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Home My WebLink AboutContracts & Agreements_46-1993_CCv0001.pdf SETTLEMEN2! SAg-REEMENT This Settlement and General Release Agreement ("Agreement and Release") is entered into this 7th day of December, 1993, by and between CITY OF REDLANDS (the "City") , on the one hand, and MICHAEL McCLAURY and JOHN SUVERKRUP LUMBER CO. (hereinafter collectively referred to as the "McClaury Defendants") , on the ether hand. Berth of the above are collectively referred to as "Agreeing Parties". RECITALS A. On or about September 15, 1991, Redlands Police Officer Vonn Layel, an employee of the City of Redlands, was driving his police vehicle westbound on Redlands Boulevard approaching the intersection of Redlands Boulevard and Texas Street in the City of Redlands. At approximately the same time, while within the course and scope of his employment with John 5uverkrup Lumber Company, Michael McClaury was driving his vehicle southbound on Texas Street approaching the same intersection. B. Thereafter, the vehicles driven by Officer Layel and Mr. McClaury collided at the intersection of Redlands Boulevard and Texas Street (the "Incident") . C. On or about February 26, 1993, the City filed the present and pending action (the "Complaint") , San Bernardino Municipal Court Case No. REGI 031647, against the McClaury Defendants alleging a cause of action for negligence. On March 11, 1993, the City PIED 143830 personally served the McClaury Defendants with the Complaint. This action is currently pending. D. On or about April 1, 1993, the McClaury Defendants filed a cross-complaint against the City alleging causes of action for indemnification, apportionment of fault, declaratory relief, and negligence (the "Cross-complaint") . On April 12, 1993, the McClaury Defendants served the City with the Cross-complaint. E. The Agreeing Parties each desire to settle issues raised in or related to the Complaint and Cross-complaint, and recognize that further litigation, or potential litigation, as among themselves shall require substantial time, effort and expense unless such litigation is settled and terminated between them now at this time. F. Each of the Agreeing Parties acknowledges that the settlement reached between these is a compromise resolution of disputed claims, and that the settlement shall not be construed for any purpose as an admission of fault, liability, or wrongdoing. PDD 193830 -2_ i r ACRE • E NOW, THEREFORE, in consideration of the following respective covenants and their faithful and timely performance, the City of Redlands and the McClaury Defendants, each agree as follows; 1. Counterpart originals of this Agreement and Release, signed by authorized representatives of the respective Agreeing Parties and their attorneys identified below, shall be delivered to the opposing attorneys, at the addresses listed below, on or before December 31, 1993. 2. Upon receipt by the Law Offices of Dallas Simmons, Juliet W. Gibson, Esq. , 500 North State College Boulevard, Suite 900, orange, California 92663, of the City of Redlands' fully executed counterpart original(s) of this Agreement and Release as provided above, the McClaury Defendants shall cause their attorneys to promptly sign the original of the Request for Dismissal in the form attached as Exhibit A, requesting dismissal of the cross- complaint filed in Case No. REGI 01647, with prejudice and without costs. The Law Offices of Dallas Simmons shall promptly deliver to Best, Best & Krieger the fully executed original of the Request for Dismissal. 3. Upon receipt by the City of Redlands, in care of Best, Best & Krieger, Patrick D. Dolan, Esq. , 400 Fission Square, PDD 193830 i r ur 3750 University Avenue, Riverside, California 92501, of the IcClaury Defendants' fully executed counterpart original(s) of this IN r Agreement and Release and the fully executed original of the 3 Request for Dismissal as provided above, the City shall cause its attorneys to promptly sign and file with the clerk of the Municipal Court of San Bernardino (with a concurrent signed copy mailed to the Law Offices of Dallas Simmons at the above address) , the original of the Request for Dismissal in the form attached as Exhibit A, requesting dismissal of Case No. REGI 01647, with prejudice and without costs. Upon receipt, Best, Best & Krieger shall promptly deliver to the Law Offices of Dallas Simmons a conformed copy of the Request for Dismissal as filed with the Court. 4. Upon receipt by the Law Offices of Dallas Simmons, Juliet W. Gibson, Esq. , 500 North State College Boulevard, Suite 900, Orange, California 92668, of the City of Redlands's fully executed counterpart original(s) of this Agreement and Release and a conformed copy of the Request for Dismissal as filed with the Court, the McClaury Defendants shall promptly pay to the City of Redlandds, in the fort of a cashiers check, the amount of $13,500.00. 5. Upon full performance of the actions that are required to be taken by the City of Redlands and the McC awry Defendants pursuant to this Agreement and. Release, the City of Redlands and the M Claury Defendants do hereby release and. hold PDD 143830 -4 3 each other harmless and forever discharge each other, their officers, directors, employees, employers, and attorneys of and from any and all claims, demands, causes of action, costs of suit, obligations, damages and liabilities, whether known or not known, asserted or not Yet asserted, suspected, or claimed, which the City of Redlands and the McClaury Defendants may have or claim to have against each other, by reason of any act, failure to act, cause, matter or event whatsoever, related to the Agreement and/or the issues and subject matters encompassed within the Complaint, Cross- complaint and/or the Incident. 6. The City of Redlands and the McClaury Defendants each acknowledge that they are familiar with Section 1542 of the California Code of Civil Procedure, which section provides 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. " The City of Redlands and the McClaury Defendants each expressly waive and relinquish any right or benefit which they, each of them, has or may have under Section 1542 with respect to the subject matters encompassed in this Agreement and Release. 7. The release in this Agreement and Release shall extend and inure to the benefit of and be binding upon each released party and also to their successors and assigns. Each Agreeing Party warrants that it has not assigned away any of the PDD 1938.30 -5- z matters released above in this Agreement and Release and hereby agrees to indemnify the other Agreeing Parties for any damages caused by any breach of said warranty. S. The Agreeing Parties hereby represent and warrant that they have sought the advice and counsel of their attorneys and they are relying solely on such advice. 9. This Agreement and Release cannot be modified except by written document signed by all of the Agreeing Parties. 24. This instrument comprises the entire understanding between the Agreeing Parties concerning the subject matter of this Agreement and Release and supersedes and replaces all prior negotiations, proposed agreements, written and oral. There are no other contracts, understandings, representations or warranties made by any other party to the Agreement and Release except as expressly contained in this Agreement and Release. 11. This Agreement and Release may be executed in counterparts by the Agreeing Parties hereto and shall become effective and binding upon the parties at such time as all of the parties hereto have signed a counterpart of this Agreement and Release. All counterparts so executed shall constitute one Agreement, binding upon all the Agreeing Parties hereto, notwithstanding that all Agreeing Parties are not signatory to the original or the same counterpart. PDD193830 -6- 12. This Agreement and Release shall in all respects be interpreted, enforced, and governed by and under the laws of the State of California. 13. This Agreement and Release has been mutually drafted. The language of this Agreement and Release shall be construed as a whole according to a fair meaning, and not strictly for or against any of the Agreeing Parties. 14. The Agreeing Parties shall each bear their own respective attorneys, fees and costs. 15. In the event that any Agreeing Party breaches this Agreement and Release, the breaching party or parties shall pay each non-breaching party all costs of any action or proceeding for damages and/or enforcement, including reasonable attorneys' fees and costs. DATED:-December 7, 1993 THE CITY OF RED DS </ Mayor, City of Redlands DATED:_ MICHAEL McCLAURY By: Michael McClaury DATED: JOHN SUVERKRUP LUMBER COMPANY By: John Suverkrup PDD 193830 -7- APPROVED AS TO FORM AND CONTENT: DATED• BEST, BEST & KRIEGER 400 Mission Square 3750 University Ave. Riverside, CA 92502 By: Howard B. Golds, Esquire Patrick D. Dolan, Esquire Attorneys for City of Redlands APPROVED AS TO FORM AND CONTENT: DATED: LAW OFFICES OF DALLAS SIMMONS 500 North State College Boulevard Suite 900 Orange, CA 92668 By:Juliet W. Gibson, Esquire Attorneys for Michael McClaury and John Suverkrup Lumber Company PDD 393830