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HomeMy WebLinkAboutContracts & Agreements_191-2021SETTLEMENT AGREEMENT AND CONFIDENTIAL RELEASE 1 INTRODUCTION This Settlement Agreement and Release (hereinafter referred to as "Agreement") is entered into among and between the following individuals and entities, both on their own behalves and on behalf of any and all of their Related Persons and Entities (as defined below). A Michelle Faraj Braswell (hereinafter referred to as "Plaintiff"), and B San Bernardino County Transportation Authority, a government entity (hereinafter referred to as "SBCTA"), C Flatiron West, Inc , a corporation (hereinafter referred to as "Flatiron"), D City of Redlands, a government entity (hereinafter referred to as "The City"), E SBCTA, Flatiron, and The City will collectively be referred to as "Defendants." 2. DEFINITIONS As used in this Agreement, the following words and phrases have the following meanings A The "Property" shall refer to certain real property and improvements owned by Plaintiff located at 615 Tennessee Street, Redlands, California, and 619 Tennessee Street, Redlands, California B "Claim" or "Claims" shall refer to any and all claims, demands, liabilities, losses, damages, errors, latent defects, patent defects, complaints, cross -complaints, causes of action, intentional or negligent acts, intentional or negligent omissions, liability without fault, misrepresentations, material omissions, fraud, deceit, breaches of contract, breaches of warranties, economic damages, non -economic damages, compensation, property damage, loss of use, loss of services, attorneys' fees, experts' fees, repair costs, investigative costs, future professional fees, consultative expenses, relocations costs, diminution in value claims, and any other actionable omissions, conduct or damage of every kind or nature whatsoever, whether subrogated or non-subrogated, whether in tort, contract or extra - contractual, strict liability, strict products liability, violation of statutory construction standards, at law or contingent, foreseen or unforeseen, known or unknown, past, present, or future that arise from, relate to, or are in any way connected with the design, construction, related construction activities, development, repair, or any other work provided by Defendants in connection with the Redlands Passenger Rail Project Mainlme Construction at or near Property, including, but not limited to, any and all alleged flooding 22300869 1 05612 0203 Page 1 of 10 SBCTA Agreement No 22 1002713 events in November 2019 and January, and April 2020 and related construction activities in any respect near the Property. C "Parties" shall refer to Plaintiff and Defendants and each of their Related Persons and Entities D "Related Persons and Entities" as it pertains to both Plaintiff and Defendants shall refer to any and all past, present, and future parent companies, partners, general partners, divisions, subsidiaries, affiliates, related corporations and entities, members, shareholders, directors, officers, employees, insurers, lenders, predecessors, successors, and any partners, joint venturers, legal representatives, attorneys, agents, heirs, administrators, trusts, trustees, beneficiaries, and creditors 3 RECITALS A Plaintiff is the legal owner of the certain real property and improvements located at Property In May 2019, SBCTA contracted with Flatiron for the construction of the Mainline for the Redlands Passenger Rail Project (the "Project ") A portion of the Project is near to Plaintiff's Property B In November 2019, during Flatiron's work on the Project, Defendants allegedly caused a drainage and/or sewer line to be compromised near Plaintiff's Property, which eventually allegedly caused ram water to flow onto Plaintiff's Property, causing damages C In January 2020, rainwater once again backed up and was allegedly unable to flow down the street in front of Plaintiff's Property due to the allegedly compromised drainage or sewer line, causing damages to Plaintiff's Property D On or about April 6 and/or 7, 2020, Plaintiff's Property was again flooded due to the alleged ineffective or damaged drainage system which caused further damage to Plaintiff's Property E On or about April 9 and 10, 2020, construction was undertaken by Defendants which, Plaintiff alleges, caused a water line under Tennessee Street to fail and/ or become compromised, which released substantial amounts of water and debris which again flowed on to Plaintiff's property and caused further damage F Plaintiff also contends that during and as a result of construction undertaken by Defendants, a dram line which allows water to flow from Plaintiff's Property to the South has, from time to time, become clogged, or the flow of water has been blocked by piles or "berms" of dirt, preventing water from draining away from Plaintiff's Property and causing water to back up onto the parking lot and adjacent areas 22300869 1 05612 0203 Page 2 of 10 G On or about January 21, 2021, Plaintiff initiated a lawsuit, which has been pending in the Superior Court of the State of California, County of San Bernardino, an action entitled Michelle Faral Braswell v San Bernardino County Transportation Authority, a government entity, Flatiron West, Inc , a corporation, City of Redlands, a government entity; ; and Does 1 through 50 Inclusive, et al (Case No CIV SB 2102649) (hereinafter "the Action") The Action asserts a single cause of action for Negligence related to Defendants' alleged responsibility for the Claims H. The Parties agree that this Agreement is a compromise of disputed claims, that the settlement payment is not to be construed as an admission of liability, relationship and/ or responsibility on the part of the Parties hereby released, and that those Parties deny liability, relationship and/ or responsibility arising from the Claims The Parties now desire to settle and compromise their disputes against each other pertaining to the Claims I The Parties agree and acknowledge that Defendants are participating in the settlement regardless of whether the alleged damages incurred were caused by Defendants, and/ or its Related Persons and Entities. Accordingly, m consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as set forth below 4 CONSIDERATION In consideration of the Agreement reached and the release and waiver set forth in paragraphs 5 and 6 below, Flatiron, through its insurer, agrees to pay the sum outlined below, subject to the following conditions precedent. Within 30 days after counsel for Flatiron (Wood Smith Henning & Berman) is in receipt of (1) Plaintiff's signature to this Agreement, and a Stipulation and Proposed Order for the San Bernardino County Superior Court to dismiss the Action, with prejudice, and to retain jurisdiction over the Parties and the Action pursuant to the provisions of Code of Civil Procedure Section 664 6, and (2) a current executed W-9 for "Tennessee Gardens Event Center," along with written payment instructions, then Flatiron, through its insurer, shall pay "Tennessee Gardens Event Center " 41,000 00 (Forty -One Thousand Dollars) to Each Party to bear its own fees and costs The above referenced payment shall be made payable as set forth above and delivered to 22300869 1 05612 0203 Page 3 of 10 Steven P Weber, Esq Granowitz, White and Weber 650 East Hospitality Lane, Suite 570 San Bernardino, California 92408 5 RELEASE BY PLAINTIFF OF THE CLAIMS AND TERMS OF AGREEMENT For and in consideration of the settlement payment referenced in Paragraph 4 above, Plaintiff, on her own behalf, on behalf of her Related Persons and Entities, successors -in -interest, assigns, agents, attorneys and representatives, and for each of them, and for any person or entity that could possibly assert a Claim through or under them, now and in the future, do hereby fully, finally and generally release, acquit and forever discharge Defendants and all of their Related Persons and Entities from any and all conceivable damages arising out of the Claims, including, without limitation, demands, liabilities, causes of action, costs, expenses, and compensation of every kind and nature whatsoever, past, present or future, whether known or unknown, actual or contingent, including any claims arising out of the Claims This section may be pled as a full and complete defense to any action or other proceeding, as well as a basis for abatement of, or injunction against, such action or other proceeding, and as the basis for a cross -complaint for indemnity and damages, which damages shall include, without limitation, reasonable attorneys', paralegals' and experts' fees, costs and expenses incurred in defending any such action and prosecuting such cross -complaint Notwithstanding any provision in this Agreement, the releases by Plaintiff herein shall not apply to or bar any claims resulting from any future act or occurrence which may occur after the execution of this Agreement by all Parties hereto 6. PLAINTIFF'S WAIVER OF CIVIL CODE SECTION 1542 Plaintiff acknowledges that she has read and considered the provisions and significance of California Civil Code section 1542, which states as follows. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY Plaintiff understands and acknowledges that a risk exists that she incurred or suffered or may incur or suffer damages as a result of the matters, events, occurrences, transactions, causes and things which were unknown, unsuspected, or unanticipated at the time this Agreement is executed Plaintiff assumes this stated risk, and, notwithstanding this risk, intends by this Agreement to release and discharge Defendants 22300869 1 05612 0203 Page 4 of 10 and their Related Persons and Entities from all claims which arise from and relate to the Claims. Plaintiff voluntarily, and with full knowledge of its significance, waives and relinquishes any and all rights that she has under Section 1542, as well as under the provisions of all comparable, equivalent, or similar statutes and principles of common law or other decisional law of any and all States of the United States and of the United States Plaintiff specifically acknowledges that she has been informed by her legal counsel of the significance of California Civil Code, Section 1542, and the import of waiving this statutory provision It is expressly understood and agreed that this waiver of Civil Code Section 1542 and the releases set forth in section 5 hereto are material terms of this Agreement and were separately negotiated among the Parties 7. NON -DISPARAGEMENT AND CONFIDENTIALITY The Parties agree not to make any statement, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices or conduct of any other Party, including their agents, directors, and officers This provision does not in any way limit or reduce the Parties' rights or remedies under California law with regard to disparaging or defamatory statements, utterances, or publications This provision excludes any truthful testimony or any other communications given in compliance with a subpoena or court order or any legal process or requirement The actual dollar amounts to be paid under the terms of this Agreement are confidential, subject to the exclusions and limitations provided in this paragraph Except as essential to the consummation of the transactions under this Agreement, the Parties and their counsel shall not make or allow to be made, any notices, statements, disclosures, news release(s), or communications to the general public or to others who are not a party to this Agreement, concerning the actual dollar amounts to be paid under the terms of this Agreement Nothing in this Paragraph, however, shall prevent the parties to this Agreement from (a) making such a disclosure to their respective legal counsel, insurers, financial advisors, family members and accountants, and (b) complying with any legal obligation which requires such party to make such a disclosure to any other party or entity, including, but not limited to banks, lenders, financial advisors, government entities, insurance companies or others, or where required by subpoena, deposition subpoena, or other proceedings, as well as required by law, including the California Public Records Act, which both SBCTA and the City are subject to Pursuant to this confidentiality provision, this settlement shall not and will not be reported to any legal publications, and/ or any publications publishing verdicts or any media outlet $1,000 from the total settlement amount is being paid by Flatiron, through its insurer, for this confidentiality and non - disparagement agreement. / / / 22300869 1 05612 0203 Page 5 of 10 8. GOOD FAITH SETTLEMENT The Parties warrant, represent and agree that this settlement and this Agreement have been entered into in good faith, at arm's length, without collusion, and is the product of the negotiation of adverse interests as between the Parties and their counsel 9 REPAIRS AND HANDLING OF SETTLEMENT FUNDS Plaintiff is solely and completely responsible for any and all repairs, remediation, corrective work at the Property 10 ENFORCEMENT The Parties agree and stipulate that, notwithstanding any dismissal entered or filed herein, each has the right to enforce this Agreement, or any provision thereof, by filing any appropriate motion or proceeding, including without limitation, a motion pursuant to Code of Civil Procedure Section 664 6, in the appropriate law and motion department of the San Bernardino County Superior Court where the Action is venued The Parties further agree, acknowledge and stipulate that the Court presiding over the Subject Action shall retain jurisdiction over the Settling Parties to determine any motion brought pursuant to Code of Civil Procedure Section 664 6 11. REPRESENTATIONS The Parties make the following material representations with the understanding that each of them enters into the Agreement in reliance upon each of these representations and that, without these representations, none of them would enter into this Agreement A Plaintiff is the legal owner of the Property Plaintiff represents that she has the authority to execute this Agreement as she is the real party in interest for the Property Plaintiff has standing to sue herein as the real party -in -interest to the Claims Defendants were involved in construction activities near the Property B The Parties intend that the terms and conditions of this Agreement, and the Agreement as a whole, shall be binding upon them, and each of their Related Persons or Entities, and are intended to run with the land pursuant to applicable California law as to the Property C The Parties have had the opportunity to select and retain their own attorneys, experts and consultants to investigate, inspect, analyze and advise them regarding 1) the nature, extent and cause of the Claims, 2) the appropriate redesign, repairs, remediation, corrective work, and/or maintenance of the Property, and 3) this Agreement The Parties have considered the opinions, representations, conclusions, recommendations and estimates expressed by one another and/ or their experts and their attorneys, but they have not relied on them in any way whatsoever and have not been induced to enter into this 22300869 1 05612 0203 Page 6 of 10 Agreement by reliance upon them, except that the Parties are relying on the written representations, warranties and acknowledgements made in this Agreement. D The Parties acknowledge and represent that they have had the benefit of and opportunity to consult with legal counsel in evaluating, finalizing and executing this Agreement The Parties also represent that they have had the benefit of and opportunity to have all of the terms and provisions of this Agreement explained to the Parties by their respective legal counsel, including any and all language translations as necessary The Parties acknowledge and represent that they have read, fully understand, and accept the terms and provisions of this Agreement, and the Parties are freely and voluntarily signing this Agreement E The Parties shall not assert any claim against one another or their Related Persons or Entities or their experts or consultants based upon any alleged representation, misrepresentation, error, omission, opinion, conclusion or estimate as to Plaintiff's Claims or this Agreement, except that the Parties are relying on the written representations, warranties and acknowledgments made in this Agreement F. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign and that he or she is authorized to bind said Party to this settlement and this Agreement 12 MISCELLANEOUS A No Admission of Liability This Agreement shall not be construed as an admission of liability, error, or wrongdoing by any of the Parties B Attorneys' and Experts' Fees The Parties acknowledge and agree that each party will bear its own costs, expenses, and attorneys' fees arising out of or connected with the Claims and the negotiation, drafting, and execution of this Agreement In the event an action is brought to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys', paralegals' and experts' fees, costs, and expenses, in addition to all other legal and equitable relief to which that party or those parties may be entitled C Joint Drafting This Agreement is the product of negotiation and preparation by and among the Parties and their respective attorneys. Neither this Agreement nor any provision thereof shall be deemed prepared or drafted by one Party or another, or its attorneys, and shall not be construed more strongly against any Party Additionally, the Parties hereby waive the provisions of California Civil Code, Section 1654, which provides "In cases of uncertainty not removed by the proceeding rules, the language of a contract shall be interpreted most strongly against the party who caused the uncertainty to exist " 22300869 1 05612 0203 Page 7 of 10 D Governing Law This Agreement has been negotiated and entered into m the County of San Bernardino, State of California. It shall be governed by, construed and enforced in accordance with the laws of the State of California in effect as of the date of the Agreement and according to its fair meaning E Benefits and Burdens This Agreement shall be binding upon and inure to the benefit of the Parties and their respective Related Person and Entities F Severabihty If any provision of this Agreement is for any reason held to be invalid, unenforceable, contrary to any public policy, law, statute, and/ or ordinance, then that provision shall be severable from the remainder of this Agreement, and the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable G Counterparts This Agreement may be executed in counterparts, such that when the executed signature pages are taken together they shall constitute the entire Agreement, and shall be binding upon all Parties thereto, notwithstanding that the signatures of all Parties' designated representatives do not appear on the same page H. Duplicate Originals. This Agreement may be executed in one or more duplicate originals, each of which when fully executed by each of the Parties hereto shall be deemed an original This Agreement shall be effective as between the executing Parties even if there are other Parties who do not execute this Agreement Each of the undersigned warrants that he or she is duly authorized to execute this Agreement and bind the Parties on whose behalf he or she signs I Time is of the Essence Time is of the essence for performance by all Parties to this Agreement so that the Agreement will be consummated in a timely fashion and without unreasonable delay J Further Documents The Parties to the Agreement shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the goals and purposes of this Agreement K Copy as Original In any action or proceeding relating to this Agreement, the Parties stipulate that a copy of this Agreement may be admissible to the same extent as the original Agreement unless the exceptions set forth in California Evidence Code, Section 1511 are found to be applicable L Survival All representations and warranties and Agreements set forth in this Agreement shall survive the execution date of this Agreement M Amendment This Agreement may be amended only in writing executed by the Parties' designated representatives or their successors in interest at the time of the modification 22300869 1 05612 0203 Page 8 of 10 N Captions and Interpretations. Titles or captions m this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision thereof 0 Gender and Definitions Whenever required by the context hereof, the singular shall be deemed to include the plural, and the plural shall be deemed to include the singular and the masculine, feminine and neuter genders shall each be deemed to include the other P Integration This Agreement constitutes the entire understanding and agreement between and among the Parties with regard to the matters herein set forth There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the Parties hereto relatmg to the subject matter of this Agreement, which are not fully expressed herem This Agreement shall be interpreted according to its own terms, as defined m this Agreement or otherwise accordmg to their ordinary meaning, without any parole evidence This is an integrated agreement IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS INDICATED BELOW. DATED ld Z ( , 2021 Michelle Faraj Braswell 9: By 1 Michelle Faraj swell DATED , 2021 Flatiron West, Inc 223008691 05612 0203 By Printed Name. An Authorized Representative Page 9 of 10 N Captions and Interpretations Titles or captions in this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision thereof 0 Gender and Definitions Whenever required by the context hereof, the singular shall be deemed to include the plural, and the plural shall be deemed to include the singular and the masculine, feminine and neuter genders shall each be deemed to include the other P Integration This Agreement constitutes the entire understanding and agreement between and among the Parties with regard to the matters herein set forth. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the Parties hereto relating to the subject matter of this Agreement, which are not fully expressed herein This Agreement shall be interpreted according to its own terms, as defined in this Agreement or otherwise according to their ordinary meaning, without any parole evidence This is an integrated agreement IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS INDICATED BELOW. DATED , 2021 Michelle Faraj Braswell By Michelle Faraj Braswell DATED 10/6/2021 , 2021 Flatiron West, Inc By Printed Name Ural Yal, Vice President An Authorized Representative Lisa A Ziegler Division Finance Manager 22300869 1 05612 0203 Page 9 of 10 DATED October 5 2021 San Bernardino County Transportation Authority By gs, Printed ame Raymond W Wolfe, Executive Director, An Authorized Representative DATED , 2021 City of Redlands 22300869 1 05612 0203 SBCTA Agreement No 22 1002713 By Printed Name An Authorized Representative Page 10 of 10 DATED , 2021 San Bernardino County Transportation Authority By Printed Name Raymond W Wolfe, Executive Director, An Authorized Representative DATED % ! 6 / , 2021 City of Re"dl� ans4 By ATTEST By Printed Name Paul T Barich, Mayor An Authorized Representative Jeanne Donaldson, City Clerk 22300869 1 05612 0203 Page 10 of 10