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Home My WebLink AboutContracts & Agreements_72-2004_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is entered into by and between Emil Kovachek ("Kovachek"), and City of Redlands ("City") who are sometimes referred to herein as the "Parties." RECITALS A. On or about November 27, 2002, Emil Kovachek was driving southbound on Cajon Street at its intersection with Vine Street in Redlands at or about 5:15 p.m. when contact occurred between his vehicle and two pedestrians Rhonda Reyes and Lacey Kjellberg, as they attempted to cross the intersection in or near a marked crosswalk. Ms. Reyes and Ms. Kjellberg suffered injuries. This accident of November 27, 2002, is the subject of certain legal actions entitled Rhonda Reyes vs. City of Redlands, and related cross action City of Redlands v. Emil Kovachek, San Bernardino Superior Court Case No. SCVSS 108652 and Lacey Kjellberg v. City of Redlands, and related cross action City of Redlands v. Emil Kovachek, San Bernardino Superior Court Case No. SCVSS 108948 (collectively "the lawsuits"), B. It is the intention of the Parties to resolve and settle their dispute and to discharge all claims, demands, causes of action, obligations, liens, damages and liabilities Kovachek may have against the City and City may have against Kovachek that arise from, or are related to, the incident which is the subject of the Lawsuits. C. This Agreement is a compromise of the claims asserted by the City and shall not be treated as an admission of liability by any Party. AGREEMENT I The Parties acknowledge that the Recitals are true and correct and incorporate the Recitals into this Agreement. 2. The City shall dismiss its cross-action against Kovachek in exchange for his waiver of attorney's fees and costs in this action within thirty (30) days from the date the City has executed this Agreement. 3. City, through its Attorney of Record, shall execute and file a Dismissal With Prejudice pursuant to Code of Civil Procedure section 581 of all lawsuits on file arising out of the incident giving rise to the Lawsuits within five (5) days of its receipt of this Settlement Agreement after it has been executed by Kovachek. City shall timely thereafter provide Kovachek with a conformed copy of the dismissal(s) as filed. Kovachek and his agent and assigns hereby represent they have not filed any lawsuits against the City and hereby waive any rights to file any lawsuit against the City arising out of the above-described accident of November 27, 2002. lem\agree\KovachekSettlement-cle 4. The Parties shall bear their own attorneys'fees and costs incurred in connection with the Lawsuits. 5. Kovachek, on behalf of himself and his attorneys, representatives, assigns, heirs and successors-in-interest hereby releases and forever discharges the City, and its elected officials, officers, employees, representatives, assigns and successors-in-interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, rights, liens, debts, liabilities, obligations, disputes, controversies, payments, costs and attorneys' fees of every kind and character, known or unknown, existing or contingent, latent or patent, regarding any matter arising from, or related to, the incident which was the subject of the Lawsuits. 6. Kovachek represents and warrants that he has the legal authority to settle any and all causes of action and claims he may have against the City which relate or pertain to the Lawsuits. By executing this Agreement, Kovachek hereby releases and waives all claims or causes of action which in any way relate to the Lawsuit. 7. Kovachek expressly waives the rights afforded him under Civil Code section 1542 which provides that: A general release does not extend to claims which 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. 8. Kovachek represents and warrants that he has received the advice of his Attorney with respect to the advisability of making the release provided for herein and the meaning of Civil Code section 1542. Kovachek is aware that he may hereafter discover claims or facts in addition to or different from those he now knows or believes to be true with respect to the matters related herein. Nevertheless, it is the intention of Kovachek to fully, finally and forever settle and release all such matters, and all claims related to those matters. 9. Kovachek represents and warrant that he has not assigned or transferred, or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, demand, claims, costs, expenses, liens, debts, controversies, damages, actions and causes of action released pursuant to this Agreement. Kovachek shall defend, indemnify and hold the City harmless against any obligation, liability, demand, claim, cost, expense (including, but not limited to attorneys' fees incurred), liens, debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such transfer or assignment by him. City represents and warrants that it has not assigned or transferred, or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, demand, claims, costs, expenses, liens, debts, controversies, damages, actions and causes of action released pursuant to this Agreement. City shall defend, indemnify and hold the Kovachek harmless against any obligation, liability, demand, claim, cost, expense (including, but not limited to lemlagreeAKovac:hekSettlement-cle attorneys`fees incurred), liens, debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such transfer or assignment by it. zn 10. Kovachek acknowledges that he has read this Agreement; that he has had the Agreement explained to him by counsel of his choice; that he is aware of the content and legal effect of the Agreement; that he is acting on the advice of counsel of his choice; and that he is not relying on any representations made by any other party or any of the employees, agents, representatives, or attorneys of any other party. 11. The Parties agree to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. 12. This Agreement constitutes the entire agreement between the Parties as to the I t7l matters contained herein. No modification of this Agreement shall be valid unless made in Z�' writing and signed by the Parties. The Parties shall not be bound by any representation, warranty, promise or statement unless it is specifically set forth in this Agreement. 13. This Agreement shall bind and inure to the benefit of the heirs, executors, 4D administrators, successors, and assigns of the Parties. 14. This Agreement has been jointly negotiated and drafted. The language of this C) Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. 15. Each party executing this Agreement represents and warrants to the other signatories that it has the authority to execute this Agreement on behalf of the person or entity for whom it is signing this Agreement. C) 16. This Agreement shall be governed by and construed in accordance with the laws of the State of California. IT In the event any action is commenced to enforce or interpret the terms or conditions of this Agreement the prevailing Party shall, in addition to costs and any other relief be entitled to recover its reasonable attorneys' fees. lem\agree\KovactickSettlement-cle 3 (Signature Page) SETTLEMENT AND RELEASE AGREEMENT City of Redlands v. Emil Kovachek CROSS-DEFENDANT Dated: � Emil Kovachek WITNESS AND APPROVED AS TO FORM AND CONTENT Dated: ohn Hauser, Es . CITY OF REDLANDS Dated: May 18 , 2004 -- "Peppler, l Attest: .µ.ms._.. Beatrice Sanchez, Deputy City Clerk Ionia gree\Kovaehek3ettlement-elc 4 I LAW OFFICES OF STEPHEN J. LASKERO By: JOHN A. HAUSER, State Bar No.: 125097 2 1551 N. Tustin Ave., Ste. 100 Santa Ana, CA 92705-8634 3 714/571-0407 FAX: 714/571-0429 4 5 Attorneys for Defendant, EMIL EDWARD KOVACHEK 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN BERNARDINO, CENTRAL 10 11 RHONDA REYES CASE NO.: SCVSS 108652 12 Plaintiff(s), DECLARATION OF EMIL EDWARD KOVACHEK 13 vs. Complaint Filed: October 9, 2003 14 CITY OF REDLANDS, 15 Defendants, 16 AND ALL RELATED CROSS ACTIONS 17 18 19 1,EMIL EDWARD KOVACHEK, declare: 20 1 have been named as a cross-defendant in the action referenced above. I am over the age 21 of 18 years, and I am competent to testify. If called upon to do so, I could and would testify to 22 the following facts of my own personal knowledge. 23 1. At the time of the accident referred to in the complaint, I was covered by an 24 automobile liability policy issued by Hartford Casualty Insurance Company. The policy provided 25 bodily injury liability coverage to limits of$100,000/$300,000. 26 2. 1 am informed and believe that the single limit of$100,000 was paid prior to the 27 inception of litigation to plaintiff RHONDA REYES in full and complete settlement of all claims 28 against me arising from the November 27, 2002, accident. DECLARATION OF EMIL GEORGE KOVACHEK 1 3. 1 am presently 83 years of age and I am not employed. 2 4. 1 did not have coverage under any other insurance policy for liabilities from the 3 subject motor vehicle accident. In particular, I did not have any umbrella or excess coverage 4 policy. 5 1 declare the foregoing to be true and correct under penalty of perjury under the laws of 6 the State of California. This declaration was executed on May 2004, at Redlands, 7 California. 8 9 2,ie EMIL EDWARD KOVACHEK, Declarant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF EMIL GEORGE KOVACHEK