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HomeMy WebLinkAbout10/2/2002 - STAFF REPORTS (10) SETTLEMENT AGREEMENT AND RELEASE SWERDLOW V. CITY OF PALM SPRINGS, ET AL. EDCV 01-00829 VAP (SGLx) This Settlement Agreement and Release ("Agreement") is made by and between (1) Plaintiff LANNY SWERDLOW("Plaintiff'), and (2) Defendants CITY OF PALM SPRINGS and J. BOOTH ("Defendants")(collectively referred to herein as the "Parties"): RECITALS A. On August 2, 2001, the Defendants issued Plaintiff a citation for violation of a section of Palm Springs Municipal Code 5.20 at the Villagefest Street Fair on August 2, 2001 (the "Incident"); B. In light of the Incident, on October 25, 2001, Plaintiff filed his complaint in United States Federal District Court, case number EDCV 01-00829 alleging that Defendants were acting in violation of the First Amendment rights of Plaintiff by enforcing Palm Springs Municipal Code 5.20, a purported unconstitutional handbill ordinance (the "Action"); C. After the filing of the Complaint and the Plaintiff s subsequent motion for injunctive relief, the Parties entered into an agreement with the Court to stay prosecution of the case and allow the Defendant City an opportrmity to review and recommend revisions to the existing Chapter 5.20; D. On or about February, 2002, Defendant City's legal counsel and staff revised Chapter 5.20. Thereafter, the Parties entered into further discussions regarding this revised ordinance on handbillling and a potential settlement of the case; E. On July 10, 2002, the Parties appeared before the Hon. William M. Byrne, United States District Court Judge, for a settlement conference. The Parties reached a settlement of all issues relating to this action and placed the settlement upon the record in open court; and F. At this time the Parties desire to resolve this matter without fiuther litigation and therefore intend with this Settlement Agreement to resolve all issues pertaining to the Action upon the terms and conditions set forth in this Agreement. AGREEMENT THEREFORE, in consideration of the recitals, promises, representations, covenants, terms, conditions, and releases contained in this Agreement, the Parties agree as follows: 1. Revisions to Chapter 5.20. Defendant City of Palm Springs agrees to recommend for approval a further revision to Chapter 5.20 in accordance with the language previously agreed upon by cmmsel in February, 2002. IRV#24126 v2 -1- 2. Stipulation of Dismissal. The Parties shall execute and file a Stipulation of Dismissal with prejudice with the United States District Court in accordance with FRCiv.P 4 1(a)(1)(ii). 3. Settlement Payment. Defendants agree to pay Plaintiff the sum of twenty-five thousand ($25,000) dollars in full settlement of any and all damages, attorney's fees and costs in this case, made payable to the Law Office of Carol A. Sobel - Client Trust Account. 4. Release of Defendants. Upon payment of the sum set out in Paragraph 3, above, Plaintiff hereby releases and forever discharges the "Releasees" hereunder, consisting of the City of Palm Springs, its elected or appointed public officials, its officers, employees, and agents, including, but not limited to, Defendant J. Booth, and each and all of them and (as the case may be) each of their associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, lawyers, and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, darnages, loss, cost or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which Plaintiff now has or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof including, without limiting the generality of the foregoing, any Claims constituting, arising out of, based upon, or relating to the Action, the allegations made therein, and the Incident as well as ally matters, causes, or things whatsoever that were, or have been, could in any way have been, alleged in the respective pleadings filed in said suit. 5. Discovery of Different or Additional Facts. The Plaintiff acknowledges that he may hereafter discover facts different from or in addition to those that he now knows or believes 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 the Release set forth in Paragraph 4 of this Agreement, and expressly agrees to assume the risk of the possible discovery of additional or different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 6. Release of Unknown Claims. The Release set forth above in Paragraph 4 of this Agreement is a mutual release of ALL claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have as a result of the Action, the allegations made therein, and the Incident, except for any claims which may arise from the terms of this Agreement. 7. Waiver of Civil Code Section 1542. Further, Plaintiff expressly agrees to waive and relinquish all rights and benefits that he may have under Section 1542 of the Civil Code of the State of California. That section reads as follows: " §1542. [General release; extent] 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." IRV$24126 v2 lava 8. No Other Pending Actions. Plaintiff represents that he has not fled any complaints or charges (other than the Action referenced above) against the Released Parties with any local, state or federal agency or court; and that if any such agency or court assumes jurisdiction of any complaint or charge against the Defendants, or their predecessors, successors, heirs, assigns, employees (including but not limited to each of the employees identified or accused in the Action), shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations, whether previously or hereafter affiliated in any manner, on behalf of Plaintiff, whenever fled, they will request such agency or court to withdraw from the matter forthwith. 9. No Assignment of Claims. Plaintiff warrants that he has made no assignment, and will make no assignment, of any claim, chose in 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. 10. 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. 11. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. 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 further represent that they have each carefully read and hilly 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. The Parties further specifically represent that prior to signing this Agreement they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 12. 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. 13. Release of Plaintiff. Upon the execution of this Settlement Agreement, the Defendants, and each of them, agree to release Plaintiff from any and all counterclaims they may have had or intended to assert in this matter, including, but not limited to a claim for malicious prosecution. 14. Counterparts and Facsimile. This Agreement may be executed in counterparts and by facsimile. Each executed counterpart will be deemed an original, and all executed counterparts, when taken together, shall constitute one and the same document. 15. Authorization. Each undersigned warrants that it has the authority to execute this agreement on behalf of its respective parties and that it has read and understood and agrees to all of the terns and conditions of this Agreement. IRV 924126 Q _3_ 16. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 17. 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. 18. Injunctive Relief for Breach. The Parties acknowledge and agree that any material violation of this Agreement is likely to result in immediate and irreparable harm for which monetary damages are likely to be inadequate. Accordingly, the Parties consent to injrmctive and other appropriate equitable relief upon the institution of proceedings therefor by any other party in order to protect the rights of the Parties under this Agreement. Such relief shall be in addition to any other relief to which the Parties may be entitled at law or in equity. 19. 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. 20. Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 21. 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 to the application of the rules on interpretation of contracts. 22. Waiver. Failure to insist on compliance with any tenn, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquislmient 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 ally other time or times. 23. 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 conflicts of laws principles. 24. 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 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, IRV 424126 Q -4- /o� y modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. 25. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each party hereto in order to become effective. IN WITNESS WHEREOF, the undersigned have executed this Dismissal Agreement and Release of Claims, consisting of a total of six(6)pages, on the dates set forth below. "Plaintiff' DATED: LANNY SWERDLOW LANNY SWERDLOW "Defendants" DATED: CITY OF PALM SPRINGS DAVID READY, CITY MANAGER DATED: J. BOOTH J. BOOTH [SIGNATURES CONTINUED ON NEXT PAGE] IRV 924126 Q -5- lbAs Approved as to Form: DATED: LAW OFFICE OF CAROL A. SOBEL ACLU FOUNDATION OF SOUTHERN CALIF. By: CAROL A. SOBEL Attorneys for Plaintiff DATED: BURKE, WILLIAMS & SORENSEN, LLP By: DAVID J. ALESHIRE Attorneys for Defendants IRV#24126 vz _6_ MINUTE ORDER NO. APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF LANNY SWERDLOW AND DEFENDANTS CITY OF PALM SPRINGS AND J. BOOTH. ------------------ I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement and Release between Plaintiff Lanny Swerdlow and Defendants City of Palm Springs and J. Booth, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 2"d day of October, 2002. PATRICIA A. SANDERS City Clerk