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HomeMy WebLinkAbout20190515 Agueda Release 1970022RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made and entered into among the Plaintiff and Defendant (the "Parties"). The "Plaintiff' shall collectively mean Sadie Agueda, guardian ad litem of a minor, their respective heirs, executors, administrators, personal representatives, successors and assigns; the "Defendant" shall collectively mean City of San Luis Obispo, Hope Charter Academy, and inspire Charter School -Dern and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships. I. RECITALS A. On or about August 31, 2018, at or near Santa Rosa Park, Santa Rosa Street & Oak Street, City of San Luis Obispo, California, Plaintiff claims to have sustained physical injuries as a result of the alleged conduct of the Defendant (the "Incident"). B. The Parties desire to enter into this Agreement to provide, among other things, for considerations in full settlement and discharge of all claims and actions of the Plaintiff for damages which allegedly arose out of or due to the Incident, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is agreed as follows: II. RELEASE AND DISCHARGE A. Release and Discharge. In consideration of the cash payment(s) referred to in Paragraph III.A. and the promise to make the periodic payments referred to in Paragraph III.B. ("Periodic Payments"), the Plaintiff hereby completely releases and forever discharges the Defendant from any and all past, present, or future claims, demands, actions, damages, costs, expenses, loss of services including but not limited to past, present and future medical or other liens for care, treatment, services provided, expenses incurred, and monies paid on behalf of the Plaintiff arising out of or in any way relating to the accident and resultant lawsuit identified in I.A. above, and causes of action of any kind or character, whether based on tort, contract, or other theory of recovery, whether known or unknown, which have arisen in the past or which may arise in the future, whether directly or indirectly, caused by, connected with or resulting from the Incident. This release and discharge shall be a fully binding and complete settlement among all Parties to this Agreement, and their heirs, assigns, and successors. The Plaintiff acknowledges and agrees that this release and discharge is a general release. The Plaintiff expressly waives and assumes the risk of any and all claims for damages and expenses which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect the Plaintiffs decision to enter into this Agreement. The Plaintiff further agrees that the Plaintiff has accepted the considerations set forth in Paragraphs IILA. and B. as a complete compromise of ?natters involving disputed issues of law and fact. The Plaintiff assumes the risk that the facts or law may be other than the Plaintiff believes. It is understood and agreed to by the Parties that this settlement is a compromise of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of the Defendant, by whom liability is expressly denied. B. Iniuries Known and Unknown. The Plaintiff fully understands that the Plaintiff may have suffered personal injuries that are unknown to the Plaintiff at present and that unknown complications of present known injuries may arise, develop or be discovered in the future, including, but not limited to, subsequent death or disability. The Plaintiff acknowledges that the consideration received under this Agreement is intended to and does release and discharge the Defendant from any claims for, or consequences arising from, the injuries which allegedly arose from the Incident; and the Plaintiff hereby waives any rights to assert in the future any claims not now known or suspected even though, if such claims were known, such knowledge would materially affect the terms of this Agreement. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar laws of any state or territory of the United States are hereby expressly waived. Said Section reads as follows: "1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know 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." C. Parties Released. This release and discharge shall also apply to the Defendant's past, present, and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, reinsurers, partners, predecessors and successors in interest, heirs, executors, personal representatives, and assigns. III. PAYMENTS TO PLAINTIFF, PAYEE, AND/OR BENEFICIARY The Defendant agrees to pay a total settlement sum of Fifty -Five Thousand and 00/100 Dollars ($55,000.00) as outlined below: A. Payment at Settlement (and Amounts Previously Paid). The Defendant agrees to pay Twenty Thousand Eighty -Eight and 84/100 Dollars ($20,088.84) to the Plaintiff and Plaintiff Counsel. This includes, but is not limited to, all out of pocket expenses, attorney fees, all medical liens, all rights of recovery, all medical subrogation claims, all worker compensation subrogation claims, known and unknown, and claims for general damages. B. Periodic Payments. The Defendant agrees to pay Thirty -Four Thousand Nine Hundred Eleven and 16/100 Dollars ($34,911.16) to MetLife Assignment Company, Inc. to fund the following Periodic Payments: (1) To ("Payee"), as follows: $7,500.00 guaranteed lump sum payment on 09/09/2025 $15,000.00 guaranteed lump sum payment on 09/09/2028 $25,205.54 guaranteed lump sum payment on 09/09/2032. 2 Should die before 09/09/2032, then any remaining guaranteed Periodic Payments set forth above shall instead be paid, subject to the provisions of Subparagraph III.B.(2) below, as they become due, to the Estate of ('Beneficiary"), with the last guaranteed Periodic Payment to be made on or about 09/09/2032. (2) The Payee shall have the right, after reaching the age of majority, to submit a request to change the Beneficiary by filing a written request with the owner of the Annuity Contract. The change will be effective when approved by both the owner of the Annuity Contract and the Annuity Issuer. Any change in the Beneficiary shall not in any way affect or alter any of the provisions of this Agreement. (3) All sums set forth above constitute damages on account of personal physical injuries or physical sickness, arising from an occurrence, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. IV. ASSIGNMENT AND FUNDING OF PERIODIC PAYME+ N T OBLIGATION A. Assignment of Obligation. The Parties understand and agree that the Defendant may assign its duties and obligations to make such future Periodic Payments to MetLife Assignment Company, Inc. ("Assignee") pursuant to a "Qualified Assignment," within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended. When the Periodic Payment obligation is assigned to MetLife Assignment Company, Inc., Metropolitan Tower Life Insurance Company has represented that it will provide a written guarantee of such obligation. Such assignment is accepted by the Plaintiff without right of rejection and in full discharge and release of the duties and obligations of the Defendant and all Parties released by this Agreement with respect to such Periodic Payments. Upon such assignment, it is understood and agreed by and between the Parties that the Assignee shall make said Periodic Payments directly to the Payee and/or Beneficiary designated in Subparagraph III.B.(1) and that the Payee shall submit any request to change the Beneficiary directly to the Assignee. The Parties expressly understand and agree that, with the Defendant's assignment of the duties and obligations to make such Periodic Payments to MetLife Assignment Company, Inc. pursuant to this Agreement, all of the duties and responsibilities otherwise imposed upon the Defendant by this Agreement with respect to such Periodic Payments shall cease, and instead such obligation shall be binding solely upon MetLife Assignment Company, Inc. The Parties further understand and agree that when the assignment is made, the Defendant shall be released from all obligations to make such Periodic Payments MetLife Assignment Company, Inc. shall at all times be directly and solely responsible for, and shall receive credit for, the Periodic Payments, and that when the assignment is made, MetLife Assignment Company, Inc. assumes the duties and responsibilities of the Defendant with respect to such Periodic Payments. B. Annuity Funding. The Parties understand and agree that the Assignee may fund its obligation to make the Periodic Payments by purchasing an annuity contract (the "Annuity Contract") from Metropolitan Tower Life Insurance Company (the "Annuity Issuer"). If such Annuity Contract is purchased, the Assignee shall be the owner of the Annuity Contract and shall 3 have and retain all rights of ownership in the Annuity Contract. For its own convenience, the Assignee may direct the Annuity Issuer to make all the Periodic Payments directly to the respective Payee and/or Beneficiary designated in Paragraph III.B. Any Payee or Beneficiary designated in Paragraph III.B. shall be responsible for maintaining his/her current mailing address with the Annuity Issuer. The obligation assumed by the Assignee to make each Periodic Payment shall be fully discharged upon the mailing of a valid check or electronic funds transfer in the amount of such payment on or before the due date to the last address on record for the Payee or Beneficiary with the Annuity Issuer. If the Payee or Beneficiary notifies the Assignee that any check or electronic funds transfer was not received, the Assignee shall direct the Annuity Issuer to initiate a stop payment action and, upon confirmation that such check was not previously negotiated or electronic funds transfer deposited, shall have the Annuity Issuer process a replacement payment. C. Status of Plaintiff, Payees, and Beneficiaries. The Plaintiff, each Payee, and each Beneficiary, as applicable, shall at all times remain a general creditor of the Assignee and shall have no rights in the Annuity Contract nor in any other assets of the Assignee. The Assignee shall not be required to set aside sufficient assets or secure its obligation to the Plaintiff, each Payee, or each Beneficiary in any manner whatsoever. V. NO CHANGES IN PERIODIC PAYMENTS The Plaintiff acknowledges and agrees that the Periodic Payments cannot be, and may otherwise be prohibited or restricted under applicable law from being accelerated, commuted, transferred, deferred, increased or decreased by the Plaintiff or by any Payee or Beneficiary and that the Plaintiff or any Payee or Beneficiary shall not have the power to sell, mortgage, encumber, or otherwise anticipate all, some, or any part of the Periodic Payments by assignment or otherwise. Any transfer of the Periodic Payments by the Plaintiff may subject the Plaintiff to serious adverse tax consequences. VI. ENTIRE AGREEMENT This Agreement contains the entire agreement between the Plaintiff and the Defendant with regard to the matters set forth in it. There are no other understandings or agreements, verbal or otherwise, in relation to the Agreement, between the Parties except as expressly set forth in it. This Agreement is intended to conform with the requirements of Internal Revenue Code Sections 104(a)(2) and 130. All provisions of this Agreement should be construed in a manner so as to effectuate that intent. VII. READING OF AGREEMENT In entering into this Agreement, the Plaintiff represents that the Plaintiff has completely read all of its terms and that such terms are fully understood and voluntarily accepted by the Plaintiff. 10 The Plaintiff has been represented by counsel of the Plaintiffs choice. VIII. FUTURE COOPERATION All Parties agree to cooperate fully, to execute any and all supplementary documents, and to take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement which are not inconsistent with its terms. Upon execution of this Agreement by the undersigned, the Plaintiff hereby authorizes and directs the Plaintiffs counsel to prepare, execute and file with the Court as part of the record, a final dismissal with prejudice of and from any and all claims and demands of the Plaintiff against the Defendant. The Plaintiff will thereafter send a conformed copy to the Defendant's attorney, or designated representative. IX. DRAFTING OF DOCUMENT AND RELIANCE BY PLAINTIFF This Agreement has been negotiated by the respective Parties through counsel. The Parties to this Agreement contemplate and intend that all payments set forth in Section III constitute damages received on account of personal physical injuries or sickness, arising from the Incident, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. However, the Plaintiff warrants, represents, and agrees that the Plaintiff is not relying on the advice of the Defendant, anyone associated with them, including their attorneys and the insurance broker placing the Annuity Contracts, as to the legal and income tax or other consequences of any kind arising out of this Agreement. Accordingly, the Plaintiff hereby releases the Defendant and any and all counsel or consultants for the Defendant from any claim, cause of action, or other rights of any kind which the Plaintiff may assert because the legal, income tax or other consequences of this Agreement are other than those anticipated by the Plaintiff. The Parties signing this Agreement, and each of them, warrant and represent that no promise, inducement or agreement not expressed in this Agreement has been made to them and that this Agreement constitutes the entire agreement between the Parties and that the terms of this Agreement are contractual and not mere recitals. The Plaintiff represents and agrees that the Plaintiff has read the Agreement and fully understands it, and has been advised by counsel of the Plaintiffs own choosing as to the propriety and legal effect of executing it, and neither the Agreement nor the compromise and settlement recited in it were induced by fraud, coercion, compulsion or mistake, nor is this Agreement nor the compromise and settlement made in reliance upon any statement or representation of any of the Parties released by this Agreement, or their representatives, agents or attorneys. X. WARRANTY OF CAPACITY TO EXECUTE AGREEMENT The Plaintiff represents and warrants that, with the exception of contingency fee contracts and any agreements which may exist between the Plaintiff and Plaintiffs counsel relative to the reimbursement of litigation expenses, no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Agreement, and that the 61 Plaintiff has the sole right and exclusive authority to execute this Agreement and receive the sums specified in it and that the Plaintiff has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes ' of action referred to in this Agreement. XI. COURT APPROVAL The Parties agree that the Plaintiff will file petitions for all necessary court approvals, that all such petitions and orders shall be in a form satisfactory to all Parties, and that this Agreement will not be effective until such approvals have been obtained. XII. CONTROLLING LAW This Agreement shall be construed and inte in California. laws of the State of Witness to signature ,` Sad a, Guardian adti em for a Minor, P aintiff 3 For your protection California law requires the following to appear on this form. Any person who knowingly presents a false or fraudulent claim for the payment of a loss is guilty of a crime and may be subject to fines and confinement in state prison. ACKNO LEDGMENT UNDER O H State of County of Before me this day of came known to me to be the individual who exec ed this release and acknowledged that fully understood its cont is and freely exe uted same for the sole consideration therein expressed. Notary Public A CALIFORNIA• . •D �. _v. _ s. _cs.. �. � _sem<.ca s.<_�.•. _va. _v,. _s� c.. _a<_s�<s�<_a ..a.•ry�<rr<_v> _n<_c�•_a<_ .a r�<r,�<_c�<_�.•..-,<.•-• ^<%• r - - -- - ...:. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of `nek-c-, iGj Oltj�gOo ) On 1�) / \S I n before me, �O,�o.� �O M Date Here Insert Name and Title o the Officer personally appeared coo,&� P Ncko p_A a Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(g whose name( is/apI6 su scribed to the within instrument and acknowledged to me that hffllshe/th* executed the same in h' /her/thq& authorized capacity(i94, and that by Vlher/thXir signature( on the instrument the person(;6, or the enfiity upon behalf of which the person(XI acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SARAH ROMIG Notary Public - California Z �� San Luis Obispo County y a Signature C�(_i A( rt I A Q OL Commission # 2145872 Signature otary Public My Comm. Expires Mar 11, 2020 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907