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HomeMy WebLinkAbout10/20/1999 - STAFF REPORTS (22) DATE: October 20, 1999 TO: City Council FROM: Risk Manager via Assistant City Manager, Administration SETTLEMENT AGREEMENT BETWEEN JESSE BRIDGES AND KENNETH MOORE AND THE CITY OF PALM SPRINGS RECOMMENDATION: Approval of Settlement Agreement between Jesse Bridges and Kenneth Moore and the City of Palm Springs. BACKGROUND: This lawsuit was originally filed in 1995, and contained seventeen(17)purported causes of action against the City of Palm Springs. Over the last five years, the Court has granted the City's motions for summary judgment on their pleadings, eliminating most of the plaintiffs' original causes of action. The three remaining causes of action have been settled in lieu of further litigation. Council has been continually apprised of this lawsuit in multiple closed sessions, culminating in Council's recent direction to the City Attorney to negotiate a settlement that has now been completed. The Settlement Agreement, duly executed, is on file in the office of the City Clerk. APPROVED: NANCY J M TB.SH DALLAS FLICEK Risk Manager Assistant City Manager, Administration ROVED: City Madger ATTACHMENT: Minute Order ✓ . : !.' D SE 7LEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release of All Claims ("Agreement") is entered into by and between JESSE BRIDGES and KENNETH MOORE("Plaintiffs")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. RECITALS A. WHEREAS, there is currently pending a lawsuit entitled Jesse Bridges, et al. v. City of Palm Springs, et al., Riverside County Superior Court Case No. 086382 (the "Action"). 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 party'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 Plaintiffs the total sum of Thirty Thousand Dollars ($30,000.00) in full consideration and settlement of any and all claims by Plaintiffs, including any claims for attorney's fees and litigation costs. Said sum constitutes a full and complete settlement and compromise of the Action, and of all disputes arising out of or related to the Action. Payment in full will be made within fifteen(15) business days of Plaintiffs' counsel presenting to the City Attorney an executed dismissal with prejudice, of the entire Action in Case No. 086382. 2. Release Plaintiffs hereby release and forever discharge 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 Action), 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 Imown, suspected or claimed, which Plaintiffs ever had, now have, 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 Action, or any claims asserted or which could have been asserted in the Action. -1- Initials: 1AJ-1 29510MON4 09BI3290M43.1 "o9/Uc M Defendant hereby releases and forever discharges Plaintiffs 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 Defendant ever had, now have, or may claim to have as of the date of this Agreement against Plaintiffs (whether directly or indirectly), 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 Action, or any claims asserted or which could have been asserted in the Action. 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 Releases set forth above in Paragraph 2 of this Agreement are general releases 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 terns 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: 1 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. No Other Pending Actions. Plaintiffs represent that they have not filed any claims and/or complaints or charges (other than the Action referenced above and any prior workers compensation claims)against the Released Parties with any local, state or federal agency or court; that they will not file any such claims at any time hereafter; and that if any such agency or court assumes jurisdiction of any such complaint or charge against Defendant, i[s predecessors, successors, assigns, employees (including but not limited to each of the employees identified or accused in the Action), shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations,whether previously or hereafter affiliated in any manner, on behalf of Plaintiffs, whenever filed, they will request such agency or court to withdraw from the matter forthwith. 7. 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 -2- Initials: fiW/7 n%1408"0Ws2M3.1 &09MM the terms of this 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. 8. 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. 9. Successors 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. 10. 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. 11. 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 terns and conditions of this Agreement. 12. Couateroarts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 13. 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. 14. 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. 15. 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. 16. Amblanity. 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. -3- Initials: KL Af 235101e09440925290543.1 ,09103199 17. 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. 18. Governine Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 19. Entire reement. 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 aclmowledge 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. [SIGNATURE PAGE TO FOLLOW] / -4- Initials: 23"14084-009=9QW.1 $091" IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and General Release of All Claims,and have initialed each page hereof, on the dates set forth below. PLAINTIFFS: Dated: , 1999 JESSE B� ES Dated: 6�! , 1999 — TENNETH MOORE DEFENDANT: Dated: , 1999 TY OF PALM SP GS By: Ity er o the City of Palm Springs APPROVED AS TO FORM: THE PETERSEN LAW FIRM Gt ory G. PetersoV ATTORNEYS FOR PLAINTIFFS RUTA & TUCITR, LLP r By .- ans Van ATTORNEYS FOR DEFENDANT 23sro14084409&1290543.1 1091 9 -5- IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and General Release of All Claims, and have initialed each page hereof, on the dates set forth below. PLAINTIFFS• Dated: , 1999 q IESS�GESy Dated: / ��' �P , 1999 " KENNETH MOORE DEFENDANT: Dated: , 1999 C OF PALM SP By: C Manager o the City of Palm Springs APPROVED AS TO FORM: THE PETERSEN LAW FIRM J�r Gr gory G. Pete ATTORNEYS FOR PLAINTIFFS RUTAN & TUCKER, LLP By Hans Van Ligten ATTORNEYS FOR DEFENDANT 2MI40844EN132M3.1 309103/99 -5- SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release of All Claims ("Agreement") is entered into by and between JESSE BRIDGES and KENNETH MOORE("Plaintiffs")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. RECITALS A. WHEREAS, there is currently pending a lawsuit entitled Jesse Bridges, et at. v. City of Palm Springs, et at.,Riverside County Superior Court Case No. 086382 (the "Action"). 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 party'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 Plaintiffs the total sum of Thirty Thousand Dollars($30,000.00)in full consideration and settlement of any and all claims by Plaintiffs, including any claims for attorney's fees and litigation costs. Said sum constitutes a full and complete settlement and compromise of the Action, and of all disputes arising out of or related to the Action. Payment in full will be made within fifteen(15)business days of Plaintiffs' counsel presenting to the City Attorney an executed dismissal with prejudice, of the entire Action in Case No. 086382. 2. Release. Plaintiffs hereby release and forever discharge 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 Action), 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 Plaintiffs ever had, now have, 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 Action, or any claims asserted or which could have been asserted in the Action. 4- Initials � z3sm14084-M r S Mes.1 ,os Defendant hereby releases and forever discharges Plaintiffs 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 Defendant ever had, now have, or may claim to have as of the date of this Agreement against Plaintiffs (whether directly or indirectly), 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 Action, or any claims asserted or which could have been asserted in the Action. 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 Releases set forth above in Paragraph 2 of this Agreement are general releases 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. No Other Pending Actions. Plaintiffs represent that they have not filed any claims and/or complaints or charges (other than the Action referenced above and any prior workers compensation claims)against the Released Parties with any local, state or federal agency or court; that they will not file any such claims at any time hereafter; and that if any such agency or court assumes jurisdiction of any such complaint or charge against Defendant, its predecessors, successors, assigns, employees (including but not limited to each of the employees identified or accused in the Action), shareholders, officers, directors, agents, attorneys, subsidiaries,divisions or affiliated corporations or organizations,whether previously or hereafter affiliated in any manner, on behalf of Plaintiffs, whenever filed, they will request such agency or court to withdraw from the matter forthwith. 7. 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 -2- lnitiab( 23L014084409801UM3.1 09103/99 the terms of this 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. 8. 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. 9. Successors 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. Sevembility. 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. 16. 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. -3- lnitialsO 235 I4084-009&32M3.1 a09/03199 17. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that tern, 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. 18. Governing Law. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. 19. 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. [SIGNATURE PAGE TO FOLLOW] -4- Initi 2i5/0140840098I32906 M 209100M IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and General Release of All Claims, and have initialed each page hereof, on the dates set forth below. PLAIlVTI n Dated: —�� , 1999 J� BRIDGE Dated: , 1999 KENNETH MOORE DEFENDANT: Dated: 11999 C OF PALM SPRI By: get of ZCity of Palm Springs APPROVED AS TO FORM: THE PETERSEN LAW FIRM Gregory G. Petersen ATTORNEYS FOR PLAINTIFFS RUTAN & TUCKER, UP By Hans Van Ligten ATTORNEYS FOR DEFENDANT 2M140"4 96192 W43.! ao9/0 M -5- IN WITNESS WHEREOF,the undersigned have executed this Settlement Agreement and General Release of All Claims, and have initialed each page hereof, on the dates set forth below. PLAINTIFFS: Dated: , 1999 E BRIDGES Dated: , 1999 KENNETH MOORE DEFENDANT: Dated: , 1999 OF PALM SPRIN By: 1 ger of a City of Patin Springs APPROVED AS TO FORM: THE PETERSEN LAW FIRM G gory G. Petersen ATTORNEYS FOR PLAINTIFFS RUTAN & TU , By Hans Van 1gt ATTORNEYS FOR DEFENDANT 23"14034409&329043.1 s09i" -5- Minute Order OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS APPROVING A SETTLEMENT AGREEMENT IN THE AMOUNT OF $30,000 BETWEEN JESSE BRIDGES AND KENNETH MOORE AND THE CITY OF PALM SPRINGS. --- - --- - - - -- - - I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement in the amount of$30,000 between Jesse Bridges and Kenneth Moore and the City of Palm Springs, was adopted by the City Council of the City of Patin Springs, California in a meeting thereof held on the 20di day of October, 1999. PATRICIA A. SANDERS City Clerk I ao