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HomeMy WebLinkAbout06520 - SETTLEMENT AGREEMENT - DOUGLAS CALVIN The following agreements are closed, per Doug Holland, on 03-24-2016, ok to close so long we still have access to them. They are all available in Application Extender. A6827 Villas De Las Flores A6736 Wessman Dev & Friends of PS Mountains A6612 Pacific Hospitality Group A6606 CAPS Collective A6588 People for Proper Planning A6520L-1 Douglas Calvin A6486 Advocates for Better Community Dev A6395 Brandenburg Revocable Trust CITY COUNCIL ACTION SUMMARY WEDNESDAY, MARCH 19, 2014 CALL TO ORDER: 6:08 P.M. ROLL CALL: Mills Absent. REPORT OF CLOSED SESSION: City Attorney Holland stated the City Council approved the settlement in Existing Litigation Case No. INC 1302511 Douglas Calvin v. City of Palm Springs et al., by unanimous vote (4-0), noting absence of Councilmember Mills., and reported the City Council approved an amicus brief for Orange Citizens for Park and Recreation v. Superior Court, City of Orange, Case No. S212800, by unanimous vote (4-0), noting absence of Councilmember Mills. ACCEPTANCE OF THE AGENDA: Councilmember Foat requested Item 2.N. be removed from the Consent Calendar for separate discussion, and noted her abstention on Item 2.C. Warrant Nos. 1069353 and 1069436. Councilmember Lewin noted his abstention on Item 2.D. and Item 2.M. Councilmember Hutcheson noted his business related abstention on Item 2.D. City Clerk Thompson recommended the City Council table Item 2.D. to April 2, 2014. Mayor Pougnet requested Item 2.G. be removed from the Consent Calendar for separate discussion. ACTION: Accept the Agenda as amended. Motion Mayor Pro Tem Hutcheson, seconded by Councilmember Foat and unanimously carried 4-0 on a roll call vote. AYES: Councilmember Foat, Councilmember Lewin, Mayor Pro Tern Hutcheson, and Mayor Pougnet. NOES: None. ABSENT: Councilmember Mills. 1. PUBLIC HEARINGS: Councilmember Foat stated she has a business related conflict of interest with respect to the funding of the Mizell Senior Center in Item 1.A., would not participate in the discussion or the vote on that portion of the item, and left Council Chamber. 1.A. 40TH PROGRAM YEAR COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) 2014-15 ANNUAL ACTION PLAN AND CDBG BUDGET APPROVAL, AUTHORIZATION TO SUBMIT TO THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT GRANT NO. B-14-MC-06-0561 IN THE AMOUNT OF $317,336, AND APPROVING SUBRECIPIENT AGREEMENTS: ACTION: Approve CDBG funding for the Mizell Senior Center Energy- Efficiency Kitchen Upgrades in the amount of$27,074. Motion Mayor Pro 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"),Jimmie's Tree Service,Inc.(a private company hereinafter referred to as"Jimmie's"), Lazaro Padilla Garcia dba Padilla Tree Service (a private company hereinafter referred to as "Padilla"), and Plaintiff Douglas Calvin (hereinafter referred to as the "Plaintiff'). Plaintiff, Jimmie's, Padilla, and the City are hereinafter referred to collectively as the "Parties" to this Agreement. "Defendants" hereafter refers collectively to Jimmie's, Padilla and the City. The Action Plaintiff alleges injuries arising from an incident which occurred on November 4, 2012 (hereinafter referred to as "Accident"), as more fully described in undersigned's First Amended Complaint filed in the Superior Court of the State of California,County of Riverside,Indio Branch, as Case No. INC 1302511 (hereinafter referred to as the"Action"). Defendants deny each and every allegation by Plaintiff in the Action. 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 thatDefendants have denied, and continue to deny,the facts alleged in the Action and liability therein. 1 990110.1 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 into this Agreement merely intends to avoid further litigation and, as a business decision, to buy his or its peace. The Settlement Plaintiff, as consideration for this settlement, hereby agrees and covenants to dismiss the Action against Defendants in its entirety,with prejudice,and to bear his own attorneys fees and costs related to the Action against Defendants. City, 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 Fifty-two Thousand Dollars ($52,000.00). Jimmie's, 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 One Thousand Five Hundred Dollars ($1,500.00). Padilla,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 One Thousand Five Hundred Dollars ($1,500.00). By instruction from Plaintiff and his attorney,the payment shall be made by a check, listing payees as "Douglas Calvin and Law Offices of Mark W. Edelstein". Payment shall be delivered to counsel for Plaintiff and made within ten(10)business days after this Agreement is fully executed by all parties. 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 2 990110.1 Parties'heirs,executors,administrators,successors,assigns,attorneys,spouses,and past or present employees,agents,contractors,partners, officers,representatives, Council Members,and servants (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. The Parties understand and acknowledge that the terms of this settlement shall be confidential and that he/she/it will not disclose to any person the terms and conditions or circumstances of this settlement, except as lawfully compelled by a court of competent jurisdiction, or as required to obtain approval from City Council of City of Palm Springs. Notwithstanding the foregoing, the Parties may say that all disputes and lawsuits have been settled to the parties' satisfaction. 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 Medicare, any other federal or state entity, private entities, and liens for attorney services or any other services. Medicare The parties agree that the plaintiff is a Medicare beneficiary, It is not the intention of the parties to shift the responsibility of conditional payments to Medicare. In accordance with the Medicare Secondary Payer Act,the parties have the legal responsibility to reimburse any conditional payments made regarding this incident of November 4, 2012 to Medicare. 3 990110.1 Plaintiffs counsel will contact Medicare to determine whether any conditional payments have been made and to obtain a final demand from Medicare. Out of the $55,000.00 settlement amount, the Plaintiff s attorney will hold $5,000.00 in escrow to satisfy Medicare's final demand when it is received. Plaintiff's attorney will also forward a copy of the satisfaction letter from Medicare to counsel for the Defendants within six months after settlement. Ifthe amount of the Medicare conditional payment is in excess of$5,000.00,the plaintiff will pay any overage out of the remaining settlement proceeds and agrees to fully satisfy,indemnify,and hold the defendants harmless from any and all penalties,liens,conditional payments,demands,and actions in law or equity, regarding plaintiff's responsibility to satisfy Medicare's interests. Any residual can be released to plaintiff once the demand is satisfied. The interests of Medicare must be taken into account regarding future medical payments necessitated by plaintiff's injuries suffered on November 4,2012. Plaintiff acknowledges that this settlement may affect Plaintiff s Medicare benefits for any future related medical care. Nevertheless Plaintiff knowingly agrees to accept this settlement and enter into this Agreement. Upon receipt of the payment by Defendants, it is plaintiffs obligation, knowing he has received funds to cover future health care costs,to ensure that Medicare is secondary to plaintiff for payment of medical items and services related to the liability settlement. Any costs attributable to Medicare for these future health care costs are to be satisfied by plaintiff from the proceeds of this agreement. Should those future health care costs exceed the proceeds of this agreement, plaintiff shall be solely responsible for satisfying the balance. Defendants and their professional liability carriers will have no further responsibility for plaintiffs future health care costs. The plaintiff agrees to fully satisfy, indemnify, and hold the defendants harmless from any and all penalties, liens, conditional payments, demands, and actions in law or equity, or other 4 990110.1 payments that may be required if any of the plaintiff's representations as to his entitlement(or lack thereof)to Medicare of Social Security benefits is in any way misrepresented. Further,the parties acknowledge that this case is reportable under the SCHIP law and that plaintiff will cooperate with defendants so that the defendants may fulfill all reporting requirements, The plaintiff also understands and agrees that such liability as he may or have incurred, arising now or in the future, as a result of health care services provided to the plaintiff,is expressly reserved to each and every care provider or payer based on such services,such liability not being in any way waived,agreed upon,discharged,or settled by this release. This specifically includes but is not limited to any liability the plaintiff may have to any hospital, healthcare provider, medical provider, medical supplier, Medicare or Medicaid. If any subrogation claims, liens, or rights to payments of any kind against these settlement proceeds do in fact exist,the plaintiff shall distribute these funds in accord with such claims, liens or rights to payment(or shall direct his attorney to do so). 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 5 990110.1 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: "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. 6 990110.1 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 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 contai ns 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 Releashe that the execution and performance of the terms of this Agreement have been duly authorized by 4requisite 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, J Date L 2014 Dated y/`/� �6. 2014 t _ pangs,Defendant Dougla Calvin,Plaintiff Doug] s C.Holland City Attorney City of Palm Springs Dated 2014 Dated 2014 Lazaro Padilla Garcia dba Jimmie's Tree Service,Inc.,Defendant Padilla Tree Service,Defendant Monna Vaipulu, Lazaro Padilla Garcia President President 7 990[10.1 APPROVED AS TO FORM AND CONTENT; Wupdru,, Sprafillin �a1,t From & romberg By Dougl 0, Lief By Mark E. Edelstein Z' Ropers, Majeski,Kohn &Bentley Hosp, Gilbert&Bergsten By Tim M. Ag,janian By Robert T. Bergstein 8 990110.1 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 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 2014 Dated _ 2014 City of Palm Springs,Defendant Douglas Calvin,Plaintiff Douglas C,Holland City Attorney City of Palm Springs / Dated ,2014 Dated %) 'l 12014 Lazaro Padilla Garcia dba Jimmie's free Service,Inc, efendant Padilla Tree Service;Defendant Moms Vaipulu, hazaro Padilla Garcia President President APPROVED AS TO FORM AND CONTENT: 7 YN1i Ie.1 Woodruff,Spradlin do Smart Fromberg:Edelstein&Fromberg By Douglas J.Lief By MarkE,Edelstein Ropers,Majesld Kohn&Bentley Hosp.Gilbert&Bergsten rp By Tim M.Agai�� B Robert T.Bergsteiu 8 ._,.... ..._, ,......., ..,o ¢loos Dated M(M1 N 1,k 2 "' ,2014 Dated 2014 Lazaro adilla(). da dba Jimmie's Tree Service,Inc.,Defendant Padilla Tree Service,Defendant Monm Vaipulu, Lazsro Padilla Garcia President President APPROVED AS TO FORM AND CONTENT: Woodruff Spradlin&Smart Fromberg Edelstein&Fromberg By Douglas J.Lid Sy Mark E.Edelstein Rop l�ohn&Bentley Hosp,Gilbert&Bergsten r' j aA By Robert T,Bergstein DDDuo,t $ F{OS/'+3D6fi0 6.1/ax5