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HomeMy WebLinkAboutContracts & Agreements_54-2015_CCv0001.pdf AGREEMENT OF SETTLEMENT AND GENERAL RELEASE 1. PARTIES: The parties to this Agreement of Settlement and General Release ("Agreement") are CLARISSE FISHER, BY AND THROUGH HER GUARDIAN AD LITEM SAMIA FISHER("Plaintiff'), and CITY OF REDLANDS ("Defendant"). 2. RECITALS: This Agreement is made with reference to the following facts: 2.1 Certain disputes and controversies have arisen between the parties hereto. 2.2 Such disputes and controversies include, but are not limited to, the claims, demands and cause or causes of action set forth by the parties hereto in a civil action pending in the San Bernardino County Superior Court and entitled Samia Fisher v. City of Redlands, et al., Case No. CIVDS 1305121. 2.3 It is the intention of the parties hereto to settle and dispose of, fully and completely, any and all claims, demands and cause or causes of action existing as of the effective date of this Agreement and arising out of, connected with, or incidental to the dealings between the parties hereto prior to the effective date hereof including, without limitation on the generality of the foregoing, any and all claims, demands and cause or causes of action reflected in the civil action referenced in Paragraph 2.2 above. 3. DISMISSAL: Subsequent to the execution of this Agreement and approval by the Court of a Minor's Compromise Petition, Plaintiff Clarisse Fisher, through her guardian ad litem Sarnia Fisher, shall dismiss, with prejudice, her claim in the civil action referenced in Paragraph 2.2 above, in exchange for the promises, covenants, conditions and payments set forth in Paragraph Four. 4. PAYMENT: Subsequent to the execution of this Agreement as well as approval by the Court of a Minors Compromise Petition, Defendant shall pay to Plaintiff, through her guardian ad litem, Sarnia Fisher, pursuant to order of this court, the aggregate sum of Five Thousand Dollars ($5000.00). 5. GENERAL RELEASE: In consideration of the mutual general releases contained herein, and for other good and valuable consideration, the receipt of which is acknowledged by each party hereto, the parties promise, agree and generally release as follows: 5.1 Except as to such rights or claims as may be created by this Agreement, each party hereto hereby releases, remises and forever discharges each other party hereto from any and all claims, demands and cause or causes of action existing as of the effective date hereof and arising out of, connected with or incidental to the dealings between the parties hereto prior to the effective date hereof including, without limitation on the generality of Agreement of Settlement and General Release Page 1 the foregoing, any and all claims, demands and cause or causes of action reflected in the civil action referenced in Paragraph 2.2 above. 5.2 Each party to this Agreement specifically waives the benefit of provisions of Section 1542 of the Civil Code of the State of California, as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 6. REPRESENTATIONS AND WARRANTIES: Each of the parties to this Agreement represents and warrants to, and agrees with, each party hereto, as follows: 6.1 Each party has received independent legal advice from its attorneys with respect to the advisability of making the settlement provided for herein, with respect to the advisability of executing this Agreement, and with respect to the meaning of California Civil Code Section 1542. 6.2 No party(nor any officer, agent, employee, representative, or attorney of or for any party), has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and each party does not rely upon any statement, representation, omission or promise of any other party (or of any officer, agent, employee, representative, or attorney of or for any party), in executing this Agreement, or in making the settlement provided for herein, except as expressly stated in this Agreement. 6.3 Each party to this Agreement has made such investigation of the facts pertaining to this settlement and this Agreement, and all the matters pertaining thereto, as it deems necessary. 6.4 Each party or responsible officer thereof has read this Agreement and understands the contents hereof. Each of the officers executing this Agreement is empowered to do so and thereby binds such party. 6.5 In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith including, without limitation on the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be and is final and binding between the parties hereto, regardless of any claims of misrepresentation, Agreement of Settlement and General Release Page 2 promise made without the intention to perform, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever. 6.6 Each party has not heretofore assigned, transferred, or granted, or purported to assign, transfer, or grant, any of the claims, demands, and cause or causes of action disposed of by this Agreement. 6.7 Each term of this Agreement is contractual and not merely a recital. 6.8 Each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties to fully, finally and forever to settle and release all such matters, and all claims relative thereto, which do now exist, may exist, or heretofore have existed between them. In furtherance of such intention, the releases given herein shall be and remain in effect as full and complete mutual releases of all such matters, notwithstanding the discovery of existence of any additional or different claims of facts relative thereto. 6.9 The parties will execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this Agreement. 6.10 Plaintiff and her guardian ad litem agree to hold Defendant harmless from, and defend and indemnify Defendant from, the claims of any and all medical care providers and/or lienholders, including but not limited to Loma Linda University Medical Center, Medicare or MediCal, providing medical services to Plaintiff as a result of the subject accident. 7. SE77LEMENT: This Agreement effects the settlement of claims which are denied and contested, and nothing contained herein shall be construed as an admission by any party hereto of any liability of any kind to any other party. Each of the parties hereto denies any liability in connection with any claim and intends hereby solely to avoid litigation and buy its peace. 8. MISCELLANEOUS: 8.1 This Agreement shall be deemed to have been executed and delivered within the State of California and the rights and obligations of the parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 8.2 This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written Agreement of Settlement and General Release Page 3 agreements and discussions. This Agreement may be amended only by an agreement in writing, signed by the parties thereto. 8.3 This Agreement is binding upon and shall inure to the benefit of the parties hereto, their respective agents, employees,representatives, officers, directors, divisions, subsidiaries, affiliates, assigns, heirs, successors in interest and shareholders. 8.4 Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party. 8.5 In the event of litigation relating to this Agreement, the prevailing party shall be entitled to attorney's fees and costs. 8.6 This Agreement may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all parties. 8.7 This Agreement, consisting of four pages, is made and entered into on and as of Mt4l. 25 2015, in Redlands, California, and is effective as of this date. fJ11A SAMIA FISHER AS GUARDIAN AD LITEM FOR CLARISSE FISHER CITY OF REDLANDS PAUL FOSTER, Mayor ATTEST: "I--- A — SAM IRWIN, City Clerk APPROVED AS TO FORM AND CONTENT: Agreement of Settlement and General Release Page 4 JUIM, Att ney for CLARISSE FISHER BRUCE E. DISENHOUSE, Attorney for THE CITY OF REDLANDS Agreement of Settlement and General Release Page 5