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HomeMy WebLinkAbout20191003 Kristoffersen Settlement & Release 1995773 SETTLEMENT AGREEMENT AND RELEASE Page 1 of 4 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the “Agreement”) is entered into by and between Michelle Kristoffersen (“Plaintiff”) and the City of San Luis Obispo (“Defendant”), to resolve any and all disputes between them, without any admission of wrongdoing of any kind. Together, Plaintiff and Defendant are referred to herein as the “Parties” and/or individually referred to herein as a “Party” to this Agreement. Recitals A. Whereas, on August 25, 2019, Plaintiff filed a Complaint in the United States District Court for the Central District of California entitled Kristoffersen v. City of San Luis Obispo, Case No.: 2:19-cv- 07369-VAP-SS (the “Lawsuit”); B. Whereas, in the Lawsuit, Plaintiff alleges causes of action for violations of Title II of the Americans with Disabilities Act (42 U.S.C. § 12132 et seq.), the Unruh Civil Rights Act (Cal. Civ. Code § 51 et seq.) and the Disabled Persons Act (Cal. Civ. Code § 54.1 et seq.); C. Whereas, the Parties wish to resolve any and all disputed issues between them, arising out of or related to the allegations made in the Lawsuit, solely in a good-faith attempt to settle a disputed claim and avoid the expenses of protracted litigation; D. Whereas, the Parties have reached tentative agreement on proposed terms of settlement as outlined herein, subject to consideration and final approval of settlement by the City Council of the City of San Luis Obispo. The Council is scheduled to consider the matter at a noticed closed session meeting on or about October 1, 2019. The Parties acknowledge and agree that Legal Counsel for the City does not have prior authority to bind the City without Council authorization. Agreement Therefore, for good and sufficient consideration, the Parties agree as follows: 1. Incorporation of Recitals. The recitals are hereby incorporated into this Agreement as though fully set forth here. 2. Effective Date. The “Effective Date” of this Agreement shall be the date on which the City Council of the City of San Luis Obispo has given final approval to the terms herein. 3. Non-Monetary Relief. Within 24 months the City shall replace the existing credit card meters in downtown San Luis Obispo with ADA compliant meters. DocuSign Envelope ID: 4EA89771-46C9-42C3-AAEC-0D032234E8C5 SETTLEMENT AGREEMENT AND RELEASE Page 2 of 4 4. Settlement Sum. Defendant, in full and final settlement of Plaintiff’s claims for monetary damages related to the Lawsuit, shall pay the settlement sum of twenty-five thousand dollars ($25,000.00) (the “Settlement Sum”). Each party shall otherwise bear its own attorneys’ fees and costs in relation to the Lawsuit and settlement of the Lawsuit. a) Defendant shall cause payment of the Settlement Sum to be made within fourteen (14) days of the Effective Date. b) Payment shall be made by check payable to the “Potter Handy LLP” and delivered to Potter Handy LLP, ATTN: Rhonda Handy, 8033 Linda Vista Road Suite 200, San Diego, CA 92111. c) Plaintiff understands and acknowledges that she will be responsible for all taxes that she is legally responsible to pay as a result of this Agreement. Plaintiff agrees that, should any taxing authority assess any taxes, penalties or interest against her as a result of the Settlement Sum, she is solely responsible for the taxes, penalties, or interest, if any, which may be owed to any governmental agency as a result of the Settlement Sum, and Plaintiff agrees that she will indemnify and hold harmless Defendant for any such taxes, penalties, or interest of any nature. 5. Dismissal with Prejudice. Within ten (10) business days following actual receipt by Plaintiff’s counsel of the Settlement Sum provided for in Section 4 above, Plaintiff will cause to be filed in the Lawsuit a stipulated dismissal with prejudice of the entire Action. Defendant will cooperate in the timely filing of said dismissal. 6. Mutual Release. For and in consideration of the covenants contained herein and in consideration of the Settlement Sum described in Section 4 of this Agreement paid by Defendant to Plaintiff, each of the parties to this Agreement, on behalf of themselves and their respective predecessors, assignees, transferees, subsidiaries, administrators, successors -in-interest, affiliates, parents, employees, managers, accountants, landlords, tenants, agents, servants, officers, directors, shareholders, attorneys and indemnitors, do hereby release, acquit and forever discharge each other and their respective predecessors, assignees, transferees, subsidiaries, administrators, successors -in-interest, affiliates, parents, employees, managers, accountants, landlords, tenants, agents, servants, officers, directors, shareholders, attorneys and indemnitors, of and from any and all claims, potential claims, demands, and cause or causes of action arising out of the Lawsuit through the Effective Date of the Agreement. 7. Waiver of Rights under Civil Code Section 1542. As to the matters released herein, each of the Parties to this Agreement expressly waives, to the full extent permitted by law, all rights pursu ant to §1542 of the California Civil Code which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER DocuSign Envelope ID: 4EA89771-46C9-42C3-AAEC-0D032234E8C5 SETTLEMENT AGREEMENT AND RELEASE Page 3 of 4 WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. The Parties each acknowledge to the other that they are aware that they or their attorneys may discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of this Agreement, but that it is their intention to settle and release fully, finally and forever, any and all disputes and differences, known and unknown, suspected and unsuspected, which now exist, may exist, have existed, or hereafter may exist in the future between them relating to the subject matter of this Agreement. 8. No Admission of Liability. The Parties agree that neither this Agreement nor anything said in the negotiation hereof shall constitute an admission of liability, an acknowledgement of wrongdoing of any kind, or an admission or concession by Defendant on any point of fact or law. Neither this Agreement nor any of its terms shall be used as an admission or introduced as evidence as to any issue of law or fact in any action, other than an action to enforce this Agreement. This Agreement reflects, among other things, the compromise and settlement of disputed claims. 9. Knowing and Voluntary. In executing this Agreement, it is understood and agreed that the Parties rely wholly on their own judgment, belief, and knowledge of the nature extent, and duration of the alleged damages, and that the Parties have not been influenced to any extent in executing this Agreement by any representations or statements, regarding alleged damages or regarding any other matter, made by the Parties or by any person or persons representing the Parties. 10. Invalidity of any Provision. If any provision of this Agreement is held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, the remainder of this Agreement shall remain in effect and be valid and fully enforceable. 11. Copies. In any action or proceeding relating to this Agreement, a true and correct copy of this Agreement shall be admissible to the same extent as the original Agreement. 12. Controlling Law: This Agreement is entered into in the State of California and shall in all respects be interpreted, enforced and governed by the laws of the State of California and where applicable, Federal law. 13. Drafting of this Agreement. Each of the Parties hereto represents that he or it fully participated in the drafting and terms of this Agreement. Accordingly, any ambiguities in the terms of this Agreement shall not be construed against either of the Parties and any doctrine of law regarding interpretation of any such ambiguities in the terms and provisions of this Agreement against the Party drafting this Agreement shall not be applicable. 14. Integration. This Settlement Agreement and Release constitutes an integration of the entire understanding and agreement of the Parties, and supersedes all prior negotiations and understandings concerning the subject matter of this Agreement. Any representations, warranties, promises, or DocuSign Envelope ID: 4EA89771-46C9-42C3-AAEC-0D032234E8C5