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HomeMy WebLinkAboutContracts & Agreements_40-2022SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into this 3b TH day of March, 2022 ("Effective Date") between SBCW Consulting, Inc , a California corporation ("SBCW") and the City of Redlands, a California general law city ("City"). SBCW and City are sometime individually referred to herein as a "Party" and, together, as the "Parties " RECITALS WHEREAS, on July 22, 2020, SBCW filed a complaint against City in California Supenor Court, San Bernardmo County, as Case No C1VDS2015309 titled S B C W Consultzng, Inc , a California corporation v City of Redlands ("Action"), and WHEREAS, having agreed to compromise, settle and discharge all claims, controversies, demands, and actions, or causes of action, which SBCW may have or claim to have agamst City, (including, without limitation, those claims made in the Action), the Parties to this Agreement now desire to memorialize that agreement in this fmal form, NOW, THEREFORE, IN CONSIDERATION of the promises, covenants and agreements herein contained, the Parties agree as follows. 1 In exchange for the promises and releases contained herein, City agrees to pay the following in full settlement of any and all of SBCW's claims as set forth in the Action ("Settlement Payment"). Fifteen thousand dollars ($15,000), shall be paid by check made out to "S B C W Consulting, Inc " The Settlement Payment will be made within thirty (30) days of this Agreement being fully executed and City's receipt of SBCW's form W-9. 2 Concurrently with the execution of this Agreement, SBCW shall execute such documents and perform such acts as are necessary to withdraw and/or dismiss with prejudice the Action and any other charges or complaints filed with any state or federal agency or court against City, as well as all agents, officers, directors, shareholders, employees, representatives, affiliated companies, sister companies, parent companies, contractors, and all persons actmg by, through, under, or in concert with any of them SBCW shall file and serve a dismissal, with prejudice, of the entirety of the Action within five (5) days of receiving the Settlement Payment 3 In exchange for the promises contained herein, SBCW, and its successors and assigns, hereby irrevocably and unconditionally releases, acquits and forever discharges City, as well as all of City's current or former elected and appomted officials, officers, employees, and agents, and all persons actmg by, through, under or in concert with any of them, and each of their respective heirs, successors, and assigns (collectively, "Releasees"), or any of them, from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses Page 1 of 3 L:\ca\dim\Agreements\SBCW Settlement Agreement 3.2.22.DOCX (including attorneys' fees and costs actually incurred) of any nature whatsoever, known or unknown, suspected or unsuspected, raised or related to the Action. 4 It is understood and agreed that this is a full, complete and final general release of any and all claims described as aforesaid, and that it shall apply to all unknown, unanticipated, unsuspected and undisclosed claims, demands, liabilities, actions or causes of action, in law, equity, or otherwise, as well as those which are now known, anticipated, suspected, or disclosed as of the date of the execution of this Agreement. 5 SBCW hereby acknowledges that it has been fully advised by its attorneys of the contents of Section 1542 of the Civil Code of the State of California. Section 1542 reads as follows. Section 1542. (General Release.) 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 SBCW, being aware of said code section, hereby expressly waives and relinquishes all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to the releases granted in this Agreement. 6 SBCW agrees, represents and warrants it shall have sole responsibility for the satisfaction of any and all taxes, liens or assignments in law or equity, or otherwise, that may exist with respect to any payment by City pursuant to this Agreement, and that it will fully satisfy all taxes, liens, and assignments upon receipt of the settlement payments. SBCW further agrees to indemnify Releasees for, and hold Releasees harmless from, any taxes, penalties, or interest paid by them as a result of any receiving party's failure to pay taxes, and to reimburse Releasees for any attorneys' fees or costs incurred in defending any claim that Releasees wrongfully failed to withhold any moneys from the amount paid pursuant to this Agreement. 7 Except as explicitly provided herein, SBCW and City will each respectively bear their own costs, expenses, and attorneys' fees, whether taxable or otherwise, incurred in or ansing out of or in any way related to the matters released herein. 8 It is understood and agreed that this is a compromise settlement of disputed claims and that the promises and payment in consideration of this Agreement shall not be construed to be an admission of any liability or obligation whatsoever by any Party or the Releasees to SBCW, or to any other person whomsoever 9 The Parties represent and acknowledge that in executing this Agreement, they do not rely upon, and have not relied upon, any representation or statement not set forth herein with regard to the subject matter, basis or effect of this Agreement or otherwise. Page 2 of 3 L:\aa\djm\Agreements\SBCW Settlement Agreement 3.2.22.DOCX 10 This Agreement contains the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of their agreement with respect to the subject matter hereof. The terms of this Agreement are contractual and not a mere recital 11 This Agreement shall bind the successors and assigns of each Party, and inure to the benefit of each Party's, and the Releasees, agents, directors, officers, employees, servants, successors and assigns 12 SBCW hereby warrants and represents that it has not transferred or assigned, or attempted to transfer or assign, any of the claims released hereunder 13 This Agreement shall be deemed to have been entered into and shall be construed and enforced m accordance with the laws of the State of California as applied to contracts made and to be performed entirely within California The provisions of this Agreement are severable, and if any of its provisions are found to be unenforceable, the remaining provisions shall remain fully valid and enforceable This Agreement shall survive the termination of any arrangements contained herein. 14 This Agreement may be executed in any number of counterparts and the acceptance of either Party to the terms hereof may be evidenced by the fax or email transmission of a Party's signature 15 If any action at law or equity is brought to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to recover all costs and attorneys' fees date. IN WITNESS WHEREOF, the Parties have executed this Agreement as of its Effective DLANDS S B C.W. CONSULTING, INC Paul T Banch, Mayor Name, Title 1`.' �Yc� ?re' rre'h d� ---- ATTEST e Donaldson, City Clerk Page 3 of 3 L-\ca\dim\Agreement&SBCW Settlement Agreement 3.2.22.DOCX