HomeMy WebLinkAbout1988-08-02; City Council; 9553; Settlement Agreement41 CI”’ OF CARLSBAD - AGENP BILL
AB# yfi.3
MTG. 8/2/88
DEPT. CA
DEPT. HD:-
PETER c. DAVID co. v. CITY OF CARLSBADC~TYA~
CITY MG
SETTLEMENT OF LAWSUIT ENTITLED TITLE:
RECOMMENDED ACTION:
Cf Council concurs, your action is to adopt Resolution No. LEY-257
CTEM EXPLANATION
rhis action arises out of a construction dispute over the zonstruction of the Central Business Storm Drain, Contract No. 3085
snd all parties have agreed to settle it for $25,000 from the City
snd $2,250 from the subcontractor for a total settlement amount of
$27,250. All parties agree to mutually waive any claims they have
sgainst the other and no party admits any liability or responsibility as a result of this settlement. The settlement fiocuments are attached herewith.
FISCAL IMPACT
Sufficient funds exist in the redevelopment fund balance.
EXHIBIT
Resolution No. SB-2 57
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RESOLUTION NO. 88-257
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING SETTLEMENT IN
THE CASE ENTITLED PETER C. DAVID COMPANY V.
CITY OF CARLSBAD.
The City Council of the City of Carlsbad, California does
iereby resolve as follows:
1. That certain Release and Satisfaction between Peter
!. David Company and the City of Carlsbad and A t S Construction
:ompany, Inc. for settlement of the lawsuit entitled Peter C. David
!o. v. Citv of Carlsbad, marked Exhibit A and made a part hereof,
.s hereby approved.
2. That funds in the amount of $25,000 are available in
:he redevelopment fund balance to support this settlement.
3. That the amount of $25,000 is hereby appropriated from
:he redevelopment fund balance to account number 810-840-3410-3085
ind the redevelopment director is authorized to release said funds
)ayable to Peter C. David Company and its attorney of record,
Ionteleone and McCrory.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the
'ity Council of the City of Carlsbad on the 2nd day of August
-I 1988, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
,TTEST:
,LETHA L. #AUTENKRANZ, City elerk
SEAL)
Page 2 of Resolution No. 88-257
RELEASE AND SATISFACTION
KNOW ALL MEN BY THESE PRESENTS:
That for and in consideration of the sum of twenty
seven thousand, two hundred fifty dollars ($27,250) payment of
which will be made within ten (10) days from the date of approval
of this Agreement by the City Council of CITY OF CARLSBAD, the
undersigned PETER C. DAVID COMPANY ("PCD") does hereby acknowl-
edge full satisfaction and payment of each and every claim and/or
demand of whatever kind or nature that now exists or may here-
after accrue on behalf of PCD against the CITY OF CARLSBAD and
A 61 S CONSTRUCTION COMPANY, INC. and their 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 PCD, alleged to have arisen out of
Contract No. 3085 entitled "Central Business Storm Drain" with
the CITY OF CARLSBAD, and for which said damages PCD 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.
PCD and CITY OF CARLSBAD release any and all claims
that either party may have against the other, arising out of in
any way connected with the aforementioned contract, including all
claims for damage to property, attorneys' fees, loss of earnings,
loss of services, or special damages of any character.
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PCD will dismiss with prejudice that certain action now
pending in the Superior Court for the County of San Diego
entitled Peter C. David Co. v. City of Carlsbad and numbered
N36001 on the files therein. Concurrently therewith, CITY OF
CARLSBAD will cause to be dismissed with prejudice the cross-
actions filed in that action; specifically, CITY OF CARLSBAD's
Cross-Complaint For Indemnity and Declaratory Relief, filed on
March 13, 1987, and the Cross-Complaint by A & S Construction For
Damages, Indemnity and Declaratory Relief, filed on or about
June 5, 1987.
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 attorneys' 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 aforementioned contract.
3. The undersigned parties understand and agree that
this is a full and final release and that this release covers and
includes all claims and attorneys' 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
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California, are hereby expressly waived. The undersigned parties
understand said Section 1542 provides:
"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 parties shall be considered to
have agreed to all the terms of this release and that the above
mentioned sums the entire and only consideration for this
release.
5. This release shall bind and be binding upon the
heirs, executors, administrators and assigns of the undersigned
parties.
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.
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.
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'. .' .- ,-
Payments of said sum of twenty seven thousand, two
hundred fifty dollars ($27,250) shall be made by check or draft
jointly payable to PETER C. DAVID CO. and Monteleone & McCrory.
/- .I-- ./
PETER.. c. ~Av&~MP*NY\ .
r- -_ Dated: I-. -
,- > - ,, -/- - - Dated:
.
s a:: e .
ANDREW CU DIWH NOTARY PueLic. CALIFOEMA '1 i natwc:
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