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HomeMy WebLinkAbout1996-11-05; City Council; 13871; REPORTING OUT OF THE FINALITY OF THE SETTLEMENT IN WEST COAST GENERAL J.V.V. CITY OF CARLSBAD, CASE NO. N66859CITY OF CA R LSBAD -AGENDA BILL 0 4-/ r AB# /3: 8 7/ CITY ATTY. CARLSBAD, CASE NO. ’ E66859 MTG. /\- 5 -96 DEPT. HD. TITLE: REPORTING OUT OF THE FINALITY OF THE SETTLEMENT IN WEST COAST GENERAL J.V. V. CITY OF c DEPT. CA CITY MGRx RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: At previous closed session meetings, the City Council discussed and approved se the above referenced case. This item satisfies the Brown Act requirement to “repc fact of a settlement of litigation approved in a prior closed session, and make the conditions of the settlement available to the public. The Agreement attached is provided for public review. i/ FISCAL IMPACT: The cost of the settlement is $1 15,000. EXHIBITS: Settlement Agreement. Q g ea Q, 2 - .- 6 2 s - .- - 0 S S GEN q RAL RELEASE AND SETTLEMEN1 0 AGREEMENT West Coast General v. City of Carlsbad North County Superior Court Case No. N 66859 This Release and Settlement Agreement ("AGREEMENTt8) is made and entered into between WEST COAST GENERAL CORPORATION, California corporation (IIWEST COASTt9) , and the CITY OF CARLSBAD, municipal corporation (vgCITY1g), with reference to the followj facts : RECITALS : (a) On our about February 24, 1995, WEST COAST filed complaint in North County Superior Court alleging breach contract against the CITY. ' The case is entitled West Coast Gene] Corporation v. The City of Carlsbad, Case No. N 66859. On or abc October 18, 1995, the CITY filed a first amended cross-compla. against PACIFIC BELL for breach of contract and express and impl. indemnity relating to the lawsuit. (b) WEST COACT and the CITY now wish to settle and resa specific claims, disputes and differences existing between tl arising from these actions, including a contribution from PAC1 BELL, which will result in a full resolution of this dispute. COVENANTS : For good and valuable consideration, the receipt sufficiency of which is hereby acknowledged, WEST COAST and CITY hereby covenant and agree as follows: (1) Upon execution of this AGREEMENT by the parties here the CITY shall pay the total sum of $115,000.00 to WEST COAST way of a settlement draft made payable to '!WEST COAST GENE CORPORATION and its attorneys, Marks & Golia." In additi PACIFIC BELL has agreed, through independent negotiation 1 agreement with q EST COAST, to pay the su U of $20,000.00 to W! COAST, by way of settlement draft also made payable to "West Cot General Corporation and its attorneys, Marks & Golia" Upon paym and deposit of those sums into the client trust account of Mark Golia, LLP, for the benefit of WEST COAST, WEST COAST has agreed dismiss the CITY from its complaint with prejudice, and the C has agreed to dismiss PACIFIC BELL from its cross-complaint w prejudice and will enter into a separate Release Agreement w PACIFIC BELL. This AGREEMENT was reached through arms len negotiations between WEST COAST and the CITY. Thus, WEST CO will receive a total settlement amount of $135,000.00, apportic $115,000.00 from the CITY and $20,000.00 from PACIFIC BELL. (2) Upon execution of this AGREEMENT by the parties her€ payment to WEST COAST by the CITY of its $115,000.00 obligatj and in consideration of a waiver and release of attorneys fees litigation costs on the part of each of the parties hereto, 1 COAST shall file a request for dismissal, with prejudice, of entire complaint, and provide counsel for the CITY with a confoi copy thereof. The request for dismissal shall be as set fort1 Exhibit ilA1l hereto. (3) Upon execution of this AGREEMENT by the parties he: and payment to WEST COAST by PACIFIC BELL of its $20,001 settlement obligation, the CITY shall file a request for dismis with prejudice, of its cross-complaint against PACIFIC BELL, provide counsel for PACIFIC BELL and WEST COAST with a confo copy thereof. The request for dismissal shall be as set fort Exhibit IIBtt hereto. The CITY, WEST COAST and PACIFIC BELL enter into a separate release relating to the cross-complain which WEST COAST will receive a conformed copy. 2 (4) The e CITY and WEST COAST, a !B signatories to th AGREEMENT, shall bear their own attorneys fees and litigation cos incurred in this action. (5) Except for the duties and obligations created by arising from this AGREEMENT, and except for any warranties and/ guarantees or other legal obligations owed by WEST COAST to t CITY under the laws of the State of California or under the ter of Public Contract No. 3416 by and between the CITY and WEST COI dated July 26, 1994, and any written modifications thereto, E except for any latent defects in the construction of the Avenj Encinas extension project (exclusion of latent defect claims f~ this release agreement shall not include claims by the CITY 1 damages which may be suffered by virtue of the garbage discovel during construction in the structural section of the roadway i not excavated at the CITY'S direction) , and except for i obligations, duties or damages that may independently arise f: WEST COAST'S alleged violation of Public Contract Code Sect 4100, et seq., which is now the subject of a writ petition, I Diego Superior Court Case No. N 69002, and except for any presen. unknown obligations, duties or damages that may arise from I presently unknown third party claims (other than subcontracto, materialmen and suppliers on the project) made in the future by other person, firm or entity with respect to the project, W COAST and the CITY hereby release, quit claim, hold harmless forever discharge one another, their successors, assigns, for and present officers, directors, shareholders, agents, attorne employees and representatives both in their individual representative capacities, from all claims, demands, righ liabilities and causes of action of any kind, whether known 3 unknown, and wh a h arise in any manner from ei e subject project a the subject matter of the action described in paragraph (a) of th AGREEMENT ( "RELEASED MATTERS") . (6) The parties hereto intend and agree that this AGREEMI shall be effective as a full and final accord and satisfaction i general release of all RELEASED MATTERS. In furtherance therec the parties hereto acknowledge that they are familiar with Sect: 1542 of the Civil Code of the State of California, which provic as follows: CIVIL CODE SECTION 1542: A general release does not extend claims which the creditor does not know or suspect to exist his favor at the time of executing the release, which if knc by him must have materially affected his settlement with ' debtor. (7) Each party expressly waives and releases any and l rights or benefits which such party has or may .have with respect the RELEASED MATTERS under Section 1542 of the Civil Code of State of California. (8) In connection with the parties' waiver and relinquishm of the rights conferred by Civil Code Section 1542, each pa acknowledges that it is aware that claims or facts in addition or different from, those which such party presently knows believes to exist, may be discovered and that the release her shall remain in effect as a full and complete rele notwithstanding the discovery of the existence of any additior new or different claims or facts. (9) This AGREEMENT is binding upon and inures to the benG of the parties hereto and their respected successors, assigns legal representatives, unless otherwise expressly set forth her€ Each party hereto represents and warrants that it has heretofore assigned or transferred any claim, demand, ric 4 ' l'iability or ca 1R e of action which is the s tlo Ject of this AGREEME to any non-party to this AGREEMENT. (10) Each party hereto represents and warrants that it authorized to enter into this AGREEMENT. (11) Each party hereto acknowledges that this AGREEME effects the settlement of claims which have been and are denied a contested, and nothing herein is intended to Constitute admission of liability by any party hereto. (12) Each party acknowledges that it has had an opportunity review this AGREEMENT with legal counsel, and each party furth acknowledges that it has read this AGREEMENT and fully understar its provisions and that no other representations or promises ha been made to induce the parties to enter into this AGREEMENT. party to this AGREEMENT has relied upon any statemer representation or promise by any other party which is not contair herein in executing this AGREEMENT. (13) This AGREEMENT entails the entire AGREEMENT between t parties hereto relating to the subject matter contained herein e supersedes all prior agreements, and understandings between t parties. There are no agreements, representations, warranties, statements whether oral or in writing, with respect to the subjc matter of this agreement, except as expressly set forth herein< (14) This AGREEMENT may be amended or modified only by writing signed by the party against whom enforcement is sought (15) This AGREEMENT may be executed in counter-parts, all which taken together shall constitute one agreement binding u] all parties hereto. (16) Each party acknowledges and warrants that its execut. of this AGREEMENT is free and voluntary. 5 (17) Each w rty to this AGREEMENT shal @ cooperate fully in I execution of any and all other documents, and in the completion any additional actions that may be necessary or appropriate to g: full force and effect to the terms, conditions and intent of tl * AGREEMENT. (18) It is hereby acknowledged and agreed that this AGREE" was prepared by the CITY solely as a clerical convenience I accommodation to WEST COAST. The terms set out herein have bi agreed to through the process of arms-length negotiations betwl the parties and in the event of any future litigation concern the construction of this AGREEMENT, the parties hereto shall deemed the joint drafters of all the terms and conditions set fo herein. (19) This agreement is made and entered into in the State California and shall be interpreted and enforced under the laws the State of California. Whenever possible, each provision of t AGREEMENT shall be interpreted in such a manner as to be effect and valid under applicable law, but if any provision of t AGREEMENT shall be prohibited or deemed invalid under applica law, such provision shall be ineffective only to the extent of s prohibition or invalidity, without invalidating the remainder such provision or the remaining provisions of this AGREEMENT. DATED: /a - 6 - ?A WEST COAST GENERAL CORPORATION DATED: /a - 7 -: 76 f) v c1-c "PC E//// / DANA FERRELL, President WEST COAST GENERAL CORPORATION DATED: /a - 7 -: 76 f) v c1-c "PC E//// / DANA FERRELL, President 6 APPROVED mTO FORM AND CONTENT. 0 a DALEY Q HEFT DATED: 101 0 /?‘o NEAL Sa MEYERW Attorneys €01 Defendant, CITY OF CARLSBAD MARXS & GOLIA / 1 DATED: Id - 7 -76 .$. ’&&7 r PG ROBERT MARK&‘, -Attorneys for Plaintiff, “WEST COAST GENERAL CORPORATION 7 0 r 0 UM TO S-WNT AGREEMENI This addendum agreement is entered into by West Coast General Corporation ("West Coast") and the City of Carlsbad ("City") to Eacilitate payment of the City's obligations under the General Release and Setdement Agreement, entered into between the parties on or about October 7, 1996, and settling West Caast's claims against the City arising out of the Avenida Escinas Extension project ("Seulement Agreement"). In exchange for immediate receipt from the City of a check in the sum of $115,0o0.00 and payable as set forth in the Setricrnent Agreement, West Coasr agrees the City may file the exeat4 dismissal of the referenced'actidfi with the court. West Coast further ap2s to release and hold the City hamless from aii liability, 8s set Eo& in the Setdement Apeement, ~0trVitkstand;ng any falute by Pacific hIl to perform its independent obligations as dm set fonh in the Setplmeat Agreement. DAIED October 16, 1996 WESTcrlASTGENERAL(XNZRXA~0N CLF7/ZH// BY Dana K. ewe President AFPROYED AS TO FORM: DATED: October 16, 29% MARKs&Go~LLP By: f2*PZdL Robert J. M susantarsen ' Attorneys for Raintiff West coast General Corporation iWW33J - ."". T 'd 29.cA-~-S?9 x83 Y!lm a SX&M vZ:sT 3.5, 5 e e C e 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 hereinafter the PROJECT. improvement is commonly referred to as the Avenida Encinas street improvement Project, (B) On or about February 24, 1995, WEST COAST filed a complaint against the CITY 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. a (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 to 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 balanc of One Hundred and Fifteen Thousand Dollars ($1 15,000.00) is to be paid by the CITY pursua 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, d hereby acknowledge full satisfaction of and do hereby release and forever discharge PACIFIC 0 BELL, and its predecessors, successors, parents (including the Pacific Telesis Group and SBC 0016218.01 “ e 0 1 e 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 wi respect to the PROJECT and all claims for delay and disruption damages, breach of contract, a1 indemnity; (ii) The facts and claims alleged in WEST COAST’S complaint and/or the CITY’s cross-complaint or which cou1.d 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 hereic 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 0 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 futurc actions by third parties (other than subcontractors, materialmen, and suppliers on the PROJECl and any third party that at any time was in privity with WEST COAST or the CITY with respec to the PROJECT) which are based on events occurring after the effective date hereof and whick accrue and arise after the effective date hereof; (ii) WEST COAST’S and the CITY’s right to defend against and contest an) 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 sel 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 \I 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 WES’ COAST or the CITY ever had, now have, or may hereafter acquire arising out of the PROJECl 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 e -2- 0016218.01 e e t 0 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: I’ 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 conferrec 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 fact 6. This AGREEMENT is binding upon and inures to the benefit of the parties herel and their respective successors, assigns and legal representatives, unless otherwise expressly sei forth herein. Each party hereto represents and warrants that it has not heretofore assigned or AGREEMENT to any non-party to this AGREEMENT. transferred any claim, demand, right, liability or cause of action which is the subject of this 7. Each party hereto represents and warrants that it is authorized to enter into this AGREEMENT. 8. 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 promisc 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 tk party against whom enforcement is sought. e - -3- 0016218.01 ." W .i 0 6 1 1. This AGREEMENT may be executed in counterparts, all of which taken togethc shall constitute one agreement binding upon all parties hereto. 12. Each party acknowledges and warrants that its execution of this AGREEMENT free and voluntary. 13. Each party to this AGREEMENT shall cooperate fully in the execution of any a 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 AGREEMET\ 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 tf 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 t terms and conditions set forth herein. 15. This AGREEMENT is made and entered into in the State of California and shal 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 va 0 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: /6 - 8- yh CITY OF CARLSBAD Dated: i~r3 * 3 - 94 WEST COAST GENERAL CORPORATION q7&pLd*&y yl / DANA FERRELL, President a -4- 0016218.01 '" . 1 0 6 e Dated: \ 2 .q '27 c. PACIFIC BELL I.,fl$/// 1 DAVID ENGEL, aims Manager APPROVED AS TO FORM AND CONTENT: Dated: ,IO - 2- ?+ MARKS & GOLIA q /d!YJy/j&/&-"- ROBERT MAR& Attorneys for Plaintiff WEST COAST GENERAL CORPORATION e Dated: 11 [0! $6 DALEY & HEFT NEAL S. MEYERSY Attorneys for Defendant and Cross-Complainant CITY OF CARLSBAD ' Dated: /d/l//Qb PACIFIC TELESIS LEGAL GROUP ~OTT PAISLEY I" Attorneys for Cross-Defendant PACIFIC BELL 0 0016218.01 -5- . e 9 November 5,1996 TO: City Clerk FROM: City Attorney SETTLEMENT AND RELEASE AGREEMENTS RE: WEST COAST GENERAL V. CI1 bF CARLSBAb, CASE 1\16 Ne6859 (PROJECT N0.3416) Attached are the original executed General Release and Settlement Agreements between all three parties. We have retained copies for our files. ++ RONALD R. BALL City Attorney rmh attachments