HomeMy WebLinkAbout2010-02-16; City Council; 20113; Settlement Telacu Construction ManagementCITY OF CARLSBAD - AGENDA BILL
AB#
MTG.
DEPT.
20,113
2/16/10
CA
REPORTING OUT THE SETTLEMENT
BETWEEN TELACU CONSTRUCTION
MANAGEMENT AND CITY OF
CARLSBAD
DEPT. DIRECTOR
CITY ATTORNEY^^g^
CITY MANAGER (\
RECOMMENDED ACTION:
There is no action to be taken by the City Council.
ITEM EXPLANATION:
The parties have now settled this issue under the authority given to the City Attorney by the City
Council at its closed session of November 10, 2009. This item satisfies the Brown Act
requirement to report the fact of a settlement approved in a prior closed session and makes the
terms and conditions of the settlement available to the public.
FISCAL IMPACT:
The City has made a final contractual payment to Telacu in the amount of $229,769.04 of which
$150,000 the City had been withholding in retention funds and $72,000 from contract
contingency funds.
ENVIRONMENTAL IMPACT:
Reporting out the fact of Settlement is not a "project" within the meaning of CEQA and therefore
environmental review is not required pursuant to CEQA Regulation 15061(b)(3).
EXHIBITS:
1. Notice of Entry of Dismissal dated January 11, 2010.
2. Settlement and Release Agreement on file with the City Clerk.
DEPARTMENT CONTACT: Ronald R. Ball 760-434-2891
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
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CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
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GREGORY L. RIPPETOE, Bar No.: 98455
LAURA A. MILES, Bar No.: 238278
RIPPETOE MILES, LLP
2 Park Plaza, Suite 525
Irvine, California 92614
Telephone: (949) 852-0020
Facsimile: (949)852-0021
Attorneys for Plaintiff TELACU
CONSTRUCTION MANAGEMENT, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION
TELACU CONSTRUCTION
MANAGEMENT, INC., a California
Corporation,
Plaintiff,
v.
CITY OF CARLSBAD, a Municipal
Corporation; and DOES 1 through 100,
inclusive,
Defendants.
CASE NO. 37-2009-00060436-CU-BC-NC
Assigned for all Purposes to:
Judge Robert P. Dahlquist
Department N-29
Hearing Pending:
None
NOTICE OF ENTRY OF DISMISSAL
Date Complaint Filed: October 2, 2009
Trial Date: Not Set
TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that an Order of Dismissal of the entire action, with
prejudice, was filed in the above-entitled action on January 5, 2010. A conformed copy of
the Order of Dismissal is attached hereto.
DATE: January 11,2010 RJPPETO
. RIPPETOE
A. MILES
Utorneks for Plaintiff
U CONSTRUCTION
iGEMENT, INC.
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NOTICE OF ENTRY OF DISMISSAL
CIV-110
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
GREGORY L. RIPPETOE, Bar No. 98455
LAURA A. MILES, Bar No. 238278
RIPPETOE MILES, LLP
2 Park Plaza, Suite 525
Irvine, CA 92614
TELEPHONE NO.: (949) 852-0020 FAX NO. (Optional): ( 9 4 9 ) 852-0021
E-MAIL ADDRESS (Optional):
ATTORNEY FORfName): Plaintiff TELACU CONSTRUCTION MANAGEMENT,
INC.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
STREET ADDRESS: 325 S. Melrose Avenue
MAILING ADDRESS:
CITY AND ZIP CODE Vista, CA 92081
BRANCH NAME NORTH COUNTY DIVISION
PLAINTIFF/PETITIONER: TELACU CONSTRUCTION MANAGEMENT, INC.
DEFENDANT/RESPONDENT: CITY OF CARLSBAD, et al .
REQUEST FOR DISMISSAL
1 1 Personal Injury, Property Damage, or Wrongful Death
1 1 Motor Vehicle 1 1 Other
1 Family Law I I Eminent Domain
1 1 Other (specify) :
FOR COURT USE ONLY
> ' t
v _ ' '
CASE NUMBER:
37-2 009- 0006043 6 -CU-BC-
NC
- A conformed copy will not be returned by the clerk unless a method of return is provided with the document. -
1. TO THE CLERK: Please dismiss this action as follows:
a. (1) QT] With prejudice (2) I I Without prejudice
b. (1) r~l Complaint (2) I I Petition
(3) I I Cross-complaint filed by (name): on (date):
(4) I I Cross-complaint filed by (name): on (dafej:
(5) I X I Entire action of all parties and all causes of action
(6) I I Other (specify):*
2. (Complete in all cases except family law cases.)
I | Court fees and costs were waived for a party in this case. (This infonrtation i
checked, the declaration on the back of this form must be completes).
Date: January 4, 2010
GREGORY. L. _RIPPETOE
CTYPE OR PRINT NAME OF I X I ATTORNEY I I PARTY WITHOUT ATTORNEY)
*lf dismissal requested is of specified parties only of specified causes of action
only, or of specified cross-complaints only, so state and identify the parties,
causes of action, or cross-complaints to be dismissed.
y be obtah the clerk. If this box is
/ (SIGNATURE)
' or part* wBhout attorney forPlaintif f TELACU
3NSTRUCTFJON MANAGEMENT, INC.
'X~| Plajjwff/Petitioner IZ~1 Defendant/Respondent
iss - complainant
3. TO THE CLERK: Consent to the above dismissal is hereby given.
Date:
fTYPE OR PRINT NAME OF I I ATTORNEY I I PARTY WITHOUT ATTORNEY)
** If a cross-complaint - or Response (Family Law) seeking affirmative
relief - is on file, the attorney for cross-complainant (respondent) must
sign this consent if required by Code of Civil Procedure section 581 (i)
or (j).
(SIGNATURE)
Attorney or party without attorney for:.
I I Plaintiff/Petitioner I I Defendant/Respondent
I I Cross - Complainant
(To*be completed by clerk) ^ -
4. L^jjJTsmissal entered as requested on (date): J/\/Y Q D
5. I I Dismissal entered on (date): as to only (name):
6. I I Dismissal not entered as requested for the following reasons (specify):
7. a. I xi^Attorney or party without attorney notified on (date):
• b. [ | Attorney or party without attorney not notified. Filing party tailed to provide
I I a copy to be conformed I I means to return conformed copy
Date: ,. . . . Clerk, by _", Deputy
Page 1 of 2
Form Adopted for Mandatory use
Judicial Council of California
CIV-110 [Rev. July 1,2009]
REQUEST FOR DISMISSAL Code of Civil Procedure, § 581 et seq.;
Gov. Code, § 68637(c); Cal. Rules of Court, rule 3.1390
1 PROOF OF SERVICE
2 I am employed in the County of Orange, State of California. I am over the age of 18
and not a party to the within action. My business address is at Rippetoe Miles, LLP, 2 Park
3 Plaza, Suite 525, Irvine, California 92614.
On January J^L , 2010,1 served the foregoing document described as: NOTICE 0
ENTRY OF DISMISSAL on all other parties and/or their attorney(s) of record to this actic
by placing a true copy thereof in a sealed envelope as follows:
***6 * * * SEE ATTACHED LIST
7 BY MAIL I am a resident of, or employed in, the county where the mailing occurs;
I am over the age of 18 years and am not a party to the cause. I am readily familiar with the
business1 practice for collection and processing of correspondence for mailing with the
United States Postal Service. The correspondence will be deposited with the United States
Postal Service this same day in the ordinaiy course of business. The address(es) shown
above is(are) the same as shown on the envelope. The envelope was placed for deposit in
10 the United States Postal Service at Rippetoe Miles, LLP in Irvine, California on January
^ , 2010. The envelope was sealed and placed for collection and mailing with first-class
11 prepaid postage on that date following ordinary business practices. Service made pursuant
to CCP § 1013a(3), upon motion of a party served, shall be presumed invalid if the postal
12 cancellation date or postage meter date on the envelope is more than one day after the date
of deposit for mailing contained in the affidavit.
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State I declare under penalty of perjury under the laws of the State of California that
15 the foregoing is true and correct to the best of my knowledge.
16 Executed on January 12—, 2010, at Irvine, California.
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18 Catherine Amante
(Signature
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NOTICE OF ENTRY OF DISMISSAL
SERVICE LIST
Case Name: TELACU Construction Management, Inc. v. City of Carlsbad
Case Number: 37-2009-00060436-CU-BC-NC
Our File Number: TCM004-GLR/LAM
Ronald C. Kemp, Esq.
Deputy City Attorney
City of Carlsbad
1200 Carlsbad Village Dr.
7 Carlsbad, CA 92008
Telephone: (760)434-2891
Facsimile: (760) 434-8367
Attorney for Defendant City of Carlsbad
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NOTICE OF ENTRY OF DISMISSAL
SETTLEMENT AND RELEASE AGREEMENT
This Settlement 'and Release Agreement ("Agreement") is made by and between the
following parties TELACU Construction Management, Inc. ("TCM") and City of Carlsbad
("CITY") and all related affiliates, companies and assignees. The above-referenced parties may
be referred to collectively herein as "the Parties."
RECITALS
A. TCM and CITY entered into a Contract for the City Library Learning Center -
Contract No. 3771 and 4001 ("Contract") in the original amount of $4,015,000.00 for the
construction of a City Library Learning Center ("Project").
B. There is currently litigation pending between the Parties with respect to the
Project entitled TELACU Construction Management, Inc. v. City of Carlsbad, Case No. 37-
2009-0006043 6-CU-BC-NC (the "Complaint").
C. TCM asserts in the Complaint that it is entitled to recover claims for breach of
contract, breach of implied warranty of plans/specifications, misrepresentation of plans and
specifications, equitable adjustment for delay and disruption, and violation of prompt pay statute
in the total amount of not less than $348,702.00 (collectively, the "Claim"). CITY has disputed
the Claim and asserts that TCM was responsible for delays by not prosecuting the work in a
timely manner.
D. The Parties wish to settle and resolve their differences concerning the Project, the
Contract and the Claim subject to the terms and conditions hereto.
ARTICLE I
The Parties have agreed to resolve their differences and to settle this entire matter
between them once and for all, as set forth below. The Parties agree to waive the mediation
and/or settlement privileges and the provisions of California Evidence Code to the extent
necessary to enforce the terms of this Agreement.
1 . 1 The recitals are incorporated herein as though set forth in full.
1 .2 CITY agrees to pay to TCM the amount of $229,769.04 ("Settlement Amount") in
consideration for the releases set forth herein.
1 .3 Payment of the Settlement Amount will be made .on-d-
2099? ^
1.4 TCM agrees that, upon payment of good and sufficient funds as set forth in
Paragraph 1 .2, it shall cause its Complaint to be dismissed, with prejudice, in its entirety. '
Stnlenxni Agt (TCM tn) CiiliMd) DOC
ARTICLE II
2.1 Releases
«
(a) Except for the obligations arising under this Agreement, and subject to the
express exclusions set forth hereinbelow, the Parties, and each of them, for themselves, and as
applicable, their respective assigns, predecessors, successors-in-interest, officers, directors,
shareholders, employees, trustees, partners, principals, agents, subcontractors, parents,
subsidiaries and representatives, hereby release, acquit and forever discharge each other, and as
applicable, each other's respective agents, officers, directors, shareholders, employees,
successors, assigns, partners, trustees, administrators, attorneys, insurers, sureties,
representatives, and all other persons or entities acting by, through, under, or in concert with
them, from every and all things, by reason of any matters or causes of things whatsoever,
whether known or unknown, suspected or unsuspected, heretofore or now existing, or which
might or may be claimed to exist in the past, present or future, including but not limited to all
past, present or future actions, causes of action, liabilities, claims, disputes, debts, controversies,
indebtedness, breaches of contract, breaches of duty, acts, promises, agreements, representations,
damages and any demands of any type, nature, kind or description, whether tortious, contractual,
statutory or otherwise and whether in law or in equity or otherwise, with respect to, or arising out
of, the Project, the Claim, the Contract, the Complaint, and the Parties' respective performance
thereunder. Said releases shall be effective upon payment of the amount set forth in paragraph
1.2 of this Agreement.
(b) The Parties, in giving the releases provided for herein, represent,
acknowledge and agree that Section 1542 of the California Civil Code provides as follows:
A general release does not extend to claims which the creditor
does not knew or suspect to exist in his or her favor at the time
of execution of the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
The Parties specifically waive any and all rights and/or benefits they have or may have
under California Civil Code §1542 or any other statutes or common law principle of similar
substance and effect, and further represent, acknowledge and agree that their knowing and
voluntary waiver of the provision of.California Civil Code § 1542 is an essential and material
term of this Agreement, and that without such a waiver, this Agreement would not have been
entered into.
(c) Subject to the limitations, reservations and exceptions specifically set forth
in this Agreement the Parties, and each of them, acknowledge that they are aware that they or
their attorneys may hereafter discover facts different from or in addition to the facts which they
now know or believe to be true with respect to the subject matter of this Agreement, but that it is
their intention hereby to, and they hereby do, fully, finally, absolutely, and forever settle and,
except for the obligations imposed by this Agreement, release, waive and acquit the other from
the claims released herein and, in furtherance of such intention, the general releases herein given
by said Parties shall be and remain in effect as full and complete general releases
notwithstanding the discovery of any different or additional facts.
Stttlcnxnl Agt (TCM ind Cadsbod) DOC
ARTICLE III
Each of the Parties to this Agreement represent, warrant and agree as follows:
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(a) That there has been no assignment, sale, transfer or hypothecation, by
operation of law or otherwise, of any claim, right, cause of action, demand, obligation, liability
or interest released or assigned by any of them as provided herein and each party has full
authority and ability to settle, resolve and dismiss its respective claims with respect to the
Project.
(b) Each Party to this Agreement has made such investigation of the facts
pertaining to this settlement and this Agreement and of all the matters pertaining to it as it deems
necessary.
(c) Each Party or responsible officer or agent thereof has read this Agreement
and understands the contents thereof. Each of the individuals executing this Agreement on
behalf of the respective Party possesses the power, capacity and authority to do so and thereby
bind his respective Party.
(d) Each term of this Agreement is contractual and not merely a recital.
(e) All Parties acknowledge that in entering into this Agreement, each of them
is relying solely on the terms of this Agreement and the advice of its own attorneys and other
advisors. All Parties acknowledge, further, that none of them is relying on any written or oral
statement, representation or warranty made by any other Party, or the representative of any other
Party, except as set forth in this Agreement. Except with respect to the representations and
warranties made in this Agreement, each Party, in entering into this Agreement, assumes the risk
that any fact upon which he relied in entering into this Agreement may prove to be false, or that
his understanding of the facts or the law was incorrect. After the execution of this Agreement,
no Party shall be entitled to rescind this Agreement, or obtain any other relief whatsoever, based
upon his discovery of the falsity of any fact, other than the representations and/or warranties
made in this Agreement by any other Party, upon which he relied in entering into this
Agreement.
(f) This Agreement is binding upon and shall inure to the benefit of each of
the Parties hereto and their respective parent companies, subsidiaries, affiliates, joint venturers,
principals, successors, divisions, heirs, and assigns.
(g) The Parties hereto agree to execute, acknowledge, and/or deliver any and
all documents and to perform any and all acts reasonably necessary to carry out and perform
their obligations hereunder.
(h) This Agreement contains the entire agreement and understanding between
the Parties and supersedes and replaces all prior negotiations and proposed agreements, written
or oral, concerning the Claim. The Parties hereto acknowledge that no other Party, or agent or
attorney of any other Party, has made any promise, representation, or warranty whatsoever,
express or implied, not contained in this Agreement concerning the subject matter hereof, to
Aji CICM >nd Culitwi) DOC
induce this Agreement, and the Parties acknowledge that they have not executed this Agreement
in reliance upon an)' such promise, representation, or warranty not contained herein.
(i) This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which taken together shall constitute a single instrument.
If this Agreement is signed in counterpart, it shall be deemed effective upon execution by all
Parties. The Parties agree that a fully executed copy or facsimile of this Agreement shall have
the same force and effect as an original document.
(j) This Agreement is deemed to be executed and delivered within the State
of California, and its validity, construction and performance, as well as the rights and obligations
of the Parties hereunder, shall be governed, construed and enforced in accordance with the laws
of the State of California.
(k) Any litigation or other proceeding brought to enforce the provisions of this
Agreement shall be filed in a court of competent jurisdiction in San Diego County, California.
(1) The Parties agree and acknowledge that this Agreement reflects a
compromise and settlement of claims, disputes and differences between them which are denied
and contested. The Parties agree that neither this Agreement nor the payment of any monetary
consideration nor the giving of any other consideration, as provided herein, shall be construed as
an admission by any Party hereto of any liability of any kind to the other.
(m) Each Party to this Agreement shall bear its own attorneys' fees, costs and
expenses incurred in all proceedings associated with the Project, the Claim or any related matter.
(n) Every provision of this Agreement is intended to be severable. In the
event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever
by a tribunal of competent jurisdiction, such illegality or invalidity shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall remain binding and
enforceable.
IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as of
the date set forth next to their signature.
DATED: December Q, 2009 TELACU Construction Management, Inc.
Sftlltmtnl Agl (TCM and Cailsbjil} DOC
DATED: December^, 2009 CITY OF CARLSBAD
By:
Its: C'lTY MANAGER
APPROVED AS TO FORM;
DATED: December £), 2009 CITY OF CARLSBAD, CITY ATTORNEY OFFICE
Ronald C, Kemp
Deputy City Attorney
DATED: December j 2009 RIPPETOE & MILES LLP
Lattra A. Mile
jregory. Rippetoe, Esq.
forTELACU Construction
fogement, Inc.
Setlkrotnl Ajl fTCM Ki Cjrlibxi) DOC