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HomeMy WebLinkAbout2015 CON (Settlement Agreement) Frank LindsayNOTE TO FILE 01-25-18 IN THE MATTER OF: The Settlement and Release Agreement by and between the City of National City and plaintiff, Frank Lindsay. Please note the following: A FULLY EXECUTED ORIGINAL SETTLEMENT AND RELEASE AGREEMENT WAS NEVER FILED WITH THE OFFICE OF THE CITY CLERK. A COPY OF THE FULLY EXECUTED AGREEMENT WAS PROVIDED. ORIGINATING DEPARTMENT: NTF _ CDC Housing & Grants X City Attorney Human Resources City Manager MIS Community Svcs. Planning Engineering Police Finance Public Works Fire SETTLEMENT AND GENERAL RELEASE OF CLAIMS THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is made and entered into by and among plaintiff Frank Lindsay ("plaintiff'), on one hand, and the City of National City ("City") on the other hand. RECITALS A. On or about April 8, 2014, plaintiff filed a lawsuit in the United States District Court Southern District of California, Case No. 14-CV-0855-L BLM ("Action"), entitled Frank Lindsay v. National City, et al., relating to plaintiff's civil rights challenges to the entirety of Title 10, Chapter 10.63 of the National City Municipal Code (the "Ordinance"), including allegations that the Ordinance violates the First, Fifth, and Fourteenth Amendments to the United States Constitution, the Ex Post Facto Clause of the United States Constitution, and Article XI, Section 7 of the California Constitution. The Ordinance was repealed by the City in November 2014 which was confirmed by a Second Reading in December 2014. The City denies each and every allegation in the Action. B. The parties hereto now wish to settle and resolve all claims, disputes, and differences existing between them arising out of the Action upon the terms and conditions set forth below. FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows: 1. Within fourteen (14) days of execution of the Agreement, the City shall pay the total sum of Seven Thousand Dollars and No/100 ($7,000.00) to Frank Lindsay and his attorney of record Law Offices of Janice M. Bellucci by way of draft or check, made payable to "Family Safety Foundation," which represents the total sum of agreed upon reasonable attorneys' fees and litigation costs incurred by plaintiff in prosecution of this matter. 2. The parties hereto shall bear their own attorneys' fees and costs, except as noted in paragraph 1 of this agreement, incurred in connection with the Action. Plaintiff shall file a Request for Dismissal, with prejudice, as to the entire Action. The United States District Court Page 1 of 5 Southern District of California shall retain jurisdiction solely for the purpose of taking any action required to enforce the terms of the Settlement Agreement. 3. The undersigned hereby releases and further discharges the City and all other persons, firms and corporations from all claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of the Action. 4. Plaintiff and his counsel agree not to discuss the substance of this Agreement with any person for the purpose of initiating public disclosure, or to hold a press conference, prepare a press release or make any statement of a public meeting regarding the substance of this Agreement. The parties hereto further acknowledge that this Agreement shall be a public record. Therefore, disclosures made of the Agreement as required by the Ralph M. Brown Act ("Brown Act") or Public Records Act ("PRA") shall not violate the provisions of this Agreement. This paragraph may be specifically enforced. However, rescission in connection with this paragraph is not a remedy and is hereby waived in connection with this paragraph. 5. There is a risk that, after the execution of this Agreement, plaintiff will manifest new damage, the scope, location, and character of which is unknown and/or not discovered at the time this Agreement is signed. There is a risk that the damage of which plaintiff and his attorneys presently are aware may become more serious or otherwise increase in magnitude (qualitatively and/or quantitatively). Plaintiff shall, and hereby does, assume the above - mentioned risks. This release is expressly intended to cover and include all damages, past, present or future, including all rights and causes of action against the City. Plaintiff is aware, and has been advised by his attorneys, of the provisions of California Civil Code section 1542, which provides: 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. 6. Plaintiff hereby expressly waives the provisions of said Section 1542 as to all matters within the scope of the claims which have arisen, may arise and/or could arise. Plaintiff Page 2 of 5 hereby warrants and guarantees that he has full and complete authority to release all such claims on behalf of himself, his heirs, assigns and successors in interest. 7. Plaintiff fully understands and declares that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, plaintiff assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. Plaintiff represents and covenants that he is fully informed regarding all facts related to this Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. 8. It is expressly understood, acknowledged and agreed to by the parties, that by reason of entering into this Agreement, no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, whether or not referred to herein, or the sufficiency of any claims, allegations, assertions, or positions of any party; no party has made any such admissions, and this Agreement is entered into solely by way of compromise and settlement only. 9. Plaintiff represents and warrants there has been no assignment or other transfer of any claims or causes of action which he is releasing pursuant to the terms of this Agreement. 10. This Agreement, as fully executed, constitutes the full and entire Agreement between the parties hereto and such parties acknowledge that there is no other Agreement, oral and/or written, between the parties hereto. 11. Plaintiff acknowledges that: (1) this Agreement and its reduction to final form is the result of extensive good faith negotiations between the parties through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by plaintiffs; and (3) any statute or rule of construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. 12. This Agreement is, and shall be, binding upon, and shall inure to the benefit of, the predecessors, subsidiaries, successors, assigns, parties, agents, officers, employees, Page 3 of 5 employers, associates, legal representatives, heirs, executives and/or administrators of each of the parties hereto. 13. This Agreement is made and entered into the State of California and shall, in all respects, be interpreted, enforced and governed by and under the laws of the State of California. 14. This Agreement may be amended or modified only in writing signed by all parties to this Agreement. 15. Plaintiff warrants that no promise or inducement has been made or offered by the City, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of the City or its representatives, concerning the nature and extent of the damages or legal liability. Therefore, plaintiff further represents that he has been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and he has been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 16. Should any action be necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney's fees. 17. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected by said illegal or invalid part, term, or provision, and shall be deemed not to be a part of this Agreement. 18. This Agreement may be executed in counter -parts with the same effect as if all original signatures were placed on one document, and all of which together shall be one and the same Agreement. Page 4 of 5 19. This Agreement to be effective as of the datc 11 signatures are obtained. DATED: I ~ 13 -- ( C Frank Lindsay, Plaintiff CITY OF NATIONAL CITY DATED: By; Leslie Deese City Manager, City of National City APPROVED AS TO FORM AND CONTENT: DATED: / — / 3 — /S LAW OFFICES OF M. BELLUCCI .e. ) - /& ice M. Bellucci, Esq. �Jtttomey for Plaintiff, Frank Lindsay McDOUOAL, LOVE, ECKIS, BOEHMER & FOLEY DATED: By: Steven E. Boehmer, Esq. Attorneys for City of National City Page 5 of 5 19. This Agreement to be effective as of the date all signatures are obtained. DATED: DATED: 1 t 151' 5 Frank Lindsay, Plaintiff CITY OF NATIONAL CITY By: --- Leslie Deese City Manager, City of National City APPROVED AS TO FORM AND CONTENT: LAW OFFICES OF JANICE M. BELLUCCI DATED: By: Janice M. Bellucci, Esq. Attorneys for Plaintiff, Frank Lindsay DATED: It-:- McDOUGAL, LOVE, ECKIS, BOEHMER & FOLEY By: t r Steven E 3 oehmer, Esq. Attorneys for City of National City Page 5 of 5 Mike Dalla From: Ginny Miller Sent: Thursday, August 20, 2015 3:32 PM To: Mike Dalla; Curtis Stephan Cc: Leslie Deese; Claudia Silva Subject: Lindsay v. National City Attachments: Lindsay Settlement and General Release of Claims.pdf Good afternoon, Attached is a copy of the full -executed Settlement and General Release of Claims in the above -referenced matter for your files. Thank you, Ginny Miller Executive Assistant to the City Attorney City of National City 1243 National City Blvd National City, CA 91950-4301 PH: (619) 336-4220 FX: (619) 336-4327 Office Hrs: Monday — Thursday; 7:00 am — 6:00 pm This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510- 2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message immediately. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. Thank you. 1 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk FRANK LINDSAY Settlement and Release Agreement Ginny Miller (City Attorney) Forwarded Copy of Agreement to Frank Lindsay.