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HomeMy WebLinkAboutBOOKER, BRIAN-2015A- 2015 -258A Assumption of Defense and Reservation of Rights Agreement This Assumption of Defense and Reservation of Rights Agreement (the "Agreement ") is entered into by Brian Booker, an individual ( "BOOKER "), and the City of Santa Ana ( "CITY "), RECITALS A. On or about May 21, 2015 and thereafter, the City was served with a lawsuit naming the CITY and BOOKER as defendants. The lawsuit is entitled EDGAR vARGAS- ARZATE v. CITY OF SANTA ANA, et eel., United States District Court Case No. SACV 15 -00572 DOC (JCGx) (the "Lawsuit "), The Lawsuit assert claims against CITY mid all defendants for Excessive Force /Unreasonable Seizure (42 USC section 1983); Municipal /Supervisory Liability for Unconstitutional Customs and Practices (42 USC section 1983); State Civil Rights Violations (Cal. Civ. Code §52.1); Assault and Battery and Negligence. Plaintiffs seek damages against CITY and BOOKER. B. Under California Government Code sections 825 and 995, BOOKER has requested that CITY provide his legal defense in the Lawsuit and signed an authorization of defense providing that the City Attorney's Office was authorized to defend him in this matter, C. The underlying incident which took place on June 20, 2014 is currently under investigation. D. CITY desires and agrees to provide a legal defense of BOOKER in the Lawsuit on the terms and conditions set forth herein. Now, therefore, for good and valuable consideration,, the receipt and sufficiency of which are hereby acknowledged — including, without limitation, the recitals, the covenants, conditions, representations and warranties set forth in this Agreement — the parties hereto agree as follows: Provision of Defense The CITY, at its sole discretion, will select and pay for separate counsel to represent BOOKER in this matter on the condition that BOOKER reasonably and in good faith cooperate in the conduct of BOOKER'S defense with the CITY and understand that the CITY is reserving its rights pursuant to Section 3 of this Agreement. 2. Acknowledgements BOOKER acknowledges that he: .A. BOOKER_ has been advised by the CITY that his interests in the Lawsuit conflict with those of the CITY. & Has received from CITY and his current counsel a fbil disclosure of the facts pertaining to present and potential conflicts of interest; C. Has been advised by the CITY to seek independent counsel regarding this Agreement; and D. Consents to representation by counsel of CITY'S choosing in the Lawsuit under these circumstances. 3. Reservation of Rights A. Under California Government Code section 825(a), the CITY reserves its rights not to pay any judgment, compromise or settlement on behalf of BOOKER until it is established that the injury complained of in the above - referenced action arose out of an act or omission occurring within the scope of BOOKER'S position and duties as a. Police Officer employed by the CITY. B. Under California Government Code section 825.6(a), if the CITY pays any portion of a judgment, compromise or settlement on behalf of BOOKER in connection with the lawsuit, the CITY reserves its right to seek indemnity for such payment from BOOKER, unless BOOKER establish that the action complained of in the Lawsuit arose within the scope of BOOKER'S positions and duties as an employee of the CITY and the CITY cannot establish that BOOKER's actions were the result of actual fraud, corruption or actual malice. C. Under California Govemrent Code section 825.2(b), if the CITY does not pay any portion of ajudgment, compromise or settlement on BOOKER'S behalf in connection with the Lawsuit, BOOKER may seek recovery of such amount from CITY only if BOOKER establishes that the act or omission upon which the claim or judgment is based occurred within the scope of BOOKER'S position and duties as a Police Officer of the CYTY and if the CITY fails to establish that BOOKER acted or failed to act because of actual fraud, corruption, or actual malice, or that BOOKER willfully failed or refused to conduct the defense of the claim or action in good faith, or to reasonably cooperate in good faith in the defense conducted by CITY. 4. Execution of Other Documents BOOKER and the CITY hereto agree that they will cooperate with each other and will execute and deliver, or cause to be delivered, all such other instrnunents, and will take all such other actions, as any party hereto may reasonably request from time to time in order to effectuate the provisions and purposes hereof. Attornev's Fees If BOOKER or the CITY must bring an action to interpret or enforce any provision of this Agreement, or arising out of a misrepresentation contained in this Agreement, then the prevailing party shall be entitled to recover its actual attorneys' fees incurred in connection with such action. 6. Severability If any, Provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or eircunnstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent perrnitted by law. Governing Law and Venue This Agreement shall be construed and enforced in accordance with the .laws of the State of California, An action filed pursuant to this Agreement shall be filed in superior court in Orange County, California. Counterparts This Agreement may be executed in counterparts, each of which is deemed to be an original, but such counterparts together shall constitute one in the same instrument. All parties acknowledge receipt of a copy of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Assumption of Defense and Reservation of Rights Agreement, and when fully executed it shall be effective. ATTEST: MARIA IIUIZAR Cleric of the Coun 1 EMPLOYEE: B AN BOOKER An Individual CITY OF SANTA ANA DAVID CAVAZOS City Manager