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Following your discussions with a Board member, attached is an agreement for the Association to purchase your domain www.edgewaterisle.com, and a Release that commits you to dropping any and all claims against the Association for the recovery of expenses related to the failure of your water heater. We believe this may create a conflict with your homeowners insurance policy and the associated obligations as an insured under that contract. We recommend that you read your policy carefully before signing. Having stated this, please make your decision and communicate it back to me by 5 p.m. Wednesday, October 26, 2005.
Regards,
Michael Kay

Attachments
Files:
Settlement_Agr_10_18_05.doc (42k) [Preview]

Agreement and Release

This Agreement and Release (the "Agreement") is dated for reference purposes as of                          , 2005, by and between the Edgewater Isle North Homeowners Association, a California nonprofit mutual benefit corporation (the "Association") and --------------- ("--------------"), who are referred to collectively as, the "Parties."RECITALS Association is a homeowners' association formed to own, maintain and manage the amenities and the common areas of the Edgewater Isle North condominium development (the “Project”).---------- is a resident of the Project and a Member of the Association.  -------- represents and warrants that she is the sole owner of, has all rights, interests, and title to the domain name http://edgewaterisle.com (the “Domain Name”).  ---------- further represents and warrants that there are no ownership disputes regarding the Domain Name; that she is authorized to sell the Domain Name and the sale of the Domain Name will not violate the rights of any individual or entity that is not a party to this Agreement.

•  ---------- has alleged that she has incurred expenses and other damage as a result of the failure of her water heater in 2005 and ---------- has further alleged that the failure of the water heater was, in whole or in part, attributable to the Association’s failure to fulfill its maintenance and other obligations as set forth in the governing documents of the Association (the “Allegations”).  ---------- represents and warrants that she has not sold, transferred, conveyed, assigned, hypothecated, and/or subrogated any of the rights, or Allegations released herein;

•  The Association denies the Allegations, and without admitting fault or liability related thereto, desires to purchase ownership, all rights, interests, and title to the Domain Name and to settle the Allegations, by paying the total sum of $1,500.00 to --------.

•  ---------- has agreed to transfer to the Association ownership, all rights, interests, and title to the Domain Name and to release the Association from all claims arising from or related to the Allegations in exchange for the payment of the sum of $1,500.00.

•  NOW, THEREFORE, the parties hereby agree as follows:Transfer of Domain Name.  Upon execution of the Agreement by the Parties, ---------- will transfer to the Association the ownership, all rights, interests, and title to the Domain Name.  ---------- shall obtain and properly execute all documentation required to effectuate such transfer.  The transfer shall include any registered or unregistered trademarks, service marks, copyrights or other intellectual property or proprietary rights based on or related to the Domain Name.

•  Payment to ---------- .  Upon transfer of the ownership, all rights, interests, and title, of the Domain Name, the Association will pay to ---------- the sum of $1,500.00 for ownership, all rights, claims to exclusive use, and title to the Domain Name and to settle the Allegations (the "Cash Payment").

•  Release.  In consideration for the full and timely performance of all terms and conditions of this Agreement in the manner prescribed herein, ---------- , on behalf of herself and on behalf of each of her heirs, executors, administrators, trustors, beneficiaries, predecessors, successors, assigns, partners, partnerships, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations, and/or corporations connected with her, including, without limitation, her insurers, sureties and attorneys, (collectively "Releasors") hereby releases and forever discharges Association; and Association's heirs, executors, administra­tors, trustors, trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations and/or corporations connected with them, who are or may ever become liable to them, including, without limitation, their insurers, sureties and attorneys (collectively "Releasees"), of and from the Allegations, and all demands, causes of action, obligations, damages, losses, costs, attorneys' fees and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, which Releasor may now have or may hereafter have against any Releasee to this Agreement by reason of any matter, cause or thing arising out of and/or connected with the Allegations (the “Released Matters”).  RELEASORS agree to defend, indemnify and hold harmless RELEASEES from any and all damages and/or claims arising out of this Agreement or the Allegations.

• Releasor expressly acknowledges and agrees that, with respect solely to the above Released

Matters, all rights under '1542 of the California Civil Code are expressly waived.  California Civil Code '1542 reads as follows:

A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OF 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.Releasor acknowledges that she has read and understood this Release, including the above cited Civil Code section.  Releasor waives any benefits and rights granted to her pursuant to Civil Code '1542.

Covenant Not to Sue.  The Parties agree that the release of the Released Matters is complete and final and that the Parties will not sue, commence or maintain any action, arbitration or other proceeding regarding the Released Matters.  If any such action has been commenced, the Parties will cause such action to be dismissed forthwith with prejudice.

Liability.  This Agreement is the result of a compromise and will never for any purpose be considered as an admission of liability or responsibility by any Released Party.

Construction of Agreement.  This Agreement is the product of negotiation and preparation by and among the Parties hereto and their respective attorneys.  The Parties therefore expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one Party or another, or its attorneys, and will be construed accordingly.

Governing Law.      This Agreement shall be interpreted in accordance with and governed  in all respects by the laws of the State of California

Signatures and Counterparts.  This Agreement may be signed in more than one counterpart and each signature page may be attached to one document to make one Agreement. 

Successors and Assigns.  This Agreement is binding upon and will inure to the benefit of the respective heirs, successors and assigns of the parties.

Entire Agreement.  This Agreement constitutes the entire understanding between the Parties with regard to the matters herein set forth.  There are no representations, warranties, agreements, arrangements, undertakings, oral or written, by or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein.

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