HomeMy WebLinkAbout1988-02-16; City Council; Resolution 88-371
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RESOLUTION NO. 88-37
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA APPROVING A SETTLEMENT
AGREEMENT AND ASSIGNMENT OF RIGHTS BETWEEN THE
CITY OF CARLSBAD AND A & S CONSTRUCTION IN THE
LAWSUIT PETER C. DAVID CO. V. CITY OF CARLSBAD
The City Council of the City of Carlsbad, Calif(
does hereby resolve as follows:
1. That certain settlement agreement between tl
of Carlsbad and A & S Construction Company, Inc., parties
lawsuit entitled Peter C. David Co. v. City of Carlsbad, 1
Exhibit A and made a part hereof, is hereby approved.
2. That the Mayor of the City of Carlsbad is hc
authorized and directed to execute said agreement for and
behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a Regular Meeti:
City Council of the City of Carlsbad on the 16th day of I
, 1988, by the following vote, to wit:
AYES: Council Members Lewis, Pettine, Mamaux and Lars01
NOES: None
ABSENT : Council Member Kulchin
ATTEST:
ALETHA L. RAUTENKRANZ, City CPerk
(SEAL)
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SETTLEMENT AGREEMENT
This agreement is entered into as of the date se
forth below by and between the CITY OF CARLSBAD, a loca public entity (hereinafter "CITY"), and A & S CONSTRUCT10
COMPANY, INC. a California corporation (hereinafter It
& SI,).
Recitals
WHEREAS, PETER C. DAVID COMPANY, a partnershi
Superior Court of the State of California for the Count of San Diego, Case No. N 36001, alleging payments to b
due on the storm drain project No. 3085; and
(hereinafter "DAVID" 1 I brought suit against CITY in th
WHEREAS, CITY then sued A & S on a cross-complaint
and
WHEREAS, A & S then answered the cross-complain and cross-complained against both DAVID and CITY; and
WHEREAS, A & S and CITY now wish to bring thi litigation to a halt without resort to further court action
NOW, THEREFORE, CITY and A & S stipulate and agre as follows:
Aqreements
1. in conjunction with this settlement, A & S shal
fully assign to CITY its right to equitable set-off agains
DAVID. (See Exhibit "A". )
2. A & S shall deposit $2,250.00 in trust with it attorney, Cary Richard Bond of the law firm of Hillye
& Irwin. Said amount shall be held by the law firm pendin
the final resolution of this matter from which no appea or motion is filed. Following trial or other fina
settlement of this matter between DAVID and CITY, Tc
Scheuveiller of A & S and Ronald Ball, on behalf of CITY shall submit to the law firm of Hillyer & Irwin the judgmen
in the above-referenced matter. In the event of a judgmer:
against A & S and/or CITY in excess of $2,250.00, the
the direction shall be for the law firm to submit a1
$2,250.00 by way of a check to CITY. In the event c
a judgment for less than $2,250.00, then the law fir
shall issue a check to CITY for the amount of the judgment
For example, if the law firm receives a final judgmer
from A & S and CITY that DAVID recovered $1,000.00, the the law firm shall issue a check to CITY for $1,000.00.
To the extent of any judgment against A & S and/c
CITY in excess of $2,250.00, CITY shall be fully responsibl
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to DAVID. To the extent of any such payment by CITY,
CITY may enter judgment against A & S only, minus the
$2,250.00 already contributed on behalf of A & S.
CITY voluntarily and knowingly waives its right
to recover said judgment from the corporation. CITY further
voluntarily and knowingly waives its right to attempt to collect said amount from Tom Scheuviller. CITY agrees
not to pursue collection of the judgment against A b S,
if any, against Tom Scheuveiller on any legal theory,
including but not limited to, fraud, successor in interest,
alter ego or single employer. CITY acknowledges that it is waiving its rights, if any, to pursue Tom Scheuveiller in any and all of his different capacities, including but not limited to, as an individual, as a sole proprietor
of A & S Construction, as a partner of A & S Construction
and/or as an officer, shareholder and/or director of A
& S Construction. CITY further agrees that it shall not
in any way transfer, for value or otherwise, any judgment
taken against A & S to any third party or related party.
3. CITY and A & S agree that they will enter into
a stipulated judgment whereby CITY can take judgment against
A & S for the amount of any judgment rendered in favor
of DAVID minus $2,250.00, which has already been paid
in as provided in paragraph 2. (See Exhibit "B".)
4. Tom Scheuveiller, as a representative of A &
S, agrees to cooperate freely and under reasonable terms
with CITY in preparation of CITY'S defense and cross-complaint against DAVID. Tom Scheuveiller agrees
to produce documents as requested by CITY, to the extent
they are in his possession. Tom Scheuveiller agrees further
to testify in this matter if called by CITY as a witness.
Mr. Scheuveiller's address is 413 Crystal Place, Seal
Beach, California 90740, telephone (213) 430-7962.
5. The parties to this agreement hereby declare that in executing the same, they have received full and
independent advice of legal counsel.
6. In the event of a dispute, claim or litigation based upon, arising out of or relating to a breach of
or an enforcement of any provision of this agreement,
the prevailing party in such dispute, claim or litigation
shall be entitled to recover its actual attorneys' fees,
costs and expenses which are reasonably incurred, from
the non-prevailing party.
7. If any portion of this agreement is declared
by a court of competent jurisdiction to be invalid or
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unenforceable, such portion shall be deemed severed fron this release, and the remaining part shall remain in full
force and effect as if no such invalid or unenforceable provision had been part of this agreement.
8. It is understood and agreed that this agreement
is not an admisison of liability on the part of any part)
or their agents, and is in compromise of a disputed claim.
9. This agreement shall be governed by and construe(
in accordance with the laws of the State of Californi;
and the laws of the United States of America prevailin! in the State of California.
10. Each party executing this agreement hereb:
warrants to all other signatory parties hereto that i
has heretofore obtained the necessary approval of it
Board of Directors, president, trustee, City Council o other authorized personnel of such party necessary t make this agreement binding upon it.
11. Each party executing this agreement hereb certifies that it has read all of this agreement and full understands the same.
12. This agreement may be executed in counterparts but shall only be effective when executed and delivere by all the parties hereto. When each of the parties heret
has signed and delivered a counterpart, each SUC
counterpart shall be deemed an original, and taken together
shall constitute one and the same agreement and shal
be binding and effective on all the parties hereto.
February
Dated: &am” 17 , 1988
Its “CLAUDE A. LEAIS, Mayor
Dated: January , 1988
A & S CONSTRUCTION CO., 11
BY Its
8. I L I 0 a
ASSIGNMENT
This assignment is entered into by and between CIT’
OF CARLSBAD (“CITY”) and A & S CONSTRUCTION COMPANY, INC
(“A & Sf’) as of the date signed below.
For good and valuable consideration received, A
S hereby assigns to CITY any and all of its right of set-of
against PETER C. DAVID COMPANY arising out of thos
transactions and occurrences giving rise to the actio
in the Superior Court of the State of California, Count
of San Diego, Case No. N 36001.
February Dated: %Famamy /7 , 1988
Fca
Dated: January 2 , 1988
A & S CONSTRUCTION CO., IP
BY Its
Lit f=; ?:$ ] j/- iq p9p 4 $ 1 p ,hi&,a aQ!3
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HILLYER 8 IRWIN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
CALIFORNIA FIRST BANK BUILDING
530 B STREET- 14m FLOOR
SAN DlECO. CALIFORNIA 92101 i CRB/ba TELEPHONE 234-6121 1 864.9.2 (Area Code 619)
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(SPACE BELOW FOR FILIN(
Attorneys for Cross-Def endant
A & S CONSTRUCTION CO.
..
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO
PETER C. DAVID COMPANY, a ) Case No. N 36001
partnership, )
) STIPULATED JUDGMENT;
Plaintiff, ) AND ORDER THEREON
1
V. ) 1 CITY OF CARLSBAD, a local 1
public entity, ) 1
16 Defendant. )
)
17 1 AND RELATED CROSS-ACTIONS 1
18 )
19 COMES NOW Defendant/Cross-Complainant CITY OF
20 ("CITY" 1, by and through the Deputy City Attorney, R
21 Ball, and Cross-Defendant A & S CONSTRUCTION CO.,
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law firm of Hillyer & Irwin, and stipulate to judgment 23
& S"), by and through its attorney, Cary Richard Bonc
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A & S as follows: 24
1. It is agreed that to the extent that Plainti
26 C. DAVID COMPANY takes judgment against CITY
27 above-referenced matter, CITY shall in turn take' judgmen:
28 II A & S to the same extent, minus $2,250.00, which sum ha:
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of any judgment. 2
been contributed on behalf of A & S toward the sati!
3 DATED: January , 1988
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CITY OF CARLSBAD
BY Its
DATED : January , .1988
A & S CONSTRUCTION CO.
BY 3 Its
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Appro ed as to form and content.
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z.r z~g $Ly 14 Ronald R, Ball
ORDER
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It is so ordered.
DATED :
Judge of the Superior Court
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