HomeMy WebLinkAboutReso 045-90 CivCntrFinalAcceptRESOLUTION N0.
45 - 90
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
PAPPROVING THE FINAL ACCEPTANCE OF CIVIC CENTER PROJECT
AND A MUTUAL RELEASE AGREEMENT WITH DICKMAN NOURSE, INC.
AND AUTHORIZING STAFF TO MAKE AN ADDITIONAL APPROPRIATION
WHEREAS, the Dublin Civic Center Project was constructed under an agreement with
Dickman Nourse, Inc. (DNI); and
WHEREAS, the City Council authorized the filing of a Notice of Completion, which
was recorded with the County Clerk on February 27, 1990; and
WHEREAS, the City Attorney's Office has developed a Mutual Release Agreement with
DNI; and
WHEREAS, the Agreement will authorize the final acceptance of the project and
establish a procedure for all amounts payable to DNI; and
WHEREAS, although the total project cost was within Budget, an additional
appropriation will be necessary for Fiscal Year 1989/90 due to expenses being incurred
later than anticipated.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby take the following actions:
Accept the Dublin Civic Center Project Improvements in accordance with the Mutual
Release Agreement, attached hereto and by reference made a part hereof.
Approve the Mutual Release Agreement and authorize the Mayor to execute said
Agreement on behalf of the City.
Authorize the City Treasurer to issue all payments due Dickman-Nourse, Inc. pursuant
to the Mutual Release Agreement.
4. Authorize the Finance Director to make a supplemental appropriation of funds to the
Dublin Civic Center Project for Fiscal Year 1989/90. Said supplemental appropriation
shall be based upon final project costs and shall be made from remaining Dublin
Information, Inc. (DII) funds and any General Funds necessary to close the project. The
supplemental appropriation shall not result in a total project expense greater than the
total Civic Center project cost identified in the approved 1989 update to the 1988-1993
Five Year Capital Improvement Program.
PASSED, APPROVED AND ADOPTED this 23rd day of April, 1990.
AYES: Councilmembers Hegarty, Jeffery, Snyder, Vonheeder and Mayor Moffatt
NOES: None
ABSENT: None
ATTEST:
C~rk~
MUTUAL RELEASE AGREEMENT
This agreement is entered into by and between the Oity of
Dublin ("City"), a municipal corporation and Dickman-Nourse, Inc.
("DNI"), a California Corporation.
RECITALS
A. On or about December 21, 1987, the City and DNI entered
into an agreement ("Contract Documents") for the construction of
the Dublin Civic Center ("project"). In order to fulfill its
responsibilities and obligations under the Contract Documents,
DNI subcontracted out portions of the work required by the
Contract Documents to various subcontractors.
B. The project is complete, the City occupied it on
September 30, 1989, accepted it on February 26, 1990 and recorded
a Notice of Completion on February ~27, 1990.
C. During the project, disagreements have arisen between
the City and DNI regarding their rights and responsibilities
under the Contract Documents.
D. The parties to this agreement desire to resolve'their
present disputes, settle their differences regarding the same,
provide for final payment and provide for mutual releases, with
certain specific exclusions, upon final payment.
NOW, THEREFORE, in consideration of the mutual promises and
forebearances set forth herein, the parties agree as follows:
1. The City currently controls the sum of $100,000
in an escrow agreement for security deposits in lieu of
retention. The City agrees to instruct the escrow agent, Wells
Fargo Escrow Services, to release all securities held pursuant to
paragraph 14 of said escrow agreement. The City further agrees
to pay to DNI on April 24, 1990, and DNI agrees to accept, the
sum of $152,696.80 as and for final payment for the project
through Change Order #160 less the sum of $24,700 for the agreed
value of the punch list items set forth in Exhibit "A" attached
hereto and incorporated herein and less the sum of $50,000. The
City agrees to release the sums set forth in Exhibit "A" as each
punch list item is completed. If any punch list item remains
uncorrected in the reasonable determination of the City Engineer
by June 1, 1990, the sum attributable to its correction shall be
forfeited by DNI and DNI shall have no further liability to the
City for its completion subject, however, to exceptions in
paragraph 2 hereof, provided that City, in its reasonable
discretion, can extend the June 1, 1990, date by up to thirty
(30) days as to specified items on the punch list.
2. Except as set forth below, the City, its respective
officers, agents, predecessors, successors, assigns and related
entities ("First Releasors") agree to release and fully discharge
DNI from all known and unknown claims that could be asserted by
First Releasors, past, present or future, which relate to the
Rev. 4/6/90
4/lo/9o
4/17/9o
project. Except as set forth in the following sentence, the
First Releasors expressly waive their rights under California
Civil Code Section 1542 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 MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the foregoing, it is expressly understood between
the parties to this agreement that nothing contained herein shall
preclude the First Releasors from any of the following: (a)
asserting a claim against DNI for guarantee and warranty under
the Contract Documents; (b) asserting a claim against DNI for any
"latent deficiency" in the construction of the project as that
term is defined in California Code of Civil Procedure ~ 337.15;
(c) asserting a claim against DNI for indemnity for any claim
against the City contemplated by Section 1.18 of the agreement or
within the scope of insurance coverage or sureties afforded the
City by or through DNI as a condition of the Contract Documents
3. Except as set forth below, DNI, its respective
officers, agents, predecessors, successors, assigns and related
entities ("Second Releasors") agree to release and fully
discharge the City from all known and unknown claims that could
be asserted by Second Releasors, past, present or future, which
relate to the project. Except as set forth below, the Second
Releasors expressly waive their rights under California Civil
Rev. 4/6/90
4/10/90
4/17/90
3
Code Section 1542 as set forth in paragraph 2 above.
Notwithstanding the foregoing, it is expressly understood between
the parties to this agreement that nothing contained herein shall
preclude the Second Releasors from asserting a claim against the
City for any claim against DNI asserted by Olympia Drywall Co.,
Pim Electric Inc., and Renfrow's Inc., ("Third Party Claimants"),
for losses, costs or damages arising out of the project caused by
delays to Third Party Claimants, changes in the work, extra work,
increased or decreased scope of work, 'rejection of claims or
extensions of time caused by the City, its agents or
representatives. Provided, however, this exception to this
general release shall not be construed 1) as an independent
source of liability of the City either to DNI or Third Party
Claimants, 2) a modification, waiver, or release of any
provisions of the Contract Documents, 3) a basis for DNI to
assert its own claim, .independent of Third Party Claimants'
claims, for losses, costs or damages caused by delays, changes in
the work, extra work, increased or decreased scope of work,
rejection of claims, defense of claims by Third Party Claimants
or extensions of time caused by the City, its agents or
representatives, 4) an agreement for the benefit of any third
party including but not limited to Third Party Claimants. The
parties hereto agree that the provisions of this Mutual Release
Agreement shall not be construed to violate the provisions of
Section 7100 of the Public Contracts Code.
Rev. 4/6/9O
4/10/90
4/17/90
4. Each of the parties hereto acknowledges that it may
hereafter discover facts different from or in addition to those
it now knows or believes to be true with respect to the claims,
demands, damages, debts, liabilities, actions or causes of action
herein released, and hereby agrees that these releases shall be
and remain in effect in all respects as complete, general and
mutual releases as to the matters to be released, notwithstanding
any such different and additional facts.
5. Each of the parties hereto represents and warrants that
it has not heretofore assigned or transferred or purported to
transfer or assign, to any other person, firm or corporation, any
claim, demand, damage, debt, liability, account, action or cause
of action herein released. Each party hereto agrees to indemnify
and hold harmless each other party hereto against any claim,
demand, damage, debt, liability, account, action, cause of
action, cost or expense including attorneys' fees actually paid
or incurred, arising out of or in connection with any such
transfer or assignment or purported or claimed transfer or
assignment.
6. This agreement is the result of a compromise and shall
never at any time for any purpose be considered as an admission
of liability or responsibility on the part of the parties herein
released, nor shall the payment of any sum of money in connection
Rev. 4/6/90
/10/90
5
with the execution of this agreement constitute or be construed
as an admission of any liability whatsoever of any of the parties
herein released, who continue to deny such liability and to
disclaim such responsibility. The parties further agree that the
negotiations that resulted in this agreement are subject to
California Evidence Code SS 1152 and 1154.
7. The undersigned hereby represent and warrant to each
other that they have the legal capacity and authority to enter
this agreement and to grant the releases set forth above, and
that the undersigned have the sole right and authority to execute
this agreement.
8. This agreement contains the entire agreement between
the parties hereto with respect to the matters set forth herein
and shall be binding upon and shall inure to the benefit of the
executors, administrators, personal representatives, heirs,
successors, and assigns of each party hereto. This agreement
shall not be modified except by way of a further writing executed
by all the parties hereto.
9. The parties hereto have cooperated in the drafting and
preparation of this agreement and, therefore, this agreement
Rev. 4/6/90
4/10/9o
4/17/90
6
shall not be construed against any party. The parties expressly
waive the provisions of California Civil Code S 1654, providing
that ambiguities are to be construed against the drafting
parties.
10. This agreement supersedes all previous agreements
between the parties.
DATED:
April..199o
DATED: April /g , 1990
City of Dublin
Dickman-Nourse Inc.
By:~ ~'
APPROVED AS TO FORM AND CONTENT:
.//~ttorneys for City'
J :\WPD\MNRW\114~GREE\DICKMANA.SRM
AIKEN, KRAMER & CUMMINGS,
INCORPORATED
Rev. 4/6/90
Rev. ~,~V~0
7