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HomeMy WebLinkAboutContracts & Agreements_187-2003_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement("Atzi-cement")is entered into by and between Jerry Colburn ("Colburn") and City of Redlands ("Redlands"). RECITALS A. Colburn alleges that on January 25, 2003, the City of Redlands, was responsible for an automobile versus pedestrian accident on the northbound side of Orange Street near the railroad crossing which was the subject of that certain legal action entitled Jerry Colburn v. Corinna Criss and Doe I Defendant City of Redlands, San Bernardino Superior Court Case No. SCVSS 100413 (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,gations,damages and liabilities each Party may have against Z:) the other that arises from, or are related to, the incident which is the subject of the Lawsuit. C. This Agreement is a compromise of the claims and liabilities asserted by the Parties 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. ? Colburn, through his Attorney of Record shall, in exchange for the City waiving its costs of suit, execute a Dismissal with prejudice of the above-referenced legal action as to the City of Redlands. This executed original Dismissal shall be sent to the City of Redlands for filing with zn the court. 3. Colburn,through his Attorneyof Record,shall execute said 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 City within ten(10)days. City shall file the Dismissal and provide a conformed copy to Colburn's Attorney of Record. 1�Iea leri�,A�recilictits"('olbLit'n Settlement Agreement.\Npd 4. The Parties shall bear their own attorneys'fees and costs incurred in connection with the Lawsuit. 5. Colburn, on behalf of himself and his respective agents, attorneys, representatives, assigns and successors-in-interest hereby releases and forever discharges Redlands, and its Councilmembers,agents,attorneys,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. Colburn represents and warrants that he has the legal authority to settle any and all causes of action and claims he may have against Redlands with regard to any and all claims andl'or causes of action which relate or pertain to the Lawsuit. By executing this Agreement, Colburn hereby releases and waives all claims or causes of action which in any way relate or pertain 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 Redlands arising out of or which is related to the incident which is the subject of the Lawsuit, Colburn shall indemnify, defend and hold Redlands harmless from any and all damages, including any attorneys' fees and costs, that result therefrom. 7. Colburn expressly waives the rights afforded 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. Colburn 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. Colburn 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 Colburn to fully, finally and forever settle and. release all such matters, and all claims related to those matters. 9. Colburn represents and warrants that he has not assigned or transferred,or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, demand, I .ca,1cmAerecments,,CoIbLIrII Settlement Agreernentmpd claims,costs,expenses,debts,controversies,damages,actions and causes of action released pursuant to this Agreement. Colburn also agrees to defend, indemnify and hold Redlands harmless against any obligation. liability, demand, 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 transfer or assignment or purported transfer or assignment. 10. Colburn 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 Z:I 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, signed by the Parties. The Parties shall not be bound by any representation, warranty, promise, statement or information, unless it is specifically set forth in this Agreement. 13. Failure of any Party to insist upon strict observance of, or compliance with all of the terms of this Agreement in one or more instances, shall not be deemed to be a waiver of a Party's right to insist upon such observance or compliance with the other terms of this Agreement. 14, This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Parties. 15. This Agreement has been jointly negotiated and drafted. The language of this 9 LA I In Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. 16. Each person executing this Agreement represents and warrants to the other signatories C) that they have the authority to execute this Agreement on behalf of the entity for whom they are signing this Agreement. Settlement A,,,reement.kvpd 17. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18. Should an action be brought to enforce or interpret the terms of this Agreement,the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs incurred in prosecuting the action. Plaintiff nrir Jerry C burn Dated: October ? 2003 CITY OF REDLANDS Su n Peppler, yor Pro Tem Attest: City Jerk E cai(ertn,AgreementslC'olburn Settlement Agreetnentw°pd 4