HomeMy WebLinkAboutContracts & Agreements_145-2002_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is entered into by and between
Jeremy Kilborn("Kilborn"), Sandra Salazar Moya("Moya")and City of Redlands("City")who are
sometimes referred to herein as the "Parties."
RECITALS
A. Kilborn alleges that on June 1, 2001 Kilborn was driving a 1993 Ford pickup track
westbound on Stuart Avenue at its intersection with Texas Street in the City of Redlands. Kilborn
failed to stop for the posted stop sign for westbound Stuart resulting in an accident. Kilborn alleges
that the stop sign was obscured by tree foliage located on the property at 504 Texas Street owned by
Defendant and Cross Defendant Moya. This accident is the subject of that certain legal action
entitled Jeremy Kilborn v. City of Redlands et. alSan Bernardino Superior Court Case No. SCVSS
085641 (collectively, "the Lawsuit").
B. It is the intention of the Parties to resolve and settle their dispute and to discharge all
claims,demands,causes of action,obligations,damages and liabilities Kilborn againstthe1.
City that arise from, or are related to, the incident which is the subject of the Lawsuit.
C. This Agreement is a compromise of the claims asserted by Kilborn and shall not be
treated as an admission of liability by any Party.
AGREEMENT
1. The Parties acknowledge that the Recitals are true and correct and incorporate the
Recitals into this Agreement.
2. The City shall pay to Kilborn the sum of Two Thousand One Hundred Dollars
02,100.00) within thirty(30)days from the date the City has executed this Agreement. Moya shall
pay to Kilborn the sum of Four Hundred 0400.00) Dollars within thirty (30) days from the date
Moya has executed this Agreement. The payment shall be made by checks payable to Jeremy
Kilborn, and the la-vv offices of John J. Hyland,IV. Kilborn and his Attorney of Record agree that
the checks shall not be negotiated unless and until the City notifies Kilborn's Attorney of Record of
the City's filing of the Dismissal referenced in paragraph 3,below.
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3. Kilborn,through his Attorney of Record, shall execute 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 Lawsuit, and provide the Dismissal to the City within five(5)days of his receipt
of the payment described in paragraph 2, above. City shall dismiss its cross-complaint as to Moya
as well. The City shall file the Dismissal and provide a conformed copy to all Attorneys of Record.
4. The Parties shall bear their own attorneys'fees and costs incurred in connection with
the Lawsuit.
5. Kilborn and Moya, on behalf of themselves and his/her respective 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,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 Lawsuit.
6. Kilborn and Moya represent and warrant that he/she has the legal authority to settle
any and all causes of action and claims he/she may have against the City which relate or pertain to
the Lawsuit. By executing this Agreement,Kilborn and Moya hereby release and waive all claims
or causes of action which in any way relate to the Lawsuit. To the extent any person or entity should
file, subsequent to the execution of this Agreement, any claim or cause of action against the City
arising out of, or which is related to, the incident which is the subject of the Lawsuit,Kilborn and
Moya shall indemnify,defend and hold the City harmless from any and all damages,including any
attorneys' fees and costs that result therefrom.
7. Kilborn and Moya expressly waive the rights afforded hin-V'her under Civil Code
section 1542 which provides that:
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.
S. Kilborn and Moya represent and warrant that he/she has received the advice of his/her
Attorney of Record with respect to the advisability of making the release provided for herein and the
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meaning of Civil Code section 1542. Kilborn and Moya are aware that he/she may hereafter
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discover claims or facts in addition to or different from those he/she now knows or believes to be
true with respect to the matters related herein. Nevertheless,it is the intention of Kilborn and Moya
to fully,finally and forever settle and release all such matters,and all claims related to those matters.
9. Kilborn and Moya represent and warrant that he/she 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. Kilborn and Moya 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 or purported transfer or
assignment.
10. Kilborn and Moya acknowledge that he/she has read this Agreement;that he/she has
had the Agreement explained to him/her by counsel of his/her choice; that he/she is aware of the
content and legal effect of the Agreement; that he/she is acting on the advice of counsel of his/her
choice; and that he/she 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 matters
contained herein. No modification of this Agreement shall be valid unless made in 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,
administrators, successors, and assigns of the Parties.
14. This Agreement has been jointly negotiated and drafted. The language of this
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Agreement shall be construed as a whole according to its fair meaning and not strictly for or against
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anv of the Parties.
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15. leach party executing this Agreement represents and warrants to the other signatories
that It has the authority to execute this Agreement un behalf Of the Person or entity for whom it is
signing this Agreement.
16. This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
17. In the event any action is commenced 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.
ere rn
Dated'
Sandra Salazar Moya
CITY OF RMI-ANDS
Date
Karl N.Haws,Mayor
Attest:
Lorrie Foyzer.City(Merk
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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.
16. This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
17. In the event any action is commenced 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.
Dated:
Jeremy Kilbom
Dated: Y-27 -
2-
Sandra Salazar Moya
CITY OF REDLANDS
Date Sept. 3, 2002
Karl N. Haws,Mayor
Attest:
Loyrf'e Poyzer, Ulerk-
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