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HomeMy WebLinkAboutRAN Enterprises Inc; 2020-06-11;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 RAN Enterprises, Inc. ("RAN'') (hereinafter sometimes collectively the ·'Parties") with respect to the following facts: WHEREAS, on or about January 24, 2017, the Parties entered into a contract for public works construction entitled: City Hall Roof Replacement and HY AC Refurbishment, Contract No. 47 I 8, Bid No. PWS 17-55TRAN (''Project''); and, WHEREAS, during the course of the Project, construction-related disputes arose between the Parties, including, but not limited to extra work claims presented by RAN, and set-off credits issued by City ("Disputes"); and, 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, unable to resolve all disputes through contractual or statutory meet and confer processes, on April 9, 2019, RAN filed a lawsuit entitled RAN Enterprises v. City of Carlsbad, San Diego Superior Court, North County Branch, number 37-2019-00018589-CU- BC-NC ("Lawsuit''). The City answered the Lawsuit, denying all allegations; and WHEREAS, on May 13, 20120, the Parties engaged in private mediation with mediator Matthew Argue. At mediation, the Parties reached an agreement to resolve all claims and disputes related to the Project and to release all claims and dismissal of the lawsuit, under the terms as set forth herein, as follows: THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, IT IS HEREBY AGREED AS FOLLOWS: 1. City Council Approval of Settlement: This entire settlement is contingent upon approval by the City Council of the City of Carlsbad at a closed session meeting, which will be scheduled for June 9, 2020. 2. Final Payment of All Outstanding Claims and Contract Work: Subject to City Council approval, RAN shall receive the total sum of $32,826.00 (''Settlement Amount'') in exchange for a full and final Project settlement and release. The Settlement Amount resolves any and all claims by RAN arising from the Project, including, but not limited to, for change order requests, extra work claims, delay claims, disruption claims, retention, statutory penalties, attorneys' fees, litigation costs, contract work or any other matter, compensation or entitlement related to the Project or that was alleged, or could have been alleged by RAN in the Lawsuit. Page 1 of5 3. Payment: If the City Council approves, the City will undertake best efforts to transmit payment to RAN within two weeks of City Council approval, but in no event shall payment be made later than July 9, 2020. 4. City Credits or Set-Offs: As part of the settlement, the City releases RAN from any and all claims of credits, backcharges or set-offs related to the Project. 5. Lien Releases and Close Out Deliverables: RAN represents that it has obtained final lien releases on final payment from all Project subcontractors and material suppliers. RAN is unaware of any subcontractor or material supplier claims of any kind remain or are pending and that RAN and the City are unaware of any close out deliverables, such as as-builts, warranties or any other requirements, that need to be provided. The settlement does not release RAN, its subcontractors, manufacturer or suppliers from any contractual, product or labor warranties, including but not limited to, roof, mechanical and HY AC warranties to the extent such warranties exist. This agreement is not intended to nor shall it expand any warranties under the contract or California law. 6. Mutual General Release and Exceptions: Subject to all conditions and exceptions set forth herein, including the contingency of City Council approval and payment by the City of the Settlement Amount, the Parties hereto, on behalf of themselves and except as otherwise expressly provided in this Agreement, the Parties 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 any remaining product or labor warranty obligations (to the extent they exist) or latent defects, including but not limited to, any contractual, product or labor warranties, including but not limited to, roof, mechanical and HY AC warranties. 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 Page 2 of5 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 limitations and exceptions 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 RAN represents that it is unaware of any remaining, pending, or outstanding claims by or against its payment bond, performance bond or its surety related to this Project and no Stop Notices, subcontractor or supplier claims are threatened or pending ("Third Party Claims"). In the event City receives any payment, 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 RAN to provide services on the Project, RAN agrees to immediately defend and indemnify City from any and all claims, costs and attorney's fees arising from any such matter. The City represents that as of the execution of this Agreement, it is unaware of any Third Party Claims asserted against RAN. 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. 10. 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. Pursuant to Evidence Code section l l 23(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. Page 3 of5 12. Advice of Counsel 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. 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 representations 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. Page 4 of5 17. Attorneys' Fees Each Party agrees to bear its own attorneys' fees and costs arising from the Lawsuit or in any manner related to the Agreement, whether provided by statute or contract. 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 wi!! 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. Sevcrability 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. APPROVED AS TO FORM Celia A. Brewer, Cit1 AUome1 By: /J/Auk,b /(. ~ Asst/Deputy City Attorney City of Carlsbad, CA Dated: Its: aident CityofC~d By: ( ~ -~,-_-,/_.L---'..,..,-------- Dated: _jl.31>,, .. (2.1)-:,_______ Its: ---~ ti~~---- Page 5 of5