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HomeMy WebLinkAboutCoastside Concrete-Sousa v Espinoza and Ponce 2015-10-04SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (the "Agreement ") is entered into by defendants MARK EDMUND SOUSA and BRETT ALEXANDER SOUSA, individually and dba COASTSIDE CONCRETE and COASTSIDE CONCRETE & CONS'T'RUCTION, INC. erroneously identified as COASTSIDE CONCRETE AND CONS'IIZUCTION, !INC. in the Lawsuit, defined below (hereinafter collectively "Coastside "), CITY OF SAN RAFAEL, CITY OF UKIAH, AMERICAN CONTRACTOR INDEMNITY COMPANY (hereinafter' "ACIC" and collectively "Defendants ") and plaintiffs JESUS ESPINOZA (hereinafter "Espinoza ") and RODOLFO PONCE (hereinafter individually "Ponce" and collectively "Defendants "). Each may hereinafter be referred to as a "Party ", and are sometimes hereinafter collectively referred to as the "Parties." RECITALS Whereas, on or about April 15, 2015, Espinoza caused a Stop Payment Notice — Public works to be served on Coastside and CITY OF UKIAH; Whereas, on or about April 16, 2015, Espinoza caused a Stop Payment Notice — Public works to be served on Coastside and CITY OF SAN RAFAEL; Whereas, on or about June 5, 2015, Defendants filed Complaint in the Sonoma County Superior Court, Case No SCV257261 (the "Lawsuit "), which Complaint asserted, ''. among other things, causes of action for unpaid minimum and prevailing wage, violations of California Labor Codes, penalties, interest, and attorneys' fees and costs and recovery under contractors bond, and enforcement of stop notice; Whereas, the Parties have reached a settlement; and Whereas, it is the desire and intention of the Parties to memorialize in this agreement the terms of the settlement. Page 1 of 7 AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants, agreements and representations set forth herein, the Parties hereby agree as follows: 1. Incorporation of Recitals: Each of the above recitals is incorporated herein by this reference as though set forth in full. 2. Release of Stop Notice: Within 5 business days of the effective date of this Agreement, Espinoza will provide Coastside with a notarized Release of Stop Notice — Public Works as to the City of San Rafael and a notarized Release of Stop Notice — Public Works as to the City of Ukiah, blank forms for which are attached hereto collectively as Exhibit "1," by causing these to be delivered to Hedstrom & Coopersmith, LLP, 855 Lakeville Street, Suite 200 - E, Petaluma, CA 94952 3. Dismissal: Within 5 business days of all Parties executing this Agreement, Plaintiffs will provide Defendants' counsel Hedstrom & Coopersmith, LLP, 855 Lakeville Street, Suite 200 -E, Petaluma, CA 94952 with a Request for Dismissal dismissing their Complaint in its entirety, with prejudice, and with each side to bear their own costs and attorneys' ;fees, suitable for filing with the Sonoma County Superior Court. Coastside is authorized and instructed to cause the Request for Dismissal to be filed after it complies with Section 5, below. 4. W -9: Within 5 business days of the effective date of this Agreement, Espinoza, Ponce, and the Law Office of Stephan R. Wattenberg will provide Coastside with a W -9 for each by providing those W -9s to Hedstrom & Coopersmith, LLP, 855 Lakeville Street, Suite 200 -E, Petaluma, CA 94952. 5. Payment: Only after Defendants fulfill their obligations under Sections 2, 3 and 4 will Coastside be obligated to make any payments in satisfaction of this Agreement. Coastside shall pay Defendants $38,000.00 in satisfaction of all obligations as follows: a. Coastside will pay Espinoza $4,136.62 through payroll within 5 business days of Defendants satisfying Sections 2 and 3; Page 2 of 7 b. Coastside will pay Ponce $4,609.95 through payroll within 5 business days of Defendants satisfying Sections 2 and 3; c. Coastside will pay Law Office of Stephan R. Wattenberg $29,253.43 in penalties and costs within 5 business days of Defendants satisfying Sections 2 and 3; d. Coastside will cause all funds to be delivered to the Law Office of Stephan R. Wattenberg, 1074 East Avenue, Suite C, Chico, CA 959261 6. Release: Except for the obligations imposed by this Agreement, Plaintiffs release, remise and forever discharge Defendants owners,members, from any aid all claims, cross - claims, damages, indebtedness, liabilities, accounts, reckonings, demands obligations, costs, expenses, attorneys' fees, liens, actions and causes of action of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, arising out of or related to the claims raised in the Lawsuit. Except for the obligations imposed by this Agreement, Coastside releases! remises and forever discharges Plaintiffs from any and all claims, cross - claims, damages, ;indebtedness, liabilities, accounts, reckonings, demands, obligations, costs, expenses, attorneys' fees, liens, action "and - causes of action of every kind and-nature-whatsoever, whether_k .owan qr 11.13kriow4..,.... suspected or unsuspected, arising out of or related to the claims raised in the Lawsuit. 7. Waiver of Civil Code Section 1542: Plaintiffs and Defendants represent, s acknowledge and agree that they have been advised by legal counsel of their choice of section 1542 of the California Civil Code, which provides as follows: "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 Page 3 of 7 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Plaintiffs and Defendants specifically waive any and all rights and /or benefits they have or may have under California Civil Code § 1542 or any other statutes or common law principles of similar substance and effect, and further represent, acknowledge and agree that theirthe Party's knowing and voluntary waiver of the provisions of California Civil Code §1542 is an essential and material term of this Agreement without which the consideration set forth herein and relating hereto would not have been delivered, 8, No Admission of Liability: This Agreement represents the compromise of disputed claims between. the Parties and any payment or any obligation assumed hereunder is not to be construed or deemed an admission of liability by any Party. Neither this Agreement nor any terms hereof shall be offered or received as evidence in any proceeding in any form as an admission of any liability or wrongdoing on the part of the Parties released. 9. Binding on Successors: The terms of this Agreement shall be binding upon and shall inure to the benefit of the Parties' successors and assigns. 10. No Representations or Warranties: There are no representations, warranties, pro :ices:_ or other statements. \aeon, which the_ Pates, have relied, by whatever, name called, express or implied, written or oral, except as expressly set forth in this Agreement. The only representations, promises, warranties, or other statements upon which the Parties have relied are as set forth in this Agreement. 11. Additional Facts: In entering this Agreement, each of the Parties acknowledges that it may hereafter discover facts different from, or in addition to, those which it now knows or believes to be true with respect to the releases herein made and agrees that every release herein made by it is now and will remain effective notwithstanding the existence or the discovery of such additional facts. 12. Reservation of Rights: ACIC reserves its rights and defenses under the bonds, the General Indemnity Agreement, the law or otherwise with respect to Mark Sousa and Brett Page 4 of 7 Sousa dba Coastside Concrete, CoastSide ` Concrete & construction, Inc., and individual indernnitors, Mark Sousa, Denise Sousa, Brett Sousa, and Shannon Sousa. 13. Warranties: Each of the Parties expressly represents, warrants and agrees as follows: a. There has been no assignment, sale, transfer or hypothecation, by operation of law or otherwise, of any claim, right, cause of action, demand, obligation, liability or interest released; b. Each of the Parties has received independent legal advice from its attorneys with respect to the advisability of making the settlement provided for herein, with respect to the advisability of executing this Agreement, and with respect to the meaning of California Civil Code § 1542; c. Each of the Parties has made such investigation of the facts pertaining to the settlement and this Agreement and of all the matters pertaining to it as it deems necessary; Each of the Parties or responsible officer or agent thereof ;has read this Agreement and understands the contents thereof. Each of the individuals executing this Agreement on behalf of the respective Party ;possesses the power and authority to do so and thereby binds his respective Party; e. Each term of this Agreement is contractual and not merely a recital; and f. Each of the Parties is the sole owner of the respective aforementioned claims and demands and does hereby agree and undertake to indemnify and save entirely harmless those Parties released hereby from any and all claims, demands, liens, or suits, including, but not Limited to, the expenses of defense thereof (excluding attorney's fees), which may hereafter be asserted by any other person or persons claiming any interest in or to the said claim, demand, or cause of action hereinabove set forth. Page 5 of 7 14. Construction and Jurisdiction: This Agreement is to be executed and delivered within the State of California, and its validity, construction and performance shall be governed by the laws of the State of California. 15. Interpretation: Each of the Parties has participated in the preparation of this Agreement, and the Parties agree that the Agreement and its terms shall not be construed in favor or against any Party by virtue of the identity of its preparer. 16. Execution in Counterparts: This Agreement may be executed in one document signed by all Parties, or in counterparts, some or all of which may be transmittedjby facsimile and each of which will be deemed an original. If executed in separate counterparts, all such counterparts shall constitute but one and the same document which may be sufficiently evidenced by one counterpart signed by the Party who is to be charged with it. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day, month and year below written. Dated: October , 2015 COASTSIDE CONCRETE & CONSTRUCTION, INC. nett A. Sousa, President Dated: October , 2015 BRETT ALEXANDER SOUSA Dated: October , 2015 MARK EDMUND SOUSA Page 6 of 7 :I0105/2015 0828 lorterinrg Dated: October 2015 RODOL,P0 PONCF, Dated: October fic 153031125E25 P.008/008 2015 JESUS BS .INO,A Dated; October 20)5 CITY OF UKIAH By: Name: DaWd: October , 2015 CITY OF SAN IZAFARL By: Name: Title: Doted: Oetober , 2015 AMERICAN CONTRACTORS INDEMNITY COMPANY Th By: ' ; IFA Narne: dt, • ,La kee.ilirfe olzted /.42:41-1,7..4) 17 170-My Page 7 of 7 Dated: October , 2015 RODOLFO PONCE Dated: October , 2015 JESUS ESPINOZA Dated: October 1 , 2015 CITY OF UKIAH By: 1/:// Name. 4: i��.< Ce:tti c r�..fv� Title: C.2.,V, Dated: October , 2015 CITY OF SAN RAFAEL By: Name: Title: Dated: October , 2015 AMERICAN CONTRACTORS INDEMNITY COMPANY By: Name: Title: Page 7 of 7 Dated: October , 2015 RODOLFO PONCE Dated: October , 2015 JESUS ESPINOZA Dated: October , 2015 CITY OF UKIAH By: Name: Title: Dated: October; / , 2015 CITY OF AN RAF Pk By: Name:!"'tfrs.. SG *urL Title: C i" /4"" c't' Dated: October . , 2015 AMERICAN CONTRACTORS INDEMNITY COMPANY By:. Name: Title: Page 7 of 7 10/4/2015 12:14 7074339078 09130/2015 13:09 iittenterg MARIA VILLARREAL INM Ti 0 342 3825 UNCONDITIONAL RELEASE OF STOP NOTICE That certain Stop Payment Notice — Public Worlcs served by JESUS ESPINOZA, pursuant California Civil. Code Suction 6044, 9350 et Seel., with CITY OF SAN RAFAET , 1400 5th Avenue, San Rafael, CA 94904, on or about April 16, 2015, for labor furnished to COASTSIDE CONCRETE, 2160 W, Hearn Ave., Santa Rosa, CA 95407 for that certain parking lot improvement at or about.5th Avenue -- Lotitent Place, San Rafael, California for the owner thereof, CITY OF SAN RAFAEL, is Fully released and unconditionally released and discharged by agreement of the parties. Dated: September _, 2015 OC% ZOOS" Fay: EXHIBIT 1 SUS ESPINOZA PAGE 04/07 P.009 /010 See. jt ed ffil--gerfis'e CVO .74/(V). 10/.04/2015 12:14 707433907° MARIA VILLARREAL TNM PAGE 05/07 CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the Identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Califon Count of �� 6�m49 O personally appeared Mere insert Name and Tit e of the Office �2 //?l Z 1 Na e(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the orson(sj° whose name scribed to the within instrument and acknowl dged to me that ecuted the same in ' 4 r authorized capacity(i nd that bx ii�oir signature0# on the instrument the persortfe}, r the entity upon behalf of which the person* acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNE my hand and official seal. z z MARIA ViLLARREAL Commission # 2008472 Notary public • California Sonoma County My Comm. Expires Mar 4, 2017 Place Notary Seal Above Signatu OPTIONAL Though this section Is optional, completing this Information can deter alteration of the document or fraudulent reattachment of this for to an ynIntende document. Signature of Notary Public Descriptiorl of Attached Docjime t Title or Type' of Docum3 Number of Pages: Capacity(ies) Claimeoby Signer's Name: ) O Corporate Officer — itle(s): 'a rtner — 0 Limited 0 General dividuai 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer is Representing: ocument Date: ner(s�Other Than Named Above: Signer's Name: O Corporate Officer — Title(s): 0 Partner — 0 Limited 0 General ❑ Individual 0 Attorney in Fact O Trustee 0 Guardian or Conservator O Other: Signer Is Representing: '+`,+K. ?• :1Ar:K. .. "�_h. ".caMh; ...� ""Y ; ..a u.� �... : ^. .?^z •^t...s ..y ... w.,,,... ... /off s., : • ©2014 National Notary Association • www.NatlonalNotary.org ^ 1- 800 -US NOTARY (1 -800- 876 -6827) item #5907 10:04/2015 12:14 7e7433907 MARIA VILLARREAL TNM 0913012015 13:09 gattenberg crt 1034Z 9825 UNCONDITIONAL RELEASE OF STOP NOTICE That certain Stop Payment Notice — Public Works served by .TSUS ESPNOZA, pursuant California Civil Code Section 6044, 9350 et seq.; with CITY OP UKIAH, 300 Seminary Avenue, Ukiah, CA 95482, on or about April 15, 2415; for labor punished to COA$TSItiE CONCRETE, 2 160 W. Hearn Ave., Santa Rosa, CA 95407 for that certain underground iinprovcmen.t at or about Perkins Street for the owner thereof, CITY OF UKIAH, is fully released and unconditionally released and discharged by agreement of the parties. Dated: September, 2015 ®GroL612. - 2e/5 By: EXHIBIT 1 PAGE 06/07 P.010/010 see_ /9/1/4- &kix;t4)1-4,/71 6////70J-) 101'04/2015 12:14 7074339(r" MARIA VILLARREAL TNM CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT PAGE 07/07 CIVIL CODE § 1189 A notary document to which this certificate is attached, this and not the t verifies only the ruthfulness, accuracy, or of alidity of that document. the State of California Count of onGf1/?�l��1 DeW personally appeared Here Insert Name an 2e N me(s) of Signers) who proved to me on the basis of satisfactory evidence to be the person ] exec whose na he same in su• scribed to the within instrument and acknow dged to me tha�J lsaitbey- authorized capacltyga°s), and that b ignature{s)-on the instrument the person(e}r the entity upon behalf of which the person44acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS, y hand and official seal. ,Wrtr / Signature of Notary Public MARIA VILI.ARREAL Commission # 2006472 Notary Public - California Sonoma County M Comm. Expires Mar 4, 2017 Place Notary Seal Above OPTIONAL Though this section Is optional, completing this information fraudulent reattachment of this for/n to an n 1,11a /'l7Q. can deter alteration of the document or Document Date: • 9/3 %ate Description, of Attached Docume t Title or Type of Document:$ - of ' i' • /st-C'e Signer's Name: Si/ � f /%)D D Corporate Officer — Title(s): [] Partner -- ❑ Limited 0 General individual 0 Attorney in Fact O Trustee 0 Guardian or Conservator o Other: Signer Is Representing: Number of Pagr /fit �_Ser Other Than Named Above: • Car a yS� Signer's Name: O Corporate Officer — Title(s): ❑ Partner — ❑ Limited 0 General ❑ Individual ❑ Attorney in Fact ❑ Trustee 0 Guardian or Conservator O Other :. Signer Is Representing: Capacity(ies) 11, M....• m !rIXAMt• •x, yv ay.• .. ' Awns -... Ir, .-,s. �D'RC4.��+Pfcw ©2014 National Notary Association ° www.NationalNotary.org 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907