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HomeMy WebLinkAboutContracts & Agreements_185-2016 SETTLEMENT AGREEMENT RELEASE AND ASSIGNMENT This Settlement Agreement, Release and Assignment ("Agreement") is entered into by and between U.S. Specialty Insurance Company, a Texas corporation ("USSIC") on one hand, and the City of Redlands ("City") on the other (sometimes collectively referred to as "Parties"), with reference to the following recitals: RECITALS a. The City is the owner of a certain work of improvement commonly known as Orange Blossom Trail, Phase 1, Project No. 47015 ("Project"). b. KAD Paving Company ("KAD") is a contractor on the Project. C. USSIC issued Performance Bond No. 1001000122 (the "Bond") naming KAD as the principal and the City as obligee. d. By letter dated March 29, 2016 the City notified KAD that it was in default on the Project. C. By letter dated May 4, 2016 the City formally terminated KAD from the Project and provided USSIC a copy of the Notice of Termination letter. f. KAD, pursuant to the terms of a written General Indemnity Agreement dated August 15, 2011, assigned all of KAD's right, title and interest in any and all sums due or to become due on the Project to USSIC. g. The City has subsequently made demand on USSIC pursuant to the terms of the performance bond. h. The City would like to use the remaining Project funds, which USSIC has an assignment right in, to complete the Project. NOW, THEREFORE, in consideration of the foregoing recitals, promises, covenants and warranties set forth herein, and for other good and valuable consideration, the Parties agree as follows: 1. Assignment and Release: The City hereby withdraws its claim against the Bond and forever releases and discharges USSIC from any and all liability, claim and demand under the Bond, wherein the City is the named obligee. USSIC hereby assigns, transfers and conveys all right,title and interest it has to the remaining funds on the Project to the City to be used by the City to complete the Project. In no way shall this assignment effect USSIC's right to indemnity by KAD or any individual indemnitors for (1413 22702) any losses, liabilities, expenses, attorneys fees, costs, or damages incurred by USSIC on this Proj ect. 2. Release. In consideration of the promises and obligations set forth above, USSIC and City hereby forever release, acquit and discharge each other and their respective partners, directors, officers, employees, shareholders, agents, representatives, affiliates, heirs, personal representatives, successors, attorneys and assigns from any and all rights, claims, warranties causes of action, suits and liabilities of every kind or nature whatsoever, whether known or unknown, suspected or unsuspected, that they may have against each other which in any manner arise out of, relate to or are connected with the Bond (collectively "Released Claims"). 2.1. The parties hereto intend that this Agreement shall be a frill and final settlement of and bar to any and all claims and/or causes of action arising between and/or among them related to the Bond. In connection therewith, all parties acknowledge that they may hereafter discover facts different ftom or in addition to the facts which they may know or believe to be true with respect to the Released Claims, but that they intend to hereby fully and forever settle all disputes between and/or among them. In furtherance of such intention, the Release given herein shall be and remain in effect as a full and complete mutual release, notwithstanding discovery of any such different or additional facts. Therefore, the parties acknowledge that they have been informed of and are familiar with the provisions of Civil Code section 1542, 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 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. The parties hereby waive and relinquish all rights and benefits they have under Civil Code section 1542 to the full extent that they may lawfully waive all such rights and benefits pertaining to the Released Claims. 3. Representations And Warranties. Each party hereto represents and warrants to every other party: 3.1 That as of the date of their execution of this Agreement, they are unaware of any facts, conditions or matters relating to, arising out of or connected with the events and/or transactions which would give rise to any claims for damages or equitable relief not being released by each party pursuant to the terms of this Agreement. 3.2 That every party has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement and all other agreements and instruments to be executed by any corporate or partnership entity in connection with this Agreement have been (or upon execution will have {1413 22702} been) duly executed and delivered by such corporate or partnership entity, have been effectively authorized by all necessary action, corporate or otherwise, and constitute (or upon execution will constitute) legal, valid and binding obligations of the respective parties hereto. 3.3 That no portion of any claim, demand, cause of action that they may have or might have, which are being released herein, have been assigned or transferred to any other person, firm or corporation, including, without limitation, any parent, subsidiary or affiliate of any party, in any manner, including by way of subrogation or operation of law or otherwise. In the event any third party makes a claim against a party to this Agreement based upon such an alleged transfer or assignment, the party to this Agreement who is the alleged transferor or assignor will indemnify and hold harmless the party to this Agreement against whom the claim is asserted. 3.4 That in executing this Agreement, the parties have relied solely upon their own judgment, belief and knowledge and on the advice and recommendations of their own independently selected counsel concerning the nature, extent and duration of their rights. Further, that they have not been influenced by any representations or statements concerning any matters made by any other parties or by any person or attorney representing any other parties in connection with the negotiation and/or entering into of this Agreement. 3.5 This Agreement has been carefully read by each party, and the contents hereof are known and understood and freely executed by all parties. 3.6 All Parties covenant and agree not to bring any action, claim, suit or proceeding against any other party hereto, directly or indirectly, regarding or relating in any manner to the matters released hereby, and each further covenants and agrees that this Agreement is a bar to any such claim, action, suit or proceeding. 4. Attorneys' Fees. If legal proceedings are commenced by any party hereto to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover all of such parties' attorneys' fees and costs and expenses of litigation including any and all appeals or petitions therefrom as well as fees and costs incurred in enforcing any resulting judgment or award. Except as otherwise provided herein, the parties waive and release each other from any claims for attorneys' fees and costs against the other arising out of or in connection with the Action. 5. Entire AlZreement. All agreements, covenants, representations and warranties, expressed and implied, oral and written, by each party to this Agreement concerning its subject matter are contained herein. No other agreements, covenants, representations or warranties, expressed or implied, oral or written, have been made by any party to any other party concerning the subject matter of this Agreement. All prior and contemporaneous conversations, covenants and warranties concerning the subject matter of this Agreement are merged herein. This is a frilly integrated Agreement. 6. No Construction Against Drafter. All parties agree that each has participated in arriving at the final language of this Agreement and, therefore, this Agreement shall not be construed against any party as the drafter. {1413 22702) 7. Counterparts. This Agreement may be executed in counterparts, and/or by facsimile, and when all parties have signed and delivered at least one such counterpart to the other parties, each counterpart shall be deemed an original, and when taken together with other signed counterparts, shall constitute one agreement, which shall be binding upon and effective as to all parties. No original signatures shall be required to establish the validity or authenticity of this Agreement. 8. Successors. This Agreement shall be binding on and shall inure to the benefit of the heirs, representatives, administrators, executors, successors and assigns, beneficiaries and attorneys of all parties. This Agreement is intended to and does release and inure to the benefit of each party and each party's affiliates, corporations, divisions, officers, directors, partners, agents, employees, representatives, shareholders, accountants and attorneys. 9. Governing Law. This Agreement shall be construed in accordance with, and shall be governed by, the laws of the State of California. 10. Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such a portion shall be deemed severed from this Agreement, and the remaining portions shall remain in full force as though such invalid or unenforceable provisions or portions had not been a part of this Agreement. 11. Survival. The warranties and representations of this Agreement are deemed to and do survive the closing hereof 12. Effect of Headings. Captions of the sections of this Agreement are for convenience and reference only, and the words contained in the captions shall in no way be employed to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. 13. Disclaimer of Third Party_Beneficial Contract. By execution hereof, the Parties specifically disavow any desire or intention to create a "third party" beneficiary contract, and specifically declare that no person or entity, save and except for the parties hereto stated and referenced, their heirs and successors, and their voluntary assigns, shall have any rights hereunder nor any right of enforcement hereof. 14. Time is of the Essence. Time is of the essence in the performance of each and every obligation to be performed by the Parties as set forth in this Agreement. 15. Reservation of Rights. USSIC expressly reserves all rights it has against KAD, Donald Jay Wheeler and Jessica Nicole Wheeler under the written General Indemnity Agreement dated August 15, 2011. 16. Effective Date. This Agreement shall be effective as of the date of its complete execution by the last signing party or attorney for party. 11413 227021 EACH OF THE UNDERSIGNED HEREBY DECLARE THATTHE TERMS OF THIS SETTLEMENT AGREEMENTAND RELEASE HAVE BEEN COMPLETELY READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF VOLUNTARILY ACCEPT THE TERMS WITFITHE INTENT TO BE LECITALLY BOUND THERI"'BY. U.S. SPECIALTY INSURANCE COMPANY DATED: 20 16 By: .... Name: Title: CITYOF REDLANDS DATED: 2016 B Name.Paul Wti Foster Title: mayor ATTEST: Sam Irwin, City Cierk-'-�- ,/ 11413) 227021