SETTLEMENT AND MUTUAL RELEASE AGREEMENT

This Settlement Agreement and Mutual Release (Agreement) is entered into by and
between Plaintiff Jennifer Da Silva (Plaintiff), and Defendant City of Carmel-by-the-Sea on
behalf of its City Council members, officials, officers, agents and employees of any kind, and
Defendant Luke E. Powell (Defendants). The Plaintiff and Defendants are collectively
referred to herein as the Parties. This agreement relates to the events as alleged in the
complaint filed by Plaintiff in the Superior Court of the State of California, County of Monterey,
Case No. M132929.
RECITALS
A.

The Plaintiff brought this lawsuit against Defendants in the Superior Court of the

State of California, County of Monterey, Case No. M132929 (Action).

B.

The Parties now wish to resolve and settle the disputes in the above-referenced

Action; including, but not limited to, those claims asserted in the Action, claims for costs and
attorneys fees, and all claims and controversies which each has or may have against the other,
arising out of this Action. This Agreement resolves and settles any and all potential claims and
controversies the Plaintiff may have against Defendants, and their past, present or future board
members, managers, employees, agents, representatives, attorneys, predecessors, successors,
affiliates, or assigns, up to and including the date of signing of this Agreement.
AGREEMENT
In consideration of the above premises and the mutual promises set forth below, the
Parties agree as follows:

SETTLEMENT AND RELEASE

Da Silva v. City of Carmel-by-the-Sea et al., Case No. M132929
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1.0

RELEASE AND DISCHARGE.

1.1

Except for the obligations of the Parties set forth in this Agreement, Plaintiff

hereby releases, acquits, and forever discharges Defendants from any and all claims, expenses,
debts, demands, costs, and other actions or liabilities of every nature, whether known or
unknown, whether in law or in equity, which they may have had or may claim to have as a result
of their lawsuit including contemplated or alleged additional civil actions, or state or federal
administrative complaints.
1.2

Plaintiff expressly acknowledges this release is intended to include in its effect,

without limitation, all claims and causes of action which she does not know or suspect to exist in
her favor and this release contemplates the extinguishment of all such claims and causes of
action, to the maximum extent allowed by law.
1.3

The Parties each expressly waive and relinquish all rights and benefits afforded by

Section 1542 of the Civil Code of California, and do so understanding and acknowledging the
significance and consequences of such a specific waiver of Section 1542. Section 1542 states:
CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE -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 the
release, which, if known by him or her, must have materially affected
his settlement with the debtor.
1.4

The Plaintiff shall be solely responsible for the resolution and payment of any

outstanding liens, either known or unknown, arising from Plaintiffs alleged injuries. Plaintiff
agrees to fully indemnify Defendants and holds Defendants harmless from any claim, tax
liability or lien, lawsuit, attorney fees or costs of litigation brought against Defendants by any
person or entity arising as a result of Plaintiffs waiver or personal recovery under this
Agreement, whether said person or entity disputes the terms of this Agreement, the authority of
SETTLEMENT AND RELEASE
Da Silva v. City of Carmel-by-the-Sea et al., Case No. M132929
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the undersigned to make this Agreement, or for any additional claim of damages arising out of
Plaintiffs allegations.
2.0

PAYMENTS. As compensation for all claims of Plaintiff and consideration for

the promises contained in this settlement and release, Defendants hereby agree to pay to Jennifer
Da Silva and L+G, LLP, the total sum of one hundred fifty thousand dollars ($150,000.00).
3.0

DISMISSAL WITH PREJUDICE. Plaintiff authorizes and directs her attorneys,

Robert Rosenthal and L+G, LLP, to immediately stipulate to dismissal of the entire action with
prejudice.
4.0

NO ASSIGNMENTS. The Parties to this Agreement warrant to one another that

each is the sole owner of all right, title and interest in and to every claim and other matter which
such Party releases and/or confers herein, and that other than as provided herein, they have not
assigned or transferred, or purported to assign or transfer to any person, firm or corporation,
either voluntarily or involuntarily, any claim, cause of action, or other matter herein released
and/or conferred.
5.0

CONSULTATION WITH LEGAL COUNSEL. Plaintiff represents that prior to

execution of this Agreement, she has consulted with legal counsel concerning the terms and
conditions set forth herein. Plaintiff acknowledges and represents that she has relied solely upon
facts obtained from her own investigation in executing this Agreement and that she has not relied
upon any statement or representation of any nature from Defendants attorneys or
representatives.
6.0

ENTIRE AGREEMENT. This Agreement comprises the entire agreement and

understanding of the Parties with respect to the subject matter hereto, and any and all prior
discussions, negotiations, commitments related hereto are hereby merged herein. No covenants,
SETTLEMENT AND RELEASE
Da Silva v. City of Carmel-by-the-Sea et al., Case No. M132929
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agreements or warranties, oral or otherwise, express or implied, have been made by any party
hereto, except as specifically set forth in this Agreement. Each party to this Agreement
acknowledges that no representations, inducements, promises or agreements, oral or otherwise,
have been made by any party, any attorney for any party, or anyone acting on behalf of any
party, which are not contained herein. This Agreement is the full and final agreement between
the Parties. Any modifications to this Agreement shall not bind the Parties unless set forth in
writing and executed by all the Parties.
7.0

NO ADMISSION OF LIABILITY. This Agreement is intended by the Parties to

accomplish the settlement of claims and causes of action which are disputed. This Agreement
shall not in any way be construed as an admission by any of the Parties hereto of any liability or
responsibility to the other, or of the omission of any unlawful or wrongful act whatsoever or that
any debt is owed.
8.0

AUTHORITY TO SETTLE. Each party to this Agreement has the power and

authority to enter into and to perform this Agreement. The persons executing this Agreement
have been duly authorized to do so.
9.0

NO WAIVER.

No provision of this Agreement may be waived unless by a writing signed by all Parties
hereto. Waiver of any one provision of this Agreement shall not be deemed to be a waiver of
any other provision. This Agreement may be modified or amended only by a written agreement
executed by all of the Parties hereto.
The covenants included in this Agreement are intended to be separate and divisible
covenants, and if, for any reason, any one or more thereof shall be held to be invalid or

SETTLEMENT AND RELEASE

Da Silva v. City of Carmel-by-the-Sea et al., Case No. M132929
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unenforceable, in whole or in part, it is agreed that the same shall not be held to affect the
validity or enforceability of any other such covenants of this Agreement.
Each Party acknowledges and represents to the other that they are aware that if they, their
agents or employees, or any of their attorneys, may hereafter discover facts different from or in
addition to those which their attorneys now know or believe to be true with respect to the claims,
demands, liabilities, responsibilities, obligations, remedies, damages, losses, defenses, causes of
action or actions of every kind herein released, they agree that this instrument shall be and
remain in effect as a full and complete release of those matters set forth herein, notwithstanding
any such different or additional facts.
10.0

UNDERSTANDING AND VOLUNTARY EXECUTION. Plaintiffs counsel

has read and explained the foregoing Agreement to Jennifer Da Silva; the undersigned parties
accept and agree to the provisions contained therein, and hereby execute it voluntarily with full
understanding of its consequences.
11.0

FEES AND COSTS. The Parties shall bear their own costs, expenses and

attorneys fees including, but not limited to, costs, expenses or attorneys fees incurred or in
relation to this lawsuit.
12.0

INTERPRETATION. This Agreement shall be construed and enforced pursuant

to the laws of the State of California.

13.0

ENFORCEABILITY. The parties agree that this settlement may be enforced by

motion pursuant to Code of Civil Procedure section 664.6 and that the court retains jurisdiction over
the parties to enforce the settlement until performance in full of the terms of the settlement.
14.0

EXECUTION AND COUNTERPARTS. This Agreement consists of six (6)

pages. All signatures are contained on page 6. The Parties agree that this Agreement may be
SETTLEMENT AND RELEASE
Da Silva v. City of Carmel-by-the-Sea et al., Case No. M132929
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executed in one or more counterparts which together shall coJl8titute but one and the same
instrument. A filx. or scanned signature will have the same force and effect as the original.
15.0

EFFECTIVE DATE. This Agreement shall become effective immediately upon

execution by the Parties. Any party seeking to challenge any provision, and or covenant, in this
Agreement bears the sole responsibility of all costs and expenses, including attorneys' fees
associated with such claims. Further, ifany party violates any covenant or provision hereto, or
files a claim or lawsuit based on rights released or waived under this Agreement, that party will
pay for all costs incurred by the other in defending against said breach or claim.

Date:

1/ 9 /~

Approved as to form.
Date:

p rj It {;,

Approved as to form.
Date:

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SETI'LBMENT AND RELEASE
DaSilva v. City ofCarmel-by~lhe-Sea et al., Case No. Ml32929
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