The URL can be used to link to this page

Home My WebLink AboutC-7682-2 - Settlement AgreementSETTLEMENT AGREEMENT BY AND BETWEEN CITY OF NEWPORT BEACH AND WESTERN CONSTRUCTION SPECIALISTS INC. This Settlement Agreement ("Agreement") is made and entered into as of this 27th day of January, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Western Construction Specialists Inc., a California corporation ("Contractor"), whose address is 1077 E. Pacific Coast Highway #247, Seal Beach, California, and is made with reference to the following. City and Contractor are sometimes collectively referred to herein as "Parties," and sometimes individually referred to herein as "Party." RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. On October 24, 2019, the City Clerk opened and read bids in response to an a Notice Inviting Bids for work described as the Concrete Replacement Program Project No. 20R06 ("Project"). C. The City received a total of ten bids for the Project, including Contractor's bid which included a bid bond in the principal sum of ten percent (10%) of the amount of Contractor's bid ("Bid Bond"). D. On November 19, 2019, the City Council reviewed the bids, and awarded Contractor a contract for the Project in the amount of Seven Hundred Forty One Thousand Three Hundred Dollars and No Cents ($741,300.00). E. On December 19, 2019, Contractor informed City that Contractor would be unable to complete the Project according to the required schedule due to a scheduling conflict ("Repudiation"). F. On January 9, 2020, City informed Contractor that City intended to file a claim against the Bid Bond. G. On January 16, 2020, Contractor offered to pay City, in lieu of the City filing a claim against the Bid Bond, the difference between Contractor's bid and the next lowest responsible bid. H. The Parties now desire to fully and finally settle and resolve all claims as between them in order to avoid the time, expense, and uncertainty of litigation, subject to the terms and conditions set forth herein. NOW THEREFORE it is mutually agreed by and between the undersigned parties as follows: 1 1 SETTLEMENT PAYMENT. Contractor shall pay the City the sum of Twenty Two Thousand Two Hundred Dollars and No Cents ($22,200.00) (the "Settlement Payment"), within ten (10) days after the Effective Date of this Agreement. The Settlement Payment shall be in the form of a check addressed to the City of Newport Beach and shall be in one lump sum. 2 BREACH; RIGHTS AND REMEDIES. The rights and remedies of the Parties are cumulative and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. Contractor acknowledges that, in the event Contractor fails to timely pay the Settlement Payment as set forth in this Agreement, such failure shall constitute a material breach of this Agreement entitling the City to all available remedies at law or in equity, including but not limited to, filing a claim against the Bid Bond. 3 WAIVER AND RELEASE. Provided that City receives the Settlement Payment as set forth in this Agreement, both Parties hereby irrevocably and unconditionally release and discharge the other Party and any and all of the other Party's current or former elected officials, officers, executives, directors, agents, employees, volunteers, representatives, attorneys, and all persons acting by or through them from any and all liability for claims, demands, causes of action, damages, judgments, costs or expenses, compensation, consideration, remuneration, benefits, including but not limited to attorneys' fees and costs, of any nature whatsoever, whether in law or in equity, known or unknown, suspected or unsuspected, actual or potential, anticipated or not anticipated cause by, stemming from, arising out of, or related to the Repudiation ("Claims"). Further, the Parties expressly waive any and all rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code, 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. 4 NOTICES. All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed as follows: If to City: Attn: Director of Public Works City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92658 4 If to Contractor: Attn: Brenda Stewart Western Construction Specialists Inc. 1170 Pacific Coast Hwy #247 Seal Beach, CA 90740 5 STANDARD PROVISIONS. 5.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 5.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 5.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 5.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 5.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 5.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 5.7 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 5.8 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 3 5.9 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 5.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 5.11 Voluntary. Each Party acknowledges that it has entered into this Agreement voluntarily, on the basis of its own judgment and without coercion, with the opportunity to consult legal counsel of its choosing, and not in reliance on any promises, representations or statements other than those contained in this Agreement. Each Party acknowledges that it has read this Agreement, understands it, and is fully aware of its contents and legal effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed on the day and year first written above. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: of -,25-2o By: jj A Ai %,� ron C. Harp City Attorney titer ATTEST: Date: kz A��./�� j/.�dlLeilani 1. BrownCity Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: a- I off-' o10 1-b By: Grac Leung Cit nager CONTRACTOR:WESTERN CONSTRUCTION SPECIALISTS, INC., a California corporation Signed in Counterpart By: Brenda Stewart President Signed in Counterpart By: Josh Stewart Secretary [END OF SIGNATURES] IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: Date: By: By: Aaron C. Harp Grace K. Leung City Attorney City Manager ATTEST: CONTRACTOR: WESTERN Date: CONSTRUCTION SPECIALISTS, INC., a California corporation Date: By: By: ld ejt "Z't-- Leilani I. Brown Brenda Stewart City Clerk President Date: 1 , (dD ByCh Josh Stewart Secretary [END OF SIGNATURES] 5