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HomeMy WebLinkAboutContracts & Agreements_104-2000SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release ("Agreement") is entered into on this 5th day of Sept, 2000by and between Leopold Wenzel, individually and dba Loma Linda Towing (collectively "Wenzel."), and Allen Wenzel, on the one hand, and the City of Redlands ("Redlands"), on the other. RECITALS A. On or about March 17, 1992, Redlands granted Wenzel a franchise to provide certain towing services within the City limits (the "Franchise"). On or about March 18, 1997, the City Council of the City of Redlands passed Resolution No. 5362 (the "Resolution") revoking the Franchise. B. On June 25, 1997, Wenzel submitted a written administrative claim (the "Claim") to Redlands asserting that he was entitled to compensation or damages from Redlands as a result of the revocation of the Franchise and the passage of the Resolution. In or about1998, Wenzel and Allen Wenzel commenced that certain legal action in the San Bernardino Superior Court, case number SCV 43189, entitled Leopold Wenzel etc. et al. v. City of Redlands (the "Action"). Wenzel originally asserted six causes of action against Redlands and certain of its employees including Cletus Hyman ("Hyman") and Brad Kloepfer ("Kloepfer"), all of which concerned the revocation of the Franchise and the passage of the Resolution. As a result of various demurrers filed by Redlands, Wenzel was ultimately allowed to prosecute only a single claim for mandamus. RVLIT\HBG\574572 D, In addition to the causes of action asserted by Wenzel in the Action, Allen Wenzel asserted a cause of action against Redlands in the Action asserting that certain harassing or retaliatory actions were taken against him by employees of the Redlands Police Department against. By the Action, Allen Wenzel also sought damages against Redlands. D. Redlands, Wenzel and Allen Wenzel (collectively, the "Parties") now desire to resolve and settle all claims, counter -claims and disputes arising from or involving the Franchise, the Resolution, the Claim, and the Action. E. This Agreement is a compromise of the claims and liabilities asserted by the Parties and shall not be treated as an admission of liability by any party. AGREEMENT 1. The Parties acknowledge that the Recitals are true and correct and incorporate by reference those Recitals into this Agreement. 2. Within ten (10) days of the full and complete execution of this Agreement, Redlands shall pay Wenzel the sum of Twenty Five Thousand Dollars ($25,000.00). Payment shall be made by way of check made payable to "Leopold Wenzel" and payment shall be deemed to have occurred upon receipt of Redlands' check by counsel for Wenzel. RVLIT\HBG\574572 -2- 3. To the extent the Action has not previously been dismissed by the San Bernardino Superior Court, Wenzel and Allen Wenzel shall dismiss the Action, with prejudice, upon receipt of the payment identified in paragraph 2 above. 4. The Parties shall each be responsible for their respective attorney's fees and costs incurred in any matter related to the Franchise, the Resolution, the Claim and/or the Action. 5. Redlands on behalf of itself and its city council members, agents, attorneys, officers, employees, representatives, assigns and successors -in -interest hereby releases and forever discharges Wenzel, both individually and dba Loma Linda Towing, Allen Wenzel and their agents, attorneys, employees, representatives, assigns and successors -in -interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorney's fees, of every kind and character, known or unknown, existing or contingent, latent or patent, regarding any matter arising from or related to the Franchise, the. Resolution, the Claim and/or the Action. 7. Wenzel, both individually and dba Loma Linda Towing and Allen Wenzel on behalf of themselves and their agents, attorneys, employees, representatives, assigns and successors -in -interest hereby releases and forever discharges Redlands and its city council members, agents, attorneys, officers, employees (including Hyman and Kloepfer), representatives, assigns and successors -in -interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorney's fees, of every kind and character, known or RVLIT\HBG\574572 -3- unknown, existing or contingent, latent or patent, regarding any matter arising from or related to the Franchise, the Resolution, the Claim and/or the Action. 8. The Parties hereby acknowledge and expressly waive the provisions of California Civil Code. section 1542 which states: A general release does not extend to claims which the creditor does not know„ or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 9. The Parties represent and warrant that they have had the opportunity to seek and receive the advice of their attorneys with respect to the advisability of making the release provided for herein, and the meaning of California Civil Code section 1542. 10. Each of the Parties is aware that it may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of each of the Parties to fully, finally and forever settle and release all such matters, and all claims related to those matters. 11. The Parties hereby acknowledge that the rights and obligations hereby released have not been previously assigned by them to any third party. RVLIT\HBG\574572 -4- 12. The Parties represent and warrant that they fully understand each of the terms of this Agreement and its consequences and that they have sought the advice of counsel prior to executing this Agreement. 13. This Agreement is binding upon and shall inure to the benefit of the Parties, their respective officers, agents, employees, attorneys, representatives, assigns, successors -in -interest, parent corporations, subsidiary corporations, partnerships and joint ventures. 14. Each person executing this Agreement does hereby personally represent and warrant to the other signatories that he or she has the authority necessary to execute this Agreement, and that no other consents or approvals of anyone are required or necessary for this Agreement to be binding. 15. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 16. Should any action in law or equity be brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney's fees, incurred in the prosecution or defense of such litigation. 17. This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. RVLIT\HBG\574572 -5- 07/11/00 17:11 Tr ,,JUL-11-00 12-42 FROM BEST BEST AND KRIEGER I D - 909602AF/2 1 Viol PAGE 9/10 18 Should any term of this Agreement be deemed unlawful, that provision shall be severed and the remaining terms shall continue to be vitind and fully enforceable 19. The Parties agree to execute such other documents and take such other action as may be reasonably necessary to finalize and perform tlisAgreement. 20. The Parties may execute duplicate originals of this Agreement or any other documents they are required to sign or furnish pursuant to this Agreement Dated: Yelki /./JtOthd 9-5-00 Dated. Jay/ / UMW 9- 5- 0 0 tr) Dated Yutii I I I, t 9-5-00 Z. 5 72 6- Leopold Wenzel, individually and dba Lorna Linda Towing Allen Wenze City of Redlands Pat Gilbreath Gilbreath Mayor s ATTEST br ie Poyar C ty Cler 07/11/00 17:11 7T1 ,:i0L-11-01701 12,42 FROM,REST BEST AND KRIEGERtrY,909G0.24E31 qou PAUL'. w/ite, APPROVEDAS TO FORM7 Dated:jay/ 1 /„/Z0Q0/ 9- 5 - 0 0 By. Dated- July 2000 7- RVLIT\,-WA5-74',7Z RrNG & GREEN / Robert A-'Kng Attorneys for Leopol W individually and dba Loma Linda Towing and Allen Wenzel BEST & KRIEGER LLP Iloward B. Golds Attorneys for the City of Redlands Settlement Agreement - Loma Linda Towing - A copy of an executed settlement /agreement with Leopold Wenzel, individually and doing business as Loma Linda Towing, and Allen Wenzel was on this agenda to notify the public of the terms agreed to by the City Council in a closed session. Funds - University of Redlands Director of Public Safety - On motion of Councilmember Freedman, seconded by Councilmember Gilbreath, the City Council unanimously approved an additional appropriation in the amount of $132,272.00 to fund the Director of Public Safety position at the University of Redlands. The University will fully reimburse the City for all costs associated with this position. Funds - Habitat for Humanity - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously approved a request from Habitat for Humanity for Neighborhood Initiative Program funds in the amount of $45,000.00 in conjunction with the improvement project at 1140 Sixth Street. Agreement - Joslyn Senior Center - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously approved an independent contractor agreement with Ana Alford for a quilting and embroidery class for senior adults at the Joslyn Senior Center and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. Agreement - Community Center - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously approved an independent contractor agreement with Rebecca Price for violin lessons for youth, teens and adults at the Community Center and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. Appointments - DRBA Advisory Board - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously reappointed Larry Statler, Tami Barr, and Gary George to the Downtown Redlands Business Association (DRBA) Advisory Board as recommended by the DRBA Advisory Board. Release of Lien Agreement - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously authorized the release of a lien agreement with The Glorious. Redland Investment Partnership dated April 20, 1984 for improvements to Orange Avenue, east of Kansas Street, with the provision that an in -lieu payment will be made for those improvements yet to be installed. Fee Waiver - Project Home Again - On motion of Councilmember George, seconded by Councilmember Freedman, the City Council unanimously September 5, 2000 Page 3