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HomeMy WebLinkAbout04711 - FRITZ BEYER SETTLEMENT AGREEMENT 61/30/2602 11:33 62b5b429/1 GLL., L. ILA, t­ ..i Fritz G. Beyer • i Settlement Agreement AGREEMENT #4711 M07314, 6-4-03 SETTLEMENT AGREEMENT AND RELEAb This Settlement Agreement and Release ("Agrecment") is made and entered into by and between FRITZ G. BEYER ("plaintiff') and CITY OF PALM SPRINGS, PAUL ABSHIRE, TIMOTHY THOMAS, MIC AEL HALL, MERRIT CHASSIS, and ANTHONY BAKER ("defendants"). WHEREAS, plaintiff has set forth a claim for damages arising out of an incident which occurred on or about September 3, 1999; and WHEREAS, these parties are parties to litigation filed in Central District of California of the United States District Court, entitled Fritz G. Beyer vs. City of Palm Springs, et al., Case No. EDCV00-00952VAP (SGLx). WHEREAS, plaintiff alleges that he suffered both physical and emotional injuries as a result of the incident, which is the subject of this litigation; 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 September 3, 1999, as alleged in the above-mentioned litigation. NOW THEREFORE, for full and valuable consideration and based upon the foregoing recitals and terms, conditions, covenants and agreements contained herein, the parties agree as follows: 1. PaMeP1 The City of Palm Springs will pay plaintiff and his attorney of record, Lawrence R. Bynum, the stun of $120,000,00. This payment is in full consideration and settlement of all claims by plaintiff, L /1 01/30/20B2 11:33 6265642971 GLEN E. TUCKE,f AIIY PAut 03 • Settlement Agreement and Release Page 2 including any claims for attorney's fees and 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 fifteen (15) days of plaintiff's counsel presenting the fully executed Settlement Agreement to the City's attorney, Glen E. Tucker. 2, Bolttase Plaintiff hereby releases and forever discharges the defendants, and each of their predecessors, successors, assigns, past or present employees (including, but not limited to each of the employees identified or accused in the lawsuit), officers, directors, agents, attorneys, insurers,subsidiaries, divisions or affiliated corporations or organizations,whether the foregoing, any claims related to or arising out of the claim, or any claims asserted of which could have been asserted in the lawsuit, Defendants hereby release and forever discharge the plaintiff, his attorneys, and any persons by them employed, from any and all claims, demands, causes of action, obligations, damages, attorney's fees, costs, and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, which defendants, or their agents ever had, now have, or may claim to have, as of the date of this Agreement, against plaintiff, and/or plaintiffs attorneys, or any of them, by reasons of any act or omission concerning any matter, cause or thing, including without limiting the generality of the foregoing, any claims relating to or arising out of the claim, any claims asserted or which could have been asserted in the claim, or any litigation arising out of such claim or claims. 01/30/2002 11:33 6265642971 GLEN E. TUCKER ATTY PAGE 04 Settlement Agreement and Release Page 3 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. Ttelease 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. The statute reads as follows: "1542. 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." 6. Non-Admission of Liability tlll_ _l1 -� 11.dd 6�6564�911 aL6N E. IUUKL,, A I I Y PA(�t 05 Settlement Agreement and Release Page 4 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 this Agreement shall be construed in any manner as an admission of any liability by defendants or any of their employees, or any affiliated person or entities, all of which consistently have taken the position that they have no liability whatsoever to plaintiff. 7. NQ 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 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 Assigns 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 assigrts. g. Knowing and Voluntary The patties 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 q �—/ tl1, 36, tlj on 11.33 GLEN E. INCKER ATTV PAGE 06 Settlement Agreement and Release Page S coercion entering into this Agreement based upon their own judgment. 10. Assistance gi 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. Countely 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. Enforc Lmont Costs Should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs in addition to any other relief to which that party may be entitled. 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, Ambif ullX 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 skull not be interpreted against any of the parties, but otherwise shall be interpreted according to the application of the rule on interpretation of contracts. ULLN E. IUGKE.: Ai / PAGE 07 Settlement Agreement and Release Page 6 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. Governing 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 defendants are providing no tax or legal advice, and makes no representations regarding tax obligations or consequences, if any, related to this Agreement. Further,the parties have endeavored in good faith to allocate appropriately the payment set forth above. 18. Entire Agreement This Agreement constitutes the entire agreement between the parties who have executed it and supersedes 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 q�-I� ULEN E. IUUKL., AIIY PAGE CB Settlement Agreement and Release Page 7 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 warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the parties to this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release on the dates set forth below. DATED: nm, 30 26902 FRITZ BE R Approved as to form and content: WRENCE R. BYNUM DATED: CITY OF M SPRINGS BY.,