Loading...
HomeMy WebLinkAbout5/3/2000 - STAFF REPORTS (3) DATE: May 3, 2000 TO: City Council FROM: Risk Manager via City Manager SETTLEMENT AGREEMENT BETWEEN FELIX PEREZ BETANCOURT AND THE CITY OF PALM SPRINGS RECOWEMMiDATION: Approval of Settlemem Agreement between Felix Perez Betancoutt and the City of Palm Springs. BACKGROUND: The incident giving rise to this claim occurred on June 27, 1999. City of Palm Springs Police Officers were searching for a crime suspect, when Felix Perez Betamourt was observed at 1:00 a.m. inside Sun Stadium. K 9 warnings were issued by the officer,but no response was given by Mr. Betaucourt. Nico,a Palm Springs police service dog, bit and held claimant while the officer cautiously approached. Mr. Betancourt did not respond to the officer's earlier warnings because he was asleep. It was later determined by the Police that Betancourl was not the crime suspect. Council was apprised of this claim in closed session on February 19, 2000 and directed staff to negotiate a settlement that has now been completed. The Settlement Agreement, duly executed, is on file in the office of the City Clerk. c NANC'Y JO MC 94TOSH Risk Manager APPROVED c Ci gr n Attachment: 1. Minute Order AafO�[Of191 Mimrte Order OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS APPROVING A SEA AGREEMENT IN THE AMOUNT OF $16,000 BETWEEN PEER PEREZ BETANCOURT AND THE CITY OF PALM SPRINGS. - - - --- - ---- - - - I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement m the amount of$16,000 between Felix Perez BeUnmut and the City of palm Springs, was adopted by the City Council of the City of palm Springs, California in a meeting thereof held on the 3rd day of May, 2000. PATRICIA A. SANDERS City Clerk fla • • ORIGINAL SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release of All Claims ("Agreement") is entered into by and between FELIX PEREZ BETANCOURT("Claimant") and the CITY OF PALM SPRINGS ("Defendant"),and is intended by the Parties hereto to settle fully and finally all differences between them, including, but in no way limited to, those differences embodied in the Action referred to hereinafter. RFECITALS A. WHEREAS, there is currently pending a claim arising out of a June 27, 1999 incident in which the claimant was bit by Police K-9 Nico. B. WHEREAS, the Parties wish to resolve the action without the necessity of a trial and without any party admitting the merits of any other parry's position. COVENANTS NOW, THEREFORE, for full and valuable consideration and based upon the foregoing recitals and terms, conditions, covenants and agreements contained-herein, the Parties agree as follows: 1. Settlement Payment. The City of Palm Springs will pay Claimant the total sum of Sixteen Thousand Dollars ($16,000) in full consideration and settlement of any and all claims by Claimant, including any claims for attorney's fees, litigation costs and workers' compensation liens. Said sum constitutes a full and complete settlement and compromise of the Claim, and of all disputes arising out of or related to the Claim. Payment in full will be made within three (3) business days of Claimant's counsel presenting to the City's Risk Manager the executed Settlement Agreement and General Release of All Claims. 2. Release. Claimant hereby releases and forever discharges the Defendant and each of its predecessors, successors, assigns, past or present employees (including but not limited to each of the employees identified or accused in the Claim), officers, directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations, whether previously or hereafter affiliated in any manner, ("the Released Parties"), from any and all claims, demands, causes of action, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which Claimant ever had, now has, or may claim to have as of the date of this Agreement against the Released Parties (whether directly or indirectly), or any of them, by reason of any act or omission concerning any matter, cause or thing, including, without limiting the generality of the foregoing, any claims related to or arising out of the Claim, or any claims asserted or which could have been asserted in the Claim. 1 3. Discovery of Different or Additional Facts. Both Parties acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 2 of this Agreement, and they expressly agree to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 4. Release of Unknown Claims. The Release set forth above in Paragraph 2 of this Agreement is a general release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and are intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have against each other, except for any claims which may arise from the terms of this Agreement. 5. Waiver of Civil code Section 1542. Further, all Parties expressly waive and relinquish all rights and benefits they may have under Section 1542 of the Civil Code of the State of California. That statute reads as follows: "§ 1542. (General Release-- Claims Extinguished.) 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." 6. Non-Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of the Agreement shall be construed in any manner as an admission of any liability by Defendant or any of its employees, or any affiliated person or entities, all of whom consistently have taken the position that they have no liability whatsoever to Plaintiffs. 7. No Assignment of Claims. Plaintiffs warrant that they have made no assignment, and will make no assignment, of any claim, chose in action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. 8. Succesors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 2 9. Knowing and Voluntary. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. 10. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 11. Counterparts. This agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 12. Singular and Plural. Whenever required by the context, as used in this Agreement,the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 13. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 14. Severability. Should any portion, word, clause,phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 15. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 16. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. 17. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed 3 under the laws of said State without giving effect to conflicts of laws principles. 18. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied,between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and General Release of All claims on the dates set forth below. CLAIMANT: Dated: 27Z Felix Perez Betancourt APPROVED AS TO FORM: LAW OF ICES OF SEGALL & WIEDER B Irwin Goldenberg ATTORNEY FOR CL MANT 4 DEFENDANT: Dated: /l d �f7 CITY OF PALM SPRINGS By: f a A� Nancy Jo Mdntosh, Risk Manager APPROVED: By: Dallas Flicek, Acting City Manager APPROVED AS TO FORM: By: TJ City AAorney AT T: — -. B : Clerk APPGzOY' D BY 1 H96 01-tip COUNIQL d'Yt0 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF F � On a' before me, DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY P LIC" personally appeared, personally known LW me (or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/ar"ubscribed to the within instrument and acknowledged to me that hersbe/, they executed the same in his/h-afteir authorized capacity(ies), and that by his/hwfteir, signature(s)on the instrumentthe person(s),or the entity upon behalf of which the person(s)acted, executed the instrument. I�ASAUZA� 1 JIMENEZ�Z WITNESS my hand and official seal. 0 17 IR RM COMM.#1206321, NOTARY PUBLIC CAL:IFORNIAD RIVEPSIDE COUNTY 0 E)EC.31,2002 COMM.E XP (SEAL) NOTARY PUBLIC SIG4JURE OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT' (tiNUMBER OF PACES 5 SIGNER(S)OTHER THAN NAMED ABOVE s U U