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HomeMy WebLinkAbout2003-06-10; City Council; 17197; Reporting out Disposition West Coast General CorpCITY OF CARLSBAD - AGENDA BILL TITLE: REPORTING OUT THE DISPOSITION AS REQUIRED BY THE BROWN ACT IN WEST COAST GENERAL CORPORATION, J.V. V. CITY OF CARLSBAD, CASE NO. DO28177 (SDSC N69002) DEPT. HD. CITY ATTY. CITY MGR~ RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: This case, was pending in the California Supreme Court until after the California Supreme Court’s decision in the Haas v. County of San Bernardino case. After deciding Haas, the California Supreme Court ordered the Court of Appeal to vacate its previous opinion and remanded this matter for further consideration. However, both the City and West Coast agreed that settlement was in both parties’ interests. This item satisfies the Brown Act requirement to report the fact of the disposition of litigation and makes the terms and conditions of the satisfaction of judgment available to the public. A copy of the Settlement Agreement and Mutual Release and Stipulation to Dismiss Appeal is attached to this agenda bill. FISCAL IMPACT: No costs were awarded at this point, however in the original Superior Court action, the City was awarded attorneys’ fees in the amount of $22,617. EXHIBITS: 1. 2. Stipulation to Dismiss Appeal Settlement Agreement and Mutual Release 0 R I GlNAL Settlement Agreement and Mutual Release of All Claims This Settlement Agreement and Mutual Release of All Claims (Agreement) is entered into May 7,2003, by and between the City of Carlsbad (City) and West Coast General Corporation (West Coast), collectively referred to herein as the "parties". Whereas, there is an appeal pending in the matter West Coast General Corporation v. Citv of Carlsbad, Appellate Docket #DO28177 (the Action) and Whereas, the original suit before the Superior Court, in which West Coast sought a writ of administrative mandamus ended in a judgment in favor of the City and an award of attorneys' fees to the City in the amount of $22,617.00; and Whereas, the original appeal by West Coast of the judgment resulted in an affirmance of this judgment; and Whereas, West Coast thereafier successfblly petitioned the California Supreme Court to grant review pending the California Supreme Court's resolution of Haas v. County of San Bernardino (2002) 27 Cal.4th 1017; and Whereas, afier deciding Hm, the California Supreme Court ordered the Court of Appeal to vacate its previous opinion and remanded this matter for krther consideration in light of the Haas decision; and Whereas, the City and West Coast agree that it is in both parties' interests to completely resolve the disputes underlying the appellate matter discussed above, and all claims and any related matter thereto, by way of settlement and compromise. - Terms Now, therefore the parties agree as follows: 1. Waiver and Dismissal: 1.1 m: The City agrees to waive any claims it has against West Coast for recovery of attorneys' fees awarded in the Action. 1.2 West Coast: West Coast agrees to dismiss the Action with prejudice and to waive any krther claim for recovery of the contract penalty or ancillary damages arising therefrom. West Coast hrther agrees not to submit any bids on public work projects within the City until two-years after West Coast executes this Agreement. If West Coast submits any bids on or before such date, in violation of the Agreement, the parties agree that the City may return the bid unopened and Page 1 of 5 may not consider West Coast's bid for purposes of an award. The provisions of this paragraph do not preclude West Coast from performing as a listed subcontractor in any bid by a general contractor on or before such date. Except as expressly provided in this paragraph, the City of Carlsbad shall take no adverse action against West Coast General Corporation as a result of the matters arising out of or which led to the Action. 1.3 Litieation Fees and Costs: The parties agree that they shall assume and bear their own costs of litigation, including attorneys' fees, arising out of or related to the Action. 2. Mutual Release 2.1 Citv Release: In consideration for the waiver described in Paragraph 1 above, the City on behalf of its departments, predecessors, successors, assigns, subsidiaries, affiliates, agents, servants, employees, and elected officials hereby fblly and forever releases and discharges release West Coast, its principals, successors, heirs, executors, administrators and assigns, fiom any and all actual and potential claims, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities and demands, of whatever character, nature or kind, known or unknown, suspected or unsuspected that arise out of or relate to the subject matter of the Action. However, the foregoing release shall not be interpreted to apply to any claims based upon the breach of this Agreement itself 2.2 West Coast Release: In consideration for the waiver described in Paragraph 1 above, West Coast, on behalf of itself, its principals, successors, heirs, executors, administrators and assigns, hereby hlly and forever releases and discharges the City, its departments, predecessors, successors, assigns, subsidiaries, affiliates, agents, servants, employees, and elected officials from any and all actual and potential claims, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities and demands, of whatever character, nature or kind, known or unknown, suspected or unsuspected that arise out of or relate to the subject matter of the Action. However, the foregoing release shall not be interpreted to apply to any claims based upon the breach of this Agreement itself 2.3 Waiver of California Civil Code Section 1542: It is the intention of the parties that the foregoing mutual release shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities and demands of whatever character, nature and kind, known or unknown, suspected or unsuspected. In furtherance of this intention, the parties hereto expressly waive any and all rights and benefits conferred upon them by the foIlowing provisions of California Civil Code Section 1542: Page 2 of 5 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. 3. Miscellaneous Provisions 3.1 3.2 3.3 3.4 3.5 3.6 pature of ComDromise and Non-Admission of Liabilitv: The Agreement is the compromise of disputed claims, and nothing herein should be construed as an admission of liability on the part of the parties, each of whom expressly deny liability, or an admission of absence of liability. Attorneys' Fees: Should the City or West Coast reasonably retain counsel for the purpose of enforcing or preventing the breach of any provision herein, including but not limited to the institution of an action or proceeding to enforce any provision herein, for damages by reason of any alleged breach of any provision herein, for a declaration of the parties' rights or obligations hereunder, or for any other judicial remedy relating to this Agreement, then the prevailing party in any such matter shall be entitled to be reimbursed by the non-prevailing party for all costs and expenses incurred including but not limited to reasonable attorneys' fees for services provided to the prevailing party. Further Assurances: The parties agree to execute such other documents or to take such other action as may be reasonably necessary to fbrther the purposes of the Agreement. Governing Law: The Agreement shall be governed by, construed and enforced in accordance with the laws of California. Waiver and Amendment: No breach of any provision herein can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision herein. The Agreement may be amended only by an original agreement executed by the parties in interest at the time of the modification. Any oral modification shall be null and void unless it is both fully performed by all parties to the modification, and the modification includes explicit terms waiving this provision. Countemarts: The Agreement may be executed by counterparts by the parties and will become effective and binding upon the parties at such time as all of the signatories hereto have signed a counterpart of the Agreement. All counterparts so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatory to the Page3of 5 3 original or the same counterpart. Each of the parties shall sign a sufficient number of counterparts so that each party will receive a fully executed original of the Agreement, and each original signature on each original counterpart shall be considered to be an original of the Agreement. 3.7 Cantions and Intemretation: Titles or qons contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of the Agreement or any provision herein. No provision in the Agreement is to be interpreted for or against any party because that party or its legal representative drafted such provision. 3.8 Full Authority: The parties represent and warrant that the person or officer signing the Agreement on behalf of the party has full authority to do so. 3.9 Entire Agreement: The Agreement constitutes the entire agreement between the parties pertaining to the subject matter herein, and no terms or conditions relating to the Agreement exist, except such terms and conditions contained in the Agreement. 3.10 IndeDendent Advice of Counsel: The parties represent and declare that in executing the Agreement they rely solely upon their own judgment, belief and knowledge and the advice and recommendations of their counsel concerning the nature, extent and duration of their rights and claims, and that they have not been influenced to any extent whatsoever in executing the Agreement by way of any representations or statements covering any matters made by the parties or by any person representing any of the parties. Page 4 of 5 3.1 1 Voluntam Agreement: The parties represent and declare that they have carefblly read the Agreement and know its contents and that they signed the Agreement freely and voluntarily. Date my 7 ,2003 By: Title: For City of Carlsbad Title:i For West Coast General Corporation Page 5 of 5 1 COURT OF APPEAL FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ON WEST COAST GENERAL CORPORATION, ) ) CaseNo. PlaintifUAppellant , ) (SD Sup. V. ) STIPUL 1 ) DISMISS APPEAL CITY OF CARLSBAD, ) AND [PROPOSED] ) ORDERTHEREON Defendannespondent. ) Pursuant to California Rule of Court, Rule 19(b), the parties to the above-entitled appeal, having settled the case, hereby stipulate that said appeal may be dismissed with prejudice and without costs to either party, and that the remittitur may be issued forthwith. Dated: May z, 2003 DALEY & HEFT LLP Attorneys for Respondent City of Carlsbad Dated: May 21,2003 McKENNA LONG 8z ALDRIm LLP Attorneys for Appellant West Coast General Corp. ORDER THE COURT: Pursuant to stipulation, the above-entitled appeal, Case No. DO28 177, is hereby dismissed with prejudice, without costs to either party. Remittitur to issue forthwith . Dated: PRESIDING JUSTICE 1 West Coast General Corporation v. Citv of Carlsbad 4h District Court of Appeal No. DO28 177 (San Diego Superior Court Case No. N690002) PROOF OF SERVICE BY MAIL I am employed in the county of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is 750 B Street, Suite 3300, San Diego, California 92 10 1. On May 20,2003, I served the document entitled “Stipulation to Dismiss Appeal and [Proposed] Order Thereon” on the parties in this action by placing true and correct copies thereof enclosed in sealed envelopes addressed to: Neal S. Meyers, Esq. Daley & Heft 462 Stevens Avenue, Suite 201 Solana Beach, CA 92075 Ronald R. Ball, City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attorneys for Respondent Attorneys for Respondent I am readily familiar with the firm’s procedures for mail collection and processing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. I caused such envelopes to be deposited in the mail at San Diego, California. Each envelope was mailed with postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct, and that I bar of this Court at whose direction the service ployed at the office of a member of the Dated: May 20,2003