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HomeMy WebLinkAboutContracts & Agreements_156-2021RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement is entered into by and between Plaintiff Christine Jimenez (hereinafter referred to as "Plaintiff.), through their attorneys of record, Raynes Erickson, and Defendant City of Redlands, through their attorneys of record, Disenhouse Law APC by Bruce E Disenhouse Plaintiff 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 Christine Jimenez v. Cijy of Redlands, in the San Bernardino Superior Court, Case No CIVDS1904355, arising out of an incident which allegedly occurred on or about April 8, 2018 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 It is the intention and desire of the Parties that this Release and Settlement Agreement will settle any and all claims °limy 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 Plaintiff, being of lawful age, for the sole consideration of Two Hundred Twenty -Dive Thousand Dollars ($225,000 00) as to Defendant City of Redlands, and other valuable consideration to the Plaintiff in hand, paid receipt whereof is hereby acknowledged, does hereby and for herself, her family, her beneficiaries, her heirs, her executors, her administrators, her 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 equity, suits, debts, liens, contracts, agreements promises, liabilities, demands, judgments, obligations, rights, damages, losses, costs or expenses, interest, attorney's fees, loss of services, Mutual Settlement Agreement Page 1 of 9 expenses and compensation whatsoever including general, special, compensatory, statutory and punitive damages known or unknown, whether in contraLt, tort or otherwise, which the Plaintiff 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 8th day of April, 2018 at 4 E Cypress 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 CTVDS1904355 The sum of $225,000 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 Plaintiff, and no interest shall accrue on said full and final SUM. Defendant agrees to release and forever discharge Plaintiff, and her agents, serk, ants, employees, successors, predecessors, partners, assigns, executors, heirs, administrators, insurers, representauves, 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, hens, contracts, agreements, promises, liabilities, demands, judgments, obligations, rights, damages, losses, costs or expenses, interest, attorney 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 :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, dainages, loss of income and/or loss of earning capacity and the consequences thereof, including any and all liens (including Worker s Compensation liens, Mecli-Cal liens, etc ), whether actual or asserted, present or prospective, resulting from the incident or event which occurred on or about the 8th day of April, 2018 at 4 E Cypress 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 CIVDS1904355 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, Mutual Settlement Agreement Page 2 of 9 emotional distress or otherwise This settlement includes any and all claims against Defendant City or Redlands only, whether or not said claims are set forth in Plaintiff's 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. NON-ADMBSION OF LIABILITY 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 Plaintiff hereby assumes 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 or Redlands only 5. WAIVER OF CIVIL CODE, SECTION 1542 As to the claim by Plaintiff against Defendant City of Redlands only, the Parties expressly waive and relinquish any and all rights under any law or statute to th.e contrary ft 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 "1542. 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 hint or her Must have materially affected his or her settlement with the debtor " 6. ACKNOWLEDGMENT OF CIVIL CODE, SECTION 1542 WAIVER The Parties acknowledge and agree that the waiver of California Civil Code Section 1542 is an essential and material tenn 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 settlement. The Parties understand and acknowledge the significance and consequence or this Release and Settlement Agreement and o1 the speci tic waiver of California Civil Code Section [542 Mutual SettlementAgreement Page 3 o 7 SETTLEMENT IS FAIR AND EQUITABLE Plaintiff considers 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 she now has or may have against Defendant C ity of Redlands only, its agents or representatives Plaintiff understands and acknowledges 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 Agreement 8. RELIANCE UPON OWN PARTY'S JUDGMENT Plaintiff hereby declares and represents that the injuries sustained are or may 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 Plaintiff relies wholly upon her judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor, and that the Release and Settlement Agreernent is made without reliance upon any statement or representation of Defendant or their representative,. 9 NO RELIANCE Plaintiff acknowledges and represents that in signing this Release and Settlement Agreement, she has not relied on any statements, promises, representations or warranties made by Defendant and/or their 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. Plaintiff further acknowledges and represents that She has considered all of these matters, and that she has conducted a full and complete investigation of all such matters befort executing this Release and Settlement Agreement. 10 NO PROMISES The Plaintiff further declares and represents that no promise inducement or agreement not herein expressed has been made to the Plaintiff that th.is 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 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 Mutual Settte nt Agreement Page 4 of 9 received full legal advice from their respective attorneys regarding their rights and liabilities "Me Parties further declare and represent that they have relied upon the advice 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 Cully understood and voluntarily accepted by the Parties. 12. DISCLAIMER THAT OTHERS HAVE ANY INTEREST IN ANY CLAIM The Parties hereby declare, represent and warrant that no other person or entity has, or has had, any interest in the claims, demands, obligations or causes of action refined 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 aetion referred to in this Release and Settlement Agreement. 113. 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 BENEFIT OF OTHERS This settlement shall be and is hereby binding upon and shall inure only to the benefit or the Parties here -to and their respective parents, subsidiaries, related entities, predecessors, successors, heirs, estates assigns. executors, trustees, officers, directors, 3hareholders, partners, employees, servants, agents, attorneys and representatives, and not to any other party to this action 15. CONSTRUCTION OF 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 ot the State of California in effect Mutual Settlement Agreement Page 5 o 9 at the time of its execution. In the event of vagueness or ambiguity, this Release and Settlement Agreement shall not be construed against 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 shall not affect ilk construction of this 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 Alt counterparts taken together shall constitute a single agreement. A facsimile transmission signature shall have the same force and effect as an original signature 17 FURTHER DOCUMENTS All of the Parties hereto by their respective attorneys, shall execute and hereafter properly file such orders. pleadings or other papers as shall he 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 terins and intent of this Release and Settlement Agreement. 18, EACH PARTY TO BEAR ATTORNEY'S FEES AND COSTS Each Party hereto shali hear 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 DEFAMATORY OR DEROGATORY COrVIMENTS The Parties agree to refrain from making any defamatory or derogatory comments or statements, whether written or oral, about each other 20 WAIVER, MODIFICATION AND AMENDMENT No provision hereof may he 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 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. et6SSZSVieadff Mutual Settlement Agreernent Page 6 o 9 21 SEVERABILLTY If any provision of this Release and Settlement Agreement shall be adjudged void or unenforceable, the same shall not affect the validity &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 representaticms, oral or otherwise, express or implied, other than those contained herein have been made by any party hereto 23, INDEMNITY Plaintiff agrees to hold Defendant Citv &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 Beaver Medical Group, Redlands Community Hospital Medicare or MecliCal providing medical services to Plaintiff 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 for negotiating 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 I3Y IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS (IOO) OR BOTH." Mutual Settlement Agreement Page 7 of 9 26 MISCELLANEOUS A This Agreement shall be deemed to have been executed and delivered within the State of California and the nghts 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 pnor 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 The San Bernardino Superior Court reserves jurisdiction to enforce the terms and conditions of the AGREEMENT pursuant to California Code of Civil Procedure Section 664 6 upon noticed motion of any party E This Agreement consisting of nine pages is made and entered into on and as of July 2021, in Redlands California, and is effective as of this date THE PARTIES HAVE READ THE FOREGOING MUTUAL SETTLEMENT AGREEMENT AND FULLY UNDERSTAND IT Date 7— Date " 7 -2.1 Date 7 z1 B CHRIST ME Z, P . intiff BY BY DLANDS PAUL BARICH, Mayor ATTESTATION DONALDSON dlands City Clerk Mutual Settlement Agreement Page 8 of 9 APPROVED S TO FORM AND CONTENT ey for Pia' &Christine Jimenez F3RUCE E. DISENHOUSE Attorney for Defendant City of Redlancls Mutual Settlement Agreement Page 9 of 9