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HomeMy WebLinkAboutA58-03 Wiltel Communications - Agreement for Settlement of Lawsuits1 AGREEMENT FOR SETTLEMTNT OF LAWSUITS 2 3 I. 4 PARTIES 5 1. This Agreement is entered into by and between the CITY OF SAN LUIS OBISPO, 6 (CITY), and WILTEL COMMUNICATIONS, LLC (WILTEL). 7 Il. 8 RECITALS 9 2. The CITY maintains streets, including but not limited to Monterey Street. 10 3. On or about June 4, 1999, Pacific Bell applied for CITY permission to run 11 communication lines beneath the surface of Monterey Street. The CITY issued encroachment. permit 12 number 03305, a copy of which is attached as Exhibit A, and incorporated by reference herein. 13 4. It is pursuant to this encroachment permit that WILTEL currently maintains 14 communication lines beneath the surface of Monterey Street. The encroachment permit requires 15 WILTEL to maintain at least a five foot horizontal separation from CITY mains including sewer, 16 water, and storm drains. 17 5. During the year 2001, the CITY contracted with Granite Construction Company to 18 construct the Monterey Street Sewer Project, City Specification 90151. 19 6. On June 4, 2001, while excavating at the intersection of Monterey Street and California 20 Ave. , Granite Construction encountered communication lines installed, owned, and maintained by 21 WILTEL. 22 7. It is the position of the CITY that the communication lines maintained below the 23 surface at the intersection of Monterey Street and California Ave. by WILTEL did not, in fact, 24 maintain the minimum five foot horizontal separation from CITY mains, and in fact, obstructed the 25 Monterey Sewer Project, City_Spe�cjtian MIJa 26 8. As a result, the CITY contends that it was required to issue changeorders to the 27 contractor, Granite Construction, in the sum of $79,569.25. 28 AGREEMENT FOR SETTLEMENT OF LAWSUITS 1 o46—F- 03 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. The CITY has brought suit in San Luis Obispo Superior Court (Case Number CV 030056) seeking damages and injunctive relief, which if granted, would require WILTEL to relocate communication lines that it currently maintains beneath the surface of Monterey Street. 10. The CITY and WILTEL wish to settle and resolve their differences now, thus avoiding the hazards, expenses, and risks of further litigation. AGREEMENT 11. It is agreed that: (1) WILTEL will pay to the CITY the sum of $65,000.00 within thirty days of execution of this Agreement, and; (2) WILTEL will apply for and City will grant a new encroachment permit to WILTEL within 60 days after application which should include accurate as - built drawings correctly depicting the location of WILTEL's communication lines that lie beneath the surface of Monterey Street between Pepper Street and Grand Avenue, and; (3) the CITY will waive its minimum requirement of five foot horizontal separation from CITY mains insofar as this encroachment permit, only, is concerned and shall not require the relocation of the existing I communication lines which lie beneath the surface of Monterey Street between Pepper Street and I Grand Avenue. 12. If, in the future, CITY construction, reconstruction, or maintenance work in the public right-of-way requires the WILTEL installation to be moved, adjusted, or relocated, then WILTEL, at its sole expense, upon request of the CITY and not less than 120 days written notice except in the eve of an emergency, shall comply with said request. 13. WILTEL, for itself, its permitees, licensees, successors, agents, or assigns, agrees to indemnify, defend, and hold harmless the CITY to the fullest extent permitted by California law from any claims for loss or damages asserted by either the CITY, working in or around the CITY main, or third persons, firms, public utilities, or entities, that reasonably arise out of, are connected with, or are the result of WILTEL's communication lines at the intersection of Monterey St. and California Ave. I being located within 5 horizontal feet of the City mains. AGREEMENT FOR SETTLEMENT OF LAWSUITS 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Upon execution of this Agreement and payment of the settlement amount, the CITY will dismiss with prejudice San Luis Obispo Superior Court Case Number CV 030056, and, by these presents, does waive and release WILTEL from any claims for additional compensation and/or claims for relocation of WILTEL facilities that the CITY may have arising out of the matters as alleged in said lawsuit, and/or expenses incurred by the CITY in connection with the construction of the Monterey Sewer Project, City Specification 90151. 15. This Agreement shall be specifically enforceable by petition filed pursuant to Code of Civil Procedure §664.6. In the event that enforcement proceedings are brought, the prevailing party shall be entitled to reasonable attorney's fees and costs of suit. Except as expressly provided herein, however, all parties are responsible for their own attorney's fees and costs to date. 16. This Agreement is, and is intended to be a full and complete release of all claims of nature and kind whatsoever, known or unknown, suspected or unsuspected, which the parties may have might have against each other up to and including the date hereof. 17. It is expressly understood that this Agreement is in full accord and satisfaction of disputed claims, and this Agreement will not be deemed an admission of liability or responsibility of any party hereto for any purpose, but rather a compromise to avoid the cost and expense of litigation. 18. Each party hereto represents that such party: (i) has read this Agreement; (ii) has had d provisions, and consequences thereof, fully explained by such party's legal counsel; and, (iii) is freely voluntarily signing this Agreement upon advice furnished by such party's legal counsel. 19. The parties are entering into this Agreement based solely upon their own knowledge investigation of the facts and advice of counsel. Except as to the recitals, representations, and contained herein, the parties have not relied upon any representations or statements of fact, law, or opini by any adverse party or attorney in entering into this Agreement. 20. This Agreement contains the entire agreement between the parties relating to settlement and transactions contemplated hereby, and all prior or contemporaneous I understandings, representations, and statements, whether oral or written, and whether by a party or party's legal counsel, are merged herein. No modification, waiver, amendment, discharge, or change AGREEMENT FOR SETTLEMENT OF LAWSUITS 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Agreement shall be valid unless the same is in writing and signed by the party against which enforcement of such modification, waiver, amendment, discharge, or change is or may be sought. 21. In the event that any action or proceeding is maintained to enforce the terms of agreement, then the prevailing party shall be entitled to reasonable attorney's fees together with ci of suit. 22. This Agreement may be signed in counterparts: Dated: WILTEL COMMUNICATIONS, LLCAV FOS' a Q� T Dated: Approved as to form and content: Dated: �'�� i FITZPATRICK & BARBIERI EVANS J. BAkBIERI, Attorney for Plaintiff, CITY OF SAN LUIS OBISPO CITY OF SAN LUIS OBISPO AGREEMENT FOR SETTLEMENT OF LAWSUITS El MEMORANDUM From the Office of the CiLy Attorne June 20, 2003 To: Lee Price, City Clerk From: Jonathan Lowell, City Attorney Subject: City v. Williams Attached is the original Agreement for Settlement of Lawsuits, executed by the City and Wiltel Communications. Please place this agreement in the City's official files. If you have any questions, please feel free to call me. JL/sw attach.