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HomeMy WebLinkAboutKOSTER, PATRICIAA-2013-062 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 PATRICIA KOSTER (hereinafter referred to as "Plaintiff'), and CITY OF SANTA ANA (hereinafter "Defendant"). WITNESSETH: WHEREAS, Plaintiff filed an action against Defendants in the Superior Court of the State of California, County of Orange, Central Justice Center District known as PATRICIA KOSTER v CITY OF SANTA ANA, et al., Case No. 30-2011.00518423 (the "Action"). WHEREAS, Plaintiff and the Defendant desire to settle fully and finally all differences between them, including, but in no way limited to, those differences described above, 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 the Defendant 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 person. The 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, agents of the CITY OF SANTA ANA. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. SECOND: (a) Plaintiff will sign a Request for Dismissal with Prejudice form dismissing Case No, 30-2011-00518423 as to Defendant, CITY OF SANTA ANA, in its entirety. (b) At the time Plaintiff delivers to counsel for the Defendant a fully signed original of this Agreement and an executed original Request For Dismissal, the Defendant will deliver to Plaintiff, a check in the amount of SEVENTY FIVE THOUSAND DOLLARS (.'675,000.00) in full and complete settlement of all claims made against City of Santa Ana in this litigation. The check is to be made out to "PATRICIA KOSTER AND LEE C. ARTER, A PROFESSIONAL LAW CORPORATION". This amount is in full and complete settlement for Plaintiffs claims for all damages alleged in the above-referenced Complaint. r (c) Plaintiff, PATRICIA KOSTER, and Defendant, CITY OF SANTA ANA, agree that the foregoing mutual dismissals constitute full and complete settlement of all claims made against all parties in this litigation. Plaintiff will not seek any further compensation for any other claimed damage, costs, or attorney's fees in connection with the matters encompassed in this Agreement. (d) Plaintiff acknowledges and agrees that the Defendant had made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that she and she alone is liable for all taxes, if any, which are owed by her on any amount received hereunder including interest and penalties. Plaintiff will hold the Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiff on amounts owed by her. THIRD: Plaintiff represents that, with the exception of Case No. 30-2011-00518423 and the government tort claim associated therewith, she has not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of CITY OF SANTA ANA with any state, federal, or local agency or court and that they will not do so at any time hereafter as it relates to this action and that if any agency or court assumes jurisdiction of any complaint, claim, or action against the Defendant on Plaintiff's behalf, Plaintiff 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 favor at the time of executing the release, which if (mown by him must have materially affected his 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 party 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, 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 this lawsuit. SIXTH: Each person signing below represents that he/she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to he/she 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 have against each party released, that he/she voluntarily agrees to all the terms set forth in this Agreement, that he/she knowingly and willingly intends to be legally bound by the same, that he/she was given the opportunity to consider the terms of this Agreement and discussed them with legal counsel. 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: 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 part, term, or provision shall be deemed not to be a part of this Agreement. 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, TWELVETH: Plaintiff promises that there is no Medicare lien in this matter. Plaintiff further agrees that should it be discovered that there is a Medicare lien in this matter that satisfaction of any such lien will be the sole responsibility of Plaintiff, n /? 1 Dated: ? rpS? ? ? • ;J ATRICIA KOSTER, Plaintiff Dated: CITY OF SANTA ANA, charter, law city and municipal corporation, duly org ed and existing under the Constitution and Is,"s of Stata-OfEalifomia By: Kevin O'Rourke, Interim ATTEST: Dated: "1'1. '3 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: ? / 21i ;- /DhC. 4,,7y - Maria D. Huizar, Clerk oft ouucil APPROVED AS TO FORM: LAW OFFICES OF LE C. ARTER Dated: 440 -A W-" Steven M. Karp Attorneys for Plaintiff Patricia Koster SONIA R. CARVALHO CITY ATTORNEY Dated: Laura A. Rossini Assistant City Attorney Attorneys for Defendant City of Santa Ana 4