Michael P. Carbone

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Mediation Forms > Settlement Agreement


CASE NAME: ________________________________________________________
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (“Agreement”), dated for reference as of ____________________, is entered into by the undersigned parties to the above-entitled Case for the purpose of memorializing their agreement which was reached in mediation with Mediator Michael P. Carbone.
1.                  ________________________________________________________________ shall pay to __________________________________________________________________the sum of $__________________in full settlement for his/her/its/their claims arising from the matters which are the subject of the Case (hereinafter the “Dispute”).
2.                  Any additional terms and/or conditions that are specific to the Dispute are set forth in the Appendix to this Agreement, which is attached hereto and incorporated by reference herein. 
3.                  The settlement of the Dispute does not constitute an admission of liability on the part of any party.
4.                  This Agreement is intended to be binding and enforceable and represents the final agreement between the parties to the Dispute, and each of them. It shall be admissible in evidence pursuant to Evidence Code Section 1123 and, if the Dispute is the subject of a civil action in the Superior Court of California, it may be enforced pursuant to California Code of Civil Procedure Section 664.6.
5.                  In consideration of the covenants and obligations set forth herein, the parties hereto fully and forever mutually release and discharge one another from any and all claims, liabilities, rights, demands, actions and causes of action, of every kind and nature, in law, equity or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed, asserted in, or which could have been asserted in the subject action.
6.                  The releases and discharges set forth in paragraph 5 above apply to all past, present and future directors, officers, shareholders, partners, associates, employees, agents, servants, attorneys, insurers, predecessors, successors and assigns of the parties hereto.
7.                  The parties acknowledge and agree that the mutual releases set forth herein are general releases and further expressly waive and assume the risk of any and all claims for damages which exist as of this date but which they do not know or expect to exist, whether through ignorance, oversight, error, negligence or otherwise, and which, if known, would materially affect their decision to enter into this Agreement.
8.                  The parties hereby expressly waive the benefits of the provisions of Section 1542 of the California Civil Code, which provides 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 settlement with the debtor.
9.                  If the Dispute is the subject of a legal action, then within five (5) calendar days after the payment of funds as required by Section 1 above, the plaintiffs will cause to be filed with the court having jurisdiction thereof a Request for Dismissal with Prejudice.
10.              The parties acknowledge that the terms of this Agreement represent a compromise settlement of disputed claims and that neither the contents of this Agreement, nor the fact of its execution, nor any fact, matter or thing in any way related to or connected with the making and executing of this Agreement is intended to or shall be construed as, an admission of liability or obligation owed by any party to any other party, which liability is expressly denied.
11.              The parties hereto warrant and covenant that no other person or entity has or claims to have any interest in the claims, demands, obligations, liabilities, rights, actions or causes of action which are the subject of this Agreement, that they have the sole right and exclusive authority to enter into and execute the Agreement, and that they have not sold, assigned, transferred, conveyed, encumbered or otherwise disposed of any said claims, demands, obligations, liabilities, rights, actions or causes of action.
12.              The parties hereto agree to indemnify, defend and hold harmless any other party hereto from and against any and all claims, demands, liabilities, obligations, damages, losses, costs and expenses, including attorneys' fees, made against or incurred by any of the parties as a result of any falsity or inaccuracy of the representations, warranties and covenants contained in this Agreement, relating to the parties' exclusive ownership of the claims which are the subject of this Agreement.
13.              This Agreement is intended by the parties hereto to represent the final expression of their agreement and to be a complete and exclusive statement of the terms thereof. This instrument supercedes, extinguishes and is in lieu of any and all other agreements, negotiations, understandings, and representations which may have been made or entered into by and between the parties, and its terms are contractual and not merely a recital. Any amendment or modification to this Agreement must be in writing and must be executed by all parties hereto.
14.              In entering into this Agreement, the parties represent that they have relied solely upon the legal advice of their attorneys, who are the attorneys of their choice and that the terms of this Agreement have been completely read by them and explained to them by their attorneys, and that these terms are fully understood and voluntarily accepted by them. The mediator shall have no responsibility or obligation whatsoever with regard to the form or adequacy of any of the provisions of this Agreement, which has been provided solely as a courtesy to the parties and their counsel.
15.              This Agreement shall bind and shall inure to the benefit of the heirs, beneficiaries, personal representatives, successors and assigns of the parties hereto.
16.              This Agreement shall be construed and interpreted in accordance with the laws of the State of California.
17.              In the event of any legal action, arbitration, or other legal proceeding arising from this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred therein.
18.              Except as provided in Paragraph 17 above, each party shall bear his/her/its/their own costs and attorney’s fees in connection with the Dispute and the settlement thereof
19.              This agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties at such time as all the signatories hereto have signed a counterpart of this Agreement. All counterparts so executed shall constitute one Agreement binding on all t he parties hereto, notwithstanding that all of the Parties are not signatory to the same counterpart.



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