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HomeMy WebLinkAboutMesa Construction Projects Inc; 2006-01-03;SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into effective as of the date of signature on this Agreement by and between the CITY OF CARLSBAD (hereinafter referred to as "CITY") and MESA CONSTRUCTION PROJECTS, INC. (hereinafter referred to as "MESA"), with reference to the following facts: RECITALS WHEREAS, the La Costa de Marbella Homeowner's Association filed a lawsuit in the San Diego County Superior Court against the CITY alleging that it sustained damage as a result of a storm drain blockage on or about February 11,2003 at the La Costa de Marbella condominium complex located at 2401 - 2433 La Costa Avenue in the City of Carlsbad, County of San Diego, State of California; WHEREAS, the CITY filed a cross-complaint for equitable indemnity against MESA; WHEREAS, MESA filed an answer to the cross-complaint denying the allegations or obligations asserted therein; WHEREAS, the CITY entered into a settlement agreement with the La Costa de Marbella Homeowner's Association, and has paid to the La Costa de Marbella Homeowner's Association the sum of $100,000 to resolve its complaint against the CITY; WHEREAS, the CITY and MESA desire to settle fully and finally all claims or causes of action, known or unknown, existing on or behalf or against each other, including but not limited to, said civil action and the facts underlying the complaint of the La Costa de Marbella Homeowner's Association in that action. AGREEMENT NOW THEREFORE, in consideration: 1. The parties understand and agree that the execution of this Agreement constitutes a compromise of disputed claims involving legal and factual questions and is not to be construed as an admission of liability by any party. It is the desire and intention of the parties to effect a final settlement and resolution of all existing disputes and claims, regardless of their nature, arising out of the subject action. A. OBLIGATIONS 2. MESA hereby agrees to pay $ 10,000 to the CITY in full payment and satisfaction of all claims of any nature and kind, known or unknown, suspected or unsuspected, to exist for and against the CITY, and arising out of the subject action. The CITY will dismiss its cross- complaint against MESA, with prejudice. B. MUTUAL RELEASE OF CLAIMS 3. In consideration of the settlement of the above litigation and in consideration of the covenants, promises, terms, and conditions herein, the CITY and MESA fully release and forever mutually discharge each of their former and present officers, directors, shareholders, council members, employees, successors, predecessors, assigns, personal representatives, affiliates, attorneys, insurance companies, agents, heirs, and assigns, past and present, and each of them, hereinafter collectively referred to as "Releasees," of and from any and all claims, actions, causes of action, demands, rights, damages, losses, costs, attorneys' fees, loss of profits, expenses, and compensation whatsoever, which the parties now have or which may here after accrue, on account of or in any way growing out of any and all known and unknown and foreseen and unforeseen losses and damages and consequences resulting or which may result from the incidents and matters pertaining to the certain litigation entitled La Costa de Marbella Homeowner's Association v. City of Carlsbad, designated as case number GIC822967 on file with the Superior Court of the State of California in and for the County of San Diego, and the parties specifically release and acknowledge full satisfaction of any obligation on the part of the firms and persons herein released. 4. The parties acknowledge that there is a risk that subsequent to the execution of this Agreement, they may discover, incur or suffer claims which were unknown or unanticipated at the time this Agreement is executed, including, without limitation, unknown or unanticipated claims which arise from, are based upon, or are related to the certain litigation entitled La Costa de Marbella Homeowner's Association v. City of Carlsbad, or some part or aspect thereof, which if known by the parties on the date of this Agreement being executed, may have materially affected the parties decision to execute this Agreement. The parties expressly assume the risk of such unknown and unanticipated claims and agree that this Agreement applies to all such unknown claims. 5. The parties acknowledge that each is familiar with Section 1542 of the California Civil Code, which provides as follows: 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 to him, must have materially affected his settlement with the debtor. The parties hereby waive and relinquish all rights and benefits which each has or may have under Section 1542 of the California Civil Code, or the law of any other state or jurisdiction to the same or similar effect to the fullest extent that each may lawfully waive all such rights and benefits pertaining to the subject matter of this Agreement. 6. hi executing this Agreement, the parties have consulted with and had the advice of counsel or an attorney duly admitted to practice in the State of California and that the parties execute this Agreement after independent investigation and without fraud, duress, or undue influence. 7. The parties have not assigned or otherwise transferred or subrogated any interest in any claims which are the subject matter hereto and which they may have against each other and agree to indemnify and hold each harmless from any liabilities, losses, claims, demands, costs, expenses, or attorney's fees incurred by her as a result of any person or entity, including but not limited to underwriters and insurance carriers asserting such assignment or transfer. 8. This Agreement pertains to disputed claims and is the result of compromise. As such, it does not constitute and shall not be deemed as an admission of liability by the parties. 9. Each party shall bear its own attorney's fees and costs. C. CALIFORNIA LAW 10. This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the said State. The language in all parts of this Agreement shall be in all cases construed as a whole according to its very meaning. D. FURTHER ASSISTANCE 11. The parties shall hereafter execute all documents and do all acts necessary, convenient or desirable, in the reasonable opinion of Releasees to effect the provisions of this Agreement. E. SUCCESSORS 12. The provisions of this Agreement shall be deemed to obligate, extend to, and inure to the benefit of the parties, their heirs, successors, assigns, transferees, grantees, and indemnitees. F. INTERPRETATION 13. Wherever the context so requires, the singular number shall include the plural; the plural shall include the singular; and the masculine gender shall include the feminine and neuter genders. G. CAPTIONS 14. The captions by which the sections and subsections of this Agreement are identified are for convenience only and shall have no effect whatsoever upon its interpretation. H. SEVERANCE 15. If any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be deemed to be severed and deleted; and neither such provision, nor its severance and deletion, shall affect the validity of the remaining provisions. I. INTEGRATION 16. This Agreement (after full execution and delivery) memorializes and constitutes the entire agreement and understanding between the parties and supersedes and replaces all prior negotiations, proposed agreement and agreements, whether written or unwritten. The parties represent that no other party, nor any agent or attorney of any other party has made any promise, representation or warranty whatsoever. L. ENFORCEABILITY 17. In the event any party hereto shall commence legal proceedings against the other to enforce the terms hereof, or to declare rights hereunder, as a result of a breach of any covenant of condition of this Agreement, the prevailing party in any such proceeding shall be entitled to recover from the losing party its costs of suit, including reasonable attorneys' fees as maybe fixed by the Court. M. AUTHORITY 18. The individuals executing this Agreement on behalf of a public entity or other private business entity each represent and warrant that they have the legal power, right and actual authority to bind their respective principals to the terms and conditions of this Agreement. DATED: /-"i-o£. CITY OF CARLSBAD DATED: RONALD BALL City Attorney MESA CONSTRUCTION PROJECTS, INC. . President APPROVED AS TO FORM AND CONTENT: DATED:BARTLETT & LIEVERS Bradley A. Bartlett, Esq. Attorney for CITY OF CARLSBAD DATED:DEMLER, By:. RONG & ROWLAND, LLP . Green, Esq. Attorney for MESA CONSTRUCTION PROJECTS, INC.