HomeMy WebLinkAboutContracts & Agreements_38-2016 AGREEMENT OF SETTLEMENT AND
GENERAL RELEASE
1. PARTIES: The parties to this Agreement of Settlement and General Release ("Agreement")
are Sheldon Alechman ("Plaintiff'), and City of Redlands ("Defendant").
2. RECITALS: This Agreement is made with reference to the following facts:
2.1 Certain disputes and controversies have arisen between the parties.
2.2 Such disputes and controversies include, but are not limited to, the claims, demands
and case or causes of action arising out of the fatal accident involving Sandra Alechman
("Accident") and/or as set forth by the parties in a civil action pending in the San
Bernardino County Superior Court and entitled Sheldon Alechman v. City of Redlands, et
al., Case No. CIVDS 1210203 ("Action").
2.3 It is the intention of the parties 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 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 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 in Paragraph Four.
4. PAYMENT: Within 30 days after the complete execution of this Agreement, Defendant or its
insurer shall deliver to Plaintiff the aggregate sum of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000) via checks made payable as follows: $1,220,905 payable to Sheldon
Alechman and Robinson, Calcagnie, Robinson, Shapiro &Davis, and$29,095 payable to Optum.
Each side shall bear their own fees and costs incurred to date. Upon receipt of settlement funds,
plaintiff shall forthwith file an Acknowledgment of Full Satisfaction of Judgment and deliver a
conformed copy of same to counsel for defendant City of Redlands.
5. GENERAL 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,
the parties promise, agree and generally release as follows:
5.1 Except as to such rights or claims as may be created by this Agreement, each party
releases, remises and forever discharges each other party from any and all claims,
demands and cause or causes of action existing as of the effective date and arising out of,
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connected with or incidental to the dealings between the parties 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 referenced in
Paragraph 2.2 above.
5.2 This release shall also apply to the benefit of Defendant's officers, agents, employees,
representatives, insurers, and attorneys, affiliates, partners, predecessors and successors in
interest, heirs, and assigns and all other persons, agencies, firms or corporations with
whom they have been, are now, or may hereafter be affiliated.
5.3 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:
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 if
known by him or her must have materially affected his or her settlement with the
debtor.
6. REPRESENTATIONSAND WARRANTIES: Each of the parties to this Agreement represents
and warrants to, and agrees with, each party as follows:
6.1 Each 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, insurer, 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 of any other party(or of any officer, agent, employee, representative, insurer, 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 Each party to this Agreement has made such investigation of the facts 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.
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
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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 , regardless of any claims of misrepresentation, promise made
without the intention to perform, concealment of fact, mistake of fact or law, or of any
other circumstance.
6.6 Each party has not assigned, transferred, or granted, or purported to assign, transfer,
or grant, any of the claims, demands, and cause or causes of action disposed of by this
Agreement.
6.7 Each term of this Agreement is contractual and not merely a recital.
6.8 Each parry is aware that it may 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 settle and release
all such matters, and all related claims, which now exist, may exist, or have existed
between thein. In furtherance of such intention, the releases given remain in effect as full
and complete mutual releases of all such matters, notwithstanding the discovery of any
additional or different claims of facts.
69 The parties will execute all such further and additional documents as shall be
reasonable, convenient, necessary or desirable to carry out the provisions of this
Agreement.
6.10 Plaintiff agrees that he is solely responsible for the payment of any and all liens,
subrogation, and/or third party claims related to the Accident and/or the Action. Plaintiff
represents that there are no such liens other than the lien held by United Healthcare,
which will be fully discharged by Plaintiff forwarding the payment to Optum described in
Paragraph 4. Plaintiff agrees to hold Defendant harmless from, and defend and indemnify
Defendant from, the claims of any and all medical care providers and/or other lienholders,
including, but not limited to, claims arising from Medicare or MediCal's providing
medical services to Sandra Alechman as a result of the Accident.
7. SETTLEMENT: 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
of any liability of any kind to any other party. Each of the parties denies any liability in
connection with any claim and intends solely to avoid litigation and buy its peace.
8. MISCELLANEOUS:
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Y
8.1 This Agreement shall be deemed to have been executed and delivered within the State
l of California and the rights and obligations of the parties shall be construed and enforced
in accordance with, and governed by, the laws of the State of California.
8.2 This Agreement is the entire agreement between the parties with respect to the subject
smatter hereof and supersedes all prior and contemporaneous oral and written agreements
and discussions. This Agreement may be amended only by an agreement in writing,
signed by the parties.
8.3 This Agreement is binding upon and shall inure to the benefit of the parties, their
respective agents, employees, representatives, insurers, officers, directors, divisions,
subsidiaries, affiliates, assigns, heirs, successors in interest and shareholders.
8.4 Each party has cooperated in the drafting and preparation of this Agreement. Hence,
in any construction to be made of this Agreement, the same shall not be construed against
any panty.
8.51n the event of litigation relating to this Agreement, the prevailing party shall be
entitled to attorney's fees and costs.
8.6 This Agreement may be executed in counterparts, and when each party has signed and
delivered at least one such counterpart, each counterpart shall be deemed an original, and,
when taken together with other signed counterparts, shall constitute one Agreement,
which shall be binding upon and effective as to all parties.
8.7 The parties expressly agree that the Court shall retain jurisdiction over the terms of
this settlement and shall specifically retain jurisdiction to entertain a motion to enforce
the settlement should the need for such a motion arise.
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This Agreement, consisting of five pages, is made and entered into on and as of
in Redlands, California, and is effective as of this date.
SHELDON AL CHMAN
CITY OF REDLANDS
(�du-&w
By: PAUL W. FOSTER, Mayor
ATTEST:
SAM IRWIN, City Clerk
APP OVED AS TO FORM AND CONTENT:
illiam D. Shapirojormne�y for laintiff
Bruce E. Disenhouse, Attorney for Defendant
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