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HomeMy WebLinkAbout05116 - SANDY BASSLER SETTLEMENT AGREEMENT MESQUITE COUNTRY CLUB INC022201 X � s--ri'q.,iir�-nvev f u - — +A kWa l l i t 4 i ' Ul I ri! x ,ElT 1 6 �l q ¢ gA o' i ' U'r ii :. 5 i+.muf,u�11tn J"I " , 1 714�' i� e 11kt1 N 4�"ir P id ,N4N hy� ¢i + s q!U i ryryni " P+r£N r d i, itrz f �I if4I w a d��*I id do dyy bil R l l,f i �!i �I'vlr !Jl , 14a§I f��yd�x� �� ��@ �r u¢¢µitl 1 I,MYaXM.MM'n14N�Nry1� i M 9j'i i.h'�x4 4 t i I lit �4n 7t iai Y dig�+l I k�+H11 W �H � la .✓ en>. � . f "'G t,,,�� t 4 fi•YEI ip(' j + 1 }kY�l "7I' nit �" '�;o C"+E�iy� rli`� l�`T ��! � � I Ir, •r Po, r1 b�:, reta >aw��Nt` a j� I'".h, -7c� ft"f �.0 a I(�n�ki1xl� 41 yy[ N1� E 1J _ r:x C I aM whu' r a»+ bi w'". . .. V ., O J. :r .gvui k e..., C�. ,' 'D C -�I .�_,_ 4 >•� '.y�i w i ,,5m(d1u 4hll� s CWW� 10 j-� IS ., aal +� o 'kh k k t — k1�u!u�w ia.a,s w.icy V� .Iuvnisd'U ,dMi+�t„ax . a�j ', svi N4 w9,i�Vna�,+ii �k �: G I i* i�i w i � i i O .1= �kPWr,isku!W4iuia d Mki+`tiI k„ 64 ,I1�u 1 . Q, i ! 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JUY� �'`��,;`� WIW�oduli 'du! � ��5 dNhNkw i, i.bNMMyratlhw«re�W,laat�I�nwu qt,wsprdkYt3Nt�la,nwe'wtU+�iy;l.ku �C.i biuw x N+��µer!u4!".+Y �kt6uW1',UiBdw.'r1T, $ tWwrnb( ilt��a w�u R sFdNp�� u,»4iWkkiMu9tl�pC a ix M pa l "xMG�t#IC�N4� {.1 .; W r� dw�tl ��� hNkM�ut�nai • '�uiiN�kNkkW +G I,-NiiU , -- � �uNlxi�dtENi r � u Fiw iGY wsN taw au d , u * = dafa�iwlrius�.wtGawu�d tlu r------n d VALM S ti 2 U w M E M O R A N D U M .M �aaaxsAp ' C',ft f1pV� \4 TO: Mari Lynn Boswell Procurement Office FROM: Kathie Hart, CMC Chief Deputy City Clerk DATE: August 26, 2005 SUBJECT: Closed Agreements cc: File Per instructions from Troy's Office, the following agreements have been closed: Greines, Martin, Stein & Richard A4791 Sandy Bassler A5116 Please feel free to contact me if there are any questions, ext. 8206. Jkdh attach. Sandy Ressler Settlement Agreement AGREEMENT #5116 MUTUAL RELEASE AND SETTLEMENT AGREEN CM signed, 4-6-05 1. On April 9, 2001, plaintiff SANDY BASSLER hereinafter referred to as "Plaintiff'), filed a complaint in the California Superior Court for the County of Riverside, bearing Case No. INCO22201. The complaint names defendants MESQUITE COUNTRY CLUB and CITY OF PALM SPRINGS (hereinafter collectively"Defendants") who are the defendant parties to this Mutual Release and Settlement Agreement. 2. Defendants filed answers to the complaint individually, denying all material allegations and raising certain affirmative defenses. The Defendants also filed cross-complaints as against each other. 3. While this Agreement resolves all issues between Defendants and Plaintiff, as well as any future effects of any acts or omissions, it does not constitute an admission by Defendants of any of the matters alleged in the complaint in Case No. INCO22201, and/or any violation of Federal, State or local law, ordinance or regulation, or any violation by Defendants of policies or procedures or any liability or wrongdoing whatsoever. Neither this Agreement nor anything in this Agreement shall be construed or shall be admissible in anyprocceding as evidence of liability or wrongdoing by Defendants. This Agreement maybe introduced, however, in any proceeding to en`iorce the Agreement or any portion herein. Such introduction shall be pursuant to an order protecting its confidentiality. 4. In consideration of the covenants undertaken and releases given herein by Plaintiff, through her attorney of record, Samuel Trussell, has reached a settlement in this action for the global amount of One Hundred Twenty Thousand Dollars ($120,000.00) of which American Golf Corporation dba Mesquite Golf&County Club is paying Twenty-Seven Thousand Five Hundred Dollars ($27,500.00) and City of Palm Springs is paying Ninety-Two Bassler vs. Mesquite Country Club, et al, Mutual Release and Settlement Agreement Page 2 Thousand Five Hundred Dollars ($92,500.00). In exchange for the execution of the Mutual Release and Settlement Agreement by all parties herein and their respective attorneys of record, Plaintiff will file a dismissal of her complaint terminating this matter in its entirety, with prejudice. In addition, each Defendant will dismiss, with prejudice, its cross-complaint for mutual waiver of costs. The settlement will as such, be on a global basis. 5. In consideration of the covenants undertaken herein by Defendants, and except for those obligations created by or arising out of this Agreement, Plaintiff, on her own behalf and on behalf of her dependents, heirs, executors, administrators, assigns and successors, does hereby covenant not to sue and acknowledges satisfaction of and hereby releases, absolves and discharges Defendants and their dependents, heirs, executors, successors, assigns, subsidiaries, divisions and affiliated corporations, past and present, their trustees, directors, officers, shareholders, agents, attorneys, insureds and employees, past and present, and each of them, (hereinafter collectively referred to as "Releasee") with respect to and from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, wages, obligations, debts, expenses, attorneys' fees, damages,judgments, orders and liability of whatever kind or nature in law, equity or otherwise, whether known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which Plaintiff now owns or holds or has at any time heretofore owned or held as against said Releasee, including specifically, but not exclusively, and without limiting the generality of the foregoing, any and all claims, demands, agreements, obligations and causes of action, known and unknown, suspect or unsuspected by Bassler vs. Mesquite Country Club, et aG Mutual Release and Settlement Agreement Page 3 Plaintiff: (1) alleged or set forth in the complaint referred to herein and on file with the Superior Court of the State of California, County of Riverside; (2) arising out of or in any way connected with any transactions, occurrences, acts or omissions set forth or facts alleged in pleadings on file in this case; (3) arising out of or in any way connected with any transactions, occurrences, acts or omissions set forth or facts alleged, in any and all charges, complaints, claims or pleadings filed by Plaintiff against Releasee prior to the date hereof with any City, County, State or Federal agency, commission, office or tribunal, whether national or international, whatsoever; or (4) arising out of or in any way connected with any transactions, occurrences, acts or omissions occurring prior to the date hereof, including specifically, without limiting the generality of the foregoing, any claim under any statute, ordinance, regulation or code regarding operation of Defendants' premise or any portion thereof. 6. It is a further condition of the consideration hereof and is the intent of Plaintiff in executing this instrument, that same shall be effective as a bar as to each and every claim, demand, and cause of action hereinabove specific and, in furtherance of this intention, Plaintiff hereby expressly waives any and all rights and benefits conferred by the provisions of§ 1542 of the California Civil Code and expressly consents that this Agreement shall be given full force and effect according to each and all of its expressed terms and conditions, including those relating to unknown and unspecified claims, demands, and causes of action, if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. 1t is Bassler vs. Mesquite Country Club, et at Mutual Release and Settlement Agreement Page 4 requested that all signatories to this Agreement, by signing this document, herein expressly acknowledge their understanding of§ 1542 of the Civil Code which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH, IF KNOWN BY HIM,MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 7. Plaintiff acknowledges that she may hereinafter discover claims or facts in addition to or different from those which Plaintiff now knows or believes to exist with respect to the subject matter of this Agreement and which, if known or suspected at the time of executing this Agreement, may have materially affected this settlement. Nevertheless; Plaintiff has hereby waived any right, claim or causes of action which might arise as a result of such different or additional claims or facts. Plaintiff acknowledges that she understands the significance and consequence of such release as such waiver of§ 1542. Furthermore, by executing this document, Plaintiffs counsel confirms that he has acknowledged Plaintiff's understanding and agreement to this waiver. 8. Plaintiff and Defendants agree that each party will bear its own costs and attorneys fees associated with the prosecution or defense of this case that specifically waive payment of any sanctions or any other cost awarded by the court herein, or otherwise due and owing. H Bassler vs. Mesquite Country Club, et al. Mutual Release and Settlement Agreement Page 5 9. Plaintiff warrants and represents that she has not heretofore assigned or transferred to anyperson not a party to this Agreement any released matter or anypart or portion thereof and Plaintiff shall defend, indemnify and hold harmless Defendants from and against any claim (including the payment of attorneys fees and costs actually incurred whether or not litigation is commenced) based on or in connection with or arising out of any such assignment or transfer made, purported or claimed. Plaintiff agrees that she shall be exclusively liable for the payment of all Federal and State taxes which maybe due as a result of the consideration received from the settlement of disputed claims as set forth hereinabove and Plaintiff herebyrepresents that she shall make payments on such taxes at the time and in the amount required by Plaintiff. Furthermore Plaintiff agrees she has or will fully satisfy all liens now due or which may be due and that defendants shall not be responsible for any such lien. In addition, Plaintiff hereby agrees fully to defend, indemnify and hold harmless Releasee from payment of taxes, liens or penalties that are required of her by any government agency or medial provider at anytime as the result of payment of the consideration set forth above. 10. This Agreement constitutes and contains the entire agreement and understanding concerning Plaintiff's filing of her complaint in Case No. INCO22201, the prosecution of this action and the other subject matter addressed hereinabove between the parties to this Agreement, and supersedes and replaces all prior negotiations and all agreements proposed or authorized, whether written or oral, concerning the subject matter thereof. This is an integrated document. Bassler vs. Mesquite Country Club, et aG Mutual Release and Settlement Agreement Page 6 11. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provision or application, and to this end, the provisions of the Agreement are declared to be severable. 12. This Agreement shall be deemed to have been executed and delivered within the State of California and the rights and obligations of the parties hereinunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California without regard to principles of conflict of laws. 13. Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against any party on the basis that the party was the drafter. 14. This Agreement maybe executed in counterparts, and each counterpart, when executed, shall have the capacity of a signed original. 15. Copies of such signed counterpart maybe used in lieu of the original for any purpose. 16. In the event of litigation in connection with or concerning the subject matter of this Agreement, the prevailing parties shall be entitled to the recovery of all reasonable costs and expenses incurred by such party in connection herewith, including reasonable attorneys fees. Bossier vs. Mesquite Country Club, et al. Mutual Release and Settlement Agreement Page 7 17. No waiver of any breach of any term or provision of this Agreement shall be construed to be, or shall be, a waiver of anyother breach of this Agreement. No waiver shall be binding unless in writing and signed by the parties waiving the breach. 18. In entering into this Agreement, Plaintiff represents she has relied upon the advice of her attorney, who is her attorney of choice, and that the terms of this Agreement have been completely read and explained to her by her attorney and that those terms are fully understood and voluntarily accepted by Plaintiff. 19. All parties agree to cooperate fully and to execute any and all supplementary documents and to take all actions additionally mandated that may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement and which are not inconsistent with its terms. 18. I have read the foregoing agreement and I accept and agree to the provisions it contains and hereby execute it voluntarily with full understanding of its consequences. // // // // 05/09/2005 15:11 7605GBO HHSR PAGE 03/05 Bassler vs. Mesquite Country Club, et al Mutual Release and Settlement Agreement Page 8 I declare under penalty of perjury and the laws of the State of California that the foregoing is true and correct. Date 1/'-/S SANDY BA LER Date: AMERICAN GOLF CORPORATION dba MESQUITE GOLF & COUNTRY CLUB By.- Its: Date: CITY OF PALM SPRINGS By: Its: 1/ // // /I 05/09/2005 15:11 7605684 HHSR PAGE 04105 Country Club, et aL «ase and Settlement Agreentent „ga 8 I declare under penalty ofperjUry and the laws of the State of California that the foregoing is true and correct. Date: SANDY BASSLER Date: /t� AMERICAN GOLF CORPORATION dba MESQUITE GOLF & COUNTRY CLUB By: Its: _ {�►�[ Date: �(� r 11�,I zc)0� CI1Y OFC PALM SPRINGS Its: City Manager ' ATTEST: �Cknrte Clerk . - APPROVED BY CITY COUNCIL H 05/09/2005 15:11 79056850 HH5R PAGE 05/05 Basler vs. Mesquite Country Club, et aL Murual.Release and Settlement Agreement Page 9 APPROVED AS TO FORM AND CONTENT: Date: �r ? D LAW OFFICES OF THOMAS T. ANDERSON By: �Sam�sse ) Attorneys for Plaintiff SANDY BASSLER Date: Aefen SHE N &ROHR By: t ORP TION dba &CO Y CLUB Date: 5t0 (U� BOHM,FRANCIS, KEGEL&AGUILERA /�5K By: Thomas E. Francis _ Attorney for Defendant CITY OF PALM SPRINGS Memorandum T To: James Thompson, City Clerk From: Douglas Holland, CityAttor' ney1� Date: June 9, 2005 Re: Settlement Agreement with Sandy Bassler At the City Council's closed session on April 6, 2005, the City Council authorized the City Attorney's Office to settle Ms. Bassler's lawsuit against the City and authorized the City Attorney's office to negotiate for a settlement of the lawsuit consistent with certain parameters. I have reviewed the attached Mutual Release and Settlement Agreement, executed by Thomas Francis on May 10, 2005 on behalf of the City, and find that this document is consistent with the direction of the City Council and the authority the City Council provided this Office. Specifically, the amount of$92,500 is at or below the amount authorized by the City Council. This document should be filed with your office. If you have any questions, please do not hesitate to give me a call.