Loading...
HomeMy WebLinkAbout06099 - ROBERT BUCKLEY AND YEVETTE STONE-PATTERSON SETTLEMENT AGR CITY COUNCIL AND COMMUNITY REDEVELOPMENT AGENCY CITY OF PALM SPRINGS, CALIFORNIA 1) CLOSED SESSION AGENDA Wednesday, November 3, 2010 —4:00 P.M: City Hall, Small Conference Room 3200 East Tahquitz Canyon Way, Palm Springs CONFERENCE WITH LEGAL COUNSEL. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following described matter(s) will prejudice the position of the City in existing and anticipated litigation. EXISTING LITIGATION G.C. 54856.9(a) 1 Robert Buckley and Yevette Stone-Patterson vs. City of Palm Springs Case No. INC 088956, Riverside Superior Court, Indio Division 2. Stephanie Casavan v. City of Palm Springs Case No. INC 10001472, Riverside Superior Court, Indio Division 3. Gay Le Vee vs. John Wessman, et al Case No. INC 091559, Riverside Superior Court, Indio Division 4. City of Palm Springs v. Burnett Development et. al. Case No. INC 076710, Riverside Superior Court, Indio Division EXPOSURE TO LITIGATION G.C. 54856.9(b) Four Case(s). INITIATION OF LITIGATION G.C. 54856.9(c) Three Case(s). CONFERENCE WITH REAL PROPERTY NEGOTIATOR G.C. 54956.8 Property Address/Description: A portion of the 4.41 acre site located at Southeast Corner of Alejo and North Palm Canyon Agency: City of Palm Springs City Negotiator: David Ready, City Manager or Designee Negotiating Parties: Lawrence Rael, Palm Springs LLC Under Negotiation: Price and Terms of Payment (Purchase) WOODRUFF, SPRADUN&SMART 555 ANTON BOULEVARD, SUITE 1200 COSTA MESA, CA 92626-7670 (714)558-7000 DIRECT DIAL:(714)415-1064 DIRECT FAX:(714)415.1164 &MAIL:wader@wss-1aw.0= MEMORANDUM CONFIDENTUL ATTORNEY-CLIENT PRIVILEGE HAND DELIVERED TO: David H. Ready,Esq.,Ph. D. City Manager James Thompson City Clerk Geoffrey S. Kiehl Director of Finance and Treasurer Douglass C. Holland, Esq. City Attorney City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 FROM: Steven L. Rad DATE: August 17, 2011 RE: Buckley, et al. v. City of Palm Springs Riverside Superior Court Case No. INC 088956 Settlement with Plaintiff Robert Buckley Enclosed please find the original and three photocopies of the Settlement Agreement executed by Plaintiff Robert Buckley in the above-referenced litigation. Last November, we received authorization to settle Mr. Buckley's claims for a sum not to exceed $75,000.00. As the enclosed agreement reflects, Mr. Buckley has agreed to dismiss his suit against the City in exchange for payment of$69,000.00. Once the agreement is executed by Mr. Ready on behalf of the City it, should be delivered to Mr. Thompson for filing in the City's records. Mr. Kiehl should then issue a check per the agreement to Mr. Buckley's attorney, David Justin Lynch and Associates, APLC. The Tax Identification Number for Mr. Buckley's attorney is as stated in the enclosed W-9 form. As the settlement agreement reflects, all liens are to be paid by Mr. Buckley's attorney. 781029.1 August 17, 2011 Page 2 By way of background, Mr. Buckley was driving an automobile which was involved in a traffic collision with a City of Palm Springs Police Department vehicle on June 18, 2009. Please note that although the matter has settled, neither the City nor its police officer has admitted any fault or liability whatsoever. 781029.1 It GENERAL RELEASE AND SETTLEMENT AGREEMENT This general release and settlement agreement [hereinafter "Agreement"] is entered into between Plaintiff ROBERT BUCKLEY and his agents, attorneys, servants, employees, representatives, and successors in interest [hereinafter "PLAINTIFF"], on the one hand, and on the other hand, the CITY OF PALM SPRINGS, and its agents, officers, directors, attorneys, servants, representatives, employees, predecessors, successors in interest, and assignees, [hereinafter referred to as "DEFENDANTS"] concerning the incident occurring on or about June 18, 2009, which is the subject of Riverside County Superior Court Case No. INC 088956 [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 dewn'bed 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 INCIDENT,upon the terms and conditions set forth herein. 2. CONSIDERATION The total consideration paid to PLAINTIFF to be paid by the CITY OF PALM SPRINGS alone on behalf of DEFENDANTS is Sixty-Nine Thousand Dollars and zero cents ($69,000.00) ("Settlement Amount"). PLAINTIFF 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"David Justin Lynch Attorney Trust Account". 3. PLAINTIFF'S RELEASE A. In consideration of the payment be Settiment Amount referred to herein, PLAINTIFF hereby fully and forever completely releases, acquits and discharges DEFENDANTS, including, but not limited to, CTP' OF PALM SPRINGS and DEFENDANT POLICE OFFICER CARY CARILLO, from any :5,nd all claims, costs, demands, damages, Page t of 5 779808.1 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 and his attorney specifically agree to hold DEFENDANTS harmless, and to indemnify DEFENDANTS from all claims, liabilities, losses, damages, costs and expenses, including, without limitation, legal fees and disbursements, incurred by DEFENDANTS by reason of any claims or litigation relating to any lien or any lienholder and their 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 this settlement,or Settlement Amount. By: "LA Plaintiff ROBERT BU EY By: DAVID JUSTIN LYNCH,Esq. Attorney for Plaintiff C. PLAINTIFF and his attorney agree to hold DEFENDANTS harmless and to indemnify DEFENDANTS from all claims, liabilities, losses, damages, costs and expenses, including, without limitation, legal fees and disbursements, incurred by DEFENDANTS by reason of any claim made by PLAINTIFF, his agents, family members, attorneys, servants, employees, representatives, and successors in interest against DEFENDANTS which may have arisen or may arise from the INCIDENT,this settlement,or Settlement Amount. By: Plaintiff ROBERT BU I By: DAVID dUST1N LYNCH,Esq. Attorney for Plaintiff 4. DISMISSAL PLAINTIFF shall cause his attomey to execute a Request for Dismissal, with prejudice, dismissing his lawsuit filed in Riverside County Superior Court, Case No, INC 088956, no later than five (5) business days after receipt of the Settlement Amount. PLAINTIFF may not negotiate the draft for the Settlement Amount until the Dismissal is filed with the court, or DEFENDANT is in possession of a properly executed original of the Dismissal. 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 Page 2 of 5 779808.1 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 most 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 wan-ants 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 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 impliodly,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 A,a45IGNMENT 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. Page 3 of 5 779809.1 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 A¢rccment: 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, patties, agents, officers, employees,associates, legal representatives, heirs, executors and/or administrators of each of the Parties hereto. E. Interoretative 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. Pareeranh Headinrts: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. H. No Ind__, u _cement: 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 father 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. I. AtEomev Fees and Costs ip this Action: PLAINTIFF will bear his own attorney fees and costs incurred in connection with the prosecution and defense of the subject action and INCIDENT. PLAINTIFF specifically releases the DEFENDANTS :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. Page 4 of 5 7798M.1 J. Cowteroarts: 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. 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 their signature. Dated: ? / // By: Plaintiff ROBERTBUCKLEY Dated: CITY OF PALM SPRINGS DAVID H. q.,Ph.D. APPROVED AS TO FORM AND CONTENT: Dated: WOODRUFF LIN RT,APC STEVEN L.RADER,Esq.. Attorneys for Defendants CITY OF PALM SPRINGS and CARY CARILLO,Police Officer, CITY OF PALM SPRINGS POLICE DEPARTMENT Dated: DAVID JUSTIN LYNCH&ASSOCIATES By: DAVID JUSTIN LYNCH,Esq.- Attorneys for Plaintiffs ROBERT BUCKLEY and YVETTE STONE-PATTERSON Page 5 of 5 77M.1