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HomeMy WebLinkAboutMINUTES - 04261988 - 1.8 L TO: BOARD OF SUPERVISORS FROM: Phil Batchelor, County Administrator Cwtra C )sta DATE: April 18, 1988 CO^ SUBJECT: Settlement with Fibercel Corporation SPECIFIC REQUEST(S) OR RECOMMENDATION(_S) & BACKGROUND AND JUSTIFICATION In September, 1987, the Community Services Director ceased using cellulose insulation for home weatherization in favor of a different product. At that time about 1/2 of a standing order for cellulose insulation from the Fibercel Corporation remained undelivered. The corporation has claimed damages from the County and threatens suit. The dispute has been compromised for $13,500 payable to the corporation. County Counsel recommends (and County Administrator concurs) that the Board of Supervisors approve the settlement in that it is fair as to the merits and litigation would entail disproportionate legal and administrative costs ; and direct that the settlement be paid with funds from the Community Services Department. This Board Hereby Approves the recommendation and settlement, directs the Auditor-Controller to draw a $13,500 warrant (as provided above) payable to Fibercel Corporation and deliver it to the County Counsel for transmittal to the payee. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Ap r i.l 26 , 1988 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT �- AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. cc: County Administrator ATTESTED April 26 , 1988_ Auditor PHIL BATCHELOR, CLERK OF THE BOARD OF Community Services Director SUPERVISORS AND COUNTY ADMINISTRATOR Risk Management County Counsel M382/7-83 BY 'DEPUTY SETTLEMENT AGREEMENT Fibercel Corporation, its officers, directors, shareholders, agents, employees, parent and subsidiary organizations, affiliates, partners, heirs, predecessors and successors in interest and assigns, 1460 Churchill Downs Avenue, Woodland, CA 95695, hereinafter referred to as "Fibercel" and the County of Contra Costa and its Community Services Department, 651 Pine Street, Martinez, CA 94553, hereinafter referred to as "County," in consideration of the promises made herein, agree as follows: 1. This Agreement consists of a compromise and settlement by the parties of Fibercel's claim against County arising out of a dispute regarding County's Purchase Order Number 14698 for 40,000 bags of Cellulose insulation at a unit price of $4.58, dated April 11, 1986. This is further a release given by Fibercel to County relinquishing any and all claims against County. By exe- cuting this Agreement, each of the parties intends to and does hereby extinguish the obligations heretofore existing between them and arising from said Purchase Order. This Agreement is not, and shall not be treated as, an admission of liability by either party for any purpose. 2.a. In consideration of the payment of $13,500 by County to Fibercel, Fibercel hereby compromises and settles any and all past, present, or future claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, or other theories or recovery, which Fibercel has, or which may later accrue to or be acquired by Fibercel, against County, County's predecessors and successors in interest, heirs, and assigns, and County's past, present, and future officers, administrators, directors, agents, and employees, including, but not limited to the County's Community Services Department, arising from the subject matter of the dispute described above, and agrees that this compromise and settlement shall constitute a bar to all such claims. b. Fibercel agrees not to file a complaint against County based on the above-cited dispute. c. Fibercel and County agree that this compromise and settlement shall constitute a bar to all past, present, and future claims arising out of the sub- ject matter of the action described in Paragraph 1, above. 3. Fibercel hereby releases and discharges County, County's predecessors and successors in interest, heirs, and assigns and County's past, present and future officers, administrators, directors, agents, and employees, from, and relinquishes, any and all past, present, or future claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expen- ses, and compensation, whether based on tort, contract, or other theories of recovery, which Fibercel has or which may later accrue to or be acquired by Fibercel against County arising from the subject of the dispute described in Paragraph 1, above. 4.a. Fibercel acknowledges and agrees that the release it gives to County upon executing this Agreement applies to all claims for injuries, damages, or losses to Fibercel's person and property, real or personal whether those f f injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent which Fibercel may have against County, and Fibercel thereby waives application of California Civil Code Section 1542. b. Fibercel certifies that it has read the following provisions of California Civil Code Section 1542: "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 materially affected his settlement with the debtor." and indicates that fact by signing his initials here: c. Fibercel understands and acknowledges that the significance and con- sequences of this waiver of California Civil Code Section 1542 is that even if Fibercel should eventually suffer additional damages arising out of the dispute referred to in Paragraph 1, it will not be able to make any claim for those damages. Furthermore, Fibercel acknowledges that it intends these consequences even as to claims for damages that may exist as of the date of this release but which Fibercel does not know exist, and which if known, would materially affect Fibercel's decision to execute this release, regardless of whether Fibercel's lack of'knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 5. Each party warrants and represents that in executing this Agreement, it has relied upon legal advice from the attorney of its choice; that the terms of this Agreement have been read and its consequences including risks, complica- tions, and costs have been completely explained to it by that attorney; and that it fully understands the terms of the Agreement. Executat Wood land , California, on _,Ma rr , 1988. ..0- . - For Fibercel orporation orn SKf6r Wercel Corporation For County of Contra Costa Victor J. Westman County Counsel By: Arthur W. Walenta Assistant County Counsel -2-