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HomeMy WebLinkAbout1987-08-18; City Council; Resolution 9207.. '. . I RESOLUTION NO. 9207 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF JACKSON v. CITY WHEREAS, by recommendation of the City Attorney of the Zity Council of the City of Carlsbad, California, has approved a settlement in the case of Jackson 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 $11,500.00 from the liability self insurance reserve is authorized for the settlement of said case. 3. That the Council accept the Full Release of All Claims Agreement, attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 18th day of August , 1987, by the following vote to wit: AYES: Council Members Lewis, Pettine, Mamaux and Larson NOES: None ABSENT : Council Member Kulch ATTEST: FULL RELEASE OF ALL CLAIMS GENERAL PROVISIONS FOR AND IN CONSIDERATION of the sum of Seventy-Six Thousand Five Hundred Dollars and No Cents ($76,500.00) to us, paid as follows: Fifty-Seven Thousand Five-Hundred Dollars and No Cents ($57,500.00)c-WELKER and PIRLOT, Two Thousand Five Hundred Dollars and No Cents ($2,500.00)--previous payment by WELKER and PIRLOT, and Sixteen Thousand Five Hundred Dollars and No Cents ($16,500.00) --CITY OF CARLSBAD in hand paid, receipt whereof is hereby acknowledged, we (I) do, jointly and severally for ourselves, our (my) heirs, executors, administrators, successors, and assigns, fully and forever release, discharge, and acquit BETTY WELKER, KEITH-ALAN PIRLOT and THE CITY OF CARLSBAD and their or its agents, servants, successors, heirs, executors, administrators, and all other persons,, firms, corporations, associations or partnerships of and from all claims, loss of services, expenses, and compensation whatsoever, which we (I) may or might have against them, or any of them, by reason of damages or injuries whatsoever sustained by us (me> and occasioned direct or indirectly by an incident occurring on and or about the 6th day of October, 1984, in the County of San Diego, State of California. Lucie Desneiges Jackson, being a single adult and plaintiff, and the undersigned heir RICARDO JACKSON, JR., minor son, also a plaintiff, by and through his Guardian ad Litem, RICARDO JACKSON, all plaintiffs in San Diego Superior Court Civil Action Number N29382, being the sole heirs at law of decedent, for the previously stated consideration of Seventy-Six Thousand Five Hundred Dollars and No Cents ($76,500.00) paid to said plaintiffs in the manner indicated above, do also agree hereby jointly and severally to indemnify, protect, and save harmless KEITH A. PIRLOT, BETTY WELKER, THE CITY OF CARLSBAD, including but not limited to their insurers, Transamerica Insurance Company, on account of any action that may presently or hereafter exist for the wrongful death of decedent and further agree to indemnify KEITH A. PIRLOT, BETTY WELKER, THE CITY OF CARLSBAD, and their respective insurers, including but not limited to, Transamerica Insurance Company, from any action by any person or party claiming under, or acting for said decedent or her heirs, executors, administrators, or successors (including but not limited to the children named above) The undersigned, RICARDO JACKSON, surviving spouse of and do further release KEITH A. PIRLOT, BETTY WELKER, THE CITY OF CARLSBAD and their respective insurers, including but not limited to Transamerica Insurance Company, from any action for wrongful death that may presently or hereafter reside in us. The undersigned is not only the parent but also natural guardian and guardian-ad litem of any child or children named above who are minors at the time of the execution of this Release. The undersigned *represents and warrants that the individuals named above are the sole known and prospective heirs at law of said decedknt . INTENTION OF TI+IS RELEASE This is intended as a full and complete release of all or any claims that we (I) may or might have by reason of a happening of the said incident, and accepting the sum indicated hereinabove we (I) do so in full settlement of any and all such claims, and intend to and do hereby release all of said persons a their or its agents, servants, successors, heirs, executors, administrators, and all other persons firms, corporations, associations, or partnerships of and from any and all liability of any nature whatsoever for all damage or injury to our (my) person(s) and properties specifically including all expenses to which we (I) may have been put, and also including all consequential damage to us (me) on account of injuries to others, injury or damage, whether the same are now known or unknown to us (me), expected or unexpected by us (me), or have already appeared or developed or may now be latent or may in the future appear or develop. APPLICATION OF RELEASE TO KNOWN AND UNKNOWN CLAIMS (CCP 11542) It is understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or Territory of the United States are hereby expressly waived. Said Section reads as follows: "1 542. CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO THE 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. " 0 It is further understood that this settlement is a compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said parties deny liability therefor and intend merely to avoid litigation and buy their peace. For said consideration, we (I) hereby assume the risk of any damages, injuries, or disability which may now be latent or unexpected, or which-may hereafter appear, develop, or occur as a result of said incident, and we (I) will hold said persons, and their or its agents, servants, successors, heirs, executors, administrators, and all other persons, firms, associations, partnerships, and corporations harmless from any and all claims therefor. HOLD HARMLESS CLAUSE - We (I) further agree to hold said persons or parties mentioned above harmless as to any claims made against him (them) by any retirement, worker's compensation or other compensation board based on any disability assessment or retirement claim heretofore made or to be sought by the undersigned or said compensation carrier or board as a result of injuries received in the incident which is the subject of this Release. That in the event any claim by a retirement, worker's compensation or other compensation board against persons or parties mentioned herein or for rights under any statute, the undersigned agrees to indemnify the persons or parties mentioned herein and all amounts awarded against them on account of the claim. DECLARATION OF RELEASOR We (I) further agree to pay and/or hold harmless said persons for any liens or claims previously or hereafter asserted for reimbursement for medical or treatment services rendered to me or us on account of the incident referred to above including, but not limited to liens or claims of providers of medical or healing art services, all claims for payment of medical benefits to the appropriate governmental agency, any other liens or claims on file and/or judgment creditors or assigned liens. are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this Release, it is understood and agreed that we (I) rely wholly upon our (my) judgment, belief, and knowledge of the nature, extent, effect, and duration of said injuries and liability therefore, and it is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed. We (I) further declare and represent that no promise or inducement or agreement not herein expressed has been made. to us (me) and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital. We (I) hereby declare and represent that the injuries sustained .- . We (I) hereby declare and represent that we (I) are (am) effecting this settlement and executing this Release after having received full legal advice as to our (my) rights from our (my) attorney. DISMISSAL OF LAWSUITS WITH PREJUDICE In the event that there is pending at this time in any court any suit or suits brought by us (me) to recover damages by reason of a happening of the incident hereinbefore referred to, we (I) hereby authorize and instruct our (my) attorney(s) of record in such suit or suits eo dismiss the same forthwith with prejudice. 7 APPROVED AS TO FORM: Charles C. Patton, Esq. *;,or,.refuses to cooperare cully, uLrsccLr, % aascm. uu~our~ eacor . -. . . :, , ,;. .?Cj. f:- -..--,-.-- . ... . e.. .&.' e,!. c.. I. ..-1. .. . .__ 4#04 till0 ~WSNYL A D*eetSS6km1. *bQILIIO- 4 ATTCRNEY'S PETAINER AND FEE AGREEMENT l?1*4 m-wa , nude this & day of dr,!o&,+., 145 I/ between G?zcLv ad SAMUEL E. SPITAL, A PROFESSIONAL CORPORATION, hereinafter designated as Attorney. 1. STATEMENT 6. SUBJECT OF EMPLOYMENT: Client, in consideration of Services to be rendered by Actorne to Client, retains and ploy Attor ey to represent him/her as Attorney in connection 2. ASSCCIATE COUNSEL: Client,understands and agrees Attorney may, in his cole discretion, associate with other counsel in prosecuting or defending Client's claim. 3. COSTS 6 OTaER EXPENSES: In the event there is no satisfactory settlemnt and a lawsuit is required, Client understands and agrees Attorney may, in his sole discretion, employ experts and investigators, and ogherwise incur expenses for and on behalf of Client, such as photo- copying, transcripts, telephone, costs for filing and serving documents, as well as travel expenses for Attorney. All costs and expenses ARE IN ADDITION TO ANY PEE, AND ARE TO BE ADVANCED AND PAID BY CLIENT. In the event Attorney pays any such dl~0unt6, Client agrees to reurburse Attorney upon request, within 5 days, and/or from that portion of my gross recovery that 10 payable to the client after calculation has been first made for Attorney's fees. 4. ATTORNEY'S LIEN: Client hereby gives Attorney a lien on the claim or cause Of action, On any sum recovered by way of settlement by Attorney or Cllent, and on My judgeDant that Uy & recovered for the sum provided herein as his fee and for any Costs or other expenses aS herein provided. Client understands and agrees he will make no settlement of the clab, or accept any sum or other consideration as compensation or rermbursement as for any claim herein. 5. CONTINGENCY FEE MATTERS: Attorney fees are not set by law, but are the resuAt of negotiation between Attorney and Client. A "Contingency" fee means that if thure is no recovery, there is no attorney's fee required. In connection with the employment of the Law Office of SAMUEL E. SPITAL, APC, when initiated hereinafter by Client in lieu ofa hourly fee, Client agrees to pay Attorney for his services 400 of an!, amQunts recieved or recovered if the mat-> is settled without a lawsuit filed, or 20 of any mounts recieved or recovered if ths utter is se , at SU, Diogo, Calif., by .nd & , hereinafter designated as Client, with k+ LJ:(;'~& CUL~,,,~ Q,Lh c 6. 1dW. ed with a lawsuit filed, Said continqency fee shall be based upon a gross recovery. P &. POWER OF ATTORNEY: Client hereby qives Attorney Client's Power of Attorney to file such bgd action(s1 as may be advisable, to execute all documents connected with Client's claim including pleadings, contracts, settlement agreements, releases, dismissals, orders and d.1 othe documents that Client could properly execute. 7. SCOPE OF SERVICES: Client understands and agrees that the servicee herein do not bclude UI appeal, if such an appeal should become necessary, in which case a new and seperau rgr-t shall be necessary. and do not include any legalservices which may have to be rendered to settle other Lasues vhicb may arise out of the within action. GUARANTEE regarding the successful termination of this matter, nor any expression relatad &tot 9. CDOPERATION BY CLIENT: Client agrees he will keep Attorney advised of his uhareaboutf at all times, appear on reasonable notice at any trial or hearing, or other legal proceedings 39 requested by Attorney, and to comply with all reasonble requests in connection with the prSpar- ation and presentation of this matter, even to the extent that it nkiy interfere with or tab slibstantial time away from his professional, business or personal affairs. BOTH CLIENT and ATTORNEY will use their obtaining the necessary evidence and attendance of witnesses. Client understands and agrees that the fees relate only to the within actio 8. FAV0WL.E OUTCOME NOT GUARANTEED: Client acknowledges that Attorney hS sade NO PR(wIa wf best efforts in furthering the purposes of this agreement, md in 10. SUbSTITUTION OR DISCHARGE OF ATTORNEY: Client shall retain the right to teminate the semi. Of Attorney at any time, for any reason whacsoever. However should Client discharge Attorney pr: to the time a recovery Is recieved (s)he will be responsible for paying Attorney the teaWruble volue of his services based upon the hours expended on behalf or Client, the legal md financia complexity of the matter and the experience, reputation and ability of Attorney. 11. WITHDRAWALOFATTORNEY: Attorney shall retain the right to resign as legal counsel at My tl for any of the following reasons: a) if Client fails or refuses to cooperate fully, directly, c indirectly, uith Attorney, in causing to be supplied, or supplying written documentation or Ord assistance or evidence when requested, to the extent related to this matter or dead necessary by Attorney; or b) if Client misleads, directly or indirectly, Attorney pertaining to My mter fact. C AGREED TO EACH OP THE PWWHS UWEr : Y i) f&.xd.bfirx vri tten documentation CT or? to cooperare ~UAAy, urrscrl)., (r :A A1 - UAAhIUAua*=dk- .._ - . . f~r dd"d of following r 1 if Client fails or refus ro*ameari *C b6' prclrlC e..~.i- 1- Ir 8800 tMtl9 WCMuc ?/wl msoa ~u~om~ eamt arm w-eeeo L/ ATTORNEY'S RETAINER AND PEE AGREEMENT THXS A6 lWHpi!P, made this &day of ficJPL, b 11.6 4 , at SM Diego, S.lif., by and between c I ~C~LO ~&.cc+& , hereinafter deedgnatea a8 Client, and SAHUEL E. SPITAL, A PROFESSIONAL CORPORATION, hereinafter designated a8 Attorney. 1. STATEMENT & SUBJECT OF EMPLOYMENT: Client, in consideration of Services to be rendered by to Client, retains and ploy Attor ey to represent him/her as Attorney in connection nith At tornen& ,&J J fl[.[L v' 6, , 1999, 2. ASSOCIATE COUNSEL: Client understands and agrees Attorney myr in his sole discretion, associate with other counsel in prosecuting or defending Client's claim. 3. COSTS 6 OTmR EXPENSES: In the'event there is no satisfactory settlenent and a lawsuit is required, Client understands and agrees Attorney may, in his sole diocretion, ernploy exper and investigators, and ocherwise incur expenses for and on behalf of Client, ouch as photo- copying, transcripts, telephone, costs for filing and serving docuplenta, as well as travel expenses for Attorney. All costs and expenses ARE IN ADDITION TO ANY PEE, AND ARE TO BE JbDVANCED AND PAID BY CLIENT. In the event Attorney pays any such amounts, Client agrees to rekrburae Attorney upon request, within 5 days, and/or from that portion of any gross recovery that io payable to the client after calculation has been first; made for Attorney's fees. 4. ATTORNEY'S LIEN; Client hereby gives Attorney a lien on the claim Or Cause Of action, 08l any sum recovered by way of settlement by Attorney or Client, and on any judg@wnt tbt my recovered for the sum provided herein as his fee and €or any costa or other expenses as here provided. Client understands and agrees he will make no settlement Of the claim, or Pccept any sum or other consideration as compensation or reimbursement as for any claim hetein. 5. CONTINGENCY FEE MATTERS: between Attorney and Client. A "Continqency" fee means that if thure is no recovery, there Attorney fees are not set by law, but are the result of negotiath - - is no attorney's fee required. In connection with the employment of the Law Office Of SAMUEL E. SPITAL, APC, when initiated hereinafter by Client in lieu of an hourly fee, clictnt: agrees to pay Attorney for his services 40 0 of any amounts recieved or recovered if ths mttm is settled without d lawsuit filed, or 45 0 of any amounts recieved or recovered if the matter is se&,ed with ii lawsuit filed. Said continqency fee shall be based /v 6. POWER OF ATM3RNEY: Client hereby gives Attorney Client's Power of action(s) as may be advisable, to execute all documents connectad upon a gross recovery& Attopaey to file ouch la& with Client's claim including pleadings, contracts, settlement agreements, releases, dismissalo, orders and documents that Client could properly execute. 7. SCOPE OF SERVICES: Client understands and agrees that the services herein do not appeal, rf such an appeal should become necessary, in which case a new and oeperats pigt shall be necessary. Client understands and agrees that the fees relate only to the wit and do not include any legalservices which my have to be rendered to settle other iofues may arise out of the within action. 8. FAVORAIILE OUTCOME MOT GUARANTEED: Client acknowledges that Attorney has lPade NO PRo)I(I% GUARANTEE regarding the successful termination of this matter, nor any expression related 9. COOPERATION BY CLIENT: Client agrees he will keep Attorney advised of hi8 whereabouts at a&$ times, appear on reasonable notice at any trial or hearing, or other legal proceedingo 88 requested by Attorney, and to comply with all reasonable requests in connection with the prepax- ation and presentation of this matter, even to the extent that it may interfere with Or taka aUa substantial tune away from his professional, business or personal affairs. BOTH CLIENT and ATTORNEY will use their best efforts in furthering the purposes obtaining the necessary evidence and attendance of witnesses. 10. SUbSTXTUTXON OR DISCHARGE OF ATTORNEY: Client shall retain hhe right to ter"inatt3 the SerVi~ of Attorney at any the, for any reason whatsoever. However should Client discharge Attorney pr: co the time a recovery Is recieved (slhe will be responsible for paying Attorney the reasonable vdlue of his services based upon the hours expended on behalf or Client, the legal and financid complexity of the matter and the experience, reputation and ability of Attorney. 11. WITHDRAWOFATTORNEY: Attorney shall retain the right to resign a6 legal counsel at any ti for any of the following reasons: a) if Client fails or refuses to cooperate fully, dxectly, o indirectly, with Attorney, in causing to be su?plaed, or supplying written documentstron or ora assistance or evidence when requested, to the extent related to thh matter or demed taeCeS6dry by Attorney; or b) if Client misleads, directly or indirectly, Attorney pertaining to any lPafcer fact. of this agreement, and in