Project 129 - Release - Paulus Engineering - 2010-04-05 FINAL CLOSEOUT AGREEMENT AND
RELEASE OF ALL CLAIMS
1 This AGREEMENT AND RELEASE OF ALL CLAIMS is made in Costa
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Mesa, California, this 7 day of GO I 2010 by and between COSTA MESA
SANITARY DISTRICT, hereinafter referred to as 'DISTRICT and PAULUS
ENGINEERING, INC., a corporation, hereinafter referred to as 'CONTRACTOR, with
reference to the following facts:
Recitals
WHEREAS CONTRACTOR and DISTRICT have entered into a contract for the
replacement of a gravity sewer line described as CMSD #129 — Bristol Street Sewer
Replacement for Autoplex to Birch Street (hereinafter 'Said Contract") which was
awarded after competitive bidding to CONTRACTOR; and
WHEREAS, CONTRACTOR began performing Said Contract but encountered a
water pipeline that was closer to the sewer main than records indicated that made the
job impossible/impractical to complete at that time without extraordinary measures; and
WHEREAS the job was approximately two-thirds complete at that point, but the
work was required to be terminated so that new plans could be prepared and new
competitive bidding procedures to follow for the completion of the job that addressed
protection of the water line and
WHEREAS CONTRACTOR had certain extra costs involved in completing two-
thirds of the job, and the parties thereafter negotiated certain change order payments
relating to the same, and
WHEREAS settlement of the dispute on change order work was contingent upon
the Orange County Development Agency (OCDA) approving such additional payment;
and
WHEREAS the parties hereto do hereby desire to set forth their AGREEMENT
AND mutual RELEASE OF ALL CLAIMS
NOW THEREFORE, the parties hereto AGREE as follows:
1 Original Contract. The parties agree that all terms and conditions of Said
Contract, as the same was terminated upon discovery of the nearby waterline, have
been performed and all compensation due has been paid except as provided
hereinafter
2. Contract Price and Change Orders. The contract price for the work was
$775,048.00 As a result of the termination of the work upon discovery of the nearby
waterline, the job was approximately two-thirds complete. Although CONTRACTOR
was, therefore, only entitled to approximately two-thirds of the contract sum,
CONTRACTOR was caused certain extra work and money damages due to the early
termination and demolization, and CONTRACTOR had other change orders that were
approved for extra work on an individual item basis. The parties do hereby desire to
resolve all claims for labor materials or work on CMS #129 including, but not limited to
extra work, expense attorney's fees, overhead bonding, profit, costs and any other
monetary damage or compensation of any kind as follows:
Stipulated Total Contract Sum — $720 000.00
3 Remaining Work. The parties agree that the following work remains to be
done.
None
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
Said Contract amount ($36 000), 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 Said 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 6--14s day of PTY, ( , 2010 at Costa Mesa, California,
COSTA MESA SANITARY DISTRICT PAULUS ENGINEERING INC
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President /7 Signature / /
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87;714—PAUL-US
Secretary Typed Name
I
Title
APPROVED AS TO FORM:
District Counsel