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HomeMy WebLinkAboutContracts & Agreements_131-2000SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement") is entered into by and between Mark Osborn and Karen Osborn ("the Osborns") and City of Redlands ("Redlands") who are sometimes referred to herein as the "Parties." RECITALS A. The Osborns allege that on September 13, 1998, a sewage overflow occurred from Redlands' sewers into their rented home located at 607 Monterey Street, Redlands, California causing damage which was the subject of that certain legal action entitled Mark Osborn, Karen Osborn and Tanya Osborn v. City of Redlands San Bernardino Superior Court Case No. SCVSS 61552 (collectively, "the Lawsuit"). B. It is the intention of the Parties to resolve and settle their dispute and to discharge all claims, demands, causes of action, obligations, damages and liabilities each Party may have against the other that arises from, or are related to, the incident which is the subject of the Lawsuit. C. 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 the Recitals into this Agreement. 2. Redlands shall pay to the Osborns the sum of Fifteen Thousand Dollars ($15,000). within thirty (30) days from the date Redlands has executed this Agreement, The payment shall be made by check payable to Mark Osborn and Karen Osborn, and their Attorney of Record, John Branch. 3. The Osborns, through their Attorney of Record, shall execute a Dismissal With Prejudice pursuant to Code of Civil Procedure section 581 of all lawsuits on file arising out of the incident giving rise to the Lawsuit, and provide the Dismissal to City within five (5) days of their receipt of the check described in paragraph 2, above. City shall file the Dismissal and provide a conformed copy to the Osborns' Attorney of Record. I:\djm\Sample Documents\Osborn.Settlement.wpd 1 4. The Parties shall bear their own attorneys' fees and costs incurred in connection with the Lawsuit. 5. The Osborns, on behalf of themselves and their respective agents, attorneys, representatives, assigns and successors -in -interest hereby release and forever discharge Redlands, and its Councilmembers, agents, attorneys, officers, employees, representatives, assigns and successors -in -interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorneys' fees, of every kind and character, known or unknown, existing or contingent, latent or patent, regarding any matter arising from or related to the incident which was the subject of the Lawsuit. 6. The Osborns represent and warrant that they have the legal authority to settle any and all causes of action and claims they may have against Redlands with regard to any and all claims and/or causes of action which relate or pertain to the Lawsuit. By executing this Agreement, the Osborns hereby release and waive all claims or causes of action which in any way relate or pertain to the Lawsuit. To the extent any person or entity should file, subsequent to the execution of this Agreement, any claim or cause of action against Redlands arising out of or which is related to the incident which is the subject of the Lawsuit, the Osborns shall indemnify, defend and hold Redlands harmless from any and all damages, including any attorneys' fees and costs, that result therefrom. 7. The Osborns expressly waive the rights afforded under Civil Code section 1542 which provides that: 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. 8. The Osborns represent and warrant that they have received the advice of their attorney with respect to the advisability of making the release provided for herein, and the meaning of Civil Code section 1542. The Osborns are aware that they 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 the Osborns to fully, finally and forever settle and release all such matters, and all claims related to those matters. 9. The Osborns represent and warrant that they have not assigned or transferred, or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, I:\djm\Sample Documents\Osborn.Settlement.wpd 2 demand, claims, costs, expenses, debts, controversies, damages, actions and causes of action released pursuant to this Agreement. The Osborns also agree to defend, indemnify and hold Redlands harmless against any obligation. liability, demand, claim, cost, expense (including, but not limited to attorneys' fees incurred), debt, controversy, damage, action or cause of action based on, arising out of or in connection with any such transfer or assignment or purported transfer or assignment. 10. The Osborns, and each of them, acknowledge that they have read this Agreement; that they have had the Agreement explained to them by counsel of their choice; that they are aware of the content and legal effect of the Agreement; that they are acting on the advice of counsel of their choice; and that they are not relying on any representations made by any other party or any of the employees, agents, representatives, or attorneys of any other party. 11. The Parties agree to execute and deliver any other instrument or document convenient or necessary to carry out the terms of this Agreement. 12. This Agreement constitutes the entire agreement between the Parties as to the matters contained herein. No modification of this Agreement shall be valid unless made in writing, signed by the Parties. The Parties shall not be bound by any representation, warranty, promise, statement or information, unless it is specifically set forth in this Agreement. 13. Failure of any Party to insist upon strict observance of, or compliance with all of the teitiis of this Agreement in one or more instances, shall not be deemed to be a waiver of a Party's right to insist upon such observance or compliance with the other terms of this Agreement. 14. This Agreement shall bind and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Parties. 15. 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. 16. Each person executing this Agreement represents and warrants to the other signatories that they have the authority to execute this Agreement on behalf of the entity for whom they are signing this Agreement. 17, This Agreement shall be governed by and construed in accordance with the laws of I:\djm\Sample Documents\Osborn.Settlement.wpd 3 the State of California. 18. Should an action be brought to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs incurred in prosecuting the action. Dated: THE OSBORNS Mark Osborn Karen Osborn Dated: December 5, 2000 CITY OF REDLANDS Pat Gilbreath, Mayor Attest: I:\djm\Sample Documents\Osborn.Settlement.wpd 4 Resolution No. 5822 - DBE Program - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously adopted Resolution No. 5822, a resolution of the City of Redlands establishing a Disadvantaged Business Enterprise (DBE) Program, appointing a DBE liaison officers, and establishing DBE goals for the period October 1, 2000, through September 30, 2001. State and federal agencies require this program prior to performing street construction of transportation related projects using federal and/or state highway monies. Agreement - WIC Program - On motion of Councilmember Peppier, seconded by Councilmember Freedman, the City Council unanimously approved an amended Community Center facility use agreement with San Bernardino County Women -Infant -Children (WIC) program and authorized the Mayor and City Clerk to execute the agreement on behalf of the City, with the understanding Police Chief Bueermann will explore a possible relocation of this program to the Healthy Families Center. Agreement - Boys and Girls Club of Redlands - Councilmember George asked for an update on the status of a permanent home for the Boys and Girls Club of Redlands. Public Works Director Mutter reported staff is working with them, but that their directors need to make some decisions before proceeding Councilmember George moved to approve a Community Center facility use agreement with the Boys and Girls Club of Redlands and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. Motion seconded by Councilmember Haws and carried unanimously. Agreement - Junior All American Football - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously approved a rental agreement with Junior All American Football for use of Community Park fields and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. Settlement Agreement - Osborn - On motion of Councilmember Haws, seconded by Councilmember Freedman, the City Council unanimously approved a settlement and release agreement with Mark and Karen Osborn, San Bernardino Superior Court Case No. SCVSS 61552, and authorized the Mayor and City Clerk to execute the agreement on behalf of the City. Funds - AB 2766 Subvention Funds - Website - Councilmember George explained the City has been awarded grant funding for the acquisition and implementation of an alternative fuel trolley system for downtown Redlands. However, the grant funding does not provide for the ongoing operation of the project. Fortunately, the project does meet the criteria to be funded with AB 2766 subvention allocations. These annual allocations, which must be used to reduce pollution, are currently used by the City to fund the rideshare program December 5, 2000 Page 2