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HomeMy WebLinkAbout6/2/2004 - STAFF REPORTS (10) DATE: June 2, 2004 TO: City Council FROM: Director of Human Resources APPROVAL OF THE SETTLEMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND MICHAEL CALHOUN RECOMMENDATION: Approval of settlement agreement by and between the City of Palm Springs and Michael Calhoun concerning an October 5, 2001 injury to plaintiff. The settlement agreement, duly executed, is on file in the office of the City Clerk. �SUSAN E. MILLS Director of Human Resources APPROVED:-�" City Manage _-�` Attachment: Minute Order Llay-18-2004 03:40pm From-80HM FRANCIS KREL AWLERA LLP 7148846519 T-014 P•003/008 F-482 SETTLEMENT AGREEMENT AND RELEASI: OF ALL CLAIMS This Settlement Agreement. and Release of All Claims ("Agreement") is entered into by and between Michael Calhoun ("Plaintiff') and CITY OF PALM SPRINGS ("City"), and it is intended by the parties hereto to settle fully and finally all differences between them, including, but in no way limited to, those differences embodied in the action referred to hereinafter. WHEREAS, Plaintiff filed suit against the City arising out of an incident which occurred on or about October 5,2001 (Riverside Superior Court T Indio Branch Case No. INCO27880). WHEREAS, Plaintiff has alleged and there was testimony to the effect that Plaintiff suffered both physical and emotional itljuries as a result of the incident, which is the subject of the above-entitled lawsuit. WHEREAS, these parties wish to settle all differences among them, arising out of, or in any way concerning, connected with, or pertaining to the facts, circumstances, events and purported causes of action alleged as a result of the incident occurring on or about October 5, 2001 as alleged in the above-mentioned litigation. NOW, THEREI;ORE, for fell and valuable consideration and based upon the foregoing recitals and terms, conditions, covenants and agreements contained herein, the parties agree as follows: 1. Settlement Payment.The City of Palm Springs will pay Plaintiff and his attorneys,The Law Offices of Thomas T.Anderson, APC.,the total sum of one hundred twenty- five thousand dollars ($125,000), in full consideration and settlement of all claims by Plaintiff, including any claims for attorney's fees and litigation costs. Said sum constitutes a full and complete settlement and compromise of the Claims, and of all disputes arising out of or related to the Claim Payment in full will be made within 10 days of Plaintiff s counsel presenting the executed Settlement Agreement to the City's attorney,Thomas E.Francis, 2. Relea e. Plaintiff hereby releases and forever discharges the City, and each of its predecessors, successors, assigns,past or present employees (including but not limited to each of the employees identified or accused in the claim), officers, directors, agents, attorneys, insurers, subsidiaries, divisions or affiliated corporations or organizations, whether previously or hereafter affiliated in any manner, ("the Released Parties"), from any and all claims, demands, causes of CAIMUN SETTLEMENT AGURMENT 1 �� A May-I9-2004 03:40pm From-BOHM FRANCIS KEGEL AGUILERA LLP 7143846619 T-014 P.004/008 F-462 action, obligations, damages, attorneys' fees, costs and liabilities of any nature whatsoever, whether or not known, suspected or claimed, which Plaintiff ever had, now has, or may claim to have as of the date of this Agreement against the Released parties (whether directly or indirectly), or any of them, by reason of any act or omission concerning any matter, cause or thing, including, without limiting the generality of the foregoing, any claims related to or arising out of the claim, or any claims asserted of which could have been asserted in the claim. The City will assist Plaintiff in a waiver of collateral source benefits under Government Code §985. However, Plaintiff further warrants that he is responsible for any and all outstanding medical and other liens. 3. 'Discovery of Different or Additional Facts, The parties acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of this Agreement, and they expressly agree to assume the risk of the possible discovery of additional or different facts, agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 4. Release of Unknown Claims. The Agreement set forth herein is a general release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Agreement and are intended to encompass all known and unknown, foreseen and unforeseen claims which the parties may have against each other, except for any claims which may arise from the terms of this Agreement. 5. Waiver of Civil Code Section 1542,The parties expressly waive and relinquish all rights and benefits they may have under Section 1542 of the Civil Code of the State of California. Civil Code §1542. (General Release— Claims Extinguished.) provides: "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." CnLHOt1N Sp TTLF.MENTAGUrMENT A 3 May-18-2004 03:40pm From-BOHM FRANCIS KEGEL AGUILERA LLP 7143846519 T-014 P.005/008 F-462 6. Non-Admission of Liabifitv.The parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the parties have settled nor the terms of the Agreement shall be construed in any manner as an admission of any liability by the City or any of its employees, or any affiliated person or entities, all of whom consistently have taken the position that they have no liability whatsoever to Plaintiff. 7. No Assignment of Claims, Plaintiff warrants that he has made no assignment, and will make no assignment, of any claim, action, right of action, or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person, bankruptcy trustee, or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action,debts,liabilities,rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. 8, Successors and Ass("s. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. 9. knowing and Voluntary, The parties specifically represent that prior to signing this Agreement, they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The parties represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. 10. Assistance of Counsel. The parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 11. Counterparts, This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 12. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled, CALHOUN SETTLEMENT AGREEMENT May-16-2004 03:40pm From-BOHM FRANCIS KEGEL AGUILERA LLP 7143346510 T-014 P.006/006 F-462 13, Severability. Should any portion, word, clause,phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder,the validity of which shall remain unaffected. 14. Ambienity. The parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the parties, but otherwise shall be interpreted according to the application of the rule on interpretation of contracts. 15. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. 16. Governine Law. This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of said state without giving effect to conflict of law principles. 17. Tax )Ramifications. Plaintiff understands and agrees that the City is providing Plaintiff with no tax or legal advice, and makes no representations regarding tax obligations or consequences, if any, related to this agreement. Notwithstanding The foregoing, if any claim is asserted against the City by any taxing authority with respect to this payment, Plaintiff shall indemnify and hold the City harmless. 19. Entire Agreement. This Agreement constitutes the entire Agreement between the parties who have executed it and supercedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied, between the parties to this Agreement, The parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone, acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement,promise, agreement or w=anty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, CALHOIJN SEITLQv1nNT AGREeMEM' 4 � � 1;70* Nay-10-2004 03;40pm From-BOHM FRANCIS KEGEL AGUILERA LLP 7143046510 T-014 P 007/003 F-462 i modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the parties to this Agreement. The parties stipulate that the Superior Court for the County of Riverside-Indio Branch shall have jtulgdicdon to enforce the terms and conditions of this settlement pursuant to Code of Civil Procedure§664.6. IN WITNESS THER.EOF,the undersigned have executed thlg Settiment Agreement and Release of All Claims on the date set forth below. I HERRBY C$RTIFY THAT ALL OF THE TERMS OF TI41S RUZAM ,ARE FULLY UNDERSTOOD. MICHAEL CALHOU��N . DATED: B5r Michael Calhoun,Plaintiff APPROVED AS TO FORM: TtT � �,APc DATED: f By; Chap an,Esq, rupy Ibi Michael Calhoun BOHM,FXANCLS,KEGEL& AGLYILER :P DATED; `t l� By: omas 1 .Fran is,Esq, Attorney for the City of palm Springs ATTEST: CITY OF PALM SPRINGS ATEA: By; City Cleric CITY OF PALM!SPRINGS A Municipal Corporation oil )AL11oVx 59TTILEMR-TrAM ML'NT 5 MaY-19-2004 03:40pm From-BOHM FRANCIS KEGEL AGUILERA LLP 7143846519 T-014 P.008/008 F-402 APPROVED AS TO FORM: CITY OF PALM SPRINGS DATED: By: City Manager CITY OF PALM SPRINGS A Municipal Corporation CALHOUN SETTLEMENT AORLEMENT 6 MINUTE ORDER NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT BY AND BETWEEN MICHAEL CALHOUN AND THE CITY OF PALM SPRINGS CONCERNING AN OCTOBER 5, 2001 INJURY TO PLAINTIFF. HEREBY CERTIFY that this Minute Order, approving a settlement agreement by and between Michael Calhoun and the City of Palm Springs concerning an October 5, 2001 injury to plaintiff, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on June 2, 2004. PATRICIA A. SANDERS City Clerk a �