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CONTRACT 3567 Settlement AgreementI "SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS" 2 This Settlement Agreement and Release of All Claims ( "Settlement Agreement ") is 3 made and executed by and among Claimant KEITH POSTELL ( "POSTELL "), Claimant 4 ROGER WHITE ( "WHITE ") (collectively "CLAIMANTS "), and CITY OF EL SEGUNDO 5 ( "EL SEGUNDO") and is made with reference to the following definitions and recitals: 6 RECITALS: 7 1. A dispute arose between CLAIMANTS POSTELL AND WHITE and EL 8 SEGUNDO, resulting in a claim presented by claimants to EL SEGUNDO, and received 9 October 11, 2005, EL SEGUNDO claim number 05 -42 (hereinafter "CLAIM "). 10 CLAIMANTS allege therein that on April 19, 2005, at Rosecrans Avenue near Apollo Street, 11 EL SEGUNDO police officer Ken Cheng "tried to shoot" CLAIMANTS, shot WHITE'S 12 automobile, and falsely arrested POSTELL. CLAIMANTS also allege deprivation of civil 13 rights, pain and suffering, property damage, mental anguish, loss of earnings and earning 14 capacity, and attorneys' fees. This incident is referred to herein as the "DISPUTE." 15 2. EL SEGUNDO denies liability with respect to CLAIMANTS' allegations. 16 Nothing in this Settlement Agreement, CLAIMANTS' CLAIM, or the negotiation process 17 shall be construed as an admission or evidence of liability under any federal, state, or local law 18 or constitutional provision. 19 3. CLAIMANTS and EL SEGUNDO understand and agree that the DISPUTE 20 arose out of and relates to a traffic stop on WHITE's automobile on April 19, 2005 on 21 Rosecrans Avenue in the City of El Segundo; the discharge of EL SEGUNDO Officer Cheng's 22 weapon during this traffic stop; and the arrest of POSTELL. CLAIMANTS and EL 23 SEGUNDO desire to resolve all of the issues raised in the CLAIM and enter into this 24 Settlement Agreement, to FINALLY, FULLY and COMPREHENSIVELY settle the 25 DISPUTE and the CLAIM and to release fully and completely ALL CLAIMS that POSTELL 26 and WHITE now have or have ever had, individually or collectively, against EL SEGUNDO 27 and its officers, employees, individually or collectively, so as to allow the CLAIMANTS and 28 EL SEGUNDO to continue their pursuits having fully, finally, comprehensively and -I- Settlement Agreement and Release 3567 - . 1 conclusively resolved the DISPUTE, the CLAIM, and the underlying contentions and 2 allegations. 3 AGREEMENT: 4 4. In consideration of the covenants herein contained, and for good and valuable 5 consideration, the receipt and adequacy of which is hereby acknowledged, CLAIMANTS and 6 EL SEGUNDO hereby agree as follows, in full and complete settlement of the DISPUTE, 7 CLAIM, and any and all claims the CLAIMANTS, and each of them, may have against EL 8 SEGUNDO and its officers, employees, or agents, arising out of the DISPUTE: 9 5. EL SEGUNDO shall cause to be paid to CLAIMANTS POSTELL and WHITE, 10 jointly, $126,000. EL SEGUNDO assumes no responsibility of or liability for apportionment 11 of this money to POSTELL and WHITE. 12 6. In exchange for said sum herein, CLAIMANTS POSTELL and WHITE, and 13 each of them, discharge, release, and shall have released EL SEGUNDO and its councils, 14 elected officials, trustees, officers, directors, employees, attorneys, agents and insurers, and 15 their successors and assigns, from any and all claims for monetary, injunctive, equitable, or 16 declaratory relief that are the subject of, included within, and /or arise from the DISPUTE, 17 including but not limited to all allegations contained in the CLAIM. No lawsuit, for money 18 damages, injunctive relief, or any other kind of relief shall be filed by or on behalf of either of 19 the CLAIMANTS for any allegation arising out of the DISPUTE or as reflected in the CLAIM, 20 whether in the Los Angeles Superior Court, United States District Court, or in any other court 21 of competent jurisdiction. 22 7. POSTELL and WHITE each acknowledge and agree that this is a compromise 23 settlement of the hereinabove mentioned DISPUTE, which is not in any respect to be deemed, 24 construed or treated as an admission or a concession of any liability whatsoever by EL 25 SEGUNDO or its councils, elected officials, trustees, officers, directors, employees, attorneys, 26 agents and insurers, and their successors and assigns, for any purpose whatsoever. 27 8. Each party has made such investigation of the facts pertaining to this Settlement 28 Agreement and all matters pertaining hereto as he has determined necessary. This Settlement -2- Settlement Agreement and Release 3567 1 Agreement is intended to be final and binding among CLAIMANTS and EL SEGUNDO, 2 regardless of any claims or misrepresentations, promises made without the intention of 3 performing them, mistakes of fact or law, or any other circumstances whatsoever, and under no 4 circumstances shall CLAIMANTS or EL SEGUNDO be entitled to set aside this Settlement 5 Agreement, either in whole or in part. In entering into this Settlement Agreement, 6 CLAIMANTS assume the risk of any misrepresentation, concealment or mistake, whether or 7 not CLAIMANTS should subsequently discover or assert for any reason that any fact relied 8 upon by CLAIMANTS in entering into these releases was untrue, or that any fact was 9 concealed from CLAIMANTS hereto, or that CLAIMANTS' understanding of the facts or of 10 the law was incorrect or incomplete. 11 9. Excepting only the obligations imposed by this Settlement Agreement, 12 POSTELL and WHITE, for themselves and all of their respective predecessors, successors, 13 assigns, representatives, attorneys or agents, do hereby fully and forever release and discharge 14 EL SEGUNDO and all of its predecessors, successors, employees, agents, assigns, 15 representatives, attorneys of and from any and all actions, claims, demands, rights, damages, 16 costs, expenses, fees, and compensation of any nature whatsoever, which POSTELL and 17 WHITE have or may hereafter accrue, including without limitation, any and all known and 18 unknown, foreseen and unforeseen claims, damage and injury, relating to, or in any way, 19 directly or indirectly, involving or arising out of any facts or circumstances of the DISPUTE, 20 and /or which are alleged or could have been alleged in the CLAIM, and could be alleged in a 21 subsequent civil action filed in the Los Angeles Superior Court, in the United States District 22 Court, or in any other court of competent jurisdiction. 23 10. It is the intention and understanding of the CLAIMANTS and EL SEGUNDO, 24 in executing this instrument, that it shall be effective as a full and final accord and satisfaction 25 and compromise and release, as between them and them only, of each and every settled or 26 released matter. In furtherance of this intention, POSTELL and WHITE acknowledge that 27 they are familiar with Section 1542 of the Civil Code of the State of California which provides 28 as follows: -3- Settlement Agreement and Release 3 5 � / 1 "A general release does not extend to claims which the creditor does not know or 2 suspects to exist in his favor at the time of executing the release, which, if known 3 by him, must have materially affected his settlement with the debtor." 4 Excepting only the obligations imposed by this Settlement Agreement, CLAIMANTS, 5 and each of them, hereby expressly waive or relinquish any right or benefit which they have, or 6 might have, under Section 1542 of the Civil Code of the State of California and all other 7 similar provisions of law of other jurisdictions to the fullest extent allowed by law. In 8 connection with such compromise, waiver and relinquishment, CLAIMANTS, and each of 9 them, acknowledge that they are aware that they may hereafter discover facts in addition to or 10 different from those which they now know or believe to be true with respect to the subject 11 matter of this instrument, but that, except as is otherwise provided herein, it is their intention 12 hereby to fully, finally and forever settle and release all matters, disputes and differences, 13 known or unknown, suspected or unsuspected, which do now exist, may exist, or heretofore 14 have existed, and that in furtherance of such intention, the release actually given herein shall be 15 and remain in effect as a full and complete general release, notwithstanding the discovery or 16 existence of any such additional or different facts. 17 11. This Settlement Agreement also constitutes a full and complete settlement of 18 any and all claims the CLAIMANTS have against EL SEGUNDO and its officers, employees 19 or agents, regarding any alleged excessive force, false arrest, negligence, deprivation of civil 20 rights, intentional and /or negligent infliction of emotional distress, or any other cause of action 21 or theory of liability under which a civil action could have been brought arising out of the 22 DISPUTE. 23 OTHER TERMS AND PROVISIONS: 24 12. Governing Law. This Settlement Agreement shall be governed and interpreted 25 in accordance with the laws of the State of California. CLAIMANTS and EL SEGUNDO 26 agree that the laws of the State of California shall apply, and that any action brought hereunder 27 shall be subject to the laws and statutes of the State of California. CLAIMANTS and EL 28 SEGUNDO expressly agree that any disputes, disagreements or actions shall be venued with -4- Settlement Agreement and Release 35Si 1 the Superior Court of Los Angeles County, State of California. CLAIMANTS and EL 2 SEGUNDO stipulate that they are subject to the jurisdiction of the Los Angeles Superior Court 3 and hereby expressly Waive any defense to assertion of jurisdiction by that court in such an 4 action. 5 13. Integrated Agreement. This Settlement Agreement contains the entire 6 understanding and agreement among POSTELL, WHITE, and EL SEGUNDO, and the terms 7 and conditions contained herein shall inure to the benefit of, and be binding upon, the heirs, 8 representatives, successors and assigns of POSTELL, WHITE, and EL SEGUNDO. No other 9 representations, covenants, undertakings, or other prior or contemporaneous agreements or 10 communications, oral or written, respecting such matters, which are not specifically 11 incorporated herein, shall be deemed in any way to exist or bind any of the parties hereto, or 12 are relevant or admissible for purposes of determining the meaning of any provisions herein in 13 any litigation or any other proceeding. POSTELL, WHITE, and EL SEGUNDO acknowledge 14 that this Settlement Agreement has been executed without reliance upon any such promise, 15 representation, or warranty not contained herein. 16 14. Modification. No supplement, modification or amendment of this Settlement 17 Agreement shall be binding unless executed in writing by POSTELL, WHITE, and EL 18 SEGUNDO. No waiver of any of the provisions of this Settlement Agreement shall be deemed 19 to constitute a waiver of any other provision whether or not similar, nor shall waiver constitute 20 a continuing waiver. No waiver shall be binding unless executed in writing by the party 21 making the waiver. 22 15. Binding on Successors. This Settlement Agreement and the covenants and 23 conditions contained herein shall obligate, bind, extend to and inure to the benefit of 24 POSTELL, WHITE, and EL SEGUNDO and each of their respective successors in interest, 25 including, but not limited to, their administrators, executors, owners, partners, officers, 26 directors, shareholders, legal representatives, assignees, attorneys, successors, and agents or 27 employees of POSTELL, WHITE, or EL SEGUNDO. No person or entity is intended to be a 28 -5- Settlement Agreement and Release 35 7 •s 1 third party beneficiary of the provisions of this Settlement Agreement for purposes of any civil, 2 criminal, or administrative action. 3 16. Representation of CLAIMANTS. POSTELL and WHITE affirmatively 4 represent that they have been represented by the law offices of Brent H. Merritt of Beverly 5 Hills, California, attorneys at law of CLAIMANTS' own choosing. CLAIMANTS, and each 6 of them, have read this Settlement Agreement, and have had the terms used herein and the 7 consequences thereof explained by their above -named attorney of choice. 8 17. Representation of EL SEGUNDO. EL SEGUNDO affirmatively represents 9 that it has been represented by the law offices of Jones & Mayer, of Fullerton, California and 10 of San Marino, California, attorneys at law of EL SEGUNDO's own choosing. EL 11 SEGUNDO has read this Settlement Agreement, and has had the terms used herein and the 12 consequences thereof explained by its above -named attorney of choice. 13 18. Construction. This Settlement Agreement shall not be construed against the 14 party preparing it, but shall be construed as if CLAIMANTS and EL SEGUNDO jointly 15 prepared this Settlement Agreement. Any uncertainty and ambiguity shall not be interpreted 16 against any one party. This Settlement Agreement is to be performed in California and it is to 17 be interpreted, enforced, and governed by and under the laws of the State of California. 18 Language in all parts of the Settlement Agreement shall be in all cases construed as a whole 19 according to its very meaning. 20 19. Attorney's Fees and Interest. Except as provided herein, all of 21 CLAIMANTS' attorneys' fees and costs incurred through the date of this Settlement 22 Agreement shall be borne by CLAIMANTS, and all of EL SEGUNDO's attorneys' fees and 23 costs incurred through the date of this Settlement Agreement shall be borne by EL SEGUNDO. 24 POSTELL, WHITE, and EL SEGUNDO agree to waive any claim, or claims, against any of 25 the other parties to this Settlement Agreement for the reimbursement of all, or any portion of 26 said fees or costs. All liens, whether for attorneys' fees or medical services provided on behalf 27 of POSTELL or WHITE shall be born by said party. Should suit be brought to enforce or 28 interpret any part of this Settlement Agreement, the prevailing party shall be entitled to -6- Settlement Agreement and Release I recover, as an element of costs of suit and not as damages, reasonable attorneys' fees to be 2 fixed in the discretion of the court. Prevailing party shall be the party entitled to recover its 3 costs of suit, regardless of whether such suit proceeds to final judgment. The party not entitled 4 to recover its costs shall not be entitled to recover attorneys' fees. No sum for attorneys' fees 5 shall be counted and calculated in the amount of a judgment for purposes of determining the 6 extent to which a party is entitled to recover costs for attorneys' fees. The prevailing party 7 shall be entitled to recover interest on damages recovered at the rate of 10% per annum relating 8 to a prospective breach of this Agreement. 9 20. Gender Neutral. Whenever in this Settlement Agreement the context may so 10 require, the masculine, feminine and neuter genders shall be each deemed to include the other 11 and the singular and the plural shall refer to one another. 12 21. Counterparts. This Settlement Agreement may be executed in duplicate 13 counterparts, each of which shall be deemed an original and all of which shall constitute an 14 agreement to be effective as of the date of signing. Further, signatures transmitted and 15 memorialized by facsimile shall be deemed to have the same weight and effect as an original 16 signature. CLAIMANTS and EL SEGUNDO may agree that an original signature will be 17 substituted at some later time for any facsimile signature. 18 22. Captions and Interpretations. The paragraph titles and captions are inserted 19 in this Settlement Agreement as a matter of convenience. As such, the paragraph titles or 20 captions are not intended to define or describe the scope of any provision. 21 /// 22 /// 23 HI 24 /// 25 /// 26 /// 27 HI 28 HI -7- Settlement Agreement and Release 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 . 23. Invalid Clause May Be Severed. If any provision, clause, or part of the Settlement Agreement is adjudged illegal, invalid or unenforceable, the balance of this Settlement Agreement shall remain in full force and effect. I have carefully read and fully understand, and hereby execute, this Settlement Agreement. DATE: JanuaryW, 2006 DATE: January, 2006 I APPROVED AS BRO1 T H. MERRITT Attorney for CLAIMANTS KEITH POSTELL and ROGER WHITE EIThPOSTELL i • i . WHITE I have carefully read and fully understand, and hereby execute is Settlement Agreement. DATE: JanuaryZ6, 2006 JEF�,`EWART, CITY MANAGER CIT � F EL SEGUNDO APPROVED AS TO FORM: � It./ Attornev • • �• -8- Settlement Agreement and Release