Full opinion text
MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. “Who, after all, speaks today of the annihilation of the Armenians? ” These chilling words are said to have been spoken by Adolf Hitler in 1939 in reference to the largely successful efforts by the Ottoman Turkish government to eliminate the Armenian population living on its historic homeland during the World War I era, known today as the Armenian Genocide. Beginning around the year 2000, a group of dedicated individuals agreed to organize their efforts to build a museum in Washington, D.C. devoted to the understanding and memorialization of the Armenian Genocide. Unfortunately, that end goal was about all they could agree on, and after seven years of internal debate and struggles over the size and scope of the project, relations between the parties broke down completely, resulting in litigation that led to the three above-captioned cases. The parties to these actions are The Armenian Assembly of America, Inc. (the “Assembly”), Armenian Genocide Museum & Memorial, Inc. (“AGM & M”), Gerard L. Cafesjian (“Cafesjian”), John J. Waters Jr. (“Waters”), and The Cafesjian Family Foundation, Inc. (“CFF”). On March 9, 2010, this Court issued a series of rulings granting-in-part and denying-in-part the parties’ various motions for summary judgment. See Armenian Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 691 F.Supp.2d 132 (D.D.C.2010); Armenian Assembly of Am., Inc. v. Cafesjian, 692 F.Supp.2d 20 (D.D.C.2010); Waters v. Armenian Genocide Museum & Mem’l, Inc., 692 F.Supp.2d 57 (D.D.C. 2010). The parties subsequently agreed to consolidate these cases for a single trial by the court without a jury. See Joint Stip. to Nonjury Trial, ECF No. [102]; Stip. of Consolidation, ECF No. [108]. Based on the parties’ proposals during pretrial hearings, the Court ordered the parties to file consolidated complaints and answers with specific factual allegations supporting their remaining claims and counterclaims in the three cases. The Assembly and AGM & M (collectively, “Plaintiffs”) filed their Consolidated Complaint (hereinafter, “Complaint”), which alleges that Cafesjian and Waters each breached their fiduciary duties to AGM & M (Count One) and to the Assembly (Count Two), that Cafesjian breached his duty of good faith and fair dealing to the Assembly (Count Three), and that Cafesjian and Waters each misappropriated trade secrets of the Assembly (Count Four). See generally Consol. Compl. (hereinafter, “Compl.”), ECF No. [109]. Cafesjian, Waters, and CFF (collectively, “Defendants”) filed their Streamlined Answer and Counterclaims, which asserts claims for breach of contract against the Assembly (Count I) and AGM & M (Count II), breach of implied covenant of good faith and fair dealing against the Assembly (Count III) and AGM & M (Count IV), third-party beneficiary against AGM & M (Count V), unjust enrichment against the Assembly and AGM & M (Count VI), and indemnification against AGM & M (Count VII). See Streamlined Countercls. (hereinafter, “Countercls.”), ECF No. [104]; Answer to Consol. Compl., ECF No. [141]. Before trial, the parties also filed proposed conclusions of law. See Defs.’ Proposed Conclusions of Law, ECF No. [144] (hereinafter, “Defs.’ Concls.”); Pis.’ Proposed Conclusions of Law, ECF No. [145] (hereinafter, “Pis.’ Concls.”). A bench trial commenced on November 9, 2010. Plaintiffs called thirteen witnesses and introduced deposition testimony from five additional witnesses. Defendants called eight witnesses and introduced deposition testimony from one additional witness. To avoid having witnesses testify twice (once during Plaintiffs’ case and once during Defendants’ case), the parties agreed that Defendants could cross-examine Plaintiffs’ witnesses beyond the scope of direct examination. At the close of Plaintiffs’ casein-chief, Defendants orally moved for judgment on partial findings under Federal Rule of Civil Procedure 52(c). Plaintiffs also moved orally for judgment on partial findings at the close of Defendants’ case-in-chief. After hearing brief argument, the Court took those motions under advisement. Plaintiffs did not present any evidence in rebuttal to Defendants’ case. The trial concluded with closing arguments on the twelfth trial day, November 29, 2010. There were 453 exhibits admitted into evidence, 282 marked as Plaintiffs’ exhibits (“PX-”) and 171 marked as Defendants’ Exhibits (“DX-”). See Amended Exhibits Entered During Trial: Nov. 9-24, 2010. At the request of the Court, the parties did not file proposed findings of fact or revised conclusions of law after trial. However, Defendants did file a [190] Notice of Untruthful Testimony of Plaintiffs’ Witnesses summarizing what they perceived to be inconsistencies in the testimony presented by Plaintiffs, to which Plaintiffs filed a[191] Response. The Court has placed no special weight on these filings and has made its own conclusions with respect to the credibility of the witnesses. This memorandum opinion contains the Court’s findings of fact and conclusions of law. In making the findings enumerated below, the Court has relied on the testimony of the witnesses, the exhibits admitted into evidence, and the record as a whole. The Court has not relied on any exhibits that were not admitted into evidence or testimony that was stricken from the record at trial. In addition, the Court has considered only the legal arguments made by the parties on the record during the course of the trial, in the pleadings, or in the proposed conclusions of law. I. INTRODUCTION A. Preliminary Observations Before the Court proceeds with a recitation of the facts, a few preliminary comments are in order. The factual record in this case is voluminous, and the Court has reviewed every exhibit admitted and reviewed the transcripts of each witness’s testimony. The key events relevant to this dispute occurred over a period of approximately eight years leading up to the filing of the first lawsuit and continued while the parties were in litigation. Although the parties strongly disagree about what motivated them to take certain actions, the facts of what actually occurred are largely undisputed. However, because context is critical to understanding the relationships between the parties and the reasons for their actions (or their inaction), the Court has endeavored to make its findings of fact as specific and detailed as possible. Several key witnesses were unable to recall specific details from the meetings and events that gave rise to the claims in these lawsuits. In some cases, the witnesses were unable to remember any details from such meetings or events. To a certain extent, these witnesses’ lack of memory is unsurprising. After all, the events took place between four and ten years ago, and the Court is also mindful of the fact that several of these witnesses are octogenarian. However, in many instances, lack of memory appeared to be driven more by convenience than cognition. Some witnesses were unable to recall their attendance at critical meetings even when presented with written records of the actions they took. Some witnesses could recall in detail events that were favorable to them (or unfavorable to their opponents) but were hazy about similar events that were unfavorable to them (or favorable to their opponents). Additionally, most of the witnesses who testified at trial are biased in some manner, either because they have a financial stake in the outcome of the trial or because their reputation has been called into question by the allegations raised in this litigation. The Court considers all of this as a factor in assessing the credibility of the witnesses. Because of concerns about the reliability of some of the witnesses’ testimony, the Court relies heavily on the admitted exhibits to document what transpired at the time. With the exception of a few exhibits that were admitted only for a limited purpose, the parties have largely waived objections as to the authenticity of or hearsay contained in the vast array of emails, letters, meeting notes, minutes, and other records admitted during the trial. Although there are some minor inconsistencies and a few major ones in the documentary evidence submitted, the Court finds that the exhibits are generally the best evidence of what occurred because most of them were created at the same time as the events they describe or shortly thereafter. Therefore, in the face of a conflict between the exhibits and witness testimony, the Court has sided more often with the story told by the exhibits. With a few exceptions, however, the inconsistencies are not great, and more often the testimony corroborates the other evidence in the record. One witness whose testimony is not reflected in the factual narrative below is that of Defendants’ expert in corporate governance, Robert Krasne. Plaintiffs objected to Mr. Krasne’s testimony before trial, and the Court deferred ruling on Plaintiffs’ motion in limine until trial. Following voir dire of Mr. Krasne, the Court ruled that he was qualified to testify as an expert on issues of corporate governance. See 11/19 PM Tr. at 4. However, the Court noted that as the finder of fact, it would determine how much weight to give his testimony. After hearing his testimony in light of the record as a whole, the Court finds that Mr. Krasne’s testimony does not aid the Court in understanding the evidence or in determining any fact in issue. Accordingly, the Court has given no weight to Mr. Krasne’s testimony and has not relied on it in any manner. Having set forth those preliminary issues, the Court shall now relate in narrative form the story underlying the claims in this litigation. The Court shall begin by describing the parties and the other key individuals who play major roles in the drama that unfolded at trial. The Court shall then lay out the factual background in a predominantly chronological fashion, grouping together incidents relating to particular claims. Then, the Court shall review in detail each of the claims and counterclaims asserted based on the facts credited by the Court. After setting forth the Court’s legal conclusions, the Court shall address the issue of remedies. B. Cast of Characters — the Parties and Key Individuals Below is an introductory description of all the major players in the story; these individuals and organizations appear continuously throughout the period of events relevant to this litigation. The evidence cited below is credited by the Court as undisputed and/or uncontroverted. The Armenian Assembly of America (the “Assembly”) was formed in 1972 as a charity for the purpose of undertaking educational, cultural and advocacy efforts in support of human rights and genocide prevention of concern to the Armenian American community, and it remains so to this day. Stip. Facts ¶ 1. The Assembly is a District of Columbia non-profit corporation classified by the Internal Revenue Service as tax-exempt pursuant to § 501(c)(3) of the Internal Revenue Code. Id. Hirair Hovnanian (“Hovnanian”) is one of the founders of the Assembly and has served as the Chairman of the Assembly’s Board of Trustees since the mid-1970s. See 11/9 AM Tr. at 53-55. Hovnanian began working as a builder and property developer in 1958 and continues to operate his successful business in New Jersey, California, and Florida. Id. at 51-52. Hovnanian now lives in New Jersey and focuses mostly on commercial property development. Id. Hovnanian has devoted much of his time and resources to Armenian causes, raising money for the people of Armenia and building four factories there to manufacture building supplies. Id. at 56-57. Hovnanian has contributed approximately $50 million to the Assembly over the past 35 years. Id. at 57-58. Hovnanian’s investments in Armenia are strictly charitable in nature, and he has refused on principle to take any profits from his activities in Armenia. Id. at 58-59. His grandfather’s entire family perished during the Armenian Genocide, except for his father, and Hovnanian has a deep personal connection to that aspect of Armenian history. Id. at 60. Robert Aram Kaloosdian (“Kaloosdian”) is another one of the founders of the Assembly. 11/10 AM Tr. at 133. He is now eighty years old and semi-retired from the practice of law, living in Massachusetts. Id. at 132-33. He has held a variety of leadership positions within the Assembly and is currently a member of the Assembly’s Board of Trustees. Id. at 133-34. Kaloosdian serves as Chairman of the Board of Governors for the Armenian National Institute (“ANI”), which was established in 1997 as an entity dedicated to the study, research, and affirmation of the Armenian Genocide. Id. at 135; Stip. Facts ¶¶ 15-16. ANI was initially formed as a subsidiary of the Assembly and is classified by the IRS as a tax-exempt entity under § 501(c)(3) of the Internal Revenue Code. Stip. Facts ¶ 2. Dr. Rouben Adalian (“Adalian”) is the director of the Armenian National Institute. 11/15 PM Tr. at 86. He has a doctorate in history from the University of California, Los Angeles, specializing in the history of Armenia, the Middle East, and the Caucasus. Id. at 87. Through his position at ANI, Dr. Adalian has extensively researched the Armenian Genocide and worked to document its history. 11/15 PM Tr. at 90. Anoush Mathevosian (“Mathevosian”) is an Armenian American philanthropist who has devoted much of her time and money to the Assembly. She currently resides in New York. Stip. Facts ¶ 10. Her grandfather was killed in the genocide, and her father was deported to Persia, where Mathevosian was born. Mathevosian Dep. Tr. at 8-9. Her family’s suffering in the genocide left Mathevosian with a deep emotional scar. Id. at 9. Beginning in 2003, Mathevosian suffered a series of health problems, including a collapsed lung, a heart attack, and a stroke. Mathevosian Dep. Tr. at 69. The Armenian Genocide Museum & Memorial, Inc. (“AGM & M”) was formed in October 2003 as a non-profit corporation in the District of Columbia. Stip. Facts ¶ 3. AGM & M was established for the purpose of constructing, owning, operating, and maintaining a permanent museum and memorial devoted to the victims and survivors of the Armenian Genocide. Id. AGM & M is classified by the IRS as tax-exempt under § 501(c)(3) of the Internal Revenue Code. Id. ¶ 4. The initial members of the Board of Trustees for AGM & M were Hovnanian, Kaloosdian, Mathevosian, and Gerard L. Cafesjian. Gerard L. (“Gerry”) Cafesjian was born in 1925 in Brooklyn, New York to immigrants from Armenia and Constantinople. See DX-305. Cafesjian’s father came to America after the rest of his family was killed in the genocide. Id. After serving in the Navy in World War II, Cafesjian received a degree in economics from Hunter College and a law degree from St. John’s University. Id. In 1952, Cafesjian began a 44-year career with West Publishing and was very successful. Id. In 1996, West Publishing was acquired by the Thompson Corporation, and Cafesjian sold his shares in the company and retired. Id. Cafesjian received between $250-300 million for his stock in West, and he turned his attention to philanthropic pursuits. Cafesjian Dep. Tr. at 23. One of Cafesjian’s areas of interest is art — he had created an art program while working at West and he is a collector of contemporary art, particularly glass sculpture. See DX-305. He founded the Gerard L. Cafesjian Pavilion at the Scottsdale Museum of Contemporary Art, which houses some of his collection. Id. Cafesjian also became interested in Armenian causes upon retiring from West. Cafesjian and his family donated $30 million to establish The Cafesjian Family Foundation, Inc. (“CFF”) in 1996. 11/15 PM Tr. at 14; DX-305. Cafesjian is the founder and president of CFF, and CFF is a non-profit corporation organized under Florida law. Stip. Facts ¶¶ 6-7. CFF was founded to help Armenians around the world, particularly those located in Armenia, and its primary focus is economic development. DX-305. CFF invests in a number of programs in Armenia through various subsidiaries. CFF’s projects include the development of solar and wind energy in Armenia with the aim of establishing energy independence for the country, building a professional and independent media, fostering the development of high-tech industry, and developing real estate. Id. As of 2002, CFF employed over 400 people in Armenia. Id. CFF is funded almost entirely by the Cafesjian family, with contributions made as needed for charitable or tax planning purposes. 11/15 PM Tr. at 14. Between 2003 and 2006, CFF’s general account balance was typically less than $1 million. 11/15 PM Tr. at 13-14. Cafesjian’s various enterprises are coordinated through GLC Enterprises, Inc. (“GLC”), which has been described as a “family office” based in Minnesota. 11/15 AM Tr. at 22. Both CFF and GLC are governed by the same individuals. Cafesjian Dep. Tr. at 24. From 1996 to 2000, Cafesjian controlled between five and twenty companies, and Cafesjian later had as many as thirty-five companies. 11/15 AM Tr. at 20-21. Nearly all of these companies (except for CFF and an entity called the Cafesjian Museum Corporation) were for-profit entities, many doing business in Armenia. Id. at 21-30. Although operated as for-profit entities, Cafesjian does not earn any profits from these businesses. 11/18 PM Tr. at 16; 11/19 AM Tr. at 64. Rather, Cafesjian reinvests the profits in the businesses to foster job creation and sustainable economic development in Armenia. 11/18 PM Tr. at 16; 11/19 AM Tr. at 64. CFF has invested approximately $50 million in various enterprises in Armenia. In addition, Cafesjian has invested approximately $43 million to develop the Cafesjian Center for the Arts in Armenia’s capital city of Yerevan. 11/18 PM Tr. at 15. Cafesjian has devoted most of his time since retirement to CFF, but he does not involve himself in the “nitty-gritty” details of day-to-day management. 11/19 AM Tr. at 66, 68. Instead, he relies on his right-hand man, John Waters Jr. (“Waters”). John Waters attended Georgetown University and got an MBA from the University of Minnesota. 11/15 AM Tr. at 8-9. Waters met Cafesjian while working at West Publishing. Id. A few months after Cafesjian left West, he hired Waters to do some consulting work for him. Id. at 15. Although not of Armenian descent, Waters became aware of Armenian issues in college through a friend who took him to a genocide recognition rally at the White House; the experience resonated with Waters because his father had served as a linguist officer in Turkey, and Waters was born in Istanbul. Id. at 16. Waters became an employee of GLC in late 1996. 11/15 AM Tr. at 19. Ultimately, Waters became Vice President of both GLC and CFF. Id. at 20. In those roles, it was Waters’s job to take any action as directed by Cafesjian, and Waters became involved in every Cafesjian enterprise between 1996 and his departure from the Cafesjian organization in March 2009. Id. at 20-21; 11/24 AM Tr. at 23. Waters was responsible for acting on Cafesjian’s behalf in managing, operating, and implementing each of Cafesjian’s personal investments. 11/15 AM Tr. at 30. Cafesjian described Waters’s job as being his “personal assistant, something bordering on, but not quite, alter ego, pretty much what I wanted him to do.” Cafesjian Dep. Tr. at 106. Waters’s duties required him to travel to Armenia between 50 and 60 times over the course of his employment with Cafesjian. 11/15 AM Tr. at 32. Waters testified that he believed at all times that he owed his highest duty of loyalty to Cafesjian. 11/24 AM Tr. at 70. Ross Vartian (“Vartian”) has worked in support of Armenian causes for nearly his entire career. After being discharged from the Army after service in Vietnam, Vartian earned a degree from Michigan State University and accepted a job as the founding principal for an ethnic day school in Detroit. 11/19 PM Tr. at 70. After five years in that position, the Assembly hired him in 1979 for the number-two position in their Washington, D.C. office. Id. at 71. Shortly thereafter, Vartian was elevated to the position of Executive Director. Id. He continued to work for the Assembly until 2005. Vartian is now retired, lives in Michigan, and serves on the board of directors for CFF. Id. at 70. Van Krikorian (“Krikorian”) is the Chairman, CEO, and General Counsel of Global Gold Corporation. 11/17 AM Tr. at 141. He attended college at George Washington University and earned his law degree from Georgetown. Id. Krikorian first became involved with the Assembly in 1977 as a college intern, and he has been involved ever since. Id. at 141-42. He has served on the Assembly’s Board of Directors since at least 1993, and he served as Chairman from 1998 to 2002, after which he remained on the executive committee. Id. at 142. Krikorian is also a life trustee of the Assembly. Id. II. FACTUAL BACKGROUND A. Initial Interest in an Armenian Genocide Museum The Armenian Genocide is widely recognized as the first genocide of the 20th century. Stip. Facts ¶ 13. Of the estimated 2.1 million Armenians living in the Ottoman Empire on the eve of World War I, approximately 1.5 million were killed, and hundreds of thousands more were deported. Id.; 11/15 PM Tr. at 88-89. During this period the Armenian people were subjected to deportation, expropriation, forced conversion, abduction, torture, massacre, and starvation. Stip. Facts ¶ 13. This historical tragedy is the single most resonant occurrence in modern Armenian culture. Id. ¶ 14. Armenians worldwide seek to ensure that the Armenian Genocide experience will never be forgotten. Id. Beginning in the 1990s, the Assembly decided that a museum would be a mark of respect that could both pay homage to the victims and survivors of the genocide and educate Americans about what happened to the Armenian population before, during, and after World War I. Id. On or about April 1, 1996, Hirair Hovnanian made a pledge of about $1.6 million to establish the Armenian National Institute for the study, research, and affirmation of the Armenian Genocide. Stip. Facts ¶ 15; 11/9 AM Tr. at 60. ANI began its operations on or about April 1, 1997. Stip. Facts ¶ 16. Dr. Rouben Adalian was hired to be the director of ANI. Dr. Adalian explained that “affirmance” of the genocide is an important goal of the Armenian community because the Turkish government, among others, has denied that there was a genocide. 11/15 PM Tr. at 89-90. Inspired by Hovnanian’s pledge, Anoush Mathevosian decided in 1996 to pledge $3 million to be used for the purpose of constructing a permanent museum in Washington, D.C. dedicated to the victims and survivors of the Armenian Genocide. Stip. Facts ¶ 17; 11/9 AM Tr. at 60-61. In 1996, the Assembly began to explore properties in Washington, D.C. that would be suitable for a museum. Stip. Facts ¶ 18. The search was focused on double-townhouse-type properties with roughly 10,000 square feet. 11/19 PM Tr. at 72. Around this same time, Cafesjian was independently planning to build a memorial to the Armenian Genocide. 11/19 PM Tr. at 72. When Cafesjian heard about the creation of ANI, he had Waters contact Rouben Adalian to find out more about the project. Stip. Facts ¶ 20. Cafesjian and Waters met with Adalian in New York on April 30, 1997, and Adalian informed them of the plans to build a museum. Stip. Facts ¶ 21; PX-4. Cafesjian expressed an interest in potentially associating his planned memorial with the museum project. Stip. Facts ¶ 21; 11/19 PM Tr. at 72; PX-4. Because he had not been involved in the Assembly, Cafesjian invited Hovnanian, Kaloosdian, and Adalian to meet with him and Waters at Cafesjian’s home in Minnesota, where they discussed the Assembly’s advocacy efforts and the museum project. Stip. Facts ¶ 23; 11/10 AM Tr. at 142-45; 11/15 AM Tr. at 38-39; PX-8. Cafesjian officially joined the Assembly as a trustee in August 1998, and Waters was designated as an Associate Trustee based on Cafesjian’s gift of $25,000 on his behalf. See PX-262; Stip. Facts ¶ 25. At that point in time, Cafesjian and Waters continued to search separately for a location for a memorial. See PX-13; Stip. Facts ¶ 24. In April 1999, Cafesjian pledged $1,050,000 to the Assembly and was designated a life trustee. See DX-192. B. The Acquisition of the National Bank of Washington Building In or about late 1999, the Assembly identified the National Bank of Washington, located at 619 14th Street, NW, Washington, D.C., as a possible site for the museum. Stip. Facts ¶ 26. Although it was much larger than the properties they had been looking at to date, everyone involved in the search was impressed by the National Bank of Washington building (the “Bank Building”). 11/19 PM Tr. at 72-73; 11/22 AM Tr. at 72-73. The Bank Building has a prime location — -just blocks from the White House — and its exterior and part of the interior have been designated as historic landmarks in the D.C. Inventory of Historic Sites and the National Register of Historic Places. Stip. Facts ¶ 26. The property on which the Bank Building is located also includes a vacant back lot which would allow for the construction of an annex. In or about January 2000, Tom Kevorkian, then-Chief Operating Officer for the Assembly, sent a package of documents to Cafesjian and Waters regarding the Bank Building and other potential sites for the project. Stip. Facts ¶ 27. Cafesjian was very interested in the Bank Building, and he dispatched Waters to do due diligence on the property. See PX-38; 11/19 PM Tr. at 73. Because there was another buyer who had likely submitted an offer, they had to act expeditiously to secure the property. 11/15 AM Tr. at 45-46. Waters worked with Tom Kevorkian to arrange the purchase. Id. at 46-47. Cafesjian agreed to donate $3.5 million to the Assembly to create a consolidated location at which the genocide museum, the genocide memorial, and offices for ANI could be located. Stip. Facts ¶ 28; DX-12. Anoush Mathevosian agreed to increase her pledge to $3.5 million to acquire the property. Stip. Facts ¶ 28; PX-16. The Assembly closed on the Bank Building on February 16, 2000, purchasing the building for $7.25 million. Stip. Facts ¶ 29. The funds for the purchase were comprised of a $3.5 million pledge from Mathevosian, a $2.5 million grant from CFF, and a $1 million grant from Cafesjian’s Vanguard Charitable Endowment ProgramCafesjian Family Foundation Charitable Trust. Id. ¶ 30. Because Mathevosian could not access funds in sufficient time to wire them to the Assembly prior to the closing, CFF provided the Assembly with a $4 million interest-free bridge loan to cover Mathevosian’s pledge and to complete the transaction. Id. ¶ 31. On March 8, 2000, after the Assembly had received Mathevosian’s pledged donation, the Assembly repaid CFF $3.5 million by wire transfer. Id. On March 17, 2000, the Assembly executed a promissory note produced by and for the benefit of CFF for the remaining $500,000. Stip. Facts ¶ 32; PX-115. The note was interest-free and payable in full on May 16, 2000. Stip. Facts ¶ 32; PX-115. The note also contained a Minnesota choice-of-law provision. See PX-115. The parties agreed that as a condition of Cafesjian’s donation of funds for the purchase of the Bank Building, the Assembly was required to include a memorial named after Cafesjian as part of the project. Stip. Facts ¶ 33; DX-12. On March 30, 2000, the Assembly sent Cafesjian a letter confirming his donations and its obligation to build a memorial. Stip. Facts ¶ 34; PX-111. The letter noted that Cafesjian’s proposed design for the memorial had not been finalized but that his concept consisted of “a walk-in, contemplative, chapel-like space, with interior walls of native Armenian stone and a glass sculpture by Stanislav Libensky as the focal point.” PX-111. The memorial was expected to take up approximately 1200 square feet of floor space and 40,000 cubic feet of overall volume. Id. The Assembly agreed to cooperate with the design firm or artist chosen by CFF to complete the memorial. Id. The anticipated completion date for the project was March 2002, and CFF agreed to make contributions to the Assembly to finance the memorial. Id. The Assembly’s letter also confirmed that the Assembly would form a planning and development committee for the project. PX-111. The planning committee was to be responsible for establishing the vision for the project; for preparing and adopting a site redevelopment plan to address the design, development, renovation, potential expansion, and initial utilization of the property; and for adopting and executing a contribution and endowment program to fund the completion of the project and the operation of the property, the museum, and the memorial. Id. The committee was to be comprised of one representative from CFF, Anoush Mathevosian (or her designated representative), the Chairmen of the Assembly’s Board of Trustees and Board of Directors and ANI’s Board of Governors, and any person who agreed to donate $1 million or more to the project. Id. The letter explained that decisions of the committee, “in accordance with the Assembly’s and ANI’s history, shall be by consensus.” Id. Because of the size of the Bank Building (34,000 sq. ft.) and the property on which it sits, it was contemplated that the Assembly and ANI would move out of their existing offices when their lease expired in March 2002 and occupy space on the new site. See PX-111; 11/22 PM Tr. at 87. Accordingly, it was agreed that the development of suitable office space on the property would be a priority. PX-111. Ross Vartian, then-Executive Director for the Assembly, testified at trial that in retrospect, they were naive to think that the museum, the memorial, and offices for the Assembly and ANI could all be housed within the Bank Building. 11/22 AM Tr. at 114. After the closing, on February 28, 2000, Anoush Mathevosian wrote a letter to the Assembly restating the purpose of her pledge, which she dedicated to her parents. See PX-110. The letter stated that the purpose of her gift was to foster the development of an Armenian Genocide museum with educational exhibits, and Mathevosian expressed her desire that the Bank Building be used solely for the Assembly, ANI, the museum, and the memorial. Id. She wrote: To be certain that future generations remain true to the intent of our donations, it should be clear that no changes will be made to the purpose and usage of the Museum; that no mortgages are taken against the property and that the Museum’s perpetuation is not jeopardized as such or encumbered in any way; and that there will be no subsequent changes to the name of the museum. Id. At her deposition, Mathevosian explained that she wanted to ensure that they paid for the property in full so that it would not be mortgaged or sold in the future. Mathevosian Dep. Tr. at 14-15. Mathevosian asked that these understandings be incorporated into the permanent records of the organization. PX-110. However, there is no evidence that Mathevosian’s expressed desires were ever formally incorporated by the Assembly into a binding obligation. Mathevosian testified that Hovnanian agreed to her conditions, but she did not recall whether he had done so orally or in writing. Mathevosian Dep. Tr. at 16-17. John Waters testified that he did not see Mathevosian’s letter until several years later, in late 2003. 11/15 AM Tr. at 49. C. Acquisition of the Properties Adjacent to the Bank Building Once the Bank Building was acquired by the Assembly, Cafesjian began to acquire property adjacent to the Bank Building. John Waters testified that it was typical for Cafesjian to look at adjacent properties when acquiring real estate. 11/22 PM Tr. at 92. Cafesjian considered several possibilities with respect to these properties, initially planning to use them to build a contemporary art museum called the Cafesjian Contemporary Art Museum. Id.; 11/19 PM Tr. at 95; Cafesjian Dep. Tr. at 151. Cafesjian thought that an art museum co-located with the genocide museum would draw more visitors. Cafesjian Dep. Tr. at 151; 11/19 PM Tr. at 95-96. Ultimately, that plan was abandoned when Cafesjian decided to build a contemporary art museum in Yerevan, Armenia. 11/22 PM Tr. at 92-93. At that point, Cafesjian decided to donate the properties to the Assembly for the purpose of expanding the footprint of the museum project. Id. Ultimately, Cafesjian acquired four parcels adjacent to the Bank Building: (1) 1342 G Street, NW; (2) 1340 G Street, NW; (3) 1338 G Street, NW; and (4) 1334-36 G Street, NW (collectively, the “Adjacent Properties”). Each of the properties was acquired in an arms-length transaction by one of Cafesjian’s entities, TomKat Limited Partnership (“TomKat”). 11/23 AM Tr. at 35; Stip. Facts ¶36. TomKat executed an agreement to purchase 1338 G Street for $1.2 million on March 10, 2000 and closed on May 15, 2000. Stip. Facts ¶ 37. TomKat purchased 1342 G Street for $1.2 million on March 16, 2000 and closed on September 30, 2000. Id. ¶ 38. On October 24, 2000, TomKat entered into an Installment Purchase and Sale Agreement to purchase 1340 G Street for a total of $3 million. Id. ¶ 39. Under the installment agreement, payments of $150,000 are due each year for a period of ten years, with a final balloon payment of $1.5 million due in March 2011. Id.; 11/19 AM Tr. at 55. The property was owned by the Ana Sherman Revocable Trust, and the deed is being held in escrow until the final payment is made. 11/23 AM Tr. at 41-42; DX-624N. The final adjacent property, 1334^16 G Street, NW, also known as the “Families U.S.A.” building, was acquired later by TomKat, which purchased the building from a third-party seller for $6.5 million in September 2003. Several of the Adjacent Properties were taken subject to leases. D. Initial Efforts to Develop the Museum — Museum Planning Committee As opposed to the previous sections, where the facts were largely undisputed and/or uncontroverted, the findings made below increasingly reflect the Court’s credibility determinations and weighing of conflicting evidence in the record. The Armenian American community was euphoric about the acquisition of the Bank Building. 11/19 PM Tr. at 73. However, the real work in creating an Armenian Genocide museum and memorial lay ahead. A planning committee was formed to develop the museum project. The planning committee was a somewhat fluid body; there were about a dozen different individuals who became involved to varying degrees in the planning of the museum. See 11/15 AM Tr. at 57. The committee included both Assembly leadership and staff, including Hirair Hovnanian, Anoush Mathevosian, Gerry Cafesjian, Robert Kaloosdian, Van Krikorian, John Waters, Rouben Adalian, Tom Kevorkian, and Ross Vartian. 11/19 PM Tr. at 74-75. Ultimately, any decision made by the planning committee had to be approved by the Assembly. 11/15 AM Tr. at 57. The planning committee was chaired by Hirair Hovnanian. Id.; 11/18 PM Tr. at 45; 11/19 PM Tr. at 74; DX-14. The planning committee largely operated by consensus, and there were rarely any formal votes taken. 11/22 PM Tr. at 98-99. According to John Waters, any decision that was approved by Hovnanian was adopted on behalf of the Assembly, whereas decisions he did not agree with did not move forward. Id. at 99. At trial, Hovnanian testified incredibly that he did not recall being chair of the planning committee or having any involvement in the early development of the museum, apart from attendance at a few occasional meetings for which he did not prepare. 11/9 AM Tr. at 112-15. In fact, Hovnanian testified that prior to November 2003, he “had nothing to do with this project. Absolutely zero.” Id. at 125. The Court finds this testimony not credible in light of the extensive evidence in the record of Hovnanian’s involvement during this period. The planning committee held its first meetings in March and April of 2000. See DX-13; DX-14; DX-15; DX-16. During those meetings, the committee discussed potential uses of the property, budgetary issues, and a six-month work plan. DX-13; 11/19 PM Tr. at 75. At a meeting on April 12, 2000, the committee approved three proposals drafted by Van Krikorian: (1) a use plan for the Bank Building whereby the first floor would be commercial/mixed use, the second and third floors would house the museum with an archway to the memorial, and the fourth floor would be used as offices for the Assembly and ANI; (2) a fundraising campaign to raise $40 million for building and endowment; and (3) creation of a Project Manager staff position to manage the project. 11/19 PM Tr. at 75-76; DX-15; DX-16. The planning committee met again on May 4, 2000. See DX-17. John Waters and Tom Kevorkian gave a presentation at this meeting providing an overview of the project, including a discussion of the budget, space limitations, needs of the various stakeholders, and a proposed timeline. See PX-347; 11/15 AM Tr. at 59-63. The plans at this time called for the museum to be ready for move-in by March 2002 and open to the public by April 2002. See PX-347. Waters also reported on the status of the negotiations over the first three adjacent properties. See DX-17; PX-347. Hirair Hovnanian raised the issue of fund-raising and suggested the creation of a Founders Circle with the goal of locating up to four individuals who could bequest $10 million to the project. DX-17. The committee also agreed that vision statements should be created for ANI, the Assembly, and the museum project, which had been designated as the Armenian Genocide Museum and Memorial. Id. John Waters and Tom Kevorkian were tasked with conducting the search for a project manager and were expected to recommend candidates for final interviews by the end of May 2000. Id. They began this process, but it was not completed by month’s end. 11/15 AM Tr. at 68. On July 13, 2000, Kevorkian and Waters wrote a confidential memorandum to the planning committee entitled “Immediate Decisions.” See DX-19. “[W]e are concerned with the pace of our deliberations,” they wrote. Id. “Specific actions are required throughout the next 45 days to ensure we continue in a coordinated fashion.” Id. They asked the committee to complete the vision statements discussed during the May meeting, approve a draft job description for the Project Coordinator staff position, hear presentations from project management firms, and form a capital campaign subcommittee. Id. In light of the anticipated costs of hiring professionals, the outstanding promissory note of $500,000 to CFF, and an account balance of $155,000, Kevorkian and Waters wrote that “our cash position becomes paramount.” Id. They proposed that the committee hold a two-day meeting during August to discuss these issues. M Without dedicated staff to shepherd the project along, the pace of the project remained deliberate. By the end of 2000, the Assembly had agreed to employ a full-time staffer. Ross Vartian, the Assembly’s long-serving Executive Director, volunteered for the position, and on January 3, 2001, he became the Director of Planning for the museum project. Stip. Facts ¶ 41; 11/19 PM Tr. at 79. Vartian believed that his working relationships with the key stakeholders could help the planning committee build consensus. Id. at 79-80. In his new position, Vartian began consulting widely within the Armenian community of professionals and within the community of museum experts in Washington to acquire as much information as possible about the museum planning process. Id. at 80. On January 10, 2001, Vartian drafted a memorandum outlining an agenda and a set of goals for the museum project to achieve in the first quarter of 2001. See PX-344. This document was sent to Hirair Hovnanian’s daughter Edele, who was chairing an advisory committee of professionals consulting on the museum project. See id. Vartian noted that there was not yet any consensus from the planning committee on how to proceed with the selection of professional consultants and contractors. Id. Vartian also indicated that there had been a discussion by the planning committee about potentially hiring a “name” architect to draw attention to the project, but Cafesjian had expressed concerns about the added costs and other potential negatives such as the loss of creative control over the project. Id. Vartian indicated that this issue needed to be resolved as soon as possible in order to stay on the project timeline, which at this point called for the museum to be opened in April 2004. Id. Vartian’s memorandum also indicated that there were estimated expenses for 2001 of at least $225,000 (excluding any further obligations), yet there were- no unobligated funds to cover pre-construction operating costs, and the Assembly’s promissory note to CFF was still outstanding. Id. After a few months of consulting with experts and other professionals who gave him free advice, Ross Vartian prepared an executive summary to be presented to the museum advisory committee on March 3, 2001. See DX-22. Vartian had drafted a preliminary mission statement for the museum project and assembled various cost estimates for the building. Id. At this point, it was assumed that the Bank Building would be co-developed with the three adjacent properties acquired by Cafesjian. See id. Vartian proposed an “aggressive” timeline with a museum opening date in April 2004. Id. The advisory committee did not believe that an April 2004 opening was feasible. See PX-125. Vartian revised the timeline to reflect an April 2006 opening and forwarded a summary of his materials to the planning committee in advance of their combined meeting with the ANI Board of Governors in Boca Raton, Florida on March 16, 2001. See PX-125. Vartian indicated in his summary that he believed the project would require at least $32 million to prepare for the opening and an additional $40 million endowment to fund operations. Id. Based on the advice he had received from other experts and consultants, Vartian believed that it would be easier to use the earnings on an endowment to fund operating costs than to rely directly on donations. 11/19 PM Tr. at 85-86. At the planning committee meeting, Vartian’s presentation was cut short when Hirair Hovnanian saw the cost estimates. Id. at 88-89. Hovnanian thought these figures were far too high and believed that the upper limit for the project should be closer to $15 million. Id.; 11/23 AM Tr. at 47-48. According to Waters, Hovnanian criticized Vartian and his daughter Edele for the budget, and Edele left the meeting upset, ending the discussion. 11/23 AM Tr. at 47-48. There was also discussion at this meeting about the process of choosing an architect to design the new buildings to be attached to the Bank Building. 11/19 PM Tr. at 86-87. Hirair Hovnanian had been told by one large charitable foundation that it might be willing to make a significant donation to the project if a “name” architect like Frank Gehry could be attracted to the project. See PX-125. The planning committee, including Ross Vartian, was in favor of this idea because the planning committee members believed that the project would be more marketable. 11/19 PM Tr. at 86-87. The committee also discussed the issue of how to allocate space in the Bank Building and the new construction on the Adjacent Properties among the museum, memorial, art museum, and offices for ANI and the Assembly. See DX-25. However, the committee did not reach any agreements about the allocation of space. 11/19 PM Tr. at 89-90. The following week, Ross Vartian wrote a memorandum to Edele Hovnanian. “By any measure,” he wrote, “the ANI Board of Governors/AGMM Planning Committee meeting was a disappointment.” DX-26. Vartian said he had not anticipated some of the negative reactions to the information he had prepared. Id. Vartian was disappointed because the committee’s inability to reach agreement on major issues meant that progress would be delayed. 11/19 PM Tr. at 90. Vartian indicated that the project needed a feasibility study conducted to determine the options for developing the space available. DX-26. Vartian was also concerned about the lack of agreement over the role ANI should play in developing the museum. Id. Following the meeting, Vartian worked on a proposal to seek expert opinion on space utilization options, refine the budget for 2001, and propose a scope of work to define an exhibit storyline. See DX-28. Vartian spoke with John Waters about allocating space in the Adjacent Properties, but Waters indicated that Cafesjian’s plans for them were too tentative at that point to make any definitive decisions. DX-26. In early April, Ross Vartian, Rouben Adalian, and John Waters met with four firms that were invited to submit proposals for a space utilization/feasibility study: (1) Martinez & Johnson, an architecture firm that had prior familiarity with the Bank Building, (2) Leo Daly, another architecture firm, (3) Gallagher & Associates, an exhibit design firm, and (4) Concord Partners, a property development firm. See DX-28. In a memorandum to the planning committee dated April 9, 2001, Vartian wrote that during the next four months, he expected to, inter alia: (1) have a space utilization/feasibility study on the best development option for the properties acquired by the Assembly and Cafesjian; (2) obtain approvals for the scope of work for ANI; and (3) obtain approvals for the initial major donor campaign and the first round of community outreach. See DX-28. On or about May 22, 2001, Edele Hovnanian resigned all of her positions with the Assembly, including her role as Assembly Treasurer and chair of the advisory committee. “I don’t know if this letter will shock you or not,” she wrote, “but I have been thinking about something for a very long time and now feel strongly that it is the right time to announce it.” DX-28. Addressing the aging leadership of the Assembly, she wrote, “I believe the Assembly no longer is the progressive, forward thinking, dynamic organization is [sic] was for so long and that it is being held together by the talent and dedication of you all and that its future, without you, is destined toward a slow demise.” Id. She criticized the Assembly for failing to transition the organization to the leadership of a new generation and indicated that the Assembly would have to change before she could return. Id. She added that “[a]s far as the museum [is concerned], I think this brief experience really just highlighted the internal problems we have and at this point see no value I can add in ensuring this project is successful.” Id. Edele Hovnanian ultimately did become active again in the Assembly, but the record does not reflect precisely when this occurred, and she did not have an active role in museum affairs going forward. 11/19 PM Tr. at 92. Ross Vartian was disappointed by Edele Hovnanian’s resignation, as was John Waters. Id. at 91; 11/23 AM Tr. at 49. Vartian agreed with her assessment of the Assembly and the museum project. 11/19 PM Tr. at 92. From this point forward, Waters became more heavily involved in the planning committee. 11/22 AM Tr. at 82. On June 25, 2001, Ross Vartian sent a memorandum to the planning committee entitled “Action Items.” See DX-30A. The memorandum outlined nine issues that needed review and action by the committee, including decisions about the structure of the project, the space utilization/feasibility study, the scope of ANI’s work, the revised budget, the hiring of professionals, and fundraising. Id. Vartian described this memorandum as “an example of rethinking the project, working on what was doable and presenting it to the members of the Museum Planning Committee.” 11/19 PM Tr. at 93. Vartian proposed streamlining the structure by eliminating the advisory committee and bringing the key decision-makers under one group so that decisions could be made more expeditiously. Id. at 94; DX-30A. A few days later, Vartian emailed Robert Kaloosdian about dedicating part of the museum to other 20th century genocides and genocide prevention in the 21st century. See DX-31. Vartian thought this would be a “public relations bonanza,” and he cited it as a reason to push for “the maximum physical footprint as we consider development options.” Id. Vartian forwarded this email to Waters, writing, “I am trying to use every opportunity to enlarge the vision of the AGMM.” Id. The next planning committee discussion occurred in the context of a meeting of the Consultative Group, a high-level body within the Assembly, on June 27, 2001. See DX-32 at l. Hovnanian, Kaloosdian, and Krikorian were in attendance, along with several other Assembly members; staff did not participate. Id. Cafesjian and Waters participated in the discussion by phone because they were not members of the Consultative Group and thus not privy to the rest of the discussions about Assembly business. Id.; 11/15 AM Tr. at 74-76. This was the source of some tension between Cafesjian and Hovnanian because Cafesjian wanted to become more active in the Assembly’s affairs but was not yet part of the leadership, and Hovnanian made a comment during the meeting that Cafesjian should have attended in person. 11/15 AM Tr. at 74-76; DX-32 at 3. During the meeting, they discussed the space allocation issues between the Adjacent Properties and the Bank Building, such as a joint entrance between what at that point was to be the Cafesjian art museum and the Bank Building. DX-32 at 2-4. Cafesjian thought that a joint entrance was critical to the success of both and that they should be viewed as a single project with two separate users with common interests. Id. at 3. Waters indicated that Cafesjian had already initiated a competition for architects for the Cafesjian art museum. Id. Hovnanian felt that uncertainty about the Cafesjian art museum plans was holding up progress on the genocide museum, saying “without a footprint from G[erry] Cafesjian, we are stymied on how to proceed.” Id. Waters said that Cafesjian’s vision for the project had grown and that he was concerned about making the genocide museum as relevant as possible. Id. at 3. This statement may have caused some tension; the minutes indicate that Cafesjian and Waters were “trying to avoid an ‘us’ versus ‘them’ mentality.” Id. at 3-4. Hovnanian indicated that they could not move forward until they knew how the common entrance was to be utilized and said that the “ball is in Cafesjian’s court.” Id. at 4. After Cafesjian and Waters hung up the phone, the others continued their discussion. See id. One of the attendees, Carolyn Mugar, questioned the idea of a “joint project” and noted that there was no relationship between the Cafesjian art museum and the genocide museum. Id. The group agreed that it should be considered a cooperative project, not a joint project. Id. Hovnanian commented that he “want[ed Cafesjian] to be close.” Id. The group also agreed that a development plan was needed, but there was no agreement on whether to proceed with a development plan before hiring architects and designers. Id. Shortly after this meeting, Cafesjian decided that he would build his art museum in the Armenian capital of Yerevan rather than on the Adjacent Properties. Cafesjian and Waters discussed the issue and agreed to donate the Adjacent Properties to be used for the genocide museum project. 11/23 AM Tr. at 53-54. Waters discussed this decision informally with Ross Vartian, but no official proposal was made to the Assembly until October 15, 2001, when Cafesjian wrote a letter to Hovnanian outlining the terms of a proposed grant of the three properties that had been acquired. Id. at 54; PX-327. This letter was the first in a series of draft grant agreements that would ultimately be exchanged between Cafesjian and the Assembly. The letter proposed that Cafesjian and/or CFF donate $5.8 million to the Assembly to purchase the properties from TomKat. See PX-327 at 2-3. The proposed grant agreement would require the Assembly to use the properties solely as part of the genocide museum project, subject to plans approved by the Assembly’s planning committee. Id. at 3. The letter also proposed that if the Assembly failed to develop the property according to those plans, CFF would be entitled to a return of either the grant funds or the properties. Id. The letter also proposed a number of conditions on the grant, including relief from several other financial pledges made by CFF, as well as the reissuance of the $500,000 promissory note to CFF that had been executed on March 17, 2000. Id. at 3-4. Following the draft grant agreement language, Cafesjian wrote: We need to keep this entire project moving forward. Our efforts to date have been less than adequate. Every time I think about the time value of money invested in this project, the incomprehensible daily waste of the money saddens me. We simply cannot afford to keep throwing it away. I think we should move immediately to retain the services of the various consultants recommended by John [Waters] and Ross [Vartian], The professionals at Concord Partners, Martinez & Johnson, etc., have the expertise that should be able to help us move this project forward. Id. at 5. Cafesjian also recommended hiring someone with museum experience to serve as director for the museum project. Id. at 5-6. He noted that Ross Vartian had worked hard, but everyone’s lack of experience in museum planning had hindered the Assembly’s ability to make progress. Id. Cafesjian explained at trial that he was frustrated with the lack of progress that had been made and that he wanted to see the genocide museum built during his lifetime. 11/18 PM Tr. at 48. Cafesjian’s proposal was generally well received at the Assembly, although the Assembly never responded in writing to Cafesjian’s letter. See 11/19 PM Tr. at 99; PX-19 at 4. Ross Vartian testified that he was delighted that the genocide museum would be getting three additional properties to expand and fulfill a greater vision. 11/19 PM Tr. at 99. However, there was no meaningful progress throughout the rest of 2001. In a memorandum to Robert Kaloosdian and Rouben Adalian dated December 18, 2001, Ross Vartian wrote that “[i]n essence, 2001 has been lost time which must be more than made up in 2002.” DX-34 at 1. Vartian felt that the lack of progress could be attributed to six different factors: (1) ambiguity over the footprint for the museum site and the entities that would occupy it; (2) lack of agreement by the planning committee on budget, footprint, and how to proceed; (3) changes in leadership on the planning committee, with Edele Hovnanian’s resignation and Kaloosdian’s increased involvement; (4) lack of finances; (5) failure to implement a community outreach campaign; and (6) Vartian’s increasing Assembly responsibilities taking up more time. Id. at 1-3. On January 8, 2002, a few select members of the Assembly’s Board of Trustees met in Miami to discuss several issues of concern to Cafesjian. See PX-308. One of those issues was the Turkish Armenian Reconciliation Commission (“TARC”), an effort at reconciling contentious issues of dispute between Turkey and Armenia such as the Armenian Genocide and other contemporary issues. See id.; 11/19 PM Tr. at 101. TARC was controversial within the Armenian community, and the Assembly supported it notwithstanding objections from a number of its members. Hovnanian and Krikorian were the strongest supporters of TARC, whereas Cafesjian was highly critical of it. 11/19 PM Tr. at 101; 11/18 PM Tr. at 49-50. During the meeting, Hovnanian expressed regrets on behalf of the Assembly that Cafesjian did not have an opportunity to express his objections before the Assembly supported it. 11/18 PM Tr. at 50; PX308 at 1. The museum project was also discussed extensively at the meeting. Cafesjian expressed his concerns regarding the progress over the past two years. See PX-308 at 2. Cafesjian also discussed his belief that the museum should be a “signature building” in Washington, D.C. and indicated that he thought the funding requirements could increase substantially to between $50 and $100 million. Id. Cafesjian explained at trial that he thought the Bank Building alone, as a repository for books and pictures, lacked the “emotional factor” that would be critical to attract public interest. 11/18 PM Tr. at 52. After some discussion, the Assembly Board agreed to proceed with a proposal put forward by Waters and Vartian to commission Concord Partners to conduct a space utilization/feasibility study. See PX-308 at 2. There were also serious discussions about how best to structure the management and operation of the museum. Ross Vartian and John Waters were tasked with analyzing the options for a formal structure and bylaws for the project. See DX-39. On February 28, 2002, Vartian and Waters drafted a confidential memorandum to Cafesjian and Hovnanian discussing three possible options: (1) formalizing the museum as a subsidiary of the Assembly; (2) making the museum a component of ANI; and (3) establishing the museum as an independent entity. See DX-39. They recommended that the museum continue to be a subsidiary of the Assembly until the opening of the museum, after which they believed it should be spun off as an independent entity. Id. Following the meeting in Miami, Ross Vartian contacted Concord Partners to solicit a revised proposal for the space utilization/feasibility study. See PX-17 at 1. Much had changed since Concord Partners submitted its proposal back in April 2001, and Vartian wanted to ensure that the project team, which included architects Martinez & Johnson and exhibit design firm Gallagher & Associates, was adequately prepared. As a property developer, Concord Partners had the expertise necessary to coordinate the development of the properties. See 11/22 PM Tr. at 17-18. Martinez & Johnson was an architecture firm which had created a design for the Bank Building in 1998 for a client that was interested in using the property for its headquarters. 11/12 PM Tr. 58-59. Gallagher & Associates was a museum planning and design firm with a long list of illustrious clients such as the Smithsonian Institution and the National Archives. 11/12 PM Tr. at 7-8. On February 4, 2002, Vartian sent Concord Partners a project description explaining that the project consisted of the Bank Building and the three adjacent properties donated by Cafesjian; Vartian also noted that Cafesjian was considering the acquisition of a fourth adjacent property at 1334-36 G Street. See PX-17 at 2. Vartian further explained that they planned to clear the adjacent properties after the leases had expired and build a new structure with up to 80,000 square feet of space. Id. at 2. It was anticipated that the memorial would be housed within the new construction and occupy between 1000 and 1500 square feet. Id. at 3. The Concord team prepared and submitted a feasibility study proposal in late February 2002. Stip. Facts ¶ 46. On March 16, 2002, the Assembly Board of Trustees held its annual meeting in Boca Raton, Florida. Hovnanian began the meeting by acknowledging that the past six or seven months had been a very difficult time for the Assembly due to controversy over the TARC issue, among other things. See DX-40 at 1. After a discussion of other Assembly business, Robert Kaloosdian and Rouben Adalian gave a report on the status of ANI. See id. at 3-4. Edele Hovnanian, who by this point had returned to the Assembly as Treasurer, reported that the Assembly was depleting its cash reserves and the principal in its endowment. Id. at 4. After lunch, Ross Vartian gave a report on the progress of the museum project. Id. at 5; DX-41. Vartian told the crowd that “all of the museum