Loading...
HomeMy WebLinkAbout6/18/2003 - STAFF REPORTS (4) DATE: June 18, 2003 TO: City Council FROM: Director of Human Resources APPROVAL OF THE SETTLEMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND JOAYNE ANDREWS. RECOMMENDATION: Approval of Settlement Agreement by and between the City of Palm Springs and Joayne Andrews concerning a November 16, 2001 injury resulting from a city vehicle accident. The Settlement Agreement, duly executed, is on file in the office of the City Clerk. SUE MILL Director of esources APPROVED: —" City Manager Attachment: Minute Order REVIEWED BY DEPT.OF FINANCE SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement') is entered into as of the date set forth herein below by and between Joayne Andrews, herein after"Plaintiff' and the City of Palm Springs, herein after"CITY". RECITALS 1.0 Background This matter arose from an incident which occurred November 16, 2001. The case entitled Joayne Andrews v. City of Palm Springs et al., No. INC 031089 is pending in the Superior Court of the State of California for the County of Riverside, Indio wherein plaintiff alleges 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 Joayne Andrews, 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 �0 been asserted in the Pending Litigation; and (b) the commencement, prosecution, defense, and/or continuation of the Pending Litigation. 2.1 Payments Upon execution of this Agreement by Joayne Andrews and the City, and the delivery to counsel for the City of an executed dismissal of action with prejudice, the City shall pay to Joayne Andrews and Joayne Andrews shall accept, the total sum of eleven thousand dollars ($11,000) a sum inclusive of attorneys fees and costs, payable to her counsel of record. Upon receipt of said payment by Joayne Andrews and her 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 existin 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. 4.0 Dismissal Concurrently with the execution of this Agreement, plaintiffs and each of them shall cause the counsel to execute and deliver to counsel for the City a Dismissal 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 parry 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. 10.0 Liens That plaintiffs through counsel prior to execution of this agreement have represented that they are unaware of any lien from any insurer, HMO, or health care provider for any health care service delivered to Joayne Andrews allegedly required by injury sustained in the subject incident. 11.0 Severability If any provision or any part of any provision of this Agreement or for any reason held to be void, voidable, invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable. 12.0 Titles and Captions The paragraph nurnbers, 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. 13.0 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. 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 terns and intent of this Agreement, and which are not inconsistent with its tenns. 15.0 Construction of Agreement 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. 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. IN WITNESS THEREOF, the parties have executed and entered into this Agreement as of the date first written below. MAYNE ANDREWS DATED: JOAYNE ANDREWS, Plaintiff APPROVED AS TO FORM: DATED: MICHAEL H. GILBERT Attorney for JOAYNE ANDREWS DATED: GLEN E. TUCKER Attorney for CITY OF PALM SPRINGS MINUTE ORDER NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT BY AND BETWEEN JOAYNE ANDREWS AND THE CITY OF PALM SPRINGS CONCERNING A NOVEMBER 16, 2001 INJURY RESULTING FROM A CITY VEHICLE ACCIDENT. I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement by and between Joayne Andrews and the City of Palm Springs concerning a November 16, 2001 injury resulting from a city vehicle accident, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on June 18, 2003. PATRICIA A. SANDERS City Clerk a13