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HomeMy WebLinkAboutKIMBERLY CERDAINSURANCE NOT REQUIRED A-2016-381 WORK MAY PROCEED CLERK Of COUNCIL DATE:,� 110 tol -2 SETTLEMENT AGREEMENT WHEREAS, KIMBERLY CERDA, (hereafter referred to as "Plaintiff') on or about August 11, 2015, filed a civil lawsuit in the Orange County Superior Court, Case No. 30-2015- 00803814-CU-WT-CJC entitled: KIMBERLY CERDA v. CITY OF SANT ANA et al. (Subject Lawsuit) against the City of Santa Ana (hereafter referred to as "Defendant'). WHEREAS, the Plaintiff and Defendant recited herein above (hereafter, jointly, the OParties"), without any admission of any fault, liability, or lack of merit as to any claim or defense by any Party, are desirous of resolving their differences and settling all claims set contained in said civil action, IT IS THEREFORE AGREED BY EACH OF THE PARTIES TO SAID C17VIL ACTION THAT: Defendant agrees to make a total payment in the amount of EIGHTY-FIVE THOUSAND DOLLARS.($85,000.00) ("Settlement Sum") to Plaintiff, as a complete consideration for settlement of all of Plaintiff s claims against Defendant. In exchange for the dismissal in Section 2 and the release of all claims as set forth in Section 2 below, the Parties agree to settle this case for a total of Eighty -Five Thousand Dollars ($85,000.00). The total settlement payment of Eighty -Five Thousand Dollars ($85,000.00) shall be made payable in three (3) separate checks as follows: a) The first check shall be made payable to Kimberly Cerda in the amount of Eight Thousand Five Hundred Twelve Dollars and 24/100 ($8,512.24), as a "wage payment," subject to all required deductions and withholdings. A W-2 statement will be issued in the normal course of business; b) The second check shall be made payable to Kimberly Cerda in the amount of Thirty -Four Thousand Forty -Eight Dollars and 95/100 ($34,048.95), as a "non- wage payment," for damages and emotional distress. A 1099 statement will be issued in the normal course of business; c) The third check shall be made payable to the "Mahoney Law Group, APC Trust Account" whose tax identification number is 45-490-5084, in the amount of Forty -Two Thousand Four Hundred Thirty -Eight Dollars 81/100 ($42,438.81), for payment of attorneys' fees and costs. A 1009 statement will be issued in the normal course of business. 2. Plaintiff, for her part, expressly agrees to dismiss said civil action and all claims thereof, with prejudice, as against Defendant, and all of Defendant s employees, agents and servants, arising out of the subject matter of said civil action. Plaintiff acknowledges that she is responsible for any liens, if any, that exist or may exist in the future, arising out of the aforementioned action. However, nothing in this paragraph is intended to obligate Plaintiff for any liens incurred as a result of her filing her worker's compensation case, specifically, case number ADJ 10065182 3. Plaintiff and Defendant, and each of them, agree that each shall be responsible for their own respective costs and attorneys' fees in said civil action, and agree that each shall make no claim against the other therefore. 4. Each of the undersigned Parties to this agreement does hereby forever release and discharge each other Party to this agreement and any of their past and present agents, servants, representatives, employers and employees from any and all actions, claims, causes of actions, obligations, costs, attorney's fees, and each of them, and each and every agent, employer, employee, and their representative thereof, from any and all actions, causes of action, obligations, costs, attorney s fees, damages, losses, claims, liabilities and demands of whatever character, including but not limited to, the generality of the foregoing releases and any and all causes of action or claims of whatever character and all matters alleged and which could or would have been alleged in any action arising out of the conduct of the Parties described in this action. 5. The Plaintiff hereby expressly agrees that this release extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past, present or future against Defendant and any of its past and present agents, servants, representatives, employers and employees to this agreement, and expressly waives all rights granted to Plaintiff under Section 1542 of the California Civil Code, which Section reads 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. 6. Each of the undersigned Parties to this agreement understand and agrees that this general release shall inure to the benefit of the successors in interest of each other Party to this agreement, and each and every division, department, agent, employer, employee, and representative thereof and shall be binding upon each party to this agreement and each of his, her or its successors in interest. 7. Each undersigned acknowledges that the action, causes of action, claims, etc. herein released have not been assigned or in any manner transferred to any person or entity, for consideration or otherwise. All such claims are hereby extinguished and released, as herein provided. 8. It is further understood and agreed to by all Parties to this Settlement Agreement that this settlement is a good faith compromise of a disputed claim, and that the payments referenced herein are not to be construed as an admission of liability on the part of any Party hereto. 9. This Settlement Agreement constitutes the entire agreement between the Parties hereto, and the terms of this agreement are contractual and not a mere recital. 10. This Settlement Agreement may be executed in counterparts. 11. Each undersigned states that he or she has carefully read the foregoing Settlement Agreement and knows the contents thereof and signs the same of his, her or its own free act and will. The undersigned and each of them, warrant, represent and agree that, in executing this agreement, they do so with full knowledge of any and all rights which them may have, and that they have received independent legal advice from their attorney's and with regard to their assorted rights which they may have against each other, and which arise out of the facts alleged in the claim of damages. 12. All Parties and their counsel agree to cooperate in the preparation and execution of all documents called for by the terms of this Settlement Agreement, and this Court retains jurisdiction over the parties to enforce the settlement until fully performed. 13. Should any provision of this agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term, or provision shall be deemed not to be part of this agreement. Dated: 0112A-, 2c1 -- Plaintiff, kimberly Cerda Dated: ATTEST: Hated: City of Santa Ana, a charter law city and municipal corporation, duly organized and existing under the Constitution and law of t=ofis Gerardo Mouet, Acting City Manager City of Santa Ana, a charter law city and municipal corporation, duly organized and existing under the Constitution and law of the State of California _ '7;17 '4v'.<'� & Maria D.1-luizar, Clerk of th Council FERGUSON, PRAET & SHERMAN A Professional Corporation G. Craig Smith, Attorneys for Defendant City of Santa Ana Dated: '/ 1/J MAHONEY LAW GROUP, APC Treana A At rneys or aux