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HomeMy WebLinkAboutHERNANDEZ, HIGNACIOA- 2013 -146 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 HIGINIO HERNANDEZ (hereinafter referred to as "Claimant "), and the CITY OF SANTA ANA, (hereinafter "Respondent "). WITNESSETH: WHEREAS, Claimant filed a government tort claim against Respondent alleging damages as a result of an incident which occurred on June 6, 2012 and as a precursor to filing litigation (the "Claim "). WHEREAS, Claimant and the Respondent 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 Respondent and of any liability whatsoever, or as an admission by the Respondent of any violation of the rights of Claimant or any person, violation of any order, law, statute, duty, or contract whatsoever against Claimant or any person. The Respondent specifically disclaims any liability to Claimant or any other person for any alleged violation of the rights of Claimant 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 Claimant of any liability, misconduct, or wrongdoing whatsoever. SECOND: (a) At the time Claimant delivers to counsel for the Respondent a. fully signed original of this Agreement, the Respondent will deliver to Claimant, a check in the amount of TWO HUNDRED THIRTEEN THOUSAND NINE HUNDRED AND ONE DOLLARS AND FORTY -FIVE CENTS ($213,901.45) made payable to "Juan Cominguez, APLC and Higinio Hernandez" and a check in the amount of SIXTY -ONE THOUSAND NINTY -EIGHT DOLLARS AND FIFTY -FIVE CENTS ($61,098.55) made payable to the "Cochran Firm" in full and complete settlement of all claims made against the City of Santa Ana in this claim. This amount is in full and complete settlement for Claimant's claims for all damages alleged in the above - referenced Claim. 1 (b) Claimant, HIGINIO HERNANDEZ, and Respondent, CITY OF SANTA ANA, agree that the foregoing constitutes mutual dismissals and full and complete settlement of all claims made against all parties pursuant to this incident. Claimant 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. (c) Claimant acknowledges and agrees that the Respondent has made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. Claimant 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. Claimant will hold the Respondent harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Claimant on amounts owed by him. THIRD: Claimant represent that, with the exception of the government tort claim regarding the incident of June 6, 2012, he has not filed any complaints, claims, or actions against Respondent 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 Respondent on Claimant's behalf, Claimant 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 known 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 2 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 polies' 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. TWELYETH: Claimant promises that there is no Medicare lien in this matter. Claimant 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 #f Claimant. Dated: ! J b`// ?J _ _ H1GINIO HERNF E2, Claimant 3 Dated: Iv Iia' 13 CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constihrtio d law of the S of Californi By: Carlos Rojas, Acting City Manager ATTEST: Dated:,--I -jZ �� 1 3 APPROVED AS TO FORM: Dated: Dated: 1D 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: \ �oSe JN-z L.�C� o Maria D. Huizar, Clerk of the Council THE COCHRAN LAW FIRM Jamon H�$ks, Esq. Attorney �r Claimant HIGINIO HERNANDEZ SONIA R, CARVALHO City Attorney LAURA A. ROSSINI Assistant City Attorney Attorneys for Respondent CITY OF SANTA ANA