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HomeMy WebLinkAboutAgr 2004-03-26 (Transworld, Inc.) SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement") is entered into as of March 26, 2004 by and between the town of Tiburon ("Owner"), and Transworld Construction, Inc. a California corporation ("Contractor"). Owner and Contractor may from time to time be referred to individually as a "Party" and collectively as the "Parties" to this Agreement. RECITALS A) In June 1998, the Town awarded to Contractor a contract ("Project Contract") to perform general contractor construction services for the construction of the Tiburon Police Station at 1505 Tiburon Boulevard, Tiburon, CA 94920 (the "Project"). B) The Project Contract mandated that the Contractor complete the project within 300 days of issuance of a notice to proceed ("Contract Completion Date"). The Project Contract also provided that the Contractor would pay five hundred dollars ($500) in liquidated damages for each day that the project remain incomplete after the Contract Completion Date. C) The project was substantially completed approximately 165 days after the Contract Completion Date. Further, after the Project achieved substantial completion, there remained a number of "Punch List" items, consisting of work that was not complete or had not been completed as specified in the Project Contract. D) The Town asserts that the Contractor is responsible for the completion delay and for resolving the issues on the Punch List and therefore has withheld contract payments totaling one hundred eight thousand, two hundred ninety-three dollars and forty-eight cents ($108,293.48) as liquidated damages and retention. The Contractor disputes both that it is responsible for said delays and that it is liable for liquidated damages; Contractor claims that the Town is responsible for costs associated with the delay, which the Town denies. E) The Parties have reached a settlement of the disputes arising from the Project Contract, in which the Town agrees to waive one-half of the Town's liquidated damages claim Contractor owes for liquidated damages and the Contractor agrees to credit the Town in the sum for $2,185.80 for the unresolved Punch List items. NOW, THEREFORE, for and in consideration of the Recitals, the mutual covenants and releases set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the Parties, the Parties agree as follows: Page 1 of5 rw~@~~W~rn1 Ul] MAR 2 9 2004 ~ TOWN ATTORNEYIS OFFICE TOWN OF TIBURON j} fJ" (Q)lR1n~DlM~[b AGREEMENT 1. Settlement Amount. Upon execution of this Agreement, Owner shall pay to Contractor the amount of Sixty-Four Thousand Eight Hundred, Fifty-Seven Dollars and Sixty-Eight Cents ($64,857.68) of the withheld funds, to be paid in full within twenty-one (21) days after execution of this Agreement. Contractor waives any claim to the remaining amount of Forty-Three Thousand Four Hundred and Thirty-Five Dollars and Eighty Cents ($43,435.80), which shall be retained by Owner. 2. Mutual Release. Each Party, on behalf of itself and its council members, officers, directors, agents, employees, affiliates, parent companies, insurers, lenders, sureties, attorneys, successors, and assigns, past or present, hereby fully and forever releases and discharges the other Party and their respective council members, officers, directors, agents, employees, affiliates, parent companies, insurers, lenders, sureties, attorneys, successors, and assigns, past or present from, and waives any right to proceed against the other Party, for any and all damages, costs, expenses, claims, liabilities, and demands (including without limitation reasonable attorneys' fees) at law or in equity, whether known or unknown, suspected or contingent, arising out of the Project and/or Project Contract, including without limitation, all claims for liquidated damages, delay damages, breach of contract, payment for labor, services, and materials on or with respect to the Proj ect, and/or any claim to a mechanic's lien whether or not recorded against the Property. Without limiting the foregoing, each Party hereby knowingly and specifically waive the provisions of Section 1542 of the California Civil Code which 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 MA TERIALL Y AFFECTED HIS SETTLEMENT WITH THE DEBTOR." Each Party specifically acknowledge that they have carefully reviewed this subsection and have had an opportunity to discuss its import with legal counsel, that they are fully aware of its consequences, and that the provisions of this subsection are a ~aterial part of this Agreement. 3. Dismissal of Actions. In the event any actions are pending between the Parties, each Party shall, immediately upon distribution of funds as specified in paragraph 1 above, shall dismiss with prejudice any legal actions filed against the other Party regarding the Project or the Project Contract. 4. No Admission of Liability. Each Party agrees and acknowledges that this Agreement is a compromise of disputed issues and that the presentation of this Agreement for signature is an offer of compromise. Neither the presentation of this Agreement for signature nor any of the terms contained in this Agreement is intended to be, and shall not be deemed, construed, or Page 2 of5 p ~ treated in any respect, as an admission of liability on any matter by any Party or any other person or entity for any purpose whatsoever. 5. Commencement of Other Actions. Each of the Parties hereto agrees that it shall not bring, commence, institute, maintain, or prosecute or allow any person, entity, or organization to bring, commence, institute, maintain, or prosecute in their name, any action at law or in equity or any legal proceeding whatsoever against each other which is based in whole or in part on the Project or the Project Contract or the Action, other than an action to enforce this Agreement or based on an alleged breach thereof. This Agreement may be pleaded as a full and complete defense to, and may be used as a basis for injunctive relief against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of this Agreement. 6. Superseding Effect. This Agreement supersedes all prior negotiations and understandings of any kind with respect to the subject matter hereof and contains all of the terms and provisions of the agreement between the Parties with respect to the subject matter hereof. 7. No Outside Agreements. There are no oral understandings, statements, or stipulations bearing upon the effect of this Agreement that have not been incorporated herein. All prior negotiations or representations are merged herein or replaced hereby. This Agreement shall not be amended, supplemented, or abrogated other than by a duly executed written instrument between the Parties. 8. Binding Effect. This Agreement shall inure to the benefit of the Parties and to their respective representatives, successors, assigns, affiliates, parent companies, directors, officers, partners, employees, agents, insurers, and attorneys. 9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall not be effective until the execution and delivery between each of the Parties of at least one set of counterparts. The Parties authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Anyone of such completely executed counterparts shall be sufficient proof of this Agreement. 10. Severability. Any provisions or portion thereof of this Agreement prohibited by, unlawful, or unenforceable under any applicable law of any jurisdiction shall as to such jurisdiction be ineffective without affecting other provisions of this Agreement. If the provisions of such applicable law may be waived, they are hereby waived to the end that this Agreement may be deemed to be a valid and binding agreement enforceable in accordance with its terms. If any provisions or portion thereof of this Agreement are prohibited by, unlawful, or unenforceable under any applicable law and are therefore stricken or deemed waived, the remainder of this Agreement shall be interpreted to achieve the goals or intent of the stricken or waived provisions or portions thereof to the extent such interpretation is consistent with applicable law. 11. No Assignment. Each of the Parties hereto represents to the other Parties hereto that it has not assigned to any other persons or entities any of its claims, demands, or causes of action herein settled and released and that it is fully entitled to enter in this Agreement. Page 3 of5 ? !. ~- 12. Independent Counsel; Integration. Each of the Parties hereto acknowledges that it has had the opportunity to consult with independent legal counsel throughout the negotiation which resulted in the execution of this Agreement. Each of the Parties further acknowledges that (a) it has been fully advised by its attorneys with respect to its rights and obligations under this Agreement and it understands those rights and obligations, and (b) it has voluntarily entered into this Agreement and in executing this Agreement is not relying on any statement, representation, or promise made to it except as set forth herein. This instrument contains the entire agreement between the Parties to this Agreement, and all previous understandings, agreements, and representations prior to the date hereof, whether express or implied, oral or written, relating to the subject matter of this Agreement, are fully and completely extinguished and superseded by this Agreement. This Agreement shall not be altered, amended, modified, or otherwise changed except by a writing duly signed by all Parties hereto. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 13. Attorneys' Fees. If either Party commences an action or proceeding against the other Party arising out of or in connection with this Agreement, including an administrative action with a federal, state, or local agency, or institutes any proceeding in a bankruptcy or similar court which has jurisdiction over the other Party, or any or all of its property or assets, the prevailing Party in such action or proceeding and in any appeal in connection therewith shall be entitled to have and recover from the unsuccessful Party actual attorneys' fees paid or incurred in good faith, court costs, expenses (including without limitation experts' fees) and other costs of investigation and preparation. If such prevailing Party recovers a judgment in any such action, proceeding, or appeal, such actual attorney's fees paid or incurred in good faith, court costs, and expenses (including without limitation experts' fees) shall be included in and as a party of such judgment. "Prevailing party" within the meaning of this Section includes, without limitation, a Party who agrees to dismiss an action or proceeding on the other Party's payment of the sums allegedly due or performance of the covenants allegedly breached, or who obtains substantially the relief sought by it. 14. Applicable Law and Venue. The laws of the State of California shall govern the construction and application of this Agreement. The courts of the State of California shall be the exclusive forum for resolving disputes under this agreements. 15. Parties to Bear Own Fees and Costs. The Parties shall bear their own attorneys' fees and costs, including all fees and costs incurred in connection with the Action and the negotiation and preparation of this Agreement. . / / / / / / / / / Page 4 of5 f ~:J; IN WITNESS WHEREOF, the Parties have each caused their duly authorized officer for and on their behalf to execute and deliver this Agreement as of the date first set forth above. Owner: Town of By Approved as to Form: By ./~I/~ Ann R. Danforth, Town Attorney Contractor: Transworld Construction, Inc. Byd~ Geomen Liu, President y~~~ APpro~~ ~ - ~'~r Erik J. Liu, Esq., Attorney for Transworld Construction, Inc. Page 5 of 5