HomeMy WebLinkAbout10/20/1999 - STAFF REPORTS (23) DATE: October 20, 1999
TO: City Council
FROM: Risk Manager via Assistant City Manager, Administration
SETTLEMENT AGREEMENT BETWEEN MANUEL JOE LOREDO, JR., CORINA
MORENO. MONIQUE MARCELLA MORENO AND THE CITY OF PALM SPRINGS
RECON04ENDATION:
Approval of SeWement Agreement between Manuel Joe Loredo, Jr., Coruna Moreno, and
Monique Marcella Moreno and the City of Patin Springs.
BACKGROUND:
The incident giving rise to this claim occurred on January 26, 1998 on East Tahquitz Canyon
Way, near its intersection with Civic Drive, when Manuel Loredo was fatally injured by a City
Of Palm Springs employee in course and scope of his employment driving a City-owned pickup
truck.
Council was apprised of this claim in closed session on September 8, 1999 and directed legal
counsel 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:
hgL�
NANCY JO MC INTOSH DALLAS FLICEK
Risk Manager Assistant City Manager, Administration
PROVED:
o 'L
V
City MkagbT /
ATTACHMENT: Minute Order
a � �
SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release of All Claims("Agreement")is
entered into by and between Manuel Joe Loredo,Jr.,Coring Moreno,and Monique
Marcella Moreno("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.
RFECITALS
A. WHEREAS,there is currently pending a lawsuit entitled Manuel Joe Laredo,
Jr., et al., vs. City Of Palm Springs, et al.,Riverside County Superior Court
Case No.INC 009297(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 fitll 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 Seventy Five Thousand Dollars($75,000)in full consideration and
settlement of any and all claims by Plaintiffs,including any claims for attorneys
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
Plaintiffi'counsel presenting to the City's Special Litigation Counsel an executed
dismissal with prejudice,of the entire Action in Case No.INC 009297.
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'foes,costs and liabilities of any nature
whatsoever,whether or not now known,suspected or claimed,which Plaintiffi
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.
t
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. _Suceesors 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 parry 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.
3
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
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.
PLAINTIFFS•
Dated: 1999
,1 c Manuel
Jr. �*�A.
Dated: [/9'�� 7 9 1999
Corina Moreno
Dated: tL9/%9`/ , 1999
Mo#que \ e11a Moreno
APPROVED AS TO FORM:
LAW OFFICES OF SHELDON G. WELLINS
By
Weldon G. W ins
ATTORNEY FOR PLAINTIFFS
4
DEFENDANT:
Dated: �f �l<f��`� 0999 CITY OF PALM SPRINGS
t
By: Y � ' ')?l t: c'.�i v&,,
Nancy Jo intosly
et
PROVED:
By:
b Par
City Manager
APPRO S TO FO
LAW O E F r E. TUCKER
By:
len E.Tuc ,Special Litigation Counsel
ATTORNEY FOR DEFENDANTS
APPROVED AS TO FORM:
By: 1kdf
Ci mey
A
By:
City Clerk
s
Minute Order 7
OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS APPROVING A SETTLEMENT
AGREEMENT IN THE AMOUNT OF $75,000
BETWEEN MANUEL JOE LOREDO, JR.,
CORINA MORENO, MONIQUE MARCELLA
MORENO AND THE CITY OF PALM SPRINGS.
- - - - - - - - - - - - - -
I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement in the amount
of$75,000 between Manuel Joe Loredo, Jr., Corina Moreno, Monique Marcella Moreno 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 20th day of October, 1999.
PATRICIA A. SANDERS
City Clerk
a �- b