Loading...
HomeMy WebLinkAboutRamona Paving and Construction Corporation; 2020-10-08;i qr DPage 1 of 3 CM&I DIVISION Ramona Pa Release & Settlement of Claims A i Kr i ient CA SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS This Settlement Agreement and Mutual Release of All Claims ("Agreement") is entered into on 2C7's- , 2020 between Ramona Paving and Construction Corporation, a California corporation ("Ramona") and the City of Carlsbad, a municipal corporation (the "City"), collectively, the "Parties." RECITALS 1. After terminating a contract with a third-party contractor and re-bidding, on July 9, 2019, the City awarded Contract No. 6001-180L, Bid No. PWS19-754TRAN ("Contract") to Ramona for the 2018 Pavement Overlay capital improvement project (Project). 2. The Contract required Ramona to use asphalt material meeting standard City specifications, including a Hveem Stability, or S Value, of 35. The City contends approximately 30% of the asphalt material used for the Project did not meet the required S Value. Ramona disputes the City's contention. 3. The Parties have met and conferred and have reached an agreement to settle their dispute and release one another from all Project-related claims. NOW, THEREFORE, the Parties agree as follows: A. City shall reduce the Contract payment for Bid Item 7 (PG64-28PM C2 asphalt) by $250,000 (from $1,730.422.40 to $1,480,422.40), and Ramona shall provide to the City a three-year warranty for all Contract work performed on the Project from the last pave date of September 19, 2019. B. Ramona shall accept the reduced payment in full satisfaction of Contract work performed for Bid Item 7 (PG64-28PM C2 asphalt) on the Project. C. Ramona represents that it has obtained final lien releases on final payment from all Project subcontractors and material suppliers. Ramona is unaware of any subcontractor or material supplier clams of any kind remaining or pending, and Ramona and the City are unaware of any close out deliverables that need to be provided. This Agreement does not release Ramona, its subcontractors, manufacturer, or suppliers from any contractual, product or labor warranties that may exist. D. Ramona agrees to defend, indemnify, and hold harmless the City and its officers, directors, managers, employees, agents, successors and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind, including attorney's fees, arising out of or resulting from any claim of a third party in connection with Ramona's performance of its obligations under this Agreement. RE:CD VL, crry OCT j.; E. Each Party releases, waives, and forever discharges the other Party from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever ("Claims"), whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity, which each Party ever had, now have, or hereafter can, shall, or may have against the other Party for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the date of this Agreement arising out of or relating to this Agreement, except for the warranty obligations of Ramona or its subcontractors, manufacturers, or suppliers for Ramona's Contract work on the Project. Each Party further understands that it may later discover Claims or facts that may be different from, or in addition to, those that it now knows or believes to exist regarding the subject matter of this Agreement, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and the Party's decision to enter into it and grant the release contained in the preceding paragraph. Nevertheless, the Parties intend to fully, finally, and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the release contained in the preceding paragraph, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given in this Agreement is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Parties waive any right or Claim that might arise as a result of such different or additional Claims or facts. The Parties have been made aware of, and understand, the provisions of California Civil Code Section 1542 ("Section 1542"), which provides: "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 expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release. F. This agreement is binding on and inure to the benefit of the Parties' and their successors and assigns. G. Nothing in this Agreement is to be construed as an admission of liability, fault, or improper action on the part of either Party. H. Each Party shall bear their own attorney's fees arising from this Agreement. I. Any action commenced to enforce or interpret any provisions of this Agreement shall be governed by the laws of the State of California and shall be brought in a state court in San Diego County, California. J. This Agreement contains the Parties' entire agreement with respect to its subject matter and superseded any prior written or oral agreements. The Agreement may only be amended by a writing signed by both Parties. Release & Settlement of Claims Agreement Ramona Paving Page 2 of 3 Ramona Paving and Construction Corporation, a California co oration By: CIT of the S By: s Thea r dent & S etary CARLSBAD, a municipal corporation lifornia K. Each Party has had an adequate opportunity to review the provisions of this Agreement and to submit it to legal counsel for review and advice. Consequently, the Parties agree any rule of construction requiring the provisions of this Agreement to be interpreted and construed against the drafter shall not apply to the interpretation or construction of this Agreement. L. If a court of competent jurisdiction determines a provision of this Agreement to be void or voidable, the provision shall be severable and shall not affect the validity of the remainder of the Agreement. M. Each person signing below on behalf of a Party represents and warrants that the person is signing with full and complete authority to bind the Party to every term of this Agreement. Scott Chadwick, City Manager APPROVED AS TO FORM: CEL 4. BREWER, City Attorney By: y A /stant City Attorney Release & Settlement of Claims Agreement Ramona Paving Page 3 of 3 Unconditional Waiver and Release on Final Payment NOTICE TO CLAIMANT: THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM. IDENTIFYING INFORMATION Name of Claimant: Lehigh Hanson Inc. / Hanson Aggregates Pacific Southwest LLC Name of Customer: RAMONA PAVING & CONSTRUCTION CORP. Job Location: 2018 Pavement Overlay, La Costa Avenue, Carlsbad, California 92009 Owner:City of Carlsbad Job Name (if any): 2018 Pavement Overlay UNCONDITIONAL WAIVER AND RELEASE This document waives and releases lien, stop payment notice, and payment bond rights the claimant has for labor and service provided, and equipment and material delivered, to the customer on this job. Rights based upon labor or service provided, or equipment or material delivered, pursuant to a written change order that has been fully executed by the parties prior to the date that this document is signed by the claimant, are waived and released by this document, unless listed as an Exception below. The claimant has been paid in full. EXCEPTIONS This document does not affect any of the following: Disputed claims for extras in the amount of: $0.00 Signature Mar-th Asfatil Martha Asfaw Agent Lehigh Hanson Inc. / Hanson Aggregates Pacific Southwest LLC September 24, 2020