Project 168 - Final Closeout Agreement - Vadnais - 2010-10-26 FINAL CLOSEOUT AGREEMENT AND
RELEASE OF ALL CLAIMS
1 This AGREEMENT AND RELEASE OF ALL CLAIMS is made in Costa
Mesa, California, this ,244, day of , 2010 by and between COSTA
MESA SANITARY DISTRICT hereinafter referred to as 'DISTRICT and VADNAIS
CORPORATION, a corporation, hereinafter referred to as 'CONTRACTOR, with
reference to the following facts:
Recitals
WHEREAS District and Contractor entered into a contract for the construction of
the Irvine Pumping Station (Project No 168); and
WHEREAS in the course of that construction damage occurred to certain real
property resulting in litigation by the owners (Back Bay Center LTD v Costa Mesa
Sanitary District, County of Orange and Vadnais Corporation, OCSC 00117360); and
WHEREAS because of that litigation District retained certain monies that would
have otherwise might have been due Contractor and
WHEREAS that litigation was resolved and through insurance a settlement was
reached for One Million Dollars (attached hereto); and
WHEREAS District and Contractor do now desire to resolve all outstanding
issues not resolved by the settlement agreement and to pay any retention monies due;
NOW THEREFORE, the parties hereto AGREE as follows:
1 Original Contract. The parties agree that all terms and conditions of said
Contract have been performed and all compensation due has been paid except as
provided hereunder
2. Change Orders/Liquidated Damages. The parties agree that any
adjustments in price or in the time for performance and any liquidated damages to be
assessed against the CONRACTOR are as follows:
Five (5) Change Orders totaling $63,234.38
The only remaining warranty work after the settlement described above fixed the slope
of the Back Bay property was work on the pump station itself and its doors. Those fixes
now are complete.
3. Remaining Work. The only remaining warranty work after the settlement
described above fixed the slope of the Back Bay property was work on the pump station
itself and its doors. Those fixes now are complete.
None.
Now that the settlement has been concluded District will pay amounts retained.
4 Notice of Completion/Payment of Retention. The parties agree that a
Notice of Completion will be filed and that the retention amount, consisting of 5% of the
contract amount, shall be released to CONTRACTOR 35 days after recording if no
outstanding stop notices, DLSE liens or similar deductions exist.
5 Stop Notices/DLSE Withholds. The parties acknowledge that the following
stop notices (or suits to enforce such stop notices), DLSE withhold orders, District
deductions for administering stop notices and related matters have been withheld from
the job:
None
6. Warranty Nothing herein excuses the CONTRACTOR from honoring its
one-year warranty of the work performed under this Contract. The terms of this
AGREEMENT shall not excuse the responsibility of the CONTRACTOR to guarantee
all work for a period of one (1) year from the date of acceptance of all improvements
by the DISTRICT CONTRACTOR shall repair and replace any and all improvements
damaged or failed, ordinary wear and tear and extraordinary abuse or neglect
excepted.
7 Release and Indemnification. It is understood and agreed by the
undersigned that the facts with response to which the foregoing RELEASE is given
may hereafter turn out to be other than or different from the facts now known to be or
believed by said undersigned to be true and the undersigned hereto expressly
assume the risk of the facts turning out to be different than they now so appear and
agree that the foregoing RELEASE shall be in all respects, effective and not subject
to termination or rescission by any such difference in facts. The undersigned hereby
expressly waive any and all rights the undersigned have or may have under California
Civil Code Section 1542, which provides 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
It is understood and agreed that this settlement is a compromise of doubtful and
disputed claims and that the release made by the CONTRACTOR and DISTRICT
herein are not to be construed as an admission or admissions of liability on the part of
either party and that the parties deny liability thereof and intend merely to avoid
litigation and to buy their peace The undersigned agree that they will forever refrain
and forebear from commencing, instituting or prosecuting any lawsuit, action or other
proceeding against the other party based on, arising out of or in any way connected
with the subject matter of this AGREEMENT
The CONTRACTOR hereby releases and agrees to indemnify the DISTRICT
for all claims, including those of its subcontractors, for any and all delay and impact
costs.
8 No Assignment. The CONTRACTOR represents and warrants to the
DISTRICT that the CONTRACTOR has not heretofore assigned or transferred or
purported to assign or transfer to any person, firm, corporation, association or entity
any of the rights, claims, warranties, demands, debts, obligations, liabilities, actions,
damages, costs, expenses and other claims whatsoever and the CONTRACTOR
agrees to indemnify and hold harmless the DISTRICT against, without limitation, any
and all rights, claims, warranties, demands, debts, obligations, liabilities, actions,
damages, costs, expenses and other claims, including attorneys' fees, arising out of or
connected with any such assignment or transfer or purported assignment or transfer
9 Binding on Successors. This AGREEMENT and the releases contained
herein shall be binding on each of the parties heirs, successors and assigns.
10 Representation. The undersigned acknowledge that they have been
represented by counsel of their own choice in connection with the preparation and
execution of this mutual AGREEMENT The undersigned acknowledge and represent
that they have read this mutual RELEASE OF ALL CLAIMS in full and understand and
voluntarily consent and agree to each and every provision contained herein.
11 Integration. The undersigned further declare and represent that no
promise, inducement or agreement, not herein expressed, have been made to the
undersigned and that this AGREEMENT contains the entire agreement among the
parties hereto and that the terms of this AGREEMENT are contractual and not a mere
recital.
12. Authority The persons executing this RELEASE OF ALL CLAIMS
represent and warrant to the other party that the execution and performance of the
terms of this AGREEMENT have been duly authorized by all requisite corporate,
partnership, individual, or other entity requirements and that said persons have the
right, power legal capacity and authority to execute and enter into this AGREEMENT
Executed this .14f day of (4t.ZZ " , 2010, at Costa Mesa, California.
COSTA MESA SANITARY DISTRICT VADNAIS CORPORATION
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GENERAL MANGER BY J&'FF [ 3/4 «
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ATTEST
DI TRICT CLERK
APPROV D AS TO FORM:
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District Counsel