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Home My WebLink About2007-04-17; Housing & Redevelopment Commission; 398; Reporting terms of settlement: Le Muse RetailHOUSING AND REDEVELOPMENT COMMISSION - AGENDA BILL 398AB# MTG. 4/17/07 DEPT. HRED Title REPORTING OUT THE TERMS AND CONDITIONS OF SETTLEMENT AS REQUIRED BY THE BROWN ACT FOR THE LE MUSE RETAIL STORE DEPT. HEAD (&JQ CITYATTY. <§S CITY MGR. RECOMMENDED ACTION: There is no action the Commission needs to take. ITEM EXPLANATION: The parties have now settled this lease issue under the authority given to the City Attorney, acting as legal counsel for the Carlsbad Redevelopment Agency, at is closed session on March 13, 2007, 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 a penalty fee of $25,000 for early termination of the subject lease agreement in return for indemnity, waiver and immediate possession of the subject property. EXHIBITS: Mutual Release and Agreement DEPARTMENT CONTACT: Debbie Fountain 760-434-2815 dfoun@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COMMISSION ACTION: APPROVED % DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES 0 MUTUAL RELEASE AND AGREEMENT This MUTUAL RELEASE AND AGREEMENT is entered into between CARLSBAD REDEVELOPMENT AGENCY (hereinafter referred to as AGENCY), and LE MUSE (hereafter referred to as TENANT) (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 TENANT at 2787 State Street, Carlsbad, California, which property is owned by the Agency, hereinafter the ACTION. The subject of the ACTION is the tenant's request for early termination of the property lease without the required 180 day prior notice and waiver of the $25,000 early termination penalty. By this MUTUAL RELEASE AND AGREEMENT, the PARTIES desire, and the AGENCY intends to allow for, early termination of the property lease without the required 180 day prior notice and waiver of the $25,000 early termination penalty, 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 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. 4. AGREEMENT The consideration for this MUTUAL RELEASE AND AGREEMENT is: a) TENANT has paid all rent due and 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, within thirty (30) days of execution of this Agreement; b) TENANT will pay any and all bills or indebtedness to third parties incurred as a result of its tenancy. AGENCY waives 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) TENANT agrees to defend, indemnify, and hold harmless the Agency, 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 AGENCY shall return the deposit paid by TENANT after all appropriate charges are deducted from said deposit. e) The assigned lease dated June 6, 2005 for the property at 2787 State Street, Carlsbad, California entered into between TENANT and the AGENCY 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 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. 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 thi-s 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 AGENCY or TENANT to the other may be personally served upon AGENCY 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 AGENCY and TENANT may hereafter designate by written notice. If served by certified mail, forty-eight (48) hours after deposit in the U.S. Mail, service will be considered completed and binding on the party served. TO TENANT Le Muse c/o Darlah Mulloy 1441 La Loma Drive San Marcos, Ca. 92078 TO AGENCY Housing and Redevelopment Director Carlsbad Redevelopment Agency 2965 Roosevelt Street, Suite B Carlsbad, Ca. 92008 LE MUSE, A SOLE PROPRIETOR AGENCY, A OLITIC RONALD R. BALL, Agency Legal Counsel Dated: ATTEST: RAYMOND, R. FATCHETT, Secretary LISA HILDABRAND, Assistant Secretary