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HomeMy WebLinkAboutContracts & Agreements_169B-2003_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement(hereinafter"AGREEMENT") is entered into by and between Petitioner the CITY OF REDLANDS, Respondent COURTNEY DISCENZA ("RESPONDENT"),and Buyer XAN CASTELLO("BUYER")in connection with the settlement of San Bernardino Superior Court Case No. SCVSS 095981 ("Case No. SCVSS 095981"). The previously noted parties are sometimes referred to herein as the "PARTIES." RECITALS A. On or about August 9, 2002, the CITY OF REDLANDS recorded a Notice of Pendency of Administrative Proceeding with the San Bernardino County Recorder regarding certain real property located at 1121 Post Street, Redlands, California 92374 (the "SUBJECT PROPERTY") as a result of its administrative action arising out of numerous violations of the Redlands Municipal Code existing on the SUBJECT PROPERTY. B. Subsequently, on or about December 18, 2002, the CITY OF REDLANDS filed a First Amended Petition for Appointment of a Receiver and For Other Relief Pursuant to Health and Safety Code Section 17980.7,Case No.SCVSS 095981,regarding the SUBJECT PROPERTY and recorded a Notice of Pendency of Action for Case No. SCVSS 095981 with the San Bernardino County Recorder. SACRAIMENTOTOR5858 Page 1 of 10 C. The RESPONDENT represents that the SUBJECT PROPERTY is being sold to BUYER and escrow is currently pending. RESPONDENT requests that the CITY OF REDLANDS dismiss Case No.SCVSS 095981 without prejudice and in its entirety as it relates to RESPONDENT so that RESPONDENT may sell the SUBJECT PROPERTY to BUYER free and clear of all liens and encumbrances. D. The BUYER requests that the CITY OF REDLANDS release the Notice of Pendency of Administrative Proceeding, and the Notice of Pendency of Action from title to the SUBJECT PROPERTY, so that BUYER can close escrow and purchase the SUBJECT PROPERTY from the RESPONDENT free and clear of all liens and encumbrances. E. It is the intention ofthe PARTIES to resolve and settle their disputes and to discharge all claims, demands, causes of action, obligations, damages, and liabilities both parties may have against the other that arise from or are related to Case No. SCVSS 095981. F. This AGREEMENT is a compromise of the claims and liabilities asserted by the PARTIES and shall not be treated as an admission of liability by any party. SACC MEN TOTOR5858 Page 2 of 10 Z'1�1 AGREEMENT OF PARTIES NOW,THEREFORE, in consideration of the mutual covenants and conditions contained herein, the PARTIES agree as follows: 1. The PARTIES acknowledge that the recitals are true and correct and incorporate by reference those recitals into this AGREEMENT. 2, BUYER and RESPONDENT shall pay CITY OF REDLANDS the aggregate sum of$7,500.00. Such sum shall be due and payable at the close of escrow. The payment of such sum shall be complete upon the presentation of a valid check made payable to CITY OF REDLANDS in the amount of$7,500.00. 3. BUYER and RESPONDENT shall pay the Receiver, Steven M. Speier, appointed by the Court in Case No. SCVSS 095981 the aggregate sum of$2,102.41. Such sum shall be due and payable at the close of escrow. The payment of such sum shall be complete upon the presentation of a valid check made payable to Steven M. Speier in the amount of$2,102.41. 4. BUYER and RESPONDENT agree to repair, or cause to be repaired, each of the items listed on the City's Notice and Order to Repair,dated August 8,2002,("REPAIR ORDER") no later than sixty (60) days from the date of this AGREEMENT. The REPAIR ORDER is attached hereto as Exhibit "A" and incorporated herein by reference. SACRAIMENTOTOJ-6858 Page 3 of 10 5. BUYER and RESPONDENT further agree to comply with any and all actions, recommendations and/or decisions of the CITY OF REDLANDS with regard to the common areas for the SUBJECT PROPERTY, as defined in Final Tract Map Nos. 10141 and 10142, and the conditions of approval required by the CITY OF REDLANDS for such maps. BUYER and RESPONDENT are aware and understand that the actions, recommendations and/or decisions of the CITY OF REDLANDS with regard to the common areas are unknown and yet to be determined, but may include the creation of a Home Owner's Association ("HOA") to maintain the common areas. 6. Upon the execution of this AGREEMENT, the CITY OF REDLANDS agrees to execute and file a Request for Dismissal, dismissing Case No. SCVSS 095981 in its entirety and without prejudice RESPONDENT. CITY OF REDLANDS reserves the right to re-file this action against RESPONDENT in the event the terms and conditions of this AGREEMENT are breached. 7. REMOVAL OF THE NOTICES: Upon the execution of this AGREEMENT,the CITY OF REDLANDS agrees to record a Release of the Notice of Pendency of Administrative Proceeding and a Release of the Notice of Pendency of Action with regard to the SUBJECT PROPERTY. 8. The PARTIES shall bear their own attorneys' fees and costs incurred in connection with Case No. SCVSS 095981 and drafting and execution of this AGREEMENT. SACRAMENTOTOJk5858 Page4of 10 I 9. RESPONDENT on behalf of itself,its agents,representatives, attorneys,employees, servants, affiliates, stockholders, predecessors, successors and assigns, both past and present, and any person or entity acting by,through,under or in concert with each of them,do hereby release,and forever discharge the CITY OF REDLANDS and each of its, agents, representatives, partners, attorneys, employees, elected and non-elected officials, successors and assigns, both past and present, and any person or entity acting by, through, under or in concert with each of them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or equity,suits,debts,liens,contracts,agreements,promises,liabilities,claims,demands,obligations, rights, breaches of contract, breaches of duty of any relationship, acts, omissions, misfeasance, malfeasance, sums of money, compensation, accounts, contracts, controversies, promises, losses, damages, costs, attorneys' fees, expenses of any type, kind, nature, description, or character whatsoever, whether known or unknown, claimed or suspected, existing or contingent, and irrespective of how, why or by reason of what facts, or which the RESPONDENT now has, ever had, ever claimed to have had, or that hereafter could, might or may be claimed against CITY OF REDLANDS arising out of Case No. SCVSS 095981. 10. LIQUIDATED DAMAGES: The PARTIES agree that in the event of a breach by BUYER and RESPONDENT,damages incurred by the CITY OF REDLANDS,as a result of such breach, would be difficult to calculate. Therefore, the PARTIES hereby agree that BUYER and RESPONDENT shall be jointly and severally liable to the CITY OF REDLANDS in the amount of$10,000.00, in the event BUYER and/or RESPONDENT breach this AGREEMENT. This provision is in addition to the CITY OF REDLANDS' ability to specifically enforce this SACRAMENTUTOP3858 Page 5 of 10 AGREEMENT. 11. WAIVER OF APPEAL: The PARTIES acknowledge that,by agreeing to the terms and conditions of this AGREEMENT, any and all rights they may have to challenge or appeal any proceeding or order of the CITY OF REDLANDS with regard to the items listed in the REPAIR ORDER or with regard to the common areas of the development which the SUBJECT PROPERTY is located, is forever waived. This waiver expressly includes any right by BUYER or RESPONDENT to appeal or contest the formation of a HOA. 12. The PARTIES expressly waive the rights afforded under Civil Code section 1542 which provides that: 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. The PARTIES represent and warrant that they have received the advice of their attorney with respect to the advisability of making the release provided for herein, and the meaning of California Civil Code section 1542. 13. DISCOVERY OF ADDITIONAL FACTS:The PARTIES to this AGREEMENT, SACRANIENTUTMJ858 Page 6 of 10 and each of them acknowledge that they may hereinafter discover facts different from,or in addition to,those which they now know to be true with respect to the subject matter of this AGREEMENT, and agree that this AGREEMENT shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof. 14. REPRESENTATION AND WARRANTIES: The PARTIES to this AGREEMENT, and each of them, warrant and represent to each other that they have not transferred, assigned or hypothecated, or purported to transfer, assign or hypothecate, any of the claims being released hereunder. 15, NO RELIANCE ON OTHERS: The PARTIES to this AGREEMENT, and each of them, acknowledge that in entering into this AGREEMENT they have not relied upon any statement of any other party or any PARTIES' attorneys, and should any party be mistaken in the PARTIES' belief with regard to some issue of fact or law regarding the matters herein, this AGREEMENT shall nonetheless remain in full force and effect and be binding as to each and all of the parties. 16. CONSTRUCTION OF AGREEMENT: The language in all parts of this AGREEMENT shall be in all cases construed as a whole according to its fair meaning and not strictly for or against any party hereto. 11, SUCCESSORS: This AGREEMENT shall be binding upon and inure to the benefit SACRAMENTUTOP,5858 Page 7 of 10 Z� of each party and PARTIES'respective successors,heirs and assigns. The CITY OF REDLANDS reserves the right to record this AGREEMENT with the County Recorder's office once BUYER closes escrow on the SUBJECT PROPERTY. 18. COUNTERPARTS: This Release may be executed in one or more counterparts, (including via original or electronic facsimile or telecopier transmission,which shall be conclusively deemed an original signature or signatures) each of which shall be deemed an original but all of which shall constitute one and the same instrument. 19. ACTION FOR ENFORCEMENT OF AGREEMENT: If any party hereto brings an action or other proceeding, to interpret or enforce any of the terns of this AGREEMENT, or arising out of a breach of this AGREEMENT, then the prevailing party shall be entitled to recover costs and expenses,including reasonable attorneys' fees, in such amounts as may be determined by the Court, having jurisdiction thereof, in addition to any other relief awarded. 20. ENTIRE AGREEMENT:This AGREEMENT constitutes the entire agreement and understanding among the PARTIES concerning the subject matter of the AGREEMENT, and supercedes all prior and contemporaneous agreements,statements,understandings,terms,conditions, negotiations, representations and warranties, whether oral or written, made by any of the parties or their attorneys concerning the matters covered by this AGREEMENT. 21. ADVICE OF COUNSEL: Each of the PARTIES to this AGREEMENT has had SAAR AMINT UIM5858 Page 8 of 10 the opportunity to obtain the advice of legal counsel of their choice with respect to this AGREEMENT. 22. GOVERNING LAW: This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. 23, AUTHORITY TO SIGN: All individuals signing below on behalf of any entity hereby warrant and represent that they have full authority to execute this AGREEMENT on behalf of the entities for which they have signed. SACRAMENTGTOM5858 Page 9 of 10 IN WITNESS NESS WHEREFORE, the PARTIES hereto have executed or caused. this AGREEMENT to be executed by their duly authorized representatives. CITY UE REDLANDS DATED: August 28 , 2003. By: 7e,`7/**�— Karl N. Haws, Mayor ATTEST: ". �' By: -- rrie Poyzef ,rylerk DATED: , 2003. RESPONDENT Courtney Discenza By: Courtnev Discenza DATED: 2003. BLYER Juan Castillo By: Juan Castillo s;CRA I&NTt O ssss Pa-e 10 of 10 0G;'21/2003 02:51 9095798256Pi:�GE I I WEST COAST REALTY :020 f r or-9649 JIN WITNESS WMERE)FO RE. the PARTIES hereto bav4 4 xeciftext or caused this i AGREE NMIN'T to be executed by their duly authr-nized represtnutivtw'-. T CITY OF REDLY DS DATED; 2003. By: ATTESITI.Wl N, -mayor BY Lorrie Fo%'V'l C,4t3r Clerk DATED: RESPONDENT CowincI)iscenza By Cowtftey Disceriza DATED: ,2 2003. BUYEP,JUw,casbilo 13y: —7: —=l-A Ii pa;pt 1 o of 10 I V411 r �Vflfyl! r-9 i f IN WITNESS WHEREFORE. the PARTIES hereto have executed or caused this AGREEINIEN'Tto be executed by their duly authorized representatives. CITY OF REDLANDS DATED: 2003. By: Karl N. Haws, Mayor ATTEST: By- Lorric Foyzer,City Clerk DATFD: 2003. RESPONDENT Courtney Discenza F3Y Courtney Disc DATED: 2003. BUYER Juan Castilla BY: Juan Castijlo SACIZA"'T"I'l cl'E'M,5M Page 10 of 10