HomeMy WebLinkAboutContracts & Agreements_70-2003_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement(hereinafter"AGREEMENT") is entered into on
March 28,2003 by and between Petitioner the CITY OF REDLANDS,Respondent ZAREEN FIAZ
("RESPONDENT'), and Buyer RIVALED KHOURY (`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 ofAdministrative Proceeding with the San Bernardino County Recorder regarding certain
real property located at 1127 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.
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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 of the 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.
SACRAMENTOTOPA886 Page 2 of 10
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$5,000.00. 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$5,000.00.
3. BUYER agrees 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.
4. RESPONDENT agrees to repair,or cause to be repaired, each of the items listed on
the REPAIR ORDER in the event the BUYER fails to comply with Paragraph 2, above.
SACRAMENRYEOPA886 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 ofthis 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
Z.1
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.
SACRAMENTUTOJ\4886 Page 4 of 10
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
SAC RANI ENTMEOTA886 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 oftheir attorney with respect
to the advisability of making the release provided for herein, and the meaning of California Civil
Code section 1542.
SACR"ENTOTOP4886 Page 6 of 10
13. DISCOVERY OF ADDITIONAL FACTS:The PARTIES to this AGREEMENT,
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,
SACRAMENTOTOY14886 Page 7 of 10
17. SUCCESSORS: This AGREEMENT shall be binding upon and inure to the benefit
of each party and PARTIES'respective successors,heirs and assigns. The CITY OF REDLANDS
reserves the night 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 terms 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.
SACT-AMENTUTOA4886 Page 8 of 10
1. ADVICE OF COUNSEL: Each of the PARTIES to this AGREEMENT has had
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.
SAC RAMENTGNEOP4886 Page 9 of 10
IN WITNESS WHEREFORE, the PARTIES hereto have executed or caused this
AGREEMENT to be executed by their duly authorized representatives.
CITY OF REDLANDS
---)I--,-
DATED: May 6 2003. By:_ x6
Karl N. Haws,Mayor
ATTEST:
/'o
By: -L; -
Lrrie Poyzer,6&, cierk
DATED: 2003. RESPONDENT Zareen Fiaz
By:
Its:
DATED: 2003.
By:
BUYER Khaled Khoury
SACRANIENTOT0114886 Page 10 of 10
2163254D1O T-SII P.030/059 F-A66
'OR3E, bane executed or ,,d this-
IN vvrr-'fEss WHEP-F-F the PARTIES thereto ba
,(-REE-,"N_r to be executed by their duly authorized representatives.
CITY OF REDLANDS
I-DA-17ED: ' 2003. By Karl N. Haws,May—
A=ST.-
By: Lorrie PoyzM,Cit}'Clerk
D.A.MD-. 12003, IkESpON-r)ENT:Careen Fiaz
By:
Its:
DATED- 17 2003.
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By:
BUYE —Khaled Khoury
Page 10 of 10
ReCL!vt!d 01-24-03 10:35pm From-909 273 0910 To-384K Page 011
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FroRay Petegino&Robert Ward To:Ron Murray ®• •1•••• •,• Date:03/1 112003 Time:11:34:66 AM — ————
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WWREFORE, the p kR IES hereto have executed Or caused this
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AGRE MENT to ue executed by theior duly author=ed
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CITY OF REDLANDS
DATED- 2003. By
Karl N. Eiaws,RnzrYor
ATTEST:
By:
Lome Poyzer,City Clerk
DATED- 2003. RESPOND Flaz
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Its:
DATED; 2003.
By.
BUYER FR K.haled Khoury
sic ss� page 10 Of 10
Received 03-31-03 10:10am From-310 378 U692 To—BB&K Page 914