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HomeMy WebLinkAbout1989-07-11; City Council; Resolution 89-226I, 0 c 1 /I RESOLUTION NO. 89-226 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED HAVINS V. WULLKOTTE 4 WHEREAS, after recommendation of the City Attorne] 5 City Council of the City of Carlsbad, California has deter 6 7 that it is in the City's best interest to settle the case ent Havins v. Wullkott; and 8 WHEREAS, there are sufficient funds available ir 9 liability self-insurance reserve account to pay the settleme: 10 NOW, THEREFORE, BE IT RESOLVED by the City Council o Dm sum yr? errng 7aQa OLV ooaa Z>Jf OI-Srr $2-1 ;:nE goas '585 +>ma u 0Z d 4-1 wv)o >NC k5 0 l1 11 12 13 14 15 16 /I 17 City of Carlsbad, California, as follows: 1. That the above recitations are true and correc' 2. That the City Council approves the settl( agreement attached as Exhibit A and the joint release agrec attached as Exhibit B and authorizes disbursement of $135,000 the liability self-insurance reserve account. 3. That the Mayor of the City of Carlsbad is hc 18 of the City of Carlsbad. 19. authorized and directed to execute said agreements for an on bc 20 21 22 l~ /I 23 24 25 26 27 28 i 0 0 1 2 3 4 5 6 7 8 9 10 l1 ll 00, $wm 92' <a;g umg OlLU ooaa Z>dZ 01-sn: maoE sk%a gz&- zoas >$sY 60 >.2q U: 'a1 12 13 14 15 16 17 PASSED, APPROVED AND ADOPTED at a Regular Meeting 0 City Council of the City of Carlsbad on the 11th day of i 1989, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and I NOES: None ABSENT : None ATTEST: ALETHA L. RAUTENKRANZ, City Clkrk (SEAL) 18 19. 20 21 22 23 24 25 26 27 28 * 0 -.. SETTLEMENT AQREEMEWT AND RELEASE .- THIS SETTLEMENT AGHEEMENT AND RELEASE ("beltlcr Agreement") is made and entered into thiG day of June, 1989 by and between GREGORY HAV1N.5, individually, CASSIF, LEE ANN HAVINS, a minor, KENbRA HAVINS, a minor, l BRANDON SORENSON, a minor, by Bnd through their Gwrdirtn Litem, GREGORY HAVTNS (the "Plaintiffs"), and BCE DEVELaYfiKNT, INC., a3 successor in IntcrcGt ta DAON CORPORATTON, PEPJlNSULA COVE CORPORATION, (rq eucce3oor in interest to LA COSTA LANU COMPANY, CI'AY OF CARLSBAD, CZTI SAN MARCOS, COUNTY OY SAN DIEGO, a political aubdivioian the State of California, and RICK ENCINEERINQ COMPANY (kk "Defendantsn). The Plaintiffs and Defendants are collectively defined as the parties or settling parties. * RECITALS -. A, Certain disputcs havc arisen between tho parties hereto resulting in a lawsuit for danlages for wrongful death, personal injuries and property damage in Superiar Court of the 8tate of California for the County San Piego, North County Branch, case Number N 38009 entit GREGORY HAVINS, individualJy, CASsIE LEE ANN HAVINS, a mi - KENDRA HAVINS, ,a minor, BRANDON HAVINS, a -Finor, by and through thx Guardiaq ad Liiem, GREGORY HAVINS v, THE CI TCARLSBAD, et. al., (the "A&tian") t -. - ." - "- .. BI A First Arr,ended complaint was filed in the Action on or about September a, 11388 by attormys Iraskias Nilgent, Newnham, Kane C Zvetina. The ConplainL WAS siyne Thomas P. Nugent. C. Ln the Action, Plaintiffs allege that they suffered injuries and loeses as a resulL of en autamobfle accident which occurred an or about December 17, 1686 in - County of san Diega, State of California, Plaintiffs all4 that Defendants BCE DEVELOPMENT, INC., as suCcGI;SL)r in interest to DAON CORPORATION, PENINSUTA COVE CORPORATION, successor in interest tu LA COSTA LANU COMPANY, CITY OF CARLSBAD, CITY OF 5AN MARCOS, COUNTY OF SAN DIEGO, a political subdivision af the State of California, and RTCE ENGINEERING COMPANY, and others, are liable for any urid nl injuries they suffered, and for- coalgensatory damages 3rd other relief. All allegations by Plaintiffs have been der by Defendants, who continue to deny such allegations. ThC allegations made by Plaintiffs in the Action are referred and incorporated by reference herein solely to set forth t allegations made, ant3 not as an Bdmission of any such allcgatione. t IIbI ,TO ,a,,? (1 ,- m A- i e @ ~- p, The parties desire to entsr into this settlement. Agreement to provide for certain payments and settlement and complete discharge of any and all claimk ti are the Subject of this cmxrrtnws, upan the ter~15 and conditionf; net forth herein. AdREEMENT ... " The Parties hereby agree as fallows! 1. Release and Discharge. In cgnsideration gf the puyrr.ents called for hex Plaintirf3 hereby completely release and forever discharq the Defendants, the insurence carrierv for Defendants (th "1nsurerGn), and all other persons, firms, and WrpOratiC whomsoever and each of them and their past, preaent and fUU,lre officers, directors, stockholders, attorneys, nger servants, representatives, employees, subsidiariea, affiliates, partners, predecessors and suecessor8 in interest, and assigns and all other. parsons, firms Or corporations with whop any of tho former Iidve been, arc I" or may hereafter be affiliated (hereinafter '%eleasees") and from any and all past, present or future bQdily and personal injury claims, wrongful death claims, loss of conswtium claims, rights, damages, costs, attorney fees, losses of services, losses ot earnings, future 111edica1 expenses, expenees and cmpen6atian of my nature whatsoe whether based on a tort, contract (express, implicd ar otherwise) or any other theory of recovery, urd whether- f compensatory or punitive damages, which the Plaintiffs nc have, or which may hereafter accrue or otherwise be acqui it7 any way growing out of, or which is the subject of the occurrence of an automobile accident on or about PeCGrttber 1986, at or near the intersection of Rancho Santa Fe Road Melrose Avenue, in the County of san Diego, Callfocllia, (herelnaftor "the Accident") , including without limitatia any and all known or unknown claims of bodily, persmal, of consortium and economic injuries to the PLainti.ff9, an the Consequences thereof, including but not limited Lo an OCCUrrenCe -. ." or otherwise,'which have resulted or nay resul from the alleged acts 6r omissions of the Defendants or t handlinq of any insurance claim or the defense of uI1y leg proceeding arising out of said occurrence or any vll them. The foregoing release ie intended by the setkli parties to be as broad as the parties can possibly create with respect tQ the allegations giving rise to the Action includes, but is not limited to, any liability whatsoever " future claim8 for wrangfu.13eath as a resu.lt vf this -2- .r "6 -*- = - Cr w's IS*;> (7 \ 4 i (a) which arises directly or lndirectly of or i3 fn any manner related to the Accident, or any damages resulting directly or incjircctly therefrom; (b) whicb arise8 diroctly or indirectly of or is in any manner related to the in urhs which war susta4ned by Plaintiffs GREGORY HAVINS, 1 ndivldualW, Ck LEE ANN HAVlNS, a minor, KENDRA HAVfrJS, a minbr, and Bm sORENSON, a minor, in or CLI Q result of the Accident, including, without limitations, th05el if any, which nay hcrcafter be acquired should the deaths of Plaintiffs re directly cjr indirectlyr from such injuries; (e) which arises directly or indirectly bf or IS in any manner related tg any af the mat.ters, occurrences u;' trrnBactians which were sot fort.), or whir.: could have been set forth in that certain First Am@nded Complaint filed September 8, 1988 by Plaintiffs, indudl without limitations, any and all claim for damages incl all claims for punitive or exemplary damages. This re1ease shall be a fully binding and corn1 settlement between the Plaintiffs and the Defendants an( Relearees and all parties represented by (51 claiming thi the Plaintiffa, save only the executory provisions of tf Settlement Agreement. 2. Payments. In Consideration wf the release set forth abw the Defendants or their Insurers, on behalf of the Defendants, hereby agree to pay PlaintiZfr the followinc in the fallowing manner: (a) InitiaJ Payments. upon execution or this Settlement: Agroement, t Defendants, Or their Insurers on the Pefanclsnto' behalf, agree to pay! iq TO GREGORY HAVINS, $132,569,00t ii. To CASSIE LEE ANN HAVINS, $100,0~0 iii. 2'0 KENDM HAVINS, $25,000.oOt pnd iV* TO BRANDON SORENSON, $2S,OQO.OO* The sums to be paid to minora CASSIE LFE HAVINS, KENDRA HAVINS and BRANDON SQREKSON will be paid the Superior Court of the State Gf California for the cc Of sari Diego for distribution IS ordered in a minors' compromise proceeding. -3- " -I -e 0 (b) Monthly 'Paymente, $ubject to the other terms and canditiono of t Settlement. Agreement, the Defendants, or their Tnsurcrs Defendants' behalf, hereby aqrte to pay, in the manner suggested by Section 3 herwf; i. Plaintiff CASSIE LEE ANN HAVTNS, thc Of Seven Hundred Fifty Dollars and I Cents ($750.00) per month, commenci~ August 16, 2902, and continuing for duration of Plaintiff CA681E LEE AN1 HAVINS? life, with twenty paus (24( months) guaranteed. If Plajntiff Ci LEE ANN HAVXNS dies prior to July 11 2022, than the remaining monthly pa: shall be raade to her Estate. ii Plaintiff KENDM HAVINS, the sum af Hundred Seventy-Five Dollars and No ($875.00) per inonth, CoTmencing May 2005, and continuing for the duratit Plaintiff KENDRA HAVINS' life, with twenty years (240 months) guarantee( Plaintiff XENDRA HAVXNS dies prior 4 April S, 2025, then the remaining rnc payIW!tts shall be made to her Estatr (0) ltuarp 8- Payment# i. Cash payments shall be mad8 ta Plaintlff . BRANWN $ORENSON in accordance with the following schedulo: At age 18 (s/27/96) - At age 21 (9/27/99) - At age 25 (9/27/03) - At age 39 (9/27/aa) - At age 3S (9/27/13) - At age 40 (9/27/18) * At agr 45 (¶/27/23) - At age 50 (9/27/28) - At age 55 (9/27/33) - At age 60 (9/27/38) - $ 5,600.01 10,000.0~ 20,000.nc 40,000. OI 100,000.01 lSb, 000. oc 30,000.01 50,000.04 75,000.0( 226,000.0( If PlaiPtiff BRANDON SORENSON dies prior September 27, 2038, then the remaining c; payments shall be made to his Estate. il, In addition to the monthly payments refe: herein, cash payments shall be made ta Plaintiff CASSIE LEE ANN HAVINS in accorc with the following schedule: 1 -4- UN-27-89 TUE q-.+.T. 9 a At age 16 (8/16/97) - '$ S,OOQb00 At age 21 (8/16/02) - 20,000.00 If Plaintiff CASSIE TXE ANN HAVINS Qfm pa to August 16, 2002, then the remaining cac payments shall be made to her Eetatr. At age 18 (8/1G/99) - 10.000.00 iii, In addition to the monthly payments refcrc herein, cash payments shall b8 mAde to Plaintift KENDRA HAVINQ in accordance wit1 fOllQWing schedule: At age 16 (5/5/00) - $ 10,600.00 At age 18 (9/5/02) - lS,OOO. 00 At age 21 (5/5/05) - 75,000.00 If plaintiff KENDKA HAVINS dies prier ta 1 5, 2005, then the remaining cash gaymanre shall be made to her Estate. 3, ASBigMePt and ASsumptiOn. It is expressly understood and agreed that non the recipients of any future payments provided for herei including Plaintiffs or any ,other person entitled to pay hereunder, shall have the riyht to: a. accelerate said future payments to any tim vary in any respects the payments; b, receive the present discounted value ef fu payments; c, have any control of the investmentu of fun from which payments are ma&: d, have any right to increa~e or deciease any paymenta: e. cban98 er modify the manner, mode ur methc meeting any payments or discharging any oblfgatiQns set in thin agreement. Releasees and/or their insurers may make a #qualified assignment# within the meaning of Section 130(c), of the Internal Revenue Code of 1954, as amended, of the releas and/or their insurers' Liability to make the perieUic payments required herein to SAFECo ASSIGNED BENEFITS CORPORATION, whose performance will be guaranteed by a c bond issued by SAFECo Insurance Company of America, whic Carries an A.M. Best rating of A+ (Superior). Any such assignment, if made, shall be accepted by the Plaintiffs without right of rejection and shall completely release discharge the Releasees and their insurers from such obligations hereunder as are assigned to SAFECO ASSTG?JEI The parties hereto acknowledye and agree that -5- __ -, , 7 <. r-.- '" .II r e a BENEFITS CORPWATION. The Plaintiffs recognize that, in Went: of such an assignment, the aasigncc shall be their obligor with rbspect to the obligations assigned, and th, all other releases that pertain ta the liisbility of the Releasea and their insurers shall thsreupm become final irrevocable and absolute. If thq liab$.lity tv make periadia payments is assigned by way of a wqualified assignment", Plaintffltu agree: be accelerated, deferred, increased or decreased by the releasor; rigbts against the assignee that are greater than those general creditor; and 3. The as~igner~e obligatfan for payment of t periodic paymento is no greater than the 6bliqation of t pereon originally liable (whether by suit or agreement) p4ym8nt and from whom the obligation was assigned, The Raleasees, their insurers or, if they OP I their assignee reserves the right to fund their liabllit make future payments by purchasing a "qualified funding asset," within the meaning of Section 130(d) of the Tnte Revenue Code of 1986 as amended, in the form of an annui cantract from SAFECO LIFE INSURANCE COMPANY, which carri A.M. Best rating of At (Superior), with CASSIE LEE ANN HAVXNS, KENDRA HAVINS and BWDON SORENSOW designated as ''limiting lives" under said contract. Payment8 made pur to said annuity contract shall operate os a ro tanto discharge of the payment obligations set fort %- above. T Releasees, the'ir insurera or, if they elect, their aasig shall be the owner af the annuity contract, and shall ha all rights of ownership. The Releasees, their inSUrerO if they elect, their assignee, may have the annuity curr SAFECO LIFE INSURANCE COMPANY, mail payments directly to Plaintiffs for the Assignee's convenience. The Plaintif Shall be responsiblr for maintaining the currency Of the proper mailing address and mortality information to SAFE LlFE INSURANCE COMPANY. 1. That periodic payments from the assignees c 2, The assignee does not provide to the Plain The monthly payrnentrs and lump mum paymente r@q by Seation 2 hereof are not, nor are they intended by tY parties to be, compensation for lost income, and th8 provieions of this instrument shall be construed to qivr @ffeUt ta such intent. 4. warrantlaa. Plaintiffs, and their attorneys of record war1 and represent: -6- " " -. - e e (a) The extent of the damages, if any, susta: by Plaint.itfr, or any of them, is unknown, and Plaintiff: understand, aqree and warrant that the release oontained thir Settlement Agreement uxtends tg all unknown or unanticipated damages, a3 well as ta thoae which are now known or disclosed; (b) Plaintiffs rely wholly on their Own jlldgl and that of their attorneys of record &a to the extent n damages they have sustained, or will sustain in the futu: Plaintiff$ hqve not been influenced b any statement mad( or on behalf of any of th@ other part r es t.0 this settlm (e) Plaintifis warrant that they have retain( Haskins, Nugent, Newnham, Xane & Zvetina as their attorn( and that these attorneys are the attorneys of their ChOic who are concluding this settlement on their behalf; (4) Plaintiffs warl‘ant ami ropresent that thc have been fully infomed and have full knowledge of the terms, conditions, and effects of thia Settlement Agreemi (a) Plaintiffs warrant and represent that thc have +ither personally or through their attorneys of recc fully investigated, to the Plaintiffs’ full satisfaction, the facts surr~unding the variour claims, aontroversies, disputes and are fully satisfied with the terns unci effec Of this Settlement Agreement. 3. Attoraey8r FBQs. Each party hereto shall bear their own attarnel fees an8 casts arising frm the actions of their awn COUI in CanneCtion with the Accident, thia Settlement Agreeme! and the matters and documents referred to herein, the obtaining af the appropriate court approval of this SettlemWk Aq33?Mmt, and the filing of a dismissal of tl Action, and all other r41ated mattcrs. 6. Requirwwnt ef trwful Claim. Far your protection, California law requires tl fOllQWifig to appear in this Settlement Fgreement: “It is unlawful tor (a) present or Cause to be presented any falsa at frtaudulent claim for a payment a€ a LOSS under a contract of insurance; (b) prepare, make or subscribe any writing, with intent to present or use the same, or allow it to Le presented or Used in Pupport of such alaim. Every person who violates any -7- ” ” - - 4B 0 provision of this section is punishable by imprisonment in the State PYIsOn not exceeding three ymre or by fine not exceeging $1,000 or by both m u 7. Disoharga of Obligatian. The obligation of the Defendants or their Xns (or any assiqnee pursuant to Seation 3 hereof) to make monthly er annual payment or lump 5um payment shall he discharged upan the timaly mail ins of a valid check in amount of such payment to the party to whom the payment required to bc made under this Settlement Agrement, rl~: Defendants OY InuurBrs (or any assignee pursunnk ta Section 3) shall be liable for failure af the appropria persons to receive any such check if said check is so F Should said monthly, annual or lump sum payments not b4 received by Plaintiffs, they should give notice to the assignee referenced in Section 3 above, and replacement c,hec;ks will be irsued. 8. Gm#rrl Relsrrs. . The parties hereby acknowledge and agree that releases set forth in Section 1 hereoll are general rele and they further expressly waive and assume the risk of and all claims for dahlages which exist as of this date which the parties do not know or suspect to exist, what through ignorance, overnight, error, negligence, or otherwise, an4 which, it known, would materially affect declaion ta enter into this Settlement Agreement. The parties further acknowledge that they have read the provisions of California civil Code Section 1542 and th Waive all rights thereunder, which Section provides: MA Q&n+x?al ralease does net extend to claim8 tho creditor db+m not kndw at 8uspeet to &Xist in him t at the time of axeouting the releamr which it known by mU9t Bavr materially affeoted hir srttlemant with the i&i;@F, E 9. Dblivery Of Ditlmisarl With Prdjudioe, Concurrently with the mutual execution of t.hi Settlment Agreement and upon Court approval in the min .compromise proceeding, counsel for the Plaintiffs will deliver to counrel for the Defendants an executed Dismi with Prejudice of the Action. The Plaintiffs have auth their attorneys to execute this Dismissal on thefr beha thereby authorize counsel for thr Defendante to file sa Dismissal and enter it as a matter of record. -8- 0 10. Acknowlebgent of cam P romise. The parties acknowledge that they have execute( agreed ta this settlement Agreem8nt"and mads or acccptecf papent: of the sum6 or other concessions Specified hereii B complete compromise of matters involving disputed iSsU1 law snd fact and fully n~isurrte the risk that the fact@ or may be other than they believe. 21. Warranty of capacity To Execute Agreement The Plaintiffs, an8 their attorneys represent warrant that no other person ~r entity has or has had an interest in the claims, demands, ~bligations, or caUWS action referred to in tnis becLlrwc~~t. AYXW~-*~ *hm+ th have tho sole right: and exclusive authority to oXecute t Settlement Agreement and receive the sums speciffed in i and that they have not sold, assigned, trat~fcrred, caw or otherwise dispQsad of any of the claims, demands, obligations, or causes of actions referred to in thio Settlement Agreement. Plaintiffs represent and warrant that with the Bxceptlon of a medical lien held by Yuma Rehabilitation against CASSiE LEE ANN HAVINS' recovery, the actions, ca of BctiQn, claims, demands, damages and cantrbvereim described herein are free and clear of any plsdgea, clai covenants, liens or encumbrances (inaluding, without limitation, any pledges, claims, covenants, liens ar encumbrances) whieh may exist, by way of subrogation or otherwise, in favor of any insurer, compensation fund or hoalth care pravidrr, or any of them. Plaintiffs furthr Warrant ana LW~L-C+~& th-C +h8~4 nro nri prsnns ntner th the Plaintiffs, who have had, now have or may bereafter acquire against the parties released by this Agreement, ally of them, any action, cause of action, claim, demand, damage or controveray whatsoever arising out 02 or relat in any manner whatsoever to the injuries and damngee sustained by Plaintiffs as a result of the Accident, et damages remalting directly or indirectly therefrom, Sho any lien, rubrogation, or indemnity claim he made agains Defendants or Releasees, baaed on ~grvices, gnads, or benefits provided to Plaintiffs, the Plaintiffs shall indemnify, defend, and hold harmless Defendants and el^ frgrn any and all such claims. 12- Pi8Uldsl.r Of Liability. The Plaintifta agree and acknowledge that thiy accept payment of the Sum6 or other concessions specifie this Settlement Agreement as a full and complete comprom Of matters involving disputed issues: that neither payme the SUlpS or other considerations by the Defendants or th -." -.._ -9- e JUN-27-83 TU€ 15:21 213 626 7944 P. 26 -. 1 a e Insurers on the Dermdantw behalf nor the negdtiationa f this settlement (including all statements, admissions, or communications) by the Defendants apd their aktcsrneys or representativas shall be considered admissions by any of parties; and that no past or present wrongdoing or liabil on the part of the Defendants or Insurers eha1.l be imglic such payment os negotiations, 13. Entire Agreement And Pucce330t!3 In Tntarea This Settlemerlt Ayrsament containn the entire agreement between the partie3 with regard to the matters forth in it and shall be binding upm and inure t.& the benefit of the executors, administrators, personal representatives, heirs, succeasors (includlng, withauk limitation, any successor Guardian ACI Litm or Guardian o the Estate of the Plaintiffs), and assign8 of each, 14. General Indemnification To SecVrO Performa In order to induce every party to CXQCUte and deliver thir Settlement Agreement, and to pay khe corraide tian-required hereby, Plaintiffs warrant that their heirs desce~dants., successore, assigns, or legal representative individually and collectively, shall perform all duties a &ligations hereunder and shall abide by each and every t condition, provision, covenant and agreement contained herein; and that Plaintiffs’ heirs, descendants, successo assigns, and legal representatives not parties hereto, sh, abide by, observe, and perform each and every tern;, cendition., agreement, obligation, covenant., and release contained herein the game as though such heirs, descendan1 successorB, assigns, and legal representative.were eignatc parties hereto] and Plaintiffs with the intentian of bind: themdelves (including therein their heirs, descendants, successm%, assigns or legal representatives) shall indemr and hold harmless every other settling party and their attorneys and sucn party’s SUCCCY~UL-s, assigns ur lcqsl representatives in the event of any breach of the faregoff 19. Caurt Approval. PlalntifYi3, an8 thsic- etttol-neyd shall cooperate with Defendants and their attorneys to secure e:our.t appro\ of this Settlement hgreoment, if required by Defendants, including determinations that the Plaintiffs and Defendant have entered into a fair and good faith settlement undar t terms specified herein and that the Plaintiffs are Compete and have comprehension of the terms of this Agreement. If minors compromise and release is required, then the Plaintiffs, and their attorneys will eo provide. Hovbver, all aucn proceedings shall include proper notic6 to BCE DEVELOPMENT, INC., as successor in interest to DAON -10- I I 1 !.I L -e <* - #:f s> ! I r T, i ,-. . e ,-, e 0 CORPORATION, PENINSULA COVE CORPORATION, as SUCCeSSO3; in interest to LA COSTA LAND COMPANY, CITY OF CARLsBAPt CTT $AN COS, COUNTY OF SAN DIEGO, a political subdivision the State of California, and RICX ENGINEERING CUMPAW utl their attorneysq 18, SUIYiVil Of R@pr63mt6tbM 8 The representations and warranties Bot forth l' Hhall mdum forcvar ana ahall survive any investigafior fry Ot on behalf of Plaintiffs, or any OZ thelfi, rcW"l;rlec any actual or constructive knowledgr on the part of ~laintiffg, or any of thenr, with rtcrpeat to the t.rt?th 03 rleeureCy of any 6tlCh representation or warranty, Plaint and each of them, agree to indemnify, hdld huL'mlcss and defend the Defendants, their Insurers, and their attorn6 record, from and against any and all actions, cause9 Of action, liabilities, loss or expense, includivg attome) fees incu'rred in the future by reason of the assertion C claims aris,ing out of tbis accurrence, either directly c indirectly, er by reason of any inaccuracy in any matter forth in this Settlement Agreement. 17~ ladennificatien, In the event that any action QF proceeding sha commenced or any claim aha11 be asserted which may entit the parties released by this agreement, or any of them, indemnification, written notice of such action shall be reasonably promptly after notice af tha claim. The part released by thia agreement shall at 811 times have exclu COntml of the defense of such action and shall have the exclusive right te prasecute, defend, compromise or sett same. Any judgment or award entered in such action, or settlement of such action, shall be conclusive and bindl the indcmnitore. ma AQreea8nt 8UP(LrBOdes Other Agr+&mantr. This Settlement: Agreement supercedas all prier agreements or understandings, whether wxittrn or oral, o Parties hereto relating to the subject matter hereof and incorporates the entire understanding of the parties wit respect thereto. Tn the event of uncertainty in the ter thia Settlement Agreement, such unceztbinty shall be re5 fairly and in accordance with the intent of tho parties set forth herein. t9. rnvalid ~rovisians. If, after the date hereof, &hy provision of th Settlement Agreement is held to be.illeqal, invalid or unenforceable under present or future laws affective dur -11- B JUN-27-89 TUE 15:22 Fa. -7 I - . - n e e the terms of this Settlement Agreement, such proJision sh be fully c;evu~-able. rn lieu thereof, there shall be add@ prnvi8iOn as similar in terms to such illegal, inJh1id OL uncrlforcxakla provision as may be possible and be leqal, valid and enfnrceable. 20. Canstruetion By californir Law, This Settlement Agreement is entered into in t? State of California and shall be construed md interpret< accordance with its lawe. 21. RepXesentati#n 02 cOmpE8henBion be DOoUmer Xn entering into this Settlement Agreement the setk'ling parties represent that they have relied upon th6 legal advice of their attwneys, who are the attorneys ol their own Choice and that the tarma; of this (3ektlcmont Agreement have been completely read and explalr~ed ts them their attorneys, and that those terms are fully understoc and voluntarily accepted by them. Defendants and all other parties released by tl Settlement Agreement, and their attorneys of record, makt warranty whatsoever as to the tax consequences of this Settlement Agreement or any portion thereof. Plaintiffs exclueivsly relied upon legal advice of their attorneys fi aro the attorneys of their choice as to the terms and efl of this Settlement ~greement and Plaintiff@ warrvt arrd represent that: they have not relied upon representations been influenced by any statement made by or on behalf of of the other parties to this settlenent. A division, if any, of the S'UMB of money to bo to Plaintiffs, between Plaintiffs, and anyone elas, phal: no way affect the validity of this Settlement Agreement z Release. 23. ~Uditianrl boouments. All, parties agree to cooperate fully and dxecui any and all supplementary documents and to take all additional actions which may be necessary or appropriate give full force and effect to the basic terms and intent thle Settlement Agreement, 23, Effectiveness. This Settlement Agreement shall became sffccti. imxediately upon execution and may he executed by duplic original. -12- 0 0 Executed at - ,"-r California, t' 1989. - day of "c.,"-' EREQORY H.Av~N3~vbi.dua~l y *" CASSIE LEE ANN HAVINS, by nfi , "- - through her Guardian Ad Lite GREGORY wrNs " "" XENDRA HAVINS, by and throtlc Guardian Ad Litem, GREGORY f RRANDQEJ #9PEWON/ by and thj GREGORY WAVINS - Ma. GuagClfan Ad Litem, HASRINB, NUGENT, NE-! I! aVETINAl XttOmbys at Law %"- ""_ THOMAS P. NUGENT JUN-27-87 TILE 15:23 -13- 2 13 636 7446 m 3 d ? -0 a DATED: - . BCrJ DEP&mPMRNT, 1NC.p OS .. . 8UCCQSbor in intereat to DAON CORPORlrTXON BY ,"" DATED: - - I- PENINBUXA COVE CORPORATIONt au~cmmor in intoreat to LA CO8TA &AND COMPANY BY - DATED: CITY 09 CARLSBAD BY_ -.*-, DATED 2 CITY OF BAN XAl2COB BY . -. DATED: ,- COUNTY OF BM DIEW, a 'POli SubdiviSioa 02 the 8tatO of Califod8 BY .. -14- bLUN-27-89 TUE 1S:24 I. - 2T3 626 7944 P ?A c: a e DATED: - RICK ENGXXSERINQ COMPANY BY""" -A- P JUN-27-89 TUE 15:24 .. -15- 2 15 .F,?L 5ra.A A . .Y e DECWRATIOW OF #! a OmIY8 7 I, Thomas P, Nugent, hereby etate: 1 am a member of Waskins, Nugent, Wwnbam, K4 Zvetina, the attorneys for Plaintiffs GREGORY MV'INS, individually, CASSIE LEE ANN HAVINJS, a minor, KENDRA H a minor, BRANDON MVINS, a minor, by and through thefx Guardian ad Litem, GREGORY HAVINS in Court Action No. 38009, I have reviewed the foregoing Settlement Aqr@c and each of its provisiens, and have advfsed my client execU%e it. I haW fully explained the foregoing 6ett Agreanent to my clientel who have acknowledged to me i they underatand it end its legal effect. lhe siynatu; Which appeat on the preceding pages are their true pej signatures. BX." 'I'HOI'US P. WCENT -16- JUN-27-89 TIrE 15:25 , .- 213 626 79- P. 2 0 e JOZm AND MUTUAL RELEA8B This Joint and Mutual Relrase (“Release*) is rnl and entered into by and between BCE DEVEmPMENT, 5NCl, at SUWSPPVL LA, intercot! ea molt connmmrohr, Dm1:blw.v a rnv CORPORATION, aa successor in interest to LA COSTA WD DIEGO, B pOlitica1 8ubdivirion of the State of Califsrni And RICK ENGINFRRZNQ COMPANY, COMPANY, CZTY OF CARLSBAD, CITY OF 8AN XARCOS, COUNTY OF RECITATIONB MD REPRE8ENTATZONB A, On or about December 17, 1986, an autamobi accldent oaGurred at or near the interseCtion ef Rancho Fe Road an4 Melrose Avenue, in the County ai! Ban Di4ga, California (hereinafter referred to as the “Accident”). 8. On 01 about September 8, 1988, Plaintiffs GREGORY UVTNS, individually, tASSIE LEE ANN KAVINS, a rn KENDRA HAVINS, a minor, and BRANDUN SORENSON, a mingr, b through their Guardian ad Litem, GREGORY HAVINs (nersina collectively (CPlaintiffsm) filed a First Anended Compls against BCE DEVEWPMENT, XNC., as wccessor in interest DAON CORPORATIQN, PENXNSULA COVE CORPORATION, as ~UFCCSS interest to LA COSTA LAND COMPANY, CITY OF CARISBAD, CIT SAb! MARCOS, COUNTY OF SAN DIEGO, a political sub4ivieian the State of Californie, and RICK ENGINEERING CQMPANY in Yuperiox Court of the state of‘ California, County of Ban Diego, North County Branch, case No, N 38009 (bereinafte *the Actionu) seeking damages for wrangfyl death, per5611 injuries and property damage arieing out of the Accident CI Defendants BCE DEVELOPMENT, INC., IS succe iA iAtOlcOEt to DAON CORPORATION, PENTN5TTTA CflVP, CORPQRAT as sudceseor in interest to LA COSTA LANO COMPANY, CITY CARLSBAP, CZTY OF SAN WiRCOS, COUNTY OF SAN DIEGO, a political subdivision of the state of caltfornla, and pr ENGINEERINO CQMPMIY have filed crosS-Gpmpl6intS against another in the Action, which fncluue claims for hdemnit ConWlbutian. 0, The parties to this Release, in order to protracted litigation and without determination of any 1: of the parties nereto raised in the Action nnd/or relate cross-complaints, and without the adrniselon OF liability arty hereto, wish to compromise the dispute as to a part es hereto on the terms and conditions 8st forth bel’ any I; . $5 \JN-2?-F%9 T\JE I?-i-, \ 0fi/;-a,'9 10: 54 E, B 8 'X Li? OWE p:zz M#W, THEREFORE, TW CONSIDERATXON OF THE FOLLOW1 REBPECTIVE AGRSEMENTS, PROVIBTONB AND COVENANTS, BCE DEVELdPKGNTt ZNC., aa ~UCG~SJ~O~ in interest to DAQN CORPORATION, PENZNSULA COVE CORPORATION, as succesBor in BAN MARCOSC COUNTY OF SAN PZEGO, a political t~ubbiV~8f.Qn tbb State el CalifQrnir, md RICK ENGINEERING CONPANT &GI AND RBLEWN! EACH OTHER A8 FOLLoW8: iRt6reat t9 LA COBTA L7U?D COMPANY, CITY OF CARLBBAD, CITI brsHrsBAt OP THE 8UBJECT CROBS-COMOWZNTB WITH PREJUDICE I. conwrrently with the execution and deliv.1 this RIlWtSe, BCE DEVEI'APMENT, INC., 8s ~ucceseor in ink4 in interest tb LA CQSTA LAND COMPANY, CITY OF CARL$BAD, C OF SAN MRCOS, COUNTY OF SAN DIEGO, 6 political subdivisi of the State of California, and RICK ENGINEERING COMPANY, each of them, by and through their atturneya of reaord herein, shill1 execute and file wikh the court Requestm to DfsmlSsal wZth prejudice of the$r respective crcss- camplainto. to DAoN CORPORATION, PEPIZNSULA .COVE CORPORATTON, as 6UCC8 2, Upon execution of this Release by the parti hereto and upon performanc~ of the terms and prOVisiOn5 P paragraph 3 above, and in consideration therefor, each uf parties to thi8 Release agree to bear as between themselv their OW^ cost6 and attorneys' fees arising out of either d8fense of Plaintiffs' complaint, or the defense or prosecutfuia or their respertivc; Cross-conp1ai.nt.s. 3. Each of ths parties hereto does hereby rale acquit and forever diwuhsrge each other party, their past present; officers, dlrectors, general and limiteQ partnere employees, agents, sue~essore and/or assigns, of and fron and all demands, and any and all manner of actisns md ca Of' action, suits, debts, dues, sums of money, accountings reckonings, bonds, bills, specialties, covenants, amtrac< Controversies, agreements, promises, variances, trespasse: damagee, judgments, executions, claims and demands whatsoever, in law or in equity, which they or any of the1 ever nad or now have or w~~ict~ their officere, directors, general and limited partners, employees, agents, successo and/or assigns, or any of them, hereinaft~ Can, eihall or have against each other, or any of them, f~r, upan er by reason of any matter, cause or thing whatsoever, arising Of the Accident anti giving rise to this Action and its related cross-complaints. 4, The undersigned represent, warrant and Cext that in signing this Release, they do so with full knowlet of any and a11 rights which they aay have, and they do no i -2 - I. m w rely and have not relied upon any representations ox staternenta of each other, or any of them, or their effic agents or repr~sentatives with regard to any of their fj OY aseerted rights, and they hereby assum the risk of € mistuKa of feet in connection with the true facta inVal\ with regard to any facts invQlved or with regard to any Which ate now Unknown to any of them. The partier heret further r,epresent, warrant and certify that they have Consulted and secured independent leqrl advice and cansultaticm in connection with this Rcrleaec and any ri$ which they may be relinquishing. 5, Xt ir turther expressly understood and agl that with regard tP the Action and its related cross- complaints, the parties hereta waive the provisions of Section 1542 of the Civil Code of CaliLornia which read: f 01 lows : #A gsnsral reloare doe8 nvt +stead to elaims I ais IWOP at tho time of axauuthg the r+Zeard which if ktr6wn by his must huvrl materially ail LLS 88ttlWnmt with the debtor." 6. Tn the event an action is brought to &nf@i any oi the pravisians of this Relea#@, the prevailing pc in said aatian shall be entitled to casts and attorneys, therein. tho CraaStOr deb$ aOt knQW eZ SUSp8G$ to 8%i8i 7. TDis Release lnay be pleaded as and i8 cs complete defense end bar to any action or proctsding of kind that way be taken by the partiam hereto on any cla; arising from or in connection with the Accident and the resulting Action or its related cross-complaintr, and tl parties hereto each agree to forebear from any lawsuit($ against each other crrfsing from or in any way rrlatcd tc Action and/or gts related cross-complaints except to en1 the provisims of this RelUCIQC. 8, Thio Release is a cornpremise settlement agreement and is not to be construed as, nor is it inter to be, an admission of the liability of any of the partj hereto, and each or said partiat3 expressly denies liabil of any kind arlaing from or in connection with the Acci~ or the Action or its related cross-aamplainta, 9. Each signature hereon fi oonditional upan in consideration of all othw signatures reeireQ hereir it if4 understood and agreed that thim Release muy be Si(: , in several counterparts, each 4f which shall be deemed I an original, but all ef which taken toyather sha1.l cons1 one and the same document. I -3- &J u E 15:14 I -. a w 10. This Release contains the entire agreement between the parties hereto and PQ addition or FodifiChti any term or provision ahall be effective unless set fart writing and signed by 413. of the gar*.fes. 11. Except where the intent of the parties to Release is materially affected thereby, if any part of provision of this Release or the application thereof to person or: circumstance rhall to any axtent be invalid 01 UnenforGeabl@, the remainder of thh Release and the application of such part or provioion to persons ~r circum6tances other than those to which it is held fnva! uneniorceablr snall not be afrecfed thereby and each tcl prOViSim of this Release shall bs valid and enforceabl6 the fullest extent penaitted by law. 12. This Relea3e shall be interpreted and cant in accordance with the laws of the Stutc of California. 13. This Relsarsr shall be binding upon and sh; inure t0 the benefit of the heirs, oxrautare, adminiatrc SUCCeSSOrS and assigns of the partie8 hereto. I# WITNE88 IOEIERZDB, thi0 Rslease has been exc( as Of the date first set forth above. BC1 DzVELoPmm, LNQ*r auccamlrar in Intareat 4 DAOW CORWU9ION DATED: By : . .- Tit". PENT#UUW COVE CORPORAl *IS ~uoo~ec~e# in 5at.r~ &A coem tlsNb COXPANY DATED; - BY : Title: CITY OB CARLBBAD DATED: - .-a By : Title: _____ "._." -4- 'n >.. , 3-7 .cc " t Y -0 0 CITY OF BAN MARC08 DATED: " By : Title: -ry " COUNTY 03' BXN DIEGO, a politics1 rubdivision c tbe stat+ of CalifQrnic DATED: , & BY8 Titla: RIG% EWZNSZRING CQMPM DATED: . BY : Title: APPROPtO A8 TO FORM 3wo COPJTEWE: BRON80N, SRdN80# & MCXIWNON By : SHELDON Jd WARREN Attorneys for BCE DEVELOPMENT, WC., 14 nu=edbabP in interant to DAON CORPORATION, and PENZNSWA COVE CORPORATTON, ae BUCC~SBO~ in interest to LA COSTA LAND COMPANY NBIL, PmOTTI PERXXNBl BROWN c PWX By : ROGgR G, PERXINS- Attorneys for CITY OF CARLSBAD j4-2?-89 TU€ 15:4.s -5- .- . ~ ~~ F. z. t. 0 e LA# OFrZCE8 OF JOHN Cm BARBER By : JOHN C. BARBER Attorneys for CITY OF SAN MARCOS &MYD Mw HARMOM, JRm, County C~un~al DANfEL J.,W&tLACE, Chisf Deputy Uounty Counsel BUSAN A, CmITREt, Deputy County Counsel By: SUSAN A. CRABTREE Attarneyo for COUNTY OF SAN DIEGO, a political subdivision of the $tate of California EDWARDB, WITB & SOOY BY 8 MICHAEL M. EDWARDS AttQrr¶G?Y6 for RICK ENGfWEERTNa WMPANY sjw/30108/o/h 1 -6- 6 7344 - 4 A.