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HomeMy WebLinkAbout1997-10-21; City Council; 14388; SETTLEMENT OF LAWSUIT ENTITLED MCGRATH V. CITY OF CARLSBAD CASE NO. N72265b b CITY OF CAR 13 'BAD -AGENDA BILL 0 L j!i, \ a. h YV AB# /'?, 3gg TITLE: SETTLEMENT OF LAWSUIT ENTITLED MCGRATH V. CITY OF CARLSBAD MTG. 10 -a/ - 77 CASE N0.N 72265 DEPT. CA Y DEPT. HD. CITY ATTY. ,CITY MGR. I S 0 .- + 2 s - .- 0 S 3 RECOMMENDED ACTION: That Council authorize settlement of this case by adopting Resolution No. 93-6 authorizing payment of the settlement amount. ITEM EXPLANATION: This case arose from a complaint alleging breach of contract, negligence and brea implied warranty arising out of a construction contract for the road widening of Tam; Avenue from Carlsbad Boulevard to Interstate 5 entered into on October 19, I! Plaintiff had originally claimed damages in the amount of $368,000 on six diff theories. The case was settled for $30,000 after mediation. FISCAL IMPACT: There are sufficient funds in Engineering Account No. 3207 000 9060 32031 900 to ( the settlement. EXHIBITS: 1. Resolution No. 92"39 2. Settlement and Release Agreement ~ 8 0 e 1 2 3 4 5 6 7 a 9 10 11 RESOLUTION NO. 97-639 A RESOLUTION OF THE CITY COUNCIL OF THE CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED C. W. . McGRATH. INC.. V. CITY OF CARLSBAD. CASE NO.72265 The City Council of the City of Carlsbad does hereby resolve as follo WHEREAS, on recommendation of the City Attorney, the City Coun of the City of Carlsbad, California has determined that a settlement in the case entitled McGrath v. Citv of Carlsbad is in the public interest; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the of Carlsbad, California as follows: 1 12 0 am 1. That the above recitations are true and correct. ~wZ vlug 92 13 2d $055 14 2. That the City Council approves the settlement and autbol disbursement of $30,000 from Engineering Account No. 3207 000 9060 32031 uzg: iUC3 0502 15 *;s2 ZWCIYO for C. W. McGrath, Inc. v. City of Carlsbad. aaqo E:? ozA - 16 0 aoA cc2 17 GO 3. That the Settlement and Release Agreement is hereby approve1 PASSED, APPROVED AND ADOPTED at a Regular Meeting a 18 19 20 21 22 23 24 25 26 27 28 City Council of the City of Carlsbad on the 21st day of October 1997 b following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, NOES: None ABSENT: None ATTEST: 0 0 RELEASE AND SATISFACTION KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of the sum of thirty thousand dollars ($30,000.0( receipt of which is hereby acknowledge, the undersigned, MICHAEL P. MC GRAT does hereby acknowledge full satisfaction and payment of each and every claim and/ demand of whatever kind or nature that now exists or may hereafter accrue on behalf. the undersigned against the CITY OF CARLSBAD, their agents and servants, or a1 other person or persons, firm, corporation, association, partnership or entity acting ( their behalf, charged with responsibility for or liable directly, indirectly or vicariously f reimbursement of the costs of public improvements to the undersigned, alleged to ha! arisen or resulted from an incident, casualty or event which commenced on Novemb 16, 1992, in the City of Carlsbad, County of San Diego, State of California, and for whic said costs the undersigned claims that said CITY OF CARLSBAD, their agents a1 servants, at said time and place, are legally required to reimburse, which liability disputed and denied. .. The undersigned does hereby release and discharge said CITY OF CARLSBP their agents and servants, and any other person or person, firm, corporation, associatic partnership or entity acting on their behalf, of and from each and every claim and/ demand of whatsoever kind or nature, arising or to arise in favor of the undersign€ including all claims for money, by reason of or growing out of the aforesaid incidel casualty or event. 0 0 AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMEN AND PAYMENT, IT IS EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and fins\ sett\eme shall never be treated as an admission of liability or responsibility at any time or in ar manner whatsoever on the part of the parties herein released. 2. This release is expressly intended to cover and include all claims and attorney fees, several or otherwise, past, present or future, which can or may ever be asserted t heirs, or otherwise, including all causes of action therefor, as the result of the aforesai 9. incident, casualty or event, or the effects or consequences thereof. 3. The undersigned understands and agrees that this is a full and final releas and that this release covers and includes all claims and attorney's fees of every kind c nature, past, present or future, known or unknown, suspected or unsuspected, and a claims under Section 1542, Civil Code of California, are hereby expressly waived. Thl undersigned understands said Section 1542 provides: "A general release does not ektend 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. Tne undersigned wiii inaemnifj; Ziid savs harmlsss said CfTY OF CARLSE" 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 andlo demand of every kind or character, including all causes of action therefor, which can o may ever be asserted as the result of the aforesaid incident, casualty or event or as : result of this settlement. 5. The undersigned shall be considered to have agreed to all the terms of thi: release and that the above-mentioned sum is the entire and only consideration for thi: e e release. 6. This release shall bind and be binding upon the heirs, executors, administratol and assigns of the undersigned. The undersigned does hereby authorize and direct that payment of .said sum 1: made by check or draft payable to the undersigned. IN WITNESS WHEREOF, the undersigned does hereunto set his hand and se this 3 ,-,I day of &./dh~i.c , 1997 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ) ):SS On /ob,/?? before me, d,q,y;c ??/7r..&hxw hey , nota public, personally appeared &?;L /7~.~/f r~;lt &-a +/I 6 TM~I? - dl{/ <e LVC Lk,+/ personally known to me or proved to me on the basis of satisfactory evidence to be tt person(s) whose name(s) -subscribed to the within instrument and acknowledgc to me that he/* executed the same in &/-authorized capacity(ies), ar that by . h signature(s) on the instrument the person(s), or the entity up( behalf ofmperson(s) acted, executed the instrument. Witness my hand and official seal. g" GNATURC'O~ fl&p2/ NOTARY I represent plaintiff in this foregoing "Release ar Satisfaction" and have recommen WILLIAM L. BRUCKNER, ESQ.