HomeMy WebLinkAboutContracts & Agreements_60-2013_CCv0001.pdf SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims ("Agreement"} is made and
entered into this 16'h day of April, 2013 ("Effective Date"), by and among Plaintiffs Charles E.
Holcombe Jr., Sandra Gillam, James Gillam, Amy Holcombe, and Timothy Holcombe
(collectively "Plaintiffs"), and the City of Redlands, a municipal corporation {"City"). Plaintiffs
and City are together referred to herein as the"Parties"and, individually, as a"Party."
RECITALS
WHEREAS, there is now pending in the Superior Court of San Bernardino County an
action by Plaintiffs against City bearing case number ClVD 1211306(the"Lawsuit") ;and
WHEREAS, the subject matter of the Lawsuit concerns claims for damage to property
owned by Plaintiffs commonly known as 624 W. State Street in the City of Redlands (the
"Property") from the failure of a storm drainage channel maintained by City, which claims are
denied by City;and
WHEREAS, City has previously made payments in the sum of$35,000 for lost rent, and
in the sum of$110,000 as an advance toward the cost of repair the Property, which sums were
paid in consideration for partial releases from Plaintiffs; and
WHEREAS, the Parties in good faith desire and intend, by this Agreement, to resolve,
compromise and settle any and all disputes, claims and controversies between or among them
pertaining to the issues in the Lawsuit;
NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, and based upon the foregoing recitals and the terms, conditions,
covenants,and agreements contained herein, the Parties agree as follows:
1. Settlement Payment. Within ten (10) business days of the Effective Date of this
Agreement, City shall pay Plaintiffs the additional amount of$244,460 as full and final
settlement of the Lawsuit. This payment, together with the above stated sums,is referred
to as the "Settlement Sum" and constitutes a full and complete settlement and
compromise of the Lawsuit and of all disputed claims arising out of or related to the
Lawsuit between the Parties. Payment will be made through a check made payable to
"Trust Account of Scott Showier."
2. Dismissal of Action. Plaintiff shall cause the Lawsuit to be dismissed in its
entirety against City, with prejudice, with all Parties to bear their own costs and
attorneys' fees, within seven (7) calendar days of payment of the Settlement Sum to
Plaintiffs.
3. Mutual Release. For valuable consideration, the receipt and adequacy of which
are hereby acknowledged, City and Plaintiffs do hereby release and forever discharge
each other and their respective "Releasees" hereunder, consisting of their respective
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elected officials, officers, agents, owners,trustors, settlors,trustees, members,employees,
attorneys, co-owners, spouses, and/or any other persons acting on their behalf of and
from any and all manner of action or actions, cause or causes of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands,
damages, losses, cost or expenses, of any nature whatsoever, known or unknown, fixed or
contingent (hereinafter called "Claims"), which the Parties now have or hereafter may
have against each other and/or the Releasees, or any of them, by reason of any matter,
cause, or thing whatsoever from the beginning of time to the date hereof including,
without limiting the generality of the foregoing, the Lawsuit as well as any matters,
causes, or things whatsoever that were, or have been, or could in any way have been,
alleged in the Lawsuit.
4. Release of Unknown Claims. The Parties intend and agree that the Release set
forth above in Paragraph 3 of this Agreement is to be interpreted as broadly as possible,
and is a release of all Claims, demands, causes of action, obligations, damages, and
liabilities of any nature whatsoever that are described in the Release and is intended to
encompass all known and unknown, foreseen and unforeseen claims which the Parties
may have as a result of the Lawsuit except for any claims which may arise from the terms
of this Agreement.
5. Waiver of Civil Code Section 1542. Further, the PARTIES expressly agree to
waive and relinquish all rights and benefits they may respectively have against each other
and the Releasees under Paragraph 3 of this Agreement based on Section 1542 of the
Civil Code of the State of California. That section reads as follows:
" §1542. [General release; extent] 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."
City's initials:
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Plaintiffs' initials:
1 1-1
6. Discovery of Different or Additional Facts. The Parties acknowledge
that they may hereafter discover facts different from or in addition to those that
they now know or believe to be true with respect to the claims, demands, causes
of action, obligations, damages, and liabilities of any nature whatsoever that are
the subject of this Agreement, and expressly agree to assume the risk of the
possible discovery of additional or different facts, injuries,damages and/or claims
and the Parties agree that this Agreement shall be and remain effective in all
respects regardless of such additional or different facts, injuries, damages and/or
claims.
7. Non-Admission of Liability. The Parties acknowledge and agree that
this Agreement is a settlement of disputed claims. Neither the fact that the
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offic7lais, officers,agents,Owners,truStOrs, seulors,trustees,members,employees,
elected other persons acting on their behalf of and
attorneys, co-*wnerS, Spouses, and/or any - of action, in law Or in
from any and all manner of action or actions, cause Or causes
, suits, debts, liens, contact-% agreements, promiscs, liability, claims, dariands'
equity losses, cost or expenses, of any nature whatsoever, known or utilmawn,fixed or
contingent (hereinafter called ,Claims,"), which the Parties now have or hereafter may
other andtor the p
,eleasees, or any of them, by reason of any mutter,
have against each hereof including,
cause, or thing whatsoever ftom the beginning of time to the date
without limiting the generality of the foregoing, the Lawsuit as well as any matters,
causes, or things whatsoever that were, or have been, or could in any way have been,
alleged in the Lawsuit.
4. Release of Unknown Claims. The Parties intend and agree that the Rejease set
forth above in Psngraph 3 of this Agreement is to be intcrprcted as broadly as possible,
aAd is a release Of aft Claims, demands, causes of vaion, obligations, damages, am
liabilities of any nature whatsoever that we described in the Release and is intendod to
encompass all known and unknown, foreseen and unforeseen claims which the Parties
may have as a result ofthe Lawsuit except for any claims which may arise from the terms
of this Agreement.
Waiver of CMI Code Section 1542. Further, the PARTIES exPrMIY agree to
ish all rights and benefits they may respectively have against each other
waive and rclinqu ion 1542 of the
and the Releasees under Paragraph 3 of this Agreement based on Sect
Civil Code of the Stow of California. That section M&as f011Ows:
11 §1542. (Geaeral rvOease; cxwnt] A general release does not extend to
claims which the creditor does not know " suspect to exist in his or her
favor at the time of executing the release,which if known by him or her most
have materiaft affected his or her settletnest with the debtor."
Plaintifw illitiab:�5 n -1��Additional Facts. The Parties acknowledge
6, Diaovery Of Different or
that they may hereaftr discover facts different ftm or in aAdition to those that
they now know or believe to be true with respect to the claims, demands, causes
of action, obligations, damages, and liabilities of any nature whatsoever that are
the subject of this Agreement, and expressly agree to assume the risk of the
possible discovery of additional or dif ficrent f=t---,injuries,damages and/or Claims
the Parties agree that this Agreement shut) be and remain r_fftctive in all
respects regardless of such additional or different facts, ir�uries, damages and/or
claims-
7. Iqon-Admission of Liabifity. The parties acknowledge and agree that
tb is Agreement is a settlement of disputed Claims. Neither the fact *at the
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Parties have settled nor the terms of this Agreement shall be construed in any
manner as an admission of any liability by any Party hereto, or any of its
employees, or any affiliated persons or entities, including the City's attorneys, all
of whom have consistently taken the position that they have no liability
whatsoever to the other Parties.
8. No Assignment of Claims. The Parties each warrant that they have made
no assignment, and will make no assignment, of any claim, chose in action, right
of action or any right of any kind whatsoever, embodied in any of the Claims and
allegations referred to herein, and that no other person or entity of any kind had
or has any interest in any of the demands, obligations, actions, causes of action,
debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses,
losses or claims referred to herein.
9. Successors and Assigns. This Agreement, and all the terms and
provisions hereof, shall be binding upon and shall inure to the benefit of the
Parties and their respective heirs, legal representatives, successors, officers,
owners,members and assigns.
10.Knowing and Voluntary. This Agreement is an important legal
document and in all respects has been voluntarily and knowingly executed by the
Parties. The Parties specifically represent that prior to signing this Agreement
they have been provided a reasonable period of time within which to consider
whether to accept this Agreement. The Parties further represent that they have
each carefully read and fully understand all of the provisions of this Agreement,
and that they are voluntarily, knowingly, and without coercion entering into this
Agreement based upon their own judgment.
11. Assistance of Counsel. The Parties each specifically represent that they
have consulted to their satisfaction with, and received independent advice from,
their respective counsel, prior to executing this Agreement, concerning the terms
and conditions of this Agreement.
12.Singular and Plural. Whenever required by the context, as used in this
Agreement the singular shall include the plural, and the masculine gender shall
include the feminine and the neuter, and the feminine gender shall include the
masculine and the neuter.
13.Enforcement Costs. Should any legal action be required to enforce the
terms of this Agreement, the prevailing Party in such action shall be entitled to
reasonable attorneys' fees (including attorneys' fees for a Party's use of in-house
counsel) and costs pertaining to such action, in addition to any other relief to
which that Party may be entitled.
14.Severability. Should any portion, word, clause, phrase, sentence or
paragraph of this Agreement be declared void or unenforceable, such portion
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shall be considered independent and severable from the remainder,the validity of
which shall remain unaffected.
15. Readings. Headings at the beginning of each numbered section of this
Agreement are solely for the convenience of the Parties and are not a substantive
part of this Agreement.
16.Ambiguity. The Parties acknowledge that this Agreement was jointly
prepared by them, by and through their respective legal counsel, and any
uncertainty or ambiguity existing herein shall not be interpreted against any of the
Parties,but otherwise shall be interpreted according to the application of the rules
on interpretation of contracts.
17.Waiver. Failure to insist on compliance with any term, covenant or
condition contained in this Agreement shall not be deemed a waiver of that term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power contained in this Agreement at any one time or more times be deemed a
waiver or relinquishment of any right or power at any other time or times.
18. Governing Law. This Agreement is made and entered into in the State of
California, and shall in all respects be interpreted, enforced and governed under
the laws of said State without giving effect to conflicts of laws principles.
19.Entire Agreement. This Agreement constitutes the entire agreement
between the Parties and supersedes any and all other agreements, understandings,
negotiations, or discussions, either oral or in writing, express or implied between
the Parties for the subject matter herein. The Parties each acknowledge that no
representations, inducements, promises, agreements, or warranties, oral or
otherwise, have been made by them, or anyone acting on their behalf, which are
not embodied in this Agreement, that they have not executed this Agreement in
reliance on any such representation, inducement, promise, agreement or warranty,
and that no representation, inducement, promise, agreement or warranty not
contained in this Agreement, including, but not limited to, any purported
supplements, modifications, waivers, or terminations of this Agreement shall be
valid or binding, unless executed in writing by all of the Parties to this
Agreement.
20.Modifications. Any alteration, change, or modification of or to this
Agreement shall be made by written instrument executed by the Parties hereto in
order to be-come effective.
21. No Third Party Beneficiaries. No person or entity shall be deemed to be
a third party beneficiary hereof, and nothing in this Agreement (either express or
implied) is intended to confer upon any person or entity that is not a Party to this
Agreement any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
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22.Authority to Sign. The persons executing this Agreement on behalf of
Plaintiffs warrant that (i) such Party is duly organized and existing, (ii) they are
duly authorized to execute and deliver this Agreement
on behalf of said Party and to bind that Party, including its members, agents and
assigns, (iii) by so executing this Agreement, such Party is formally bound to the
provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other agreement to which said Party is bound.
IN WITNESS WHEREOF, the undersigned have read, understand and agree to
all of the above terms and conditions of this Agreement, consisting of a total of 6 pages,
by executing jt-t�d- the datesset1ort"elow.
'Ch es E. Holcor6b4K,Jr.
Amy'hoom&e'
SandrGillam
//ames Gillam
Timothy Holcombe
CITY OF REDLANDS
Pete Aguilhf,Mayor
ATTEST:
Sam Irwin, "C-Ay
,)Clerk
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22. Authority to Sign. The persons executing this Agreement on behalf Of
Plaintiffs warrant that (i) such Party is duly organized and existing, (H) &&y are
duly authorized to execute and deliver this Agreement
on behalf of said Party and to bind that Party, including its members,agents and
assigns,, (iii) by so executing this Agreement, such Party is formally bound to the
provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other agreement to which said Party is hound_
INWITNESS WHEREOF, the undersigned have read, understand and agree to
all of the above terms and conditions of this Agreement, consisting of a total of 6 pages,
by executing il-941he"es 'fOrtlow.
5/firles E Holoo
h les V--Holco
4AAmy 0 orn C
San Gillam
0
Amy
V
m
dr Gillarn
ames Gillam
s
Timothy I
CITY OF REDLANDS
Pew Aguilar,Mayor
APPROVED AS TO FORM
For PLAINTIFF:,
tf
UUN
Scott Showler,Esq.
For CITY:
Daniel McUtigh,City Attorney--
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