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HomeMy WebLinkAboutJEFFERY DOHERTY - 2001-02-05r I� CITY OF HUNTINGTON BEACH Inter Department Communication TO: Dale Jones, Deputy City Clerk FROM: Scott Field, Assistant City Attorney DATE: March 31, 2003 SUBJECT: Doherty v. City of Huntington Beach, OCSC Case No. OOCC00677 Enclosed please find the fully executed Settlement Agreement and Uniform Qualified Assignment in the above matter. Scott Field Assistant City Attorney Enclosures GAFIELD\2003 Memos\Doherty.doc This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this _tom day of February , 2001, by and between: "Claimant" Jeffrey Doherty, a minor, by and through his father and guardian ad litem, Richard Doherty "Defendant" City of Huntington Beach Recitals A. On or about July 4, 1999, Claimant was injured in an accident occurring at or near the intersection of 13'' and Orange, in the City of Huntington Beach, California. Claimant alleges that the accident and resulting physical and personal injuries arose out of a certain alleged dangerous condition and/or negligent acts or omissions of Defendant, and has brought suit in the Orange County Superior Court in an action entitled JEFFREY DOHERTY, a Minor by Richard Doherty as Guardian Ad Litem v. City of Huntington Beach, Case No.: OOCC00677 (hereinafter the "Action") seeking monetary damages on account of those injuries. B. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. . Agreement 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Claimant hereby completely releases and forever discharges Defendant from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant, or any future wrongful death claim of Claimant's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. 1.2 This release and discharge shall also apply to Defendant's past, present and future officers, attorneys, agents, servants, representatives, employees, successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. -1- 1.3 This release, on the part of the Claimant, shall be a fully binding and complete settlement among the Claimant, the Defendant and its assigns and successors. The parties acknowledge that this settlement was duly approved by Judge Linda C. Martinez of the Orange County Superior Court on January 5, 2001. 1.4 The Claimant acknowledges and agrees that the release and discharge set forth above is a general release. Claimant expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Claimant does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Claimant's decision to enter into this Settlement Agreement. The Claimant further agrees that Claimant has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Claimant assumes the risk that the facts or law may be other than Claimant 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. 1.5. The releasor(s) hereby waives any and all rights based upon the provisions of California Civil Code Section 1542 which reads 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 to 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 the individual(s) named below ("Payee(s)") the sums outlined in this Section 2 below: 2.1 Payments at the time of settlement as follows: Attorney Fees: $6,528.65 Attorney Costs:' $3,885.40 Liens: $ 705.74 Court Approved Blocked Account:$4,720.05 -2- Payments"): 2.2 Periodic payments made according to the schedule as follows (the "Periodic Periodic Payments payable to: Jeffrey Doherty Education Fund: Commencing at age 19 (03/05/2004); $5,870.00 every year for 3 years (Total cost for the above annuity: $14,160.16) All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 3.0 Claimant's Right to Payments Claimant acknowledges that Periodic Payments cannot be accelerated, deferred, or increased or decreased by Claimant; nor shall the Claimant have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Claimant's Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Claimant to Defendant or Defendant's Assignee. If no person or entity is so designated by Claimant, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to Defendant. or Defendant's Assignee. The designation must be in a form acceptable to Defendant or Defendant's Assignee before such payments are made. 5.0 Consent to Qualified Assignment 5.1 Claimant acknowledges and agrees that the Defendant may make a "qualified assignment", within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of the Defendant's liability to make the Periodic Payments set forth in Section 2.2 to Jamestown Life Insurance Company, ("Assignees"). The Assignees' obligation for payment of the Periodic Payments shall be no greater than that of Defendant(whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation. 5.2 Any such assignment, if made, shall be accepted by the Claimant without right of rejection and shall completely release and discharge the Defendant from the Periodic Payments obligation assigned to the Assignee. The Claimant recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Defendant shall thereupon become final, irrevocable and absolute. -3- is 6.0 Right to Purchase an Annuity The Defendant, itself or through its Assignee, reserve the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from First Colony Life Insurance Company. The Defendant or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defendant or the Assignee may have First Colony Life Insurance Company mail payments directly to the Payee(s). Claimant shall be responsible for maintaining a current mailing address for Payee(s) with First Colony Life Insurance Company. 7.0 Discharge of Obligation The obligation of the Defendant and/or Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement. 8.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. 9.0 Representation of Comprehension of Document In entering into this Settlement Agreement the Claimant represents that Claimant has relied upon the advice of his attorneys, who are the attorneys of his own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimant by his attorneys; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimant. 10.0 Warranty of Capacity to Execute Agreement Claimant represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes or action referred to in this Settlement Agreement, except' as otherwise set forth herein; that Claimant has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Claimant has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. -4- • 11.0 Confidentiality The parties agree that neither their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, any of the terms of this Settlement Agreement or any of the amounts, number or terms and conditions of any sums payable to Payee(s) hereunder. 12.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. For the protection of the undersigned Claimant, California law requires the following to appear.on this form: "IT IS UNLAWFUL TO (A) PRESENT OR CAUSE TO BE. PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS UNDER A CONTRACT OF INSURANCE AND (B) PREPARE, MAKE OR SUBSCRIBE ANY WRITING WITH INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM, ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNISHABLE BY IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS ($1000) OR BOTH" 13.0 Additional Documents All parties agree to cooperate fully & Execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement, including, but not limited to the Dismissal, with prejudice, of the above -referenced Action. 14.0 Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimant, the Defendant and the Insurer with regard to the matters set forth in it and shall be binding upon and inure to the benefits of the executors, administrators, personal representatives, heirs ,successors and assigns of each. 511 _-_z 15.0 Effectiveness This Settlement Agreement shall become effective immediately following execution by each of the parties. Claimant: Jeffrey Doherty , a minor, by and through his father and guardian ad litem, Richard D herty Richard Doherty Date: z ",2 3' Attorne for Claimant : Peter F. Musielski, sq. Date: Defendant: City of Huntington Beach By: Ntgrm `ri.� utl�Nv Duly Authori d Representative Title: Mayor Date: 02 - 7-1— 01 Attorney for D fendant: City of Huntington Beach Nea Moore, Esq. Date: Z' Z 2- 0 1 ATT`W: City Clerk 02_, APPROVED AS TO FORM: Gail Hutton City Attorney W . . 4 "Claimant" "Assignor" "Assignee" Uniform Qualified Assignment Jeffrey Doherty City of Huntington Beach Jamestown Life Insurance Company "Annuity Issuer" First Colony Life Insurance Company "Effective Date" �-Aay-ch 51 ?001 This Agreement is made and entered into by and between the parties hereto as of the Effective Date with reference to the following facts: A. Claimant has executed a settlement agreement or release dated 02-05-01 (the "Settlement Agreement") that provides for the Assignor to make certain periodic payments to or for the benefit of the Claimant as stated in Addendum No. 1 (the "Periodic Payments"); and B. The parties desire to effect a "qualified assignment" within the meaning and subject to the conditions of Section 130 (c) of the Internal Revenue Code of 1986 (the "Code"). NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties agree as follows: increased or decreased and may not be anticipated, sold, assigned or encumbered. 4. The obligation assumed by Assignee with respect to any required payment shall be discharged upon the mailing on or before the due date of a valid check in the amount specified to the address of record. 5. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 6. The Assignee may fund the Periodic Payments by purchasing a "qualified funding asset" within the meaning of Section 130(d) of the Code in the form of an annuity contract issued by the Annuity Issuer. All rights of ownership and control of such annuity contract shall be and remain vested in the Assignee exclusively. The Assignor hereby assigns and the 7. Assignee hereby assumes all of the Assignor's liability to make the Periodic Payments. The Assignee assumes no liability to make any payment not specified in Addendum No. 1. 2. The Periodic Payments constitute damages on account of personal injury or sickness in a case involving physical injury or physical sickness within the meaning of Sections 104(a)(2) and 130(c) of the Code. 3. The Assignee's liability to make the Periodic Payments is no greater than that of the Assignor immediately preceding this Agreement. Assignee is not required to set aside specific assets to secure the Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. None of the Periodic Payments may be accelerated, deferred, The Assignee may have the Annuity Issuer send payments under any "qualified funding asset" purchased hereunder directly to the payee(s) specified in Addendum No. 1. Such direction of payments shall be solely for the Assignee's .convenience and shall not provide the Claimant or any payee with any rights of ownership or control over the "qualified funding asset" or against the Annuity Issuer. 8. Assignee's liability to make the Periodic Payments shall continue without diminution regardless of any bankruptcy or insolvency of the Assignor. 9. In the event the Settlement Agreement is declared terminated by a court of law or in the event that Section 130 (c) of the code has not been satisfied, this Agreement shall terminate. The Assignee shall then assign ownership of any "qualified funding asset" purchased hereunder to Assignor and Assignee's liability for the Periodic Payments shall terminate. Assignor. City of Huntington Beach r 10. This Agreement shall be binding upon the respective representatives, heirs, successors and assigns of the Claimant, the Assignor and the Assignee and upon any person or entity that may assert any right hereunder or to any of the Periodic Payments. Assignee: Jamestown Life Insurance Company By: By: Autho ' ed Represehrat[Vr odzed Representative Title: Mayor Attest: City Clerk - Approved as to ford: Gail Hutton City Attorney Title: Wor VICe Pr�►ds Addendum No.1 Description of Periodic Payments Periodic Payments IlUable to: Jeffrey Doherty Education Fund: 4 Commencing at age 19 (03/02004); $5,870.00 every year for 3 years AS'";` i 1:*6 AIPPL+taTill�IW Stt�'TY►tcti 5I'aMP - - .�- -_-- firstColon if �surance �mpan �loll®©- _ Lynchburg, Virginia 24505 = a A Stock Company Will pay the Owner, or such payee as the Owner may designate, the annuity payments specified in the Schedule. Annuity payments commence on the Date of First Annuity Payment. They continue to be made on each payment date throughout the Certain Period. Any payment is subject to the provisions on this page and the following pages. The consideration for this Contract is the payment of the Single Premium on or before contract delivery. The Owner may return this Contract within 20 days after its delivery. To return this Contract, the Owner must deliver it or mail it to the Company or to the agent/broker through whom it was purchased. Immediately upon delivery or mailing, this Contract will be deemed void from the beginning. Any premium received by the Company, less any payments made under this Contract, will be returned to the premium payor. Signed at the home office at 700 Main Street, Lynchburg, Virginia, on the Contract Date. Single Premium President Secretary SINGLE PREMIUM ANNUITY CERTAIN Annuity Payments Specified In Schedule Nonparticipating - No Dividends 3846302 Contract Number $1.00 AND OTHER GOOD AND 01/29/01 Contract Date VALUABLE CONSIDERATION Form No. 8201 • SCHEDULE • NO NONFORFEITURE BENEFITS OR DEATH BENEFITS ARE PROVIDED UNDER THIS CONTRACT. Owner JAMESTOWN LIFE INSURANCE COMPANY Contingent NOT DESIGNATED BY THE Owner CONTRACT DATE The Owner, any Contingent Owner, and the initial payee(s) designated in the Schedule are subject -to change as provided in this Contract. Date of First Annuity Payment 03/04/04 Date of Last Annuity Payment As specified by the Annuity payments Certain Period As specified by the Annuity payments Single Premium $1.00 AND OTHER GOOD AND VALUABLE CONSIDERATION 3846302 Contract Number O1/29�1. aly y Form No. 8201-5 3 If the application was taken by an agent who is a resident of West Virginia, the fol- lowing must be completed and signed by a licensed resident agent. Countersigned at City State This day of , By Licensed Resident Agent COPY Form No. CS-2-02 (Rev.6/2000) GENERAL PROVISIONS THE CONTRACT This Contract is the entire agreement between the Owner and First Colony Life Insurance Company. Only the President, a Vice President, or the Secretary of the Company can change or waive any provision of this Contract. Any change or waiver must be made in writing by the Company. LIMITATION ON An agent/broker may not change or waive the terms of this Contract. AGENT/BROKER'S AUTHORITY OWNER The Owner and any Contingent Owner are designated in the Schedule, and these designations remain in effect until changed by the Owner. The Owner may also designate a Contingent Owner after the Contract Date by filing written notice at the home office in a form acceptable to the Company. The Owner has all rights stated in this Contract. The Owner may amend this Contract with the Company's consent. The Owner's rights are, however, subject to the rights of an irrevocable payee and to the terms of any existing collateral assignment. If the Owner dies while this Contract is in force, all rights of the Owner vest in the Contingent Owner, if living, and the Contingent Owner becomes the Owner. If no Contingent Owner is designated or the designated Contingent Owner is not alive at the Owner's death, all ownership rights vest in the Owner's estate or successors. PAYEE The initial payee is designated in the Schedule, and this designation remains in esffect until changed by the Owner. When a payee designation names two or more payees to receive payments at the same time and their respective interests are not specified, payments will be divided equally among the survivor(s). At the death of the last payee, any remaining payments will be made to the Owner according to the payment schedule in effect at the death of such payee. If the Owner is not living, such payments will be made to the Owner's estate or successors. CHANGE OF The Owner may change the designations of Owner, Contingent Owner, and payee while OWNER, PAYEE this Contract. is in force. Any change is subject to the written consent of any irrevocable payee and to the terms of any existing collateral assignment. If the designation of Owner is changed, any then existing designation of Contingent Owner is revoked. Written notice of change of the Owner, Contingent Owner, and payee must be &_-d at the home office in a form acceptable to the Company. The new designation will then take effect as of the date the Owner signed the notice. Such a change does not affect any payment made or other action taken by the Company before the notice is received. The Company may require that this Contract be returned in order to make any changes. COLLATERAL The Company is not responsible for the validity, effect, or tax treatment of any ASSIGNMENT assignment of this Contract. No assignment will.bind the Company until it is received at the home office. Only the Owner has the right to make a collateral assignment of this Contract. INCONTESTABILITY This Contract is incontestable from the Contract Date. (Continued) COPY Form No. 8201.1 • RINGLER ASSOCIATES �:•% (949) 833-3910 (800) 734-3910 0 Fax (949) 833-3687 CA License No. OA04077 March 16, 2001 Neal Moore, Esq. Law Offices of Moore, Rutter & Evans c/o City of Huntington Beach 2120 Main Street, Suite 250 Huntington Beach, CA 92648 Re: Claimant: Jeffrey Doherty DOB: 3-5-85 Insured: City of Huntington Beach File No.: 2806 Dear Mr. Moore: Enclosed please find a copy of the annuity contract representing settlement of the above captioned matter. The original of the contract will be maintained within the offices of First Colony Life Insurance Company in a permanent file, as owners of same. Also enclosed is a copy of the fully executed Uniform Qualified Assignment. Plaintiffs counsel should note that he is being provided with two copies of the annuity contract, one of which should be forwarded to his client for their records. Plaintiff should note that as part of our continuing service, we provide assistance with late payments and change of beneficiary designations and address changes in the future. Should there be any questions in the future, please refer them to our office for handling. Thank you for allowing us to assist with this settlement. If we can be of additional assistance at any time, please do not hesitate to contact us. Very truly yours, RI GLER ASSOCIATES Margi Breun e for James J. Brady 1201 DOVE STREET • SUITE 300 • NEWPORT BEACH, CA 92660 www.RinglerAssociates.com Atlanta, Baltimore, Bedford (NH), Birmingham, Boston, Buffalo, Charlotte, Chicago, Cincinnati, Cleveland, Dallas/Fort Worth, Denver, Detroit, Fort Lauderdale/Miami, Hartford, Honolulu, Houston, Indianapolis, Kansas City, Laguna Hills (CA), London, Medford (NJ), Minneapolis, Morristown (NJ), New Orleans, New York, Newport Beach (CA), North Andover (MA), Omaha, Orlando, Philadelphia, Phoenix, Pittsburgh, Portland (ME), Providence, Sacramento, Salt Lake City, San Francisco, San Francisco (Bay Area), Seattle, St. Louis, St. Petersburg (FL), Tampa, Washington, DC Member National Structured Settlements Trade Association Re: Claimant: Jeffrey Doherty March 16, 2001 Page 2 Enclosures cc: VIA FEDERAL EXPRESS Peter F. Musielski, Esq. Law Offices of Peter F. Musielski 1801 Park Court Place Bldg. "I", Suite 104 Santa Ana, CA 92701 . I(A) Main S,rNe,. Fa Box 615e Lpnchhurg,'/^ 2450,-6158 8170 4:+i ti631 March 5, 2001 Margi Breunle Ringler Associates, Inc. Suite 300 1201 Dove St Newport Beach CA 92660 RE: Jeffrey Doherty #3846302 Structured Settlements Dear Margi Breunle: On the case referenced above, in accordance with the Application, Settlement Agreement and Court Order, we have amended the UQA to read as follows: Commencing at age 19 (0310412004); $5, 870.00 every year for 3 years If you have any questions or concerns please contact me at (804) 948-5767. Sincerely, Tracie Bryant -McCarthy Case Manager Annuity Dept. . ... .. .. .. CG;:. �@ �!:•�(.':. ^:C' � . :.. riy:. ,,i't .�. , 1�:�AP,�`iv✓r•I ..Ni: ail"U _ �? ,'Q;7;;SA: t,�y?1+;.'jd7'� 0' • File Notes Office of the City Clerk Huntington Beach, California Av^-Z1t`2gn GN%Wo "I.i (W4 g1`I s l�a� Hughes, Jeffrey From: Vi, Thuy Sent: Thursday, September 26, 2002 12:01 PM To: Hughes, Jeffrey Subject: Status on Settlement Agreements Hi Jeffrey, I just wanted to let you know that I am working on getting copies of the settlement Agreements. On Doherty, I have been waiting for months for outside counsel to get us a copy of the settlement agreement from storage, they said they'd get it to us next week. On Logan W., outside counsel hasn't received the fully executed settlement agreement back yet. Thanks, Thuy MOORE, RUTTER & EVANS LAWYERS NEALMOORE 2120 MAIN STREET, SUITE 250 LOS ANGELES COUNTY OFFICE MARK D. PUTTER HUNTINGTON BEACH, CALIFORNIA 92648 W ILLIAM D. EVANS, P.C. 555 EAST OCEAN BLVD., SUITE 500 RICHARD J. VILKIN TELEPHONE: (714) 374-3333 LONG BEACH, CA 90902 FACSIMILE: (714) 374-9395 TELEPHONE: (562) 435.4499 MICHAEL J. EMLING FAX: (562) 495.4299 OF COUNSEL EMAIL: mrelawagte.net February 20, 2001 Scott Field, Assistant City Attorney City of Huntington Beach N 2000 Main Street - P.O. Box 190 Huntington Beach, CA 92648 C� Re: Doherjy v. City of Huntington Beach, et al. Claimant: Jeffrey Doherty - L;t Date/Loss: 7/4/99 y - Our File: 2806 =J Dear Scott: The Settlement Agreement and Release and Uniform Qualified Assignment that were executed on behalf of the City earlier this month were mailed to plaintiff's counsel on February 12, 2001-, but, reportedly were never received. Rather than wait any longer for the agreements to show up, I would like to get another set of signed originals Accordingly, enclosed herewith is an unsigned set of agreements for execution on behalf of the City. I have also enclosed herewith copies of the agreements previously executed on behalf of the City. The OSC re: dismissal by Commissioner Robinson is scheduled for March 12, 2001, and we need to get the agreements signed and the dismissal filed before that date. Would you please let me know how long it is going to take to get another set of agreements signed on behalf of the City. Thank you. Very truly yours, Neal Moore . NM:cl Enclosures SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this _5_t;h_ day of February , 2001, by and between: "Claimant" Jeffrey Doherty, a minor, by and through his father and guardian ad litem, Richard Doherty "Defendant" City of Huntington Beach Recitals A. On or about July 4, 1999, Claimant was injured in an accident occurring at or near the intersection of 13'' and Orange, in the City of Huntington Beach, California. Claimant alleges that the accident and resulting physical and personal injuries arose out of a certain alleged dangerous condition and/or negligent acts or omissions of Defendant, and has brought suit in the Orange County Superior Court in an action entitled JEFFREY DOHERTY, a Minor by Richard Doherty as Guardian Ad Litem v. City of Huntington Beach, Case No.: OOCC00677 (hereinafter the "Action") seeking monetary damages on account of those injuries. B. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. Agreement 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Claimant hereby completely releases and forever discharges Defendant from any and all past, present or future claims, demands, obligations,. actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant, or any future wrongful death claim of Claimant's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. 1.2 This release and discharge shall also apply to Defendant's past, present and future officers, attorneys, agents, servants, representatives, employees, successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. -1- 1.3 This release, on the part of the Claimant, shall be a fully binding and complete settlement among the Claimant, the Defendant and its assigns. and successors. The parties acknowledge that this settlement was duly approved by Judge Linda C. Martinez of the Orange County Superior Court on January 5, 2001. 1.4 The Claimant acknowledges and agrees that the release and discharge set forth above is a general release. Claimant expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Claimant does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Claimant's decision to enter into this Settlement Agreement. The Claimant further agrees that Claimant has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Claimant assumes the risk that the facts or law may be other than Claimant 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. 1.5. The releasor(s) hereby waives any and all rights based upon the provisions of California Civil Code Section 1542 which reads 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 to 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 the individual(s) named below ("Payee(s)") the sums outlined in this Section 2 below: 2.1 Payments at the time of settlement as follows: Attorney Fees: $6,528.65 Attorney Costs: $3,885.40 Liens: $ 705.74 Court Approved Blocked Account:$4,720.05 -2- Payments"): 2.2 Periodic payments made according to the schedule as follows (the "Periodic Periodic Payments payable to: Jeffrey Doherty Education Fund: Commencing at age 19 (03/05/2004); $5,870.00 every year for 3 years (Total cost for the above annuity: $14,160.16) All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 3.0 Claimant's Right to Payments Claimant acknowledges that Periodic Payments cannot be accelerated, deferred, or increased or decreased by Claimant; nor shall the Claimant have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Claimant's Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Claimant to Defendant or Defendant's Assignee. If no person or entity is so designated by Claimant, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to Defendant or Defendant's Assignee. The designation must be in a form acceptable to Defendant or Defendant's Assignee before such payments are made. 5.0 Consent to Qualified Assignment 5.1 Claimant acknowledges and agrees that the Defendant may make a "qualified assignment", within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of the Defendant's liability to make the Periodic Payments set forth in Section 2.2 to Jamestown Life Insurance Company, ("Assignees"). The Assignees' obligation for payment of the Periodic Payments shall be no greater than that of Defendant(whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation. 5.2 Any such assignment, ifmade, shall be accepted by the Claimant without right of rejection and shall completely release and discharge the Defendant from the Periodic Payments obligation assigned to the Assignee. . The Claimant recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Defendant shall thereupon become final, irrevocable and absolute. -3- 6.0 Right to Purchase an Annuity The Defendant, itself or through its Assignee, reserve the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from First Colony Life Insurance Company. The Defendant or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defendant or the Assignee may have First Colony Life Insurance Company mail payments directly to the Payee(s). Claimant shall be responsible for maintaining a current mailing address for Payee(s) with First Colony Life Insurance Company. 7.0 Discharge of Obligation The obligation of the Defendant and/or Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement. 8.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. 9.0 Representation of Comprehension of Document In entering into this Settlement Agreement the Claimant represents that Claimant has relied upon the advice of his attorneys, who are the attorneys of his own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimant by his attorneys; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimant. 10.0 Warranty of Capacity to Execute Agreement Claimant represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes or action referred to in this Settlement Agreement, except as otherwise set forth herein; that Claimant has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Claimant has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. -4- 11.0 Confidentiality The parties agree that neither their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, any of the terms of this Settlement Agreement or any of the amounts, number or terms and conditions of any sums payable to Payee(s) hereunder. 12.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. For the protection of the undersigned Claimant, California law requires the following to appear on this form: "IT IS UNLAWFUL TO (A) PRESENT OR CAUSE TO BE PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS UNDER A CONTRACT OF INSURANCE AND (B) PREPARE, MAKE OR SUBSCRIBE ANY WRITING WITH INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM, ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNISHABLE BY IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS ($1000) OR BOTH" 13.0 Additional Documents All parties agree to cooperate fully & Execute any and all supplementary documents. and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement, including, but not limited to the Dismissal, with prejudice, of the above -referenced Action. 14.0 Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimant, the Defendant and the Insurer with regard to the matters set forth in it and shall be binding upon and inure to the benefits of the executors, administrators, personal representatives, heirs ,successors and assigns of each. -5- 15.0 Effectiveness This Settlement Agreement shall become effective immediately following execution by each of the parties. Claimant: Jeffrey Doherty, a minor, by and through his father and guardian ad litem, Richard Doherty Richard Doherty Date: Attorney for Claimant: Peter F. Musielski, Esq. Date: Defendant: City of Huntington Beach `7h By: M !�: � Duly Authori d Representative Title: Mayor Date: 02 - 21-- 01 Attorney for Defendant: City of Huntington Beach Neal Moore, Esq. Date: ATT�� City Clerk 07-Z)-gf APPROVED AS TO FORM: Gail Hutton City Attorney "Claimant" "Assignor" "Assignee" "Annuity Issuer" "Effective Date" Uniform Qualified Assignment Jeffrey Doherty City of Huntington Beach Jamestown Life Insurance Company First Colony Life Insurance Company This Agreement is made and entered into by and between the parties hereto as of the Effective Date with reference to the following facts: A. Claimant has executed a settlement agreement or release dated 02-05-01 (the "Settlement Agreement") that provides for the Assignor to make certain periodic payments to or for the benefit of the Claimant as stated in Addendum No. 1 (the "Periodic Payments"); and B. The parties desire to effect a "qualified assignment" within the meaning and subject to the conditions of Section 130 (c) of the Internal Revenue Code of 1986 (the "Code"). NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties agree as follows: The Assignor hereby assigns and the Assignee hereby assumes all of the Assignor's liability to make the Periodic Payments. The Assignee assumes no liability to make any payment not specified in Addendum No. 1. 2. The Periodic Payments constitute damages on account of personal injury or sickness in a case involving physical injury or physical sickness within the meaning of Sections 104(a)(2) and 130(c) of the Code. 3. The Assignee's liability to make the Periodic Payments is no greater than that of the Assignor immediately preceding this Agreement. Assignee is not required to set aside specific assets to secure the Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. None of the Periodic Payments may be accelerated, deferred, increased or decreased and may not be anticipated, sold, assigned or encumbered. 4. The obligation assumed by Assignee with respect to any required payment shall be discharged upon the mailing on or before the due date of a valid check in the amount specified to the address of record. 5. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 6. The Assignee may fund the Periodic Payments by purchasing a "qualified funding asset" within the meaning of Section 130(d) of the Code in the form of an annuity contract issued by the Annuity Issuer. All rights of ownership and control of such annuity contract shall be and remain vested in the Assignee exclusively. The Assignee may have the Annuity Issuer send payments under any "qualified funding asset" purchased hereunder directly to the payee(s) specified in Addendum No. 1. Such direction of payments shall be solely for the Assignee's convenience and shall not provide the Claimant or any payee with any rights of ownership or control over the "qualified funding asset" or against the Annuity Issuer. 8. Assignee's liability to make the Periodic Payments shall continue without diminution regardless of any bankruptcy or insolvency of the Assignor. • 9. In the event the Settlement Agreement is declared terminated by a court of law or in the event that Section 130 (c) of the code has not been satisfied, this Agreement shall terminate. The Assignee shall then assign ownership of any "qualified funding asset" purchased hereunder to Assignor and Assignee's liability for the Periodic Payments shall terminate. Assignor: City of Huntington Beach 10. This Agreement shall be binding upon the respective representatives, heirs, successors and assigns of the Claimant, the Assignor and the Assignee and upon any person or entity that may assert any right hereunder or to any of the Periodic Payments. Assignee: Jamestown Life Insurance Company By. By._ Author ed Represen ative Title: Mayor Title: Attest: dv �,c,�v City Clerk Approved as to form: c;L�rr Gail Hutton City Attorney Authorized Representative I I "I : 0 : . 0 Addendum No.1 Description of Periodic Payments Periodic Payments payable to: Jeffrey Doherty Education Fund: Commencing at age 19 (03/05/2004); $5,870.00 every year for 3 years Initials N4M Assignor: ($1%NA1vKe STAMP) Assignee Printed in USA UQA ED. 4-88 Council/Agency Meeting Held: Deferred/Continued to: A proved ❑ Conditionally Approved ❑ Denied _ pzp City Clerk's Signature Council Meeting Date: d2 - d5-01 Department ID Number: CITY OF HUNTINGTON BEACH REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUP4CIL +' SUBMITTED BY: RAY SILVER, City Administrator AeW A _ PREPARED BY: GAIL HUTTON, City Attorney (�OZ t�`a - SUBJECT: Approve Settlement Document in DOHERTY v. CITY OF HUNTINGTON BEACH Orange County Superior Court Case No. OOCC00677 Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) -- Statement of Issue: Whether to authorize the Mayor to sign and the City Clerk to attest to the settlement agreement and related documents in Doherty v. City of Huntington Beach. Funding Source: Risk Management Budget Litigation Account No. E-IC-AS-870-4-05-00 - $30,000. Recommended Action: Approve and authorize the Mayor to execute and the City Clerk to attest to the Settlement Agreement, the Uniform- Qualified Assignment and related documents in the settlement of the case entitled Doherty v. City of Huntington Beach. Alternative Action(s): Do not authorize the Mayor to execute the Agreement. Analysis: Plaintiff was a youth who was injured on his bicycle in July 1999. The bicycle accident occurred when plaintiff's bicycle wheel became wedged in a storm drain grate that was lacking bicycle or safety straps. At the closed session on November 20, 2000, the City Council authorized $30,000 to settle this matter. Plaintiff has accepted the settlement amount. The Settlement Agreement and Release and the Uniform Qualified Assignment are attached,as executed by plaintiffs. The assignment will allow for the purchase of an annuity to pay for the minor's college education. In addition, further documents maybe necessary to complete the settlement agreement. Along with requesting the Mayor be authorized to execute and the City Clerk to attest to the Settlement agreement and the Assignment, this authorization also includes any additional documents the City Attorney deems necessary in order to complete the settlement. E'� II •C5 am IN ,�c 6 • REQUEST FOR ACTION • MEETING DATE: 2/5/01 Environmental Status: N/A Attachment(s): RCA Author: Field DEPARTMENT ID NUMBER: Doherty v. City 1 01 -2- 1/19/01 10:56 AM ATTACHMENT #1 0 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this '5Mday o�`f 2001, by and between: "Claimant" Jeffrey Doherty, a minor, by and through his father and guardian ad litem, Richard Doherty "Defendant" City of Huntington Beach Recitals A. On or about July 4, 1999, Claimant was injured in an accident occurring at or near the intersection of I' Ph and Orange, in the City of Huntington Beach, California. Claimant alleges that the accident and resulting physical and personal injuries arose out of a certain alleged dangerous condition and/or negligent acts or omissions of Defendant, and has brought suit in the Orange County Superior Court in an action entitled JEFFREY DOHERTY, a Minor by Richard Doherty as Guardian Ad Litem v. City of Huntington Beach, Case No.: OOCC00677 (hereinafter the "Action") seeking monetary damages on account of those injuries. B. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. Agreement 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Claimant hereby completely releases and forever discharges Defendant from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant, or any future wrongful death claim of Claimant's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. 1.2 This release and discharge shall also apply to Defendant's past, present and future officers, attorneys, agents, servants, representatives, employees, successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 1.3 This release, on the part of the Claimant, shall be a fully binding and complete settlement among the Claimant, the Defendant and its assigns and successors. The parties acknowledge that this settlement was duly approved by Judge Linda C. Martinez of the Orange County Superior Court on January 5, 2001. 1.4 The Claimant acknowledges and agrees that the release and discharge set forth above is a general release. Claimant expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Claimant does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Claimant's decision to enter into this Settlement Agreement. The Claimant further agrees that Claimant has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Claimant assumes the risk that the facts or law may be other than Claimant 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. 1.5. The releasor(s) hereby waives any and all rights based upon the provisions of California Civil Code Section 1542 which reads 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 to 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 the individual(s) named below ("Payee(s)") the sums outlined in this Section 2 below: 2.1 Payments at the time of settlement as follows: Attornev Fees: $6,528.65 Attornev Costs: $3,885.40 Liens: $ 705.74 Court Approved Blocked Account:$4,720.05 E -2- • • Payments"): 2.2 Periodic payments made according to the schedule as follows (the "Periodic Periodic Payments pavable to: Jeffrey Doherty Education Fund: Commencing at age 19 (03/05/02004); $5,870.00 every year for 3 years All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 3.0 Claimant's Right to Payments Claimant acknowledges that Periodic Payments cannot be accelerated, deferred, or increased or decreased by Claimant; nor shall the Claimant have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Claimant's Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Claimant to Defendant or Defendant's Assignee. If no person or entity is so designated by Claimant, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to Defendant or Defendant's Assignee. The designation must be in a form acceptable to Defendant or Defendant's Assignee before such payments are made. 5.0 Consent to Qualified Assignment 5:1 Claimant acknowledges and agrees that the Defendant may make a "qualified assignment", within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of the Defendant's liability to make the Periodic Payments set forth in Section 2.2 to Jamestown Life Insurance Company, ("Assignees"). The Assignees' obligation for payment of the Periodic Payments shall be no greater than that of Defendant(whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation. 5.2 Any such assignment, if made, shall be accepted by the Claimant without right of rejection and shall completely release and discharge the Defendant from the Periodic Payments obligation assigned to the Assignee. The Claimant recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Defendant shall thereupon become final, irrevocable and absolute. 6.0 Right to Purchase an Annuity The Defendant, itself or through its Assignee, reserve the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from First Colony Life Insurance Company. The Defendant or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defendant or the Assignee may have First Colony Life Insurance Company mail payments directly to the Payee(s). Claimant shall be responsible for maintaining a current mailing address for Payee(s) with First Colony Life Insurance Company. 7.0 Discharge of Obligation . The obligation of the Defendant and/or Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement. 8.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. 9.0 Representation of Comprehension of Document In entering into this Settlement Agreement the Claimant represents that Claimant has relied upon the advice of his attorneys, who are the attorneys of his own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimant by his attorneys; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimant. 10.0 Warranty of Capacity to Execute Agreement Claimant represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes or action referred to in this Settlement Agreement, except as otherwise set forth herein; that Claimant has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Claimant has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. 11.0 Confidentiality The parties agree that neither their attorneys nor representatives shall reveal to anyone, other than as may be mutually agreed to in writing, any of the terms of this Settlement Agreement or any of the amounts, number or terms and conditions of any sums payable to Payee(s) hereunder. 12.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. For the protection of the undersigned CIaimant, California law requires the following to appear on this form: "IT IS UNLAWFUL TO (A) PRESENT OR CAUSE TO BE PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYiviENT OF A LOSS UNDER A CONTRACT OF INSURANCE AND (B) PREPARE, MAKE OR SUBSCRIBE ANY WRITING WITH INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM, ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNISHABLE BY IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDV G ONE THOUSAND DOLLARS (S1000) OR BOTH" 13.0 Additional Documents All parties agree to cooperate fully & Execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement, including, but not limited to the Dismissal, with prejudice, of the above -referenced Action. 14.0 Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimant, the Defendant and the Insurer with regard to the matters set forth in it and shall be binding upon and inure to the benefits of the executors, administrators, personal representatives, heirs ,successors and assigns of each. -5- 15.0 Effectiveness This Settlement Agreement shall become effective immediately following execution by each of the parties. Claimant: Jeffrey Doherty, a minor, by and through his father and guardian ad litem, Richard Doherty Richard Doherty Date: Attorney for Claimant: Peter F. Musielski, Esq. Date: Defendant: City of Huntington Beach By: A'Vr Duly Au orized Representative Title: Mayor Date: 07--- 08 — a Attorney for Defendant: City of Huntington Beach Neal Moore, Esq. Date: Im ,y AZ� City Clerk C2— p� vj Approved as to form: Gail Hutton City Attorney ATTACHMENT #2 l • • "Claimant" "Assignor" "Assignee" "Annuity Issuer" "Effective Date" Uniform Qualified Assignment Jeffrey Doherty City of Huntington Beach Jamestown Life Insurance Company First Colony Life Insurance Company This Agreement is made and entered into by and between the parties hereto as of the Effective Date with reference to the following facts: A. Claimant has executed a settlement agreement or release dated 02-05-01 (the "Settlement Agreement") that provides for the Assignor to make certain periodic payments to or for the benefit of the Claimant as stated in Addendum No. 1 (the "Periodic Payments"); and increased or decreased and may not be anticipated, sold, assigned or encumbered. 4. The obligation assumed by Assignee with respect to any required payment shall be discharged upon the mailing on or before the due date of a valid check in the amount specified to the address of record. B. The parties desire to effect a "qualified assignment" within the meaning and 6 subject to the conditions of Section 130 (c) of the Internal Revenue Code of 1986 (the "Code"). NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties agree as follows: The Assignor hereby assigns and the 7 Assignee hereby assumes all of the Assignor's liability to make the Periodic Payments. The Assignee assumes no liability to make any payment not specified in Addendum No. 1. 2. The Periodic Payments constitute damages on account of personal injury or sickness in a case involving physical injury or physical sickness within the meaning of Sections 104(a)(2) and 130(c) of the Code. 3. The Assignee's liability to make the Periodic Payments is no greater than that of the Assignor immediately preceding this Agreement. Assignee is not required to set aside specific assets to secure the Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. None of the Periodic Payments may be accelerated, deferred, This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The Assignee may fund the Periodic Payments by purchasing a "qualified funding asset" within the meaning of Section 130(d) of the Code in the form of an annuity contract issued by the Annuity Issuer. All rights of ownership and control of such annuity contract shall be and remain vested in the Assignee exclusively. The Assignee may have the Annuity Issuer send payments under any "qualified funding asset" purchased hereunder directly to the payee(s) specified in Addendum No. 1. Such direction of payments shall be solely for the Assignee's convenience and shall not provide the Claimant or any payee with any rights of ownership or control over the "qualified funding asset" or against the Annuity Issuer. 8. Assignee's liability to make the Periodic Payments shall continue without diminution regardless of any bankruptcy or insolvency of the Assignor. rl In the event the Settlement Agreement is declared terminated by a court of law or in the event that Section 130 (c) of the code has not been satisfied, this Agreement shall terminate. The Assignee shall then assign ownership of any "qualified funding asset" purchased hereunder to Assignor and Assignee's liability for the Periodic Payments shall terminate. Assignor: City of Huntington Beach By: . NArn Qd:��Z 24utim, Auth zed Representative Title Mayor Attest: dmzi � City Clerk OZ— — of Approved as to form: Gail Hutton City Attorney. 10. This Agreement shall be binding upon the respective representatives, heirs, successors and assigns of the Claimant, the Assignor and the Assignee and upon any person or entity that may assert any right hereunder or to any of the Periodic Payments. Assignee: Jamestown Life Insurance Company By: Title: yi Authorized Representative Addendum No.1 Description of Periodic Payments Periodic Pavments payable to: Jeffrey Doherty Education Fund: Commencing at age 19 (03/05/2004); $5,870.00 every year for 3 years Initials Assignor: Assignee: Printed in USA UQA ED. 4-88 RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney. SUBJECT: Settlement of Doherty v. City of Huntington Beach COUNCIL MEETING DATE: 2/5/01 RCA -ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) Signed in full by the City Attorney) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff d L Assistant City Administrator Initial City Administrator Initial pt� City Clerk EXPLANATION•- RETURK OF OF gill �.. 1- RCA Author: