HomeMy WebLinkAboutContracts & Agreements_70-2013_CCv0001.pdf AGREEMENT OF SETTLEMENT AND
GENERAL RELEASE
1. PARTIES. The parties to this Agreement of Settlement and General Release VAgretment")are
Stephen W. Rogers C4PIaiutiff/Petitioner"), and City of Redlands("Defendant/Respondent").
2. RECITALS. This Agreement is made with reference to the following facts:
2.1:On April 25,2012,Petitioner submitted a letter to Respondent requesting certain public
records. Among other things,Petitioner requested an electronic copy ofthe City ofRedlands
Memorandum dated June 6, 2011 ("Memorandum"), captioned as an attorney-client
privileged memorandum,which was referenced in Exhibit"I"to the September 6,2011 Fifth
Amendment to the Agreement for the Provision of Professional Environmental Consulting
Services between Michael Brandman Associates and Respondent. On May 3, 2012.
Respondent refused to produce the Memorandum on the grounds that it represented attorney-
client privileged communications.
2.2:As a result of Respondent's refusal to turn over the Memorandum to Petitioner,a dispute
arose between the parties regarding whether or not Petitioner was entitled to the
Memorandum under the California Public Records Act. That dispute resulted in the civil
action currently pending in the San Bernardino County Superior Court, also known as
Stephen W Rogers v. City oj'Redlands et aL, Case No. CLADS 1206381.
2.3. It is the intention of the parties to hereto settle and dispose of,fully and completely,any
and all claims, demands, and causes of action existing as to the effective date of this
agreement,arising out of,connected with,or incidental to,the demands and cause or causes
of action reflected in the civil action referenced in Paragraph 2.2 above.
3. DISMISSAL: Concurrently with the execution of this Agreement, Petitioner shall dismiss, with
prejudice, the civil action referenced in Paragraph 2.2 above, in exchange for the Respondent's
agreement to waive the right to seek recovery of attorney's fees and costs incurred in the defense of
Petitioner's claims.
4. 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:
4.1: 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, which
arise out of any and all claims,demands,and cause or causes of action reflected in the civil
action referenced in Paragraphs 2.1 and 2.2 above.
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4.2:The other provisions of this Agreement notwithstanding,Petitioner is not releasing any
of his rights against Respondent that were not asserted in the civil action referenced in
Paragraph 2.2 above.
4.3:Each party to this Agreement specifically waives the benefit ofthe 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.
5. REPRESENTATIONSAND WARRANTIES: Each of the parties to this Agreement represents and
warrants to,and agrees with, each other party hereto, as follows:
5.1: Each party has received independent legal advice from his 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.
5.2: 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.
5.3: 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 he deems
necessary.
5.4: Each party or responsible officer thereof has read this Agreement and understands the
contents hereof.Each party executing this Agreement on its own behalf,or officer executing
this Agreement on behalf of a respective corporation, is empowered to do so, and, if
executing on behalf of a corporation, thereby binds such respective corporation.
5.5: 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 them, or that his/her 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
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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, promise made without the intention to perform,concealment of fact,
mistake of fact or law, or of any other circumstance whatsoever.
5.6: 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.
5.7: Each term of this Agreement is contractual and not merely a recital.
5.8: Each party 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 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 fiirtherance-of-sucfi 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.
5.9 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 SETTLEMENT- This Agreement affects 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.
7. MISCELLANEOUS:
7.1 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.
7.2 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
agreements and discussions. This Agreement may be amended only by an agreement in
writing,signed by the parties thereto.
7.3 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.
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7.4 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.
7.5 In the event of litigation relating to this Agreement, the prevailing party shall be
entitled to attorney's fees and costs.
7.6 This Agreement may be executed in counterparts, and when each party has signed and
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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.
7.7 This Agreement, consisting of four-pages, is made and entered into on and as of
2013, in Redlands, California, and is effective as of this date.
W. ROGER S PETE AGUILAR, MAYOR
CITY OF REDLANDS
APPROVED AS TO FORM AND CONTENT: ATTEST:
Ll
NO-
B PRJ1 G G CORPORATION SAM IRS' CIT- CLERK
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RKLE R0TDIGER AND SP'RIGGS
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