HomeMy WebLinkAboutAgreement A-18-415 with Wood Bros. Inc..pdf Agreement No. 18-415
i
1 SETTLEMENT AGREEMENT AND MUTUAL RELEASE
2 This Settlement Agreement and Mutual Release ("Agreement") is entered into this 7t
3 day of August, by and between the County of Fresno ("County") and Wood Bros., Inc. ("WBI")
i
4
sometimes referenced herein collectively as"the Parties,"with reference to the following facts.
5
RECITALS
6 j
WHEREAS, on April 25, 2017, the Board of Supervisors awarded Contract No. 16-22
7
SW, forth at certain public works project involving excavation and construction of the liner systerr
8 �
for American Avenue Disposal Site ("AADS") Modules 7 and 8 ("the Project'), to WBI as prim
i
10 contractor on the Project; and i
S
11 WHEREAS, the specifications and contract documents for the Project ("Contract
12 Documents") provided for a 140-day contract construction period; and 4
13 WHEREAS, the Contract Documents provided for assessment of liquidated damages of
14 $5,000 per day for each day by which the completion date exceeds the contract construction
15
period; and
16
WHEREAS,the original 140-day contract construction period was extended, by Contract
17
Change Order Nos. 1 through 3, by a total of 43 days (through February 26, 2018), due to
18
19 inclement weatherdelays and unexpectedly high quantities of unsuitable materials found during
i
20 excavation of the modules; and
21 WHEREAS, as a result of the foregoing extensions, the assessment of liquidated
22 damages did not commence until February 27, 2018;
23 WHEREAS, on or about April 5, 2018, a dispute arose between the Parties regarding
24 issues relating to the Project, Including both the scope of work remaining to be completed by WBI 1
25 under the Contract Documents and the assessment of liquidated damages thereunder; and
26
27
28 l
i
I WHEREAS, as of April 5, 2018, the Project had not been accepted by the County Engineer
2 as complete, and the ongoing liquidated damages assessment had reached $185,000 (37 days
3 at $5,000 per day); and
4
WHEREAS, in an effort to expedite completion of the Project, the County's Department of
5
Public Works and Planning ('Department') issued a change order("CCO No, 4,"dated April 16,
6
2018) to suspend the accumulation of liquidated damages for a"window period" of 30 days,from
7
8 April 5, 2018 through May 4, 2018;
g WHEREAS, CCO No. 4 provided that, if the County Engineer accepted the Project as
10 complete within the 30-day window period, then no additional liquidated damages would be
1 t assessed for any portion of that 30-day period; however, if the Project were not accepted by the i
i
12 County Engineer within the 30-day window period, theta assessment of liquidated damages
i
13 would be reinstituted as of May 5, 2018 and would continue to accumulate from and after that
14 date;and
15 WHEREAS, CCO No. 4 further provided by its express terms that suspension of the
16
accumulation of liquidated damages during that 30-day window period was not intended to release, i
17
waive, reduce or in any way affect the County's priorassessment of liquidated damages, accumulated
18
between the period of February 27, 2018 through April 4,2018 in the amount of$185,000(37 days
19
20 at $5,000 per day), an issue as to which each of the Parties reserved their respective rights as
21 expressly stated therein; and
22 WHEREAS,the Project was accepted by the County Engineer as completewithin the 30-
23 day window period, on May 2, 2018; and
24 WHEREAS,the Parties now desire to resolve all outstanding disputes between them relating
25 to the Project, in accordance with the terms and conditions hereinafter set forth.
26
27
I/
28 2
i
r
i
t NOW THEREFORE, it Is agreed between the Parties hereto as follows: '
2 1. Assessment and Withholding of liquidated Damages �
3 t
WBI shall pay the sum of$100,000 in liquidated damages,which amount shall be withheld by
t
4
the County from the final payment due to WBI pursuant to the Contract Documents. The County's
5 claim of entitlement to liquidated damages in excess of said amount of$100,000 is hereby expressly
6
waived, For purposes of clarification,the County by execution of this Agreement is waiving$85,000
7
$ of the$185,000 in liquidated damages that had accrued as of April 5,2018,as well as any amount of l
9
liquidated damages that would have accrued thereafter in the absence of CCO No.4.
10 2. Exceptions to Applicability of Mutual Releases Provided for Herein
11 The mutual releases herein provided for in Paragraphs 3 and 4 below expressly do not apply
12 with respect to either of the following:
13 A. The County's obligation to make the final payment to WBI in accordance with the Contract j
14 Documents and this Agreement,consisting of all previouslywithheld retentions,and excluding
15 therefrom liquidated damages withheld by the County in the amount of $100,000, In
16
accordance with the foregoing);and i
17
18 B. The rights and obligations of the respective Parties under the Guaranty of workmanship and
19
materials executed by WBI on March 8,2017,which by its terms shall remain in effect through
i
20 and including May 2, 2019, which Is twelve(12) months after the date on which the Project '
21 was accepted by the County as complete.
22 3. Mutual Release of Claims
23 Subject to the express exception of the respective rights and obligations of the Parties that are
24 specified in Paragraph 2 above, each of the Parties hereby releases the other Party hereto and its
25 agents, employees, attorneys, sureties, affiliates, successors, heirs and assigns, from any and
26
all other claims, debts, costs, obligations, promises, acts, agreements, actions and causes of
27
28 3
4
I
I
s
3
I action, demands, damages, counterclaims, set offs, or liabilities (including attorneys' fees and E
2 costs), relating to the Project.
l
3 +
4. Waiver of General Release '
4 l
5 Subject to the express exception of the respective rights and obligations of the Partiesthat are
specified in Paragraph 2 above, each of the Parties hereto, on its own behalf and on behalf of its j
6 1
respective agents, employees, attorneys, sureties, affiliates, successors, heirs and assigns, i
7
hereby expressly waives any and all rights it may have against the other Party hereto under
8
California Civil Code Section 1542, arising from the Contract Documents or otherwise relating to
9
the Project. Section 1542 of the Civil Code of the State of California provides as follows:
10
1 1 A general release does not extend to claims which the creditor does not know or
12
suspect to exist in his favor at the time of executing the release, which if known
13
by him must have materially affected his settlement with the debtor.
14
15
16 Each of the Parties hereby waives and relinquishes all rights and benefits it has or may have
17 against the other Party hereto under Section 1542 of the California Civil Code, to the fullest
18 extent that it may lawfully waive such rights and benefits, as to the matters released herein.
19
5. No Third Party Beneficiaries
20
21 The Parties hereby acknowledge and agree that no other person, firm, corporation, or
22 entity shall be deemed an intended third-party beneficiary of this Agreement. In addition, and
23 notwithstanding anything else to the contrary herein,WBI hereby expressly reserves its rights to
24 pursue legal action against one or more of its subcontractors on the Project for contribution or
25 reimbursement in connection with WBI's liability to the County for liquidated damages In the
26 agreed upon amount of$100,000, as provided for herein.
27
28 4
i
I
s
i
1
6. Amendment
2 Subject to applicable law, this Agreement may be amended, modified or supplemented
3 i
only by a written agreement signed by the Parties.
i
4
7. Governing Law !
5 This Agreement shall be governed by, and interpreted in accordance with, the laws of the
6 State of California.
7
S. Severability
g If any term of this Agreement is invalid, illegal or incapable of being enforced by virtue of
9 any rule of law or public policy, all other conditions and provisions of this Agreement shall
10 nevertheless remain in full force and effect.
II 9. Counterparts
12 This Agreement may be executed in multiple counterparts, each of which shall be
13
deemed an original and all of which together shall be deemed one and the same document.
14
15
16
17
11
1s
19
20
21 //
22 //
23 //
24 //
25
26
27
23 5
i
{
I
t
I
i
I IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement and
2
Mutual Release as of the date first set forth above,
3
4 COUNTY OF FRESNO WQO RCS., INC J`
5
6 By: B
7 Sal ?ulnt roke
a person of the Board of Do -Id Wood, SecretarySup rs County of Fresno (Authorized Signature) I
8
i
I
9
1� AP SAVED AS TO LEGAL FORM APPROVED AS TO LEGAL FORM
1 t r Griswold, LaSalle, Cobb, Dowd&Gin, LLP
� I
►2 Da
Daniel C. Ceder org, County ounsel BY:.
13 Michael R. ,Johnson �
IQ
15 ATTEST:
BERNICE E. SEIDEL
16 Clerk of the Board of Supervisors
County of Fresno,State of California
17
BY— &
is Deputy
19
20
21
22
23
24
25
26
27
28 6