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HomeMy WebLinkAboutCORTEZ, MELISSA, A MINOR, BY AND THROUGH HER PARENT AND LEGAL GUARDIAN, ARTURO CORTEZ (2)A-2016.132 SETTLEMENT AGREEMENT AND RELEASE THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter "Agreement") is entered into and effective upon its execution by all parties hereto as a complete, final and binding settlement and compromise of all claims and potential claims, if any, between MELISSA CORTEZ, a minor, by and through her parent and legal guardian, ARTURO CORTEZ (referred to herein collectively as "CORTEZ" or "Plaintiff'), EL SOL SCIENCE AND ARTS ACADEMY OF SANTA ANA, a California Non -Profit Public Benefit Corporation, (referred to heroin as "EL SOL"), CITY OF SANATA ANA (referred to herein as "CITY"), and RAENETTE RODRIGUEZ (hereinafter referred to as "RODRIGUEZ'). EL SOL, CITY, and RODRIGUEZ are collectively also referred to as Defendants. This agreement is entered into by CORTEZ, by and through her parent and legal guardian, ARTURO CORTEZ, EL SOL, CITY, and RODRIGUEZ on their own behalf and on behalf of their spouses, parents, children, heirs, principals, parent companies, management companies, attorneys in fact, subsidiaries, affiliates, and their respective shareholders, directors, officers, employees, agents, insurors, attorneys, assigns, landlord, tenants, chartering districts, affiliateddistrictsor educational entities, predecessors, successors, and representatives. All entities and individuals named herein are collectively referred to as the "Parties" and singularly (generically) as a "Party.,' Y• RECITALS WHEREAS, CORTEZ has alleged that she suffered certain personal injuries as a result of an accident occurring on or about March 9, 2013 (hereinafter referred to as the "Incident"); WHEREAS, CORTEZ filed an action entitled Cortez v. El Sol Science & Arts Academy, et al„ Orange County Superior Court, Case No. 30-2014-00712370-CU-PA-CJC (hereinafter referred to as the 'Action'); WHEREAS, Defendants filed various cross -complaints for indemnity and contribution against each of the other Defendants in the Action; WHEREAS, CORTEZ has contended that the injuries she has sustained and the damages she has incurred were caused by the acts and/or omissions of various individuals and/or entities including, but not limited to, the Defendants; WHEREAS, Defendants have denied and continue to deny the causes of action, claims, contentions, acts, and omissions alleged by CORTEZ, and have denied and continue to deny any wrongdoing or legal liability arising out of or pertaining to any injuries and/or damages allegedly arising from the Incident; WHEREAS, the Parties now desire to resolve and settle all of their differences, including, but not limited to the Action and their respective cross -complaints; It1 A-2015-132 (4/6/16) SETTLEMENT AGREEMENT AND RELEASE THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE (hereinafter "Agreement") is entered into and effective upon its execution by all parties hereto as a complete, final and binding settlement and compromise of all claims and potential claims, if any, between MELISSA CORTEZ, a minor, by and through her parent and legal guardian, ARTURO CORTEZ (referred to herein collectively as "CORTEZ" or "Plaintiff'), EL SOL SCIENCE AND ARTS ACADEMY OF SANTA ANA, a California Non -Profit Public Benefit Corporation, (referred to herein as "EL SOL"), CITY OF SANTA ANA (referred to herein as "CITY"), and RAENETTE RODRIGUEZ (hereinafter referred to as "RODRIGUEZ"). EL SOL, CITY, and RODRIGUEZ are collectively also referred to as Defendants. This agreement is entered into by CORTEZ, by and through her parent and legal guardian, ARTURO CORTEZ, EL SOL, CITY, and RODRIGUEZ on their own behalf and on behalf of their spouses, parents, children, heirs, principals, parent companies, management companies, attorneys in fact, subsidiaries, affiliates, and their respective shareholders, directors, officers, employees, agents, insurers, attorneys, assigns, landlord, tenants, chartering districts, affiliated districts or educational entities, predecessors, successors, and representatives. All entities and individuals named herein are collectively referred to as the "Parties" and singularly (generically) as a arty. RECITALS WHEREAS, CORTEZ has alleged that she suffered certain personal injuries as a result of an accident occurring on or about March 9, 20 t 3 (hereinafter referred to as the "Incident"); WHEREAS, CORTEZ filed an action entitled Cortez v. El Sol Science & Arts Academy, et al., Orange County Superior Court, Case No. 30-2014-00712370-CU-PA-CJC (hereinafter referred to as the "Action"); WHEREAS, Defendants filed various cross -complaints for indemnity and contribution against each of the other Defendants in the Action; WHEREAS, CORTEZ has contended that the injuries she has sustained and the damages she has incurred were caused by the acts and/or omissions of various individuals and/or entities including, but not limited to, the Defendants; WHEREAS, Defendants have denied and continue to deny the causes of action, claims, contentions, acts, and omissions alleged by CORTEZ, and have denied and continue to deny any wrongdoing or legal liability arising out of or per to any injuries and/or damages allegedly arising from the Incident; WHEREAS, the Parties now desire to resolve and settle all of their differences, including, but not limited to the Action and their respective cross -complaints; P] NOW THEREFORE, in consideration of the foregoing and the following statements, covenants, promises, obligations and undertakings, it is mutually agreed by and between the Parties, as follows: SETTLEMENT TERMS 1. Procedural Matters: 1.1 Within 30 calendar days of executing this Agreement, if not already done so, CORTEZ shall cause to be prepared, and filed, and serve all the necessary and appropriate forms with the applicable Court so that the Court may hear CORTEZ's Petition for the Court's Approval of a Minor's Compromise according to the settlement outlined herein. 1.2 As soon as possible before, and no later than, the filing date of the Petition for the Court's Approval of the Minor's Compromise, CORTEZ shall provide, in writing, to all Parties' counsel: (1) the name, complete address, telephone number(s), and Federal TIN of each third party, if any, including, but not limited to, any healthcare professional(s) and/or healthcare facility or company, federal, state, local agency or entity that has, may have, or purports to have a statutory lien as to the outcome of this claim and/or the Settlement Amount; (2) the amount of all current liens, contracts, claims, obligations, debts, contracts, encumbrances, if any, by or with any third parties, including, but not limited to, any healthcare professional(s) and/or healthcare facility or company, federal, state, local agency or entity that has, may have, or purports to have a statutory lien as to the outcome of this claim and/or the Settlement Amount; and (3) the negotiated and discounted final amount, if different from those identified pursuant to Section 1.2(2), above, of each current lien, contract, claim, obligation, debt, encumbrance by or with any healthcare professional(s) and/or healthcare facility or company, federal, state, local agency or entity that has, may have, or purports to have a statutory lien as to the outcome of this claim and/or the Settlement Amount which said lien holder, or the like, has agreed to accept as full and final payment and satisfaction of any such liens, contracts, claims, obligations, debts, contracts, encumbrances. 1.3 All checks consistent with the Settlement Amount and any payments to any lien- holder(s), if any, will be held in trust by each respective payor Party's counsel until such time as required by this Agreement and the Court's approval of the Minor's compromise, when said checks will be transmitted to CORTEZ's counsel for distribution. 1.4 Within thirty (30) calendar days of the Court's approval of the Minor's compromise, the Settlement funds and any check(s) payable to any lien -holders, if any, will be contemporaneously exchanged for an executed Request for Dismissal, with prejudice, as to any and all cases, claims, causes of action and as to any and all parties. Within thirty (30) calendar days of the Court's approval of the Minor's compromise, all Parties agree to provide to counsel [2] for the cross-defendant(s) in each of their respective cross -complaints, Requests for Dismissal, with prejudice, as to their cross -complaints, dismissing all named and unnamed cross -defendants, and thereby releasing all of their claims as against all named and unnamed cross -defendants. 1.5 The Parties hereby acknowledge and agree that the settlement contemplated by this Agreement is subject to, and conditioned upon, the Court's approval of the Petition for the Court's Approval of the Minor's Compromise. 1.6 The Parties hereby acknowledge and agree that the settlement contemplated by this Agreement is further subject to, and conditioned upon, approval and ratification of this Agreement by the Board of Directors of EL SOL. 1.7 The Parties hereby acknowledge and agree that the settlement contemplated by this Agreement is also subject to, and conditioned upon, approval and ratification of this Agreement by the City Council of the CITY. 2. Settlement Amount: 2.1 In consideration of the statements, covenants, promises, obligations, undertakings, releases, and dismissals set forth in this Agreement, payment in the total suin of $375,000.00 (Three Hundred Seventy Five Thousand Dollars), present value, with the following breakdown: $250,000.00 (Two Hundred Fifty Thousand Dollars) on behalf of EL SOL, $100,000.00 (One Hundred Thousand Dollars) on behalf of CITY, and $25,000.00 (Twenty Five Thousand Dollars) on behalf of RODRIGUEZ, (hereinafter collectively referred to as the "Settlement Amount") will be made to CORTEZ according to the specifications set forth in subsection 2.2, below. 2.2 Payments In consideration of the release set forth in Section 5 below, the Defendants, through their insurers (California Charter Schools Joint Powers Authority DBA: CharterSAFE for EL SOL, and State Farm Mutual Automobile Insurance Companies for RODRIGUEZ, and the CITY for itself), and, in the event a Defendant is not insured, that Defendant (collectively referred to as "the Payers") agree to pay to Melissa Cortez (the "Payee") the sums outlined in this Section as follows: (a) Payments due at the time of settlement as follows: See Exhibit "A" (b) Periodic payments made according to the schedule as follows (the "Periodic Payments"): Payable to Melissa Cortez $25,000 annually, guaranteed 5 years, beginning on September 20, 2022. The last payment will be made on September 20, 2026. [31 $40,000 guaranteed lump sum payable at age 25 (on September 20, 2029). $71,000 guaranteed lump sum payable at age 30 (on September 20, 2034). All sums set forth herein constitute damages on account of personal injuries or sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 2.3 Payee's Rights to Payments Payee acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by Payee or any payee; nor shall Payee or any payee have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 2.4 Payee's Beneficiary Any payments to be made after the death of the Payee pursuant to the terms of this Settlement Agreement and Release shall be made to the Estate of the Payee. After the age of majority, Payee may submit a change of beneficiary in writing to the Assignee. The designation must be in a form acceptable to the Assignee. 2.5 Consent to Qualified Assignment (a) Payee acknowledges and agrees that the Payers may make a "qualified assignment", within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of the Payers' liability to make the Periodic Payments set forth in Section 2.2(b) to BHG STRUCTURED SETTLEMENTS, INC. ("the Assignee"). The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of Payers (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation. (b) Any such assignment, if made, shall be accepted by the Payee without right of rejection and shall completely release and discharge the Payors from the Periodic Payments obligation assigned to the Assignee. Payee recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and Payee agrees that such assignment shall constitute a full release and discharge of all of Payors' obligations relative to the Periodic Payments set forth above. 2.6 Right to Purchase an Annuity Payors, themselves or through BHG STRUCTURED SETTLEMENTS, INC. ("the Assignee"), reserve the right to fund the liability to make the Periodic Payments in Section 2.2(b) through the purchase of an annuity policy from BERKSHIRE HATHAWAY LIFE INSURANCE COMPANY OF NEBRASKA. The Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Assignee may have BERKSHIRE [41 HATHAWAY LIFE INSURANCE COMPANY OF NEBRASKA mail payments directly to the Payee. The Payee shall be responsible for maintaining a current mailing address for Payee with BHG STRUCTURED SETTLEMENTS, INC. 2.7 Discharge of Obligation The obligation of the Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee named in Section 2 of this Settlement Agreement. 2.8 All Parties to this Settlement Agreement hereby further agree that in the event of a Defendant's default or non-performance under this Agreement, such as for example non- payment and/or late payment of that Defendant's respective settlement funds identified in paragraphs 2.1, any such default or non-performance shall only be deemed as the defaulting/non- performing Defendant's breach of this Agreement, and any relief available to CORTEZ related thereto shall inure only as against the defaulting/non-performing Defendant, and such breach shall not affect the settlement and dismissal of this Action as to any other party herein. 3. Applicable Taxes, Fees, Withholding, Ability to Obtain Financing etc.: 3.1 CORTEZ acknowledges and agrees that Defendants and their counsel have not made, and do not make any representations herein concerning the taxable status of any of the payments set forth in this Agreement, and CORTEZ acknowledges and agrees that she has not relied and will not rely on any such representations, if any. 3.2 CORTEZ acknowledges and agrees that she will be solely responsible for any tax liability, or the like, that results from any of the payments set forth in this Agreement. 3.3 CORTEZ acknowledges and agrees that Defendants and their counsel have at no time prior to this settlement made any representations concerning the possible consequences of the Settlement Amount upon her or her parents' ability to obtain any financial aid, loans, grants, financing, etc., irrespective of the intended or actual use or purpose of any such financial aid, loans, grants, financing, etc. 4. Waiver of Fees and Costs: 4.1 The Parties separately and each agree that they shall bear their own attorney's fees and costs incurred in connection with this Action, including but not limited to: (1) the prosecution and/or defense of the Action, and the related cross -complaints; (2) the Parties' discussions and negotiations regarding the claims, contentions, acts, and omissions that have been separately alleged by CORTEZ and all claims related thereto; and, (3) the negotiation of this Agreement, and no further claims or demands related thereto shall be made. 5. Release: [si 5.1 In consideration for the statements, covenants, promises, obligations, dismissals, and undertakings set forth in this Agreement, CORTEZ shall and does hereby completely and forever release, absolve, acquit, relieve, and discharge EL SOL, CITY, RODRIGUEZ, and their principals, directors, officers, elected and appointed officials, attorneys in fact, management companies, shareholders, past and present employees, agents, representatives, business entities, fictitious business names, alter egos, partners, joint ventures, successors, affiliates, parent companies, member companies, subsidiaries, chartering districts, affiliated districts or educational entities (including, but not limited to the SANTA ANA UNIFIED SCHOOL DISTRICT), past and/or present students (and their parents and/or guardians, and specifically all those named as DOE and/or ROE defendants or cross -defendants in the Action), landlords, tenants, heirs, assigns, attorneys, and insurers (sometimes collectively referred to herein as "Released Parties"), from any and all claims, demands, obligations, actions, disputes, controversies, causes of action, rights, damages, judgments, orders, agreements, acts, indebtedness, liabilities, liens, promises, costs, loss of services, expenses (including, but not limited to, attorney's fees) and compensation of any kind or nature whatsoever, whether known or unknown, past or present, suspected or unsuspected, fixed or contingent, apparent or concealed, which CORTEZ now has or holds, or may have or hold, or which may hereafter accrue or otherwise be acquired, pertaining to any allegations, events, incidents, acts and/or omissions, and occurrences having taken place from the beginning of time through the date of execution of this Agreement, pertaining to, relating to, or arising out of the alleged acts/omissions that gave rise to the injuries and damages that gave rise to this settlement (i.e., the Incident and/or the Action), whether based on a tort, contract or any other theory of recovery or statute, and attorney's fees or costs, interest, punitive damages, penalties, or any other relief permitted by the California laws, or other state or federal case law or authority, and any other municipal, state, or federal statute, ordinance, or regulation, whether or not previously brought before any state or federal court or before any state or federal or any other government agency. 6. Waiver of Civil Code §1542: 6.1 CORTEZ represents and certifies that she has read, understands and expressly waives the following provisions of California Civil Code Section 1542: "A general release does not extend to claims which creditor does not (snow 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. " 6.2 CORTEZ understands and acknowledges that the significance and consequence of this waiver of California Civil Code Section 1542 is that even if she should eventually suffer additional damages or losses from the Parties' prior interactions, or should there exist other rmdisclosed obligations or liabilities existing between them, as well as their successors or assigns, she will not be able to make any claim for those damages, losses or obligations. Furthermore, CORTEZ acknowledges that she intends these consequences even as to claims for damages, losses or obligations that may exist as of the date of this Agreement but which she does not know exist, and which, if known, would materially affect her decision, either singularly or collectively, to execute this release, regardless of the cause of her lack of knowledge. [61 7. CORTEZ Solely Responsible For Liens and/or Claims of Third Parties To The Settlement Amount: 7.1 CORTEZ agrees that she is, and shall remain, solely responsible and liable for payment or satisfaction of any and all liens, contracts, claims, obligations, debts, encumbrances by or with any third parties, including but not limited to any healthcare professionals and/or healthcare facilities company, federal, state, local agency or entity that has, may have, or purports to have as to the outcome of this claim and/or the Settlement Amount, which in any way pertains to the allegations in this claim and/or Action, no matter when said lien, contract, claim, obligation, debt, encumbrance, was created, entered, incurred, or existed. 7.2 CORTEZ agrees to defend, indemnify and hold harmless Released Parties in the event that any healthcare professional(s) and/or healthcare facilities company, federal, state, local agency or entity, or any attorneys, at any time makes a claim, demand, files suit against, or otherwise pursues any of the Released Parties, to recover from it/them on any lien for medical services or payment of medical services that said third party may have against CORTEZ, her property, or to the Settlement Amount recited herein that arise from treatment for injuries alleged to be sustained in this claim or as part of this Settlement. 8. Binding on Heirs and Successors: 8.1 This Agreement shall be binding on and inure to the benefit of the Parties' past, present and future principals, spouses, parents, children, officers, elected and appointed officials, directors, stockholders, attorneys, agents, servants, trustees, representatives, business entities, fictitious business names, alter egos, joint ventures, employees, subsidiaries, shareholders, affiliates, management companies, partners, parent companies, insurers, attorneys, predecessors and successors in interest, heirs, landlords, tenants, and assigns, chartering districts (including, but not limited to the SANTA ANA UNIFIED SCHOOL DISTRICT), affiliated districts and educational entities, and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 9. No Admission of Liability: 9.1 It is understood and agreed that the Parties have entered into this Agreement solely for the purpose of avoiding the burden and expense of further litigation, and the making of this Agreement is not and shall not be construed as an admission of liability or violation of any law by any Party. This Agreement is neither a concession nor an admission, and shall not be used against any of the Released Parties as an admission or indication with respect to any claim of any fault, concession or omission by any of the Released Parties. 9.2 This Agreement shall be governed by California Evidence Cade § 1152 and case law interpreting its provisions. This Agreement, any statements or conduct made in the course of negotiation thereof, and any and all terms set forth herein, shall not be admissible (at any time and for any purpose or reason other than as provided herein) in any subsequent litigation, action [71 or other legal or equitable proceeding. The Parties agree that this Agreement shall not be construed as, offered or admitted in evidence as, received as, or deemed to be evidence for any purpose adverse to the named and unnamed parties released by and through this Agreement including, but not limited to, evidence of a presumption, concession, indication, or admission by any of the parties released by and through this Agreement of any liability, fault, wrongdoing, omission, concession, or damage. Without waiving the agreement concerning admissibility, the Parties agree that a copy of this Agreement may be used in a subsequent action or proceeding brought to enforce the terms of this Agreement or to be used as proof of settlement and a release thereof of all claims as identified herein. 10. Representations and Warranties: 10.1 The Parties warrant, represent, and agree that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action that form the basis of the claim against the parties released by and through this Agreement, Released Parties to any other claim, contention, act, or omission that has been separately alleged by CORTEZ in connection with the subject Incident and/or Action; that the Parties have the sole right and exclusive authority to execute this Agreement; and that the Parties have not sold, assigned, subrogated, transferred, conveyed, or hypothecated, or purported to assign, subrogate, transfer, or hypothecate, to any other person or entity, any damages, suits, claims, debts, wages, compensation, demands, assessments, obligations, liabilities, attorney's fees, costs, expenses, rights of action or causes of action released herein. 11. Non -Disparagement: 11.1 In consideration of the covenants, promises and agreements contained in this Agreement, each of the Parties separately warrants and agrees that she/it will not make any written or oral statement or engage in any conduct that disparages, criticizes, maligns, blames, defames, libels, or slanders the image or reputation of the other, including, but not limited to, any of their past or present subsidiaries, customers, clients, member companies, affiliates, parent companies, officers, elected and appointed officials, directors, agents, or employees. 12. Integration/Modifieation & No Inducement: 12.1 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and is a final and complete expression of the intention of the Parties hereto. No representations, promises, monetary payments or inducements have been made by any Party, other than those set forth in this Agreement. Any and all prior negotiations, communications, discussions, representations or promises of any kind, whether oral or written, concerning the subject matter of this Agreement are superseded hereby and shall be considered without any legal force or effect. This is a fully integrated Agreement. This Agreement is not subject to oral modification. This Agreement may be modified, altered, amended or changed only by a writing signed by all Parties hereto. 12.2 The Parties declare and represent that no promises, inducements or other agreements not expressly contained herein have been made and that this Agreement contains the [81 entire agreement between the Parties and the terms of this Agreement are contractual and not mere recitals. 13. Severability: 13.1 Each and every provision of this Agreement is separate and distinct from any and all other provisions of this Agreement. Should any provision or provisions of this Agreement be for any reason unenforceable, the balance shall nonetheless be of full force and effect. Any provision shall only be deemed invalid to the extent of the scope or breadth permitted by law. 14. Remedies: 14.1 The Parties acknowledge and agree that money damages would not be sufficient remedy for any breach of this Agreement and that the Parties shall be entitled to specific performance and injunctive relief to enforce the provisions of this Agreement or to remedy a breach or threatened breach of this Agreement. Such remedies shall not be deemed the exclusive remedies for a breach of this Agreement, but shall be in addition to all remedies available at law or in equity, including, without limitation, the recovery of damages and attorneys fees. 15. No Publicity: 15.1 In consideration of the statements, covenants, promises, obligations, undertakings, releases, dismissals, and agreements contained in this Agreement, CORTEZ and her counsel agree that they shall not take any action to publicize the resolution of the Action or the terms of this Agreement, including, but not limited to, speaking with the media, issuing press releases, or reporting to any verdicts/settlements publications. 16. Medicare Eligibility: 16.1 By executing this Agreement, CORTEZ acknowledges that at no time was she a Medicare beneficiary as it pertains to any of the allegations set forth in this claim and/or the Action, or any alleged damages and/or injuries arising from any act and/or omission that gave rise to this claim and/or the Action; at no time while this claim and/or the Action has been pending has she been a Medicare beneficiary as it pertains to any of the allegations set forth in this claim and/or the Action, or any alleged damages and/or injuries arising from any act and/or omission that gave rise to this claim and/or the Action; and based on the advice of her healthcare advisors to date, she does not reasonably anticipate becoming a Medicare beneficiary at any time in the future as it pertains to any of the allegations set forth in this claim and/or the Action or any alleged damages and/or injuries arising from any alleged act and/or omission that gave rise to this claim and/or the Action. 16.2 By executing this Agreement, CORTEZ agrees to indemnify, defend and hold harmless Released Parties and each of them to the fullest extent allowed by law in the event Medicare asserts liens/subrogation claims/penalties or any other claims against any of the Released Parties related to any past or future medical treatment received by CORTEZ. 191 16.3 By executing this Agreement, CORTEZ agrees to complete the applicable Medicare Beneficiary Questionnaire, disclosing whether she was a Medicare beneficiary at the time prior to making this claim, while this claim has been pending, or whether CORTEZ anticipates becoming a Medicare beneficiary at any time prior to this settlement being finalized, whether or not related to claims arising from this claim and/or the Action, and CORTEZ agrees that EL SOL, RODRIGUEZ, and the CITY will not process any check or settlement request unless and until EL SQL's, RODRIGUEZ's, and the CITY's counsel have received the information requested. 17. No Other Lawsuits or Complaints: 17.1 CORTEZ covenants and warrants that, except for the Action, she has not filed, or caused to be filed, any formal or informal complaint, grievance, or the like, against EL SOL or any of the Released Parties regarding any of the allegations asserted in this claim with any local, state, federal, or private agency. 17.2 hi the event CORTEZ has filed, or caused to be filed, any complaint, grievance, or the like, against EL SOL, or any of the Released Parties regarding any of the allegations asserted in this claim with any local, state, federal, or private agency, then CORTEZ further covenants and warrants that she will take all necessary measures to withdraw, cancel, and/or dismiss any such complaint, grievance or the like. 17.3 CORTEZ further covenants and warrants that she will not at any time after the execution of this Agreement file, or cause to be filed, any formal or informal complaint, grievance, or the like, against EL SOL, or any of the Released Parties, regarding any of the allegations asserted in this claim or the Action, that are the subject of this Agreement with any local, state, federal, or private agency. 18. Governing Law: 18.1 The validity and enforcement of this Agreement, and any of its terms or provisions, as well as the rights and duties of the Parties, shall be governed by the laws of the State of California. 19. Attorney's Fees, Jurisdiction, Enforceability Of Settlement Agreement and Venue: 19.1 Any action or proceeding to enforce or interpret this Agreement shall be commenced in the Superior Court of the State of California, County of Orange, which the Parties agree shall be the proper jurisdiction and venue for such action. In the event of any such action, the prevailing party (as determined by the court) shall be entitled to reasonable attorney's fees and costs, in addition to any other relief to which the prevailing party may be entitled. 19.2 Each of the Parties has entered into this Agreement with the specific understanding that it is enforceable by the court in which the Petition for Court's Approval of the Minor's Compromise will be filed. Such court shall retain jurisdiction and this settlement may [10] be enforced pursuant to California Code of Civil Procedure section 664.6, in the event any party fails to perform the conditions or terms required herein. 20. Further Assurances: 20.1 The Parties agree to cooperate fully and execute and deliver such further documents or instruments, and perform such other acts as may be necessary or appropriate to effectuate the intent of this Agreement. 21. Non -Waiver: 21.1 The failure of the Parties hereto to insist, in any one or more instances, upon strict performance of any one or more of the provisions, terms, and/or conditions of this Agreement, or to exercise any rights hereunder, shall not be construed as a waiver thereof, and any and all such provisions, terms, conditions, and/or rights shall continue and remain in full force and effect. 22. Headings: 22.1 The headings contained in this Agreement are inserted as a matter of convenience only, and in no way define, limit, or extend the scope of the Agreement or any provision herein. 23. Jointly Drafted: 23.1 This Agreement has been drafted jointly and is not to be construed against any party. The Parties aelmowledge that this Agreement has been negotiated at arm's length among persons Imowledgeable in the matters herein. Accordingly, any rule of law including without limitation California Civil Code § 1654, or any other statute, legal decision, or common law principle of similar effect, that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is of no application and hereby is expressly waived. This Agreement and its provisions shall be interpreted in a reasonable manner to effectuate the Parties' intentions. 24. Voluntary Settlement After Consultation with Lawyer: 24.1 The Parties warrant, represent and agree that they have carefully read this Agreement, understand this Agreement and all terms thereof, and are executing this Agreement with full Icnowledge of any and all rights that they may have with respect to the matters set forth and the claims released herein. The Parties acknowledge that they have each been represented by legal counsel or have had the opportunity to be represented by legal counsel in the negotiation and preparation of this Agreement, and the Parties enter into this Agreement freely, without coercion, and based upon the Parties' own judgment. 25. Execution in Counterparts / Facsimile Signatures / Copies: 25.1 This Agreement may be signed in any number of counterparts and by each Party on separate counterparts, each of which when so executed and delivered to the other shall be deemed an original and all of which taken together shall constitute one and the same instrument. A copy of this executed Agreement shall have the same force and effect as the original. A facsimile signature shall have the same force and effect as an original. IN WITNESS HEREOF, the Parties have executed this Agreement on the dates indicated below. This Agreement shall become effective immediately following execution by each of the Parties. Dated: Dated: Dated: MELISSA CORTEZ, a minor, by and through her parent and legal guardian, ARTURO CORTEZ Defendant, EL SOL SCIENCE & ARTS ACADEMY OF SANTA ANA By: Its: J CITY F SANTA ANA By {ictJld CA9g7_66 Its: c;� v cw�a�e� APR 0 6 2016 RAENETTE RODRIGUEZ [121 ATT98r �-M�R c7 �'' 016 MARIA 11. HUI�I�7 APR 0 6 2 CLERK OF THE COUNCIL APPROVED AS TO FORM: Dated:---- — Law Offices of Gary A. Dordick By: Gary A. Dordick, Esq. Attorney for Claimant/Plaintiff, MELISSA CORTEZ, a minor, by and through her parent and legal guardian, ARTURO CORTEZ Dated:_ —_—____a Law Offices of Fabian C. Serrato By:_ _ Fabian C. Serrate, Esq. Attorney for Claimant/Plaintiff, MELISSA CORTEZ, a minor, by and through her parent and legal guardian, ARTURO CORTEZ Dated: _ SEPASSI & TARIGIdATI, LLP Steven M. Sepassi, Esq. Mitchell M. Tarighati, Esq. Attorneys for El Sol Science & Arts Academy of Santa Ana Dated: _-Z i11� Gutierrez, Fierro & Erickson, APC By' — �!' --- Arturo Fierro, sc Attorneys for 'it. of Santa Ana Dated: _- Gates O'Doherty Gonter & Guy LLP By:___K. Robert Gonter, Esq. Attorneys for Raenette Rodriguez [131 EMAIL TRANSMISSION March 14, 2016 Arturo Fierro Gutierrez Fierro & Erickson APC 12616 Central Ave Chino, CA 91710 RE: Melissa Cortez vs. Sol Academy, et al. Our File No.: 0630000830 Dear Mr. Fierro: EPS Settlements Group People You Need fir Raulo You Wen• It is my understanding that a settlement has been reached in the above referenced case on a structured settlement basis. We are pleased that EPS Settlements Group has the opportunity to assist you in completing this case. To purchase the benefits outlined on the following page, please send us the following check: Payable to: BHG Structured Settlements, Inc. Amount: $43,645.43 Tax I.D. No.: 47-0793577 Please send the premium check to the following address: EPS Settlements Group, Attn: Arlriana Irwin, 33989 Galleron St., Temecula, CA 92592. Please provide us with the check no later than April 4, 2016. While the check should be sent to our address, here is Berkshire Hathaway Life Insurance Company of Nebraska's address for your accounting records: Berkshire Hathaway Life Insurance Company of Nebraska, Structured Settlements Unit, 1314 Douglas Street, Suite 1400, Omaha, NE 68102-1944. The annuity policy, which is being purchased from Berkshire Hathaway Life Insurance Company of Nebraska, will be owned by BHG Structured Settlements, Inc. To ensure expeditious processing of the above referenced case, we have enclosed the following document, which the life insurance company requires before issuing the policy. Uniform Qualified Assignment and Release. Please have an authorized representative of The City of Santa Ana sign page 5, initial page 6 and return a copy to my attention. Fully executed copies will be returned to you with the duplicate annuity policy. I will be handling the processing of this case and will keep you apprised of the outstanding documentation. I look forward to working with you on this case. Once the life insurance company has approved all the documentation, the annuity policy should be issued within 45 to 60 days. I look forward to working with you on this case. Please feel free to call me with any questions at (951)240-7698. Sincerely, Aa ri.a l rwi o, Adriana Irwin, EPS Settlements Group c: Steven Sepassi - Sepassi & Tarighati, LLP Willis King - Gates, O'Doherty, Gonter & Guy, LLP Qualified Assignment and Release Agreement In Accordance With Internal Revenue Cote Section 130 "C18117100 S)": N40892 Cottez, a minor, by and through bar Guardian Ad Litem Arturo Cortez "Assignor"; California Charter Schools Joint Powers Authority DBA: CharterSAFE; City of Santa Ana; State Farm Mutual Insurance Companies "Settlement Agreemeni": [Exact title of Settlement Agreement or Order] "Governing L.arvv'": Oalffarnla "Assignee": BEG ST11C7C?T'TRED ,">FTTS,B:NFETS, 7ttG. "Annuity Issuer srrrstMIRF HATHAWAY UrE aasuzxsracrr coMznWT or NEBRA&KA "Effective t WI, "Payee($)"'.As shown in Addendun: No. 1, nesoriLt am of i�rri0d1c to tents Annuity Contract No: This Qualified Assignment and Release Agreement CAgreement") Is made and entered into as of the Effective Date by and among the undersigned parties with reference to the following facts: A. Claimants) and Assignor are parties to or are otherwise subject to the above - referenced Settlement Agreement under which Assignor has liability to make certain periodic payments to the designated Payee(s)-as specified in Addendum No. 1 of this Agreement (the "Periodic Payments"), Where no Payee(s) other than Claimants) are shown in Addendum No. 1, it is understood that any references herein to Payee(s)shall apply to Claimant(s); B. Assignor and Assignee wish to effect a "qualified assignment" within the meaning and subject to the conditions or Section 130(c) of the Internal Revenue Code of 1086, as amended (the "Code"). C. This Agreement will be effective contingent upon Assignee's receipt of the full premium to fund the Periodic Payments contained herein. Now, thoreforo, in consideration of the foregoing and for other good and valuable consideration, the parties agree as follows: 1. Assignment and Assumption; Release of Assignor. Assignor hereby assigns to Assignee, and Assignee hereby accepts and assumes, all of Assignor's liability to make the Periodic Payments. Each Claimant hereby accepts and consents to such assignment by Assignor and assumption by Assignee. Effective on the Effective Date, each Claimant hereby releases and discharges Assignor from all liability to make the Periodic Payments, including the failure of Assignee to make any of the Periodic Payments and/or Annuity issuer to fund any of the Periodic Payments for any reason whatsoever. g. Nature of Periodic Payments, The Periodic Payments constitute: i, damages (other than punitive damages), whether by suit or agreement, or H. compensation under a workers' compensation act, on account of personal injury or sickness in a case involving physical injury or physical Sickness, within the meaning of Sections 130(c) and 104(a) of the Code. 3. Extent of Assignee's Liability. Assignee's liability to make the Periodic Payments shall be no greeter than the liability of Assignor as $$-1000 (12/2013) IS] Page 1 of of the Effective Data. Assignee is not required to set aside specific assets to secure the Periodic Payments, Claimant(s), Payee(s) and Successor Payee(s) have no rights against Assignee greater then those of a general creditor. Assignee assumes no liability other than the liability to make the Periodic Payments. Assignee's liability to make the Periodic Payments shall be unaffected by any bankruptcy, insolvency; liquidation or rehabilitation of Assignor. 4. Qualified Funding Asset. Assignee will fund the Periodic Payments by purchasing from Annuity Issuer a "qualified funding asset/ as defined in Section 130(d) of the Code, in the form of an annuity contract (the "Annuity*) issued by Annuity Issuer and providing, for payments corresponding to the Periodic Payments. Assignee shall be designated as the owner of the Annuity. All rights of legal ownership and control of the Annuity shall (subject to paragraph 9 of this Agreement) be and remain vested exclusively In Assignee, provided, however, that the Annuity shall be used by Assignee to fund the Periodic Payments and shall at all times be designated by Assignee on its records as being taken Into account, under Section 130 of the Code, with respect to this Agreement. Notwithstanding anything to the contrary contained in this Agreement, neither any Claimant, any Payee, nor any of this Agreement) shall have any rights with respect to the Annuity or the payments thereunder that would cause any amount attributable to the Annuity to be currently includable in the reetpienk's income or would otherwise affect the determination of when any recipient is treated as having received any payment for income tax purposes, or would otherwise prevent this Agreement from satisfying all of the conditions for a "qualified assignment" within the meaning of Section 130(c) of the Code. 5. Delivery of Payments. Assignee may instruct Annuity Issuer to send payments directly to Payee or Successor Payee: or to deliver payments by electronic funds transfer ("EFT) to an FDiC-insured depository institution in the United States for credit (directly or indirectly) to an insured account in the name of such Payee or Successor Payee. Such direction of payments under the Annuity shelf not be deemed to afford Claimant, Payee or any Successor Payee any rights of ownership or control of the Annuity. apprisedd of such Claimant`s. Payee's or Successor Payee's current mailing address and telephone number and, if Payee or Successor Payee receives payments by EFT, the name, address, ABA routing number and telephone number of the applicable U.S. financial institution and the account name and account number to wrhhich the payments are to be credited. Such notices shall be In a form provided by Annuity Issuer and must be received at least thirty (30) days prior to the date payment is due. B. Discharge of Liability. Assignee's liability to tricks each Periodic Payment to any Payee or Successor Payee designated to receive such payment shall be fully discharged upon:. i. the rustling of a valid check on or before the due date for such payment to the address of record specified by Payee or Successor Payee; or li. the initiation of an EFT payment on or before the due date for such payment to the United Sates financial institution account designated by Payee or Successor Payee If Payee or Successor Payee does not receive a scheduled payment by check, Payee or Successor Payee shall notify Assignee. Upon receipt of such notification, Assignee shalt initiate a stop payment action for such check and upon confirmation that such check was not previously negotiated shall promptly mail a replacement check; or Each Claimant, Payee and any Successor Payee shall at all times keep Annuity issuer SS-1000 (M013) IS) Page 2 of If Payee or Successor Payee does not receive a scheduled EFT payment Payee or Successor Payee shalt notify Assignee. Upon receipt of such notification, Assignee shay Initiate a trace for such payment and upon confirmation that such payment was not credited to the account shall promptly issue areplacement EFT payment. Acceleration, Transfer of Payment Rights. None of the Periodic Payments and no rights to or interest in any of the Periodic Payments (all of the foregoing being hereinafter collectively referred to as "Payment Flights") can be 1. Accelerated, deferred, increased or decreased by any recipient of any of the Periodic Payments; or ii. Sold, assigned, pledged, hypothecated or otherwise transferred or encumbered, either directly or indirectly, unless such sale, assignment, pledge, hypothecation or other transfer or encumbrance (any such transaction being hereinafter referred to as a "Transfer") has been approved in advance In a "Qualified Order" as defined in Section 5891(b)(2) of the Code (a "Qualified Order") and otherwise complies with applicable state law, including without limitation any applicable state structured settlement protection statute. No Claimant, Payee or Successor Payee shall have the power to effect any Transfer of Payment tights except as provided in sub -paragraph (li) above, and any other purported Transfer of Payment Rights shall be wholly void, Invaild and unenforceable. If Payment Rights under this Agreement become the subject of a Transfer approved In accordance with sub• paragraph (ii) above the tights of any direct or Indirect transferee of such Transfer shall be subject to the terns of this Agreement and any defense or claim in recoupment arising hereunder. 8. Contingent Beneficiaries, Any Periodic Payments to be made after the death of any Claimant, Payee or Successor Payee shall be made to such party as shall have been designated in, or in accordance with; the Settlement Agreement or, if the Settlement Agreement does not provide for such designation, then to the party designated 'in conformity with this paragraph 8. Any party so designated is referred to in this Agreement as a "Contingent -Beneficiary," if no Contingent Beneficiary is living at the time of the death of a Claimant, Payee or Successor Payee, payment shall be made to the decedent's estate unless otherwise provided in the Settlement Agreement. As used in this Agreement the term "Successor Payee" refers to a Contingent: Beneficiary or an estate that 'has become entitled to receive Periodic Payments following the death of a Claimant, Payee or a Successor Payee. Except where a designation has been made in the Settlement Agreement, no designation or change of designation of a Contingent Beneficiary shalt be effective unless such designation or change (i) is requested in a written request submitted to Assignee in accordance with Assignee's customary procedures for processing such payment made prior to receipt of the request or so soon thereafter that payment could not reasonably be stopped: Except for a designation that is expressly identified in the Settlement Agreement as irrevocable, any designation of a Contingent Beneficiary shall be deemed to be revocable; and no party that is designated as a Contingent Beneficiary (other than a party irrevocably designated as a Contingent Beneficiary in the Settlement Agreement) shall, solely by virtue of its designation as a Contingent Beneficiary, be deemed to have any cognizable interest in any Periodic Payments. 0Termination of Settlement Agreement i Failure to Satisfy Section 130(c). If at any time prior to completion of the Periodic Payments, the Settlement Agreement Is declared terminated in a final, non - appealable order of a court of competent jurisdiction (or in the case of a workers' compensation settlement, a final order of the applicable workers' compensation authority) or if it is determined in any final order or ruling that the requirements of Section 130(c) of the Code have not been satisfied in connection with this Agreement: () the assignment by Assignor to Assignee of the liability to make the Periodic Payments and Assignee's acceptance of such assignment shall be of no force or effect; (it) Assignee shalt be conclusively deemed'to be acting as the agent of Assignor; (III) the Annuity shall be owned by Assignor; (Iv) in the event the Settlement Agreement is not terminated, Assignor shall retain the liability to make the Periodic Payments; (v) Assignee shall have no liability to make any Periodic Payments; and (vi) the parties hereto agree to cooperate In taking such actions as may be necessary or appropriate to implement the foregoing. 10, Govelrning Law, Binding Effect . This Agreement shall be governed by and interpreted in accordance with the Internal taws of the state identified as Governing Law above; provided, however, that any Transfer of Payment Rights under this Agreement may be subject to the taws of other states in addition to the state designated above. it This Agreement shalt be binding upon the parties hereto and their respective successors, heirs, executors, administrators and permitted assigns, Including without limitation any parry asserting an interest in Payment Rights, 11. Advice, Comprehension of Agreement. In entering into this Agreement, each Claimant warrants, represents and agrees that Claimant is solely relying on the attorneys and advisors of such Ciairnant's own choosing, and not upon Assignor, Assignee or their advisors, for advice regarding the legal, government benefits and tax SS-1000 (1212013) IS] Page 3 of 6 consequences of this Agreement. Each 12 Future Cooperation. All parties agree to Claimant further warrants, represents and cooperate fully and to execute any and all agrees that the terms of this Agreement supplementary documents and take all have been completely read by and additional actions, which are not inconsistent explained to such Claimant and are fully with its terms, which may be necessary or understood and voluntarily accepted by such appropriate to give full farce and effect to the Claimant. Furthermore, each Claimant terms and Intent of this Qualified hereby releases and discharges Assignor, Assignment and Release Agreement Assignee, Annuity Issuer, their affiliates and Pursuant to its obligations under this their respective employees and advisors paragraph 12, and without limitation, ("Releasees") from any and all claims, Assignor shall promptly provide Assignee rights, damages, costs cr expenses of any with copies of any required court approval nature whatsoever that such Claimant now with respect to the underlying settlement has or may have in the future against such and executed copies of all required Releasees (1) with respect to the present settlement documents, and future taxation of this Agreement or the 13, Coscription of Periodic Payments, The Periodic Payments; or (ii) the impact that periodic Payments are as set forth in this Agreement or the Periodic Payments attached Addendum No. 1, which is hereby may have on Claimant's eligibility for, and incorporated in and made -a part of this the quantum of, any governmental benefit Agreement. payments. SS-1000 0212013),is) Page of In the event of any conflict between this Agreement and the Settlement ,Agreement with respect to the Periodic Payments or the assignment made herein, the terms and corm tlons of this Agreement shall prevail. This Qualified Assignment ante RoleasoAgreement may be signed in one or more countorperts. California Charter Schools Joint Assignor: Powers Authority DBA: CharterSAFE Assignor: City of Santa Ana APR By: p1, y _ Tltle:JOltii0. CNO-)-6 �. # ayt 1 e r Assignee: Assignor: State Farm Mutual Insurance Companies BfIG Structured Set',U,ement;s, Inc. By: Claimants} or Payee(s): E3y: Melissa Cortez, a minor, by and through her Guardian Ad Litem Arturo Cortez Attorney for laimant(s): 66- 000 (12=13) 181 Page 5 of 6 Authorized Representative ATTEST. C�KfEROTH®UN4 06 2016 APR 0 6 2916 Addendum No. 1 Description of Periodic Payments Payee: Melissa Cortez 25,000 annually, guaranteed 5 years, beginning on September 20, 202Z The last payment will be made on September 20, 2025 $40,000 guaranteed lump sum payable on September 20, 2029 {at age 26) $71,000 guaranteed lump sum payable on September 20, 2034 (at age 30) Assignor: California Charter Schools Joint Powers Authority DBA: CharterSAFE Assignor: G City of,SanfaAna j�au;d Cadgz4S Assignor: State Farm Mutual Insurance Companies Assignee. l3HG Struvtured Settlements, Inc. Claimant or Payee: felissa Cortez, a minor, by andthrough heir Gufardiark Ad Utem Arturo Cortez Attorney for Claimant: Gary A, Dordick SS•1000 (12/2013) [SI. Page 6 of 6 APR 0 6 2019 � k \ \ R ®ko rqm & � #� G ) § § { ) § \ \ \ / \ N kko8 ƒ 6 \ k ® Ln q to \ / \ " ® ° e \ / /0 $f/ \ f ° j*` m %M I t » ( ¥ �E k e e _ =�FMm ® \ \\\ vlo Q) 2/s§% /{ \ \\ k (�J ƒƒ 0 * /5\0 } \\ 0 \| ± /§ »» z»+ \} «= a3uxIT » #a (