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HomeMy WebLinkAboutAgr 2003-05-22 (UDI-Tetrad Consulting Engineers, Inc.) ~rS ~..,.. r\'."fJi " ~~' / L' \jY II ,) A. SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Agreement is made as a complete release of actions or claims between and among: UDI-TETRAD CONSULTING ENGINEERS, INC., a California Corporation (hereafter "UDI- TETRAD"), on behalf of itself, its representatives, heirs, executors, administrators, trustees, successors, affiliates, subrogors, subrogees, lessors, lessees, grantors, grantees, assignors, assignees, subsidiaries, parent corporations, agents, employees, servants, officers, directors, members, shareholders, owners, alter egos, attorneys, general partners, limited partners and representatives; and THE TOWN OF TIBURON (hereafter "TIBURON"), on behalf of itself, its representatives, heirs, executors, administrators, trustees, successors, affiliates, subrogors, subrogees, lessors, lessees, grantors, grantees, assignors, assignees, subsidiaries, parent corporations, agents, employees, servants, officers, directors, members, shareholders, owners, alter egos, attorneys, counsel members, firms, associations, corporations, general partners, limited partners, insurers and representatives; as to any and all claims or causes of action as follows: 1. Alleged or raised in any of the pleadings on file in the Superior Court action in Marin County, California, entitled UDI-TETRAD Consulting Engineers. Inc.. a California Corooration v. The Town of Tiburon, and related cross-action, identified as action number CV026448. 2. In any way relating to, or arising out of, the contract between UDI-TETRAD and TIBURON, effective April 5, 2000, entitled "Agreement between the Town of Tiburon and UDI- TETRAD, Inc., for the provision of engineering services - Upper Stewart Drive Undergrounding Assessment District Engineer." 3. In anyway relating to, or arising out of, the provision of services or payment of money in connection with the contract referenced in paragraph A.2., above. 4. Any other or different claims by any parties hereto relating to claims handling, litigation costs or attorneys' fees, arising from or relating to items listed in paragraphs A.I., A.2. or A.3., above. B. Each party to this Agreement acknowledges that there is a risk that, subsequent to the execution of this Agreement, it may incur, suffer or sustain injury, loss, damage, costs, attorneys' fees, expenses or any of these, which are in some way caused by and/or connected with the matters referred to in the paragraphs A.I, A.2, A.3. and A.4., above, or which are unknown and unanticipated at the time this Agreement is signed, or which are not presently capable of being ascertained. C. Each party to this Agreement further acknowledges that there is a risk that the damages referred to in paragraph B above, which are known, may become more serious than any 1 5/2 yc5 -1PIi & of them now expects or anticipates. D. Nevertheless, each party to this Agreement acknowledges that this Agreement has been negotiated and agre.ed upon in light of those risks mentioned in paragraphs B. and C., above, 'and each of them hereby expressly waives all rights each may have in any.such unknown claims and assumes the risks that the facts and law pertaining to this dispute may change or be different than it is now known to each said party. In doing so, each party to this Agreement, has had the benefit of counsel, and has been advised of, understands and knowingly and specifically waives its rights under California Civil Code ~ 1542, which provides as follows: A general release does not extend to claims which the creditor does not know of 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. E. Each party hereto has defended and denied the claims made by the other parties, and this Agreement is entered into with the understanding that it is the result of a compromise of disputed claims and shall never, at any time for any purpose, be considered an admission of the truth of any of the allegations, claims or contentions made by any party against any of the other parties. This Agreement is the product of negotiation and preparation by and among the parties hereto and their respective attorneys. The parties, therefore, expressly ackllowledge and agree that this Agreement shall not be deemed prepared or drafted by one party or another, or its attorneys, and will be construed accordingly. F. In consideration of said drafts or checks which are made reference to below under this Settlement Agreement and Mutual Release, the undersigned also agree, represent and warrant as follows: 1. Each party hereto represents and warrants as of the date of the Agreement, that they have the sole right and authority to execute this Agreement on their own behalf, and on the behalf of their representatives, or those they represent, and that they have not sold, assigned, transferred, conveyed or otherwise disposed of any claim or demand relating to any rights surrendered by virtue of this Agreement. 2. Each party hereto expressly warrants and represents that the person executing this Agreement on its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to its representations, terms, conditions and covenants as set forth herein. G. In further consideration for the compromise Agreement herein, each party agrees as follows: 2 1. TIBURON will pay UDI - TETRAD the sum of Thirty Five Thousand Dollars and Zero Cents ($35,000.00). 2. UDI- TETRAD will dismiss with prejudice all causes of action arising out of the 'incidents and the actions identified at paragraphs A.I., above. 3. TIBURON will dismiss with prejudice all causes of action arising out of the incidents and the actions identified at paragraphs A.I., above. H. In entering this Settlement Agreement, each party has relied upon the advice of the party's own attorneys of choice, and has not relied upon any representation of law or fact by any other party hereto. It is further acknowledged that the terms of this Settlement Agreement are contractual and are not a mere recital, have been completely read and explained by said attorneys, and that those terms are fully understood and voluntarily accepted. I. This Mutual Release and Settlement Agreement supersedes any and all prior agreements and understandings of the parties and constitutes the entire understanding between and among the parties with regard to the matters herein set forth. There are no representations, warranties, agreements or undertakings, written or oral, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. J. It is further agreed that this Agreement may be signed in counterpart. K. This Agreement is made and executed in the State of California and the undersigned agree that this Agreement shall be interpreted in accordance with, and governed in all respects by, the laws of the State of California. BY:~d Roger L. Poynts, PreSl ent Plaintiff and Cross-Defendant UDI-TETRAD Consulting Engineers, Inc. Date: Ds/~?- J03 . Approved as to Form & Content: '~ e:,~ L~,~_>) Connie D. Easterly Attorney for Plaintiff and Cross-Defendant UDI- TETRAD Consulting Engineers, Inc. (Signatures continued on next page.) 3 Date: S"-cJ.. 1 -0 J By: ~~~~ Ann R. Danforth, City Attorney Defendant and Cross-Complainant Town of Tiburon Approved as to Form & Content Gregg A. Thornton Attorney for Defendant and Cross-Complainant Town of Tiburon 4