HomeMy WebLinkAbout1998-01-27; City Council; 14531; Settlement Case N073141 Call v. City & CMWD.-_ .- - - .’ L - dTY OF CARLSBAD - AGEMA BILL 3 &O
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AB# ‘y, 5 31 v TITLE. REPORTING OUT THE TERMS AND CONDITIONS OF DEPT. HD.
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THESETTLEMENT AS REQUIRED BY THE BROWN ACT IN
CALL V. CITY AND CARLSBAD MUNICIPAL WATER CITY ATTY. LIE* DISTRICT NO73141
DEPT. CA CITY MGR.
RECOMMENDED ACTION:
There is no action the Council needs to take.
ITEM EXPLANATION:
At the City Council closed session meeting of December 16, 1997, the City Council discussed
and approved a proposed settlement of the above referenced case. The parties have settled
this lawsuit and this item satisfies the Brown Act requirement to report the fact of a settlement
of litigation approved in a prior closed session, and make the terms and conditions of the
settlement available to the public.
The Settlement Agreement and Full Release of All Claims (attached) is provided for public
review.
I FISCAL IMPACT:
The cost of the settlement is $143,150.
EXHIBITS:
Settlement Agreement and Full Release of All Claims
SETTLEMENT AGREEMENT
AND FULL RELEASE
OF ALL CLAIMS
THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS is
made and entered into in San Diego County, California, by ELEANORE CALL (“CALL”).
THE CITY OF CARLSBAD; and THE CARLSBAD MUNICIPAL WATER DISTRICT
(collectively, “CARLSBAD”) are the parties being released herein by CALL.
RECITALS
1. CALL filed her Complaint for Damages (Negligence; Nuisance;
Trespass; and Inverse Condemnation) on or about November 15, 1996, in the Superior
Court of the State of California for the County of San Diego, Case No. N 073141, naming
CARLSBAD as Defendants. The Complaint alleges and seeks damages to certain real
property commonly known as 2248 Jefferson Street, Carlsbad, California, caused by the
rupture of a water line. The facts and allegations upon which the claims herein are based
are more fully recited in the pleadings on file in Case No. N 073141, which pleadings are
incorporated herein by this reference.
2. The parties hereto are desirous of resolving the disputes between
them and have agreed to settle their claims of every kind among them, arising out of or
relating in any way to the matters referred to in Paragraph 1 above.
In consideration of the representations, warranties, acknowledgments,
promises, and covenants contained herein, and other valuable consideration, and full
discharge and settlement of all claims and causes of action, by CALL, it is agreed as
follows:
1. Incorporation of Recitals. The parties to this Settlement Agreement
hereby stipulate and agree that the aforementioned Recitals constitute an integral portion
of this Settlement Agreement.
2. CARLSBAD shall pay to CALL the sum of $143,510.00.
3. CALL hereby authorizes and instructs its attorneys of record to dismiss
the aforementioned Complaint which is pending against CARLSBAD, with prejudice, in its
entirety. CALL, in so instructing her attorneys, acknowledges and stipulates that such
dismissal prevents and prohibits any and all future civil actions against CARLSBAD with
respect to the claims and causes of action set forth in the aforementioned Complaint.
CALL agrees to indemnify CARLSBAD from any liability and/or damages resulting from or
sought as the result of any subsequent litigation initiated by CALL against third parties
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based upon the same general set of facts set forth in San Diego Superior Court Case
No. N 073141.
4. In consideration of the said sum of $143,510 to be paid by CARLSBAD
to CALL, CALL, on behalf of herself, her insurers, trustees, administrators, heirs, agents,
servants, employees, representatives, successors, and assigns hereby fully releases and
discharges CARLSBAD and its insurers, agents, servants, employees, officers, and
successors from all claims and causes of action (contingent, accrued, inchoate or
otherwise) including but not limited to claims for attorney’s fees, interest, witness fees, and
all other costs and litigation expenses which CALL may have against CARLSBAD,
collectively or otherwise, in connection with, related to, or arising out of, in any way, the
events, transactions, and allegations referred to in the Complaint referred to herein. CALL
hereby expressly releases CARLSBAD from all claims presently existing, whether asserted
or unasserted. CALL covenants not to sue or assert any causes of action or claim against
CARLSBAD in connection with, relating to or arising out of the facts and allegations of the
Complaint referred to herein.
5. Waiver of Civil Code Section 1542. CALL acknowledges that she
may hereafter discover facts different from or in addition to those which she now believes
to be true with respect to the released claims, the property, or the action, and agrees this
release of all claims shall be and remain effective in all respects notwithstanding such
different or additional facts or the discovery thereof.
Section 1542 of the California civil Code 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.
Notwithstanding the provisions of this section, this Agreement shall be in full
settlement of all claims and disputes concerning, relating to, or arising, in any way, out of
the aforementioned events, transactions, and allegations. CALL hereby expressly waives
all rights she may have by virtue of Section 1542. This Agreement shall act as a release
of future claims that may arise from any of the above-mentioned matters, whether such
claims are currently known, unknown, foreseen, or unforeseen. Nothing in this Agreement
shall be construed to waive any claims for damages from subsequently arising water leaks
of Carlsbad’s facilities or water releases from Carlsbad’s facilities.
6. Warrantv Against Prior Assianment. CALL represents and warrants
that she has not heretofore subrogated (either voluntarily, involuntarily, or by operation of
law), assigned, transferred, or purported to assign or transfer, to any other person or entity,
any rights, claims, or causes of action herein released and discharged. Furthermore, CALL
agrees to indemnify and hold CARLSBAD harmless from and against any claims or
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demands or liability arising out of any rights, claims, or causes of action which have
actually been assigned or transferred contrary to the foregoing representation, or in
violation of the foregoing warranties and any and all loss, expense, and/or liability arising
directly or indirectly out of the breach of any of the foregoing representations or warranties.
7. CALL covenants and agrees not to bring any action, claim, suit, or
proceeding against CARLSBAD, directly or indirectly, regarding or relating to the matters
released hereby, and further covenants and agrees that this Settlement Agreement is a bar
to any such claim, action, suit, or proceeding.
8. CARLSBAD covenants and agrees to exert good faith efforts in
processing any necessary applications for repair work to be accomplished.
9. CALL hereby declares and represents that effects or deficiencies,
either latent or patent, in the design and/or construction of the slope stabilization project,
may continue to exist and that the identification, repair, and stabilization of those conditions
may be uncertain, indefinite, and unsuccessful, and in making this Release, it is
understood and agreed that CALL relies wholly upon her judgment, belief, and knowledge
of the nature, extent, effect, and duration of all defects and/or deficiencies relating to the
repairs and/or stabilization of the conditions. This Release is made without any reliance
upon any statement or representation of CARLSBAD or its representatives or by any
engineer or other consultant employed by CARLSBAD. CALL further represents,
warrants, and agrees, that in executing this Release, she does so with full knowledge of
any and all rights which she may have with respect to CARLSBAD, to the property and to
this action.
10. No Admission of Liability. This Agreement embodies a compromise
of disputed claims and shall not be used or construed as an admission of liability or
wrongdoing by any party or parties for any purpose. Further by this Settlement Agreement,
no admission of any wrongful action or inaction on the part of any party is expressly or
impliedly admitted.
suit.
11. Waiver of Costs. All parties hereto agree to bear their own costs of
12. Entire Aareement. This Agreement constitutes the final expression
and complete and exclusive statement of the terms of the agreement of compromise and
settlement among the parties. This Agreement supersedes and replaces all prior
negotiations, proposed agreements, and agreements, written or oral, relating thereto.
13. Advice of Counsel. CALL by execution of this Agreement, represents
to CARLSBAD that she has reviewed each term of this Agreement with her counsel, and
she shall not deny the validity of this Agreement on the ground that she did not have
advice of counsel.
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14. Knowina. Free and Voluntary Execution. This Agreement has been
carefully read by CALL, its contents are known by CALL, and it is freely and voluntarily
signed by CALL.
15. Construction. This Agreement shall not be construed against the
party or its representative who drafted it or any portion of it. The captions of the section
of this Agreement are for reference only, and are not to be construed in any way as a part
of this Agreement. No partial invalidity of this Agreement shall affect the remainder, which
remainder shall continue with full force and effect, the invalid portion being severed.
16. Governing Law. This Agreement shall be interpreted construed
governed, and enforced under and pursuant to the laws of the State of California.
17. Waiver. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party or parties making the waiver.
18. Jurisdiction and Venue. The parties consent to the jurisdiction of the
courts of the State of California to resolve any dispute regarding this Agreement. In mutual
recognition of the fact that this Agreement is to be performed in San Diego County,
California, the parties agree that in the event any civil litigation is commenced regarding
this Agreement, San Diego County, California, is the proper county for the commencement
and trial of such action.
IN WITNESS WHEREOF, this Agreement is executed thus - .?.&AY
of January, 1998.
ELEANORE CALL
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