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HomeMy WebLinkAboutContracts & Agreements_34-2005_CCv0001.pdf SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is entered into by and between Victoria KouyoumJian ("Claimant") and the City of Redlands ("City") in connection with the settlement of that certain Claim for property damage filed by Claimant with the City on April 20, 2004, and to resolve and release City from future claims as they relate to water runoff from Cedar Avenue to Claimant's property located at 1106 Cedar Avenue. City and Claimant, are sometimes referred to herein as the "Parties." RECITALS A. It is alleged by Claimant that on or about April 1, 2004, a rainstorm occurred which resulted in water from Cedar Avenue flowing onto Claimant's property located at 1106 Cedar Avenue, Redlands (the "Property"), causing property damage. As a result, Claimant filed a claim dated April 20, 2004 ("Claim") for damages to her property. It is contended that water damage will continue to occur if certain improvements are not made to the Property. 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 the Parties may have against the other, for now and in the future, that arise fron-4 or are related to the incident which is the subject of the current Claim and potential future claims related to the same source, water run-off from Cedar Avenue to the Property. C. This Agreement is a compromise of the Claim dated April 20, 2004 asserted by the Claimant and a release of City from future related claims, and shall not be treated as an admission of liability by any Party. AGREEMENT 1. The Parties agree that the Recitals are true and correct, and incorporate the Recitals into this Agreement. 2. City shall pay to Claimant the sum of Twenty Four Thousand One Hundred Seventy-eight and 05/100 dollars($24,178.05)to settle Claimant's Claim and to compensate Claimant for certain improvements to Claimant's Property. Claimant agrees that she shall make the required improvements, as set forth herein, to the Property. Such sum shall be due and payable upon the verification of compliance with the improvements to be made to the Property and by no later than thirty (30) days after verification of said compliance. The payment of such sum shall be completed upon presentation of a valid check in the, amount of $ 24,178.05 to Claimant and/or Claimant's attorney and verification by the City that the required improvements have been completed. The improvements that shall be constructed by Claimant are described in the attached Exhibit "A." Claimant ffirther agrees that because City is paying for said improvements to Claimant's Property, Claimant hereby forever discharges, releases and waives her current Claim and her right to make a claim against the City hereinafter for water damage for water runoff that may flow onto Claimant's Property from Cedar Avenue. Claimant shall notify City's Public Works Department when the improvements are completed so City can inspect and verify compliance with this Agreement. 3. The Parties shall bear their own attorneys' fees and costs incurred in connection with the Claim. 4. Claimant, on behalf of herself, her respective agents, attorneys, employees, representatives, assigns and successors-in-interest hereby releases and forever discharges City and its elected officials, officers, employees, assigns and successors-in- interest from any and all claims, causes of action, damages, losses, liabilities 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 is the subject of the Claim and any future claims as specified in this Agreement. 5. Claimant represents and warrants that she has the legal authority to settle any and all causes of action and claims she may have against City with regard to any and all claims and/or causes of action which relate to the Claim. By executing this Agreement, Claimant hereby releases and waives all claims or causes of action which in any way relate to the Claim and this Agreement. To the extent any person or entity should file, subsequent to the execution of this Agreement, any claims and/or causes of action against City arising out of or which are related to the facts and issues released herein, Claimant shall indemnify, defend and hold City harmless from any and all damages, including any attorneys' fees and costs,that result therefrom. 6. Claimant expressly waives the rights afforded her 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. 7. Claimant represents and warrants that she has received, or has had the opportunity to receive, the advice of legal counsel of her choice with respect to the advisability of making the release provided for herein, and the meaning of California Civil Code section 1542. Claimant is aware that she 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 Claimant to fully, finally, and forever settle and release all such matters, and all claims related to those matters which are the subject of this Agreement. 8. Claimant represents and warrants that she has not assigned or transferred or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, demand, claims, costs, expenses, debts, controversies, damages, actions and causes of action released pursuant to this Agreement. Claimant shall indemnify, defend and hold City 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. 9. The Claimant acknowledges that she has read this Agreement;that she has had the Agreement explained to her by counsel of her choice; that she is aware of the content and legal effect of the Agreement; that she is acting on the advice of counsel of her choice; and that she is not relying on any representations made by any other party or any of the employees, agents, representatives, or attorneys of any other party, or any of them. 10. The Claimant agrees to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. 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 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. 12. 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. 13. This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 14. 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. 15. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 16. 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. Dated: CLAINJANT ictoria Kouyo aian Dated: March 1, 2005 CITY 4F REDLANDS s Su-4 Peppler, Mayor ATTEST: LorykPoyzer, Cit r Exhibit"A" Corrective Improvements to be installed by Claimant at 1106 Cedar Avenue The following is a:list of improvements that shall be constructed by Claimant to salve the potential f©r flooding at 11136 Cedar Avenue. The main effort is to create a positive drainage flow through the property and under the west side gate (the "drainage systerw') at 1106 Cedar Avenue, Redlands. 1. Reconstruct the existing driveway from the driveway approach to the garage and slope said driveway in a westerly direction to direct flows away from the front door area and garage area and into the backyard, with the understanding that Claimant's backyard may become inundated with water, with no liability for this consequence to City if it occurs. 2. Provide for ongoing maintenance of the drainage improvements to prevent any clogging of the drainage system.