15, 2007 due to the Contamination. 7. "Parties" means the CDC, the Henschel Trust, the Henschel Estate, the Developer, and the Named Beneficiaries (as defined below). 8. "Named Beneficiaries" are the three named beneficiaries of the Henschel Trust, to wit James Henschel, Arthur O. Henschel, III, and Charlene Bennett. 9. "Property" means 1031 Roosevelt Avenue, National City, California, Assessor Parcel Number 555-113-04 which Property is the subject of the Eminent Domain Action by CDC and which Property will be one parcel of the site of the Park Village Project to be built by the Developer. The Property has historically been the site of a dry cleaning business. 10. "Former Drycleaners" means 901 Roosevelt Avenue (also referred to historically as 32 W. 9th Street), National City, California, Assessor Parcel Number 555-084-01 which was the location of a dry cleaning business known as "The Barn" operated from approximately 1966 to 1973 by Arthur O. Henschel, Jr. who did not own the real property. After closure of "The Barn", Developer purchased the site and transformed it to automotive uses. The Former Drycleaners is now the site of the Education Village project by CDC. 11. "Properties" refers collectively to the Property and the Former Drycleaners III. RECITALS 1. On December 1 , 2004 a Trust Transfer Deed was recorded as Doc. No. 2004- 1132902 by the County Recorder of San Diego County in which Arthur O. Henschel, Jr. transferred the Property to his revocable trust known as the Henschel Trust. On December 12, 2004 Arthur O. Henschel, Jr. dicd and the Henschel Trust became irrevocable. 2. On May 31, 2005, CDC issued a notice to the Henschel Trust, as title holder to the Property, pursuant to California Health & Safety Code section 33459, et seq. (the "Polanco Redevelopment Act"), requesting that the Henschel Trust submit a remedial action plan for hazardous substances released on, in or under the Property within sixty (60) days of receipt of the notice. The Henschel Trust did not submit a proposed remedial action plan within the 60-day notice period. On July 29, 2005, representatives of the Henschel Trust sent a letter expressing an interest in cooperating with CDC to address the environmental concerns at the Property. 3. After motions by CDC, the Estate of Arthur O. Henschel, Jr. (aka Arthur Otto Henschel, Jr.) Decedent, Case No. P 189861 in the Superior Court of San Diego County (herein 08-24-2007 FINAL SAMRC n "Henschel Estate") was opened and letters of administration issued December 5, 2005. Developer and CDC each filed claims in the Henschel Estate for Past Environmental Costs and Future Environmental Costs. 4. On February 3, 2006, CDC filed CDC of the City of National City v. Henschel Trust, et. al, Case No. GIC 860857, in the Superior Court of San Diego County (the "Eminent Domain Action") being an action in eminent domain to take the Property and making claims under the Polanco Redevelopment Act for Environmental Costs at the Property. The estimated amount for such Environmental Costs, according to the consultants for CDC, is in excess of $2,000,000. 5. For the Purposes set forth above, the Parties desire to compromise and settle all Claims relating to the matters addressed herein on the terms and conditions as set forth in this Agreement. IV. TERMS OF SETTLEMENT AND RELEASE IT IS HEREBY AGREED that: 1. CONSIDERATION The Parties each agree to settle their claims of every kind between and among all of them relating to the Past Environmental Costs, the Future Environmental Costs, the Eminent Domain Action, the Polanco Redevelopment Act claims, the Properties, and all issues arising therefrom, including all issues which were asserted or could have been asserted in the Eminent Domain Action or the Henschel Estate, and all such claims are hereby expressly and forever compromised, discharged, and terminated for all time, except any claims which may arise from or pursuant to: (i) the obligations undertaken pursuant to this Agreement or the Purchase Agreement provided for under this Agreement; or (ii) pursuant to paragraph 5(b) hereof. In consideration of this settlement and mutual releases of the respective claims and the mutual promises of the Parties herein set forth, the Parties agree to perform each of the terms hereinafter set forth and abide by the terms of this Agreement. 2. PROPERTY TRANSFER AND LEDGER CLEANUP ACCOUNT a. Transfer of Fcc Title to Real Property. In full and complete satisfaction of any and all Claims that Developer or CDC may have against the Ienschel Trust, and in settlement of the Eminent Domain Action, including the Polanco Redevelopment Act claims asserted therein, and in consideration of the releases set forth herein, the Henschel Trust agrees to transfer its interest in the Property to AARB, LLC pursuant to the terms and conditions of the Purchase Agreement between the Henschel Trust and AARB, LLC, the form of which is attached hereto as Exhibit "A". The signatories to Exhibit "A" agree to fully and faithfully perform all the requirements of such Purchase Agreement. The Parties understand and agree that if the Eminent Domain Action was fully litigated, the Henschel Trust would not likely receive an award for the Property because the estimated Environmental Costs exceed the appraised value of the Property in an uncontaminated condition, to wit $862,000 (the "Clean 06-24-2007 FINAL SAMRC _3- Value") and an offset would occur between the Clean Value and the estimated Environmental Costs. Notwithstanding this fact, it is of value to CDC and Developer to enter into this Agreement to conclude the litigation and limit the costs associated therewith. Upon execution of this Agreement and the Purchase Agreement by the Henschel Trust and AARB, LLC, CDC agrees to file a dismissal with prejudice of the Henschel Trust in the Eminent Domain Action . b. Ledger Cleanup Account. The Clean Value will be the initial entry in a Ledger Cleanup Account to be maintained by the Developer. The Developer of the project will undertake any necessary investigation and remediation required by the oversight agency, and will debit the 1,edgcr Cleanup Account for the following expenses as they are incurred: 1) a $100,000 debit for the payment for Past Environmental Costs incurred by Developer as detailed in section 2(c); 2) a $60,000 debit paid to the Named Beneficiaries and Trustee of the Henschel Trust as detailed in section 3; 3) a debit for all delinquent taxes owing on the Property paid by Developer through escrow; 4) debits for liens recorded against the Property by Union Bank of California and by the State of California Department of Industrial Relations in the amounts to be paid by the Developer to satisfy said liens at the time of payment of said amounts; and 5) a debit for payment for Future Environmental Costs as detailed in section 2(d). The CDC covenants that it will not approve any request of the Developer to assign, transfer or alienate either the development rights or the property subject to this Agreement without sufficient assurances that the Developer's obligations to the Henschel Trust, as stated in this Agreement, are met. c. Settlement for Past Environmental Costs . In return for the Release specified herein, Henschel Trust agrees that Developer can debit the Ledger Cleanup Account for payment of Past Environmental Costs incurred at the Properties by Developer in the amount of $100,000. James Beauchamp, on behalf of Developer, represents and warrants that Developer has incurred and made payment for Past Environmental Costs for the Properties in an amount equal to or greater than $100,000. d. Reimbursement for Future Environmental Costs. In return for the Release specified herein, Ienschel Trust agrees to the dedication of the Ledger Cleanup Account to reimburse Developer for all Future Environmental Costs incurred by Developer for the activities required to investigate and remediate the Contamination at the Properties that the lead or administering agency may approve. A summary of the expenditures made regarding these activities and charged to the Ledger Cleanup Account, and the resulting balance, will be provided to the I Ienschel Trust, or if no longer in existence its last Trustee, at least once per year. The Parties agree that the decision of the regulatory oversight agency will be final with regard to the scope of the work undertaken. e. Remainder Shown on the Ledger Cleanup Account. Though it is likely that the Environmental Costs will exceed the Ledger Cleanup Account, if any amount is shown as remaining on the Ledger Cleanup Account at the earlier of: (i) seven years from the date hereof; or (ii) the conclusion of all environmental work and payment of related Future Environmental Costs as a result of the Contamination at the Properties, then such remainder amount (including any accrued interest thereon) will be allocated and paid as follows: (i) the first $200,000 thereof will be divided such that one half of such sum will be paid by the Developer to the Henschel Trust and one half will be retained by the Developer; and (ii) any OB-24-2007 FINAL SAMRC - 4 - remainder amount in excess of $200,000 shall be paid to the Henschel Trust. If the Henschel Trust is no longer in existence, any sums for the Henschel Trust shall be paid, in trust for the Named Beneficiaries (or their designated heirs should a Named Beneficiary be then deceased), to its last Trustee. The "conclusion of all environmental work" will occur upon receiving satisfactory "closure" in the form of a "No Further Action" letter or other similar document from the appropriate environmental oversight agency. f. Interest on the Ledger Cleanup Account. The Ledger Cleanup Account shall bear interest from May 15, 2007 at the rate of five percent (5%) per annum, compounded monthly. 3. NAMED BENEFICIARIES DISCLAIMER For and in settlement of any claims asserted against them in the Eminent Domain Action, and in consideration of the releases set forth herein, the Named Beneficiaries agree to execute a Disclaimer of Interest, in the form attached as Exhibit B hereto, disclaiming any interest in the Property. Within fourteen (14) days after receipt of a fully executed copy of such Disclaimer (s) from the Named Beneficiaries, CDC shall: (i) pay the sum of $10,000 directly to each such Named Beneficiary; (ii) pay to the Trustee of the Henschel Trust the sum of $30,000.00 as and for payment of the Trust's administrative expenses in conjunction with the matters settled herein; and (iii) file a Request for Dismissal With Prejudice of each such Named Beneficiary in the Eminent Domain Action. 4. CLAIMS IN HENSCHEL ESTATE In as much as there are no assets in the Henschel Estate, the only claims filed therein were and are those claims for Past Environmental Costs and Future Environmental Costs by the Developer and CDC, and the Henschel Estate was only established to preserve such claims for litigation purposes, within ten (10) days of their execution of this Agreement, CDC and Developer agree to withdraw their respective claims in the Henschel Estate by filing a "Withdrawal of Creditors Claim" therein. As soon as possible thereafter, the attorney for the executor shall file a petition with the Court to terminate the Henschel Estate and discharge the executor. 5. RELEASES OF PARTIES a. Releases. Developer and CDC hereto, on behalf of themselves and, to the maximum extent allowed by law, on behalf of their current and former agents, assigns, successors, shareholders, partners, employees, officers, directors, predecessors, parent companies, subsidiaries, affiliates, beneficiaries, affiliates, and attorneys, hereby fully release and discharge the Henschel Trust, its current and former agents, trustees, assigns, successors, shareholders, partners, employees, officers, directors, parent corporations, subsidiaries, affiliates, predecessors, trusts, beneficiaries, including the Named Beneficiaries, and attorneys for any such released parties, from any and all Claims for Environmental Costs (including both Past Environmental Costs and Future Environmental Costs) or for other claims or costs related to or arising from the Contamination at the Properties. 08-24-2007 FINAL SAMRC -5- b. Limitations on Releases. The releases set forth in paragraph (a) above do not include or apply to any rights of any of the Parties to enforce or interpret this Agreement or an Exhibit hereto. In addition, nothing set forth in this Agreement shall in any way transfer, assign, relinquish, exonerate, compromise, abrogate, waive or release any or all of the Claims which any of the Parties may have against any person or entity not a party to this Agreement, except to the extent such person or entity has been released in his, her or its capacity as a current or former agent, trustee, assign, successor, partner, employee, subsidiary, affiliate, predecessor, related entity or attorney for one of the Parties to this Agreement. c. No Assignment. Each of the Parties represents and warrants to each other that no portion of any Claim, demand, cause of action, or other matter released herein has been or will be directly assigned or transferred to any other person or entity not a party to this Agreement, other than sucu..ssors which agree to be bound to the terms of this Agreement. Each of the Parties acknowledges that this representation is material to this Agreement, and that each is relying upon said representation in entering into this Agreement. 6. GENERAL PROVISIONS a. No Admissions. The Parties expressly acknowledge that execution of this Agreement, consent to this settlement or the payment of any monies in accordance with this Agreement shall not be deemed to be an admission of fault or liability on the part of any of the Parties. b. Successors and Assigns. All of the terms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties hereto and their respective legal representatives, successors, successors -in -title, executors and assigns. c. Authorization to Enter Into Agreement. Each person executing this Agreement represents and warrants that he or she has been duly authorized to execute this Agreement on behalf of the Party and has full and complete authority to do so. Each of the Parties expressly waives any defense to this Agreement based on any lack of authority to enter into and be bound by the terms of this Agreement. d. Agreement Not Admissible. This Agreement shall be deemed to fall within the broadest protections afforded compromises and offers to compromise by California Evidence Code section 1152, and any related provisions. e. Governing Law. This Agreement shall be interpreted, construed, governed and enforced under and pursuant to the laws of the State of California. Any action to enforce or interpret this Agreement shall he filed and maintained within the County of San Diego, State of California. f. Advice of Counsel. Each of the Parties has been or has had the opportunity to be represented in the negotiation and preparation of this Agreement by independent legal counsel of its own choosing. Each of the Parties further represents that he or she has read this Agreement and that he or she is fully aware of its content and legal effect and enters into the Agreement voluntarily, freely and without coercion. Each of the Parties agrees 08-24-2(107 PTNA1. SAMRC -6- and represents that, except as set forth in this Agreement, no promise, inducement, understanding, representation, warranty or agreement has been made or relied upon in connection with the execution of this Agreement. Each of the Parties assumes the risk of any purported mistake, misunderstanding, misrepresentation or nondisclosure and shall have no alleged right or claim to set aside or rescind this Agreement based thereon. g. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to resolution of the Claims covered herein. h. Waiver and Amendment. No breach of any provision hereof can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This Agreement may be amended only in a writing executed by all of the affected Parties. i. No Presumption Regarding Construction. The Parties and their attorneys have cooperated in drafting and preparing this Agreement. Consequently, the presumption that ambiguities are resolved against the drafting Party shall be inapplicable, and any such ambiguities shall not be construed against such drafting Party. j. Severability. If any term or provision of this Agreement is found by a court to be void and unenforceable, that finding shall in no way affect any other provision of this Agreement or any document to be executed concurrently herewith or the validity or enforceability of the Agreement as a whole, k. Attorneys' Fees and Costs. The Parties shall bear their own attorneys' fees, costs and all other expenses (with the exception of Environmental Costs) incurred to date except as set forth in Exhibit A hereto. In the event it becomes necessary for any Party to obtain the services of an attorney to bring a suit, claim, action or proceeding to enforce or interpret the provisions of this Agreement against any Party who has breached any obligation set forth herein, the prevailing Party shall be entitled to recover its reasonable attorneys fees, costs of suit and related legal expenses. 1. Parties in Interest/No Third Party Beneficiaries. This Agreement has been made and is made solely for the benefit of the Parties to this Agreement, and their respective successors and assigns, and no other person or entity shall acquire or have any rights under or by virtue of this Agreement. In addition, nothing in this Agreement is intended to release or discharge the obligation or liability of any third persons to any of the Parties to this Agreement. m. Notices. All notices required or permitted under this Agreement shall be in writing (either by mail or facsimile), and addressed to the Parties for whom it is intended at the address set forth herein or such other address designated from time to time in writing to all other Parties: O8-24-2007 FINAL SAMkC -7- To the Agency: The Community Development Commission of the City of National City Attn: Ms. Patricia Beard Redevelopment Manager 1243 National City Blvd. National City, CA 91950 With a copy to: Opper & Varco LLP Richard Opper, Esq. 225 Broadway, 191h Floor San Diego, CA 92101 Telephone: (619) 231-5858 Facsimile: (619) 231-5853 To the Developer: AARB,LLC James Beauchamp, Manager Alton B. Beauchamp, Trustee Beauchamp Family Trust 327 West 1 lth Street National City, CA 91950 To Henschel Trust: The Henschel Trust c/o Antonia E. Martin, Esq., Trustee Law Offices of Antonia E. Martin 401 West "A" Street, Suite 1775 San Diego, CA 92101-7901 Telephone: (619) 231-7575 Facsimile: (619) 231-7593 To Henschel Estate: Estate of Arthur O. Henschel c/o Antonia E. Martin, Esq., Executor Law Offices of Antonia E. Martin 401 West "A" Street, Suite 1775 San Diego, CA 92101-7901 Telephone: (619) 231-7575 Facsimile: (619) 231-7593 08-24-2007 RNA!. SAMRC -8- To Named Beneficiaries: James I,. Henschel 432 Madison Avenue Boonton, NJ 07005 Arthur 0, Henschel, III 9100 Single Oak Dr., Space 30 Lakeside, CA Charlene Bennett 1802 Plaza Drive, Apt 15 Elwood, IN 46036 Any notice so delivered or served shall be deemed made upon receipt by the Parties served or to whom notice is so given. Notice may also be made by electronic mail transmission or by facsimile transmission and deemed made as of the date and time of that transmission, if said notice is followed up by duplicate written notice sent by certified United States mail, retum receipt requested, postage prepaid, prior to the close of the next business day. n. Counterparts. This Agreement may be executed in any number of separate counterparts, each of which shall be deemed an original but all of which when taken together shall constitute one and the same instrument. o. Further Documents. The Parties hereto shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement. OS-24-2007 FINAL SAMRC (Remainder of page left intentionally blank] -9- IN WITNESS WHEREOF, the Parties enter into this Agreement which shall become effective and fully enforceable in all respects as of the latest date that this Agreement is fully executed by the Parties. Dated: C! /fiJV7 Dated: THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF..NATIONAL CITY By: Name: pher Zapata Title: Exc ive Director THE HENSCHEL TRUST By: Name: Antonia E. Martin, Trustee The Estate of Arthur O. Henschel, Jr. Deceased Dated: By: Dated: Dated: Dated: Dated: 08-24-2007 FINAL SAMRC Antonia E. Martin, Esq. Executor James L. Henschel Arthur O. Hesnchel, III Charlene Bennett AARB, LLC -10- 1 ames Beauchamp, Manager IN WITNESS WHEREOF', the Parties enter into this Agreement which shall become effective and fully entbrceable in all respects as of the latest date that this Agreement is fully executed by the Parties. Dated: THE COMMUNITY DEVELOPMENT COMMISSION OF'1'HE CITY OF NATIONAI, CITY By: Name: Christopher Zapata Title: Executive Director TIIE HENSCHEI., .I'RUST Dated: of 0 / By: _ Name: Dated: I )ated: Dated: Dated: l'4/.2,067 Antonia E. Martin, Trustee The Estate of Arthur O. Henschel, Jr. Deceased By: Antonia E. Martin, Esq. Executor James I,. Henschel Arthur O. IIesnchel, Iil Charlene Bennett AARB, LLC Dated: By: 08-24-2007 FINAL SAMRC James Beauchamp, Manager - 10- IN WITNESS WHEREOF, the Parties enter into this Agreement which shall become effective and fully cnlorceablc in all respects as of the latest date that this Agreement is fully executed by the Parties. Dated: Dated: Dated: Dated: 9 '9 • o'� Dated: Dated: TIIE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Name: Title: Christopher Zapata Executive Director THE HENSCIIEL TRUST By: Name: Antonia E. Martin, Trustee The Estate of Arthur O. IIenschel, Jr. Deceased By: Antonia E. Martin, Esq. Executor hel Arthur O. Hesnchel, III Charlene Bennett AARB, LLC Dated: Bv: OR-24-2007 FINAL SAMRC James Beauchamp, Manager - 10- IN WITNESS WHEREOF, the Parties enter into this Agreement which shall become effective and fully enforceable in all respects as of the latest date that this Agreement is fully executed by the Parties. Dated: 1)ated: THE COMMUNITY DEVELOPMENT COMMISSION OF TIHE CITY OF NATIONAL CITY By: Name: Christopher Zapata Title: Executive Director TIIE IIENSCIIEL TRUST By: Name: Antonia E. Martin, Trustee The Estate of Arthur O. I Ienschel, Jr. I )eccased Dated: By: Dated: Dated: 49-0 7-0 7 1)atcd: Antonia E. Martin, Esq. Executor James L. IIenschel Arthur 0. Hesnchel, III Charlene Bennett AARB, LLC Dated: I3y: 08-24-2007 FINAI. SAMRC James Beauchamp, Manager - 10 - 09/07/07 FRI 11:35 FAX 619 238 1981 MULVANEY.KAHAN.& BARRY Ij 003 IN WITNESS WHEREOF, the Parties enter into this Agreement which shall become effective and fully enforceable in all respects as of the latest date that this Agreementfully executed by the Parties. THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Dated: _ By: Name: Christopher Zapata 'Title: Executive Director Dated: Dated: Dated: Dated: q Dated: Dated: O8-24.2007 FINAL SAMRC THE HENSCHEL TRUST By: Name: Antonia E. Martin, Trustee The Estate of Arthur O. Henschel, Jr. Deceased By: Antonia E. Martin, Esq. Executor James L. Henschel Arthur O. Hennchel, llI Charlene Bennett AARB, LLC By: James Beauchamp, Manager Dated: Richard G. Opper Opper & Varco LLP Special Environmental Counsel to the Community Development Commission of the City of National City George Eiser City Attorney City of National City BEAUCHAMP FAMILY TRUST By: Alton B. Beauchamp, Trustee Robert G. Russell, Jr. Procopio, Cory, Hargreaves & Savitch LLP Environmental Counsel to the Henschel Trust Sandra Brower, Esq. Wertz McDade Wallace Moot & Brower Attorney for AARB, LLC, and Alton B. Beauchamp as Trustee of the Beauchamp Family Trust 08-24-2007 FINAL SAMRC - 11 - BEAUCIIAMP FAMILY TRUST Dated: By: Alton B. Beauchamp, Trustee APPROVED AS TO FORM: Richard G. Opper Opper & Varco LLP Special Environmental Counsel to the Community Development Commission of the City of National City George Eiscr City Attg4ney City of Robert G. Russell, Jr. Procopio, Cory, Hargreavesf& Savitch LLP Environmental Counsel to the Henschel Trust Sandra Brower, Esq. Wertz McDade Wallace Moot & Brower Attorney for AARB, LLC, and Alton B. Beauchamp as Trustee of the Beauchamp Family Trust 08-24-2007 FINAL SAMRC - 11 - BEAUCHAMP FAMILY TRUST Dated: By: APPROVED AS TO FORM: Richard G. Opper Opper & Varco LLP Special Environmental Counsel to the Community Development Commission of the City of National City George Eiser City Attorney City of National City Robert G. Russell, Jr. Procopio. Cory, Hargreaves & Savitch LLP Environmental Counsel to the I-Ienschel Trust i ra Brower, E Wertz McDac 'allace Moot & Brower Attorney AARB, LLC, and Alton . Beauchamp as Trustee of the Beauchamp Family Trust a8.24-2U07 FINAL SAMRC -11- Alton B. Beauchamp, Trustee Dated: APPROVED AS TO FORM: Richard G. Opper Opper & Varco LLP Special Environmental Counsel to the Community Development Commission of the City of National City George Eiser City Attorney City of National City BEAUCHAMP FAMILY TRUST By: Alton B. Beauchamp, Trustee Robert G. Russell, Jr. Procopio, Cory, Hargreaves & Savitch LLP Environmental Counsel to the Henschel Trust Sandra Brower, Esq. Wertz McDade Wallace Moot & Brower Attorney for AARB, LLC, and Alton B. Beauchamp as Trustee of the Beauchamp Family Trust OR-24-2007 FINAL SAMRC - 1 I - RESOLUTION NO. 2007 — 224 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("CDC") AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A SETTLEMENT AND RELEASE OF CLAIMS AGREEMENT WITH AARB LLC, BEAUCHAMP FAMILY TRUST, THE HENSCHEL TRUST, THE ESTATE OF ARTHUR 0 HENSCHEL JR., JAMES L HENSCHEL, ARTHUR 0 HENSCHEL III, AND CHARLENE BENNETT RELATED TO ENVIRONMENTAL COSTS, EMINENT DOMAIN ACTION BY THE CDC, AND CLAIMS FOR ENVIRONMENTAL COSTS UNDER THE POLANCO REDEVELOPMENT ACT FOR THE PARK VILLAGE PROJECT WHEREAS, on February 22, 2005, the Community Development Commission of the City of National City ("CDC") entered into an Owner Participation Agreement ("OPA") with the Beauchamp Family Trust for a project called Park Village ("Project"), located within the block bounded by National City Boulevard, Plaza Boulevard, Roosevelt Avenue, and 11 u, Street; and WHEREAS, the Henschel Trust owns property within the Project which has been impacted by hazardous substances from historical land uses including a dry cleaning plant; and WHEREAS, on December 13, 2005, the CDC adopted Resolution No. 2005-113 authorizing the transfer of the OPA to AARB, LLC; and WHEREAS, on February 3, 2006, the CDC filed Case No. GIC 860857 in the Superior Court of San Diego County being an action in eminent domain to take the Property and making claims under the Polanco Redevelopment Act for Environmental Costs at the Property; and WHEREAS, CDC consultants estimated the value of the Environmental Costs at more than $2 million; and WHEREAS, the Parties now desire to settle all claims and matters between them including Past Environmental Costs, Future Environmental Costs, the Eminent Domain Action, and the Polanco Act Redevelopment Claims. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City authorizes the Executive Director to execute a Settlement Agreement and Mutual Release of Claims with AARB, LLC., the Beauchamp Family Trust; the Henschel Trust; the estate of Arthur O. Henschel, Jr., James L. Henschel, Arthur O. Henschel HI, and Charlene Bennett. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 18th day of ATTES -suOIMP Ron Morrison, Chairman APPROVED AS TO FORM: Brad Raulstonetary George H. Liser, III Legal Counsel Passed and adopted by the Community Development Commission of the City of National City, Califomia, on September 18, 2007, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Parra, Ungab. Nays: None. Absent: Commissioner Zarate. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, ommunity Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2007-224 of the Community Development Commission of the City of National City, Califomia, passed and adopted on September 18, 2007. Secretary, Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE September 18, 2007 AGENDA ITEM NO. 12 (-ITEM TITLE A RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR TO\ EXECUTE A SETTLEMENT AND RELEASE OF CLAIMS AGREEMENT WITH AARB LLC, BEAUCHAMP FAMILY TRUST, THE HENSCHEL TRUST, THE ESTATE OF ARTHUR 0 HENSCHEL JR., JAMES L HENSCHEL, ARTHUR 0 HENSCHEL 111, AND CHARLENE BENNETT RELATED TO ENVIRONMENTAL COSTS, EMINENT DOMAIN ACTION BY THE CDC AND CLAIMS FOR ENVIRONMENTAL COSTS UNDER THE POLANCO REDEVELOPMENT ACT FOR THE PARK VILLAGE PROJECT. PREPARED BY DEPARTMENT Patricia Beard Redevelopment Division Redevelopment Manager, 4255 EXPLANATION The Henschel property is located at 1031 Roosevelt Avenue within the footprint of the Park Village project. This Agreement settles acquisition of the Henschel property for the project as well as environmental claims and costs against the Henschel Trust. The Agreement allows transfer of title and environmental responsibility for the property to AARB, LLC, developers of Park Village. Environmental Review Not applicable. Strategic Plan Goals 5A: Implement Downtown Specific Plan through establishing Market Supported Values. Financial Statement There is no cost to the CDC for this Agreement. AARB is required to reimburse all legal and environmental costs per terms of its Owner Participation Agreement, Account No 900912 STAFF RECOMMENDATION Adopt the resolution. BOARD / COMMISSION RECOMMENDATION Not applicable. ATTACHMENTS 1. Proposed Settlement Agreement and Mutual Release of Claims Resolution No. a o 0I- a a y City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Mr. Arthur O. Henschel, III 9100 Single Oak Drive, Space 30 Lakeside, CA 92040 Dear Mr. Henschel, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Mr. Richard Opper, Esq. Opper & Varco LLP 225 Broadway, 19th Floor San Diego, CA 92101 Dear Mr. Opper, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Mr. James Beauchamp Manager AARB, LLC Beauchamp Family Trust 327 West 11th Street National City, CA 91950 Dear Mr. Beauchamp, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 The Henschel Trust c/o Antonia E. Martin, Esq., Trustee Law Offices of Antonia E. Martin 401 West A Street, Suite 1775 San Diego, CA 92101-7901 Dear Ms. Martin, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Estate of Arthur O. Henschel c/o Antonia E. Martin, Esq., Executor Law Offices of Antonia E. Martin 401 West A Street, Suite 1775 San Diego, CA 92101-7901 Dear Ms. Martin, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Sincerely, Michael R. Della, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Mr. James L. Henschel 432 Madison Avenue Boonton, NJ 07005 Dear Mr. Henschel, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resclution and a fully executed copy of the agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 24, 2007 Ms. Charlene Bennett 1802 Plaza Drive, Apt. 15 Elwood, IN 46036 Dear Ms. Bennett, On September 18, 2007, Resolution No. 2007-224 was passed and adopted by the Community Development Commission of National City, authorizing execution of a settlement and release of claims agreement with AARB LLC, Beauchamp Family Trust, The Henschel Trust, The Estate of Arthur O. Henschel Jr., James L. Henschel, Arthur O. Henschel III, and Charlene Bennett. We are enclosing for your records a certified copy of the above Resolution and a fully executed copy of the agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper