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HomeMy WebLinkAbout2009-07-21; City Council; 19906; Settlement reporting Southwest & SwinkCITY OF CARLSBAD/CARLSBAD PUBLIC FINANCING AUTHORITY - AGENDA BILL 10 AB# MTG. DEPT. 19.9PJL 07/21/09 CA REPORTING OUT THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND SOUTHWEST CONSULTING GROUP AND THE ESTATE OF GEORGE SWINK DEPT. HEAD CITY ATTY. CITY MGR. 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/General Counsel by the City Council and the Public Financing Authority at its closed session of June 16, 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 $9473.98 for an insurance deductable expenditure made to recoup losses from the July 3, 2007 plane crash at the Crossings Golf Course. 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. Settlement of all Claims 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 COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D RELEASE OF ALL CLAIMS This RELEASE OF ALL CLAIMS ("RELEASE") pertains to those claims arising out of that certain aircraft accident involving a Beech E90 airplane, Registration No. N47LC, on or about July 3, 2007, in the city of Carlsbad, California ("Accident"), which claims have been asserted and brought by those persons and entities described as "RELEASORS" and fully identified by name below, against the following: Southwest Consulting Group, Inc.; George Swink, deceased; and the Estate of George Swink (all of whom hereinafter collectively are referred to as "RELEASEES"). The releasing parties (all of whom hereinafter collectively are referred to as "RELEASORS") are the following: Margret Atanasovski; Sofia East; Drago Atanasovski, Jr.; Karen Richards; Milano Atanasovski; Mark Atanasovski; The City of Carlsbad; The Carlsbad Public Financing Authority; St. Paul Mercury Insurance Company; San Diego Gas & Electric. In consideration of said RELEASE, the terms of which are more fully set forth below, the following sums are to be paid on behalf of the RELEASEES, out of the proceeds of U.S. Specialty Insurance Company Policy No. GA00155917-00, which sums, in the aggregate, constitute payment of the full remaining available policy limits of $932,601.66. The adult children of Drago Atanasovski expressly direct that the settlement proceeds otherwise payable to them in consideration for this RELEASE instead be paid to their mother, Margret Atanasovski. Accordingly, the settlement proceeds are to be distributed as follows: • To Margret Atanasovski, the sum of $500,000.00 • To Sofia East, the sum of $0.00 • To Drago Atanasovski, Jr., the sum of $0.00 Page lof 8 • To Karen Richards, the sum of $0.00. • To Milano Atanasovski, the sum of $0.00 • To Mark Atanasovski, the sum of $0.00 • To City of Carlsbad, and The Carlsbad Public Financing Authority, the sum of $9,473.98 • To St. Paul Mercury Insurance Company, the sum of $227,375.43 • To San Diego Gas & Electric, the sum of $195,752.25 Checks in payment of the U.S. Specialty Policy proceeds as set forth above to be made within 30 days of receipt by RELEASEES of all counterpart signatures of all RELEASORS. In consideration of said payments, RELEASORS, and each of them, hereby release and forever discharge RELEASEES, and each of them, including their respective heirs, employees, agents, assigns, stockholders, predecessors, successors, directors, officers, partners, representatives, insurers, attorneys, administrators, executors, subsidiaries, affiliates, U.S. Specialty Insurance Company and all insureds of U.S. Specialty Insurance Company under Policy GA00155917-00, of and from any and all claims, liabilities, demands, any and all manner of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, damages, loss, costs, fees, attorneys' fees or expenses, of any nature whatsoever, known or unknown, fixed or unfixed or contingent, which RELEASORS now have or may hereafter have on account of or arising out of the Accident, including but not limited to, claims by his heirs at law for the alleged wrongful death of Drago Atanasovski, claims for, and resulting from, alleged damage at The Crossings at Carlsbad, and claims for, and resulting from, alleged property damage to San Diego Gas & Electric power lines and support structures. Page2of8 RELEASORS understand and agree that this RELEASE extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, arising out of the Accident. RELEASORS are familiar with the provisions of Section 1542 of the California Civil Code, which provides as follows: "Section 1542. CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. 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." Being aware of said Code Section, RELEASORS hereby expressly waive any rights that they may have thereunder, as well as under any statutes or common law principles of similar effect extant in any jurisdiction. RELEASORS further understand and agree that this settlement is a compromise of disputed claims, and that the receipt of said settlement proceeds in the sums stated is not to be construed as an admission of liability by any of the above-named RELEASEES, by whom liability is expressly denied. RELEASORS realize and fully understand that this RELEASE will prevent them from making any further and future claims against the above-named RELEASEES for injuries or damages arising out of the Accident. RELEASORS know and fully understand that they may have damages not known by them and that the extent of the damage may be greater than they now realize and that by releasing the above-named RELEASEES they are taking a calculated PageSofS risk that the injuries and/or damages may turn out to be greater than the RELEASORS now believe. Nevertheless, acting with full possession of their faculties, it is RELEASORS' intention freely and voluntarily, to release the above-named RELEASEES from all liability, and this RELEASORS hereby do. In further consideration of said sums above-stated, each respective RELEASOR represents and warrants that he or she or it is solely responsible for any and all of their respective legal liens resulting from the events which are the subject of said claims and complaints, and that he or she or it will defend, indemnify and hold harmless the above-referenced RELEASEES from all claims brought by, through or under the respective RELEASOR, including, but not limited to, claims for payment of legal fees for services rendered in connection with the Accident. RELEASOR St. Paul Mercury Insurance Company represents and warrants that it will defend, indemnify, and hold harmless the above-referenced RELEASEES from all claims brought by, through, or under all persons and entities that are insured under Policy Number ZPP- 81L94378 issued by St. Paul Mercury Insurance Company. Each respective RELEASOR further represents and warrants that there has been no assignment or other transfer of any interest in any claim which he or she or it may have against the RELEASEES, and each respective RELEASOR agree to indemnify and hold harmless RELEASEES from any liability, claims, demands, damages, costs, expenses and attorneys' fees incurred by the RELEASEES as a result of any person's asserting any such assignment or transfer or any rights or claims under such assignment or transfer. RELEASORS agree that if they, or any one of them, should hereafter commence any suit against RELEASEES, or any one of them, arising out of, based upon, or relating to any of the claims released hereunder, or in any manner assert any of the claims released hereunder, then the Page 4of 8 party(ies) so acting agree to pay to the party aggrieved, in addition to any other damages caused to the party aggrieved thereby, all attorneys' fees incurred by the aggrieved party in defending or otherwise responding to said suit or claim. This RELEASE may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument, A facsimile or digital copy in .pdf format of this RELEASE or of any counterpart shall be deemed to constitute an original. Each person signing this RELEASE, whether signed individually or on behalf of any person or entity, warrants and represents that he or she has full authority to execute it on behalf of the person or entity on whose behalf he or she so signs. RELEASORS, and each of them, hereby acknowledge that he, or she, or it has had opportunity to be represented by independent counsel of his, her, or its own choice with regard to the subject matter of this RELEASE, and that he, or she, or it has executed this RELEASE having had opportunity to obtain the consent and advice of said independent counsel. RELEASORS further acknowledge that both they and their counsel have had adequate opportunity to make whatever investigation or inquiry they deemed necessary or desirable in connection with the subject matter of this RELEASE prior to the execution hereof. This RELEASE contains the entire agreement and understanding concerning the subject matter as between RELEASORS, on the one hand, and RELEASEES, on the other, and supersedes and replaces all prior negotiations, proposed agreements and agreements, written or oral, as between RELEASORS, on the one hand, and RELEASEES, on the other. RELEASORS acknowledge that no party, or agent or attorney of any other party, or any other person or entity, has made any promise, representation, warranty, statement or opinion whatsoever, express or PageSofS (f EXECUTED at _, California, this day of._, 2009. MILANO ATANASOVSKI EXECUTED at _, California, this day of__, 2009. MARK ATANASOVSKI EXECUTED at Carlsbad, California, this day of., 2009. CITY OF CARLSBAD and THE PUBLIC FINANCI Al Mayor of the CITY OF CARLSBAD and Chairman of the Board of THE CARLSBAD PUBLIC FINANCING AUTHORITY EXECUTED at Albuquerque, New Mexico, this day of__, 2009 ST. PAUL MERCURY INSURANCE COMPANY By: Judanne Calvelli Its: Director, Major Case Subrogation Page7of8 EXECUTED at _,California, this day of__, 2009 APPROVED AS TO FORM: DATED: , 2009 SAN DIEGO GAS & ELECTRIC By: Michael E. Moreno Its: Claims Manager LEVINE STEINBERG MILLER & HUVER Richard A. Huver Attorneys for Claimants MARGRET ATANASOVSKI, SOFIA EAST, DRAGO ATANASOVSKI, JR., KAREN RICHARDS, MILANO ATANASOVSKI, and MARK ATANASOVSKI APPROVED AS TO FORM: DATED: *7 ~ % , 2009 OFFICE OF THE CITY ATTORNEY FOR CITY OF CARLSBAD l/Jme Mobaldi, Deputy City Attorney Attorney for Claimants CITY OF CARLSBAD and THE CARLSBAD PUBLIC FINANCING AUTHORITY APPROVED AS TO FORM: DATED: , 2009 OFFICE OF GENERAL COUNSEL SEMPRA ENERGY WILLIAM A. CALDERS Attorney for Claimant SAN DIEGO GAS & ELECTRIC Page 8of 8