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HomeMy WebLinkAbout1996-11-19; City Council; 13902; SETTLEMENT OF LAWSUIT ENTITLED POWERS V. CITY OF CARLSBAD, ET AL. CASE NO. N681451 { -** r CITY OF C %@BAD -AGENDA BILL a* Yl I AB# 13. ?D& CITY MGF DEPT. CA CITY AT CITY OF CARLSBAD, ET AL. CASE NO.N68145 MTG. 1 1 /I 9/96 DEPT. HD TITLE: SETTLEMENT OF LAWSUIT ENTITLED POWERS V. ~ RECOMMENDED ACTION: 1 Adopt Resolution No. G& -32 5 authorizing the City to tender the balance insured retention of $500,000 to the California Affiliated Risk Management A settlement of the lawsuit entitled Powers v. City of Carlsbad. ITEM EXPLANATION: A settlement has been reached in a lawsuit brought by five members of a Carl against the City of Carlsbad and one of its police officers. The lawsuit arose from an automobile accident occurring on December 18, 1 intersection of Carlsbad Village Drive and Pontiac Drive in Carlsbad. A vehicle dr James Powers and occupied by his wife and three young children collided with police vehicle driven by Officer Gannon Maszk. Officer Maszk was in the process another vehicle driven by an unidentified driver for suspected violations of speed time the collision occurred between the police car and the Powers’ vehicle. The ve by the unidentified driver was not involved in the collision. Officer Maszk was proceeding eastbound on Carlsbad Village Drive at the time of th As he reached the intersection of Carlsbad Village Drive and Pontiac Drive, the POM began a left turn from northbound Pontiac Drive to westbound Carlsbad Villa Northbound traffic on Pontiac Drive is controlled by a stop sign. The collision OCCI the intersection. Mr. and Mrs. Powers and their three children were injured in the col of their children, Mark, aged 10 at the time of the accident, received serious brain injl ,I I 224 3 0 fx a- 4 Legal responsibility for the accident was disputed by both the Powers family and Carlsbad. Both sides agreed to a compromise settlement without admitting responsibility of the accident and to avoid the costs and uncertainties of a length) was scheduled to begin on November 18, 1996. The trial was expected to last weeks. FISCAL IMPACT: I S 0 .- 2 s * - .- 0 c S The City of Carlsbad belongs to a pool of public agencies which have joined togeth risks from serious injury accidents. In this case, Carlsbad is a member of two exces! pools which provide funds for catastrophic losses. Carlsbad’s self-insured retentior $500,000 per case which is authorized by adoption of Resolution No. 94-2, to be i this excess pool. That pool will take Carlsbad’s self-insured retention amount and with its own funds and those of PARSAC (Public Agency Risk Sharing Authority oi which have reached agreement with the Powers’ family to settle all of their claims for 1 ..I t ' f .* 88 Agenda Bill # ,3 ~ $02- Page 2 payment of $1.7 million. The settlement was approved by the Superior Court anc approval of a Minor's Compromise for the distribution of funds to the minor Powers' c EXHIBIT: 1. Resolution No. 96 "385 F I!, "tf T ee 0. 1 2 3 4 5 6 7 8 9 10 11 Do, m> SulF LY->g $42 ?j;$z ODL 2Sjn $25 - &E& am8 ow: $055 YlLU zwmo 002 i=om UOJ ,. 0 12 13 14 15 16 17 U 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 96-385 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING DEPOSIT OF CALIFORNIA AFFILIATED RISK MANAGEMENT AUTHORITIES (CARMA) FOR SE-TTLEMENT OF THE LAWSUIT ENTITLED POWERS V. CITY OF CARLSBAD, CASE NO. N68145 WHEREAS, the Powers family suffered injuries in a collision with ITS SELF-INSURED RETENTION AMOUNT TO Carlsbad police vehicle on December 18, 1994; and WHEREAS, the Powers family filed a lawsuit in San Diego Super entitled Powers v. Citv of Carlsbad, Gannon Maszk, Case No. N68145; and WHEREAS, the parties to this lawsuit dispute liability; and WHEREAS, the parties wish to avoid a protracted trial, the haza litigation, to obtain certainty in their affairs, and avoid future litigation and futurf appeals; and WHEREAS, the matter has been mediated before the San Diegc Court, retired judges and justices of the court, and court of appeals; and WHEREAS, the parties have agreed to settle their disputes ona all and forever, NOW, THEREFORE, BE IT RESOLVED by the City Council oft Carlsbad, California, as follows: I. That the above recitations are true and correct. 2. That the Financial Management Director is authorized to der City's self-insured retention amount of $500,000 in accordance with its agree CARMA making appropriate deductions for costs and attorneys fees thus far in defense of the case. 3. That the Financial Management Director is further directed t CARMA to obtain all necessary and proper settlements and releases by plair satisfaction of the City Attorney. C’ dY r 1 2 3 4 5 6 7 8 9 10 11 0, $E& 2:g% cog sO4S ace: 0002 <;sz ?3gl?0 “uz0- 00s 582 00 a> SUE 622 12 13 14 15 16 17 me 80 i PASSED, APPROVED AND ADOPTED at a Regular Meeting of 1 Council of the City of Carlsbad on the 19th day of NOVEMBER , 1996, following vote, to wit: AYES: Council Members Lewis, Nygaard, Kulchin, Finnils NOES: None ABSENT: None ATTEST: NZ, City Clerk stant City Clerk 18 19 20 21 22 23 24 25 26 27 28 I I P 2 I’ ? m 0 December 16, 1996 TO: City Clerk FROM: City Attorney POWERS V. CITY As we discussed on Thursday, December 12, ”196, attached to this memorandum is the original of the “Mutual Release and Settlement of All Claims” executed by Mayor Lewis and Officer Maszk on December 9, 1996. Please make it part of the appropriate file and send me a certified copy of it. I will then transmit it to attorney Butz for his files and to share with plaintiffs. I appreciate your cooperation and courtesy in this regard. 0 RONALD R. BALL City Attorney rmh attachment ?-Q +*PA Y- /;v /G/d c Y b* I 0 m MUTUU RELEASE AND SETTLEMENT OF ALL CLAIMS RECITALS A. On December 18, 1994, plaintiff and cross-defendant JAMES POWERS (herein I1RELEASEEs@) was involved in a serious moto vehicle accident when the car he was driving collided with a patrol car operated by defendant/cross-complainant GANNON H. MASZX while in the course and scope of his employment with defendant/cross-defendant CITY OF CARLSBAD (collectively @IRELEASOR") . B. On June 23, 1995, RELEASEE, his wife REBECCA POWERS, and three children, MARK POWERS, KELLY POWERS and ALICIA POWERS (collectively "the POWERSs1), all occupants of RELEASEE'S vehicl filed an action against RELEASOR in San Diego Superior Court as case number N68145. In this action, the POWERS alleged causes action for negligence, violation of Vehicle Code provisions, violation of Government Code provisions, dangerous condition of public property, and negligent infliction of emotional distress complaint against RELEASEE for total indemnity, partial indemni and declaratory relief (herein the v'CROSS-COMPLAINT1') on the basis that the POWERS' damages were, in whole or in part, attributable to the contributory negligence (herein "the CONTRIBUTORY NEGLIGENCE1') of RELEASEE. RELEASEE has denied all material allegations of the CROSS-COMPLAINT. In response, on or about August 4, 1995, RELEASOR filed a cross C. It is intended hereto to effect a final resolution an settlement on any and all existing disputes and claims between the RELEASOR and RELEASEE (collectively, "the PARTIES"), regardless of their nature or basis, which arose, may have arisen, or hereinafter can arise by reason of any matter, cause of action, or thing whatsoever which occurred prior to the date of this agreement, or may occur in the future related to the CONTRIBUTORY NEGLIGENCE, including, but not limited to, all of those claims which were or could have been the subject of the arise from the facts, circumstances, conduct, contractual arrangements, handling, or occurrences which were or could have been the subject of said CROSS-COMPLAINT arising from the CONTRIBUTORY NEGLIGENCE. CROSS-COMPLAINT and any future claims or damages which might D. For purposes of this agreement, the terms PARTY and PARTIES are intended to and shall be interpreted to include executors, administrators, assigns, parent and subsidiary organizations, partners, affiliates, agents, servants, stockholders, employees, predecessors and successors in interes E. It is further understood and intended that this agreement constitutes a compromise of disputed claims and is no H:\TEMP\SYY\BC203.REL -1- I' 1 a m to be construed as an admission of liability on the part of the PARTIES referred to herein. AGREEWEN!I! THEREFORE, RELEASOR hereby agrees and acknowledges as follows : FOR AND IN CONSIDERATION OF THE SETTLEMENT OF VISTA SUPER1 COURT CASE NUMBER N68145, which settlement is hereby acknowledg by RELEASOR, and in consideration of the mutual releases grante by each of the PARTIES to the other; 1. Each of the PARTIES, on behalf of himself, his heirs, executors, administrators, agents, assigns, parent and subsidia organizations, partners, affiliates, agents, servants, stockholders, employees, predecessors and successors, hereby settles with, releases and forever discharges any and all claim demands, obligations, or causes of action of whatever kind or nature, known or unknown, which that PARTY now has or may hereafter have, arising from or in any way related to the CONTRIBUTORY NEGLIGENCE, including any and all claims which wer or could have been asserted as part of the CROSS-COMPLAINT, and any future claims which might arise from the facts, circumstances, conduct, contractual arrangements, or occurrence of the CONTRIBUTORY NEGLIGENCE. 2. It is expressly understood by RELEASOR that settlemen of Vista Superior Court Case Number N68145 is the total settlement to be made by RELEASEE in settlement of this matter, and that no monies will be paid by RELEASEE as a result of the CONTRIBUTORY NEGLIGENCE, or the CROSS-COMPLAINT. The PARTIES shall each bear their own attorney's fees and costs in connecti with the CROSS-COMPLAINT. In further consideration for the above-mentioned sums paid by RELEASEE, and in settlement of any and all claims or potenti claims of RELEASOR, RELEASOR agrees, represents, and warrants a follows: 3. RELEASOR and RELEASEE understand, acknowledge, and agree that the above-mentioned Recitals are part of this agreement, and are hereby incorporated by reference as though fully set forth. 4. RELEASOR understands that any and all potential liability of RELEASEE arising out of the CONTRIBUTORY NEGLIGENC or the CROSS-COMPLAINT is disputed by RELEASEE, and this releas constitutes the compromise of a disputed claim and shall not be construed as an admission of liability. H:\TEMP\SYY\BC203.REL -2- I. I m m 5. RELEASOR understands, acknowledges, and warrants that this is a full and final release applying to all known, unknown and unanticipated injuries or damages. RELEASOR expressly and intentionally waives all rights and benefits which he now has 0: in the future may have under the terms of Section 1542 of the Civil Code of the State of California, which 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. 6. RELEASOR warrants and represents to RELEASEE that non of the claims herein released have been, or shall be, assigned any person or entity. 7. RELEASOR represents, covenants, and agrees that he wi forever refrain from initiating, prosecuting, maintaining, proceeding on, assisting, or providing assistance or advising t be commenced against RELEASEE any action, proceeding, investigation, review, litigation, or proceeding by any State, local or federal agency, body, tribunal, or private regulatory body, which arises out of, or may be based upon, related or connected with any and all matters released herein. 8, RELEASOR and RELEASEE agree that this release shall b governed by the laws of the State of California, and any questions arising herein shall be construed or determined according to such law. Venue in any action arising out of this release shall be in the County of San Diego. 9. RELEASOR and RELEASEE represent and warrant that this release contains the entire agreement between the parties heret The terms of this release are contractual and not a mere recita 10. If any provision or portion of this release is held t be illegal or invalid, by a court of competent jurisdiction, sa provisions shall be deemed to be severed and deleted, and the remainder of this release shall continue to be valid and enforceable. 11. RELEASOR and RELEASEE acknowledge that they have been represented by legal counsel, and that they have freely consent to the terms and conditions of this release, which has not involved coercion, undue influence, or economic pressure. 12. RELEASOR agrees to execute and deliver to RELEASEE su additional documents and do all actions necessary, convenient, desirable, as may be reasonably required to fully carry out and effect the intent of this release. RELEASOR shall cause the H:\TEMP\SYY\BC203.REL -3- ,. I m m Complaint in Vista Superior Court case number N68145 to be dismissed with prejudice as to RELEASEE, JAMES POWERS. 13. In any action to enforce any provision or intent of this release and/or for breach of any provision or intent of th agreement, the prevailing party shall be entitled to recover fees. reasonable costs in such action, including reasonable attorneys 14. This entire agreement, and each provision hereof, sha be deemed to have been drafted jointly by the PARTIES. 15. This agreement may be executed in more than one part the parties hereto, each of which shall be deemed an original, and which together shall constitute one and the same agreement. 16. RELEASOR and RELEASEE acknowledge that they have read and understand each and every provision of this release, and by placing their signatures at the end of this release, represent that they have voluntarily assumed the obligations contained herein, and intentionally waived all of the rights stated herei of their own free will. DATED: 12-446 > GANNON H. MASZK DATED: 12/9/96 APPROVED +S TO FORM: DATED: 1 [hl qL n B" & DUNN Y . Butz, Attorneys f MASZK and CITY OF CARLSBAD H:\TEMP\SYY\BCZO3.REL -4- ,- r m 9 RONALD R. BALL CITY AFORNEY D. RICHARD RUDOLF ASSISTANT CITY ATTORNEY JANE MOBALDI DEPUTY CITY ATTORNEY ClTY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1989 (619) 434-2891 FAX: (619) 434-8367 4 December 3, 1996 Douglas M. Butz, Esq. Butz, Lucas, & Dunn 101 West Broadway San Diego, California 92101-3881 RE: POWERS V. CITY OF CARLSBAD , ETAL. Dear Mr. Butz: Thank you for your letter of November 27, 1996 enclosing an original of the “Mutual Release and Settlement of All Claims” to be executed by Officer Mask and the City of Carlsbad, and enclosing a copy of the settlement and release executed by the minors guardian ad liter in this case. I am sending a copy of your letter to Officer Maszk and by copy of this letter respectfully requesting him to come by my office to execute this release. I will then arrange for the Mayor‘s signature. I think all originals should be kept on file in the City Clerks office and she can send copies to all of the patties. When you are in a position to do so, please send me the original settlement agreeme for the minors and the original settlement agreement executed by Mr. and Mrs. Powei I appreciate your prompt attention to these matters. Very truly yours, LQL RONALD R. BALL City Attorney rmh c: Officer Maszk ( ith attachment) City Clerk Y I 8 0 e RONALD R. BALL CITY ATTORNEY D. RICHARD RUDOLF ASSISTANT CITY ATTORNEY JANE MOBALDI DEPUTY CITY ATTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1989 (619) 434-2891 FAX: (619) 434-8367 6 January 8,1997 Douglas M. Butz, Esq. Butz, Lucas, & Dunn 101 West Broadway San Diego, California 92101-3881 RE: POWERS V. CIlY OF CARLSBAD , ET AL. Dear Mr. Butz: Thank you for your letter of January 6, 1997 enclosing the settlement documents for this case. By copy of this letter to the City Clerk, I am sending her the originals of thc Settlement Agreements for safe keeping. It was a pleasure working with you on this case and I look ‘Forward to a continued association in 1997. I appreciate your cooperation and courtesy in this regard. uly yours, LaL RONALD R. BALL City Attorney rm h c: City Clerk (originals) J Risk Manager (copies) 0 0 SETTLEMENT AGREEMXNT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made 2 entered into this H'day of NU, If- , 1996, by and between: "Plaintiffs" MarkPowas, a minor, by and through his Guardian Ad Litem, Kc Powers, a minor, by and through her Guardian Ad Litem and Ali Powers, a minor, by and through her Guardian Ad Litem "Defendants" City of Carlsbad and Gannon Mas& "Pooling Authority" CARMA Recitals A. PlaintiEs filed a complziint against the D&nd&s LI tk Superior Court, Count4 San Diego, State of California, Court Action No. N68 145, (the "Complaint"), which Complaint ar( out of certain alleged negligent acts or omissions by Defendants. In the Complaint, Plaintiffs sou, to recover monetary damages as a result of that certain occurrence on or about December 18, 1s at the intdon of Carlsbad Village Drive and Pontiac Drive, Carlsbad, California, which resul in physical injuries and personal injuries to Plaintiffs. B. The parties desire to enter into this Settlement Agreement in order to provide certain payments in full settlement and discharge of all claims which have, or might be made, reason of the incident described in Recital A above, upon the terms and conditions set forth belc Agreement The parties agree as follows: 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Plaintif?% her completely release and forever discharge Defendants and Pooling Authority fiom any and all p gresect or future claims, demands, oblisations, actions, causes of action, wrongful death clai rights, damages, costs, losses of services, expenses and compensation of any nature whatsoel whether based on a tort, contract or other theory of recovery, which the Plaintiffs now have which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow of, or which are the subject of the Complaint (and all related pleadings) including, with limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiffs any hture wrongful death claim of PlaintBs' representatives or heirs, which have resulted or I result from the alleged acts or omissions of the Defendants. Further, Plaintiffs are waiving any all rights they may have against the owners and operators of the unidentified white pick-up tr involved in the alleged incident. / 1 I. 0 0 1.2 This release and discharge shall also apply to Defendants' and Po01 Authority's past, present and fbture officers, directors, stockholders, attorneys, agents, serva r-ves, employees, subsidiaries, afiiliates, partners, predecessors and successors in interc and assigns and all other persons, hns or corporations with whom any of the former have been, now, or may hereafter be affiliated. 1.3 This release, on the part of the Plaintiffs, shall be a Illy binding and compl settlement among the Plaintiffs, the Defendants and the Pooling Authority, and their heirs, assil and successors. The parties acknowledge that this Settlement Agreement and Releasc contingent upon the court's approval of the Minors' Compromise, 1.4 The Plaintiffs acknowledge and agree that the release and discharge set fc above is a general release. PlaintifEs expressly waive and assume the risk of any and all claims damages which exist as of tis date, but of which the PhiaiiEs do cot hcw or suspect to ex whether through ignorance, oversight, error, neghgence, or otherwise, and which, if known, wo materially sect Plaintiffs' decision to enter into this Settlement Agreement. The Plaintiffs fbrt agree that Plaintiffs have accepted payment of the sums specified herein as a complete compron of matters involving disputed issues of law and fact. Plaintiffs assume the risk that the facts or 1 is a compromise of a doubtfbl and disputed claim, and the payments are not to be construed as admission of liability on the part of the Defendants, by whom liability is expressly denied. maybe other than Plaintas believe. It is understood and agreed to by the parties that this settlem 1.5 The releasor(s) hereby waives any and all rights based upon the provision! California Civil Code Section 1542 which reads as follows: "Ageneral 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 to him, must have materially affected his settlement with the debtor." 1.6 Plaintiffs acknowledge and agree that all outstanding medical liens, whet presently asserted or not yet asserted, as a result of the injuries and damages claimed by Plaintiffs are their sole responsibility and they will and hereby do assume sole and fbll responsibj for paymenthatisfaction of same; either with a portion of the proceeds of the settlement sums forth herein, through other independent financial sources, and/or through other methods compromise or reduction, which shall not, in any manner, involve or relate to these sett defendants. 2.0 Payments In consideration of the release set forth above, the Pooling Authority on behalf of Defendants agrees to pay to the individual(s) named below ("Payee(s)") the sums outlined in Section 2 below: 2 I- o 0 2.1 Payments due at the time of settlement as follows: Attorneys' Fees - Litigation Costs $5 1 1,375 Medical Payments $190.000 TOTAL $701,375 2.2 Periodic payments made according to the schedule as follows (the "Perio Payments"): PERIODIC PAYRlENTS PAYABLE TO MARK POWERS THROUGH HIS NATURAL PARENT AND GUARDIAN (DOB: 12/24/1983) Monthlv Pavments Certain with Escalation: Commencing on January 9, iY97, the sum of $ i,200 per mczth, ixreaskg 5y 3% on hnuq 1998 and each January 9 thereafter, payable on the 9th day of each month, until January 9, 2( (109 Guaranteed Monthly Payments) Monthlv Pavments Certain and Life with Escalation: Commencing on February 9,2006, the sum of $4,000 per month, increasing by 3% on February 9,2007 and each February 9 thereafter, payable on the day of each month, until the death of Mark Powers, (male, birth date December 24, 1983), or u January 9,2036, whichever period is longer (360 Guaranteed Monthly Payments) LumD Sum - Multiple Payments Deferred lump sums payable on the following basis: Date of Payment Amount 12/24/2001 (Age 18) $20,000 12/24/2002 (Age 19) $2 1,000 12/24/2003 (Age 20) $22,000 12//24/2004 (Age 21) $23,000 12/24/2005 (Age 22) $24,000 12/24/2006 (Age 23) $25,000 12/24/2008 (Age 25) $35,000 12/24/2013 (Age 30) $45,000 12/24/2018 (Age 35) $65,000 12/24/2023 (Age 40) $85,000 Monthlv Payments Life Contingent Only: Commencing on December 9,2026, the sum of $2,945.01 per month, payable on the 9th day of c month, until the death of Mark Powers, (male, birth date December 24, 1983), or until (264 Life Contingent Monthly Payments Only) November 9,2048, whichever period is the shorter 3 ,' 0 0 PAYABLE TO KELLY POWERS. DOB: 09/22/1981 LumD Sum - MultiDle Pavments Deferred lump sums payable on the following basis: 09/22/1999 (Age 18) $5,857.39 09/22/2000 (Age 19) $5,857.39 09/22/2001 (Age 20) $5,857.39 09/22/2002 (Age 21) $5,857.39 09/22/2003 (Age 22) $5,857.39 PAYABLE TO ALICIA POWERS. DOB: 08/21/1988: LumD Sum - Multide Pavments Deferred lump sums payable on the following basis: Date of Payment Amount 08/21/2006 (Age 18) $9,259.64 08/21/2007 (Age 19) $9,259.64 08/21/2008 (Age 20) $9,259.64 08/2 1/20 1 0 (Age 22) $9,259.64 All sums set forth herein constitute damages on account of personal injuries and sickness, within meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. Date of Pavment Amount 08/21/2009 (Age 21) $9,259.64 3.0 Plaintiffs' Right to Payments Plaintiffs acknowledge that the Periodic Payments cannot be accelerated, defen increased or decreased by the Plaintiffs; nor shall the Plaintiffs have the power to sell, mortgi encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise 4.0 Plaintiffs' Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of Settlement Agreement shall be made to such person or entity as shall be designated in writin$ Plaintiffs to the Pooling Authority or the Pooling Authority's Assignee. If no person or entity i designated by Plaintiffs, or if'the person designated is not living at the time of the Payee's de such payments shall be made to the estate of the Payee. No such designation, nor any revoca therat shall be effective unless it is in writing and delivered to the Pooling Authority or the Po0 Authorit$s Assignee. The designation must be in a form acceptable to the Pooling Authority 01 Pooling Authority's Assignee before such payments are made. 4 5- e 0 5.0 Consent to Qualified Assignment 5.1 Plaintiffs acknowledge and agree that the Defendants and/or the Pool Authority may make a "qualified assignment", within the meaning of Section 130(c) of the Inter Revenue Code of 1986, as amended, of the Defendants' and/or the Pooling Authority's liabiliQ make the Periodic Payments set forth in Section 2.2 to BHG Structured Settlements, Ir ("Assignee"). The Assignee's obligation for payment of the Periodic Payments shall be no grea than that of Defendants and/or the Pooling Authority (whether by judgment or agreeme immediately preceding the assignment of the Periodic Payments obligation. 5.2 Any such assignment, if made, shall be accepted by the Plaintiffs without ri of rejection md shall completely release and discharge the Defendsts and ths Pookg A~tho from the Periodic Payments obligation assigned to the Assignee. The Plaintiffs recognize that the event of such an assignment, the Assignee shall be the sole obligor with respect to the Peric Payments obligation, and that all other releases with respect to the Periodic Payments obligation 1 pertain to the liability of the Defendants and the Pooling Authority shall thereupon become fi irrevocable and absolute. 6.0 Right to Purchase an Annuity The Defendants and/or the Pooling Authority, itself or through its Assignee, reser right to fhd the 1iab;litY to make the Periodic Payments through the purchase of an annuity poliq Berkshire Hathaway Life Insurance Company. The Defendants, the Pooling Authority or the As shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defend= Pooling Authority or the Assignee may have Berkshire Hathaway Life Insurance Company mail paJ directly to the Payee(s). The Plaintiffs shall be responsible for maintaining a current mailing addr Payee(s) with Berkshire Hathaway Life Insurance Company. 7.0 Discharge of Obligation The obligation of the Defendants, the Pooling Authority and/or Assignee to mak Periodic Payment shail be discharged upon the mailing of a valid check in the amount of such pl to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement. 8.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of i couflsel in connection with this Settlement Agreement, the matters and documents referred to here all related matters. 5 I* e 0 9.0 Delivery of Dismissal with Prejudice Concurrently with the execution of this Settlement Agreement, counsel for the Pla shall deliver to counsel for the Defendants or counsel for the Pooling Authority an executed Dismissa Prejudice of the Complaint. Plaintifls hereby authorize counsel for the Defendants andor counsel f Pooling Authority to file said Dismissal with the Court and enter it as a matter of record. 10.0 Representation of Comprehension of Document In enking into this Settlement Agreement the Plaintiffs represent that Plaintiffs have upon the advice of their attorneys, who are the attorneys of their own choice, concerning the leg; inwm +a consequences of this Settlement Agreement; that the terms of this Settlement Agreemenl been completely read and explained to Piaintss by their attorneys; and that the terms ofthis Settlc Agreement are fully understood and voluntarily accepted by Plaintiffs. 1 1 .O Warranty of Capacity to Execute Agreement Plaintiffs represent and warrant that no other person or entity has, or has had, any ir in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement, ( as otherwise set forth herein; that Plaintiffs have the sole right and exclusive authority to execu Settlement Agreement and receive the sums specified in it; and that Plaintiffs have not sold, ass transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of referred to in this Settlement Agreement. 12.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with th of the State of California. For the protection of the undersigned Plaintiffs, California law requires the following to appc this form: "IT IS UNLAWFL. TO (A) PRESENT OR CAUSE TO BE PRESENTED ANY FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS UNDER A CONTRACT ORINSURANCE AND (B) PREPARE, "E OR SUBSCRIBE ANY WRITING WIT€€ INTENT TO PRESENT OR USE THE SAME, AND TO ALLOW IT TO BE PRESENTED OR USED IN SUPPORT OF ANY SUCH CLAIM. ANY PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS PUNZSHABLE BY IMPRISONMENT IN THE STATE PRISON OR BY FINE NOT EXCEEDING ONE THOUSAND DOLLARS ($1,000) OR BOTH." 6 I' 1 e 0 13.0 Additional Documents All parties agree to cooperate fblly and execute any and all supplementary documen to take all additional actions which may be necessary or appropriate to give full force and effect basic terms and intent of this Settlement Agreement. 14.0 Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Plaintiff Defendants and the Pooling Authority with regard to the matters set forth in it and shall be binding and enure to the benefits of the executors, administrators, personal representatives, heirs, successo assigns of each. 1 5.0 Effectiveness This Settlement Agreement shall become effective immediately following execut: each of the parties. Plaintiffs: Mark Powers, Kelly Powers and Alicia Powe minors, by and ough their Guardian Ad Lil q-+= B: Date: 9 /- 7 Approved as to form and content: Plaintiffs' Attorney: George Fleming By: LE f4 Date: )1-)7- 76 Pooling Authority: CARMA \ BY * * €XJ.-Ae, n- \ ( Title; &,!+ U LLlL+!A :pt/ Date: I&- 3- SL 7 . * 0 SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release Of All Clai: (hereinafter referred to as "the Agreement") is entered into a effective this 26th day of November, 1996 by and among t following parties: (1) JAMES POWERS (hereinafter referred to as "POWERS"); a (2) GANNON H. MASZK and CITY OF CARLSBAD (hereinaft collectively referred as to "CARLSBAD") . RECITALS This Settlement Agreement and General Release of All Claims made with reference to the following facts: 1. On June 23, 1995, POWERS filed a Complaint for damages the San Diego Superior Court, Case No. N68145, entitled Powers, al. vs. City of Carlsbad, et al. Thereafter, POWERS filed a fir amended complaint for damages. Said first amended complaint se forth causes of action for negligence, violation of Vehicle Cc provisions, violation of Government Code provisions, dangerc condition of public property, and negligent infliction of emotion distress. In substance, POWERS alleged he sustained injuries a damages as a result of motor vehicle accident occurring on Decemk 18, 1994 at the intersection of Carlsbad Village Drive and Ponti Drive in the City of Carlsbad. In making this agreement no party is admitting the sufficier of any claims , allegations, assertions, contentions or positic of any other party, or the sufficiency of any defenses to any SL claims, allegations, assertions, contentions or positions. 'I parties to this agreement have nevertheless agreed to enter ir this agreement to avoid further expense, inconvenience, E distraction of litigation, and to be free of further liability fl any claims by POWERS, whether or not asserted in his complaint in any successor or predecessor complaints in this action. 1 of 7 * e AGREEMENT NOW, THEREFORE, in consideration of the mutual covenant: promises, and warranties set forth herein, the parties agree l follows : 1. The aforesaid Recitals shall be a part of the Agreemen 2. POWERS agrees to execute a dismissal with prejudice Case No. N68145 entitled Powers, et al. vs. Citv of Carlsbad, al. CARLSBAD agrees to execute a dismissal with prejudice of i cross-complaint for indemnification and contribution again POWERS. 3. It is hereby agreed by and among the parties that t complaint filed in Case No. N68145 , as well as any success complaints, and any claims, damages, or causes of action arisi out of the disputed matters or the subject matter thereof, shall settled and compromised as between the parties, subject to t terms and conditions contained in this agreement. 4. All parties shall bear their own attorneys' or 0th professional fees and associated litigation costs incurred in, in any way related to, POWERS' complaint for damages or the defen thereto, as well as any attorneys' or other professional fees a costs incurred in the negotiation, preparation, and closing of th agreement. 5. The parties have agreed to settle the disputed matt between them in consideration for the execution of this settleme agreement and release, performance of the promises contain therein, and in consideration of the payment of the sum of EIGHTE THOUSAND FIVE HUNDRED DOLLARS ($18,500.00) to POWERS. 6. In exchange for the above-referenced payment of the E of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS ($18,500.00), POWERS dc hereby, and for his heirs, executors, administrators, successol and assigns, completely releases, acquits, and forever discharc CARLSBAD and its officers, employees, agents, council membel successors, assigns, attorneys, and insurers from any and E claims, actions, rights, damages, expenses, compensations, E 2 of 7 , 0 0 causes of action of any and every kind, nature, and charactc whatsoever, known or unknown, which POWERS may now have, has evc had, or may have in the future against CARLSBAD including, but nl limited to, any and all claims whether based on negligencl violations of Vehicle Code provisions, violations of Governme: Code provisions, dangerous condition of public property, neglige infliction of emotional distress, or any other theory of recover including, but not limited to, any and all claims arising out the subject matter of Case No. N68145, filed in the San Die Superior Court, entitled Powers, et al. vs. City of Carlsbad, al. 7. It is the intention of the parties that POWERS sha release any and all claims he may have against CARLSBAD. It is t further intention of the parties that POWERS shall dismiss a release any and all claims he may have against CARLSBAD wheth based upon direct liability, derivative liability, imput liability, or joint and several liability arising from t liability of co-workers, agents, or employees of CARLSBAD. 8. It is the intention of the parties that POWERS sha release, waive and discharge any and all claims he may have again the owners and operators of a white pick-up truck as part of th release of all claims. 9. It is understood and agreed that POWERS shall be sole responsible for the satisfaction of any lien claims arising out the subject accident and any medical care provided therewith. 1 parties agree that it is the sole and exclusive responsibility POWERS to satisfy any present or future governmental or privz liens or rights of reimbursement that may be asserted in connecti with expenses of his medical care, and POWERS hereby agrees fully defend, indennlfy, and hold harmless CARLSBAD from any sc liability. 10. Waiver of Civil Code Section 1542 The parties further acknowledge that they may hereaft discover facts different from or in addition to those which tk now know or believe to be true with respect to any release here made, and agree that every release herein made is now and wj remain effective, notwithstanding such different or additior facts or the discovery thereof. The parties hereto expressly waj and relinquish any and all rights and benefits conferred upon tl: 3 of 7 0 0 by the provisions of section 1542 of the California civil Code which are 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. The parties acknowledge that the foregoing waiver of t' provisions of section 1542 of the California Civil Code is part the consideration hereunder. The parties expressly consent th the mutual general release set forth herein shall be given fu force and effect in accordance with each and all of their expre terms and provisions, including those terms and provisions relati, to unknown and unsuspected claims, .demands, and causes of actio] if any, to the same effect as those terms and provisions relati! to any other claims, demands, and causes of action hereinabo. specified. Each party further agrees and covenants that if the facts wi. respect to which this Agreement is executed are found to : different from the facts now believed to be true, such par. expressly accepts and assumes the risk of such possible differen effective notwithstanding such difference in facts. in facts and agrees that this document shall be and remain ful 11. Representations and Warranties Each of the parties to this Agreement represents and warran to the other that each of them has the full power, capacity, a authority to enter into this Agreement, that neither of them h sold, assigned or in any manner transferred any claims which eith of them ever had against the other to any third party, and that other releases or settlements are necessary from any other pers or entity to release and discharge completely the other parti from the claims specified herein. Each party agrees to indemnif defend and hold harmless the other party from and against any a all claims which may be asserted against such other party, bas upon, arising out of, or in connection with a breach of t representations and warranties made herein. 4 of 7 I I 0 I) 12. Execution Not an Admission This Agreement is the result of a settlement and compromise ( disputed matters as herein set forth. By entering into th: Agreement, no party hereto admits that the claims of the other a1 valid or more meritorious, and each party hereto agrees that tl terms of this Agreement shall never be used, referred to, t considered, as an admission of liability of such claims. 13. Leqal Representation Each party acknowledges that it has received the advice independent legal counsel prior to the execution of this Agreeme and the opportunity to receive an explanation from legal counsj regarding the legal nature and effect of the Agreement, and ea party understands the terms and provisions of this Agreement a its nature and effect. Each party further represents that it entering into this Agreement freely and voluntarily, relying sole upon the advice of its own counsel, and not relying on t representations of any other party or of the counsel of any 0th party. Each party expressly agrees that this Agreement shall n Agreement. be construed or interpreted for or against the party drafting t 14. Waiver No breach of any provision hereof can be waived except writing by the party against whom enforcement of the waiver sought. Waiver of one breach of any provision hereof shall not deemed to be a waiver of any other breach of the same or any 0th provision hereof. Failure on the part of any party hereto complain of any act or failure to act of any other party or declare any other party in default hereunder, irrespective of h long such failure continues, shall not constitute a waiver of t rights of such party hereunder. 15. Countergarts This Agreement may be executed in counterparts in original by way of facsimile signature. When each party has signed E delivered such counterpart, each counterpart shall be deemed original, and, when taken together with other signed counterpart shall constitute an agreement which shall be binding upon 2 effective as to all parties. No counterpart shall be effectj 5 of 7 .' 0 e until all parties hereto have executed and exchanged an execute counterpart hereof. 16, Successors and Assiqns This Agreement may not be assigned by any party without tk prior written consent of the other parties. Subject to ti foregoing provisions, this Agreement shall inure to the benefit c and be binding upon the parties hereto and their respective heir: successors and assigns. 17. Applicable Law and Venue This Agreement is made, executed and entered into and shall 1 governed by the laws of the State of California, and any proceedil involving this Agreement shall be brought in San Diego County. 18. Inteuration This Agreement contains the entire agreement and understandir concerning the subject matter herein and supersedes and replact any prior negotiations and agreements between the parties heretc or any of them, whether written or oral. 19. Attornevs' Fees If any party breaches any obligation under this Agreement, tl non-breaching party shall be entitled to reasonable expense: attorneys' fees, and costs incurred in any action taken, with ( without litigation, to enforce the terms of the Agreement, or . remedy or compensate for such breach. 20. Severabilitv In the event that any one or more of the provisions of th. Agreement shall be declared invalid, illegal, or unenforceable any respect, the validity, legality and enforceability of t: remaining provisions contained herein shall not be in any wl affected or impaired thereby. 6 of 7 ..' 0 * 21. Modifications Any alterations, changes or modifications of or to thi Agreement, in order to be effective, shall be made by writtc instrument or interlineation hereon, and in each such instanc shall be duly signed on behalf of each party hereto. 22. The parties to this Agreement, and each of then acknowledge that (1) this Agreement and its reduction to fin; written form is the result of extensive good faith negotiatior between the parties through their respective counsel; (2) saj counsel have carefully reviewed and examined this Agreement befol execution by said parties, or any of them; and (3) any statute c rule of construction and ambiguities are to be resolved against tk drafting party shall not be employed in the interpretation of thi Agreement. IN WITNESS WHEREOF, JAMES POWERS has executed this Agreemer as of the day and year first written above. DATED: // 2 c. 196 [ APPROVED AS TO FORM: DATED: lfi1/v6 G7 GEOR E E. FLEMING Attorney for JAMES POWERS 7 of 7 -, f . 0 e SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release Of All Clail (hereinafter referred to as "the Agreement") is entered into ai effective this sL day of November, 1996 by and among tl following parties: (1) REBBECA POWERS (hereinafter referred to as "POWERS") ; a (2) GANNON H. MASZK and CITY OF CARLSBAD (hereinaft collectively referred as to "CARLSBAD") . RECITALS This Settlement Agreement and General Release of All Claims made with reference to the following facts: 1. On June 23, 1995, POWERS filed a Complaint for damages the San Diego Superior Court, Case No. N68145, entitled Powers, al. vs. City of Carlsbad, et al. Thereafter, POWERS filed a fir amended complaint for damages. Said first amended complaint se forth causes of action for negligence, violation of Vehicle Co provisions, violation of Government Code provisions, danger0 condition of public property, and negligent infliction of emotion distress. In substance, POWERS alleged she sustained injuries a damages as a result of motor vehicle accident occurring on Decemh 18, 1994 at the intersection of Carlsbad Village Drive and Ponti Drive in the City of Carlsbad. In making this agreement no party is admitting the sufficier of any claims , allegations, assertions, contentions or positic of any other party, or the sufficiency of any defenses to any SL claims, allegations, assertions, contentions or positions. 1: parties to this agreement have nevertheless agreed to enter ir this agreement to avoid further expense, inconvenience, i distraction of litigation, and to be free of further liability fl any claims by POWERS, whether or not asserted in her complaint in any successor or predecessor complaints in this action. 1 of 7 7 >. e e AGREEMENT NOW, THEREFORE, in consideration of the mutual covenant promises, and warranties set forth herein, the parties agree follows : 1. The aforesaid Recitals shall be a part of the Agreemen 2. POWERS agrees to execute a dismissal with prejudice Case No. N68145 entitled Powers, et al. vs. City of Carlsbad, al. CARLSBAD agrees to execute a dismissal with prejudice of i cross-complaint for indemnification and contribution again POWERS. 3. It is hereby agreed by and among the parties that t complaint filed in Case No. N68145 , as well as any success complaints, and any claims, damages, or causes of action arisi out of the disputed matters or the subject matter thereof, shall settled and compromised as between the parties, subject to t terms and conditions contained in this agreement. 4. All parties shall bear their own attorneys' or 0th professional fees and associated litigation costs incurred in, in any way related to, POWERS' complaint for damages or the defen thereto, as well as any attorneys' or other professional fees a costs incurred in the negotiation, preparation, and closing of th agreement. 5. The parties have agreed to settle the disputed matt between them in consideration for the execution of this settleme agreement and release, performance of the promises contair therein, and in consideration of the payment of the sum of EIGHTE THOUSAND FIVE HUNDRED DOLLARS ($18,500.00) to POWERS. 6. In exchange for the above-referenced payment of the : of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS ($18,500.00), POWERS dc hereby, and for her heirs, executors, administrators, SUCC~SSO~ and assigns, completely releases, acquits, and forever discharc CARLSBAD and its officers, employees, agents, Council membe~ Successorsl assigns, attorneys, and insurers from any and 2 claims, actions, rights, damages, expenses, compensations, 2 2 of 7 .., v I. e 0 causes of action of any and every kind, nature, and charactc whatsoever, known or unknown, which POWERS may now have, has eve had, or may have in the future against CARLSBAD including, but nc limited to, any and all claims whether based on negligencc violations of Vehicle Code provisions, violations of Governme1 Code provisions, dangerous condition of public property, neglige] infliction of emotional distress, or any other theory of recover. including, but not limited to, any and all claims arising out l the subject matter of Case No. N68145, filed in the San Die' Superior Court, entitled Powers, et al. vs. City of Carlsbad, al. 7. It is the intention of the parties that POWERS sha. release any and all claims she may have against CARLSBAD. It : the further intention of the parties that POWERS shall dismiss a! release any and all claims she may have against CARLSBAD whethl based upon direct liability, derivative liability, imput, liability, or joint and several liability arising from t. liability of co-workers, agents, or employees of CARLSBAD. 8. It is the intention of the parties that POWERS sha release, waive and discharge any and all claims she may ha against the owners and operators of a white pick-up truck as pa of this release of all claims. 9. It is understood and agreed that POWERS shall be sole responsible for the satisfaction of any lien claims arising out l the subject accident and any medical care provided therewith. T parties agree that it is the sole and exclusive responsibility POWERS to satisfy any present or future governmental or priva liens or rights of reimbursement that may be asserted in connecti with expenses of her medical care, and POWERS hereby agrees fully defend, indemnify, and hold harmless CARLSBAD from any su liability. 10. Waiver of Civil Code Section 1542 The parties further acknowledge that they may hereaft discover facts different from or in addition to those which th made, and agree that every release herein made is now and wi remain effective, notwithstanding such different or addition facts or the discovery thereof. The parties hereto expressly wai and relinquish any and all rights and benefits conferred upon th now know or believe to be true with respect to any release here 3 of 7 I. 0 e by the provisions of section 1542 of the California Civil Codc which are 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. The parties acknowledge that the foregoing waiver of tl provisions of section 1542 of the California Civil Code is part ( the consideration hereunder. The parties expressly consent th; the mutual general release set forth herein shall be given fu: force and effect in accordance with each and all of their expre: terms and provisions, including those terms and provisions relatir to unknown and unsuspected claims, demands, and causes of actior if any, to the same effect as those terms and provisions relatir to any other claims, demands, and causes of action hereinaboT specified. Each party further agrees and covenants that if the facts wit respect to which this Agreement is executed are found to 1: different from the facts now believed to be true, such part expressly accepts and assumes the risk of such possible differenc in facts and agrees that this document shall be and remain full effective notwithstanding such difference in facts. 11. Representations and Warranties Each of the parties to this Agreement represents and warrant to the other that each of them has the full power, capacity, ar authority to enter into this Agreement, that neither of them hz sold, assigned or in any manner transferred any claims which eithc of them ever had against the other to any third party, and that r other releases or settlements are necessary from any other persc or entity to release and discharge completely the other partie from the claims specified herein. Each party agrees to indemnifq defend and hold harmless the other party from and against any ar all claims which may be asserted against such other party, base upon, arising out of, or in connection with a breach of tk representations and warranties made herein. 4 of 7 r. 0 0 12. Execution Not an Admission This Agreement is the result of a settlement and compromise ( disputed matters as herein set forth. By entering into th: Agreement, no party hereto admits that the claims of the other a: valid or more meritorious, and each party hereto agrees that tl terms of this Agreement shall never be used, referred to, I considered, as an admission of liability of such claims. 13. Leaal Representation Each party acknowledges that it has received the advice independent legal counsel prior to the execution of this Agreeme: and the opportunity to receive an explanation from legal counsl regarding the legal nature and effect of the Agreement, and ea party understands the terms and provisions of this Agreement a its nature and effect. Each party further represents that it entering into this Agreement freely and voluntarily, relying sole upon the advice of its own counsel, and not relying on t representations of any other party or of the counsel of any 0th party. Each party expressly agrees that this Agreement shall n be construed or interpreted for or against the party drafting t Agreement. 14. Waiver No breach of any provision hereof can be waived except writing by the party against whom enforcement of the waiver sought. Waiver of one breach of any provision hereof shall not deemed to be a waiver of any other breach of the same or any 0th provision hereof. Failure on the part of any party hereto complain of any act or failure to act of any other party or declare any other party in default hereunder, irrespective of h long such failure continues, shall not constitute a waiver of t rights of such party hereunder. 15. Counterparts This Agreement may be executed in counterparts in original by way of facsimile signature. When each party has signed a delivered such counterpart, each counterpart shall be deemed original, and, when taken together with other signed counterpart shall constitute an agreement which shall be binding upon a effective as to all parties. No counterpart shall be effecti 5 of 7 I- * e 0 until all parties hereto have executed and exchanged an execute counterpart hereof, 16. Successors and Assisns This Agreement may not be assigned by any party without tl prior written consent of the other parties. Subject to tl foregoing provisions, this Agreement shall inure to the benefit ( and be binding upon the parties hereto and their respective heir: successors and assigns. 17. Applicable Law and Venue This Agreement is made, executed and entered into and shall I governed by the laws of the State of California, and any proceedil involving this Agreement shall be brought in San Diego County. 18. Intearation This Agreement contains the entire agreement and understandil concerning the subject matter herein and supersedes and replacc any prior negotiations and agreements between the parties heretc or any of them, whether written or oral. 19. Attorneys ' Fees If any party breaches any obligation under this Agreement, tl non-breaching party shall be entitled to reasonable expense: attorneys' fees, and costs incurred in any action taken, with ( without litigation, to enforce the terms of the Agreement, or . remedy or compensate for such breach. 20. Severability In the event that any one or more of the provisions of th Agreement shall be declared invalid, illegal, or unenforceable any respect, the validity, legality and enforceability of t: remaining provisions contained herein shall not be in any w4 affected or impaired thereby. 6 of 7 f. . A a @ 21. Modifications Any alterations, changes or modifications of or to th: Agreement, in order to be effective, shall be made by writtt instrument or interlineation hereon, and in each such instanc shall be duly signed on behalf of each party hereto. 22. The parties to this Agreement, and each of the1 acknowledge that (1) this Agreement and its reduction to fin; written form is the result of extensive good faith negotiatior between the parties through their respective counsel; (2) sa: counsel have carefully reviewed and examined this Agreement befo: execution by said parties, or any of them; and (3) any statute ( rule of construction and ambiguities are to be resolved against tl drafting party shall not be employed in the interpretation of th: Agreement. IN WITNESS WHEREOF, REBECCA POWERS has executed this Agreemer as of the day and year first written above. P DATED: e '1 26//& &lw46#& REBECCA POWERS APPROVED AS TO FORM: DATED: I I /.) /.C q 3 GEORG E. FLEMING Attorney for REBECCA POWERS 7 of 7 , .I 0 ". e MUTUAL RELEASE AND SETTLEMENT OF ALL CLAIMS RECITALS A. On December 18, 1994, plaintiff and cross-defendant JAMES POWERS (herein I1RELEASEEI1) was involved in a serious mota vehicle accident when the car he was driving collided with a MASZK while in the course and scope of his employment with defendant/cross-defendant CITY OF CARLSBAD (collectively ''RELEXSOR") . patrol car operated by defendant/cross-complainant GANNON H. B. On June 23, 1995, RELEASEE, his wife REBECCA POWERS, and three children, MARK POWERS, KELLY POWERS and ALICIA POWERS (collectively "the POWERS1'), all occupants of RELEASEE'S vehicl filed an action against RELEASOR in San Diego Superior Court as case number N68145. In this action, the POWERS alleged causes action for negligence, violation of Vehicle Code provisions, violation of Government Code provisions, dangerous condition of public property, and negligent infliction of emotional distress In response, on or about August 4, 1995, RELEASOR filed a cross. complaint against RELEASEE for total indemnity, partial indemnii and declaratory relief (herein the 81CROSS-COMPLAINT1') on the basis that the POWERS' damages were, in whole or in part, attributable to the contributory negligence (herein "the CONTRIBUTORY NEGLIGENCE1') of RELEASEE. RELEASEE has denied all material allegations of the CROSS-COMPLAINT. C. It is intended hereto to effect a final resolution and settlement on any and all existing disputes and claims between the RELEASOR and RELEASEE (collectively, Itthe PARTIES"), regardless of their nature or basis, which arose, may have arisen, or hereinafter can' arise by reason of any matter, cause of action, or thing whatsoever which occurred prior to the date of this agreement, or may occur in the future related to the CONTRIBUTORY NEGLIGENCE, including, but not limited to, all of those claims which were or could have been the subject of the CROSS-COMPLAINT and any future claims or damages which might arise from the facts, circumstances, conduct, contractual arrangements, handling, or occurrences which were or could have been the subject of said CROSS-COMPLAINT arising from the CONTRIBUTORY NEGLIGENCE. D. For purposes of this agreement, the terms PARTY and PARTIES are intended to and shal.1 be interpreted to include executors, administrators, assigns, parent and subsidiary organizations, partners, affiliates, agents, servants, stockholders, employees, predecessors and successors in interest E. It is further understood and intended that this agreement constitutes a compromise of disputed claims and is not H:\TEHP\SYY\BCZ03.REL -1- I e -~ 0 to be construed as an admission of liability on the part of the PARTIES referred to herein. AOREEMENT THEREFORE, RELEASOR hereby agrees and acknowledges as follows: FOR AND IN CONSIDERATION OF THE SETTLFNENT OF VISTA SUPERI COURT CASE NUMBER N68145, which settlement is hereby acknowledg by RELEASOR, and in, consideration of the mutual releases grante by each of the PARTIES to the other; 1. Each of the PARTIES, on behalf of himself, his heirs, executors, administrators, agents, assigns, parent and subsidia organizations, partners, affiliates, agents, servants, stockholders, employees, predecessors and successors, hereby settles with, releases and forever discharges any and all clain demands, obligations, or causes of action of whatever kind or nature, known or unknown, which that PARTY now has or may hereafter have, arising from or in any way related to the CONTRIBUTORY NEGLIGENCE, including any and all claims which wer or could have been asserted as part of the CROSS-COMPLAINT, and any future claims which might arise from the facts, circumstances, conduct, contractual arrangements, or occurrence of the CONTRIBUTORY NEGLIGENCE. 2. It is expressly understood by RELEASOR that settlemen of Vista Superior Court Case Number N68145 is the total settlement to be made by RELEASEE in settlement of this matter, and that no monies will be paid by RELEASEE as a result of the CONTRIBUTORY NEGLIGENCE, o’r the CROSS-COMPLAINT. The PARTIES shall each bear their own attorney‘s fees and costs in connecti with the CROSS-COMPLAINT. In further consideration for the above-mentioned sums paid by RELEASEE, and in settlement of any and all claims or potenti; claims of RELEASOR, RELEASOR agrees, represents, and warrants a: follows: 3. RELEASOR and RELEASEE understand, acknowledge, and agree that the above-mentioned Recitals are part of this agreement, and are hereby incorporated by reference as though fully set forth. 4. RELEASOR understands that any and all potential liability of RELEASEE arising out of the CONTRIBUTORY NEGLIGENCI or the CROSS-COMPLAINT is disputed by RELEASEE, and this releasc constitutes the compromise of a disputed claim and shall not be construed as an admission of liability., H:\TEHP\SYY\BC203.REL -2- , I\ e 0 5 RELEASOR understands, acknowledges, and warrahts thai this is a full and final release applying to all known, unknow and unanticipated injuries or damages. RELEASOR expressly and intentionally waives all rights and benefits which he now has ( in the future may have under the terms of Section 1542 of the Civil Code of the State of California, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW QR 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. 6. RELEASOR warrants and represents to RELEASEE that non of the claims herein released have been, or shall be, assigned any person or entity. 7. RELEASOR represents, covenants, and agrees that he wi forever refrain from initiating, prosecuting, maintaining, . proceeding on, assisting, or providing assistance or advising t be commenced against RELEASEE any action, proceeding, investigation, review, litigation, or proceeding by any State, local or federal agency, body, tribunal, or private regulatory body, which arises out of, or may be based upon, related or connected with any and all matters released herein. 8. RELEASOR and RELEASEE agree that this release shall bc governed by the laws of the State of California, and any questions arising herein shall be construed or determined according to such law. Venue in any action arising out of this release shall be in the County of San Diego. 9. RELEASOR and RELEASEE represent and warrant that this release contains the entire agreement between the parties heretc The terms of this release are contractual and not a mere recital 10. If any provision or portion of this release is held tc be illegal or invalid, by a court of competent jurisdiction, sa! remainder of this release shall continue to be valid and enforceable. .provisions shall be deemed to be severed and deleted, and the 11. RELEASOR and RELEASEE acknowledge that they have been .represented by legal counsel, and that they have freely consent€ to the terms and conditions of this release, which has not involved coercion, undue influence, or economic pressure. 12. RELEASOR agrees to execute and deliver to RELEASEE SUC additional documents and do all actions necessary, convenient, c desirable, as may be reasonably required to fully carry out and effect the intent of this release. RELEASOR shall cause the H;\TEMP\SYY\EC203,REL -3- ' I< -r+ e 0 Complaint in Vista Superior Court case number N68145 to be dismissed with prejudice as to RELEASEE, JAMES POWERS. 13. In any action to enforce any provision or intent of this release and/or for breach of any provision or intent of th agreement, the prevailing party shall be entitled to recover reasonable costs in such action, including reasonable attorneys fees . 14. This entire agreement, and each pGovision hereof, sha be deemed to have been drafted jointly by the PARTIES. 15. This agreement may be executed in more than one part the parties hereto, each of which shall be deemed an Original, and which together shall constitute one and the same agreement, 16, RELEASOR and RELEASEE acknowledge that they have read and understand each and every provision of this release, and by placing their signatures at the end of this release, represent that they have voluntarily assumed the obligations contained herein, and intentionally waived all of the rights stated herei: of their own free will. DATED: (2-9-96 9 GANNON H. MASZK DATED: 12/9/96 CITY d6 CARLSBAD /) t L LAG rlay VL APPROVED AS TO FORM: r DATED: qb 11% l Bh LUCAS & DUNN / V e Butz, Attorneys fo MASZK and CITY OF CARLSBAD H:\TEHP\SYY\ECZO~.REL -4- '' i i . I 1 a 0 \ CERTIFICATION STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) ss. I, KAREN R. KUNDTZ, Assistant City Clerk of the City of Carlsbad, County of San Diego, State of California, hereby certify that I have compared the foregoing copy of .the Mutual Release and Settlement, dated 12/9/96 which-original copy is on file in the City Clerk'.s Office of the City of Carlsbad; that the same contains a. true and correct transcript therefrom. WITNESS my hand and the seal of said City of Carlsbad, this 20th day of December Y 1996 (SEAL) : IST NT I Y CL