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HomeMy WebLinkAboutWest Coast General; 1996-10-08;!I R . b e'. GE RAL RELEASE AND SETTLEMEN GREEMENT ,' ' West Coast General v. City of Carlsbad North County Superior Court Case No. N 66859 This Release and Settlement Agreement ( I1AGREEMENT") is made bi and entered into between WEST COAST GENERAL CORPORATION, 2 California corporation ("WEST COAST1!) , and the CITY OF CARLSBAD, e municipal corporation (vlCITYvl) , with reference to the followin? facts: RECITALS: (a) On 0u.r about February 24, 1995, WEST COAST filed e complaint in North County Superior Court alleging breach 01 contract against the CITY. The case is entitled West Coast General Corporation v. The City of Carlsbad, Case No. N 66859. On or about October 18 , 1995 , the CITY filed a first amended cross-complaint against PACIFIC BELL for breach of contract and express and impliec indemnity relating to the lawsuit. (b) WEST COAST and the CITY now wish to settle and resolvc specific claims, disputes and differences existing between ther arising from these actions, including a contribution from PACIFI( BELL, which will result in a full resolution of this dispute. COVENANTS : For good and valuable consideration, the receipt anc sufficiency of which is hereby acknowledged, WEST COAST and thc CITY hereby covenant and agree as follows: (1) Upon execution of this AGREEMENT by the parties hereto, the CITY shall pay the total sum of $115,000.00 to WEST COAST b] way of a settlement draft made payable to "WEST COAST GENERA1 CORPORATION and its attorneys, Marks & Golia." In addition, PACIFIC BELL has agreed, through independent negotiation an( 1 agreement with a EST COAST, to pay the su d of $20,000.00 to WES'I * COAST, by way of settlement draft also made payable to llWest Coast General Corporation and its attorneys, Marks & Golia1! Upon payment and deposit of those sums into the client trust account of Marks 6 Golia, LLP, for the benefit of WEST COAST, WEST COAST has agreed tc dismiss the CITY from its complaint with prejudice, and the CIT'I has agreed to dismiss PACIFIC BELL from its cross-complaint wit1 prejudice and will enter into a separate Release Agreement wit1 PACIFIC BELL. This AGREEMENT was reached through arms lengtl negotiations between WEST COAST and the CITY. Thus, WEST COASl will receive a total settlement amount of $135,000.00, apportionec $115,000.00 from the CITY and $20,000.00 from PACIFIC BELL. (2) Upon execution of this AGREEMENT by the parties hereto payment to WEST COAST by the CITY of its $115,000.00 obligation and in consideration of a waiver and release of attorneys fees an( litigation costs on the part of each of the parties hereto, WES' COAST shall file a request for dismissal, with prejudice, of it: entire complaint, and provide counsel for the CITY with a conformec copy thereof. The request for dismissal shall be as set forth ii Exhibit rlA*t hereto. (3) Upon execution of this AGREEMENT by the parties heretc and payment to WEST COAST by PACIFIC BELL of its $20,000.01 settlement obligation, the CITY shall file a request for dismissal with prejudice, of its cross-complaint against PACIFIC BELL, ani provide counsel for PACIFIC BELL and WEST COAST with a conformec copy thereof. The request for dismissal shall be as set forth i Exhibit "B" hereto. The CITY, WEST COAST and PACIFIC BELL wil enter into a separate release relating to the cross-complaint o which WEST COAST will receive a conformed copy. 2 .. (4) The 0 CITY and WEST COAST, a 9 signatories to this ‘ AGREEMENT, shall bear their own attorneys fees and litigation costs incurred in this action. (5) Except for the duties and obligations created by or arising from this AGREEMENT, and except for any warranties and/or guarantees or other legal obligations owed by WEST COAST to the CITY under the laws of the State of California or under the terms of Public Contract No. 3416 by and between the CITY and WEST COAS? dated July 26, 1994, and any written modifications thereto, and except for any latent defects in the construction of the Avenida Encinas extension project (exclusion of latent defect claims fron this release agreement shall not include claims by the CITY for damages which may be suffered by virtue of the garbage discovered during construction in the structural section of the roadway and not excavated at the CITY’S direction), and except for ani obligations, duties or damages that may independently arise fron WEST COAST’S alleged violation of Public Contract Code Sectior 4100, et seq., which is now the subject of a writ petition, Sar Diego Superior Court Case No. N 69002, and except for any present11 unknown obligations, duties or damages that may arise from ani presently unknown third party claims (other than subcontractors, materialmen and suppliers on the project) made in the future by ani other person, firm or entity with respect to the project, WESl COAST and the CITY hereby release, quit claim, hold harmless anc forever discharge one another, their successors, assigns, former and present officers, directors, shareholders, agents, attorneys, employees and representatives both in their individual anc representative capacities, from all claims, demands, rights, liabilities and causes of action of any kind, whether known 01 3 \ iF 9 ., unknown, and wh h arise in any manner from ne subject project and the subject matter of the action described in paragraph (a) of this AGREEMENT ("RELEASED MATTERS") . (6) The parties hereto intend and agree that this AGREEMENT shall be effective as a full and final accord and satisfaction and general release of all RELEASED MATTERS. In furtherance thereof, the parties hereto acknowledge that they are familiar with Section 1542 of the Civil Code of the State of California, which provides as follows: CIVIL CODE SECTION 1542: 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. (7) Each party expressly waives and releases any and all rights or benefits which such party has or may have with respect to the RELEASED MATTERS under Section 1542 of the Civil Code of the State of California. (8) In connection with the parties' waiver and relinquishment of the rights conferred by Civil Code Section 1542, each party acknowledges that it is aware that claims or facts in addition to, or different from, those which such party presently knows or believes to exist, may be discovered and that the release herein shall remain in effect as a full and complete release notwithstanding the discovery of the existence of any additional, new or different claims or facts. (9) This AGREEMENT is binding upon and inures to the benefit of the parties hereto and their respected successors, assigns and legal representatives, unless otherwise expressly set forth herein. Each party hereto represents and warrants that it has not heretofore assigned or transferred any claim, demand, right, 4 -9 liability or ca h se of action which is the s ?b ject of this AGREEMENT ' to any non-party to this AGREEMENT. (10) Each party hereto represents and warrants that it is authorized to enter into this AGREEMENT. (11) Each party hereto acknowledges that this AGREEMENT effects the settlement of claims which have been and are denied and contested, and nothing herein is intended to constitute ar admission of liability by any party hereto. (12) Each party acknowledges that it has had an opportunity tc review this AGREEMENT with legal counsel, and each party further acknowledges that it has read this AGREEMENT and fully understands its provisions and that no other representations or promises haw been made to induce the parties to enter into this AGREEMENT. Nc party to this AGREEMENT has relied upon any statement, representation or promise by any other party which is not containec herein in executing this AGREEMENT. (13) This AGREEMENT entails the entire AGREEMENT between the parties hereto relating to the subject matter contained herein anc supersedes all prior agreements, and understandings between thc parties. There are no agreements, representations, warranties, 01 statements whether oral or in writing, with respect to the subject matter of this agreement, except as expressly set forth herein. (14) This AGREEMENT may be amended or modified only by E writing signed by the party against whom enforcement is sought. (15) This AGREEMENT may be executed in counter-parts, all oj which taken together shall constitute one agreement binding upor all parties hereto. (16) Each party acknowledges and warrants that its executior of this AGREEMENT is free and voluntary. 5 - .I 4 (17) Each a party to this AGREEMENT shal i, cooperate fully in the 'f *execution of any and all other documents, and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms, conditions and intent of this AGREEMENT. (18) It is hereby acknowledged and agreed that this AGREEMENT was prepared by the CITY solely as a clerical convenience and accommodation to WEST COAST. The terms set out herein have been agreed to through the process of arms-length negotiations between the parties and in the event of any future litigation concerning the construction of this AGREEMENT, the parties hereto shall be deemed the joint drafters of all the terms and conditions set forth herein. (19) This agreement is made and entered into in the State of California and shall be interpreted and enforced under the laws of the State of California. Whenever possible, each provision of this AGREEMENT shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT shall be prohibited or deemed invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this AGREEMENT. DATED : /Q - 6 .- =/x DATED: /a * 7 - /) f& ' WEST COAST GENERAL CORPORATION X+"./ -- c 1 .7 -z -a --/ /E Elf/// A DANA FERRELL, President 6 .# 0 *. APPROVED A 9 TO FORM AND CONTENT. e* DALEY & HEFT DATED: 10) 0/9L NEAL S. MEYERW Attorneys for Defendant, CITY OF CARLSBAD MARKS & GOLIA DATED: /& -- 7 - 76 i 3,) $fA?/$%& r4 .c ROBERT MARK$?, Attorneys for Plaintiff, WEST COAST GENERAL CORPORATION 7 .. * 0 m This a$den&m agreement is entered into by West Coast Genera1 C~rgo~~ti~n (Rwest CWSS“) a obligations under General Release and Settlement Agreement, entered into bemeera the pades on OP abut October 7, 1996, anB setthg West Oast’s claims against the City arising QUI of the Avenida &&a Externion project (‘3enlernent Ag~eernent”). In exchange for immediate receipt from the City of a check in the sum of $l~S,WQ.OO and payable as set forth in the Settlement Agreement, West eo%se agrees the City may file the executed dis-1 of he refered’wcdsn with the court. West Coat Swhr agrees 10 release 2nd hold &e City barnless fyom all lkhifity, as set fad in &e Setelement AgreemeW nonvithstmdbg my hhee by Pmific Bell to perform in Mepertdent sbligatdons as also get forth in be S;etPlement Agreement. DAZB October 16, 1996 the city of Carllsbad (“City“) to hditate payment of the City’s I3 AS TO DATED: Oetokr 26, N% SUlW hm &OmqS fOP PkhES West Cow General COPI~OP~~~OII 27.mo/Uaj I -.*- T ‘d Z9ziL-Sz-ST9 xu3 b1-m P SYaUk t;z:ss 36i 9?*33 -c 4’ k m a 9 GENERAL RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement (the “AGREEMENT”) is entered into by and between West Coast General Corporation, a California corporation (“WEST COAST’?), the City of Carlsbad, a municipal corporation (the “CITY”), and Pacific Bell, a California corporation (“PACIFIC BELL”), effective October 2, 1996. RECITALS (A) On or about July 26, 1994, WEST COAST and the CITY entered into public works contract No. 3416 for the improvement of Avenida Encinas, Carlsbad. The work of improvement is commonly referred to as the Avenida Encinas street improvement Project, hereinafter the PROJECT. (B) On or about February 24, 1995, WEST COAST filed a complaint against the ClTY entitled West Coast General Corporation vs. The City of Carlsbad, San Diego North County Superior Court Case No. N66859, hereinafter referred to as the ACTION. On or about October 18, 1995, the CITY filed a first amended cross-complaint in the ACTION against PACIFIC BELL for breach of contract and express and implied indemnity, alleging that PACIFIC BELL had delayed in its work on the PROJECT leading to a portion of WEST COAST’S alleged damages. (C) The parties now wish to settle and resolve the ACTION. AGREEMENT NOW, THEREFORE, in exchange for the mutual promises, covenants and consideration expressed below, the parties agree as follows: 1. PACIFIC BELL shall contribute Twenty Thousand Dollars ($20,000.00) to a total settlement of One Hundred and Thirty-Five Thousand Dollars ($135,000.00) in WEST C0AST”s favor in order to resolve the entire ACTION including the cross-action. The balance of One Hundred and Fifteen Thousand Dollars ($1 15,000.00) is to be paid by the CITY pursuant to a separate release and settlement agreement entered into between the CITY and WEST COAST. Pacific’s draft shall be made payable to WEST COAST and Marks & Golia, its attorneys of record. 2. WEST COAST and the CITY shall dismiss the ACTION in full with prejudice upon WEST COAST’S receipt of the settlement drafts, and send a conformed copy of the dismissal to PACIFIC BELL. Each party shall bear its own costs, attorneys fees and all other expenses with respect to the ACTION. 3. In consideration of the foregoing, WEST COAST and the CITY, on behalf of themselves, their predecessors, successors, partners, heirs, assigns, and legal representatives, do hereby acknowledge full satisfaction of and do hereby release and forever discharge PACIFIC BELL, and its predecessors, successors, parents (including the Pacific Telesis Group and SBC 0016218.01 * L e 0 T , Communications, Inc.), subsidiaries, officers, directors, agents, employees, and affiliated companies (including the Pacific Telesis Group of Companies), of and from any and all claims, demands, and causes of action of whatever kind or nature, whether known or unknown, which arise out of or are in any way related to any of the following: (i) The PROJECT including, but not limited to, PACIFIC BELL’S work with respect to the PROJECT and all claims for delay and disruption damages, breach of contract, and indemnity ; (ii) The facts and claims alleged in WEST COAST’S complaint and/or the CITY’s cross-complaint or which could have been alleged therein; (iii) Any and all affirmative relief that WEST COAST or the CITY might assert against PACIFIC BELL with respect to the PROJECT. WEST COAST and the CITY agree that no claim or evidence of any matter released herein shall be raised, relitigated, or introduced in any lawsuit or other proceeding. 4. The foregoing release does not include and shall not be interpreted as releasing the following: (i) Any presently unknown and unanticipated future claims for indemnification by WEST COAST or the CITY against PACIFIC BELL that arise out of future actions by third parties (other than subcontractors, materialmen, and suppliers on the PROJECT and any third party that at any time was in privity with WEST COAST or the CITY with respect to the PROJECT) which are based on events occurring after the effective date hereof and which accrue and arise after the effective date hereof; (ii) WEST COAST’S and the CITY’s right to defend against and contest any claim that may be asserted in the future by PACIFIC BELL against WEST COAST and/or the CITY, but this shall not be interpreted as permitting WEST COAST or the CITY to assert a set- off, counterclaim or cross-complaint for affirmative relief against PACIFIC BELL based on a claim or matter released herein. 5. WEST COAST and the CITY understand and agree that this payment is made by PACIFIC BELL in settlement of a disputed claim and that PACIFIC BELL does not admit liability but expressly denies liability for any claims, demands, or causes of action which WEST COAST or the CITY ever had, now have, or may hereafter acquire arising out of the PROJECT. This compromise agreement is for the express purpose of terminating and precluding, now and forever, all claims and potential litigation relating to the released matters, whether known or unknown, suspected or unsuspected, by WEST COAST and the CITY. To that end, WEST -2- 0016218.01 r 8 , m 0 .j COAST and the CITY expressly waive all rights under Section 1542 of the Civil Code of California insofar as any such claims, demands, or causes of action are concerned. Section 1542 of the Civil Code referred to reads as follows: " 1542. Certain claims not affected by general release. 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." In connection with the parties' waiver and relinquishment of the rights conferred by Civil Code Section 1542, each party acknowledges that it is aware that claims or facts in addition to, or different from, those which such party presently knows or believes to exist, may be discovered and that the release herein shall remain in effect as a full and complete release notwithstanding the discovery of the existence of any additional, new or different claims or facts. This AGREEMENT is binding upon and inures to the benefit of the parties hereto 6. and their respective successors, assigns and legal representatives, unless otherwise expressly set forth herein. Each party hereto represents and warrants that it has not heretofore assigned or transferred any claim, demand, right, liability or cause of action which is the subject of this AGREEMENT to any non-party to this AGREEMENT. 7. AGREEMENT. 8. Each party hereto represents and warrants that it is authorized to enter into this Each party acknowledges that it has had an opportunity to review this AGREEMENT with legal counsel, and each party further acknowledges that it has read this AGREEMENT and fully understands its provisions and that no other representations or promises have been made to induce the parties to enter into this AGREEMENT. No party to this AGREEMENT has relied upon any statement, representation or promise by any other party which is not contained herein in executing this AGREEMENT. 9. This AGREEMENT entails the entire AGREEMENT between the parties hereto relating to the subject matter contained herein and supersedes all prior agreements, and understandings between the parties. There are no agreements, representations, warranties, or statements whether oral or in writing, with respect to the subject matter of this AGREEMENT, except as expressly set forth herein. 10. This AGREEMENT may be amended or modified only by a writing signed by the party against whom enforcement is sought. -3- 0016218.01 * . 0 0 L *\ P 1 1. This AGREEMENT may be executed in counterparts, all of which taken together shall constitute one agreement binding upon all parties hereto. 12. free and voluntary. 13. Each party acknowledges and warrants that its execution of this AGREEMENT is Each party to this AGREEMENT shall cooperate fully in the execution of any and all other documents in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms, conditions and intent of this AGREEMENT. 14. It is hereby acknowledged and agreed that this AGREEMENT was prepared by PACIFIC BELL solely as a clerical convenience and accommodation to WEST COAST and the CITY. The terms set out herein have been agreed to through the process of arms-length negotiations between the parties and in the event of any future litigation concerning the construction of this AGREEMENT, the parties hereto shall be deemed the joint drafters of all the terms and conditions set forth herein. 15. This AGREEMENT is made and entered into in the State of California and shall be interpreted and enforced under the laws of the State of California. Whenever possible, each provision of this AGREEMENT shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT shall be prohibited or deemed invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provision of this AGREEMENT. Dated: / 0 -e- y& CITY OF CARLSBAD WEST COAST GENERAL CORPORATION Dated: /@ *y- ?b DANA FERRELL, President -4- 0016218.01 s e a 'i *+ *. w. + ir i' C- Dated: \r'- il 1.1, PACIFIC BELL APPROVED AS TO FORM AND CONTENT: Dated: I[> - 6- 7 -7b MARKS & GOLIA 1 /4&(,&2/7&4A- ROBERT MAR& Attorneys for Plaintiff WEST COAST GENERAL CORPORATION DALEY & HEFT Dated: + / - NEAL s. MEYERS,~ Attorneys for Defendant and Cross-Complainant CITY OF CARLSBAD Dated: PACIFIC TELESIS LEGAL GROUP Attorneys for Cross-Defendant PACIFIC BELL -5- 0016218 01