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Home My WebLink AboutMEZA-GOMEZ, FELIX AND UNION PACIFIC RAILROAD COMPANYA-2020-151 INSURANCE NOT REQUIRED WORK HAY PROCEED CLERK OF COUNCIL. 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 FELIX IvIEZA-GOMEZ (hereinafter "Plaintiff'), the CITY N OF SANTA ANA (hereinafter "City"), and UNION PACIFIC RAILROAD COMPANY ® (hereinafter "Union Pacific"). cl i —i WITNESSETH: _j WHEREAS, Plaintiff filed an action against City and Union Pacific in the Superior Court of the State California, County of Orange, Central Justice Center, styled FELDC MEZA- GOMEZ v. UNION PACIFIC RAILROAD COMPANY, et al., Case No. 30-2018-01023065-CU- PO-CJC. WHEREAS, on January 22, 2019, City filed a cross complaint against Union Pacific for equitable indemnity, contribution, and declaratory relief. WHEREAS, on February 27, 2019, Union Pacific filed a cross complaint against city for equitable indemnity, contribution, apportionment, declaratory relief and implied contractual indemnification. WHEREAS, the City's and Union Pacific's respective cross complaints were consolidated into the same pending litigation as filed by Gomez. All complaints will be collectively referred to as the "Action" for the purposes of this Agreement. WHEREAS, Plaintiff, City, and Union Pacific (collectively, the "Parties"), desire to settle fully and finally all differences between them, including, but in no way limited to, those differences set forth in the Action. 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 City or Union Pacific of any liability whatsoever, or as an admission by City or Union Pacific of any violation of the rights of Plaintiff or any person, or violation of any order, law, statute, duty, or contract whatsoever against Plaintiff or any person. C i t y a n d U n i o n P a c i f i c 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 City or Union Pacific. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by any of the Parties of any liability, misconduct, or wrongdoing whatsoever. SECOND: (a) Each party will exchange a fully signed executed copy or original of this Agreement. N e i t h e r C i t y nor Union Pacific can proceed with processing payment as set forth herein without first receiving 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 from Plaintiff dismissing this Action with prejudice, C it will make available a check in the amount of One Hundred Twenty -Six Thousand Eight Hundred Fifty Dollars ($126;850) made payable to "FELIX MEZA-GOMEZ AND THE LAW OFFICES OF GENE J. GOLDSMAN." and Union Pacific will make available a check in the amount of Two Hundred Thousand Dollars W00,000) made payable to "FELIX MEZA- GOMEZ AND THE LAW OFFICES OF GENE J. GOLDSMAN." City will file the Request for Dismissal of Plaintiff's claims after delivering the check. Plaintiff, City and Union Pacific agree that this Agreement constitutes full and complete settlement of all claims and damages made against City and Union Pacific in the 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. Further, upon receipt of Plaintiffs Request for Dismissal, City and Union Pacific will each prepare and file a Request for Dismissal with prejudice of their respective cross complaints brought against one another. City and Union Pacific will not seek any fiirther compensation against one another for any other claimed damages, costs, or attorneys fees in connection with the matters encompassed in this Agreement. (c) Each party to this Agreement sball bear its own attorneys' fees and costs incurred in connection with this Action, including costs for the settlement negotiations. (d) Plaintiff acknowledges and agrees that City and Union Pacific have made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that he alone is liable for all taxes, if any, which are owed by him on any amount received hereunder including interest and penalties. Plaintiff will hold City and Union Pacific harmless from any and all claims made by federal, state, or local taxing authorities or lien holders who identify liens for amounts owed by Plaintiff related to the facts that gave rise to the Action. THIRD: (a) Plaintiff represents that, with the exception of the 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 City including any of its officers, agents, directors, supervisors, employees, or representatives with any state, federal, or local agency or court and that he will not do so at any time hereafter as it relates to the Action. Plaintiff further represents that if any agency or court assumes jurisdiction of any complaint, claim, or action against City on Plaintiff's behalf, Plaintiff will direct that agency or court to withdraw and dismiss with prejudice the matter. (b) Plaintiff represents that, with the exception of the Action, he has not filed any complaints, claims, or actions against Union Pacific including any of its officers, agents, directors, supervisors, employees, or representatives with any state, federal, or local agency or court and that he will not do so at any time hereafter as it relates to the Action. Plaintiff further represents that if any agency or court assumes jurisdiction of any complaint, claim, or action against U n i o n P a c i f i c on Plaintiff s behalf, Plaintiff will direct that agency or court to withdraw and dismiss with prejudice the matter. E (c) City represents that, with the exception of the Action, it has not filed any complaints, claims, or actions against Union Pacific including any of its officers, agents, directors, supervisors, employees, or representatives with any state, federal, or local agency or court and that it will not do so at any time hereafter as it relates to the Action. City further represents that if any agency or court assumes jurisdiction of any complaint, claim, or action against U n i o n P a c i f i c on its behalf, City will direct that agency or court to withdraw and dismiss with prejudice the matter. (d) Union Pacific represents that, with the exception of the Action, it has not filed any complaints, claims, or actions against City, including any of its officers, agents, directors, supervisors, employees, or representatives with any state, federal, or local agency or court and that it will not do so at any time hereafter as it relates to the Action. Union Pacific further represents that if any agency or court assumes jurisdiction of any complaint, claim, or action against C it y on Union Pacific's behalf, it will direct that agency or court to withdraw and dismiss with prejudice the matter. FOURTH: 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." FIFTH: Notwithstanding the provisions of Civil Code section 1542, each party hereby irrevocably and unconditionally releases and forever discharges each other parry 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, liens (including but not limited to, Medicare liens), 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. SIXTH: The Parties hereto represent that they have 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 discussed them with legal counsel. The Parties hereby warrant that they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. 3 SEVENTH: 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. EIGHTH: 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. NINTH: Any dispute arising from this Agreement shall be brought before and resolved by any court of competent jurisdiction in California. Should any provision of this Agreement be declared or be determined by a California court 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. Should any party seek to enforce the terms of this Agreement, it shall be entitled to recover its reasonable costs, expenses, and attorneys' fees, including without limitation, expert witness fees. TENTH: 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. ELEVENTH: 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. TWELFTH: 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. // // // // // // // // // // h1I1; Detect 7/1u12CZQ DEFENDANTS: Felix Meu-Gomez UNION PACIFIC RAILROAD COMPANY Dated: 7/8/2020 By: AhX4, C—da'C,4� Rahme Edwards Manager I Dated: 7 - / 7 - 2-OW 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 By: Kristine Ri ge City Manager 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: -7-ao'��1� By: Daisy Gomez Clerk of the Council // // // // // // // // // F APPROVED AS TO FORM: Dated: Dated: KWX July 08, 2020 Dated: July 10, 2020 LAW OFFICES OF GENE J. GOLDSMAN 1 i'cl' L TY. JV aa4dY1.a m Micha Goldsman, Esq. Attorney for Plaintiff Felix Meza-Gomez UNION PACIFIC RAILROAD COMPANY Megan M. Holbrook, General Attorney Attorney for Defendant Union Pacific Railroad Company SANTA ANA CITY ATTORNEY TALLEY & TALLEY LAW, APC cultC� .L-. %a�ey Cristina L. Talley, Esq. Attorneys for Defendant City of Santa Ana