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HomeMy WebLinkAboutContracts & Agreements_18-2000_CCv0001.pdf SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release ("Release") is entered into on this 1st day of February,2000, by and between the C.N.B. Excavating, Inc, ("C.N.B."), on the one hand, and the City of Redlands ("Redlands"), on the other. RECITALS A. In or about January 1997, Redlands solicited bids for a public works project to be known as the"2100 Zone Transmission and Distribution Pipeline Project," project number 1-9376 (the"Project"). In or about March 1997, C.N.B. submitted the lowest responsible bid for the Project. On or about, April 1, 1997, Redlands and C.N.B. entered into a contract by which C.N.B. was to construct the Project on behalf of Redlands for amount of$800,000 (the "Agreement"). B. C.N.B. commenced work on the Project on or about May 19, 1997, During the course of construction and subsequent thereto, various disputes arose between C.N.B. and Redlands involving various issues related to the Project. These included, but were not limited to, issues related to the importation of sand for use on the Project, the use of a compaction technique known as"jetting" and the entitlement of C.N.B. to extra compensation or addtional time to construct the Project(collectively, the"Disputes"). During the course of construction of the Project, C.N.B. submitted forty-one (41) "Daily Extra Work Orders" to Redlands requesting additional time or compensation for its work on the Project (the "DEWO's"). R,vL1 T 1 HBG\54 5105 C. On January 2'), 1998 and April 20, 1998, C.N.B. submitted written administrative claims to Redlands asserting that it was entitled to additional compensation or damages from Redlands as a result of various events that took place during the construction of the Project and C.N.B.'s performance pursuant to the Agreement (the "Claims"). On July 27, 1998, C.N.B. commenced that certain legal action in the San Bernardino Superior Court, case number SCV 49915, entitled C.N-B. Excavating, Inc. v. City of Redlands, in which it asserted various causes of action and requested damages from Redlands based on allegations related to the Project (the "Litigation"). D. On or about August 11, 1999, Redlands and C.N.B. entered into an agreement by which the Litigation was submitted to binding arbitration before Judge Sumner of JAMSiEndispute (the"Arbitration"), That arbitration was commenced on December 14, 1999, and concluded on December 17, 1999, prior to the arbitrator rendering a decision_ D. Redlands and C.N.B. (collectively, the "Parties") now desire to resolve and settle all claims, counter-claims and disputes arising from or involving the Project, the Agreement, the Disputes, the DEWO's, the Claims, the Litigation and the Arbitration. E. This Agreement is a compromise of the claims and liabilities asserted by the Parties and shall not be treated as an admission of liability by any party. -2- kV7,1 7 54 5105 AGREEMENT I The Parties acknowledge that the Recitals are true and correct and incorporate by reference those Recitals into this Release. 1 On or before February 1, 2000, Redlands shall pay C.N.B. the sum of One Hundred Seventy Five Thousand Dollars ($175,000.00). Payment shall be made by way of check made payable to "C.N.B. Excavating, Inc." and payment shall be deemed to have occurred upon receipt of Redlands' check by counsel for C.N.B.. 3. To the extent the Litigation has not previously been dismissed by the San Bernardino Superior Court, C.N.B. shall dismiss the Litigation with prejudice upon receipt of the payment identified in paragraph 2 above, 4. The Parties shall each be responsible for their respective attorney's fees and costs incurred in any matter related to the Project, the Agreement, the Disputes, the DEWO's, the Claims, the Litigation and/or the Arbitration. 5, C.N.B. hereby agrees that the release of claims and liabilities set forth in this Release shall not apply to any warranties, express or implied, provided Redlands by C.N.B. for any construction work performed by C.N.B,, or any subcontractor of C-NB., on the Project or pursuant to the Agreement. All such warranties shall be governed by their own terms and conditions and will remain in full force and effect to the extent such terms and conditions allow. -3- 6. Except as provided in paragraph 5 above, Redlands on behalf of itself and its city council members, agents, attorneys, officers, employees, representatives, assigns and successors- in-interest hereby releases and forever discharges C.N.B. and its agents, attorneys, directors, officers, employees, representatives, assigns and successors-in-interest from any and all claims, causes of action, actions, damages,,losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorney's fees, of every kind and character, known or unknown, existing or contingent, latent or patent, regarding any matter arising from or related to the Project, the Agreement, the Disputes, the DEWO's, the Claims, the Litigation and/or the Arbitration. 7, C.N.B. on behalf of itself and its agents, attorneys, directors, officers, employees, representatives, assigns and successors-in-interest hereby releases and forever discharges Redlands and its city council members, agents, attorneys, officers, employees, representatives, assigns and successors-in-interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorney's fees, of every kind and character, known or unknown, existing or contingent, latent or patent, regarding any matter arising from or related to the Project, the Agreement, the Disputes, the DENNTO's, the Claims, the Litigation and/or the Arbitration. 8. Except as provided in paragraph 5 above, the Parties hereby acknowledge and expressly waive the provisions of California Civil Code section 1542 which states: -4- A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the fame of executing the release,which if'known by him must have materially affected his settlement with the debtor. 9. The Parties represent and warrant;that they have had the opportunity to seek and receive the advice of their attorneys with respect to the advisability of making the release provided for herein, and the meaning of California Civil Cade section 1542. 10 Each of the Parties is aware that it may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of each of the Parties, kept as set forth in paragraph 5 above, to fully, finally and forever settle and release all such matters, and all claims related to those natters. 11 The Pasties hereby acknowledge that the rights and obligations hereby released have not been previously assigned by there to any third party. 12. The Parties represent and warrant that they fully understand each of the terms of this Release and their consequences and that they have sought the advice of counsel prier to executing this Release. z3= tsar' _5- --._ ,.mvF�.,N,�4, .,�a„,, .,�. ��:���„�„�rw�-,..�:Nor,.:,:<:r�✓,ar.,�..�rc;,�ira,e�r,:✓ iir:.�.. :��”S��.�c�`�,":u,...,-`_:�.".``��` ,.. � 13, This Release is binding upon and shall inure to the benefit of the Parties, their respective officers, agents, employees, attorneys, representatives, assigns, successors-in-interest, parent corporations, subsidiary corporations, partnerships and joint ventures. 14. Each person executing this Release does hereby personally represent and warrant to the other signatories that he or she has the authority necessary to execute this Release, and that no other consents or approvals of anyone are required or necessary for this Release to be binding. 15. This Release shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. 16. Should any action in law or equity be brought to enforce or interpret the terms of this Release, the prevailing party shall be entitled to recover its costs, including reasonable attorney's fees, incurred in the prosecution or defense of such litigation. 17. This Release has been jointly negotiated and drafted. The language of this Release shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. 18. Should any term of this Release be deemed unlawful, that provision shall be severed and the remaining terms shall continue to be valid and fully enforceable. -6- ------------- 19. The Parties agree to execute such other documents and take such other action as may be reasonably necessary to finalize and perform this Release. 20. The Parties may execute duplicate originals of this Agreement or any other documents they are required to sign or furnish pursuant to this Agreement. Dated: January, 2000 C.N.B. Excavating, Inc. By: see attached Tina Childers Its: President Dated: February 1. :; 00 City of Redlands ATTEST: By: By: 11-5 Lor le Poyzer Pat Gilbreath Its:City -lerk its: Mayor APPROVED AS TO FORM: Dated: January 2000 HILLYER& IRWIN By: see attache David E. Bergquist Attorneys for C.N.B. Excavating, Inc. `dLiTIG159Siw5 —7— e - - ------ - - - - __ --- --- ---- _. ...e ------ 19, -----19, The Portico;agree to execute such other documents and take sucl.a[tier action as may be reasonably recess"to finalize and perform this Release. 20. The Parties tray execute duplicate originals of*this Agreemcut or a vir other documents they are required to sign or ftrmish pursuant to this Agreement, I}atcd' Jarrua 2000C,N,B. Excavating,Inc. �s `rfna Ghildcr s IN: President. Dated, JanrYst}rs 2000 Pity of Itedla.ncls By: Its: APPROVED AS TO FORM: Dated.January_$� 2000 HII.LYER IRWIN By: _- ..; ` _ 01 favid E, 13erggri Attorneys for (:,N.H. Excavatinp, :rrc.