HomeMy WebLinkAboutContracts & Agreements_136-2013_CCv0001.pdf AGREEMENT OF SETTLEMENT AND
GENERAL RELEASE
1. PARTIES. The parties to this Agreement of Settlement and General Release("Agreement'j
are Johnny Chadwick and Tress Chadwick, individually and dba Johnny's Nursery("Plaintiffs"),
and the City of Redlands("Defendants").
2. RECITALS. This Agreement is made with reference to the following facts:
2.1 Certain disputes and controversies have arisen between the parties
hereto.
2.2 Such disputes and controversies include, but are not limited to,the
claims,demands and case or causes of action set forth by the parties hereto
in a civil action pending in the San Bernardino County Superior Court and
entitled Johnny Chadwick, Tress Chadwick and Johnny's Nursery v. City
of Redlands,et al.,Case No. CIVDS 1111102
2.3 It is the intention of the parties hereto to settle and dispose of, fully and
completely,any and all claims, demands and cause or causes of action
existing as of the effective date of this agreement and arising out of,
connected with,or incidental to the dealings between parties hereto to the
effective date hereof including,without limitation on the generality of the
foregoing,any and all claims, demands and cause or causes of action
reflected in the civil action referenced in Paragraph 2.2 above.
3. DISMISSAL: Concurrently with the execution of this Agreement, Plaintiffs shall dismiss,with
prejudice,the civil action referenced in Paragraph 2.2 above as to their claims, in exchange for
the Defendant's agreement to waive the right to seek recovery of attorney's fees and costs
incurred in the defense of Plaintiffs claim for damages.
4. INTENTIONALLY OMITTED
5. GENERAL RELF,48E. In consideration of the general release contained herein, and for other
good and valuable consideration,the receipt of which is acknowledged by each party hereto,the
parties promise,agree and generally release as follows:
5.1 Except as to such rights or claims as may be created by this Agreement,Plaintiffs
hereby releases,remise and forever discharge Defendant from any and all claims,
demands and cause or causes of action existing as of the effective date and arising out of,
connected with or incidental to the dealings between the parties hereto prior to the
Agreement of Settlement and General Release Page 1
effective date hereof including, without limitation on the generality of the foregoing, any
and all claims, demands and cause or causes of action reflected in the civil action
referenced in Paragraph 2.2 above.
5.2 Plaintiffs specifically waive the benefit of provisions of Section 1542 of the Civil
Code of the State of California, as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.
6. REPRESENTATIONS AND WARRANTIES: Each of the parties to this Agreement represents
and warrants to, and agrees with, each other party hereto, as follows:
6.1 Plaintiffs have received independent legal advice from their attorneys with respect to
the advisability of making the settlement provided for herein, with respect to the
advisability of executing this Agreement, and with respect to the meaning of California
Civil Code Section 1542.
6.2 No party(nor any officer, agent, employee, representative, or attorney of or for any
party), has made any statement or representation or failed to make any statement or
representation to any other party regarding any fact relied upon in entering into this
Agreement, and each party does not rely upon any statement, representation, omission or
promise of any other party(or of any officer, agent, employee, representative, or attorney
of or for any party), in executing this Agreement, or in making the settlement provided for
herein, except as expressly stated in this Agreement.
6.3 Plaintiffs have made such investigation of the facts pertaining to this settlement and
this Agreement, and all the matters pertaining thereto, as they deem necessary.
6.4 Plaintiffs have read this Agreement and understand the contents hereof. Each of the
officers executing this Agreement on behalf of their respective corporations is
empowered to do so and thereby binds such respective corporation.
6.5 In entering into this Agreement and the settlement provided for herein, Plaintiffs
assume the risk of any misrepresentation, concealment or mistake. If any party should
subsequently discover that any fact relied upon by it in entering into this Agreement was
untrue, or that any fact was concealed from it, or that its understanding of the facts or of
the law was incorrect, such party shall not be entitled to any relief in connection therewith
including,without limitation on the generality of the foregoing, any alleged right or claim
to set aside or rescind this Agreement. This Agreement is intended to be and is final and
binding between the parties hereto, regardless of any claims of misrepresentation,
Agreement of Settlement and General Release Page 2
promise made without the intention to perform, concealment of fact,mistake of fact or
lave,or of any other circumstance whatsoever.
6.6 Plaintiffs have not heretofore assigned,transferred,or granted, or purported to assign,
transfer,or grant,any of the claims,demands,and cause or causes of action disposed of
by this Agreement.
6.7 Each term of this Agreement is contractual and not merely a recital.
6.8 Plaintiffs are aware that they may hereafter discover claims or facts in addition to or
different from those they now know or believe to be true with respect to the matters
related herein. Nevertheless,it is the intention of the parties to fully,finally and forever
to settle and release all such matters,and all claims relative thereto,which do novo exist,
may exist,or-heretofore have existed between them. In fimrtherance of such intention,the
releases given her shall be7 and remain in effect as full and complete mutual releases of
all such matters,notwithstanding the discovery of existence of any additional or different
claims of facts relative thereto.
6.9 The parties will execute all such further and additional documents as shall be
reasonable,convenient,necessary or desirable to carry out the provisions of this
Agreement.
7. SEMS ENT:This Agreement effects the settlement of claims which are denied and
contested,and nothing contained herein shall be construed as an admission by any party hereto
of any liability of any kind to any other party. Each of the parties hereto denies any liability in
connection with any claim and intends hereby solely to avoid litigation and buy its peace.
8. MISCELMNEOIUS:
8.1 This Agreement shall be deemed to have been executed and delivered within the State
of California and the rights and obligations of the parties hereto shall be construed and
enforced in accordance with,and governed by,the laws of the State of California.
8.2 This Agreement is the entire Agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and written
agreemnents and discussions. This Agreement may be amended only by an agreement in
writing,signed by the parties thereto.
8.3 This Agreement is binding upon and shall inure to the benefit of the parties hereto,
their respective ants,employees,representatives,officers,directors,divisions,
subsidiaries,affiliates, assigns,heirs,successors in interest and shareholders.
Agreement of Settlement and General Release page 3
t
24
8.4 Each party has cooperated in the drafting and preparation of this Agreement. fence,
in any construction to be made of this Agreement,the same shall not be construed against
any party.
8.5 In the event of litigation relating to this Agreement,the prevailing party shall be
entitled to attorney's fees and costs.
8.6 This Agreement may be executed in counterparts,and when each party has signed and
delivered at least one such counterpart, each counterpart shall be deemed an original, and;
when taken together with other signed counterparts.shall constitute one Agreement,
which shall be binding upon and effective as to all parties.
8.7 This Agreement,consisting of four pages,is made and entered into on and as of
2013, in Redlands. California, and is effective as of this date.
J A WICK
TRE ICK
JOHNNY'S NURSERY
CITY O 1DLANDS
ROVED A TO CONTENT: Pete Aguilar, Mayor
ATTEST
O P L Sam Iiwin
City -lerk
BRUCE E.DISENHOUSE
Agreement of Settlement and General Release Page 4