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HomeMy WebLinkAbout1998-03-24; City Council; 14615; Settlement Sumitoma v. LA et al (N072752), .I . CI I-Y OF CARLSBAD - AGENuH BILL 4-I AB# y dL$ TITLE. SElTLEMENT OF SUMITOMO MARINE V. CITY OF MTG. 3-2 I/-. ?8 LOSNGELES. ET AL. DEPT. HD. CITY AIT DEPT. CA CITY MGR. RECOMMENDED ACTION: That Council authorize settlement of this case by adopting Resolution No. a , and authorize the Mayor to sign the Settlement Agreement and Release. I ITEM EXPLANATION: A settlement has been reached in a lawsuit brought by Sumitomo Marine against the City of Los Angeles, T. L. James and City of Carlsbad as a result of a flooding event which occurred on March 5, 1995 at the La Costa Hotel and Spa. The insurance carrier for T. L. James paid $30,000 to the plaintiff who released and dismissed its action against the City of Los Angeles, City of Carlsbad, and T.L. James. The Settlement Agreement and Release is provided for public review. FISCAL IMPACT: The cost of settlement was paid by the carrier for T.L. James. EXHIBITS: Resolution No. 58 -g( Settlement Agreement and Release / RESOLUTION NO. 98-81 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE SETTLEMENT OF THE LAWSUIT ENTITLED SUMITOMO MARINE V. CITY OF LOS ANGELES, ET AL. NO72752 WHEREAS, on recommendation of the City Attorney, the City Council of 6 the City of Carlsbad, California has determined that a settlement in the case entitled. 7 Sumitomo Marine V. Citv Of Los Anaeles. Et Al. is in the public interest, 8 9 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 10 Carlsbad, California, as follows: 11 1. That the above recitation is true and correct. 18 19 20 21 22 23 24 25 26 27 28 2. That the Settlement Agreement and Release is hereby approved. 3. That the Mayor is authorized to sign the Settlement Agreement and Release. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 24th day of March , 1998, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard, Kulchin and Hall NOES: None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Clerk) -- - - SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement And Release is made between Plaintiff SUMITOMO MARINE AND FIRE INSURANCE COMPANY, LIMITED (llSumitomo") , as subrogee for La Costa Hotel & Spa Corp., and Defendants CITY OF LOS ANGELES ("Los Angelesll), T.L. JAMES & COMPANY ("T-L. James"), and CITY OF CARLSBAD (l'Carlsbad"). RECITALS WHEREAS, certain claims and disputes have arisen between Sumitomo and Los Angeles, T.L. James and Carlsbad as the result of a flooding event which occurred on March 5, 1995 at the La Costa Hotel & Spa, in the City of Carlsbad, California ("the incident"); and WHEREAS, certain of these claims and disputes have been asserted in the lawsuit filed in the Superior Court of the State of California in and for the County of San Diego, North County Judicial District, Case No. NO72752 ("the Lawsuit") ; and WHEREAS, Sumitomo, Los Angeles, T.L. James and Carlsbad desire to resolve all claims and disputes between them, including without limitation all claims and disputes concerning the incident and the Lawsuit. NOW, THEREFORE, in consideration of the mutual promises and covenants provided herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Sumitomo, Los Angeles, T.L. James and Carlsbad agree as follows: 75434\00005\sumitomo.rel 1 3 - - AGREEMEN!C AND RELEASE -- Sumitomo, for and in consideration of the sum of THIRTY THOUSAND DOLLARS ($30,000.00), receipt of which is hereby acknowledged, and by these presents does for itself, its respective administrators, successors and assigns, and each of them, remises and releases and forever discharges Los Angeles, T.L. James and Carlsbad, their respective officers, agents, directors, stockholders, owners, employers, employees, attorneys, underwriters, insurers, insurance brokers and agents, adjusters' representatives, successors, assigns, and affiliatedand subsidiary corporations and companies, past and present, and each of them, (all of the above persons are hereinafter referred to as the "Released Parties"), for and from all manner of actions, suits, liens, debts, dues, damages, claims, judgments, bonds, executions and demands of every nature, kind and description whatsoever, whether known or unknown, and whether suspected or unsuspected which Sumitomo ever had, now has or hereafter can, shall or may have against the Released Parties, or any of them, arising out of the incident as alleged in the complaint filed by Sumitomo which Sumitomo hereby agrees to and directs its attorneys to dismiss with prejudice. Sumitomo hereby covenants and agrees that it will not, at any time hereafter, attempt to assert any claims or commence, maintain or prosecute any actions at law, in equity or otherwise against the Released Parties, or any of them, or their respective officers, agents, directors, stockholders, owners, employers, 75434\00005\sumitomo.rel 2 4 -- employees, insurers, underwriters, brokers, attorneys, successors, assigns, or affiliated or subsidiary corporations or companies, or against the monies, goods, properties or assets of any description or kind of any of the Released Parties, upon or on account of any loss, damage, claim, demand, action or cause of action of any kind or nature, whether known or unknown, arising out of the incident and the Lawsuit, both of which are the subject of this Settlement Agreement And Release. Sumitomo, Los Angeles, T.L. James and Carlsbad hereby acknowledge and represent that the settlement of Sumitomo's claims against the Released understood within the §877.6 and the broad Parties was entered into in l'good faith" as context of California Code of Civil Procedure parameters of Tech-Bilt, Inc. v. Woodward- Clvde & Associates (1985) 38 Cal.3d 488,. 213 Cal.Rptr. 256 and further, that any other party to the Lawsuit, including without limitation CENTENNIAL ENGINEERING, INC. ("Centennial"), is barred from making any further claims against the Released Parties for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. The undersigned further acknowledge and represent that they have read this Settlement Agreement And Release, or have had it read to them, and that they know and understand the full contents and effect of it. Sumitomo hereby fully releases the Released Parties from any and all liability and responsibility of any kind on account of the incident which is the subject of the Lawsuit, whether known or 75434\00005\sumitomo.rel 3 5 -- . unknown, past, present, or future, and acknowledges and represents that it has been fully and independently advised by its own counsel regarding the effect of this Settlement Agreement And Release. Sumitomo hereby expressly waives all rights under Section 1542 of the Civil Code of California and similar laws of any state or territory of the United States or other jurisdiction. Section 1542 of the Civil Code of California provides as follows: "S1542. Certain Claims Not Affected by General Release. A general release does not extend to ciaims 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 undersigned hereby acknowledge and represent that they are legally entitled to settle every claim herein referred to. Sumitomo, through its undersigned representative, hereby acknowledges and represents that it is entitled to release every claim against the Released parties, and to receive the sum of $30,000.00 hereinabove referred to, and to give a valid, full and final acquittance therefore. The undersigned hereby acknowledge and represent that they have relied solely upon facts obtained from their own investigation and upon the advices of the attorneys and legal representatives for Sumitomo, Los Angeles, T.L. James and Carlsbad in executing this Settlement Agreement And Release and that they have not relied upon any statement or representation of any nature by any other party, or their respective insurers, underwriters, brokers, agents, attorneys, surveyors, or representatives. 75434\00005\sumitomo.rel 4 -- -- This Settlement Agreement And Release is the entire agreement of the parties, and supersedes all prior agreements, whether oral or in writing. This Settlement Agreement And Release cannot be modified, supplemented, or amended unless agreed in advance, in writing, by all of the parties. This Settlement Agreement And Release, and each and all of its provisions, shall inure to the benefit of and be binding upon the respective successors, administrators and assigns of Sumitomo, Los Angeles, T.L. James and Carlsbad. SUMITOMO Dated: &/j/ By Dated: Dated: By: Dated: By: +/&+f 75434\00005\sumitomo.rel 5 7 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-l 989 (760) 434-2891 FAX: (760) 434-8367 July 13, 1998 Tracy R. Richmond Worden, Williams, Richmond & Ellis Suite 102 462 Stevens Avenue Solana Beach, CA 92075 RE: SUMITOMO MARINE V. CITY OF LOS ANGELES Dear Mr. Richmond: Enclosed is a certified copy of the Settlement Agreement and Release between Sumitomo Marine & Fire Insurance Co. and the City of Los Angeles, T.L. James & Co. and the City of Carlsbad as it was approved by Council on March 17, 1998. I’m sorry I dropped the ball on this. But, I assumed (wrongly) that if the Council approved it, it was fine the way it was. In any case, please use this certified copy to obtain the signature of the representative of T.L. James and Company and return the original signature page to me. I will give the original to the City Clerk for the permanent record and keep a copy for our office. Thank you for having Ruthie following up on this. Hopefully, this case will be closed in a very short while. Please give me a call if you have any questions or concerns. n Very truly yours, RANDEE HARLIB Secretary to the City Attorney enclosure c: Assistant City Clerk ; July 9, 1998 TO: City Clerk FROM: City Attorney SUMITOMO MARINE AND FIRE INSURANCE V. CITY OF LOS ANGELES, T.L. JAMES & COMPANY AND CITY OF CARLSBAD - CASE NO. NO72752 Attached is the original Settlement Agreement and Release in the above> -p/ eferenced case which was approved by the City Council at its meeting of Febr&ry 24. 1998. Would you be kind enough to provide me with a certified copy of it?‘ltls our-i&ntion to have a representative of T.L. James sign the certified copy and return it to us so that the original Settlement Agreement and Release will be fully executed. At that time, I will provide you with the original to be placed back in your files. Thank you for your assistance in this regard. i$ RONALD R. BALL City Attorney rmh attachment . - This Settlement Agreement And Release is made between Plaintiff SUMITOMO MARINE AND FIRE INSURANCE COMPANY, LIMITED (l~Sumitomol~) , as subrogee for La Costa Hotel & Spa Corp., and Defendants CITY OF LOS ANGELES ("Los Angeles"), T.L. JAMES & COMPANY ("T.L. James"), and CITY OF CARLSBAD ("Carlsbadt'). RECITALS WHEREAS, certain claims and disputes have arisen between Sumitomo and Los Angeles, T.L. James and Carlsbad as the result of a flooding event which occurred on March 5, 1995 at the La Costa Hotel & Spa, in the City of Carlsbad, California ("the incident"); and WHEREAS, certain of these claims and disputes have been asserted in the lawsuit filed in the Superior Court of the State of California in and for the County of San Diego, North County Judicial District, Case No. NO72752 ("the Lawsuit"); and WHEREAS, Sumitomo, Los Angeles, T.L. James and Carlsbad desire to resolve all claims and disputes between them, including without limitation all claims and disputes concerning the incident and the Lawsuit. NOW, THEREFORE, in consideration of the mutual promises and covenants provided herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Sumitomo, Los Angeles, T.L. James and Carlsbad agree as follows: 75434\00005\sumitomo.rel 3 AGREEMENT AND RELEASE Sumitomo, for and in consideration of the sum of THIRTY THOUSAND DOLLARS ($30,000.00), receipt of which is hereby acknowledged, and by these presents does for itself, its respective administrators, successors and assigns, and each of them, remises and releases and forever discharges Los Angeles, T.L. James and Carlsbad, their respective officers, agents, directors, stockholders, owners, employers, employees, attorneys, underwriters, insurers, insurance brokers and agents, adjusters' representatives, successors, assigns, and affiliated and subsidiary corporations and companies, past and present, and each of them, (all of the above persons are hereinafter referred to as the "Released Parties"), for and from all manner of actions, suits, liens, debts, dues, damages, claims, judgments, bonds, executions and demands of every nature, kind and description whatsoever, whether known or unknown, and whether suspected or unsuspected which Sumitomo ever had, now has or hereafter can, shall or may have against the Released Parties, or any of them, arising out of the incident as alleged in the complaint filed by Sumitomo which Sumitomo hereby agrees to and directs its attorneys to dismiss with prejudice. Sumitomo hereby covenants and agrees that it will not, at any time hereafter, attempt to assert any claims or commence, maintain or prosecute any actions at law, in equity or otherwise against the Released Parties, or any of them, or their respective officers, agents, directors, stockholders, owners, employers, 75434\00005\sumitomo.rel 2 r employees, insurers, underwriters, brokers, attorneys, successors, assigns, or affiliated or subsidiary corporations or companies, or against the monies, goods, properties or assets of any description or kind of any of the Released Parties, upon or on account of any loss, damage, claim, demand, action or cause of action of any kind or nature, whether known or unknown, arising out of the incident and the Lawsuit, both of which are the subject of this Settlement Agreement And Release. Sumitomo, Los Angeles, T.L. James and Carlsbad hereby acknowledge and represent that the settlement of Sumitomo's claims against the Released Parties was entered into in "good faith" as understood within the context of California Code of Civil Procedure 8877.6 and the broad parameters of Tech-Bilt, Inc. v. Woodward- Clyde & Associates (1985) 38 Cal.3d 488, 213 Cal.Rptr. 256 and further, that any other party to the Lawsuit, including without limitation CENTENNIAL ENGINEERING, INC. ("Centennialt'), is barred from making any further claims against the Released Parties for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. The undersigned further acknowledge and represent that they have read this Settlement Agreement And Release, or have had it read to them, and that they know and understand the full contents and effect of it. Sumitomo hereby fully releases the Released Parties from any and all liability and responsibility of any kind on account of the incident which is the subject of the Lawsuit, whether known or 75434\00005\sumitomo.rel 3 5 unknown, past, present, or future, and acknowledges and represents that it has been fully and independently advised by its own counsel regarding the effect of this Settlement Agreement And Release. Sumitomo hereby expressly waives all rights under Section 1542 of the Civil Code of California and similar laws of any state or territory of the United States or other jurisdiction. Section 1542 of the Civil Code of California provides as follows: "§1542. Certain Claims Not Affected by General Release. A general release does not extend to ciaims 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 undersigned hereby acknowledge and represent that they are legally entitled to settle every claim herein referred to. Sumitomo, through its undersigned representative, hereby acknowledges and represents that it is entitled to release every claim against the Released parties, and to receive the sum of $30,000.00 hereinabove referred to, and to give a valid, full and final acquittance therefore. The undersigned hereby acknowledge and represent that they have relied solely upon facts obtained from their own investigation and upon the advices of the attorneys and legal representatives for Sumitomo, Los Angeles, T.L. James and Carlsbad in executing this Settlement Agreement And Release and that they have not relied upon any statement or representation of any nature by any other party, or their respective insurers, underwriters, brokers, agents, attorneys, surveyors, or representatives. 75434\00005\sumitomo.rel 4 b -- This Settlement Agreement And Release is the entire agreement of the parties, and supersedes all prior agreements, whether oral or in writing. This Settlement Agreement And Release cannot be modified, supplemented, or amended unless agreed in advance, in writing, by all of the parties. This Settlement Agreement And Release, and each and all of its provisions, shall inure to the benefit of and be binding upon the respective successors, administrators and assigns of Sumitomo, Los Angeles, T.L. James and Carlsbad. SUMITOMO MARINE AND FIRE Dated: q/</+f By Dated: T.L. JAMES & aMPANY Dated: By: Dated: By: 75434\00005\sumitomo.rel 7