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HomeMy WebLinkAboutNMN Construction, Inc.; 2025-06-20; PWS25-3661TRAN  MUTUAL RESCISSION OF CONTRACT This Agreement of Mutual Rescission of Contract (“Agreement”) is made and entered into this _____ day of __________, 2025 by and between N.M.N. Construction, Inc. (“Contractor”) and the City of Carlsbad, a municipal corporation of the State of California (“City”). Contractor and City are sometimes individually referred to herein as “Party” and collectively as "Parties." The Parties hereby mutually acknowledge and agree that: On Feb. 20, 2025, the Parties entered into a contract for repairing the Kelly Channel; the Parties wish to rescind the Kelly Drive Channel Emergency Repair – Contract No. 6606, Bid No. PWS25-3661TRAN (“Kelly Channel Contract”); the City has paid Contractor a total of $36,197.97 to date under the Kelly Channel Contract for mobilization, public notification, a stormwater pollution plan, and dewatering the site; the City is currently holding $1,905.16 in retention funds; and $38,103.13 fully and adequately compensates Contractor for services performed pursuant to the Contract and the fair and reasonable amount of Contractor’s termination cost, if any. Therefore, in consideration of the mutual covenants of the Parties, the Parties hereby rescind the Kelly Channel Contract effective as the day first written above. This Agreement shall be binding upon the Parties, their successors, assigns, and personal representatives. Release of the City: Contractor hereby releases and absolutely and forever discharges the City and its Council, agents, contractors, employees, attorneys, successors and assigns, and each of them, from any and all claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions and causes of action, of every kind and nature whatsoever, existing on the effective date of this Agreement, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which Contractor has or claims to have, now or hereafter, against the City and its Council, agents, contractors, employees, attorneys, successors and assigns, and each of them, arising out of or in connection with this Agreement. Release of Contractor: City hereby releases and absolutely and forever discharges the Contractor, and its employees, attorneys, successors and assigns, and each of them, from any all claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions and causes of action, of every kind and nature whatsoever, existing on the effective date of this Agreement, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which City has or claims to have, now or hereafter, against the Contractor, and its employees, attorneys, successors and assigns, and each of them, arising out of or in connection with this Agreement. Inapplicability of Civil Code § 1542: The Parties acknowledge and agree that the releases contained in this Agreement are special releases and that Section 1542 of the Civil Code of the State of California is not applicable. If and to the extent it should be determined that the releases contained in this Agreement are not special releases, contrary to the Parties’ acknowledged intention and agreement, each Party specifically waives the benefits of the provisions of Section 1542 of the Civil Code of the State of California, which Section provides as follows:  !             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. Waiver of Unknown Claims: Party herby acknowledges that such Party is aware that such Party may later discover facts in addition to or different from those which such Party now knows or believes to be true with respect to the subject matter of this Agreement and that it is such Party’s intention, notwithstanding, to fully, finally and forever, settle and release all of the claims released by this Agreement, known or unknown, suspected or unsuspected, which now exist, may exist or previously existed between the Parties. In furtherance of such intention, the releases given in this Agreement shall be and shall remain in effect as a full and completed release, notwithstanding the discovery or existence of any such additional or different facts. The Parties, further, accept and assume the risk that such facts may turn out to be different from the facts now known or believed to be true by the Parties and agree that the releases given in this Agreement shall remain in all respects effective and shall not be subject to termination or rescission by reason of any such difference in fact. The Parties acknowledge that the City will release the remainder of the retention funds under the Contract upon the execution of this Agreement by both Parties and proper closeout. This Agreement shall be enforced under the laws of the State of California, with venue in the County of San Diego. This is the entire agreement. // // // // // //  !           CONTRACTOR N.M.N. Construction, Inc. CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Geoff Patnoe, City Manager (print name/title) ATTEST: By: SHERRY FREISINGER, City Clerk By: (sign here) Deputy/Assistant City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney By: Assistant City Attorney Doug Nixon / CFO Ken Long / President  !