HomeMy WebLinkAboutSTONE, DAVID - 2015A- 2015 -085
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MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Y THIS MUTUAL .RELEASE AND SETTLE 'ENT AGREEMENT
( "Agreemen.t ") is entered into this A day of 2015 by and between
David Stone ("Plaintiff"), the City of Santa Agra (" ity"), and Green Giant
Landscape, Inc, ( "Green Giant "), collectively referred to as the "Parties ".
RE CITATIONS AND REFRESENTATI:GNS
WHEREAS, on or about Dcecntbcr 30, 2013, Plaintiff' commenced an action
against City in the Superior Court, State of California, County of Orange, Case
No. 30- 2013 - 00695626 ( "the Lawsuit "), and
WHEREAS, City fled a cross - complaint seeking indemnification from
Green Giant; and
WHEREAS, the Parties desire to discharge all claims, demands, liabilities,
and causes of action against one another, as of the effective date of this
Agreement, including but not limited to any and all claims, demands, liabilities,
and causes of action in any manner based upon or arising out of the subject matter
of the Lawsuit; and
WI3EREAS, the Parties wish to reduce to writing the full terms of their
agreement.
RELEASE
NOW, THEREFORE, in consideration of the following respective
provisions and covenants, the Parties hereto agree and release one another as
follows;
B_6 : This Agreement and compliance with this Agroomont shall not be
construed as an admission by the Defendants and of any liability whatsoever, or as an
admission by the 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
parson, Thu Defendants specifically disclaim any liability to Plaintiff, to each oilier, 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, agents of the City of Santa Ana and Gram Giant Landscape, Likewise, this
i
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Agreement and compliance with this Agreement shaft not be construed as an admission
by Plaintiff of any liability, misconduct, or wrongdoing whatsoever,
E OND: (a) Plaintiff will sign a Request for Dismissal of the Lndre Action
with Prejudice form dismissing the above entitled case,
(b) Defendants will notify Plaintiff s attorney when the settlement
checks are ready. Thereafter, Plaintiff's attorney will send Defendants a fully signed
original of this Agreement, and an executed original Request for Dismissal form, In turn,
each Defendant will send via overnight mail to Plaintiffs counsel, a check in the amount
of fifteen thousand dollars ($15,000,00) in full and complete settlement of all claims
made against each respective •Defendant in the Lawsuit. Pach check will be made payable
to "David Stono and his attorney of record, the Law Offices of David Craudall." The
amounts described herein arc in full and comploto settlement for Plaintiffs claims for all
damages alleged in the above - entitled action,
(e) Defendant City sign a Request for Dismissal with Prejudice form
dismissing its Grass - Complaint in the above entitled case. City expressly waives any and
all claims that it may have against Green Giant for express or implied indemnification
arising from Groen Giant's work that is the subject of the Lawsuit,
(d) Plaintiff and Defendants agree that the foregoing mutual
dismissals constitute full and complete settlement of all claims made against all Parries in
this litigation and encompasses any and all rights and/or claims for damages, costs, or
attorney's fees in connaotion with the Lawsuit,
(e) Plaintiff acknowledges and agrees that Defendants have made no
representations to him regarding the tax consequences of any amounts received by him
pursuant to this Agreement, Plaintiff agrees that he and be alone is liable for all taxes, if
any, that are owed by him on any amount received hereunder including interest and
penalties. Plaintiff will hold Defendants hamtless from any and all claims made by
federal, state, or local taxing authorities or lien holders, including the holders of any .liens
for medical expenses such as Kaiser Permanent®, against Plaintiff on amounts owed by
him,
(f) Plaintiff agrees that he shall not take any action to publicize
the resolution of the Lawsuit or the terms of this Agreement, including but not
limited to, speaking with the media or producing press releases.
T RD: Plaintiff represents that, with the exception of the above- entitled
action, he has not filed any complaints, claims, or actions against Defendants including
Mutuul Rclnu:io and Settlement AVaenaeaf �• Document No, 25415
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any of dioir officers, agents, directors, supervisors, employees, or representatives with any
state, federal, or local agency or court and that he will not do so at array time lnefeafter as it
rolates to the Lawsuit and that if any agency Or court assumes j4iisdlOrl0I of any
complaint, claim, or action against Dorcadarils or any of them on Plahalfis behalf,
Plaintiff will direct that agency or court to withdraw and dismiss will' P10judlco such a
matter,
4�TM Plaintiff represents and warrants that no portion of any claim, right,
demand, Mier, or cause of action that he has or might have against Defendants or atny of
them, and any of their officers, agents, directors, supervisors, employees, or
representatives or any portion of any recovety or settiomcut to which he may be entitled
from Defendants, has boon assigned or transferred to any person, entity or corporation in
any manner, including by way of subrogation, transfer or operation of law. In the event
that any claim, demand, suit or Hen (existing or potential), was instituted against the
Defendants, including the officers, agents, directors, supervisors, employees, ar
representatives, because of any such purported assignment, subrogation, transfer or lien,
Plaintiff agrees to indeamiify and hold harmless Defendants and their officers, agents,
directors, supervisors, employees, or representatives against any such ulahn; suit, domand,
and to pay nod satisfy any such claim, suit, demand or lien, including exponsos of
investigation, attorneys' 'foes, and costs,
+IFT11h 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 hl; or her settlement with the debtor."
SIXTH; Notwithstanding the provisions of Civil Codc section 1542, each
party hereby irrevocably and unconditionally rgleascs and forever disoharges each other
party and each and oil of its officers, agonts, directors, supervisors, employe",
representatives, and its successors and assigns and alt persons noting by, through, undor,
or in concert with each other party from any and all chargos, complaints, claims, and
liabilities of any kind or..nature whatsoever, known or unknown, suspected or unsuspected
(hereinafter referred to as "claim" or "claims ") that 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) that form the basis of the Lawsuit,
Each of the Pardon acicaowledges that befit may have sustained damages, losses,
coats, or expensos that- are presently anknown and unsuspected, and that such
s
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damages, losses, costs, or expenses as may have been sustained may give rise to
additional damage, loss, cost or expense in the future, Nevertheless, each of the
Parties acknowledges that this Agreement has been negotiated and agreed upon in
light of this situation, and hereby expressly waives any and all rights that he /it has
under California Civil Code Section 1,542 or under any other state or federal
statutes or common law principle of similar effect.
St VI NTkx: Each person signing below ropresents that he /she has reviewed all
aspoots of this Agreement; that the Agreement has been carefully read and fully explained
to him/her and that he /she understands all the provisions of this Agreement; that he /she
understands that in agreeing to this document he /she is releasing each party hereby from
any and all claims he /she may bave against each party released, Hutt b0/she voluntarily
agrees to all the terms act forth in this Agreement; that he /she knowingly and willingly
intends to be legally bound by the same; and that he /she was given the apporttmity to
cunsidur the terms of this Agreement and discussed them with legal counsel,
EI, Gam: The Parties hereto represent and acknowledge that in executing this
Agrcontcnt 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 statod in this Agrooment,
NINT9: All Parties to this Agreement shall bear their own respective
costs of suit and attorneys' fees related to the Lawsuit.
TTlli rlj: The .Parties each agree that, in the event of any breach of this
Agreement, the aggrieved party shall be entitled to recover from the party who
breaches, in addition to any other relief provided by law, such. costs anti expenses
as may be incurred by said party, includipg oourt costs, attorneys, fees, and other
costs and expenses, taxable or otherwise, reasonably necessary in preparing the
defense of, defending against, or seeking or obtaining an abatement of,, or an
injunction against, ouch action or proceeding, or in enforcing this Agreement, or in
establishing or maintaining the applicability of, or the validity of, this Agreement,
or any provision thereof, and In the prosecuting any counterclaim or cross -
complaint based thereon,
l+':C,T+JWNTtt: This Agreement shall be binding upon the Parties hereto and
upon their hoir8, administrators, reprosentatives, executors, predcOMOM, aaecessors, and
assigns, and shill inuro to the benefit of said Parries and each of thern and to their heirs,
administrators, representatives, executors, predecessors, successors, and assigns.
4
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J3L1LLT—'TJj; Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal, invalid, Or
the legality, validity, and enforceability of the remaining patts, terms, Of provisions Shall
not be xffcotcd thereby, and said illegal, or invalid Part, term, Or provision
shall be deemed not to be a part of this Agreement,
:CK1JkU:,1.i'NrH; This Agreornerut sets forth the entire agreement between the
Parties lieroto and fully supersedes as yy and oil prior agreements or understandings,
written or oral, bcl:weon the Parties hereto pertaining to the subject Matter hereof.
rart,liorinore, It Is expressly understood and agreed that this Agractflont may not be
altered, amended, rnQdifiod, or otherwise challgod in any respect or particular whatsoever
except by a writing duty executed by authorized representatives of the B'at'tles 1101'0(0, 'The
Parties hereby agree and acknowledge that they will ninko no claim at any time or VInco,
that this Agreement has been orally. altered or Modified or otilorwiso changed by oral
communication of any kind or character,
EQUIALNIM: 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,
1171E, T_E_& .1 Plaintiff warrants that there is no Medicare lien in this matter.
However, should Medicare be entitled to or demand additional payment for services
rendered in corrneotlon with this action, Plaintiff alone is responsible for any payments
required to be paid to Medicare,
SIXTE N_Jrffi Each of the undersigned signing on behalf of a party that
is not an if1dividual person warrants that he ,x 0,
she is authorized to sign for and
binds simb. party.
The foregoing Release and Settlement Agmonlknl is agree' to by;
Dated:
VI ) S NE
Plaintiff
[CONTINUED ON NEXT PAGr]
Mutual Release and Settlement ArVotaltat Downiont No. 25415
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Dated: CITY OF SANTA ANA, a charter law city and
municipal corporation, duly organized and existing under
the Constitution a d iawus f the State California
Hy:
Devi :ty� anger
ATTCST: 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:
Maria D. Iiuizar, Clerk of the nail_
APPROVED AS TO FORM:
LAW OFFICES OF DAVID CfR }ANDALL
Dated: ._ ..
dd IJA IDJ CRANDALL, Esq,
Attorney for Plaintiff, .David Stone
Dated: QIJ T TERREz, FIERRO & ERICKSON, A,P,C,
ARTURO N, FIERRO �"_ ..
Attorneys for Defendant
CITY OF SANTA ANA
Dated: LAW OFFICES OF HALAS & MUIiAR
G1iQItCiE MiTIf.AR .� . ~.. y
Attorneys for Defendant
GREEN GIANT LANDSCAPE, INC.
and Settlement
25415
Dated: CITY OF SANTA ANA, a charter law city and
municipal corporation, duly organized and existing under
the Constitution and-lawsttf the State of California
David
ATTEST: CITY OF SANTA ANA, a charter law city and
municipal corporation, duly organized and existing under
Dated: the Constitution and laws of the State of California
I
; By_,,- eMan D. uizar, Clerk ;
I
APPROVED -
AS TO FORM:
Dated:
Dated:
Dated:
LAW OFFICES OF DAVID CRANDALL
- ---------
DAVID CRANDALL , Es-q.
Attorney for Plaintiff, David Stone
GUTIERREZ, FIERRO & ERICKSON, A.P.C.
-T�URO'N
Attorneys f!
clarit
CITY OF SANTA ANA
LAW OFF1CJ.iS--(.)FHALAS & MUHAR
Attorneys or Defendant
GREEN )1'ANT LANDSCAPE, INC.
Mutual Release and Settlement Agreement Domiment No. 25415