HomeMy WebLinkAboutMULTISONICS, INC Vs. SILVERI & RUIZ CONSTRUCTION COMPANY ET AL - 1981-03-02 SETTLEMENT AGREEMENT
This Agreement is entered into as of _?n i.� y ,
1981, among Multisonics, Inc. ("Multisonics") , Silveri. & Ruiz_
Construction Company ("Silveri & Ruiz") and the City of
Huntington Beach ("Huntington Beach") .
On April 26, 1977, Multisonics filed an action against
Silveri & Ruiz, Huntington Beach and others in the Contra Costa_
County Superior Court. This action was subsequently transferred
to the Orange County Superior Court and assigned No. 27-54-45 -
SilvE•-.--i & Ruiz filed a cross-complaint in Action No. 27-54-45 on
or about October 3, 1977. Huntington Beach filed a crass-complaint
in. interpleader in Action No. 27-54-45 on or about November 25,
1977 and pursuant to such cross-complaint paid into court the
sum of. $25,000.
Multisonics, Silveri & Ruiz, anu Huntington Beach desire to
settle and terminate said action and to compromise and discharge
all claims controversies, demands or causes of action which any
party to this Agreement may have or claim to h-ve against any
othex party to -his Agreement which are in any way —nnected with
Orange County Superior Court Action No. 27-54-45. In consideration
of the promises and mutual covenants and agreements contained
herein, the parties hereto covenant and agree as follows:
1 The complaint, the cross-complaint of Silveri &-Ruiz and
the cross-complaint of Huntington Beach in Action 27-•54-45 shall
'i
1
be dismissed with prejudice as to all parties thereto. Each party
to this Agreement hereby releases and forever discharges each
other party from any and all claims, demands, actions, causes of
action, damages, costs, expenses, attorneys' fees, obligations and
liabil-ities of whatever kind or nature at law or in equity whether
or not now known, suspected or claimed which any party may have or
claim to have against any other party by reason of any act, cause,
matter or thing whatsoever which is in whole or in part the sub-
ject of the complaint or either cross-complaint of Action Nw_ 27-
54-45 or in any way related to said action.
2. The parties agree that the suns of $17,852 be paid to
Multisonics from the amount Laid into court and that, the balance
of said amount be paid to Silveri & Ruiz.
3. The part. z:s agree to enter into a Stipulation and Order
in the form attached hereto as Exhibit A providing for the dis-
missal of Action No_ 27-54-45 set forth in paragraph 1 hereof and
the payments to Multisonics and Silveri & Ruiz as set forth in
paragraph 2 hereof.
4.. Multisonics agrees to indemnify Silveri & Ruiz against
certain claims to the extent provided in this paragraph.
(a) riultisonic °gill indemnify Silveri & Ruiz against
iiabil ,ty for all claims brought on behalf or Tr-ascon, Inc. in
connection with the equipment supplied by Multisonicp for the
Hunting n Beach im,.rovements (as that term is defined in the
complaint in Action No. 27--54-45) and will reimburse Silveri &
Ruiz in the maximum amount of $17 852 with respect to such lia-
bility, provided that Diultisonics will not be liable in any such
-2-
r
case to the extent that any claim, loss, damage or liability (i)
arises from the negligence or willful misconuuct of Silvej:i & Ruiz
or (ii) arises from any default of Silveri & Ruiz under any
agreement between Trascon and Silveri & Ruiz other than the failure
of Silveri & ;Ruiz to pay money to ` rascon for said equipment.
(b) Multisonics shall not be obligated to indemnify
Silveri & R ,.Lz unless (i) Silveri & Ruiz shall give notice to
Multisonics within five (5) days after Silveri & Ruiz have actual
knowledge of any claim as tc which indemnity may be soujht; (ii)
Silveri. & Ruiz shall pez:nit Multisonics to assume the defense of
any such claim or any litigat:i�aii, =e-Liulting tlierc-from (provided
that Silveri &Ruiz may participate in such defense at its own
expense) ; and (iii) Silveri & Ruiz cooperates with Multisonics in
the preparation and presentation of the defense against such claim
as Maltisonics may reasonably require.
5. Each party warrants that. it has fully and carefully
examined the value of its claims, der.uands, causes of action and
i
damages concerning the sul- ect matter of Action No. 27-54-45 and
that it has been fully and completely advised by its counsel; each
party accepts that this Agreement in full and complete satisfac-
tion of any and all claims against any other party; and each partly
exgressl+ waives the righL to assert in the feature any clams,
�temands or causes" of action iris'ng out of or in con,�vc:ti:on with
the acts, events, matters and liabilities which axe the siibject of
this Agreement.
6. :h party to this jAgreetr.�•nt will bear its own attorncy's
fees and cots of suit arising out of o-c connected with Action No.
2 7'-5 4-45.
-3-
7. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their r>arFrits, su!3sidiaries
divisions or affiliates, :heir successors and assigns and their
heirs and personal representatives, and each of them.
8. Each person signing this Agreement warrants that ha or
she is the duly authorized representative and agent of the party
for whom he or she signs and that he or she is duly authorized to
execute this Agreement on behalf of said.. party.
9. This Agreement contains the entire agreement of the
undersigned with respect to the subject matter hereof and may not
be modified except by a written instrument duly executes by all
parties hereto.
10. It is understood and :.greed that no promises, prese,ita-
bons, understandings o� warranties have been made by any party,
hereto with respect to this Agreement other than those which are
expressly contained herein.
11. In executing t--his Agreement, each pLr}'" hereby waives
the benefits and provisions of California Civil Code Seccion 1542'
which provides: "A general release does not extend to claims
which the creditor does not know ox suspect to exist in his favor
at the time of executing Vie xeletAser, which ' f known by him must
have materially affe ,.t.ed his settlement with the debtor. "
MULT SONIcs INC. SI_LVERI & RUIz �
CONSTRUCT 0?d CO7;is
Byy'
C%"TY OF HUNTEi -TON BF.-ACH ATTEST:
By., M
C.q Clerk
-4-
.
7. This Agreement shall inure to the benefit of and bFe
binding upon the parties hereto, their ,parents, subsidiaries,
divisions or affiliates, their successors and assigns and their -
heirs and personal representatives, and each of them.
8. Each person signing this Agreement warrants that he or
she is the duly authorized representative and agent of the party
for whom he or she signs and that he :or she is duly authorized to
execute this Agreement on behalf of said party.
9. This Agreement contains the entire agreement of the
undersigned with respect to the subject ;natter hereof and may no,
be modified except by a written instrument duly executed by all
parties hereto.
10. It is understood and agreed that no promises, presenta-
tions, understandings or warranties have been ma'e by anu party
hereto with respect to this Agreement other than those which are
expressly contained herein.
11. In executing this Agreement, each party hereby waives
` the benefits az:d provisions of Califa �:ia Civil Code Section 1542
which provides: "A general release does not extend to claims
I` which the crer for does i..ot knota or suspect to exist in his favor
at the time of cxecuUng the release, which if kPown by him mast
hav>e materially affected his settle-ment with the debtor."
MULTI NICS, INC. BTS`3Fjr-t "LUiZ /'`1
CON�FL]CT�{S� COM'D Y�.-�/
By-,
CITY OF HU14T.INGTON BFAC I
BY: Mayor- L:�K:
-4- Cl y 33:erk
REVIEWED AND APPROVED: APPROV D AS TO FORM:
r
Acting City Administrator City Attorney
APPROVED AS TO CONTENT:
w�
t�
Director of Public Works
f?
RESOLUTION NO. 4966
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HUNTINGTON BEACH AUTHORIZING 'TH'E, MAYOR AND CITY
CLERK TID EXECUTE SETTLEMENT AGREEMENT IN THE
MATTER OF MULTISONICS, INC. VS. SILVERI & RUIZ
CONSTRUCTION CO. , TRASCON, SAFECO INSURANCE
COMP4NY OF AMERICA, CITY OF HUNTINGTON BWH,
ET AL.
WHEREAS the City g of Huntington Reach was as a
party defendant in the matter of Multisonics, Inc. vs. Silver
& Ruiz Construction Co. Trascon Safeco�Insurance Company of
America, et al., Orange County Superior Court Case No. 27-54-45,
arising out of a stop notice, filuC with the city by Multiso-,ices ,
Inc. for the furnishing of material and equipment on Ellis r-enue
Improvements', CC-246 and
The parties to such lawsuit wish to enter Into a settlem-nt,
agreement in order to conclude this matter with dispatch,
NOW, THERFORE, BE IT RESOLVED by the City Council of the
City of Huntington Beach that it does authorize and direct tk.
Mayor and City Clerk to execute the settlement agreement, P
of which is attached hereto and by this reference male a part
heroof, in the ratter of Multisonics . Inc. vs. Silveri & Ruiz
Construction o. et awl. , Orange County Superior Court Case,
No, 27-+54- 45.
PASSED AND A IPTED, by the City Council of the City of
HuntLngton E-ach , :t a regulate mecating t1tereof held on the ?nd�
play of March
Mayor
ATTEST APPROVa) AS TO FORM:
City erg City Attorney
REVIEWED AND APPROVED: INITIATED AND APPROVED:
Acting City Acim nistrator Director of Public Works
i
. No. 4966
SATE OF CALIFORNIA
Court of ORANGE f ee
CITY OF RuNrING'TON BEACH
1, ALICIA M. WENTWORTH, the duly elected, qualified City
Clerk of the City of Huntington Beach, and ex-officio Clerk of the
City Council of said City, do hereby certify that the whole number of
members of' the City Council of the City of Huntington Beach is seven;
that the foregoing resolution was passed and adopted by the affirmative
vote of more than a majority of all the members of said City Council
at a regular meeting thereof held or the 2nd day
of M a r ai 1981 , by the following vote,
AYES; Councilmen-
P`attinson, Themas, Finley, Bailey, MacAllister, Mandic
NOES- C'-7uncilmen;
None:
�c
ABSENT: Councilmen;
Kelly
City Clerk and ex-officio Clerk
of the City Council of the City
of Huntington Beach, California
i
Jun y John
REQUEST FOR CITY COUNCIL ACTION
Submitted by Paul E. Cook, Director Department Public }Yorks
Date Prepared Februai,r 17_ 19 81 Backup Material Attached ExJ Yes E] No
Subject SETTLE ENT OF I�AI9SUIT, KLTISONIC vs S UVERI and RUIZ FYITH THE CITY ALSO
1`
NAMED AS DEFENDANT' CC-246/247
City Administrator's Comments
APPROVED BY CITY COUNCIL
Approve as Recomme zded _ �._ =19 �
Statement of Issue, Recommendation,Anaiysis, Funding Source,Alternative Actions: 11
STATEMENT OF ISSUE:
As one cf the named defendants in the subject lawsuit, City agreement to the settlement
is required.
RECONMENDATION:
Adopt the resolution authorizing the Mayor and the Ci-y Clerk to ,;ign the settlement
agreement.
ANALYSIS:
tl lawsuit arose out of a, 1976 City contract, between a material. supplier and the prime
contractor and his sub-contractor. The City as owner of the project, was also named as
one of the defendants.
The City withheld the disputed monies from layments due the prime contractor, depositing
them with the Superior Court.
The parties have now agreed to settle the case ar.d stipulate t,a the division of the
withheld monies.
The City has ,nothing coming out rf this, hr4ever as one of the defendants the City must
execute the settlement agreement.
FUNDS:
No cost to the City.
PZ✓C:JM:ik'
P10 3na
RUT/-\N & TUCKER
ATTORNEYS AT LAW
A PAR'•NEP5—P CyN5:-, N_"1 c« r_ANTA ANA rP;�Ct�..
%Z. R.SR 56D BiO NEY!PORT.�,ENT'EP CRi VE, S'v'•E: 9,0 J,E:..S FAPGO BAIA BU'«.E•N.1
41w 'v._ CENTER rep-.E wFsl
CApLE Ao;rRE'SS R:.;TAN
P05T QFFsLE 00x 7369 SANTA AMA, A 4tCRN�A 9<772
TUG
TSVX 910 596-,883 NEWPORT BEACH, CALIFORNI. 92660 'E.Ecea C."4,5B8 Eaa
TELECO-ER :71.4, 7Sa.8993 17141 769'0833 •4' 835 -u
March 18, 1981.
N REPLr PLEASE.REFEP TO
City Attorneys Office
P. 0. Box 1-10
Huntington Beach, California 92648
Attention: Ms. Betty Barilla
Re: Multisonics Inc. v. Silveri & Ruiz
Construction Co. , e". al Orange
County Superior Court Action No. 275445
Dear Ms, Br:.rilla:
In accordance with your request, enclosed please find
a fully executed page 4 of the Settlement Agreement in con-
nection with the above entitled matter.
Very truly yours,
R1TAN & TUCKED,
'U.f<,, 61—
Richard A. Curnutt
RAC:nw
Enc.
e: