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HomeMy WebLinkAboutALVARADO, NOEMIN-2023-325 NOV 30 ZOZ3 o. (,Av(u� LS. Flaesl �^b SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into by and between NOEMI ALVARADO (hereinafter "Plaintiff'), and SAMUEL T. ESPARZA and CITY OF SANTA ANA (hereafter "Defendants"). WHEREAS, Plaintiff filed an action against Defendants in the Superior Court of the State California, County of Orange, Central Justice Center known as NOEMI ALVARADO v. CITY OF SANTA ANA, et al., Case No. 30-2023-01339778-CU-PA-CJC (the "Action"). WHEREAS, Plaintiff and Defendants (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 Defendants of any liability whatsoever, or as an admission by Defendants 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. Defendants 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 Defendants. 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. Defendants cannot process 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, Defendants will make available a check in the amount of Forty -Five Thousand Dollars ($45,000) made payable "NOEMI ALVARADO AND CARDONA LAW FIRM". 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 Plaintiffs receipt of the settlement check. Plaintiff and Defendants agree that this Agreement constitutes full and complete settlement of all claims made against Defendants in this Action. Plaintiff will not seek any further compensation for any other claimed damages, costs, or attorney's fees in connection with the matters encompassed in this Agreement. Page 1 of 4 THIRD: Plaintiff acknowledges and agrees that Defendants have made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that he/she and he/she 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 Defendants harmless from any and all claims made by federal, state, or local taxing authorities regarding amounts owed by Plaintiff. Plaintiff will likewise hold Defendants harmless from any and all lien holders to whom Plaintiff incurred medical expenses and will hold Defendants harmless for any medical expenses owed by Plaintiff. 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/she has not filed any complaints, claims, or actions against Defendants including any of its officers, agents, directors, supervisors, employees, or representatives of Defendants with any state, federal, or local 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 Defendants on Plaintiff s behalf, Plaintiff will direct that agency or court to withdraw and dismiss the matter with prejudice. FIFTH: The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code Section 1542 provides 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 the release, which if known by him or her must have materially affected his or her settlement with the debtor." SIXTII: 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. Each party hereby warrants they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. Page 2 of 4 LIGHT : The Parties represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by another party or by another 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. INTH: This Agreement shall be binding upon the Parties 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 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. EL X +NTII: This Agreement sets forth the entire agreement between the parties hereto and fully superscdcs any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject hatter hereof. TWELFTH: This Agreement shall be interpreted in acomdance 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: in " Dated: 11/20/2023 Defendants Dated: NOEMIALVARADO Plaintiff 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 M Steven A. Mendoza Acting City Manager [CONTINUED ON NEXT PAGE] Page 3 of 4 EIGHTH: The Parties represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by another party or by another 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 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 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 NOEMIALVARADO Plaintiff 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: By: 1//Y.al Thomas R. Hatch, Interim City Manager [CONTINUED ON NEXT PAGE] Page 3 of 4 ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the ConstitutUdlahe S toofCaliforniDated: 130123 gy/,' Alerlc of the Council APPROVED AS TO FORM: 11/21/2023 CARDONA LAW FIRM t � V Christian O. Cardona Attorneys for Plaintiff Noemi Alvarado SONIA R. CARVALHO City Attorney City of Santa Ana Dated: Sandra M. Flores Senior Assistant City Attorney Attorneys for Defendants Page 4 of ATTEST: Dated: NOV 3 0 2023 APPROVED AS TO FORM: Dated: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and lawwnf the State of California the CARDONA LAW FIRM Christian G. Cardona Attorneys for Plaintiff Noemi Alvarado SONIA R. CARVALHO City Attorney City o Santa Ana Dated: November 22. 2023 N Sandra M. Flores Senior Assistant City Attorney Attorneys for Defendants Page 4 of 4 EXHIBIT "B" LAR -- 06/19/18 RESOLUTION NO. 2018-045 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING CITY STAFF TO SETTLE LIABILITY CLAIMS AND/OR PENDING LITIGATION AGAINST THE CITY UP TO FIFTY THOUSAND DOLLARS AND WORKERS' COMPENSATION CLAIMS FOR UP TO ONE HUNDRED AND FIFTY THOUSAND DOLLARS AND REPEALING RESOLUTION 2015-041 Whereas, California Government Code Section 900 of seq. establishes general provisions regarding the processing of claims filed against cities, and authorizes cities to adopt local procedures not in conflict with state law; Whereas, California Government Code Section 935.4 allows this Council by resolution to authorize an employee of the City to allow, compromise or settle a claim against the City which would otherwise be filed and borne by the City Council; Whereas, California Government Code section 949 allows this Council to delegate its authority to its attorney or employee to compromise any pending action. Whereas, the City of Santa Ana is permissibly self -insured for Workers' Compensation pursuant to the provisions of Sections 3700 et seg, of the California Labor Code; Whereas, consideration by the City Council of every claim or action presented can occupy an inordinate amount of time, preventing the City Council from considering other important matters of City business; and Whereas, a survey was conducted by Human Resources staff and it was discovered that many Orange County cities delegate authority to settle litigation and claims in excess of the twenty-five thousand dollars currently authorized by the City Council. Whereas, increasing the authority to settle claims and litigated matters would increase efficiency and streamline internal processes. NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY FIND, DETERMINE, ORDER AND RESOLVE AS FOLLOWS: Section 1. The Executive Director of Human Resources, or his/her designee, is authorized to allow, compromise or settle liability claims and/or pending litigation (i.e. lawsuits) against the City up to twenty-five thousand dollars ($25,000); Section 2. The Executive Director of Human Resources, City Attorney, and City Manager or their respective designees are authorized to allow, compromise or settle Resolution No. 2018-045 Page 1 of 3 liability claims and/or pending litigation (i.e. lawsuits) against the City for twenty-five thousand and one dollars ($25,001) up to fifty thousand dollars ($50,000); Section 3. The Executive Director of Human Resources or his/her designee is authorized to compromise or settle workers' compensation claims, including stipulated judgments, liens resulting from claims, bills and invoices relating to management of the claim, up to one hundred and fifty thousand dollars ($150,000,00) with the approval of the City Attorney and City Manager or their respective designees. Section 4. All settlements of claims, litigation and worker's compensation claims pursuant to this Resolution will be reported to the City Council on a quarterly basis in a similar manner to the contracts for less than twenty-five ($25,000) approved by the City Manager. Section 6. Resolution No. 2015-041 is hereby repealed. Section 6. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this 191h day of June, 2018. APPROVED AS TO FORM: Sonla R. Carvalho City Attorney By: Laura A. Rossini Senior Assistant City Attorney AYES: Councilmembers Benavides Pulido, Sarmiento, Solorio Tinaiero, Villegas (6) NOES: Councilmembers None (0) ABSTAIN: Councilmembers None (0) NOT PRESENT: Councilmembers Martinez (1) Resolution No. 2018-045 Page 2 of 3 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2018-045 to be the original resolution adopted by the City Council of the City of Santa Ana on June 19, 2018. Date: Marla'D. Huizar Clerk of the Council City of Santa Ana Resolution No. 2018-045 Page 3 of 3