Loading...
HomeMy WebLinkAboutJUAREZ v. City of Huntington Beach Settlement Agreement - 2000-06-19 CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK LETTF OF TRANTSINUTTAL OF ITEM APPROVED BY THE CITY COUNCIL/ REDEVELOYNTENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE: August 2.9, 2000 TO: Moore, Rutter & Evans ATTENTION: Neal Moore, Esq. Name 2120 Main Street, Suite 250 DEPARTN ENT: Street Huntington Beach, CA- 92648 REGARDING: Juarez vs. City of HB City,state,zip Settlement Agreement & Release See Attached Action Agenda Item Date of Approval 6-19-00 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Please send an executed copy of the agreement to the City Clerk's Office, Attn: Jeffrey Connie Brockway Hughes, Deputy City Clerk (above address) , City Clerk Thank you. Attachments: Action Agenda Page Agreement x Bonds Insurance RCA Deed Other CC: Name Department RCA Agreement Insurance Other Name Department RCA Agreement Insurance Other Name Department RCA Agreement Insurance Other Name Department RCA Agreement Insurance Other Risk Management Dept. Insurance 1 Telephone:714-636-5227) ���t�s — ��`r�l� �x�-�.,u► �� C�� SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement" ) is made and entered into this Lqifi_ day of Jtkn e _ _ 2000, by and among , BRYNETTE J. JUAREZ, a minor, by and through her parent and Guardian Ad Litem, LETICIA JUAREZ (the "Plaintiff" ) and CITY OF HUNTINGTON BEACH (the "Defendant") . RECITALS A. On or about the 8"" day of February 1999, the Plaintiff filed a complaint (the "Complaint") against the Defendant in the Superior Court of the State of California, Orange County (Case No. 80 49 61) , which Complaint arose out of certain alleged negligent acts or omissions by the Defendant . In the Complaint, the Plaintiff sought to recover monetary damages on account of physical injury as a result of that certain falling tree limb accident that occurred at or near Central Park, in the City of Huntington Beach, State of California, on the 16tr day of July 199E . 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 are the subject of or might have been the subject of the Complaint, upon the terms and conditions set forth herein. AGREEMENT The parties hereto hereby agree as follows : 1 . Release and Discharge - In consideration of the payments called for herein, the Plaintiff hereby completely releases and forever discharges the Defendant and said Party' s past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and 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, of and 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, and whether for compensatory or punitive damages, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, or which are the subject of the Complaint (and all related pleadings) including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, or any future wrongful death claim of Plaintiff ' s representatives, which have resulted or may result from the alleged acts or omissions of the Defendant . This release, on the part of the Plaintiff, shall be a fully binding and complete settlement between the Plaintiff and the Defendant, their assigns and successors, save only the executory provisions of this Settlement Agreement . 2 . ij ents In consideration of the release set forth above, the Defendant hereby agrees to pay the Periodic Payments outlined in the Schedule of Payments shown as Attachment A and made a part of this Settlement Agreement. All the payments set forth in Attachment A and made a part of this Settlement Agreement constitute damages on account of physical injuries, arising from an occurrence within the meaning of Section 104 (a) (2) of the IRS Code of 1986 as amended. 3 . Qualified- Assignment The parties hereto acknowledge and agree 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 required herein. Any such assignment, if made, shall be accepted by the Plaintiff without right of- rejection and shall completely release and discharge the Defendant from such obligations hereunder as are assigned to GE CAPITAL ASSIGNMENT CORPORATION (the "Assignee" ) . The Plaintiff recognizes that, in the event of such an assignment, the Assignee shall be their sole obligor with respect to the obligations assigned, and that all other releases that pertain to the liability of the Defendant shall -thereupon become final, irrevocable and absolute . If the liability to make the periodic payments is assigned by way of a "qualified assignment: " A) Periodic payments from the Assignee cannot be accelerated, deferred, increased or decreased by the Plaintiff; B) The Assignee does not provide to the Plaintiff rights against the Assignee that are greater than those of a general creditor; and C) The Assignee ' s obligation for payment of the periodic payments is no greater than the obligation of the person originally liable (whether by suit or agreement) for payment and from whom the obligation was assigned. 4 . Plaintiff' s Rights to Payments The Defendant and/or the Assignee shall not segregate or set aside any of their assets to fund the payments to Plaintiff required herein, it being understood Plaintiff is and shall be a general creditor to the Defendant and/or the Assignee . Said payments cannot be accelerated, deferred, increased or decreased by the Plaintiff and no part of the payments called for herein or any assets of the Defendant and/or the Assignee are to be subject to execution of any legal process for any obligation in any manner, nor shall the Plaintiff have the power to sell or mortgage or encumber same, or any part thereof, 2 nor anticipate the same, or any part' thereof, by assignment or otherwise . 5 . Right to Purchase an Annuity The Defendant and/or the Assignee reserve the right to fund. its liability to make periodic payments through the purchase of an annuity policy from GE CAPITAL ASSURANCE COMPANY. The Defendant and/or the Assignee shall be the owner of the annuity policy and shall have all rights of ownership. The Defendant and/or the Assignee may have GE CAPITAL ASSURANCE COMPANY mail payments directly to the Plaintiff. The Plaintiff shall be responsible for maintaining the currency of the proper mailing address and mortality information to GE CAPITAL ASSURANCE COMPANY. 6 . Plaintiff' s Beneficiar Any payments to be made after the death of the Plaintiff pursuant to the terms of this Settlement Agreement and Release shall be made to such person or entity as shall be designated in writing by said Plaintiff to the Defendant, or the Defendant' s Assignee. If no person or entity is so designated by said Plaintiff, such payments shall be made to the Estate of the Plaintiff. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Defendant, or the Defendant' s Assignee. The Designation must be in a form acceptable to the Defendant, or the Defendant ' s Assignee. 7 . Discharge of Obligation The Obligation of the Defendant and/or the Assignee to make each installment payment shall be discharged upon the mailing to the Payee of a valid check in the amount of such payment to the address designated by the party to whom the payment is required to be made under this Settlement Agreement . 8 . 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 the Complaint, this Settlement Agreement and the matters and documents referred to herein, the filing of a Dismissal of the Complaint, and_ afl related matters . 9 . General Release The Plaintiff hereby acknowledges and agrees that the release set forth in Paragraph I hereof is a general release, and they further expressly waive and assume the risk of any and all claims for damages 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 Plaintiff ' s decision to enter into this Settlement Agreement . The Plaintiff further agrees that he has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact, and they assume the risk that the 3 facts or law may be otherwise than they believe. 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. 10 . Minor' s Compromise The undersigned executing this release on behalf of any minor agrees to provide the party herein released with a certified copy of the Court ' s order approving the compromise of the minor' s claims . The undersigned hereby further agrees to forever and fully indemnify, defend and hold harmless the party herein released of and from any and all damage or loss or costs, including attorneys' fees or judgments which may be hereafter sustained by the party herein released, or his insurance carriers, arising out of any claim or demand or suit or action taken by said minor or by any other person on behalf of said minor, or as the heir or assignee of said minor. 11 . Delivery of Dismissal with Prejudice Concurrently with the execution of this Settlement Agreement, counsel for the Plaintiff has delivered to counsel for the Defendant an executed Dismissal. with Prejudice of the Civil action described in Recital A above . The Plaintiff has authorized Plaintiff' s attorneys to execute this Dismissal on their behalf and hereby authorizes counsel for the Defendant to file said Dismissal with the Court and enter it as a matter of record. 12 . Warranty of Capacity to Execute Agreement The Plaintiff represents and warrants that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement; except as otherwise set forth herein and that they have the sole right and exclusive authority to execute this Settlement Agreement and receive the sum specified in it; and that they have 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 . 13 . Good Faith Settlement The parties mutually agree by and through their attorneys and represent that the settlement agreement set forth herein was entered into in good faith and to the satisfaction of the parties . 14 . Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Plaintiff and Defendant with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. 4 15. Representation -by Plaintiff Plaintiff states that she has carefully read this Settlement Agreement in its entirety, has conferred with her attorney, and knows and understands the contents of this agreement. Plaintiff further understands and acknowledges that this agreement has been negotiated by the parties through their respective counsel . Plaintiff represents that he is not relying on the advice of Defendant or anyone associated with the Defendant concerning the legal or tax consequences of this agreement, nor is this agreement contingent upon any favorable tax determination. Accordingly, Plaintiff hereby releases and holds harmless Defendant, their counsel or consultants from any claim of any kind which Plaintiff may assert because of any unforeseen consequences of this Settlement Agreement. 16. Representation of Comprehension of Document In entering into this Settlement Agreement the Plaintiff represents that she has relied upon the legal advice of her attorneys, who are the attorneys of her own choice and that the terms of this Settlement Agreement have been completely read and explained to her by her attorneys, and that those terms are fully understood and voluntarily -accepted by her. 17 . Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. The undersigned Plaintiff does hereby waive any and all rights based upon the provisions of Section 1542 of the Civil Code of the State of California, 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 SETTLE- MENT WITH THE DEBTOR. " For the protection of the undersigned Plaintiff, California law requires the following to appear on this form: ANY PERSON WHO KNOWINGLY PRESENTS FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINE AND CONFINEMENT IN STATE PRISON. 18 . Additional Documents All Parties agree to cooperate fully and 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 . 5 19. Hold Harmless The undersigned Plaintiff will indemnify and hold harmless the parties released herein from any loss incurred in the future by reason of the assertion by any one of them of the claim or claims covering the subject matter of this release. 20 . Counterparts This Settlement Agreement may be signed by any number of counterparts with the same effect as if the signatures to each such counterpart were a part of the same instrument . 21 . Effectiveness This Settlement Agreement shall become effective immediately following execution by all of the parties . C�C� RYNETTE J. JUAREZ, a minor, by and through her parent and .Guardian Ad Litem, LETICIA JUAREZ, Plaintiff Dated: P,Iq loo CITY OF HUNTINGTON BEACH, Defendant By: APPPAVED As TO FORM: Title : ! �'e-� c yf`o0o��y TEST: Dated: O l 23,00 _ city Clerk OIL3— c� 6 ATTACHMENT A SCHEDULE OF PAYMENTS CASH: Payment in the - sum of $39, 419.35 by check or draft, pursuant to the terms approved by Court Order. ANNUAL CERTAIN FOR 04 YEARS: Payments .in the sum of $20, 000.00 per annum to BRYNETTE J. JUAREZ payable on or before the 29th day of March 2011, and thereafter on or before the 29th day of March each year through and including the 29th day of March 2014 . In the event of the death of BRYNETTE J. JUAREZ, on or before the 291h day of March 2014, the payments in the amounts heretofore set forth on the dates herein above mentioned, shall continue to the ESTATE OF BRYNETTE 'J. JUAREZ, said payments to continue through the 29th day of March 2014 . LUMP SUM PAYMENTS: Lump sum payments to BRYNETTE J. JUAREZ in the following sumps on the following dates : $50, 000 . 00 on March 29, 2018 (age 25) $72, 200 . 00 on March 29, 2023 (age 30) In the event of the death of BRYNETTE J. JUAREZ on or before the 29`h day of March 2023, any lump sum payment due and payable as outlined above on the dates above will be paid to the ESTATE OF BRYNETTE J. JUAREZ . 7 Uniform Qualified Assignment °Claimant" BRYNETTE J. JUAREZ "Assignor' CITY OF HUNTINGTON BEACH "Assigned' GE CAPITAL ASSIGNMENT CORPORATION "Annulty Issuer' GE CAPITAL ASSURANCE COMPANY "Effective Date" This Agreement Is made and entered Into by and between 3. The Assignee's liability to make the Periodic the parties hereto as of the Effective Date with reference to Payments Is no greater than that of the Assignor the following facts: immediately preceding this Agreement Assignee Is not required to set aside specific assets to secure the A. Claimant has executed a settlement agreement or release dated,, P r q , �pd Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. (the"Settlement Agreement")that provides for the None of the Periodic Payments may be accelerated, Assignor to make certain periodic payments to or for deferred, increased or decreased and may not be the benefit of the Claimant as stated in Addendum anticipated, sold, assigned or encumbered. No. 1 (the"Periodic Payments");and B. The parties desire to effect a"qualified assignment" a. The obligation assumed by Assignee with respect to within the meaning and subject to the conditions of any required payment shall be discharged upon the Section i30(c) of the[rKemal Revenue Code of 19136 mailing on or before the due date of a valid check In (the" ") the amount specified to the address of record. Code . s. This Agreement shall be governed by and interpreted In accordance with the laws of the NOW,THEREFORE, In consideration of the foregoing and Slate of Calif ornia other good and valuable consideration, the parties agree . S The Assignee may fund the Periodic Payments by as follows: purchasing a"qualified funding asset'within the i. The Assignor hereby assigns and the Assignee meaning of Section 130(d) of the Code In the form of hereby assumes all of the Assignor's liability to make an annuity contract issued by the Annuity Issuer. All the Periodic Payments. The Assignee assumes no rights of ownership and control of such annuity liability to make any payment not specified In contract shall be and remain vested In the Assignee Addendum No. I. exclusively. 2. The Periodic Payments constitute damages on 7. The Assignee may have the Annuity Issuer send account of personal injury or sickness In a case payments under any"qualified funding asset' Involving physical injury or physical sickness within purchased hereunder directly to the payee(s) the meaning of SeCtions IM(a)(2) and 134(c) of the specified In Addendum No. 1. Such direction of Code. 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 asset"purchased hereunder to Assignor,and shall continue without diminution regardless of any Assignee's liability for the Periodic Payments shall bankruptcy or insolvency of the Assignor. terminate. 9. In the event the Settlement Agreement Is declared 10. This Agreement shall be binding upon the respective terminated by a court of law or In the event that representatives, heirs, successors and assigns of the Section 130(c) of the Code has not been satisfied, Claimant,the Assignor and the Assignee and upon this Agreement shall terminate. The Assignee shall any person or entity that may assert any right then assign ownership of any"qualified funding hereunder or to any of the Periodic Payments. CITY OF HUNTINGTON BEACH GE CAPITAL ASSIGNMENT CORP. Assignor. Assignee: By: By. _.. . . Autho ed Repress flue Authonzed Representative Tide /f4411a2 D- 7 Sri ... Tide ATT ,T: city clerk APPROVED 5 TO FORh1: City Xttorney S �/ Printed In USA NssrA National Structured Settlements Trade Association UQA ED.a-W Addendum No-1 Description of Periodic Payments PAYEE : BRYNETTE J. JUAREZ ANNUAL CERTAIN FOR 04 YEARS: Payments in the sum of $20, 000. 00 per annum to BRYNETTE J. JUAREZ payable on or before the 29th day of March 2011, and thereafter on or before the 29th day of March each year through and including the 29th day of March 2014. In the event of the death of BRYNETTE J. JUAREZ; on or before the 29th day of March 2014, the payments in the amounts heretofore set forth on the dates herein above mentioned, shall continue to the ESTATE OF BRYNETTE J. JUAREZ, said payments to continue through the 29th day of March 2014. LUMP SUM PAYMENTS: Lump sum payments to BRYNETTE J. JUAREZ in the following sums on the following dates: $50, 000. 00 on March 29, 2018 (age 25) '$72, 200. 00 on March 29, 2023 (age 30) In the event of the death of BRYNETTE J. JUAREZ on or before the 29th day of March 2023, any lump sum payment due and payable as outlined above on the dates above will be paid to the ESTATE OF BRYNETTE J. JUAREZ. Initials Assignor. Assignee: Printed in USA UQA ED.4438 LAW OFFICES OF W. DOUGLAS EASTON W. 00UGLAS EASTON 3200 PART( CENTER ORIVE AREA COOL 744 ANDERSON L- WASNBURN TELEPHONE 850-4S00 SUITE 1000 FACSIMILE 427-0I80 RUSSEL W. JONES BRIAN slv- EASTON COSTA MESA, CALIFORNIA ID2626 EMAIL Iowdslaw�rnpll.mrn-w*+ -1 August 4, 2000 c� y c Neal Moore, Esq. �w - MOORE, RUTTER & EVANS :- 2120 Main Street, Suite 250 Huntington Beach, CA 92548 Re: JuaKgg vs . City of Huntington each Dear Neal : As a result of Mrs . Juarez losing the previously endorsed Settlement Agreement and Release as well as the Uniform Qualified Assignment, enclosed is another copy already signed by Mrs . Juarez, for the appropriate city representatives , signatures . Please have the documents executed as indicated and return the documents to me so that I can submit them to GE Capital for issuance of the annuity policy. If you have any questions, please call . Thank -you for your cooperation. Very truly yours, XSL ICES OF W. DOUGLAS EASTON W. JONES RWJ\kw Enclosures IS CITY OF HUNTINGTON BEAAH MEETING DATE: June 19, 2000 DEPARTMENT ID NUMBER: CA 00-10 Council/Agency Meeting Held: Deferred/Continued to: Ap roved ❑ Conditionally Approved ❑ DeniqA p_- - City CI s Signature Mr Council Meeting Date: June 19, 2000 Department ID Number: CA 00-10 ti L� CITY OF HUNTINGTON BEACH �= REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS ' ` .2 SUBMITTED BY: RAY SILVER, City AdministratorRW c~� PREPARED BY: GAIL HUTTON, City Attorney SUBJECT: Approve the Settlement Agreement regarding Juarez v. City of Huntington Beach Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Execution of the Settlement Agreement in Juarez v. City. Funding Source: Risk Management budget, Defense Account G-IC-AS-870-4-0500 Recommended Action: That the City Council authorize the Mayor and the City Clerk to sign the settlement agreement at the total cost of $125,000. Alternative Action(s): Direct the City Attorney to re-negotiate the settlement. Analysis: As a result of being struck by the falling tree, plaintiff Brynette Juarez (a minor) sustained facial and skull fractures, a lacerated liver, and a fracture of her left femur. She was hospitalized for five days during which her injuries were evaluated and she was discharged in stable condition with her leg casted. After discharge, plaintiff was confined to a wheelchair for about three months, and then a walker for about another month. Medical expenses incurred were approximately $41 ,000. Brynette made an excellent recovery from her injuries. She appears to be an active, healthy seven year old child. Brynette's mother, Leticia Juarez, also sought recovery for the emotional distress she experienced in witnessing her daughter's accident. Such recovery is permitted by law. 00-10 Juarez v. City -2- 6/14/00 11:34 AM ��► %QUEST FOR COUNCIL ACION MEETING DATE: June 19, 2000 DEPARTMENT ID NUMBER: CA 00-10 Suit was filed in this matter on January 29, 1999. Mandatory settlement conferences were conducted in January and February 2000. Based upon authority authorized by the City Council at its February 7, 2000 meeting, a settlement agreement was negotiated at a total cost to the City of $125,000. Pursuant to a release, Ms. Juarez's claim was settled in the amount of $23,000. This amount has already been paid and although the release from Ms. Juarez did not require a City signature, the settlement agreement with Brynette Juarez does, in part because it involves an annuity. This settlement includes an immediate payment of $39,419.35, plus a purchase of an annuity at the cost of $62,580.65. The annuity will yield the following payments to Brynette: March 29, 2011 $20,000.00 March 29, 2012 $20,000.00 March 29, 2013 $20,000.00 March 29, 2014 $20,000.00 March 29, 2018 $50,000.00 March 29, 2023 $75,700.00 It is requested that the City Council approve the Agreement and authorize the Mayor and City Clerk to sign it. Environmental Status: NIA Attachment[sl: City Clerk's Page Number No. Description 1 Settlement Agreement RCA Author: Scott Field 00-10 Juarez v. city -3- 6/14/00 11:34 AM ATTACHMENT 1 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ( "Settlement Agreement" ) is made and entered into this 19th day of June 2000, by and among , BRYNETTE J. JUAREZ, a minor, by and through her parent and Guardian Ad Litem, LETICIA JUAREZ (the "Plaintiff") and CITY OF HUNTINGTON BEACH (the "Defendant" ) . RECITALS A. On or about the 8tr. day of February 1999, the Plaintiff filed a complaint (the "Complaint" ) against the Defendant in the Superior Court of the State of California, Orange County (Case No. 80 49 61) , which Complaint arose out of certain alleged negligent acts or omissions by the Defendant . In the Complaint, the Plaintiff sought to recover monetary damages on account of physical injury as a result of that certain falling tree limb accident that occurred at or near Central Park, in the City of Huntington Beach, State of California, on the 16:" day of July 1998 . 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 are the subject of or might have been the subject of the Complaint, upon the terms and conditions set forth herein. AGREEMENT The parties hereto hereby agree as follows ; 1 . Release and Discharge In consideration of the payments called for herein, the Plaintiff hereby completely releases and forever discharges the Defendant and said Party'`s past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and 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, of and 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, and whether for compensatory or punitive damages, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, or which are the subject of the Complaint (and all related pleadings) including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, or any future wrongful death claim of Plaintiff' s representatives, which have resulted or may result from the alleged acts or omissions of the Defendant . This release, on the part of the Plaintiff, shall be a fully binding and complete settlement between the Plaintiff and the Defendant, their assigns and successors, save only the executory provisions of this Settlemen Agreement . 2 . Payments In consideration of the release set forth above, the Defendant hereby agrees to pay the Periodic Paymen-s outlined in the Schedule of Payments shown as Attachment A and made a part of this Settlement Agreement. All the payments set forth in Attachment A and made a part of this Settlement Agreement constitute damages on account of physical injuries, arising from an occurrence within the meaning of Section 104 (a) (2) of the IRS Code of 1986 as amended. 3 . Qualified Assignment The parties hereto acknowledge and agree -hat the Defendant may make a "qualified assignment" within the meaning of Section 130 (c) of the Internal Revenue Code of 19B6, as amended, of the Defendant ' s liability to make the periodic payments required herein. Any such assignment, if made, shall be accepted by the Plaintiff without right of rejection and shall completely release and discharge the Defendant from such obligations hereunder as are assigned to GE CAPITAL ASSIGNMENT CORPORATION (the "Assignee" ) . The Plaintiff recognizes that, in the event of such an assignment, the Assignee shall be their sole obligor with respect to the obligations assigned, and that all other releases that pertain to the liability of the Defendant shall thereupon become final, irrevocable and absolute . If the liability to make the periodic payments is assigned by way of a "qualified assignment : " A) Periodic payments from the Assignee cannot be accelerated, deferred, increased or decreased by the Plaintiff; B) The Assignee does not provide to the Plaintiff rights against the Assignee that are greater than those of a general creditor; and C) The Assignee ' s obligation for payment of the periodic payments is no greater than the obligation of the person originally liable (whether by suit or agreement) for payment and from whom the obligation was assigned. 4 . Plaintiff' s Rights to Payments The Defendant and/or the Assignee shall not segregate or set aside any of their assets to fund the payments to Plaintiff required herein, it being understood Plaintiff is and shall be a general creditor to the Defendant and/or the Assignee . Said payments cannot be accelerated, deferred, increased or decreased by the Plaintiff and no part of the payments called for herein or any assets of the Defendant and/or the Assignee are to be subject to execution of any legal process for any obligation in any manner, nor shall the Plaintiff have the power to sell or mortgage or encumber same, or any part thereof, 2 nor anticipate the same, or any part thereof, by assignment or otherwise. 5 . Right to Purchase an Annuity The Defendant and/or the Assignee reserve the right to fund its liability to make periodic payments through the purchase of an annuity policy from GE CAPITAL ASSURANCE COMPANY. The Defendant and/or the Assignee shall be the owner of the annuity policy and shall have all rights of ownership. The Defendant and/or the Assignee may have GE CAPITAL ASSURANCE COMPANY mail payments directly to the Plaintiff. The Plaintiff shall be responsible for maintaining the currency of the proper mailing address and mortality information to GE CAPITAL ASSURANCE COMPANY. 6. Plaintiff' s Beneficiar Any payments to be made after the death of the Plaintiff pursuant to the terms of this Settlement Agreement and Release stall be made to such person or entity as shall be designated in writing by said Plaintiff to the Defendant, or the Defendant ' s Assignee. If no person or entity is so designated by said Plaintiff, such payments shall be made to the Estate of the Plaintiff. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Defendant, or the Defendant' s Assignee . The Designation must be in a form acceptable to the Defendant, or the Defendant ' s Assignee . 7 . Discharge of Obligation The Obligation of the Defendant and/or the Assignee to make each installment payment shall be discharged upon the mailing to the Payee of a valid check in the amount of such payment to the address designated by the party to whom the payment is required to be made under this Settlement Agreement . 8 . 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 the Complaint, this Settlement Agreement and the matters and documents referred to herein, the filing of a Dismissal of the Complaint, and all related matters . 9 . General Release The Plaintiff hereby acknowledges and agrees that the release set forth in Paragraph I hereof is a general release, and they further expressly waive and assume the risk of any and all claims for damages 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 Plaintiff' s decision to enter into this Settlement Agreement . The Plaintiff further agrees that he has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact, and they assume the risk that the 3 facts or law may be otherwise than they believe. 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. 10 . Minor' s Compromise The undersigned executing this release on behalf of any minor agrees to provide the party herein released with a certified copy of the Court ' s order approving the compromise of the minor' s claims . The undersigned hereby further agrees to forever and fully indemnify, defend and hold harmless the party herein released of and from any and all damage or loss or costs, including attorneys ' fees or judgments which may be hereafter sustained by the party herein released, or his insurance carriers, arising out of any claim or demand or suit or action taken by said minor or by any other person on behalf of said minor, or as the heir or assignee of said minor. 11 . Delivery of Dismissal with Prejudice Concurrently with the execution of this Settlement Agreement, counsel for the Plaintiff has delivered to counsel for the Defendant an executed Dismissal with Prejudice of the Civil action described in Recital A above. The Plaintiff has authorized Plaintiff' s attorneys to execute this Dismissal on their behalf and hereby authorizes counsel for the Defendant to file said Dismissal with the Court and enter it as a matter of record. 12 . Warranty of Capacity to Execute Agreement The Plaintiff represents and warrants that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement; except as otherwise set forth herein and that they have the sole right and exclusive authority to execute this Settlement Agreement and receive the sum specified in it; and that they have 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 . 13 . Good Faith Settlement The parties mutually agree by and through their attorneys and represent that the settlement agreement set forth herein was entered into in good faith and to the satisfaction of the parties . 14 . Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between. the Plaintiff and Defendant with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. 4 15 . Representation by Plaintiff Plaintiff states that she has carefully read this Settlement Agreement in its entirety, has conferred with her attorney, and knows and understands the contents of this agreement . Plaintiff further understands and acknowledges that this agreement has been negotiated by the parties through their respective counsel . Plaintiff represen-.s that he is not relying on the advice of Defendant or anyone associated with the Defendant concerning the legal or tax consequences of this agreement, nor is this agreement contingent upon any favorable tax determination. Accordingly, Plaintiff hereby releases and holds harmless Defendant, their counsel or consultants from any cla:Lm of any kind which Plaintiff may assert because of any unforeseen consequences of this Settlement Agreement . 16. Representation of Comprehension of Document In entering into this Settlement Agreement the Plaintiff represents that she has relied upon the legal advice of her attorneys, who are the attorneys of her own choice and that the terms of this Settlement Agreement have been completely read and explained to her by her attorneys, and that those terms are fully understood and voluntarily accepted by her. 17 . Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California . The undersigned Plaintiff does hereby waive any and all rights based upon the provisions of Section 1542 of the Civil Code of the State of California, 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 SETTLE- MENT WITH THE DEBTOR. " For the protection of the undersigned Plaintiff, California law requires the following to appear on this form: ANY PERSON WHO K\OWINGLY PRESENTS FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINE AND CONFINEMENT IN STATE PRISON. 18 . Additional Documents All Parties agree to cooperate fully and 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. . 5 • • 19. Hold Harmless The undersigned Plaintiff will indemnify and hold harmless the parties released herein from any loss incurred in the future by reason of the assertion by any one of them of the claim or claims covering the subject matter of this release . 20 . Counterparts This Settlement Agreement may be signed by any number of counterparts with the same effect as if the signatures to each such counterpart were a part of the same instrument. 21 . Effectiveness This Settlement Agreement shall become effective immediately following execution by all of the parties . BRYNETTE J. JUAREZ, a minor, by and- through her parent and Guardian Ad Litem, LETICIA JUAREZ, Plaintiff Dated: CITY OF HUNTINGTON BEACH, Defendant 4 By APPROVED AS TO FORML : City Attorney .Title:_ mayor Pro Tem ATTEST: Dated: 06~20-00 Z!ity Clerk 6 ATTACHMENT A SCHEDULE OF PAYMENTS CASH: Payment in the sum of $39, 419.35 by check or draft, pursuant to the terms approved by Court Order. ANNUAL CERTAIN FOR 04 YEARS: Payments in the sun of $20, 000. dO per annum to BRYNETTE J. JUAREZ payable on or before the 29th day of March 2011, and thereafter on or before the 29t" day of March each year through and including the 29-h day of March 2014 . In the evert of the -death of BRYNETTE J. JUAREZ, on or before the 29'h day of March 2014, the payments in the amounts heretofore set forth on the dates herein above mentioned, shall continue to the ESTATE OF BRYNETTE J. JUAREZ, said payments to continue through the 29th day of March 2014 . LUMP SUM PAYMENTS: Lump sum payments to BRYNETTE J. JUAREZ in the following sums on the following dates : $50, 000. 00 on March 29, 2018 (age 25) $75, 700 . 00 on March 29, 2023 (age_ 30) In the event of the death of BRYNETTE J. JUAREZ on or before the 29�1' day of March 2023, any lump sum payment due and payable as outlined above on the dates above will be paid to the ESTATE OF BRYNETTE J. JUAREZ . 7 F '4. CITY OF HUNTINGTON BEACH Inter-Department Communication TO: Connie Brockway, City Clerk FROM: Scott Field, Assistant City Attorney DATE: June 20, 2000 SUBJECT: Juarez v City of Huntington Beach As you anticipated, we need the signatures of the Mayor and yourself on the Uniform Qualified Assignment. This document is part of the settlement. We have approved it as to form and request a certified copy as quickly as possible. SF-2000 Memos:Clerk re Juarez 6-20 Uniform .Qualified Assignment "Claimant" BRYNETTE J. JUAREZ "Assignor" CITY OF HUNTINGTON BEACH GE CAPITAL ASSIGNMENT CORPORATION "Assignee' "Annuity Issuer" GE CAPITAL ASSURANCE COMPANY "Effective Date" ' This Agreement Is made and entered Into by and between 3. The Assignee's liability to make the Periodic the partles hereto as of the Effective Date with reference to Payments Is no greater than that of the Assignor the following facts: immediately preceding this Agreement. Assignee is A. Claimant has executed a settlement agreement or not required to set aside specific assets to secure the June 19 e agreement o fl Periodic Payments.=The:Clalmant has no rights release dated against the Assignee;greater than is general creditor. (the"Settlement Agreement")that provides for the None of the Periodic Payments may be accelerated, Assignor to make certain periodic payments to or for deferred, increased or decreased and may not be the benefit of the.Galmant as stated In Addendum anticipated, sold, assigned or encumbered. No. 1 (the"Periodic Payments");and B. The parties desire to effect a"qualified assignment" 4. The obligation assumed by Assignee with respect to within the meaning and subject to the conditions of any required payment shall be discharged.upon themailing on or before the due date of a valid check In Section 130(c) of the Internal Revenue Code of 1986 the amount specified to the address of record. (the"Code"). 5. This Agreement shalt be governed by and Interpreted In accordance with the laws of the NOW,THEREFORE,in consideration of the foregoing and State of Calif orni a other good and valuable consideration,the parties agree 6, The Assignee may fund the Periodic Payments by as follows: purchasing a"qualified funding asset"within the 1. The Assignor hereby assigns and the Assignee meaning of Section 130(d) of the Code in the form of hereby assumes all of the Assignor's liability to make an annuity contract issued by the Annuity Issuer. All the Periodic Payments. The Assignee assumes no rights of ownership and control of such annuity liability to make any payment not specified in contract shall be and remain vested In the Assignee Addendum No. 1. exclusively. 2. The Periodic Payments constitute damages on 7. The Assignee may have the Annuity Issuer send account of personal injury or sickness In a case payments under any"qualified funding asset" Involving physical injury or physical sickness within purchased hereunder directly to the payee(s) the meaning of Sections f04(a)(2)and 130(c) of the specified In Addendum No. 1. Such direction of Code. payments shall be solely for the Assignee's convenlence 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. INNOM 8. Assignee's liability to make the Periodic Payments asset,purchased hereunder to Assignor,and shall continue without diminution regardless of any Assignee's liability for the Periodic Payments shall bankruptcy or Insolvency of the Assignor, terminate. 9. In the event the Settlement Agreement Is declared 10. This Agreement shall be binding upon the respective terminated by a court of law or in the event that representatives, heirs, successors and assigns of the Section 130(c) of the Code has not been satisfied, Claimant,the Assignor and the Assignee and upon this Agreement shall terminate. The Assignee shall any person or entity that may assert any right then assign ownership of any"qualified funding hereunder or to any of the Periodic Payments. CITY OF HUNTINGTON BEACH GE CAPITAL ASSIGNMENT CORP. Assignor: Assignee: By: 'By: Authorized Representative Title a o,, P o Tem Title ATTEST: dmw,� City C er APPROVED AS TO FORI41: . City Attorney mimed In USA NSSIa National Structured Settlements Trade Association voA ED.a-W N. . Addendum No. 1 Description of Periodic Payments PAYEE : BRYNETTE J. JUAREZ ANNUAL CERTAIN FOR 04 YEARS: Payments in the sum of $20, 000.00 per annum to BRYNETTE J. JUAREZ payable on or before the 29th .day of March .2011, -and thereafter on or before the 291h day ',of March each year through - and_. including the- 29th day of March 2014 . In the event of the death of BRYNETTE J. JUAREZ, on or before the 29th day of March 2014, the payments in the amounts heretofore set forth on the dates herein above mentioned, shall continue to the ESTATE OF BRYNETTE J. JUAREZ, said payments to continue through the 29th day of March 2014 . LUMP SUM PAYMENTS: Lump sum •payments to BRYNETTE J. JUAREZ in the following sums on the following dates : $50, 000.00 on March 29, 2018 (age 25) $72, 200.00 on March 29, 2023 (age 30) In the event of the death of BRYNETTE J. JUAREZ on or before the 29th day of March 2023, any lump sum payment due and payable as outlined above on the dates above will be paid to the ESTATE OF BRYNETTE J. JUAREZ . The foregoing instrument is a correct copy of the original on file in this office. Initials Aftest AANV 2.1 2c�0 CONNIE BROCKWAY Assignor. City Clerk anti Ex-otfici0 Clerk of the City Council of the of ntington Beach. Califor Assignee: BY Deputy Printed in USA - UQA ED.4-88