SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS

Transcription

1 SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS This Settlement Agreement ( Agreement ) is entered into by and between The LAPD Newton Area Police Activities League, Inc. ( Plaintiff ) and the City of Los Angeles ( City ) and Newton Police Athletic and Activities League ( NPAAL ) (collectively, Defendants ) for the purpose of resolving all claims relating to, arising out of and concerning the litigation brought by Plaintiff against the Defendants, as more fully set forth below. Recitals A. There are two pending lawsuits in the Los Angeles Superior Court: The LAPD Newton Area Police Activities League, Inc. v. The City of Los Angeles Police Department et al., Case No. BC553987, which was filed on August 7, 2014, and The LAPD Newton Area Police Activities League, Inc. v. The City of Los Angeles et al., Case No. BC581131, which was filed on May 7, 2015 (collectively, the Litigation ). B. Defendants deny they have caused Plaintiff any damage or injury. C. Plaintiff and Defendants (collectively, the Parties ) are represented by counsel and have had the opportunity to obtain, and have obtained, the advice and assistance of counsel in connection with this Agreement. D. The Parties have agreed to a settlement on the terms and conditions specified herein in order to eliminate the cost, burden and uncertainty of litigation and trial. This Agreement shall not be construed as an admission by either of the Parties as to the truth or accuracy of any allegations made in the other party s pleadings. WHEREFORE, in consideration of the promises, covenants, representations and warranties contained herein, and for good and valuable consideration given hereunder, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Settlement Amount. The City shall pay Plaintiff the sum of $45, (the Settlement Amount ) in full and final settlement of all claims the Plaintiff may have arising from, concerning or relating to the Litigation. The City will need a completed Form W-9 in order to process the payment to Plaintiff and Plaintiff agrees to provide such Form. The Settlement Amount shall be paid by check drawn to the order of The Carlin & Buchsbaum, LLP, Client Trust Account. 2. Wells Fargo Bank Account. Defendants agree to waive any claim to the contents of the Wells Fargo Bank Account number , and does not contest Plaintiff LAPD Newton Area Police Activities League, Inc. s access to the account. 3. Computers. NPAAL agrees to turn over to Plaintiff the computers that were described in the Litigation. 1

2 4. Plaintiff's Releases. Plaintiff, and each of its personal representatives, officers, employees, attorneys, administrators and assigns, hereby agrees to fully and forever release and discharge Defendants, together with its elective and/or appointive boards, agents, servants, past or present employees, consultants, departments, commissioners, officers, and all persons, past or present, acting by, through, under, or in concert with them from any and all claims, actions, causes of action, liabilities, damages, demands, attorneys fees, expenses and costs (including without limitation court costs) of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, which have existed or may have existed, or which do exist, or which hereafter shall or may exist, which (1) are alleged or set forth in the pleadings on file in the Litigation, or (2) arise out of or are in any way concerned with or related to any of the transactions, occurrences, acts or omissions involving the facts set forth or alleged in any of the pleadings in the Litigation (hereinafter referred to collectively as Plaintiff s Claims ). Plaintiff represents and warrants that it has not assigned or transferred, or agreed to assign or transfer, or attempted to assign or transfer, to any third party or entity (including without limitation any insurer) any interest in any of the Plaintiff s Claims. 5. Defendants Releases. Defendants, on their own behalf and on behalf of their elective and/or appointive boards, agents, servants, employees, attorneys, consultants, departments, commissioners, and officers, hereby agree to fully and forever release and discharge the Plaintiff, together with each of its officers, employees, administrators and assigns from any and all claims, actions, causes of action, liabilities, damages, demands, attorneys fees, expenses and costs (including without limitation court costs) of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, which have existed or may have existed, or which do exist, or which hereafter shall or may exist, which (1) are alleged or set forth in the pleadings on file in the Litigation, or (2) arise out of or are in any way related to any of the transactions, occurrences, acts or omissions involving the facts set forth or alleged in any of the pleadings in the Litigation (hereinafter referred to collectively as Defendants Claims ). Defendants represent and warrant that they have not assigned or transferred, or agreed to assign or transfer, or attempted to assign or transfer, to any third party or entity (including without limitation any insurer) any interest in any of the Defendants Claims. 6. Unknown Claims. The Parties certify that they have read Section 1542 of the California Civil Code, which provides: 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. Subject to and consistent with the releases set forth in Paragraphs 4 and 5 above, the Parties hereby waive application of Section 1542 of the Civil Code. The Parties 2

3 understand and acknowledge that, as a consequence of this waiver of Section 1542, even if the Plaintiff or Defendants should eventually suffer additional or further loss, damages or injury arising out of or in any way related to any of the transactions, occurrences, acts or omissions set forth or alleged in any of the pleadings in the Action, neither the Plaintiff nor Defendants will be permitted to make any further claims against the parties released herein in order to recover for such loss, damages or injury. The Parties acknowledge that they intend these consequences even as to such claims that may exist as of the effective date of this Agreement but which one or another of the Parties does not know exist, and which, if known, would materially affect their decision to execute this Agreement, regardless of whether their lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 7. Enforcement of Agreement. In the event that any action or proceeding is brought to enforce any of the terms and conditions of this Agreement, such action will be brought in the Superior Court of California, County of Los Angeles. 8. Dismissal with Prejudice. As part of the consideration for the Parties entering into this Agreement, Plaintiff agrees to dismiss, with prejudice, the Litigation against Defendants. Upon receipt of an executed copy of this Agreement and a fileendorsed copy of the Request for Dismissal, dismissing, with prejudice, the entire Litigation against Defendants, the City will deliver the Settlement Amount to Plaintiff. 9. Denial of Wrongdoing. This Agreement reflects the Parties compromise and settlement of the disputes claims in the Litigation. Its provisions, and all related drafts, communications, and discussions, cannot be construed as or deemed to be evidence of an admission or concession of any point of fact or law by any person or entity and cannot be offered or received into evidence or requested in discovery in the Litigation or any other action or proceeding as evidence of an admission or concession. Defendants, in entering into this Agreement, deny any and all wrongdoing. 10. Attorneys Fees. The Parties shall bear their own fees, costs and expenses incurred in connection with the disputes between the Parties which are the subject of, or related to, the Litigation and this Agreement. 11. Entire Agreement. This Agreement is intended by the Parties as a final expression of their agreement and understanding concerning the subject matter hereof and is intended as a complete statement of the terms and conditions of their settlement, and any and all prior oral or written agreements or understandings between the Parties related hereto are superseded. No representations, oral or otherwise, express or implied, other than those specifically referred to in this Agreement, have been made by any party hereto. The terms of this Agreement are contractual and have binding effect. 12. Merger and Integration. This Agreement constitutes a single, integrated written contract expressing the entire agreement relative to the subject matter hereof. No covenants, agreements, representations or warranties of any kind whatsoever have been made by any party hereto, except as specifically set forth herein. All prior discussions 3

4 and negotiations, whether written or oral, have been and are merged and integrated into, and are superseded by, such integrated written agreement. 13. Severability. If any of the provisions of this Agreement or the application thereof is held to be invalid, such invalidity shall not affect any other provision or application of this Agreement to the extent that such other provision or application can be given effect without the invalid provision or application, and to this end, the provisions of this Agreement are declared and understood to be severable. 14. Construction. In construing this Agreement, neither of the Parties hereto shall have any term or provision, or any uncertainty or ambiguity as to any term or provision herein, construed against such party solely by reason of such party having drafted the same, as a result of the manner of the preparation of this Agreement, or otherwise. 15. Execution in Counterparts. This Agreement may be executed in counterparts and all of said counterparts shall collectively constitute one agreement binding on all Parties. 16. Faxed or Electronic Signatures. Faxed and/or electronically scanned signatures shall be deemed originals. 17. Headings or Captions. Headings or captions contained in this Agreement are solely for the convenience of the Parties, are not a part of this Agreement, and are not intended to create any substantive meaning or to modify the terms and clauses either following them or contained in any other provision of this Agreement. 18. Authority. The persons signing this Agreement represent and warrant that they are fully authorized to do so and to bind the Party for whom they are signing. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the dates set forth below. THE LAPD NEWTON AREA POLICE ACTIVITIES LEAGUE, INC. 4

5 CITY OF LOS ANGELES NEWTON POLICE ATHLETIC AND ACTIVITIES LEAGUE 5