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HomeMy WebLinkAbout1993-024 Burke, Williams & Sorenson 141111110 LAW OFFICES BURKE, WILLIAMS & SORENSEN 611 WEST SIXTH STREET, SUITE 2500 LOS ANGELES, CALIFORNIA 90017 (213) 236-0600 MARTIN J.BURKE' ROBERT V.WADDEN VENTURA COUNTY OFFICE JAMES T.BRADSHAW,JR.' KIM E.MCNALLY MARK C.ALLEN,JR` MARYANN LINK GOOOKINO 2310 PONDEROSA DRIVE MARTIN L.BURKE' TIMOTHY B.MCOSKER TE LECOPIER: (213) 236-2700 SUITE I CARL K.NEWTON' RITA J.MUNSON CAMARILLO.CALIFORNIA 93010 J.ROBERT FLANORICK' STEVEN J.DAWSON NORMAN E.GAARt TERRY P.KAUFMANN HARRY C.WILLIAMS (805)987-3468 EDWARD M.FOX' STEPHEN R.ONSTOT DENNIS P.BURKE' JOHN E.CAVANAUGH (1912-1967) LELAND C.OOLLEY' MARK D HENSLEY CO LIN LENNARD PETER D.TREMBLAY ROYAL M.SORENSEN ORANGE COUNTY OFFICE NEIL F.YEAG ER' JOSEPH P.BUCHMAN (1914-1983) 3200 BRISTOL STREET BRIAN A.PIERIK' GREGORY T.DION CHARLES M.CALDERON' ANTHONY P CONDOTTI SUITE 640 PETER M.THORSON' AUDREY HO COSTA MESA,CALIFORNIA 92626 JERRY M.PATTERSONKAREN J.SCHULOT (714)545-5559 HAROLD A.BRIDGES' JANET S.GARMS$ 11 CHERYL J. E' PAUL C.ANDERSON A 5 t 4 , 1993 RAYMOND J..FUENTES' BRENDA L.DIEDERIC HS u`Jg 4 BARRY 5.GLASER TIMOTHY V.P.GALLAGHER i��. BURKE, WILLIAMS, SORENSEN & GAAR VIRGINIA R.PE50LA JOHN J.WELSH 5.PAUL BRUGUERA MARY JO SHELTON-DUTCHER '1��C]j '1(�(w�, 'j Mtn 11CJ LIGHT. PLAZA B.DEREK STRAATSMA JEFFREY KIGHTLINGER n SUITE 220 4� V L� V y 7300 COLLEGE BOULEVARD DON G.KIRCHER PENNY PAXTON U MICHELE R.VADON TIMOTHY D.CREMIN SCOTT F.FIELD GREGORY G.DIAZ OVERLAND PARK, KANSAS 66210 MARY REDU5 GAYLE' KENNETH D.ROZELL (913)339-6200 RUFUS C.YOUNG.JR. LAURIE E.SHERWOOD �STEVEN KARLTON HOP ELIZABETH M.CALCIANO JUDITH A ENRIGHT TERESA F.ELCONIN WRITERS DIRECT DIAL KATHRYN P PETERS° ANNE T.PFEFFER THOMAS C.WOOD CAROL R.VICTOR WILLIAM MARK LEVINSON PAULA L.DIONNE LISA E.KRANITZ CITY OF ATASCADERO CITY CLERK'S OFFICE 'PROFE55IONAL CORPORATION OUR FILE NO. TA PROFESSIONAL ASSOCIATION ADMITTED IN KANSAS&MISSOURI *AQ MITTED IN CALIFORNIA,KANSAS&MISSOURI *ADMITTED IN CALIFORNIA&WASHINGTON,D.C. -ADMITTED IN KANSAS Lee Dayka, City Clerk CITY OF ATASCADERO 6500 Palma Avenue Atascadero, California 93422 Re: Indemnity Agreement Dear Lee: Please find enclosed, for signatures, the Indemnity Agreement relating to the Clodfelter case. Art has approved this Agreement as to form. The individuals, employees/officers have also reviewed it and, I understand, are comfortable with its terms. At your convenience, if you would circularize the enclosure for signature I would appreciate it. Once it has been signed you should keep the original and send a copy to our office as well as copies to the individuals involved. Should you have any questions concerning this, please do not hesitate to call. Best Personal Regards, J. Ro ert landrick of BURKE, WILLIAMS & SORENSEN Enclosure CC: Art Montandon, City Attorney 64431.1 *moo10" CONTRACT NO. 93024 AGREEMENT THIS AGREEMENT, made and entered into by and between the CITY OF ATASCADERO, a general law city (hereinafter "City") and ALDEN F. SHIERS ("Shiers") , ARTHER R. MONTANDON ("Montandon") , HENRY ENGEN ("Engen") STEVEN L. DeCAMP ("DeCamp") and DOUGLAS G. DAVIDSON ("Davidson") , individuals. W I T N E S S E T H• That the parties hereto do agree as follows: 1. Recitals. This Agreement is made and entered into with respect to the following facts: (a) That on June 4, 1993 , an action was filed in the Superior Court for the County of San Luis Obispo ("Action") , naming as defendants, the City, four of its officers and/or employees and one of its former elected officials; and (b) The Action is entitled Clodfelter et al v. City of Atascadero et al. , San Luis Obispo Superior Court Case No. CV 073519; and (c) All named defendants have been served; and (d) Five (5) causes of action are set forth in the First Amended Complaint as follows: (1) A deprivation of due process of law and denial of equal protection of the laws; and (2) A civil conspiracy to deprive due process of law and denial of equal protection of the laws; and (3) An intentional interference with prospective economic advantages; and (4) A civil conspiracy to intentionally interfere with prospective economic advantage; and (5) negligence per se; and (e) That Shiers was an elected member of the City Council of City from June 28, 1988 to June 23 , 1992 ; and Shiers served as Mayor of the City from June 26, 1991 to June 23 , 1992 ; and (f) At all times relevant to the action, Engen was the duly appointed Director of Community Development of the 8/4/93 60036.4 1 SIGNATURE COPY City; Decamp was the duly appointed City Planner of the City; Davidson was the duly appointed Senior Planner of the City; and Montandon was the duly appointed City Attorney of the City; and (g) That Shiers, Davidson, Engen, DeCamp and Montandon have requested, pursuant to applicable law, that the City undertake their defense in the Action; and (h) That the City Council of the City has decided not to engage in settlement discussions with Plaintiffs at this time; if the City had engaged in settlement discussions and a settlement was reached, it is possible that this Action would have been dismissed; and (i) That the City Council recognizes that not settling the Action places in jeopardy Shiers, Montandon, Engen, DeCamp and Davidson, in that, it is possible, although unlikely, that punitive damages might be imposed against such individually named defendants; and (j) That Shiers, Montandon, Engen, DeCamp and Davidson have agreed to execute this Agreement, to allow the City complete control of the defense of the Action, and to accept the indemnity features of this Agreement; and (k) That it is the intent of the parties to provide, by means of this Agreement, for an indemnity for all the individually named defendants in the Action, who are parties to this Agreement; and (1) That the City Council of City has determined that the public interest, convenience and necessity require the execution of this Agreement. 2 . Relinquishment of Right to Control Defense. Shiers, Montandon, Engen, DeCamp and Davidson release and relinquish to the City any and all rights they have to control or direct defense of this Action, including, but not limited to, settlement of the same on such terms as the City Council of City may direct. 3 . Indemnification. City does hereby agree to indemnify and hold each of the said individual parties to this Agreement ("Indemnified Parties") free and harmless from and against any claim, demand or judgment arising out of this Action. Said indemnification shall apply to and include any award of damages, costs or attorneys fees of any kind, including, but not limited to, punitive damages, in the Action. 4 . Warranties. Shiers, Montandon, Engen, DeCamp and Davidson warrant to the City that they, and each of them, with respect to any actions taken by them, and each of them, with 8/4/93 60036.4 2 SIGNATURE COPY respect to the causes as alleged in the pleadings in the Action, at all times: (a) acted in good faith; and (b) acted within the course and scope of their employ and/or within the course and scope of the duties of their respective offices or positions; and (c) acted without any personal bias as to all or any of the Plaintiffs named in the Action. 5. Term. The term of this Agreement shall continue from and after the effective date of this Agreement, through and including, the e entry of a final judgment of__.a.:._.court._of- competent jurisdiction resolving all issues in the Action, or the filing of a dismissal with prejudice of the Action, whichever shall occur first. 6. Termination of Agreement. City shall have the power to terminate this Agreement as to all or any of the individual parties hereto if as a result of evidence discovered in the processing of the Action through settlement or termination, it appears that any one or more of the said individual parties breached any of the warranties set forth in Section 4 , hereof. The City Council, based upon such evidence which demonstrates breach of any such warranty, shall have the power and authority to, forthwith, terminate this Agreement as to any one or more of such individual parties who breached any such warranty. 7 . Cooperation. Each of the individual parties hereto shall, in good faith, cooperate with City as may be reasonably necessary or required for the processing and defense of the Action. 8 . Notices. Whenever notices are required to be given pursuant to the provisions of this Agreement, the same shall be in written form and shall be served upon the party to whom addressed by personal service as required in judicial proceed- ings, or by deposit of the same in the custody of the United States Postal Service or its lawful successor in interest, postage prepaid, addressed to the Parties as follows: CITY: City of Atascadero 6500 Palma Avenue Atascadero, California 93422 Attn: City Manager SHIERS, ENGEN, DECAMP, DAVIDSON & MONTANDON: c/o City of Atascadero 6500 Palma Avenue Atascadero, California 93422 Attn: City Clerk 8/4/93 60036.4 3 SIGNATURE COPY Notices shall be deemed, for all purposes, to have been given on the date of personal service or three (3) consecutive calendar days following the deposit of the same in the United States mail. 9. Binding Effect. The provisions of this Agreement shall be binding upon the parties hereto and their respective succes- sors in interest. 10. Section Headings. The section headings contained in this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents of the sections to which they relate. 11. No Presumption Re: Drafter. The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties and this Agreement reflects their mutual agreement regarding the same. Because of the nature of such negotiations and discussions, it would be inappropriate to deem any party to be the drafter of this Agreement, and therefore no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement. 12 . Assistance of Counsel. Each party to this Agreement warrants to each other party, as follows: (a) That each party either had the assistance of counsel or had counsel available to it, in the negotiation for, and execution of, this Agreement, and all related documents; and (b) That each party has lawfully authorized the execution of this Agreement. 13 . Arbitration. Except as otherwise expressly provided herein, the Parties hereto agree that any claim or dispute between them, arising out of or relating to the terms of this Agreement, shall be resolved by compulsory binding arbitration conducted by a retired Superior Court Judge of the State of California or other qualified person the Parties mutually agree upon. The claim or dispute being arbitrated shall be resolved in accordance with California law. The arbitration proceedings shall be governed by the laws and procedures governing civil judicial proceedings in this State. Each party shall comply with all applicable laws relating to binding and compulsory arbitration, the directions given by the Arbitrator and the provisions of this Agreement. The deter- minations made by the Arbitrator, if within the scope of the Arbitration and the Arbitrator's function, shall be binding and conclusive on the Parties and shall be enforceable in the manner 8/4/93 60036.4 4 SIGNATURE COPY provided by law. The Arbitrator shall be selected in the following manner: (a) The party initiating the arbitration ("Initiating Party") shall prepare and submit to the other party a list ("List") containing the names of not to exceed three (3) retired Superior Court Judges all of whom the Initiating Party believes are qualified to serve as Arbitrator. The names of the judges on the List shall be numbered consecutively. (b) The party upon whom the List is served, within ten (10) calendar days after service of the List, shall either: (i) select one of the named retired judges to act as Arbitrator, in which case that retired judge shall serve as the Arbitrator; or (ii) strike one (1) name from the List. (c) Upon expiration of said ten (10) day period, if no selection is made, the Arbitrator shall be the retired judge on the List with the lowest number next to his name, unless that judge's name was stricken during the ten (10) day period by the non-initiating party. (d) If, for any reason, the retired judge designated as the Arbitrator is unwilling or unable to serve as the Arbitrator, the judge on the List with the next lower number whose name was not stricken shall be the Arbitrator. In the event that none of the three re- tired judges named on a List, are willing or able to serve as the Arbitrator, the Initiating Party shall prepare and submit a new List, containing the names of not to exceed three (3) different retired judges, and the above described procedure shall be followed until an Arbitrator is selected. Each party hereto hereby agrees to pay one-half of the compensation to be paid to the Arbitrator, and except as other- wise expressly provided herein, each party shall bear its own costs and expenses of arbitration, including, but not limited to, attorneys' fees and related costs. By way of illustration, if the List served by the Initiating Party, upon the other party, has the name of three (3) retired judges, A, B, and C, numbered 1, 2 and 3 , respectively; and number 1 is stricken, then B, Number 2 , shall be deemed, for all purposes, to be the selected Arbitrator. 8/4/93 60036.455 SIGNATURE COPY 14 . Severability. Their Agreement is not severable, and if any provision or part thereof is declared invalid, the remaining provisions shall be no effect. 15. Modification. This Agreement shall not be modified except by written agreement of the Parties. 16. Effective Date. The effective date of this Agreement shall be August 1, 1993 . IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as set forth below: CITY OF ATASCADERO, a general law city ayor f AT T: City Clerk ALDEN F. SHIERS r� F ISL_ ARTHER R. MONTANDON HENRY ENGEN Z 8/4/93 60036.4 6 SIGNATURE COPY STEVEN L. DeCAMP DOUGLAS G. DAVIDSON 8/4/93 60036.4 7 SIGNATURE COPY