11-018 Settlement Agreement and Mutual Release, Elite Landscaping, Sterling Barnhart Park SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ( "Agreement ") is entered into by and between
Elite Landscaping, Inc. ( "Elite "), and the City of Cupertino ( "City "). Elite and the City are
collectively referred to as the "Parties."
RECITALS
1. Elite satisfactorily completed a landscaping project at Sterling Barnhart Park (the
"project ") for the City of Cupertino. During construction of the project the City received a Stop
Notice for the project from Eddie Peralta ( "Peralta "). Subsequently, Peralta and others filed an
action in Fresno Superior Court, entitled Mendez et al. v. Elite et al., case number IOCEG01815,
( "the Mendez action ") against the City and Elite for reasons stated in the Stop Notice. The City
and Elite retained separate counsel to defend each party under the lawsuit. The City and Elite
retained separate counsel in defense of the Mendez action.
2. On Octoberl 5, 2010 Elite accepted the City's tender and agreed to indemnify and defend
the City for any attorney's fees or damages for the Mendez action. Nothing in this Agreement
shall be interpreted as reducing or eliminating Elite's obligation to indemnify the City to the
extent the City incurs fees or damages from the Mendez action after October 15, 2010.
3. The City of Cupertino has paid all attorneys' fees that it incurred in the defense of this action
through October 15, 2010. The City agrees to indemnify Elite for any fees incurred prior to the
October 15, 2010 date and waives any attorney's fee incurred by the City from October 16
through related to the negotiation and preparation of this Agreement.
3. The Parties dispute the amount of attorney's fees owed by Elite to City for attorney's fees
incurred prior to October 15, 2010 acceptance of the tender by Elite ( "the Dispute "). The parties
have agreed to compromise the Dispute for a total payment of $2500 from Elite to the City.
4. The City will schedule the project for acceptance by the City Council at an upcoming City
Council meeting. The City will release the retention sum of $37,948.47 following the required
waiting time after Council approval of project acceptance and 35 days after the recording of the
Notice of completion, as required by General Conditions, Document 00700. The City will
expeditiously record the Notice of Completion after Council action.
5. City will not release the $37,948.37 until it has received the $2500.00 payment described
under this Agreement.
TERMS AND CONDITIONS
1. PAYMENT. Elite shall pay the sum of $2500 to City as full and complete payment for
attorney's fees for attorney's fees incurred by the City through October 15, 2010, when the
tender of the Mendez matter was accepted, as well as for any fees incurred by the City in
connection with the negotiation and preparation of this Agreement. Elite shall pay this sum
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within thirty days after the recording of the Notice of Completion, assuming the project has been
accepted by the City Council and assuming any required waiting time has elapsed.
2. RETENTION PAYMENT. City shall pay Elite the retention sum of $37948.47 as full
and complete payment of all sums owed to Elite following City Council acceptance of the
project and required waiting time has elapsed.
3. DENIAL OF LIABILITY AND RESERVATION OF RIGHTS. The parties agree that
neither this Agreement, nor anything contained herein, shall constitute, be interpreted, construed
or used as evidence of any admission by Elite o r its officers, agents or employees of any fact,
law, responsibility, liability fault or violation with respect to the Dispute.
4. MUTUAL RELEASE. Except for the obligations of the Parties expressed in this
Agreement, each party hereby fully releases and discharges the other party and their subsidiaries,
affiliates, successors in interest, officers, directors, agents, employees, attorneys, subcontractors
and other persons or entities connected in any manner with the other party from any and all
claims and causes of action (including charges of bad faith and claims for costs and attorneys'
fees, except as noted in this Agreement), arising prior to the date hereof, which they may have,
hold, or may hold in the future, whether known or unknown, suspected or unsuspected,
liquidated or unliquidated, asserted or not asserted, in law or equity, which are the subject of the
Dispute. This mutual release shall survive the termination of the Agreement.
5. CIVIL CODE § 1542 WAIVER. Except as set forth above, the Parties forever waive
any and all benefits and rights they may have, now hold or in the future may hold that concern,
arise from or relate to the Released Claims by reason of California Civil Code § 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 Parties understand that the facts giving rise to this Agreement might be found later to be
other than or different from the facts they now believes to be true, and that new facts might come
to their attention, and nonetheless they accept and assumes the risk of such possible difference in
the facts and agrees that the release above shall be and remain effective, notwithstanding such
different or new facts.
6. NOTICES. Notices to Elite shall be given to them at the following address: Jill
Stockbridge, Chief Financial Officer, Elite Landscaping, Inc., EMTS, Inc. 2792 Larkin Avenue,
Clovis, CA 93612. Notices to City shall be given to City Attorney, City of Cupertino, 10300
Torre Avenue, Cupertino, CA 95014 -3202.
7. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the
Elite and City with respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written, between them with respect to the matters contained in
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this Agreement. Each party enters into this Agreement based solely upon the representations set
forth herein and upon each party's own independent investigation of any and all facts such party
deems material.
8. SEVERABILITY. If any part of this Agreement is declared invalid for any reason, such
invalidity shall not affect the validity of the remainder of the Agreement and, to that end, the
provisions of this Agreement are hereby declared to be severable.
9. SUCCESSOR AND ASSIGNS. All of the terms, covenants, and conditions of this
Agreement shall be binding upon the parties and their respective successors and assigns.
10. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of
the City, its officers, agents, and employees, Elite, and the successors and assignees of the City
or Elite, and for the benefit of no other person. No other person shall have the rights of a third -
party beneficiary under this Agreement.
11. EXECUTION OF AGREEMENT. This Agreement is executed voluntarily and
without duress or undue influence on the party of or on behalf of the Parties, and the Parties
acknowledge that they have (a) read the Agreement, (b) have been represented in the preparation,
negotiation and execution of this Agreement by legal counsel of their own choice or hereby
waive their right to be represented; (c) have ha .d this Agreement fully explained to them by
counsel or hereby waive their right to explanation by counsel; and (d) are fully aware of the legal
effect to this Agreement or hereby waive the right to have the legal effect explained to them by
their own counsel. The Parties agree to execute any documents necessary to effectuate the intent
of this Agreement.
IN WITNESS WHEREOF, Elite and City have entered into this Agreement as of the date(s)
indicated below.
Dated: , 2011
City of Cupertino ite La Ca
4, 1,......„...c,
Dave Knapp Guy S ' . ckbridge
City Manager Presiden
Date: Date: 02/22/2011
Approved as to Form:
G . Baum
ecial Counsel
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