2019/07/23 City Council Resolution 2019-093 RESOLUTION NO. 2019-093
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING CITY MANAGER TO EXECUTE THE SETTLEMENT AGREEMENT
AND GENERAL RELEASE BETWEEN AURA WISE,ROSS LONG,AND THE CITY
OF ROHNERT PARK
WHEREAS, on July 30, 2018, Plaintiff, Ed Muegge, filed a Complaint for, Injunctive,
Declaratory, and Monetary Relief ("Complaint") against Defendants City of Rohnert Park
("City") and the Good Nite Inn Rohnert Park.
WHEREAS, Mr. Muegge subsequently passed away and his daughter, Aura Wise, was
permitted to substitute into the case on his behalf.
WHEREAS, on January 5, 2019, a second plaintiff,Ross Long, (hereinafter Aura Wise
and Ross Long will be referred to collectively as"Plaintiffs") also filed a Complaint containing
the same allegations and seeking the same relief against the City, the Inn, and the Burger King
and Taco Bell (collectively, the "Defendants").
WHEREAS, the Complaints state causes of action against the City for violations of the
Americans with Disabilities Act ("ADA") and Section 504 of the Federal Rehabilitation Act
("Rehabilitation Act").
WHEREAS, following a mediation between the parties,Plaintiffs have agreed to release
all claims, including damages, attorneys' fees, and costs and dismiss the City from both lawsuits
for a total payment of Nineteen Thousand One Hundred Dollars ($19,100.00) and the City's
agreement to modify the driveway apron to bring it into compliance with current ADA standards
and the California Building Code within six months of approval of this settlement; and
WHEREAS, the City desires to resolve all claims associated with this action and enter
into the Settlement Agreement and General Release attached to this resolution as Exhibit A and
incorporated herein by reference ("Settlement Agreement").
NOW,THEREFORE BE IT RESOLVED,that the City Council of the City of Rohnert
Park does hereby resolve, determine, find and order as follows:
SECTION 1. Approval of Agreement. The Settlement Agreement between Plaintiffs and
the City is hereby approved.
SECTION 2. Authorization. The City Manager is hereby authorized to execute the
Settlement Agreement in substantially similar form to the attached Exhibit A, subject to
minor modification by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 23rd day of July, 2019.
CITY OF ROHNERT PARK
Gina Belfo or
ATTEST:
Anne M. Buergler, City Clerk
A7 O O FO t M:
Michelle Marchetta Kenyon, City Attorney
Attachments: Exhibit A— Settlement Agreement and Mutual Release
ADAMS: Ok4 C. MACKENZIE:PAD;Q)t PAD;) STAFFORD: RW?— CALLINAN:ffiAc- BELFORTE: P�Lj
AYES: ( 4 ) NOES: ( �s ) ABSENT: ( ) ABSTAIN: ( )
Resolution 2019-093
2
SETTLEMENT AGREEMENT AND GENERAL RELEASE
AURA WISE v. GOOD NITE INN ROHNERT PARK INC., CITY OF ROHNERT PARK, ET AL.
U.S, Dist, Ct., N.D. Cal, , Case No. 3:18 -CV -04604 -.IST
ROSS LONG v. GOOD NITE INN ROHNERT PARK INC., CITY OF ROHNERT PARK, ET AL.
U.S. Dist. Cr, N.D. Cat—Case No. 3:19 -CV -00079 -.IST
1. Statement of Settlement
This settlement agreement and release ("Agreement") is entered into by Plaintiffs AURA WISE
and ROSS LONG, on behalf of each of them, their respective agents, representatives, predecessors,
successors, heirs, partners, and assigns; and Defendant CITY OF ROHNERT PARK, which
includes without limitation its legislative bodies, Council, members, departments, commissions,
agents, agencies, boards, predecessors, successors, subsidiaries, related entities, employees (past,
present, and future), elected officials, officers, directors, managers, agents, representatives,
affiliates, assigns, and insurers, (hereafter collectively referred to as the "CITY"), regarding
Plaintiffs' claims against the CITY brought in United States District Court for the Northern District
of California, Case Numbers 3:18 -CV -01140 -JD and 3:19-CV-00079-JST (the "Lawsuits"). This
settlement is subject to final approval by the City Council of the City of Rohnert Park.
2. CITY's Agreement to Modify Driveway
On June 27, 2019, the parties entered into a preliminary settlement agreement that would resolve
all of the claims and issues pertaining to the allegations against the CITY in these Lawsuits, subject
to approval by the CITY's governing body.
The Parties agree that the CITY's non -monetary obligations in this matter shall be limited to the
following:
Within six (6) months of the execution of this Agreement by all parties and approval
of this settlement by the CITY's City Council, the CITY shall modify the subject
driveway apron located between 5000 and 5020 Redwood Drive in Rohnert Park
to bring it into compliance with the performance standards for altered facilities set
forth in the 2010 Americans with Disabilities Standards for Accessible Design and
Title 24, Part Two of the 2016 California Building Code.
3. Technical Infeasibility
If, in the course of performing the work on the subject driveway apron, the CITY discovers
an obstruction that it believes constitutes an alleged "technical infeasibility," it shall
provide notice of this contention to Plaintiffs' counsel at the address he has then registered
with the State Bar. Counsel for the parties will then meet and confer in an effort to find a
mutually agreeable resolution to this alleged technical infeasibility.
If the parties are unable to agree on a suitable resolution, Plaintiffs shall be permitted to
file a noticed motion under the current case number of this Lawsuit seeking enforcement
SETTLEMENT AGREEMENT & RELEASE — Wise (Muegge),v. City, of Rohnert Park, et al. & Long v.
City of Rohnert Park, et. al.
Pagel of 5
of this Agreement. The "prevailing party" in such motion proceedings, whether in full or
in part, may be entitled to an award of reasonable attorney fees, litigation expenses, and
costs for such motion, i.e., the fee recovery shall be pursuant to the normal prevailing party
standards that applied under the subject statutes before entry of this Agreement, under the
subject fee shifting statutes named in the complaint and Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978).
4. Monetary Relief
As part of this settlement, the CITY will pay:
Plaintiff AURA WISE the total sum of ONE HUNDRED DOLLARS ($100.00) for
damages within ten (10) days of the execution of this Agreement by all parties, and
approval of this Agreement by the CITY's governing body.
2. Plaintiff ROSS LONG the total sum of FOUR THOUSAND DOLLARS ($4,000.00) for
damages within ten (10) days of the execution of this Agreement by all parties and approval
of this Agreement by the CITY's governing body.
3. Counsel for Plaintiffs the total sum of FIFTEEN THOUSAND DOLLARS ($15,000.00)
for attorney's fees and costs within ten (10) days of the execution of this Agreement by all
parties and approval of this Agreement by the CITY's governing body.
A single check for the total amount of damages and attorney's fees and costs described above of
NINETEEN THOUSAND ONE HUNDRED DOLLARS ($19,100.00) shall be made out to "Tim
Thimesch, In Trust" and shall be mailed to Plaintiffs' Counsel at 4413 Black Walnut CO(II-1.
Concord, CA 94521-4319. Such payment is contingent on Plaintiffs' Counsel providing the CITY
with a copy of his firm's current W-9 form.
Platintiffs acknowledge and agree that the CITY's payment of this monetary relief is also
contingent on all other defendants in the Long matter, namely the Good Nite Inn entities, Burger
King entities, and Taco Bell entities, agreeing to dismiss all existing and potential claims against
the CITY related to the Lawsuits, or, if such agreement cannot be reached, the Court's approval of
a Motion for Good Faith Settlement to be filed by the CITY.
5. General Release
Plaintiffs LONG and WISE understand and agree that there is a risk and possibility that,
subsequent to the execution of this Agreement, either or both of them will incur, suffer, or
experience some further loss or damage with respect to the Lawsuits that is unknown or
unanticipated at the time this Agreement is signed. Except for the obligations required in this
Agreement, this Agreement shall apply to and cover any and all claims, demands, actions, and
causes- of action brought, or could have been brought by Plaintiffs with respect to the Lawsuits,
whether the same are known, unknown, or hereafter discovered or ascertained, and the provisions
of Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 provides
as follows:
SETTLEMENT AGREEMENT & RELEASE — Wise (iVluegge) v. City of Rohnert Park, et al. & Long v.
City of Rohnert Park, et. al.
Page 2 of 5
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 HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Plaintiffs, on behalf of each of them, their respective agents, representatives, predecessors,
successors, heirs, partners, and assigns, releases and forever discharges the CITY and all officers,
directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies,
employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives, from all
claims, demands, actions, and causes of action of whatever kind or nature, including personal
injury or property damage claims, presently known or unknown, arising out of or in any way
connected with the Lawsuits, including the following: (1) any and all such claims made in the
subject matter areas of the Lawsuits; and (2) any and all such claims alleged or referenced to in
Plaintiffs' Complaints and First Amended Complaints as to the released CITY.
6. Dismissal of Lawsuits
Plaintiffs hereby dismiss with prejudice all causes of action against the CITY arising out of this
incident, and described in the operative complaints in the Lawsuits, and hereby authorize and direct
their attorney to file dismissals with prejudice of the CITY in both Lawsuits, with the Court
retaining jurisdiction to enforce this Agreement, within seven (7) days of the execution of this
Agreement by all parties.
7. Entire Agreement
This Agreement expresses and constitutes the complete and final understanding of Plaintiffs and
the CITY with respect to the subject matter of their agreement. The terms of this release are
contractual and not a mere recital.
8. Interpretation
The language of this Agreement shall be construed as a whole according to its fair meaning and
not strictly for or against any of the Parties. The headings in this Agreement are solely for
convenience and shall not be considered in its interpretation. Where required by context, the plural
includes the singular and the singular includes the plural, and the terms "and" and "or" shall mean
"and/or." This Agreement is the product of negotiation and joint drafting so that any ambiguity
shall not be construed against any party. This Agreement shall be construed and enforced pursuant
to the laws of the State of California.
9. Severability
In the event any portion of this Agreement is deemed to be unenforceable, or is in conflict with
applicable law, the remainder of this Agreement will be enforced and will remain in full force and
effect.
SETTLEMENT AGREEMENT & RELEASE — Wise (Mueggp) v. City of Rohnert Park, et al. & Longv.
City of Rohnert Park, et. al.
Page 3 of 5
10. Additional Documents
To the extent any documents are required to be executed by any of the parties to effectuate this
Agreement, each party hereto agrees to execute and deliver such and further documents as may be
required to carry out the terms of this Agreement.
11. Authority to Bind
Each signatory to this Agreement certifies that it, he, or she is fully authorized by the party it, he,
or she represents to enter into this Agreement to execute it on behalf of the party represented, and
to legally bind that party thereto.
12. Disputed Claims
This Agreement is a compromise and settlement of disputed claims, and nothing in this Agreement
shall be construed at any time as an admission of liability on the part of the CITY. The CITY
denies each and every allegation advanced by Plaintiffs and, by entering into this Settlement
Agreement, does not admit liability to any of the allegations made by Plaintiffs in the complaints
filed in the Lawsuits. This Agreement is not to be construed as an admission of liability by the
CITY relating to any allegation in Plaintiffs' complaints.
13. Reliance Upon Own Judgment
Plaintiffs rely wholly upon their own judgment, beliefs, and knowledge of the nature, extent, and
duration of their damages, if any, and acknowledge that they have not been influenced to any extent
whatever in making this agreement by any representations or statements regarding said damages
or any other matters, made by the CITY, or by any person or persons representing the CITY.
14. Representation
All parties acknowledge that they have been represented by legal counsel of their own choice, that
this Agreement was prepared with the joint input of counsel and shall not be construed in favor of
or against any party to the Agreement. Plaintiffs acknowledge that this Agreement was executed
freely and voluntarily and with the consent of, and on the advice of, independent legal counsel.
15. Assignment
Plaintiffs warrant that no claims or causes of action arising out of the event or occurrences recited
herein have been assigned to any other person or entity.
16. Successors -In -Interest
This Agreement shall be binding on Plaintiffs, the CITY, and any of the parties' respective agents,
assigns, attorneys, heirs, personal representatives, executors, trustees, and successors -in -interest.
SETTLEMENT AGREEMENT & RELEASE — Wise (Muegge), v. City of Rohnert Park, et al. & Long v.
City of Rohnert Park, et. al.
Page 4 of 5
17. Signatures
The parties agree to execute in counterparts, with the same force and effect as if executed in a
single, complete document. Facsimile, electronic signatures, or PDF signatures shall have the
same force and effect as original signatures,
PLAINTIFFS
Date: Lj1 t By: -
AURA WISE
By:
ROSS LONG
Reviewed and approved as to form: T14IMESCH LAW OFFICES
By:
Timothy S. Thimesch, Esq_
Attorneys for Plaintiffs WISE and LONG
DL' FENDAN1' r
Date: at ti 0_I By:z
C Y .OFR 1-INI iR'f' PARK
Print Name: IDac�; v�, .n1Ca�S
Title:
Reviewed and approved as to form: BERTRAND, FOS{, ELLIOT, OSMAN & WENZEL
By:
Patrick A. Tuck, Esq.
Attorneys for Defendant CITY
SETTLEMENT AGREEMENT &'RELEASE — Wise (Muegge) v. City of Rohnert Park, et al. & Long v.
City. of Rohnert Parky et. al,
Page 5 of 5
17. Signatures
The parties agree to execute in counterparts, with the same force and effect as if executed in a
single, complete document. Facsimile, electronic signatures, or PDF signatures shall have the
same force and effect as original signatures.
PLAINTUFS
Date: _/ f
Reviewed and approved as to form:
DEFENDANT
Date:
Un
AURA WISE
By: � —S�
ROSS LONG
THIMESCH LAW OFFICES
r
By:
Timothy . Thimesch, Esq.
Attorneys for Plaintiff's WISE and LONG
CITY OF ROHNERT PARK
Print Name:
Title:
Reviewed and approved as to form: BERTRAND, FOX, ELLIOT, OSMAN & WENZEL
Patrick A. 'Tuck, Esq.
Attorneys for Defendant CITY
SETTLEMENT AGREEMENT & RELEASE =- Wise (Miicggc)'v. City of Rohnert Paris, et a). &. Long v.
City of Rohnert Park, et. al.
Page 5 of 5
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