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CONTRACT 4143 Settlement Agreement4143. 4 ,,4 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement ( "Agreement ") is made between SBC and or any other AT &T entity or subsidiary ( "SBC" or "AT &T "), and City of El Segundo ( "CITY "), (collectively, the "Parties ") WHEREAS, SBC is a corporation of the State of California; City of El Segundo is a California municipality; and WHEREAS, SBC has alleged that CITY owes it the principal amount of $1,232,450.00, plus interest, attorney's fees and costs for work furnished by SBC related to the "Douglas Gap Closure Project: A51047U" under Account No. 816 0813- 0813282 9 and pursuant to the Contract for Cost Sharing between The City of El Segundo and SBC, Agreement No. 3354 (the "Account "); and WHEREAS, the Parties represent and warrant that they own, in their entirety, the claims against each other and that same have not been sold or otherwise assigned, transferred or hypothecated to any third party(ies) and the Parties hereto agree to indemnify and hold each other harmless from and against any and all claims based on or arising out of any such non - disclosed assignment or transfer, or purported assignment or transfer of the claims arising out of or related to the Account or any portion thereof of interest therein; and WHEREAS, by this Agreement, the Parties intend to resolve and settle all claims between them arising from or relating to the Account and neither Party makes any admission as to its respective claims or defenses or to the claims or defenses of the other Party; and WHEREAS, this Agreement is entered into for the purposes of compromise and settlement only. NOW, THEREFORE, the Parties, intending to be mutually bound, agree as follows: '4 , 1. Recitals: The Parties hereby incorporate and verify the above recitals as if fully set forth herein. 2. Payment: CITY hereby promises and agrees to pay AT &T the sum of Nine Hundred Thirteen Thousand Seven Hundred Forty -Six Dollars and Seven Cents ($913,746.07), to be paid in one lump sum to AT &T (the "Settlement Amount "). Payment shall be made payable to the order of "AT &T Corp." and forwarded to Paul R. Franke, III, Franke Greenhouse List & Lippitt LLP, Granite Building, Second Floor, 1228 15`h Street, Denver, CO 80202. Payment shall be received no later than Monday, March 21, 2011. 3. Mutual Releases: Upon receipt by AT &T of the payment set forth in Paragraph Two above, and for adequate and valuable consideration exchanged between the Parties, the receipt and sufficiency of which is hereby acknowledged, AT &T waives, releases and discharges CITY and its respective parents, subsidiaries, partners or affiliates (and any of the owners, agents, attorneys, members, directors, managers, officers or employees of these entities) from any and all claims, causes of action, counterclaims, obligations, losses, costs, attorneys' fees, third party claims and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, including but not limited to, any and all rights which any of them may now have or hereinafter have against any party by reason of any matter, cause or thing arising out of or relating to the Account which have been, could have been, or should have been, asserted by AT &T in connection with the Account. CITY, for adequate and valuable consideration exchanged between the Parties, the receipt and sufficiency of which is hereby acknowledged, hereby waives, releases and discharges AT &T and its respective non - parent affiliates, subsidiaries or partners, including but not limited to SBC, (and any of the owners, agents, attorneys, members, directors, managers, officers or employees of AT &T / CITY OF EL SEGUNDO SETTLEMENT AGREEMENT -2- 4143. these entities) from any and all claims, causes of action, counterclaims, obligations, losses, costs, attorneys fees, third party claims and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, including but not limited to, any and all rights which any of them may now have or hereinafter have against any party by reason of any matter, cause or thing arising out of or relating to the Account or which have been, could have been, or should have been, asserted by CITY in connection with the Account. The term "affiliate" as used in this paragraph does not include AT &T's parent holding company, AT &T, Inc. 4. No Admission: By entering into this Agreement, no party is admitting the sufficiency of any claim, allegation, assertion, contention or position of any other party, nor the sufficiency of any defense to any such claim, allegation, assertion, contention or position. The Parties have entered into this Agreement in good faith and with a desire to forever settle all claims relating to the Account. 5. Disputed Claim: Each of the Parties understand and hereby agree that this settlement is in compromise of a disputed claim, that the Releases given are not to be construed as an admission of liability on the part of the party or parties hereby released, that the parties deny any liability on their respective parts, and that the parties hereto, by entering into this Agreement, attempt merely to avoid costly and lengthy litigation. 6. Attorneys' and Experts' Fees and Costs: Each of the Parties acknowledge and agrees that each of them is to bear his, her, or its own costs, expenses and attorneys' and expert fees. 7. Waiver of California Civil Code Section 1542: All Parties hereby acknowledge that this Agreement must apply to any and all claims or causes of action, whether known or unknown, suspected or unsuspected, and whether or not other facts might later come to light that AT &T / CITY OF EL SEGUNDO SETTLEMENT AGREEMENT -3- would have affected the decision to enter into this Agreement. Accordingly, the Parties hereby agree to waive any and all rights that they may have under California Civil Code §1542 and any and all similar provisions from other jurisdictions insofar as the same may apply to the matters in this Agreement. California Civil Code §1542 provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." The Parties understand that they may have sustained damages which have not yet manifested themselves and which are presently unknown, but nevertheless the Parties deliberately intend to and do hereby release any and all potential further or future claims or causes of action in any way connected with the facts and circumstances giving rise to the claim. The Parties warrant and represent that the effect and import of the provisions of Section 1542 have been fully explained to them by their attorneys and the Parties expressly acknowledge understanding of the same. 8. Other Actions: The Parties hereto represent and warrant that they will not commence any additional or subsequent actions against any third party(ies) for claims arising from or relating to the Account. Notwithstanding anything in this Agreement, in the event AT &T is ordered to disgorge any money paid under this Agreement in any avoidance action brought in any court, including bankruptcy court, AT &T shall have a general unsecured claim against CITY for the Settlement Amount as set forth under the Parties' contracts, less any payment(s) already received from CITY under this Settlement Agreement that are not ultimately disgorged. AT &T / CITY OF EL SEGUNDO SETTLEMENT AGREEMENT -4- 4143. 1 9. Multiple Counterparts: This Agreement may be signed by the Parties in multiple counterparts, each of which taken collectively shall constitute the original, fully executed Settlement Agreement. An executed facsimile, PDF, or TIF form is enforceable. 10. Miscellaneous: 10.1 Time and strict performance of this Agreement are of the essence. 10.2 In the event that any legal proceeding is initiated by either Party to enforce this Agreement, the prevailing Party will be entitled to recover all of its costs, interest, and expenses incurred therewith, including reasonable attorneys' fees. 10.3 This Agreement constitutes the entire understanding among the Parties with respect to its subject matter. This Agreement supersedes all prior agreements and representations, whether oral or written. This Agreement is intended as a final and definitive resolution of the Account. 10.4 Each Party to this Agreement has carefully read this Agreement, understands the contents hereof, and voluntarily signs this Agreement with intent to be bound by all the terms contained herein. 10.5 For purposes of construing this Agreement, each Party will be considered a drafter of this Agreement. 10.6 This Agreement will be construed and interpreted in accordance with the laws of the State of California without regard to rules on conflicts of laws. 10.7 In the event that any provision of this Agreement is found to be unenforceable by a Court or regulatory body of competent jurisdiction, the remaining provisions will remain in full force and effect. AT &T / CITY OF EL SEGUNDO SETTLEMENT AGREEMENT -5- 41�t. ..j 111.9 All notices to AT &T as required under this Agreement will In. sent to counsel far AT &T. Pnul 11. Franke, 111, Pi-mike Greenhouse List & Lippitt LLP, Cranite building, Second Floor, 1229 15 "' Strcct, Denver, CO 802021. All notices to CITY as required under this Agreement will be sent to City Attorney for City of I''l Segundo, Karl Berger, 350 Main Street, }~ I Segundo, CA 90245. 11.9 This Agreement is clTective immediatcly if hoth Parties execute this Agreement on the same day. Alternatively, this Agreement becomes effective on the date that the last Party executes the Agreement. AT &T COItP. By: Its: _ «'�GIry Gee - .�fCWrer�m I�st�: 3 ri 1 r BY aul R. Franke, ll Franke Greenhouse List & Lippitt, 1.1,1' C'ouirsel fir AT& T Corp, CITY OF F.I. SEGUNDO By. Its: -4 2 Date: By: AT&T/ CITY 01 EL SEGUNDO S1Wrl.tNI Nr AGRI t?MEN't .t;_ u