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HomeMy WebLinkAboutVALENCIA, FRANCISCOINSURANCE NOT REQUIRED WORK MAY PROCEED CITY CLERK DATE: C�. Ntlltsct�,�fl.iq�Gtild�I�'�' SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS A-2023-143 This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into by and between FRANCISCO VALENCIA (hereinafter "Plaintiff'), and CITY OF SANTA ANA (hereafter "Defendant"), N N WITNESSETH: 0 WHEREAS, Plaintiff filed an action against Defendant in the Superior Court of the State co California, CountyofOrange, Central Justice CenterDistrict known as FRANCISCO VALENCIA ¢ v. CITY OF SANTA ANA Case No. 30-2022-0I246596-CU-PO-CJC (the "Action"). WHEREAS, Plaintiff, FRANCISCO VALENCIA, and Defendant (collectively, the "Parties"), desire to settle fully and finally all differences between them, including, but in no way limited to, those differences described above. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, and to avoid unnecessary litigation, it is hereby agreed by and between the Parties as follows: FIRST: This Agreement and compliance with this Agreement shall not be construed as an admission by Defendant of any liability whatsoever, or as an admission by Defendant of any violation of the rights of Plaintiff or any person, violation of any order, law, statute, duty, or contract whatsoever against Plaintiff or any person. Defendant specifically disclaim any liability to Plaintiff or any other person for any alleged violation of the rights of Plaintiff or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of any employees or agents of Defendant. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. (a) Each party will exchange a fully signed executed copy or original of this Agreement. Defendant cannot proceed with processing payment without a fully executed copy of the Agreement from Plaintiff. (b) Following receipt of, or in exchange for, an executed copy of a Request for Dismissal form from Plaintiff dismissing this Action with prejudice, Defendant, C I T Y O F SANTA ANA, will make available a check in the amount of One Hundred Twenty -Five Thousand Dollars (S 125,000) made payable "FRANCISCO VALENCIA and LAW OFFICES OF JOHN L. NORMAN". This amount represents a full and complete settlement of Plaintiffs claims for all damages alleged in the Action. The City of Santa Ana will file the Request for Dismissal following receipt of same. Plaintiff and Defendant agree that this Agreement constitutes full and complete settlement of all claims made against Defendant in this Action. Plaintiff will not seek any further compensation for any other claimed damages, costs, or attorneys fees in connection with the matters encompassed in this Agreement. Pne l of (c) Plaintiff will dismiss the lawsuit entitled, Francisco Valencia v. City of Santa Ana, Orange County Superior Court Case No. 30-2022-01246596-CU-PO-CJC. (d) Plaintiff acknowledges and agrees that Defendant have made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that he and he alone is liable for all taxes, if any, which are owed by his on any amount received hereunder including interest and penalties. Plaintiff will hold Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiff on amounts owed by him. THIRD: (a) Plaintiff further agrees to abide by the requirements of California Civil Code sections 3040 and 3045.1 through 3045.6 and satisfy any and all liens or claims (to the extent any such liens or claims exist) against the payments provided herein, specifically including, but not limited to, any lien, claim or conditional payment reimbursement demand asserted by or on behalf of Medicare or any entity claiming any right of reimbursement under the Medicare Secondary Payer Act. Plaintiff further agrees to hold harmless, indemnify and defend Defendant and Defendant's counsel of record from any claims arising from the failure of Plaintiff and/or Plaintiff's counsel of record to satisfy any such liens, claims, and/or Medicare conditional payment reimbursement demands. These obligations include Plaintiff and/or Plaintiff's counsel of record's payment and/or reimbursement of any and all reasonable attorney's fees and expenses incurred by Defendant and/or Defendant's counsel of record in connection with the failure of Plaintiff and/or Plaintiffs counsel of record to satisfy any such liens, claims, and/or Medicare conditional payment reimbursement demands. (b) Plaintiff agrees to hold harmless, indemnify, and defend Defendant and Defendant's counsel of record with respect to any and all other claims that may be presented by Plaintiff, Medicare, and/or any other party acting on Plaintiff or Medicare's behalf, including, but not limited to, administrative or civil fines, penalties, and interest, as well as any damages that arise out of, result from, and/or occur as a consequence of any adverse administrative or legal actions, up to and including the loss of Plaintiffs future Medicare benefits and/or Medicare eligibility. (c) The Parties acknowledge that Plaintiff may choose to obtain a Medicare Set Aside Arrangement ("MSA"). The Parties further acknowledge that Defendant and/or Defendant's counsel of record has/have not provided any advice, legal or otherwise, as to whether such MSA is required, needed or warranted, or how it should be structured or funded. Plaintiff undertakes and acknowledges complete responsibility for the implementation of any such MSA, should one be required. Plaintiff further agrees to hold harmless, indemnify, and defend Defendant and/or Defendant's counsel of record from any claims or liabilities arising out of or in any way connected with any such MSA, including any and all reasonable attorney's fees and expenses incurred by Defendant and/or Defendant's counsel of record in connection therewith. FOURTH: Plaintiff represents that, with the exception of this Action and the government tort claim associated therewith and submitted to the City of Santa Ana, he has not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of Defendant with any state, federal, or local Page 2 of 5 agency or court and that they will not do so at any time hereafter as it relates to this Action and that if any agency or court assumes jurisdiction of any complaint, claim, or action against Defendant on Plaintiff's behalf, Plaintiff will direct that agency or court to withdraw and dismiss the matter with prejudice. l F'1'H: The parties hereto hereby agree that all rights under Section 1542 of the Civii Code of the State of California are hereby waived. Civil Code Section 1542 provides as follows: i°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 the release, which if known by him or her must have materially affected his or her settlement with the debtor." SIXTH: Notwithstanding the provisions of Civil Code section 1542, each party hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with each other party from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which each releasing party at any time heretofore had or claimed to have or which each releasing party at any time hereafter may have or claim to have, incidental to the incident(s) which form the basis of the Action, SEVENTH: Each person signing below represents that he/she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to them and that they understand every provision of this Agreement, that they understand that in agreeing to this document they are releasing each party hereby from any and all claims they may have against each party released, that they voluntarily agree to all the terms set forth in this Agreement, that they knowingly and willingly intend to be legally bound by the same, that they were given the opportunity to consider the terms of this Agreement and had the opportunity to discuss this Agreement with legal counsel representing them in this matter, or any other legal counsel of their choosing. Each party hereby warrants that they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. Plaintiff s Initial HTl : The Parties hereto represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by any of the parties or by any of the parties' agents, attorneys, or representatives with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. NINTH: This Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, executors, predecessors, successors, and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators, representatives, executors, predecessors, successors, and assigns. TENTH: Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and Page 3 of 5 A-2023-143 enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of this Agreement. ELEVENTH: This Agreement sets forth the entire agreement between the parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter hereof. TWELFTH: This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the parties hereto. THIRTEENTH: This Agreement may be executed in counterparts, secured via e- mail, facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. PARTIES: Plaintiff Dated: ZI Z ,rgA/(/e/-�cc),�GIA FRANCISCO VALENCIA Plaintiff Dated: Zf1Z9j By: 1�t— '\'� AC> CITY OF SANTA ANA City Manager Kristine Ridge ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California Dated: <6 gy. Jennifer L. I, rk of the Council CONTINUED ON NEXT PAGE Page 4 of 5 APPROVED AS TO FORM: LAW OFFICES OF JOIIN L. NORMAN Dated: 7 1 SONIA R. CARVALHO City Attorney City of Santa Ana Dated:08/02/2023 *K- Assistant City Attorney Attorneys for Defendant City of Santa Ana Page 5 oF5