HomeMy WebLinkAboutContracts & Agreements_31-2022AGREEMENT OF SETTLEMLNT AND
GENERAL RELEASE
1 PARTIES. The parties to this Agreement of Settlement and General Release ("Agreement")
are I leidi Kirkendoll("Plaintifr) and City of Redlands ("Defendants")
2 RECITALS This Agreement is made with reference to the following facts
2 1 Certain disputes and controversies have arisen between the parties hereto
2 2 Such disputes and controversies include, but are not limited to, the claims, demands
and case or causes of action set forth by the parties hereto in a civil action pending in the
San Bernardino County Superior Court and entitled Heidi Kirkendoll, et al , Case No
CIVDS193331 1
2,3 It is the intention of the parties hereto to settle and dispose of, fully and completely,
any and all claims, demands and cause or causes of action existing as of the effective date
of this agreement and arising out of, connected with. or incidental to the dealings between
parties hereto to the effective date hereof including, without limitation on the generality
of the foregoing, any and all claims, demands and cause or causes of action reflected in.
the civil action and appeals referenced in Paragraph 2.2 above.
3 DISMISSAL. Concurrently with the execution of this Agreement, Plaintiff shall dismiss, with
prejudice, the civil action referenced in Paragraph 2.2 above, in exchange for the promises,
covenants, conditions and payments set forth ia Paragraph Four
4 PAYMENT Concurrently with the execution of this Agreement, Defendants shall pay to
Plaintiff, the aggregate sum of Twenty Thousand Dollars ($20 000 00)
5 GENERA! 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.
5 1 I-xcept 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 and
arising out of connected with or incidental to the dealings between the parties hereto
prior to the effective date hereof including, without limitation on the generality of the
foregoing, any and all claims, demands and cause or causes of action reflected in the civil
action and appeals referenced in Paragraph 2.2 above.
5 2 Each party to this Agreement specifically waives the benefit of provisions of Section
1542 of the Civil Code of the State of California, as follows.
Agreement of Settlement and General Release
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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
known by him or her must have materially affected his or her settlement with the
debtor
6 REPRE,SENTAT/ONS'A NI) WARRANTIES Each of the parties to this Agreement represents
and warrants to, and agrees with, each. party hereto, as follows.
6 1 Cach party has received independent legal advice from its 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,
6,2 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 daily 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.
6 3 Bach party to this Agreement has made such investigation of the 'acts pertaining to
this settlement and this Agreement, and all the matters pertaining thereto, as it deems
necessary
6 4 Each party or responsible officer thereof has read this Agreement and understands the
contents hereof Each attic officers executing this Agreement on behalf of their
respective corporations is empowered to do so and thereby binds such respective
corporation.
6 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 it, or that its 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 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 perlonn concealment of fact,
mistake of fact or law, or of any other circumstance whatsoever
6 6 Each party has not heretofore assigned, transferred, or granted, or purported to assign,
transfer, or grant, any of the claims, detnands, and cause or causes of action disposed of
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by this Agreement,
6 7 Each teini of this Agreement is contractual and not merely a recital
6 8 l,ac.h party is aware that it may hereafter discover claims or facts in addition to or
different from those it 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 heretofbre have existed between them. in furtherance of such 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
6 9 The parties will execute all such further and additional documents as shall he
reasonable, convenient, necessary or desirable to carry out the provisions of this
Agreement.
6 10 Plaintiffs agree to hold Defendant harmless from, and defend and indemnify
Defendant 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.
7 ST I Tl ElhMF,NT This Agreement effects 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
8 A4 ISC ELI 4 r\lI;C) UPS''
8 1 This Agreement shall he deemed to have been executed and delivered within the State
of C'alifornia 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 or California.
8.2 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 'l'his Agreement may he amended only by an agreement in
writing, signed by the parties thereto
8 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.
8 4 Lich party has cooperated in the drafting and preparation of this Agreement, l fence,
in any construction to be made of this Agreement, the same shall not be construed against
Agreement of Settlement and General Release
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any party
8 5 In the event of litigation relating to this Agreement, the prevailing party shall he
entitled to attorney's Lees and costs
8 6 This Agreement may he executed in counterparts, and when each party has signed
and delivered at least one such counterpart, each counterpart shall he deemed an original,
and when taken together with other signed counterparts, shall constitute one Agreement,
which shall be binding upon and eflec.ttve as to all parties
8 7 This A 'reement, consisting of lour pages. is made and entered into on and as of
March . 2022, in Redlands. California. and is effective as of this date
BY
HEIDI KIRKENDOLL, Plaintiff
CrI OFYCIT OFY RE,DLANDS
BY
PAUL T BARICH, Mayor
CITY OF REDLANDS
BY
NE DONALDSON, City Clerk
APPROVI 1) AS I O I ORM AND CONTENT
Lewis W Duong, Lavv Office of Lewis W Duong
Attorney loi Plaintiffs Heidi Knrkendoll
?truce E Disenhouse, Disenhouse Law APC
Attorney for Defendant City of Redlands
Agreement of Settlement and General Release
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any party
8.5 In the event of litigation relating to this Agreement, the prevailing party shall he
entitled to attorne\- s lees and costs
8 6 This Agreement may be executed in counterparts, and when each party has signed
and dehveicd at least one such counterpart, each counterpart shall he deemed an original
and when taken together with other signed counterparts, shall constitute one Agreement,
which shall be hording upon and effective as to all parties,
8 7 This Agreement consisting of lour pages, is made and entered into on and as of
March 2022, in Redlands. California and is effective as of this date
BY
BY
APPROVI D AS TO I ORM AND CONTENT
Lewis W Duong, Law Office of I .ewis W Duong
Attorney for Plaintiffs Heidi Kukendoll
P3ruceE Disenhouse, Disenhouse Law APC
Attorney for Defendant City of Redlands
HEIDI KIRKENDOLL, Plaintiff
%CITY OF l2E,DLANDS
PAUL T BARICH, Mayor
CITY OF REDLANDS
jya NE DONALDSON, City Clerk
Agreement of Settlement and General Release
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