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RRA - Item 4A - Conference with Legal Counsel WALLIN, KRESS, REISMAN & KRAN LIZ orFicrs zeoo TwENTY-EIGHTH STREET. SUITE 315 SANTA MONICA. CALIFORNIA 90405-6205 TLLEPMONE (310p aso-a5S2 FACSIMILE 13101F50-0506 CONFIDENTIAL April 8, 1999 Richard B. Andrade Andrade &Associates 18401 Von Karman Avenue, Suite 350 Irvine, CA 92612 Re: So. Cal Underground Contractors v. City of Rosemead Dear Mr. Andrade: This week representatives of your client met with the City Engineer and reached a tentative settlement of the claims which are the subject of the referenced lawsuit. The settlement calls for payment of 517,000.00 to your client in return for a release of all claims against the City and Agency and dismissal of the pending lawsuit. We will recommend approval of this settlement to the Redevelopment Agency Board at its April 26, 1999, meeting. I trust the matter will be approved and we will thereafter present you with an executed copy of the settlement agreement and a check in the amount of S17,000.00. Prior to the meeting, please have your client execute and return to me the three copies of the settlement agreement that are enclosed herewith. I will return one fully executed copy to you following Agency approval. • • . Iy Yip �,f Peter Wallin Office of the Rosemead City Attorney cc: Ken Rukavina AGENCY AGENDA Don Wagner APR 2 71999 Bob Kress CONFIDENTIAL ITEM No. SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("AGREEMENT") is made and executed as of April , 1999, by and between SOUTHERN CALIFORNIA UNDERGROUND CONTRACTORS, INC. ("CONTRACTOR") the CITY OF ROSEMEAD, a municipal corporation ( "CITY") and the ROSEMEAD REDEVELOPMENT AGENCY a redevelopment agency organized under the California Community Redevelopment Law ("AGENCY"), with reference to the following facts and circumstances: A. On or about October 8, 1997, CONTRACTOR and AGENCY entered into a written agreement engaging CONTRACTOR to construct Project No. 97-03 -- Storm Drain Improvements in San Gabriel Boulevard (the "PROJECT"). B. A dispute has arisen between CONTRACTOR, AGENCY and CITY arising out of liquidated damages assessed against CONTRACTOR and CONTRACTOR's claim of entitlement to compensation for change orders, all as are more particularly set forth in a claim (the "CLAIM") filed with the CITY on or about August 9, 1998, and a lawsuit filed by CONTRACTOR against CITY on or about October 24, 1997, in the Superior Court of the State of California, Case No. GCO22321 (the "LAWSUIT"). C. The parties desire to resolve the CLAIM and LAWSUIT and release fully and completely all claims which CONTRACTOR now has or has ever had, arising out of, related to, or connected in any manner whatsoever with the PROJECT. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. AGENCY shall pay CONTRACTOR the sum of$17,000.00 within fifteen days from the date of execution of this Agreement. 2. In consideration of the payment made to CONTRACTOR pursuant to this AGREEMENT, CONTRACTOR agrees to, and by executing this AGREEMENT hereby does, waive and absolutely and forever discharge all the individuals and entities specified herein, and each of them, from any, all, and each and every claim (s), right(s), demand(s), covenant(s), agreement(s), contract(s), representation(s), waranty(ies), promise(s), lien(s), account(s), debt(s), liability(ies), damage(s), expense(s), attorney's fee(s), cost(s), and cause(s) of action of every Page 1 of 4 kind and nature, arising out of; related to, or connected in any manner whatsoever with the CLAIM, the LAWSUIT and CONTRACTOR's engagement to construct the PROJECT for AGENCY, whether}mown or unknown, suspected or unsuspected, anticipated or unanticipated, whether at law or in equity, which it now has, may have in the future, or has ever had against any of the individuals or entities named in this AGREEMENT. The general releases made and given herein shall expressly extend to, benefit, and release the CITY and AGENCY, all successors, assigns, predecessors-in-interest, successors-in-interest, officers, agents, contractors, managers, representatives, associates, partners, and current and former councilmembers, board members, attorneys, engineers and contract administrators of CITY and AGENCY, whether in their individual or official capacities. With respect to the foregoing release, CONTRACTOR hereby waives al] rights which it may have under the provisions of California Civil Code section 1542, which reads: A general release does not extend to claims which a 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. CONTRACTOR acknowledges that the facts with respect to which it gives this general release may turn out to be different from the facts that it now believes to be true. CONTRACTOR hereby assumes the risk of the facts turning out to be different, and agrees that this AGREEMENT shall in all respects be effective and not subject to termination or rescission because of any such difference in facts. 3. Upon receipt of the payment from AGENCY, CONTRACTOR shall cause to be filed a dismissal with prejudice of the LAWSUIT. 4. The PARTIES, and each of them, understand and agree that the consideration being given and exchanged pursuant to this AGREEMENT is being given as consideration to compromise disputed claims respecting the CLAIM and LAWSUIT, and that the entry into and performance of this AGREEMENT, including said exchange of consideration, is not to be considered an admission of liability or of the validity or invalidity of any allegation(s) or contention(s) of any of the PARTIES. Page 2 of 4 5. CONTRACTOR represents that, except for the LAWSUIT and CLAIM, it does not currently have on file and will not file any complaint, charge, claim, legal action, or proceeding arising out of or respecting the claims released herein with any court, tribunal, governmental agency or administrative agency against any of the individuals and entities specified in Section 2 above. CONTRACTOR further represents that this AGREEMENT has been duly approved by the corporation and is executed by a duly authorized representative thereof. 6. CONTRACTOR acknowledges, represents, and agrees that it freely and voluntarily executed this AGREEMENT, and freely and voluntarily waived and released claims hereunder. CONTRACTOR acknowledges, represents, and agrees that it undertook said acts knowingly and after consultation with its attorney RICHARD B. ANDRADE, and without any duress or undue influence on the part of any party, attorney, person, and/or entity, after having been advised of all relevant information. CONTRACTOR acknowledges, represents, and agrees that in executing this AGREEMENT it is relying solely upon facts obtained from its own investigation and advice received from its above-named attorney of choice and not upon any statement or representation of any nature by any other party, attorney, person, and/or entity. 7. The PARTIES, and each of them, shall bear their own attorneys' fees and costs incurred in connection with the CLAIM, the LAWSUIT and this AGREEMENT. If any party to this AGREEMENT brings an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action shall be entitled to reasonable attorney's fees and costs to be paid by the losing party as fixed by the court. 8. This AGREEMENT constitutes the entire agreement between the PARTIES pertaining to the subject matter hereof; contains all terms and conditions of the PARTIES' agreement; is the complete and final expression of the PARTIES' agreement; and supersedes ail prior or contemporaneous oral or written agreements, negotiations, and understandings between them or any one or more of them, if any. This AGREEMENT may only be changed, revoked, or superseded by a written document signed by all PARTIES. 9. This AGREEMENT has been jointly reviewed and drafted by counsel for CONTRACTOR and counsel for CITY and AGENCY and shall be construed as a whole, according to its fair meaning and not strictly for or against any of the PARTIES. Paee 3 of 4 10. This AGREEMENT shall inure to the benefit of and be binding upon the heirs, administrators, executors, successors, trustees, and assigns of the PARTIES, and each of them. 11. This AGREEMENT shall in all respects be interpreted, enforced, and governed by and under the laws of the State of California. 12. This AGREEMENT may be executed in counterparts, which such counterparts when taken together shall constitute but one entire AGREEMENT. 13. The PARI IES, and each of them, understand, acknowledge, and agree that certain disclosures respecting this AGREEMENT are required to be made by CITY under the law. 14. All PARTIES shall receive a fully executed copy of the AGREEMENT. Dated: SOUTHERN CALIFORNIA UNDERGROUND CONTRACTORS, INC. By: Dated: CITY OF ROSEMEAD By: Mayor Dated: ROSEMEAD REDEVELOPMENT AGENCY By: Executive Director Page 4 of 4