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Home My WebLink AboutAnden Group, The; 1992-10-22;m WI '* '. RELEASE 6 AGREEMENT In consideration of the mutual covenants and agreement: contained herein, and good and valuable consideration, anc intending to be legally bound, the parties hereto,, THE ANDEN GROUP a California limited partnership (ttANDENtl) and THE CITY OF CARLSBA (tlCITYtl) agree as follows: 1. Moneta- Settlement. ANDEN shall. pay to CITY th total sum of Nineteen Thousand, Three Hundred Dollars ($19,300.00 via a check for certified funds, delivered to counsel for CITY a the following address: Ronald R. Ball, Esq. City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 CITY will not negotiate the certified check until this Agreemen has been approved by the City Council. 2. Release and Exoneration of the Bo-. CITY hereb releases and exonerates all Bonds provided to CITY with respect t that certain residential housing project of ANDEN commonly known a Santa Fe Knolls Project, including Unit No. 1, Unit No. 2, Unit Nc 3 and Mission Estancia, including but not limited to the followir Bonds : a. Warranty Bond No. ICB010687; b. Warranty Bond No. ICB010729; c. Warranty Bond No. ICB010690; d. Warranty Bond No. ICB010867; and e. Waiver and Materials Bond No,, ICB010867. 1 h. e a1 7. CITY shall prepare, execute and deliver such additiona documentation as shall be reasonably necessary 'to effectuate th release and exoneration of these Bonds. 3. Mutual and General Releases. For and i consideration of the execution and delivery of the Agreement an the documents referred to herein, and of the mutual promise contained in this Agreement, ANDEN and City, hereby release acquit, relieve and forever discharge each other and each of thei respective predecessors, successors, heirs, assigns, employees officers, directors, investors, shareholders, partners partnerships, joint venturers, joint ventures, trusts, agents representatives, consultants, attorneys, benefit plans, paren corporations, subsidiaries, divisions or affi.liated entities corporations or organizations, whether previously or hereinafte affiliated in any manner, from any and all claims,, rights, actions complaints, demands, causes of action (at law or :in equity), suits debts, indemnity or hold harmless obligations, liens, contracts agreements, promises, liabilities, claims, d.emands, damages losses, costs or expenses of any nature whatsoever, whether know or unknown, fixed or contingent, (collectively ttc:laimslt) which th parties now have or may hereafter have arising from any matter, ac or omission from the beginning of time to the last execution dat of this Agreement arising from or relating to the Santa Fe Knoll Project in general, and specifically including any such clair arising from or relating to any Subdivision Agr,eements executin between ANDEN and CITY with respect to the Project and the Bond (!'Released Claimstt) . 2 4. m m 4. Waiver of Civil Code Section 1542. The partie hereto expressly waive and relinquish all rights and benefits the may have under Section 1542 of the Civil Code of the State o California, with respect to the Released Claims. That sectio reads as follows: Ilg 1542. [Certain claims not affected bv seneral release.] A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 5. Attorneys' Fees. Except as otherwise provided b this Agreement, the parties hereto agree to bear their own cost and attorneys' fees in connection with the Project, the Bonds, th Subdivision Agreements, and all matters related to the execution o this Agreement. In the event that any action, suit or othe proceeding is instituted to remedy, prevent or obtain relief frc a breach of this Agreement, arising out of a breach of thi Agreement, or pertaining to a declaration of rights under thi Agreement, the prevailing party shall recover all of such party' reasonable attorneys' fees incurred in each and every such actior suit or other proceeding, including any and all appeals c petitions therefrom. 6. Disputed Claims. This Agreemerit represents tf. settlement by ANDEN of Disputed claims and does not constitute ar admission of liability on the part of Anden, whic:h hereby express1 denies any such liability. 7. Aqreement Bindins on and Benefits Successors. Thj Agreement, and all the terms and provisions hereof, shall L binding upon and shall inure to the benefit of the parties ar 3 0 mi c their respective heirs, legal representatives, successors an assigns. 8. Governins Law. This Agreement shall be construe in accordance with and be governed by the laws of the State o California. 9. Severability. Should any portion, word, clause phrase, sentence or paragraph of this Agreement be declared void o unenforceable, such portion shall be considered independent an severable from the remainder, the validity of which shall remai unaffected. 10. Counterparts. This Agreement may be executed i multiple counterparts, each of which shall be considered a original but all of which shall constitute one agreement. 11. Entire Asreement. This Agreement constitutes th entire agreement between the parties and supersedes any and a1 other agreements, understandings, negotiations, or discussions either oral or in writing, express or implied, relative to th matters which are the subject of this Agreement. The partie hereto acknowledge that no representations, induc:ements, promises agreements or warranties, oral or otherwise, have been made by an party hereto, or anyone acting on their behalf, which are no embodied in this Agreement, that they have not executed thi Agreement in reliance on any such representation, inducement promise, agreement or warranty, and that no representation inducement, promise, agreement or warranty not contained in thi Agreement including, but not limited to, any purported supplements modifications, waivers or terminations of this Agreement shall k valid or binding unless executed in writing by all of the parties 4 ab 0. 12. No Implied Waiver. Failure to insist on complianc with any term, covenant or condition contained in this Agreemen shall not be deemed a waiver of that term, covenant or condition nor shall any waiver or relinquishment of any right or powe contained in this Agreement at any one time or more times be deeme a waiver or relinquishment of any right or power at any other tim or times. 13. Construction. The parties to this Agreement, an each of them, acknowledge (i) this Agreement and its reduction t final written form is the result of good faith negotiations betwee the parties through their respective counsel, (ii) said counse have carefully reviewed and examined this Agreement befor execution by said parties, or any of them, and (i.li) any statute o rule of construction that ambiguities are to be resolved agains the drafting party shall not be employed in the interpretation o this Agreement. 14. Warranty of Authority. Each party whose signatur is affixed hereto in a representative capacity represents an warrants that such party is authorized to execute this Agreement c behalf of and to bind the entity on whose behalf such party' signature is affixed. The City of Carlsbad has authorized its /// /// /// /// /// /// /// 5 - c a' e Mayor, Claude A. Lewis, to sign this Agreement pursuant to City o Carlsbad Resolution No. 92-315 dated October 20, 1992 15. Incorporation of Recitals. The foregoing RECITAL are expressly made a part of this Agreement. IN WITNESS WHEREOF, the undersigned htwe executed thi Settlement Agreement and Mutual General Release on the dates se forth hereinafter. THE ANDEN GROUP, a California Limite Partnership, by: EDEN PARTNERS, a Californi Limited Partnership, Managin Partner by: ESR CORPORATION, California corporation General Partner DATED: $?/' y i"s L by: 6 DATED: /o/2.2/9d by & Michael C. Roston, Authorized F CITY OF CARLSBAD 1, Mayor 6