Loading...
HomeMy WebLinkAboutAxford, Eric; 2023-05-22;DocuSign Envelope ID: 527F201F-C232-4ED9-9A7F-A3396618479F SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of ALL Claims (hereafter referenced as the "Agreement") is entered into by Plaintiff Eric Axford (hereinafter "Plaintiff') and Defendant City of Carlsbad (hereinafter the "City"). All of the above-referenced individuals and/or entities may be collectively referenced as the "Parties." RECITALS I. Plaintiff has asserted claims and causes of action against the City in relation to a July 17, 2021 , bicycle incident, and further alleged personal injuries as a result, in the lawsuit entitled Eric Axford v. City of Carlsbad, et al. in the Superior Court for the County of San Diego, Case Number 37-2022-00007115-CU-PO-NC (hereafter referred to as the "Lawsuit"). The City denies liability for the claims/causes of action asserted by Plaintiff in the Lawsuit, and further disputes the nature and extent of damages alleged by Plaintiff regarding the incident underlying the Lawsuit. 2. The Parties have reached a final resolution and settlement of any and all actual and/or potential claims and causes of action by Plaintiff against the City. This Agreement is entered into for the purposes of Plaintiff resolving and releasing all claims and causes of actions asserted, and all those that could have or may be asserted against the City, its employees, agents or representatives, including, but not limited to dismissing the Lawsuit as against the City and Does with prejudice. AGREEMENT AND RELEASE 1. PAYMENT AND DISMISSAL Plaintiff agrees to dismiss the Lawsuit in its entirety with prejudice, and to settle and release any and all known, unknown, anticipated and unanticipated claims and damages arising out of, in any way connect to, or resulting from Plaintiffs alleged damages in any way connected to the allegations of Lawsuit as against the City in exchange for the total sum of Ten Thousand Dollars ($10,000.00), each party to bear their own attorneys' fees and costs (the "Settlement Amount"). Plaintiff agrees that any obligation to tender the Settlement Amount is expressly conditioned upon the releases and terms made herein, as well as Plaintiffs execution of this Agreement. Plaintiff further agrees to be solely responsible for the allocation of settlement funds between counsel and Plaintiff, and further acknowledges the City's obligation with respect to funding is solely to provide the sum total of $10,000.00, per the terms herein. The Parties in good faith agree that all sums set forth herein constitute damages on account of physical injuries or sickness, within the meaning of Section I 04(a)(2) of the Internal Revenue Code of 1986, as amended. However, Plaintiff acknowledges and agrees that the ultimate determination of this characterization is beyond the control of the Parties and, therefore, Plaintiff agrees to be solely and exclusively responsible for the tax consequences of the Settlement Amount, if any, and to further indemnify and hold the City, its employees, agents and representatives, harmless for any and every claim, right, demand or cause of action arising from any governmental or taxing authority relating to the Settlement Amount. Page 1 of 5 DocuSign Envelope ID: 527F201F-C232-4ED9-9A7F-A3396618479F Not later than seven (7) days after tender of the Settlement Amount, counsel for Plaintiff shall provide the City with a fully executed Request for Dismissal of the entire Lawsuit with prejudice and, in so providing, Plaintiff expressly authorizes the City to file such document and effect the dismissal of the Lawsuit, in its entirety, with prejudice. 2. MANNER OF PAYMENT Within thirty (30) days of (I) receipt of this Agreement executed by Plaintiff, and (2) receipt of a valid 2023 W-9 for each payee of the Settlement Amount, the Settlement Amount shall be tendered for payment. The City will send counsel for Plaintiff the Settlement Amount made payable to "The Draitser Firm, APC Client Trust Account". Payment of the total Settlement Amount shall exhaust and forever discharge the C ity's obligations to tender payment to Plaintiff, and/or any of Plaintiff's representatives, for any and all matters addressed by this Agreement and/or the Lawsuit. With respect to the payment of the Settlement Amount, and as previous ly referenced, Plaintiff is responsible for the payment of any and all amounts governmental or tax authorities may claim are due, if any, out of the Settlement Amount. Plaintiff acknowledges that the City is relying on, among other things, this specific provision in entering into this Settlement Agreement, in paying the Settlement Amount, and that this Settlement Agreement is not contingent upon any particular tax characterization or treatment of the Settlement Amount. 3. RELEASE In consideration of the forego ing payment, Plaintiff hereby forever, irrevocably and unconditionally releases and discharges the City, its current and former council members, supervisors, officers, directors, employees, affiliates, contractors, predecessors, administrators, successors, assigns, insurers, reinsurers, ri sk pools, and all other persons, firms, corporations, attorneys and representatives, and all persons acting by, through or in concert with them (all of whom are collectively referred herein to as "Released Parties") from any and all cla ims, causes of action, complaints, charges, demands, liabilities, losses, costs, lien, or expenses of any kind whatsoever (including attorney's fees and costs), known or unknown, suspected or unsuspected, that Plaintiff may now have or has ever had against the City and Released Parties by reason of any act, omission, transaction or event occurring up to and including the date all Parties execute this Agreement (the "Released Claims"). Plaintiff expressly agrees that a ll rights he may have under section 1542 of the Civil Code of the State of California are hereby waived, and Plaintiff acknowledges and understands that this Agreement has been executed with the express intent of extinguishing all obligations described herein and as provided in Section 1542 of the California Civil Code. Section 1542 provides as fol lows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH AND THAT IF KNOWN BY HIM Page 2 of 5 DocuSign Envelope ID: 527F201F-C232-4ED9-9A7F-A3396618479F OR HER, MUST WOULD HAVE MATERIALLY AFFECTED ms OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." The Released Claims including, without limitation, any and all attorney's fees and costs related thereto, are forever barred by this Agreement and without regard to whether those claims are based on any alleged breach of a duty arising in a statute (both California and federal), contract (whether express, oral or implied) or tort; any alleged unlawful act, including without limitation any violation of state or federal law, statute or regulation; any other claim or cause of action; and regardless of the forum in which it might be brought. 4. REPRESENTATION AND WARRANTIES In further consideration for the above-mentioned value and consideration provided by the City, and in settlement of the above-referenced claims and disputes, Plaintiff and the City represent and warrant as follows: All Parties represent and warrant that they are (or their agent or representative is) a competent and a legal adult in excess of 18 years of age with the legal capacity to understand and to enter into this Agreement. All Parties represent and warrant that they (or their agent or representative) have not previously assigned, transferred, granted or purported to assign, transfer or grant any of the claims, rights, demands or causes of action, whether known or unknown, anticipated or unanticipated, disposed of by this Settlement Agreement. All Parties thereby represent and warrant that they maintain complete authority to enter into this agreement and to forever dismiss and discharge the claims, rights, demands and causes of action, whether known or unknown, anticipated or unanticipated, arising out of, in any way connected to, or resulting from Plaintiffs allegations in the Lawsuit. 5. FEE AND COST W AIYER As referenced herein, the Parties to this Agreement agree to bear their own attorney's fees and costs for prosecution and/or defense of the subject matter and any other expenses for all matters related to or arising from the matter. 6. SATISFACTION OF LIENS Plaintiff will indemnify and hold the City and Released Parties, their attorneys and their insurance companies and risk pools, harmless from any and all past, present or future claims, demands, or liability for liens (workers compensation, medical or otherwise), Medi-Cal (State of California Benefits), Medicare or other governmental health coverage providers/insurers' conditional payments and rights to repayment, whether known or unknown. To the extent any further governmental healthcare/statutory lien, or private lien of any nature (including expert liens or attorney liens), is asserted against the recovery in this matter, Plaintiff agrees to be solely responsible for the discharge of such obligation and will fully satisfy and resolve such matters out of the Settlement Amount, without further contribution or payment of any kind by, or on behalf of, the City. Additionally, to the extent any attorney fee/cost liens or liens associated with Page 3 of 5 DocuSign Envelope ID: 527F201F-C232-4ED9-9A7F-A3396618479F any expert-related work commissioned on behalf of (or for the benefit of) Plaintiff for the lawsuit, Plaintiff further agrees to satisfy and discharge such liens out of the Settlement Amount and agree to indemnify and hold the City and Released Parties harmless from any such liens. In recognizing this is a resolution of a disputed matter, the Parties further recognize the potential limiting implications posed by Government Code section 985(b), in light of the City's status as a public entity and the col lateral source payments already tendered for Plaintiffs medical care in this matter. In reaching the resolution outlined in this Agreement, the Parties have had an opportunity to consult counsel of their own choosing and reach this resolution with specific consideration of the potential impact of Government Code section 985(b). 7. NO FURTHER CLAIMS Plaintiff expressly agrees that neither he nor her heirs, assigns, executors, administrators, agents, employees, affili ates, managers, owners, or successors, will continue and/or institute any legal or administrative proceedings against the City or Released Parties before any court, administrative agency, arbitrator, or any other tribunal whatsoever, by reason of any claim, liability or cause of action, whether known or unknown, being released herein. Plaintiff represents and warrants that he has not presented, and shall not present, any claim for benefits to any employer or insurance entity under the Workers Compensation system. Plaintiff represents and warrants that if such claim is later presented against the commitments outlined herein, he shall indemnify and hold the City and all Released Parties harmless (including attorneys' fees and costs) from and against any liens, rights, demands or subrogation efforts that such employer or insuring entity may later assert or be entitled to recover. 8. INTEGRATION AND INTERPRETATION This Agreement is the result of negotiation between the Parties and is the fully integrated and final expression of the settlement described herein and supersedes any and all previous written or oral communications. This Agreement may not be altered, changed, or amended without a subsequent written document signed by al I of the Parties. 9. SEVERABILITY ln the event that any one provision or portion of this Agreement is later determined by a court of competent jurisdiction to be void or voidable, the Parties agree that any such language or provisions shall be severable, and that any such provisions so severed shall not affect the validity of the remainder of the Agreement subsequent to such severance. 10. ENFORCEABILITY The Parties agree that the Court will retain jurisdiction to enforce this Agreement pursuant to CCP §664.6. The Parties agree that if either party seeks to enforce this Agreement, it may be done on an ex parte application. Page 4 of 5 DocuSign Envelope ID: 527F201F-C232-4ED9-9A7F-A3396618479F 11. COMPLETE AGREEMENT No party has made any statement, representation, or promise other than as set forth herein. Any representation, warranty, promise, or condition, whether written or oral, not specifically incorporated herein, shall not be binding upon any of the Parties and Plaintiff acknowledges that in entering into this Agreement he has not relied upon any representations, promises, or conditions not specifically set forth herein. 12. COUNTERPARTS This Agreement may be executed in counterparts, and, when all executed signatures pages are taken together, shall constitute a complete Agreement. An electronic signature has the same force and effect as an original signature. Dated: 5/5/2023 Dated: 511.2.j,02,3 Eric Axford ~~~ Name: Clvt.i\.;.e. \t.. t---\c Mtt ~ tJ vi Title: C,...,h.3 A tt O V n.e.::, City of Carlsbad Page 5 of 5