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HomeMy WebLinkAbout2002-11-19; City Council; 16980; Settlement in Czvik v Cityb CITY OF CARLSBAD -AGENDA BILL AB# m: REPORTING OUT THE TERMS AND CONDITIONS OF CITY MGR.* DEPT. CA CITY ATTY. e CZVIKV. CITY OF CARLSBAD GIN014900 MTG. 11-19-02 THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN DEPT. HD. 16,980 RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: At the closed session hearing of November 5, 2002 the City Council (5-0) discussed and approved a proposed settlement of the above referenced case subject to approval of the court. The parties have now approved the settlement 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 General Release and Settlement Agreement attached is provided for public review. FISCAL IMPACT: The City portion of the cost of settlement is approximately $40,000. EXHIBITS: GENERAL RELEASE AND SETTLEMENT AGREEMENT Re: Joseph Frank Czvik, M.D.; Sherlyn Czvik v. City of Carlsbad, et al. San Diego County Superior Court Case No. GIN014900 This general release and settlement agreement [hereinafter "AGREEMENT"] is entered into between JosephFrank Czvik, M.D., Sherlyn Czvik and theirheirs, agents, attorneys, representatives and successors in interest [hereinafter "PLAINTIFFS"] and the City of Carlsbad [hereinafter "CITY"], Ward North America, Inc. [hereinafter "WARD"] and Robert Chamberlain dba A-1 Restoration [hereinafter "A-1"], andtheiremployees, representatives, insurers, agents, attorneys, and successors in interest hereinafter collectivelyreferred to as "DEFENDANTS", concemingthe sewage backup incident occurring at PLAINTIFFS' residence located at 4075 Sunnyhill Drive, Carlsbad on or about August 23,2000, which is the subject of San Diego Superior Court Case No. GIN014900 [hereinafter collectivelyreferred to as "INCIDENT"]. The above-named individuals and entities are .hereinafter collectively referred as the "PARTIES", with respect to the litigation and claims described below. The PLAINTIFFS Reoresent as Follows: (a) That PLAINTIFFS expressly have the authority to execute this AGREEMENT, and that this AGREEMENT as so executed will be binding upon the PLAINTIFFS; and (b) That the representations set forth above shall endure forever and shall survive the execution of this AGREEMENT and the settlement and dismissals of the action. The DEFENDANTS Reoresent as Follows: (a) That DEFENDANTS expresslyhave the authority to execute this AGREEMENT, and that this AGREEMENT as so executed will be binding upon the DEFENDANTS; and (b) That the representations set forth above shall endure forever and shall survive the execution of this AGREEMENT and the settlement and dismissals of the action. 1. INTRODUCTION The PARTIES desire to enter into this AGREEMENT in order to provide for full settlement and discharge of all claims between the PARTIES which have arisen, may arise and/or could arise, out of the subject Incident, upon the terms and conditions set forth herein. 1 2. TERMS AND CONDITIONS OF SETTLEMENT: The DEFENDANTS will pay the PLAINTIFFS as follows: (a) In addition to sums already paid to PLAINTIFFS by the CITY as a result of the INCIDENT, the CITY will pay to PLAINTIFFS Forty Thousand Dollars ($40,000.00) in checks made payable only to: "Joseph Czvik and Sherlyn Czvik"; (b) WARD will pay PLAINTIFFS Four Thousand Dollars ($4,000.00) in checks made payable only to: "Joseph Czvik and Sherlyn Czvik"; (c) A-1 will pay PLAINTIFFS Six Thousand Dollars ($6,000.00) in checks made payable only to: "Joseph Czvik and Sherlyn Czvik". A-1's payments will be made in four (4) monthly installments of$1,500.00 to bepaidbythe 30* ofeachmonthcommencing on October 30,2002 and continuing through January 30,2003. A-1's dismissal with prejudice will not be filed and A-1 will not be released from this action until after its final installment payment has been made in verifiable funds. 3. DISMISSAL OF ACTION (a) Upon receipt of full payment in verifiable funds f7om any DEFENDANT, PLAINTIFFS shall file adismissal with prejudice as to that DEFENDANT within fifteen (15) days. Dismissal and release of any individual DEFENDANT is not contingent or conditioned on payment by any other DEFENDANT. 4. PLAINTIFFS' RELEASE .. a) In consideration ofthe payments and other consideration referred to herein, PLAINTIFFS hereby fully and forever completely release, acquit and discharge DEFENDANTS jointly and severally from any and all claims, costs, demands, damages, attorneys' fees, and rights which arise from, or are directly or indirectly related to the INCIDENT, or are connected with, or caused by, the matters which are the subject of PLAINTIFFS' lawsuit, San Diego County Case NO. GIN014900. b) PLAINTIFFS specifically agree to hold DEFENDANTS harmless, and to indemnify DEFENDANTS for and against any lien, any lienholder, its agents, officers, directors, shareholders, attorneys, servants, representatives, employees, subsidiaries, partners, predecessors, successors in 2 interest, assignees, firms, or corporations which has arisen or may arise from the matters which are the subject of PLAINTIFFS' lawsuit, San Diego County Case No. GJN014900. 5. DEFENDANTS' RELEASE a) In consideration of the payments and other consideration referred to herein, DEFENDANTS hereby fully and forever completely release, acquit and discharge PLAINTIFFS jointly and severally from any and all claims, costs, demands, damages, attorneys' fees, and rights which arise from, or are directly or indirectly related to the INCIDENT, or are connected with, or caused by, the matters which are the subject of DEFENDANTS' lawsuit, San Diego County Case No. GIN014900. 6. WAIVER OF SECTION 1542 There is a risk that, after the execution of this AGREEMENT, the PARTIES will discover rights, claims or other damage or injury from the Incident, the scope, location, and character ofwhich is unknown and/or not discovered at the time this AGREEMENT is signed. There is a risk that the damage or injury from the Incident ofwhich the PARTIES and their attorneys are presently unaware may actually be more serious, (qualitatively and/or quantitatively) than the PARTIES realize. The PARTIES shall, and hereby do, assume the above-mentioned risks. This release is expressly intended to cover and include all damages, injury, defects and discovery arising against each other from the Incident which is the subject of this litigation, including all rights and causes of action arising against DEFENDANTS from the Incident. PLAINTIFFS are aware, and have been advised by their attorneys, of the provisions of California Civil Code section 1542, 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. The PARTIES hereby expressly waive.the provisions of said Section 1542 as to all matters within the scope of the claims released hereby. The PARTIES hereby warrant and guarantee that they have full and complete authority to release all such claims on behalf of themselves, their heirs, assigns and successors in interest. 3 I. NO ADMISSION OF LIABILITY It is expressly understood, acknowledged and agreed to by the PARTIES, that by reason of entering into this AGREEMENT, no party admits, expressly or impliedly, any fact or liability of any type or nature with respect to any matter, whether or not referred to herein, or the sufficiency of any claims, allegations, assertions, or positions of any party; no party has made any such admissions; and this AGREEMENT is entered into solely by way of compromise and settlement only. 8. NO PRIOR ASSIGNMENT OR TRANSFER Each party to this AGREEMENT represents and warrants there has been no assignment or other transfer or any claims or causes of action which they are releasing pursuant to the terms of this AGREEMENT. 9. STIPULATION FOR SETTLEMENT This matter was resolved through a settlement conference before Honorable J. Michael Bollman on September 30, 2002. As part of that resolution, a "Stipulation for Settlement" was entered into and is attached herein as Attachment "A". This AGREEMENT is intended to be consistent with the terms of that Stipulation and as to those portions not specifically included into this release, they are incorporated into this AGREEMENT by this reference, including Judge Bollman's retention ofjurisdiction in the event of a dispute regarding this settlement. 10. MISCELLANEOUS PROVISIONS 9.1 Entire Ameement: This AGREEMENT, including Attachment "A", constitutes the full and entire AGREEMENT between the PARTIES hereto and such PARTIES acknowledge that there is no other Agreement, oral andor written, between the PARTIES hereto. 9.2 Authoritv to Enter Ameement: This AGREEMENT is the result of ms-lmgth negotiations. 9.3 Final Aereement: The PARTIES acknowledge that (1) this AGREEMENT and its reduction to final form is the result of extensive good faith negotiations between the PARTIES through their respective counsel; (2) said counsel has carefully reviewed and examined this AGREEMENT for execution by The PARTIES, or any of them; and (3) any statute or rule of 4 construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. 9.4 Binding Ameement: This AGREEMENT is and shall be binding upon and shall inure to the benefit of the predecessors, subsidiaries, successors, assigns, PARTIES, agents officers, employees, associates, legal representatives, heirs, executives and/or administrators of each of the PARTIES hereto. 9.5 Intemretative Law: This AGREEMENT is made and entered into the State of California and shall, in all respects be interpreted, enforced and governed by and under the laws of the State of California. 9.6 Modifications: This AGREEMENT may be amended or modified only by a writing signed by all PARTIES to this AGREEMENT. 9.7 ParamaDh Headings: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. 9.8 No Inducement: ThePARTIES warrantthat no promise or inducement has beenmade or offered by any of the PARTIES, except as set forth herein, and that this AGREEMENT is not executed in reliance upon any statement or representation of any of the PARTIES or their representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. The PARTIES further represent they have been represented by legal counsel during the course of the negotiations leading to the signing of this AGREEMENT, and they have been advised by legal counsel with respect to the meaning of this AGREEMENT and its legal effect. 9.9 Attorney’s Fees and Costs in this Action: The PARTIES will bear their own attorney’s fees and costs incurred in connection with the prosecution of the subject Action, and specifically release each other from attorneys’ fees and costs, including costs of investigation. - 9.10 CountemartsiFacsimile: This AGREEMENT may be executed incountewarts with the same effect as if all original signatures were placed on one document, and all of which together shall be one and the same AGREEMENT. Facsimile signature on the AGREEMENT shall carry the same force and effect as original signatures. 5 /" 9.1 1 Effective Date: This AGREEMENT to be effective as of the date all signatures an obtained and faxed to counsel. IN WITNESS WREREOF,the undersignid have executed this Settlement Agreement anc mutual release pn*e date &xed by their signatures. n Dated: Dated: Dated Representative for DEFENDANT, CITY OF CARLSBAD Representative for DEFENDANT WARD NORTH AMERICA, WC. Representative for DEFENDANT A-I RESTORATION I acknowledge the above General Release and Settlement Agreement has been explained to my clients. I also approve the above as to form and con- /"---. Dated: EdwardH, Cross, Attorneyf&PLAINTJFFSJOSEPH CZVIK, M.D. ad SHERLYN CtVIK I acknowledge the above General Release and Settlement Ageenlent has been explained to my client. I also approve the above as to form and content. Dated: Neal S. Meyers, Attorneys for DEFENDANT CITY OF CARLSBAD Dated J. Melville Capps, Attorneys for DEFENDANT ROBERTCHAMBEIUAlNdba A-1 RESTORATION Dated Charles S. Haughey, Jr., Attorneys for DEFENDANT WARD NORTH AMERICA, INC. 9.1 1 Effective Date: This AGREEMENT to be effective as of the date all signatures are obtained and faxed to counsel. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and mutual release on the date affixed by their signatures. Dated: Dated: Daled: N- I>. b2. PLAINTIFF JOSEPH FRANK CZVIK, M.D. PLAINTIFF SHERLYN CZVIK .K&4 .P-k&?c.... Representative for DEFENDANT. CITY OF CPLRLSBAD Dated: Re resentative for DEFENDANT WARD Dated: d % A-1 RESTORATION I acknowledge the above General Release and Settlement Agreement has been explained to my clients. I also approve the above as to form and content. Dated: Edward H. Cross, AttomeyforPLAINTIFFS JOSEPH FRANK CZVIK, M.D. id SHERLYN CZVM I acknowledge the above General Release and Settlement Agreement has been explained to my client. I also approve the above as to form and content. " Neal S. Meyerwtorneys for DEFENDANT CITY OF CARLSBAD Dated: Dated: Charles S. Haughey, Jr., Attorneys for DEFENDANT WARD NORTH AMERICA, INC. 6