S. J. Amoroso Construction Co. Compromise Agreement settlement for Civic Center Expansion (see 85-041)r
10300 Torre Avenue
Cupertino, California 95014
Telephone: (408) 252-4505
DEPARTMENT OF THE CITY CLERK
October 23, 1989
Dennis Amoroso
S. J. Amoroso Construction Co., Inc.
348 Ham Drive
Foster City, CA 94404
P.O. Box 580
Cupertino, California 95015
CIVIC CEWEER
EXPANSION - z SE
CIVIC CIq� AMUZMr AND ASE
- Ca,g,�SE
We are e2"1c1 � ]T AND �7'ItJAL ItE�FA SE
ag�ments boy antra you feenore. files, one ) co
Construction CO., City
of CLlpert� � So J fora ing
1• Civic Cent
Expansion - ��rCanise
2. �rrunise gent arm Mutual
Release.
Agreement and Release.
Sincerely,
DOROTHY s
CITY OF CUPERTINO
DC/so
encl.
10300 Torre Avenue
Cupertino, California 95014
Telephone: (408) 252-4505
DEPARTMENT OF THE CITY CLERK
October 23, 1989
Wayne Holland
HED Architects
460 Seaport Court
Suite 202
Port of Redwood City,
Cit'4 of Cupertino
CA 94063
i MSI �I• �/�` • �• I' • • d' �� 1�1 •
P.O. Box 580
Cupertino, California 95015
We are enclosing to you for your files, one (1) copy of the following
Agreements by and between the City of Cupertino and S. J. Amoroso
Construction Co., Inc:
1. Civic Center Expansion - Compromise Agreement and Release.
2. Compromise Agreement and Mutual Release.
Sincerely,
0
DOROTHY CORNELIUS
CITY CLERK
CITY OF CUPERTINO
DC/so
encl.
COMPROMISE AGREEMENT AND MUTUAL RELEASE
The CITY OF CUPERTINO, and S. J. AMOROSO CONSTRUCTION COMPANY,
INC., hereinafter collectively referred to as "Claimant", and HED
ARCHITECTS, the SWA GROUP, landscape architects, CYGNA, structural
engineers, DMA ASSOCIATES, electrical engineers, and PRACTICON
ASSOCIATES, mechanical engineers, hereinafter referred to as "the
Design Professionals", in consideration of the promises made
herein, agree as follows:
Nature and Effect of Agreement
1. This Agreement consists of a compromise and settlement
by each party of that party's claims against the other parties, and
a release given by each party to the others relinquishing all
claims against the others. By executing this Agreement, each of
the parties intends to and does hereby extinguish the obligations
heretofore and hereafter existing between them. This Agreement is
not, and shall not, be treated as an admission of liability by any
party for any purpose.
Nature and Status of Dispute
2. (a) On September 6, 1988, S. J. Amoroso Construction,
Company, Inc. filed a claim against the City of Cupertino with the
American Arbitration Association designated as Claim No. 74-110-
0726-88, alleging breach of contract by or on the part of said
City. This claim has been resolved between S. J. Amoroso
Construction Company, Inc. and said City by the payment of the City
to S. J. Amoroso of the sum of $140,000.00.
(b) Said claim arose out of construction work done by
S. J. Amoroso Construction Company, Inc. for City known as Civic
Center Improvements for the City of Cupertino Project No. 87-2003.
The claim was for extra work and delay allegedly caused by City.
(c) The Design,Professionals provided design and other
services relating to Project No. 87-2003. The City of Cupertino,
in defending claim No. 74-110-0726-88, has taken the position that
if any extra work or delay in the Project resulted in damage to S.
J. Amoroso Construction Company, Inc., that said delay was caused
in whole, or in part,by the Design Professionals. The Design
Professionals deny responsibility for causing any extra work or
delay. However, the parties to this release wish, without
admitting liability, to resolve their differences with respect to
project 87-2003.
Mutual Compromise Agreement
3. Each party, in consideration of the promises and
1
concessions made by the others, hereby compromises and settles any
and all past, present, and future claims, demands, obligations, or
causes of action, whether based on tort, contract, or other
theories of recovery, which that party has or which may later
accrue to or be acquired by that party against the other parties
and the other parties' predecessors and successors in interest,
heirs and assigns, as well as past, present, and future officers,
directors, shareholders, agents, employees, parent and subsidiary
organizations, affiliates, and partners, arising or resulting from
the subject matter of the actions described in Paragraphs 2 of this
Agreement, and the parties' conduct relating to said Project No.
87-2003 on the following terms and conditions:
(a) The Design Professionals agree to pay to claimant
the sum of $45,000.00 in full settlement of claimant's claims past,
present, and future, against the Design Professionals.
(b) The parties agree that this compromise and
settlement shall constitute a bar to all past, present, and future
claims arising out of the subject matter of said Project
No. 87-2003.
Mutual General Release
4. Each of the parties on behalf of itself, its parent and
subsidiary organizations, affiliates, partners, agents, servants,
stockholders, employees, representatives, assigns, and successors
hereby fully releases and discharges the other parties and those
parties' parent and subsidiary organizations, affiliates, partners,
agents, servants, stockholders, employees, representatives,
assigns, and successors from all rights, claims, and actions which
each party and the above-mentioned successors now have or in the
future may have, against the other parties and the above-mentioned
successors, stemming from their differences arising from said
Project No. 87-2003.
Additional Consideration
5. In addition to the payment described in Paragraph 3(a)
of this Agreement, the City of Cupertino shall be allowed to
retain, free of any claim by the Design Professionals, all sums
that City has in its possession at the time of the execution of
this Agreement which have been claimed by the Design Professionals
to have been owed by City for work done on Project 87-2003.
Unknown Claims
6. (a) Claimant acknowledges and agrees that the release
it gives to the Design Professionals upon executing this Agreement
applies to all claims for injuries, damages, or losses to
2
Claimant's person and property, real or personal whether those
injuries, damages, or losses are known or unknown, foreseen or
unforeseen, or patent or latent, which Claimant may have against
the Design Professionals, and Claimant thereby waives application
of California Civil Code Section 1542.
(b) Claimant 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 or
exist in his favor at the time of executing
the release, which if known by him must have
materially affects his settlement with the
debtor."
and indicates that fact by signing this Agreement.
(c) Claimant 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 construction of said Project
No. 87-2003, it will not be able to make any claim for those
damages. Furthermore, Claimant acknowledges that it intends these
consequences even as to claims for damages that may exist as of
the date of this release but which Claimant does not know exist,
and which, if known, would materially affect Claimant's decision
to execute this release, regardless of whether Claimant's lack of
knowledge is the result of ignorance, oversight, error, negligence,
or any other cause.
Conditions of Execution
7. Each party acknowledges and warrants that its execution
of this release is free and voluntary, and duly authorized.
Execution of Other Documents
8. 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 appropriate to
give full force and effect to the terms and intent of this
Agreement.
Attorneys' Fees
9. Each party to this Agreement shall bear all attorney's
fees and costs arising from that party's own counsel with this
Agreement, and the matters referred to herein, and all related
matters. This paragraph shall be applicable to this entire
Agreement.
3
Entire Agreement
10. This Agreement contains the entire agreement between the
parties.
Effective Date
11. This Agreement shall become effective immediately upon
execution by Claimant and the Design Professionals.
Governing Law
12. This Agreement is entered into, and shall be construed
and interpreted in accordance with, the laws of the State of
California.
EXECUTED at , California, on
f / 1 , 1989.
CLAIMANT
CITY OF CUPERTINO
v
City'Clerk
HED ARCHITECTS
SWA GROUP
S.J. ROSO CONSTRUCTION COMP
APPROVED AS TO FORM:
G& - , " a�-
City Attorney
DESIGN PROFESSIONALS
CYGNA
DMA ASSOCIATES
PRACTICON ASSOCIATES
By
WAYN OL D, On beh if of
HED CHITECTS and the
DESIGN PROFESSIONALS
4
COMPROMISE AGREEMENT AND RELEASE
S.J. Amoroso Construction Co., Inc., hereinafter
referred to as "Claimant" located at 348 Hatch Drive,
Foster City, California 94404 and City of Cupertino,
hereinafter referred to as "City", located at 10300
Torre Avenue, Cupertino, California 95014, in
consideration of the promises made herein, agree as
follows:
Nature and Effect of Agreement
1. This Agreement consists of a compromise and
settlement by the parties of Claimant's claim against
City made through the American Arbitration Association
(Claim No. 74-110-0726-88) arising from the dispute
involving construction of certain improvement by
Claimant on real property owned by City known more
specifically as Civic Center Improvements for the City
of Cupertino Project #87-2003. Said claim sought sums
for extra work and for damages allegedly due to delay
caused by City.
In addition, City has filed a cross-claim in said
arbitration proceeding for damages in the form of liqui-
dated damages for delay in the completion of the project
allegedly caused by Claimant. By executing this Agree-
[D1.A/C] rev. 1 1
ment, each party intends and does hereby extinguish the
obligations heretofore existing between them arising
from this dispute. This Agreement is not, and shall
not, be treated as, an admission of liability by either
party for any purpose.
Compromise Agreement
2. In consideration of the payment of $140,000,
by City to Claimant, Claimant hereby compromises and
settles any and all past, present, or future claims,
demands, obligations, or causes of action for compen-
satory or punitive damages, costs, losses, expenses, and
compensation whether based on contract, tort, or other
theories of recovery which Claimant has, or which may
later accrue to or be acquired by plaintiff against City
arising from Claimant's performance of its contract with
City regarding Project 87-2003, and agrees that this
compromise and settlement shall constitute a bar to all
such claims.
3. Claimant agrees to dismiss with prejudice and
withdraw its Claim No. 74-110-0726-88 made with the
American Arbitration Association.
4. City agrees to dismiss with prejudice and
withdraw its cross-claim for liquidated damages with
respect to said arbitration proceeding described above.
Release and Discharge
5. Claimant hereby releases and discharges City,
and City's past, present, and future officers, agents,
[D1.A/C1 rev. 1 2
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
Claimant has or which may later accrue to or be acquired
by Claimant against City arising from the subject of the
claim described in Paragraph 2, above.
Unknown Claims
5.(a) Claimant acknowledges and agrees that the
release it gives to City upon executing this Agreement
applies to all claims for injuries, damages, or losses
to Claimant's person and property, real or personal
whether those injuries, damages, or losses are known or
unknown, foreseen or unforeseen, or patent or latent,
which Claimant may have against City, and Claimant
thereby waives application of California Civil Code
Section 1542.
(b) Claimant 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 have materially affected his settlement
with the debtor."
and indicates that fact by signing this Agreement.
(c) Claimant understands and acknowledges that
the significance and consequence of this waiver of
(D1.A/C1 rev. 1 3
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. Further-
more, Claimant acknowledges that it intends these con-
sequences even as to claims for damages that may exist
as of the date of this release but which Claimant does
not know exist, and which, if known, would materially
affect Claimant's decision to execute this release,
regardless of whether Claimant's lack of knowledge is
the result of ignorance, oversight, error, negligence,
or any other cause.
Inapplicability of Release
to Future Claims by City
6. The parties expressly exclude from the opera-
tion of this release the right of City to assert any
claim against Claimant arising out of any breach of
warranty, express or implied, issued by Claimant to City
for work Claimant did on Project 87-2003 or arising out
of any defect, negligent act, omission, or breach of
contract caused by Claimant with respect to Project
87-2003 which may appear or become known to City after
the execution of this Compromise Agreement and Release.
Advice of Attorney
7. Each party warrants and represents that in
executing this Agreement, it has relied upon legal ad-
vice from the attorney of its choice; that the terms of
[D1.A/C] rev. 1 4
this Agreement have been read and its consequences
(including risks, complications, and costs) have been
completely explained to it by that attorney; that it
fully understands the terms of this Agreement. Claimant
further acknowledges and represents that, in executing
this release, it has not relied on any inducements,
promises, or representations made by City or any party
representing or serving City.
Conditions of Execution
8. Each party acknowledges and warrants that the
execution of this release is free and voluntary.
Execution of Other Documents
8.(a) Claimant shall direct its attorney to exe-
cute a dismissal with prejudice of the claim described
in Paragraph 2, file it with the American Arbitration
Association, and deliver an executed copy to counsel for
the other party.
(b) Each party to this Agreement shall co-
operate fully in the execution of any and all other docu-
ments and in the completion of any additional actions
that may be necessary or appropriate to give full force
and effect to the terms and intent of this Agreement.
Attorneys' Fees
9. Each party to this Agreement shall bear all
attorneys' fees and costs arising from that party's own
counsel in connection with the claim, this Agreement,
and the matters referred to herein, the dismissal of the
[D1.A/C] rev. 1 5
claim, and all related matters. This paragraph shall be
applicable to this entire Agreement.
Entire Agreement
10. This Agreement contains the entire agreement
between the parties.
Effective Date
11. This Agreement shall become effective immedi-
ately upon execution by Claimant and City.
Governing Law
12. This Agreement is entered into, and shall be
construed and interpreted in accordance with, the laws
of the State of California.
Executed at , California, onzGl, 119,
19�.
S.J. AMOROSO CON CTION
-COMPA4Y, IN .
aimant
CITY OF CUPERTINO
By\
M r
ATTEST
City, erk
[D1.A/C1 rev. 1 6
APPROVED BY
i
- L
or Claimant
CH A LES LIAN
City Attorney