HomeMy WebLinkAboutContracts & Agreements_47-2013_CCv0001.pdf SETTLEMENT AND MUTUAL GENERAL RELEASE AGREEMENT
This Settlement and Mutual General Release Agreement ("Agreement") is made this 2"d day of
April, 2013,by and between Cooley Construction, Inc. ("Cooley") and the City of Redlands
("City"). Cooley and City are sometimes individually referred to herein as a"Party"and,
together,as the"Parties."
RECITALS
A. Certain claims and controversies have arisen between the Parties relating to
Cooley's performance of grading work at the City's Heritage Park(the"Project").
B. Such claims and controversies specifically relate to Cooley's alleged failure to
comply with City's contract specifications for the Project by Cooley's use of silt fencing for
drainage and erosion control rather than the use of sand bags, and Cooley's performance of
unpermitted saturated soils excavation work (together, these two matters constitute the
"Dispute").
C. It is the intention of the Parties to settle and dispose of, fully and completely, any
and all claims,demands and cause or causes of action existing as of the effective date of this
Agreement and arising out of, connected with, or incidental to the Dispute between the Parties.
D. In consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties desire to settle
the Dispute and agree as follows.
AGREEMENT
1. Silt Fencing. The City hereby agrees to ratify Cooley's substitution of silt fencing for
the use of sandbags for City's Heritage Park grading Project, which were required by Cooley to
use for drainage and erosion control by City's contract specifications and Erosion Control Plan
for the Project.
2. Saturated Soils Excavation. Cooley hereby agrees that the unapproved extra work
performed by Cooley to remove saturated soils material from the Project site shall be at the sole
expense of Cooley, and at no cost to City.
3. Mutual General Release. The Parties promise, agree and generally release each other
as follows:
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3.1 Except as to such rights or claims as may be created by this Agreement, each Party
hereby releases, remises and forever discharges the other Party from any and all claims,demands
and cause or causes of action the Parties may have existing as of the Effective Date and arising
out of,connected with or incidental to the Dispute.
3.2 The Parties specifically waive the benefit of the provisions of California Civil
Code Section 1542 ,which reads 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."
4. Representations and Warranties: Each of the Parties represents and warrants to,
and agrees with, the other Party, as follows:
4.1 Each of the Parties has received independent legal advice from their respective
attorneys with respect to the advisability of making the settlement provided for herein,with
respect to the advisability of executing this Agreement, and with respect to the meaning of
California Civil Code Section 1542.
4.2 No Party(nor any officer, agent, employee, representative, or attorney of or for
any Party),has made any statement or representation or failed to make any statement or
representation to the other Party regarding any fact relied upon in entering into this Agreement,
and each Party does not rely upon any statement, representation, omission or promise of the other
Party(or of any officer,agent, employee,representative, or attorney of or for any Party),in
executing this Agreement, or in making the settlement provided for herein, except as expressly
stated in this Agreement.
4.3 Each of the Parties has made such investigation of the facts pertaining to this
settlement and this Agreement, and all the matters pertaining thereto, as it deems necessary.
4.4 Each of the Parties has read this Agreement and understands the contents hereof.
4.5 In entering into this Agreement and the settlement provided for herein,the Parties
assume the risk of any misrepresentation, concealment or mistake. If a Party should
subsequently discover that any fact relied upon by it in entering into this Agreement was untrue,
or that any fact was concealed from the Party, or that their understanding of the facts or of the
law was incorrect, such Party shall not be entitled to any relief in connection therewith including,
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without limitation on the generality of the foregoing, any alleged right or claim to set aside or
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rescind this Agreement. This Agreement is intended to be, and is, final and binding between the
Parties, regardless of any claims of misrepresentation, promise made without the intention to
perform,concealment of fact,mistake of fact or law, or of any other circumstance whatsoever.
4.6 Neither Party has not heretofore assigned, transferred, or granted,or purported to
assign, transfer,or grant, any of the claims or demands related to the Dispute and disposed of by
this Agreement.
4.7 Each term of this Agreement is contractual and not merely a recital.
4.8 The Parties are aware that they 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 Dispute..
Nevertheless, it is the intention of the Parties to fully, finally and forever settle and release all
such matters, and all claims relative thereto, which now exist, may exist, or heretofore have
existed between them. In furtherance of such intention, the releases given herein shall be and
remain in effect as full and complete mutual releases of all such matters, notwithstanding the
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discovery of existence of any additional or different claims of facts relative to the Dispute.
4.9 The Parties will execute all such further and additional documents as shall.be
reasonable,convenient, necessary or desirable to carry out the provisions of this Agreement,
5. Settlement: This Agreement effects the settlement of claims which are denied and
contested,and nothing contained herein shall be construed as an admission by either Party
of any liability of any kind to the other Party. Each of the Parties denies any
liability in connection with any claim and intends hereby solely to avoid litigation and buy its
peace.
6. Miscellaneous:
6.1 This Agreement shall be deemed to have been executed and delivered within the
State of California and the rights and obligations of the Parties shall be construed and enforced in
accordance with,and governed by, the laws of the State of California.
6.2 This Agreement is the entire agreement between the Parties with respect to the
subject matter hereof,and supersedes all prior and contemporaneous oral and written agreements
and discussions regarding the same. This Agreement may be amended only by an agreement in
writing, signed by the Parties.
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6.3 This Agreement is binding upon and shall inure to the benefit of the Parties,their
respective agents, employees, representatives, officers, directors, divisions, subsidiaries,
affiliates, assigns, heirs, successors in interest and shareholders.
6.4 Each Party has cooperated in the drafting and preparation of this Agreement.
Hence, in anv construction to be made of this Agreement, the same shall not be construed against
any Party.
6.5 In the event of litigation relating to this Agreement, in addition to costs and other
relief, the prevailing Party shall be entitled to recover its reasonable attorneys' fees, including
fees for the use of in-house counsel by a Party.
6.6 The persons executing this Agreement represent and warrant to each other that
they are authorized to bind their respective Parties to this Agreement.
CITY OF REDLANDS COOLEY CONSTRUCTION, INC.
J
Pete Aguilar,'14ayor Tom Sternfeld, Vice President
ATTEST:
Sam Irwin,eity Oerk
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