HomeMy WebLinkAbout2004-04-06; City Council; 17577; P&D Consultants v City SettlementAB# 17,577
MTG. 4/6/04
DEPT. CA
TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF
THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN
P&D CONSULTANTS, INC. V CITY OF CARLSBAD
CITY OF CARLSBAD - AGENDA BILL
DEPT. HD.
CITY ATTY.
CITYMGR. ‘;itzs,
RECOMMENDED ACTION:
Report the terms and conditions of the settlement in the case of P&D Consultants, Inc. v Citv
of Carlsbad. There is no further action the Council needs to take.
ITEM EXPLANATION:
At the closed session of February 17, 2004 the City Council discussed and unanimously
approved a proposed settlement of the above referenced case. 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.
A copy of the Settlement Agreement and Mutual Release is attached as Exhibit A.
FISCAL IMPACT:
The cost of the settlement is $67,500.
EXHIBITS:
1. Release and Satisfaction
I
RELEASE AND SATISFACTION
KNOW ALL MEN BY THESE PRESENTS:
That for and in consideration of the sum of sixty seven thousand five hundred
dollars ($67,500.00) and other valuable consideration to P & D Consultants, Inc.,
receipt of which is hereby acknowledged, P & D Consultants, Inc., does hereby
acknowledge full satisfaction and payment of each and every claim and/or demand of
whatever kind or nature arising from the contract payment dispute under City Project No.
36991 for the construction of Aviara Community Park that now exists or may hereafter
accrue on behalf of P & D Consultants, Inc. against the CITY OF CARLSBAD, its
agents and servants, or any other person or persons, firm, corporation, association,
partnership or entity acting on their behalf, charged with responsibility for or liable directly,
indirectly or vicariously for reimbursement of the costs of change orders and
reimbursables in the design of Aviara Community Park, in the City of Carlsbad, County of
San Diego, State of California, and for which said costs the P & D Consultants, Inc.
claims that said CITY OF CARLSBAD, its agents and servants, at said time and place,
are legally required to reimburse, which liability is disputed and denied.
P & D Consultants, Inc. does hereby release and discharge said CITY OF
CARLSBAD, its agents and servants, and any other person or persons, firm, corporation,
association, partnership or entity acting on their behalf, of and from each and every claim
and/or demand of whatsoever kind or nature, arising or to arise from the contract
payment dispute in favor of the P & D Consultants, Inc., including all claims for money
by reason of or growing out of the aforesaid Aviara Community Park design work.
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AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT
AND PAYMENT, IT IS EXPRESSLY AGREED THAT:
1. All contract payment claims, past, present or future, are disputed and this full
and final settlement shall never be treated as an admission of liability or responsibility at
any time or in any manner whatsoever on the part of the parties herein released.
2. This release is expressly intended to cover and include all claims and attorney's
fees, several or otherwise, past, present or future, which can or may ever be asserted by
heirs, or otherwise, including all causes of action therefore, as the result of these contract
payment claims concerning the aforesaid Aviara Community Park construction.
3. P & D Consultants, Inc. understands and agrees that this is a full and final
release and that this release covers and includes all claims and attorney's fees of every
kind or nature, past present or future, known or unknown, suspected or unsuspected, and
all claims under Section 1542, Civil Code of California, hereby expressly waived, except
as to any future, as yet unknown claims, by third parties involved with the Aviara
Community Park project. P & D Consultants, Inc. understands said Section 1542
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."
4. P & D Consultants, Inc. will indemnify and save harmless said CITY OF
CARLSBAD and, 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 and/or demand of every kind or character, including all causes of action
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therefore, which can or may ever be asserted as the result of the Aviara Community Park
Design contract.
5. P & D Consultants, Inc. and CITY OF CARLSBAD shall be considered to
have agreed to all the terms of this release and that the above-mentioned sum is the
entire and only monetary consideration for this release.
6. This release shall bind and be binding upon the heirs, executors, administrators
and assigns of the P & D Consultants, Inc. and CITY OF CARLSBAD.
IN WITNESS WHEREOF, the CITY OF CARLSBAD and P & D
Consultants, Inc. does hereunto set his hand and seal this 307;y day
of ,ha&C(=) ,2004.
CITY OF CARLSBAD P&D CONSULTANTS, INC.
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO 1
):SS
Ort?%ZdPd&, ZLW~ before me,*&u44& .% &&p!&cz4/ , , notary
public, personally appeared CHU OCrkE pear proved to me
on the basis of satisfactory e to be the person(s) whose name(s) islare
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
NOTARY PUBLIC-CALIFORNI COMM. NO. 1269539 SAN DIEGO COUNTY
(\A's' TOIWM. EXP. JULY 9, 2004 4 3
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO )
):SS
On 3~30a+ before me, &VL7l4 PClrrL 8EM , notary
public, personally appeared RONALD R. BALL personally known to me or proved to
me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
Witness my hand and official seal.
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