HomeMy WebLinkAboutMINUTES - 05021989 - 1.71 1-071 �
THE BOAR® OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on May 2, 1989, by the following vote:
AYES: Supervisors Powers , Fanden, Schroder and Torlakson
NOES: None
ABSENT: Supervisor McPeak
ABSTAIN: None
SUBJECT: Settlement of Litigation -- William P. Young, Inc. v.
Contra Costa County, Superior Court No. C88-04696 .
Upon the recommendation of the Public Works Director and the County
Counsel;
NOW, THEREFORE, IT IS BY THE BOARD ORDERED THAT:
1 . The Board approves the settlement of the above-captioned action as
set forth in the attached settlement agreement.
2. The Board authorizes the Chair to sign the attached settlement
agreement on behalf of the County.
3 . The Board authorizes the County Counsel to take all stens
necessary to carry out the settlement.
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: ...MAY„2_1989
PHIL BATCHELOR.Clerk of the Board
of 8upsry sm iurd County Administrator
.__.Deputy
DFS:tb
[tbl:dfs\memo\youngord.f]
Orig. Dept: County Counsel
cc: County Administrator
Public Works Director
William P. Young, Inc. (via County Counsel)
/i7//
COMPROMISE AGREEMENT AND RELEASE
The COUNTY OF CONTRA COSTA, a political subdivision of the
State of California (referred to as "COUNTY" ) , and WILLIAM P.
YOUNG, INC. , a California corporation, and AVAR CONSTRUCTION
SYSTEMS, INC. , a California corporation (referred to collectively
as "YOUNG" ) , in consideration of the promises made in this
document, agree as follows:
1. This agreement consists of a compromise and settlement
by the parties of YOUNG's claim against COUNTY arising from the
dispute described in Paragraph 2, and a release given by YOUNG to
COUNTY relinquishing its claim against COUNTY. This agreement is
not, and shall not be treated as an admission of liability by
either party for any purpose, or as an admission that the action
described in Paragraph 2 below is or was lacking in merit.
2. On November 9, 1988, YOUNG filed a complaint against
COUNTY in the Superior Court in and for the County of Contra
Costa, California, designated as Case' No. C88-04696 alleging
breaches of contract and covenants on the part of COUNTY and a
common count for the reasonable value of work, labor, services,
material and equipment performed or provided to COUNTY by YOUNG.
AVAR CONSTRUCTION SYSTEMS, INC. , while not a party to the
construction agreement, is the subcontractor and assignee of
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WILLIAM P. YOUNG, INC. and has asserted various claims against
COUNTY. AVAR CONSTRUCTION SYSTEMS, INC. is made a party to this
agreement and release and shall be subject to all terms and
conditions of the same.
3. (a) In consideration of the payment of FORTY-TWO THOUSAND
EIGHT HUNDRED ELEVEN DOLLARS ($42,811.00) by or on behalf of
COUNTY to YOUNG, which payment shall be made no later than May 1,
1989, YOUNG 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 of recovery, which YOUNG has or which may later
accrue to or be acquired by YOUNG against COUNTY, COUNTY's
predecessors and successors in interest, assigns and COUNTY's
past, present and future officers, board members, agents and
employees arising from or in connection with the written
construction agreement entered into on September 5, 1986 by
COUNTY and WILLIAM P. YOUNG, INC. , which agreement provides for
the installation and construction of a certain slide repair
project, known as the Zander Drive Slide Repair Project, and any
other claims arising from the subject matter of the complaint
described in Paragraph 2 of this agreement. The parties agree
that this compromise and settlement shall constitute a bar to all
such claims .
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(b) YOUNG agrees to dismiss with prejudice the complaint
against COUNTY described in Paragraph 2 .
4 . YOUNG hereby releases and discharges COUNTY, COUNTY's
predecessors and successors in interest, assigns and COUNTY's
past, present and future officers, board members, 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, expenses and
compensation, whether based on tort, contract or other theories
of recovery, which YOUNG has or which may later accrue to or be
acquired by YOUNG against COUNTY arising from or in connection
with the agreement, the project or the subject matter of the
complaint described in Paragraphs 2 and 3(a) . Notwithstanding
the foregoing, the release and discharge described in this
agreement shall not apply to Converse Consultants, Inc. , its
officers, agents, employees, predecessors, successors or assigns.
5. (a) YOUNG acknowledges and agrees that the release given
to COUNTY applies to all claims for injuries, damages or losses
which YOUNG may have against COUNTY, whether those injuries,
damages or losses are known or unknown, foreseen or unforeseen,
or patent or latent, and YOUNG hereby waives application of
California Civil Code section 1542 .
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(b) YOUNG certifies that it has read the following
provision 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 have materially affected his settlement
with the debtor. "
and indicates that fact by initialing this agreement here:
(William P. Young, Inc. )
(Avar Construction
Systems, Inc. )
(c) YOUNG understands and acknowledges that the
significance and consequence of this waiver of California Civil
Code section 1542 is that even if it should eventually suffer
additional damages arising out of the facts referred to in
Paragraph 2, it will not be able to make any claim for those
damages. Furthermore, YOUNG acknowledges that it intends these
consequences even as to claims for damages that may exist as of
the date of this release but which YOUNG does not know exist, and
which, if known, would materially affect YOUNG's decision to
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execute this release, regardless of whether YOUNG's lack of
knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
6 . 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, complications, and costs)
have been completely explained to it by that attorney; and that
it fully understands the terms of this agreement. YOUNG further
acknowledges and represents that, in executing this release, it
has not relied on any inducements, promises, or representations
made by COUNTY or any party representing or serving COUNTY,
except those expressly set forth in this agreement.
7 . Each party acknowledges and warrants that its execution
of this release is free and voluntary.
8. (a) YOUNG shall direct its attorney to execute a
dismissal with prejudice, as to COUNTY, of the complaint
described in Paragraph 2, file it in the court specified in that
paragraph, and deliver an executed copy to counsel for COUNTY.
(b) Each party to this agreement shall cooperate fully in
the execution of any and all other documents and in the
completion of any additional actions that may be necessary or
5
appropriate to give full force and effect to the terms and intent
of this agreement.
(c) Upon request by COUNTY, YOUNG shall promptly execute
and deliver to COUNTY a written assignment of all of its claims
and causes of action arising under or relating to the
construction agreement or the project described in Paragraphs 2
and 3(a) .
9 . No party to this agreement shall be deemed a prevailing
party for purposes of recovering costs, attorney's fees or other
relief . Each party to this agreement shall bear all attorney's
fees and costs arising from that party's own counsel in
connection with the complaint, this agreement, and the matters
referred to in this agreement, the dismissal of the complaint,
and all related matters, and shall not seek reimbursement of the
same from any other party to this agreement.
10 . This agreement contains the entire understanding between
the parties .
11. This agreement shall become effective immediately upon
execution by YOUNG and COUNTY and payment to YOUNG of the sum
specified in Paragraph 3(a) above.
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12. This agreement is entered into, and shall be construed
and interpreted in accordance with the laws of the State of
California.
Executed at _ f o5lo (f 7��, , California, on
5 , 1989 .
i
WILLIAM P. YOUNG, INC. ,
a California corporation
By:
Approv as to form: Its
McINE Y & DILLON
By. " I X
Randy O Wri t AVAR CONSTRUCTION SYSTEMS,
1 INC. , a California corporation
Its
COUNTY OF CONTRA COSTA
By:
Its Chair, Board of Supervisors
' Approved as to form:
Victor J. Westman
County Counsel ATTEST: Phil Batchelor, County
-- Administrator and Clerk
lid of the Board of
By: f Supervisors
Deputy
B
Deputy
7
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GENERAL ACKNOWLEDGMENT NO.201
State of t,aX 1 T'drh 1,9 On this the 5th day of AP//'l 19–V,before me,
SS.
County of San 1 i f2a a
the undersigned Notary Public,personally appeared
l
❑ personally known tome
OFFICIAL SEAL 1�1 proved to me on the basis of satisfactory evidence
VALERIE L PITZEN to be the person(s)whose namelK i S subscribed to the
NOWY
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N'1 MATM within instrument,and acknowledged that �� executed it.
R WITNESS my hand and official seal.
oA►C nn.Emp,OcL 19.1962
Notary's Signature
7110122 NATIONAL NOTARY ASSOCIATION•23012 Ventura Blvd.•P.O.Box 4625•Woodland Hills,CA 91364
CORPORATA ACKNOWLEDGMENT NO.202
State of 01
this the day of 19 before me,
SS.
County 1L��� ( '��� ��I• � f�Q-1(l
' the undersigned Notary Public,personally appeared
,76 y(/ 'e1 Z � (�:e
� personally known to me
.roved to me on the basis of satisfactory evidence
OF FiC?.AL EraL to be the er n(s)who executed the within instrument as
PHI r �t3t TRN�S i(
GES ,m 1 - or on behalf of the corporation therein
r vRP:'.i
amed,and acknowledged to me that the corporation executed it.
WITN SS my hand and official s
2a
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Notary s Signature
ATTENTION NOTARY:Although the information requested below is OPTIONAL,it could
prevent fraudulent attachment of this certificate to another document.
THIS CERTIFICATETitle or Type of Document
MUST BE ATTACHED Number of Pages Date of Document
TO THE DOCUMENT g -T—�
DESCRIBED AT RIGHT: Signer(s)Other Than Named Above jYl
9)
7120 122 NATIONAL NOTARY ASSOCIATION•B236 Remmet Ave.•P.O.Box 7164•Canoga Park,CA 91304-7184
TO: BOARD OF SUPERVISORS
FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR
DATE: May 2, 1989
SUBJECT: Increase of Project Contingency Funds and Approval of
Contract Change Order No. 3 for the Zander Drive Slide
Repair Project in Orinda, Project No. 0671-6R6735-83 .
Specific Request(s) or Recommendation(s) & Background &
Justification
RECOMMENDED ACTION:
APPROVE Project Contingency Fund increase of $38, 000. 00 and,
AUTHORIZE the Public . Works Director to execute Contract Change
Order No. 3 in the amount of $42 ,811. 00 to compensate the
contractor, William P. Young, Inc. , for expenses claimed due to
plan changes and resulting additional work.
FINANCIAL IMPACT:
Seventy-five percent of the costs are reimbursable by FEMA. The
other twenty-five percent will be funded from County road funds.
REASONS FOR RECOMMENDATIONZBACKGROUND:
The contractor filed a claim for his increased costs due to the
changed plans. Contract Change Order No. 3 represents the amount
of settlement of said claim.
CONSEQUENCES OF NEGATIVE ACTION:
The lack of approval would preclude payment to the contractor for
the expenses claimed.
Continued on attachment: yes Signature:
Recommendation of County Administrator
Recommendation of Board Committee
Approve Other:
Signature(s) :
Action of Board on: MAY 2 1989
Approved as Recommended X Other
Vote of Supervisors I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
_ Unanimous(Absent IIZ ) AND ENTERED ON THE MINUTES OF THE
Ayes: Noes: BOARD OF SUPERVISORS ON DATE SHOWN.
Absent: Abstain:
Attested MAY 2' 9999
Orig. Div. : PW(Constr) Phil Batchelor
cc: County Administrator Clerk of the Board of
Auditor-Controller Supervisors and County
Public Works-Design Administrator
Accounting
R. Bruno
Contractor
BJK/sa By �4)dqgle
i DEPUTY
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