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HomeMy WebLinkAbout1984-02-14; City Council; Resolution 75051 2 5 4 F t r 1 E E I.[ 13 12 12 14 15 1E 17 1E 1s 2c 21 22 23 24 25 26 27 28 RESOLUTION NO. 7505 A RT3SOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE SETTLEMENT OF LITIGATION. The City Council of Carlsbad, California hereby resolves as follows: 1. That the settlement and release agreement attached hereto and made a part hereof is approved. 2. That the Assistant City Attorney as the attorney of record in the lawsuit entitled Richard G. Nieves et a1 v. City of Carlsbad et al, Case No. N21259 is authorized to execute the settlement agreement on behalf of the City of Carlsbad. 3. That the sum of $30,000 is appropriated from account number 71-1910-2870 for the purposes specified in the settlement agreement. adjourned PASSED, APPROVED AND ADOPTED at a/regular meeting of the City Council of the City of Carlsbad, California, held on the 14th day of F&ruary , 1984, by the following vote, to wit: AYES: NOES : None ABSENT: Council Menher Kulchin Council mers Casler, Lewis, Chick and Prescott ATTEST : a .' SETTLEMENT AND RELEASE AGREEMENT 1. The parties to this release are RICHARD G. NIEVES and HORTENSIA L. NIEVES hereinafter referred to as "PLAINTIFFS" and the CITY OF CARLSBAD, FRANK ALESHIRE and FRANK MANNEN hereinafter referred to as "DEFENDANTS." 2. LITIGATION: Differences have arisen between the Plaintiffs and Defendants relating to their respective rights and obligations. In connection with these differences a lawsuit numbered N21259 has been filed in the Superior Court of California for the County of San Diego wherein it is alleged that Plaintiffs suffered certain personal injuries and other damages as a result of the Defendants' conduct. 3. CONSIDERATION AND RELEASE: In consideration of the sum of thirty thousand dollars ($30,000) paid on behalf of the Defendants to Plaintiffs receipt of which is hereby acknowledged and in consideration of the dismissal with prejudice of case number N21259 Plaintiffs hereby release Defendants and their agents, servants, employees, successors, assigns, heirs, executives, administrators, indemnitors, and insurers of each of them from all known and unknown claims whether past, present or future for all liability or damages or other relief directly or indirectly arising from, related to, or sustained by reasons of the allegations contained in the first amended complaint on file in case number N21259. 3 It is understood and agreed that this is a full and final release of any and all claims arising out of the incidents or occurrences referred to in this lawsuit including the rights and interests of any heir, executor, administrator, successor , or assign of Plaintiffs either collectively or individually if any and it is agreed as a further consideration and inducement for this compromise settlement that it shall apply to all unknown and unanticipated injuries, deaths or any other damage, loss or liability resulting from the events which gave rise to this lawsuit. 4. WAIVER OF CIVIL CODE SECTION 1542: Plaintiffs hereby expressly waive all rights and benefits which they now have or in the future may have under and by virtue of the terms of Section 1542 of the Civil Code of the State of California which provides 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 by him must have materially effected his settlement with the debtor." 5. NO ADMISSION: It is understood that this release is of a disputed claim and it is understood that it is not an admission of liability for all or any part of said claims. 6. DISMISSAL OF LITIGATION: The parties agree that the above referenced lawsuit of RICHARD G. NIEVES and HORTENSIA L. NIEVES will be promptly dismissed with prejudice as to the CITY OF CARLSBAD, FRANK ALESHIRE and FRANK MANNEN with each party to bear his, her or its own costs. Plaintiffs hereby authorize their attorney Muns, Mehalick & Lynn and M. Richardson Lynn to -2- dismiss with prejudice the action now pending in the Superior Court of California of the County of San Diego, North County Branch, number N21259, on the files therein. 7. INDEMNITY: It is further understood and.agreed that in consideration of settlement of this action this agreement and the payment of the amount specified herein the Plaintiffs will indemnify and save harmless the Defendants and all of the persons, firms, or corporations from any and every claim, lien or demand or every kind or character which has been or may ever be asserted by way of subrogation or any other proceeding by reason of the injuries or other loss or damage of the effects or consequences thereof sustained by Plaintiffs or any other person, natural or artificial, claiming to be damaged thereby. The Plaintiffs agree that in addition to their general application the hold harmless provisions of this agreement shall specifically apply to the claims or demands for damage, loss or expense of the spouse, children, or other family of the Plaintiffs as well as to those of any insurance company, medical plan, governmental entity or agency, fraternal or benevolent organization, employer or any other party claiming to have suffered damage, loss or expense by reason of the occurrences described in the lawsuit; and to the cost of medical care and treatment of injuries to the Plaintiffs occasioned by the occurrences described in the lawsuit whether by way of subrogation, lien, intervention or otherwise. The Plaintiffs hereby declare and represent that the injuries -3- sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this release it is understood and agreed that the Plaintiffs rely wholly upon his or her own judgment, belief and knowledge of the nature, extent, effect, and duration of said injuries and liabilities therefore and each make this release without reliance upon any statement or representation of any person. 8. PERSONS BOUND: This release shall be binding upon the parties hereto and each of them as well as binding upon all heirs, assigns and successors of the parties . 9. APPLICABLE LAW: This release shall be governed by, construed and enforced in accordance with the laws of the State of California . 10. COPY DEEMED DUPLICATE ORIGINAL: It is understood and agreed that a true, accurate and complete photocopy of this document is deemed a duplicate original. Each of them to have the full force and legal effect as such. 11 . RELEASE UNDERSTOOD: The parties hereto certify that they have read this release and the quoted Civil Code section and fully understand this release and the quoted section and that they have consulted with their respective attorneys regarding the release and the quoted section. 12 . SETTLEMENT TO BE KEPT PRIVATE: The parties agree that the terms and conditions of and the reasons for this settlement shall not be discussed with the press, general public or any -4- other persons except the parties or their attorneys, provided, however, the settlement may be discussed by the immediate family members of the parties, the officers, employees and Council members of the City to the extent necessary to accomplish the Settlement. It is understood and agreed that the City Council may take whatever public action required by law to approve this agreement and appropriate the funds for payment of this settlement. DATED: DATED : DATED : DATED : RICHARD G. NIEVES HORTENSIA L. NIEVES CITY OF CARLSBAD BY: DANIEL S. HENTSCHKE FRANK ALESHIRE FRANK MANNEN -5- 7 DECLARATION OF ATTORNEY I am attorney licensed to practice law in the State of California and hereby represent and declare I have fully explained the foregoing release agreement to my clients, RICHARD G. NIEVES and HORTENSIA L. NIEVES, who in turn acknowledged to me an understanding of the release and the legal effect thereof and the signature on the release was personally made by RICHARD G. NIEVES and HORTENSIA L. NIEVES upon my advice and request. DATED : Muns, Mehalick & Lynn by : M. RICHARDSON LYNN Attorney for Plaintiffs