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HomeMy WebLinkAbout1989-06-06; City Council; 10057; Settlement AgreementCIT-” OF CARLSBAD - AGENDA BILL WITH DEPT. H SOUTHLAND PAVING, INCORPORATED, REGARDING IMPROVEMENTS TO ELM AVENUE AND EL CAMINO REAL, PROJECT NO. 3230 RECOMMENDED ACTION: Adopt Resolution No. fTd/% approving a settlement agreement with Southland Paving, Incorporated regarding the improvements to Elm Avenue and El Camino Real, Project No. 3230. ITEM EXPLANATION: On August 2, 1988, the City Council adopted Resolution No. 88-260 accepting the construction of improvements to Elm Avenue and El Camino Real as complete. This project included the widening of Elm Avenue east of El Camino Real to four (4) lanes as well as the installation of sidewalks, street lights, drainage improvements, and related landscaping. The prime contractor for the project, Southland Paving, Incorporated, experienced numerous delays during the course of constructing the project due entirely to matters under the sole control of the contractor. The project was effectively completed a total of 111 calendar days beyond the contract completion date. The contract documents and project specifications included provisions for the assessment of liquidated damages in the amount of $750 per calendar day for each day beyond the contract completion date. Accordingly, the contractor was assessed a total of $83,250 for late completion which was deducted from the contractor’s last progress payment. To avoid expensive and protracted litigation, the City Attorney’s Office has completed negotiations with counsel representing the contractor resulting in a complete and final resolution of the matter. City staff is in agreement with the terms and conditions of the settlement agreement and recommends its acceptance. A copy of the Release and Satisfaction Agreement is attached and will be recorded following its acceptance by the City Council. FISCAL IMPACT: The City deducted $83,250 from the final progress payment to the contractor representing the value of the liquidated damages assessment. These funds have remained in the project account number 312-820-1840-3230. The attached Release and Satisfaction Agreement incorporates the settlement payment of $49,000 to the contractor. Staff recommends approval of the agreement. EXHIBITS : 1. Resolution No. 8q+/y6 approving a settlement agreement with Southland Paving, Incorporated, regarding the improvements to Elm Avenue and El Camino Real. 2. Release and Satisfaction Agreement. 1 2 3 ,4 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 RESOLUTION NO. 89-1 76 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A SETTLEMENT AGREEMENT WITH SOUTHLAND PAVING, INCORPORATED, REGARDING IMPROVEMENTS TO ELM AVENUE AND EL CAMINO REAL, PROJECT NO. 3230 WHEREAS, the City Council of the City of Carlsbad, California, did on August 2, 1988, adopt Resolution No. 88-260 accepting the construction of improvements to Elm Avenue east of El Camino Real, Project No. 3230, as complete and directed City Clerk to record the Notice of Completion; and WHEREAS, this project was completed by the prime contractor, Southland Paving, Incorporated, 111 calendar days beyond the project contract completion date due to matters under the sole control of said contractor; and WHEREAS, as provided for in project contract documents and specifications for said project, the assessment of liquidated damages for late project completion was made against the prime contractor by City; and WHEREAS, counsel representing said contractor and the Carlsbad City Attorney's Office have negotiated a resolution of outstanding issues and claims regarding this matter; and WHEREAS, a Release and Satisfaction Agreement providing a full release and discharge to the parties of said agreement has been prepared; and WHEREAS, said Release and Satisfaction Agreement is fair and equitable to both parties, and the approval of which is a matter of public benefit and necessity by avoiding expensive and protracted litigation between the parties. 1 2 3 4 5 6 7 a 9 10 11 1% 12 14 1t 1E 17 1E 1s 2c 21 22 2: 24 2E 2€ 27 2E NOW, THEREFORE, BE IT RESOLVED by the City Council of the City oECarlsbad, California as follows: 1. That the above recitations are true and correct. 2. That a Release and Satisfaction Agreement between the City of Carlsbad and Southland Paving, Incorporated, regarding improvements to Elm Avenue and El Camino Real, Project No. 3230, has been prepared and is hereby accepted. 3. That the City Clerk is hereby authorized and directed to record said agreement and forward copies of said recorded document to the City Attorney's Office, the Municipal Projects Department and Mr. Robert J. Marks, Marks and Golia, Attorneys at Law, 8555 Aero Drive, Suite 208, San Diego, California, 92123. 4. That the Finance Director is hereby authorized and directed to prepare a check in the amount of $49,000 to Southland Paving, Incorporated, following the acceptance of this agreement to be forwarded to said firm at 361 North Hale Avenue, Escondido, California, 92025. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 6th day of June I 1989 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson NOES: None ABSENT: None ATTEST: lLtAzkL4RA ALETHA L. RAUTENKRANZ, Cityklerk (SEAL) RELEASE AND SATISFACTION KNOW ALL MEN BY THESE PRESENTS: That for an in consideration of the sum of forty nine thousand dollars ($49,000) receipt of which is hereby acknowledge, the undersigned, SOUTHL2UJD PAVING, INC., does hereby acknowledge full satisfaction and payment of each and every claim and/or demand of whatever kind or nature that now exists or may hereafter accrue on behalf of the undersigned against the CITY OF CARLSBAD, its agents and servants, or any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, charged with responsibility for or liable directly, indirectly or vicariously for damages and injuries to the undersigned, alleged to have arisen or resulted from an incident, casualty or event which arose out of Contract No. 3230 entitled ''Elm Avenue Improvements East of El Camino Real, in the City of Carlsbad, County of San Diego, State of California, and for which said damages the undersigned claims that said CITY OF CARLSBAD, its agents and servants, at said time and place, are legally liable in damages, which said legal liability and damages are disputed and denied. The undersigned do hereby release and discharge said CITY OF CARLSBAD, its agents and servants, and any other person or person, firm, corporation, association, partnership or entity acting on its behalf, of and from each and every claim and/or demand of whatsoever kind or nature, arising or to arise in favor of the undersigned, including all claims for damage to property, attorney's fee, loss of earnings, loss of services, or special c .. damage of any character, by reason of or growing out of the aforesaid incident, casualty or event. AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT AND PAYMENT, IT IS EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and final settlement shall never be treated as an admission of liability or responsibility at any time or in any manner whatsoever on the part of the parties herein released. 2. This release is expressly intended to cover and include all claims and attorney's fees, several or otherwise, past, present or future, which can or may ever be asserted by heirs, or otherwise, including all causes of action therefor, as the result of the aforesaid accident, casualty or event, or the effects or consequences thereof. 3. The undersigned understands and agrees that this is a full and final release and that this release covers and includes all claims and attorneyls fees of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claims under Section 1542, Civil Code of California, are hereby expressly waived. The undersigned understands said Section 1542 provides : *lA general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 4. The undersigned will indemnify and save harmless said CITY OF CARLSBAD and persons above named, its agents, and servants, and any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and from any and every claim and/or demand of every kind or character, including all causes of action therefor, which can or may ever be asserted by reason of injury to the undersigned as the result of the aforesaid accident, casualty or event or as a result of this settlement. 5. The undersigned shall be considered to have agreed to all the terms of this release and that the above-mentioned sum is the entire and only consideration for this release. 6. This release shall bind and be binding upon the heirs, executors, administrators and assigns of the undersigned. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS FORM: It is unlawful to: a. Present or cause to be presented, false or fraudulent claim for the payment of a loss under a contract of insurance. b. Prepare, make or subscribe any writing, with intent to present or use the same or to allow it to be presented or used in support of any such claim. Every person who violates any provision of this section is punishable by imprisonment in state prison or by fine not exceeding one thousand dollars ($1,000) or both. The undersigned does hereby authorize and direct that payment of said sum be made by check or draft payable to the undersigned. t IN WITNESS WHEREGE, the undersigned does hereunto set his hand and seal this / day of "6-7 1989. STATE OF CALIFORNIA 1 COUNTY OF SAN DIEGO 1 ) :ss On this 1st day of May , 19 89 before me, the undersigned notary public in and for the above county and state, residing therein, duly commissioned and sworn, personally appeared Richard .T. F1~r.k , personally known to me, or provided to me on the basis of satisfactory evidence, to be the same person(s) described in and whose name is subscribed to this instrument, and acknowledged to me that he/slie/they executed the same. STATE OF CALIFORNIA I represent plaintiff in this litigation and I have read the foregoing "Release and Satisfactiong1 and have recommended that my client execute the same. .-. 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 Office of the City Clerk TELEPHONE (61 9) 434-2808 June 8, 1989 Marks and Golia, Attorneys at Law 8555 Aero Drive, Suite 208 San Diego, CA 92123 Attn: Robert J. Marks Re: Settlement Agreement with Southland Paving, Inc. - Improvements to Elm Avenue and El Camino Real - Project No. 3230 The Carlsbad City Council, at its meeting of June 6, 1989, approved a settlement agreement with Southland Paving, Inc., regarding improvements to Elm Avenue and El Camino Real. Enclosed for your records is a copy of Resolution No. 89-176 which approved the agreement. Also enclosed is a copy of the settlement agreement. $4$& eputy ity Clerk Encs . RELEASE AND SATISFACTION KNOW ALL MEN BY THESE PRESENTS: That for an in consideration of the sum of forty nine thousand dollars ($49,000) receipt of which is hereby acknowledge, the undersigned, SOUTHLAND PAVING, INC., does hereby acknowledge full satisfaction and payment of each and every claim and/or demand of whatever kind or nature that now exists or may hereafter accrue on behalf of the undersigned against the CITY OF CARLSBAD, its agents and servants, or any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, charged with responsibility for or liable directly, indirectly or vicariously for damages and injuries to the undersigned, alleged to have arisen or resulted from an incident, casualty or event which arose out of Contract No. 3230 entitled "Elm Avenue Improvements East of El Camino Real, in the City of Carlsbad, County of San Diego, State of California, and for which said damages the undersigned claims that said CITY OF CARLSBAD, its agents and servants, at said time and place, are legally liable in damages, which said legal liability and damages are disputed and denied. The undersigned do hereby release and discharge said CITY OF CARLSBAD, its agents and servants, and any other person or person, firm, corporation, association, partnership or entity acting on its behalf, of and from each and every claim and/or demand of whatsoever kind or nature, arising or to arise in favor of the undersigned, including all claims for damage to property, attorney's fee, loss of earnings, loss of services, or special damage of any character, by reason of or growing out of the aforesaid incident, casualty or event. AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT AND PAYMENT, IT I8 EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and final settlement shall never be treated as an admission of liability or responsibility at any time or in any manner whatsoever on the part of the parties herein released. 2. This release is expressly intended to cover and include all claims and attorney's fees, several or otherwise, past, present or future, which can or may ever be asserted by heirs, or otherwise, including all causes of action therefor, as the result of the aforesaid accident, casualty or event, or the effects or consequences thereof. 3. The undersigned understands and agrees that this is a full and final release and that this release covers and includes all claims and attorney's fees of every kind or nature, past, present or future, known or unknown, suspected or unsuspected, and all claims under Section 1542, Civil Code of California, are hereby expressly waived. The undersigned understands said Section 1542 provides : "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. I' 4. The undersigned will indemnify and save harmless said CITY OF CARLSBAD and persons above named, its agents, and servants, and c I. any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and from any and every claim and/or demand of every kind or character, including all causes of action therefor, which can or may ever be asserted by reason of injury to the undersigned as the result of the aforesaid accident, casualty or event or as a result of this settlement. 5. The undersigned shall be considered to have agreed to all the terms of this release and that the above-mentioned sum is the entire and only consideration for this release. 6. This release shall bind and be binding upon the heirs, executors, administrators and assigns of the undersigned. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR ON THIS FORM: It is unlawful to: a. Present or cause to be presented, false or fraudulent claim for the payment of a loss under a contract of insurance. b. Prepare, make or subscribe any writing, with intent to present or use the same or to allow it to be presented or used in support of any such claim. Every person who violates any provision of this section is punishable by imprisonment in state prison or by fine not exceeding one thousand dollars ($1,000) or both. The undersigned does hereby authorize and direct that payment of said sum be made by check or draft payable to the undersigned. .. IN WITNESS WHEREGF, the undersigned does hereunto set his hand and seal this ,/ day of STATE OF CALIFORNIA COUNTY OF SAN DIEGO ) :ss 1 On this 1st ,ay of Mav , 9 89 before me, the undersigned notary public in and- for the above county and state, residing therein, duly commissioned and sworn, personally appeared , personally known to me, or provided to me on the basis of satisfactory evidence, to be the same person(s) described in and whose name is subscribed to this instrument, and acknowledged to me that he/sKp/they executed-the same. -- STAT~ OF CALIFORNIA"' I represent plaintiff in this litigation and I have read the foregoing "Release and Satisfaction" and have recommended that my client execute the same. .,,* ;. .: . , : I