CONTRACT 4602 Settlement AgreementAgreement No. 4602
SETTLEMENT AND RELEASE AGREEMENT
(Springfield v. City of El Segundo et al, LASC Case No YC067789)
This Settlement and Release Agreement ( "the Agreement ") is entered into by and
between the following parties hereto (collectively, "the Parties "):
(a) Kimberly Lynn Springfield ( "Plaintiff' or "The Undersigned "), and her heirs,
executors, administrators, successors, and assignees;
(b) City of El Segundo ( "City "), and its partners, officers, directors, employees,
shareholders, subsidiaries, related affiliates or entities or predecessors or
successors, assigns, representatives, accountants, agents, insurers,
adjusters and attorneys;
(c) 1700 East Walnut Associates, LLC ( "1700 East Walnut "), and its partners,
officers, directors, employees, shareholders, subsidiaries, related affiliates
or entities or predecessors or successors, assigns, representatives,
accountants, agents, insurers, adjusters and attorneys, and Alliance
Commercial Partners and AVF Management, LLC, and their partners,
officers, directors, employees, shareholders, subsidiaries, related affiliates
or entities or predecessors or successors, assigns, representatives,
accountants, agents, insurers, adjusters and attorneys
(d) City of El Segundo and 1700 East Walnut Associates, LLC shall be referred to
collectively as "Defendants" or "Releasees."
RECITALS
A. WHEREAS, Plaintiff alleges that on or about September 22, 2010 at or
about 1700 East Walnut Avenue in El Segundo, California, plaintiff tripped and fell over
a raised portion of a sidewalk; and
B_ WI -IERE Q nl Fi- nraamfv A;u"ntP tbP validity of Plaintiff c claims- and
C. WHEREAS, on or about September 11, 2012, Plaintiff filed the operative
Complaint ( "Complaint ") against Defendants, in the Superior Court of California, County
of Los Angeles, entitled "Kimberly Lynn Springfield v. City of El Segundo et al ", Case
No. YC0667789 ( "the Action "), asserting causes of action for (1) Negligence, and (2)
Premises Liability and seeking damages for such alleged injuries, including physical
injuries, emotional injuries and loss of earnings; and
D. WHEREAS, on or about October 30, 2012 the City filed an Answer
denying any and all liability for the claims raised by Plaintiff in the Complaint in the
present Action; on or about March 12, 2013, 1700 East Walnut filed its Answer denying
any and all liability for the claims raised by Plaintiff in the Complaint in the present
Action, and its Cross - Complaint against the City; and on or about April 12, 2013, the
City filed its Cross - Complaint against 1700 East Walnut.
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E. WHEREAS, the parties by this Agreement now wish to resolve and settle
the Action, all disputes encompassed within and that could have been raised in the
Action, and all attendant and potential litigation arising therefrom.
NOW THEREFORE, IN CONSIDERATION OF THE PROVISIONS
HEREINBEFORE AND HEREINAFTER SET OUT, THE PARTIES AGREE AS
FOLLOWS:
TERIbIS AND CONDITIONS
Recitals Incorporation.
The Recitals as set forth above are incorporated herein by this reference
and are made a part hereof as though set forth in fail.
2. Consideration.
2.1 Payment.
1700 East Walnut shall pay to Plaintiff the sum of FIFTY THOUSAND
DOLLARS AND ZERO CENTS ($50,000.00) by check made payable to "Kimberly
Lynn Springfield and Berman More Gonzalez," Taxpayer Identification No. 33- 0166639,
and shall pay Plaintiff's mediation costs with Janet Fields on April 30, 2014.
City shall pay to Plaintiff the sum of $ EIGHTY SEVEN THOUSAND AND
FIVE HUNDRED DOLLARS AND ZERO CENTS ($$7,500.00) by check made payable
to "Kimberly Lynn Springfield and Berman More Gonzalez," Taxpayer Identification
No. 33- 0166639. (jointly the "Payments ")
The Payments set forth above must be made by Defendants within thirty (30) days
after Plaintiff provides Defendants with a signed copy of the final version of this
Agreement, a legible, properly- executed W -9 Form as to the recipient of said Payment,
and a signed Request for Dismissal as set forth below.
2.2 Dismissal.
Simultaneous with the execution of this Agreement, Plaintiff will provide
Defendants with a Request for Dismissal, with prejudice, of the Complaint and all causes
of action therein as to Defendant ( "Dismissal'). Plaintiff will make no further attempt to
recover any judgment, arbitrator's award, or monetary penalty or award from Defendants
with respect to matters related to or contained in the Complaint in this Action.
Simultaneous with the execution of this Agreement, Defendants will provide all
parties with a Request for Dismissal with prejudice of their respective Cross - Complaints
and all causes of action therein as to Cross - Defendants. Defendants will make no further
attempt to recover any judgment, arbitrator's award, or monetary penalty from other
Defendants with respect to the matters contained in the respective Cross - Complaints in
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!j U' 2
this Action. Defendants agree to bear their own costs and fees in their prosecution of
their respective Cross - Complaints as to the Defendants.
2.3 No Admission of Liability.
It is understood and agreed that this settlement is the compromise of a disputed
and doubtful claim, and that the payment made is not to be construed as an admission of
liability on the part of any of the Releasees and that these Releasees deny liability
therefore and intend merely to avoid litigation and to buy their peace.
2.4 Liens.
Plaintiff hereby agrees that Plaintiff will be fully responsible for the satisfaction
of any and all liens asserted as a result of the Incident and this Action, including any and
all workers compensation carrier's claims or liens, and any and all liens claimed by
Plaintiff's medical providers including but not limited to Bright Dental Care, Newport
Emergency Physicians Medical Group, Dr. Sabine Bernbeck, Dr. Patricia Tsai, Griffin
Medical Group, Orthopedic Surgery Group, United Medical Imagining, Elite
Diagnostics, Total Cosmetix & Laser Body Contouring, West Star Physical Therapy,
Pacific Orthopedic Specialists, Huntington Beach Hospital, Dr. Janice Young,
Orthopedic Specialty Institute Medical Group of Orange County, Main Street Specialty
Surgical Center, Activbody Physical Therapy, Simon Medical, Dr. Larenee Richman,
Hoag Memorial Hospital, and Electronic Waveform Lab, Inc. If Defendants, and any of
their partners, officers, directors, employees, shareholders, subsidiaries, related affiliates
or entities or predecessors or successors, assigns, representatives, accountants, agents,
insurers, adjustors and attorneys, are sued by any lien holders or insurance companies for
any claim related to this lawsuit, Plaintiff hereby agrees and promises to fully defend and
indemnify Defendants and/or any of their officers, directors, employees, shareholders,
subsidiaries, related affiliates or entities or predecessors or successors, assigns,
representatives, heirs, accountants, agents, insurers, adjusters and attorneys, and any of
them, and to hold them harmless from any claims, lawsuits, causes of action, and
expenses, including court costs and attorneys' fees on behalf of Defendants against whom
said claim is made. Further, if any person or entity makes a claim under an alleged
assignment or transfer, Plaintiff hereby agrees and promises to fully defend and
indemnify Defendants, including their officers, directors, employees, shareholders,
subsidiaries, related affiliates or entities or predecessors or successors, assigns,
representatives, accountants, agents, insurers, adjusters and attorneys, and any of them,
and to hold them harmless from any claims, lawsuits, causes of action, and expenses,
including court costs and attorneys' fees on behalf of Defendants against whom said
claim is made.
3. Medicare.
3.1 The Plaintiff hereby represents and warrants that none of the medical
treatment that she has received for the injuries related to the Incident was paid for
by Medicare and /or Medicaid.
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Y � �
3.2 In reaching this Agreement, the Parties have paid considerable attention to
Plaintiffs entitlement to Social Security disability benefits pursuant to 42 U.S. C.
Section 423, and receipt of Medicare or Medicaid benefits under 42 US. C.
Section 1395y, as well as the entitlement of the Centers for Medicare and
Medicaid Services to subrogation and intervention, pursuant to 42 U.S. C. Section
1395y (b) (2), to recover any overpayment made by Medicare.
3.3 It is not the purpose of this settlement agreement to shift to Medicare or
Medicaid the responsibility for payment of medical expenses for the treatment of
injury related conditions. Instead, this settlement agreement is expressly intended
to provide Plaintiff with a lump sum which will foreclose the responsibility of
Defendant for future payments of all injury related medical expenses.
3.4 Plaintiff hereby acknowledges that any decision regarding entitlement to
Social Security Medicare or Medicare/Medicaid benefits including the amount
and duration of payments and offset reimbursement for prior payments is
exclusively within the jurisdiction of the Social Security Administration, the
United States Government, and the United States Federal courts and is determined
by Federal Law and Regulations. As such, the United States Government is not
bound by any of the terms of this Settlement Agreement.
3.5 Plaintiff (including heirs, executors and trustees) further agrees to
indemnify, defend and hold the Defendants harmless from any cause of action,
including, but not limited to, an action to recover or recoup Medicare benefits or
loss of Medicare benefits, if Centers for Medicare and Medicaid Services
determines that the money set aside was spent inappropriately or for any recovery
sought by Medicare, including past, present, and future conditional payments.
3.6 Plaintiff expressly represents herein that any medical payments made by
Medicare to date, if any, arising out of the Incident have been paid or will be paid
from the lump sum of this settlement agreement and not from any Medicare Set -
Aside. Plaintiff shall be responsible for and agrees to indemnify, defend and hold
Defendants harmless from any cause of action, including, but not limited to an
action for conditional payments made by Medicare, ruciuctmg past, present and
future benefits.
4. Release.
4.1 General Release.
Aside from the executory provisions of this Agreement, Plaintiff, and her
predecessors and successors in interest, hereby release Defendants City and 1700 East
Walnut (and their respective officers, employees, agents, representatives and attorneys)
of and from any and all manner of liabilities, demands, obligations, costs, expenses, sums
of money, controversies, damages, reckonings, and liens of every kind or nature
whatsoever, whether known or unknown, based on, arising out of, relating to or in
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connection with the Action, the operative Complaint, or any matter, cause or thing
whatsoever occurred, done, omitted or suffered to be done, up to and including the date
of execution of this Agreement, including but not limited to, any of the above arising out
of. based on, connected with or related to the Action, and all claims that have been and
could have been made by Plaintiff in relation to the facts discussed in the operative
Complaint against the City and 1700 East Walnut, including, but not limited to, any
claims for malicious prosecution and /or abuse of process.
In addition, Defendants and their predecessors and successors in interest, hereby
release each Defendant (and their respective officers, employees, agents, representatives
and attorneys) from any and all manner of liabilities, demands, obligations, costs,
expenses, sums of money, controversies, damages, reckonings, and liens of every kind or
nature whatsoever, whether known or unknown, based on, arising out of, relating to or in
connection with the Action, the operative Complaint, the operative Cross - Complaints or
any matter, cause or thing whatsoever occurred, done, omitted or suffered to be done, up
to and including the date of execution of this Agreement, including but not limited to, any
of the above arising out of, based on, connected with or related to the Action, and all
claims that have been and could have been made by Defendants in relation to their
respective Cross - Complaints.
4.2 Civil Code Section 1542 Waiver.
The Releases set forth in this Agreement are specifically intended as full and
complete releases against Defendants City and 1700 East Walnut as specified herein,
arising from the Incident, the Action and the Complaint of any nature whatsoever, for all
damage, injury, loss, expense, including any consequential expense, loss or damage,
whether the same be known or unknown , suspected or unsuspected or have appeared or
developed and all rights under California Civil Code Section 1542, which provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING G TtiE RELEASE, WHICH
H
IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
Except as specifically provided herein, Plaintiff waives and relinquishes any
rights and benefits which he /she /they haslhave or may have under Civil Code §1542 to
the full extent that he /she /they may lawfully do so pertaining to the subject matter of this
Agreement.
5. Warranties and Indemnity.
Plaintiff responds and warrants that she has not previously assigned or transferred,
or purported to assign or transfer, to any person or entity, any claim, demand, damage,
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debt, liability, obligation, account, reckoning, costs, expense, lien, action or cause of
action, or any portion thereof, that is released in this Agreement.
Plaintiff agrees to indemnify, defend and hold harmless Defendants and any of
their partners, officers, directors, employees, shareholders, subsidiaries, related affiliates
or entities or predecessors or successors, assigns, representatives, accountants, agents,
insurers, adjustors and attorneys, are sued by any lien holders, medical care providers
and/or medical insurance companies from any against any claim, demand, debt, liability,
account, reckoning, obligation, cost, damage, expense, lien, action or actions (including
the payment of attorneys' fees and costs actually incurred, whether or not litigation is
commenced), based on or arising out of or in connection with any transfer or assignment
or purported or claimed transfer or assignment of any claim, demand, damage, debt,
liability, Vb11ption, account, reckoning, Bost, expense, hell, action or cause of action, or
any portion thereof, released in this Agreement.
6. Successors.
The provisions of this Agreement shall be deemed to obligate, extend to and inure
to the benefit of the legal successors, assigns, transferees, grantees and heirs of the
respective Parties.
7. Preparation of Agreement.
7.1 Opportunity to Consult with Counsel.
The Parties acknowledge and agree that they have been given the opportunity to
consult with independent counsel of their choice as to the terms of this Agreement prior
to their execution of this Agreement. The Parties further acknowledge and agree that
each ofthern Sias cooperated 1n the drafting and preparation of this Agreement, and any
construction of this Agreement shall not be construed against any individual Party as the
draftsman hereof.
7.2 Inducement and Reliance.
The Parties acknowledge that no promise, representation or warranty whatsoever,
express or implied has been made that is not contained in this Agreement for the purposes
of inducing any party to execute this Agreement.
7.3 Integration.
The Parties agree and acknowledge that this Agreement contains the entire
agreement and understanding concerning its subject matters between them regarding the
settlement of the Action, Complaint, and claims relating thereto. This Agreement
supersedes and replaces all prior negotiations and any proposed agreement and
agreements, written and oral.
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7.4 Modification or Waiver.
This Agreement, and any provision in it, cannot be modified or waived in any
way, except by a w7itten agreement signed by each Party hereto, expressly consenting to
a specific modification or waiver.
8. Enforcement.
8.1 Governing Law.
This Agreement has been negotiated, drafted, and executed, and became effective,
in the state of California, and shall in all respects be interpreted, enforced and governed
by and under the laws of the State of California. In the event that any statute, judicial
precedent or other laws of the State of California shall require or otherwise dictate that
the laws of another state or jurisdiction be applied in any such action or proceeding, it
shall be superseded by this paragraph and the remaining laws of the State of California
shall nonetheless be applied in such action or proceeding.
8.2 Retention of Jurisdiction.
Pursuant to California Code of Civil Procedure Section 664.6, the Parties agree
that the Superior Court of the State of California, County of Los Angeles, Department 91,
to which the present Action has been assigned, shall retain jurisdiction over the Parties
herein to enforce the Settlement. until performance in full of the terms of the settlement.
8.3 Attorneys' Fees.
In the event that any party to this Agreement, or any person or entity acting for
them, commences an action or proceeding to enforce any provision of this Agreement,
including breach of confidentiality, or are required to defend any action or proceeding the
defense to which is any provision of this Agreement, the unsuccessful Party or Parties
agrees to pay the successful Party or Parties all recoverable attorneys' fees and costs
allowed under Code of Civil Procedure Section 1033.5 which are incurred by the
successful Party or Parties in anv such action or proceeding.
8.4 Severability.
Should any provision of this Agreement be declared or determined by the
aforementioned Court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term or provision
shall not be deemed to a part of this Agreement.
9. Execution.
9.1 Counterparts.
This Agreement car. be executed in duplicate/ multiple counterparts, each of
which shall constitute an original of this Agreement once each Party hereto has signed
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and delivered at least one such counterpart to all other Parties. This Agreement will be
deemed fully executed and effective when it has been duly signed by all of the Parties
named herein. Signatures may be sent by facsimile or electronic mail.
9.2 Authority to Execute.
Each of the individuals executing this Agreement warrants and represents that the
individual has full authority to do so on behalf of the Parry for whom that individual has
signed.
BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT THEY
HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR OWN LEGAL
COUNSEL ABOUT ITS EFFECT, AND THAT THEY FULLY UNDERSTAND IT.
Dated: .2014 Plaintiff, Kimberly Lynn Springfield
Dated: 1. , 2014
Dated: , 2014
Kimberly Lynn Springfield
Zn Cit of Fl Se undo
Gre arpen r, City Manager
CI OF EL SEGUNDO
Defendant, 1700 East Walnut Associates,
LLC
By:
-J'
Its.
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APPROVED AS TO FORM AND CONTENT ONLY
Dated: , 2044
Dated: /7't 13 _, 2014
Bated.: , 2014
BERMAN MORE GONZALEZ
By:
Jaimi M. Groothuis, Esq.
Attorneys for Plaintiff, Kimberly Lynn
Springfield
JENKINs & I- Ioemt, LLP
By:
BRADLEY & GMELICf3
LN
Jonathan A. Ross, Esq.
Attorneys for Defendant, 1700 East Walnut
.Associates, LLC
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and delivered at least one such counterpart to all other Parties. This Agreement will be
deemed fully executed and effective when it has been duly signed by all of the Parties
named herein. Signatures may be sent by facsimile or electronic mail.
9.2 Authority to Execute.
Each of the individuals executing this Agreement warrants and represents that the
irdivid aal has 6x11 authority to do so on behalf of the Party for whom that individual has
signed.
BY SIGNING- THIS AGREEMENT, THE PAR`T'IES CERTIFY THAT THEY
HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR OWN LEGAL
COUNSEL $T . A OT iT ITS EFFECT, AND 7 A'r -r U-,T Z'r rr r tr r n1 T-1 r a 'AND
r -r
t [ L x 1 U 1 L.G S ,� III
Dated: m, 2014 Plaintiff, Kimberly Lynn Springfield
Kimberly Lynn Springfield
Dated: , 2414 Defendant, City of El Segundo
Greg Carpenter, City Manager
CITY OF EL SEGUNDO
Dated: �' , 2414 Defendant, 1740 East 'Walnut Associates,
LLC
7 I �r -u c.sr -v
By: tf �s r/ qtr rcf.
Its:
7 if
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APPROVED AS TO FORM AND CONTENT ONLY
Dated: 2014 BERMAN WRE, GONZALEZ
Jn, i
ami M. Groothuis, Esq.
Attorneys ror Plaintiff, Kimberly Lynn
Springfield
Dated: 2014 JENKINS & HOGIN, LLP
By:
Trevor Rusin, Esq.
Attorneys for Defendant, City of El Segundo
Dated: ,2014 BRADLEY & GmELICH
am
Jonathan A. Ross, Esq.
Attorneys for Defendant, 1700 East Walnut
Associates, LLC
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APPROVED AS TO FORM AND CONTENT ONLY
Dated; , 2014 BERMAN MORE. GoNLAt,I:Z.
By-,
Dated: , 2014
Ja.imi M. Groo €huffs, Esq,
Attorneys for Plaintiff, Kimberly Lynn
Springfield
JENKINS & l ToGiN7 LUP
By:
Trevor Rusin, Esq.
Attorneys for Defendant, City of El Segtinclo
Dated: � , 2014 BRADLEY & GMELICH
By:
Jonatban A. RR-,
Attorneys for Defendant, 1700 East Walnut
Asso6a #es, LLC
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