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HomeMy WebLinkAboutDuggan, Michael; 2020-09-21;SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is made by and between Michael Duggan ("Plaintiff') and the City of Carlsbad ("City"). The above-referenced individuals and/or entities may also be collectively referenced as the "Parties." This Agreement is in full satisfaction of all matters in controversy between the Parties, including, but not limited to, any and all claims or causes of action which could have been or may be brought by Plaintiff, arising in any way out of the incidents described and set forth in the lawsuit entitled Duggan v. City of Carlsbad, et al., United States District Court for the Southern District of California Case No. 3:19-cv-01703-JM-WVG ("Lawsuit"). In consideration of the mutual covenants contained in this agreement, the Parties agree as follows: 1. Settlement, Dismissal and Indemnity. Plaintiff shall dismiss the Lawsuit against all defendants, with prejudice, each side to bear its own attorney fees and costs, and shall withdraw, abandon, and cease to file any further claims, lawsuits, administrative charges, reports, or grievances of any kind whatsoever against any of the defendants or their former or current employees, agents, affiliates, insurers, and attorneys, in exchange for the total sum of Five Thousand Dollars ($5,000.00) ("Settlement Amount"). Payment of the settlement funds shall be transmitted not later than fourteen (14) days after full execution of this Agreement by all Parties. Within ten (10) days after the City transmits the settlement funds, the Parties shall jointly prepare, execute, and file a joint motion to dismiss the Lawsuit, in its entirety, including all claims against all defendants, with prejudice. Plaintiff represents that the Settlement Amount makes him whole for any and all personal injury suffered within the meaning of section 104(a) or section 130(c) of the Internal Revenue Code of 1986, as amended, and specifically agrees that he alone is, and will be, fully responsible for the payment of any and all amounts governmental or tax authorities may claim are due, if any. Plaintiff acknowledges that the City is relying on, among other things, this specific provision in entering into this Agreement and in paying the Settlement Amount, and that this Agreement is not contingent upon any particular tax characterization or treatment of the Settlement Amount. 2. Release. Plaintiff, on behalf of himself, his heirs, executors, administrators, assigns, and successors, irrevocably and unconditionally releases and forever discharges each of the defendants, their 1 current or former officers, directors, employees, managers, agents, affiliates, City Council members, heirs, successors, assigns, insurers, and attorneys (collectively "Releasees") from any and all claims, charges, causes of action, or any other liability (herein collectively referred to as "claims"), whether in contract or tort, by statute or common law, known or unknown, arising out of or relating in any way to the incidents described and set forth in the Lawsuit. 3. Section 1542 Release. Section 1542 of the California Civil Code provides, generally, that a release does not extend to unknown claims. Specifically, section 1542 states 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, WOULD HAVE MATERIALLY AFFECTED HIS OR 14-F,R SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. For the purposes of implementing a full and complete release and discharge of this matter, Plaintiff expressly waives and releases all rights and benefits afforded by section 1542 of the California Civil Code and acknowledges that this Agreement is intended to include and discharge all claims which the Parties do not know or suspect to exist at the time of execution, arising out of or relating in any way to the incidents described and set forth in the Lawsuit. 4. No Admission of Liability. This Agreement is a compromise and settlement of disputed claims being released herein, and therefore, this Agreement and the Settlement Amount do not constitute an admission of liability on the part of Releasees, or an admission, directly or by implication, that they have violated any law, rule, regulation, policy, or any contractual right or other obligation owed to Plaintiff. Releasees specifically deny all allegations of improper or unlawful conduct made by Plaintiff in the Lawsuit, and any or all administrative claims. Releasees enter into this agreement merely to avoid further litigation. 5. Satisfaction of Liens. Plaintiff will satisfy out of the Settlement Amount any and all liens by health care providers or insurance carriers, and recognizes that Releasees do not have control over the payment of liens from the settlement proceeds to health care providers or insurers. Plaintiff agrees to indemnify and hold harmless Releasees and/or their counsel of record in the event any legally valid lien is not satisfied by Plaintiff. Plaintiff acknowledges that Releasees have expressly relied on 2 this representation and warranty. Releasees would not have entered into this Agreement without this representation and warranty. 6. Entire Agreement. This Agreement constitutes the entire written agreement of compromise and settlement between the Parties. There are no other agreements, whether oral or written, modifying its terms. The terms of this Agreement can be modified only by a writing signed by the Parties, expressly stating that such modification is intended. 7. Advice of Counsel. In executing this Agreement, the Parties acknowledge that they have consulted with and have been advised by their respective attorneys, and that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence. The Parties further acknowledge and agree that they have had a reasonable period of time for deliberation before executing this Agreement. 8. Venue. The Parties to this Agreement expressly agree that the only proper venue for any lawsuit arising out of the breach of this Agreement shall be in the San Diego Superior Court. 9. Breach. No waiver of any breach by either party or their attorney of any condition or provision of the Agreement to be performed by the other party or the party's counsel shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. 10. Ambiguities. This Agreement has been reviewed by the Parties and their respective attorneys, and the Parties have had a full opportunity to negotiate the contents thereof. The Parties expressly waive any common law or statutory rule of construction that ambiguities should be construed against the drafter of this Agreement, and agree that the language in all parts of this Agreement shall be in all cases construed as a whole, according to its fair meaning. 11. Severability. 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. 12. Signature in Counterparts. This Agreement may be executed in counterparts, and if so executed, each such counterpart shall have the force and effect of an original. A photocopy or facsimile copy of a signature will be deemed an original for all purposes. 3 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below. Dated. Sep 15, 203t90 Signature: Email: michael@lagataxysd.com 2020 07:0/ 01) Michael Duggan Dated: .0 I i, 2-1 ,2020 City of Carlsbad Name: C,-(volie_K. HC-14akpil Title: ASS IS Lt Ci Ak-bv V1 By: 4