Loading...
HomeMy WebLinkAbout06582-1 - NATHAN EDWARD ALLEN AND THOMS DAVIS SETTLEMENT AGR Memorandum To: James Thompson, City Clerk Geoff Kiehl, Director of Finance From: Douglas Holland, City Attorne 7i Date: December 11, 2013 Re: Settlement Agreements Nathan Edward Allen and Thomas Davis On September 18, 2013, the City Council approved settlements with Nathan Edward Allen and Thomas Davis regarding an incident that occurred on April 19, 2011. (Riverside Superior Court Case Nos. INC1204910 and INC1204372.) Copies of the two settlement agreements are attached for your records. Please prepare checks payable as follows: $25,000.00 payable to: "Nathan Edward Allen and the Skapik Law Group, his attorney." $30,000.00 payable to `Thomas Davis and Walter Clark Law Group, his attorney." Please deliver the checks to me as soon as possible.If you have any questions, please do not hesitate to give me a call. GENERAL RELEASE AND SETTLEMENT AGREEMENT NATHAN EDWARD ALLEN v. CITY OF PALM SPRINGS and ERIC KAMEO GOYA RCSC Case No: INC1204910 This General Release and Settlement Agreement [hereinafter "Agreement"] is entered into between PLAINTIFF NATHAN EDWARD ALLEN, and his agents, attorneys, servants, employees, representatives, and successors in interest [hereinafter "PLAINTIFF"], and the CITY OF PALM SPRINGS and ERIC KAMEO GOYA and their agents, officers, directors, attorneys, servants, representatives, employees, predecessors, successors in interest, assignees, [hereinafter referred to as "DEFENDANTS"] concerning the incident occurring on or about April 19,2011,which is the subject of Riverside County Superior Court Case No. INC 1204910 [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 they 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 DEFENDANTS CITY OF PALM SPRINGS and ERIC KAMEO GOYA is Twenty-Five Thousand Dollars and no/100 ($25,000.00). PLAINTIFF, by his signature on this Agreement, specifically represents and authorizes DEFENDANTS 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 "NATHAN EDWARD ALLEN and THE SKAPIK LAW GROUP,his attorney." Page F of 5 960467A 3. PLAINTIFF'S RELEASE A. In consideration of the payment referred to herein, PLAINTIFF hereby fully and forever completely releases, acquits and discharges DEFENDANTS CITY OF PALM SPRINGS and ERIC KAMEO GOYA 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. B. PLAINTIFF specifically agrees to hold DEFENDANTS harmless, and to indemnify DEFENDANTS 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 have arisen or may arise from the INCIDENT. C. PLAINTIFF agrees to hold DEFENDANTS harmless and to indemnify DEFENDANTS for and against any claim made by PLAINTIFF, his agents, attorneys, servants, employees, representatives, and successors in interest against DEFENDANTS 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 1204372. 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 DEFENDANTS therefrom. PLAINTIFF is aware of the provisions of California Civil Code section 1542, which provides: "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." Page 2 of 5 9lIW67,1 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 they have 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 he 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 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. S. 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 terms 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 his respective counsel; (2) said counsel have carefully reviewed and examined this Page 3 of 5 %0467.1 Agreement for execution by PLAINTIFF; 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. G. Paragraph Headings: Paragraph headings are 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 his 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 he has been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 1. Attorney's Fees and Costs in this Action: PLAINTIFF will bear his own attorney's fees and costs incurred in connection with the prosecution and defense of the subject Action. PLAINTIFF specifically releases the DEFENDANTS from attorney's 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's fees. J. Counterparts: This Agreement may be executed in counterparts 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. K. Effective Date: This 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 his signature. Page 4 u1'5 9ranaz i Dated: plamOCl' ITMIV FD AS TO FORM A N 1) CHN i I-N-j: SKAPT11- LAkh Dawd. BRY.AN L. M("NALLY I'lainti,I' C!I Y Ol 1")1 SPRIMi.; Datc& a[TIC) DMC& ------ NOC l,"AiMEXi GOYA Defelifictni. APPROVE[) AS I'() FORM AND (NTFN i : SNIART liatttl ROB R I'L. N A PI 'VIA Al"ol"ICY" foi GOVA WlLJlLY 1.� 11AI wnu cn UAKV ff417608Q1121 P.003/009 GENERAL RELEASE AND SETTLEMENT AGREEMENT THOMAS DAVIS V.GUY OF PALM WRINGS NATHAN EDWARD ALLEN and ERIC KAMEO GOYA RCSC Case No: INC1204372 Ibis General Release and Settlement Agreement [hereinafter "Agreement"] is entered into between PLAINTIFF THOMAS DAVIS, and his agents, attorneys, servants, employees, representatives, and successors. in interest [hereinafter "PLAINTIFF"], and the CITY OF PALM SPRINGS and ERIC KAMEO GOYA and their agents, officers, directors, attorneys, servants;. representatives, employees, predecessors, successors in interest, assignees, [hereinafter referred to as "DEFENDANTS"] concerning the incident occurring on or about April 19, 2011, which is the subject of Riverside County Superior Court Case No. INC1204372 [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 they 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. i. DnRODUCT10N 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 DEFENDANTS CITY OF PALM SPRINGS and ERIC KAMEO GOYA is Thirty Thousand Dollars and no/100 ($30,000.00). PLAINTIFF, by his signature on this Agreement, specifically represents and authorizes DEFENDANTS 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 960529.1 Page 1 of 6 OCT-26-2013 11:41 1 760 862 1121 94% - P.003 �•- ,-41 ,vn,mnu.AKK 0:A17608621121 P.00410119 PLAINTIFF expressly direct that payment of the settlement proceeds he made payable to "THOMAS DAVIS and WALTER CLARK LAW GROUP,his attorney." 3. PY.AIIV7`II ,S RgI,EASF. A. In consideration of the payment referred to herein,PLAINTIFF hereby fully and forever completely releases, acquits and discharges DEFENDANTS CITY OF PALM SPRINGS and MUC KAMEO GOYA 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. B. PLAINTIFF specifically agrees to hold DEFENDANTS harmless, and to indemnify DEFENDANTS 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 have arisen or may arise from the INCIDENT. C. PLAINTIFF agrees to hold DEFENDANTS harmless and to indemnify DEFENDANTS for and against any claim made by PLAINTIFF, his agents, attomeys, servants, employees, representatives, and successors in interest against DEFENDANTS which may have arisen or may arise from the INCIDENT. 4. DISi41ISSAL PLAINTIFF shall cause his attorney to execute a Request for Dismissal, with prejudice,dismissing Case No.INC1204372. 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 DEFENDANTS therefrom. PLAINTIFF is aware of the provisions of California Civil Code section 1542, which provides: 960529.1 Page 2 of 6 OCT-25-2013 11:41 1 760 862 1121 94% P.004 ....�+.�.+..+ 11.41 n IMLLNRR- W7608V 1121 P.00Si009 "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. ASS[JNiPTION 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 agree 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 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 TRAN8FE� 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 terms of this Agreement. 9. MISCELLANEOUS PROVISIONS A. F=ke 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. 960529.1 Page 3 of 6 OCT-25-2013 11:41 1 760 862 1121 94: P.005 iumamuia IIAIrIALICKLLAKV TA101 760 80 1121 P.0061009 13. 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 his respective counsel; (2) said counsel have carefully reviewed and examined this Agreement for execution by PLAINTIFF; 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. R. Intemretative 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. G. Paragraph Headings: Paragraph headings are 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 his representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. PLAINTIFF further represents that they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and he has been advised by legal counsel with respect to the meaning of this Agreement and its Iegal effect. I. Attomev's Fees and Costs in this Action: PLAINTIFF will bear his own attorney's fees and costs incurred in connection with the prosecution and defense of the subject Action. PLAINTIFF specifically releases the DEFENDANTS from attomey's 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's fees. Page 4 of 6 960329.1 OCT-25-2013 11:41 1 760 862 1121 94% P.006 - .I nALIc6 LLAK& f4l 760W 1121 P.0071009 I. INDEPENDENT 4MNUCE OF COUNSEL: The undersigned, executing g this Agreement,furtherrepresentsanc declares to the parties hereby released,that they rely wholly upon their own j udgment,belief,and knowledge of the nature, extent and duration of their claimed damages, and the advice and recommendations of their own independently selected counsel; and that by executing this Agreement the undersigned further represents and declares to the parties hereby released that they shall not deny the validity of this Agreement upon the ground that they did not have advice of counsel. I. VOLUNTARY A RRFMENT: The undersigned further represents anddeclares that they have carefally read this Agreement, knows the contents thereof, and that they have signed the Agreement freely and voluntarily; and, furthermore,the undersigned by executing this Agreement represents to the parties hereby released that they shall not deny the validity of this Agreement upon the ground they executed the Agreement under duress or without capacity. K. R PRESENTATIONS 13y pARTIFc URY RELEASED: The undersigned further declares and represents that in giving this General Release or in executing this Agreement,they have not been influenced to any extent whatsoever by any represen- tations or statements made by the person,firm or corporations who are hereby released, or by any person or person representing them. IV. SUBSEOUENT DISPUTE BETWEEN PARTIES The parties may take action in law or equity required to enforce the rights under this Agreement. The prevailing party in any such action shall be entitled to recover from any other party, such sum as the Court adjudicates as being reasonable compensation for attorneys'fees and costs so incurred. DATED:V%V\] THOMAS DAVIS Li DATED: ESLIE DA S Plaintiff (signatures dowinue on page 6] Page 5 of 6 OCT-25-2013 11:41 1 760 862 1121 94% P.007 � �+ii+ .+ i I.ML RALILR LLRRR- OW 7608Q 1121 P.0081009 APPROVED AS TO FORM AND CONTENT: DATED: 10 1 17, 13 LTER LARK LEGAL GROUP Dou rewer,Esq. A omey for Plaintiffs Page 6 of 6 OCT-25-2013 11:42 1 760 862 1121 94% P.000