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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