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Home My WebLink AboutVIDO ARTUKOVICH AND SON, INC./VIDMAR, INC., A JOINT VENTUREN-2018-075 C�P- my 15 2D18 0%6s#4 SETTLEMENT AND RELEASE AGREEMENT Vido Artukovich and Son, Inc./Vidmar, Inc„ a Joint Venture v, City of Santa Ana Orange County Superior Court Case Number 30-2018-00972475-CL-BC-CJC This Settlement and Release Agreement ("Agreement") is entered into by and between the following parties ("Parties"): Vido Artukovich & Son, Inc./Vidmar, Inc. A Joint Venture ("Plaintiff') and City of Santa Ana ("Defendant"). 1. RECITALS 1.1 On February 9, 2018, Plaintiff filed its original complaint in the Orange County Superior Court, Case Number 30-2018-00972475-CL-BC-CJC (the "Action"). The Action arises generally from allegations of wrongfully with -held retention after completion of a construction contract. 1.2 The Parties have agreed to a compromise and settlement of all of Plaintiff's claims and damages as alleged in the Action (the "Released Claims") as follows: 2. TERMS 2.1 Warranties. Plaintiff covenants, warrants and represents that it is presently the sole and exclusive owner of all claims, demands, causes of action, controversies, obligations and liabilities related to the Released Claims sought in the Action and that no other individual or entity has any right, title or interest whatsoever in the Released Claims, demands, causes of action, controversies, obligations or liabilities, and that there has been no assignment, transfer, conveyance or other disposition by Plaintiff of any of the Released Claims, demands, causes of action, controversies, obligations or liabilities. Plaintiff agrees not to file any complaints, Page I of actions, charges or claims of any nature against Defendant related to any of the Released Claims that occurred any time prior to the execution of this Agreement by Plaintiff. 2.2 No Admission of Liability. Plaintiff covenants, warrants and represents that the claims, demands, actions and causes of action affected by the Agreement are disputed by all Parties, and that the Agreement is given in good faith, in full settlement and compromise of all such disputes. Nothing in this Agreement is intended or may be deemed to constitute an admission or concession of liability or other evidence of any wrongdoing or liability on the part of Defendant, and Plaintiff further covenants, warrants and represents that the settlement shall not be construed or interpreted in such manner, and that any such asserted liability is expressly denied by Defendant. 2.3 Release. For and in consideration of the settlement payment amount set forth in Section 3.1, the sufficiency of which the Parties expressly acknowledge, and on behalf of itself and on behalf of its successors and assigns, and each of them, the Parties hereby fully and forever releases and discharges one another, and his past, present and future parents, subsidiaries, affiliates, predecessors, successors, shareholders, officers, directors, employees, insurers, agents, representatives, attorneys and assigns, and each of them, (the "Released Parties") from any and all claims, demands, liabilities, judgments, obligations, suits, actions or causes of action of any kind or nature whether in law or in equity, known or unknown, fixed or contingent, asserted or unasserted, or suspected or unsuspected, which now or hereafter may exist including, but not limited to, in connection with any and all injuries or damages sustained by Plaintiff or Defendant arising out of or relating to the Released Claims or any matters alleged or at issue in the Action. 2.4 Waiver of California Civil Code Section 1542. It is the bargained for intention of the Parties, that the foregoing release shall be effective as a bar to all demands, liens, Page 2 of 6 assignments, contracts, covenants, actions, suits, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, controversies, judgments, orders, and liabilities of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, and whether or not concealed or hidden, herein above specified to be so barred. Plaintiff hereby acknowledges and expressly waives the provisions of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." The Parties acknowledge that the foregoing wavier of the provisions of Section 1542 of the California Civil Code, and any other comparable statutes or laws which may exist under the laws of the State of California or any other state or territory, was separately bargained for and is an essential and material term of this Agreement. The Parties agree that this Agreement shall be given full force and effect in accordance with each and all of its express terms and provisions, relating to unknown and unsuspected claims, demands, and causes of action, if any, to the same effect that those terms and provisions relating to any other claims, demands, and causes of action herein above specified. 2.5 Fees and Costs. The Parties agree to bear their own attorneys' fees and costs incurred in the Action and waive and release each other from any and all claims to recover costs of litigation including, but not limited to, court costs, expert costs, mediation fees and attorneys' fees incurred as a result of or in connection with the Released Claims. Page 3 of 6 2.6 Dismissal with Prejudice. Upon execution of this Agreement by Plaintiff and performance of the acts identified in Section 3.1 below, Plaintiff will dismiss the Action against Defendant with prejudice. 3. CONSIDERATION 3.1 In exchange for Plaintiffs agreement to dismiss the Action with prejudice against Defendant, Defendant agrees to pay Plaintiff a sum of $14,300.00, Defendant shall make this payment by authorizing the release of funds in the same amount to Plaintiff' from the escrow account established for the project known as "Bristol Street Water Main Replacement", Project No. 14-6439. Payment should be addressed to "Vido Artukovich and Son, Inc./Vidmar, Inc., a Joint Venture" and sent to Michael Grimm at Monteleone & McCrory, LLP. Plaintiff agrees that the remaining balance held in escrow shall belong and be payable to Defendant. 4. GENERAL PROVISIONS 4.1 Further Assurances. The Parties agree to execute such other documents and to take such other action as may reasonably be necessary to further the purpose and terms of the Agreement. 4.2 Benefit and Burden. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 4.3 Waiver and Amendment. No breach of any provision hereof 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 hereof, This Agreement may be amended only by a written agreement executed by the Parties at the time of the amendment. 4.4 Severability. if any provision of this Agreement is held to be illegal or invalid by a court of competent jurisdiction, such provision shall be considered severed and deleted; Page 4 of 6 neither such provision, nor its severance and deletion, shall affect the validity of the remaining provisions of this Agreement. 4.5 Interpretation. The Parties and their attorneys have reviewed and revised the Agreement and therefore, the normal rule of construction to the effect that any ambiguities in an agreement are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 4.6 Governing Law. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted and enforced under the laws of the State of California. 4.7 Continuing Jurisdiction of the Court. The Parties to this Agreement agree that the court in this matter shall continue to have jurisdiction to enforce the terms of this Agreement pursuant to California Code of Civil Procedure § 664.6 and the Parties to this Agreement request the Court to retain jurisdiction over this action and these Parties for this purpose. 4.8 Incorporation — Entire Agreement. This Agreement, after full execution and delivery, memorializes and constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes and replaces all prior negotiations, proposed agreements and agreements, whether written or oral. Plaintiff acknowledges that no other party, nor any agent or attorney of any other party, has made any promise, representation, or warranty whatsoever respecting this Agreement. 4.9 Independent Advice of Counsel. The Parties to this Agreement acknowledge that they have consulted with and received the advice of an attorney admitted to practice law in the State of California, and that they voluntarily execute this Agreement relying upon the advice of counsel and their own, independent analysis of the terms of this Agreement. Page 5 of 6 N-2018-075 4.10 Attorneys' Fees and Costs. In the event of any litigation relating to a breach or enforcement of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 4.11 Counterparts/Copies. The Parties agree that this Agreement may be executed in counterparts, and a signed copy shall have the full force and effect of a signature on any original and shall be considered an original as to the party signing any such copy, A copy, PDF, or facsimile copy of the fully executed Agreement shall have the full force and effect of the original executed Agreement. DATED: 3 2018*ncidnm V d Artukovich & Son, rn,Inc., Plaintiff Vido Artukovich, Managing Partner DATED: S2018"Funk, a City At tant City DATED: 2018 Executive DiNctor of Personnel DATED: l Q' 2018 S PSan!�Ana, City ofendant By;�Rw ro�4t¢7s1L Its:_ V"t�vhue /MLA'--' aaHUIzaR Page 6 of 6 EFiK OF THE COUNCIL