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HomeMy WebLinkAbout04794 - CAROL SUE SAMIR TAIAN SETTLEMENT Carol Sue & Samir Taian Settlement Agreement AGREEMENT #4794 MO7392, 11-5-03 SETTLEMENT AND RELEASE AGREEMENT -— - - - - -This Settlement and Release Agreement ("Agreement") is entered into as of the date set forth herein below by and between Carol Sue Taian and Samir Taian, and the City of Palm Springs ("City"), Chief Charles Lee Weigel, Brian Anderson, Vic Vickers, and Steven Woodward. RECITALS 1.0 Background This matter arose from Palm Springs Police Department contact with Carol Sue Taian and Samir Taian on April 1, 2000. The case entitled Carol Sue Taian and Samir Taian et al r. 001 of Palm Springs et al. No EDCV 01-0201RT(SGLx) is pending in the United States District Court for the Central District of California-Eastern Division, wherein Carol Sue Taian and Samir Taian allege physical and emotional injuries. 1.1 Purpose of Agreement The parties hereto desire and intend to settle all claims and disputes arising out of or relating to the Pending Litigation, and fully release and discharge each party to this Agreement with respect to the Pending Litigation. NOW, THEREFORE, in accordance with the preceding recitals, which are hereby incorporated into the Agreement, and in consideration of the covenants, agreements, and representations set forth hereinbelow, the parties hereto agree as follows. AGREEMENT 2.0 Mutual Settlement Except for the obligations created by or arising out of this Agreement (including, without limitation, the payment to Carol Sue Taian and Samir Taian, for and inconsideration of the sums specified in paragraph 2.1, and performance of all other terms of this Agreement, the parties for themselves, and for each and all of their predecessors, successors, heirs, affiliated corporations, parent corporations, divisions, subsidiaries,joint ventures, officers, directors, shareholders, employees, assigns, partners, agents, attorneys and representatives, and each of them, do hereby mutually release, waive, and discharge each other party and their predecessors, successors, heirs, affiliated corporations, parent corporations, divisions, subsidiaries,joint ventures, officers, directors, shareholders, employees, assigns, partners, agents, attorneys and representatives, and each of them, from any and all rights, claims, causes of action, demands, damages, debts, liabilities, reckonings, obligations, costs, expenses, liens, actions, losses and/or injuries to the parties, persons and property of every kind and nature whatsoever, whether known, unknown, suspected, unsuspected, foreseeable, unforeseeable, potential, not existing or arising hereafter, which they now have, own or hold, or at any time heretofore had, owned or held, or shall or may hereafter have, own, or hold, arise out of or pertaining to any claims, actions, causes of action, or matters which: (a)were alleged or could have been asserted in the Pending Litigation; and (b) the commencement, prosecution, defense, and/or continuation of the Pending Litigation. This release is not applicable, by way of example and mot of limitation, to any breach of this Agreement. 2.1 Payments Upon execution of this Agreement by Carol Sue Taian and Samir Taian, and the delivery to counsel for the City of an executed stipulation re dismissal of action pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, with prejudice, the City shall pay to Carol Sue Taian and Samir Taian and Carol Sue Taian and Samir Taian shall accept, the total sum of one hundred eighty thousand dollars ($180,000) a sum inclusive of attorneys fees and costs, payable to their counsel of record. Upon receipt of said payment: by Carol Sue Taian and Samir Taian and their counsel of record, counsel for the City shall file the executed dismissal referenced herein with the court where this action is pending. 2.2 Scope of Release Each party has read and understood, and has been informed by their respective undersigned counsel, of the content and meaning of and expressly waives the provisions of Civil Code Section 1542, which 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. The parties hereby understand and acknowledge the significance or consequence of such specific waiver of Section 1542, and hereby expressly agree that this Agreement shall apply to all unknown, unforeseen, unanticipated and latent damages, as well as to those which are known, foreseen, anticipated, patent, or now existing which arise out of the Pending Litigation. 3.0 Warranty of Non-Transfer The parties hereto each represent and warrant that they have not heretofore assigned, transferred, sold, conveyed, hypothecated, encumbered or otherwise disposed of any action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, notes, promises, liabilities, rights, claims, demands, costs, expenses, damages or losses hereinabove released Each of the parties hereby warrant and represent that they shall indemnify and hold harmless the other party from and against all claims, debts, liabilities, accounts, reckonings, costs, expenses, liens, actions or causes of action, based on, in connection with, or arising out of, such assignment or transfer or purported or claimed assignment or transfer. �d3 4.0 Dismissal Concurrently with the execution of this Agreement, Muench shall cause his counsel to execute and deliver to counsel for the City a Stipulation Re Dismissal Pursuant to Rule 41(a) (with prejudice) of the Pending Litigation. Counsel for the City shall hold such stipulation in trust, and may file the same at any time following issuance of the settlement draft as set forth herein. The parties hereto agree to refrain from commencing, continuing or participating in any lawsuit or other proceeding against any other party hereto including, without limitation, each party's agents, employees, officers, directors, successors and assigns, based upon the matters described in this Agreement. 5.0 Attorney's Fees If any party hereto brings an action against the other by reason of any breach of any of the provisions of this Agreement or a default under this Agreement, the party in whose favor a final judgment is rendered shall be entitled to recover from the other party all costs and expenses of litigation, including reasonable attorneys' fees (whether incurred before or after the entry of judgment.) 6.0 Counterparts This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all the signatures are on the same instrument. 7.0 Binding Effect This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective partners, agents, employees, directors, officers, attorneys, representatives, principals, trustees, parents, subsidiaries, affiliates, successors, predecessors, assigns, heirs and investors. 8.0 Governing Law It is acknowledged that this Agreement shall be interpreted in accordance with and governed in all respects by the laws of the State of California. 9.0 Entire Agreement This Agreement constitutes the entire agreement between and among the parties hereto with respect to the settlement of the matters set forth herein. There are no representations, warranties, agreements, arrangements or undertakings, written or oral, between or among the parties hereto, relating to the subject matter of this Agreement which are not fully expressed herein. 09/19/2003 10:50 FAX 17604166638 GRAHAM 10003 9?/18/2003 13:21 3238287 CITV OF PALM SPRINGS PAGE 05/07 10.0 Severability If any provision or any part of any provision of this Agreement or for any reasons held to be void, voidable, invalid, unenforceabtc or contrary to any public polioy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable. 11.0 Titles and Captions The paragraph numbers, titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision herein. 12.0 -Warranty of Authority and Competency Each of the parties hereto warrants and represents that they are competent and fully authorized to enter into this Agreement and receive the consideration therefor. 13.0 1� 14.0 Cooperation Clause The parties)hereto agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions 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. 15.0 Construction of Agreelment -- - - This Agreement is the product of negotiation and preparation by and among the parties hereto and their respective counsel. The parties hereto, therefore, expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another, or their counsel, and will be construed as a whole according to its fair meaning and not strictly for or against any party. t H v✓ 013 SEP 29 PN 3: 10 fIUf1/�I'� 16- SOURCES CITY Oar PALM SPRINGS 16.0 Reliance Upon Own Judgment In entering into this Agreement, each party has relied upon the advise of the party's own counsel of choice, and has not relied upon any representation of law by any other party hereto. It is further acknowledged that the terms of this Agreement are contractual and not a mere recital, have been completely read and understood and voluntarily accepted. 17.0 No Admission of Liability This Agreement is a result of the compromise of disputed issues of fact and law among the parties hereto and shall not, at any time, nor for any purpose, be construed as an admission of liability or nonliability as the case may be, and this release may not be introduced into evidence in any court of law or administrative tribunal for the purpose of proving liability or nonliability of the claims hereby released. 18.0 Costs The parties hereto shall each bear their own costs, attorneys' fees and other fees incurred in connection with the Pending Litigation, this Agreement, and the matters referred to herein 19.0 Use of Terms As used in this Agreement, "persons" includes natural persons, corporations, partnerships,joint ventures, and any other entity. Whenever in this Agreement the context so requires, the masculine gender will be deemed to refer to and include the feminine and the neuter, and the singular to refer to and include the plural. 20.0 Amendment of Agreement This Agreement may not be amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by the parties or their authorized representatives. - 21.0 This Agreement may be Executed by the Parties and their Attorney of Record in Counter Parts IN WITNESS THEREOF, the parties have executed and entered into this Agreement as of the date first written below. DATED: CAROL SUE TATAN DATED: SAMIR TAIAN APPROVED AS TO FORM: DATED: STEP N LER Attorney f CAROL SUE THAN and S AIAN DATED: GI - E. TUCKE At orney for CITY OF PALM SPRINGS, CHARLES LEE WEIGEL, BRYAN ANDERSON, VIC VICKERS, and STEVEN WOODWARD TEST: CITY 4LERK CITY OF PALM SPRINGS A municipal corporation APPROVED AS TO FORM: City A r iey City Manager ✓ 0 ,A +71q