HomeMy WebLinkAboutSwissRe Corporate Solutions America Ins Corp; Roofing & Solar Construction 2023-10-20 COU No. 2324-147
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into as of October 20, 2023 (the
"Effective Date"), by and between the City of Ukiah (the "City"), Roofing& Solar Construction,
Inc. ("RSC"), SwissRe Corporate Solutions America Insurance Corporation f/k/a North American
Specialty Insurance Services ("NASIS"), Thomas Hise ("Hise"), and the Garland Company, Inc.
("Garland"). The parties to this Agreement may be referred to in this Agreement collectively as
the"Parties"or individually as a"Party."
RECITALS
A. On or about October 2, 2020, the City, as owner, and RSC, as prime contractor,
entered into a written contract (the "Contract") whereby RSC agreed to remove and replace the
roof of the Grace Hudson Museum (the"Project") and the City agreed to pay for that work. Hise
was the Architect for the Project. Garland was a material supplier to RSC for the Project, and
NASIS was RSC's surety for the Project.
B. Disputes arose between the City, RSC, NASIS, Hise and Garland concerning
RSC's work on the Project and,on or about October 1, 2021, the City terminated the Contract for
Default.
C. On January 13,2022, RSC filed a complaint in Mendocino County Superior Court,
Case No. 22CV00048, against the City for damages and breaches of contract; on or about March
10, 2022, the City filed a cross-complaint against RSC and NASIS for breach of contract and
recovery on performance bond; on or about April 8, 2022, RSC filed a cross-complaint against
Hise and Garland for breach of contract, equitable indemnity, and contribution, and which was
amended on October 25,2022; on July 22,2022, Garland filed a cross-complaint against RSC and
Hise for declaratory relief,negligence,equitable indemnification,and contribution,and which was
amended on November 9, 2022; and on June 21, 2023, Hise filed a cross-complaint against RSC
for express indemnity, equitable indemnity, implied indemnity, apportionment of
fault/contribution and declaratory relief(collectively,the"Litigation")
D. Now, mindful of the delay, expense, and uncertainty of litigation,the City, RSCO,
NASIS, Hise, and Garland have agreed to settle the Litigation on the terms and conditions stated
herein. Nothing in this Agreement should be construed as an admission or concession of any
liability by the Parties.
E. This Agreement shall be enforceable pursuant to California Code of Civil
Procedure section 664.6, as more particularly described below.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and promises herein set forth, the
Parties agree as follows:
1. This Agreement shall be executed by authorized representatives of the Parties.
2. Within thirty(30) days of execution of this Agreement by the Parties:
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a. RSC shall file a request for dismissal of its complaint and cross-complaint in
the Litigation, specifying that each party will bear its own attorneys' fees and
costs;
b. Garland shall pay to the City the sum of One Hundred Fifty Thousand Dollars
($150,000) and shall file a request for dismissal of its cross-complaints, with
prejudice, in the Litigation, specifying that each party will bear its own
attorneys' fees and costs;
c. Hise shall pay to the City the sum of Fifty Thousand Dollars($50,000)and file
a request for dismissal,with prejudice,of its cross-complaints in the Litigation,
specifying that each party will bear its own attorneys' fees and costs;and
d. Garland shall advance a credit to the City in the amount of$100,000 to be used
by the City to purchase materials from Garland for City of Ukiah Project No.
PC 18406.
3. RSC shall pay to the City the total sum of One Hundred Eighty Thousand Dollars
($180,000) in nine equal installments of Twenty Thousand Dollars($20,000).The first
installment payment shall be made no later than ten days after execution of this
Agreement. The following eight installment payments shall be made no later than the
first of every month, beginning on January I, 2024, and continuing through and
including August 1, 2024. At its option, RSC may pre-pay any of the installment
payments without any penalty. In the event RSC fails to timely make any payment to
the City in accordance with this Agreement,the total sum shall be immediately due and
owing from RSC.NASIS shall remain liable for the amounts owed by RSC to the City
unless and until RSC pays the City timely and in full in accordance with the terms of
this Agreement.
4. A Stipulation for Entry of Judgment shall be executed contemporaneously with the
execution of this Settlement Agreement by RSC and NASIS and shall be held by the
City's counsel to secure the payments due under Paragraph (3)of this Agreement. The
City's counsel will hold the unfiled original Stipulation and will return the same to
RSC's counsel promptly upon RSC's receipt of the final settlement installment
payment. If RSC fails to pay any of the installment payments when due pursuant to
Paragraph (3) of this Agreement, the City may apply to the Court by motion and enter
the Stipulation for Entry of Judgment for $180,000 less the settlement payments
actually received by the City from RSC. The Stipulation for Entry of Judgment is
attached hereto as Exhibit A. Prior to filing the Stipulation for Entry of Judgment,the
City shall give ten days written notice by email to RSC's counsel. RSC and/or NASIS
may cure any payment default within ten days from the date notice was given. This
Agreement shall not be enforceable by RSC or NASIS against the City unless and until
the City receives the Stipulation, fully executed, by RSC and NASIS.
5. Within ten (10) days of receipt of the payments described in Paragraph (2) and
clearance of the same from the banks upon which they are drawn, the City shall file a
Notice of Conditional Settlement of the Litigation. Within ten (10) days of receipt of
the payments described in Paragraph(3)and clearance of the same from the banks upon
which they are drawn, the City shall file a request for dismissal with prejudice of the
entire Litigation and its cross-complaint.
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6. Upon receipt of the last payment from RSC in accordance with the terms of this
Agreement, the cancellation of the Contract shall be converted from a termination for
default to a mutually agreed separation of ways under the terms of this Agreement.
7. Excepting only the obligations of this Agreement, and as otherwise provided in
Paragraph 8, below, and in accordance with Paragraph 9, below, the Parties hereby
release each other and each of their officers, directors, shareholders, parent and other
affiliated companies, and employees, and their respective insurers and sureties, from
any and all known or unknown claims, demands, actions, liabilities, damages, and
causes of action,whatsoever, including costs and attorneys' fees, in regard to,or in any
way arising from or relating to the Project or the Litigation. The Parties understand
that, except as otherwise stated herein, this release extends to any and all known or
unknown claims, demands, actions, and causes of action of any kind and any nature,
whatsoever, contractual, tortious, or otherwise, in connection with, or in any way
arising from or relating to the Project and the Litigation, whether or not alleged in the
Litigation. Nothing in this paragraph or elsewhere in this Agreement shall constitute a
release by NASIS of any of its rights against RSC and its indemnitors under any
Indemnity Agreement entered into between those parties.
8. The release in paragraph 7 herein shall not apply to work performed or material
provided to the City of Ukiah Project No. PC 18406, though RSC, Garland, Hise and
NASIS shall have no liability for project No. PC 18406 except that Garland may be
liable in its capacity as material supplier for materials provided by Garland to the City
for Project No. PC 18406.
9. With the exception of the obligations of this Agreement and the reservation specifically
stated in Paragraph 8,above,the Parties waive their rights given by section 1542 of the
Civil Code of the State of California, which reads as follows:
A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist his or her favor at
the time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the debtor
or released party.
The Parties understand and acknowledge the significance and consequence of this
specific waiver of California Civil Code section 1542 and further represent,
acknowledge, and agree that their knowing and voluntary waiver of the provisions of
California Civil Code section 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.
10. This Agreement contains the entire agreement of the Parties and supersedes any prior
written or oral agreements between them concerning the subject matters contained
herein. No supplement, modifications, or amendment to this Agreement shall be
binding unless executed in writing by all of the Parties affected by and intended to be
bound by it.
11. If any litigation arises from or relates to this Agreement the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees in an amount to be
002033941 3 of 5
determined by the Court, as provided in California Civil Code section 1717. This
Agreement is specifically enforceable under the provisions of Code of Civil Procedure
section 664.6, and the Parties stipulate to Mendocino County Superior Court's
continuing jurisdiction to enforce the terms and conditions of this Agreement.
12.Each Party hereby warrants that, in executing this Agreement, it does so with full
knowledge of the rights and obligations that it may have and that it has received or been
given the opportunity to seek legal advice with respect to the matters contained in the
Agreement.Each signatory for each Party warrants that,in executing this Agreement,
they do so with the full authority to bind the Party to the terms of this Agreement.
13.This Agreement is the product of joint negotiations between the Parties and their
respective attorneys and shall not be construed against the Parties.
14.This Agreement may be executed in separate counterparts. Where convenient for the
undersigned to do so,the signed signature pages may be electronically transmitted.The
undersigned agree that their signatures on any electronic transmission thereof shall be
fully binding upon them in the same manner as if the undersigned had each signed the
same original Agreement.
15.If any provision of this Agreement is determined to be invalid or unenforceable, the
remainder shall be construed as valid and enforced so as to effectuate the intention of
the Parties at the time the settlement was entered into.
16.The Parties agree to prepare and deliver such further documents and instruments and
shall take such other actions as may be reasonably required or appropriate to evidence
or carry out the intent and purposes of this Agreement.
IN WITNESS WHEREOF,the undersigned have executed this Agreement as of the day,month
and year below written.
The City of Ukiah Hoofing S gnst c on, nc
By: B
(S lure) Signature)
Printed Name: �+ ��� Printed N e: Phyllis Wesson
Title: *v * 1ar.a��s Title: COO
Date.--/- f y—��� _ Date: 12/19/23
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North American Specialty Insurance Garland Company, Inc.
Services
By: By:
(Signature) (Signature)
Printed Name: Printed Name:
Title: Title:
Date: Date:
Thomas Hise, an Individual
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i hOM M H SC locc 21.2023 7 Y06 PST:
Date: 12/21/2023
00203304.1 5 of5
Date: Date:
North American Specialty Insurance Garland Company,Inc.
Services
By:By: (Signature)
(Signature)
Printed Name:
Printed Name: 1_
Title: e, ; T
Title: �T
Date:
Date:
Thomas Hise, an Individual
Date:
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EXHIBIT A
I ERIN K. MCDONOUGH, SBN 241664
erin@otmklaw.com
2 O'CONNOR THOMPSON MCDONOUGH KLOTSCHE LLP
2500 Venture Oaks Way, Suite 320
3 Sacramento, CA 95833
Telephone: 916-993-4540
4 Facsimile: 916-993-4541
5 Attorneys for Defendants
City of Ukiah
6
7 Steven B. Copeland, Esq. SBN 185258
sbca copelandlawpc.com
8 Copeland Law Firm, APC
19201 Sonoma Hwy., Suite 1061
9 Sonoma, CA 95476
Telephone: 424-234-9701
10
Attorneys for Plaintiff Roofing & Solar
11 Construction, Inc. and Cross-Defendant North
American Specialty Insurance Services
12
13
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF MENDOCINO
16
17 ROOFING & SOLAR CONSTRUCTION, INC., CASE NO. 22CV00048
an California corporation,
18 STIPULATION FOR ENTRY OF JUDGMENT
Plaintiff,
19
V.
20
CITY OF UKIAH, a body politic.; and DOES 1
21 through 50, inclusive,
22 Defendants.
23
AND RELATED CROSS-ACTIONS
24
25 IT IS HEREBY STIPULATED by and between plaintiff Roofing & Solar Construction, Inc.
26 ("RSC"), Cross-Defendant North American Specialty Insurance Services ("NASIS") and the City
27 of Ukiah (the "City") as follows:
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00208145.1
1 1. This stipulation is being entered into in connection with a Settlement Agreement
2 executed by the parties in connection with the above-entitled action.
3 2. Pursuant to Paragraph (3) of the Settlement Agreement, RSC/NASIS shall pay the
4 City the total sum of $180,000 in nine equal installment payments of $20,000. The first
5 installment payment shall be made no later than ten days after execution of the Settlement
6 Agreement. The following eight installment payments shall be received by the City no later than
7 the first of every month, beginning on January 1, 2024, and continuing through and including
8 August 1, 2024.
9 3. Pursuant to Paragraph 4 of the Settlement Agreement, if the City fails to receive a
10 payment from RSC/NASIS when due and in full, the City agrees to provide RSC and NASIS with
11 written notice of default. If RSC and NASIS fail to cure the default within ten (10) days of service
12 of the Notice of Default by electronic transmission to Steven B. Copeland as legal counsel for
13 RSC and NASIS, the City may move the Court ex parte to enter judgment in favor of the City and
14 against RSC and NASIS.
15 4. The amount of the judgment shall be the sum stated in a declaration by the City as
16 to the then outstanding balance, plus interest accrued and accruing at the rate of ten percent
17 (10%) per annum on any unpaid balance from the date of the Settlement Agreement, and all
18 reasonable attorneys' fees incurred by the City in enforcing this Stipulation and a judgment
19 entered pursuant thereto.
20 SO STIPULATED
21 ROOFING & SOLAR CONSTRUCTION, NORTH AMERICAN SPECIALTY
INC. INSURANCE SERVICES
22
By: By:
23 (Signature) (Signature)
24 Printed Name: Printed Name:
25 Title: Title:
26 Date: Date:
27
28
00208145.1 _2_
STIPULATION FOR ENTRY OF JUDGMENT
1 1, This stipulation is being encored Into In conntIclaon with,a Sotllemert Agreemen,
4 executed by the Puatios In connection will,the above entitled action
3 2• Pursuant to Paragraph(3)of the Selllemaril Agreement,RSCINASIS sha"pay the
4 City the total sum of S1R0,000 in nine equal installment payments of $20.000. The first
5 installmenl payment shalt bo made no laior than ten days after execution of the SoMemont
6 A1lreenaent. The following oighl installment payments shall be received by the City no later than
7 the first of every month, beginning on January 1, 2024, and continuing through and inchidmg
Y
8 August 1,2024.
9 3. Pursuant to Paragraph 4 of the Settlement Agreement,if the City faits to receive a
10 payment from RSCINAStS when due and in full,the City agrees to provide RSC and NASIS with
11 wrilten notice of default,It RSC and NASIS fail to cure the default within ten(10)days of service
12 of the Notice of Default by oloctronic transmission 10 Steven B.Copeland as legal counsel for
13 RSC and NASIS,the City may move the Court ex parte to enter judgment in favor of the City and
i4 against RSC and NASIS,
15 4, The amount of the judgment shall be the sum stated in a declaration by the City as
16 to the then outstanding balance, plus interest accrued and accruing at the rate of ten percent
17 (10%)per annum on any unpaid balance from the date of the Settlement Agreement,and all
18 reasonable attomeys' fees incurred by the City in enforcing this Stipulation and a judgment
19 entered pursuant thereto. 51/� 55(Z G�R S L L V T+ y�
20 SO STIPULATED
21 ROOFIN SO CO STRUCTION, NORTH AMERICAN SPECIALTY
INC. INSURANCEfSER 1
22 ffjj��`
By'. By: 1 WY-( i
23 gn fur ] (Signature) r. '
24 Printed )Printed Name: �r r 1\i 1 1� 10AJ r
25 Title: Title: V [ u 4u } 'r.` y-
26 Date I� �Qr Date:
27
28 i
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STIPULATION FOR ENTRY OF JUDGMENT
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1 THE CITY OF UKIAH
2 By:
(Signature)
3
Printed Name: S1.1 TArt titirtic�r'ti�(j
4
Title: C:-t
5
Dater y a
6
7
8
9
10
11 APPROVED AS TO FORM
12 DATED: January 17, 2024 O'CONNOR THOMPSON MCDONOUGH
13 KLOTSCHE LLP
14 %• ��
15 By:
ERIN K. MCDONOUGH
16 Attorneys for The City of Ukiah
17 DATED: January , 2024 COPELAND LAW FIRM, APC
18
19
By:
20 STEVEN B, COPELAND
Attorneys for Roofing & Solar
21 Constrdction, Inc. and North American
22 Specialty Insurances Services
23
24
25
26
27
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00208145.1
-3-
STIPULATION FOR ENTRY OF JUDGMENT
1 THE CITY OF UKIAH
2 By* ._ -- —
(Signature)
3
Printed Name:
4
Title:
5
Date:
6
k
7
8
9
10
11 APPROVED AS TO FORM
12 DATED: November ,, 2023 O'CONNOR THOMPSON MCDONOUGH
13 KLOTSCHE LLP
14
15 By:
ERIN K. MCDONOUGH
16 Attor eys for The City of Ukiah
17 DATED: COPELAND LAW FIRM, APC
18
19
By:
20 STEVEN B. COPti>ND
21 Attorneys for Roofing & Solar
Construction, Inc. and North American
22 Specialty Insurances Services
23
24
25
26
27
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00208145.1 _
AMENDED PROOF OF SERVICE