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HomeMy WebLinkAbout1987-04-21; City Council; Resolution 9023L. .. 1 2 3 4 5 E 7 E 9 IC 11 12 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9023 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE CARLSBAD. WHEREAS, by recommendation of the City Attorney the Cit OF FUNDS FOR SETTLEMENT OF METZGER V. CITY OF Council of the City of Carlsbad, California has approved a settlement in the cases of Metzger v. City of Carlsbad: and WHEREAS, there are sufficient funds available in the liability self insurance reserve account to pay the settlement, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California as follows: 1. That the above recitations are true and correct. 2. That the expenditure of $15,000 from the liability self insurance reserve is authorized for the settlement of said cases. 3. That the mayor execute the Settlement and Release Agreement and the Assignment and Assumption of Obligations to make periodic payments, Exhibits A and B respectively, copies of which are attached hereto and made a part hereof. PASSED, APPROVED AND ADOPTED at a regular meeting of thl City Council of the City of Carlsbad, California, held on the 21st day of April , 1987, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson NOES: None ABSENT: None ATTEST: L. RAUTENKRANZ , .- 1. SETTLEMENT AND RELEASE AGREEMENT Pursuant to the Compromise of Minor's Claim, Superior Court of the State of California in and for the County of San Diego, Case No. N19507 and to the terms and conditions included therein, RUDOLF METZGER and SHERLEY METZGER, individually and as natural parents and as guardians ad litem for their minor child, ELIZABETH K. METZGER, hereby release and forever discharge the CITY OE CARLSBAD, the STATE OF CALIFORNIA and SAN DIEGO GAS & ELECTRIC COMPANY, their heirs, executors, administrators, agents and assigns and all other persons, firms or corporations liable, or who might be claimed to be liable from any and all claims, demands, damages, actions, causes of action or suits of whatso- ever kind or nature, and particularly on account of bodily injuries, known and unknown and which have resulted or may in the future develop, sustained by ELIZABETH K. METZGER, a minor born on the 27th day of August, 1979, or arising out of damage or loss, direct or indirect, sustained by undersigned in consequence of an injury on or about the 6th day of July 1981, at or near Carlsbad State Beach in the City of Carlsbad, California. This release expressly reserved all rights of the parties released to pursue their legal remedies, if any, against RUDOLE METZGER and SHIRLEY METZGER their heirs, executors, agents and assigns. RULOLE METZGER and SHIRLEY METZGER hereby agree to protect and hold harmless the CITY OF CARLSBAD, the STATE OE CALIEORNIA and SAN DIEGO GAS & ELECTRIC COMPANY against any claim for damages, compensation or otherwise on the part of said minor or any other party, growing out of or resulting from injury to said minor in connection with the above-mentioned incident and to reimburse or make good any loss or damage or costs that the CITY OF CARLSBAD, STATE OF CALIEORNIA and SAN DIEGO GAS & ELECTRIC COMPANY may have to pay if any litigation arises from said injuries, and RUDOLF METZGER and SHIRLEY METZGER hereby waive any and all rights of exemption, both as to real and personal pro- perty, to which they may be entitled under the laws of this or any other state as against such claims for reimbursement or indemnity by the CITY OE CARLSBAD, the STATE OF CALIEORNIA and SAN DIEGO GAS & ELECTRIC COMPANY. This Release expresses a full and complete settlement of a liability claimed and denied on the part of all parties, regardless of the adequacy of the above consideration, and the acceptance of this Release shall not operate as an admission of liability on the part of any party hereto. All rights given by Section 1542 of the Civil Code of California, which is quoted below, are waived by the undersigned. CIVIL CODE SECTION 1542: "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." By signing this General Release, we intend to give up and dis- charge all rights and claims to damages to property even though some of such damages may not have shown themselves at the time of acceptance of this settlement. I. Payments In consideration for the Release set forth above, the Insurer on behalf of the Defendants CITY OE CARLSBAD, STATE OE CALIEORNIA and SAN DIEGO GAS & ELECTRIC COMPANY, hereby agrees to pay the following sums in the designated manner: Periodic Payments, Insurer agrees to make payments as follows: $8,773.00 payable annually for a period of four (4) years. Payments to commence on August, 27, 2000 (at age 21) All sums set forth in paragraph I above constitute damages on account of personal injuries, arising from an occurrence, within the meaning of Section 104(a) (2) of the Internal Revenue Code of 1954, as amended. 11, Qualified Assignment The Parties hereto acknowledge and agree that the Defendants and/or the Insurer may make a "qualified assignment" within the meaning of Section 130(c), of the Internal Revenue Code of 1954, as amended, to BENEEICIAL INSURANCE GROUP HOLDING COMPANY of Defendants' and/or the Insurer's liability to make the periodic payments described in paragraph I herein. Any such assignment, if made, shall be accepted by the Plaintiffs without right of rejection and shall completely release and discharge the Defen- dants and/or the Insurer from such obligations hereunder as are assigned to the assignee(s). The Plaintiffs recognize that, in the event of such as assignment, the assignee(s) shall be their sole obligor with respect to the obligations assigned, and that all other releases that pertain to the liability of the Defen- dants and/or the Insurer shall thereupon become final, irrevoca- ble and absolute. 2 \. I. The Plaintiffs, ELIZABETH KATHLEEN METZGER, a minor, by RUDOLE METZGER, her Guardian ad litem, RUDOLE METZGER, individually, and SHIRLEY METZGER, individually, agree: A. That periodic payments under this Settlement Agreement cannot be accelerated, deferred, increased or decreased by the Plaintiffs. B. The Settlement Agreement and any subsequent assignment does assignee(s) that are greater than those of a general creditor; not provide to the Plaintiffs' rights against the parties or and C. In the event of an assignment, the assignee's obligation for payment of the periodic payments shall not be greater than the person originally liable (whether by suit or agreement) for payment and from whom the obligation was assigned. 111. Plaintiffs' Rights to Payments The Defendants, the Insurer, and/or assignee(s) shall not segre- gate or set aside any of its assests to fund the payments to Plaintiffs required herein, it being understood Plaintiffs are and shall be general creditors to the Defendants, the Insurer, and/or the assignee(s). Said payments cannot be accelerated, deferred, increased or decreased by the Plaintiffs and nor part of the payments called for herein or any assets of the Defen- dants, the Insurer, and/or the assignee(s) is to be subject to execution or any legal process for any obligation in any manner, nor shall the Plaintiffs have the power to sell or anticipate the same, or any part thereof, by assignment or otherwise. * IV. Right to Purchase an Annuity Plaintiffs agree that the Defendants, the Insurer, and/or any assignee(s) shall have the right to fund its liability to make periodic payments by purchasing a "qualified funding asset", within the meaning of Section 130(d) of the Code, in the form of an annuity policy from WESTERN NATIONAL LIEE INSURANCE COMPANY. The Defendants, the Insurer, and/or the assignee(s) shall be the owner of the annuity policy or policies, and shall have all rights of ownership. The Defendants, the Insurer, and/or the assignee(s) may have the annuity carrier(s), WESTERN NATIONAL LIEE INSURANCE COMPANY, mail payments directly to the Plaintiffs. The Plaintiffs shall be responsible for maintaining the currency of the proper mailing address and mortality information to WESTERN NATIONAL LIEE INSURANCE COMPANY V. Plaintiff's Beneficiary Any payments to be made after the death of any Plaintiff pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing at the time of settlement by said Plaintiff to the Insurer or the Insurer's 3 .. I. assignee(s). If no person or entity is so designated by said Plaintiff, or if the person designated by said Plaintiff, or if the person designated is not living at the time of the Plain- tiff's death such payments shall be made to the estate of the Plaintiff. Dated: 9- f- fy ELIZABE~ KATHLEEN~~TZGER, a minor by RUDOLE METZGER, her Guapd an ad--friSem Dated: 4- 977 Dated: 4-9-63 -SHIRLEY AETZGER, 'an"Yndividua1 We agree to the above settlement terms. CITY OE CARLSBAD, STATE OE CALIFORNIA and SAN DIEGO GAS ti Dated : &A7 EL BY ECTRIC COMPANY 4 ASSIGNMENT AND TO MAKE ASSUMPTION OE OBLIGATION PERIODIC PAYMENTS This agreement is made and entered into effect as of day of April, 1987 by and between CITY OE CARLSBAD the (hereinafter referred to as the "Assignor") and Beneficial Insurance Group Holding Company, a Delaware Corporation (hereinafter referred to as the "Assignee"). _I WITNESSETH WHEREAS ELIZABETH KATHLEEN METZGER (hereinafter referred to as the "Plaintiff") filed suit (hereinafter referred to as the "lawsui t1,) : WHEREAS, the above lawsuit was settled in accordance with the day of April Settlement and Release Agreement executed as the - 1987, which is incorporated herein and attached as Exhibit "A" (hereinafter referred to as the "Settlement and Release Agreement 'I) : WHEREAS, Assignor, under the Settlement and Release Agreement, is to make certain periodic payments to Plaintiff; WHEREAS, such payments constitute damages on account of per- sonal injuries or sickness within the meaning of Sections 104(a) (2) and 130(c) of the Internal Revenue Code of 1954, as amended (hereinafter referred to as the "Code") ; WHEREAS, Assignor, under the Settlement and Release Agreement, has the right to assign its liability and obligations to make certain periodic payments to Plaintiff within the meaning of Section 130(c) of the Code; WHEREAS, Assignor wishes to make such assignment and Assignee wishes to assume said assignment; NOW THEREPORE, in consideration of the covenants contained herein and for other good valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Assignor and Assignee agree as follows: ARTICLE I (1) Assingor hereby assigns and Assignee hereby accepts and assumes all of Assignor's liability and obligations to make the periodic payments to ELIZABETH KATHLEEN METZGER in the amount and at the times set forth in Paragraph I of the Settlement and Release Agreement and in accordance with the subject to applicable pro- visions of the Settlement and Release Agreement, which applicable provisions are as follows: Assignee shall pay to ELIZABETH KATHLEEN METZGER the periodic payments as shown on the attached SCHEDULE OE PAYMENTS, which is incorporated herein and attached as Exhibit ''B''. Assignee may satisfy the liability and obligations assumed herein by purchasing a single premium annuity policy from Western National Life Insurance Company. Assignee shall own said annuity policy if so purchased and shall provide the Plaintiff with a copy of any annuity policy so purchased and proof of payment therefore, with premium data deleted, when said policy is so issued. 2 (c) The liability and obligations assumed by the Assignee to make each of the payments in the amounts and at the times set forth in Paragraph I of the Settlement and Release Agreement shall be discharged Pro Tanto, upon payment of each amount specified in this Agreement. Each payment contem- - plated in Paragraph I of the Settlement and Release Agreement shall be deemed made upon mailing to Plaintiff a valid check in the amount due in a properly addressed envelope with postage prepaid to the address so designated by the Plaintiff, unless Plaintiff within fourteen (14) days after the due date of any payment notifies Assignee that any check so mailed was not received; provided that nothing herein shall relieve Defendants' Assignee from making such payment except actual receipt thereof by Plaintiff or his successor hereunder. IN WITNESS WHEREOF, the parties hereto execute this agreement SEAL By: Attest: .- City Clerk Title: Mayor 1 1 ss STATE OE CALIFORNIA COUNTY OF SAN DIEGO ) On this 22nd day of April , 19 87, before me, Claude A. Lewis personally appeared; that he a c k no w ledg ed h- Mayor described herein; and that he, as such executed the foregoing instrument for the purposes contained herein for and on behalf of City of Carlsbad . - .............................. * OFFlClAL SEAL * KAREN R. KUNDTZ t * NOTARY PUBLIC-CALIFOANIA SAN DIEM COUNTY * * * 2 My Comm. Exp. 91%. 27, 1989 2 .............................. SEAL BENEFICIAL INSURANCE GROUP HOLDING COMPANY ASSIGNEE BY BY . Attest: Secretary Title : Title : STATE OE COUNTY OF On this day of , 19-, before me, personally appeared; that they acknowledged themselves to be the respectively of BENEFICIAL INSURANCE GROUP HOLDING COMPANY, the corporation described herein; and that they, as such, executed the foregoing instrument for the purposes contained herein for and on behalf of BENEFICIAL INSURANCE GROUP HOLDING COMPANY. and and Notary Public Plaintiff hereby consents to and accepts said assignment and assumption of liability and obligations to make periodic payments as set forth herein.