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HomeMy WebLinkAbout6/4/2003 - STAFF REPORTS (6) DATE: June 4, 2003 TO: City Council FROM: Director of Human Resources APPROVAL OF TWO (2) SETTLEMENT AGREEMENTS: BY AND BETWEEN THE CITY OF PALM SPRINGS AND ASHLEA PAQUETTE AND FRITZ G. BEYER. RECOMMENDATION: Approval of Settlement Agreements by and between the City of Palm Springs and the following plaintiffs related to their claims- 1. Ashlea Paquette concerning a September 4, 2001 injury resulting from a city vehicle accident. 2. Fritz G. Beyer concerning a September 3, 1999 arrest of plaintiff. The Settlement Agreements, duly executed, are on file in the office of the City Clerk. SUE MILL Director of Human Resources _APPROV �� City Manager Attachments: (2) Minute Orders REVIEWED BY DEP7 OF FINANCE 4 4 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is made and entered into by and between ASHLEA PAQUETTE ("plaintiff') and CITY OF PALM SPRINGS and ALPHONZO PRANCISCO SANDOVAL ("defendants"). WHEREAS, plaintiff has set forth a claim for damages arising out of an incident which occurred on or about September 4, 2001; and WHEREAS, these parties are parties to litigation filed in the Riverside Superior Court, Indio Branch, entitled Ashlea Paquette vs- Alphonzo Francisco Sandoval, er al., Case No. INC 02903T WHEREAS, plaintiff alleges that she 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 4, 2001, 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: I. Payment The City of Palm Springs will pay plaintiff and her attorneys of record, Caronna & Johnson LLP, the sum of $15,500.00. This payment is in full consideration and settlement of all claims by plaintiff, including any claims for attorney's fees and costs. Said sum constitutes a full and complete gfiZ Settlement Agreement and Release Page 2 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 plaintiffs counsel presenting the fully executed Settlement Agreement to the City's attorney, Glen B. Tucker. All settlement funds constitute payment for alleged damages on account of personal physical injuries within the meaning of Section 104(a)(2) of the Internal Revenue Code. 2. Release 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 have been asserted in the lawsuit. Defendants hereby release and forever discharge the plaintiff, her 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. 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. 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. The statute reads as follows: "1542. A General Rclease 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." C� Settlement Agreement and Release Page 4 6. Non-Admission of Liability 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. No Assignment of Claims Plaintiff warrants that she 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, attorney's fees, costs, expenses, losses or claims referred to herein. S. 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 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 q4G Settlement Agreement and Release Page 5 all of the provisions of this Agreement, and that they arc 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 attorney's fees and costs in addition to any other relief to which that party may be entitled. 11 Scverability 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. Ambiguity 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 Q4 Settlement Agreement and Release Page 6 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. 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. Notwithstanding the foregoing, if any claim is arrested against defendants by any taxing authority with respect to this payment, plaintiff shall indemnify and hold defendants harmless. 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 Q /�� Settlement Agreement and Release Page 7 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 Agrccment 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: O- G-6Z. ASHLER A ETTE Approved as to form and content: CARONNAq& JOHNSON, LLP BY GC,4 14tN�- Antho y C. Caronna DATED: 8 ZJ CITY OF PALM SPRINGS BY �' DATED: S �" ALPH NZO V ANDOVAL 01/30/2082 11:33 6265642971 GLEN E. TUCKER ATTY PAGE a2 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is made and entered into by and between FRI= G. BEYER ("plaintiff) and CITY OF PALM SPRINGS, PAUL ABSHIRB, TIMOTHY THOMAS, MICHAEL BALL, MERRIT CHASSIS, and ANTHONY BAILER ("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. Famn The City of Palm Springs will pay plaintiff and his attorney of record, Lawrence R. Bynum, the sum of S120,000.00_ This payment is in full consideration and settlement of all claims by plaintiff, ql1 01/30/2002 71:33 6265642971 GLEN E. TUCKER ATTV PAGE 03 Settlement Agreement and Release Page 2 including any claims for attorneys 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 plaintiffs counsel presenting the fully executed Settlement Agreement to the City's attorney, Glen E Tucker. 2. Release 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, attorneys fees, casts, 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_ /// el/30/2002 11:33 6265642971 GLEN E. TUCKER ATTY PAGE 04 Settlement Agreement and Release Page 3 3. DiScOverY Qf Me= Qr 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. Releaw. 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 miscion of I,' til; 01/30/2002 11:33 6265642971 GLEN E. TUCKER ATTY PAGE 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. No Antigment 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,attorney's fees,costs, expenses,losses or claims referred to herein. 8. Sumessnrs aaad A_csi¢ns 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. Knamjpg 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 q �-12— 01/30/20D2 11:33 62656a2971 GLEN E. TUCKER ATTV PAGE 06 Settlement Agreement and Release Page 5 coercion entering into this Agreement based upon their own judgment. 10. Assiatall& of GDunse] 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. Counteruarts 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 attorney's fees and costs in addition to any other relief to which that party may be entitled. 13. rability 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. AMbini 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. 01/30/2002 11:33 6265642971 GLEN E. TUCKER ATTV 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 Mimes be deemed a waiver or relinquishment of any right or power at any other time or times. 16. 2ove inc Lw 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. Enure A cement 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 orherwise, have been made by q�--/ � 01/30/2002 11:33 6265642971 GLEN E. TUCKER ATTY PAGE 00 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: fah 3d,2002 I { FRITZ BE R Apppro l/_ved as to form and content: ' --� W1�ENCE R. BYNIlM DATED: 4J CITY OF M SPRINGS BY MINUTE ORDER NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT BY AND BETWEEN FRITZ G. BEYER AND THE CITY OF PALM SPRINGS RELATED TO A SEPTEMBER 3, 1999 ARREST OF PLAINTIFF. I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement by and between Fritz G. Beyer and the City of Palm Springs related to a claim arising out of a September 3, 1999 arrest of plaintiff, was adapted by the City Council of the City of Palm Springs, California, in a meeting thereof held on June 4, 2003. PATRICIA A. SANDERS City Clerk MINUTE ORDER NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT BY AND BETWEEN ASHLEA PAQUETTE AND THE CITY OF PALM SPRINGS RELATED TO A CLAIM ARISING OUT OF A SEPTEMBER 4, 2001 CITY VEHICLE ACCIDENT. I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement by and between Ashlea Paquette and the City of Palm Springs related to a claim arising out of a September 4, 2001 City vehicle accident, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on June 4, 2003. PATRICIA A. SANDERS City Clerk