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HomeMy WebLinkAboutContracts & Agreements_99-2024SETTLEMENT, MUTUAL AGREEMENT AND GENERAL RELEASE OF CLAIMS THIS SETTLEMENT, MUTUAL AGREEMENT AND GENERAL RELEASE OF CLAIMS ("Agreement") is made and entered into by and between Mark Winters ("Claimant"), and the City of Redlands, Commander Jeremy Floyd, Officer Eric Pendery and Officer Martin Gonzalez (collectively "Redlands"). Claimant and Redlands are referred to collectively at times herein as the "Parties." RECITALS A. Claimant served a claim for damages against the City of Redlands, and three of its police officers on or about April 17, 2024 (the "Dispute"); B. The Dispute arises out of the arrest of Claimant occurring on or about December 16, 2022 for driving under the influence of alcohol in the City of Redlands; C. Recognizing the costs and uncertainties involved in any litigation, the Parties now desire to settle fully and finalize all differences between them arising from the Dispute; D. The Parties intend, by this Agreement, to settle any and all claims in connection with the Dispute, or otherwise existing between the Parties as of the execution of this Agreement, whether alleged or unalleged, for the total sum of One Hundred Fifty Thousand ($150,000); E. This Agreement does not constitute an admission of any liability or wrongdoing whatsoever on the part of any of any of the Parties hereto or named Defendants. AGREEMENT AND RELEASE For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Payment. Payment is contingent upon execution of this Agreement. Redlands, shall, within 30 days of receipt of this fully executed Agreement by all parties and a W-9 from Claimant's counsel, Dennis Wagner, make the settlement payment of One Hundred Fifty Thousand ($150,000), made payable to Claimant's counsel of record as follows: "WAGNER ZEMMING CHRISTENSEN, IOLTA TRUST ACCOUNT." The check shall be mailed to Mr. Dennis Wagner, via overnight mail to 895 Marlborough Ave., Ste. 200, Riverside CA 92507, signature required. 2. Notice. All notices to be given pursuant to this Agreement, shall be in writing and shall be delivered to the following addresses, or such other addresses as the Parties may later designate in writing: SETTLEMENT AGREEMENT AND RELEASE Winters v. Redlands, et al Page 2 of 5 If to Claimant: Such notice shall be mailed to Mr. Dennis Wagner, Esq., at 895 Marlborough Ave., Ste. 200, Riverside CA 92507. If to Redlands: Such notice shall be mailed to James R. Touchstone, Esq., at Jones Mayer, 3777 N. Harbor Blvd., Fullerton, California 92835. 3. Rel ase by Claimant. Claimant, individually, and on behalf of himself, his heirs, successors, grantees, assigns, principals, agents, employees, consultants, representatives, attorneys, bonding companies, lien holders, and insurers fully and forever release and discharge the City of Redlands, Commander Floyd, Officer Pendery and Officer Gonzalez, as well as their respective successors, heirs, assigns, principals, agents, departments, employees, former employees, the City's elected officials, appointed officials, consultants, vendors, representatives, attorneys, bonding companies and insurers from any and all liability in connection with all claims, damages, attorney's fees, costs, liens, expenses, losses, suits, demands, rights, liabilities and allegations arising from or in any way related to the City of Redlands or its employees, officers or elected officials existing at the time of execution of this Agreement, whether made or unmade, known or unknown, asserted or unasserted, stated or unstated or that could have been stated, and of any kind whatsoever. 4. Claimant Responsible for All Liens: Claimant and Claimant's counsel represent and acknowledge that they bear full responsibility for any and all liens that may exist, such as attorney liens, medical liens, Medi-Cal liens, Medicare liens, or any other liens in connection with the Dispute. Claimant and Claimant's counsel shall be solely responsible for any and all liability associated with any such liens and shall indemnify and defend all defendants for any lawsuits, demands, claims or other legal actions of any sort whatsoever attempting to collect on said liens. 5. Civil Code section 1542 Release. The Claimant are aware of all rights that may be granted to them pursuant to Civil Code section 1542, which section reads, in pertinent part, 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." Claimant nevertheless waives all rights granted to him by Section 1542, and any similar statute, code, law or regulation of any state of the United States, or of the United States, and assumes all risks for claims arising in the Dispute, heretofore or hereafter arising, known or unknown, from the subject matters of this release. Furthermore, Claimant agrees that the facts on which the release under which this Agreement is based, may turn out to be different from the facts now known or believed to be true in respect to the matters referred to above. Nevertheless, 2 SETTLEMENT AGREEMENT AND RELEASE Winters v. Redlands, et al Page 3 of 5 the Claimant accepts and assumes the risk that such facts may turn out to be different and agrees that the terms of the release in this Agreement shall in all respects be effective and not subject to termination, rescission, modification by an such difference in the facts. 6. Competency. In consideration of the above -described settlement and as an inducement therefore, Claimant represents, covenants and agrees that Claimant is competent to sign on his behalf. 7. No Admission of Liability. The Parties understand and agree that this Agreement is not to be construed as an admission of liability whatsoever on the part of the City of Redlands, or any other Redlands employee or department, and that this Agreement is made solely for the purpose of avoiding the burden that would be imposed upon the Parties by further litigating the Dispute. 8. No Assignment. Claimant represents and warrants that he has not assigned or transferred, or purported to assign or transfer, and shall not hereafter assign or transfer, any obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, actions, and causes of actions released under this Agreement. 9. Consultation With Attorney. Each Party declares that prior to the execution of this Agreement, he/she/it has consulted with his/her/its attorney in order that he/she/it may intelligently exercise his/hers/its own judgment in deciding whether to execute this Agreement. 10. Authority to Execute Agreement. Each Party declares that he/she/it has read this Agreement and understands and knows the contents thereof, and represents and warrants that each of the Parties executing this Agreement is empowered to do so and hereby binds the respective Party, and all of its successors, assigns, principles, agents, employees, consultants, representatives, attorneys, bonding companies and insurers to the terms hereunder. 11. Counterparts. This Agreement may be executed in counterparts, and all so executed shall constitute an agreement binding on the Parties hereto. The Parties further agree that a facsimile and/or scanned copy of the executed counterparts shall have the same force and effect as an original. 12. Enforcing: Agreement. This Agreement shall in all respects be interpreted, enforced and governed under the laws of the United States or the State of California, as applicable, and this Agreement is fully enforceable pursuant to California Code of Civil Procedure section 664.6, or its federal counterpart. The Parties agree that the Court shall retain jurisdiction to enforce the terms of this Agreement. 13. Jurisdiction and Venue. This Agreement is intended to be construed pursuant to the laws of the State of California. Each Party hereto agrees that the proper venue for any action arising out of the breach or the interpretation of this Agreement or other documents delivered pursuant to any provision thereof, shall be the San Bernardino County Superior Court of the State of California. 3 SETTLEMENT AGREEMENT AND RELEASE Winters v. Redlands, et al Page 4 of 5 14. Entire Agreement. This Agreement constitutes the entire understanding between and among the Parties hereto. Each Party acknowledges that no Party, agent or representative of the other Party has made any promise, representation or warranty, express or implied, not expressly contained in this Agreement, which induced the other Party to sign this document. Both Parties agree that this Agreement shall not be amended or modified, except in writing signed by each Party, and shall not be construed against any Party because that Party's representative drafted the Agreement or any portion of it. 15. Additional Acts'. The Parties agree to perform such further acts and to execute and deliver such further documents as may be reasonably necessary or appropriate to carry out this Agreement. 16. No Other Promise or Warranty. No promise or warranty shall be binding on any Party except as expressly contained in this Agreement. 17. Not Binding on Any Third. Party. This Agreement is not for the benefit of any person or party who is not a signatory hereto or specifically named or referred to herein. 18. If Any Provision Is Void. If any provision of this Agreement shall be determined to be invalid, void or illegal, such provision shall be construed and amended in a manner which would permit its enforcement, but in no event shall such provision affect, impair or invalidate any other provision hereof. 19. Agreement Binding on Successors. It is agreed that this Agreement, together with the releases, shall be binding upon and inure to the benefit of the heirs, executors, administrators, personal representatives, successors in interest and assigns of the respective Parties hereto, 20. Attorneys' Fees. The Parties shall each bear their own attorney's fees and costs incurred in litigation of the Dispute. However, should either Party initiate any action at law or in equity to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and costs. 21. Gender and Number. Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. 4 SETTLEMENT AGREEMENT AND RELEASE Winters v. Redlands, et al Page 5 of 5 22. Effective Date. This Agreement shall be effective as of the last date set forth below. WHEREFORE, the undersigned having read the foregoing Settlement and Release Agreement, and fully understanding it, and agreeing to its terms, hereby execute this Agreement and make it effective on the date of the last signature hereto. DATED: June 2024 CITY OF DATED: May , 2024 By: Eddie Tejeda Mayor, CITY OF RE ANDS MARK WINTERS APPROVED AS TO FORM AND CONTENT: DATED: Mayes I , 2024 DATED: May 22 , 2024 ING CHRISTENSEN Dennis Wagner, Esq. Attorney for Mark Winters JONES MAYER By: 5 James R1 Touchstone, Esq. Attorney for City of Redlands SETTLEMEN'f AGREEMENT AND RELEASE Winters v. Redlands, et al Page 5 of 5 20. Attorneys" Fees. The Parties shall each bear their own attorney's fees and cr..Ists incurred in litigation of the Dispute. However, should either Party initiate any action at law or in equity to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable littorrveys' fees and costs. 21 , (lender and Number. Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the. singular number shall be held and construed to include the plural, unless the context otherwise requires. 22, Effective Date. This Agreement shall he effective as of the last date set forth below. WHEREFORE, the tmdersigned having read the foregoing Settlement and Release Agreement, and fully understanding it, and agreeing to its terms, hereby exerAite this Agreement and make it effective on the date of the I ast signature hereto. DATED: June , 2024 CITY ()I, REDLANDS DATED: May 24 , 2024 By Eddie Tejcda Mayor, C l'I'Y OF REDLANDS MARK WINTERS it/Z44e.e APPROVED AS TO FORM AND CONTENT: DATED. May , 2024 WAGNER ZEMMING CI I RISTENSEN 5