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HomeMy WebLinkAboutContracts & Agreements_1-2005_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is entered into by and between Kimberley Coles and Steven Wuhs ("Coles/Wuhs"), and City of Redlands ("City") who are sometimes referred to herein as the "Parties." RECITALS A. On or about October 20, 2004, Coles/Wuhs allege that a sewer backup occurred in their house located at 723 Coronado Drive, Redlands, California resulting in claimed damages. Coles/Wuhs thereafter filed a Government Tort Claim with City dated November 16, 2004. 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 Coles/Wuhs may have against the City that arise from, or are related to, the incident which is the subject of the Claim. C. This Agreement is a compromise of the claims asserted by Coles/Wuhs 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. City shall pay to Coles/Wuhs the sum of Twelve Thousand Four Hundred Forty- two Dollars and Seventy-eight cents ($12,442.78) and within thirty (30) days from the date City has executed this Agreement. The payment shall be made by check payable to Kimberley Coles and Steven Wuhs. 3. The Parties shall bear their own attorneys' fees and costs, if any, incurred in connection with the Claim, 4. Coles/Wuhs, on behalf of themselves and their respective attorneys, representatives, assigns, heirs and successors-in-interest hereby release and forever discharge 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 Claim. If any lawsuit has been filed by Coles/Wuhs or their agents and/or assigns arising out of this Claim as to City, said lawsuit shall be immediately dismissed with prejudice and said dismissal shall be served on City before any Settlement check is issued to Coles/Wuhs. C'Documents and Settings\Sue%Local Settings,Temporary Internet Files\Content,IE5',OL2ROIJF",Settlement Coles,Wuhs,doc 5, Coles/Wuhs represent and warrant that they have the legal authority to settle any and all causes of action and claims they may have against the City which relate or pertain to the Claim. By executing this Agreement, Coles/Wuhs hereby release and waive all claims or causes of action which in any way relate to the Claim. To the extent any person or entity should file, subsequent to the execution of this Agreement, any claim or cause of action against City arising out of, or which is related to, the incident which is the subject of the Claim, Coles/Wuhs shall indemnify, defend and hold City harmless from any and all damages, including any attorneys' fees and costs that result therefrom. 6. Coles/Wuhs expressly waive the rights afforded them under Civil Code section 1542 which provides that: Ageneral 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. 7. Coles/Wuhs represent and warrant that they have received the advice of their Attorney of Record with respect to the advisability of making the release provided for herein and the meaning of Civil Code section 1542. Coles/Wuhs are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of Coles/Wuhs to fully, finally and forever settle and release all such matters, and all claims related to those matters. & Coles/Wuhs represent and warrant that they have 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. Coles/Wuhs 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. 9. Coles/Wuhs acknowledge that they have read this Agreement; that they have had the Agreement explained to them by counsel of their choice; that they are aware of the content and legal effect of the Agreement; that they are acting on the advice of counsel of their choice; and that they are not relying on any representations made by any other party or any of the employees, agents, representatives, or attorneys of any other party. 10. The Parties agree to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. C:'Docurnents and Setting-SueTocal Settings,Ternporary Internet Files'content,IE5,,OL2ROLIF,,Settlement Coles.Wuhs,doc 2 a 11. 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. 12. This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Parties. 13. This Agreement has been jointly negotiated and drafted. 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 Parties. 14. 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. 15. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 16. 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, including in-house Counsel at rates prevailing in San Bernardino County, California. PLAINTIFFS Dated: ?,0 0 Z' Z4�_ Kimberley Coles Dated: " '�EO C 2 o - Steven Wuhs � — CITY OF REDL S Dated: Jan.. 4, 2005 SUS P eppler,, Mayo Attest: orris Poyz�r £ i Clerk C:U -uments and SettingstSue.Loeal Settingsi'remporary Internet EilesiContent.IES`QL2ROLLIF"�Settle ent Coles,Wuhs.do: .3