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Home My WebLink About06068 - DOREL NANNA SETTLEMENT AGR WOODRUFF, SPRADLIN &SMART n P r o 1 e e s I o n a I C o r p o r a e I e n DIREM DIAL:(7 14)415-1016 DIRECT FAX.(714)415-1116 E-MAIL:CFARRINGTONO,WSS-LAW.COM March 25, 2011 Robert S. Levin, Esq. LEVIN &HOFFMAN,LLP 23622 Calabasas Road, Suite 253 Calabasas, CA 91302 Re: Dorel Nanna v. City of Palm Springs, et al. Dear Bob: Enclosed please find a copy of the fully executed General Release and Settlement Agreement in the above-referenced matter. Thank you again for your courtesy and cooperation in the handling of this matter. If you should have any questions,please do not hesitate to contact me. Cordially, WOODRUFF, SPRADLIN & SNART A Professional Corporation f CRAIG G. FAR14NGTON I Enclosure cc: Jill Sibler,Carl Warren& Company,with enclosure Randy Bristow, Everest National Insurance Company,with enclosure 555 ANTON BOULEVARD,SUITE 120U■COSTA MBA,CA 92626-7670 ■(714)558-70(k•FAX(714)835-7787 W W W.W'SS-LAW.COM 75A8fi8.1 GENERAL RELEASE AND SETTLEMENT AGREEMENT Dorel Nanna v. City of Palm Springs. et al. Riverside County Superior Court Case No. INC-08698E This General Release and Settlement Agreement [hereinafter "Agreement"] is entered into between Plaintiff DOREL NANNA, and his agents, attorneys, servants, employees, representatives, and successors in interest [hereinafter "PLAINTIFF"], and the CITY OF PALM SPRINGS, and its agents, officers, directors, attorneys, servants, representatives, employees, predecessors, successors in interest, assignees, [hereinafter referred to as "DEFENDANT"] concerning the incident occurring on or about September 17, 2008, which is the subject of Riverside County Superior Court Case No. INC-086985 [hereinafter referred to as the "INCIDENT"]. The above-named individuals and entities are hereinafter collectively referred to as the 'Parties," with respect to the litigation and claims described below. The Plaintiff Represents as Follows. A. That he expressly has the authority to execute this Agreement, and that this Agreement as so executed will be binding upon the PLAINTIFF; and B. That the representations set forth above shall endure forever and shall survive the execution of this Agreement and the settlement and dismissals of the action. 1. INTRODUCTION PLAINTIFF desires to enter into this Agreement in order to provide for payment in full settlement and discharge of all claims between the Parties which have arisen, may arise and/or could arise, out of the subject claim, upon the terms and conditions set forth herein. 2. CONSIDERATION The total consideration paid to PLAINTIFF on behalf of DEFENDANT is One I lundred Seventy-Five Thousand Dollars ($175,000.00). PLAINTIFF, by his signature on this Agreement, specifically represents and authorizes DEFENDANT to rely on said representation, that no attorneys fee lien(s) have been, or will be, placed upon this settlement except as to his attorneys, and that PLAINTIFF expressly directs that payment of the settlement proceeds be made payable to "DOREL NANNA and LEVIN & HOFFMANN,LLP,his attorneys." 3. PLAINTIFF'S RELEASE A. In consideration of the payment referred to herein, PLAINTIFF hereby fully and forever completely releases, acquits and discharges DEFENDANT from any and all claims, costs, demands, damages, attorney fees, and rights which arise from, or are directly or indirectly related to,or are connected with, or caused by, the INCIDENT. Page 1 of 4 755505J B. PLAINTIFF specifically agrees to hold DEFENDANT harmless,and to indemnify DEFENDANT for and against any lien, any lienholder, its agents, officers, directors, shareholders, attorneys, servants, representatives, employees, subsidiaries,partners, predecessors, successors in interest, assignees, firms, or corporations which has arisen or may arise from the INCIDENT. C. PLAINTIFF agrees to hold DEFENDANT harmless and to indemnify DEFENDANT for and against any claim made by PLAINTIFF, his agents, attorneys, servants, employees, representatives, and successors in interest against DEFENDANT which may have arisen or may arise from the INCIDENT. 4. DISMISSAL PLAINTIFF shall cause his attorney to execute a Request for Dismissal, with prejudice, dismissing Case No. INC-086985. 5. WAIVER OF SECTION 1542 There is a risk that, after the execution of this Agreement, PLAINTIFF will manifest new damages, the scope, location, and character of which is unknown and/or not discovered at the time this Agreement is signed. There is a risk that the damage of which PLAINTIFF and his attorneys presently are aware may become more serious or otherwise increase in magnitude (qualitatively and/or quantitatively). PLAINTIFF shall, and hereby does, assume the above-mentioned risks. This release is expressly intended to cover and include all future damages, defects and discoveries, including all rights and causes of action arising against the DEFENDANT therefrom. PLAINTIFF is aware of the provisions of California Civil Code section 1542,which provide: 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. PLAINTIFF hereby expressly waives the provisions of said.Section 1542 as to all matters within the scope of the claims released hereby. PLAINTIFF hereby warrants and guarantees that he has full and complete authority to release all such claims on behalf' of himself; his heirs, assigns,and successors in interest. 6. ASSUMPTION OF RISK PLAINTIFF fully understands and declares that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, PLAINTIFF assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. PLAINTIFF represents and covenants that he is fully informed regarding all facts related to this Page 2 of 4 7555o5A Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. 7. NO ADMISSION OF LIABILITY It is expressly understood, acknowledged and agreed to by the Parties, that by reason of entering into this Agreement, no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, whether or not referred to herein, or the sufficiency of any claims, allegations, assertions, or positions of any party; no party has made any such admissions; and this Agreement is entered into solely by way of compromise and settlement only. 8. NO PRIOR ASSIGNMENT OR TRANSFER Each party to this Agreement represents and warrants there has been no assignment or other transfer of any claims or causes of action which they are releasing pursuant to the terns of this Agreement. 9. MISCELLANEOUS PROVISIONS A. Entire Agreement: This Agreement constitutes the full and entire Agreement between the Parties hereto and such Parties acknowledge that there is no other Agreement, oral and/or written, between the Parties hereto. B. Authority to Enter Agreement: This Agreement is the result of arms-length negotiations. C. Final Agreement: PLAINTIFF acknowledges that (1) this Agreement and its reduction to final form is the result of extensive good faith negotiations between the Parties through their respective counsel; (2) said counsel have carefully reviewed and examined this Agreement for execution by PLAINTIFF, or any of them; and (3) any statute or rule of construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. D. Binding Agreement: This Agreement is and shall be binding upon and shall inure to the benefit of the predecessors, subsidiaries, successors, assigns, parties, agents, officers, employees, associates, legal representatives, heirs, executors and/or administrators of each of the Parties hereto. E. Interpretative Law: This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. F. Modifications: This Agreement may be amended or modified only by a writing signed by all Parties to this Agreement. Page 3 of 4 755505.1 G. Paragraph Headings: Paragraph headings arc for reference only and shall not affect the interpretation of any paragraph hereto. H. No Inducement: PLAINTIFF warrants that no promise or inducement has been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. PLAINTIFF further represents that he has been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and she has been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 1. Attorney Fees and Costs in this Action: PLAINTIFF will bear his own attorney fees and costs incurred in connection with the prosecution and defense of the subject Action. PLAINTIFF specifically releases the DEFENDANT from attorney fees and costs, including costs of investigation. Should any action be necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees. M. Counterparts: This Agreement may be executed in counter-parts with the same effect as if all original signatures were placed on one document and all of which together shall be one and the same Agreement. N. Effective Date: 'Phis Agreement to be effective as of the date all signatures are obtained. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and mutual release on the date affixed by their signature. Dated: By: DOREL NANNA, Plaintiff APPROVED AS TO FORM: Dated: By: ROBERT S. LEVIN,Attorney for Plaintiff CITY OF PALM SPRINGS Dated: By = DAVID READY, Clty-Mi alter, t< APPROVED AS TO FORM: �r \ Dated: r� �'v !j By: ' Craig G�Farr n on,Esq. WOODRUF RADL,IN& SMART' Attorneys f r Defendants Page 4 of 4 755505.1 G. Paragraph Headings: Paragraph headings are for reference only and shall not affect the interpretation of am'paragraph hereto. H. N' A 1_rdacexncnt: PLAINTIFF warrants that no promise or inducement has been made or otTered by arty of the Parties, except as set forth herein,and that this Agreement is not executed in reliance upon anv statement or representation of any of the Parties or their representatives, concerning the nature and extent of the injuries, damages or legal liability hereof: PI,AINTIF'F further represents that he has been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement,and she has been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 1. Attomey Fee,I-Rnd Costs in this ction: PLAINTIFF will bear his own atiomey fees and costs incurred in connection with the prosecution and defense of the subject Action. PLAINTIFF specifically releases the DEFENDANT from attorney fees and costs,including costs Of investigation. Should any action be necessary to enforce this Agreement,the prevailing party shall be entitled to reasonable attorney fees- M. Counteroatts: This Agreement may be executed in counter-pans with the same effect as if all original signatures were placed on one document and all of whiell together shall be one and the same Agreement. N. F;fndve Date: This Agreement to be effective as of the date all signatures aze obtained. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and mutual release on the date affixed by their signature. Dated: l ZOlt B APPROVED AS TO FORM: DO ,.NAi�{NA,Plaiuti! j Dated: / By t ,Atiorney for Plain?:ff CITY01' R}PUS Dated: DAVID READY, City Manager APPROVED AS'l'O FORM: Dated: Craig G. Farrington,Esq. `� WOODRUFF, SPRADLIN&SMART Attorneys for Defendants tsssas.i Page of