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HomeMy WebLinkAbout20141010_Settlement_Holland-Roe_SignedRELEASE OF ALL CLAIMS AND SETTLEMENT AGREEMENT This Release of All Claims and Settlement Agreement (hereinafter also referred to as "Release" or "Release of All Claims") is made by and Kip Holland, individuals (hereinafter referred to as "Plaintiffs"), and Cory Pierce an individual, the City of San Luis Obispo and the County of San Luis Obispo, hereinafter referred to as "Defendants") and relates to those incidents which occurred between March, 2011 and February 2013, in San Luis Obispo County, California, and/or arising out of any actual or alleged interaction between San Luis Obispo Police Dept , San Luis Obispo County Sheriff's Office, Corey Pierce, or other officers, agents, representatives and employees of the foregoing RECITALS WHEREAS, Plaintiffs have filed a civil lawsuit in the United States District Court entitled Roe, et al v City of San Luis Obispo, et al Case No CV 14-1520 (the Action"), WHEREAS, Plaintiffs now desire to resolve all claims arising out of and relating to the Action, NOW, THEREFORE, in consideration of the above premises and the following covenants, it is agreed as follows 1 Plaintiffs agree to accept as full and complete settlement of the Action and the administrator of the self-insurance fund for Defendants agrees to pay to Plaintiffs the total sum of $25,000 00 Said sum shall be paid to the Sanger & Swysen Attorney-Client Trust Account, tax identification no 95-2915164 within ten days from receipt by that administrator of a W-9 from Plaintiffs' counsel 2 Counsel for Plaintiffs shall request of and obtain from the court in the Action a dismissal with prejudice or other form of final termination of the pending Action. Defendants shall cooperate in this request, but shall not be required to make any further appearance in the Action 3 Plaintiffs are responsible for all liens or other expenses incurred by them as a result of this incident and shall hold harmless, defend and indemnify the settling Defendants of and from any such lien claims 4 Defendants have agreed, as additional consideration for this settlement, to pay the full cost of today's mediation. Otherwise, the parties shall each bear their own costs, expenses and legal fees 1- v5Upontheoccurrenceofeventsandconditionssetforthabove, Plaintiffs fully release and forever discharge Defendants, their insurers, agents, employees, representatives, attorneys, affiliates and all persons acting by or through or under or in concert with Defendants, and each of them, from and against any and all claims, causes of action, demands or charges of whatever nature which Plaintiffs may have and which, prior to the date hereof or at any time in the future, might arise out of or be related to the claims stated in the Action 6 Plaintiff is fully apprised of the provisions of California law relating to releases and, in particular, §1542 of the California Civil Code which states A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor Notwithstanding this statutory provision, and to implement a full and complete release, Plaintiffs acknowledge that this Release of All Claims is intended to include in effect, without limitation, all claims which they do not presently know of or suspect to exist against the others arising out of or related to the Action 7 This is a Release of All Claims and as such shall never be treated as an admission of liability by any party for any purpose 8 Plaintiffs warrant that no assignment of any claim, cause of action, demand or charge against the others, arising out of or relating to the beforementioned claims, or any other right or claim now existing has been or will be made, and they further agree to indemnify, to defend and hold the others harmless from and against any assignment of claim, cause of action, demand or charge released hereunder 9 The parties reserve to themselves the right to initiate and to pursue any legal action necessary to enforce the terms of this Release of All Claims In the event of legal action, the prevailing party shall be entitled to recover from the non- prevailing party, their reasonable attorneys' fees and costs actually incurred The legal action need not result in judgment by a court of law before the provisions of this paragraph shall come into effect 10. This Release of All Claims contains the entire understanding of the parties with respect to the subject matter hereof, and no modification or waiver of any of the provisions hereof shall be valid unless it is put into writing and executed by all parties hereto. 2- 11 Should any provision of this Release of All Claims be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms and provisions shall not be affected thereby and said illegal or invalid part, term or provision shall not be deemed to be part of this Release of All Claims This Release of All Claims shall be interpreted according to its plain meaning and not for or against either party as a result of the presumption under Civil Code §1654 12 This Release of All Claims shall be binding on the parties, their heirs, successors, and assigns 13 Plaintiffs represent and warrant that in executing this Release of All Claims, they have relied on the legal advice of their attorney of choice and the terms of this Release and Settlement Agreement and its consequences have been completely read and explained to them by that attorney, and they fully understand the terms of this Release it,7 , KIP •LLA APPROVED AS TO FORM: SANGE /Yr& D KLE Stephen . Dunkle, Att rneys for Plaints fs HOW RD ROME M a = 1 : RIDLEY By 1e ssa M Holmes, Attorneys for Defendant Pierce CITY ® SAN LU . • =ISPO I /1 1 L Or. Christine J. Dietnck, City Attorney, for Defendant City of San Luis Obispo 3-