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HomeMy WebLinkAboutContracts & Agreements_62-2004_CCv001.pdfINDIAN WELLS (760) 568 26 I I ONTARIO (909) 989-6584 BEST BEST & KRIEGER LLP A CALIFORNIA LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL LAWYERS 3750 UNIVERSITY AVENUE POST OFFICE BOX 1028 RIVERSIDE CALIFORNIA 92502-1028 (909) 686- 1450 (909) 666-3083 FAX BEKLAW COM April 22, 2004 Daniel J McHugh City Attorney City of Redlands 35 Cajon Street, Suite 200 Redlands, CA 92373-1505 Re Redlands adv Masry San Bernardino Supenor Court Case No Li ,s21, y \0,\ � . M1 s u pL `fir ` 'X SANDIEGO x(61 9) 525 1300 fr ORANGE COUNTY (949) 263 2600 w [Qy`.- 14' CORPORATIONS SACRAMENTO (9I 6) 325 4000 An V4 RECE1WD City Attorney's Office SCVSS 091475 Dear Mr McHugh Enclosed please find a fully executed copy of the Settlement and Release Agreement Please contact our offices if you have any questions or concerns Respectfully, K. en Carter, Secretary to Cynthia M Germano of BEST BEST & KRIEGER LLP /kc Encl cc Howard B Golds (w/o encl ) RVLIT\CMG1664377 1 SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is made and entered into by and between plaintiff Aladdin M Masry ("Masry") and defendant City of Redlands ("Redlands") The parties to this Agreement are sometimes referred to collectively as the "Settling Parties" or "Parties" RECITALS This Agreement is made with reference to the following facts 1 On or about June 26, 2002, Masry filed a complaint in the litigation known as Aladdin M Masry v City of Redlands and Does 1-10, inclusive, San Bernardino Superior Court Case No SCVSS 091475, which alleged a single cause of action for national origin/ancestry discrimination ("the Action") On or about July 26, 2002, Redlands filed an Answer 2 On or about November 17, 2003, Redlands filed a Motion for Summary Judgment ("Motion") as to the Action The Motion was heard on March 4, 2004 The Court granted the Motion, and ordered that judgment be entered rn favor of Redlands and against Masry, and that Redlands was entitled to recover its costs of suit from Masry 3 Masry desires to waive his nght to appeal the Court's ruling on the Motion, if Redlands will agree to waive its nght to recover costs and/or fees from Masry, and Redlands is amenable to such arrangement 4 The Settling Parties now desire to resolve, compromise and settle any and all disputes, claims and controversies between or among them relating to Masry's employment with RVLIT1CMG\ 63316 1 Redlands, the Action and the events giving nse thereto The Parties expressly intend that this settlement shall further pertain to any claims for violation of any civil, state and/or federal rights, attorneys' fees, witness fees, and/or other costs, and any alleged claims for abuse of process, malicious prosecution, etc , in connection with the Action AGREEMENT The Settling Parties, and each of them, agree as follows 1 Recitals The Recitals are incorporated into and are made a part of this Agreement 2 Settlement In consideration of this Agreement, and the promises set forth herein, the Settling Parties agree as follows Masry agrees that he will not file an appeal of the Court's ruling on the Motion In return, Redlands agrees to waive and release any claim for attorney's fees, costs, or malicious prosecution in connection with the Action 3 Mutual Special Releases A Except as specified in this Agreement, each of the Settling Parties and their respective pnncipals, elected officials, directors, officers, agents, partners, joint venturers, affiliates, heirs, representatives, attorneys, beneficianes, predecessors, successors, grantees, vendees, transferees, and assigns, fully and irrevocably release, acquit, and discharge each other Settling Party, and their respective past, present, and future principals, elected officials, directors, officers, employees, agents, partners, joint venturers, affiliates, heirs, representatives, attorneys, beneficianes, predecessors, successors, grantees, vendees, transferees and assigns (collectively the "Related Persons") from any and all liabilities, claims, cross-claims, causes of action, RVL1nCMG1663316 1 damages, payments, costs, attorney's fees, or demands, of whatever nature, character, type, or description, whether known or unknown, existing or potential, which the Settling Parties have or may have against each other or any of the Related Persons, occurring at any tune pnor to the Effective Date of this Agreement (as defined below), and based upon, ansmg from or relating to, Masry's employment with Redlands, the Action or any of the event giving rise thereto B The Setthng Parties, and each of them, represent and warrant that none of the liabilities, claims, causes of action, damages, payments, costs, attorney's fees or demands released in Paragraph 3(A), above, has been assigned, in whole or in part, to any person or entity C To the extent that the releases set forth above run to the favor of any persons or entities who are not signatories to this Agreement, this Agreement is declared to be made in and for their respective benefits and uses D The Parties acknowledge and expressly waive the provisions of California Civil Code section 1542, together with any similar or analogous provision under the laws of the United States of Amenca and/or the laws of any State of the United States of Amenca, which provides as follows 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 matenally affected his settlement with the debtor The Parties hereby specifically waive any and all nghts and benefits under said Section as they relate to the matters released RVL1I\CMG1663316 1 4 Continuing Junsdiction of Court The Parties stipulate that the court shall continue to have jurisdiction over this matter to enforce this settlement pursuant to Code of Civil Procedure section 664 6 5 Denial of Liability The Parties agree and mutually acknowledge that this Agreement is for settlement purposes only The Parties have deiced, and continue to deny, any wrongdoing in connection with the matters alleged in the Action Neither this Agreement, nor any action taken pursuant to this Agreement, shall constitute any admission of any wrongdoing, fault, violation of law, or liability of any kind on the part of the Parties, or any admission by and of the Parties of any claim or allegations made in any action against such Party This Agreement is entered into, in substantial part, to avoid the fees and expenses attendant to or associated with continued litigation of the claims and defenses asserted in the Action 6 Waiver of Costs and Attorney Fees Each of the Settling Parties shall bear its own attorney's fees, costs and expenses in connection with the Action, the negotiation for Ind preparation of this Agreement, and the completion of the settlement as herein provided 7 Covenant to Take Further Actions Necessary The Parties hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purpose of this Agreement, with the Parties to bear their own costs and attorney's fees for these additional actions 8 No Third -Party Beneficiaries Except as expressly set forth in Paragraph 3(C), above, there are no third -party beneficiaries to this Agreement and nothing herein shall confer any enforceable rights on non -signatory persons or entities RVLIT\CMG1663316 1 t.y 9 Admissibility This Agreement is admissible in a court of law to support any motion to enforce the settlement 10 Independent Representation by Counsel The Parties represent and declare that m executing this Agreement they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently -selected counsel, concerning the nature, extent and duration of their rights and claims hereunder, and that, except as provided herein, they have not been influenced to any extent whatsoever in executing this Agreement, by any representations, statements or omission pertaining to any of the matters herein contained by any party or by any persons representing any party 11 Construction This Agreement has been jointly negotiated and drafted The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties vtt 12 Headings The headings of this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand, or limit the terms of this Agreement 13 Governing Law This Agreement shall be interpreted, and the rights and duties of the Settling Parties shall be determined, in accordance with the laws of the State of California 14 Choice of Venue Any action brought to enforce the provisions of this Agreement shall be commenced in San Bernardino County, California All Parties hereby consent to the personal junsdiction of the State of Cshhfornia in any action to enforce, inte*pret or RV L1ITCMG1663316 1 in connection with this Agreement The Parties further consent and agree that venue m the Superior Court of the State of California, County of San Bernardino, is proper 15 Integrated Agreement This Agreement is the entire Agreement between the Parties concermng the subject matter of this Agreement and replaces any pnor negotiations, discussions or agreements between the Parties None of the Parties are relying upon any other negotiations, discussions or agreements in connection with the subject matter of this Agreement This is a fully integrated Agreement 16 Written Modification No modification of this Agreement shall be valid unless agreed to in writing by the Parties 17 Severability If any portion of this Agreement is declared by a court of competent junsdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full force and effect as if no invalid or unenforceable provisions had been part of this Agreement 18 Attorney's Fees Should any Party hereto reasonably retain counsel for the purpose of enforcing or preventing the breach of any provision of this Agreement as set forth in the Agreement, including but not limited to, instituting or defending any action or proceeding to enforce any provision of this Agreement, for damages by reason of any alleged breach of any provision hereof, for declaration of such parties' nghts or obligations hereunder or for any other judicial remedy, then, if said matter is settled by mediation, arbitration or judicial determination, the prevailing party shall be entitled to be reimbursed by the losing party for all costs and expenses incurred thereby, including, but not limited to, reasonable attorneys', paralegals', experts' and accountants' fees RVLITICMG1663316 I9 Execution m Counterparts This Agreement may be executed in counterparts by the Parties and shall become effective and binding upon the Parties at such time as all of the signatories hereto have signed the ongrnal or a counterpart onginal of this Agreement All counterparts so executed shall constitute one Agreement, binding upon all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the ongrnal or the same counterpart 20 Warranty of Authonzation Each of the signatones to this Agreement warrants and represents that he/she is fully authorized and empowered to execute this Agreement Each of the Settling Parties warrants and represents that it is fully authorized to carry out the obligations provided for herein Where a party has executed this Agreement on behalf of another party, such executing party warrants and represents that it is and has been authonzed to do so by such party 21 Effective Date This Agreement shall be effective as of the date of the last signature placed hereon, excluding the signatures of counsel, and such date shall be known as the "Effective Date" of this Agreement 22 Survivability of Covenants All representations and agreements set forth in this Agreement shall be deemed contrnurng and shall survive the execution date of this Agreement Dated Marcha S , 2004 Approved as to form Dated March 23 , 2004 RVL1'1\CMG1663316 1 ALADDIN M MASRY Vincent P Nolan Dated April 20 , 2004 Approved as to form Dated April , 2004 CITY OF REDLANDS Attest By Ci► Clerk BEST, BEST & KRIEGER, LLP By Cynthia M Germano Dated. March , 2004 CITY OF REDLANDS By Approved as to fo BEST, BEST & KRIEGER, L Dated T { , 2004 By RVLITICMG1663316 1 CONSENT CALENDAR Minutes - On motion of Councilmember George, seconded by Councilmember Harrison, the minutes of the regular meeting of April 6, 2004, were approved as submitted Bills and Salaries - On motion of Councilmember George, seconded by Councilmember Harrison, payment of bills and salaries was acknowledged Planning Commission Actions - On motion of Councihnember George, seconded by Councilmember Harrison, the report of the Planning Commission meeting held on April 13, 2004, was acknowledged as received Resolution No. 6272 - Street Banner Cntena - On motion of Councilmembei George, seconded by Councihnember Hamson, the City Council, by AYE votes of all present, approved Resolution No 6272, a resolution of the City Council of the City of Redlands adopting criteria for street banners erected on City property at the City's designated locations on Citrus Avenue, between Fifth and Sixth Streets, and on Cajon Street, near Vine Street Settlement Agreement - Aladdin M Masry - On motion of Councilmember George, seconded by Councihnember Harrison, the City Council, by AYE votes of all present, acknowledged a settlement and release agreement with Aladdin M Masry and authorized the Mayor and City Clerk to execute the agreement on behalf of the City The City Council authorized settlement of this matter m closed session and this release reflects the terms and conditions for said settlement Proclamation - Maurice Calderon - The City Council, by AYE votes of all present, authorized issuance of a proclamation recognizing and commending Maurice Calderon for his outstanding and dedicated service to the City of Redlands and surrounding communities and upon having been awarded the prestigious Premio Ohth Award given by the Mexican Ministry of Foreign Affairs on motion of Councilmember Gil, seconded by Councilmember George Mayor Pro Tem Gil noted it was a great honor for Mr Calderon for having received this award Ordinance No 2554 - Tress and Tree Protection - Ordinance No 2554, an oidinance of the City of Redlands amending Chapter 12 52 of the Redlands Municipal Code relating to trees and tree protection along streets and in public places, was adopted, by AYE votes of all present, on motion of Councilmember George, seconded by Councilmember Harrison Resolution No 6250 - Encroachment Permit - SCE - On motion of Councilmember George, seconded by Councilmember Harrison, the City Council, by AYE votes of all present, adopted Resolution No 6250, a resolution of the City Council of the City of Redlands establishing a permit procedure and April 20, 2004 Page 2