HomeMy WebLinkAbout1990-03-06; City Council; Resolution 90-491
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RESOLUTION NO. 90-49
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA AUTHORIZING THE
EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE
LAWSUIT ENTITLED KOOKER V. STANDARD PACIFIC
WHEREAS, after recommendation of the City Attornel
City Council of the City of Carlsbad, California has deter
that it is in the City's best interest to settle the case ent
Kooker v. Standard Pacific and
WHEREAS, there are sufficient funds available ir
liability self-insurance reserve account to pay the settleme
NOW, THEREFORE, BE IT RESOLVED by the City Council o
City of Carlsbad, California, as follows:
1. That the above recitations are true and correc'
2. That the City Council approves the ltSettl1
Agreement and Full Release of All Claims" attached as Exhibit
authorizes disbursement of $46,250 from the liability ,
insurance reserve account.
3. That the Mayor of the City of Carlsbad is hi
authorized and directed to execute said agreements for an on bi
of the City of Carlsbad.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting o
City Council of the City of Carlsbad on the 6th day of Ma
1990, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, and Larson
NOES: None
ABSENT: Council Member Mamaux
ATTEST :
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SETTLEMENT AGREEMENT AND FULL REIJEASE OF ALL CLAIMS
1. PARTIES. The parties to this Settlement Agreement are
the CITY OF CARLSBAD, a municipal corporation, duly organized and existing under the laws of the State of California and situated
in the County of San Diego (hereinafter "CITY") and STANDARD PACIFIC, L.P., a Delaware limited partnership, by its managing
general partner, StanPac Corp, a Delaware Corporation
[hereinafter !'STANDARD PACIFIC")
2. RECITALS.
(a) CITY is a certain defendant, cross-complainant and cross-defendant in San Diego Superior Court Consolidated Civil
Action No. N30635 (hereinafter the "ACTION").
(b) STANDARD PACIFIC is a defendant, cross-defendant and cross-complainant in the ACTION and was one of the developers of the llWoodbine-El Camino Portall' Subdivision.
(c) The consolidated Action is comprised of the following cases: Kooker v. Standard Pacific of San Dieqo, et al.
Superior Court Case No. N30635; Ferquson, Smilde and Pontarelli
(Allstate Intervention) v. Standard Pacific of San Dieqo, et al. Superior Court Case No. N34055; FramptOn and Buescher v.
Standard Pacific of San Dieso, et al. Superior Court Case No.
N38546; Grove v. Standard Pacific of San Die o et al. Superior Court Case No. N38551; State Farm v. Standard Pacific of San Dieqo, et al. (Pashby) SI Farm v. Standard Pacific of San Dieso, et al. (Roger) Superior
Court Case No. N30887; Roqer, et al. v. Standard Pacific of San
Dieqo, et al. Superior Court Case Nos. 540283/N34705; 559225;
Gordon v. Standard Pacific of San Dieqo (llGordon 1") Superior
Court Case No. N37950; Gordon v. Brittinsham (ItGordon IIVt) Superior Court Case No. N38619; Larsen v. Standard Pacific of
San Dieqo Superior Court Case No. 574508; Davies v. Standard
Pacific of San Dieqo Superior Court Case No. N32505.
The Action generally involves claims of construction defect
and improper maintenance Of public utilities and improvement- involving the Woodbine - El Camino Portaltl'Subdivision, C.T. 73-
,' 36 Project, located at Trieste Drive, and La Portalada Drive, in the City Of Carlsbad, County of San Diego.
3. INTENT.
(a) BY entering into this Settlement Agreement and
Full Release of All Claims (hereinafter llAGREEMENT"), the parties intend to settle and resolve the claims and disputes involved in the ACTION, as those claims and disputes exist among and between the Parties to this Settlement Agreement involving the above- described cases in Paragraph 2(c) above.
(b) BY entering into this Settlement Agreement, the
parties agree that this includes all claims which the named
Plaintiffs may have had against the CITY for those existing
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damages alleged in their Complaints and STANDARD PACIFIC'S Cross- Complaints, including breach of mandatory duty, inverse, negligence and indemnity.
(c) By entering into this Settlement Agreement, the
parties agree that to the extent defendant Sommers Development
Corporation (hereinafter "SOMMERS") has outstanding claims
against the CITY this AGREEMENT includes those claims as alleged in its Cross-Complaint filed against the CITY should STANDARD PACIFIC'S pending appeal in Case No. 4 Civil No. DO09263 be
successful in the Fourth District Court of Appeal in the State of
California.
(d) By entering into this AGREEMENT, it is expressly understood and agreed that no party is admitting any liability whatsoever to any other party known or unknown. The parties enter into this AGREEMENT to compromise disputed claims and solely to avoid the expense, delay, inconvenience, and
uncertainty of further litigation and buy their peace.
4. CONSOLIDATED ACTIONS. The ACTION has been consolidated
with several other San Diego County Superior Court actions. It is contemplated that, upon consummation of this AGREEMENT, the CITY will no longer be a party to the consolidated actions. It is further contemplated, however, that STANDARD PACIFIC will remain a party to the consolidated actions. By entering into
this AGREEMENT, it is expressly understood and agreed that
STANDARD PACIFIC is not admitting any liability whatsoever to any
plaintiff, cross-complainant, or cross-defendant in the consolidated actions.
5. COURT CONFIRMATION. STANDARD PACIFIC and CITY shall
jointly seek a hearing confirming this settlement with the San
Diego Superior Court if either party so requests.
6. SETTLEMENT PAYMENTS.
(a) The CITY agrees to pay STANDARD PACIFIC the total
sum of One Hundred Twenty-Five Thousand Dollars ($125,000).
(b) Such payment shall be made in full pursuant to the terms of this AGREEMENT to STANDARD PACIFIC immediately upon
approval by the Carlsbad City Council, but no later than March 14, 1990.
7. NO REPRESENTATIONS. It is expressly understood that
none of the parties hereto are making any representations to any
other party concerning the condition or value of the property.
None of the parties are hereby adopting the reports or opinions of any expert witness retained by any of the other parties with respect to the condition or value of the property.
8. MUTUAL FULL RELEASE OF ALL CLAIMS.
(a) In consideration of the promises and covenants of
the parties hereto, STANDARD PACIFIC, and each of its partners,
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divisions, subsidiaries, parent corporations, insurers, related companies, predecessors, successors, assigns, and affiliated companies and each of such entities past, present and future, officers, directors, shareholders, agents, lawyers, employees, and representatives hereby fully releases and discharges the CITY and each of its partners, divisions, related companies, predecessors, successors, assigns, and affiliated companies and each of such entities past, present and future, officers, directors, shareholders, agents, lawyers, employees, representatives, appointed or elected officials and its insurers,
from any and all claims, demands, actions, causes of action in
law or in equity whether statutory, constitutional or otherwise,
and rights arising from the claims in those cases described above in Paragraph 2 (c) .
(b) In consideration of the promises and covenants of the parties hereto, the CITY, and each of its partners, divisions, subsidiaries, parent corporations, insurers, related companies, predecessors, successors, assigns, and affiliated companies and each of such entities past, present and future, officers, directors, shareholders, agents, lawyers, employees, and representatives hereby fully releases and discharges STANDARD PACIFIC and each of its partners, divisions, related companies,
predecessors, successors, assigns, and affiliated companies and each of such entities past, present and future, officers, directors, shareholders, agents, lawyers, employees,
representatives, and its insurers, from any and all claims,
demands, actions, causes of action in law or in equity whether
statutory, constitutional or otherwise, and rights arising from
the claims in those cases described above in Paragraph 2(c).
9. NO ADMISSION OF LIABILITY. It is further understood
and agreed that this AGREEMENT represents the settlement and release of disputed claims. Neither the payment of any sums of money nor the acceptance of this Agreement shall constitute or shall be construed as an admission of liability whatsoever in any
amount or percentage by any of the parties hereto or by any of
their officers, directors, agents, servants, employees, divisions, subsidiaries or affiliated companies, or any of them.
10. WAIVER. It is expressly understood and agreed that all rights under section 1542 of the Civil Code of the State of California are hereby waived with respect to the releases set
forth in this Agreement. Such section 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 affected his settlement
with the debtor.
Each party hereto understands and acknowledges the significance
and consequences of such specific waiver of section 1542 and
hereby assumes full responsibility for any injuries, damages, losses, rights of rescission, claims or liabilities'of or to such party that hereafter occur or become known to such party
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notwithstanding that such injuries, damages, losses, or liabilities may presently be unknown to such party.
11. NO REPRESENTATION. This AGREEMENT and Full Release of
All Claims incorporates the entire understanding among the parties and recites the sole consideration for the promises exchanged herein. In reaching this AGREEMENT, no party has relied upon any representation of promise except those expressly set forth herein.
12. DISMISSAL OF CROSS-COMPLAINTS. Upon payment of the amount described in paragraph 6(a)(b), STANDARD PACIFIC shall dismiss its Cross-Complaints with prejudice as to the CITY in each and every one of the cases listed in paragraph 2 of this AGREEMENT suma. The City shall dismiss its Cross-Complaints with Prejudice as to STANDARD PACIFIC and assign all its rights to STANDARD PACIFIC.
13. ASSIGNMENT OF RIGHTS AND COOPERATION. By this AGREEMENT the CITY will and does hereby assign to STANDARD PACIFIC all claims, rights, and causes of action asserted by the CITY in this action regarding the real property as against the plaintiffs, defendants, cross-defendants and any and all other .third-parties who are not parties to this Settlement Agreement. This assignment of claims, rights, and causes of action is made to the full extent permitted by law.
Further, CITY will cooperate in good faith to reasonably
assist in asserting claims and defenses available to the CITY to
an extent mutually agreeable by both parties including making
documents, property and witnesses reasonably available.
14. COSTS. The parties hereto shall each bear their own
costs in the action.
15. EXECUTION AND COUNTERPART. The parties hereto and
their respective counsel may execute this Agreement in counterparts. This Agreement shall become binding and effective upon execution hereof whether or not in counterparts by all
parties and their respective counsel.
DATED: 3/ 7/ 90 CITY
By :
Its: Mayor
/i / -+; ~ DATED: Ch, /‘it /(- STANDARD PACIFIC, L.P., a Delaware
Limited Partnership, by StanPac
Corp., a Delaware Corporation, its
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Its:
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APPROVED AS TO FORM:
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DATED: T/?/qo NEIL, DY TT, PERKINS, BRO & FRAN
By: @"&w
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A o C. Gershl5Sr
Mat ew P. Rocco
Attorneys for CITY OF CARLSBAD
DATED: JENNINGS, ENGSTFWND & HENRIKSON,
A Professional Law Corporation
[145\LLP\RELEASE,CC]
By : U.*b:A (A; dq 0 )L( .J
Elizabeth Claire Eldridqe I
Atkpdys for STANDARD PACIFIC L. P.
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