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HomeMy WebLinkAbout06581 - KURT KUEHL SETTLEMENT AGR WOODRUFF, SPRADLIN&SMART 555 ANTOV BOULEVARD, SUITE 1200 Cuss MESA, CA 92626-7670 (714)558,7000 MEMORANDUM TO: Geoffrey Kiehl, Director of Finance cc: Jay Thompson, City Clerk FROM: City Attorney DATE: March 14, 2014 RE: Kurt Kuehl v. City of Palm Springs—Case No. INC 1301347 A settlement has been reached in the above-referenced matter, with the City agreeing to pay Plaintiff $49,000,00. This amount is within the settlement amount authorized by the City Council in closed session on February 5, 2014, Attached for your reference is a copy of the fully executed settlement agreement. Please issue payment in the amount of $49,000.00 made payable to "The Law Office of Jeff Yoss, APC, and Kurt Kuehl." Mr. Yoss' tax identification number is 26-2450478. Please do not hesitate to contact me should you have any questions or require additional information. DOUG AS C. HOLLAND Enclosure 989329.1 1 Settlement Agreement and Release of All Claims This Settlement Agreement and Release of All Claims(hereinafter"Agreement")is intended by the Parties hereto to constitute an enforceable contract which fully resolves the disputes and claims as set forth below. The Parties The Parties hereto are Defendant City of Palm Springs(a municipality hereinafter referred to as "The City")and Plaintiff Kurt Kuehl(hereinafter referred to as the"Plaintiff'). Plaintiff and the City are hereinafter referred to collectively as the"Parties"to this Agreement. The Action Plaintiffs allegations of fact are set forth in the immediately following paragraph. On February 4, 2012, at or about 10:30 a.m., Plaintiff was riding his bicycle in or near the gutter area on North Indian Canyon,just past Vista Chino, in the City of Palm Springs. Defendant Jeremy David Graeber was riding his own bicycle in the same direction, on a parallel course, at the same time, and on the same stretch of street,except on the sidewalk. Graeber exited a driveway into Plaintiffs path, causing Plaintiff to swerve. Plaintiff claims that the street was in a dangerous condition; i.e.,that there was a 2"ridge between the gutter concrete and the street asphalt. Plaintiff claims that,when he swerved,the alleged dangerous condition caused or contributed to his fall into a car driven in the same direction of travel as his,parallel to his path,and driven by former Defendant Jill Ann Owens. As a result of the foregoing,Plaintiff and his bicycle fell to the ground and he was injured (hereinafter referred to as the"Accident'). On February 27,2013,after a timely claim with the City was filed by Plaintiff regarding the Accident and was denied by the City, Plaintiff filed a lawsuit concerning the Accident in the 1 986446.1 Riverside Superior Court, bearing case number INC 1301347, and styled as Kurt Kuehl v. City of Palm Springs, a governmental entity, Jill Ann Owens, an individual, Jeremy David Graeber, an individual, and Does 1 - 5, inclusive (hereinafter referred to as the"Action"). The City denies each and every allegation by Plaintiff in the Action, The City further denies that any dangerous condition of public property, as alleged or otherwise, in any way caused or contributed to Plaintiffs Accident or alleged injuries related thereto. It is understood and agreed that this settlement and Agreement is and represents a compromise of a disputed claim, that neither the payments nor the Releases made herein are to be construed as admissions of either fact or liability on the part of any Party hereto,and that Defendants have denied, and continue to deny,the facts alleged in the Action and liability therein. The purpose of this Agreement is to fully,finally,and comprehensively settle and resolve all matters, claims, and disputes, past, current, or future, relevant or related to the events, facts, and circumstances set forth in the Action. Each Party, by entering this Agreement merely intends to avoid further litigation and, as a business decision,to buy his or its peace. The Settlement Previously, defendant Jill Ann Owens settled with Plaintiff for the policy limits of her automobile insurance policy,Thirty Thousand Dollars($30,000.00). She was thereafter dismissed from the Action, with prejudice. Defendant Jeremy David Graeber remains a defendant in the Action, and this Agreement affects neither him, nor Plaintiff's claim against him in the Action, in any way whatsoever. Jeremy David Graeber remains a defendant in the Action. However,neither Jill Ann Owens, nor Jeremy David Graeber, is a Party to this Agreement, and neither derives any rights or obligations whatsoever from this Agreement. Plaintiff, as consideration for this settlement, hereby agrees and covenants to dismiss the 2 986446.1 Action against the City in its entirety, with prejudice, and to bear his own attorneys fees and costs related to the Action against the City. Defendant,as consideration for this settlement,hereby agrees and covenants to bear its own attorneys' fees and costs related to the Action, and agrees to pay Plaintiff the sum of Forty-Nine Thousand Dollars($49,000.00). By instruction from Plaintiff and his attorney,the payment shall be made by a check, listing payees as"The Law Office of Jeff Yoss, APC, and Kurt Kuehl. Mr. Yoss has represented his Tax I.D. No. to be 26-2450478. In further consideration of this settlement,the Parties agree that this settlement is contingent upon approval by the City Council of the City of Palm Springs(hereinafter referred to as the"City Council"). The matter will be submitted for approval not later than forty-five(45)from the date of signing of this Agreement by Plaintiff,and that actual payment of the aforementioned Forty-Nine Thousand Dollars($49,000.00)will take place not later than 30 days after such approval. However, this settlement and this Agreement shall become null and void upon the occurrence of either of the following: A. The City Council disapproves this settlement and Agreement; or B. Payment of the aforementioned Forty-Nine Thousand Dollars($49,000.00) is not made within ninety (90) days of the date Plaintiff signs this Agreement. In further consideration for the settlement and this Agreement,and for the promises set forth above,the Parties,and each of them,do hereby enter into the following Release(hereinafter referred to as the"Release"). Said Parties,and each of them,do hereby and for themselves,individually,and for each of their heirs,executors, administrators,successors,assigns,attorneys,agents,employees, and partners, release, acquit, and forever discharge each of the other Parties and each of those Parties' heirs,executors,administrators,successors,assigns,attorneys,spouses,and past or present employees, agents, contractors,partners, officers, representatives,Council Members, and servants 3 986446.1 (all collectively referred to hereinafter as "Releasees") from any and all rights,claims, warranties, demands, debts, obligations, liabilities, actions, damages, costs, expenses, and other claims whatsoever which they have asserted or might have asserted against any or all of the Releasees by reason of any matter or thing occurring,done,created, or happening,including, without limitation, those based on, arising out of, or connected in any way with the Action. Plaintiff agrees to satisfy any and all liens and subrogation claims relating to his claim for injury or damages that were or could have been asserted in this Action, and to indemnify and hold harmless Defendants and their attorneys from any liability,costs,or attorney's fees arising from any such liens or subrogation claims. This clause shall apply to all liens of any type,including but not limited to liens held by federal or state entities,private entities,and liens for attorney services or any other services, General Provisions The Superior Court of the State of California for the County of Riverside shall retain jurisdiction to enforce the terms of this Agreement pursuant to Code of Civil Procedure section 664.6. It is understood and agreed by the Parties hereto that the facts with respect to which the foregoing Agreement is given may hereafter turn out to be other than, or different from,the facts in that connection now known to be, or believed by the Parties hereto,or any of them, to be true, and the Parties hereto expressly assume the risk of the facts turning out to be different than they now so appear, and agree that the foregoing Release shall be effective in all respects, and not subject to termination or rescission by any such difference in facts. The Parties hereto, and each of them expressly acknowledge and waive any and all rights he, she,or it has or may have under California Civil Code section 1542, which provides as follows: 4 986446.1 "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." Each of the Parties acknowledges that(a)this Agreement is the result of extensive good faith negotiations between them or it through their or its respective counsel; (b) each said counsel has carefully reviewed and examined this Agreement for execution by his client; and(c) 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. Each of the Parties hereto agree that he or it will forever refrain and forebear from commencing, instituting, or prosecuting any lawsuit, action, or other proceeding against any other Party hereto based on,arising out of,or in any way connected with the subject matter of the Action to which this Agreement pertains. Each of the Parties hereto represents and warrants to each Releasee that he or it has not heretofore assigned or transferred,or purported to assign or transfer,to any person,firm,corporation, association, or entity any of the rights, claims, warranties, demands, debts, obligations, liabilities, action, damages, costs, expenses, or other claims whatsoever. Furthermore, each Party agrees to indemnify and hold harmless each Releasee against and from,without limitation,any and all rights, claims, warranties, demands, debts, obligations, liabilities, actions, damages, costs, expenses, or other claims, including attorneys' fees, arising out of, or connected with, any such assignment or transfer, or any such purported assignment or transfer. Each of the Parties hereto acknowledges that he or it has been represented by counsel of his or its own choice in connection with the preparation and execution of this Agreement. Each of the 5 986446A Parties hereto also acknowledge and represent that he or it has read this Agreement in full, understands it,and voluntarily consents and agrees to each and every provision contained herein. Each of the Parties hereto further declares and represents that no promise, inducement,or agreement not herein expressed has been made to him or it,that this Agreement contains the entire agreement among the Parties hereto,and that the terms of this Agreement are contractual and not a mere recital. Finally,each person executing this Agreement represents and warrants to each Party and each Releasee that the execution and performance of the terms of this Agreement have been duly authorized by all requisite corporate,partnership,individual,municipal,or other entity requirements, and that each person executing this Agreement has the right,power, legal capacity,and authority to execute and enter into this Release. Dated 03'0�- 6�,V, 2014 Dated �� ,2014 /G.�'�� --A�"I-&/ City 0116alm Springs,Defendant KuzA Kuehl,Pl intiff Doug s C.Holland City Attorney City of Palm Springs APPROVED AS TO FORM AND CONTENT: Weodruff, Spradlin&Smart Law Office of Jeff Yoss r By Robert L. Kaufman By Jeffrey M.Yoss 6 986446.1