Loading...
HomeMy WebLinkAbout1987-08-11; City Council; Resolution 9199< 1 2 3 4 E s 1c t 11 l! 2( 2: 21 2: 21 2: 21 2' 21 0 RESOLUTION NO. 9199 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF CODY v. HARGAS WHEREAS, by recommendation of the City Attorney of the City Council of the City of Carlsbad, California, has approved a settlement in the case of Cody v. Hargas; and WHEREAS, there are sufficient funds available in the liability self insurance reserve account to pay the settlement, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the expenditure of $15,000 from the liability self insurance reserve is authorized for the settlement of said case. 3. That the Council accept the Release and Satisfaction Agreement, attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 11th day of August , 1987, by the following vote to wit: AYES: Council Members' Lewis, Kulchin and Mamaux NOES: None ABSENT: Council Members Pettine and Larson ATTEST: d- 44% ALETHA L. -&lUTENKRANZ, CitGlerk EXHIBIT "A" RELEASE AND SATISFACTION KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of the sum of fifteen thousand dollars exactly ($15,000.00), receipt of which is hereby acknowledged, the undersigned, DAVID SCOTT CODY, does hereby acknowledge full satisfaction and payment of each and every claim and/or demand of whatever kind or nature that now exists or may hereafter accrue on behalf of the undersigned against the CITY OF CARLSBAD, its agents and servants, or any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, charged with responsibility for or liable directly, indirectly or vicariously for damages and injuries to the undersigned, alleged to have arisen or resulted from an incident, casualty or even which occurred on or about August 8, 1983, in the City of Carlsbad, County of San Diego, State of California, and for which said damages the undersigned claims that said CITY OF CARLSBAD, its agents and servants, at said time and place, are legally liable in damages, which said legal liability and damages are disputed and denied. The undersigned do hereby release and discharge said CITY OF CARLSBAD, its agents and servants, and any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and from each and every claim and/or demand of whatsoever kind or nature, arising or to arise in favor of the undersigned, including all claims for damage to property attorney's fee, loss of earnings, loss of services, or special damage of any character, by reason of or growing out of the aforesaid incident, casualty or event. The undersigned will dismiss with prejudice that certain action now pending in the superior Court for the County of San SCOTT CODY V. MYRALINN HARGAS, ET Al., and files therein, EXCEPT as to Defendant AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT AND PAYMENT, IT IS EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and final settlement shall never be treated as an admission of liability or responsibility at any time or in any manner whatsoever on the part of the parties herein released. 2. This release is expressly intended to cover and include all claims and attorney's fees, several or otherwise, past, present or future, which can or may ever be asserted by heirs, or otherwise, including all causes of action therefor, as the result of the aforesaid accident, casualty or event, or the effects or consequences thereof . 3. The undersigned understands and agrees that this is a full and final release and that this release covers and includes all claims and attorney's fees of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claims under Section 1542, Civil Code of California, are hereby expressly waived. The undersigned understands said Section 1542 provides: -2- "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 affected his settlement with the debtor. 4. The undersigned will indemnify and save harmless said CITY OF CARLSBAD and persons above named, its agents, and servants, and any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and from any and every claim and/or demand of every kind or character, including all causes of action therefor, which can or may ever be asserted by reason of injury to the undersigned as the result of the aforesaid accident, casualty or event or as a result of this settlement . 5. The undersigned shall be considered to have agreed to all the terms of this release and that the above-mentioned sum is the entire and only consideration for this release. 6. This releae shall bind and be binding upon the heirs, executors, administrators and assigns of the undersigned. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS FORM: It is unlawful to: a. Present or cause to be presented, false or fraudulent claim for the payment of a loss under a contract of insurance. b. Prepare, make or subscribe any writing, with intent to present or use the same or to allow it to be presented or used in support of any such claim. -3- Every person who violates any provision of this section is punishable by imprisonment in state prison or by fine not exceeding one thousand dollars ($1,000) or both. The undersigned does hereby authorize and direct that payment of said sum of fifteen thousand dollars ($15,000.00) be made by check or draft payable to the undersigned. IN WITNESS WHEREOF, the undersigned does hereunto set his hand and seal this 17th day of June I 1987. STATE OF CALIFORNIA 1 : ss COUNTY OF ~XJXXXX5X San BernarQino On this 17th day of June , 19 87 , before me, the undersigned notary public in and for the above county and state, residing therein, duly commissioned and sworn, personally provided to me on the basis of satisfactory evidence, to be the same person(xsx)described in and whose name is subscribed to this instrument, and acknowledged to me that he&kne&xkxey executed the same. appeared **DAVID SCOTT CODY** ? *E-3&d.xkRex&** ,x= Notary Public in and for the State of California I represent plaintiff in this litigation and I have read the foregoing "Release and Satisfaction" and have reconmended that my client execute the same. fessional Law By : -4- . REA0 THIS BEFORE SIGNING 0 RELEASE IN FULL OF ALL CLAIMS AND RIGHTS NO CENTS (J100,000.00 I. receipt of which is acknowledged, I, being of lawful age, RELEASE, ACQUIT AND FOREVER DISCHARGE SEE ATTACHMENT TO RELEASE their agents and representatives from any and all rights, claims, demands and damages of any kind, known or unknown resulting from personal 83, day of August? ,19- 8th injuries, death ond property damage, arising from on accident that occurred on or about the at or near Rancho Santa Fe Road and La Costa Avenue, County of San Diego I agree that this release shall not destroy or otherwise affect he rights of persons on whose behalf this payment is made, or persons who may claim to be damaged by reason of he accident, to punue any legal remedies hey may have ogoinst the undersigned or any other penons. I unaerstmd ond agree that this release extends tu and includes any and all of my damages, injuries and claims which I do not anticipate or know cbout or suspect to exist, and to any and oll damage, injuries or claims which may develop in the future, and I hereby expressly waive and relinquish ony ond all rights under any law or stutute to the contmry. I undentcnd that the injuries are or may be permanent; that he injuries are or may be progressive and become more serious and that the length of disability and recovery is uncertain. I nevertheless consider that the money now being paid me is fair and equitable under all circumstuncsa. I accept it as u full and iinol settlement of all cloims, rightx and damages which t now have or may have against the portiei being relecsed, their agents or representatives. I- moking this agreement I hove not relied on .totements nor representations regarding my rights, claims for damages, focts of Occident and noture ond extent of my injuries by the parties being released, their agents ond representatives. On the contmry, I have considered all there motters myself ond hove relied entirely on my own judgmant. I understand that the amount of this settlement is a compromise settlement of a doubtful ond disputed cloim or rights for all damage5 orising cwt of the Occident reierred to above. It is furher agreed that his settlement is not to be considered as on admission of any respansibility whatsoever, in whole or in part, for the accident by tttc parties released, their agenb or representatives. This release contuins the entire agreement between me ond the parties released and their agents and representutives ond it is agreed that he terms of this release are contmctwl and not a mere recital. L This is not a Release as to defendant Tally Drake I UNDERSTAND THATTHIS (5 ALL THE MONEY i WILL RECEIVE AS A RESULT OF THIS ACCIDENT. The California Insurance Code Section 556 requires that this document contain the following language which is a port of that section: It is unlawful to: (0) Present or cause to be presented any false or fraudulent claim for the poyment of a lors under o contract of insurance. cb) Prepare, mxke,or suhcribe ony writing, Nith intent to present or use the some, or to allow it to be presented or used in support of ony such claim. Every person who violotes ony provision of this section is punishable by imprisonment in he State prison not exceeding three years, or by jy fine lot exceeding one thousand dollars, or by both. CODY v. HARGAS Superior Court Case No: N25547 ATTACHMENT TO RELEASE IN FULL'OF ALL CLAIMS AND RIGHTS RELEASE, ACQUIT AND FOREVER DISCHARGE: MYRALINN HARGAS, CITY OF CARLSBAD, DAON CORPORATION & PENNINSULA COVE CORPORATION, Successor to La Costa Land Company, HILLSIDE PATIO HOMES ASSOCIATION, MERCURY PROPERTY 4 1 IANAGEMENT, INC., BRIAN LEVINE, SEYMOUR LEVINE and WXRMINGTON DEVELOPMENT. CSZ;CZZZiGZ This is not a Release as to Defendant Tally Drake. S 556. False or fraudulent claim; penalty (a) It is unlawful to: (1) Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss under a contract of insurance. injury with more than one insurer with an intent to defraud tlic with intent to present or use the same, or to allow it to be presented or used in support of any such claim. (2) Knowingly file multiple claims for the same loss or Knowingly prepare, make, or subscribe to any writing, - insurer. (3) (b) Every person who violates any provision of this section is punishable by imprisonment in the state prison, for two, three or four years, or by fine not exceeding ten thousand dollars ($lO,OOO.OO), or by both. (c) Notwithstanding any other provision of law, probcttion shall not be granted to, nor shall the execution or imposition of a sentence be suspended for, any adult person convicted of a viola- tion of this section who has been previously convicted OF violation or' this section as an adult under charcjes separately brought and tried two or more times. The existence of any fact which would make a person ineligible for probation under this subdivisoin shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea Of guilty or nolo contendere or by trial by the court sitting with- out a jury. or found to be true or the court finds that a prior conviction was invalid, the court shall not strike or dismiss any prior convictions alleged in the information or indictment. This subdivision does not prohibit the adjournment of criminal proceedings pursuant to Division 3 (commcncinc] wi til Section 3000) or Division 6 (commencing with Section 6000) of the Fielfare and Institutiohs Codc. Except where the existence of such fact was not admitted ,' . /////