The URL can be used to link to this page

Home My WebLink AboutRODRIGUEZ, MARIAN-201.9-078 INSURANCE'NOT iiEt)1llli�'p WORK M Y PROCEED !l1+YC CLERK OF COUNCIL MAY (1 1 2019 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS CAD P This Settlement Agreement and Release of All Claims (the "Settlement Agreement") is y y ?,knaadde and entered into this th day of April 2019, by and among: "Plaintiff ' Maria Rodriguez "Defendants" City of Santa Ana, Sureteck Industrial & Commercial Services, Inc. and Clear Channel Outdoor, Inc. (collectively the "Defendants") RECITALS A. Plaintiff filed a complaint against County of Orange ("County"), City of Santa Ana ("City"), Sureteck Industrial & Commercial Services, Inc, ("Sureteck") and Clear Channel Outdoor, Inc. ("CCO") in the Superior Court of California, County of Orange, Case No.: 30- 2017-00935500, ("Litigation") as a result of a certain occurrence on or about September 13, 2016, that Plaintiff alleges resulted in personal injuries to Plaintiff ("Incident"). B. The City, Sureteck and CCO filed cross -complaints for, among other things, declaratory relief and indemnity, and contribution. The cross -complaints were based on contractual obligations between the City and CCO, and CCO and Sureteck including indemnity, fee, costs and insurance, including but not limited to, additional insured endorsements. C. On or about November 1, 2018, the County prevailed on its Motion for Summary Judgment and judgment was entered in its favor and it is therefore not a party to this Settlement A�eernent. D. The parties hereby agree there is no admission of liability, but desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims that are, or might have been, the subject matter of the Litigation upon the terns and conditions set forth below and, each party is to bear its own attorneys' fees and costs of suit in the Litigation. AGREEMENT The parties agree as follows: 1.0 Releases and Discharges 1.1 In consideration of the payments set forth in Section 2.0 below, Plaintiff hereby completely releases and forever discharges Defendants, their insurers, their third party administrator from any and all past, present or future claims, demands, liabilities, obligations, liens, actions, causes of action, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, or which are the subject of the Litigation or the Incident and all related pleadings including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, which have resulted or may result from the alleged acts or omission of the Defendants. 1.2 City, Sureteck and CCO hereby mutually agree to completely release and forever discharge one another from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which City, Sureteck and CCO now have against each other, arising out of the Incident or the Litigation, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, or which are the subject of the Litigation or the Incident and all related pleadings including, without limitation, any and all known or unknown claims for breach of contract indemnity or additional insured endorsements, which have arisen or resulted or may result from the alleged acts or omissions of the respective Defendants, whether based in contacts or implied in equity. 1.3 These releases and discharges shall also apply to Defendants' and each of their insurers' past, present, and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 1.4 These releases and discharges on the part of the parties shall be a fully binding and a full and final and complete settlement of any and all claims and liens known and unknown between and among Plaintiff, Defendants and their assigns, and successors. 1.5 No party shall claim to be the prevailing party in the Litigation. 2.0 Payments In consideration of the releases set forth above and pursuant to the agreement reached among the Defendants, Sureteck agrees to pay to Plaintiff the sum of Twenty Thousand Dollars and No Cents ($20,000), made payable to "Maria Rodriguez and Chambers and Noronha". All sums set forth herein constitute damages on account of personal physical injuries or physical sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. Defendants City and CCO agree that in exchange for Sureteck funding the settlement amount, each will waive all of their respective rights, whether based in contracts or implied in equity, to pursue post tender fees and costs pursuant to the underlying contracts at issue in the cross -complaints. City, Sureteck and CCO shall each file dismissals, with prejudice, of their respective cross -complaints. City, Sureteck and CCO shall bear their own fees and costs. 3.0 Requests for Dismissal in Exchange for Payment Within seven (7) days after the Settlement Agreement becomes effective, in connection with this Settlement Agreement, counsel for the Plaintiff shall, in exchange for full payment, deliver to counsel for each of the Defendants an executed Request for Dismissal with Prejudice of Plaintiff s complaint in the Litigation, which dismisses all causes of action asserted against all Defendants therein, with each party to bear its own attorneys' fees and costs. 4.0 Warranty of Capacity to Execute Agreement 4.1 Plaintiff represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement except as otherwise set forth herein; that Plaintiff has the sole right and exclusive authority to execute this Settlement Agreement and receive the amounts specified in it; and that Plaintiff has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. 4.2 Each person signing this Settlement Agreement represents and warrants that he or she has the requisite authority to execute this Settlement Agreement and bind the party for whom they are signing. 5.0 Governing Law 5.1 This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California without reference to California's choice -of - law rules. 5.2 Each party to this Settlement Agreement hereby waives any and all rights based upon the provisions of California Civil Code Section 1542 which read as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing this release, which, if known to him or her, must have materially affected his or her settlement with the debtor. 5.3 This Settlement Agreement is binding on the parties pursuant to Code of Civil Procedure section 664.6 and is admissible in court as set forth in Evidence Code section 1123. 6.0 Plaintiff Responsible for All Liens, Medicare, and Indemnification 6.1 Plaintiff warrants and agrees that she is solely responsible for any and all liens known and unknown of any kind that have arisen or that may arise from the provision of medical or other health care or any benefits to or on behalf of Plaintiff by any attorney, physician, health care provider, insurance carrier, Medicare, Medicaid, Medi-Cal, or any governmental agency or other personal agent. Upon receipt of any such lien claim by Defendants or their Insurers or Third Party Administrators (including by their attorneys) the receiving party(ies) shall tender the claim to Plaintiff, who covenants and agrees that upon tender she shall resolve such claim(s) or defend and indemnify (at their sole cost and expense through counsel of Defendant's choice) Defendants, their insurers and/or third party administrators, their attorneys, representatives, agents, assigns, or successors in interest from any and all such claims, demands, actions, causes of action, suits or complaints, that may be brought by any person(s), firm, corporation, or other entity(ties) against Defendants, their insurers and/or third party administrators, their attorneys, representatives, agents, assigns, or successors in interest, for failure of Plaintiff to satisfy the payment of any liens referred to above. Should Plaintiff undertake the defense of any lien claim asserted against Defendants, or their insurers and/or third party administrators, attorneys, representatives, agents, assigns, or successors in interest those parties shall fully cooperate with Plaintiff in defense of said claims. It is further understood and agreed by the parties that should Plaintiff undertake the defense of any lien claim asserted against the released parties, and such lien claim is subsequently found to be invalid as against Defendants, or their insurers and/or third party administrators, attorneys, representatives, agents, assigns, or successors in interest, they hereby assign to Plaintiff, for her sole benefit, any legal rights to pursue or claim and any and all legal remedies which they may have against the person or entity asserting the invalid lien. 6.2 Plaintiff expressly releases and further waives her right to any claim or cause of action against Defendants, their insurers and/or third party administrators, and their attorneys, representatives, agents, assigns, or successors in interest for any claim that Plaintiff may currently have or that arises in the future pursuant to the Medicare Secondary Payer Act - Private Cause of Action as codified in 42 U.S.C. §1395y(b)(3)(A) related to the claims and events addressed in this Settlement Agreement and subject to the release set forth above. Plaintiff further agrees to both defend at her sole cost and expense and through counsel of their choice, Defendants, their insurers and/or third party administrators, their attorneys, representatives, agents, assigns, or successors in interest and to hold harmless Defendants, their insurers and/or third party administrators, their attorneys and their representatives, agents, assigns, or successors in interest from any claim, lien, or cause of action brought by any entity pursuant to the Medicare Secondary Payer Act (42 U.S.C. § 1395y(b)) related to this claim through payment of any judgment thereon. 6.3 Plaintiff is responsible for all future medical care arising out of or in any way related to or in connection with the Incident which is the basis of the Litigation. 7.0 Entire Agreement and Successors in Interest 7.1 This Settlement Agreement is fully integrated and contains the entire agreement between and among the Plaintiff, Defendants, and the settling insurers with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. 8.0 Effectiveness This Settlement Agreement shall become effective on the date it is fully executed by all parties. The parties hereto agree that this Settlement Agreement may be executed in one or more counterparts, and that such executed counterpart, when combined with each of the other executed counterparts, shall constitute one and the same instrument. Signature pages transmitted electronically or by facsimile shall be given the same weight and effect, and treated as original signatures. The parties, and each of them, represent and acknowledge that (1) each has had an opportunity to review and discuss this Settlement Agreement with competent counsel of their choice; (2) each has carefully read and fully understands each of the provisions contained herein and of the consequences thereof; and (3) each party enters into this Settlement Agreement voluntarily and of their own free will. Plaintiff: Maria Rodriguez M Date: Plaintiff's Attorney Date: Defendant: City of Santa Ana /I By:1✓ Steven A. Mendoza Title: Acting City Manager Date: Ll - 2 9 - l el Defendant: Sureteck Industrial & Commercial Services, Inc. By: Title: Date: Defendant: Clear Channel Outdoor, Inc. By: Title: Date: Approved as to Form: City of Santa a's�At/tor y By: �PIR� Nt. Sc�lwy}�2M�N l� Date: �iil-r4�.\q, � fL nth r Norma Mitre Acting Clerk of the Council Sureteck Industrial & Commercial Services, Inc.'s Attorney M Date: Clear Channel Outdoor, Inc.'s Attorney Date: