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HomeMy WebLinkAbout06063 - BUCKLEY ET AL SETTLEMENT AGR \0'" v �t�` � ��° �° � Memorandum To: James Thompson, City Clerk From: Douglas Holland, City Attorrey Date: March 1, 2011 Re: Settlement Agreement Buckley, et al. v. City of Palm Springs (Stone-Patterson) At the City Council's closed session on November 3, 2010, the City Council provided the City Attorney with authorization to settle with the two plaintiffs in their lawsuit against the City. The Council authorized the City Attorney's office to negotiate for a settlement of the lawsuit consistent with certain parameters, and authorized the City Attorney to execute settlement agreements and any related documents on behalf of the City. We have successfully negotiated a settlement with one of the plaintiffs: Yvette Stone-Patterson. I have reviewed and executed the Settlement Agreement dated January 31, 2011 that is attached to this Memorandum. This document is consistent with the direction of the City Council and the authority the City Council provided this Office. Please keep the attached copy for your records. This memorandum should also be retained with your file. If you have any questions, please do not hesitate to give me a call. GENERAL RELEASE AND SRFI-LEMENT AGREEMENT This general release and settlement agreement [hereinafter "Agreement"] is entered into between Plaintiff YVETTE STONE-PATTERSON and her agents, attorneys, servants, employees, representatives, and successors in interest [hereinafter "PLANNTFF1-"], on the one hand, and on the other hand, the Ct fY 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 hereirutfter collectively referred to as the "Parties," with respect to the litigation and claims described below. The Plaintiff'Represents as Follows: A. That she 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. 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 Fifty Thousand Dollars and zero cents ($50,000,00) ("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 her attorneys, and that PLAINTIFF expressly directs that payment of the settlement proceeds be made payable per the Addendum attached to this agreement and incorporated herein. 3. PLA114 uir f'S RELEASE A. in consideration of the payment the Settlment Amount referred to herein, PLA%MFF hereby fully and forever completely releases, acquits and discharges DEFENDANTS, including, but not limited to, CITY OF PALM SPRINGS and DEFENDANT POLICE OFFICER CARY CARILLO, from any and all claims, costs, demands, damages, Page 1 of 5 74M7.1 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 her 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 fro a INCI .NT this settlement,or Settlement Amount. By laintiff ' h �� YVE-ITE X STO By: � DAVID JUS i W LYNCH,Esq. Attorney for Plaintiff C. PLAINTIFF and her 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, her agents, family members, attorneys, servants, employees, representatives, and successors in interest against DEFENDANTS which may have arisen or ay arise from CIDE ,thettlement,or Settlement Amount. By: i� vc.. .C�G�7 laintiff YVE 1 rE STONE-PAYFERSON By: ✓ DAV JUS"rIN LYNCH,Esq. Attorney for Plaintiff 4. DISNIISSAL PLAINTIFF shall cause her attorney to execute a Request for Dismissal, with prejudice, dismissing her 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 SEC rION 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 749547 1 time this Agreement is signed. There is a risk that the damage of which PLAINTIFF and her attorneys presently are aware may become more serious or otherwise increase in magnitude (qualitatively and/or q>>antitatively). 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 she has full and complete authority to release all such claims on behalf of herself, her heirs, assigns,and successors in interest. 6. A$SUMPTION 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 she 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 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. Page 3 of 5 749547 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 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. G. Paragrpph Headings: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. H. No Inducp=pt: PLAINTFF 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 she 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. I. Attorney Fees and Costs in this Action: PLAINTIFF will bear her 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 J. 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. 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:V) 3 Byn� laintiff YVE"rm STONE-PAI-rERSON Dated: CITY OF PALM SPRINGS DAVIU H.READY,Esq, pL F APPROVED AS TO FORM AND CONTENT: Dated: WOODRUFF S LIN& SMART,APC By: STEV L.RADER,Esq.. Attorneys for Defendants CITY OF PALM SPRINGS and CARY CARILLO,Police Officer, CITY OF PALM SPRINGS POLICE DEPARTMENT Dated: 13 J J DAVID JUS f IN LYNCH&ASSOCIA f ES ( 4 - By: '�' J s.� ' DAVID JU TIN LYNCH,Esq.. Attorneys for Plaintiffs ROBERT BUCKLEY and YVE'1-1"E STONE-PA XI ERSON Page 5 of 5 7493471 I a SCANNED jilt) 2 ADDENDUM TO GENgRAL RELEASE AND SE'1-1-LEMENT AGREEMENT Plaintiff, YV$1TE STONE PATf1;RSON,and her attorney,authorize and request that the $50,000 settlement proceeds be issued as follows in two checks: $30,500 payable to"Yvette Stone-Patterson"and mailed to her at 2036 N. Mira Vista, Palm Springs,CA 92262. $19,500 payable to"David Justin Lynch&Associates,APLC"and mailed to the law firm at I I I I Fact Tahquitz Canyon Way, Suite 115,Palm Springs, CA 92262. David Justin Lynch& Associates,APLC,will pay directly any and all contract>>al liens of record. The Tax Identification Number for David Justin Lynch&Associates,APLC is 33-0966521. Dated: January 31,2011 XrE STONE-PA"rrERSON DAVID JUSTIN LYNCH & ASSOCIATES,APLC By. V ) 4 1 V V DAVID JUSTIN LYNCH,President ADDENDUM TO GENERAL RELEASE AND SE-rfLEMENT AGREEMENT Plaintiff,YVE7 TE STONE PA'rl ERSON,and her attorney,authorize and request that the $50,000 settlement proceeds be issued as follows in two checks: $30,500 payable to"Yvette Stone-Patterson"and mailed to her at 2036 N. Mira Vista, Palm Springs,CA 92262. $19,500 payable to"David Justin Lynch&Associates,APLC"and mailed to the law firm at 1 111 East Tahquitz Canyon Way,Suite 115,Palm Springs,CA 92262. David Justin Lynch& Associates,APLC, will pay directly any and all contractual liens of record. The Tax Identification Number for David Justin Lynch&Associates,APLC is 33-0966521. Dated: January 31,2011 I-i`E STONE-PATTERSON DAV1U JUSTIN LYNCH&ASSOCIATES,APLC By:S�) V J DAVID JUSTIN LYNCH,President