The URL can be used to link to this page

Home My WebLink AboutMCPECK, KIM ItvSDRANCE NOT REQUIRED WORK Wf PROCEED A-2025-143 CITY CLERK DATE: AUG Z $ 'P' o cAro i 1yt) tauru4f5inti (Dz) SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") is made and entered into by and between KIM McPECK ("Plaintiff'), and the CITY OF SANTA ANA ("Defendant"). T WHEREAS, Plaintiff filed an action against Defendant in the Superior Court of the State California, County of Orange,Central Justice Center District known as KJ_AI McPECK v. CITY OF SANTA ANA, Case No.30-2024-01370874 (the"Action"). WHEREAS, Plaintiff and Defendant (collectively, the "Parties"),desire to settle fully and finally all differences between them, including,but in no way limited to,those differences described above. This Agreement hereby documents a global settlement between the parties of all issues arising from 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: 1. This Agreement and compliance with this Agreement shall not be construed as an admission by Defendant of any liability whatsoever, or as an admission by Defendant of any violation of the rights of Plaintiff or any person, violation of anyorder, law, statute, duty,or contract whatsoever against Plaintiff or any person. Defendant specifically disclaims 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 Defendant. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. 2. Each party will exchange a fully signed executed copy, or original,of this Agreement. Defendant cannot proceed with processing payment without a fully executed copy of the Agreement from Plaintiff. 3. Following receipt of, or in exchange for,an executed copy of a Request for Dismissal form from Plaintiff dismissing this Action with prejudice,Defendant will deliver a check in the amount of one hundred and fifty thousand dollars and no cents ($150,000) made payable to "Smaili & Associates,P.C. Attorney Trust Account."This amount represents a full and complete settlement of Plaintiffs claims for all damages alleged in the Action. Defendant will file the Request for Dismissal following Plaintiff's receipt of the settlement check. Plaintiff agrees that this Agreement constitutes full and complete settlement of all claims made against Defendant 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. 4. Plaintiff acknowledges and agrees that Defendant has made no representations regarding the tax consequences of any.amounts received pursuant to this Agreement. Plaintiff agrees that he and 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 Defendant harmless from any and all claims made by federal, state, or local taxing authorities against Plaintiff on amounts owed by him. Pagel of4 5, Separate and apart from tax liens,Plaintiff will hold the;City harmless from any at,([ all lien holders ofany kind, including lions for medical care or medical expenses owed to private insurance companies, Mcdd-Care or Medi-Gal,or any other medical providers, to whom Plaintiff or his attorneys are indebted. Plaintiff further acknowledges that lie and not the City is responsible For compromising any liens rotated to, or arising fi-om,this:Action. � �.— Kii—intifl''s Initials 6. Plaintiff represents that, with the exception of this Action and the government tort claim associated therewith and submitted to the City of Santa Aria, as well as any claim for workers' compensation benefits,he has not fled any complaints, claim,,,,, or actions against Dcfendant including any of its officers, agents, directors, supervisors, eniployees,or representatives of Defendant with any state, federal,or local agency or court and that he will not fitle any additional clain"is hereafter as it relates to this Action and that" if arty agency or court assumes Jurisdiction of any new complaint, claim, or action against Defendant on.Plaintiffs behalf, Plaintiff will direct that agency or court to withdraw and dismiss the matter with prejudice. 7. The Patties hereto hereby agree that sill rights under Section 1542 of the Civil Code of the State of California.are hereby waived. Civil Core S.cction 1542 provides as follows; "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist ill his ter her favor at the daze of execrating,the release and that,if known l>y him or her, would have Materially affected his or lter settlement with the debtor or released party." $, Notwithstanding the provisions of Civil Code section 1.542., each party hereby irrevocably and unconditionally releases and:brever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, ropa'esentattVLS,.insurance Goinpani.es,any stnbsicliaries or affiliates of said insurance companies, attorneys,sucees,sor's and assigns and all persons acting by, through,Ender, or in concert with each other party from any and all charges, compl.ajats, claims,and liabilities of airy kind or nature whatsoever, known or unknown, suspected of unsuspected (here nafter referred to as"claim"or"claims") which each releasing party at any time heretofore had or clainied to hovo or which each releasing party at ally tinge heietiftcr May Have or Claim to Have,incidental to the incident(s) which form the basis.of the Action. Nothing in this. Agreement shall affect Plaintiffs pending workers' compensation claim(s), if any, in terms of benefits, paytxtcuts and/or credits. 9. Each person sighing below represents that lie or she has reviewed all aspects of this Agreement, that the Agreement has been carefully react and frilly explained to them and that they understand every provision of this Agreement,that they understand that in agreoing to this docnnnent 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 discuss them with legal counsel, Each party hereby warrants that they have the authority to enter into this Agreement and bind the party for whose benefit they exec;utc;this.Agreement. Page 2 of 14. 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. 1 l. 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. 12. In response to any employment verification inquiry, Defendant shall only provide Plaintiff's dates of employment and position(s) held. Plaintiff understands that Defendant is subject to compliance with all applicable laws including the California Public Records Act. 13. In the event of an action to interpret and/or enforce the terms of the instant Agreement, the prevailing party shall be entitled to its attorneys' fees and costs. 14. 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 pant, term, or provision shall be deemed not to be a part of this Agreement. 15. This Agreement sets forth (lie entire agreement between the Parties hereto and frilly Supersedes any and all prior agreements or understandings,written or oral,between the Parties hereto pertaining to the subject matter hereof. 16. 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. 17. 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- Plainti Dated: 9 KIM M Plaint" Defendant W2S Dated: lkoZ_S� Alvaro Nuncz City Manager City of Santa Ana Page 3 of 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: • i er Hall, ity C APPROVED AS TO FORM: SMAILI&ASSOCIATES, PC Dated: 08-20-2025 �1 i�JIHAD D. SMAILI STEPHEN D. COUNTS Attorneys for Plaintiff Kim McPeck SONIA R.CARVALHO CITY ATTORNEY Dated: 2X S Laura A. Rossini Chief Assistant City Attorney Attorneys for Defendant City of Santa Ana Page 4 of 4