SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
The matter entitled Bay Cities Paving & Grading, Inc., a California corporation v. City of Santa Rosa, a body politic, and Does 1-50, Sonoma County Superior Court Case No.
SCV265333 (“Action”), was mediated before Kenneth M. Malovos, Esq. on March 4, 2024. The Parties hereto have agreed to settle all claims arising out of the Action pursuant to the following terms and conditions as set forth in this Settlement Agreement and Mutual Release (“Agreement”).
1. Parties. Parties to this Agreement are Bay Cities Paving & Grading, Inc. (“BCP&G”), City of Santa Rosa (“COSR”), and GHD, Inc. (“GHD”). BCP&G, COSR, and GHD shall collectively be referred to as the Parties.
2. Project. “Project” shall mean and refer to the design and construction of the City of Santa Rosa (the “City”) Stony Point Road Reconstruction and Widening Phase 2 Project, located along Stony Point Road, between Barndance Lane and Sebastopol Road, in Santa Rosa, California.
3. Mutual Release. Receipt by BCP&G of all funds in Section 6 is a condition precedent to this mutual release taking effect. The Parties acknowledge and agree that the releases they are obtaining hereunder constitute a material inducement for them to enter into this Agreement. Upon the execution of this Agreement by all Parties hereto and subject to the terms and conditions of this Agreement, the Parties, for themselves, their respective heirs, successors, personal representatives, administrators, executors, assigns, receivers, partners, insurers, employees, agents, attorneys, subsidiaries, parent companies, shareholders (past, current and future), officers, directors, and accountants, hereby mutually release, remise, and discharge forever each other, and their respective heirs, successors, personal representatives, administrators, executors, assigns, receivers, partners, employees, agents, attorneys, subsidiaries, parent companies, shareholders (past, current and future), officers, directors and accountants, and each of them, and anyone chargeable on their behalf, of and from any and all, and all manner of, actions, causes of action, claims, cross-claims for indemnification and/or contribution, suits, arbitrations, settlements, debts, dues, sums of money, accounts, reckonings, bonds, bills, special- ties, covenants, controversies, agreements, promises, variances, trespasses, injuries, damages, costs, expenses, attorneys’ fees, judgments, executions, obligations, and demands whatsoever, in law or in equity, known or unknown, patent or latent, that the Parties now hold or have at any time heretofore owned or held or may at any time own or hold against any other Party by reason of acts, circumstances, facts, events or transactions arising from or relating to the Project, and the Action excepting there from claims relating to and/or arising from latent construction defects in the work performed by BCP&G.
4. Enforceability. This Agreement shall be enforceable by and among the Parties hereto pursuant to C.C.P. section 664.6.
5. California Civil Code Section 1542 Waiver. Receipt by BCP&G of all funds in Section 6 is a condition precedent to this waiver taking effect. The Parties acknowledge that they are aware of the provisions of California Civil Code Section 1542 and, specifically waive ATTACHMENT 1
the benefits of those provisions, with respect to the claims released under this Agreement, which provide as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE
AND THAT, IF KNOWN BY HIM OR HER , WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.”
6. Consideration.
A. GHD shall pay BCP&G the sum of Three Million Seven Hundred Fifty Thousand dollars and no cents ($3,750,000.00); and
City shall pay BCP&G the sum of Two Million Seven Hundred Fifty Thousand dollars and no cents ($2,750,000.00) ;
B. BCP&G shall provide a fully executed dismissal with prejudice as to the entire Action to Counsel for the City to be held until written notification by BCP&G’s counsel that all payments as set forth above have been received by BCP&G. Upon said notification, the dismissal will be filed with the Court by City and a copy provided to all Parties;
C. The Parties agree to waive all costs of suit and attorneys’ fees, including those associated with the preparation of this Agreement; and
D. This Agreement is contingent upon the Santa Rosa City Council appropriating sufficient funds to pay the City’s portion of the settlement amount.
The matter shall be placed on the agenda for a City Council meeting to be held no later than 30 days following the date the last Party executes this Agreement (“Effective Date”). No later than 30 days following the City Council’s adoption of a resolution appropriating the funds, City and GHD shall overnight payment of their respective portions of the settlement amount to BCP&G. If within 60 days of the Effective Date, the City Council fails to appropriate the funds necessary to pay the City’s portion of the settlement amount of this Agreement, this Agreement shall be null and void and no Party shall have any further obligation hereunder.
7. No Admission of Liability. No part of this Agreement, or this shall be alleged, taken, or construed as an admission of any liability, responsibility, fault or wrongdoing by any Party. The Parties agree that this is a compromise of disputed claims and a settlement of all claims asserted in the Action.
8. Severability. In the event that, at any time after the execution of this Agreement, any portion or provision of it is found to be illegal, invalid, unenforceable, non-binding, or
Dated: CITY OF SANTA ROSA By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Dated: GHD, INC.
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Chris Hunter
CEO Americas
March 26, 2024