COMPROMISE AGREEMENT AND RELEASE

Transcription

1 ,/'.,. COMPROMISE AGREEMENT AND RELEASE MICHAEL D. HAMBURGER and KRISTENE K. HAMBURGER ("Plaintiffs"), and CITY OF HANFORD, HANFORD POLICE DEPARTMENT, CARLOS A. MESTAS, individually and in his official capacity as the Chief of Police for the Hanford Police Department, OFFICER JASON STINGLEY, individually and in his official capacity as a Police Officer for the Hanford Police Department, OFFICER STEVE SCHMITZ, individually and in his official capacity as a Police Officer for the Hanford Police Department, SERGEANT JAMES LUTZ, individually and in his official capacity as a Police Officer for the Hanford Police Department, LIEUTENANT GREG FREINER, individually and in his official capacity as a Police Officer for the Hanford Police Department, and SENIOR OFFICER JIMENEZ, individually and in his official capacity as a Police Officer for the Hanford Police Department ("Defendants"), in consideration of the promises made herein, agree as follows: 1. Nature and Effect of Agreement This Compromise Agreement and Release ("Agreement") consists of a compromise and settlement by the parties of Plaintiffs claims against Defendants arising from the disputes described in Section 2 herein and a release given by Plaintiffs to Defendants relinquishing Plaintiffs claims. By executing this Agreement, each of the parties intends to and does hereby extinguish the obligations, heretofore existing between them and arising from the disputes. This Agreement is not, and shall not be treated as, an admission of liability by any party for any purpose. 2. Nature and Status of Dispute On September 19, 2013, Plaintiffs filed a Complaint, in the County of Kings, State of California, Court Action No. 13 C 0256, alleging assault, battery, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, false arrest/false imprisonment, violation of California Civil Code section 52. l(b), violation of 42 U.S.C (unreasonable search and seizure via the Fourth and Fourteenth Amendments of the Unites States Constitution), and violation of 42 U.S.C (excessive force via the Fourteenth Amendment of the United States Constitution). 3. Consideration to be paid by Defendants In exchange for the promises, covenants and agreements by the Plaintiffs as set forth in this Agreement, the Defendant City of Hanford ("City") agrees to pay and do the following: a. The City agrees to pay the sum of Ten Thousand Dollars and Zero Cents ($10,000.00) in settlement of the actions stated in Section 2 ("Settlement Payment"). The Settlement Payment will be paid by check payable to Plaintiffs and their attorneys of record jointly, known as the Law Offices of Derek P. Wisehart. Said Settlement Payment is to be made within thirty days (30) days of the Effective Date of this Agreement as provided in Section 12 below. Page 1of6

2 'I ' 4. Compromise Agreement In consideration for the agreement of the City to make the Settlement Payment and do the acts described in Section 3 above, as well as the other promises and agreements by the Defendants as set forth in this Agreement, each of the Plaintiffs hereby compromises and settles any and all claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, demands, expenses, and compensation, whether based on tort, contract, or other theories of recovery, Plaintiffs now have or may have against Defendants, their predecessors and successors in interest, heirs and assigns arising from the facts which are the subject matters of the legal actions identified in Section 2 herein, and agree that this compromise and settlement shall constitute a bar to all such claims. Plaintiffs agree to dismiss with prejudice both legal actions identified in Section 2 herein, and agree that this compromise, release and settlement shall constitute a bar to all existing claims arising out of the facts which are the subject matter of the legal actions described in Section 2 herein. 5. Release and Discharge Plaintiffs hereby do release and discharge Defendants, their predecessors, and successors in interest, heirs and assigns from, and relinquish, any and all past, or present claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expenses and compensation, whether based on tort, contract, or other theories of recovery, that Plaintiffs now have or may have against Defendants arising from the facts which are the subject of the legal actions described in Section 2 herein. However, this Agreement shall not operate to release, nor do any of the Plaintiffs agree to waive, any claims arising under the workers' compensation laws of California. 6. Unknown Claims a. Plaintiffs acknowledge and agree that the release that they give to Defendants on executing this Agreement applies to all claims for injuries, damages or losses to Plaintiffs' person and property, real or personal (whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent) that Plaintiffs may have against Defendants, arising out of the facts which are the subject matter of the legal actions described in Section 2 herein and Plaintiffs hereby waive application of Civil Code Section 1542 of those claims. b. Plaintiffs certify that they have read the following provisions of Civil Code Section 1542: "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." Page 2 of6

3 Plaintiffs acknowledge each one's waiver of the application of Civil Code Section 1542 by signing their initials here: ). µ/;te \ ';).. I \ 8" I 1 '1 ll{g~ ~ ~" STENE. I IAMB UR.GER C. Plaintiffs understand and acknowledge that in consequence of this waiver of Civil Code Section 1542, even if they should eventually suffer additional damages arising out of the claims alleged in the legal actions described in Section 2 herein, they will not be able, based on the facts, to make any legal claim for those damages. Furthermore, Plaintiffs acknowledge that they intend these consequences even as to claims for damages that may exist as of the date of this release but that Plaintiffs do not know exist, and that if known, would materially affect Plaintiffs' decision to execute this Agreement, regardless of whether Plaintiffs' lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 7. Advice of Attorney Each party warrants and represents that in executing this Agreement, they have relied on legal advice of the attorney of their choice; that the terms of this Agreement have been read and its consequences (including risks, complications, and costs) have been completely explained to them by that attorney; and that they fully understand the terms of this Agreement. Plaintiffs further acknowledge and represent that, in executing this Agreement, they have not relied on any inducements, promises, or representations made by Defendants or any party representing or serving them, other than that what is stated herein. 8. Conditions of Execution Each party acknowledges and warrants that their execution of this Agreement is free and voluntary and each party further affirms he/she/it will not personally or through a third party, disparage the acts or motives of another party regarding the facts which are the subjects of the lawsuit described in Section 2 herein, nor the acts or motives of another party regarding the settlement of the claims alleged in the lawsuit described in Section 2 herein to any third party, provided that nothing in this section shall preclude or otherwise limit any party from discussing or testifying ifrequired by law. 9. Execution of Other Documents Plaintiffs shall direct their attorneys to cause the legal action identified in Section 2 herein to be dismissed with prejudice and deliver executed copies of the requests for dismissals to counsel for Defendants. Each party to this Agreement shall cooperate fully in Page 3 of6

4 the execution of any and all other documents and in any additional acts that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 10. Attorneys' Fees Each party to this Agreement shall bear all his/her/its attorneys' fees and costs arising from that party's own counsel in connection with the legal actions identified in Section 2 herein, this Agreement, and the matters referred to herein, the dismissal of the legal actions described in Section 2 herein, and all related matters. This section shall be applicable to this entire Agreement. In an action to enforce this Agreement, the prevailing party, as determined by a Court, shall be entitled to reasonable attorneys' fees. 11. Entire Agreement This Agreement contains the entire agreement between the parties. 12. Effective Date This Agreement shall become effective immediately on execution by Plaintiffs and Defendants, provided that this Agreement has previously been approved by the Hanford City Council. 13. Governing Law This Agreement is entered into, and shall be construed and interpreted, in accordance with the laws of the State of California. 14. Counterparts and Modification This Agreement may be executed in counterparts. This Agreement may only be modified in writing, signed by all parties who are effected by the modifications. Dated /1- I t / f '{' Ab~ { J.. { l 'f( / U-1_ 117 tjj&a ~K.HAMBURGER ~ ( ~ J~ lf ~ - of. '--- Page 4 of6

5 ~~~~~~~~~ /)-=-J/1 -/Cf /;l-i!f-lf ~ 1 - \~ -l ::::.- c::lli2~- INTERIM CHIEF OF POLICE PAR.KER SEVER, on behalf of, HANFORD POLICE DEPARTMENT --- ~ ~- (~ A~~, tldividuallyll1 former capacity as the Chief of Police for the Hanfor~ent LIEUTENANT GREG FREINER, individually and in his capacity as a Lieutenant for the Hanford Police Department /ti/ -3() -~o-;( /J J q, \~ / ) i individually cttfa in his capacity as a Senior Officer for the Hanford Police Department R JASON STINGLEY, individually nd in his capacity as a Police Officer for the Hanford Police Department, individually and in his capacity as a Police Officer for the Hanford Police Department Page 5 of6

6 ~ ~... APPROVED AS TO FORM AND CONTENT: I "/t g /I q I ' 1 W OFFICES OF DEY Attorney for: Plaintiffs I / \ 2.-} ~ '5" '...,...IO l'j. L,/-UVlV!V\. Attorney for: Defendants Page 6 of6