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Home My WebLink About1992-10-20; City Council; 11933; APPROVAL OF SETTLEMENT AGREEMENT FOR CT 85-05, UNITS 1-3, SANTA FE KNOLLS, THE ANDEN GROUP BOND AND IMPROVEMENT AGREEMENT CLAIMS3 < a Id 8 (5 ';s oc a a .. z 0 6 $ a z 3 0 0 I/iJi u I ur WMLWAD - AGENW BILL DEPT. ENG c1n AB# 11; 933 TITLE: APPROVAL OF SETTLEMENT AGREEMENT FOR DEP MTG. 10-AU-92 CT85-05, UNITS 1-3, SANTA FE KNOLLS, THE ANDEN GROUP c1n BOND AND IMPROVEMENT AGREEMENT CLAIMS RECOMMENDED ACTION: It is recommended that the City Council authorize settlement of this c adopting Resolution No.92-315 authorizing the Mayor to execute the Rele Agreement, directing the City Clerk to release related improvement bon authorizing inclusion of the settlement monies into the Utilities & Main Department construction budget. ITEM EXPLANATION: A dispute between The Anden Group, developer of the subdivision known as 5 Knolls, and the City arose when the City notified The Anden Group of de pub1 ic improvements in the subdivision. After settlement proposals from bot were considered and negotiated, the developer agreed to pay the City $19, check for this amount has been received by the City and is being held Council's approval of the Release and Agreement. Upon approval by Counc corresponding improvement bonds shall be fully exonerated. FISCAL IMPACT : Expenditures of staff time only. It is recommended that the full amount settlement be added to the Util ities & Maintenance Department construction to fund necessary repairs to existing improvements in this subdivision. EXHIBITS: 1. Location Map. 2. Resolution No. 72-3/5 , authorizing the Mayor to execute the Rele, Agreement, directing the City Clerk to release related bond: authorizing the Finance Director to deposit the settlement monies ii Util ities 8. Maintenance Department construction budget. 3. Settlement Release and Agreement. c 3 W I LOCATION MAP @ + 5% +o oT c,Q- LA COST4 AVE OFF SITE / \ -- p - -=-\I q UNITS I 1 3,4,5 3 1 LA COSTA AV @ 3 CITY Ll MI TS -..-. L -- C4&, 05.' ??! \%' DE .:/ 'I COUNTY '-. /L ("NIT 1 %NIT 2 I -. ! PROJ. NO. PROJECT NAME: CT 85-05 SANTA FE KNOLLS 31 P ",,,I I ' +< 1 2 3 4 5 6 7 a 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 z3 24 25 26 27 28 0 W RESOLUTION NO. 92-315 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE THE RELEASE AND AGREEMENT BETWEEN THE ANDEN GROUP AND THE CITY OF CARLSBAD WHEREAS, on recommendation of the City Attorney the City Counc City of Carlsbad, California has determined that a settlement agreeme matter of The Anden Group is in the public interest: and WHEREAS, no funds will be necessary to settle this matter, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 1 California, as follows: 1. That the above recitations are true and correct. 2. The Mayor of the City of Carlsbad is hereby authorized and to execute the Release and Agreement. 3. The City Clerk of the City of Carlsbad is hereby directed t and exonerate all bonds with respect to the subdivision known as Santa F Carlsbad Tract 85-05 Unit 1, Unit 2, Unit 3 and Mission Estancia, as s in the Release and Agreement. //// //// //// //// //// //// //// //// ///I //// //// + 7. 1 2 3 4 5 6 7 8 9 10 11 I.2 13 14 15 16 1'7 18 19 20 21 22 23 24 25 26 27 28 - 0 4. The Finance Director is hereby authorized to place the settlement into the Uti1 ities & Maintenance Department construction bi repairs to existing improvements in this subdivision. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carl! , 1992 by the follow Council held on the 20th day of OCTOBER to wit: AYES: Council Members Lewis, Kulchin, Larson, Stanton, Nygaard NOES: None ABSENT: None ATTEST: ALETHA 1. RAUiIK (SEAL) d-.&tLL ___j' w _" .. RELEASE & AGREEMENT In consideration of the mutual covenants and agreernenf contained herein, and good and valuable consideration, a1 intending to be legally bound, the parties hereto, THE ANDEN GROUl a California limited partnership (llANDFN1g) and THE CITY OF CARLSBI (I1CITYt1) agree as follows: 1. Monetary Settlement. ANDEN shall pay to CITY tl total sum of Nineteen Thousand, Three Hundred Dollars ($19,300.0( via a check for certified funds, delivered to counsel for CITY i the following address: Ronald R. Ball, Esq. City Attorney City of Carlsbad 1200 Carlsbad Villacge Drive Carlsbad, CA 92008-1989 CITY will not negotiate the c:ertified check until this Agreeme has been approved by the City Council. 2. Release and Exoneration of the Bonds. CITY here releases and exonerates all Bonds provided to CITY with respect that certain residential houshg project of ANDEN commonly known Santa Fe Knolls Project, including Unit No. 1, Unit No. 2, Unit N 3 and Mission Estancia, including but not limited to the followi Bonds: a. Warranty Eiond No. ICB010687; b. Warranty Bond No. ICB010729; c. Warranty E3ond No. ICB010690; d. Warranty E3ond No. ICB010867; and e. Waiver and Materials Bond No. ICB010867. 1 U" e--- ** CITY shall prepare, execute and deliver such addition2 documentation as shall be reasonably necessary to effectuate tk release and exoneration of these Bonds. 3. Mutual and General Releases. For and : consideration of the execution i- Ad delivery of the Agreement ai the documents referred to herein, and of the mutual promist contained in this Agreement, ANDEN and City, hereby releast acquit, relieve and forever discharge each other and each of the. respective predecessors, successors, heirs, assigns, employee: officers, directors, investors, shareholders, partner: partnerships, joint venturers, joint ventures, trusts, agent: representatives, consultants, attorneys, benefit plans, parei corporations, subsidiaries, divisions or affiliated entitie corporations or organizations, whether previously or hereinaft affiliated in any manner, from any and all claims, rights, action complaints, demands, causes of action (at law or in equity), suit debts, indemnity or hold harmless obligations, liens, contract agreements, promises I liabilities, claims I demands, damage losses, costs or expenses of any nature whatsoever, whether kno or unknown, fixed or contingent, (collectively llclaimslt) which t parties now have or may hereafter have arising from any matter, a or omission from the beginning of time to the last execution da of this Agreement arising from or relating to the Santa Fe Knol Project in general, and specifically including any such clai arising from or relating to any Subdivision Agreements executi between ANDEN and CITY with respect to the Project and the Bon ("Released Claims1') 2 e w .. 4. Waiver of Civil Code Section 1542. The parties hereto expressly waive and relinquish all rights and benefits the) may have under Section 1542 of the Civil Code of the State oj California, with respect to the Released Claims. That sectioi reads as follows: It§ 1542. [Certain claims not affected bv qeneral 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, thc 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 fro] 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 action suit or other proceeding, including any and all appeals o petitions therefrom. l 6. Disputed Claims. This Agreement represents th settlement by ANDEN of Disputed claims and does not constitute an admission of liability on the part of Anden, which hereby express1 denies any such liability. 7. Aqreement Bindincr on and Benefits Successors. Thi Agreement, and all the terms and provisions hereof, shall b binding upon and shall inure to the benefit of the parties an 3 w _.’ e their respective heirs, legal representatives, successors ar assigns. 8. Governins Law. This Agreement shall be construc in accordance with and be governed by the laws of the State c California. 9. Severability. Should any portion, word, claust phrase, sentence or paragraph of this Agreement be declared void ( unenforceable, such portion shall be considered independent ai severable from the remainder, the validity of which shall rema unaffected. 10. Counterparts. This Agreement may be executed multiple counterparts, each of which shall be considered ( original but all of which shall constitute one agreement. 11. Entire Aqreement. This Agreement constitutes tl entire agreement between the parties and supersedes any and a other agreements, understandings, negotiations, or discussion either oral or in writing, express or implied, relative to t matters which are the subject of this Agreement. The parti hereto acknowledge that no representations, inducements, promise agreements or warranties, oral or otherwise, have been made by a party hereto, or anyone acting on their behalf, which are n embodied in this Agreement, that they have not executed th Agreement in reliance on any such representation, inducemen promise, agreement or warranty, and that no representatio inducement, promise, agreement or warranty not contained in th Agreement including, but not limited to, any purported supplement modifications, waivers or terminations of this Agreement shall valid or binding unless executed in writing by all of the partie I 4 .-- w./ 12. No Implied Waiver. Failure to insist on complianc with any term, covenant or condition contained in this Agreemer shall not be deemed a waiver of that term, covenant or conditior nor shall any waiver or relinquishment of any right or pow€ contained in this Agreement at any one time or more times be deemc a waiver or relinquishment of any right or power at any other tin or times. 13. Construction. The parties to this Agreement, ax each of them, acknowledge (i) this Agreement and its reduction t final written form is the result of good faith negotiations betwec the parties through their respective counsel, (ii) said counsc have carefully reviewed and examined this Agreement befoi execution by said parties, or any of them, and (iii) any statute ( rule of construction that ambiguities are to be resolved again: the drafting party shall not be employed in the interpretation ( this Agreement. 14. Warranty of Authority. Each party whose signatui is affixed hereto in a representative capacity represents ai warrants that such party is authorized to execute this Agreement ( behalf of and to bind the entity on whose behalf such party signature is affixed. The City of Carlsbad has authorized its /// /// /// /// /// /// /// 5 * - e I+ Mayor, Claude A. Lewis, to sign this Agreement pursuant to City oJ 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 have executed thi! Settlement Agreement and Mutual General Release on the dates sel forth hereinafter. THE ANDEN GROUP, a California Limitec Partnership, by: EDEN PARTNERS, a Californil Limited Partnership, Managin1 Partner by: ESR CORPORATION, California corporation General Partner DATED: pj31pj2- I by: -5?! Michael C. Roston, Authorized A CITY OF CARLSBAD DATED: /o/z-?/?d by I 6 I October 29, 1992 Mr. Michael Roston THE ANDEN GROUP 1061 Borden Rd., Suite 105 Escondido, CA 92026 RE: BOND RELEASE - CT 85-5, UNITS 1, 2, AND 3 - SANTA FE KNOLLS In accordance with the provisions of the settlement agreement for bond and improvei agreement claims which was approved by the Carlsbad City Council on October 20,l we are hereby releasing the following bonds for the above-referenced subdivision: Faithful Performance Bond No. ICB010687 (Warranty); Unit No. 1 Integrity Insurance Co. Faithful Performance Bond No. ICB010690 (Warranty); Unit No. 2 Integrity Insurance Co. Faithful Performance Bond No. ICB010867 (Warranty); Unit No. 3 Integrity Insurance Co. Labor & Materials Bond No. ICB010867 Unit No. 3; Integrity Insurance Co. - These bonds are enclosed so that you may return them to your surety. 1200 Carlsbad Village Drive - Carlsbad, California 92008-1 989 - (61 9) 43< 0 0 Mr. Michael Roston THE ANDEN GROUP October 29, 1992 Page 2 r' . Our records show that Faithful Performance Bond No. ICB010729 (Warranty) for CT 85 Unit No. 1, was released on January 6, 1992. Enclosed is a copy of the letter wh released the bond at that time. &J& Assistant City Clerk Encs. c: Ron Ball, City Attorney Yvonne, Engineering Dept. -