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HomeMy WebLinkAboutContracts & Agreements_201-2006_CCv0001.pdf SETTLEMENT AND GENERAL RELEASE AGREEMENT This Settlement and General Release Agreement ("Agreement") is entered into by and between Jennifer Caldwell ("Caldwell') and the City of Redlands ("City"). Caldwell together with the City may be referred to herein as the "Parties." RECITALS This Agreement is made with reference to the following facts: 1. On or about September 30, 2004, Caldwell filed a Complaint in Riverside Superior Court, Indio Branch, entitled Jennifer Caldwell v Sherry Argov, et al., case number INC 046067. The allegations of Caldwell's pleadings are incorporated herein by reference for the purpose of explaining the claims being made by Caldwell against Defendants. The Complaint makes certain allegations regarding Brad Kloepfer("Kloepfer"), an employee of the City. The City joins this Settlement Agreement as it was Kloepfer's employer at the time'of the incident alleged in Caldwell's pleadings. 2. Caldwell's Complaint in Riverside County Superior Court, Indio Branch,shall be referred to as the"Subject Action." AGREEMENT 3. The Parties now desire to fully and finally settle and resolve any and all rights, claims, disputes, causes of action and alleged claims which currently exist, or may exist arising out of the parties' relationship that is related to the Subject Action. The Parties expressly intend that this settlement shall further pertain to any claims by the Parties for attorneys' fees, witness fees, and/or other costs in connection with the Subject Action. 4. Recitals. The Recitals are incorporated into and are a part of this Agreement. 5. Settlement and Dismissal of Actions. In consideration of this Agreement, and the promises set forth herein, City shall pay Caldwell the sum of Three Thousand Eight Hundred Dollars ($3,800.00), as full and final consideration and settlement for Caldwell's claims and for any additional, or potential claims which Caldwell has, or could assert, related to the Subject Action(the "Settlement Amount"). Payment shall be made to: Jennifer Caldwell 1315 S. Meadow Lane, #205 Colton, California 92324 6. Tax Consequences. Prior to the City paying the Settlement Amount, Caldwell shall provide the City with her social security number. Based thereon, the City will issue Caldwell an IRS form 1099 for tax year 2006 reflecting payment of the Settlement Amount. The City makes no representation as to whether there are any tax consequences associated with this RVLIT\MBENOV\704831.2 y settlement or the payment of the Settlement Amount. The Parties agree that the City will not withhold local, state or federal tax payments or other deductions from the Settlement Amount, and that the determination of the tax consequences relating to the Agreement and Settlement Amount, and the payment of any tax due, are the sole responsibility of Caldwell. 7. Dismissal. At the time payment is made to Caldwell by the City pursuant to paragraph 3 above, Caldwell shall execute and deliver to counsel for the City a Request for Dismissal of the Complaint with prejudice and in its entirety. 8. Release. In further consideration of this Agreement and in recognition of the benefits to be derived therefrom, and except as to the rights, duties, and obligations of the Settling Parties as set forth in this Agreement, Caldwell hereby releases, and fully and finally and forever discharges the City of Redlands, Kloepfer and the City's city council members, predecessors, successors, assigns, agents, officers, employees, representatives, attorneys, and all persons acting by, through, under, or in concert with them or any of them of and from any and all manner of actions or causes of action, in law or in equity, suits, debts, liens, liabilities, claims, demands, and damages of any nature whatsoever, known or unknown, fixed or contingent arising out of and/or related to the Subject Action and the facts alleged therein. 9. Waiver of Civil Code Section 1542. It is the intention of Caldwell that the releases entered into as part of this Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorney's fees, damages, losses, claims, liabilities and demands of any character, nature and kind, known or unknown, suspected or unsuspected, to be so barred; in furtherance of which intention Caldwell expressly waives any and all right and benefit conferred upon them by the provisions of Section 1542 of the California Civil Code, which reads 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 materially affected his settlement with the debtor. Caldwell recognizes, acknowledges, and agrees that she have been advised as to the significance and legal effect of the waiver of her rights under Section 1542 of the Civil Code. Caldwell further acknowledges and agrees that she is aware that she may hereafter discover facts in addition to or different from those which she now knows or believes to be true with respect to any claims she may have arising from or related to the matters alleged in the Subject Action, but that nonetheless, it is the intention of Caldwell to fully, finally, and forever settle and release all claims arising from or related to the matters alleged in the Subject Action, whether known, unknown, fixed, contingent, suspected, unsuspected, or otherwise. 10. Continuing Jurisdiction of Court. The Parties stipulate that the Superior Court of the State of California, County of Riverside shall have continuing jurisdiction over this matter to enforce this settlement pursuant to Code of Civil Procedure section 664.6. 11. Denial of Liability. The Parties agree and mutually acknowledge that this Agreement is for settlement purposes only. The Parties have denied, and continue to deny, any RVt IT,,MBENOV"704931.2 2 wrongdoing in connection with the actions alleged in the Subject Action. Neither this Agreement nor any action taken pursuant to this Agreement shall constitute any admission of any wrongdoing, fault, violation of laxv, or liability. This Agreement is entered into, in substantial part, to avoid the expense of continued Litigation of the Subject Action. l 12. No Assignment of Claim. The Parties represent and warrant that they have not sold, assigned or transferred, or purported to sell, assign or transfer, and shall not hereafter sell, assign or transfer, any obligations, liabilities, claims, costs, expenses, debts, controversies, damages, rights, actions, or causes of action released pursuant to this Agreement. The Parties also agree to defend, indemnify and hold one another harmless against any obligation, liability, claim, cost, expense (including but not limited to attorneys' fees incurred), debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such sale, transfer or assignment or purported sale, transfer or assignment. 13. Integrated Agreement. This Settlement Agreement is the final and entire agreement between the Parties concerning the subject matter of this Agreement. All agreements of the Parties with respect to the subject matter hereof are in writing and supersede all prior written and oral agreements and understandings of the Parties. This Agreement cannot be modified except by a written document signed by all of 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. 14. Warranty of Authorization. Any person executing this Agreement on behalf of any party does hereby personally represent and warrant that she or he has the authority to execute this Agreement on behalf of, and to fully bind, such party. 15. Independent Representation by Counsel. The Parties represent and declare that in executing this Agreement they rely solely upon their own judgment, belief and knowledge, and/or 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. 16. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California applicable to instruments, persons and transactions having legal contacts and relations solely within the State of California. 1.7. Construction. 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 Settling Parties. If any provision of this Agreement, or its application to any person, place or circumstance, is held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement, and such provision as applied to other persons and circumstances, shall remain in full force and effect. 18. Execution in CountgMarts. This Agreement may be executed in counterparts and shall become effective and binding upon the Parties at such time as all of the signatories hereto have signed the original or a counterpart original of this Agreement 19. Each Party to Bear own Costs and Fees. Each Party shall bear its own attorney's fees and other costs (including costs of expert witnesses or other consultants) incurred in the preparation for filing,prosecution of, and defense of, the Subject Action, and in the preparation, negotiation, and drafting of this Agreement. 20. Covenant to Take Further Actions Necessar . The Parties agree to execute such other documents and take such other action as may be reasonably necessary to further the purpose of this Agreement, including but not limited to dismissing the Subject Action, with the Settling Parties to bear their own costs and attorneys' fees for these additional actions. JENNIFER CALDWELL 0 LO By. CITY OF NDS//,/' Dated: September 5, 2006 By: ,,J8n Harrison Its: /Mayor ATTEST: �—�e oyj�z 6y Clerk c LZO;rri�i P /�C%t Clerk. �rl R VL 1,�M BE NW,77 04 831,2 4