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Home My WebLink AboutAgreement A-15-081 with Harris Construction Co..pdf'• AGREEMENT NO . 15-081 SETTLEMENT AND RELEASE AGREEl\ffiNT This Settlement and Release Agreement (the "Agreement") shall be deemed entered into and effective as of January 27,2015 . PARTIES: County of Fresno ("Plaintiff" or "Assignee'}; Sunset Landscapes, Inc. and Harris Construction , Co., Inc. (collectively referred to as "Settling Defendants"). RECITALS: A. Plaintiff hired Kaplan McLaughlin Diaz ("KMD") to act as the architect for the Juvenile Justice Campus located in Fresno County, Fresno (hereinafter referred to as "Project'}. KMD contracted with Robert Boro who acted as the landscape architect on the Project. Kaweah Construction Co. ("Kaweah") acted as the general contractor for Bid Pac~age No . 3. Kaweah subcontracted with Amerine Systems, Inc. ("Amerine"), which provided the pump for the irrigation system and Modesto Industrial Electric provided the control panels for said pump. Plaintiff hired Harris Construction Co., Inc. ("Harris") to act as the general contractor for Bid Package #1 on the Project. Harris contracted with Sunset Landscapes, Inc. ("Sunset") for the installation of the irrigation system on the Project. B. The Project was substantially completed in or around April of 2006 and the irrigation system began to be used in or around May of 2006. C. In or around August of2007, Plaintiff contends that it began experiencing, on a consistent basis, various problems with the irrigation and control system resulting in significant damage to the irrigation system and also causing Project damage to Plaintiff. Plaintiff contends that the irrigation system was improperly designed and the substituted pump should not have been approved, thereby causing significant damages. In addition, Plaintiff contends that the irrigation pipes and fittings were improperly installed, utilizing the wrong methods and glue and that the programming of the controlling panels and the system was improper (hereafter the "Installation Dispute"). The Settling Defendants deny all allegations of any breach, fault or wrongdoing against them. D . Plaintiff filed a Complaint for damages against KMD, Robert Boro and Kaweah on July 21, 2009 (hereafter the "Action"). Thereafter, Kaweah filed a Cross-Complaint against Amerine and KMD and Robert Boro filed a Cross-Complaint against Kaweah, Industrial Electric, Amerine and Sunset Landscapes. Amerine subsequently filed a Cross-Complaint of its own, naming Sunset Landscapes, Modesto Industrial Electric and Harris Construction as cross- defendants. In April of2014, Plaintiff settled its claims with KMD, Boro, Kaweah, Amerine and Modesto Industrial Electric. As part of that settlement, Plaintiff was assigned the claims of KMD, Boro, and Amerine against Sunset and Harris. 29253-00170 3237887.1 E. Plaintiff and the Settling Defendants hereto desire to settle and resolve in their entirety Plaintiff's assigned claims against the Settling Defendants as well as any and all claims which are or could be asserted by Plaintiff against Settling Defendants which are in any way related to the Project and to reach a full and final settlement of the Released Claims as . , defined herem 1:-elow. This Agreement and release is also intended to apply as between claims of Settling Defendants among themselves . F. Plaintiff and Settling Defendants acknowledge that they are resolving the Installation Dispute in order to avoid the costs of litigation and that, by entering into and performing this agreement, neither Plaintiff nor Settling Defendants admit any liability nor do they opine on the validity or invalidity of the claims asserted in the Action or the Irrigation Dispute. G. It is the intent of the parties that this release shall apply to all Released Claims which are or may be asserted at this time by Plaintiff against Settling Defendants and/or by Settling Defendants against Plaintiff, as well as any of Plaintiff's or Settling Defendants' predecessors in interest, agents, employees, partners, shareholders, officers, directors , parents, affiliates, subsidiaries, attorneys, insurance carriers, firms, or associates. AGREEMENT: In consideration for the promises and performances herein described, the parties hereby agree as follows: 1. Settlement and Release Plaintiff, upon performance by Settling Defendants of the performance/consideration listed in Paragraph 2, below, hereby remises, releases, and forever discharges Settling Defendants (including all of Settling Defendants' past, present and future officers, shareholders, directors, partners, insurance carriers, agents, attorneys, accountants, employees, subcontractors, and materialmen, as well as the subsidiaries, affiliates, predecessor entities, and successor entities [and their officers, shareholders, directors, partners, insurance carriers, agents, attorneys, accountants, employees, subcontractors, and materialmen, as well as all successors, heirs, and assigns of each of the aforesaid]) from all past, present, and future claims, actions, causes of action of any nature and for all liabilities and obligations of every kind and character, which in any way directly or indirectly relate to or arise out of 1) Plaintiffs Complaint, and First Amended Complaint, entitled County of Fresno v Kaplan McLaughlin Diaz, Inc. et al., case number 09 CECG02581, filed with the Fresno County Superior Court, 2) the Cross Complaint entitled Amerine Systems Inc. v Modesto Industrial Electrical Co. Inc, et al., case number CV001884, filed with the Merced County Superior Court, and 3) the Cross Complaint entitled Kaplan McLaughlin Diaz, Inc., and Robert Boro v Kaweah Construction Co . et al., case numher CV001884, filed with the Merced County Superior Court. Similarly, the Settling Defendants, upon the performance identified in Paragraph 2, below, hereby remise, release, and forever discharge all other Settling Defendants and Plaintiff 29253..()()170 3237887 .1 2 (including all of Plaintiff's and Settling Defendants' past, present and future officers, shareholders, directors, partners, insurance carriers, agents, attorneys, accountants, employees, subcontractors, :md materialmen, as well as the subsidiaries, affiliates, predecessor entities, and successor entities [and their officers, shareholders, directors, partners, insurance carriers, agents, attorneys, accountants, employees, subcontractors, and materialmen, as well as all successors, heirs, and assigns of each of the aforesaid]) from past, present, and future claims, actions, causes of action of any nature and for all liabilities and obligations of every kind and character, which in any way directly or indirectly relate to or arise out of 1) Plaintiff's Complaint, and First Amended Complaint, entitled County of Fresno v Kaplan McLaughlin Diaz, Inc. et al., case number 09 CECG02581, filed with the Fresno County Superior Court, 2) the Cross Complaint entitled Amerine Systems Inc. v Modesto Industrial Electrical Co. Inc, et al., case number CVOO 1884, filed with the Merced County Superior Court, and 3) the Cross Complaint entitled Kaplan McLaughlin Diaz, Inc., and Robert Boro v Kaweah Construction Co. et al., case number CV001884, filed with the Merced County Superior Court. This is a full and final release of all unknown and unanticipated injuries, and damages, arising out of or related to the claims for which releases have been given, as well as any past, present, and future claims and Plaintiff and Settling Defendants hereby waive all rights or benefits which each of them now has or in the future may have pursuant to the claims for which releases have been given under the terms of Section 1542 of the Civil Code, which provides as follows: A general release does not extend to the claim which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 2. Consideration and Performance. (a) Sunset Landscapes shall cause to pay to Plaintiff the total sum of Two Hundred and Seventy Five Thousand Dollars ($275,000), within fifteen days (15) of the date of the Fresno County Board of Supervisors approving the Consent Agenda Item memorializing the Board's prior approval of this settlement in closed session, by a check or draft drawn payable to the County of Fresno, to be delivered to McCormick Barstow Sheppard Wayte & Carruth, LLP. (b) In further consideration of the payments set forth in Paragraph 2(a) above, Plaintiff shall cause to be filed a Request for Dismissal with prejudice of all claims, with each party bearing its own attorney's fees and costs within 15 days of receipt of the settlement funds. 3. Advice of Counsel. Plaintiff and the Settling Defendants have had the opportunity to consult with counsel relative to this Agreement and to have had the terms and conditions of same explained to them. To the extent Plaintiff and/or the Settling Defendants have elected or elect not to consult 29253..()()170 3237887. I 3 with counsel, they do so in a knowing, voluntary, and intelligent manner and elect to proceed nonetheless. 4. No Admission. This Agreement is a compromise of disputed claims and fully and finally settles all claims between Plaintiff and the Settling Defendants to the Action, and all claims between the Settling Defendants to the Action, and is intended to buy peace and prevent any further involvement in this dispute. Neither the payment of any consideration hereunder or anything contained in this Agreement shall be interpreted or construed to be an admission on the part of, nor to the prejudice of, any person or party named herein and each such person or party hereby expressly denies any and all liabilities associated with or relating to the litigation and claims described herein. 5. Final Settlement. (a) The parties understand and agree that this Agreement shall act as a full and final release of all claims, known or unknown, whether or not asserted, arising from the above-mentioned dispute, except those claims specifically rising from this Agreement. (b) Each party fully understands the facts in respect to which this Agreement is executed or found hereafter to be different from facts now believed by any party described herein to be true, and each party expressly accepts and assumes the risk of each possible difference in facts and agrees that this agreement shall remain effective, notwithstanding such differences. 6 . Modification Must Be In Writing. This Agreement may not be altered, amended or modified, except by writing executed by duly authorized representatives of all parties. 7. Entire Agreement. This Agreement states the entire agreement among the parties who have executed this Agreement and supersedes their prior agreements, negotiations or understandings. Each of these parties acknowledges and agrees that no other party, agent, or attorney of any of the parties made any promise, representation or warranty, express or implied, other than those set forth in this Agreement. Each party signing this Agreement acknowledges that such party has not executed this Agreement on reliance on any promise, representation, conduct or warranty of any other party not rxpressly set forth in this Agreement. 8. Binding Effect. This Agreement shall bind and inure to the benefit of all successors, assigns, tenants, spouses, children, and heirs of the parties, as well as all past, present, and future occupants of the Project. Further, Plaintiff represent and warrant that no other person or entity 29253-00170 3237887 .1 4 has or claims ~o have any interest in the Project or the improvements thereon nor does any other person or entity have or claim to have any interest in any of the claims, demands causes of action, obligations, damages or liabilities described herein. Plaintiff moreover rep;esents and warrants that it has not sold, assigned, transferred, conveyed, or otherwise disposed of any claim, demand, cause of action, obligation, damage or liability discussed herein. 9. Counterpart, This Agreement may be executed in a number of counterparts and each counterpart signature shall, when taken with all other signatures, be treated as if executed upon one original of this Agreement. A facsimile signature of any party shall be binding upon that party as if it were an original signature. I 0. Further Assurances. To the extent any documents are required to be executed by any of the parties to effectuate this Agreement, each party hereto agrees to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement. 11 . Representations and Warranties. The parties hereto represent and acknowledge that each of them has been represented by counsel with respect to this Agreement and all matter covered by and related to such agreement. Each party has been fully advised with respect to all rights which are affected by this Agreement and each party has authorized and directed their respective attorneys to execute and deliver such other and further documents as may be required to carry out the terms of the this agreement. The parties hereto further represent and acknowledge that neither party has assigned, sold or in any fashion in whole or in part, any of the rights, claims or causes of action which forms the basis of this Action, other than specified in this Agreement and no other persons or entities, has any rights, interest in or claims to such rights, claims, or causes of action other than those specified in this Agreement. 12. Authority. Each party to this Agreement represents and warrants that he or it is legally competent to execute this Agreement and accepts full responsibility therefor. Each person executing this Agreement on behalf of a corporation or other entity represents and warrants that he has the power and authority to execute this Agreement on behalf of that entity and that this Agreement has heen duly authorized by that entity. 13. Final Paragraph. This paragraph 13 is the final paragraph ofthe Agreement executed by the parties. 29253-00170 323 7887 .I 5 SIGNATURES OF THE PARTIES Dated :1nD.a:h I() l , 2015 ATTEST: BERNICE E . SEIDEL , Clerk Board of Supervisors By ~S¢-.ro &sh?'f2 Deputy Dated: ;?;a I I , 2015 Dated : ______ , 2015 292 53-00 17 0 323 7887 .1 t.hruc--Y'(\()._,Y\ tcuid ct .Supuv~.s Title df signator c r:-o I ct>~P. s: c=c.. T . I r f · t 1 1t e o stgna or Hanis Construction Title of signator 6 SIGNATURES OF THE PARTIES Dated: ______ , 2015 County of Fresno Title Dated: ______ , 2015 Sunset Landscapes Title Dated: ZM /P '2015 Harris Construction • Title 29253-00170 3237887.1 6 APPROVED AS TO FORM. Dated: ~ / H , 2015 1 Dated: , 2015 Manuel Garcia Dated: 2 J / Q . 2015 -~'-!-, --'-..V......-- Attorneys for Sunset Landscapes , Inc. ~ Martin T. Synder~ Attorneys for SLmset Landscapes, Inc. Dated: ------' 2015 Michael R. Johnson Attorney for HarrisConstruction Co., Inc. 29253-00170 3237887.1 7 APPROVED AS TO FORM. Dated: ------' 2015 Dated: J;/;/;·)' ' '2015 .. ~' Dated: ------' 2015 Dated: ------' 2015 2925 3-0 017 0 3237887 . I Marshall C. Whitney Mandy L. Jeffcoach Attorneys for County of Fresno Attorneys for Sunset Landscapes, Inc. Martin T. Synder Attorneys for Sunset Landscapes, Inc. Michael R. Johnson Attorney for HarrisConstruction Co., Inc . 7 APPROVED AS TO FORM. Dated: ______ , 2015 Dated: ______ , 2015 Dated: ______ , 2015 Dated: -( .dJruary ( 3. 2015 Fund 0400 Subclass 10100 Org 8830 Account 5800 29253-00 170 3237887.1 Marshall C. Whitney Mandy L. J effcoach Attorneys for County of Fresno Manuel Garcia Attorneys for Sunset Landscapes, Inc. Mattin T. Synder Attorneys for Sunset Landscapes, Inc . / on Attorney for HarrisConst uction Co., Inc. 7