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SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release is made a entered effective October 8, 1990, by and between Winds Projects, Inc., a California corporation (hereinafter referred as ttWindsorgg), and The City of Carlsbad, a Municipal corporati (hereinafter referred to as ggCitygs) D
RECITALS
A. On or about October 1, 31986, Windsor purchased fr McKellar Development of La Jolla certain real property located the City of Carlsbad, County of San Diego, State of Californ
(the tgpropertytl) more particularly described as follows:
PARCEL 1:
Lots 104 through 110, 112 through 119 and 124 through 129, of Carlsbad Tract 77-2 TJnit No.
4, in the City of Carlsbad, County of San Diego, State of California, accordiny to Map thereof No. 10054, filed in the Office of the County Recorder of San Diego County, April 6,
1981.
PARCEL 2:
Lots 130 through 143, of Carlsbad Tract 77-2 Unit No. 5, in the City of Carlsbad, County
of San Diego, State of California, according to Map No. 10088, filed in the Office of the
County Recorder of San Diego County, May 12,
1981.
B. On or about October 30, 1986, Windsor entered into agreement with the City entitled IIAgreement to Pay Fees Facilities and Improvements as Required by Growth Manageme Systemgg which Agreement was recorded on November 20, 1986 Document No. 86-537017 in the official records of San Die
County, California as a lien against the property.
C. On or about January 5, 1987, City sent an invoice
Windsor for Public Facility Fees in the amount of $35,261.1
Thereafter, a dispute arose regarding the payment of said fees 2 the parties agreed that pending resolution of said dispute, t
sum of $35,261.11 would be held in escrow no, 961131T at Fir
American Title Insurance Company, 411 Ivy Street, San Die<
California.
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D. On or about October 22, 1987, Windsor and City enterc into a Letter Agreement (the "Letter Agreement") wherein Windsc agreed to construct certain improvements on or adjacent to tl
real property and deposited with City the sum of $25,000.00 cat as security for the performance of said work. A copy of sa: Letter Agreement and addendum thereto is attached hereto i Exhibit lgA1l and incorporated herein by reference .
E. On September 7, 1988, Windsor, as plaintiff, filed complaint in the Superior Court of the State of California, Coun of San Diego, North County Judicial District, as Case No. N4142' naming as defendants City and Does 1 through 50, inclusive. T! Complaint sets forth five causes of action for Damages For Failu To Discharge Mandatory Duty [Govt. Code 5815.61; Breach ' Contract; Rescission; Conversion; and Declaratory Relief.
The above-mentioned parties dispute their respecti. rights and liabilities arising out of and relating to all clai. and other matters set forth in the aforementioned agreements a complaint, and desire to compromise and settle same;
NOW, THEREFORE, in consideration of the terms set for below and the mutual covenants hereinafter set forth, the parti hereto agree as follows:
1. Settlement.
(a) City shall execute and record in the offici records of San Diego County, California, a waiver and release all claim and right of lien against the Windsor real property f the payment of public facilities fees, including, but not limit to, specific releases for the agreements entitled "Agreeme Between Owner, Developer and City of Carlsbad :For The Payment a Public Facilities Fee Executed. by and Between McKell Development of La Jolla, Genstar Development, Inc. (Broadmo Homes Division) and the City of CarlsbadI1 recorded October 2
1983 as file no. 83-391118 of the official records of San Die County, California and the agreemen-t entitled #!Agreement to P Fees for Facilities and Improvements as Required by Grow Management System" dated October 30, 1986, executed by and betwe Windsor Projects, Inc. and the City of Carlsbad, recorded Novemb
20, 1986 as file no. 86-537017 of the official records of S
Diego County, California.
(b) City shall execute escrow inst.ructions to Fir American Title Insurance Company, 411 Ivy Street, San Dies California regarding escrow no. 961131T instructing said escr company that the above-referenced agreements regarding the payme of public facilities fees have been released and authorizing Fir
American Title Insurance Company and/or such other institutic where said funds have been deposited, to release the sum
$35,261.11 together with accrued interest to Windsor.
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(c) The City, immediately upon execution of th. agreement , shall release to Windsor the $25 , 000.00 cash depos.
together with accrued interest which was posted for security fc
the performance of work described in the Letter Agreement.
(d) City shall waive Windsor's obligation to comp:
with the addendum to the Letter Agreement regarding sewc
cleanouts.
City agrees to cooperate with Windsor in its effo to seek reimbursement from McKellar for improvements it w(
required to make at Los Arboles which Windsor contends were t:
obligation of McKellar. Said cooperation of the City is limit1
to making its files and personnel reasonably available to provij Windsor with relevant information relating to the disput Windsor acknowledges that the City takes no position relating the merits of its claim against McKellar.
(e)
(f) Except as expressly stated in this Agreement, ea
party hereto is to bear their respective attorney fees and cost
2. Dismissal of Causes of Action.
Upon execution and delivery of this Agreement, t parties hereto will forthwith cause their attorneys of record execute and file in the Superior Court a "Request for Dismissa with prejudice of all actions referenced above as to all parti
to this Agreement.
3. General Release of Known and Unknown Claims.
(a) Notwithstanding the provisions of Section 1542
the California Civil Code, excepting the covenants, agreement
stipulations and provisions contained in this Settlement Agreeme
and Mutual Release, the parties hereto mutually release any a
all claims, causes of action, rights, obligations, debt liabilities, accounts,, liens, damages (whether general, speci consequential, punitive or otherwise) , losses and expenses of a kind and nature whatsoever, whether known or unknown, foreseen unforeseen, patent or latent, suspected or unsuspected, continge or unliquidated, which any party previously had, currently has may have, arising from, relating to or in any manner connect with, directly or indirectly, the facts and matters set forth the aforementioned recitals and civil complaint.
The parties hereto acknowledge that they each ha been informed of the provisions of Section 1542 of the Civil Cc of the State of California and do hereby expressly waive a relinquish all rights and benefits that they have or may have h under said Section, which read as follows:
(b)
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"A general release does not extend to claj-ms 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. I'
(c) The parties hereto understand arid acknowledge tl significance and consequences of said specific waiver of Sectii
1542, and hereby assume full responsibility for any injurie damages or losses that they may incur as a result of the executi of this Settlement Agreement and Mutual Release.
Subsequent Discovery and Different or Additional Facts
Mistake of Fact of Law
(a)
4.
The parties hereto aclcnowledge that they are awa that they may hereafter discover facts different from or addition to those they now know or believe to be true with respe to the claims, causes of action, rights, obligations, debt liabilities, accounts, liens, damages, losses and expenses here released, and each agrees that the within release shall be a remain in effect in all respects as a complete and general relea as to all matters released herein, notwithstanding any su
different or additional facts.
(b) In entering and making this Agreement, the parti hereto assume the risk of any mistake of fact or of law in th
if any party should subsequently discover that any fact reli
upon by such party in entering into this Agreement is not tru or that such party's understanding of the facts or law w incorrect, such party shall not be entitled to set aside th Agreement, or any portion thereof, by reason thereof. Th Agreement is intended to be final and binding upon all parti hereto regardless of any mistake of law or of fact or any 0th circumstance whatsoever.
5. Covenant Not to Sue.
The parties hereto each agree that each will not mak assert or maintain against any other party released in tk Agreement any claim, demand, action, suit or proceeding arisi out of or in connection with the matters respectively releas
herein. This Agreement may be pleaded as a full and comple
defense to, and may be used as a basis for an injunction agair any action, suit or other proceeding which may be prosecute
instituted or attempted by or on behalf of any party hereto
breach of this Agreement. The parties hereto each agree
defend, indemnify and hold one another harmless against any claj
demand, right, damage, debt, liability, account, action, cause
action, cost or expense, including attorneys' fees actually pz
or incurred, arising out of any such claim, demand, action, st
or proceeding asserted in connection with this Agreement or t
matters respectively released herein.
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6. Warranties .
(a) Each party hereto represents and warrants to tl
other that they have not heretofore assigned, hypothecated (
transferred or purported to assign, hypothecate or transfer, .
whole or in part, to any person, firan entity, or corporation ai
claim, demand, right, damage, liability, debt, account, actic
cause of action, or any other matter herein released (
discharged, and that they respectively have the full right ai
authority to enter into this Agreement. The parties hereto agrc to indemnify and hold one another harmless against any claii
demand, right, damage, debt, liability, account, action, cause
action, cost or expense, including attorneys' fees actually pa
or incurred, arising out of or in connection with any su
transfer or assignment or any such purported or claimed transf or assignment in violation of this representation and warranty
(b) Each party hereto represents and warrants to t other that they have the power, authority and ability to carry o the obligations assumed and promised hereunder, and is n presently aware of any pending event which would, or coul hamper, hinder, delay, or prevent the timely performance of sa obligations.
7. Denial of Liability.
The giving ofthe consideration specifiedherein affec the settlement of the matters released herein. Neither the givi of said consideration nor anything contained herein shall construed as an admission by any party to this Settleme Agreement and Mutual Release or their heirs, assigns, successor representatives, agents, officers, directors ox shareholders, the validity of the claims of any other party to this Settleme Agreement and Mutual Release. The parties hereto specifical
disclaim any liability or responsibility to each other.
8. Bindins Effect.
This Agreement, and all covenants and releases set for herein, shall be binding upon and shall inure to the benefit the respective parties hereto, their legal successors, heir assigns, partners, representatives, executors, administrator agents, attorneys, officers, directors and shareholders.
9. Choice of Law and Venue.
This Agreement is executed and intended to be perfom in the State of California and the laws of the State of Califorr shall govern its interpretation and effect. The parties agr that all legal proceedings regarding this Agreement shall only instituted in the U.S. District Court, Southern District
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California or the courts of the State of Califoirnia for San Die( County, San Diego Judicial District,
10. Lecral Emenses.
In the event any party to this Agreement commences a
legal proceeding concerning any aspect of this Agreemen including but not limited to, the interpretation or enforceme of any of its provisions or based on an alleged dispute, breac default, or misrepresentation in connection with any aspect provision of this Agreement, the prevailing party shall entitled to recover reasonable attorneys' fees and all other co and expenses incurred in connection with the action or proceedin
including without limitation, expert witness fees, court report fees and collection expenses, whether or not such action procee to judgment. The ''prevailing party'' means the party determin by the court to have most nearly prevailed, even if such party d not prevail in all matters, not necessarily the one in whose fav a judgment is rendered. If the court fails or refuses to make determination of the prevailing party, the party who is award costs of suit shall also be deemed to be the prevailing party f purposes of awarding attorneys' fees.
11. Severability.
Should any portion or clause of this Settleme
Agreement and Mutual Release be found to be invalid, illega void, voidable or unenforceable for any reason whatsoever, th Settlement Agreement and Mutual Release shall be read as if it d
not contain said portion or clause. The parties, hereto intend f any such invalid portion or clause to be severable from t
remainder. Any such clause or portion and its severance shall n
affect the validity or effect of the remaining provisions of th
Agreement.
12. Counterparts.
This Agreement may be executed in any number
counterparts, each of which so executed shall be deemed to be
original and such counterparts shall together constitute one a
the same Agreement.
13. Gender and Number.
In this document, where the context so requires, t
masculine, feminine or neuter gender shall be deemed to inclL each other, and the singular to include the plural.
14. Section Headincrs.
The captions, subject, section and paragraph headir
in this Agreement are included for convenience and reference on1
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They do not form a part hereof, and do not i:n any way modif
interpret, or reflect the intent of the parties. Said headin shall not be used to construe or interpret any provision of th
Agreement.
15. Riaht to Consult with Attorney, Terms Understood.
The parties hereto acknowledge that each has read th Settlement Agreement and Mutual Release; that each ful understands his rights, privileges and duties under sa Agreement; and that each enters into said Agreement freely a voluntarily. Each party further acknowledges that each has h
the opportunity to consult with an attorney of his choice
explain the terms of this Agreement and the consequences
signing it.
16. Reliance on Own Judsment, No Representations.
The parties hereby declare and represent that the fu
compensation for the damage sustained in connection with t
aforementioned losses and claims is uncertain and indefinite, a
that in making this release agreement it is understood and agre
that the parties rely wholly upon their own judgment, belie
knowledge as to the nature, extent and duration of said damage
The parties have not been influenced to any extent whatsoever
making this release by any representation or statement regardi
said damages, or regarding any other matter, made by the perso persons or entities hereby released, or by any person or perso representing them.
17. Entire Aareement.
The undersigned each acknowledge and represent that promise, representation, or inducement not contained in th
Agreement, or any exhibit hereto, has been made to them and th
this Agreement, together with any exhibits hereto, contains t
entire understanding between the parties and contains all ter
and conditions pertaining to the within compromise and settleme
of the disputes referenced herein. No express or impli
warranties, covenants or representations have been made concerni the subject matter of this Agreement unless expressly stat herein. Any prior written or oral negotiations not contained this Agreement are of no force or effect whatsoever. In executi this Agreement, the parties have not and do not rely on a statements, inducements, promises, or representations made by t other party or their agents, representatives, or attorneys wi regard to the subject matter, basis, or effect of this Agreemer
undersigned further acknowledge that the terms of this Agreeme
are contractual and not a mere recital.
except those specifically set forth in this Agreement. '5
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18. Modifications.
No change in, addition to, or erasure of a printc
portion of this Agreement (except the filling in of specific blar
spaces and lines) shall be valid or binding upon any party here1
and no verbal agreement of any nature relating to the subjec
matter of this Agreement or to any relationship between tf
parties will be considered valid or enforceable. This Agreemer may not be superseded, modified or amended orally and I modification, waiver or amendment shall be valid unless in writii and signed by the party against whom the same is sought to 1
enforced.
19. No Presumption auainst Drinftinu Party.
This Agreement and the provisions contained herein sha:
not be construed or interpreted for or against any party herel
because said party drafted or caused the party's leg:
representative to draft any of these provisions. This Agreemei
shall be construed without reference to the identity of the pari
or parties preparing the same, it being expressly understood ai
agreed that the parties hereto participated equally or had ewi
opportunity to participate in the drafting thereof.
20. Parties in Interest.
Nothing in this Agreement, whether express or impliec
is intended to confer any rights or remedies under or arising 1
reason of this Agreement on any persons other than the parties.
it and their respective successors and permitted assignee: Nothing in this Agreement is intended to relieve or discharge tl obligation or liability of any third person to any party to th Agreement, nor shall any provision give any third person any rig1 of subrogation or action over or against any party to th
Agreement.
21. Waiver.
The failure of either party to enforce any provision
this Agreement shall not be construed as a waiver of any su provision, nor prevent such party thereafter from enforcing su provision or any other provision of this Agreement. The righ and remedies granted all parties herein are cumulative and t
election of one right or remedy shall not constitute a waiver
such party's right to assert all other legal remedies availab
under this Agreement or otherwise provided by ILaw.
22. Execution of Further Documents.
Each party agrees, upon the demand of the other,
execute or deliver any instrument, furnish any information,
perform any other act reasonably necessary to carry out t
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provisions of this Agreement without undue delay or expense. In the event either party fails or refuses to comply with this
paragraph, such party shall reimburse the other party for any expenses, including attorneys' fees and court costs, that as a
result of this failure become reasonably necessary to carry out this Agreement, even if formal legal action is not commenced.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first indicated above.
WINDSOR PROJECTS, INC.
By:
APPROVED AS TO FORM:
SPARBER, FERGUSON, NAUMANN, PONDER & RYAN
W' &or Projects, f Inc.
DALEY & HEFT
Y+- yJ@.Q J- , 3, q+--jL~4
Neal S. Meyers, AtQ$$neys for The City of Carlsbad