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HomeMy WebLinkAbout1979-01-16; City Council; Resolution 56531 2 3 4 5 E ‘i E 5 1C 11 l! 2 2 2 2 2 2 2 2 2 RESOLUTION NO. 5653 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEJKIENT BETWEEN THE CITY OF CARLSBAD AND SOUTH COAST ASPHALT PRODUCTS CO., INC. FOR A COMPROMISE SETTLEMENT AND MUTUAL RELEASE AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEPIIENT. The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. That that certain agreement between the City of Carlsbad and South Coast Asphalt Products Co., Inc. for a compromise settlement and mutual release, a copy of which is attached hereto marked Exhibit “A” and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 16th day of Januarv , 1979 by the following vote, to wit: AYES : Councilmen Packard, Skotnicki, Anear, Lewis and NOES : None Councilwoman Casler ATTEST : A 7. I ALETHA L. RAUTENKMXZ, City C.rk COMPROMISE SETTLElXf3NT AND L MUTUAL RELEASE This Agreement, made this -I L7' day of January, 1979, in San Diego County, California, by and between the City of Carlsbad, here and after called "Carlsbad" and South Coast Asphalt Products Co., Inc., here and after referred to as "Contractor", is a com- promise settlement and mutual release whereby the above-mentioned parties hereby extinguish their mutual rights and claims arising from their disputes and differences as to their rights, duties and obligations each has arising from the following facts: 1. Contract Number 1039, dated May of 1977, between the City andContractor provides for asphalt concrete overlay and chip sealing of various City streets wherei'n Contractor was the General Contractor and Asphalt Specialties (here and after referred to as Subcontractor) was the Subcontractor for the installation of the chip seal portion of the contract; 2. That after the installation of approximately 270,000 square feet of the chip seal on El Camino Real a dispute arose between Contractor, Subcontractor and City concerning the installation of the chip seal, and said disputeresulted in the City notifying Contractor that the installation was unacceptable and that before further work under the contract was performed, that . ' that portion of the chip seal would have to be repaired to the satisfaction of the City. Page One of Five Pages 3. City, Contractor and Subcontractor were unable to agree as to'the various responsibilities of the parties for correcting the problem, and how the correction would in fact be accomplished. the chip seal, however, were completed in a manner acceptable to ' The portions of Contract No. 1039, other than the City. is that portion requiring the installation of a chip seal on portions of El Camino Real and Palomar Airport Road. The only portion of the contract remaining unfinished 4. A lawsuit was filed on or about October 24, 1978 in the Superior Court for San Diego County, North County Branch, No. N 11299 entitled "ASPHALT SPECIALTIES, INC., a corporation, Plaintiff,versus SOUTH COAST ASPHALT PRODUCTS COMPAXY, a corporation, -INDUSTRIAL INDEMNITY COMPANY, an insurance corporation, CITY OF . CARLSBAD, an incorporated city and a political subdivision of the State of California, DON BROWN, Superintendent of Streets and Highways for the City of CarlsbadandDOES 1 through 20, inclusive, Defendants" seeking money damages from the defendants for Breach of Contract, Complaint against Public Works a Sond and for Negligence. NOW, THEREFORE, in consideration of: 1. Contractor's paying to Subcontractor the sum of $9,112.50 less that amount that Subcontractor owes to Contractor for materials; and 2. Subcontractor's dismissal of the above-mentioned lawsuit with prejudice as to all defendants; and 3. City's cancellation of the chip seal portion of Contract Page Two of Five Pages ,,' ' No. 1039 without any payment to Contractor for any portion of the chip seal work previously performed on El Camino Real, whether acceptable or not, together with the releasing in full of Labor and Materialman's Bond No. 779-7825 and Performance Bond No. YS 779-7825 issued by Industrial Indemnity Company as surety, and the acceptance of all other work and performance required of Contractor under the terms of Contract No. 1039 as being in com- pliance with the terms and conditions of said contract: and 4. City's releasing Contractor and Subcontractor from any and all rights, liabilities and damage with reference to the chip seal portion of Contract No. 1039; 5. Contractor's agreement to indemnify the City from any and all judgment against the City by Subcontractor arising out of these facts. THE PARTIES AGREE as follows: 1. Contractor shall pay to Subcontractor the sum of $9,112.50 less a sum that Subcontractor owes Contractor for materials, and Contractor shall thereupon obtain from Subcontractor . a dismissal with prejudice of the above-mentioned lawsuit; 2. The City shall cancel and release Contractor from its remaining obligation u.nder Contract No. 1039 to install chip seal: shall accept all other work previously done as being in full compliance with the terms and conditions of Contract No. and shall release Labor and Materialman's Bond No. 779-7825 and 1039; Performance Bond No'. YS779-7825 issued by Industrial Indemnity Company in accordance with law. Page Three of Five Pages 3. Each of the above-mentioned parties.on behalf of themselves, their ancestors, agents, servants, stockholders, employees, representatives, and successors hereby fully releases and forever discharges the other party and their ancestors, assigns, servants, stockholders, employees, representatives and successors from all rights, claims and actions which each party, and his above-mentioned successors now have, or may have in the future against the other party and their above-mentioned successors stemming from their differences and arising from the facts set forth above. 4. This settlement is a compromise of the above-mentioned claims and shall never be treated as an admission of liability by any pa-rty for any purpose. 5. This compromise settlement, notwithstanding Section 1542 of the California Civil Code which provides that "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," shall be a full, complete and total Settlement of said dispute,claims or causes of action. Such com- promise settlement shall act as a total release of any and all future claims which may arise from the above-mentioned disputes whether such claims are currently known, unknown, foreseen or unforeseen. The parties understand and acknowledge the signifi- . cance and consequences of such specific waiver of Section 1542, l and hereby assume full responsibility for any injuries, damages, I Page Four of Five Pages losses or mentioned liability specified dispute. LT PRODUCTS CO., INC- (Title) APPROVED AS TO FORM AND CITY OF CARLSBAD LEGALITY: RONALD C. PACKARD, Mayor City Attorney This is to certify that the foregoing Compromise Settlement and Mutual Release has been executed on behalf of the City of Carlsbad pursuant to authority conferred by the'City Council on January 16 , 1979, and the City consents- to the execution thereof by its duly a-athorized officer. Dated: /B /?7? BY dM. ALETHA L. RAUTENKRANZ, City prk Page Five of Five Pages