HomeMy WebLinkAbout1990-12-18; City Council; 10950; Settlement0 ily, -A .- CIV OF CARLSBAD - AGENC-' BILL
LOU /d q& lTtTl E. SETTLEMENT OF LAWSUIT ENTITLED
CARLSBAD - N46495 I
IEPT. CA I
DEPT. HD.
CITY AllY
CITY MG
RECOMMENDED ACTION:
It is recommended that the City Council authorize settlement of this case by adopting Resolution No. Yd-#$and authorize the City Engineer to make payment of the settlement amount from the Carlsbad Boulevard project account.
ITEM EXPLANATION
The Carlsbad Boulevard construction project was accomplished under an agreement between the City and Caltrans and the grant regulations for federal highway projects. Differences of opinion about the interpretation of all of these local, state and federal regulations arose between the contractor, the City, Caltrans and the federal government. There were also extra work and other
claims totalling approximately $150,000. Although the project has been completed its problems resulted in litigation between the contractor, the City and Caltrans. All of these problems have now been resolved. We have been assured by Caltrans that the full amount of the federal grant funds budgeted for the project will be paid and that all of the outstanding disagreements among the parties will be resolved and the outstanding construction claim compromised for a payment to the contractor of an additional
$75,000. The City Manager and the City Engineer participated with our office in resolving the problems and join in our recommendation that the Council adopt Resolution No. % -+## approving the
settlement. Funds are available in the project construction account. If the Council concurs your action is to adopt Resolution No. yfl- SLg4
FISCAL IMPACT
There are sufficient funds in the Carlsbad Boulevard project account to cover the settlement.
EXHIBITS
Resolution No. @9-4&
Release and Satisfaction Agreement
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90-444 RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA AUTHORIZING THE
EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE
LAWSUIT ENTITLED WEST COAST GENERAL V. CITY OF CARLSBAD - CASE NO. N46495
WHEREAS, on recommendation of the City Attorney the
City Council of the City of Carlsbad, California has determined
that a settlement in the case entitled West Coast General v. Citi
of Carlsbad is in the public interest; and
WHEREAS, there are sufficient funds available in the
Carlsbad Boulevard project account to pay the settlement,
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
3. That the City Council approves the settlement and
authorizes disbursement of $75,000 from the Carlsbad Boulevard
project account for West Coast General v. Citv of Carlsbad.
3. That the Mayor is authorized to sign the Release
Agreement which is hereby approved.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
the City Council of the City of Carlsbad on the 18th day
of December , 1990, by the following vote, to wit:
AYES: Council Members Lewis, Larson, Stanton and Nygaard
NOES: None
ABSENT: Council
ATTEST:
A&% .A u ALETHA L. 'RAUTENKRANZ, City Flerk
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT (hereinafter
@@AGREEMENT@*) is made by and among WEST COAST GENERAL CORPORATION
(hereinafter WEST COAST@@) ; the CITY OF CARLSBAD (hereinafter
@@CITY@@) and the STATE OF CALIFORNIA, the BUSINESS, HOUSING and TRANSPORTATION AGENCY and CALIFORNIA DEPARTMENT OF TRANSPORTATION (hereinafter cumulatively referred to as the @@STATE*@). Said participants to this AGREEMENT may at times be referred to cumulatively as @@PARTIES@*. This AGREEMENT is made with reference
to the following:
RECITALS
A. On or about November 21, 1978, the CITY and STATE entered into Local Agency-State Agreement for Federal Aid-Projects No. 11-5308 (hereinafter "Master Agreement*@) .
B. Pursuant to said Master Agreement, on or about January
12, 1989, the CITY and STATE entered into Program Supplement No. 014 (hereinafter @@Program Supplement@@) . Said Program Supplement provided that subject to the terms and conditions of the Master Agreement, the CITY would receive approximately $1,747,125.00 of federal participating funds toward the improvement and widening
of Carlsbad Boulevard from .25 miles south of Tamarack Avenue to
Cannon Road (hereinafter the @@Project*@) .
C. On or about January 2, 1989, the CITY released its Notice
Inviting Bids on the Project and made available sets of plans,
special provisions and contract documents (hereinafter @'The
Contract@*) to all interested parties. Said Contract included conditions conforming with all State Statutes, regulations and procedures (including those set forth in the State Local Programs Manual) relating to the Federal-Aid Program and all applicable Federal laws, regulations, policy, procedural and instructional memoranda.
D. On or about March 1, 1989, bids were opened. WEST COAST
submitted the low bid on the Project in the total of
$2,107,278.74. On or about April 3, 1989, the CITY and WEST
COAST formally entered into a public works contract for
construction of the Project.
E. Construction of the Project began on or about April 3,
1989. Thereafter, progress payments were made by the CITY to WEST COAST. The CITY, pursuant to the Master Agreement and
Program Supplement, submitted invoices to the STATE for reimbursement.
..
F. By letter of August 22, 1989 and subsequent correspondence, the STATE advised that based upon what it interpreted as contract and regulatory violations, it would not recommend Federal participation of the Project to the Federal Highway Administration (FHWA) and refused to advance any highway
funds to the CITY. The issues raised by the STATE included: (1)
Whether WEST COAST performed with its own organization work
amounting to not less than fifty (50%) of the original total
contract price; (2) whether WEST COAST properly rented equipment
and operators from subcontractors ; ( 3) whether Proj ect
disadvantaged Business Enterprise (DBE) requirements were met;
(4) whether unapproved subcontractors were used and, (5) whether
certified payrolls were accurate. As a result of said issues raised by the STATE, the CITY did not file its Notice of Completion of the Project. Accordingly, WEST COAST did not receive its final ten percent (10%) retention payment.
G. WEST COAST denied and has continued to deny any violation
of contract terms. On or about February 21, 1990, WEST COAST filed a Complaint for Breach of Contract, in San Diego Superior Court, North County Branch, Case No. N46495, against the CITY. In addition to its claim for said retention, WEST COAST also claimed damages for additional costs and delays which are set forth in its claim dated January 3, 1990, and attached herein as Exhibit @IA" to this AGREEMENT and incorporated herein by reference. Further, WEST COAST has claimed other consequential
damages based upon the CITY'S withholding of all or a portion of
the retention.
H. On or about April 11, 1990, the CITY answered the
Complaint and filed a Cross-Complaint for Breach of Contract,
Misrepresentation, Negligence and Declaratory Relief against WEST
COAST and the STATE. WEST COAST and the STATE answered said
Cross-Complaint. Furthermore, WEST COAST filed a Cross-Complaint
against the STATE for Negligence, Tortious Inference with Contract, Indemnification and Declaratory Relief.
I. On or about July 31, 1990, the CITY reduced WEST COAST'S retention held by the CITY to five percent (5%).
J. Extensive discovery and negotiations have taken place by
and between the PARTIES. As a result, without any admissions of liability by any party and in order to resolve all differences, the PARTIES have agreed to mutually release each other from any and all claims relating to the Project on the terms and conditions as set forth below.
NOW THEREFORE, in consideration of the terms and conditions as set forth in this AGREEMENT, and for other good and valuable
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consideration which is hereby acknowledged, the PARTIES hereby
agree as follows:
1. Project Fundinq
(a) Project costs eligible for federal participation
pursuant to the Master Agreement and Program supplement amount to a total of approximately $2.018 million. Federal
participation would normally be at the ratio of 86.44 percent. As between the State and the City, the State agrees to formally recommend to the FHWA payment of 90 percent of said 86.44 percent participation amount. The STATE affirmatively represents that it has already consulted with the FHWA and that the FHWA has
agreed to accept such recommendation notwithstanding any concerns
regarding contract compliance. In the event, for any reason, the
FHWA declines to provide all or any part of such funds within the
time frames as set forth below, the STATE, as consideration for
this AGREEMENT, obligates itself to irrevocably make such payment
to the CITY notwithstanding any decision of the FHWA or any terms
or conditions of the Master Agreement or Program Supplement.
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(b) The STATE agrees that the CITY will receive said funds from the STATE within forty five (45) days of the STATE'S receipt of a properly prepared invoice from the CITY, approved by the District's Local Streets and Roads Engineer.
(c) The CITY agrees that in any future Federal highway
project initiated under the Master Agreement, the STATE may
require the CITY to provide outside contract administration and
supervision, acceptable to the STATE.
The STATE and CITY agree that no finding has been made or will be made by either party on the questions of contract compliance or Project supervision. The 10% reduction in FHWA payment participation is deemed to be made in resolution of any disputes regarding contract compliance or Project supervision.
(d)
(e) The STATE agrees that it will not at any time in the
future again audit. or otherwise review this Project for contract
compliance, Project supervision or any other question of
compliance with the Master Agreement, Program Supplement or
regulations and procedures (including those set forth in the
State Local Programs Manual); except that it is understood that
the STATE and FHWA reserve the right to perform a financial audit
to ascertain the costs actually incurred by the CITY. The STATE agrees that any such questions of compliance are resolved in
their entirety by this AGREEMENT. The STATE also acknowledges
that it has fully apprised the FHWA of this AGREEMENT and the compromises which have taken place and that the FHWA is satisfied with the AGREEMENT and such compromises.
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(f) The CITY agrees that it will not publish or in any
manner disseminate the nature of this AGREEMENT with the
exception of any disclosure requirements under any Public Records
Act or other relevant statute or ordinance. The STATE agrees that the circumstances relating to this Project will not in any manner prejudice any future rights of the CITY to apply for or receive funding of eligible Projects.
2. Settlement With West Coast
(a) The CITY agrees to release to WEST COAST the remaining
five percent (5%) retention, without interest, of The Contract
amount. As additional consideration, the CITY will pay to WEST
COAST seventy-five thousand dollars ($75,000.00) as full and
complete payment of any and all additional claims relating to
this Project, including, but not limited to, any accrued interest, any and all extra work claims (including, but not limited to those set forth as Exhibit "A1@), any and all claims of consequential damages relating to un-released retention or any other conduct in this matter and any attorneys fees and costs.
(b) The CITY will deliver the retention amount to WEST COAST
no later than November 30, 1990. The CITY will also attempt to
pay the additional $75,000.00 by November 30, 1990. If the
$75,000.00 is not received by WEST COAST by November 30, 1990,
it will bear interest at the rate earned by the CITY. The CITY
will use its best efforts to pay WEST COAST the $75,000.00 as soon as possible, but in no event will full payment be delayed past December 21, 1990.
(c) The CITY and WEST COAST fully release each other as set
forth in paragraph three (3) below.
3. General Release of Known and Unknown Claims.
(a) Notwithstanding the provisions of Section 1542 of the
California Civil Code, excepting the covenants, agreements,
stipulations and provisions contained in this AGREEMENT, the
parties hereto mutually release any and all claims, causes of
action, rights, obligations, debts, liabilities, accounts, liens,
damages (whether general, special consequential, punitive or
otherwise), losses and expenses of any kind and nature
whatsoever, whether known or unknown, foreseen or unforeseen,
patent or latent, suspected or unsuspected, contingent or unliquidated, which any party previously had, currently has or may have, arising from, relating to the Project or in any matters set forth in the aforementioned recitals and civil complaint and cross-complaints. This release is not to be construed to include
any issues that may arise relating to WEST COAST'S warranty
obligation under its contract with the CITY or any non-
contractual liability.
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(b) The PARTIES hereto acknowledge that they each have been
informed of the provisions of Section 1542 of the Civil Code of the State of California and do hereby expressly waive and
relinquish all rights and benefits that they have or may have had
under said Section, which reads as follows:
"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.
(c) The PARTIES hereto understand and acknowledge the significance and consequences of said specific waiver of Section
1542, and hereby assume full responsibility for any injuries,
damages or losses that they may incur as a result of the
execution of this AGREEMENT.
4. Dismissal of Causes of Action.
Upon full payment of the sums set forth in this AGREEMENT,
the parties hereto will forthwith cause their attorneys of record to execute and file in the Superior Court a "Request for DismissallV with prejudice of the entire actions referenced above as to all PARTIES.
5. Subsecruent Discovery and Different or Additional Facts,
Mistake of Fact of Law.
(a) The PARTIES hereto acknowledge that they are aware that
they may hereafter discover facts different from or in addition
to those they now know or believe to be true with respect to the
claims, causes of action, rights, obligations, debts,
liabilities, accounts, liens, damages, losses and expenses herein
released, and each agrees that the within release shall be and
remain in effect in. all respects as a complete and general
release as to all matters released herein, notwithstanding any
such different or additional facts.
(b) In entering and making this AGREEMENT, the PARTIES hereto assume the risk of any mistake of fact or of law in that
if any party should subsequently discover that any fact relied
upon by such party in entering into this AGREEMENT is not true,
incorrect, such party shall not be entitled to set aside this AGREEMENT, or any portion thereof, by reason thereof. This AGREEMENT is intended to be final and binding upon all PARTIES hereto regardless of any mistake of law or of fact or any other
circumstance whatsoever.
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6. covenant Not to Sue.
The PARTIES hereto each agree that each will not make, assert or maintain against any other party released in this AGREEMENT any claim, demand, action, suit or proceeding arising out of any matters released herein. This AGREEMENT may be pleaded as a full and complete defense to, and may be used as a basis for
an injunction against any action, suit or other proceeding which
may be prosecuted, instituted or attempted by or on behalf of any party hereto in breach of this AGREEMENT. The PARTIES hereto each agree to defend, indemnify and hold one another harmless against any claim, demand, right, damage, debt, liability, account, action, cause of action, cost or expense, including attorneys' fees actually paid or incurred, arising out of any such claim, demand, action, suit or proceeding asserted in connection with this AGREEMENT or the matters respectively released herein.
7. Confidentiality.
The PARTIES agree that the contents of this AGREEMENT will remain confidential and will not be published or otherwise
disseminated to third parties, except as may be required by law pursuant to any public disclosure requests.
8. Warranties.
(a) Each party hereto represents and warrants to the other
that they have not heretofore assigned, hypothecated or
transferred or purported to assign, hypothecate or transfer, in
whole or in part, to any person, firm entity, or corporation any
claim, demand, right, damage, liability, debt, account, cause of
action, or any other matter herein released or discharged, and
that they respectively have the full right and authority to enter
into this AGREEMENT. The parties hereto agree to indemnify and hold one another harmless against any claim, demand, right, damage, debt, liability, account, action, cause of action, cost or expense, including attorneys' fees actually paid or incurred,
arising out of or in connection with any such transfer or
assignment or any such purported or claimed transfer or
assignment in violation of this representation and warranty.
(b) Each party hereto represents and warrants to the other
that they have the power, authority and ability to carry out the obligations assumed and promised hereunder, and is not presently
aware of any pending event which would, or could, hamper, hinder, delay, or prevent the timely performance of said obligations.
9. Denial of &i ability.
The giving of the consideration specified herein affects the settlement of the matters released herein. Neither the giving
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or said consideration nor anything contained herein shall be
construed as an admission by any party to this AGREEMENT or their
heirs, assigns, successors, representatives, agents, officers,
directors or shareholders, of the validity of the claims of any
other party to this AGREEMENT. The parties hereto specifically disclaim any liability or responsibility to each other.
10. Bindinu Effect.
The AGREEMENT, and all covenants and releases set forth herein, shall be binding upon and shall inure to the benefit of the respective parties hereto, their legal successors, heirs, assigns, partners, representatives, executors, administrators, agents, attorneys, officers, directors and shareholders.
11. Choice of Law and Venue.
This AGREEMENT is executed and intended to be performed in the State of California and the laws of the State of California shall govern its interpretation and effect. The parties agree that all legal proceedings regarding this AGREEMENT shall only be instituted in the U.S. District Court, Southern District of
California or the courts of the State of California for San Diego County, San Diego Judicial District.
12. Leual Emenses.
In the event any party to this AGREEMENT commences any legal proceeding concerning any aspect of this AGREEMENT, including but
not limited to, the interpretation or enforcement of any of its provisions or based on an alleged dispute, breach, default, or misrepresentation in connection with any aspect or provision of
this AGREEMENT, the prevailing party shall be entitled to recover
reasonable attorneys' fees and all other cost and expenses
incurred in connection with the action or proceeding, fees and
collection expenses, whether or not such action proceeds to
judgment. The "prevailing party" means the party determined by
the court to have most nearly prevailed, even if such party did
not prevail in all matters, not necessarily the one in whose
favor a judgment is rendered. If the court fails or refuses to
make a determination of the prevailing party, the party who is
awarded costs of suit shall also be deemed to be the prevailing
party for purposes of awarding attorneys' fees.
13. Severabil ity.
Should any portion or clause of this AGREEMENT be found to
be invalid, illegal, void, voidable or unenforceable for any
reason whatsoever, this AGREEMENT shall be read as if it did not
contain said portion or clause. The PARTIES hereto intend for
any such invalid portion or clause to be severable from the
remainder. Any such clause or portion and its severance shall
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not affect the validity or effect of the remaining provisions of this AGREEMENT.
14. Countemarts.
This AGREEMENT may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original and such counterparts shall together constitute one and the same
AGREEMENT.
15. Section Headinus.
The captions, subject, section and paragraph headings in this AGREEMENT are included for convenience and reference only. They do not form any party hereof, and do not in any way modify, interpret, or reflect the intent of the PARTIES. Said headings
shall not be used to construe or interpret any provision of this AGREEMENT
16. Riuht to Consult with Attornev, Terms Understood.
The PARTIES hereto acknowledge that each has read this AGREEMENT; that each fully understands his rights, privileges and duties under said AGREEMENT: and that each enters into said
AGREEMENT freely and voluntarily. Each party further acknowledges that each has had the opportunity to consult with
an attorney of his choice to explain the terms of this AGREEMENT
and the consequences of signing it.
17. Reliance on Own Judument, No ReDreSentatiVeS.
The parties hereby declare and represent that the full
compensation for the damage sustained in connection with the aforementioned losses and claims is uncertain and indefinite, and that in making this AGREEMENT it is understood and agreed that the PARTIES have not been influenced to any extent whatsoever in making this release by any representation or statement regarding said damages, or regarding any other matter, made by the person, persons or entities hereby released, or by any person or persons
representing them.
18. Entire Au reement.
The undersigned each acknowledge and represent that no promise, representation, or inducement not contained in this AGREEMENT, or any exhibit hereto, has been made to them and that
this AGREEMENT, together with any exhibits hereto, contains the entire understanding among the PARTIES and contains all terms and conditions pertaining to the within compromise and settlement of the disputes referenced herein. No express or implied warranties, covenants or representations have been made concerning the subject matter of this AGREEMENT unless expressly
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stated herein. Any prior written or oral negotiations not contained in this AGREEMENT are of no force or effect whatsoever. In executing this AGREEMENT, the PARTIES have not and do not rely on any statements, inducements, promises or representations made
by the other party or their agents, representatives, or attorneys with regard to the subject matter, basis, or effect of this AGREEMENT, except those specifically set forth in this AGREEMENT. The undersigned further acknowledge that the terms of this
AGREEMENT are contractual and not mere recitals.
19. Modifications.
No change in, addition to, or erasure of a printed portion
of this AGREEMENT (except the filling in of specific blank spaces
and lines) shall be valid or binding upon any party hereto and
no verbal agreement of any nature relating to the subject matter of this AGREEMENT or to any relationship between the PARTIES will be considered valid or enforceable. This AGREEMENT may not be superseded, modified or amended orally and no modification, waiver or amendment shall be valid unless in writing and signed
by the party against whom the same is sought to be enforced.
20. No Presumption auainst Draftinu Party.
This AGREEMENT and the provisions contained herein shall not be construed or interpreted for or against any party hereto because said party drafted or caused the party's legal representative to draft any of these provisions. This AGREEMENT shall be construed without reference to the identity of the party or PARTIES preparing the same, it being expressly understood and agreed that the PARTIES hereto participated equally or had equal opportunity to participate in the drafting thereof.
21. Parties in Interest.
Nothing in this AGREEMENT, whether express or implied, is
intended to confer any rights or remedies under or arising by
reason of their respective successors and permitted assignees.
Nothing in this AGREEMENT is intended to relieve or discharge the
obligation or liability of any third person to any party to this
AGREEMENT, nor shall any provision give any third person any
right of subrogation or action over or against any party to this
AGREEMENT .
22. Waiver.
The failure of any party to enforce any provisions of this AGREEMENT shall not be construed as a waiver of any such
provision, nor prevent such party thereafter from enforcing such
provision or any other provision of this AGREEMENT. The rights
and remedies granted all PARTIES herein are cumulative and the
election of one right or remedy shall not constitute a waiver of
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any others' right to assert all other legal remedies available under this AGREEMENT or otherwise provided by law.
23. Execution of Further Documents.
Each party agrees, upon the demand of the other, to execute or deliver any instrument, furnish any information, or perform
any other act reasonably necessary to carry out the provisions of this AGREEMENT without undue delay or expense. In the event any party fails or refuses to comply with this paragraph, such party shall reimburse the other party for any expenses, including attorneys' fees and court costs, that as a result of this failure become reasonably necessary to carry out this AGREEMENT, even if formal legal action is not commenced.
AGREEMENT on the day and year indicated below. IN WITNESS WHEREOF, the PARTIES hereto have executed this
DATED: BY:
DEPARTMENT OF TRANSPORTATION
DATED: /
DATED:
BY:
entative of the CITY OF CARLSBAD
CLAUDE A. LEWIS, Mayor
BY: DANA K. FERRELL, President of WEST COAST GENERAL CORPORATION
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any others' right to assert all other legal remedies available under this AGREEMENT or otherwise provided by law.
23. Execution of Further Documents.
Each party agrees, upon the demand of the other, to execute or deliver any instrument, furnish any information, or perform
any other act reasonably necessary to carry out the provisions
of this AGREEMENT without undue delay or expense. In the event any party fails or refuses to comply with this paragraph, such party shall reimburse the other party for any expenses, including attorneys' fees and court costs, that as a result of this failure become reasonably necessary to carry out this AGREEMENT, even if formal legal action is not commenced.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT on the day and year indicated below.
DATED: BY:
Authorized representative of
theSTATEOFCALIFORNIA, HOUSING
AND TRANSPORTATION AGENCY,
DEPARTMENT OF TRANSPORTATION
DATED: BY:
Authorized representative of
the CITY OF CARLSBAD
DATED: //-&9
DANA K. FERREm, President of
WEST COAST GENERAL
CORPORATION
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APPROVED AS TO FORM AND CONTENT:
/d./7 ,- A
FREDERICK E, ESQ., Attorney
F CALIFORNIA, STATE
HOUSING AND TRANSPORTATION AGENCY AND
~
DEPARTMENT OF TRANSPORTATION
DALEY & HEFT
6/+Q&.&- -
NEAL S. MEYERS
the CITY OF CARLSBAD
MARKS & GOLIA
ROBERT MARKS, ESQ., Attorney for
WEST COAST GENERAL CORPORATION
CITY OF CARLSBAD n
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APPROVED AS TO FORM AND CONTENT:
FREDERICK GRAEBE, ESQ., Attorney
for the STATE OF CALIFORNIA, STATE
HOUSING AND TRANSPORTATION AGENCY AND DEPARTMENT OF TRANSPORTATION
DALEY 61 HEFT
NEAL S. MEYERS, ESQ., Attorney for
the CITY OF CARLSBAD
MARKS t GOLIA
.7
ROBERT MARK@ ESQ . , Attorney for WEST COAST GENERAL CORPORATION
CITY OF CARLSBAD
VINCENT F. BIONDO, JR., City Attorney
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( .-
WEST COAST GENERAL CORPORATION
12243 Highway 67 Lakeside, California 92040
(619) 561-4200
January 3, 1990
U?. Lloyd Hubbs
Cf ty Engineer
2075 Las Pelmas Dri ve
Carlsbad, Cali forni a 92009
Re: Carlsbsd B1 vd. Iyprovements, # 3205
Dwr Eb-. Hubbs:
This letter constitutes Llest Coast General Corporation's claie pursuant to
Californfa Covermnt Code Section Sroo at see., for damages fncurred due
to the City of Carlsbad's breach of Contract. The following fnformetfon 1s
provf ded in accordance with Calf furni u Governrent Code Section 910:
Claimant: &€S COAST GENERAL CORPORATICM
12243 Hwy 67
Lakeside, CA 92040
(61 9) 561 -4200
Address to which Notices
should be sent: EST COAST GENERAL COUPORATIW
12243 Nwy 67
Lakeside, CA 92040
Deli vered to: Cf ty of Carlsbad
2075 Las Palaas Dri ve
Carlsbad, CA 92008
(619) 438-1 161
Occurrences giving rise to the claim asserted (All occurrences happened within OT as a result of constructing the iqprovemts of Carlsbed Boulevard, Project k. 3205, Carlsbad CA. 1:
1). As e result of the City of CarlSbsd'S revision to the Origfnd Traffic Control Plan of the contruct documtits (Issued 11 April
1989), the following rodiffcations &ere required and remafn uncoqensat ed:
A. The revised plan widened the lfrits of construction in Plase 1
from th-e of the original plan of the Ccmtract Documents.
ThfS expansfon required stockpiling approxiratslg C.Y. =Bf muterfal because the available ePbankrents in Phase I completed.
because existin& traffic was routed through the area according
to the Contract Plans;
The prop& fills in Phase I1 could not be -de
_- A
Pa6e 2 of 4 January 3, 1990 Att: L:
2).
3).
4).
5).
Hubbs
B. Addf ti mal traffic control and flagaen were required to pour the westerly =dim curb bile cperating the paving machine
end cement trucks in the Phase II northbound lane;
C. Instead of laying asphalt concrete at the westerly rredian curb
wfth a fdl width pess BS planned, It was required to muke a modiffed six foot wide pass, which thereby increased product i on costs.
Per the Ci ty of Carlsbad' s direct i ve of 24 Apri 1 1989, addi ti onel traffic control devices were required to apparently augrent the initial plan of the Contract Documents. These devfces were
supplied i n place, yet remi n uncoylrensa led.
The City of Carlsbad's delay in deciding the issues of 1). disposal of surplus raterial, and 2). nitfgation of the design errors associated with the actual location of the 12" ACP mterline halted
earthwork operations (the controlling operation during this phase of wrk) bet- 15 June 1989 and 10 July 1989. overhead unduly extended throughout this perf od, but persumel,
equipment, and mobilization costs were protracted also.
Not only ms
In tbe Pre-Construction hetdng of 30 March 1989, the City of Carlsbad epproved the use of 'black-out" paint in lieu of sandblasting to rewve existing striping during traffic detour opera ti ons. No di scussi on of a credi t to the, Ci tg MS df scussed, nor MS one requested. Yet on 11 Aqgust 1989 {tuo months after the
uwrk ms completed), the City initiated a unilateral Change Order
No. 9 &ich provided them wfth a credit that supposedly reflects
the cost difference bet= using paint vs. sandblasting.
In early August 1989, the Contractor notified the City that a
telephane pedestal location muld not receive the standard metal enclosure as depicted in the plans,
Pachll, that a ranhole must be placed in the siderwlk, Because the City Md Pack11 wuld not resolve iho should incur the cast;
and, more irqportantly, because the progress of the project again
ws significantly impacted by this fnde~iSfOII, the Contractor fmS
required to supply and install the manhole, yet ms not corlperPsated
for the changed condition.
The City concurred, as did
i
Page 3 of 4
J&wry
Att: L.
6).
7) *
8).
91.
10).
3, 1990
Hubbs
The plans of the Contract Documents indicate that the new roadmy
Vi11 match the grudes of the existing roadmy at approximately sta.
65+OU. After six meks of discussion as to dether the tm rmds
wuld transition samothly OF not, the City finally instructed the
Contractor to extend the rerovuls of the existing roadway. A cost
brealtdom was issued to the Cf ty for this mrk.
insisted the wrk be coqpleted (thfch it wad, but did not issue o
change order to compensate for the extra work.
Again, the City
Additional permanent traffic striping and sign- were required by
the City.
The City issued Change Order No. 18, but refused to include the
Contractors markup for overheed (15%).
The Contractor issued a cost breakdoun far the changes.
After many meetings betmen the Contractor md the City’s Project
Wanager, Inspect or, hi cf pal Project Munqger, and thei r Ci vi 1
En8ineer Consultants, regarding the quantfty (cubic yard) of
earthmr& performed, this group finally conctrred as to the number
of cubic yards moved and tho associated costs.
issued Change Order No. f2 &i ch ref1 scted the agreed upon
quantities and amounts. me Contractor, the City Snspector, the
Project Wanager, the hnfcipal Project #b”qer signed the Change
Order. In the followiq tn, weeks, the Project llanager re-issued
Change &der No. 12 which significantly reduced the quantities and
co6pensation originally agreed to by the eforauantioned group. mis actfoa was arbitrary and vithout explanation. end the
contractor remains uucoqpenseted for the balance of the agreed upon
quanti ties and arounts.
The City then
Per 7he City of Carlsbad dlrecti ve dated 5 Apri 1 1989,
the cast to recalculate survey control dsta for
aligMaaat Qcljugtmts to 30’ RCP storm drain Hent uncorrpensated.
NOW that the subject project is complete (including punchlist
itr), your refusal to subrit said project to the Cfty Councfl for
sccopJrace 16 a breach of our contract.
Coast Cbnorrl to 1- of interest on earned incoH (retention) CIS
-11 86 extending overhead costs.
Such action subjects Lhsf
Pursuant to Section 910, Cmtmts of Claims, of the Government Contract
Code, the requirements of said section are included herein.
The indebtedness, obligation, and lws incurred us of this date, and so far
as It my be know is such that jurisdiction over this clsim mld rest in
superior court. t.
-..
Pap 4 of 4
Att: L. nubbs
January 3, 1990
The names of the public eqloyees causing the loss are, to the best of our
knowledge, Lloyd Hubbs, Pat Entetari, John Cahill and Joe Federico.
If UB do not receive a response to this claim vlthin 4-5 days, pursuant to
California Government Code Section 912. 4, bs dl1 consider the claim denied
and proceed to litigation.
Si ncerely,
YEST COm G&NEh'AL CORPORATION
Dana K. Ferrell President
DKF/kb
cc: 0. C File
6. Ehrks
D. Davey