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HomeMy WebLinkAboutContracts & Agreements_15-2014_CCv0001.pdf SETTLEMENT AND MUTUAL RELEASE AGREEMENT 1. PARTIES AND DATE. This Settlement and Mutual Release Agreement ("Agreement") is entered into this 4th day of March, 2014 ("Effective Date") by and between the City of Redlands ("City") and Mamco, Inc. ("Mamco"),who agree as set forth below. The City and Mamco may hereinafter be individually referred to as a"Party" and,together as the"Parties." 2. RECITALS. 2.1 On or about March 15, 2011, the City entered into a written contract with Mamco ("Contract") under which Mamco agreed to provide the work, labor, equipment, and materials necessary to construct a work of improvement known as the 2010-2011 Pedestrian Ramp and Sidewalk Infill Project and the City agreed to pay for said work, labor, equipment, and materials ("Project"). 2.2 Mamco claims that the City breached the Contract by, among other things, failing to pay for additional work completed on the Project, failing to pay retention, and causing delays to the Project. The City disputes the claims set forth by Mamco. 2.3 The City claims Mamco breached the Contract by, among other things, failing to achieve completion of the Project by the Contract completion date and by failing to complete its scope of work on the Project. Mamco disputes the claims set forth by the City. 2.4 On or about March 23, 2012, Mamco filed a lawsuit with the San Bernardino County Superior Court, Case No. CIVDS1203062, setting forth causes of action for breach of contract and breach of warranty ("Complaint"). Thereafter, on or about April 20, 2012, the City filed its answer to the Complaint, denying the claims set forth in the Complaint. 2.5 On or about October 16, 2012, the City filed a Cross-Complaint against Mamco, setting forth a cause of action for breach of contract ("Cross-Complaint"). Thereafter, on November 21, 2012, Mamco filed an answer to the Cross-Complaint, denying the claims set forth in the Cross-Complaint. The Complaint and Cross-Complaint are collectively referred to as the"Action." 2.6 On January 29, 2013, the Action was transferred to Riverside Superior Court, Case No. RIC1301249. 2.7 The City, on the one hand, and Mamco on the other hand, now desire to fully and finally settle and resolve any and all rights, claims, disputes, causes of action and alleged claims which currently exist in favor of the Parties, including, but not limited to,all claims arising out of the Contract,the Action, or anything related to the Project, except as specifically set forth herein. The Parties expressly intend that this settlement shall further pertain to any claims for attorneys' fees, witness fees, and/or all other costs or expenses. 17942,0008718592763.1 3. TERMS. 3.1 Recitals. The Recitals are incorporated into and are a part of this Agreement. 3.21- Settlement. In consideration of this Agreement and the promises set forth herein, the City agrees to pay Mamco the total sum of One Hundred and Forty Thousand Dollars and 00/100($140,000.00)("Settlement Amount"). The City shall pay this Settlement Amount within thirty (30)days of the Effective Date of this Agreement. The Settlement Amount shall be made payable to Mamco,Inc. 3.3 Dismissal. Within ten (10) days of Mamco receiving the Settlement Amount, Mamco shall dismiss the Complaint, with prejudice, in full, as to all Parties, and the City shall dismiss the Cross-Complaint,with prejudice,in full, as to all Parties. 3.4 Mutual Release. In further consideration of this Agreement and in recognition of the benefits to be derived therefrom, and except as to the rights, duties and obligations of the Parties as set forth in this Agreement,the Parties hereby release,and fully and finally and forever discharge each other, and each of their associates, owners, predecessors, successors, heirs, executors, administrators, council members, assigns, agents, directors, officers, partners, employees, representatives, lawyers, and all persons acting by, through, under,or in concert with them or any of them(hereinafter collectively called"Additional Releasees")of and from any and all manner of actions or causes of action, in law or in equity, suits, debts, liens,liabilities, claims, demands, and damages of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called "Claims"), that the Parties may now have against each other or against any of the other Additional Releasees as alleged in or arising out of, or which could have been raised in, based upon, or related to the Contract,the Action, or the Project. 3.5 Waiver of Civil Code Section 1542. Except as specifically set forth herein, it is the intention of the Parties that the release entered into as part of this Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorney's fees, damages, losses, claims, liabilities and demands of any character, nature and kind, known or unknown,suspected or unsuspected, to be so barred; in furtherance of which intention the Parties expressly waive any and all right and benefit conferred upon them by the provisions of Section 1542 of the California Civil Code, 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. The Parties hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code was bargained for separately. The Parties hereto expressly agree that the release provisions herein contained shall be given fall force and effect in accordance with each and all of their express terms and provisions, including but not limited to those terms and provisions relating to unknown or unsuspected claims, demands and causes of action hereinabove specified. The Parties specifically agree to assume the risk of the subsequent discovery or understanding of any matter, fact or law which if now known or understood would 1794100087\8W763.1 2 in any respect have affected this Agreement. 3.6 Integrated Agreement. This Agreement is the final and entire agreement between the Parties concerning the subject matter of this Agreement. All agreements of the Parties with respect to the subject matter hereof are in writing and supersede all prior written and oral agreements and understandings of the Parties. This Agreement cannot be modified except by a written document signed by all of the Parties. None of the Parties are relying upon any other negotiations, discussions or agreements in connection with the subject matter of this Agreement. This is a fully integrated agreement. 3.7 Representation and Warranty._ Each party hereby represents and wan-ants that it is the sole and rightful owner of all rights, title, and interest in every claim and other matter which it releases herein and has not heretofore assigned or otherwise transferred any interest in any claim which it may have against any other party or any party's respective parents, affiliates, subsidiaries, predecessors, and each other person or entity released and discharged pursuant to this Agreement. 3.8 Independent Representation by Counsel. The Parties represent and declare that in executing this Agreement they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently-selected counsel, concerning the nature, extent and duration of their rights and claims hereunder, and that, except as provided herein,they have not been influenced to any extent whatsoever in executing this Agreement, by any representations, statements or omission pertaining to any of the matters herein contained by any party or by any persons representing any Party. 3.9 Governing Law. This Agreement shall in all respects be interpreted,enforced and governed by and under the laws of the State of California. 3.10 Construction. This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. 3.11 Execution in Counterparts. This Agreement may be executed in counterparts by the Parties and shall become effective and binding upon the Parties at such time as all of the signatories hereto have signed the original or a counterpart original of this Agreement. All counterparts so executed shall constitute one Agreement, binding upon all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the original or the same counterpart. 3.12 Attorneys Fees. Should any Party hereto retain counsel for the purpose of enforcing or preventing the breach of any provision of this Agreement as set forth in the Agreement, including but not limited to, instituting or defending any action or proceeding to enforce any provision of this Agreement, including for damages by reason of any alleged breach or for a declaration of such Party's rights or obligations hereunder or for any other judicial remedy, then the prevailing Party shall be entitled to be reimbursed by the losing Party for all costs and expenses incurred thereby, including, but not limited to, actual attorneys, paralegals, experts and accountants fees. 1794100087W 7sa.1 3 3.13 Severability. If any portion of this Agreement is declared by a court of competent I � jurisdiction to be invalid, illegal, unconstitutional or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full force and effect as if no invalid or unenforceable provisions had been part of this Agreement. 3.14 Covenant to Take Further Actions Necessary. The Parties hereby agree to execute such other documents and to take such other actions as may be reasonably necessary to further the purposes of this Agreement, with the Parties to bear their own costs and attorneys fees for these additional actions. 3.15 No Third-Party Beneficiaries. Except for the rights of beneficiaries pursuant to the releases provided, there are no third-party beneficiaries to this Agreement and nothing herein shall confer any enforceable rights on non-signatory persons or entities. 3.16 Successors and Assigns. Each of the terms of this Agreement is binding upon each of the Parties and their respective predecessors, assigns, executors, administrators, representatives,principals, insurers,agents, and successors-in-interest. EACH OF THE UNDERSIGNED HEREBY DECLARES THAT THE TERMS OF THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE HAVE BEEN COMPLETELY READ AND ARE FULLY UNDERSTOOD, AND BY EXECUTION HEREOF VOLUNTARILY ACCEPTS THE TERMS WITH THE INTENT TO BE LEGALLY BOUND THEREBY. CITY OF REDLANDS By: PETE AG LAR MAYOR Attest: By: SAM IRWIN CITY CLERK MAMCO, INC. B .N B . E: MA IJ—AL!B B A S I ITS: SECRETARY 17941000MS92763.1 4