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HomeMy WebLinkAboutC-9599-1 - Settlement Agreement and Release of All Property Damage ClaimsSETTLEMENT AGREEMENT AND RELEASE OF ALL PROPERTY DAMAGE CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") is entered into by and between Plaintiffs Valerie Niedringhaus and Swarnendra Verma (together, "Plaintiffs"), and Defendant CITY OF NEWPORT BEACH ("Defendant"). Plaintiffs and the City are collectively referred to as the "Parties" or singularly as a "Party." RECITALS WHEREAS, on or about April 4, 2023, Plaintiffs filed a Complaint against the City entitled Niedringhaus, et al. v. City of Newport Beach, et al., Orange County Superior Court Case Number 30-2023-01317487-CU-PA-WJC ("Action"), alleging that the roots of a City - owned tree over -extended into Plaintiffs' Property on or about April 1, 2022, resulting in property damage to their residence, loss of use of property, diminution of value, and other damages ("the Incident"). WHEREAS, on or about May 30, 2023, Plaintiffs filed a First Amended Complaint in the Action alleging substantially the same facts and damages alleged in the Complaint. On or about September 26, 2023, Plaintiffs filed a Second Amended Complaint in the Action alleging substantially the same facts and damages alleged in the Complaint. WHEREAS, the Parties hereto wish to settle and resolve the Action between each other in its entirety, to avoid the uncertainty and costs of trial, and any potential appeals therefrom, and to resolve fully and finally all disputes which may exist by and between the Parties concerning the Incident of April 1, 2022. NOW, THEREFORE, based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, the Parties agree as follows: AGREEMENT In consideration of the facts, acknowledgements, agreements, general release, and promises contained in this Agreement, and for other good and valuable consideration, the receipt of which is acknowledged by each Party hereto, the Parties promise and agree as follows: 1. Recitals. All recitals are true and correct and are incorporated by reference as though fully set forth fully herein. 2. Settlement Payment. Following execution of this Agreement by the Plaintiffs and their counsel, the City of Newport Beach shall pay to Plaintiffs the total sum of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500.00) (the "Settlement Sum"). The Settlement Sum constitutes a full and complete settlement of any and all disputed claims the Plaintiffs have or may have as to the City of Newport Beach, arising out of or related to the allegations set forth in the Second Amended Complaint. Payment shall be made in the form of a check payable to "VALERIE NIEDRINGHAUS, SWARNENDRA VERMA, AND MILLER MILLER GERBER, LLP" and delivered to Plaintiffs' counsel. Upon execution of this 01088.0070/976789.2 Agreement by the Parties, the Plaintiffs shall file with the Court a Notice of Settlement of Entire Action. 3. Dismissal of the Action with Prejudice. Concurrently with the execution and delivery of this Agreement, Plaintiffs shall cause their attorney of record in the Action to execute and deliver to the attorneys of record for the Defendant, the original of a Request for Dismissal, with prejudice, with respect to the entire Action as to the Defendant. Upon Plaintiffs' receipt of the Settlement Sum, the attorneys for the Defendant are authorized to proceed forthwith to cause such "Request for Dismissal" to be filed with the clerk of the court in and for the Orange County Superior Court, and may do all other things necessary in order to cause the Action, including all claims and causes of action asserted therein, to be dismissed with prejudice and in their entirety as to the Defendant. Plaintiffs further agree, after the payment of the above Settlement Sum, to take all necessary and further steps to ensure that the Action is dismissed with prejudice as to the Defendant. 4. General Release ("Release"). For good and valuable consideration, including, but not limited to, the payment of the Settlement Sum, the receipt and adequacy of which are hereby acknowledged, Plaintiffs do hereby fully and irrevocably release and forever discharge the Defendant, current and former employees, officials, agents, or representatives, or any of the them ("Releasees"), of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, costs or expenses, of any nature whatsoever, known or unknown, fixed or contingent ("Claims") related to the Incident, which Plaintiffs now have or may hereafter have by reason of any matter, cause, or thing whatsoever occurring prior to the date of execution of this Agreement including, without limiting the generality of the foregoing, any Claims constituting, arising out of, based upon, or relating to the allegations set forth in the Complaint, as well as any matters, causes, or things whatsoever related to the Incident that were, or have been, or could in any way have been alleged in the pleadings filed in the Action. 5. Effective Date. The release as set forth above shall be effective as of the last date of the execution of this Agreement by the Parties and shall extend to all present and/or potential claims, causes of action, costs or demands related to the Incident which may exist against the Defendant and/or the Releasees up to and including the effective date of this Agreement, regardless of whether such claims, causes of action, costs or demands, are stated, alleged or even suspected by Plaintiffs hereto prior to such effective date. 6. Discovery of Different or Additional Facts. Plaintiffs acknowledges that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 4 of this Agreement, and expressly agree to assume the risk of the possible discovery of additional or different facts, and the Parties agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 7. Release of Unknown Claims. The Release set forth above in Paragraph 4 of this Agreement is a release of ALL claims, demands, causes of action, obligations, damages, and liabilities related to the Incident of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims that the O1088.0070/976789.2 Plaintiffs may have as a result of the Action, except for any claims that may arise from the terms of this Agreement. 8. Waiver of Civil Code Section 1542. Further, the Plaintiffs acknowledge that they have been informed of the provisions of the California Civil Code section 1542, and expressly agree to waive and relinquish all rights and benefits they may have under California Civil Code section 1542. That section reads as follows: A general release does not extend to claims that the creditor or releasing party does not known or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. 9. No Other Pending Actions. The Plaintiffs represent that they, acting together or separately, have not filed any complaint(s) and/or charge(s) (other than the Complaint referenced above) against the Defendant and/or Releasees, arising out of or relating to the allegations set forth in the Complaint, with any local, state, or federal agency or court; and that if such agency or court assumes jurisdiction of any complaint or charge against the Defendant and/or the Releasees, whenever filed, the Plaintiffs will take all necessary and further steps to withdraw and dismiss the matter forthwith. 10. Non -Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by the Defendant and/or the Releasees, including the Defendant's attorneys, all of whom have consistently taken the position that they have no liability whatsoever. 11. No Assignment of Claims. The Plaintiffs warrant that they, acting together or separately, have made no assignment, and will make no assignment, of any claim, cause of action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorney's fees, costs, expenses, losses or claims referred to herein. 12. Attorney's Fees. Each Party hereto agrees to bear his/her/their/its own attorney's fees and costs in connection with the resolution of the Action and this Agreement. 13. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 14. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. 01088.0070i976789? 15. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 16. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute on agreement. 17. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. l8. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel. This Agreement shall be construed according to its fair meaning as prepared by both parties, and any uncertainty or ambiguity existing herein shall not be interpreted against either of the Parties. 19. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. 20. Retention of Jurisdiction. Pursuant to Code of Civil Procedure section 664.6, the Parties stipulate and agree that the Orange County Superior Court shall retain jurisdiction over the Parties and the Action, as to any action to enforce, invalidate, or interpret any provision of this Agreement. 21. Governing Law and Venue. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. Any action to enforce, invalidate, or interpret any provision of this agreement shall be brought in the Orange County Superior Court. 22. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty. No representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. IN WITNESS WHEREOF, the undersigned execute this Settlement Agreement and Release of All Claims, consisting of a total of six (6) pages, on the dates set forth below. 01088.0070/976789.2 [SIGNATURE PAGE FOLLOWS] 01098.0070/9767892 April , 2024 April , 2024 Apn , 2024 APPROVED AS TO FORM: April , 2024 llqay 7 .A , 2024 } F� -Im VALERIE NIEDRINGHAUS Signed in Counterpart SWARNENDRA VERMA Signed in Counterpart CITY OF NEWPORT BEACH Barbara J. Salvini Human Resources Director MILLER MILLER GERBER, LLP Signed in Counterpart Jonathan L. Gerber Attorney for Plaintiffs, Valerie Niedringhaus and Swarnendra Verma CITY ATTORNEY'S OFFICE By: �.�Aaron C. Harp City Attorney Attest: Leilani 1. Brown, MMC, City Clerk 01088.0070/976789.2 i;v-'-/FOR© Date: 15-11` April c- A J , 2024 VALERIE N D US Apri1�_, 2024 SWARNENDRA VERMA April , 2024 CITY OF NEWPORT BEACH Barbara 1. Salvin! Human Resources Director APPROVED AS TO FORM: a� 1 , 2024 MILLER MILLER GERBER, LLP By: Jonafh�n`l�.—Gerber Attorney for Plaintiffs, Valerie Niedringhaus and Swamendra Verma ApnI , 2024 CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney 01088.0070i976789.2