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Home My WebLink About2009-06-23; City Council; 19872; Goship Air LLC Jaxair LLC settlementsCITY OF CARLSBAD/CARLSBAD PUBLIC FINANCING AUTHORITY - AGENDA BILL 18 AB# MTG. DEPT. 19,872 06/23/09 CA REPORTING OUT THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND GOSHIP AIR LLC, JAXAIRLLC, ETAL. DEPT. HEAD CITY ATTY. 4^ CITY MGR. ///v__ RECOMMENDED ACTION: There is no action to be taken by the City Council or the Carlsbad Public Financing Authority. ITEM EXPLANATION: The parties have now settled this issue under the authority given to the City Attorney by the City Council and the Public Financing Authority at its closed sessions of June 9, 2009. This item satisfies the Brown Act requirement to report the fact of a settlement approved in a prior closed session and makes the terms and conditions of the settlement available to the public. FISCAL IMPACT: This settlement will reimburse the City/Carlsbad Public Finance Authority in the amount of $15,000 for the expenditures made to re-grade the Crossings Golf Course after the plane crash. ENVIRONMENTAL IMPACT: Reporting out the fact of Settlement is not a "project" within the meaning of CEQA and therefore environmental review is not required pursuant to CEQA Regulation 15061(b)(3). EXHIBIT 1. Full Release Settlement Agreement DEPARTMENT CONTACT: Ron Ball 760-434-2801 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D M \ FULL RELEASE FOR AND IN CONSIDERATION OF the payment of Fifteen Thousand Dollars ($15,000.00), in the form of a check made payable to "City of Carlsbad," the receipt and sufficiency of which is hereby acknowledged, the CITY OF CARLSBAD, and the CARLSBAD PUBLIC FINANCING AUTHORITY ("Releasors"), for themselves and their representatives, directors, officers, employees, agents, insurers and assigns, to the fullest extent allowed by law, hereby release and forever discharge JAXAIR, L.L.C., GOSHIP AIR, L.L.C., THE ESTATE OF JOHN CHARLES FRANCIS, THE ESTATE OF J. ANDREW GARRATT, CREWSOURCE, L.L.C., CREWSOURCE, INC., KIPP NELSON, STEVEN SHAFRAN and their insurers, GLOBAL AEROSPACE, INC., and its coinsurers and all underwriters subscribing to the policy, and all of their respective parent, subsidiary, predecessor, successor and otherwise related corporations, trusts and affiliates, and all of their respective partners, trustees, officers, directors, employees, agents, attorneys, insurers, reinsurers, and personal representatives, and all of the heirs, successors and assigns of all of them, without reservation, known or unknown (the "Released Parties"), of and from any and all liability, claims, demands, actions and causes of action which the Releasors may now have, hereafter have or claim to have, known or unknown, which the Releasors may have sustained or may hereafter sustain as a result of or consequence arising out of or in any way related to the aircraft accident at McClellan-Palomar Airport in Carlsbad, California on January 24, 2006 involving a 1994 Cessna Citation 560 aircraft, FAA registration number N86CE, which was owned by GOSHIP AIR, L.L.C. and operated by JAXAIR, L.L.C. at the time of the accident (the "Accident"). IN FURTHER CONSIDERATION OF the payment set forth in this Full Release, the Releasors represent and agree as follows: A. Releasors understand and agree that the payment of Fifteen Thousand Dollars ($15,000.00) provided herein is made in compromise and settlement of disputed claims, and that no statement, whether oral or in writing, or action by or on behalf of any of the Released Parties, either prior to or in connection with this compromise and settlement, shall be deemed or construed to be an admission by any of them of the truth or falsity of any matter pertaining to any claim, demand or cause of action referred to herein, or an acknowledgment by them, or any of them, of any fault or liability whatsoever to Releasors or to any other person or entity in connection with any matter or thing. B. Releasors understand and agree that the payment of Fifteen Thousand Dollars ($15,000.00) is the entire and only consideration for this Full Release, and it is intended by the Releasors that this Full Release shall not be subject to any claim of mistake of fact or law by the Releasor, and that it expresses a full and complete settlement of liability claimed and denied, and is in all respects intended to be full, final and complete. C. Releasors recognize and acknowledge that there is a risk that subsequent to the execution of this Full Release, Releasors may claim or suffer monetary or other losses, or damages which are in some way caused by or related to the Accident, but which are unknown and unanticipated at the time this Full Release is signed; and further, that there is a risk that the Page 1 of 5 FULL RELEASE damages presently known may be or may become more extensive than Releasors now expect or anticipate. Releasors accept these risks and agree that this Full Release shall apply to all unknown and unanticipated results of the Accident as well as those that are now known or anticipated. Releasors therefore expressly waive any and all rights and benefits conferred upon the Releasors by any law, statute or judicial decision which provides that a general release does not extend to claims which a releasor does not know or suspect to exist in his or her favor at the time of executing a release. D. Releasors represent and warrant that they are, or are duly authorized to act for and on behalf of, all of the persons and entities entitled by law to recover for any damage to Releasors' property arising from or resulting from the Accident. Releasors therefore agree to defend, indemnify and hold the Released Parties harmless if any person, firm, corporation or other entity shall assert or attempt to assert any claims, demands, liens, liabilities, actions or causes of action against any of the Released Parties for, arising from or in any way connected with any losses sustained by the Releasors resulting from or in any way related to the Accident, or payments made to the Releasors pursuant to this Full Release, including claims for contribution or indemnity. E. Releasors further understand and agree that they shall be responsible for the payment of all of their own fees, costs, and expenses of any kind whatsoever arising out of or in any way related to the Accident, including any that may arise after the execution of this Full Release. F. Releasors further agree to defend, indemnify and hold the Released Parties harmless from and against any and all present and future claims, demands, liens, liabilities, actions and causes of action arising out of or directly related to any property damage Releasors may have sustained as a result of the Accident. G. Releasors further agree to execute and file the closing pleadings necessary to dismiss with prejudice all of Releasors' claims set forth in the case captioned City of Carlsbad, et al. v. Goship Air, LLC, et al. Civil Action Number 08-cv-2166-LAB-POR, in the United States District Court for the Southern District of California and to obtain an order of dismissal of that Civil Action, with prejudice. H. Releasors further agree that this Full Release shall be governed by and construed in accordance with laws of the State of California, and that any action arising out of this Full Release shall be brought in the state or federal courts in the State of California. I. The Releasors represent and warrant that the Releasors have had sufficient time and opportunity to review this Full Release and to consult with the counsel, professionals, and/or representatives of their choice regarding this Full Release and matters related to the Accident, and that the undersigned individuals executing this Full Release on behalf of the Releasors are fully competent and have the specific authority of the Releasors to do so on behalf of the Page 2 of 5 FULL RELEASE Releasors, have read and understand the content and legal effect of this Full Release, and have freely executed the same. APPROVED AS TO FORM AND CONTENT: BYRNE, KNUDSEN & WHITE, LLP By i »wmro\i "J Thomas J. Byrne \j Attorneys for Released Parties ATTORNEYS FOR THE CITY OF CARLSBAD By_ J^rie Mobaldi Assistant City Attorney Attorney for Releasors Page 3 of 5 FULL RELEASE DATED this 24tb day of June _, 2009. CITY Title: Print Name:. Claude A. Lewis STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, HEREBY CERTIFY that (V 'KpflQJ Y that ( b>a Notary Public ft. in and for the State aforesaid, DO . who is personally known to me to be the Representative of CITY OF CARLSBAD whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the same instrument as his/her free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this of OfL , 2009. Notary Public My Commission Expires: POflLVX SHEILA RENAE C Commission * 1848471 Notwy Public • CaWornii San Diego County My Comm. Expires Miv 10.2013 Page 4 of 5 FULL RELEASE DATED this 24 tb day of June ,2009. CARLSBA FINANC By: Title: Chair Print Name:Claude A. Lewis STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) I, 3fr\<M IP *V>£- Ocb)orsa Notary Public in and for the State aforesaid, DO HEREBY CERTIFY that r.U.y\p- ft .Left's who is personally known to me to be the Representative of CARLSBAD PUBLIC FINANCING AUTHROITY whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the same instrument as his/her free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this day of H , 2009. Notary Public My Commission Expires:r\Qn\ \0 1Qn\ SHEILA RENAE COWAN Commission * 1848471 Notify Public • CiUfomii SM Dttflo County MyComn>.Exalf«sMa»1 Page 5 of 5