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Home My WebLink About1997 IID - Settlement AgreementSETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and entered into as of�, 1997, between IMPERIAL IRRIGATION DISTRICT ("District") and the CITY OF LA QUINTA ("City"), with reference to and based upon the following: RECITALS A. Granite Construction Company, Inc. ("Granite") was the general contractor for a street and sewer improvement project known as the Calle Tampico Improvement Project, which was performed in the City of La Quinta commencing in or about December of 1992 under contract between Granite and the City (the "Project"). B. On or about November 30, 1995, Granite filed a complaint against the City for alleged breach of contract relating to the Project, which complaint was entitled Granite Construction Company v. City of La Quinta, et al. Riverside County Superior Court Case No. 086195 (the "Complaint"). C. In the Complaint, Granite alleged that the City breached the contract between Granite and the City by failing to compensate Plaintiff for extra work and delays associated with the Project. D. The City denied each of Granite's allegations and raised certain affirmative defenses. The City also filed a Cross -Complaint (the "Cross -Complaint") against the Imperial Irrigation District ("IID"), alleging that any damages suffered by Granite were caused solely or partially by IID. IID has denied these allegations. E. The City and Granite have settled the underlying Complaint, and Granite dismissed the City as a defendant. 2901015610-0003/3062752.1 .06106197 -1- F. The City and the District believe it would be in their respective best interests to settle their differences on the terms specified in this Agreement. They have thus executed and delivered this Agreement in settlement, fully and forever, of all rights, duties, liabilities, claims, demands, damages, rights of action, and causes of action, whether known or unknown, between said parties, including any and all future claims which might be asserted by the City which in any way relate to the claims released herein. AGREEMENT NOW, THEREFORE, in consideration of the above Recitals and the agreements contained herein, it is mutually agreed upon by and among the parties hereto as follows: A. Obligations of the District: IID shall pay all costs and perform all work necessary to remove certain overhead electrical distribution lines within the City. One of said lines is located along the east side of Washington Street, from 450 feet south of the center line of Calle Tampico to 1,440 feet north of the center line of Calle Tampico. This line consists of 1,750 feet of double circuit, 397 kcmil all -aluminum conductor and 140 feet of single circuit 397 kcmil all -aluminum conductor. Additionally, the District will remove the single circuit, 397 kcmil all -aluminum conductor along the north side of Calle Tampico from a point on the eastern right-of-way of Washington Street 900 feet to the west. Said line removals shall also include the removal of 15 wood poles. The District shall expeditiously perform the above -described work, and shall seek no monetary contribution from the City for said work. B. Obligations of the City: As consideration for the performance of the obligations set forth in Paragraph 1 herein, the City shall dismiss the Cross -Complaint, with prejudice, by executing and filing a Request for Dismissal in the appropriate form. 2901015610-0003/3062752.1 .06/06197 -2- C. Release: (a) In consideration for the agreements of the District, as set forth herein, the City, on behalf of itself, and its representatives, attorneys, successors and assigns, does hereby release the District, and all former or present officers and employees of the District (the "Released Parties"), from any and all claims, actions and causes of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses, costs or expenses, including attorneys' fees, of any nature whatsoever, known or unknown, fixed or contingent, arising out of, based upon or in any way relating the claims made in the Complaint and Cross -Complaint. (b) Waiver of Civil Code Section 1542: By releasing and forever discharging claims both known and unknown, present and future, as above provided, the City expressly waives any rights under California Civil Code Section 1542, which provides: "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." The City waives and relinquishes any rights and benefits which it has or may have under Section 1542 of the Civil Code of the State of California. The City has performed a full and complete investigation of the facts pertaining to the settlement. Nevertheless, the City acknowledges that it is aware that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this Agreement, but it is its intention hereby to fully and finally forever settle and release any and 2901015610-0003/3062752.1 a06106/97 -3- all matters, disputes and differences, known or unknown, suspected and unsuspected, which now exist, may exist in the future relating in any way to the Complaint or Cross -Complaint, or heretofore have existed, as against the Released Parties and, in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. D. Advice of Counsel: The undersigned and each of them hereby declare and represent that in effecting this Agreement, each has received full legal advice as to their respective legal rights and each hereby certifies that it has read all of this Agreement and fully understands the same. E. Additional Documents and Instruments: Each of the parties hereto agrees to execute and deliver to each of the other parties hereto all additional documents, instruments and agreements required to take such additional actions as are required to implement the terms and conditions of this Agreement. F. No Assi ng_ ment: The City represents that it has made no assignment of the claims released herein, and that no signature other than that set forth below is required to effectuate this Agreement, including the release set forth herein. G. Attorneys' Fees: In any proceeding at law or in equity to enforce any of the provisions or rights under this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorneys' fees incurred therein by the prevailing party ,(including without limitation such costs, expenses and fees on any appeals) and if such prevailing party shall recover judgment in any such action or proceeding, such costs, expenses, including those of expert witnesses, and attorneys' fees shall be included in and as part of the judgment. 290/015610-0003/3062752.1 .06/06/97 -4- H. Applicable Law: The parties hereby agree that this Agreement is made, executed and entered into and is intended to be performed within the State of California and that this is a California agreement and is to be construed as such. I. Integration: This Agreement contains the entire agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations and agreements between the parties, whether written or oral. Each of the parties acknowledges representation by counsel throughout all negotiations which preceded the execution of this document and the document has been executed with the consent and upon the advice of counsel. Each of the parties acknowledges that no party or agent or attorney of any other party has made any promise, representation, or warranty, express or implied, not contained in this Agreement, to induce the other party to execute this instrument. J. Warranty of No Undue Influence: The parties hereby warrant and represent that they are not aware of any duress, menace, fraud, coercion, or undue influence which has caused any party to enter into this Agreement. Each of the parties hereby warrants and represents that it is not aware of any acts or conduct by which, in executing this Agreement, the mind of any of the parties hereto has been overcome by the will of another person. K. Fees and Costs Previously Incurred: Each party shall be responsible for its own costs and attorneys' fees incurred in connection with the Complaint and Cross -Complaint. L. Construction of Agreement: This Agreement shall be construed as if it were drafted by all parties. M. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument. 290/015610-0003/3062752.1 a06/06/97 -5- IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and Release. DATED: June //, 1997 APPROVED AS TO FORM: By Robert O.-Owen Attorney for City of La Quinta By: Dawn Honeywell City Attorney DATED: June_, 1997 APPROVED AS TO FORM: 10 Thomas V. Barrington Attorney for Imperial Irrigation District 290/015610-0003/3062752.1 a06/06/97 CITY OF LA QUINTA By: Glenda Holt IMPERIAL IRRIGATION DISTRICT In By: Michael Clinton General Manager