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Clean Cut Landscape, Inc.-2019-18 t i 2019-18 SETTLEMENT AGREEMENT & GENERAL RELEASE OF ALL CLAIMS This Settlement Agreement and General Release of All Claims (the "Agreement") is entered into by and between CLEAN CUT LANDSCAPE, INC., a California corporation (the "Contractor" or "Clean Cut"), and the CITY OF GRAND TERRACE a municipal corporation (the "City"), (collectively, the "Parties", and individually, "Party") with reference to the following recitals: RECITALS WHEREAS, on or about June 13, 2017, the City and Contractor entered into a "Contractors Agreement" in which Contractor agreed to construct certain improvements at the City's Dog Park located at 22720 Vista Grande Way, Grand Terrace, CA 92313 (the"Dog Park") and to provide certain landscape and irrigation maintenance at the Dog Park with a total contract sum of$373,525.15 (the"Original Agreement"). WHEREAS, on or about November 19, 2018, City and Contractor executed Change Order No. 1 to the Original Agreement, which required the Contractor to install an additional two benches in the Dog Park and required City to compensate Contractor for such services and which accordingly increased the total contract sum of the Original Agreement by $6,109.68 (the "Change Order No. I"). WHEREAS, the Contractor carried out certain work in addition to the work contemplated by the Original Agreement and Change Order No. 1; the additional work, which includes the installation of extra curb heights, and the quantity adjustments for work done under the Original Agreement, Change Order No. 1 and the aforementioned additional work (the "Additional Work"). The Parties mutually agree that the cost of the Additional Work is $66,492.99. WHEREAS, therefore, the total not exceed contract sum of the Original Agreement, Change Order No. 1, and the Additional Work is $446,127.82 (the"Total Cost"). WHEREAS, a dispute between the Parties arose when, after the Additional Work was completed, Contractor alleges that (1) there have been numerous delays in the completion of the improvements contemplated by the Original Agreement, Change Order No. 1, and the Additional Work, which have also resulted in Contractor in not being paid in a timely manner; (2) Contractor carried out the Additional Work prior to the City Council approving an additional change order for the Additional Work in good faith reliance upon the City's representations that Contractor will be compensated; and (3) Contractor has suffered injuries due to alleged delays by the City(the "Dispute"). WHEREAS, the work set forth in the Original Agreement, Change Order No. 1, and the Additional Work has been completed by Contractor to the satisfaction of the City. 01247.0006/537848.7 -1- WHEREAS, the City has paid $343,482.15 of the Total Cost to Contractor prior to the Effective Date of this Agreement. WHEREAS, the City has not paid the final payment amount of$102,645.67 (the "Final Payment"), which includes the remaining unpaid portion of the Additional Work ($66,492.99), the remaining unpaid portion of Change Order No. 1 ($6,109.68), the remaining unpaid portion of the Original Agreement ($11,964.99), and the retention amounts for all payments made by the City to Contractor prior to the Effective Date of this Agreement($18,078.01). WHEREAS, the City intends to approve and file a Notice of Completion for all work completed by the Contractor pursuant to the Original Agreement, Change Order No. 1, and the Additional Work with the County of San Bernardino Assessor-Recorder-County Clerk's Office. WHEREAS, to resolve the Dispute, City agrees to pay Contractor the Final Payment and Contractor agrees to release the City from all liability relating the Original Agreement, Change Order No. 1, the Additional Work, and all other work performed by Contractor in relation to the Dog Park, as set forth in this Agreement. AGREEMENT NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, all Parties hereto agree as follows: 1. Recitals. All of the foregoing Recitals above are to be deemed true and material statements upon which this Agreement is based and the terms therein are deemed agreed upon by all Parties. 2. Effective Date. This Agreement shall become effective as of the date all Parties have signed the Agreement(the "Effective Date"). 3. Settlement. As provided for by this Agreement, the Parties desire to fully settle all outstanding claims, burdens, obligations, liabilities, costs and expenses associated with the Dispute. Following the mutual execution and delivery of this Agreement, the Parties agree to do the following: 3.1 City shall pay the Final Payment to Contractor within thirty (35) days of filing of a Notice of Completion with the County of San Bernardino Assessor-Recorder-County Clerk's Office by the City for work completed under the Original Agreement, Change Order No. 1, and the Additional Work. Thereafter, Contractor shall not be entitled to any additional money or compensation, including interest, other than the Final Payment for any matter relating to the 01247.0006/537848.7 -2- Dispute, including to the Original Agreement, Change Order No. 1, the Additional Work, and any other work Contractor may have performed in relation to the Dog Park; 3.2 Contractor agrees that all terms and conditions in the Original Agreement, including any amendments and/or change orders as may be applicable, shall apply to the Additional Work and any other work performed by Contractor in relation to the Dog Park. 4. Mutual Release. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Contractor do hereby each mutually release and discharge the "Releasees" hereunder, consisting of City and Contractor (including, without limitation, any Parties' elected and/or appointed public officials, officers, employees, and agents, including, each and all of them and (as the case may be) each of the Parties' respective associates, predecessors, successors, heirs, assignees, agents, directors, officers, employees, representatives, lawyers, and all persons acting by, through, under or in concert with them, or any of them) of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, loss, cost or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), which the Parties now have or may hereafter have against the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof for any and all Claims constituting, arising out of, or based upon the Dispute, including the Original Agreement, Change Order No. 1, Additional Work, and any other work completed by Contractor in relation to the Dog Park. This Mutual Release shall not apply to (a) any and all warranties, whether express or implied, provided for by the Original Agreement, Change Order No. 1, and Paragraph 3.2 of this Agreement; and (b) any matter related to the provisions of the Original Agreement, Change Order No. 1, and Paragraph 3.2 of this Agreement relating to insurance, indemnification, and bonds, which shall remain in full force and effect. 5. Indemnity. In addition to any other obligation to indemnify, defend, and hold harmless the City, Contractor agrees to indemnify and defend City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, liens, damages to persons or property, losses, costs, penalties, obligations, or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with this Agreement and Contractor's work under the Original Agreement, Change Order No. 1, the Additional Work, or any other work by Contractor in relation to the Dog Park, including, but not limited to, Claims and Liabilities by any insurance and/or bonding companies. Contractor shall defend any action or actions filed in connection with any of said Claims or Liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith, and any judgment resulting therefrom. 6. Discovery of Different or Additional Facts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe 01247.0006/537848.7 -3- to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Release set forth in Paragraph 4 of this Agreement, and expressly agree to assume the risk of the possible discovery of additional or different facts, and the Parties agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts. 7. Release of Unknown Claims. Except as expressly provided herein this Agreement, the Release set forth above in Paragraph 4 of this Agreement is a release of ALL claims, demands, causes of action, obligations, damages,and liabilities of any nature whatsoever that are described in the Release and is intended to encompass all known and unknown, foreseen and unforeseen claims which the Parties may have arising out of the Dispute (including those relating to the Original Agreement, Change Order No. 1, the Additional Work, and any other work'completed by Contractor in relation to the Dog Park), except for any claims which may arise from the terms of this Agreement. 8. Waiver of.Civil Code Section 1542. Except as provided herein this Agreement, the Parties expressly agree to waive and relinquish all rights and benefits they may have against the each other under Paragraph 4 of this Agreement based on Section 1542 of the Civil Code of the State of California. The Parties understand and acknowledge that Section 1542 reads as follows: " §1542. [General release; extent] A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in 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." Co ctor's Initials City's Initials After reading and understanding Civil Code section 1542, the City and Contractor voluntarily waive the application of Section 1542 to this Agreement, except as expressly provided herein this Agreement. The City and Contractor understand and acknowledge that the significance and consequence of this waiver is that even if the City or Contractor should eventually suffer additional damages arising out of the Dispute, including the Original Agreement, Change Order No. 1, Additional Work, and any other work completed by Contractor 01247.0006/537948.7 -4- in relation to the Dog Park, the City and Contractor will not be permitted to make any claim against the other party for those damages. Furthermore,the City and Contractor acknowledge that the City and Contractor intend these consequences even as to claims for damages that may exist, and which, if known, would materially affect the City or Contractor's decision to execute this Agreement, regardless of whether the City or Contractor's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 9. No Other Pending Actions. The Parties represent that they have not filed any complaints, claims, or charges against each other with any local, state or federal agency or court; and that if any such agency or court assumes jurisdiction of any complaint or charge against either of the Parties, or its respective predecessors, successors, heirs, assigns, employees, shareholders, officers, directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations, whether previously or hereafter affiliated in any manner, on behalf of such Party, whenever filed, the other Party will request such agency or court to withdraw and dismiss the matter forthwith. 10. No Admission of Liability. The Parties acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by any Party hereto, or any of its employees, or an affiliated person(s) or entity/ies. 11. No Assignment of Claims. The Parties each warrant that they have made no assignment, and will make no assignment, of any claim, cause of action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses or claims referred to herein. 12. Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns. 13. Knowing and Voluntary. This Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically represent that prior to signing this Agreement they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The Parties further represent that they have each carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own judgment. The Parties further specifically represent that prior to signing this Agreement they have conferred with their counsel to the extent desired concerning the legal effect of this Agreement. 01247.0006/537848.7 -5- 14. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 15. Attorneys' Fees and Costs. Each Party shall bear its own attorneys' fees and costs in all respects and as to all matters relating to this Agreement and the Dispute. 16. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement. 17. Singular and Plural. Whenever required by the context, as used in this Agreement the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and the feminine gender shall include the masculine and the neuter. 18. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that Party may be entitled. 19. Injunctive Relief for Breach. The Parties acknowledge and agree that any material violation of this Agreement is likely to result in immediate and irreparable harm for which monetary damages are likely to be inadequate. Accordingly, the Parties consent to injunctive and other appropriate equitable relief upon the institution of proceedings therefor by any other Party in order to protect the rights of the Parties under this Agreement. Such relief shall be in addition to any other relief to which the Parties may be entitled at law or in equity. 20. No Third Party Beneficiaries. No person or entity shall be deemed to be a third Party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the Parties hereto, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as set forth in Paragraph 12, above. 21. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. 22. Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the Parties and are not a substantive part of this Agreement. 23. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. 01247.0006/537848.7 -6- 24. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times. 25. Governing Law and Jurisdiction. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. If any Party to this Agreement brings a lawsuit to enforce or interpret this Agreement, the lawsuit shall be filed in the Superior Court for the County of San Bernardino, California. 26. Entire Agreement. This Agreement constitutes the entire agreement between the Parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement. The Parties to this Agreement each acknowledge that no representations, inducements,promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement. 27. Modifications. Any alteration, change, or modification of or to this Agreement shall be made by written instrument executed by each Party hereto in order to become effective. 28. Authority to Bind. Each of the Parties represents, warrants and agrees that any person executing this Agreement on its behalf has the full right and authority to enter this Agreement on behalf of that Party and has the full right and authority to execute this Agreement and to fully bind that Party to the terms and obligations of this Agreement and that the execution and consummation of this Agreement will not result in any breach of, contravene any provision of, violate or constitute a default under any article of incorporation, charter, bylaw, mortgage, indenture, contract, agreement, instrument, judgment, statute, rule, or regulation to which that Party is subject, and there is no claim or assertion or potential claim or assertion to the contrary. Each of the persons signing this Agreement on behalf of one or more of the Parties hereto makes the same warranties reference above. [SIGNATURE PAGE FOLLOWS] 01247.0006/537848.7 -7- r IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and Release of All Claims, consisting of a total of 8 pages, and agree to all of the above terms and conditions, on the dates set forth below. CITY: CITY OF GRAND TERRACE, a municipal corporation y McNa , Mayor ATTEST: De bra Thomas, City Clerk APPROVED AS TO FORM: ALESHIRE &WYNDER, LLP d,tl(— xf"�- z< R. Guerra, City Attorney CONTRACTOR: CLEAN CUT LANDSCAPE, INC., a California corporation By: Name: wiWael Title: Pr-A--zd-^t. Address: $yab q/L� r n .•G` APPROVED AS TO ORM: Contracto s Legal Counsel 01247.0006/537848.7 3 -8- ACKNOWLEDGMENT 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 California County of FRESNO On APRIL 18, 2019 before me, MAI LEE YANG, NOTARY PUBLIC (insert name and title of the officer) personally appeared KARRY WENDEL who proved to me on the basis of satisfactory evidence to be the personA whose name(s) is/aF9 subscribed to the within instrument and acknowledged to me that he/ehefteyexecuted the same in hisAierA*eir authorized capacity0es), and that by his/ eit:signatureA on the instrument the person'}, or the entity upon behalf of which the person(4 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. MAI LEE VANG WITNESS my hand and official seal. g COMM. #2182659 Notary Public•California Fresno County - My Comm.Expires Feb..0 2021 Signature V (Seal) ACKNOWLEDGMENT 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 California County of 5.4A) !,t)6 ) On a2- 9bI before me, .-rA(6A4,¢5 i¢ X07AZY Ag6"'::n (insert name and tie of the officer) personally appeared �,QC' who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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. DEBRA L.THOMAS WITNESS my hand and official seal. commission#2130209 z:''� Notary Public-California Zz San Bernardino County 4 Comm.Expires Nov 10,2019 Signature (Seal)