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HomeMy WebLinkAboutMELENDEZ, EDWINMAY/08/2013/WED 02:00 PM FAX No. A-2013-059 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 EDWIN H. MELENDEZ (hereinafter referred to as "Plaintiff'), and OFFICER RAMIRO VERGARA., (hereinafter "Defendant"). WITNESSETH: WHEREAS, Plaintiff filed an action against Defendant in the Superior Court of the State of California, County of Orange, Central Justice Center District known as EDWIN H. MELENDEZv. CITY OF SANTA ANA, et al. Case No. 30-2012-00554467 (the "Action"), WHEREAS, Plaintiff and the Defendant desire to settle fully and finally all differences between them, including, but in no way limitcd 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 of the Entire Action with Prejudice form dismissing Case No. 30-2012-00554467 as to Defendant, OFFICER RAMIRO VERGARA, in its entirety. 1 MA1'/08/2'13 WED 02:20 PM FAX No. F. Oct (b) At the time Plaintiff delivers to counsel for the Defendant a fully signed original of this Agreement, and an executed Request for Dismissal form (the "RFD"), the Defendant will deliver to Plaintiffs counsel, a check in the amount of THIRTEEN THOUSAND DOLLARS AND ZERO CENTS ($13,000.00) in full and complete settlement of all claims made against OFFICER RAM1RO VERGARA in this litigation. The check is to be made out to "LAW OFFICES OF MICHAEL A. LOTTA AND EDWIN H. MELENDEZ." This amount is in full and complete settlement for Plaintiff s claims for all damages alleged in the above-referenced Complaint, (c) Plaintiff EDWIN 14. MELENDEZ agrees that the foregoing dismissal constitutes fall and complete settlement of all claims made 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 has made no representations to him regarding the tax consequences of any amounts received by him pursuant to this Agreement. Plaintiff agrees that he and he 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 him. THIRD: Plaintiff represents that, with the exception of Case No. 30-2012- 00554467 he has not fled any complaints, claims, or actions against Defendant with any state, federal, or local agency or court and that he 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 Plaintiffs behalf, Plaintiff will direct that agency or court to withdraw and dismiss with prejudice the matter. FOURTH: Plaintiff represents and warrants that no portion of any claim, right, demand, action or cause of action that he has or might have against Defendant or any portion of any recovery or settlement to which he may be entitled from Defendant, has been assigned or transferred to any person, entity or corporation in any manner, including by way of subrogation, transfer or operation of law. lu the event that any claim, demand, suit or lien has or should have been made were instituted against the Defendant because of any such purported assignment, subrogation, transfer or lien, Plaintiff agrees to indemnify and hold harmless the Defendant against any such claim, suit, demand, and to pay and satisfy any such claim, suit, demand or lien, including expenses of investigation, attorney's fees and costs. MAY/08/2013/WED 02:01 PM FAX No. P. 005 FIFTH: The Plaintiff hereby agrees 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 known by him must have materially affected his settlement with the debtor." SIXTH: Notwithstanding the provisions of Civil Code section 1542, Plaintiff hereby irrevocably and unconditionally releases and forever discharges Defendant and his successors and assigns and all persons acting by, through, under, or in concert with Defendant 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 the releasing party at any time heretofore had or claimed to have or which the releasing party at any time hereafter may have or claim to have, incidental to the incident(s) which form the basis of this lawsuit. SEVENTH: Plaintiff represents that he has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to him and that he understands all the provisions of this Agreement, that he understands that in agreeing to this document he is releasing Defendant from any and all claims he may have against the party released, that he voluntarily agrees to all the terms set forth in this Agreement, that he knowingly and willingly intends to be legally bound by the same, that he was given the opportunity to consider the terms of this Agreement and discussed them with legal counsel. EIGHTH: 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. NINTH: 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. MA"I1/08/201YWED 02;01 PM FAX No, P. 006 TENTH: 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. ELEVENTH: 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. TWELVTH: 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. Dated: Z6 /J EDWIN H. MELENDEZ Plaintiff Dated: 2 3 CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitu=d, of California By: City Manager ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under Dated: "0 "J the Constitution and laws of the State of California r By: ?? It Maria D. Huizar, Clerk of e Council il? 4 Pd V08/2013/WED U2:U1 F11 rnx eo, f, uuI APPROVE, D AS TO FORM: Dated: a14 /3 Dated: 6117 4&f -3 LAW OFFICES OF MICHAEL A. LOTTA WCHAEL A. LOTTA Attomey for Plaintiff EIaWIN H. MELENDE7 SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana SEP S`'RAKA Assistant City Attorney Attorney for ]Defendant OFFICER RAMIRO VERGARA