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HomeMy WebLinkAboutContracts & Agreements_169-2019SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS The parties to this Global Settlement Agreement and Release ("AGREEMENT AND RELEASE") are as follows • • Plaintiff MARK DIGIACINTO (hereinafter referred to as "PLAINTIFF") Defendant/Cross-Complarnant/Cross-Defendant CITY OF REDLANDS • Defendant/Cross-Complainant/Cross-Defendant HILLWOOD CONSTRUCTION SERVICES OF CALIFORNIA, LP • Cross-Complainant/Cross-Defendant A CONE ZONE, INC All of these parties shall also be collectively referred herein as the "SETTLING PARTIES " Any of the above SETTLING PARTIES may be referred to singularly as a "SETTLING PARTY " recitals RECITALS This AGREEMENT AND RELEASE is entered into with reference to the following On February 2, 2017, PLAINTIFF filed a Complaint Digiacinto v City of Redlands, et al, San Bernardino County Superior Court Case No CIVDS1701902 (hereinafter the "COMPLAINT") The COMPLAINT along with all related cross-complaints filed by the SETTLING PARTIES shall be referred to as the "ACTION " The SETTLING PARTIES have reached a compromise and in doing so resolve all claims and disagreements arising from or in connection with the ACTION, including any and all claims raised or that could have been raised therein, without admitting fault or liability in connection with any matter or thing AGREEMENT AND RELEASE In consideration of the foregoing Recitals, which are an integral part of this AGREEMENT AND RELEASE, and in consideration of the respective promises and representations contained herein, the SETTLING PARTIES agree as follows 1 THE SETTLEMENT FUNDS The total sum of $2,250,000 00 (Two Million, Two Hundred and Fifty Thousand Dollars) (hereinafter the "SETTLEMENT FUNDS") shall be paid to PLAINTIFF as follows a Ironshore Specialty Insurance Company and ACE American Insurance Company, the insurers for CITY OF REDLANDS and HILLWOOD CONSTRUCTION SERVICES OF CALIFORNIA, LP, shall contribute $2,100,000 00 (Two Million One Hundred Thousand Dollars), and 4813 0940 4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims b Colony Insurance Co and Certain Underwriters at Lloyd's London, the insurers for A CONE ZONE, INC shall contribute a total of $150,000 00 (One Hundred and Fifty Thousand Dollars), each to contribute $75,000 The SETTLEMENT FUNDS shall be paid to PLAINTIFFS as set forth in this paragraph within thirty days following receipt of a W-9 and full execution of this AGREEMENT AND RELEASE by way of settlement checks or drafts made payable to "Mark Digiacinto and Carpenter, Zuckerman, and Rowley " 2 RELEASE OF ALL CLAIMS In return for payment as specified in paragraph 1, PLAINTIFF does hereby relieve, release and discharge CITY OF REDLANDS, HILLWOOD CONSTRUCTION SERVICES OF CALIFORNIA, LP, A CONE ZONE, INC , Ironshore Specialty Insurance Company, ACE American Insurance Company, Colony Specialty Co , Colony Insurance Co , Argo group US, Certain Underwriters at Lloyd's London and Premier Claims Management, Lewis Brisbois Bisgaard & Smith LLP, Wingert Grebing Brubaker & Juskie LLP, Thompson Coe & O'Meara and their respective parent, subsidiary and affiliated companies, successors, assigns, agents, elected officials, officers, directors, attorneys, employees, representatives, affiliates, administrators, partners and shareholders, as well as any other related individuals or entities, from any and all past, present and future claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses (including but not limited to attorney's fees), damages, actions and causes of action, known or unknown, suspected or unsuspected, which have arisen or may arise from or in connection with the motor vehicle accident that occurred on December 29, 2015, on Lugonia Avenue in Redlands, California, including but not limited to any and all claims which were or could have been raised in the ACTION In return for the respective payments to PLAINTIFF, CITY OF REDLANDS, HILLWOOD CONSTRUCTION SERVICES OF CALIFORNIA, LP, and A CONE ZONE, INC hereby release and discharge one another, and their respective parent, subsidiary and affiliated companies, directors, elected officials, officers, employees, insurers, shareholders, partners, representatives, agents, attorneys, administrators, successors, assigns, as well as any other related individuals or entities, from any and all past, present and future claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses (including but not limited to attorney's fees), damages, cross-complaints, contribution claims, express and/or implied indemnification claims, additional insured obligations, claims related to actions and causes of action, known or unknown, suspected or unsuspected, which have arisen or may arise from or in connection with the motor vehicle accident that occurred on December 29, 2015, on Lugonia Avenue in Redlands, California, including but not limited to any and all claims which were or could have been raised in the ACTION 3 SECTION 1542 WAIVER The SETTLING PARTIES agree that this AGREEMENT AND RELEASE is intended to be a full and final compromise, release and settlement of any and all past, present and future claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses (including but not limited to attorney's fees), damages, actions and causes of action, known or unknown, suspected or unsuspected, which 4813 0940-4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims have arisen or may arise from or in connection with but not limited to any and all claims which were or could have been raised in the ACTION, and, as a further consideration and inducement for this compromise settlement, SETTLING PARTII-S expressly waive the provisions of Section 1542 of the California Civil Code, which reads as follows A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. The SETTLING PARTIES expressly represent and warrant that they have consulted with their attorneys with respect to the meaning and significance of Civil Code Section 1542, and the undersigned further represent and warrant that they intend to, and do, waive the provisions of this section on the advice of their attorneys The SETTLING PARTIES acknowledge that different of additional facts may be discovered in addition to what they now know or believe to be true with respect to the matters herein released, and they acknowledge that this AGREEMENT AND RELEASE shall be and remain in effect in all respects as a complete and final release of the matters released, notwithstanding any different or additional facts 4 NO ASSIGNMENT The SETTLING PARTIES warrant that they have not, prior to the execution of this AGREEMENT AND RELEASE, assigned to any other person or entity any of the claims being settled, released or waived by the terms of this AGREEMENT AND RELEASE 5 REPRESENTATIONS IN NEGOTIATIONS The SETTLING PARTIES have been represented in negotiations for and in the preparation of this AGREEMENT AND RELEASE by independent counsel The SETTLING PARTIES hereby acknowledge that they have had this AGREEMENT AND RELEASE fully explained to them by their own counsel and are fully aware of its contents and Iegal effect 6 ATTORNEYS' FEES AND COSTS Each SETTLING PARTY shall bear their own attorney's fees and litigation and mediation costs incurred in connection with the ACTION and its resolution, including the preparation and negotiation of this AGREEMENT AND RELEASE 7 NO RELIANCE ON REPRESENTATIONS BY OTHERS The SETTLING PARTIES represent that they have relied on their own investigation and judgment in regard to all matters contained herein, including the consequences of this transaction as the result of application of any federal or state tax law, that they have not relied on any representations made by any other party, that this AGREEMENT AND RELEASE is entered into by them of their own volition, and that they entered into this AGREEMENT AND RELEASE free of any duress, coercion, or undue influence of any source whatsoever 8 ENTIRE AGREEMENT This AGREEMENT AND RELEASE contains the entire understanding and agreement between and among the SETTLING PARTIES with regard to the matters herein set forth There are no representations, warranties, agreements, 4813 0940-4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims arrangements, undertakings, oral or written, between or among the SETTLING PARTIES relating to the subject matter of this AGREEMENT AND RELEASE which are not fully expressed herein 9 MODIFICATIONS This AGREEMENT AND RELEASE may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by all of the SETTLING PARTIES affected by such modification or by their authorized representatives A modification or waiver of any one provision shall not constitute a waiver or modification of any other provision not expressly waived or modified 10 BINDING EFFECT This AGREEMENT AND RELEASE shall be binding upon and inure to the benefit of the SETTLING PARTIES and their respective heirs, grantees, relatives, trustees, beneficiaries, predecessors, successors, assigns, shareholders, partners, affiliated and related entities, officers, directors, agents, employees and representatives 11 ENFORCEMENT In the event an action is brought by any SETTLING PARTY to enforce this AGREEMENT AND RELEASE, the prevailing party in such action shall be entitled to recover its reasonable attorneys' fees and costs as actually incurred in connection with such later action 12 PREPARATION This AGREEMENT AND RELEASE is the product of negotiation and preparation by and among each SETTLING PARTY and their respective attorneys The SETTLING PARTIES acknowledge and agree that this AGREEMENT AND RELEASE shall not be deemed prepared or drafted by one party or another and shall be construed accordingly 13 GOVERNING LAW This AGREEMENT AND RELEASE shall be governed by and interpreted in accordance with the laws of the State of California 14 COUNTERPARTS This AGREEMENT AND RELEASE may be executed by facsimile or by scanned and electronically transmitted copies in any number of counterparts and signature pages and by different parties on separate counterparts and signature pages, each of which, when so executed and delivered, shall be an original, and all such counterparts shall together constitute one and the same instrument A photocopy, facsimile, or scanned and printed copy of this signed AGREEMENT AND RELEASE shall be as effective as an original, and it shall be no defense to any action on this AGREEMENT AND RELEASE that the original signed document is lost, destroyed, or otherwise unavailable, or that a copy is introduced in evidence in lieu of the original 15 PLAINTIFFS' LIENS PLAINTIFFS and PLAINTIFFS' attorneys represent and warrant that there are no known valid prior attorney hens or medical liens, or any other hens of any kind arising from or connected with the motor vehicle accident that occurred on December 29, 2015, on Lugonia Avenue in Redlands, California, and/or the ACTION PLAINTIFF and PLAINTIFF'S attorneys agree to and shall defend, indemnify and hold harmless the remaining SETTLING PARTIES, their respective attorneys and their respective insurers, from and against all such claims, liens, demands, obligations, actions, causes of action, damages, costs and 4813 0940 4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims expenses from any and all claims arising for any loss incurred in the future by reason of the assertion by any person or entity of a claim(s) and/or (a) hen(s) in connection to the subject matter of this ACTION and/or the alleged occurrence giving rise to the subject ACTION, including but not limited to the assertion of any claim to the proceeds of the settlement that is the subject of this release by any prior attorney, Medi -Cal, Medicare, medical provider, worker's compensation carrier, employer, or any other person or entity 16 REPRESENTATIONS By execution of this AGREEMENT AND RELEASE, each SETTLING PARTY warrants that (a) If such party is not an individual, this AGREEMENT AND RELEASE is executed on behalf of a valid and subsisting legal entity, (b) Such entity has full right and authority to undertake any action contemplated by this AGREEMENT AND RELEASE, (c) The execution of this AGREEMENT AND RELEASE has been duly and properly authorized by the party on whose behalf this AGREEMENT AND RELEASE is executed in accordance with all applicable laws, regulations, agreements and procedures governing the authority of such person or entity to execute this AGREEMENT AND RELEASE on behalf of such party, and, (d) The consent of all persons or entities whatsoever necessary to the due execution of this AGREEMENT AND RELEASE has been obtained 17 SEVERABILITY Should any provision of this AGREEMENT AND RELEASE be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall not be deemed to be part of this AGREEMENT AND RELEASE 18 USE OF TERMS Wherever the context of the AGREEMENT AND RELEASE requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural 19 NO BENEFIT TO THIRD PARTIES Except as expressly provided in this AGREEMENT AND RELEASE, nothing herein contained or contemplated shall in any way be construed as a waiver, release, or surrender of any rights that the SETTLING PARTIES may have against any person, firm, or entity not a party to this AGREEMENT AND RELEASE or not specifically released by them in this AGREEMENT AND RELEASE 20 NO ADMISSION OF FAULT the SETTLING PARTIES acknowledge that this is a settlement of a disputed claim, and not an admission of fault, wrongdoing, guilt or liability by any SETTLING PARTY 21 JURISDICTION TO ENFORCE SETTLEMENT The San Bernardino County Superior Court may retain jurisdiction over Mark Digiacinto, the City of Redlands, Hillwood Construction Services of California, LLP, and A Cone Zone, Inc to enforce this AGREEMENT AND RELEASE in accordance with California Code of Civil Procedure Section 664 6 4813 0940 4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims 22 DISMISSAL OF COMPLAINT AND CROSS-COMPLAINTS SETTLING PARTIES shall file dismissals of their respective Complaint and Cross -Complaints, with prejudice, as against all Defendants and Cross -Defendants, within thirty days following payment of the SETTLEMENT FUNDS as described in Paragraph 1 above 23 SETTLING PARTIES hereby declare that the terms of this AGREEMENT AND RELEASE have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement and for the express purpose of precluding forever any further additional claims against one another of any and all claims, disputed or otherwise, on account of injuries and/or damages related to the Claims set forth herein For the protection of the undersigned Plaintiff, California law requires the following to appear on this form. "IT IS UNLAWFUL TO (A) PRESENT OR CAUSE TO BE PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS UNDER A CONTRACT OF INSURANCE AND (B) PREPARE, MAKE OR SUBSCRIBE ANY WRITING WITH INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNISHABLE BY IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS ($1,000) OR BOTH." IN WITNESS WHEREOF, the SETTLING PARTIES have executed this AGREEMENT AND RELEASE on the date which appears opposite their signatures Dated , 2019 Dated FS / , 2019 Plaintiff MARK DIGIACINTO Paul Foster, Mayor, on behalf of the CITY OF REDLANDS Attested to by Jeanne Dona , City Clerk, City of Redlands 4813 0940-4831 1 Digmcinto v City of Redlands, et al Settlement Agreement and Release of All Claims Dated , 2019 Dated , 2019 Jim Linden, President, on behalf of HILLWOOD CONSTRUCTION SERVICES OF CALIFORNIA, LP Elaine Norland on behalf of A CONE ZONE, INC 4813 0940-4831 1 Digiacinto v City of Redlands, et al - Settlement Agreement and Release of All Claims