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Home My WebLink About2006-09-12; City Council; 18716; Reporting terms and conditions of settlementCITY OF CARLSBAD - AGENDA BILL 11 AB# MTG. DEPT. 18,716 9/12/06 CA REPORTING OUT THE TERMS AND CONDITIONS OF THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN THE CHILDREN'S DISCOVERY MUSEUM OF NORTH SAN DIEGO COUNTY DEPT. HEAD CITY .^ ATTY. (3% CITY MGRn$V> RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: The parties have now settled this lease issue under the authority given to the City Attorney by the City Council at its closed session on August 1, 2006, and the parties have settled this issue. This item satisfies the Brown Act requirement to report the fact of a settlement of a claim approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. FISCAL IMPACT: The City agrees to waive its right to collect rent in arrears of $25,595.91 in return for indemnity, waiver and immediate possession. EXHIBITS: Mutual Release and Agreement DEPARTMENT CONTACT: Ronald R. Ball, 760-434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Council Accepted the Report. MUTUAL RELEASE AND AGREEMENT This MUTUAL RELEASE AND AGREEMENT is entered into between CITY OF CARLSBAD and CARLSBAD REDEVELOPMENT AGENCY (hereinafter collectively referred to as CARLSBAD), and CHILDREN'S DISCOVERY MUSEUM OF NORTH SAN DIEGO COUNTY and CATHY BULLOCK, BOARD PRESIDENT, (hereinafter collectively referred to as the CHILDREN'S DISCOVERY MUSEUM) (all of the aforementioned parties hereinafter collectively referred to as the PARTIES). 1. INTRODUCTION The subject matter of this MUTUAL RELEASE AND AGREEMENT is the tenancy of the CHILDREN'S DISCOVERY MUSEUM at 2787 State Street, Carlsbad, California, which property is owned by the City of Carlsbad, hereinafter the ACTION. The subject of the ACTION is the tenant defaulted on the rental property lease in the total amount of $25,595.91 to date. By this MUTUAL RELEASE AND AGREEMENT, the PARTIES desire and intend to settle the above-described breach between themselves and effect a final settlement and resolution of all existing and potential CLAIMS, as defined below. 2. NO ADMISSION OF LIABILITY In making this SETTLEMENT AND MUTUAL RELEASE AGREEMENT, no party hereto is admitting the sufficiency of any claims, allegations, assertions, contentions, or positions of any other party, nor the sufficiency of any defense to such claims, allegations, assertions, contentions, or positions. The acceptance and execution of this SETTLEMENT AND MUTUAL RELEASE AGREEMENT shall not constitute an admission of liability by or on behalf of the PARTIES by whom liability is Page 1 of 6 expressly denied. The PARTIES to this MUTUAL RELEASE AND AGREEMENT desire to resolve the ACTION in an amicable fashion and pursuant to Code of Civil Procedure section 877, et seq., the PARTIES have entered into the MUTUAL RELEASE AND AGREEMENT in good faith and with the desire to forever settle between them the ACTION and to execute a release as set forth in paragraph 6 herein below. 3. DEFINITIONS As used in this MUTUAL RELEASE AND AGREEMENT, the following words, terms, and phrases have the meanings stated in the following paragraphs below: a. ASSOCIATED ENTITIES AND PERSONS: Associated entities and persons shall include, to the broadest extent allowed by law, all present and former spouses, heirs, devisees, legatees, executors, administrators, representatives, agents, transferees, assigns, subrogees, grantees, indemnitees/indemnitors, predecessors, successors, sister corporations, parent corporations, subsidiaries, affiliates, divisions, directors, officers, shareholders, employees, partners, co-adventurers, predecessors, partnerships, successor partnerships, associates, insurers and attorneys. b. CLAIMS: Claims shall include, to the broadest extent allowed by law, all claims, rights, demands, liabilities, obligations, actions, suits, liens, debts, causes of action, all of which may/or are either asserted, unasserted, known, unknown, contingent, accrued, inchoate, suspected, unsuspected, or otherwise. c. COSTS: Costs shall include all costs, losses, liabilities, damages, detriments, expenses, fees, attorneys' fees, lien, and interest which is or may be actual, asserted, present or prospective. Page 2 of 6 3 4. AGREEMENT The consideration for this MUTUAL RELEASE AND AGREEMENT is: a) The CHILDREN'S DISCOVERY MUSEUM has surrendered possession of the property and agrees to leave the premises clean, neat and tidy, reasonable wear and tear excepted, or pay the expenses thereof; b) The CHILDREN'S DISCOVERY MUSEUM'S will pay any and all bills or indebtedness to third parties incurred as a result of its tenancy. CARLSBAD waives all unpaid rent and the fee for early termination of the lease as provided for in paragraph 4 of the lease. Each party is to bear its own attorney's fees and costs; c) The CHILDREN'S DISCOVERY MUSEUM agrees to defend, indemnify, and hold harmless CARLSBAD, its officers and employees, from liability, damage, cost and expense of any kind, including reasonable attorney's fees, arising from all claims or causes of action of any kind resulting directly or indirectly from the tenancy. d) The lease dated September 5, 2003 for the property at 2787 State Street, Carlsbad, California entered into between the CHILDREN'S DISCOVERY MUSEUM and CARLSBAD shall be terminated upon execution of this MUTUAL RELEASE AND AGREEMENT by both parties. 5. RELEASE The PARTIES and their respective associated entities and persons agree to fully and forever release, acquit and discharge each other and their associated entities and persons from any and all claims and costs that arise from, either directly or indirectly, or which are related to, or connected with, or caused by any act or omission Page 3 of 6 of the other, including the following: a. The facts, circumstances, and allegations as set forth in the ACTION; and b. Facts, circumstances, allegations, and/or issues raised or which might have been raised in the ACTION. This MUTUAL RELEASE AND AGREEMENT is intended to apply to any and all rights, claims, costs, or other damages of any kind, whether known or unknown resulting from death, personal injury, property damage, economic damage, emotional distress, loss of consortium or otherwise. It is understood and agreed that this MUTUAL RELEASE AND AGREEMENT extends to and includes any and all damages, injuries, claims and costs that are not anticipated or known, or suspected to exist, and to any and all claims which may develop in the future AND ANY AND ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 ARE HEREBY EXPRESSLY WAIVED. That code section provides: 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. 6. GENERAL PROVISIONS This MUTUAL RELEASE AND AGREEMENT shall be and is hereby binding upon and shall inure to the benefit of any heirs, administrators, successors, and their respective associated entities and persons. This MUTUAL RELEASE AND AGREEMENT shall be construed and enforced under laws of the State of California in effect at the time of its execution. Page 4 of 6 This MUTUAL RELEASE AND AGREEMENT may be executed in counterpart. Each PARTY to this MUTUAL RELEASE AND AGREEMENT hereby represents and warrants that the persons signing the Agreement on its behalf has the authority to do so. Each PARTY to this MUTUAL RELEASE AND AGREEMENT has executed the MUTUAL RELEASE AND AGREEMENT without any duress or undue influence on the part of or on behalf of any of them and after independent legal advice with respect to this Agreement. This MUTUAL RELEASE AND AGREEMENT memorializes and constitutes the final expression in the complete and exclusive statement of the agreement and understanding among and between the PARTIES and it supersedes and replaces any and all prior negotiations, proposed agreements, and/or unwritten agreements. 7. TIME IS OF THE ESSENCE Time is of the essence of each and all of the terms and provisions of this Agreement. 8. NOTICES Notices given or to be given by City or Tenant to the other may be personally served upon City or Tenant or any person hereafter authorized by either in writing to receive such notice or may be served by certified letter addressed to the appropriate address hereinafter set forth or to such other address as City and Tenant may hereafter designate by written notice. If served by certified mail, forty-eight (48) Page 5 of 6 hours after deposit in the U.S. Mail, service will be considered completed and binding on the party served. TO TENANT Children's Discovery Museum Of North San Diego County c/o Beth Eagleson, Esq. P.O. Box 518 San Clemente, CA 02674-0518 TO CITY Housing and Redevelopment Director Carlsbad Redevelopment Agency 2965 Roosevelt Street, Suite B Carlsbad, CA. 92008 CHILDREN'S DISCOVERY MUSEUM CITY OF/CARLSBAD, a municipj OF NORTH SAN DIEGO COUNTY of the SlattfftCaliforr (print name) By:. (sigrvfTere) Dated: tfE A. LE\^IS;M&yor Dated: JOVED AS TO FORM: R. BALL, City Attorney Dated: •ation Page 6 of 6