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HomeMy WebLinkAbout2004-10-19; City Council; 17844; Ghezzi v. City of Carlsbad settlement% AB# 17,844 MTG. 1011 9/04 CITY OF CARLSBAD - AGENDA BILL TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN GHEZZI V. CITY OF CARLSBAD, ET AL. DEPT. HD. I CITY ATTY. @I CITYMGR. %& I RECOM M EN D ED ACTION : There is no action the Council needs to take. ITEM EXPLANATION: At its special meeting of August 17, 2004, the City Council discussed and approved a proposed settlement of the above referenced case subject to approval by all parties and the court. The parties have now settled this lawsuit and it has been dismissed. This item satisfies the Brown Act requirement to report the fact of a settlement of litigation approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. The General Release and Settlement of Claim (attached) is provided for public review. FISCAL IMPACT: The cost of the settlement is $60,000. EXHIBITS: General Release and Settlement of Claim RELEASE OF ALL CLAIMS I. PARTIES TO RELEASE In this Release: A. Ghezzi. The terrns "I", "me", "my", "myself', and "claimant" mean: Christine B. I agree to the terrns of this Release on behalf of myself and my spouse, dependents, heirs, executors, administrators, and assigns. C. The term "Releasees" mean: City of Carlsbad and Kristine Wilks, Inc., dba The Alley. D. "Releasees" also means the owners, officers, directors, agents, attorneys, stockholders, partners, employees, representatives, successors, and assigns of each person or entity named in Section I.C. It also includes DOE defendants and unnamed parties against whom Plaintiff may have made the claims set forth in the lawsuit referenced in Section IV. 11. SUBJECT OF RELEASE The subject of this Release is my claim and right as a result of the following incident, occurrence or transaction: An accident which occurred on or about June 21,2002 while walking on the sidewalk in front of The Alley bar, located at 421 Grand Avenue, Carlsbad, California. 111. RELEASE In exchange for payment to the undersigned of the total sum of Seventy Five Thousand Dollars ($75,000.00), (to be paid $60,000 from City of Carlsbad 1 2 and $15,000 from Kristine Wilks, Inc., dba The Alley), I agree to the terms of this Release and give up all present and future claims and rights I may have against Releasees or their property as a result of the occurrence described in Section 11. DISMISSAL OF PRESENT ACTION I direct my attorneys to dismiss with prejudice my Complaint, as to all named, fictitiously named and unnamed parties, in the case styled as follows: TITLE: Christine Ghezzi v. City of Carlsbad, et ai. COURT: Superior Court for the State of California, County of San Diego, North Countv Division CASE NO: GIN029390 V. WARRANTY A. Authority to Release. I represent and promise Releasees that I have full legal authority to sign this Release for: 1. Myself and all parties included in Section 1.B; and 2. All other persons or entities who have any interest in our claims or rights as a result of the occurrence described in Section 11. This includes any liens anyone may have on my recovery in this matter. B. Defend and Hold Harmless. I also agree that if anyone attempts to make a claim against Releasees (1) based upon my claims or rights as a result of the occurrence described in Section I1 or (2) based upon any lien or claim on my recovery, I will defend Releasees and pay all costs, expenses, or damages Releasees may incur because of such claim or lien. This includes the payment of attorneys’ fees and costs and the payment of any lien, settlement or judgment. 2 VI. FUTURE CLAIMS A. not only my present claims and rights but also my future claims and rights. This includes: Past, Resent and Future Claims. I understand that I am giving up 1. All past, present and future property loss or damage; 2. All past, present and future medical, nervous, emotional, and physical disabilities and injuries to all parts of my person and body; and 3. All past, present and future loss of monetary and social support, comfort and sexual relations caused by the occurrence described in Section 11. B. Give Up Future Claims Even Though Not Anticipated. I understand that I give up these future rights and claims even though I do not presently anticipate any need or reason for future claims and regardless of whether such future claims also result in part from some future traumatic injury or disease. C. Give Up Future Claims Knowing I May Have Future Needs. I understand and I agree to give up my future claims and rights knowing that I may in the future, as a result of the occurrence described in Section 11: 1. Need repair or replacement of my damaged or lost property; 2. Need medical attention or treatment; and 3. Suffer physical disability, disease, illness or injury. VII. WAIVER OF SECTION 1542 RIGHTS A. Section 1542. I also give up all of my rights under the provisions of Section 1542 of the California Civil Code, which reads: 3 I. A general release does not extend to claims which the creditor does not know or suspect exists in his favor at the time of executing the release, which if known by his must have materially affected his settlement with the debtor. B. Section 1542 Explained. I understand the importance, meaning, and legal effect of this Code Section and this entire Release. C. Take Chances as to Unknown. I know I may hme serious injuries or losses I know nothing about, but as to them, I take my chances. D. Unanticipated. I understand that Releasees would not have agreed to the terms of this Release if this Release does not cover property losses and personal injuries, illnesses or disease which may be presently unknown to me and unanticipated to me. Releasees Do Not Agree Unless Includes Unknown and VIII. NOT AN ADMISSION OF LIABILITY I understand that by settling, Releasees are not admitting liability for my injuries or damages, if any. To avoid further litigation, Releasees and I have agreed to this compromise even though issues of liability and damage remain disputed. M. READ AND REVIEWED RELEASE A. Read. I have read this Release or had it read to me. B. Understand. I understand the meaning and effect of this Release. C. Advised. I have been advised by my attorney or I have had an opportunity to consult an attorney as to the effect of this Release. 4 D. Agree. I agree to the terms of this Release. IN WITNESS WHEREOF, I have executed this Release on August 9 , California. APPROVED AS TO FORM: ._ Attorney for Plahtiff, CHRISTINE GHEZZI 5