The URL can be used to link to this page

Home My WebLink AboutC-3879 - Settlement Agreement and Release (due to the delayed delivery of fire trucks)SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is entered into as of August 2006, by and between the City of Newport Beach ( "City ") and Los Angeles Truck Centers, LLC, dba American LaFrance of Los Angeles ( "ALF ") with reference to the following definitions and recitals. RECITALS A. On December 16, 2004, the City issued a Purchase Order ( "Purchase Order ") in the amount of One Million Twenty-Eight Thousand Seventy-Six Dollars and Ninety -Five Cents ($1,028,076.95) for the purchase of three (3) new 2005 ALF Custom Fire Truck Pumpers ( "Fire Trucks "). A copy of the Purchase Order is attached hereto as Exhibit "A" and incorporated herein by this reference. B. Based on the Purchase Order, ALF agreed to deliver the Fire Trucks within three hundred (300) days after issuance of the Purchase Order (i.e. October 12, 2005). ALF also agreed that if the Fire Trucks were not delivered within three hundred (300) days, ALF would pay damages of Two Hundred and Fifty Dollars and No Cents ($250.00) per day, per unit, for delivery beyond three hundred (300) days. ALF also agreed that if the Fire Trucks were not delivered within three hundred and thirty (330) days, ALF would pay damages in the amount of Five Hundred Dollars and No Cents ($500.00) per day, per unit for delivery beyond three hundred and thirty (330) days. C. At ALF's request, on October 26, 2005, the City granted ALF a forty -five (45) day extension, extending the time for delivery of the Fire Trucks to and including November 26, 2005. On May 5, 2006, ALF delivered two of the Fire Trucks and the third Fire Truck was delivered on May 11, 2006. D. Based on the Purchase Order, the City contends that the total amount of damages due and owing the City is Two Hundred Twenty Thousand Five Hundred Dollars and No Cents ($220,500.00) ( "Claimed Amount "). This total amount was determined by adding the following sub totals: (1) thirty (30) days [i.e. November 26, 2005 through December 26, 2005] multiplied times three (3) Fire Trucks multiplied times Two Hundred Fifty Dollars and No Cents ($250.00) for a subtotal amount of Twenty-Two Thousand Five Hundred Dollars and No Cents ($22,500.00); (2) one hundred and thirty (130) days [i.e. December 27, 2005 through May 5, 2006] multiplied times three (3) Fire Trucks multiplied times Five Hundred Dollars and No Cents ($500.00) for a subtotal amount of One Hundred Ninety -Five Thousand Dollars and No Cents ($195,000.00); and (3) six (6) days [i.e. May 5, 2006 through May 11, 2006] multiplied times one (1) Fire Truck multiplied times Five Hundred Dollars and No Cents ($500.00) for a subtotal amount of Three Thousand Dollars and No Cents ($3,000.00). E. ALF denies that the City is due the Claimed Amount ( "Dispute"). The parties hereto understand and agree that the Dispute arose out of and relates to the Purchase Order. The parties hereto desire to resolve all of the issues raised in the Dispute to finally, fully and comprehensively settle the Dispute, so as to allow the 0 0 parties hereto to continue their pursuits having fully, finally, comprehensively and conclusively resolved the Dispute, as between these settling parties. AGREEMENT In consideration of the covenants herein contained, and for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows, in full and complete settlement of the Dispute. ALF and City agree that the City is currently retaining the Claimed Amount. ALF agrees that the City shall be entitled to retain Seventy Five Thousand Dollars and No Cents ($75,000.00) of the Claimed Amount as damages for the late delivery of the Fire Trucks. Within ten (10) business days of the execution of this settlement agreement by all parties, the City shall release and pay ALF the remainder of the Claimed Amount which is One Hundred and Forty -Five Thousand Five Hundred Dollars and No Cents ($145,500.00). 2. Each party hereto acknowledges and agrees that this is a compromise settlement of the hereinabove mentioned Dispute, which is not in any respect to be deemed, construed or treated as an admission or a concession of any liability whatsoever by any party hereto, including any public entity, person, firm, partnership, or corporation for any purpose whatsoever. 3. The parties hereto agree that they have made such investigation of the facts pertaining to this Agreement and all matters pertaining hereto as he has determined necessary. This Agreement is intended to be final and binding among the parties hereto, regardless of any claims or misrepresentations, promises made without the intention of performing them, mistakes of fact or law, or any other circumstances whatsoever, and under no circumstances shall any party be entitled to set aside this Agreement, either in whole or in part. In entering into this Agreement, each party assumes the risk of any misrepresentation, concealment or mistake, whether or not any party should subsequently discover or assert for any reason that any fact relied upon by such a party in entering into these releases was untrue, or that any fact was concealed from any party hereto, or that such party's understanding of the facts or of the law was incorrect or incomplete. 4. ALF, for itself and all of its predecessors, successors, assigns, representatives, attorneys or agents, does hereby fully and forever release and discharge City its predecessors, successors, assigns, elected officials, officers, representatives, attorneys, agents, and employees of and from any and all actions, claims, demands, rights, damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever, which ALF has or may hereafter accrue, including without limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury, relating to, or in any way, directly or indirectly, involving or arising out of any facts or circumstances related to the Dispute and/or Purchase Order. 5. It is the intention and understanding of ALF, in executing this instrument, that it shall be effective as a full and final accord and satisfaction and compromise and 2 0 0 release, of each and every settled or released matter. In furtherance of this intention, ALF acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California which provides as follows: "A general release does not extend to claims which the creditor does not know or suspects 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. " ALF hereby expressly waives and relinquishes any right or benefit which it has, or might have, under Section 1542 of the Civil Code of the State of California and all other similar provisions of law of other jurisdictions to the fullest extent allowed by law. In connection with such compromise, waiver and relinquishment, ALF acknowledges that it is aware that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to the subject matter of this instrument, but that, except as is otherwise provided herein, it is its intention hereby to fully, finally and forever settle and release all matters, disputes and differences, known or unknown, suspected or unsuspected, which do now exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release actually given herein shall be and remain in effect as a full and complete general release, notwithstanding the discovery or existence of any such additional or different facts. 6. This Agreement shall be governed and interpreted in accordance with the laws of the State of California. Each party hereto agrees that the laws of the State of California shall apply and that any action brought hereunder shall be subject to the laws and statutes of the State of California. The parties hereto expressly agree that any disputes, disagreements or actions shall be venued with the Superior Court of Orange County, State of California. 7. This Agreement contains the entire understanding and agreement between the parties hereto, and the terms and conditions contained herein shall inure to the benefit of, and be binding upon, the heirs, representatives, successors and assigns of each of the parties hereto. No other representations, covenants, undertakings, or other prior or contemporaneous agreements, oral or written, respecting such matters, which are not specifically incorporated herein, shall be deemed in any way to exist or bind any of the parties hereto. The parties hereto acknowledge that this Agreement has been executed without reliance upon any such promise, representation, or warranty not contained herein. 8. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all of the parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision whether or not similar, nor shall waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the parties making the waiver. 3 0 0 9. This Agreement and the covenants and conditions contained herein shall obligate, bind, extend to and inure to the benefit of the parties in each of their respective successors in interest, including, but not limited to, their administrators, executors, owners, partners, officers, directors, shareholders, legal representatives, assignees, attorneys, successors, and agents or employees of the parties hereto. 10. This Agreement shall not be construed against the party preparing it, but shall be construed as if all parties hereto jointly prepared this Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. 11. Except as provided herein, all attorneys' fees, and costs incurred through the date of this Agreement shall be borne by the respective parties hereto and each party agrees to waive any claim, or claims, against any of the other parties for the reimbursement of all, or any portion of said fees or costs. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall not be entitled to recover attorneys' fees. 12. If any provision, clause, or part of the Agreement is adjudged illegal, invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. [SIGNATURES ON FOLLOWING PAGE] M I have carefully read and fully understand, and hereby execute, this Agreement. ALF LOS ANGELES TRUCK CENTERS, LLC, DBA AMERICAN LAFRANCE OF LOS ANGELES jB;. Name: 3040 Q Title: 5c -2\) C6 Mew --- I have carefully read and fully understand, and hereby execute, this Agreement. THE CITY OF NEWPORT BEACH, a Charter City By: —�aa DON B, MAYOR CITY OF NEWPORT BEACH APPROVED AS TO FORM: By: _ Z4 AARON C. HARP, ASSISTANT CITY ATTORNEY CITY OF NEWPORT BEACH ATTEST By:CWA,,,- 122- LAVONNE HARKLESS, CITY CLERK CITY OF NEWPORT BEACH 5 0 s�n0 CITY OF NEWPORT BEACH 3300 NEWPORT BOULEVARD 0 PO BOX 1768 `7S NEWPORT BEACH, CA 92658.8915 `.w. PURCHASING: (949)644 -3065 c'ctEOaN`r ACCTS. PAYABLE: (949)6443117 V 2570 N AMERICAN LAFRANCE OF LOS ANGELES D A DIV.OF LOS ANGELES FREIGHTLINER Q 13800 VALLEY BOULEVARD R LFONTANA CA 92335 0 PURCHASEORDER NO.: r' 2626_ Pape N; INVOICE II1 DUPLICATE I Trritirtkrr!!(ni tr mlur pptu/ars chin o¢ •• .J•rp�ing norfces 617is of tlAlq .sprisa nttlpi,4 Ue<1rry uat?S.tf46R:y1 Wdc wlfTj/fpt„ F i2 • 7 HI CITY OF NEWPORT BEACH 1 EQUIPMENT MAINTENANCE, BLDG D P 592 SUPERIOR AVENUE TO J NEWPORT BEACH, CA 92663 I ATTN: TOM FULTON ORDER DATE: 12/16/04 BUYER: BILL WEST, CPPB REQ. NO.: 0 REQ. DATE: TERMS, NET 30 DAYS F.O.B.: DESTINATION DESC.: 3 -FIRE TRUCK PUMPERS ITEAa QUANTITY UOM DESCRIPTION UNIT PRICE EKTENS40N ACCn Jdnat am HOlmeS [ p a# z a P MOS '� P>.ovlc�e T1iXec (3Y =nGvr }[nosed '2005,1$ 't3tnce -,, i �z{ CvstQm Fizz Trvdk'PumFSers •der C]G to ous •� :. letter °QarE;d December 3' 2004 and, the d [ E�a�;r� �[ .�t�,,dTts dat�dAUECfie 6r 2it9CPt,`t1x� i II (..e r�+�.rF:S z28'39Sin?s�'45SC;PUET'4a PreS. rx xj'i+} na i �"U r , x'eas 3r iP$irie3 h3�sootu t , q e� ` y' d i t ,.. L �4m0zxan La>"zkrtce° ws II- Fad damage s, et--.unit or.-- e x9k?r}%bey.9nc --30174d8ps _ u attce v" a yiuFhRrt $rde Ent ANN i�8`3 p t �. a � 8Qx de�2ve�raKEq,1�$IoHa}d9' 33b,uidX•�T��,eis �; .� > ! E t 'I' dsa]d P x B0 Oif -. Pa 1rtr [ ••da ,' + r }�Q� d�14 4 r a trc _ 'B.SA i{SFr x e s i T �t s p t 0 3 003�iy�� a :FnE 'L`RYfCP. fP]y �( t �.. #0 k P114.1, pA SX�A zn I`NK'S I 3 [LL ( , SA Iv E Ts'Y I!c£ sA >LJ:nTacYE�.['�1� 3 17aO,rLi _._ H ITEM9 ACCOUNT AMDMT PROJECT CODE PAGETOTAL 9 1,028,076.95 01 6120 9100 1,028,076.9 TOTAL 5 1,028,076.95 n. fi.m..0t ar<epr.nca of Y:a oar eYN .4,,r.,Rww.[Mrowlaae.rvmr a eon rwe..,Vm.mYnmwn of By burn. a cMlp [pl l'.eraLLlOa,. BY +s.[1mp ; r Wr..`. Y of lhoi �tarpwi NOtl W4NMS[ea0a'.1'>f,Ya burn. ur.91 mt �rcbaky �naN pmm� o: ne:rvuY Y. W 4FM Cpn,eeupu¢aN.Omv_ iM Yvv 1rPAt am pTy OF NEW PORT SEAG� cprUiuon. NFI wJ M.pyn[EY ro (na Inlvpu[.wn U Nu CuntNq i. •JNY J[uW EY ins CHY of RawCGt 9YCn. IMPORTANT GENERAL TERMS AND CONDITIONS ON THE REVERSE SIDE ARE INCORPORATED HEREIN. The Mkb pp+Nap OY 0b Facnm O,d.r or Cxt. :t mwf caMarm 1. app(uW. C -OSHA $YEpalOa. anWa. ;I. app,pnlaY St.'. e[Cu JVnn. Snow ea.F91aY.lem am• Nlaa Y +11.,. •Ao ux m F. *tor to spoor .TMtot4w auger to: iform. faitshot. MOUTOFVATLVMa 01M M CITY wJp+Y erry aYONrY YY ptl tl pu,vl.W a,.L' pM Nam eu[<pmY, Ely Wa6 aM Y1n[ppr[arlpn ClNrpY aN ..FM111'. It Cthw N[I. h.. YDTF: NI yJK,IafY W F.O B. dw.ui W r4l MN W an null. V.. ChtoW 1.1 yypmanta Vt IG Go hap,r�1p�0 -4.00M 1. ills •rVUre 4Mwn Y a YplrsN .a'nl wt ve to Nvo.,ow CC .,m MOUE. FpN4 h.poo.v. 1Y. A lv, wy 4aN DYVIIW fpnN maV Ea'F94FO tp eOrWYtt OYYn InlMch, Purchasing Copy EXHIBIT A