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HomeMy WebLinkAboutContracts & Agreements_118-2021RELEASE AND SETTLEMENT AG E i IFNT This Release and Settlement Agreement is entered into by and between Plaintiffs. Lyndon Grove and Sue Grove (hereinafter referred to as "Plaintiffs"), through their attorneys of record, the Law Offices of William D Shapiro, and Defendant City of Redlands, through their attorneys of record, Disenhouse Law APC by Bruce E. Disenhouse. Plaintiffs and Defendant are hereinafter referred to as "Parties," This Agreement is made with reference to the following facts: A. Plaintiffs have filed a Complaint for damages, negligence and premises liability, entitled Lyndon aruve=and. gusan :Cove v. Ca o:line Aitui et at, in the San Bernardino Superior Court, Case No. CI VDS 1609728, arising out of an incident which allegedly occurred on or about September 17, 2015 B The Parties hereto desire to settle and release, once and forever, the claims set forth in the operative Complaint on file herein. C The Parties each deny that either has breached any obligation to or have committed any wrong against the other or have damaged the other in any way D 1 t is the intentionand desire of the Parties that this Release and Settlement Agreement will settle any and all claims of any kind which the Parties may have against each other NOW, THEREFORE, in consideration of the foregoing and of the mutual promises herein contained, the Parties agree hereto as follows: 1. MUTUAL RELEASES A That Plaintiffs, being of lawful age, for the sole consideration of Eight Hundred Thousand Dollars ($800,000 00) as to Defendant City of Redlands, and other valuable consideration to the Plaintiffs in hand, paid receipt whereof is hereby acknowledged, does hereby and for themselves, their family, their beneficiaries, their heirs, their executors, their administrators, their personal representatives, agents, past or present legal representatives, their successors and assigns hereby release, acquit and forever discharge the City of Redlands, and its agents, servants, employees, successors, predecessors, partners, assigns, executors, heirs, administrators, insurers, representatives, attorneys, conservators, receivers, trustees and other fiduciaries organizations, of and from any and all claims, actions, causes of action in law or Confidential Mutual Settlement Agreement Page 1 of 9 equity, suits, debts, liens, contracts, agreements, promises, liabilities, demands, judgments, obligations, rights, datnages, losses, costs or expenses, interest, attomey's fees, loss of services, expenses and compensation whatsoever including general, special, compensatory, statutory and punitive damages known or unknown, whether in contract, tort or otherwise, which the Plaintiffs now has or which may hereafter accrue on account of or in any way growing out of any and all known and/or unknown, foreseen and/or unforeseen injuries, damages, loss of income and/or loss of earning capacity and the consequences thereof, including any and all liens (including Worker's Compensation liens, Medi-Cal liens, etc.), whether actual or asserted, present or prospective, resulting from the incident or event which occurred on or about the 17th day of September, 2015 at the intersection of University Street and E Citrus Avenue in the City of Redlands, State of California, which is the subject matter of the above referenced lawsuit in the San Bernardino Superior Court, Case No CIVDS1609728 The sum of $800,000 00 as to Defendant City of Redlands, shall constitute full and final settlement of any and all sums claimed to be due and owing from the Defendant to Plaintiffs, and no interest shall accrue on said full and final sum. B Defendant agrees to release and forever discharge Plaintiffs, and their agents, servants, employees, successors, predecessors, partners, assigns, executors, heirs, administrators, insurers, representatives, attorneys, conservators, receivers, trustees and other fiduciaries and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action in law or equity, suits, debts, liens, contracts, agreements, promises, liabilities, demands, judgments, obligations, rights, damages, losses, costs or expenses, interest, attomey's fees, loss of services, expenses and compensation whatsoeverinoluding general, special, compensatory, statutory and punitive damages known or unknown, whether in contract, tort or otherwise, which the Defendant now has or which may hereafter accrue on account of or in any way growing out of any and all known and/or unknown, foreseen and/or unforeseen injuries, damages, loss of income and/or loss of earning capacity and the consequences thereof, including any and all bens (including Worker's Compensation liens, Medi-Cal liens, etc:), whether actual or asserted, present or prospective, resulting from the incident or event which occurred on or about the 17th day of September, 2015 at the intersection of University Street and E Citrus Avenue in the City of Redlands, State of California, which is the subject matter of the ...:._a AIf ..,..:� Confidential Mutual Settlement Agreement Page 2 of 9 above referenced lawsuit, in the San Bernardino Superior Court, Case No CIVDS1609728 and any and all related pleadings. 2. APPLY TO ALL RIGHTS This settlement is intended to apply to any and all rights, claims, demands and damages of any kind, whether known or unknown, resulting from any alleged injuries or damages, emotional distress or otherwise. This settlement includes any and all claims against Defendant City of Redlands only, whether or not said claims are set forth in Plaintiffs operative Complaint. 3. BAR FOR.. SUBROGATION The Parties acknowledge that this settlement shall operate to bar any claims for subrogation by any insurance carrier having paid claims to or on behalf of the Plaintiff 4. l lON.ADMJSS.XON OF LIABJLITY It is understood and agreed that this settlement is the compromise of a disputed claim, that the payment made is not to be construed as an admission of liability on the part of Defendant City. of Redlands and that Defendant City of Redlands denies liability therefor and intends merely to avoid litigation and buy its peace; Plaintiffs hereby assume the risk of any damages, losses or injuries which may now be latent or unexpected, or which may hereafter appear, develop or occur as a result of said loss and claim as to Defendant City of Redlands only 5. WAIVER OF CIVIL CODE SECTION 1542 As to the claim by Plaintiffs against Defendant City of Redlands only, the Parties expressly waive and relinquish any and all rights under any law or statute to the contrary It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby expressly waived Said section reads as follows. "I542. Certain claims not affected by general release. 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. ACKNOWLEDGMENTENT OF CIVIL CODE, SECTION i5.42 WAIVER The Parties acknowledge and agree that the waiver ofCalifornia Civil Code Section 1542 is an essential and material term of this Release and Settlement Agreement and the settlement which led to it, and that without such waiver, the Parties would not have entered into such Confidential Mutual Settlement Agreement Page 3 of 9 settlement. The Parties understand and acknowledge the significance and consequence of this Release and Settlement Agreement and of the specific waiver of California Civil Code Section 1542. 7 SETTLEMENT IS FAIR AND EQUITA13 ,E Plaintiffs consider that the money now being paid is fair and equitable under all circumstances and accept it as full and final settlement of all claims, rights and damages which Pe now has or may have against Defendant City of Redlands only, its agents or representatives. Plaintiffs understand and acknowledge that a portion of the consideration received has been paid for each of the covenants, promises and terms set forth in this Release and Settlement A greement. S. RELIANCE UPON OWN PARTY'S JUDGMENT Plaintiffs hereby declare and represent that tke_inju iesiustained aree_or_rnay_be permanent and progressive, that recovery therefrom is uncertain and indefinite, and in making this Release and Settlement Agreement, it is understood and agreed that the Plaintiffs rely wholly upon the their judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor, and that the Release and Settlement Agreement is made without reliance upon any statement or representation. of Defendant or their representatives, g. NO RELIANCE Plaintiffs acknowledge and represent that in signing this Release and Settlement Agreement, they have not relied on any statements, promises, representations or warranties made by Defendant and/ortheir attorneys of record as to any matter, including, but not limited to, the value of Plaintiffs claims, demands, causes of action, rights herein released, facts of the occurrence or nature or the extent of the damages. Plaintiffs further acknowledge and represent that they have considered all of these matters, and that they have conducted a full and complete investigation of all such matters before executing this Release and Settlement Agreement. 10, ,10 PROMISES The Plaintiffs further declare and represent that no promise, inducement or agreement not herein expressed has been made to the Plaintiffs, that this Release and Settlement Agreement contains the entire agreement between the Parties hereto, and that the terms of this Release and Settlement Agreement are contractual and not a mere recital. Confidential Mutual Settlement Agreement Page 4 of 9 11. LEGAL ADVICE The Parties hereby declare and represent that they are accepting this settlement and entering into this Release and Settlement Agreement following, and as a result of, having received full legal advice from their respective attorneys regarding their rights and liabilities The Parties further declare and represent that they have relied upon the ad vice of their attorneys, who are the attorneys of their own choice, concerning the legal and income tax consequences of this Release and Settlement Agreement, that the terms of this Release and Settlement Agreement have been completely read and explained to the Parties by their attorneys; and that the terms of this Release and Settlement Agreement are fully understood and voluntarily accepted by the Parties. 12. DIScIA1,MElt'f AT OTJrFRs i AVE ANY INTER EST_IN ANY CLAIM The Parties hereby declare,iepresen.t_andwarranthat no other -person or=entity-has, or has had, any interest in the claims, demands, obligations or causes of action referred to in this Release and Settlement Agreement, except as otherwise set forth herein, that the Parties have the sole right and exclusive authority to execute the Release and Settlement Agreement and receive the sum specified in it, and that the Parties have not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Release and Settlement Agreement. 13 ATTORNEY'S FEES If any legal action or other proceeding is brought for enforcement of this Release and Settlement Agreement, or for a declaration of rights and duties hereunder, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Release and Settlement Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and/or costs incurred in connection with the action or proceeding in addition to any other relief to which the party may be entitled 14. INURE TO THE B3ENEI+IT OF OTHERS This settlement shall be and is hereby binding upon and shall inure only to the benefit of the Parties hereto and their respective parents, subsidiaries, related entities, predecessors, successors, heirs, estates, assigns, executors, trustees, officers, directors, shareholders, partners, employees, servants, agents, attorneys and representatives, and not to any other party to this action Confidential Mutual Settlement Agreement Page 5 of 9 15. ;CON TRUCTION Oi! AGREEMENT This Release and Settlement Agreement shall be construed and enforced as a whole in accordance with its meaning and in accordance with the laws of the State of California in effect at the time of its execution. In the event of vagueness orarnbiguity, this Release and Settlement Agreement shall not be construed agamst the party preparing it but shall be construed as if all Parties prepared it jointly The headings used herein are for reference and/or convenience only and shallnot affect the construction of Phis Release and Settlement Agreement. 16. COUNTERPARTS AND FACSIMILE SIGNATURE This Release and Settlement Agreement may be executed in counterparts and shall be deemed fully executed when each party has signed and transmitted a counterpart to the other All counterparts taken together shall constitute a single agreement. A facsimile transmission signature shall have the same force -and effect as an original signature 17. cry MITERDOCUIWWNT All of the Parties hereto, by their respective attorneys, shall execute and hereafter properly file such orders, pleadings or other papers as shall be necessary, proper or required to accomplish the full and final dismissal with prejudice of the operative Complaint in the within action. All Parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Release and Settlement Agreement. 18. EAC'B.PA.RT.Y TO BEAR ATTORNEY'S FEES AND COSTS Each Party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel, if any, in connection with this Release and Settlement Agreement, the matters and documents referenced to herein and all related matters, 19 »EFAMATORY OR DEROGATORY COMMENTS The Parties agree to refrain from making any defamatory or derogatory comments or statements, whether written or oral, about each other 20. yVAIVER,MODIFICATION AND AMENDMENT No provision hereof may be waived unless in writing signed by all parties hereto Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. This Release and Settlement Agreement may be modified or amended only by written agreement Confidential Mutual Settlement Agreement Page 6 of 9 executed by all of the Parties hereto, which signed writing must state the clear intention of the parties to amend this Release and Settlement Agreement. 21. SE'VERABILITY If any provision of this Release and Settlement Agreement shall be adjudged void or unenforceable, the same shall not affect the validity of the Release and Settlement Agreement as a whole, 22. ENTIRE AGREEMENT This Release and Settlement Agreement contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments and understandings related hereto are hereby merged herein. No representations, oral or otherwise, express or implied, other than those contained herein have been made by any p ra yhr to. 23. INDEMNITY Plaintiffs agree to hold Defendant City of Redlands harmless from, and defend and indemnify Defendant City of Redlands from, the claims of any and all medical care providers and/or lienholders, including but not limited to Medicare or MediCal, providing medical services to Plaintiffs as a result of the subject accident. 24. ENFORCEABILITY This Release and Settlement Agreement shall not be subject to attack on the ground that any or all legal theories or factual assumptions used fornegotiatmg purposes are for any reasons inaccurate or inappropriate, ' 25. COOPERATION The Parties hereto agree to cooperate in the execution of all documents and the undertaking of all acts necessary to effectuate the purposes of this Release and Settlement Agreement, FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS FORM. " IT IS UNLAWFUL TO (A) PRESENT OR CAUSE TO BE PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF LOSS UNDER A CONTRACT OF INSURANCE AND (B) PREPARE, MAKE OR SUBSCRIBE ANY WRITING WITH INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM, ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNISHABLE BY IMPRISONMENT IN TFIE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS (S1,000) OR BOTH," Confidential Mutual Settlement Agreement Page 7 of 9 26. MiSCiLLANI ()US A. 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, B 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 C 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, D 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 E In the event of litigation relating to this Agreement, the prevailing party shall be entitled t0 attomey's fees and costs. F The San Bernardino Superior Court reserves jurisdiction to enforce the terms and conditions of the AGREEMENTpursuant to California Code of Civil Procedure Section 664 6 upon noticed motion of any party G This Agreement, consisting of nine pages, is made and entered into on and as of June , 2021, in San Bernardino, California, and is effective as of this date. THE PARTIES HAVE READ THE FOREGOING CONFIDENTIAL MUTUAL SETTLEMENT AGREEMENT AND FULLY UNDERSTAND IT r Date Date BY BY DON K. GR`bV Plaintiff 'SUE GROVE, Plaintiff Confidential Mutual Settlement Agreement Page 8of9 Date' 7 g 2 1 BY: Date 7f g12/ AP ROVED AS TO FOIv1 AND CONTENT ILLI.AMSHAP1f R Attorney for 'Platriktffs Lyndon K. and Suc Grove BY: CITY OF ' DLANDS PAUL BARICH, Mayor At ILSTATION E DONALDSON, Redlands City Clerk BR CE E. DISENHOUSE Attorney for Defendant City of Redlands Confidential Mutual Settlem ent Agreement Page 9 of 9