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