The URL can be used to link to this page

Home My WebLink AboutBlue Pacific Engineering Construction, Inc.; 2024-03-19;SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Settlement Agreement") is made and entered into by and between the City of Carlsbad ("City") and Blue Pacific Engineering Construction, Inc. ("Contractor") ( collectively referred to herein as the "Parties" and individually as a "Party") RECITALS A. WHEREAS, on or about April 20, 2021 , the Parties entered into an agreement for the construction of the Tamarack Ave. & Valley St. Pedestrian Improvements Project (the "Project"); B. WHEREAS, A dispute arose between the Parties involving delays associated with critical equipment procurement including the associated impact on project completion and accrual of liquidated damages (the "Dispute"); C. WHEREAS, in or about February 6, 2024, the Parties reached a tentative resolution of the Dispute which was formally accepted by the City Council on February 27, 2024; D. WHEREAS, the Parties desire to avoid the expense, inconvenience, and uncertamties of engaging in litigation and, therefore, desire to settle and compromise their differences and all disputes existing and potentially existing between them, without the admission of liability by any of them. The Parties hereby, with the intention of resolving and releasing all claims arising out of or related to the Project and the Dispute, enter into this Settlement Agreement to formally memorialize the terms of the settlement as set forth below; and E. WHEREAS, the Parties declare that each has read this Settlement Agreement and understands and knows the contents thereof, and represents and warrants that each of the Parties executing this Settlement Agreement is empowered to do so and hereby binds the respective party. TERMS AND CONDITIONS Now, in consideration of the foregoing recitals, which are incorporated herein, the mutual understandings contained in this Settlement Agreement and other good, valuable and sufficient consideration, the Parties agree as follows: 1. FINAL PAYMENT City shall pay Contractor One Hundred Twenty Thousand Seven Hundred Thirty Two Dollars ($120,732) as its final payment for the Project ("Final Payment"). A single check payable to Contractor by the City for the Final Payment will be delivered to Contractor no later than forty- five ( 45) days after the date of the final signature of the Settlement Agreement (the "Final Payment"). 2. COOLING OFF PERIOD The Parties agree that the Dispute has caused tension between them and, in particular, the employees of the Parties. Accordingly, they have mutually agreed to a five (5) year cooling off period where Contractor and its officers directors, partners, or other duly authorized -1- "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." (b) The Parties acknowledge that they may hereafter discover facts different from, or in addition to, those which they now believe to be true with respect to the release of claims. The Parties agree that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or any discovery thereof. ( c) The Parties further acknowledge and agree that waivers of rights under Section 1542 of the California Civil Code have been separately bargained for and are essential and material terms of this Settlement Agreement, and, without such waivers, this Settlement Agreement would not have been entered into. 4.5 Third Party Actions, Warranties and Latent Construction Defects Exclusion. The Parties agree that specifically excluded from the Released Matters and Civil Code 1542 Waiver are any demands, claims and causes of actions arising from or relating to Project warranties or latent construction defects in the Project or any third party action against City arising out of construction of the Project or work at issue in this Dispute and that City shall not be precluded from bringing any action at law or in equity arising from or relating to such matters. This includes, without limitation, any latent defects or claims made pursuant to California Code of Civil Procedure section 3 3 7 .15. 5. GENERAL PROVISIONS. 5.1 Representation and Warranty. The Parties and signatories hereby each represent, covenant and warrant that they are authorized (individually or by their respective principals) to enter into and execute this Settlement Agreement and that they have not previously assigned any claims released or assigned in this Settlement Agreement, in whole or in part, or taken any other steps which would adversely affect the rights which are the subject of this Settlement Agreement. In the event that any of the above representations and/or warranties are breached or any of the representations and/or warranties contained in this subparagraph prove false, the breaching/misrepresenting Party hereby agrees to defend, indemnify and hold the other Party harmless from all damages, loss, liability, costs and attorneys' fees resulting from said breach/misrepresentation. 5.2 No Reliance. Each Party acknowledges: (i) this Settlement Agreement is the resolution of a fully matured set of facts and each Party individually declares and represents it is executing this Settlement Agreement in reliance solely on its own judgment, belief, and knowledge of the facts surrounding the transactions . described in this Settlement Agreement; (ii) this Settlement Agreement is made without reliance upon any statement or representation not contained in this Settlement Agreement of any other Party, or any representative, agent or attorney of any other party; (iii) no promise, inducement or agreement not expressed in this Settlement Agreement -3- 5.12 Attorneys' Fees Incurred in Resolving the Dispute. The Parties agree to bear their own attorneys' fees and costs. However, in the event of any suit or proceeding arising from the enforcement or breach of this Settlement Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other permitted relief. 5.13 Settlement Agreement Binding on Assignees, Successors. This Settlement Agreement shall bind and inure to the benefit of the successors and assigns of the Parties, and to all affiliates, dba's or any other associated entities. 5.14 Severability. In the event that any portion of this Settlement Agreement is deemed illegal, invalid or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of this Settlement Agreement and this Settlement Agreement shall be construed as though such illegal, invalid or unenforceable provision had never been contained herein, unless a court determines the primary purpose of this Settlement Agreement would be frustrated. 5 .15 Counterparts. This Settlement Agreement may be executed in multiple counterparts, all of which shall constitute a binding Settlement Agreement. Digital signatures, when received, shall have the same force and effect as manual signatures. [SIGNATURES ON NEXT PAGE] -5- pages. PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF CLAIMS KNOWN AND UNKNOWN. The Parties have executed and delivered this Settlement Agreement consisting of six (6) WHEREFORE, the undersigned have read the foregoing Settlement Agreement, and fully understa ·ng it agree to its terms, hereby execute this Settlement and Release Agreement and make· effi tive on the date of the last signature hereto. BLUE p ACIFIC ENGINETI By: . CONS~~CTIOf , INC. ( , Q C By vUJ .l AL./ __ Print Name: ,.2Co±t.J/\M.l,.t'.)~C K-. :: I I -/ h C -~ PnntName C:::JJ g l'Vtff>"I E;, U Title _.A_ u-H o......v1 O,._.Q2 C Jo I £-- Date (',~4 0 Title __ "/i_e _S---=rCf'---',-e=rtf"'--------- Date ? /; 7/2 ;I APPROVED AS TO FORM: CIN ~-·""'--~ 'ty Attorney -6-