CONTRACT 2809 Settlement Agreement;h 2809,
1 "SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS"
2 This Settlement Agreement and Release of All Claims ( "Settlement Agreement ") is
3
entered into as May 4!,'2000 by and among Plaintiffs LEONARD ROSCITTO and
4
FLAHERTY ROSCITTO ( "PLAINTIFFS "), and Defendants CITY OF EL SEGUNDO and REX
5
6 FOWLER (collectively "DEFENDANTS ") and is made with reference to the following
7 definitions and recitals:
8 RECITALS
9 A. An action entitled Leonard Roscitto and Flaherty Roscitto v. City of El Segundo,
10
El Segundo Police Department, and Rex Fowler, Los Angeles Superior Court case number YC
11
034524 was filed by PLAINTIFFS against DEFENDANTS requesting relief under various
12
13 theories, including: (1) Violation of Civil Rights; (2) Battery; (3) Assault; (4) Intentional
14 Infliction of Emotional Distress; (5) Negligence; and (6) Negligent Infliction of Emotional
15 Distress (hereinafter the "Action "). DEFENDANTS have denied liability with respect to
16 PLAINTIFFS' allegations. A jury trial in the above - referenced matter commenced on April 17,
17 2000, and the jury reached a verdict on April 24, 2000. Judgment was entered in favor of
18
DEFENDANTS on May 1, 2000 ( "JUDGMENT "), and DEFENDANTS filed a Notice of Entry
19
20 of Judgment on May 8, 2000.
21 B. As between PLAINTIFFS and DEFENDANTS (collectively, the "PARTIES "),
22 the PARTIES desire to resolve all of the issues raised in the Action and enter into this Settlement
23 Agreement.
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#47257
Settlement Agreement and Release
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AGREEMENT:
In consideration of the covenants herein contained, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the PARTIES hereto
hereby agree as follows:
1. PLAINTIFFS both agree to forego pursuing any post -trial remedies, including but
not limited to filing a notice of appeal, or commencing an appeal in any fashion, arising out of
the jury trial of this ACTION and/or JUDGMENT.
2. DE1 Ll�VLAvTS agree to waive Their cosis to which they are entitled to recover
pursuant to the JUDGMENT.
3. Each party hereto acknowledges and agrees that this is a compromise settlement
of the hereinabove mentioned dispute, which is not in any respect to be deemed, construed or
treated as an admission or a concession of any liability whatsoever by any party hereto, including
any public entity, person, firm, partnership, or corporation for any purpose whatsoever.
4. Each party has made such investigation of the facts pertaining to this Settlement
Agreement and all matters pertaining hereto as they have determined necessary. This Settlement
Agreement is intended to be final and binding between the PARTIES hereto, regardless of any
claims or misrepresentations, promises made without the intention of performing them, mistakes
of fact or law, or any other circumstances whatsoever, and under no circumstances shall any
party be entitled to set aside this Settlement Agreement, either in whole or in part. In entering
into this Settlement Agreement, each party assumes the risk of any misrepresentation,
concealment or mistake, whether or not any party should subsequently discover or assert for any
reason that any fact relied upon by such a party in entering into these releases was untrue, or that
any fact was concealed from any party hereto, or that such party's understanding of the facts or
of the law was incorrect or incomplete.
2 F•'' L" � f 3 1
1 5. Excepting only the obligations imposed by this Settlement Agreement,
2 PLAINTIFFS, for themselves and all of their predecessors, successors, assigns, representatives,
3
attorneys or agents, do hereby fully and forever remise, release and discharge DEFENDANTS
4
and all of their predecessors, successors, assigns, representatives, attorneys or agents of and from
5
6 any and all actions, claims, demands, rights, damages, costs, expenses, fees, and compensation of
7 any nature whatsoever, which PLAINTIFFS have or may hereafter accrue, including without
8 limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury,
9 relating to, or in any 'way, directly or indirectly, involving or arising out of any facts or
10
circumstances which are alleged or could have been alleged in the Action.
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6. It is the intention and understanding of the PARTIES hereto, in executing this
12
13 instrument, that it shall be effective as a full and final accord and satisfaction and compromise
14 and release, as between them and them only, of each and every settled or released matter. In
15 furtherance of this intention, PLAINTIFFS acknowledge that they are familiar with Section 1542
16 of the Civil Code of the State of California which provides as follows:
17 "A general release does not extend to claims which the creditor does not know or
18
suspects to exist in his favor at the time of executing the release, which, if known
19
20 by him, must have materially affected his settlement with the debtor."
21 Excepting only the obligations imposed by this Settlement Agreement, PLAINTIFFS
22 hereby expressly waive or relinquish any right or benefit which they have, or might have, under
23 Section 1542 of the Civil Code of the State of California and all other similar provisions of law
24 of other jurisdictions to the fullest extent allowed by law. In connection with such compromise,
25
waiver and relinquishment, PLAINTIFFS acknowledge that they are aware that they may
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hereafter discover facts in addition to or different from those which they now know or believe to
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28 be true with respect to the subject matter of this instrument, but that, except as is otherwise
#47257
2Rri 9 .
1 provided herein, it is their intention hereby to fully, finally and forever settle and release all
2 matters, disputes and differences, known or unknown, suspected or unsuspected, which do now
3
exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release
4
actually given herein shall be and remain in effect as a full and complete general release,
5
6 notwithstanding the discovery or existence of any such additional or different facts.
7
8 OTHER TERMS AND PROVISIONS
9 1. Governing Law. This Settlement Agreement shall be governed and interpreted
10 in accordance with the laws of the State of California. Each party hereto agrees that the laws of
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the State of California shall apply and that any action brought hereunder shall be subject to the
12
laws and statutes of the State of California. The PARTIES expressly agree that any disputes,
13
14 disagreements or actions shall be venued with the Superior Court of Los Angeles County, State
15 of California. The PARTIES stipulate that they are subject to the jurisdiction of the Los Angeles
16 Superior Court and hereby expressly waive any defense to assertion of jurisdiction by that court
17 in such an action.
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2. Integrated Agreement. This Settlement Agreement contains the entire
19
understanding and agreement between the PARTIES, and the terms and conditions contained
20
21 herein shall inure to the benefit of, and be binding upon, the heirs, representatives, successors
22 and assigns of each of the PARTIES hereto. No other representations, covenants, undertakings,
23 or other prior or contemporaneous agreements, oral or written, respecting such matters, which are
24 not specifically incorporated herein, shall be deemed in any way to exist or bind any of the
25
PARTIES hereto. The PARTIES hereto acknowledge that this Agreement has been executed
26
without reliance upon any such promise, representation, or warranty not contained herein.
27
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1 3. Modification. No supplement, modification or amendment of this Settlement
2 Agreement shall be binding unless executed in writing by all of the PARTIES. No wavier of any
3
of the provisions of this Settlement Agreement shall be deemed to constitute a waiver of any
4
other provision whether or not similar, nor shall waiver constitute a continuing waiver. No
5
6 waiver shall be binding unless executed in writing by the PARTIES making the waiver.
7 4. Binding on Successors. This Settlement Agreement and the covenants and
8 conditions contained herein shall obligate, bind, extend to and inure to the benefit of the
9 PARTIES in each of their respective successors in interest, including, but not limited to, their
10
administrators, executors, owners, partners, officers, directors, shareholders, legal
11
representatives, assignees, attorneys, successors, and agents or employees of the PARTIES
12
hereto.
13
14 5. Construction. This Settlement Agreement shall not be constructed against the
15 party preparing it, but shall be construed as if all PARTIES jointly prepared this Settlement
16 Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. This
17 Settlement Agreement is to be performed in California and it is to be interpreted, enforced, and
18
governed by and under the laws of the State of California. Language in all parts of the
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Settlement Agreement shall be in all cases construed as a whole according to its very meaning.
20
21 6. Attorney's Fees and interest. Except as provided herein, ail attorneys' fees and
22 costs incurred through the date of this Settlement Agreement shall be borne by the respective
23 PARTIES and each party agrees to waive any claim, or claims, against any of the other
24 PARTIES for the reimbursement of all, or any portion of said fees or costs. Should suit be
25
brought to enforce or interpret any part of this Settlement Agreement, the prevailing party shall
26
be entitled to recover, as an element of costs of suit and not as damages, reasonable attorneys'
27
28 fees to be fixed in the discretion of the court. Prevailing party shall be the party entitled to
#47257
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1 recover its costs of suit, regardless of whether such suit proceeds to final judgment. The party
2 not entitled to recover its costs shall not be entitled to recover attorneys' fees. No sum for
3
attorneys' fees shall be counted and calculated in the amount of a judgment for purposes of
4
determining the extent to which a party is entitled to recover costs for attorneys' fees. The
5
6 prevailing party shall be entitled to recover interest on damages recovered at the rate of 10% per
7 annum relating to a prospective breach of this Agreement.
8 7. Gender Neutral. Whenever in this Settlement Agreement the context may so
9 require, the masculine, feminine and neuter genders shall be each deemed to include the other
10
and the singular and the plural shall refer to one another.
11
8. Counterparts. This Settlement Agreement may be executed in duplicate
12
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. The PARTIES may agree that an original signature will be substituted at some later
17
time for any facsimile signature.
18
9. Captions and Interpretations. The paragraph titles and captions are inserted in
19
20 this Settlement Agreement as a matter of convenience. As such, the paragraph titles or captions
21 are not intended to define or describe the scope of any provision.
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10. 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, thi Settlement
Agreement.
ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
FLAHERTY ROSCITTO
APPROVED,KS TO FORM:
By:
SCOTT SMORE
Attorney for PLAINTIFFS
LEONARD ROSCITTO AND
FLAHERTY ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
APPROVED AS TO FORM:
By:
MARK D. HENSLEY,
CITY ATTORNEY,
CITY OF EL SEGUNDO
MARY STRENN, CITY MANAGER
CITY OF EL SEGUNDO
1 "SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS"
2 This Settlement Agreement and Release of All Claims ( "Settlement Agreement ") is
3
entered into as y, 2000 by and among Plaintiffs LEONARD ROSCITTO and
4
FLAHERTY ROSCITTO ( "PLAINTIFFS "), and Defendants CITY OF EL SEGUNDO and REX
5
6 FOWLER (collectively "DEFENDANTS ") and is made with reference to the following
7 definitions and recitals:
8 RECITALS
9 A. An action entitled Leonard Roscitto and Flaherty Roscitto v. City of El Segundo,
10
El Segundo Police Department, and Rex Fowler, Los Angeles Superior Court case number YC
11
034524 was filed by PLAINTIFFS against DEFENDANTS requesting relief under various
12
13 theories, including: (1) Violation of Civil Rights; (2) Battery; (3) Assault; (4) Intentional
14 Infliction of Emotional Distress; (5) Negligence; and (6) Negligent Infliction of Emotional
15 Distress (hereinafter the "Action "). DEFENDANTS have denied liability with respect to
16 PLAINTIFFS' allegations. A jury trial in the above - referenced matter commenced on April 17,
17 2000, and the jury reached a verdict on April 24, 2000. Judgment was entered in favor of
18
DEFENDANTS on May 1, 2000 ( "JUDGMENT "), and DEFENDANTS filed a Notice of Entry
19
20 of Judgment on May 8; 2000.
21 B. As between PLAINTIFFS and DEFENDANTS (collectively, the "PARTIES "),
22 the PARTIES desire to resolve all of the issues raised in the Action and enter into this Settlement
23 Agreement.
24
25
26
27
28
#47257
Settlement Agreement and Release
1 AGREEMENT:
2 In consideration of the covenants herein contained, and for good and valuable
3
consideration, the receipt and adequacy of which is hereby acknowledged, the PARTIES hereto
4
hereby agree as follows:
5
6 1. PLAINTIFFS both agree to forego pursuing any post -trial remedies, including but
7 not limited to filing a notice of appeal, or commencing an appeal in any fashion, arising out of
8 the jury trial of this ACTION and/or JUDGMENT.
9 2. DEFENDANTS agree to waive their costs to which they are entitled to recover
10
pursuant to the JUDGMENT.
11
3. Each party hereto acknowledges and agrees that this is a compromise settlement
12
13 of the hereinabove mentioned dispute, which is not in any respect to be deemed, construed or
14 treated as an admission or a concession of any liability whatsoever by any party hereto, including
15 any public entity, person, firm, partnership, or corporation for any purpose whatsoever.
16 4. Each party has made such investigation of the facts pertaining to this Settlement
17 Agreement and all matters pertaining hereto as they have determined necessary. This Settlement
18
Agreement is intended to be final and binding between the PARTIES hereto, regardless of any
19
claims or misrepresentations, promises made without the intention of performing them, mistakes
20
21 of fact or law, or any other circumstances whatsoever, and under no circumstances shall any
22 party be entitled to set aside this Settlement Agreement, either in whole or in part. In entering
23 into this Settlement Agreement, each party assumes the risk of any misrepresentation,
24 concealment or mistake, whether or not any party should subsequently discover or assert for any
25
reason that any fact relied upon by such a party in entering into these releases was untrue, or that
26
any fact was concealed from any party hereto, or that such party's understanding of the facts or
27
28 of the law was incorrect or incomplete.
#47257
E"1
1 5. Excepting only the obligations imposed by this Settlement Agreement,
2 PLAINTIFFS, for themselves and all of their predecessors, successors, assigns, representatives,
3
attorneys or agents, do hereby fully and forever remise, release and discharge DEFENDANTS
4
and all of their predecessors, successors, assigns, representatives, attorneys or agents of and from
5
6 any and all actions, claims, demands, rights, damages, costs, expenses, fees, and compensation of
7 any nature whatsoever, which PLAINTIFFS have or may hereafter accrue, including without
8 limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury,
9 relating to, or in any way, directly or indirectly, involving or arising out of any facts or
10
circumstances which are alleged or could have been alleged in the Action.
11
6. It is the intention and understanding of the PARTIES hereto, in executing this
12
13 instrument, that it shall be effective as a full and final accord and satisfaction and compromise
14 and release, as between them and them only, of each and every settled or released matter. In
15 furtherance of this intention, PLAINTIFFS acknowledge that they are familiar with Section 1542
16 of the Civil Code of the State of California which provides as follows:
17 "A general release does not extend to claims which the creditor does not know or
18
suspects to exist in his favor at the time of executing the release, which, if known
19
20 by him, must have materially affected his settlement with the debtor."
21 Excepting only the obligations imposed by this Settlement Agreement, PLAINTIFFS
22 hereby expressly waive or relinquish any right or benefit which they have, or might have, under
23 Section 1542 of the Civil Code of the State of California and all other similar provisions of law
24 of other jurisdictions to the fullest extent allowed by law. In connection with such compromise,
25
waiver and relinquishment, PLAINTIFFS acknowledge that they are aware that they may
26
hereafter discover facts in addition to or different from those which they now know or believe to
27
28 be true with respect to the subject matter of this instrument, but that, except as is otherwise
#47257
1 provided herein, it is their intention hereby to fully, finally and forever settle and release all
2 matters, disputes and differences, known or unknown, suspected or unsuspected, which do now
3
exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release
4
actually given herein shall be and remain in effect as a full and complete general release,
5
6 notwithstanding the discovery or existence of any such additional or different facts.
7
8 OTHER TERMS AND PROVISIONS
9 1. Governing Law. This Settlement Agreement shall be governed and interpreted
10
in accordance with the laws of the State of California. Each party hereto agrees that the laws of
11
the State of California shall apply and that any action brought hereunder shall be subject to the
12
laws and statutes of the State of California. The PARTIES expressly agree that any disputes,
13
14 disagreements or actions shall be venued with the Superior Court of Los Angeles County, State
15 of California. The PARTIES stipulate that they are subject to the jurisdiction of the Los Angeles
16 Superior Court and hereby expressly waive any defense to assertion of jurisdiction by that court
17
in such an action.
18
2. Integrated Agreement. This Settlement Agreement contains the entire
19
understanding and agreement between the PARTIES, and the terms and conditions contained
20
21 herein shall inure to the benefit of, and be binding upon, the heirs, representatives, successors
22 and assigns of each of the PARTIES hereto. No other representations, covenants, undertakings,
23 or other prior or contemporaneous agreements, oral or written, respecting such matters, which are
24 not specifically incorporated herein, shall be deemed in any way to exist or bind any of the
25
PARTIES hereto. The PARTIES hereto acknowledge that this Agreement has been executed
26
without reliance upon any such promise, representation, or warranty not contained herein.
27
28
#47257
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1 3. Modification. No supplement, modification or amendment of this Settlement
2 Agreement shall be binding unless executed in writing by all of the PARTIES. No wavier of any
3
of the provisions of this Settlement Agreement shall be deemed to constitute a waiver of any
4
other provision whether or not similar, nor shall waiver constitute a continuing waiver. No
5
6 waiver shall be binding unless executed in writing by the PARTIES making the waiver.
7 4. Binding on Successors. This Settlement Agreement and the covenants and
8 conditions contained herein shall obligate, bind, extend to and inure to the benefit of the
9 PARTIES in each of their respective successors in interest, including, but not limited to, their
10
administrators, executors, owners, partners, officers, directors, shareholders, legal
11
representatives, assignees, attorneys, successors, and agents or employees of the PARTIES
12
hereto.
13
14 5. Construction. This Settlement Agreement shall not be constructed against the
15 party preparing it, but shall be construed as if all PARTIES jointly prepared this Settlement
16 Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. This
17 Settlement Agreement is to be performed in California and it is to be interpreted, enforced, and
18
governed by and under the laws of the State of California. Language in all parts of the
19
Settlement Agreement shall be in all cases construed as a whole according to its very meaning.
20
21 6. Attorney's Fees and Interest. Except as provided herein, all attorneys' fees and
22 costs incurred through the date of this Settlement Agreement shall be borne by the respective
23 PARTIES and each party agrees to waive any claim, or claims, against any of the other
24 PARTIES for the reimbursement of all, or any portion of said fees or costs. Should suit be
25
brought to enforce or interpret any part of this Settlement Agreement, the prevailing party shall
26
be entitled to recover, as an element of costs of suit and not as damages, reasonable attorneys'
27
2 8 fees to be fixed in the discretion of the court. Prevailing party shall be the party entitled to
#47257
2
1 recover its costs of suit, regardless of whether such suit proceeds to final judgment. The party
2 not entitled to recover its costs shall not be entitled to recover attorneys' fees. No sum for
3
attorneys' fees shall be counted and calculated in the amount of a judgment for purposes of
4
determining the extent to which a party is entitled to recover costs for attorneys' fees. The
5
6 prevailing party shall be entitled to recover interest on damages recovered at the rate of 10% per
7 annum relating to a prospective breach of this Agreement.
8 7. Gender Neutral. Whenever in this Settlement Agreement the context may so
9 require, the masculine, feminine and neuter genders shall be each deemed to include the other
10
and the singular and the plural shall refer to one another.
11
8. Counterparts. This Settlement Agreement may be executed in duplicate
12
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. The PARTIES may agree that an original signature will be substituted at some later
17
time for any facsimile signature.
18
9. Captions and Interpretations. The paragraph titles and captions are inserted in
19
20 this Settlement Agreement as a matter of convenience. As such, the paragraph titles or captions
21 are not intended to define or describe the scope of any provision.
22
23 ///
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10. 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.
LEONARD ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
.e
FL ERTY SC TTO
APPROVEIVAS TO FORM:
By:
SC TT DINSMORE
Attorney for PLAINTIFFS
LEONARD ROSCITTO AND
FLAHERTY ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
APPROVED AS TO FORM:
Bv:
MARK D. HENSLEY,
CITY ATTORNEY,
CITY OF EL SEGUNDO
MARY STRENN, CITY MANAGER
CITY OF EL SEGUNDO
a
2pr- '7�
1 "SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS"
2 This Settlement Agreement and Release of All Claims ( "Settlement Agreement ") is
3
entered into as May , 2000 by and among Plaintiffs LEONARD ROSCITTO and
4
FLAHERTY ROSCITTO ( "PLAINTIFFS "), and Defendants CITY OF EL SEGUNDO and REX
5
6 FOWLER (collectively "DEFENDANTS ") and is made with reference to the following
7 definitions and recitals:
8 RECITALS
9 A. An action entitled Leonard Roscitto and Flaherty Roscitto v. City of El Segundo,
10
El Segundo Police Department, and Rex Fowler, Los Angeles Superior Court case number YC
11
034524 was filed by PLAINTIFFS against DEFENDANTS requesting relief under various
12
13 theories, including: (1) Violation of Civil Rights; (2) Battery; (3) Assault; (4) Intentional
14 Infliction of Emotional Distress; (5) Negligence; and (6) Negligent Infliction of Emotional
15 Distress (hereinafter the "Action "). DEFENDANTS have denied liability with respect to
16 PLAINTIFFS' allegations. A jury trial in the above - referenced matter commenced on April 17,
17 2000, and the jury reached a verdict on April 24, 2000. Judgment was entered in favor of
18
DEFENDANTS on May 1, 2000 ( "JUDGMENT "), and DEFENDANTS filed a Notice of Entry
19
of Judgment on May 8, 2000.
20
21 B. As between PLAINTIFFS and DEFENDANTS (collectively, the "PARTIES "),
22 the PARTIES desire to resolve all of the issues raised in the Action and enter into this Settlement
23 Agreement.
24
25
26
27
28
#47257 — 1
Settlement Agreement and Release
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#47257
AGREEMENT:
In consideration of the covenants herein contained, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the PARTIES hereto
hereby agree as follows:
I. PLAINTIFFS both agree to forego pursuing any post -trial remedies, including but
not limited to filing a notice of appeal, or commencing an appeal in any fashion, arising out of
the jury trial of this ACTION and /or JUDGMENT.
2. DEFENDANTS agree to waive their costs to which they are entitled to recover
pursuant to the JUDGMENT.
3. Each party hereto acknowledges and agrees that this is a compromise settlement
of the hereinabove mentioned dispute, which is not in any respect to be deemed, construed or
treated as an admission or a concession of any liability whatsoever by any party hereto, including
any public entity, person, firm, partnership, or corporation for any purpose whatsoever.
4. Each party has made such investigation of the facts pertaining to this Settlement
Agreement and all matters pertaining hereto as they have determined necessary. This Settlement
Agreement is intended to be final and binding between the PARTIES hereto, regardless of any
claims or misrepresentations, promises made without the intention of performing them, mistakes
of fact or law, or any other circumstances whatsoever, and under no circumstances shall any
party be entitled to set aside this Settlement Agreement, either in whole or in part. In entering
into this Settlement Agreement, each party assumes the risk of any misrepresentation,
concealment or mistake, whether or not any party should subsequently discover or assert for any
reason that any fact relied upon by such a party in entering into these releases was untrue, or that
any fact was concealed from any party hereto, or that such party's understanding of the facts or
of the law was incorrect or incomplete.
1 5. Excepting only the obligations imposed by this Settlement Agreement,
2 PLAINTIFFS, for themselves and all of their predecessors, successors, assigns, representatives,
3
attorneys or agents, do hereby fully and forever remise, release and discharge DEFENDANTS
4
and all of their predecessors, successors, assigns, representatives, attorneys or agents of and from
5
6 any and all actions, claims, demands, rights, damages, costs, expenses, fees, and compensation of
7 any nature whatsoever, which PLAINTIFFS have or may hereafter accrue, including without
8 limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury,
9 relating to, or in any way, directly or indirectly, involving or arising out of any facts or
10
circumstances which are alleged or could have been alleged in the Action.
11
6. It is the intention and understanding of the PARTIES hereto, in executing this
12
13 instrument, that it shall be effective as a full and final accord and satisfaction and compromise
14 and release, as between them and them only, of each and every settled or released matter. In
15 furtherance of this intention, PLAINTIFFS acknowledge that they are familiar with Section 1542
16 of the Civil Code of the State of California which provides as follows:
17 "A general release does not extend to claims which the creditor does not know or
18
suspects to exist in his favor at the time of executing the release, which, if known
19
by him, must have materially affected his settlement with the debtor."
20
21 Excepting only the obligations imposed by this Settlement Agreement, PLAINTIFFS
22 hereby expressly waive or relinquish any right or benefit which they have, or might have, under
23 Section 1542 of the Civil Code of the State of California and all other similar provisions of law
24 of other jurisdictions to the fullest extent allowed by law. In connection with such compromise,
25
waiver and relinquishment, PLAINTIFFS acknowledge that they are aware that they may
26
hereafter discover facts in addition to or different from those which they now know or believe to
27
28 be true with respect to the subject matter of this instrument, but that, except as is otherwise
#47257
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#47257
provided herein, it is their intention hereby to fully, finally and forever settle and release all
matters, disputes and differences, known or unknown, suspected or unsuspected, which do now
exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release
actually given herein shall be and remain in effect as a full and complete general release,
notwithstanding the discovery or existence of any such additional or different facts.
OTHER TERMS AND PROVISIONS
I. Governing Law. This Settlement Agreement shall be governed and interpreted
in accordance with the laws of the State of California. Each party hereto agrees that the laws of
the State of California shall apply and that any action brought hereunder shall be subject to the
laws and statutes of the State of California. The PARTIES expressly agree that any disputes,
disagreements or actions shall be venued with the Superior Court of Los Angeles County, State
of California. The PARTIES stipulate that they are subject to the jurisdiction of the Los Angeles
Superior Court and hereby expressly waive any defense to assertion of jurisdiction by that court
in such an action.
2. Integrated Agreement. This Settlement Agreement contains the entire
understanding and agreement between the PARTIES, and the terms and conditions contained
herein shall inure to the benefit of, and be binding upon, the heirs, representatives, successors
and assigns of each of the PARTIES hereto. No other representations, covenants, undertakings,
or other prior or contemporaneous agreements, oral or written, respecting such matters, which are
not specifically incorporated herein, shall be deemed in any way to exist or bind any of the
PARTIES hereto. The PARTIES hereto acknowledge that this Agreement has been executed
without reliance upon any such promise, representation, or warranty not contained herein.
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1 3. Modification. No supplement, modification or amendment of this Settlement
2 Agreement shall be binding unless executed in writing by all of the PARTIES. No wavier of any
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of the provisions of this Settlement Agreement shall be deemed to constitute a waiver of any
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other provision whether or not similar, nor shall waiver constitute a continuing waiver. No
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6 waiver shall be binding unless executed in writing by the PARTIES making the waiver.
7 4. Binding on Successors. This Settlement Agreement and the covenants and
8 conditions contained herein shall obligate, bind, extend to and inure to the benefit of the
9 PARTIES in each of their respective successors in interest, including, but not limited to, their
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administrators, executors, owners, partners, officers, directors, shareholders, legal
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representatives, assignees, attorneys, successors, and agents or employees of the PARTIES
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hereto.
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14 5. Construction. This Settlement Agreement shall not be constructed against the
15 party preparing it, but shall be construed as if all PARTIES jointly prepared this Settlement
16 Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. This
17 Settlement Agreement is to be performed in California and it is to be interpreted, enforced, and
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governed by and under the laws of the State of California. Language in all parts of the
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20 Settlement Agreement shall be in all cases construed as a whole according to its very meaning.
21 6. Attorney's Fees and Interest. Except as provided herein, all attorneys' fees and
22 costs incurred through the date of this Settlement Agreement shall be borne by the respective
23 PARTIES and each party agrees to waive any claim, or claims, against any of the other
24 PARTIES for the reimbursement of all, or any portion of said fees or costs. Should suit be
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brought to enforce or interpret any part of this Settlement Agreement, the prevailing party shall
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be entitled to recover, as an element of costs of suit and not as damages, reasonable attorneys'
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28 fees to be fixed in the discretion of the court. Prevailing party shall be the party entitled to
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1 recover its costs of suit, regardless of whether such suit proceeds to final judgment. The party
2 not entitled to recover its costs shall not be entitled to recover attorneys' fees. No sum for
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attorneys' fees shall be counted and calculated in the amount of a judgment for purposes of
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determining the extent to which a party is entitled to recover costs for attorneys' fees. The
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6 prevailing party shall be entitled to recover interest on damages recovered at the rate of 10% per
7 annum relating to a prospective breach of this Agreement.
8 7. Gender Neutral. Whenever in this Settlement Agreement the context may so
9 require, the masculine, feminine and neuter genders shall be each deemed to include the other
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and the singular and the plural shall refer to one another.
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8. Counterparts. This Settlement Agreement may be executed in duplicate
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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. The PARTIES may agree that an original signature will be substituted at some later
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time for any facsimile signature.
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9. Captions and Interpretations. The paragraph titles and captions are inserted in
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this Settlement Agreement as a matter of convenience. As such, the paragraph titles or captions
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21 are not intended to define or describe the scope of any provision.
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10. 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.
LEONARD ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
FLAHERTY ROSCITTO
APPROVED AS TO FORM:
Rv:
SCOTT DINSMORE
Attorney for PLAINTIFFS
LEONARD ROSCITTO AND
FLAHERTY ROSCITTO
I have carefully read and fully understand, and hereby execute, this Settlement
Agreement.
4 ARY NN, CITY MANAGER
CITY F EL SEGUNDO
APPROVED AS TO FORM:
MARK . HENSLEY,
CITY ATTORNEY,
CITY OF EL SEGUNDO