HomeMy WebLinkAboutLeonida Builders Inc; 2019-11-15;SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims (hereinafter the "Agreement") is made
between the City of Carlsbad ("City"), and Leonida Builders, Inc., ("Leonida") (hereinafter
sometimes collectively the "Parties") with respect to the following facts:
WHEREAS, on or about January 21, 2018, the Parties entered into a contract for public
works construction entitled: Bridge Preventative Maintenance Program (2017) at Poinsettia
Lane Overhead and Sidewalk Barrier and Calle Barcelona Pedestrian Overcrossing,
Contract No. 6066-17, Bid No. PWS 18-46TRAN ("Project");
WHEREAS, during the course of the Project, construction related disputes arose between
the Parties, including, but not limited to extra work claims and delay claims presented by
Leonida, and delay and deficiency claims issued by City;
WHEREAS, under the internal claims dispute provisions of the Project contract and other
provisions of law, including, but not limited to Public Contract Code section 9204, the
Parties exchanged correspondence and engaged in meet and confer conferences in an effort
to resolve all disputes and close out the Project; and
WHEREAS, on August 6, 2019, the parties, under Public Contract Code section 9204, met
and conferred, and through negotiation, reached an agreement to resolve all claims and
disputes related to the Project and to release all claims, under the terms as set forth herein,
as follows:
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED
HEREIN, IT IS HEREBY AGREED AS FOLLOWS:
I. City Council Approval of Settlement: This entire settlement is contingent upon
approval by the City Council of the City of Carlsbad at the next reasonably
available City Council closed session meeting.
2. Final Payment of All Outstanding Claims and Contract Work: Leonida shall receive final
Project payment for all disputed Project claims in the total sum of $49,598.00 ("Disputed
Sum Settlement"). In doing so, City will prepare Contract Change Order 3 ("CCO 3")
and issue a final payment application that includes the Disputed Sum Settlement, any
remaining retention, plus credits for extra work performed and deductions for work not
performed as previously identified in Contract Change Order 2 ("CCO 2"). It is
understood that the Disputed Sum Settlement includes the $14,350 previously credited
with Item #1 in CCO 2, executed on March 4, 2019. Leonida has returned the check
including payment for Item # I from CCO 2, which the City has voided. The Parties agree
that Exhibit A, attached, accurately calculates the final net Project payment due by City
to Leonida, including retention, in exchange for a full and final Project settlement and
release.
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3. Liguidated Damages: No liquidated damages will be assessed. The City will add days to
the Project, in an amount that eliminates the potential for any liquidated damages.
4. Notice of Deficiency: The City's Project file shall be updated to reflect that the Notice of
deficiency dated August 10, 2018 has been withdrawn.
5. Lien Releases and Close Out Deliverables: Leonida shall provide to City all final
lien releases on final payment, and any other close out deliverables, such as as-
builts, warranties or any other requirements, if not previously provided.
6. Mutual General Release and Exceptions:
Subject to all conditions and exceptions set forth herein, the Parties hereto, on behalf of themselves
and except as otherwise expressly provided in this Agreement, shall hereby forever release,
discharge and acquit each other and their respective principals, agents, directors, officers,
shareholders, employees, attorneys, and other representatives from any and all Project claims,
costs and obligations of every kind, known and unknown, matured and unmatured, now existing
or arising in the future, including but not limited to, any and all Project claims, demands, damages,
penalties, fines, debts, causes of action, liabilities, costs, fees, attorney's fees and obligations,
arising out of or in any way relating to the Project.
The releases contained within this Settlement Agreement do not apply to claims for breach of
the terms and representations contained in this Settlement Agreement. Additionally, the releases
contained within this Settlement Agreement do not apply to (a) any continuing Leonida
guaranties or warranties required by the Project contract; (b) any third party personal injury or
property damage claims subject to the Project contractual indemnity and insurance provisions;
(c) any claims by City for latent defects in Leonida's Project work, as defined by CCP 337.15;
(d) any Leonida wage, labor, wage compliance or Labor Commissioner administrative claims;
and, (e) any defense and indemnity obligations that Leonida may owe to the City, arising from
any third-party claims or claims made by any supplier or subcontractor, who performed work on
this Project.
7. Civil Code Section 1542:
It is further understood and agreed that, subject to all conditions and exceptions, the releases
contained in this Agreement extend to all claims of every nature and kind whatsoever, known
and unknown, and the Parties expressly waive any and all rights under California Civil Code
Section 1542 which 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."
The Parties hereby waive any and all rights they may have under Section 1542 as it presently
reads or as it shall hereinafter be amended. In connection with this waiver, and subject to the
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limitations contained in this agreement, the Parties acknowledge that they are aware that they
may later discover claims presently unknown or unsuspected or facts in addition to or
different from those they now know or believe to be true with respect to the claims released
herein. Nevertheless, they intend through this Agreement to release fully, finally, and forever,
in the manner described herein, all claims released in this Agreement. Accordingly, the
release shall remain in effect as a full and complete release of the claims released
notwithstanding the discovery or existence of any such additional facts or different claims
relating thereto.
8. Representations
Leonida represents that there are no remaining, pending or outstanding claims by or against its
payment bond, performance bond or its surety related to this Project and no Stop Notices are
threatened or pending. In the event City receives any labor code claims, labor compliance claims,
wage claims, administrative claims or claims from a surety, subcontractor, material supplier,
consultant or any other person or entity hired or otherwise retained by Leonida to provide
services on the Project, Leonida agrees to immediately defend and indemnify City from any and
all claims, costs and attorney's fees arising from any such matter.
9. No Admissions
By entering into this Agreement, the Parties do not admit any contract breach, failure to perform,
delays, statutory violations or deficiencies as it relates to the Project. It is understood and agreed
that entering into this Agreement is not an admission and intends merely to avoid and extinguish
further dispute and expense.
I 0. Successors and Assigns
The Parties hereto further agree that this Agreement shall be binding upon their successors,
predecessors, assigns, heirs, executors, administrators, spouses, associates, partners, trustees,
officers, directors, principals, shareholders, servants, agents, attorneys, employees, insurance
companies, bonding companies, sureties and affiliates.
11. Choice of Law
If any action is commenced to enforce or interpret any of the provisions of this Agreement,
the Parties hereby agree that this Agreement shall be interpreted, enforced and governed by
the laws of the State of California. Each Party hereto agrees that any action to enforce this
Agreement, or any rights hereinafter, must be brought in a court having its situs within the
County of San Diego, State of California, and no other court. Pursuant to Evidence Code
section 1123(b), this Agreement is enforceable, binding and admissible in a court of law and
is exempt from the confidentiality provisions of Evidence Code section 1119 et seq.
12. Advice of Counsel
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The Parties acknowledge that they have been represented by counsel of their choice in the
negotiations leading up to the execution of this Agreement and that they have read this
Agreement and have had it fully explained to them by their counsel.
Ill
13. Construction
Each Party has cooperated in the drafting and preparation of this Agreement. In interpreting this
Agreement, any uncertain or ambiguous provision shall not be construed against any Party solely
on the basis that that Party selected the uncertain or ambiguous language.
14. Authority
The Parties represent and warrant they are the sole and lawful owners of all claims they are
releasing herein, and that they have the power and authority to execute a release of any such
claims and that they have not heretofore assigned, transferred, sold, conveyed, hypothecated or
otherwise disposed of any claim or demand relating to any matter covered by this Agreement to
any person, corporation, or entity. Additionally, the Parties hereto, and each of them, represent
and warrant that they have the sole right and exclusive authority to execute this Agreement, and
that they are not restricted in doing so. In the event that any Party breaches any of the representa-
tions or warranties contained in this Paragraph, such Party agrees to immediately indemnify each
other Party from any and all claims, demands, loss, damage, liability and expense, including
costs of suit and reasonable attorneys' fees resulting from such breach.
15. Good Faith: Other Actions
Each Party expressly covenants to deal with the other Party in good faith in the performance of
this Agreement. The Parties further agree and authorize their respective attorneys to execute any
and all documents and to undertake any and all actions reasonably necessary to effectuate the
terms of this Agreement. Each of the Parties hereto represents that they have no other action or
proceeding against the other pertaining to the subject matter of the Agreement or Project.
16. Integration
This Agreement contains the entire agreement of the Parties hereto with respect to the subject
matter herein contained. There are no restrictions, promises, covenants, undertakings or
representations other than those expressly set forth herein, and each Party hereby expressly
acknowledges that he, she or it has not relied upon any restrictions, promises, covenants,
undertakings or representations whatsoever by any Party hereto, nor any agent or attorney of
any other Party hereto, other than those expressly contained herein. This Agreement may be
amended only by written instrument executed by all of the Parties hereto.
17. Attorneys' Fees
Each Party agrees to bear its own attorneys' fees and costs related to the Agreement, whether
provided by statute or contract. In the event that the Settlement check is not provided or does
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not clear the bank upon which it is drawn, the prevailing Party in such action or proceeding
shall be entitled, in addition to any and all other relief granted therein, to an award in said
action or proceeding of that sum of money which represents the actual attorneys' fees
reasonably incurred by the prevailing Party therein in the prosecution or defense of said action
or proceeding.
18. Counterparts
This Agreement may be executed in counterparts and shall be effective when such counterparts
have been executed by all Parties hereto, as if such Parties had all executed one original. A
facsimile signature will be deemed to be equally as valid as an original signature.
19. Jurisdiction
Any dispute related to this agreement shall be determined in San Diego Superior Court, North
County Division.
20. Severability
In the event that any one provision or portion of this Agreement is later determined by a court of
competent jurisdiction to be void or voidable, the Parties agree that any such language or
provisions shall be severable, and that any such provisions so severed shall not affect the validity
of the remainder of the Agreement subsequent to such severance.
By:
Dated: l~lCJ
Its: ~-N t:fAtJAC,¢lZ
Approved as to Form By Counsel:
Leonida Builders. Inc.
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City of Carlsbad
By:
eyers Fozi &
Dated: \C / ~ ( \°',.
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Settlement Agreement Exhibit A
Bridge Preventative Maintenance Program (2017) at Poinsettia Lane Overhead and
Sidewalk Barrier and Calle Barcelona Pedestrian Overcrossing, Contract No. 6066-17, Bid
No. PWS18-46TRAN
City of Carlsbad/Leonida Construction, Inc.
Final Project Reconciliation
Orillnll Scope of Work
1·22 Toto1I \lillu• of orl1lno1I scopa of work not performed/ dedu<tad.
~IScope
Chanctonlers
CCONo.2
l lncrt-ue aid Item # 1
2 Add 18 Workln& Days
3 Fon10 Applyln1 LC>s
4 R&R Concrttt cu,b (Poinsettia 8rldgt)
S O.l«lt Sid Item 12
6 ~,t, Bid Item 0
7 OtetHSI bid lttm "9
I lnCA!IH Bld Item 113
9 Replace 2 s/w p,nels IC•~ hrt1lon1)
CCONo.2
CCONo.3
1 Settlement Agreement (Includes $1,4,JSO rrom CCO No. 21
2 Deltle CCO No. 2 Item 1 ($14.350), This amount Is included in Settlement A,retmenl.
CCONo.J
36,SIS.00
H,SIS.00
14.SSO.OO
2,◄41,00
( 12.000.00)
(21.000 00)
U,58!1.00)
2,500.00
1,380.00
(lS,907,00)
49,591.00
( lit,3S0.00)
J5.241.00
Orlclnal Scopa t CCO No, 2 + CCO No. 3 • Total 5S,9.Z6AXI
Retention RtlHn lt,'39,75
Check Amount $ 75,565.75
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