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HomeMy WebLinkAboutVargas, German, et al.; 1990-12-14;a c I I I I SETTLEMENT AGREEMENT AND RELEASE I This Settlement Agreement and Release (the "Settlement Abreementm) is made and entered into this 14th day of December 1990, by and between the following individuals +-, e tities: GERMAN VARGAS, individually, and as Guardian ad L: fbr M1CHEL:LE VARGAS, CHRISTIAN VARGAS and ALLAIN VARGAS (hereinafter referred to as "Claimants"); THE CITY OF CARLSBl (bereinafter "Defendant"), R~CITALS - A. On or about November 13, 1988 at approximately 3:25 p~.m., Claimants' decedent Teresa Vargas was critically injure ap automobile accident which occurred on Rancho Santa Fe Roac a1 proximately .1 miles north of Cadencia Street in the City e N vember 20, 1990 as a result of injuries sustained in the a tomobile accident. Claimants allege the accident and resu p ysical and personal injuries and all other damages arose 01 certain alleged negligent acts or ommissions by Defendant ane ihjuries which is the subject of a lawsuit on file in the Superior Court of the State of California, North County of St Dliego, bearing case number N45773, entitled German Vargas, e y. City of Carlsbad, et al. Carlsbad. P She was taken to Palomar Hospital where she died e have 1 made a claim seeking monetary damages on account of tho: i undertaken in good faith as well. I I B. The parties desire to enter into this Settlement greement in order to provide for certain payments in full ettlement and discharge of all claims which have or might bc ade, by reason of the incident described in Recital A above pon the terms and conditions set forth below. 4 C, The parties declare that the provisions, terms and ? donditions set forth herein are the result of co?aaprehenaive, horough negotiations undertaken in good faith. Further, thl arties recognize and declare that each other's actions in rosecuting or defending the suit mentioned hereinabove were I +EEMENT The parties agree as follows: I I 1.0 Release and Discharge I I 1.1 In consideration of the payments set forth in I I Page 1 of 7 0 a I Skction 2, Claimants hereby completely release and forever d'scharge Defendant from any and all past, present or future c 1 aims, demands, obligations, actions, causes of action, wror death claims, rights, damages, costs, losses of services, eSrpenses and compensation of any nature whatsoever, whether 1 a tort, contract or other theory of recovery, which the C Of aimants now have, or which may hereafter accrue or otherwi: acquired, on account of, or may in any way grow out of the ipcident described in Recital A above, including, without l$mitation, any and all known or unknown claims for bodily i1 apd personal injuries to Claimants, or any future wrongful dt ckaim of Claimants' representatives or heirs, which have res1 or may result from the alleged acts or omissions of the Dbfendant. 1.2. This release and discharge shall also apply tc Dbf endant tis past, present and future officers, directors, skockholders, attorneys, agents, servants, representatives, ebployees, subsidiaries, affiliates, partners, predecessors i sbccessors in interest, and assigns and all other persons, f: ob corporations with whom any of the former have been, are nc OF may hereafter be affiliated. 1.3 This release, on the part of the Claimants, SI be a fully binding and complete settlement among the Claimanl the Defendants, and their heirs, assigns and successors. 1.4 Claimants further understand and agree that ii consideration of said payments, the Claimants will indemnify save harmless Defendant and all other persons, firms, or corporations of and from any and every claim, lien, or demanc eLery kind or character which has been or may ever be assertc 4ay of subrogation or any other proceeding by reason of said ikjuries, property damage or other loss or damage or the effc OF consequences thereof by the Claimants or their heirs or aissigns or any other person, natural or artificial, claiming he damaged thereby. iincurred as a result of payments or benefits provided to qlaimants as a result of this incident. This specifically includes but is not limited to any payment or benefits provic t o Claimants or Claimants' decedent Teresa Vargas by Medi- dal/Medi-Care. 1.5 The Claimants acknowledge and agree that the rlelease and discharge set forth above is a general release. Claimants expressly waive and assume the risk of any and all dlaims for damages which exist as of this date, including thl dlaims which the Claimants do not know or suspect to exist, hether through ignorance, oversight, error, negligence, or therwise, and which, if known, would materially affect laimants' decision to enter into this Agreement. Claimants i ,urther agree that Claimants have accepted payment of the su: qpecified herein as a complete compromise of matter involvinl This applies only to damages which are Page 2 of 7 e 0 l dtsputed i., <-sues of law and fact. tpe facts or law may be other than Claimants believe. It is u$derstood and agreed to by the parties that this settlement compromise of a doubtful and disputed claim, and the payments nqt to be construed as an admission of liability on the part Defendant, by whom liability is expressly denied. 1.6 The Claimants further understand and express11 agree to waive all rights and benefits which they now have or the future may have under and by virtue of the terms of Sectj 1542 of the Civil Code of the State of California, which sect reads as follows: Claimants assume the risk t 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. 2.0 Payments In consideration of the release set forth above, the Defendant agrees to pay to the individuals named below (nPayee(s)iv) the sums outlined in this Section 2 below: 2.1 Payments due at the time of settlement as fol: A single cash payment in the sum of $50,000.00 sha: paid to German Vargas and Monguia & Monguia, his attorneys. 2.2 Periodic payments made as follows: (a) To Christian Vargas (date of birth: 12/31/79) payment of $~O,OOO.OO at age 21; a payment of $15,000.00 at age 25; and a payment of $28,900.00 i age 30; (b) To Allah Vargas (date of birth: 9/26/81) a payment of $13,000.00 at age 21; a payment of $18,000.00 at age 25; and a payment of $29,500.00 i age 30; and (c) To Michelle Vargas (date of birth: 6/18/86) a payment of $20,000.00 at age 21; a payment of $25,000.00 at age 25; and a payment of $40,000.00 l age 30. All sums set forth herein constitute damages on account dersonal injuries and sickness, within the meaning of Sectio 404(a)(2) of the Internal Revenue Code of 1986, as amended. I Page 3 of 7 0 0 ~ 3.0 Claimants' Rights to Payments Claimants acknowledge that the Periodic Payments cannot accelerated, deferred, increased or decreased by the Claimant n r shall the Claimants have the power to sell, mortgage, e i: cumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Claimants' Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be m t such person or entity as shall be designated in writing bj C aimants 'to Safeco Life Insurance Company or its Assignee. np person or entity is so designated by Claimants, or if the pprson designated is not living at the time of the Payee's dt s&id paymeints shall be made to the estate of the Payee(s). 1 such designation, nor any revocation thereof, shall be effecl ufiless it is in writing and delivered to Safeco Life Insuranc Cbmpany or its Assignee. 1 5.0 Consent to Qualified Assignment 5.1 Claimants acknowledge and agree that the Defei mlay make a "qualified assignment," within the meaning of Secl 130(c) of the Internal Revenue Code of 1986, as amended, of I Defendant's liability to make the Periodic Payments set fort1 Section 202 to SAFECO ASSIGNED BENEFITS SERVICE COMPANY ("the ssignee"). Periodic Payments shall be no greater than that of Defendant ( hether by judgment or agreement) immediately preceding the a~ssignment of the Periodic Payments obligation. 5.2 Any such assignment, if made, shall be acceptc dhe Claimants without right or rejection and shall completel: elease and discharge the Defendant from the Periodic Paymen. bligation assigned to the Assignee. The Claimants recognizc hat, in the event of such an assignment, the Asignee shall1 he sole obligor with respect to the Periodic Payments bligation, and that all other releases with respect to the eriodic Payments obligation that pertain to the liability o efendant shall thereupon become final, irrevocable and abso The Assignee's obligation for payment of the I { I I I I 6.0 Right to Purchase an Annuity I The Defendant itself or through its Assignee, reserves i 4 light to fund the liability to make the Periodic Payments th he purchase of an annuity policy from Safeco Life Insurance ompany. The Defendant or the Assignee shall be the sole ow f the annuity policy and shall have all rights of ownership he Defendant or the Assignee may have Safeco Life Insurance ompany mail payments directly to the Payee(s). The Claiman hall be responsible for maintaining a current mailing addre ! 4 Page 4 of 7 e 0 for Payee(s;) with Safeco Life Insurance Company. 7.0 Discharge of Obligation The obligation of the Defendant and/or Assignee to make Periodic Payment shall be discharged upon the mailing of a va cpeck in the amount of such payment to the designated address the Payee(s) named in Section 2 of the Settlement Agreement. 8.0 Attorney's Fees Each party hereto shall bear all attorney's fees and COS aFising from the actions of its own counsel in connection wit this Settlement Agreement, the matters and documents referred hkein, and all related matters. 9.0 In entering into this Settlement Agreement the Claimants r present that Claimants have relied upon the advice of theii a torneys, who are the attorneys of their own choice, concerr t e legal and income tax consequences of this Settlement A i reement; that the terms of this Settlement Agreement have 1 cbmpletely read and explained to Claimants by their attorneys ahd that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimants. 10.0 Warranty of Capacity to Execute Agreement Claimants represent and warrant that no other person or e tity has, or has had, any interest in the claims, demands, o ligations, or causes of action referred to in this Settlemt A reement, except as otherwise set forth herein; that Claimai Settlement Agreement and receive the sums specified in it; ai t at Claimants have not sold, assigned, transferred, conveyec o herwise disposed of any of the claims, demands, obligation: Representation of Comprehension of Document l h i ve the sole right and exclusive authority to execute this c 1 uses of ,action referred to in this Settlement Agreement. a 1 tion described in Recital A above. Claimants have authori: J 11.0 !Delivery of Dismissal with Prejudice Concurrent with the execution of this Settlement Agreemc c unsel for Claimants will execute and deliver to counsel foi D fendant an executed Dismissal with Prejudice of the civil t eir attorneys to execute this dismissal on their behalf anc hereby authorize counsel for the Defendant to file said dism. lith the court and enter it as a matter of record. I 12.0 Confidentiality The parties agree that neither they nor their attorneys depresentatives shall reveal to anyone, other than as may be Page 5 of 7 e e mbtually agreed to in writing, any of the terms of this Skttlement Agreement or any of the amounts, number or terms z cbnditions of any sums payable to Payee(s) hereunder. 13.0 Governing Law This Settlement Agreement shall be construed and interpi 14.0 AUditional Documents All parties agree to cooperate fully and execute any anc supplementary documents and to take all additional actions wl may be necessary or appropriate to give full force and effeci the basic terms and intent of this Settlement Agreement. in accordance with the laws of the State of California, 15.0 :Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement bletween the Claimants and the Defendant with regard to the matters set forth in it and shall be binding upon and enure 1 t e benefits of the executors, administrators, personal representatives, P heirs, successors and assigns of each. 16-0 Effectiveness This Settlement Agreement shall become effective immedii f'ollwing execution by each of the parties. D'ated: /2 -/q- , 1990 Claimant : By: Dated: ,/<Ad/Y , 1990 Claimant : By: I through her Guardian ad Lit GERMAN VARGAS dated: 12- /q , 1990 Claimant: By: through her Guardian ad Lit GERMAN VARGAS Page 6 of 7 * e Dgted: rQ - /y , 1990 Claimant : P By: iq{M+!.m4,A (/:+q$J $/() CHRXSTIAN VARGAS, %a minor, 1 and through her Guardian ad Litem, GERMAN VARGAS Dated: /J\. BY , 1990 Claimant's Attorney: I MONGUIA & MONGUIA By: Dhted: , 1990 Claimant's Attorney: I By: John Serrano Dhted: /J'//d , 1990 Defendant's Attorney: / NEIL, DYMOTT, PERKINS, BROWN & FRANK B Page 7 of 7